Laurie Oke v Health Secretary

Applicant's motion

1. On 29 August 2018, the applicant filed a Notice of Motion seeking that the Commission grant leave pursuant to r 7.3 of the Uniform Civil Procedure Rules 2005 ("the UCPR"), to issue subpoenas generally, or in the alternative, for the Commission to grant leave to issue a summons to a named proposed witness to attend and give evidence to the Commission at the Substantive Hearing ("the Draft Summons"). Consistent with the Commissioner's orders of 24 May 2018, I will identify the proposed witness as Ms G.
2. The applicant's grounds and reasons are supported by an affidavit of the applicant's representative, Mr James Robert Fox, of the Health Services Union New South Wales ("the HSU",) sworn on 28 August 2018, attesting to Mr Fox's belief that the factual matters in the grounds and reasons are true.
3. The applicant asserts in the grounds and reasons the following: 1. the applicant's case contends that a conversation occurred between Ms Oke, the applicant's spouse, and Ms G to the effect that Ms G was solicited to make a complaint against Mr Oke; 2. Ms G's evidence on the circumstances of this solicitation bears reasonably on the determination of matters in issue before the Commission in these proceedings, including: 1. whether the reason for the dismissal had a basis in fact; and 2. whether the applicant was afforded due process; and 1. the HSU approached Ms G to seek that she give evidence on a voluntary basis by way of a witness statement. Ms G has not been available to facilitate that course.
4. The respondent resists leave being granted to the applicant to issue subpoenas generally, or to issue the Draft Summons.
5. The motion was heard by me on 26 September 2018.

Relevant statutory provisions

1. Part 7 of the UCPR applies to proceedings in the Commission pursuant to s 4 of, and Sch. 1 to, the Civil Procedure Act 2005 ("the CP Act"), and r 1.5 of, and Sch. 1 to, the UCPR.
2. Rule 7.3(1) of the UCPR is in the following terms: 7.3 Issue of subpoena in certain circumstances requires leave (1) A subpoena may not be issued, except by leave of the court, unless the party at whose request the subpoena is to be issued is represented by a solicitor in the proceedings. (2) Leave under subrule (1) may be given either generally or in relation to a particular subpoena or subpoenas. (3) Despite subrule (1), a subpoena may not be issued in relation to proceedings in the Small Claims Division of the Local Court, except by leave of the court, in any circumstances.
3. The applicant's representative submitted that leave would not be required to issue the Draft Summons if the applicant was represented by a legal practitioner and not by an industrial organisation. The applicant's representative did not submit that the Commission should read "solicitor" to include "industrial officer" or "industrial organisation". The applicant's motion and submissions accepted that leave was required pursuant to r 7.3 and addressed why leave should be granted in this matter. That is the question that the Commission must determine.

Should leave be granted?

1. The parties did not identify any authorities that guide the Commission in the application of r 7.3 with respect to industrial organisations or where the rule has been considered by the Commission in similar circumstances.
2. The principles which govern a grant of leave under r 7.3(1) were set out by Bellew J in Hamzy v Commissioner of Corrective Services and ors. (No 1) [2017] NSWSC 183: 5. Put simply, leave should not be given unless there is a good reason to do so. Some proper purpose for the issue of the subpoena must be established, bearing in mind that subpoenas are important steps in the litigious process. In considering a grant of leave, I must have regard to the various grounds on which a subpoena may be set aside. Those grounds include that a subpoena is oppressive, irrelevant, an abuse of process of the Court, or amounts to a fishing expedition: Samootin v Shea [2004] NSWCA 115 at [20] per Giles JA; Markisic v Commonwealth [2009] NSWSC 284 at [17]-[18] per Hislop J. 6. An overriding consideration in determining whether leave should be granted is that the party who seeks leave bears the onus of demonstrating that the subpoena has a legitimate forensic purpose. Whether such a purpose is demonstrated is a determination which must be made having regard to the issues in the proceedings: Santos Ltd v Pipelines Authority of South Australia (1996) 66 SASR 38 at [52]; Wong v Sklavos [2014] FCAFC 120 at [12].
3. I will consider this application by reference to these general principles.

Submissions and evidence

1. Although the applicant sought leave to issue subpoenas generally, the applicant's submissions and the evidence referred to by the applicant's representative at the hearing of the motion were directed substantially to whether leave should be granted to issue the Draft Summons.
2. The respondent resisted the motion and made the following submissions: 1. granting leave to the applicant to have summonses issued generally or to have the Draft Summons issued would be inconsistent with the overriding purpose of the CP Act and the UCPR to facilitate the just, quick and cheap resolution of the real issues in the proceedings ("the Overriding Purpose") (sub-s 56(1) of the CP Act); 2. the purpose of r 7.3 is to protect against subpoenas being issued at the request of those who may not understand the usual rules of practice and do not have ethical obligations to understand these rules. Consistent with this purpose, a motion seeking leave should demonstrate to the Commission a legitimate forensic purpose to issue the relevant summons and that the witness whom the relevant party seeks to subpoena would be able to assist the Commission to resolve the real issues in the proceedings. The applicant has not identified a legitimate forensic purpose for the issuance of the Draft Summons nor provided sufficient evidence to the Commission to allow the Commission to determine that Ms G's evidence would help to resolve the real issues in dispute between the parties; 3. there will be procedural unfairness to the respondent if leave is granted. Such procedural unfairness includes: that the dates for the filing of evidence have passed, the applicant has previously been delinquent in dates for the filing of evidence which has required leave of the Commission to be granted to vary the dates for filing of evidence, and the applicant will require leave to introduce new evidence if leave is granted for the issuance of the Draft Summons. This is not consistent with the Overriding Purpose; 4. compelling a free citizen to give evidence is a serious matter, as non-compliance has serious consequences for the witness, including possible arrest. The applicant has not provided proper or sufficient evidence about the contact with Ms G and the steps taken to arrange for Ms G to give evidence willingly, nor did the applicant give sufficient reasons why the Commission should grant leave to compel a non-willing witness to give evidence; and 5. the evidence that the applicant seeks to obtain from Ms G appears to be in support of evidence that the applicant has filed, that is not in proper form, and the content of which contains a serious allegation, which if it were to be made out would require the Commission to be satisfied to the standard required by Briginshaw v Briginshaw (1938) 60 CLR 336 ("Briginshaw"). This would result in a potential "sideshow" and would be inconsistent with the Overriding Purpose.
3. Mr Fox's affidavit was the only evidence read by the applicant in support of the motion and no evidence was read by the respondent in reply.
4. The Commission is not bound to act in a formal manner nor bound by the rules of evidence and may inform itself in any matter and in any way that it considers to be just including the use of unsworn and unsigned statements (s 163 of the Act) (Macfarlan JA in Reid-Frost v Industrial Relations Commission of New South Wales [2013] NSWCA 161 at [72]). For the purpose of determining this motion only, I have had regard to the evidentiary material filed, but not read in the proceedings, which was referred to in the submissions made by the parties in support of, and resisting, the motion, the matters of fact which the legal representatives referred to in submissions, the Applicant's Written Case and the Respondent's Written Case.

Consideration

1. I agree with the respondent that the Commission must exercise its discretion to grant leave in a manner which facilitates the Overriding Purpose (Kabir v Department of Family and Community Services [2016] NSWIRC 1009 at [13] - [14] cited with approval in Rous v Department of Education and Communities [2018] NSWIRComm 1017 at [22]).
2. While it is correct, as the legal representative for the respondent submitted, that industrial officers do not have the same ethical and legal obligations to their clients, courts and this Commission, as solicitors, industrial organisations are regulated by the Act and officers of industrial organisations regularly represent their members in proceedings before the Commission. In some respects, industrial officers act akin to legal practitioners in proceedings before the Commission. I have taken these matters into consideration in determining the question of leave.
3. I accept that Ms G can give evidence about a conversation between Ms G and Ms Oke which is referred to in the statement of Ms Oke filed and served in these proceedings, including whether this conversation took place.
4. I also accept Mr Fox believes that, if Ms G is compelled to give evidence, then Ms G's evidence will support the applicant's contentions that: Ms G was asked by one of the respondent's witnesses if she has "a problem" with Mr Oke, Ms G believes certain of the respondent's witnesses are friends; and these witnesses may have been asked by the Professional Standards Unit of the respondent about their relationship with the applicant.
5. The applicant submitted that Ms G's evidence will establish collusion between witnesses and accordingly, assist the Commission to determine whether the reason for the dismissal had a basis in fact; and whether the applicant was afforded due process. In oral submissions, the applicant's representative referred to: the proposition that there was collusion involved between witnesses with a view to bring whatever allegations possible to effect a removal of the applicant from the workplace. We say that further it is going to be relevant to consideration of whether procedural fairness was afforded when the employer declined to make any enquiries into that allegation when it was brought to them.
6. However, I agree with respondent's submission that, in order for the Commission to determine, on the balance of probabilities, whether an allegation of collusion is made out, that the evidence that will be required to meet the standard of proof is likely to be significant.
7. I have considered the material to which I have been referred by the applicant in this matter, including annexure "MO1" to the statement of Ms Oke, in which Ms Oke states her reason for believing there had been collusion between witnesses as follows: Ms G also mentioned that both [named witness] and [named witness] are good friends which makes me believe that there is likelihood of collusion between the two.
8. The applicant bears the onus to establish the legitimate forensic purpose for the issuance of the summonses and to demonstrate this legitimate forensic purpose with regard to the issues in the proceedings. The applicant's evidence, including MO1, does not establish a legitimate forensic purpose to issue the Draft Summons. Nor has the applicant's evidence established that the evidence of Ms G will assist the Commission in determining whether the dismissal had a basis in fact or whether the applicant was afforded due process.
9. I accept that officers of the HSU have taken some steps to obtain evidence from Ms G without the need for the Draft Summons to be issued. However, the evidence does not disclose the exact nature and extent of these steps nor why Ms G does not wish to give evidence voluntarily.
10. The evidence also did not disclose, in a satisfactory way, why the application for leave to issue summonses was not made before the applicant was required, on the twice amended timetable, to file his evidentiary material in reply.
11. Issuance of summonses generally in this matter and/or issuance of the Draft Summons will likely result in an application by the respondent to file and serve additional evidence and the need for additional hearing time. In circumstances where the applicant has already been provided with leave in relation to the filing and service of his evidence, he has not provided the Commission, which must act in a manner to facilitate the Overriding Purpose, with sufficient evidence why further leave should be granted in these circumstances.
12. As the applicant has not established a legitimate forensic purpose for the issuance of the Draft Summons or summonses generally, and for the reasons set out above in paragraphs [30], [31] and [32], I do not consider that granting leave to the applicant to issue summonses generally or to issue the Draft Summons would be consistent with the Commission's obligation to act in a manner consistent with the Overriding Purpose or that the granting of leave is otherwise appropriate.

Orders

1. The Commission makes the following orders: 1. Leave to issue subpoenas generally is refused. 2. Leave to issue a summons to Ms G to attend and give evidence to the Commission at the hearing commencing 4 December 2018 is refused. 3. The motion is dismissed.

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: 26 October 2018