Dunlavie v Industrial Relations Secretary in respect of the Department of Communities and Justice (Corrective Services NSW) [2023] NSWIRComm 1043

Dunlavie v Industrial Relations Secretary in respect of the Department of Communities and Justice (Corrective Services NSW) [2023] NSWIRComm 1043

The privileged submission did not require item 1 of the Summons to be set aside because Mr Dunlavie did not press for its production and the appropriate order was to release the Department from producing that document. Item 2 should be adjourned because the parties were exploring alternative production arrangements. Items 3, 4 and 7 should not be set aside because the documents had apparent relevance to the misconduct and penalty issues and to cross-examination; s 5(2) of the Public Interest Disclosures Act 1994 preserved the Commission's powers under the Industrial Relations Act 1996 so s 22 did not limit production under the Summons; and the asserted confidentiality and public interest...

Jurisdiction
Australia
Judgment Date
09 May 2023
Procedural Posture
Appeal Against Dismissal as a First Class Correctional Officer Pursuant to S 98 of the Industrial Relations Act 1996 / Notice of Motion Seeking Orders That a Summons to Produce Be Set Aside in Part
Outcome
Motion dismissed except that the Department was released from producing the privileged submission and the application concerning item 2 of the Summons was adjourned.
Legal Topics
['summons to Produce' 'legal Professional Privilege' 'apparent Relevance' 'public Interest Disclosures' 'confidentiality' 'commission Discretion' 'non Disclosure Orders']
['employment and Industrial Law' 'industrial Relations' 'procedure'] ['summons to Produce' 'legal Professional Privilege' 'apparent Relevance' 'public Interest Disclosures' 'confidentiality' 'commission Discretion' 'non Disclosure Orders']

Case Brief

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Procedural Posture

Appeal Against Dismissal as a First Class Correctional Officer Pursuant to S 98 of the Industrial Relations Act 1996 / Notice of Motion Seeking Orders That a Summons to Produce Be Set Aside in Part

Legal Issues

  1. 1 ['Whether legal professional privilege over the submission referred to in the affidavit of David Aitken warranted setting aside item 1 of the Summons or releasing the Department from producing that document.' 'Whether the Motion should be determined insofar as it sought to set aside item 2 of the Summons.' 'Whether documents sought by items 3, 4 and 7 of the Summons had apparent relevance or a legitimate forensic purpose.' "Whether s 22 of the Public Interest Disclosures Act 1994 prohibited production of the documents or limited the Commission's powers under s 165 of the Industrial Relations Act 1996." 'Whether, as a matter of discretion and having regard to the Public Interest Disclosures Act 1994 and the public interest, the Commission should set aside items 3, 4 and 7 of the Summons.']

Ratio Decidendi

The privileged submission did not require item 1 of the Summons to be set aside because Mr Dunlavie did not press for its production and the appropriate order was to release the Department from producing that document. Item 2 should be adjourned because the parties were exploring alternative production arrangements. Items 3, 4 and 7 should not be set aside because the documents had apparent relevance to the misconduct and penalty issues and to cross-examination; s 5(2) of the Public Interest Disclosures Act 1994 preserved the Commission's powers under the Industrial Relations Act 1996 so s 22 did not limit production under the Summons; and the asserted confidentiality and public interest...

Court Disposition

Motion dismissed except that the Department was released from producing the privileged submission and the application concerning item 2 of the Summons was adjourned.

Orders

  • ['The Department is released from any obligation to produce the "submission" referred to in pars 4 and 5 of the affidavit of David Aitken affirmed on 6 April 2023.' 'In so far as the Motion seeks an order that item 2 of the Summons be set aside, it is adjourned to a date to be fixed.' 'The Motion is otherwise...