Gregory Culpan v The Star Pty Ltd
[2012] FWA 6436
•30 JULY 2012
[2012] FWA 6436 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Gregory Culpan
v
The Star Pty Ltd
(U2012/6620)
COMMISSIONER BISSETT | MELBOURNE, 30 JULY 2012 |
Application for unfair dismissal remedy - orders to produce documents.
[1] On 21 June 2012 the Respondent (The Star) sought orders for the production of documents against five parties in respect of the above matter.
[2] On 11 July 2012 orders were issued for the production of documents to Seven Network Limited, Seven Network (Operations) Limited, Australian Broadcasting Corporation, and to a fourth party not affected by this decision.
[3] A fifth order sought by the Respondent, addressed to the Applicant, was subject to objection by the Applicant. The order was subsequently not issued and instead the matter of that order was called on for mention on 26 July 2012 in Sydney.
[4] Prior to the hearing on 26 July 2012 the Australian Broadcasting Corporation (ABC) sought, and was granted, an extension of time for compliance with the order addressed to it until the time and date of the hearing. Seven Network (Operations) Limited (SNOL) also sought, and was granted, an extension of time for compliance with the order addressed to it.
[5] The hearing on 26 July 2012 ultimately dealt with the order sought for production of documents addressed to the Applicant, the order issued to the ABC, the order issued to SNOL and the order issued to Seven Network Limited.
[6] Given the need to finalise the orders to enable parties to comply with directions for the filing of materials in the substantive matter this decision is, by necessity, brief. The parties to these proceedings can be satisfied however that I have considered all of the submissions made in reaching my decision.
[7] At the conclusion of the hearing Mr Dawson of counsel, appearing separately for the ABC and Seven Network Limited and SNOL, sought an order for costs against the Respondent for each of his clients. A decision with respect to this matter will be issued separately.
Order sought addressed to the Applicant
[8] It is appropriate to deal with this order first. The resolution of this order and the orders issued to the ABC and SNOL are interrelated.
[9] The references below to each category refer to the categories identified in the draft order originally filed with Fair Work Australia (FWA) on 21 June 2012.
Category 1
[10] The Respondent continues to press for this order in its original form but indicates that production will not be pressed until discussions have taken place between the parties as to a method of production and timeframe. Should such discussions not resolve the matter in a reasonable period the Respondent says the order would apply as it stands. Mr Seck of counsel, appearing for the Respondent, indicated that the material sought relates to emails that the Applicant may have received at his personal email addresses that may have been deleted, but is recoverable by software experts and falls within the scope of the proceedings.
[11] Mr Shariff of counsel, appearing for the Applicant, says the order is so draconian that it should not be made. The order would require the Applicant to provide his mobile phone, a computer at his parents’ house that he sometimes uses (but is also used by his parents) and his own laptop used by him and his wife. His parents’ computer contains material personal to his parents as well as material potentially sought to be captured by the order; his laptop contains personal information as well as privileged information and material of no relevance to the proceedings. Mr Shariff suggests that the order is akin to an Anton Piller order and that there are specific practice notes in the Supreme Court and Federal Court directed to the deployment of such orders designed to ensure privacy and protect privilege the Applicant may be entitled to claim.
[12] I agree with the submissions of Mr Shariff. The order, in the form sought, is extraordinarily broad, is draconian and would in my opinion be oppressive should the Applicant be required to comply with it. Whilst the temptation might be to not allow the order in any form I believe the scope of the order to be relevant to the matters that may legitimately arise during arbitration. It is the matter of the process to be utilised to identity the relevant material held on the devices described in the order that appears to be the critical issue. It is my view that this issue can be resolved. It will not be resolved by leaving the order as it is originally proposed and leaving it to the parties to agree on some alternative approach. If there are legitimate issues with respect to privacy these need to be protected in the order itself.
[13] The order shall require that the Respondent engage an independent third party to provide forensic computer services. The Applicant shall be required to provide access to all computers, mobile electronic communication devices, hard drives and other electronic storage devices that contain or have contained emails received from the Applicant’s work email addresses at the Respondent in the Applicant’s possession, custody and control to that independent third party. The independent third party shall be required to undertake a forensic examination of the devices. The third party shall provide to FWA a statutory declaration which includes an undertaking that it has kept and shall keep confidential any details relevant to accessing emails and the nature and content of emails stored on those devices from the two email addresses identified above. The statutory declaration shall also include an undertaking that the independent third party has kept and shall continue to keep confidential any other material that it may have seen or accessed on the devices that does not pertain to the subject matter of this order. The independent third party shall provide to FWA both hard and soft copies of the emails. Should the Respondent seek to examine such documents an application for such should be made to FWA.
[14] The third party must be identified to the Applicant at the time the order is served. Any dispute over the third party must be notified to my chambers immediately and will be resolved by an order should this be necessary.
Category 2
[15] Category 2 is said by Mr Seck to relate to a period of time when structural separation was occurring between two arms of The Star. Technical issues resulted in the loss of some deleted emails from The Star’s systems.
[16] The order shall include a date range of documents of between 1 September 2011 and 13 March 2102 for this category.
Category 3
[17] No objection is made.
Category 4
[18] The Respondent seeks that the time period for documents sought be for the period between 20 February 2010 and 13 March 2012. The Applicant objects to the lengthy time period.
[19] The Respondent, in its submissions, identified that it relies upon emails from that particular time period in seeking to justify the termination of the Applicant’s employment. I am satisfied that emails from that period have relevance to issues that may arise during the hearing of the substantive matter.
[20] I have decided that the period in the order for this category shall be from 20 February 2010 to 13 March 2012.
Category 5
[21] This category is no longer pressed by the Respondent on the basis of concessions made by Mr Shariff for the Applicant.
Category 6
[22] The Respondent seeks that the order be issued but with a date range of 1 February 2012 to 13 March 2012.
[23] This variation is proposed on the basis of concessions made by Mr Shariff with respect to contact made between the Applicant and SNOL for the purpose of one interview.
[24] I propose to issue the order as sought save that the date range within the order shall be 1 February 2012 to 13 March 2012.
[25] I note that the Applicant advises that there are no documents to submit in this category.
[26] Mr Dawson for SNOL indicated that it would not object to the category, as amended in this order, if it was reflected in an order addressed to SNOL.
Category 7
[27] The Respondent proposes that the order be varied by deleting various words and adding the words “created between 1 February 2012 and 13 March 2012”.
[28] Mr Dawson for SNOL indicated that it would not object to the category, as amended in this order, if it was reflected in an order addressed to SNOL.
Category 8
[29] This category is no longer pressed by the Respondent.
Category 9
[30] This category is no longer pressed by the Respondent.
Category 10
[31] This category is no longer pressed by the Respondent.
Category 11
[32] Mr Seck for the Respondent says that the documents sought with respect to this category are in the nature of proprietary or confidential information which belongs to The Star and related companies.
[33] This category shall remain in the order. I understand from the submissions of Mr Shariff that there are no documents to produce that fall within this category.
Category 12
[34] This category shall remain in the order. I understand from the submissions of Mr Shariff that there are no documents to produce that fall within this category.
Categories 13-15
[35] No objection is taken to these.
Conclusion
[36] An order to produce documents addressed to the Applicant will be issued in accordance with this decision.
Order issued to the ABC
[37] At the conclusion of the hearing on 26 July 2012 counsel for the Respondent indicated that it no longer pressed for the order addressed to the ABC. I therefore indicated that the order addressed to the ABC would be set aside.
[38] An order to this effect will be issued.
Order issued to Seven Network Limited
[39] During the hearing on 26 July 2012 counsel for Seven Network Limited indicated that with respect to that order there are no documents to produce as it is the wrong entity. No more needs to be said of this.
[40] In any event I shall set aside this order of the same reasons I give for setting aside the order against SNOL (below).
Order issued to Seven Network (Operations) Limited
[41] At the conclusion of the hearing on 26 July 2012 I set aside the order against SNOL and granted leave to the Respondent to seek to re-issue the order in accordance with my decision on the order addressed to Mr Culpan. As such there is no order addressed to SNOL for me to vary.
[42] Should the Respondent seek an order addressed to SNOL such an order, in accordance with my decision above, should be prepared and forwarded to my chambers for consideration.
[43] During the hearing Mr Dawson for SNOL indicated that, should the order be issued, the timeline for return of the order should take into account that the journalist involved in the matter is currently in London at the Olympics and will not return until mid-August, making it difficult to comply with the order. SNOL would therefore seek a return date on the order of late August.
[44] In consideration of this I indicate that any order sought to be addressed to SNOL should have a return date of mid-August for all material save for that material solely in the control of the journalist which cannot be searched and forwarded electronically or is not in the immediate possession of the journalist, which should be returned by 30 August 2012.
COMMISSIONER
Appearances:
Y Shariff of Counsel for the Applicant
M Seck of Counsel for the Respondent
ATS Dawson of Counsel for Seven Network Limited, Seven Network (Operations) Limited, and the Australian Broadcasting Corporation
Hearing details:
2012.
Sydney:
July 26.
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