100107236

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED

APPLICANT

 -v-

 DIRECTOR GENERAL, EDUCATION DEPARTMENT OF WA

RESPONDENT

CORAM COMMISSIONER S J KENNER

DELIVERED TUESDAY, 18 SEPTEMBER 2001

FILE NO/S P 16 OF 2001

CITATION NO. 2001 WAIRC 03773

_________________________________________________________________________

Result Application granted. Order issued.

Representation

Applicant Ms M In de Braekt

Respondent Mr J Ayling

_________________________________________________________________________

Reasons for Decision

1          The substantive proceedings in this application relate to a claim by the applicant on behalf of a member, Mr Lewis, that actions taken by the respondent in relation to periods of sick leave taken by Mr Lewis, be reviewed, nullified, modified or varied, pursuant to the powers conferred on the Commission under the Industrial Relations Act 1979 (“the Act”), constituted as the Public Service Arbitrator.

2          In the course of dealing with this matter, the applicant filed an application for the discovery, production and inspection of documents related to the substantive proceedings.  These reasons relate to that application made in Chambers.

3          Claims made by the applicant against the respondent in relation to its treatment of Mr Lewis include allegations that it exceeded and misused its powers in relation to Mr Lewis' sick leave management.  It is also claimed by the applicant that the respondent has failed to comply with the requirements of the Minimum Conditions of Employment Act 1993 and generally acted ultra vires, unreasonably and breached its obligation to maintain faith and confidence in the employment relationship with Mr Lewis, in dealing with this matter.

4          A number of categories of documents are sought relating to Mr Lewis' medical condition and to the alleged treatment by the respondent of Mr Lewis' sick leave entitlements and its management of the issue generally.  It was submitted by the applicant that access to the classes of documents sought are necessary to enable it to properly advance its case and are relevant to the fair and just determination of the matter before the Public Service Arbitrator.

5          The respondent did not specifically dispute the particular content of the application, but submitted that the application was premature in that further conciliation of the matter may resolve the dispute.  Furthermore, it was submitted that there had been no request by the applicant for the production of the documents or classes of documents sought.

6          The relevant principles in relation to discovery, production and inspection of documents in this jurisdiction were set out by the Commission as presently constituted in Ellis v The Grand Lodge of Western Australia of Antient Free and Accepted Masons Incorporated (1998) 79 WAIG 1736, where, in referring to the decision of the Full Bench of this Commission in ALHMWU v Burswood Resort Management (Ltd) (1995) 75 WAIG 1801 it was said at 1736-1737:

“Discovery is not available as of right in this jurisdiction and it is for a party making an application for an order pursuant to s 27(1)(o) to establish that it would be just for such an order to be made: ALHMWU v Burswood Resort Management (Ltd) (1995) 75 WAIG 1801. In Burswood (supra) it was observed at 1805:

"The Commission may therefore only make an order if such order is just (see Springdale Comfort Pty Ltd t/a Dalfield Homes v BTA (op cit)(IAC)).

s 26(1)( a) of the Act would not seem to be excluded from operation by the words of s 27 (1)(o) but we do not think it alters the questions to be asked and answered under s 27(1)(o).

It is for the applicant for an order under s 27(1)(o), to establish that is just for such an order to be made. The expression "just" means "right and fair, having reasonable and adequate grounds to support it, well- founded and conformable to a standard of what is proper and right". See Loxton v Ryan (1921) State Reports (Qld) 79 at 84, 88 per Lukin J". Perhaps more appositely in Smith's Weekly Publishing Co Ltd v Sunday Times Newspaper Co Ltd (op cit), which was a case relating to discovery of documents, Isaacs and Rich JJ at page 562 held that "just" means "just according to law".

In the event that the discretion to order discovery is exercised, general principles require the provision by one party to the other of a list of documents, which may be verified by affidavit, which are or have been in a party's possession, custody or power relating to any matter in question in the proceedings.  A classic statement as to whether a document relates to a matter in question, is contained in the judgement of Brett LJ in Compagine Financiere et Commerciale du Pacifique v Peruvian Guano Company ( 1882) 11 QBD 55 where he observed at 63:

"It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may not which must either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words "either directly or indirectly" because, as it seems to me, a document can properly said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences".

The case of Board v Thomas Hedley & Co Ltd (1951) 2 All ER 431 is authority for the proposition that the net is to be cast broadly in relation to determining what documents are discoverable based upon the matters in question in the action. To determine whether a document may fairly lead to a train of inquiry relevant to a matter in question, regard is to be had to the pleadings in civil litigation. In this case, regard should be had to the particulars of claim and the amended notice of answer and counter proposal: Mulley v Manifold (1959) 103 CLR 341 at 345.”

7          Having regard to the matters in question in the dispute before the Public Service Arbitrator, I am satisfied that subject to one exception, it would be just, having regard to section 27(1)(o) of the Act, to issue an order for the discovery and inspection of the documents sought by the applicant.  The exception is that I do not consider it appropriate to order the discovery of that class of documents sought relating to the attendances of other employees at medical practitioners, at the direction of the respondent.  In my view, this class of documents, if produced, would infringe the privacy and confidentiality in respect of those employees and it is not appropriate that they be the subject of an order.   In other respects, I am satisfied that the classes of documents sought satisfy the tests set out above and there was no submission by the respondent that such an order should not issue on any of the established bases to resist production of documents.

8          A minute of proposed order now issues.