ABDIRAHMAN v Assetlink Link Services (17) Pty Limited
[2021] FCCA 90
•27 January 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ABDIRAHMAN & ORS v ASSETLINK LINK SERVICES (17) PTY LIMITED | [2021] FCCA 90 |
| Catchwords: INDUSTRIAL LAW – Application for preliminary discovery – respondent submitting this court has no power to order preliminary discovery and, in the alternative, that the grounds for preliminary discovery have not been made out. |
| Legislation: Federal Circuit Court of Australia Act 1999, ss.43, 45, 81 Federal Circuit Court Rules 2001, r.1.05, item 3B in Pt.2 of Sch.3 Federal Court Rules 2011, r.7.23 |
| Cases cited: BCI Media Group Pty Ltd v Corelogic Australia Pty Ltd [2020] FCA 1556 Mondal v Transclean Facilities Pty Ltd [2020] FCCA 1334 Shorey v One Key Workforce Pty Ltd (in liq) [2020] FCA 1750 |
| First Applicant: | MOHAMED ABDIRAHMAN |
| Second Applicant: | ALI AL SHAHER |
| Third Applicant: | MOHAMED ALI |
| Fourth Applicant: | IMRAN ASHKAR |
| Fifth Applicant: | SADIK DEMIRAL |
| Sixth Applicant: | PHOOLA SINGH DHILLON |
| Seventh Applicant: | AHMED OSMAN |
| Eighth Applicant: | HASAN REKABI |
| Ninth Applicant: | MOHAMED SHARIF |
| Tenth Applicant: | EMMANUEL ZERVAS |
| Respondent | ASSETLINK LINK SERVICES (17) PTY LIMITED (ACN 126 171 079) |
| File Number: | MLG 3521 of 2020 |
| Judgment of: | Judge Riley |
| Hearing date: | 16 December 2020 |
| Date of last submission: | 16 December 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 27 January 2021 |
REPRESENTATION
| Solicitor advocate for the applicants | Yusuf Mohamud |
| Solicitors for the applicants: | Starnet Legal |
| Counsel for the respondent: | Andrew Denton |
| Solicitors for the respondent: | Mark Diamond |
DECLARATION
Item 3B in Part 2 of Schedule 3 to the Federal Circuit Court Rules 2001 is valid.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 3521 of 2020
| MOHAMED ABDIRAHMAN |
First applicant
And
| ALI AL SHAHER |
Second applicant
And
| MOHAMED ALI |
Third applicant
And
| IMRAN ASHKAR |
Fourth applicant
And
| SADIK DEMIRAL |
Fifth applicant
And
| PHOOLA SINGH DHILLON |
Sixth applicant
And
| AHMED OSMAN |
Seventh applicant
And
| HASAN REKABI |
Eighth applicant
And
| MOHAMED SHARIF |
Ninth applicant
And
| EMMANUEL ZERVAS |
Tenth applicant
And
| ASSETLINK LINK SERVICES (17) PTY LIMITED (ACN 126 171 079) |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for preliminary discovery brought under rule 7.23 of the Federal Court Rules 2011.
The applicants are 10 prospective applicants in a prospective fair work application. The respondent was their employer and the prospective respondent to the fair work application. The respondent provided security services and the applicants were security guards.
Basically, the applicants sought preliminary discovery to help them decide whether to bring a fair work proceeding against the respondent.
The respondent argued that this court has no power to make an order for preliminary discovery, and, in the alternative, that the grounds for making an order for preliminary discovery have not been made out.
It was decided to deal with the question of the court’s power as a threshold issue. The question of whether the grounds for making an order for preliminary discovery will be dealt with separately, if it is held that the court does have power to make such an order.
The parties filed written submissions. The applicants’ written submissions were filed after the respondent’s but did not respond to the question of whether the court has power to make an order for preliminary discovery. The applicants explained that was because their written submissions were drafted before the respondent’s, but were not filed first due to a technical issue with filing them. The parties also made brief oral submissions.
Legislation
The respondent noted that s.43(1) of the Federal Circuit Court of Australia Act 1999 (“the Act”) is headed Practice and procedure and provides that:
The practice and procedure of the Federal Circuit Court of Australia is to be in accordance with Rules of Court made under this Act. However, this subsection is subject to any provision made by or under this or any other Act with respect to practice and procedure.
However, the respondent failed to note that s.43(2) and (3) of the Act provide that:
(2)In so far as the provisions applicable in accordance with subsection (1) are insufficient:
…
(b)the Rules of Court made under the Federal Court of Australia Act 1976 apply, with necessary modifications, so far as they are capable of application and subject to any directions of the Federal Circuit Court of Australia or a Judge, to the practice and procedure of the Federal Circuit Court of Australia in relation to the jurisdiction of the Federal Circuit Court of Australia under laws of the Commonwealth other than [family law legislation] …
(3)In this section:
“practice and procedure” includes all matters in relation to which Rules of Court may be made under this Act.
In any event, the respondent then noted that s.45 of the Act provides that:
45 Interrogatories and discovery
(1)Interrogatories and discovery are not allowed in relation to proceedings in the Federal Circuit Court of Australia unless the Federal Circuit Court of Australia or a Judge declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.
(2)In deciding whether to make a declaration under subsection (1), the Federal Circuit Court of Australia or a Judge must have regard to:
(a)whether allowing the interrogatories or discovery would likely to contribute to the fair and expeditious conduct of the proceedings; and
(b)such other matters (if any) as the Federal Circuit Court of Australia or the Judge considers relevant.
The respondent said that s.81 of the Act relevantly provides that:
81 Rules of Court
(1)The Judges, or a majority of them, may make Rules of Court:
(a)making provision for or in relation to the practice and procedure to be followed in the Federal Circuit Court of Australia (including the practice and procedure to be followed in registries of the Federal Circuit Court of Australia); or
(b)making provision for or in relation to all matters and things incidental to any such practice or procedure, or necessary or convenient to be prescribed for the conduct of any business of the Federal Circuit Court of Australia; or
(c)prescribing matters required or permitted by:
(i) any other provision of this Act; or
(ii) any other law of the Commonwealth;
to be prescribed by the Rules of Court.
(2)Rules of Court have effect subject to any provision made by another Act, or by rules or regulations under another Act, with respect to the practice and procedure in particular matters.
The respondent then noted that the Federal Circuit Court Rules 2001 (“the Federal Circuit Court Rules”) were amended on 1 August 2018 to include as item 3B in Part 2 of Schedule 3 a reference to Division 7.3 of the Federal Court Rules 2011 (“the Federal Court Rules”). It is that Division of the Federal Court Rules that provides for preliminary discovery in rule 7.23.
The respondent noted that Schedule 3 of the Federal Circuit Court Rules has effect by virtue of rule 1.05 of the Federal Circuit Court Rules, which provides as follows:
(1)It is intended that the practice and procedure of the Court be governed principally by these Rules.
(2)However, if in a particular case the Rules are insufficient or inappropriate, the Court may apply … the Federal Court Rules … in whole or in part and modified or dispensed with, as necessary.
(3)Without limiting subrule (2):
…
(b)the provisions of the Federal Court Rules set out in Part 2 of Schedule 3, apply, with necessary changes, to general federal law proceedings.
Note:These Rules have effect subject to any provision made by an Act, or by rules or regulations under an Act, with respect to the practice and procedure in particular matters: see subsection 81(2) of the Act.
The respondent then noted that rule 7.23 of the Federal Court Rules provides that:
7.23 Discovery from prospective respondent
(1)A prospective applicant may apply to the Court for an order under subrule (2) if the prospective applicant:
(a)reasonably believes that the prospective applicant may have the right to obtain relief in the Court from a prospective respondent whose description has been ascertained; and
(b)after making reasonable inquiries, does not have sufficient information to decide whether to start a proceeding in the Court to obtain that relief; and
(c)reasonably believes that:
(i) the prospective respondent has or is likely to have or has had or is likely to have had in the prospective respondent’s control documents directly relevant to the question whether the prospective applicant has a right to obtain the relief; and
(ii) inspection of the documents by the prospective applicant would assist in making the decision.
(2)If the Court is satisfied about matters mentioned in subrule (1), the Court may order the prospective respondent to give discovery to the prospective applicant of the documents of the kind mentioned in subparagraph (1)(c)(i).
The respondent noted that the 1 August 2018 amendment to the Federal Circuit Court Rules had the effect of incorporating rule 7.23 of the Federal Court Rules into the Federal Circuit Court Rules.
The respondent’s arguments
The respondent argued that s.81 of the Act only permitted rules to be made for, or in relation to, practice and procedure. The respondent argued that the 1 August 2018 amendment, in so far as it incorporated rule 7.23 of the Federal Court Rules, did not make a rule for practice and procedure, but impermissibly purported to confer a power on the court to make orders for preliminary discovery. The respondent said that power was inconsistent with the Act.
In support of that proposition, the respondent relied on BCI Media Group Pty Ltd v Corelogic Australia Pty Ltd [2020] FCA 1556 where Charlesworth J, discussing rule 7.23 of the Federal Court Rules, said at [38] that:
THE LIMITS OF RULE 7.23
The following observations may be made about the rule:
…
(10)The power to make an order for preliminary discovery is both conferred and confined by r 7.23(2). It is significant that the documents subject to the order must be “of the kind mentioned in subparagraph (1)(c)(i)”, namely, documents “directly relevant to the question whether the prospective applicant has a right to obtain the relief”. (emphasis added)
The respondent noted that the Federal Circuit Court Rules cannot be repugnant to the Act which authorised them. The respondent argued that s.45 of the Act provides that discovery is not allowed in the Federal Circuit Court, unless a judge declares that discovery is appropriate in a particular case in the interests of the administration of justice. The respondent submitted that the requirement to consider the interests of the administration of justice is in conflict with rule 7.23 of the Federal Court Rules, which requires the consideration of the subjective beliefs of one of the parties involved.
The respondent further noted that, in Mondal v Transclean Facilities Pty Ltd [2020] FCCA 1334, Judge O’Sullivan said at [61]:
What is clear from the FCCA Act, the Rules and the case law relevant to these provisions, is that discovery is rare and the threshold is high.
In contrast, the respondent noted that, in Shorey v One Key Workforce Pty Ltd (in liq) [2020] FCA 1750, Murphy J said at [32] that rule 7.23:
… is to be beneficially construed, and given the fullest scope that its language will reasonably allow …
The respondent also noted that s.45 of the Act provides that a judge of this court may allow discovery after having regard to whether discovery would be likely to contribute to the fair and expeditious conduct of the proceedings. In the present case, the respondent noted, the purpose of the preliminary discovery was to help the applicants decide whether to start a proceeding.
The respondent said in paragraphs 21 and 22 of its written submissions that:
21.There is conflicting authority at the Federal Court level as to whether an application for preliminary discovery is a “proceeding” within itself18 or whether it is merely an application that is “an antecedent step to what might or might not result in the commencement of a proceeding.”19 If a preliminary discovery application is merely an application that may lead to a “proceeding”, then the FCCA has no jurisdiction to make any orders for discovery as its power to order discovery is confined by s 45 of the Act to the existence of a proceeding. On the other hand, if the application is a “proceeding” within itself, then an order for discovery is the final relief being sought within that proceeding. An order granting final relief would not conform with the statutory prerequisite of being “in the interests of the administration of justice” by “contribut[ing] to the fair and expeditious conduct of the proceedings” – it would end the proceeding.
22.In either case, the “proceeding” contemplated by Parliament in s 45 (as made clear by sub-section (2)) is a proceeding that is already being conducted, not one that is merely contemplated. This is indicative of Parliament intending to “cover the field” about when discovery orders may be made by the FCCA. It is inconsistent with this intention … for r 7.23 of the FC Rules to allow for an order for discovery to be made without a substantive proceeding already being commenced.
18[Shorey v One Key Workforce Pty Ltd (in liq) [2020] FCA 1750 (Murphy J)] at [22]; citing Carnegie Corporation Limited v Pursuit Dynamics Plc [2007] FCA 1010; (2007) 162 FCR 375 (French J) at [48]-[53].
19Telstra Corporation Limited v Minister for Communications, Information Technology and the Arts; In the matter of an application by Opel Networks Pty Limited [2007] FCA 1331 (Graham J) at [15]-[17].
The applicants’ arguments
The applicants said in oral submissions that:
a)there was no inconsistency;
b)the power given by rule 7.23 is a practice and procedure provision; and
c)that power does not contravene s.45 of the Act.
Consideration
A rule conferring a power on the court is not beyond the bounds of s.81 of the Act, which allows the judges of this court to make rules:
a)for or in relation to the practice and procedure to be followed in the court; or
b)for or in relation to all matters and things incidental to any such practice or procedure, or necessary or convenient to be prescribed for the conduct of any business in the court.
That is because, firstly, there are many powers that are an integral part of a court’s practice and procedure, for example, the power to award costs, the power to add or remove a party to a proceeding, the power to appoint a litigation guardian, the power to extend time, the power to give summary judgment, the power to enforce orders of the court. A rule does not cease to relate to matters of practice and procedure simply because it gives the court a power. BCI Media does not detract from that conclusion.
Secondly, the rule making authority given by s.81 is not confined to rules relating to practice and procedure. It extends to matters necessary or convenient to be prescribed for the conduct of any of the business of the court. That provision gives ample authority for rule 7.23.
Nevertheless, the respondent argues that rule 7.23 is inconsistent with s.45 of the Act, which prohibits discovery in proceedings in this court unless a judge declares that discovery is appropriate in the interests of the administration of justice, having regard to whether the discovery would be likely to contribute to the fair and expeditious conduct of the proceedings.
In considering whether there is an inconsistency between rule 7.23 and s.45 of the Act, it is immaterial that discovery might be rare in this court. If there is an inconsistency, it would not be possible to order preliminary discovery in even the rarest and most exceptional of cases.
In any event, rule 7.23 is not necessarily inconsistent with s.45 of the Act. In considering an application under rule 7.23, a judge could make a declaration that preliminary discovery is appropriate in the interests of the administration of justice, after considering whether preliminary discovery would be likely to lead to the fair and expeditious conduct of the proceedings. There are a number of other matters that must also be considered in an application under rule 7.23. However, s.45 of the Act does not prevent them being considered as additional matters to be taken into account.
The respondent then argued that s.45 only allows an order for discovery to be made in relation to proceedings after consideration of whether the order would contribute to the fair and expeditious conduct of the proceedings.
The conflict in Federal Court authority mentioned by the respondent in paragraph 21 of its written submissions seems to have been resolved in favour of an application for preliminary discovery being a proceeding. In Shorey, Murphy J said at [22]:
In Telstra CorporationLimited v Minister for Communications, Information Technology and the Arts[2007] FCA 1331, decided under the previous rules, Graham J held that a third party cannot be joined to or given leave to intervene in an application for preliminary discovery because it is not a “proceeding”. I respectfully disagree. A “proceeding” is defined in s 4 of the FCA to mean “a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding...” which in my view includes an application for preliminary discovery under r 7.23. I note also that the decision in Telstra Corporation was given without reference to earlier authority which provides that an application for preliminary discovery is a “proceeding” (Carnegie CorporationLimited v Pursuit Dynamics Plc [2007] FCA 1010; (2007) 162 FCR 375 (French J as his Honour then was) at [48]-[53]) which decision has been subsequently followed: Gearhart United Pty Ltd v Omni Oil Technologies (Asia) SDN BHD[2010] FCA 401; (2010) 267 ALR 630 (Besanko J) at [14]; Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (No 7)[2010] FCA 902 (Bennett J) at [4].
In other words, the weight of authority, including more recent authority, is overwhelmingly in favour of an application under rule 7.23 being a proceeding. It is appropriate that I follow Shorey. For completeness, I note that the definition of proceeding in s.5 of the Act is the same as the definition of proceeding in s.4 of the Federal Court of Australia Act 1976.
In that event that the court followed Shorey, the respondent argued that:
if the application is a “proceeding” within itself, then an order for discovery is the final relief being sought within that proceeding. An order granting final relief would not conform with the statutory prerequisite [in s.45] of being “in the interests of the administration of justice” by “contribut[ing] to the fair and expeditious conduct of the proceedings” – it would end the proceeding.
That submission misunderstands s.45(2)(a) of the Act. The prerequisite that the order for discovery be appropriate in the interests of the administration of justice does not include a prerequisite that discovery would be likely to contribute to the fair and expeditious conduct of the proceedings. Whether discovery would be likely to contribute to the fair and expeditious conduct of the proceedings is a matter the court must consider. However, it is not expressed as a prerequisite.
As is always the case when the legislature specifies a list of matters to which a decision maker must have regard in making a decision, if a matter does not apply, it need not be considered. Similarly, such lists do not require that the matters being considered be resolved one way or the other. Such lists just require that decision makers turn their minds to the listed matters, and consider those of them that arise.
The only prerequisite in s.45 for an order for discovery is that it be appropriate in the interests of the administration of justice. Rule 7.23 is not inconsistent with that.
In addition, a judge considering an application for preliminary discovery could decide that allowing it would be likely to lead to the fair and expeditious conduct of the proceedings consisting of the application for preliminary discovery. However, I accept that s.45(2)(a) of the Act is obviously directed to the more usual circumstance of ongoing proceedings in which discovery might play a small part.
Moreover, s.43(2)(b) of the Act provides that:
In so far as the provisions applicable in accordance with subsection (1) are insufficient:
…
(b)the Rules of Court made under the Federal Court of Australia Act 1976 apply, with necessary modifications, so far as they are capable of application and subject to any directions of the Federal Circuit Court of Australia or a Judge …
That provision, without the inclusion of item 3B in Part 2 of Schedule 3 of the Federal Circuit Court Rules, would have permitted an application in this court for preliminary discovery. Paragraph 43(2)(b) of the Act is part of the Act. It conveys a Parliamentary intention for this court to apply any rule from the Federal Court of Australia Rules that would be helpful in any proceeding in this court.
For these reasons, I reject the respondent’s arguments. I consider that rule 7.23 is not inconsistent with s.45 of the Act. It follows that item 3B in Part 2 of Schedule 3 of the Federal Circuit Court Rules is valid.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 27 January 2021
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