Eaton v Sell Lease Property Pty Ltd
[2016] FCCA 538
•16 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EATON v SELL LEASE PROPERTY PTY LTD & ORS | [2016] FCCA 538 |
| Catchwords: PRACTICE AND PROCEDURE – Subpoena – notice of objection – purpose for which documents called – whether legitimate forensic purpose – whether “fishing”. |
| Legislation: Evidence Act 1995 (Cth), ss.117, 118 Federal Circuit Court Rules 2001 (Cth), rr.15A.09, 15A.14, 21.02(1)(c) |
| Ali Tastan (1994) 75 A Crim R 498 Australian Gas Light Company ACN 052 167 405 v Australian Competition & Consumer Commission [2003] FCA 1101; [2003] ATPR 41-956 AWB Ltd v Cole & Anor (No 5) [2006] FCA 1234; (2006) 155 FCR 30; (2006) 234 ALR 651 Bartolo v Doutta Galla Aged Services Ltd [2014] FCCA 1517 Commissioner for Railways v Small (1938) 38 SR (NSW) 564 Cosco Holdings Pty Ltd v Commissioner for Taxation & Anor (1997) 37 ATR 432 Grant v Downs (1976) 135 CLR 674; (1976) 51 ALJR 198; (1976)11 ALR 577 Hodkinson v Commonwealth [2011] FMCA 171; (2011) 207 IR 129; (2011) 248 FLR 409; (2011) 63 AILR 101-328 Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1; (1999) 74 ALJR 378; (1999) 168 ALR 86; [2000] Aust Torts Reports 81-539 Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306; (1989) 88 ALR 90; [1990] ATPR 41-010 (1) Waind v Hill and National Employers’ Mutual General Association Ltd [1978] 1 NSWLR 372 |
| Applicant: | SIMONE EATON |
| First Respondent: | SELL LEASE PROPERTY PTY LTD |
| Second Respondent: | BRETT QUINN |
| Third Respondent: | BRIAN McKIERNAN |
| Fourth Respondent: | GRAEME MacEWAN |
| File Number: | PEG 127 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 11 March 2016 |
| Date of Last Submission: | 11 March 2016 |
| Delivered at: | Perth |
| Delivered on: | 16 March 2016 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondent: | Mr RJS French |
| Solicitors for the Respondent: | DLA Piper Australia |
ORDERS
That the subpoena issued by the applicant on 3 February 2016 be set aside, in part, and specifically that categories 8, 9, 17 and 22 to 33 inclusive be set aside.
That the applicant not be permitted to inspect the documents produced in response to categories 5 and 11 of the subpoena issued by the applicant on 3 February 2016.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 127 of 2015
| SIMONE EATON |
Applicant
And
| SELL LEASE PROPERTY PTY LTD |
First Respondent
| BRETT QUINN |
Second Respondent
| BRIAN McKIERNAN |
Third Respondent
| GRAEME MacEWAN |
Fourth Respondent
REASONS FOR JUDGMENT
Notice of objection to subpoena
Before the Court is an application under rr.15A.09 and 15A.14 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) to set aside part of a subpoena issued by the applicant, Simone Eaton (“Ms Eaton”) on 3 February 2016 to the respondents, being Sell Lease Property Pty Ltd (“Sell Lease Property”), Brett Quinn (“Mr Quinn”), Brian McKiernan (“Mr McKiernan”) and Graeme MacEwan (“Mr MacEwan”) respectively, and objecting to inspection of some categories of documents sought under the subpoena.
Principles
In Lawlor v Courtesy Real Estate (NSW) Pty Ltd [2014] FCCA 1471 at [2] per Judge Manousaridis this Court observed that a party who issues a subpoena for production (“issuing party”) must, when challenged, be able to:
a)articulate the purpose for which the documents called by the subpoena are required;
b)demonstrate that the stated purpose is a legitimate forensic purpose; and
c)demonstrate the subpoena calls for, and only calls for, documents that are reasonably necessary to fulfil the articulated purpose.
In Ali Tastan (1994) 75 A Crim R 498 at 504 per Barr AJ (“Tastan”) the New South Wales Supreme Court said:
It is the duty of the Court, where the issue is raised, to require the party calling on a subpoena to produce documents to identify expressly and precisely the legitimate forensic purpose for which access to documents is sought and to refuse access unless such an identification is made.
(Quoted with approval by Brownie AJA in NSW Commissioner of Police v Tuxford & Ors [2002] NSWCA 139 at [22] (Spigelman CJ and Ipp AJA agreeing)).
The purpose or purposes for which it is legitimate to issue a subpoena have been stated both positively and negatively. Positively, the purpose is not restricted to enabling the issuing party to have the documents for the purpose of tendering them into evidence: Waind v Hill and National Employers’ Mutual General Association Ltd [1978] 1 NSWLR 372 per Moffitt P at 384-385 (Hutley and Glass JJA agreeing). Negatively, it is not legitimate to issue a subpoena for the purpose of “fishing”, that is where a party endeavours, not to obtain evidence to support its case, but to discover whether the party has a case at all: Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575 per Jordan CJ (“Small”); Tamawood Ltd (ACN 010 954 499) v Habitare Developments Pty Ltd (ACN 122 935 497) [2009] FCA 364 at [30] per Collier J (“Tamawood”). The purpose for which it is legitimate to issue a subpoena falls between the above two purposes. That purpose was identified in Small where the New South Wales Supreme Court distinguished the illegitimate purpose of “fishing” from the legitimate purpose of endeavouring to obtain evidence to support the issuing party’s case:
[A] party is no more entitled to use a subpoena … 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.
Small at 575 per Jordan CJ.
Thus, the purpose for which it is legitimate to issue a subpoena is to obtain evidence to support the issuing party’s case.
The test for determining whether the documents called for by the subpoena are documents, and only documents, that are reasonably necessary to fulfil the asserted legitimate forensic purpose, has been variously stated. The documents called for by a subpoena may be held to fulfil the asserted legitimate forensic purpose if the documents:
a)“… have an apparent relevance … to the issues in the principal proceedings, ie, is adjectival, as distinct from substantive, relevance established?”: Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306; (1989) 88 ALR 90; [1990] ATPR 41-010 (1); ALR at 103 per Beaumont J;
b)have “at least some apparent potential relevance to the matters in issue in the litigation”: Australian Gas Light Company ACN 052 167 405 v Australian Competition & Consumer Commission [2003] FCA 1101; [2003] ATPR 41-956 at [8] per French J (“AGL”): Commonwealth v Albany Port Authority [2006] WASCA 185 at [18] per Steytler P; or
c)“could reasonably be expected to throw light on some of the issues in the principal proceedings”: Cosco Holdings Pty Ltd v Commissioner for Taxation & Anor (1997) 37 ATR 432 at 440 per Spender J.
The expression often used in determining an application is “on the cards”. That is, a subpoena will be issued for the legitimate purpose of obtaining evidence in support of the issuing party’s case if it is “on the cards” that “the documents will materially assist his case”: Tastan at 505 per Barr AJ; R v Saleam [1999] NSWCCA 86 at [11] per Simpson J.
There is an overlap between whether the purpose for which the issuing party asserts a subpoena is issued for a legitimate forensic purpose – to obtain evidence to support the issuing party’s case – and whether the documents called for by the subpoena fulfil the asserted purpose. If, for example, the documents called for by the subpoena include documents in relation to which it cannot be said that it is on the cards that they will materially assist the issuing party’s case, the inference will readily be drawn that the subpoena has not been issued for a legitimate forensic purpose.
When determining whether a subpoena or part of a subpoena should be set aside on the ground that it has not been issued for a legitimate forensic purpose, or on the ground that it calls for documents beyond what is necessary to fulfil the legitimate forensic purpose, the Court must:
a)identify the issue or issues with respect to which the issuing party claims his case will be materially assisted by the production of the documents called for by the subpoena; and
b)determine whether it is “on the cards” that the documents will materially assist the issuing party’s case on that issue.
It is therefore necessary to determine the relevance or apparent relevance of the documents by reference to the matters that are in issue in the proceedings. Before turning to the issues in the proceedings the Court will set out the objections to production.
The objections to production
The subpoena seeks the production of the following documents, or categories of document, to which the respondents take objection and in respect of which they seek to have the subpoena set aside:
3. Personnel list from November 2014 through February 2015 – refers to point 7 of the Respondents response dated 18/1/16.
…
8. Signed employment contract of Richard King.
9. The settlement deed between SLP and Richard King (Dec 2014).
…
15. A copy of documents and/or records which provides the names of employees, their job titles and employment status (eg. full time, part-time, casual) for the period 1 July 2014 to 30 June 2015.
…
17. Copies of contracts for persons that were employed on part-time or casual contracts for the period 01/01/15 to 30/6/15.
…
22. A copy of any and all employment contracts for Kevin Solvdt
23. A copy of any and all employment contracts for Rob Beka
24. A copy of any and all employment contracts for Trish Allen
25. A copy of any and all employment contracts for Te Rina Brown
26. A copy of any and all employment contracts for Anthony Tran
27. A copy of any and all employment contracts for David Nugyen.
28. A copy of any and all employment contracts for Rowland Townsend.
29. A copy of any and all employment contracts for Alea Eng.
30. A copy of any and all employment contracts for Tony Prout.
31. A copy of any and all employment contracts for Tyson Keene.
32. A copy of any and all employment contracts for Patrick Armour.
33. A copy of any and all employment contracts for Janice Humphreys.
The basis for the objections is that documents sought, as set out above, serve no legitimate forensic purpose in the proceeding, and that the documents in categories 15 and 17 also fail to specify the documents sought with reasonable particularity and they are in the nature of impermissible “fishing”.
Issues in the proceedings and consideration of them
In her “Further Amended Form 2 – claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection” (“Form 2”), Ms Eaton alleges that as a result of a series of inquiries about her workplace rights, particularly as they related to the payment of wages, allowances and expenses, adverse action was taken against her by way of termination of her employment on the ground of redundancy, contrary to s.340 of the Fair Work Act 2009 (Cth) (“FW Act”). In a letter concerning “Consultation on introduction to major change” written on behalf of Sell Lease Property by Mr Quinn on 31 January 2015 (“Sell Lease Property’s 31 January 2015 Letter”), Sell Lease Property advised Ms Eaton that:
In recent weeks we have been considering the utility to our business of engaging sales representatives on a part-time basis. We concluded that, for a variety of commercial and logistical reasons, we no longer want any part-time representative positions in our business and we plan to make each of them redundant.
In a letter dated 9 February 2015 advising Ms Eaton of her termination of employment by reason of redundancy the opening line referred to Sell Lease Property’s 31 January 2015 Letter.
Ms Eaton also alleges undue influence or pressure or coercion by the respondents in the period from 18 January 2015 to 31 January 2015, contrary to ss.344 and 355 of the FW Act, in an endeavour to have her sign a new contract as a casual employee. At the least, it would appear that the proposed new contract of employment as a casual employee alleged by Ms Eaton involved a change in her status from part-time to casual employment, and different hours to those that she was working under her then existing part-time contract of employment. At paragraph 3(g) at Item 24 of Part G of the Form 2 Ms Eaton specifically alleges that Mr McKiernan “attempted to coerce me into signing a new part-time contract”.
The rationale behind Ms Eaton’s termination of employment was, according to Sell Lease Property’s 31 January 2015 Letter, premised upon the elimination of part-time contracts of employment at Sell Lease Property. Significantly, this followed an alleged, but failed, attempt to have Ms Eaton sign a new part-time or casual contract of employment, which she alleges was sought by means of undue influence, pressure or coercion.
In relation to proof in adverse action claims Ms Eaton bears the onus of demonstrating that:
a)she has, or has exercised, a workplace right as defined in s.341 of the FW Act; and
b)one or more of the respondents has taken adverse action against her as defined in s.342(1) of the FW Act: Hodkinson v Commonwealth [2011] FMCA 171; (2011) 207 IR 129; (2011) 248 FLR 409; (2011) 63 AILR 101-328 at [130] per Cameron FM.
Once Ms Eaton establishes these matters and alleges that the adverse action was taken because she had, or exercised, a workplace right, it is presumed that the respondents took the adverse action for that reason unless they prove otherwise: FW Act, s.361.
The principles, in determining whether an employer has proven otherwise were established in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 290 ALR 647; (2012) 64 AILR 101-722 (“Barclay”), and can be summarised as follows:
a)the central question to be determined: “why was the adverse action taken?” is one of fact;
b)the central question is to be answered having regard to all the facts established in the proceeding;
c)the Court is concerned to determine the actual reason or reasons which motivated the decision-maker, but is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker, and nor should such an inquiry be made;
d)it will be extremely difficult to displace the statutory presumption in s.361 of the FW Act if no direct testimony is given by the decision-maker acting on behalf of the employer;
e)even if the decision-maker gives evidence that they acted solely for non-proscribed reasons other evidence, including contradictory evidence given by the decision-maker, may render such assertions unreliable; and
f)if, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s.361 of the FW Act.
See State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184; (2014) 246 IR 441; (2014) 67 AILR 102-322 at [32] per Tracey and Buchanan JJ.
It follows therefore that mere declarations of innocent reason or intent in taking adverse action may not satisfy the onus upon an employer if contrary inferences are available on the facts: Barclay at [54] per French CJ and Crennan J. The question is whether the proscribed reason was a substantial and operative factor such as to constitute a proscribed reason, or whether it was an operative and immediate reason for the adverse action: Barclay at [127] per Gummow and Hayne JJ; Storey v The Monitoring Centre Pty Ltd & Ors [2015] FCCA 3310 at [128] per Judge Manousaridis. The proscribed reason does not have to be the sole reason for taking the adverse action, and a person is regarded as having taken adverse action for a particular reason if the reasons for the action include that reason: FW Act, s.361.
At hearing, the Court suggested that categories 3 and 15 related to the alleged reason for the decision to terminate Ms Eaton’s employment (that is, that Sell Lease Property no longer required employees on part-time contracts), because if others had been employed on a part-time or casual contract of employment before, around the time of, or not long after Ms Eaton’s termination of employment, it might be relevant to whether there was a basis for there being a non-proscribed reason for the termination of employment, that is the restructuring and elimination of part-time employment at Sell Lease Property. The documentation had the capacity to either demonstrate that that was so, or to demonstrate that others had been employed on a part-time or casual contract of employment during the relevant timeframe, which evidence might then be used to contradict the asserted basis for Ms Eaton’s termination of employment, or from which an inference might be drawn that her employment was terminated for a proscribed reason if other part-time, or part-time casual, employees had been retained, reemployed or employed before, at or about, or after the termination of her employment.
Counsel for the respondents, quite properly in the Court’s view, and upon instructions, withdrew the respondents’ objections to production of the documents in categories 3 and 15.
The withdrawal of the objections to categories 3 and 15 renders categories 17 and 22-33 inclusive otiose for the relevant period, which in the Court’s view is the 2014-2015 financial year. Category 17 duplicates category 15 insofar as the contracts referred to in category 17 must be produced under category 15. Likewise, any contracts for individuals in categories 22 to 33 inclusive are caught, for the relevant period, by category 15.
In the circumstances, it is appropriate to set aside the subpoena in part, insofar as it seeks documents in categories 17 and 22 to 33 inclusive, on the basis that they are already obliged to be produced under category 15.
In relation to categories 8 and 9 of the documents sought to be produced, namely Mr King’s employment contract and a settlement deed between Mr King and Sell Lease Property, Ms Eaton said that she considered that they were relevant to the disposition of her claim because Mr King had a full-time contract, but with the same conditions as Ms Eaton had, and that Mr King had been involved in litigation concerning non-payment of entitlements, which litigation had settled, culminating in the settlement deed.
Mr King’s contract of employment is a document that Sell Lease Property is already obliged to produce under category 15, and it is therefore appropriate to set aside the subpoena in relation to category 8.
In the Court’s view documents in category 9 serve no legitimate forensic purpose, for as the Court pointed out to Ms Eaton at hearing, the settlement deed would not shed any light upon the reason for any action, let alone adverse action, being taken in relation to Ms Eaton, whether by reason of her seeking to exercise her workplace rights, or otherwise as to her monetary entitlements.
In the above circumstances, the subpoena should be set aside in relation to categories 8 and 9.
Objection to inspection
Categories 5 and 11 of the documents sought by the subpoena are as follows:
5. Advice received in 2014, 2015 and 2016 with respect to issues or illegal content of the part-time contract I had signed.
…
11. A copy of all documents and records, including but not limited to notes, email, messages, letters, memos and meeting minutes between Steven Heathcote (or other persons providing advice) relating to abolishing the part-time sales representative positions and/or terminating the employment of any part-time sales representatives.
Inspection of these categories of documents is objected to on the basis that they contain confidential communications between Sell Lease Property and its solicitor created for the dominant purpose of providing legal advice.
In determining whether legal professional privilege will prevent the production of the documents in categories 5 and 11 the Court must determine whether the purpose for which the documents were brought into existence was the dominant purpose of obtaining legal advice: Grant v Downs (1976) 135 CLR 674; (1976) 51 ALJR 198; (1976)11 ALR 577; CLR at 678 per Barwick CJ; AWB Ltd v Cole & Anor (No 5) [2006] FCA 1234; (2006) 155 FCR 30; (2006) 234 ALR 651 at [44] per Young J, and whether the privilege has been lost, effectively by client waiver: Evidence Act 1995 (Cth), ss.117 and 118; Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1; (1999) 74 ALJR 378; (1999) 168 ALR 86; [2000] Aust Torts Reports 81-539 at [29] and [34] per Gleeson CJ, Gaudron, Gummow and Callinan JJ; Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; (2006) 151 FCR 341; (2006) 63 ATR 79; (2006) 229 ALR 304 at [68] per Kenny, Stone and Edmonds JJ.
There is no serious issue or dispute in this case that the documents in categories 5 and 11 were brought into existence for the dominant purpose of obtaining legal advice on the part of Sell Lease Property.
The issue of whether the legal professional privilege in the documents in categories 5 and 11 has been waived is more contentious. In relation to that issue the Court adopts as a relevant summary of the law what was said by the Court in Bartolo v Doutta Galla Aged Services Ltd [2014] FCCA 1517 at [86]-[90] per Judge Whelan (“Bartolo”) as follows:
86. In Mann, the majority of the High Court held that what brings about a waiver of legal professional privilege is inconsistency between the conduct of the person entitled to the benefit of confidentiality of communication between lawyer and client and maintenance of confidentiality. At paragraph 29 of the majority decision, the Court said:
What brings about the waiver is the inconsistency, which the courts, where necessary informed by consideration of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.
87. At paragraph 34 of the majority decision, the Court went on to say:
Disclosure by a client of confidential legal advice received by the client, which may be for the purpose of explaining or justifying the client’s actions, or for some other purpose, will waive privilege if such disclosure is inconsistent with the confidentiality which the privilege serves to protect. Depending upon the circumstances of the case, considerations of fairness may be relevant to a determination of whether there is such inconsistency.
88. In Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; (2006) 151 FCR 341, the Full Court of the Federal Court formulated the question, in the context of claimed issue waiver, as whether a party has:
[M]ade an assertion as part of his case that puts the contents of the privileged scheduled documents in issue, or necessarily lays them open to scrutiny, with the consequence that an inconsistency arises between the making of the assertion and the maintenance of the privilege.
89. In DSE (Holdings) Pty Ltd v InterTAN Inc [2003] FCA 384; (2003) 127 FCR 499 the test as to when an implied waiver arises was expressed as being when:
[T]he party entitled to the privilege makes an assertion (express or implied), or brings a case, which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny and, by such conduct, an inconsistency arises between the act and the maintenance of the confidence, informed partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication.
90. It is clearly not sufficient that a mere reference to legal advice will amount to disclosure. Nor could a mere reference to a decision having been made after consultation with lawyers, amount to a disclosure of the contents of that advice. Where, however, the client has put in issue its state of mind and it appears that legal advice was given at the relevant time, the privilege was lost where it was shown that there is a likelihood that the legal advice contributed to that state of mind.
Bartolo was a very particular case, and distinguishable from the present case. In Bartolo the Board of the employer arranged for the lawyers concerned to carry out an investigation in relation to the employee concerned, which investigation made a number of recommendations to the Board, including that the employee be dismissed. The Board then passed those recommendations on to the Chief Executive Officer who acted upon them, including terminating the employee concerned. The lawyer’s advice was therefore relevant to the state of mind formed by the Board in determining to implement the recommendation to terminate the employee concerned, that implementation being effected through the Chief Executive Officer. Ultimately, Bartolo turns upon the fact that the lawyers were investigating, that is, determining facts, as well as providing legal advice, and that the issue of the lawyers’ report to the Board was put in issue by reason of the fact that the Board determined to implement the recommendations of the lawyers’ report, which recommendations included the employee’s termination, and the employer pleaded that fact.
It is relevant to note that Mr Quinn was the sole decision-maker in respect of issues associated with Ms Eaton’s employment: Mr Quinn’s Affidavit affirmed 19 February 2016 at [5]; McKiernan’s Affidavit affirmed 19 February 2016 at [6] (“Mr McKiernan’s Affidavit”); Mr MacEwan’s Affidavit affirmed 19 February 2016 at [16]-[20].
In this case, Sell Lease Property has disclosed legal advice given to it by its then lawyer Mr Heathcote, which was utilised by the Chief Executive Officer, Mr Quinn, in determining a course of action to be adopted with respect to the status of Sell Lease Property’s part-time contracts of employment: see Mr Quinn’s Affidavit at [26]-[28] and Annexure BRQ-3. There is no dispute that the advice disclosed underpinned the rationale for the re-structuring and abolition of part-time employment contracts at Sell Lease Property. That said, Mr Quinn went on to proffer a commercial justification for the ultimate decision to terminate, and make redundant, employees on part-time employment contracts. It does not appear that, at that stage, there was significant reliance upon the legal advice in making what was by then a seemingly commercial decision. In any event, it is not in dispute that the legal advice which appears at Annexure BRQ-3 to Mr Quinn’s Affidavit has been disclosed, and to the extent that it is disclosed, the legal professional privilege is waived in respect of the disclosed advice: see Mr Quinn’s Affidavit at [26], [28] and [47]-[49].
Mr McKiernan attests to the fact that on 1 February 2015 he received an email from Ms Eaton about her redundancy, and Mr Quinn told him to “let the lawyer handle it”: Mr McKiernan’s Affidavit at [36]. There is no further indication in the affidavits filed on behalf of Sell Lease Property as to how the “lawyer handled it”.
In an affidavit filed on 2 October 2015 (“Ms Eaton’s October 2015 Affidavit”) Ms Eaton says that she received an email from Mr Heathcote on 11 February 2015 indicating that she should serve any papers on him (she having been terminated on 9 February 2015): Ms Eaton’s October 2015 Affidavit at [18]. There is reference to Mr Heathcote on or about 5 May 2015 telling the Fair Work Ombudsman (“FWO”) that Ms Eaton had filed these proceedings, and the FWO apparently not taking a complaint or enquiry made to the FWO any further as a consequence: Ms Eaton’s October 2015 Affidavit at [27]. Ms Eaton also makes reference to the fact that Mr Heathcote appeared at a directions hearing in this Court on 6 May 2015, and that by 2 July 2015 she had had no further contact from Mr Heathcote: Ms Eaton’s October 2015 Affidavit at [28] and [31]. Ms Eaton also says that in September 2015 Mr Heathcote advised that he did not intend to submit an amended Response on behalf of the respondents: Ms Eaton’s October 2015 Affidavit at [34]. Ms Eaton also says that on 18 September 2015 Mr Heathcote advised her in a telephone call, that Sell Lease Property did not want to go to hearing still owing money to her, being wages and entitlements, and that they wanted to split the case into two, and that she requested Mr Heathcote to clarify the proposal in writing. Ms Eaton also indicates that Mr Heathcote advised that part of the claim would be covered by insurance and that Sell Lease Property would be directly liable for the remainder: Ms Eaton’s October 2015 Affidavit at [35].
Save for the legal advice which was voluntarily disclosed by Sell Lease Property, there is no evidence to indicate that any other legal advice given by Mr Heathcote was relevant in Sell Lease Property, and in particular Mr Quinn, making the decision to terminate Ms Eaton’s employment. Nor was there any disclosure of legal advice as to the actual entitlements, of Ms Eaton, disclosed by Sell Lease Property, or any of its officers, or Mr Heathcote. The closest that Ms Eaton comes in that regard is the discussion on 18 September 2015 when Mr Heathcote advised that Sell Lease Property did not want to go to hearing still owing money to Ms Eaton. It suffices to observe that Mr Heathcote’s comment that Sell Lease Property did not want to go to hearing owing Ms Eaton any monies to which she was entitled does not amount to a disclosure of any legal advice given to Sell Lease Property, nor is it an admission that there was such an entitlement. In the Court’s view the documents sought in categories 5 and 11 of the subpoena amount to fishing by Ms Eaton, it not having been demonstrated that any of the documents sought to be produced might be relevant or might assist Ms Eaton’s case.
In all of the above circumstances the Court is not satisfied that Ms Eaton should be allowed to inspect the documents in categories 5 and 11. There is no justification for allowing inspection of the documents in categories 5 and 11, in circumstances where there is no evidence that that legal advice (save for that legal advice voluntarily disclosed) has been disclosed or was intended to be disclosed to Ms Eaton. There was therefore no waiver of legal professional privilege, save for that legal advice voluntarily disclosed.
For the above reasons, there will be an order that the applicant not be allowed to inspect the documents in categories 5 and 11 of the subpoena.
Conclusions and orders
The Court has concluded that:
a)the subpoena should be set aside, in part, and specifically that categories 8, 9, 17 and 22 to 33 inclusive should be set aside; and
b)the applicant not be permitted to inspect the documents produced in response to categories 5 and 11 of the subpoena.
There will be orders accordingly.
On the face of it this is a no costs matter: FW Act, s.570(1). If, however, any party considers that they might be entitled to costs: see FW Act, s.570(2), an application for costs can be made within 14 days: FCC Rules, r.21.02(1)(c).
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 16 March 2016
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