Gallagher v BHP Billiton Nickel West Pty Ltd
[2016] FCCA 3367
•22 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GALLAGHER v BHP BILLITON NICKEL WEST PTY LTD & ANOR | [2016] FCCA 3367 |
| Catchwords: PRACTICE AND PROCEDURE – Application for leave to amend application – where application made late – where previous election to reserve rights – whether matters pleaded relate to same legal and factual matrix – case management considerations. PRACTICE AND PROCEDURE – Application for discovery – consideration of relevant factors – where application made late – case management considerations. |
| Legislation: Fair Work Act 2009 (Cth), ss.65, 119, 120(1), 351, 570(2) Federal Circuit Court of Australia Act 1999 (Cth), ss.3, 14, 42, 45 Federal Circuit Court Rules 2001 (Cth), rr.1.03, 7.01, 14.02, 21.02 Federal Magistrates Act 1999 (Cth) |
| Cases cited: Abrahams v Qantas Airways Ltd (No.2) [2007] FMCA 639; (2007) 210 FLR 314 Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd (ACN 002 792 163) & Ors v Woolworths Ltd (ACN 000 014 675) [2015] FCA 1520 Cai v Tiy Loy & Co Ltd (No.2) [2015] FCCA 2924 |
| Applicant: | ALANA FAYE GALLAGHER |
| First Respondent: | BHP BILLITON NICKEL WEST PTY LTD |
| Second Respondent: | AARON GLEESON |
| File Number: | PEG 280 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 22 November 2016 |
| Date of Last Submission: | 22 November 2016 |
| Delivered at: | Perth |
| Delivered on: | 22 December 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms R R Joseph |
| Solicitors for the Applicant: | MDC Legal |
| Counsel for the Respondents: | Mr R Wade |
| Solicitors for the Respondents: | Ashurst Australia |
ORDERS
That the applicant’s application in a case filed 11 November 2016 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 280 of 2015
| ALANA FAYE GALLAGHER |
Applicant
And
| BHP BILLITON NICKEL WEST PTY LTD |
First Respondent
| AARON GLEESON |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The substantive application in these proceedings alleges a contravention of the general protections provisions of the Fair Work Act 2009 (Cth) (“FW Act”), and in relation thereto there is an application in a case filed 11 November 2016 before the Court for:
a)leave to be granted to the applicant, Alana Faye Gallagher (“Ms Gallagher”), to serve an amended Form 4 Application (the form of which is an annexure to an affidavit of Noella Silby sworn 11 November 2016 (“Ms Silby’s Affidavit”)); and
b)an order under r.14.02 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) that the respondents, BHP Billiton Nickel West Pty Ltd (“Nickel West”) and Mr Aaron Gleeson (“Mr Gleeson”) provide discovery in relation to particular categories of documents.
The application in a case is opposed by Nickel West and Mr Gleeson.
The proposed amendments
The Proposed Amendments are in the detailed pleading annexed to the application in a case, and are as follows:
a)in [1] to add a claim of adverse action because of an exercise of workplace rights when Ms Gallagher “became entitled to request a flexible work arrangement under s.65 of the FW Act”;
b)in [2] to add to the claim of injury in her employment and discrimination against her, the reason of “family or carer’s responsibilities”;
c)in [14] to add that Mr Gleeson had full personal knowledge of “the existence of and exercise” of Ms Gallagher’s workplace rights and Protected Attributes (they being matters under s.351 of the FW Act);
d)in [52] to amend as follows:
The Applicant’s Employment Agreement provided for a redundancy entitlement (as pleaded at 18(e) above), Nickel West breached the Employment Agreement when it failed to pay the applicant her contractual redundancy entitlement after making the Leinster Role redundant and not offering her suitable alternative employment. The Kwinana Role was not suitable alternative employment for the reasons pleaded above at paragraphs 49 to 51. The applicant pursues a claim against Nickel West for unpaid redundancy entitlements and breaches of her Employment Agreement.
e)in [91] to amend for loss to include a sum in relation to Ms Gallagher’s return to work bonus (following parental leave) and superannuation contributions (arising from a lower rate of pay in the role to which she has returned following parental leave);
f)a new [92] alleging that Ms Gallagher has been denied a contractual entitlement to redundancy pay, alternatively a statutory entitlement to redundancy pay under s.119 of the FW Act, by reason of Nickel West failing to obtain suitable alternative employment for Ms Gallagher; and
g)at [97(d)] to add a plea for an order for payment of Ms Gallagher contractual redundancy payment or statutory entitlement to redundancy payment under s.119 of the FW Act.
The broad background to the application for leave to amend the application is as follows:
a)on 29 June 2015, Ms Gallagher filed a Form 4 Claim under the Fair Work Act 2009 (Cth) (“FW Act”) Alleging Contravention of a General Protection (“Application”);
b)on 9 March 2016, Ms Gallagher filed an amended Application (“Amended Application”). By this time, a lawyer at Ms Gallagher’s solicitors, Ms Silby, had assumed conduct of the matter under the supervision of Ms Barsby. The amendments were made with the consent of Nickel West and Mr Gleeson;
c)in early September 2016, the drafting of Ms Gallagher's submissions commenced, under Ms Barsby’s supervision. After Ms Barsby went on maternity leave, Ms Joseph of Counsel assisted with the preparation of the submissions;
d)the submissions were drafted to address each of the grounds of adverse action that Nickel West and Mr Gleeson allegedly took against Ms Gallagher. One of the grounds of adverse action alleged is that, because of her exercise of workplace rights, Nickel West and Mr Gleeson appointed Ms Gallagher to a role that was not acceptable alternative employment (referred to in the Amended Application as the "Kwinana Role") and denied Ms Gallagher her contractual entitlement to a redundancy payment (“Adverse Action Claim”) at [86];
e)the Amended Application does not plead that:
i)the failure to pay Ms Gallagher her contractual redundancy entitlement, in circumstances where the Kwinana Role is not acceptable alternative employment, constitutes a breach of contract; or
ii)in the alternative, Ms Gallagher has a statutory entitlement to redundancy pay under s.119 of the Fair Work Act 2009 (Cth) (“FW Act”),
(together, the “Redundancy Claim”); and
f)the extent to which the factual basis of the Adverse Action Claim and the Redundancy Claim overlapped was said by Ms Gallagher, and more particularly those acting for her, to have become clear in the course of preparing the submissions. Following discussions with Counsel, Ms Gallagher’s solicitors formed the view that:
i)the Redundancy Claim arises out of the same, or substantially the same, facts as those already pleaded to support the Adverse Action Claim;
ii)the Court was already being asked to adjudicate upon the facts that form the basis of the Redundancy Claim in these proceedings;
iii)for those reasons, the parties could rely upon the evidence already filed in respect of the Adverse Action Claim for the purposes of the Redundancy Claim; and
iv)having the Redundancy Claim dealt with in these proceedings would obviate the need for separate proceedings to be commenced in that regard; and
g)on or about 19 October 2016, Ms Gallagher gave instructions to her solicitors to seek to amend the Amended Application to include the Redundancy Claim (“Proposed Amendments”) so that it could be determined as part of the current proceedings, which are listed for hearing from 6 to 8 February 2017 (and have been so listed since 4 March 2016).
In relation to the Proposed Amendments, and conferral, and any prejudice arising from the grant or denial of leave to amend, Ms Silby’s Affidavit indicates that:
a)Ms Gallagher’s solicitors commenced conferral with the solicitors for Nickel West and Mr Gleeson regarding the Proposed Amendments as soon as practicable after forming the view, and receiving the instructions, referred to above;
b)based on what they considered to be the limited nature of the Proposed Amendments, and the factual overlap between the Adverse Action Claim and the Redundancy Claim, Ms Gallagher’s solicitors believed that:
i)there would be minimal costs associated with the Proposed Amendments; and
ii)assuming that Nickel West and Mr Gleeson had properly engaged with all of the issues in dispute on the Amended Application, there would be only minor (if any) prejudice flowing from the Proposed Amendments;
c)Ms Gallagher’s solicitor’s belief referred to above is said to be supported by their understanding that the existence of Ms Gallagher’s employment agreement with Nickel West is not in dispute, and the issue of whether the Kwinana Role is suitable alternative employment has been addressed by Nickel West and Mr Gleeson in their Amended Response filed on 30 March 2016 (at [55] and [86]) and in their affidavit evidence (particularly the affidavit of Phil David Beekhuizen sworn on 29 July 2016 at [32]-[35]);
d)if Ms Gallagher is not given leave to make the Proposed Amendments she will incur significant, unnecessary costs associated with commencing new proceedings that would involve adjudicating on the same facts that are the subject of these proceedings. The multiplicity of proceedings would also create an unnecessary burden on the resources of the Court; and
e)Ms Gallagher’s solicitors say they did not realise the extent to which the factual basis for the Redundancy Claim was already being established as part of the Adverse Action Claim until on or about late September or early October 2016, which was when submissions were being prepared and a detailed review of the pleadings and the evidence was being undertaken.
Consideration of the Proposed Amendments
Ms Gallagher relies upon the Court’s power contained in r.7.01 of the FCC Rules to grant leave to file and serve an Amended Form 4 Application.
In Cai v Tiy Loy & Co Ltd (No. 2) [2015] FCCA 2924 at [27] per Manousaridis J (“Cai”) (citing Medich v Bentley-Smythe Pty Ltd [2010] FCA 494 at [8] per Stone J (“Medich”)) the Court stated that, when r.7.01 of the FCC Rules is applied to applications to amend pleadings, the general principle is that:
… leave to amend should be granted unless the proposed amendment is obviously futile or would cause substantial prejudice or injustice which could not be compensated for. These considerations require the court to take account of the nature of the proposed amendment, whether it is made in good faith, the stage in the proceedings at which leave is sought, the nature of the prejudice that may be caused and the means by which such prejudice might be redressed. The question of delay is relevant to these considerations however it is not the purpose of the court to punish a party for delay in seeking an amendment.
Any procedural application must be considered in the relevant statutory, factual and case management context. The role and mode of operation of this Court as set out in the FCCA Act and the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”), and as prescribed by the objects in ss.3 and 42 of the FCCA Act, and the objects in r.1.03 of the FCC Rules, provide for the Court to operate in a manner:
a)as informal as possible in the exercise of judicial power;
b)which is not protracted in its proceedings;
c)which resolves proceedings justly, efficiently and economically;
d)which uses streamlined procedures; and
e)that avoids undue delay, expense and technicality.
Goodall v Nationwide News Pty Ltd [2007] FMCA 218 at [21] per Lucev FM, followed in The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No. 3) [2013] FMCA 165 at [30]-[31] per O’Sullivan FM.
The Court must also take into account the following principles when determining whether or not to grant leave to allow an amendment:
a)that the paramount consideration remains the doing of justice between the parties, but that a just resolution must have regard to any relevant legislative purpose or object;
b)modern principles of case management;
c)the avoidance of undue delay; and
d)the wastage of public resources.
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 at [30] per French CJ and [97]-[103] per Gummow, Hayne, Crennan, Kiefel and Bell JJ (“Aon Risk Services”); Fair Work Ombudsman v Kentwood Industries Pty Ltd [2010] FCA 98 at [2] per McKerracher J.
From a case management perspective, in Aon Risk Services at [5] per French CJ it was observed as follows:
[5] In the proper exercise of the primary judge's discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource.
Cai does indicate that the question of delay is relevant, but not for the purposes of punishing a party for delay in seeking an amendment. Cai further indicates that it nevertheless remains the case that the stage in the proceedings where leave is sought and delay which causes unfair prejudice in unnecessarily delaying proceedings, no matter what costs are awarded, are matters to be taken into account. The costs consideration has even more force here where s.570 of the FW Act proscribes costs being awarded, except in limited prescribed circumstances: Construction, Forestry, Mining and Energy Union v Clarke [2008] FCAFC 143; (2008) 170 FCR 574; (2008) 176 IR 245 at [28] per Tamberlin, Gyles and Gilmour JJ. Further, it is plain that modern principles of case management and the wastage of public resources are important elements of any consideration as to whether or not to allow an amendment: Aon Risk Services at [30] per French CJ and [97]-[103] per Gummow, Hayne, Crennan, Kiefel and Bell JJ.
Having regard to the various criteria set out above there are a number of reasons why the application for leave to amend ought to be dismissed.
In the first instance, the Proposed Amendments are raised very late. By the time of the hearing of the application in a case on 11 November 2016 there were less than three months before the hearing of the substantive application, the hearing of which had then been listed for more than seven months. The lateness of the Proposed Amendments also comes against the background of the Application having already being amended once, giving rise to the Amended Application. Whilst it would appear, from the evidence in Ms Silby’s Affidavit, that the Proposed Amendments arise from more detailed consideration now given to the Amended Application by Ms Silby and by Counsel, Ms Joseph, it remains the case that this is an Application which has been on foot for a considerable period of time, and in relation to which Ms Gallagher’s solicitors have already turned their mind to appropriate amendments giving rise to the Amended Application, and against that background the Proposed Amendments arise very late in the proceedings.
The lateness of the Proposed Amendments also comes against the background which clearly indicates that Ms Gallagher (or at least Ms Gallagher’s solicitors) were aware of the possibility of making a claim with respect to her redundancy entitlements, and indeed reserved their right to do so, both before the Fair Work Commission and in Ms Gallagher’s Application and Amended Application: see [4], [52] and [97].
Ms Gallagher has thus elected, so far, to pursue a general protections application not involving dismissal (that is, not involving redundancy), but otherwise reserving her rights, including her rights insofar as they are now alleged in the Proposed Amendments. Against the background of the reservation of rights it cannot be said that Ms Gallagher has not considered, previously, and seemingly as early as 9 June 2015 when the Fair Work Commission application was made, what her rights were, and whether or not she had a claim as now set out in the Proposed Amendments. The mere reservation of those rights clearly indicates that Ms Gallagher considered that it was possible that she had claims of the type now made in the Proposed Amendments. Given the litigation history outlined above, to leave the making of those Proposed Amendments to an application in a case made less than three months prior to a three day hearing of the substantive application is unsatisfactory. It is unsatisfactory per se, but also in the context of case management issues which the Court refers to below.
The supposed explanation for the appearance of the reservation of rights in the Application and Amended Application is that the matters were not given active consideration by Ms Gallagher’s solicitors, and that the reservation of rights in the Application and Amended Application were done “as a result of copying and pasting the FWC application”: Barsby Affidavit at [19]. That assertion does not pass muster. It is evident that whoever drafted the Application and Amended Application turned their mind to the fact of and timing of claims which might be made in this Court and the nature of this Court’s jurisdiction, and the specific claims which are now made in the Proposed Amendments. There is no proper explanation as to why it is, rather than making those claims at the time that the Application and Amended Application were filed, those rights were simply reserved. That is particularly so where those rights had also been earlier reserved in the FWC application made on 9 June 2015: Barsby Affidavit, Annexure NJB-1. The failure of Ms Gallagher, or Ms Gallagher’s solicitors, to properly consider, or earlier include, the claims now made in the Proposed Amendments, do not weigh in favour of the grant of the Proposed Amendments.
Although it might be argued that the nature and importance of the Proposed Amendments to Ms Gallagher is such that that is factor which weighs in favour of the grant of leave to make the Proposed Amendments, the failure to seek to make the Proposed Amendments earlier (and particularly against the litigation history and background outlined above) is such that it makes that failure all the more remarkable, and all the more prejudicial to Nickel West and Mr Gleeson.
Ms Gallagher essentially submits that the Proposed Amendments rely upon the same factual matrix as the present Amended Application. In the Court’s view, that is not so, and if leave were granted to make the Proposed Amendments it would be necessary to grant to Nickel West and Mr Gleeson leave to amend (or further amend) their Response. There are several reasons why a different legal and factual matrix arises from the Proposed Amendments, including the following:
a)Ms Gallagher has nowhere pleaded that she was dismissed from employment, and in the context of an application for redundancy that is a matter to which pleadings would need to be directed and responded to. If it can be inferred that a dismissal has been pleaded by Ms Gallagher, it is still a matter to which Nickel West and Mr Gleeson need to properly plead;
b)the Court does not accept that the evidence of Mr Beekhuizen, or any of the other evidence led by Nickel West and Mr Gleeson, is directed toward the relevant issues which might arise in the context of the Proposed Amendments, namely whether there was a redundancy, and whether there was “acceptable alternative employment” or “suitable alternative employment” for Ms Gallagher in a redundancy context, and to the extent that Mr Beekhuizen’s evidence addresses these issues it does not do so in the context of a dismissal giving rise to a redundancy, or redundancy per se, in respect of which different legal and factual issues arise, which must be pleaded; and
c)the Court does not accept that the phrases “acceptable alternative employment” and “suitable alternative employment” are, as suggested by Ms Gallagher, interchangeable. In Australian Commercial Catering Pty Ltd v Fair Work Commission & Ors [2015] FCAFC 189; (2015) 235 FCR 441 (“Australian Commercial Catering”) the Full Court of the Federal Court was dealing with redundancy pay under the National Employment Standards and whether there was “other acceptable employment for the employee” for the purposes of s.120(1)(b)(i) of the FW Act. The Full Court of the Federal Court dealt with a decision of the Full Bench of the then Australian Industrial Relations Commission dealing with the words “acceptable alternative employment” in Clothing and Allied Trades Union of Australia v Hot Tuna Pty Ltd (1988) 27 IR 226, relied upon by Ms Gallagher in relation to the meaning of acceptable alternative employment for the proposition that that phrase requires that the question of whether particular employment for an employee is acceptable is to be determined according to objective standards: Australian Commercial Catering at [48] per Tracey, Barker and Katzmann JJ. The difficulty with the proposition put forward by Ms Gallagher is that the Full Court of the Federal Court in Australian Commercial Catering found that “Hot Tuna does not in fact state that the test is an objective one”: Australian Commercial Catering at [49] per Tracey, Barker and Katzmann JJ (and see also at [50]). The Court dealt with a number of different factors (set out below) as to whether alternative employment might be acceptable, but went on to recognise that what might be acceptable employment for one employee will not necessarily be acceptable employment for another: Australian Commercial Catering at [52]-[54] per Tracey, Barker and Katzmann JJ. As to what constitutes suitable alternative employment the Full Court of the Federal Court in Dibb v Commissioner of Taxation [2004] FCAFC 126; (2004) 136 FCR 388; (2004) 55 ATR 786; (2004) 207 ALR 151 (“Dibb”) in dealing with a termination payment made on the basis of redundancy for income tax purposes in dealing with what constitutes a bona fide redundancy said that:
It is only if the employer considers that there is no available job for which the employee is suited, and that he or she must therefore be dismissed, that the question of redundancy arises.
Dibb at [43] per Spender, Dowsett and Allsop JJ (emphasis added). The Full Court of the Federal Court went on to observe in Dibb at [43] that they had used the word “suitable” as meaning “within the employee’s capacity”. Thus it is certainly open to argue that the phrase “suitable alternative employment” is to be determined on the basis of the employee’s capacity, rather than the long list of factors contributing to whether or not there is acceptable alternative employment as set out in Australian Commercial Catering at [52] per Tracey, Barker and Katzmann JJ as follows:
• whether the work is of a like nature;
• whether the location of the employment being offered is “not unreasonably distant”;
• whether the pay arrangements comply with award requirements;
• the hours of work;
• seniority;
• fringe benefits;
• workload and speed; and
• job security.
For that reason even if Nickel West has addressed the issue of acceptable alternative employment, it has not been given the opportunity to address, either in a factual or legal sense, and plead to, the issue of whether there was suitable alternative employment available for Ms Gallagher.
The only reason that these issues now arise is because Ms Gallagher elected not to raise them at the time of filing the Application and the Amended Application, in circumstances where on the basis of the earlier FWC application, and the Application and Amended Applications themselves, the issue was clearly a live one.
Because Nickel West and Mr Gleeson have not been given the opportunity to deal with the factual and legal issues arising from the amendments to the Proposed Amendments, fairness dictates that they be given that opportunity, and given that the hearing of the matter is now a little over six weeks away (and that includes the usual downtime over Christmas and the New Year break) it is simply impracticable for those matters to be pleaded to, and such further affidavit evidence as may be required, to be put in within that period of time. The consequence of granting leave to amend the Proposed Amendments would therefore be to have the three-day hearing in February 2017 (which had been so listed in March 2016) adjourned. Given the current state of the lists in the Perth Registry it would have to be adjourned until at least July 2018. Further, adjourning a three-day hearing at such short notice means that there is a wastage of public resources, and at least one, and possibly up to three, other cases which might have been listed into those three days have been denied an opportunity to have a hearing earlier than would otherwise be the case.
Ms Gallagher relied upon the provisions of s.14 of the FCCA Act as prescribing that the redundancy claim now raised should be heard and finally determined as part of the one proceeding so as to avoid a multiplicity of proceedings by having to have Ms Gallagher make a separate redundancy claim. Ordinarily, there would be some force in that argument. Section 14 of the FCCA Act is designed so far as is possible to avoid multiplicity of claims, and to allow for all matters in dispute to be resolved completely and finally. It is not however a provision which is designed to assist the dilatory, and cause, as it would here, significant delay in the hearing of a matter. The use of the words “properly brought forward” in s.14 of the FCCA Act means that a claim which is not properly brought forward, as is the case here by reason of both the delay and the election previously made by Ms Gallagher, need not be part of a single final determination which avoids a multiplicity of proceedings. In these circumstances, reliance on s.14 of the FCCA Act does not assist Ms Gallagher.
In circumstances where:
a)Ms Gallagher has had ample opportunity to properly identify the issues now sought to be raised, and has elected not to raise them, she must live with the consequences of that choice: Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu (A Firm) [2015] FCA 1098 at [90] and [127] per Gleeson J;
b)the extent of the delay if the Proposed Amendments were to be given leave is considerable, and additional costs would doubtless be incurred by Nickel West and Mr Gleeson with the associated prejudice arising from the cost and the delay;
c)the explanation for the delay is, for reasons set out above, in any event deficient in the Court’s view, as it blithely ignores the election made by Ms Gallagher not to plead the case now raised by the Proposed Amendments at an earlier stage; and
d)the detriment to other litigants who would have been denied an earlier hearing if the present hearing in this matter were to be adjourned,
the Court considers that no proper case has been made out for leave to be granted for the Proposed Amendments to be made. In any event, all of the above factors, and in particular the choices made by Ms Gallagher by way of the election, and the extent of the delay if the February 2017 hearing were to be adjourned, outweigh the nature and importance of the amendment to Ms Gallagher. As indicated above, the nature and importance of the amendment to Ms Gallagher is much diminished by the elections made at the time of the filing of the Application and Amended Application to reserve rights in respect of the issues now raised by the Proposed Amendments, rather than pleading them at those earlier stages.
For all of the above reasons, leave will not be granted by the Court to make the Proposed Amendments.
Application for discovery of particular categories of documents
Documents sought in the application in a case
The documents sought by Ms Gallagher are set out by category and description of documents in Annexure NS-2 to Ms Silby’s Affidavit as follows:
| Category and Description of Documents | Relevance |
| 1. Documents relating to "justification and assessment work that was done on reducing to one ERC role" during the 2014 Restructure (referred to in the email from Mr Gleeson to Mr Leiner at AG-38 to the Gleeson Affidavit; see also paragraphs 166 - 168 of the Gleeson Affidavit and paragraph 22 of the Leiner Affidavit} and the decision not to proceed with that aspect of the 2014 Restructure | The applicant claims that the circumstances of the 2014 Restructure and the circumstances of the 2015 Restructure are materially similar. This contention forms part of the applicant's claim that adverse action was taken against her, in 2015 after her pregnancy, in contravention of the Fair Work Act. The applicant was not aware, and could not have been aware, that there was "justification and assessment work" done as part of the 2014 Restructure. The applicant was only aware of such work after reviewing AG-38 of the Gleeson Affidavit and relevant parts of the Leiner Affidavit. Similarly, the applicant would not have been aware of the alleged contextual differences between the 2014 and 2015 Restructures deposed to in the respondents' affidavits. |
| 2. Documents relating to the proposed and actual restructure of HSE Services for Leinster, Cliffs and Mt Keith (which commenced in or around November 2014) including, but not limited to: | The respondents have deposed to Nickel West only taking (in the majority of circumstances) a "location based" approach to redundancies (see, for example, Bradshaw Affidavit at {12], [29]; Beekhuizen Affidavit at (26]; Gleeson Affidavit, AG-42). |
| 3. Documents relating to identification of an alternative role and the applicant's selection for the ESSC position at Kwinana | Under the heading in the Application of ''Temporal nexus: exercise of Workplace Rights & Adverse Action", the applicant has clearly pleaded that "as a result of the exercise of her workplace rights outlined above, the Respondents have taken adverse action against her by appointing her to the Kwinana Role, a role that the applicant disputes is acceptable alternative employment, in an attempt to defeat her entitlement to redundancy pay under the FW Act in contravention of s 340(1)(b)” (see [86] of the Amended Application). |
| 4. Documents for the period between March 2014 - March 2015 regarding the applicant or her role, including any documents or correspondence exchanged between Mr Gleeson and: any member of the HR team; Christopher Leiner; and James Sullivan. | Documents such as emails and notes of telephone conversations between Mr Gleeson and Mr Leiner, James Sullivan, or HR personnel regarding Mr Gleeson's interactions with the applicant are relevant in circumstances where: (a) In response to the applicant's claim that Mr Gleeson micromanaged her, Mr Gleeson asserts that his management style in respect of the applicant was necessary because of the level, and frequency, of detail that he was required to provide to Mr Leiner about the applicant's utilisation. Accordingly, the existence of correspondence with Mr Leiner to this effect (or lack thereof) would go to this issue; |
| 5. Documents created, sent or received by Nita Gollner regarding the applicant including documents relating to the meeting on 28 May, the applicant's pregnancy plan, and any contact made between Ms Gollner and the obstetrician a. the meeting held on 28 May between Ms Gollner, the applicant, and Mr Gleeson; b. the applicant's pregnancy plan and restrictions arising out of the applicant's J pregnancy; and c. contact (if any) made between Ms Gollner and the applicant's obstetrician. | Mr Gleeson has deposed to Ms Gollner's participation in the meeting on 28 May that Ms Gollner "had more to say" (at [71] of the Gleeson Affidavit) and that it was more appropriate for Ms Gollner to speak with the obstetrician (at [72]). The respondents have not provided any evidence about Ms Gollner's participation in this meeting or her involvement in, or alleged agreement to, the outcomes of the meeting (see (76)). |
| 6. Documents relating to Human Resources in respect of the applicant (that is, any HR personnel file and any correspondence involving HR regarding the applicant). | The applicant's adverse action claim is against Mr Gleeson and Nickel West. |
.
Orders previously made
On 4 December 2015 an order had been made, by consent, as follows:
1. On or before 21 December 2015, the parties exchange copies of each document which, as at 21 December 2015, they anticipate and intend on producing and relying on at hearing.
…
5. In addition to those documents exchanged under Order 1, or annexed to any affidavit contemplated by Orders 2 to 4 above, each party must provide the other party with copies of each further document to be produced and relied upon by that party at the hearing by not later than 11 March 2016.
…
(“4 December 2015 Orders”).
On 2 March 2016 the Court made orders including that the 4 December 2015 Orders be vacated, and a further order that:
…
8. In addition to those documents already exchanged, or annexed to any affidavit contemplated by Orders 5 to 7 above, each party must provide the other party with copies of each further document to be produced and relied upon by that party at the hearing by not later than 29 June 2016.
….
(“2 March 2016 Orders”).
On 1 June 2016 this Court made an order, by consent, that:
1. The Parties confer on a Statement of Agreed Facts.
2. On or before 20 June 2016, the Applicant file and serve any Statement of Agreed Facts.
3. On or before 4 July 2016, the Applicant file and serve any supplementary affidavits in support of the Application.
4. On or before 25 July 2016, the Respondents file and serve any affidavits in opposition to the Application.
5. On or before 15 August 2016, the Applicant file and serve any affidavits in reply.
6. In addition to those documents already exchanged, or annexed to any affidavit contemplated by Orders 3 to 5 above, each party must provide the other party with copies of each further document to be produced and relied upon by that party at the hearing by not later than 22 August 2016.
7. The Applicant file and serve an outline of submissions and a list of authorities by 4 November 2016.
8. The Respondents file and serve an outline of submissions and a list of authorities by 9 December 2016.
9. The Applicant file and serve any outline of reply submissions or list of authorities by 23 December 2016.
10. Each party must give notice of any objections to the affidavits filed and of its intention to cross-examine a deponent not later than 10 days before the hearing.
11. The examination in chief of the respective witnesses be on affidavit except by leave of the Court.
12. Liberty is reserved to the parties upon 24 hours' notice to the Court to apply to vary the terms of these directions.
13. Costs, if any, be reserved.
Consideration of discovery application
Relevant legislative provisions
Section 45 of the FCCA Act provides as follows:
(1) Interrogatories and discovery are not allowed in relation to proceedings in the Federal Circuit Court of Australia unless the Federal Circuit Court of Australia or a Judge declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.
(2) In deciding whether to make a declaration under subsection (1), the Federal Circuit Court of Australia 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 Federal Circuit Court of Australia or the Judge considers relevant.
Rule 14.02 of the FCC Rules provides:
(1) A declaration may be made under subsection 45(1) of the Act to allow discovery on the application of a party or on the Court’s own motion.
(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.
Declaration in relation to discovery
Relevant considerations to be taken into account in determining whether to make a declaration under s.45 of the FCCA Act that it is in the interests of the administration of justice to order discovery were summarised in Abrahams v Qantas Airways Ltd (No. 2) [2007] FMCA 639; (2007) 210 FLR 314 at [25]-[26] per Lucev FM (by reference to what was then the Federal Magistrates Act 1999 (Cth) as follows:
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.
26. The categories of relevant factors for the purposes of s.45(2)(b) of the FM Act are obviously not closed.
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 FCC Rules, and observed at [33]-[35] per Rangiah J that:
33 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”: Peruvian Guano at 63. 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.
34 In summary, an order for “disclosure generally” under r 14.02(2)(a) of the FCC Rules is:
“(a) limited to disclosure of documents that are, or have been, in the disclosing party's possession, custody or control; and
(b) limited to documents that are directly relevant to the issues raised by the pleadings or in the affidavits.”
35 That is not to say that it is beyond the power of the Court to make a more expansive order where it is in the interests of the administration of justice to do so, but no such order was made in this case.
In Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd (ACN 002 792 163) & Ors v Woolworths Ltd (ACN 000 014 675) [2015] FCA 1520 (“Colgate-Palmolive”) the Federal Court dealt with an application for discovery made in October 2015, in relation to proceedings commenced on 12 December 2013, and in relation to which an eight week trial was due to commence in June 2016: Colgate-Palmolive at [1]-[2] and [18] per Wigney J. The Federal Court observed that the issue of discovery had first been raised in February 2014, and was again agitated in July and August 2014, but that no interlocutory application seeking discovery was sought at the latter time, and that the relevant party advised that the issue would be re-considered after the filing of non-expert evidence-in-chief by the respondent (the applicant, ACCC, being the party seeking discovery).
Discovery of certain documents in relation to what was described as “New Zealand data” arose for the first time in September 2015. It would appear that it had not previously been an issue: Colgate-Palmolive at [8]-[11] per Wigney J.
In Colgate-Palmolive the Federal Court was concerned about the effect of the late application for discovery upon the eight week trial date listed for commencement in June 2016, and the possibility that that trial date might be lost: Colgate-Palmolive at [19]-[20]. Ultimately, the Federal Court concluded that the discovery application “has simply been made too late in the day”: Colgate-Palmolive at [21] per Wigney J. The Court concluded at [23] per Wigney J that:
23 In my opinion, given the delay in seeking discovery, the difficulties any such order may cause to the existing timetable and hearing date, the added complexity that may arise as a result of this additional aspect of the case, and the, at best, uncertain relevance and importance of the material, the discovery order is not warranted.
A number of observations might be made in relation to Colgate-Palmolive. Firstly, that although in respect of a much larger case, the discovery sought was limited to a single category of documents. Secondly, and again although a much longer trial, the trial was still eight months away when the Federal Court rejected the discovery application by reason, in part, of the proximity of the hearing. Thirdly, the Federal Court took into account the amount of time which had elapsed between the proceedings commencing, and discovery having first been raised, and then the particular discovery application having arisen, there being two months before discovery was raised after the proceedings had commenced, and approximately 21 months before the particular discovery application in relation to the New Zealand data was raised.
A number of factors set out below weigh heavily in the Court’s view against making a declaration that an order for discovery is in the interests of the administration of justice, and might otherwise contribute to the fair and expeditious conduct of, these proceedings.
There has already been considerable discovery, or production of documents, in these proceedings, as follows:
a)by reason of the 4 December 2015 Orders the parties were required to “exchange copies of each document which … they anticipate and intend on producing and relying on at hearing”, and in addition to those documents, or any documents annexed to any affidavit, they were to provide the other party “with copies of each further document to be produced and relied upon by that party at the hearing by not later than 11 March 2016”;
b)the deadline in respect of the 11 March 2016 deadline was extended to 29 June 2016 on 2 March 2016 by the 2 March 2016 Orders;
c)the deadline of 29 June 2016 was further extended to 22 August 2016 by the 2 March 2016 Orders;
d)further documents were provided by Nickel West and Mr Gleeson to Ms Gallagher pursuant to informal requests for disclosure in August and September 2015: Affidavit of Ms Mallott at [11]; and
e)documents are annexed to the various affidavits filed in the proceedings.
The lateness of the application also weighs against a declaration for discovery being made. Pleadings were closed on 30 March 2016, and the parties filed a lengthy 68 paragraph, Statement of Agreed Facts on 10 November 2016, which relies, save for two paragraphs, on facts pleaded in the Amended Application. The nature of the pleadings in this case is such that they are extremely detailed (Ms Gallagher used a very detailed narrative style of pleading, to which Nickel West and Mr Gleeson have responded more or less in kind), and which, together with the detailed Statement of Agreed Facts. It means that neither party is likely to be taken by surprise in relation to the issues arising at hearing. The lateness is exacerbated by the fact that Nickel West and Mr Gleeson’s final affidavits were filed and served by 1 August 2016, but the current application for discovery was not made until more than three months later, on 11 November 2016. Whilst Ms Gallagher endeavours to justify this by the undertaking of conferral between the parties (and there is no doubt that that is appropriate) it is plain from the correspondence that no request for discovery, in anything like the terms approaching the present application, was made until 14 October 2016, and that by 20 October 2016 Nickel West and Mr Gleeson had indicated to Ms Gallagher that an application ought to be brought in respect of disputed discovery. The discovery application was not brought for another three weeks, and then not able to be listed for hearing for a further 11 days. There is little doubt that Ms Gallagher could have acted with more expedition throughout this process, and that whilst conferral has its place, so to does action, particularly in this case given the proximity of the final hearing.
In this case, therefore, the discovery application by Ms Gallagher has been made less than three months (a period which includes the usual Christmas and New Year break) before a hearing of three days, which has been so listed since March 2016. As at the date of these Reasons for Judgment the hearing is a little over six weeks hence. Both in the context of the date of the application in a case, the hearing of the application in a case, and the date of these Reasons for Judgment the proximity of the hearing weighs heavily against a discovery declaration being made. That would be so of itself, and without reference to other factors to which the Court is about to advert.
The request for discovery is not a simple one: although the Court has no doubt that Ms Gallagher has done her best to specify particular categories of documents, those categories of documents are nevertheless less still relatively broad, and often expressed in comparatively broad terms (including categories of documents “in relation to”, “that may have been created or produced by” (and thereby speculative as well), “in connection with”, and covering relatively lengthy periods of time in the 2014 and 2015 calendar years, and requiring searches involving reference to at least half a dozen people, and documents located in a variety of metropolitan and regional areas. Further, the six broad categories of documents set out in the category and description of documents are broken down, at least in relation to categories 2 and 5 into a total of a further nine sub-categories. The breadth of the discovery application, the time which will be needed to deal with it, the number of people that would have to deal with it, the areas in relation to which the search would have to be conducted, are such that in the Court’s view the discovery process arising from the discovery application would be extensive. The Court is concerned that if it made a declaration that a discovery order issue, that the discovery process, may mean that it is necessary to adjourn the February 2017 hearing. That factor weighs heavily against granting a declaration with respect to discovery. That view is reinforced by the fact that were the matter to be adjourned there could be no further listing of a three-day hearing in Fair Work in the Perth Registry until July 2018. Case management is also a relevant consideration, particularly in relation to the interests of the administration of justice, which is broader than the interests of justice by reason of its administrative aspect: Genovese v BGC Construction Pty Ltd [2006] FMCA 1507 at [28] per Lucev FM; and see Aon Risk Services. It is not in the interests of the administration of justice, and not in the interests of the parties, for this matter to be adjourned until at least July 2018.
Whilst the documents sought to be discovered may be relevant, it is not apparent that they are of sufficient relevance in the context of the discovery that has already taken place, to warrant a further discovery order. Discovery under s.45 of the FCCA Act is not traditional discovery, but a pared back version thereof: Hartnett Legal Services at [33] per Rangiah J. It is also not apparent from the discovery application as to the volume of documents sought to be discovered, but given the number of categories, the width of the description, the number of people likely to be involved and the places in which the search has to take place it appears to the Court that the actual search itself might be voluminous and take several weeks. It is also not apparent that discovery would narrow the issues or be of benefit in the litigation, particularly given the detailed nature of the pleadings, the discovery which has already taken place, and the affidavits which have been filed.
In all of the above circumstances, the Court does not consider it to be in the interests of the administration of justice, or necessary for the fair and expeditious conduct of these proceedings, to grant a declaration under s.45 of the FCCA Act with respect to discovery as sought by Ms Gallagher in her application in a case.
Conclusion and orders
The Court has concluded for the above reasons, that Ms Gallagher’s application in a case filed 11 November 2016 must be dismissed.
In relation to costs, and bearing in mind the provisions of s.570(2) of the FW Act, which make costs in FW Act proceedings in this Court the exception rather than the rule, Nickel West and Mr Gleeson will need to give very serious consideration as to whether a costs application by either of them is justified in the circumstances. If a costs application is to be made then it can be made in accordance with the provisions of r.21.02(1)(a) of the FCC Rules, and if any such application is made, the Court will list that costs application for directions.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 22 December 2016
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