Pace v State of New South Wales

Case •

[2015] NSWIC 7

•

24 June 2015

No judgment structure available for this case.

Industrial Court


New South Wales

Medium Neutral Citation: Pace v State of New South Wales & Ors [2015] NSWIC 7
Hearing dates:26 May 2015
Date of orders: 24 June 2015
Decision date: 24 June 2015
Before: Kite AJ
Decision:

The Court makes the following orders and directions:

 

(1) As to the notice served on the first respondent:

 

(a) Paragraphs 1-3, 5-12, 14-16 and 20-25 are set aside.

 

(b) Paragraph 4 is set aside in part to the extent it seeks documents before 1 September 2010.

 

(c) Paragraphs 18 and 19 are set aside in part to the extent they seek documents prior to 6 May 2010.

 

(d) As to paragraph 13, production to the Court is required. Leave is reserved to argue questions of privilege on application for access.

 

(2) The notice served on the third respondent is set aside in the same way and to the same extent as set out in Order (1).

 

(3) I direct the first respondent to bring in short minutes of order as to both notices to produce in accordance with this decision.

 (4) Costs are reserved.
Catchwords: PROCEDURE – notices to produce – application to set aside – interests of justice – oppression – lack of legitimate forensic purpose - apparent relevance – statutory privilege given to person served under UCPR 1.9(3) and dictionary– evidentiary burden: Jurisdiction – power of Industrial Court to exercise powers of Industrial Commission – relevance to test of legitimate forensic purpose
Legislation Cited: Civil Procedure Act 2005
Evidence Act 1995
Industrial Relations Act 1996
Public Sector Employment and Management Act 2002
Technical and Further Education Commission Act 1990
Technical and Further Education Commission Amendment (Staff Employment) Act 2011
Uniform Civil Procedure Rules 2005
Cases Cited: Alf Pace v Managing Director, TAFE Commission [2011] NSWIRComm 1052
Attorney General for New South Wales v Dylan Chidgey [2008] NSWCCA 65; (2008) 1821 Crim R 536
Azzi and Ors v Volvo [2006] NSWSC 283
A v Z [2007] NSWSC 899; (2007) 212 FLR 255
Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1151
Commissioner of Police v Hughes [2009] NSWCA 306
Dorajay Pty Limited v Aristocrat Leisure Limited [2005] FCA 588
Esso Australia Resources Limited v Commission of Taxation for the Commonwealth of Australia [1998] HCA 67; (1998) 201 CLR 49
Grant v Dawns [1976] HCA 63; (1976) 135 CLR 674
ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307
In the matter of Beechworth Land Estates Pty Ltd (admins apptd) and Griffith Estates Pty Ltd (admins apptd) [2014] NSWSC 1743
Jack Brabham Engines Limited v Beare [2010] FCA 35
Liristis v Gadelrabb [2006] NSWSC 441
Margaret Lesley Marshall and Kim Neil Marshall v Michael Prescott (No.2). [2012] NSWSC 619
National Employers Mutual General Insurance Association v Waind [1978] 1 NSWLR 372
Pace v Technical and Further Education Commission t/as TAFE Commission [2014] NSWIRComm 24
Packer v The Greater Murray Area Health Service [2000] NSWIRComm 149
Portal Software v Bodsworth [2005] NSWSC 1115
Singtel Optus Pty Ltd v Weston [2011] NSWSC 1083
Taudevin v Egis Consulting Australia Pty Limited and the Commonwealth (No 1) [2001] NSWIRComm 340
Taylor v O'Neill (t/as Marengo (a firm) [2012] NSWSC 626
Trade Practices Commission v Arnotts [1989] FCA 248; (1989) 88 ALR 90
Category:Procedural and other rulings
Parties: Alf Pace (Applicant)
State of New South Wales (First Respondent)
Technical and Further Education Commission (Second Respondent)
Managing Director, Technical and Further Education Commission (Third Respondent)
Representation:

Counsel:
V Heath of counsel (Applicant)
Y Shariff of counsel (First and Third Respondents)
M Easton of counsel (Second Respondent)

  Solicitors:
Etheringtons Solicitors (Applicant)
Crown Solicitor’s Office (First and Third Respondents)
Minter Ellison Lawyers (Second Respondent)
File Number(s):IRC 537 of 2014

Interlocutory Judgment

  1. In this matter the applicant has served on each of the respondents a notice to produce documents. The first and third respondents seek to have large parts of the notices set aside.

  2. The notice served on the Technical and Further Education Commission t/as TAFE Commission (“second respondent”) is in identical terms to that served on the State of New South Wales (“first respondent”). The applicant and the second respondent have agreed that the resolution of the issues raised by the first respondent is to apply with equal force to the notice served on the second respondent.

  3. I note that there has been informal production of a number of documents to the applicant. I understand that the provision of the documents is to be without prejudice to the position of the parties on the motion to set aside parts of the notices to produce or to their rights at trial. It is therefore necessary to decide each of the issues raised.

The Notices of Motion

  1. The first respondent moved to set aside all but paragraph 17 of the applicants notice to produce served on 5 May 2015.

  2. The Managing Director, Technical and Further Education Commission (“third respondent”) moved to set aside all 21 paragraphs of the notice to produce served on 5 May 2015.

  3. Counsel for the first and third respondents submitted that the parts of the notice to produce objected to:

  1. lack a legitimate forensic purpose;

  2. do not comply with the requirements of r 21.10 of the Uniform Civil Procedure Rules 2005 (“UCPR”);

  3. are not relevant to a fact in issue;

  4. constitute an abuse of process; and/or

  5. are oppressive

  1. The respondents moved to set aside pursuant to rr 21.10, 21.11(1) and 33.4 of the UCPR.

  2. On the hearing of the motion, the applicant made clear that he relied on UCPR r 34.1 to support his notices to produce. It had earlier appeared that the applicant relied on UCPR r 21.10. The applicant also corrected an error in the selection of the form he had used by filing in court, without objection, identical notices to produce in accordance with UCPR Form 24. It was also agreed between the parties that paragraphs 10, 11 and 12 of the notice to the first respondent (and the equivalent paragraphs in the notice to third respondent) should be read as though the words “tending to show” were replaced by the word “showing”. The applicant’s solicitors also agreed, in their letter dated 18 May 2015, to limit paragraph 18 to the period from 1 January 2008.

Relevant Rules

  1. It is convenient to set out the rules referred to by the parties:

21.10 Notice to produce for inspection by parties

(cf SCR Part 23, rule 2 (1); DCR Part 22, rule 2 (1), (1A) and (2))

(1) Party A may, by notice served on party B, require party B to produce for inspection by party A:

(a) any document or thing that is referred to in any originating process, pleading, affidavit or witness statement filed or served by party B, and

(b) any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue.

(2) A notice to produce may specify a time for production of all or any of the documents or things required to be produced.

21.11 Production under notice to produce

(cf SCR Part 23, rule 2 (3) and (4); DCR Part 22, rule 2 (3) and (4))

(1) Unless the court orders otherwise, party B must, within a reasonable time after being served with a notice to produce:

(a) produce for party A’s inspection such of the documents or things referred to in the notice (other than privileged documents) as are in party B’s possession, and

(b) serve on party A, in respect of any document that is not produced, a notice stating:

(i) that the document is a privileged document, or

(ii) that the document is, to the best of party B’s knowledge, information and belief, in the possession of a person identified in the notice, or

(iii) that party B has no knowledge, information or belief as to the existence or whereabouts of the document.

(2) For the purposes of subrule (1):

(a) unless party B establishes to the contrary, 14 days or longer after service of the notice is to be taken to be a reasonable time, and

(b) unless party A establishes to the contrary, less than 14 days after service of the notice is to be taken to be less than a reasonable time.

…

33.4 Setting aside or other relief:

(cf SCR Part 37, rule 4)

(1) The court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it.

(2) An application under subrule (1) must be made on notice to the issuing party.

(3) The court may order that the applicant give notice of the application to any other party or to any other person having a sufficient interest.

34.1 Notice to produce to court

(cf SCR Part 36, rule 16; DCR Part 28, rule 18; LCR Part 23, rule 9)

(1) A party may, by notice served on another party, require the other party to produce to the court, or to any examiner:

(a) at any hearing in the proceedings or before any such examiner, or

(a1) at any time fixed by the court for the return of subpoenas, or

(b) by leave of the court, at some other specified time,

any specified document or thing.

(2) The other party must comply with a notice to produce:

(a) by producing the notice or a copy of it, and the document or thing, to the court, or to the examiner authorised to take evidence in the proceeding as permitted by the court, at the date, time and place specified for production, or

(b) by delivering or sending the notice or a copy of it, and the document or thing, to the registrar at the address specified for the purpose in the notice, so that they are received not less than 2 clear days before the date specified in the notice for production.

  1. I would add for completeness r 34.2 of the UCPR. It provides:

34.2 Production under notice to produce to court

(cf SCR Part 36, rule 16; DCR Part 28, rule 18; LCR Part 23, rule 9)

(1) Unless the court orders otherwise, the other party must produce the document or thing in accordance with the notice to produce, without the need for any subpoena for production, if the document or thing is in his or her possession.

…

(3) Except by leave of the court, a party may not search for, or inspect, any document or thing that has been produced by another party under this rule but not admitted into evidence.

The Notices to Produce

  1. The notice directed to the first respondent required it to produce:

Applicant’s employment records

1. All documents referring or relating to any transfer of the applicant’s employment from the first respondent to the second respondent in or about 1991.

2. All documents referring or relating to any transfer of the applicant’s employment from the second respondent to the first respondent in or about 2006.

3. All documents comprising the full personnel record of the applicant of his employment in any capacity by the first respondent or any of its emanations, statutory authorities or statutory corporations or the second respondent from 1981 to date.

Employee Transfer Act and stay application

4. All statements and announcements published on or before 1 December 2011 to staff employed in the TAFE division of the Government Service in respect of the Technical and Further Education Commission Amendment (Staff Employment) Act 2011.

5. All documents containing, recording or relating to instructions to Mr Bruce Miles in respect of the stay application made on 15 November 2011 in proceedings IRC 1723 of 2011 in respect of orders made in IRC 1087 of 2010.

6. All documents containing, recording or relating to instructions to Mr Bruce Miles in respect of the Technical and Further Education Commission Amendment (Staff Employment) Act 2011.

7. All documents identifying or tending to identify the persons responsible for the conduct of proceedings IRC 1723 of 2011 and IRC 1087 of 2010, including for the giving of any instructions in respect thereto.

8. All documents containing, recording or relating to instructions to Mr Bruce Miles in respect of the giving of undertakings in respect of the applicant or his employment in proceedings IRC 172 of 2011 or IRC 1087 of 2010.

9. All documents containing, recording or relating to advice to or by Mr Bruce Miles in respect of the giving of undertakings in respect of the applicant or his employment in proceedings IRC 172 of 2011 or IRC 1087 of 2010.

10. All documents containing, recording or [showing] the knowledge or belief of the persons responsible for the conduct of proceedings IRC 1723 of 2011 and IRC 1087 of 2010, including for the giving of any instructions in respect thereto, as to the effect if any of the Technical and Further Education Commission Amendment (Staff Employment) Act 2011 on proceedings IRC 1723 of 2011 or IRC 1087 of 2010 or the operation of any orders made in those proceedings.

11. All documents containing, recording or [showing] the knowledge or belief of the persons responsible for the conduct of proceedings IRC 1723 of 2011 and IRC 1087 of 2010, including for the giving of any instructions in respect thereto, as to the effect if any of the Technical and Further Education Commission Amendment (Staff Employment) Act 2011 on the applicant’s employment.

12. All documents containing, recording [showing] the knowledge or belief of the persons responsible for the conduct of proceedings IRC 1723 of 2011 and IRC 1087 of 2010, including for the giving of any instructions in respect thereto, as to intended date of commencement of the Technical and Further Education Commission Amendment (Staff Employment) Act 2011 on proceedings IRC 1723 of 2011 or IRC 1087 of 2010.

13. All documents containing or recording the departmental and ministerial arrangements for the Technical and Further Education Commission Amendment (Staff Employment) Act 2011 to be proclaimed to commence on 1 December 2011.

The investigation

14. All documents containing or recording instructions to Mr Petal Mulhall to investigate the applicant and any complaints about or by the applicant including any document with which Mr Mulhall was briefed.

15. All documents containing any witness statements, records of evidence, file notes or memos of any evidence obtained by Mr Mulhall or supplied to Mr Mulhall by any person or by any means to Mr Peter Mulhall to investigate the applicant and any complaints about or by the applicant or in the course of any such investigation.

16. All documents containing, recording or relating to the complaint by the applicant about the conduct of Andrew Olson in about November 2009, including without limitation relating to any action taken in respect of the applicant’s complaint.

workers compensation

17. All documents relating to the applicant’s applications for workers compensation, whether periodic or lump sum, including any notice of injury, medical report, determination, judgment or order.

Requests for suitable duties or employment

18. All documents containing or recording requests or applications by or on behalf of the applicant for suitable duties, employment or re-employment or access to facilities to make applications for suitable duties, employment or re-employment.

19. All documents from May 2010 to date containing or recording any instructions to any officers of the first or second respondent or any TAFE Institute or other administrative unit of TAFE relating to the employment, re-employment or further employment of the applicant or any correspondence with him.

Previous injuries

20. All documents relating to complaints by the applicant from 1995 to May 2010 about tools and materials not being provided for the applicant’s classes and the applicant not being provided with personal protective equipment, including without limitation relating to any action taken in respect of such complaint.

21. All documents relating to complaints by the applicant about being given an excessive workload in 1995 and 1996, including without limitation relating to any action taken in respect of such complaint.

22. All documents relating to a dispute with the applicant in or about 1999 about the re-crediting of his sick leave for periods of workers compensation, including a copy of the determination or judgment in respect thereto.

23. All documents relating to the complaint by the applicant of receiving an electric shock from a projector in about March 1998, including without limitation relating to any action taken in respect of such complaint.

24. All documents relating to referral for assessment of the applicant by Health Quest including any applications, reports, medical reports, memos, requests, appeals, applications for review, applications for further assessment and file notes.

25. All documents relating to any consideration of the applicant for medical retirement or for the giving of any direction to resign or for any other determination of medical unfitness for duty.

  1. The notice directed to the third respondent required him to produce:

Employee Transfer Act and stay application

1. All statements and announcements published on or before 1 December 2011 to staff employed in the TAFE division of the Government Service in respect of the Technical and Further Education Commission Amendment (Staff Employment) Act 2011 but deployed to the second respondent.

2. All documents containing, recording or relating to instructions to Mr Bruce Miles in respect of the stay application made on 15 November 2011 in proceedings IRC 1723 of 2011 in respect of orders made in IRC 1087 of 2010.

3. All documents containing, recording or relating to instructions to Mr Bruce Miles in respect of the Technical and Further Education Commission Amendment (Staff Employment) Act 2011.

4. All documents identifying or tending to identify the persons responsible for the conduct of proceedings IRC 1723 of 2011 and IRC 1087 of 2010, including for the giving of any instructions in respect thereto.

5. All documents containing, recording or relating to instructions to Mr Bruce Miles in respect of the giving of undertakings in respect of the applicant or his employment in proceedings IRC 172 of 2011 or IRC 1087 of 2010.

6. All documents containing, recording or relating to advice to or by Mr Bruce Miles in respect of the giving of undertakings in respect of the applicant or his employment in proceedings IRC 172 of 2011 or IRC 1087 of 2010.

7. All documents containing, recording or tending to show the knowledge or belief of the persons responsible for the conduct of proceedings IRC 1723 of 2011 and IRC 1087 of 2010, including for the giving of any instructions in respect thereto, as to the effect if any of the Technical and Further Education Commission Amendment (Staff Employment) Act 2011 on proceedings IRC 1723 of 2011 or IRC 1087 of 2010 or the operation of any orders made in those proceedings.

8. All documents containing, recording or tending to show the knowledge or belief of the persons responsible for the conduct of proceedings IRC 1723 of 2011 and IRC 1087 of 2010, including for the giving of any instructions in respect thereto, as to the effect if any of the Technical and Further Education Commission Amendment (Staff Employment) Act 2011 on the applicant’s employment.

9. All documents containing, recording or tending to show the knowledge or belief before 1 December 2011 of the persons responsible for the conduct of proceedings IRC 1723 of 2011 and IRC 1087 of 2010, including for the giving of any instructions in respect thereto, as to intended date of commencement of the Technical and Further Education Commission Amendment (Staff Employment) Act 2011 on proceedings IRC 1723 of 2011 or IRC 1087 of 2010

10. All documents containing or recording the second or third respondent’s arrangements or any departmental and ministerial arrangements for the Technical and Further Education Commission Amendment (Staff Employment) Act 2011 to be proclaimed to commence on 1 December 2011.

The investigation

11. All documents containing or recording instructions to Mr Petal Mulhall to investigate the applicant and any complaints about or by the applicant including any document with which Mr Mulhall was briefed.

12. All documents containing any witness statements, records of evidence, file notes or memos of any evidence obtained by Mr Mulhall or supplied to Mr Mulhall by any person or by any means to Mr Peter Mulhall to investigate the applicant and any complaints about or by the applicant or in the course of any such investigation.

13. All documents containing, recording or relating to the complaint by the applicant about the conduct of Andrew Olson in about November 2009, including without limitation relating to any action taken in respect of the applicant’s complaint.

Requests for suitable duties or employment

14. All documents containing or recording requests or applications by or on behalf of the applicant for suitable duties, employment or re-employment or access to facilities to make applications for suitable duties, employment or re-employment.

15. All documents from May 2010 to date containing or recording any instructions to any officers of the first or second respondent or any TAFE Institute or other administrative unit of TAFE relating to the employment, re-employment or further employment of the applicant or any correspondence with him.

Previous injuries

16. All documents relating to complaints by the applicant from 1995 to May 2010 about tools and materials not being provided for the applicant’s classes and the applicant not being provided with personal protective equipment, including without limitation relating to any action taken in respect of such complaint.

17. All documents relating to complaints by the applicant about being given an excessive workload in 1995 and 1996, including without limitation relating to any action taken in respect of such complaint.

18. All documents relating to a dispute with the applicant in or about 1999 about the re-crediting of his sick leave for periods of workers compensation, including a copy of the determination or judgment in respect thereto.

19. All documents relating to the complaint by the applicant of receiving an electric shock from a projector in about March 1998, including without limitation relating to any action taken in respect of such complaint.

20. All documents relating to referral for assessment of the applicant by Health Quest including any applications, reports, medical reports, memos, requests, appeals, applications for review, applications for further assessment and file notes.

21. All documents relating to any consideration of the applicant for medical retirement or for the giving of any direction to resign or for any other determination of medical unfitness for duty.

  1. It will be apparent that the notices are comprehensive. I observe that the exigencies of modern litigation have led to changes in relation to pre-trial document identification and production. The rules of procedure have been amended to limit the availability of discovery to classes agreed by the parties or determined by the court. As Brereton J observed in Azzi v Volvo [2006] NSWSC 283 (“Azzi”) at [10]:

The purpose of adopting this approach to discovery was to reduce the burdens of unlimited general discovery, by confining its scope through requiring that the classes of documents of which discovery would be required be identified by the parties and agreed by them and, if not, then determined by the court.

  1. It is important therefore to be on guard against a notice to produce becoming a proxy for discovery. More particularly it is important that the use of the procedure does not result in an injustice. That, as Beaumont J expressed it in Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 at 102, requires consideration of not only the reasons of the serving party in issuing the notice but consideration of the impact on the receiving party. It is a balancing exercise. That exercise is informed also by the requirements of s 56 of the Civil Procedure Act 2005.

The Submissions of the First and Third Respondents

  1. Mr Shariff, who appeared for the first and third respondents, referred to the decision in Azzi. In that case his Honour observed at [4] that it is now established that a notice to produce of the type in issue here may be set aside in circumstances and on grounds applicable to the setting aside of subpoenas. Among the authorities Brereton J referred to in support of this proposition was an earlier ex tempore decision of his Honour in Portal Software Pty Ltd v Bodsworth [2005] NSWSC 1115. In that case his Honour said at [10]:

Although a notice to produce is not a subpoena, the obligations which a notice to produce imposes are similar to those imposed by a subpoena, and considerations which apply to the setting aside of subpoenas are applicable to notices to produce [Bailey v Beagle Management Pty Ltd [2001] FCA 60; (2001) 105 FCR 136; Highfields Preparatory and Kindergarten School Pty Ltd v Simpson(NSWSC, Master Greenwood, 22 August 1985, unreported)]. In Highfields, Master Greenwood said “The law relating to the production under and the setting aside of a subpoena, relates equally to a notice to produce".

  1. As to the grounds for setting aside a notice to produce (or a subpoena) his Honour said in Azzi at [4]-[6]:

[4] …Those grounds include, relevantly that the subpoena seeks discovery or further discovery from a party [Commissioner for Railways v Small (1938) 38 SR (NSW) 564; National Employers’ Mutual General Insurance Association Ltd v Waind [1978] 1 NSWLR 372;Finnie v Dalglish [1982] 1 NSWLR 400]; that the subpoena is oppressive [Commissioner for Railways v Small; Senior v Holdsworth; Ex parteIndependent Television News Ltd [1976] QB 23; Finnie v Dalglish], or that the subpoena calls for production of documents which have no apparent relevance to the issues in the proceedings [Trade Practices Commission v Arnotts Ltd (1989) 21 FCR 306; Hatton v Attorney-General (2000) 158 FLR 31; Portal v Bodsworth [20]-[21]]. The grounds which I have stated are far from exclusive, and are all but instances of the court's power to control its process, the power to set aside a subpoena being an instance of the court's inherent jurisdiction to control its process in the case of an abuse of process. The traditional categories of cases in which subpoenas might be set aside are not the only cases in which the court will intervene, but particular examples of a broad class of case in which the court will set aside a subpoena as an abuse of process [Botany Bay Instrumentation Pty Limited v Stewart(1984) 3 NSWLR 98, 100 – 101].

[5] In this case, the grounds of oppression, attempts to obtain discovery, and, irrelevance, at least to some extent, overlap.

[6] The exercise of deciding whether a subpoena is or is not oppressive is a multifactorial balancing one. Where the documents called for have a high degree of apparent relevance to issues in the proceedings, the court will not shrink from requiring third parties to undertake considerable burdens to search for and produce such documents. On the other hand, where the documents are of slight or little apparent relevance, the extent of the burden cast on the party called to produce documents will weigh much more heavily against allowing the subpoena to stand [Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corp Ltd [1984] 1 NSWLR 710].

  1. Mr Shariff then analysed each of the paragraphs in the notice in light of these principles.

  2. Ms Heath, who appeared for the applicant, agreed that the principles applicable to subpoenas now applied to notices to produce of this type. The applicant accepted that he bore an onus to demonstrate the documents have a legitimate forensic purpose, citing Commissioner of Police v Hughes [2009] NSWCA 306 at [76].

  3. Counsel referred to authorities on what constitutes “legitimate forensic purpose” and noted that one aspect which did not appear to be settled was whether the document(s) would assist the case of the party seeking production. In that regard Ms Heath referred to Attorney General (NSW) v Dylan Chidgey [2008] NSWCA 65; 1821 Crim R 536 at [11]; A v Z [2007] NSWSC 899; (2007) 212 FLR 255 at [4]; Commissioner of Police v Hughes [2009] NSWCA 306 at [90]; Taylor v O’Neill (t/as Marengo) (a firm) [2012] NSWSC 626 at [14]; ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 at [16]-[18] and National Employers Mutual General Insurance Association v Waind [1978] 1 NSWLR 372 at 384-5.

  4. The applicant submitted that it was not necessary to resolve this issue in this case. I agree.

  5. Ms Heath also submitted that the test of legitimate forensic purpose applied to the whole notice and not each paragraph, relying upon the judgement of Brereton J in Liristis v Gadelrabb [2006] NSWSC 441 (Liristis). I do not accept that the judgment stands for that proposition. In that case the notice contained two paragraphs. His Honour allowed one and set aside the other. The point made in Liristis is that it is not necessary for the serving party to show that documents exist in each category in order for the notice to meet the test.

  6. Ms Heath submitted that the test of relevance on the question of legitimate forensic purpose was not the same as that to be applied in deciding whether to admit evidence at trial. It is a question of whether it has apparent or arguable relevance: Trade Practices Commission v Arnotts [1989] FCA 248; (1989) 88 ALR 90 at 102-3; Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 588 at [16]-[18], [30]; Jack Brobham Engines Ltd v Beare [2010] FCA 35; In the Matter of Beechworth Land Estates Pty Ltd (admins apptd) and Griffith Estates Pty Ltd (admins apptd) [2014] NSWSC 1743 at [12].

  7. Counsel submitted that the test:

(i) involves consideration of the matter from the standpoint of the party issuing the subpoena: Trade Practices Commission v Arnott’s; Dorajay v Aristocrat Leisure; and

(ii) is not on the balance of probabilities but a lower threshold variously described as “on the cards’; Alister v R (1984) 154 CLR 404 at 414, or “could throw light on the issues in the main case”; Trade Practices Commission v Arnott’s; Portal Software International Pty Ltd at [25]; “some concrete ground for belief”, ICap Australia Pty Ltd v BGC Partners (Australia) Pty Ltd.

  1. Ms Heath also submitted that the evidence necessary to justify a requirement for production may not be much. Common practice or experience may also suffice to provide a reasonable basis for expectation.

  2. As to “fishing” the applicant submitted:

(i) the party seeking production is not required to prove that documents exist;

(ii) it is legitimate to seek further evidence on a matter on which the party already has some evidence or to show that no such documents exist; (Margaret Lesley Marshall and Kim Neil Marshall v Michael Prescott (No 2) [2012] NSWSC 619 at [57] and [61]

  1. Counsel also submitted that it was not necessary that the documents go to the principal issues in the case; sub-sets of issues or sub-issues (including credit) will suffice to found the requisite connection: Margaret Lesley Marshall and Kim Neil Marshall v Michael Prescott (No 2) at [58]. In this context the text of apparent relevance begins with, but is not necessarily confined to, the issues delineated by the pleadings or other statements of matters in dispute.

Issues in the Main Case

  1. The proceedings were commenced by an application for declarations. By a (Further) Amended Application filed on 8 April 2015 the applicant claims orders and declarations of right:

1. in aid of enforcement of orders of the Commission in proceedings IRC 1087 of 2010 reinstating the applicant to employment in his former position with continuity of service;

2. varying, vacating or setting aside from the beginning a stay of the orders of the Commission in proceedings IRC 1087 of 2010 ordered by the Court in proceedings IRC 1723 of 2011;

3. enforcing the applicant’s contract or contracts of employment

4. consequential and further orders.

  1. The Amended Application particularises the orders sought as follows:

  1. That proceedings IRC 1723 of 2011 be reinstated and restored to the list for the purpose of making orders finally disposing of those proceedings.

  2. That these proceedings be consolidated with proceedings IRC 1723 of 2011, alternatively that proceedings IRC 1723 of 2011 be listed with these proceedings and there be an order that evidence and orders in one be evidence and orders in the other.

  3. Pursuant to UCPR 36.16(3), 36.15(1) or the Court’s implied powers, that the stay order made on 15 November 2011 in proceedings IRC 1723 of 2011 be varied or vacated or set aside from the beginning with the effect that the orders made on 18 October 2011 in proceedings IRC 1087 of 2010 have operative effect not later than 15 November 2011.

  4. Declarations of right pursuant to s 154 Industrial Relations Act 1996 that:

  1. the applicant’s contract of employment with the first respondent continued after 20 September 2010 and remained on foot immediately before 1 December 2011.

  2. further and alternatively, on their true construction, the effect of the orders made on 18 October 2011 in proceedings IRC 1087 of 2010 was that

  1. the applicant’s contract of employment with the first respondent was restored with effect that it was on foot immediately before 1 December 2011.

  2. further and alternatively, the applicant’s nexus of employment with the first respondent was restored with effect before 1 December 2011.

  3. the continuity of the applicant’s employment with the first respondent was not broken on 20 September 2010.

  4. the applicant was reinstated to his employment with the first respondent with effect not later than 15 November 2011 and with continuity of his service and all his rights, entitlements, benefits and privileges of employment without interruption.

  1. immediately before 1 December 2011 the applicant was a person employed under Chapter 1A of the Public Sector Employment and Management Act 2002 in the TAFE Commission Division of the Government Service and, therefore, an existing staff member within the meaning of cl 13 of Part 5 of Schedule 4 of the Technical and Further Education Commission Act 1990.

  2. the applicant was transferred to the employment of the second respondent with effect on and from 1 December 2011.

  3. by operation of law, a contract of employment exists between the applicant and the second respondent on and from 1 December 2011 and is and remains on foot.

  4. further and alternatively, the applicant’s contract of employment with the first respondent at all material times was, is and remains on foot.

  5. the applicant is entitled to performance of his contract of employment by the first respondent including the provision of work and payment of consideration and provision of all his rights, entitlements, benefits and privileges of employment with continuity of his service.

  6. the applicant is entitled to performance of his contract of employment by the second respondent including the provision of work and payment of consideration and provision of all his rights, entitlements, benefits and privileges of employment with continuity of his service.

  7. the applicant is entitled to be paid and provided by the first respondent on and from 15 November 2011, all salary, superannuation and other emoluments and any allowances, leave, benefits, services and privileges pertaining to his position as a full time teacher together with interest and to retain all seniority, continuity of service, long service leave and other entitlements together with interest thereon, provided the applicant is to give a credit for any periodic workers compensation benefits received in lieu of salary.

  8. further and alternatively, the applicant is entitled to be paid and provided by the second respondent on and from 1 December 2011, all salary, superannuation and other emoluments and any allowances, leave, benefits, services and privileges pertaining to his position as a full time teacher together with interest and to retain all seniority, continuity of service, long service leave and other entitlements together with interest thereon, provided the applicant is to give a credit for any periodic workers compensation benefits received in lieu of salary.

  9. the respondents are, or each of them is, estopped from denying that the applicant’s employment with the first defendant was reinstated with effect from, at least, 15 November 2011 and that the employment of the applicant by the first respondent is to be taken not to have been broken by his dismissal.

  1. The grounds and reasons in support of the claims are specified in some 64 paragraphs contained in the Amended Application. A ground alleging the invalidity of a direction to resign is supported by a further 17 paragraphs of particulars.

  2. At the time of filing the Amended Application the applicant also filed a document entitled Applicant’s Outline of Contentions (“AOC”) consisting of 69 paragraphs. In response, the first and third respondents filed a document outlining their “Grounds of Opposition” contained in 26 paragraphs.

  3. The second respondent filed its “Notice of Contentions” consisting of 9 paragraphs.

  4. The applicant by letter dated 5 May 2015 sought further and better particulars of the first and third respondents’ contentions. The first and third respondents replied by letter dated 14 May 2015, noting that the contentions in their Grounds of Opposition were not pleadings, but nevertheless responding to the requests.

  5. I regard these documents as informing the Court of the issues arising in this case. It is not necessary to set out the detail of these contentions and particulars. To the extent necessary I will refer to them when dealing with the individual paragraphs of the notices to produce.

  6. I note that by letters dated 14 May 2015 each of the first and third respondents advised the applicant of their objections to the respective Notices to Produce. The applicant responded by letters dated 18 May 2015. I have had regard to the arguments advanced in the correspondence on behalf of each party in considering the issues arising on the motion.

Background

  1. Before turning to the individual categories of documents I should note that the background to the proceedings was set out in some detail by Boland AJ in Pace v Technical and Further Education Commission t/as TAFE Commission [2014] NSWIRComm 24 (“Pace No 2”) at [2]-[8]. His Honour stated :

[2] Mr Pace was employed by the Government of New South Wales in the TAFE Commission Division of the Government Service as a TAFE teacher in carpentry and had been so employed since 1983. At the time of his dismissal, he was working at the Nirimba College of his employer. His employment was governed by the Technical and Further Education Commission Act 1990 (“the TAFE Commission Act”) and the Public Sector Employment and Management Act 2002 (“the PSEM Act”). It will be seen this statutory scheme applied until 1 December 2011.

[3] The applicant was dismissed from his employment on 20 September 2010. He commenced proceedings in the Industrial Relations Commission of New South Wales under s 84 of the IR Act claiming that he had been unfairly dismissed. Section 84 provides:

84 Application for remedy by dismissed employee

(1) If an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under this Part.

(2) An application may be made on behalf of the employee by an industrial organisation of employees.

(3) An industrial organisation may make one application on behalf of a number of employees who were dismissed at the same time or for related reasons. However, this subsection does not prevent the Commission from hearing a number of applications under this Part together or individually.

(4) An application may be made under this Part even though the applicant does not specify the nature of the remedy sought or requests compensation only. However, this subsection does not affect the requirement under this Part that compensation is available only if the Commission considers that reinstatement or re-employment would be impracticable.

[4] The unfair dismissal proceedings were the subject of an arbitration hearing before Commissioner MacDonald, who handed down his decision in respect of the claim on 18 October 2011: Alf Pace v Managing Director, TAFE Commission [2011] NSWIRComm 1052. The Commissioner found substantive unfairness and made the following orders:

(a) Mr Alf Pace is to be reinstated by the managing Director, TAFE Commission into his former position occupied by him immediately prior to his dismissal.

(b) The employment of Mr Pace is to be taken not to have been broken by his dismissal.

(c) The orders of the Commission shall take effect within twenty-eight days from the date of this Decision.

[5] The respondent in the proceedings before MacDonald C was identified as "the Managing Director, TAFE Commission as Division Head of the TAFE Commission Division of the Government Service"). The proper respondent, at the time however, was the Government of New South Wales - TAFE Commission Division of the Government Service (see ss 4A, 4B and 4C PSEM Act and Schedule 1 to that Act). The respondent sought to appeal the decision of the Commissioner and filed papers to that effect on or about 8 November 2011. On 15 November 2011, the Commission ordered a stay of the implementation of the orders of MacDonald C pending the finalisation of the appeal.

[6] The TAFE Commission Act was amended with effect from 1 December 2011. Before addressing the amendment and its effect it is useful to refer to some of the history of the relevant legislation. This history was recounted in the affidavit of Clare Archibald, Principal Industrial Officer, employed in the Department of Education and Communities:

5. The TAFE Commission was created on 1 February 1991, when the Technical and Further Education Commission Act 1990 (the ‘TAFE Act’) commenced operation. Section 15 of the Act contained the power for the TAFE Commission to employ staff.

6. On 17 March 2006 the Public Sector Employment Legislation Amendment Act 2006 came into effect and repealed section 15 of the TAFE Act so as to remove the TAFE Commission’s power to employ any person. Instead, the TAFE Commission as a corporation was required to undertake its functions through the use of persons employed by other legal entities.

7. On that date, all former employees of the TAFE Commission became either employees of the TAFE Commission Division of the Government Service (for teachers and educational staff) or employees of what was then the Department of Education and Training (for “TAFE Administrative staff”, as that term is defined in clause 20 of schedule 4 of the Public Sector Employment and Management Act 2002).

8. From 17 March 2006, the TAFE Commission could no longer employ any employees.

…

9. On 1 December 2011 the TAFE Commission was once again granted the power to employ staff. The new power arose from amendments made by the Technical and Further Education Commission Amendment (Staff Employment) Act 2011.

10. Immediately on becoming a corporation that employed persons, the TAFE Commission became a National System Employer, as defined by the Fair Work Act.

[7] The relevant amendments made to the TAFE Commission Act by the Technical and Further Education Commission Amendment (Staff Employment) Act 2011 ("the amending Act") were as follows:

(1) under cl 2 of Sch 1 of the amending Act, a new definition of "member of staff (or staff member)" was inserted into s 3(1) of the TAFE Commission Act, to mean, "a member of staff of the TAFE Commission employed under section 15";

(2) under cl 4 of Sch 1 of the amending Act, a new s 15 was inserted into the TAFE Commission Act as follows:

15 Employment of staff

The TAFE Commission may employ such staff as it requires to exercise its functions;

(3) under cl 14 of Sch 1 of the amending Act, a new Pt 5 of Sch 4 was inserted into the TAFE Commission Act, which introduced consequential and transitional provisions arising from the amendments to the TAFE Commission Act. The relevant provisions are set out below:

13 Definitions

In this Part:

commencement date means the date on which section 15 was inserted by the Technical and Further Education Commission Amendment (Staff Employment) Act 2011.

existing staff member means:

(a) a person who, immediately before the commencement date, was employed under Chapter 1A of the Public Sector Employment and Management Act 2002 in the TAFE Commission Division of the Government Service, or

...

transferred staff member means an existing staff member who is transferred to the employment of the TAFE Commission by operation of clause 14.

...

14 Transfer of existing staff members to employ of TAFE Commission

On the commencement date, each existing staff member is transferred to the employment of the TAFE Commission.

15 Employment arrangements for transferred staff members

(1) The TAFE Commission is to take such action as is available to it as an employer of a transferred staff member to ensure that the provisions of this clause are implemented.

(2) During the transitional period, the employment of a transferred staff member with the TAFE Commission is to be on the same terms and conditions relating to the following matters as applied immediately before the commencement date to the person's employment as an existing staff member:

(a) hours of work,

(b) salary,

(c) shift, overtime and penalty rates,

(d) allowances,

(e) leave (other than extended leave or long service leave).

(3) A transferred staff member:

(a) retains any rights to annual leave, extended or long service leave, sick leave, and other forms of leave, accrued or accruing in his or her employment as an existing staff member, and

(b) is not entitled to receive any payment or other benefit merely because the member ceases to be in the employment from which the member was transferred, and

(c) is not entitled to claim, both under this Act or any other Act, dual benefits of the same kind for the same period of service.

(4) Without limiting subclause (3), a transferred staff member is not, despite any other provision of this or any other Act, entitled to elect, because of that transfer, to be paid the money value of any extended or annual leave that the member accrued in the employment from which the member was transferred.

16 Jurisdiction of Industrial Relations Commission

(1) On and from the commencement date, the Industrial Relations Commission has no jurisdiction to determine an industrial matter (within the meaning of the Industrial Relations Act 1996) relating to a member of staff if:

(a) the Fair Work Act 2009 of the Commonwealth has excluded the application of State industrial laws (within the meaning of section 26 of that Act) in relation to the matter, or

(b) the matter is an appeal to which Part 7 of Chapter 2 of the Industrial Relations Act 1996 applies.

(2) This clause does not affect the jurisdiction of the Industrial Relations Commission in relation to a matter that is the subject of an application under section 146B of the Industrial Relations Act 1996.

[8] The appeal from the decision of MacDonald C was sought to be withdrawn by the appellant on 14 February 2012. At the time it would appear no application was made by Mr Pace to seek enforcement of the orders made by the Commissioner. The present application was not filed until late 2013. Nor was any application made to have the stay order lifted, although I note from the file in Matter No IRC 1723 of 2011 (the Appeal file) the Commission gave leave to discontinue the appeal on 16 February 2012 and the parties were advised accordingly.

  1. With the benefit of this more detailed explanation provided by his Honour I am able to provide a short summary of the circumstances which have led to the current proceedings.

  2. The first point to note is the changing legal identity of the employer resulting from the statutory changes referred to by Boland AJ.

  3. Mr Pace was first employed by the State of New South Wales, the first respondent, in 1981. In 1991 his employer became the Technical and Further Education Commission, the second respondent. Then in 2006 the first respondent again became the employer and remained so until the termination of his employment. On 1 December 2011 the TAFE Commission again became the employing entity for staff in TAFE.

  4. The order made by MacDonald C in Alf Pace v Managing Director, TAFE Commission [2011] NSWIRComm 1052 (“Pace No 1”) was, as Boland AJ explained in [5] of Pace No 2 made against his then employer, the State of New South Wales. As also noted by his Honour the employer sought to appeal (the Appeal Proceeding) and the order of MacDonald C was stayed, prior to the 1 December 2011 change of employer entity for TAFE employees.

  5. The Appeal Proceeding was discontinued on 16 February 2012 as described by his Honour in [8] of Pace No 2. Nothing was said at the time as to status of the stay order.

The Documents Sought

  1. Paragraphs 1 and 2 of the notice to the first respondent relate to the statutory transfers of employment in 1991 and 2006. The respondents submit that there is no apparent relevance of such documents to the present proceedings. The applicant submitted the apparent relevance relates to the practicability of reinstatement in accordance with the orders of MacDonald C in Pace No 1. It is further submitted that the documents may be useful to the applicant in cross-examination of the respondents’ witnesses as to the practicability of arrangements on transfers.

  2. The first observation I would make is that the question of practicability of reinstatement, as a matter of fact to be determined in the exercise of a discretion, is a question for the Commission in its arbitral jurisdiction. It is not a question for the Industrial Court. The Court may be able to consider practicability as a question of law, that is, the court may be able consider whether there are legal impediments to reinstatement. However, I am not persuaded the documents relating to the transfers in 1991 and 2006 would provide any relevant factual background to determining that question. These transfers were effected under different statutory instruments. I set aside paragraphs 1 and 2.

  3. Paragraph 3 seeks documents relating to the employment of the applicant with any New South Wales government entity since 1981. It is challenged on the basis of apparent relevance and oppression. Ms Heath submitted that relief is sought in relation to superannuation and the issue of length of service may be relevant to that question. She noted however there has been substantial production in relation to this paragraph. In the circumstances I am inclined to set aside the paragraph in its current form. Should some more confined production be thought necessary that can be considered.

  4. As to paragraph 4 the respondents complained that it is unrestricted as to time prior to 1 December 2011. Mr Shariff suggested a period of 6 months prior. Ms Heath responded that Mr Pace was absent from the workplace and lacked access to the intranet from September 2010. In my view the period from September 2010 to 1 December 2011 would not impose an undue burden on the respondents. I set aside the request in so far as it relates to a period before that date.

  5. Paragraphs 5-13 raise issues of privilege. Ms Heath made the following submission in relation to privilege.

“UCPR r 1.9 also only operates to permit objections to production based on Part 3.10 of the Evidence Act (see Carbotech – Australia Pty Ltd v Yates [2008] NSWSC 1151; Brereton J pars [8] – [10]; Singtel Optus Pty Ltd v Weston [2011] NSWSC 1083 per White J at [24] – [29].”

  1. Rule 1.9 of the UCPR provides:

1.9 Objections to production of documents and answering of questions founded on privilege

(cf SCR Part 36, rule 13; DCR Part 28, rule 16)

(1) This rule applies in the following circumstances:

(a) if the court orders a person, by subpoena or otherwise, to produce a document to the court or to an authorised officer,

(b) if a party requires another party, by notice under rule 34.1, to produce a document to the court or to an authorised officer,

(c) if a question is put to a person in the course of an examination before the court or an authorised officer.

(2) In subrule (1), authorised officer means:

(a) any officer of the court, or

(b) any examiner, referee, arbitrator or other person who is authorised by law to receive evidence.

(3) A person may object to producing a document on the ground that the document is a privileged document or to answering a question on the ground that the answer would disclose privileged information.

(4) A person objecting under subrule (3) may not be compelled to produce the document, or to answer the question, unless and until the objection is overruled.

(5) For the purpose of ruling on the objection:

(a) evidence in relation to the claim of privilege may be received from any person, by affidavit or otherwise, and

(b) cross-examination may be permitted on any affidavit used, and

(c) in the case of an objection to the production of a document, the person objecting may be compelled to produce the document.

(6) This rule does not affect any law that authorises or requires a person to withhold a document, or to refuse to answer a question, on the ground that producing the document, or answering the question, would be injurious to the public interest.

  1. I agree that UCPR r 1.9 permits objections to production based on Pt 3.10 of the Evidence Act 1995. The term “privileged document” is defined in the UCPR Dictionary to mean “a document that contains privileged information”. “Privileged information” is itself a defined term in the UCPR Dictionary.

privileged information means any of the following information:

(a) information of which evidence could not, by virtue of the operation of Division 1 of Part 3.10 of the Evidence Act 1995, be adduced in the proceedings over the objection of any person,

(b) information that discloses a protected confidence, the contents of a document recording a protected confidence or protected identity information (within the meaning of section 126B of the Evidence Act 1995) where:

(i)  consent by the protected confider (within the meaning of section 126C of that Act) has not been given to disclosure of the confidence, contents or information, and

(ii) section 126D of that Act would not operate to stop Division 1A of Part 3.10 of that Act from preventing the adducing of evidence in respect of the confidence, contents or information,

(c) information of which evidence could not be adduced in the proceedings by virtue of the operation of section 126H of the Evidence Act 1995,

(d) information that tends to prove that a party by whom a document is required to be made available, or by whom an interrogatory is to be answered, under section 128 of the Evidence Act 1995 or section 87 of the Civil Procedure Act 2005:

(i)  has committed an offence against or arising under an Australian law or a law of a foreign country, or

(ii)  is liable to pay a civil penalty,

(e) information the admission or use of which in a proceeding would be contrary to section 129 of the Evidence Act 1995,

(f) information that relates to matters of state within the meaning of section 130 of the Evidence Act 1995,

(g) information to which section 131 of the Evidence Act 1995 applies,

(h)  information:

(i)  the disclosure of the contents of which, or

(ii)  the production of which, or

(iii)  the admission or use of which,

in the proceedings would be contrary to any Act (other than the Evidence Act 1995) or any Commonwealth Act (other than the Evidence Act 1995 of the Commonwealth),

but does not include information that the court declares not to be privileged information for the purposes of those proceedings

  1. The rule permits a party to object to the production of privileged documents so defined. The judgments of Brereton J and White J, in Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1151 and Singtel Optus Pty Ltd v Weston [2011] NSWSC 1083 respectively, make clear that UCPR r 1.9 applies to the stage at which production is sought. Whether and to what extent it applies beyond the stage of production will vary according to the circumstances then applicable. In this instance UCPR r 1.9 applies because the objection is taken to production.

  2. Mr Shariff submitted that each of the paragraphs seek privileged material and objects to production on that basis. Paragraphs 5-6 and 8 seek documents relating “to instructions to” Mr Miles in respect of the conduct of proceedings. Self-evidently such documents have the potential to attract privilege under s 119. I observe parenthetically that Mr Miles, a solicitor, was acting and appearing at that time in proceedings in which the first respondent was the employer and therefore the client (in both Pace No 1 and the Appeal Proceeding).

  3. The applicant conceded that the documents were of a kind that may attract privilege. Ms Heath accepted that Mr Miles is and was at the relevant time a lawyer. Indeed the AOC refer to him as the “third respondent’s solicitor”. She submitted that he was employed in a position titled “Principal Solicitor” in the Department of Education and Communities.

  4. Counsel submitted further that:

[T]here is certainly the potential in the sort of situation Mr Miles was working where communications that in other circumstances might be the occasion for privilege may not be. Unless and until some form is given to the objection as to privilege, it is impossible for me to answer in the hypothetical.

  1. I understood this submission to suggest that as Mr Miles was employed in the management hierarchy of the Department documents may come to him in a management rather than a legal context and so do not attract privilege. Accordingly. Ms Heath submitted that the documents may not be privileged or that privilege may have been waived.

  2. The difficulty with this submission is the use of the word “instructions” and the definition given of it by the applicant. In correspondence dated 18 May 2015 the applicant’s solicitors defined “instructions”, as used in paragraphs 5, 6, 8 and 9 of the notice, to mean “the factual information and directives given by a client to a solicitor”.

  3. The burden of establishing the existence of the privilege falls upon the party asserting it. In Grant v Dawns [1976] HCA 63; (1976) 135 CLR 674 at 689 Stephen, Mason and Murphy JJ stated:

“It is for the party claiming privilege to show that the documents for which the claim is made are privileged. He may succeed in this objective by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence. But it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual. The court has power to examine the documents for itself, a power which has perhaps been exercised too sparingly in the past …”

See also Esso Australia Resources Limited v Commission of Taxation for the Commonwealth of Australia [1998] HCA 67; 201 CLR 49 at [52]

  1. The respondents here rely on the “nature of the documents” sought. Having regard to the way the documents sought are described, particularly considering the definition of “instructions”, and the description of the circumstances to which the “instructions” relate (the conduct of proceedings before the Industrial Relations Commission), I am satisfied that the documents are of a nature which make them privileged.

  2. Although paragraph 9 refers to “advice”, it is “advice” in respect of proceedings. In my view the documents it seeks would attract both litigation and advice privilege.

  3. Ms Heath submitted the privilege may have been “waived”, an expression I take to mean lost for one reason or another. The burden of establishing that a privilege has been lost falls upon the party asserting it. No evidence is before me which suggests any of the material has previously been disclosed such as to permit a conclusion of waiver.

  4. In support of this aspect the applicant points to the grounds and contentions asserting a want of “good faith” on the part of the respondents and their officers responsible for the conduct of the Appeal Proceeding. Paragraphs 40-49 of the Grounds and Reasons set out the assertions of fact upon which the applicant relies in this respect.

  5. Paragraphs 7 and 8 of the AOC assert representations by “the third respondent’s solicitor” and a state of knowledge possessed by the respondents and “the third respondent’s solicitor” as to the commencement of the Technical and Further Education Commission Amendment (Staff Employment) Act 2011 (“Employee Transfer Act”).

  1. Paragraph 9 of the AOC is in the following terms:

Despite the third respondent seeking the indulgence of a stay order, her solicitor did not inform the applicant or the Court of the impending commencement of the Employee Transfer Act, which its seems likely the respondents considered would affect the subject matter of the appeal (Emphasis added)

  1. The effect of this “likely” state of knowledge in the context of the proceedings is explained in paragraph 59 of the AOC.

The applicant contends that if the stay was terminated with the appeal or if the stay now be vacated, the respondents’ agreement that the Commissioner’s orders will ‘run from’ 15 November 2011 will have effect. Alternatively, the stay should now be vacated or set aside from the beginning. It is not necessary that the Court find the order was procured against good faith in order to it set aside from the beginning, it is enough that to do so will do justice between the parties (ss 57 and 58 Civil Procedure Act 2005). However, the circumstances in which consent to the order was obtained and the failure of the third respondent or her solicitor to draw the attention of the applicant and the Court to the impending legislation seems, at least, sharp practice and rather a want of the good faith and candour to be expected of any litigant seeking the indulgence of relief from orders made against it but even more so of model litigants (Mahenthirarasa v State Rail Authority of NSW (No 2) (2008) 72 NSWLR 273 at [16]-[18], [22]; cf Ramsden v Dyson (1866) LR 1 HL 129, 140-1 and other citations in Handley Estoppel by Conduct and Election Thomson 2006 at 11-010 and 3-014).

  1. It is apparent that the applicant seeks a finding that the stay terminated with the appeal or should now be vacated or set aside from inception. It is unclear to me how the Industrial Court could vacate or set aside the stay.

  2. The stay was an order of the Industrial Relations Commission other than in court session. It is now well recognised that the Industrial Relations Commission of New South Wales is constituted by two separate and distinct bodies, the Industrial Court or Commission in Court Session and the Commission otherwise constituted: Taudevin v Egis Consulting Australia Pty Ltd (No 1) [2001] NSWIRComm 340; (2001) 131 IR 124 at [137].

  3. In Packer v The Greater Murray Area Health Service [2000] NSWIRComm 149 Boland J (as he then was) undertook an analysis of the legislation establishing the Industrial Relations Commission to determine whether the legislation empowered the Court and the Commission to sit simultaneously, that is, to enable the one bench to exercise at the same time the jurisdiction of the two bodies. He concluded it did not. In particular his Honour regarded s 151(2) of the Industrial Relations Act 1996 as significant. He said at [19]:

Section 151(2) provides that the Commission may be constituted by a judicial member or members when not exercising those functions conferred or imposed on the Commission in Court Session by or under this (the Industrial Relations Act 1996) or any other Act or law. Accordingly, I am able to constitute the Commission when it is performing a function within its jurisdiction, such as dealing with an unfair dismissal claim and I am able to constitute the Commission in Court Session when performing a judicial function, such as dealing with an unfair contract claim: s 153. However, I think that s 151(2) has to be read literally where it says, in effect, that a judicial member may constitute the Commission when not exercising the functions conferred or imposed on the Commission in Court Session. In my opinion, the meaning to be drawn from the words in s 151(2), to the effect that a judicial member may constitute the Commission when not exercising the functions conferred or imposed on the Commission in Court Session, is that I am prevented from exercising the functions of the Commission and the Commission in Court Session simultaneously. In other words, if I am exercising a function conferred on the Commission in Court Session pursuant to s 153(1), such as proceedings under Part 9 of Chapter 2 (unfair contracts), s 151(2) indicates that I may not constitute the Commission while exercising that function.

  1. His Honour’s analysis of the legislation led him to the view, at [28] that the line between judicial and non-judicial functions “would become blurred if the functions were exercised simultaneously. He concluded at [30]:

Parties participating in proceedings before the Commission and the Commission in Court Session are entitled to know with certainty the practice and procedure under which they are to make out their respective cases and what powers the member dealing with the matter is exercising at any given time. To join matters that reside in separate jurisdictions and hear them together may have the effect of creating such confusion that the respondent would be prejudiced. It may also create significant problems if there were to be an appeal.

  1. The decision in Packer was cited with apparent approval by a Full Bench of the Court in Taudevin. That citation was in the context of the existence of the two separate tribunals but there was no suggestion that his Honour’s reasoning was erroneous.

  2. The first three orders sought by the applicant are directed to the proceedings IRC 1723 of 2011 (the Appeal Proceeding) being the first respondent’s appeal from the decision in Pace No 1. I raised with the applicant my concerns about the capacity of the Court to make those orders. The applicant has not yet made detailed submissions in relation to the point and accordingly the views I express now cannot be and are not final.

  3. The third order seeks that the stay order in the Appeal Proceeding be varied, vacated or set aside by the Court. That raises the issue as to how that may be achieved having regard to Packer. While the determination of that question must abide full argument, the difficulties confronting the applicant can be, in my view, weighed in the balance when considering the resolution of this motion.

  4. There is a further consideration which must be balanced. The respondents do not contend that the stay order continues to have effect.

  5. In their Grounds of Opposition the first and third respondents contended at [9]:

Further, in the premises in paragraphs [1] – [8] above, by reason of the Discontinuance of the Appeal:

(a) the Stay Order was lifted and/or ceased to have any purpose or effect;

(b) the Undertakings given by Mr Miles on behalf of the First Respondent came to an end;

(c) the Orders had the potential to come into legal effect, but were not capable of practical effect because compliance with the reinstatement order under s. 89(1) of the Industrial Relations Act 1996 (NSW) (the IR Act) was impossible because the First Respondent was not in a position whereby it could lawfully and effectively reinstate the Applicant to his former position;

(d) the position stated in subparagraphs (a)-(c) above was known to the Applicant and his legal representatives;

(e) the common position as between the parties was that it was a known fact that the First Respondent was incapable of reinstating the Applicant to his former position;

(f) the facts pleaded in subparagraph (c) above were, in fact, partly the basis upon which the First Respondent had sought the Discontinuance and which was communicated both to the Commission and the Applicant the basis upon which its appeal was being discontinued.

  1. In their response to the applicant’s request for particulars the first and third respondents said:

“As you know, our clients’ position is that the Stay Order ceased to have effect upon the Discontinuance of the appeal proceedings (which was consented to by your client) and in respect of which the Commission granted leave by an order initialled by Walton J)”

  1. While the second respondent, in its contentions, relies on findings in Pace No 2, including findings that it was not the employer of the applicant and that the stay order had not been lifted or revoked and remained effective, those are propositions of construction. Those propositions do not turn on, nor are they informed by, the knowledge of the respondents as to the impact of the Employee Transfer Act or the instructions of Mr Miles.

  2. All of these considerations lead me to conclude that the interests of justice will not be served by requiring the respondents to produce the documents sought in paragraphs 5, 6, 8 and 9. Paragraph 7 is slightly different but appears to have such a close connection to 5, 6, 8 and 9 that it should be dealt with in the same way.

  3. Similarly paragraphs 10, 11 and 12 have a close connection to the “instructions” given in relation to the proceedings in Pace No 1 and the Appeal Proceeding and accordingly should be dealt with in the same way.

  4. Paragraph 13 refers to “departmental and ministerial arrangements” for the Employee Transfer Act to be proclaimed to commence. It is opposed on the basis of oppression and privilege. Mr Shariff submitted it is also closely connected to the “instructions” the subject of paragraphs 5-12. It is not clear what privilege is claimed. It may be inferred from the description of the documents that it is public interest privilege (Evidence Act s 130) or from Mr Shariff’s submissions, client legal privilege.

  5. There is no evidence before me as to the public interest privilege and insufficient description of the nature of the documents to conclude that such a privilege does arise.

  6. Ms Heath’s submission is that the paragraph is justified because it:

… is relevant to the matters sought to be shown in the proceedings and it is relevant to testing the proposition advanced by the respondent that Mr Miles knew the Act had been passed but didn't know when it was going to commence.

So far the response of the first and third respondents has been ‑ indeed the second respondent ‑ has been silent as to what those responsible for the conduct of proceedings other than Mr Miles knew.

  1. Ms Heath’s submission makes clear that the “apparent relevance” of the documents is to the “want of good faith” contention advanced by the plaintiff and denied by the respondents. The point is not restricted to the stay order but extends to undertakings as to salary and continuity of service if the appeal were to be unsuccessful.

  2. Mr Shariff submitted that such a contention, speculated in oral submissions to amount potentially to fraud, requires clear pleading and particularisation which has not yet been done. Ms Heath responds that she does not wish to overreach in the pleadings. That is a quite proper attitude but it does not assist me particularly in determining this issue. I am required to make this determination on the issues identified in the case. I have earlier referred to the grounds and contentions relating to the point raised by the applicant.

  3. On balance I am inclined to require production to the Court of the documents within paragraph 13. Questions of privilege, should they arise, can be dealt with on an application for access. As the Employee Transfer Act was passed in mid-November and commenced on 1 December 2011, I am not satisfied that the search for such documents would be unduly onerous.

  4. Paragraphs 14-16 have been met by informal production. Mr Shariff formally opposed them and Ms Heath formally pressed them. I will set them aside but without prejudice to the rights of either party should the informal production present difficulties.

  5. Paragraph 17 is not opposed.

  6. Paragraph 18 is opposed as oppressive. As expressed it relates to a thirty year period. I have noted above the willingness of the applicant to limit it to the period from 1January 2008. I do not know why that date was chosen. Ms Heath said that the apparent relevance is to demonstrate Mr Pace’s readiness, willingness and ability to work from the date of his dismissal and prior to that, to demonstrate accommodations reached between the parties during earlier periods of illness. The latter is too remote from the issues in this case having regard to the searching which would be required. I would set it aside in part and limit it to the period post the applicant’s suspension prior to his dismissal, that is, 6 May 2010.

  7. Paragraph 19 is to be dealt with in the same way.

  8. Paragraphs 20-25 are grouped under a heading of previous injuries. They span various periods; paragraph 20 relates to the period 1995-2010; paragraph 21 to 1995-6; paragraph 22 to “in or about 1999”; paragraph 23 to “in or about March 1998”; and paragraphs 24 and 25 to the entire history of the applicants employment.

  9. Ms Heath tendered an extract from the Investigators Report containing a schedule summarising the applicant’s employment history. She submitted that the applicant was unaware of those matters being taken into account by the employer prior to his termination and that the documents sought were relevant to the “unlawful dismissal argument”.

  10. Counsel also submitted there had been substantial production of those documents. I am not satisfied that the documents sought have sufficient proximity to the issues in the case. I note there has been substantial informal production. I will therefore set aside paragraphs 20-25.

  11. The argument proceeded on the basis that the rulings in relation to the notice to the first respondent would determine the outcome in relation to the notice to the third respondent. I proceed accordingly.

Orders and directions

  1. The Court makes the following orders and directions:

  1. As to the notice served on the first respondent:

  1. Paragraphs 1-3, 5-12, 14-16 and 20-25 are set aside;

  2. Paragraph 4 is set aside in part to the extent it seeks documents before 1 September 2010;

  3. Paragraphs 18 and 19 are set aside in part to the extent they seek documents prior to 6 May 2010;

  4. As to paragraph 13, production to the Court is required. Leave is reserved to argue questions of privilege on application for access.

  1. The notice served on the third respondent is set aside in the same way and to the same extent as set out in Order (1).

  2. I direct the first respondent to bring in short minutes of order as to both notices to produce in accordance with this decision.

  3. Costs are reserved.

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Decision last updated: 24 June 2015

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Darley & Darley [2020] FamCAFC 4
Darley & Darley [2020] FamCAFC 4