QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:		LLM Holdings Pty Ltd & Ors v Michalakellis
[2019] QIRC 075
	
PARTIES:	
	LLM Holdings Pty Ltd
(First Applicant)

&

Grant Reesby
(Second Applicant)

&

Sam Gibson
(Third Applicant)

v

Dimitri Michalakellis
(Respondent)
	
CASE NO:
	AD/2018/83	
PROCEEDING:
	Application to set aside attendance notices
	
DELIVERED ON:
	2 July 2019	
HEARING DATE:
	On the papers	
HEARD AT:
	Brisbane	
MEMBER:
	Knight IC	
ORDERS:	1.	The Attendance Notice to Produce dated 29 March 2019 set aside in part.

2.	The Attendance Notice to Produce dated 1 April 2019 is to be complied with. 
	
 CATCHWORDS:	ANTI-DISCRIMINATION – DISCRIMINATION AND VICTIMISATION IN THE WORKPLACE – application in existing proceedings – where respondent served attendance notices to produce on applicants – where applicants object to production on grounds of relevance, oppressiveness and non-compliance with Industrial Relations (Tribunal) Rules 2011 (Qld) – whether Commission should set aside part or all of attendance notices. 
	
LEGISLATION:

CASES:	Anti-Discrimination Act 1991 (Qld)

Industrial Relations (Tribunal) Rules 2011 (Qld)

Commissioner for Railways v Small (1938) 38 SR (NSW) 564

Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55

DP World Brisbane Pty Ltd v Rogers & Anor [2014] ICQ 010

R v Marks; ex parte Australian Building Construction Employees and Builders Labourers Federation (1981) 147 CLR 471

Re Clerks (Alcoa of Australia – Mining and Refining) Consolidated Award 1985 (Print H2892)

The Commonwealth of Australia v Northern Land Council (1993) 176 CLR 604	

Reasons for Decision

[1]	Mr Dimitri Michalakellis ("the respondent"), who is the complainant in the substantive proceedings, filed attendance notices to produce on 29 March 2019 ("the first notice") and 1 April 2019 ("the second notice"), which sought a range of material from LLM Holdings Pty Limited, Mr Grant Reesby and Mr Sam Gibson ("the applicants"). They are the respondents in the substantive proceedings. 

[2]	On 3 April 2019, the applicants filed an application in existing proceedings seeking that the notices be set aside in their entirety pursuant to the Industrial Relations (Tribunals) Rules 2011 (Qld) ("the Rules").

[3]	On 8 April 2019, the respondent filed written submissions in opposition to the setting aside of the notices.

[4]	By correspondence, the parties enjoined the Commission to decide the objection on the papers based on the material filed heretofore without the need for a hearing.

[5]	For the reasons which follow, I have determined that the first notice is to be set aside in part, whereas the second notice is to be complied with.  

Background
 
[6]	The substantive proceedings comprise two alleged contraventions of the Anti-Discrimination Act 2001 (Qld). The first is that, in suffering bullying at the hands of Mr Reesby, the respondent was unlawfully discriminated against on the basis of race and imputed sexuality. The second is that he was unlawfully victimised consequent upon alleging that a person committed an act that would amount to a contravention.

[7]	Through his company, Mic Industries Pty Ltd, the respondent provided motor vehicle refinishing services to LMM Holdings Pty Ltd ("Brisbane BMW") from on or around October 2015.

[8]	The respondent maintains that during the period January 2016 until April 2018, an employee of Brisbane BMW by the name of Mr Reesby repeatedly called him 'gay' in response to his taste in music and the clothing he chose to wear. 

[9]	He also alleges Mr Reesby referred to him, using a variety of names, as a homosexual and repeatedly made derogatory remarks about him to other staff and contractors working on the lot, which related to his race, such as 'wog' and 'lazy greek'.

[10]	The respondent contends he was also victimised after making a complaint in relation to Mr Reesby's conduct. 

[11]	In support and as part of his claim, the respondent proposes to rely on an actual person, Mr Byron Wyatt, as a comparator to demonstrate less favourable treatment. He maintains Mr Wyatt is a suitable comparator as he provided similar services and had the same need for interaction with Brisbane BMW, Mr Reesby and Mr Gibson.  

[12]	Both parties have thus far complied with attendance notices to produce that they have served on each other. For instance, as best I understand, the respondent has already sought, and received, log entries and security camera footage. For their part, the applicants have sought, and received, medical records from a number of medical practitioners upon whom the respondent attended. 

Non-Compliance with the Rules

[13]	The applicants seek that the notices be set aside in their entirety as they fail to comply with the Rules, specifically: 

58	Issue of attendance notices

	...

	(5)		An attendance notice, other than an attendance notice for a compulsory conference, may only be directed to a single person. 

(6)	The name or designation by office or position of the person to whom an attendance notice is directed must be stated in the notice before it is issued. 

[14]	The respondent directed the notices to "LLM Holdings Pty Ltd, Grant Reesby and Sam Gibson".

[15]	I accept that the notices are non-compliant, however the Rules also provide:

226	Effect of failure to comply with rules

(1)	A failure to comply with these rules is an irregularity and does not of itself render a proceeding, document, step taken or order made in a proceeding, a nullity. 

(2)	If there has been a failure to comply with these rules, the court, the commission, a magistrate or the registrar may—

	...
			
(c)	declare a document or step taken to be effectual

	....

[16]	The respondent is an unrepresented litigant with little to no prior experience in litigation or civil procedure. In addition, setting the notices aside would simply result in his filing the notices again, to which the respondent would doubtless object once more for the other reasons contained in its submissions. It is therefore convenient and expeditious that the notices be declared effectual, and the objections levelled by the applicants be resolved presently, notwithstanding the non-compliance of the notices.

Attendance Notices to Produce 

[17]	The Rules provide:

59	Requirements for attendance notice to produce

An attendance notice requiring a person to produce a stated document or thing must—

(a)	adequately describe the document or thing; and

(b)	contain a notice, in the approved form, telling the person that the person has the right to apply to the court or commission to have the attendance notice set aside on any sufficient grounds, including, for example—

(i)	the document or thing is not relevant to the proceedings; or

(ii) 	privilege; or

(iii)	oppressiveness, including oppressiveness because substantial expense may be incurred that may not be reimbursed; or

(iv)	noncompliance with these rules.

Relevant Principles

[18]	The Rules confer upon the Commission an unqualified discretion to set aside part or all of an attendance notice:

61	Setting aside attendance notice
	
The court, commission or registrar may, by order, set aside part or all of an attendance notice. 

[19]	Considering a similar provision in circumstances where an attendance notice was known as a 'summons', Mason J (as he then was) held:

When application is made for the issue of a summons the Commission has the discretion to grant or refuse it. Generally speaking, the Commission will exercise its discretion in favour of the applicant unless it appears that it would be vexatious or frivolous or otherwise an abuse of process to issue the summons.

[20]	In DP World Brisbane Pty Ltd v Rogers & Anor, Martin P adopted both the words of Mason J (above), as well as those of Munro J, who was dealing with the cognate provisions in Commonwealth legislation:

The power to compel production is discretionary and not mandatory in the sense of giving any person, intervener or party a legal right to require, as it sees fit, production of documents or attendance of witnesses. 
 
In its exercise of a broad discretion and judgment over use of the power, the Commission will have regard to practice followed in courts of law where a judicial discretion has been applied to regulate use of a subpoena to produce documents. Any such subpoena must specify with reasonable particularity documents which are required to be produced. It may be sufficiently specific to identify documents to be produced by reference to the subject matter to which they relate. In the case of a corporation, it is usually appropriate, where the custodianship of documents is not clear, to direct the subpoena to the ‘Proper Officer’. It is not legitimate to use a subpoena for what, in effect, would be discovery of documents against a person not liable to make discovery, or as a substitute for discovery which should be applied for at the proper time. The documents sought must be of a nature capable of being relevant to an issue which might legitimately arise on the hearing of the matters in dispute. In the first instance the documents are produced to the tribunal upon whom it falls to examine the documents, assess their relevance and determine what access by the parties to the documents may be appropriate… A party will not be required to produce documents where to do so would be oppressive; or where the demand for production is 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. 

[21]	In DP World, Martin P ordered the production of telephone records which were "at the heart of the debate" in circumstances where, at first instance, the Commission demurred for privacy reasons:

The mere claim that a document to be produced is confidential is not a valid objection to its production. Much of what is disclosed to another party in court or tribunal proceedings of one kind or another may well be confidential. It has been held that where this is the case, “the risk to the confidentiality of the information must be tolerated in the interest of the administration of justice”. Where specific issues of privacy or a heightened concern for commercial confidentiality, for example, arise, arrangements may be made to ensure that the disclosure of material and information that is made does not go beyond what is strictly necessary in the circumstances. What has been said with regard to confidential information might equally be said to apply in the case of personal information that might in other circumstances be protected by privacy legislation. Accordingly, the mere fact that information to be produced might include “private” information, however defined, is an insufficient ground in law to justify the setting aside of a Notice or to issue a Notice.

[22]	The attendance notice must only be used for a legitimate forensic purpose, and this will only be so when the documents or evidence sought to be produced are relevant. A document is relevant to the proceedings if it contains information which may – not which must – lead to a train of inquiry that either directly or indirectly enables the party requiring the document to advance his own case or damage the case of his adversary. 

The First Notice

[23]	The complainant sought the following material by way of the first notice:

(a)	Outgoing call records from the mobile phone of Sam Gibson from 3 April 2018 and 3 May 2019 inclusive;

(b)	Outgoing call records from the office of Sam Gibson from 3 April 2018 and 3 May 2018 inclusive;

(c)	Records of work provided by MIC Industries Pty Ltd to any department of Brisbane BMW before 30 December 2015;

(d)	All text messages sent and received on Grant Reesby's mobile phone between 30 December 2015 and 13 April 2018 to the following people:

•	Dimitri Michalakellis;
•	Libor Stejskal;
•	Byron Wyatt; and
•	Cameron Helbig. 

(e)	Any notes taken by Joshua McGee during, and regarding, the meeting held with the complainant on 3 April 2018 and the phone call with the complainant on 4 April 2018; and

(f)	Any documents received from Baypsych Consultants and Dianne Green as a result of the Form 29 Notice of Non-Party Disclosure issued on 25 February 2019.

[24]	Once the applicants' argument that the notices should be set aside in their entirety owing to non-compliance with the Rules is rejected, a more nuanced position emerges. For instance, the following submission is made in respect of a request for particular phone records and text messages (my emphasis):

Accordingly, the First Notice should be set aside insofar as it requires the production of [Mr Gibson's] mobile and office phone records after 13 April 2018 and copies of all text messages exchanged between [Mr Reesby's] and Mr Stejskal and Mr Helbig between 30 December 2015 and 13 April 2018.

[25]	The rationale underpinning the respondent's desire for the mobile and office telephone records of Mr Gibson can be explained as follows. A Notice to Admit Facts was served on the respondent, which called upon him to either 'admit' or 'deny' the following fact:

Within a week of the 3 April 2018 meeting, Mr Gibson asked you words to the effect "how is everything going", to which you responded "yeah fine". 

[26]	From this the respondent inferred that the applicants were to contend that Mr Gibson actually enquired as to his wellbeing – something he vehemently rejects. In his own Notice to Admit Facts, served on Mr Gibson, the respondent set forth the following proposition: 

You did not contact Mr Michalakellis anytime within one month of the meeting on 3 April 2018.

[27]	Mr Gibson answered 'deny'. The respondent seeks phone records which he expects will establish that no contact was in fact made by Mr Gibson to check on his wellbeing. 

[28]	The applicants object to the text messages sent and received on Mr Reesby's mobile phone to Libor Stejskal and Cameron Helbig in circumstances where neither have been nominated by the respondent as comparators. 

[29]	In respect of the notes taken by Mr McGee concerning the meeting on 3 April 2018 and subsequent phone call, the applicants argued:

As [Mr Reesby] did not participate in the meeting between Mr McGee and the [respondent] on 3 April 2018 or the telephone call between Mr McGee and the [respondent] on 4 April 2018, there is no reason why [Mr Reesby] would have access to any notes Mr McGee took of the meeting or telephone conversion with the [respondent]. 

The Second Notice

[30]	By way of the second notice, the complainant sought the purchase orders and subsequent invoices in respect of work requested and completed for bumper and/or wheel refinishing for 15 vehicles (the stock numbers of which were provided).

[31]	No submissions were made as to why, besides non-compliance with r 58 of the Rules, the second notice should be set aside. 

Consideration

[32]	The applicant has sought various medical records provided to the respondent from Baypsych consultants and Dianne Green in response to a notice of non-party disclosure issued in the substantive matter at the request of Brisbane BMW. In circumstances where the respondent is readily able to access his own medical records from Baypsych consultants and Dianne Green, I am minded to set aside this component of the first notice.

[33]	The notes taken by McGee should be provided to the respondent. They relevantly bear upon the applicants' handling of the bullying complaint against Mr Reesby and, in particular, whether a comment may have been made by Mr Gibson to the respondent that "you're Greek, you should be tougher". Unlawful discrimination based on race is a component of the respondent's complaint. 

[34]	It is incumbent upon the first applicant to produce the documentation held by Mr McGee, the HR Manager for Brisbane BMW. In fact, it has done so in past. Handwritten notes authored by Mr McGee concerning his telephone conversation with the respondent on 9 March 2018 were included as part of the applicants' response to the earlier general protections claim filed in the Fair Work Commission by the respondent. 

[35]	While I accept that the text messages between Mr Reesby and Messrs Stejskal and Helbig are irrelevant in that they are not nominated as comparators by the respondent, the same cannot be said of Mr Reesby's text messages to and from Mr Wyatt. They are relevant to the proceedings because the respondent's argument relies on his establishing less favourable treatment on account of his race and imputed sexuality as opposed to his comparator, Mr Wyatt.

[36]	To the extent that it was possible and as best I understand it, text messages have already been produced which were sent to and from Mr Reesby and the respondent during the period 27 January 2016 until 30 October 2017. 

[37]	The respondent now seeks additional text messages from Mr Reesby. I am prepared to order their production, but only insofar as they pertain to the period between the internal complaint against Mr Reesby on 9 March 2018 and the cessation of the respondent's employment. The internal complaint was said to be the event which precipitated the breakdown in the working relationship between the respondent and Mr Reesby, thus giving rise to allegations of unfavourable treatment (viz. Mr Reesby's answering "no" when the respondent asked for work; failing to provide paperwork, etc.).  

[38]	In respect of the outgoing call records from Mr Gibson's office and mobile phone, I am minded to set aside this component of the first notice for three reasons. 

[39]	First, while the records may demonstrate that Mr Gibson did not telephone the respondent, this fact, to my mind, does not strike me as sufficiently relevant to, or likely to materially assist the Commission in the determination of, the questions on which the substantive proceedings will chiefly turn, namely, was the respondent subjected to unlawful discrimination on the basis of his race and imputed sexuality, and/or was he was unlawfully victimised?

[40]	Second, production of the call records could appositely be characterised as a fishing expedition in the sense that it represents not a particularised request with a legitimate forensic purpose to obtain probative documents of material relevance to the proceedings, but rather an attempt by the respondent to obtain a vast number of call records so that he may establish whether there is a case at all to support his contention. The respondent will have ample opportunity to test the credibility of Mr Gibson during cross-examination.  

[41]	Third, to order production of the records from both Mr Gibson's office phone and his mobile phone would require, oppressively so in my view, the applicants to produce some 13 months of records in order to prove the narrow fact in issue between the parties of whether Mr Gibson checked on the respondent's wellbeing at some point after 3 April 2018. 

[42]	I turn now to the second notice. Neither the applicants nor the respondent set forth submissions as to why this material should, or should not be, produced. I am not inclined to speculate on their behalf. The Commission cannot simply decline to enforce an attendance notice. Once the notice has been served, the recipient is bound to comply with it unless it is set aside under the Rules. 

[43]	On that basis, the applicants are to produce the purchase orders and subsequent invoices. This material was sufficiently particularised, relevant in that (as best I understand) it may or may not prove in a comparative sense that the respondent was deprived of work and does not appear to be an exercise in 'fishing'. Further, the applicants have not made specific objections to producing this material on, say, the grounds of relevance or oppressiveness. 

Conclusion

[44]	The second notice is to be complied with within 14 days of the release of this decision. 

[45]	The first notice is set aside in part. The following material is to be provided by the applicants to the respondent within 14 days of the release of this decision:

(a)	copies of text messages sent from and received on Mr Reesby's mobile phone between 9 March 2018 and 13 April 2018 to and from Dimitri Michalakellis; 

(b)	copies of text messages sent from and received on Mr Reesby's mobile phone between 30 December 2015 and 13 April 2018 to and from Byron Wyatt; and

(c)	copies of any notes taken by Mr McGee during, and regarding, his meeting with the respondent on 3 April 2018 and subsequent phone call on 4 April 2018.

[46]	I order accordingly.