100213816

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES THE CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED

APPLICANT

 -v-

 DIRECTOR GENERAL, DEPARTMENT OF JUSTICE

RESPONDENT

CORAM SENIOR COMMISSIONER A R BEECH

 PUBLIC SERVICE ARBITRATOR

DATE MONDAY, 28 OCTOBER 2002

FILE NO PSAC 20 OF 2002

CITATION NO. 2002 WAIRC 06875

_______________________________________________________________________________

Result Order issued.

Representation

Applicant Mr J. Ross

Respondent Mr N. Cinquina

_______________________________________________________________________________

Reasons for Decision - Production of Documents

1         The substantive matter before the Commission is an application by the applicant union (CSA) for a declaration that in relation to its member Georgina Westlund the respondent has breached the requirements of the Public Sector Management Act 1994 in sections 8 and 9 and for orders:

 “(1) That the respondent “cease and desist workplace bullying”.

(2) That the respondent provide the necessary assistance to re-locate Ms Westlund to a suitable alternative position within the public sector.

(3) That the respondent place Ms Westlund on paid leave from the date she last worked until the date she is permanently placed in a suitable alternative position within the public service.

(4) That all leave entitlements utilised during the period referred to in the preceding order be fully reinstated.

(5) That the period referred to in the preceding order shall be regarded as service for all purposes of Ms Westlund’s employment.”

2         The present application is for an order regarding the discovery of documents. 

3         The application is opposed both as to the breadth of the documents sought and because of the understanding of the respondent that the documents sought are for the purpose of proceedings in relation to Ms Westlund’s workers’ compensation claim. 

4         I have already held that the relief sought in the substantive application in this jurisdiction does not seem to be a frivolous claim.  Mr Ross, representing the CSA, has categorically denied any improper purpose in this application for the discovery of documents.  If the only opposition to the claim for an order for the production of documents was the breadth of the application, I would be prepared to grant the claim in principle on the basis that I consider it just that documents be produced in a claim that is not frivolous. 

5         The breadth of the application is very readily determined.  It is quite clear that an order for discovery is confined to what is in issue in the Notice of Application and the Notice of Answer and Counter Proposal (ALHMWU and WA Hotels and Hospitality Association and Burswood Resort Hotel (1995) 75 WAIG 1801 at 1805).  The substantive application lodged by the Commission is for:

 “A section 44 conference and if not conciliated, a hearing pursuant to section 80E of the WA Industrial Relations Act 1979, for the actions, decisions, and/or any related matter of the respondent, specifically in relation to the intimidation, harassment and victimisation of Ms Georgina Westlund.”

6         The particulars attached to the application relate to allegations regarding the manner in which Ms Westlund is said to have been treated. 

7         The Notice of Answer and Counter Proposal contains a number of alleged facts regarding Ms Westlund’s employment. 

8         The present interlocutory application is “for the discovery, production and inspection of all documents in relation to the matter before the Public Service Arbitrator concerning Ms Georgina Westlund”. 

9         Accordingly, the issue in the Notice of Application (both substantive and interlocutory and the Notice of Answer and Counter Proposal) is the alleged bullying of Ms Westlund.  Specifically, and in relation to the submissions which have been made in the interlocutory proceedings, the substantive application before the Commission is not that the respondent allows bullying of its staff in the workplace.  It is an application that the respondent has allowed Ms Westlund to be bullied.  Order 1 of the orders sought is therefore to be read narrowly in that context.  Accordingly, the only order which may issue from the present interlocutory proceedings is an order for the discovery, inspection and production of documents in relation to the allegation of bullying of Ms Westlund.  Point 6 of order 2 as sought is broader than the scope of the application.

10      I merely add this obvious comment.  Had the application made to the Public Service Arbitrator by the CSA been an application addressing alleged bullying of all staff by the respondent then an order for the production, discovery and inspection of documents would be limited by that claim.  That is simply not the case at present. 

11      This conclusion also assists in addressing the second issue.  The respondent called evidence from Mr Guest, a clinical psychologist who had seen Ms Westlund on an intermittent basis.  Mr Guest’s evidence is that at one point Ms Westlund informed him that she was endeavouring through the Industrial Relations Commission to obtain other information that will support her case and that this evidently related to other difficulties that staff have had at her previous place of employment that may not be accessible through the normal channels of workers’ compensation.  Over the objection of the CSA, I allowed Mr Guest to give evidence and accepted a report he had written of 21 June 2002.  Having now had the opportunity of considering the evidence, I am unable to conclude that it supports an allegation that Ms Westlund has taken proceedings in this Commission, and as part of those proceedings sought an order for the production of documents, as a means of obtaining documents regarding her claim in the Commission which would otherwise be unavailable in the workers’ compensation jurisdiction.  The application before me is made by the CSA and not Ms Westlund.  The CSA is a principal and not merely an agent for its members.  On that basis, and with due respect, Mr Guest’s evidence was not relevant to the CSA’s application.

12      As to his evidence, at best, Ms Westlund may have referred to obtaining documents relating to other staff than herself.  However, Mr Guest’s evidence does not form any basis for refusing otherwise the request of the CSA that an order issue for the discovery, inspection and production of documents in relation to Ms Westlund’s own circumstances.  Accordingly, and subject to what follows, I propose to grant the CSA’s application.

13      I propose to issue an order in the terms of the CSA’s application within the scope of the substantive application.  Accordingly, it will not include point 6 of Order 2 as sought.  It is not otherwise suggested that the order sought is oppressive.

14      The time limits otherwise proposed will be increased to 14 days in accordance with the respondent’s request.  I propose to restrict the use of the documents to these proceedings because I am satisfied that although Ms Westlund is entitled to have access to documents which concern her discovery that access is to assist in the conduct of litigation.  Material made available on discovery cannot be used for any other purpose that the proper conduct of the proceedings in which the discovery was given (Australian Civil Procedure, Cairns, LBC 4th ed, page 372).  The reduction in the breadth of the order sought has in my view also addressed the concerns which otherwise would have arisen regarding the use of documents outside the proceedings before this Commission. 

15      The Minute of a Proposed Order now issues and the parties are requested to advise within 3 working days of the date of this decision whether or not a Speaking to the Minutes is requested.