Conradsen v Carpentaria Land Council Aboriginal Corporation (No 2)
[2021] FedCFamC2G 266
Federal Circuit and Family Court of Australia
(DIVISION 2)
Conradsen v Carpentaria Land Council Aboriginal Corporation (No 2) [2021] FedCFamC2G 266
File number(s): BRG 6 of 2021 Judgment of: JUDGE EGAN Date of judgment: 15 November 2021 Catchwords: PRACTICE AND PROCEDURE – Notice to Produce unduly burdensome and unproductive of documents of relevance to the proceeding – Notice to Produce set aside. Cases cited: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 61. Division: Division 2 General Federal Law Number of paragraphs: 8 Date of last submission/s: 15 November 2021 Date of hearing: 15 November 2021 Counsel for the Respondent: Ms Moody Solicitor for the Respondent: Mr Riggall of Thynne Macartney Applicant: Mr Conradsen ORDERS
BRG 6 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KIMM OLE CONRADSEN
Applicant
AND: CARPENTARIA LAND COUNCIL ABORIGINAL CORPORATION; INDIGENOUSCORPNO. 268
Respondent
order made by:
JUDGE EGAN
DATE OF ORDER:
15 NOVEMBER 2021
IT IS ORDERED THAT:
1.The Notice to Produce given on behalf of the Applicant on or about 3 November 2021 be set aside.
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 record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN:
At the commencement of the hearing the trial of this matter, application was made on behalf of the respondent to seek leave to file and serve an Application in a Proceeding which sought an order that the applicant’s Notice to Produce (‘NTP’) dated 3 November 2021, being Annexure A to that application, be set aside. The Court granted such leave, the application having been foreshadowed about seven days ago.
The Notice to Produce was marked as Exhibit 4 and was as follows:
Ms Moody of Counsel relied upon a judgment of Justice Collier in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 61 at [6] in support of the following relevant submissions in support of the application:
(a)None of the documents sought in the NTP has any “apparent relevance” to a material fact in issue in the proceedings.
(b)The NTP is oppressive. The employment information sought in Category A alone is sweepingly extensive. Categories B and C are also extensive in scope, and all three categories are unlimited as to time.
(c)The NTP fails to identify with adequate specificity which documents the recipient is required to produce.
(d)The Court has already made a comprehensive mutual discovery order on 24 March 2021; pursuant to which affidavits of discoverable documents have been filed; mutual discovery has taken place. The applicant has at no time challenged in Court the completeness of the respondent’s discovery.
The Court agrees with the submissions made on behalf of the respondent. The lateness of the giving of the NTP is a relevant factor, as is the fact that the documents sought to be produced relate to issues which are not directly relevant to the claims made by the parties in the proceeding. Some documents relate to persons who are not intended to be called as witnesses by the applicant or the respondent.
It was submitted by the applicant that the documents sought would go to establishing circumstances within the respondent’s work environment which would support the proposition that there was a lack of oversight and supervision, such that a culture of bullying was able to prevail. As earlier indicated to the parties by the Court, oral evidence going to such question is yet to be adduced, the admissibility of such evidence to be considered at the time that it is sought to be adduced. The Court does not see any real benefit in the respondent producing a vast quantity of documentation, unlimited in time, which has but a tangential relevance to issues raised by the applicant’s claims.
The Court finds that it would be unduly burdensome upon the respondent for the documents sought in the NTP to be produced. The relevance of such documents has not been established to the Court’s satisfaction.
The NTP dated 3 November 2021, in its entirety, is set aside for the reasons advanced on behalf of the respondent.
It is so ordered.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 15 November 2021
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