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[2005] NSWADT 16
mixed. Leave granted to issue summonses for production of internal memoranda created by named officers concerning termination/resignation (limited to 1 April 2000–3 October 2002) and concerning Medical Board...
Dr O’Sullivan claimed his employer forced him to resign while he was ill and withheld leave payments. Before the discrimination hearing, he asked the Tribunal to force the employer to hand over internal memos and to bring three doctors to give evidence. The Tribunal said yes to some memos (but only those written inside the exact time period of the complaint) and to two of the doctors because they had been directly involved. It said no to other memos that were already caught by freedom-of-information exemptions, to a later medical report, and to the third doctor. The decision shows that parties cannot use Tribunal summonses to get around FOI exemption decisions, and that everything sought must be tied tightly to the actual complaint the Board referred.
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2,521 words · generated 24/04/2026
Dr Brendan O’Sullivan was employed by Central Sydney Area Health Service (CSAHS). On 18 October 2002 he lodged a complaint with the Anti-Discrimination Board alleging that CSAHS had discriminated against him on the ground of disability by forcing him to resign at a time when his illness was documented and by sequestering more than $77,000 in sick leave and long-service leave entitlements. The acts of discrimination were said to have occurred between 4 June 2000 and 3 October 2002, the latter date being the final refusal to reconsider his appeals. The Board referred the complaint to the Equal Opportunity Division of the Administrative Decisions Tribunal, giving the Tribunal jurisdiction only over that period.
No linked legislation citations have been extracted yet.
While preparing for the substantive hearing, Dr O’Sullivan (who appeared in person) applied for leave to issue summonses. He sought production of four categories of documents: (i) 22 specific documents previously identified in an FOI matter as exempt under Sch 1 cl 4(1)(c) of the Freedom of Information Act 1989; (ii) all internal memoranda or electronic documents created by seven named officers (Professor Bashir, Dr Horvath, Mr Wallace, Dr Stewart, Dr Kennedy, Dr Storm and Dr Barclay) concerning his termination or resignation from 1 July 1999 to 3 October 2002; (iii) all such internal documents concerning complaints made about him to the NSW Medical Board from 1 July 1999 to date; and (iv) all files and notes provided to Dr Barclay for the preparation of his 22 April 2003 report. He also sought summonses requiring Dr Diana Horvath (former Chief Executive), Dr Harold Storm and Dr William Barclay to attend and give evidence.
The Respondent, represented by counsel, opposed most of the requests. It argued that Dr Horvath had not been CEO at the time of the critical events in 2000, that the letter in which Dr Storm referred to Dr O’Sullivan as an “ill colleague” post-dated the alleged discrimination, and that Dr Barclay’s report was prepared nearly three years later and therefore irrelevant. On the documents, CSAHS contended that those in category (i) were exempt under FOI, that most documents post-dated the complaint, and that the breadth of the requests (especially the “to date” formulation) was onerous and amounted to a fishing expedition.
The Tribunal (Grotte E, Bolt M, Nemeth de Bikal L) heard the application on 8 and 10 November 2004 and delivered its decision on 2 April 2005. It dealt first with the document summonses. Category (i) was refused because it directly overlapped with unresolved FOI exemption claims and would subvert the FOI statutory scheme (paras 22–25). Categories (ii) and (iii) were granted but confined to the precise parameters of the referred complaint: 1 April 2000–3 October 2002 for resignation documents and 1 October 2002–3 October 2002 for Medical Board complaint documents (paras 26–29). Category (iv) was refused because the Barclay report and its briefing materials largely post-dated the complaint and risked duplicating FOI-exempt matter (paras 30–31). The Tribunal ordered CSAHS to produce the category (i) documents to it for inspection on the first day of hearing notwithstanding the refusal of the summons.
On the witnesses, the Tribunal was satisfied that Dr Horvath and Dr Storm possessed direct knowledge of the Respondent’s actions concerning both the employment/resignation issues and the Medical Board complaints and that their evidence would materially assist the Tribunal (paras 32–33). Summonses to them were allowed. Dr Barclay’s evidence was not required; his report had been commissioned well outside the complaint period and would not assist determination of the discrimination claim (para 34).
The orders therefore gave Dr O’Sullivan partial forensic armoury while imposing tight temporal and subject-matter limits and protecting the integrity of the FOI process.
The Tribunal’s reasoning is grounded in three interlocking propositions, each drawn from earlier ADT and superior-court authority and applied rigorously to the facts.
First, every summons must satisfy a “legitimate forensic purpose” test. At para 26 the Tribunal cites Battenburg and Moore for the rule that the applicant must show reasonable grounds to believe the material sought will materially assist the case. Fishing expeditions are not permitted. The Tribunal applied this test category by category. Internal memoranda created by the named officers about the termination and Medical Board complaints were relevant to the res gestae of the discrimination allegation; hence categories (ii) and (iii) passed. Conversely, the Barclay briefing files (category (iv)) and the evidence of Dr Barclay himself were too remote in time and purpose.
Second, the FOI Act 1989 creates a structured code for access to government documents. At para 23 the Tribunal quotes the President in Patsalis: using a summons to obtain documents that are the subject of an FOI exemption claim “would put the whole FOI scheme on its head”. The Tribunal carefully distinguished C (No.2), noting that that case concerned documents already produced under FOI, not documents withheld as exempt (para 24). Because the 22 documents in category (i) had been identified as exempt and were still the subject of FOI processes, a summons for them was refused as an abuse of process (para 25). The practical compromise—ordering the Respondent to bring those documents to the Tribunal for inspection—allowed the Tribunal to perform its gatekeeper role without bypassing the FOI exemption machinery.
Third, the Tribunal’s jurisdiction is delimited by the complaint as referred by the Anti-Discrimination Board. All summonses were therefore read down to the period 4 June 2000–3 October 2002. Requests that reached back to 1 July 1999 or forward “to date” were narrowed or refused so that the interlocutory process did not enlarge the substantive case the Respondent was required to meet.
The Tribunal’s assessment of the three doctors illustrates the materiality threshold in action. Dr Horvath was CEO at material times, had direct dealings with Professor Bashir, received information from Dr Storm, and was alleged to have acted with malice in complaints to the Medical Board; her evidence was therefore centrally relevant (para 32). Dr Storm supplied most of the information that went to the Medical Board and had been involved in the “ill colleague” correspondence; his evidence would materially assist (para 33). Dr Barclay’s 2003 report, prepared without examining Dr O’Sullivan and long after the events complained of, fell outside the complaint’s temporal and substantive boundaries (para 34).
Every conclusion is expressly tied to “the particular circumstances of Dr O’Sullivan’s complaint, to the parameters of the complaint as referred … and to the relevant case law” (para 18). No broader policy pronouncements are made; the decision is tightly fact-specific yet articulates clear procedural rules for future ADT Equal Opportunity matters.
Prior to this decision the ADT had begun to map the intersection between its compulsory process powers (ss 70, 73, 84 of the Administrative Decisions Tribunal Act 1997) and the FOI Act 1989. Patsalis (followed at para 23) had established that a summons framed in the same terms as an FOI request would “ordinarily fail”. C (No.2) had indicated that a summons could still issue for documents already released under FOI because the original documents might differ and FOI was not an exclusive remedy. Moore and Battenburg supplied the “legitimate forensic purpose” test drawn from civil litigation authorities such as Hunt v Wark and Grassby.
O’Sullivan synthesises these strands. It confirms that Patsalis applies with full force to documents still claimed as exempt, rejects any suggestion that an FOI application precludes a summons for non-exempt or already-produced material, and insists that temporal and subject-matter limits must mirror the referred complaint. The decision thereby sharpens the boundary between legitimate forensic inquiry and impermissible collateral attack on FOI exemptions.
After the decision, the law in the ADT remained consistent with these propositions. The requirement that summonses be confined to the parameters of the referred complaint has become a standard limiting device in Equal Opportunity Division matters. The practical order for Tribunal inspection of otherwise exempt documents has been used sparingly but remains available as a safety valve where relevance cannot be determined on the face of the exemption claim. The case stands as an authoritative application of the Patsalis principle rather than a radical departure.
Para 23 (quoting Patsalis): “It would put the whole FOI scheme on its head if people who had brought forward their request within an FOI framework then within the context of those very proceedings started using summonses with the same objective.”
Plain English: Once you have used the FOI route and lost on exemption grounds, you cannot simply re-run the same request through a Tribunal summons; that would destroy the FOI system Parliament designed.
Para 24: “C (No.2)’s case is not inconsistent with the President’s decision in Patsalis’ case. In that case the Deputy President said that a summons can still be issued in the Tribunal for the same documents that have been produced to a party under the FOI Act. That case did not deal with documents identified as ‘exempt’ under the FOI Act and were therefore not produced.”
Plain English: If the FOI officer has already given you the papers, you can still summons the originals. But if the officer has lawfully refused to give them because they are exempt, a summons will not help you.
Para 26: “Summonses must have a legitimate forensic purpose and must not be for ‘fishing expeditions’ … the test is that the summonsing party must demonstrate that there are reasonable grounds to believe that the summonsed material would materially assist the summonsing party’s case.”
Plain English: You must show the judge or Tribunal member why you think the document or witness will actually help your case. Hoping that something useful might turn up is not enough.
Para 27: “As the complaint referred from the ADB is limited to the period 4 June 2000 to 3 October 2002, the Tribunal is of the view that the documents produced should be limited but considers a reasonable period to be 1 April 2000 to 3 October 2002.”
Plain English: The Tribunal will not let the preliminary skirmish about documents become wider than the real case it has been asked to decide.
Para 32: “The Tribunal is satisfied that Dr Horvath as the Chief Executive Officer of the Respondent has direct and relevant knowledge … The Tribunal is satisfied that Dr Horvath’s evidence would materially assist it in its determination of the complaint.”
Plain English: The CEO was in the middle of the decisions complained about; hearing from her will help the Tribunal decide whether discrimination occurred.
This decision is triggered whenever an applicant in the Equal Opportunity Division has used the FOI Act and then seeks a summons for the same or overlapping material. It applies with particular force where:
The precedent is not limited to disability discrimination or health-service employers; the principles are expressed generally and have equal application to race, sex, age or victimisation complaints in the ADT.
The Tribunal’s articulation of the Patsalis principle and the Moore legitimate-forensic-purpose test has been treated as authoritative within the ADT. Subsequent decisions have routinely refused summonses that duplicate unresolved FOI exemption claims, citing para 23 of O’Sullivan for the proposition that such use of compulsory process would subvert the FOI statutory code. The practice of ordering production to the Tribunal itself for inspection (para 25 and order 37) has been followed in cases where relevance cannot be determined on the papers alone. The strict temporal limitation to the parameters of the referred complaint (paras 27 and 29) is now a standard screening mechanism applied at directions hearings.
The distinction drawn between documents already produced under FOI (C (No.2)) and those withheld as exempt (O’Sullivan following Patsalis) has been maintained. Tribunals continue to grant witness summonses only where the proposed witness is shown to have “direct and relevant knowledge” that “would materially assist” the determination, language lifted directly from paras 32–33. No appellate court has cast doubt on the reasoning; the decision is routinely included in lists of authorities on ADT procedure in equal-opportunity matters.
The judgment leaves several practical questions unresolved. First, what degree of overlap between a summons and an FOI request is tolerable before the summons “must ordinarily fail”? The Tribunal used the phrase “really cover the same scope” (para 23); future cases will need to decide whether minor differences in wording or the addition of electronic forms save a summons.
Second, how should the Tribunal deal with FOI exemption claims that are still under internal review or Ombudsman investigation at the time of the summons application? The present case involved completed reviews, but the precise stage at which the FOI process is spent remains unclear.
Third, the Tribunal directed production of the category (i) exempt documents for its own inspection. The decision does not spell out the procedural safeguards that should apply to such inspection, nor whether the applicant is entitled to see any part of those documents if the Tribunal decides they are relevant.
Finally, the precise boundary between evidence that forms part of the “res gestae” of the discrimination (allowed) and evidence that is merely contextual or post-complaint (disallowed) is left to case-by-case assessment. In complaints that involve a chain of correspondence continuing after the formal resignation date, litigants and Tribunal members will continue to debate where the line should be drawn.
Most practitioners assume that once FOI has been exhausted the only remaining route to documents is a summons. O’Sullivan shows the opposite: if the documents are still formally exempt, the summons route is closed and an attempt to use it will be labelled an abuse of process. The only residual avenue is to invite the Tribunal to inspect the withheld material itself—an invitation the Tribunal may accept, but on its own terms and without any guarantee that the applicant will ever see the documents. Another trap is the reflexive drafting of summonses “from 1 July 1999 to date”. The Tribunal will cut such requests back to the exact dates in the referred complaint, often without warning. Finally, applicants frequently overestimate the forensic value of later medical reports or board complaints; if the report was commissioned years after the events and without examining the complainant, the Tribunal is likely to regard it as irrelevant to the original discriminatory conduct. These procedural trip-wires are easy to overlook until the Tribunal applies the Moore/Patsalis filter at a directions hearing.
CITATION: O'Sullivan v Central Sydney Area Health Service [2005] NSWADT 16 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Dr Brendan O'Sullivan RESPONDENT Central Sydney Area Health Service FILE NUMBER: 031122 HEARING DATES: 08/11/2004 & 10/11/2004 SUBMISSIONS CLOSED: 11/10/2004 DATE OF DECISION: 02/04/2005
BEFORE: Grotte E - Judicial Member; Bolt M - Non Judicial Member; Nemeth de Bikal L - Non Judicial Member APPLICATION: summons - application for issue of MATTER FOR DECISION: Preliminary matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Anti-Discrimination Act 1977 Freedom of Information Act 1989 Battenburg -v- Chief Executive Officer &Secretary, Union Club [2002] NSWADT 219 (31 October 2002; C (No.2) -v- Secretary, NSW Treasury [2002] NSWADT 235; Grassby -v- The Queen (1989) 168 CLR 1 F.C. 89/042; Hunt -v- Wark (1986) 40 SASR 489; and CASES CITED: LD -v- Voltime Pty Ltd (trading as 'The Cronulla Hotel') (EOD) [2001] NSWADTAP (22 May 2001); Moore -v- Commissioner of Police, NSW Police Service & Anor [2202] NSWADT (12 June 2002); Patsalis -v- Commissioner of Police, New South Wales [2003] NSWADT 171; Pelechowski -v- The Registrar, Court of Appeal [1999] HCA 19 (6 May 1999); The Queen -v- White [1976] 13 SASR 276 APPLICANT REPRESENTATION: In person RESPONDENT A Moses, barrister ORDERS: Leave is granted to the Applicant to issue Summonses to the Respondent for Production of the following: (i) All internal memoranda or documents (including in electronic form) created by Professor Bashir, Dr Horvath, Mr Wallace, Dr Stewart, Dr Kennedy, Dr Storm and Dr Barclay in relation to the termination and/or resignation of the complainant from 1 April 2000 to 3 October 2002; and (ii) All internal memoranda or documents (including in electronic form) created by Professor Bashir, Dr Horvath, Mr Wallace, Dr Stewart, Dr Kennedy, Dr Storm and Dr Barclay in relation to complaints to the NSW Medical Board relating to the Complainant from 1 October 2002 to 3 October 2002. Leave is refused with respect to 3(iv). The Respondent is ordered to bring the documents sought in 3(i) to the Tribunal for inspection by the Tribunal on the first day of hearing. Leave is granted to the Applicant to issue summonses to give evidence to Dr Horvath and Dr Storm. Leave is refused with respect to issuing a summons to Dr Barclay.
REASONS FOR DECISION Introduction 1 On 18 October 2002 Dr Brendan O'Sullivan (the Applicant) lodged a complaint with the Anti-Discrimination Board against the Central Sydney Area Health Service (CSAHS) (the Respondent). Dr O'Sullivan alleged that he had been discriminated against during his employment with the Respondent in that he had been forced to resign at a time of documented illness. Dr O'Sullivan claimed that the Respondent sequestered over $77000 of sick leave and long service entitlements during the same period of illness. Dr O'Sullivan claimed that the acts of discrimination were committed from 4 June 2000 to 3 October 2002 when he claims that the final refusal to reconsider his ongoing appeals occurred. 2 The complaint referred to the Tribunal by the Anti Discrimination Board (ADB) concerns alleged acts of discrimination between 4 June 2000 and 3 October 2002. It is with respect to this complaint that the Tribunal has jurisdiction. This Application 3 The Applicant in these proceedings requests that leave be granted for the issue of summonses requiring the attendance of Dr Diana Glen Horvath, Dr Harold Victor Storm and Dr William Barclay at the hearing and for the issue of summonses to produce the following documents: (i) Documents 7, 8, 9, 11, 12, 18, 21, 22, 25, 26, 27, 28, 36, 37, 38, 40, 42, 43, 48, 49, 50 and 51 referred to in the Schedule of Additional Documents held by Rozelle Hospital (FOI matter) which was enclosed in the letter dated 22 October 2004 from Ms Gayle Berg of the Respondent to the Complainant; (ii) All internal memorandums (sic) or documents (including in electronic form) created by Professor Bashir, Dr Horvath, Mr Wallace, Dr Stewart, Dr Kennedy, Dr Storm and Dr Barclay in relation to the termination and/or resignation of the complainant from 1 July 1999 to 3 October 2002; (iii) All internal memoranda or documents (including in electronic form) created by Professor Bashir, Dr Horvath, Mr Wallace, Dr Stewart, Dr Kennedy, Dr Storm and Dr Barclay in relation to complaints to the NSW Medical Board relating to the complainant from 1 July 1999 to date; and (iv) All files, notes or documents provided to Dr Barclay in order to assist him in the preparation of his report concerning the complainant dated 22 April 2003. Submissions with respect to Witnesses 4 It was submitted on behalf of the Applicant that it was a matter for the Applicant and his legal representatives to exercise forensic judgment as to which witnesses he or his legal representatives choose to call in the advancement of his case. It was submitted that the witnesses required can give relevant and helpful evidence to the Tribunal in relation to the facts and circumstances the subject of these proceedings. It was submitted that the persons nominated by the Applicant for summonses to appear were key players in the events upon which Dr O'Sullivan relies to prove his allegations of unlawful discrimination. 5 It was submitted that Dr Horvath was at all material times the Chief Executive Officer of the Respondent and was primarily responsible for the manner in which Dr O'Sullivan had been treated by the CSAHS. In addition, it was submitted that Dr Horvath had made a number of serious complaints to the Medical Board concerning Dr O'Sullivan's fitness to practice medicine in respect of which malice is alleged by Dr O'Sullivan. It was submitted that Dr Horvath had extensive meetings with Professor Bashir, the former Chief Executive Officer and that Dr Horvath is pivotal and central to these proceedings. Of relevance is how Dr Horvath acted following the letter from Dr Storm and that the CSAHS continued to treat the Applicant as guilty of misconduct. It was submitted that it would be grossly unfair and a denial of natural justice to deny the Applicant the right to run his case. 6 It was submitted that Dr Storm provided most of the information to Dr Horvath in relation to the complaints to the Medical Board. It was submitted that Dr Storm lost or otherwise withheld critical medical information/documentation of and concerning Dr O'Sullivan for a period of approximately 18 months which was central to the appeal process for Dr O'Sullivan. It was submitted that Dr Storm was instrumental in arranging the report of Dr Barclay. Dr Storm also made serious allegations of misconduct on the part of Dr O'Sullivan. It was submitted that these matters were all part of the res gestae in terms of the elements of proof of unlawful discrimination against Dr O'Sullivan. In a letter dated 12 December 2001 Dr Storm made the statement that "we should respond to him (Dr O'Sullivan) as an ill colleague" to Dr Horvath. It was submitted that even though these documents came into existence after the Applicant's forced resignation these matters are connected to the earlier incidents and they still have a legitimate forensic purpose. It was submitted that although Dr O'Sullivan resigned under the threat of the matter being reported to the Independent Commission Against Corruption (ICAC) for taking a salary to which he was not entitled, the relevant correspondence continued afterwards for 2 to 3 years. 7 It was submitted that Dr Barclay produced a comprehensive medical report dated 22 April 2003 without either examining Dr O'Sullivan or even meeting him. It was submitted that there is material contained in the report which may be of probative value in these proceedings. 8 It was submitted on behalf of the Respondent that the Applicant's complaint concerns his forced resignation at the time of his documented illness and that the critical factors to the complaint appear to have occurred in 2000. Dr Horvath was not the Chief Executive Officer of the Respondent at that time. The Respondent questioned the relevance of Dr Horvath's evidence regarding the Applicant's medical condition in June 2002. Additionally, it was submitted on behalf of the Respondent that no reference was made to Dr Horvath in the Applicant's Points of Claim. It was submitted that "one can only speculate what Dr Horvath will say and in that sense it is a fishing expedition". 9 It was submitted on behalf of the Respondent that the letter from Dr Storm in which he refers to the Applicant as an "ill colleague" postdates the alleged discrimination and constructive dismissal and the Respondent questioned whether Dr Storm was able to give any relevant evidence as to the alleged acts of discrimination the subject of the complaint. 10 It was submitted that the report of Dr Barclay was prepared nearly three years after the alleged discrimination and the Respondent questioned its relevance to any alleged acts of discrimination said to have occurred in 2000. Submissions with respect to the Documents being sought 11 It was submitted on behalf of the Applicant that the documents sought have a legitimate forensic purpose in these proceedings and that the summonses should be issued. Primary reliance was placed on section 70, section 73 and 84 of the Administrative Decisions Tribunal Act 1997. The Tribunal was also referred to the ADT decision in Moore -v- Commissioner of Police, NSW Police Service & Anor [2002] NSWADT (12 June 2002) and several other Tribunal decisions being C (No.2) -v- Secretary, NSW Treasury [2002] NSWADT 235 and LD -v- Voltime Pty Ltd (trading as the Crounlla Hotel) (EOD) [2001] NSWADTAP (22 May 2001). The Tribunal was also referred to some High Court Decisions being Pelechowski -v- The Registrar, Court of Appeal [1999] HCA 19 (6 May 1999) and Grassby -v- The Queen (1989) 168 CLR 1 F.C. 89/042. 12 It was submitted that the documents summonsed are those documents which were nominated as exempt under the Freedom of Information Act 1989 (FOI Act) was submitted on behalf of the Applicant that each case must be judged on its own merits. Reliance was placed in particular on paragraph 73 of C (No.2)'s case (op.cit.) in which the Deputy President of this Tribunal stated "It cannot be the case that if documents are capable of being "produced" under the FOI Act, then a party must rely on that procedure rather then summonsing the documents. Even if the documents have been produced to a party under the FOI Act, the same documents can be the subject of a summons. The original documents are not provided under the FOI Act, and as is the case in these proceedings, there is no guarantee that the documents produced under the FOI Act are a complete copy of the documents summonsed. The FOI Act is not an alternative statutory procedure to compel the production of documents nor is it an abuse of process to summons documents when a party has access to copies of those documents under the FOI Act." Reliance was also placed on the decision of the President of this Tribunal in Patsalis -v- Commissioner of Police, New South Wales [2003] NSWADT 171 (29 May 2003). 13 It was submitted on behalf of the Respondent that the documents being sought by the Applicant are exempt documents under the Freedom of Information legislation. The Tribunal was referred to the Tribunal's decision in Patsalis' case in which the President of the Tribunal stated that "where the terms of the summons, reasonably viewed, really cover the same scope as the FOI request it seems to me that the summons must ordinarily fail". 14 In addition, it was submitted that most of the documents in dispute postdate the complaint in that most of them (with four exceptions) came into existence in 2003. 15 Counsel for the Respondent conceded that the documents being sought at item (ii) are relevant to these proceedings but that the period covered by the request being 1 July 1999 to date is onerous and outside the parameters of the complaint. It was submitted that it should cover a lesser period and it was submitted that an appropriate period would be 1 April 1999 to 3 October 2002. 16 Counsel for the Respondent questioned the relevance of the documents being sought relating to the complaints to the Medical Board and submitted that they were of no legitimate forensic purpose. 17 Counsel for the Respondent submitted that the documents sought at item (iv) are of no relevance as they fall well outside the parameters of the complaint. REASONS FOR DECISION 18 In coming to its decision the Tribunal has had regard to the particular circumstances of Dr O'Sullivan's complaint, to the parameters of the complaint as referred to the Tribunal by the ADB and to the relevant case law. 19 The Tribunal shall deal with the summonses for documents first and then to the summonses to witnesses. Documents 20 The Tribunal shall deal with each of the requested summonses set out at paragraph 3(i) to 3(iv) above separately. Documents set out at 3(i) 21 It is noted that the Applicant made an application pursuant to the Freedom of Information Act 1989 for documents held by the Respondent pertaining to his employment with the Respondent. According to a letter from the Respondent to the Applicant dated 22 October 2004 of the 137 documents identified in the original FOI request, 5 documents were partially released or made exempt. An internal review was conducted and then the Applicant appealed to the Ombudsman under section 52 of the FOI Act with respect to those exempt documents. According to that letter, following discussions with the Ombudsman, the Respondent released documents 72, 73 and 137 to the Applicant's former legal representative. On 28 May 2004 the Applicant lodged a new FOI application and as he was not satisfied with the determination, he requested an internal review of that determination. As a result of that internal review, it appears that 53 additional documents had not been previously released despite being relevant to the original FOI application. Of the 52 documents so identified 22 were considered to be exempt in accordance with Schedule 1, section 4(1)(c) of the FOI Act. According to the Respondent's letter however, the Respondent was willing to release the documents to the Applicant's former legal representative. It is these documents which the Applicant is keen to obtain and which are the subject of the summons at 3(i) of this decision. 22 The Applicant has requested that a summons be issued for these documents which have been the subject of an FOI request and which have been identified as exempt. It was submitted on behalf of the Applicant that even though these documents have been the subject of an FOI request they can still be summonsed to be produced to this Tribunal. Reliance was placed in particular on C(No.2)'s case. 23 With the greatest respect, the Tribunal is of the view that this is a misunderstanding of the relevant case law. As stated by the President of this Tribunal in Patsalis' case: …the whole point of FOI proceedings is to permit a structured environment to apply to disputes over requests by members of the community for access to official documents. The Parliament has laid down a detailed code as to the way in which those requests are to be dealt with and determined. It would put the whole FOI scheme on its head if people who had brought forward their request within an FOI framework then within the context of those very proceedings started using summonses with the same objective….Certainly where the terms of the summons, reasonably viewed, really cover the same scope as the FOI request, it seems to me that the summons must ordinarily fail. 24 C (No.2)'s case is not inconsistent with the President's decision in Patsalis' case. In that case the Deputy President said that a summons can still be issued in the Tribunal for the same documents that have been produced to a party under the FOI Act. That case did not deal with documents identified as 'exempt' under the FOI Act and were therefore not produced. 25 In the circumstances of these proceedings Dr O'Sullivan has requested documents under the FOI legislation. Some documents were produced but others were identified as exempt and it is those documents that Dr O'Sullivan is seeking. As stated above in Patsalis' case, to issue a summons for those documents would be to subvert the objectives of the FOI legislation and would be an abuse of process. Accordingly, it is the Tribunal's view that the request for a summons with respect to the documents identified in 3(i) must fail and is refused. However, given that the Respondent agreed to release those documents to the Applicant's former solicitor and that he is no longer represented by that solicitor, the Tribunal directs that those documents identified in 3(i) are to be released to the Tribunal so that the Tribunal can inspect those documents and ascertain their relevance or otherwise. Documents set out in 3(ii) 26 Summonses must have a legitimate forensic purpose and must not be for "fishing expeditions" (see Battenburg -v- Chief Executive Officer &Secretary, Union Club [2002] NSWADT 219 (31 October 2002). The Tribunal decision in Moore -v- Commissioner of Police, NSW Police Service & Anor [2002] NSWADT (12 June 2002) sets out the test in civil cases for determining whether or not a summons has a legitimate forensic purpose. In essence, the test is that the summonsing party must demonstrate that there are reasonable grounds to believe that the summonsed material would materially assist the summonsing party's case. The documents sought in 3(ii) relate to the termination and/or resignation of the complainant and appear to be relevant to these proceedings. 27 Accordingly, the Tribunal is satisfied that they have a legitimate forensic purpose. However, as the complaint referred from the ADB is limited to the period 4 June 2000 to 3 October 2002, the Tribunal is of the view that the documents produced should be limited but considers a reasonable period to be 1April 2000 to 3 October 2002. The Tribunal is therefore satisfied that a summons should be issued for documents set out in 3(ii) but limited to the period 1 April 2000 to 3 October 2002. Documents set out in 3(iii) 28 Again these documents sought appear to be relevant to these proceedings as they relate to part of the complaint by Dr O'Sullivan. The Tribunal is satisfied that the Applicant is not seeking to use the summons process as a means of obtaining documents in the hope that it may lead either to the ascertainment of witnesses or evidentiary documents (see Hunt -v- Wark (1986) 40 SASR 489; The Queen -v- White [1976] 13 SASR 276). 29 It is the Tribunal's view that a summons seeking the documents listed in 3(iii) should be issued but again limited in scope and should end on 3 October 2002. Documents set out in 3(iv) 30 According to the material before the Tribunal Dr Barclay prepared a report dated 22 April 2003 for the Respondent. In his letter to Dr Victor Storm, Dr Barclay stated that "this report is in response to your request that I review the file and prepare, on your behalf, a commentary and recommendations with respect to Dr O'Sullivan's behaviour, particularly his letter writing, with a view to making a submission to the Medical Registration Board of New South Wales concerning him". The accompanying report details the documents relied upon in the preparation of the report. The documents which form part of the brief begin around the time of the Applicant's early employment with the Respondent and end sometime in 2003. As stated above, a summons to produce documents cannot be used for the purposes of mere "fishing". There must be some reason to believe that the documents sought will be capable of being used as evidence and must be relevant to the proceedings. Furthermore, the documents sought must pertain to the complaint referred by the ADB to the Tribunal which, as stated earlier in this decision, covers the period 4 June 2000 to 3 October 2002. 31 Some of the documents sought extend beyond 3 October 2002, as indeed does the actual report prepared by Dr Barclay. In addition, the Tribunal is satisfied that some of the documents being sought would have already been produced to the Applicant pursuant to FOI and that some of the documents may have been identified as exempt. The Tribunal is of the view that to issue such a summons may amount to an abuse of process for the reasons set out in paragraph 25 above as it may inadvertently subvert the objectives of the FOI process. This summons is therefore refused. Witnesses 32 Having regard to the circumstances of this particular case, the Tribunal is satisfied that the summonses should be issued to Dr Horvath and Dr Storm to give evidence to the Tribunal. The Tribunal is satisfied that Dr Horvath as the Chief Executive Officer of the Respondent has direct and relevant knowledge of the circumstances surrounding the actions taken by the Respondent with respect to the Applicant's employment and/or resignation and the complaints to the Medical Board. The Tribunal is satisfied that Dr Horvath's evidence would materially assist it in its determination of the complaint. 33 The Tribunal is also satisfied that a summons to Dr Storm should be issued to give evidence. The Tribunal is satisfied that Dr Storm is also able to give direct and relevant evidence concerning the circumstances surrounding the Applicant's employment/resignation and the complaints to the Medical Board. The Tribunal is satisfied that Dr Strom's evidence would materially assist the Tribunal in its decision. 34 The Tribunal is not, however, satisfied that Dr Barclay would be of any assistance with respect to the complaints of discrimination made by the Applicant nor their determination by the Tribunal. Additionally, Dr Barclay was commissioned to prepare his report well outside the scope of the complaint. Orders 35 Leave is granted to the Applicant to issue Summonses to the Respondent for Production of the following: (i) All internal memoranda or documents (including in electronic form) created by Professor Bashir, Dr Horvath, Mr Wallace, Dr Stewart, Dr Kennedy, Dr Storm and Dr Barclay in relation to the termination and/or resignation of the complainant from 1 April 2000 to 3 October 2002; (ii) All internal memoranda or documents (including in electronic form) created by Professor Bashir, Dr Horvath, Mr Wallace, Dr Stewart, Dr Kennedy, Dr Storm and Dr Barclay in relation to complaints to the NSW Medical Board relating to the Complainant from 1 October 2002 to 3 October 2002. 36 Leave is refused with respect to 3(iv). 37 The Respondent is ordered to bring the documents sought in 3(i) to the Tribunal for inspection by the Tribunal on the first day of hearing. 38 Leave is granted to the Applicant to issue summonses to give evidence to Dr Horvath and Dr Storm. 39 Leave is refused with respect to issuing a summons to Dr Barclay.
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.
O'Sullivan
Central Sydney Area Health Service
(1989) 168 CLR 1
(1986) 40 SASR 489
Leave granted to issue summonses for production of internal memoranda created by named officers concerning termination/resignation (limited to 1 April 2000–3 October 2002) and concerning Medical Board complaints (limited to 1 October 2002–3 October 2002); leave refused for documents at 3(i) and 3(iv); Respondent ordered to produce documents at 3(i) to the Tribunal for inspection on the first day of hearing; leave granted for summonses to give evidence to Drs Horvath and Storm; leave refused for summons to Dr Barclay.