Jaggi v City of Parramatta Council

The decisions under appeal

1. The appellant, the applicant in the substantive proceedings, has appealed against two decisions of the Industrial Registrar in relation to the issue of summonses. In matter 2023/00320804, the appeal is against the decision of the Industrial Registrar not to issue a summons in respect of two categories of documents. In 2023/00345303, he appeals against a decision of the Industrial Registrar to grant leave to issue summons concerning several categories of documents.
2. For completeness, neither party is represented by a solicitor and so, each required leave to issue a summons. This is set out in r 7.3(1) of the Uniform Civil Procedure Rules 2005.

Submissions

1. In 320804, in his outline of submissions, the applicant submitted that: "1. On 27 August 2023, the Applicant requested the Commission to issue a summons to produce … and included 4 items in the Schedule. 2. On 28 August 2023, the Respondent advised the registrar that it consented to produce documents for items numbers 1 and 3 of the Schedule however raised an objection on items 2 and 4 of the Summons of the Schedule. 3. On 29 August, the Registrar granted leave to issue Summons to Produce for items 1 and 3 and issued directions that a Notice of Motion relevant evidence be filed by 8 September 2023 should the Applicant wish to press for documents listed at items 2 and 4 of the Summons to Produce; and 4. On 7 September, the Applicant filed a Notice of Motion and the Affidavit Jaggi. 5. On 18 September, the Respondent filed the submissions opposing the Applicant's Notice of Motion. 6. On 20 September 2023, the Registrar heard the motion and issued orders."
2. The appellant appeals against two parts of the order of the Industrial Registrar and as set out in the Appeal document (Appeal Application): "Specific part of Order 1 "However, I refuse the request for other candidates' reference checks on the basis that no legitimate forensic purpose exists." Specific part of Order 3 "Further, I grant leave with respect to category 4 subject to the following limitations: All e-mails and other correspondence, referring to the applicant, exchanged/communicated from 6 to 12 July 2023 between the individuals named at 4(l), (Il) and (VI)." [Emphasis in original.]
3. The Commission observes that the Outline of Applicant's Submissions (OAS) do not actually point to errors but re-run the case before the Industrial Registrar.
4. The respondent's Outline of Submission (ROS) set out a number of matters: "2. In the Appeal Application filed on 10 October 2023, the Appellant identifies three grounds of appeal, alleging that the Industrial Registrar erred at law by: A. "failing to provide any or proper reasons for her decisions"; B. "failing to accord procedural fairness and natural justice by not providing any indication of any fact findings, what evidence was considered or how the competing submissions by the parties were reconciled"; and C. "failing to apply the correct test while enquiring on the existence or otherwise of a 'legitimate forensic purpose' in relation to Order 3" 3. The Appellant's Outline of Submissions filed on 30 October 2023 do not support, or otherwise explain, the errors of law allegedly made by the Industrial Registrar in her decision of 20 September 2023. 4. The Appellant's Outline of Submissions clearly seek to relitigate the matters heard by the Registrar on 20 September 2023 …" [Emphasis in original. Footnotes omitted.]
5. As to the first of those grounds, the ROS submitted that: "8. The Industrial Registrar is not obliged to provide reasons for her decisions in the same way that is required of the judicial officer." … 12. As an administrative decision maker, the Industrial Registrar was under no obligation to issue formal reasons to support her decision."
6. As to ground B, the respondent said that: "14. In order to have any prospect of success on this ground the Appellant would need to demonstrate that a failure to afford procedural fairness materially affected his rights in relation to the issuing of the Summons to Produce. The Appellant has not done so and cannot do so for the following reasons: A. The Appellant was given a hearing on whether the Summons should be issued; B. The Appellant was given notice that he would need to be heard on whether the Summons would be issued; C. On 7 September 2023, the Appellant filed a Notice of Motion and an affidavit in advance of the hearing on 20 September 2023; D. As is dealt with directly below, the Registrar actively engaged with the Appellant to confirm that he understood what needed to be addressed and the Appellant confirmed he understood." [Emphasis in original. Footnotes omitted.]
7. The submissions then took the Commission to various parts of the transcript of the hearing where the Industrial Registrar engaged with the parties: "15. Tab 10 of the Appeal Book [at lines 29-33 on p106; lines 39-41, 45-47 on p108; lines 21-25 of p109; lines 20, 30-32 on p110; lines 13-14 on p112; lines 12-14 on p115; lines 12 and 40 on p116] demonstrates that at the hearing on 20 September 2023, the Industrial Registrar made enquiries of each of the parties in order to form a view on the documents requested by the Appellant. Both parties were also able to provide the Registrar with written submissions prior to the hearing of the matter. 16. The Appellant was afforded the same opportunity as the Respondent to advance his arguments and to be heard by the Registrar on 20 September 2023. … 17. This ground could only have succeeded if the appellant had shown that he was denied the opportunity to be heard. …" [Emphasis in original. Footnotes omitted.]
8. And as to ground C: "18. The Registrar applied the appropriate test in determining whether leave ought to be granted for categories 2 and 4 of the summons. 19. The Registrar was guided by the submissions of both parties, which relied on authorities which are well settled. 20. In particular, the Appellant (and Respondent) relied on Secretary of the Department of Planning Industry, and Environment v Blacktown City Council [2021] NSWCA 145, to assist the Registrar in forming a view as to whether documents requested by the appellant served a legitimate forensic purpose." … 23. In the hearing on 20 September 2023, the Registrar invited the appellant to address the legitimate forensic purpose of releasing to the Appellant someone else's reference checks. The Appellant submitted at lines 27 - 39 on p 109 of Tab 10 of the Appeal Book that, "Registrar, I think the only argument that I can think of… it's a subjective matter. It's not a matter of law …So that's the only argument I'm going to put forward in my attempt to convince you, Registrar." [Emphasis in original.]

Consideration of 2023/00320804

1. In the OAS, the applicant submitted that there were three errors: 1. he had been denied procedural fairness; 2. the wrong test had been applied; and 3. inadequate reasons had been provided by the Industrial Registrar.
2. In oral submissions, the applicant agreed that 1 and 2 were not expressed correctly. To the extent that he raised procedural fairness, the issue concerned adequacy of reasons and, to the extent the correct legal test was raised, again adequacy of reasoning to understand the outcome was the issue that he submitted was in error.
3. For completeness, as to procedural fairness, there is no basis raised in 320804 that could constitute an absence of procedural fairness. The parties were on notice of what was to be determined, they had time to prepare, their submissions were heard, and the Industrial Registrar explained the process and issues. This much is abundantly clear from the transcript of the matter before the Industrial Registrar, and now available to the Commission.
4. It is clear that the procedure adopted had no defect which could be the subject of legitimate criticism. The Commission observes that a complaint of inadequate reasons or explanations is a separate complaint, it is not a complaint of procedural defect and is addressed separately in these reasons.
5. As to the question of whether the correct test was applied by the registrar, it is clear that the parties referred the Industrial Registrar to Secretary of the Department of Planning Industry, and Environment v Blacktown City Council [2021] NSWCA 145 and the Industrial Registrar considered this to be the relevant law to be applied to the questions before her.
6. Again the applicant submits that inadequate reasons are the basis for proposing this as the basis of the appeal and, again, the Commission can see no error in the Industrial Registrar applying the correct legal test. It is clear that the real complaint regarding this basis of the appeal is that the Industrial Registrar reached the wrong conclusion.
7. There is no error in the decision of the Industrial Registrar so far as the application of the correct test is concerned.
8. Mr Jaggi is self-represented and submits that the Industrial Registrar should have provided more complete reasoning for her decision.
9. Considered in the context of: 1. the delegation from the Commission to the Industrial Registrar; 2. the interlocutory nature of the Industrial Registrar's decision; 3. the submissions of the parties; and 4. the interactive nature of the hearing, as reflected in the transcript; the Commission considers that no error is to be found in the Industrial Registrar's decision in so far as inadequate reasoning is concerned.
10. It is readily apparent to the Commission that the logic and reasoning of the Industrial Registrar followed an orthodox approach and reached an orthodox outcome.
11. The Commission observes that Mr Jaggi is a self-represented litigant and may not have found the logic and reasoning as apparent. This is, of course, regrettable and is one reason that the Commission has some obligation to provide assistance to self-represented litigants.
12. There is, of course, a balance to be struck between the efficient use of the Industrial Registrar's time and the assistance to a self-represented litigant. In this case, it is clear that the logic is sufficiently exposed.
13. As to whether a second person should have been included in the summons, and whether emails of further persons should have also been included, both matters are addressed sufficiently in the transcript.
14. I do not accept the submission to the extent that the Industrial Registrar has no obligation to provide reasons, but I find that the reasons may be briefer and less extensive than would be expected of a member of the Commission.
15. The purpose of delegating such a decision to the Industrial Registrar is to increase efficiency, both in terms of time and cost. Both would be defeated if the Industrial Registrar was expected to meet the reasoning standard expected of a member of the Commission.

Submissions

1. Turning to matter 2023/00345303, the appeal grounds state that: "1. The Registrar erred at law in failing to provide any or any proper/adequate reasons for her orders. … 2. The Registrar erred at law in failing to accord procedural fairness and natural justice by not providing any indication of fact finding, … … 4. The registrar erred at law in failing to accord procedural fairness to the Applicant by discouraging him to convince her that there is no legitimate forensic purpose … 5. The Registrar erred in ordering the Applicant to produce bank statements without redaction of expenditure (debit) items. … 6. The registrar erred in ordering the Applicant to produce credit card statements which, as a matter of common knowledge, are meant to contain information of expenditure (debits) only. … 7. The Registrar erred in ordering the applicant to produce all the financial information for any business that he might be running, although the Respondent did not adduce any evidence, at all, before the Commission to establish that the Applicant is conducting a business or earning an income from any other non-employment source. 8. The Registrar erred in ordering the Applicant to produce personal bank statements and personal credit card statements or transactions. … 9. The Registrar erred in issuing a Summons on Burwood Council to produce employment related documents although the Respondent had failed to establish the existence of an employment relationship between the Applicant and the Burwood Council." [Emphasis in original.]
2. In the appellant's Outline of Submissions (AOS2), he set out that: "2. On 21 September 2023, the respondent requested the Commission to issue two summons to produce on the Applicant and the Burwood Council. 3. The Summons to Produce issued on Burwood Council sought, in summary, any contract of employment, payslips, and position descriptions related to the Applicant for the period 1 July 2023 to 1 September 2023. 4. The Summons to Produce issued on the Applicant sought, in summary, documents demonstrating the income earned by the Applicant, any contract of employment and all bank accounts/credit card statements from 1 July 2023 and 1 September 2023. 5. The Applicant filed a notice of motion and opposed the Summons based on lack of legitimate forensic purpose, abuse of process, fishing expedition and oppressive nature. … 9. … The matter was heard before the registrar on 25 October 2023 and the registrar gave a decision on the same day. … 10. The applicant submits that in a contested matter the Commission is required to act in accordance with procedural fairness and the Registrar is obliged to provide the reasons that led to a particular result. The parties must be able to see the extent to which their arguments have been understood and accepted as well as the basis of the Registrar's decision. … 16. It follows that the Registrar had the same obligation to provide reasons as expected from a judicial officer i.e, a member of the Commission. 17. While the extent/adequacy of the reasons will depend upon the circumstances and the kind of case, the reasons should deal with the substantial points which have been raised and provide an intelligible explanation of the process of reasoning that has led the Registrar from the evidence and submissions to the findings and from the findings to the ultimate conclusion. 18. The applicant raised the following substantial points in his Submission in Reply filed on 17 October 2023 and verbally before the registrar on 25 October 2023; and the Registrar had an obligation to provide an intelligible explanation on these points. I. The Respondent did not adduce any evidence before the Commission to establish the Applicant is employed at the Burwood Council and the summons were issued solely on speculation. II. The Respondent abused the process in an attempt to intimidate the Applicant by issuing the summons on the Burwood Council for the same documents which were covered in the summons issued on the Applicant. III. There is no legitimate forensic basis to summons documents for a brief period of 2 months, from 1 July 2023 to 1 September 2023. And the relevant date for starting the purpose of calculating loss for remuneration is 24 July 2023 and not 1 July 2023. IV. The Respondent summonsed the Applicant's financial information, including his personal information, asserting it wants to interrogate and see if the applicant has received other sources of income and not necessarily from employment. In their own words, they argued that they are on a fishing expedition, as they did not know if the Applicant is carrying on a business activity but on that speculative basis desired access to his financial information which was not limited to the financials of any imaginary business he might be involved in but also his personal financials. 19. The Registrar did not address any of the above issues in her decision appropriately or at all. … 38. … [The] respondent chose that course of action because it had a collateral purpose of issuing the Summons on Burwood Council … . 39. The Registrar erred in not providing any reasons on the Applicant's submission that the Respondent had abused the Commission's process though it was a specific and substantial ground on which the Applicant invited the Registrar to set the Summons on Burwood aside."
3. The applicant then set out under two separate headings the period of two months to calculate loss from remuneration lacks forensic purpose and access to personal financial information. These submission, as to the substantive merits of the issuing of the summons, have not been extracted here, as they would only become relevant if the Commission concludes that there was an error in the decision of the Industrial Registrar. If appropriate, the Commission would return to these arguments later.
4. At the end of the AOS2, under "Miscellaneous", as will be important later, the appellant set out: "65. The Applicant advises that due to poor telephone line he did not gather that the Registrar got the impression that the Applicant declined to answer her question around his employment situation with Burwood Council. The applicant did not intend to do it and made clear twice during the hearing (sections 5-10 Page 12 and sections 15-20 page 13 of the Transcript). 66. The Applicant however does admit that he felt hesitant in answering the question at first as he felt that he was being indirectly cross-examined by the Respondent because the Registrar made the enquiries on the Respondent's prompting."
5. These related to a statement by the Industrial Registrar as to the appellant having declined to answer a question put to him by the Industrial Registrar about his employment status.
6. The respondent's Outline of Submission (ROS2) set out, at para 1, the nature of the appeal, then set out: "2. Noting that the material identified in category 3 of the Summons to the Appellant was limited on 25 October 2023, with the consent of the Respondent, to include 'Copies of any and all documents, account statements, credit card statements, loans in relation to accounts operated by, for and on behalf, or joint for and on behalf of Mr Vikram Jaggi in the period between 1 July 2023 and 1 September 2023' and to exclude 'cheques, cheque butts, automatic teller machine receipts and all other financial statements'."
7. The respondent then set out what it described as the categories A to K of the grounds of appeal identified by the appellant. It is necessary for me to articulate what they are: A. 'failing to provide any and any proper/adequate reasons for her orders', B. 'failing to accord procedural fairness and natural justice by not providing any indication of fact finding and what evidence was considered or how the competing submissions of the parties were reconciled'; C. 'failing to expose the path of reasoning'; D. 'failing to accord procedural fairness to the Applicant by discouraging him to convince her that there was no legitimate forensic purpose and the respondent embarked on a fishing expedition'; E. 'ordering the applicant to produce bank statements without redaction of expenditure (debit) items'; F. 'ordering the Applicant to produce credit card statements which, as a matter of common knowledge, are meant to contain information of expenditure (debit0 only'; G. 'ordering the applicant to produce all the financial information for any business he might be running'; H. 'ordering the applicant to produce personal bank account statements and personal credit card statements/transactions'; I. 'issuing a summons on Burwood Council, although the Respondent had failed to establish the existence of any employment relationship between the Applicant and the Burwood Council'; … J. 'issuing a summons on Burwood Council constitutes an abuse of process; and K. 'The Registrar made a jurisdictional error by enquiring from the applicant to answer if he is employed at the Burwood Council on the Respondent's prompting'."
8. As to grounds A and C, the respondent submitted: "11. The Industrial Registrar is not a judicial officer and is not obliged to provide reasons for her decisions in the same manner as that required of a judicial officer. … 15. As an administrative decision maker, the Industrial Registrar was under no obligation to issue formal reasons to support her decision. 16. In any event, the Industrial Registrar handed down a considered decision on 25 October 2023. In that decision the Registrar identified that the Appellant sought to set aside both summonses on the grounds of relevance, legitimate forensic purpose and abuse of process."
9. As to grounds B and D: "18. The Respondent rejects the assertion that procedural fairness was not afforded to the appellant."
10. I note that this basis of appeal was not pressed in this form by the appellant during the proceedings before the Commission.
11. It is worth noting that again, at para 20, the respondent has set out a long list of occasions, which it asserts, demonstrate that at the hearing on 25 October 2023 the Industrial Registrar made enquiries of the appellant in order to form a view on the documents requested by the respondent. The Commission has gone through the transcript of the proceeding before the Industrial Registrar, and agrees that, in fact, that is what occurred at each of the references.
12. At para 22 of the ROS2, the respondent submitted: "22. In relation to ground D, the Registrar heard each of the parties in relation to Category 2 of the summons directed at the Appellant. Counsel for the respondent took the registrar to Secretary of the Department of Planning Industry and Environment v Blacktown City Council [2021] NSWCA 145 to assist in forming her view as to whether documents ought to be provided to the Respondent."
13. As to grounds E to J the ROS2 set out: "25. The Appellant's Application and Outline of Submissions do not identify or even allege an error of law in grounds E - J. The Appellant instead seeks to litigate the substance of the summons heard by the Registrar on 25 October 2023."
14. As to ground K the ROS2 set out: "27. Section 163(1) of the Industrial Relations Act 1996 (the 'IR Act') provides: 163. Rules of evidence and legal formality The Commission - (a) is not bound to act in a formal manner, and (b) is not bound by the rules of evidence and may inform itself in any manner on any matter in any way that it considers to be just, and (c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. 28. Under s 163(1) of the IR Act the Industrial Registrar was entitled to inform herself on any matter, including the question of whether the Appellant works at Burwood Council, in any way that she considers to be just, including by asking the Appellant whether he worked at Burwood Council. 29. The question was highly relevant to a fact in issue, being the relevance of the material sought from Burwood Council to the substantive proceedings and provided the Appellant with the opportunity to support his position that the material sought was not relevant to the substantive proceedings. 30. The Registrar's discretion to ask the appellant this question is within the scope afforded to her by s 163(1) and therefore discloses no error."

Consideration of 2023/345303

1. In substance again, the main case of the appellant was that inadequate reasons were given by the Industrial Registrar for him to understand the basis of the Industrial Registrar's decision. The decision of the Industrial Registrar was preceded by her reasons. These are set out at pp 68 and 69 of the appeal book in relation to this matter. Those reasons are extracted and are uncorrected from the transcript.
2. They set out the basis of the proceedings, what was being determined, what the substantive matter was and then set out the following: "This application seeks that Parramatta Council employ the applicant in a specified role and, further, that they pay the applicant remuneration or other financial benefits lost or foregone. When the Commissioner hears the substantive matter, they will need the relevant information to consider any appropriate remedy. The respondent's submissions were filed on 13 October 2023 and the applicant's submissions in-reply were filed on 17 October. The applicant seeks to set aside the two summonses in their entirety, on the basis set out in the grounds and reasons of the notice of motion, that the information requested does not shed any light on the relevant issues subject of the application; do not serve any legitimate forensic purpose; that it is oppressive, a vexatious fishing expedition and abuse of process. The respondent maintains that there is a legitimate forensic purpose to issuing the summonses to produce and refers to much of the caselaw in their submissions, including Secretary of the Department of Planning Industry and Environment and Blacktown City Council. The respondent submits that the documents sought by the summonses are highly relevant or will cast light on the issues material to the proceedings. With respect to category 3 of the summons issued to Mr Jaggi, this category was confined during the hearing to account statements, bank and credit card statements and an undertaking by Mr Nagle that they would be limited to legal representatives. S 165(3) of the Industrial Relations Act states that the summons may require a person to attend and produce documents. When documents sought are relevant, this facilitates a public interest of disposing of litigious matters and allows a just, quick and cheap resolution of the real issues in the proceedings, hence my decision today."
3. The industrial Registrar then set out her decision, which was that, "1. I dismiss the notice of motion filed on 25 September to set aside two summonses to produce. 2. I find the documents sought are relevant and serve a legitimate forensic purpose. 3. I order the material within the confined category 3 in the summons issued to Mr Jaggi to produce. The return of summons at 9.15am on 1 November."
4. When combined with the interactive hearing conducted by the Industrial Registrar, as evidenced by the transcript, I find the Industrial Registrar provided proper and adequate reasons.
5. Comments made above at [41]-[42] in respect of matter 2023/00320804 are apposite in 2023/00345303, in so far as balancing the assistance to a self-represented litigant and the functions of the Industrial Registrar.
6. In 345303, it is worth observing that Mr Jaggi is, in part, the author of his own difficulties. He ran the contradictory positions that: 1. the respondent had not established a basis that he was employed by Burwood Council; and yet that the summons to Burwood City Council was an abuse of process because it sought to effectively bad mouth him to his employer. 2. he opposed contractor issued summons, yet never answered if he ran a business.
7. In respect of each, being an employee of Burwood Council and running a business, he maintained he never refused to answer whether each was a correct statement of his status.
8. In his submissions he noted some difficulty with the telephone connection on the occasion that the matter was called before the Industrial Registrar and submitted that he did not understand that the registrar had said he has answered that he was not an employee. I am not sure what to make of that, because he had not answered that question.
9. I listened carefully and Mr Jaggi never answered either question before the Commission today. They were simple questions and could have been the basis for the Industrial Registrar to require less documentation of Mr Jaggi. In circumstances where a party avoids responding to a straightforward question, the Industrial Registrar may legitimately be more open to broader or further categories of documents.
10. In any event, employers are, as Mr Nagle of counsel for the respondent submitted, accustomed to receiving summonses in respect of their employees for a variety of legal proceedings. That a summons may cause some level of even embarrassment is not of itself a basis to refuse its issuance. It is understandable that Mr Jaggi, as a self-represented applicant, may be unaware that employers regularly receive such summonses.
11. There is no apparent or obvious error in the order, logic or exposed reasoning of the Industrial Registrar. The orders are orthodox in matters before the Commission and especially so in the case where the appellant, the applicant in the substantial proceeding, has made submissions that tend to suggest he is not an employee of Burwood Council and is not a contractor but has gone to considerable lengths to avoid stating one way or the other his position on each point.

Orders of Industrial Registrar correct

1. For completeness, the Commission observes that had the case put by the appellant that inadequate reasons were provided been upheld, the Commission would have made the same orders as the Industrial Registrar.
2. In respect of the second, successful, applicant for the position at the respondent, the Commission is not conducting a merits review of the employment or otherwise of the appellant, the applicant in the substantial proceedings or any other person. There is no relevance for the second person's reference checks in that case, as the respondent bears the onus to disprove the basis of its actions.
3. As the categories of persons whose emails are captured, only the executives and not their personal assistants or the contractor can be relevant to the motives of the respondent. Moreover, any emails involving the others and one of the executives is captured by that email being from an executive. Emails between the other parties, between the personal assistants or between them and the external party, cannot have any legitimate forensic purpose. They are too tangential to be so.
4. As to the Burwood Council summons and the financial records of Mr Jaggi, both of these have already been addressed previously.

Outcome

1. For these reasons, the Commission dismisses both appeals in both matters. C Muir Commissioner

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: 21 November 2023