[2017] FWC 2537

The attached document replaces the document previously issued with the above code on 10 May 2017.

Corrected citation in endnote 10.

Matthew Jordon

Acting Associate to Commissioner Bissett

Dated 12 May 2017

[2017] FWC 2537


Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Dr Michael McShane



Application for an order to stop bullying – application for orders to produce document be set aside – document has no apparent relevance – order set aside.

[1] Dr Michael McShane is a lecturer in law at Deakin University (Deakin). He has made an application to the Commission seeking orders that bullying occurring at work stop. One of the employees of Deakin named in Dr McShane’s application is Professor Sandeep Gopalan.

[2] On 21 March 2017 Dr McShane made an application to the Commission for orders for the production of documents. In accordance with that application the Commission made two Orders in identical terms – one directed to Professor Gopalan at Deakin and one directed to Ms Sharon Champness of the University of Newcastle. Each of the Orders sought the production of the “Report by Pinnacle Workplace investigations into allegations of misconduct by Professor Sandeep Gopalan while dean of Newcastle Law School, and prepared in or about mid-2015” (the Report). Dr McShane sought the Report on the grounds that he believed it contained evidence of Professor Gopalan having been at least perceived by a number of staff at University of Newcastle (UON) to have engaged in the sort of conduct proscribed by s.789FC of the Fair Work Act 2009 (FW Act).

[3] Both Professor Gopalan and UON have objected to the production of the Report.

[4] Following a mention of the matter directions were issued for the filing of submissions by each of the parties including Deakin. Each of the parties indicated it was satisfied for the Commission to make a decision on the objections on the basis of the written submissions filed.

Submissions of Deakin and Professor Gopalan

[5] Deakin and Professor Gopalan (collectively referred to as Deakin) submit that the Report is not relevant to the issues in dispute between the parties. Deakin submits that the Report pertains to issues in a completely different workplace and has no nexus to Dr McShane or his work at Deakin. Deakin submits that Dr McShane misstates the meaning of bullying when he asserts that it includes “forms of management behaviour that “may have been exhibited elsewhere”  1 (sic).

[6] Deakin says that, on the basis of the submission of UON on what the Report does relate to (see below), it cannot be relevant to the current proceedings as it does not relate to the facts in dispute – that is if Dr McShane has been bullied at work (at Deakin) by the individuals (including Professor Gopalan) named in his application. On this basis it submits that the Report will not throw light on the issues in the proceedings and hence serves no legitimate forensic purpose.

[7] Deakin further submits that were the Commission to allow the Report to be used in proceedings it would be taking into account an irrelevant consideration and may be drawn into error.

[8] Deakin further submits that the Report should not be allowed for the purpose of demonstrating particular tendencies in Professor Gopalan’s management style. It says that tendency evidence is, at law, prima facie inadmissible as evidence because it has no probative value in determining the actual issues in dispute.

[9] Deakin submits that the Report contains sensitive information about a number of individuals. It says that it would be inappropriate to accept a redacted form of the Report as that could decontextualise the findings. To provide it in full to Dr McShane it says would be unfair to the named individuals.

[10] Deakin disagrees with Dr McShane that issues of confidentiality are outweighed or overborne by the public interest in producing the report. It submits that the authorities relied on by Dr McShane deal primarily with commercially sensitive information. In this instance it (and the UON) is primarily concerned with reputational harm that might come from the production of the Report. Secondly, it submits that is not possible in this case to limit inspection of the Report if it was produced. Thirdly it says that the protection of the integrity of the personal information in the Report outweighs any relevance claimed of the report and that this is a relevant consideration. 2

[11] For these reasons it says the report should not be required to be produced and the Orders vacated.

Submissions of University of Newcastle

[12] The University of Newcastle acknowledges the existence of the Report. The Report was completed in 2015. It submits that it was not, however, commissioned in respect of allegations of misconduct by Professor Gopalan as is described in the Order. It says that the scope of the Report was a workplace review of the UON Law School and the terms of reference for it included:

[13] The UON says that, in addition to confidential information regarding the Law School, the Report contains the identity of at least 6 individuals (in addition to Professor Gopalan) and may include personal information that falls within privacy considerations. Some of those individuals have not seen the Report or the Report in full nor had the opportunity to respond to it. It says that the release of the Report could cause irreparable damage to the individuals in question.

[14] It submits that the Report contains confidential information, findings and observations in relation to a number of individuals other than Professor Gopalan which, if released, could cause irreparable damage to reputation. It submits that the invasion of private rights by the release of the Report far outweigh any public interest in its production.

[15] Further, given that the report was completed in 2015, UON submits that it can have no relevance to the matter before the Commission and orders that might be made as it does not deal with matters relevant to the prevention of bullying at Deakin.

[16] UON further submits that the Report does not have any apparent relevance to the matter before the Commission. It is not relevant to whether Dr McShane has been bullied at work (Deakin) by an individual or group of individuals. Dr McShane has not been employed by UON, nor is he a worker in respect of UON as defined in the FW Act. Further it submits that the report is not relevant to determining if there is a risk that Dr McShane will continue to be bullied at work.

[17] UON submits that, even if Dr McShane’s submissions on relevance were accepted (but says they should not be), the Commission should still revoke the Order given the significant burden imposed on UON by production. In this respect it relies on the decision in Re Clerks (Alcoa of Australia – Mining and Refining) Consolidated Award 1985 3 (Clerks (Alcoa) Case) in which Munro J said:

[18] UON says that the burden presented in producing the report far outweighs any probative value it may present.

[19] UON submits that the Report does not have any “significant probative value” in the substantive proceedings (for the purposes of s.97 of the Evidence Act 1955 (Cth)) and is therefore inadmissible where “significant” has been said to mean “important” or “of consequence” 4 and “probative value” means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.5

[20] The Report does not relate to Dr McShane nor to Deakin University which, UON submits, are core elements under s.798FF of the FW Act. As the Report does not substantiate claims of bullying of Dr McShane by Professor Gopalan it is incapable of having “significant probative value” in the substantive matter.

[21] For these reasons UON seeks that the Order be revoked.

[22] In the alternative UON submits that, should the Order not be revoked, it should be varied such that UON is required to produce a redacted form of the Report such that it not reveal names and information not directly related to Professor Gopalan and information not related to allegations of bullying against Professor Gopalan and that the Report be subject to orders with respect to access, confidentiality and destruction.

Submissions of Dr McShane

[23] Dr McShane submits that the issue currently before the Commission is merely the first step governing the production, inspection and admission at hearing of the type of material contained in the Report. Dr McShane submits that at each of these steps “the stranger and the parties have different rights and the functions of the judge differ”. 6 He says that, to the extent that the parties have addressed matters that go to inspection and admission he has, out of an abundance of caution, responded to these matters.

[24] Dr McShane submits that, with respect to those objections of Deakin, Professor Gopalan and UON that relate to the first stage (that is production), each has ignored the relevant principles governing the exercise of the Commission’s discretion set out in Clerks (Alcoa) Case and adopted by his Honour Vice President Lawler in APESMA v Airly Coal Pty Ltd: 7

[25] Dr McShane submits that he has named the document acknowledged by UON to exist.

[26] Further, he says that the conduct of Professor Gopalan as a manager is “materially relevant to the substantive issues in dispute as this conduct is constitutive of the sort of behaviour the Commission’s anti-bullying jurisdiction was enacted to protect against.” 9 As such he submits that the material he seeks is not being sought to determine if he is able to articulate a legal dispute but is directed to further adjectival goals. He says therefore that the Report is relevant in the sense contemplated by s.55 of the Evidence Act.

[27] Dr McShane submits that the Report specifically addresses matters relating to the management of the Newcastle Law School at a point in time when Professor Gopalan was Dean of the School. It is therefore sought for a legitimate forensic purpose. He says that the application before the Commission is for anti-bullying orders, bullying relates to forms of management behaviour and that behaviour may have been exhibited elsewhere. That the Report did not find bullying had occurred is irrelevant since the test for production is whether the Report is capable of being relevant to an issue that might arise.

[28] Dr McShane submits that the question to be addressed is whether or not the Commission should order production of the Report. Whether inspection should be permitted and whether it should be tendered as evidence are not relevant to whether it should be produced.

[29] As to the matter of confidentially Dr McShane submits that the weight of authority 10 favours production of a document even if it is confidential subject to any limitations considered appropriate by the Commission.

[30] Dr McShane submits that tendency evidence is admissible provided reasonable notice of the evidence is given and the Commission considers it has significant probative value. 11

[31] Dr McShane submits that he has provided notice of his intention to raise tendency evidence as required by s.97(1)(a) of the Evidence Act.

[32] “Probative value” is defined in the Dictionary to the Evidence Act to mean:

[33] Dr McShane submits that Deakin’s objection is misconceived and confuses common law requirements governing tendency evidence with those set out in the Evidence Act. Further, he submits that Deakin misconceives the relevant test in arguing that the Report does not substantiate bullying allegations and hence is not capable of supporting Dr McShane’s position. He says that, in the first instance, all he need show is that the Report is relevant as specified in s.55 of the Evidence Actthat is that there is some rational connection between the evidence for which admission is sought and its capacity to prove or support reasoning leading to proof of one or more of the facts in dispute.

[34] Dr McShane rejects any suggestion in the submissions of Deakin that he is attempting to undermine the anti-bullying provisions of the FW Act.

[35] Dr McShane submits that the Report should be produced, it should be subject to inspection and it should be admitted into evidence.

Consideration on production of the Report

Relevant principles

[36] The Fair Work Commission (Commission) has a broad discretion in how it may inform itself. Section 590 of the FW Act states:

590 Powers of the FWC to inform itself

[37] The power to require production of documents is a broad discretionary power to be exercised in accordance with the principles applied by the Courts. 12

[38] There are three distinct stages in relation to production and admission to evidence of documents pursuant to a summons or Subpoena. These were identified by Moffatt P in National Employers’ Mutual General Insurance Association Ltd v Waind and Hill 13 where he said

[39] In The Queen v Marks; Ex parte Australian Building Construction Employees and Builders Labourers’ Federation 15 Justice Mason discussed the use of the discretion to issue a summons and said:

[40] The principles applied by the Courts in the exercise of the power to issue a summons (or the issue of orders to produce made under the FW Act) were identified in Clerks (Alcoa) Case where Munro J said:

[41] In this respect Dr McShane is correct that the three relevant matters in relation to the determination of the objections before me are:

[42] In Airly Coal Lawler VP added a fourth matter to those three listed above where he said that “confidentiality can be relevant to whether production ought to be required” 16 although it may be that this is an issue that falls with the question of the oppressive nature of the document sought.

[43] In Patrick Stevedores No 1 Limited 17 his Honour Vice President Ross, in considering the issue of subpoenas said:

[44] I have taken all of these matters into account in coming to my decision.

Were the documents specified with reasonable particularity?

[45] I am satisfied that the document sought (the Report) was specified with reasonable particularity. UON acknowledge the existence of the Report. This is not a ground (and is not pressed) as a basis to not require production.


[46] In determining relevance the nature of the substantive application made by Dr McShane requires some examination.

[47] Dr McShane has made an application pursuant to s.789FF of the FW Act for orders that bullying cease. Dr McShane claims that he has been bullied at work by Professor Gopalan and two others.

[48] Section 789FD of the FW Act relevantly states:

789FD When is a worker bullied at work?

[49] The matters that fall to determination by the Commission (accepting that there is no dispute that Dr McShane is a worker and Deakin is a constitutionally-covered business) are whether any of the three named individuals have repeatedly engaged in unreasonable behaviour directed at Dr McShane at work which creates a risk to health and safety. Prior to making any order the Commission must also be satisfied that there is a risk that Dr McShane will continue to be bullied at work. 18

[50] In Re Ms SB 19 Hampton C said:

[51] In Bowker v DP World Melbourne Limited 20 a Full Bench of the Commission determined:

[52] These decisions are relevant in that they make clear the scope of the matter for determination required in the substantive matter.

[53] The immediate question before me is if the Report has any apparent relevance in determining if Professor Gopalan’s behaviour towards Dr McShane at work is unreasonable and repeated and creates a risk to health and safety.

[54] The Report relates to an investigation of matters at the University of Newcastle. Dr McShane does not say that he was subject to bullying behaviour because of any behaviour that occurred at UON or behaviour engaged in by Professor Gopalan whilst he was at UON.

[55] The findings the Commission must make in relation to the substantive application relate to behaviour that has occurred while Professor Gopalan has been employed by Deakin. Understood in this light, the substantive task weighs against a finding that the Report is relevant to the matters to be ultimately determined by the Commission.

[56] Dr McShane has, in his substantive application to the Commission, asserted that Professor Gopalan engaged in certain behaviour that constitutes bullying. Whether he has, as a matter of fact, engaged in that behaviour is a matter that falls for determination of the Commission. The Report does not need to have direct relevance to that finding that must be made, but must have apparent relevance.

[57] Insofar as the Report goes to the behaviour of Professor Gopalan in a different workplace it would appear to have little apparent relevance to the substantive matter. Professor Gopalan’s behaviour at UON, in circumstances where Dr McShane was not employed by UON, cannot have relevance to the determination of Professor Gopalan’s behaviour with respect to Dr McShane at Deakin. In this respect Dr McShane’s comment that “[t]he application is for an anti-bullying order and bullying relates to particular forms of management behaviour that may have been exhibited elsewhere” 22 is misplaced. I am not satisfied that the Report will “support reasoning leading to proof” of facts in dispute.

[58] The Report does not deal with Professor Gopalan’s behaviour during the period of his employment with Deakin or that period during which Dr McShane says he was bullied at work by Professor Gopalan (and others).

[59] For these reasons I am not convinced that a report with respect to behaviours at a different workplace (and employer) in a different context has any apparent relevance to the substantive matter before me.


[60] A further ground on which production of the Report might not be required is if the grant of the order would be oppressive. This captures matters of confidentiality and harm to reputation as identified in Airly Coal.

[61] The Report deals with a range of matters in relation to the Law School at UON. The terms of reference for the Report (or some of them) are outlined above. It goes beyond the behaviour of Professor Gopalan. I accept that there are aspects of the report that have not been seen, or seen in full, by those named in the Report and that some of those named may not have had the opportunity to provide any response to the report.

[62] UON says that the potential irreparable damage caused by the production of the Report far outweighs any probative value it may have.

[63] In Gordon Cooper and Rosemary Cooper 23 Commissioner Simpson considered in detail the relevant authorities in relation to production of confidential documents. Whilst the document under consideration in that matter related to an investigation into the actual behaviour subject to the applications this does not diminish the legal basis on which the Commissioner made his decision.

[64] I am sympathetic to submissions of UON and Deakin on this point. Clearly the Report had a wider remit than a consideration of the behaviours of Professor Gopalan. I am also sympathetic to the submissions of Deakin that a redacted version of the Report would remove critical contextual information and it should not be produced on a redacted basis if production was required. This alone however would not provide a basis to grant the applications to revoke to Orders.

Conclusion on production

[65] I have carefully considered all of the material before me. I have been mindful of the words of Justice Mason set out above that the Commission would, generally exercise its discretion in favour of an applicant.

[66] However, for all of the reasons given above but particularly the lack of connection between Dr McShane and the behaviour of Professor Gopalan at the University of Newcastle, I am not satisfied that the Report should be produced to the Commission in that it does not meet the test of apparent relevance.

[67] I should add that, even if I did require production and allowed inspection of the Report and based on the submissions of the parties, my preliminary view is that the Report would not be of “significant probative value” such that it should be admitted into evidence in the substantive proceedings.

Other matters

[68] In his written submissions Dr McShane sought to rely on comments made by the legal representative of Deakin during a private conference of the parties. Deakin objected to the inclusion of this in written materials and asked Dr McShane to withdraw the statement. Whilst initially agreeing, Dr McShane then said that he wished to press for inclusion of the statement in his submission.

[69] I have not had regard to Dr McShane’s submission with respect to statement made during a conference of the parties.

[70] The conference was conducted in private and the parties were advised of this at the commencement of the conference. Whilst Dr McShane accepts that privacy applies to discussions around settlement I do not accept that it is a reasonable that a party decide, after the event, to publicly state what might have been said – whether a direct part of a settlement offer or not – by the other party. It is not Dr McShane’s right to publicly disclose what Deakin might have said in conference.

[71] Confidence in the privacy of conferences before the Commission is important to the capacity for the Commission to explore issues with the parties to a matter arising under the Act. For this reason I have not taken account of the matters raised by Dr McShane which were discussed during the conference.


[72] The application by Deakin and University of Newcastle to set aside the Orders requiring production of the Report are granted.

[73] The Orders are hereby set aside.


 1   Deakin reply submission, 28 April 2017, paragraph 2.

 2   Apache NorthWest Pty Ltd v Western Power Corporation (1998) 19 WAR 350 at 381.

 3   Print H2892.

 4   See Regina v Lockyer (1996) 89 A Crim R 457).

 5   Dictionary to the Evidence Act 1955 (Cth).

 6   National Employers’ Mutual General Insurance Association Ltd v Waind and Hill (1978) 1 NSWLR 372, cited in APESMA v Airly Coal Pty Ltd PR962479 at [13].

 7   PR962479 at [12].

 8   Submissions of Dr McShane, 27 April 2017, paragraph 6.

 9   Ibid, paragraph 7.

 10   Clermont Coal v Brown [2015] FWCFB 2460; Airly Coal; Mobil Oil v Guina Developments [VSCA 1996] cited in Application by Cooper [2016] FWC 7627; Amie Mac v Bank of Queensland [2015] FWC 774.

 11   Evidence Act 1995 (Cth) s.97.

 12   Clerks (Alcoa) Case.

 13   (1978) 1 NSWLR 372.

 14   Ibid, p381.

 15   (1984) 159 CLR 163 at [12].

 16   PR962479 at [14].

 17   Print P8680.

 18   FW Act s.789FF(1)(b)(ii).

 19   [2014] FWC 2104.

 20   [2014] FWCFB 9227.

 21   Ibid.

 22   Dr McShane outline of submission, 20 April 2017, paragraph 10.

 23   [2016] FWC 7627.

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