AF v Healthquest (No 2)

[2009] NSWADT 262

CITATION:	AF v Healthquest (No 2) [2009] NSWADT 262
DIVISION:	General Division
PARTIES:	APPLICANT AF RESPONDENT Healthquest
FILE NUMBER:	073365
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	18 September 2009
DATE OF DECISION:	9 October 2009
BEFORE:	Wilson R - Judicial Member
CATCHWORDS:	Application for summons to produce records: legitimate forensic purpose
REPRESENTATION:	APPLICANT In person RESPONDENT K Sanders, legal officer
ORDERS:	Leave is granted to the applicant to cause to be issued a summons addressed to the Australian Human Resources Institute seeking production of records in accordance with paragraphs 1 and 2 of the application for the issue of a summons filed by the applicant.

REASONS FOR DECISION

1 The substantive proceedings have been commenced by the applicant pursuant to privacy legislation, seeking redress for an alleged breach of that legislation by the respondent. An interlocutory issue has arisen concerning the issue of a summons to a third party to produce records relating to a witness who will be called at the hearing of the substantive proceedings. Leave has already been granted to the applicant to issue a summons to attend to this witness. The respondent opposes the issue of the summons to produce to the third party on the ground that the records sought are irrelevant to any issue that the Tribunal will be called upon to decide. Therefore the summons, it is argued, has no forensic purpose.

2 The applicant’s case in the substantive proceedings involves communications to the respondent and the proposed witness will be able to give evidence relevant to these communications. The records that the applicant seeks concern determinations made about the witness by the third party, who is a professional body.

3 At this stage, the Tribunal cannot determine whether any of the records are in fact relevant to any issues in the proceedings: this determination can only be properly made on the day when the applicant, or the respondent, seeks to employ the records in one way or the other. The question that needs to be addressed is whether the proposed summons has any forensic purpose.

4 The applicant argues that the records go to both the credit of the witness and to issues in the case. Clearly, in the case of any witness, credit is in issue to some extent. This can involve issues of both truthfulness and, even where a witness is truthful, whether the evidence given is reliable and accurate. One of the matters that the applicant seeks to argue is that the witness did not lawfully provide information about the applicant to the respondent and this could well involve questioning whether the witness’s evidence is reliable and accurate. Thus credit may well become a live issue: it is not a remote possibility on the materials to hand. It may well be also that the records contain material which could assist the applicant in questioning the credit of this witness.

5 Without knowing what is contained in the records it is difficult to determine whether they could in any way go to the issue, as well as to credit. However, there is the possibility that they could show some type of disposition by the witness towards conduct that is relevant to the issue. It has been said that disposition evidence may be quite persuasive as to whether a particular act was or was not done, even though this type of evidence is commonly excluded in courts of law. It is a question of weight and reliability. Should this evidence prove material and reliable, it may well be properly taken into account, given that the Tribunal is not bound by the rules of evidence. Consequently, there is a demonstrated forensic purpose on this basis as well.

6 For these reasons leave is granted to the applicant to cause to be issued a summons addressed to the Australian Human Resources Institute seeking production of records in accordance with paragraphs 1 and 2 of the application for the issue of a summons filed by the applicant.