Ponte v Greater National Holdings Pty Ltd
[2023] FedCFamC2G 1044
•16 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ponte v Greater National Holdings Pty Ltd [2023] FedCFamC2G 1044
File number(s): MLG 1756 of 2022 Judgment of: JUDGE SYMONS Date of judgment: 16 November 2023 Catchwords: PRACTICE AND PROCEDURE – application for discovery of documents – whether discovery appropriate in the interests of the administration of justice – whether allowing discovery would be likely to contribute to the fair and expeditious conduct of the proceedings – relevant factors – where documents sought to be discovered are voluminous – where discovery would not contribute to any narrowing of the issues – where available evidence suggests that the documents will not disclose relevant detail – application dismissed Legislation: Fair Work Act 2009 (Cth) ss 340, 361
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss. 5, 176, 190.
Cases cited: Abrahams v Qantas Airways Ltd (No 2) (2007) 210 FLR 314; [2007] FMCA 639.
Board of Bendigo Regional Institute of Technical and Further Education v Barclay 248 CLR 500; [2012] HCA 32.
Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17
Serpanos v Commonwealth of Australia [2022] FCA 1226
Vinden v Wrong Fuel Rescue Pty Ltd [2019] FCCA 1091.
Division: Division 2 General Federal Law Number of paragraphs: 43 Date of last submission/s: 9 November 2023 Date of hearing: 9 November 2023 Place: Melbourne Counsel for the Applicant: Mr B Holding Solicitor for the Applicant: Angela Sdrinis Legal Counsel for the Respondent: Ms C Pace Solicitor for the Respondent: Lander & Rogers ORDERS
MLG 1756 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ANGELINA PONTE
Applicant
AND: GREATER NATIONAL HOLDINGS PTY LTD
Respondent
AND: GREATER NATIONAL LIMITED
Interested Person
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
16 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application in a proceeding filed by the applicant on 18 October 2023 be dismissed with costs, if any, reserved.
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 SYMONS:
APPLICATION IN A PROCEEDING
Before the Court is an Application in a Proceeding (Discovery Application) filed by the applicant, Ms Angelina Ponte (Ms Ponte) on 18 October 2023 and accepted for filing on 25 October 2023, seeking orders for discovery of documents as follows:
1.Invoices issued to Greater National Limited’s clients by the Applicant and any other employee of the Respondent limited to the period 1 July 2020 to the present date.
2.The licence agreement as outlined in the Affidavit of Gino De Biase sworn on 18 October 2023.
The Discovery Application was heard on 9 November 2023. At hearing (and reflected also in Ms Ponte’s written submissions) it was clarified that Ms Ponte no longer pressed for the discovery of the document identified in category 2 and that the date range for documents identified in category 1 was limited to the period 1 July 2020 to 17 March 2022. It follows that this judgment considers the Discovery Application on this more confined basis.
The Discovery Application is made in the context of a proceeding that concerns the central allegation by Ms Ponte that the respondent, Greater National Holdings, or GNH, summarily dismissed her from employment on 17 March 2022 for the reason, or for reasons that included, her exercise of variously identified workplace rights in breach of s 340(1)(a) of the Fair Work Act 2009 (Cth) (FW Act).
GNH admits that it dismissed Ms Ponte from employment on this date but denies that it was for a proscribed reason. Instead GNH says that it made the decision to terminate Ms Ponte’s employment because, following an internal investigation, it was determined that she had engaged in serious misconduct, related primarily to the unauthorised removal or reduction of broker fees and/or commission for sales of personal insurance products to family members.
It is common ground that GNH is related to Greater National Limited, this being the company identified in the proposed order for discovery of category 1 documents. GNH supplies administrative services to Greater National Limited, including equipment and staff.
LITIGATION HISTORY
The Originating Application and Form 2 were filed by Ms Ponte on 27 July 2022. On 4 October 2022 Ms Ponte filed a statement of claim and on 2 November 2022 GNH filed a defence.
On 12 December 2022 a Registrar of the Court made orders by consent that provided for the following events to occur at intervals fixed by reference to the (at that time unknown) date of the final hearing:
(a)By Ms Ponte - the filing of any evidence to be relied on at trial, including affidavits of any witnesses, a list of documents to be produced and relied on at trial, written submissions and a list of authorities 24 weeks before the final hearing;
(b)By GNH – the filing of any evidence to be relied on at trial, including affidavits of any witnesses, a list of documents to be produced and relied on at trial, written submissions and a list of authorities 18 weeks before the final hearing;
(c)Any application for discovery to be filed and served by a date no later than 16 weeks before the final hearing;
(d)The proceeding be listed for a case management hearing on a date not before 10 weeks before the final hearing to determine any application for discovery and to make further directions for the preparation of the matter for hearing.
On 23 December 2022 the proceeding was allocated a final hearing date of 31 January and 1 February 2024.
On 8 May 2023 Ms Ponte filed a subpoena to produce documents addressed to the Proper Officer Greater National Pty Ltd, requiring that by 6 June 2023 the following documents be produced to the Melbourne Registry of the Court:
(1)A copy of this subpoena.
(2)All Invoices, Renewal Invoices and New Business Invoices issued by Greater National Pty Ltd to any persons or corporations for payment of insurance premiums for policies of insurance placed by Greater National Pty Ltd for or on behalf of any persons and corporations in the period commencing on 1 July 2019 and ending on 30 March 2023 inclusive.
On 11 May 2023 Ms Ponte filed a second subpoena to produce documents that appeared to be in identical terms to the first.
On 6 June 2023 GNH filed notices objecting to the production of the documents identified in the subpoenas. GNH put in issue the relevance of the subpoenaed documents and claimed also that the scope of the subpoena was too wide and therefore oppressive.
Both parties filed affidavits in support of their respective positions concerning the subpoenas and the objections hearing was listed to 28 June 2023. On that date, a Registrar of the Court made orders vacating the objections hearing and setting aside the subpoena to produce dated 12 May 2023.
On 16 August 2023 Ms Ponte filed a list of documents to be relied upon at trial, written submissions and an affidavit affirmed on the same date.
On 25 September 2023 I made orders by consent that varied the procedural timetable established by the 12 December 2022 orders to the extent that GNH was required to file and serve any evidence to be relied on at trial, including affidavits of any witnesses and a list of documents it intends to tender in evidence by 4 October 2023.
Consistent with these orders, on 4 October 2023 GNH filed a list of documents and an affidavit of Robert Sinclair, director of the respondent (and also of Greater National Limited), affirmed on 3 October 2023.
SUBMISSIONS AND MATERIAL
In support of the Discovery Application Ms Ponte relies upon an affidavit of lawyer Gino De Biase dated 18 October 2023. In support of its opposition to the Discovery Application, GNH relies upon an affidavit of Mr Sinclair filed on 8 November 2023.
Ms Ponte
In her written submissions filed on 8 November 2023 Ms Ponte submits that discovery is appropriate for the following reasons:
(a)She is not seeking orders for general discovery but instead a “confined category of documents”;
(b)The invoices will be relevant to the key factual dispute the Court will be asked to determine, namely, Mr Sinclair’s state of mind at the time he decided to dismiss Ms Ponte. This is because:
(a)The invoices will show the nature and extent of the practice of Ms Ponte and Mr Dahlstrom (another employee of the respondent) in discounting insurance for family members or any other clients over the two financial years leading up to the dismissal;
(b)This evidence, in combination with the other evidence in the proceeding (such as the close proximity in which they worked and the oversight Mr Sinclair had over Ms Ponte and Mr Dahlstrom’s work), will assist the Court to decide whether Mr Sinclair authorised his employees to discount commissions or brokerage fees.
(c)Whether Mr Sinclair authorised his employees to discount commissions and brokerage fees is “highly relevant” to the question of whether Mr Sinclair genuinely held a belief that Ms Ponte engaged in serious misconduct by discounting commissions and fees.
(c)Ms Ponte has informally requested discovery of various documents from the respondent which requests have been refused. GNH consented to Ms Ponte making an application for discovery after the filing and service of evidence in chief. Despite Mr Sinclair’s evidence that in March 2022 he identified “hundreds of transactions” whereby Ms Ponte manipulated invoices, GNH has still not disclosed any of these documents.
(d)The Discovery Application is not a fishing expedition as Ms Ponte knows the documents exist by reason of her having worked in the business and by reason of her having obtained some of the invoices herself from family members, which she subsequently disclosed to GNH.
(e)The provision of the documents should not be “overly burdensome” on GNH as the invoices should be available electronically and a similar exercise (on a larger scale) was undertaken by GNH’s bookkeeper over the period 4 to 8 March 2022.
In oral submissions, Mr Holding of counsel who appeared for Ms Ponte emphasised the relevance of the documents and identified this in terms of their capacity to demonstrate that GNH authorised or at least acquiesced in an arrangement whereby employees discounted brokerage fees for relatives. It was submitted that the documents had the capacity to support Ms Ponte’s case theory that the reason postulated by GNH for her dismissal was a fabrication. The documents would supply part of the objective facts and circumstances against which that reason should be assessed for its veracity.
Mr Holding made the submission that an order for discovery would be unlikely to operate oppressively. In this respect, while he did not seek to cross-examine Mr Sinclair on his affidavit, he submitted from the bar table that Ms Ponte, based on her experience working with GNH, would be able to interrogate the invoices to identify which employee had performed the transaction, notwithstanding it was the evidence of Mr Sinclair that the invoices would not disclose this information. Insofar as Mr Sinclair’s evidence suggested that the process of accessing and extracting the documents in category 1 would take approximately 171 hours, the submission was made that this likely involved an exaggeration of the actual time required to undertake this exercise but to the extent that this was a product of inefficiencies in the systems used by GNH, Ms Ponte should not be prejudiced by this.
GNH
In its written submissions GNH submits that discovery is not appropriate in the interests of the administration of justice in circumstances where the documents sought are not relevant or are of tangential relevance only.
According to GNH, the documents sought to be discovered in category 1 appear to relate to Ms Ponte’s alleged conduct the subject of the dismissal – specifically the reducing or waiving of broker fees and commissions – and whether this was an established practice within the GNH business.
GNH submits that in determining whether it contravened the FW Act by dismissing the applicant for a prohibited reason, the Court does not need to make any findings about whether Ms Ponte did in fact engage in the conduct alleged by GNH or if she did, whether such conduct was common practice. GNH submits that at best these are matters which may potentially go to the fairness of the dismissal.
Here instead, the Court’s inquiry is confined to the causal relationship between the adverse action (dismissal) and the alleged attribute or activity of Ms Ponte. Questions such as whether Ms Ponte in fact engaged in the misconduct for which she was dismissed and whether the termination was fair or reasonable are not relevant except insofar as they might bear evidentially upon a finding as to whether the true reason for the dismissal was that stated by GNH.
GNH submits that as a consequence of their lack of relevance, an order requiring production of category 1 documents would broaden the scope of the issues before the Court and encourage a trial or examination into the validity or fairness of Ms Ponte’s dismissal which is not appropriate in the scope of the claims made by Ms Ponte in this proceeding.
In oral submissions, Ms Pace of counsel who appeared for GNH submitted that even if the Court was to accept that the category 1 documents were relevant in the manner identified by Ms Ponte, the unchallenged evidence of Mr Sinclair established that the documents would not do by way of disclosure of information, what Ms Ponte purported (or hoped) that they would. This was because Mr Sinclair deposed, in respect of the invoices that:[1]
a) The financial records of Greater National Limited indicate that there are 5,142 documents that would fall within this category of documents;
b)In order to extract the invoices, it would be necessary to access and download each document separately. I estimate that it would take approximately 2 minutes per document, meaning that to access and extract all 5,142 documents would be likely to take 171.4 hours, with further time then likely to be required to review and collate such documents;
c)GNH does not have any employees that could attend to this task. Further, GNH’s bookkeeper is engaged part time and has other duties in the office to attend to. Accordingly, my wife, Alina Sinclair and I would need to attend to this task;
d)The invoices do not show the identity of the employee who processed each transaction (for example Ms Ponte, Mr Dahlstrom or myself);
e)Transactions involving altered commissions will not be in any way apparent from the invoices, as the commission is built into the base premium and is not shown or itemised on the invoices; and
f)Where an invoice shows an amended broker fee, it does not show whether I authorised the amended broker fee.
[1] Paragraph 4 of the affidavit of Robert Woodfull Sinclair affirmed 9 November 2023.
Ms Pace submitted that this evidence went both to the relevance of the category 1 documents and to the cost and time burden that would fall on GNH should it be required to discover these documents.
LEGAL FRAMEWORK
Objects of the legislation
The parties’ written submissions acknowledge appropriately that in the determination of the Discovery Application the Court must have regard to the objects of this Court’s legislation.
The Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) provides that its objects are, relevantly, “to ensure that justice is delivered by federal courts effectively and efficiently”: s 5(a). Those objects must be read together with the provisions of the FCFCOA Act relating to the overarching purpose of the civil practice and procedure provisions which include in s 190(1) that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
Section 176
Section 176 of the FCFCOA Act provides as follows:
(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.
Discovery in this Court
Both parties took the Court to the decision of Lucev FM in Abrahams v Qantas Airways Ltd (No 2) (2007) 210 FLR 314; [2007] FMCA 639 at [25] where, by reference to what was then the Federal Magistrates Act 1999 (Cth), his Honour observed:
25.In summary, it appears that in order to obtain an order for discovery in this Court the Court must determine on the available evidence that it is in the interests of the administration of justice to do so, and in making that determination must have regard to whether allowing discovery would be likely to contribute to the fair and expeditious conduct of the proceedings and such other matters as the Court considers relevant. Those other matters might include:
(a) the relevance of any documents sought to be discovered;
(b) the volume of documents sought to be discovered;
(c)whether there is a court book containing relevant documents, and the extent to which relevant documents are included in the court book;
(d) whether discovery would narrow the issues;
(e) whether both parties seek discovery;
(f) whether there is consent to discovery;
(g) whether discovery is “of benefit” in the litigation; and
(h) the effect of discovery on litigants, especially, vulnerable litigants.
Exception not the rule
In Vinden v Wrong Fuel Rescue Pty Ltd [2019] FCCA 1091 (Vinden) at [10]-[13], Judge Kendall of the then Federal Circuit Court of Australia observed as follows:
10.Overall, there is a reluctance in this Court to grant orders for discovery and interrogatories. Indeed, in Vaden Driesden v Edith Cowan University (2012) 226 IR 452, the Court referred to the power as one that is “rarely used”.
11. Section 45(1) of the FCCA Act is a general statutory prohibition on discovery.
12.Before granting a declaration under s. 45 of the FCCA Act, the Court will specifically consider s. 45(2). That section provides:
(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.
13.In this Court, there appears to be a presumption that the “fair and expeditious conduct of the proceeding” does not require discovery: Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442 at [54]. That does not mean, however, that it will not ever be given.
While observations of these kind do not foreclose the issue, they do support the position that discovery is the exception and not the rule in the procedure of this Court. It follows that arguments made by reference to general discovery are unlikely to avail an applicant.
CONSIDERATION
Relevance
In a legal framework that emphasises the pursuit of fair and expeditious proceedings, an assessment that documents are relevant is a necessary but not decisive consideration. Nonetheless, I am satisfied that documents which are capable of exposing the invoicing practices of GNH, insofar as they involve the application of commissions and/or broker fees, are relevant to an issue or question raised squarely in this proceeding, being, why GNH as employer took adverse action (in the form of dismissal) against Ms Ponte.
It is not controversial that while the discharge of the s 361 onus usually requires decision-makers to give direct evidence of their reasons for taking the adverse action, the determination of why an employer took adverse action against an employee is to be made in the light of all the circumstances established in the proceeding: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [32].
Further, while an adverse application does not provide the opportunity or constitute the vehicle for a “broad inquiry as to whether [an applicant] has been subjected to a procedurally or substantively fair outcome”: Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17, [48] (Bromberg J), neither are matters of process of substance necessarily irrelevant to the prosecution of such a case.
In Serpanos v Commonwealth of Australia [2022] FCA 1226, [126]-[127] Snaden J observed:
126That is not to say, however, that any substantive or procedural unfairness or illogicality inherent in what a respondent nominates as its reasons for conducting itself in any given way are wholly irrelevant. In Wong v National Australia Bank Limited [2021] FCA 671 (Snaden J), [83] I made the following observations, which bear repeating now:
In some circumstance, it might be possible to infer from evidence tending to show that a respondent’s opinions were formed wrongly or unfairly – that is to say, inconsistently with fact or in a way otherwise susceptible to some other legitimate criticism – that those opinions either were not, in fact, formed or did not relevantly actuate the respondent’s conduct (or both). Such circumstances might warrant the rejection of the respondent’s evidence as to why it did what it did and a finding that the respondent failed to rebut the presumption established by s 361 of the FW Act. But, regardless, the inquiry remains: did the respondent form the views that it said that it formed; and if it did, was it actuated to conduct itself in the way that it did on account of them (and not on account of any proscribed reason)?
Applying this analysis, I accept that evidence of a systemic practice within the respondent of discounting or removing commission and/or broker fees may relevantly create reason to doubt the explanation offered by GNH for Ms Ponte’s dismissal and justify, potentially, the rejection of such explanation.
The difficulty here is that on the available evidence, which primarily is constituted by the affidavit of Mr Sinclair which Ms Ponte criticised for its lateness but did not seek to challenge through cross-examination, indicates that discovery of the category 1 invoices would not illuminate the respondent’s commission and broker fee practices, save that it would be possible to ascertain from the face of the invoices whether an amended broker fee had been applied. However, the relevance and therefore usefulness of this information, dissociated from information as to whether Mr Sinclair had authorised the amendment and which employee had processed it, would be negligible.
There is no evidence, only supposition, as to the capacity of Ms Ponte to extrapolate from or otherwise interpret these documents so as to make them meaningful in the context of what she hopes to achieve from their production.
Volume of documents and effect of discovery on litigants
On the available evidence, 5,142 documents would be captured by category 1, even on its more limited articulation. This is not a small number and could have consequences for the efficient conduct of the proceeding. It would also impose a significant resource cost on GNH, requiring the equivalent (assuming a 40-hour working week) of over four weeks of an individual’s labour, in the context of a relatively small business.
Narrowing of issues and benefit to litigation
The documents sought, if used for the stated purpose, would not contribute to any narrowing of the issues but rather operate on an issue that is central to the disposition of the case and potentially expand the parameters against which this issue is to be assessed. The benefit to the litigation is negligible in circumstances where the documents will not produce information of the kind anticipated by Ms Ponte (refer [38] above).
Consent
Ms Ponte appears to contend that because GNH provided its consent to her making an application for discovery after the exchange by the parties of evidence in chief that this is a consideration that militates in favour of discovery. However, I am not persuaded by this submission. The consent should not be understood as operating on any particular category of document or involving any concessions with respect to the appropriateness of discovery in this case. Rather, the consent was facultative and given on conditions as to the timing of any such application. GNH has maintained its opposition to the discovery of documents of a kind comprehended by category 1 since at least the time that the subpoenas referred to at [9]-[10] were issued.
CONCLUSION AND ORDERS
Each of the factors set out and considered above weigh against the making of a declaration that an order for discovery is appropriate in the interests of the administration of justice. Accordingly, I will order that the Discovery Application be dismissed with costs, if any, to be reserved.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons . Associate:
Dated: 16 November 2023
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