Bird v Secretary, Department of Education
[2021] NSWPIC 220
•30 June 2021
| DECISION OF PRESIDENT’S DELEGATE | |
| CITATION: | Bird v Secretary, Department of Education [2021] NSWPIC 220 |
| CLAIMANT: | Maureen Bird |
| DEFENDANT: | Secretary, Department of Education |
| PRESIDENT’S DELEGATE: | Parnel McAdam |
| DATE OF DECISION: | 30 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claimant lodged a Direction for Access to Information and Premises; the defendant lodged an objection to the Direction, specifically objecting to items 3,4 and 6; defendant submissions in the objection were brief to the point of absence; claimant conceded item 3 sought and provided comprehensive submissions in relation to items 4 and 6; Held- by consent item 3 of the Direction is set aside; other documents sought have an apparent relevance; defendant’s submissions did not sufficiently explain how they would not be relevant to the issues or why seeking them constitutes ‘fishing’; unclear how the documents would be subject of the Privacy and Personal Information Protection Act 1998; decline to set aside items 4 and 6 of the Direction. |
| ORDERS MADE: | 1. By reason of the consent of the claimant, Item 3 of the Direction is set aside. 2. I decline to set aside Items 4 and 6 of the Direction. |
Background
- On 13 April 2021, the claimant lodged a Direction for Access to Information and Premises in the Commission. That Direction sought the production of the following categories of documents from the defendant:
1. A copy of this Direction;
2. Personnel File of Maureen Bird;
3. Personnel File of Deanie Nicholls;
4. A copy of all complaints made against Deanie Nicholls from 1 July 2007 to 5 May 2015, made by Trisha Grace, Harmonie Husband, Anne Plunkett, Karen Gentle, Jacquie Orr, Diane Macra and Maureen Bird.
5. A copy of all complaints made by Maureen Bird to Deanie Nicholls on 06.03.2014, 22.05.2014 and 27.05.2014;
6. A copy of the minutes from staff meetings held at Nana Glenn Public School on 06.03.2014, 26.06.2014 and 17.07.2014;
7. A copy of the complaints / notifications of injury made by Maureen Bird to the Employee Injury Helpline on or around 17.07.2014;
8. All policies relating to the reporting of and management of bullying and harassment in the workplace implemented by the Defendant as at 1 January 2013 to 5 March 2015.
On 11 May 2021, the defendant lodged an objection to the Direction in the Commission, specifically objecting to items 3, 4 and 6 of the Direction. The claimant responded to that objection on 24 May 2021. The claimant does not press the documents sought in item 3 of the Direction, and accordingly an order will be made amending the Direction to reflect the claimant’s concession.
Jurisdictional background
The defendant has made broad assertions regarding to the categories of documents sought by the claimant without reference to any relevant authorities on point.
My understanding of the functions of the President in determining a dispute about a Direction for Access, which is akin to a subpoena, is set out in brief below.
The Commission’s jurisdiction, and role, under section 318I of the 1998 Act, is in essence a preliminary one. The Commission, as a statutory tribunal, has no inherent powers. It is guided by the objectives of the PIC Act and the workers compensation legislation in respect of work injury damages claims, including relevantly the early access to, and exchange of, information, so as to facilitate early resolution of claims without recourse to proceedings in a court of competent jurisdiction. Substantive issues relating to the relevance, admissibility, and weight of evidence produced pursuant to section 318I of the 1998 Act are considered by a court of competent jurisdiction.
The relevant principles that apply to a subpoena for production generally apply to the Direction as sought by the claimant. However, given the limited powers of the Commission under section 318I, and in the context of those powers being preliminary to proceedings in a court of competent jurisdiction, the Direction should be treated more liberally than a subpoena, particularly as they are directed between the parties and do not involve a third:
“A notice to produce is addressed to a party, unlike a subpoena to a stranger. Traditionally, subpoenas to parties have been treated somewhat more liberally than subpoenas to strangers, and the same follows in respect of a notice to produce.” (Portal Software v Bodsworth [2005] NSWSC 1115 at [26]).
The purpose of requiring production of documents was outlined in Waind v Hill and National Employers’ Mutual General Association Ltd (1978) 1 NSWLR 372 (Waind):
“The only legitimate purpose of requiring the production, and permitting the inspection, of a stranger’s documents can be to add, in the end, to the relevant evidence in the case.” (at 384E)
Although referring to a stranger’s documents, the same may be applied to a direction inter partes. There are three stages in determining whether it is appropriate to enforce compliance with the Direction, per Waind:
“The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise. It is the third step which alone provides material upon which ultimate decision in the case rests. In these three steps the stranger and the parties have different rights, and the function of the judge differs.” (at 381E)
The Commission’s preliminary jurisdiction largely concerns the first stage in Waind.
Finding and reasons
The defendant’s submissions in the objection are brief to the point of absence. They are more akin to headings of objection rather than actual submissions. I find this curious, particularly noting the defendant is a model litigant.
The claimant, to her credit, has conceded one of the items sought and has provided comprehensive submissions in relation to the other two items, which are pressed.
I will consider each item that is pressed by the claimant in turn.
Item 4 - A copy of all complaints made against Deanie Nicholls from 1 July 2007 to 5 May 2015, made by Trisha Grace, Harmonie Husband, Anne Plunkett, Karen Gentle, Jacquie Orr, Diane Macra and Maureen Bird
The defendant submits that:
(a)the documents sought are not relevant to the facts in issue;
(b)the request constitutes a fishing expedition, and
(c)there are privacy concerns and “could” contravene the defendant’s obligations under the Privacy and Personal Information Protection Act 1998 (the PPIP Act).
In respect of the first submission, this is not the appropriate test. The test for a subpoena is apparent relevance. Apparent relevance in relation to a Direction is a lower standard than the standard of relevance required to justify admission into evidence (Matthews v SPI Electricity & Ors (Ruling No 27) [2013] VSC 483).
The claimant has explained in detail why the documents are relevant to a fact in issue in the proceedings. The claimant alleges that she suffered an injury as a result of bullying and harassment by the principal of Nana Glenn Public School, Deanie Nicholls. In my view, this is prima facie apparent relevance for the documents sought by the claimant.
The claimant goes on to submit that the prior complaints regarding the conduct of Ms Nicholls speaks to foreseeability and tendency of Ms Nicholls to harass other employees. This clearly has an apparent relevance to the issue of negligence, which, as the claimant points out, unless is conceded, is an issue in dispute between the parties.
To the extent that the request is a “fishing expedition”, the defendant’s submissions do not explain how or attempt to elucidate what that rather esoteric term means in the context of the present dispute. The comments in Automotive Dealer Administration Services Pty Ltd v Kulik & Ors [2010] VSC 293 concerning what is a “fishing expedition” paint a picture of the defendant’s submissions as well as what is meant by the term:
“That term is so frequently used that it tends to be forgotten that it means making enquiries of something not pleaded in the hope that it can then be alleged.” (at [21])
Commissioner for Railways v Small (1938) 38 SR (NSW) 564 states the following about “fishing”:
“A party is no more entitled to use a subpoena duces tucem than he is a summons for interrogatories, for the purpose of ‘fishing’, i.e., endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all.” (at 575)
I am not satisfied that the documents are a “fishing expedition” on behalf of the claimant. The claimant has provided a clear explanation as to why the documents have been sought. The defendant has failed to explain why the documents constitute a “fishing expedition”. It is clear that the documents are not for the purpose of determining whether the claimant has a case; the documents are to relevant an aspect of the dispute between the parties. As the claimant points out, she has been quite particular in the documents sought, relating them to specific employees, based on the claimant’s knowledge of previous issues with Deanie Nicholls.
Were the claimant to have sought documents relating to “any complaint made by any person regarding the conduct of Deanie Nicholls”, for example, the defendant may have a more relevant claim that the Direction should be set aside (more likely on the basis that it is too broad, rather than any basis as currently alleged by the defendant). However, the claimant has been quite specific in their approach to this matter.
The defendant has also raised “privacy concerns” that “could” be a breach of the defendant’s statutory obligations. In response, the claimant suggests that private information can be redacted.
Whilst it is apparent that the documents contained may include private information, concepts of privacy and confidentiality are not reasons of themselves to set aside a Direction. A loss of privacy is often an unfortunate but necessary consequence of litigation and to ensure a fair trial (King v Australian Pharmaceutical Industries Ltd [2011] FCA 95). The loss of privacy must be tolerated in the interests of justice, but is to be a factor taken into consideration in granting access (Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290 at [73]).
The defendant has not explicitly stated how the production of the documents would breach the PPIP Act, but only suggested that they “could”. A supposition is not sufficient to set aside the Direction, in circumstances where the documents have an apparent relevance to the issues in dispute and the claimant has suggested that an appropriate step would be to redact private information.
Accordingly, I am not satisfied that Item 4 of the Direction should be set aside.
Item 6 - A copy of the minutes from staff meetings held at Nana Glenn Public School on 06.03.2014, 26.06.2014 and 17.07.2014
The defendant has not provided specific submissions regarding this item of the Direction, but rather relies on the same submissions as set out at [14].
In response, the claimant submits that it is alleged that she was exposed to bullying and harassing behaviour in the course of meetings that occurred on the three dates listed above, and the minutes of those meetings are clearly relevant to the issues in this matter. They will assist both parties to understand the factual issues, including the circumstances under which the claimant alleges she was bullied.
It is clear that the documents have an apparent relevance. The defendant’s submissions do not sufficiently explain how they would not be relevant to the issues or why seeking them constitutes “fishing”. As the claimant points out, it is unclear how these documents would be subject of the PPIP Act, and in any event, concedes that any personal information can be redacted.
For the same reasons as related to Item 4, I decline to set aside Item 6 of the Direction.
Conclusion
By reason of the consent of the claimant, Item 3 of the Direction is set aside.
I decline to set aside Items 4 and 6 of the Direction.
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