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[2008] NSWIRComm 70
Industrial Relations Commission (NSW)
2008-04-02
Boland J
Original judgment source is linked above.
CITATION: Davies v Kyogle Council [2008] NSWIRComm 70
APPLICANT: Kenneth Henry Davies PARTIES: RESPONDENT: Kyogle Council
CATCHWORDS: Reinstatement of injured worker - Claim for reinstatement under s 242 of Workers' Compensation Act 1987 - Interlocutory proceedings - Notice of motion by respondent to set aside in part summonses for production - Objection by applicant to respondent being represented in proceedings by an industrial organisation of employers - Apprehended bias - Conflict of interest - Whether valid resolution of respondent appointing industrial organisation to act for it - Whether breach of delegated authority by Mayor of respondent in arranging for officer of industrial organisation to attend Council meetings - Orders made setting aside summonses in part .
Industrial Relations Act 1996 Industrial Relations Commission Rules 1996 r 94(1), r 94(2) LEGISLATION CITED: Local Government Act 1993 ss 335 and 355 Occupational Health and Safety Act 2000 Workers' Compensation Act 1987 ss 10, 241(1), 242, 243
Arhill Pty Ltd and Others v General Terminal Company Pty Ltd and Others (1990) 23 NSWLR 545 Attorney-General (NSW) v Stuart (1994) 75 A Crim R 8 Gough & Gilmour Holdings Pty Ltd and ors v Caterpillar of Australia Ltd (No.10) [2002] NSWIRComm 22 Haddadi v Solectron Australia Pty Limited [2003] NSWIRComm 472 CASES CITED: Johnson v Johnson (2000) 201 CLR 488 National Employers' Mutual General Association Ltd. v Waind and Hill [1978] 1 NSWLR 372 Surfing Hardware International Holdings v McCausland (No 3) (2007) 161 IR 445 The Commissioner for Railways v Small [1938] SR (NSW) 564 WorkCover Authority of New South Wales (Inspector Dubois) v Concrete Constructions Group Limited [2000] NSWIRComm 65 WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (2000) 50 NSWLR 333
APPLICANT: Self-represented
LEGAL REPRESENTATIVES: RESPONDENT: Mr A T Britt of Counsel Mr L Smith Shires Assoication of NSW
Application by Kenneth Henry Davies for reinstatement of an injured employee pursuant to s 242 of the Workers' Compensation Act 1987
1 Kenneth Henry Davies was employed by Kyogle Council as General Manager. On 22 December 2005, the Council purportedly dismissed Mr Davies from his employment. Mr Davies claimed that at the time of his dismissal he was on sick leave suffering from adjustment disorder with mixed anxiety/depression and had lodged a workers' compensation claim with the Council. Mr Davies has made an application to be reinstated pursuant to s 242 of the Workers' Compensation Act 1987. 2 Section 241(1) of the Workers' Compensation Act provides that if an injured worker is dismissed because he or she is not fit for employment as a result of the injury received, the worker may apply to the employer for reinstatement to employment of a kind specified in the application. Section 243 of the Act provides that the Industrial Relations Commission may, subject to the provisions of the section, order the employer to reinstate the injured worker. Mr Davies' application is listed for hearing on 6 to 9 May 2008 in Ballina. Objection to Shires Association
3 The Commission had indicated that prior to the hearing of the substantive application it would hear the applicant's application objecting to the representation of the respondent by the Shires Association of NSW in the proceedings. That is no longer possible and such application will be dealt with on 6 May 2008 at Ballina prior to the substantive proceedings. Having said that, the parties will need to take into account what has been determined in this interlocutory decision and its effect on any application by the applicant to disqualify the Shires Association. 4 It may be noted that the Shires Association is an organisation registered under the Industrial Relations Act 1996. It may also be noted that the Shires Association and the Local Government Association, another registered industrial organisation, are represented in industrial and other matters by a joint secretariat. The two associations are commonly referred to as the "Local Government and Shires Associations" ('LGSA'). The Association with which I am concerned in these proceedings, despite references by the applicant to the LGSA, is the Shires Association ('the Association'), that being the organisation of which the respondent is a member. 5 The application objecting to the representation by the Association was based on three grounds, namely that: (1) David Wilson, the Director Workplace Solutions Division of the LGSA, has "an obvious conflict of interest, and an apprehended bias"; (2) there is no valid resolution of the respondent appointing the LGSA to act on behalf of the respondent in this matter; and (3) the Mayor of the respondent breached his delegated authority in arranging for Mr Gibson to attend meetings of the Council on 11 November 2005, 12 December 2005 and 22 December 2005. Summonses for production 6 In the meantime, Mr Davies caused to be issued two summonses for production; one on the Secretary-General of the LGSA and the other on Councillor Ernie Bennett, Mayor, Kyogle Council. The applicant conceded that the summonses were served on the two individuals in their organisational capacity, so I will take it that for the purpose of these proceedings the summonses were directed to the organisations, that is the Association and Kyogle Council. The applicant's purpose in having the summonses issued was to obtain documents relevant to the prosecution of his substantive claim and, as well, his application objecting to the representation of the respondent by the Association. The respondent, Kyogle Council, by notice of motion has sought orders setting aside, in part, the summonses for production on the grounds that the parts are oppressive, irrelevant and/or constitute a fishing expedition. The respondent relied on affidavits of Mr Lee Smith, a senior industrial officer employed by the LGSA, in support of the motions. This interlocutory decision deals with the respondent's motion to set aside parts of the summonses. 7 Before going to the summonses, I note that the Association may represent the "interests of members in matters before industrial tribunals". There is no doubt these proceedings are matters before an industrial tribunal. 8 The summons served on the Association seeks the production of the following, which are objected to by the respondent: 1. Copy of Contract of Employment of David Gibson, Director Workplace Solutions.
9 The summons served on the respondent seeks the production of the following, which are objected to by the respondent: 2. Copies of Councillors Bennett's telephone records covering the period 1 October 2005 to 22 December 2005. 3. "Copy of all information requested in my emails of 5 January 2006 and 10 March 2006 regarding access to General Manager's safe". 4. "Copy of all information requested in my emails of 5 January 2006 and 10 March 2006 regarding the change of security codes Administration Building". 5. Section 430 Investigation - Copies of all "Directions" issued to Kyogle Council by the Departmental Representatives during the course of the Section 430 Investigation. 6. Copy of any report/letter/response from ICAC in relation to any matter arising from the Section 430 investigation, including the information requested in the following email: ......Original Message...... From: Lyn Davies To: Arthur Piggott Sent: Tuesday, October 03, 2006 8:29AM Subject: Section 430 report; findings at 401 and 402 Arthur Attached are copies of letters to the Mayor and you dated 3 March 2006. The letter finishes with the following requests:
"Could you please:
Please advise if you do not intend to provide this information.
Ken Davies ...Original Message... From: Lyn Davies To: Julie Clark Sent: Saturday, February 25, 2006 8:08AM Subject: Advertisements for meetings, October - February Julie Would you mind confirming which of the following meetings shown on the Council's web site, as being held between October 2005 and February 2006 were advertised: 17/10/05 - Ordinary 20/10/05 - Emergency Extraordinary 25/10/05 - Extraordinary 25/10/05 - Emergency Extraordinary 11/11/05 - Extraordinary (1.00PM) 11/11/05 - Extraordinary (2.30PM) 21/11/05 - Ordinary 12/12/05 - Ordinary 22/12/05 - Extraordinary 02/02/06 - Emergency Extraordinary 20/02/06 - Ordinary. Would you also mind sending me a copy of each advertisement. Thanks
10 The Commission's power to summons witnesses and compel the production of documents is set out in s 165 of the Act. The Registrar must issue a summons for production unless the Tribunal otherwise orders (see Rule 91(1) of the Industrial Relations Commission Rules 1996. The Court may, under r 94(1), on application from the person named in the summons, set aside the summons wholly or in part. The application to set aside a summons must be made by notice of motion, or with leave of the Tribunal, orally in the course of the proceedings: r 94(2). 11 As the party seeking to set aside the summons in whole or in part, the respondent bears the onus of establishing the grounds to set aside a summons in whole or in part: see The Commissioner for Railways v Small [1938] SR (NSW) 564 at 574; National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 at 381; WorkCover Authority of New South Wales (Inspector Keelty) v The Crown in Right of the State of New South Wales (Police Service of New South Wales) (2000) 50 NSWLR 333 at [30]. 12 The summonses for production may be set aside on the ground that it would compel the production of documents which can have no relevance to the litigation: see National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 at 382; WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (2000) (2000) 50 NSWLR 333 at [32]; Haddadi v Solectron Australia Pty Limited [2003] NSWIRComm 472 and Gough & Gilmour Holdings Pty Ltd and ors v Caterpillar of Australia Ltd (No.10) [2002] NSWIRComm 22 at [8 and 9]). 13 The ultimate test is whether the documents are necessary for disposing fairly of the proceedings: see Arhill Pty Ltd and Others v General Terminal Company Pty Ltd and Others (1990) 23 NSWLR 545 at 556). If a document is not relevant it cannot be necessary for disposing of the cause of action. In Attorney General v Stuart (1994) 75 A Crim R 8 at 21, Hunt CJ at CL held: The concept of legitimate forensic purpose is not confined to claims of public interest immunity. It arises whenever a party seeks access to documents for which he has issued a subpoena; where objection is taken, a party who is unable to show that it is at least "on the cards" that such documents will assist his case is not entitled to have access to such documents simply to see whether they may do so: cf R v Saleam (16 NSWLR at pp17-18). He is not entitled to conduct a fishing expedition. He is not entitled to conduct a fishing expedition. The need to show a legitimate forensic purpose arises even if the claim of public interest immunity fails. It is therefore a prerequisite before the balance required for that claim can be struck. 14 In WorkCover Authority of New South Wales (Inspector Keelty) v The Crown in the Right of the State of New South Wales (Police Service of New South Wales), Hungerford J observed at [32] that in looking at whether the purpose of a summons to produce was a 'fishing expedition' or there was some legitimate forensic purpose, that it came down to "a balancing exercise involving the nature of the documents sought in light of the apparent issues." Factual background 15 Before dealing with the objections to the summonses, it is appropriate that I provide an outline of the circumstances that led to Mr Davies' purported dismissal. In October 2005, Mr Davies commenced a period of sick leave suffering from adjustment disorder with mixed anxiety/depression. Mr Davies subsequently claimed workers' compensation for his illness, the claim being lodged on 8 December 2005. On or about 17 November 2005, Mr Davies alleged that the security codes on the Council's administration building were changed, thus preventing him from accessing his place of work. Mr Davies alleged constructive dismissal occurred at this point. On 12 December 2005, StateCover wrote to Mr Davies in response to his workers' compensation claim requesting a medical report on his condition by an independent medical specialist. To that end, StateCover arranged for an examination of the applicant by a psychiatrist, which took place on 19 December 2005. On 22 December 2005 the applicant was advised by letter faxed to his home that his employment with the respondent had been terminated with immediate effect. At the time, the applicant was absent from work on workers' compensation. 16 The letter purporting to terminate the applicant's employment listed eight reasons as to why the employment was terminated. The reasons included failure to properly advise the Council regarding certain obligations under the Local Government Act 1993, failure to properly manage Council's responsibilities under the Occupational Health and Safety Act 2000, failure to take adequate care of a laptop computer, the property of the Council, failure to properly perform his duties and irretrievable breakdown of the relationship between the applicant and Mr Davies. 17 On 29 April 2007 the applicant advised the mayor of the respondent that he proposed to return to work on 30 April 2007. The applicant alleged that he commenced work on 30 April 2007. On 1 May 2007 the respondent communicated with the applicant and advised him that he was no longer employed by the Council and that his employment had been terminated on 22 December 2005. Apprehended bias 18 As I have noted, it was the respondent's contention that the material sought to be produced by the applicant was irrelevant, both in respect of the issues for determination in the substantive proceedings and the conflict of interest/apprehended bias issue. 19 Let me deal firstly with the apprehended bias issue. The notion of apprehended bias has no relevance to these proceedings. The concept is a legal one related to the conduct of judicial officers: whether a fair-minded lay-person might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to make. See Johnson v Johnson (2000) 201 CLR 488 and WorkCover Authority of New South Wales (Inspector Dubois) v Concrete Constructions Group Limited [2000] NSWIRComm 65. 20 That Mr Gibson has by his words or actions demonstrated a particular tendency or inclination to act in a manner inconsistent with the interests of the applicant is wholly unsurprising: Mr Gibson is an employee of an industrial organisation acting for its member, the Kyogle Council, in an industrial matter involving a claim by the applicant against the Council. Mr Gibson has no duty or obligation of a fiduciary nature whatsoever to Mr Davies. Mr Gibson's duty is to represent his member Council, which necessarily means acting against the interests of the applicant. 21 Given that apprehension of bias is not a relevant consideration, documents sought in a notice to produce that Mr Davies claims will assist him in prosecuting his contention that Mr Gibson is biased, are clearly not relevant. Conflict of interest 22 Next is the conflict of interest claim by Mr Davies. The essential alleged bases of the claim are as follows: · Mr Gibson is Director Workplace Solutions Division of LGSA and at the same time a Director of StateCover Mutual Limited, the respondent's workers' compensation insurer. StateCover resisted the applicant's workers' compensation claim. Mr Gibson received director's fees from StateCover. StateCover did not comply with the relevant provisions of the workers' compensation legislation in respect of the applicant including with respect to the preparation of an injury management plan and a preparation for return to work plan. · Mr Gibson gave advice to the Council in relation to the applicant's purported dismissal and continues to give such advice. · Mr Gibson advised the respondent in relation to the appointment of a new general manager to replace the applicant. 23 The law relating to conflict of interest in connection with legal practitioners (see the recent discussion of the law in Surfing Hardware International Holdings v McCausland (No 3) (2007) 161 IR 445) has no application here, even if it were correct that the Commission, as opposed to the Court, could exercise any powers if it were to find such a conflict (for example, stay the proceedings for abuse of process). Neither the Shires Association nor Mr Gibson are legal practitioners. 24 Conflict of interest may arise between the exercise by a public official of a public duty and the individual's private interests. But we are not concerned here with public officials. 25 Nevertheless, it is open to the Commission in its broad discretion to consider whether there exists such a conflict of interest that an applicant in prosecuting a case for reinstatement has been prejudiced to such a degree that some remedial action needs to be taken to overcome the prejudice. 26 There is not the slightest indication in any of the material filed in the proceedings so far that Mr Gibson's directorship of StateCover represents a conflict of interest impacting adversely on the applicant. Of course, it would be a matter of some relevance if Mr Gibson had improperly used his influence as a director of StateCover to affect, in some way, Mr Davies' workers' compensation claim. Paragraph 16 of the summons served on the LGSA seeks: Details in relation to all communications between Mr David Gibson and StateCover Mutual Limited in the period 1 October 2005 to 31 December 2006. 27 As drafted, the summons at paragraph 16 is too wide. It is oppressive. I propose to order that the Association shall produce: Any document as defined by the Evidence Act 1995 that is a communication between David Gibson (in his capacity as a director of StateCover Mutual Limited) and StateCover Mutual Limited in the period 1 October 2005 to 31 December 2006 that refers to Kenneth Henry Davies. 28 None of the documents sought in the summons served on the respondent have any relevance to the conflict of interest issue as it allegedly involves StateCover Mutual Limited. 29 Next it is said by the applicant that Mr Gibson has a conflict of interest because of his dealings with the Council in respect of the termination of Mr Davies' employment. This falls into a similar category as the apprehended bias claim. Mr Gibson is not and never has been an agent for or representative of Mr Davies. He is an officer of an industrial organisation of employers representing local government employers in the State - an organisation that has as one of its objects to "represent the interests of members in matters before industrial tribunals." 30 That Mr Gibson may have had dealings in the past with Mr Davies in his capacity as general manager of the respondent, does not give rise to a conflict of interest. The dealings with Mr Davies were in Mr Davies' capacity as a representative of Kyogle Council, a member of the Association. The dealings were in fact and in law dealings between the Association and the Council.
31 Mr Gibson, or any officer of the Association, was entitled to provide advice and assistance to the Kyogle Council in relation to any decision to terminate the employment of its general manager. In that respect, no conflict of interest arises. Further, no conflict of interest arises out of any advice provided by Mr Gibson as an officer of the Association in connection with the appointment of a replacement general manager. 32 In light of these observations, nothing sought in the paragraphs of either summons that was objected to by the respondent is relevant to any conflict of interest issue concerning Mr Gibson's dealings with Kyogle Council. For example, Mr Davies sought the production of standard contracts for Executive staff of councils produced by the Association. Such contracts are provided as a service to member councils, not to individual staff members; the Association has no charter that would allow it to provide industrial advice and assistance to employees of its members. Whether valid resolution by Council 33 Mr Davies claimed that the information sought in his summonses was relevant to whether there was a valid resolution of the respondent appointing the Association to act on behalf of the respondent in this matter. 34 The evidence demonstrates that the respondent is a member of the Shires Association. The Association is a registered industrial organisation under the Act. The Association may represent the "interests of members in matters before industrial tribunals". It does not seem to me there is any need for the respondent to pass a resolution appointing the Association as its representative, given its membership of the Association. Further, I note from the material filed that historically no such resolutions have been required to be passed, including in the period when the applicant was General Manager of the respondent. In any event, the evidence demonstrates that the respondent, through its general manager, Mr Piggott, instructed the Shires Association to act on its behalf (the general manager of a Council is authorised to give such instructions without the need for a specific resolution of the Council see ss 335 and 355 of the Local Government Act). Finally, I note from the material filed in the proceedings that the Association has, in fact, been appointed by the respondent by way of resolution to represent the Council in legal proceedings involving Mr Davies. Whether Mayor breached authority 35 The third objection taken to the Association's right to represent the Council in these proceedings was that the mayor of the respondent breached his delegated authority in arranging for Mr Gibson to attend meetings of the Council on 11 November 2005, 12 December 2005 and 22 December 2005. It appears that the applicant is seeking information via the summons on the Council to support this contention. 36 The applicant has not explained the basis upon which it is contended that the mayor breached his delegated authority and to that extent the summons may be regarded as a fishing expedition. In any event, even if there were a breach I do not consider that precludes the Association from representing the Council in these proceedings. Even if it were to do so it could very quickly be remedied, if that is not already the case by resolutions passed by Council on 21 August 2006 and 20 November 2006. In passing, I note that by virtue of s 10 of the Local Government Act, everyone is entitled to attend a meeting of the council and those of its committees of which all the members are councillors unless a person is expelled or the meeting is a closed meeting. 37 I note further that the respondent has not objected to the production of copies of confidential minutes of all meetings of Council held in the period 1 October 2005 to 22 December 2005. Nothing else sought in the summons bears any relevance to whether the mayor exceeded his authority in arranging for Mr Gibson to attend meetings of the Council on 11 November 2005, 12 December 2005 and 22 December 2005. Reinstatement claim 38 I turn next to the question of whether any of the objected material in the summonses is required to be produced to the applicant on the basis that it is relevant to the applicant's substantive claim of reinstatement. In light of the provisions of Part 8 of the Workers' Compensation Act, the matters that would appear to be of relevance in respect of Mr Davies' substantive claim are: (1) whether the applicant was an employee employed by an employer, namely the respondent (this appears to be conceded by the respondent); (2) whether the applicant was an injured worker; (3) whether the applicant's employment was terminated by the respondent; (4) what were the reasons for the termination of the applicant's employment; (5) whether the applicant applied for reinstatement; (6) whether the applicant provided a certificate from a medical practitioner to the effect that the applicant was fit for employment of the kind for which the applicant applied for reinstatement; and (7) whether the applicant applied for reinstatement to a more advantageous position. An additional issue that it appears may be raised by the respondent in the substantive proceedings is whether the applicant is estopped from making the application. 39 In respect of the summons served on the Shires Association, the objected material appears to be directed to Mr Davies' claim regarding bias and conflict of interest. Indeed, that is how Mr Davies' explained his position in his written submissions filed in the proceedings. I am unable to discern any of the information being sought as relevant to the issues to be determined in the substantive proceedings. 40 In respect of the summons served on the respondent, I am unable to see any relevant connection between the objected material and the issues for determination in the substantive proceedings. Orders and directions
41 The Commission makes the following orders: (1) That the summons for production issued at the applicant's request on 27 February 2008 and served on Kyogle Council is set aside in part by deleting paragraphs 2, 3, 4, 5, 6, 7 and 8. (2) That the summons for production issued at the applicant's request on 27 February 2008 and served on the Shires Association of NSW is set aside in part by deleting paragraphs 1, 6, 7, 8, 9, 11, 12, 13, 14, 15 and 16. (3) That the summons for production served on the Shires Association is amended to insert a new paragraph 16A in the following terms: 16A Any document as defined by the Evidence Act 1995 that is a communication between David Gibson (in his capacity as a director of StateCover Mutual Limited) and StateCover Mutual Limited in the period 1 October 2005 to 31 December 2006 that refers to Kenneth Henry Davies. 42 In the event any document is to be produced pursuant to paragraph 16A of the summons served on the Association, the Association is directed to deliver it to the Industrial Registry, Level 1, 47 Bridge Street, Sydney NSW 2000 on or before 4.00 pm on Wednesday 16 April 2008.
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.
Davies
Kyogle Council
(1990) 23 NSWLR 545
(2000) 201 CLR 488
(2007) 161 IR 445
(2000) 50 NSWLR 333