Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 2)
[2021] FedCFamC2G 317
•3 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 2) [2021] FedCFamC2G 317
File number(s): SYG 2432 of 2020 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 3 December 2021 Catchwords: INDUSTRIAL LAW – PRACTICE AND PROCEDURE – Application for orders in relation to alleged failure by respondent to comply with notices to produce – application dismissed. Legislation: Evidence Act 1995 (Cth), ss 118, 119
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 14.02(2), 14.04, 16.16
Federal Circuit and Family Court of Australia Act 2021 (Cth), s 176(2)
Federal Circuit Court Rules 2001 (Cth), r 15A.17Cases cited: Haley v Laing O'Rourke Australia Management Services Pty Ltd [2021] FedCFamC2G 8 Division: Fair Work Number of paragraphs: 20 Date of hearing: 19 November 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 DECEMBER 2021
THE COURT ORDERS THAT:
1.The applicant’s application in a case filed on 16 November 2021 is dismissed.
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
By an application in a case filed on 16 November 2021 the applicant, Mr Haley, applies for various forms of relief in relation to what he claims is the failure by the respondent (LOA) to comply with paragraphs 1, 3, 4, 5, 6, and 7 of a notice to produce dated 27 April 2021 issued by Mr Haley (first NTP), and paragraphs 1, 2, 3, 4, 5, 6, 7, 8, and 10 of a notice to produce dated 7 September 2021, also issued by Mr Haley (second NTP). I have described paragraphs 1, 3, 4, 5, 6, and 7 of the first NTP in the reasons for judgment I published on 3 September 2021.[1]
[1] Haley v Laing O'Rourke Australia Management Services Pty Ltd [2021] FedCFamC2G 8
SOME PRINCIPLES
The first NTP was issued pursuant to r 15A.17 of the Federal Circuit Court Rules 2001 (Cth), and the second NTP was issued pursuant to its equivalent, r 16.16 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules). Rule 16.16 of the GFL Rules provides:
(1) A party may, by notice in writing, require another party to produce, at the hearing of the proceeding, a specified document that is in the possession, custody or control of the other party.
(2) Unless the Court otherwise orders, the party given notice to produce must produce the document at the hearing.
The source of a party’s obligation to comply with a notice to produce that is validly given under r 16.16 of the GFL Rules is the rule itself. If the Court is satisfied a party has not complied with a notice to produce, it would be open to the Court to make an order under r 14.04 of the GFL Rules, which provides that the Court may order a party to a proceeding to produce to it a document in the possession, custody, or control of the party. Thus, where a party who gives a notice to produce to another party contends the other party has not complied with it, the remedy such party must seek is an order for production.
What, then, would the Court be required to do when confronted with a contention that a party has not complied with a notice to produce? First, the Court would have to consider the grounds on which it is contended the party has not produced documents that fall within the terms of the notice to produce. If the Court is not satisfied the recipient of the notice to produce has not complied with the notice to produce, that would be the end of the matter. If, on the other hand, the Court is satisfied there are documents or classes of documents in the possession of the party to whom the notice to produce has been given which have not been produced, the Court will make an order that the documents be produced. There is another possibility; and this will arise where there is reason to believe the party to whom the notice to produce has been given may have documents which the party has not produced. In that circumstance, it may be appropriate to make a declaration under s 176(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) that it is appropriate, in the interest of the administration of justice, to allow discovery, and then make an order for disclosure under r 14.02(2) of the GFL Rules.
DOCUMENTS MR HALEY CLAIMS LOA HAS NOT PRODUCED
Mr Haley has identified the documents or classes of documents he claims LOA has in its possession, but which it has not produced, in an affidavit made on 12 November 2021. It would be convenient if I identify those documents by reference to the correspondence that is attached to Mr Haley’s affidavit. This will not only serve to identify the relevant documents; it will also reveal the grounds on which Mr Haley relies for contending LOA has such documents.
15 and 16 October 2021 – emails from Mr Haley to LOA’s lawyer
In an email sent on 15 October 2021 Mr Haley requested Mills Oakley (MO), LOA’s lawyers, provide a version of the performance review from the “Success Factors system which will show the date that the Manager’s Comments were added and when the performance review was signed off as completed”, noting that these “can be provided as snapshots directly from the system”. Mr Haley also requested that Mr Barrie swear an affidavit that the manager’s comments are his own, and were made on or around the date of the performance review. Mr Haley asserted that “information and records are still missing from the employment file provided”.
On 16 October 2021 Mr Haley sent an email to MO stating there is “information” missing from documents LOA’s lawyer provided in a DropBox folder, namely, information recording Mr Barrie having added comments to Mr Haley’s performance review, and information recording confirmation that Mr Haley’s performance review had been completed.
These two emails relate to the documents called for by paragraph 1 of the first NTP, being Mr Haley’s “employment file including any and all information relating to regarding [sic] remuneration assessments, performance reviews and personal development plans”. LOA had agreed to produce these documents.
29 October 2021 – MO sends letter to Mr Haley
By letter dated 29 October 2021 MO informed Mr Haley that MO produced, via the identified DropBox secure links, documents in answer to the first NTP (with the exception of documents falling within paragraph 1), and the second NTP dated 7 September 2021. MO stated that LOA claims privilege over 82 documents on the grounds of s 118 and s 119 of the Evidence Act 1995 (Cth).
31 October 2021 – Mr Haley sends letter to MO
In a letter sent on 31 October 2021 to MO, Mr Haley raised a number of matters.
(a)Mr Haley claimed the “production of documents has not been completed with sufficient care and attention”. Mr Haley stated the labelling in the first DropBox folder is inconsistent, one of the documents was password protected, and there appeared to be a substantial number of duplicated documents. Mr Haley made a number of demands to remedy these claimed deficiencies.
(b)Mr Haley claimed MO did not identify, or sufficiently identify, the documents over which LOA claimed legal professional privilege.
(c)Mr Haley claimed that the separate document to which I refer in paragraph 25 (in fact paragraph 24) of my earlier reasons has not been produced.
(d)Mr Haley referred to emails he identified in Schedule 2 to his letter which he claimed are irregular because they have been sent by persons to themselves, copying emails to themselves, and inviting themselves to their own meetings. Mr Haley demanded that LOA “produce these documents with the email addresses shown on these documents, and should include the email addresses of any recipients who were “bcc” (blind copied) to the emails”.
(e)Mr Haley claimed that the documents MO produced in answer to the first NTP contain some, but not all, calendar invitations to Microsoft Teams meetings sent to Microsoft Outlook accounts. Mr Haley demanded LOA produce all such meeting invitations.
(f)Mr Haley demanded that an affidavit be produced by the person or persons responsible “for discovering the documents on behalf of” LOA.
5 November 2021 – MO sends letter to Mr Haley
By letter sent on 5 November 2021 MO responded to Mr Haley’s letter dated 29 October 2021. MO stated as follows:
(a)LOA was under no obligation to attend to the document management requests Mr Haley made; and it was under no obligation to provide the affidavit Mr Haley demanded.
(b)On 29 October 2021 MO provided to Mr Haley an accessible version of the password-protected document.
(c)MO had produced to Mr Haley a copy of the direct complaint, noting that LOA “has produced all the documents which are within its possession and control and which are not subject to privilege”.
(d)The emails Mr Haley claimed are irregular are not so because they contain draft documents; and in any event, whether irregular or not, it is of no consequence to the proceeding, and production is irrelevant.
(e)LOA has produced all documents in relation to Microsoft Teams meeting invitations.
MO also identified in a list each of the 82 documents in relation to which LOA claims legal professional privilege. The list identifies emails between, among other people, Mr Simon Barrett and Ms Annabel Crookes. MO’s letter states that Ms Crookes is the Legal Director at LOA, and Mr Barrett is the Head of Legal at LOA.
7 November 2021 – Mr Haley sends letter to MO
In a letter sent to MO on 7 November 2021, Mr Haley stated as follows:
(a)The manner in which MO uploaded the documents have made it difficult for Mr Haley to reconcile the documents with each other.
(b)Under the heading “Irregular Emails”, Mr Haley referred to the names of two persons Mr Haley claimed the documents suggest were or may have been involved in the investigations that led to LOA’s decision to terminate Mr Haley’s employment. Mr Haley repeated the demand he previously made for the production of documents in relation to what Mr Haley identified as “irregular emails”.
(c)A number of the documents MO in its letter of 5 November 2021 listed as privileged have not been demonstrated to be subject to privilege. Mr Haley identified an email between Mr Daniel Sleeman and Mr Dane Bates (neither of whom MO claimed is a lawyer). Mr Haley also stated that the emails between Mr Simon Barrett and Ms Annabel Crookes are not privileged. Mr Haley relies on a number of grounds. One is that Ms Crookes and Mr Barrett are in-house lawyers and, therefore, to the extent they have given any advice, it would not have been independent. Another ground is that, in its letter dated 21 July 2020 by which LOA terminated Mr Haley’s employment, LOA claimed that every document created for the purpose of the investigation that led to LOA’s decision to terminate Mr Haley’s employment is subject to legal professional privilege”.
(d)LOA has not produced all Microsoft Teams meeting invitations.
(e)In an affidavit made on 23 September 2021, Ms Elakis, a lawyer at MO deposed that LOA would have to access and search 20 to 30 email accounts and data repositories; the actual search, however, was limited to three custodians; the documents produced “are not a complete set” and raise concerns that evidence has been potentially falsified; and the discovery is limited up to but not beyond August 2020. Mr Haley demanded an affidavit describing the process by which the documents have been discovered.
(f)LOA has not produced documents that fall within paragraph 1 of the first NTP. Mr Haley identified the documents that he claims LOA has not produced in Schedule B to Mr Haley’s letter. The basis of that claim is the assertion that the LOA’s HR system, called “Success Factors”, contains Mr Haley’s full employment file, and LOA has chosen not to download documents from this system.
(g)In relation to paragraph 3 of the first NTP, which calls for the production of documents created for the purpose of the investigation into the alleged complaint that led to Mr Haley’s termination, Mr Haley referred to an email produced by LOA dated 10 July 2020 in which Mr Simon Barrett requests, and a Mr Murray Curnow-Rose approves, access to the folder and file location “E:\NSW Bushfire Cleanup\2020.07.03 – Commercial House Party”. Mr Haley asserted that this folder “contains all records which the Respondent’s Group Investigation Guidelines state that the respondent should store for access as required by law (p.206 of STC-1 filed on 28 June 2020)”. Mr Haley further stated that the names of personnel who have access rights to the file have not been disclosed.
(h)In relation to paragraph 4 of the first NTP, which calls for the production of all emails relating to the investigation, the incident, or the disciplinary process between 3 July 2020 and 31 December 2020, Mr Haley noted that LOA has produced 232 labelled documents and 263 labelled attachments. Mr Haley then asked 29 questions. Some of these relate to the existence of documents; but most seek information Mr Haley has listed in Schedule C to his letter emails LOA has produced; he states the effect of all or part of each email; and then identifies “missing evidence”. Some of the “missing evidence” purports to be documents identified in the email, but most of the “missing evidence” is documents Mr Haley asserts should exist.
(i)Mr Haley made two points about paragraph 5 of the first NTP, which calls for the production of the complaint received by Mr and Ms P, and all correspondence between LOA and Mr and Ms P about how the complaint was resolved. The first point relates to an email from a person named Amy to Ms Woodford on 3 July 2020 recording Mr P’s version of events Ms P gave to Amy, and containing a screenshot of a text message Ms P sent to Amy. Mr Haley said the text message has not been produced. Second, Mr Haley asserted Ms Woodford prepared an email in which she has selected parts of Amy’s email, and made a number of material changes to it. Mr Haley claimed LOA has not produced any documents that explain these changes.
(j)In relation to paragraph 6 of the first NTP, which calls for the production of Ms Woodford’s email of 3 July 2020 relating to the incident in question, and any emails sent in reply, Mr Haley accepted the email was produced. He referred, however, to having been sent a text message on 7 July 2020 from Mr Barker, laughing at Mr Haley’s suspension. Mr Haley stated the documents produced do not reveal how Mr Barker came to know this.
(k)In relation to paragraph 7 of the first NTP Mr Haley accepted LOA has produced 235 documents, but complained they have not been labelled.
(l)In relation to paragraph 8 of the first NTP Mr Haley stated that no documents have been produced.
(m)In relation to the second NTP Mr Haley either stated there are no documents in relation to the particular paragraphs he identified, or he asserted a number of matters and stated that no documents in relation to those matters have been produced.
18 November 2021 – MO responds to Mr Haley’s letter of 7 November 2021
MO responded to Mr Haley's letter by letter dated 18 November 2021. MO stated that LOA has complied with the Court’s orders, and it has no other documents to produce. The letter then responded to particular matters raised by Mr Haley in his letter dated 7 November 2021. MO did not respond, however, point by point to each of the matters Mr Hayley raised. That is understandable, given the length of the matters to which Mr Haley referred. MO instead responded with the following:
In relation to your remaining complaints regarding the first and second notices to produce, the Respondent has considered those matters and confirms that it has produced all documents which are within its possession and control, and which are not protected by legal professional privilege, for the time periods covered by the notices to produce (including, where applicable, up to 31 December 2021). In the instances where no documents have been produced in relation to particular topics covered in the notices to produce, that is because there are no documents responsive to those parts of the notices to produce that are in our client’s possession or control.
DETERMINATION
I have no doubt that Mr Haley believes that LOA has not produced all documents called for by the relevant paragraphs of the first and second NTPs. A substantial basis of his belief is Mr Haley’s expectation that documents should exist in relation to events or matters that are recorded in the documents LOA has produced. It may be that in particular circumstances an inference may be drawn that there is a document or class of documents in a party’s possession or control which the party has not produced. I am not prepared to find, however, that LOA possesses, or that there are reasonable grounds for suspecting that LOA possesses, any of the documents Mr Haley believes LOA possesses, but which he asserts LOA has not produced.
First, the matters on which Mr Haley relies for claiming LOA has not produced documents are not sufficiently probative to support a finding that LOA has not produced documents in its possession or control that answer any one or more of the relevant paragraphs of the first and second NTPs; and that is because, at least in many cases, Mr Haley simply asserts that documents of the sort he identifies LOA has not produced do exist or should have existed. This is illustrated by the following examples from Schedule C to Mr Haley’s letter dated 7 November 2021:
Doc Ref
Date
Time
Summary
Missing Evidence
31
03 July 2020
16:57
Email from Michelle Salisbury with a witness list
Evidence confirming how this witness list was generated has not been produced
STC-1
03 July 2020
17:01
Murray Curnow-Rose call with David Field
Evidence documenting the record of this call is missing
107
07 July 2020
11:18
Jeff McAuliffe forwards an email to Murray Curnow-Rose which he received from Janelle Renes (citing concerns about Rob Pointon’s character). It is recommended to discuss this with Chris Stafford (Laing O’Rourke employee)
The documents produced do not identify who this email was sent to by Murray Curnow-Rose, why this information was not followed up, and why Chris Stafford was not interviewed
136
08 July 2020
15:10
I send [sic] a copy of a picture confirming bruising to my lower back
The documents produced do not identify whether this information was seen by anyone else and why this information was ignored in the investigation process
47
16 July 2020
10:50
Meeting between Dane Bates, Murray Curnow-Rose and Daniel Sleeman
Notes from this meeting are missing from the documents produced
22
22 July 2020
22:35
Daniel Sleeman prepares “rough notes” of the show cause meeting are sent to Daniel Sleeman
The transmittal of the meeting recording to Daniel Sleeman is missing from the documents produced
Why did Daniel Sleeman prepare these notes – who made the request and who were these “rough notes” shared with.
220
24 July 2020
09:54
Daniel Sleeman sends a draft termination letter for Shaun Boyle to Dane Bates, copy to Daniel Sleeman
The Respondent took a decision not to terminate Shaun Boyle’s employment.
The reasons for this decision change and who made the change is not produced in the documents produced.
91
24 July 2020
17:09
Simon Chatwin sends termination letter to me
The reason that the termination is sent by Simon Chatwin rather than Paul Barrie (my line manager) is missing from the documents produced
2
25 July 2020
09:53
Daniel Sleeman emails Shaun Boyle’s warning letter and confirms this will be sent by Laing O’Rourke Australia Pty Ltd
There is no record confirming why this was send [sic] by this entity on the documents produced
215
25 July 2020
09:59
Daniel Sleeman emails Shane Neely’s warning letter and confirms this will be sent by Laing O’Rourke Australia Pty Ltd
There is no record confirming why this was send [sic] by this entity on the documents produced
Second, LOA has produced a large number of documents, and there is nothing in the material before me that suggests that LOA has sought not to produce any particular class of documents, or documents that relate to any particular issue.
Third, LOA has engaged with the requirements of the first and second NTPs through its lawyers, MO, who, through correspondence with Mr Haley tendered at the hearing of this application, and through LOA’s counsel, have represented to this Court that, except for the 82 documents over which LOA has claimed legal professional privilege, LOA has produced documents in its possession that answer the relevant paragraphs of the first and second NTPs. Not to accept truth of that representation would at the very least require me to doubt that MO have not advised LOA of its obligations in relation to the production of documents, and they have not satisfied themselves that LOA has complied with those obligations. There is nothing that leads me to doubt that MO has explained to LOA its obligations in relation to the first and second NTPs, and that MO has satisfied itself that LOA has understood and complied with those obligations.
Finally, I refer to LOA’s claim for legal professional privilege. LOA has not asserted that claim on the basis of an affidavit; but if a responsible officer of LOA were to swear an affidavit deposing to the truth of the grounds MO communicated to Mr Haley on which LOA claims privilege, the claim for privilege, without more, would be upheld. In those circumstances, I do not see any utility in requiring LOA to file an affidavit. That will not prevent Mr Haley, however, from challenging the claim for privilege on some ground other than on the adequacy of the description of the grounds on which LOA has claimed privilege.
DISPOSITION
I propose to order that Mr Haley’s application filed on 16 November 2021 be dismissed.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Dated: 3 December 2021
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