Mr David Weule v Central Queensland Services Pty Ltd
[2025] FWC 120
•14 JANUARY 2025
| [2025] FWC 120 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr David Weule
v
Central Queensland Services Pty Ltd
(U2024/11923)
| DEPUTY PRESIDENT BUTLER | BRISBANE, 14 JANUARY 2025 |
Application for an unfair dismissal remedy – application for order to produce documents
Mr David Weule, the applicant in these proceedings, has applied for an order to produce documents. I have decided to make an order but not in the terms of Mr Weule’s draft.
Background
Central Queensland Services Pty Ltd dismissed Mr Weule from his employment on 20 September 2024. Mr Weule has applied for an unfair dismissal remedy. In the course of the unfair dismissal proceedings, Mr Weule seeks an order that Central Queensland Services Pty Ltd produce the following seven categories of documents:
(a) A copy of all documents provided to the Respondent, employees of the Respondent, or an investigator for the purposes of the investigation of the altercation between David Torcello and David Weule on 13 June 2024 (the Investigation). (Category 1)
(b) A copy of all file notes, recordings and transcripts of interviews of witnesses or other persons as part of the Investigation. (Category 2)
(c) A copy of any complaint(s) that instigated the Investigation. (Category 3)
(d) A copy of all documents, including emails and file notes, created by or sent to the Respondent, employees of the Respondent or the Investigator discussing the outcome of the Investigation. (Category 4)
(e) A copy of the final report of the Investigation. (Category 5)
(f) Any documents related to or discussing disciplinary action taken against David Torcello in relation to the altercation on 13 June 2024. (Category 6)
(g) A copy of any letter of resignation or other correspondence given to the Respondent by David Torcello mentioning David Weule. (Category 7).
I issued Directions on 11 December 2024, in anticipation of deciding this application. Those directions allowed the parties to file and serve submissions and affidavits, if any. I directed that the application would be determined on the papers unless any party advised of an objection to that course of action by 27 December 2024. Mr Weule’s representative indicated Mr Weule was content for the application to be decided on the papers, and Central Queensland Services Pty Ltd did not advise of any objection.
Applicable principles and legislative framework
Section 590 of the Fair Work Act 2009 gives the Commission the power to inform itself in such manner as it considers appropriate. That section sets out a non-exhaustive list of ways the Commission can inform itself. The list includes requiring a person to provide copies of documents, records, or other information, to the Commission. Rule 26 of the Fair Work Commission Rules 2024 deals with orders to produce.
The power is discretionary. An order to produce in this Commission is analogous to a subpoena or summons to produce documents in the courts. In exercising its discretion, the Commission considers the approach that the courts take to dealing with subpoenas and summons.[1] The courts’ principles are a source of guidance; they are not jurisdictional prerequisites.[2]
The Commission takes guidance from the courts but does so in the context of its own practice and procedure. Significantly, inter-party discovery is generally available in civil proceedings in courts, whether by right[3] or by order[4] or direction,[5] and subpoenas and summonses for documents are mainly, but not exclusively,[6] used to obtain documents from people not involved in the proceedings. In contrast, inter-party discovery as a matter of course is not the practice in this Commission.[7] This difference needs to be borne in mind when taking guidance from court authorities.[8]
Another area of procedural difference is the point at which the summons is issued or the order made. In some courts and tribunals it is common for the Registrar (or delegate) to issue the summons at the request of a party. The request itself is not necessarily provided to the other party or the addressee. In some jurisdictions, the court’s leave is required for some subpoenas but not others, and there can be different rules for self-represented litigants than for lawyers.[9] In this Commission, to obtain an order to produce, a party files an application, with a draft order attached. The application itself, including the draft order, must be served on the proposed addressee and the other party or parties,[10] so this happens before any order is issued. The application is generally determined by a Member of the Commission, often without first hearing from the parties.[11] However, because the application itself must be served, there may be a request to be heard before the order is made. That has happened in these proceedings.
Generally, once a subpoena or summons has been issued it must be served on the addressee and the other party or parties. That is also the case in this Commission. Once an order to produce has been made, it must be provided to the addressee and the other party or parties.[12]
Procedure
Once the order has been made, there are three stages of dealing with the documents to which the subpoena, summons, or order applies:[13]
1.after the order has been made and served but before any documents have been produced under it;
2.after any documents have been produced to the court or tribunal;
3.in the course of the substantive proceedings.
During the first stage, after the order has been made and served, the addressee (or a party) can seek to have the order set aside, or can raise any objections to production. After those issues are resolved, and if the order has not been set aside, the person produces any documents covered by the order (with any variations made in deciding any objections) to the Commission. In the Commission’s current practice, copies are often produced by email.
The next stage involves the preliminary decision about the use of the documents. The addressee, having produced the documents, can object to the parties being able to inspect (view) or receive copies of them.[14] If the addressee does not state that they want to object it is likely that the Commission would allow the parties to receive copies shortly after the documents have been produced. During this stage any objections to inspection and copying can be determined. If the judge (or tribunal member) hearing the application for inspection may also be the trial judge, complications may arise if these objections are determined by that judge (or member) examining the document.[15] In courts or tribunals - including this Commission - where a docket system is used, that is, where the same judge or member handles the case from start to finish (excluding appeals), it would no doubt be prudent for a party to raise any issues in this regard to do so at an early time. However, this is only a potential issue, turning on the circumstances, and there are matters where the same judge or member examines the documents for the purposes of determining the objection at this early stage.[16]
After production and inspection, the last stage is dealing with the documents in the course of the substantive proceedings. The act of complying with an order by producing documents to the Commission does not of itself result in the documents forming part of the evidence in the proceedings.[17] For a Member to take them into account for the purposes of deciding the case, any documents will still need to be put into evidence in the usual way.
Dealing with opposition to the order and/or objections to production together
As I have stated above, the Commission’s procedure involves serving both the application for an order (along with the draft), and the order itself, if made. The result is that an addressee or party may take the opportunity to oppose the order being made in the first place, rather than seeking that it be set aside after it has been made, as has occurred in this case.
An addressee may also have objections to producing documents in compliance with the order. The grounds for opposing the order and objecting to production under it can overlap. The Commission can infer that by opposing the Commission making the order, the person also objects to producing documents under it, if it is made.[18] This may be a convenient and efficient way to deal with the related issues.
Principles guiding the exercise of the discretion
As I have stated above the Commission derives guidance from the courts’ approach to subpoenas and summonses, with necessary adaptation.
When a party applies for an order to produce, then generally speaking the Commission will exercise its discretion in favour of the party applying, unless it appears that it would be vexatious or frivolous or otherwise an abuse of process to make the order.[19] The order must be for a legitimate forensic purpose, generally because of the apparent relevance of the documents sought.[20]
In exercising this discretion the Commission decides whether to grant the order and if so on what terms.[21] Matters that will guide the exercise of the discretion to require production include, among other things, relevance, whether the documents have been described with particularity (in enough detail), whether the burden on the addressee is reasonable, whether the person wanting the order is ‘fishing’, and the proper administration of justice. [22]
The New South Wales Supreme Court has observed that traditionally, subpoenas to parties have been treated somewhat more liberally than subpoenas to strangers.[23]
Parties’ submissions
Mr Weule argued the documents sought have apparent relevance to the issues in the proceedings, relying on CEPU v Fredon Industries.[24] He cites Deputy President Beaumont’s summary, in CEPU v South32 Ltd,[25] of the considerations guiding the exercise of the discretion. He argues the order, if made in the terms of the draft, would not impose an unreasonable burden on the Respondent.
Central Queensland Services Pty Ltd argued that Mr Weule has not established apparent relevance. It says the application was made prematurely. It argues that it would have to undertake compliance with the order, if made, at the same time as preparing its witness statements and submissions, and requiring it to do both at the same time would be unreasonable. It argues the application is an abuse of process because it is a fishing expedition. Mr Weule’s reply submissions seek to refute these arguments.
The parties’ submissions canvassed some factual matters including the extent to which there had been attempts to secure voluntary disclosure prior to the application being made, and where orders in “almost identical” terms had been made in respect of other companies in the same corporate group as the Respondent. No affidavits were filed alongside the submissions. Mr Weule’s representative provided copies of orders made in two other matters. Even if affidavits had been filed, I would not have found these issues determinative or sufficiently persuasive to lead to different conclusions to those I have reached for the reasons below.
Consideration
I will consider the principles I have referred to above, in light of the parties’ submissions.
Apparent relevance
The Respondent submits the Applicant has not demonstrated the documents sought have apparent relevance to the issues in dispute in these proceedings.
In unfair dismissal matters in this Commission parties are not generally put to the task of filing pleadings or documents akin to pleading such as statements of facts and contentions. However, the initiating application form invites the applicant to provide a significant amount of detail about the basis for their application, and the Employer Response form invites a similar amount of detail. That means the parties are often aware of the issues in dispute at an early stage.
In this case the parties are represented, Mr Weule by his union and Central Queensland Services Pty Ltd by lawyers. The representatives are experienced and familiar with this jurisdiction. The application and the response are clear and concise. The parties would be aware from those initiating documents that the issues in dispute include whether there was a valid reason for Mr Weule’s dismissal, in connection with the events of 13 June 2024.
In reply submissions Mr Weule’s representative points out that Mr Weule’s materials in relation to the substantive application have now been filed, on 20 December 2024. The outline submissions and statement of Mr Weule filed in this matter will have further assisted the Respondent to appreciate the issues in dispute.
Reasonable particularity
In submitting that the application is a “fishing expedition,” the Respondent also takes issue with the level of particularity of the categories and argues their breadth renders this application frivolous and an abuse of process.
Where the addressee is a stranger to the litigation, the requirement to specify with reasonable particularity is necessary so they do not have to ransack their records and try to form judgement about whether any of their papers throw light on a dispute they do not know about.[26] Where the addressee is a party, this is because people are not to use a subpoena as a way to get around the usual procedures relating to discovery.[27] Adapting that reasoning for this Commission, the documents should be described with particularity because parties should not try to use these orders as a way of going around the usual practice, in an attempt to get general discovery.
The relevant question is whether the draft order or order specifies with reasonable particularity documents which are required to be produced. It may be enough to identify documents to be produced by reference to the subject matter to which they relate.[28]
Timing
The Respondent takes issues with the timing of the application. It argues the circumstances in this application are analogous to those in Roos v Winnaa Pty Ltd[2017] FWC 3737 (‘Roos v Winnaa’). The Applicant seeks to distinguish Roos v Winnaa and in any event points out as his materials have now been filed.
In Roos v Winnaa the Commission was dealing with a consent arbitration in relation to a general protections matter involving dismissal. Consent arbitrations of general protections matters are rare. In that case, it had been conceded that the Applicant had the relevant attribute under section 351 of the Fair Work Act. The identity of the decision-maker and the reason(s) for the decision were in issue. There is a reverse onus in relation to the reason(s) for the decision.[29] The Commission considered the better course was to wait for the materials to be exchanged.
In contrast, the substantive application in this matter is for an unfair dismissal remedy. Unfair dismissal matters make up a substantial proportion of the matters before the Commission. In light of the Commission’s obligation to deal with matters quickly, informally, and without unnecessary technicality,[30] such matters are often heard within a few months of being commenced. This means that there is usually only a short period of time between the parties’ witness statements and outlines of submissions being filed, and the hearing date. Dealing with objections to production, and objections to inspection if any, takes time. In unfair dismissal matters, earlier applications for orders to produce may be more conducive to the orderly and fair yet quick and informal conduct of proceedings.
Unreasonableness
The Respondent submits that granting the application would impose an unnecessary and excessive burden on it. The submission is based on the Respondent having to comply with the order and prepare witness statements and an outline of submissions at the same time.
I am not persuaded that it is unreasonable to require any party to comply with an order for production and prepare witness statements and an outline of submissions at the same time, let alone a Respondent of some substance that is represented by experienced and well-regarded lawyers.
I accept that the period for the Respondent to prepare its witness statements and an outline of submissions fell over the Christmas period. As Mr Weule’s representative points out I dealt with this by providing a period of more than three weeks – longer than is often given. No party has sought a variation of my Directions of 2 December 2024, which set out the timetable for filing and serving material, among other things.
Whether a “fishing expedition”
An order to produce is not to be used “for the purpose of exploring whether there is a supportable basis for a case that might potentially be advanced.” [31] This is what is referred to as a “fishing expedition.”[32]
In Barber v Commonwealth of Australia[33] the Commission cited the following, from the judgement of Collier J in Tamawood Limited v Habitare Developments Pty Ltd:[34]
“the documents must be relevant to an issue raised on the pleadings and be used to elicit documents to support the applicant’s existing case. It 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.”
In arguing that this application is a fishing expedition, the Respondents submitted:
32. The Application is not a clear and targeted request for documents that are known to be pertinent to the issues in the Substantive Application. The categories of documents requested in the Application are overly broad and not specified with reasonable particularity. The Application is therefore simply a fishing expedition, such that it is frivolous and an abuse of process.
33. Further, the process agitated for the Application risks unnecessarily adding to the volume of material filed in the matter.
(footnote omitted)
In support of the first of those paragraphs the Respondent relied upon Re Marks; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1981) 147 CLR 471, 483 and D.A. v Baptist Care SA[2019] FWC 7358 at [36]. The latter cites the former, stating the power to compel production is a discretionary power which will generally be exercised “in favour of the applicant unless it appears that it would be vexatious or frivolous or otherwise an abuse of process to issue the summons.”[35] I have referred to this principle above.
Whether redundant
The Respondent also argues the application is redundant because it anticipates including relevant documents in its witness statements (presumably by annexure). In my view this can be dealt with by including in the order an explicit provision that documents already provided need not be produced.
Application to documents being sought
I will now consider each of the categories of documents requested.
Category 1
I accept this request is very broad. If the Applicant can identify with greater particularity specific documents or categories of documents falling within this category it can make a further application.
Categories 2 and 3
Insofar as they relate to witnesses, these documents are apparently relevant to issues in dispute, including whether there was a valid reason for termination and whether the dismissal was harsh, unjust or unreasonable. The documents are described with reasonable particularity. I am not persuaded that the issues raised weigh against the discretion being exercised. These categories should be included in the order.
Category 4
The Employer Response asserts Mr Weule was provided with an opportunity to respond to reasons why termination was under consideration.[36] The Applicant has argued that the Respondent failed to give him a proper opportunity to respond by failing to genuinely consider his show cause response, or what else he could have done.[37] Some documents in this category are apparently relevant to this issue. But the request is too broad. Among other things it would capture all documents created by employees of the Respondent discussing the outcome of the investigation. Such documents if created or stored on work computers or phones may be in the Respondent’s possession, power or control but it would be oppressive to require the Respondent to undertake the searches necessary to find such documents. Again, if the Applicant can identify with greater particularity specific documents or categories of documents falling within this category it can make a further application.
Category 5
Mr Weule seeks a copy of the final report of the workplace investigation. This document has apparent relevance. It has been described with reasonable particularity. The opinions, findings, or conclusions of an investigator may not assist me in making findings about what happened on 13 June 2024, whether the events of that day constituted a valid reason for dismissal, or any other issue in dispute. However, I am here dealing with production, not whether the document would be admissible. I am not persuaded that the issues raised weigh against the discretion being exercised. The report should be produced.
Category 6
These documents are apparently relevant to issues in dispute, including whether there was a valid reason for termination and whether the dismissal was harsh, unjust or unreasonable. However, the request is too broad. I will narrow the description of this category, so that the Respondent by its Proper Officer is to provide any letters from the Respondent to Mr Torcello inviting him to show cause why he should not be disciplined, and any letters from the Respondent to Mr Torcello notifying him of any decision to take disciplinary action against him, in relation to the altercation on 13 June 2024.
Category 7
These documents are apparently relevant to issues in dispute, including whether there was a valid reason for termination and whether the dismissal was harsh, unjust or unreasonable. The documents are described with reasonable particularity. I am not persuaded that the issues raised weigh against the discretion being exercised. This category should be included in the order.
Conclusion
For the reasons set out above, I have made an order but not in the terms of the draft. The order is to be issued separately.
DEPUTY PRESIDENT
[1] APESMA v Great Southern Energy[2024] FWCFB 106, [24]; Esso Australia Pty Ltd v AWU and Ors[2017] FWCFB 2200 at [6].
[2] APESMA v Great Southern Energy[2024] FWCFB 106, [26].
[3] See for example Uniform Civil Procedure Rules 1999 (Qld) ch 7.
[4] See for example Federal Court Rules 2011 (Cth) ch 2 pt 20.
[5] See for example Industrial Relations Act 2016 (Qld) s 536(f).
[6] See Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 573 and see generally various jurisdictions’ civil procedure rules.
[7] The Commission’s general powers to make decisions as to procedure may allow it to make directions akin to inter-party discovery: see s 589 Fair Work Act 2009, noting that such directions would not go to the Commission informing itself under s 590, but to the parties providing documents to each other; see also Re Clerks’ (Alcoa of Australia) Consolidated Award [1988] AIRC 391 (Munro J), 3, in which His Honour noted there are, in Commission proceedings, no formal mechanisms for discovery, and went on to say “I consider that an absence of effort by a party to seek directions akin to discovery at an appropriate stage of proceedings may be a reason for not exercising the discretion to issue a summons.” See also CFMEU and A Aarons Waterbed Centre and others [1996] AIRC 1751 (Watson DP), and Kellogg Brown and Root Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union[2004] AIRC 264 ((Whelan C), [23]. However, bearing in mind the obligation under s 577 of the Fair Work Act to conduct matters quickly, informally, and without unnecessary technicalities, the Commission would be unlikely to adopt a general practice of making directions akin to general discovery (see also Tikitau v Murrays Charter Coaches & Travel Service Pty Ltd [1998] AIRC 437, 20). It may be there is not much practical difference between making a direction for specific discovery and making an order to produce documents as far as the parties are concerned, though the procedures are slightly different, and there may be more severe consequences for contravention of the latter given it is described as an “order,” and having regard to ss 675 and 677 of the Fair Work Act.
[8] Australian Nursing Federation v Victorian Hospitals' Industrial Association[2011] FWA 8756, [13].
[9] See Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021 r 6.27.
[10] Fair Work Commission Rules 2024 r 21 and sch1. See also Fair Work Commission Practice note: Orders to attend & orders to produce, [33].
[11] United Firefighters’ Union of Australia v Country Fire Authority[2016] FWC 2485, [6].
[12] Fair Work Commission Rules 2024 r 26(4).
[13] National Employers’ Mutual General Insurance Association Ltd v Waind and Hill (1978) 1 NSWLR 372.
[14] Commissioner for Railways v Small (1938) 38 SR (NSW) 564, 574.
[15] See Commissioner of Railways v Small (1938) 38 SR(NSW) 564 in which the Jordan CJ stated the judge could make such examination of the documents” as he thinks proper” (Jordan CJ, 573-4); Grant v Downs [1976] HCA 63; 135 CLR 674 in which Barwick CJ referred to this complexity (Barwick CJ, [3]); Topine v Canterbury Bankstown Bulldogs Rugby League Club Limited [2024] NSWSC 1462, [59] (Davies J).
[16] see Stephen v Seahill Enterprises Pty Ltd [2022] FCAFC 85 (Logan J, Anderson and Downes JJ concurring), [21]-[22] citing AWB Ltd v Cole [2006] FCA 571; (2006) 152 FCR 382 (Young J), [116], which cited Grant v Downs [1976] HCA 63; 135 CLR 674 (Stephen, Mason and Murphy JJ), 689.
[17] Esso Australia Resources v Commissioner of Taxation [1999] HCA 67; 201 CLR 49 (at [150]) per Callinan J).
[18] Re Clerks (Alcoa Australia) Award [1988] AIRC 391 (Munro J).
[19] R v Marks; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1981) 147 CLR 471; (1981) 35 ALR 241; (1981) 55 ALJR 516; [1981] HCA 33 (Mason J, 147 CLR 471 at 473); CEPU v South32[2021] FWC 3043 (Beaumont DP), [44]; D.A. v Baptist Care SA[2019] FWC 7358 at [36].
[20] Atlanta Building Pty Ltd v Abela [2024] NSWSC 1193 (McGrath J), [70], citing Azzi v Volvo [2006] NSWSC 283, Brereton J, [4]; CEPU v Fredon Industries[2021] FWCFB 128 (Hatcher VP, Gostencnik, DP, and Mansini DP), [19]; Portal Software v Bodsworth [2005] NSWSC 1115, [28]-[29]; SPI Electricity Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2012] FWA 4350 (Bissett C) applying Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Emergency Transport Technology Pty Ltd [2011] FCA 181, [13] (Cowdroy J) which applied Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306; 88 ALR 90 at ALR 103 (Beaumont J).
[21] APESMA v Great Southern Energy[2024] FWCFB 106, [24], citing Esso v AMWU and Ors[2017] FWCFB 2200, [6].
[22] Ibid.
[23] Portal Software v Bodsworth [2005] NSWSC 1115 (Brereton J), [26].
[24] [2021] FWCFB 128 (Hatcher VP, Gostencnik, DP, and Mansini DP), [19].
[25] [2021] FWC 3043, [44].
[26] Commissioner for Railways v Small (1938) 38 SR (NSW) 564, 573.
[27] Ibid, 574.
[28] Anthony Gilbert Hicks v Woolworths Group Limited and Woolworths (South Australia) Pty Limited T/A Woolworths Supermarkets[2024] FWC 591; CEPU v South32[2021] FWC 3043 (Beaumont DP), [44]; Re Clerks (Alcoa Australia) Award [1988] AIRC 391 (Munro J).
[29] Fair Work Act 2009 s 361.
[30] Fair Work Act 2009 s 577(1)(b).
[31] APESMA v Great Southern Energy[2024] FWCFB 106 (Hampton DP, Wright DP, Matheson C), [25], citing Kirkman v DP World Melbourne Ltd[2015] FWCFB 3995, [19], and Woodside Energy Ltd v Australian Worker’s Union[2022] FWCFB 168, [29].
[32] Ibid.
[33] [2009] AIRC 926 (Thatcher C), [32].
[34] [2009] FCA 364 (Collier J), [12], summarising principles discussed in McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233 (Greenwood J).
[35] D.A. v Baptist Care SA[2019] FWC 7358 at [36].
[36] Employer Response dated 7 November 2024, 9.
[37] Applicant’s outline of submissions filed 20 December 2024, [50]-[51].
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