FEDERAL CIRCUIT COURT OF AUSTRALIA
| McALISTER v YARA AUSTRALIA PTY LTD | [2019] FCCA 2013 |
| Catchwords: INDUSTRIAL LAW – Claim of contraventions of the Fair Work Act 2009 (Cth) and for breach of contract – Applicant’s Notice to Produce – Respondent’s Notice of Objection – Applicant’s subsequent Application in a Case seeking either production of documents sought pursuant to the Notice to Produce and not yet produced or a declaration under s.45 of the Federal Circuit Court of Australia Act 1999 (Cth) and discovery of the documents sought in the Notice to Produce – distinction between a Notice to Produce and discovery. |
| Legislation: Fair Work Act 2009 (Cth), ss.44, 45, 119, 340, 341, 342, 351, 361 |
| Applicant: | JANELLE MCALISTER |
| Respondent: |
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- Case
- [2019] FCCA 2013
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the Applicant was entitled to the production of the documents sought in her Notice to Produce, and if not, whether she should be granted a declaration and discovery under s.45 of the *Federal Circuit Court of Australia Act 1999* (Cth). This involved considering the principles governing notices to produce, including the requirement for apparent relevance, the distinction between a notice to produce and discovery, and the potential for a notice to be used for "fishing" or to unduly burden a party. The court also had to assess the relevance of the documents sought to the pleaded issues in the principal proceedings, including allegations of adverse action, discrimination, and breach of contract.
The court applied the principles that a notice to produce requires documents to be sufficiently relevant to justify production, cannot be used as an alternative to discovery, and must seek specified documents rather than broadly defined categories. The court found that while some of the documents sought in the Notice to Produce were relevant and should be produced, others were too broad, lacked sufficient specificity, or were not demonstrably relevant to the issues in dispute. Specifically, the court ordered the production of certain emails and import orders, and letters pertaining to Mr Steven Sullivan's employment finalisation. However, it set aside the remainder of the Notice to Produce and dismissed the alternative application for discovery, finding that the broader requests were either not sufficiently specific or were akin to a fishing expedition, and that the Applicant had not established that discovery was appropriate in the interests of justice under s.45 of the *Federal Circuit Court of Australia Act 1999* (Cth).
The court ordered that, subject to specific categories of documents being produced by the Respondent, the remainder of the Applicant's Notice to Produce dated 1 August 2018 be set aside, and the Applicant's Application in a Case filed on 23 November 2018 be dismissed.
Orders
Orders of the court
1.
Subject to Order 2, the Respondent produce to the Applicant the following documents that are in its possession, custody or control by a date for production to be determined by the court:
(a) all emails exchanged between Ms Henriette Magnussen and any of Mr Neill Wiseman, Mr Steven Sullivan, Ms Sharyn Larsen and/or Mr Rao Narasimha during the period 1 February 2015 to 16 October 2015 which refer to Ms Janelle McAlister in the email’s body and/or subject line;
(b) any Electronic Import Delivery Order or Orders issued by Yang Ming (Australia) Pty Ltd to the email address neill.wisemann@yara.com during the period 1 September 2015 to 16 October 2015; and
(c) all letters, deeds and agreements between Yara Australia Pty Ltd and Mr Steven Sullivan between 1 April 2016 and 1 July 2017 pertaining to the terms on which Mr Sullivan’s employment with Yara Australia Pty Ltd was to be finalised or payment was to be made other than payment for salary for time worked, superannuation and statutory entitlements.
2.
If the documents referred to in Order 1 are not by produced by the Respondent, it file and serve an affidavit in this respect by the date for production.
3.
Other than as provided for in Order 1, the Notice to Produce dated 1 August 2018 be set aside and the Application in a Case filed on 26 November 2018 be dismissed.
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY
SYG 463 of 2016
JANELLE McALISTER
Applicant
And
YARA AUSTRALIA PTY LTD
Respondent
REASONS FOR JUDGMENT
These Proceedings
1.
The Applicant (Ms McAlister) commenced proceedings in this court under the Fair Work Act 2009 (Cth) (the FW Act) against the Respondent, Yara Australia Pty Ltd (Yara), her former employer. She alleged, in essence, that Yara contravened the general protections provisions and s.44 of the FW Act and also that it breached her contract of employment.
2.
On 1 August 2018 Ms McAlister issued a Notice to Produce (the Notice) to Yara requiring the production of 24 categories of documents.
3.
Yara produced documents sought under 5 paragraphs of the Notice. On 2 November 2018 it filed a Notice of Objection (the Objection) to production of the documents sought in the other paragraphs.
4.
In support of the Objection, Yara relied on an affidavit of Steven Bowler, a solicitor employed by its solicitors, affirmed on 29 October 2018. Ms McAlister swore and relied on an affidavit in response on 9 November 2018. Yara also relied on a second affidavit of Mr Bowler affirmed on 23 November 2019 which attested to further inquiries Mr Bowler made of Yara employees (after issues were raised in Ms McAlister’s affidavit as to Yara’s initial responses) and the responses he received, in particular as to whether searches were made and whether documents sought were in Yara’s possession, custody or control. Mr Bowler, who is based in Perth, was required for cross-examination. I gave him leave to be cross-examined by video-link.
5.
By Application in a Case filed on 23 November 2018 Ms McAlister sought orders that Yara comply with all paragraphs of the Notice and produce to her solicitors copies of all documents sought therein, save for those documents Yara had produced on 5 October 2018. In the alternative, Ms McAlister sought a declaration under s.45(1) of the Federal Circuit Court of Australia Act 2001 (Cth) (the FCCA Act) and discovery of the documents sought in the Notice, save for those documents Yara had produced.
6.
Ms McAlister seeks costs under s.570(2) of the FW Act or r.21.02(1)(a) of the Federal Circuit Court Rules 1999 (Cth) (FCC Rules). Yara now also seeks costs.
7.
The parties filed pre-hearing submissions. The matter was heard for a full day on 7 December 2018. Counsel for the Applicant did not complete her oral submissions. She sought, and was granted, leave to file “short” post-hearing written submissions. After the time allowed, the Applicant filed an extensive written submission. The Respondent filed a written submission in reply.
8.
In the Objection, Yara had stated that it had carried out searches for the documents sought under paragraphs 1, 2, 17, 18, 20 and 21 of the Notice and that no such documents were found in its possession. However subsequently further searches were carried out and Yara produced further documents in response to paragraphs 20, 22 and 23 of the Notice. Ms McAlister (without leave) filed supplementary submissions. The Respondent objected to the Applicant being given leave to rely on these submissions. After a further hearing, on 19 February 2019 I granted leave to Ms McAlister to rely on part of this submission. Counsel for Yara chose to respond orally to that part of the submission.
9.
Ms McAlister now presses for an order that Yara produce all documents sought, save for those already produced in response to paragraphs 5, 6, 7, 10, 13, 20, 22 and 23 of the Notice. She challenged the extent of production under paragraph 20 of the Notice and the nature and extent of Yara’s searches for documents. The paragraphs of the Notice which remain in contention are considered below.
Background
10.
The Respondent is part of the international Yara group of companies. According to the Defence, Yara sells fertiliser. From February 2015, Ms Henriette Magnussen was Yara’s managing director.
11.
It is not in dispute that Ms McAlister was employed by Yara (previously known as Hydro Agri Australia Pty Ltd) from December 1996 to October 2015. On or about 10 April 2015, Ms McAlister’s role and reporting structure were changed.
12.
In her Further Amended Statement of Claim (FASOC) Ms McAlister complained about aspects of her treatment, responsibility, status and salary package thereafter. She also asserted that she made complaints and inquiries within s.341(1) of the FW Act during this time, that an investigation was carried out and that she was summarily dismissed for alleged serious misconduct (which she denies) on 16 October 2015. She claimed that the investigation and dismissal constituted adverse action which was taken because she exercised a workplace right to make complaints and inquiries and was in contravention of s.340 of the FW Act.
13.
Ms McAlister also contended that particular aspects of her treatment from February to October 2015 injured her in her employment or altered her position to her prejudice or discriminated between her and other employees and constituted discrimination because of her physical disability (a back condition and a medical need for spinal fusion surgery) or because of her age and amounted to contraventions of s.340 and/or s.351 of the FW Act.
14.
In addition, Ms McAlister alleged that disparagement of her by Yara after she had ceased employment with Yara, amounted to adverse action within s.342 of the FW Act such that Yara breached s.340 of the FW Act.
15.
In addition, Ms McAlister alleged that Yara contravened ss.44 and 119 of the FW Act in failing to pay her redundancy pay.
16.
Ms McAlister also alleged that Yara breached an implied term of her contract of employment in failing to give her reasonable notice; breached an express term in failing to pay her travel allowance from 11 June 2015 and failed to pay her superannuation contributions for September and October 2015.
17.
Yara disputes these claims.
18.
In addition to compensation and the payment of entitlements, Ms McAlister seeks that pecuniary penalties for contraventions of the FW Act be imposed on Yara (and paid to her) and damages for breach of contract.
19.
It is not in dispute that in about October 2015, Yara conducted an investigation into Ms McAlister’s conduct. It is necessary to refer to the allegations against Ms McAlister as they are relevant to parts of the Notice. It was alleged that Ms McAlister had signed a contract on behalf of Yara with TransAction Customs & Forwarding Pty Ltd (TransAction) that she was not authorised to sign and that she was aware that the principal of TransAction, Mr Adam Marsh, was the husband of another employee of Yara, Ms Julia Marsh.
20.
This was said to have occurred in circumstances where, according to Yara, on or about 17 February 2015 Ms Magnussen had informed members of Yara’s management team (which at that time included Ms McAlister), that any issues of an ethical or conflict of interest nature must be raised within a three week period. It was alleged that Ms McAlister did not advise Yara senior management that she had signed the TransAction contract until about 2 October 2015.
21.
Yara also alleged (in the Defence) that Ms McAlister had misrepresented that she signed the TransAction contract in November 2014 when it was signed by her in March 2015 and that Ms McAlister attempted to mislead it and to conceal the fact that she had signed the TransAction contract in March 2015.
22.
It was also alleged by Yara that Ms McAlister had known in 2015 that there was a merger planned between TransAction and another company, Magellan Logistics Pty Ltd (Magellan) and that, without authority from Yara’s senior management, she had signed a letter of authority for Magellan to take over from TransAction custom clearance operations on behalf of Yara (the Magellan Authority) and that she did not inform her manager or the managing director that she had signed the Magellan Authority.
23.
Yara also alleged that Ms McAlister was aware that a review process for the services performed by TransAction was underway and that Yara did not intend for Magellan or TransAction to be awarded a new contract for the services that, at that time, were provided by TransAction.
24.
In her FASOC Ms McAlister claimed that she had not engaged in misconduct for various reasons, including the responsibility she had to sign documents on behalf of Yara that created legal obligations; that Yara was aware prior to April 2015; that she had been signing service contracts with customs brokers; and that Yara did not inform her that she needed to seek approval before she signed such service contracts. She also alleged that the former managing director of Yara had authorised the signing of the TransAction contract in about October or November 2014.
25.
There is a dispute as to the extent of Ms McAlister’s authority to sign documents that created legal obligations (including the TransAction contract and the Magellan Authority), when she had to obtain approval and, in particular, whether the Magellan Authority was and should have been signed in the absence of an Integrity Due Diligence (IDD) check by Yara. These issues are pleaded in some detail.
26.
Ms McAlister’s employment with Yara was terminated “with immediate effect” by letter dated 16 October 2015 on the basis that she engaged in serious misconduct. However, she was paid five weeks salary and superannuation entitlements. Yara contended this was the amount Ms McAlister would have been entitled to had she not been summarily dismissed. Although it stated at various places in the Defence that Ms McAlister was summarily dismissed for serious misconduct, written submissions for Yara stated:
In these proceedings, the respondent does not seek to establish in the adverse action proceedings that the applicant in fact engaged in misconduct as to warrant her dismissal or to defeat the applicant’s claim that there is an implied term in her contract of reasonable notice. Whether or not a term is implied by law is a question of construction at the time the contract is entered into. It is a separate question of whether the applicant breached the contract warranting summary dismissal. In any case the respondent paid Ms McAlister five weeks salary in lieu of notice and her employment was not terminated summarily.
27.
It appears that Ms McAlister does not understand this to amount to a concession relevant to the conduct of the trial, given the references to dismissal for serious misconduct in the Defence. Counsel for Ms McAlister contends that whether Ms McAlister actually engaged in conduct that amounted to “serious misconduct” is a critical issue that is “in contest”.
The Notice to Produce
28.
The Notice, issued by Ms McAlister, sought production of 24 categories of documents as follows:
Ms McAlister’s performance in her role and true reason for her dismissal
1. The version of the document entitled “Performance Plan” referred to at [57] of the affidavit of Sharyn Larsen dated 20 June 2018 (Ms Larsen’s Affidavit) and exhibited at pages 43 to 44 of SLL7 to that affidavit, that was signed by Ms McAlister and Mr Bill Terry in 2015.
2. All Documents that record reviews of Ms McAlister’s performance at Yara Australia Pty Ltd (Yara) during the period 1 January 2005 to 16 October 2015.
3. All Documents, including emails, text messages and Lync messages, that were exchanged between any of the following persons during the period 1 February 2015 and 30 November 2015, and which refer to the Applicant in the email’s body and/or subject line:
3.1 Ms Henriette Magnussen;
3.2 Mr Neill Wiseman;
3.3 Mr Steven Sullivan;
3.4 Ms Sharyn Larsen; and
3.5 Mr Rao Narasimha.
4. All Documents including file notes created by any of the persons referred to in paragraph 3 above of the conversations with Ms McAlister that took place:
4.1 in about February 2015 (with Ms Magnussen);
4.2 on about 13 April 2015 (with Ms Magnussen);
4.3 on about 4 June 2015 (with Ms Magnussen);
4.4 on about 11 June 2015 (with Mr Sullivan);
4.5 on 13 August 2015 (with Mr Sullivan);
4.6 in about late September 2015 (with Mr Sullivan); and
4.7 on 15 October 2015 (with Ms Magnussen and Mr Sullivan).
5. All drafts of:
5.1 the document entitled “Meeting with Janelle McAlister Thursday, 15th Oct 2015, 10am” being Annexure SNS16 to the affidavit of Steven Michael Sullivan affirmed 19 June 2018;
5.2 the letter from Yara to the Applicant dated 14 October 2015;
5.3 the letter from Yara to the Applicant dated 16 October 2015.
6. All Documents in any Human Resources file for the Applicant kept at Yara’s Sydney and Singapore offices which were created between 1 January 2015 to and 1 November 2015.
Yara’s investigation into Ms McAlister’s conduct
7. All attachments to the email with the subject “Result of Investigation” from Ms Magnussen to Mr Soon Hee and others (4.46 pm) which is referred to at paragraph 239 of the affidavit of Ms Magnussen affirmed 20 June 2018 and a copy of which is at page 226-7 of Exhibit HFM40;
8. All letters of authority signed by Ms McAlister, Mr (sic) Karen Murphy, Mr Neill Wiseman, Ms Julia Marsh and Ms Holly Tankard, during the period 1 January 2015 and 16 October 2015.
The TransAction contract and the Magellan Authority
9. All emails, forms (including any Yara Integrity Due Diligence Forms) and letters exchanged during the period 15 August 2015 and 30 June 2017 inclusive between Mr Adam Marsh of TransAction Customs & Forwarding Pty Ltd (TransAction) and Magellan Logistics Pty Ltd (Magellan) and:
9.1 Mr Neill Wiseman of Yara; and
9.2 Ms Karen Murphy of Yara
10. A copy of the invoice that Magellan issued to Yara and to which Ms Magnussen refers at paragraph 174 of her affidavit affirmed 20 June 2018 (Ms Magnussen’s Affidavit), together with any covering letter or email enclosing the invoice.
11. Electronic Import Delivery Order or Orders issued by Yang Ming (Australia) Pty Ltd to the email address neill.wiseman@yara.com during the period 1 September to 1 November 2015.
12. Any approval issued by Yara following Integrity Due Diligence (IDD) Review of Magellan during the period 1 October 2015 and 30 June 2016.
Planning tasks
13. The employment contracts and any written description of the position or role with Yara for the following individuals in the period 16 October 2015 to 1 July 2018:
13.1 Ms Pauline Parsons;
13.2 Mr Andreas Bundai; and
13.3 Ms Mavis Li.
Ms Magnussen’s knowledge of the applicant’s salary sacrifice arrangement
14. All expense claim forms for Ms McAlister signed by Ms Magnussen in the period 1 February 2015 to 30 June 2015.
Yara’s AQIS classification
15. All letters or certificates that record Yara’s Level 1 AQIS classification in the period 1 January 2014 to 16 October 2016 inclusive.
Previous instances of Fair Work Act contraventions by Yara
16. All Documents that record any workplace bullying or general protections complaint made, or claim filed, by Yara employees (other than Ms McAlister) against it during the period 1 January 2010 to 1 July 2018.
Age and disability discrimination against Ms McAlister
17. The version of the spreadsheet entitled “Audit of Employee Information” that is stored on Yara’s computer system current as at each of these dates:
(a) 1 February 2015;
(b) 1 June 2015; and
(c) 1 December 2015.
18. Emails or Lync messages between Ms McAlister and Mr Sullivan of Yara sent and received in the period 3 July 2015 to 1 October 2015 and which refer to “surgery” in either the subject line or the body.
Redundancy
19. Letters, agreements and deeds signed by Yara and the “number of employees” referred to in paragraph 18.4 of the Defence who were dismissed on the ground of redundancy in the period 1 March to 31 December 2015.
Yara’s witnesses
20. All letters, deeds and agreements between Yara and Mr Steven Sullivan or Yara and Mr Neill Wiseman which were signed during the period 1 April 2016 and 1 July 2017.
21. Documents that record any amounts Yara paid to Mr Steven Sullivan or Mr Neill Wiseman during the period 1 April 2016 and 1 July 2017, other than for salary for time worked, superannuation, and statutory entitlements.
22. Any employment contract between Yara and Ms Henriette Magnussen signed in the period 1 January 2014 to 30 June 2015.
23. Documents created during the period 1 June 2016 and 1 February 2017 that record the exit interviews that took place between Yara and each of Mr Steven Sullivan and Mr Neill Wiseman.
Post-employment disparagement
24. All emails and letters that Ms Magnussen sent to Yara employees and Yara customers in the period 16 October 2015 to 1 June 2016 inclusive and which refer to Ms McAlister in the subject line or the body of the email.
The Law
29.
Rule 15A.17 of the FCC Rules states:
Notice to produce
(1) A party may, by notice in writing, require another party to produce, at the hearing of the proceeding, a specified document that is in the possession, custody or control of that other party.
(2) Unless the Court otherwise orders, the party given notice to produce must produce the document at the hearing.
30.
A notice to produce given pursuant to this rule has the same “effect” as a subpoena “duces tecum” (see CCom Pty Ltd v Jiejing Pty Ltd (1992) 37 FCR 1 at [3]). It has been said that the principles governing the exercise of the power to set aside or to excuse a party from producing documents in answer to a notice to produce are the same as those which govern the setting aside of a subpoena for production issued to a party (see Cheung Kong Infrastructure Holding Ltd v Blue Scope Steel Ltd [2010] FCA 739 at [29]).
31.
In considering former Order 33 Rule 12(1) of the pre-2011 Federal Court Rules (now see r.30.28 of the Federal Court Rules 2011 (Cth)) in Cheung Kong at [23] – [38], Foster J referred to a body of authority in the Federal Court to the effect that a properly served notice to produce had the same coercive affect as a subpoena for production. His Honour stated at [24] that “compliance with the Notice to Product is mandatory unless production is excused by the court or the Notice to Produce is set aside”. Foster J was of the view that the expression “unless the Court otherwise orders” in O 33 r 12(1) provided the Federal Court with express power to excuse a party from producing documents in answer to a notice to produce and may also be apt to empower the Court to set aside a notice. The same may be said in relation to r.15A.17(2) of the FCC Rules.
32.
Foster J also suggested in Cheung Kong at [28] that in the Full Court of the Federal Court “seems to have been assumed” that the Federal Court had power to set aside a notice to produce as part of its power to regulate its own processes.
33.
Some authorities suggest that as a notice to produce is not an order of the court, rather than setting aside such a notice, the appropriate order would be to excuse compliance with the rule in question (see Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No.2) [2012] FCA 707 (BHP (No.2)) per Jessup J at [8] – [12] and Deep Investments Pty Ltd v Casey (No.1) [2017] FCA 1643 per Gleeson J at [2] – [3]). However the parties have not disputed that I have power to set aside the Notice or part thereof, whatever the source of power. I note that were it necessary to do so, I would in any event excuse compliance with r.15A.17 of the FCC Rules in relation to those parts of the Notice that are set aside.
34.
The applicable principles were summarised by Collier J in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No.3) [2012] FCA 61 (BHP (No.3)) at [6] as follows:
(1) The party which has issued a Notice to Produce bears the onus of establishing that the documents the subject of the Notice are sufficiently relevant to justify production (Seven Network Ltd v News Ltd (No.11) [2006] FCA 174 at [6], Cheung at [55]).
(2) Timing of the issue and service of a Notice to Produce is a relevant factor in respect of any application to set aside the Notice.
(3) A Notice to Produce cannot be used as an alternative to an application for discovery or for further and better discovery.
(4) It is necessary that the material sought has an apparent relevance to the issues in the principal proceedings. The test of apparent relevance in this context is whether the documents are reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case. (Seven Network (No 11) at [6], Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union at [14]).
(5) A Notice to Produce cannot be used for the purposes of “fishing” or for the purpose of determining a preliminary question as to whether a party has a supportable case.
(6) A Notice to Produce may be set aside on the basis that it is unduly burdensome if the width of the categories requested is too broad or the categories are not described with adequate specificity (Tony Azzi Automobiles Pty Ltd v Volvo [2006] NSWSC 283 at [20], Sportsbet Pty Ltd v New South Wales (No 9) [2010] FCA 31).
35.
In Sportsbet Pty Ltd v State of New South Wales (No.9) [2010] FCA 31 Perram J had posed the test in the terms adopted by Sackville J in Seven Network Ltd v News Ltd (No.11) [2006] FCA 174 and had observed at [4] that this “connotes a degree of certainty as to the material’s potential relevance that travels beyond the merely conjectural. It is to be distinguished from the tests applicable in discovery”.
36.
What the Applicant sought to characterise as a “relatively relaxed test” of apparent relevance is to be seen in light of such remarks and also the fact that r.15A.17 is limited to production of “a specified document that is in the possession, custody or control” of the other party. The concept of “specified” document does not impose a requirement that the other party search for and produce all documents relating to a particular subject matter (see Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869 at [12] - [15] per Barrett J in relation to the expression “specified” documents in r.34.1 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR)). The term “specified” in r.15A.17 of the FCC Rules must equate to “described” or “identified”.
37.
In Comcare v John Holland Rail Pty Ltd (No.5) [2011] FCA 622; (2011) 195 FCR 43 Bromberg J made helpful observations in considering principles relevant to whether a legitimate forensic purpose existed and, if so, the likely importance of documents sought to the proceedings. While Bromberg J was considering whether leave to call a witness should be granted, his Honour referred to the fact that on an application to set aside a subpoena the test for the existence of a legitimate forensic purpose was that of apparent relevance (and see Trade Practices Commission v Arnotts Ltd (No.2) [1989] FCA 248; (1989) 88 ALR 90 at 103). Apparent relevance to an issue was said to be “demonstrated where the material sought could reasonably be expected to throw light on the issue in the proceeding and not simply where the material “might permit a case to be made”” (Comcare at [28] and see Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 588 at [16] – [18]).
38.
Bromberg J pointed out in Comcare at [29] that the test of apparent relevance has also been applied in relation to documents sought under a notice to produce.
39.
In Comcare Bromberg J further elaborated on the test of apparent relevance as follows:
32. Whether a document or anticipated evidence is reasonably likely to throw light on an issue or issues in the proceeding depends principally on two things. Firstly, an assessment as to whether the anticipated evidence can reasonably be expected to be available so as to be deployed and secondly the likelihood that if available, the anticipated evidence will rationally affect the determination of a fact in issue. As Greenwood J said in McIlwain at [36] it is “necessary to establish grounds for a belief that a document or class of documents relating to a matter in question in the proceedings exists” and that such documents or class are available in the sense that they are in the possession, custody or power of the respondent to the motion. The requirement that material be relevant in the sense that it “could rationally affect (directly or indirectly), the assessment of the probability of the existence or a fact in issue” is adverted to by Greenwood J at subpara (j) of [35].
33. As Weinberg J said in Fried v National Australia Bank Ltd (2000) 175 ALR 194 at [30]:
It is not a legitimate use of a subpoena to have the specified documents produced in a speculative attempt to identify whether the documents might, ultimately, be of some evidential value.
34. A subpoena is not to be used as a “fishing” or “trawling” exercise. It will not however be fishing “when there are reasonable grounds to think that fish of the relevant type are in the pond or, as it has been expressed in other cases, that it is ‘on the cards’ that relevant documents (even if they are relevant only to credit) will be elicited by the subpoena”: Liristis v Gadelrabb [2009] NSWSC 441 at [5] per Brereton J.
40.
In this case an issue has arisen in relation to the extent to which a notice to produce directed to the credit of a witness is justifiable. Ms McAlister pointed to authority (about subpoenas) in support of the proposition that, in contrast to the situation in relation to discovery, apparent relevance in relation to a notice to produce may extend to documents relevant to credit (see Liristis v Gadelrabb [2009] NSWSC 441 at [5]).
41.
In Thomas v SMP (International) Pty Ltd (No.2) [2010] NSWSC 870 Pembroke J identified a common thread in what his Honour described as important decisions in this area (including Liristis v Gadelrabb) as follows at [19]:
19. … There have been a number of relatively recent judicial statements about the extent to which the credit basis can justify a subpoena. They reveal a difference in emphasis reflecting the varied factual circumstances in which the issue can arise, as well as the discretionary nature of the considerations to which a judge will have a reference on such an application. Three of the more important decisions in which such statements have been made are: Fried v National Australia Bank [2000] FCA 911 (Weinberg J); Liristis v Gadelrabb [2009] NSWSC 441 (Brereton J); Jack Brabham Engines Ltd v Beare [2010] FCA 35 (Jagot J). There is, I think, a common thread in each of these decisions which I will endeavour to explain:
(a) As a general principle, the production of documents intended to be used solely to impeach the credit of a witness may be a legitimate forensic purpose: Fried (above) at [24]. It is not therefore an objection, by itself, that the subpoena seeks documents relating only to credit: Liristis (above) at [5]; R v Saleam (1989) 16 NSWLR 14 at 19 (Hunt J). On the other hand, in order to support the subpoena, it is not sufficient, by itself, merely to say that the documents relate to the credit of a witness;
(b) In all cases, there must be some actual identifiable basis — reasonably precise and tolerably clear — that indicates what the legitimate forensic purpose really is. The forensic purpose requires realistic consideration of the potential strategic and evidentiary use of the documents in the context of the legal and factual issues that are required to be determined;
(c) If the subpoena is legitimate, two features of its intended forensic purpose will usually demonstrate its legitimacy. First, the particular credit issue will be capable of reasonable articulation, making due allowance for the necessity for some generalisation depending on the stage that the hearing has reached. Second, the probable connection between the documents sought to be produced and that credit issue, will be apparent;
(d) A credit issue of doubtful plausibility is unlikely to be sufficient to justify the subpoena. The same result will follow if the supposed connection between the credit issue and the documents sought, is strained, opaque or speculative;
(e) The court will exercise particular caution when a subpoena is sought to be justified solely on the credit basis: Fried (above) at [27]. The judge must be satisfied about the utility of the production of the documents, and the fairness to the witness, having regard to the potential for abuse and the need to control and confine cross examination within manageable limits;
(f) A subpoena that does little more than speculatively trawl for documents that may possibly be used to impugn a witness’s credit has never been justifiable: Fried (above) at [29].
42.
While these cases related to subpoenas, it appears to be accepted by the parties that such principles also apply to a notice to produce.
43.
Ms McAlister argued generally that the Notice was addressed to documents that contained specific and readily identifiable information of apparent relevance or that were identified by reference to date and the persons who sent or received them. She contended that no part of the Notice was objectionable and that all documents sought were relevant. However she now seeks discovery of the same categories of documents, in light of what her Counsel described as “technical” objections by Yara.
The Discovery Application
44.
It was not until the Application in a Case was filed on 23 November 2018 that Ms McAlister sought, in the alternative to the Notice, a declaration under s.45 of the FCCA Act and discovery of all documents sought in the Notice, but not yet produced.
45.
Section 45 of the FCCA Act is as follows:
Interrogatories and discovery
(1) Interrogatories and discovery are not allowed in relation to proceedings in the Federal Circuit Court of Australia unless the Federal Circuit Court of Australia or a Judge declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.
(2) In deciding whether to make a declaration under subsection (1), the Federal Circuit Court of Australia 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 Federal Circuit Court of Australia or the Judge considers relevant.
46.
Yara opposed the application for discovery.
47.
Yara submitted that discovery should not be ordered because many of the documents sought were not relevant to the matters in issue on the pleadings, while some had only tangential relevance. A large number of documents sought were said to seem likely to expand issues and the hearing time (in circumstances where there are foreshadowed substantial objections to relevance and hearsay). Yara pointed out that it had not consented to or sought discovery and referred to the costs it would incur if required to provide discovery.
48.
Importantly, Yara drew attention to the fact that in Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442 at [51] – [55] Lander J had considered s.45 of the
Background
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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