Hobson v BWL Pty Ltd
[2010] FMCA 722
•21 September 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOBSON v BWL PTY LTD & ORS | [2010] FMCA 722 |
| PRACTICE AND PROCEDURE – Discovery – whether in interests of administration of justice – relevance – whether of benefit to the litigation – payroll, employment and contract records – implied obligation of non-disclosure of discovered documents – documents concerning alleged bullying and intimidation and alleged police and Corruption and Crime Commission complaints – telephone and credit card records. INDUSTRIAL LAW – Termination of employment – alleged adverse action – workplace rights – personal carer’s leave – workplace safety – workers compensation. INDUSTRIAL LAW – Termination of employment – alleged unlawful termination – temporary absence because of illness or injury. |
| Corruption and Crime Commission Act 2003 (WA) Fair Work Act 2009 (Cth), ss.12, 96, 340, 342, 352 Fair Work Regulations 2009 (Cth), regs.3.01, 3.32, 3.33 Federal Magistrates Act 1999 (Cth) s.45 Federal Magistrates Court Rules 2001 (Cth), rr.14.02, 15A.05(1) Occupational Health and Safety Act 1978 (WA), s.19 Security and Related Activities (Control) Act 1996 (WA) [Workers Compensation & Injury Management Act 1978 (WA)] |
| Abrahams v Qantas Airways Limited (2007) 210 FLR 314; [2007] FMCA 639 B. Cairns, Australian Civil Procedure (7th Edn) (Sydney: Law Book Co, 2007) |
| Applicant: | NINA HOBSON |
| First Respondent: | BWL PTY LTD TRADING AS INVISION INVESTIGATIONS, CONSULTING AND TRAINING SOLUTIONS |
| Second Respondent: | JANE ELIZABETH WYLLIE |
| Third Respondent: | REINHARD ANTON LANGMAIR |
| File Number: | PEG 69 of 2010 |
| Judgment of: | Lucev FM |
| Hearing date: | 24 August 2010 |
| Date of Last Submission: | 24 August 2010 |
| Delivered at: | Perth |
| Delivered on: | 21 September 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr DS Ellis |
| Solicitors for the Applicant: | Tottle Partners |
| Counsel for the Respondents: | Ms E Wambeck |
| Solicitors for the Respondents: | Norton Rose |
DECLARATION AND ORDERS
The Court declares under s.45(1) of the Federal Magistrates Act 1999 (Cth) that it is appropriate that there be discovery of the following documents by the first respondent:
(i)payroll records of all employees employed by the first respondent from 1 November 2009 to 3 June 2010;
(ii)offers of employment made by the first respondent from 1 November 2009 to 3 June 2010;
(iii)any contracts, agreements, purchase orders or letters of engagement for the provision of services by the first respondent from 1 November 2009 to 3 June 2010;
(iv)invoices issued by the first respondent for the provision of services by the first respondent from 1 November 2009 until 3 June 2010; and
(v)Business Activity Statements for the first respondent for the period 1 November 2009 to 30 June 2010,
and that the abovementioned documents be discovered by 8 October 2010.
Otherwise, the applicant’s application for a declaration concerning discovery be dismissed.
The applicant’s application for leave to serve more than five subpoenas be dismissed.
The proceedings be adjourned to a further directions hearing on
1 October 2010 at 9.00am.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 69 of 2010
| NINA HOBSON |
Applicant
And
| BWL PTY LTD TRADING AS INVISION INVESTIGATIONS, CONSULTING AND TRAINING SOLUTIONS |
First Respondent
| JANE ELIZABETH WYLLIE |
Second Respondent
| REINHARD ANTON LANGMAIR |
Third Respondent
REASONS FOR JUDGMENT
Introduction
By an Application in a Case filed on 13 August 2010 the applicant in these proceedings, Mrs Hobson, seeks a declaration, and orders, concerning discovery and the issuance of subpoenas.
Before dealing with the Application in a Case it is necessary to set out in more detail the nature of the substantive Application and Response.
Substantive application and response
By an amended claim under the Fair Work Act 2009 (Cth)[1] Mrs Hobson alleges:
[1] “FW Act”.
a)that she was employed by the first respondent, BWL Pty Ltd trading as INVision Investigations, Consulting and Training Solutions[2] on a fixed term contract commencing on 3 February 2010 and ceasing on 3 June 2010;[3] and
[2] “INVision Investigations”.
[3] “Fixed Term Contract”.
b)the Fixed Term Contract was terminated on or about 1 March 2010, purportedly on the basis of her redundancy, but she says that the termination was:
i)in breach of the Fixed Term Contract;
ii)in contravention of s.340 of the FW Act by reason of the termination constituting adverse action against her on the basis of her workplace rights, including entitlement to:
A.personal/carer’s leave under s.96 of the FW Act;
B.a workplace that was free of hazards, including alleged bullying and intimidation of her by the third respondent, Mr Langmair (a director of INVision Investigations), the entitlement arising by reason of s.19 of the Occupational Health and Safety Act 1978 (WA),[4] which is alleged to be a “workplace law” within the meaning of s.12 of the FW Act;
C.the benefit of the Workers Compensation & Injury Management Act 1978 (WA),[5] which is also alleged to be a workplace law under s.12 of the FW Act;
D.make a complaint or inquiry under the OHS Act to an officer of WorkSafe;[6] and
E.initiate a process or proceeding under the WCIM Act seeking payment of compensation under the WCIM Act.
[4] “OHS Act”.
[5] “WCIM Act”.
[6] “WorkSafe” is the Western Australian Government agency responsible for the administration of the OHS Act.
Mrs Hobson alleges that:
a)
INVision Investigations took “adverse action” against her, within the meaning of that term in s.342 of the FW Act, by dismissing her because she had workplace rights, proposed to exercise those rights, or further or alternatively, had exercised some of those workplace rights (including taking paid sick leave from
22 February 2010);
b)she suffered an illness, being anxiety and depression, and was absent from work as a result, and that it was the actions of Mr Langmair which caused the illness by reason of his bullying and intimidating of her whilst employed with INVision Investigations.
c)Mrs Hobson says that she informed the second respondent, Ms Wyllie (also a director of INVision Investigations), of Mr Langmair’s harassment and bullying and that she sent a text message to Ms Wyllie on 26 February 2010 and informed her that she intended to seek compensation under the WCIM Act;
d)having previously been employed part-time since November 2009, she commenced full-time employment with INVision Investigations on 3 February 2010, and that:
i)she was persuaded to do so by INVision Investigations at a reduced hourly rate of pay; and
ii)INVision Investigations failed to inform her that her employment was at risk of termination because of a lack of ongoing work;
e)Mr Langmair had previously been employed by the Department of Corrective Services and that complaints of bullying and intimidation had been made against him by employees of the Department of Corrective Services;
f)subsequent to her termination:
i)INVision Investigations has, without proper justification, complained to the Western Australia Corruption and Crime Commission[7] and the Western Australian Police that she had wrongfully or fraudulently applied for and obtained a licence under the Security and Related Activities (Control) Act 1996 (WA);[8]
ii)INVision Investigations has sought, without justification, to implicate her in allegedly fraudulently using a credit card belonging to Ms Wyllie for the payment of personal travel expenses; and
iii)INVision Investigations has, without justification, alleged that Mrs Hobson fraudulently or improperly procured the transfer of a mobile telephone number from INVision Investigations to either herself or her husband, notwithstanding that Ms Wyllie had authorised the transfer of the number to Mrs Hobson;
g)Ms Wyllie and Mr Langmair were knowingly involved in the alleged contravention of s.340 of the FW Act;
h)INVision Investigations contravened s.352 of the FW Act which provides that an employer must not dismiss an employee because of an employee’s temporary absence from work because of illness or injury of a kind prescribed by the Fair Work Regulations 2009 (Cth),[9] and that Ms Wyllie and Mr Langmair, were knowingly concerned in the alleged contravention of s.352 of the FW Act.
[7] “CCC”.
[8] “SRA (Control) Act”.
[9] “FW Regulations”. See FW Regulations, reg.3.01. In relation to temporary absence because of illness or injury see generally Rogers v Millennium Inorganic Chemicals Ltd & Anor (2009) 229 FLR 198 at 206-212 per Lucev FM; [2009] FMCA 1 at paras.47-77 per Lucev FM.
For relevant purposes it suffices to say that each of the respondents denies the substance of Mrs Hobson’s case, and denies that she is entitled to any relief in respect of her claims.
Requirements for discovery in this Court
Section 45 of the Federal Magistrates Act 1999 (Cth)[10] provides as follows:
[10] “FM Act”.
Interrogatories and discovery
(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 Federal Magistrates Court Rules 2001 (Cth) provides as follows:
Declaration to allow discovery
(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 Doukidis v Williamson[11] this Court observed as follows:
[11] (2008) 6 ABC(NS) 717; [2008] FMCA 1352 (“Doukidis”).
36. The requirements for discovery in this Court have been set out in Abrahams v Qantas Airways Limited:
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 doing so 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. [12]
[12] (2007) 210 FLR 314 at 317 per Lucev FM; [2007] FMCA 639 at para.11 per Lucev FM (“Abrahams”) (footnote in original judgment).
…
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.[13]
The Court further noted:
The categories of relevant factors are not closed.[14]
37. The Court also observes that in the context of this particular case other factors which might be relevant to the issue of discovery include the conduct of the party requesting discovery in relation to the litigation, as well as the extent to which discovery might already have been made, by reason of affidavits already filed, which affidavits were, by order, required to attach relevant documents. There were no particular submissions made by the respondents concerning the discovery sought, either generally or particularly.[15]
[13] Abrahams FLR at 321 per Lucev FM; FMCA at para.25 per Lucev FM (footnote in original judgment).
[14] Abrahams FLR at 321 per Lucev FM; FMCA at para.25 per Lucev FM. See also Sherwood Overseas v Jaymac International (No. 2) [2008] FMCA 690, where similar principles are discussed (footnote in original judgment).
[15] Doukidis ABC(NS) at 725-726 per Lucev FM; FMCA at paras.36-37 per Lucev FM. See also Verge v Devere Holdings Pty Ltd (No. 3) [2008] FMCA 1220 at paras.4-9 per Lucev FM.
Discovery sought in this case
It appears from the affidavits filed that there have been ongoing discussions with respect to informal discovery in the matter, which have been successful in part in resolving the discovery issues. It would also appear that there has been inspection of those documents that have been discovered by the respondents. Nevertheless, there are still several issues with respect to discovery that remain in dispute, and Mrs Hobson seeks discovery of specific documents set out hereunder.
Generally in this case:
a)the volume of documents sought to be discovered does not appear to be large, and there is no objection to discovery upon that basis;
b)there is no Court Book containing relevant documents;
c)the discovery application is limited to specific categories of documents; and
d)although this is not a case where both parties seek discovery, the matters in relation to which discovery is now sought are matters which are disputed, and there is therefore no consent to discovery in respect of those documents, which are set out hereunder. There has however been co-operation with respect to the discovery of other documents.
Payroll records on and since 1 November 2009
Mrs Hobson seeks discovery of the payroll records of INVision Investigations on and since 1 November 2009.
The respondents assert that the payroll records are not relevant, but that they have in any event provided by way of informal discovery a summary of employees of INVision Investigations from 1 November 2009 to 26 February 2010, when Mrs Hobson was notified that her employment was being terminated. The Court was informed by Counsel for the respondents that the records provided were a MYOB summary of employees,[16] however the MYOB Employee Summaries are not in evidence. Without further evidence as to the information contained in the MYOB Employee Summaries, the Court cannot be satisfied that the MYOB Employee Summaries are primary payroll records, or, for example, the payroll records required to be kept by reason of the provisions of the FW Regulations.[17]
[16] “MYOB Employee Summaries”.
[17] FW Regulations, regs.3.32 and 3.33.
Mrs Hobson says that the summary of employees may not be an original business record and she cannot therefore be reasonably satisfied that it is accurate. Mrs Hobson also says that the question of whether her employment was terminated due to lack of work, that is that her position was made redundant, is in issue, and therefore employment records both before and after 26 February 2010 are relevant.
In the Court’s view discovery of these documents is directly relevant to whether or not Mrs Hobson was redundant, that is whether or not the duties of her job were duties that INVision Investigations no longer wished to be undertaken by anyone.[18] The documents are directly relevant because they will enable Mrs Hobson to pursue a path of inquiry as to whether other persons had been employed both during, but more particularly since cessation of, her employment, and to determine what duties those persons carried out, and whether they were the duties in whole or part of her job prior to her purported redundancy.
[18] That being the traditionally accepted common law meaning of “redundancy”: see R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-operative Ltd (1977) 16 SASR 6 at 8 per Bray CJ.
Discovery of these documents may therefore also advance the clarification of the facts, and narrow the facts or issues to be determined, which would be conducive to more expeditious resolution of the litigation, and therefore be of benefit to the litigation.
In the circumstances it is in the interests of the administration of justice that the payroll records on and since 1 November 2009 be discovered, but only for the period 1 November 2009 to 3 June 2010, the latter being the date that Mrs Hobson’s Fixed Term Contract with INVision Investigations would have ceased. Discovery need only be provided by INVision Investigations as it was the employer required to maintain the payroll records.
Offers of employment on and since 1 November 2009
Mrs Hobson seeks discovery of offers of employment made by the respondents on and since 1 November 2009.
The respondents’ solicitors have written to Mrs Hobson’s solicitors saying that they are instructed that, except for the offer of employment made to Mrs Hobson, INVision Investigations has not made any offers of employment during the period 1 November 2009 to 26 February 2010. The respondents assert that this is confirmed by the MYOB Employee Summaries which indicate that no further employees were engaged, but the MYOB Employee Summaries are not in evidence.
Mrs Hobson’s solicitors have written back noting the respondents’ solicitors’ instructions, but saying that they will press for orders for discovery, and that if the instructions are correct, then there will be nothing to discover.
The content of MYOB Employee Summaries is not described in evidence, and it cannot therefore be asserted that they provide a basis for concluding that no offers of employment have been made by INVision Investigations. The Court can see no reason to assume that an offer of employment, as opposed to actual employment, would be revealed by the MYOB Employee Summaries.
Whether or not offers of employment have been made on or since 1 November 2009, and before the expiry of the alleged fixed term contract of employment for Mrs Hobson on 3 June 2010, may be relevant to the question of whether or not Mrs Hobson was redundant as at 26 February 2010. Relevance would depend upon whether or not any offers of employment have been made, and if they have been made, what duties any offer related to, and in particular whether those duties were duties carried out by Mrs Hobson. In any event, whether or not there are documents to be discovered, discovery is likely to thereby narrow the issues and the facts to be determined, and be conducive to expeditious resolution of the litigation, and therefore is likely to be of benefit in the litigation. The discovery of offers of employment made by INVision Investigations on and since 1 November 2009 until 3 June 2010 is therefore in the interests of the administration of justice. As with the payroll records, discovery should be limited to the period from 1 November 2009 until 3 June 2010, and discovery provided by INVision Investigations only.
Contracts etc since 1 November 2009
Mrs Hobson seeks discovery of any contracts, agreements, purchase orders or letters of engagement for the provision of services by the respondents on and since 1 November 2009.
The respondents’ solicitors wrote to Mrs Hobson’s solicitors indicating that no new work was obtained by INVision Investigations from December 2009 to 26 February 2010 and therefore there was nothing to discovery in relation to this particular request. At hearing Counsel for the respondents, quite properly, informed the Court that instructions had subsequently been received that there may be documents which might be discovered in relation to this particular request. That concession highlights the danger of determining discovery applications on the basis of assertions made by solicitors for a party, and not sworn to or affirmed by the parties, that there are no documents in a particular category.
Mrs Hobson’s solicitors say that the question of whether Mrs Hobson’s employment was terminated due to a lack of work, that is her position was made redundant, is in issue and that business records of the type sought to be discovered from both before and after 26 February 2010, are relevant to that issue.
Contracts, agreements, purchase orders or letters of engagement for the provision of services, at least by INVision Investigations, are relevant for essentially the same reasons as payroll records and offers of employment are relevant. Likewise, the other factors that are relevant to making the payroll records and offers of employment discoverable in the interests of the administration of justice apply to this particular request for documents. It is therefore in the interests of the administration of justice that these documents be discovered. Again, discovery will be limited to the period 1 November 2009 to 3 June 2010, and to INVision Investigations.
Invoices for provision of services and Business Activity Statements since 1 November 2009
Mrs Hobson seeks discovery of invoices issued by the respondents for the provision of services by the respondents on and since 1 November 2009 and Business Activity Statements for the period 1 November 2009 until 30 June 2010.
The respondents say that these documents are not relevant where termination of employment due to redundancy was notified to Mrs Hobson on 26 February 2010. Further, the respondents say that the documents contain commercial sensitive and confidential information, the disclosure of which to a business competitor is objected to.
Mrs Hobson says that if employment was terminated due to a lack of work then invoices and Business Activity Statements will be relevant to that issue. Further, Mrs Hobson says that she is currently employed by a film production company, not a workplace investigations and consulting company which is in competition with INVision Investigations. Also, Mrs Hobson argues that if the invoices and Business Activity Statements contain commercially sensitive information that is not a ground for resisting discovery, and that if there is some reason for limitation of inspection then submissions to that effect can be made. It does however appear that the documents have been inspected by Mrs Hobson’s solicitors, but Mrs Hobson presses for discovery in the normal manner, which will ultimately allow her to review and inspect the invoices and Business Activity Statements.
There is no evidence to establish that any information contained in any invoices or Business Activity Statements is commercially sensitive or that there is any risk of a breach of confidence if the information is discovered. Even if there were evidence that information contained in any invoices or Business Activity Statements fell within the categories of commercially sensitive or confidential information that would not necessarily mean that discovery would not be ordered. That is because a party to litigation impliedly undertakes to the relevant court that the party will not:
a)make the contents of discovered documents public;
b)communicate the contents of such documents to any stranger to the action; or
c)use the documents or copies of them for any purpose collateral to the purpose for which production of the documents is intended to serve.
The implied undertaking extends to anyone into whose hands the discovered documents fall, provided that person knows that the documents were obtained by way of discovery. It also extends to material of secondary character derived from the discovered document. The undertaking is impliedly given to the court, and the obligations arising from it are owed to the court.[19] Any breach of the implied undertaking may be an actionable contempt of court.[20]
[19] See generally Hamersley Iron Pty Ltd v Lovell & Anor (1998) 19 WAR 316 (“Lovell”), Citicorp Life Insurance Ltd v Lubransky [2005] VSC 101 and B. Cairns, Australian Civil Procedure (7th Edn) (Sydney: Law Book Co, 2007) pages 285-287.
[20] Lovell at 326 per Ipp J and 349 per Anderson J.
Invoices and Business Activity Statements are relevant because they may relate to the services provided by INVision Investigations, and, therefore, relate to work performed by it and by its employees or service providers. If that work is constituted by the carrying out of duties formerly performed by Mrs Hobson then it may be relevant to the question of whether or not she was in fact redundant. Therefore the discovery of invoices and Business Activity Statements are relevant for essentially the same reasons as payroll records, offers of employment and contracts, agreements, purchase orders or letters of engagement for the provision of services. Likewise, the other factors that make the abovementioned documents discoverable in the interests of the administration of justice apply to this category of documents. Again, discovery will be limited to the period 1 November 2009 to 3 June 2010, and to INVision Investigations.
Bullying and intimidation
Mrs Hobson seeks discovery of documents relevant to complaints of bullying and intimidation allegedly made against Mr Langmair by employees of the Department of Corrective Services during his employment with the Department of Corrective Services.
Mrs Hobson’s affidavit alleges that Mr Langmair was the subject of allegations of bullying and harassment by him against other employees during his employment at the Department of Corrective Services, which allegations were investigated. It is alleged that the Department of Corrective Services reached a financial settlement with one of those employees.
Mr Langmair says, through his solicitors, that he does not have in his possession any such documents. There is in evidence no denial that there was an investigation, nor has there been any evidence that, if there were documents, they have been destroyed.
Mrs Hobson’s solicitors say that they note those instructions, but press for discovery of the documents, and note that if the instructions are correct there will be nothing to discover.
Mrs Hobson argues that evidence of prior acts of bullying and intimidation goes to the reasons why she was allegedly terminated. It is suggested that the threat of a lengthy or formal investigation might provide a motive for INVision Investigations acting in the way that it is alleged to have acted in terminating Mrs Hobson if viewed against an assumed background of a similar lengthy or formal investigation at the Department of Corrective Services involving Mr Langmair. There is no evidence of such an investigation.
It is difficult to see how discovery of documents concerning a previous alleged bullying and intimidation incident at another employer by one of the directors of INVision Investigations might assist in establishing that that incident, or any investigation arising from it, was a reason, part of a reason or a motivating factor for Mrs Hobson’s termination. The documents sought to be discovered relate only to the earlier alleged incident at the Department of Corrective Services. The documents themselves therefore cannot cast light on the reason for Mrs Hobson’s present termination, sometime (and possibly years) later and at a subsequent employer. Further, the documents are not necessary to establish, or assist in establishing or to pursue, the proposition contended for, that is that an earlier investigation into an alleged incident of bullying and intimidation might provide the underlying reason for the mode of Mrs Hobson’s termination. Such a proposition can be put to witnesses for INVision Investigations without reference to or production of the documents concerning complaints at the Department of Corrective Services.
In the Court’s view the documents are not relevant, are likely to impede the expeditious resolution of the matter, and are consequently not of benefit to the litigation. Therefore it is not in the interests of the administration of justice for these documents to be discovered.
Complaint to the CCC re investigator’s licence
Mrs Hobson seeks discovery of documents relevant to an alleged complaint by one or more of the respondents to the CCC concerning Mrs Hobson allegedly wrongfully or fraudulently applying for, or obtaining, an investigator’s licence under the SRA (Control) Act. Mrs Hobson says that she had reason to believe that such a complaint had been made following a Fair Work Australia mediation on 27 April 2010. Mrs Hobson does not say why she had that reason to believe. Mrs Hobson alleges she contacted the CCC and was told that they would not investigate a complaint of “this nature” as she was not a public officer.
Because:
a)it is alleged by Mrs Hobson that a similar complaint has been made to the Western Australian Police;
b)of the absence of a denial by the respondents’ solicitors as to the making of any complaint; and
c)of reference in a letter from the respondents’ solicitors to “ongoing matters with respect to the CCC”,
Mrs Hobson says she has reason to believe that there will be documents relevant to a complaint to the CCC such as she has outlined.
In a letter dated 10 June 2010 from the respondents’ solicitors to Mrs Hobson’s solicitors the respondents’ solicitors say in respect of this allegation that:
“Our clients are unable to comment on ongoing matters with respect to the CCC.
… this does not demonstrate any bullying or intimidation, as alleged, or at all.”
The respondents’ solicitors have continued to refuse to comment with regard to any documents of the type requested, and say that if they do exist disclosure of them is prohibited under the Corruption and Crime Commission Act 2003 (WA).[21]
[21] “CCC Act”.
The basis for the original suspicion that there was a CCC complaint is tenuous. There is no hint in the evidence as to what the basis for Mrs Hobson’s reason to believe that a complaint had been made actually was at the time of the Fair Work Australia mediation. Furthermore, whatever the “nature” of the alleged complaint it is Mrs Hobson’s own evidence that it is not one that the CCC said they would investigate. On that basis it cannot be said that there is a complaint under investigation by the CCC.
Mrs Hobson then asserts that because a complaint has apparently been made to the Western Australian Police, which she says is in similar terms to that which she says was made to the CCC, she has reason to believe that the respondents will have documents relating to the alleged CCC complaint.
There are several flaws in this reasoning. The first is that referred to above, that is that the matter is not one the CCC would investigate. Second, even if there were a complaint to the Western Australian Police it does not follow that it would be preceded by a complaint to the CCC, and no rational basis is posited for connecting the two alleged complaints in this way. Of itself therefore the fact that there may have been a complaint made to the Western Australian Police does not mean that there was ever a complaint to the CCC. Third, there is no evidence to suggest any complaint was made in writing.
The failure of the respondents’ solicitors to deny that a complaint has been made, and the reference in the 10 June 2010 Letter to “ongoing matters with respect to the CCC” might suggest some involvement with the CCC by the respondents in respect of Mrs Hobson. However, it goes no higher than that and does not necessarily suggest that there is, or has been, any complaint made to the CCC concerning Mrs Hobson, and in particular it does not suggest any complaint bearing upon the reasons for her termination. That highlights the real difficulty with this request for discovery, namely that there is simply no evidence to connect it with any of the reasons for termination. Even if there is a complaint to the CCC there is no evidence to suggest that it was made at any time prior to Mrs Hobson’s termination, and there is no evidence to suggest that even if a complaint was made prior to termination that it relates to any reason for termination.
In all of the above circumstances it is not in the interests of the administration of justice to require discovery of these documents where there is, on the evidence, no complaint to the CCC related to Mrs Hobson, and even if there is, no evidence that it relates to any reason for termination of Mrs Hobson.
Given the conclusion reached in the preceding paragraph it is unnecessary to consider arguments concerning the disclosure provisions of the CCC Act.
Complaint to Western Australian Police re investigator’s licence
Mrs Hobson seeks discovery of documents relating to an alleged complaint by one or more of the respondents to the Western Australian Police alleging that Mrs Hobson wrongfully or fraudulently applied for, or obtained, an investigator’s licence under the SRA (Control) Act.
Mrs Hobson’s affidavit in this regard indicates that she was told by Ms Wyllie in about April 2010, that is, about a month or more after she was terminated, that Ms Wyllie believed that Mrs Hobson had wrongfully obtained her investigator’s licence because she did not have a required qualification under the SRA (Control) Act. Mrs Hobson says that she thought that her experience as a police officer in the United Kingdom before coming to Western Australia meant that she did not have to have that particular qualification, and that that was later confirmed by the Western Australian Police. Mrs Hobson says that she actually visited the relevant section of the Western Australian Police and was informed that Mr Langmair had contacted the relevant section in March 2010 (again after the termination of Mrs Hobson) but that they were not currently investigating the grant of her investigator’s licence and that there was no reason why they ought to be conducting such an investigation. Mrs Hobson says that she was subsequently contacted by the Western Australian Police following an allegation made by Mr Langmair that the licence had been issued fraudulently, that that allegation was investigated, and that the outcome was that she had no case to answer.
As with the alleged complaint to the CCC, the alleged complaint to the Western Australian Police is not, on the evidence, one which is connected with or relates to any reason for termination. The events referred to in Mrs Hobson’s evidence all come after her termination, and there is no evidence to connect them with the reason given for termination, namely alleged redundancy, or any of the matters now alleged by Mrs Hobson to be the real reason for her termination.
In the circumstances, it is not in the interests of the administration of justice to require discovery of these documents related to any alleged complaint to the Western Australian Police, especially where there is nothing to link the complaint to the Western Australian Police with any of Mrs Hobson’s allegations concerning the reason for her termination.
Ms Wyllie’s credit card
Mrs Hobson seeks discovery of documents relevant to the making of an allegation by one or more of the respondents to the Western Australian Police that she had wrongfully or fraudulently used Ms Wyllie’s credit card for the payment of person travel expenses.
Mrs Hobson’s evidence was that in early June 2010 two police officers attended her home and informed her that a complaint had been made that she had improperly used a credit card belonging to Ms Wyllie, that they were investigating the claim, and that she was a person of interest in the case. In a letter written by her solicitors on 8 June 2010 they refer to an allegation of fraudulent misappropriation by booking travel worth some $9,000 in April 2010 through a well-known travel website. She therefore says that there will be documents relevant to that allegation. It is immediately obvious on Mrs Hobson’s account that the matters complained about occurred after termination of her employment.
In a letter from the respondents’ solicitors it is said that Ms Wyllie advised police of the names of persons who had access to the credit card, which they assert was a personal credit card of Ms Wyllie’s, and that Mrs Hobson was one person who had had such access and had used, with Ms Wyllie’s consent, the personal credit card for a work-related expense in September 2009. Therefore, on both versions of events this is a matter which has been raised with the Western Australian Police many weeks after Mrs Hobson’s termination. On Mrs Hobson’s version it relates to events in April 2010 and on the respondents’ version, to events in September 2009. On either version, both as to their nature and timing, the circumstances are not related to matters likely to assist in determining the reasons for the decision to terminate Mrs Hobson in February 2010. The events are wholly unrelated to the matters associated with Mrs Hobson’s employment which she now says resulted in her termination.
Therefore it is not in the interests of the administration of justice for discovery of any documents related to Western Australian Police inquiries concerning Mrs Wyllie’s credit card to be made.
Transfer of mobile telephone number
Mrs Hobson seeks discovery of documents relevant to the circumstances surrounding the transfers of certain mobile telephone numbers between Vodafone and Telstra during the period July 2009 to July 2010.
Mrs Hobson’s evidence in this regard is that:
a)she used her personal mobile phone for work-related calls when she first started employment with INVision Investigations;
b)the mobile phone number was registered to her husband;
c)the number was transferred to INVision Investigations’ account with Telstra to enable bills to be paid directly by INVision Investigations, on the understanding that if and when Mrs Hobson stopped working for INVision Investigations the number would be transferred back to Vodafone if Mrs Hobson requested that that occur;
d)when Mrs Hobson was terminated by INVision Investigations in February 2010 she requested that the mobile number be transferred back to Vodafone, and Ms Wyllie agreed to do so, and the transfer back was arranged in Mrs Hobson’s husband’s name;
e)nothing occurred until July 2010 when the mobile number stopped working, and as a consequence of inquiries it was discovered that the number had been transferred back to Telstra;
f)when Telstra were contacted by Mrs Hobson’s husband he was told that the number should not have been transferred back to Telstra without his permission, which had not been obtained;
g)the number was subsequently transferred back to Vodafone, but then was again transferred to Telstra without the permission of Mrs Hobson or her husband; and
h)during a telephone conversation with a Telstra officer on or about 12 August 2010 Mr Hobson was informed that the matter was in the hands of the internal affairs department of the Western Australian Police because of an allegation by Ms Wyllie that Mr Hobson, who is a police officer in the Western Australian Police, had fraudulently caused the transfer of the mobile number from INVision Investigations.
In terms of these proceedings nothing whatsoever turns upon the events concerning the transfer of the telephone numbers. Whatever has happened with respect to the telephone numbers does not relate to, and cannot cast light upon, the reasons for Mrs Hobson’s termination, and whether or not it was a genuine redundancy or for some other reason.
There will therefore be no declaration that it is in the interests of the administration of justice for there to be discovery of the telephone transfer documents.
Application for subpoenas to issue
Mrs Hobson seeks an order that she have leave to serve more than five subpoenas requiring production and/or requiring attendance to a number of named persons,[22] including:
a)four individuals named in the schedule to the application to attend to give evidence at hearing; and
b)relevant officers of the Department of Corrective Services, the CCC, the Western Australian Police, Telstra and Vodafone in relation to various documents referred to above.
[22] FMC Rules, r.15A.05(1).
The documents relevant to the subpoenas for production directed to the Department of Corrective Services, the CCC, the Western Australian Police, Telstra and Vodafone are not, for reasons set out above, documents that are relevant to the issues in those proceedings. Therefore, the Court is not prepared to grant leave to serve subpoenas on those bodies. That being the case, and there being only four subpoenas sought to issue to individuals to attend to give evidence, no leave is required under r.15A.05(1) of the FMC Rules to issue those subpoenas. Leave is not then required for Mrs Hobson to subpoena the four individuals named in the schedule to the application to give evidence at hearing.
Conclusion and orders
The Court has concluded that:
a)there ought to be a declaration under s.45(1) of the FM Act that it is appropriate that there be discovery of the following documents by INVision Investigations:
i)payroll records of all employees employed by INVision Investigations from 1 November 2009 to 3 June 2010;
ii)offers of employment made by INVision Investigations from 1 November 2009 to 3 June 2010;
iii)any contracts, agreements, purchase orders or letters of engagement for the provision of services by INVision Investigations from 1 November 2009 to 3 June 2010;
iv)invoices issued by INVision Investigations for the provision of services by INVision Investigations from 1 November 2009 until 3 June 2010; and
v)Business Activity Statements for the period 1 November 2009 to 30 June 2010,
and that those documents be discovered by 8 October 2010;
b)otherwise, the applicants application for a declaration concerning discovery be dismissed; and
c)the applicant’s application for leave to serve more than five subpoenas requiring production and/or requiring attendance be dismissed, without affecting the right to subpoena the four individuals named in the schedule to the application to attend to give evidence.
There will be a declaration and orders reflecting the above conclusions.
There will also be an order that the proceedings be adjourned to a further directions hearing on 1 October 2010 at 9.00am. The parties should confer as to appropriate orders for that directions hearing, and endeavour to ensure that those orders make provisions for:
a)any further interlocutory issues to be dealt with as soon as possible;
b)further mediation by a Registrar of this Court; and
c)if mediation is unsuccessful, a final hearing in the latter half of February or early March 2011.
The Court will hear the parties as to costs, if any.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 21 September 2010
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