Hanna v Commonwealth of Australia (Department of Defence)

[2024] FedCFamC2G 692

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Hanna v Commonwealth of Australia (Department of Defence) [2024] FedCFamC2G 692  

File number(s):

SYG 1089 of 2023

Judgment of:

JUDGE MANOUSARIDIS

Date of judgment:

2 August 2024

Catchwords:

HUMAN RIGHTS – Disability discrimination – practice and procedure - application for further discovery that was ordered by reference to categories of documents – where the dispute about whether adequate discovery has been given is based on competing constructions of one of the categories of documents – whether the Court should determine competing constructions or instead grant the parties an opportunity to identify the issues on the pleadings to which the category of documents was intended to relate and agree on a mechanism for the production of documents that are relevant to those issues – matter listed for further directions.

Legislation:

 Disability Discrimination Act 1992 (Cth) ss 5(1), 15(2)(a), 15(2)(b), 15(2)(d)

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 176

Freedom of Information Act 1982 (Cth)

Division:

General

Number of paragraphs:

19

Date of hearing:

19 July 2024

Place:

Sydney

Counsel for the Applicant:

Mr D Mahendra

Solicitor for the Applicant:

Maurice Blackburn Lawyers

Counsel for the Respondent:

Mr M Seck

Solicitor for the Respondent:

Clayton Utz

ORDERS

SYG 1089 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

JOSEPH HANNA

Applicant

AND:

COMMONWEALTH OF AUSTRALIA - DEPARTMENT OF DEFENCE (ABN 68 706 814 312)

Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	2 AUGUST 2024

THE COURT ORDERS THAT:

1.The matter be listed for a directions hearing at 9.30 am on 29 August 2024, or at such later time as may be convenient to the parties and to the Court.

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

1. On 29 February 2024 I made orders that included a declaration pursuant to s 176 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) that is appropriate, in the interests of the administration of justice, to allow discovery as provided in order 2. Order 2 (discovery order) provided that, by 26 April 2024, the respondent (Commonwealth) give discovery of “the categories of documents set out” in the annexure to the orders.

2. A dispute has now arisen about whether the Commonwealth has complied with the discovery order.

   BACKGROUND

3. The applicant, Mr Hanna, was an employee of the Commonwealth from around 2001 until around October 2018 in various sections of the Department of Defence (Department).

4. In his amended statement of claim, Mr Hanna alleges that the Commonwealth engaged in conduct that constituted discrimination against him because of his disability, contrary to the Disability Discrimination Act 1992 (Cth) (DD Act). Relevant to these reasons for judgment are the following allegations:

   (a)In March 2017 the Capability Acquisition & Sustainment Group, being an entity within the Department responsible for, among other things, developing and supporting the Department’s work force, produced a business case which indicated the possibility that Mr Hanna’s role would be made redundant as part of a consolidation and restructure process of programs.

   (b)In around May 2018 Mr Hanna applied for a number of vacant roles at the E2 level, as classified under the Defence Enterprise Agreement. At that time the Commonwealth had a policy that employees who were identified as potentially excess or excess to requirements would be entitled to priority consideration for vacant roles, and a presumption for suitability for roles for which they did not lack an essential qualification; and Mr Hanna was entitled to the benefit of the policy, because his role had been identified as potentially excess.

   (c)On 31 May 2018 the Commonwealth informed Mr Hanna that his substantive position was affected as part of the “Change Process”, and that he was deemed excess to requirements.

   (d)The Commonwealth did not redeploy Mr Hanna to a position within its operations, but instead offered him a role with the National Disability Insurance Scheme Quality and Safeguards Commission.

   (e)The Commonwealth unlawfully discriminated against Mr Hanna by preventing him from being considered for redeployment opportunities on the ground of one or more of his disabilities in breach of s 5(1), s 15(2)(a), s 15(2)(b), and s 15(2)(d) of the DD Act.

5. In its defence the Commonwealth admits all but the last of these allegations.

6. As I have already noted, the discovery order required the Commonwealth to give discovery of “the categories of documents set out” in the annexure to the orders. Relevant to these reasons are the documents described in paragraph 14 of the annexure (deletion in original) (Category 14):

   Any document recording or referring to the decision not to redeploy the Applicant within the Respondent’s operation and/or the reason/s for that decision.

7. The Commonwealth gave discovery on 24 May 2024 by filing a list of documents (Discovery Documents) verified by an affidavit made by Dr Atyeo, the Assistant Secretary of Material Procurement. Relevant to another issue that I consider in these reasons, is Dr Atyeo’s having caused the lawyers for the Commonwealth (CU) to redact portions of the Discovery Documents.

8. By letter dated 27 May 2024 Mr Hanna’s lawyers (MBL) informed CU that MBL were concerned that the Discovery Material was incomplete. MBL said that none of the documents the Commonwealth produced “relate to redeployment”; and that, in circumstances where a number of decisions were made not to redeploy Mr Hanna, “it is inconceivable that no documents would be available for production”. MBL further noted that Dr Atyeo’s affidavit does not set out the reasonable enquiries he deposes he made to comply with the discovery order, and MBL requested that CU “confirm the nature of the searches which were undertaken in response to” the categories MBL identified in their letter, which includes Category 14.

   PARTIES’ SUBMISSIONS

9. Mr Hanna, by his counsel, submits the Commonwealth has in its possession or control documents that fall within Category 14 which it had not discovered. In support of that submission Mr Hanna relies on an affidavit made by Ms Pantechis, a solicitor employed by MBL. Ms Pantechis deposes to the following instructions Mr Hanna had given to her:

   (a)In September 2017 Mr Hanna received an offer for the position of Director Business Management Unit which was later withdrawn, but no documents “regarding this decision have been produced”, even though Mr Hanna has in his possession a text message received from a Ms Coco “referring to a decision”. The text message refers to what “Donna” said to Ms Coco, namely, that “Donna” “believes it will NOT be approved”.

   (b)In March 2018 a decision was made in relation to a job swap option. Documents regarding that decision have not been included in the Discovery Documents, even though, in response to an application Mr Hanna made under the Freedom of Information Act 1982 (Cth) (FOI Request), Mr Hanna received a document which “refers to a denial of a redeployment option”. The document is a redacted email sent on 17 April 2018. The email refers to a conversation “regarding [his] thoughts about taking on Joe Hanna”, and that his “response was an adamant no”, and that some persons or group of persons “weren’t [terribly] happy at the thought of Joe coming back”.

   (c)Mr Hanna was considered for the Deputy Director General, Land Systems Division roles in 2018, but Mr Hanna did obtain that role. The Discovery Documents do not contain any documents in relation to this matter.

   (d)In April 2018 Mr Hanna was to be redeployed to the position of Commercial Director for Navy Support program office. Mr Hanna obtained in response to an FOI Request an email about relocation expenses. This redeployment did not eventuate, and a decision must have been made at some point, but the Discovery Documents do not include any documents about this potential redeployment.

   (e)In around April or May 2018 Mr Hanna interviewed for a Commercial Director position, providing operational contracting support to navy vessel replenishment. Mr Hanna was not offered this role, but the Commonwealth has not discovered documents regarding that decision.

   (f)In July 2018 Mr Hanna interviewed for the position of Director in Wide Area Surveillance Systems in the Program Office. Mr Hanna was not offered this role, but the Commonwealth has not discovered documents regarding that decision.

10. Counsel for Mr Hanna submitted that it appears the Commonwealth has adopted a narrow and technical construction of Category 14. Counsel submitted that Category 14 should be properly construed as requiring the discovery of “any document recording any decision not to redeploy the applicant, or to not employ the applicant in a particular position within the respondent’s operation and/or the reason or reasons for that decision”.

11. The Commonwealth has read an affidavit made by Ms McAlister, a solicitor employed by CU, in which she sets out in some detail the process by which the Commonwealth sought to comply with the discovery order. Ms McAlister also deposed to how she construed the various categories of documents. In relation to Category 14 Ms McAlister said as follows (emphasis in original):

    I observed that Category 14 for discovery (which the Applicant drafted and which the Applicant provided to Clayton Utz and the Court) requires production of any document recording “the decision” (singular - one decision) not to redeploy the Applicant, and / or the reason/s for that “decision” (singular - one decision).

    I considered that it necessarily follows that Category 14 requires production of documents recording a decision that is alleged to have been made (a decision not to redeploy), and / or the reason/s for that “decision” (singular).

    I observed that the 27 May Letter contains the statement that (emphasis added) in relation to Category 14:

    “None of the documents produced relate to redeployment. In circumstances where a number of decisions were made not to redeploy the Applicant, it is inconceivable that no documents would be available for production”.

    I observed that these statements in the 27 May Letter in respect of Category 14 did not align with the terms of Category 14, as provided for in the Discovery Orders.

    I observed that the Applicant did not provide any further detail about these “number of decisions” that were allegedly made, sufficient for the Respondent to be able to identify with any precision what is sought, or what will be responsive to Category 14 to be produced per the

    Discovery Orders.

    I confirm that I have not seen, nor am I aware of, any documents identified during the course of the enquiries undertaken or instructions received to date that detail any information that could be characterised as a “decision” (singular) or indeed “decisions” (plural) “not to redeploy" the Applicant, or “reasons” for any such decision/s. While I understand that the Applicant was not, as a matter of fact, redeployed in the Respondent's organisation, I have not seen any material that details that this was the result of any “decision” (or “decisions”) as opposed to the Applicant not being successful in his redeployment efforts.

    DETERMINATION

12. In the course of hearing counsel’s submissions, I gained the impression, and my having considered the material in greater detail after I reserved my judgment has reinforced that impression, that the true dispute between the parties concerns the proper construction of the text of Category 14. Ms McAlister proceeded on a literal construction of the text of Category 14, whereas Mr Hanna, by his counsel, contends for a construction of Category 14 that includes the addition of text. I do not consider, however, that the appropriate way of dealing with the parties’ dispute about discovery would be by my determining a dispute about the construction of Category 14.

13. Although Category 14 has presumably been framed by reference to an issue that arises on the pleadings, Category 14 does not expressly identify what that issue is. My concluding, therefore, that Ms McAlister’s construction of Category 14 is correct, or my ordering discovery of documents that fall within Category 14 on the basis of Mr Hanna’s counsel’s construction, has little prospect of resulting in the Commonwealth producing documents that are in fact relevant to an issue arising on the pleadings, and thus promote the ability of the parties to properly litigate the true issues that arise on the pleadings.

14. Having said that, it appears to me that Category 14 is directed to requiring the Commonwealth to discover documents that are relevant to issues that arise out of the Commonwealth’s having denied the allegation made in paragraph 99M of the amended statement of claim, where Mr Hanna alleges the following:

    Mr Hanna claims that the Respondent has unlawfully discriminated against him by preventing him from being considered for redeployment opportunities (2018 Redeployment Prevention) on the ground of one or more of his disabilities in breach of section 5(1) and sections 15(2)(a), 15(2)(b) and 15(2)(d) of the DDA

    Particulars

    Mr Hanna relies on paragraphs 8, 74, 76, 84, 85 and 86

15. Paragraph 99M of the amended statement of claim is unparticularised, but it suggests that Mr Hanna alleges that there were a number of redeployment opportunities that were available to him; the Commonwealth prevented Mr Hanna from applying for those redeployment opportunities; alternatively, or additionally, Mr Hanna applied for redeployment opportunities that were available to him, but the Commonwealth refused his applications; and that the Commonwealth prevented Mr Hanna from applying for those redeployment opportunities, or the Commonwealth refused to grant to Mr Hanna the redeployment opportunities for which he applied, on the ground of one or more of his disabilities.

16. It is not apparent from the material before me whether Mr Hanna has given particulars that identify the redeployment opportunities he alleges were available to him; or, in relation to each such redeployment opportunity, the acts or omissions on which Mr Hanna relies for alleging that the Commonwealth prevented him from applying for the redeployment opportunities; or, in relation to each deployment position for which he applied, but which the Commonwealth refused, the facts and matters on which Mr Hanna relies as constituting an application by him for such redeployment opportunities, and the Commonwealth’s refusal to grant Mr Hanna’s requests.

17. In my view, the most fruitful way for the parties to proceed is for Mr Hanna to provide particulars of the sort I identify in the preceding paragraph (unless he has already done so), and for the parties to agree on a mechanism by which the Commonwealth may produce documents that are relevant to the issues that arise in relation to paragraph 99M of the amended statement of claim, as limited by the particulars Mr Hanna may provide (or may have already provided).

    REDACTION OF DISCOVERED DOCUMENTS

18. The Commonwealth has redacted portions of some of the Discovered Documents. I will leave it up to the parties to determine how best to resolve the dispute that arises on the Commonwealth’s having done so. If the parties cannot agree, it may be necessary for the Commonwealth to apply for an order in relation to redaction, although the parties should be aware that any unnecessary application in that regard may be met with adverse costs orders against the party who may render such application unnecessary.

    DISPOSITION

19. I do not propose to make any order other than that the matter be listed for further directions at 9.30 am on 29 August 2024, or, if that is not convenient to the parties, at such later time that is convenient to the parties and to the Court.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       2 August 2024