McAlister v Yara Australia Pty Ltd

Janelle McAlister (the Applicant) commenced proceedings in the Federal Circuit Court of Australia against her former employer, Yara Australia Pty Ltd (the Respondent), alleging contraventions of the *Fair Work Act 2009* (Cth) and breach of her employment contract. The Applicant issued a Notice to Produce seeking 24 categories of documents. The Respondent objected to the production of some documents and produced others. The Applicant subsequently filed an Application in a Case seeking either production of the remaining documents sought in the Notice or, alternatively, a declaration under s.45 of the *Federal Circuit Court of Australia Act 1999* (Cth) and discovery of those documents.

The court was required to determine whether the Applicant was entitled to the production of the documents sought in her Notice to Produce, and if not, whether she should be granted a declaration and discovery under s.45 of the *Federal Circuit Court of Australia Act 1999* (Cth). This involved considering the principles governing notices to produce, including the requirement for apparent relevance, the distinction between a notice to produce and discovery, and the potential for a notice to be used for "fishing" or to unduly burden a party. The court also had to assess the relevance of the documents sought to the pleaded issues in the principal proceedings, including allegations of adverse action, discrimination, and breach of contract.

The court applied the principles that a notice to produce requires documents to be sufficiently relevant to justify production, cannot be used as an alternative to discovery, and must seek specified documents rather than broadly defined categories. The court found that while some of the documents sought in the Notice to Produce were relevant and should be produced, others were too broad, lacked sufficient specificity, or were not demonstrably relevant to the issues in dispute. Specifically, the court ordered the production of certain emails and import orders, and letters pertaining to Mr Steven Sullivan's employment finalisation. However, it set aside the remainder of the Notice to Produce and dismissed the alternative application for discovery, finding that the broader requests were either not sufficiently specific or were akin to a fishing expedition, and that the Applicant had not established that discovery was appropriate in the interests of justice under s.45 of the *Federal Circuit Court of Australia Act 1999* (Cth).

The court ordered that, subject to specific categories of documents being produced by the Respondent, the remainder of the Applicant's Notice to Produce dated 1 August 2018 be set aside, and the Applicant's Application in a Case filed on 23 November 2018 be dismissed.