Fusca v Commonwealth of Australia

[2013] FCA 364

FEDERAL COURT OF AUSTRALIA

Fusca v Commonwealth of Australia [2013] FCA 364

Citation:		Fusca v Commonwealth of Australia [2013] FCA 364
Parties:		ROSARIO FUSCA v THE COMMONWEALTH OF AUSTRALIA AS REPRESENTED BY AUSTRALIAN FEDERAL POLICE
File number:		VID 215 of 2012
Judge:		KENNY J
Date of judgment:		19 April 2013
Catchwords:		DISCOVERY – Application for further discovery - Consideration of matters relevant to an application for standard discovery under rules 20.11, 20.13 and 20.14 of the Federal Court Rules 2011 – Orders for limited further discovery made.
Legislation:		Federal Court Rules 2011 (Cth) Fair Work Act 2009 (Cth)
Cases cited:		Dennis v Chambers Investment Planners Pty Ltd (2012) 201 FCR 321 Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 5
Date of hearing:	Determined on the papers
Date of last submissions:	15 February 2013
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	61
Solicitor for the Applicant:	Davies Lawyers
Solicitor for the Respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 215 of 2012

BETWEEN:	ROSARIO FUSCA Applicant
AND:	THE COMMONWEALTH OF AUSTRALIA AS REPRESENTED BY AUSTRALIAN FEDERAL POLICE Respondent

JUDGE:	KENNY J
DATE OF ORDER:	19 APRIL 2013
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The respondent make further discovery in accordance with paragraphs 35 and 56 of the reasons for judgment delivered in this matter on 19 April 2013.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 215 of 2012

BETWEEN:	ROSARIO FUSCA Applicant
AND:	THE COMMONWEALTH OF AUSTRALIA AS REPRESENTED BY AUSTRALIAN FEDERAL POLICE Respondent

JUDGE:	KENNY J
DATE:	19 APRIL 2013
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION

1. The substantive application in this proceeding is at risk of being lost in a discovery war. 

2. On 21 June 2012, the Court made discovery orders, which extended to discovery of 12 categories of documents.  Discovery pursuant to these orders produced many documents, which were made available to the applicant. 

3. On 18 September 2012, further orders were made, including that:

   …

   2.        Parties file any application for further discovery by 17 October 2012.

   3.Parties file submissions in respect of any application for further discovery by 9 November 2012.

   …

4. On 18 October 2012, the applicant filed a document entitled “Applicant’s Request for Further Discovery and Outline of Submissions regarding further discovery pursuant to the order of Justice Kenny made 18 September 2012”.  In this document, the applicant sought further standard discovery by the respondent of documents within some 19 of 23 categories of documents listed in a letter to the respondent dated 25 July 2012.  The parties have treated this document as the applicant’s application for further discovery. 

5. Subsequently, on 9 November 2012, the applicant filed written submissions.  The respondent filed submissions in response on 14 November 2012, followed by an affidavit of Kellie Renee Schluter sworn on 21 November 2012.  Submissions in reply were filed by the applicant on 22 November 2012.

6. At a directions hearing on 23 November 2012, counsel for the applicant apparently helpfully narrowed the scope of the further discovery sought by reformulating many of the categories of documents.  Further, pursuant to orders made that day, an amended statement of claim was filed on 5 December 2012.  The respondent clarified its position on further discovery by written submissions filed on 7 December 2012, which identified the remaining areas of dispute and requested further and better particulars in relation to certain allegations in the amended statement of claim.  The applicant filed further and better particulars on 17 December 2012 and 21 December 2012.  The respondent sought leave to respond and, on 6 February 2013, filed a further amended defence.

7. Pursuant to further orders, the respondent filed written submissions on 8 February 2013 regarding the outstanding categories of documents, as reformulated at the directions hearing.  The applicant filed reply submissions on 15 February 2013.

8. The applicant has not pressed his application for further discovery in relation to two categories of documents (Categories 13 and 18); and the parties agree that one category (Category 21) has been subsumed into one of the reformulated categories.  The respondent now agrees to provide discovery of nine more categories of documents as reformulated and, possibly, also Categories 12 and 23, although the parties disagree on how these two categories have been reformulated.  Another five categories of documents remain in dispute between the parties.  These disputed categories are:

   ·Category 4

   Details of AFP roles filled in any acting capacity during the period of July 2009 to Oct 2010.

   ·Category 17

   All correspondence from March 2007 to June 2009 by any AFP personnel relating to staffing for the Oil for Food Taskforce.

   ·Category 22

   All documents which relate to the applicant’s reporting obligations to Scott.

   ·Category 10

   Category 10 was narrowed at the directions hearing (and described again in the applicant’s submissions filed on 15 February 2013 at paragraph 6).  Initially, it had comprised:

   All emails, AFP diary entries, day book entries that relate to the Applicant’s Return to Work including competency issues and complaints submitted by the Applicant.

   The respondent summarised reformulated category 10 as:

   10.1Daybook and diary entries for Hay and Scott made during January 2009 dealing with, or related to, the applicant’s Comcare claim.

   10.2Daybook and diary entries for Scott and McDermott made during January 2009, and any emails between Scott and McDermott during January 2009, dealing with, or related to, the applicant’s Comcare claim.

   10.3Daybook and diary entries for Scott and O’Brien made during July 2009, and any emails between Scott and O’Brien during July 2009.

   10.4Daybook and diary entries for Scott for the period December 2008 to October 2010.

   The names Hay, Scott and so on refer to various Australian Federal Police (“AFP”) personnel.  The applicant contended that reformulated category 10 also included “Scott’s … emails that relate to the Applicant of the period of Dec 2008 to Oct 2010”, and any relevant emails sent or received by Hay, McDermott and O’Brien in the specified periods, as opposed to just those between the named individuals and Scott.

   ·Category 11

   Category 11 was also amended at the directions hearing.  Initially, it had comprised:

   [A]ll AFP diaries, day books, emails, letters and files including electronic files and documents THAT RELATE TO THE APPLICANT and entered by Newton, Hunter, Quinn, Richard Britten, Julie Drummond, Sharp, Lane, McDermott, Walker, Melissa Bushby, Warwick Arb[l]aster or any other AFP officers who entered notes or comments in relation to the Applicant’s demotion, ComCare claim, return to work[,] discipline, competency issues, staffing of the oil for food taskforce, formal complaints by or in relation to the Applicant between March 2009 and Oct 2010.

   Again, all names refer to AFP personnel.  The respondent summarised reformulated category 11 as:

   11.1Daybook and diary entries for Hunter, Newton and McTaggart made on 9, 10 and 11 December 2008 and emails sent or received by those persons on those dates.

   11.2Daybook and diary entries for Quinn made on 18 and 19 December 2008 and emails sent or received by Quinn on those dates.

   11.3Daybook and diary entries for Britten made on 18 and 19 December 2008 and emails sent or received by Britten on those dates.

   11.4Daybook and diary entries for Drummond made on 18 and 19 December 2008 and emails sent or received by Drummond on those dates.

   11.5Daybook and diary entries for Sharp and Lane [period unclear] and emails sent or received by those persons [period unclear].

   11.6Daybook and diary entries for Walker and Bushby made during September 2010 to early October 2010 and emails sent or received by those persons during that period.

   11.7Daybook and diary entries for Arblaster made during the period June 2009 to early July 2009 and emails sent or received by Arblaster during that period.

   The applicant’s version of reformulated category 11 specified that what was sought was “the diary entries, day books and related emails that relate to the Applicant” of the named personnel during the specified periods.  He submitted that the period for which Sharp and Lane’s documents were sought was March 2009 and, contrary to the respondent’s understanding of Category 11’s reformulation, the period for which Hunter and Britten’s documents were sought was all of December 2008 and the period for which Drummond’s documents were sought was from December 2008 to October 2010.  The applicant further contended that reformulated Category 11 also comprehended the day book, diary entries and emails of Cato for December 2008, and Champion, Hardy and Flower for October and November 2009.

9. As noted above, the parties disagree on how Categories 12 and 23 have been reformulated.  The respondent agrees to provide discovery of these categories on the basis that it considers that they have been reformulated as follows:

   ·Category 12

   Records relating to the professional reporting standards investigation conducted between October and November 2009.

   ·Category 23

   Daybook and diary entries for Walker made during September 2010 and any file relating to the matters as pleaded in paragraph 58 of the … amended statement of claim.

   The applicant maintains that further discovery of these two categories is still in dispute because they were reformulated more broadly and comprise more documents than the respondent has agreed to provide.  The applicant considers that they were reformulated as:

   ·Category 12

   Records relating to the details of the professional reporting standards investigation conducted in relation to the Applicant, including … the diary entries and day book entries plus any related emails that relate to the Applicant from Champion and Hardy for the period October 2009 and November 2009…

   (Emphasis added.)

   ·Category 23

   [T]he diary entries, daybooks and related email correspondence of both Walker and Bushby in relation to the Applicant’s complaint to the Commonwealth Ombudsman in or about September 2010, together with any other notes and documents relating to such complaint.

   (Emphasis added.)

   THE PARTIES’ SUBMISSIONS

10. The parties agreed that, having regard to r 20.14(1)(a) of the Federal Court Rules 2011 (Cth) (“the Rules”), standard discovery should only be ordered for documents that are directly relevant to the issues raised by the pleadings. Both parties referred to Dennis v Chambers Investment Planners Pty Ltd (2012) 201 FCR 321 (“Dennis”).  The applicant relied on Dennis to support a submission that discovery of a document should facilitate the efficient conduct of the proceeding; whilst the respondent relied on the case to support its submission that the “direct relevance” test is narrower than the traditional “train of inquiry” test derived from the English Court of Appeal in Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55. This much may be accepted. The relevant law is not, however, presently in dispute.

11. The applicant submitted that the categories of documents that he seeks to have discovered are directly relevant to the issues raised in his amended statement of claim and are essential for the just and efficient resolution of the proceeding.  The parts of his amended statement of claim that he says are relevant to the disputed categories of documents are discussed below, in connection with the relevant disputed category.

12. The respondent submitted that the categories of documents that it has not agreed to discover “do not satisfy the requirements of the Rules and ought not be the subject of a further order for discovery”.

    CONSIDERATION

13. Rule 20.11 of the Rules states:

    A party must not apply for an order for discovery unless the making of the order sought will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible.

14. Rule 20.14 relevantly provides:

    (1)If the Court orders a party to give standard discovery, the party must give discovery of documents:

    (a)that are directly relevant to the issues raised by the pleadings or in the affidavits; and

    (b)of which, after a reasonable search, the party is aware; and

    (c)that are, or have been, in the party’s control.

    (2)For paragraph (1)(a), the documents must meet at least one of the following criteria:

    (a)the documents are those on which the party intends to rely;

    (b)       the documents adversely affect the party’s own case;
    (c)       the documents support another party’s case;
    (d)       the documents adversely affect another party’s case.

    …

15. The parties’ inability to agree on how particular categories of documents were reformulated at the 23 November 2012 directions hearing creates the impression that they dispute more than is the case. The scope of each reformulated category in dispute, as determined at the directions hearing, is set out below together with consideration of whether further discovery orders are appropriate for each category. As indicated at the commencement of the reasons, the broad significance of Rule 20.11 has been masked in the flurry of categorization and re-categorization.

    Reformulated Category 12

16. Paragraphs [44]–[45] of the applicant’s amended statement of claim plead:

    44.On 5 October 2009, the Applicant submitted an internal AFP complaint to the Respondent alleging bullying, harassment and failure to comply with the Occupational Health and Safety Act.

    PARTICULARS
    The Applicant complained to Professional Reporting Standards of the Respondent about the treatment he had received in relation to the incidents in December 2008 described in paragraphs 24 to 26 above and also in relation to his return to work arrangements after he was found fit to perform full duties in July 2009.  A copy of this complaint is available for inspection at the Applicant’s solicitor’s office within normal business hours.

    44A.The Respondent’s Reporting Standards Policy and the AFP Act requires the Respondent to investigate the complaint, including interviewing the complainant being the Applicant.  Further the Applicant requested that the Respondent read the Applicant’s ComCare and Rehabilitation files.

    44B.Without performing the required investigations, the Respondent took the advice of Scott, against whom the complaint was made, and improperly failed to investigate the complaint.

    45.On 5 November 2009, the Respondent wrongly dismissed the Applicant’s internal complaint[.]

    PARTICULARS

    The Applicant complained about the treatment he had received in relation to the incidents in December 2008 described in paragraphs 24 to 26 above and in relation to his return to work arrangements as described in paragraphs 34, 36 and 41 and the failure of the Respondent to provide him with meaningful work as described in paragraphs 33, 35, 40 and 42.  A copy of this claim is available for inspection at the Applicant’s solicitor’s office within normal business hours.

17. The respondent has agreed to discover “records relating to the professional reporting standards investigation conducted between October and November 2009”.  The applicant maintains that he also seeks discovery of the diary entries, day books and emails of Ms Champion and Ms Hardy, so far as they relate to him, for October and November 2009.  According to the applicant, Ms Champion and Ms Hardy are members of the AFP’s human resources personnel who were involved in an investigation of the applicant’s complaint, conducted by Superintendent Flower.

18. The applicant has provided no basis for the discovery of Ms Champion’s or Ms Hardy’s records beyond their relevance to the professional reporting standards investigation.  Indeed, at the directions hearing on 23 November 2012, counsel for the applicant conceded that what the applicant sought was “not so much the records necessarily of Champion and Hardy, but … the records relating to the professional reporting standards investigation … conducted between October and November 2009”.  That is how category 12 was reformulated.

19. There is no reason to suppose that any relevant records of Ms Champion and Ms Hardy will not be discovered in the course of the respondent’s discovery of records relating to the professional reporting standards investigation.  Accordingly, since the respondent has agreed to discover such records, there is no need for a further discovery order in relation to reformulated category 12.

    Reformulated Category 23

20. Paragraphs [58]–[58C] of the applicant’s amended statement of claim plead:

    58.On 29 September 2010 the Respondent advised the Applicant that the Respondent was going to instigate an independent investigation though [sic] the Commonwealth Ombudsman regarding the treatment of the Applicant.

    PARTICULARS
    Steven Walker head of Human Resources at the Respondent advised the Applicant in a phone conversation on that date that the investigation was going to occur.

    58A.Applicant did not receive any further communication about his complaint to the Commonwealth Ombudsman and the complaint did not proceed.

    58B.Each of the complaints to Professional Standards and the complaint to the Commonwealth Ombudsman were improperly halted at the instruction of Scott.

    58C.The Respondent failed to proceed with the Commonwealth Ombudman [sic] investigation and failed to properly investigate the Applicant’s complaints to Professional Standards, because the Applicant had defied Scott in December 2008, when the Applicant tried to ensure that the Oil for food taskforce was not improperly wound up.

21. The respondent has agreed to discover the day book and diary entries of Mr Walker, Head of Human Resources at the AFP, made during September 2010 and any AFP file related to the applicant’s complaint to the Commonwealth Ombudsman.  The applicant also seeks any relevant emails sent or received by Mr Walker during that period, as well as the day books and diary entries of Ms Bushby and any relevant emails sent or received by Ms Bushby in that period.  Counsel for the applicant stated that Ms Bushby was an AFP staff member also involved in the alleged halting of the complaint to the Commonwealth Ombudsman.  The respondent considered that the records of Mr Walker and Ms Bushby fell within reformulated subcategory 11.6.

22. At the 23 November 2012 directions hearing, counsel for the applicant agreed that what the applicant sought under category 23 was “the respondent’s file, if any, relating to the proposed investigation to be conducted by the Commonwealth Ombudsman” and “Mr Walker’s diary and day book for the entire period of September 2010”.  This is how category 23 was reformulated.

23. Since the respondent has agreed to discover these documents, there is no need for a further discovery order in relation to reformulated category 23.  The question of whether Mr Walker’s emails and the records of Ms Bushby should be the subject of a further discovery order is discussed further in connection with category 11 (see [57] and following below).

    Category 4

24. Under category 4, the applicant seeks discovery of “[d]etails of AFP roles filled in any acting capacity during the period of July 2009 to Oct 2010”.

1. The applicant asserted that this information was relevant to various paragraphs of his amended statement of claim alleging that he had expressed interest in performing “higher duties” during that period but was not given available duties commensurate with his experience.  For example, paragraphs 39A, 41A, 48A and 54A of the applicant’s amended statement of claim are all in the same terms, as follows:

   At all relevant times the Respondent had available higher duties positions for which the Applicant was eligible.

   Paragraph 50 of the amended statement of claim pleads:

   No other role was ever offered to the Applicant and he continued to perform menial duties as set out in the particulars to paragraph 42 or to have nothing to do.

2. The applicant’s written submissions of 9 November 2012 state:

   Documents provided to date by the Respondent relate to advertised positions.  This is not what is sought.  The operational practice at the AFP during the period July 2009 to October 2010 was that most higher duties positions were filled without being advertised.

3. The respondent has agreed to provide discovery of a spreadsheet “which records all Melbourne office higher duties for the specified period” but maintains that further discovery would be oppressive.

4. The applicant’s written submissions of 22 November 2012 state:

   [P]rior to December 2008, the Applicant regularly performed higher duties overseas as well as in different states in Australia.  Therefore the document which the Respondent provides should record all higher duties positions available and/or offered to all AFP officers based anywhere in Australia for higher duties within Australia and overseas for the specified period.

5. On 17 December 2012, the applicant provided further particulars to paragraphs 39A, 41A, 48A and 54A as follows:

   During the specified period the Respondent had higher duties positions of the rank of BAND 6 or above, anywhere in the world where AFP personnel were deployed in any operational area and for which the Applicant was been eligible [sic].  Further particulars will be provided after discovery.

6. Amongst other things, the respondent submitted that paragraph 39A of its further amended defence undermined the applicant’s claim that category 4 was directly relevant to issues raised by the pleadings.  Paragraph 39A reads as follows:

   39A.It denies the allegations in paragraph 39A and says further that, at all relevant times:

   39A.1   the decision by the respondent to direct employees to perform higher duties assignments was a matter entirely at the discretion of the respondent and no employee, including the applicant, was eligible, in the sense of enjoying an entitlement, to be considered or selected for, a higher duties assignment.

   39A.2   the respondent in selecting employees to perform higher duties assignments, had regard to the matters referred to at paragraphs 8.3 to 8.5 above, and made decisions based on the identification of the most suitable available member.

   39A.3   the applicant’s suitability and fitness to accept a higher duties assignment was qualified and necessarily limited, by:

   39A.3.1the applicant’s insistence, up until at least 4 March 2010, that he would only accept a higher duties assignment at a Coordinator level (band 9) or above;

   39A.3.2the concerns held by senior officers of the respondent that the applicant did not have the ability to perform at a band 9 level or above;

   39A.3.3the applicant’s failure to either apply for, or obtain selection into , the Melbourne Team Leader Development Pool, the Melbourne Coordinator Development Pool or the National Order of Merit for Coordinators; and

   39A.3.4  the applicant’s availability.

   PARTICULARS

   The applicant did not attend work and was therefore not available to perform higher duties for the periods 12 October 2009 to 31 December 2009, 15 March 2010 to 9 April 2010 and 5 July 2010 to 17 September 2010.

   As is evident from the above, the respondent stated in particulars that the applicant did not attend work from 12 October 2009 to 31 December 2009, 15 March 2010 to 9 April 2010 and 5 July 2010 to 17 September 2010 and was consequently not available to perform higher duties in those periods.

7. The applicant countered that no material had been discovered that would support any of these allegations. 

8. On the one hand, it would appear that the applicant’s category is overly broad.  For example, notwithstanding statements like those at p 2 of the applicant’s request and submissions filed on 18 October 2012, it appears to me that details of AFP roles filled “in any acting capacity” between July 2009 and October 2010 lack direct relevance (within the meaning of Rule 20.14).  Nonetheless, given the nature of the applicant’s previous work, it would appear that documents disclosing the availability of unadvertised interstate and overseas higher duties positions for which the applicant could have been eligible at the time he was at work are relevant.  The respondent’s statement that the applicant was never entitled (paragraph 39A.1) to perform higher duties would not seem to answer the applicant’s point. 

9. Accordingly, I conclude that documents disclosing the higher duties posts outside the Melbourne office, for which the applicant could have been eligible in the periods he was at work, are directly relevant to his claims that he was eligible to perform higher duties and was offered none since the applicant had performed similar roles previously. 

10. Ms Schluter did not depose that supplying documents of this kind would be oppressive to the respondent.  Rather, she deposed that it would be oppressive to sort through personnel files to obtain the actual hard copy directions to perform higher duties for all 816 positions offered within the Melbourne office.  This may be accepted.  The applicant does not, however, appear to be seeking this level of detail for any of the relevant offices. 

11. If there are documents, such as spreadsheets like that which the respondent has already made available, disclosing the higher duties posts outside the Melbourne office, for which the applicant could have been eligible in the periods he was at work, then they should be discovered under category 4.  No further discovery under this category would appear appropriate at this stage.

    Category 17

12. Under this category, the applicant seeks discovery of “[a]ll correspondence from March 2007 to June 2009 by any AFP personnel relating to staffing for the Oil for Food Taskforce”.

13. In the amended statement of claim, particularly from paragraphs 20 to 26A, there are allegations that the respondent requested that the applicant, in his capacity as Acting Coordinator of the respondent’s Oil for Food Taskforce, prematurely end the Oil for Food Taskforce.  The applicant claims that he was disciplined when he expressed concerns about understaffing issues and the planned appointment to the taskforce of a person he believed would soon resign from the AFP.  He stated that, subsequent to these events, he took sick leave.  The applicant alleges that the respondent’s behaviour in:

    ·failing to arrange for his firearm clearance upon his return to work (paragraph 39); and

    ·failing to provide him with more than low level duties (paragraphs 40, 42, 50, 55)

    injured him, altered his position to his prejudice and/or discriminated against him in his employment (paragraph 62) in a way amounting to adverse action as defined in s 342(1)(b), (c) and (d) of the Fair Work Act 2009 (Cth) (paragraph 63). The applicant pleads that the respondent took this adverse action for reasons including that the applicant had workplace rights, exercised his workplace rights and/or proposed to exercise his workplace rights (paragraph 64), and/or for reasons including a disability of the applicant (paragraph 66).

14. The applicant submitted that correspondence relating to staffing for the Oil for Food Taskforce was relevant in light of his allegation that it was his stance on staffing issues that led to “unwarranted disciplinary action”.

15. The respondent submitted that category 17 was not relevant to the issues raised in the pleadings and that discovery of category 17 would be oppressive.  It submitted that the phrase “relating to staffing” was unclear and that category 17 appeared to require the respondent to identify any person who was involved in making decisions on staffing for the Oil for Food Taskforce, potentially a broad category of personnel, and to conduct broad email archive and hard copy searches.  Further, the respondent noted that the applicant sought documents created up to 18 months prior to the alleged unwarranted disciplinary action in December 2008.  It submitted that the key issue in the proceeding was why adverse action was taken, and that the circumstances behind the workplace right and/or the circumstances for the purported exercise of a workplace right would not assist in the resolution of the proceeding.

16. Subject to the observation that the circumstances in which the workplace right was purportedly exercised may throw light on the central issues, the respondent’s submissions on category 17 should generally be accepted.  The applicant has not shown why such a broad range of correspondence is sought from such a broad range of personnel over so broad a time period.  The necessary searches would require significant time and effort of the respondent and it is unclear how the documents could do more than provide background to the complaint the applicant claims to have made, and the adverse action he claims occurred as a result of his complaint.

17. Accordingly, I would not order discovery in the terms of category 17.

    Category 22

18. The applicant seeks under category 22 “[a]ll documents which relate to the Applicant’s reporting obligations to Scott”.

19. Although both parties consider that this category remains in dispute, this may be doubted.  At the 23 November 2012 directions hearing, counsel for the applicant accepted that, by reference to category 22, the applicant sought documents disclosing whether or not there had been a formal delegation of authority to Mr Scott to discipline the applicant.  Counsel for the applicant accepted that the applicant was not seeking every document relating to his reporting obligations to Scott.  The respondent now agrees to discover “all documents which relate to Scott’s authority to discipline the applicant while he was performing duties for the [Oil for Food] Taskforce”, which would appear to meet the applicant’s request.  Nevertheless, the applicant maintains in his most recent submissions that he continues to seek discovery of the category as originally formulated.  I deal with the category on this basis.

20. In his amended statement of claim, the applicant relevantly pleads:

    18.In performing his roles in the Oil for Food Taskforce, the Applicant was answerable to Donaldson until October 2008 and thereafter Hunter.  He had no reporting obligations to Scott.

    …

    24.On 19 December 2008, at Scott’s request the Applicant met with Scott and Quinn, at which meeting Scott disciplined the Applicant.

    …

    24A.Scott had no authority to discipline the Applicant as at all times while he was engaged in performing duties for the Oil for Food Taskforce, the Applicant reported to Hunter.

    25.On 19 December 2008, the Applicant advised his staff that he was demoted.  He left the workplace and later commenced sick leave.

    …

    26.Later that day, unbeknownst to the Applicant, Scott sent an email to the Applicant further disciplining him and further demoting him from his Team Leader role.

    Paragraph 26A is in identical terms to paragraph 24A.  Later in the amended statement of claim, at (or in the particulars to) paragraphs 29, 30, 44B, 45, 48, 52 and 57B, the applicant alleges a course of subsequent interference by Scott with the applicant’s complaints, Comcare application and return to work and resumption of duties.

21. In his submissions on further discovery, the applicant repeated his claim that he had no reporting obligations to Scott and that Scott therefore had no right to take any disciplinary action against him on 18 and 19 December 2008.  The applicant maintained that he was “entitled to explore” Scott’s right to discipline him, although counsel for the applicant denied at the directions hearing that category 22 was a “fishing expedition”. 

22. The respondent submitted that category 22 was not directly relevant to the issues raised by the pleadings because whether Scott had a right to take disciplinary action against the applicant is of significance only to the extent that it is part of the circumstances in respect of which a workplace right is said to have existed.

23. The respondent’s submissions should be accepted.  It is difficult to see how the issue of whether or not Scott had authority to discipline the applicant can form more than the background circumstances in respect of which a workplace right was said to have existed and to have been exercised.  Moreover, the respondent has already agreed to provide all relevant documents dealing with Scott’s authority to discipline the applicant, with the result that even if discovery of such documents could be justified, no order is needed in this regard.  Even if category 22 were considered directly relevant to issues in the pleadings (cf paragraph 18 of the amended statement of claim), it is doubtful that discovery of documents beyond those which the respondent has agreed to provide would facilitate the efficient conduct of the proceeding. 

24. There is no occasion for a further discovery order in relation to this reformulated category.

    Reformulated Category 10

25. As noted above at [8], category 10 was narrowed at the 23 November 2012 directions hearing, but the parties disagree on precisely how it was reformulated.  A review of the transcript of the directions hearing shows that the respondent’s list (at [8]) above) is a generally fair summary of the reformulated category, although it seems to me that, bearing in mind the applicant’s apparent position at the hearing, subcategory 10.4 should also include Scott’s emails for the period December 2008 to October 2010, insofar as they relate to the applicant’s Comcare claim or to the respondent’s employment policies mentioned in the amended statement of claim, since counsel for the applicant indicated that these would “possibly” be sought.  In addition, although, strictly speaking, counsel for the applicant did request emails “between” Scott and McDermott, in the context of the rest of the directions hearing and the applicant’s numerous requests for the daybooks, diaries and all relevant emails of specified individuals during specified periods, it may be assumed that the applicant also intended to seek all relevant emails of McDermott for January 2009, not merely those exchanged with Scott.  The request for “O’Brien and Scott’s … email correspondence” should also be interpreted in this light, and the applicant can be taken in context to have sought Hay’s emails even though these were not expressly mentioned.

26. Reformulated category 10 as sought by the applicant can accordingly be summarised as follows:

    10.1Hay’s and Scott’s emails and daybook and diary entries of January 2009, dealing with, or related to, the applicant’s Comcare claim.

    10.2Scott’s and McDermott’s emails and daybook and diary entries of January 2009, dealing with, or related to, the applicant’s Comcare claim.

    10.3Scott and O’Brien’s emails and daybook and diary entries of July 2009.

    10.4Scott’s emails and daybook and diary entries for the period December 2008 to October 2010.

27. The respondent agrees to provide discovery of reformulated categories 10.1 and 10.2 as it understood them. As a consequence of the matters set out at [49] above, its precise position on the individuals’ emails is unclear; and I return to these emails below. The respondent agrees to discover reformulated subcategory 10.3 on the condition that it is restricted to documents that relate to paragraph 41 of the amended statement of claim. The respondent further agrees to discover Scott’s daybook and diary entries for 18 and 19 December 2008 relating to matters in paragraphs 23, 24, 25 and 26 of the amended statement of claim, and those from January 2009 to September 2010 that relate to matters raised by paragraph 52 of the amended statement of claim. The respondent does not agree to discover the balance of subcategory 10.4 and maintains that the further particulars provided by the applicant do not assist in establishing the relevance of this reformulated category. The respondent submits that full discovery of category 10 would be oppressive. The applicant claims that the documents are relevant because they “are likely to disclose the real reason as to why he was never returned to his former level of duties” and submits that electronic searches should not be onerous for the respondent.

28. In paragraphs 29, 30, 40, 41, 42, 52, 56, 56A and 59 of his amended statement of claim (being the paragraphs on which the applicant relies in connection with category 10) the applicant pleads:

    29.In January 2009 the Applicant made a workers compensation claim, but the Respondent improperly refused to place the Applicant on a return to work program.

    PARTICULARS
    The Applicant submitted a ComCare claim to the Respondent seeking workers compensation benefits pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth). Hay subsequently advised the Applicant that Scott had instructed her to not place the Applicant on a return to work program, to not visit the Applicant and if the Applicant made a ComCare claim, he (the Applicant) would be “on his own”. A copy of this ComCare claim is available at the Applicant’s solicitor’s office within normal business hours.

    30.In January 2009, while the Applicant was on leave, the Respondent tried to improperly induce the Applicant to not make or to withdraw his ComCare claim.

    PARTICULARS
    Scott advised McDermott as the Applicant’s union representative, of Scott’s belief that the Applicant was not really sick and if the Applicant filed a ComCare claim the Applicant would be “on his own”.  Several days later Scott informed McDermott that the Applicant could have the Oil for Food Taskforce Team Leader position if he returned to work.  Several days later Scott informed McDermott that this offer was withdrawn because the Oil for Food Taskforce was being wound down.

    …

    40.From early July 2009, when the Applicant had a full medical and firearms clearance, the Applicant was given no better duties than the low level of duties he had been performing since March 2009.

    …

    41.On 22 July 2009, the Applicant met with Scott and O’Brien to request higher duties.

    PARTICULARS
    At that meeting, the Applicant stated that he was fully fit and ready, willing and able to perform higher duties with greater responsibilities and asked what Scott’s plans were for him.  Scott stated that he had “not given it much thought”.  Scott then stated “You never know what’s around the corner”.
    …

    42.After that meeting, and for the period from July 2009 until October 2010, the Applicant was given no higher duties or duties commensurate with the Applicant’s experience.

    PARTICULARS
    The Applicant continued to perform very menial duties such as answering the phone, preparing witness statements, finding witnesses, corresponding with external organisations to locate persons of interest, serving subpoenas on witnesses, scanning documents, executing search warrants on non-confrontational targets.  Such duties were usually asked of a junior officer at band 3 or 4.  The Applicant sat at his desk for approximately 16 hours each week with no duties to perform.
    …

    52.Until September 2010, the Respondent through Scott had strongly and wrongly opposed the Applicant’s ComCare application.

    PARTICULARS
    In the documentation provided by Scott to ComCare prior to September 2010, Scott had deliberately misrepresented the incidents which occurred on 18 and 19 December 2008 to try to support the Respondent’s case.  Particularly he claimed that reporting about Sing’s proposed resignation was a breach of privacy.  This was incorrect as all relevant officers had been informed by Sing that he was resigning from the AFP.  Copies of this documentation is [sic] available for inspection at the Applicant’s solicitor’s office during normal business hours.

    …

    56.At no time after early July 2009, when the Applicant returned to work on unrestricted duties and with a full firearms clearance, did the Respondent follow its own internal policies.

    PARTICULARS
    The Respondent’s employment policies included the following policies: “Your responsibilities as manager” policy, “Developing your people” policy and “Managing and Resolving Workplace Disputes” policy.

    56A.The Respondent failed to follow these policies in failing to redeploy the Applicant at his pre-injury workplace duty level and responsibility and in failing to provide work for the Applicant commensurate with his experience.  The Respondent required the Applicant to attend the workplace for approximately 15 months, with very little, if any duties, to perform.  On 21 September 2010 the Applicant submitted a further internal complaint to the Professional Reporting Standards of the Respondent.

    PARTICULARS
    The Applicant complained about the fact that the Respondent’s response to the Australian Human Rights Commission complaint contained misrepresentations of the facts.  A copy of this complaint is available for inspection at the Applicant’s solicitor’s office within normal business hours.

    …

    59.On 10 October 2010, the Applicant was forced to resign from the Respondent because he would never be allowed to perform meaningful duties of the type that he had performed prior to 18 December 2008.

    PARTICULARS
    The Respondent’s failure to provide any meaningful work to the Applicant since July 2009, despite numerous requests, persuaded he Applicant that the Respondent would never provide any such meaningful work to the Applicant again.  The Respondent’s failure to offer any higher duties to the Applicant since July 2009, despite his considerable experience as a serving AFP officer, plus the commendations received while performing his duties plus numerous requests to be considered for higher duties forced the applicant to reasonably believe he had no further career prospects with the Respondent.

    I note that Hay and Scott are mentioned in the particulars to paragraph 29.  Scott and McDermott are mentioned in the particulars to paragraph 30.

1. Category 10.3 documents should be understood as limited to documents relevant to paragraph 41 of the amended statement of claim.  O’Brien is mentioned only in this paragraph. 

2. More broadly, there is the question of Scott’s emails.  The applicant’s allegations involving Scott extend beyond the disciplinary action (paragraphs 23 to 26) and opposition to his Comcare application (paragraph 52), since the applicant alleges ongoing interference by Scott in the applicant’s return to normal duties (paragraphs 29, 30, 44B, 45, 48, 52 and 57B).  Scott’s emails for the entirety of the relevant period insofar as they relate to the applicant’s return to work are therefore directly relevant.

3. The respondent has submitted that it would be oppressive to require identification of relevant personnel and conduct broad searches that would generate thousands of documents.  I agree.  The reformulated category would not require this because it specifically identifies individuals, saving the need for the respondent to identify other personnel.  The respondent raised the difficulty of potentially illegible diary entries and referred to the possible need to meet with former employees or those deployed elsewhere to decipher their handwriting.  The extent of this problem is, however, not yet known.  It is conceivable that consultation with the applicant about the scope of the task and its likely cost will permit the parties to limit the deciphering task consensually.  The respondent may apply to the court for orders that costs of this kind be shared in some way.  It is, however, premature to consider how the burden should be shared because its weight is not yet known.  In any event, the identification of specific individuals and the reference to subject matter and dates that has occurred ought considerably to reduce the search task and the illegibility difficulty. 

4. Discovery should therefore extend to such category 10.3 documents as are relevant to paragraph 41 of the amended statement of claim.  So far as category 10.4 documents are concerned, discovery ought to be made of Scott’s emails and daybook and diary entries for the period December 2008 to October 2010 to the extent that they relate to paragraphs 23 to 26 (disciplinary action), paragraph 52 (Comcare claim) and paragraphs 29, 30, 44B, 45, 48, 52 and 57B (Scott’s involvement in the applicant’s return to normal duties). 

   Reformulated Category 11

5. As noted at [8] above, Category 11 was also reformulated at the 23 November 2012 directions hearing, although the parties disagree on its new parameters.

6. The respondent’s summary (at [8] above) fairly describes the way that counsel for the applicant reformulated category 11 at the directions hearing. The respondent agrees to discover documents falling within this understanding of reformulated category 11, on the condition that it need only discover documents relating to paragraphs 20, 21, 24, 32, 38, 39 and 58 of the amended statement of claim. The relevant period for the records of Sharp and Lane would appear to be March 2009 as the applicant submits; and the respondent agrees to discover these documents for the same period. Counsel for the applicant narrowed the documents sought from Hunter, Britten and Drummond to daybook and diary entries and emails from 9 to 11 December 2008 in Hunter’s case; and from 18 to 19 December 2008 in the case of Britten and Drummond. No request for Cato’s documents was raised at the directions hearing or prior to the applicant’s reply submissions of 15 February 2013. I doubt that Cato’s documents would be relevant in the accepted sense and I would not order discovery of them.

7. To the extent that the applicant sought as part of Category 11 documents from Hardy, Champion and Flower relating to the professional reporting standards investigation, those documents have already been dealt with as part of Category 12.  It is also worth noting that the respondent treated Walker and Bushby’s daybook and diary entries and emails from September to early October 2010 as part of category 11, while the applicant treated them as part of category 23.  Nothing turns on this and, in any event, the respondent has agreed to discover them to the extent that they relate to the complaint to the Commonwealth Ombudsman mentioned in paragraph 58 of the amended statement of claim.

8. This leaves no area of reformulated category 11 in dispute.  As the respondent has agreed to discover this category on the condition that the documents relate to the paragraphs referred to by counsel for the applicant at the directions hearing, no discovery order is necessary for this category.

   DISPOSITION

9. For the reasons stated, I would order that there be further discovery under category 4 in accordance with paragraph [35] of these reasons and under category 10, in accordance with paragraph [56].  I would make orders accordingly. 

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny J.

Associate:

Dated:        19 April 2013