Suryawanshi v Health Secretary in respect of the Sydney Local Health District [2025] NSWIRComm 1044

(1) Lack a legitimate forensic purpose and are not relevant to the issues in the current proceedings.

(2) Are being used as a means of determining whether a case exists or are being used as a "fishing expedition"; and

(3) Are otherwise oppressive to the Respondent.

1. In support of those contentions the Respondent relied upon:

(1) Written submissions dated 27 June 2025 (the RSUB), which were elaborated upon orally at the hearing; and

(2) An affidavit of Ms Juliette Rex, an Employee Relations Manager, employed at Sydney Local Health District, dated 20 June 2025.

1. The Applicant pressed each of the Disputed Categories, and in that connection relied upon:

(1) An Outline of Written Submissions dated 25 June 2025 (the ASUB), expanded upon orally at the hearing; and

(2) An affidavit of Layla Cachalia, the solicitor for the Applicant with day-to-day carriage of this proceeding (under supervision), affirmed on 25 June 2025, that annexed some correspondence and otherwise set out some matters of fact said by the Applicant to be relevant to the exercise of my discretion in determining the issues on the Motion.

1. There was no substantive dispute as to the principles applicable. They were conveniently summarised in the ASUB [3], and the RSUB [4] - [6]. It is unnecessary to set them out in this decision. In exercising my discretion in this matter I am conscious of my obligation to give effect to the just, quick and cheap resolution of the real issues in proceedings (see ss 56 and 57 of the Civil Procedure Act 2005), and to act in accordance with equity, good conscious and the substantial merits of the case without regard to technicalities or legal forms (s 163 of the IR Act).

1. In any unfair dismissal application, the foundational issues are whether the dismissal was harsh, unjust or unreasonable, and if so what (if any) relief ought to be granted. Broadly described, the Applicant's employment was terminated because the Respondent found he had engaged in misconduct. Relevant to consideration of the Motion, paragraph 11 of the Employer Reply to the application stated that the dismissal action was preceded by other concerning complaints and disciplinary action for similar conduct, including but not limited matters set out in paragraphs 11 (a) and 11 (b) of the Employer's Reply.
2. For the purpose of this interlocutory decision, the Applicant contends his dismissal was harsh unjust or unreasonable because:

(1) the Respondent has reached baseless findings, mischaracterised the Applicant's conduct, failed to consider the prevailing context and drawn unfounded inferences.

(2) the Respondent denied the applicant procedural fairness in the decision to terminate; and

(3) the dismissal was particularly harsh.

1. I note in support of his contention that the dismissal was harsh (and I infer, in part that reinstatement would not be impracticable), the Applicant contends he maintained exceptional performance throughout his employment and was a highly regarded practitioner; and that during the latter stages of his employment he was treated differently to his colleagues as his legitimate concerns regarding another doctor (Dr Kormas) were not properly investigated, nor were complaints made by the Applicant.
2. It is in that context that I consider the issues arising on the Motion.
3. Category 1 seeks:

"All Documents describing the Applicant's work performance and over the period 2015 to his dismissal on 27 March 2025, including, but not limited to, performance appraisals, performance reviews, performance evaluations, nominations for awards, awards, commendations, recommendations, any warnings, citations and/or any other material referencing discipline, or the prospect of discipline".

1. It light of how the issues have been argued, it is convenient to address Categories 2, 3 and 4 collectively. They respectively seek:

"All documents referencing concerns or complaints raised by the Applicant from 2021 to his dismissal on 27 March 2025 which relate to the Respondent's introduction of a "Diabetes Model of Care"

All Documents created in the period between 27 July 2023 and May 2024 referring to the concerns raised by the Applicant on 27 July 2023 via email to Mr Joseph Jewitt.

All Documents created in the period between 6 September 2023 and May 2024 recording any consideration or assessment of the complaints made by the Applicant on 6 September 2023".

"All Documents created in the period between 6 September 2023 and December 2023 recording nay interview or meeting with Ms Sue Barssom in relation to the complaint made by the Applicant on 6 September 2023"

1. After hearing from both parties and considering all of the submissions both written and oral, and Exhibits 1 and 2 on the Motion, I am satisfied that the material sought by each of the Disputed Categories do have apparent relevance to the issues, do not amount to a fishing expedition, and are not overly onerous.
2. On the question of apparent relevance, I accept what was put by Mr Mahendra of Counsel on behalf of the Applicant in respect of categories 1, and 2-4 at paragraphs 9, 11 to 12 of the ASUB. I reject the submissions of the Health Secretary to the effect that category 1 lacks legitimate forensic purpose given the facts apparently in dispute between the parties. I am satisfied that the documents do have apparent relevance.
3. Mr Mahendra articulated how the documents in each of the Disputed Categories are directed to obtaining information pertinent to issues that are already arising on the case the Applicant brings. I am satisfied none of the Disputed Categories involve a substitute for discovery (ie, seeking to ascertain whether the Applicant has a case, rather than seeking to prosecute an existing case).
4. As to the Respondent's emphasis on the Disputed Categories use of the phrase "all Documents", I observed there is nothing inherently improper in using that phrase when crafting a summons for production. The Respondent's reliance upon the breadth of categories crafted by reference to that phrase appeared connected to both its contentions with respect to "fishing" and oppression. In Contara Pty Ltd v Sydney Metro; Alogdellis v Sydney Metro [2024] NSWLEC 38, Pain J observed (at [37]):

"There is a link between relevance and 'oppression'. The more directly relevant the documents are likely to be, the more reasonable it is to impose some burden on the subpoenaed party to search for and collect documents, Southern Pacific Hotels Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710 (Southern Pacific Hotels) at 719-720 (Clarke J), Azzi v Volvo [2006] NSWSC 283 at [6] (Brereton J). The costs prejudice to a party complying with the subpoena may be mitigated, Southern Pacific Hotels at 720. There is no rule that a call for 'all documents relating or referring to ...' is oppressive, see Waddell J in Spencer at 929E‑F."

1. As noted above I am satisfied that each of the Disputed Categories seek documents that are of apparent relevance and do not amount to an improper fishing expedition. To the extent any of the Respondent's submissions assert oppression, there is essentially no evidence before me to support a conclusion that the Disputed Categories would create an unduly onerous burden. To the extent there is such evidence, it is found in the affidavit of Ms Rex. Ms Rex identifies where and how "documents" may be stored (including that documents may be located in various non-centralised locations), but little about what, if any, burden this would place on the Respondent. There is no evidence in Ms Rex's affidavit particular to category 1, and in connection with Categories 2, 3, 4 and 6 (dealt with at [9](b)(iii) and (d)), it goes little further than saying they "would also take a considerable amount of workforce resources and time in seeking and obtaining this information". That, in my view, is entirely insufficient to demonstrate the obligation imposed by the Disputed Categories, would be oppressively burdensome.
2. At most, Ms Rex evidence suggests the process may be inconvenient or unwelcome, but such considerations do not meet the threshold of oppression. In the absence of any evidence demonstrating undue burden and having regard to the apparent relevance of the material sought in each category, I am not satisfied that any of the Disputed Categories ought to be set aside.
3. It follows that the Motion in relation to the Disputed Categories must be dismissed.

(a) To the extent the Notice of Motion filed on behalf of the Health Secretary in this matter seeks to set aside Categories 1, 2, 3, 4 and 6, it is dismissed. I note the Notice of Motion is not pressed with respect to the other categories.

(b) The Health Secretary is to produce to this Commission by 9.15 am before the Registrar on 11 July 2025 categories 1, 2, 3, 4 and 6.

19 September 2025 - Amended case name to remove first name of applicant