Azzi v State of New South Wales

[2023] NSWSC 659

Supreme Court

New South Wales

Medium Neutral Citation:

Azzi v State of New South Wales [2023] NSWSC 659

Hearing dates:

15 June 2023

Date of orders:

16 June 2023

Decision date:

16 June 2023

Jurisdiction:

Common Law

Before:

Elkaim AJ

Decision:

(1) The notice to produce served on the defendant on 1 March 2023 is set aside.

(2) The defendant is to provide the plaintiff’s solicitors with the following documents, provided such documents exist, within seven days:

(a) Any document evidencing a change in policy for employees working out of Australia which was introduced between1 October 2021 and 31 December 2021.

(b) Any document evidencing the policy under which Ms W was given leave during the period from 1 January 2022 to 30 November 2022.

(3) The plaintiff is to pay the defendants costs of the notice of motion filed by the defendant on 21 March 2023.

(4) The costs of the notice of motion filed by the plaintiff on 21 March 2023 are to be costs in the cause.

Catchwords:

CIVIL PROCEDURE – judgments and orders – application for discovery and interrogatories – application to set aside notice to produce where notice was served prematurely – where notice sought production of material not relevant to the case

Legislation Cited:

Anti-Discrimination Act 1977 (NSW), s 25

Civil Procedure Act 2005 (NSW), s 56

Government Sector Employment Act 2013 (NSW)

Uniform Civil Procedure Rules 2005 (NSW), r 59.7

Cases Cited:

Minister for Home Affairs v DUA16and Another [2020] HCA 46; (2020) 271 CLR 550

Xinfeng Australia International Investment Pty Ltd v GR Capital Group Pty Ltd [2020] NSWSC 620

Karan v Minister for Home Affairs [2109] FCAFC 139

Category:

Procedural rulings

Parties:

Maroun (Mark) Azzi (plaintiff)
State of New South Wales (defendant)

Representation:

Counsel:
R Francois (plaintiff)
R Gall (defendant)

Solicitors:
Kennedys Lawyers (plaintiff)
Minter Ellison Lawyers (defendant)

File Number(s):

2023/00066999

Publication restriction:

A suppression order exists in respect of the identity of the person referred to as Ms W.

JUDGMENT

1. On 21 March 2023 the plaintiff filed a notice of motion seeking orders for discovery and interrogatories and the defendant filed a notice of motion requesting that a notice to produce previously served on the defendant be set aside.

2. The respective notices of motion are opposed by the respective respondents. For convenience, I will refer to the parties as plaintiff and defendant.

3. The proceedings in this court commenced with the filing of a summons on 12 October 2022 in which the plaintiff seeks judicial review of a decision made by a representative of the defendant under the Government Sector Employment Act 2013 (NSW).

4. The decision was the termination of the plaintiff’s employment at the State Insurance Regulatory Authority on 12 July 2022. The above summons prompted a further decision on behalf of the defendant, made on 30 November 2022, again terminating the plaintiff’s employment, although without conceding that the earlier termination had been defective.

5. The second termination led to a second summons, filed on 28 February 2023, in which judicial review is also sought. The two proceedings are to be heard together on 4 July 2023.

6. The notices of motion were filed in the later proceedings. During the course of the hearing before me, agreement was reached in respect of the interrogatories and the terms of a confidentiality agreement.

7. The plaintiff relies on the affidavits of Ms Persephone Forster dated 21 March 2023 and his own affidavit dated 29 March 2023. The plaintiff also tendered, as an exhibit, his affidavit dated 23 November 2022.

8. The defendant’s motion is supported by two affidavits of its legal representative, Ms Kate Plowman dated 21 March 2023 and 30 May 2023 respectively. The second affidavit simply corrects a typographical error in the first affidavit. The defendant also relies upon an affidavit of Mr Jacob White dated 28 March 2023. In addition, the plaintiff tendered an affidavit of Ms Erica Machan dated 14 December 2022.

The notice to produce

9. The defendant submitted that the notice to produce should be struck out for a number of reasons:

1. The notice was being used as a device to avoid the need for leave required for discovery, as stipulated by r 59.7(4) of the Uniform Civil Procedure Rules2005 (NSW).

2. The notice was premature, having been served the day after the filing of the summons and before the issues had been defined.

3. The notice sought production of material that was not relevant to the issues between the parties.

4. It would be oppressive to allow the notice to stand.

10. The basic principles were set out by Ward CJ in Eq (as her Honour then was) in Xinfeng Australia International Investment Pty Ltd v GR Capital Group Pty Ltd [2020] NSWSC 620 (Xinfeng) at [36]:

“As I explained in Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd [2019] NSWSC 410 (Broadway Plaza) (at [49]-[59]), there must be a legitimate forensic purpose for a subpoena or notice to produce in that the documents sought must be relevant and must have a sufficient apparent connection to the issues in the case to justify their production (or, put differently, it must be able to be concluded that they could possibly throw light on the issues in the case) (see Lindsay-Owen v HWL Ebsworth Lawyers [2017] NSWSC 1692 at [24] per Rothman J). It is not, however, sufficient merely to show that the documents sought are, or may be, relevant to an issue for decision; rather, it must be shown that it is likely that the documents will materially assist on an identified issue or that there is a reasonable basis, beyond speculation, that it is likely that they will materially assist (see Cohen v Morgans [2019] NSWSC 608 at [63]). This must be determined by reference to the issues in the proceeding (see Broadway Plaza at [52]; see also Rinehart v Rinehart [2018] NSWSC 1102 at [47]).”

11. Dealing with the above four reasons in turn, the first is of little consequence because the effect of the defendant’s motion is to require an adjudication of whether or not the notice to produce should remain.

12. In relation to the notice to produce being premature, if the issues in the case had not yet been defined by the pleadings, and one of the purposes of filing a notice to produce is to obtain documents relevant to the issues, then it must follow that the notice to produce was served prematurely. Put another way, if the validity of a notice to produce is to be determined “by reference to the issues in the proceeding” then the establishment of validity must await the defining of the issues.

13. However, this does not necessarily mean that the notice to produce should be struck out. It is possible that a later served response to the summons would reveal issues consistent with the issues sought to be covered by the notice to produce. That seems to be the case here.

14. In respect of relevance, the plaintiff submitted that the documents called for were directed to this single issue: the plaintiff alleges that the defendant, in making the decision to terminate his employment, had failed to make inquiries of critical facts. This is encapsulated in ground two of the second summons which states at [15]:

“There were no reasons given as to why Mr Parker’s evidence was preferred to that of the plaintiff (particularly given that by 30 November 2022 the Plaintiff’s evidence was on oath in summons proceedings commenced on 12 October 2022), and no investigation was undertaken at any time of the readily available contemporaneous written and electronic communications between the Plaintiff, Mr Parker and Ms W which were the most obvious source of assistance in determining who is account should be believed”.

15. The material sought under [2], [3] and [4] of the notice to produce is said to be the “contemporaneous written and electronic communications” referred to in the just quoted ground.

16. The defendant agreed that the question of the existence of a failure to make inquiries of critical facts was an issue between the parties. The defendant however said that the critical inquiry argument was restricted to “extreme” cases, an example of which was Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550.

17. The merit of the plaintiff’s assertion however is one that will be decided by the trial judge. At this stage the question that I need to answer is whether or not the notice to produce seeks material that is relevant, as dictated in Xinfeng.

18. I think the material is probably relevant to the issue between the parties, but I also think the description of the material is too broad. The plaintiff, in defining the issue, refers to the question of whether an oral direction had been given to the plaintiff about Ms W’s working arrangements being terminated. This in turn generated the observation, by plaintiff’s counsel, that the notice to produce was unlikely to produce anything.

19. I asked counsel what then was the purpose of the notice to produce, if there was likely to be nothing to produce. Counsel responded that the absence of material, which could only be established through the notice to produce (or discovery), was a factor in favour of the plaintiff’s case because it indicated that inquiries about a critical facts had not been made.

20. This somewhat circular reasoning could be valid but, at the same time, gives credence to the defendant’s assertion that the notice to produce is oppressive. While the estimated time (42 hours) and cost ($16,000) are not, at first sight, overtly excessive, they do take on that description when seen against a background of the defendant searching for material that does not exist.

21. The plaintiff’s response to this dichotomy was to refer me to this passage from Karan v Minister for Home Affairs [2109] FCAFC 139, at [30]:

“We reject the appellant’s complaint that SZIAI is distinguishable because “there was an obvious inquiry that should have been undertaken, and such an inquiry would clearly have yielded a useful result”. As we have emphasised, it is telling that the appellant did not adduce any evidence below (or seek to have admitted on the appeal fresh evidence) which established that “a useful result” would have been accomplished if the AAT had made inquiries namely that he lacked the requisite mental capacity to participate effectively in the AAT proceedings”.

22. Thus, the plaintiff’s submission was that in order to find nothing you have to ask for something.

23. Xinfeng refers to “documents that will materially assist”. In my view a search for documents that do not exist is both a waste of time and costs. Moreover, it is contrary s 56 of the Civil Procedure Act 2005 (NSW), in particular taking into account, besides time and costs, that the imminent hearing date will be put at risk.

24. I will make an order that the notice to produce is set aside.

Discovery

25. As already stated, leave is required for discovery in a judicial review matter. The starting point, therefore, is for the plaintiff to establish that the discovery is relevant to facts in issue. The first three categories in this matter relate to the same material sought in the notice to produce. As agreed by the parties, the decision in respect of this category will follow the decision concerning the notice to produce.

26. The remaining areas of discovery are as follows:

“5.   The policy change which was introduced in late 2021 referred to in paragraph 1.17 of page 22 of Exhibit EM-1 to the affidavit Erica Machon affirmed on 14 December 2022 and any documents recording the rationale or background to that policy change.

6.   Any document which records Ms Hogan’s consideration of the documents referred to in paragraphs 4 and five above between the period 1 January 2022 to 30 November 2022.

7b.   The applicable policies under which Ms W was able to access leave during the period to which the summary relates”.

27. Paragraph 5 was said to be relevant “to the direction that was given to Ms W” concerning her continuing working arrangements. The plaintiff says the policy is relevant in order to test whether it was “lawful and reasonable” and that actions were taken “in accordance with that policy change.”

28. The relevance is said to be attached to ground three of the second summons. This ground alleges that the decision to terminate the plaintiff’s employment was “not reasonable nor lawful”. The allegation arises because of the personal circumstances of Ms W, which included her suffering domestic violence while working in Australia. The argument seems to be that the direction given to the plaintiff in respect of Ms W would have contravened the Anti-Discrimination Act 1977 (NSW), in particular s 25.

29. The argument continued that if the directions given in respect of Ms W contravened the anti-discrimination legislation then it would follow that the termination of the plaintiff had rested upon an error of law.

30. The defendant’s response was that the allegation was not a proper subject for judicial review, and in any event the allegation of a breach of the Anti-Discrimination Act 1977 (NSW) was no more than a bare allegation.

31. Counsel for the plaintiff submitted: “…. [a]nd the question is, what am I actually doing, there is something here that suggests there is a document that is relevant. It is not as though I have got no basis for it. That appears to be a relevant document” (Tcpt, 15 June 2023, 37.35). With respect, counsel is at best making an educated guess about the existence of a document which might exist and might be relevant.

32. The defendant submitted that the plaintiff was engaging in a fishing expedition hopefully searching for something that may or may not exist.

33. The existence of a policy could, I think, be relevant if that policy led to a decision without a proper legal foundation. I am reluctant however to order discovery, because as I have said above, I do not want to jeopardise the hearing date and I do not want to impose unnecessary expense upon the defendant. I think the solution is for me to make a direction that the defendant provide to the plaintiff, within say seven days, any document amounting to a change of policy concerning persons working outside Australia introduced between 1 October 2021 and 31 December 2021.

34. In relation to [6], I think it is too broadly described and, in any event, an apparent search for documents which may or may not exist and may or may not be relevant is a fishing expedition.

35. Turning now to [7b], it is again difficult to see the relevance, but nevertheless, the possibility does exist that a decision was made contrary to a policy which in turn might have been contrary to the Anti-Discrimination Act 1977 (NSW). I think, for the same reasons, I will adopt the same approach taken with [5] and make an appropriate direction.

36. So far as costs are concerned, I think each party has had some success on the plaintiff’s motion and there have been some compromises achieved during the hearing. I think the appropriate order is that the costs of this motion be costs in the cause. The defendant has succeeded on its motion, so that the plaintiff should pay the costs.

37. I make the following orders:

1. The notice to produce served on the defendant on 1 March 2023 is set aside.

2. The defendant is to provide the plaintiff’s solicitors with the following documents, provided such documents exist, within seven days:

1. Any document evidencing a change in policy for employees working out of Australia which was introduced between1 October 2021 and 31 December 2021.

2. Any document evidencing the policy under which Ms W was given leave during the period from 1 January 2022 to 30 November 2022.

3. The plaintiff is to pay the defendants costs of the notice of motion filed by the defendant on 21 March 2023.

4. The costs of the notice of motion filed by the plaintiff on 21 March 2023 are to be costs in the cause.

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Decision last updated: 19 June 2023