Bethune v Strategic Lawyers Pty Ltd

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

Bethune v Strategic Lawyers Pty Ltd [2021] FedCFamC2G 6

File number(s): BRG 265 of 2020
Judgment of: JUDGE TONKIN
Date of judgment: 2 September 2021
Catchwords: PRACTICE AND PROCEDURE – Discovery – application for declaration that discovery be allowed – whether documents sought to be discovered amount to “fishing” – application for discovery granted.
Legislation:

Evidence Act 1995 (Cth) s 131(2)

Fair Work Act2009 (Cth) ss 340, 343, 351, 352, 419

Federal Circuit Court Act 1999 (Cth) s 45(1)

Federal Circuit Court Rules 2001 (Cth) rr 14.02(2)(b), 14.03

Legal Profession Act 2007 (Qld) s 419
Cases cited:

Abrahams v Qantas Airways Limited (No 2) [2007] FMCA 639; (2007) 210 FLR 314

Apotex Pty Limited v Les Laboratoires Servier (No 5) [2011] FCA 1282

Banque Commerciale S.A., en Liquidation v Akhil Holdings Limited (1990) 169 CLR 279

Dataquest (Australia) v Dataquest Inc [1996] FCA 1685

Director of the Fair Work Building Industry Inspectorate v Construction Forestry, Mining and Energy Union [2015] FCA 353

Harkianakis v Skalkos (1997) 42 NSWLR 22

Harwood v The Trustee of the Property of John Mervyn Harwood [2015] FCCA 1058

Jensen v Legal Services Commissioner [2017] QCA 189

Martin v Norton Rose Fullbright Australia (No 2) [2019] FCA 96

Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341

O'Sullivan v Parkin [2008] FCAFC 134

State of Victoria v Construction Forestry, Mining and Energy Union [2013] FCFAC 160

Unilever Plc v The Procter & Gamble Co [2000] 1 WLR 2436

Vinden v Wrong Fuel Rescue Pty Ltd & Anor [2019] FCCA 1091

Y v Z v W [2007] 70 NSWLR 377
Division: Division 2 General Federal Law
Number of paragraphs: 57
Date of hearing: 17 August 2021
Place: Brisbane
Counsel for the Applicant: Mr Latham
Solicitors for the Applicant: Anderson Gray Lawyers
Counsel for the Respondents: Mr Collins
Solicitors for the Respondents: Strategic Lawyers Pty Ltd

ORDERS

BRG 265 of 2020
BETWEEN:

LEA BETHUNE

Applicant
AND:

STRATEGIC LAWYERS PTY LTD (ACN 150 602 716)

First Respondent

JUSTIN IRELAND
Second Respondent

ORDER MADE BY:

JUDGE TONKIN

DATE OF ORDER:

2 SEPTEMBER 2021

THE COURT ORDERS THAT:

1.Pursuant to subsection 45 (1) of the Federal Circuit Court Act 1999 the Court declares that it is appropriate in the interests of the administration of justice that the First Respondent give discovery in accordance with Order 2.

2.Pursuant to rule 14.02 (2) (b) of the Federal Circuit Court 2001  the First Respondent give disclosure within 14 days of any documents within the following categories:

(a)For the period 14 September 2020 to 17 September 2020 a copy of all electronic documents that were sent to, received from, or were between the following directors or employees of Strategic Lawyers Pty Limited:

(i)Justin Ireland;

(ii)Steven Hodgson;

(iii)Iain Roots; and

(iv)Jon Spelman

which

(b)concerned the letter sent from the First Respondent to the Applicant on 17 September 2020; and

(c)contains any reference or part reference to Lea Bethune or this proceeding.

3.Pursuant to rule 14.03…

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Details
Case
[2021] FedCFamC2G 6
Decision Date

CaseChat Overview and Summary

In the matter of Bethune v Strategic Lawyers Pty Ltd, the applicant, Lea Bethune, sought a declaration that discovery be allowed in relation to specific documents held by the first respondent, Strategic Lawyers Pty Limited. The dispute centred around allegations of coercion and adverse action following Bethune's dismissal from her employment with the first respondent. Bethune claimed that she was threatened with referral to the Legal Services Commission if she did not withdraw her proceedings against the first respondent. The central issue for the court was whether the documents sought through discovery were relevant and necessary for the fair administration of justice.

The court examined the relevance of the documents in question, particularly those sent around the date of the contentious letter dated 17 September 2020, which Bethune claimed contained coercive language. The court considered the principle purpose of discovery, which is to ensure that all relevant evidence is presented to the court. This allows for a decision based on the truth of the matter and provides parties with an opportunity to assess the truth themselves. The court noted that the documents in question could either prove or disprove the allegations of coercion and the involvement of the directors and employees of Strategic Lawyers Pty Limited in drafting and sending the letter.

The court found that the documents were indeed relevant to the proceedings, as they could substantiate or refute Bethune's claims regarding the letter and the alleged coercive conduct by the first respondent. The court concluded that it was appropriate in the interests of justice to allow discovery of these documents. Consequently, the court ordered that the first respondent must disclose specific electronic documents within 14 days, detailing all communications related to the letter sent on 17 September 2020 and involving the key directors and employees of Strategic Lawyers Pty Limited. The matter was adjourned for mention to allow for the implementation of these orders.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. Pursuant to subsection 45 (1) of the Federal Circuit Court Act 1999 the Court declares that it is appropriate in the interests of the administration of justice that the First Respondent give discovery in accordance with Order 2.

2. Pursuant to rule 14.02 (2) (b) of the Federal Circuit Court 2001 the First Respondent give disclosure within 14 days of any documents within the following categories:

(a) For the period 14 September 2020 to 17 September 2020 a copy of all electronic documents that were sent to, received from, or were between the following directors or employees of Strategic Lawyers Pty Limited:

(i) Justin Ireland;

(ii) Steven Hodgson;

(iii) Iain Roots; and

(iv) Jon Spelman

which

(b) concerned the letter sent from the First Respondent to the Applicant on 17 September 2020; and

(c) contains any reference or part reference to Lea Bethune or this proceeding.

3. Pursuant to rule 14.03 of the Federal Circuit Court Rules 2001 within 14 days of the date of this order the First Respondent file an affidavit of documents particularising all electronic documents in the possession and/or under the control of the First Respondent that were sent to, received from, or were between the following directors or employees of Strategic Lawyers Pty Limited being Justin Ireland, Iain Roots and Jon Spelman and/or Steven Hodgson which concerned the letter sent from the First Respondent to the Applicant on 17 September 2020 and contains any reference or part reference to Lea Bethune and/or this proceeding.

4. The matter is adjourned for mention to 9:30am on 19 October 2021 in the Federal Circuit Court of Australia at Brisbane.

Background

Background to the litigation

The application for discovery relates solely to the claim with respect to coercion wherein the applicant contends that she received a letter from the First Respondent dated 17 September 2020 which threatened that if she did not withdraw from the proceeding she would be referred to the Legal Services Commission in particular to determine whether her conduct was fitting conduct for a legal practitioner.BACKGROUND The applicant is a single parent of two young children. She was employed by the First Respondent Strategic Lawyers Pty Limited (“SL”) as a solicitor between 6 December 2019 and 13 February 2020. The Second Respondent Justin Ireland (“Ireland”) was at all material times the Director of SL. SL employed and continues to employ Jon Spelman (“Spelman”) as Chief Operating Officer and employed Iain Roots (“Roots”) as Chief Information Officer. The applicant made several protected complaints and enquiries during the course of her employment with SL in January and February 2020. On 6, 7 and 10 February 2020 the applicant took leave. On 11 and 12 February 2020 the applicant took carer’s leave. On 11 February 2020 the applicant alleges that she received a voice mail from the Second Respondent criticising the applicant for not making herself available to answer a phone call. On 11 February 2020 the applicant made a complaint to SL via text message. On 13 February 2020 the applicant returned to work. She alleges that she spoke with Iain Roots and repeated earlier complaints and that information was conveyed to Justin Ireland. She was directed to attend a meeting. A dismissal meeting was held on 13 February 2020 attended by the applicant, Justin Ireland, Jon Spelman and Iain Roots. The applicant alleges that Ireland and the applicant discussed the subject matter of the applicant’s complaints. The applicant alleges that her employment was terminated without notice. On 28 April 2020 the applicant commenced proceedings against the First Respondent claiming adverse action against the applicant by terminating her employment for prohibited reasons in contravention of sections 340, 351 and 352 of the FW Act. The relevant decision maker with respect to her dismissal was Justin Ireland the Second Respondent. On 17 September 2020 SL sent the applicant an email attaching a letter addressed to the applicant’s solicitor[3] headed “Without Prejudice Save as to Costs” the content of which included an offer to compromise the claim, attached CCTV footage inter alia and the following:“Please note should this matter not settle in accordance with this letter that we intend to refer to the CCTV (and three formal complaints) to the Legal Services Commission concerning whether your client’s conduct … is fitting conduct for a legal services professional…”[3] Affidavit of Lea Bethune filed 23 November 2020 Exhibit LFB1 The letter bears the names of Ireland and Spelman as signatories save that it appears to have been signed “per Roots” on behalf of Ireland. COERCION CLAIM

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The applicant argued that the Second Respondent was the decision maker who effected the dismissal of the applicant and that he did so for a prohibited reason. Further that he authored and directed Spelman to send the letter and he did so with intent to coerce the applicant to agree to withdraw the proceedings. CONCLUSION I am satisfied that the applicant has established that reasonable grounds exist for believingthat the communication contained within the letter dated 17 September 2020[14] demonstrates that the First and/or Second Respondent exerted unfair or illegitimate pressure upon the applicant within the context of settlement negotiations to accept an offer and the “without privilege” claim by the Respondents cannot be relied on in that regard. [14] “Please note should this matter not settle in accordance with this letter that we intend to refer to the CCTV (and three formal complaints) to the Legal Services Commission concerning whether your client’s conduct ….is fitting conduct for a legal services professional……” It is arguable that the letter of 17 September 2020 contains a communication that was made in furtherance of the commission of an act rendering a person liable to a civil penalty (such as coercion) or a communication affecting a right of the applicant however I find the latter unnecessary to decide. I am satisfied that it is appropriate in the interests of the administration of justice that the Court exercise its discretion and make a declaratory order for discovery in the terms sought by the applicant. The First Respondent is required to file an affidavit of documents particularising all electronic documents in the possession and/or under the control of the First Respondent that were sent to, received from, or were between the directors or employees of Strategic Lawyers Pty Limited and Steven Hodgson which concerned the letter sent from the First Respondent to the Applicant on 17 September 2020 containing any reference or part reference to Lea Bethune or this proceeding.

Ratio Decidendi

Legal Principle Established

The Respondents contend that the applicant made a “bare but extremely serious assertion that the letter contained a threat and the letter ‘is prepared in furtherance of an offence or the commission of an act that renders a person liable to a civil penalty being an allegation of contravening the FW Act.’” It was argued that the applicant’s affidavits do not justify the request for discovery nor explain how the documents are relevant.CONSIDERATION In Harwood v The Trustee of the Property of John Mervyn Harwood [2015] FCCA 1058 (28 April 2015) Manousaridis J in relation to the purpose of discovery said at [29]:[29] … The principal purpose of discovery is to require each party to disclose documents in his or her possession or control that are relevant to the proceedings. That, in turn, increases the probability that a court will have before it all relevant evidence and thus make a decision that is based on the truth of the matter; and, by requiring disclosure of documents before trial, discovery affords the parties a better opportunity to assess the truth of the matter for themselves, and, therefore, be in a position to make a more reasoned decision about the issues that should be tendered to the court for its determination and, indeed, whether the proceeding should be resolved without the expense, delay, stress, and aggravation of a hearing. The starting point for this application is subsection 45 (1) of the FCC Act which provides that discovery is “not allowed in relation to proceedings in the Federal Circuit Court of Australia unless the Federal Circuit Court of Australia or a Judge declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery”. It is common ground that the First Respondent sent the letter dated 17 September 2020 to the applicant in circumstances where the applicant had commenced proceedings for relief under the FW Act. The letter contains the signature of Jon Spelman Chief Information Officer for SL. Spelman is not a legal practitioner nor the Principal nor Director of SL. The documents leading up to and including the 17 September 2020 are relevant as to who was involved in drafting the letter and/or sending the letter and are likely to prove or disprove whether the First Respondent threatened to refer the applicant to the Legal Services Commission regarding her professional conduct should she not “settle the matter in accordance with this letter.” Similarly with respect to the Second Respondent who at the time was not legally represented in the proceedings the documents leading up to and including the 17 September 2020 are likely to prove or disprove whether the Second Respondent was involved in drafting and/or sending the letter, who signed the letter of behalf of the Second Respondent, the Second Respondent’s knowledge of the content of the letter and why the letter was signed on his behalf by another presumably Iain Roots. The Second Respondent was at all material times the Principal and Director for SL and the decision maker with respect to the applicant and her employment.