WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2015 WAIRC 00877 CORAM :Chief Commissioner A R Beech HEARD : Thursday, 3 September 2015 DELIVERED : THURSDAY, 17 September 2015 FILE NO. : B 29 OF 2015 BETWEEN : Dr Mark Granitto Applicant AND RSC Dental Pty Ltd t/as Keys Dental Centre Respondent Catchwords : Practice and procedure – Discovery, inspection and production of documents – Relevant principles – Orders made Legislation : Industrial Relations Act 1979 (WA) s 27(1)(o) Result : Application for production of documents granted in part Representation: Counsel: Applicant : Mr S Millman and Mr D Stojanoski Respondent : Mr B Jackson Solicitors: Applicant : Slater and Gordon Lawyers Respondent : DLA Piper Case(s) referred to in reasons: ALHMWU v Burswood Resort (Management) Ltd (1995) 75 WAIG 1801 === REASONS FOR DECISION === ¶1 This claim for compensation by way of damages for non-payment of a benefit to which the applicant says he is entitled under his contract of employment is opposed in its entirety on a number of bases. It is listed for hearing before Scott ASC commencing on 23 November 2015. ¶2 The applicant seeks an order for the production of certain documents set out in numbered paragraphs in a letter dated 15 July 2015 from the applicant’s solicitors to the respondent’s solicitors. The reply from the respondent’s solicitors of 5 August 2015 is such that the documents in paragraphs 7, 8 and 9 are not in dispute. There remains disagreement regarding the remaining documents sought. The parties’ submissions refer to their letters. The letters were not formally tendered, but handed to the Commission for ease of reference. It is convenient to refer to the letter from the applicant’s solicitors as A1, and that from the respondent’s solicitors as R1. [Applicable Principles] ¶3 The discovery, production and inspection of documents is not available as of right. The Commission has the power under s 27(1)(o) of the Industrial Relations Act 1979 (the Act) to make such orders as may be just regarding the discovery, inspection or production of documents. Discovery is limited to those documents that relate to what is issue in the proceedings, which is defined by the notice of application and the notice of answer filed in the matter (ALHMWU v Burswood Resort (Management) Ltd (1995) 75 WAIG 1801 at 1805). ¶4 In general terms, the applicant contends that the documents sought arise from matters put into contest by the respondent in its notice of answer. In turn, the respondent says that the reasons why it dismissed the applicant, and the issues it relies on, are quite narrow and the requests for documents are broader than are necessary. With that general background I turn to consider the documents sought. It is convenient to refer to the paragraph numbers used in the letters. [Paragraph 3] ¶5 The first part seeks the names of ‘the dentists and all other staff that were employed/contracted and subsequently left the respondent or its related entity between 1 January 2010 to the present.’ This is not a request for a document and for that reason I do not propose to consider it further. ¶6 It also requests under “a” the ‘termination or resignation letters in relation to these former employees’. The applicant refers to paragraph 29a of the notice of answer which states that “during the employment the applicant engaged in the following conduct” and there then follow under the heading of “dealings with staff” a list of incidents numbered i to ix. The concluding sentence of vii says: “In addition this conduct caused existing staff to leave the practice”. The applicant submits that if this is correct then it will be reflected in their letters of termination or resignation. ¶7 The respondent emphasises that the applicant commenced employment on 16 December 2013 and was dismissed from his employment on 13 January 2015 after little more than one year’s service. The reasons for his termination are quite narrow yet documents are sought as far back as 1 January 2010; this is an example of fishing. The concluding sentence of paragraph 29a vii refers to allegations involving specific people who are named, and resignation letters have no relevance to this. The resignations could only relate to the persons named. ¶8 I find from paragraph 29a vii that the respondent intends to show that the applicant’s conduct caused existing staff to leave the practice. This will be a matter of evidence but the point is that it is to be an issue in the proceedings. Whether or not a letter of resignation from one or more of those members of staff gives the applicant’s conduct as a reason for the resignation may bear upon the weight of any evidence. I order that the respondent produce for inspection any letter of resignation received by it during the applicant’s employment from the persons it mentions in paragraph 29a. I will allow a liberty to the respondent to apply to vary the order and this will enable the respondent to apply to vary the order in the event that a letter to be produced contains information personal to the person resigning which, for reasons of the privacy of that person, ought to be obscured. ¶9 Although the claim is also for letters of termination, which I take to be from the respondent to an employee terminating their employment, I am not persuaded that a letter of termination has the same relevance to the issue and decline to order their production. Paragraphs 1, 2, 4, 5 and 6 ¶10 The applicant states that paragraphs 1, 2, 4 and 5 relate to the respondent’s financial performance. Paragraphs 4, 5 and 6 relate to paragraph 29e of the notice of answer. The applicant states that it ought be expected that if the respondent makes the assertions that it does against the applicant, the respondent provide the relevant documents upon which those assertions are founded. The way 29e is pleaded means that the applicant needs to request the documents in the manner which he has. ¶11 The respondent is critical of the way paragraph 1 is worded, pointing to the date range between 1 January 2012 to “the current day” as being so broad as to be almost incomprehensible. The respondent also does not know what “the working account” refers to, or why it is relevant. The only matter put in issue by the respondent is to do with the sale of the business, not the respondent's financial performance. ¶12 In relation to paragraph 2, the respondent does not refer to ‘creditors’ or the ‘creditors’ listings’ as an issue, and the request is for a period before the applicant was employed. In relation to paragraph 4, the respondent submits that it does not even know what documents are referred to or whether any are within its possession, custody or power. As to paragraph 5 the respondent sees this as a broad brush request for financial documents and paragraphs 4, 5 and 6 should not be upheld. ¶13 I find as follows. Paragraph 29e puts in issue whether the applicant, without notifying anyone, took steps to adjust an annual amount drawn by Scott and Corina Dorey. This does not put in issue the ‘respondent’s financial performance’ as the applicant submits. I cannot see that ‘statements of the working account of the respondent’ relate to paragraph 29e. Paragraph 1 is refused. ¶14 I find similarly in relation paragraphs 2, 4, 5 and 6. In relation to paragraph 4, I add that any withdrawals which may have been made by Scott and Corina Dorey are not placed in issue by 29e. What is placed in issue is what steps the applicant may have taken, and whether he did so without notifying anyone, not what Scott and Corina Dorey may have done by way of withdrawals or, in the case of paragraph 6, Ms Dorey by way of her credit card. Paragraphs 2, 4, 5 and 6 are refused. Paragraphs 10, 11 and 12 ¶15 The applicant asks for paragraphs 10, 11 and 12 to be dealt with together and he relies on paragraphs 29f, g and h to support the request in these paragraphs. The applicant states that 29f, g and h accuse him of acting in a way that jeopardised the sale of the business. He submits that these documents will assist him to answer the accusation. The applicant also says that the respondent states that the applicant interfered in the financial performance of the business; paragraph 10 relates to the financial performance of the respondent. ¶16 The respondent states that the extent of paragraph 29f is that during the negotiations for the possible sale of the business the applicant made statements to the potential buyer without authorisation. That is the extent of the notice of answer. The respondent has accordingly agreed with paragraph 9 but the balance sought the applicant is irrelevant and embarrassing. The person mentioned in paragraph 10 is not mentioned in the notice of answer; neither is the sum of money mentioned. ¶17 In relation to paragraph 12, the respondent accepts that any communications between the applicant and Dr Khoury and Shaun Preston are relevant; it regards the general category of documents sought as irrelevant. ¶18 I find as follows. Paragraph 29f puts in issue whether the applicant, without authorisation, made statements to the potential buyer of the business. Paragraph 29g states this led to a situation where the potential sale was put into jeopardy. Paragraph 29h states this conduct has been destructive of the working relationship between the applicant and the respondent. ¶19 There is nothing in those paragraphs which places in issue the whether the sum of money mentioned paragraph 10 was returned to the person mentioned. The significance of whether it was returned is said to go to the financial performance of the business, however I am far from convinced that paragraphs 29f, g or h put into issue the respondent’s financial performance. Paragraph 10 is refused. ¶20 Paragraph 11 seeks merely names and not a document and is for that reason refused. ¶21 In relation to paragraph 12, it seeks any documents including notes and correspondence relating to the negotiations of the sale of the respondent to Dental Corporation Pty Ltd or to Mr Trinder and/or Mrs Trinder and/or any other entity. I accept the respondent’s submission that this seeks a broad category of documents. ¶22 What the respondent places in issue is not the sale of the business as such but only whether the applicant’s alleged conduct led to a situation where the potential sale was put into jeopardy. That will be a matter of evidence. The weight of such evidence may be tested by whether there is correspondence showing whether a potential sale was, or was not, in jeopardy and if it was, whether the applicant’s conduct was responsible for that position. ¶23 However, I am not persuaded on the submissions made that the Commission should order the production to the applicant of all correspondence ‘relating to the negotiations of the sale of the respondent to Dental Corporation Pty Ltd or to Mr Trinder and/or Mrs Trinder and/or any other entity’ just because there may be such correspondence within it. Its breadth compared with the narrow basis of the respondent’s paragraphs 29g means that I am not persuaded it is necessary for fairly disposing of the case. Paragraph 12 is refused. ¶24 This does not relieve the respondent in my view from the general obligation on a party to provide discovery of any document in its possession, custody or power that relates to a matter in issue, in this case any document showing that statements made by the applicant to the potential buyer of the business led to a situation where the potential sale was put into jeopardy, however, neither party has requested an order for general discovery and I take the matter no further here. In this context, I note the respondent’s concession in R1 in relation to paragraph 12. In my view, the concession means that it is not necessary for it to be included in the order to issue, however the submissions are not, to my recollection, clear upon this point. It may be revisited at a speaking to the minutes. Paragraph 13 ¶25 The applicant submits that paragraph 13 relates to 29e – h or 29j in the notice of answer. He states that the correspondence sought goes to reasons why the respondent’s business was performing poorly that cannot be laid at the door of the applicant. In particular, it seeks the letter of termination of the named ex-employee because of his belief that it will contain information saying that the actions of that person have left the respondent in a difficult financial state. ¶26 The respondent’s submission is that the person mentioned in 13 is not mentioned in the response and it relates to matters arising prior to the applicant being employed. It is merely fishing. ¶27 I find as follows. The reason put forward by the applicant, namely, that the respondent’s business was performing poorly for reasons which cannot be laid at his door, is not put in issue by the notice of answer. The respondent does not say in paragraphs 29e – h or 29j, or elsewhere, that the respondent’s business was performing poorly for reasons which can be laid at the applicant’s door. Paragraph 13 is refused. ¶28 A minute of proposed order issues reflecting the decisions in this matter.