Australian Salaried Medical Officers' Federation (NSW) v State of New South Wales

Supreme Court of NSW|2024-03-19|Before: Walton J, Ward CJ, Garling J

JUDGMENT

By a Notice of Motion dated 7 March 2024 ("the Motion"), the Australian Salaried Medical Officers' Federation (NSW) ("ASMOF") sought an order for discovery of 14 categories identified in Schedule A of the Motion.
The background circumstances of these proceedings, and to some extent the application for discovery, are substantially set out in the judgment in the same proceedings published immediately prior to this judgment: Australian Salaried Medical Officers Federation (NSW) v State of New South Wales (No. 3) [2024] NSWSC 362. There are, nonetheless, some further background considerations raised by the defendant to which I will return.
As to the relevant legal principles, I agree with the submission for ASMOF that attention should be given to the judgment of Supreme Court of New South Wales in Elanor Operations Pty Ltd v Chief Commissioner of State Revenue (NSW) [2020] NSWSC 840 at [49] (Ward CJ of Eq, as her Honour then was). A touchstone for discovery is relevance to the fact in issue in the proceedings. However, the Court retains a discretion as to whether to order discovery and as the defendant correctly points out the power to order a party to give discovery must be exercised having regard to the guiding principles in ss 56 to 60 of the Civil Procedure Act 2005 (NSW) ("the CPA"), including the overriding purpose in s 56 of the CPA, facilitating the just, quick and cheap resolution of the real issues in the proceedings.
When seen in that light, the four propositions advanced by the defendant as the overarching consideration affecting the exercise of the Court's discretion carry considerable force in the resolution of the Motion. Omitting footnote references, those submissions were as follows: "First, this proceeding is set down for an initial trial commencing on 6 May 2024. ASMOF has been joined in that trial for more than six months. Naturally, solicitors and instructors for the Defendant will need to spend much of the next six weeks duly preparing for that trial. Secondly, when Garling J set the matter down for trial, on 8 September 2023, his Honour made orders for the orderly discovery of documents to ASMOF well clear of the trial dates. Discovery of eight broad categories to ASMOF was ordered, including the personnel files, rosters, pay records, emails, pager and training records of the Specified Employee (later nominated by ASMOF as Dr Sanderson). No doubt mindful of the need to have discovery completed well before the trial, Garling J ordered that such discovery be provided by the Defendant by 22 December 2023. The Defendant duly discovered 5,399 documents in response to those categories by that date. Further, Garling J ordered the Defendant to provide to ASMOF all of the documents discovered in the Fakhouri proceeding. The Defendant provided to ASMOF approximately 13,336 documents pursuant to this order. Thirdly, until ASMOF first sought the documents now the subject of its motion from the Defendant on 6 March 2024, it had raised no issue with the scope of the discovery orders made by Garling J, or with the discovery made by the Defendant, except for two discrete issues in two categories which were promptly addressed. ASMOF has given no explanation for its delay in seeking the present orders until two months prior to the trial. Nor has it pointed to any change of circumstance which would justify having the Court revisit the issue of appropriate discovery. That alone is reason to dismiss the motion. Fourthly, ASMOF took a further opportunity to seek documents from the Defendant by serving a notice to produce (NTP) on 25 October 2023. The NTP sought 15 categories of documents, four of which are identical to categories of discovery now sought (addressed further in paragraph 14 below). However, ASMOF withdrew the NTP after detailed objections were raised by the Defendant on 1 November 2023. Notwithstanding this, the Defendant voluntarily provided to ASMOF 498 documents that would have been responsive to it."

Category 1

ASMOF submitted that the documents in Category 1 will reveal the extent of overtime worked in the RPA radiology department, the extent to which such overtime was anticipated or planned and will reveal whether the hospital /department had budget limitations on the amount of money that could be spent on overtime. It was submitted that those matters are relevant to the following Merck questions: Question 15(d), 16(a) and 16(c). It was further contended that the plaintiff filed evidence which points to budgetary considerations operating to limit the making or approval of overtime claims, and that some of the evidence filed by Dr Fakhouri had disclosed budgetary limitations on overtime elsewhere within New South Wales.
ASMOF disputed the evidence of Kathleen Plowman in her affidavit of 22 March 2024 that it would take three months to locate, review and provide discovery of the documents in this category. It was submitted that the estimate is not satisfactorily borne out by her evidence.
I agree with the submission of the defendant that, on the evidence, this category is overly broad and oppressive. ASMOF seeks 'any document recording' of a wide range of matters, including overtime worked by all registrars in the Radiology Department at Royal Prince Alfred Hospital, expenditure and budgeting for overtime and communications with the Head of the Radiology Department relating to those matters over a seven-year period.
Further, in my view, Ms Plowman gives plausible evidence that the discovery of documents in this category would be very substantial, would certainly not be completed before the trial and would considerably delay the commencement of the trial. I agree with the submission of the defendant that the critique of Ms Plowman's evidence by ASMOF is misplaced. A one-hour estimate is limited to the time taken to search and export relevant email accounts and it does not appear to include the time taken to search any other potential repositories of relevant documents. In short, the uncontested evidence is that it will take months to respond to provide discovery in this category. It is unnecessary in this light to consider the defendant's argument that this category is expressed in far more general terms than could be justified according to r 21.2(2) of the Uniform Civil Procedure Rules (NSW) 2005 ("UCPR").
Finally, the discretionary considerations against the grant of discovery are potentially powerful with respect to this category.
Discovery should be refused with respect to Category 1.

Categories 4, 9 and 12

It should be noted at the outset that ASMOF has made no submissions concerning categories 4, 9 or 12. Accordingly, the Court cannot be satisfied that the documents are relevant to a fact in issue.

Category 5

As to Category 5, ASMOF's reliance upon r 21.10(a) of the UCPR does not assist its argument. This category sees all of Dr Waugh's email mailbox because an affidavit indicated that inbox had been searched, I agree with the defendant that this is irrelevant because r 21.10 is concerned with Notices to Produce and not discovery. The provision is only concerned with the production of documents to which a "direct allusion" is made in an affidavit: New Cap Reinsurance Corporation Ltd (in liq) v Daya [2008] NSWSC 763 at [44] (Austin J).
The above reasons for refusal of discovery in this category are buttressed by reference to the inadequate way in which the categories are expressed. They are in very broad terms thereby giving rise to further questions as to relevance.

Category 14

The documents in this category have already been discovered by ASMOF for the period of Dr Sanderson's employment pleaded in the third Further Amended Statement of Claim. As mentioned in the judgment handed down concurrently with this judgment, the amendment to that iteration of the Statement of Claim is yet to be determined by the Courts. That category can await attention after the consideration of that issue.

Category 2

These documents relate to documents sought in the Notice to Produce which ASMOF withdrew on 1 November 2023. The defendant submitted that the Court should not permit the ASMOF to revisit these categories in the form of discovery nearly five months later with no evidence of a change in circumstances.
The defendant also relied upon Ms Plowman's affidavit that the application is oppressive and the search will take three months.
It is not at all clear to me on the evidence of Ms Plowman as to just why the documents in this Category would take that period of time to locate. Overall, as the defendant properly conceded, Ms Plowman does not describe the basis for her time estimate.
ASMOF made a substantial submission that subcategories 2(a) to (h) and (j) have relevance in that they seek minutes and other records specifically referred to in the affidavits relied upon by the defendant. It was further submitted that these categories are relevant to Questions 2(a), 5 and 16 under the Merck Orders.
The defendant's reliance upon the previous withdrawal of the Notice to Produce by ASMOF does represent a significant discretionary consideration. However, I am concerned that ASMOF should potentially be placed in a position to test the evidence to which the documents in this category relate given the reliance upon them in the evidence of the defendant.
Save for sub-category (i), the Court's present inclination is to grant discovery as to Category 2, but to provide that the defendant may further address the Court as to any particular matters in the sub-categories which might prove oppressive in the present circumstances on a particular basis. That is not an invitation to revisit wholesale the considerations in the category, but to identify areas which, have not been the subject of detailed submissions as to substantive oppression in the sub-categories.

Category 7

The defendant submitted that Category 7 is irrelevant to the determination of the separate questions by reference to Dr Sanderson because he was not a rotating registrar. Reliance was also placed upon the factors relied upon with respect to Category 2.
However, it appears to me that ASMOF was correct to submit that the documents in Category 7 are relevant to the question about whether the defendant was aware of, or operated on any assumption about whether additional hours were being worked by junior doctors, and if so, whether such an assumption was reasonable in the circumstances. This relates to the Question 16 of the Merck Orders. Dr Sanderson referred to the complaint which came from doctors at Concord Hospital and concerned the rostering of Radiology Registrars when they were on rotation in the RPA.
Ms Plowman's affidavit does not disclose any basis for oppression in this respect. Nor does the affidavit disclose that attempts have been made to search by reference to the identified authors of the relevant email.
In my view, the documents in Category 7 can be produced.

Conclusion

ASMOF should bring in Short Minutes of Order reflecting this decision. Those orders shall provide for the defendant to make further submissions with respect to particular sub-categories in Category 2 consistent with this judgment. Those issues may be mentioned at the directions hearing in this matter at 4.00pm Thursday, 11 April 2024.

DIRECTIONS AND ORDERS

ASMOF shall bring in Short Minutes of Order reflecting this decision by 12 noon, Thursday, 11 April 2024.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 April 2024

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