Bir v Western Sydney Local Health District [2022] NSWCATAD 256

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bir v Western Sydney Local Health District [2022] NSWCATAD 256 Hearing dates: On the papers Date of orders: 01 August 2022 Decision date: 01 August 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: L Andelman, Senior Member Decision: 1. Pursuant to s 50(2) of the Civil and Administrative Act 2013, the Tribunal dispenses with a hearing. 2. The Respondent is excused from producing documents pursuant to paragraphs 5 and 6 of the Summons on the basis that there is no legitimate forensic purpose for their production. Catchwords: PRACTICE AND PROCEDURE – summons to produce documents - whether documents have legitimate forensic purpose Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Anti-Discrimination Act 1977 (NSW) Cases Cited: CPJ v The University of Newcastle [2017] NSWCATAD 350 Sharpe v Grobbel [2017] NSWSC 1065 Category: Procedural rulings Parties: Omila Bir (Applicant) Western Sydney Local Health District (Respondent) Representation: Scott Calnan Lawyer (Applicant) Bartier Perry Pty Limited (Respondent) File Number(s): 2022/00028143

REASONS FOR DECISION

Background 1. On 31 January 2022, Anti-Discrimination NSW referred the applicant's complaint to the Tribunal pursuant to s93C(b) of the Anti-Discrimination Act 1977 (NSW) (ADA). The complaint is that the respondent discriminated against the applicant based on her race and victimised her in contravention of ss 8 and 50 of the ADA. The period of the discrimination complaint is 14 July 2020 to 14 July 2021. The period of the victimisation complaint is 14 January 2021 to 26 April 2021. 2. On 30 May 2022, the Registrar approved the applicant's application for a summons for production to be issued on the respondent seeking documents in six different categories. On 30 June 2022 the respondent produced documents pursuant to the first four categories but opposed production of documents in category five and six on the basis that there is no legitimate forensic purpose. 3. Categories five and six are limited to the 14 July 2020 to 26 April 2021 time frame and are in the following terms: 1. Any requests by the applicant for participation in courses and training and the responses (and reasons for those responses) by the respondent to those requests; and 2. Any anonymous letters circulating at the place of the applicant's employment concerning her, any complaints made by the applicant in relation to any such letters and any response by the respondent to any such complaints. 1. The applicant filed an Amended Points of Claim on 11 July 2022. 2. On 30 June 2022, the parties requested that this matter be determined on the papers. I am satisfied that the matter can be adequately determined in the absence of the parties, the Tribunal dispenses with a hearing pursuant to s50(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act).

Relevant Principles 1. Pursuant to the CAT Act, the Tribunal controls the issuing of summonses. Section 48 of the CAT Act provides that a registrar may on the application of a party to proceedings or at the direction of the Tribunal issue a summons. 2. The Tribunal's guiding principle when exercising any power under the (CAT Act), is to "facilitate the just, quick and cheap resolution of the 'real issues' in proceedings": s 36(1). 3. In CPJ v The University of Newcastle [2017] NSWCATAD 350 at [8] to [12], Hennessy DP stated that: The onus is on the party attempting to procure the material to demonstrate a legitimate forensic purpose by reference to the issues as disclosed in the pleadings: Becwell Legal Services Pty Ltd v McMaster [2011] FCA 1501 at [27]. 4. The principles to be applied when considering whether there is a legitimate forensic purpose was considered in Sharpe v Grobbel [2017] NSWSC 1065. At [35] Brereton J summarised the principle as being "… that there is a reasonable basis for supposing that the material called for will likely add, in the end, in some way or another, to the relevant evidence in the case. This reflects the notions that the documents relate to, throw light on or are sufficiently relevant to the dispute; that they "appear relevant in the sense they relate to the subject matter of the proceedings"; or that they could possibly throw light on the issues in the case" (footnotes removed).

Pleadings and submissions of the parties 1. The Amended Points of Claim pleads in paragraph 72 that certain conduct ought to be found by the Tribunal to be a breach of s8(2)(b) and (c) of the ADA. 2. Paragraph 72 makes no reference to participation in courses and training. Sub-paragraphs 72(e) and (f) refer to the 2021 investigation and dismissal of the applicant's conduct. Paragraphs 36 to 41 of the Amended Points of Claim states that the investigation was commenced because she had made complaints against other persons. There is no reference to any anonymous letters. 3. On 27 May 2022, the applicant provided submissions in support of the summons which are to be read together with the summons form and application. 4. Regarding item 5 of the list of documents, the applicant submitted that the documents are relevant in that 'there has been a long history of the applicant being treated differently in relation to education and training at her work because of her race.' The applicant referred to pg. 7 of the applicant's original complaint to Anti-Discrimination NSW: From this point on (5 June 2017) Ms Lorenzen denied me participation in courses and other activities when participation was granted to others… 1. Regarding item 6 of the list of documents, the applicant submitted that the documents are relevant as the applicant was informed about an anonymous letter that mentioned her on 27 July 2020. The applicant referred to pg. 7 of the applicant's original complaint to Anti-Discrimination NSW: On 5 September 2019, Ms Lorenzen informed me by letter that complaints had been made against me in an anonymous letter that were going to be investigated…. the letter asked for a written response by 12 September 2019 and asked me to attend a misconduct interview on 16 September 2019. This investigation continued for 8 months…Suddenly on 16 April 2020 these allegations were withdrawn. No explanation was offered as to why…

Consideration 1. The applicant's complaint has been referred to the Tribunal for determination. Relevantly, the period of the complaint, the number of complaints and the types of complaints are set out in the President's Summary of Complaint. 2. In determining whether a party is required to produce documents, where there is an objection based on 'legitimate forensic purpose', it is relevant to consider the scope of the President's Summary of Complaint and the applicant's Point of Claim. 3. The applicant's claim is for documents is within the complaint period, however, even on a broad view as to what may be ultimately regarded as within the scope of the applicant's complaint, the documents sought are not about matters she claims were discriminatory in the Amended Points of Claim. 4. Furthermore, on the face of it, the documents sought in paragraphs five and six would, in most part, be in her possession. These include any request she has made for training, any responses she received in response, complaints made by the applicant and responses she received from the respondent. The applicant has not submitted that she no longer has this information in her possession. These documents were created between July 2020 to July 2021, a relatively recent period. 5. The only category of documents that would not be in the applicant's possession are 'any anonymous letters circulating at the place of the applicant's employment.' 6. It is not clear what relevance these documents would have to the Tribunal's role in determining the applicant's claim. As referred to above, there is no reference to a complaint based on anonymous letters in the Amended Points of Claim. At its highest, the applicant in her original complaint of discrimination mentioned a reference to an anonymous letter, however, does not plead that the anonymous letter was an act of discrimination on the ground of race or that the respondent's conduct regarding the anonymous letter was an act of discrimination on the ground of race. 7. For the reasons above, The Tribunal is satisfied that the categories of documents sought by the applicant in paragraphs 5 and 6 of the Summons have no legitimate purpose to the Tribunal's task of determining the applicant's complaint.

Orders 1. The Tribunal makes the following Orders: 1. Pursuant to s 50(2) of the Civil and Administrative Act 2013, the Tribunal dispenses with a hearing. 2. The Respondent is excused from producing documents pursuant to paragraphs 5 and 6 of the Summons on the basis that there is no legitimate forensic purpose for their production.

********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 August 2022