Collins v Dr Horvath Central Sydney Area Health Service and ors

APPLICANT Mr J Pearce of counsel Solicitor: Paul Murphy Paul Murphy and Associates

FIRST RESPONDENT LEGAL REPRESENTATIVES: Solicitor: Ms D Banks Gilbert and Tobin

SECOND AND THIRD RESPONDENTS Mr R Kenzie QC with Mr I Taylor of counsel I V Knight, Crown Solicitor

JUDGMENT: - 6 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Tuesday 8 June 2004 Matter No IRC 7382 of 2003 JENNIFER COLLINS v DR D HORVATH CENTRAL SYDNEY AREA HEALTH SERVICE AND ORS (HORVATH HEALTH ADMINISTRATION CORPORATION DIRECTOR GENERAL NEW SOUTH WALES DEPARTMENT OF HEALTH) Application under s 106 of the Industrial Relations Act 1996 INTERLOCUTORY JUDGMENT RE PROCEDURAL MATTERS NSWIRComm 153

1 The applicant, Jennifer Collins, has commenced proceedings against the first, second and third respondents, namely Dr D Horvath, Chief Executive Officer, Central Sydney Area Health Service; The Health Administration Corporation; and The Director General, New South Wales Department of Health; seeking a declaration pursuant to s 154 of the Industrial Relations Act 1996 ("the Act"). The declaration is directed to a decision made to terminate a contract of employment whereby the applicant was employed as Director of Clinical Information, Central Sydney Area Health. Consequential orders were sought and, in the alternative, a declaration and orders with respect to the contract of employment to the effect that it was an unfair contract pursuant to s 106 of the Act. Certain other alternative and consequential orders were also sought.

2 Although the proceedings were commenced under s 154 of the Act, they relied either wholly or in part upon this court's jurisdiction and power under s 106 of the Act. For this reason the court undertook a conciliation which is a mandatory process in connection with proceedings brought under s 106.

3 However, although it was contemplated by the parties that the respondents might file a reply as required by the rules of this court in connection with proceedings brought under s 106 and, presumably, that the applicant might file a response, also as required by the rules, no such documents were in fact filed before the conciliation was conducted. Whether and to what extent it is either necessary or desirable for such documents to be filed in proceedings for a declaration pursuant to s 154 of the Act which are referable in turn to the jurisdiction and power of the court under s 106 has not been debated before the court. What, however, the court has been asked to adjudicate upon is two outstanding issues between the parties which were raised in connection with the conciliation process. These involved firstly controversy as to whether it was appropriate or necessary for the respondents to produce documents in accordance with three notices to produce served by the applicant prior to the conciliation taking place. Secondly whether and to what extent the applicant should be required to furnish particulars of certain matters contained within the summons before the respondents were required to file a reply.

4 To some extent these matters have now been overtaken by the conciliation process which has occurred. Nevertheless the parties have sought that the court issue orders in connection with these matters to facilitate the case management process. I shall deal with each matter in turn. PRODUCTION OF DOCUMENTS

5 The three notices to produce served by the applicant on the respondents sought production and inspection of a number of documents which were not, in general terms, specified but which might conveniently be described as referring to categories. For example these included documentation which were relevantly before the first respondent at the time of making the decision to terminate the applicant's employment, the personnel file of the applicant, and documents relating to the applicant's employment by the first respondent and the termination of that employment.

6 The written submissions of the parties were made against the background of the rules of this court relating to s 106 proceedings and in particular rule 18A. As the conciliation has been completed, different considerations will, in my opinion, apply and it is not necessary that I examine the provisions of this rule in any detail. In any event, the provisions of the rule have been examined and commented upon extensively by Schmidt J in this court in Fish and Anor v Solution 6 Holdings Limited and Ors [2002] NSWIRComm 93 and Marks v Jones Lang LaSalle Australia Limited and Anor [2002] NSWIRComm 175.

7 The respondents asserted that the documents sought to be produced by reference to categories were more appropriate for production during the discovery process, that discovery was not appropriate prior to the conciliation being conducted, and that accordingly the respondents should not be required to produce the documents. There were detailed submissions and counter-submissions concerning the provisions of the Act and the rules of this court which related to the production of documents with which it is not necessary for me to deal. I observe that prima facie the documents are more descriptive by way of category than by way of specification so that there must be some sympathy with the position of the respondents concerning their production under rule 161 of the court rules. However, whether the documents are susceptible to production by way of a notice to produce under rule 161, or are susceptible to production by way of a summons to produce documents, or are susceptible to discovery and ultimate inspection by way of an order for discovery, it seems clear, at least on a prima facie basis, that the documents will eventually find their way into the hands of the applicant. Certainly in terms of discovery the documents would, even on my preliminary review of the factual material contained within the application for order, arguably be relevant to a fact in issue under rule 160(d) because they could or do contain material which could rationally affect the assessment of the probability of the existence of a fact in issue.

8 In these circumstances it seems preferable to leave the matter in the first instance for sensible discussion between the legal practitioners representing the parties as to which of these processes will be utilised for the purpose of allowing all documentation having (to borrow a shorthand expression) "apparent relevance" to an issue in the proceedings, to be made available so that the proceedings can be processed in the most cost effective and expeditious manner. If there are any difficulties with what I hope is a pragmatic observation, then these can be addressed through a further directions hearing or by a notice of motion during the case management process, with respect to which I intend granting liberty to apply. PARTICULARS

9 In order to deal with the controversy between the parties with respect to particulars I shall refer in some detail to at least one of the particulars sought. The application for declaration filed by the applicant contained within paragraph 14(b) an allegation: "That procedures that were required by law to be observed in connection with the making of the decision to terminate the contract were not observed". The Crown Solicitor, then acting for all of the respondents, asked the applicant to "…identify each of the rules of procedures that were required by law to be observed that are alleged not to have been observed". The applicant responded that "these are not proper requests for particulars. Paragraph 14 sets out contentions of law and fact which the applicant will argue in due course".

10 In written submissions the respondents argued that they required these particulars in order to file a reply as stipulated in the court rules, and that they were unable to do so without these particulars being furnished. They submitted that, consistent with the decision of Schmidt J in Fish v Solution 6 Holdings, previously referred to, they were entitled to a summary of the matters of fact and law that are relied upon in respect of the matters pleaded in paragraph 14 of the application.

11 To some extent the urgency with respect to a reply document has been superseded by the conciliation which I have conducted. However, in any event, it is clear that the respondents would be unable to file any detailed reply dealing with the allegation contained in paragraph 14(b) of the application for order without being informed of the procedures which were allegedly not observed. In these circumstances the applicant could not quarrel with any reply document which merely put in issue paragraph 14(b) on the basis that there had been a failure to identify the procedures concerned. This may well be the most pragmatic way forward at this stage because ultimately common sense dictates that the applicant will need to identify the procedures referred to in paragraph 14(b). It may be that such identification will not be possible until after discovery has been effected and the applicant and her legal practitioners are made aware of the exact processes which were involved in the making of the decision to terminate the applicant's contract of employment. In keeping with the usual approach to particulars of this kind it would seem that the applicant must disclose any procedures relied upon as not having been observed after discovery and at the time that her affidavit evidence in chief is filed. It is at that stage that, ultimately, particulars of this kind should be furnished. Particulars numbered 7 to 11 are essentially of the same kind as particular 6 discussed in detail above. I would take the same approach to each of them in terms of the assessment which I have made. That is, that the respondents would be entitled to traverse the allegations made in the application for order in a reply document in a general way and to make reference to the failure to provide particulars for the purpose of that reply document. This is because these are, in my opinion, particulars which will require to be furnished at some stage no later than the time when the applicant has filed her affidavit material in chief.

12 The proceedings are stood over on the basis previously outlined. I grant liberty to apply with respect to any matter which should arise whilst I continue to deal with the proceedings by way of case management. I shall in all the circumstances reserve costs with respect to this interlocutory matter.

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.