Dr Lim v Secretary, Ministry of Health in respect of Mid North Coast Local Health District

Summons

1. The Respondent, by its summons, is seeking from the Applicant the production of: 1. All documents evidencing a contractual relationship between you and Skilled Medical Pty Ltd and any other medical locum agency which you had a relationship with from January 2015 to December 2020. 2. All documents evidencing a relationship between you and any other health service provider or supplier of medical services, including but not limited to, private medical practices, public and private hospitals and or Local Health Districts, from January 2015 to December 2020. 3. Any documents and or records evidencing your income and earning in the 12 months prior to December 2020, including but not limited to payments received through all forms of employment, self-employment, agency payments, or distributions as a beneficiary of a trust or dividends as a shareholder or unit holder.
2. It appears that having been made aware of this summons to produce, the Applicant filed a notice of motion to set it aside. There appear to have been no discussions between the parties as to the scope or the wording of the summons.
3. In her motion, the Applicant resists production on the grounds of lack of legitimate forensic purpose, relevance, lack of particularity, oppression and argues that the summons is a substitute for discovery.
4. This notice of motion is being determined on the papers with the consent of the parties and agreement by the Commission. The parties filed submissions in support of their respective positions. I have read those submissions.

Principles

1. The principles surrounding subpoenas and in the case of the Commission, summons to produce, are well established. Summons or notice to produce under the Industrial Relations Act 1996 (NSW) are equivalent to subpoena. When considering an application to set aside summons to produce, apart from its own precedents, the Commission is justified to draw upon the principles established by superior courts in relation to subpoenas.
2. In Inspector Estriech v Leon [2012] NSWIRComm 84 (Estreich), Boland J considered the principles that apply to the application to set aside summonses issued by the Industrial Registrar. This decision is a comprehensive review of the relevant case law (both criminal and civil cases) by the then President of the Industrial Court of NSW. As far as the Applicant in her submissions wishes to distinguish criminal case law test for setting aside the subpoenas in this jurisdiction, I am not taken to any authority which states that Estreich should not be followed.
3. In her submissions, the Applicant refers to the recent Court of Appeal decision in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 (SDPIE). She argues for the proposition that obiter dictum of the individual judges of the appellate court should be accepted as a restatement of the principles around the setting aside of a subpoena in a civil matter.
4. With respect, I can't agree. Perhaps we will receive further guidance from an appellate court at a future time but presently, I will consider settled principles which were again restated in the very judgment the Applicant refers the Commission to.

Legitimate Forensic Purpose

1. In Attorney-General (NSW) v Chidgey [2008] NSWCCA 65 (Chidgey), when considering legitimate forensic purpose test, Beazley JA rejected the argument that mere relevance might be sufficient.
2. In Rinehart v Rinehart [2018] NSWSC 1102, Ward CJ in Eq stated at [43], quoting the Court of Appeal in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307: "…it must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely the documentation will."
3. In SDPIE, Brereton JA said, at [89]: "I agree with Bell P, for the reasons given by his Honour, that an issuing party is not required to show that it is "likely" (or "on the cards") that the documents sought will materially assist its case, as distinct from that it is "likely" (or "on the cards") that they will add, in some way or another, to the relevant evidence in the case, and that the essential question is whether the documents called for are apparently relevant, or capable of providing a legitimate basis for cross-examination, in which case there is a legitimate forensic purpose for the issue of the subpoena."

Relevance

1. Bell, P in SDPIE states, at [71]: "the absence of any apparent relevance (in the broad sense of that term) of the documents sought to be subpoenaed to the issues in the case, may warrant a conclusion of a lack of legitimate forensic purpose and be a sufficient ground to set aside a subpoena or a part of a subpoena: see Portal Software at [22]. That is because, if the documents subpoenaed do not meet the relatively low threshold of apparent relevance, it may readily be inferred that the documents are being sought for some purpose foreign to the litigation. That may not have been the issuing party's motivation, but the lack of apparent relevance test is a convenient means of delimiting that which is legitimate."

Oppressive and lack of particularity

1. A summons is oppressive if it is "too wide" or "uncertain". Documents may not be identified with sufficient particularity if the summons would require the recipient to form a judgment as to what is relevant to the issues in proceedings.

Substitute for discovery

1. A summons to produce may be set aside by the Commission as an abuse of process if it is found that it is used for the reason of discovery.

Summons before the Commission - Categories of documents

Paragraph 1

1. Turning to the categories of the documents requested by the summons, paragraph [1] requires "all documents evidencing a contractual relationship…". The Applicant's argues that the word "evidencing" may indicate that a call for documents is oppressive, citing Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd [2019] NSWSC 410.
2. I agree that the word "evidencing" presents some difficulty, however in this particular case, the person to whom the summons is addressed is the Applicant and not a stranger to the proceedings. The Applicant is a barrister and should be able to make the factual determination required.
3. Further, although the request for documents spans 5 years, the category is sufficiently defined. It is tolerably clear what documents are required to be produced and there is a connection to the agency through which the Applicant apparently acquired her locum work. I find that this paragraph is relevant and is specified with sufficient particularity.
4. I find that the details requested by paragraph [1] go to the issue in dispute, namely, the Applicant's relationship with the Respondent. It is possible to see that the material may assist the Respondent in determining the jurisdictional issue. Therefore paragraph [1] of the summons does not lack legitimate forensic purpose.
5. I do not find that, apart from the word "evidencing" which I addressed above, paragraph [1] of the summons is oppressive in the sense discussed, for instance, in Waind v Hill [1978] NSWLR 376.

Paragraph 2

1. Paragraph [2] requires "all documents evidencing a relationship between you and any other health service provider or supplier of medical services…". Considering the issues in this case, it is not clear to me what would be the relevance of those documents. The Respondent's submissions did not, with respect, clarify the position. The Applicant was either a casual employee of the Respondent or she was not. If she is found to be an employee of the Respondent, she either falls into the category of exempt employees or she does not.
2. In this respect I agree with the Applicant that the documents "evidencing" her possible other employment appear to be irrelevant. I also bear in mind the apparent difficulty the Applicant will be experiencing in trying to determine which one of her contacts in the medical profession falls into the category of a 'health provider". On balance, and taking into consideration the above tests, I find that paragraph [2] of the summons to produce should be set aside.

Paragraph 3

1. Paragraph [3] goes to the Applicant's total income in the 12 months prior to the critical date. The Respondent submits that that evidence is required in order to establish the jurisdictional issue which is, I note, a live issue in this matter.
2. Although I share the Applicant's doubts as to proper interpretation of the word "remuneration" used in Regulation 5 of the Industrial Relations (General) Regulations 2020 (NSW), the broad meaning of relevance and legitimate forensic purpose, confirmed by SDPIE, leads me to conclude that this paragraph should not be set aside. This paragraph does not lack legitimate forensic purpose.
3. The documents required in paragraph [3] address 12 months only and although it may be inconvenient for the Applicant to go through her personal financial records, I find that the category of documents is specified with the sufficient particularity. Again, I do not find that, apart from the word "evidencing" which I addressed above, paragraph [3] of the summons is oppressive.
4. I make the following orders: 1. Paragraph [2] of the summons to produce addressed to the Applicant and filed by the Respondent 10 September 2021 is set aside. 2. Applicant is to produce documents described in paragraphs [1] and [3] of the summons to produce addressed to the Applicant and filed by the Respondent 10 September 2021. 3. The matter is re-listed before the Industrial Registrar for return of summons on 1 December 2021 at 9:15am. Irina Hoskinson Industrial Registrar (Acting) 4 November 2021

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: 05 November 2021