REFERRAL TO COMMISSION UNDER PUBLIC SECTOR MANAGEMENT ACT 1994

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2017 WAIRC 00286

DELIVERED : MONday, 22 May 2017

FILE NO. : APPL 66 OF 2016

Applicant

AND

Department of Education

Respondent

CatchWords : Practice and procedure - Discovery, inspection and production of documents - Relevant principles - Application for costs - Order made

Legislation : Industrial Relations Act 1979 (WA) s 27(1)(c), s 27(1)(o)      

Result : Application for the production of documents and costs dismissed

Representation:

Applicant : Mr N Marsh (of counsel)

Respondent : Ms R Hartley (of counsel)

Cases referred to in reasons:

Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch v Burswood Resort (Management) Ltd (1995) 75 WAIG 1801

Magyar v Department of Education [2017] WAIRC 00211; (2017) 97 WAIG 393

Reasons for Decision

1         Mr Magyar has referred to the Commission the Department of Education’s finding that he committed a breach of discipline when he disobeyed a direction.  The direction was not to alter his classroom without consulting his line manager, which the Department says Mr Magyar did when he established a standalone computer in his classroom.  Mr Magyar also disagrees with the penalty imposed, which was a reprimand and a fine of one day’s pay. 

2         Mr Magyar’s referral under the Public Sector Management Act 1994 (WA) is listed for hearing next week. 

3         Last month I dismissed Mr Magyar’s four interlocutory applications for an order that the Department produce a large number of documents: Magyar v Department of Education [2017] WAIRC 00211; (2017) 97 WAIG 393(Magyar). 

4         Mr Magyar has made a fifth application for orders that the Department provide a large number of documents, many of which are the same documents he has sought before.  He also asks me to order that the Department pay his costs of this application. 

5         As I state in Magyar, discovery is not available as of right in this jurisdiction.  The Commission will only order discovery under s 27(1)(o) of the Industrial Relations Act 1979 (WA) if it is just to do so and necessary for the fair disposal of the case: Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch v Burswood Resort (Management) Ltd (1995) 75 WAIG 1801, 1805. 

6         I must decide whether the documents Mr Magyar wants are necessary to resolve the matter in dispute.  To do that, I must decide whether the documents are relevant to the four questions I expect I will answer when deciding Mr Magyar’s referral:

1. Did the Department direct Mr Magyar not to alter his classroom without consulting his line manager?
2. If so, was that direction a lawful order?
3. If so, did Mr Magyar disobey the lawful order?
4. Should there have been a lesser penalty or no penalty?

7         I must also decide whether to order the Department to pay Mr Magyar’s costs of this application.

What documents does Mr Magyar want?

8         Mr Magyar wants a large number of documents, which he describes in 18 categories, labelled A to R.  Documents in 10 of the categories (A, B, C, K, L, M, N, O, Q and R) were also the subject of Mr Magyar’s previous discovery applications, which I dismissed. 

9         In summary, the documents relate to:

1. background matters set out in Ms Ward’s outline of evidence; and
2. matters mentioned in paragraph 2.11 of the Standards and Integrity Directorate Investigation Report, which is part of the parties’ bundle of agreed documents.

Are the documents necessary to resolve the matter in dispute?

10      Mr Magyar’s submissions focus on describing the documents he seeks, rather than explaining why the documents are necessary to resolve the matter in dispute.  He says he needs the documents:

1. because the Department has a policy of documenting ‘all matters of this type’ and therefore there should be documentary evidence of the allegations made by Ms Ward; and
2. to ‘better understand the case that he is facing’.

11      I understand the Department’s submission to be that the documents Mr Magyar wants, if they exist, relate to background information.  They are not necessary to resolve the matter in dispute.

12      Mr Magyar says he needs the documents to better understand the case that he is facing.  Leaving aside concerns I may have about Mr Magyar continuing to focus on allegations which were not the subject of findings made against him, I am satisfied that from the Department’s notice of answer and its witnesses’ outlines of evidence, the Department’s case should be very clear to Mr Magyar.  Mr Magyar does not need the documents to understand the Department’s case.  Further, the Department has confirmed that it will not seek to tender any documents other than the agreed documents already filed by the parties.

13      I am not persuaded that I should order the Department to produce the documents merely because those documents may exist.

14      The documents are not relevant to questions 1, 3 or 4. 

15      It is not clear to me from Mr Magyar’s notice of referral or submissions that he disputes that the direction was a lawful order.  In any event, on the case Mr Magyar has presented, I am not persuaded that the documents Mr Magyar seeks are relevant to question 2 or necessary to resolve the matter in dispute.   

16      I do not consider that the documents Mr Magyar seeks are necessary for the fair disposal of this case.  It would not be just to order the Department to produce them. 

Costs

17      Given that the Commission does not have the power to order legal costs: s 27(1)(c) Industrial Relations Act 1979 (WA) and Mr Magyar does not explain what other costs he has incurred or why the Commission should order the Department to pay them, I will not make an order for costs.

18      Mr Magyar’s application for the production of documents and costs is dismissed.