Abdirahman v Assetlink Link Services (17) Pty Limited (No 2)
[2021] FCCA 477
•15 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Abdirahman v Assetlink Link Services (17) Pty Limited (No 2) [2021] FCCA 477
File number(s): MLG 3521 of 2020 Judgment of: JUDGE RILEY Date of judgment: 15 March 2021 Catchwords: INDUSTRIAL LAW – application for preliminary discovery. Legislation: Evidence Act 1995, s 75
Federal Circuit Court of Australia Act 1999, ss 45
Federal Circuit Court Rules 2001, r 1.05, item 3B in Pt 2 of Sch 3
Federal Court Rules 2011, r 7.23
Federal Court Rules 1979, o 15A r 6
Cases cited: Abdirahman & Ors v Assetlink Link Services (17) Pty Limited [2021] FCCA 90
Atkins Freight Services Pty Ltd v Fair Work Ombudsman [2017] FCA 1134
BCI Media Group Pty Ltd v Corelogic Australia Pty Ltd [2020] FCA 1556
Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442
Kowalski v Trustee, Mitsubishi Motors Australia Limited Staff Superannuation Pty Ltd [2003] FCAFC 18
Outback Stores Pty Ltd v Smith [2020] FCA 1785
Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd (2017) 257 FCR 62; (2017) 351 ALR 103; (2017) 128 IPR 205; [2017] FCAFC 193
Quanta Software International Pty Ltd v Computer Management Services Pty Ltd (2000) 175 ALR 536; (2000) 49 IPR 25; [2000] FCA 969
The Herald and Weekly Times Ltd v The Guide Dog Owners’ and Friends’ Association [1990] VR 451
Number of paragraphs: 68 Date of last submission: 1 March 2021 Date of hearing: 1 February 2021 Place: Melbourne Solicitor advocate for the Prospective Applicants: Yusuf Mohamud Solicitor for the Prospective Applicants: Starnet Legal Counsel for the Prospective Respondent: Andrew Denton Solicitor for the Prospective Respondent: Mark Diamond ORDERS
MLG3521/2020 BETWEEN: MOHAMED ABDIRAHMAN
First Prospective Applicant
ALI AL SHAHER
Second Prospective Applicant
MOHAMED ALI (and others named in the Schedule)
Third Prospective Applicant
AND: ASSETLINK LINK SERVICES (17) PTY LIMITED
Prospective Respondent
ORDER MADE BY:
JUDGE RILEY
DATE OF ORDER:
15 MARCH 2021
THE COURT ORDERS THAT:
1.The application for preliminary discovery filed on 30 September 2020 be dismissed.
REASONS FOR JUDGMENT
INTRODUCTION
This is an application for preliminary discovery brought under rule 7.23 of the Federal Court Rules 2011 and rule 1.05 and item 3B in Part 2 of Schedule 3 to the Federal Circuit Court Rules 2001. The effect of rule 1.05 and item 3B in Part 2 of Schedule 3 to the Federal Circuit Court Rules 2001 is to apply rule 7.23 of the Federal Court Rules 2011 in this court. Rule 7.23 of the Federal Court Rules 2011 allows a person to apply for preliminary discovery, that is, for discovery prior to filing a proceeding seeking substantive relief.
The prospective applicants are security guards. The prospective respondent was their employer.
The prospective applicants seek preliminary discovery to help them decide whether to bring a fair work proceeding against the prospective respondent. In the prospective proceeding, the prospective applicants think that they might allege that the prospective respondent underpaid them, and they might seek recovery of the underpayments.
THE THRESHOLD ISSUE
At a hearing on 16 December 2020, the prospective 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 had not been made out.
Judgment on the threshold issue of whether this court has power to make an order for preliminary discovery was delivered on 27 January 2021 in Abdirahman & Ors v Assetlink Link Services (17) Pty Limited [2021] FCCA 90. It was determined that this court does have such power.
The matter returned to court on 1 February 2021 for the hearing of oral submissions on whether the grounds for making an order for preliminary discovery were made out. These reasons for judgment address that question.
DOCUMENTS RELIED UPON
The prospective applicants relied on:
(a)their outline of submissions filed on 14 December 2020; and
(b)the affidavit affirmed by their solicitor, Yusuf Mohamud, on 28 September 2020.
The prospective respondent relied on its outline of submissions filed on 9 December 2020.
THE PROSPECTIVE RESPONDENT’S OBJECTIONS TO THE PROSPECTIVE APPLICANTS’ AFFIDAVIT
The prospective respondent objected to certain parts of the affidavit affirmed by Yusuf Mohamud on 28 September 2020. At the hearing on 1 February 2021, the prospective applicants agreed to those parts being struck out. Orders were made by consent on 1 February 2021 that:
In the affidavit of Yusuf Mohamud affirmed on 28 September 2020:
a. in paragraph 6, the second sentence be struck out;
b.in paragraph 7, the second sentence be struck out; and
c. paragraphs 15 and 19 be struck out.
However, it appears that the prospective applicants’ consent to those orders was based on a misapprehension. The prospective respondent argued vigorously that applications under r.7.23 are final hearings, rather than interlocutory matters. The prospective applicants appear to have consented to particular matters being struck out on the basis that hearsay was not permitted in applications of this type.
While preparing this judgment, I came across paragraphs 27 and 79 of Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd (2017) 257 FCR 62; (2017) 351 ALR 103; (2017) 128 IPR 205; [2017] FCAFC 193 where Allsop CJ said that applications under rule 7.23 are interlocutory. Murphy, O’Brien and Marks JJ came to the same conclusion a long time ago in The Herald and Weekly Times Ltd v The Guide Dog Owners’ and Friends’ Association [1990] VR 451 at 455.
In the circumstances, my chambers asked the parties by email whether:
a.the respondent wishes to withdraw some or all of its objections to Mr Mohamud’s affidavit;
b.the applicants wish to withdraw their consent to the striking out of some or all of the passages of that affidavit to which objection was taken;
c.the parties consent to some or all of the orders made on 1 February 2021 being vacated; and
d.the parties wish to make any further submissions.
The prospective applicants said that they did wish to withdraw their consent to the relevant passages being struck out and the prospective respondent opposed leave to that effect being granted.
I was inclined to list the matter for further submissions on the point. However, for the reasons which follow, that proved to be unnecessary.
THE DOCUMENTS SOUGHT BY THE PROSPECTIVE APPLICANTS
In their application filed on 30 September 2020, the prospective applicants sought preliminary discovery of the following documents:
a.Each prospective applicant’s contract of employment
b.Position description for each prospective applicant
c.All payslips and financial year pay summaries
d.Documents which provide the record of hours worked. The records must state the start and finish time of each shift of the prospective applicants
e.Security Register Book copies as they relate to the Prospective Applicants’ record of hours worked
f.Crowd Control Register as they relate to the Prospective Applicants’ record of hours worked
g.Deed of Releases and settlement offers
h.All wage queries submitted by the Prospective Applicants
The documents above must be for the Prospective Applicant’s entire period of employment with the Prospective Respondent.
Prior to the hearing on 1 February 2021, the prospective respondent provided to the prospective applicants copies of the documents in items c, d and g in that list, except for the settlement offers referred to in item g, which the prospective applicants did not press. Consequently, items c, d and g were no longer sought by the prospective applicants. However, at the hearing on 1 February 2021, the prospective applicants were given leave to amend their application to add another category of documents which became paragraph (i) and was:
the roster for each prospective applicant for the periods of their employment with the prospective respondent.
Ultimately, the prospective applicants sought preliminary discovery of:
a.Each prospective applicant’s contract of employment;
b.Position description for each prospective applicant;
c.…
d.…
e.Security Register Book copies as they relate to the Prospective Applicants’ record of hours worked;
f.Crowd Control Register as they relate to the Prospective Applicants’ record of hours worked;
g.…
h.All wage queries submitted by the Prospective Applicants; and
i.the roster for each applicant for the periods of their employment with the respondent.
RULE 7.23
Rule 7.23 of the Federal Court Rules 2011 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 BASIC PRINCIPLES
White J described the basic principles applicable to an application under r.7.23 in Outback Stores Pty Ltd v Smith [2020] FCA 1785 as follows:
26The elements of the entitlement to preliminary discovery for which r 7.23 provides are:
(a)the prospective applicant believes that it may have the right to obtain relief in this Court from a prospective respondent (subr (1)(a));
(b)that belief is reasonable (subr (1)(a));
(c)the prospective applicant has made reasonable inquiries with a view to obtaining sufficient information to decide whether to start a proceeding in the Court to obtain that relief (subr (1)(b);
(d)having made those inquiries, the prospective applicant still lacks sufficient information to make the identified decision (subr (1)(b));
(e)the prospective applicant believes that the prospective respondent has or has had, or is likely to have or have had, documents in its control which are directly relevant to the question of whether the prospective applicant has a right to obtain the relief (subr (1)(c)(i));
(f)that belief is reasonable (subr (1)(c)(i));
(g)the prospective applicant believes that its inspection of the documents of the prospective respondent would assist it in making the decision (subr (1)(c)(ii)); and
(h)that belief is reasonable (subr (1)(c)(ii).
(italics in original)
27Each of these elements must be satisfied. Even when they are, the Court retains a discretion to refuse to make the orders (r 7.23(2)).
THE THIRD PROSPECTIVE APPLICANT
The prospective respondent argued that the third prospective applicant’s claim under r.7.23 could not succeed because he has instructed a solicitor to commence proceedings in the Fair Work Commission relating to underpayments. The prospective respondent argued that meant that the third prospective applicant did not satisfy r.7.23, because the third prospective applicant patently had sufficient information to start a proceeding in the Fair Work Commission.
That is not to the point. The question in r.7.23(1)(b) concerns whether the third prospective applicant has sufficient information to start a proceeding in a court. The requirements for starting a proceeding in the Fair Work Commission may be different. However, no evidence, one way or the other, was given to the court regarding this issue. In the circumstances, I am not in a position to conclude that the third prospective applicant giving instructions to commence proceedings in the Fair Work Commission means that he has sufficient information to commence a proceeding in a court.
THE DEEDS OF RELEASE
It was common ground that the first, second, fourth, fifth and sixth prospective applicants had all entered into deeds of release with the prospective respondent in respect of underpayments. It was common ground that the deeds were all in substantially the same form as the one contained in exhibit YM-10 to Mr Mohamud’s affidavit.
The prospective respondent argued that the effect of the deeds was that, even if the first, second, fourth, fifth and sixth prospective applicants had a subjective belief that they had a right to relief, they could not have had a reasonable belief that they had a right to relief, because the deeds of release were an absolute bar to relief.
The prospective applicants argued that the deeds of release could possibly be set aside, and therefore, they did not constitute an absolute bar to relief.
Obviously, deeds of release are a contract, and can be set aside on any of the grounds that contracts in general can be set aside. In addition, in Atkins Freight Services Pty Ltd v Fair Work Ombudsman [2017] FCA 1134 (22 September 2017), White J considered a deed of release in an underpayments claim. His Honour noted at [49] the well-established principle that it is not open to parties to contract out of the minimum entitlements established by awards, except where the parties compromise bona fide current or contemplated litigation: Kowalski v Trustee, Mitsubishi Motors Australia Limited Staff Superannuation Pty Ltd [2003] FCAFC 18.
The deeds of release in the present case do not refer to any bona fide current or contemplated litigation. Recitals B and C say:
B.The Worker, or one of the Worker’s colleagues, raised concerns regarding a potential underpayment relating to the payment of overtime.
C.As a result of these concerns being raised, the Employer conducted a pay audit of all the Workers’ payments compared to hours worked.
That is, it may have been the case that none of the first, second, fourth, fifth and sixth prospective applicants themselves that raised an issue, but one of their colleagues. Also, the issue raised only related to overtime.
However, the deeds purport to release the prospective respondent from any claims by the first, second, fourth, fifth and sixth prospective applicants for the underpayment of wages generally. There is nothing to indicate that the first, second, fourth, fifth or sixth prospective applicants, at the time the deeds of release were signed on or about 26 October 2018, had an intention to bring bona fide legal proceedings against the prospective respondent for underpaid overtime, much less for underpaid wages generally. There was no evidence that such proceedings were certainly on foot.
This claim is similar to Atkins Freight in that no particular wage claim was identified in the deed of release. As in Atkins Freight, that circumstance reinforces the conclusion that there was no bona fide current or contemplated legal proceedings that the deeds of release settled.
Also, similarly to Atkins Freight, this appears to be a case where the employer raised the issue of underpayments with the first, second, fourth, fifth and sixth prospective applicants, and persuaded them to accept lump sum payments: see [51]. That circumstance also reinforces the conclusion that, in the present matter, there was no bona fide current or contemplated legal proceedings that the deeds of release settled.
In view of Atkins Freight, it seems to me that the first, second, fourth, fifth and sixth prospective applicants may have a reasonable prospect of the deeds of release being set aside, and therefore, the existence of the deeds of release does not necessarily mean that the first, second, fourth, fifth and sixth prospective applicants could not have a reasonable belief that they have a right to relief.
QUANTUM
The prospective respondent argued, formally, that the prospective applicants’ case could not succeed because it goes only to quantum. For that argument, the prospective respondent relied on BCI Media Group Pty Ltd v Corelogic Australia Pty Ltd [2020] FCA 1556 where Charlesworth J said that:
68.Critically, the power of this Court to make an order under r 7.23(2) is expressly confined to documents of the kind mentioned in subpara (1)(c)(i). It does not pick up all documents that might fill the gap in information of the kind that subpara (1)(b) is concerned with [such as documents going to quantum]. On that construction it would follow that the Court is not empowered to make an order for the discovery of the documents that do not contain any information that is directly relevant to establishing the prospective applicant’s right. It may be that documents ordered to be produced under r 7.23(2) incidentally contain information that is not directly relevant in the requisite sense but that otherwise inform the decision as to whether or not to commence a suit. In my view discovery of that material is not the purpose of the rule.
69My analysis is inconsistent with Sackville J’s reasoning in Quanta concerning documents going only to quantum. His Honour’s reasoning has not been overruled or disapproved in any of the authorities to which the parties referred. The circumstance that Quanta was decided under the old rule does not provide a sufficient basis to distinguish it. The relevant textual components of the old rule remain intact in r 7.23. The reasoning in Quanta has been applied in at least one case decided under r 7.23 and otherwise referred to with approval since the rule was enacted. The reasoning is not plainly wrong and it is appropriate that I follow it: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [135].
The prospective respondent only put the argument formally, because, like Charlesworth J, it is appropriate that I follow the reasoning of Sackville J in Quanta Software International Pty Ltd v Computer Management Services Pty Ltd[2000] FCA 969; 175 ALR 536.
However, there is another reason that I should not follow the reasoning of Charlesworth J set out above, which, incidentally, her Honour described in [60] as a preliminary view. That reason is that, in the present case, unlike in BCI, quantum is integral to the right to relief, because the prospective claim is an underpayment claim.
In BCI, the prospective claim was a breach of copyright. If that claim were made out, the applicant would have the right to relief in the form of an amount of damages. Rule 7.23(1)(c)(i) is directed at documents that go to whether the applicant has a right to relief, not the quantum of that relief. In a breach of copyright claim, the right to relief, in the form of the court declaring that there has been a breach of copyright, is entirely separate from, and preliminary to, the quantum of that relief.
In the present case, the very essence of the right to relief, if any, is that there has been an underpayment. That necessarily raises questions about the quantum of the underpayment. If no amount had been underpaid, there would be no right to relief.
SEPARATE PROSPECTIVE APPLICANTS
The prospective respondent also noted that in BCI, Charlesworth J said at [38(8)] that:
On an application joining several prospective respondents, the contemplated claim against each of them must be considered separately.
The prospective respondent argued that the obverse also applied, and the claims of each prospective applicant had to be considered separately, and they could not all rely on the single affidavit of their solicitor.
I accept that the claims of each prospective applicant must be considered separately. However, whether they can all rely on their solicitor’s affidavit really depends on what it says. This is discussed below.
SECTION 45
The prospective respondent also argued that the application should fail because there was nothing in Mr Mohamud’s affidavit that addressed the interests of the administration of justice as required by s.45 of the Federal Circuit Court of Australia Act 1999. That section 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.
Lander J in Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442 said at [54] that:
Section 45(2) identifies the circumstances in which it would be “appropriate”, in “the interests of the administration of justice”, to make an order for discovery, by requiring the Federal Magistrate to have regard to whether an order for discovery “would be likely to contribute to the fair and expeditious conduct of the proceedings” and any other relevant matter. An application for discovery in the Federal Magistrates Court should be approached on the basis that the application should be refused unless the making of an order requiring a party to give discovery would be likely to contribute to the fair and expeditious conduct of the proceeding or there is some other relevant matter that would mean that an order would be in the interests of the administration of justice. The expression, “the administration of justice”, must be understood by reference to the scheme of the Act and the presumption that discovery is not usually necessary for the fair and expeditious disposal of the proceeding.
I would have thought that, if the requirements of r.7.23 were met, s.45 of the Act would not present a very high hurdle to a prospective applicant. However, for the reasons expressed below, it is unnecessary to determine this point.
THE PROSPECTIVE APPLICANTS’ SUBJECTIVE BELIEFS
The prospective respondent argued that the application in respect of each particular prospective applicant could not succeed without evidence from each prospective applicant, or evidence from which it could be inferred, that each prospective applicant subjectively believed that he:
(a)… may have the right to obtain relief in the Court from the prospective respondent …; and
…
(c)… 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.
That submission was based on Outback Stores where Justice White said that:
25 …
(a)rule 7.23 requires that the prospective applicant have a reasonable belief. That is to say, the test is now both subjective and objective – the prospective applicant must itself hold a belief and that belief must, objectively speaking, be reasonable …
…
28The prospective applicant must provide evidence to establish its own subjective belief of [particular] elements … and point to material indicating that its belief about each of those matters is reasonable.
…
46A final matter bearing on the first difficulty in the application of OBS, is the second of the elements identified above. As noted, that element requires the Court to be satisfied that the subjective belief of the prospective applicant that it may have the right to obtain relief in this Court from a prospective respondent is reasonable. That will usually require the Court to be satisfied that each of the elements necessary for a cause of action may be established (but not that they do in fact exist) ... It is difficult for the Court to make that assessment in respect of a belief to which the relevant deponent does not depose.
It is important to note that rule 7.23 differs significantly from its precursor in O 15A r 6 in the Federal Court Rules 1979 in that the precursor did not require a subjective belief, and cases saying that only an objective belief is required are no longer applicable.
In the present matter, none of the prospective applicants swore or affirmed an affidavit himself. When the prospective respondent raised the point at the hearing on 1 February 2021 that the prospective applicants needed to provide evidence about their subjective beliefs, the court asked the prospective applicants’ solicitor if he wished to have an opportunity to supplement the prospective applicants’ evidence. However, he said that he did not.
The only evidence of the prospective applicants’ subjective beliefs that they may have the right to obtain relief in this court from the prospective respondent is Mr Mohamud’s statement in the first sentence of paragraph 19 of his affidavit that:
The employees reasonably believe that they have the right to obtain relief for a claim of underpayment against Assetlink.
That sentence was struck out by consent, as discussed above. It does not seem to me to be possible to infer from Mr Mohamud’s more general statement in his affidavit, that he was engaged by the prospective applicants to investigate a claim against the prospective respondent for underpayments, or from the circumstance that the prospective applicants have brought this proceeding, that they each in fact have the subjective belief that they may each have the right to obtain relief from the prospective respondent.
As mentioned above, I did consider whether to hold another a hearing to determine whether to allow the prospective applicants to withdraw their consent to the first sentence of paragraph 19 of Mr Mohamud’s affidavit being struck out. However, for the following reasons, I consider that such an exercise would have been futile.
To the extent that the first sentence of paragraph 19 of Mr Mohamud’s affidavit is evidence of the prospective applicants’ subjective beliefs, it could only be hearsay. To the extent that that sentence asserts that the prospective applicants’ beliefs are reasonable, it is misguided. It is for the court to determine whether the prospective applicants’ subjective beliefs are reasonable or not.
Pursuant to s.75 of the Evidence Act 1995:
In an interlocutory proceeding, the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source.
Mr Mohamud has not has not adduced evidence of the source of his assertion of the prospective applicants’ subjective beliefs. One may be inclined to presume that the source of the assertion is each of the prospective applicants themselves. However, in circumstances where Mr Mohamud has not distinguished between his clients in relation to which of them has a copy of his contract of employment or wage queries (discussed below), it does not seem to me to be safe to draw the inference that Mr Mohamud has spoken individually to each prospective applicant and ascertained his subjective belief.
It would not have been at all difficult for Mr Mohamud to have complied with s.75 of the Evidence Act 1995 by saying in his affidavit:
Each of the prospective applicants has told me that he believes that he has the right to obtain relief for a claim of underpayment against Assetlink.
In the absence of a clear statement such as that set out in the previous paragraph, I do not consider that it would be proper to infer that each applicant had the required subjective belief.
CONCLUSION
It follows that the court cannot make orders for any of the documents sought by the prospective applicants to be provided by the prospective respondent. However, I will make some additional, but not exhaustive, comments amount some of the categories of documents sought.
ITEM A: THE CONTRACTS OF EMPLOYMENT
In relation to item a, the contracts of employment, Mr Mohamud said in his affidavit at paragraph 17 that:
Some employees have located partials of the documents below. To assist the Court, I will annex copies of such documents.
One of the documents Mr Mohamud listed “below” was a contract of employment. Exhibit YM-7 was a copy of a contract of employment. It consisted of a letter addressed to Imran Ashkar, the fourth prospective applicant.
It may be that the prospective respondent routinely sent letters to new employees, including all of the prospective applicants, containing their contracts of employment. It is possible that some prospective applicants have misplaced their contracts of employment, and that inspecting a copy of their contract of employment would assist them in deciding whether to commence substantive proceedings against the prospective respondent.
However, the difficulty with the evidence before the court is that it is unclear which prospective applicants, like Mr Ashkar, still have their contract of employment and which do not. That is, it is unclear which prospective applicants, if any, satisfy r.7.23(1)(b), in so far as it relates to contracts of employment.
Therefore, even leaving aside the subjective belief issue, I would not be able to make an order for the prospective respondent to give discovery of the contract of employment to any specific prospective applicant.
Having said that, it is difficult to understand why the prospective respondent would not give each prospective applicant a copy of his contract of employment upon request.
ITEM B: POSITION DESCRIPTIONS
In relation to item b, the position descriptions, Mr Mohamud said in his letter dated 8 September 2020 to the prospective respondent (YM-5) that he sought the position descriptions:
(if not included in the contract or there is no contract)
I infer from that letter that each particular prospective applicant would only be assisted by his position description if he does not have his contract of employment.
As the evidence does not permit the court to conclude that any particular prospective applicant has been unable to locate his contract of employment, I would not be able to be satisfied that any particular prospective applicant would be assisted by discovery of his position description.
ITEM H: ALL WAGE QUERIES
In relation to item h, the wage queries, Mr Mohamud said in his affidavit at paragraph 17 that:
Some employees have located partials of the documents below. To assist the Court, I will annex copies of such documents.
One of the documents Mr Mohamud set out below was a wage query. Exhibit YM-11 was a copy of a wage query. It consisted of a form filled out by a manager in respect of a wage query by Mohamed Ali, the third prospective applicant.
Similarly to the contracts of employment, the evidence does not permit me to know whether any particular prospective applicant lodged a wage query a copy of which he has not already been given. In these circumstances, it is unclear which prospective applicants, if any, satisfy r.7.23(1)(b), in so far as it relates to wage queries.
Therefore, I would not be able to make an order for the prospective respondent to give discovery of any wage queries to any specific prospective applicant.
I certify that the preceding sixty eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley . Associate:
Dated: 15 March 2021
SCHEDULE OF PARTIES
MLG 3521 of 2020 Applicants
Fourth Prospective Applicant:
IMRAN ASHKAR
Fifth Prospective Applicant:
SADIK DEMIRAL
Sixth Prospective Applicant:
PHOOLA SINGH DHILLON
Seventh Prospective Applicant:
AHMED OSMAN
Eighth Prospective Applicant:
HASAN REKABI
Ninth Prospective Applicant:
MOHAMED SHARIF
Tenth Prospective Applicant:
EMMANUEL ZERVAS
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