Oliver v Boeing Defence Australia Ltd
[2023] FedCFamC2G 1178
•6 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Oliver v Boeing Defence Australia Ltd [2023] FedCFamC2G 1178
File number(s): SYG 1319 of 2023 Judgment of: JUDGE CAMERON Date of judgment: 6 December 2023 Catchwords: PRACTICE & PROCEDURE – Application for discovery. Legislation: Fair WorkAct 2009 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 176
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 4.03, 4.05, 14.02
Cases cited: Abrahams v Qantas Airways Ltd (No. 2) (2007) 210 FLR 314
Fuji Xerox Australia Pty Ltd v Whittaker (No 2) [2021] FCA 696
Edgar v Norton Rose Services (2022) 368 FLR 1
Division: General Number of paragraphs: 16 Date of hearing: 6 December 2023 Place: Sydney Solicitor for the Applicant: Esser Legal Counsel for the Respondent: Mr L. Meagher Solicitor for the Respondent: Corrs Chambers Westgarth ORDERS
SYG 1319 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: STEVEN OLIVER
Applicant
AND: BOEING DEFENCE AUSTRALIA LTD
Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
6 DECEMBER 2023
THE COURT ORDERS THAT:
1.The applicant’s application in a proceeding filed 29 November 2023 be dismissed.
2.The date for mediation be confirmed.
3.Subject to any contrary order by the Registrar, the applicant’s legal representative may appear at the mediation by videolink.
4.The parties have liberty to apply.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMERON
INTRODUCTION
The applicant, Mr Oliver, alleges that during his employment with the respondent, Boeing Defence Australia Ltd (“Boeing”), he held and exercised a workplace right to question whether he had been correctly classified as a “Group 1” employee which, under Boeing’s COVID-19 protocol, was an employee who was required to be vaccinated with a COVID-19 vaccination. Employees described as “Group 2” employees were not required to be vaccinated. Mr Oliver alleged that during his employment he had claimed that he was not a Group 1 employee and therefore not a person to whom the COVID-19 protocol applied. His solicitor, Mr Esser, has deposed:
The Applicant maintained at all times that he ought to have been classified as a Group 2 employee and thus graded as an employee who did not need to be COVID-vaccinated.
Mr Oliver alleges that in response to his exercise of a workplace right to question whether he was correctly classified as a person who needed to be vaccinated under the COVID-19 requirements, Boeing took various forms of adverse action against him implicitly in contravention of the Fair Work Act 2009 (Cth) (“FW Act”), including dismissing him from his employment.
A Form 2 claim form with points of claim annexed, a response and a reply have been filed by the parties.
On 6 September 2023 the matter was referred to mediation before a registrar of the Court and that mediation is listed to take place in two days’ time, 8 December 2023.
APPLICATION IN A PROCEEDING
On 29 November 2023, Mr Oliver filed an application in a proceeding seeking discovery from Boeing as follows:
1. A declaration under s. 176(2) of the FCFCA [sic] Act of 2021 that discovery is appropriate in this case in the interests of the administrarion [sic] of justice.
2. Pursuant to Rule 14.02(2)(a) an order for disclosure (a) generally or in the alternative, pursuant to Rule 14.02(2)(b) an order for disclosure in relation to particular classes of documents as set out and defined as follows:
3. All reports, correspondence, emails, memoranda, notes, data and documents of any kind in that, during the period from 1 November 2021 to 31 March 2022, record applications or requests on the part of any and all of the Respondent's employees who, during the nominated period, as a Group 1 employee requested or sought reassessment (or reclassification) as a Group 2 employee.
4. All reports, correspondence, emails, memoranda, notes, data and documents of any kind in that, during the period from 1 November 2021 to 31 March 2022, record any and all employees of the Respondent who transitioned from being classified as a Group 1 employee to be re-assessed (or reclassified) as a Group 2 employee.
5. The Respondent's complete Human Rescourse [sic] Dept file dealing with the Applicant including but not limited to correspondence between the Applicant and the Respondent dealing with the Applicant's workplace performance and attempts to be re-calssified [sic] as a Group 2 employee for the period from 1 November to 31 March 2022.
6. Sequential iterations of the Respondent's COVID 19 policies or protocols applicable for the period from 1 November 2021 to 31 March 2022.
7. Sequential iterations of the Respopndent's [sic] COVID 19 risk assessments policies and protocols applicable to the various categories of employees in force during the period 1 January 2021 to 31 March 2022.
8. Sequential iterations of the Respopndent's [sic] COVID 19 risk assessments policies and protocols applicable to the various categories of employees in force during the period 1 January 2021 to 31 March 2022 that resulted in roles being re-classified or changed from a Group 1 category to a Group 2 category.
9. Correspondence including letters and emails etc. (with any necessary redactions) between the Respondent and its employees notifying employees ( includiung [sic] but not limited to employees such as Helmut Christian Daehn‑Alabi) that the employee's role had been re-classied [sic] or changed as in future belonging to a Category 2 role for the period 1 November 2021 to 31 March 2022.
10. Individual COVID 19 Control Plans (ICCP) with any necessary redactions routinely issued to those employees who successfully transitioned to being classified as a Group 2 employee during the period 1 November 2021 to 31 March 2022.
Boeing has given informal discovery and provided to Mr Oliver the correspondence referred to in paragraph 5 of the application in a proceeding, together with documents referred to in paragraphs 6, 7 and 8. It objects to giving discovery as sought in the remainder of paragraph 5 and in paragraphs 3, 4, 9 and 10.
LEGISLATION AND RULES
The Federal Circuit and Family Court of Australia Act 2021 (Cth) (“Act”) relevantly provides:
176 Interrogatories and discovery
(1)Interrogatories and discovery are allowed in relation to family law and child support proceedings in the Federal Circuit and Family Court of Australia (Division 2).
(2)However, interrogatories and discovery are not allowed in relation to any other proceedings in the Federal Circuit and Family Court of Australia (Division 2), unless the Court or a Judge declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.
(3)In deciding whether to make a declaration under subsection (2), the Federal Circuit and Family Court of Australia (Division 2) 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 Court or the Judge considers relevant.
The Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“Rules”) relevantly provides:
14.02 Declaration to allow discovery
(1)A declaration may be made under subsection 176(2) of the Act to allow discovery on the application of a party or on the Court’s own initiative.
(2)If a declaration is made, the Court or a Registrar may make an order for disclosure:
(a) generally; or
(b) in relation to particular classes of documents; or
(c) in relation to particular issues; or
(d) by a specified date.
CONSIDERATION
The matter has come before the Court today for determination of the application in a proceeding. Having heard the arguments of the parties, and having had regard to documents they have filed, I am not persuaded that it is in the interests of the administration of justice to grant discovery in this matter, at least at this point. Without intending any disrespect, I am concerned that the application for discovery of the documents not already discovered informally is misconceived.
Depending on the circumstances of the matter, the interests of the administration of justice can comprehend a variety of considerations, including those recited by Lucev FM in Abrahams v Qantas Airways Ltd (No. 2) (2007) 210 FLR 314 at page 321 [25]. In the circumstances of this case, where it has not progressed to the allocation of a hearing date, the interests of other parties in the litigation queue in this Court are not principal amongst my concerns. However, what is, is whether discovery will advance the case, and will do so on a cost-effective manner.
I have not ignored the fact that a mediation is listed in two days’ time and that there is benefit in keeping to the timetable that has been set, but were discovery to be appropriate I would not consider the postponement of a mediation a matter of great significance weighing against granting discovery. This is particularly as, in correspondence from the registrar to whom the mediation has been allocated, which is annexed to Mr Esser’s affidavit, it is advised that a rescheduled mediation could take place within a matter of months.
General Discovery
Mr Oliver has sought general discovery as a preliminary prayer, but it is difficult to see how general discovery could be effectively, efficiently or fairly undertaken, given the lack of particularity as to the basis of the estoppel alleged in the reply. The reply states, amongst other things:
4. In connection with paragraph 13(b) of the Response, the Applicant says the Respondent is estopped from denying that the Applicant held a workplace right to question if he was correctly classefied [sic] as a person who needed to be vaccinated under the Respondent's COVID protocols, since, at the same time and prior to the Applicant exercising that right, similarly situated employees of the Respondent excercised [sic] the very same workplace right and some of that cohort succeeded in being re-classified as a result of having exercised the subject workplace right.
Before going further, I should note that a reply is not a document which can necessarily be filed as a matter of right in this Court, vide rr 4.03, 4.05 of the Rules, and the registry erred in permitting Mr Oliver’s to be filed. The proper course would have been for Mr Oliver to have filed an application in a proceeding seeking leave to file the reply, at which point its apparent deficiency could have been highlighted, discussed and perhaps addressed.
However, that did not happen and so the allegation of estoppel is one that is rather at large. In addresses today Mr Esser has placed considerable weight on how, he says, Boeing treated other employees who sought to be reclassified. That approach may lead to general discovery also being quite at large, and perhaps uncontrolled given the terms of the reply. For those reasons, I do not consider that general discovery would be appropriate in this matter, even though it has been said that general discovery may avoid the shortcomings and limitations of particular discovery: Fuji Xerox Australia Pty Ltd v Whittaker (No 2) [2021] FCA 696, [10] and [16].
Particular Discovery
Turning to the particular discovery which is sought in the alternative, as I have said, Boeing objects to giving discovery in relation to the human resources file referred to in paragraph 5 of the application in a proceeding and to the categories of documents set out in paragraphs 3, 4, 9 and 10. The request for discovery seems to be based on the idea that how employees other than Mr Oliver were treated will shed light on the question whether there was a workplace right which he was exercising when querying his classification as a “Group 1” employee. I am not persuaded that it could or, to the extent that it might shed some weak light on the question; that the interests of the administration of justice would favour it, given the onerous nature of the inquiry involved according to the evidence of Boeing’s solicitor, Mr Leong.
Further in that regard, whether or not a party is able to make a complaint or an inquiry has been the subject of considerable discussion in the cases. For what it is worth, I draw the parties’ attention to what I said in Edgar v Norton Rose Services (2022) 368 FLR 1 at 201 [738] ff. The issue seems to me to be not whether persons other than Mr Oliver were reclassified, or how they came to be reclassified, but whether Mr Oliver had a legal entitlement or some other right or entitlement of the sort considered in Edgar’s case. The remaining documents of which he seeks discovery do not seem to me to be likely to shed any light on that question.
CONCLUSION
For those reasons, I am not persuaded that it is in the interests of the administration of justice to grant any more discovery than Boeing has already been willing, informally, to provide and so the application in a proceeding will be dismissed.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 11 December 2023
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