Fletcher v Metropolitan Fire and Emergency Services Board

REASONS FOR JUDGMENT 1 The applicant, Geoffrey Fletcher, applies to the Court for orders requiring the respondent, the Metropolitan Fire and Emergency Services Board (Board), to produce for inspection the following documents as listed in the Affidavit of Christopher Wiseman sworn 30 July 2012: Document identified as number 70, being a statement of Assistant Chief Fire Officer, Gregory Bawden, who is employed by the Board and which is a statement given by him to an investigator appointed by the Board's external WorkCover agent with respect to a WorkCover claim made by Mr Fletcher; Document identified as number 71, which is an email from the investigator to Assistant Chief Fire Officer Bawden attaching a draft of the statement made in relation to Mr Fletcher's WorkCover claim; Documents identified as numbers 82 and 83, which are file notes described as personnel file documents, regarding WorkCover claims made by Mr Fletcher. 2 The documents have been disclosed by the Board in accordance with orders made by the Court. 3 The issue which presently arises concerns the production of those documents for inspection. The respondent, resists the application for inspection by relying on s 242A of the Accident Compensation Act 1985 (Vic) (Accident Compensation Act) which provides that: A person must not use information obtained under or pursuant to this Act or the Accident Compensation (WorkCover Insurance) Act 1993 except as authorised by or in respect of a matter or for a purpose arising under either or both of those Acts. 4 Then, s 242A provides for a penalty for a contravention of the section. 5 The Board is concerned that to produce the documents would be to use the information within the meaning of s 242A. The Board further claims that the documents amount to information, within the meaning of the section, and that they were obtained in the circumstances otherwise outlined by the section. 6 The argument of the Board centres upon what it calls the ordinary meaning of the word use. The Board argued that the ordinary meaning is to employ for some purpose or put in service. The Board consequently argued that making the documents available for inspection would be to use them within the ordinary meaning of the word, in the sense that they were being employed for some purpose. 7 Mr Harding, who appeared as counsel for the applicant disputes the Board's position at every stage of the requirements of the section. He contended, firstly, that to produce the documents was not to use and not, in any event, to use information. He further contended that it had not been established that the documents had been obtained in the way required by the section, namely, for a purpose arising under the Accident Compensation Act or the Accident Compensation (WorkCover Insurance) Act 1993. 8 The Court has wide powers to regulate proceedings within its jurisdiction. Pursuant to s 23 of the Federal Court of Australia Act (1976) (Cth) (Act): The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate. 9 The Federal Court Rules (2011) (Cth) specifically provide for orders for inspection and r 1.32 provides that the Court may make any order that the Court considers appropriate in the interests of justice. 10 From the limited circumstances surrounding the documents in question that have been put before the Court, it is appropriate in the interests of justice that the applicant have access to the contents of those documents. If the Court orders the production of the documents by the respondent, that production would not amount to a use within the meaning of s 242A. The concept of use within the meaning of the section does not contemplate production as a result of an order of the Court made pursuant to the statute and rules made under it. 11 In the context of the section, the Board's interpretation goes well beyond what would be expected. Were it intended by the legislature to exclude the power of the Court to order production, such exclusion would be expressly mentioned. Otherwise the interests of justice would be prejudiced by denial of relevant and probative material to one party to the litigation. 12 In these circumstances, it is not necessary to determine Mr Harding's other arguments relating to the other elements of s 242A. The order which the applicant seeks is justified. The Court will order that the Board produce for inspection the documents numbered 70, 71, 82 and 83 as listed in the affidavit of Christopher Wiseman sworn 30 July 2012. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.