Annovazzi v State of New South Wales Sydney Trains

[2021] FCCA 1119

FEDERAL CIRCUIT COURT OF AUSTRALIA

Annovazzi v State of New South Wales - Sydney Trains [2021] FCCA 1119

File number(s):

SYG 3116 of 2018

Judgment of:

JUDGE MANOUSARIDIS

Date of judgment:

17 May 2021

Catchwords:

PRACTICE AND PROCEDURE – application to set aside subpoena for production – whether subpoena issued for legitimate forensic purpose – subpoena set aside.

Legislation:

Australian Human Rights Commission Act 1986 (Cth) s 46PO

Disability Discrimination Act 1992 (Cth) ss 15(2), 30(2)(a), 30(2)(b)(ii), 35(2)

Cases cited:

Wong v Sklavos [2014] FCAFC 120

Number of paragraphs:

20

Date of hearing:

17 May 2021

Place:

Sydney

The Applicant:

Appeared in person

Counsel for the Respondent:

Mr M Seck

Solicitor for the Respondent:

McCullough Robertson Lawyers

ORDERS

SYG 3116 of 2018

BETWEEN:

RENEE ANNOVAZZI

Applicant

AND:

STATE OF NEW SOUTH WALES - SYDNEY TRAINS

Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	17 MAY 2021

THE COURT ORDERS THAT:

1.The subpoena for production issued to Dr Andrew W Frukacz on 30 April 2021 is set aside.

REASONS FOR JUDGMENT

(Revised from transcript)

1. There has been listed before me today for hearing claims for relief the applicant, Ms Annovazzi, has brought against the respondent, Sydney Trains, under s 46PO of the Australian Human Rights Commission Act 1986 (Cth). Ms Annovazzi, who is not legally represented, claims Sydney Trains engaged in unlawful discrimination on the grounds of Ms Annovazzi’s actual or imputed disabilities, contrary to the provisions contained in the Disability Discrimination Act 1992 (Cth) (DD Act). The disabilities it is accepted Ms Annovazzi has are Attention Deficit Hyperactivity Disorder (ADHD) and Asperger’s Syndrome. 

2. Ms Annovazzi claims Sydney Trains engaged in three classes of unlawful discrimination. The first is what Ms Annovazzi claims is discrimination by Sydney Trains in its capacity as Ms Annovazzi’s employer, contrary to s 15(2) of the DD Act. The alleged discriminatory conduct includes Sydney Trains’ decision to terminate Ms Annovazzi’s employment by a letter dated 30 January 2018. The second alleged class of discrimination is Sydney Trains requesting Ms Annovazzi to provide information or records relating to her disabilities which is alleged to have been done contrary to s 30(2)(a) and s 30(2)(b)(ii) of the DD Act. The third alleged conduct is harassment contrary to s 35(2) of the DD Act.

3. In the afternoon of 13 May 2021, there came to my attention that Sydney Trains had issued a subpoena for production addressed to Dr Frukacz seeking the production of the entire patient file in relation to Ms Annovazzi. The subpoena was returnable on Friday 14 May 2021, being the last business day before the hearing was due to commence. I became aware of the subpoena because there was brought to my attention an email Ms Annovazzi sent to the Court. In that email, Ms Annovazzi stated:

   I write to inform the court that I seek to view my subpoenaed medical records prior to making a decision about any objections. 

   Further, I would appreciate clarification as to the issuing of a subpoena approximately 8 months after, during the directions hearing on the 23/10/2020, the respondent confirmed they had filed all evidence upon which they intended to rely.

4. On my instructions, my Associate wrote to the parties, noting that the email had been brought to my attention and further noting that:

   Assuming documents are produced in answer to the subpoena, questions of access to those documents, and any other questions that may relate to the subpoena, will be determined at the hearing...

5. At the beginning of the hearing on 17 May 2021, that is to say, this morning, after I had explained in general terms how the hearing would proceed, Mr Seck, counsel for Sydney Trains, said that Dr Frukacz’s office informed Sydney Trains’ lawyers that he had posted to the Court Registry documents that fall within the scope of the subpoena. Mr Seck, however, said that the documents had not been received by the Registry, but Dr Frukacz’s office provided an electronic version of the documents to the lawyers of Sydney Trains.

6. After I explained to Ms Annovazzi some principles relating to subpoenas for production, I understood Ms Annovazzi wished to apply for an order to set aside the subpoena on the ground that the documents do not have apparent relevance to any issue in the proceeding. After I heard submissions from Ms Annovazzi and Mr Seck, I was unable to form a view whether the documents did have an apparent relevance. I therefore deferred deciding the point and, instead, arranged for the electronic copy of the documents to be sent to my Associate’s email address and a hard copy made and provided to Ms Annovazzi. I then adjourned the matter to afford Ms Annovazzi time to inspect the documents.

7. At 12:30 pm or thereabouts, the hearing resumed, and I heard further submissions about whether the documents called for in the subpoena are apparently relevant to any issue in the proceeding. I indicated I would give judgment on whether to set aside the subpoena at 2:00 pm. I consider that question in these reasons for judgment.

8. I first briefly refer to the well-known principles that apply to when a party applies to set aside a subpoena for production. These principles are clearly and succinctly set out of in the judgment of the Full Federal Court in Wong v Sklavos, where the Full Federal Court said:[1]

   The party issuing a subpoena bears the onus of demonstrating that the subpoena has a legitimate forensic purpose in relation to the issues in the proceedings. A subpoena may be set aside if it requires the production of documents which do not have apparent relevance to the issues arising on the pleadings. Other cases have used different terminology, but with essentially the same effect, for example, by requiring that, viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative, or that the material sought is reasonably likely to add in some way to the relevant evidence in the case, or that it be “on the cards” that the documents sought will materially assist the party at whose request the subpoena has been issued.

   [1] Wong v Sklavos [2014] FCAFC 120, at [12] (references omitted)

9. The first step, therefore, in determining whether the subpoena that was issued to Dr Frukacz has been issued for a legitimate forensic purpose is to identify the issues in the proceedings. This is done by reference to the pleadings. But to make sense of the proceedings, it will be necessary to set out some basic facts or, at least, alleged facts. These are as follows.

10. On 12 March 2017, Ms Annovazzi submitted an online application for a trainee train driver. In the second half of March, Ms Annovazzi completed an online psychometric test, a supervised psychometric test, and participated in an assessment committee.[2] On 22 May 2017, Ms Annovazzi completed a “Transport Agency Pre-Employment Health Questionnaire”. Ms Annovazzi ticked the box for “No” in relation to questions 1, 2, and 7.20. These questions asked respectively:

    1.Are you currently being treated by a doctor for any illness or injury?

    2.Are you receiving any medical treatment or taking any medication (prescribed or otherwise)? 

    . . . .

    7.20Have you ever had, or been told by a doctor that you had, any of the following: … A psychiatric illness or nervous disorder

    [2] I relied on the dates contained in a document titled “Applicant’s Short Form Chronology with Respondent’s Comments” filed on 8 February 2019

11. On 16 August 2017 Sydney Trains informed Ms Annovazzi that her application was successful, and she commenced her employment with Sydney Trains on 13 October 2017. 

12. According to an affidavit made by Mr Bellia, in late October 2017, he received emails about Ms Annovazzi’s interactions with certain staff. Mr Bellia had a conversation with Ms Annovazzi about those matters in the course of which, according to Mr Bellia, Ms Annovazzi said she had ADHD and Asperger’s Syndrome. Mr Bellia further says that on 2 November 2017 Ms Annovazzi sent to him a text message enquiring about the need to disclose for drug testing purposes “dexamphetamine tablets”. Sydney Trains removed Ms Annovazzi from training and by a letter dated 30 January 2018, it dismissed her employment.

13. I then turn to the pleadings. The amended statement of claim makes the following claims:

    (a)Ms Annovazzi commenced her employment with Sydney Trains on 13 October 2017.

    (b)On 6 November 2017 Sydney Trains removed her from driver training.

    (c)After 6 November 2017 Sydney Trains required Ms Annovazzi to discuss medical and employment issues with Ms Vlahos, an employee of Sydney Trains.

    (d)On 20 December 2017, Mr Chami requested Ms Annovazzi to provide information on her medical state.

    (e)On 20 December 2017, Mr Chami sent an email to Ms Annovazzi in which he asked Ms Annovazzi to provide a medical note/briefing from a treating physician regarding the use of dexamphetamine in relation to ADHD and Asperger’s Syndrome.

    (f)On 25 January 2018, Ms Annovazzi provided a letter from Dr Frukacz.

    (g)On 30 January 2018, Sydney Trains terminated Ms Annovazzi’s employment on the basis of a failure to disclose pre-existing medical condition.

14. On the basis of those alleged facts, Ms Annovazzi alleges her employment was terminated, and there was other conduct which Sydney Trains undertook, either because Ms Annovazzi had imputed to have a disability or because she, in fact, did have a disability; that disability being ADHD and Asperger’s Syndrome.

15. Sydney Trains, in its defence, in broad terms, admits the basic facts alleged in the statement of claim. But it provides additional factual details, and also relies on matters specifically referrable to denying the conduct alleged against it from being discriminatory or, at least, being discriminatory contrary to the provisions of the DD Act.

16. I then turn to the apparent relevance of the documents called for by the subpoena. I have already described what these documents are. They are the patient file of Ms Annovazzi. Mr Seck submitted that these documents are relevant to, at least, two issues. The first is the question of non-disclosure. I had initially understood that Sydney Trains is relying on dishonest non-disclosure. When I retired from the bench to consider my reasons for judgment, I reviewed the pleadings, and noticed there is no allegation in the defence of actual dishonesty. The defence refers to the letter of termination which does not use the words “dishonesty” or cannot reasonably be taken to include the word “dishonesty”. The words there used are to the effect of “non-disclosure and incorrect information”.

17. To that extent, therefore, whether there has been non-disclosure is a matter that depends entirely on the material that the parties have filed. The claim that is made against Sydney Trains, as it understands it, is that various discriminatory acts were done by it on account of Ms Annovazzi’s imputed or actual disability. Sydney Trains’ defence is that it did not engage in conduct and, in particular, it did not terminate Ms Annovazzi’s employment, by reason of any disability, but by reason of Ms Annovazzi’s not disclosing information concerning her medical condition of which Sydney Trains only became aware after it employed Ms Annovazzi. Thus it appears that Ms Annovazzi’s actual medical condition or actual disability, as may or may not be disclosed by the material that is the subject of the subpoena, is not relevant or apparently relevant to the issues as they arise on the pleadings.

18. It could be said that the information could be relevant in the event that Ms Annovazzi succeeds; and, in particular, it may be relevant to the question of reinstatement. At this stage, even if Ms Annovazzi succeeds and reinstatement is the appropriate remedy, reinstatement would, at most, mean reinstatement to the position she was in immediately before the alleged discriminatory conduct which, presumably, would mean she would need to be assessed in the normal course without any operative unlawful discriminatory conduct.

19. In any event, if I am wrong about that, and if the proceeding gets to the point where Ms Annovazzi succeeds and there is a question of remedy, that entire question can be revisited. But I would be surprised, if Ms Annovazzi succeeds, it would be an appropriate use of my discretion to determine the suitability of Ms Annovazzi to be a train driver when under the arrangement she entered into with Sydney Trains, that was a question to be determined by Sydney Trains applying its standards and in accordance with the contracts that it enters into.

20. In those circumstances, I am not satisfied that the subpoena issued in relation to Dr Frukacz has been issued for a legitimate forensic purpose; and I propose to order that that subpoena be set aside. 

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       24 May 2021