Fraser v State of Victoria (Secretary, Department of Education)
[2025] FedCFamC2G 697
•16 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fraser v State of Victoria (Secretary, Department of Education) [2025] FedCFamC2G 697
File number: MLG 707 of 2025 Judgment of: JUDGE GOSTENCNIK Date of judgment: 16 May 2025 Catchwords: PRACTICE AND PROCEDURE – review of Registrar’s decision – where Registrar made declaration under s 176(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) that discovery is in the interests of the administration of justice – whether Registrar had delegated power to make a declaration – statutory interpretation – Registrar had been delegated power to make declaration –
hearing de novo – whether orders for discovery ought be made – whether discovery is appropriate, in the interests of the administration of justice – where the Court is satisfied discovery is in the interests of the administration of justice – declaration under s 176(2) and orders for discovery made – discovery order set aside for uncertainty – alternative discovery and other orders made – application for review of Registrar’s decision otherwise dismissedLegislation: Acts Interpretation Act 1901 (Cth) ss 15, 15AA
Fair Work Act 2009 (Cth) ss 340, 341(1), 360, 361
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 5(a), 7(1), 141(2), 176(2), 176(3), 176(3)(a), 176(3)(b), 189(2), 190, 190(1)(b), 190(2), 190(2)(e), 190(3), 190(4), 192, 254(1), 254(2), 254(2)(f), 254(3), 254(4), 256
Federal Circuit Court of Australia Act 1999 (Cth) s 45
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.04, 10.01(1), 10.01(2), 10.01(3)(i), 14.02(1), 14.02(2), 14.10, 21.01, table 21.1, items 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 13(b), 13(f)
Cases cited: Abrahams v Qantas Airways Ltd (No. 2) [2007] FMCA 639, 210 FLR 314
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 27
Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, 194 CLR 355
Russel v Macquarie Bank Limited [2020] FCA 1332
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34, 262 CLR 362
Division: Division 2 General Federal Law Number of paragraphs: 47 Date of last submission/s: 6 May 2025 Date of hearing: 7 May 2025 Place: Melbourne Counsel for the Applicants: Ms S Kelly with Ms E Faine-Vallantin Solicitors for the Applicants: Australian Education Union, Victoria Counsel for the Respondent: Mr B Avallone Solicitors for the Respondent: K&L Gates ORDERS
MLG 707 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SAMUEL FRASER
First Applicant
AUSTRALIAN EDUCATION UNION
Second Applicant
AND: STATE OF VICTORIA (SECRETARY TO THE DEPARTMENT OF EDUCATION)
Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
16 MAY 2025
THE COURT ORDERS THAT:
1.Order 3 of the orders made by Registrar Wilson on 15 April 2025 is set aside.
2.The respondent’s application for review lodged on 22 April 2025 is otherwise dismissed.
Hearing
3.The hearing of the proceeding, in so far as it concerns questions of liability (rather than any question of relief or costs) be heard and determined at a hearing commencing on a date and time to be fixed by the Court on or after 1 September 2025 on an estimated hearing time of 3 days at the Federal Circuit and Family Court of Australia at Melbourne (Liability Hearing).
4.Subject to order 3, the hearing shall proceed on affidavit evidence with the affidavits of each witness, if adopted, to stand as the evidence in chief of the witness.
5.Any evidence as to the reason (or reasons) for the adverse action taken against the first applicant by the respondent identified in paragraphs:
a.[32] and [57];
b.[41] and [61];
c.[49] and [65]; and
d.[54] and [69],
of Annexure A to the applicants’ Form 2 – Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection lodged on 4 March 2025 (Reason(s) for Adverse Action Issue) shall be given viva voce by the respondent’s decision-maker (or decision-makers) at the Liability Hearing.
Discovery
6.Pursuant to s 176(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) the Court declares that it is appropriate in the interests of the administration of justice to give discovery as to the Reason(s) for Adverse Action Issue.
7.Pursuant to rr 14.02(2) and 14.03 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth):
(a)By 5:00 pm on 23 May 2025, the respondent is to give discovery with such discovery to be provided by way of documents:
(i)that are directly relevant to the Reason(s) for Adverse Action Issue;
(ii)of which, after a reasonable search, the respondent is aware; and
(iii)that are, or have been, in the party’s control;
(b)By 5:00 pm on 23 May 2025, the respondent is to file and serve an affidavit of discovered documents.
Evidence
8.On or before 20 June 2025, the applicants file and serve upon the respondent any affidavit material upon which they intend to rely.
9.On or before 18 July 2025, the respondent file and serve upon the applicants:
(a)any affidavit material upon which it intends to rely; and
(b)any outline or outlines of anticipated evidence in respect of the Reason(s) for Adverse Action Issue.
10.On or before 1 August 2025, the applicant file and serve upon the respondent any affidavit material in reply.
Mediation
11.Pursuant to s 169 of the FCFCOA Act, the proceeding be referred to a Registrar for a full-day mediation on a date as soon as practicable after 8 August 2025.
12.The matter be listed for a case management conference on a date to be fixed after the mediation.
Submissions
13.By 4:00 pm on the date that is 28 days prior to the commencement of the Liability Hearing, the parties are to file and serve outlines of submissions and a list of case authorities.
14.By 4:00 pm on the date that is 21 days prior to the commencement of the Liability Hearing, if a party requires a deponent to be made available for cross-examination that party shall notify the other party.
15.By 4:00 pm on the date that is 14 days prior to the commencement of the Liability Hearing, the parties are to exchange lists of objections to affidavits and grounds of objections with copies to be sent by email to the presiding Judge’s associate.
16.By 4:00 pm on the date that is 7 days prior to the commencement of the Liability Hearing, the applicant deliver to the Court and to the other party, a paginated court book including a table of contents containing all of the electronically filed documents and other agreed documents on which the parties intend to rely.
17.After the delivery of judgment determining the matters dealt with at the Liability Hearing, if necessary, a case management hearing be conducted to determine how questions or issues raised by the proceeding, which fall beyond the scope of the matters to be dealt with at the Liability Hearing, will be dealt with by the Court.
18.There be liberty to apply.
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 Gostencnik
INTRODUCTION
The applicants have brought a proceeding alleging the respondent took adverse action against the first applicant in contravention of s 340 of the Fair Work Act 2009 (Cth) (FW Act). On 15 April 2025 a Registrar made orders for the conduct of the proceeding. The orders included Order 2 – a declaration under s 176(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) that it is appropriate, in the interests of the administration of justice, to allow discovery in the proceeding. Order 3 requires the parties to discover a category of documents relevant to the reasons for the adverse actions taken against the first applicant including his dismissal by the respondent.
The respondent has applied under s 256 of the FCFCOA Act seeking review of the Registrar’s exercise of power in making Orders 2 and 3. The review proceeds by way of a hearing de novo. The issues raised by the review are threefold. First, whether the Registrar had power to make a declaration under s 176(2) of the FCFCOA Act. Second, whether it is appropriate, in the interests of the administration of justice, to allow discovery, and if so, whether a declaration should be made under s 176(2) of the FCFCOA Act. Third, if a declaration is made, the terms of any discovery order that should be made. A fourth issue emerged at the hearing when the parties urged the Court to make further orders for the conduct of the proceedings, which apart from one issue were agreed. That issue concerns the way evidence in chief about the reason or reasons for taking the adverse action alleged, should be given at trial.
I have concluded the Registrar had power to make the declaration under s 176(2) of the FCFCOA Act. The power has been delegated to Registrars under the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules). It was also appropriate for the Registrar to make such a declaration. I have for myself assessed that it is appropriate, in the interests of the administration of justice, to allow discovery in the limited form sought by the applicants in the proceeding, albeit for reasons which differ from those advanced by the Registrar. Order 3 made by the Registrar is uncertain in its operation and should be expressed with greater precision. It is appropriate to make orders for the further conduct of the proceeding including by providing for evidence about the reason or reasons for taking the adverse action alleged to be given viva voce at trial. My reasons follow.
CONSIDERATION
Did the Registrar have power to make the declaration?
As this is a review of the exercise of a power by a Registrar, conducted by way of a hearing de novo, it is perhaps strictly not necessary to consider whether the Registrar had power to make a discovery declaration under s 176(2) of the FCFCOA Act. This is because the applicant sought (and continues to seek) limited discovery and so there is (or was before the Registrar) an oral application which engaged with r 14.02(1) of the Rules and s 176(2) of the FCFCOA Act, and so I must consider the matters in sub-ss 176(2) and (3). But as the parties have taken the trouble of filing extensive written submissions on the subject, which were supplemented by oral submissions at the review hearing and as they urge the Court to determine the issue, I will so do.
Section 176 of the FCFCOA Act deals with interrogatories and discovery and provides:
(1)Interrogatories and discovery are allowed in relation to family law and child support proceedings in the Federal Circuit and Family Court of Australia (Division 2).
(2)However, interrogatories and discovery are not allowed in relation to any other proceedings in the Federal Circuit and Family Court of Australia (Division 2), unless the Court or a Judge declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.
(3)In deciding whether to make a declaration under subsection (2), the Federal Circuit and Family Court of Australia (Division 2) or a Judge must have regard to:
(a)whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and
(b) such other matters (if any) as the Court or the Judge considers relevant.
It is uncontroversial that the power in s 176(2) of the FCFCOA Act is delegable under s 254(1). The delegation power is broad. Any of the powers of the Court may be delegated and the s 176(2) power is not one of the powers enumerated in s 254(3) which may not be delegated. However, the respondent contends the Registrar did not have power to make a declaration under s 176(2) because, when the FCFCOA Act and the Rules are properly construed, that power has not been delegated. In short compass, the respondent contends that r 21.01 of the Rules, which contains an itemised list of powers that are the subject of a delegation under s 254(1), does not contain a delegation of the declaration power in s 176(2). The respondent says that a notable absence in items 1 to 12 (where particular powers contained in identified sections of the FCFCOA Act are set out) is any reference to the declaration power in s 176(2). The respondent argues that the generalised reference in item 13(f) of r 21.01 to delegation of the power “to make orders in relation to discovery . . .” is not a delegation of the declaration power which conditions the making of a discovery order, and says that so much is evident from the disclosure rule in r 14.02(2) which permits the Court or a Registrar to make an order for disclosure “[i]f a declaration [under s 176(2)] is made”. The power to make the requisite declaration remains for the Court or a Judge to exercise. The construction for which the respondent contends is rejected for the reasons explained below.
It is also uncontroversial that determining whether the Registrar had power to make the declaration under s 176(2) of the FCFCOA Act turns on the proper construction of the FCFCOA Act and the Rules. And it is well settled that ascertaining the legal meaning of a statutory provision begins with the ordinary grammatical meaning of the words used, having regard to their context and legislative purpose. Context includes the language of the Act as a whole, the existing state of the law, the mischief the provision was intended to remedy and any relevant legislative history. Although the text of the statute is the starting point, at the same time, regard is had to its context and purpose. Context is to be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word or words – that is how the word is, or words are, ordinarily understood – to the process of construction. Context and purpose considerations recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34, 262 CLR 362 at [14], [37]-[39]; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, 194 CLR 355 at [69]–[71]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 27 at [47].
Section 15AA of the Acts Interpretation Act 1901 (Cth) (AI Act) requires that an interpretation of a provision of an enactment that would best achieve the purpose or object of the Act is to be preferred to each other interpretation. This is so whether the purpose or object is expressly stated in the enactment or not. The purpose or object of the Act is to be considered even if the meaning of a provision is clear. When the purpose or object is brought into account an alternative interpretation may become apparent. If one interpretation does not promote the object or purpose of the Act, and another does, the latter interpretation is to be preferred. Of course, s 15 of the AI Act requires the enactment be construed, not rewritten, in the light of its purpose or object.
Section 5 of the FCFCOA Act sets out its objects which include “to ensure that justice is delivered by federal courts effectively and efficiently”. Part 6 of Ch 4 of the FCFCOA Act deals with practice and procedure in Division 2 of the Court, and is where s 176 is found. Section 190(1) contains the overarching purpose of the civil practice and procedure provisions in relation to Division 2 of the Court – which is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Section 190 also provides the following:
(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, in relation to the Federal Circuit and Family Court of Australia (Division 2), 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, in relation to the Federal Circuit and Family Court of Australia (Division 2), 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).
Rule 1.04 adopts the overarching purpose in s 190 of the FCFCOA Act providing as follows:
1.04 Overarching purpose
(1) The overarching purpose of these Rules, as provided in section 190 of the Act, is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
Note 1: The parties to a proceeding must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose (see section 191 of the Act).
Note 2: These Rules must be interpreted and applied, and any power conferred or duty imposed by them must be exercised or carried out, in the way that best promotes the overarching purpose (see subsection 190(3) of the Act).
Note 3: The Court may dispense with compliance with these Rules or make orders inconsistent with these Rules (see rule 1.07).
(2) To assist the Court, the parties must:
(a) avoid undue delay, expense and technicality; and
(b) consider options for primary dispute resolution as early as possible.
(3) If appropriate, the Court will help to implement primary dispute resolution.
As already noted, s 254(1) of the FCFCOA Act contains a broad delegation power enabling Court rules to be made delegating “any of the powers of” the Court to a delegate or a prescribed class of delegate. A delegate includes a Registrar: s 7(1) of the FCFCOA Act. Section 254(2) sets out a non-exhaustive list of the kinds of powers of the Court that the rules may delegate including “the power to make orders in relation to discovery, inspection and production of documents in the possession, power or custody of a party to proceedings in the Court or of any other person”: s 254(2)(f) of the FCFCOA Act. Section 254(3), as already mentioned, does not permit the delegation of the powers therein identified, but the declaration power in s 176(2) is not among the non-delegable powers. Section 254(4) deals with the effect of delegation, so that when a delegated power is exercised by a delegate, the power is taken to have been exercised by the Court or a Judge of the Court.
Rule 21.01 of the Rules itemises in Table 21.1 the powers of the Court that are delegated to Registrars pursuant to s 254(1) of the FCFCOA Act. These include, by item 13, delegation of the power to make orders about the conduct of the proceeding, the power to make orders in relation to discovery, inspection and production of documents, the power to make orders in relation to interrogatories, and to exercise the power of the Court prescribed by the Rules.
Rule 14.02 of the Rules deals with the obligation to disclose and discover, providing as follows:
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.
Note: Discovery is not allowed in relation to a general federal law proceeding unless the Court or a Judge declares that it is appropriate in the interests of the administration of justice (see subsections 176(2) and (3) of the Act).
(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.
Part 10 of the Rules deals with the conduct of proceedings and by r 10.01 provides:
10.01 Directions and orders
(1) At the first court date, the Court or a Registrar must give orders or directions for the conduct of the proceeding.
(2) Without limiting subrule (1), the Court or a Registrar may hear and determine all or part of the proceeding.
(3) Without limiting subrule (1), the Court or a Registrar may make orders or directions in relation to the following:
(a) manner and sufficiency of service;
(b) amendment of documents;
(c) defining the issues;
(d) filing affidavits;
(e) cross‑claims;
(f) joinder of parties;
(g) dispute resolution;
(h) admissibility of affidavits;
(i) discovery and inspection of documents;
(j) interrogatories;
(k) inspections of real or personal property;
(l) admissions of fact or of documents;
(m) giving particulars;
(n) giving evidence at hearing (including the use of statements of evidence and taking evidence by video link or telephone or other means);
(o) expert evidence and court experts;
(p) transfer of proceedings;
(q) costs;
(r) hearing date;
(s) any other matter that the Court or Registrar considers appropriate.
A textual analysis of the FCFCOA Act and the Rules supports a conclusion that the power to make a declaration under s 176(2) of the FCFCOA Act has been delegated to Registrars under the Rules. Section 254(1) authorises making rules that delegate any power of the Court. Section 254(2) makes it clear that the kind of power that may be delegated includes the power to make orders relating to discovery. The limitation on delegation in s 254(3) does not engage with the discovery power in s 176(2). By item 13(f) of Table 21.1 of the Rules, the power of the Court “to make orders in relation to discovery, inspection and production of documents” is delegated to Registrars. The power delegated is cast in wide terms. It is the power to make orders “in relation to” the described matters, and I agree with the applicants that the delegation captures, without limitation, all the powers of the Court to make orders in relation to discovery, including the power to make the prerequisite declaration in s 176(2) taking into account the matters in s 176(3).
Nothing turns on the use of the word “order” when item 13(f) of Table 21.1 of the Rules speaks to discovery, while s 176(2) of the FCFCOA Act is concerned with a declaration. I agree with the applicants that a declaration is a particular type or species of order, which the Court may make. To make good this proposition one need only look to s 189(2) which empowers the Court to “make an order declaring” that a proceeding is not invalid, and s 141(2) which provides that a proceeding is not open to objection on the ground that “a declaratory order” only is sought. The power to make a declaration under s 176(2) is therefore a power of the Court “to make orders in relation to discovery.” That power falls under the broad description in s 254(2)(f) of the kind of power that may be delegated and which is delegated to Registrars by item 13(f) of Table 21.1 of the Rules.
Contrary to the respondent’s contention, the legislative note under r 14.02(1) of the Rules is not suggestive that the power to make a declaration under s 176(2) of the FCFCOA Act has been reserved to the Court or a Judge. It merely alerts the reader to the fact that discovery is not allowed unless the requisite declaration is made by the Court or a Judge. And if, as I consider correct, the power to make a declaration that it is appropriate in the interests of the administration of justice to allow discovery is a power to make an order in relation to discovery, that power has been delegated and when exercised it is taken for all purposes to have been exercised by the Court or a Judge of the Court: s 254(4) FCFCOA Act.
Although, as the respondent has pointed out, items 1 to 12 of Table 21.1 of the Rules delegate particular powers by reference to identified sections of the FCFCOA Act which appear both before and after s 176(2), there is no reference to the declaration power in s 176(2), its absence is not material, textually or contextually. As already explained, the generalised delegation under item 13(f) of the power to make orders “in relation to discovery” is broad enough to include and effectively delegate to Registrars the power to make a declaration under s 176(2) because a declaration that discovery is appropriate, in the interests of the administration of justice, is an order “in relation to discovery”. To similar effect, s 192, which empowers the Court or a Judge to give directions about the practice and procedure to be followed in relation to a civil proceeding or any part of it before the Court, is also not mentioned in the array of delegated powers set out by reference to sections of the FCFCOA Act found in items 1 to 12 of Table 21.1. But there can be little doubt that the power in s 192 is effectively delegated to Registrars by item 13(b) which provides for delegation of the power “to make orders about the conduct of the proceeding”.
Context and purpose also support a conclusion that the power to make a declaration under s 176(2) of the FCFCOA Act has been delegated to Registrars under the Rules. As the applicants correctly point out, Registrars are delegated broad powers under the Rules in relation to case management, procedural and administrative matters. Those powers include powers to make orders in relation to discovery. That broad delegation is consistent with the stated overarching purpose of the FCFCOA Act and the Rules, which is to facilitate the quick, inexpensive and efficient resolution of disputes. This includes the efficient use of judicial resources. The structure of the Rules contemplate that the Court or Registrars will give orders and directions for the conduct of a proceeding at the first court date: r 10.01(1). Accordingly, the Rules envisage that Registrars may make a range of orders at a very early stage of a proceeding, including making orders in relation to discovery and inspection of documents: r 10.01(3)(i). A Registrar may also hear and determine all or part of a proceeding: r 10.01(2). The notion for which the respondent contends, that the power to make a discovery order has been delegated, but the power to make a declaration which is the condition precedent to discovery has not, is inconsistent with the structure and content of the Rules, the role played by Registrars in the efficient and just case management of proceedings contemplated by the Rules, and the overarching purpose. It erects an artificial distinction between an order and a declaration which is also not supported by the scheme of the FCFCOA Act and would seek to corral that which is evidently a wide delegation of power to Registrars to “make orders in relation to discovery, inspection and production”, into a process that is inefficient, costly and wasteful of court resources by requiring a Judge or the Court to first make a declaration under s 176(2) of the FCFCOA Act before the delegated discovery power may be exercised. Such a construction is not compatible with the overarching purpose.
Conversely, the construction for which the applicants contend, and with which I concur, is one which supports the quick, inexpensive and efficient resolution of disputes, promoting efficient case management and the use of the Court’s judicial and administrative resources efficiently. That construction promotes the overarching purpose.
Accordingly, the Registrar had power to make a declaration under s 176(2) of the Act.
Is it appropriate, in the interests of the administration of justice, to allow discovery?
The applicants sought and continue to seek limited discovery of documents going to the reasons for the respondent taking identified actions, said to be adverse actions. The respondent contends that the discovery order made by the Registrar, even if within power, ought be set aside because it is not appropriate, in the interests of the administration of justice, to allow discovery in the instant case. The respondent says that s 176 of the FCFCOA Act is to be applied having regard to that Act’s objects, including the object in s 5(a), which is earlier set out. The respondent further notes that ss 190(3) and (4) require the Court to exercise its power in a way which best promotes the overarching purpose of the FCFCOA Act. This is not controversial.
The respondent says that s 176(2) of the FCFCOA Act erects a presumption against discovery, consistent with the overarching purpose of the civil practice and procedure provisions, so that, generally the “fair and expeditious conduct of the proceedings” does not require discovery. The respondent contends that just because some matters (in this case the reasons for taking action) are peculiarly within the knowledge of the respondent is not a sufficient reason to displace the presumption against discovery. The respondent says there are extensive documents to which reference is made in the respondent’s Response filed in the proceeding, directed to its reasons for taking action said to be adverse action. It says that those documents can all be requested by the applicants under r 14.10 of the Rules and contends that the applicants’ failure to seek those documents under the Rules is not a reason to overturn the default rule that discovery is not ordered in this Court.
The respondent also points out that the FW Act accommodates the fact that the reasons of the decision-maker are sometimes uniquely known to the respondent by imposing through s 361 a presumption as to the reason for taking action, which the respondent must rebut. The respondent says that at trial it will have to call the decision-maker(s) to give evidence about the reason(s) for taking action and that the presumed reason was not a reason for taking the adverse action alleged. Consequently, discovery directed at the reasons for taking action is unnecessary.
The respondent contends that the first applicant is well supported by the second applicant, a registered organisation under the FW Act and an experienced litigant in federal courts. The respondent says that the applicants chose to bring this proceeding in this Court, where the default position is that discovery is not ordered. It contends the applicants did so, presumably, because of the cost efficiency of this Court, mindful of legislative provisions including ss 5(a), 176(2), 190(1)(b) and 190(2)(e) of the FCFCOA Act. The respondent says that it should be inferred that the applicants considered bringing the proceeding in this Court, instead of the Federal Court where s 176(2) does not apply, because it was more likely to resolve the dispute at a cost that is proportionate to the importance and complexity of the matters in dispute. The respondent says that the applicants, having made that election, ought not be permitted to approbate and reprobate and the consequences of the applicants’ choice should be followed through, and the Court should find that that the requirement of s 176(2) is not met.
The respondent also contends that the applicants’ allegations concerning the adverse action said to have been taken are completely unclear and involve, in some cases, the conduct of numerous individuals, thus rendering the scope of the inquiry to satisfy a discovery order as to reasons for taking action time-consuming and onerous.
Some of the respondent’s written submissions quarrel with the Registrar’s reasons for making a declaration. I do not propose to address the respondent’s criticism of the Registrar’s reasons. This is because I do not join in those reasons, and as the review is conducted by way of a hearing de novo, I will explain my own reasons for concluding that it is appropriate, in the interests of the administration of justice, to allow the limited discovery the applicants seek.
The text of s 176 of the FCFCOA Act is earlier set out. In consequence, discovery is not allowed unless the Court or a Judge declares that it is appropriate in the interests of the administration of justice to allow it, and in deciding whether to make a discovery declaration, regard must be had to whether allowing discovery would be likely to contribute to the fair and expeditious conduct of the proceeding and any other matter considered relevant. Section 176 is in substantially the same terms as the predecessor section, s 45 of the Federal Circuit Court of Australia Act 1999 (Cth) – which has been described as a presumption that discovery will not be permitted unless the requisite declaration is made, underpinned by an assumption that unless the declaration is made, discovery is not necessary for the orderly disposal of proceedings. Accordingly, noting the mandatory considerations, discovery should be approached on the basis that discovery should be refused unless the making of an order requiring a party to give discovery would be likely to contribute to the fair and expeditious conduct of the proceeding or there is some other relevant matter that would mean that an order would be in the interests of “the administration of justice”. That phrase is to be understood by reference to the statutory scheme and the presumption that discovery is not usually necessary for the fair and expeditious disposal of the proceeding: Russel v Macquarie Bank Limited [2020] FCA 1332 at [50], [57]; Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442 at [51]-[54]. So much may be accepted, and the applicants’ contention that there is no presumption in s 176 of the FCFCOA Act against discovery must be rejected as being contrary to prevailing authority.
It may also be accepted that although relevance must be a factor in assessing whether it is appropriate, in the interests of the administration of justice to allow discovery, and which may also be a factor in determining whether discovery will be likely to contribute to the fair and expeditious conduct of proceedings, and is independently otherwise relevant under s 176(3)(b) of the FCFCOA Act, relevance alone does not appear to be a sufficient basis to warrant a declaration: Abrahams v Qantas Airways Ltd (No. 2) [2007] FMCA 639, 210 FLR 314 at [22]. In Abrahams, Lucev FM summarised at [25] some matters identified in earlier cases that might be relevant in deciding whether allowing discovery is appropriate, in the interests of the administration of justice, and in considering whether allowing discovery would be likely to contribute to the fair and expeditious conduct of the proceedings, including:
·the relevance of any documents sought to be discovered;
·the volume of documents sought to be discovered;
·whether discovery would narrow the issues;
·whether both parties seek discovery;
·whether there is consent to discovery;
·whether discovery is “of benefit” in the litigation; and
·the effect of discovery on litigants, especially, vulnerable litigants.
Though not an exhaustive list of relevant matters, I gratefully adopt them as relevant and the parties appear to agree, at least on so much.
As is evident from the text of s 176(3) of the FCFCOA Act, an important consideration in deciding whether discovery is appropriate in the interests of the administration of justice, is whether it “would be likely to contribute to the fair and expeditious conduct of the proceedings”: s 176(3)(a). And as just noted, addressing questions about the relevance and volume of documents sought by discovery, whether discovery might narrow the issues in dispute, whether discovery would be of benefit in the litigation, and the effect of discovery on the parties, will help to crystallise that important consideration as well as the overarching consideration.
An examination of the claim filed by the applicants discloses that they allege the respondent took adverse action against the first applicant in contravention of s 340 of the FW Act. If they are to succeed, the applicants must therefore relevantly establish that: the first applicant in the instant case exercised one or more workplace rights that are identified in s 341(1); the respondent took adverse action against the first applicant; and that it did so relevantly because (meaning for the reason, or for reasons including the reason: s 360) the first applicant exercised the workplace right(s). The applicants’ request for discovery is confined to the respondent’s reason for taking the adverse actions alleged.
As the applicants point out, there is an “obvious and consequential” information asymmetry between the applicants and the respondent. The respondent knows who the relevant decision-makers were and their reasons for acting. This is the rationale for the statutory presumption in s 361 of the FW Act earlier discussed – because reasons the respondent took particular actions are peculiarly within its knowledge. I also accept that this asymmetry is a reason why allowing discovery would be likely to contribute to the fair and expeditious conduct of this proceeding, and is therefore appropriate, in the interests of the administration of justice. In the instant case, there appears an imbalance between the parties and their knowledge of the reasons for the respondent’s actions, as well as their respective capacity to acquire or obtain such knowledge. Apart from documents the respondent might choose to lead through its evidentiary case about the respondent’s reasons, the applicants are unlikely to have knowledge nor possess the means to obtain knowledge about documents that exist which are relevant to the respondent’s reasons.
The operation of the statutory presumption in s 361 of the FW Act is not an answer to discovery of documents relating to the respondent’s reasons. In seeking to discharge the statutory presumption, the respondent has information peculiarly within its knowledge and has choices about what information to disclose in its case in chief. As the applicants correctly point out, information may, within ethical bounds, be forensically deployed in a manner that is most advantageous to the respondent’s case – it is entitled to decide what information to use to rebut the presumption and it may withhold information that does not assist. All the more so when adverse action may be taken by a person for multiple reasons, only one of which need be a prohibited reason to make good a contravention.
I also consider that the applicants’ request for discovery is directed to a narrow and targeted set of documents which are directly relevant to the facts in issue – the reasons for the adverse action alleged. Discovery of such documents will likely be probative of those facts. The availability of such documents will also allow the applicants to better understand the available documentary evidence about the respondent’s reasons, allowing it to better assess their case and prospects, and more likely contribute not only to the preparation for mediation but also by enhancing the prospect of mediation being successful where parties are on an equal footing as to their knowledge about what the documents say about the respondent’s reasons. Even if mediation fails, the issues in dispute may be narrowed, which would also facilitate the fair and expeditious conduct of the proceeding.
I do not consider that any significant burden will be visited on the respondent by allowing discovery because, as already noted, the category of any documents which the applicants seek is confined to documents that are directly relevant to the respondent’s reasons. I do not accept the respondent’s contention that allowing discovery of documents, even in the confined category sought, would be onerous because of the uncertainty in the way some of the forms of adverse action said to have been taken are described and the multiplicity of persons involved. This according to the respondent would make enquiries as to the existence of documents relevant to reasons a time-consuming and expensive exercise. The first and most obvious retort to the respondent’s contention is that the respondent has filed a response in which it denies any adverse action was taken for a prohibited reason. It has not made a request of the applicants to better particularise their description of the various forms of adverse action alleged. It may be inferred that the respondent, particularly one acting as a model litigant, in preparing the response, understood each form of adverse action that was alleged, identified who was involved in the taking of each form of adverse action and made reasonable enquiries about the reasons the identified action was taken and the circumstances in which the action was taken.
Moreover, without reproducing the allegations made in the applicants claim, the circumstances of the injury, its exacerbation, the probation extension decision, and the dismissal of the first applicant, which are said to constitute the first through to the fourth claims of adverse action, are confined by the identity of the persons involved in the taking and the date on which each form of adverse action is said to have been taken. The four forms of adverse action alleged are said to have been taken on 5 March 2024, in or around March 2024, on 6 May 2024 and the dismissal which is communicated by letter dated 13 December 2024. The dates are recent and cover a period of slightly over 10 months. The respondent is a large public sector employer and the relevant employees with whom enquiries about the existence of documents would need to be made would likely all be employed in the same education Department. As a governmental body, the respondent would likely have sophisticated document management systems in place and documents that would be responsive to any order for discovery would likely be numerically small and readily accessible by the respondent. The respondent is also likely to have sufficient resources to deploy in identifying and locating documents that are relevant to the narrow inquiry, so that the task is unlikely to be burdensome.
The respondent’s criticism of the applicants in not requesting documents under r 14.10 of the Rules, takes the matter no further. Apart from the fact that it seems to be accepted that most of the documents to which reference is made in the materials currently filed in the proceeding are already in the possession of the applicants, these documents are unlikely to capture the full scope of documents directly relevant to the reasons for the respondent taking the adverse action alleged. That such a request has not been made in the circumstances is not an answer to the question whether discovery would in the instant case be likely to contribute to the fair and expeditious conduct of the proceeding.
The documents the applicants seek be discovered are about a subject that is peculiarly within the knowledge of the respondent. As I have already observed, the reasons the respondent took the adverse action alleged is not within the knowledge of the applicants, and they have no means, other than through a trial, to obtain that knowledge. Without discovery, and despite the effect of s 361 of the FW Act, a trial may not disclose all the respondent’s reasons. And as the applicants have pointed out, this results in a significant imbalance in the conduct of the proceeding. Whilst this may be said about several general protections dismissal proceedings in this Court, I am concerned with this proceeding and amongst other things, whether in this proceeding allowing discovery would likely contribute to its fair and expeditious conduct. Moreover, that the circumstances in this case might also be raised in other cases does not mean that it is not appropriate, in the interest of the administration of justice, to make a declaration under s 176(2) of the FCFCOA Act. Section 176(2) is not a bar to discovery. Discovery is allowed if a declaration is made.
Finally, as to the respondent’s suggestion that the applicants chose to bring the proceeding in this Court rather than the Federal Court knowing the limitation on the availability of discovery, and so should be held to the consequences of that choice, that contention says nothing about whether it is appropriate, in the interests of the administration of justice, to allow discovery. As I have already noted, s 176(2) of the FCFCOA Act is not a bar to discovery. The applicants’ choice of forum is not indicative of their desire to obtain discovery or the appropriateness of it. It might just as well be the case that the applicants chose to bring their application in this Court knowing that they would seek limited discovery, and confident in their assessment that they could persuade the Court to make the requisite declaration allowing discovery. Moreover, the import of the respondent’s contention is that access to discovery in this Court would be dictated by the choice of forum made by an applicant, rather than the actual test, whether discovery in a given case is appropriate, in the interests of the administration of justice taking to account the matters in s 176(3).
Given the matters discussed above, I consider that it is appropriate, in the interests of the administration of justice, to allow discovery in the limited form proposed by the applicants. I consider that allowing discovery would likely contribute to the fair and expeditious conduct of the proceeding because it would correct the imbalance discussed, would facilitate meaningful mediation and may lead to a narrowing of the issues. As I explained, the number of documents likely to be caught by the request will not be voluminous, the number of individuals with whom enquiries are to be made is not great, the individuals involved in relevant decisions are identified, as are the dates on which the adverse action is alleged to have been taken. The request as confined is not onerous. For these reasons, I consider the Registrar was correct to make a discovery declaration under s 176(2) of the FCFCOA Act. But to avoid any doubt about the validity of the declaration made and as this is a hearing de novo, I will make a declaration under s 176(2).
Form of orders
As to the form of orders, whilst the respondent accepted that the form of discovery order the applicant proposed is clearer than that which the Registrar made, it was nevertheless uncertain because it sought documents relevant to reasons for various forms of adverse action which, as earlier discussed, the respondent contends are unclearly described. For the reasons earlier given that criticism is rejected, but to encourage greater clarity the orders I make will be referrable to the paragraphs in the applicants’ claim to describe various forms of adverse action said to have been taken by the respondent against the first applicant.
I consider, and parties agree, that Order 3 made by the Registrar is uncertain and although the parties have reached common ground about how that order ought be interpreted, orders of this Court have consequences. They should be clearly drafted and should not be subject to negotiation between the parties to determine by agreement what they mean. Consequently, I will set aside the discovery orders made by the Registrar, even though I consider, albeit for different reasons, that the Registrar correctly concluded that it is appropriate, in the interests of the administration of justice, to allow discovery.
For these reasons, save for the respondent’s complaint about the form of the Registrar’s Order 3, the remainder of the review application will be dismissed.
Further orders and whether oral evidence in chief should be given about the respondent’s reasons for taking action?
As earlier noted, the parties agree and urge the Court that further orders for the conduct of the proceeding should be made. Save for the issue of discovery which I have resolved, the parties are largely in agreement about the further orders that should be made. The area about which they disagree and which they ask the Court to resolve is about the way some of the evidence at trial should be given. The respondent accepts that some evidence in chief may need to be given orally but wishes to defer consideration of that issue until after the applicants have filed and served material in reply. The respondent says that after the filing of evidence, respective counsel will confer as to which of the paragraphs of the affidavits filed deal with topics which should be produced in chief by oral evidence. The respondent proposes that if there is agreement about those matters a document recording that agreement will be filed.
The applicants propose that evidence about reasons for taking the adverse action alleged should be given orally in chief and that an order to that effect be now made. It says that that is their position now, and will continue to be their position and that under the respondent’s proposal the parties will need to return to the Court to resolve that issue unless the respondent agrees to that course in the conference of counsel it proposes. The applicants say that the assessment of evidence given by persons about the reasons for taking particular action will require the Court to make an assessment about the credit of such persons, and credit is best assessed when a person gives their evidence orally to the best of their recollection in the witness box without the benefit of a sanitised and well-worked and legally-crafted affidavit.
I agree with the applicants. I accept that the credit of persons giving evidence about reasons will be important and should be assessed while that person gives evidence in chief orally about the reasons for taking action. And to ensure there is no real surprise, there will be provision in the orders for outlines of anticipated evidence to be given by persons in respect of the reasons for taking the adverse action alleged. Making the form of order as proposed by the applicants instead of adopting the course proposed by the respondent has the added benefit of efficiency and certainty as the parties will now know how they must prepare their respective cases while removing the additional step of requiring counsel to confer about what, if any, in-chief evidence should be given orally at trial. It also removes the prospect of requiring the Court to later resolve any disagreement about what evidence in chief should be given orally at trial. All of this is consistent with the overarching purpose of the Rules and s 190 of the FCFCOA Act. The remainder of the orders proposed which were earlier agreed will also be made.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 16 May 2025
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