McAlister v Yara Australia Pty Ltd
[2019] FCCA 2013
•24 July 2019
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 |
| Cases cited: Abrahams v Qantas Airways Limited (No.2) [2007] FMCA 639; (2007) 210 FLR 314 |
| Applicant: | JANELLE MCALISTER |
| Respondent: | YARA AUSTRALIA PTY LTD |
| File Number: | SYG 463 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing dates: | 7 December 2018 19 February 2019 |
| Delivered at: | Sydney |
| Delivered on: | 24 July 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Muir and Ms Kovacs |
| Solicitors for the Applicant: | Petrine Costigan Lawyers |
| Counsel for the Respondent: | Ms Andelman |
| Solicitors for the Respondent: | Lavan |
ORDERS
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 [email protected] 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.
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.
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
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.
On 1 August 2018 Ms McAlister issued a Notice to Produce (the Notice) to Yara requiring the production of 24 categories of documents.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
In addition, Ms McAlister alleged that Yara contravened ss.44 and 119 of the FW Act in failing to pay her redundancy pay.
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.
Yara disputes these claims.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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 [email protected] 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
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.
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]).
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.
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.
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.
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).
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”.
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”.
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]).
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.
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.
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]).
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].
While these cases related to subpoenas, it appears to be accepted by the parties that such principles also apply to a notice to produce.
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
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.
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.
Yara opposed the application for discovery.
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.
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 Federal Magistrates Court of Australia Act 1999 (now the FCCA Act) as follows:
51. The presumption in s 45(1) of the Federal Magistrates Act is that discovery will not be permitted in any proceedings in the Federal Magistrates Court unless the Federal Magistrate has made the declaration provided for in s 45(1).
52. Section 45(1) assumes that, unless the declaration is made, discovery is not necessary for the orderly disposal of proceedings in the Federal Magistrates Court. That assumption is consistent with s 3(2) of the Federal Magistrates Act, which provides that the objects of the Act are for informality, streamlined procedures, and the use of appropriate dispute resolution processes.
53. The purpose of discovery is to assist in resolving disputes as to fact. Discovery can be a lengthy and expensive process. Because of the high cost to the parties of the discovery process, both in giving discovery and taking inspection, the modern trend is to contain the obligation to give discovery by giving the court control over the process; by limiting the circumstances in which discovery is to be given; and, if discovery is to be given, by limiting the extent of the discovery given. The cost of discovery can far outweigh the benefits.
54. Section 45(2) identifies the circumstances in which it would be “appropriate”, in “the interests of the administration of justice”, to make an order for discovery, by requiring the Federal Magistrate to have regard to whether an order for discovery “would be likely to contribute to the fair and expeditious conduct of the proceedings” and any other relevant matter. An application for discovery in the Federal Magistrates Court should be approached on the basis that the application should be refused unless the making of an order requiring a party to give discovery would be likely to contribute to the fair and expeditious conduct of the proceeding or there is some other relevant matter that would mean that an order would be in the interests of the administration of justice. The expression, “the administration of justice”, must be understood by reference to the scheme of the Act and the presumption that discovery is not usually necessary for the fair and expeditious disposal of the proceeding.
55. Proceedings of the kind with which the Federal Magistrate was concerned should be dealt with inexpensively and expeditiously. Too often, proceedings of this kind can cause the respondents to pay more in legal costs than they become obliged to pay in pecuniary penalties. That itself is a penalty.
(emphasis added)
Lander J also suggested that a relevant matter to be considered in making a declaration for discovery was the extent to which a party to proceedings in this court could recover its costs for giving discovery. This assumes particular relevance in proceedings (such as these) under the general protections provisions of the FW Act (and see s.570 of the FW Act).
Yara also pointed out that in Hartnett Legal Services Pty Ltd v Ballantyne [2016] FCA 1116 Rangiah J had observed that Division 14.2 of the FCC Rules indicated that an order for “disclosure generally” should be construed as limited to disclosure of documents that are or have been in the possession, custody or control of the party making disclosure; must be interpreted as requiring disclosure of documents relevant to a matter in issue raised by the pleadings or in the affidavits; that the wide Peruvian Guano test of relevance did not apply (see Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55); and that “traditional discovery” was generally prohibited in the Federal Circuit Court.
In Abrahams v Qantas Airways Limited (No.2) [2007] FMCA 639; (2007) 210 FLR 314 at [22] (cited in Hartnett), Lucev FM (as his Honour then was) stated (at [9]-[11]) that the interests of the administration of justice were not the same as the interests of one party, but referred to the interests of the “management” of justice. After canvassing authorities, Lucev FM also observed (at [22]) that while relevance was clearly a factor, it alone could not be the test in relation to whether a declaration should be made under s.45 of what is now the FCCA Act. His Honour suggested at [25] that other relevant matters within s.45(2) might include: the relevance and volume of any documents sought to be discovered; whether there is a courtbook containing relevant documents; whether discovery would narrow the issues or be “of benefit” in the litigation; whether both parties sought or consented to discovery; and the effect of discovery on litigants, especially vulnerable litigants. However his Honour also stated that “the categories of relevant factors… are obviously not closed”.
In support of her application for a declaration under s.45, Ms McAlister focused on her interests and an asserted need to have “all relevant documentary evidence” available. There was no real consideration of how discovery would be likely to contribute to the “fair and expeditious” conduct of the proceedings or be in the interests of the administration of justice.
Ms McAlister submitted that an order for discovery would be the most “convenient” way of ensuring she had access to documents as this “avoids the need to deal with Yara’s ‘technical’ objections to the Notice”. I do not find this argument persuasive. Proceeding by way of a notice to produce avoided the need for the Applicant to follow the requisite procedure in relation to discovery and to justify the scope of any discovery sought, instead obliging the Respondent, as the recipient of the Notice, to object to production and seek to persuade the court that it could not or need not comply with the Notice. However, it should not be open to a party to use a notice to produce procedure as an alternative method of obtaining documents which ought to have been the subject of an application for discovery where no s.45 declaration as to discovery had been made.
Ms McAlister now appears to seek to impose obligations on Yara, in terms of making searches for documents, as though discovery had previously been ordered.
In submissions, Ms McAlister suggested that discovery was only sought in the Application in a Case due to what she described as Yara’s “resistance” to producing documents and asserted failure to make proper searches and inquiries. However Ms McAlister had foreshadowed seeking discovery in the pleadings. She did not do so until after Yara objected to production of documents sought in the Notice. It is not in the interests of the administration of justice to seek discovery to avoid objections that are raised to a notice to produce (see BHP (No.3) at [6] and Sportsbet at [4]).
The Applicant also stated that if the court was not minded to order discovery, the principles set out in the submissions should be applied to the Notice. However this overlooks the distinction between a notice to produce and discovery.
A notice to produce is not a substitute for discovery. As indicated in BHP (No.3) at [6] the standard of relevance applicable to a notice to produce (as discussed by Sackville J in Seven Network at [6]) is that the documents sought are “reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case”. The lack of such “apparent relevance” is a ground for setting aside the notice to produce (Ibid and see Arnotts Ltd at 101 - 103 per Beaumont J).
As Perram J pointed out in Sportsbet at [4]: “[r]easonable likelihood… is to be distinguished from the tests applicable in discovery”. His Honour further explained in Sportsbet at [8] – [9]:
8. … Were an application for further discovery to be made it would invite consideration of a number of discretionary matters including the extent of any delay in making the application, the nature and extent of any explanation for that delay and the extent of the relevance of the material weighed against the burden that the discovery would involve for the applicant.
9. Those discretionary considerations are, of course, not material to the issues which arise on the notice to produce for there is not the same discretionary ability to set aside a notice to produce. The discretionary differences between discovery, subpoenas and notices to produce constitute one of the reasons why the test of apparent relevance is tighter for subpoenas and notices to produce than the test of relevance for discovery. That difference, of course, underlies the well understood and longstanding proposition that subpoenas — and notices to produce I would add — cannot be used as a substitute for discovery: see Commissioner for Railways v Small (1938) 38 NSWR 564 at 574–575 per Jordan CJ.
While Ms McAlister contended that the documents she sought satisfied both the apparent relevance and direct relevance tests and were essential to a fair trial, she did not grapple with the fact that documents relevant only to credit are not discoverable.
It was said not to be in the interests of justice, and unjust, for Ms McAlister to run her case without relevant documents and that there were no factors that “disentitle” her to discovery. However, as Lander J pointed out in Devine, the “presumption” in s.45(1) is that discovery will not be permitted in this court unless a declaration is made. This does not mean that a declaration (or an order for production of documents sought in a notice to produce) will necessarily be made in the absence of particular “disentitling” factors.
In addition to the circumstances outlined above, the Notice seeks a considerable volume of documents. Importantly, as discussed further below, some of the documents sought are not relevant or not apparently relevant to matters in issue in the proceedings and others are of, at most, only tangential relevance. Ms McAlister suggests that Yara should engage an external document recovery specialist because documents of the nature sought “may” exist. Yara would occur an additional burden and costs likely not to be recoverable unless within the s.570 FW Act exception. The width of the documents sought and the matters that it is suggested may be revealed therein are likely to expand issues and hearing time. Yara has not sought discovery. Yara has not consented to discovery.
Having regard to all the circumstances of this case I am not persuaded that discovery would be likely to contribute to the fair and expeditious conduct of the proceedings or that there is some other relevant matter that would satisfy me that an order for discovery would be in the interests of the administration of justice.
I am not satisfied that it would be in the interests of the administration of justice to order discovery. Rather, as Yara submitted, the Notice should be dealt with in a practical manner as a notice to produce.
While it is not for the court to redraft, of its own volition, an overly wide paragraph of a notice to produce, I bear in mind the objects of the FCC Rules to assist the just, efficient and economical resolution of proceedings as explained in r.1.03. In this case the documents produced, the extensive submissions and some clarifications by McAlister have made it appropriate in relation to some paragraphs of the Notice to require more limited production than was sought in the Notice as originally drafted where such documents have been shown to be of apparent relevance (rather than to set those paragraphs aside because on their face they seek discovery).
Rule 15A.17 of the FCC Rules is not expressly confined to documents mentioned in a pleading or affidavit. However it is clearly appropriate to have regard to the evidence filed and to the pleadings in determining whether to exercise the power to set aside the Notice (as Yara seeks) or to order production (as Ms McAlister seeks), bearing in mind that the question is whether the material sought has an apparent relevance “to the issues in the principal proceedings” and that it is for Ms McAlister to establish that a legitimate forensic purpose exists.
In assessing whether any or all of the contested paragraphs of the Notice should be set aside, I have had particular regard to the nature of a notice to produce under r.15A.17 of the FCC Rules, and have considered whether Ms McAlister has established that the documents sought are reasonably likely to throw light on an issue or issues in the proceedings. I have taken into account the searches already undertaken by Yara, given that I must be satisfied that there are reasonable grounds for a belief that documents sought exist and are available in the sense considered in Comcare at [32] and that a notice to produce must not, in all the circumstances, be “seriously and unfairly burdensome” (as considered in Seven Network Ltd v News Ltd (No.5) [2005] FCA 510; (2005) 216 ALR 147 at [12]).
The Parties’ Positions
As indicated, Ms McAlister submitted generally that no part of the Notice was objectionable, that all documents sought were of apparent relevance and that it was essential for a “fair trial” that she have access to them.
Yara has now produced documents in response to paragraphs 2, 5-7, 10, 13, 20, 22 and 23. Except in relation to paragraph 20, no further issue appears to be taken by Ms McAlister with respect to the extent of production of documents referred to in those paragraphs.
Ms McAlister expressed dissatisfaction with the extent and nature of the searches conducted by Yara as evidenced in Mr Bowler’s affidavits and also with Yara’s claim that email accounts of former Yara employees were deleted. However, as Yara pointed out, the basis on which Ms McAlister claimed that the court has power to order it to produce documents that it has asserted (in particular through Mr Bowler’s second affidavit) are not within its possession, custody or control is unclear.
Yara has conceded that there may have been documents that would fit the descriptions in part of paragraphs 3 and 4 and 18 of the Notice, but has claimed that such documents were not within its control because, as attested to by Mr Bowler in his second affidavit, the Yara group of companies has a policy (in its Operating Standard for Data Retention a copy of which was annexed to the affidavit) that after a former employee’s immediate supervisor has signed off and verified that all work-related emails and documents have been archived, the former employee’s email account and personal home folder is ordinarily deleted. In response to Mr Bowler’s inquiries, Yara employees responsible for IT systems advised him that such a deleted email account could only be retrieved by Yara within 30 days of deletion. Thereafter, the account would be permanently deleted unless it had been placed on litigation hold (which has not occurred in this instance in relation to the emails accounts in question). Mr Bowler’s second affidavit detailed further inquiries he made in response to the concerns raised in Ms McAlister’s affidavit and the responses as to whether documents sought were in Yara’s control. Specific responses are referred to below where relevant.
In any event, Yara contended generally that the documents sought in the contested paragraphs were not apparently relevant, that having regard to the case articulated by Ms McAlister the provision of such documents would not narrow the issues and may extend the trial and that the Notice was onerous and burdensome in terms of the breadth of documents sought. With limited exceptions (discussed below) I agree. Hence it is unnecessary to address in principle Ms McAlister’s extensive submission as to further searches and inquiries (including engaging an external document recovery specialist) that she has suggested Yara should carry out.
Paragraph 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.
Yara stated that it would have been prepared to produce this document if it had been able to locate it, but that Ms Larsen (the HR Manager, Australia and PNG) had confirmed that she had conducted a search but was unable to locate any signed version of this performance plan (which relates to Ms McAlister’s performance in 2014).
In support of the Objection, Yara contended that it had carried out reasonable searches of its databases and that it did not have a signed copy of this performance plan for Ms McAlister in its possession or control.
Ms McAlister argued that as Yara had produced an unsigned copy of this document (in response to paragraph 2 of the Notice) it should also have the signed version which, Ms McAlister suggested, would be annotated with “Employee Comments” and an indication of the key performance indicators (KPIs) she achieved in 2014. She submitted that the signed performance plan was relevant because it related to whether her conduct amounted to serious misconduct. It was also said to be relevant in assessing the period of reasonable notice.
Ms McAlister complained that Yara had not given evidence as to exactly what searches and inquiries had been made in relation to locating the signed version of the document and that Yara should be ordered to produce this document, even if it had to engage an external document recovery specialist.
Critically, however, there is no allegation in these proceedings that issues in relation to Ms McAlister’s performance relevant to the events in 2015 (including the October 2015 investigation and termination of her employment) were identified during 2014. The restructure, events said to constitute complaints and inquiries within the FW Act, and the asserted adverse action did not occur until 2015.
Ms McAlister has not satisfied me that a signed copy of the performance plan (even if it included employee comments and indications of whether she met KPIs in 2014) is of sufficient relevance to the issues in these proceedings to order that Yara take further action to produce a document that its HR Manager has been unable to locate. It is not clear how the signed performance plan could be of any apparent relevance. The matters pleaded as the reasons for Ms McAlister’s dismissal and other asserted adverse action (in both the FASOC and the Defence) do not relate to whether she met her KPIs in 2014.
Further, in Elwin v Edwards Motors Pty Ltd & Ors [2015] FCCA 334 at [191] Lucev J stated that:
… What is a reasonable period of notice is to be determined as at the date of notification having regard to all relevant circumstances. The length of the required notice in any case is a question of fact to be decided in the light of the objective circumstances as they exist at the time the notice is, or should have been, given. The considerations which may be relevant to the determination of the period of reasonable notice include:
a. the “high grade” and importance of the position;
b. the size of the salary;
c. the nature of the employment;
d. the employee's length of service;
e. the professional standing, age, qualifications, experience and job mobility of the employee;
f. the expected period of time it would take the employee to find alternative employment; and
g. the period that, apart from the dismissal, the employee would have continued in the employment.
(emphasis added)
Ms McAlister’s submission that (in effect) a document revealing her comments and the extent to which she was assessed in early 2015 as having met her KPIs in 2014 would be of apparent relevance to the period she would have continue in employment with Yara or the extent of the loss she suffered because of any breach of contract consisting of a failure to give her reasonable notice in October 2015, is not supported by this authority.
Paragraph 1 of the Notice should be set aside.
Paragraph 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
Yara opposed production of the documents sought on the basis that this paragraph was in the nature of discovery and did not seek production of specific documents. It was submitted that in addition to lacking specificity, this request would require analysis of the content of every document, including emails, text messages and Lync messages exchanged between any of 5 named people within a 10 month period for the appearance of the Applicant’s name. The request was said to be too broad in that there was no attempt to limit the documents to the period of alleged adverse action and the time range, including 6 weeks post-termination of Ms McAlister’s employment, was said to be too extensive.
Yara also submitted that this paragraph was unclear. While it commenced by requesting “all documents”, this was seemingly narrowed by the statement that what was sought were emails that referred to Ms McAlister “in the body or subject line of the email”. Yara noted that it was unclear on what basis the other documents sought (such as text messages and Lync messages) could be identified.
Yara also argued that the documents sought were of no apparent relevance, in that they were not confined to documents in relation to Ms McAlister’s job or role and that, in any event, there was no allegation that her employment was terminated because of her performance, but rather because of particular conduct.
Yara contended that the views of Mr Wiseman, Ms Larsen and Mr Narasimha were not matters in issue. Further, Mr Narasimha is not a witness. Ms McAlister has pleaded that Ms Magnussen and Mr Sullivan were the decision-makers in relation to the claimed adverse action. According to Yara Ms Magnussen was the sole decision-maker. As Mr Sullivan and Mr Wiseman are no longer employees of Yara, it was contended that even if there had been email messages between these two people, those documents would have been deleted under Yara’s document deletion policy.
Yara also suggested that Ms Magnussen had provided all of the emails or messages in her possession that were relevant for the purposes of her decision to commence the investigation or that referred to Ms McAlister in relation to the decision to terminate her employment.
Ms McAlister argued that Yara should engage a document recovery specialist to restore deleted emails as there was “no evidence that this process would not be fruitful”. Ms McAlister submitted that the pleadings and affidavits filed indicated that Ms Magnussen consulted other employees as to the “restructure” and decisions to investigate and dismiss her. The evidence was also said to indicate that Ms Magnussen and/or Mr Sullivan would have made statements to Ms Larsen and Mr Narasimha about the reasons for investigating and dismissing Ms McAlister. It was argued that such communications were, as described in Board of Bendigo Regional Institute of Technology and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 at [45], a source of potentially contradictory evidence given by the decision-maker or other objective facts that could limit the value of the decision-maker’s evidence as to the reason for the dismissal.
It was also submitted that it was not unreasonable to think that Mr Wiseman, as an employee of Yara who effectively occupied a more senior position than Ms McAlister, would have known or been consulted about her intended and actual dismissal, the context of the restructure and/or age and disability issues. Ms McAlister also contended that there were reasonable grounds to believe that Mr Wiseman was involved with her dismissal, as he may have given information to Ms Magnussen and Mr Sullivan about the TransAction contract which was one of the grounds for her dismissal or, alternatively, that there may have been communication with him about her performance.
Ms McAlister submitted that Ms Larsen was involved in the investigation and in her dismissal and that she had possibly drafted the termination letter. Ms McAlister also pointed to the fact that Ms Larsen’s evidence was that Ms Magnussen told her that she would be seeking approval from Mr Narasimha and another person in Singapore to terminate Ms McAlister’s employment for serious misconduct.
Ms McAlister contended that “[i]t is not fishing to seek documents when there are reasonable grounds to think that fish of the relevant type are in the pond” and that documents relevant to credit may be the subject of a notice to produce (see Liristis v Gadelrabb at [5] per Brereton J).
Ms McAlister contended that the term “specified documents” was to be understood in the sense explained in PatongaBeach Holdings at [12] in relation to r.34 in the UCPR. The word “specified” was said to mean “described” or “identified” and to correspond with the requirement under r.33 of the UCPR that a subpoena to produce documents identify documents by “cut[ting] the documents out of the universe of documents by some description or specification” (Patonga Beach Holdings at [13]). It was suggested that documents had been “specified” in this sense.
Ms McAlister submitted that the evidence and pleadings were sufficient to establish apparent relevance in relation to the true reason for the investigation and the termination of her employment, as well as the quality of her performance. In particular, it was argued that if there were other people whose reasons had a material effect on the reasoning process that preceded the ultimate decision, these people must be identified and their reasoning examined to assess whether they were affected by a proscribed reason (see Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014 at [120] - [122]).
As drafted, this paragraph is unclear. It is not clear how documents other than emails could “refer to the Applicant in the email’s body and/or subject line”, and Ms McAlister has not suggested that this is a typographical error or infelicitous drafting. It also amounts to an attempt to require Yara to give discovery of the wide categories of documents listed. It seeks documents exchanged between any two of the named persons containing any reference at all to Ms McAlister over a lengthy period of time, including post-termination. As such, it may be viewed as fishing.
Insofar as this paragraph seeks emails between or among persons other than the ultimate decision-maker, Ms Magnussen, such documents have not been shown to be of apparent relevance to the issues in these proceedings. However, emails exchanged between Ms Magnussen and any of the other persons named in this paragraph in the period from 1 February 2015 up to the date of Ms McAlister’s termination which refer to Ms McAlister in the email’s body and/or subject line are of sufficient apparent relevance to the issues of the reason for the asserted adverse action. As Reeves J stated in Clermont Coal at [120] – [121]:
120. These authorities therefore place the focus on the reasoning process that led to the ultimate decision. Where the decision was made by one person and her or his reasoning for the decision was based on one incident involving the employee, the task is relatively straightforward. The judgments in Barclay and BHP Coal require a focus on the reasoning process employed by that person to determine whether the employer has discharged its onus under s 361(1) of the FWA to show that the reasoning process did not include, as a substantial and operative reason, the alleged prohibited reason or reasons. However, the employer is only required to show that none of those reasons was a “substantial and operative reason“. It does not need to negate every reason, however immaterial it was to the reasoning process underpinning the decision to dismiss the employee concerned: see Barclay at [104] and [127] per Gummow and Hayne JJ, and [140] per Heydon J.
121. On the other hand, where the reasoning process is dispersed through an assessment process involving a number of persons, the task is much more complicated. In that situation, I consider the judgment in Kodak requires me to examine the reasoning process employed by each person whose involvement had a material effect on the ultimate decision. This inquiry does not involve a roving search of the minds of the employees of the kind rejected by Heydon J in Barclay (at [146]). Nor does it involve an objective inquiry of the kind rejected in Barclay (at [44] and [126]), nor import some “unconscious” reasoning to the ultimate decision-maker that was also rejected in Barclay (at [124] per Gummow and Hayne JJ, and [146] per Heydon J). Instead, it focuses on the conscious reasoning processes of those who had a material effect on the ultimate outcome to determine whether their reasoning processes were free of the alleged prohibited reason or reasons. If one or more of the reasons employed by one or more of them was a prohibited reason, that will impugn the ultimate decision. This is what I consider the Full Court meant by “inadvertently” adopting an “undisclosed prohibited reason” in Kodak (see at [117] above).
An issue raised in these proceedings relates to whether the decision-making in relation to any of the asserted adverse action involved the sort of reasoning process referred to by Reeves J at [120] or that discussed in [121]. If the latter, the reasoning process of persons whose reasons had a material effect would be relevant and may “impugn” the ultimate decision. In that respect, I note that in the FASOC it is asserted (in paragraph 68) that (in addition to the investigation and dismissal), by engaging in specified pleaded conduct between February 2015 and October 2015 Yara took adverse action because of Ms McAlister’s age and/or physical disability within s.351 of the FW Act or injured her in her employment and/or altered her position to her prejudice within s.342 (and s.340) of the FW Act.
I am satisfied that emails between Ms Magnussen and any of the other named persons which refer to Ms McAlister in the email’s body and/or subject line from 1 February 2015 up to 16 October 2015, the date of the termination of Ms McAlister’s employment, are of apparent relevance. There is a legitimate forensic purpose in seeking these identifiable documents having regard to the potential use of any such documents in the context of the legal and factual issues to be determined.
There is no suggestion that emails between Ms Magnussen and former employees would not be in existence and available. As Ms McAlister submitted, it can reasonably be expected that there may be such emails in the possession, custody or control of Yara. I am not satisfied that such limited further production would be unduly onerous or burdensome on Yara.
Yara has produced documents which were attached to an email as to the result of the investigation, although it appears that this was not in response to paragraph 3. If this email is in fact the only email between Ms Magnussen and any of the other named persons in the period 1 February 2015 and 16 October 2015 that referred to Ms McAlister in its body or subject line, this should be clarified by affidavit evidence from Yara. Mr Bowler’s affidavit and the annexures thereto do not make this clear.
Hence, emails exchanged between Ms Magnussen and any of Mr Wiseman, Mr Sullivan, Ms Larsen and/or Mr Narasimha between 1 February 2015 and 16 October 2015 which refer to Ms McAlister in the email’s body and/or subject line should be produced or an affidavit filed and served by Yara in explanation.
Otherwise this paragraph should be struck out.
Paragraph 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).
Ms McAlister contended that the test of apparent relevance was met as the meetings and/or conversations referred to paragraphs 4.1 and 4.3 were in relation to the workplace restructure, and the conversations referred to in 4.7 was in relation to the investigation and such matters were the subject of factual disputes on the evidence. It was also submitted that the meetings and conversations between Yara’s representatives referred to in paragraphs 4.2, 4.4, 4.5 and 4.6 were the subject of pleaded allegations in relation to the alleged complaints or inquiries made by Ms McAlister.
Yara has explained that documents in the possession of Ms Magnussen referred to in subparagraphs 4.1, 4.2, 4.3, 4.7 have been provided to Ms McAlister or were attached to Ms Magnussen’s affidavit. Documents such as emails in relation to investigation and termination of Ms McAlister’s employment and documents from Ms McAlister’s hard copy personnel file have also been produced to Ms McAlister.
However Yara objected to the production of the documents referred to in subparagraphs 4.4, 4.5, 4.6 on the basis that the requests in these paragraphs lacked specificity; were too broad; were in the nature of discovery; were of no apparent relevance and were onerous and burdensome.
Yara acknowledged that documents created by Ms Magnussen or Mr Sullivan in relation to the conversations referred to in subparagraphs 4.4, 4.5 and 4.6 may be of potential relevance. However it was pointed out that paragraph 4 sought “all documents” created by any of the five named people in paragraph 3. It was argued that in this respect paragraph 4 was onerous and was not apparently relevant insofar as it sought the views and opinions of Mr Wiseman, Ms Larsen and Mr Narasimha as these were not matters in issue.
As to Mr Sullivan and Ms Magnussen, Mr Bowler’s evidence is that he was advised by Mr Sullivan (as well as Ms Larsen) that he did not make any file notes or other documents recording what was discussed during any of the listed meetings with Ms McAlister. Ms Magnussen had also advised that she did not have any file notes or documents recording any of these conversations with Ms McAlister.
As Bromberg J stated in Comcare at [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…
As drafted, and insofar as it relates to documents created by persons other than Ms Magnussen or Mr Sullivan, paragraph 4 is too broad and not of apparent relevance.
I am also not satisfied that file notes prepared by any of the five persons listed in paragraph 3 in relation to these meetings can reasonably be expected to be available. Mr Wiseman is no longer a Yara employee. There is no suggestion that Mr Narasimha attended any of these meetings. Hard copy documents from Ms McAlister’s personnel file have been produced. Specific inquiries have been made of Mr Sullivan and Ms Magnussen (and Ms Larsen). I accept Mr Bowler’s evidence that Mr Sullivan advised him that he did not make any file notes or other documents recording what was discussed during his meeting with Ms McAlister on the dates referred to and that Ms Magnussen advised (in an email attached to Mr Bowler’s second affidavit) that she did not have any file notes of the meetings. In particular, Ms Magnussen addressed the notebook or reflection document in which she made notes of the meeting in February 2015 (subparagraph 4.1), but advised that she did not have it any longer.
In other words, reasonable inquiries have been made by Yara, but it has no such documents in its possession, custody or control other than what has been provided or is attached to Ms Magnussen’s affidavit.
Paragraph 4 should be set aside.
Paragraph 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;
Yara objected to production of such documents on the basis that the breadth of the request was so wide that apparent relevance was not established and that the request was onerous and burdensome. Yara argued that this paragraph lacked specificity; was too broad in referring to “all letters of authority” signed by any of five people over; covered a 10 month period and was in the nature of discovery. It was pointed out that the paragraph was not limited to the conduct of Ms McAlister in issue in these proceedings and extended to four other employees and their authority to deal with other entities. It was said to relate to internal processes of Yara involving numerous people who were not parties to the dispute. It was pointed out that these other employees had different roles and responsibilities to the Applicant. Yara also argued that it was not relevant whether other employees could carry out certain work in dealing with third party providers. Further, it was not alleged that Ms McAlister was not authorised at all to deal with other companies.
Ms McAlister submitted that these documents were relevant to whether she had authority to sign letters of authority at the time she signed the Magellan Authority and whether signing a letter of authority with or without an IDD check in relation to the company in question was a matter sufficiently serious to amount to serious misconduct and justify summary dismissal.
Ms McAlister claimed that the expression “letter of authority” did not require clarification, because the pleadings referred to signing the Magellan Authority, which was described as an authority letter or letter of authority. She contended that if letters of authority had been signed by other people without having had a supervisor “sign off” (as attested to by Mr and Ms Marsh) this would indicate that they were of a routine or administrative nature and that this was relevant to the issue of whether she engaged in serious misconduct and her claim for reasonable notice and also as to whether Yara met the onus under s.361 of the FW Act.
It was contended that despite the fact that Ms Murphy and Ms Tankard were not witnesses in these proceedings, other witnesses could be asked if they had signed letters of authority.
Ms McAlister has not satisfied me that this paragraph has a legitimate forensic purpose. Whether letters of authority were signed without prior authorisation is not likely to throw light on an issue or issues in the proceedings. It is not of apparent relevance to the issue about Ms McAlister’s signature of a contract such as the TransAction contract.
As to letters of authority, what is relevantly in issue is whether Ms McAlister signed a letter of authority for Magellan to take over customs clearance operations on behalf of Yara (as pleaded in the FASOC) in circumstances where this permitted goods to be released to a company (Magellan) for which Yara had not conducted an integrity due diligence check, with which it had no contractual relationship and which was not an approved customs broker (as pleaded in the Defence at paragraphs 43 to 64).
This paragraph seeks copies of all letters of authority signed by Ms McAlister and other employees over a period of nearly 10 months. It is too wide, in the nature of discovery, and has not been shown to be of apparent relevance such as to establish a legitimate forensic purpose. Production of these documents would not reveal whether the people in question had authority from Yara which extended to the particular circumstances of each letter of authority or whether a due diligence check had been conducted for each company. Production of the documents sought (which also relate in part to persons who are not witnesses) would be likely to expand the issues and the trial. This paragraph should be set aside.
Paragraph 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
Yara objected to production of the documents sought having regard to the lack of specificity and breadth of this paragraph and the fact it does not relate to Ms McAlister’s conduct or role. This paragraph was said to be in the nature of discovery and such as to require a complex search of technology systems for a 22 month period.
Ms McAlister argued that this request for documents was relevant because it could show that her signature on the Magellan Authority was authorised in circumstances where she understood shipping documents continued to be sent to TransAction and Magellan.
This paragraph is very broad. It is the nature of discovery. It covers an extended period of time, including long after Ms McAlister’s employment ceased. As set out above, what is relevantly in issue in relation to Magellan is Ms McAlister’s authority to sign a letter of authority in particular circumstances, including the absence of an existing IDD check. What may or may not have occurred thereafter, involving other Yara employees, as evidenced by emails, forms and letters exchanged between Mr Marsh and Mr Wiseman or Ms Murphy (including after Ms McAlister’s employment ended) has not been shown to be of apparent relevance to issues in these proceedings. Production of documents for the period referred to, given the range of documents described, would in these circumstances be unduly burdensome.
As to TransAction, the issue identified in the pleadings relates to whether Ms McAlister signed a contract with TransAction in November 2014 or in March 2015 and whether she was authorised on behalf of Yara to do so, as well as matters such as whether she misrepresented when the contract was signed (as pleaded in paragraphs 35 of the FASOC and paragraphs 43 to 64 of the Defence).
It has not been established that the documents sought in paragraph 9 could rationally affect (directly or indirectly) the assessment of the probability of any fact in issue in the principal proceedings.
Yara pleaded in its Defence that it informed Mr Marsh that it was terminating its business arrangements with TransAction on 1 October 2015 and the Defence refers to subsequent communications in October 2015 between Mr Marsh and Mr Sullivan. The communications referred to are attached to Mr Sullivan’s affidavit. If there are other written communications to which Mr Marsh was a party of the nature sought in this paragraph, Mr Marsh (who has sworn two affidavits) could have given such evidence.
Ms McAlister has not satisfied me that there is a legitimate forensic purpose in seeking “all emails, forms and letters” exchanged between Mr Marsh and Mr Wiseman or Ms Murphy between 15 August 2015 and 30 June 2017. This paragraph should be set aside.
Paragraph 11
Electronic Import Delivery Order or Orders issued by Yang Ming (Australia) Pty Ltd to the email address [email protected] during the period 1 September to 1 November 2015.
According to one of Ms McAlister’s affidavits, Yang Ming (Australia) Pty Ltd (Yang Ming) was the shipping company that in September 2015 was said to have required a new letter of authority for Magellan to collect Yara containers from the wharf. It was Ms McAlister’s signature of such an authority (referred to on its face as an Electronic Import Delivery Order) on 14 September 2015 that is pleaded as her signature of the Magellan Authority.
Ms McAlister contended that production of these documents would be relevant to whether Yara “knew” that it was dealing with Magellan and “therefore” whether she had engaged in misconduct.
Yara objected to production of such documents and submitted that, contrary to Ms McAlister’s contention, it was entirely irrelevant whether Mr Wiseman was aware of communications in relation to Magellan. Yara also argued that this request lacked specificity, was too broad and was in the nature of discovery. In essence, Yara contended that the documents sought were of no apparent relevance to Ms McAlister’s conduct or role or to matters in issue in these proceedings. In particular, Yara submitted that any continued business with Magellan could shed no light on the reason for Ms McAlister’s termination or whether Ms McAlister had authority to sign the letter of authority in question in relation to Magellan in the particular circumstances in which she did so.
Yara also queried how Mr Wiseman’s knowledge of any electronic import delivery orders issued by Yang Ming could be relevant, as Mr Wiseman was not a decision-maker in relation to the investigation or termination of Ms McAlister’s employment.
As drafted this paragraph is too wide. Ms McAlister has not established the apparent relevance of electronic import delivery orders issued by Yang Ming after her employment was terminated. This paragraph should be set aside to the extent it seeks documents dated after Ms McAlister’s termination. However, I am satisfied there is a legitimate forensic purpose insofar as this paragraph relates to the period 1 September 2015 to 16 October 2015 in circumstances where the documents sought appear to be of the same nature as the Magellan Authority referred to in the pleadings.
Ms McAlister has satisfied me that the documents sought in this paragraph that were issued between 1 September 2015 and 16 October 2015 are of potential relevance to the issue of whether she in fact engaged in serious misconduct and that there is a legitimate forensic purpose in seeking such documents.
As indicated, the parties disagree as to whether serious misconduct will be in issue at the trial. However, whether or not Yara seeks to establish that Ms McAlister engaged in serious misconduct (and notwithstanding the approach taken by the High Court in Barclay in relation to the onus under s.361(1) of the FW Act), having regard to the pleadings, the documents sought may be relevant in relation not only to that issue, but also to whether Yara’s evidence in relation to meeting the s.361(1) onus is persuasive. If there are no such documents, this should be addressed in Yara’s affidavit.
Paragraph 12
Any approval issued by Yara following Integrity Due Diligence (IDD) Review of Magellan during the period 1 October 2015 and 30 June 2016.
Yara objected to this paragraph on the basis that it was in the nature of discovery, was onerous and burdensome and had no apparent relevance in that it did not relate to the conduct or the role of Ms McAlister. Yara reiterated that the matter in issue was not whether Ms McAlister conducted business with Magellan, but whether she had the authority to sign a letter of authority for Magellan in the particular circumstances in which she did so. Yara also contended that this request was trawling for documents not related to the issues in dispute.
Ms McAlister argued that the relevance of the documents sought in this paragraph went to whether Yara continued to deal with Magellan after October 2015 without completing the IDD processes and thus to the true reason for the investigation and her dismissal. It was argued that if in fact the IDD process was not completed for Magellan but Yara was prepared to do business with it, then this would suggest the issues in relation to Magellan were not in fact any part of the reason for her dismissal.
Ms McAlister also argued that if, after her employment ended, Magellan was approved, this would suggest that the Magellan issue was not a genuine reason for her dismissal.
As Yara pointed out, paragraph 12 appears to assume Yara was involved with Magellan from 2015 to mid-2016. The request is in the nature of discovery and amounts to fishing. Ms McAlister has not established grounds for a belief that such documents exist. If there are such documents, production would be likely to expand the trial. The matter in issue is not whether Yara dealt with Magellan after October 2015 (or whether Magellan subsequently underwent or “passed” any IDD check) but whether in September 2015 Ms McAlister had authority to conduct herself in relation to Magellan as she did. This paragraph should be set aside.
Paragraph 14
All expense claim forms for Ms McAlister signed by Ms Magnussen in the period 1 February 2015 to 30 June 2015.
Yara objected to production of such documents on the basis that it was unclear how knowledge on the part of Ms Magnussen of Ms McAlister’s expense claims was of any relevance to matters in issue. It was pointed out that the parties agreed that some of Ms McAlister’s entitlements were stopped on a certain date (although the parties differed over whether her “travel account” was cancelled (FASOC at [19]) or whether Ms McAlister was advised that her salary sacrifice arrangements could not continue (Defence at [25])). Yara acknowledged that Ms McAlister pleaded (in paragraph 40A of the FASOC) that by failing to pay her travel allowance from 11 June 2015 Yara breached an express term of her contract, but contended that the documents sought had no apparent relevance to matters in issue.
Ms McAlister conceded that there was nothing in the pleadings or evidence that referred to Ms Magnussen signing (or not signing) her expense claims forms for work travel expenses, but argued that these documents would go to Ms Magnussen’s credit as relevant to her knowledge of Ms McAlister’s salary sacrifice arrangement and whether the expenses signed off were personal rather than work-related. Ms McAlister contended that the way the items claimed were described in expense forms she submitted before June 2015 would show whether it was plain to Ms Magnussen that the expenses she signed off for were personal rather than work-related.
It is not apparent how the documents sought would be of any relevance to the breach of contract claim or to the claim that the failure to consult with Ms McAlister before cancelling her travel account and the taking of this measure without her consent amounted to adverse action within s.342 or s.351 of the FW Act (as pleaded in paragraph 68 of the FASOC).
Ms McAlister had failed to articulate a case that would support an order for production of the documents referred to in this paragraph. She has not established the apparent relevance of any such forms to the pleaded FW Act claims or to the issue of whether there was a term of the contract as pleaded and, if so, whether it was breached.
Insofar as the relevance asserted by Ms McAlister is to Ms Magnussen’s credit, it is not sufficient, in itself, merely to say that the documents sought relate to the credit of a witness (see Thomas at [19] per Pembroke J, cited in Comcare at [35]). Ms McAlister has not identified what the legitimate forensic purpose really is, having regard to the nature of the documents sought and the issues raised by the asserted breach by Yara of an express term of the contract in failing to pay Ms McAlister travel allowance after 11 June 2015. The suggested connection between the documents sought in relation to a claimed terminated contractual entitlement and Ms Magnussen’s credit is “strained, opaque and speculative” (Thomas at [19]).
I also bear in mind that the court should exercise particular caution where part of a notice to produce (or a subpoena) is sought to be justified solely on the basis that it will go to credit (Thomas at [19] and see Fried at [27] per Weinberg J). I am not satisfied as to “the utility of the production of the documents” sought in this paragraph, having regard to “the need to control and confine cross-examination within manageable limits” (Thomas at [19]). This paragraph should be set aside.
Paragraph 15
All letters or certificates that record Yara’s Level 1 AQIS classification in the period 1 January 2014 to 16 October 2016 inclusive.
Yara objected to the production of these documents on the basis that they had no apparent relevance. It noted that documents were sought for a period of nearly two years. It pointed out that whether Ms McAlister had a role in relation to dealing with some letters and certificates in relation to Yara’s AQIS classification was not an issue in dispute in these proceedings. Further, it is not disputed that Ms McAlister’s role changed significantly in April 2015. Yara argued that it is not apparent how records of Yara’s AQIS classification could be relevant.
Ms McAlister contended that this request was relevant to a determination of whether particular conduct on her part amounted to “serious misconduct” (see Jeavons v Entram Pty Ltd [2015] FCCA 3457 at [330]) in circumstances where she claimed in an affidavit filed in these proceedings that she had been “solely responsible for getting Yara up to Level 1 for AQIS”.
This paragraph is widely drafted to include all “letters” as well as certificates that “record” Yara’s AQIS classification over an extensive period, including both before and after the period in issue in these proceedings. It is in the nature of discovery. There is no suggestion in the pleading or evidence that Ms McAlister’s role in relation to Yara’s AQIS classification was in any way relevant to matters related to her adverse action and/or breach of contract claims. A legitimate forensic purpose has not been established. I am not satisfied that the documents requested are in any way of apparent relevance to matters in issue in these proceedings. This paragraph should be set aside.
Paragraph 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.
Yara opposed production of such documents. It has contended that the apparent relevance of records of such complaints and claims had not been established. Yara conceded that if there were any contraventions by it of the FW Act this would be relevant to penalty proceedings (see Kelly v Fitzpatrick [2007] FCA 1080) but contended that there was no suggestion that there were any similar contraventions and that, in any event, matters relevant to any penalty should be raised after the court determined what conduct, if any, was in contravention of the FW Act.
Ms McAlister submitted that any previous instances of FW Act contraventions by Yara would be relevant to the imposition of penalties under s.546 of the Act. She submitted that a separate penalty hearing would not be just, quick or cheap (and see Robinson v Western Union Business Solutions (Australia) Pty Ltd [2018] FCA 1913 at [109] - [115], also Tomland v Toll Transport Pty Ltd [2017] FCA 1208 at [297] - [308] and Kassis v Republic of Lebanon [2014] FCCA 155; (2014) 282 FLR 408).
This paragraph does not relate to the conduct or role of Ms McAlister. It covers a period of 8 years. It seeks discovery. Further, as Yara submitted, records of previous “complaints” or “claims” by other Yara employees are not of apparent relevance to these proceedings.
A separate penalty hearing, after the hearing on, and determination of, liability, would generally be appropriate in relation to a matter involving allegations of numerous FW Act contraventions. That would be so for obvious reasons (including the relevance of the circumstances in which any particular contravention occurred and the consideration of whether there was a course of conduct). In this case some 13 contraventions of the FW Act are alleged. It would be very difficult for the parties to make meaningful submissions about penalty before liability was determined. Of course, the approach to be taken in this case will be a matter for the trial judge.
In any event, complaints and claims are not in themselves evidence of contraventions. Further, the present action is not a proceeding in relation to workplace bullying (which is a matter dealt with by the Fair Work Commission). The apparent relevance of the documents sought (even to a penalty hearing) has not been established. No legitimate forensic purpose is apparent. This paragraph should be set aside.
Paragraph 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.
Ms McAlister claimed that these documents were relevant to her allegation of age discrimination. In her affidavit Ms McAlister contended that insofar as the solicitors for Yara initially claimed that no documents of this description were in its possession, she had a copy of such a spreadsheet that she had printed from the HRIS system as at 1 May 2015 (which she annexed to her affidavit). Hence she claimed that she believed that Yara must have copies of such spreadsheets as at the dates referred to in this paragraph.
Yara claimed that, as attested to in an annexure to Mr Bowler’s second affidavit, reasonable searches had been carried out and it had not located any documents that fit this description. It was also contended that any such documents would not in themselves be relevant unless there was also evidence of the circumstances in which other employees referred to in any such spreadsheets left Yara’s employment and what role they had (which is not the case).
In his second affidavit Mr Bowler attached a response from Ms Larsen to his email requesting confirmation that searches were conducted for documents described in paragraph 17 of the Notice. Ms Larsen advised that she had checked with IT, which had run a check for such documents but was unable to locate them.
Even if this is difficult to reconcile with the apparent existence of such a document as at 1 May 2015, I have had regard to the lack of sufficient apparent relevance of such documents. The production of such documents would not be likely to limit issues, but rather to extend the trial and, indeed, to require further evidence (as Yara submitted). I am not satisfied that such documents could rationally affect the assessment of the probability of the existence of a fact in issue or that they would otherwise be reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case. Apparent relevance to an issue “is 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] citing Dorajay at [17] per Stone J). This paragraph should be set aside.
Paragraph 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.
Ms McAlister contended that any such documents would be relevant as revealing Yara’s attitude to her proposed back surgery and the true reason for her dismissal.
Yara initially claimed that it did not possess any emails or Lync messages of the nature described in this paragraph, but explained that after further searches were conducted Ms Magnussen located a copy of an email sent by Ms McAlister to Mr Sullivan. This document was produced. Yara argued that it was not in possession of any further such documents. It also referred to the company’s policy of deleting email accounts of former employees. Both Ms McAlister and Mr Sullivan are former employees.
This request is in the nature of discovery. Yara has produced an email. There is no suggestion in Ms McAlister’s evidence that other such documents exist.
I am not satisfied that Ms McAlister has established grounds for a belief that any further documents exist. Nor am I satisfied that such documents are available in the sense that they are in the possession, custody or control of Yara. This paragraph should be set aside.
Paragraph 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.
Ms McAlister contended such documents would be relevant in showing whether her role was in fact made redundant in the context of the overall restructure of Yara.
Yara objected to the production of such a broad category of documents in relation to redundancies of unspecified employees as in the nature of discovery. It was also submitted that there was no apparent relevance, given that this request did not relate to the conduct or role of Ms McAlister. Yara pointed out that there was already substantial evidence from Ms McAlister and Ms Magnussen as to how Ms McAlister’s role had changed and what duties were transferred to other employees. It was submitted that the fact that other positions, different to that held by Ms McAlister, may have been made redundant was not relevant to any matters in issue. There was also said to be no dispute in the evidence that the planning function was required by Yara and was being performed.
This paragraph seeks documents about other roles that were made redundant, in particular following the April 2015 Yara restructure. It is not clear how such documents could be of apparent relevance to whether Ms McAlister’s role was made redundant on 16 October 2015. Rather than being material that would reasonably be expected to throw light on any of the issues in the proceedings, this material appears to be sought on the basis that it “might permit a case to be made” (see Comcare at [28]). This is not a legitimate forensic purpose for a notice to produce. This paragraph should be set aside.
Paragraph 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.
Ms McAlister initially submitted that such documents would be relevant to the credit of Mr Wiseman and/or Mr Sullivan on the basis that there may have been contractual obligations on their part to co-operate with Yara or to assist it in providing their evidence.
Yara claimed that it had initially understood from Ms McAlister’s explanation that the reference to “letters” in this paragraph was limited to any deeds or agreements and had stated that it did not have any such documents. However on the basis that “letters” may refer to any letters, it later provided copies of Mr Sullivan’s and Mr Wiseman’s resignation letters. It stated that it did not have any other letters, deeds or documents between Yara and either Mr Sullivan or Mr Wiseman which were signed in the period 1 April 2016 and 1 July 2017.
Yara conceded that documents going to credit may be the subject of a notice to produce, but contended that, as drafted, paragraph 20 was in the nature of discovery and pointed out that documents merely going to credit were not discoverable (Liristis v Gadelrabb).
There was nothing in the pleading or filed evidence to suggest that there were “reasonable grounds to think” that it was “on the cards” that relevant documents (even if relevant only to credit) would be elicited by this paragraph of the Notice (see Liristis v Gadelrabb at [5] and Comcare at [34]). However on 1 February 2019 Yara produced further documents in response to paragraphs 20, 22 and 23, including a copy of Mr Sullivan’s exit interview form (apparently produced in response to paragraph 23 which specifically requested exit interviews). Mr Sullivan’s exit interview form included a comment “LSL payout on the finalisation of the McAlister Case”.
Ms McAlister then submitted that on her calculations the Long Service Leave Act 1955 (NSW) would not have entitled Mr Sullivan to pro-rata long service leave, and pointed out that even if he did have such an entitlement, it would have been payable forthwith at the date of termination.
It was submitted that in these circumstances it was a reasonable inference that such an “unusual” arrangement would have been formally documented and that it was also reasonable to infer that when Mr Wiseman left Yara’s employment it dealt with him in a similar way and documented such arrangement. Ms McAlister clarified that she now seeks documents under paragraph 20 which relate to the terms on which the employment of either Mr Sullivan or Mr Wiseman was to be finalised or to payments to Mr Sullivan or Mr Wiseman other than for salary, superannuation and statutory entitlements.
Ms Larsen has confirmed to Mr Bowler that no “payments” were made in the period 1 April 2016 and 1 July 2017 to Mr Sullivan or Mr Wiseman other than for salary, superannuation and statutory entitlements. However this confirmation does not address the documents now sought under paragraph 20 which, I note, would also not appear to fall within the Yara policy of deleting employees’ email accounts.
Whilst unorthodox, the lengthy process of pre-hearing, hearing, post-hearing and further post-hearing submissions after additional production has sufficiently specified documents sought under this paragraph (in contrast to the broad approach maintained by Ms McAlister in other respects). What is now sought is apparently intended to be confined to documentation of the terms on which Mr Sullivan’s or Mr Wiseman’s employment with Yara was to be finalised or a payment (other than for salary for time worked, superannuation and statutory entitlements) was to be made.
On this basis paragraph 20 is limited to specified documents. Yara’s initial response that paragraph 20 was in the nature of discovery is now a formal technical objection which, having regard to the objects of the of the FCC Rules (see r.1.03), ought not, of itself, to be a basis for refusing production of documents if such documents are reasonably likely to throw light on an issue or issues in the proceedings.
I bear in mind that, as Bromberg J pointed out in Comcare at [32], this involves an assessment as to whether the anticipated document can reasonably be expected to be available (that is, are there grounds for a belief that any such document exists and that it is available in the sense of in the possession, custody or control of Yara) and whether such material is relevant.
Having regard to Mr Sullivan’s exit interview, Ms McAlister has established that there are reasonable grounds for a belief that a document pertaining to the terms of finalisation of Mr Sullivan’s employment or on which a payment was to be made (other than payment for salary for time worked, superannuation and statutory entitlements) can reasonably be expected to be available.
I have considered the possibility that if such a document is available in relation to Mr Sullivan it will rationally affect the determination of a fact in issue. I have borne in mind the caution to be exercised where part of a notice to produce is sought to be justified solely to impeach the credit of a witness. However, there is a legitimate forensic purpose, having regard to the fact that Mr Sullivan is a significant witness for Yara. His credit may be relevant in the context of considering his involvement in the circumstances leading up to and said to constitute the alleged adverse action (see Clermont Coal and the discussion at [93] – [94] above).
Having regard to the potential importance of Mr Sullivan to aspect of Yara’s case, Ms McAlister should be able to explore his credibility and the reliability of his evidence (within the confines of the Evidence Act 1995 (Cth)). It is neither improper nor illegitimate for her to seek documents of relevance to this issue, given that, having regard to the comment on the exit interview form, there are reasonable grounds to think such a document or documents may exist and the fact that a connection between the documents sought and the credibility or reliability of Mr Sullivan’s evidence has been articulated. Such material is of apparent relevance and should be produced. However such grounds have not been established in relation to Mr Wiseman. Mere speculation does not suffice (see Thomas at [19]).
If, after conducting reasonable searches, Yara does not locate any such document in its possession, custody or control answering this more limited description, then this should be made clear in an affidavit.
However I would set aside paragraph 20 insofar as it extends beyond documents pertaining to the terms on which Mr Sullivan’s employment with Yara was to be finalised or payment was to be made to him other than for salary for time worked, superannuation and statutory entitlements.
Paragraph 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.
Ms McAlister contended that any such documents went to the motivation and the incentive that these two former Yara employees had to give evidence that favoured Yara. It was pointed out that in UTSA Pty Ltd (in liq) v Ultra Tune Australia Pty Ltd [2004] VSC 105 Habersberger J said at [147] “if there has been a payment to the witnesses, this fact should be disclosed to the Court before the evidence is given”.
Ms McAlister submitted that while the remarks of Habersberger J were made in the context of a costs dispute, the principles expressed transcend that context. It was submitted that the same concerns apply in relation to any contractual obligation a witness assumed regarding the giving of evidence. It was also submitted that documents that raised serious questions about the credibility or the reliability of the evidence of a witness were documents that it was entitled to have (see Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia SRL [2011] FCA 938; (2011) 283 ALR 137 at [260] - [264]).
It was also argued that the timeframe was appropriate having regard to the dates Mr Sullivan and Mr Wiseman ceased working for Yara and the possibility that any agreement or payment may have been made before or after their departure.
Ms McAlister submitted that it was a reasonable inference that such documents existed and that this was a relevant factor in deciding whether the Notice was oppressive and/or fishing.
Yara opposed production of such documents. It asserted that Ms McAlister’s submissions about this paragraph were unreasonable and misguided. It was pointed out that her solicitors had been informed that Yara did not have any documents of this description in its possession and that during cross-examination Mr Bowler had confirmed that his understanding was that Ms Larsen, being HR Manager for Yara, was directly responsible for the payments made to Mr Sullivan and Mr Wiseman at the end of their employment and that she had stated that no payments had been made to them other than their normal entitlements.
Yara conceded that no other searches were conducted for documents referred to in paragraph 21 of the Notice, because it had been confirmed by Ms Larsen that no such documents existed. It was submitted that, given Ms Larsen’s position, it was reasonable for Mr Bowler to accept her assertion that no additional payments had been made to Mr Sullivan and Mr Wiseman. It was argued that it would have been pointless to conduct searches for documents that Yara knew did not exist and that any records and payslips of final termination payments would only show payments of statutory entitlements and that such documents were not captured by paragraph 21 of the Notice.
Ms McAlister claimed that Yara’s evidence in respect to paragraph 21 showed that it had not conducted proper searches or made proper inquiries, in that Ms Larsen’s confirmation to Mr Bowler that no such payouts were made did not confirm that searches had been conducted.
However, as set out in emails attached to Mr Bowler’s second affidavit, Mr Bowler asked Ms Larsen to confirm that searches were conducted for the documents referred to in paragraph 21 and whether any documents corresponding to this category were located. The documents sought were described in full as “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”. Ms Larsen replied “I was involved in the payments for both ex employees and there were no other payments made other than their normal statutory entitlements”.
In other words, reasonable inquiries have been made of the HR Manager who has responded in relation to the whole of the period and addressed the nature of payments made in that time. I am not satisfied that there are reasonable grounds for a belief that such documents exist such Yara should be ordered to provide documents in response to this paragraph. It should be set aside.
Paragraph 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.
Yara objected to production. It argued that there was no apparent relevance; no legal basis for such request and that this paragraph was fishing. It was also submitted that the request was in the nature of discovery covering a period of 7 months post-termination.
In particular, Yara pointed out that insofar as Ms McAlister alleged in the FASOC that post-employment disparagement was a contravention of the general provisions of the FW Act, such allegation did not have any legal basis. Section 342(1) refers to adverse action taken by an employer against an employee. Ms McAlister was not employed by Yara when the alleged disparagement was said to have taken place.
Yara contended that paragraph 24 otherwise cast the net wider than the pleading permitted. It requests emails and letters, yet paragraphs 61 and 62 of the FASOC refer to an oral communication, in that Ms Magnussen was said to have told staff that Ms McAlister had left Yara due to integrity issues and to have asked the other employees for their feedback and comments.
Ms McAlister submitted that she should be allowed to “test” the allegations by Yara that it did not disparage her after her termination as she claimed occurred in contravention of the FW Act.
Ms McAlister claimed that the concept of fishing did not mean a party must already be in possession of some evidence before issuing a subpoena (or notice to produce) and that she was entitled to test the veracity of the allegation that Yara disparaged her following her termination.
Ms McAlister also contended that post-employment disparagement was a matter that the court could and should take into account when considering the imposition of a penalty (Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant & Bar [2007] FMCA 7 at [24]) and that evidence of disparagement was relevant to damages.
Ms McAlister has not responded to the fact that s.342 of the FW Act (which defines adverse action) does not on its face apply to action between a former employer and former employee (as distinct from between a prospective employer and a prospective employee or an employer and an employee). She has not explained how it could be said that post-employment disparagement could, even arguably, fall within s.342 of the FW Act as injuring her “in her employment”. No other legal basis is asserted for an action against Yara in respect of the asserted disparagement and any claimed loss occasioned thereby.
As to potential relevance to penalties, as indicated above, the material in issue would only become of potential relevance if a contravention or contraventions of the FW Act were to be established. It has not been shown to be of apparent relevance to the hearing on liability. This paragraph should be set aside.
Date for Production and Costs Issues
I understand that the parties differ as to the appropriate date for production. They have each indicated that they seek the costs of the interlocutory proceedings in relation to the Notice. I will hear the parties as to the date for production and costs.
I certify that the preceding one hundred and ninety-two (192) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 24 July 2019
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