Bashour v Australia and New Zealand Banking Group Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 00971

KATHERINE BASHOUR	Applicant
v
AUSTRALIA AND NEW ZEALAND BANKING GROUP PTY LTD & ORS (according to the attached Schedule)	Respondents

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	4 October 2021
DATE OF JUDGMENT:	20 May 2022
CASE MAY BE CITED AS:	Bashour v Australia and New Zealand Banking Group Pty Ltd
MEDIUM NEUTRAL CITATION:	[2022] VSC 252

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ADMINISTRATIVE LAW – Application for leave to appeal from a decision of the Victorian Civil and Administrative Tribunal (‘VCAT’) – Section 148 of the Victorian Civil and Administrative Tribunal Act1998 (Vic) – VCAT refused the applicant’s application for discovery of certain categories of documents – Whether VCAT’s refusal of the application for discovery caused the applicant substantial injustice to justify the grant of leave to appeal –Matsoukatidou v Yarra Ranges Council (2017) 51 VR 624 – Whether VCAT’s refusal of the application for discovery materially affected the applicant’s ability to have a fair hearing – Section 24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’) – Ambridge Investments Pty Ltd v Baker (No 3) [2010] VSC 545 - Volunteer Fire Brigades Victoria v CFA(Discovery ruling) [2016] VSC 573 – Held that certain categories of documents in the discovery application were relevant to the applicant’s claims in the substantive proceeding in VCAT – Held that VCAT’s refusal of the application for discovery with respect to the relevant categories of documents could materially affect the applicant’s ability to have a fair hearing – Leave to appeal granted for grounds relating to s 24 of the Charter – Exceptional circumstances warrant the review of the merits of VCAT’s decision - Appeal allowed – Held that the decision of VCAT be set aside – Held that the Court will make orders that VCAT could have made pursuant to s 148(7)(b) of the VCAT Act – Leave to appeal denied for other grounds.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Dr I R L Freckelton AO QC with Ms S Omeri	Harmers Workplace Lawyers
For the Respondents	Ms R M Doyle SC with Ms C Dowsett	Seyfarth Shaw Australia

HER HONOUR:

Introduction

These reasons concern an application for leave to appeal from a decision of the Victorian Civil and Administrative Tribunal (‘VCAT’) to refuse an application by the applicant in this proceeding, Ms Katherine Bashour, that the respondents in this proceeding and the VCAT proceeding (‘ANZ’) provide discovery of certain categories of documents, on the grounds that the documents concerned were not relevant to any issue raised by the pleadings in the underlying dispute between the parties (‘VCAT proceeding’).

This proceeding has arisen in the course of a dispute between the parties concerning Ms Bashour’s claims about her treatment while employed by ANZ, and the circumstances in which her employment with ANZ ceased in October 2014. The second to fourth respondents were at all relevant times senior employees of ANZ.[1] In the VCAT proceeding, Ms Bashour alleges that ANZ unlawfully discriminated against her on the basis of her caring responsibilities, her pregnancy, and her disabilities, and as such, engaged in unlawful discrimination contrary to the provisions of the Equal Opportunity Act 2010 (Vic) (‘EOA’).
[1]In these reasons, I shall refer to the respondents collectively as ANZ, except where the context requires otherwise.

Section 148 of the Victorian Civil and Administrative Tribunal Act1998 (Vic) (‘VCAT Act’) provides that a party to a proceeding in VCAT may apply to this Court for leave to appeal against an order of VCAT on a question of law. The test for leave to appeal will be discussed later in these reasons, but for present purposes, it is fair to say that it would be unusual for this Court to grant leave to appeal on a matter of practice and procedure such as discovery. However, Ms Bashour alleges that, in failing to grant the discovery request, VCAT has infringed upon her right to a fair hearing, as required by s 24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’), and has acted inconsistently with the objectives of the EOA.

The questions of law and grounds of appeal identified by Ms Bashour will be discussed in more detail later in these reasons. However, the critical issue in this proceeding is whether, in rejecting the bulk of Ms Bashour’s application for discovery (‘discovery request’), the exercise of the discretion by the VCAT Member hearing the dispute concerning the discovery request (‘Member’) has miscarried, and, if so, whether the Member’s wrongful refusal of the discovery request, which sought discovery of what Ms Bashour says are critically relevant documents, has caused her substantial injustice which warrants the grant of leave to appeal and upholding the appeal. For the reasons which follow, the Member’s findings with respect to a modest, but not insignificant number of categories of documents in the discovery request are erroneous, and those errors may materially affect the prospects of Ms Bashour having a fair hearing of her claims in the VCAT proceeding, such that the appeal will be allowed in part.

Background

Ms Bashour commenced her employment with ANZ in June 2009. Ms Bashour is a qualified lawyer, but she was employed by ANZ in a managerial role in the Regulatory Change and Policy Team, which, among other things, works to ensure that ANZ’s business units meet their regulatory obligations. In her role as Compliance Manager, Regulatory Change and Policy, she was responsible for reviewing and writing policies and procedures, reporting upon the implementation and operation of those policies and procedures, and dealing with enquiries regarding such matters from other ANZ business units.

During the first years of her employment with ANZ, all seemed to be going well. Ms Bashour enjoyed her work, she had good relationships with her colleagues, and she received positive formal and informal feedback. In November 2010, Ms Bashour took a secondment to a role as the manager of a customer remediation program for customers of ANZ who had been clients of a discredited financial advisory firm, which was a more senior role than her original position, and she anticipated this role would open up further opportunities for career progression within ANZ after its conclusion in 2012.

Ms Bashour went on maternity leave between September 2012 and April 2013 with the birth of her first child. It is not necessary for present purposes to provide a complete narrative of the relevant events as they unfolded after that, but the gravamen of Ms Bashour’s complaint against the ANZ is that, after her return from maternity leave, she was treated less favourably by ANZ. Contrary to her expectations, she was required to return to the position she was in prior to her secondment, she was overlooked for promotion in favour of someone she considered to be less qualified for the role, and her managers were unhappy with what Ms Bashour says was an agreed arrangement for her to work from home four days per week to accommodate her caring responsibilities for her young daughter.

In January 2014, Ms Bashour made a complaint to the Fair Work Commission (‘FWC’) alleging, among other things, that her contract of employment had been unilaterally varied by reason of the revocation by ANZ of her preferred flexible work arrangement. In February 2014, she commenced a proceeding in the Federal Court of Australia (‘Federal Court’) concerning those claims.

During December 2013 and January 2014, Ms Bashour began to experience migraine headaches, and took periods of sick leave on medical advice. In addition to making a complaint to the FWC, Ms Bashour sent emails to each of the second and fourth respondents concerning her grievances, and was referred to Ms Kathryn Turner, a senior employee relations advisor with ANZ, who first spoke with Ms Bashour on 11 March 2014. Issues raised by Ms Bashour during her call with Ms Turner included:

(a) her managers’ attempts to revoke what Ms Bashour said was an agreed flexible work arrangement;

(b) her line manager directing that Ms Bashour provide a medical certificate to prove her fitness to resume work after taking sick leave for approximately five weeks;

(c) her line manager contacting Ms Bashour directly, contrary to the recommendations of her treating general practitioner;

(d) her name being removed from an internal newsletter at the direction of her line manager; and

(e) the hostile and unfriendly manner in which she said she was treated by her managers and her colleagues.

By the time of this discussion, Ms Bashour was in the first trimester of her second pregnancy. Her pregnancy was accompanied by some health complications, which Ms Bashour says were at least partly related to her workplace situation and conflict. Further, by the second trimester of Ms Bashour’s pregnancy, those complications affected her mobility, and were said to have significantly impaired her ability to, among other things, regularly commute to ANZ’s office in Docklands. These issues, along with ongoing disputes regarding her flexible work arrangement, the failure of the employee relations division to take any remedial action in relation to her complaints, and ANZ’s direction to her to undergo a medical examination by an obstetrician, led to her commencing her planned parental leave early. Her refusal to attend the medical examination triggered disciplinary processes in July 2014, with ANZ informing Ms Bashour that one of the potential outcomes of this process could be the termination of her employment with ANZ.

In August 2014, Ms Bashour sought an interlocutory injunction in the Federal Circuit Court of Australia restraining ANZ from terminating her employment and from making formal directions to her while she was on parental leave. The application was first returnable on 7 August 2014. On that day, ANZ applied successfully to uplift the proceeding to the Federal Court.

Following the hearing on 7 August 2014, The Age published a news article which was broadly sympathetic to Ms Bashour’s position. ANZ subsequently issued a media release which contradicted some of Ms Bashour’s allegations, and led to the modification of the original news article. The dispute between Ms Bashour and ANZ was the subject of further news articles, social media posts, and internal communications within ANZ in August 2014 and later that year.

Ms Bashour’s second child was born on 23 August 2014. Less than two weeks later, at a directions hearing in the Federal Court, the pending hearing of Ms Bashour’s substantive claims against ANZ was adjourned to a later date in her absence.

On 1 October 2014, Ms Bashour resigned, alleging that she had been constructively dismissed by ANZ by reason of the conduct of ANZ’s officers and employees. On that day, Ms Bashour discontinued the proceeding she had commenced in the Federal Circuit Court, because, as she says, the relief she sought in that proceeding was no longer required given that her child had been born, and given that she was no longer employed with ANZ.

Procedural history

On 20 October 2014, Ms Bashour commenced the VCAT proceeding, alleging that ANZ had contravened various provisions of the EOA. On 20 March 2015, following an application by ANZ, VCAT made orders striking out the VCAT proceeding and referring the subject matter of the VCAT proceeding to the Federal Court.

On 21 August 2015, Ms Bashour commenced a proceeding in this Court seeking to quash VCAT’s orders referring the VCAT proceeding to the Federal Court, on the basis that VCAT did not have the powers to confer its jurisdiction under the EOA upon the Federal Court. On 9 November 2016, McDonald J made orders quashing the orders made by VCAT,[2] and the VCAT proceeding was reinstated.
[2]Bashour v VCAT (No 2) [2016] VSC 666.

In April 2017, ANZ filed a number of witness statements in response to Ms Bashour’s claims, which she says exacerbated the distress caused to her by ANZ’s conduct, given that the version of events put forward by ANZ’s witnesses was at substantial variance with her version of events. A final hearing scheduled to commence on 29 May 2017 was vacated on the grounds of Ms Bashour’s poor health, and there was little progress of any substance in the VCAT proceeding until early 2019.

On 13 February 2019 Ms Bashour filed her amended points of claim in the VCAT proceeding (‘points of claim’), alleging that she suffered loss and damage by reason of ANZ’s alleged contraventions of the EOA. These alleged contraventions included:

(a) failing to make reasonable adjustments for her disabilities;[3]
[3]The disabilities referred to by Ms Bashour in her points of claim included both physical and psychiatric conditions and impairments.

(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 detriment because she made complaints about the alleged discriminatory conduct of ANZ.

Ms Bashour’s allegations that ANZ contravened the EOA arose from the following conduct of ANZ:

(a) a request first made on 28 February 2014 that Ms Bashour provide medical evidence of her fitness to work;

(b) a decision dated 20 March 2014 in relation to Ms Bashour’s flexible work arrangement;

(c) a decision dated 21 May 2014 not to allow Ms Bashour to continue to work from home;

(d) a direction requiring Ms Bashour to attend a medical appointment on 15 July 2014, and an associated decision not to postpone that appointment;

(e) a decision not to extend the time for Ms Bashour to respond to a letter concerning her failure to attend the medical appointment on 15 July 2014;

(f) the alleged constructive termination of her employment on 1 October 2014; and

(g) the detriment said to have been suffered by Ms Bashour by reason of her complaints to the FWC and the Federal Court, and the publicity concerning those complaints. Ms Bashour says that she was victimised by ANZ for taking legal action to seek a remedy for her grievances, contrary to s 103 of the EOA.

Further, Ms Bashour contended that each of the second to fourth respondents contravened s 105 of the EOA (the accessional liability provision) by failing to intervene to prevent, stop or remedy the conduct said by Ms Bashour to amount to unlawful discrimination.

Under the heading “Loss and Damage” in the points of claim, Ms Bashour claimed loss and damage, as follows:

a)Offence, pain, suffering, hurt, humiliation, distress, anxiety and dislocation of life;

b)        Damage to personal and professional reputation;
c)        Damage to health, including but not limited to:
i.        exacerbation of pelvic instability;
ii.        chronic migraines;
iii.       insomnia; and
iv.trauma induced major depressive disorder with coexisting anxiety spectrum symptoms and trauma induced symptoms (including exacerbation of this condition);

d) Loss of income, bonuses and other benefits as an employee of ANZ;
e) Loss of career and opportunity for promotion and advancement at ANZ;

f) Legal expenses; and
g) Medical expenses.

Ms Bashour claimed the following relief:

(a) A public apology from the Respondents;
(b)Damages for psychiatric injury, pain, suffering, hurt, humiliation, distress, anxiety, damage to personal and professional reputation and dislocation of life;

(c) Damages for past and future economic loss;
(d) Aggravated damages;
(e)Declarations that the Respondents have engaged in unlawful discrimination in contravention of the Equal Opportunity Act 2010 (Vic);
(f)Training be imposed on senior managers of ANZ as to the handling of complaints and making reasonable adjustments for pregnant employees;
(g)A donation by ANZ to the International Women’s Development Agency;
(h)Interest;
(i)Costs; and
(g) Interest on Costs.

On 15 March 2019, ANZ filed a detailed defence to the points of claim. While a number of uncontroversial factual matters were admitted, ANZ largely denied all of the critical factual allegations made by Ms Bashour in the points of claim. Further, it is apparent from the witness statement of Ms Sharron Dunlop, ANZ’s internal remuneration expert (‘Dunlop statement’), that ANZ contests Ms Bashour’s claim for economic loss, largely on the basis that the career trajectory assumed by Ms Bashour’s remuneration expert when calculating her past and future economic loss was unduly optimistic, given the limited number of positions at the senior executive level of ANZ, the large number of potential candidates for those positions, and the skills, experience and seniority required by applicants for those positions.

Accordingly, it seems to me that the critical issues in the VCAT proceeding are as follows:

(a) whether ANZ engaged in direct discrimination against Ms Bashour by reason of her caring responsibilities and her disabilities by failing to make reasonable adjustments for her caring responsibilities and her disabilities, such as by facilitating a more flexible working arrangement, and by subjecting her to unreasonable demands and directives;

(b) whether ANZ engaged in indirect discrimination by imposing a requirement which was more difficult for someone with Ms Bashour’s attributes to comply with;

(c) whether ANZ subjected Ms Bashour to any detriment by reason of the complaint she made to the FWC and the proceeding she issued in the Federal Court;

(d) whether ANZ constructively dismissed Ms Bashour;

(e) whether any unlawful conduct caused Ms Bashour loss and damage, including, but not limited to, past and future economic loss; and

(f) in calculating any past and future economic loss, the impact of any unlawful conduct on the part of ANZ upon Ms Bashour’s career trajectory, which requires a comparison of how Ms Bashour’s career might have reasonably been expected to progress had it not been for the alleged unlawful conduct.

The discovery request

On 19 February 2019, Deputy President Nihill made a series of directions in the VCAT proceeding (including the exchange of discoverable documents) leading up to a 12‑day hearing scheduled to commence on 9 September 2019. On 8 July 2019, after disputes had emerged regarding, among other things, the production of Ms Bashour’s medical records to ANZ, this hearing date was vacated and refixed for 18 November 2019, and later, 27 November 2019.

Between July and September 2019, Ms Bashour sent a series of discovery requests to ANZ. Between them, these requests sought discovery of 124 categories of documents, or in some cases, individual documents. ANZ objected to the production of most of the categories of documents sought by the discovery request, primarily on the ground of relevance, but also in some instances on the basis that requiring production of the documents concerned would be oppressive (‘oppression claim’).

The documents sought by the discovery request were said by Ms Bashour to be necessary to enable the finalisation of her witness statements regarding both liability and quantum issues, including the expert evidence in support of her claim for economic loss. Ms Bashour also contended that the documents sought by her in the discovery request might necessitate further amendments to her points of claim, and were necessary to “resolving competing factual claims and assertions which underpin the case”.

The dispute regarding the discovery request was first heard by the Member on 16 September 2019 (‘September 2019 hearing’), just over two months prior to the scheduled hearing date. With the agreement of the parties, the Member heard the dispute on the basis that she would first rule on ANZ’s objections as to relevance, with any remaining objections, such as the oppression claim, to be determined at a later date. During the course of the September 2019 hearing, ANZ filed written submissions, apparently without prior notice to Ms Bashour. Accordingly, the Member made orders which provided Ms Bashour with an opportunity to file further written submissions after the September 2019 hearing.

On 23 September 2019, Ms Bashour’s solicitors emailed to VCAT a copy of her further written submissions (’23 September submissions’). In summary, the 23 September submissions, among other things:

(a) noted that a substantial amount of material previously exchanged between the parties in the Federal Court proceeding could not be used by Ms Bashour in the VCAT proceeding by reason of the Harman undertaking;[4]
[4]Being the implied undertaking by parties to a legal proceeding to not use documents obtained in connection with that proceeding for any other purpose. I am not sure whether any steps have been taken by Ms Bashour’s legal team to procure a release from the Harman undertaking from the Federal Court, but one might expect that this step would not be difficult to undertake, particularly if any application was not opposed by ANZ.

(b) said that in any event, Ms Bashour’s claims in the VCAT proceeding concerned claims of direct and indirect discrimination and victimisation, such that the factual inquiry in the VCAT proceeding was broader than the inquiry in the Federal Court proceeding, and the claim of indirect discrimination made relevant ANZ’s policies, practices, and requirements;

(c) said that many of the documents and the categories of documents sought in the discovery request arose out of the Dunlop statement, and that the documents concerned were in the exclusive possession of ANZ, stating that:

[t]he Dunlop evidence makes bare assertions without providing the supporting material, or seeks to discredit [Ms Bashour’s] achievements, experiences and skills for the purpose of asserting that [Ms Bashour] would not have had the career prospects contended by [Ms Bashour’s] remuneration expert. [Ms Bashour] is entitled to material relevant and responsive to those assertions for the purpose of responding to same.

(d) submitted that the discovery request sought documents which “are relevant to resolving competing factual claims and assertions which underpin the case, and/or are relevant because they damage [ANZ’s] case, and/or support [Ms Bashour’s] case”, and therefore the discovery request did not amount to “fishing”;

(e) rejected ANZ’s submission that the necessary information could be obtained from ANZ’s witnesses during the course of cross-examination, saying that Ms Bashour should have the benefit of objective evidence to test competing factual claims, and that the forensic significance of the documents sought by the discovery request is not limited to testing the credibility of witnesses; and

(f) said that the documents sought by the discovery request fall squarely within the exception referred to by Rothman J in Zhu v Yingle Culture Exchange (Aust) Pty Ltd (in liq),[5] as follows:

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 document to other issues.[6]

[5][2010] NSWSC 107 (‘Zhu’).

[6]Ibid [11].

On 25 September 2019, the Member made orders (’25 September orders’) which, among other things, denied the bulk of the discovery request. A significant issue in the September 2019 hearing was whether the documents sought by Ms Bashour were directly relevant to issues raised by the points of claim, or merely went to the credibility of witnesses who would be called to give evidence by ANZ, or minor disputes of fact between the witnesses to be called by the parties. In her reasons of 4 November 2019 (‘November 2019 reasons’), the Member referred to a “yard‑stick” against which Ms Bashour’s discovery application would be assessed. In that regard, the Member stated as follows:

Taking into account: the late stage of proceedings, the vast amount of materials already exchanged, the vast amount of materials requested by the Applicant in discovery and the need for there to be some specificity and finality in the proceedings, I considered that there must be a level of proximity to an issue in the pleadings.
The Applicant’s amended points of claim are detailed and extensive and the Respondents’ pleadings reply to them. Accordingly, the ‘yard-stick’ I used to determine in relation to each individual category in the request for discovery was whether it:
a.related to an issue that is identifiable from the pleadings, even if only remotely so (if so, I would allow discovery); or
b.related to an issue which was not raised in the pleadings, but only in the affidavits of the witnesses (if so, I would not allow discovery).

I found that the vast majority of the categories in the Applicant’s request fell into category (b), meaning they are peripheral to the central issues and cannot be entertained.[7]

[7]Bashour v Australia & New Zealand Banking Group Ltd (Human Rights) [2019] VCAT 1731, [19]-[21].

However, on their face, the November 2019 reasons indicated that the Member had not considered Ms Bashour’s submissions filed on 23 September 2019.[8]
[8]This administrative oversight was later confirmed by the Member.

On 25 November 2019, Ms Bashour issued an application in this Court for leave to appeal the 25 September orders (‘first appeal’). Her notice of appeal advanced the following grounds of review:

(a) the Member erred in failing to consider Ms Bashour’s submissions dated 23 September 2019, such that there was a denial of natural justice;

(b) the Member erred in identifying and applying the wrong legal test in regard to relevance;

(c) the Member erred in reaching conclusions that were not open to her;

(d) in the alternative, if the Member correctly identified the correct legal test in relation to relevance, she erred in misapplying the test; and

(e) the Member failed to provide adequate reasons.

On 5 August 2020,[9] Moore J made orders refusing leave in relation to the second to fifth grounds of appeal enumerated above, largely on the basis that they raised no issue of general importance and had no real prospects of success, but granted leave to appeal and allowed the appeal with respect to the first ground, on the basis that Ms Bashour had been denied procedural fairness by reason of VCAT’s failure to consider the 23 September submissions. He set aside paragraph 3 of the 25 September orders, and remitted the dispute concerning the discovery request back to the Member for rehearing.
[9]Bashour v ANZ [2020] VSC 478.

The January 2021 hearing

Prior to the remitted hearing on 28 January 2021 (‘January 2021 hearing’), the parties exchanged further correspondence regarding the discovery request. Between them, the solicitors for the parties compiled what they described as the “consolidated discovery table” (‘CDT’). The CDT is a 50‑page table in landscape format, which enumerated each of the categories of documents in the discovery request, and was a modified version of a table earlier provided to the Member. The CDT highlighted the categories of documents the Member had already ruled as being relevant in the November 2019 reasons, and included, with respect to the remaining categories of documents, the basis of ANZ’s objection to the remaining categories in a short form, Ms Bashour’s responses, which sought to explain why the categories of documents objected to by ANZ were relevant to an issue in the VCAT proceeding, and some additional responses by ANZ.[10]
[10]At the hearing of the application for leave to appeal, senior counsel for Ms Bashour suggested that there was a possibility that the Member had not had regard to the final version of the CDT, being the CDT which included the responses from ANZ in blue text. However, having reviewed the transcript of the January 2021 hearing, I note that the Member said that she had downloaded this document to her computer. In any event, I cannot see how any failure on the part of the Member to review the last iteration of the CDT would have disadvantaged Ms Bashour, as the only additional material in the final version of the CDT was the response of ANZ to the submissions advanced by Ms Bashour in relation to each outstanding category in the discovery request, such that it is difficult to see how the additional material in the final version of the CDT would have advanced Ms Bashour’s position at the January 2021 hearing.

From my review of the CDT, the categories of documents sought by Ms Bashour and rejected by the Member can be grouped as follows:

(a) documents concerning, or communications involving Ms Bashour’s immediate superior at ANZ between November 2013 and 1 October 2014, Ms Liana Edelman (‘Edelman documents’), including, but not limited to, the following matters:

(i) her performance and remuneration;

(ii) her promotion to the position of Senior Manager – Regulatory Change and Policy;[11]
[11]Ms Bashour unsuccessfully applied for this position, and says that her qualifications and experience were superior to those of Ms Edelman. However, ANZ’s conduct in appointing Ms Edelman was not said in the points of claim to be conduct amounting to direct discrimination.

(iii) her remote working arrangements between March and June 2014;

(iv) emails sent to and from her in February 2014 regarding mental health training; and

(v) an email sent by Ms Bashour to Ms Edelman in mid 2014 expressing condolences.

(b) documents concerning other named employees of ANZ (‘other employee specific documents’), including, but not limited to:

(i)       their performance, remuneration, and career progression;
(ii)      their health and medical circumstances;
(iii)     payments of parental allowances;
(iv)     their flexible working/remote working arrangements; and
(v)complaints about discrimination and/or career progression by named ANZ employees;

(c) documents recording complaints made by other ANZ employees (not specifically identified) within a two year period regarding discrimination and other employment related issues (‘complaint documents’);

(d) documents concerning Ms Bashour’s employment with ANZ (‘personal documents’), including:

(i) the creation, funding and filling of her position in 2009;
(ii)her secondment to the customer remediation program referred to in paragraph 6 of these reasons, including her remuneration during the period of her secondment;
(iv)the work performed, or required to be performed by Ms Bashour’s team; and
(v)a new article published in December 2014 regarding the dispute between Ms Bashour and ANZ; and

(e) other sundry documents (’other documents’), including:

(i)changes to policy documents regarding flexible work arrangements;
(ii)internal job applications for Groups 1 and 2 (that is, senior leadership) positions at ANZ between 2014 and 2019;
(iii)the role mandate for the Chief Compliance Officer as at June 2019;
(iv)the resumes of current members of the ANZ Group Executive Committee; and
(v)the number of employees at ANZ, broken down by classification.[12]

[12]ANZ employees fall within six broad classifications, with a number of levels within each classification. Group 1 employees include, in effect, the senior executive team. Ms Bashour, at the time of her departure from ANZ, was employed in a Group 4.1 role, although during her secondment between 2010 and 2012, she acted in a Group 3 role.

The court book in this proceeding included a transcript of the January 2021 hearing. Judging from its contents and its length, the hearing ran for approximately half a day. In addition to the discovery dispute, there was some discussion between the Member and the legal representatives of the parties regarding the timetabling of the outstanding interlocutory steps (with the Member preferring ANZ’s more incremental approach), and the adjustments necessary to be made by reason of Ms Bashour’s precarious health.

As for the discovery request, what transpired during the course of the January 2021 hearing can be summarised as follows:

(a) Mr Harmer, the solicitor representing Ms Bashour, submitted that given that the 25 September orders were made in the context of a looming final hearing date, which no longer applied, there was a material change in circumstances which warranted the Member revisiting the relatively strict limits she had imposed upon discovery in the 25 September orders, including her “yard‑stick” (see paragraph 30 of these reasons);

(b) Mr Harmer referred to the need to obtain documents from ANZ concerning Ms Bashour’s claim for loss and damage, based upon the loss of her career and her opportunities for promotion and advancement at ANZ, and the potentially large quantum of her claim;

(c) Mr Harmer referred to the need to obtain data regarding the career paths, progression, and remuneration of “comparator” employees at ANZ, and referred to the decision of the Full Federal Court in Wong v Sklavos,[13] which upheld subpoenas targeted at obtaining evidence regarding the remuneration of comparable peers for the purpose of calculating future economic loss, noting that such evidence was solely within the control of ANZ;
[13](2014) 319 ALR 378.

(d) Mr Harmer referred to Ms Bashour’s claim of indirect discrimination, and the need for Ms Bashour to establish that a “facially neutral” requirement of ANZ would impose an undue burden upon a cohort of ANZ employees with a particular attribute. He submitted that the denial of the discovery request runs the risk of a finding after a final hearing that Ms Bashour had failed to adduce sufficient evidence to prove her case with respect to this limb of her claim;

(e) Mr Harmer submitted that the resolution of certain factual disputes between Ms Bashour and the witnesses called by ANZ, who were said to have “deliberately undermined and demeaned the capabilities or performance of [Ms Bashour]”, may be relevant to any claim by Ms Bashour for aggravated damages,[14] and are therefore relevant to issues other than the credibility of witnesses; and

(f) Mr Harmer submitted that, had the Member had available to her the 23 September submissions at the relevant time, she would have appreciated that the documents sought in the discovery request were either relevant to an issue raised by the pleadings, or to resolving factual disputes between witnesses, and therefore were properly discoverable.

[14]I will assume for present purposes that aggravated damages are available for breaches of the EOA, as no submission to the contrary was made.

In response, counsel for ANZ submitted, in summary, as follows:

(a) the scope of the remitter following the first appeal was significantly more confined than suggested by Mr Harmer;

(b) there was nothing in the November 2019 reasons which indicated that the Member’s approach to the discovery request was materially influenced by the then pending hearing date;

(c) Moore J had rejected Ms Bashour’s contention that the yard-stick imposed an unduly narrow test for relevance, and found that the approach adopted by the Member was open to her, such that there was no need for the Member to revisit the yard-stick;

(d) in the 25 September orders, the Member had already granted discovery of documents relevant to Ms Bashour’s claim for future economic loss; and

(e) reviewing the discovery request in the light of the 23 September submissions would not lead the Member to alter her original view regarding the relevance of any particular category of documents in the discovery request.

By way of reply, Mr Harmer submitted, in summary, as follows:

(a) ANZ’s contention that the pending hearing date did not influence the Member’s approach to the discovery request was inconsistent with the November 2019 reasons;

(b) the change in circumstances warranted the Member not only revisiting the question of whether any particular document or category of documents fell within the yard-stick, but also the breadth of the yard-stick itself;

(c) up to date information regarding remuneration levels for senior employees was needed in order to enable Ms Bashour to make good her claim for future economic loss, and to test Ms Dunlop’s assertion that ANZ employees are generally not permitted to skip a level in their career progression; and

(d) Ms Bashour could not fairly cross‑examine ANZ’s witnesses without prior access to documents relevant to factual disputes between them and Ms Bashour which were solely within the possession of ANZ.

On 4 March 2021 the Member made orders with respect to the discovery request (‘4 March orders’), accompanied by written reasons.[15] The 4 March orders confirmed paragraph 3 of the 25 September orders, and made timetabling orders for the hearing of the oppression claim. The effect of the 4 March orders was that the Member maintained the same position as she had following the September 2019 hearing: that is, considering the 23 September submissions had not altered her view with respect to the relevance of any of the categories in the discovery request.
[15]Bashour v Australia & New Zealand Banking Group Ltd (Human Rights) [2021] VCAT 160 (‘March 2021 reasons’).

The Member did not accept that the vacation of the final hearing date after the September 2019 hearing amounted to a material change in circumstances which warranted “the rehearing of the full gamut of the application”.[16] Rather, the Member confined herself to revisiting the discovery request having regard to the 23 September submissions and the submissions made at the January 2021 hearing, and assessing whether she should maintain the “yard-stick”, or form a different view as to whether the documents sought by the discovery request fell within the “yard-stick”.
[16]Ibid [13].

The March 2021 reasons provided, in part, as follows:

On appeal, Justice Moore heard argument that the test I applied in making my orders on 25 September 2019 was too narrow. He decided that the approach I adopted relation [sic] to the relevance of categories of documents requested in discovery was one which was open to me and did not grant leave to appeal in that regard. He also heard argument that if I identified the correct legal test for relevance I erred in misapplying the test. [Ms Bashour] argued that a large number of the categories were held by me to be not relevant, notwithstanding they fell within my ‘yardstick.’ Again, His Honour did not grant leave to appeal in that regard.
In the rehearing of this matter, [Ms Bashour] urged me to extend the ‘yardstick’ and to reconsider certain categories of documents where I held them to be not relevant, notwithstanding they fell within my ‘yardstick’. I consider that this runs contrary to the findings of Justice Moore.[17]

[17]Ibid [17]-[18].

And further:

I have fully reviewed [Ms Bashour’s] submissions dated 23 September 2019, the arguments of counsel for [Ms Bashour] at the hearings on 16 September 2019 and 28 January 2021 and all submissions made by [ANZ] and all of the materials provided for both interlocutory hearings. I have considered whether, had I had the benefit of [Ms Bashour’s] submissions of 23 September 2019, I would have adopted a broader test and whether I should do so now.
Those submissions make it clear that [Ms Bashour’s] purpose in respect of certain documents was wider than the question of credibility of particular witnesses but that ‘they go squarely to those disputed facts which are attested by that witness.’ [Ms Bashour’s] citation of the decision in Zhu makes it clear that [Ms Bashour] had requested categories of documents that are relevant to clarifying and testing disputed sets of facts. The submissions also dispute the categorisation that [ANZ] applied to [Ms Bashour’s] purpose in seeking various categories.
I acknowledge that in my earlier statement of reasons I stated that [Ms Bashour] had not responded to a request I had made in the hearing and that I misstated that [Ms Bashour’s] purpose in being one of testing the credibility of witnesses. Had I had the benefit of seeing the submissions, I would have realised both statements to be incorrect.

I consider that the decisions of Forrest J. cited in paragraphs 17 and 18[18] of my decision remain more persuasive in formulating a test for relevance in this case and more directly relevant to the decision at hand than the decision in Zhu or the other authorities cited to me by [Ms Bashour]. I note that the decision in Zhu relates to different proceedings in a jurisdiction where discovery rules apply. I accept that I could order discovery of documents that relate to the likelihood that the facts to which a witness is attesting, or is likely to attest, did or did not occur, but noting Moore J’s decision on appeal, I am not required to do so.
I have reviewed each of the over 120 categories of documents[19] requested by [Ms Bashour] to see whether the omitted submissions or consideration of the alternative table would alter my view of the relevance of those categories to the proceedings. My conclusion is that [Ms Bashour’s] own reasons for requesting categories of document disclose contests about minor disparities of fact between the affidavits of particular witnesses that are not related to an issue which was raised in the pleadings and I deem them to be irrelevant.
In light of all of the materials presented to me, I am satisfied that Order 3 of my order dated 25 September 2019 is appropriate.[20]
[18]In the November 2019 reasons, the Member made reference to two decisions of J Forrest J of this Court. In Liesfield v SPI Electricity Pty Ltd (Ruling No 1) (2013) 43 VR 493, his Honour stated (at [25]) that “any order concerning discovery should be directed to finding the most efficient, effective and economical management of the discovery exercise, bearing in mind the nature and complexity of the trial”. Further, in Volunteer Fire Brigades Victoria v CFA (Discovery Ruling) [2016] VSC 573,(citations omitted), he stated at [34], as follows, in relation to the need to set some boundaries around the discovery process: “However, a fair trial is not a perfect trial. It is, rather, the best trial that a court can provide to the parties within reason and in proportion to the issues in dispute and the court’s resources. Accordingly, demands for discovery of documents which are peripheral to the central issues cannot be entertained. The Court is obliged to focus on the central issues as best it can be determined at this point in the litigation.” Both of these statements have been referred to on numerous occasions in later decisions of this Court. Accordingly, the Member’s reference to and reliance upon these statements is unremarkable.
[19]The reference to “over 120 categories of documents” is an error on the part of the Member, but, having regard to the manner in how the dispute regarding the discovery request was heard and documented between September 2019 and January 2021, that error is understandable, and, in my view, had no material impact upon the outcome of the January 2021 hearing.
[20]March 2021 reasons [27]-[32].

The Notice of Appeal

On 1 April 2021, Ms Bashour filed a notice of appeal seeking to set aside paragraph 1 of the 4 March orders. The notice of appeal, omitting those questions of law and grounds of appeal which are no longer pressed by Ms Bashour, identified the questions of law as being whether:

2.The Tribunal improperly considered itself bound by a decision of the Supreme Court of Victoria to refuse leave and, as a result, failed to exercise jurisdiction.
4.The approach of the Tribunal was contrary to the protection of the human rights of [Ms Bashour] under the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Equal Opportunity Act 2010 (Vic).

5. The Tribunal acted contrary to the Wednesbury principles.[21]

[21]While this question of law was not formally abandoned by Ms Bashour, it was only faintly pressed at the hearing of the application for leave to appeal, and I do not propose to address this question of law in these reasons.

Ms Bashour contended that the Member erred in:

3.Concluding that an extension of the Tribunal’s discovery “yardstick”, or reconsideration of what categories of documents fell within the “yardstick” would run “contrary” to the findings of Justice Moore in Bashour v ANZ and Ors [2020] VSC 478.
4.Concluding that [Ms Bashour’s] reasons for requesting categories of documents related to “minor disparities of fact”.
5.Concluding that [Ms Bashour’s] reason for requesting categories of documents did not relate to substantive issues raised in the pleadings.
7.Failing to act in accordance with the objectives of the Equal Opportunity Act 2010 (Vic).
8.Failing to interpret the provisions of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) and the Equal Opportunity Act 2010 (Vic) in a way compatible with the human rights of [Ms Bashour], contrary to section 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter Act’).
9.Denying [Ms Bashour] a Fair Hearing, contrary to section 24 of the Charter Act.
10.Failing to protect the human rights of [Ms Bashour] from discrimination, contrary to section 8 of the Charter Act.
11.Failing to act compatibly with the human rights of [Ms Bashour], contrary to section 38 of the Charter Act.

Grounds 3, 4 and 5 above are said to relate to the second question of law. Grounds 7 to 11 inclusive are said to relate to the fourth question of law, and grounds 4 and 5 are said to relate to the fifth question of law, but these grounds seem to be more relevant to the question of whether the denial of the discovery request has materially impeded Ms Bashour’s ability to have a fair hearing rather than to the question of whether any finding of the Member was reasonably open to her.

Ms Bashour’s grounds of appeal and her submissions raise a number of interesting legal issues, including, by way of example, whether leave to appeal under s 148 of the VCAT Act is required in proceedings where it is asserted that VCAT has contravened the Charter, and whether the objectives of the EOA should inform the conduct of the VCAT proceeding. Ms Bashour also sought to adduce evidence, and has filed lengthy and detailed submissions in support of her contention that, in its management of the interlocutory processes in the VCAT proceeding, VCAT in general, and the Member in particular, have failed to make the necessary adjustments to accommodate her poor health and particular vulnerabilities. However, no relief is sought in relation to these complaints, save that it is contended that, if the appeal is allowed in whole or in part, the further determination of the discovery request should be remitted to a different member of VCAT.

I shall comment upon these issues, along with the test for granting leave to appeal under s 148 of the VCAT Act later in these reasons. However, for the purposes of determining the current application, it is not necessary to go further than making some passing observations regarding the above matters, given that, in my view, there is no material difference between the obligation imposed upon VCAT by s 97 of the VCAT Act to “act fairly and according to the substantial merits of the case in all proceedings”, the obligation imposed upon VCAT by s 98(1) of the VCAT Act to comply with the rules of natural justice, VCAT’s obligations under the common law to afford the parties before it procedural fairness, and the right to a fair hearing acknowledged in s 24(1) of the Charter. While Ms Bashour’s notice of appeal does not refer to s 97 of the VCAT Act, I can presume that any breach of s 24 of the Charter by VCAT would also breach s 97 of the VCAT Act and VCAT’s duty under the common law, which would amount to an appealable error of law. Accordingly, these reasons will focus on the fourth question of law and the fourth, fifth and ninth grounds of review, which together concern the question of whether the Member’s denial of the discovery request has imperilled the ability of Ms Bashour to have a fair hearing, contrary to s 24 of the Charter.

That there is no material difference between VCAT’s statutory and common law obligations to provide the parties before it a fair hearing and the requirements of s 24 of the Charter is supported by the following statement of Bell J in Matsoukatidou v Yarra Ranges Council:[22]

The human right of parties to court or tribunal proceedings to a fair hearing under s 24(1) of the Charter and the common law obligation of the court or tribunal to ensure a fair hearing both give effect to equality before the law and equal access to justice.[23]

[22](2017) 51 VR 624.

[23]Ibid [178]. See also Russell v Yarra Ranges Shire Council [2009] VSC 486 where Kaye J observed (at [42]) that it was unlikely that s 24(1) of the Charter materially added to the obligation imposed upon VCAT to afford parties to proceedings before it natural justice.

While Bell J was concerned with the content of the duty to afford a fair hearing to self‑represented litigants, including, in the case before him, a self‑represented litigant with a learning disability, there seems to be no material difference between the current case and the case before Bell J. Rather, the content of the duty may differ as between self‑represented litigants and represented litigants, but the source of the duty does not in terms alter the content of the duty.

Further, I accept that, in civil litigation, the ability of one party to obtain relevant documents from the other party may be a critical element in ensuring that party has a fair hearing. As observed by Vickery J in Ambridge Investments Pty Ltd v Baker (No 3):[24]

The Victorian Charter of Human Rights by s.24(1) reinforces the common law right of a party to a fair criminal or civil trial. Denial of relevant documents could compromise the exercise of this critically important right and deny justice to an accused or a litigant. If this was to occur, the public interest in furthering the administration of justice could be compromised or negated.[25]

[24][2010] VSC 545.

[25]Ibid [35] (citations omitted). See also Boral Resources (Vic) Pty Ltd v CFMEU [2014] VSC 120, [163].

Similarly, in Metricon Homes Pty Ltd v Sawyer,[26] Garde J found that VCAT was in breach of its obligations under s 97 of the VCAT Act when it failed 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 individual case”.[27]
[26][2013] VSC 518.
[27]Ibid [48].

The statements above indicate that the question of the right of a party before a court or tribunal to a fair hearing can be evaluated prospectively: that is, prior to the final hearing itself, and at the evidence gathering and disclosure stages of a proceeding.

However, the Member’s refusal of the bulk of the categories of documents sought by the discovery request (or any of them) will only impede Ms Bashour’s right to a fair hearing if the refusal of the discovery request materially compromises her ability to adduce relevant and probative evidence before VCAT at the final hearing of the VCAT proceeding. Section 55 of the Evidence Act 2008 (Vic) (‘Evidence Act’) defines relevant evidence as “evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”.[28] In the current case, while VCAT is not a court of pleadings, the nature and the detail of the points of claim and ANZ’s defence indicates that the parties intend that the issues in the VCAT proceeding will be largely defined by the pleadings as they would be in a proceeding in a court of record.
[28]The fact that VCAT is not bound by the Evidence Act does not alter my analysis: after all, it is hardly the object of discovery to facilitate the admission of irrelevant evidence, regardless of the forum in which the hearing takes place.

Further, the requirement of “materiality” is important. If the refusal of the discovery request, or any part of the discovery request, would not materially adversely affect Ms Bashour’s ability to have a fair hearing, then it could hardly be said that any error in the Member’s approach or reasoning could amount to a substantial injustice for the purpose of exercising the discretionary power of the Court to grant leave to appeal. To paraphrase J Forrest J in Volunteer Fire Brigades Victoria v CFA (Discovery ruling),[29] a fair trial does not have to be a perfect trial.[30] That said, his Honour then went on to say that, albeit in the context of a pending trial in this Court, “As long as the document in the possession of a party goes to a real (and not peripheral) issue to be determined at the trial then, absent any proportionality consideration, it is relevant and ought to be discovered”.[31]
[29][2016] VSC 573.
[30]Ibid [34].
[31]Ibid [41]. See also Boral Resources (Vic) Pty Ltd v CFMEU [2014] VSC 120, where Digby J said (at [163]): “the overarching public interest in the administration of justice … requires that parties be given a fair trial on all the relevant and material evidence”.

Accordingly, the need to assess whether the denial of the discovery request results in a real risk that there would be a material impact upon the ability of Ms Bashour to have a fair hearing of the issues in dispute in the VCAT proceeding means that the other questions of law and grounds of appeal advanced by Ms Bashour are subsidiary to the central issue in the current application. By way of illustration, even if the Member had erred in concluding that the task before her in the January 2021 hearing was confined by the reasons of Moore J in the first appeal (which I believe to be the case), there would nevertheless be no grounds for granting leave to appeal if that error had no material impact upon the ability of Ms Bashour to have a fair hearing, because no substantial injustice would flow from any error, given that, as found by Moore J, the approach the Member took to discovery was one that was open to her.

In her submissions, Ms Bashour relied upon the decision of the Australian Capital Territory Supreme Court in Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority (ACT),[32] where Refshauge J considered the principles governing applications for leave to appeal with respect to interlocutory decisions, noting that the approach generally taken to such decisions was to leave them to stand, save where substantial injustice would result if the decision was wrong and leave was refused. However, his Honour observed:

It may be that these principles should be applied more liberally in the light of [the ACT equivalent of s 24 of the Charter] which expresses the right to a fair trial since an error in the interlocutory decision may have the effect of derogating from the fairness of the trial.[33]

[32](2008) 2 ACTLR 44.

[33]Ibid [29].

Later in his reasons, his Honour went on to say as follows:

In construing the provision for leave to appeal, then, an interpretation that is consistent with human rights as far as possible is to be preferred. This was required by s 30(1) of the Human Rights Act as at the date of hearing of this application, though I note that since then it has been amended, on 17 March 2008, to strengthen the requirement for consistency with human rights. I do not need to consider whether the amendment applies to this application. On either provision, the construction of the legislation for leave to appeal to make it consistent with the right to a fair trial would, it seems to me, require that the reference to “substantial injustice” be modified. Something less than a substantial injustice may well result in an unfair trial.
Of course, matters such as delay in or fragmentation of a trial may also affect its fairness and these factors too must be taken into account. It is also clear that the trial has to be fair, not perfect. No trial is likely to pass a test for perfection. It must, however, be positively fair; that is to say, if there was a position where a trial was neither fair nor unfair (conceptually possible, but difficult to see how it could practically exist) that would not suffice, as the trial must be fair.
As no specific argument was addressed to this issue, I do not feel able to formulate a test, including what limits may be appropriate; for example, a minor injustice (if such is possible) may not render a trial unfair and some decisions the subject of challenge may not have any relevant effect on the fairness of the actual trial at all.[34]

[34]Ibid [39]-[41].

However, Refshauge J granted leave to appeal on the basis that the decision before him did not concern a matter of practice and procedure, or a discretionary decision, such that the principles in House v R[35] applied, but involved the proper construction of a statute, and furthermore, the decision concerned effectively determined the substantive rights of the parties. Accordingly, it was not necessary for his Honour to wrestle with the practical implications of applying a test for the grant of leave with respect to interlocutory decisions which applied a less stringent standard than the requirements of “substantial injustice” where the alleged error of law involved a breach or potential breach of the equivalent of s 24 of the Charter.
[35](1936) 55 CLR 499.

In my view, in the absence of any authority directly on point (the remarks of his Honour above being by way of obiter), there is no basis for applying a less stringent standard for applications for leave to appeal merely by reason of s 24 of the Charter. The Charter has been in force for 15 years. During that period, the Court of Appeal has had cause to consider and comment upon the test for granting leave to appeal, including with respect to discretionary decisions concerning practice and procedure, on a number of occasions,[36] and has reinforced the necessity for an applicant for leave to appeal to establish that substantial injustice would follow from a failure to correct any error. Similarly, in the considerable jurisprudence which has emerged since the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University (‘AON’)[37] and the enactment of the Civil Procedure Act 2010 (Vic) (‘CPA’), it has not been suggested, at least to my knowledge, that the imperatives of efficient and proportionate case management, and the need to conserve public and private resources, have any lesser force by reason of s 24 of the Charter, which, in any event, adds little to the common law entitlement of a party before a court or tribunal to a fair hearing.
[36]See Bodycorp Repairers Pty Ltd v GDG Legal Pty Ltd [2018] VSCA 32; Molonglo Group (Australia) Pty Ltd v Cahill [2018] VSCA 147; Cargill Australia Ltd v Viterra Malt Pty Ltd [2018] VSCA 260.
[37](2009) 239 CLR 175.

Therefore, the approach I will take to the current application will be to consider the discovery request through the prism of “substantial injustice”. That is, if the Member, in her rejection of the discovery request, or any part of it, has materially compromised the ability of Ms Bashour to have a fair hearing by denying Ms Bashour access to relevant documents, then it follows that the Member has erred in law in a manner, which, all other things being equal,[38] would justify the grant of leave to appeal. Further, if there are documents sought by the discovery request which are directly relevant to an issue in dispute on the pleadings in the VCAT proceeding, or to Ms Bashour’s claim for economic loss, and there is no other avenue through which Ms Bashour would be able to obtain those documents, then, subject to the determination of the oppression claim, discovery of those documents ought to be provided in order to enable Ms Bashour to have a fair hearing.
[38]This is an important qualification, given that the oppression claim is yet to be determined, which will require an assessment of whether the forensic significance of the documents concerned justifies the potential burden upon ANZ in searching for and discovering the documents.

However, prior to turning to my analysis of whether the denial of part or all of the discovery request runs a real risk of Ms Bashour not being able to have a fair hearing by being denied access to relevant documents, I should say that the question of what might be a reasonable and proper response to the discovery request is not to be determined in a vacuum, without reference to broader considerations of efficiency and case management, and in the current case, the oppression claim. When it comes to determining applications for discovery, considerations of efficient case management loom large, particularly so following the decision of the High Court in AON,[39] and the enactment of the CPA. While the provisions of the CPA do not bind VCAT and the parties to proceedings in VCAT, the VCAT Act itself imposes obligations upon VCAT to facilitate and promote, in the language of s 7 of the CPA, the “just, efficient, timely and cost‑effective resolution of the real issues in dispute”.[40]
[39](2009) 239 CLR 175.
[40]Section 98(1) of the VCAT Act provides as follows: “(1) The Tribunal—(a) is bound by the rules of natural justice; (b) is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures; (c) may inform itself on any matter as it sees fit; (d) must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.” (emphasis added) Accordingly, the requirements of the VCAT Act are not dissimilar to the overarching obligations in the CPA.

I doubt that it could be said that s 97 of the VCAT Act, s 24 of the Charter, or the common law obligation to afford the parties procedural fairness can be relied upon to facilitate discovery processes which compel parties to civil proceedings to discover irrelevant documents, or tangentially relevant documents, or to embark on discovery processes which are disproportionate in cost and effort to what is at stake in the underlying dispute. That said, having regard to the nature of Ms Bashour’s claims and the issues in the VCAT proceeding, including the fact that the final hearing of the VCAT proceeding is estimated to take 12 to 20 days, and the potential financial[41] and reputational consequences to ANZ should Ms Bashour’s claim be successful in whole or in part, the VCAT proceeding is a substantial piece of litigation compared with, say, proceedings in one of VCAT’s protective or review jurisdictions.
[41]As a major bank, the question of any successful claim by Ms Bashour will not be material in the sense that it would affect the profitability or solvency of ANZ, but the potential quantum of Ms Bashour’s claim may be quite large in the context of employment disputes.

Further, when assessing the Member’s refusal to compel ANZ to make discovery in accordance with the discovery request, I propose to review the discovery request category by category, rather than globally, for the purpose of determining whether the denial of the discovery request, or any part of it, could cause substantial injustice in that the inability to access relevant documents could compromise Ms Bashour’s ability to have a fair hearing of her claims in the VCAT proceeding.

In that regard, it is clear to me from reviewing the points of claim, the witness statements in the court book, ANZ’s defence, the discovery request, and the parties’ oral and written submissions regarding the discovery request, that evaluating the potential relevance of the categories of documents in the discovery request and the potential adverse consequences of the denial of the discovery request on a global basis is problematic. In particular, a large number of categories sought by the discovery request go to what are clearly peripheral issues, in that I have no difficulty with the Member’s findings that they are not directly relevant to an issue on the pleadings in the VCAT proceeding, but go only to minor disputes of fact between witnesses.

Indeed, the large number of categories of documents which meet this description may well have obscured the fact that some of the categories of documents which have been found by the Member not to be relevant appear to be, on their face at least, directly relevant to the issues in dispute on the pleadings, or are relevant to Ms Bashour’s claim for economic loss. However, to make a finding that the Member’s decision is vitiated by an error of law without making it clear that a large number of categories of documents were correctly found by the Member to not be relevant to any issue in the proceeding, or were only tangentially relevant, or will be of little or no value in establishing Ms Bashour’s claims in the VCAT proceeding will almost certainly result in further delay and inefficiency.

Accordingly, having regard to the nature of the discovery request, the exceptional circumstances of this case, and this Court’s obligations under the CPA, if the Member’s discretion with respect to the discovery request is found to have miscarried, then I should exercise the Court’s power under s 148(7)(b) of the VCAT Act to make an order that the Member could have made in the VCAT proceeding. In doing so, I would be cognisant of the obligations imposed upon VCAT under ss 97 and 98(1)(d) of the VCAT Act, the obligations imposed upon this Court by the CPA, and the decision of the High Court in AON,[42] all of which make quite clear that, when determining applications for discovery, the entitlement of a party to discovery is constrained by considerations of efficient case management, and the objectives of reducing cost and delay.
[42](2009) 239 CLR 175.

I appreciate that the approach I will adopt is unusual in applications of the current kind, in that, by assessing whether the denial of the discovery request, or any part of it, may lead to a substantial injustice, I will be, in effect, undertaking a review of the merits of the Member’s decision and substituting my view regarding the relevance of the categories of documents in the discovery dispute for that of the Member. This is a course of action which would not ordinarily be embarked upon by this Court, save in exceptional circumstances, given that the Member’s decision concerns a matter of practice and procedure, and involves a discretionary judgment.[43]
[43]However, it has been observed that, on occasion, it may be consistent with its overarching obligations under the CPA for this Court to exercise the power conferred upon it under s 148(7) of the VCAT Act. See Swan v Uecker (2016) 50 VR 74, [78]-[79].

However, in my view, exceptional circumstances exist in the current case. The underlying factual dispute in the VCAT proceeding concerns events going back to 2013 and 2014, perhaps even earlier. The resolution of the dispute regarding the discovery request has been plagued by delay. I can assume that the final hearing of the VCAT proceeding is unlikely to take place before 2023, and this proceeding is the second excursion to this Court concerning the discovery request. In any event, given that the central issue in this application is whether the denial of the discovery request, or any part of it, would materially compromise Ms Bashour’s ability to have a fair hearing, considering the merits of the discovery request is unavoidable. Finally, given the materials before me, I am in as good a position as the Member or another judicial officer at VCAT to determine the relevance of the documents sought by Ms Bashour in the discovery request.

I also appreciate that my approach to the current application might appear to be inconsistent with the approach of Moore J in the first appeal, given that his Honour refused leave to appeal with respect to the grounds of appeal which, in effect, attacked the substance of the Member’s decision rather than the Member’s failure to take into account the 23 September submissions. Moore J held that the adoption of the yard‑stick was an approach which was open to the Member (and I agree with that conclusion), but otherwise refused leave on the basis that the questions of law raised no issue of public importance, in some cases were unmeritorious, and his Honour was otherwise disinclined to review the merits of the Member’s determination of the discovery request, but rather remitted the discovery request to the Member solely on the basis of her failure to have regard to the 23 September submissions.

In contrast, the questions of law and grounds of review raised by Ms Bashour in the current application throw the question of whether the Member’s conclusion that most of the categories of documents in the discovery request were not relevant to the issues in the proceeding could jeopardise Ms Bashour’s ability to have a fair trial into sharper relief, given that reviewing the 23 September submissions did not alter the Member’s view at all. Further, the time that has elapsed since the hearing and the determination of the first appeal makes the resolution of the dispute concerning the discovery request even more pressing.

Finally, I appreciate that the oppression claim remains to be agitated before VCAT in relation to at least one significant category of documents, and will need to be agitated with respect to a number of other categories as a consequence of the decision in this proceeding. Given the manner in which the discovery request and the oppression claim have been ventilated at VCAT, it is not possible to adjudicate upon the oppression claim in these reasons, save to observe that, having reviewed the affidavit of ANZ’s solicitor regarding the oppression claim, I can see how the manner in which some of the categories in the discovery request has been framed will impose a substantial burden upon ANZ if it is required to make discovery of those categories of documents. It seems to me that there is scope for the parties to co‑operate to refine the relevant categories in order to reduce the potential burden of discovery upon ANZ.

Accordingly, in these reasons, I will deal with, sequentially, the following matters:

(a) what Ms Bashour must prove in the VCAT proceeding;

(b) whether denial of the discovery request, or any part of it, would have a materially adverse effect upon Ms Bashour’s ability to have a fair hearing, having regard to the forensic significance of the documents or categories of documents to the real issues in dispute in the VCAT proceeding; and

(c) some brief observations regarding other issues raised in the notice of appeal, including:

(vi) the appropriateness of the Member’s “yard-stick” and the Member’s application of the “yard-stick”, and whether the Member erred in considering herself to be bound by the decision of Moore J in the first appeal;

(vii) whether the conduct of the VCAT proceeding is governed or otherwise affected by the objectives set out in s 3 of the EOA; and

(viii) the relevance and significance of the evidence and submissions concerning Ms Bashour’s health and the past and future conduct of the VCAT proceeding to the disposition of the current application.

The test for leave to appeal

Prior to turning to the question of whether the denial of the discovery request, or any part of it, may cause substantial injustice, I will briefly comment upon the test for granting leave to appeal in s 148 of the VCAT Act, and the question raised in Ms Bashour’s submissions as to whether the Charter confers substantive rights which enable an applicant to circumvent the requirement for leave to appeal in s 148 of the VCAT Act.

I have already made some brief observations regarding the relative stringency of the test for leave to appeal when the decision under review concerns matters of practice and procedure. In his reasons concerning the first appeal, Moore J considered recent decisions of the Court of Appeal concerning the principles governing the grant of leave to appeal, stating that “the … authorities clearly establish that it is open to the Court … 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”.[44] His Honour later observed that “in the 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”.[45] His Honour’s summary of the applicable test is undoubtedly correct, and, in ordinary circumstances, the application of these principles would justify refusing leave to appeal, given that the Member’s decision involved the exercise of a discretionary judgment concerning matters of practice and procedure. However, the approach taken by the Member has potentially jeopardised Ms Bashour’s ability to have a fair hearing, and in my view, the justice of the case warrants the intervention of this Court.
[44]Bashour v ANZ [2020] VSC 478 [35].
[45]Ibid [40].

However, as well as submitting that the Court’s discretion to grant leave to appeal is enlivened, Ms Bashour also submits that, insofar as she relies upon the provisions of the Charter, leave to appeal is not required, because s 6(2)(b) of the Charter confers jurisdiction on this Court to review the orders of VCAT to the extent that the Tribunal has functions under Part 2 and Division 3 of Part 3 of the Charter.

This submission raises two issues:

(a) first, when making paragraph 1 of the 4 March orders, the Member was performing a “function” under Part 2 and/or Division 3 of Part 3 of the Charter; and

(b) if so, whether the exercise of those functions gives rise to a cause of action independent of the right to apply for leave to appeal under s 148 of the VCAT Act.

Ms Bashour contends that in making the 4 March orders (which included timetabling orders for the further conduct of the VCAT proceeding) VCAT was required by s 38 of the Charter to act compatibly with, and give proper consideration to, Ms Bashour’s human rights.

Section 38 of the Charter applies to “public authorities”, which are defined by s 4(1)(j) as excluding courts and tribunals, save where they are acting in an administrative capacity. It is arguable that VCAT, when making routine timetabling orders, is acting in an administrative capacity, and is thus required to comply with s 38 of the Charter.[46]
[46]For a more detailed discussion of these issues, see the decision of Ginnane J in Cemino v Cannan (2018) 56 VR 480.

However, the notice of appeal does not seek to set aside the timetabling orders made in the 4 March orders. Ms Bashour’s application for leave to appeal only seeks to impugn the Member’s order denying the relevance of the categories of documents in the discovery request. Plainly, that is not a decision of an administrative character. While adjudication of a discovery dispute concerns a matter of practice and procedure, there can be no doubt, in my view, that the Member was exercising a judicial function when relying upon the relevance of the categories of documents in the discovery request.

There is some debate within the authorities regarding the reach of s 6(2)(b) of the Charter, and what constitutes the “functions” of courts and tribunals for the purpose of determining the application of the Charter rights to those bodies. However, it is not necessary to embark upon a detailed survey of the authorities, as there is no doubt that VCAT is bound, when exercising its “functions”, by the obligation to ensure that the parties before it have a fair hearing by reason of s 24 of the Charter. Given the approach I have taken to the resolution of the application for leave to appeal, the question of whether the Member was obliged to, and if so, failed to interpret her powers under ss 97 and 98 of the VCAT Act in accordance with s 32 of the Charter is not necessary to resolve.

Finally, again, while it is not strictly necessary for me to address the issue of whether Ms Bashour’s application for leave to appeal, at least insofar as it relies upon the provisions of the Charter, circumvents the leave requirements in s 148 of the VCAT Act, in my view, the better view is that once s 148 of the VCAT Act is engaged, then the requirement for leave must follow. There may be room for debate as to whether the Charter rights might be relied upon in any application for judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) such as to circumvent the requirement for leave, but that is a debate for another day.

I shall now turn to what Ms Bashour must establish if she is to make good her claims in the VCAT proceeding, including her claim for economic loss. While in the points of claim Ms Bashour’s claim for loss and damage is expressed in “boilerplate” terms, I agree that, all other things being equal, Ms Bashour has a prime facie entitlement to discovery of documents relevant to her claim for economic loss if she is to achieve anything more than a symbolic victory in the VCAT proceeding.

The substantive issues in the VCAT proceeding

Sections 8 and 9 of the EOA provide as follows:

8 Direct discrimination
(1)Direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.
…
(2) In determining whether a person directly discriminates it is irrelevant—
(a)whether or not that person is aware of the discrimination or considers the treatment to be unfavourable;
(b) whether or not the attribute is the only or dominant reason for the treatment, provided that it is a substantial reason.

9 Indirect discrimination
(1)Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice—
(a)that has, or is likely to have, the effect of disadvantaging persons with an attribute; and
(b) that is not reasonable.

(2) The person who imposes, or proposes to impose, the requirement, condition or practice has the burden of proving that the requirement, condition or practice is reasonable.
(3) Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances of the case, including the following—
(a) the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the requirement, condition or practice;
(b) whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the requirement, condition or practice;
(c) the cost of any alternative requirement, condition or practice;
(d) the financial circumstances of the person imposing, or proposing to impose, the requirement, condition or practice;
(e) whether reasonable adjustments or reasonable accommodation could be made to the requirement, condition or practice to reduce the disadvantage caused, including the availability of an alternative requirement, condition or practice that would achieve the result sought by the person imposing, or proposing to impose, the requirement, condition or practice but would result in less disadvantage.

(4) In determining whether a person indirectly discriminates it is irrelevant whether or not that person is aware of the discrimination.

Further, s 18 of the EOA provides that an employer must not discriminate against an employee by reason of an attribute referred to in s 6 of the EOA (‘protected attribute’), and s 19 of the EOA provides that an employer must not unreasonably refuse to accommodate an employee’s responsibilities as a parent or carer. Section 20 of the EOA also provides that an employer must make reasonable adjustments for an employee with a disability.

Finally, s 103 of the EOA prohibits victimisation, which is defined in s 104 of the EOA as when a person is subjected to detriment or is threatened with detriment by reason of, among other things, alleging that there has been a contravention of the EOA.

Direct discrimination

Accordingly, in order to establish a claim for direct discrimination, an applicant must establish:

(a) the applicant has a protected attribute or attributes (which does not appear to be an issue in dispute in the VCAT proceeding); and

(b) the applicant has been treated less favourably by reason of the protected attribute.

Accordingly, as well as establishing that she has been treated less favourably by ANZ, Ms Bashour will need to establish a causative link between the protected attribute and her treatment. By necessary implication, she would need to establish that the relevant employees at ANZ knew of the protected attribute at the time of engaging in the alleged contravening conduct, which may be an issue insofar as she claims that she was discriminated against on the basis of her disabilities.

Indirect discrimination

To prove indirect discrimination, the elements of indirect discrimination in s 9 of the EOA need to be established.[47] The elements are:
[47]Ferris v Department of Justice and Regulation (Human Rights) [2017] VCAT 1771, [79].

(a) a requirement, condition or practice is imposed by a person;

(b) there are other persons with an attribute;

(c) the requirement, condition or practice has, or is likely to have, the effect of disadvantaging the persons with an attribute; and

(d) the requirement, condition or practice is not reasonable.

In order to establish a requirement, condition or practice, an applicant may need to adduce evidence that there is a pattern of conduct giving rise to the requirement, condition or practice. In Bevilacqua v Telco Business Solutions (Watergardens) PL (Human Rights),[48] a senior member of VCAT rejected an allegation that an employer had engaged in indirect discrimination, stating as follows:

I rejected the submission that Mr J. Rovas refusing Ms Bevilacqua’s request to reduce her working hours per week from full time to 28 hours, without considering the nature of the request or how to reasonably accommodate it, provides an evidentiary basis to conclude that full time staff must work full time hours regardless of any need for adjustments to their hours to accommodate a medical condition or temporary disability.
That evidence before me concerns one request by one employee at one time. A pattern of such requests and such refusals would be required to prove the requirement.[49]

[48][2015] VCAT 269.

[49]Ibid [187]–[188].

Further, the requirement, condition or practice imposed should be identified with some precision,[50] although it may be implied from the surrounding circumstances.[51]
[50]Mulligan v Virgin Australia Airlines PtyLtd (2015) 234 FCR 207, [153], in the context of s 6 of the Disability Discrimination Act 1992 (Cth), which does not include ‘practice’ as part of the definition of indirect discrimination.
[51]Ferris v Department of Justice and Regulation (Human Rights) [2017] VCAT 1771, [88].

Further, an applicant claiming indirect discrimination must show that the requirement, condition or practice has, or is likely to have, the effect of disadvantaging a particular group of people with an attribute, and not just that it has such an effect on the applicant,[52] that is, it must be systemic in nature.[53] If the effect of the requirement, condition or practice is established to be discriminatory, the person imposing the requirement, condition or practice has the burden of proving that the requirement, condition or practice concerned is reasonable.[54]
[52]Petrou v Bupa Aged Care Australia Pty Ltd (Human Rights) [2017] VCAT 1706, [102]–[108]; Ferris v Department of Justice and Regulation (Human Rights) [2017] VCAT 1771, [89]–[90].
[53]Mulder v Victoria Police (Human Rights) [2020] VCAT 428, [55].
[54]Equal Opportunity Act 2010 (Vic) s 9(2) (‘EOA’).

Victimisation

Section 104 of the EOA provides that a person victimises another person if the person subjects or threatens to subject the applicant to any detriment by reason of the applicant having made complaints of discrimination or brought proceedings under the EOA or its predecessor legislation. Section 4 defines “detriment” as including humiliation and denigration. Again, an applicant must establish a causative link between the contravening conduct and the conduct of the applicant in bringing a proceeding and/or making a complaint. Accordingly, when making an assessment of whether the documents sought in the discovery request are relevant to Ms Bashour’s victimisation claim, documents which record or concern events prior to 15 January 2014, when Ms Bashour first made a complaint to the FWC, cannot be relevant to the victimisation claim.

Claim for economic loss

Finally, a substantial part of the discovery request is said to be relevant to Ms Bashour’s claim for past and future economic loss. While the particulars of loss and damage in the points of claim are expressed in fairly broad terms, it is apparent from the Dell report and Ms Bashour’s witness statements filed in the VCAT proceeding that Ms Bashour’s claim for economic loss is founded upon a counter‑factual, being that, but for the alleged contraventions of the EOA by ANZ, Ms Bashour would now be well advanced upon a career trajectory at ANZ which would be steeper than normal, given her superior skills, qualifications, and job performance. The Dell report seeks to identify Ms Bashour’s likely career progression, and to quantify the income she would have earnt along the way. The discovery request is targeted in part at establishing Ms Bashour’s superior qualities and performance (and ANZ’s recognition of her qualities and performance) in order to prove that Ms Bashour was an exceptional employee with a bright future, and in part at eliciting information about the performance, career trajectories and remuneration of Ms Bashour’s peers and immediate superiors in order to assist in the quantification of her claim for past and future economic loss.

Accordingly, the issues which arise on the pleadings in the VCAT proceeding and the statutory framework within which Ms Bashour’s claims will be adjudicated include (ignoring uncontroversial matters):

(a) whether Ms Bashour was treated unfavourably by ANZ;

(b) whether any unfavourable treatment was by reason of her protected attributes, or by reason of her having alleged that ANZ had engaged in discriminatory conduct. In that regard, I accept that evidence that Ms Bashour was treated less favourably than other employees with similar protected attributes may be relevant to the question of victimisation;

(c) whether any requirement, condition or practice imposed by ANZ disadvantaged, or could potentially disadvantage employees with the same or similar protected attributes of Ms Bashour, noting the observations made by VCAT members determining claims under the EOA to the effect that it is difficult to prove indirect discrimination without evidence of the impact of those requirements, conditions or practices upon employees other than the applicant;

(d) whether any requirement, condition or practice imposed by ANZ was reasonable (although the burden of proof in that regard would fall upon ANZ);

(e) whether ANZ unreasonably refused to accommodate Ms Bashour’s caring responsibilities, or failed to make reasonable adjustments for her disabilities; and

(f) Ms Bashour’s likely career progression and remuneration but for any contravention by ANZ of the relevant provisions of the EOA.

The relevance of the documents sought by the discovery request to the issues in the proceeding

As noted earlier in these reasons, the categories of documents in the discovery request can be grouped as follows:

(a) the Edelman documents;

(b) other employee specific documents;

(c) complaint documents;

(d) personal documents; and

(e) other documents.

Turning first to the Edelman documents, Ms Edelman is relevant to Ms Bashour’s claim in a number of respects. First, Ms Bashour contends that Ms Edelman was the beneficiary of ANZ’s discriminatory conduct, in that she was promoted ahead of Ms Bashour, not on merit, but because she did not have caring responsibilities,[55] and secondly, that Ms Edelman, as Ms Bashour’s line manager, was a perpetrator of discriminatory conduct. It appears that ANZ has discovered some documents concerning Ms Edelman’s promotion, but has denied the relevance of others. The apparent forensic purpose of Ms Bashour seeking the Edelman documents is directed in part in order to disprove the contention of ANZ’s witnesses that Ms Edelman was appointed to her position over Ms Bashour because of her superior experience, qualifications and attributes, and in part to support Ms Bashour’s contention that Ms Edelman treated her less favourably because of her protected attributes, or engaged in conduct which amounted to victimisation.
[55]Although, oddly, no relief is sought in the points of claim in relation to that allegation.

Ms Edelman is also a contemporary of Ms Bashour in the legal and compliance fields in ANZ, such that her past and future career trajectory and remuneration are also potentially relevant to Ms Bashour’s economic loss claim. She is also a witness in the VCAT proceeding. Accordingly, there are some categories of documents in the discovery request which are relevant to the issues in the VCAT proceeding (see categories 3, 5 and 97 of the CDT). However, the remaining categories sought in the discovery request go to matters which are, with respect, at best tangential to the issues in the VCAT proceeding. By way of example, documents which would evidence Ms Edelman’s travel to Canberra prior to joining Ms Bashour’s team in order to test the veracity of the statement in Ms Edelman’s statement that in her previous role she had meetings in Canberra with ministerial staff go to a factual dispute which is peripheral in the extreme. Almost all of the Edelman documents fall within this category.

Accordingly, I disagree with the Member’s conclusion that categories 3, 5 and 97 in the CDT are not relevant to the issues in the VCAT proceeding, but would otherwise uphold the Member’s ruling with respect to the remainder of the Edelman documents.

The other employee specific documents appear to have been sought for a wide range of purposes, including:

(a) obtaining documents which would show that some of the ANZ witnesses, particularly Messrs Shaw and Harman, are not telling the truth in their witness statements;

(b) obtaining documents which Ms Bashour contends would disprove assertions in the Dunlop statement about the usual career progression of ANZ employees;

(c) obtaining documents which may support a contention that other named ANZ employees with protected attributes were also discriminated against by ANZ; and

(d) obtaining documents which may show that ANZ’s treatment of some employees, including those with disabilities and/or caring responsibilities, was more favourable than ANZ’s treatment of Ms Bashour, which are said to be relevant to the victimisation claim.

This group of documents was no doubt what the Member had in mind when she formed the view that a significant focus of the discovery request was to obtain documents relevant to relatively minor factual disputes between Ms Bashour and ANZ’s witnesses. I largely concur with the Member’s view in that regard. In my view, it could not possibly be said that depriving Ms Bashour of the opportunity to “test” whether someone went on leave at a particular time, or was surprised at the size of Ms Bashour’s bonus payment at a time well prior to the relevant events, or used a “passive aggressive” tone in their emails would deprive Ms Bashour of a fair hearing of her claims in the VCAT proceeding. A further example which supports a view that Ms Bashour and her legal team have adopted a less than discriminating approach to discovery is the category of documents concerning the performance of and complaints against a former colleague of Ms Bashour who also applied for the same promotion as Ms Bashour in 2013 – and who also did not get the job.

There is a subset of documents within this category which concern the career path and complaints of discrimination made by other employees of ANZ who, I assume from the way in which the relevant category is expressed, Ms Bashour considers may have been treated less favourably than others by reason of ANZ’s alleged discriminatory conduct towards them. Evidence concerning other alleged discriminatory conduct on the part of ANZ may well be relevant to an allegation that there is indirect discrimination, a history or pattern of discriminatory conduct, or a hostile work environment for people with certain protected attributes.

However, in the absence of any probative evidence of the forensic purpose of seeking the specific categories of documents concerned, it seems to me that this aspect of the discovery request is speculative only. While there is a statement in the materials to the effect that certain women have reached out to Ms Bashour about their alleged treatment by ANZ, it was not suggested that the individuals referred to in these categories of the discovery request will give evidence at the final hearing, or what the forensic value of such documents might be in the event that they do not give evidence. Compelling reasons would need to be given to justify requiring ANZ to produce highly personal and confidential information regarding other current or former ANZ employees that are not the subject of direct allegations by Ms Bashour. In any event, given the size of ANZ’s Australian workforce (in excess of 30,000 employees) it is difficult to see how the experiences of a small handful of individuals could have any real probative value for the purpose of establishing Ms Bashour’s claims. I accept that the experience of others may be relevant to a claim based upon indirect discrimination, but again, given the size of ANZ’s workforce, evidence that a small number of ANZ’s employees may have been adversely affected by a particular policy or practice of ANZ is unlikely to be of great forensic value in the VCAT proceeding.

Accordingly, I do not disagree with the Member’s ruling with respect to most of the employee specific documents. However, there are two categories of documents (see categories 24 and 98) which go to the performance and remuneration of a direct contemporary of Ms Bashour, and thus are relevant to Ms Bashour’s claim for economic loss.

The complaint documents include documents which record or otherwise evidence complaints made by other ANZ employees within a two‑year time period concerning conduct of a similar nature to those alleged by Ms Bashour in the points of claim, which were said to be relevant to Ms Bashour’s indirect discrimination claim.

Given the relatively high forensic hurdles facing an applicant alleging indirect discrimination, as an applicant in the position of Ms Bashour must establish that an apparently neutral requirement, condition or practice imposed by ANZ adversely and disproportionately affected employees with a particular protected attribute, not just her personally, documents evidencing complaints by other employees of a similar nature are prima facie relevant to the issues raised by the pleadings in the VCAT proceeding.

Accordingly, the Member was incorrect to say that the documents sought by those categories of documents are not relevant to the issues in the VCAT proceeding. However, I appreciate that a significant number of these categories of documents will be the subject of the oppression claim. VCAT will ultimately need to balance the forensic value of these categories of documents to one limb of Ms Bashour’s claim against the burden which would be imposed upon ANZ in being required to locate and produce those categories of documents.

However, I would make two qualifications to my finding regarding the relevance of the complaint documents. First, some of the categories are drawn too widely, in that they seek documents evidencing complaints about workplace conflict and workplace stress, which can only be tangentially relevant, if relevant at all, to a claim that ANZ has engaged in discriminatory conduct on a systemic basis. These categories should be confined accordingly.

Secondly, I fail to see how documents recording communications between ANZ employees on sick leave and, presumably, their managers (although the categories are not so confined) can be relevant to an issue in dispute in the VCAT proceeding. This aspect of the discovery request must be predicated upon an assumption that such communications necessarily equate to adverse treatment or detriment, which I suspect in the vast majority of cases, they could not be so characterised.

There must be a wide range of reasons why managers at ANZ would communicate with employees on sick leave, either formally or informally, and one would expect that the overwhelming proportion of those communications would be quite innocuous. I do not need evidence or submissions to cause me to conclude that the burden of locating such documents would be oppressive, and out of all proportion to the potential forensic value of the documents concerned.

Turning now to the personal documents, I assume that a considerable number of documents concerning Ms Bashour’s employment with ANZ are already in evidence, or have already been discovered by ANZ. The personal documents largely concern attempts by Ms Bashour to contest the evidence of Messrs Harman and Shaw, and to bolster her own evidence to the effect that her role at ANZ when she was first employed was created specially for her, and that she was considered by others at ANZ to be the primary contact in her team. I accept that, taking a very generous view of relevance, these documents are relevant to issues in the proceeding, but I cannot see how the denial of such documents would seriously impede Ms Bashour’s ability to have a fair hearing.

That being said, I do accept that documents concerning Ms Bashour’s performance (category 6 of the CDT) and the removal of her name from a list of contacts in an internal newsletter (category 91 of the CDT) are relevant to the issues in the proceeding.

Finally, Ms Bashour has sought discovery of any documents evidencing communications about an article published in the Herald Sun in December 2014. However, this publication is not referred to in the points of claim, and, given that the article was published after Ms Bashour left ANZ, it is difficult to see how such documents could be relevant to her victimisation claim. However, documents evidencing communications with the media prior to her departure from ANZ may well be relevant to the victimisation claim.

Turning now to the other documents, those categories of documents fall into two sub‑categories, being documents related to certain ANZ policies and procedures, and documents said to be relevant to Ms Bashour’s claim for economic loss. As for the documents concerning ANZ’s policies and procedures, I assume that most of the relevant policies and procedures have been discovered or are in evidence. Ms Bashour seeks documents concerning changes to the ANZ Flexible Work Arrangement policy between September 2013 and February 2014, apparently because she suspects that the policy was changed in response to her dispute with her managers about her flexible work arrangements, which was said to be relevant to the victimisation claim.

The proposition that ANZ would surreptitiously modify a significant employment policy in order to thwart the proposals of a single employee seems to me to be far‑fetched in the extreme. Further, given that Ms Bashour made her first complaint to the FWC in mid January 2014, documents which predated ANZ’s knowledge of that claim cannot be relevant to the victimisation claim, but the time span for the documents sought by this category largely (although not entirely) pre‑dates Ms Bashour’s complaint to the FWC.

As for documents said to be relevant to Ms Bashour’s claim for economic loss, I agree that, given the way that Ms Bashour puts her case, documents concerning the skills and qualifications required for senior positions at ANZ, and documents evidencing the likely number of competitors for such positions are directly relevant to an issue in the VCAT proceeding.

My findings in relation to the relevance of each of the categories of documents in the discovery request, along with brief reasons in relation to each of the categories of documents in the CDT, are summarised in a revised version of the CDT, which will be provided to the parties separately.

I should at this point take the opportunity to note that my findings with respect to the relevance of particular categories of documents in the discovery request does not amount to a direction to the effect that the oppression claim in respect of a sub‑set of those categories of documents must as a matter of course be resolved in Ms Bashour’s favour. My approach to the discovery request has been based upon an assumption that in a case of the kind of the VCAT proceeding, where necessarily a lot of relevant documents will be in the possession of ANZ, Ms Bashour will be materially disadvantaged in the conduct of the VCAT proceeding if she does not have access to documents which on their face are directly relevant to the issues in the VCAT proceeding. This finding is, of course, a matter which will need to be taken into account by whoever determines the oppression claim. However, these findings are not conclusive of that matter. I repeat, a fair trial is not a perfect trial, and the issue of fairness cuts both ways. It may well be the case that it is ultimately held that the burden imposed upon ANZ searching for and producing certain categories of documents far outweighs their potential forensic value in the VCAT proceeding.

Other issues

I will now turn briefly to the other issues raised in the notice of appeal.

The yard-stick, and the decision of Moore J in the first appeal

In the November 2019 reasons, the Member referred to the “yard-stick” by which she evaluated the categories of documents sought by the discovery request, that is, if the category sought related to an issue which was identifiable from the pleadings, even if only remotely relevant, then the Member would allow discovery, but the Member would not allow discovery if the issue only concerned minor disputes of fact between witnesses.

In the first appeal, Moore J held that the Member’s use of the yard-stick was an approach which was open to the Member. As indicated earlier in these reasons, I agree. In the January 2021 hearing, Ms Bashour’s solicitor urged the Member to revisit the yard-stick, but she declined, on the basis that she was precluded from doing so by the conclusions of Moore J in the first appeal.

I do not accept that the Member was so confined, given that all that Moore J said was that the Member’s adoption of the yard‑stick was something which was open to her. His Honour did not suggest that she was bound to apply the yard‑stick on the remitter. However, that is not of great moment, as I agree that it was open for the Member to continue to utilise the yard‑stick as a means of evaluating the discovery request, and, given the nature and asserted purpose of a number of the categories in the discovery request, it was open for the Member to conclude that a substantial number of the categories of documents sought by the discovery request went to tangential issues of dubious relevance, or were of limited, if any, forensic value, and thus did not fall within the yard‑stick. The real difficulty with the Member’s conclusions is her determination that a not insignificant number of the categories sought in the discovery request were not relevant to the issues in the VCAT proceeding, and as such did not fall within her yard‑stick, when in my view they were plainly relevant to the issues in dispute on the pleadings in the VCAT proceeding. That is, the real issue in this proceeding is not the Member’s formulation and adoption of the yard‑stick, but its application to the discovery request. Accordingly, any error on the part of the Member was not one which had a material impact upon the decision under review.

Relevance of the objectives of the EOA

Section 3 of the EOA provides as follows:

The objectives of this Act are—
(a)to eliminate discrimination, sexual harassment and victimisation, to the greatest possible extent;
(b) to further promote and protect the right to equality set out in the Charter of Human Rights and Responsibilities;
(c) to encourage the identification and elimination of systemic causes of discrimination, sexual harassment and victimisation;
(d) to promote and facilitate the progressive realisation of equality, as far as reasonably practicable, by recognising that—
(i) discrimination can cause social and economic disadvantage and that access to opportunities is not equitably distributed throughout society;
(ii) equal application of a rule to different groups can have unequal results or outcomes;
(iii) the achievement of substantive equality may require the making of reasonable adjustments and reasonable accommodation and the taking of special measures;

(e) to enable the Victorian Equal Opportunity and Human Rights Commission to encourage best practice and facilitate compliance with this Act by undertaking research, educative and enforcement functions;
(f) to enable the Victorian Equal Opportunity and Human Rights Commission to resolve disputes about discrimination, sexual harassment and victimisation in a timely and effective manner, and to also provide direct access to the Victorian Civil and Administrative Tribunal for resolution of such disputes.

Ms Bashour contends that, in denying the discovery request, VCAT has failed to comply with s 3(f) of the EOA. She submitted as follows (emphasis omitted):

In misapplying the judgment of Moore J and/or in making erroneous findings in relation to the nature of the documents of which discovery is sought, the learned Member has failed to act in accordance with the objective of providing direct access to VCAT for the resolution of disputes about discrimination and victimisation (s.3(f)). Such access must be “effective” and it must be for the “just” resolution of disputes.
In denying [Ms Bashour] discovery of plainly relevant documents (even where relevance is determined in accordance with the learned Member’s own ‘yardstick’), the learned Member denied [Ms Bashour] effective access to VCAT. VCAT cannot resolve a dispute about discrimination or victimisation without documents which are relevant to such a dispute. Alternatively, if VCAT attempts to do so, the resolution of such a dispute will not have been just as it will necessarily have failed to take account of relevant matters.
The learned Member’s failure to act in accordance with s.3(f) of the EOA, in turn, undermined the other objectives of the EOA, in particular, to eliminate discrimination and victimisation (s.3(a)), to further promote and protect the right to equality set out in the Charter (s.3(b)), to encourage the identification and elimination of systemic causes of discrimination and victimisation (s.3(c)) and to promote and facilitate the progressive realisation of equality (s.3(d)).

Ms Bashour submitted further that by denying the discovery request, insofar as it concerned categories of documents relevant to the indirect discrimination claim, the Member failed to act in accordance with the objective of identifying and eliminating systemic discrimination.

In response, ANZ submitted that this ground of review is predicated on an assumption that the Member, in rejecting the discovery request, had denied Ms Bashour access to relevant documents. Further, ANZ submitted that Ms Bashour’s reliance upon this ground of review is tantamount to a suggestion that if an applicant seeking relief at VCAT under the EOA is unsuccessful in obtaining discovery of documents that they consider relevant, VCAT must necessarily be in breach of the EOA.

I agree. In my view, the fact that Ms Bashour seeks relief under the EOA confers no greater rights upon her than any other litigant at VCAT. In other words, in the context of the current application, the EOA is not an independent source of any entitlement of a litigant at VCAT to discovery. At best, it might be said that, in the event there is any doubt as to what conduct might amount to a contravention of the EOA, that inquiry ought not be narrowly confined, thus potentially enlarging the scope of what might be relevant documents. However, the objectives of the EOA cannot, of themselves, render otherwise irrelevant documents relevant. This ground of review has no real prospects of success.

The relevance of Ms Bashour’s health issues to the current application

The submissions made by Ms Bashour went into some detail regarding her allegations to the effect that VCAT in general, and the Member in particular, have failed to make reasonable adjustments for her impairments in order to enable her effective participation in the VCAT proceeding. Further, Ms Bashour sought leave to admit into evidence a report by a consultant psychiatrist obtained after the January 2021 hearing, who opined as to the nature of the reasonable adjustments required to enable Ms Bashour’s effective participation in the VCAT proceeding,[56] and opined that the ongoing involvement of the Member in the VCAT proceeding would cause Ms Bashour further harm. The practical relevance of this evidence, the other medical reports in the court book, and Ms Bashour’s submissions regarding these issues to the current application is whether, if orders were made quashing the 4 March orders, the dispute regarding the discovery request should be remitted to the Member, or another judicial officer at VCAT.
[56]This report was also relied upon in order to support certain submissions made as to the manner in which this proceeding was to be conducted.

It is accepted by both parties that the test for determining whether a further hearing after a successful appeal should be remitted to the same judicial officer, or a different judicial officer, is accurately summarised in the following statement of Kyrou J in Vegco Pty Ltd v Gibbons:[57]

Successful applicants in judicial review and appeal proceedings to the trial division of this Court frequently seek remittal to a differently constituted primary decisionmaker when the primary decision is set aside and the matter is remitted. 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 of the primary decision-maker 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 decisionmaker or where it would be impracticable for the same primary decision-maker to redetermine the matter.[58]

[57][2008] VSC 363.

[58]Ibid [33].

However, given the approach I have adopted to the current application, I will not be making any orders under s 148(7)(c) of the VCAT Act remitting the discovery request to the Member (or any other judicial officer at VCAT) for the purpose of determining whether the documents sought by the discovery request are relevant to the issues in the VCAT proceeding. Accordingly, the occasion for making directions under s 148(8) of the VCAT Act does not arise, and, in those circumstances, it is not necessary or appropriate to express any view on the matter, given I am not empowered to make any directions in that regard.

The effect of the balance of the 4 March orders, and the orders I will make pursuant to ss 148(7)(a) and (b) of the VCAT Act, is that the oppression claim will need to be heard and determined with respect to the categories of documents already found by the Member to be relevant, as well as the categories of documents which I have found to be relevant to the issues in the VCAT proceeding which are also the subject of the oppression claim. In addition, there will need to be further timetabling orders made in the VCAT proceeding. In these circumstances, it seems to me that the question of who should hear the oppression claim and manage the remainder of the interlocutory steps in the VCAT proceeding is one that is best left in the hands of the appropriate personnel at VCAT, having regard to VCAT’s own resourcing considerations, and, if necessary, any matters raised by the parties in any submissions they choose to make regarding the constitution of the tribunal. If any party disagrees with the outcome of that process, then it would be open to them to make an application for reconstitution of the tribunal under s 108 of the VCAT Act.

Conclusion and draft orders

Turning now to the disposition of the application for leave to appeal, at least insofar as the questions of law that were ultimately pressed by Ms Bashour, I would refuse leave to appeal in relation to the second and fifth questions of law. In relation to the fourth question of law, I would grant leave to appeal and allow the appeal, insofar as this question of law concerns s 24 of the Charter. I will order that paragraph 1 of the 4 March orders be set aside pursuant to s 148(7)(a) of the VCAT Act, and make an order to the following effect in its place pursuant to s 148(7)(b) of the VCAT Act:

“Paragraph 1 of the orders made on 25 September 2019 is varied to include the following categories of documents in the discovery request made on 25 July 2019:
5, 6, 45, 47, 48, 49, 56, 57, 58, 59, 60, 82, 91, 97, 98, 99, 106

and categories 2, 3, 4, 6, 10 and 11 of the discovery request made on 4 September 2019.”

The final orders will need to be framed in such a way so as to confine some of the categories of documents referred to above, as recorded in the table provided to the parties. The parties are requested to confer about the appropriate form of orders to give effect to these reasons, and regarding the appropriate disposition of the question of costs.

SCHEDULE OF PARTIES

S ECI 2021 00971
BETWEEN:
KATHERINE BASHOUR	Applicant
- v -
AUSTRALIA AND NEW ZEALAND BANKING GROUP PTY LTD	First Respondent
SUSIE BABANI	Second Respondent
JENNIFER EVANS	Third Respondent
PHILIP CHRONICAN	Fourth Respondent

[2022] VSC 252

20 May 2022