Smith v Secretary, Regional NSW on behalf of Greater Sydney Local Land Services

Summons

1. The Motion seeks 5 orders.
2. Items 1 and 2 of the Motion concern a referral to a medical practitioner. These items have been resolved and are no longer in dispute between the parties.
3. Item 3 of the Motion relates to the filing of evidence in the substantive matter before the Commission. Whilst they cannot be filed as part of these Motion proceedings, it is a matter for which the applicant would require leave or to tender as evidence at the hearing after giving prior notice to the respondent of the intention to do so.
4. Item 4 of the Motion refers to an outstanding document in the summons to produce dated 18 February 2022. This document has been produced and is marked as Packet 'S12'. General access has been granted.
5. I turn my attention to Item 5 of the Motion which to seeks to set aside ten summonses for production issued by the respondent and addressed to hospitals, clinics and doctors. Those summonses are dated from 3 to 9 March 2022.
6. In relation to the summonses dated 3 March 2022, documents were not produced for the following:

• Item 5(ii) Wesley Hospital Ashfield
• Item 5(iii) The Hills Private Hospital, and
• Item 5(iv) Ramsay Clinic Northside.
• Item 5(vi) Dr Jenna Bollinger, a letter was produced stating there were no documents to produce is marked as Packet "S6".

1. In relation to the summonses dated 3 March 2022, documents were produced for the following:

• Item 5(i) Patricia Smith, marked as Packet "S10",
• Item 5(v) Jessica Stanford, marked as Packet "S5",
• Item 5(vii) Dr Angela Dangas, marked as Packet "S11", and
• Item 5(viii) Dr Catherine Bailey, marked as Packet "S8".

1. In relation to the summonses dated 7 March 2022, documents were produced for the following:

• Item 5(ix) The Hills Clinic, marked as Packet "S9".

1. In relation to the summonses dated 9 March 2022, documents were produced for the following:

• Item 5(x) Southern Cross Pathology, marked as Packet "S7".

1. The respondent groups the summonses they have issued into 'Hospital/Clinic Summonses' and 'Doctors' Summonses'. They submit that item 5 of the Motion should be set aside and that the Commission should grant an order for general access to be made in respect of the documents produced under the summons.
2. The respondent submits the assessment of the applicant's fitness for a job depends upon making an assessment as to the applicant's capacity to perform the role. They say this assessment would be informed by the expert medical evidence with reference to the applicant's medical history.
3. The respondent claims that "it's absolutely on the cards" and there's a legitimate forensic purpose in requesting the production of clinical notes and medical history because the information contained in those will be relevant in determining whether the applicant is fit for employment. Mr Seck referred to the dispute between the parties as to whether or not the reasons for the applicant's dismissal were related to an injury arising in the course of her employment or whether it had no relationship to her employment.
4. Regarding the applicant's claim for professional relationship privilege, the respondent submits that this is a matter for the Commissioner to determine at the point of whether or not it should be admitted into evidence, citing Director-General Department of Community Services v D [2006] NSWSC 827.
5. In response to my question of consent to granting the applicant first access to the documents, Counsel ultimately proposed that any confidentiality issues be dealt with before the Commissioner.
6. The applicant submitted that the documents subject to the summons to produce dated back four years rather than the two and a half years claimed by the respondent. Based on the submissions before me I accept that the longer period applies.
7. The applicant argued that the respondent had not made out their case with respect to the documents sought materially assisting their case. She further highlighted the importance of confidentiality and noted that the disclosure of documents may cause her harm. I am mindful of this submission.

Principles

1. The principles surrounding applications to set aside summons to produce under the Industrial Relations Act 1996 (NSW) are well established. The Commission is guided by its own precedents but also those established by Superior Courts.

Relevance and legitimate forensic purpose

1. The respondent claims that the documents sought are relevant and serve a legitimate forensic purpose providing comprehensive reasons in their written submissions.
2. The applicant argues there is no reasonable basis to establish a legitimate forensic purpose.
3. It is my view the test of relevance should now be considered through the broader test of whether the documents can throw light on an issue in the proceedings. I refer to the decision of the Court of Appeal in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145, which is addressed by Brereton JA below 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. In my decision accordingly I consider that the documents sought in the summons to produce may serve to shed light on the issues to be determined in the proceedings…
4. In their submissions the parties refer to the presumption in Section 244(1) Workers Compensation Act 1987. I consider these only as they relate to relevance, not as they relate to the substantive matter.

Professional relationship privilege

1. The applicant seeks protection through professional relationship privilege and the utmost confidentiality of her medical records. Whilst this privilege exists under the Evidence Act NSW 1995 the respondent's reference to Section 163 (1)(b) of the Industrial Relations Act 1996 is pertinent: 163 Rules of evidence and legal formality (1) 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 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.
2. I have considered the parties submissions in this matter and have taken into account the relevant caselaw.
3. Due to the sensitive and personal nature of the medical documents provided in satisfaction of the summons to produce, I consider it only fair and reasonable that the applicant is granted first access to the documents and that after seven days the respondent is granted access subject to conditions limiting access.

Orders

1. I reject the Motion to set aside.
2. I grant first access for seven days to the applicant Ms Smith to the Packets marked "S5" to "S11". From 23 May 2022, access is then granted to all parties as provided for in this decision, subject to the following limitations: 1. Only three nominated legal representatives including counsel are provided access; 2. Only two of the employers are granted access to these documents, and 3. That they are kept confidential subject to use for these proceedings and then securely destroyed. ELIZABETH ROBINSON INDUSTRIAL REGISTRAR

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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: 16 May 2022