Davis v Metro North Hospital and Health Service
[2018] QCAT 8
•19 January 2018
CITATION: | Davis v Metro North Hospital and Health Service & Ors [2018] QCAT 8 |
PARTIES: | Christopher Davis |
| v | |
| Metro North Hospital and Health Service (Respondents) | |
APPLICATION NUMBER: | ADL010-16 |
MATTER TYPE: | Anti-discrimination matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Paratz |
DELIVERED ON: | 19 January 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. It is ordered that the Metro North Hospital and Health Service, Donna O’Sullivan and Kerry Mahon produce to Dr Davis the following documents, which are in their power or possession, within 30 days of receipt of this Order: (a) Documents, including file notes, emails and other correspondence, relating to Mr Stamp’s compliance with clinical streaming requirements in the recruitment of people to permanent SMO positions (both part-time and full-time) during the period from 1 August 2014 to 8 September 2014. (b) The recruitment files for all permanent SMO positions (both part-time and full-time) in the Metro North Hospital and Health Service for which the approval of Ms Mahon and her predecessor, Mr Stamp, was sought during the period from 1 August 2014 to 31 October 2014. |
CATCHWORDS: | EVIDENCE – ADDUCING EVIDENCE – DOCUMENTS – REQUESTS TO PRODUCE – where documents relating to the process of appointment for an employment position were sought to be produced – where the relevance of documents was considered – whether the documents were broad and imprecise – whether production would be oppressive Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 62(3), 63(1) Campaigntrack Victoria Pty Ltd v Gary William Gannon & Ors [2016] QCAT 272 |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Dr Davis filed an Application for Miscellaneous Matters in the Tribunal on 12 October 2017 seeking production of documents. The documents were set out in a table attached to the Application.
The initial table of documents was 14 pages, and sought 14 groups of documents.
Metro North Hospital and Health Service (‘the Hospital’) filed submissions in response on 26 October 2017. Dr Davis then filed submissions in reply on 14 November 2017.
The effect of the submissions of the Hospital was to indicate in relation to many of the items that ‘Notwithstanding reasonable searches and enquiries, no such documents exist’.
The Tribunal gave Directions on 29 November 2017 for Dr Davis to file a schedule setting out the documents which he sought production of, in light of his submissions in reply by 4:00pm on 6 December 2017.
Directions were also given by the Tribunal on 29 November 2017 as to hearing of the application for production as follows:
2) The application for miscellaneous matters for production of documents will be determined by the Tribunal on the papers, without an oral hearing, on the basis that the documents of which production is sought, are those set out in the Schedule to be filed in accordance with Direction 2 herein, and without further submissions, not before 4:00pm on 6 December 2017.
Dr Davis filed a schedule on 5 December 2017 indicating that he now only sought production of Groups 8 and 14 from the initial schedule, and relied on his previous submissions in those respects.
The documents now being sought to be produced are as follows:
8. Documents, including files notes, emails and other correspondence, relating to Ms Mahon’s and her predecessor’s (Mr Stamp) compliance with clinical streaming requirements in the recruitment of people to permanent SMO positions during the period from August 2014 to October 2014.
14. The recruitment files for all permanent SMO positions in MNHHS for which the approval of Ms Mahon and her predecessor, Mr Stamp, was sought during the period from 1 August 2014 to 31 October 2014.
These are the Reasons for the determination on the papers of the application for production.
Section 62(3) of the QCAT Act provides that the Tribunal may give a direction requiring a party to the proceeding to produce a document or another thing, or provide information to the tribunal, or to another party to the proceeding.
Section 63(1) of the QCAT Act provides as to disclosure of material from third parties and more completely describes the basis for making such an order:
63 Obtaining a document or thing from third parties
(1) The tribunal may make an order requiring a person who is not a party to a proceeding but who has, or is likely to have, in the person’s possession or control a document or other thing relevant to the proceeding to produce the document or thing to –
(a) the tribunal; or
(b) a party to the proceeding.
As I noted in Jebral Nominees Pty Ltd v The Chief Executive, Department of Justice and Attorney-General and others,[1] the expression in s 63(1) “who has, or is likely to have” is instructive, and assists in interpreting the requirements for production by a party to another party. I consider that the expression is similarly applicable to consideration of applications under s 62(3).
[1][2016] QCAT 118, [36].
The effect of these provisions is that the Tribunal will order a party to produce documents to another party where it can be shown that there are documents which are, or are likely to be, in the party’s possession or control, and are relevant to the proceedings.
I discussed the principles in relation to production of documents in Cannon & Anor v Saunders[2] as follows:
[2][2017] QCATA 4.
[27] It is well established that documents will only be directed to be produced where they are described with particularity, and have demonstrated direct relevance to the issues in dispute. Parties are not allowed to use disclosure applications to engage in ‘fishing expeditions’ to seek to obtain possible evidence.
[28] The relevant factors in considering an application for production of documents in the Tribunal was considered in Gogolka and Anor v Queensland Building Services Authority.[3] That matter involved production by a third party, but similar considerations apply between parties. The Queensland Supreme Court decision in Uthmann v Ipswich City Council[4] was applied, where Lee J summarised the principles as follows:
[3][2012] QCAT 308.
[4][1998] 1 Qd R 435.
“It is not possible to lay down a procedure or guidelines for all cases as Miss Osborne submitted. Various requirements were outlined in Lebon v. Lake Placid Resort Pty Ltd[5] and in other authorities therein referred to. However, from this case the following general principles have emerged:
[5][1995] 1 Qd R 24.
(1) The procedure cannot be used if its only purpose is to engage in a purely fishing expedition.
(2) Documents sought must be shown by the issuer of the writ to probably relate to a matter in question in the cause. This “matter” is usually demonstrated by the pleadings and/or particulars but may in some cases be shown in some other way.
(3) The issuer of a writ must demand production only of specific documents which would be the subject of a subpoena duces tecum at the trial, which he can show are probably in the possession or control of the third party and which probably relate to a matter in question in the cause. If this is not done, the issuer of the writ may be at risk as to costs if an application is brought to the Court by either party.
(4) The issuer of the writ must formally give sufficient information in writing to enable the third party to make an informed decision. If this is not done, the issuer of the writ may again be at risk as to costs if an application is brought to the Court.
(5) The third party must independently be satisfied that the documents relate to a matter in question in the cause, before they are produced.
(6) If the third party produces demanded documents which relate to a matter in question in the cause, the third party is probably protected although this should be clarified by amendment.
(7) If the third party is of the view that the documents do not relate to a matter in question in the cause or if there is a doubt in relation to it or if there is any other proper basis for objection to produce the documents whether on the ground of privilege or on a discretionary basis or otherwise, the third party should prudently apply to the Court for an order.
(8) The Court has a discretion whether or not to order production or the extent of it, but if the rules are complied with, an order for production will usually be made having regard to the purpose of the procedure which is to assist the administration of justice by minimising costs and facilitating the disclosure of information which would advance fair determination of the issue as early as possible: O’Sullivan v Herdmans Ltd [1987] 1 W.L.R. 1047 at 1055–6; Ansett Transport Industries Ltd v. The Commonwealth;[6] Lebon v. Lake Placid Resort Pty Ltd at 28. If production is ordered, the Court may impose conditions and require undertakings to meet the individual circumstances.
(9) If the person who issues the writ is permitted to adduce further evidence at the hearing in order to sustain the order sought, and the third party has no prior notice of it, this may be relevant to the question of costs of the application.
(10) There is no reason why before any application is brought to the Court, there should not be dialogue between the third party and the person who issues the writ for clarification or to state grounds of objection. The person who issues the writ may then satisfy the third party in writing, or might desist if the objections raised are accepted.”
[6]No. 268 of 1987; Supreme Court of Victoria, Marks J., unreported, 3 April 1987 — Civil Procedure of Victoria, Williams, Vol. 3 [16002].
The Tribunal has broad discretion in relation to s 62(3), as noted in Campaigntrack Victoria Pty Ltd v Gary William Gannon & Ors[7] where Senior Member Brown adopted my comments in Cannon, and noted that:
[21] Section 62(3) of the QCAT Act is expressed in quite different terms to rule 211(1) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”). Disclosure is an express obligation under the UCPR. There is no such obligation under the QCAT Act. The Tribunal may exercise a discretion to order a party to disclose specified documents. The obligation to disclose under the UCPR is limited to documents in the possession or under the control of a party to a proceeding and which are directly relevant to an allegation in issue in the pleadings and, if there are no pleadings, directly relevant to a matter in issue in the proceeding. The discretion to order disclosure of documents is not circumscribed by s 62(3) of the QCAT Act. The exercise of the discretion to order disclosure must however be exercised judicially and consistent with the context in which the statutory power is found and the objects of the QCAT Act.
[7][2016] QCAT 272.
I will discuss each group separately, having regard to these principles.
Group 8
This group relates to documents relating to Ms Mahon’s and Mr Stamp’s compliance with clinical streaming requirements in the recruitment of people to permanent SMO positions during the period from August 2014 to October 2014.
It will be convenient for me to set out the various submissions in full.[8]
[8]Applicant’s Submissions in Reply filed 14 November 2017, 13-15. The table in these submissions provides the Applicant’s initial submissions, the Respondent’s submissions in response, and the Applicant’s submissions in reply.
The initial submission of Dr Davis was as follows:[9]
This request is relevant to the treatment of the Applicant’s application for employment in the SMO position advertised. It is relevant to view the treatment of applications in respect of candidates for similar roles within MNHHS to see whether clinical streaming was taken into consideration when assessing their applications.
Ms Mahon also statements [sic] at [50] that she ‘would have conducted the same enquiries in respect of any recruitment process for a position I was required to approve, to ensure compliance with the clinical streaming model.’
The Respondents must have such documents, as they are required to maintain files with respect to the employment of individuals within the MNHHS system.
Such a request for production is not oppressive or onerous as the request is limited to the closed period from August 2014 to October 2014 and to SMO positions specifically.
[9]Applicant’s submissions filed 12 October 2017, 8-9.
The Hospital responded as follows:[10]
The respondents’ [sic] object to the request for documents relating to Mr Stamp’s compliance with clinical streaming requirements in the recruitment of people to SMO positions, which presumably is for the period from August 2014 to 8 September 2014, when he ceased performing the role of Chief Executive, on the ground that it is not relevant to a matter in issue in the proceeding. The decision maker in respect of the subject decision was Ms Mahon. No allegation is made in respect of any compliance or non-compliance with clinical streaming by Mr Stamp. Any other decisions by other incumbents in the position of Chief Executive will not have been made in circumstances that are the same or not materially different as they were made by another person.
Notwithstanding reasonable searches and enquiries, the only documents that have been located relating to Ms Mahon’s compliance with clinical streaming requirements in the recruitment of people to SMO positions during the period from 8 September 2014 (when she commenced acting as Chief Executive) and October 2014 are KM-13 and KM-17.
[10]Respondents’ submissions in response filed 26 October 2017, 8-9.
Dr Davis replied as follows:
The Applicant notes that the Respondents object to [the] production of documents relating to Mr Stamp’s compliance with clinical streaming requirements in the recruitment of people to SMO positions during the period from August 2014 to October 2014 on the ground that it is not relevant to a matter in issue in the proceeding.
In the Applicant’s submission, this is not correct.
Firstly, the Respondents rely on the application of the clinical streaming model as the justification for not proceeding with the recruitment process for the SMO position applied for by the Applicant (see, for example, paragraph 59 of the Respondents’ Contentions). The approach taken to other SMO positions during the relevant period, including by Ms Mahon’s predecessor, is relevant as it demonstrates whether in fact it was the case that other similar positions were considered in light of clinical streaming requirements.
If other SMO positions during the relevant period were not considered in light of clinical streaming requirements, that is relevant to whether the treatment of the Applicant was different to others in situations not materially different from the Applicant.
It is submitted that it is irrelevant whether the decision-maker was different, particularly in circumstances where it is alleged that the clinical streaming consideration was to be adopted across the MNHHS (see, for example, paragraph 56 of the Respondents’ Contentions). The Respondents’ objection cannot, therefore, succeed.
In order to limit the scope of the request, however, the Applicant is prepared to seek only documents relating to the recruitment of people to permanent SMO positions.
The Applicant maintains his application for the documents sought.
The Hospital has advised that the only documents of this type which have been located are KM-13 and KM-17. These are documents which are already in evidence and are annexed to the Statement of Kerrie Mahon filed on 17 February 2017.
An order for production will only be made as to identified documents that are reasonably believed to exist. In light of the advice of the Hospital that no further such documents can be located, no order for production can be made in respect of Ms Mahon.
The situation as to Mr Stamp is more complex. The Hospital has not advised whether it has searched for documents of this type made in respect of Mr Stamp. It is possible that such documents do exist.
Should any documents of this description made in respect of Mr Stamp be produced? The Hospital submit that such documents are not relevant to a matter in issue in the proceeding. Dr Davis submits that the documents would be relevant as they relate to the clinical streaming model upon which the Hospital relies to justify its actions.
The Respondents’ contentions were filed on 5 September 2016.
The Respondents’ contentions refer to the ‘Request to Fill’ and the ‘Rationale in support of the Request’ which were prepared in June 2014 in relation to the vacant 0.5 FTE [Full-Time Equivalent] Staff Specialist Geriatric Medicine position (the SMO position).[11]
[11]Respondents’ Contentions filed 5 September 2016, [8(a)].
The application of ‘clinical streaming’ to the SMO position was described as follows:[12]
(e) the Request and the Rationale were prepared and approved with no or insufficient regard to the First Respondent’s reformed model of clinical service delivery to patients (clinical streaming) that was in the process of being implemented by the First Respondent;
(f) the purpose of clinical streaming was to ensure that the First Respondent operated as a single entity with clinical resources distributed equitably across the HS [Hospital and Health Service];
(g) through nine whole-of-service medical streams (including Medicine, Cancer Care, Oral Health, Critical Care, Medical Imaging, Surgery, Women and Children, Mental Health and Cardiothoracics), it was intended under clinical streaming that workforce plans would be introduced across the HS [Hospital and Health Service] to take into account the entire organisation’s clinical workforce needs;
(h) recruitment processes undertaken within the First Respondent under clinical streaming were to reflect the workforce needs across the whole HS [Hospital and Health Service] rather than only those specific to a particular facility;
[12]Ibid, [8(e)]–[(h)].
The Respondents’ Contentions note as to the date of introduction of clinical streaming that:[13]
(ix) on 20 June 2014, the then CE [Chief Executive] of the First Respondent circulated the Reform to all staff employed by the First Respondent and advised that the organisational structure to support clinical stream functionality, management and governance was expected to take effect in August 2014;
[13]Ibid, [56(ix)].
Mr Stamp is said to have ‘unexpectedly ceased’ as the Chief Executive of the First Respondent on 8 September 2014,[14] and Ms Mahon was appointed to act in his position.
[14]Ibid, [30(a)] and [30(b)].
The importance of this timeline is that the request to fill the SMO position was made in June 2014 when Mr Stamp was the Chief Executive, and the contentions are that the introduction of clinical streaming was foreshadowed at the time of the request, and was in effect from August 2014, when Mr Stamp was still the Chief Executive.
The Respondents contend that the failure to apply clinical streaming to the SMO position led directly to the withdrawal of the SMO position:[15]
(b) with the introduction of clinical streaming, it was intended that the needs across the whole HS [Hospital and Health Service] would be considered prior to approval being sought and given to advertise a clinical position;
(c) in the premises, the introduction of clinical streaming did not require the withdrawal of a recruitment and selection process for a vacant position within the First Respondent that had considered needs across the whole health service; and
(d) withdrawal was only required where, as in the present case, clinical streaming had not already been considered.
[15]Ibid, [58(b)]-[58(d)].
This means that Mr Stamp was expected to have implemented the practice of clinical streaming in relation to this position from August 2014 and thereafter. Any documents made in respect of Mr Stamp in relation to clinical streaming after August 2014 until his cessation on 8 September 2014 are therefore directly applicable and relevant to consideration of the appointment process.
Consideration of the Referral from the Anti-Discrimination Commission Queensland requires examination of the appointment process of the SMO positions.
I therefore consider that any documents made in respect of Mr Stamp’s compliance with clinical streaming requirements in recruitment of people to permanent SMO positions for the applicable period are relevant, and I will order production of those documents for the period from 1 August 2014 until his cessation on 8 September 2014.
Group 14
This group relates to the recruitment files for all permanent SMO positions in MNHHS for which the approval of Ms Mahon and her predecessor, Mr Stamp, was sought during the period from 1 August 2014 to 31 October 2014.
It is convenient to also set out these submissions in full.[16]
[16]Submissions in reply filed 14 November 2017, 22.
The initial submission of Dr Davis was as follows:[17]
The recruitment files for other SMO positions held in MNHHS are relevant to whether the Applicant received treatment that was different to others in comparable circumstances.
In particular, the Respondents assert that it was the need for clinical streaming considerations to be taken into account, and not the Applicant’s political activity, that led to the SMO position for which he applied being withdrawn.
[17]Applicant’s submissions filed 12 October 2017, 13-14.
The Hospital responded as to the particular request as follows:[18]
[18]Respondents’ submissions in response filed 26 October 2017, 15-17.
The respondents object to the request for the recruitment files for all SMO positions in MNHHS for which the approval of Ms Mahon and her predecessor, Mr Stamp, was sought during the period from 1 August 2014 to 31 October 2014 as the request is too broad, imprecise and oppressive and the request is not relevant to a matter in issue in the proceeding as it does not specify whether it relates to:
(i) permanent full time positions;
(ii) permanent part time positions;
(iii) permanent full time or part time positions;
(iv) temporary full time positions;
(v) temporary part time positions; and
(vi) a newly created position or an existing position.
The number of temporary positions advertised and the fate of the recruitment processes for those positions bears no relevance to the recruitment process for the Position. They are not comparators for the purposes of s. 10 of the Anti-Discrimination Act 1991 as the circumstances are not the same and are materially different.
Further, the request insofar as it relates to Mr Stamp is not relevant to a matter in issue in the proceeding as the decision maker in respect of the subject decision was Ms Mahon. Any other ‘approvals’ by other incumbents in the position of Chief Executive will not have been made in circumstances that are the same or not materially different as they were made by another person. Additionally, no complaint is made about any approval sought of Mr Stamp.
As to the second request for documents relating to the re-evaluation of all vacant SMO positions, notwithstanding reasonable searches and enquiries, no documents have been located.
Dr Davis replied as follows:
The Applicant maintains that the application made for production of documents is limited and in scope and is not oppressive.
However, in order to put the matter beyond question, the Applicant is prepared to further limit the scope of the request to permanent SMO positions only.
This is because the position that [the] Applicant applied for a 0.5 FTE SMO position, which it is submitted was a permanent position. The Applicant submits that permanent positions (whether full time or part time) are comparable, particularly given that from an administrative point of view the professional roles are the same or not materially different (but for the reduced hours in the case of a permanent part time role).
In terms of this revised limited scope, it is submitted that the Respondents ought not to have any objection, particularly given that they are seeking to rely on evidence to the effect that “all vacant positions are being re-evaluated” as a result of the establishment of clinical streams (see the Statement of Catherine Mason at [77]).
It is submitted that in circumstances where the Respondents:
a) contend that all vacant positions were being re-evaluated because of the introduction of clinical streaming; and
b) the reason the Respondents have provided for not proceeding with the appointment process for the SMO position applied for by the Applicant is clinical streaming considerations, the manner in which other permanent SMO positions were dealt with during the relevant period (being from 1 August 2014 to 31 October 2014) is relevant.
Whether clinical streaming was considered with respect to those positions is relevant, as it would demonstrate whether the Applicant received treatment that was different to others in circumstances that are not materially different (i.e. permanent SMO positions).
It is further submitted that the decisions made by Mr Stamp and Ms Mahon are both directly relevant, as they were the relevant decision-makers in respect of permanent SMO positions (albeit at different times during the relevant period).
The recruitment process undertaken in respect of permanent part time SMO positions is relevant to the present case, as such a process will demonstrate whether the Applicant received treatment that was less favourable to people in circumstances that were the same or not materially different.
The recruitment process is a consideration that is relevant, as was observed by the Supreme Court of Queensland in Virgin Blue Airlines Pty Ltd v Hopper & Ors [2007] QSC 075.
In that case, the recruitment process of Virgin Blue was considered across a number of cases of applications for employment by individuals as flight attendants (see paragraph [21], for example).
Consequently, the Applicant maintains his application for production of the documents sought, albeit limited to those relevant to permanent SMO positions only.
Dr Davis now seeks production of the recruitment files for all full-time or part-time permanent SMO positions in the Hospital and Health Service for which the approval of Ms Mahon and her predecessor, Mr Stamp, was sought during the period from 1 August 2014 to 31 October 2014.
This limiting of the category of documents sought to be produced reduces the objection of the Hospital that the request is ‘too broad, imprecise and oppressive’.
The Hospital has submitted that temporary positions are not comparators for the purposes of section 10 of the Anti-Discrimination Act 1991. It has not submitted that permanent positions (whether part-time or full-time) are not comparators.
Section 10 of the Anti-Discrimination Act 1991 provides as to direct discrimination that:
10 Meaning of direct discrimination
(1)Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.
In his complaint to the Anti Discrimination Commission Queensland made on 22 July 2015, Dr Davis complained of discrimination because of his presumed ‘political belief or activity’.
A comparator in this matter would be a person without the attribute of ‘political belief or activity’ that Dr Davis alleges he has.
I am not required for the purposes of this application to determine what comparators may be in relation to Dr Davis’s claim, but there must be at least an arguable case that persons without an attribute of ‘political belief or activity’ who have applied for permanent positions (whether part-time or full-time), as Dr Davis did, would be considered as comparators.
The Hospital has submitted that the request is oppressive; however, no indication is given as to what difficulty would be experienced in complying with the request. Consequently, I cannot be satisfied that compliance would be oppressive.
The documents that are being sought on this Ground are the recruitment files for permanent SMO positions (whether full-time or part-time). Central to this matter is an examination of the selection criteria and processes that were applied to consideration of candidates for those positions, and the extent to which clinical streaming was a determining factor. Such recruitment files would be expected to reflect the processes and considerations applied, and be of direct relevance to the matters in issue.
The Hospital submits that the request is not relevant insofar as it relates to Mr Stamp, as the decision-maker in respect of the subject decision was Ms Mahon.
As previously discussed, Mr Stamp was the Chief Executive at the time that Dr Davis’s application was being considered from August 2014 until 8 September 2014, and Mr Stamp was expected to have implemented the practice of clinical streaming in relation to the SMO position in that time.
Whilst Ms Mahon was the ultimate decision-maker, the application by Dr Davis for the position was already being considered whilst Mr Stamp was the Chief Executive.
The period for which production is sought is the period from 1 August 2014 to 31 October 2014. This is the period from the implementation of clinical streaming to the end of the month in which Dr Davis was advised that the selection committee was unable to progress the filling of the vacancy. This period includes periods when Mr Stamp and then Ms Mahon was the Chief Executive. The recruitment files would have continued on, and responsibility for them would been passed on from one of those persons to the other.
I consider that recruitment files for permanent SMO positions (full-time and part-time) for which the approval of Mr Stamp was sought after 1 August 2014 until his cessation on 8 September 2014 are directly applicable and relevant to consideration of the appointment process, which is a matter in issue in the proceeding.
Similarly, the files thereafter for which the approval of Ms Mahon was sought are directly applicable and relevant to consideration of the appointment process.
The Hospital raised objection to production of the recruitment files for which the approval of Ms Mahon was sought on the basis that the request was too broad, imprecise and oppressive, and was not relevant to a matter in issue. As I have discussed, I consider that the request as now framed is not too broad, imprecise or oppressive, and is relevant to a matter in issue.
I consider that the period between 1 August 2014 and 31 October 2014 is a relevant and particular period, and will order production within that period.
The documents of which production is sought are departmental documents in origin. The application is directed to all the Respondents. I will make the order against all of the Respondents in case any of the documents are not held or are not accessible by the Hospital, but are within the personal power or possession of Ms O’Sullivan or Ms Mahon.
0
4
0