Rizk v PVH Brands Australia Pty Ltd (No 2)

[2021] FCCA 1121

FEDERAL CIRCUIT COURT OF AUSTRALIA

Rizk v PVH Brands Australia Pty Ltd (No 2) [2021] FCCA 1121

File number(s):

SYG 503 of 2020

Judgment of:

JUDGE MANOUSARIDIS

Date of judgment:

25 May 2021

Catchwords:

PRACTICE AND PROCEDURE – Industrial Law – application by the respondent for order to set aside four subpoenas to give evidence issued at the request of the applicant against the respondent’s employees – whether the applicant applied for the issue of the subpoenas with the object and the expectation, on reasonable grounds, of obtaining from the employees relevant evidence – the applicant applied for the issue of all four subpoenas with the object and expectation that all four employees would give relevant evidence – the expectation in relation to three of the four employees is based on reasonable grounds but not in relation to one of the employees – one of the four subpoenas to give evidence set aside.

Legislation:

Evidence Act 1995 (Cth) ss 37, 38

Fair Work Act 2009 (Cth) ss 62(1), 341(1), 385

Federal Circuit Court Rules 2001 (Cth) rr 15A.02, 15A.09

Cases cited:

R v Baines [1909] 1 KB 258

Witness v Marsden [2000] NSWCA 52

Number of paragraphs:

28

Date of last submission/s:

16 April 2021

Date of hearing:

Decided on the papers

Place:

Sydney

The Applicant:

Appeared in person

Counsel for the Respondent:

Mr B Fogarty

Solicitor for the Respondent:

The Workplace Employment Lawyers

ORDERS

SYG 503 of 2020

BETWEEN:

CHRISTEN RIZK

Applicant

AND:

PVH BRANDS AUSTRALIA PTY LTD

Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	25 MAY 2021

THE COURT ORDERS THAT:

1.The subpoena to give evidence issued against Mr Robert Repaci is set aside.

2.The respondent’s application to set aside the subpoenas to give evidence issued against Mr Guy Griffiths, Mr Craig Barnett, and Mr Michael Gazal is dismissed.

REASONS FOR JUDGMENT

INTRODUCTION

1. In these reasons for judgment I consider whether I should set aside four subpoenas to give evidence that the applicant applied to the Court to issue against four employees of the respondent (PVH). This question has arisen in a proceeding for relief under the Fair Work Act 2009 (Cth) (FW Act).

   BACKGROUND

2. The applicant stated her grounds for relief in Part G of the Form 3 the applicant filed. I summarised the applicant’s claims in my reasons for judgment published on 5 November 2020 (earlier reasons) as follows:[1]

   [1] Rizk v PVH Brands Australia Pty Ltd [2020] FCCA 2976, at [10]-[11]

   Part G of Form 3 required the applicant to state the grounds on which she relies for claiming that her employment was unlawfully terminated. The applicant did so in a document titled “Part G - Contravention(s) alleged” (Part G claims), which she annexed to the Form 3. In the Part G claims the applicant claims as follows:

   (a)       On 25 June 2019 PVH hired the applicant as a Commercial Analyst.

   (b)PVH did not provide the applicant with a proper induction or training plan to follow until 7 November 2019.

   (c)During her employment with PVH the applicant had sent three emails to her manager, Ms Haksever, but the applicant received no response. The first email related to the applicant’s assistant, Mr X. The applicant complained Mr X displayed aggressive behaviour, and told her that it was the applicant’s duty to escalate the matter to the applicant’s manager.

   (d)The applicant sent a second email on 11 October 2019. This related to what the applicant claimed was the “inhumane treatment” she received during her employment with PVH. The applicant asserted this consisted in working an extra 200 hours for which the applicant was not paid, but instead was given two days leave; the applicant’s being given unrealistic time frames within which to complete tasks that had been assigned to her; requiring the applicant to work almost 16 hours per day, and also to work on weekends; and in addition to performing her own roles, the applicant performed Ms Haksever’s duties when she was absent from work. The applicant expressed her disappointment in the way she had been treated, and the applicant hoped to resolve all of these matters when she returned from holidays.

   (e)The applicant sent the second email the day before she went on leave. The applicant read a response to her complaint prepared by the head of PVH’s Human Resources which stated that the applicant’s manager, Ms Haksever, had already planned to end the Employment Contract in October 2019 which was after the applicant sent her first complaint.

   (f)The applicant returned to work on 4 November 2019. Given she had received no response from Ms Haksever to her second email, the applicant requested a meeting with Ms Haksever on 8 November 2019 to discuss the ongoing situation about “inhumane work conditions”. The applicant met Ms Haksever on 8 November 2019. The applicant discussed her job duties, and said she would like to meet monthly with Ms Haksever to discuss the agreed plan for improved work conditions. Ms Haksever “threatened” the applicant by stating the applicant was “still on preparation [sic] period”, and she needed to make a decision. Ms Haksever said nothing about the applicant’s performance.

   (g)Ms Haksever agreed to meet the applicant again on 13 November 2019, but she did not invite the applicant to any meeting. The applicant sent Ms Haksever a third email on 13 November 2019 in which she made complaints.

   (h)After the applicant sent her email on 13 November 2019 the applicant received an email inviting her to attend a formal meeting on 14 November 2018. Ms Mackey, however, was also invited. At the meeting Ms Mackey said: “as you know you’re on your preparation [sic] period and your contract is terminated”. The applicant said: “I’m being fired without giving me any valid reasons”. The applicant asked why she was being fired. Ms Mackey said it was an “executive decision”.

   (i)PVH’s termination of the applicant’s employment was a breach of the “general protection law”, because it constituted adverse action PVH had taken because the applicant had exercised her workplace right.

   (j)The applicant refers to matters identified in s.387 of the FW Act which relates to unfair dismissals.

   The applicant also claims in the Part G claims an amount for “Reasonable overtime”. The applicant refers to the National Employment Standards (NES). The applicant claims the NES applies to employees covered by the national workplace relations system, regardless of any award, agreement, or contract.

3. On 8 May 2020 PVH applied for an order that the proceeding be dismissed because the applicant did not have reasonable prospects of succeeding on any of her claims. In my earlier reasons I concluded as follows:

   I was not satisfied the applicant has no reasonable prospects of succeeding in establishing a contravention of s 340(1) of the FW Act.

   The applicant did not have reasonable prospects of prosecuting her claim based on an alleged contravention of s 385 of the FW Act because this Court does not have jurisdiction to determine whether the applicant was unfairly dismissed.

   I was not satisfied the applicant would have no reasonable prospects of succeeding in a claim that PVH contravened s 62(1) of the FW Act, and that she suffered loss in the form of having undertaken additional work for which she is entitled to be paid compensation if the applicant were to adduce additional evidence.

4. On 5 November 2020 I made orders striking out a number of paragraphs contained in Part G of the Form 3 the applicant had filed, and made directions for the applicant and PVH to file affidavits. The applicant filed further affidavits made on 18 November 2020. PVH filed affidavits made by Ms Goyen, Ms Jubb, Ms Fox, Ms Haksever, Ms Mackey, Ms Foreman, and Ms Haratzis.

   (a)Ms Goyen was employed by PVH as a financial planning and analysis manager and, in that role, she had dealings with the applicant. Ms Goyen deposes she had concerns about the applicant’s performance which she raised informally in conversations with the applicant’s manager, Ms Haksever, Ms Goyen’s manager, Mr Griffiths, and with PVH’s human resources advisor, Ms Mackey.

   (b)Ms Jubb was employed in the position of a general manager. Ms Jubb deposes to her impressions of the work the applicant performed as a commercial analyst; to Ms Jubb’s having had informal discussions with Ms Haksever before 14 October 2019 about the applicant’s performance; and to a conversation Ms Jubb had with Ms Haksever in October 2019 in which Ms Haksever asked for Ms Jubb’s opinion about the applicant’s performance and Ms Jubb expressing her opinion on the applicant’s performance.

   (c)Ms Fox is employed by PVH as a general manager. She deposes she had a conversation with Ms Haksever on 18 October 2019 in which Ms Haksever expressed concerns about the applicant’s performance and feedback Ms Haksever had received from other general managers about the applicant’s performance.

   (d)Ms Haksever deposes to matters relating to the applicant’s employment contract and duties; the applicant’s training; what Ms Haksever did in response to the applicant’s email of 15 September 2019 in which the applicant complained about Mr X; the tasks Ms Haksever gave to the applicant to perform during Ms Haksever’s leave; Ms Haksever attending a meeting on 8 October 2019 with Ms Mackey, Mr Barnett (PVH’s chief executive officer), and Mr Griffiths during which adverse comments were made about the applicant’s performance; Ms Haksever attending a meeting with the applicant on 10 October 2019 in which she went through the work the applicant performed during Ms Haksever’s absence; Ms Haksever making inquiries in relation to the applicant’s performance; observations about the applicant’s interpersonal skills; Ms Haksever’s decision on 18 October 2019 to terminate the applicant’s employment, and the reasons for that decision; and the termination of the applicant’s employment.

   (e)Ms Mackey is employed by PVH as human resources advisor. She deposes to matters relating to the applicant’s contract of employment; leave the applicant had taken; negative feedback in relation to the applicant’s performance; attending a meeting on 8 October 2019 with Mr Barnett, Mr Griffiths, and Ms Haksever; Ms Mackey meeting with Ms Haksever on 1 November 2019 in which Ms Haksever told Ms Mackey that she had decided to terminate the applicant’s employment and the reasons for which she had decided to do that; events relating to the termination of the applicant’s employment with PVH; and the hours for which the applicant worked.

   (f)Ms Foreman is employed by PVH as general manager. She deposes to her opinion on the work the applicant performed in relation to one matter, and a conversation she had with Ms Haksever about the applicant’s performance.

   (g)Ms Haratzis is employed by PVH as group financial controller. She deposes to two work-related interactions with the applicant.

5. The applicant filed responses to each of these affidavits on 11 January 2021.

6. On 2 February 2021 I set the matter down for hearing for five days commencing on 19 April 2021, and directed the parties notify the other of the witnesses each required to be made available for cross-examination.

7. I relisted the proceeding for directions on 12 March 2021. I did so after the applicant, who is not legally represented, sent an email to the Court in which she raised a number of questions about how the hearing will proceed. At the directions hearing it became apparent the applicant intended to issue subpoenas to a number of PVH’s employees other than those who had made affidavits. Counsel for PVH indicated that he had instructions PVH would accept service of the subpoenas by the applicant sending them to PVH’s address for service. I ordered that by 19 March 2021 the applicant serve on PVH’s address for service the subpoenas she proposed to issue against employees of PVH.

8. On 16 March 2021 the Court, at the request of the applicant, issued a subpoena to give evidence to each of Mr Robert Repaci, Mr Guy Griffiths, Mr Craig Barnett, and Mr Michael Gazal.

9. I again listed the proceeding before me for a directions hearing, this time on 23 March 2021. I did so to hear PVH’s application that the hearing dates be vacated. At the directions hearing counsel for PVH contended the subpoenas the applicant had caused to be issued to its employees should be set aside. I vacated the hearing that had been set down for 19 to 23 April 2021, and listed the matter for hearing for five days commencing on 21 June 2021. I also made the following orders:

   (a)by 9 April 2021 the applicant file and serve a document in which she provides a brief summary of the evidence she expects each of the persons on whom the applicant has arranged to serve a subpoena will give at the hearing, and the relevance of the evidence to any issue in the proceeding;

   (b)by 16 April 2021 PVH file and serve a response; and

   (c)unless by 23 April 2021 either party requests an oral hearing I would be at liberty to considered and give judgment on the papers on whether any of the subpoenas served on Mr Repaci, Mr Griffiths, Mr Barnett, and Mr Gazal should be set aside.

10. On 9 April 2021 the applicant filed a document titled “Submissions on Subpoenas”, and PVH filed its response on 16 April 2021, being a document titled “Respondent’s Outline of Submissions in respect of the Applicant’s Subpoenas”. On 23 April 2021 the applicant sent by email a response to PVH’s document.

11. No party has required an oral hearing. I therefore consider myself at liberty to determine on the papers whether any of the subpoenas should be set aside.

    PRINCIPLES

12. The subpoenas the applicant caused to be issued against Mr Repaci, Mr Griffiths, Mr Barnett, and Mr Gazal are subpoenas to give evidence. That class of subpoena is also called a “subpoena ad testificandum”, and is to be distinguished from a “subpoena duces tecum” - a subpoena to produce documents.

13. This Court has power under r 15A.02 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) to issue a subpoena to give evidence at the request of a party. A party makes such request by completing a prescribed form of subpoena and filing it with the Court. The Court issues the subpoena without any order of a Judge or Registrar of the Court; and it is issued by staff at the Court’s Registry accepting for filing the completed form of subpoena and recording on it the place at which and the time and day on which the person to whom the subpoena is addressed must attend to give evidence.

14. The Court also has power under r 15A.09 of the FCC Rules to set aside a subpoena that has been issued. There are many authorities that identify the principles for setting aside of subpoenas for production.[2] There are some authorities, however, that have also considered the circumstances in which a court may set aside a subpoena to give evidence. Heydon JA (as his Honour then was) referred to a number of these authorities in Witness v Marsden, and noted the “authorities indicate that there are numerous circumstances in which the recipient of a subpoena ad testificandum, or equivalent process, can move to set it aside”.[3] One of those cases is R v Baines,[4] where, in a criminal trial, persons on whom subpoenas to give evidence had been issued successfully obtained an order setting aside the subpoenas on the ground that the subpoenas were not issued in good faith for the purpose of the persons against whom they were issued giving relevant evidence. Bingham J said (emphasis added):[5]

    There can be no doubt as to the jurisdiction of the Court to interfere where it is satisfied that its process is being used for indirect or improper objects. It must not be supposed that the position which the applicant occupy [one was Prime Minister, HH Asquith, and the other Home Secretary, H J Gladstone] affords them any privilege. They stand in the same position as any other of His Majesty’s subjects. But the Court has to inquire whether its process has been issued against them with the object and expectation on reasonable grounds of obtaining from them evidence which can be relevant. . . . We have before us the affidavits of the applicants, in which they both swear that they are wholly unable to give any evidence which can possibly be relevant to any issue which may arise. I believe that to be true. Therefore it would be an idle waste of time and money to require them to go down to Leeds to give evidence. The applicants further say that no application has been made to them by the defendants for any proof of the evidence to be given. That statement satisfies me that this process has not been issued for the simple and proper purpose of obtaining evidence, but for a different and ulterior purpose, a purpose to which the process of this Court ought not to be applied.

    [2] See, for example, Wong v Sklavos [2014] FCAFC 120, at [12]

    [3] Witness v Marsden [2000] NSWCA 52, at [60]

    [4] R v Baines [1909] 1 KB 258, at page 261

    [5] R v Baines [1909] 1 KB 258, at page 261

15. The question I must consider, therefore, is whether the applicant has caused the subpoenas to be issued against Mr Repaci, Mr Griffiths, Mr Barnett, and Mr Gazal with “the object and expectation on reasonable grounds of obtaining from them evidence which can be relevant”.[6]

    [6] R v Baines [1909] 1 KB 258, at page 261

    PARTIES’ SUBMISSIONS

16. In her “Submissions on Subpoenas” the applicant submits as follows (errors in original):

    His Honour Judge Manousaridis told me that if I don’t cross-examine the witnesses and proof that their affidavits were not true, the court would consider their affidavits as true and accordingly would decide on my case.

    After reading the affidavits again, I realised that I can’t just cross-examine the witnesses, but I also need to cross-examine the executives and Michael Gazal, as they play very important role in their affidavits, and ultimately in the decision to terminate my contract (again, that’s all according to the statements of the witnesses), and I can’t just be questioning someone about someone else, that doesn’t make any sense, and if that third person is not there to answer for himself, it will just be my word against the “witness” word but to put an end to all the arguments and who said what, I decided to bring the executives and Michael Gazal to the stand and ask them about the events that was mentioned in the affidavits, and they can answer for themselves, and then the court would have a clear story and then would be able to make an informed and fair decision.

17. The applicant then identifies the portions of the affidavits PVH has filed in which the deponent refers to, or reports conversations with, or the attitudes of, Mr Griffiths, Mr Barnett, or Mr Gazal. In particular:

    (a)Mr Gazal is mentioned in the affidavits of Ms Haratzis and Ms Haksever. Ms Haratzis deposes to a conversation with Mr Gazal in which he says figures in a business case the applicant prepared did not make sense; and Ms Haratzis also deposes to a conversation with the applicant in which Ms Haratzis says she told the applicant she understood Mr Gazal had some concerns with the business case the applicant had prepared.[7] Ms Haksever deposes to a conversation with Ms Haratzis in which Ms Haratzis reported the “Chairman”, namely, Mr Gazal, “was quite upset with” a “presentation” the applicant had given, and that he had “tasked” Ms Haratzis “with checking” the applicant’s work “because he was underwhelmed”.[8]

    (b)Mr Barnett is mentioned in Ms Mackey’s affidavit. Ms Mackey deposes to Mr Barnett being present at a meeting on 8 October 2019 with Ms Haksever, Mr Griffiths, and herself. Ms Mackey deposes she initiated the meeting because she wanted to discuss the performance concerns that had been raised with her, in relation to the applicant and a number of other employees in the Commercial team with the relevant managers while these employees were on probation. Ms Mackey deposes Mr Barnett said that he had heard from “Deb” (presumably Ms Foreman) that she was not happy with the applicant’s work, and that in relation to the applicant Ms Mackey, Mr Griffiths and Ms Haksever agreed that Ms Haksever would continue to assess the applicant’s performance.[9]

    (c)Mr Griffiths is mentioned in the affidavits of Ms Goyen, Ms Mackey, and Ms Haksever. Ms Goyen deposes she expressed her concerns about the applicant’s work performance with Ms Haksever, Mr Griffiths, and Ms Mackey; Ms Goyen had conversation with Mr Griffiths and Ms Haksever in which she said “we need to cut [the applicant] loose while on probation as she is not going to be a good fit capability-wise” in response to which Mr Griffiths said he “will be guided by [Ms Haksever] but I will also take on board your concerns and keep a watchful eye on the situation”; and in response to matters Ms Goyen raised with Ms Mackey, Ms Mackey said she was “aware there are issues and” she was “working through those with” Ms Haksever, and Mr Griffiths “is also in the loop”.[10] Ms Mackey deposes to Mr Griffiths being present at the meeting of 8 October 2019 to which I have already referred. Ms Haksever deposes to attending the meeting of 8 October 2019 to which I have already referred, and to a conversation with Mr Griffiths in the week commencing on 21 October 2019 in which she spoke about the applicant’s performance and Mr Griffiths said that if “everyone gave consistent feedback, we should look at exiting her”.[11]

    [7] Affidavit F Haratzis 16.12.2020, [20]

    [8] Affidavit N Haksever 16.12.2020, [60]

    [9] Affidavit M Mackey 16.12.2020, [18], [19]

    [10] Affidavit S Goyen 16.12.2020, [22]-[26]

    [11] Affidavit N Haksever 16.12.2020, [66]

1. Finally, the applicant refers to Mr Repaci. The applicant does not say any of the deponents refer to Mr Repaci. The applicant submits, however, Mr Repaci should be made available to be a witness because he signed on behalf of PVH the “Form F8A – Response to general protections application” (Form F8A) PVH lodged with the Fair Work Commission (FWC). Schedule A to that document contains the reason for which PVH contends it terminated the applicant’s employment, namely, that “various aspects of her performance and suitability for the role of Commercial Analyst were unsatisfactory”.[12]

   [12] A copy of the Form F8 is at page 5 of the Applicant’s Submissions on Subpoenas

2. In its response PVH submits that none of the persons against whom the applicant has caused to issue subpoenas “can give evidence bearing on any of the Real Issues”.[13] The issues PVH contends are the “Real Issues” are the “real issues in dispute” it identifies in paragraph 14 of its submissions. PVH submits the applicant has issued the subpoenas in the hope that something useful may arise in evidence from the four persons and, for that reason, constitutes a fishing expedition.[14] PVH further submits the applicant can “fairly test and probe all references to Mr Gazal, Mr Barnett, Mr Griffiths and Mr Repaci by cross-examining the seven witnesses called” by PVH; and in any event the Court can “attribute weight (perhaps, little to none) where the Respondent’s evidence from or about one of the four persons is hearsay, or, in the alternative, the Court could simply decide not to read those references or treat them as (entirely) inadmissible”.[15]

   [13] Respondent’s Outline of Submissions in respect of the Applicant’s Subpoenas, [16]

   [14] Respondent’s Outline of Submissions in respect of the Applicant’s Subpoenas, [17]

   [15] Respondent’s Outline of Submissions in respect of the Applicant’s Subpoenas, [19] - [20]

   SHOULD THE SUBPOENAS BE SET ASIDE?

3. PVH does not refer to and, therefore does not engage with the reasons the applicant has stated in her written submissions for her having applied to issue the subpoenas to Mr Griffiths, Mr Barnett, Mr Gazal, and Mr Repaci. The applicant there submits that these persons “play [a] very important role in their affidavits, and ultimately in the decision to terminate my contract”. PVH does not dispute this submission; and it does not articulate what relevance, if any, PVH intends to attach to those portions of the affidavits that refer to Mr Gazal, Mr Barnett, and Mr Griffiths. PVH also has not filed any affidavit by any of Mr Gazal, Mr Barnett, and Mr Griffiths that they are not able to give any evidence regarding the matters in relation to which their names have been mentioned in affidavits PVH has filed.

4. It is open to me to find, and I do find, that the applicant’s purpose in issuing the subpoenas is to have each of Mr Repaci, Mr Gazal, Mr Barnett, and Mr Griffiths give evidence at the hearing in relation to matters that are relevant to the proceeding, and that the applicant expects that each of these persons will give evidence that is relevant to an issue, or issues, in the proceeding. The applicant submits as much. The applicant supports that submission by identifying where each of Mr Gazal, Mr Barnett, and Mr Griffiths are referred to in the affidavits PVH has filed, and also identifies Mr Repaci as the person who signed the Form F8 on behalf of PVH.

5. It is also open to me to find, and I do find, the applicant has reasonable grounds for expecting to obtain relevant evidence from each of Mr Gazal, Mr Barnett, and Mr Griffiths if they are called to give evidence.

   (a)In the affidavits of Ms Goyen and Ms Haksever Mr Gazal is quoted as having expressed a negative opinion about the applicant’s performance. It is therefore reasonable to expect that PVH intends to rely on Mr Gazal’s opinion either as evidence of the truth about which the opinion was expressed, namely, the applicant’s poor performance or, if not for its truth, as a matter on which Ms Haksever relied for deciding to terminate the applicant’s employment. If called, it is reasonable to expect Mr Gazal will be able to give evidence about whether he had expressed the opinion about the applicant the deponents say he did. If Mr Gazal confirms he expressed such opinions that will be liable to support PVH’s case; but if Mr Gazal does not give such evidence the evidence he will give might have a tendency to undermine PVH’s case, particularly because such evidence might undermine Ms Haksever’s evidence that she was aware Mr Gazal had expressed a negative opinion about the applicant’s performance.

   (b)In the affidavit of Ms Mackey, Mr Barnett is said to have been present at the meeting held on 8 October 2019 with Ms Haksever, and Mr Griffiths which, according to Ms Mackey, she called to discuss concerns that had been raised about the applicant’s performance, and where it had been agreed that the applicant’s performance would continue to be monitored. It is reasonable to infer from Ms Mackey’s evidence that what was discussed at the meeting is relevant to PVH’s defence. If called it is reasonable to expect that Mr Barrett will be able to give evidence about the meeting. If Mr Barnett gives evidence that is consistent with Ms Mackey’s evidence, that will have the tendency of supporting PVH’s case; but if he does not give such evidence, it might have the tendency to undermine PVH’s case. Further, it is reasonable to expect that, if called, Mr Barnett will be able to give evidence relevant to determining whether any person other than Ms Haksever had any role in deciding whether to terminate the applicant’s employment.

   (c)Mr Griffiths is mentioned in the affidavits of Ms Goyen, Ms Mackey, and Ms Haksever. As has been mentioned, he is referred to as one of the persons who attended the meeting of 8 October 2019; he is one of the two persons to whom Ms Goyen said PVH might need to “cut loose” the applicant in response to which Mr Griffith said he would take on board Ms Goyen’s concerns and keep a watchful eye on the situation; and in a conversation with Ms Haksever Mr Griffiths said that if “everyone gave consistent feedback, we should look at exiting her”.[16] Given that deponents have referred to Mr Griffiths in their affidavits it is reasonable to assume that the matters in relation to which Mr Griffiths is mentioned are relevant to PVH’s case. That means that if Mr Griffiths is called he will be able to give evidence about those matters and, for that reason, will be relevant to PVH’s case and, therefore, to issues in the proceeding. Further, it is reasonable to expect that, if called, Mr Griffiths will be able to give evidence relevant to determining whether any person other than Ms Haksever had any role in deciding whether to terminate the applicant’s employment.

   [16] Affidavit N Haksever 16.12.2020, [66]

6. It is true, as PVH submits, that the applicant could test the deponents’ references to what Mr Gazal, Mr Barnett, Mr Griffiths said or did; but that is no substitute for evidence that each of Mr Gazal, Mr Barnett, and Mr Griffiths might be in a position to give about the matters in relation to which the deponents refer. The best evidence for testing whether person A said or did what person B says person A said or did is not by cross-examining B, but by asking person A directly what he or she said or did. Further, the evidence it is reasonable to expect Mr Gazal, Mr Barnett and Mr Griffiths are in a position to give may extend beyond the matters in relation to which the deponents refer to Mr Gazal, Mr Barnett, Mr Griffiths.

7. PVH’s submission that it might be open to the Court to disregard as hearsay evidence of what deponents say Mr Gazal, Mr Barnett, and Mr Griffiths said assumes that such evidence is or may be hearsay. In the absence of any unqualified acknowledgment to the effect that evidence from the deponent of what Mr Gazal, Mr Barnett, or Mr Griffith is inadmissible as hearsay, I am not prepared to accept this submission. There are, in any event, two things that may be said about this submission. First, it is likely that if any objection were taken to evidence of what Mr Gazal, Mr Barnett, and Mr Griffiths said as hearsay, there is a likelihood that PVH will submit that the statements are being tendered for a non-hearsay purpose; that is, as evidence of statements to which Ms Haksever gave weight and on which she relied in deciding to terminate the applicant’s employment. Second, that the statements of Mr Gazal, Mr Barnett, or Mr Griffith might be tendered for a hearsay purpose does not mean that the evidence Mr Gazal, Mr Barnett, or Mr Griffith, if given by them in the witness box, would not be relevant.

8. For these reasons, I am satisfied the applicant applied for the issue of subpoenas to give evidence against Mr Gazal, Mr Barnett, and Mr Griffiths with the object and expectation, on reasonable grounds, of obtaining evidence from them that may be relevant to an issue in the proceeding. I therefore do not propose to set aside the subpoenas to give evidence that have been issued against Mr Gazal, Mr Barnett, or Mr Griffith.

9. The position of Mr Repaci is different. He is not mentioned in any of the affidavits PVH has filed. Mr Repaci’s only role on the evidence before me was to sign the Form F8A on behalf of PVH. It is not open to infer, and in any event I am not prepared to infer, from Mr Repaci’s having signed the Form F8A that he had any role in PVH’s decision to terminate the applicant’s employment. Thus, although I am satisfied the applicant applied for the issue of a subpoena to give evidence against Mr Repaci with the object and expectation that he will be able to give relevant evidence, there are no reasonable grounds for supposing he will be in a position to give any relevant evidence. I propose to order, therefore, that the subpoena issued against Mr Repaci be set aside.

   OTHER MATTERS

10. It may be relevant for the applicant to be aware of rules that will apply if she calls any of Mr Gazal, Mr Barnett, or Mr Griffiths as witnesses. There are two sets of rules that I should identify.

    (a)The first is the set of rules contained in s 37 of the Evidence Act 1995 (Cth) (Evidence Act), which applies when a witness is giving evidence in chief; that is, when the witness gives evidence in answer to questions asked by the person who calls the witness. Subsection 37(1) of the Evidence Act provides that a leading question must not be put to a witness whom the party calls subject to the exceptions provided for in s 37(1). In practical terms, this means that the applicant, being the person who (I assume) will call Mr Gazal, Mr Barnett, or Mr Griffiths, must ask these persons non-leading questions. It also means that the applicant will not be permitted to cross-examine the witness except in the circumstances provided for by s 38 of the Evidence Act, and the Court permits the applicant to cross-examine any of Mr Gazal, Mr Barnett, or Mr Griffith.

    (b)The second rule is that a witness who has been called to give evidence and, at least, has given evidence in chief, is liable to be cross-examined. That means that if the applicant calls and questions any of Mr Gazal, Mr Barnett, or Mr Griffiths, counsel for PVH will be entitled to ask questions of each of them on any matter relevant to the proceeding. Further, but subject to the discretion of the Court, counsel for PVH will be entitled to obtain evidence from each of Mr Gazal, Mr Barnett, or Mr Griffith by asking leading questions.

    DISPOSITION

11. I will order that the subpoena to give evidence issued against Mr Repaci be set aside, and dismiss PVH’s application to set aside the subpoenas issued against Mr Gazal, Mr Barnett, and Mr Griffiths.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       25 May 2021