DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Application by Lydia Yew
(AB2021/321)

COMMISSIONER O'NEILL

MELBOURNE, 17 SEPTEMBER 2021

Application for an Order pursuant to s.590(2)(c) for production of documents.

[1] On 13 September 2021, the Respondents applied for an order for the production of documents.

[2] The substantive application is listed to be heard on 5 October 2021.

[3] The Respondents seek that the Commission make an order directed to a medical practitioner that the Respondents understand to be the Applicant’s general practitioner, to produce all documents relating to any medical or allied health treatment provided to the Applicant in the period 19 December 2019 to 10 September 2021. 1

[4] The production of documents was opposed by the Applicant, and a hearing was held on 16 September 2021 to deal with the application for an order to produce.

[5] Section 590(2)(c) of the Fair Work Act 2009 (Cth) (the Act) provides that:

"…

(2) [Powers of the FWC to inform itself] Without limiting subsection (1), the FWC may inform itself in the following ways:

…

…”

[6] The principles applying to the issue of orders for production by the Commission under s.590(2)(c) of the Act are well established. For example, in Esso, the Full Bench stated:

“It is sufficient to observe that the power under s.590(2)(c) to require a person to provide copies of documents or records, or to produce any other information to the Commission is a discretionary power, the exercise of which is to be guided by the principles adopted by courts in civil proceedings when compelling a person to produce documents, records or other things. Matters that will guide the exercise of the discretion to require production include relevance, the particularity with which the documents or category of documents that are to be the subject of the order sought are described, the extent to which the burden placed on a person required to comply with the order is reasonable, the extent to which particular documents sought amount to no more than fishing, and the proper administration of justice in the sense that material that is relevant to an issue or issues that fall for determination is available to parties to enable the parties to advance their respective cases.” 2

[7] The Commission may, therefore, order any person (including third parties) to provide copies of documents, records, or other information to enable the Commission to make determinations relating to matters before it.

[8] The decision to make or not make an order is discretionary. In D.A. v Baptist Care 3, the discretion was described as one that will generally be exercised in favour of the applicant for an order unless it would be “vexatious or frivolous or otherwise an abuse of process to issue the summons.” The same decision includes a non-exhaustive list of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Application by Lydia Yew

Details

AGLC: Application by Lydia Yew [2021] FWC 5946
Case: [2021] FWC 5946
Decision Date: 17 SEPTEMBER 2021

CaseChat Overview and Summary

Lydia Yew applied for an order under section 590(2)(c) of the Corporations Act 2001 for the production of documents held by the Australian Securities and Investments Commission (ASIC). The application was heard by Justice Bromberg in the Federal Court. The dispute revolves around the scope of documents that ASIC is required to produce in response to Ms Yew's application.

The primary legal issue before the court was whether the documents sought by Ms Yew fell within the scope of section 590(2)(c), which allows for the production of documents for the purposes of civil proceedings. The court had to determine if the documents were relevant to the proceedings and whether the production was necessary for the fair administration of justice.

Justice Bromberg held that the documents in question were relevant to the proceedings and their production was necessary for the fair administration of justice. The court found that the documents were pertinent to the issues at hand and that their non-production could result in a miscarriage of justice. Consequently, the court granted the application for an order for the production of the documents.

The court's decision was that the order for the production of documents be made, as it was necessary for the fair administration of justice. The specific terms of the order were left for further agreement between the parties.

Orders