Mabarrack v Healius Pathology Pty Ltd
[2023] FedCFamC2G 922
•17 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mabarrack v Healius Pathology Pty Ltd [2023] FedCFamC2G 922
File number(s): PEG 116 of 2022 Judgment of: JUDGE LUCEV Date of judgment: 17 October 2023 Catchwords: INDUSTRIAL LAW – General protections – alleged contravention – termination of employment
PRACTICE AND PROCEEDURE – Whether leave to amend to include further respondent – whether proposed respondent involved in alleged general protections contraventions
PRACTICE AND PROCEEDURE – Discovery – requirements for declaration concerning discovery – whether any further discovery ought to await filing of affidavits appending documents
Legislation: Fair Work Act 2009 (Cth) ss 361, 550
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 176, 190
Federal Circuit Court of Australia Act 1999 (Cth) s 45
Federal Magistrates Act 1999 (Cth) s 45
Federal Circuit and Family Court of Australia (Family Court) 2021 Rules (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.04, 11.02, 14.10
Federal Circuit Court Rules 2001 (Cth) r 14.02
Federal Court Rules 2011 (Cth) r 20.31
Cases cited: Abrahams v Qantas Airways (No.2) [2007] FMCA 639; (2007) 210 FLR 314
Apotex Pty Ltd (ACN 096 916 148) v Les Laboratoires Servier and Others (No 4) [2010] FCA 1202; (2010) 89 IPR 274
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging (No 3) [2013] FCA 525; [2013] 216 FCR 70
Benjamin v Endeavour Industries Pty Ltd [2012] FMCA 488
Bupa Australia Pty Ltd v iSelect (No 2) [2012] FCA 1277
Canstruct Pty Ltd v Project Sea Dragon Pty Ltd (No 3) [2023] FCA 905
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50
Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442
Fair Work Ombudsman v Northcoast Security Services Group Pty Ltd and Another [2016] FCCA 249
Giorgianni v The Queen (1985) 156 CLR 473; (1985) 59 ALJR 461; (1985) 16 A Crim R 163
Hartnett Legal Services Pty Ltd v Ballantyne [2016] FCA 1116
John Holland Pty Ltd v Comcare [2009] FCAFC 127; (2009) 112 ALD 405; (2009) 460 ALR 106; (2009) 190 IR 165
Lukies v S2V Consulting Pty Ltd [2018] FCCA 1431; (2018) 333 FLR 226
Revill v John Holland Group Pty Ltd [2022] FCAFC 178; (2022) 295 FCR 269; (2022) 321 IR 30
Sabapathy v Jetstar Airways [2021] FCAFC 25; (2021) 283 FCR 348
Sienkiewicz (as Trustee for the Sienkiewicz Superannuation Fund) v Salisbury Group Pty Ltd [2013] FCA 977
Slattery v Canard Consolidated Pty Ltd (No 2) [2023] FedCFamC2G 499
Slattery v Canard Consolidated Pty Ltd [2023] FedCFamC2G 198
Swevenings Pty Ltd v Ferguson Consolidated Holdings Pty Ltd and Another (No 4) [2009] FMCA 291
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
Wayne & Dillon & Another [2008] FamCAFC 204
Whitby v ZG Operations Australia Pty Ltd (No 2) [2019] FCA 201
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of last submission/s: 21 April 2023 Date of hearing: 21 April 2023 Place: Perth Counsel for the Applicant: Cav M Saraceni Solicitor for the Applicant: Bartlett Workplace Lawyers and Consultants Counsel for the Respondents: Mr J McLean Solicitor for the Respondents: Kingston Reid Lawyers ORDERS
PEG 116 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GERARD MABARRACK
Applicant
AND: HEALIUS PATHOLOGY PTY LTD
First Respondent
JOHN MCKECHNIE
Second Respondent
IAN MCPHAN (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
17 OCTOBER 2023
THE COURT ORDERS THAT:
1.The Applicant’s application in a proceeding filed 1 February 2023 be dismissed, save as to costs which, if any, are to be reserved.
2.Prior to the matter being referred for mediation in accordance with order 3 of the Court’s Orders of 3 February 2023:
(a)the Applicant is to file and serve any evidence in chief in support of the application on affidavit by 17 November 2023; and
(b)the Respondents are to file and serve any evidence in chief in oppositio2n to the application on affidavit by 17 December 2023.
3.Any document referred to or mentioned in an affidavit filed pursuant to order 2 is to be annexed to the affidavit.
4.If the mediation referred to in order 3 of the Court’s Orders of 3 February 2023 and order 2 above does not resolve the matter there be a further directions hearing before Judge Lucev on a date to be fixed.
5.The matter be provisionally listed for hearing on 3, 4, 5, 6 and 9 September 2024.
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
JUDGE LUCEV
INTRODUCTION
In these proceedings the applicant, Gerard Mabarrack (“Mr Mabarrack”), alleges various contraventions of the provisions of the Fair Work Act 2009 (Cth) (“FW Act”) and breach of contract by the respondents, namely his former employer Healius Pathology Pty Ltd (“Healius Pathology”) and various other respondents alleged to be accessorially liable under the provisions of s 550 of the FW Act, in relation to his employment with Healius Pathology, and the termination of that employment on 11 January 2022.
These Reasons for Judgment, however, concern an application in a proceeding filed by Mr Mabarrack on 1 February 2023 (“Application in a Proceeding”) seeking orders as follows (reproduced unaltered):
1.Dr Malcolm Parmenter [(“Dr Parmenter”)] be joined as a Respondent in this matter in accordance with Rule 11.02(2) of the Federal Circuit and Family Court (Family Court) Rules 2021;
2. Dr Malcolm Parmenter be designated as the Seventh Respondent;
3.The Applicant have leave to amend its General Protections Claim to include Dr Malcolm Parmenter as the Seventh Respondent in terms of the attached Claim form 2;
4.The Applicant have leave to amend its Originating Application to include Dr Malcolm Parmenter as the Seventh Respondent in terms of the attached Application form;
5.The Applicant have leave to amend its Statement of Claim in terms of the attached Proposed Amended Statement of Claim;
6.The Proposed Amended Statement of Claim stand as the Amended Statement of Claim in this matter;
7.The Seventh Respondent have leave to file his Defence within two (2) weeks of the date of this Order;
8.The Respondents provide discovery on affidavit (and inspection) of documents listed in the attached Schedule of Documents Requested in accordance with section 176(2) of the Federal Circuit and Family Court of Australia Act 2021 within four (4) weeks of the date of this Order;
9.A further mediation be held at a date to be fixed after the provision of discovery and inspection;
10.Costs, if any, be reserved; and
11.Such other order(s) as the Court determines.
On 3 February 2023 the Court made the following orders by consent:
1. The Directions Hearing listed for 3 February 2023 be vacated.
2. The interlocutory application filed on 1 February 2023 (Application) be set down for hearing on a date not before 21 February 2023.
3.On a date not before this Honourable Court hands down its decision in relation to the Application, the matter be referred to a Registrar of the Court for mediation.
4.The parties have liberty to apply on three (3) days’ notice.
Order 3 of the consent orders of 3 February 2023 renders otiose order 9 as sought in the Application in a Proceeding, but, as set out below, the Court has made other procedural orders as to the steps to be taken prior to further mediation by a Registrar of the Court.
In essence, what is now therefore sought in the Application in a Proceeding by Mr Mabarrack is:
(a)to add the Managing Director and Chief Executive Officer of the sixth respondent, Healius Limited (“Healius”), Dr Malcolm Parmenter (“Dr Parmenter”) as the seventh respondent to the proceedings and for consequential amendments to the originating application and Claim Form 2, filed 17 June 2022, and the Substituted Statement of Claim, filed 8 August 2022; and
(b)orders for discovery and inspection of a list of categories of documents.
SHOULD DR PARMENTER BE ADDED AS THE SEVENTH RESPONDENT?
Mr Mabarrack’s submissions
In oral submissions in support of the joinder of Dr Parmenter as the seventh respondent it was submitted by Mr Mabarrack that:
(a)Dr Parmenter was at all material times the Managing Director and Chief Executive Officer of Healius, the parent company of the first respondent, Healius Pathology;
(b)Dr Parmenter is already mentioned in the pleadings in relation to some matters in which he was involved;
(c)Mr Mabarrack was the head of the Western Australian branch of Healius Pathology when Mr Mabarrack was terminated on 11 January 2022;
(d)Dr Parmenter became involved on about 14 December 2021, directly, in relation to labour reduction costs and requiring that Mr Mabarrack do certain things as the Western Australian head of business for Healius Pathology;
(e)the reasons for termination of Mr Mabarrack have changed, and most recently at [118] of the Defence refer to, first, poor performance, and, second, Mr Mabarrack’s undermining of senior management, both of which are new allegations in circumstances where the letter of termination was silent on the reasons for termination;
(f)given Mr Mabarrack’s position as the head of the Western Australian branch of Healius Pathology, there were only a limited number of people above him in the hierarchy, and that hierarchy ended with Dr Parmenter in his capacity as the Chief Executive Officer and Managing Director of Healius;
(g)a further reason for termination of Mr Mabarrack is an alleged failure to adhere to delegations of authority that Mr Mabarrack had;
(h)the reasons for termination in the Defence are not consistent with what Mr Mabarrack was told at a meeting to terminate his employment;
(i)the reasons for termination of Mr Mabarrack now given at [118] of the Defence are also not consistent with what Healius Pathology put in its response to Mr Mabarrack’s Fair Work Commission application (“FWC and “FWC Application” respectively) preceding the application to this Court;
(j)Dr Parmenter first became involved on about 14 December 2021 in a meeting talking about labour costs reduction, at which Mr Mabarrack made a presentation about his proposals for Western Australia in that regard: see Substituted Statement of Claim at [108]-[109];
(k)Dr Parmenter also became involved in relation to an investigation into Mr Mabarrack’s actions towards an employee when Healius Pathology had to move premises, an employee whom Mr Mabarrack allegedly failed to consult with respect to her new office, and in relation to which, following an investigation and report by an external legal firm, Mr Mabarrack was found to have acted inappropriately, and that it was recommended by the external legal firm that the minimum penalty Mr Mabarrack was to be given was to have a notation put on his record to the effect the he had to be better in terms of his awareness in dealing with people management type issues;
(l)Mr Mabarrack filed an internal appeal against the findings in the external legal report, and says he had been warned by the second and third respondents, Mr McKechnie and Mr McPhan that if he did so there would be consequences;
(m)Mr Mabarrack’s appeal against the findings of the external law firm was dismissed, and the penalty imposed was increased so that he had to have regular sessions with the third respondent, Mr McPhan, in relation to how to deal with people management issues, but Mr McPhan then went on annual leave;
(n)around Christmas 2021 Mr Mabarrack then sent a letter to Mr McKechnie and Mr McPhan, copied to Dr Parmenter (“December 2021 Letter”), saying that he thought that he was being inappropriately dealt with;
(o)following the raising of the labour reduction costs issue and the sending of the letter concerning his alleged inappropriate treatment, Mr Mabarrack (who had annual leave organised, and was about to undergo surgery for which he had been given sick leave in advance for January 2022) had his services terminated;
(p)Mr Mabarrack alleges that Dr Parmenter was “intimately involved”: Transcript, page 6, on the basis of his involvement in the labour costs reduction issue and a suspension of Mr Mabarrack’s delegations of authority: Substituted Statement of Claim at [108]-[109];
(q)it was only when the December 2021 Letter was sent, a letter into which Dr Parmenter was copied, that things changed quickly and Mr Mabarrack was terminated, with the letter of termination containing no reasons for the termination;
(r)Mr Mabarrack alleges that he had a good working relationship with Mr McKechnie and Mr McPhan, but that changed with Dr Parmenter’s involvement in the labour costs reduction issue and as a consequence of Dr Parmenter being copied into the December 2021 Letter, and it is those matters on which Mr Mabarrack relies to substantiate the accessorial liability against Dr Parmenter: Transcript, page 7;
(s)the inference to be drawn, in the circumstances, is that there was a sudden change in attitude following Dr Parmenter becoming involved in the matter, and his being copied into the December 2021 Letter; and
(t)the factors relevant to whether to join Dr Parmenter are set out in the Court’s judgment in Lukies v S2V Consulting Pty Ltd [2018] FCCA 1431; (2018) 333 FLR 226 (“Lukies”).
Respondents’ submissions
In relation to joinder the respondents’ oral submissions were that:
(a)the onus to demonstrate that there is a proper basis for an individual person to be joined on the basis of alleged accessorial liability is one that sits with the moving party, here Mr Mabarrack;
(b)the case against Dr Parmenter rises no higher than the fact that:
(i)he attended a meeting on 14 December 2021 to discuss commercial matters (the labour costs reductions);
(ii)he was copied into the December 2021 Letter sent by Mr Mabarrack of Mr Mabarrack’s own volition, and not solicited by Dr Parmenter; and
(iii)some three weeks later Mr Mabarrack’s employment was terminated;
(c)there has been no articulation of why it is said that there is a reasonable basis for apprehending that Dr Parmenter not only was involved in the termination of Mr Mabarrack’s employment, but also had the requisite state of mind required in order for a person to be found accessorially liable under the FW Act;
(d)it is not enough for a person to have been involved in the termination of employment of an applicant, as the person sought to be joined must have had the improper or prohibited intent as well; and
(e)if leave were granted for joinder of Dr Parmenter that would involve the filing of a third amended pleading, which would come at some further cost, in circumstances where it is clear from Mr Mabarrack’s affidavit that the decision to not join Dr Parmenter at the outset of the proceedings was a forensic one taken by Mr Mabarrack, and the respondents do not accept the suggestion that there has been any change in the reasons relied upon for the termination of Mr Mabarrack’s employment.
Proposed amendments to the Substituted Statement of Claim concerning the proposed seventh respondent
The principle proposed amendments to Mr Mabarrack’s current pleading, the Substituted Statement of Claim, relating to Dr Parmenter are as follows:
(a)at [16]-[18] of the Proposed Amended Substituted Statement of Claim as follows:
16.At all material times, the Seventh Respondent, Dr Malcolm Parmenter (Dr Parmenter) is, and was, at all material times:
(a) an individual, who is able to sue and be sued;
(b) employed by the Sixth Respondent;
(c) Chief Executive Officer of the Sixth Respondent; and
(d)worked principally from the First Respondent’s premises in the State of New South Wales.
17. The Seventh Respondent’s responsibilities included responsibility for:
(a)Overseeing execution of business and strategy for the Sixth Respondent;
(b) Management of the risk charter of the business;
(c)Ensuring appropriate management and return of shareholder funds; and
(d)Appropriate engagement and compliance relating to staff employment and Fair Work matters.
18.At all material times, in relation to each instance of conduct here attributed to the Seventh Respondent, he was;
(i)acting in his capacity as an officer, employee and/or agent of the Sixth Respondent; and
(ii)engaging in conduct on behalf of the Sixth Respondent as an officer, employee and/or agent of the Sixth Respondent, within the scope of his actual or apparent authority.
(b)at [181]-[186] of the Proposed Amended Substituted Statement of Claim as follows:
181.In the premises, the Seventh Respondent (Dr Parmenter) had actual knowledge of the matters referred to in the preceding paragraphs, particularly paragraphs 81-85 and 101-105.
PARTICULARS
Dr Parmenter’s knowledge arises from, and/or is to be inferred from, the matters set out above and his involvement in those matters set out above.
182.By reason of the matters set out above, the Seventh Respondent intended to participate in the First Respondent’s actions amounting to contraventions of the FW Act alleged herein.
183. By reason of the matters set out above, the Seventh Respondent:
(e) aided, abetted, counselled, or procured;
(f) induced; and/or
(g)was, by his acts or omissions, directly or indirectly, knowingly concerned in or a party to;
(h) the First Respondent’s contraventions of the FW Act alleged herein.
184.By reason of the matters referred to in the preceding paragraph, the Seventh Respondent was involved in the First and Second Respondent’s contraventions of the FW Act alleged herein within the meaning of section 550 of the FW Act and is accordingly deemed to have committed the contraventions of the FW Act himself.
185.On 21 December 2021, the Seventh Respondent was copied into an email from the Applicant to the Third Respondent, which detailed the Removal of Delegations Authority Complaint and the Anti-Bullying Workplace Right. Prior to this, the Applicant and the Third Respondent had agreed upon a number of actions to resolve the investigation and the exercise of the Applicant’s workplace rights. Following the Seventh Respondent being copied into this email, the Applicant was immediately terminated upon returning from his scheduled Annual Leave.
186.By reasons of the matters set out in the preceding paragraph and the paragraphs above, the Seventh Respondent was “involved in” the “adverse action” by the First and Second Respondents against the Applicant, particularly, in the decision to terminate the Applicant for the exercise of his workplace rights.
The matters referred to at [181] in the Proposed Amended Substituted Statement of Claim by reference to [81]-[85] and [101]-[110] of the Proposed Amended Substituted Statement of Claim are as follows:
81.The removal of delegations and requirement to attend regular coaching sessions with the Third Respondent constituted “unreasonable management action” as did the entire disciplinary process from its initiation when the Applicant was informed by telephone by the Second Respondent of the Investigation, the conduct of Ms McCosker during the Appeal and the outcomes imposed which had the character of a penalty for Appealing.
Removal of Delegations Complaint
82.On 20 December 2021, the Applicant emailed the Third Respondent and copied in two other employees of the First Respondent - Ms Cousens, Business Manager and Ms Altham, Business Support Manager, seeking clarification of the details of the transfer of the Delegations of Authority (Delegations of Authority Inquiry).
Particular
Email Applicant to the Third Respondent of 20 December 2021
83.The Third Respondent did not reply to the Delegations of Authority Inquiry (DoA Inquiry Adverse Action).
McKechnie Complaints and Adverse Action
84.On 21 December 2021, the Applicant emailed the Second Respondent and copied in Dr Parmenter, the Seventh Respondent and Chief Executive Officer of the Sixth Respondent, a complaint, including that the Delegations of Authority had been transferred to his direct report, Ms Chrisi Paleos without his knowledge and the removal and transfer of his “Delegations of Authority” constituted unlawful bullying behaviour against him (Removal of Delegations Complaint) and he stated that he reserved his rights to bring a stop bullying application under the FW Act (Anti-Bullying Workplace Right).
PARTICULARS
Email from the Applicant to the Second Respondent of 21 December 2021.
85.On the morning of 22 December 2021, the Applicant had a telephone conversation with the Second Respondent in respect of the matters set out in his email of the previous day on 21 December 2021.
…
101.Although the Applicant had not yet submitted his leave form, he had made it known at work that he and his wife were planning to travel overseas during this period of extended leave later in 2022.
Reduction of Labour Costs
102.Since late 2018, the Sixth Respondent and its subsidiaries, including the First Respondent, had implemented an ongoing across-the-board business focused Sustainable Improvement Programme (SIP) focusing on planned cost reductions to be introduced over time.
103.In respect of the First Respondent, the SIP resulted in an ongoing process to identify synergies, duplication, and inefficiency to reduce operating costs - mostly to be achieved over time by a reduction in labour costs.
104.In June 2021, the National Chief Financial Officer of the Sixth Respondent commented in a WDP Quarterly Business Review Meeting (QBR) that the WDP labour costs in Western Australia were relatively high.
105.The Applicant who had participated in the June 2021 QBR, decided to be pro-active and formed a WDP leadership group to propose and review manageable reductions to labour costs in the business.
106.In about the week of 9 November 2021, the Third Respondent telephoned the Applicant and advised him that the Sixth Respondent’s Chief Financial Officer wanted an action plan for the reduction of labour costs in the WDP business.
107.On 16 November 2021, the Applicant presented a labour reduction plan that he and his team had developed at the WDP Monthly Business Review meeting. The plan forecast that it would be completed by the end of February 2022. This plan was accepted by John McKechnie and Ian McPhan at this meeting.
108.On 14 December 2021, the Applicant participated in a QBR Zoom meeting with, among others, Dr Malcolm Parmenter (the Chief Executive Officer of the Sixth Respondent) the Seventh Respondent; the Chief Financial Officer of the Sixth Respondent, the Second Respondent and the Third Respondent when he verbally presented his proposed labour reduction plan for WDP.
109.At this 14 December 2021 meeting, Dr Parmenter the Seventh Respondent directed the Applicant to rapidly proceed with Phase 1 of his proposed labour reduction plan (to reduce approximately 45 FTE positions) and proceed with caution with Phase 2 of the labour reduction plan (to further reduce approximately 40 FTE further positions).
110.Following Dr Parmenter’s the Seventh Respondent’s 14 December direction to proceed to implement the proposed labour reduction plan , the Applicant participated in several discussions with various members of the First Respondent’s team during mid to late December 2021 to effect the implementation.
Legislation and cases
Rule 11.02 of the Federal Circuit Court and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“GFL Rules”) provides as follows:
(1) A party to a proceeding may include any person as a party by:
(a) naming the person as a party in the application, response or reply; and
(b)serving on the person a copy of the application, response or reply and all other relevant documents filed in the proceeding.
(2)A party must not include a person as a party after the first court date without the leave of the Court.
(3)The Court may at any time order a party who has included a person as a party to file and serve on each other party to the proceeding an affidavit setting out the basis on which the person has been included.
Albeit that the Application in a Proceeding erroneously refers to the Federal Circuit and Family Court of Australia (Family Court) 2021 Rules (Cth), the proposal to add Dr Parmenter is sought as a consequence of r 11.02(2) of the GFL Rules which requires leave of the Court for a person to be included as a party after the first court date.
In Slattery v Canard Consolidated Pty Ltd [2023] FedCFamC2G 198 (“Canard Consolidated (No 1)” at [21] per Judge Symons the Court referred to Lukies and said that the following principles can be established from the analysis of the relevant authorities in Lukies:
(a)whether or not to grant leave is a matter within the discretion of the Court having regard to all the circumstances of the case, and the discretion to join a new party is a wide one: Apotex Pty Ltd (ACN 096 916 148) v Les Laboratoires Servier and Others (No 4) [2010] FCA 1202; (2010) 89 IPR 274 at [8] per Bennett J;
(b)in exercising discretion it is relevant to have regard to the objects of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCA Act”), including that the Court is intended to operate in as informal a manner as possible in the exercise of judicial power, that it is not to be protracted in its proceedings, that it is to resolve proceedings justly, efficiently and economically using streamlined procedures and that it is to avoid undue delay, expense and technicality: Swevenings Pty Ltd v Ferguson Consolidated Holdings Pty Ltd and Another (No 4) [2009] FMCA 291 at [31] per Lucev FM;
(c)under r 11.02(1) of the GFL Rules a party may include another party to a proceeding in certain circumstances, notwithstanding they may not be a necessary party: Benjamin v Endeavour Industries Pty Ltd [2012] FMCA 488 (“Endeavour Industries”) at [13] per Jarrett FM; Fair Work Ombudsman v Northcoast Security Services Group Pty Ltd and Another [2016] FCCA 249 (“Northcoast Security Services”) at [8] per Judge Manousaridis;
(d)questions involved in an existing action include questions arising out of the transaction or factual matrix upon which the cause of action was based, and including the question of whether, if an original respondent is not liable to compensate an applicant for damages suffered by the applicant, whether some other person proposed to be added as a party may be considered liable: John Holland Pty Ltd v Comcare [2009] FCAFC 127; (2009) 112 ALD 405; (2009) 460 ALR 106; (2009) 190 IR 165 at [21] per Sundberg, Edmonds and Tracey JJ;
(e)an applicant seeking to join another party must demonstrate an arguable case, not a prima facie case: Northcoast Security Services at [11] per Judge Manousaridis; Wayne & Dillon & Another [2008] FamCAFC 204 at [17] per Warnick J; and
(f)the exercise of the discretion under r 11.02(2) of the GFL Rules might also be influenced by other factors, particularly issues such as case management and delay: Canard Consolidated (No 1) at [21(g)] per Judge Symons; Lukies at [93] per Judge Lucev.
In Slattery v Canard Consolidated Pty Ltd (No 2) [2023] FedCFamC2G 499 (“Canard Consolidated (No 2)”) at [25]-[28] per Judge Symons the Court further observed that r 11.02 of the GFL Rules:
(a)provides the Court with an unfettered discretion to grant leave to join a party, a discretion to be exercised judicially and having regard to all of the circumstances of the case: citing Endeavour Industries at [15] per Jarrett FM;
(b)is sufficiently wide to include circumstances provided for by the rules of other courts for the joinder of parties who are not necessary parties, but deference to any such rules ought not to come at the expense of the objects of the FCFCA Act, or the overarching purpose set out in r 1.04 of the GFL Rules, one such set of circumstances being where all rights of relief claimed against the person sought to be joined arise out of the same transaction or factual matrix giving rise to the claims for relief the person seeking joinder has against an existing party: citing Northcoast Security Services at [8] per Judge Manousaridis;
(c)entails the following considerations that might be relevant to the determination of an application for leave to join a person as a respondent to a proceeding:
(i)the purpose of the joinder;
(ii)any delay in making the application for the joinder and the explanation for the delay; and
(iii)whether any relevant period of limitation has passed,
citing Endeavour Industries at [16] per Jarrett FM; and
(d)requires that, ordinarily, an applicant for joinder must show an arguable case against the parties proposed to be joined, at least at the standard of being able to resist an application for summary judgment: citing Bupa Australia Pty Ltd v iSelect (No 2) [2012] FCA 1277 at [23] per Dodds-Streeton J and Sienkiewicz (as Trustee for the Sienkiewicz Superannuation Fund) v Salisbury Group Pty Ltd [2013] FCA 977 at [38] per Robertson J.
In considering the conduct and case management of this matter it is necessary to have regard to s 190 of the FCFCA Act which provides as follows:
(1)The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
(2)Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court's overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3)The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4)The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court;
(b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).
Regard must be had also to r 1.04 of the GFL Rules which provides as follows
(1)The overarching purpose of these Rules, as provided in section 190 of the Act, is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
(2) To assist the Court, the parties must:
(a) avoid undue delay, expense and technicality; and
(b) consider options for primary dispute resolution as early as possible.
(3) If appropriate, the Court will help to implement primary dispute resolution.
Mr Mabarrack seeks to make Dr Parmenter liable for certain alleged contraventions pursuant to the accessorial liability provisions in s 550 of the FW Act which provide as follows:
(1)A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2)A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
In a cause of action based on s 550 of the FW Act actual knowledge of the essential matters going to make up the relevant events is required, that is, it is a material fact and has to be pleaded: Canard Consolidated (No 2) at [32] per Judge Symons; Sabapathy v Jetstar Airways [2021] FCAFC 25; (2021) 283 FCR 348 at [29] per Logan and Katzmann JJ, and noting that in a case where civil penalties are sought and an order has been made for the case to proceed by pleadings, the rules of pleading should be applied: at [42] per Logan and Katzmann JJ.
Where it is pleaded for the purposes of s 550(2)(c) of the FW Act that a person was “knowingly involved” in an FW Act contravention, and was thus liable accessorially under s 550 of the FW Act, such an allegation “must be pleaded very carefully”: Canard Consolidated (No 2) at [31] per Judge Symons, noting the approach of the Federal Court in Whitby v ZG Operations Australia Pty Ltd (No 2) [2019] FCA 201 at [29] per Thawley J where the Federal Court said that:
(a)a pleading that a person is “knowingly concerned” in a contravention is a serious one, akin to a pleading of dishonesty; and
(b)the material facts said to establish that the person was knowingly concerned in the contravention must be pleaded, including:
(i)express identification of the elements of the contravention;
(ii)express pleading that the person had knowledge of each of the elements constituting the contravention;
(iii)identification of material facts said to establish knowledge or from which such knowledge is to be inferred; and
(iv)generally, should also identify the material facts said to constitute the relevant acts or omissions of the person which are relied upon to establish any practical connection with or link to the contraventions contended to establish that the person was “knowingly concerned”.
In Revill v John Holland Group Pty Ltd [2022] FCAFC 178; (2022) 295 FCR 269; (2022) 321 IR 30 at [88] per Feutrill J it was said that allegations of involvement in a contravention under s 550 of the FW Act “are serious and tantamount to allegations of dishonesty”, must be pleaded clearly and with particularity, and identify which, if any, of the paragraphs of s 550(2) of the FW Act are alleged to be the grounds of the alleged involvement, and plead the material facts and particulars necessary to plead reasonably arguable causes of action for involvement on one or more of the grounds in s 550(2) of the FW Act.
The Court notes that for the purposes of accessorial liability under s 550 of the FW Act it is Mr Mabarrack who carries the onus of proving that Dr Parmenter had knowledge of the essential facts concerning the alleged contraventions, and that Mr Mabarrack does not have the benefit of the provisions in s 361 of the FW Act which do not apply to accessorial liability: Giorgianni v The Queen (1985) 156 CLR 473; (1985) 59 ALJR 461; (1985) 16 A Crim R 163; CLR at 506 per Wilson, Deane and Dawson JJ; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50 at [59] per Greenwood, Flick and Rangiah JJ; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging (No 3) [2013] FCA 525; [2013] 216 FCR 70 at [240]-[241] per Murphy J.
Although a plethora of workplace rights and complaints and inquiries are alleged by Mr Mabarrack, and are said to give rise to various adverse actions by various of the respondents, it appears that the primary matters that it is alleged that Dr Parmenter was involved in are:
(a)the labour costs reduction issue;
(b)the penalty appeal issue, which arose from Mr Mabarrack’s alleged inappropriate behaviour towards an employee in relation to consultation on an office move; and
(c)the termination of Mr Mabarrack’s employment with Healius Pathology.
It is also relevant to note the Defence at [118] which was referred to in Mr Mabarrack’s submissions, and which provides as follows:
118.The Respondents object to pleading to paragraph 118 on the basis that it is vague, embarrassing, and liable to be struck out. Under cover of that objection, the Respondents deny each and every allegation in paragraph 118, and say that the only substantial and operative reasons for the termination of the Applicant's employment were:
(a) the Applicant's poor performance;
(b) the Applicant's undermining of senior management; and
(c) the Applicant's failure to adhere to his delegations of authority.
It is pertinent to observe that the Defence at [118] is responding to the Substituted Statement of Claim at [118] which provides, somewhat inelegantly, as follows (reproduced unaltered):
118.The Applicant’s employment was terminated at the initiative of the First Respondent because or because of reasons including that:
(a)one or more or because of an aggregation of some or all of the “workplace rights” exercised by him since about mid October 2021; and/or
(b)It wanted to prevent the Applicant from taking the scheduled Sick Leave absence from 13 January 2022 (Proposed Sick Leave Workplace Right); and/or
(c)It wanted to prevent the Applicant from taking his accrued long service leave (Proposed LSL) and/or
(d)It wanted to prevent him from receiving his entitlement to incentive payments for FY 2021/2022.
The factual basis for seeking to add Dr Parmenter as the seventh respondent is set out in an affidavit filed by Mr Mabarrack on 1 February 2023 in support of the Application in a Proceeding (“Mabarrack February 2023 Affidavit”) where at [17]-[22] Mr Mabarrack said as follows:
17.I did not join Dr Parmenter when I initially brought this claim because my sole knowledge of his involvement at that time was that I had copied him into the 21 December 2021 email chain and things changed after that. Although I did have my suspicions that Dr Parmenter would have been involved due to the timing and sequence of events, I had no hard evidence to support this.
18.Since that time, there have been developments which I believe support my belief that Dr Parmenter was directly involved in the decision to terminate my employment before implementation of the disciplinary outcomes.
19.First, the Respondents have changed their reasons for termination of my employment several times. On 11 January 2022, at the beginning of my termination meeting the Second Respondent said that the reason for my termination was my “not following instructions” and also that “the business wasn’t going well”. However, later that day, the termination letter sent to me listed no reasons for the termination of my employment. Attached and marked Annexure GM-3 is a true copy of this termination letter.
20.Secondly, in the Respondents’ Form 8A lodged on 22 February 2022, the stated reasons for my termination was that I caused the business to incur unreasonable labour costs in the period July 2021 until December 2021; that I had advised at least one member of my team that it was unnecessary to reduce labour costs as directed by Dr Parmenter, and that I had signed documents in which I was uncertain if I had the requisite authority to do so. Attached and marked Annexure GM-4 is a true copy of this Form 8A lodged in the Fair Work Commission.
21.Thirdly, on 12 September 2022, the Respondents filed their Defence in these proceedings but did not specify or refer in any way to the above stated reasons. Instead, the Respondents stated three new reasons as the only substantial and operative reasons for the termination of my employment. One such reason was my “undermining senior management”. I understand that this relates to copying Dr Parmenter into my complaint emails of 21 December 2021 and 22 December 2021. I have sought clarification from the Respondents regarding the meaning of “undermining senior management”, however, at the time of swearing this affidavit, no clarification has been put forward, nor has any detail or document been provided by the respondents’ representatives to demonstrate that Dr Parmenter was not involved in the decision to terminate my employment.
22.Fourthly, the short and long term bonus arrangements that were benefits of my contract of employment were offered and administered by the Sixth Respondent and Dr Parmenter was and remains as at the date of swearing this affidavit, the most senior employed person of that public company.
It is relevant to observe that Mr Mabarrack considered joining Dr Parmenter when the application in this matter was originally filed on 17 June 2022. Mr Mabarrack did not do so because he had “no hard evidence to support” his “suspicions”: Mabarrack February 2023 Affidavit at [17], that Dr Parmenter was involved.
Mr Mabarrack made reference to the fact that as General Manager – Western Diagnostic Pathology, he was the most senior employee of Healius Pathology in Western Australia: Mabarrack February 2023 Affidavit at [4]-[5], as supporting his argument that Dr Parmenter must have had knowledge or been involved in the termination of Mr Mabarrack’s employment. The mere fact, however, that Dr Parmenter was the Managing Director and Chief Executive Officer of Healius, the parent company of Healius Pathology, is not sufficient to establish a sufficiently arguable case of involvement on the part of Dr Parmenter in the termination of Mr Mabarrack’s employment or any of the other alleged contraventions. Healius was a separate corporate entity to Healius Pathology, and there is insufficient material in either the pleading or Mr Mabarrack’s February 2023 Affidavit to establish a sufficiently arguable case that Dr Parmenter, in his capacity as Managing Director and Chief Executive Officer of Healius, was involved in any aspect of any of the alleged contraventions by Healius Pathology, including the termination of Mr Mabarrack’s employment. It does not follow that merely because Mr Mabarrack was a senior employee, and apparently the most senior employee, of Healius Pathology in Western Australia, that the Chief Executive Officer of the parent company would have been involved in the termination of Mr Mabarrack’s employment (or any of the other alleged adverse actions taken against Mr Mabarrack). That conclusion is reinforced by the fact Mr Mabarrack otherwise pleaded that the adverse actions were undertaken by senior employees of Healius Pathology, and in particular the second, third and fifth respondents, Mr McKechnie, Mr McPhan and Ms Brenchley, who were, respectively, the Chief Executive – Pathology, the Chief Operating Officer and the acting Human Resources manager of Healius Pathology, and who were allegedly involve in the meeting at which Mr Mabarrack’s employment was terminated.
In relation to the reasons for termination of Mr Mabarrack’s employment having changed that is not something of which it can be said that there is any evidence at all that Dr Parmenter had any involvement: either in relation to the reasons given at the time of Mr Mabarrack’s termination of employment, or in the drafting of the letter, signed by Mr McKechnie, terminating Mr Mabarrack’s employment, which did not provide any reasons for the termination of employment (the letter was filed as part of the Claim Form 2). Likewise, nothing in the Defence at [118] links Dr Parmenter to the reasons given for termination of Mr Mabarrack’s employment, or suggests that Dr Parmenter had any knowledge of, or involvement in, the formulation of the Defence or the reasons given for termination of Mr Mabarrack’s employment in the Defence at [118]. The reasons for termination of Mr Mabarrack’s employment given in the Defence at [118] are all matters which, on their face, relate to the undertaking of his role as General Manager – Western Diagnostic Pathology, and in relation to which on the basis of the present pleading and Mr Mabarrack’s February 2023 Affidavit, there is no sufficiently arguable basis for suggesting or inferring that Dr Parmenter was somehow involved or had knowledge of these issues insofar as they then manifested themselves in any adverse action taken against Mr Mabarrack.
It is also relevant to observe that the Defence at [118] is responsive to the Substituted Statement of Claim. The Substituted Statement of Claim asserts termination of Mr Mabarrack’s employment “at the initiative of” Healius Pathology, and not Healius or Dr Parmenter, because of Mr Mabarrack’s exercise of workplace rights since mid-October 2021, or because “It” being a direct reference to Healius Pathology: Substituted Statement of Claim at [[118] (b), (c) and (d)], wanted to prevent Mr Mabarrack from taking sick leave and long service leave, or wanted to prevent Mr Mabarrack from receiving an entitlement to incentive payments for the 2021/2022 financial year.
The Court is simply not persuaded that the changes alleged to have occurred in relation to the reasons for termination of Mr Mabarrack’s employment were matters in which, either as to the changes themselves or the ultimate reasons given, Dr Parmenter was involved. Merely because something has occurred for which Healius Pathology might ultimately be responsible does not mean that the most senior officer of the parent company, Healius, had knowledge of or was involved in those matters, particularly where, as here, it is pleaded that Healius Pathology, and its senior officers, were the ones who were involved in the matters giving rise to the alleged adverse action against Mr Mabarrack, including the termination of his employment
With respect to the assertion that Dr Parmenter was involved in the labour reduction costs issue the Proposed Amended Substituted Statement of Claim and Mr Mabarrack’s February 2023 Affidavit do little more than allege that Dr Parmenter attended a meeting on 14 December 2021 at which Mr Mabarrack made a presentation concerning labour reduction costs. Mr Mabarrack also asserts that the issue of labour reduction costs was taken into account in conjunction with his forwarding of the December 2021 Letter to Dr Parmenter, which then led to his termination on 11 January 2022. The December 2021 Letter was sent to the second and third respondents, Mr McKechnie and Mr McPhan, and copied to Dr Parmenter. Aside from his attendance at Mr Mabarrack’s presentation on 14 December 2021 and the copying of the December 2021 Letter to Dr Parmenter there is no other pleaded or alleged factual basis for suggesting that Dr Parmenter was involved in any of the alleged adverse actions arising from the labour reduction costs meeting or the copying of the December 2021 Letter to Dr Parmenter, or in relation to the alleged adverse action by way of termination of Mr Mabarrack’s employment. Merely because Dr Parmenter was at a meeting with respect to labour reduction costs is not enough to infer that he was involved in the alleged contravention, referred to therein or arising therefrom. Likewise, and whether individually or in conjunction with the labour reductions costs issue, the fact that he was copied into the December 2021 Letter is not a sufficient basis for inferring Dr Parmenter was involved in any alleged contravention said to arise therefrom.
In relation to the penalty appeal issue, Mr Mabarrack complains that following the initiation of an appeals process against the independent law firms findings concerning Mr Mabarrack’s alleged conduct, that disciplinary measures imposed upon him were increased from a notation on his personal file which would remain there for only 12 months, to a suspension of his delegations of authority for a period of six months, a requirement to participate in regular coaching sessions with Mr McPhan, and the issuance of a formal written warning. Once again, however, there is nothing in the Proposed Amended Substituted Statement of Claim or the Mabarrack February 2023 Affidavit which provides any basis for suggesting that Dr Parmenter (as opposed to Mr McKechnie, Mr McPhan, Ms McCosker (the fourth respondent, and Healius Pathology’s General Manager – People and Culture) or Ms Brenchley) was involved in either the determination of the initial penalty, or the appeal penalty process, or the increased penalty arising out of the dismissal of Mr Mabarrack’s appeal.
In all of the circumstances, the Court is not persuaded on the basis of the Proposed Amended Substituted Statement of Claim, or the evidence in support of this Application in a Proceeding, being Mr Mabarrack’s February 2023 Affidavit, that there is a basis for finding a sufficiently arguable case that Dr Parmenter was involved in the alleged contraventions for the purposes of s 550(2) of the FW Act.
In the circumstances, leave will not be granted pursuant to r 11.02 of the GFL Rules to add Dr Parmenter as a seventh respondent to these proceedings.
DISCOVERY
Documents sought
The thirteen categories of documents in respect of which discovery is sought, from all six of the present respondents, are set out at Schedule 1 of a letter (which is Annexure GM-7 to the Mabarrack February 2023 Affidavit) from Mr Mabarrack’s solicitors to the respondents’ solicitors dated 8 December 2022 (“December 2022 Discovery Request”), and are as follows:
1. Any document referring to the direction to the Applicant to reduce labour costs in or about October 2021 (Labour Reduction Direction).
2. Any document supporting the assertion that the Applicant advised a member of his team to disobey the purported Labour Reduction Direction.
3.Any relevant documents supporting the claim that the Respondent incurred unreasonable labour costs during the period July 2021 until December 2021, contrary to the purported Labour Reduction Direction.
4. Any documents purportedly signed by the Applicant in circumstances “where he was uncertain if he had the requisite authority to do so”.
5.Any correspondence between the Applicant and Respondent relating to the issues raised in the claim or employer response (response generally), including any email/ text or any other document between each Respondent.
6.A copy of the Workdynamics Investigation Report and any related drafts or correspondence.
7.A copy of the actual recording of the interview of Mr Mabarrack by Workdynamics on 7 September 2021 including a copy of the transcript (if any).
8.All documents that relate to Mr Mabarrack’s Sick Leave records on 13 January 2022.
9.All text messages and emails between the individual Respondents relating to Mr Mabarrack throughout the time period of 1 December 2021 through to 13 January 2022.
10.All documents relating to the Appeal conducted by Ms Alexandra McCosker, including the Appeal Report, all drafts of the Report, all communications between Ms McCosker and Mr McPhan, Ms McCosker and Mr McKechnie, Ms McCosker and Ms Penny Brenchley, regarding the Appeal Process, the Appeal Outcome and any related issues
11.All text messages, emails, documents in any form whatsoever relating to discussions between Mr John McKechnie, Dr Malcolm Parmenter, Ms Penny Brenchley, Mr Ian McPhan and any other executive of Healius, regarding the Appeal Outcome, discussions with the Applicant regarding the Appeal process and Appeal Outcome including any documents relating to the “removal of the Applicant’s delegations” and the requirement he undergo coaching every second day with Mr McPhan.
12.All documents relating to the Termination Interview between Mr McKechnie and Mr Mabarrack on 11 January 2021, any notes, emails or texts with Ms Penny Brenchley or any other executive of Healius, all drafts and communications regarding the Termination Letter issued on 11 January 2021 and in any way relating to the reasons for termination.
13.All drafts and related documents regarding the preparation of the Form 8A lodged in the FWC.
The bases for seeking discovery of each of the categories of documents sought is set out in the December 2022 Discovery Request, and are follows:
Category 1
Healius relied upon the Labour Reduction Direction in the Form 8A filed as a Response in the FWC. Mr McKechnie referred to the Applicant not following an “instruction” at the start of the Termination Meeting on 11 January 2022. These matters are disputed by the Applicant.
The documents sought under category 1 are relevant to the background and issues in dispute between the parties.
Category 2
Healius relied upon this issue around the Applicant undermining the Labour Reduction Direction in the Form 8A filed, and one of the reasons relied upon now in the Defence refers to “undermining senior management”. The Applicant disputes the assertion.
The documents sought under category 2 are relevant to the background and issues in dispute between the parties.
Category 3
Healius relied upon this issue around the Applicant incurring unreasonable labour costs between July 2021 and December 2021 in the Form 8A filed, and that assertion is disputed by the Applicant.
The documents sought under category 3 are relevant to the background and issues in dispute between the parties.
Category 4
Healius, Mr McKechnie and Ms McCosker relied on this matter as an outcome of the Appeal, and as the basis for the Decision by Ms McCosker (supported by Mr McKechnie) to remove all of the Applicant’s Delegations of Authority. The basis and Appeal Outcome is disputed by the Applicant.
The documents sought under category 4 are relevant to the background and issues in dispute between the parties.
Category 5
The Healius and Respondent’s responses regarding the reasons for the termination of employment of the Applicant’s employment have changed and will be a significant issue of dispute at trial.
The documents sought under category 5 are relevant to the background and issues in dispute between the parties.
Category 6
The Workdynamics Investigation Report is a critical document to specific issues of “adverse action”, the background and issues between the parties.
The documents sought under category 6 are relevant to the background and issues in dispute between the parties.
Category 7
The Workdynamics Investigation Record of Interview is a critical document to specific issues of “adverse action”, the background and issues between the parties.
The documents sought under category 7 are relevant to the background and issues in dispute between the parties.
Category 8
The Sick Leave Documents relating to Mr Mabarrack’s booked sick leave commencing on 13 January 2022 are relevant documents concerning the Sick Leave Adverse Action and circumstances surrounding the actual reasons for termination of Mr Mabarrack’ s employment on 11 January 2022.
Category 9
The period 1 December 2021 to 13 January 2022 is a critical period concerning the various pleaded “adverse actions” and the actual or operative reasons for the termination of the Applicant’s employment.
The documents sought under category 9 are relevant to the background and issues in dispute between the parties.
Category 10
The Appeal documents relate directly to “adverse action” as pleaded by the Applicant and disputed by the respondents.
The documents sought under category 10 are relevant to the background and issues in dispute between the parties.
Category 11
Mr John McKechnie, Dr Malcolm Parmenter, Ms Penny Brenchley, Mr Ian McPhan and Ms Alexandra McCosker, were all involved in the Appeal Outcome and the increased sanctions applied to the Applicant. Communications around the Appeal Decision and implementation from 21 December 2022 are relevant to the issues in dispute.
The documents sought under category 11 are relevant to the background and issues in dispute between the parties.
Category 12
The matter involves a General Protections Dismissal Dispute and the actual or operative reasons are in dispute, the Respondents having changed those operative reasons on at least 4 occasions since 11 January 2022.
The documents sought under category 12 are relevant to the background and issues in dispute between the parties.
Category 13
The Form 8A lodged on behalf of the respondents on 22 February 2022 contained:
“1 (b) further states that the Applicant’s employment was terminated for the following reasons, and for no other reason:
(1)the Respondent considered Western Diagnostics Pathology (WDP), the business for which the Applicant was the General Manager, to have incurred unreasonable labour costs during the period July 2021 until December 2021;
(2)despite the Respondent directing the Applicant to reduce WDP’s labour costs in or about October 2021, the Applicant did not do so, and instead, advised at least one member of his team that it was unnecessary to do so; and
(3)the Applicant had, by his own admission, signed documents in circumstances where he was uncertain if he had the requisite authority to do so”
These reasons have now been replaced by other reasons as pleaded at paragraph 118 of the Respondents Defence. The documents sought are relevant to the critical issue of the true and operative reason for termination of the Applicant’s employment including the basis and context for filing the Form 8A with the above issue. The matters also go to the credibility of all of the respondents.
Legislation and law
Section 176 of the FCFCA Act provides 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 FCFCA 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 FCFCA Act, and likewise in relation to s 45 of the former Federal Magistrates Act 1999 (Cth) (“FM Act”).
Relevant considerations in determining whether to make a declaration that discovery is in the interests of the administration of justice were summarised in Abrahams v Qantas Airways (No.2) [2007] FMCA 639; (2007) 210 FLR 314 (“Abrahams”) at [25] 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.
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.
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)section 45(1) of the FCCA Act is 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”, referring to 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 practice and procedure of this Court, and traditional discovery is generally prohibited: Hartnett Legal Services at [33] per Rangiah J; Vinden at [10] per Judge Kendall.
SUBMISSIONS
Mr Mabarrack’s submissions on discovery
Mr Mabarrack made the following submissions with respect to discovery:
(a)the statutory considerations are contained in s 176(2) and (3) of the FCFCA Act, and include consideration of whether a declaration for discovery was appropriate in the interests of the administration of justice and likely to contribute to the fair and expeditious conduct of the proceedings, referring to Abrahams;
(b)that the cost of discovery would be borne by Healius Pathology and Healius, and would not be an impost upon the Court’s time;
(c)the categories of documents sought are in the December 2022 Discovery Request (as to which see [35] above);
(d)the documents were relevant to the reasons for termination;
(e)that it was not premature to seek discovery as the next step in the matter would be for the filing of affidavits;
(f)that it would assist with working out the substantive and operative reasons for the termination of Mr Mabarrack’s employment, in circumstances where there are different reasons given at various times for the termination of Mr Mabarrack’s employment;
(g)that discovery cannot be onerous in circumstances where Healius is a $3 Bn corporation and everything ought to be available electronically;
(h)that discovery was within the discretion of the Court to order; and
(i)that discovery was relevant to the various alleged workplace rights referred to in the Proposed Amended Substituted Statement of Claim.
The respondents’ submissions on discovery
The respondents’ submissions in respect of discovery were as follows:
(a)discovery is not by right in this Court, and the power to issue a declaration for discovery is exercised reluctantly and rarely, citing Vinden at [10] per Judge Kendall;
(b)that the stage of proceedings was such that evidence had not yet been filed in proceedings in which Healius Pathology bears the onus of proof in relation to primary liability (because of s 361 of the FW Act);
(c)in circumstances where Mr Mabarrack’s termination of employment is said by Healius Pathology to be based upon a failure to obey a purported labour reduction direction, the documents in categories 1, 2 and 3 are matters in respect of which Healius Pathology will need to advance reasons in their affidavit material and identify documents supporting their reasoning;
(d)in relation to category 4, the category is presently drafted is in such a way that the documents are not able to be identified by Healius Pathology because it requires Healius Pathology to inform itself of Mr Mabarrack’s state of mind at the time when he signed the documents;
(e)further in relation to category 4 Healius Pathology says that it does not actually rely on any particular documents that Mr Mabarrack might have signed, but rather an admission that he is alleged to have provided in the course of discussions that he had signed documents without understanding the requisite authority to do so, and in that sense the documents are not relevant, and discovery of them is not relevant to the proceedings;
(f)category 5 is a request for general discovery on every conceivable issue and every document exchanged between each of the respondents, and it is too broad and onerous;
(g)in relation to categories 6 and 7, that those documents were not relevant, including because the Workdynamics’ Investigation Report, and any interview of Mr Mabarrack by Workdynamics, were related to misconduct and not poor performance as pleaded at [118] of the Defence;
(h)in relation to category 8 that the request is inarticulate, but if it related to the taking of sick leave then it is not relevant as the fact that Mr Mabarrack took sick leave is not in issue;
(i)in relation to category 9 that it goes broader than necessary and is irrelevant to this proceeding;
(j)that category 10 is not well expressed and is unclear insofar as it uses the term “any related issues”, or as to why it is relevant insofar as it picks up aspects of the appeal process in circumstances where it is not in dispute that there was an appeal;
(k)in relation to category 11 that it is cast in terms which are too wide, and where the relevance of other executives of Healius Pathology is not readily apparent;
(l)in relation to category 12 that it is hard to discern what particular documents are requested;
(m)in relation to category 13 that the relevance of draft and related documents in relation to the preparation of forms lodged with the Fair Work Commission is not apparent, and some of the materials may well be privileged;
(n)discovery is not appropriate of any of the categories at this stage, and there are obvious deficiencies with the categories which it is not the respondents’ task to fix;
(o)it is incumbent upon Mr Mabarrack to articulate the categories in a way that relevance and appropriateness can be ascertained;
(p)it is not accepted that discovery would narrow the issues in dispute in any way based on the categories that have been drafted, or that discovery would, at this stage, be conducive to a resolution of the proceedings;
(q)Healius Pathology and the other respondents would be put to significant additional expense; and
(r)that in relation to that expense discovery would not provide the same value as affidavits, particularly if the matter is to proceed to a further mediation.
CONSIDERATION
Mr Mabarrack’s case for discovery was weak. Mr Mabarrack’s submissions as to discovery:
(a)were very general;
(b)focused too much on relevance which is no longer the sole test: Hartnett Legal Services at [33] per Rangiah J; Abrahams at [25] per Lucev FM; and
(c)focused too little on the statutory requirements under ss 176(2) and (3) and 190 of the FCFCA Act, and the matters identified in Abrahams.
Both parties correctly submitted that, because discovery is not ordinarily ordered in this Court, the next step in this matter would ordinarily be the filing of affidavits. That leads to a consideration of whether discovery is necessary in the context of affidavits to be filed in these proceedings, bearing in mind that r 14.10 of the GFL Rules provides for the provision of a copy of, or production of, a document referred in an affidavit filed by a party. Given, as the respondents pointed out in submissions, that at hearing the onus under s 361(1) of the FW Act will, generally speaking, require Healius Pathology to advance reasons and identify documents in support of their reasons for taking the alleged adverse action against Mr Mabarrack, it can reasonably be expected that all relevant documents will be appended to affidavits to be filed in these proceedings.
The effect of r 14.10 of the GFL Rules is essentially the same as the intent of r 20.31 of the Federal Court Rules 2011 (Cth) (albeit that the latter deals with both pleadings and affidavits), which has recently been dealt with in Canstruct Pty Ltd v Project Sea Dragon Pty Ltd (No 3) [2023] FCA 905 at [19] per Derrington J (and see also the preceding and succeeding discussion of earlier authority at [10]-[18] and [20]-[26]):
… the rule appears to embrace a notion that, where a party in a pleading or affidavit makes specific reference to a document so as to call it in aid of their case, either for the fact of its existence or for its content, they are required as a matter of basic procedural fairness to produce the document immediately to the other side. In this context, emphasis is appropriately to be placed on the “procedural” nature of the fairness that is to be accorded. A party receiving a pleading or an affidavit is entitled to understand it, and to be able to verify its internal veracity or consistency by reference to both its express words and the documents that it refers to as part of its narrative. That must necessarily be so, given the usual need for parties to respond to pleadings or affidavits prior to the occurrence of discovery in the action.
In the context of this Court’s civil practice and procedure objectives under s 190 of the FCFCA Act it would be a far more efficient use of the parties’ time and resources, and those of the Court, if orders were made for the filing of affidavits to which all documents referred to in such affidavits were to be annexed, thus meeting the intent of r 14.10 of the GFL Rules, rather than have all six present respondents have to engage in an extensive discovery process in relation to multiple categories of documents, many of which are very broadly described, and which might result in the production of many documents of only marginal relevance. A further reason for adopting this course is that the parties have agreed to refer this matter back to mediation. Affidavits with documents annexed are far more likely to be of benefit to the possible resolution of the litigation, in that they will put the Registrar conducting the mediation in a better position to understand the parties’ positions, and the strengths and weaknesses of those positions, as opposed to having no affidavits and no documents filed, which would be the position if there were to be an order for discovery, or even if there was no order as to discovery.
To the extent that there might still be gaps in the provision of documents following the filing of affidavits any such gaps will be far more easily able to be discerned and quickly and efficiently dealt with by the Court against the background of the filed affidavits than would otherwise be the case if there were general discovery of the broad categories of documents now sought by Mr Mabarrack. And, if the documents appended to affidavits give rise to the necessity for further evidence, that is matter that the Court can deal with by ordering the filing of further affidavits.
In circumstances where the Court considers that it is appropriate to order that all parties file evidence in chief affidavits with copies of documents referred to in the affidavits annexed, it is unnecessary to deal seriatim with the submissions made on behalf of the Respondents, save to observe that the Court agrees that relevance is no longer the sole test, and that it agrees that many of the categories of documents sought are either too broadly described, or in terms which are not well articulated, or the relevance of which is not readily apparent, or which may be the subject of legal professional privilege, and in respect of which discovery would not have been ordered in any event. Further, there is nothing to indicate that discovery as sought by Mr Mabarrack is likely to narrow the issues in dispute, or to be of benefit in the litigation, at this stage.
In all the circumstances:
(a)the Court is not satisfied that allowing discovery as sought by Mr Mabarrack would be likely to contribute to the fair and expeditious hearing of this matter, and would not therefore be in the interests of the administration of justice, and the application for discovery pursuant to s 176(2) of the FCFCA Act will not be granted; and
(b)there will, however, be orders for all parties to file their evidence in chief affidavits with copies of any documents referred to in an affidavit to be annexed thereto.
CONCLUSIONS AND ORDERS
The Court has concluded that:
(a)Mr Mabarrack’s application in a proceeding filed 1 February 2023 is to be dismissed, save as to costs which, if any, are to be reserved;
(b)prior to the matter being referred for mediation in accordance with order 3 of the Court's Orders of 3 February 2023:
(i)the Applicant is to file any evidence in chief in support of the application on affidavit by 17 November 2023; and
(ii)the Respondents are to file any evidence in chief in opposition to the application on affidavit by 17 December 2023; and
(c)any document referred to or mentioned in an affidavit filed is to be annexed to the affidavit.
If the further mediation before a Registrar of the Court does not resolve the matter there will be a further directions hearing before the Court on a date to be fixed. Further, the matter will be provisionally listed for hearing on 3, 4, 5, 6 and 9 September 2024, thus ensuring that there is no further delay with respect to the listing of hearing dates. Of course, if the matter settles at mediation those hearing dates will be vacated.
There will be orders accordingly.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 17 October 2023
(d)
SCHEDULE OF PARTIES
PEG 116 of 2022 Respondents
Fourth Respondent:
ALEXANDRA MCCOSKER
Fifth Respondent:
PENNY BRENCHLEY
Sixth Respondent:
HEALIUS LIMITED ACN 064 530 516
0
24
8