Bashour v ANZ
[2020] VSC 478
•5 August 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 05378
| KATHERINE BASHOUR | Applicant |
| v | |
| AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED | First Respondent |
| SUSIE BABANI | Second Respondent |
| JENNIFER EVANS | Third Respondent |
| PHILIP CHRONICAN | Fourth Respondent |
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JUDGE: | MOORE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 July 2020 |
DATE OF JUDGMENT: | 5 August 2020 |
CASE MAY BE CITED AS: | Bashour v ANZ & Ors |
MEDIUM NEUTRAL CITATION: | [2020] VSC 478 |
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ADMINISTRATIVE LAW – Application for leave to appeal decisions of Victorian Civil and Administrative Tribunal – Whether Tribunal denied applicant procedural fairness in making discovery orders – Where Tribunal requested and applicant provided further authority on a point of law – Where Tribunal failed to consider further authority and submissions –Tribunal denied applicant procedural fairness – Leave to appeal granted – Appeal allowed – Whether discretion to grant leave to appeal should be exercised in relation to other grounds of appeal – Where orders subject of appeal are interlocutory – Where applicant asks the Court to substitute its view for the Tribunal’s – Where the grounds of appeal do not raise issues of general or public importance and do not have any real prospect of success – Leave to appeal on other grounds denied – Victorian Civil and Administrative Tribunal Act 1998, ss 97, 148 – Cargill Australia Ltd v Viterra Malt Pty Ltd [2018] VSCA 260, applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | M Harmer, solicitor | Harmers Workplace Lawyers |
| For the Respondents | L De Ferrari SC with C Dowsett | Seyfarth Shaw |
HIS HONOUR:
The applicant seeks leave to appeal against orders made by the Victorian Civil and Administrative Tribunal on 25 September 2019 in relation to discovery. The orders were made in a proceeding brought by the applicant in which she alleges that the respondents contravened various provisions of the Equal Opportunity Act 2010 (the VCAT proceeding).
The first respondent employed the applicant between June 2009 and 1 October 2014. The second to fourth respondents were at relevant times senior employees of the first respondent.[1]
[1]The second respondent was the Global Chief Human Resources Officer of the first respondent; the third respondent was the Chief Risk Officer of the first respondent; and the fourth respondent was the Chief Executive Officer, Australia division of the first respondent.
The applicant’s claims in the Tribunal are part of the regrettably long and protracted history of litigation between the parties relating to the applicant’s claims about how she was treated as an employee of the first respondent and the circumstances in which she ceased employment with it.[2]
[2]The proceeding in the Tribunal was commenced on 20 October 2014. A brief summary of the history of litigation between the parties, which is relevant to understanding the delay in the determination of the proceeding before the Tribunal, is set out in [9].
The appeal is brought pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998.[3] Such an appeal is limited to a question of law and, in the circumstances of this case, requires the leave of the Trial Division of this Court.
[3]Victorian Civil and Administrative Tribunal Act 1998 s 148 (the VCAT Act).
The orders of the Tribunal which are the subject of the application for leave to appeal are as follows:
In relation to the [applicant’s] discovery request the Tribunal heard objections based on irrelevance, but has not yet heard objections based on oppression, legal professional privilege or other grounds.
1.The Tribunal orders that the following requests are granted because of their relevance to matters arising from the application:
4, 14 to 16 inclusive, 20, 42, 43 and 2.3
2.Remaining discovery requests which have been objected to on other grounds include:
9, 37, 39, 40, 41, 81, 87, 102, 104 and 3.5.
These discovery requests are adjourned to a directions hearing to be heard by any member of the Tribunal.
3.The balance of the discovery request is denied on grounds of irrelevance to the application.
In relation to Document 18 (a file note of Dr De Pino, undated, subject of a subpoena and the subject of a claim for legal professional privilege over certain redacted parts of that document):
4.The Tribunal allows the release of Document 18 to the Respondents subject to the three redactions requested by the [applicant].
The appeal is brought against orders 1, 2 and 3. The applicant seeks an order that orders 1, 2 and 3 be set aside.
The questions of law advanced by the applicant are whether:
1. The primary Member erred in committing a denial of natural justice;
2.The primary Member erred in identifying and applying the wrong legal test for relevance in relation to a discovery request;
3.The primary Member erred in making conclusions that were not open to her;
4.If the primary Member identified the correct legal test for relevance, the primary Member erred in misapplying the test;
5.The primary Member erred in failing to provide sufficient reasons.
The grounds of appeal advanced by the applicant are as follows:
1.The primary Member erred in failing to consider the Appellant’s submissions, dated 23 September 2019 (“Appellant’s Submissions”). In doing so, the primary Member did not provide the Appellant a reasonable opportunity to put her case for the granting of documents sought under the discovery process, such that there was a denial of natural justice.
Particulars
(a)The primary Member presided over a hearing on 16 September 2019, during which the parties made oral submissions regarding documents requested by the Appellant as part of discovery.
(b)At the hearing on 16 September 2019, the Respondents filed extensive written submissions at no notice.
(c)In orders dated 16 September 2019 made by the primary Member, the Appellant was provided until 23 September 2019 to file written submissions regarding objections to discovery on the grounds of relevance.
(d)The Written Reasons at [8] note that the primary Member “carefully took into account all written materials and all arguments advanced to me at hearing in coming to my determination.”
(e)The Written Reasons at [8] refer explicitly to the Respondents’ Submissions, and the material provided to the Tribunal by the Applicant prior to and/or at the hearing.
(f)The Written Reasons, whether at [8] or otherwise, do not refer to the Appellant’s Submissions.
(g)The Written Reasons at [14] state that no authorities were provided by the Appellant on the issue of credibility-related discovery categories. The Appellant’s position on this issue was set out at paragraph 2.41 to 2.43 of the Appellant’s Submissions.
(h)The primary Member was in breach of sections 97 and 98(1)(a) of the VCAT Act.
2. Further or in the alternative, the primary Member erred in identifying and applying the wrong legal test by:
(a)unduly narrowing the test for relevance in relation to a discovery request (see specifically [20] of the Written Reasons);
(b)rejecting the approach espoused in Trade Practices Commission v CC (New South Wales) Pty Ltd (No 4) (1995) 58 FCR 426; and/or
(c)failing to have regard to Zhu v Yingle Culture Exchange (Australia) Pty Ltd ACN 113 089 759 (in liq) [2010] NSWSC 107 (at [11]).
3. Further or in the alternative, the primary Member erred in reaching conclusions that were not open to her.
Particulars
(a)In light of the evidence and submissions, it was not open to the primary Member to characterise certain discovery categories as going only to credibility, and thereby holding such categories as not relevant.
(b)In light of the evidence and submissions, it was not open to the primary Member to characterise certain discovery categories as related to an issue that arises “only in the affidavits of the witnesses”, and not “related to an issue that is identifiable from the pleadings, even if only remotely so”; and thereby holding such categories as not relevant.
(c)It was not open to the primary Member to hold that she “preferred the arguments of the Respondents to those of the Applicant” (at [24] of the Written Reasons) in relation to certain documents in circumstances where some categories that were not ordered in favour of the Appellant were not specifically addressed by the Respondents.
(d)It was not open to the primary Member to hold that no authority was provided by the Appellant on the issue of credibility (at [14]) in light of the Appellant’s Submissions.
4.In the alternative, if the primary Member identified the correct legal test in relation to relevance, the primary Member erred in misapplying the test.
Particulars
(a)The Appellant provided to the Tribunal prior to the hearing on 16 September 2019 a table setting out the relevance of each discovery category requested by the Appellant. A large number of discovery categories in this table included express references to the Appellant’s Amended Points of Claim filed in the proceedings below. A large number of these categories were held by the primary Member to be not relevant, notwithstanding they fell within the primary Member’s ‘yardstick’ (at [20] of the Written Reasons).
5. Further or in the alternative, the primary Member erred in failing to provide sufficient reasons, by providing Written Reasons which failed to disclose a path of reasoning that led the primary Member from the available evidence and submissions to her ultimate decision.
Particulars
(a)The Appellant repeats the particulars at paragraphs 3 and 4 above.
(b)It is unclear how the primary Member reached her decision on certain categories.
(c)It is unclear the basis on which certain categories have been denied by the primary Member.
Background to the litigation
The following chronology to the litigation between the parties may be noted:
(a) The applicant commenced work with the first respondent on 18 June 2009.
(b)On 15 January 2014, the applicant made a ‘general protections application’ to the Fair Work Commission regarding, amongst other things, the alleged unilateral variation of her contract of employment with the first respondent relating to the revocation of the first respondent’s flexible work arrangement policy. On 21 February 2014, she commenced proceedings in the Federal Court of Australia against the first respondent and another of its senior managers (the Federal Court proceeding) in relation to those claims.
(c)On 5 August 2014, the applicant made an application to the Federal Circuit Court of Australia for an interlocutory injunction restraining the first respondent from terminating her employment and from making formal directions to her whilst she was on maternity leave. That proceeding was subsequently transferred to the Federal Court pursuant to an application made by the first respondent.
(d)The applicant resigned her employment with the first respondent by letter dated 1 October 2014. She alleges that she was constructively dismissed. On the same date she discontinued the proceeding commenced in the Federal Circuit Court which had been transferred to the Federal Court.
(f)On 20 October 2014, the applicant commenced the VCAT proceeding.
(g)On 20 March 2015, on the first respondent’s application, the Tribunal made an order under s 77(1) of the VCAT Act striking out the applicant’s claim and referring ‘the subject matter of the proceeding’ to the Federal Court.
(i)On 21 August 2015, the applicant commenced a proceeding in this Court seeking judicial review in the nature of certiorari quashing the orders made by the Tribunal striking out the applicant’s claim and referring the subject matter of the proceeding to the Federal Court. The applicant required an extension of time in which to commence the judicial review proceedings. That application was heard by Mukhtar AsJ. In the course of his judgment dated 5 September 2016,[4] his Honour found that there was a strong case that the Tribunal did not have the power to confer jurisdiction on the Federal Court and granted the extension of time.
(k)The substantive judicial review proceeding was heard by McDonald J on 12 September 2016. Because the merits of the application had been substantially addressed in Mukhtar AsJ’s judgment, the primary issue before the Court was the question of costs. McDonald J made orders on 9 November 2016 quashing the orders made by the Tribunal on 20 March 2015. The VCAT proceeding was subsequently reinstated.
(l)On 27 February 2017, the applicant was granted leave to discontinue the Federal Court proceeding.
(m)The VCAT proceeding was listed for trial to commence on 29 May 2017. The trial was vacated, on the applicant’s application, on the grounds of her ill health.
(n)Between May 2017 and 19 February 2019, when the VCAT proceeding was next set down for trial, the applicant made nine consecutive requests for extensions of time to comply with orders made by the Tribunal or to adjourn the VCAT proceeding on the grounds of ill health.
[4]Bashour v Victorian Civil and Administrative Tribunal [2016] VSC 527.
Developments in the VCAT proceeding – 2019
The applicant filed amended points of claim with the Tribunal on 13 February 2019 in relation to the VCAT proceeding. She alleges that she suffered loss and damage, including economic loss, as a consequence of the respondents’ alleged contraventions of the Equal Opportunity Act 2010.
In summary, the applicant alleges that the respondents contravened the Equal Opportunity Act 2010 by: (a) failing to make reasonable adjustments for her disability; (b) engaging in indirect discrimination on the grounds of disability and pregnancy; (c) engaging in direct discrimination on the grounds of disability and her status as a carer; and (d) subjecting her to detriments because she made complaints about her flexible work arrangement and discrimination.
The disabilities relied upon by the applicant in her allegations against the respondents are: exacerbation of pelvic instability; chronic migraines; anaemia; trauma-induced major depressive disorder with co-existing anxiety spectrum and trauma-induced symptoms.
In broad terms, the applicant’s allegations against the respondents relating to discrimination and a failure to make reasonable adjustments arise in connection with the following matters:
(a)a request first made on 28 February 2014 that the applicant provide medical evidence of her fitness for work;
(b)a decision in March 2014 in relation to the applicant’s flexible work arrangements;
(c)a decision dated 21 May 2014 not to allow the applicant to work from home in accordance with her preferred arrangement;
(d)a direction requiring the applicant to attend a medical appointment on 15 July 2014 and an associated decision not to postpone that appointment;
(e)a decision not to postpone the timeframe for the applicant to respond to the letter dated 16 July 2014 concerning her failure to attend the medical appointment on 15 July 2014; and
(f)the alleged constructive termination the applicant employment on 1 October 2014.
On 19 February 2019, the Tribunal made orders providing for the exchange of lists of documents by the parties.
The applicant did not comply with the Tribunal’s orders made on 19 February 2019. Neither did she answer the respondents’ discovery request by the date provided for in the orders, or provide her own list of documents for discovery. The applicant’s legal representative later informed the Tribunal that this non-compliance occurred because of the applicant’s health.
On 8 July 2019, the Tribunal made an extensive set of interlocutory orders in the VCAT proceeding. Those orders provided for the filing of witness statements, discovery, the production of medical records, the filing of expert evidence and the filing of submissions. The proceeding was listed for a 12-day hearing commencing on 18 November 2019.[5]
[5]The duration of the trial was later extended to 20 days and the commencement date changed to 27 November 2019.
The orders made by the Tribunal on 8 July 2019 in relation to discovery relevantly required the following:
(a)the applicant to provide the respondents with the lists of documents for discovery by 25 July 2019;
(b)the respondents to provide written notification to the applicant of any objection to production by 5 August 2019; and
(c)the respondents to provide the documents to which there was no objection by 12 August 2019.
In requests made on 25 July, 26 July and 4 September 2019, the applicant sought discovery by the respondents of 124 categories of documents or, in some cases, individual documents.
On 5 August and 6 September 2019, the respondents provided written notice to applicant of their objections to particular discovery requests. In respect of those categories of discovery for which no objection was taken, the respondents either produced the relevant documents, or notified the applicant where reasonable searches had not located any document falling within the scope of a request.
The dispute between the parties in relation to discovery was heard by the Tribunal on 16 September 2019. At that time, the trial was listed to commence two months later on 27 November 2019. There remained 113 categories of documents in dispute, or which were the subject of outstanding requests for instructions. The large majority of the objections to discovery made by the respondents were on the ground of, or included the ground of, relevance. [6] With the agreement of the parties, the Tribunal heard the dispute on the basis that it would first rule on the objections as to relevance, with any remaining objections to be addressed separately at a later hearing.
[6]106 categories.
The orders made by the Tribunal following this hearing (set out in [5] above) are the orders the subject of the current application. Unfortunately, because of an administrative oversight, the Tribunal did not provide them to the parties until 28 October 2019.
On the applicant’s request, on 4 November 2019, the Tribunal delivered reasons in respect of the making of the orders the subject of the present application (the Reasons). The applicant applied for leave to appeal on 25 November 2019.[7]
[7]Given the delay in the parties being provided with the orders the subject of the present application, the Court granted the applicant an extension of time to file an application for leave to appeal.
Leave to appeal
Parties’ submissions
The appeal requires the leave of the Court.[8] Leave may only be granted if the Court is satisfied that the appeal has a real prospect of success.[9] The respondents submitted, however, that satisfaction of this requirement does not dictate that leave must be granted; it is only the threshold that enlivens the discretion to grant leave. They submitted that the Court should approach the question of leave to appeal by first considering all relevant discretionary considerations and that those considerations justified the refusal of leave, regardless of whether the appeal has a real prospect of success.
[8]VCAT Act (n 3) s 148(1)(b).
[9]VCAT Act (n 3) s 148(2A).
In her primary written submissions on the appeal, the applicant did not advert to the Court having any discretion in relation to the question of leave. It was in fact submitted that, quoting Whelan and Ferguson JJA in Kennedy v Shire of Campaspe,[10] the test for the grant of leave ‘requires the Court to only grant leave where the appeal has a “real” as opposed to a “fanciful” chance of success’. This submission misdescribes their Honours’ observations. On the question of discretion, their Honours stated that ‘the Court may only grant leave where the appeal has a “real” as opposed to a “fanciful” chance of success’.[11]
[10][2015] VSCA 47, [12] (‘Kennedy’).
[11]Ibid (emphasis added).
Nevertheless, it was the applicant’s primary submission that, in deciding whether to grant leave to appeal, the Court should consider only whether there are real prospects of success. Given that this submission is directly contrary to clear authority as I will explain, it is perhaps unsurprising that the applicant advanced different submissions in reply. She submitted, in reliance on observations made by Daly AsJ in Davey v Dessco Pty Ltd,[12] that discretionary factors such as substantial injustice ‘may be considered as part of the Court’s residual discretion to refuse leave’ and that the Court may consider any number of discretionary factors as it sees fit in determining whether to grant leave to appeal.
[12][2018] VSC 720.
However, the applicant also contended that, if a matter was to ‘evidence sufficiently strong prospects of success’ a court might elect not to consider additional discretionary factors. The applicant sought to emphasise the proposition that discretionary factors may be considered, but were not required to be considered in relation to the question of leave. It was submitted that, where an appeal has at least reasonable and not low prospects of success, discretionary factors should not influence the Court to refuse leave to appeal and do not need to be considered.
The applicant contested the respondents’ submission that the Court should approach the question of leave to appeal by first considering all discretionary factors. It was submitted that that approach was not supported by the authorities. Instead it was submitted that the authorities establish that, where there are real prospects of success, but those prospects are low or weak, discretionary factors may justify a refusal of a grant of leave to appeal. Discretionary factors are not however to be considered to the exclusion of the threshold test of whether there are real prospects of success. It was submitted that, even if the Court was first to consider discretionary factors, the refusal of leave could not be undertaken without a consideration of whether the appeal has a real prospect of success, being the only required consideration of the Court as a threshold factor in the decision to grant leave.
As she later sought to develop in her submissions, the applicant contended that there were strong prospects of success in the proposed appeal. In reliance upon Chopra v Department of Education and Training,[13] it was submitted that, where such strong prospects of success are accepted, the Court may be satisfied that the ‘overriding consideration in determining an application for leave to appeal under s 148’ has been met, this being ‘the justice of the case as it appears to the Court’.
Consideration
[13][2019] VSC 488 (‘Chopra’).
The applicant’s submissions in relation to the consideration of discretionary factors in the context of an application for leave to appeal do not accurately reflect the guiding statements of principle by the Court of Appeal.
In Molonglo Group (Australia) Pty Ltd v Cahill, the Court stated as follows:[14]
Even if this Court is satisfied that an appeal has a real prospect of success, it may nevertheless refuse to grant leave in the exercise of its residual discretion,[15] such as when no substantial injustice will be done if the decision at first instance stands, or the order sought to be appealed against is one of practice and procedure.[16] The question of leave may sometimes be approached by considering, first, whether discretionary considerations exist which justify a refusal of leave, regardless of an applicant’s prospects of success.[17] Where discretionary considerations exist but by themselves are insufficient to justify a refusal of leave, refusal may nevertheless be warranted where those discretionary considerations arise in the context of an appeal that has low, albeit real, prospects of success.[18]
[14]Molonglo Group (Australia) Pty Ltd v Cahill [2018] VSCA 147, [96] (emphasis added) (‘Molonglo’).
[15]Kennedy (n 10) [5], [14].
[16]Kennedy (n 10) [14]; Muto v Shepparton City Council [2018] VSCA 73, [90]; Bensons Funds Management Pty Ltd v Body In Balance Chiropractic Pty Ltd [2015] VSCA 198, [7]–[9].
[17]Bodycorp Repairers Pty Ltd v GDG Legal Pty Ltd [2018] VSCA 32, [18] (‘Bodycorp’).
[18]Ibid.
The applicant’s submissions are contrary to the emphasised sentence in this extract. In the final sentence, the Court of Appeal appears to go on and deal with the particular situation where the discretionary considerations alone are insufficient to justify a refusal of leave; in that circumstance refusal may nevertheless be warranted where the appeal has low, albeit real, prospects of success.
One of the authorities cited by the Court of Appeal in the above extract from Molonglo is the judgment of the Court of Appeal’s in Bodycorp Repairers Pty Ltd v GDG Legal Pty Ltd.[19] In that matter, the Court of Appeal stated as follows in relation to the requirement in s 14C of the Supreme Court Act 1986 that leave to appeal only be granted where the appeal has ‘a real prospect of success’:[20]
… This is a necessary condition for the granting of leave to appeal, but it will not always be sufficient to warrant the granting of leave.[21] The Court retains a discretion whether to grant leave despite being satisfied that an appeal has a real prospect of success.[22]
The existence of that discretion is indicated by the use of the word “may” in s 14C itself. Leave can be granted only where a real prospect of success has been established. But leave may be refused whether or not an appeal has a real prospect of success.[23] It follows that the leave question may sometimes be approached by considering first whether there are discretionary considerations justifying the refusal of leave, irrespective of the proposed appeal’s prospect of success. For example, it is exceptional to grant leave to appeal from a costs order.[24] In other cases, the discretionary considerations may by themselves not be sufficient to lead to a refusal of leave, but if the prospect of success is low (albeit “real”), this may in combination with the discretionary considerations warrant a refusal of leave.
While the old distinction between interlocutory and final orders no longer exists, the principles which underlay the former requirement for leave whenever a party sought to appeal an interlocutory order continue to be potentially relevant. In particular, it is most important for the proper administration of justice that this Court keep a “tight rein” upon interference with interlocutory orders at first instance, given the potential consequences of a failure to do so in terms of delay and increased cost, and given the potential for applications in relation to interlocutory orders to become a means whereby discretionary judgments in the trial division are in effect transferred to the Court of Appeal.[25] That is especially so where, as here, there has already been a rehearing de novo of a decision made by a judicial registrar of this Court.
[19]Ibid.
[20]Ibid [17]–[19].
[21]Kennedy (n 10) [14].
[22]Ibid [5]. See also Northern Health v Kuipers [2015] VSCA 172 [11].
[23]Burgoyne Real Estate Pty Ltd v Dutt [2017] VSCA 372 [65]–[68].
[24]24 Hour Fitness Pty Ltd v W&B Investment Group Pty Ltd [2015] VSCA 216 [53].
[25]RCR Energy Pty Ltd v WTE Co-Generation Pty Ltd [2017] VSCA 50 [74]–[77].
Both Molonglo and Bodycorp were referred to by Kyrou and McLeish JJA in Cargill Australia Ltd v Viterra Malt Pty Ltd in the following extract:[26]
[26] Cargill Australia Ltd v Viterra Malt Pty Ltd [2018] VSCA 260,[110]–[113] (‘Cargill’).
Section 14C of the Supreme Court Act 1986 provides that “The Court of Appeal may grant an application for leave to appeal … only if it is satisfied that the appeal has a real prospect of success”. This means that the Court may grant leave only where the appeal has a “real” as opposed to a “fanciful” chance of success.[27] The Court has a residual discretion to refuse leave, even in those cases where the appeal has a real prospect of success. By way of example, there may be cases where no substantial injustice will be done if the decision stands, especially when the appeal is from an order as to practice and procedure.[28]
[27]Kennedy (n 10) [12] (Whelan and Ferguson JJA).
[28]Kennedy (n 10) [14].
There is no separate requirement under s 14C that “substantial injustice” be established if the decision sought to be appealed were to stand. The distinction is between those appeals whose prospects are real and those whose prospects are fanciful.[29] At the same time, the concept of substantial injustice may be useful in determining whether the residual discretion should be exercised. Observations regarding substantial injustice made by this Court in Swan Hill Chemicals Pty Ltd v MA & J Tripodi Pty Ltd[30] must be understood in the light of the requirements of s 14C as explained above.[31]
This Court held in Molonglo Group (Australia) Pty Ltd v Cahill as follows:
Even if this Court is satisfied that an appeal has a real prospect of success, it may nevertheless refuse to grant leave in the exercise of its residual discretion, such as when no substantial injustice will be done if the decision at first instance stands, or the order sought to be appealed against is one of practice and procedure. The question of leave may sometimes be approached by considering, first, whether discretionary considerations exist which justify a refusal of leave, regardless of an applicant’s prospects of success. Where discretionary considerations exist but by themselves are insufficient to justify a refusal of leave, refusal may nevertheless be warranted where those discretionary considerations arise in the context of an appeal that has low, albeit real, prospects of success.[32]
The fact that an order in respect of which leave to appeal is sought is an interlocutory order regarding a matter of practice and procedure is a significant consideration bearing upon the exercise of the residual discretion. In Bodycorp Repairers Pty Ltd v GDG Legal Pty Ltd, this Court set out the governing principles as follows:
While the old distinction between interlocutory and final orders no longer exists, the principles which underlay the former requirement for leave whenever a party sought to appeal an interlocutory order continue to be potentially relevant. In particular, it is most important for the proper administration of justice that this Court keep a ‘tight rein’ upon interference with interlocutory orders at first instance, given the potential consequences of a failure to do so in terms of delay and increased cost, and given the potential for applications in relation to interlocutory orders to become a means whereby discretionary judgments in the trial division are in effect transferred to the Court of Appeal. That is especially so where, as here, there has already been a rehearing de novo of a decision made by a judicial registrar of this Court.[33]
[29]Kennedy (n 10) [13].
[30][2016] VSCA 264, [21]–[22] (Santamaria JA and Riordan AJA).
[31]See also Smith v JZ Lee Interiors Pty Ltd [2017] VSCA 65 [4], [10] (Osborn JA, with Tate JA agreeing).
[32]Molonglo (n 14) [96] (citations omitted) (Maxwell ACJ, Whelan and Kyrou JJA).
[33]Bodycorp (n 17) [19] (citations omitted) (Ferguson CJ, Whelan and McLeish JJA).
In Cargill, the application for leave to appeal concerned an interlocutory order made in the course of a trial by which internal legal counsel for one of the parties to the case was granted access to the opposing parties’ confidential documents. The majority considered that, although the order concerned a matter of practice and procedure, the sensitivity of the confidential documents carried with it potential for significant harm if confidentiality was lost so as to take the case out of the ordinary class of matters involving practice and procedure. For that reason, the majority determined that it was not a case where the residual discretion ‘should be exercised without first determining whether or not the application for leave to appeal has a real prospect of success’.[34]
[34]Cargill (n 26) [116].
Contrary to the submissions advanced on behalf of the applicant, the above authorities clearly establish that it is open to the Court in considering the question of leave to appeal to first address discretionary factors which may be relevant to the grant of leave to appeal and for the Court to do so regardless of an assessment of the applicant’s prospects of success. The applicant’s submission that, if the Court was first to consider discretionary factors, the refusal of leave could not be undertaken without a consideration of whether the appeal has a real prospect of success, is likewise inconsistent with the statements of principle to which I have referred.
The applicant’s reliance upon Chopra is misplaced and ignores important aspects of Richards J’s reasoning. Her Honour identified that satisfaction of there being a real prospect of success does not dictate that leave must be granted.[35] Her Honour referred to a number of other considerations which may bear on whether leave to appeal should be granted in a particular case.[36] Her Honour then referred to the overriding consideration in the determination of an application for leave to appeal as being the justice of the case as it appears to the Court. Her Honour decided that she must refuse leave to appeal because the applicant had no real prospect of success,[37] but indicated that she would have refused leave to appeal even if she was satisfied that the applicant had a real prospect of success on a question of law of some importance.[38] This was because her Honour considered the proposed appeal to be pointless[39] and because:[40]
… the proposed appeal is against procedural orders made by the Tribunal that did not finally determine Dr Chopra’s application for review. Ordinarily, a proceeding before the Tribunal should not be fragmented by appeals against procedural directions or interlocutory orders. There would be no injustice to either party in refusing leave to appeal from the procedural orders made by Senior Member Proctor, in circumstances where the Tribunal is yet to hear the merits of Dr Chopra’s application for review.
[35]Chopra (n 13) [23].
[36]These included the importance of the question of law in respect of which leave is sought; whether the proposed appeal would be futile or of limited practical impact in the circumstances of the case; whether the claimed error of law made any difference to the order made by the Tribunal; and whether the order is a final order or merely procedural.
[37]Chopra (n 13) [25].
[38]Ibid.
[39]Chopra (n 13) [27].
[40]Chopra (n 13) [26].
I will now consider the respondents’ primary submission that, by reason of four particular discretionary considerations and their cumulative effect, the Court should refuse leave to appeal regardless of the applicant’s prospects of success on any of the five grounds of appeal.
First, the respondents emphasised the interlocutory and procedural nature of the orders the subject of the proposed appeal and as orders which dealt with discretionary issues of discovery in a proceeding before a tribunal, as distinct from a court. None of the substantive issues raised by the applicant in her claim in the Tribunal had yet been considered and determined. The respondents relied on the observations by the Court of Appeal in Bodycorp referred to by Kyrou and McLeish JJA in Cargill to which I have already referred that ‘it is most important for the proper administration of justice that this Court keep a “tight rein” upon the interference with interlocutory orders at first instance’.[41]
[41]Bodycorp (n 17) [19] (citations omitted) (Ferguson CJ, Whelan and McLeish JJA), quoted in Cargill (n 26) [113].
In response, the applicant argued that the respondents’ submissions placed undue weight on the orders being interlocutory where s 148 makes no such definitive distinction between interlocutory and final orders and where interlocutory orders are appealable under the VCAT Act. The fact that the order is interlocutory was ‘simply one of a number of discretionary factors that may be considered’ and that, where an interlocutory order discloses significant errors of law and jurisdictional error, as is said to be in the present case, leave to appeal ought to be granted.
While the fact that the orders the subject of the proposed appeal are interlocutory is of itself not determinative of the Court’s discretion to grant leave, the applicant’s attempt to deprecate the significance of this consideration must be rejected. In Cargill, Kyrou and McLeish JJA stated that ‘[t] he fact that an order in respect of which leave to appeal is sought is an interlocutory order regarding a matter of practice and procedure is a significant consideration bearing upon the exercise of the residual discretion’.[42] In the circumstances of this case and in light of the nature of the orders the subject of the proposed appeal, the interlocutory and procedural nature of the orders is a matter of significance which weighs against the exercise of the discretion to grant leave to appeal.
[42]Cargill (n 26) [113]. See also Bodycorp (n 17) [19].
The respondents next contended that the proposed appeal would be of limited practical impact in the context of the litigation. Although the applicant claimed that a number of ‘litigation steps’ were ‘contingent on resolution of the discovery dispute’, the respondents submitted that the reality was that this contingency had been created by the applicant bringing the present application. It was submitted that all of the identified litigation steps could have and should have been attended to by the applicant on the basis of what the Tribunal had ordered should be produced, together with what the respondents committed to produce.
The applicant contested these submissions and relied upon evidence given by her solicitor in support of her application. The solicitor deposed that the documents requested under discovery were required by the applicant in order to prepare for the final hearing. The solicitor stated that ‘not only will the requested documents be relevant evidence to be tendered’, but certain ‘litigation steps’ were contingent on resolution of the discovery dispute. Those steps were said to include the following:
(a) The need to finalise a witness statement in reply in relation to the witness statement of Sharon Dunlop filed by the respondents. That statement apparently relates to the applicant’s claim for economic loss and responds to evidence to be given a remuneration expert engaged by the applicant. The applicant’s solicitor deposes that the applicant had requested several categories of documents on the basis of their relevance to the Dunlop statement. It is said that the provision of the documents requested is necessary to adequately respond to the Dunlop statement. The same general complaint is made in relation to the respondents’ ‘other witnesses’.
(b) The need for the remuneration expert engaged by the applicant to provide a supplementary report in reply to the Dunlop statement after the applicant finalises her evidence in reply.
(c) The need for the applicant to ‘consider her particulars of loss, in light of documents provided during the discovery process’ and the possibility that the documents produced in discovery may affect the applicant’s claim for economic loss and the evidence to be given by the remuneration expert she proposes to call to give evidence.
(d) The possibility that the ‘documents provided during the discovery process will warrant a further amendment’ to the applicant’s amended particulars of claim.
The applicant’s solicitor also deposed that the categories of documents for discovery which the Tribunal dismissed on the grounds of relevance were relevant to ‘resolving competing factual claims and assertions which underpin the case, and/or are relevant because they support, and are necessary for the purpose of proving elements of, the [a]pplicant’s case’. The solicitor stated that those documents would only be in the hands of the respondents and not the applicant and accordingly the applicant’s case would be prejudiced if such documents were not provided to the applicant.
It is apparent that there are various steps in the litigation before the Tribunal that the applicant’s legal representatives consider are contingent upon, or will be affected by, what the applicant refers to as the ‘resolution of the discovery dispute’. The Tribunal had however adopted a staged approach to the resolution of the discovery dispute. The respondents are correct in submitting that, in substance, it is the applicant who, by this application, has derailed the resolution of that dispute.
In truth, the applicant’s real complaint about the outstanding ‘litigation steps’ said to be contingent on the resolution of the discovery dispute is that there are a number of steps the applicant’s legal advisers wish to take in preparing their client’s evidentiary case for hearing which they consider are dependent upon, or will be assisted by, obtaining orders for discovery which they were unsuccessful in obtaining from the Tribunal. Because the applicant was unable to obtain from the Tribunal discovery of all or some of the classes of document sought, the applicant’s legal representatives are not able to prepare their client’s evidentiary case as they would have preferred. Such an outcome is however unsurprising where contested issues of relevance have required a ruling by the relevant court or tribunal. In such a situation, a disappointed litigant has no right or entitlement to insist that the litigation proceed as if the ruling was never made.
The third factor by reference to which the respondents submitted that leave should be refused is that the questions posed in the notice of appeal are not said to raise any issue of public or general importance.
In response, the applicant correctly submitted that the allegation of breach of procedural fairness (question 1 of the notice of appeal) raises issues of the public interest, in addition to those which arise between the parties.
More generally, the applicant also submitted that consistent and certain guidelines in relation to the Tribunal’s discovery or ‘document production processes’ and the scope of the test for relevance in the Tribunal in relation to discovery, is a matter of public interest or public or general importance. I reject this submission. The same could be said about many disputes about relevance and discovery which are the subject of a ruling by the Tribunal and subsequently an application for leave to appeal.
Except in relation to question 1 of the appeal which raises the question of whether there has been a denial of procedural fairness, I otherwise accept the submissions of the respondent as to the absence of any issue of public or general importance in the application for leave.
The fourth consideration identified by the respondents by reference to which it was submitted that leave should be refused was that the Court’s jurisdiction invoked by the applicant in this case is ‘supervisory not substitutionary’.[43] The respondents also relied upon Bell J’s statement in Republic of Turkey v Mackie Pty Ltd that:[44]
Despite the impression that may be created by the term “appeal”, the determination of the appeal [under s 148(1)] is an exercise of the court’s original jurisdiction in relation to the determination of questions of law, one that is “in the nature of judicial review”,[45] not one in the nature of appellate or merits review.
[43]Rugolino v Howard [2010] VSC 590 (Bell J).
[44][2019] VSC 103, [19].
[45]Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72, 79 [15] (Gaudron, Gummow, Hayne and Callinan JJ) (‘Roy Morgan’); see also Osland (2010) 241 CLR 320, 351 [271] (French CJ, Gummow and Bell JJ).
On this point, the respondents focussed their attention on questions 3 and 4 in the notice of appeal. Question 3 is posed as to whether the Member erred ‘in making conclusions that were not open to her’. Question 4 asks whether, if the Member identified the correct test for relevance, she ‘erred in misapplying the test’.
In respect of both questions, it was submitted that the applicant was inviting the Court to re-hear all of the argument which was heard by the Tribunal on the question of relevance of the numerous documents the subject of the discovery dispute before the Tribunal. It was also submitted to be significant that those orders were made in a context where, as stated by Judge Bowman in State of Victoria v Bradto Pty Ltd,[46] there is ‘no discovery process as such’ in the context of the Tribunal’s jurisdiction.[47]
[46][2005] VCAT 2261.
[47]Ibid [4].
In response, the applicant submitted that questions 3 and 4 were correctly formulated as errors of law and that the rehearing of the arguments presented to the Tribunal is necessitated by the nature of those errors. It was submitted that, merely because the discovery dispute must be re-determined because of the error below, does not cause such a re-determination to be a merits review.
The applicant’s submissions are without merit. Notwithstanding the terms in which questions 3 and 4 are formulated, it is clear that, in substance, the applicant is inviting the Court to substitute its view for the Tribunal’s view. This is evident from the grounds relied upon by the applicant. As to question 3, the bases of the claim that the Member erred in making conclusions that were not open to her include that it was not open to the Member to ‘characterise’ certain documents in particular ways ‘in light of the evidence and submissions’. Another basis includes a complaint about the Member’s preference of the respondents’ submissions over the applicant’s. The position is likewise in respect of question 4. The ground relied on in respect of that question in substance asks the Court to substitute its view for the Member’s about the relevance of particular categories of documents to particular paragraphs in the applicant’s amended points of claim.
The considerations to which I have referred, considered collectively, comfortably satisfy me that, regardless of the applicant’s prospects of success in relation to questions 3 and 4, leave to appeal in respect of those questions should be refused.
The same discretionary considerations also weigh significantly against the grant of leave in respect of questions 2 and 5. However, as I explain below, leave to appeal must in any event be refused in relation to those questions as I do not consider that the applicant has a real prospect of success in relation to them. After addressing questions 2 and 5, I will then consider question 1.
Ground 2 - wrong legal test for relevance
Ground 2 is that the Member erred in identifying and applying the wrong legal test by: (a) unduly narrowing the test for relevance in relation to a discovery request; (b) rejecting the approach ‘espoused’ in Trade Practices Commission v CC (New South Wales) Pty Ltd (No 4)[48]; and/or (c) failing to have regard to Zhu v Yingle Culture Exchange (Australia) Pty Ltd ACN 113 089 759 (in liq).[49]
Applicant’s submissions
[48](1995) 58 FCR 426 (‘Trade Practices’).
[49][2010] NSWSC 107 (‘Zhu’).
In the Reasons, the learned Member stated that, to make an order for discovery of a category of documents, that category must relate to an issue that is identifiable from the pleadings, even if remotely so.[50] The applicant submitted that this was the wrong test. As a consequence, it was submitted that the Member’s decisions on each of the categories must be quashed and re-determined.
[50]Reasons, [20].
The applicant submitted that the correct test for discovery was as set out by Lindgren J in Trade Practices:[51]
It is well established that it is not necessary in order for a document to relate to such a matter that it be admissible in evidence in relation to that matter, and that it suffices that the document may lead to a train of inquiry which may advance the case of one party or damage that of his adversary.
This approach was said to be supported by several decisions of this Court[52] and the Federal Court.[53]
[51]Trade Practices (n 48) 436.
[52]Computershare Ltd v Perpetual Registrars [2000] VSC 139, [21] (Warren J); Melbourne City Investments Pty Ltd v Leighton Holdings Limited [2014] VSC 7, [46]–[47] (Judd J).
[53]Australian Competition and Consumer Commission v Cornerstone Investment Aust Pty Ltd (No 2) [2017] FCA 393, [4] (Gleeson J); Rinehart v Rinehart (No 2) [2015] FCA 339, [39]; Metland Pty Ltd v Restoration Clinics of Australia Pty Ltd [1997] FCA 545 (Goldberg J).
The applicant also submitted that the preponderance of authority from trial judges of this Court favoured a more expansive view of relevance for the purpose of discovery. In Omar Property Pty Ltd & Others v Amcor Flexibles (Port Melbourne) Pty Ltd,[54] Mukhtar AsJ stated that ‘in borderline cases, Courts tend in the interests of justice to make judgments that prefer, or err on the side of, disclosure’.[55] In Commonwealth Bank of Australia v White (No 5), Byrne J said that:[56]
For the purposes of discovery, a generous concept of relevance applies. It is sufficient that the documents relate to any question raised in the pleadings. This includes, not only documents which are directly relevant to such question, but also documents “which may well lead to a relevant enquiry”.
[54][2019] VSC 446.
[55]Ibid [7].
[56]Commonwealth Bank of Australia v White (No 5) [2002] VSC 566, [9].
The applicant submitted that this expansive view of relevance was further supported by Garde J’s observation in Metricon Homes Pty Ltd v Sawyer that s 97 of the VCAT Act required the Tribunal to ‘facilitate the production of documents and the calling of evidence when sought by a party that will contribute towards the resolution of the substantial merits of the case.’[57]
[57][2013] VSC 518, [48].
The applicant submitted that, in identifying the applicable test, the Member ignored her submission about the observations by Rothman J in Zhu[58] regarding evidence that relates to the likelihood that an event occurred.[59] The applicant submitted that the Member declined to make an order for discovery of documents ‘related to an issue which was not raised in the pleadings, but only in the affidavits of the witnesses.’
Consideration
[58]See fn 49 above.
[59]Zhu (n 49) [11]. His Honour’s observations are set out in [80] below which I address further below in relation to ground 1.
The applicant’s submissions rest on the false premise that there is a particular legal test for discovery to be applied by the Tribunal in every case.
The Tribunal is not bound by ‘any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures’.[60] There is no suggestion that, in this matter, the Tribunal has adopted the rules of practice and procedure which govern discovery in court proceedings. Rather, in discharging its duty to ‘act fairly and according to the substantial merits of the case in all proceedings’,[61] the Tribunal ‘may inform itself on any matter as it sees fit’.[62] It ‘may give directions at any time … and do whatever is necessary for the expeditious or fair hearing and determination of a proceeding’.[63]
[60]VCAT Act (n 3) s 98(1)(b).
[61]VCAT Act (n 3) s 97.
[62]VCAT Act (n 3) s 98(1)(c).
[63]VCAT Act (n 3) s 80(1).
It is a matter for the Tribunal to determine in each proceeding, having regard to these and other provisions of the VCAT Act, whether the parties are to be subject to an obligation to make discovery of documents and, if they are, to tailor the extent and nature of that obligation so that it is appropriate and adapted to the case at hand..
It follows that the approach adopted by the Tribunal in relation to discovery was one which was open to it. The complaint in ground 2 does not have a real prospect of success. Leave to appeal is refused.
Ground 5 – Insufficiency of reasons
Ground 5 is that the Member erred in failing to provide sufficient reasons. The Reasons were contended to be inadequate because they failed to disclose the Member’s path of reasoning.
Applicant’s submissions
The applicant submitted that the inadequacy in the Member’s Reasons was particularly evident with respect to the Reasons concerning appeal grounds 3 and 4. In particular, it was argued that the Reasons failed to explain why documents relating to certain categories[64] were not relevant. The applicant submitted that it was unclear as to why the Member found that these categories of documents were not relevant, ‘given that they squarely [fell] within her yardstick’.
[64]The applicant referred to documents which were said to be within the following categories, amongst others: future economic loss and damages; the applicant’s flexible workplace arrangements; the applicant’s claim of victimisation; the broader work practices of all ANZ employees; and the work practices extended to specific ANZ employees within a vulnerable class.
Unlike s 117 of the VCAT Act in relation to final orders, there is no provision in the VCAT Act which requires the Tribunal to give adequate reasons for interlocutory orders. However, the applicant submitted that the Member was still required to give adequate reasons because of an implication in s 97 of the VCAT Act and/or because of the operation of the common law in relation to s 148 of the VCAT Act.
Section 97 requires that ‘The Tribunal must act fairly and according to the substantial merits of the case in all proceedings.’ The applicant relied on Mukhtar AsJ’s observation in Khanna v Kulathayendra,[65] that this section requires procedural fairness in the form of the provision of reasons for any order made.
[65][2012] VSC 250, [36].
Section 148 of the VCAT Act provides the mechanism for appealing on a question of law from an order of the Tribunal. The applicant submitted that I should follow Harper J’s comments at [19] and [20] of his Honour’s decision in Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue.[66] It was said that, in those paragraphs, his Honour held that, ‘[a]t common law, a body from whom an appeal lies to a court must give reasons for its decisions’, and that a failure to provide adequate reasons constituted an error of law. The applicant also relied on the following comment made by Cavanough J in XYZ v State Trustees Ltd:[67]
A failure by a tribunal to address in its reasons a submission which is worthy of consideration and is seriously advanced to the tribunal may in itself amount to an error of law for the purpose of a provision like s 148 of the VCAT Act.
Consideration
[66]Roy Morgan (n 45).
[67](2006) 25 VAR 402, 419 [42]. The footnote to this passage noted that no argument to that effect was put to his Honour.
Ground 5 does not have any real prospect of success because it is directly contrary to at least three judgments of single judges of this Court.
Most recently, Richards J in Chopra succinctly summarised the positon as follows:[68]
Where a tribunal is not required to give reasons, the provision of reasons that do not reveal its path of reasoning does not constitute an error of law.
[68]Chopra (n 13) [107], citations omitted. The other two authorities are: Supple v Building Appeals Board [2015] VSC 83, [72]; Kheir v Robertson & Ors [2019] VSC 422, [78].
Chopra and the authorities cited by Richards J all post-date Mukhtar AsJ’s judgment in Khanna v Kulathayendra. I also note that his Honour observations were at a high degree of generality and did not specifically concern the obligation to give reasons. In the circumstances, it is unnecessary for me to further consider the applicant’s submissions in relation to Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue. Leave to appeal in respect of ground 5 must be refused.
Ground 1 – natural justice
Ground 1 is that the Member erred in failing to consider the applicant’s written submissions dated 23 September 2019 (the applicant’s reply submissions).
Submissions
At the hearing before the Tribunal on 16 September 2019, the respondents filed written submissions and additional documents without prior notice. Orders were made that the applicant file any written submission in reply by 23 September 2019. The applicant’s reply submissions were filed on that date. The orders the subject of the proposed appeal were made on 25 September 2019. It was submitted that the Member did not however consider the applicant’s reply submissions and as such committed a breach of natural justice.
The claimed lack of consideration by the Member of the applicant’s reply submissions is said to be evidenced by two aspects of the Member’s Reasons:
(a) At [8], the Member described the material which she had taken into account as including submissions made by the respondents, as well as additional documents from the applicant provided prior to and/or at the hearing. The paragraph does not however refer to the applicant’s reply submissions.
(b) At [14] the Member states: ‘In the hearing, I requested that [the applicant’s solicitor] provide me with authority that discovery could relate to a line of enquiry solely about the credibility of a witness. He agreed to provide me with such authority after the hearing but has not’. It was submitted that the requested authority and an explanation of its application to the dispute were contained within the applicant’s reply submissions.
The respondent submitted that the first of these contentions drawn from [8] of the Reasons reflected a selective and incomplete reading of the paragraph. In full, the paragraph is as follows:
The Applicant directed the Tribunal to the Applicant’s amended points of claim, together with 10 witness statements (three of which were written by the Applicant). The Applicant also provided the Tribunal with the correspondence exchanged between the parties in relation to discovery. The Respondents made submissions. I carefully took into account all written materials and all arguments advanced to me at hearing in coming to my determination.
The respondents submitted that the final sentence of this paragraph is a clear statement by the Member of having taken into account all arguments which had been put by the parties, whether in written form or orally. They also emphasised that the Member was not obliged to specifically identify and address in its reasons all of the written material which was before it and drew attention to the Member’s statement earlier in the Reasons that she did ‘not intend to repeat the legal arguments and submissions that were presented to me other than in summary’.[69]
[69]Reasons, [7].
As to the applicant’s reliance on [14] of the Reasons, the respondents focused on the Member’s request of the applicant’s representative to be provided with authority for the proposition that discovery could relate to a line of inquiry solely about the credibility of a witness. The respondents argued that Zhu was the only authority referred to in the applicant’s reply submissions which related to this issue, but it in fact stood for the contrary proposition, as is evident from the first sentence in the following paragraph from Zhu which was extracted in the applicant’s reply submissions:[70]
…[w]hile the Court may not order the discovery of documents that relate solely to the credibility of witnesses, documents may be discovered that relate to the likelihood that the facts to which a witness is attesting, or is likely to attest, did not occur. In that situation, the credibility of the witness may be a by-product of the relevance of the document to other issues.
The respondents submitted that it was therefore unsurprising that the Member did not advert to this issue, or this authority, in the Reasons.
[70]Zhu (n 49) [11]
More generally, the respondents submitted that the applicant’s submissions based on [8] and [14] of the Reasons were an impermissible attempt to construe the Reasons of an administrative body ‘minutely and finely with an eye keenly attuned to the perception of error’.[71]
Consideration
[71]Secretary to the Department of Justice and Regulation v OUX [2018] VSCA 178, [36], citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.
A consideration of [8] of the Reasons raises a doubt as to whether the learned Member took into account the applicant’s reply submissions before making the orders the subject of the application for leave to appeal. Having referred to the fact that the respondents made submissions, it is surprising that no reference is made to the applicant’s reply submissions. As I further address below, those submissions were substantial and dealt with a matter of some importance to the controversy which the Member was required to resolve.
Further, contrary to the respondents’ submission, the final sentence in [8] of the Reasons does not unambiguously resolve the doubt as to whether the applicant’s reply submissions were taken into account. On one reading of the sentence, being that which was urged upon me by the applicant, it might be construed as conveying that the only written material and arguments considered were those advanced ‘at hearing’ which, having regard to the earlier parts of the paragraphs, could be understood as extending to include materials provided by the parties before, but not after, the hearing.
However, putting aside [14] of the Reasons and considering the Reasons without an eye keenly attuned to the perception of error, these doubts in respect of [8] of the Reasons are an insufficient basis for me to infer on the balance of probabilities that the Tribunal failed to consider the applicant’s reply submissions before making the orders the subject of this application.
This conclusion is however altered by a consideration of [14] of the Reasons. In order to assess the significance of this paragraph, it is necessary to consider it in context by reference to aspects of the hearing before the Tribunal on 16 September 2019, as well as relevant parts of the applicant’s submissions.
As I have set out earlier in these reasons, by the time the discovery dispute between the parties was heard by the Member on 16 September 2019, 113 categories of documents remained in dispute, or were the subject of outstanding requests for instructions. The large majority of these objections to discovery were on the ground of, or included the ground of, relevance.
The course of the hearing on Monday 16 September 2019 was affected by complaints made by the applicant’s representative about the late provision[72] by the respondents of various documents, including an affidavit and written submissions. The Tribunal made orders that day including that the applicant provide reply submissions by 23 September 2019. In the course of the hearing on 16 September 2019, the learned Member indicated that there was ‘quite a sensitivity around timing ‘ as she worked Mondays to Wednesdays and was going to be on leave from Wednesday 25 September until 28 October 2019.
[72]On the previous business day, 13 September 2019.
The Tribunal nonetheless received oral submissions on 16 September 2019 in relation to the respondents’ objections to discovery, including in respect of relevance. Amongst other things, the applicant’s representative submitted that the test for relevance was that there had to be a ‘forensic purpose related either to the pleadings or to testing the veracity, credibility, weight to be given’ to material relied upon by any of the parties. This submission attracted the Member’s interest, as indicated by the following exchange between the Member and the applicant’s representative during the hearing (emphasis added):
MEMBER: Earlier, you said that the authorities relied on by the respondent don’t detract from the tests, and you say they related to the forensic purpose either in relation to pleading or veracity, credibility or weight of materials. In respect of the second part – veracity, credibility, weight – do you have a specific authority that says that a forensic purpose has to go to that? Because something I read this morning while refreshing myself about discovery, said that discovery isn’t to go to credit, and the only exception where discovery would go to credit would be similar fact evidence, noting that there’s sometimes greying of those things. If you like, you could submit those after the hearing.
MR HARMER: Yes, perhaps I will take that on notice. I think our authorities do cover that and - - -
MEMBER: The text I was looking at was quite old, but I was also looking online at Williams, but I think that that statement about discovery not going to credit came from the text, which was 1984, so - - -
MR HARMER: May it please. I appreciate that question, and if it’s all right, I will take that on notice, along with responding to the other materials from the respondent we’ve just seen today.
In compliance with the orders made on 16 September 2019, the applicant’s reply submissions were filed on 23 September 2019. They relevantly included the following paragraphs (emphasis added):
2.41The Applicant further submits that the numerous objections asserted by the Respondents on the grounds that the requested category of documents purely goes to the question of credibility, misconceives the purpose for which the Applicant seeks discovery.
2.42The documents sought by the Applicant are not sought merely to diminish the credibility of the relevant ANZ witness, they go squarely to those disputed facts which are attested by that witness. In these circumstances, the Applicant’s request for discovery falls squarely within the exception in Zhu v Yingle Culture Exchange (Australia) Pty Ltd ACN 113 089 759 (in liq) [2010] NSWSC 107, where Rothman J comments (at [11]):
While the Court may not order the discovery of documents that relate solely to the credibility of witnesses, documents may be discovered that relate to the likelihood that the facts to which a witness is attesting or is likely to attest, did not occur. In that situation, the credibility of the witness may be a by-product of the relevance of the documents to other issues.
2.43The Applicant has requested categories of discovery in response to specific assertions raised by the Respondents’ witness statements, and which are relevant to clarifying and tested a disputed set of facts. As such, these categories of discovery should be accepted as relevant.
The central proposition advanced by the applicant on ground 1 is that [14] of the Reasons makes no sense in light of these submissions. It is appropriate to set out [14] in full:
Relying on various authorities, Mr Harmer, counsel for the Applicant, urged me to allow discovery on any category of documents which was capable of leading to a ‘line of enquiry’. Mr Harmer referred to the case being one of ‘straws on a back’ and the need for comparative materials relating to like employees to establish indirect discrimination. He stated that the test for allowing discovery was that there be a forensic purpose that would either relate to the pleading or relate to the veracity, credibility or weight of materials. He argued that a legitimate line of enquiry would be the relative credibility of a witness or witness statement. In the hearing, I requested that Mr Harmer provide me with authority that discovery could relate to a line of enquiry solely about the credibility of a witness. He agreed to provide me with such authority after the hearing but has not.
The first observation which may be made about this paragraph in light of the extract from the hearing referred to above is that, contrary to what the learned Member recorded, her request at the hearing was not for an authority which established that discovery could relate to a line of enquiry solely about the credibility of a witness; consistent with the applicant’s reply submissions, she in fact asked to be provided with an authority which established that a legitimate forensic purpose for discovery was ‘veracity, credibility, weight’.
However, the key point which makes good the applicant’s procedural fairness claim is that, considered objectively in the context of the hearing on 16 September 2019, it is not possible to reconcile the three final sentences of [14] of the Reasons with those parts of the applicant’s reply submissions to which I have referred above. In those paragraphs of her submissions, the applicant in substance submitted that she did not seek discovery ‘purely’ for the purpose of diminishing the credibility of a witness – such a view ‘misconceive[d]’ her purpose. Instead, discovery of particular categories was sought for the purpose of ‘clarifying and testing a disputed set of facts’. Zhu was advanced in support of this claim, which referred to the credibility of a witness possibly being ‘a by-product of the relevance of the documents to other issues’.
Tellingly, [14] of the Reasons does not address the applicant’s stated purpose in seeking discovery of ‘clarifying and testing a disputed set of facts’. Instead, the final sentences of the paragraph reveal a concern with the applicant’s discovery request as relating to a line of enquiry solely about the credibility of a witness. However, the applicant’s reply submissions had made clear that such a concern misconceived her purpose.
This reveals a sharp discontinuity between the applicant’s stated purpose in respect of discovery and the recording by the Tribunal of its understanding of her purpose. Not only does it arise in relation to an important aspect of the discovery dispute, it concerns a specific matter about which the Tribunal sought further assistance from the applicant’s representative at the hearing on 16 September 2019, at which time the learned Member demonstrated a clear understanding of the oral submissions then advanced on behalf of the applicant. Given these matters, it is difficult to conceive of any rational explanation for the approach adopted by the learned Member in [14] of the Reasons, save that she was unaware of, or did not consider, the applicant’s reply submissions.
I infer from this analysis and the matters to which I have referred that it is more likely than not that, in making the orders the subject of this application, the learned Member failed to consider the applicant’s reply submissions. I am fortified in this conclusion by the doubts to which I have referred in [82]–[83] above.
By not considering the applicant’s reply submissions, the Member erred by failing to provide the applicant with procedural fairness. A denial of procedural fairness is an error of law. I accordingly grant leave to appeal in respect of ground 1 and allow the appeal on that ground.
Disposition
It follows from my conclusion in respect of ground 1 that order 3 made by the Tribunal on 25 September 2019 must be set aside.
The applicant submitted that orders 1 and 2 of the Tribunal should also be set aside. Although it is well established that a failure to afford procedural fairness in the Tribunal is capable of amounting to jurisdictional error,[73] it was for the applicant to demonstrate that the failure to afford procedural fairness was ‘material’, in that it could have made a difference to the decisions given effect by orders 1 and 2.[74] The applicant has not demonstrated this. Indeed, it seems obvious that the Tribunal would have made the same decision whether or not it had read the applicant’s reply submissions or not. I therefore do not consider that the Member’s decisions given effect to by orders 1 and 2 were made outside of jurisdiction.
[73]Morris v Riverwild Management Pty Ltd (2011) 38 VR 103, 111 [30] (Nettle and Redlich JJA).
[74]Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, 134–5 [30] (Kiefel CJ, Gageler and Keane JJ).
Even if, contrary to my view, the decisions given effect to by orders 1 and 2 did involve jurisdictional error, I would have declined to set aside those orders in any event. As the High Court has stated in an administrative decision-making context:[75]
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
There was no submission on behalf of the applicant that she had suffered any practical injustice as a result of orders 1 and 2. In the circumstances, it would also be futile to remit those questions to the Tribunal to be decided again.[76]
[75]Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, 14 [37] (Gleeson CJ), endorsed in Condon v Pompano Pty Ltd (2013) 252 CLR 38, 99 [156] (Hayne, Crennan, Kiefel and Bell JJ).
[76]Stead v State Government Insurance Commission (1986) 161 CLR 141, 145, cited in Neav v Monash University [2010] VSC 563, [102] (John Dixon J).
It was submitted by the applicant that the discovery controversy the subject of order be determined by myself or, alternatively, be remitted back to the Tribunal, differently constituted to that which made the orders. Both these alternatives must be rejected. It is not for this Court to stand in the shoes of the Tribunal and undertake the evaluative task inherent to the discovery controversy. It is also unnecessary that the matter be remitted to another Tribunal member. The relevant principles were set out by Kyrou J (as he then was) in Vegco Pty Ltd v Gibbons:[77]
If orders are made by this Court as a matter of course requiring decisions to be remade by a differently constituted primary decision-maker, this may have serious resourcing implications for primary decision-makers and add to the costs and delays of the decision-making process. For the Court to be persuaded to order remittal to a differently constituted primary decision-maker, good reason for doing so, based on established principles, must be shown by the party seeking such an order. The guiding principle is that remittal will be to a differently constituted primary decision-maker where there is some feature of the conduct or reasons for decision which would render it unfair to the successful party or give the appearance of unfairness to that party (whether arising from strongly expressed views on key issues, adverse findings on the credit of witnesses, apprehended bias or otherwise) if the matter were remitted to the same decision-maker or where it would be impracticable for the same decision maker to re-determine the matter.
[77][2008] VSC 363, [33].
There is no feature of the conduct of the proceeding before the Tribunal or the Member’s Reasons that would make remittal to the Member unfair to the applicant. To the contrary, it is apparent that the Member has a detailed understanding of what has become a complex proceeding and that she has, with respect, applied herself diligently to its progress to hearing. It is therefore appropriate that the matter be re-heard by the Member.
Within seven days, the parties are to submit any proposed minute of consent orders in respect of the costs of this application or, in the absence of consent, any short submissions on costs limited to four pages.
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