Christine McDonnell v Australia and New Zealand Banking Group Limited T/A ANZ

[2012] FWA 9787

[2012] FWA 9787

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christine McDonnell
v
Australia and New Zealand Banking Group Limited T/A ANZ
(U2012/9510)

COMMISSIONER BISSETT MELBOURNE, 19 NOVEMBER 2012

Application for unfair dismissal remedy - orders for the production of documents.

[1] On 26 October 2012 Fair Work Australia issued an order addressed to an appropriate officer of the Australia and New Zealand Banking Group Limited T/A ANZ (ANZ or the Respondent) requiring the production of five categories of documents. The order was made on the application of Ms Christine McDonnell (the Applicant). The documents are sought in relation to an application for relief from unfair dismissal filed by the Applicant.

[2] The Respondent objects to the order being made in the form sought and, as a result of correspondence received from the Respondent, the order was set aside pending a hearing of the objection.

[3] The objection was heard on 12 November 2012. At the hearing it was agreed by representatives for the Applicant and the Respondent that the issues for determination are:

1. The scope of the order to produce documents to Fair Work Australia and, in particular, the inclusion in the order of the documents in categories 4 and 5;

2. If Fair Work Australia should issue an order (the confidentiality order) addressed to the Applicant and her legal representatives requiring that documents produced arising from an order under 1 above be kept confidential and, following conclusion of the unfair dismissal application, destroyed; and

3. Re-programming of the hearing date currently scheduled for December.

[4] The Applicant was represented with permission by Mr Tracey of counsel and the Respondent was represented with permission by Mr Blake.

Scope of the order to produce documents etc.

[5] The original order issued by Fair Work Australia went to five categories of documents. No objection is taken to an order being issued with respect to categories 1-3 in the original order. The Respondent takes objection to categories 4 and 5 of the original order.

[6] Mr Tracey for the Applicant submits that category 4 and 5 documents are necessary to enable the Applicant to defend herself against ‘allegation 1’ in the termination letter of 10 August 2012. The category 4 and 5 documents will, along with the category 1 documents, show the account transactions in conjunction with the warrant vouchers. That is, the category 4 and 5 documents will show the transactions that flowed from the manual completion of the warrant vouchers.

[7] The category 4 and 5 documents relate to the period early in the Applicant’s employment and relate to the training she was given at the time by another employee on the use of the warrant vouchers.

[8] Mr Blake for the Respondent says that the documents sought in categories 4 and 5 are not relevant to the conduct alleged to have occurred. This is particularly so with respect to category 4 as no allegation has been made of conduct of the Applicant with respect to the named account.

[9] As for category 5 Mr Blake submits that the documents sought are not relevant as they will not go to any oral instruction given to the Applicant and the evidence as to conduct with respect to the named account will be provided through the documents in category 1 (the warrant vouchers).

[10] The notice of termination of employment given to the Applicant states, in part, that the Applicant acted contrary to the instruction given to her on 11 July 2011 in that she has repeatedly taken funds from the ANZ general ledger and deposited these into customers’ accounts. 1 This is ‘allegation 1’ to which Mr Tracey refers and to which he says the documents in categories 4 and 5 are relevant.

[11] The basis of the exercise of the discretion to issue an order to produce documents is uncontentious. It is well enunciated in the decision of Munro J in Clerks’ Case. 2

[12] There is no claim that the orders sought by the Applicant would be onerous or are a fishing expedition. The disputed categories go to the question of relevance. Principles governing when leave ought to be granted to issue subpoenas, including those principles that deal with relevance were considered by Greenwood J in McIlwain v Ramsey Food Packaging and ors 3 where his Honour found that:

(d) The documents for production must be identified with reasonable particularity. The category of documents must not be so wide as to be oppressive.

(e) The documents must be relevant to an issue raised on the pleadings and be used to elicit documents to support the applicant’s existing case. It cannot be used for purposes of “fishing” or for the purpose of determining a preliminary question as to whether the party has a supportable case, or to investigate the character of the opposing party’s evidence.

(f) The test for relevance does not require that a party demonstrate direct relevance to the contest between the parties. Rather, the documents must have some potential relevance to the pleadings as they stand...

(g) The same notion was expressed in Small and Dorajay Pty Limited v Aristocratic Leisure Limited in requiring the existence of a legitimate forensic purpose for the production of documents.

(h) ...the question of whether a subpoena should go can conveniently be addressed by reference to two questions. First, does the material sought by the subpoena have an apparent relevance in a descriptive or adjectival sense rather than a substantive sense? Does the subpoena have a legitimate forensic purpose to this extent from the perspective of the party issuing the subpoena? Secondly, does the subpoena cast a serious and unfair burden or prejudice upon the respondent to the subpoena?

(i) ...adjectival relevance looks toward the possibility whether the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings. 4

[footnotes omitted]

[13] The consideration of relevance must be viewed from the perspective of the Applicant as the party seeking the order. In this case the Applicant says the documents in categories 4 and 5 are relevant with respect to allegation 1 as summarised above.

[14] To the extent that the documents sought by the Applicant show the effect of the use of the warrant voucher, including its reflection in the recipient account, and evidence the use of them by the Applicant dating back to the time around the commencement of her employment, the documents in category 5 may be relevant. However, I am pressed to understand the relevance of the documents in category 4 as they do not appear to relate to any allegation against the Applicant. I therefore do not consider an order should be made for their production. To the extent that the documents in category 5 do relate, in that they refer to a company named in a specific allegation against the Applicant, I consider that an order should be made for their production.

[15] On this basis the order sought with respect to category 4 is rejected. The order sought with respect to category 5, along with categories 1, 2 and 3 will be issued.

Confidentiality

[16] The Respondent seeks that a confidentiality order be issued with respect to any documents produced as a result of an order issued by Fair Work Australia arising from this decision.

[17] Mr Tracey opposes such an order on the grounds that he says the production of documents to a court by way of a subpoena carries with it an implied undertaking whereby the person in receipt of the documents agrees not to use the documents for purposes outside the litigation. Whilst the implied undertaking acts in relation to the courts Mr Tracey argues that Fair Work Australia has regularly applied principles that apply in the courts to procedural matters such as this.

[18] Mr Tracey submits that the Applicant and her advisers are bound as a matter of law by the implied undertaking, which means that the Respondent’s information is protected and there is no need for an order of the sort suggested by the Respondent. In any event Mr Tracey says he is prepared to give an express undertaking in the form of the implied undertaking.

[19] Mr Tracey relies on the decision of Perram J in Gill v Fairfax Media Limited (No. 1) 5 in support of his argument that it is only in exceptional circumstances where there are competitive commercial parties in trade that such an order as that sought by the Applicant in this matter would be granted.

[20] Mr Blake argues that there is no certainty that the implied undertaking as it applies to documents produced to a court has application in Fair Work Australia. Whilst Mr Blake does not quibble with the proposition that Fair Work Australia does have regard to the principles that apply in the courts he says that it does not follow that the implied undertaking operates as a matter of law with sufficient certainty to protect the Respondent in this matter.

[21] Mr Blake submits that there have already been allegations with respect to breaches of confidentiality against the Applicant and it is appropriate that the obligation on the Applicant on production of the documents be clear.

[22] Mr Blake submitted into evidence an affidavit of Mr Darren Wilson which attests to the type of information that will be released should the order to produce be made and the expectations of confidentiality of clients of the Respondent. The affidavit also outlines the potential effect of the information contained in the documents ordered to be produced on the Respondent. There was no objection raised to the affidavit by Mr Tracey. Mr Blake argued that all the prejudice rests with the Respondent if the documents were released in any way. In this case he says the information is third party information held by the Respondent, a financial institution, of its clients and in that respect this case can be distinguished from the observations in Gill.

[23] There is no disagreement that documents produced to a court by way of a subpoena or discovery carry with them an implied undertaking as to confidentiality and use of those documents.

[24] I do not understand there to be any disagreement between the parties that Fair Work Australia generally sees itself as bound by the principles enunciated in courts in relation to procedural matters such as this.

[25] There is however a difference between Fair Work Australia seeing itself as bound by the principles enunciated in court and this being a matter of law that extends the implied obligation to the party receiving the documents as a result of the order made by Fair Work Australia. Even if Fair Work Australia acts in accordance with established court principles this does not mean that the parties to proceedings in Fair Work Australia see themselves or are so bound by the implied undertaking.

[26] As to the existence of the ‘note’ on the standard form of the order to produce documents made by Fair Work Australia that ‘all documents produced in compliance with this order may only be used for the purpose of this unfair dismissal application. They cannot be lawfully used for any other purpose except with the written authorisation of FWA’, it is a note. I am not convinced this overcomes any question as to the application of the implied undertaking to documents produced to Fair Work Australia as a result of the issuing of an order to produce documents.

[27] The existence of the implied undertaking in relation to court proceedings (and Fair Work Australia proceedings to the extent it does apply) does not preclude the giving of express undertakings or the making of explicit orders as to how documents may be treated and who may see them. This much is clear from the decision in Hearne v Street. 6

[28] Documents produced by a party in accordance with an order such as the order under consideration here are produced pursuant to Fair Work Australia’s powers to inform itself by requiring a person to provide copies of documents or records, or to provide other information to FWA (s.590(2)(c)). Fair Work Australia may make an order prohibiting or restricting publication of such material if it is desirable to do so given the confidential nature of the material (s.594).

[29] The documents sought to be produced by the order are documents that will contain personal and private details of clients of the Respondent. I have no doubt that those clients provided the information with a view that it would be protected by the Respondent. I do not think they would have had in their minds that it may be produced as a result of an order issued by Fair Work Australia. I accept that it is highly sensitive information in both a commercial and personal sense.

[30] As the majority expressed in Hearne,

The point of insisting on an express undertaking, commonly employed in relation to documents which it is particularly desired to keep secret, is to bring explicitly home to the minds of those giving it how important it is that the documents only be used for the purpose of proceedings. 7

[31] I am mindful that there are, in the substantive case to which these documents are relevant, allegations of breaches of confidentiality by the Applicant - which will be subject to the proceedings - and against an officer of the Respondent - which has been subject to correspondence between the parties.

[32] In these circumstances and given the nature of the documents sought and the information contained in those documents I intend to grant the order sought by the Respondent albeit in a modified form. In particular the documents produced shall be able to be retained by the Applicant and her representatives until 21 days after the finalisation of the matter (including any proceedings arising from the decision at first instance) by Fair Work Australia. Either party will have liberty to apply to vary the order with respect to the time of destruction of the documents following the making of the decision at first instance.

[33] The effect of this alteration is that, subject to any further order, the documents shall have to be destroyed 21 days after the decision at first instance unless an appeal is instituted by either party in which the case the documents shall have to be destroyed within 21 days of the appeal decision unless that decision remits the matter for further decision, etc.

[34] The amended confidentiality order shall be issued in conjunction with the order to produce documents.

Further programming

[35] It is evident that this matter shall not be ready in time for hearing in the December roster. This is the fault of no party but is a function of the need to resolve issues associated with the orders to produce. All directions associated with the proposed December hearing date are hereby set aside.

[36] Fresh directions shall be issued along with a notice of listing for 2013 as soon as possible. The party’s submissions as to the time required shall be taken into account in issuing those directions.

Conclusion

[37] An order for production of documents as set out above shall be issued in conjunction with this decision. That order shall require the return of the documents within two days.

[38] An order as to confidentiality of the documents so produced is also issued in conjunction with this decision. That order shall require that the documents so produced be destroyed 21 days after the conclusion of all proceedings, including any appeal proceedings.

COMMISSIONER

Appearances:

J Tracey, of counsel, for the Applicant.

K Blake for the Respondent.

Hearing details:

2012.

Melbourne:

November 12.

 1   The precise wording of the finding is set out in the notice of termination of employment, attachment A to the Form F2 lodged by the Applicant.

 2   AIRC, Print H2892 (17 June 1988).

 3 [2005] FCA 1233.

 4 [2005] FCA 1233, [35].

 5 [2012] FCA 964 (4 September 2012).

 6 (2008) 235 CLR 125.

 7 (2008) 235 CLR 125, 162 [116] per Hayne, Heydon and Crennan JJ.

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