Elka Simjanovska v Roads and Traffic Authority [2007] NSWIRComm 23 (12 February 2007)

Last Updated: 20 June 2007

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Elka Simjanovska v Roads and Traffic Authority. [2007] NSWIRComm 23



FILE NUMBER(S): IRC 157

HEARING DATE(S): 12/02/2007

EX TEMPORE DATE: 12 February 2007
PARTIES:
APPELLANT:
Elka Simjanovska

RESPONDENT:
Roads and Traffic Authority

CORAM: Haylen J


CATCHWORDS: Appeal - respondent's summons for production of medical records - access granted by Deputy Industrial Registrar - issues of confidentiality and restricted access to documents raised by applicant in substantive proceedings - access order modified on appeal having regard to sensitive nature of documents - access limited to three nominated solicitors subject to written undertaking as to confidentiality

LEGAL REPRESENTATIVES

APPLICANT:
Elka Simjanovska
(unrepresented)


RESPONDENT:
Mr D Mahendra, Solicitor
SOLICITORS:
Spark Helmore



CASES CITED:

LEGISLATION CITED:



JUDGMENT:

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: Haylen J

12 February 2007

Matter No IRC 157 of 2007

APPLICATION BY ELKA SIMJANOVSKA v ROADS AND TRAFFIC AUTHORITY
Application by Elka Simjanovska for leave to appeal and appeal against a decision of Deputy Industrial Registrar Anastasi given on 31.1.2007 in Matter Nos IRC 4554 of 2005, 2762 of 2006 and 3138 of 2006

EX TEMPORE JUDGMENT
[2007] NSWIRComm 23

Having regard to the nature of these proceedings and the other related proceedings, my reasons for decision will be relatively brief.

Ms Simjanovska has three matters before the Commission seeking relief under s 213 of the Act alleging victimisation. There appear to have been at least some interlocutory proceedings in these matters which I understand and are now listed for substantive hearing commencing on 8 March 2007.

In January 2007, solicitors acting for the respondent to the application, that is, the Roads and Traffic Authority, issued summonses for the production of medical records and those summonses for production were directed to nine individual medical practitioners. It is sufficient to say that broadly, the summons sought the production of the medical records relating to Ms Simjanovska. The applicant took the step of challenging the issuing of those summonses and sought that they each be set aside, and did so way of notice of motion. That notice of motion came before Sams DP and on 30 January 2007 his Honour dismissed the motion and noted that the return date on the summons would proceed, namely the following day, 31 January 2007. On that day, the production of documents in answer to the summons directed to each of the nine medical practitioners came before Deputy Industrial Registrar Anastasi. It appears (although I have no transcript of the proceedings) that a general order was made giving access to the parties with first access given to the applicant, Ms Simjanovska. She had sought access on a sole-access basis for a period of 14 days, but apparently that was not acceded to. It is against the access order made by the Deputy Industrial Registrar that Ms Simjanovska has brought this appeal.

The appeal, in its amended form, gives a quite detailed history of the process. It raises a number of general questions about the process involved in the issuing of summons for production, and then in particular deals with the access granted regarding those documents. I have formed the view that all these questions do not need attention for the proper disposition of the appeal. I should say that the appellant complains that no decision was made to grant photocopying access to the documents: I am informed by the parties that access has been given to both parties with Ms Simjanovska having the opportunity to photocopy any of the documents. That formal access with photocopying was completed by Ms Simjanovska on 6 February 2007. The respondent has had access but not photocopy access to the documents.

There appear to be a class of documents over which privilege is claimed but it is no part of this appeal to deal with that claim. The appellant complains that she was not given enough time to finish the task of access; that she needed to obtain these documents to assist with legal advice, although she is self-represented in these proceedings as she was before the Deputy Registrar and before Sams DP, and as it appears, she is likely to be on the final hearing of the matter. She complains that there is a denial of procedural fairness; that the production of the documents would harm her health and well-being, (although no evidence was called to support this contention) and that their production is a breach of privacy or confidentiality.


The relief sought is to quash the order for access, (although access has already been obtained) and alternatively, to allow the respondent to only view the medical records. The appellant also seeks to be given until 14 February 2007 to complete her access to the documents before they are generally given to the respondent to have access or to complete that access: this course, ultimately, was not opposed by the respondent.

It seems to me that the issues between the parties are really issues that fall within a short compass. On the material that I have before me, it appears that each summons was regularly sought. The documents were brought to the Registry in the usual way and the appellant, Ms Simjanovska, has had the opportunity of raising by way of notice of motion a challenge to each and every one of those summonses directed to medical practitioners. It seems to me that the issue I have to decide in this appeal is the nature of the access to be granted having regard to all the circumstances. On consideration of the matters raised, I think it is appropriate that there be a variation to the general access order granted by the Deputy Industrial Registrar, having regard to the sensitive nature of the documents.

There is no issue between the parties that there is an appeal available under s 194 of the Act. Under s 194(5), on the hearing of such an appeal the Commission may take a number of steps, including the variation of the decision. It seems to me that this is a matter where the orders, I might say understandably made by the Deputy Industrial Registrar for access, ought to be clarified on appeal.

In my view, the appropriate order for access is that access by the respondent to the medical records produced on summons in this matter, including photocopying access, will be given on the condition that a written undertaking as to confidentiality be supplied to the Registrar and that there be an undertaking that the access to those medical records will be used for the purpose of this litigation only. In the first instance, this access, including photocopy access, is to be limited to three nominated solicitors from the firm of solicitors acting for the respondent, namely Ms Nand, Mr Mahendra and Ms Leahy. The respondent's access is to be granted on or after 14 February 2007.

If it becomes an issue about access involving an employee of the Roads and Traffic Authority, leave is granted for that matter to be raised with a view to a further variation of the order but in the absence of such a variation, there will be no access granted to an employee of the Roads and Traffic Authority. Those are the orders made on the appeal.

LAST UPDATED: 3 August 2007