Jack v CoreStaff NT Pty Ltd

Case [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 (

Continue reading Jack v CoreStaff NT Pty Ltd

Sign in free to access the full text

Details
AGLC
Jack v CoreStaff NT Pty Ltd [2020] FCA 973
Case
[2020] FCA 973
Decision Date

CaseChat Overview and Summary

Jack brought an application against CoreStaff NT Pty Ltd to set aside a notice to produce, contending there was no legitimate reason for the notice. The dispute arose from a class action in which Jack was the proposed lead plaintiff. The Federal Court was tasked with determining the legitimacy of the notice to produce and whether further discovery was a more appropriate method to obtain the required documents.

The court considered the necessity of the documents to ascertain the identity of potential group members, and the reliance on information and belief in the affidavit that no such documents existed. The court noted that the affidavit was based on information and belief, and there was no evidence to substantiate the claim of non-existence. Furthermore, the documents were eventually produced, and additional affidavit evidence was provided. The court found that the application to set aside the notice to produce was dismissed in part, while the respondent was directed to comply with the notice to produce in respect of certain documents.

The court concluded that the application was dismissed, and the parties were granted leave to seek a different costs order at the next case management hearing. The court ordered the respondent to comply with the notice to produce in respect of the documents relating to Mr Derek Gideon, as well as those relating to former employees in respect of whom the respondent had already agreed to produce documents. The costs of the application were to be costs in the cause. The court's decision highlights the importance of providing sufficient evidence to support affidavit statements, and the necessity of complying with discovery orders in class actions.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.