QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:
	Smith v State of Queensland (Queensland Health) & Anor (No. 4) [2024] QIRC 67
	
PARTIES:	
	Smith, Paul Joseph
(First Applicant)

and

Sherlock, Susannah	
(Second Applicant)

v

State of Queensland (Queensland Health)
(First Respondent)

and

Thistlethwaite, Robert
(Second Respondent)

and

Webb, Robert 
(Third Respondent)
	
CASE NO.:
	AD/2022/86 & AD/2022/87
	
PROCEEDING:
	Application in existing proceedings	
DELIVERED ON:
	22 March 2024
	
MEMBER:

HEARD AT:	Power IC

On the papers 
	
ORDERS:
	Within 14 days, Evexia to produce to the Applicants a copy of the report.
	
CATCHWORDS:	INDUSTRIAL LAW – QUEENSLAND – GENERAL PROTECTIONS – Application in existing proceedings – where applicant filed a notice of non-party disclosure – where affected party objects to the notice of non-party disclosure – where applicant seeks a decision regarding the objections pursuant to r 64G of the Industrial Relations (Tribunals) Rules 2011 (Qld)
	
LEGISLATION AND OTHER INSTRUMENTS:
	Anti-Discrimination Act 1991 (Qld), s 133
Industrial Relations (Tribunals) Rules 2011 (Qld), rr 64B, 64E, 64F and 64G
Public Interest Disclosure Act 2010 (Qld), s 40(1)	
CASES:	Goldsmith v Sandilands [2002] HCA 31
Mohr-Edgar v Legal Aid Queensland [2023] ICQ 025
Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd (No. 2) [2020] QIRC 3
Weston and Parer v State of Queensland (Department of Justice and Attorney General) (No 4) [2016] QIRC 75 	

Reasons for Decision

Introduction

[1]	Dr Susannah Sherlock ('the Second Applicant') filed a 'Form 29 – Notice of Non-party disclosure' ('NNPD') on 3 January 2023 seeking the disclosure of documents from Evexia.

[2]	On 9 January 2023 the First Respondent sent correspondence to the Industrial Registry advising that it objected to the NNPD as an affected party pursuant to r 64E of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the Rules'). 

[3]	The NNPD was stayed pursuant to r 64F of the Rules and on 30 August 2023 the Applicants applied to lift the stay. 

[4]	The Second Applicant sent unsolicited correspondence to the Industrial Registry on 9 January 2023 responding to the First Respondent's objection.  

[5]	Following the issuing of a Directions Order by the Commission, written submissions were provided by the parties.

[6]	The resolution of this matter has been delayed due to continued disputes between the parties regarding the Applicants' Statement of Facts and Contentions ('SOFC'). The Applicants have filed a number of versions of their SOFC and ultimately the First Respondent filed an Application to dismiss. This Application was dismissed on 2 February 2024, and it was determined that the SOFC filed by the Applicants on 9 October 2023 would encompass their case. The finalisation of the Applicant's SOFC now allows for the test of direct relevance to be considered to determine the outstanding NNPD. 

Legislative framework

[7]	Rule 64G of the Rules relevantly provides that the Commission has the power to make any order it considers appropriate about an objection made to an NNPD:

64G	Industrial tribunal's decision about objection

(1)	Within 7 days after service of an objection under rule 64E, the party may apply to the industrial tribunal for a decision about the objection.

(2)	The industrial tribunal may make any order it considers appropriate including, but not limited to, an order—

(a)	lifting the stay; or

(b)	varying the notice; or

(c)	setting aside the notice.

(3)	Unless the industrial tribunal otherwise orders, each party to an application to decide an objection must bear the party's own costs of the application.

[8]	Rule 64B of the Rules provides the following:

64B	Notice requiring non-party production

(1)	A party to a proceeding may, by notice of non-party production, require a person who is not party to the proceeding (the non-party) to produce to the party, within 14 days after service of the notice on the non-party, a document –

(a)	directly relevant to a matter in issue in the proceeding; and

(b)	in the possession or under the control of the non-party; and

(c)	that is a document the non-party could be required to produce at the hearing for the proceeding.

(2)	The party may not require production of a document if there is available to the party another reasonably simple and inexpensive way of proving the matter sought to be proved by the document.

(3)	The non-party must comply with the notice but not before the end of 7 days after service of the notice on the non-party.

(4)	The requirement, under this rule, for a non-party to produce a document is not an ongoing duty.

[9]	Rule 64E of the Rules provides the following:

64E	Objection to production 

(1)	The non-party, or a person who has been served with a copy of the notice under rule 64 D, may object to the production of some or all of the documents mentioned in the notice within 7 days after its service or, with the leave of the industrial tribunal, a later time.   

(2)	Also, another person who would be affected by the notice and who has not been served may object to the production of some or all of the documents mentioned in the notice at any time with the leave of the industrial tribunal.

(3)	The objection must –

(a)	be written; and

(b)	be served on the party; and

(c)	if the person objecting (the objector) is not the non-party - be served on the nonparty; and

(d)	clearly state the reasons for the objection.

(4)	The reasons may include, but are not limited to, the following –

(a)	if the objector is the non-party - the expense and inconvenience likely to be incurred by the non-party in complying with the notice;

(b)	the lack of relevance to the proceeding of the documents mentioned in the notice;

(c)	the lack of particularity with which the documents are described;

(d)	a claim of privilege;

(e)	the confidential nature of the documents or their contents;

(f)	the effect production would have on any person;

(g)	if the objector was not served with the notice - the fact that the objector should have been served.

[10]	Rule 64F of the Rules provides:

64F	Objection stays notice

Service of an objection under rule 64E operates as a stay of the notice.

The NNPD

[11]	The Applicant described the following schedule of documents sought under the NNPD -  

Evexia report into work culture raised by Dr Sherlock accepted as PID. All emails / correspondence in relation to above between MNHHS and Evexia.

[12]	In the Form 29 NNPD, the Applicant outlined the matter in issue in the proceedings about which the documents sought are directly relevant in the following terms – 

•	This request is for documents and emails between MNHHS and Evexia regarding a workplace cultural review and the subsequent report.

•	Dr Sherlock made a PID in Nov 2019 to the EDMS Dr Judy Graves and subsequently to the integrity Unit in Jan 2020. Dr Graves informed Dr Sherlock that in response to the cultural complaints and the BPA survey (Best Practice Australia) which had identified the unit has [sic] having a 'toxic culture', the ED Dr David Rosengren had decided to organise the review by Evexia to offer workplace solutions. 

•	The Acting ED Critical Care informed the unit of the cultural review in in [sic] Feb 2020. After this announcement there was a further deterioration in communication and worsening culture due to the delay in implementation and ultimate feedback to staff when it concluded. 

•	The Co Directors were aware that Dr Sherlock had complained to Dr Graves around issues in the unit. The resultant cultural review was instrumental in causing further victimisation to her due to lack of change [sic] as a result of the recommendations.

•	The lack of changes to the leadership model caused Dr Sherlock to consider the unit psychologically unsafe, and resulted in significant stress and ultimately led to a request to transfer with reduced hours.

•	The Cultural review was not made public to the unit, only the Executive summary was shared which suggested more counselling and training. Dr Sherlock wishes to know what the full report recommendations were to confirm that appropriate management action was taken based on the independent report.  

•	Dr Sherlock has made a claim of victimisation which resulted from being held responsible for the cultural review without support from the Integrity unit despite asking for help to deal with reprisals. 

•	The report is relevant to the complaint made by Dr Sherlock alleging that inadequate management action was taken to ensure protection from victimisation. The Co Directorship model allowed the Directors to support each other and victimise the whistleblower. Dr Sherlock had suggested that the leadership model had allowed the toxic workplace culture to flourish and that lack of change [sic] subsequent to the cultural review had allowed further victimisation of her, registrar [sic] and later her husband. Under the PID Act a reprisal against a whistle blower [sic] or a second person in the belief that someone else has made a complaint is unlawful. Dr Sherlock believes the bullying of her husband which led to his hospitalisation with an acute psychosis related to work stress was due to inaction by Executives to make the workplace safe. This caused them financial hardship and further emotional distress.  

Applicants' submissions

[13]	The Applicants made the following submissions – 

•	The First Applicant claims he was repeatedly discriminated against and suffered detriment after his wife made a Public Interest Disclosure which involved the conduct of the Co-Directors of the Hyperbaric Unit at the RBWH. It was alleged that a toxic work culture allowed poor communication to create an unsafe workplace.

•	The level of intimidation after he raised a safety issue in August 2021 caused him to have a severe psychological injury requiring hospital admission.

•	As a result of the complaint by the Second Applicant and a workplace survey (which also identified the unit as a toxic workplace), Dr graves [sic], after discussion with Dr Rosengren (the Executive Director of RBWH) decided to have a cultural review of the unit. The unit were informed of this in January 2020 by the Acting Critical Care executive director, Ms Toleman.

•	The cultural review was delayed and many requests for assistance made by Dr Sherlock to Integrity regarding worsening interpersonal relationships and communication were ignored and not actioned.

•	During the cultural review, Dr Sherlock reported discriminatory rostering practices against herself and her husband to Jo Karabitsios. This was reported to the cultural reviewer in a telephone discussion (second interview) and also a formal complaint to Integrity and the CCC and later to the QHRC in 2022 after Mr Smith was again suffering indirect discrimination which is the basis of the GP/223/18 [sic] case. It was also reported directly to Mr Buttrum as a potential reprisal during the cultural review. 

•	Dr Sherlock requested a transfer from the Unit in late 2020 citing that the unit was psychologically unsafe and she had suffered reprisals without management action to protect her. The cultural review did not address the leadership model which allowed the Co Directors [sic] to bully people raising concerns in the unit. The lack of management action after the cultural review was completed caused her to leave the unit. 

•	After transferring out of the unit, Dr Sherlock reported further reprisals by way of reputational damage to Mr Buttrum (Acting ED Crit Care) and Ms Wells (HR) by comments made by both subjects to Ms Jean Halpin claiming Dr Sherlock had left under a cloud. This was reported to integrity [sic] and despite an investigation; the outcome of the action taken (if any) remains unknown to Dr Sherlock (the Discloser).

•	We contend that reprisal and victimisation after a PID are unlawful and the lack of action by MNHHS Integrity unit to investigate reprisal claims fully allowed the bullying and poor communication practices which affected safety, to continue unchecked. Under s 40(1)(b) of the PID Act and s 130 of the Anti-discrimination Act [sic] this is in breach of these Acts. 

•	The basis of the Public Interest Disclosure was that the unit culture was toxic and as a result of poor communication this led to a patient safety issue. This makes the cultural review highly relevant and also the management response to the complaint.

•	The review is relevant to the assertions that the unit was psychologically unsafe, communication was poor and safety incidents had occurred as a result. 

•	The cultural review further establishes that management were aware of the toxic culture but had not taken substantial actions to protect staff from discrimination and victimisation. This lead [sic] to further safety issues and allegedly Mr Smith's injury in 2021 due to ongoing reprisals (as defined in the PID Act) and victimisation (as defined in the AD Act). 

•	We contend in the SOFC that inaction allowed further discrimination to occur despite the First Application awaiting a formal investigation at the request of the Crime and Corruption Commission despite raising a complaint.

•	The report given to the MNHHS Executive goes to the matter of vicarious liability of the employer for Mr Smith's subsequent injury which we press was due to continued reprisals by discrimination and intimidation. 

•	We further submit that the interviews were not privileged and the use of  non disclosure [sic]  agreements in the setting of a serious injury as a reprisal after a PID. The Hon Wilson KC remarked that contractual agreements which limit the PID legislative purpose are unacceptable. The Coaldrake report highlighted similar concerns. Hon Wilson suggest that penalties should be introduced for non disclosure [sic] agreements which are used as silencing tactics. 

•	Mr Smith and his wife and [sic] entitled to the same facts the Employer has in relation to the risk of reprisal after his wife reported the toxic culture as part of her PID. Withholding the facts when they bear the onus of proof and there is legitimate forensic purpose would be unfair. 

•	As the allegations are serious and the cultural report is helpful to allow clarification of the issue of liability and preparation for cross examination as established in Browne v Dunn. 

•	Confidentiality was lost once the PID was before the QIRC as both subjects and discloser are now known s65(3)(c) and (7)(b) of the PID Act.

•	Further we contend failure to release the statement should be construed [sic] that the review may hinder the State's case whilst supporting Mr Smith and Dr Sherlock's claim that reprisals occurred as the leadership allowed them to due to the ongoing culture.

•	A recent review of the PID Act shows that reprisals are still occurring (48% of disclosers report reprisals) as a result of inadequate protections. None have been successfully prosecuted in Queensland. We contend it is important that this tide of reprisal is not condoned by the Courts and Employers take their obligations to protect those calling out wrongdoing seriously. There is no public benefit to mandatory disclosure being allowed to be undermined. In the settling of health care this reduces the safety of patients, and staff. If those making disclosures are allowed to be targeted by employees of MNHHS the PID Act is severely undermined. MNHHS needs to be seen to be transparent and open about what they knew and what actions they took to improve the Hyperbaric unit culture. The cultural review should be disclosed.  

First Respondent's submissions 

[14]	The First Respondent's submissions regarding their objections to the NNPD are summarised as follows:

•	The basis of the objection is that the Evexia Report is not directly relevant to any fact in issue in these proceedings. 

•	The Applicants must demonstrate that the documents sought in the Notice are directly relevant to a matter in issue. It is not enough that a document might be directly relevant, or that a document has some general background to the proceedings. The Applicants must convince the Commission that the documents sought in the Notice are directly relevant to a matter in issue in the proceedings. The Applicants' materials in support of the Notice do not reach that threshold. The Applicants have not explained how the Evexia Report contains anything that tends to prove or disprove an allegation in issue. Therefore, the Notice should be set aside.

•	In the Applicants' Form 4 filed 30 August 2023, the Applicants provide the following indication as to how they allege the Evexia Report might be relevant:

As the complaint regards reprisal and discrimination in the workplace which caused a psychological injury, the psychological appraisal of the culture in the unit is very relevant and allows better particularisation and preparation for examination of witnesses in the hearing. 

•	At a hearing of these proceedings, the Commission will need to determine whether, how and why some specific events occurred in the workplace. The Workplace's general 'culture' has no relevance to those findings. The Commission will not be aided in it's [sic] task by the Evexia Report. Indeed, it may serve to distract the parties from what could otherwise be quite narrow factual disputes. 

•	Further, the Applicant's Notice regarding the Evexia Report is a fishing expedition. The only link that the Applicants draw between the Evexia Report and an allegation in issue is that both are said to deal with culture in the workplace. One of many flaws in that argument is that a report into culture can only be opinion, which is inadmissible (outside some exceptions which do not apply here). Whilst the Commission is not bound by the rules of evidence and procedure, it must act judiciously. At its very highest, the Evexia Report is opinion, based on hearsay that has been procured through unsworn statements via a process that is nothing like that in proceedings which the Commission could rely on when forming its own views as to whether certain disputed events occurred.

•	Further still, if the argument advanced by the Applicants is that the Evexia Report into culture in the workplace tends to prove an allegation of fact made against an individual, then it is clear that the Applicants seek to rely on the Evexia Report or the purposes of tendency or similar fact evidence. The Commission is thereby invited to speculate as to whether it is more probable than not some fact in issue (which is not disclosed on the application) occurred by reference to opinion derived from unsworn statements. There is no basis for that approach. While the test of direct relevance is not identical to the test for admissibility, in considering whether a document is directly relevant the Commission must determine whether that document would tend to prove or disprove a matter in issue, which can only occur via testimony and material admitted into evidence.

•	Another flaw in the Applicants' argument is that the application for production is premature. The facts in issue in the proceedings are not yet clear. The Applicants' statement of facts and contentions has been objected to by the Respondents because it lacks the necessary clarity which would allow the Respondents a fair opportunity to understand the case against them. While the facts and contentions still unclear, the Applicants cannot discharge their onus that a document they seek in the Notice is directly relevant to a matter in issue, because the Commission would first need to be satisfied about what those matters in issue are. 

Applicants' submissions in reply

[15]	In reply, the Applicant made the following submissions – 

•	The Applicants must demonstrate that the document sought in the Notice are directly relevant to a matter in issue. The Applicants have alleged that the workplace was psychologically unsafe and that those calling out unsafe practices were victimised for doing so. Dr Sherlock had raised concerns directly with Dr Graves, then Integrity and finally with the Crime and Corruption Commission. This was prior to and after failed mediation with the person victimising her husband and a failure of the cultural review to bring about meaningful management action. The cultural review interviewed many employees and ex employees [sic] who participated in interviews; some several times. What the experts knew when preparing their recommendations is relevant. 

•	Due to lack of reasonable management action; not only did Dr Sherlock leave her position in the unit citing psychological safety concerns for herself, but her husband subsequently suffered a psychological injury due to ongoing alleged victimisation and discrimination. Th [sic] cultural review had publicly recommended changes in the leadership team. The private report give [sic] to the Executive is necessary to understand the extent of the recommendations to show much [sic] vicarious liability QH have for not acting when cultural issues and psychological safety was [sic] known to be an issue. The report and the response to the report are relevant to the issue to [sic] vicarious liability for reprisals in the setting of a Public Interest Disclosure. 

•	At the hearing of these proceedings, the Commission will need to determine whether, how and why some specific events occurred din [sic] the workplace. The workplace's general 'culture' is highly relevant when the injury to the worker is purely psychological and was examined by experts to give an opinion on how to improve it. Other witnesses have provided statements that they also called out bullying behaviour by the Directors, and the report will corroborate the extent to the problem [sic].

•	The link that the Applicants draw between the Evexia Report and an allegation in issue is that both are said to deal with culture in the workplace. Direct statements made to Evexia provides [sic] circumstantial evidence which although it is hearsay, can be used to prepare for cross examination of witnesses under oath. Whilst the Commission is not bound by the rules of evidence and procedure, it must act judiciously.  At its very highest, the Evexia Report is expert opinion, which the Commission could rely on when forming its own views as to whether certain disputed events occurred.

•	Further still, if the argument advanced by the Respondents is that the Evexia Report into Culture in the workplace may prove an allegation of fact made against an individual, then the Evexia Report is relevant for the purposes of tendency or similar fact evidence. The test of direct relevance is not identical to the test for admissibility, in considering whether a document is directly relevant the Commission must determine whether that document would tend to prove or disprove a matter in issue, which can only occur via testimony and material admitted into evidence. Dr Sherlock had reported that others in the unit had been threatened and had been subjected to lack [sic] of equal employment opportunity as part of the Public Interest Disclosure in 2019. This has always been a statement of fact. It was the PID which created the reprisals in the workplace which was already culturally identified to warrant a review. The cultural review was to find solutions to problems already identified by a survey performed prior to the PID and demonstrated in Dr Sherlock's PID. It is crucial to the Applicants [sic] claims to have disclosure of how many recommendations were made and what the response to those recommendations were made prior to the injury. The Applicants allege there was inadequate response from MNHHS and that this allowed Mr Smith to become injured. Their case requires disclosure of the facts of what the advice was made to assist quantum of damages [sic]. 

•	The Applicants have the right to the cultural report to determine degree of liability.

•	The Notice is not a fishing expedition, the cultural review came into existence because the unit had already been identified as 'toxic' in 2019. The recommendations by the expert psychologists is [sic] highly relevant in examining what was recommended and what was done (or not done) which may have prevented the psychological injury.

Consideration
[16]	The NNPD filed on Evexia sought the following documents -  

Evexia report into work culture raised by Dr Sherlock accepted as PID. All emails / correspondence in relation to above between MNHHS and Evexia.

[17]	The First Respondent objected to lifting the stay on the NNPD on the basis that the documents sought in the notice lacked direct relevance to the proceeding. The First Respondent also objected to the lifting of the stay on the basis that the NNPD was premature as it had been filed prior to the Applicant’s SOFC. After significant disagreement as to the particulars included in the Applicant's SOFC, the SOFC has now been settled. 

[18]	Rule 64B entitles the Applicant to require (by a notice of non-party disclosure) production of a document which inter alia is directly relevant to a matter in issue in the proceeding. In Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd (No. 2), Commissioner Black stated the following:

In Xstrata Queensland Ltd v Santos Ltd & Ors, McMurdo J was asked to consider the distinction between the test of relevance under the general law and the requirement of the Uniform Civil Procedure Rules 1999 (Qld) (UCRP) which is that only directly relevant documents must be disclosed. In this respect, McMurdo J said that "a document is directly relevant in this sense only if it tends to prove or disprove an allegation in issue in the proceedings."

[19]	In Goldsmith v Sandilands the High Court considered that evidence is relevant "…if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding."

[20]	A number of principles relevant to the task of considering an objection to disclosure were identified in Weston and Parer v State of Queensland (Department of Justice and Attorney General) (No. 4):

The case law relating to disclosure establishes a number of principles including the following which are relevant to the task confronting the Commission:

•	A decision of the Commission to order disclosure is a quintessential exercise of discretion.

•	To be discoverable a document must relate to the questions or issues to be decided by the proceedings.

•	A document is relevant if it contains information which enables the party calling for production of the document to advance its own case or damage the case of their adversary or it is a document which may fairly lead to a train of inquiry which may have either of those consequences.

•	A party will not be required to produce documents where to do so would be oppressive.

•	A request for disclosure must not be in the nature of a fishing expedition in the sense that it is an endeavour not to obtain evidence to support a case but to discover whether there is a case at all.

•	Orders for disclosure should not be made for the purpose of enabling a party to attack credibility.

[21]	The question of relevance was considered by President Davis in Mohr-Edgar v Legal Aid Queensland where he stated – 

To be relevant, a document does not have to in itself prove the case of the party seeking production of it. It is sufficient if the document tends to prove or disprove an allegation in issue in the proceedings.

[22]	To determine if the documents sought are directly relevant to the questions or issues to be decided by the proceedings, it is necessary to consider what the questions or issues are in the substantive proceedings. This has not been an easy task in this matter, with a number of versions of the Applicant's SOFC filed as a consequence of the lack of clarity with respect to the contentions pleaded. 

[23]	The difficulty in considering whether the documents sought are directly relevant to a matter in issue is that the Applicants' SOFC has been drafted in a manner more akin to a workplace grievance than an anti-discrimination claim. As best I understand it, the following contentions have been outlined by the Applicants – 

(a)	Victimisation against Mr Smith based on imputed characteristics of a person via 'relationship status' and public interest disclosure (PID) status as a protected attribute. 

•	Mr Smith was victimised by the lack of ability to apply for a position by not advertising the position and unlawfully extending the temporary position to another employee. 

(b)	Indirect discrimination against Mr Smith in the recruitment process to the vacant position on the basis that other applicants who did not have a PID against Dr Thistlethwaite could apply for the position. In the alternative, this conduct was reprisal against Mr Smith for making complaints of previous discrimination in a PID raised by his wife Dr Sherlock.

(c)	Indirect discrimination against Mr Smith and Dr Sherlock based on stereotypical assumptions linked to marital status.

•	Dr Thistlethwaite had made a stereotypical assumption that Dr Sherlock and Mr Smith influenced each other's behaviour at work. 

•	The introduction of a conflict-of-interest policy only applied to this couple who had made a PID against Dr Thistlethwaite. This policy did not affect other married couples at RBWH or the unit itself. 

(d)	Victimisation against Mr Smith

•	Following Dr Sherlock's complaint to the Directors regarding the conflict-of-interest management process, Dr Thistlethwaite stated via reply email on 23 July 2020 that "there is no obligation to provide any ongoing work to a casual employee". This constituted a threat to not roster Mr Smith.

•	Dr Thistlethwaite did not advertise the vacant position left by Mr King rendering Mr Smith unable to apply for the permanent position. 

•	Dr Thistlethwaite threatened Mr Smith with employment security following Dr Sherlock's request that he be removed from the interview panel due to concerns regarding potential discrimination.

(e)	Reprisal against Dr Sherlock 

•	Reprisals pursuant to s 40(1) of the Public Interest Disclosure Act in the form of derogatory statements that Dr Sherlock had left the unit 'under a cloud' made by Dr Thistlethwaite and Dr Webb in a meeting to HR, Rebecca Wells and Mr Buttrum in November 2020.

(f)	Victimisation of Dr Sherlock

•	The actions of Dr Mark Mattiussi in attempting to limit Dr Sherlock's scope of practice via an email on 10 July 2021 was an action of victimisation by the First Respondent. 

(g)	Vicarious liability

•	The State is vicariously liable for the contraventions of its employees pursuant to s 133 of the Anti-Discrimination Act.

[24]	The vast majority of the Applicant's submissions do not address the question of direct relevance to a matter in issue in the proceeding. Where the question of relevance is addressed in their submissions, it is in reference to matters unrelated to the Applicants' legal contentions. For example, the Applicants contend that the Evexia report is relevant to "assertions that the unit was psychologically unsafe, communication was poor and safety incidents had occurred as a result"." This is again a contention in the form of a workplace grievance and is of no assistance in determining direct relevance to a matter in issue. 

[25]	I note the First Respondent's submissions that the Evexia report into the workplace culture can only be opinion based on hearsay procured through unsworn statements. That is not dissimilar to any other workplace investigation. Whilst any conclusions may not be useful to the Commission, statements obtained at the time of the report are directly relevant to the nature of the complaints made by Dr Sherlock and Mr Smith. If the content of the unsworn statements is directly relevant, the authors of such statements can be called to give evidence at the hearing of this matter. 

[26]	I note in the NNPD Dr Sherlock states that "the report is relevant to the complaint made by Dr Sherlock alleging that inadequate management action was taken to ensure protection from victimisation". It is unclear how the Applicant contends that 'inadequate management action' contravenes the AD Act in these circumstances. It seems to me that the only relevance to a matter in issue is the allegation that the First Respondent is vicariously liable for any contraventions by its employees in this matter. The Evexia report is directly relevant as it may prove or disprove the First Respondent's knowledge of the complaints at the time of the report. Accordingly, it should be disclosed to the Applicants. 

[27]	Whilst I am of the view that the Evexia report is directly relevant to the proceedings,  the request for correspondence between MNHHS and Evexia in relation to the report appears to be a fishing expedition. The Applicants have not provided an adequate explanation as to why the communications are sought or on what basis the communications between the parties are directly relevant to a matter in issue. In the absence of an adequate explanation, I am not satisfied that such communications are directly relevant to a matter in issue in the proceedings. 

Order

[28]	I make the following order:

1.	Within 14 days, Evexia to produce to the Applicants a copy of the report.