Farac v Pendal Group Limited (No 5)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Farac v Pendal Group Limited (No 5) [2023] FedCFamC2G 274

File number(s): SYG 2443 of 2020
Judgment of: JUDGE CAMERON
Date of judgment: 14 April 2023
Catchwords:

PRACTICE AND PROCEDURE – application for discovery - whether in the interests of the administration of justice – relevant considerations.

PRACTICE AND PROCEDURE – application for discovery – discovery by categories.

Legislation:

Fair Work Act 2009 (Cth), s. 340

Federal Circuit and Family Court of Australia Act 2021 (Cth), s. 176

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 1.06, 14.02

Federal Court Rules 2011 (Cth), rr 20.14, 20.15

Cases cited:

Farac v Pendal Group Limited (No.3) [2023] FedCFamC2G 220

Farac v Pendal Group Limited (No 2) [2023] FedCFamC2G 215

Fuji Xerox Australia Pty Ltd v Whittaker (No 2) [2021] FCA 696

Melbourne Home of Ford Pty Ltd v Trade Practices Commission (1979) 36 FLR 450

WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175

Austal Ships Pty Ltd v Incat Australia Pty Ltd (No 3) (2010) 272 ALR 177

Pan v Hampton Accelerate Pty Ltd [2023] FCA 46

Abrahams v Qantas Airways Ltd (No 2) (2007) 210 FLR 314

Dixon v Watpac Ltd [2022] FedCFamC2G 778

Van den Berg v Monash Health [2022] FCA 796
Division: Fair Work
Number of paragraphs: 38
Date of hearing: 22 March 2023
Place: Sydney
Counsel for the Applicant: Ms R. Francois
Solicitor for the Applicant: Kennedys
Counsel for the First and Second Respondents: Mr D. Mahendra
Solicitor for the First and Second Respondents: MinterEllison

ORDERS

SYG 2443 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

PETER ADAM FARAC

Applicant
AND:

PENDAL GROUP LIMITED (ACN 126 385 822)

First Respondent

RICHARD BRANDWEINER

Second Respondent

order made by:

JUDGE CAMERON

DATE OF ORDER:

14 April 2023

THE COURT ORDERS THAT:

1.The applicant’s application in a proceeding filed on 20 February 2023 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE CAMERON

INTRODUCTION

  1. In this proceeding the applicant, Mr Farac, has alleged in his further amended statement of claim that Pendal Group Limited (“Pendal”) took various forms of adverse action against him in contravention of s.340 of the Fair Work Act 2009 (Cth) (“FW Act”) and that Mr Brandweiner, the second respondent, was an accessory to those contraventions. Relevant facts were summarised in Farac v Pendal Group Limited (No.3) [2023] FedCFamC2G 220 at [4]-[6]. The matter is listed for hearing on 19 June 2023.

  2. Relevantly, on 13 February 2023 the…

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Details
Case
[2023] FedCFamC2G 274
Decision Date

CaseChat Overview and Summary

In the case of Farac v Pendal Group Limited (No 5), the applicant, Mr Farac, sought an order for discovery from the Federal Circuit and Family Court of Australia. The application was for the discovery of specific categories of documents held by the respondents, Pendal Group Limited. The core dispute centred on the relevance and necessity of these documents for the fair determination of the proceeding, as well as the procedural complexities and jurisdictional considerations between the Federal Circuit and Family Court of Australia and the Federal Court of Australia.

The legal issues the court had to address included whether the requested categories of documents were relevant to the facts in issue, whether the discovery process should be conducted in accordance with the Federal Court Rules due to the similarity in the discovery by category process, and whether the case should be transferred to the Federal Court for resolution due to its complexity and the availability of appropriate discovery orders there. Additionally, the court had to consider the implications of the restricted jurisdiction of the Federal Circuit and Family Court of Australia on the granting of discovery orders.

The court dismissed the application for discovery and the alternative prayer for a transfer to the Federal Court. The reasoning behind the decision was that the Federal Court Rules, specifically rules 20.14 and 20.15, were applicable under the circumstances as per rule 1.06 of the Federal Circuit and Family Court of Australia Rules. However, the court determined that the terms of the discovery sought would depend on questions of relevance rather than the categories alone. The court also found that a transfer to the Federal Court was not warranted as it would inevitably result in a postponement of the trial, which was not a compelling reason for transfer. The court concluded that the application for discovery would be dismissed.

The final orders of the court were that the application for discovery was dismissed, and the alternative request for a transfer to the Federal Court was also dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Mr Le Blond also submitted in his affidavit that if discovery were not ordered due to the “restricted jurisdiction” of this Court, the proceeding should be transferred to the Federal Court on the basis that Mr Farac’s case had become increasingly complex, discovery orders of the sort sought were available to be made and were readily made by the Federal Court and that the case probably needed a further three to four hearing days beyond the present trial listing to resolve remaining interlocutory matters and to conclude the trial itself.RESPONDENT’S EVIDENCE Ms Kelly, a solicitor employed by the solicitor for the respondents, filed an affidavit affirmed on 27 February 2023 opposing the orders for discovery sought by Mr Farac. Ms Kelly deposed to the history of the parties’ attempts, recorded in correspondence, to establish an informal regime for the exchange of documents, to orders the Court made regarding Mr Farac’s notice to produce dated 22 December 2022 and to documents the respondents had been required to produce in response to the notice to produce. The parties’ exchanges on discovery and the notice to produce were summarised in the following terms in Farac v Pendal Group Limited (No 2) [2023] FedCFamC2G 215 at [4]:(a)on 5 August 2022 at a directions hearing Mr Farac suggested discovery and on 16 August 2022 the respondents’ solicitors suggested an informal regime for the exchange of documents;(b)on 13 September 2022 Mr Farac’s solicitors suggested informal discovery and an exchange of categories of documents for discovery on or before 27 September 2022 and on 19 September 2022 followed up that inquiry;…(e)on 13 October 2022 the respondents’ solicitors advised that their clients did not agree to discovery, informal or otherwise. They invited requests for specific documents if they could be identified, advising that the respondents would consider the request without requiring Mr Farac to file a notice to produce or a subpoena;…(l)on 22 December 2022 Mr Farac’s solicitors served on the respondents’ solicitors a notice to produce, purporting to require the respondents to produce documents on or before 4pm on 19 January 2023. The notice to produce contained 37 numbered paragraphs;(m)on 23 December 2022 the respondents’ solicitors wrote to Mr Farac’s solicitors advising that, given the time of year, it would be difficult to take instructions and, in any event, their offices would be closed until 9 January 2023. They went on to say that, given that their counsel was on leave until 18 January 2023, they would respond to the notice to produce as soon as practicable after that date. An answer was provided on 31 January 2023 with a detailed response to each of the numbered paragraphs; … Ms Kelly deposed that as at 27 February 2023, the respondents had produced 84 documents in response to 13 categories of the notice to produce.APPLICANT’S SUBMISSIONS Categories 1 to 5 sought records of communications and meetings involving three “key decision-makers” in the two and a half years from March 2019 to October 2021 and in which he was discussed. Mr Le Blond submitted in his affidavit that these communications about Mr Farac were likely to be highly probative of the reasons why any adverse action was taken against him as well as helpful to test the truthfulness of certain evidence.

Decision

Reasons for decision

I also refuse the alternative prayer that the matter be transferred to the Federal Court of Australia. A party’s approach to the preparation of their case is no basis for a transfer, particularly as a transfer would inevitably involve a postponement of the trial. Further the likely length of a trial is not a reason for transfer that the Federal Court would necessarily find compelling: Van den Berg v Monash Health [2022] FCA 796 at [17].CONCLUSION The application in a proceeding filed on 20 February 2023 will be dismissed.

Ratio Decidendi

Legal Principle Established

The Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“Rules”) relevantly provides: 14.02 Declaration to allow discovery (1)A declaration may be made under subsection 176(2) of the Act to allow discovery on the application of a party or on the Court’s own initiative.(2)If a declaration is made, the Court or a Registrar may make an order for disclosure:(a) generally; or (b) in relation to particular classes of documents; or (c) in relation to particular issues; or (d) by a specified date. The Court otherwise has no rules dealing with discovery. The discovery which Mr Farac sought was discovery by category and it appears to have been assumed by the parties that such a discovery process would be similar to the discovery by category in the Federal Court and thus depend entirely on the terms of the various categories, rather than on questions of relevance: cf rr.20.14 and 20.15 of the Federal Court Rules 2011 (Cth). The terms of the discovery sought would tend to confirm that impression. The Federal Court’s rules 20.14 and 20.15 are not expressly applied in this Court, as some others of its rules are, but in the circumstances it is appropriate that they nevertheless be applied under r.1.06 of this Court’s Rules which relevantly states:1.06 Application(1) It is intended that the practice and procedure of the Court in general federal law proceedings be governed principally by these Rules.(2) However, if in a particular case the Rules are insufficient or inappropriate, the Court may apply the Federal Court Rules or the Federal Court (Criminal Proceedings) Rules 2016 in whole or in part and modified or dispensed with, as necessary.…APPLICANT’S EVIDENCE Mr Le Blond, Mr Farac’s solicitor, filed an affidavit sworn on 20 February 2023 in support of the application for discovery. He deposed that each of the categories of document sought was relevant to the determination of a fact in issue in the proceeding and that disclosure was appropriate in the interests of the administration of justice. Mr Le Blond deposed that each document sought was required to resolve issues in dispute between the parties and, as the documents were solely in the possession of Pendal, it would be fair to grant a discovery order. By reference to a table setting out individual submissions in relation to each proposed category for discovery, Mr Le Blond deposed to why he believed discovery to be necessary. Mr Le Blond also submitted in his affidavit that if discovery were not ordered due to the “restricted jurisdiction” of this Court, the proceeding should be transferred to the Federal Court on the basis that Mr Farac’s case had become increasingly complex, discovery orders of the sort sought were available to be made and were readily made by the Federal Court and that the case probably needed a further three to four hearing days beyond the present trial listing to resolve remaining interlocutory matters and to conclude the trial itself.RESPONDENT’S EVIDENCE