Australian Rail, Tram and Bus Industry Union v Metro Trains Sydney Pty Ltd

ABRAHAM J: 1 The respondent in the proceedings, Metro Trains Sydney Pty Ltd (MTS) seeks the following order pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) and r 1.32 of the Federal Court Rules 2011 (Cth), that the second applicant, Mr Car, provide information as to the name, location and contact details of any medical clinic, hospital or health provider that he has attended in the last five years, so that subpoenas can be issued to those providers for documents said to be relevant to the issues in these proceedings. The applicants oppose the order, contending that the information is irrelevant, or if relevant, is a fishing expedition or would result in a substantial invasion of privacy. 2 The respondent relied on three affidavits in support of its interlocutory application: (1) Robert Felix Car affirmed 4 April 2019; (2) Nicholas Alwyn Dickinson affirmed 10 April 2019; and (3) Georgia Lucy Simmonds affirmed 11 June 2019. The proceedings 3 The applicants allege that MTS dismissed Mr Car on 27 March 2019 because of: (1) his membership and/or his role as a delegate of the Australian Rail, Tram and Bus Industry Union in contravention of s 346(a) of the Fair Work Act 2009 (Cth) (FW Act); and/or (2) his engagement in industrial activity and/or his exercising a workplace right, namely his involvement in preparing, developing and participating in the process of developing a majority support determination application, in contravention of ss 346(b), 340(1)(a)(ii) and/or 340(1)(b) of the FW Act. 4 Mr Nicholas Dickinson, Chief People and Performance Officer at MTS, was the decision-maker in respect of the dismissal. Mr Dickinson will give evidence at trial that the reason for dismissal was that he believed Mr Car had been dishonest when he completed a health questionnaire dated 22 February 2019. In that questionnaire, Mr Car denied that he had ever been told by a doctor that he had a sleep disorder, sleep apnoea or narcolepsy. Around 6 weeks earlier, on 4 January 2019, he had completed the same health questionnaire and checked the box that indicated he had been told by a doctor that he had a sleep disorder, sleep apnoea or narcolepsy. 5 Mr Car now admits he suffers from a sleep disorder or sleep apnoea and that he incorrectly completed the 22 February 2019 questionnaire. At the hearing of the applicants' interlocutory application for injunctive relief, he claimed (amongst other reasons given) that the error was a mistake. Argument 6 As noted above, the respondent submits the information sought is necessary to enable subpoenas to be issued to relevant medical providers. The period of five years was chosen as on the evidence currently available, it appears that Mr Car was diagnosed with sleep apnoea in 2015. The respondent also now intends to limit the medical records sought by any subpoena to those relating to sleep apnoea or perhaps some precursor leading to that diagnosis. While the precise terms of the subpoena were not identified, it would be limited to obtaining information which goes to addressing the matters identified in the respondent's submission. It is on that basis I consider this application. 7 The respondent submits that one of the issues at trial will be whether Mr Car's failure to accurately complete the questionnaire was deliberate or accidental. 8 The respondent submits that the documents are relevant for the following reasons. 9 It was submitted that the documents returned from the medical providers are likely to shed light on: (1) The date the sleep condition commenced (and hence the length of time Mr Car has been affected by it); (2) The date the sleep condition was diagnosed (and hence the length of time Mr Car has known of its existence); (3) The cost of any medical treatment; (4) The nature and extent of any medical treatment Mr Car has received for the sleep condition; (5) The effect of the sleep condition on Mr Car. 10 The respondent submits that such documents will assist in understanding the impact the sleep condition has had on Mr Car's life. 11 It was submitted that the greater the impact the sleep condition has had on Mr Car's life, the more unlikely it is that he could have forgotten about it when he completed the February 2019 health assessment form and that this increases the likelihood of the omission being deliberate. 12 The respondent submitted that the deliberateness or otherwise of the omission is relevant to the issues in these proceedings. First, because the objective truth of the reason for dismissal may be relevant to whether the decision-maker is believed, citing Gibbs v Palmerston Town Council (unreported, Gray J, 21 December 1987). Second, there will be a number of contested facts in the proceedings, and the determination of Mr Car's credibility will be an issue. Third, the applicant seeks reinstatement to his pre-dismissal position, and an important factor is whether trust and confidence in the employment relationship can be restored. 13 On the other hand, the applicants submit the documents sought are irrelevant to any facts in issue. 14 Regarding the respondent's assertion that the reason for Mr Car's dismissal was his alleged dishonesty, the applicants submit that the question of whether Mr Car's error in completing the health questionnaire was deliberate or otherwise is not an issue in these proceedings. Rather, it is submitted that the issue in question is whether Mr Car's exercise of a workplace right, involvement in an industrial activity or his role as a member or a delegate of the first applicant was a reason or factor for his dismissal. 15 The applicants submit that the plausibility of the alleged reason for Mr Car's dismissal, and whether there was material available to justify the allegation of dishonesty at the time, may be relevant in assessing the veracity of the respondent's alleged reason for dismissal. However, the applicants submit that only the material available to the respondent at the time of the termination of Mr Car's employment can be relevant to that issue. It is submitted that Mr Car's medical history, much less the cost of any medical treatment he received, does not bear on this issue in the proceedings, and is not relevant to any of the issues in the proceedings. 16 The applicants further submit that, even if the question of whether Mr Car's error was deliberate or accidental was a matter in issue, there is no contention regarding the fact that Mr Car was aware he had sleep apnoea. The applicants point out that Mr Car's condition was disclosed in October 2018, Mr Car attended a specialist assessment in December 2018 which was provided to the respondent and Mr Car disclosed the condition in the health questionnaire completed on 4 January 2019. 17 For these reasons, the applicants submit that there is no legitimate forensic purpose for the respondent to seek disclosure of Mr Car's medical providers or the production of his medical records. 18 The applicants also submit that if granted the subpoenas sought by the respondent would amount to a substantial invasion of Mr Car's privacy, particularly in relation to his medical records. It is submitted that the intrusion into Mr Car's privacy far outweighs any possible relevance of the documents sought to be produced. Consideration 19 As the purpose of obtaining the information sought is to enable subpoenas to be issued to the identified medical providers, it is necessary to consider this application against the principles relevant to the issue of a subpoena. Those principles are well established: see Wong v Sklavos [2014] FCAFC 120; (2014) 319 ALR 378 at [12]. It is unnecessary to repeat those principles. Suffice to say, there must be a legitimate forensic purpose in seeking the documents for them to be the subject of a subpoena. That is, they must have an apparent relevance in relation to the issues in the proceedings.The test for apparent relevance must necessarily be a generous one. It has been described as a low threshold because of the difficulty of determining actual relevance prior to trial: Boase v Axis International Management Pty Ltd (No 3) [2012] WASC 498 at [11]-[14]. The test is less stringent than that which applies to relevance in the context of the admissibility of evidence: Gloucester Shire Council v Fitch Ratings, Inc [2016] FCA 587 at [23]. 20 I accept that documents from Mr Car's medical providers are likely to shed light on the matters identified in [9]-[11] above. 21 In my view, substantially for the reasons relied on by the respondent, such documents have an apparent relevance in relation to the issues in the proceedings. 22 While, as the applicants correctly state, the issue is whether Mr Car's exercise of a work place right, involvement in an industrial activity or his role as a member or delegate of the first applicant was a reason or factor for his dismissal, that description does not exhaustively address the issues in the proceedings. 23 Mr Car in his affidavits asserted that the omission to include the sleep apnoea when completing the health questionnaire was a mistake. The applicants' submission also proceeded on that basis. Whether or not Mr Car's omission was a mistake goes to the question of his dishonesty, which is an issue in the proceeding. In argument the applicants accepted the question of dishonesty may be relevant to the issue of reinstatement, but submitted that it does not allow "carte blanche to seek documents". 24 While the applicants accept Mr Car can be challenged and cross-examined on that topic, they contend that the material before the Court, that is, the medical material from third party providers which are employment generated, including a specialist assessment, is a sufficient basis for that challenge. Those documents are necessarily limited in time frame and purpose. Mr Car's credit is relevant to facts in issue in these proceedings. As identified above, the documents sought directly from Mr Car's medical providers are likely to shed light on aspects of his medical condition. They have an apparent relevance in relation to the issues in the proceedings. In those circumstances, there is no basis to confine any challenge to the medical material already before the Court. 25 The applicants' submission also proceeded on the basis that Mr Car accepted that he had sleep apnoea and that he ought to have recorded that on the form, and, in effect that was sufficient to address the issues in the proceedings. However that submission does not address the respondent's argument that it is entitled to properly test the credibility of Mr Car. It also does not address whether Mr Car's conduct was dishonest. 26 As the respondent points out, part of Mr Car's claim is reinstatement, an important factor of which is whether the trust and confidence in the employment relationship can be restored. Whether Mr Car had been dishonest is relevant to that issue. In fairness, the applicants accepted that was so, but again contended the medical material from the third parties is sufficient to test that. I disagree. 27 Moreover, as the respondent contends, the objective truth of the reason for the dismissal may be relevant to whether the decision maker is believed. I appreciate that the applicants take issue with the respondent's interpretation of Gibbs v Palmerston Town Council which is said to support this proposition. Regardless, even without that basis, the other potential uses of the documents as described above are sufficient to demonstrate that they have an apparent relevance in relation to the issues in the proceedings. 28 I note also that if the subpoena is confined in scope in the manner acknowledged by the respondent, it will be less invasive than that originally contemplated. Moreover, it is documents within that more confined scope that have an apparent relevance in relation to the issues. In the circumstances, the interests of having the documents available to the respondent, outweighs any intrusion of Mr Car's privacy. Conclusion 29 I grant the order sought by the respondent. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Abraham.