Halbert v Zoll Medical Australia Pty Ltd
[2024] FedCFamC2G 1147
•6 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Halbert v Zoll Medical Australia Pty Ltd [2024] FedCFamC2G 1147
File number(s): SYG 272 of 2024 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 6 November 2024 Catchwords: INDUSTRIAL LAW – Practice and Procedure – determination of notices of objection to categories of documents called by subpoenas the applicant caused to be issued Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 16.13 Cases cited: Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corp Ltd [1984] 1 NSWLR 710
Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921
Wong v Skalvos [2014] FCAFC 120
Division: Fair Work Number of paragraphs: 28 Date of hearing: 28 October 2024 Place: Sydney Solicitor for the Applicant: Mr B Gilbert of Gilberts Legal Counsel for the Respondent: Mr D Mahendra Solicitor for the Respondent: Sasphire Legal ORDERS
SYG 272 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAYMOND HOSER
Applicant
AND: ZOLL MEDICAL AUSTRALIA PTY LTD (ABN 15 097 377 261)
First Respondent
TREVOR MACLEOD
Second Respondent
EMILIA ANGELEVSKI
Third Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
5 NOVEMBER 2024
THE COURT ORDERS THAT:
1.There be allowed the respondents’ objections to the production of the documents described in:
(a)paragraphs 2, 4, 5, and 16 of the subpoena the applicant caused to be issued to first respondent;
(b)paragraph 7 of the subpoena the applicant caused to be issued to the second respondent; and
(c)paragraphs 2 and 8 of the subpoena the applicant caused to be issued to the third respondent.
2.There be disallowed the respondents’ objections to the production of the documents described in:
(a)paragraphs 6 and 9 of the subpoena the applicant caused to be issued to the first respondent; and
(b)paragraph 2 of the subpoena the applicant caused to be issued to the second respondent.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
At 9:30 am on 5 November 2024 I pronounced orders in relation to objections to the production of certain categories of documents described in subpoenas the applicant, Ms Halbert, has issued against the respondents. At the time I pronounced my orders, I noted that, although I had completed a draft of my reasons for pronouncing my orders, I required further time to bring the draft into publishable form.
These reasons for judgment are the final form of the draft reasons for judgment on the basis of which I pronounced my orders on 5 November 2024. For ease of expression, I have not altered the draft to reflect the fact that these reasons for judgment will be published after I pronounced my orders.
Before I identify the categories of documents that are the subject of objection, it will be necessary to set out the issues that arise on the pleadings.
ISSUES ON APPLICANT’S CLAIMS
Ms Halbert alleges as follows in the Form 2 (statement of claim) she filed with her application:
(a)Ms Halbert commenced employment with the first respondent (ZMA) on 31 July 2017 in the position of “Territory Manager (Sales)”; and on 1 April 2021, she was promoted to the position of “National Clinical Manager”.
(b)During the course of a work event on 1 November 2022, Ms Halbert was sexually harassed by an employee of ZMA, Mr O. On the same day, Ms Halbert complained to ZMA’s Human Resources Manager, Ms D, that Mr O had sexually harassed her (First workplace right).
(c)In or around March 2023 Ms Halbert complained to Ms D and to the second respondent, Mr Macleod, ZMA’s managing director, that she found ZMA’s workplace culture to be unsafe; she was concerned no one was working within a collaborative team environment, and that was impacting her capacity to discharge her duties; she was not receiving appropriate support from Mr Macleod in her role within the team; and, as a result of ZMA’s oppressive work environment, Ms Halbert’s mental health was declining, and she was suffering from significant stress (Second workplace right).
(d)In or around July 2023 Ms Halbert complained to Mr Macleod that ZMA had mismanaged and failed properly to investigate her complaint regarding Mr O’s sexual harassment of her, as it was not treated as a formal complaint; ZMA’s workplace culture continued to be unsafe; she was not receiving proper support from ZMA in relation to her mental health which was impacting her ability to discharge her role; and ZMA’s conduct was further impacting her mental health (Third workplace right).
(e)In August 2023 Ms Halbert took approximately one-month personal/carer’s leave because of her deteriorating mental health, of which ZMA had been informed (Fourth workplace right).
(f)On 1 September 2023 Mr Macleod informed Ms Halbert that a bullying complaint had been made against her, and ZMA would investigate that complaint (Workplace Investigation). Mr Macleod did not provide Ms Halbert any particulars of the complaint that had been made against her; and Mr Macleod suggested Ms Halbert remain off work, Ms Halbert would be required to furnish a medical certificate, and ZMA would not be reimbursing her for counselling sessions with “the EAP” in connection with the complaint she had raised regarding Mr O’s conduct (First Adverse Action).
(g)The First Adverse Action was taken because of Ms Halbert’s exercise of the First, Second, Third, and Fourth workplace rights.
(h)On 25 September 2023 Ms Halbert sent an email to Mr Macleod in relation to the First workplace right, in which she complained that her deteriorating mental health had stemmed from ZMA’s response to the First workplace right; she inquired about the particulars of the Workplace Investigation; and she inquired about the policy and procedure that was to be adopted for the Workplace Investigation (Fifth workplace right).
(i)On 3 October 2023 Ms Halbert attended a meeting with Mr Macleod and the third respondent, Ms Angelevski, ZMA’s “Human resources Manager ANZ”, during which Ms Halbert reiterated her complaint about ZMA’s failure to duly investigate her allegations regarding the sexual harassment by Mr O; complained about ZMA’s workplace culture; and complained about feeling overwhelmed and burnt out in relation to her role (Sixth workplace right).
(j)Also during the meeting of 3 October 2023 Ms Halbert informed Mr Macleod and Ms Angelevski she was suffering from post-traumatic stress disorder (PTSD) (Protected Attribute).
(k)On 9 October 2023 Ms Halbert attended a meeting with Mr Macleod and Ms Angelevski during which Ms Halbert reiterated her complaint about Mr O’s sexual harassment; complained about ZMA’s workplace culture; complained about various instances of bullying; and complained about other psychological hazards and safety issues which concerned her (Seventh workplace right).
(l)In August or September 2023 ZMA had arranged for Ms Halbert to attend a work conference in Malaysia that was scheduled to take place at the end of October 2023; but on 17 October 2023 Ms Halbert was issued correspondence directing her to attend a meeting ostensibly to discuss allegations relating to the Workplace Investigation. During the meeting, Ms Angelevski referenced Ms Halbert’s sexual harassment complaint against Mr O, and informed her that ZMA had decided Ms Halbert was not to attend the conference in Malaysia (Second Adverse Action).
(m)The Second adverse action was taken because Ms Halbert had exercised the First, Second, Third, Fourth, Fifth, Sixth, and Seventh workplace rights.
(n)On 9 November 2023 Ms Halbert attended a meeting with Mr Macleod and Ms Angelevski in which Ms Halbert was informed that her complaints relating to Mr O had not been substantiated, and that ZMA had found that Ms Halbert had engaged in bullying and harassment.
(o)On 17 November 2023 Ms Halbert received correspondence from ZMA requesting that she show cause why her employment not be terminated, noting that a response should be provided by Monday 20 November 2023, and that a meeting would be arranged for 21 November 2023.
(p)On 21 November 2023 Ms Halbert’s representative informed ZMA’s representative that Ms Halbert was not well enough to attend the meeting.
(q)On 22 November 2023 ZMA terminated Ms Halbert’s employment (Third adverse action), and ZMA did so because Ms Halbert had exercised the Workplace rights to which I refer above, and also because of her Protected Attribute.
In their defence, the respondents:
(a)Admit that on 1 November 2022 Ms Halbert complained to ZMA that Mr O had sexually harassed her.
(b)Admit Ms Halbert met with Ms D and Mr Macleod in March 2023; deny Ms Halbert made complaints; and says that in the meeting Mr Macleod raised concerns about Ms Halbert’s leadership and management skills, and conveyed to her that Ms Halbert’s direct reports found her communication style intimidating; and Mr Macleod and Ms D offered Ms Halbert support and assistance to address those concerns.
(c)Admit Ms D and Mr Macleod met with Ms Halbert on 27 June 2023, and that, at the meeting Ms Halbert raised a concern about Mr O’s alleged conduct and the impact it allegedly had on Ms Halbert’s mental health, but otherwise deny that Ms Halbert made the complaints she alleges she made.
(d)Admit that on 25 September 2023 Ms Halbert sent an email to Mr Macleod in which she complained that her deteriorating mental health had stemmed from ZMA’s response to the First workplace right; that she inquired about the particulars of the Workplace Investigation; and she inquired about the policy and procedure that was to be adopted for the Workplace Investigation.
(e)Admit that on 3 October 2023 Ms Halbert met with Ms D and Mr Macleod to discuss Ms Halbert’s return to work, but otherwise deny what Ms Halbert alleges occurred at that meeting.
(f)Admit that on 9 October 2023 Ms Halbert attended a meeting with Mr Macleod and Ms Angelevski during which Ms Halbert reiterated her complaint about Mr O’s sexual harassment; complained about ZMA’s workplace culture; complained about various instances of bullying; and complained about other psychological hazards and safety issues which concerned her.
(g)Admit that in August or September 2023 ZMA had arranged for Ms Halbert to attend a work conference in Malaysia that was scheduled to take place at the end of October 2023; on 17 October 2023 Ms Halbert was directed not to attend the scheduled conference in Malaysia; but say that the sole reason Ms Halbert was directed not to attend was because she was the subject of an ongoing investigation into allegations against her that she had bullied another employee of ZMA.
(h)Admit that on 17 November 2023 Ms Halbert received correspondence from ZMA requesting that she show cause why her employment not be terminated, noting that a response should be provided by 20 November 2023, and that a meeting would be arranged for 21 November 2023; admit that on 21 November 2023 Ms Halbert’s representative informed ZMA’s representative that Ms Halbert was not well enough to attend the meeting admit that on 22 November 2023 ZMA terminated Ms Halbert’s employment; but say that Ms Halbert’s employment was terminated solely because she had engaged in bullying conduct that amounted to misconduct.
In her written submissions, Ms Halbert submits that the following issues arise on the pleading (Applicant’s Issues):
a.Was the applicant sexually harassed by Mr O as alleged in paragraph 11 of the statement of claim. (Issue 1).
b.Did the applicant make the complaints as alleged in paragraphs 14, 17 and 29 of the statement of claim? (Issue 2).
c.Did the first respondent properly investigate the applicant’s complaints of being sexually harassed by Mr O (paragraph 17a). (Issue 3)
d.Did the second respondent and Ms D send the applicant text messages and speak with her on numerous occasions by phone after the March 23 meeting, as alleged in paragraph 16 of the defence? (Issue 4)
e.Was the applicant provided with particulars of the workplace investigation into the alleged allegations of bullying by her (paragraph 24a)? (Issue 5)
f.Did the second respondent inform the applicant that the first respondent would not reimburse her for medical expenses incurred as a result of being sexually harassed by Mr O (paragraph 24d)? (Issue 6)
g.Was the workplace investigation initiated because the applicant made the complaints and took personal leave (paragraph 26)? (Issue 7)
h.Did the applicant disclose to the first respondent that she was suffering from PTSD as a result of being sexually harassed by Mr O (paragraphs 31 and 32). (Issue 8)
i.Was the applicant precluded from attending the conference in Penang because she made the complaints and took personal leave, or was it solely because she was the subject of the workplace investigation (paragraph 41)? (Issue 9)
j.Was the applicant’s employment terminated because she made the complaints and took personal leave, or was it solely because she had engaged in workplace bullying amounting to misconduct which warranted summary dismissal? (Issue 10)
NATURE OF DISPUTE AND APPLICABLE PRINCIPLES
The dispute with which these reasons deal does not arise on an application to set aside any of the subpoenas Ms Halbert caused to be issued. It arises as a consequence of each of the respondents completing a “notice of objection”. That is a form that has been prescribed for the purposes of r 16.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules), subrule (1) of which provides:
A person who objects to producing a document subpoenaed, or another party or an interested person who objects to the inspection or copying of a document subpoenaed by a party to the proceedings, must notify the Registrar and the issuing party, in writing, of the objection and the grounds of the objection before the day stated in the subpoena for production.
This rule is predicated on a subpoena’s having been properly issued; and it is directed to the granting of access to documents that are otherwise properly before, or are properly liable to come before the Court, in answer to an unimpeached subpoena. The parties, however, have not proceeded on this basis. The grounds of objection on which the respondents rely reflect grounds on which a subpoena may be set aside, in whole or in part. The principal grounds stated in the notices of objection are that the subpoenas call for the production of documents that are extraordinarily broad, imprecisely drafted, unclear, and ambiguous. Ms Halbert, for her part, has joined issue with these grounds. In these circumstances, I will proceed on the basis that the principles I should apply when determining the objections are those that apply in applications to set aside a subpoena.
The principles that apply to the setting aside of a subpoena are not in doubt, and they have been helpfully set out by the Full Federal Court in Wong v Skalvos:[1]
The party issuing a subpoena bears the onus of demonstrating that the subpoena has a legitimate forensic purpose in relation to the issues in the proceedings. A subpoena may be set aside if it requires the production of documents which do not have apparent relevance to the issues arising on the pleadings. Other cases have used different terminology, but with essentially the same effect, for example, by requiring that, viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative, or that the material sought is reasonably likely to add in some way to the relevant evidence in the case, or that it be “on the cards” that the documents sought will materially assist the party at whose request the subpoena has been issued.
[1] Wong v Skalvos [2014] FCAFC 120, at [12] (references omitted)
Subpoenas must not be used as a substitute for discovery. That rule, however, does not require that the subpoena identify documents individually. It is permissible to describe documents by reference to, or in relation to, a particular subject matter. Waddell J made this point in Spencer Motors Pty Ltd v LNC Industries Ltd:[2]
It is, of course, important not to read the passage cited as forbidding the use of expressions such as “relating to”. Taken as a whole, the passage indicates that what is objectionable is placing on the person to whom a subpoena is addressed the same kind of burden as is placed on a party required to give discovery of documents. Broadly speaking, that burden is to go through the documents in his possession or power and list each document which relates to the matters in question in the proceeding in the sense that “it contains information which may — not which must — either directly or indirectly enable the party requiring the discovery either to advance his own case or to damage the case of his adversary, or which may fairly lead to a train of inquiry which may have either of these two consequences”: . . .
Use of expressions such as “relating to” need not result in there being any oppression or abuse of process. It all depends on the context in which the expression is used. For instance, it could hardly be said to be objectionable to require a person to produce all “invoices” relating to sales of a particular item to the defendant on a particular day. The use of the word “invoices” would restrict the potential width of the expression “relating to”.
[2] Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921, at page 929
Also relevant is the following passages from the judgment of Clarke J in Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corp Ltd:[3]
[I]t does not follow . . . that a subpoena requiring the production of documents relating to a specified subject matter is necessarily objectionable on the ground it calls for discovery. . . .
I have been at pains in this judgment to point out that court procedures are designed to bring about, as far as possible, an efficient and expeditious resolution of disputes between parties. They are essentially practical matters. The subpoena, which is an important part of the process, requires a person, quite often a lay person, to bring to court documents which may be specified in particular or general terms. The recipient is not and should not be required to consult a dictionary and then carry out an exercise in construction of the document before embarking upon the collection of the documents.
The court, in determining whether a subpoena is oppressive, is concerned with whether in all the circumstances the demand is, for relevant purposes, too wide or uncertain. For this purpose it must determine whether the terms of the subpoena convey to the recipient in relatively clear language the document or class of document called for. The court would inquire, I apprehend, as to the meaning which would be conveyed to members of the public as opposed to the meanings which might be conveyed to lawyers engaged in a debate upon construction. It seems to me that, in the context of the subpoena with which I am presently concerned, the recipient would not be concerned with fine distinctions between “relating to” and “referring to” and would read them as broadly calling for the same range of documents.
[3] Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corp Ltd [1984] 1 NSWLR 710, at pages 718 and pages 720-721
THE CATEGORIES OF DOCUMENTS
The documents the respondents object to producing are described in the following table prepared by the respondents’ lawyers:
1R 2R 3R Category of Document (2) Documentation in the possession of any employees of ZOLL regarding the Applicant’s sexual harassment complaint made 1 November 2022 and investigation materials, including documentation regarding who was interviewed regarding the complaint. (4) A copy of Mr O’s employment file, including all complaints against Mr O and all incidents involving Mr O (later amended to the period of 31 October 2022 to 22 November 2023). (5) (2) Documentation regarding the decision-making process that led to the determination that Mr O did not engage in sexual harassment between 1 November 2022 to 22 November 2023. (6) Documentation in Ms Halbert’s employment file, including all complaints made by Ms Halbert. (9) A copy of phone records (including call and texts) made by Ms D and Mr Macleod to Ms Halbert after the March 2023 meeting. (16) (7) (8) Documents regarding Ms Halbert’s claims for medical reimbursement for the period 1 January 2021 to 22 November 2023 (2) Documentation from Ms D and the Second Respondent regarding the First Respondent’s meeting with the Applicant in March 2023. DETERMINATION
Categories 1R(2), 1R(5), 3R(5)
These categories overlap; and it would be convenient to consider them together.
Ms Halbert submits these documents are relevant to Applicants’ Issues 1, 2, 3 and 6. Applicant’s Issue 1 is an immaterial issue. The elements of the claims Ms Halbert makes are, not that she was sexually harassed, but that she exercised her workplace right by having complained that she had been sexually harassed; and it is because she exercised this and other workplace rights that ZMA took adverse action against her in contravention of s 340(1) of the Fair Work Act 2009 (Cth). Thus categories 1R(2) and 1R(5) are not relevant on account of Applicant’s Issue 1.
Categories 1R(2) and 1R(5) are also not relevant to Applicant’s Issues 2, 3, or 6:
(a)Applicant’s Issue 2 relates to paragraphs 14, 17, and 29 of the statement of claim; but these are allegations about what was said or not said at the meeting of March 2023, the meeting of 27 July 2023, and the meeting of 3 October 2023. Documents relating to the investigation of Ms Halbert’s sexual harassment complaint are not relevant to determining what was said at those meetings.
(b)Applicant’s Issue 3 relates to the allegation made in paragraph 17(a) of the statement of claim that, at the meeting of July 2023, Ms Halbert complained to Mr Macleod that ZMA had mismanaged and failed to properly investigate the complaint regarding Mr O’s sexual harassment of Ms Halbert. What is in issue is not whether ZMA properly investigated the complaint of sexual harassment, but whether Ms Halbert so complained at the meeting.
(c)Applicant’s Issue 6 relates to the allegation made in paragraph 24(d) of the statement of claim, namely, whether Mr Macleod informed Ms Halbert that ZMA would not be reimbursing her for counselling services in connection with the complaint Ms Halbert made about Mr O. The only documents that could conceivable be relevant to this issue are documents that refer or record Ms Macleod having so informed Ms Halbert.
In oral address Mr Gilbert, who appeared on behalf of Ms Halbert, submitted that it was necessary to “go behind” ZMA’s decision to terminate Ms Halbert’s employment “and investigate all of reasons for the decision being made”. Mr Gilbert referred to an email Ms Angeleski, on behalf of ZMA, sent to Ms Halbert on 18 October 2023 which, Mr Gilbert submitted, contradicted a positive allegation made in the defence. Mr Gilbert, however, did not explain how documents that were created in the course of the investigation of Ms Halbert’s complaint of sexual harassment are relevant or potentially relevant to determining whether ZMA decided to terminate Ms Halbert’s employment for the reasons ZMA says it did, or, indeed, for the reasons Ms Halbert alleges ZMA took any of the adverse action she alleges ZMA had taken against her. It is admitted on the pleadings that Ms Halbert made an allegation of sexual harassment; and it is admitted that on 9 November 2023 ZMA informed Ms Halbert that her complaint of sexual harassment had not been substantiated.
I therefore propose to allow the objection to categories 1R(2) and 1R(5).
Category 1R(4)
Ms Halbert submits this category is relevant to Applicant’s Issues 1 and 3. I have already concluded that Applicant’s Issue 1 is not a material issue in the proceeding; and Applicant’s Issue 3 relates to the allegation made in paragraph 17(a) of the statement of claim that, at the meeting of July 2023, Ms Halbert complained to Mr Macleod that ZMA had mismanaged and failed to properly investigate the complaint regarding Mr O’s sexual harassment of Ms Halbert. The copy of Mr O’s employment file is not relevant to this issue.
I propose to allow the objections to category 1R(4).
Category 1R(6)
Ms Halbert submits this category is relevant to “all issues”. In his oral submissions, Mr Gilbert submitted, among other things, that Ms Halbert’s employment file is relevant to the allegation that, during the course of her employment, and particularly around March 2023, Ms Halbert was considered an exemplary employee, and received positive feedback from ZMA. ZMA denies this allegation.
Whether Ms Halbert was an exemplary employee is a material allegation, it being relevant to loss and damage Ms Halbert alleges in paragraph 50 of the statement of claim.
I propose, therefore, to disallow the objection to category 1R(6).
Category 1R(9)
Ms Halbert submits these documents are relevant to Applicant’s Issue 4, being the issue that arises from the positive allegation in paragraph 16 of the defence that Mr Macleod and Ms D met with Ms Halbert, sent her text messages, and spoke with her on numerous occasions by phone to offer support in relation to the matters pleaded in paragraph 14(a) of the defence.
These documents are relevant to a material allegation contained in the pleading; and, for that reason I propose to disallow the objection to category 1R(9).
Categories 1R(16), 2R(7), and 3R(8)
Ms Halbert submits this category of documents is directly relevant to Applicant’s Issue 6, namely, the issue that arises from the respondents’ denial of paragraph 24(d) of the statement of claim that, at the meeting of 1 September 2023, Mr Macleod said that ZMA would not be reimbursing Ms Halbert for her counselling session. The only documents that could potentially be relevant to this issue are those which have a tendency to prove that Mr Macleod did make such a statement.
Categories 1R(16), 2R(7), and 3R(8) are much too broad in relation to the issue that arises from the respondents’ denial of paragraph 24(d) of the statement of claim and, for that reason, I propose to allow the objection to the production of documents that fall within these categories.
Category 2R(2)
Ms Halbert submits this category is relevant to the allegation made in paragraph 14 of the statement of claim, and the positive allegations made by the respondents in their defence. The documents are relevant; and I propose to disallow the objection to this category of documents.
DISPOSITION
I propose to:
(a)allow the respondents’ objections to the production of the documents described in:
(i)paragraphs 2, 4, 5, and 16 of the subpoena Ms Halbert caused to be issued to ZMA;
(ii)paragraph 7 of the subpoena Ms Halbert caused to be issued to Mr Macleod; and
(iii)paragraphs 2 and 8 of the subpoena Ms Halbert caused to be issued to Ms Angelevski; and
(b)disallow the respondent’s objections to the production of the documents described in:
(i)paragraphs 6 and 9 of the subpoena Ms Halbert caused to be issued to ZMA; and
(ii)paragraph 2 of the subpoena Ms Halbert caused to be issued to Mr Macleod.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 6 November 2024