Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 4)
[2022] FedCFamC2G 743
•6 September 2022
Federal Circuit and Family Court of Australia
(DIVISION 2)
Haley v Laing O’Rourke Australia Management Services Pty Ltd (No 4) [2022] FedCFamC2G 743
File number(s): SYG 2432 of 2020 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 6 September 2022 Catchwords: INDUSTRIAL LAW – Practice and procedure – application by applicant for leave to issue 13 subpoenas to give evidence against current or former employees of the respondent – whether there is a legitimate forensic purpose to the applicant’s applying for the issue of the subpoenas – whether granting the applicant leave to have issued the subpoenas inconsistent with the overarching purpose mandated by s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – application dismissed. Legislation: Evidence Act 1995 (Cth) s 38
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 16.01, 16.04(1), 16.08
Cases cited: Attorney General for New South Wales v Chidgey [2008] NSWCCA 65
Comcare v John Holland Rail Pty Ltd (No 5) (2011) 195 FCR 43; [2011] FCA 622
Haley v Laing O'Rourke Australia Management Services Pty Ltd [2021] FCCA 257
Jones v Dunkel (1959) 101 CLR 298
R v Baines [1909] 1 KB 258
Witness v Marsden [2000] NSWCA 52
Wong v Sklavos [2014] FCAFC 120
Division: Fair Work Number of paragraphs: 38 Date of last submission/s: 19 August 2022 Date of hearing: 12 August 2022 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:
6 September 2022
THE COURT ORDERS THAT:
1.The applicant’s application in a proceeding filed on 21 July 2022 is dismissed.
2.By a time to be fixed at the directions hearing referred to in order 3 the respondent file and serve an indexed and paginated court book (in hard copy and electronic form), the index to which is to indicate whether any document in the court book is the subject of an objection by either party.
3.The proceeding is listed for a directions hearing at 4:30 pm AEST on 9 September 2022, such directions hearing to proceed by telephone.
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
The applicant, Mr Haley, applies for leave to apply for the issue of subpoenas to 13 persons (proposed witnesses) to give evidence at the hearing that has been set down to commence on 19 September 2022. Each of the proposed witnesses is or was an employee of the respondent (LOA).
LOA opposes leave being granted principally because it submits Mr Haley has not demonstrated there is any legitimate forensic purpose to the subpoenas being issued to any of the proposed witnesses; and, in any event, to permit the issuing of the subpoenas would be contrary to the overarching purpose mandated by s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFC Act).
principles for issuing or setting aside sUBPOENAS
Mr Haley applies for the issue of subpoenas to give evidence. That class of subpoena is also called a “subpoena ad testificandum”, and is to be distinguished from a “subpoena duces tecum” - a subpoena to produce documents.
This Court has power under r 16.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) to issue a subpoena to give evidence at the request of a party. A party usually makes such request by completing a prescribed form of subpoena and filing it with the Court. The Court usually issues the subpoena without any order of a Judge or a Registrar; and it is issued by staff at the Court’s Registry accepting for filing a completed form of subpoena and recording on it the place at which and the time and day on which the person to whom the subpoena is addressed must attend to give evidence.
Even though a subpoena is usually issued by the Court on the application of a party without any order authorising its issue, the Court has power under r 16.08 of the GFL Rules to set aside a subpoena that has been issued. There are many authorities that identify the principles for setting aside subpoenas for production. The Full Federal Court stated those principles in Wong v Sklavos as follows (emphasis added):[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: Santos Ltd v Pipelines Authority of South Australia (1996) 66 SASR 38 at 52. 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: Trade Practice Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90; Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) [2010] FCA 398; (2010) 269 ALR 76 at [39]-[40]; McHugh v Australian Jockey Club Limited[No 2] [2011] FCA 724 at [13]; McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233; (2005) 221 ALR 785 at [35]; Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 558 at [17]. 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 (R v Barton (1981) 2 NSWLR 414 at 420), or that the material sought is reasonably likely to add in some way to the relevant evidence in the case (Spencer Motors Pty Ltd v LNC Industries Ltd (1982) 2 NSWLR 921 at 927), or that it be “on the cards” that the documents sought will materially assist the party at whose request the subpoena has been issued: Allister v The Queen (1984) 154 CLR 404 at 414; Tamawood Ltd v Habitare Developments Pty Ltd [2009] FCA 364 at [13], [35]-[38].
[1] Wong v Sklavos [2014] FCAFC 120, at [12]
There are some authorities, however, that have also considered the circumstances in which a court may set aside a subpoena to give evidence. Heydon JA (as his Honour then was) referred to a number of these in Witness v Marsden, and noted the “authorities indicate that there are numerous circumstances in which the recipient of a subpoena ad testificandum, or equivalent process, can move to have it set aside”.[2] One of those cases is R v Baines,[3] where, in a criminal trial, persons on whom subpoenas to give evidence had been issued successfully obtained an order setting aside the subpoenas on the ground that the subpoenas were not issued in good faith for the purpose of the persons against whom they were issued giving relevant evidence. Bigham J said (emphasis added):[4]
There can be no doubt as to the jurisdiction of the Court to interfere where it is satisfied that its process is being used for indirect or improper objects. It must not be supposed that the position which the applicants occupy [one was Prime Minister, H H Asquith, and the other Home Secretary, H J Gladstone] affords them any privilege. They stand in the same position as any other of His Majesty’s subjects. But the Court has to inquire whether its process has been issued against them with the object and expectation on reasonable grounds of obtaining from them evidence which can be relevant. . . . We have before us the affidavits of the applicants, in which they both swear that they are wholly unable to give any evidence which can possibly be relevant to any issue which may arise. I believe that to be true. Therefore it would be an idle waste of time and money to require them to go down to Leeds to give evidence. The applicants further say that no application has been made to them by the defendants for any proof of the evidence to be given by them. That statement satisfies me that this process has not been issued for the simple and proper purpose of obtaining evidence, but for a different and ulterior purpose, a purpose to which the process of this Court ought not to be applied.
[2] Witness v Marsden [2000] NSWCA 52, at [60]
[3] R v Baines [1909] 1 KB 258, at page 261
[4] R v Baines [1909] 1 KB 258, at page 261
These passages might be read as suggesting that it will be sufficient to establish a legitimate forensic purpose if the person who has applied for the issue of the subpoena shows that the documents called for by the subpoena, or the evidence the person against whom the subpoena has been issued is expected to give, are likely to be relevant to any material fact in issue in the proceeding in which the subpoena has been issued. That, however, would not be correct.
Parties apply for the issue of a subpoena in the context of adversarial litigation where each party is responsible for adducing evidence to prove facts in relation to which he or she bears the burden of proof, and to contradict or undermine evidence the other party has adduced or may adduce. A subpoena will be issued for a legitimate forensic purpose only to the extent it can be shown that there is a sufficient prospect the subpoena will bring before a court documents or testimony that not only may be relevant to a fact in issue, but may be relevant in a way that may assist the case of the party who applies for the issue of the subpoena, either by providing evidence that may assist the party to prove facts the party has the burden of proving, or that may assist the party to contradict or undermine evidence the other party will or may adduce.
What I say in the preceding paragraph is supported by the emphasised portion of the passage from the judgment in Sklavos reproduced above. It is also supported by the judgment of Beazley JA in Attorney General for New South Wales v Chidgey:[5]
[5] Attorney General for New South Wales v Chidgey [2008] NSWCCA 65, at [59], [60], [63], [64] (my emphasis at [60])
It is not sufficient for a party seeking production of documents to merely establish that such documents are or may be relevant. This is apparent from the comments of Mahoney AP in Carroll v Attorney-General for New South Wales (1993) 70 A Crim R 162. In that case, Mahoney AP was concerned with the question whether access should be given to certain documents that had been subpoenaed in criminal proceedings. His Honour said, at 181:
“… the court must, in general, be satisfied that the documents are relevant to an issue for decision by the court in the litigation. It is not open to a party, as on a ‘fishing expedition’, to subpoena documents merely in order to determine whether they may be relevant and may be of assistance to his case in the proceeding.” (Emphasis added)
His Honour stated, at 182, that whilst a party must show, or it must appear, that the subpoenaed documents are relevant to an issue in the proceedings, “mere relevance is not enough”. His Honour continued:
“In the case in which the party did not know what was the nature or the contents of the documents, the position would be plain. He could not claim to look at the documents merely to see whether they contained something which might be relevant or help his case. But in this case it is accepted that the documents are affidavits directed to showing ‘that there are reasonable grounds for’ the ‘suspicion or belief’ referred to in s 16(1). Accordingly, prima facie the documents are relevant to the issue to be decided, viz, whether there was in fact no material that could reasonably justify the relevant belief. But, in my opinion, it is not sufficient for a party subpoenaing the document to say ‘the document is relevant because, if it does anything, it establishes the case against me’. He must be able to indicate that the document is relevant in the sense that it may assist his case. In the present case, that could not be claimed. Nor was it shown. At best, the claim was: ‘I wish to see the document to see if it may assist my case.’ That, in my opinion, is not sufficient.”
. . . .
But in any event (and contrary to the respondent’s submissions) the statement of Mahoney AP has been applied in subsequent decisions in New South Wales and Victoria: see Propend Finance Pty Ltd v Commissioner of the Australian Federal Police (1994) 72 A Crim R 278 at 282-283; Bruce Harvey v State of New South Wales (Supreme Court of New South Wales, per Johnson J at 3-4, 15 June 2005, unreported); R v Robinson (1996) 89 A Crim R 42 at 61; Gardiner v Regina [2006] NSWCCA 190; (2006) 162 A Crim R 233 at [88]; and Re Don [2006] NSWSC 1125 at [6].
The test for determining whether a party is required to produce documents pursuant to a subpoena was stated by Simpson J (Spigelman CJ and Studdert J agreeing) in Regina v Saleam [1999] NSWCCA 86 at [11], in the following terms:
“The principles governing applications [for an order that documents not be produced] are no different from those governing applications for access to documents produced in answer to a subpoena. Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is ‘on the cards’ that the documents will materially assist his case. So much was established in earlier proceedings brought by this applicant: R v Saleam (1989) 16 NSWLR 14, per Hunt CJ at CL; see also R v Ali Tastan (1994) 75 A Crim R 498 per Barr AJ, as he then was.”
The usual way of applying for the issue of a subpoena I have described above does not apply where a party applies for the issue of more than five subpoenas in a proceeding. Subrule 16.04(1) of the GFL Rules provides that a party must not request the issue of more than five subpoenas in a proceeding unless the Court directs otherwise. The principles that should guide the Court in deciding whether to grant such leave should at the very least include the principles that apply to determining whether to set aside a subpoena. The Court will not direct the issue of a subpoena that is liable to be set aside because, for example, the person requesting the issue of the subpoena cannot demonstrate there is a legitimate forensic purpose for its issue. Further, and in any event, the question whether there is a legitimate forensic purpose must also be assessed in the context of s 190 of the FCFC Act,[6] which relevantly provides:
[6] See generally Comcare v John Holland Rail Pty Ltd(No 5) (2011) 195 FCR 43; [2011] FCA 622
(1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
(2) Without limiting subsection (1), the overarching purpose includes the following objectives:
(a) the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court’s overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3) The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
The question I must consider, therefore, is whether Mr Haley applies for the issue of the subpoenas against the proposed witnesses for a legitimate forensic purpose, having regard to the matters stated in s 190 of the FCFC Act. That requires me, first, to identify the issues in the proceeding and, second, to identify the evidence Mr Haley submits each of the proposed witnesses will be in a position to give at the hearing.
issues in proceeding
I have set out in an earlier judgment the claims Mr Haley makes, and LOA’s response,[7] and it is unnecessary to repeat them in these reasons for judgment. (I will refer to each of the Form 2 and to LOA’s response as “pleadings”.) The pleadings reveal there are two principal issues, both of which are centred on LOA’s decision to terminate Mr Haley’s contract of employment. The first is whether LOA terminated Mr Haley’s employment because Mr Haley claimed to have exercised workplace rights. The second issue is whether LOA had lawful grounds for summarily terminating Mr Haley’s contract of employment. The onus lies on LOA to prove that it did not terminate Mr Haley’s contract of employment for the reason or for reasons that included as a substantial factor Mr Haley’s having exercised any workplace right; and the onus lies on LOA to justify it had lawful grounds for summarily terminating Mr Haley’s contract of employment. LOA proposes to discharge these burdens of proof by reading at the hearing commencing on 19 September 2022 an affidavit made by Mr Chatwin on 28 June 2021.
[7] Haley v Laing O'Rourke Australia Management Services Pty Ltd [2021] FCCA 257, at [3]-[18]. After I published this judgment, Mr Haley filed an amended Form 2 in response to which LOA filed an amended response. The amendment did not alter the allegations I set out in the earlier judgment.
Mr Haley’s submissions
In his written submissions, Mr Haley identified the issues that arise on the pleadings as follows:[8]
[8] [Applicant’s] Submissions, [21]
a.The precise nature and subject of the complaint made by Mr and Mrs [P] and whether this was handled in accordance with the Respondent’s policies (paragraph 52.b.xi and 52.c.i);
b.The Respondent’s investigation process and whether it was compliant with its own policies and the law (paragraph 35);
c.Whether the investigator appointed by the Respondent was independent and impartial (paragraph 19);
d.The Respondent’s right to summarily terminate the Applicant’s employment contract (paragraphs 27, 31 and 34);
e.The Respondent’s repudiation of a verbal agreement to meet the costs of the Applicant’s relocation costs (paragraph 48);
f.The extent to which complaints made prior to the investigation process played a part in the decision to summarily terminate the Applicant’s employment (paragraph 62);
g.The extent to which complaints made about the investigation process played a part in the decision to summarily terminate the Applicant’s employment (paragraphs 50, 52, 55, 56 and 57); and
h.The payment of contractual entitlements to the Applicant on termination of the employment contract (paragraphs 46, 53 and 104).
Mr Haley then makes two sets of submissions in support of his application for the issue of subpoenas. The first set are expressed in general terms; and the second are directed to each of the proposed witnesses.
General submissions
Mr Haley submits that LOA proposes to rely only on the affidavit of Mr Chatwin; yet that affidavit shows there were more than 20 people involved in the “investigation and disciplinary process” that led to LOA’s termination of Mr Haley’s contract of employment. In those circumstances Mr Haley submits that Mr Chatwin’s affidavit “is not sufficient to ascertain the full extent of the facts so that the court can determine a just resolution in the proceeding”.[9] In particular, Mr Haley submits:
(a)A substantive issue in the proceeding is whether LOA’s dedicated human resources professionals complied with LOA’s policies. There were at least seven dedicated human resources professionals involved in the investigation process, and these professionals, and in particular, the investigator Mr Murray Curnow-Rose, need to give direct witness testimony so the Court can determine whether LOA complied with its policies and the law and, if they did not, why not.[10]
(b)Documents LOA produced show that complaints Mr Haley made about the investigation process on 8, 16, and 17 July 2020 were handled by at least four of LOA’s executive directors, and by at least seven of LOA’s dedicated human resources professionals, yet none of the documents LOA has produced show how those complaints were processed or resolved, or, if they had not been processed or resolved, why they had not been processed or resolved. Direct witness testimony from those who received and processed the complaints will assist the Court in determining the extent to which LOA subjected Mr Haley to adverse action in the decision to summarily dismiss him because Mr Haley exercised his workplace rights by raising complaints.[11]
(c)There are contradictions between Mr Chatwin’s affidavit and the contemporaneous evidence about the identity of the decision makers. In particular, Mr Haley submits that Mr Dane Bates, Ms Helen Fraser, and Mr Pat Cashin “were confirmed as the decision makers as well as Simon Chatwin”. For that reason, the credibility of Mr Chatwin needs to be tested by questions being asked of those decision makers about their involvement in the decision to terminate Mr Haley’s contract of employment.[12]
[9] [Applicant’s] Submissions, [23]-[25]
[10] [Applicant’s] Submissions, [26]-[28]
[11] [Applicant’s] Submissions, [29]-[32]
[12] [Applicant’s] Submissions, [33]-[36]
Submissions in relation to each proposed witness
In this section of my reasons I will identify some of the subjects on which Mr Haley in his submissions says he expects each of the proposed witnesses will be able to give evidence.
Mr Pat Cashin
At the time of the investigation and disciplinary process that led to LOA terminating Mr Haley’s contract of employment, Mr Cashin was senior by grade to Mr Haley and to Mr Chatwin. Mr Haley submits Mr Cashin would be able to give evidence about (among other things) what was said in the briefing Mr Cashin received from Mr Bates on 16 July 2020; what Mr Cashin did when he received the investigation report on 17 July 2020; and whether Mr Cashin was a decision maker in the decision to terminate Mr Haley’s contract of employment.
Ms Helen Fraser
At the time of the investigation and disciplinary process that led to LOA terminating Mr Haley’s contract of employment Ms Fraser was LOA’s General Manager for Human Capital, and a line manager to Mr Bates and Ms Boulter. Mr Haley expects Ms Fraser to be in a position to give evidence about (among other things) the extent of her involvement in LOA’s decision to suspend Mr Haley’s employment, whether Ms Fraser appointed Mr Curnow-Rose as the investigator, and what instructions were given to Mr Curnow-Rose; Ms Fraser’s role as a decision maker in the investigation and disciplinary process; the extent to which Ms Fraser was involved in LOA’s decision to terminate Mr Haley’s employment; and what Ms Fraser did on 27 July 2020, when she received from Mr O’Connor a complaint made on 16 and 17 July 2020.
Mr Dane Bates
At the time of the investigation and disciplinary process that led to LOA terminating Mr Haley’s contract of employment Mr Bates was LOA’s Head of Industrial Relations and Human Capital Operations, and he was line manager to Mr Curnow-Rose. Mr Haley expects Mr Bates to give evidence about (among other things) the basis of the decision to suspend Mr Haley’s employment; whether Mr Bates appointed his direct report, Mr Curnow-Rose, as the investigator and what instructions Mr Bates gave to Mr Curnow-Rose; and Mr Bates’ role as decision maker in the investigation and disciplinary process.[13]
[13] [Applicant’s] Submissions, [54]-[60]
Mr Curnow-Rose
At the time of the investigation and disciplinary process that led to LOA terminating Mr Haley’s contract of employment Mr Curnow-Rose was LOA’s Employee and Industrial Relations Manager. Mr Haley expects Mr Curnow-Rose to give evidence about (among other things) what contact Mr Curnow-Rose made with the complainants on 3 July 2020, and what was said in that conversation; the contact Mr Curnow-Rose had with Ms Woodford, being the person who handled the complaint, on 3 July 2020 before suspending Mr Haley’s employment; the person who appointed Mr Curnow-Rose as the investigator, and the scope of his instructions; how the complaint made by Mr and Mrs P was resolved; why Mr Curnow-Rose chose not to follow up on complaints Mr Haley made on 8 July 2020 about the investigation process; why Mr Curnow-Rose chose to ignore direct witness testimony in his investigation report; why Mr Curnow-Rose produced further evidence after publishing his first final investigation report on 8 July 2020; and why Mr Curnow-Rose made substantial changes to his first final investigation report on 8 July 2020.
Mr Daniel Sleeman
At the time of the investigation and disciplinary process that led to LOA terminating Mr Haley’s contract of employment Mr Sleeman was LOA’s Senior Employee and Industrial Relations Manager. Mr Haley expects Mr Sleeman to give evidence about (among other things) who instructed Mr Sleeman’s involvement in the investigation process, the nature of those instructions, what Mr Sleeman did when he received complaints about the investigation process, the extent to which Mr Sleeman was involved in drafting the second investigation report; why in the 21 July 2020 letter Mr Sleeman determined Mr Haley’s conduct amounted to serious misconduct; and who instructed Mr Sleeman to draft the letter dated 24 July 2020 terminating Mr Haley’s contract of employment.
Ms Michelle Salisbury
At the time of the investigation and disciplinary process that led to LOA terminating Mr Haley’s contract of employment Ms Salisbury was LOA’s Senior HC Advisor. Mr Haley expects Ms Salisbury to give evidence about (among other things) why she asked Ms Woodford for Mr and Mrs P’s contact number; whether Ms Salisbury contacted Mr and Mrs P to verify the nature of the complaint; why Ms Salisbury chose not to transcribe notes of the 8 July 2020 meeting, despite Mr Haley having requested that she do so; and what interaction Ms Salisbury witnessed between Mr Curnow-Rose and Mr Bates, and whether Mr Bates had given any instructions.
Ms Sarah Boulter
At the time of the investigation and disciplinary process that led to LOA terminating Mr Haley’s contract of employment Ms Boulter was employed by LOA as a HR Business Partner. Mr Haley expects Ms Boulter to give evidence about (among other things) what Ms Boulter did when she received the complaint about the investigation process on 16 and 17 July 2020; why she sent those complaints to Mr Bates, and to Mr Sleeman; and why Ms Boulter chose not to follow up on the 16 and 17 July 2020 complaints.
Ms Cassandra Byrne
At the time of the investigation and disciplinary process that led to LOA terminating Mr Haley’s contract of employment Ms Byrne was employed by LOA as a Human Capital Business Partner. Mr Haley expects Ms Byrne to give evidence about (among other things) why Ms Byrne received the inadmissible voice recording from Mr Sleeman on 21 July 2020; what Ms Byrne said to Mr Sleeman during a briefing that took place between them on 21 July 2020 prior to the 22 July 2020 meeting; why Ms Byrne did not distribute notes of the meeting; whether Ms Byrne heard Mr Chatwin say LOA would meet all relocation costs and honour Mr Haley’s notice period in full; and whether Ms Byrne received any instructions before preparing Mr Haley’s final payment statement.
Mr Paul Barrie
At the time of the investigation and disciplinary process that led to LOA terminating Mr Haley’s contract of employment Mr Barrie was employed by LOA as the Project Director responsible for the project Mr Haley was working on. Mr Haley expects Mr Barrie to give evidence about (among other things) what he did when he received the email from Ms Woodford on 3 July 2020; what instructions Mr Barrie gave to Ms Woodford on how to handle the complaint; and what was Mr Barrie’s involvement, as Mr Haley’s line manager, in the decision to suspend Mr Haley’s employment.
Ms Natasha Woodford
At the time of the investigation and disciplinary process that led to LOA terminating Mr Haley’s contract of employment Ms Woodford was employed by LOA as Hub Travel Coordinator. Mr Haley expects Ms Woodford to give evidence about (among other things) what she did when she received an email from Amy at CTM on 3 July 2020; why Ms Woodford cancelled a call from Mr Haley on 3 July 2020 when he sought to make enquiries about the nature of the complaint received; why Ms Woodford made material changes to the complaint when it was sent to Mr Barrie, Mr Curnow-Rose, and Ms Salisbury; and the extent to which Ms Woodford received direction from Mr Barrie about how the complaint should be handled.
Mr Cathal O’Rourke
At the time of the investigation and disciplinary process that led to LOA terminating Mr Haley’s contract of employment Mr O’Rourke was LOA’s managing director. Mr Haley expects Mr O’Rourke to give evidence about (among other things) why did Mr Chatwin say to Mr Haley that Mr O’Rourke was overseeing the investigation; what Mr O’Rourke did when he was overseeing the investigation and what instructions he gave, and to whom; and how Mr O’Rourke received information when he was overseeing the investigation.
Mr Kevin McDevitt
At the time of the investigation and disciplinary process that led to LOA terminating Mr Haley’s contract of employment Mr McDevitt was a Commercial Director based in the United Kingdom, and had been appointed Mr Haley’s support person. Mr Haley expects Mr McDevitt to give evidence about (among other things) the discussions he had with Mr Chatwin.
Mr John O’Connor
At the time of the investigation and disciplinary process that led to LOA terminating Mr Haley’s contract of employment Mr O’Connor was a Group Commercial Director based in the United Kingdom to whom Mr Chatwin had a functional reporting line. Mr Haley expects Mr O’Connor to give evidence about (among other things) what Mr O’Connor did when he received the 16 and 17 July 2020 complaint about the investigation process; why Mr O’Connor chose to send that complaint to Ms Fraser, and why Mr O’Connor chose not to follow up on that complaint.
loa’s submissions
LOA makes two broad submissions. The first is that case management considerations weigh against my permitting Mr Haley to have issued subpoenas to the proposed witnesses because my permitting Mr Haley to do so will likely cause significant delay.
LOA’s second broad submission is that Mr Haley has identified no legitimate forensic purpose for the issuing of the subpoenas. LOA submits Mr Haley has misunderstood the issues in the proceeding, and that subjects in relation to which Mr Haley expects the witnesses are in a position to give evidence are not relevant to any issue. LOA makes these submissions by reference to each of the proposed witnesses. For reasons that will appear shortly, it is unnecessary to set out and address the submissions LOA makes about each of the proposed witnesses.
determination
The foundation of Mr Haley’s application for leave to issue a subpoena to each of the proposed witnesses is the contention that the evidence on which LOA proposes to rely at the hearing commencing on 19 September 2022 is not sufficient for the Court to ascertain the full extent of the facts relating to the termination of Mr Haley’s employment. The basis of that contention is the contents of documents LOA has produced which, Mr Haley submits, suggest there are other employees of LOA who were or may have been involved in, or who were otherwise aware of, the chain of events that commenced with Mr and Mrs P making their complaint, and ended with LOA’s decision to terminate Mr Haley’s employment. The purpose for which Mr Haley therefore says he applies for the issue of the subpoenas is to bring before the Court evidence so that the Court may be in a position to ascertain the full extent of the facts. All of this implies the view that a legitimate forensic purpose for issuing a subpoena is to bring before the Court all relevant or potentially relevant evidence that may be necessary to ascertain the full extent of the facts.
The purpose for which Mr Haley says he has applied for the issue of subpoenas against the proposed witnesses does not identify a legitimate forensic purpose for the issue of the subpoenas; and that is because that purpose goes no further than Mr Haley’s seeking to bring before the Court witnesses who Mr Haley submits may be able to give evidence that is relevant to a fact in issue in the proceeding. Mr Haley does not submit that the evidence he expects any of the proposed witnesses may give will materially assist his case; and consequently Mr Haley does not attempt to show how the evidence of any of the proposed witnesses could materially assist his case. For these reasons alone Mr Haley’s application for leave to issue the subpoenas to give evidence against the proposed witnesses must fail.
It is in any event difficult to see how permitting Mr Haley to have the subpoenas issued to any of the proposed witnesses could assist his case. It is apparent from Mr Haley’s written submissions that the basis on which he has identified the proposed witnesses is the contents of documents LOA has produced in response to notices to produce; and the subjects and questions in relation or in response to which Mr Haley submits each of the proposed witnesses may be able to give evidence are also based on the contents of those documents. It is further apparent from Mr Haley’s written submissions that he is of the view that the contents of the documents suggest matters, or lines of enquiry that may lead to finding matters, that are inconsistent with or which otherwise undermine or potentially undermine what Mr Chatwin deposes in his affidavit, and in particular his deposing that he was the (only) person who made the decision on behalf of LOA to terminate Mr Haley’s employment. If, however, as Mr Haley appears to intend to submit at the hearing commencing on 19 September 2022, LOA’s documents suggest there were employees of LOA, other than Mr Chatwin, who were responsible for, or who joined in LOA’s decision to terminate Mr Haley’s employment, it may be open to Mr Haley to tender at the hearing the documents that he will submit show or suggest this; and to submit that LOA’s not calling the person or persons which the documents suggest may have made or joined in the making of LOA’s decision to terminate Mr Haley’s employment, is a basis for drawing with greater confidence inferences that are available to be drawn on the basis of the documents that other employees of LOA made or joined in the making of LOA’s decision to terminate Mr Haley’s employment.[14]
[14] See Jones v Dunkel (1959) 101 CLR 298
In these circumstances, it is difficult to see how Mr Haley’s position would be improved if he were permitted to issue a subpoena to give evidence to any of the proposed witnesses; and it is easier to envisage that Mr Haley would be worse off if he were so permitted. Although Mr Haley identifies the subjects on which he expects each of the proposed witnesses will be in a position to give evidence, Mr Haley says nothing about what he expects each witness will say in relation to each subject. Further, because it will be Mr Haley, not LOA, who would be calling each of the proposed witnesses, Mr Haley would be bound, at least initially, to elicit evidence from each witness by asking non-leading questions; and, unless Mr Haley is granted leave to do so, he would not be permitted to cross-examine any witness in relation to answers the witness may give that Mr Haley considers harms or does not assist his case.[15] Each witness would also be liable to be cross-examined by LOA exposing Mr Haley to the risk of each of the proposed witnesses giving evidence that would be harmful to Mr Haley’s case.
[15] See s 38 of the Evidence Act 1995 (Cth)
Quite apart from my not being satisfied Mr Haley has identified a legitimate forensic purpose to issue the subpoenas, my permitting Mr Haley to do so would not be consistent with the overriding purposes specified in s 190 of the FCFC Act. The number of proposed witnesses is large, and their examination would greatly add to the length and complexity of the trial. On the other hand, even though Mr Haley may be confident that each of the proposed witnesses is in a position to give evidence on the subjects Mr Haley has identified in his written submissions, Mr Haley has not identified what evidence he expects each witness may give on those subjects, or the basis of his having any such expectation. Thus, it is not possible to identify any benefit that will or may accrue to the just determination of the issues in this case if I were to permit Mr Haley to have the subpoenas issued to any of the proposed witnesses that would justify the substantial delay and additional complexity that would result if I were to permit Mr Haley to do so.
conclusion
Mr Haley has not demonstrated there is a legitimate forensic purpose to his being permitted to have issued a subpoena to give evidence to any of the proposed witnesses, and, in any event, it would not be consistent with the overriding purpose identified in s 190 of the FCFC Act that Mr Haley be permitted to do so. I therefore propose to order that Mr Haley’s application permitting him to have issued the subpoenas be dismissed.
pre-trial directions
The parties have submitted competing proposed directions in relation to the hearing of this proceeding which is due to commence on 19 September 2022; and they agreed that I could determine on the papers what pre-trial directions should be made. At this stage I only propose to order that the respondent file and serve an indexed and paginated court book (in hard copy and electronic form), the index to which is to indicate whether any of the documents in the court book is the subject of an objection by either party; and list the matter for directions at 4:30 pm AEST on 9 September 2022 to determine the time by which the respondent should file and serve the court book, and what other directions should be made.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 6 September 2022
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