Doherty v Prospa Advance Pty Ltd (No 3) - [2025] FedCFamC2G 607

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Doherty v Prospa Advance Pty Ltd (No 3) [2025] FedCFamC2G 607

File number(s): SYG 1155 of 2023

Judgment of: JUDGE MANOUSARIDIS

Date of judgment: 29 April 2025

Catchwords: INDUSTRIAL LAW – Practice and procedure – application to set aside notices to produce – whether issuer demonstrated legitimate forensic purpose – application to set aside one of the notices to produce dismissed and part of another notice to produce set aside.

Legislation:
Evidence Act 1995 (Cth) s 106

Fair Work Act 2009 (Cth) s 62

Cases cited:
Doherty v Prospa Advance Pty Ltd [2024] FedCFamC2G 391

Thomas v SMP (International) Pty Ltd (No.2) [2010] NSWSC 870

Division: General

Number of paragraphs: 23

Date of last submission/s: 29 April 2025

Date of hearing: 23 April 2025

Place: Sydney

Counsel for the Applicant: Mr G Fredericks

Solicitor for the Applicant: Gibson Howlin Lawyers

Counsel for the Respondent: Ms R Kumar

Solicitor for the Respondent: 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:

29 APRIL 2025

THE COURT ORDERS THAT:
1.Subject to order 2, the respondent’s application in a proceeding filed on 15 April 2025 to set aside all or part of the notice to produce issued by the applicant on 7 April 2025 is dismissed.
2.The parties have liberty to apply on such notice as the circumstances warrant in relation to any issue that may arise concerning the production of the documents called for by the notice to produce referred to in order 1.
3.Paragraph 2 of the notice to produce issued by the respondent on 12 March 2025 is 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
INTRODUCTION

On 30 April 2024, on the basis of reasons I published on that day (earlier reasons), I made an order setting aside a notice to produce (earlier notice to produce) the applicant, Ms Doherty, issued to the respondent (Prospa).[1] The proceeding has progressed to the point where the parties have filed their evidence in chief, and a hearing date has been set commencing on 24 June 2025.
[1] Doherty v Prospa Advance Pty Ltd [2024] FedCFamC2G 391
In these circumstances, Ms Doherty has issued another notice to produce addressed to Prospa substantially in the same terms as the earlier notice to produce. Prospa now applies to set aside the notice to produce,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FedCFamC2G 607
Decision Date: 29 April 2025

CaseChat Overview and Summary

The case of Doherty v Prospa Advance Pty Ltd (No 3) involved an application by the plaintiff, Doherty, to set aside two notices to produce documents issued by the defendant, Prospa Advance Pty Ltd. The dispute originated from an industrial law matter and was heard in the Federal Circuit Court of Australia. The primary focus of the litigation was whether the defendant could demonstrate a legitimate forensic purpose for the issuance of the notices, thereby justifying their issuance despite the plaintiff's objections.

The court was required to determine the legitimacy of the forensic purpose behind the notices to produce. The plaintiff argued that the notices were overly broad and lacked a specific purpose, while the defendant contended that the notices were necessary for the proper conduct of the litigation. The key issue was whether the defendant had demonstrated a reasonable and bona fide basis for issuing the notices, which is a critical requirement under the relevant procedural rules.

The court meticulously examined the context and the specific circumstances of the case. It found that while one of the notices was overly broad and lacked a specific purpose, the other notice was justified. The court reasoned that the defendant had not adequately demonstrated a legitimate forensic purpose for the first notice, leading to its partial setting aside. However, for the second notice, the court found that the defendant had provided sufficient evidence to support its issuance, and thus, this part of the application was dismissed. The court's decision was based on a detailed analysis of the particulars of each notice and the overall context of the litigation.

The final orders of the court were that one of the notices to produce was to be set aside in part, while the application to set aside the other notice was dismissed. The court's ruling provided clarity on the requirements for issuing notices to produce in industrial law cases and the importance of demonstrating a legitimate forensic purpose.

Orders