New South Wales Nurses and Midwives’ Association v the Health Secretary on behalf of Western NSW Local Health District [2019] NSWIRComm 1047

New South Wales Nurses and Midwives’ Association v the Health Secretary on behalf of Western NSW Local Health District [2019] NSWIRComm 1047

The Notice to Produce is set aside as the Association did not demonstrate a legitimate forensic purpose or that the documents sought would materially assist its case. The LHD complied with its obligations by providing sufficient material to Ms Mines to enable her to fully understand the allegations and respond; provision of the complete investigation report is not mandatory under the Policy Directive. The Commission does not have the power under s136 or s137 of the Act to order compliance with the Policy Directive as sought by the Association. No grounds exist to support the victimisation claim as no valid application was made under s213 of the Act and there is insufficient evidence.

Parties
Applicant (respondent on the Motion): New South Wales Nurses and Midwives' Association; Respondent (applicant on the Motion): Health Secretary on behalf of Western NSW Local Health District
Jurisdiction
Australia
Judgment Date
23 July 2019
Procedural Posture
Industrial Dispute Notice of Motion (interlocutory) / Motion to Set Aside Notice to Produce
Outcome
Notice to Produce set aside; motion upheld; costs reserved
Legal Topics
Interlocutory Proceedings, Industrial Dispute, Misconduct, Adverse Findings, Remedial Action, Notice to Produce, Policy Directive Compliance, Jurisdiction, Abuse of Process, Legitimate Forensic Purpose
Employment and Industrial Law Interlocutory Proceedings Industrial Dispute Misconduct Adverse Findings Remedial Action Notice to Produce Policy Directive Compliance +3 more

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Parties

New South Wales Nurses and Midwives' Association

Applicant (respondent on the Motion)

Health Secretary on behalf of Western NSW Local Health District

Respondent (applicant on the Motion)

Procedural Posture

Industrial Dispute Notice of Motion (interlocutory) / Motion to Set Aside Notice to Produce

Legal Issues

  1. 1 Whether the Notice to Produce served by the Association should be set aside
  2. 2 Whether the Local Health District complied with its obligations under the NSW Health Managing Misconduct Policy Directive PD2014_042
  3. 3 Whether the Commission has jurisdiction to order compliance with the Policy Directive

Ratio Decidendi

The Notice to Produce is set aside as the Association did not demonstrate a legitimate forensic purpose or that the documents sought would materially assist its case. The LHD complied with its obligations by providing sufficient material to Ms Mines to enable her to fully understand the allegations and respond; provision of the complete investigation report is not mandatory under the Policy Directive. The Commission does not have the power under s136 or s137 of the Act to order compliance with the Policy Directive as sought by the Association. No grounds exist to support the victimisation claim as no valid application was made under s213 of the Act and there is insufficient evidence.

Court Disposition

Notice to Produce set aside; motion upheld; costs reserved

Orders

  • The proper respondent is the Health Secretary on behalf of Western NSW Local Health District
  • The notice of motion filed by the LHD on 10 April 2018 is granted