Federal Circuit and Family Court of Australia
(DIVISION 2)
Harding-Smith v AMA Group Solutions Pty Ltd [2022] FedCFamC2G 821
File number(s): SYG 623 of 2021 Judgment of: JUDGE HUMPHREYS Date of judgment: 6 October 2022 Catchwords: INDUSTRIAL LAW – Practice and procedure – application to set aside Notice to Produce – whether documents relevant – whether documents oppressive. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2021 (Cth) rules 14.1, 16.16 Cases cited: Commissioner of Police (NSW) v Ritson [2020] FCCA 1083
Self Care Corporation Pty Ltd v Green Forest International Pty Ltd (No 10) [2022] FedCFamC2G 78
Division: Division 2 General Federal Law Number of paragraphs: 24 Date of last submission/s: 27 September 2022 Date of hearing: 27 September 2022 Place: Parramatta Counsel for the Applicant: Ms Steele SC Counsel for the Respondent: Ms Epstein ORDERS
SYG 623 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: STEPHEN HARDING-SMITH
Applicant
AND: AMA GROUP SOLUTIONS PTY LTD (ACN 124 094 739)
Respondent
order made by:
JUDGE HUMPHREYS
DATE OF ORDER:
6 October 2022
THE COURT ORDERS THAT:
1.Categories 8, 9 and 10 of the applicant’s Notice to Produce dated 22 April 2022 be set aside.
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
JUDGE HUMPHREYS
Introduction
Stephen James Harding-Smith (‘the applicant’) has commenced proceedings in the Court’s Fair Work Division alleging that he was dismissed from his employment with AMA Group Solutions Pty Ltd (‘the Respondent’) in contravention of a general protection under the Fair Work Act 2009 (Cth) (‘the Act’). This judgement concerns objections taken to Notices to Produce issued by each party to the proceedings.
Background to the Proceedings
The applicant was employed as the Chief Financial Officer (CFO) of the respondent. On 10 February 2021, the applicant purported to resign from his employment by giving 12 months’ notice. On the same day, the respondent summarily dismissed the applicant from his employment on the ground of serious misconduct.
The background to the resignation/dismissal occurred after investigation by an independent forensic investigator into allegations of misconduct by the former Chief Executive Officer of the respondent, Mr Andrew Hopkins. In the course of that investigation, the forensic investigator concluded that the applicant had (improperly) facilitated or was involved in the purchase of three motor vehicles, totalling $256,151.40, by the respondent for the personal benefit and use of Mr Hopkins and his immediate family. Further, the forensic investigator identified that the applicant had approved two further payments of $40,157.26 and $99,000.00, that it is alleged were not for…
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- Case
- [2022] FedCFamC2G 821
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the Notices to Produce issued by both parties met the threshold of having an apparent relevance or legitimate forensic purpose, and if the scope of the requests was reasonable and not an attempt at fishing or discovery. The court needed to assess whether the documents sought were necessary for the proper conduct of the proceedings and if the breadth of the requests was disproportionate or constituted an improper fishing expedition.
The court examined the scope and relevance of the documents requested by the applicant. Regarding the bank statements from April 2015 to June 2020, the court found that these documents were relevant and significant to the applicant’s case, as they could help prove the practice of authorizing payments for car allowances and test the respondent’s expert conclusions. Consequently, the objection to these documents was dismissed. However, the court upheld the objection to the request for "email and hard drive data" of relevant parties, considering the extremely wide remit of the request and its lack of refinement, which indicated it was more of a fishing expedition rather than serving a legitimate forensic purpose. Additionally, the sheer volume of documents, approximately 2 million, even if provided in electronic form, was deemed disproportionate and not justifiable.
The court ruled that the objections to the bank statements were unfounded, while the objection to the extensive email and hard drive data request was upheld. The court ordered that the bank statements be produced as they served a legitimate forensic purpose, but denied the request for the extensive email and hard drive data.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The principles as to when a Notice to Produce may be set aside are the same in substance as to those applicable to setting aside a Subpoena. Thus, the right to request documents is not unqualified and is subject to limitations. When presented with a contested refusal to accede to a request made under rule 14.10 of the Rules, the Court would not compel production if to do so would serve no legitimate forensic purpose: Commissioner of Police (NSW) v Ritson [2020] FCCA 1083 at [32]. The documents sought must have “apparent relevance” or a “legitimate forensic purpose’: Self Care Corporation Pty Ltd v Green Forest International Pty Ltd (No 10) [2022] FedCFamC2G 78 at [68]-[74]. It must be “on the cards” that the document sought will materially assist the party at whose request a subpoena has been issued. The Court, however, will set aside a Notice to Produce where it amounts to impermissible fishing or constitutes a bare attempt at discovery.Consideration: The Applicant’s Notice to Produce Under item 6(c), the applicant seeks bank statements for a company for a five year period from April 2015 to June 2020. It is submitted that the documents are both relevant and significant for two reasons. First, it is the applicant’s case is that there was a practice of him authorising payments in respect of car allowances, that the respondent knew of this practice and there was no basis to dismiss in for this reason. The documents sought will assist the applicant to prove this practice. It was submitted that the applicant cannot make good his case by cross-examination without access to the respondent’s documents which will demonstrate whether this was the case. Second, the applicant requires the documents in order to be able to properly test the respondent’s expert conclusions. The expert does not expose his reasoning in reaching his conclusion that the payments were made for a non-business purpose. Without the bank accounts, it will not be possible for the applicant to effectively cross-examine the expert or test his conclusions. During the course of the hearing, it was conceded that the relevant bank accounts are in electronic format and there would be no significant difficulty in providing them to the respondent, given that they were provided to the investigator in a similar manner. The Court is satisfied in these circumstances that there is a legitimate forensic purpose in the provision of these bank statements. Whilst there may be a large amount of information, it is not onerous for the respondent to provide this information. The objection has no merit. Item 8 constitutes “email and hard drive data of the relevant parties provided by AMA group” referred to in paragraph 3.2.2 of the investigation report. This material was apparently provided to the investigator and constitutes approximately just under 2 million documents. The applicant states that he needs to conduct various searches, using keywords, in order to either replicate or substantiate the investigators conclusions. The Court is not satisfied that it is “on the cards”, given the extremely wide remit of the Notice to Produce and that it has not been in any way refined, that the provision of the document serves a legitimate forensic purpose. Rather, it constitutes a blatant fishing expedition or, in fact, would amount to discovery which this Court does not normally order. Further, the provision of 2 million documents, even in electronic form as was provided to the investigator, would be disproportionate. The objection to item 8 in its current form is upheld.