Jack v CoreStaff NT Pty Ltd

[2020] FCA 973

FEDERAL COURT OF AUSTRALIA

Jack v CoreStaff NT Pty Ltd [2020] FCA 973

File number(s):

NSD 2162 of 2018

Judge(s):

BROMWICH J

Date of judgment:

10 July 2020

Catchwords:

PRACTICE AND PROCEDURE – application for notice to produce to be set aside – where applicant alleges no legitimate reason to issue notice – whether additional discovery more appropriate to seek documents – where information necessary to ascertain the identity of potential group members – where affidavit based on information and belief stated no such documents existed – where such documents subsequently produced – where further affidavit evidence provided – where no evidence adduced to establish non-existence of documents – objection upheld in part – application otherwise dismissed

Legislation:

Evidence Act 1995 (Cth) s 69(4)

Federal Court of Australia Act 1976 (Cth) s 37M(1)

Cases cited:

Ceramic Fuel Cells Ltd (in liq) v McGraw-Hill Financial Inc [2016] FCA 401; 245 FCR 340

FUD18 v Minister for Home Affairs [2019] FCA 1858

McGrath v HNSW Pty Ltd [2015] FCA 442; 232 FCR 532

Date of hearing:

Determined on the papers

Date of last submissions:

6 May 2020

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

14

Counsel for the Applicants:

Mr J J Fernon SC, Mr J C Conde

Solicitor for the Applicants:

DLA Piper Australia

Counsel for the Respondent:

Mr S J Maybury

Solicitor for the Respondent:

Levitt Robinson Solicitors

ORDERS

NSD 2162 of 2018

BETWEEN:

ALOIS JACK

First Applicant

PETER GULI

Second Applicant

ASRON PORA (and others named in the Schedule)

Third Applicant

AND:

CORESTAFF NT PTY LTD ACN 129 495 263

Respondent

JUDGE:	BROMWICH J
DATE OF ORDER:	10 JULY 2020

THE COURT ORDERS THAT:

1.The application to set aside the notice to produce dated 4 February 2020 be dismissed.

2.The respondent comply with the 4 February 2020 notice to produce in respect of production of the documents relating to Mr Derek Gideon, as well as those relating to former employees in respect of whom the respondent has already agreed to production of documents.

3.Costs of the application be costs in the cause.

4.The parties be given leave to seek a different costs order at the next case management hearing.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMWICH J:

1. This is an adjudication of an interlocutory application by which the respondent, CoreStaff NT Pty Ltd, seeks to have a notice to produce issued by the applicants set aside.  The applicants’ substantive proceeding is a representative action brought on their own behalf and on behalf of group members seeking compensation arising out of prior employment by CoreStaff NT.  A live issue in the proceeding is ascertaining the members of the group.

2. There has been a discovery process by which CoreStaff NT was required to produce employment records for former employees who:

   (1)received a standard form letter in Papua New Guinea (