WorkCover Authority of New South Wales (Inspector Ross Wolf) v South Eastern Sydney and Illawarra Area Health Service

LEGISLATION CITED: Occupational Health and Safety Act 2000

Springs Golf Club Limited v Profile Golf Pty Ltd & Anor [2006] NSWSC 395 (5 May 2006) CASES CITED: Azzi & Ors v Volvo [2006] NSWSC 283 (7 March 2006) Portal Software v Bodsworth [2005] NSWSC 1115 (14 October 2005)

Prosecutor: Ms P Lowson of counsel Solicitors: Moray & Agnew LEGAL REPRESENTATIVES: Defendant: Mr R Buchanan QC with Ms L McManus of counsel Solicitors: Sparke Helmore

WorkCover Authority of New South Wales (Inspector Ross Wolf) v South Eastern Sydney and Illawarra Area Health Service

Prosecution under s 8(1) of the Occupational Health & Safety Act 2000

1 The prosecutor seeks by way of two summonses for production served on the defendant the production of documentation, which it is contended is relevant to the amended application for order filed in Court on Wednesday 26 July 2006. 2 Some of the documentation sought has already been produced by the defendant. Production of the remaining documentation is resisted by the defendant on a number of grounds set out in two Notices of Motion both filed on 3 July 2006. The first notice of motion seeks orders that Items 1,7,8 and 14 of the prosecutor's summons filed on 22 May 2006 be struck out. The second notice of motion seeks orders that Items 1 and 2 of the prosecutor's summons filed on 28 June 2006 be struck out. 3 The summons filed on 22 May 2006 seeks production of the following items:

1. Legible copy of the clinical record of (DB) up to and including her admission over the period including 5 May 2003.

7. Legible copy of admission records for Eloura West for patients admitted between midday on 5 May 2003 and midday on 6 May 2003.

8. Legible copy of documents disclosing details of admissions into Eloura West between 5 May 2002 and 5 May 2003, including identity of patients and length of admission/s into Elouera West.

14. Documents disclosing details of nursing staff who worked at Eloura West between 5 May 2002 and 5 May 2003, including number of shifts worked. 4 The summons for production filed 28 June 2006 seeks production of two items:

2. Clinical record of (LC) up to and including his admission over the period 5 May 2003. 5 During the course of oral argument before the Court, the prosecutor, represented by Ms Lowson of counsel, indicated that production of Items 7, 8 and 14 in the schedule to the summons filed on 22 May 2006 was limited to information, "readily available ... (to)... understanding better the factual matrix and the processes that apply at Eloura West". By way of clarification Ms Lowson explained that the summons did not seek production of every patient file or every roster but rather information that may be available in a "single or small number of administrative type documents". 6 Production of Item 1 in the schedule to the summons filed 22 May 2006 and Item 2 in the schedule to the summons filed 28 June 2006, the Court was informed, was limited to clinical records in respect of admissions to Eloura West up to 5 May 2003. 7 This matter, a contested hearing under s 8(1) of the Occupational Health and Safety Act 2000, was set down for hearing on 26 July 2005. It is currently part-heard. According to the defendant, represented by Mr Buchanan of Queen's Counsel, it has been recently beset by a "flurry of activity" generated by the prosecutor of which the two summonses are examples. Documentation which the defendant has produced to the prosecutor has in turn been served on the defendant purportedly to form part of the brief of evidence but without any clear indication as to its relevance. 8 In addition, the defendant relied on three recent first instance decisions of the Supreme Court which have dealt with the principles governing the production of documentation sought by way of subpoenae and notices to produce. 9 In Springs Golf Club Limited v Profile Golf Pty Limited & Anor [2006] NSWSC 395 (5 May 2006), Einstein J dealt with an application to set aside a notice to produce documents or things. During the course of reasons, his Honour made the following comment:

[35] There is no automatic entitlement of a party in the position of the plaintiff in these proceedings to have the benefit of a notice to produce served upon a successful claimant in an impermissible fishing exercise: cf Associated Dominions Assurance Society Pty Ltd v John Fairfax and Sons Pty Ltd [1952] 72 WN (NSW) 250 at 254 per Owen J. The usual and principled approach to the Court's determination of an application to press for production of documents on a notice to produce [and a contradictor application to set aside the notice to produce], requires the applicant seeking to propound the notice to produce to establish some form of prima facie case extending beyond an endeavour to trawl [to discover whether there is a genuine issue to be determined between the parties giving rise to the entitlement to have the documents produced]. 10 The decision of Azzi & Ors v Volvo [2006] NSWSC 283 (7 March 2006) dealt with an application to set aside a notice to produce which had been served shortly before the commencement of a trial. Brereton J examined the circumstances in which a notice to produce may be set aside and observed:

[8] It has often been held that to serve a notice to produce, shortly before a trial, which imposes a considerable obligation and thus disruption on parties and practitioners already deeply immersed in the preparation for and conduct of the trial, may be unreasonable and vexatious [ Ritz Hotel Ltd v Charles of the Ritz Ltd (No 17) NSWSC McClellan J, 11 February 1988 unreported; Ishoe v David Sevities Pty Ltd NSWSC, Young J, 13 December 1991, unreported; cf Bidald Consulting Pty Ltd v Miles Special Builders Pty Ltd [2005] NSWSC 977]. This notice to produce is in that category. While that of itself might not be sufficient ground to set aside the subpoena, if the documents were of considerable apparent relevance, and were they documents which it was not reasonable to seek at an earlier stage it weighs in the balance when one comes to examine the question of relevance. 11 The issue of relevance at the stage of seeking production of material by way of a subpoena or a notice to produce was examined by Brereton J in Portal Software v Bodsworth [2005] NSWSC 1115 (14 October 2005) (at [20], [24] [25]):

[20] However, relevance - or more accurately, lack thereof - is now a sufficient ground for setting aside a subpoena. In Trade Practices Commissioner v Arnotts Ltd (1989) 21 FCR 306; 88 ALR 90, Beaumont J approached the setting aside of subpoenas as oppressive on a basis which reveals that absence of apparent relevance is one of two separate bases for doing so: his Honour identified that on an application to set aside a subpoena as oppressive, two questions arose: first, whether the material sought had an apparent relevance to the issues in the principal proceedings - which his Honour called "adjectival" as distinct from "substantive" relevance - and thus the subpoena had a legitimate forensic purpose to that extent; and secondly, whether the subpoena was seriously and unfairly burdensome or prejudicial. Failure to satisfy either requirement resulted in the subpoena being set aside.

[24] In White v Tulloch (1995) 127 FLR 105, (1995) 19 Fam LR 696, (1995) FLC 92-640, the Full Court of the Family Court referred to the test in terms of documents having "a sufficient apparent connection to justify their production or inspection". But perhaps the most instructive description is that of Beaumont J in Arnotts , in which his Honour said that the test of adjectival relevance was satisfied if the material had apparent relevance and was established if the documentation called for "could possibly throw light on the issues in the main case". In a slightly different but relaxed context, the test has been put in terms that a subpoena has a legitimate forensic purpose if it appears to be "on the cards" that the documents sought will materially assist the defence in a criminal proceeding [ Alister v The Queen (1984) 154 CLR 404, 414 (Gibbs CJ), R v Saleam (1989) 16 NSWLR 14, 18].

[25] Thus it is plainly not the question at this (first) stage whether the documents, production of which is sought, will definitely advance the case of the parties issuing the subpoena, nor whether they will be admissible in evidence at the trial. It is sufficient that they could "possibly throw light" on the issues in the substantive proceedings, or that it appears to be "on the cards" that they will do so. What are the issues in the proceedings will appear from the pleadings (where there are pleadings), the affidavits, and the legal principles which govern the claims for relief in the substantive proceedings. 12 With these authorities in mind, I propose to consider the prosecutor's submissions as to why production of the material sought should be granted, and, whether that material, "could possibly throw light on the issues in the main case". Clinical Records of DB and LC: Item 1 (22.05.06) and Item 2 (28.06.06) 13 According to Ms Lowson, the clinical records of DB and LC are relevant because of the characterisation of the risk of assault in the application for order, for example, in paragraph 17(a). The risk referred to in that paragraph is a general risk of assault by psychiatric patients, in particular, RA, on employees. (RA was described in the prosecution's submissions as the "focus" of the risk of assault). Ms Lowson explained that the prosecution had been unable to identify other patients in the ward besides RA. LC had been recently identified as another patient. The link between the records of DB and LC and the prosecution case is that the risk of assault to employees posed by RA arose while those employees were administering medication to other patients such as DB and LC. The anticipated evidence of the employees is that the system under which they performed their duties depended upon their knowledge and assessment of the patients, including the inter-relationship between patients, and, between patients and staff. That knowledge was, in turn, derived from the patients' care notes, as well as first hand observations and the observations of others. Part of the system of administering medicine included making an assessment as to whether a particular patient might pose a risk of assault to employees. 14 The relevance, said Ms Lowson, of DB's and LC's records is the extent to which those records might confirm an assessment that DB, for example, was a patient who presented difficulties when it came to the administering of her medication. This in turn was relevant to what system, if any, was in place that took that matter into account. Patient admission records between 5 and 6 May 2003: Item 7 (22.05.06) 15 The incident, the subject of the alleged offence, which was an actual assault on a member of staff by the patient RA, occurred about 9pm on 5 May 2003. At about the same time, according to the anticipated evidence, one nurse was off the ward and a second nurse was processing admission records. Neither were engaged in the care of patients in the ward at the time of the assault. This is relevant, according to Ms Lowson, to show the extent to which nursing staff were performing their duties in the ward at and around the time of the incident. Admissions records and staff records between 5 May 2002 and 5 May 2003: Items 8 and 14 (22.05.06) 16 Material produced in response to Items 8 and 14 of the summons filed on 22 May 2006, Ms Lowson said goes to the "factual matrix" of the work being performed at Eloura West as well as to an assessment concerning the length of stay of patients and staff, turnover of staff and the interactions of staff with patients. This "ties in" with the anticipated evidence of nursing staff concerning the management of the ward on a shift-by-shift basis. (Production of this material, Ms Lowson said, was not pressed as a requirement for every patient file or every roster, but rather in the form of a single or small number of administrative-type documents, if available.) Personnel file of Gillian Bufton: Item 1 (28.06.06) 17 According to Ms Lowson, it emerged only recently in conference with a prosecution witness that Ms Bufton, a nurse employed by the defendant at the time of this incident, "probably" had care of RA on the day of the incident. Ms Bufton's file may disclose information in the absence of other records as to Ms Bufton's response, if any, to the incident. Any response may then be assessed in the context of the prevailing system which allocated a certain number of patients in a ward to a particular nurse. RA's file does not disclose which nurse had been allocated to RA on the day of the assault. (The prosecutor has apparently been unsuccessful in locating Ms Bufton.) 18 The application of the principles relied upon in the three decisions referred to above indicate, in my opinion, a very broad approach which may be taken by a Court on the preliminary question of the relevance of certain material at the stage when production of that material is sought by a party to the proceedings. A party need only show "apparent" or "adjectival" relevance which are expressions of much wider import than considerations of what might be taken into account in relation to the test of relevance of material at the threshold level of admissibility during a hearing. 19 At this early stage of the hearing it would seem, following the submissions of Ms Lowson on the reliance which the prosecutor anticipates being able to place on the material, if produced, that that material "could possibly throw light" on a number of substantive issues, including the issue of whether an adequate system for administering medication to the Eloura West patients was in place at the time of the alleged offence, and, the movements of staff on and off the ward on 5 May 2003. 20 The Court has also been informed that the documentation sought under the two summonses has been gathered by the defendant and is available should access be granted. In addition, the proceedings will shortly be adjourned for further hearing. This gives the parties time to consult as to the precise issues in the prosecutor's case and the material upon which the prosecutor intends to rely in relation to each issue. 21 The two Notices of Motion filed on 3 July 2006 are accordingly dismissed. 22 The Court makes the following orders:

1. The two Notices of Motion filed by the defendant on 3 July 2006 are dismissed.

2. No order as to costs.

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