Kovacs v Strathfield Municipal Council
[2023] NSWPIC 611
•14 November 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Kovacs v Strathfield Municipal Council [2023] NSWPIC 611 |
| APPLICANT: | Ovidiu 'Vince' Kovacs |
| RESPONDENT: | Strathfield Municipal Council |
| MEMBER: | Rachel Homan |
| DATE OF DECISION: | 14 November 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for compensation in respect of psychological injury alleged to have occurred as a result of bullying and harassment by supervisor; notice for production requesting supervisor’s personnel file; determination of notice of objection lodged by respondent; relevance; legitimate forensic purpose; Held – notice for production set aside in part. |
| DETERMINATIONS MADE: | The Commission determines: 1. The notice for production dated 10 October 2023 is set aside in part. |
STATEMENT OF REASONS
BACKGROUND
Mr Ovidiu 'Vince' Kovacs (the applicant) was employed as a Team Member by Strathfield Municipal Council (the respondent).
On 21 January 2020, the applicant injured his left elbow at work whilst bolting two sections of fence together. On 1 June 2021, the applicant sustained a further injury to his left elbow while attempting to feed a branch into a chipper. On 13 September 2021, the applicant injured his left ankle at work while stepping across a section of uneven footpath. It appears that liability for these physical injuries was accepted by the respondent’s insurer.
On 7 March 2022, the applicant made a claim for compensation in respect of a primary psychological injury due to various incidents in the course of his employment. Liability for the psychological injury was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 28 March 2022. That decision was maintained in a further notice issued pursuant to s 78 of the 1998 Act on 10 August 2022.
Notices disputing ongoing liability to pay compensation in respect of the physical injuries and maintaining the disputes in relation to the psychological injury were issued on
15 November 2022.On 8 June 2023, the applicant made a claim for lump sum compensation in respect of the psychological injury relying on an assessment of 24% whole person impairment (WPI) made by psychiatrist, Dr Frank Chow.
A further notice maintaining the liability disputes was issued on 4 October 2023.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (Commission) on 6 October 2023.
The applicant seeks lump sum compensation in respect of the psychological injury as well as weekly compensation and medical and related treatment expenses in respect of both the physical injuries and the psychological injury.
The matter proceeded to a preliminary conference on 9 November 2023, during which there was a discussion regarding a notice for production (the Notice) served by the applicant on
10 October 2023. The respondent lodged a notice of objection pursuant to r 41(2) of the Personal Injury Commission Rules 2021 on 17 October 2023.The applicant pressed for production of the documents but indicated he would be prepared to narrow the scope of the documents sought to some extent. The respondent maintained its objection to producing the documents, even on the more limited basis.
Accordingly, the parties were invited to make oral submissions on the record in respect of the objection. The parties were advised that a written Certificate of Determination and statement of reasons dealing with the interlocutory dispute would be issued.
ISSUE FOR DETERMINATION
The following issue is presently in dispute:
(a) whether the Notice dated 10 October 2023 should be set aside.
Notice to Produce
The Notice dated 10 October 2023 is not in evidence, however the respondent’s notice of objection indicates that it requested the production of the “Personal file of Peter Bowmer”.
Mr Bowmer is described in the applicant’s statement evidence as his “Executive Manager”.The respondent lodged a notice of objection pursuant to r 41(2) on 17 October 2023. The respondent objected to producing the documents on the following basis:
“We note that you have served an ARD which contains 720 pages of evidence in support of your client’s claim. We note that a ‘suspicion’ that the requested documents will or may assist your client is not enough. A bare unsupported assertion that something may be found that is helpful to the party seeking access will not suffice to establish the existence of a legitimate purpose: Carroll v Attorney-General for New South Wales (1993) 70 A Cr R 162, 182.
You have not outlined how the documents you have requested in paragraph 2 of the Notice for Production would serve any relevant or legitimate forensic purpose or be relevant to a fact in issue in the proceedings, by reference to any of the evidence you have filed with the ARD or otherwise.
The respondent says a Notice for Production should specify the documents that it seeks with reasonable particularity. It cannot seek broad categories of documents generally or require the recipient to decide for themselves what documents are relevant and what documents are not.
The respondent says your very broad Notice for Production amounts to a ‘fishing expedition’ in that it is not being used to ascertain information of any apparent relevance to the applicant’s case, but is being used to potentially uncover evidence that ‘may’ assist on an issue that has not been identified in the existing pleadings or in the evidence filed on behalf of the applicant to date. In these circumstances, the respondent says that your Notice for Production should be set aside.
Furthermore, as the material sought in relation to the former employee, Peter Bowmer, contains private and confidential information of a third party (who is no longer an employee of the respondent), the respondent says the Commission should closely scrutinise the Notice for Production to ensure that the material sought by it is relevant to the case.”
The applicant has not served a notice of opposition in response to the objection in accordance with r 41(3) and (4).
Issues in dispute
The ARD described the cause of the alleged psychological injury as being:
“…subjected to repeated comments, directions and actions from his supervisor including unjustified accusations in relation to which the Applicant lodged a formal grievance.
Additionally, the Applicant was required to engage in duties with insufficient staffing numbers.
Additionally, the Applicant was subjected to further criticisms including adverse comments and actions in relation to his vaccination status that were unreasonable.”
In his statement evidence, the applicant gave various examples of allegedly hostile conduct directed towards him, including by Mr Bowmer.
The applicant described submitting a formal grievance against Mr Bowmer following a meeting during which Mr Bowmer spoke about the applicant being ineffective and inefficient and allegedly said the applicant came to work “to drive around looking and perving at girls”.
The applicant said he also became aware that Mr Bowmer had referred to the applicant being a “fraud” with respect to his physical injury during an executive meeting. The applicant said Mr Bowmer was told to apologise for this comment and that this could be verified by the HR minutes of the meeting.
A further grievance was lodged by the applicant against Mr Bowmer after he sent an email stating that the applicant was sending inappropriate emails to the CEO. The applicant considered this to be a false accusation and that Mr Bowmer was trying to defame him.
The applicant also said that Mr Bowmer had harassed another member of staff.
The dispute notices issued in response to the claim identified disputes, amongst other things, by reference to ss 4, 9A and 11A(1) of the Workers Compensation Act 1987 (the 1987 Act). The notices observed that the applicant’s claims that he was called a “fraud” and a “pervert” by Mr Bowmer and that Mr Bowmer had otherwise bullied and harassed the applicant and defamed his character were factually disputed. The applicant’s credit as a witness was placed in issue.
Attached to the ARD and the Reply were various witness statements, email correspondence and employer records dealing with the workplace events described by the applicant. Amongst the witness evidence attached to the ARD, were statements expressing the view that Mr Bowmer had a “predisposition to bullying colleagues”.
In a statement provided by Mr Bowmer, he indicated that a number of false complaints against him had been made by one of the applicant’s witnesses, none of which had been substantiated. Mr Bowmer stated that several of the applicant’s other witnesses had ceased employment with the respondent after being performance managed or made redundant.
A statement attached to the Reply from Joshua Timsans, People and Culture Business Partner, indicated that Mr Bowmer had been made redundant in January 2023. Mr Timsans stated that Mr Bowmer,
“…was not the subject of any investigations or disciplinary proceedings. He was not under any sort of disciplinary cloud at the time of his exit or in the months leading up to his exit.”
Respondent’s submissions
The respondent observed that the Notice required production of the personnel file of a former employee and referred the Commission to the matters set out in its notice of objection dated 17 October 2023.
Noting that the applicant had suggested that the file might contain complaints or evidence of disciplinary proceedings involving other employees, the respondent submitted that it had not been established that such material would be relevant to the issues in dispute in these proceedings.
The production of such documents might also result in the inappropriate disclosure of the personal information of other employees, who were not party to these proceedings and who would not expect their information to be disclosed for this purpose.
The respondent further submitted that it should not be compelled to disclose confidential health information or medical records, financial records or taxation information pertaining to Mr Bowmer.
The respondent submitted that only documents pertaining to the applicant could be relevant to the proceedings. The documents sought went beyond the relationship between the applicant and Mr Bowmer. Should the applicant wish to issue another Notice to Produce, limiting the scope of the documents to be produced, that could be considered and responded to in accordance with the Rules.
Applicant’s submissions
The applicant confirmed that he would be willing to confine the scope of the documents sought to those concerning any complaints in relation to Mr Bowmer’s conduct and any disciplinary action pertaining to his conduct.
Mr Bowmer’s conduct was said to be highly relevant to the issues in dispute. The witness evidence and the medical evidence pointed to Mr Bowmer’s conduct being a significant factor resulting in the development of the applicant’s psychological condition. The factual evidence pointed to a pattern of conduct on Mr Bowmer’s part. The documents sought would potentially corroborate the applicant’s evidence as to what he was exposed to in the workplace.
With regard to any privacy concerns, the applicant said that could be managed by retention of the material or non-publication.
The applicant submitted that any privacy concerns would be overridden by the evidentiary value of the material.
FINDINGS AND REASONS
Relevant law
Rule 39 of the Personal Injury Commission Rules 2021 provides:
“39 Notice for production
A requesting party may serve a notice for production on a producer at the producer’s address for service requiring the producer to produce for inspection a document that is —
(a) clearly identified in the notice, and
(b) relevant to a fact in issue in the proceedings.”
Under r 40(2) a producer must comply with a notice for production within seven days of the date on which the notice was served on the producer. The manner of compliance is provided for in r 41:
“41 Compliance with notice for production
(1) A producer must comply with a notice for production by delivering to the requesting party, at the requesting party’s address for service and within the time required by rule 40(2), a clear copy of the document referred to in the notice that is—
(a) in the possession or control of the producer, and
(b) not the subject of a notice of objection referred to in subrule (2).
(2) A producer must also serve on the requesting party, at the requesting party’s address for service and within the time required by rule 40(2), a notice of objection concerning a document that has not been delivered, stating—
(a)the document is not suitable for copying but may be inspected at a specified place and time and on a date within 7 days of the date on which the notice of objection was served on the requested party, or another date agreed to by the parties, or
(b) the document is privileged and the reasons for the claim of privilege, or
(c) the document is not relevant to a fact in issue in the proceedings and the reasons why it is not relevant, or
(d) if the producer is a claimant—an amount sufficient to meet the reasonable expenses of complying with the notice for production has not been paid, and the reasons for making the assertion, or
(e) the document has already been produced to the requesting party, or
(f) the document is, to the best of the producer’s knowledge or belief, in the possession or control of another specified person, or
(g) the producer has no knowledge of the document’s existence or location, or
(h) another objection to production and the reasons for the objection.
(3) A requesting party who wishes to oppose a notice of objection must, within 2 working days of the date on which the notice of objection was served on the requesting party, lodge, and serve on the other parties, a notice of opposition.
(4) The notice of opposition must—
(a) set out the reasons for the opposition, and
(b) attach a copy of the notice for production and the notice of objection.
(5) The Commission or the President may determine an objection to a notice for production by—
(a) setting aside the notice for production wholly or in part, or
(b) directing the documents be produced to the requesting party or the Commission, or
(c) making another order the Commission or the President thinks fit.”
Determination
Rules 39 and 41 require that a document requested in a notice for production be relevant to a fact in issue in the proceedings. The party seeking the production of documents bears the onus of showing, expressly and precisely, the apparent relevance of the documents sought to the issues in dispute.
Principles applicable to this determination were summarised by a Full Court of the Federal Court of Australia inWong v Sklavos[2014] FCAFC 120:
“The party issuing a subpoena bears the onus of demonstrating that the subpoena has a legitimate forensic purpose in relation to the issues in the proceedings: Santos Ltd v Pipelines Authority of South Australia [1996] SASC 5578; (1996) 66 SASR 38 at 52.A subpoena may be set aside if it requires the production of documents which do not have apparent relevance to the issues arising on the pleadings: Trade Practice Commission v Arnotts Ltd (No 2) [1989] FCA 248; (1989) 88 ALR 90; Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) [2010] FCA 398; (2010) 269 ALR 76 at [39]- [40]; McHugh v Australian Jockey Club Limited[No 2] [2011] FCA 724 at [13]; McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233; (2005) 221 ALR 785 at [35]; Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 558 at [17]. Other cases have used different terminology, but with essentially the same effect, for example, by requiring that, viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative (R v Barton (1981) 2 NSWLR 414 at 420), or that the material sought is reasonably likely to add in some way to the relevant evidence in the case (Spencer Motors Pty Ltd v LNC Industries Ltd (1982) 2 NSWLR 921 at 927), or that it be “on the cards” that the documents sought will materially assist the party at whose request the subpoena has been issued: Allister v The Queen (1984) 154 CLR 404 at 414; Tamawood Ltd v Habitare Developments Pty Ltd [2009] FCA 364 at [13], [35]-[38].”
The Notice as it is currently expressed would encompass a range of documents that would bear no relevance to any fact or issue in dispute in these proceedings. It has not been established, for example, that documents likely to be contained in Mr Bowmer’s personnel file, such as his employment contract, pay or leave history, would have any bearing on the current dispute.
To that extent, the Notice as it is currently expressed is too broad and ought to be set aside.
At the preliminary conference, the applicant sought to amend the Notice to request only documents pertaining to complaints in relation to Mr Bowmer’s conduct and any disciplinary action pertaining to his conduct.
The applicant says such documents would be relevant because the evidence points to a pattern of conduct on Mr Bowmer’s part. The applicant says that complaints made by other employees and disciplinary proceedings relating to Mr Bowmer’s conduct in respect of other employees would tend to corroborate the applicant’s evidence about Mr Bowmer’s conduct towards him.
Although the rules of evidence do not apply in Commission proceedings,[1] the Commission may be guided by those principles in the conduct of the proceedings that come before it. Rule 73 of the Personal Injury Commission Rules 2021 requires the Commission to bear in mind that evidence should be logical and probative, relevant to the facts in issue and issues in dispute, and that evidence based on speculation or unsubstantiated assumptions is unacceptable, and unqualified opinions are unacceptable.
[1] See s 43 of the Personal Injury Commission Act 2020.
Consistently with that approach, I note that s 97 of the Evidence Act 1995 (Cth) provides that evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way if it would not, either by itself or having regard to other evidence, have significant probative value.
I accept that evidence of other complaints about Mr Bowmer’s conduct might lend some support to a submission that the applicant’s evidence is to be preferred over Mr Bowmer’s where there is a dispute as to whether particular events were real or actually occurred.
The fact that complaints were made is, however, already established on the evidence. The statement evidence from Mr Bowmer already before the Commission confirms that complaints were made about him by at least one of the applicant’s witnesses in addition to the applicant. Mr Bowmer states, however, that such complaints were false and never substantiated.
I am cognisant that evidence of the kind the applicant is seeking to have produced has the potential to be highly prejudicial. This is particularly so, in the circumstances of this case, given that the respondent’s capacity to respond to it is limited as Mr Bowmer is no longer employed by the respondent.
Even if there were complaints which were substantiated, I do not accept that such evidence would have significant probative value. Mr Bowmer’s conduct in relation to other employees would carry little weight in determining whether the particular comments or conduct complained of by the applicant in these proceedings occurred.
It has not been suggested in the lay or medical evidence that Mr Bowmer’s conduct towards other employees was causative of the applicant’s psychological injury.
It is also not established that material falling within the more limited scope would be, in its entirety, relevant to these proceedings. Disciplinary proceedings, for example, in relation to conduct such as tardiness or absenteeism would have little to no bearing on whether particular comments were made about or towards the applicant. Sensitive personal information of other complainants which may appear in the documents would also not clearly be relevant to these proceedings.
Even if the Notice to Produce were amended to reduce the scope of the documents sought in the manner now proposed, I am not satisfied that the documents would be reasonably likely to add in some way to the relevant evidence or that it is “on the cards” that the documents sought would materially assist the applicant.
As suggested by the respondent, documents pertaining to Mr Bowmer’s conduct in respect of the applicant, may be more likely to meet that description. A notice for production within that scope is not, however, currently before me. Nor has the applicant sought to limit the scope of documents to that extent at the present time.
In all the circumstances, I am not satisfied that the relevant part of the Notice, as it currently stands, or in the amended form proposed, has a legitimate forensic purpose in relation to the issues in the proceedings. That part of the Notice is set aside.
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