Harley v Commonwealth of Australia (No.2) - [2011] FMCA 294

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HARLEY v COMMONWEALTH OF AUSTRALIA (No.2)

[2011] FMCA 294

HUMAN RIGHTS – Discovery – application for declaration – relevant legal principles.

Human Rights and Equal Opportunity Commission Act 1986
Federal Magistrates Act 1999 (Cth), s.45
Federal Magistrates Court Rules 2001, rr.14.01 & 14.02

Abraham v QANTAS Airways Ltd (No.2) [2007] FMCA 639
NAQR & Ors v Minister for Immigration (2002) FMCA 271

Applicant:

GUY MICHAEL WEST HARLEY

Respondent:

COMMONWEALTH OF AUSTRALIA

File Number:

ADG 259 of 2010

Judgment of:

Lindsay FM

Hearing date:

18 April 2011

Date of Last Submission:

18 April 2011

Delivered at:

Adelaide

Delivered on:

28 April 2011

REPRESENTATION

Counsel for the Applicant:

Mr Harley

Solicitors for the Applicant:

Dixon Gallasch Pty Ltd

Counsel for the Respondent:

Ms Firkin

Solicitors for the Respondent:

Blake Dawson

ORDERS

The Court declares pursuant to section 45 of the Federal Magistrates Act 1999 (Cth) that it is in the interests of the administration of justice that there be an order for discovery by the respondent of the following categories of documents:
(a)Research, data, papers and other documents relating to or relied upon for the setting of the annual Physical Fitness Test for officers in the Royal Australian Air Force Active Reserve which applied in the period 9 July 2004 to 31 December 2009;
(b)Pre-enlistment personnel files for all applicants for appointment as Operations Officers in the Royal Australian Air force Active Reserve who were recommended to appear before an Officer Selection Board held between 29 October 2009 and 31 December 2010 including Applications for Entry into the ADF, Personal History Profiles, Defence Interview Reports, RAAF Officer Overall Assessment Forms, Writing Skills Exercise - Officer Entry, Recruiting Psychology Reports, Psychology Assessment Records, Psychology Test Records, MHS Questionnaires, Allocation Adive Forms, reports by mental health practitioners, academic qualifications, references and letters of appointment.
That the matter be adjourned for directions to 4 May 2011 at 9.30am (SA time) with the respondent’s counsel at liberty to attend by telephone.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADG 259 of 2010

GUY MICHAEL WEST HARLEY

Applicant

And

COMMONWEALTH OF AUSTRALIA

Respondent

REASONS FOR JUDGMENT

On 18 April 2011 I reserved for determination the application by the applicant for discovery, or at least those parts of it that were not the subject of a detailed consent order I made on that day.
The remaining controversy about the application relates to orders the applicant seeks that a declaration for discovery should be made in relation to the following documents:
(g)Research, data, papers and other documents relating to or relied upon for the setting of the annual Physical Fitness Test for officers in the Royal Australian Air Force Active Reserve which applied in the period 9 July 2004 to 31 December 2009;
(n)All other documents relating to the level and type of fitness which is measured by the annual Physical fitness Test for officers in the Royal Australian Air Force Active Reserve; and
(o)Pre-enlistment personnel files for all applicants for appointment as Operations Officers in the Royal Australian Air force Active Reserve who were recommended to appear before an Officer Selection Board held between 29 October 2009 and 31 December 2010 including Applications for Entry into the ADF, Personal History Profiles, Defence Interview Reports, RAAF Officer Overall Assessment Forms, Writing Skills Exercise - Officer Entry, Recruiting Psychology Reports, Psychology Assessment Records, Psychology Test Records, MHS Questionaires (sic), Officer Selection Board notes, Allocation Adive Forms, reports by mental health practitioners, academic qualifications, references and letters of appointment.
The application for an order for declaration in relation to these documents was opposed by the respondent who in respect of the last category of documents (o) provided her own detailed minute, which I have set out at [23] hereof.
On 13 December 2010 and 25 March 2011 I provided Reasons in relation to an application by the applicant for the appointment of a Court expert. That decision also expanded upon earlier truncated Reasons I had given for refusing the applicant’s application for a decision on a separate question.
There are four occasions of discrimination alleged in the application that is before the Court. The first three relate to an allegation of indirect age discrimination and that relates principally if not exclusively to the administration of what is known as a “beep test”. The last occasion to which the application relates alleges an act of direct age discrimination. The nature of the application is described at length in the Reasons I gave on the earlier occasion. I do not propose to repeat what is set out therein.
Section 45 of the Federal Magistrates Act 1999 (Cth) (hereinafter referred to as “the Act’) provides as follows:
(1) Interrogatories and discovery are not allowed in relation to proceedings in the Federal Magistrates Court unless the Federal Magistrates Court or a Federal Magistrate declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.
(2)In deciding whether to make a declaration under subsection (1), the Federal Magistrates Court or a Federal Magistrate must have regard to:
(a)whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and
(b)such other matters (if any) as the Federal Magistrates Court or the Federal Magistrate considers relevant
Rule 14.02 of the Rules of this Court provide as follows:
(1)A declaration may be made under subsection 45 (1) of the Act to allow discovery on the application of a party or on the Court's own motion.
(2)If a declaration is made, the Court or a Registrar may make an order for disclosure:
(a)     generally; or
(b)    in relation to particular classes of documents; or
(c)     in relation to particular issues; or
(d)    by a specified date.
In Abraham v QANTAS Airways Ltd (No.2) [2007] FMCA 639 Lucev FM was dealing with an application under s.659 of the Workplace Relations Act 1996 (Cth) and was faced with an application by the applicant that the respondent employer produce certain classes of documents.
His Honour dealt with the phrase “in the interests of the administration of justice”. He said at paragraphs [9] to [11]:
9. The Court dealt with the phrase “interests of the administration of justice” in Genovese v BGC Construction Pty Ltd. In Genovese the Court said:
“In BHP Billiton Ltd v Schultz (2004) 221 CLR 400, [2004] HCA 61, (“Schultz”) the High Court considered the nature of the “interests of justice”: Gleeson CJ, McHugh and Heydon JJ CLR at p.421, HCA at par [15] said:
The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so, the interests of the respective parties, which might in some respects be common (as, for example, cost and efficiency), and in other respects conflicting, will arise for consideration. The justice referred to in s.5 is not disembodied, or divorced from practical reality.
Gummow J observed that the interests of justice “are even-handed”; CLR at p.445, HCA at par [100] while Callinan J referred to the requirement to “do equal justice”: CLR at p.492, HCA at par [258]. ”
and further said:
“In assessing the “interests of the administration of justice” similar considerations to those in Schultz apply, with the qualification related to “administration of justice”. Administration means “management”: Concise Oxford Dictionary, 7^th Edition (Oxford: Oxford University Press, 1984) at p.13. Thus, s.39(3)(d) of the [FM] Act is directed to a consideration of the interests of the management of justice, which must mean management by the Court of the proceedings pending before the Court. ”
10. Although Genovese was a case concerning transfer of proceedings to the Federal Court under s.39(3)(d) of the FM Act, the consideration of the phrase “interests of the administration of justice” there is apposite in this case.
11. The Court must therefore in considering an application for a discovery declaration determine whether the interests of the administration of justice, that is the interests of the management of justice, being the management by the Court of the proceedings pending before the Court, require such a declaration, and in so doing the Court “must have regard to” whether discovery “will be likely to contribute to the fair and expeditious conduct of the proceeding” and such other matters as the Court considers relevant.
He went on to cite the decision of the Court in NAQR & Ors v Minister for Immigration (2002) FMCA 271 at [5] where the Court said:
Two things are immediately apparent from s.45 of the Federal Magistrates Act and the rule 14.01. The first is that there is a rebuttable presumption in proceedings in this Court that discovery and interrogatories will not be permitted. That is consistent with Parliament’s direction (s.3 Federal Magistrates Act) that the Court should act informally and use streamlined procedures. Secondly, where a Federal Magistrate or a Court decides that interrogatories or discovery should be permitted in a particular case, reference should be made to the relevant rules on discovery or interrogatories in the Family Court or the Federal Court.
His Honour agreed with the description of s.45 as a section creating a rebuttable presumption but he disagreed (and in my view, was correct in doing so) that s.45 required reference to the Rules of the Family Court or the Federal Court. Whilst that is the correct position in relation to interrogatories by reason of Rule 14.01(2) of the Rules of this Court, it is not the position with respect to discovery. His Honour goes on at [24]:
To require reference to the relevant Federal Court Rules or Family Court Rules on discovery would be contrary to the intent of r.1.05(1) of the FMC Rules which requires that the practice and procedure of this Court be governed by the FMC Rules, except where those rules are insufficient or inappropriate in which case the Federal Court Rules or the Family Law Rules 2004 (Cth) or the Family Law Rules 1984 (Cth) may be applied in whole or in part and modified or dispensed with as necessary.
I respectfully agree with his Honour, save that the reference to the Family Law Rules that may be applied pursuant to Rule 1.05 includes the Family Law Rules 2004 as well.
His Honour summarised the principles to be deducted from the cases in paragraphs [25] and [26] of his judgment:
25. In summary, it appears that in order to obtain an order for discovery in this Court the Court must determine on the available evidence that it is in the interests of the administration of justice to do so, and in making that determination must have regard to whether allowing discovery would be likely to contribute to the fair and expeditious conduct of the proceedings, and such other matters as the Court considers relevant. Those other matters might include:
(a)     the relevance of any documents sought to be discovered;
(b)     the volume of documents sought to be discovered;
(c)whether there is a court book containing relevant documents, and the extent to which relevant documents are included in the court book;
(d)     whether discovery would narrow the issues;
(e)     whether both parties seek discovery;
(f)     whether there is consent to discovery;
(g)     whether discovery is “of benefit” in the litigation; and
(h)the effect of discovery on litigants, especially, vulnerable litigants.
26.The categories of relevant factors for the purposes of s.45(2)(b) of the FM Act are obviously not closed.
The first category of documents in respect of which there is controversy is that described in paragraph 1(g) of the applicant’s minute, which, with amendments he proffered during the hearing, seeks an order that there be a declaration that it is in the interests of justice that there by an order for discovery by the respondent in relation to:
(g)Research, data, papers and other documents relating to or relied upon for the setting of the annual Physical Fitness Test for officers in the Royal Australian Air Force Active Reserve which applied in the period 9 July 2004 to 31 December 2009.
That encompasses both the occasions of indirect age discrimination and direct age discrimination.
The respondent’s counsel has already consented to an order for a declaration of discovery in relation to the documents set forth in paragraph (f) and (g) of a minute provided by her.
That order requires the discovery of documents as follows:
(f)Research, data, papers and other documents relating to or relied upon for the setting of the Pre-enlistment/Appointment Fitness Assessment Standards for officers in the Royal Australian Air Force Active Reserve which applied during the period from 9 July 2004 to 31 December 2009; and
(g)All other documents relating to the level and\or type of fitness which is measured by the Pre-enlistment/Appointment Fitness Assessment Standards for officers in the Royal Australian Air Force Active Reserve which applied during the period from 9 July 2004 to 31 December 2009.
The difference, of course, is that the applicant seeks discovery of documents relating not just to applicants for positions in the Royal Australian Air Force Reserve but for those who have already attained officer status in that Reserve. It might be thought that the relevance of such material is questionable given that the question is not whether the setting of the fitness standard is reasonable or rational, but whether it applied in a discriminative fashion to someone of the applicant’s age. But such a view would ignore the fact that this allegation is one that is specifically set forth in paragraph 10 of the application itself. In paragraph 10.4 of his application filed on 21 September 2010 the applicant alleges:
10.4 The test is not aligned with the fitness levels required of RAAF personnel after they have commenced employment, such fitness levels being adjusted for age.
It remains to be seen whether such an allegation will be made out. It remains to be seen whether the documents will even be admissible but that is not the test at this point. In my view, their potential relevance has been demonstrated and it would not be in the interests of the administration of justice for this category of documents to be kept from the applicant at this stage and I will order accordingly.
Similar considerations apply in relation to the next controversial part of the applicant’s application which was set out in paragraph 1(n) of his minute:
(n)All other documents relating to the level and type of fitness which is measured by the annual Physical fitness Test for officers in the Royal Australian Air Force Active Reserve
At first sight it might be thought that these documents are substantially co-extensive with those documents dealt with in the preceding paragraph. The distinction seems to be between those documents that are required to assess what is measured by the annual physical fitness test for officers and a broader request for documents relied upon for the setting up of the test but there is too fine a level of calibration in the categorisation of the documents, in my view, for an order in those terms to have any utility and it will be refused. The documents sought will fall into the broader category of documents within the preceding order.
The applicant also seeks discovery of the following documents:
(o)Pre-enlistment personnel files for all applicants for appointment as Operations Officers in the Royal Australian Air force Active Reserve who were recommended to appear before an Officer Selection Board held between 29 October 2009 and 31 December 2010 including Applications for Entry into the ADF, Personal History Profiles, Defence Interview Reports, RAAF Officer Overall Assessment Forms, Writing Skills Exercise - Officer Entry, Recruiting Psychology Reports, Psychology Assessment Records, Psychology Test Records, MHS Questionnaires, Officer Selection Board notes, Allocation Adive Forms, reports by mental health practitioners, academic qualifications, references and letters of appointment.
As an alternative to the orders sought by the applicant, the respondent proposes an order in the following terms:
(h)Defence Force Recruiting generated documents, redacted to de-identify the person referred to in the documents, which are contained in the pre-enlistment personnel files for all applicants for appointment as Operations officers in the Royal Australian Air force Active Reserve who were recommended to appear before an Officer Selection Board held between 29 October 2009 and 31 December 2009, excluding medical and psychological records.
As I understand the applicant’s case, none of his applications ever resulted in him reaching the Officer Selection Board. He wishes to obtain documents relating to those applicants who were successful in getting before the Board. That is a reasonable request in itself. The comparison of the way in which his own application was dealt with as against those applicants who were successful in getting before the Board will provide relevant comparisons. The respondent does not object in principle to that request. There are several specific objections however.
Firstly, the applicant seeks the notes of the Officer Selection Board itself. I have difficulty in grasping the relevance of notes of the stage of a process which the applicant never attained. I am not able to infer that they will provide information any more useful than that which will be discovered in relation to the process which got the applicant and the comparison applicants to the Board. I think that part of this category should be refused.
Secondly, the respondent wishes to produce only “Defence Force Recruiting generated” documents. The applicant’s claim for pre-enlistment personnel files is not constrained in that way. The utility of the comparison exercise will be undermined unless the applicant is given documents submitted by or on behalf of the applicants themselves. I do not see the logic of excluding such material. It will be included.
I do not think there was any dispute between the parties as to the redaction of information other than the age and gender of the other applicants who made application in the relevant period but I understood (and this is the third difference) that there was disagreement as to whether, in accordance with the respondent’s contention, the declaration for discovery order should exclude medical and psychological records.
I recognise that the application for discovery as it related to these categories of documents will be quite onerous but it seems to me for the exercise of discovery of this material to have any utility it would need to include relevant medical and psychological records of the applicants for the sake of comparison. It is only when the applicant is able to compare the detail of his own medical and psychological profile of his own application with those of other applicants that he will be able to identify whether he was discriminated against on account of age.
It is important to bear in mind that the obligation to comply with the order will be subject to the redaction of all material which would identify an individual applicant.
I think the applicant has demonstrated sufficient relevance to his application for the order to be made such that it includes the relevant medical and psychological records.

In the case of this last category of documents then I propose to make an order in terms of the applicant’s minute of order save that the reference to “Officer Selection Board notes” will be deleted.
I order accordingly.
The other matter that I reserved was the question of the allocation of hearing dates but I propose to appoint a further telephone directions hearing in the immediate future and to request that the parties confer with my Associate so that the appropriate hearing dates can be allocated before I commence leave.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Date: 28 April 2011