Dr Swaran Khera v Royal Adelaide Hospital No. Dcaat-99-1 Judgment No. D62

DR SWARAN KHERA
v
ROYAL ADELAIDE HOSPITAL
[1999] SADC 1 of 1999 D62

HER HONOUR JUDGE TRENORDEN
EQUAL OPPORTUNITY TRIBUNAL

The complainant has sought further and better discovery from the respondent, the Royal Adelaide Hospital, in this matter. The complainant has sought discovery of the following records of the respondent relating to the advertisement of positions within the Department of Neurosurgery of the Hospital, between 1979 and 1994:
1...... Advertisements
2.Applications
3...... Documents which arose out of the process of determining the successful candidate for the position
The complainant says that these documents are relevant to his case as going to establishment a pattern of behaviour by the respondent relevant to the substance of the complaint.
The respondent says that the documents are not discoverable because there are no proper grounds for discovery, the documents are not relevant and discovery will be burdensome to the respondent. Counsel submitted that the complainant seeks to engage in a fishing expedition; that with the exception of one case mentioned by counsel for the complainant, he was not able to point to knowledge of any other documents. In any event, it is said that the documents of themselves will not assist in tending to show a pattern of behaviour as alleged by the complainant.
It is submitted that discovery will be burdensome, as the records being sought extend over a period of 25 years, with the period commencing 30 years ago.
No evidence was put before the Court by either party.
The background to the application is an allegation that the complainant has previously experienced racial discrimination at the hands of the respondent in relation to advertised positions for which he applied, in 1979, 1980 and 1981.
The complaint alleges discrimination with regard to age and to race contrary to the provisions of the Equal Opportunity Act 1984. The complaint is based on the complainant’s treatment at the hands of the respondent with respect to his application for a position advertised by the respondent in or about August 1994, for a Consultant Neurosurgeon.
I accept that it may be relevant to the proceedings for the complainant to show a patters of behaviour by the respondent towards him. However, this is not a matter where the respondent has to answer any more than a charge of discrimination on the grounds of race and age, against the complainant. The complainant cannot go beyond the bounds of the complaint, nor should the respondent have to prepare to meet a case that goes beyond those bounds. The respondent is not facing a broad charge of discrimination on the grounds of race against a class of persons, but only in respect of Dr Khera in relation to the matters which occurred in 1994. In these circumstances, it would be onerous to expect the respondent to discover all documentation as sought by the complainant. Documents relating to persons other than Dr Khera are not relevant to the hearing of the complaint before the Tribunal.
In addition, as the complainant’s counsel was unable to point to the existence of any other documents in the categories sought by him, except those involving Dr Khera in 1979, 1980 and 1981, and one other person, the request is largely a fishing expedition.
I am prepared to accede to part only of the application, namely that the respondent discover the documents sought in relation to Dr Khera. The formal order of the Court is that the respondent make further and better discovery as follows:-
Documents relating to positions advertised within the Neurosurgery Department of the Royal Adelaide Hospital in respect of which Dr Swaran Khera made application, in 1979, 1980 and 1981, including the advertisements, the applications by Dr Khera and any documents generated in the course of considering the applicants for the positions, which refer to, or were sent to, Dr Swaran Khera.

Dr Swaran Khera, a complainant, sought further discovery from the Royal Adelaide Hospital regarding specific records related to job advertisements and applications within the Neurosurgery Department between 1979 and 1994. Khera argued that these records were crucial to establishing a pattern of discriminatory behaviour by the hospital. The hospital contested the request, stating that the documents were not relevant to the specific complaint of racial and age discrimination against Khera, and that complying with the discovery request would be unduly burdensome. The Equal Opportunity Tribunal was tasked with determining whether the discovery request was appropriate and whether it should be granted in part or in full.

The key legal issues before the Tribunal included the relevance of the requested documents to the specific complaint, the scope of discovery in discrimination cases, and whether the discovery request represented a fishing expedition. The Tribunal had to balance the need for the complainant to demonstrate a pattern of discriminatory behaviour against the respondent's right to limit discovery to relevant and necessary information. Additionally, the Tribunal needed to assess whether the extensive time period covered by the discovery request justified the respondent's claim of undue burden.

The Tribunal concluded that while it was relevant for Khera to show a pattern of discriminatory behaviour, the respondent was not required to produce documents beyond those directly related to the specific complaint. The Tribunal found that the request was overly broad and included documents irrelevant to the 1994 application, effectively constituting a fishing expedition. Consequently, the Tribunal granted partial discovery, ordering the hospital to provide documents specifically relating to Khera's applications in 1979, 1980, and 1981, including advertisements, applications, and any documents generated in the selection process that mentioned Khera.

In summary, the Tribunal ruled that the respondent must provide specific documents relating to Dr Khera's previous applications, but denied the broader discovery request. The formal order mandated that the hospital disclose the relevant documents pertaining to Dr Khera's applications in the specified years, thus limiting the scope of discovery to what was necessary and relevant for the proceedings.

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