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 (6th 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 matters should be read as if they formed part of these Reasons for Judgment.
[3] Hobson (No 1) at paras.3-5 per Lucev FM.
[4] Hobson (No 1) at paras.6-8 per Lucev FM
Discovery sought in this case
Before dealing with the specific categories of documents in dispute it is appropriate to note that, 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)it appears from the affidavits read[5] that there has been some co-operation with respect to the discovery of documents.
[5] Affidavit of Elaine Wambeck, sworn 12 October 2010 (“Ms Wambeck’s Affidavit”); Affidavit of Nina Hobson, sworn 15 October 2010 (“Ms Hobson’s Affidavit”).
At the time the application in a case was made there were still several issues with respect to discovery that remained in dispute. By the time of hearing that dispute had been narrowed to three specific categories of documents sought by the respondents, and which are set out hereunder.
Consideration
Submissions generally
The respondents argue that Ms Hobson has not discovered, in the informal discovery between the parties, documents relevant to:
a)mitigation of loss and damage;
b)employment or work undertaken since ceasing work at INVision Investigations; and
c)income received or earned since ceasing work at INVision Investigations.
It is in the context of the above alleged non-discovery by Ms Hobson that the respondents seek discovery. Ms Hobson says that such discovery is unnecessary and not in the interests of the administration of justice for the purposes of making a declaration under s.45(1) of the Federal Magistrates Act 1999 (Cth).[6]
[6] “FM Act”
The three categories of documents
The three categories of documents were described in the hearing as category (d), (f) and (g) respectively, following their sub-paragraph lettering in the application in a case. Those category descriptors are used hereunder.
Category (d)
Category (d) seeks discovery of:
documents related to the Applicant’s employment or other relationship with B2B Film Production and Training Solutions and/or another production company
There is no dispute that Ms Hobson “worked” in some capacity at B2B Film Production and Training Solutions[7] during:
a)her employment at INVision Investigations;[8] and
b)after the cessation of her employment at INVision Investigations, but before 3 June 2010.[9]
[7] “B2B”.
[8] Ms Hobson’s Affidavit, para.6(d).
[9] Ms Hobson’s Affidavit, paras.4, 5 and 6(a)-(c).
The nature of the relationship between Ms Hobson and B2B is not clear on the available evidence, especially for the period 1 March 2010 to 3 June 2010. For that period, the relationship is variously referred to as being:
a)an “association” which was “informal, undocumented and unpaid”;[10]
b)that of a “partner”,[11] but Ms Hobson says that it was an “informal use” of that term, and that she did not enter into “any formal partnership arrangement with B2B during or covering” the period;[12]
c)“employed only on an informal, undocumented and unpaid basis”;[13] and
d)“employment”.[14]
[10] Ms Hobson’s Affidavit, para.4.
[11] Ms Wambeck’s Affidavit, para.16.
[12] Ms Hobson’s Affidavit, para.5.
[13] Ms Hobson’s Affidavit, para.6(a).
[14] Ms Hobson’s Affidavit, para.6(b).
The respondents allege that the category (d) documents are relevant to actions taken by Ms Hobson to mitigate her loss or damage. The question is, however, whether it is in the interests of the administration of justice that documents relating to the nature of a subsequent employment relationship be discovered in a matter relating to termination of employment, where it is said that the documents relating to the subsequent employment are relevant to mitigation of loss or damage.
In an action where Ms Hobson seeks damages for breach of contract in relation to the termination of her employment by INVision Investigations, in addition to statutory remedies under the Fair Work Act 2009 (Cth),[15] there can be no doubt that she has a duty to mitigate her loss.[16] In order for the Court to assess Ms Hobson’s alleged loss, the Court would at least need to know:
a)whether Ms Hobson endeavoured to obtain work subsequent to termination of her employment with INVision Investigations;
b)whether, if Ms Hobson worked, she worked as an employee, an independent contractor, a partner, or in some other form of work, because, if the taxation treatment of the forms of work is different, it might alter the quantum of her alleged loss;[17] and
c)if Ms Hobson worked, for how long she worked, and how much she earned, or was entitled to receive and did actually receive.[18]
[15] “FW Act”.
[16] Byrne & Frew v Australian Airlines Limited (1995) 185 CLR 410 at 428 per Brennan CJ, Dawson and Toohey JJ; Conway-Cook v Town of Kwinana (2001) 108 IR 421 at 428-429 per Steytler J; [2001] WASCA 250 at para.36 per Steytler J; Gunton v Richmond-Upon-Thames London Borough Council [1981] 1 Ch 448 at 468 per Buckley LJ.
[17] See generally the discussion under “Taxation” in C Sappideen, et al, Macken’s Law of Employment (6th Ed) (Pyrmont; Lawbook Co, 2009), pages 409-410.
[18] Hem v Cant (2007) 159 IR 113 at 120 per Finkelstein J; [2007] FCA 81 at paras.30-31 per Finkelstein J.
Ms Hobson:
a)says that during her “association” or “employment” by B2B she was not paid; and
b)does not say whether or not she was remunerated or entitled to remuneration arising from her “partnership” at B2B.[19]
[19] See para.10 above.
Ms Hobson urged the Court to find that there was sufficient evidence to conclude that she was not paid by B2B during the period from 1 March 2010 to 3 June 2010, and therefore there was no need for discovery of any documents concerning work done by her during this period. The evidence relied upon is meagre and contradictory, or at least confusing, and does not form a sound basis for reaching factual conclusions as to:
a)the nature of the relationship between Ms Hobson and B2B, and whether she worked as an employee, a partner, an independent contractor, or in some other form of work;
b)how long Ms Hobson worked at B2B; and
c)how much, if anything, Ms Hobson earned, or was entitled to receive and did actually receive, for any work for B2B.
The Court notes that if Ms Hobson was “employed” by B2B she would have had to have been paid a minimum rate of wage.[20] The fact that Ms Hobson says that she has not been paid any monies by B2B is not necessarily determinative of whether she ought to have been paid.
[20] FW Act, ss.285(2)(c), 293 and 294. There would also have been an obligation on B2B to produce and keep certain employment records: see, for example, FW Act, s.535 and Fair Work Regulations 2009 (Cth), reg.3.33 (pay records).
In relation to Ms Hobson’s “work” for B2B, the category (d) documents are the documents most likely to enable the Court to fulfil an essential part of its adjudicative function, namely the assessment of any loss suffered by Ms Hobson. Further, any category (d) documents that exist are likely to be easily obtainable, and not voluminous. In the circumstances, the Court finds that there ought to be a declaration under s.45(1) of the FM Act that it is in the interests of the administration of justice to allow discovery of the category (d) documents, so far as they relate to Ms Hobson’s relationship with B2B, but not otherwise.
As regards discovery of documents in relation to Ms Hobson’s employment or other relationship with “another production company”, the evidence does not establish that Ms Hobson worked for “another production company” during the relevant period. There is evidence that Ms Hobson has her own production company,[21] but also unequivocal and unchallenged evidence that she did not earn any money from her own production company during this period.[22] The evidence that Ms Hobson was “working with a production company who works with the State Government”[23] is not inconsistent with her evidence that she was working with B2B in the period between 1 March 2010 and 3 June 2010, and which is referred to above.[24] There is therefore insufficient evidence to satisfy the Court that Ms Hobson had a relationship with “another production company” (other than her own, from which she earned no income) during the above period. It is therefore not in the interests of the administration of justice that there be a declaration under s.45(1) of the FM Act to allow discovery of documents related to “another production company” as, on the unchallenged evidence, those documents would not aid the Court’s determination of the issues, and in particular the extent to which Ms Hobson has mitigated her loss.
[21] Ms Hobson’s Affidavit, para.7; Ms Wambeck’s Affidavit, para.13(a).
[22] Ms Hobson’s Affidavit, para.7.
[23] Ms Wambeck’s Affidavit, para.13(b).
[24] See paras.9-10 above.
Category (f)
Category (f) seeks discovery of:
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 category (f) documents are discoverable for essentially the same reasons as the category (d) documents. The Court therefore finds that there ought to be a declaration under s.45(1) of the FM Act that it is in the interests of the administration of justice to allow discovery of the category (f) documents.
Category (g)
Category (g) seeks discovery of:
2009/2010 tax return of the Applicant
The Court notes that Ms Hobson’s 2009/2010 tax return has not yet been prepared.[25] The matter is therefore determined on the basis of whether Ms Hobson’s 2009/2010 tax return ought to be discovered when it has been prepared.
[25] Ms Hobson’s Affidavit, para.3(f).
If discovery is given of the documents ordered to be discovered under categories (d) and (f) the respondents will have, if not all, then most of, the relevant primary source documents related to Ms Hobson’s income received or earned from any source during the period from 1 March 2010 to 3 June 2010. Therefore, Ms Hobson’s 2009/2010 tax return is merely ‘corroborative’, as was quite properly conceded by Counsel for the respondents. It is therefore not a document which is likely to further advance any argument about mitigation of loss, employment or work undertaken, or income received or earned, since Ms Hobson ceased employment at INVision Investigations. Accordingly, it will not be of further assistance to the Court, or the parties, in the determination of those issues, and it is therefore not in the interests of the administration of justice that there be a declaration under s.45(1) of the FM Act to allow discovery of Ms Hobson’s 2009/2010 tax return.
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 Ms Hobson discover the category (d) and (f) documents, and that those documents be discovered by 1 November 2010; and
b)there ought not be a declaration under s.45(1) of the FM Act that it is appropriate that Ms Hobson discover the category (g) document.
There will be a declaration and order accordingly.
In the unlikely event (bearing in mind the nature of the applicable costs provisions in the FW Act) that either party seeks costs, an application can be made in the normal course.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 19 October 2010
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