Costello v Queensland[2017] QIRC 27

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Reasons for Decision

1. [1]
   By way of Application lodged on 3 March 2017 Mr Jay Costello seeks Discovery from the Respondent of documents which it has in its possession, power or control relating to its complaint to, and subsequent dealings with, the Office of the Health Ombudsman (the OHO) in connection with an incident on 2 June 2016 which involved the Applicant.

2. [2]
   On behalf of Mr Costello it is argued that the documents sought are discoverable on the basis they are relevant to matters at issue in the substantive proceedings before the Commission, including:

• whether Mr Costello's dismissal for the incident was harsh, unjust or unreasonable; and

• whether reinstatement is practicable.

3. [3]
   In pressing his client's Application Mr Shorten, of Counsel, said the Respondent had not only refused to disclose and discover the documents requested it was also in breach of the Commission's Directions Order of 9 January 2017 which, relevantly, required it to supply and provide to the Applicant "documents in its possession or under its control relevant to a matter in issue in the proceedings… for which the Respondent has no legal claim to privilege." [emphasis is Mr Shortens].  Such disclosure obligation, he said, is clarified and reinforced in rule 46(1) of the Industrial Relations (Tribunals) Rules 2011 (Qld).

4. [4]
   Mr Shorten said that the OHO is established under the Health Ombudsman Act 2013 (the HO Act).  The stated objects of the HO Act include to protect the health and safety of the public and to promote professional, safe and competent practice by health practitioners (s 3) such as Mr Costello, a former Advanced Care Paramedic.  The OHO must act independently, impartially and in the public interest (s 27).

5. [5]
   The OHO is empowered to decide whether to accept a complaint or take no further action.  Section 44 of the HO Act sets out the specific grounds on which the OHO may decide to take no further action, including inter alia where:

• the complaint is frivolous, vexatious, trivial or not made in good faith;

• the complaint is misconceived or lacking in substance;

• the complainant has failed, without reasonable excuse, to satisfactorily cooperate with attempts made or arranged by the OHO to resolve the complaint; or

• the complainant has failed, without reasonable excuse, to comply with a request from the OHO for information the OHO needs to properly deal with the complaint. 

6. [6]
   According to Mr Shorten, "The OHO apparently decided, at some point and for some reason, to take no further action on the Respondent's complaint concerning the incident of 2 June 2016 for which the Applicant was dismissed.  Absent discovery of the relevant documents, the reason for this is unknowable to the Applicant or this Honourable Commission.". 

7. [7]
   In support of his arguments, Mr Shorten referred me to the well known, and often quoted, decision of Brett J in Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co^[1] as follows:

"It seems to me that every document relates to the matters in question in the action, which not only would be evidenced upon any issue, but also which, it is reasonable to suppose, contains information which may—not which must—either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary.  I have put in the words 'either directly or indirectly' because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences.".  [emphasis is Mr Shortens]

8. [8]
   In Mr Shorten's submissions:

• it is enough that the relevant documents may fairly lead to a train of inquiry that may, even indirectly, enable the Applicant to advance his case, or damage the case of the Respondent;

• plainly, this sets a low bar;

• generally speaking, a document will be discoverable if it "throws some light over the controversy that exists between the parties"^[2];

• as to the "matters in question" or "matters in issue" (the terms are relevantly interchangeable),^[3] in the present case they plainly include questions that this Commission is required to determine in the proceedings, including:

• whether the dismissal was harsh, unjust or unreasonable; and

• if so, whether reinstatement would be impracticable. 

9. [9]
   Referring to the decision of Bechly C. in Henderson Greetings Pty. Ltd. v Bernadette Andrews^[4] Mr Shorten said the Commission in that matter had made the point simply and clearly:

"[t]o be discoverable a document must relate to the question or isses to be decided by the proceedings."

10. [10]
    In this respect, Mr Shorten submitted that the central questions to be decided by the Commission in the present proceedings were the fairness or Mr Costello's dismissal and the practicability of his reinstatement.  "If discovered, documents concerning the Respondent's OHO complaint (and the OHO's response) may throw light over those central questions, and enable the Applicant to advance his case (or damage the Respondent's case), by potentially clarifying:

1. when the Respondent made the complaint to the OHO, and whether the timing of the complaint showed it to have pre-judged the outcome of the investigation (with implications for the procedural fairness afforded to the Applicant);

2. the content of the Respondent's OHO complaint, and whether it showed the Respondent to have pre-judged the outcome of the investigation (with implications for the procedural fairness afforded to the Applicant);

3. whether the OHO decided to take no further action on the complaint because it considered it to be frivolous, vexatious, trivial, not made in good faith, misconceived or lacking in substance (with implications for the fairness of his dismissal on the basis of the incident);

4. whether the Respondent failed to cooperate with attempts made or arranged by the OHO to resolve the complaint (with implications for the fairness of his dismissal on the basis of the incident);

5. whether the Respondent failed to comply with a request from the OHO for information the OHO needed to properly deal with the complaint (with implications for the fairness of his dismissal on the basis of the incident);

6. why the OHO did not issue an interim prohibition order, and whether it might yet do so (with implications for the fairness of the dismissal, and the practicability of the Applicant's potential reinstatement); and

7. why the OHO decided not to investigate the complaint, and whether it might yet do so (with implications for the fairness of the dismissal, and the practicability of the Applicant's potential reinstatement).".

11. [11]
    Finally, Mr Shorten said that absent discovery of the relevant documents, the Commission may be led into making findings about the incident and/or the Applicant's practising future which are at odds with the views of the independent statutory body empowered to deal with the complaint about the incident, and to restrict the Applicant's practising future.  Contrastingly, if the relevant documents are discovered, the Commission and both parties will be fully informed regarding the Respondent's complaint about the incident of 2 June 2016 "for which the Applicant was dismissed", and the OHO's response. 

12. [12]
    Mr Costello's Application was firmly opposed the Respondent, which submitted that it had complied with the Commission's Directions Order of 9 January 2017 requiring it to disclose documents in its possession or under its control "that are relevant to a matter in issue in the proceedings". 

13. [13]
    Mr Merrell, of Counsel, who represented the Respondent, said that the principles concerning the exercise of the Commission's discretion to make an order about discovery were recently summarised by Fisher C in Weston and Parer v State of Queensland (Department of Justice and Attorney-General) (No. 4)^[5], as follows (footnotes omitted):

"[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 question 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 enquiry 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.".

14. [14]
    In relation to the suggested relevance of the Respondent's communications with the OHO in the present proceedings, Mr Merrell said that Mr Costello's unfair dismissal Application, and the material subsequently filed in support of such Application, made no reference to any assessment, investigation or response by the OHO about the incident of 2 June 2016.  Further, nothing filed by the Respondent in respect of the Applicant's unfair dismissal Application made any reference to the assessment, investigation or response by the OHO as being material to the decision to dismiss Mr Costello or why his reinstatement would be impracticable. 

15. [15]
    "The request for disclosure is in the nature of a fishing expedition, in the sense that it is an endeavour not to obtain evidence to support the Applicant's case but to discover whether there is an alternative case at all... So much is evident from the Applicant's discovery Application where Ms Napper (Mr Costello's Solicitor) deposes that she believes the Office of the Health Ombudsman's assessment and investigation of the incident and its response to the incident and its communications with the Respondent regarding those matters are relevant to matters in issue in the Applicant's Application.".

16. [16]
    In support of his submission that the Application for discovery was a fishing expedition, Mr Merrell said that Mr Costello's Application, in a nutshell, was to the effect that the Respondent's decision to terminate his employment was wrong for both substantive and procedural fairness reasons.  The Applicant was not seeking documents to support the case he had made at first instance.  Rather, he was seeking material which might allow him to make a new case to support an argument along the lines that, in some way, the Respondent's decision was affected directly or indirectly by something that may have been, or may not have been, done by a separate statutory body.

17. [17]
    In terms of the submissions of Mr Shorten (at paragraph [10] above), Mr Merrell said that if it was to be argued that the Respondent had pre-judged matters or was wrong "because of some influence or lack of influence or because of some decisions taken or not taken by a separate statutory body" then "any inference to be drawn or any conclusion to be drawn" about such issues "can only be drawn (from) the documents that were considered by Mr Emery (the Respondent's decision-maker)".

Consideration and conclusion

18. [18]
    After considering the submissions and cases to which I have been referred, I have decided not to grant Mr Costello's Application for discovery. 

19. [19]
    In arriving at that decision I have taken into account the following facts and factors:

• it is not in dispute that the Respondent notified the OHO of an incident on 2 June 2016 which involved Mr Costello;

• the OHO is established under the HO Act and performs its functions in accordance with the provisions of that Statute – including receiving, considering and deciding how to act in relation to complaints lodged with it;

• the Commission is a separate statutory body and performs its functions in accordance with the provisions of its own governing Statute which, in the present case, will require it to consider Mr Costello's Application for reinstatement in accordance with the provisions of Chapter 3, Part 2 of the Industrial Relations Act 1999;

• in accordance with this Chapter and Part, the Commission will be required to consider a number of matters which are set out in s 77 – Matters to be considered in deciding an Application;

• the nature of the incident on 2 June 2016 was not the only reason for Mr Costello's dismissal – other factors were involved as well;

• in his Application for reinstatement Mr Costello argues that his termination was harsh, unjust or unreasonable on the following grounds:

• the Respondent's investigation was procedurally unfair for sixteen (16) separate reasons;

• the Respondent relied on deficiencies in the Applicant's paperwork in making its decision to dismiss him, despite not raising any formal concerns previously or providing him with further and additional training to improve his paperwork;

• the Respondent failed to consider factors such as: his lengthy and unblemished record; his active role in mentoring students; the absence of any previous disciplinary issues; the absence of any clinical investigations in relation to the way he performed his duties; and, the absence of any complaints from members of the public about how he performed his duties;

• he had repeatedly informed the Respondent that he was suffering from anxiety and stress in relation to his daughter's medical condition and, on each occasion, the Respondent failed to exercise its duty of care to address his circumstances;

• instead of dismissal, the Respondent could have considered additional training and/or supervised practice; and

• in circumstances where the Respondent had been persuaded by the circumstantial evidence that the Applicant had self-administered methoxyflurane, it should have adopted a rehabilitative approach – particularly given its size, resources, knowledge, facilities and experience in dealing with mental and drug related illnesses. 

• the material filed by the Applicant in support of his argument that his dismissal was harsh, unjust or unreasonable does not, in Mr Merrell's submissions (which I accept), touch on the fact that the Respondent might have communicated with the OHO about the incident on 2 June 2016 and simply seeks to advance the arguments raised in his actual Application for reinstatement;

• the Applicant's legal representative will have the opportunity to question
  Mr Emery, and other witnesses called by the Respondent, about whether there might have been some pre-judgement of Mr Costello's fate prior to his termination on 31 October 2016;

• unless the OHO makes a decision at some point in time that it has placed some restriction on Mr Costello in terms of his capacity to practice as a Paramedic (which the parties agree has not happened at the present time) nothing which the OHO might have considered or done has the capacity to influence any decision by the Commission about the practicability, or impracticability, of Mr Costello's reinstatement if he is successful in establishing that his dismissal was harsh, unjust or unreasonable;

• the matter to be determined by the Commission has already been "scoped" by the respective parties in the form of Mr Costello's Application for Reinstatement, material filed by him in support of his Application, the Respondent's "Response to the Application for Reinstatement" and its witness statements, with the content of the communications between the Respondent and OHO not being a "matter in issue"^[6] between the parties which the Commission will be called upon to decide; and

• in light of the stage the proceedings have reached, the Application for Discovery has the "feel" of a fishing expedition and, in such circumstances, it would be inappropriate for the Commission to grant the Application sought.

20. [20]
    Given the above, I refuse Mr Costello's Application for Discovery as lodged on 3 March 2017.  In doing so, I reject the Respondent's Application for Costs on the basis that the Applicant's pursuit of his Application for Discovery, although unsuccessful, was not "an unreasonable act or omission connected with the conduct of the proceedings".

21. [21]
    I order accordingly.