Application pursuant to s. 84A(1)(b) of the Industrial Relations Act 1979

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2023 WAIRC 00148

DELIVERED : Tuesday, 21 March 2023

FILE NO. : FBM 2 OF 2022

Applicant

AND

Australian Nursing Federation, Industrial Union of Workers Perth

Respondent

Catchwords : Industrial law (WA) - Interlocutory application - Inadequate discovery - Application for interrogatories - Application granted in part - Orders issued

Legislation : Industrial Relations Act 1097 (WA) s 27(1)(o) 

Result : Order issued

Representation:

Counsel:

Applicant : Ms M Saraceni of counsel

Respondent : Mr T Hammond SC of counsel

Solicitors:

Applicant  : Francis Burt Chambers

Respondent  : Australian Nursing Federation

Case(s) referred to in reasons:

Reasons for Decision

KENNER CC:

The proceedings

1         On Friday, 17 March 2023, the Full Bench made orders in this matter in response to an interlocutory application heard on Wednesday, 15 March 2023, with reasons to be published in due course. The applicant made an interlocutory application for discovery, due to alleged defects in the affidavit of discovery filed by the respondent on 27 February 2023.  Additional orders for the administration of interrogatories and for substituted service of a summons to witness were sought.

2         The orders issued on 17 March 2023 require the respondent to give discovery on affidavit of various categories of documents, which discovery the Full Bench considered just and consistent with the equity, good conscience and the substantial merits of the case.  The order for substituted service of a summons was made, but the order for the administration of interrogatories was refused: Registrar v Australian Nursing Federation, Industrial Union of Workers Perth [2023] WAIRC 00147.  What follows are my reasons for making the orders. 

3         The order made last Friday follows an earlier decision and order made by the Full Bench on 15 February 2023, requiring the respondent to give discovery on affidavit of various categories of documents by 27 February 2023: Registrar v Australian Nursing Federation, Industrial Union of Workers Perth [2023] WAIRC 00083; [2023] WAIRC 00086.  Amended directions were also issued by the Full Bench on 15 February 2023: [2023] WAIRC 00084; [2023] WAIRC 00085.

4         The material terms of the order made by the Full Bench on 15 February 2023 as to the categories of documents to be discovered were set out at Schedule A in the following terms:

(1) Copies of minutes of the ANF Council and Executive meetings relating to:

(a) the proposed ballot of union members concerning the offer of a replacement industrial agreement made on 15 November 2022 by the Department of Health;

(b) the order of the Senior Commissioner of 18 November 2022 deferring the conduct of such ballot; and

(c) the alleged second to sixth contraventions of the 18 November 2022 order, as particularised in the summons from the Registrar to the ANF, filed on 2 December 2022, that relate to a claim by the ANF for terms and conditions better than the offer made by the Department of Health on 15 November 2022.

(2) Copies of communications, notices or correspondence to ANF members via email, social media, newsletters, media releases or the ANF iFolio website regarding the orders made by Senior Commissioner Cosentino on 18 November 2022 and 23 November 2022.

(3) Copies of written and/or audio records of meetings between the ANF Secretary and/or other members of the Executive or the CEO, and staff at public hospitals throughout Western Australia regarding the orders made by the Senior Commissioner of 18 November 2022 and 23 November 2022 and the industrial action held on 25 November 2022.

(4) Copies of any media releases, content of press conferences or other communications the ANF prepared and/or distributed to media outlets regarding the orders made by the Senior Commissioner of 18 November 2022 and 23 November 2022 or the industrial action which took place on 25 November 2022.

(5) Copies of any records regarding ANF members who, in respect of the industrial action which took place on 25 November 2022:

(a) registered with the ANF to receive a strike pay subsidy of $150; and

(b) have received or are due to receive the strike pay subsidy.

(6) Copies of any records regarding ANF members who requested and/or registered for transport by bus on its iFolio system for transportation to the rally at Parliament House on 25 November 2022.

(7) Copies of records as to the number of buses the ANF arranged for transportation of ANF members to the rally at Parliament House on 25 November 2022.

Discovery

5         The affidavit of discovery, made by Mr Olson, the Chief Executive Officer of the respondent, filed on 27 February 2023, is manifestly inadequate and fails to comply with the orders of the Full Bench of 15 February 2023. 

6         First, the affidavit omits to provide any documents within the category specified in par (7) of schedule A to the order.  No explanation is provided in the affidavit for this omission.  I should note that senior counsel appearing for the respondent informed the Full Bench that a supplementary affidavit as to the documents at par (7) of the order, would be filed. 

7         Second, as to categories (5) and (6) of Schedule A to the order, being records of members who registered and received strike pay and requested or registered for bus transport to a Parliament House rally on 25 November 2022, no documents are provided as ordered.  Only two lengthy lists of numbers, presumably, but not stated by Mr Olson, to be membership numbers of nurses who are members of the respondent, and which purport to be those members who received reimbursement for strike pay and who registered for bus transport, are included at Annexures 5 and 6 respectively, to the affidavit.

8         No explanation is provided in the affidavit by Mr Olson as to these lists of member numbers. On their face, they are of limited value. They appear to be derivative documents, compiled from other source material in the possession, custody, or power of the respondent, which are not discovered, in direct contravention of pars (5) and (6) of Schedule A to the order.

9         Equally of concern is correspondence from Ms Burke, Director ANF Legal Services, to Ms Saraceni, counsel for the applicant, dated 3 March 2023, annexed to the applicant’s written submissions. In this correspondence, Ms Burke responds to issues raised by the applicant regarding Mr Olson’s affidavit of discovery.  Whilst Mr Olson did not depose to the fact, in relation to categories in pars (5) and (6) of Schedule A to the order, Ms Burke indicated that ‘Mr Olson is not willing to provide you with their names’, this presumably referring to the names of members. The issue of confidentiality of member records was specifically addressed in my reasons of 15 February 2023 at [40] and [41] (Emmanuel and Kucera CC agreeing) and par 2 of the order was made to accommodate it. 

10      In direct contravention, and a contemptuous failure to comply with the order of the Full Bench, the respondent simply refused to provide the documents required. It is not for the respondent to pick and choose those parts of orders of the Commission it will comply with and which parts of the orders it will not. The terms of the order of the Full Bench are crystal clear. There can be no doubt as to what is meant by them. Such orders can be enforced under s 83 of the Industrial Relations Act 1979 (WA), at the initiative of those persons specified in s 83(1) of the Act.

11      Specifically, and by way of illustration, the list of member numbers at Annexure 6 to Mr Olson’s affidavit, is entirely meaningless. An issue identified in the proceedings before the Full Bench, and dealt with in my reasons for decision, was recognition that not all members who attended the rally at Parliament House on 25 November 2022, may have been taking industrial action. Some members who attended the rally may have done so prior to or after the cessation of their ordinary working day. Absent the names of members who requested bus transport, which can then be cross‑referenced with names of nurses who sought unpaid leave for the day of 25 November 2022, it will not be possible to determine those who attended the rally in their own time, as opposed to those who attended the rally and partook in industrial action.

12      The documents at Annexure 2 to Mr Olson’s affidavit, appear to be what are described in Ms Burke’s correspondence as ‘samples’ of emails sent to members of the respondent.  It was asserted by Ms Burke, but not affirmed by Mr Olson, that such email communications with members are:

…normally deleted within a month of the email being sent unless the ANFIUWP specifically wants to keep the record for a longer period.

13      The copies of the emails annexed to the affidavit of discovery appear to be documents forwarded by Mr Olson and which are addressed to various other persons, who one presumes are members of the respondent. However, there is no explanation in the affidavit of discovery as to whom the emails were sent or the reason for a sample selection. Further, accepting there is no necessity to attach thousands of copies of the same communication, there is no explanation in the affidavit of discovery indicating that there are no further documents of the kind requested in par (2) to Schedule A of the order, in the respondent’s possession, custody or power and that all reasonable steps have been taken to locate them. This latter observation applies to all the categories of documents sought.

Interrogatories

14      The applicant, at Schedule 1 to her interlocutory application, posed 40 questions sought to be answered by the respondent. Furthermore, following the filing of the respondent’s response on 16 March 2023, the applicant proposed a new interrogatory and various amendments to existing interrogatories. The administration of interrogatories is not a usual procedure adopted in this jurisdiction. However, no issue would appear to arise as to the Commission’s jurisdiction and power to make such orders, given the breadth of s 27(1)(o) of the Act.

15      The applicant submitted that the proposed interrogatories sought to be answered are for the purpose of identifying potential contraventions of the orders made by the Senior Commissioner the subject of these proceedings, and disclosing factual material relevant to those alleged contraventions. It was submitted that the categories of questions posed in the interrogatories relate to the role played and decisions made by the respondent’s Council and senior officers concerning the alleged contraventions; communications by the respondent with its membership; public statements made by or on behalf of the respondent over the relevant period; preparations made by the respondent for the industrial action on 25 November 2022; and the actions of the respondent’s counterpart federal body, the Australian Nursing and Midwifery Federation, in relation to the alleged contraventions. It was submitted that answers to the questions posed will aid in the Full Bench having before it in the substantive proceedings all of the relevant material, to enable it to determine the respondent’s conduct and the seriousness of any contraventions.

16      The respondent opposed the administration of interrogatories in this matter. It was submitted that to do so would be oppressive and likely to lead to a significant delay in the respondent’s preparation for the substantive proceedings. Various criticisms were also directed to the questions asked, and assertions were made that many of them are vague, and otherwise objectionable.

17      The issues in dispute in applications FBM 1 of 2022 and FBM 2 of 2022 are identified by the applications filed on 21 December 2022; the applicant’s particulars of claim filed on 7 March 2023 and the respondents’ responses filed on 16 March 2023. The applicant’s particulars of claim are detailed and assert various contraventions of the orders made by the Senior Commissioner on 18 November and 23 November 2022. As to the 18 November 2022 order, the particulars refer to contraventions of the Senior Commissioner’s order in relation to the deferral of the ballot of its members in relation to the Department of Health’s offer for a replacement industrial agreement; and various contraventions of the order precluding the respondent and its officers from making any public commentary in relation to maintaining a claim better than that contained in the offer.

18      As to the 23 November 2022 order, detailed particulars are provided concerning alleged contraventions of the order prohibiting the taking of industrial action; various contraventions of the order requiring publication of the Senior Commissioner’s order to the respondent’s members; various contraventions of the order prohibiting the respondent taking any steps to encourage the taking of industrial action; and various contraventions of the order prohibiting public commentary by officers, employees or agents of the respondent, to incite or promote or encourage the taking of industrial action.

19      The particulars of claim in relation to proceedings commenced against Ms Reah, the Secretary of the respondent, set out the factual assertions which the applicant contends involved a failure to comply with the summons for Ms Reah to attend a compulsory conference before the Senior Commissioner, on 25 November 2022 at 9.15 am.

20      By their response filed on 16 March 2023, the respondents in FBM 1 of 2022 and FBM 2 of 2022 admit most of the factual allegations made against them, as asserted in the applicant’s particulars of claim.  Rather, the respondent in FBM 2 of 2022 contends that some of the Senior Commissioner’s orders were unlawful and otherwise asserts that the taking of industrial action by members of the respondent and other alleged contraventions, constitute a single contravention and not multiple contraventions as contended by the applicant.

21      Interrogatories are normally administered after the close of pleadings. The Commission is not a court of pleadings but, analogously in these proceedings, the filing of the response by the respondents in the proceedings could be so regarded, subject to any reply being filed. Once this occurs, the issues in dispute in the proceedings are more clearly defined. Generally speaking too, courts are often reluctant to make orders for the administration of interrogatories, because of issues of costs and delay that may arise in proceedings (See generally Bernard Cairns, Australian Civil Procedure 12th Edition at [11.300]). Grounds for resisting orders for interrogatories include where the grant of such a request would be oppressive and disproportionate to what is required for the effective disposition of the proceedings (See Australian Civil Procedure at [11.520]).

22      I have concerns in this case that given the tight timetable agreed to by the parties and the nature of the questions posed in the proposed interrogatories, especially in light of the very substantial admissions made as to alleged conduct, an order to require the respondent to answer the questions in the available time would be unreasonable and oppressive.  It is also the case that the existing directions require the parties to put on written evidence‑in‑chief soon, by 30 March 2023. All those witnesses who do so, will of course, be available for cross‑examination as a part of the conduct of the parties’ cases, in the usual way. 

23      For these reasons, I was not prepared to make an order requiring the respondent to answer the interrogatories as sought by the applicant.

EMMANUEL C:

24      I have read the reasons for decision of the Chief Commissioner.  I agree with those reasons and have nothing to add.

KUCERA C:

25      I also agree with the reasons for decision of the Chief Commissioner, and have nothing further to add.