Adcock v Blackmores Ltd
[2015] FCCA 1958
•20 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ADCOCK v BLACKMORES LTD & ORS | [2015] FCCA 1958 |
| Catchwords: PRACTICE & PROCEDURE – Subpoenas – notices of objection – review of registrar’s decision. |
| Legislation: Federal Circuit Court of Australia Act 1999, s.104 |
| Deputy Commissioner of Taxation v Commercial and General Law (SA) Pty Ltd (2011) 197 FCR 417 Mandic v Phillis (2005) 88 ALD 676 Mann v Carnell (1999) 201 CLR 1 Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152 Perpetual Trustees (WA) Ltd v Equuscorp Pty Ltd [1999] FCA 925 DSE (Holdings) Pty Ltd v InterTAN Inc (2003) 127 FCR 499 Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341 |
| Applicant: | DAVID ADCOCK |
| First Respondent: | BLACKMORES LIMITED |
| Second Respondent: | CECILE COOPER |
| Third Respondent: | RICHARD HENFREY |
| Fourth Respondent: | LINDA REDFEARN |
| File Number: | SYG 3036 of 2014 |
| Judgment of: | Judge Cameron |
| Hearing date: | 6 July 2015 |
| Date of Last Submission: | 6 July 2015 |
| Delivered at: | Sydney |
| Delivered on: | 20 July 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr D.P O’Connor |
| Solicitors for the Applicant: | PCC Lawyers |
| Counsel for the Respondents: | Mr B. Rauf |
| Solicitors for the Respondents: | HWL Ebsworth Lawyers |
| Counsel for subpoenaed party, Metagenics Inc: | Mr J.B Spinak |
ORDERS
The orders of the registrar made on 26 May 2015 be set aside and in their place the following orders be made:
(a)Paragraphs 2, 3, 4, 5, 6 and 7 of the subpoena addressed to the applicant be amended by deleting the words “until now” and replacing them with “to 9 September 2014”.
(b)Paragraph 8 of the subpoena addressed to the applicant be struck out.
(c)Paragraphs 2 and 3 of the subpoena addressed to Nicky Dolman be amended by deleting the words “until now” and replacing them with “to 9 September 2014”.
(d)Metagenics Inc have liberty to apply on 2 days’ notice.
(e)Paragraph 6 of the subpoena addressed to the first respondent be amended by omitting the words “between 1 January 2014 and 9 September 2015” and replacing them with “passing between the second respondent, the third respondent, the fourth respondent, Christine Holgate and Peter Osborne or any of them between 1 July 2014 and 9 September 2014”.
(f)Paragraph 7 of the subpoena addressed to the first respondent be amended by adding to the end of the paragraph the words “relating to the applicant”.
(g)Paragraph 9 of the subpoena addressed to the first respondent be struck out.
The respondents’ application in a case supported by the affidavit of Sian Patricia Ryan sworn 30 June 2015 be dismissed as to paragraphs 4 and 5.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3036 of 2014
| DAVID ADCOCK |
Applicant
And
| BLACKMORES LTD |
First Respondent
| CECILE COOPER |
Second Respondent
| RICHARD HENFREY |
Third Respondent
| LINDA REDFEARN |
Fourth Respondent
REASONS FOR JUDGMENT
Introduction
These reasons concern the applicant’s application for review of the decision of a registrar of the Court made on 26 May 2015 regarding objections to subpoenas addressed to the applicant, the first respondent and a Ms Nicky Dolman, an employee of Metagenics Inc (“Metagenics”). They also concern the respondents’ yet to be formally filed application in a case for an order that the applicant produce for inspection certain legal advice referred to in his affidavit sworn on 20 March 2015 and filed in this proceeding.
For the following reasons the registrar’s orders concerning the subpoenas addressed to the applicant and Ms Dolman will be set aside and the time periods referred to in those subpoenas limited to the period concluding at the point when the applicant’s employment with the first respondent ceased. The registrar’s order in relation to the subpoena addressed to the first respondent will also be set aside but will be remade in more precise terms.
At the hearing of these interlocutory applications on 6 July 2015, orders were made, on application by the respondents, that the terms of the subpoenas they caused to be issued and served on the applicant and Ms Dolman be amended. To the extent relevant, the amendments are referred to in the reasons which follow. The other aspects of the respondents’ application in a case will be dismissed.
Background facts
The applicant used to work for the first respondent. His employment terminated in September 2014 in circumstances which are the subject of the present dispute. The applicant alleges that he was made redundant whereas the respondents allege, in substance, that he terminated his employment by purporting to accept what he wrongly characterises as its repudiation of his contract of employment.
The applicant alleges that pursuant to various contractual and industrial instruments, most relevantly an enterprise agreement made in 2013, he was employed by the first respondent as Commercial Manager, Asia and that on or around 4 July 2014 was told that his position would be made redundant. He alleges that from that date until early September 2014 he and the first respondent consulted on alternative roles to which he might be redeployed. He alleges that he accepted none of the positions offered to him and advised the first respondent of this in or around 1 and 4 September 2014. He alleges that the first respondent “refused to recognise” that his role had been made redundant and repudiated his contract of employment by refusing to pay him redundancy benefits allegedly due to him under that contract. He also alleges that the respondents made certain misrepresentations to him in August and September 2014 concerning his workplace rights and the operation of the 2013 enterprise agreement.
The respondents deny that the applicant was told on 4 July 2014 that his position was to be made redundant and allege instead that he had been notified in January 2014 of the first respondent’s intention to restructure its Asian operations. They allege that a process of consultation in relation to that corporate restructure, required by the 2013 enterprise agreement, had commenced in January 2014. That process was alleged to have involved “the obligation to discuss how any losses that may be brought about by proposed workplace change may be averted or mitigated”. The respondents allege that consultation with the applicant had started then and that the meeting on 4 July 2014 was part of that process.
In para.103 of his affidavit sworn 20 March 2015 the applicant deposed to a conversation with the fourth respondent and a Mr Last which occurred in the first respondent’s offices in or about 1 September 2014. The conversation concerned a position which the first respondent had invited the applicant to consider accepting in place of the position which he alleges had been made redundant. According to the applicant’s account of that conversation, he advised the fourth respondent and Mr Last that the suggested position was not acceptable to him and that he did not understand why the redundancy provisions of the 2013 enterprise agreement did not apply. He deposed to having said:
Based on the legal advice I have received, the Enterprise Agreement covers a situation like this.
The respondents allege that on 9 September 2014 the applicant refused to discuss the latest redeployment offered to him and instead claimed that the first respondent had repudiated his contract of employment. He also returned all items of its property that were in his possession. The respondents allege that on 9 September 2014 the applicant’s role had not been made redundant, that it was still in the process of consultation with him and that it had not yet finally determined how his duties would be restructured.
Evidence was adduced that the applicant entered into a consultancy agreement with Metagenics on 2 October 2014. Evidence was also adduced that in October 2014 Ms Dolman became the Vice President, Marketing & Strategy, Asia Pacific and Global Marketing Lead of Innovations at Metagenics and that she was working closely with the applicant in managing its current business in Asia and in developing strategies concerning business opportunities there.
Subpoenas
Three subpoenas issued at the request of the parties have been the subject of objections. Those subpoenas are:
a)the respondents’ subpoena for production addressed to the applicant. As amended by order made on 6 July 2015, it relevantly requires production of:
2.All communications between you and Nicky Dolman from 4 July 2014 until now;
3.All communications between you and any representative of Metagenics Inc. and its related entities from 4 July 2014 until now;
4.All communications between you and Minah Lee from 4 July 2014 until now;
5.All communications between you and Kathy Kim from 4 July 2014 until now;
6.All communications pertaining to your attempts to source work outside of Blackmores Limited from 1 January 2014 [originally 4 July 2014] until now including but not limited to applications for employment, applications for contractor positions, applications for consultancy work and all communications with representatives of recruitment agencies;
7.All communications from or to you pertaining to offers of employment, contract based work or consultancy based work from 1 January 2014 [originally 4 July 2014] until now;
8.All records of documents, including payslips, wage records, bank account statements, deposit books, invoices or receipts, concerning payment of wages, salary, contractor engagement or any other income derived from any means from 9 September 2014 and now.
b)the respondents’ subpoena for production addressed to Ms Dolman. As amended by order made on 6 July 2015 it relevantly requires production of:
2.All documents and things, whether in electronic form or otherwise, in the period from 1 September 2014 [originally “4 July”] until now, containing communications:
(a) between you and David Adcock;
(b) between you and any representative of Metagenics Inc including its related entities pertaining to David Adcock;
(c) concerning or touching upon the engagement of David Adcock either by you, your consultancy or Metagenics Inc including its related entities in any capacity.
3.All documents and things recording any payment made by or on your behalf, including by your consultancy or any other business through which you perform services, to David Adcock in the period from 4 July 2014 until now.
c)the applicant’s subpoena for production addressed to the first respondent. It relevantly requires production of:
6.Copies of all documents including but not limited to emails, correspondence, memorandums, file notes, minutes of meetings, meeting agendas, text messages and/or calendar invites between 1 January 2014 and 9 September 2015 [sic] regarding:
i. The Applicant’s employment;
j. The position of Commercial Manager, Asia; and/or
k. Alterative roles considered or proposed to be undertaken by the Applicant.
7.Copies of all documents including but not limited to emails, correspondence, memorandums, file notes, minutes of meetings and/or text messages between the First Respondent, or its officers, employees or representatives, and Career Capital from on or around 1 July 2014 and 9 September 2014.
…
9.Copies of all documents including but not limited to emails, correspondence, memorandums, file notes, minutes of meetings, meeting agendas and/or text messages, including, but not limited to, of the board of the First Respondent, from in or around January 2013 to 9 September 2014 relating to the development, definite decision, consultation, and implementation of the Asia Hub and/or changes to the role of Commercial Manager, Asia.
Registrar’s decision
On 26 May 2015 the registrar ordered that:
(1)The objection to the subpoena issued to David Adcock be dismissed.
(2)The objection to the subpoena issued to Nicky Dolman be dismissed subject to these reasons.
(3)The objection to the subpoena issued to Blackmores Limited be allowed subject to these reasons.
The registrar limited the scope of the subpoena to Ms Dolman to her “personal documents” and concluded that the subpoena did not extend to any documents of her employer, Metagenics Inc, which she may have had in her custody, power or control.
The registrar limited the scope of para.6 of the subpoena addressed to the first respondent to the period 1 July to 9 September 2014. She also limited the persons whose documents would be caught by the subpoenas to the second, third and fourth respondents, to the first respondent’s chief executive officer, Christine Holgate, and to a Peter Osborne who is alleged by the applicant to have participated in discussions about his reassignment within the first respondent’s business.
The registrar limited the scope of para.7 of the subpoena addressed to the first respondent by adding the words “relating to the Applicant David Adcock” to the end of it on the basis that it was too broad and therefore oppressive. She also struck out para.9 as not relating to any matters in issue.
The Court’s power to review the registrar’s decision is found in s.104(2) and (3) of the Federal Circuit Court of Australia Act 1999 and must proceed as a hearing de novo: r.20.03(a) Federal Circuit Court Rules 2001. In conducting such review, the Court is to review the registrar’s exercise of power, not the individual findings of fact antecedent to that exercise of power: Deputy Commissioner of Taxation v Commercial and General Law (SA) Pty Ltd (2011) 198 FCR 417 at 430 [98]-[99].
Objections
Subpoena to the applicant
The applicant objected to the subpoena addressed to him on the following grounds:
1.The documents subpoenaed as outlined in items 2-8 are irrelevant to the proceedings. The information contained in the requested documents does not relate to the case which concerns repudiation of a contract of employment, breaches of the Fair Work Act 2009 (Cth) and seeks orders for compensation, including notice and redundancy pay. The quantum sought by the Applicant in his claim does not seek compensation for loss of earnings and therefore any arrangement with Metagenics Inc or money received is not relevant.
2.Rule 15A.02 of the Federal Circuit Court Rules 2001 (Cth) provides that a subpoena “requiring a person to produce a document or thing must include an adequate description of the document or thing”. Items 2-8 of the subpoena are extremely broad in nature, and insufficiently particularised to comply with this rule.
3.The Respondents are trying to utilise the subpoena to “fish” for information.
4.Although it is not relevant to the case the Applicant has informed the Respondents that he did not enter into any discussion with Metagenics Inc prior to 9 September 2014, when the repudiation of employment took place, about undertaking any work for it in any capacity. The Applicant can produce evidence in reply to confirm this if suitable.
5.The documents requested impose an unreasonable burden on the Applicant in proportion to the limited potential relevance. The subpoena is therefore vexatious and oppressive and should be set aside.
Metagenics filed a notice of objection on the basis that the documents sought from the applicant contained confidential information belonging to it.
Subpoena to Ms Dolman
The applicant objected to the subpoena addressed to Ms Dolman on the following grounds:
1.Items 2 and 3 of the subpoena involve requests for information that is irrelevant to the case.
2.The documents sought contain significant confidential information belonging to Metagenics Inc. The First Respondent is a competitor of Metagenics Inc and therefore any confidential information provided to them would significantly disadvantage Metagenics Inc who are not a party to the proceedings.
3.The date period of 4 July 2014 to 23 April 2015 is not only irrelevant but also oppressive in nature. The time period bears no relevance to the matters in the proceedings.
4.Ms Nicky Dolman is an employee of Metagenics Inc, who was previously employed by the First Respondent. The subpoena is nothing more than a ‘fishing expedition’ to try and uncover information in relation to two former employees of the First Respondent, Ms Dolman and the Applicant.
Metagenics repeated in the context of the subpoena addressed to Ms Dolman the objections it had made to the subpoena addressed to the applicant.
Subpoena to the first respondent
The first respondent objected to paras.6, 7 and 9 of the subpoena addressed to it on the grounds that paras.6 and 9 were oppressive and that para.7 was too wide and potentially captured documents of no relevance to the proceeding.
Submissions
Subpoenas to the applicant and Ms Dolman
The applicant submitted that the subpoenas addressed to him and Ms Dolman were, based on submissions made to the registrar by the first respondent, addressed to:
a)whether he had mitigated his damages; and
b)whether he had undertaken consultations with it in good faith.
He submitted that those two issues were neither pleaded nor the subject of evidence in the affidavits and that this was because the respondents were not in a position to make allegations of that sort or to adduce evidence to that effect. He submitted that the subpoenas were no more than fishing expeditions designed to prove matters not presently in issue.
For its part, Metagenics submitted that mitigation of damages was not an issue on the pleadings and that the subpoenas addressed to the applicant and Ms Dolman sought documents far beyond what would be considered relevant for the determination of the issues in dispute. It also submitted that the subpoenas to the applicant and Ms Dolman would, if answered, disclose to the first respondent, its business competitor, much highly confidential and commercially sensitive information for no legitimate forensic purpose. It submitted that the subpoenas required the production of documents which post-dated the commencement of the applicant’s consultancy with it and so included documents generated in the course of the day to day running of its business.
Referring to the orders made by the registrar, Metagenics further submitted that the limitation of the subpoena addressed to Ms Dolman to “personal” documents should, in logic, have also been applied to the subpoena addressed to the applicant but, in any event, it was misconceived as both the applicant and Ms Dolman had sent material containing its confidential information from their personal email accounts. It submitted that more was required to exclude its confidential business documents from the scope of the subpoenas than that the subpoenas be limited to the applicant and Ms Dolman’s personal documents.
Metagenics also submitted that should some of its confidential documents need to be produced notwithstanding its objections, then inspection should be limited to the respondents’ legal representatives and be subject to a confidentiality regime.
The respondents submitted that the legitimate forensic purpose to which the subpoenas in question were directed was the genuineness of the applicant’s consultations about whether a suitable position could be found for him in its restructured organisation. The respondents submitted that the subpoenas addressed to the applicant and Ms Dolman extended into the period when the applicant was a consultant for Metagenics because such documents might refer to or shed light on discussions which had occurred prior to the termination of the applicant’s employment with the first respondent and on his attitude to employment with the first respondent.
The respondents submitted that under the 2013 enterprise agreement the first respondent could not decide to make a position redundant without having first undertaken the consultation process and that such consultations had to be pursued before an entitlement to redundancy under the agreement arose. The respondents argued that they were entitled to know whether the applicant had opened negotiations with other potential employers at the same time he was consulting with the first respondent and submitted that they had reason to believe that there had been some communications between Ms Dolman and the applicant. They submitted that they were entitled to know the nature and extent of discussions which had occurred about the consultancy into which the applicant ultimately entered with Metagenics. In summary, it appears that the respondents’ concern is that during the consultation process the applicant was actively seeking alternate employment and engineered what he characterised as a redundancy by rejecting positions offered to him whereas, if he had been genuine in his consultations, a suitable redeployment might have been agreed upon between him and the first respondent.
The respondents submitted that if there were communications which revealed that the applicant had, before September 2014, made up his mind to pursue a new opportunity and obtain a redundancy payment then that went not only to the issue of repudiation but also to the applicant’s allegations of misrepresentation referred to later in these reasons.
Subpoena addressed to the first respondent
The respondents supported the amendments effected by the registrar’s orders. They submitted that para.6 in the terms in which it had been issued was excessively burdensome and thus oppressive. They submitted that the order made by the registrar in relation to para.7 had been appropriate because the subpoena as originally expressed required documents of no relevance to the applicant or his employment and would have required the first respondent to go through thousands of documents with a view to determining what might be relevant. The respondents further submitted that para.9 was too broad and thus onerous and likely to capture documents of no relevance to the proceeding.
The applicant opposed the amendment to para.6 on the basis that the period during which the first respondent’s restructure was under discussion had commenced in January 2014 and so the registrar should not have limited the starting point of the paragraph to 1 July 2014.
The applicant did not contest the amendment the registrar made to para.7 of the subpoena but submitted at the hearing of these applications that the beginning of the period to which the paragraph applied should be changed from 1 July 2014 to 1 January 2014.
The applicant submitted that para.9 of the subpoena addressed to the first respondent concerned material which touched directly on his employment with the first respondent, the role he had had and whether or not that role was made redundant.
Consideration of submissions
Subpoenas to applicant and Ms Dolman
Although in their submissions the respondents questioned whether the applicant participated in consultations in a genuine manner, their response does not contain an allegation that he did not. Subpoenas are a means by which a party may gather evidence to support its case, not a means to discover whether it has a case. In Mandic v Phillis (2005) 88 ALD 676, Conti J said at 692 [45]:
Counsel for Ms Phillis submitted that the issue raised in relation to the controversial subpoena was merely speculative, and was therefore an abuse of the court’s process because it amounted to no more than a “fishing expedition” on the part of counsel for Mr Mandic. A person “fishing” in such a context was described by Jordan CJ in Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575 as “endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all”. The traditional metaphor was elaborated upon by Owen J in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 at 254 as follows:
… a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not …
On the face of it, the respondents’ assertion that the applicant had not consulted in good faith, and their desire to prove that assertion by subpoena, are unrelated to any allegation in the response. If that were true then the subpoenas to the applicant and Ms Dolman would, to that extent, be struck out as fishing and an abuse of process. However, the subpoenas do relate to a pleaded issue: whether the applicant breached the 2013 enterprise agreement.
At the hearing of these interlocutory applications there was discussion concerning whether mitigation of damages was relevant in a proceeding in which the applicant does not seek common law damages but, rather, statutory compensation of a liquidated sort. Further consideration of the response discloses that the respondents do not allege that the applicant failed to mitigate his damage after the contract came to an end and so those particular concerns need not be considered further.
Instead of a mitigation of damages defence of that sort, the respondents allege that the 2013 enterprise agreement required the parties to “discuss measures that can be taken to avert or mitigate against losses brought about by a proposed workplace change”. I infer that it is to this issue that the respondents’ submissions concerning the applicant’s bona fides when participating in the consultations which preceded the cessation of his employment relate were directed. I apprehend that the respondents will want to argue at the trial that if the applicant did not negotiate in good faith he thereby breached the 2013 enterprise agreement and that this would have some significance for any compensation order which the Court might be minded to make.
To the extent that the subpoenas addressed to the applicant and Ms Dolman seek evidence relevant to that issue the objections made to them fail. I also note in passing that I perceive no basis to restrict production to “personal documents” when the terms of the subpoenas are not so limited. However, the subpoenas are, in my view, much broader in reach than is necessary and extend to documents likely to be of no relevance to the applicant’s possible breach of the 2013 enterprise agreement. To the extent that they might, I conclude that the effort of producing them in the time available before the trial next month, together with any related assessment of their commercial confidentiality, is likely to be disproportionate to their evidentiary value.
Consequently, in relation to the subpoena addressed to the applicant, the time period in respect of which documents should be produced pursuant to paras.2 to 7 inclusive should end at the point when the applicant’s employment with the first respondent concluded, 9 September 2014. Additionally, para.8 concerns matters after the applicant ceased to work for the first respondent which are of no relevance to whether he breached the 2013 enterprise agreement. It should therefore be struck out.
Consequently, the applicant is to produce:
a)all communications between him and Nicky Dolman from 4 July 2014 to 9 September 2014;
b)all communications between him and any representative of Metagenics and its related entities from 4 July 2014 to 9 September 2014;
c)all communications between him and Minah Lee and between him and Kathy Kim from 4 July 2014 to 9 September 2014;
d)all communications pertaining to his attempts to source work outside the first respondent from 1 January 2014 to 9 September 2014 including but not limited to applications for employment, applications for contractor positions, applications for consultancy work and all communications with representatives of recruitment agencies; and
e)all communications from or to him pertaining to offers of employment, contract based work or consultancy based work from 1 January 2014 to 9 September 2014.
Paragraph 2 of the subpoena addressed to Ms Dolman concerns a period commencing on 1 September 2014 and, for the same reasons as were expressed in relation to the subpoena addressed to the applicant, should be amended so the period it covers has an end point of 9 September 2014. An amendment of similar effect will be made to para.3 of that subpoena.
In the event that Metagenics believe that some of its sensitive and confidential business documents are likely still to fall within the scope of the subpoenas it will have liberty to apply.
Subpoena to the first respondent
I agree with the registrar that the period of time referred to in para.6 of the subpoena addressed to the first respondent should be limited as she ordered. The range of documents which the paragraph requires be produced is broad and would be liable to be struck out in its entirety for oppression if the period and the number of persons to which it applies were not limited.
The applicant’s submission that para.7 of the subpoena to the first respondent should be extended to 1 January 2014 seemed not to have been foreshadowed, was almost made in passing and was not addressed by the first respondent, an omission which I do not infer to have implied agreement with it. I would not be prepared to make the amendment sought without fuller debate on its appropriateness. Further, the paragraph, as drawn, would catch many irrelevant documents and be needlessly onerous on that account. As ordered by the registrar, the paragraph should be amended by adding the words “relating to the applicant” to the end of the paragraph.
As to para.9, I am not persuaded that documents relating to “the development, definite decision, consultation and implementation of the Asia Hub” are relevant to whether the applicant was made redundant or resigned. What may be relevant are documents concerning the role of Commercial Manager, Asia but documents in that connection already fall within the scope of para.6 of the subpoena and so the requirement in para.9 that they be produced is otiose. Consequently, the paragraph will be struck out.
Application to inspect legal advice
The respondents’ application in a case sought an order that the legal advice referred to in the applicant’s affidavit sworn on 20 March 2015 and filed on 23 March 2015 be produced to the Court and made available to them for inspection. That legal advice is significant because of the allegations of misrepresentation which the applicant makes in his application. He alleges that the respondents variously misrepresented to him that:
a)he was not entitled to notice or redundancy under the 2013 enterprise agreement;
b)senior employees often found it more difficult to have redundancies awarded in the courts; and
c)he was not entitled to receive notice or redundancy pay under the 2013 enterprise agreement because of an express term of his contract which provided that his duties might be varied from time to time.
Section 345 of the Fair Work Act 2009 (“FW Act”) provides:
345 Misrepresentations
(1)A person must not knowingly or recklessly make a false or misleading representation about:
(a)the workplace rights of another person; or
(b)the exercise, or the effect of the exercise, of a workplace right by another person.
(2)Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.
The applicant’s solicitors stated in a letter to the respondents’ solicitors dated 27 May 2015 that the only written advice they had given the applicant on the operation of the 2013 enterprise agreement was contained in an email dated 1 September 2014, a redacted copy of which they enclosed with their letter. In a further letter, dated 5 June 2015, the applicant’s solicitors went further and said that there were no other emails, file notes or letters from them to the applicant containing legal advice on that issue.
The respondents also sought an order concerning confirmation of the applicant’s solicitors’ compliance with any order that the Court might make for the production of the advice. For the reasons given on 6 July 2015, I do not consider that an order of that unusual sort is called for.
Submissions
The respondents submitted that by giving the evidence set out in his affidavit and quoted earlier, the applicant had put his state of mind into play and that that went directly to his allegations of misrepresentation. The respondents also submitted that the applicant’s affidavit evidence raised the issue of the appropriate construction of the 2013 enterprise agreement and whether it had been breached. They argued that the applicant had been given advice on which he had relied when assuming certain positions in his discussions with them.
In the correspondence passing between the parties which preceded the respondents’ application in a case, the applicant’s solicitors stated that the redacted portions of the written advice which they had provided to the respondents’ solicitors on 27 May 2015 did not contain advice on the 2013 enterprise agreement. At the hearing of this application in a case the applicant provided to the Court for its consideration an un-redacted copy of the written advice so that his assertion might be tested.
Consideration
Because the applicant has provided the respondents with a redacted copy of the advice, it is not necessary, at least in relation to the un-redacted passages, to canvass the application to the present facts of the authorities on waiver of legal professional privilege, in particular Mann v Carnell (1999) 201 CLR 1 and cases such as Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152 and Perpetual Trustees (WA) Ltd v Equuscorp Pty Ltd [1999] FCA 925, discussed in DSE (Holdings) Pty Ltd v InterTAN Inc (2003) 127 FCR 499 and by the Full Court of the Federal Court in Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341.
I do not understand the respondents to have argued that provision of the un-redacted part of the advice waived privilege over the redacted part if the latter did not concern the 2013 enterprise agreement’s operation in the applicant’s particular circumstances. The issue is whether the redacted parts did advise on how the 2013 enterprise agreement operated in the applicant’s particular circumstances. Having read and considered the un-redacted version of the advice provided by the applicant, I find that the redacted parts did not advise on how the 2013 enterprise agreement operated in the applicant’s particular circumstances. As a result, the applicant will not be ordered to provide any further portions of that document to the respondents.
Conclusion
For the above reasons, the orders of the registrar made on 26 May 2015 will be set aside and in their place the following orders made:
(a)paragraphs 2, 3, 4, 5, 6 and 7 of the subpoena addressed to the applicant be amended by deleting the words “until now” and replacing them with “to 9 September 2014”;
(b)paragraph 8 of the subpoena addressed to the applicant be struck out;
(c)paragraphs 2 and 3 of the subpoena addressed to Nicky Dolman be amended by deleting the words “until now” and replacing them with “to 9 September 2014”;
(d)Metagenics Inc have liberty to apply on 2 days’ notice;
(e)paragraph 6 of the subpoena addressed to the first respondent be amended by omitting the words “between 1 January 2014 and 9 September 2015” and replacing them with “passing between the second respondent, the third respondent, the fourth respondent, Christine Holgate and Peter Osborne or any of them between 1 July 2014 and 9 September 2014”;
(f)paragraph 7 of the subpoena addressed to the first respondent be amended by adding to the end of the paragraph the words “relating to the applicant”; and
(g)paragraph 9 of the subpoena addressed to the first respondent be struck out.
Additionally, the respondents’ application in a case will be dismissed as to paras.4 and 5.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 20 July 2015
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