Furnari v Forms Express Pty Ltd
[2025] FedCFamC2G 525
•16 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Furnari v Forms Express Pty Ltd [2025] FedCFamC2G 525
File number(s): MLG 2266 of 2023 Judgment of: JUDGE O'SULLIVAN Date of judgment: 16 April 2025 Catchwords: INDUSTRIAL LAW – alleged contravention of general protections – termination of employment – alleged underpayments
PRACTICE AND PROCEDURE – discovery – requirements for declaration concerning discovery – discovery exception not the rule
Legislation: Fair Work Act 2009 (Cth) ss 45, 323, 351
Federal Circuit Court of Australia Act 1999 (Cth)
Federal Magistrates Act 1999 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 176, 190, 191, 192
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 1.04, 14,02
Federal Circuit Court of Australia Rules 2001 (Cth)
Federal Magistrates Court Rules 2001 (Cth)
Cases cited: Abrahams v Qantas Airways (No.2) [2007] FMCA 639; (2007) 210 FLR 314
Australasian Meat Industry Employees Union v Dick Stone [2022] FCA 512
Australian Building & Construction Commissioner v CFMEU & Ors (No.5) [2018] FCCA 1100
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442
Dixon v Watpac [2022] FedCFamC2G 778
Farac v Pendal Group Limited (No.5) [2023] FedCFamC2G 274
Gambro Pty Ltd v Fresenius Medical Care Australia Pty Ltd [2002] FCA 1359
Hamlan Homes Pty Ltd trading as Hamlan Homes and Geelong Homes v Levonix Homes Pty Ltd (No.2) [2024] FedCFamC2G 1024
Hartnett Legal Services Pty Ltd v Ballantyne [2016] FCA 1116
Re Gorm; Ex parte Co-operative Building Society of South Australia [1989] 86 ALR 275
Vinden v Wrong Fuel Rescue Pty Ltd [2019] FCCA 1091
Division: Division 2 General Federal Law Number of paragraphs: 46 Date of last submission/s: 14 April 2025 Date of hearing: 14 April 2025 Place: Melbourne Solicitor for the Applicant: In person Solicitor for the Respondent: Gilchrist Connell ORDERS
MLG 2266 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR TEO FURNARI
Applicant
AND: FORMS EXPRESS PTY LTD
Respondent
ORDER MADE BY:
JUDGE O'SULLIVAN
DATE OF ORDER:
16 APRIL 2025
THE COURT ORDERS THAT:
1.The application in a proceeding filed 24 December 2024 and the response to the application in a proceeding lodged 6 February 2025 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
INTRODUCTION
These reasons concern an interlocutory dispute over competing applications for discovery.
On 15 December 2023, Mr Teo Furnari (the applicant) commenced proceedings in the Fair Work Division of the Court against Forms Express Pty Ltd (the respondent). By way of background, the applicant worked for the respondent between August 2021 and September 2023. In short, in the pleadings filed on his behalf, the applicant claims adverse action was taken against him by the respondent in contravention of the general protections provisions of the Fair Work Act 2009 (Cth) (“FW Act”) both during and up to the termination of his employment. He also claims a breach of s 351 of the FW Act. There are also claims by the applicant that the respondent breached ss 45 & 323 of the FW Act. Whilst acknowledging the applicant was made redundant (and this was adverse action) the respondent denies any breach or contravention of the FW Act.
After the parties had filed amended pleadings on 7 May 2024 Registrar Hird made orders and directions for the proceedings to be listed for trial before a Judge of the Court. Whilst it appears the applicant’s solicitor at the time prepared an application in a proceeding and supporting affidavit seeking discovery before it was filed, and on 3 September 2024, when both parties were represented, a different registrar, Registrar Wilson, made the following orders in chambers:
THE COURT NOTES THAT:
A.Pursuant to s 176(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), it is in the interests of the administration of justice for the respondent to give discovery in relation to the classes of documents set out in the table in the schedule to the Orders below.
THE COURT ORDERS BY CONSENT THAT:
1.By 4 October 2024, the respondent file an affidavit of documents pursuant to r 14.03 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) in relation to the classes of documents set out in the schedule to the Orders below.
2.By 7 October 2024, the respondent provide the applicant with inspection of documents referred to in its affidavit of documents, except for any documents in respect of which the respondent objects to inspection.
3. Costs be reserved.[1]
[1] The schedule referred to in the orders of Registrar Wilson is Annexure A to these reasons.
The parties subsequently agreed to adjustments to the directions for filing material for trial and on 7 November 2024 orders to that effect were made. On 8 November 2024, the applicant filed an affidavit which inter alia purported to describe, verbatim, conversations had with a number of the respondent’s employees. At a directions hearing on 21 November 2024 there were amongst other things further adjustments made to the directions to ready the matter for trial. The applicant’s solicitors then filed a notice of ceasing to act on 3 December 2024.
After correspondence between the respondent’s solicitors and the applicant, appears to have reached an impasse (concerning a request by the respondent for any transcript of the conversations referred to in the above- mentioned affidavit) the respondent was advised by my associate that (rather than raise the matter via inappropriate emails to the Court) any application they wished to make as a result of that impasse should be made formally.
RESPONDENT’S APPLICATION IN A PROCEEDING
On 24 December 2024, the respondent filed an application in a proceeding, with an affidavit of Ms Toumbourou in support, seeking discovery from the applicant and orders from the Court as follows:
THE COURT DECLARES THAT:
A.Pursuant to s 176(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), the Court declares that it is appropriate in the interests of the administration of justice to allow discovery in relation to the categories of documents set out in order 1 herein.
THE COURT ORDERS BY CONSENT THAT:
1.On or before 6 January 2025, the Applicant is to make disclosure to the Respondent of any and all:
(a) audio recordings; and
(b) transcripts,
of the meetings alleged at paragraphs 121-128 [the 11 April 2023 meeting], 132- 138 [11 July 2023 meeting], 143-144 [8 September 2023 meeting], 146 [14 September 2023 meeting], 148 [15 September 2023 meeting] and 149 [19 September 2023 meeting] of the Applicant’s affidavit sworn on 8 November 2024.
2.By 4.00pm on 14 February 2025, the Respondent is to file and serve affidavits of evidence in chief.
3.The Applicant is to file and serve any affidavits in reply by 4.00pm on 6 March 2025.
4.By 4.00pm on 7 March 2025 the Applicant is to file and serve an electronic paginated joint Court Book incorporating:
(a) the current version of the pleadings;
(b)all evidence filed and served by the Applicant and Respondent in the proceeding.
5.By 4.00pm on 14 March 2025, the Applicant is to file and serve an outline of opening submissions.
6.By 4.00pm on 21 March 2025, the Respondent is to file and serve an outline of opening submissions.
7.By 4.00pm on 28 March 2025, the parties are to exchange objections to evidence and confer in relation to those objections so that only the outstanding objections are considered by the Court.
8.By 28 March 2025 the parties confer and file a joint statement in tabular form containing:
(a) a description of the nature of the claim(s);
(b) reference to the relevant paragraph(s) in the pleadings;
(c) reference to the relevant statutory provision(s);
(d) agreed facts;
(e)facts requiring determination by the Trial Judge with references to the relevant paragraphs of the affidavits which go to each factual dispute;
(f)any relief sought including quantum or total value of the compensation sought;
(g)whether the whole or any part (and if so which part) of the claim is disputed.
9. There be liberty to apply.
10. The parties’ costs be reserved.
RESPONSE TO APPLICATION IN A PROCEEDING
On 6 February 2025 the applicant lodged, what purported to be, a response with an affidavit in support opposing the respondent’s application in a proceeding, but which actually sought the following orders:
1.The Application lodged on 24 December 2024 by the Respondent in the matter be dismissed.
2.The Respondent's solicitors provide copies of documents and correspondence sent to or received from Slater&Gordon in relation to this matter during the period 1 July 2024 to 30 November 2024.
3.The Court declares that pursuant to s 176(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), it is in the interests of the administration of justice for the Respondent to give discovery in relation to the classes of documents listed in the Schedule included in the Affidavit of Teo Furnari sworn 5 February 2025.
4.Within 7 days, or such time as ordered by the Court, the respondent file an Affidavit of documents pursuant to Rule 14.3 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Ct) in relation to the classes of documents listed in the Schedule referred to above.
5.Within 7 days, or such time as the Court orders, the Respondent provide the Applicant with copies of documents referred to in its affidavit of documents.
6.The hearing date of the matter, currently 14 April 2025, be rescheduled due to the failure of the Respondent to comply with previous orders and to allow the Applicant time to prepare the case.
7. Such further orders that the Court may deem necessary.
8. The Parties have liberty to apply.
9. The parties’ costs be reserved.[2]
[2] The ‘Schedule’ referred to in those proposed orders is Annexure B to these reasons.
FURTHER DIRECTIONS & INTERIM HEARING
Given the interlocutory applications made by both of the parties, the matter was listed for a further directions hearing on 13 February 2025, there were orders made vacating the trial and the directions that had been made for that purpose and for the parties to file written submissions in support of the orders they each sought and the matter was listed for an interim hearing. At that hearing the applicant appeared in person, the respondent was represented by Mr Scougall, Solicitor and both parties told the Court they relied on those submissions to which I now turn.
SUBMISSIONS IN SUPPORT OF RESPONDENT’S APPLICATION
The respondent’s written submissions filed 27 February 2025 (omitting formalities, recitation of the procedural history and the relevant statutory provisions) were in summary that the documents sought in the respondent’s application:
(a)were a single class of documents and would assist in the fair and expeditious conduct of proceedings;
(b)would enable a fair trial and enable it to properly put forward its case;
(c)the best evidence of what was said by the witnesses in the relevant meetings and assist the Court to resolve the issues in dispute;
(d)were no wider than what is necessary and properly justified as discovery would lend to the fair and expeditious conduct of the proceedings;
(e)were relevant to matters arising on the pleadings which are denied or not admitted;
(f)would not prejudice the applicant and should be discovered before the respondent prepared its evidence-in-chief which would assist in the fair and expeditious conduct of the proceeding; and
(g)should be the subject of a declaration and orders for discovery as that would enable justice to delivered “effectively and efficiently” and “as quickly, inexpensively and efficiently as possible”.
SUBMISSIONS IN SUPPORT OF RESPONSE BY APPLICANT
The applicant’s written submissions filed 13 March 2025 were roundly critical of the respondent[3] and his former solicitors.[4] Whilst acknowledging the respondent had provided an affidavit of documents[5] the applicant said the “majority of the documents sought were either not provided at all” or he said “documents were provided which had no relation to the items on that Schedule”.[6]
[3] see for e.g. paragraphs 4,7 & 8.
[4] see for e.g. paragraph 6.
[5] as had been provided for in Registrar Wilson’s orders.
[6] see paragraph 8.
The applicant’s submissions proceeded to set out his version of the contact with the respondent’s solicitors after his former solicitors had ceased to act.[7] The applicant’s submissions variously suggested the respondent and/or its solicitors (it wasn’t often clear which) had behaved either inappropriately[8] or incompetently (or, it appeared from the submissions at least at times, both).[9]
[7] see paragraphs 11-33.
[8] see for e.g. paragraph 16 or 27.
[9] see for e.g. paragraphs 12-31, 48.
The applicant repeatedly submitted he’d been either “excluded”[10] or had “no knowledge”[11] of what had gone at Court when he was represented.[12] The applicant’s submissions appeared to be motivated by an ongoing grievance (as he didn’t believe his former solicitors had adequately dealt with it) that certain items had not been included in the schedule to the orders of Registrar Wilson.[13]
[10] see paragraph 35.
[11] see paragraph 43.
[12] see paragraph 43.
[13] see paragraph 44.
The applicant also sought to characterise some of the orders he sought as the respondent being required to provide him with documents which were said to have been sent to or received from his former solicitors.[14]
[14] see paragraph 34.
The applicant’s submissions referred to rule 1.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth, and without a hint of irony, were critical of the respondent’s conduct in that context.
The applicant went on in his submissions to say he did not “believe it necessary” to “revisit” the issue of whether it was necessary (for the Court) to make a declaration for discovery[15] before simply saying in relation to the documents in the application he was actually making in his response:
46. Each document sought in the Schedule is in the possession of the Respondent.
47.Each document sought in the Schedule is directly relevant to the issues raised in the original Form
[15] see paragraph 44.
The balance of the applicant’s submissions took issue with the orders sought in the respondent’s application in a proceeding and sought to explain why he opposed the orders sought therein.[16]
[16] see paragraphs 48-52.
Indicative perhaps of the applicant’s lack of legal training,[17] and (from his submissions at least) willingness to perceive things he disagreed with or didn’t get as a slight was the following:
53.The Respondent seeks, by its “Minute (sic) of Proposed Consent Order”, orders “pursuant to Rule 10.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 being considered in Chambers and there being no need for an appearance by the parties”. This is another example of the dishonest conduct on behalf of the Respondent, as Rule 10.04 does not apply to the Application lodged 24 December 2024 and none of the orders listed are by consent.[18]
[17] An example of this was the applicant’s reference to rule 14.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) at paragraph 50.
[18] The applicant also didn’t appear to have turned his mind to whether the respondent had mistakenly replicated the draft orders that it had first proposed to him in late 2024. There is also the aphorism that given the choice between a conspiracy and a stuff up, one should usually choose a stuff up. As an example of the latter the respondent’s submissions filed 27 February 2025 at paragraph 8 acknowledged two mistakes in an affidavit from its solicitor Ms Toumbourou.
The applicant’s submissions also didn’t appear to have taken on board that because of the parties’ dispute over discovery the directions for trial had been vacated and the preparation of material for trial was in abeyance pending the resolution of that dispute.[19]
[19] see paragraph 52.
Finally, the applicant (straying beyond the scope of either extant directions in court orders or the orders sought in his own response to the application in a proceeding) impermissibly sought that summary judgment be entered against the respondent.[20]
[20] see paragraph 54. A summary judgment application should be made in proper form and not in submissions.
SUBMISSIONS IN REPLY BY RESPONDENT
The respondent’s reply submissions (again omitting formalities, the rehearsal of the procedural history and what was said to be the “authorities”) opposing the orders sought by the applicant in his response were:
(a)in so far as the orders sought by the applicant required it to provide the applicant with correspondence between its solicitors and the applicant’s former solicitors this was not expressed as an order for discovery, the basis for same was not explained, in any event the class of documents was not appropriate for discovery and the applicant should get those documents from his former solicitors;
(b)the respondent had complied with the orders of Registrar Wilson (and subsequently provided the documents to the applicant after his former solicitors had ceased to act);
(c)to the extent the documents now sought by the applicant (were not ‘identical’ to those in the schedule to the orders of Registrar Wilson) an order now for discovery of same was opposed as it was inter alia prejudicial, would not result in the fair and expeditious conduct of the proceedings; and
(d)in so far as the documents now sought range beyond the above (see items 23-30 of Annexure B) the requests were opposed, as they were overly broad, do not relate to issues in dispute, would require reviews that were highly burdensome and costly and would not contribute to the fair and expeditious conduct of the proceedings.
Finally, the respondent’s reply submissions contained the ‘novel’ observation that “[N]otwithstanding the introductory note” to the orders of Registrar Wilson (see the orders replicated at paragraph 3 of these reasons) “a declaration had not been made by the Court or a Judge” under s 176(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
LEGISLATIVE PROVISIONS - OVERARCHING CIVIL PRACTICE AND PROCEDURE
In considering whether to grant discovery the Court must have regard to the overarching civil practice and procedure obligations under s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”), which provides as follows:
(1)The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
(2)Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court's overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3)The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4)The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court;
(b)any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).
Section 190 of the FCFCOA Act, read with ss 191and 192 thereof, sets out the overarching purpose of civil practice and procedure provisions which is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. A number of relevant important objectives are included therein, including:
(a)the efficient use of the judicial and administrative resources of the Court;
(b)efficient disposal of the Court's overall caseload; and
(c)disposal of all proceedings in a timely manner, and the just resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
LEGISLATIVE PROVISIONS - DISCOVERY
The relevant legislative provisions with respect to discovery in this Court are as follows.
Section 176 of FCFCOA Act 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.
Rule 14.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“GFL Rules”) provides:
(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.
Section 176(2) and (3) of the FCFCOA Act are relevantly in the same terms as the former s 45(2) and(3) of both the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) and the Federal Magistrates Act 1999 (Cth) (“FM Act”). Rule 14.02 of the GFL Rules is relevantly in the same terms as the former r 14.02 of both the Federal Circuit Court of Australia Rules 2001 (Cth) and the Federal Magistrates Court Rules 2001 (Cth).
APPROACH TO APPLICATION FOR DISCOVERY
Relevant considerations in determining whether to make a declaration that discovery is in the interests of the administration of justice were summarised in Abrahams v Qantas Airways (No.2) [2007] FMCA 639; (2007) 210 FLR 314 (“Abrahams”) at [25] per Lucev FM, by reference to what was then the FM Act, where the Court said at [25]:
In summary, it appears that in order to obtain an order for discovery in this Court the Court must determine on the available evidence that it is in the interests of the administration of justice to do so, and in making that determination must have regard to whether allowing discovery would be likely to contribute to the fair and expeditious conduct of the proceedings, and such other matters as the Court considers relevant. Those other matters might include:
(a) the relevance of any documents sought to be discovered;
(b) the volume of documents sought to be discovered;
(c)whether there is a court book containing relevant documents, and the extent to which relevant documents are included in the court book;
(d) whether discovery would narrow the issues;
(e) whether both parties seek discovery;
(f) whether there is consent to discovery;
(g) whether discovery is ‘of benefit” in the litigation; and
(h) the effect of discovery on litigants, especially, vulnerable litigants.
In Hartnett Legal Services Pty Ltd v Ballantyne [2016] FCA 1116 (“Hartnett Legal Services”), the Federal Court dealt with the issues of relevance and disclosure generally for the purposes of s 45 of the FCCA Act and r 14.02(2) of the Federal Circuit Court of Australia Rules 2001 (Cth), and at [33] per Rangiah J observed that:
Fourthly, it would be quite inconsistent with s 45 of the FCC Act to construe “disclosure generally” as importing a wide test of relevance. The ‘Peruvian Guano’ test was formulated on the basis of a desire to” make the rule as large as we can with due regard to propriety”…. In contrast, s 45 operates to cut down the circumstances in which discovery may be ordered. It would be inconsistent with s 45 to interpret “discovery generally” as referring to the traditional test for discovery when, as Lucev FM observed in Abrahams, traditional discovery is generally prohibited in the Federal Circuit Court.
In Vinden v Wrong Fuel Rescue Pty Ltd [2019] FCCA 1091 (“Vinden”) at [10]-[13] per Judge Kendall the then Federal Circuit Court observed as follows:
(a)that overall, there is a reluctance in this Court to grant orders for discovery and interrogatories, and referred to Vanden Driesden v Edith Cowan University [2012] FMCA 735; (2012) 269 FLR 422; (2012) 226 IR 452; (2012) 64 AILR 101-754, where the then Federal Magistrates Court had referred to the power to issue interrogatories as one that is “rarely used”: at [64] per Lucev FM;
(b)section 45(1) of the FCCA Act is a general statutory prohibition on discovery; and
(c)that in this Court there appears to be a presumption that the “fair and expeditious conduct of a proceeding does not require discovery”, referring to Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442 at [54] per Lander J.
It follows that discovery is very much the exception and not the rule in the practice and procedure of this Court, and traditional discovery is generally prohibited.[21]
[21] Hartnett Legal Services at [33] per Rangaiah J; Vinden at [10] per Judge Kendall.
CONSIDERATION
In this dispute both parties seek a declaration from the Court that it is in the interests of the administration of justice for there to be discovery so they can each get the orders in relation to discovery they now seek. This is so even though the respondent has already given discovery by way of classes of documents following Registrar Wilson’s orders. This was verified by an affidavit affirmed by its Chief Operating Officer Mark Kuch and filed 7 October 2024. The respondent’s submissions would now seem to characterise that discovery as ‘informal’ or at least not made following a declaration that it was in the interests of the administration of justice.[22] Despite what is in the plain words of what was the “notation” at the beginning of Registrar Wilson’s orders the applicant appears to say there was a declaration made by the Court[23] but doesn’t believe the discovery was satisfactory.[24] This appears to be a significant motivating factor for the discovery orders sought by the applicant.[25]
[22] see Devine Marine Pty Ltd v Fair Work Ombudsman [2013] FCA 442 at [80] where it was said “without a declaration no order could have been made.”
[23] see paragraph 42 of applicant’s submissions filed 13 March 2025.
[24] The authorities on the obligations on a party required to give discovery in the Federal Court are summarised in Re Gorm; Ex parte Co-operative Building Society of South Australia [1989] 86 ALR 275 at 278.
[25] The nub of this complaint appears at paragraph 20 of the applicant’s affidavit lodged 6 February 2025 where he says a “Schedule” filed by the respondent “did not contain a full list of documents that are relevant to the matter as I had not consented to the contents when consent orders were agreed to by my former legal representatives without my knowledge”.
In Australian Building & Construction Commissioner v CFMEU & Ors (No.5) [2018] FCCA 1100, Judge Manousaridis considered the proper construction of the predecessor of s 176(2) of the FCFCOA Act and the predecessor of r 14.02 of the GFL Rules.
There is a presumption that for proceedings in this Court the “fair and expeditious conduct of a proceeding does not require discovery” (see Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442 at [54] per Lander J). That this dispute has occurred, grown “like topsy” and involves the matters chronicled above, would suggest there is a sound basis for that presumption in the context of the FCFCOA Act and the GFL Rules. In any event the order is discretionary and an applicant for such an order bears the onus of satisfying the Court that the documents are necessary.
The submissions of both parties focused on relevance but that is no longer the sole test (see Hartnett Legal Services at [33] per Rangaiah J) and too little on the statutory requirements under ss 176(2) & (3) and 190 of the FCFCOA Act. In a legal framework that emphasises the pursuit of fair and expeditious proceedings, an assessment that documents are relevant is a necessary but not decisive consideration.
When considering whether to make a declaration under s 176 of the FCFCOA Act the fair and expeditious conduct of the proceedings is a weighty consideration. The focus of that consideration is reinforced by the overarching purpose of civil practice and procedure provisions set out in s 190 of the FCFCOA Act. The overarching purpose requires the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible. That in turn embraces the objective of the just determination of all proceedings, the efficient use of the Court's time, efficient disposal of the Court's case load, disposal of proceedings in a timely manner and, perhaps most importantly, resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.[26]
[26] The authorities make clear that the costs involved in discovery are a relevant consideration: see Devine Marine Pty Ltd v Fair Work Ombudsman [2013] FCA 442 at [72]-[73].
Depending on the circumstances of the matter, the interests of the administration of justice can comprehend a variety of considerations, including those recited by Lucev FM in Abrahams v Qantas Airways Ltd (No 2) (2007) 210 FLR 314. In this case, however, what is relevant is that the trial of this proceeding had been listed for this month but because of this dispute it now needs to be relisted. As a result, the other considerations which are relevant are the ones the statute prescribes, fairness and expedition.[27]
[27] see Farac v Pendal Group Limited (No.5) [2023] FedCFamC2G 274 at [32].
In the context of the substantive dispute the applicant’s correct classification under the relevant award would fall to be determined by the principles such as those set out in Australasian Meat Industry Employees Union v Dick Stone [2022] FCA 512 at [163] whilst the principles applicable in general protection proceedings are those such as have been summarised by Judge Brown in Dixon v Watpac [2022] FedCFamC2G 778 at [19]-[30].
On the material before the Court there is an issue as to whether the form of discovery sought by the applicant is a form of discovery provided for in the GFL Rules.[28] Even if the documents sought were directly relevant a cursory examination of the classes themselves suggest they could be voluminous and that the costs of and time involved discovering them would outweigh the benefit to the interests of justice.[29] At the very least having regard to the scope of the matters in Annexure B, I cannot conclude that discovery would narrow the issues. I accept the criticisms of the orders sought by the applicant in the respondent’s reply submissions.[30]
[28] See Hamlan Homes Pty Ltd trading as Hamlan Homes and Geelong Homes v Levonix Homes Pty Ltd (No.2) [2024] FedCFamC2G 1024.
[29] In relation to some of documents sought at items 18,19,20,21, 22 it cannot be said in Australia that documents in the possession of a parent company can be taken to be within the control of the subsidiary for discovery purposes: Gambro Pty Ltd v Fresenius Medical Care Australia Pty Ltd [2002] FCA 1359 at [16]. There is also the issue that the applicant as he has done in relation to the ‘informal’ discovery, would take issue with what he had been provided, which would not contribute to the expeditious conduct of the proceedings.
[30] see paragraphs 11-26 of reply submissions filed 20 March 2025.
Given the history of the matter, the ‘informal’ discovery already given and that the discovery of the documents now sought by the applicant (and their volume) would appear to do nothing to narrow the issues it would not be, in the Court's view, of benefit overall to the litigation. I am not confident that it would not be contentious and might even lead to the trial going off for a second time. This would not contribute to the fair and expeditious conduct of the proceedings.
The orders for discovery sought by the respondent concern either recordings or transcripts of its own employees. It should be recalled that at issue between the parties on the pleadings is inter alia whether the respondent made the impugned decision/s for a prohibited reason or for a reason that included a prohibited reason.
In relation to the documents sought by the respondent while the discharge of the s 361 onus usually requires a decision-maker to give direct evidence of their reasons for taking the adverse action, the determination of why an employer took adverse action against an employee is to be made in the light of all the circumstances established in the proceeding.[31]
[31] see Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [32].
The respondent’s application for discovery provides no evidence for the submission that the recordings and transcripts are “the best evidence of what was said” by the witnesses during the relevant meetings or on what grounds the submission is made they will provide an “accurate account of the conversations”. There is also no proper explanation for why the respondent has not sought to rely on other provisions of the GFL Rules such as r 14.10 or why an order for discovery itself is necessary for the determination of the issues in the proceedings.
Even if I had been satisfied that the documents sought by the respondent were directly relevant I am not satisfied it would be appropriate in the interests of the administration of justice to make the discovery orders sought by it for the reasons referred to in paragraphs 34 to 37 above.
Each of the factors set out and considered above weigh against the making of a declaration that an order for discovery (as sought by either party) is appropriate in the interests of the administration of justice and a finding that the fair and expeditious conduct of these proceedings requires such a declaration.
CONCLUSION
For the reasons set out above, I decline to make the orders in the application in a proceeding filed 24 December 2024 and the response to the application in a proceeding lodged 6 February 2025. I will otherwise make orders progressing the matter to a trial in the week beginning 10 November 2025 with revised directions for that purpose.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Sullivan. Associate:
Dated:16 April 2025
ANNEXURE A
No Document or category Relevance 1 Documents evidencing, referring to or relevant to Mr Furnari’s:
a. reporting to Mr Keene from 1 August 2022 onwards, as alleged in [2(e)] of the amended defence;
b. being a member of the Support Team led by Mr Keene, as alleged in [2(e)] of the amended defence;
c. continuing to report to Mr Keene despite supporting the Data Team, as alleged in [2(f)] of the amended defence.
Whether Mr Furnari is a member of both the data team and the support team is an issue in dispute: defence [2(c)]–[2(f)], [3(g)]. Mr Furnari says he is a member of both teams. The respondent says he is only a member of the support team. The documents sought are plainly relevant to that issue. The key issue in the case is the respondent’s real reasons for terminating Mr Furnari’s employment. The respondent says Mr Furnari was selected for redundancy because he had less experience in data processing than the other employees. Whether Mr Furnari was a member of the data processing team for the entirety of his employment (as he alleges in ASOC [3(g)]) is relevant to that issue. 2 Documents evidencing, referring to or relevant to information Mr Furnari provided to the respondent about his qualifications and work history on his recruitment to work for the respondent on or around 2 August 2021. There is a dispute about Mr Furnari’s classification: amended defence, [5]–[6]. The respondent’s case appears to be that Mr Furnari was not required to hold any qualifications or any have any particular work history to take up his role. At least, the respondent appears to say that the qualifications and experience Mr Furnari actually held were not required for his role. The discussions that occurred within the respondent about Mr Furnari’s qualifications and work history are relevant to whether the respondent can make out that case. 3 Documents setting out, explaining, training employees in respect of, or constituting the bespoke systems referred to in [7(b)] of the amended defence. There is a dispute about Mr Furnari’s classification: amended defence, [7]. The respondent’s case on this issue is that Mr Furnari learnt to use bespoke systems built by the respondent only after he commenced employment, and that learning to use those systems required only limited IT skills. Mr Furnari also says that he needed to modify aspects of the respondent’s systems. Whether the systems existed, and what they constituted, is relevant to whether Mr Furnari learnt those systems after he commenced employment and what skills were required to learn them. Indeed, Mr Furnari cannot meet the respondent’s case without knowing what the respondent says the bespoke systems were. 4 Documents evidencing, referring to or relevant to the training the respondent alleges was conducted in the particulars to [7(b)] of the amended defence. There is a dispute about Mr Furnari’s classification: amended defence, [7]–[8]. The respondent’s case on this issue is that Mr Furnari learnt to use bespoke systems built by the respondent only after he commenced employment, and that learning to use those systems required only limited IT skills. Mr Furnari also says that he needed to modify aspects of the respondent’s systems. Mr Furnari cannot meet the respondent’s case without knowing what training it relies on. 5 Documents evidencing, referring to or relevant to Mr Furnari’s:
a. reviewing the work of members of the respondent’s support team;
b. reviewing the work of members of the respondent’s data team;
c. assigning tickets or requests (howsoever described) to members of the respondent’s data team.
There is a dispute about Mr Furnari’s classification: amended defence, [7]–[8]. Mr Furnari says he was required to assign work to other members of the data and support teams and to review their work and to supervise other staff: ASOC, [7(c)]. The respondent admits Mr Furnari was required to assign support tickets to and peer review the work of his colleagues: amended defence [7(c)– [7(d)]. But the respondent appears to say that that assigning of tickets and peer reviewing did not constitute ‘assigning work’, ‘reviewing work’ or ‘supervising other staff’ for the purposes of the relevant definition in the Award. What Mr Furnari did by way of assigning of tickets and peer reviewing is therefore relevant to the issue of Mr Furnari’s classification. 6 Documents referring to or otherwise relating to:
d. the allegation that only managers were required to or did supervise the work of other staff in [7(e)] of the amended defence;
e. the allegation that only the manager of the data team could authorise formal testing or changes to the bespoke system in [7(f)] of the amended defence;
f. the allegation that only the team leader or senior manager of the data team provided formal training to staff in the data team in [7(g)] of the amended defence.
There is a dispute about Mr Furnari’s classification: amended defence, [7]–[8]. Mr Furnari says he was classified at level 3 of the Award because he supervised the work of others and assigned work to them, reviewed others’ work for accuracy and adequacy and modified Forms Express’ established guides to devise new approaches. The respondent’s case appears to be that:
- Mr Furnari could not have supervised the work of others, because only managers did that ([7(e)] of the amended defence);
- Mr Furnari could not have modified existing processes because only managers could authorise formal testing or changes to the bespoke systems ([7(f)] of the amended defence);
- Mr Furnari could not have supervised other employees because only team leaders or senior managers of the data team provided training to staff in the data team ([7(g)] of the amended defence).
The documents sought go to whether the respondent’s case on this issue could be correct. It is therefore relevant to the issue of Mr Furnari’s classification.
7 Documents authored by, sent to, or received by, Mr Furnari throughout his employment relating to:
a. problems or errors (howsoever described) with the following databases:
- eNotices;
- LG.
b. user acceptance testing of modifications made to the respondent’s base application;
c. errors with the respondent’s core application;
d. difficulties with processing customers’ data files.
There is a dispute about Mr Furnari’s classification: amended defence, [7]–[8]. Mr Furnari says that he was required to apply mature professional knowledge and deal with problems for which it was necessary for him to modify the respondent’s established guides and devise new approaches. That, he says, means he was properly classified at Level 3 of the Award: ASOC, [7(a)]– [7(b)]. The documents sought will evidence that Mr Furnari engaged in the activities listed in the particulars to [7(a)] and [7(b)] of the ASOC. They go directly to the issue of his classification. 8 Documents recording the ordinary hours and public holiday hours that Mr Furnari worked in the period between 2 August 2021 and 30 June 2022. The documents are relevant to the issue raised by [22(a)] of the amended defence and, as a result, the contraventions alleged in [30] of the ASOC. 9 Documents recording the ordinary hours, personal leave and public holiday hours that Mr Furnari worked in the period between 1 July 2022 and 30 June 2023. The documents are relevant to the issue raised by [31(b)] of the amended defence and, as a result, the contraventions alleged in [39] of the ASOC. 10 Documents recording the personal leave Mr Furnari took in the period between 1 July 2023 and 19 September 2023. The documents are relevant to the issue raised by [40(b)] of the amended defence and, as a result, the contraventions alleged in [48] of the ASOC. 11 Documents relevant to Mr Furnari’s entitlement to take, or possible taking of, time off in lieu of overtime in respect of overtime he worked in July and August 2022. The documents are relevant to the issue raised by [53] of the defence. 12 Documents evidencing, referring to or relevant to training in Microsoft Power Business Intelligence reporting system being provided to, or considered for, any one or more of the members of the respondent’s data team. The documents are relevant to the issue raised by [60] and [61] of the amended defence. The documents are, in particular, relevant to the respondent’s case that the only reason it did not provide training in Power BI was staff unavailability. 13 Documents relevant to the respondent’s consideration of Mr Furnari for the position of Data Team Leader as alleged in [66] of the amended defence. The documents are relevant to the issue raised by [67]–[68] of the amended defence, namely, the respondent’s real reasons for not promoting Mr Furnari to the position of data team leader on or around 22 February 2023. 14 All documents evidencing, referring to or relevant to the meeting attended by Mr Furnari, Wendy Parnell, Jamie Keene and Mark Kuch on 11 April 2023 (see ASOC [70]). The respondent’s real reasons for dismissing Mr Furnari are the key issues in dispute: amended defence, [82]. Mr Furnari says that his complaint/inquiry the meeting in respect of which the documents are sought was one of those reasons. The respondent says it was not: amended defence, [81]–[82]. Evidence of the complaint/inquiry, and what the respondent did and said about it, will go directly to the key issue in the dispute. 15 All documents evidencing, referring to or relevant to the meeting Mr Furnari attended with Vlad Shchelkunov on 11 July 2023
(see ASOC [73]).The respondent’s real reasons for dismissing Mr Furnari are the key issues in dispute: amended defence, [82]. Mr Furnari says that his complaint/inquiry the meeting in respect of which the documents are sought was one of those reasons. The respondent says it was not: amended defence, [81]–[82]. Evidence of the complaint/inquiry, and what the respondent did and said about it, will go directly to the key issue in the dispute. 16 All documents evidencing, referring to or relevant to Mr Furnari’s email to Vlad Shchelkunov and Cheryll Beurmer on 1 August 2023 (see
ASOC [76]).The respondent’s real reasons for dismissing Mr Furnari are the key issues in dispute: amended defence, [82]. Mr Furnari says that his complaint/inquiry the email in respect of which the documents are sought was one of those reasons. The respondent says it was not: amended defence, [81]–[82]. Evidence of the complaint/inquiry, and what the respondent did and said about it, will go directly to the key issue in the dispute. 17 Documents evidencing, referring to or relevant to discussions held by management employees of the respondent in the period between 1 July 2023 and 20 September 2023 concerning Mr Furnari’s:
a. race (namely, white, Caucasian or ‘Anglo’);
b. not being Indian;
c. speaking English;
d. not speaking an Indian language; and/or age.
The respondent’s real reasons for dismissing Mr Furnari are the key issues in dispute: amended defence, [82]. Mr Furnari says that his race and age were among those reasons. The respondent says it was not: amended defence, [81]– [82]. Evidence of discussions within the respondent about Mr Furnari’s race and age will go directly to the key issue in the dispute. 18 Documents evidencing, referring to or relevant to the review mentioned in paragraph (i) of the particulars to
[81] of the amended defence.The respondent’s real reasons for dismissing Mr Furnari are the key issues in dispute: amended defence, [82]. The respondent’s case is that the review in respect of which documents are sought was the driving reason behind the dismissal: amended defence [81]. The documents sought go directly to the key issue in dispute. 19 Documents evidencing, referring to or relevant to the merger of the data and application support teams mentioned in paragraph (ii) of the particulars to [81] of the amended defence. The respondent’s real reasons for dismissing Mr Furnari are the key issues in dispute: amended defence, [82]. The respondent’s case is that the need to conduct the merger in respect of which documents are sought was the driving reason behind the dismissal: amended defence [81]. The documents sought
go directly to the key issue in dispute.20 Documents relevant to the decision to make several positions redundant mentioned in paragraph
(ii) of the particulars to [81] of the amended defence.The respondent’s real reasons for dismissing Mr Furnari are the key issues in dispute: amended defence, [82]. The respondent’s case is that the need to make the redundancies in respect of which documents are sought was the driving reason behind the dismissal: amended defence [81]. The documents sought go directly to the key issue in dispute. 21 Documents relevant to Mr Furnari’s selection for redundancy as mentioned in paragraph (iii) of the particulars to [81] of the amended defence. The respondent’s real reasons for dismissing Mr Furnari are the key issues in dispute: amended defence, [82]. The respondent’s case is that the need to make the redundancies in respect of which documents are sought was the driving reason behind the dismissal: amended defence [81]. The documents sought go directly to the key issue in dispute. 22 Documents evidencing, referring to or relevant to the determination referred to in paragraph (ii) of the particulars to [81] of the amended defence. The respondent’s real reasons for dismissing Mr Furnari are the key issues in dispute: amended defence, [82]. The respondent’s case is that the determination in respect of which documents are sought was the driving reason behind the dismissal: amended defence [81]. The documents sought go directly to the key issue in dispute. 23 Documents evidencing, referring to or relevant to the offers referred to in paragraph (iv) of the particulars to [81] of the defence. The respondent’s real reasons for dismissing Mr Furnari are the key issues in dispute: amended defence, [82]. The respondent’s case is that the driving reason behind the dismissal was the restructure which involves the offers in respect of which documents are sought: amended defence [81]. The documents sought go directly to the key issue in dispute.
ANNEXURE B
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12
7