Doherty v Prospa Advance Pty Ltd
[2024] FedCFamC2G 391
•30 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Doherty v Prospa Advance Pty Ltd [2024] FedCFamC2G 391
File number(s): SYG 1155 of 2023 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 30 April 2024 Catchwords: INDUSTRIAL LAW – Practice and procedure – application by respondent to set aside notice to produce issued by the applicant to the respondent – whether when determining whether to set aside the notice to produce it is relevant to determine whether the applicant had sufficiently articulated a claim for relief based on a breach of s 62(1) of the Fair Work Act 2009 (Cth) – relevant to so determine – whether the applicant had sufficiently articulated a claim for relief based on s 62(1) – applicant has not done so – notice to produce set aside – discussion about the meaning of the “overarching purpose” as provided for in s 190(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth). Legislation: Constitution (Cth) s 71
Fair Work Act 2009 (Cth) ss 44(1), 61(3), 62(1), 340(1), 539, 545, 546
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191, 192(1)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.06(2), 16.16
Federal Court Rules 2011 (Cth) rr 16.02(1)(d), 30.28
Cases cited: Australian Building & Construction Commissioner v CFMEU & Ors (No.5) [2018] FCCA 1100
Berry v CCL Secure Pty Ltd [2020] HCA 27
Letang v Cooper [1964] EWCA Civ 5; [1965] 1 QB 232
Lift Shop Pty Ltd v Next Level Elevators Pty Ltd (No 2) [2023] FedCFamC2G 268
The Commissioner for Railways v Small (1938) 36 SR (NSW) 564
Trade Practices Commission v CC (NSW) Pty Ltd (No 4) [1995] FCA 1418; (1995) 58 FCR 426
Wong v Sklavos [2014] FCAFC 120
Division: Fair Work Number of paragraphs: 50 Date of hearing: 15 April 2024 Place: Sydney Counsel for the Applicant: Mr G Fredericks, by video Solicitor for the Applicant: Gibson Howlin Lawyers Solicitor for the Respondent: Ms V Otavski of BlackBay Lawyers ORDERS
SYG 1155 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ELEANOR ROSEMARY DOHERTY
Applicant
AND: PROSPA ADVANCE PTY LTD ACN 154 775 667
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
30 APRIL 2024
THE COURT ORDERS THAT:
1.The notice to produce documents communicated by letter dated 22 February 2024 from the applicant’s solicitor to the respondent’s solicitor is set aside.
2.The matter be listed for a directions hearing at 9:30 am on 29 May 2024.
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
INTRODUCTION
The respondent applies for an order that a purported notice to produce issued by the applicant be set aside.
To be in a position to determine that application, it will be necessary to set out the claims the applicant makes in her points of claim (PoC), and the procedural history of the matter.
APPLICANT’S CLAIMS AND PROCEDURAL HISTORY
The applicant, who was an employee of the respondent from around 18 January 2022 until 5 April 2023, when the respondent terminated her employment, makes two broad claims. The first is that the respondent breached s 62(1) of the Fair Work Act 2009 (Cth) (FW Act), being a “National Employment Standard” within the meaning of s 61(3) of the FW Act and, for that reason, contravened s 44 of the FW Act. The applicant alleges as follows:
(a)From 18 January 2022 until 15 November 2022 the applicant was the only employee working in the respondent’s product marketing function, working on both capital and non-capital products.[1]
[1] PoC, [7]
(b)From 18 January 2022 to 11 April 2023:[2]
[2] PoC, [9]
(i)the respondent regularly required the applicant to work approximately 70 hours per week, which included work on the weekends and on public holidays;
(ii)the volume of work the respondent required the applicant to perform was substantially more than could be completed in a 38 hour week; and
(iii)the respondent did not pay the applicant any regular remuneration in addition to the amounts to which she was entitled under her employment contract.
(c)Between March and November 2022 the applicant spoke with a Ms K to identify the significant hours that she was required to work to complete her role.[3]
(d)In November 2022 the respondent engaged two employees to assist the applicant, and in respect of which, therefore, the applicant became their direct manager.[4] The applicant’s contract of employment did not, however, provide that the applicant would be the direct manager of any employees, and the respondent did not pay the applicant any additional remuneration for becoming the direct manager of the two employees; and, in any event, the respondent’s employment of the two employees did not reduce the hours the applicant was required to work.[5]
(e)From November 2022 to April 2023 the applicant continued to raise with Ms K the significant hours she was being required to work, but less frequently because the applicant believed that the hiring of the two new employees would eventually cause her workload to ease.[6]
(f)The additional hours the applicant was required to work were unreasonable (Unreasonable Hours).[7]
(g)As consequence of these matters the respondent breached s 62(1) of the FW Act and, for that reason, contravened s 44 of the FW Act for each week the applicant worked Unreasonable Hours.[8]
(h)The applicant developed adverse health consequences because she had worked the Unreasonable Hours.[9]
[3] PoC, [11]
[4] PoC, [12], [13]
[5] PoC, [14]-[16]
[6] PoC, [17]
[7] PoC, [18]
[8] PoC, [19]
[9] PoC, [20]
The second claim the applicant makes is that, by terminating the applicant from her employment, the respondent contravened s 340(1) of the FW Act. The applicant alleges as follows:
(a)The applicant’s having raised with Ms K the hours the applicant was working constituted the making of complaints in relation to her employment.[10]
(b)On 6 March 2023 Ms K conducted a performance review which itself constituted adverse conduct.[11]
(c)On 4 April 2023 the applicant attended a meeting in which a staff member of the respondent told the applicant the business was cancelling the entire product marketing function; told the applicant the respondent had not been able to find alternative redeployment options for the applicant; and gave the applicant a letter regarding her potential redundancy.[12]
(d)Contrary to what the staff member told the applicant at the meeting of 4 April 2023, there was at least one option for a redeployment which was not offered to the applicant.[13]
(e)On 5 April 2023 the respondent terminated the applicant’s employment because the applicant exercised workplace rights and, by so doing, took adverse action against the applicant in contravention of s 340(1) of the FW Act.
[10] PoC, [24], [25], [26]
[11] PoC, [28]
[12] PoC, [34]
[13] PoC, [35]
By letter dated 6 September 2023, pursuant to orders I made in chambers on 21 August 2023, the respondent’s solicitor requested particulars of allegations made in the PoC. Relevant to the questions I consider in these reasons is the request for particulars to paragraph 9 of the PoC. I first set out paragraph 9:
During the period 18 January 2022 to 11 April 2023:
(a) the Respondent regularly required the Applicant to work approximately 70 hours per week including on weekends and most public holidays;
Particulars
1. Further particulars will be provided following discovery.
(b) the volume of work required to be performed by the Applicant was substantially more than what could completed [sic] within a 38-hour week; and
(c) the Respondent did not pay the applicant any regular remuneration in addition to the amounts set out in paragraphs 3 and 4 above.
The respondent’s solicitor’s request in relation to paragraph 9(a) was as follows:
In relation to sub-paragraph 9(a) of the Points of Claim, it is insufficient for the Applicant to simply specify that further particulars will be provided following discovery. The pleaded allegations should be particularised now so that our client knows the case it has to meet.
Accordingly, in respect of the allegation pleaded in paragraph 9(a) and for the period 18 January 2022 to 11 April 2022, please particularise:
A. Each date on which it is alleged that the Respondent required the Applicant work (specifying which):
(i) approximately 70 hours per week;
(ii) on weekends; and
(iii) on public holidays.
B. Whether the requirement on each occasion (specifying which) was communicated verbally or partly verbally;
C. To the extent that any requirement was communicated verbally or partly verbally, please particularise:
(i) by whom the requirement was communicated;
(ii) when the requirement was communicated;
(iii) who was present at the time the requirement was communicated;
(iv) where the conversation(s) occurred; and
(v) the substance of what was said and by whom.
D. To the extent that any requirement referred to in paragraph 9(a) was communicated in writing or partly in writing, please provide a copy of the relevant document(s).
The applicant’s solicitor replied by letter dated 13 September 2023. Before responding to the specific request for particulars, the applicant’s solicitor contended as follows:
At the outset, we respectfully remind you of section 190(1) of the Federal Circuit and Family Court of Australia Act 2021 (FCFCOA Act) which identifies that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes as quickly, inexpensively, and efficiently as possible. This case is fundamentally quite simple, and the quantum and nature of the particulars you have sought is inconsistent with that purpose. Indeed, the bulk of the particulars sought, in our view, seek particulars of matters particularly within the knowledge of your client.
The applicant’s solicitor responded as follows to the request for particulars of paragraph 9(a) of the PoC:
6.We disagree. Firstly, the allegation which the respondent is required to meet is clearly set out. Further, where material is peculiarly and solely within the control and custody of the employer, it is entirely appropriate for further particulars to be provided following disclosure. For instance, while our client has a good recollection of the hours she worked, and conversations she had with [Ms K], the records maintained by your client will provide specific details such as dates and times of emails send, emails themselves, messages sent on internal communications tools, login times on work computers, calendar entries etc. As you would appreciate, our client has no access to this material. Until that material is provided, then there is little point attempting to provide the specific particulars that you are now seeking.
7. Your client is plainly able to understand the case that it is required to meet – that is, that our client was required to and did work hours well in excess of what was reasonable as alleged in the Claim, and that ultimately adverse action was taken against her in breach of the FairWork Act.
The respondent’s solicitor responded by letter dated 2 October 2023 in which she advanced detailed arguments in support of the contention that the applicant had not properly particularised the allegations made in the PoC, and that the applicant’s solicitor had not provided an adequate response to the respondent’s solicitor’s request for particulars, including to the request for particulars of paragraph 9(a) of the PoC. The respondent’s solicitor concluded her letter as follows:
Should the Applicant insist on denying the Respondent the necessary further and better particulars requested at paragraphs 4(A) – (F) above, and instead seek rely [sic] on the process of discovery to be able to particularise claims which the Applicant ought be able to particularise now in an attempt to establish the materials [sic] facts to ground a claim under section 62 of the FW Act and the relevant provisions under the general protections regime of the FW Act, this letter and our earlier correspondence will be relied upon to seek costs, including on an indemnity basis.
The applicant’s solicitor sent a letter dated 18 October 2023 in which she advanced detailed arguments against the arguments the respondent’s solicitor advanced in her letter dated 2 October 2023. The letter concluded with the following:
Engaging in disputes regarding the provision of particulars, the possible application to strike out the application or for that matter regarding disclosure is not consistent with section 190(1) of the Federal Circuit and Family Court of Australia Act 2021 (the Act) which identifies that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes as quickly, inexpensively, and efficiently as possible.
Rather, consistent with the obligation of the parties to conduct proceedings in a manner consistent with this overarching purpose, we suggest that the way to properly progress these proceedings is that that the respondent file its defence and that the matter be referred to mediation.
We enclose proposed consent orders to this effect. Can you please advise by 4pm, Monday, 23 October 2023 whether your client consents to these orders.
The dispute about particulars was not resolved between the parties. Instead, the parties requested that I make orders in chambers requiring the respondent to file a defence, and to refer the matter to mediation. On 26 October 2023 I made orders to that effect in chambers, pursuant to which, on 20 November 2023, the respondent filed its defence, and the parties participated in a mediation. The parties were unable to resolve their dispute.
On 22 February 2024, after the mediation had concluded, the applicant’s solicitor sent the following letter (Notice to Produce) to the respondent’s solicitor:
We refer to the above matter and to the Directions listing of 5 March 2024.
In accordance with Rule 16.16 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, by way of Notice to Produce, we require the following documents to be provided on or before the next Directions listing of 5 March 2024:
1. A copy of any “.pst” file relating to any email address operated by the Applicant, including in particular the email address [email protected].
2. A copy of all emails sent and received by the Applicant from the email address [email protected] between the period 18 January 2022 and 11 April 2023.
3. A copy of the calendar maintained by the Applicant on “outlook” relating to the email address [email protected] from the period 18 January 2022 and 11 April 2023, including copies of any deleted appointments that had been maintained by the Applicant on that outlook calendar.
4. A copy of all messages sent and received, including associated time stamps, via the “slack” messaging system for the period 18 January 2022 and 11 April 2023.
5. A copy of any records maintained on or by the “slack” messaging system as to the status of the Applicant on that system, including in particular, records of times that she was “online” or otherwise active as indicated on the “slack” system.
6. A copy of any records maintained by the Respondents on their IT systems as to dates and times that the Applicant was signed into her windows operating system for the period 18 January 2022 and 11 April 2023.
7. A copy of the “product roadmaps” prepared and maintained for the:
a. New Zealand line of credit;
b. Business Account, and
c. Overdraft.
8. A copy of the Product Marketing Trello Boards prepared and maintained for the:
a. New Zealand line of credit launch, and
b. Business Account launch
If you require further time to comply with the Notice, we are happy to consider a series of directions that provide for a date for compliance, and then dates following for the filing and service of evidence.
We await your response.
By letter dated 2 March 2024 the respondent’s solicitor contended that the documents called by the Notice to Produce were too broad, and that, in any event compliance with its terms would be oppressive; and invited the applicant’s solicitor to withdraw the Notice to Produce. The applicant’s solicitor responded by letter dated 5 March 2024 in which the applicant’s solicitor makes three broad contentions. The applicant’s claim “involves a claim of unreasonable work hours”, and that “[s]uch a claim is clearly pleaded”; the respondent continues to assert the applicant’s pleading “lacks particularisation and now dispute[s] production of documents that would enable further particularisation”; and compliance with the Notice to Produce will not be oppressive.
The respondent filed an application to set aside the Notice to Produce on 18 March 2024. Some two weeks later, by letter dated 3 April 2024 (Exhibit A), the applicant’s solicitor criticised the respondent’s solicitor for filing an application in a proceeding in the following terms:
It is, of course, also notable that your client on the one hand criticises the pleadings for failing to have full and detailed particulars, while at the same time refuses to hand over the documents that are exclusively in their position that would enable our client to provide that detail. Indeed, as you ought to appreciate, it is usual in these sort of matters for an employer to hold all relevant records, and we suggest that the Court will be troubled that your client is outright refusing to hand over any of those records.
In short, your client’s:
a.complete failure to accept that they have any obligation to produce any documents at all;
b. complete refusal to engage with the very simple and clear explanations as to why they would have that obligation, and
c. intractable and unhelpful correspondence on this and other issues,
is conduct that is entirely at odds with your client’s obligations under section 190 of the Federal Circuit and Family Court of Australia Act 2021 (the Act). That your client instead has now filed an application to set aside the Notice instead of substantively engaging with matters our client has raised only emphasises this fact and will bear on the question of costs, discussed further below.
Exhibit A then purports to explain why the applicant contends the respondent ought to produce the documents called for by the Notice to Produce. It would be convenient to set out the following passage from Exhibit A:
2.As you would be aware, there are two aspects to our clients claim. The first is that she was required to work unreasonable working hours throughout the whole of her employment, as is expressly pleaded at paragraph 18 of our client’s Points of Claim (Claim) and surrounding paragraphs. (Unreasonable Hours Issue) A subset of this issue is that the volume of work could not be completed in an ordinary working week. This is also expressly pleaded at paragraph 9(b) of the Claim. The second aspect of the Claim is that there was adverse action taken against her in terminating her employment (Adverse Action Issue).
3.Our client’s emails and calendar entries will directly shed light on both of those issues.
4.The emails will include details of the work our client performed and was expected to perform and the times at which she performed that work. The calendar entries will demonstrate the volume of meetings that our client attended, and will assist in demonstrating the hours that our client worked. This includes where our client has instructed us that she would sometimes include reminders to herself of work deadlines in her outlook calendar.
5.The emails and calendar entries will also identify the frequent meetings between the Applicant and her direct manager, and will include complaints of a nature alleged at paragraphs 11, 17 and 21 of the Claim.
6.It is not a “fishing expedition” where the emails and calendar entries are well within our client’s knowledge – she was the one who sent/received those items. Of course, no employee will remember with specificity all of their emails and calendar entries, and to detail on a week by week basis (as your client has previously insisted that she does), those files will assist her ability to do so.
7.It is not as though our client has asked your client to produce any email in which she was specifically referred to by any person or similar. That would be a fishing expedition.
PARTIES’ SUBMISSIONS
In written and oral submissions, Ms Otavski, who appeared for the respondent, made two sets of submissions. The first is that r 16.16 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules), being the rule purportedly pursuant to which the applicant issued the Notice to Produce, did not authorise the issuing of the Notice to Produce because that rule only allowed for the issuing of a notice calling for the production “at the hearing” of “a specified document”. Relying on the judgment of Judge Baird in Lift Shop Pty Ltd v Next Level Elevators Pty Ltd (No 2),[14] the respondent submitted that the applicant could only call for the production of a document that the notice to produce explicitly identifies. Second, Ms Otavski contended that the documents the Notice to Produce called for were too broad, they constituted a fishing expedition, and in any event it would be oppressive for the respondent to attempt to comply with it. Counsel for the respondent, on the other hand, relied on the matters set out in Exhibit A.
[14] Lift Shop Pty Ltd v Next Level Elevators Pty Ltd (No 2) [2023] FedCFamC2G 268
During the hearing I asked whether the unresolved issue of particulars was relevant to my determining whether the Notice to Produce should be set aside. Counsel for the applicant said he had not come to argue a case about particulars. I nevertheless suggested to the parties that whether the applicant had sufficiently particularised her claim might be relevant, given the purposes for which it is legitimate to require the production of documents. I particularly noted that it appeared to me that the gist of an allegation of breach of s 62(1) of the FW Act was the employer’s requesting or requiring an employee to work more than the number of hours in a week specified in s 62(1) of the FW Act, unless the additional hours are reasonable; and that it was necessary for a claim based on an alleged breach of s 62(1) to identify the request or demand the employer made. That would be particularly so because, as counsel for the applicant submitted, it would be for an employer who admits he or she has requested an employee to perform additional hours to allege in his or her defence, and prove, that the request or requirement was reasonable.
NOTICE TO PRODUCE NOT VALID BECAUSE OF NON-COMPLIANCE WITH RULE 16.16?
It is the case that, on a literal construction, r 16.16 of the GFL Rules requires a notice to produce that is issued purportedly pursuant to that rule to specifically identify the documents it requires to be produced; and, moreover, that the documents be produced at the hearing. That by itself, however, would not be a reason for setting aside the Notice to Produce. First, although the applicant’s solicitor issued the Notice to Produce purportedly pursuant to r 16.16 of the GFL Rules, and assuming r 16.16 bears a literal construction, there would be incorporated into the GFL Rules, pursuant to r 1.06(2) of the GFL Rules, r 30.28 of the Federal Court Rules 2011 (Cth), and it would be open to the applicant to rely on that rule.
Second, and more importantly, this Court (the Court or this Court) has power to order a party to produce documents at any stage of a proceeding. There is r 14.04 of the GFL Rules, which provides that the Court “may order a party to a proceeding to produce to it a document in the possession, custody or control of the party”; and there is the general power conferred by s 192(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFC Act), which provides that the Court or a Judge of the Court “may give directions about the practice and procedure to be followed in relation to a civil proceeding, or any part of such a proceeding, before the Court”. Subsection 192(2) identifies the types of directions the Court may give, and these include requiring “things to be done”. This is broad enough to include requiring parties to produce documents. That the Court has power to require parties to produce documents at any stage of a proceeding means that it is open to parties in the course of a proceeding to request from each other the production of documents which they claim are relevant to an issue in a proceeding and, where there is any dispute about whether a party has the documents requested or, if the party does, whether the documents are or potentially are relevant to an issue in the proceeding, or whether, if relevant, the documents are privileged or confidential, that dispute may be brought before the Court for determination.
I therefore would not set aside the Notice to Produce only because the applicant’s solicitor issued it purportedly pursuant to r 16.16 of the GFL Rules.
SHOULD THE NOTICE TO PRODUCE BE SET ASIDE?
It is the case there is not before me an application that the applicant provide the particulars the respondent’s solicitor has sought. That does not mean, however, that the question whether the applicant has sufficiently particularised her claim is irrelevant to whether I should set aside the Notice to Produce. In her letter dated 2 October 2023 the respondent’s solicitor notified the applicant’s solicitor that if the applicant insists on not providing the particulars the respondent requested, but instead seeks to rely on the process of discovery to particularise the applicant’s claims, the respondent would rely on the correspondence in relation to the request for particulars. More importantly, however, and in the way I will show in a moment, whether the applicant has sufficiently stated and particularised her case is relevant to whether the applicant, at this stage of the proceeding, is entitled to the production of the documents, or any of the documents, called for by the Notice to Produce.
Relevance of sufficiency of particularity of claim
In her letters dated 13 September 2023, 18 October 2023, and 3 April 2024 (being Exhibit A), the applicant’s solicitor relied on s 190 of the FCFC Act to support the contention that the respondent was not entitled to the particulars its solicitor sought. Section 190 of the FCFC Act provides as follows:
(1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
(2) Without limiting subsection (1), the overarching purpose includes the following objectives:
(a) the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court’s overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3) The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4) The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court;
(b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).
Section 190 of the FCFC Act is supported by s 191, which obliges parties to a civil proceeding before the Court to conduct the proceeding “in a way that is consistent with the overarching purpose”.
Section 190 of the FCFC Act does not stand by itself. In particular, it does not license the Court or parties to a proceeding to ignore the “civil practice and procedure provisions”, and the essential principles on which they are based, only because it is claimed that to do so would save expense, enhance efficiency, or expedite the proceeding. Section 190 goes no further than identifying the objectives the Court must have in mind when administering and applying the “civil practice and procedure provisions”, and the objectives parties to a proceeding must have in mind when they invoke those provisions.
The effective implementation of s 190(1) of the FCFC Act, at least where parties are represented by lawyers, requires that the lawyers have a sound knowledge of the basic provisions of the “civil practice and procedure provisions”, and the fundamental principles that underpin them; a sound knowledge of the statutory and any unwritten law on which the parties rely for asserting and resisting a claim for relief; knowledge of the essential facts that, under the law or laws on which the parties rely, and which, unless admitted, must be proved to establish the asserted claim or defence; and to the extent reasonably possible, knowledge of the evidence that is available to the parties at any given time that is relevant to the facts on which the parties rely in support of their respective claims and defences. The effective implementation of s 190(1) of the FCFC Act also requires the application of the largely undefinable qualities of craft, judgment, and common sense.
These may seem rather daunting requirements, given the detail of the FCFC Act and the GFL Rules, and the breadth and complexity of our statutory and unwritten law and its many branches. But the requirements for the effective implementation of s 190(1) of the FCFC Act should not be viewed as daunting, once it is recognised that the provisions that comprise the rules that govern the procedure before a court are underpinned by a few sets of fundamental principles that not only guide the formulation and navigation of a claim and defence in any proceeding, but also direct and organise thinking to and about the relevant statutory and unwritten law that underpins an asserted claim or defence.
The first, and most important, set of principles apply to a person who commences a proceeding in this Court, that is, an applicant. An applicant is required to state his or her case in a document by identifying the relief he or she seeks, and the grounds on which he or she seeks that relief. This invariably requires the applicant to articulate a set of alleged facts the applicant believes to be true and which, if admitted by the respondent, or otherwise found by the Court at a trial to be true, the applicant claims will entitle him or her to the relief he or she seeks. The set of alleged facts is usually known as a “cause of action” or “the material facts”.[15]
[15] A “cause of action”, in turn, has been defined as “a factual situation the existence of which entitles one person to obtain from the court a remedy against another person” – Letang v Cooper [1964] EWCA Civ 5; [1965] 1 QB 232, at pages 242-243. The expression “material facts” identifies the facts rules of court require a person to allege in a pleading – see, for example, r 16.02(1)(d) of the Federal Court Rules 2011 (Cth).
What facts in any given case are capable of constituting the material facts or cause of action is entirely a function of the law on which an applicant relies for asserting a claim for relief. In the case of an applicant in this Court, the law will almost always include a provision of a Commonwealth statute because, being a federal court, this Court can only exercise such jurisdiction as Parliament may confer on it pursuant to s 71 of the Constitution.[16] The relevant statutory provision or provisions on which an applicant relies for his or her claim for relief will usually readily identify the material facts the applicant must prove if he or she is to succeed in his or her claim for relief. It will often also identify any material facts on which the respondent may be able to rely in resisting the claim for relief. That is particularly the case with one of the provisions on which the applicant in this proceeding relies, namely, s 62 of the FW Act, to which I will refer later.
[16] I say “almost always” because it is open to Parliament to confer jurisdiction on a Court in relation to matters that arise under the common law or equity, provided, of course, jurisdiction is granted in respect of a law that is otherwise within the power of Parliament to enact.
Requiring an applicant to state his or her case in a document by identifying the material facts on which the applicant relies for his or her claims for relief serves a number of functions. The first is to demonstrate that the claims for relief, if disputed, will raise a matter that is within the jurisdiction of this Court. The second is to give fair notice to the person against whom the claim for relief is sought, namely, the respondent, of the case that person must meet. A third purpose is not often noticed, but is nevertheless fundamental; and that is to demonstrate that the applicant has a sufficiently arguable claim for relief to justify putting the respondent to the trouble and expense of having to answer and defend the applicant’s claim. A fourth purpose is a consequence of the second purpose: it is to initiate the process by which the parties themselves identify the issue or issues the Court will be required to determine at a final hearing. The process consists of the respondent filing a document that states his or case.
The second set of principles, then, apply to the document the respondent must file if he or she wishes to defend the applicant’s claim. The respondent must identify the allegations of fact the applicant makes in his or her statement of case the respondent disputes or at least is not in a position to admit, and articulate any additional set of alleged facts the respondent believes are true and which, if proved at trial, or otherwise admitted by the applicant, the respondent claims defeats the applicant’s claim. The functions of requiring a respondent to do these things, if he or she wishes to defend the proceeding, largely mirrors the purposes for which an applicant is required to articulate the material facts on which he or she relies: to give notice to the applicant of the grounds on which the respondent intends to defend the applicant’s claims for relief; and to identify the issue or issues the Court will be required to determine at a final hearing.
The documents by which an applicant and respondent state and respond to the alleged facts on which they each rely are often pleadings (that is, a statement of claim; a defence; and, where required, a reply) about which the following has been said:[17]
“The function of pleadings is to state with sufficient clarity the case that must be met” and thereby to “ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and . . . to define the issues for decision”. A plaintiff should be expected to plead all material facts on which the plaintiff relies to constitute the statutory cause of action, including any counterfactual on which that plaintiff relies to establish the requisite causal link between identified loss or damage and identified misleading or deceptive conduct. In the same way, a defendant resisting the statutory action should be expected to plead any different counterfactual on which that party might rely to deny the causal link. Unless and to the extent that the parties choose to depart from the pleadings in the way they go on to conduct the trial, choice between the competing pleaded counterfactuals on the balance of probabilities should then exhaust the fact-finding that is required to be undertaken by the court on the issue of causation.
[17] Berry v CCL Secure Pty Ltd [2020] HCA 27, at [72]
Parties in this Court, however, are often not required to state their respective cases by pleadings; and that is because the “civil practice and procedure provisions” provide other forms by which the parties are required to or may state, and respond to, the alleged facts on which they each rely. But whatever the forms the “civil practice and procedure provisions” require or permit the parties to use, completion of the relevant forms are intended to serve the same function as pleadings, namely, to require the parties to state and notify the Court and each other of the facts on which they rely (or which they dispute) in support of (or in opposition to) a claim for relief, and the grounds on which, given those facts, the parties claim (or resist a claim) for relief.
A third set of principles apply after the parties have each filed the required or permitted documents in which they state their respective cases, and the issues for determination by the Court have consequently been identified. These principles relate to the rules and practices that permit parties to compel each other and third parties to produce and identify documents. The principal means by which the “civil practice and procedure provisions” permit parties to compel the production of documents are by subpoena, by notice to produce, and by discovery. The principal distinction is between subpoenas and notices to produce (on the one hand), and discovery (on the other); and the basis of the distinction lies on which party is required to identify the documents that are to be produced. In the case of notices to produce and subpoenas, the party that issues these documents must identify the documents. In the case of traditional discovery, it is the party who is required to give discovery who must identify the documents, and that party must do so by reference to the issues in the proceeding. The distinction between notices to produce and subpoenas (on the one hand) and discovery (on the other) has become blurred, however, because discovery for the most part is sought by reference to “categories of documents” which the party requiring discovery formulates, rather than on the basis of the issues in the proceeding. The manner in which “categories of documents” are described for the purposes of discovery are often indistinguishable from the manner in which documents are described in notices to produce and subpoenas.
Whatever process the parties seek to use to compel each other or third parties to produce documents, there is one broad principle that limits the range of documents the parties are entitled to compel others to produce. The principle is stated differently according to whether a person seeks documents by means of a notice to produce or subpoena, or by means of traditional discovery. In the case of notices to produce and subpoenas, the principle is that the issue of a notice to produce or subpoena must be for a legitimate forensic purpose; and there will be a legitimate forensic purpose only if the documents called for by the notice to produce or subpoena have an apparent relevance to the issues the parties have identified by filing their restatements of case. The Full Federal Court conveniently stated the principle in Wong v Sklavos:[18]
The party issuing a subpoena bears the onus of demonstrating that the subpoena has a legitimate forensic purpose in relation to the issues in the proceedings. A subpoena may be set aside if it requires the production of documents which do not have apparent relevance to the issues arising on the pleadings. Other cases have used different terminology, but with essentially the same effect, for example, by requiring that, viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative, or that the material sought is reasonably likely to add in some way to the relevant evidence in the case, or that it be “on the cards” that the documents sought will materially assist the party at whose request the subpoena has been issued.
[18] Wong v Sklavos [2014] FCAFC 120, at [12] (references omitted)
The principle in relation to traditional discovery is that a person required to give discovery must identify and, if required, make available for inspection, documents that relate to any matter in question; but, for the purposes of the practice of this Court, the principle has been interpreted to mean that the party required to give discovery need only identify documents that are “directly relevant” to the issues raised by the parties.[19]
[19] See my discussion in Australian Building & Construction Commissioner v CFMEU & Ors (No.5) [2018] FCCA 1100, at [3]-[31]
One corollary of the requirement that a party may issue or have issued a notice to produce or a subpoena or give discovery only to the extent of documents that are, or are apparently relevant to the issues in a proceeding, is that the parties can only seek to compel the production of documents after the parties have sufficiently identified their respective cases, and consequently have identified the issues that are to be determined by the Court at trial. Another corollary is the prohibition of the use of such processes to compel the production of documents for the purpose of determining whether the party has a claim or defence the party has not already articulated in his or her statement of case, as opposed to the (legitimate) purpose of supporting or otherwise assisting a case the party has already articulated. To seek to compel the production of documents for the (prohibited) purpose of determining whether a party has a case, as opposed to obtaining documents to support a case, has been called a “fishing”,[20] or a “fishing expedition”, as described by Lindgren J in Trade Practices Commission v CC (NSW) Pty Ltd (No 4):[21]
What does the reference to a “fishing expedition” mean? After all, ex hypothesi, the giving of discovery will often, if not always, reveal documents of which the other party was not previously aware . . . . What is meant is that discovery must not be used for the purpose of ascertaining whether a case exists, as distinct from the purpose of compelling the production of documents where there is already some evidence that a case exists.
[20] See The Commissioner for Railways v Small (1938) 36 SR (NSW) 564, at page 575: “In the absence of special circumstances . . . a party is no more entitled to use a subpoena duces tecum than he is a summons for interrogatories, for the purpose of “fishing”, i.e., endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all . . . or to discover the nature of the other side’s evidence” (Jordan CJ)
[21] Trade Practices Commission v CC (NSW) Pty Ltd (No 4) [1995] FCA 1418; (1995) 58 FCR 426, at page 438
Courts apply the third set of principles flexibly, and in particular having regard to the documents relevant to an issue it is reasonable to suppose each party has in his or her possessions compared to the documents that is in the possession of the other. That means there are circumstances where the Court may exercise its discretion to permit a party to obtain discovery or issue a notice to produce or subpoena before he or she is in a position to properly particularise his or her claims, and even before the parties are in a position to state their respective cases. In CC (NSW) Lindgren J considered the principles on which a court exercises its discretion in these circumstances.
In CC (NSW) the applicant applied for an order for discovery in relation to an allegation that the respondents had entered into a particular understanding. The respondents submitted the application for discovery was a fishing expedition because the applicant could not provide particulars the respondents had sought. Lindgren J held that in the circumstances of the case this did not indicate the application for discovery was an attempt to mount a fishing expedition. His Honour found that the statement of claim and some of the particulars the applicant had provided were “reasonably detailed”; and there was evidence “of the existence of a case of the kind pleaded”.[22] Lindgren J also rejected the respondent’s submission that the applicant should provide particulars before discovery by filing and serving its affidavit evidence. His Honour said (emphasis added):[23]
A well accepted situation which the court often exercises its discretion by ordering discovery before particulars are supplied is that in which the party which seeks particulars and resists discovery is alone in possession of the relevant documents . .
[22] Trade Practices Commission v CC (NSW) Pty Ltd (No 4) [1995] FCA 1418; (1995) 58 FCR 426, at page 439
[23] Trade Practices Commission v CC (NSW) Pty Ltd (No 4) [1995] FCA 1418; (1995) 58 FCR 426, at page 439
In the light of these principles, it is easy to state the relevance of the question whether a claim has been sufficiently stated or particularised to the question whether a party is entitled to compel another party or person to produce documents. If a party has not stated or sufficiently stated his or her case, and that party’s inability to do so cannot reasonably be attributed to his or her not having information to enable him or her to state or sufficiently state her case, the Court will not compel another party or person to produce documents only because it may reasonably be supposed that the party or person has documents the person who seeks the production of the documents does not possess.
Up to two questions, therefore, arise. Has the applicant in this proceeding stated or sufficiently stated her case based on breach of s 62(1) of the FW Act? If not, is that because she does not have the information necessary to enable her to formulate her case, but the respondent may reasonably be supposed to have that information?
Has the applicant sufficiently stated her case under s 62 of the FW Act?
I begin with s 62 of the FW Act, which provides:
Maximum weekly hours of work
(1)An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:
(a) for a full-time employee—38 hours; or
(b) for an employee who is not a full‑time employee—the lesser of:
(i) 38 hours; and
(ii) the employee’s ordinary hours of work in a week.
Employee may refuse to work unreasonable additional hours
(2) The employee may refuse to work additional hours (beyond those referred to in paragraph (1)(a) or (b)) if they are unreasonable.
Determining whether additional hours are reasonable
(3) In determining whether additional hours are reasonable or unreasonable for the purposes of subsections (1) and (2), the following must be taken into account:
(a) any risk to employee health and safety from working the additional hours;
(b)the employee’s personal circumstances, including family responsibilities;
(c)the needs of the workplace or enterprise in which the employee is employed;
(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;
(e) any notice given by the employer of any request or requirement to work the additional hours;
(f) any notice given by the employee of his or her intention to refuse to work the additional hours;
(g) the usual patterns of work in the industry, or the part of an industry, in which the employee works;
(h) the nature of the employee’s role, and the employee’s level of responsibility;
(i) whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64;
(j) any other relevant matter.
Authorised leave or absence treated as hours worked
(4) For the purposes of subsection (1), the hours an employee works in a week are taken to include any hours of leave, or absence, whether paid or unpaid, that the employee takes in the week and that are authorised:
(a) by the employee’s employer; or
(b) by or under a term or condition of the employee’s employment; or
(c) by or under a law of the Commonwealth, a State or a Territory, or an instrument in force under such a law.
Under s 61(3) of the FW Act, s 62 is a National Employment Standard, which means that an employer’s breach of s 62(1) of the FW Act constitutes a contravention of s 44(1) of the FW Act, which, under s 539 of the FW Act, is a “civil remedy provision”.
These provisions must be read with s 539, s 545, and s 546 of the FW Act. Subsection 539(2) provides that an employee may apply to this Court for orders for a contravention of s 44(1) of the FW; and s 545 of the FW Act, which identifies the orders this Court may make on an application for orders for a contravention of s 44 and other “civil remedy provisions”. These include an order under s 545(2)(b) awarding compensation for loss that a person has suffered because of the contravention. Subsection 546(1) of the FW Act provides that this Court may make an order for the payment of a pecuniary penalty.
On a literal reading of the text of s 62(1) of the FW Act, an employer breaches s 62(1) when the employer requests or requires an employee to work more than the hours referred to in s 62(1) (additional hours), unless the employer proves that the additional hours he or she required or requested the employee to work were reasonable. An employer will not have breached s 62(1) of the FW Act if, contrary to the employee’s claim, the employer did not request or require the employee to work additional hours or, if the employer did request or require the employee to work additional hours, the additional hours the employer requested or required the employee to work were reasonable.
As a minimum, therefore, an employee who applies for relief based on an employer’s breach of s 62(1) of the FW Act must identify in his or her statement of case (in the case before me, the PoC) the alleged facts on which he or she relies for alleging the employer requested or required the employee to work additional hours. The request or requirement may be alleged to be express; and it may also be alleged that the request or requirement was implied, or partly express and partly implied. To the extent the employee alleges the request or requirement was implied, the employee must identify the matters on which he or she relies for so alleging. Further, whether the employer’s request or requirement for additional hours is alleged to have been made expressly or impliedly, the employee must identify the hours the employee alleges the employer requested or required the employee to work. Without the employee articulating these matters in his or her statement of case, the basic functions of requiring an applicant to state his or her case cannot be met. The employer will be unable to understand the case that is made against him or her and, consequently, will be unable to determine whether the employee has any arguable case. Further, even if the employer were to file a response, the issues between the parties will not be identified; and there will be substantial risk that the processes of the court will be used for the impermissible purpose of fishing, and, further, that the parties will litigate irrelevant issues.
The PoC does not satisfy the minimum requirements for stating a case based on a breach of s 62(1) of the FW Act; it simply alleges that the respondent “regularly required the Applicant to work approximately 70 hours per week including on weekends and most public holiday”. This allegation is bereft of the most basic information. It does not identify by reference to date or time or place the occasions on which it is alleged the respondent required the applicant to work additional hours; it does not identify whether it is alleged that on each of those occasions the respondent conveyed the requirement expressly or impliedly; and consequently, to the extent the applicant intends to allege the respondent conveyed the requirement impliedly, the PoC does not identify the facts and matters on which the applicant intends to rely for so alleging. That the respondent has filed a defence to the PoC does not alter the fact that the PoC does not satisfy the minimum requirements for stating a case based on a breach of s 62(1) of the FW Act.
Unless, therefore, the applicant shows that she cannot articulate her claims with any greater specificity than she has because the respondent, but not the applicant, has the information that is necessary for her to do so, I would set aside the Notice to Produce on the basis that the PoC has not sufficiently stated a case based on s 62(1) of the FW Act so as to entitle her to compel the production of documents purportedly in aid of her case.
Whether applicant cannot state sufficient case because information is under the respondent’s control
The applicant does not say that she cannot articulate her claims with any greater specificity unless the respondent produces to her the documents described in the Notice to Produce. In her letter dated 13 September 2023, the applicant’s solicitor stated that the applicant “has a good recollection of the hours she worked, and conversations she had with [Ms K]”; but she further says that “there is little point attempting to provide the specific particulars that you are now seeking”, given that the respondent holds records that “provide specific details such as dates and times of emails send [sic], emails themselves, messages sent on internal communications tools, login times on work computers, calendar entries etc”. That is not a sufficient reason for the applicant not stating her claim with such specificity as her knowledge and access to information will permit. The applicant’s position, as stated by her solicitor, is in effect based on the expectation that the respondent is to take on trust that the applicant is able to sufficiently state her case, if she were required to do so and, in any event, that the respondent knows what the applicant’s case is. If the applicant’s solicitor has based this position on s 190(1) of the FCFC Act, it is based on a mistaken view of the effect of s 190(1).
There is another difficulty with the Notice to Produce, and the applicant’s justification for issuing it. Assume the respondent produces all of the documents called for by the Notice to Produce; and assume on the basis of those documents the applicant puts together a case that is capable of proving that she worked more than the required hours. The applicant has not articulated how her being in a position to show she consistently worked additional hours will enable her to identify each of the occasions on which the applicant alleges the respondent required the applicant to work additional hours, and to otherwise identify the means by which the respondent conveyed to the applicant the requirement that the applicant worked the additional hours.
DISPOSITION AND FURTHER PROGRESS
I propose to order that the Notice to Produce be set aside, and to set the matter down for a further directions hearing on 29 May 2024. The purpose of setting the matter down for a directions hearing on 29 May 2024 is to provide the parties an opportunity to confer and perhaps agree on the next steps in the proceeding. When conferring about the further progress of the case, the parties should not assume that I have formed the view that the matter may best proceed by the applicant providing the particulars requested by the respondent. The focus of the parties’ conferring should be to give the applicant an opportunity, whether by providing particulars, or by filing an amended PoC, to identify the occasions on which she alleges the respondent required her to work additional hours; whether those requirements were express or implied, or partly express or implied; to the extent the applicant alleges the requirement was express, to specify the effect of the words by means of which the applicant alleges the respondent communicated to her the requirement that the applicant work additional hours; to the extent the applicant says the respondent impliedly required her to work additional hours, to identify the matters on which the applicant relies for the allegation; and to identify, to the extent of the information that is available to her permits, the additional hours the applicant alleges she worked in response to the requirements the applicant identifies the respondent made that the applicant work additional hours.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 30 April 2024
3
5
5