Haley v Laing O'Rourke Australia Management Services Pty Ltd
[2021] FedCFamC2G 8
•3 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Haley v Laing O’Rourke Australia Management Services Pty Ltd [2021] FedCFamC2G 8
File number(s): SYG 2432 of 2020 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 3 September 2021 Catchwords: INDUSTRIAL LAW – Practice and procedure – application for leave to file further amended Form 2 – application dismissed – application to set aside paragraphs of notice to produce – some paragraphs of notice to produce set aside. Legislation: Fair Work Act 2009 (Cth) ss 550(1), 550(2)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 8
Trade Practices Act 1974 (Cth) s 75B
Workplace Relations Act 1996 (Cth) s 728
Cases cited: Dowling v Kirk & 16 Ors [2007] FMCA 2106
Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034
Haley v Laing O'Rourke Australia Management Services Pty Ltd [2021] FCCA 257
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 Sklavos [2014] FCAFC 120
Yorke v Lucas (1985) 158 CLR 661
Division: Division 2 General Federal Law Number of paragraphs: 58 Date of last submission/s: 26 August 2021 Date of hearing: 20 July 2021 Place: Sydney The Applicant: Appeared in person, by telephone Counsel for the Respondent: Mr R Jedrzejczyk, by telephone Solicitor for the Respondent: Mills Oakley Lawyers ORDERS
SYG 2432 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THOMAS HALEY
Applicant
AND: LAING O'ROURKE AUSTRALIA MANAGEMENT SERVICES PTY LTD
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
3 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The applicant’s application for leave to file a further amended Form 2 in the form of the draft document headed “Amended Form 2” received by the Court Registry on 16 July 2021 is dismissed.
2.Paragraphs 2, 9, 10, 11, 12, 13, 14, and 15 of the notice to produce dated 27 April 2021 (Notice to Produce) served by the applicant on the respondent are set aside.
3.By 17 September 2021 the respondent produce to the applicant by electronic means a copy of such documents as are in its power or possession that fall within paragraphs 3, 4, 5, 6, 7, and 8 of the Notice to Produce.
4.The matter is listed for directions at 4:30 pm AEST on 24 September 2021.
THE COURT NOTES THAT
5.These orders are the orders of the Federal Circuit and Family Court of Australia (Division 2).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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
In these reasons for judgment I consider two questions. The first is whether I should grant the applicant, Mr Haley, leave to file a further amended Form 2 by which Mr Haley proposes to add Mr Chatwin as a respondent. The second question is whether I should set aside particular paragraphs of a notice to produce dated 27 April 2021 Mr Haley served on the respondent (LOA).
These reasons for judgment assume familiarity with my reasons for judgment I published on 19 February 2021 in which I set out the claims Mr Haley makes in this proceeding (earlier reasons).[1]
[1] Haley v Laing O'Rourke Australia Management Services Pty Ltd [2021] FCCA 257
PROCEDURAL HISTORY AFTER 19 FEBRUARY 2021
On 5 March 2021 I granted Mr Haley leave to file and serve an amended Form 2 (the Form 2) in which Mr Haley added a claim based on the Long Service Leave Act 1955 (NSW). In addition I ordered that LOA file and serve a response to the Form 2, Mr Haley file and serve a reply, if any, and for the parties to file and serve evidence.
Apart from the addition of a claim for long service leave, the Form 2, LOA’s response to that document, and Mr Haley’s reply to the response, have not altered or expanded the issues I identified in the earlier reasons. (In these reasons for judgment I will collectively refer to these documents as “pleadings”.) LOA continues to deny it summarily dismissed Mr Haley’s employment for any of the reasons Mr Haley alleges. LOA says it terminated Mr Haley’s employment “for the reasons set out in paragraphs 34(a) to (ba) herein and the further reasons set out in the letter dated 24 July 2020 from Mr Chatwin to [Mr Haley]”.[2]
[2] Response filed 30 March 2021, [50]
Mr Haley filed his evidence on 27 April 2021, and LOA filed its evidence on 28 June 2021, consisting of an affidavit made by Mr Chatwin.
PRORPOSED FURTHER AMENDED FORM 2
In the proposed further amended Form 2 Mr Haley seeks to make the following claims:[3]
(a)Mr Chatwin “breached” Mr Haley’s employment contract.
(b)Mr Chatwin contravened the National Employment Standards by allowing Mr Haley to work unsustainable hours while not allocating the resources Mr Haley needed to fulfil his duties.
(c)Mr Chatwin discriminated against Mr Haley due to his reward and job grade because other employees involved in the Incident (being the “Incident” I identify in my earlier reasons[4]) were not summarily dismissed.
(d)Mr Chatwin contravened the Fair Work Act 2009 (Cth) (FW Act) by, among other things, having aided, abetted, counselled or procured “the contraventions”, and by being involved in the contraventions.
[3] The proposed further amended Form 2 was received electronically by the Court Registry on 16 July 2021 and is headed “Amended Form 2”
[4] Haley v Laing O'Rourke Australia Management Services Pty Ltd [2021] FCCA 257, at [7]
Mr Haley does not allege Mr Chatwin was his employer; Mr Haley alleges, and it is accepted, that LOA was his employer. The claim that Mr Chatwin breached Mr Haley’s employment contract, and the claim that Mr Chatwin contravened a provision of the FW Act other than as a person involved in the contravention, are not arguable. For that reason, I will not grant Mr Haley leave to make any such claims.
A person who is not an employer may, however, be liable for an employer’s contravention of a provision of the FW Act if that person is a “person who is involved”, within the meaning of s 550(2) of the FW Act, with the employer’s contravention. That follows from s 550(1) of the FW Act which provides that a “person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision”. Under s 550(2) of the FW Act:
A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c)has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
Section 550 of the FW Act is “drawn in terms very similar to those of s.75B” of what was known as the Trade Practices Act 1974 (Cth) (TPA) but what is now the Competition and Consumer Act 2010 (Cth).[5] That means authorities that have expounded and construed s 75B of the TPA are relevant to the meaning of s 550 of the FW Act; and it is the case that the Federal Court of Australia has expounded and construed s 550 of the FW Act by reference to what has been said about s 75B of the TPA.[6] In that context it has been held that “the proper construction of par. (c) [of s 75B of the TPA) requires a party to a contravention to be an intentional participant, the necessary intent being based upon knowledge of the essential elements of the contravention”.[7]
[5] Dowling v Kirk & 16 Ors [2007] FMCA 2106, at [24] (Cameron FM, as his Honour then was, speaking of s 728 of the Workplace Relations Act 1996 (Cth) being the equivalent provision of s 550 of the FW Act).
[6] See, for example, Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034, at [950] (Katzmann J)
[7] Yorke v Lucas (1985) 158 CLR 661, at page 670
There are certain procedural requirements that must be met before a person (claimant) can be allowed to allege that a person (respondent) was involved in another’s contravention of a civil remedy provision of the FW Act because that person is a “person who is involved in a contravention”. The minimum requirements are that the claimant must specify the facts it is alleged constitute the contravention in question (contravening conduct), facts it is alleged constitute the respondent’s involvement in the contravening conduct, and the facts and matters on which the claimant relies for alleging the respondent knew of the facts that constitute the contravening conduct. That part of the proposed further amended Form 2 that alleges Mr Chatwin was involved in LOA’s contraventions does not satisfy these requirements. It does not identify, or sufficiently identify, the facts Mr Haley alleges constitutes LOA’s contravening conduct in which it is alleged Mr Chatwin was involved or the manner or extent it is alleged he was so involved; and it does not identify, or at least sufficiently identify, the acts on which Mr Haley relies for claiming Mr Chatwin had knowledge of the facts that constitute the contravening conduct.
I therefore propose to dismiss Mr Haley’s application for leave to file the proposed further amended Form 2. This will not prevent Mr Haley from reformulating the proposed further amended Form 2, and apply for leave to file such reformulated document. Mr Haley should, however, consider whether there would be any legitimate forensic reason in his attempting to reformulate his proposed further amended Form 2.
NOTICE TO PRODUCE
Before I identify the paragraphs of the notice to produce that are in dispute, it will be useful if I refer to the well-known principles that apply when a party seeks to set aside a notice to produce. They are the same as the principles that apply to the setting aside of a subpoena:[8]
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.
[8] Wong v Sklavos [2014] FCAFC 120, at [12] (references omitted)
Subpoenas and, therefore, notices to produce, must not be used as a substitute for discovery. That rule, however, does not require that the subpoena or notice to produce 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:[9]
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”.
[9] 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:[10]
[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.
[10] Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corp Ltd [1984] 1 NSWLR 710, at pages 718 and pages 720-721
Paragraph 1 of the notice to produce
Paragraph 1 of the notice to produce calls for the production of “[t]he Applicant’s employment file including any and all information relating to regarding [sic] remuneration assessments, performance reviews and personal development plans”. LOA has agreed to produce these documents and there is, therefore, no need to make any order in relation to this paragraph.
Paragraph 2 of the notice to produce
Paragraph 2 of the notice to produce calls for the production of:
[a]ny and all emails which include the Applicant’s name, where the Applicant is not the sender and is not included on the distribution, in the date range from 01 January 2020 to 31 March 2021.
LOA objects to the production of documents falling within paragraph 2 of the notice to produce on two related grounds. The first is that the documents are not restricted by a subject that relates to any issue in the proceeding. The second is oppression.
In his written submissions filed on 4 August 2021 Mr Haley identifies at least five subjects in relation to which Mr Haley submits the documents called for by paragraph 2 of the notice to produce are or may be relevant. Even if it is assumed all of the subjects Mr Haley identifies are relevant, paragraph 2 of the notice to produce calls for documents that would extend beyond those subjects. Further, at least some of the subjects Mr Haley identifies may be stated too broadly. The passages from Spencer Motors and Southern Pacific Hotel Services Inc I have reproduced above should serve as a guide to the manner in which a notice to produce or subpoena should describe documents required to be produced. The principal requirement is that the documents are described as relating or referring to issues that can readily be identified from the pleadings or affidavits the parties have filed.
Paragraph 2 of the notice to produce should therefore be set aside, because it calls for documents beyond those that can reasonably be considered to be relevant or apparently relevant to any issue in the proceeding.
Paragraph 3 of the notice to produce
Paragraph 3 of the notice to produce calls for the production of “[a]ny and all documents created for the purpose of the investigation into the alleged complaint received on 03 July 2020 and which led to my termination on 24 July 2020”. Mr Haley accepts LOA has in part complied with this part of the notice to produce; but he submits there has been incomplete production. In particular, he submits LOA has failed to produce documents that identify the persons to whom the investigation report was sent; although LOA has disclosed the email from Ms Woodford sent on 3 July 2020 (being the email at pages 32-33 of exhibit STC-1 to the affidavit of Mr Chatwin), LOA has not produced the actual complaint; and Mr Haley identifies a large number of subjects relating to the investigation which he submits ought to have been produced. LOA, on the other hand, submits Mr Haley has not established any reasons why it is necessary to obtain disclosure of additional materials concerning the investigation.
To determine whether this category of documents is relevant, it is necessary, first, to identify the relevance of the investigation to Mr Haley’s claims. In the Form 2 Mr Haley makes a number of allegations about the events leading to and in connection with the investigation. These are principally made in paragraphs 12 to 19 of the Form 2. Of particular relevance is paragraph 18 of the Form 2 in which Mr Haley sets out what he alleges occurred during the Incident. In its response LOA asserts a number of facts, but otherwise denies the allegations. This raises as an issue, at least on the pleadings, about what occurred during the Incident. Paragraph 3 of the notice to produce, therefore, is relevant to the extent it calls for documents that refer or relate to the Incident.
Mr Haley also makes claims in relation to LOA’s decision to terminate his employment. Mr Haley alleges LOA was not entitled to summarily dismiss him; and that LOA dismissed him because he had made a number of complaints. LOA denies these allegations. These allegations and denials raise as an issue two things: the actual circumstances that led LOA to terminate Mr Haley’s employment; and the reasons for which LOA terminated Mr Haley’s employment. Paragraph 3 of the notice to produce goes no further than calling for documents that relate to these two issues.
LOA submits that documents recording the distribution of the investigation report are not relevant to any issue. [11] I do not accept that submission. LOA alleges that Mr Chatwin was the person who decided to terminate Mr Haley’s employment, and that he did so at least in part on the basis of the investigation report. Mr Haley is not bound to accept that allegation. Documents that show the investigation report went to other officers of LOA before Mr Chatwin decided to terminate Mr Haley’s employment are apparently relevant to whether Mr Chatwin alone decided to terminate Mr Haley’s employment, and whether he did so on the basis of the matters Mr Chatwin, in his affidavit, says he did.
[11] Respondent’s Submissions in Relation to The Applicant’s Notice to Produce Dated 27 April 2021 (LOA’s Submissions), [23(a)]
LOA submits there is no substance to Mr Haley’s submission that “the direct complaint from the complainants is missing”.[12] The basis of this submission is that the complaint has been provided to Mr Haley. If that is the case, there will be nothing to produce. Mr Haley’s submission, however, appears to be based on Ms Woodford’s email of 3 July 2020 having copied a text message from one of the complainants, suggesting there is a separate document. If there is a separate document or documents they ought to be produced.
[12] LOA’s Submissions, [23(b)]
LOA also submits that paragraph 3 of the notice to produce calls for documents in relation to which LOA claims legal professional privilege. LOA is entitled to resist production on that ground; but it is obliged to identify any privileged document or documents that fall within paragraph 3 of the notice to produce and identify the grounds on which LOA claims the document or documents is or are privileged.
Finally, LOA submits that the manner in which LOA investigated and resolved the allegations against Mr Haley “are comprehensively dealt with in the investigation report”. That may or may not prove to be the case; but Mr Haley is not bound to accept it is the case; and even if it is found to be the case that leaves as an issue for determination the reason or reasons for which LOA terminated Mr Haley’s employment.
LOA, therefore, must produce, to the extent it has not already done so, documents that answer paragraph 3 of the notice to produce.
Paragraph 4 of the notice to produce
Paragraph 4 of the notice to produce calls for the production of “[a]ny and all emails relating to the investigation, the incident or the disciplinary process between 03 July 2020 and 31 December 2020”. To the extent it has not done so, LOA is liable to produce documents that fall within paragraph 4 of the notice to produce for the reasons I have given for concluding LOA must produce documents that fall within paragraph 3 of the notice to produce.
Paragraph 5 of the notice to produce
Paragraph 5 of the notice to produce calls for the production of the complaint LOA received from the complainants in relation to the Incident, and all correspondence between LOA and the complainants, and evidence how the complaint was finally resolved. To the extent it has not done so, LOA is liable to produce documents that fall within paragraph 5 of the notice to produce for the reasons I have given for concluding LOA must produce documents that fall within paragraph 3 of the notice to produce.
Paragraph 6 of the notice to produce
Paragraph 6 of the notice to produce calls for the production of Ms Woodford’s email of 3 July 2020 to which I have already referred and “any emails sent in reply or forwarded to any other address (to include the full extent of any email chains)”. To the extent it has not done so, LOA is liable to produce documents that fall within paragraph 6 of the notice to produce for the reasons I have given for concluding LOA must produce documents that fall within paragraph 3 of the notice to produce, but only to the extent the documents fall within paragraph 3 of the notice to produce.
Paragraph 7 of the notice to produce
Paragraph 7 of the notice to produce calls for the production of all emails “referenced in the amended application (08 March 2021), the amended response (26 March 2021) and the reply (06 April 2021)”. These documents should be produced to the extent they are in LOA’s possession or control.
Paragraph 8 of the notice to produce
Paragraph 8 of the notice to produce calls for the production of all emails sent by a Ms Renes in relation to the investigation of the Incident between 6 July 2020 and 10 July 2020. It is apparent that Ms Renes was one of the persons present during the Incident.[13] That by itself renders relevant or apparently relevant the documents called for by paragraph 8 of the notice to produce.
[13] Exhibit STC-1, page 49
Mr Haley submits these documents are relevant for a number of reasons. LOA submits that one of those reasons rely on what it submits are scandalous allegations. I do not need to consider that question at this stage because I have concluded that the documents refer or relate to the investigation of the Incident which, for the reasons I have already given, are relevant to the issues on the pleadings.
LOA also submits it no longer employs Ms Renes. That is not a reason for not producing documents in LOA’s power or possession that fall within paragraph 8 of the notice to produce.
LOA must produce documents in its possession or power that fall within paragraph 8 of the notice to produce.
Paragraph 9 of the notice to produce
Paragraph 9 of the notice to produce calls for the production of “[a]ny and all information and records etc relating to human capital investigations conducted between 01 April 2019 and 31 March 2021”. In his written submissions Mr Haley says that the subject matter of this request is “disciplinary investigations”. Mr Haley submits these documents are relevant to paragraphs 36 and 52(a) of the Form 2 in which Mr Haley alleges the disciplinary proceeding LOA brought against him was designed to cause him and his family maximum distress and dislocation, as well as cause a maximum threat to his personal and professional reputation.
Paragraph 9 of the notice to produce calls for the production of documents relating to all investigations and, for that reason, calls for documents that include documents that cannot conceivably be relevant to any issue arising on the pleadings. I therefore propose to set aside paragraph 9 of the notice to produce.
Paragraph 10 of the notice to produce
Paragraph 10 of the notice to produce calls for the production of any and all information and records in relation to investigations and disciplinary action LOA has taken against five named persons, being the persons in relation to whom, in paragraphs 51, 55, 58, and 65 of the Form 2, Mr Haley alleges he made complaints. Mr Haley alleges these documents are relevant, first, because they relate to his making a complaint, and second, because LOA’s treatment of the complaints in relation to these employees is inconsistent with LOA’s alleged treatment of Mr Haley.
The documents called for by paragraph 10 of the notice to produce go beyond the issues raised by the claims made in paragraphs 51, 55, 58, and 65 of the Form 2. Mr Haley is not entitled to any documents other than those that refer or relate to the issues arising out of LOA’s response to those paragraphs. If Mr Haley is not satisfied LOA has produced documents that refer or relate to those issues, he may issue a further notice to produce reformulated to call for the production of documents that refer or relate to the issues arising from LOA’s response to the allegations made in paragraphs 51, 55, 58, and 65 of the Form 2.
I therefore propose to set aside paragraph 10 of the notice to produce.
Paragraph 11 of the notice to produce
Paragraph 11 of the notice to produce calls for the production of any and all information relating to complaints in relation to Mr Chatwin and two other employees “during their employment with” LOA.[14] Mr Haley submits these documents are relevant because they relate to the complaints paragraphs 56, 62, 63, and 64 of the Form 2 allege he made in relation to two of the three employees.
[14] Paragraph 11 of the notice to produce refers to a fourth person, but in his written submissions Mr Haley does not press paragraph 11 of the notice to produce in relation to this fourth person.
The documents called for by paragraph 11 of the notice to produce go beyond the issues raised by the claims made in paragraphs 56, 62, 63, and 64 of the Form 2. Mr Haley is not entitled to any documents other than those that refer or relate to the issues arising out of LOA’s response to those paragraphs. If Mr Haley is not satisfied LOA has produced documents that refer or relate to those issues, he may issue a further notice to produce reformulated to call for the production of documents that refer or relate to the issues arising from LOA’s response to the allegations made in paragraphs 56, 62, 63, and 64 of the Form 2.
I therefore propose to set aside paragraph 11 of the notice to produce.
Paragraph 12 of the notice to produce
Paragraph 12 of the notice to produce calls for the production of all emails between Mr Haley and Ms Crookes from 1 March 2020 to 30 April 2020. Mr Haley submits these documents are relevant to the allegations made in paragraphs 63, 64, and 68.b of the Form 2.
The documents called for by paragraph 12 of the notice to produce go beyond the issues raised by the claims made in paragraphs 63, 64, and 68.b of the Form 2. Mr Haley is not entitled to any documents other than those that refer or relate to the issues arising out of LOA’s response to those paragraphs. If Mr Haley is not satisfied LOA has produced documents that refer or relate to those issues, he may issue a further notice to produce reformulated to call for the production of documents that refer or relate to the issues arising from LOA’s response to the allegations made in paragraphs 63, 64, and 68.b of the Form 2.
I therefore propose to set aside paragraph 12 of the notice to produce.
Paragraph 13 of the notice to produce
Paragraph 13 of the notice to produce calls for the production of any emails between Mr Barrie, being one of the persons in relation to whom Mr Haley alleges he made a complaint, to others in LOA’s organisation relating to procurement on bushfires between 1 April 2020 and 30 June 2020 where Mr Haley is not included as part of the distribution. Mr Haley submits this is relevant to the allegations made in paragraph 62 of the Form 2.
The documents called for by paragraph 13 of the notice to produce go beyond the issues raised by the claims made in paragraph 62 of the Form 2. I have already noted that if Mr Haley is of the view LOA has not produced all documents that refer or relate to issues arising from LOA’s response to paragraphs in the Form 2 that include paragraph 62, he may issue a further notice to produce reformulated to call for the production of documents that refer or relate to the issues arising from LOA’s response to the allegation made in paragraph 62 of the Form 2.
I therefore propose to set aside paragraph 13 of the notice to produce.
Paragraph 14 of the notice to produce
Paragraph 14 of the notice to produce calls for the production of any emails between Mr Haley and Mr Chatwin from 1 February 2018 to 24 September 2018. Mr Haley submits these emails are relevant to the issue that arises from paragraph 4(c) of Mr Haley’s reply to LOA’s response to paragraph 4 of the Form 2. Mr Haley submits these documents are relevant to whether Mr Chatwin was aware of the commitment required by Mr Haley to come to Australia, this being a matter Mr Haley submits Mr Chatwin did not take into account when determining whether to terminate Mr Haley’s employment.
Paragraph 14 of the notice to produce calls for documents that go beyond their asserted relevance. I therefore propose to set aside paragraph 14 of the notice to produce.
Paragraph 15 of the notice to produce
Paragraph 15 of the notice to produce calls for the production of LOA’s “signed and approved “NSW Bushfire Cleanup Project Conditions” policy including any and all emails relating to this policy”. Mr Haley submits these documents are relevant to the allegations Mr Haley makes in paragraphs 53 and 86 of the Form 2. Mr Haley there claims LOA discriminated against him by not paying to him the “Project Conditions Allowance”, being a matter about which Mr Haley in paragraph 53 of the Form 2 alleges he complained about.
Paragraph 15 of the notice to produce calls for documents that go beyond their asserted relevance. If Mr Haley intends to seek the production of documents referring or relating to the issues raised by LOA’s response to the matters alleged in paragraphs 53 and 86 of the Form 2, he will need to limit the description to documents that refer or relate to those issues.
I therefore propose to set aside paragraph 15 of the notice to produce.
Paragraphs 16 and 17 of the notice to produce
LOA says it has produced the documents called for by these paragraphs of the notice to produce. There is no material before me on the basis of which I can find that LOA has not produced the documents called for by paragraphs 16 and 17 of the notice to produce. I therefore propose to make no orders in relation to these paragraphs of the notice to produce.
Paragraph 18 of the notice to produce
LOA says it has no documents that fall within paragraph 18 of the notice to produce. I therefore propose to make no order in relation to this paragraph of the notice to produce.
DISPOSITION
I propose to order that paragraphs 2, 9, 10, 11, 12, 13, 14, and 15 of the notice to produce be set aside, and that, by 17 September 2021, LOA produce to Mr Haley by electronic means a copy of such documents as are in its power or possession that fall within paragraphs 3, 4, 5, 6, 7, and 8 of the notice to produce.
I will also note in the orders I propose to make that the orders are those of the Federal Circuit and Family Court of Australia (Division 2). That is necessary because the seal of this Court that will be affixed to the orders I propose to make only includes the words “Federal Circuit and Family Court of Australia”; and the approved form of order will represent that the orders are those of the “Federal Circuit and Family Court of Australia”. The Federal Circuit and Family Court of Australia Act 2021 (Cth) (Act), however, does not constitute any court by the name of the “Federal Circuit and Family Court of Australia”. Section 8 of the Act continues the existence of two federal courts and renames them. The first federal court the Act continues is the Court that, before 1 September 2021, was named the “Family Court of Australia”, and s 8(1) renames that Court the “Federal Circuit and Family Court of Australia (Division 1)”. The second federal court the Act continues is this Court which, before 1 September 2021, was named the “Federal Circuit Court of Australia”, but which s 8(2) of the Act renames the “Federal Circuit and Family Court of Australia (Division 2)”.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 3 September 2021
2
5
4