Auld v Star Health Group Limited

[2020] FCA 1308

FEDERAL COURT OF AUSTRALIA

Auld v Star Health Group Limited [2020] FCA 1308

File number(s):

VID 358 of 2019

Judgment of:

O'CALLAGHAN J

Date of judgment:

14 September 2020

Catchwords:

PRACTICE AND PROCEDURE – discovery – application for non-standard discovery under rr 20.13 and 20.15 of the Federal Court Rules 2011 (Cth)

Legislation:

Federal Court Act 1976 (Cth) s 37M

Federal Court Rules 2011 (Cth) rr 20.11, 20.14

Cases cited:

Clifton (Liquidator) v Kerry J Investment Pty Ltd trading as Clenergy [2020] FCAFC 5; 379 ALR 593

Division:

Fair Work Division

Registry:

Victoria

National Practice Area:

Employment and Industrial Relations

Number of paragraphs:

12

Date of last submissions:

26 August 2020

Date of hearing:

Determined on the papers

Counsel for the Applicant:

The applicant made submissions on his own behalf

Solicitor for the Respondents:

Ms E Cole of DLA Piper

ORDERS

VID 358 of 2019

BETWEEN:

JOHN AULD

Applicant

AND:

STAR HEALTH GROUP LIMITED ACN 136 368 771

First Respondent

DAMIAN FERRIE

Second Respondent

GRANT HAMILTON (and others named in the Schedule)

Third Respondent

ORDER MADE BY:	O'CALLAGHAN J
DATE OF ORDER:	14 SEPTEMBER 2020

THE COURT ORDERS THAT:

1.Within 28 days of the date of this order, the applicant provide the respondents with discovery of all documents evidencing or quantifying:

(a)the loss that the applicant has allegedly sustained as a result of the alleged adverse action of the respondents (including during the period of the applicant’s employment with the first respondent);

(b)the steps taken by the applicant to mitigate that loss, including any documents relating to current employment being undertaken by the applicant (such as, but not limited to, any contract of employment, position description, documents relating to payment, or performance reviews) and any employment applications; and

(c)any income, whether from employment, government benefit, or otherwise, received by the applicant (including but not limited to annual PAYG summaries, bank statements, tax returns, or payslips) from February 2018 to date but excluding any documents provided by the first respondent to the applicant.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O’CALLAGHAN J:

1. By an interlocutory application dated 13 August 2020, the respondents seek an order for discovery.  The order proposed in the application is as follows:

   Pursuant to Rule 20.13 of the Federal Court Rules 2011 (Cth), the applicant is ordered to provide the respondents with discovery of all documents evidencing or quantifying:

   (a)the loss that the applicant has allegedly sustained as a result of the alleged adverse action of the respondents (including during the period of the applicant’s employment with the respondent);

   (b)the steps taken by the applicant to mitigate that loss, including any documents relating to current employment being undertaken by the applicant (such as, but not limited to any contract of employment, position description, documents relating to payment or performance reviews) and any employment applications; and

   (c)any income whether from employment, government benefit, or otherwise received by the applicant (including but not limited to annual PAYG summaries, bank statements, tax returns, or payslips) from February 2018 to date but excluding any documents provided to the First Respondent [sic] to the Applicant.

2. In support of their application, the respondents rely upon an affidavit of Ms Elizabeth Cole, their solicitor.

3. Ms Cole deposes that the applicant was granted leave to amend his statement of claim to include a claim of economic loss at a case management hearing before Kerr J (to whom this case was previously docketed) on 30 January 2020.  She refers to the transcript of that hearing, where his Honour told the applicant:

   [I]f you do take advantage of the leave the court has granted you to identify your loss, then plainly you’re going to have to produce all the documents relevant to the loss you assert and the basis upon which you assert that loss.

4. On 13 February 2020, the applicant amended his statement of claim to include an allegation that he has suffered economic loss.

5. Ms Cole deposes that she sent the applicant a letter on 17 February 2020 requesting that he provide discovery of all documents evidencing or quantifying his claim for damages for economic loss, and proposing consent orders to that effect, but received no response.

6. The applicant opposes the respondents’ application.  He proposes a different order, which provides instead for the following, more limited categories of documents to be discovered:

   (a)Payslips from any employment other than Star Health Limited from February 2018 until recent.

   (b)Group certificates/payment summaries from employment other than Star Health for year 2017/2018, 2018/2019.

   (c)A copy of any new contract the applicant has entered into since termination if available.

   (d)Copies of correspondence with AHPRA regarding the renewal of the applicant’s registration as a physiotherapist.

   (e)Any other documents on which the applicant will seek to rely [to] establish loss suffered not already in the possession of the respondents.

7. The applicant submits that the order proposed by the respondents is too broad, and that the order he proposes would be more consistent with r 20.11 of the Federal Court Rules 2011 (Cth) (the Rules) and s 37M of the Federal Court of Australia Act 1976 (Cth) (the Act).

8. The applicant submits that the order proposed by the respondents “would seem to require the review of all of [the] documents in [his] possession, to assess whether they are required to be produced or not”, and that “[t]his will be time consuming, and inefficient, and may be unlikely to produce anything, except the replication of information”.  He points to several documents already provided to the respondents that he believes would fall within the scope of their proposed order, and says that reviewing and producing these documents again would be time consuming and will provide no new information.  He contends that the production of bank statements, position descriptions and performance reviews is unnecessary and intrusive.

9. Having considered Ms Cole’s affidavit and the applicant’s submissions, I am satisfied that the order sought by the respondents will facilitate the just resolution of the proceeding in the manner required by r 20.11 of the Rules and s 37M of the Act. The documents the respondents seek are necessary in order to test the applicant’s claim of economic loss. The efficient conduct of the proceeding demands that they be made available, sooner rather than later.

10. The categories of documents sought relate to the affairs of an individual over a confined and relatively recent period.  I am not convinced that they will require the discovery of an unmanageably large quantity of documents.

11. Further, the respondents’ order will not necessarily require the applicant to review “all documents in his possession” as he contends: see Clifton (Liquidator) v Kerry J Investment Pty Ltd trading as Clenergy [2020] FCAFC 5; 379 ALR 593 at 640 [172] (Besanko, Markovic and Banks-Smith JJ) (“on a proper construction of r 20.15, where an order for non-standard discovery is made the requirements of r 20.14 [relating to standard discovery] will continue to apply unless an application is made to have them excluded. The requirements of r 20.14 include that the documents are ‘directly relevant’ to the issues raised in the proceeding”). The respondents seek an order for non-standard discovery, but have made no application for the requirements of r 20.14 of the Rules not to apply. The applicant will therefore be required to discover those documents falling within the terms of the order: (i) that are directly relevant to the issues raised; (ii) of which he is aware after a reasonable search; and (iii) that are, or have been, in his control.

12. For those reasons, I will make an order substantially in the form sought by the respondents.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O’Callaghan.

Associate:       

Dated:       14 September 2020

SCHEDULE OF PARTIES

VID 358 of 2019
Respondents
Fourth Respondent:	JASON KING
Fifth Respondent:	KRISTAN MEHEW
Sixth Respondent:	MEREDITH WILDES