Maloney v Knowmore Legal Services Limited
[2024] FedCFamC2G 1372
•13 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Maloney v Knowmore Legal Services Limited [2024] FedCFamC2G 1372
File number(s): SYG 1321 of 2023 Judgment of: JUDGE LAING Date of judgment: 13 December 2024 Catchwords: INDUSTRIAL LAW – Practice and Procedure – objections to categories of documents sought by subpoena – objections determined and relevant orders made Legislation: Fair Work Act 2009 (Cth) ss 50 & 340
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 16.01
Cases cited: Halbert v Zoll Medical Australia Pty Ltd [2024] FedCFamC2G 1147
Roberts-Smith v Fairfax Media Publications Pty Limited (No 43) [2023] FCA 886
Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
Wong v Sklavos [2014] FCAFC 120; (2014) 319 ALR 378
Division: Fair Work Number of paragraphs: 39 Date of hearing: Determined on the papers Place: Sydney Counsel for the Applicant: Mr L Meagher Solicitor for the Applicant: WorkLawyers Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
SYG 1321 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RORY MALONEY
Applicant
AND: KNOWMORE LEGAL SERVICES LIMITED
First Respondent
AMANDA WHELAN
Second Respondent
SARAH MORADAY
Third Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
13 DECEMBER 2024
THE COURT ORDERS THAT:
1.The first respondent’s objections to the production of documents in response to the subpoena be disallowed, on the basis that:
(a)the categories are limited in the manner detailed in the applicant’s written submissions filed on 27 November 2024; and
(b)the first respondent is not required to produce duplicates of documents already provided by the first respondent to the parties in the course of this proceeding.
2.The first respondent’s application to set aside the subpoena is otherwise dismissed.
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 LAING:
This proceeding concerns an application made under the Fair Work Act 2009 (Cth) (FWAct). The applicant seeks declarations that the respondents contravened ss 50 and 340 of the FW Act by taking adverse action against the applicant, failing to pay the applicant her entitlements and failing to provide the applicant with a copy of her employment records in the period required. The applicant seeks damages, payment of monies allegedly owed and the imposition of pecuniary penalties.
The matter has been listed for hearing on 7 April 2025 with an estimate of 5 days.
A subpoena has been issued seeking production of documents by the first respondent. The first respondent has filed a Notice of Objection and submissions seeking that the subpoena as originally issued be set aside in whole or in part. In response, the applicant has filed submissions advising that certain categories of documents are not pressed and limiting what is sought in relation to others. The parties have consented to the dispute regarding the subpoena being determined on the papers.
PRINCIPLES
Although a Notice of Objection has been filed, the grounds raised and accompanying submissions indicate that the first respondent seeks for the subpoena to be set aside: cf Halbert v Zoll Medical Australia Pty Ltd [2024] FedCFamC2G 1147 at [7]-[8] (Judge Manousaridis). I have therefore dealt with the matter on this basis.
The principles regarding setting aside a subpoena are reasonably well settled. They were considered by Besanko J in Roberts-Smith v Fairfax Media Publications Pty Limited (No 43) [2023] FCA 886 at [9]-[18], which was relied upon by the first respondent. The first respondent also relied generally upon Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145.
By reference to those cases, the first respondent submitted that a subpoena ought not to be used to obtain discovery. It may be accepted that it is necessary for documents sought to be described with sufficient particularity. It may also be accepted that documents must have a legitimate forensic purpose, in that there must be an apparent relevance to the issues in dispute. In this regard, in Wong v Sklavos [2014] FCAFC 120; (2014) 319 ALR 378, it was stated (at [12]):
12.... Other cases have used different terminology, but with essentially the same effect, for example, by requiring that, viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative (R v Barton (1981) 2 NSWLR 414 at 420), or that the material sought is reasonably likely to add in some way to the relevant evidence in the case (Spencer Motors Pty Ltd v LNC Industries Ltd (1982) 2 NSWLR 921 at 927), or that it be “on the cards” that the documents sought will materially assist the party at whose request the subpoena has been issued: Allister v The Queen [1984] HCA 85; (1984) 154 CLR 404 at 414; Tamawood Ltd v Habitare Developments Pty Ltd [2009] FCA 364 at [13], [35]-[38].
Relatedly, a subpoena may be set aside or limited on the basis that it is vague, oppressive or involves “fishing”.
The first respondent also referred to the requirement in r 16.01(4) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) that a subpoena include “an adequate description of the document or thing”, and to the Federal Court Subpoenas and Notices to Produce Practice Note (GPN-SUBP), which outlines that the issuing party has the onus of establishing the legitimate forensic purpose of the subpoena (at 2.1), and that subpoenas:
(a)should be used with care and not used for inappropriate or unnecessary purposes (at 2.3); and
(b)must not be drafted using unnecessarily wide or general terms, but must provide reasonable particularity (at 6.1).
ISSUES IDENTIFIED BY THE PARTIES
In submissions filed in response to the first respondent’s submissions, the applicant summarises her general protection claims as follows:
a.First adverse action: On 21 April 2022, the respondents contravened s 340(1) of the FW Act by making comments against her (which constitute adverse action), because she exercised a workplace right on 20 April 2022 by making a report/complaint about [an incident (Incident)] that occurred the day prior (Form 2, [13]-[17]).
b.Second adverse action: On 20 March 2023, the respondents contravened s 340(1) of the FW Act, by sending a misconduct letter to the Applicant because she exercised a workplace right/workplace rights by the report/complaint referred to in paragraph a and by various complaints between November 2022 and January 2023 (Form 2, [20]-[21]).
c.Third adverse action: On 28 March 2023, the respondents contravened s 340(1) of the FW Act by making a comment (which constituted adverse action), because the applicant had exercised her right to leave (Form 2, [25]-[28]).
d.Fourth adverse action: On 5 April 2023, the first respondent contravened s 340(1) of the FW Act by dismissing the applicant (by repudiating her contract, through a demotion) (Form 2, [29]-[32]). Although the Form 2 does not expressly state it, the applicant’s case it that this was taken because the applicant exercised the workplace rights pleaded in the Form 2; and the parties appear to have operated on this basis: see, eg, Affidavit of Amanda Whelan filed on 20 September 2024, [128].
Having reviewed the Form 2 and the evidence referred to above, I accept (for the purposes of this interlocutory dispute) that the issues in the proceeding relate to the above claims. In submissions filed by the first respondent, the first respondent suggested that the issues in dispute were broadly:
(a)the exercising of workplace rights; and
(b)the reasons for the alleged adverse actions.
CONSIDERATION
In written submissions filed on 14 November 2024, the first respondent submitted generally that:
(a)the categories of documents sought are not identified with sufficient particularity are those which would ordinarily be the subject of discovery; and
(b) the Subpoena may result in:
(i)the Applicant obtaining documents which may not be relevant to the issues in dispute; and
(ii)duplication of document identification, extraction and production in relation to documents which will be discoverable;
(iii) oppression.
A general objection of relevance is also taken and it is submitted that “the Applicant has the documents and information necessary to plead (as opposed to prove) her claim”. The significance of the latter observation within the context of the subpoena is not explained.
Respectfully, these kinds of general complaints are of limited assistance without specific application to the categories involved. As considered below, although the complaints of insufficient particularity, undue breadth and oppression may have had some force in relation to some of the categories as originally drafted, this was not true of all categories. The revised categories that have been pressed significantly deal with the first respondent’s complaints.
Reliance was placed in the first respondent’s submissions upon an affidavit of Mr Nicholas Hudson dated 12 November 2024. That affidavit makes reference to general difficulties in searching for files.
There are some limitations to this evidence. Reference was made, for example, to the need to input “a variety of search terms” in relation to individual email accounts as part of a review, that may be complicated by file substructures. The first respondent is said to have 149 employees, and to have undergone personnel changes over its 10-year history. However, it is not clear from the affidavit that every employee account over the last 10 years would potentially contain documents sought by the subpoena (as narrowed by the applicant’s submissions). Nor is it clear whether a global search might be possible in relation to email accounts across file substructures, nor what quantity of documents this might be expected to produce.
Reference is also made in Mr Hudson’s affidavit to “physical records”, located in a different state to where Mr Hudson is based. However, it is unclear what volume is contemplated, how readily they are transferrable, and whether this task may reasonably be delegated. Whilst reference is made to electronic records, which are said to be “electronic but not searchable”, it is unclear what quantity is involved and whether the task might be limited by other means (such as by file name or category).
Having regard to the above, I am not persuaded that a requirement to search for any documents (regardless of category) would be relevantly oppressive. It is also apparent that at least some form of search through the company’s records for documents of relevance to these proceedings has already been undertaken.
With that stated, I will turn to consider the specific categories in issue and the associated objections that have been made.
Categories 1, 2, 5 and 8
Category 1 simply seeks that a copy of the subpoena be provided with the documents produced. As no specific objection was taken to this, I have understood there to be no real difficulty with this occurring.
Although categories 2, 5 and 8 were the subject of objections, in subsequently filed submissions the applicant advised that she did not press these categories. They are therefore no longer in dispute.
Category 3
In submissions filed by the first respondent, it was contended that category 3 did not specify with sufficient particularity the documents sought. It was suggested that the category was “in the nature of discovery, fishing and oppressive”.
The first respondent’s complaints may have had more force if considered in relation to category 3 as originally drafted. That category sought a “copy of all records relevant to the Applicant’s employment”. However, after the first respondent’s submissions were filed, the applicant agreed to narrow this category substantially. The revised category only seeks “documents which record any complaints or ‘concerns’ as referred to in paragraph [91] of the Affidavit of Nick Hudson, made or discussed in Executive Management Meetings”.
In relation to the original category specifically, Mr Hudson’s 12 November 2024 affidavit indicates that in any event “each witness for the [f]irst respondent has produced what records they had which referred to any alleged complaints”. If that is so, and there are no further records that are responsive to the revised category, then there will be no further documents to produce.
The documents sought under revised category 3 are of clear enough relevance. As the first respondent acknowledged in submissions relating to the subpoena, the issues in this proceeding include the “reasons for the alleged adverse actions”. The applicant’s case (inter alia) is that adverse action was taken in response to complaints or concerns that she raised. In Mr Hudson’s 11 September 2024 affidavit, he suggests that the applicant’s alleged complaints or ‘concerns’ were not the subject of any formal complaint during executive meetings (which would have otherwise been recorded), but that related ‘Concerns’ were part of executive management discussions. The applicant is entitled to understand and test this evidence through the limited category of documents sought.
Having regard to the above, I will disallow the objection on the basis that the revised category applies and the first respondent is not required to produce a further copy of documents that it has already provided to the parties in the course of this proceeding.
Category 4
Category 4 seeks a “copy of all records referring to [the Incident], including any made contemporaneously in April 2022, and thereafter, as referred to in the Affidavit of Nick Hudson at paragraph [19]”.
The first respondent suggests that the Incident is not relevant to any of the alleged adverse actions relied upon by the applicant. However, [13]-[17] of the applicant’s Form 2 contends that adverse action was taken against her, in response to her report of the Incident. Further, as the applicant submitted, the respondent contends that the events of 19 April 2022 were not connected to the applicant’s employment. As the applicant submitted, the records sought would be expected to bear upon this issue.
The first respondent suggests that the category does not specify with particularity the documents sought and that it is in the nature of discovery, fishing and oppressive. The applicant’s objection in submissions appears to duplicate the wording used in relation to category 3. Where it was perhaps more understandable in relation to that category (as originally drafted) it is less understandable in relation to category 4. That category seeks records referring to a specific incident. Mr Hudson’s 12 November 2024 affidavit suggests that no (or at least limited) such records exist.
As I do not understand the first respondent’s objection on the limited submissions that have been made, that objection will be disallowed.
Category 6
Category 6 is another category that was originally drafted in potentially objectionable terms. That category sought all records of discussions throughout the course of employment “relevant to the Applicant’s employment”.
The first respondent contended (somewhat inconsistently) that no further records existed and that the scope of what was sought was onerous. I have considered Mr Hudson’s evidence that the category would require him to search several identified inboxes. I am not persuaded that this evidence is sufficient to establish that the category is relevantly oppressive. However, I would likely have been minded to find that the category was insufficiently defined and liable to be set aside on that basis. It is not apparent how all discussions, relating in any way to the applicant’s employment, would legitimately bear upon the issues in dispute.
In any event, the applicant has agreed to limit what is pressed in relation to this category in subsequently filed submissions. The applicant now only seeks a copy of records of or referring to discussions that have been referenced in particular parts of the first respondent’s evidence. The applicant should be able to test that evidence. I accept the applicant’s contention that, in broad terms, the discussions go to whether the applicant exercised a workplace right in April 2022 and the reasons for adverse action alleged.
For the above reasons, I will disallow the objection on the basis that the revised category applies and the first respondent is not required to produce a further copy of documents that it has already provided to the parties in the course of this proceeding.
Category 7
Category 7 originally sought a “copy of all records (including correspondence) relevant to the decision to dismiss and/or demote the Applicant commencing in or around March 2023, as referred to in the Affidavit of Amanda Whelan at paragraph [103]”.
The applicant has subsequently agreed to limit the category to such records “referring to, directly or indirectly, the reasons for the decision (or proposed decision)”.
It is not clear that the first respondent’s submissions regarding this category relate to the category in question. The wording appears to have been duplicated from submissions made under category 6. Mr Hudson’s 12 November 2024 affidavit suggests that there are no records responsive to this category that have not already been provided. If this is so, it may be that the first respondent has nothing further to produce.
I accept the applicant’s submission that the documents sought under the category go to a central issue in dispute, namely the reasons for the action taken.
I will disallow the objection on the basis that the revised category applies and the first respondent is not required to produce a further copy of documents that it has already provided to the parties in the course of this proceeding.
CONCLUSION
I will make orders in accordance with the above.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 13 December 2024
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