FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Burke v Plush Think Sofas Pty Ltd [2024] FedCFamC2G 94
File number(s): MLG 1812 of 2022 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 9 February 2024 Catchwords: INDUSTRIAL LAW – PRACTICE AND PROCEDURE – interlocutory application to set aside Notice to Produce – consideration of r 16.16 of Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – consideration of whether documents requested are specific and relevant – consideration of whether Notice amounts to request for discovery – consideration of whether documents could be requested by application for discovery or subpoena – exercise of discretion under r 1.07 of Rules – application granted with respect to one category of documents – application otherwise dismissed. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), ss 176, 190
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 1.07, 16.16
Uniform Civil Procedure Rules 2005 (NSW), rr 21.10, 34.1
Cases cited: Connelly v Bluescope Steel (AIS) Pty Ltd (No 3) [2020] FCCA 2902
Heraud v Roy Morgan Research Ltd (No 2) [2016] FCCA 1797
Homes v Australian Carers Pty Ltd [2023] FedCFamC2G 711
Lift Shop Pty Ltd v Next Level Elevators Pty Ltd (No 2) [2023] FedCFamC2G 268
McAlister v Yara Australia Pty Ltd [2019] FCCA 2013
Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869
Self Care Corporation Pty Ltd v Green Forest International (No 4) [2021] FCCA 1504
Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corp Ltd [1984] 1 NSWLR 710
Division: Division 2 General Federal Law Number of paragraphs: 43 Date of last submission/s: 30 January 2024 Date of hearing: 30 January 2024 Place: Melbourne Counsel for the Applicant: Mr R Glavas Solicitor for the Applicant: Gadens Counsel for the Respondents: Mr M Seck Solicitor for the Respondents: HintonFlynn Legal ORDERS
MLG 1812 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHRISTOPHER BURKE
Applicant
AND: PLUSH-THINK SOFAS PTY LTD
First Respondent
ANTHONY JOHN SCALI
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
9 FEBRUARY 2024
THE COURT ORDERS THAT:
1.Paragraph 8 of the Notice to Produce dated 17 November 2023 issued by the respondents and directed to the applicant be set aside.
2.The balance of the Notice to Produce is returnable before Deputy Chief Judge Mercuri on 7 March 2024 at 9:30am.
3.The Application in a Proceeding to set aside the Notice to Produce filed by the applicant on 5 December 2023 otherwise be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to…
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- Case
- [2024] FedCFamC2G 94
- Decision Date
CaseChat Overview and Summary
The court examined the requirements of rule 16.16 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) to determine if the documents requested were specific and relevant. The court concluded that the documents requested in paragraphs 1 to 7 of the Notice were readily identifiable and specific, as they were described in clear terms and were relevant to the proceedings. However, the court found that paragraph 8 of the Notice, which sought invoices issued by the applicant or 'entities under his control', was not specific enough and should be set aside. The court also considered whether the Notice amounted to an inappropriate request for discovery, and whether the documents could be obtained through an application for discovery or a subpoena. Ultimately, the court determined that it would not be in the interests of justice for the respondents to be required to make a fresh application for an order for discovery or to issue a subpoena.
Based on the findings, the court granted the application to set aside the Notice to Produce with respect to the documents sought in paragraph 8, and dismissed the application in all other respects. The court's decision was grounded in the overarching purpose of the Rules and the need to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. The court also took into account the statutory framework that prohibits discovery without an express order of the court and a declaration by the court that it is in the interests of the administration of justice to order discovery.
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Legal Principle Established
In addition, in EFM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1609, the court noted that:57.The authorities are clear that notices to produce should not be used as an alternative to an application for discovery or for the purposes of “fishing” for evidence or documents …58.Further… the fundamental principle which drives the statements of principle concerning notices to produce (and subpoenas) is “that the Court should not permit its processes to be abused and should guard against the use of its compulsive powers as an instrument of oppression …CONSIDERATION AND FINDINGS On balance, and accepting that rule 16.16 must be read in the context of a statutory framework that prohibits discovery without an express order of the court and a declaration by the court that it is in the interests of the administration of justice to order discovery (and therefore the reasons in Patonga Beach must be read with some caution), I nevertheless find that Lift Shop is largely distinguishable from the facts in this case. Moreover, I also accept that the term ‘specified’ in rule 16.16 means ‘described’ or ‘identified’. Unlike the Notice in Lift Shop which sought production of documents ‘recording or referring to’ various things, the Notice in this case requires production of express documents which are readily identifiable, save for paragraph 8 which I deal with below. Nor do I accept that the Notice in this instance could properly be described as fishing for evidence.Whether documents requested are specific and relevant Unlike the documents sought in Lift Shop, the documents sought in paragraphs 1 to 7 of the Notice served by the respondents are, in my view, readily identified and specific. Paragraph 1 requires the production of bank statements of the applicant for a specified period. That period is relevant as it is by reference to the applicant’s date of termination. Similarly, paragraph 2 requires production of pay slips regarding payments made to the applicant in accordance with a document expressly referred to the applicant’s affidavit filed in these proceedings. These documents are similarly identifiable. The same can be said for each of the documents in paragraphs 3 to 7 inclusive. Whilst rule 16.16 requires documents sought to be specified, that does not mean that where there is more than one document required of the same type that each document be individually identified. Indeed, it would not be possible for the respondents to have done so in circumstances where they do not have access to those documents. Paragraph 8 does not fall into the same category. Paragraph 8 requires invoices issued by the applicant or ‘entities under his control’. It is not clear from that paragraph what is meant by an entity under his control. For example, whether it means an entity in which he has legal control or whether it extends to an entity in which he has no legal control, but in respect of which he has other influence. To that extent, the documents sought at paragraph 8 of the Notice do not fall within the scope of rule 16.16 and should be set aside.