Hobson v BWL Pty Ltd - [2010] FMCA 722

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
Citicorp Life Insurance Ltd v Lubransky [2005] VSC 101
Doukidis v Williamson (2008) 6 ABC(NS) 717; [2008] FMCA 1352
Hamersley Iron Pty Ltd v Lovell & Anor (1998) 19 WAR 316
R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-operative Ltd (1977) 16 SASR 6
Rogers v Millennium Inorganic Chemicals Ltd & Anor (2009) 229 FLR 198; [2009] FMCA 1
Sherwood Overseas v Jaymac International (No. 2) [2008] FMCA 690
Verge & Anor v Devere Holdings Pty Ltd & Ors (No.3) [2008] FMCA 1220

B. Cairns, Australian Civil Procedure (7^th 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FMCA 722
Decision Date: 21 September 2010

CaseChat Overview and Summary

This matter was before the Federal Magistrates Court of Australia, presided over by Lucev FM, in which the applicant, Nina Hobson, sought a declaration concerning discovery and the issuance of subpoenas against the first respondent, BWL Pty Ltd trading as INVision Investigations, Consulting and Training Solutions, the second respondent, Jane Elizabeth Wyllie, and the third respondent, Reinhard Anton Langmair. Mrs Hobson, who was employed by INVision Investigations, alleged that her employment was terminated in breach of her contract and in contravention of the Fair Work Act 2009 (Cth). In seeking discovery, Mrs Hobson aimed to obtain specific documents relevant to the issues in the case, including payroll records, offers of employment, contracts, invoices, and Business Activity Statements. The respondents opposed the discovery application, arguing that the documents were irrelevant, commercially sensitive, or already discovered through informal means. The court considered the relevance, volume, and potential impact on the administration of justice in deciding whether to allow discovery. The court concluded that certain documents were relevant and necessary for the fair and expeditious conduct of the proceedings, while others were not relevant to the issues at hand. As a result, the court ordered discovery of specific documents related to payroll records, offers of employment, contracts, invoices, and Business Activity Statements, but denied discovery of documents related to alleged bullying and intimidation incidents, complaints to the CCC, complaints to the Western Australian Police, and the transfer of a mobile telephone number. The court also dismissed Mrs Hobson's application for leave to serve more than five subpoenas.

Orders