Homes v Australian Carers Pty Ltd
[2023] FedCFamC2G 711
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Homes v Australian Carers Pty Ltd [2023] FedCFamC2G 711
File number(s): ADG 131 of 2022 Judgment of: JUDGE LUCEV Date of judgment: 4 August 2023 Catchwords: FAIR WORK – alleged contravention of general protections – termnation of employment – alleged underpayments of allowances and overtime
PRACTICE AND PROCEDURE – Notice to produce – requirement for a notice concerning a specified document
PRACTICE AND PROCEDURE – Discovery – requirements for declaration concerning discovery – discovery exception not the rule
PRACTICE AND PROCEDURE – Subpoena – relevance of documents sought
Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 5, 176, 190
Federal Circuit Court of Australia Act 1999 (Cth) s45
Federal Magistrates Act 1999 (Cth) s 45
Fair Work Act 2009 (Cth) s 570
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 14.10, 16.16, 22.06
Federal Circuit Court Rules 2001 (Cth) r 14.02
Federal Court Rules 2011 (Cth) r 30.28
Migration Regulations 1994 (Cth) reg 5.19(2)
Cases cited: Abrahams v Qantas Airways (No.2) [2007] FMCA 639; (2007) 210 FLR 314
Aon Risk Services v Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14
Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd and Woolworths [2015] FCA 1520
Australian Fisheries Management Authority v PW Adams Pty Ltd (1995) 61 FCR 314; (1995) 22 AAR 261; (1995) 134 ALR 51
Australian Workers Union v Leighton Contractors Proprietary Limited (No 2) [2013] FCAFC 23; (2013) 232 FCR 428
Bonjour v Cachet Holdings Pty Ltd trading as Mulberry Tree Childcare (No. 3) [2023] FedCFamC2G 5
Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442
Eugene Cho Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2020; (2021) 361 FLR 340
Fair Work Ombudsman v Austrend International Pty Ltd [2018] FCA 171
Genovese v BGC Construction Pty Ltd [2006] FMCA 1507
Hartnett Legal Services Pty Ltd v Ballantyne [2016] FCA 1116
Lift Shop Pty Ltd v Next Level Elevators Pty Ltd (No 2) [2023] FedCFamC2G 268
Lowery v Insurance Australia Ltd [2015] NSWCA 303
Vanden Driesden v Edith Cowan University [2012] FMCA 735; (2012) 269 FLR 422; (2012) 226 IR 452; (2012) 64 AILR 101-754
Vinden v Wrong Fuel Rescue Pty Ltd [2019] FCCA 1091
Division: Division 2 General Federal Law Number of paragraphs: 45 Date of last submission/s: 4 August 2023 Date of hearing: 4 August 2023 Place: Perth (by video-link to Adelaide) Counsel for the Applicant: Mr R Sallis Solicitor for the Applicant: RSA Law Counsel for the Respondents: Mr S Richter Solicitor for the Respondents: WBH Legal ORDERS
ADG 131 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHARMAINE HOMES
Applicant
AND: AUSTRALIAN CARERS PTY LTD
First Respondent
REGINALD MALCOLM VITNELL
Second Respondent
order made by:
JUDGE LUCEV
DATE OF ORDER:
4 august 2023
THE COURT ORDERS THAT:
1.The Applicant’s Application in a Proceeding filed 1 August 2023 for discovery be dismissed.
2.The Applicant pay the Respondent’s costs of the Application in a Proceeding in accordance with the relevant item of the costs schedule in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), which if not agreed be determined by the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Delivered ex tempore and edited from the transcript)JUDGE LUCEV
Before the Court is an application in a proceeding filed on 1 August 2023 on behalf of the applicant Ms Homes, supported by an affidavit of a solicitor for the applicant, Mychi Duong (“Duong Affidavit” and “Ms Duong” respectively), of the same date and, which read together, seek general discovery of certain documents. The documents of which discovery is now sought were the subject of an earlier notice to produce sent to the respondents, Australian Carers and Mr Vitnell (together “Respondents”), but which did not result in production of the documents.
The substantive application is one in which various orders are sought, but, in essence, they are
(a)orders under the Fair Work Act 2009 (Cth) (“FW Act”) with respect to alleged adverse action giving rise to alleged contraventions of general protections by the Respondents in relation to Ms Homes;
(b)an order with respect to alleged failure to provide a Fair Work Information Statement as required by the FW Act;
(c)orders with respect to alleged underpayments of award entitlements; and
(d)insofar as its relevant, pecuniary penalties arising in relation to the alleged contraventions of the FW Act.
The substantive application was filed on 2 June 2022. At a directions hearing on 1 December 2022 the matter was listed for a hearing on 29 and 30 May 2023. Subsequently, when the matter was heard, it went into a third day on 31 May 2023 (“Hearing”). On 31 May 2023, Ms Homes closed her case, and a no case to answer submission was then made by the Respondents. Looking then as to what occurred prior to the Hearing, the Duong Affidavit refers to a directions hearing on 21 April 2023 (“Directions Hearing”), and at [5] and [6], Ms Duong asserts that Mr Sallis requested the Court make orders for discovery relevant to the matters pleaded in the proposed statement of claim, which included a claim by the applicant for award allowances. And at the Directions Hearing, Ms Duong says that:
...the Respondents resisted the making of discovery and the Court noted that if the claim needed to be amended in respect of the quantum after the Applicant received the evidence of the Respondents, then so be it.
The Court has had the advantage of listening, yesterday, in preparation for today, to the audio of that Directions Hearing, and, in fact, what was requested or submitted was that an order for disclosure of documents relevant only to the underpayment claim ought to be made. There was no discovery, generally, sought in relation to the case, and what the Court did indicate to Mr Sallis, who has appeared today, and who also appeared at the Directions Hearing on 21 April 2023, but not at the Hearing, was that any relevant documents should be appended to affidavits, and if they were not appended, then that could be the subject of an application by Ms Homes at the commencement of the Hearing on 29 May 2023. Despite three days of Hearing on the dates the Court has already adverted to, there was no application by Ms Homes, who was represented by very experienced Counsel. That needs to be viewed in context because Counsel for Ms Homes did raise two preliminary issues, albeit very minor, at the commencement of the Hearing on 29 May 2023, but did not raise any issue with respect to the notice to produce or discovery, either at the beginning of the Hearing or otherwise during the course of those three days.
The context of the dispute as to discovery, as it now is, can be taken, in part, from the Duong Affidavit. Ms Duong refers to the affidavits of Ms Homes filed on 5 May 2023 and to the affidavits of Ms Grantham and Mr Vitnell, she says filed on 23 March 2023, but that is clearly a typographical error and should refer to 23 May 2023. Ms Duong also refers, at [15] of the Duong Affidavit, to the notice to produce served by Ms Homes' solicitors upon the Respondents at 11:28 am on 26 May 2023, that is, the Friday before the Monday hearing and some two and a half days after the receipt of the Respondents' affidavits. What was sought in the notice to produce was production at trial of categories of documents.
It is the case that the documents the subject of the notice to produce are now the subject of the orders sought for discovery in these proceedings. Mr Sallis, today, quite properly, concedes that the notice to produce was defective as a notice to produce, and the Court will turn to that issue, briefly, in a few moments. It is relevant, then, to observe that, again, looking at the Duong Affidavit, that the Respondents’ solicitors notified Ms Homes' solicitors at 4:43 pm on Friday, 26 May 2023, that they were declining to provide the documents on the ground of late timing and the broad nature of the notice to produce. Ms Duong then sent an email, at 5:15 pm on that Friday evening, 26 May 2023, detailing the relevance of the documents sought, and the fact that they were referred to in the Vitnell and Grantham affidavits being the cause of the late request for production.
The Hearing then commenced on 29 May 2023 and Ms Duong asserts that it went for two days, but does not advert to the fact that it then went for a third day. At the conclusion of the second day (30 May 2023) and when the Court had made it apparent that there would be a further two days of the Hearing (after the initial three days), Ms Duong then sent a further email to the Respondents' solicitors requesting compliance with the notice to produce. The request for compliance with the notice to produce elicited no response from the Respondents, and then nothing occurred until 19 July 2023, seven weeks later, when Ms Homes' solicitors again sought compliance with the notice to produce. In the email sent on 30 May 2023, Ms Homes' solicitors indicated that, absent any response, Ms Homes would be, in the language of the email, constrained to apply for specific discovery and costs, and a similar observation was made by the Ms Homes’ solicitors in the email on 19 July 2023.
Faced with the continued failure to respond to the notice to produce, there was then another 12 days before this application in a proceeding was made on 1 August 2023. It is fair to observe that there was, at best, a fairly relaxed approach by Ms Homes’ solicitors to the Respondent's compliance with the notice to produce. The timing, it has to be said, of the notice to produce initially did not come until two and a half days after the affidavits were filed, and the timing of the follow-up emails might be reasonably described, as already observed, as relaxed, or even pedestrian, but now, halfway through the Hearing, the Court is faced with an application in a proceeding that the Respondents provide quite extensive discovery.
The Respondent's failure to comply with the notice to produce, if it was as critical as it is now said to be, was a matter which ought to have been raised promptly and as a preliminary issue on the first morning of the Hearing, as the Court invited Ms Homes to do at the Directions Hearing on 21 April 2023. The fact that there was less than a week between the filing of the Respondent's affidavits and the commencement of the Hearing was something which was known to the parties as a consequence of the orders made by the Court on 21 April 2023, and which therefore made it all the more imperative that Ms Homes' solicitors acted promptly and proactively, which, overall, they have not done in relation to the subject matter of this application in a proceeding.
It must be observed, however, that the Respondents are not without fault in these proceedings either. In terms of r 16.16(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“GFL Rules”) it is made mandatory for the party to whom a notice to produce is addressed to comply with that notice to produce “unless the Court otherwise orders”. There should have been compliance, or an application to the Court by the Respondents for an order to set aside the notice to produce. No such application was made, but that is understandable in the circumstances given the timing of the service of the notice to produce on a Friday afternoon, half a day before the Hearing, at a time when Ms Homes’ solicitors had had the affidavits for two and a half days, and which effectively made it impracticable for a pre-Hearing application to set aside the notice to produce. Nevertheless, Counsel for Ms Homes should have raised, or should have been instructed to raise, the matter at the outset of the Hearing on 29 May 2023, but no such application was made, and no such raising of the issue occurred, in circumstances where the issue is one which Ms Homes had specifically been invited, at the Directions Hearing, to deal with at the outset of the Hearing if the relevant documents were not appended to affidavits. The consequence of all of that was that the Court was not put in a position to deal with a matter at that time which was not raised by the parties.
It is necessary to make some observations about the notice to produce, and the Court notes that, as is not necessarily unusual, it has not seen the notice to produce, which has not been filed, but which in its terms is said in the Duong Affidavit to be substantively the same as that set out in the application in a proceeding for discovery. The content of order 2 of the orders sought in the application in a proceeding filed 1 August 2023 is as follows:
The Respondents produce copies of the following documents on or before 14 August 2023:
(a)Copies of the rosters, weekend payroll records and all other documents referred to in paragraphs 43 to 48 of the Affidavit of Reginald Vitnell dated 23 May 2023.
(b)All documents relating to the billing of clients to which the work of the Applicant was charged including but not limited to invoices, billing records, itemised accounts, calculations and policies adopted for the purposes of calculating invoices.
(c)The fair work documents and hand book referred to in the induction checklist the subject of Annexure EGl to the Affidavit of Ellie Grantham dated 23 May 2023.
(d)The original induction checklist, or if that is not available, a coloured copy of the same.
(e)All documents leading up to and implementing the decision referred to paragraphs 29 and 31 of the Affidavit of Reginald Vitnell dated 23 May 2023 not otherwise annexed to the Affidavits of Ellie Grantham and/or Reginald Vitnell dated 23 May 2023 .
(f)All documents recording the awareness asserted in paragraph 34 of the Affidavit of Reginald Vitnell dated 23 May 2023 that the Applicant was “discussing the matter with other employees, was negative, disparaging and was disruptive” and/or that he was concerned about the Applicant’s behaviour, and wanted to discuss the same with her as asserted in paragraphs 34 and 35 therein.
(g)All documents relating to the payment of BNI matters including but not limited to invoices, receipts, records, memos and notes in respect thereof, as well as all correspondence and/or other notes, memos and records of communications thereto, which have not already been provided in the Affidavit of Reginald Vitnell.
Rule 16.16(1) of the GFL Rules provides that:
A party may, by notice in writing, require another party to produce at the hearing of the proceeding a specified document that is in the possession, custody or control of the other party.
The terms of that sub-rule were recently considered by the Court in Lift Shop Pty Ltd v Next Level Elevators Pty Ltd (No 2) [2023] FedCFamC2G 268 (“Lift Shop (No 2)”) at [61]-[65] per Judge Baird where it was observed that:
(a)at [61] that r 16.16 of the GFL Rules is in different terms and narrower terms than the analogous Federal Court rule, which is r 30.28 of the Federal Court Rules 2011 (Cth);
(b)that r 16.16 (1) has to be construed in aid of the objects of both the GFL Rules and the objects set out in s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible;
(c)at [63] the Court considered the meaning of "specified" by reference to dictionary definitions;
(d)at [64] said that, guided by the overarching purpose and the dictionary definitions, considered that the phrase "a specified document" in r 16.16(1) of the GFL Rules “means that the notice to produce must mention or name the document specifically, definitely or explicitly, and if more than one document is sought, the notice must mention or name each such document explicitly, albeit that the amount of detail or particularity with which each mentioned document is set out in the notice to produce may differ from case to case, depending on the circumstances of the instant case”; and
(e)at [65]:
It is well established that a notice to produce cannot be used as a substitute for discovery. To do so would defeat the purpose of the rules in this Court limiting discovery, and not to give full regard to the wording of rule 16.16.
The Court, for present purposes, expresses its agreement with what has been said in Lift Shop (No 2), in particular at [64], as to the meaning of the phrase "a specified document".
In Lift Shop (No 2), the Court went on at [68] to advert to the terms of the notice to produce in issue there, which was prefaced, in all respects, by the phrase "all documents recording or referring to", and at [72], observed that:
A recipient party cannot unilaterally read down a notice that seeks all documents recording or referring to a subject matter, to a specified document. To do so is to invite argument and likely result in further expenditure of time and cost.
and at [74] referred to:
...the inherent want of specificity of the prefatory words ‘all Documents recording or referring to …’ in each paragraph[s of the notice to produce].
In Lift Shop (No 2) the Court went on at [77], by reference to Lowery v Insurance Australia Ltd [2015] NSWCA 303 at [25] per Basten JA, to observe that “it is not the function of the Court to redraft the terms of a subpoena or notice to produce”, and at [78] concluded that the notice to produce should be set aside.
Had the validity of the notice to produce been raised here by the Respondents, as it should have been, or the failure to comply with the notice to produce been raised by Ms Homes, as she was entitled to do and had been invited to do by the Court, the Court's answer would have been that the categories, except for para (d) and the handbook referred to in para (c), were not validly the subject of a notice to produce, and the Court would have ordered that most of the notice to produce be set aside. Mr Sallis, today, quite properly, concedes that the notice to produce was, in any event, defective.
The notice to produce is now, however, no longer relied upon by Ms Homes: instead she has made a general discovery application, essentially, in the same terms, as the Court understands it from the Duong Affidavit, as the notice to produce. That then leads the Court to the issue of discovery.
The FCFCOA Act provides that its objects are, relevantly, “to ensure that justice is delivered by federal courts effectively and efficiently”: s 5(a). That object must be read together with the provisions of the FCFCOA Act relating to the overarching purpose of the civil practice and procedure provisions included in s 190 (1) of the FCFCOA Act that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
The Court notes section 176 of the FCFCOA Act dealing with discovery, which is as follows:
(1) Interrogatories and discovery are allowed in relation to family law and child support proceedings in the Federal Circuit and Family Court of Australia (Division 2).
(2) However, interrogatories and discovery are not allowed in relation to any other proceedings in the Federal Circuit and Family Court of Australia (Division 2), unless the Court or a Judge declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.
(3)In deciding whether to make a declaration under subsection (2), the Federal Circuit and Family Court of Australia (Division 2) or a Judge 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 Court or the Judge considers relevant.
The Court notes that s 176 of the FCFCOA Act is, effectively, in the same terms as s 45 of the former Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”), and the authorities on s 45 of the FCCA Act are applicable to s 176 of the FCFCOA Act, and likewise in relation to s 45 of the former Federal Magistrates Act 1999 (Cth) (“FM Act”).
For the purposes of s 176(3) of the FCFCOA Act, in considering whether to make a declaration as to discovery the Court “must have regard to” whether it is “fair and expedient” to do so. In Australian Fisheries Management Authority v PW Adams Pty Ltd (1995) 61 FCR 314; (1995) 22 AAR 261; (1995) 134 ALR 51 (“Adams”), the Full Court of the Federal Court was dealing with fisheries management legislation and, in particular, a provision which provided at FCR 332 that certain objectives “must be pursued by the Minister and the Authority in the administration of the Act,…and by the Authority in the performance of its functions”.
Each of the five objectives was conjoined by the use of the word “and”. The Full Court of the Federal Court held that the use of the word “must” and the linking of each of the five objectives with the word “and” meant that each objective had to be pursued individually by the Minister and the authority: Adams FCR at 332 per Sheppard J, with whom Tamberlin and Lehane JJ agreed at 334 and 336 respectfully. Adams was followed by this Court, then the Federal Circuit Court, in Eugene Cho Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2020; (2021) 361 FLR 340 at [25] per Judge Lucev in relation to the conjoining nature of “and” for the purposes of various paragraphs in reg 5.19(2) of the Migration Regulations 1994 (Cth). The use of “must” and “and” in s 176(3) of the FCFCOA Act, therefore, indicates that regard must be had to both the criterions of being fair and being expedient in determining whether to allow a declaration for discovery.
Relevant considerations to be taken into account in determining whether to make a declaration that discovery is in the interests of the administration of justice are summarised in Abrahams v Qantas Airways (No.2) [2007] FMCA 639; (2007) 210 FLR 314 (“Abrahams”) at [25]-[26] per Lucev FM, by reference to what was then the FM Act, where the Court said at [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.
and at [26] that:
The categories of relevant factors for the purposes of s 45(2)(b) of the FM Act are obviously not closed.
In Hartnett Legal Services Pty Ltd v Ballantyne [2016] FCA 1116 (“Hartnett Legal Services”), the Federal Court dealt with the issues of relevance and disclosure generally for the purposes of s 45 of the FCCA Act and r 14.02 (2) of the Federal Circuit Court Rules 2001 (Cth), and at [33] per Rangiah J observed that:
Fourthly, it would be quite inconsistent with s 45 of the FCC Act to construe “disclosure generally” as importing a wide test of relevance. The ‘Peruvian Guano’ test was formulated on the basis of a desire to” make the rule as large as we can with due regard to propriety”…. In contrast, s 45 operates to cut down the circumstances in which discovery may be ordered. It would be inconsistent with s 45 to interpret “discovery generally” as referring to the traditional test for discovery when, as Lucev FM observed in Abrahams, traditional discovery is generally prohibited in the Federal Circuit Court.
The Court also notes the observations made by the Federal Court in Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd and Woolworths [2015] FCA 1520 (“Colgate-Palmolive”), where the Federal Court dealt with an application for discovery made in October 2015 in relation to proceedings commenced in December 2013 and in relation to which an eight week trial was due to commence in June 2016 and where the Federal Court observed that the issue of discovery had been raised earlier in February 2014, agitated again in July and August 2014, but no interlocutory application seeking discovery was sought at the latter time, and that the relevant party advised that the issue would be reconsidered after the filing of certain non-expert evidence in that case. Given the delay in seeking discovery and the difficulties that any such order may cause to an existing timetable and hearing date and the added complexity that might arise, the Federal Court held that a discovery order was not warranted. A number of observations might be made in relation to Colgate-Palmolive; first, that although in respect of a much larger case, the discovery sought was limited to a single category of documents; second and, again, although a much longer trial, the trial was eight months away when the Federal Court rejected the discovery application by reason in part of the proximity of the hearing; third, the Federal Court took into account the amount of time which had elapsed between the proceedings commencing and discovery having been first raised and the particular discovery application having arisen in those proceedings.
More recently, in Bonjour v Cachet Holdings Pty Ltd trading as Mulberry Tree Childcare (No. 3) [2023] FedCFamC2G 5 (“Bonjour”), this Court refused to grant discovery seven weeks out from a listed four day hearing in a fair work matter which had been scheduled for hearing much earlier in the piece. In Vinden v Wrong Fuel Rescue Pty Ltd [2019] FCCA 1091 (“Vinden”) at [10]-[13] per Judge Kendall the then Federal Circuit Court observed as follows:
(a)that overall, there is a reluctance in this Court to grant orders for discovery and interrogatories, and referred to Vanden Driesden v Edith Cowan University [2012] FMCA 735; (2012) 269 FLR 422; (2012) 226 IR 452; (2012) 64 AILR 101-754, where the then Federal Magistrates Court had referred to the power to issue interrogatories as one that is “rarely used”: at [64] per Lucev FM;
(b)s 45(1) of the FCCA Act, as it then was, was a general statutory prohibition on discovery; and
(c)that in this Court there appears to be a presumption that the “fair and expeditious conduct of a proceeding does not require discovery”, and referred to the Federal Court's judgment in Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442 at 54 per Lander J.
It follows that discovery is very much the exception and not the rule in the procedure of this Court, and traditional discovery is generally prohibited: Hartnett Legal Services at [33] per Rangiah J; Vinden at [10] per Judge Kendall.
The Court notes that the documents sought to be discovered in this case are probably and to varying degrees relevant, or possibly so, but relevance is no longer the sole test for discovery in this Court: Hartnett Legal Services; Abrahams, and the Court notes, however, that extensive affidavits have already been filed in these proceedings in relation, in particular, by Ms Homes, to the underpayment claim. Ms Homes has filed two affidavits: one on 6 March 2023 which runs to 144 pages; a second on 5 May 2023 running to some 97 pages, including various travel logs and maps and calculations to do with the underpayment claim in particular. The Court notes that there were two other affidavits filed in support of Ms Homes’ case, but neither of those are relevant for present purposes, and neither were ultimately relied upon at the Hearing. The Respondents have also filed two affidavits comprising some 274 pages of material going to the various issues.
The question in relation to discovery, then, is whether, in the circumstances, a declaration for discovery is required to be made in this case and whether it is required for the fair and expeditious conduct of the proceeding.
In the Court's view, it would not be fair, not just to the Respondents but also to the Court and the public interest in dealing with litigation quickly, in circumstances where Ms Homes has closed her case, and where a no case to answer submission is presently being considered by the Court, to allow discovery at this stage.
It is reasonable to infer that, if discovery of the documents had been pressed or the notice to produce had sought to be complied with at the outset of the Hearing, Ms Homes might have run her case differently, as might the Respondents in particular in relation to what was a very extensive cross-examination over at least two days. At the very least, there would have been a different document set in argument, and notwithstanding the arguments of Ms Homes today in respect to fairness, the Court considers that it is unfair to both Ms Homes and the Respondents to now change that document set. Ms Homes would be denied the opportunity to give evidence with respect to those documents unless, of course, she seeks to reopen her case, which may be a possibility. The Respondents are denied the opportunity to cross-examine Ms Homes on those documents in circumstances where it is apparent that some, if not all, of the documents may be relevant to some degree.
It is not fair, also, the Court considers, to order discovery when Ms Homes could and should have raised the matters of non-compliance with the notice to produce at the beginning of the Hearing, as she was invited to do by the Court at the Directions Hearing on 21 April 2033, or alternatively, discovery of documents at the outset of the Hearing, and that unfairness is manifest in circumstances where the Court is now halfway through the Hearing and where two months have elapsed since that Hearing was adjourned part heard.
It would simply be unfair in the circumstances to impose a requirement to provide discovery less than two weeks out from the recommencement of the part heard Hearing: Colgate-Palmolive; Bonjour. Whilst the Court accepts that the Respondents might have also applied to deal with the notice to produce and compliance with it at the outset of the Hearing, it is not the case that the Respondents should now be burdened with a request for discovery halfway through the Hearing when Ms Homes has closed her case and when that request for discovery could have been dealt with at the outset of the Hearing by the Court at the behest of Ms Homes as she was invited to do, but only does so now before the Court very late in the piece. Put differently, in circumstances where it is evidently the case that Ms Homes always thought that these documents were relevant, a declaration for discovery ought not, in present circumstances, be the reward for delay by Ms Homes.
In reaching these views, it should not be thought that the Court has overlooked the relative tightness of the filing schedule which saw the Respondents’ affidavits filed on 23 May 2023 for a hearing commenced on 29 May 2023. That tightness, however, resulted from orders made at the Directions Hearing on 21 April 2023, with the consequence that Ms Homes had to file an amended statement of claim, again late in the piece, to overcome self-perceived deficiencies in her case. Furthermore, the fact that the schedule was so tight was something which Ms Homes’ solicitors were aware of and ought to have been prepared to deal with. And it does not alter the fact that Ms Homes’ solicitors did nothing until the working day before the Hearing by way of raising the issue of non-compliance with a notice to produce and then, inexplicably, and no reason has been posited today, failed to raise the issue at the outset of the Hearing. In addition to which the Court notes, but does no more than that, that Counsel for the Respondents asserts that the issue was in fact raised by him with Counsel for Ms Homes prior to the commencement of the Hearing on Monday, 29 May 2023. It is still inexplicable that, and it is still the case that no reason has been posited for, Ms Homes failure to raise the issue of production or discovery of relevant documents at the outset of the Hearing in circumstances where those documents were obviously perceived to be relevant to her case and were obviously not attached to the Respondents’ affidavits at that time.
It is also not expedient in respect of the conduct of these proceedings that a matter which has been listed since December 2022, which has already run over the original scheduled two days to three days and will now go to, all things being equal, to five days in a fortnight's time, and which are now more than halfway through, should now be the subject of an application for a declaration for discovery by Ms Homes when she has closed her case. Furthermore, it is the case that if discovery is granted, it may be necessary for Ms Homes to seek to reopen her case, and that is certainly not expedient in terms of further cross-examination of Ms Homes, or the timely disposition of these proceedings which, as the Court has already indicated, are now running for a scheduled five days against an original estimate of two.
The discovery of the documents now sought would appear to do nothing to narrow the issues and would not be, in the Court's view, of benefit overall to the litigation. It is also not just a matter of fairness, which was the primary basis for the submission put today by Ms Homes, which were put without reference to any of the relevant statutory provisions, from her perspective but also from the Court's perspective, and which includes consideration of the use of administrative and judicial resources for a further lengthened and possibly reopened hearing. The Court refers in that regard refers to the judgment in Aon Risk Services v Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 (“Aon Risk Services”), particularly in circumstances where apart from its significance to the parties, there is no issue of greater significance or public interest in this case as it presents itself. Overall, the case management issues, which go to the administration of justice, as well as the interests of justice, Aon Risk Services; Genovese v BGC Construction Pty Ltd [2006] FMCA 1507 at [28] per Lucev FM (the interests of the “administration” of justice include the “management” of justice), do not favour the making of a declaration for discovery.
For all of the above reasons the Court has concluded that it would not be fair or expedient to make a declaration that discovery is appropriate in the interests of the administration of justice.
The application in the proceeding will therefore be dismissed and there will be an order accordingly.
In relation to the future conduct of the matter, the Court observes that it is still to hand down Reasons for Judgment on the no case to answer submission, and that may affect the scope of the issues to be determined in these proceedings, including the underpayment claims which appear to be a significant part of the subject matter to which the application for discovery refers. The Court takes the view that the preferable course at this stage would be for Ms Homes to do perhaps what she ought to have done in the first place in accordance with GFL Rules, and that now is, once the no case to answer Reasons for Judgment are handed down, to make a request of the Respondents pursuant to r 14.10 of the GFL Rules for the provision of a copy of any document which is referred to in the Respondents’ affidavits, or the production of the documents for inspection. The Court notes that the timing in relation to that is tight, given that the Hearing is due to resume on 16 August 2023, and it is unlikely that the Court will hand down the no case to answer Reasons for Judgment before the morning of 11 August 2023. Ms Homes’ and the Respondents’ solicitors ought therefore to be on notice that they may need to deal with that matter as a matter of urgency, once the no case to answer Reasons for Judgment are handed down.
With respect to costs, s 570 of the FW Act deals with the issue of costs in fair work proceedings, and it provides that costs may only be ordered in certain circumstances, namely, in section 570(2)(a) and (b) if the Court is satisfied:
(a)that the party that instituted the proceedings did so vexatiously or without reasonable cause; or
(b)that a party's unreasonable act or omission caused the other party to incur costs.
The Respondents have indicated this morning that they seek that any costs order be made pursuant to r 22.06 of the GFL Rules against Ms Homes solicitors personally, alternatively, costs generally against Ms Homes.
The application in a proceeding for discovery cannot be said to have been vexatiously instituted where the notice to produce had not been complied with. With respect to the question of whether or not it was instituted without reasonable cause, the Court notes that in the Australian Workers Union v Leighton Contractors Proprietary Limited (No 2) [2013] FCAFC 23; (2013) 232 FCR 428, the relevant question was held by the Full Court of the Federal Court to be whether the proceeding had any reasonable prospect of success at the time it was instituted, not whether it ultimately failed. In Fair Work Ombudsman v Austrend International Pty Ltd [2018] FCA 171 in relation to an application by the Fair Work Ombudsman for summary judgment in circumstances where an employee had resigned after agreeing to a monetary settlement the Federal Court held that the Fair Work Ombudsman should have known that that part of the claim could not succeed and should not have been brought. Alternatively, the act of bringing the application in a proceeding and arguing it was an unreasonable act which has plainly caused the Respondents to incur costs unnecessarily.
In this case, it is evident from the submissions made by Mr Sallis for Ms Homes today, and from the application in a proceeding itself, that Ms Homes’ solicitors are unaware of the statutory provisions concerning discovery and the extensive case law to which the Court has referred, and that lack of awareness is one of the reasons why the Court has referred to and set out the relevant case law with respect to discovery in this Court. The Court is inclined to the view that, had Ms Homes’ solicitors been aware of that case law, that it is unlikely that the application in a proceeding for a declaration for discovery would have been made.
There is a very fine line in this case, and had it not been, perhaps, for the failure of Ms Homes’ solicitors to be aware of and refer to the relevant statutory provisions, the Court might have thought that this case fell on the non-costs side of the line. But that failure to have regard to or seemingly have any knowledge of a fundamental matter with respect to discovery in this Court, is such that this case, in the Court's view, now falls on the costs side of that line as an unreasonable act causing the incurring of costs by the Respondents, and it is appropriate that the Respondents be paid the costs of meeting the application in a proceeding for discovery. Those costs should be paid by Ms Homes, and not her solicitors personally. There will be an order accordingly.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 10 August 2023
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