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.