Edward Clark Allon v RMIT University
[2017] VSC 203
•19 April 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2015 02715
| Edward Clark Allon | Plaintiff |
| v | |
| RMIT University | Defendant |
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JUDGE: | JUDICIAL REGISTRAR CLAYTON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 April 2017 |
DATE OF JUDGMENT: | 19 April 2017 |
CASE MAY BE CITED AS: | Edward Clark Allon v RMIT University |
MEDIUM NEUTRAL CITATION: | [2017] VSC 203 |
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PRACTICE AND PROCEDURE – Application for further discovery – Objection to production of redacted parts of discovered document – Objection on basis of relevance to pleading - Whether particulars of negligence in pleading sufficient to warrant discovery – Whether redaction justified – Production ordered with redaction of identifying details - Application granted in part - Civil Procedure Act 2010 (Vic), ss 7, 55.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram of Counsel | Shine Lawyers |
| For the Defendant | Mr B House, Solicitor | Minter Ellison |
JUDICIAL REGISTRAR:
The plaintiff’s application for further discovery is granted in part.
The defendant will be ordered to make discovery of:
a.the spreadsheet identified as “WorkCover Claims as at 310909.xls” redacted only as to the names and identifying details of employees other than Mr Hana, Mr May and Mr Pygall; and
b.any incident reports and any WorkCover claim forms relating to any RMIT employees’ stress, anxiety, depression, suicidal tendencies or any other psychological disposition between 1 August 2008 and 31 August 2009 with names and identifying details redacted.
Introduction
This is an application by the plaintiff, Mr Allon, for further discovery pursuant to Order 29 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic), (“the Rules”). In support of his application, Mr Allon relies on affidavits of his solicitor, Mr Peter Haddad, sworn 1 September 2016 and 2 March 2017.
By summons filed 7 September 2016, Mr Allon sought orders relating to a number of other matters that were subsequently resolved by consent. This application relates to paragraph 2 of Mr Allon’s summons, being an application under r 29 for further discovery of certain documents or categories of documents. In particular, Mr Allon seeks discovery in respect of the following:
(a) Mr Nihal Hana’s employment contract and/or position description for the position of Senior Educator Lev 2.2 + LDG and for any other position within the College of SET;
(b) Any WorkCover claims data and/or documents relating to RMIT employees’ complaints of stress, including but not limited to:
(i) An unredacted version of the spreadsheet previously discovered by the defendant as a redacted document, named “WorkCover Claims as at 310909.xls”;
(ii) Any injury log book/s covering the period 1 July 2008 to 31 December 2009;
(iii) Any incident reports and/or claim forms relating to any RMIT employees’ stress, anxiety, depression, suicidal tendencies and/or any other psychological disposition; and
(iv) Any records (including email, minutes of meeting, hand written note or otherwise) of reports to HR and/or People and Culture relating to employees’ stress, anxiety, depression, suicidal tendencies and/or other psychological disposition.
The defendant, RMIT, opposes the application in whole and relies on an affidavit of its solicitor, Mr Ben House, sworn 6 April 2017.
RMIT has previously provided to Mr Allon sworn affidavits of documents dated 19 August 2016, 1 September 2016, 26 September 2016 and 16 December 2016.
During oral argument Mr Allon’s counsel informed the Court that he no longer pursued discovery of the injury log book/s covering the period 1 July 2008 to 31 December 2009 or the records (including email, minutes of meeting, hand written note or otherwise) of reports to HR and/or People and Culture relating to employees’ stress, anxiety, depression, suicidal tendencies and/or other psychological disposition.
Mr Allon’s counsel also confined the scope of the incident reports and claim forms as set out at paragraph 2(b)(iii) above to the period 1 August 2008 to 31 August 2009 and agreed that the names and identifying details of any employees covered by 2(b)(i) and 2(b)(iii) could be redacted.
As a result of these concessions, Mr Allon continues to press discovery of;
(a) Mr Hana’s employment contract (“the contract”);
(b) a spreadsheet previously discovered named ‘WorkCover Claims as at 310909.xls’ redacted only as to names and identifying details other than for Mr Hana, Mr May and Mr Pygall (“the spreadsheet”); and
(c) incident reports and/or claim forms relating to any RMIT employees’ stress, anxiety, depression, suicidal tendencies and/or any other psychological disposition between 1 August 2008 and 31 August 2009 with names and identifying details redacted (“the reports”).
Background
Mr Allon issued proceedings on 28 May 2015. Paragraph 4 of the statement of claim alleges that in the period between August 2008 and August 2009, Mr Allon ‘was required to work in a highly stressful environment in which he was repeatedly pressured to increase work output despite RMIT being aware that he was suffering from psychological illness and in circumstances where Mr Allon had no or no adequate support and/or assistance to enable him to meet his work requirements, as a result of which he suffered injury’.
Mr Allon alleges that he suffered a number of psychological injuries arising from his employment including a chronic major depressive disorder and an anxiety disorder, as well as a loss of earnings and loss of earning capacity.[1]
[1]Particulars under paragraph 4 of the statement of claim.
Mr Allon alleges that RMIT was negligent and provides a number of particulars of negligence that, in their generality, provide the Court with little assistance in determining the scope of the matters in issue between the parties, or the precise nature of the allegations made against RMIT. The particulars of negligence pleaded at paragraph 5 include:
(a) Failing to provide a safe system of work;
(b)Failing to provide the Plaintiff with any or any adequate or proper supervision;
(c) Failing to provide a safe place of work;
(d)Exposing the Plaintiff to risk of danger of injury of which the Defendant knew or ought to have known.
Such particulars could apply as easily to a claim involving an unguarded machine in a factory as to a stress claim at a tertiary education institution.
RMIT denies each allegation of injury and negligence and claims that Mr Allon contributed to any injury he sustained by failing to take care for his own safety and failing to follow directives.[2]
[2]Defence dated 8 July 2015, [4]–[8].
No particulars of the allegations of contributory negligence are provided in the defence or appear to have been sought by Mr Allon.
Mr Allon’s submissions
Mr Allon submitted that, despite the generality of his pleading, of central relevance to his claim was RMIT’s conduct in relation to:
(a) allegations of bullying made against the plaintiff by three employees of RMIT, Mr Nihal Hana, Mr Noel May and Mr Craig Pygall;
(b) a possible breach by Mr Hana of the terms of his employment contract; and
(c) claims of stress or psychological injury made by other employees of RMIT.
Mr Allon submitted in oral argument that it was necessary to obtain Mr Hana’s employment contract as it was likely that it would contain a clause requiring Mr Hana to act in good faith, which clause Mr Hana may have breached by allegedly selling answers to examination papers to students. In addition, Mr Hana may have relevantly been on probation or subject to a probationary period, the details of which could be located in his terms of employment. In written submissions, Mr Allon argued that the terms of the employment contract are relevant to determine whether RMIT discharged its contractual obligations to investigate and take disciplinary measures in relation to Mr Hana.
Mr Allon submitted that the complaints made against him by Mr Hana, Mr May and Mr Pygall were ‘feints’ designed to attract attention away from the real issue which was RMIT’s conduct toward Mr Allon, and that the credit of these three men was ‘very much in issue’ and would likely be attacked at trial.
Mr Allon submitted that he wanted to investigate how RMIT conducted itself upon receipt of WorkCover claims, specifically in the case of Mr Hana, but more generally to compare the way RMIT dealt with Mr Allon’s claim with the way it dealt with other similar claims.
In his written submission, Mr Allon argued that documents relating to other employees’ WorkCover claims were relevant because they went to the knowledge RMIT had as to risk in the workplace and whether the psychiatric injury he sustained was reasonably foreseeable by RMIT.
Mr Allon, in answering RMIT’s request for further and better particulars, alleged that two members of RMIT staff who had previously shared the role of Industry Manager (the position occupied by Mr Allon during the relevant period) had both suffered stress related illnesses and that a supervisor had suffered a ‘nervous breakdown’.
RMIT’s submissions
RMIT objects to the further discovery request on the grounds that the discovery application is, in effect, fishing and beyond the scope of section 55 of the Civil Procedure Act 2010 (Vic). It relies on the principles in Moore v Woodman [1970] VR 555:
a litigant should not be allowed to indulge in a "fishing" expedition to bolster up a case by the aid of discovery of documents, and in particular to introduce material in litigation which would lengthen it by involving a trial within the trial of issues brought about by the discovery: cf. Rofe v Kevorkian, [1936] 2 All ER 1334, at p. 1337; Board v Thomas Hedley, [1951] 2 All ER 431, at p. 432; Edmiston v British Transport Commission, [1955] 3 All ER 823, at p. 826.
The position is aptly described by Menzies, J, in Mulley v Manifold, (1959) 103 CLR 341, at p. 345, in these words: "I now turn to the pleadings to determine what are the matters at issue between the parties, because discovery is a procedure directed towards obtaining a proper examination and determination of these issues--not towards assisting a party upon a fishing expedition.”[3]
[3]Moore v Woodman [1970] VR 555, 578-9.
RMIT disputes that Mr Hana’s employment contract is in any way relevant to any allegation made by Mr Allon, particularly to the question of its duty to provide a safe place to work. It further disputes the allegations against Mr Hana and the findings of an inquiry by the Ombudsman into those allegations.
RMIT contends that the WorkCover claims of employees other than Mr Hana, Mr May and Mr Pygall are entirely irrelevant to Mr Allon’s claim. It submits that to date there has been no reference made to any alleged failure of RMIT in respect of its claims process and that it is for Mr Allon to positively assert such an allegation in its pleading.
In its oral submission, RMIT stated that it employed approximately 10,000 people over a number of campuses, and that to provide such documents would be time consuming, expensive and onerous.
RMIT submitted that even confining the discovery search to documents involving ‘stress claims’ is likely to generate many irrelevant documents and that the Court ought to have regard to the matters set out in r 29.01.1(5)(d) when ordering discovery.
Relevant Principles
In the resolution of any interlocutory application, including an application for discovery, the Court must have regard to the Civil Procedure Act 2010 (Vic) (“the Act”).
Section 7 of the Act sets out that the overarching purpose of the Act and the Rules in civil proceedings is to ‘facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’.
In Liesfield v SPI Electricity Pty Ltd & Ors (Ruling No 1),[4] Forrest J set out a useful analysis of the interaction of the Act and the Rules:
In sum, both the Act and Rules mandate that any order concerning discovery should be directed to finding the most efficient, effective and economical management of the discovery exercise, bearing in mind the nature and complexity of the trial.[5]
[4](2013) 43 VR 493
[5]Ibid 500 [25].
Section 55 of the Act sets out the broad powers of the Court to order and to limit discovery:
(1)A court may make any order or give any directions in relation to discovery that it considers necessary or appropriate.
(2)Without limiting subsection (1), a court may make any order or give any directions—
(a) requiring a party to make discovery to another party of—
(v) any documents within a class or classes specified in the order; or
(vi) one or more samples of documents within a class or classes, selected in any manner which the court specifies in the order;
(b) relieving a party from the obligation to provide discovery;
(c) limiting the obligation of discovery to—
(i)a class or classes of documents specified in the order; or
(ii)documents relating to one or more specified facts or issues in dispute; or
(iii)some or all of the issues set out in a statement of issues filed in the proceeding;
(d) that discovery occur in separate stages;
(e) requiring discovery of specified classes of documents prior to the close of pleadings;
(f) expanding a party's obligation to provide discovery;
(g) requiring a list of documents be indexed or arranged in a particular way;
(h) requiring discovery or inspection of documents to be provided by a specific time;
(i) as to which parties are to be provided with inspection of documents by another party;
(j) relieving a party of the obligation to provide an affidavit of documents;
(k) modifying or regulating discovery of documents in any other way the court thinks fit.
(3)A court may make any order or give any directions requiring a party discovering documents to—
(a)provide facilities for the inspection and copying of the documents, including copying and computerised facilities;
(b)make available a person who is able to—
(i)explain the way the documents are arranged; and
(ii)help locate and identify particular documents or classes of documents.
(4)A court may order or direct a party to pay to another party an amount specified or determined by, or in accordance with, the order or direction in relation to the costs of discovery in any manner considered appropriate by the court, including, but not limited to, payment in advance of an amount to the other party for some or all of the estimated costs of discovery.
(5)Without limiting any other power of a court to make costs orders, a court may order or direct that costs payable under an order or a direction under subsection (4) are recoverable as costs in the proceeding.
Rule 29 also provides the scope and limits of discovery subject to Court order, and Rule 29.01.1(5) relevantly provides that, in having regard to the documents to be discovered, a party may take into account:
(a) The nature and complexity of the proceeding;
(b) The number of documents involved;
(c) The ease and cost of retrieving a document;
(d) The significance of any document to be found; and
(e) Any other relevant matter.
In Volunteer Fire Brigades Victoria v CFA (Discovery Ruling),[6] Forrest J said:
The overriding consideration of the CPA is to ensure that the parties receive a fair trial i.e. ‘a just resolution’ to use the words of the CPA. However, a fair trial is not a perfect trial. It is, rather, the best trial that a court can provide to the parties within reason and in proportion to the issues in dispute and the court’s resources. Accordingly, demands for discovery of documents which are peripheral to the central issues cannot be entertained. The Court is obliged to focus on the central issues as best it can be determined at this point in the litigation.[7]
[6][2016] VSC 573.
[7]Ibid [34].
The Relevance of the Documents
At this stage, the central issues in this proceeding are whether RMIT provided Mr Allon with a safe workplace and a safe system of work, so as to avoid a reasonably foreseeable risk of injury, and whether Mr Allon suffered injuries arising from the alleged breach of RMIT’s obligations to provide that safe workplace and system of work.
Despite the lack of information provided to the Court on the pleadings, it appears from correspondence between the parties exhibited to various affidavits filed in the proceedings, including the affidavit of Mr Haddad of 2 March 2017 and RMIT’s affidavit of documents dated 26 September 2017, that RMIT accepts that certain documents relating to other employees of RMIT, and in particular Mr Nihal Hana, Mr Noel May and Mr Craig Pygall are properly discoverable documents in the proceeding. Some documents relating to these employees have been discovered.
I accept that documents relating to these three employees may be relevant to the central issues in dispute.
Counsel for Mr Allon indicated to the court that the statement of claim was likely to be substantially amended and that such amendments would make allegations relating to Mr Hana’s conduct. . However at the time of this application, no amended statement of claim had been filed, nor was leave sought in respect of any draft amended statement of claim. During oral argument, the detail provided of any likely amendments by Mr Allon’s counsel did not go beyond a submission that Mr Hana’s credit would be put in issue and his conduct was likely to be the subject of allegations.
Certainly the examination of discoverable material not infrequently leads to amendments to pleadings as the real issues in dispute between the parties become clearer. I do not consider it necessary that pleading amendments must always precede an application for further discovery. The just, efficient, timely and cost effective resolution of the real issues in dispute might make it appropriate to make orders for discovery of particular documents, even where the relevance of those documents is not made out in the current state of the pleadings. As Dixon J said in Holloway v Commonwealth of Australia:[8]
The root causes of this debate and the genesis of the solution lie in the pleadings. The plaintiff’s statement of claim was likely pleaded when his instruction about the incidents was less well informed by discovery and other investigations….It is likely that with the benefit of analysis of discovery, the statement of claim might be differently structured and would require a differently structured defence.[9]
…
I consider that the just, efficient, timely and cost efficient resolution of the real issues in dispute will more effectively be achieved if the plaintiff reconsiders the structure of his statement of claim. That is not to say that I consider that the Commonwealth’s objections to providing further particulars are well founded. I do not say that. Rather, it is to give both parties the opportunity to refine the identification of the issues in the light of discovery.[10]
[8][2016] VSC 317.
[9]Ibid [150].
[10]Ibid [153].
Mr Allon submits that the documents already discovered indicate that RMIT knew there was an abundance of psychological claims and cited two discovered documents, one which noted that three staff had come forward with suicidal tendencies and another which noted ‘we have lots of people….out on stress’.
RMIT relies on the case of Moore v Woodman in which discovery of documents relating to past accidents involving a particular tram post was sought. Whilst Gillard J considered that a litigant ought not be able to ‘bolster up a case by the aid of discovery of documents’ yet:
Contrary to my initial reaction to this application, and having had the benefit of reading the various authorities, some cited by counsel and others that I have discovered for myself, I have reached the conclusion that the documents …do relate to the issues between the parties. In particular the defendant relies very strongly upon the dangerous position of the post fixed by and maintained by the Board on the highway. The Board's conduct in relation to the position of the post must be appraised against the background of its knowledge of the experience of such post. This must be one of the relevant circumstances… the knowledge of a possible danger is a very important and relevant circumstance. It is important in determining what the reasonably prudent operator would do if he had knowledge of the dangerous character of the post. Equally it is one of the primary facts in the case, as to whether the post was dangerous. The experience gained over the years may prove the character of the post and determine whether or not it in fact was dangerous. It has been urged by Mr. Francis, and quite correctly, that the knowledge of the Board has not been expressly alleged in the particulars of negligence. As Menzies, J, pointed out in the dictum which I have cited, it is necessary to consider the pleadings to determine what are the issues. In my view, however, I believe the knowledge of the Board is but one of the circumstances which may support the general allegation of negligence. Furthermore, several of the particulars implied that the Board allegedly knew that the situation of the post was dangerous.[11]
[11]Ibid 580.
In the present case, claims of psychological injury by other employees are relevant to RMIT’s knowledge of the risk to which Mr Allon was exposed.
It is reasonable for Mr Allon to seek further discovery relating to other such injuries before finalising pleading amendments.
I turn to consider each document, or category of documents sought by Mr Allon and to make relevant findings.
The contract
Having considered the arguments of the parties, I cannot see how, on the basis of the evidence before the Court and having regard to the central issues in dispute, allegations of misconduct by Mr Hana and RMIT’s actions in response to those allegations could make his contract of employment relevant or a properly discoverable document in this proceeding.
The spreadsheet
It is agreed between the parties that a spreadsheet has already been provided, entirely redacted save as to the details of Mr Hana, Mr May and Mr Pygall.
The number of employees claiming psychological injury arising from their employment and the details of those claims are matters directly relevant to whether the workplace is safe and whether there is a safe system of work. I do not, however, accept that the manner in which RMIT processed individual WorkCover claims, the complaints proceeding procedures at RMIT, or a comparison between the way in which RMIT dealt with Mr Allon’s claim and other employees’ claims are central issues in dispute.
I reject RMIT’s argument that seeking such documents is ‘in effect, fishing’ and beyond the scope of section 55 of the Act. The conclusions that may be drawn from the number and detail of other employee claims are a matter for the trial judge, but documents that indicate how many claims were made, and the circumstances in which those claims were made, are relevant to the real issues in dispute between the parties.
Mr Allon’s counsel accepts the redaction of identifying details and I am therefore not required to determine whether considerations of the confidentiality of employees override Mr Allon’s interest in having those details disclosed. The spreadsheet ought to be discovered, redacted as to names and identifying details. For clarity, this means that the type of injury, date, and information about the injury ought to be disclosed, but the name and any information that would tend to identify the claimant ought to be redacted.
As the spreadsheet has already been discovered, albeit significantly redacted, it does not appear too onerous a task to remove the redactions of all employees save for their names and identifying details, other than the three identified above.
The reports
In relation to the reports sought, Mr Allon has confined his request to a period of 13 months between 1 August 2008 and 31 August 2009.
Having already determined that the spreadsheet, which sets out the number of employees making stress claims and a brief outline of the circumstances of those claims, is discoverable, it is logical that the reports themselves would also be relevant.
RMIT asserts that to provide such discovery would be costly, time consuming and onerous, but other than submitting that it employs over 10,000 people, has provided no evidence as to what would be involved in undertaking this exercise or why it would be onerous.
A spreadsheet that includes the relevant claims is already in existence and the documents sought have been confined to a relatively short time period. In the absence of any evidence about how many claims fall into this category and what would be involved in providing this discovery, I have no information upon which to make a finding that these otherwise relevant documents ought not be discovered because discovery would be too onerous or otherwise not in the interests of justice.
As with the spreadsheet, the reports ought to be provided with names and identifying details redacted.
I will hear the parties in relation to costs.
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