Allison v The Anglican Schools Commission Incorporated Trading as John Septimus Roe Anglican Community School
[2020] FCCA 760
•3 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALLISON v THE ANGLICAN SCHOOLS COMMISSION INCORPORATED TRADING AS JOHN SEPTIMUS ROE ANGLICAN COMMUNITY SCHOOL & ANOR | [2020] FCCA 760 |
| Catchwords: PRACTICE AND PROCEDURE – Application for discovery – whether it is in the interests of the administration of justice to allow discovery – four categories of documents – relevance of documents sought not established – application dismissed. |
| Legislation: Fair Work Act 2009 (Cth), ss.45, 50, 341, 351 Federal Circuit Court Rules 2001 (Cth), rr.1.03, 14.02 |
| Cases cited: Abrahams v Qantas Airways Limited (No.2) (2007) 210 FLR 314 |
| Applicant: | GREG ALLISON |
| First Respondent: | THE ANGLICAN SCHOOLS COMMISSION INCORPORATED TRADING AS JOHN SEPTIMUS ROE ANGLICAN COMMUNITY SCHOOL |
| Second Respondent: | JASON BARTELL |
| File Number: | PEG 127 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | On the Papers |
| Date of Last Submission: | 31 March 2020 |
| Delivered at: | Perth |
| Delivered on: | 3 April 2020 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Barry Nilsson Lawyers |
ORDERS
The application in a case filed 19 February 2020 be dismissed.
The time in which to comply with order 3 of the orders dated 17 March 2020 be extended to 9 April 2020.
The time in which to comply with order 4 of the orders dated 17 March 2020 be extended to 30 April 2020.
Costs, if any, be reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 127 of 2019
| GREG ALLISON |
Applicant
And
| THE ANGLICAN SCHOOLS COMMISSION INCORPORATED TRADING AS JOHN SEPTIMUS ROE ANGLICAN COMMUNITY SCHOOL |
First Respondent
| JASON BARTELL |
Second Respondent
REASONS FOR JUDGMENT
Background
By application in a case filed on 19 February 2020 the applicant, Mr Allison, seeks discovery of certain categories of documents from the respondent.
By way of background, the applicant filed a substantive application in this Court alleging that he was dismissed in contravention of the general protections provisions of the Fair Work Act 2009 (Cth) (the “FW Act”).
In short, the applicant claims that adverse action was taken against him (by injuring him in his employment and selecting him for redundancy) because he had exercised workplace rights under s.341(1)(a) and (c)(ii) of the FW Act. He also claims a breach of s.351 of the FW Act. The applicant also claims that the respondents breached ss.45 and 50 of the FW Act and breached certain contractual obligations. The respondents deny that any breach or contravention of any sort occurred.
A Court ordered mediation proved unsuccessful and the substantive matter is now listed for final hearing from 19-21 August 2020.
The parties exchanged lists of documents in late 2019. Conferral took place between the parties and it now appears that many of the documents which were sought were in fact provided. This level of cooperation is to be commended. Some documents, however, were not provided. This resulted in the applicant lodging an application in a case requesting that the remaining documents be provided. That request is the subject of this judgment.
The parties agreed to the determination of this on the papers. Orders were made for the filing of submissions and any evidence in relation to the application for discovery. These reasons for judgment consider whether the remaining documents sought by the applicant should be provided to him.
Discovery in this Court
Section 45 of the Federal Circuit Court of Australia Act 1999 (Cth) (the “Act”) provides:
(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 be 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.
Rule 14.02 of the Federal Circuit Court Rules 2001 (Cth) (the “Rules”) also makes provision for matters relating to discovery in this Court.
What is clear from the Court’s Act and Rules, and the case law relevant to these provisions, is that discovery is rare and the threshold is high. Importantly, there is a presumption that the “fair and expeditious conduct of the proceeding” does not require discovery: Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442 at [54]; Vanden Driesden v Edith Cowan University (2012) 226 IR 452.
The “fair and expeditious conduct of the proceedings” (as referred to in s.45(2)(a)) is determined by reference to the objectives that govern this Court. These are set out in s.3 of the Act and r.1.03 of the Rules and can be summarised as follows:
a)the Court should act as informally as possible in the exercise of judicial power;
b)proceedings should not be protracted;
c)the resolution of the proceedings should be achieved justly, efficiently and economically;
d)streamlined procedures should be used; and
e)the Court should seek to avoid undue delay, expense and technicality.
In relation to s.45(2)(b) of the Act, in Abrahams v Qantas Airways Limited (No.2) (2007) 210 FLR 314 at [25] (“Abrahams”) a non-exhaustive list of matters that may be considered “relevant” for the purposes of s.45(2)(b) were identified as follows:
(a)the relevance of any documents sought to be discovered;
(b)the volume of documents sought to be discovered;
(c) whether there is a court book containing relevant documents, and the extent to which relevant documents are included in the court book;
(d) whether discovery would narrow the issues;
(e) whether both parties seek discovery;
(f) whether there is consent to discovery;
(g) whether discovery is “of benefit” to the litigation; and
(h) the effect of discovery on litigants; especially vulnerable litigants.
As noted, this list is not exhaustive. The Court is mindful that it must consider the particular circumstances of the case before it.
The documents sought
The documents that the applicant seeks are as follows:
a)any document and correspondence regarding the development of the “redundancy matrix” (“Category 1”);
b)any notes, documents and correspondence regarding the verification and confirmation of the redundancy matrix by the Union and Staff Union Representatives at the meeting with the second respondent on 30 July 2018 (“Category 2”);
c)a list of all jobs advertised by schools of the Anglican Schools Commission at the end of 2018 to fill positions in 2019 (“Category 3”); and
d)the percentage of part time staff in secondary school at the time the redundancy matrix was applied to secondary staff and the number of secondary school part time staff selected for redundancy out of the seven non-voluntary secondary school staff selected for redundancy (“Category 4”).
Arguably, Category 3 and Category 4 seek “information” as opposed to “documents”. Nonetheless, no objection was taken by the respondents in relation to the way the request was phrased.
Applicant’s Submissions and Evidence
The applicant filed two affidavits in support of the application in a case. The first was affirmed 19 February 2020. That affidavit identified the categories of documents that were outstanding with a brief explanatory note.
The applicant’s second affidavit affirmed 23 March 2020 provided a chronology of the attempts he had made to obtain various documents from the respondents since 18 November 2019. Clearly, a great deal of correspondence was exchanged in an attempt to identify and provide the documents requested.
The applicant’s submissions can be summarised as follows:
a)Category 1 is relevant as it will help the Court determine the factors/reasons an individual was selected for redundancy and whether these included a prohibited reason. This will assist in ascertaining the mindset/intent of the decision-maker;
b)while some documents relating to Category 1 have been supplied, the applicant believes that there are still documents outstanding. This includes notes, documents or correspondence from a meeting held between the Union and the second respondent in March 2018 and July 2018;
c)Category 2 is relevant for the same reasons as Category 1 and because it can be used to determine what advice was received from the Union regarding the selection criteria of the redundancy matrix and whether the Union challenged or opposed particular matters being included;
d)Category 3 is relevant as it will further evidence a pattern of behaviour that demonstrates that the respondents do not comply with the Anglican Schools Commission Enterprise Bargaining Agreement or Fair Work practices;
e)Category 4 is relevant as it will further evidence the bias of the redundancy matrix used in selecting individuals for redundancy and demonstrate that a significantly higher percentage of part time staff were being selected compared with the average percentage of part time staff across the school;
f)the respondents have provided one document in response to Category 4 but this does not indicate the percentage of part time staff employed at the time the redundancy matrix was applied; and
g)if the respondents have not done anything erroneous or taken adverse action for a prohibited reason, one asks why they will not provide what is requested. They could have saved significant time and cost to all involved by simply supplying the documents requested. The only conclusion that can be reached is that the reason they have gone to considerable lengths to avoid supplying the documents requested is that the documents indicate/evidence the respondent acted for a prohibited reason.
Respondents’ Submissions
The respondents’ submit as follows:
a)Category 1 and Category 2 are irrelevant. In this application, the applicant alleges that the redundancy matrix used to select candidates for redundancy was prejudicial to him as it included attendance as one of the criteria for selection. The respondents admit (in their defence) that the redundancy matrix was applied to the applicant and that it included attendance as a criterion for selection. Whether there was a breach of the general protections provisions will be determined by reference to the actual redundancy matrix itself, which was applied and has been provided to the applicant;
b)the Category 1 and Category 2 documents, if they exist, will not further the resolution of the issue of why the applicant was dismissed or the mindset/intent of the decision maker when selecting the applicant. An order for their production would not be in the interests or justice and would not contribute to the fair and expeditious conduct of the proceedings. The requirement to discover such a broad range of documents will if anything put the respondents to needless expense and prolong the conduct of the proceedings beyond that which is necessary to determine the disputed issues;
c)the applicant seeks the Category 3 documents to “evidence a pattern of behaviour” that the respondents do not comply with an applicable enterprise bargaining agreement or “Fair Work practices”. What is sought is effectively propensity evidence and it is clearly not probative of any matter connected to the disputed issues. Further, any order for discovery for such a document (if it exists) would prolong the proceedings beyond that which is necessary to determine the issues in dispute; and
d)the applicant seeks the Category 4 documents to ‘evidence further bias of the matrix”. The applicant has not made any claim in connection with his status as a full or part-time employee. Such documents, if they exist, are therefore manifestly not relevant to the issues in dispute. Any order for discovery for such a document would prolong the proceedings beyond that which is necessary to determine the disputed issues.
Consideration
Category 1 and 2
Categories 1 and 2 can be dealt with together as both concern the redundancy matrix.
The documents sought are:
a)any document and correspondence regarding the development of the redundancy matrix; and
b)any notes, documents and correspondence regarding the verification and confirmation of the redundancy matrix by the Union and Staff Union Representatives at the meeting with the second respondent on 30 July 2018.
The applicant pleads that the respondents used a “prohibited reason” as a criterion for determining who would be selected for redundancy (see, Applicant’s Statement of Claim at [62]-[64]). That prohibited reason was the right to take personal leave. The selection criteria in issue is “attendance”. The applicant is in possession of the redundancy matrix. The respondents have admitted in their defence that “attendance” was a criterion that was used when determining who should be made redundant. There is, therefore, no dispute that attendance was a criterion and a “reason” for the applicant being selected.
The Court has difficulty in understanding how the “development” of the redundancy matrix (and the inclusion of absence as a criterion) will assist the Court in determining the reasons the applicant was selected for redundancy. Attendance was, by admission, considered. How this came to form part of the redundancy matrix is not significant. This is particularly so in circumstances where the applicant has made a submission (and referred to evidence) that the redundancy matrix has been taken from another source.
The relevance of the Category 2 documents is also unclear. What advice the Union gave and whether the Union challenged the inclusion of attendance as a criterion is of no bearing on the reasons why the applicant was selected for redundancy. Nor is it of assistance in ascertaining the mindset/intent of the decision-maker.
To the extent that the applicant refers to an email from a member of the Union stating that it was “their” understanding that “absenteeism being used as a criteria… was removed”, again, this is of no relevance. The criteria was included. This is an admitted fact. If the applicant wants to know why it was included, then that may be a matter for him to explore in any cross-examination that arises at trial. However, this issue does not require the production of the documents now sought.
Further, it may well be that no such documents are discoverable. The respondents have provided some documents that meet the description of Category 1. The applicant wants “more”. He has not indicated how or why what has already been provided to him is insufficient. Given that both parties have indicated their strong desire to ensure that the hearing dates remain in August, to require the respondents to search for documents that may not exist and then ensure sufficient time for the parties to prepare would, in all likelihood, jeopardise the hearing dates now set aside for this matter.
The Court is not satisfied that any further documents would be of assistance or relevance to resolving the issue of why the applicant was dismissed (which is what the applicant submits they would be relevant for). The Court is also not satisfied the production of the documents would be in the interests of justice given that they are of minimal relevance and given the potential negative impact on the resolution of these proceedings if the request is granted.
The Court is of the view it is not in the interests of the administration of justice to allow discovery of Category 1 and 2.
Category 3
The document sought in Category 3 is a list of all jobs advertised by schools of the Anglican Schools Commission at the end of 2018 for positions in 2019.
As the Court understands it, the applicant is seeking this document to provide evidence of a “pattern of behaviour” that will reflect adversely on the respondents and, in effect, undermine their credibility. The applicant’s affidavit affirmed 19 February 2020 states that this category is, in effect, being sought to demonstrate that redundant staff were not redeployed to other schools with advertised vacancies.
The applicant pleads that the respondents have breached ss.45 and 50 of the FW Act because the respondents have failed to adhere to the relevant clauses of the Award and Enterprise Agreement that related to consultation, redundancy, teacher appraisal and dispute resolution. It appears that the pattern of non-compliance relates to this particular issue.
How Category 3 will specifically demonstrate a pattern of behaviour is not clear. A mere list of advertised job vacancies cannot assist the applicant in establishing that adverse action was taken for a prohibited reason or that the respondents have engaged in a pattern of behaviour that demonstrates non-compliance with an Award, Agreement or the FW Act.
The list would be, without context, (i.e., when it was determined that a position needed to be filled and the specific requirements of each role) of little probative value (as the respondents rightly submit).
Accordingly, it is not appropriate in the interests of the administration of justice to order discovery of Category 3.
Category 4
In the final category of documents sought, the applicant seeks a document indicating the percentage of part time staff in secondary schools at the time the matrix was applied and the number of secondary school part time staff selected for redundancy out of the seven non-voluntary secondary school staff selected for redundancy.
It appears the respondents have, again, supplied a document in relation to this request. The applicant, however, wants more. He says that what was supplied does not include the percentage of part time staff at the school at the time the matrix was applied.
On one view, the production of a document or documents of the sort the applicant seeks does not appear to be too onerous. However, if the document is irrelevant then this is not a task that ought to be undertaken in any event.
The applicant says the document is relevant because it will evidence bias. This is not an unfair dismissal claim. What is sought is of no assistance to the applicant in relation to his general protection claim or any of the other matters he pleads.
At no time does the applicant plead or rely on his status as a part time employee as a basis for any of the breaches or contraventions that he alleges. The applicant’s status as a part time employee has no relevance (or any express or implied connection) to the issues before the Court in need of resolution.
Category 4, accordingly, is not open to discovery.
Conclusion
Here:
a)the relevance of the documents the applicant seeks is not entirely apparent and the Court is not satisfied the documents would be of any assistance in resolving the issues in dispute;
b)the documents sought will not narrow the issues in dispute. Rather, they appear to be sought for the purpose of expanding the issues beyond what is expressed in the pleadings (noting, for example, Category 4);
c)the respondents have (in relation to at least two categories) provided the applicant with some documentation in an attempt to satisfy the requests made. The applicant has now identified “more” documents that he hopes will assist him going forward. This can only result in a protracted process of the sort this Court seeks to avoid;
d)the applicant, as a self-represented litigant, will not be disadvantaged by the Court not allowing discovery of the documents. Rather, it will focus the applicant on the matters relevant to his substantive application and direct his attention to the matters that are in issue in these proceedings; and
e)the fact that the respondents have not produced to the applicant the documents he now seeks does not demonstrate that they are “hiding” anything. No adverse inference should be drawn in this regard. The respondents were, as this Court has found, right to refrain from providing the documents sought and have shown themselves to be have been entirely cooperative when attempting to respond to the applicant’s request for documents generally.
Overall, the Court is of the view that it is not appropriate in the interests of the administration of justice to allow discovery of the sort requested here.
The application in a case is, accordingly, dismissed.
The Court will make a minor alteration to the programming orders of 17 March 2020 to provide the applicant with an extended period of time within which to file and serve his evidence in chief.
As for costs, the Court will order that costs, if any, be reserved. Should there be a need to revisit the costs of this application, this should be done at a later date by way of application in a case with supporting affidavit.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 3 April 2020
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