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
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…
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- Furnari v Forms Express Pty Ltd [2025] FedCFamC2G 525
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- [2025] FedCFamC2G 525
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CaseChat Overview and Summary
Orders
Orders of the court
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
1.
These reasons concern an interlocutory dispute over competing applications for discovery.
2.
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.
3.
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]
4.
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.
5.
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
6.
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
7.
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]
FURTHER DIRECTIONS & INTERIM HEARING
8.
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
9.
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
10.
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]
11.
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]
12.
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]
13.
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.
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.
15.
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
16.
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]
17.
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]
18.
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.
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]
SUBMISSIONS IN REPLY BY RESPONDENT
20.
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.
21.
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
22.
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).
23.
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
24.
The relevant legislative provisions with respect to discovery in this Court are as follows.
25.
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.
26.
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.
27.
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
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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.