Chen v Gold Coast Hospital and Health Service

Industrial Relations (Tribunals) Rules 2011 rr 41, 46

CFMEU v BHP Coal Pty Ltd (No 2) [2011] FCA 1396; (2011) 212 IR 313

Huyghe v State of Queensland (Mackay Hospital and Health Service) [2022] QIRC 014

Quenchy Crusta Sales Pty Ltd v Logi-Tech Pty Ltd (2002) 223 LSJS 266

Robson v Reb Engineering Pty Ltd [1997] 2 Qd R 102

Southern Equities Corporation Ltd (In Liquidation) v Arthur Andersen & Co (No 5) [2001] SASC 335

Mr PM Zielinski of counsel, instructed by MinterEllison for the Respondent.

[1] This is an application in existing proceedings filed by Dr Victor Chen (the Applicant) on 14 November 2022 in respect of disclosure.

[2] Dr Chen's application in existing proceedings sought a number of decisions:

1. The Commission to order further and better discovery from the Respondent to facilitate rational planning ongoing Commission steps to resolution.

1. The Commission to joinder matters PSA/2020/449, GP/2020/27 and TD/2021/20.

1. The Commission to order MinterEllison recuse themselves of all my further Commission processes with prima facie breach of my confidentiality of legal advice via Ms Nikki Khavari who was engaged by both parties concurrently August 2020 and advised me to delay taking legal action inter alia not to progress Public Service appeal where prior filing deadlines were missed in August 2020.

[3] At a mention of the matter on Thursday 1 December 2022, I heard submissions of the parties regarding each of the decisions sought by Dr Chen. For reasons given at that mention, I dismissed Dr Chen's applications for orders number 2 and 3. I indicated to the parties that I wished to have time to consider a 27-page Affidavit containing several exhibits which Dr Chen had filed in support of his application in existing proceedings and also wished to wait for the transcript of the hearing prior to considering the application for 'further and better discovery'. This decision deals with the request for further and better discovery and for the reasons which follow, I dismiss the application.

[4] Dr Chen attached a schedule to his Form 4 - application in existing proceedings which provided more particulars about what he is seeking by way of his application for 'further and better discovery'. The relevant part of that schedule requests:

1. This part of the application is for the Commission to order further and better discovery from the respondent, in particular:

1. Further and better discovery around current employment details (whether temporary/permanent) and intent in 2023 around Dr Tony Vo, particularly whether Dr Vo is or will remain a temporary or become a permanent employee interventional cardiology SMO, what quanta FTEs while parties are awaiting Commission processes. This is directly relevant evidence to enable efficient rational planning ongoing Commission steps, such as litigation steps around practicableness of my reinstatement and I respectfully submit no rational planning of ongoing Commission steps is possible in absence of further and better discovery around these factual matters;

1. Further and better discovery around confirmed upcoming funding permanent 0.3 to 0.6 FTE interventional SMO positions, already widely known to colleagues, also other upcoming funded 1.0 FTE SMO positions. Senior colleagues disclosed to me via SMS 3 November 2022 Dr Carl De Wet requested and obtained agreement from colleagues to reduce to part-time "fractional so they have a few sessions to employ an interventional cardiologist... Carl stated [during a recent meeting] that his biggest concern was the interventionalists who were under the greatest pressure and on call too frequently";

1. In light of the above, I respectfully submit need for further and better discovery of other directly relevant evidence to current factual staffing level circumstances in order to weigh up whether prior respondent filings since 2020 and affidavit evidence filed for the respondent was truthful, credible where it was previously affirmed on 9 June 2022 that the current "six interventional cardiologists are sufficient to ensure that the on-call workload is adequately shared to avoid undue fatigue":

1. Further and better discovery from the respondent that prior status quo staffing levels was 7 interventionalists that included my continuous regular and systematic rostering 2014 to 2020 with further and better discovery confirmation this did not lead to prior unsustainable nor factually any Departmental budget deficits to mid-2020;

1. Further and better discovery of GCHHS collegial SMO email threads around July 2022, initiated by a Clinical Director that the current roster was still "unsustainable", "unsafe", "needs more staff" and further and better discovery from the respondent what were the GCHHS executives' managerial responses;

1. Further and better discovery from the respondent that 1 of 6 current interventional cardiologists, Dr Vo is currently a temporary fixed-term part-time SMO and further and better discovery whether Dr Vo's uncontroversially known ongoing operationally required role will terminate at a fixed term contract expiry date or whether GCHHS will act to extend the temporary contract or convert Dr Vo to permanent employment prior to completion of current Commission processes and decisions.

1. A prior affidavit filed by the respondent dated 10th (unsigned) or 23rd June 2022 affirmed GCHHS previously held off on a 1.0 FTE SMO appointment March 2021 due to rational regard that the Commission might order my conversion to permanent employment as a result of my Commission public service appeal.

1. My previous counsel Mr Massy advised during Teleconference 16 August 2021 his concurrence to the view that it would amount to manifested GCHHS contempt of Commission processes (and extensive prior wastage of public expenditure on legal fees) if GCHHS acted to make permanent appointments now to any new interventional SMO vacancies that would prejudice outcome of my reinstatement applications, acted whilst the respondent is aware questions of my reinstatement and conversion to permanent employment are current on-foot matters before the Commission.

1. Further and better discovery evidence factual circumstances around my unfair dismissal May or June 2021 when sever understaffing in a public hospital life preserving service after April 2021 (interventional cardiologist numbers at GCHHS reduced from prior status quo since 2014 of 7 to 5 interventionalists), knowledge of facts of understaffing whilst awaiting Commission processes was given as evidence to eternal investigators for Severity Assessment Code 1 ("SAC1") patient incident reviews.

1. I respectfully note this request for orders for further and better discovery are wholly the same discovery considerations in requests made via correspondence K&L Gates to MinterEllison 22 June 2022:

1. "2 important issues in this case are whether: (a) there was/is an ongoing operational need for the Applicant to be employed by the Respondent...; and/or (b) the Department was (and is) fully staffed"; and,

1. "[requests for discovery] any and all documents constituting, evidencing, recording or referring to...decision[s] to appoint or re-appoint Dr Vo on each and every occasion...".

1. I affirm corresponding with the respondent on 4 November 2022 requesting voluntary further and better discovery around Dr Vo's employment details and the respondent replied through their representative Ms Victoria Hepburn of MinterEllison on 8 November 2022: "We do not agree that these documents are directly relevant to the matters at issue in these proceedings and our client will not be voluntarily disclosing documents in these categories."

1. In light of the above response from the respondent (that I view as unreasonable and vexatious and an abuse of process via interposing further unnecessary and unreasonable delays) I seek for the Commission to now order further and better discovery of directly relevant evidence, especially around the GCHHS' ongoing temporary employment of Dr Vo, imminent intentions and further and better discovery facts of an upcoming funded permanent 0.3 FTE interventional cardiology vacancy.

[5] At paragraphs 29 to 31 of the schedule to his Form 4, Dr Chen summarises his position:

1. Application for further and better discovery: The Respondent has refused and therefore the applicant respectfully seeks for the Commission to order further and better discovery from the respondent inter alia:

1. the fully relevant current employment details and intentions for temporary interventional cardiologist Dr Vo;

1. further and better discovery from the respondent around a widely-known upcoming vacancy of a funded 0.3 FTE SMO interventional cardiologist position.

30. This further and better discovery from the respondent of directly relevant evidence:

1. whether the Department was (and is) fully staffed;

1. whether there was/is an ongoing operational need for the Applicant to be employed by the Respondent.

1. This further and better discovery from the respondent must precede any rational efficient planning towards latter Commission steps.

[6] I have read Dr Chen's affidavit. Dr Chen asks that the affidavit be read alongside his other filed material and previous affidavits. I note that the affidavit largely sets out the history of the matter and Dr Chen's understanding of the circumstances surrounding a number of matters related to his employment. Dr Chen also sets out his disagreement with a range of statements made by the Respondent.

[7] During the mention of the matter to discuss the interlocutory application, I asked Dr Chen if there was anything he wished to say in support of his application, noting that I did not need him to repeat anything that he had already filed in writing. With regard to the discovery Dr Chen is seeking about Dr Vo's employment, he said:

...I made some very simple queries, after being instructed not to contact my colleagues at the risk of contaminating evidence - I'm - I'm not - not too sure - I quickly discovered, yes, that there's quite easily discoverable a 0.3 permanent interventional role, and that's for someone to be on call, because the - the current team are rostered too frequently, because there's never been a restructure or redundancy of the seven interventionalists. So the - agreed issues and fact in contention is whether there is an operational need for my role and a vacancy. So I - I - I've very - I mean, I don't want to sound silly, but, yes. It - was a very simple matter of sending an SMS to one of my colleagues, and he - he stated that there is a vacant FTE, so it - so it really solved the matter of discovery. It's just a matter of getting it put into evidence, whether he's called as a witness or...[1]

And - or whether the hospital should just voluntarily - or you should order that discovery, because otherwise if I [indistinct] get lawyers it's going to be happening, you know - probably run out of lawyers in - Queensland, potentially, because they'll all have to be called to the hearing. I would...[2]

[8] I asked Dr Chen a number of times if he believed he had evidence of the vacant FTE or permanent FTEs he says are available. Dr Chen appeared to confirm that he had knowledge of these matters and his affidavit leads me to believe that he has formed a view based on material available to him or things he has been told regarding the vacant positions and the matters he raises. Dr Chen appeared to seek that the Respondent produce evidence to confirm or deny his claims because 'it would give discovery evidence that the respondent's position is unreasonable and vexatious because - what are they wishing to argue? Are - are they wishing to argue that there isn't an operational requirement for my role?'[3]

[9] It remained unclear exactly what Dr Chen was seeking, so I asked him to specifically address what he sought to be provided:

COMMISSIONER: ... What specifically are you seeking to have handed over to you?

DR CHEN: That there is a 0.3 FTE permanent interventional role that is due to be recruited.

COMMISSIONER: What would that look like? What does that evidence look like?

DR CHEN: There are management planning documents, budget documents - there would be documentation, or the respondent could simply file an affidavit that - that what I'm saying is not true. So - so at this meeting were Rohan Jayasinghe and Dr Carl de Wet. They - they asked and arranged for this reallocation of 0.3 FTEs and that the - the role - the - the reason that they wanted these FTEs was to transfer them for an interventional cardiology role.

I mean, if they want to - I mean, that - that would resolve, actually, the matter, rather than finding out at the hearing that - that the hospital's made unreasonable and - and - and - and vexatious filings and submissions and - and [indistinct] now was the vacancy. I mean, it - it - it may well come out that , yes, someone has been extended or someone new has been hired. I mean - but we don't want to be in the position where the hospital changes its [indistinct] operational details just to fit in with what they've said here because ---

COMMISSIONER: So... So can I... just check - so what you are seeking is for the respondent to provide you with a statement that indicates that they disagree with what you are suggesting?

DR CHEN: Well - well - well, Dr de Wet could - could reaffirm his affidavit of June...

COMMISSIONER: So, I'll just stop you there. I'll go to Mr Zielinksi. But as I'm sitting here listening to you, it just sounds to me like these are matters to be decided at the hearing. These are factual matters. You have a different view to the respondent, and the place to test that is during the hearing...[4]

[10] Mr Zielinksi made submissions regarding the request on the basis of Dr Chen's clarification regarding what he was seeking. Mr Zielinski said, 'what Dr Chen's really asking for, as you say, Commissioner, is a request for information, which is not a proper request for discovery'.[5]

[11] Mr Zielinski went on to say that in any case, if:

there were plans afoot to hire an interventional cardiologist - which, incidentally there are not... documents that pertain to that wouldn't be directly relevant to this proceeding. That's not least because what we're talking about are operational matters that Dr Chen is complaining of two years after his - he no longer received shifts. Now, we accept that if there is an ongoing need for his type of work in the service, that is a matter that might be relevant to the question of reinstatement, and it's also a matter that might lead to a sort of train of inquiry that would have, in the past, provided a basis for discovery.

But the test before you, Commissioner, is direct relevance. Do any of these documents directly bear on the key issues, really, in this proceeding which go to why was Dr Chen dismissed and was it lawful or unfair. All of those things happened quite a long time ago, and it's not appropriate, in my submission, to really entertain the sort of approach that Dr Chen has done here, which is really, come before you in October, not be happy with the legal services he was provided - and that's really a matter for him to take up with those former lawyers and their insurers - and to burden the commission and the respondent with yet another discovery application, which is still suffering from some lack of clarity and, certainly, suffering from a lack of clarity as to what particular documents he's after. So that's all a very long way of saying, even taken at its very highest, there's just no basis for the discovery order to be made on the premise that Dr Chen has made today.[6]

[12] In reply, Dr Chen said that 'the delays practically do prejudice the outcome of reinstatement'.[7] Dr Chen said that Dr de Wet's affidavit was filed in June and will be 'hopelessly out of date as of today because he has, in fact, had a meeting two or three weeks ago, where he has planned for further FTEs to be allocated to interventional cardiology'.[8]

[13] I asked Dr Chen, '... won't there be an opportunity at the hearing of the matter to ask Dr de Wet those questions?'. Dr Chen replied that 'my outcome sought is reinstatement, so we - we would need the discovery relevant to the process where I'm seeking the outcome.'[9]

The relevant legislative provisions and legal framework

Industrial Relations (Tribunals) Rules 2011

[14] Rule 41(1) of the Industrial Relations (Tribunals) Rules 2011 ('the Rules') relevantly provides that the Commission may make a directions order about the conduct of the proceeding on the application of a party or on the initiative of the Commission. Rule 41(2)(o) provides that a directions order may relate to requiring disclosure of documents and r 41(2)(p) provides that a directions order may relate to requiring inspection of documents.

[15] Rule 46 of the Rules deals with the duty of disclosure and provides:

(1) If a directions order requiring disclosure of documents is made, a party must disclose any document that -

(a) is directly relevant to the proceeding or a matter in issue in the proceeding; and

(b) is in, or comes into, the possession of the party.

(2) A party must act under subrule (1) until the proceeding is concluded or the matter in issue is admitted, withdrawn, struck out or otherwise disposed of.

(3) Subrule (1) does not apply to a document in relation to which there is a valid claim to privilege from disclosure.

[16] On 1 March 2021, r 46(1)(a) was amended by the Industrial Relations (Tribunal) Amendment Rule 2021 (Qld) to insert the word 'directly'. The rule now provides that a party must make disclosure of a document if that document is 'directly relevant' to the proceedings or a matter in issue.[10]

[17] The amendment to r 46 has narrowed the scope of the obligation of disclosure and the train of enquiry test no longer requires. Instead, parties need only make disclosure of documents that are directly relevant to an issue in the proceedings.

[18] The principles relevant to determining whether a document is 'directly relevant' are set out by Collier J in CFMEU v BHP Coal Pty Ltd (No 2).[11] These principles are summarised by Knight IC in Huyghe v State of Queensland (Mackay Hospital and Health Service) as follows:[12]

(a) whether a document is directly relevant to an issue in the proceeding is a question of fact in the circumstances of the case;[13]

(b) 'directly' should not be understood to mean that which constitutes direct evidence, to the exclusion of circumstantial evidence.[14] Rather, 'directly relevant' means something which tends to prove or disprove the allegation in issue;[15] and

(c) a document will not be 'directly relevant' if, rather than tending to prove an issue in dispute, it merely tends to prove something that may be relevant to a disputed issue.[16]

[19] Having considered all of the submissions before me, I have determined to dismiss the application for further and better discovery. It seems to me that Dr Chen is making a request for information, or a request for the Respondent to create documents or affidavits which refute Dr Chen's claims. That is not the purpose of discovery. If Dr Chen believes witnesses or other evidence do not set out the correct factual scenario, he may address this during cross-examination and through his own evidence and submissions at the hearing.

[20] Further to this, Dr Chen appears to base his strong views about the current staffing level and needs of the hospital on information he has been given by colleagues or documents he has viewed.[17] This is evidence Dr Chen can lead at the hearing either through witnesses he calls, through cross-examination, or by tendering documents through witnesses. If Dr Chen has come across documents he believes are relevant and he intends to use to support his case, he must consider the disclosure requirements surrounding those documents.

[21] It appears clear that one of the main purposes Dr Chen seeks the information regarding availability of positions, is as it relates to the practicality of reinstatement in the event he is successful in his applications. It is my view that the Respondent will make its arguments about the practicality of reinstatement and Dr Chen will have the opportunity cross-examine witnesses with regard to their evidence. Dr Chen will also have the opportunity to lead the evidence he believes he has regarding the availability of positions. I do not find that the availability or otherwise of permanent FTE roles is a matter directly relevant to the unfair dismissal and general protections matters before me. If Dr Chen is successful and is reinstated to the casual roster, the availability of permanent positions may become an issue in his Public Service Appeal matter regarding conversion to permanent.

[22] As I noted at the mention, the Commission is required to take a number of considerations into account when considering if reinstatement is practical. It does not necessarily follow that simply because a Respondent says that reinstatement is not a practical outcome, that the Commission must accept that view. Where the Commission determines it to be the appropriate remedy, reinstatement may be ordered.

[23] I do not find the current employment details, or future employment intentions for 2023 regarding Dr Vo,[18] to be directly relevant to the matters in issue between the parties in the unfair dismissal and general protections matters which pertain to circumstances which occurred some years earlier.

[24] With regard to the request for 'confirmed upcoming funded permanent 0.3 to 0.6 FTE Interventional SMO positions, already widely-known to colleagues', Dr Chen says in his schedule that senior colleagues have disclosed this information to him.[19] Dr Chen is capable of leading this evidence himself by calling the relevant witnesses. Dr Chen does not need to 'discover' this information, rather he needs to present the evidence he has at the hearing of the matter. It appears that Dr Chen seeks to have his understanding confirmed by the Respondent and this is not a proper request for discovery.

[25] The matters set out at 4(c) of the application in existing proceedings appear to me to be a situation where Dr Chen appears to have knowledge of or be in possession of documents or information from witnesses that may call in to question the position of the Respondent on a range of matters. Further, it may be that Dr Chen simply does not believe what the Respondent says and, in that case, he needs to test that by way of an examination of evidence at the hearing. It is a matter for Dr Chen to raise these questions regarding the factual circumstances that existed at the time of the events in question at the hearing. Other aspects of 4(c) include requests surrounding Dr Vo's employment, which I have dealt with above; discussion about a prior affidavit dated 23 June 2022 which is not a request for discovery; and advice apparently provided to Dr Chen by his previous counsel which is also not a request for discovery. The final matter dealt with in 4(c) appears to be an argument in favour of Dr Chen's theory as to why his dismissal was unfair. Dr Chen states what he believes to be the factual circumstances regarding severe understaffing of the Department and the decision to reduce cardiologist numbers. Dr Chen will have the opportunity to put those matters forward at hearing.

[26] Paragraph 5 of Part 1 of the schedule also relates to Dr Vo's current and future employment and for the reasons given above, I do not find those matters directly relevant.

[27] The application in existing proceedings for further and better discovery is therefore dismissed.

[28] I understand that the Respondent is seeking costs with regard to the aspects of the application in existing proceedings not related to the discovery matter. That is, the request for joinder and the order for recusal. I understand that I initially suggested that these reasons would be delivered ex tempore and that I would hear the parties on costs at that hearing. However, given that I am writing these reasons on the final working day of the year, I determined to spare the parties the requirement to attend the Commission by releasing the outcome as a written decision.

[29] I will issue a Directions Order seeking written submissions with regard to costs of the application in existing proceedings.

[30] I am of the view that the matter is now ready to be listed for hearing. However, as I indicated at the mention, I will not list the matter until I have some certainty that Dr Chen is ready to proceed to hearing. I understand that Dr Chen retains a right to file whatever applications he believes are necessary for the conduct of the matter, however I note that at some point, it is necessary to draw a line under preparations for hearing and to move forward to hear the matter.

[31] As such, I await Dr Chen's advice as to whether he is ready to proceed to hearing. I look forward to listing the matter for hearing as soon as is practicable.

1. The application in existing proceedings as it pertains to the request for further and better discovery is dismissed.

1. I will hear the parties as to costs of the aspects of the application in existing proceedings relating to a request for joinder of PSA/2022/449 to the current matters and the request for an order for recusal.

[11] [2011] FCA 1396; (2011) 212 IR 313, [34]-[37].

[13] [2011] FCA 1396; (2011) 212 IR 313, [34].

[14] Southern Equities Corporation Ltd (In Liquidation) v Arthur Andersen & Co (No 5) [2001] SASC 335, [12].

[15] Robson v Reb Engineering Pty Ltd [1997] 2 Qd R 102, 105.

[16] Quenchy Crusta Sales Pty Ltd v Logi-Tech Pty Ltd (2002) 223 LSJS 266, [11].

[17] For example, Affidavit of Dr Victor Chen sworn 29 November 2022, VC-56 'Collegial SMS 3 November 2022'.

[18] Application in existing proceedings filed 14 November 2022, schedule, paragraph 4(a).