O'Sullivan v Central Sydney Area Health Service [2005] NSWADT 16 (4 February 2005)

Last Updated: 4 February 2005

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL EQUAL OPPORTUNITIES DIVISION

CITATION: O'Sullivan v Central Sydney Area Health Service [2005] NSWADT 16


PARTIES: APPLICANT
Dr Brendan O'Sullivan
RESPONDENT
Central Sydney Area Health Service



FILE NUMBERS: 031122

HEARING DATES: 08/11/2004 & 10/11/2004

SUBMISSIONS CLOSED: 10/11/2004



DECISION DATE: 04/02/2005

BEFORE: Grotte E - Judicial MemberBolt M - Non Judicial MemberNemeth de Bikal L - Non Judicial Member





LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Freedom of Information Act 1989

CASES CITED: Battenburg -v- Chief Executive Officer &Secretary, Union Club [2002] NSWADT 219 (31 October 2002;
C (No.2) -v- Secretary, NSW Treasury [2002] NSWADT 235;
Grassby -v- The Queen [1989] HCA 45; (1989) 168 CLR 1 F.C. 89/042;
Hunt -v- Wark (1986) 40 SASR 489; and
LD -v- Voltime Pty Ltd (trading as 'The Cronulla Hotel') (EOD) [2001] NSWADTAP (22 May 2001);
Moore -v- Commissioner of Police, NSW Police Service & Anor [2202] NSWADT (12 June 2002);
Patsalis -v- Commissioner of Police, New South Wales [2003] NSWADT 171;
Pelechowski -v- The Registrar, Court of Appeal [1999] HCA 19 (6 May 1999);
The Queen -v- White [1976] 13 SASR 276

APPLICATION: summons - application for issue of

MATTER FOR DECISION: Preliminary matter


APPLICANT REPRESENTATIVE: APPLICANT
In person

RESPONDENT REPRESENTATIVE: RESPONDENT
A Moses, barrister

ORDERS: Leave is granted to the Applicant to issue Summonses to the Respondent for Production of the following: (i) All internal memoranda or documents (including in electronic form) created by Professor Bashir, Dr Horvath, Mr Wallace, Dr Stewart, Dr Kennedy, Dr Storm and Dr Barclay in relation to the termination and/or resignation of the complainant from 1 April 2000 to 3 October 2002; and (ii) All internal memoranda or documents (including in electronic form) created by Professor Bashir, Dr Horvath, Mr Wallace, Dr Stewart, Dr Kennedy, Dr Storm and Dr Barclay in relation to complaints to the NSW Medical Board relating to the Complainant from 1 October 2002 to 3 October 2002. Leave is refused with respect to 3(iv). The Respondent is ordered to bring the documents sought in 3(i) to the Tribunal for inspection by the Tribunal on the first day of hearing. Leave is granted to the Applicant to issue summonses to give evidence to Dr Horvath and Dr Storm. Leave is refused with respect to issuing a summons to Dr Barclay.


Reasons for Decision:

REASONS FOR DECISION

Introduction

1 On 18 October 2002 Dr Brendan O’Sullivan (the Applicant) lodged a complaint with the Anti-Discrimination Board against the Central Sydney Area Health Service (CSAHS) (the Respondent). Dr O’Sullivan alleged that he had been discriminated against during his employment with the Respondent in that he had been forced to resign at a time of documented illness. Dr O’Sullivan claimed that the Respondent sequestered over $77000 of sick leave and long service entitlements during the same period of illness. Dr O’Sullivan claimed that the acts of discrimination were committed from 4 June 2000 to 3 October 2002 when he claims that the final refusal to reconsider his ongoing appeals occurred.

2 The complaint referred to the Tribunal by the Anti Discrimination Board (ADB) concerns alleged acts of discrimination between 4 June 2000 and 3 October 2002. It is with respect to this complaint that the Tribunal has jurisdiction.

This Application

3 The Applicant in these proceedings requests that leave be granted for the issue of summonses requiring the attendance of Dr Diana Glen Horvath, Dr Harold Victor Storm and Dr William Barclay at the hearing and for the issue of summonses to produce the following documents:

(i) Documents 7, 8, 9, 11, 12, 18, 21, 22, 25, 26, 27, 28, 36, 37, 38, 40, 42, 43, 48, 49, 50 and 51 referred to in the Schedule of Additional Documents held by Rozelle Hospital (FOI matter) which was enclosed in the letter dated 22 October 2004 from Ms Gayle Berg of the Respondent to the Complainant;

(ii) All internal memorandums (sic) or documents (including in electronic form) created by Professor Bashir, Dr Horvath, Mr Wallace, Dr Stewart, Dr Kennedy, Dr Storm and Dr Barclay in relation to the termination and/or resignation of the complainant from 1 July 1999 to 3 October 2002;

(iii) All internal memoranda or documents (including in electronic form) created by Professor Bashir, Dr Horvath, Mr Wallace, Dr Stewart, Dr Kennedy, Dr Storm and Dr Barclay in relation to complaints to the NSW Medical Board relating to the complainant from 1 July 1999 to date; and

(iv) All files, notes or documents provided to Dr Barclay in order to assist him in the preparation of his report concerning the complainant dated 22 April 2003.

Submissions with respect to Witnesses

4 It was submitted on behalf of the Applicant that it was a matter for the Applicant and his legal representatives to exercise forensic judgment as to which witnesses he or his legal representatives choose to call in the advancement of his case. It was submitted that the witnesses required can give relevant and helpful evidence to the Tribunal in relation to the facts and circumstances the subject of these proceedings. It was submitted that the persons nominated by the Applicant for summonses to appear were key players in the events upon which Dr O’Sullivan relies to prove his allegations of unlawful discrimination.

5 It was submitted that Dr Horvath was at all material times the Chief Executive Officer of the Respondent and was primarily responsible for the manner in which Dr O’Sullivan had been treated by the CSAHS. In addition, it was submitted that Dr Horvath had made a number of serious complaints to the Medical Board concerning Dr O’Sullivan’s fitness to practice medicine in respect of which malice is alleged by Dr O’Sullivan. It was submitted that Dr Horvath had extensive meetings with Professor Bashir, the former Chief Executive Officer and that Dr Horvath is pivotal and central to these proceedings. Of relevance is how Dr Horvath acted following the letter from Dr Storm and that the CSAHS continued to treat the Applicant as guilty of misconduct. It was submitted that it would be grossly unfair and a denial of natural justice to deny the Applicant the right to run his case.

6 It was submitted that Dr Storm provided most of the information to Dr Horvath in relation to the complaints to the Medical Board. It was submitted that Dr Storm lost or otherwise withheld critical medical information/documentation of and concerning Dr O’Sullivan for a period of approximately 18 months which was central to the appeal process for Dr O’Sullivan. It was submitted that Dr Storm was instrumental in arranging the report of Dr Barclay. Dr Storm also made serious allegations of misconduct on the part of Dr O’Sullivan. It was submitted that these matters were all part of the res gestae in terms of the elements of proof of unlawful discrimination against Dr O’Sullivan. In a letter dated 12 December 2001 Dr Storm made the statement that "we should respond to him (Dr O’Sullivan) as an ill colleague" to Dr Horvath. It was submitted that even though these documents came into existence after the Applicant’s forced resignation these matters are connected to the earlier incidents and they still have a legitimate forensic purpose. It was submitted that although Dr O’Sullivan resigned under the threat of the matter being reported to the Independent Commission Against Corruption (ICAC) for taking a salary to which he was not entitled, the relevant correspondence continued afterwards for 2 to 3 years.

7 It was submitted that Dr Barclay produced a comprehensive medical report dated 22 April 2003 without either examining Dr O’Sullivan or even meeting him. It was submitted that there is material contained in the report which may be of probative value in these proceedings.

8 It was submitted on behalf of the Respondent that the Applicant’s complaint concerns his forced resignation at the time of his documented illness and that the critical factors to the complaint appear to have occurred in 2000. Dr Horvath was not the Chief Executive Officer of the Respondent at that time. The Respondent questioned the relevance of Dr Horvath’s evidence regarding the Applicant’s medical condition in June 2002. Additionally, it was submitted on behalf of the Respondent that no reference was made to Dr Horvath in the Applicant’s Points of Claim. It was submitted that "one can only speculate what Dr Horvath will say and in that sense it is a fishing expedition".

9 It was submitted on behalf of the Respondent that the letter from Dr Storm in which he refers to the Applicant as an "ill colleague" postdates the alleged discrimination and constructive dismissal and the Respondent questioned whether Dr Storm was able to give any relevant evidence as to the alleged acts of discrimination the subject of the complaint.

10 It was submitted that the report of Dr Barclay was prepared nearly three years after the alleged discrimination and the Respondent questioned its relevance to any alleged acts of discrimination said to have occurred in 2000.

Submissions with respect to the Documents being sought

11 It was submitted on behalf of the Applicant that the documents sought have a legitimate forensic purpose in these proceedings and that the summonses should be issued. Primary reliance was placed on section 70, section 73 and 84 of the Administrative Decisions Tribunal Act 1997. The Tribunal was also referred to the ADT decision in Moore –v- Commissioner of Police, NSW Police Service & Anor [2002] NSWADT (12 June 2002) and several other Tribunal decisions being C (No.2) –v- Secretary, NSW Treasury [2002] NSWADT 235 and LD –v- Voltime Pty Ltd (trading as the Crounlla Hotel) (EOD) [2001] NSWADTAP (22 May 2001). The Tribunal was also referred to some High Court Decisions being Pelechowski –v- The Registrar, Court of Appeal [1999] HCA 19 (6 May 1999) and Grassby –v- The Queen [1989] HCA 45; (1989) 168 CLR 1 F.C. 89/042.

12 It was submitted that the documents summonsed are those documents which were nominated as exempt under the Freedom of Information Act 1989 (FOI Act) was submitted on behalf of the Applicant that each case must be judged on its own merits. Reliance was placed in particular on paragraph 73 of C (No.2)’s case (op.cit.) in which the Deputy President of this Tribunal stated "It cannot be the case that if documents are capable of being "produced" under the FOI Act, then a party must rely on that procedure rather then summonsing the documents. Even if the documents have been produced to a party under the FOI Act, the same documents can be the subject of a summons. The original documents are not provided under the FOI Act, and as is the case in these proceedings, there is no guarantee that the documents produced under the FOI Act are a complete copy of the documents summonsed. The FOI Act is not an alternative statutory procedure to compel the production of documents nor is it an abuse of process to summons documents when a party has access to copies of those documents under the FOI Act." Reliance was also placed on the decision of the President of this Tribunal in Patsalis –v- Commissioner of Police, New South Wales [2003] NSWADT 171 (29 May 2003).

13 It was submitted on behalf of the Respondent that the documents being sought by the Applicant are exempt documents under the Freedom of Information legislation. The Tribunal was referred to the Tribunal’s decision in Patsalis’ case in which the President of the Tribunal stated that "where the terms of the summons, reasonably viewed, really cover the same scope as the FOI request it seems to me that the summons must ordinarily fail".

14 In addition, it was submitted that most of the documents in dispute postdate the complaint in that most of them (with four exceptions) came into existence in 2003.

15 Counsel for the Respondent conceded that the documents being sought at item (ii) are relevant to these proceedings but that the period covered by the request being 1 July 1999 to date is onerous and outside the parameters of the complaint. It was submitted that it should cover a lesser period and it was submitted that an appropriate period would be 1 April 1999 to 3 October 2002.

16 Counsel for the Respondent questioned the relevance of the documents being sought relating to the complaints to the Medical Board and submitted that they were of no legitimate forensic purpose.

17 Counsel for the Respondent submitted that the documents sought at item (iv) are of no relevance as they fall well outside the parameters of the complaint.

REASONS FOR DECISION

18 In coming to its decision the Tribunal has had regard to the particular circumstances of Dr O’Sullivan’s complaint, to the parameters of the complaint as referred to the Tribunal by the ADB and to the relevant case law.

19 The Tribunal shall deal with the summonses for documents first and then to the summonses to witnesses.

Documents

20 The Tribunal shall deal with each of the requested summonses set out at paragraph 3(i) to 3(iv) above separately.

Documents set out at 3(i)

21 It is noted that the Applicant made an application pursuant to the Freedom of Information Act 1989 for documents held by the Respondent pertaining to his employment with the Respondent. According to a letter from the Respondent to the Applicant dated 22 October 2004 of the 137 documents identified in the original FOI request, 5 documents were partially released or made exempt. An internal review was conducted and then the Applicant appealed to the Ombudsman under section 52 of the FOI Act with respect to those exempt documents. According to that letter, following discussions with the Ombudsman, the Respondent released documents 72, 73 and 137 to the Applicant’s former legal representative. On 28 May 2004 the Applicant lodged a new FOI application and as he was not satisfied with the determination, he requested an internal review of that determination. As a result of that internal review, it appears that 53 additional documents had not been previously released despite being relevant to the original FOI application. Of the 52 documents so identified 22 were considered to be exempt in accordance with Schedule 1, section 4(1)(c) of the FOI Act. According to the Respondent’s letter however, the Respondent was willing to release the documents to the Applicant’s former legal representative. It is these documents which the Applicant is keen to obtain and which are the subject of the summons at 3(i) of this decision.

22 The Applicant has requested that a summons be issued for these documents which have been the subject of an FOI request and which have been identified as exempt. It was submitted on behalf of the Applicant that even though these documents have been the subject of an FOI request they can still be summonsed to be produced to this Tribunal. Reliance was placed in particular on C(No.2)’s case.

23 With the greatest respect, the Tribunal is of the view that this is a misunderstanding of the relevant case law. As stated by the President of this Tribunal in Patsalis’ case:

...the whole point of FOI proceedings is to permit a structured environment to apply to disputes over requests by members of the community for access to official documents. The Parliament has laid down a detailed code as to the way in which those requests are to be dealt with and determined. It would put the whole FOI scheme on its head if people who had brought forward their request within an FOI framework then within the context of those very proceedings started using summonses with the same objective....Certainly where the terms of the summons, reasonably viewed, really cover the same scope as the FOI request, it seems to me that the summons must ordinarily fail.

24 C (No.2)’s case is not inconsistent with the President’s decision in Patsalis’ case. In that case the Deputy President said that a summons can still be issued in the Tribunal for the same documents that have been produced to a party under the FOI Act. That case did not deal with documents identified as ‘exempt’ under the FOI Act and were therefore not produced.

25 In the circumstances of these proceedings Dr O’Sullivan has requested documents under the FOI legislation. Some documents were produced but others were identified as exempt and it is those documents that Dr O’Sullivan is seeking. As stated above in Patsalis’ case, to issue a summons for those documents would be to subvert the objectives of the FOI legislation and would be an abuse of process. Accordingly, it is the Tribunal’s view that the request for a summons with respect to the documents identified in 3(i) must fail and is refused. However, given that the Respondent agreed to release those documents to the Applicant’s former solicitor and that he is no longer represented by that solicitor, the Tribunal directs that those documents identified in 3(i) are to be released to the Tribunal so that the Tribunal can inspect those documents and ascertain their relevance or otherwise.

Documents set out in 3(ii)

26 Summonses must have a legitimate forensic purpose and must not be for "fishing expeditions" (see Battenburg –v- Chief Executive Officer &Secretary, Union Club [2002] NSWADT 219 (31 October 2002). The Tribunal decision in Moore –v- Commissioner of Police, NSW Police Service & Anor [2002] NSWADT (12 June 2002) sets out the test in civil cases for determining whether or not a summons has a legitimate forensic purpose. In essence, the test is that the summonsing party must demonstrate that there are reasonable grounds to believe that the summonsed material would materially assist the summonsing party’s case. The documents sought in 3(ii) relate to the termination and/or resignation of the complainant and appear to be relevant to these proceedings.

27 Accordingly, the Tribunal is satisfied that they have a legitimate forensic purpose. However, as the complaint referred from the ADB is limited to the period 4 June 2000 to 3 October 2002, the Tribunal is of the view that the documents produced should be limited but considers a reasonable period to be 1April 2000 to 3 October 2002. The Tribunal is therefore satisfied that a summons should be issued for documents set out in 3(ii) but limited to the period 1 April 2000 to 3 October 2002.

Documents set out in 3(iii)

28 Again these documents sought appear to be relevant to these proceedings as they relate to part of the complaint by Dr O’Sullivan. The Tribunal is satisfied that the Applicant is not seeking to use the summons process as a means of obtaining documents in the hope that it may lead either to the ascertainment of witnesses or evidentiary documents (see Hunt –v- Wark (1986) 40 SASR 489; The Queen -v- White [1976] 13 SASR 276).

29 It is the Tribunal’s view that a summons seeking the documents listed in 3(iii) should be issued but again limited in scope and should end on 3 October 2002.

Documents set out in 3(iv)

30 According to the material before the Tribunal Dr Barclay prepared a report dated 22 April 2003 for the Respondent. In his letter to Dr Victor Storm, Dr Barclay stated that "this report is in response to your request that I review the file and prepare, on your behalf, a commentary and recommendations with respect to Dr O’Sullivan’s behaviour, particularly his letter writing, with a view to making a submission to the Medical Registration Board of New South Wales concerning him". The accompanying report details the documents relied upon in the preparation of the report. The documents which form part of the brief begin around the time of the Applicant’s early employment with the Respondent and end sometime in 2003. As stated above, a summons to produce documents cannot be used for the purposes of mere "fishing". There must be some reason to believe that the documents sought will be capable of being used as evidence and must be relevant to the proceedings. Furthermore, the documents sought must pertain to the complaint referred by the ADB to the Tribunal which, as stated earlier in this decision, covers the period 4 June 2000 to 3 October 2002.

31 Some of the documents sought extend beyond 3 October 2002, as indeed does the actual report prepared by Dr Barclay. In addition, the Tribunal is satisfied that some of the documents being sought would have already been produced to the Applicant pursuant to FOI and that some of the documents may have been identified as exempt. The Tribunal is of the view that to issue such a summons may amount to an abuse of process for the reasons set out in paragraph 25 above as it may inadvertently subvert the objectives of the FOI process. This summons is therefore refused.

Witnesses

32 Having regard to the circumstances of this particular case, the Tribunal is satisfied that the summonses should be issued to Dr Horvath and Dr Storm to give evidence to the Tribunal. The Tribunal is satisfied that Dr Horvath as the Chief Executive Officer of the Respondent has direct and relevant knowledge of the circumstances surrounding the actions taken by the Respondent with respect to the Applicant’s employment and/or resignation and the complaints to the Medical Board. The Tribunal is satisfied that Dr Horvath’s evidence would materially assist it in its determination of the complaint.

33 The Tribunal is also satisfied that a summons to Dr Storm should be issued to give evidence. The Tribunal is satisfied that Dr Storm is also able to give direct and relevant evidence concerning the circumstances surrounding the Applicant’s employment/resignation and the complaints to the Medical Board. The Tribunal is satisfied that Dr Strom’s evidence would materially assist the Tribunal in its decision.

34 The Tribunal is not, however, satisfied that Dr Barclay would be of any assistance with respect to the complaints of discrimination made by the Applicant nor their determination by the Tribunal. Additionally, Dr Barclay was commissioned to prepare his report well outside the scope of the complaint.

Orders

35 Leave is granted to the Applicant to issue Summonses to the Respondent for Production of the following:

(i) All internal memoranda or documents (including in electronic form) created by Professor Bashir, Dr Horvath, Mr Wallace, Dr Stewart, Dr Kennedy, Dr Storm and Dr Barclay in relation to the termination and/or resignation of the complainant from 1 April 2000 to 3 October 2002;

(ii) All internal memoranda or documents (including in electronic form) created by Professor Bashir, Dr Horvath, Mr Wallace, Dr Stewart, Dr Kennedy, Dr Storm and Dr Barclay in relation to complaints to the NSW Medical Board relating to the Complainant from 1 October 2002 to 3 October 2002.

36 Leave is refused with respect to 3(iv).

37 The Respondent is ordered to bring the documents sought in 3(i) to the Tribunal for inspection by the Tribunal on the first day of hearing.

38 Leave is granted to the Applicant to issue summonses to give evidence to Dr Horvath and Dr Storm.

39 Leave is refused with respect to issuing a summons to Dr Barclay.