Patrick v Wadoon Pty Ltd (No.3)
[2007] FMCA 1836
•30 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PATRICK v WADOON PTY LTD (No.3) | [2007] FMCA 1836 |
| HUMAN RIGHTS – Claim of sexual harassment. PRACTICE AND PROCEDURE – Application for discovery – part of discovery related to underpayment claim in another court – not relevant to issues in amended points of claim – telephone and insurance documents also sought – relevant to issues in amended points of claim – fair and expeditious conduct of proceedings – interests of administration of justice – declaration and orders issued. |
| Federal Magistrates Act 1999 (Cth), ss.3, 14, 42, 45, 45(1), 45(2) and 45(2)(a) Federal Magistrates Court Rules 2001 (Cth), rr.1.03 and 14.02 |
| Genovese v BGC Construction Pty Ltd [2006] FMCA 1507 Patrick v Wadoon Pty Ltd [2007] FMCA 663 Patrick v Wadoon Pty Ltd trading as Rapid Haulage [2007] SAIRC 3 |
| Applicant: | PATRICK |
| Respondent: | WADOON PTY LTD |
| File Number: | ADG 87 of 2006 |
| Judgment of: | Lucev FM |
| Hearing date: | 30 October 2007 |
| Date of Last Submission: | 30 October 2007 |
| Delivered at: | Darwin (by telephone link to Adelaide) |
| Delivered on: | 30 October 2007 |
REPRESENTATION
| Applicant: | Patrick in person |
| Counsel for the Respondent: | Mr G. Carr |
| Solicitors for the Respondent: | EMA Legal |
DECLARATION AND ORDERS
THE COURT DECLARES THAT:
Pursuant to section 45 of the Federal Magistrates Act 1999 (Cth) the Court declares that it is appropriate in the interests of the administration of justice to allow discovery of:
(a)a copy of all telephone bills from all the Respondent’s land line phones, and the mobile telephones used by:
(i)Martin Cooke, No. 0438 300 307;
(ii)Danny Finch, No. 0438 300 308;
(iii)Keith Finch and provided or paid for by the Respondent; and
(iv)Lauren Connelly and provided or paid for by the Respondent; and
(b)copies of insurance claim forms the Applicant was required to fill out whilst employed by the Respondent for accidents of company vehicles,
by the Respondent.
AND THE COURT ORDERS THAT:
The Respondent discover:
(a)a copy of all telephone bills from all the Respondent’s land line phones, and the mobile telephones used by:
(i)Martin Cooke, No. 0438 300 307;
(ii)Danny Finch, No. 0438 300 308;
(iii)Keith Finch and provided or paid for by the Respondent; and
(iv)Lauren Connelly and provided or paid for by the Respondent; and
(b)copies of insurance claim forms the Applicant was required to fill out whilst employed by the Respondent for accidents of company vehicles,
by 4.00 pm on 9 November 2007, discovery to be on oath by an officer of the company.
The Respondent to notify the Applicant by 4.00 pm on 9 November 2007 of the place at which the documents can be inspected on or before 4.00 pm on 16 November 2007.
The originals or best copies of any documents produced be brought to Court and be available for production on each day of the hearing.
Costs reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
ADG 87 of 2006
| PATRICK |
Applicant
And
| WADOON PTY LTD |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Application for discovery
This is an application by the Applicant for interim orders filed on 24 October 2007.
The Applicant has applied for discovery of 13 categories of documents. The application is made very late in the litigation history of this matter. It was made on 24 October 2007 in respect to a matter part heard, and now listed for four days of further hearing, which is effectively however the substantive hearing, from 20 to 23 November 2007 in Adelaide.
Categories of document sought to be discovered
The 13 categories of documents of which discovery is sought are as follows:
1. Suppy a true copy of all telephone bills from all company hard line phones plus mobile phones used by Martin Cooke No. 0438-3300307 mobile phone used by Danny Finch No. 0438-300308 and mobile phone’s used by Keith Finch, and Lauren Connelly.
2. Supply copies of insurance claim forms I, the applicant was required to fill out when he was employed by Rapid for accidents in company vehicles.
3. Supply true copies of Vehicle incident report forms for 2002, 2003 & 2004 this including ones showing accident involving offal spillage and accidents involving collisions involving people and vehicles.
4. Supply copies of Tax returns for Danny Finch for 2002, 2003 and 2004 financial years.
5. Supply true copies supplied to Danny Finch by his super fund indicating payments by Rapid Haulage into his superannuation fund.
6. Supply copies of every pay-slip showing payment of wages to the applicant from date of commencement of employment till final payment after resignation.
7. Supply copies of all clock cards for the duration of the employment of the applicant including for the weeks that pay was with-held.
8. Supply a true copy from security company, contracted to secure the premises and monitor alarms, this showing the read out showing times alarms were turned on and off with the code for which employee did so.
9. Supply true copies of receipts used for re-imbursements to the applicant of cost that were forwarded on to my weekly pay these included taxi fares for trips into work for weekend work and payment of fuel.
10. Supply true copies of doctors certificates supplied by the applicant during the time of employment;
11. Supply a true copy of leave without pay form the respondent was forced to sign prior to resignation;
12. Supply a true copy of all defect notices issued to all company trucks during the 28 months of employment of the respondent.
13. Supply true copies of fines issued by the police and or the court that the Respondent paid for regarding depositing material on the road and insecure loads.
Basis for discovery sought
The basis for the discovery of the above categories of documents is set out in Patrick’s affidavit sworn on 24 October 2007 and in oral submissions to the Court today.
The claim in this matter, as amended pursuant to orders of this Court on 1 May 2007, is set out in the amended points of claim filed on 30 May 2007. The amended points of claim relate solely to specified instances of alleged sexual harassment as set out in those amended points of claim document and seek remedies in relation to compensation and apology.
Respondent’s opposition to discovery
The application for discovery is opposed by the Respondent in its totality.
The Respondent says that discovery, this late in the proceedings is unfair, and further, particularly in relation to categories 4 to 11, the discovery sought relates to a claim of underpayment which has been determined by Industrial Magistrate Ardlie in the Industrial Relations Court of South Australia in Patrick v Wadoon Pty Ltd trading as Rapid Haulage[1] and in relation to which Patrick has already filed an appeal listed for directions before a single judge of the Industrial Court of South Australia in February 2008.
[1] [2007] SAIRC 3.
The Respondent also opposes the order for discovery by saying that if discovery is granted in these terms, that discovery is in a much wider form and in relation to a much wider set of documents than are disclosed by the issues adverted to in the amended points of claim.
Consideration – categories 3 to 13
The Court, having considered the matter, takes the view that in relation to categories 3 to 13 that those claims relate to issues which are not the subject of the amended points of claim presently before this court. The documents sought in categories 3 to 13 simply do not relate to the issues in these proceedings as disclosed by the amended points of claim. Therefore, there is no basis on which to even commence a consideration of whether discovery of those documents ought to be ordered. It is, therefore, unnecessary to consider the issues of estoppel that might arise, interesting as they might be, in relation to categories 4 to 11. There will, therefore, be no order of discovery in respect of categories 3 to 13. The parties, in particular the Applicant, need to appreciate that the claim that is before the Court is as disclosed or contained in the amended points of claim filed on 30 May 2007. If there are other claims they are not presently before this Court.
Consideration – categories 1 and 2
The Court considers that category 1 of the documents sought to be discovered is plainly relevant to the central claims of harassment made by the Applicant, namely, that the Applicant was the subject of harassing telephone calls. The particulars of those telephone calls are set out at paragraph 5.1.4 of the amended points of claim. One needs only to read those particulars to see that a claim for discovery of telephone records which might disclose the time at which calls were made, the phones to which they were made and the types of calls that were made is relevant. Whether they were – and in particular whether they were message type calls is plainly relevant to the claim that has been made.
In relation to category 2 it is not quite as clear but it does appear that the Applicant seeks documents which are copies of insurance claims that he was required to fill out whilst employed by the Respondent and that they may give rise to some issue in relation to potential sexual harassment. It is not immediately clear to the Court how that might arise, but a particular line of inquiry in relation to an issue of sexual harassment might not necessarily ordinarily be immediately apparent to the Court at this stage of the proceedings. It might be the case that the documents that are sought disclose the Respondent’s insurance claims with respect to various claims that have been made by Patrick in relation to the sexual harassment the subject of the amended points of claim. If that is the nature of what it sought in category 2, then those documents are discoverable because they would assist with a particular line of inquiry. The Court considers that on ordinary principles the documents in categories 1 and 2 would be discoverable.
Discretion and the timing of the application
The Court has considered whether or not it ought to exercise discretion to refuse to make an order because of the timing of the application for discovery. It is true to say with respect to the telephone records in particular that that is an application which might have been made earlier, but it is equally true to say that it is a matter which the Respondent would effectively have been on notice of for some time, that the question of the telephone records was in issue. Given that there is still something in the order of three weeks prior to hearing, the Court does not consider in the context of the streamlined and informal procedures and practices of the Federal Magistrates Court as disclosed by the Federal Magistrates Act 1999 (Cth)[2] and Federal Magistrates Court Rules 2001 (Cth)[3] that the question of discovery comes too late in the day. In that regard the Court is also influenced by the fact that the discovery which is potentially to be ordered by the Court in respect of categories 1 and 2 is much narrower than that which was sought by the Applicant and objected to by the Respondent.
[2] “FM Act”; FM Act, ss.3, 14 and 42.
[3] “FMC Rules”; FMC Rules, r.1.03.
Interests of the administration of justice
The Court, however, before it can make an order for discovery, must be satisfied under s.45(1) of the FM Act that it is appropriate in the interests of the administration of justice to allow discovery and make a declaration to that effect. Under s.45(2) of the FM Act, in making a declaration to that effect the Court must have regard to:
a)whether allowing discovery would be likely to contribute to fair and expeditious conduct of the proceedings; and
b)such other matters, if any, as the Court considers relevant.
Rule 14.02 of the FMC Rules provides for a declaration to allow discovery to be made on the application of a party, or on the Court’s own motion, and also allows for the Court to make an order for disclosure generally or in relation to a particular class of documents or a particular issue or by a specified date.
The provisions of s.45(2)(a) of the FM Act relating to fair and expeditious conduct of the proceedings fortify the view that the Court had otherwise reached in relation to categories 3 to 13, that is, that discovery of those matters or those documents which relate to matters beyond the ambit of the points of claim would not provide for the fair and expeditious conduct of the proceedings. Indeed, to grant discovery of those categories of documents at this stage would, the Court has no doubt, result in a further application for adjournment, probably from the Respondent on much the same basis as occurred on 1 May this year when the Applicant introduced a “fundamentally new issue” in an outline of submissions filed the day before the matter was listed to commence a four-day hearing.[4]
[4] Patrick v Wadoon Pty Ltd [2007] FMCA 663 at para. 1 per Lucev FM.
In relation to categories 1 and 2 the Court has already indicated that it considers that categories 1 and 2 relate to or could relate to the claimed instances of sexual harassment in relation to the phone calls made, any notification to an insurer of claims made and the reasons for those claims.
The Court considers that it is necessary for the fair and expeditious conduct of the proceedings to allow discovery of those two categories of documents, and in particular in relation to the telephone documents, as they might indicate when, where and what type of calls were made. No doubt those records still exist, there being an obligation to maintain them consistent with the requirement to maintain records for business purposes for the purposes of various taxation legislation.
The Court, having regard to the fact that the discovery of documents in categories 1 and 2 might assist in the determination of the claim, is relevant to the claims and would assist in the fair and expeditious conduct of the proceedings, is therefore of the view that it is in the interests of the administration of justice that records in categories 1 and 2 be produced.[5]
[5] As to the meaning of the interests of the administration of justice, see Genovese v BGC Construction Pty Ltd [2006] FMCA 1507 at paras. 24-28 per Lucev FM.
Declaration and orders to be made
The Court therefore makes a declaration pursuant to s.45(1) of there FM Act that it is in the interests of justice that there be discovery of:
a)a copy of all telephone bills for all company hardline phones plus mobile phones used by Martin Cooke, number 0438 300 307 and mobile phone used by Danny Finch number 0438 300 308 and mobile phones provided to or paid for by the Respondent and used by Keith Finch and Lauren Connelly for the period of the applicant’s employment; and
b)copies of insurance claim forms the applicant was required to fill out whilst employed by the respondent in relation to accidents in company vehicles,
by the Respondent.
There will be an order that the Respondent discover those categories of documents 1 and 2 just indicated by 4.00 pm on 9 November 2007 and that discovery be on oath by an officer of the Respondent and that the Respondent notify the Applicant by the same time, that is, 4.00 pm on 9 November 2007, of a place at which the documents can be inspected on or before 4.00 pm on 16 November 2007. There will also be an order that the originals or best copies of the documents produced be brought to Court and be available for production on each day of the hearing. There will be a further order that the costs of today be reserved.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: J. Semler
Date: 6 November 2007
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