Hobson v BWL Pty Ltd and Ors (No.2) - [2010] FMCA 800

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HOBSON v BWL PTY LTD & ORS (No.2)

[2010] FMCA 800

INDUSTRIAL LAW – PRACTICE AND PROCEDURE – Alleged unlawful termination of employment – discovery – documents relevant to mitigation of loss or damage – whether discovery in interests of the administration of justice.

Fair Work Act 2009 (Cth), ss.285(2)(c), 293, 294, 535
Fair Work Regulations 2009 (Cth), reg.3.33
Federal Magistrates Act 1999 (Cth), ss.13(3)(a), 45(1)

Byrne & Frew v Australian Airlines Limited (1995) 185 CLR 410
Conway-Cook v Town of Kwinana (2001) 108 IR 421; [2001] WASCA 250
Gunton v Richmond-Upon-Thames London Borough Council [1981] 1 Ch 448
Hem v Cant (2007) 159 IR 113; [2007] FCA 81
Hobson v BWL Pty Ltd Trading As INVision Investigations, Consulting And Training Solutions & Ors [2010] FMCA 722

C Sappideen, et al, Macken’s Law of Employment (6^th Ed) (Pyrmont: Lawbook Co, 2009)

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:

15 October 2010

Date of Last Submission:

15 October 2010

Delivered at:

Perth

Delivered on:

19 October 2010

REPRESENTATION

Counsel for the Applicant:

Mr S Ellis

Solicitors for the Applicant:

Tottle Partner Lawyers

Counsel for the Respondents:

Ms E Wambeck

Solicitors for the Respondents:

Norton Rose Australia

DECLARATIONS 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 applicant:
(a)documents related to the applicant’s employment or other relationship with B2B Film Production and Training Solutions; and
(b)documents showing the income (in any form) received or earned by the applicant between 1 March 2010 to 3 June 2010 including any pay slips, bank statements, Centrelink documents, emails and invoices.
The Court orders that the documents referred to in order (1) be discovered by 1 November 2010.

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

(Delivered in Chambers under s.13(3)(a) of the Federal Magistrates Act 1999 (Cth))

Introduction

This is the second application in a case in this matter seeking a declaration and orders for discovery.[1] On this occasion the respondents, BWL Pty Ltd trading as INVision Investigations, Consulting and Training Solutions,[2] Ms Wyllie and Mr Langmair, seek discovery from the applicant, Ms Hobson.
[1] As to the first application, see Hobson v BWL Pty Ltd Trading As INVision Investigations, Consulting And Training Solutions & Ors [2010] FMCA 722 (“Hobson (No. 1)”).
[2] “INVision Investigations”.
In Hobson (No. 1) the Court set out:
a)the detail of the nature of the substantive application and response;[3] and
b)the requirements for discovery in this Court,[4]
and the paragraphs in Hobson (No. 1) dealing with those…

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 800
Decision Date

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, Nina Hobson, the applicant, has filed a case against BWL Pty Ltd trading as INVision Investigations, Consulting and Training Solutions, Jane Elizabeth Wyllie, and Reinhard Anton Langmair, the respondents, seeking a declaration and orders for discovery of certain documents. The central issue in this case revolves around the alleged unlawful termination of employment and the need for discovery of documents related to the mitigation of loss or damage. The primary legal questions the court had to address were whether the discovery of certain categories of documents was necessary and in the interests of the administration of justice.

The court examined three specific categories of documents that the respondents sought from Ms. Hobson. The first category (d) included documents related to Ms. Hobson's employment or other relationship with B2B Film Production and Training Solutions. The second category (f) sought documents showing the income Ms. Hobson received or earned between 1 March 2010 and 3 June 2010. The third category (g) sought Ms. Hobson's 2009/2010 tax return. The court found that the discovery of the documents in categories (d) and (f) was necessary to assess Ms. Hobson's loss and determine whether she had taken steps to mitigate her loss. However, the discovery of the tax return in category (g) was deemed unnecessary since the primary source documents related to Ms. Hobson's income during the relevant period would have already been discovered.

In conclusion, the court declared that it was appropriate for Ms. Hobson to discover the documents in categories (d) and (f) by 1 November 2010. However, there would be no declaration for the discovery of the category (g) document. This decision ensures that the court can effectively assess the issues related to the mitigation of loss, employment, and income, ultimately serving the interests of the administration of justice.

Orders