Rust v Office of the Commissioner for Public Employment (No 2)
[2025] FedCFamC2G 650
•7 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rust v Office of the Commissioner for Public Employment (No 2) [2025] FedCFamC2G 650
File number(s): DNG 19 of 2022 Judgment of: JUDGE MANSINI Date of judgment: 7 May 2025 Catchwords: FAIR WORK – PRACTICE AND PROCEDURE – interlocutory application for discovery – applicant seeking disclosure of various documents referred to in the respondent’s evidence and submissions or otherwise believed to exist – where discovery not allowed unless declared appropriate in the interests of the administration of justice – consideration of relevant factors – discovery application allowed in part.
FAIR WORK - Objection to production of documents called by subpoena – whether legitimate forensic purpose – subpoenas set aside.
Legislation: Fair Work Act 2009 (Cth) ss. 340, 351, 570.
Federal Circuit and Family Court of Australia Act2021 (Cth) ss. 176, 190.
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr. 14.02, 16.01, 16.08, 16.13.
Cases cited: Abrahams v Qantas Airways Ltd (No 2) [2007] FMCA 639; (2007) FLR 314
Andrade v Goodyear & Dunlop Tyre (Aust) Pty Limited [2017] FCCA 497
Board of Bendigo Regional Institute of Technical and Further Education v Barclay(No 1) (2012) 248 CLR 500
Gloucester Shire Council v Fitch Ratings, Inc [2016] FCA 587
Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia [2009] FCA 1203
RailPro Services Pty Ltd v Flavel (2015) 242 FCR 424
Wong v Sklavos [2014] FCAFC 120
Division: Division 2 General Federal Law Number of paragraphs: 57 Date of hearing: 5 March 2025 Place: Melbourne Counsel for the Applicant: Mr Dixon Solicitor for the Applicant: Hall Payne Lawyers Counsel for the Respondent: Ms Preston Solicitor for the Respondent: Hunt & Hunt Lawyers ORDERS
DNG 19 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MARIA RUST
Applicant
AND: OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT
Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
7 MAY 2025
THE COURT ORDERS THAT:
1.The Respondent is to make discovery of the following documents, with such documents to be produced 3 calendar days prior to commencement of the trial:
(a)Any record of the 10 August 2021 meeting between Dwayne McInnes, Collette Thorne and Christophe Grumelart referred to at [61]-[65] of the McInnes Affidavit; and
(b)Any record of the 11 August 2021 meeting between Dwyane McInnes, Collette Thorne, Ms Rust and Lucio Matarazzo referred to at [66]-[74] of the McInnes Affidavit.
2.The interlocutory application for discovery filed on 9 September 2024 otherwise be dismissed.
3.The subpoenas for production of documents filed on 17 September 2024 be set aside.
4.Costs be 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 Mansini
IN SUMMARY
This is an application by a Ms Maria Rust, an employee of the Office of the Commissioner for Public Employment (Northern Territory) for some 14 years until her dismissal by reason of serious misconduct.
The applicant alleges that current or former senior executive managers have variously engaged in conduct which gives rise to numerous alleged contraventions of the general protections provisions of the Fair Work Act 2009 (Cth) (Act) for which the respondent is liable.
For the reasons that follow, the interlocutory application for discovery will be allowed in part and, in upholding the objections, the subpoenas for production of documents will be set aside.
CONTEXT
For purposes of this interlocutory judgement, the relevant parties and actors are as follows:
(a)The Commissioner for Public Employment for the Northern Territory is the respondent to the proceedings and at the relevant times was the employer of the applicant;
(b)Ms Maria Rust is the applicant and at the relevant times was a public servant employed to work in the Department of Infrastructure, Planning and Logistics (Department);
(c)Mr Christopher Grumelart was at the relevant times the Executive Director of Capital Program Delivery of the Department;
(d)Mr Kirkman was at the relevant times the Chief Executive Officer of the Department;
(e)Mr McInnes was at the relevant times the General Manager, Housing Program Office of the Department;
(f)Ms Clifford was at the relevant times the Deputy Chief Executive of the Department;
(g)Ms Schaefe-Lee was at the relevant times the Director of Business Improvement, Customers and Culture at the Department;
(h)Ms Dunn was at the relevant times the Senior Director, Public Sector Appeals and Grievance Reviews, for the Office for Public Employment.
The originating statement of claim was filed in October 2022 and amended on 20 December 2022. Among other adverse actions allegedly taken for reasons prohibited by the Act, the applicant claims that the following were adverse actions taken because of her actual or proposed exercise of various workplace rights and/or for discriminatory reasons in contravention of ss.340 and 351 of the Act:
(a)A decision of Mr Kirkman to move or transfer the applicant from the role of Program Manager for the Remote Housing Program which was maintained by Mr McInnes;
(b)Decision(s) to review and cancel previously advertised recruitment for the Program Manager for the Remote Housing Program position (Program Manager position) that the applicant had applied for; and
(c)The commencement of a disciplinary process, suspension of the applicant without pay and termination of her employment.
The applicant alleges these and numerous other adverse actions were taken because of her actual or proposed exercise of workplace rights (including an internal grievance lodged, applications made to the Fair Work Commission to deal with a dispute under the enterprise agreement and to make a stop bullying order, a claim for workers’ compensation and complaint to the Northern Territory Anti-Discrimination Commission) and/or for discriminatory reasons because of her sex.
By their defence, filed 8 March 2023, the respondent admits various adverse actions in respect of the applicant, admits the applicant’s exercise or proposed exercise of various workplace rights, denies a number of alleged adverse actions and workplace rights and denies any adverse action taken in contravention of the Act. Relevant to this interlocutory judgement, the respondent maintains that:
(a)The applicant’s employment was terminated because Ms Rust was found to have engaged in serious misconduct – described in the termination letter as her far reaching and ongoing breaches of discipline involving a lack of transparency and honesty which was considered to undermine the trust and confidence required in the employment relationship; and
(b)Other actions were taken to address the conflict of interest that arose from the applicant’s close personal relationship with her then manager, a Mr Grumelart.
The substantive matter was originally listed for trial before another Judge in October 2024, which dates were not able to proceed, and is now listed for trial before the Court as presently constituted commencing 26 May 2025. In respect of the substantive matter, the applicant has filed the following affidavits:
(a)Affidavit of Maria Rust sworn on 20 May 2024 and accepted for filing on 21 May 2024;
(b)Further affidavit of Maria Rust sworn on 27 August 2024 and accepted for filing on 30 August 2024;
(c)Affidavit of Christophe Grumelart sworn on 17 May 2024 and accepted for filing on 20 May 2024; and
(d)Further affidavit of Christophe Grumelart sworn on 23 August 2024 and accepted for filing on 30 August 2024.
The following affidavits have been filed on behalf of the respondent in respect of the substantive matter:
(a)Affidavit of Christine Osborne, a solicitor on behalf of the respondent, sworn and accepted for filing on 14 December 2022;
(b)Affidavit of Ms Rachel Dunn sworn 8 August 2024 and accepted for filing on 9 August 2024;
(c)Affidavit of Mr Andrew Kirkman sworn 2 August 2024 and accepted for filing on 9 August 2024;
(d)Affidavit of Ms Leah Clifford sworn and accepted for filing on 9 August 2024;
(e)Affidavit of Ms Laura Schaefe-Lee sworn and accepted for filing on 12 August 2024;
(f)Affidavit of Mr Dwayne McInnes sworn and accepted for filing on 13 August 2024.
On 9 September 2024, the applicant filed an interlocutory application for discovery (since revised), seeking discovery of 4 categories of documents (extracted in full, as revised on 31 January 2025, at Annexure A to these reasons) (Discovery Application). In summary, the various categories sought are directed at production of documents referred to in evidence and submissions filed by the respondent, and on which the respondent relies in the proceedings, or otherwise believed to exist because they are of a kind that would ordinarily be created by a public sector entity. The applicant says the documents sought are central to the issues in the proceedings and discovery is essential for her to fairly challenge the respondent’s evidence. The respondent opposes on grounds that there is no sufficient forensic purpose and the application is otherwise oppressive and not in the interests of the administration of justice.
On 13 September 2024, the respondent was granted leave by another Judge of this Court to enter 3 subpoenas and did so. On 27 September 2024, the applicant lodged objections to the 2 subpoenas requiring production of the applicant’s phone records for the period 1 January 2021 to 31 December 2022 and production of Royal Darwin Hospital records for Mr Grumelart in the period 1 January 2021 to 31 August 2021 (Subpoena Objections) and did so before the date for inspection. In summary, the respondent seeks access to the phone and medical records in order to test the credit of the applicant and Mr Grumelart regarding the issue of whether they were in a personal relationship which is an issue the respondent says has infiltrated the entire process. The applicant objects on the basis that the records are not relevant to any fact in issue in these proceedings and otherwise amount to a fishing expedition.
These interlocutory issues were heard on 5 March 2025. The following affidavits were before the Court in relation to the interlocutory issues subject of this judgment:
(a)Affidavit of Charlotte Clark, solicitor for the applicant, sworn on 6 September 2024 and accepted for filing on 9 September 2024;
(b)Affidavit of Shaine Taborada, solicitor for the respondent, sworn and accepted for filing on 12 September 2024;
(c)Further affidavit of Shaine Taborada, sworn and accepted for filing on 13 September 2024;
(d)Further affidavit of Charlotte Clark, sworn on and accepted for filing on 4 October 2024;
(e)Further affidavit of Shaine Taborada, sworn and accepted for filing on 14 February 2025; and
(f)Further affidavit of Shaine Taborada, sworn and accepted for filing on 3 March 2025.
Subsequently on 24 April 2025, whilst the interlocutory judgement was reserved, a further application for amendment of the pleadings was filed and is pending further interlocutory hearing.
THE DISCOVERY APPLICATION
Statutory framework
In the general federal law jurisdiction of this Court, discovery is not allowed unless a Judge declares it appropriate, in the interests of the administration of justice: s.176(2) of the Federal Circuit and Family Court of Australia Act2021 (Cth) (FCFCOA Act) and r.14.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
In deciding whether to make a declaration under s.176(2), the Court or the Judge must have regard to:
(a)whether allowing the 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,
see s.176(3) of the FCFCOA Act.
In Abrahams v Qantas Airways Ltd (No 2) [2007] FMCA 639; (2007) FLR 314 Lucev FM, as he then was at [22], considering the equivalent predecessor to s.176 of the FCFCOA Act, outlined that “other matters” in this context might include that in the following non-exhaustive list: the relevance of any documents sought to be discovered, the volume of documents sought to be discovered; (in a migration context) whether relevant documents have been included in a court book and, if so, the extent; whether discovery would narrow the issues; whether there is consent; whether discovery is of benefit in the litigation in terms of assisting the applicant to fairly make their case; and whether there is evidence of the effect of discovery on (especially vulnerable) litigants.
It is important to bear in mind that the overarching purpose of the civil practice and procedure provisions of this Court is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. That overarching purpose includes the objectives of just determination of all proceedings before this Court, the efficient use of the judicial and administrative resources available, the efficient disposal of this Court’s overall caseload, disposal of all proceedings in a timely manner and resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute: s.190 of the FCFCOA Act.
First category
The first category of documents sought to be discovered relates to the respondent’s decisions to commence a disciplinary process, suspend the applicant without pay, substantiate 6 alleged breaches of discipline and terminate the applicant’s employment. There are 18 sub-categories of documents sought which are directed at the investigation into the applicant’s conduct, the findings derived from which formed the basis of what the respondent now says is the only actuating reason for the applicant’s dismissal from employment.
Prior to hearing of the Discovery Application, the respondent’s solicitor voluntarily produced the following documents covered by category 1(c) and (d) of the revised schedule at Annexure A:
(a)An unredacted copy of a memorandum from Ms Clifford as Deputy Chief Executive to the Chief Executive dated 30 March 2022 which was referred to at [83] of Ms Schaefe-Lee’s affidavit. The memorandum contains recommendations that: the Chief Executive delegate their function to Ms Clifford; Ms Clifford review attached legal advice from Hunt & Hunt and decide if the applicant had potentially committed breach(es) of discipline outlined therein; and, subject to Ms Clifford’s decisions, outlined the recommended process and outcomes.
(b)An unredacted copy of legal advice of Hunt & Hunt which was attached to the memorandum referred to at paragraph (a). That document lists material reviewed in its preparation, described Hunt & Hunt’s understanding of internal processes conducted and external dispute resolution processes commenced by the applicant, referenced initial investigations of the Department which had been identified as possibly in breach of the Northern Territory Public Sector policies and practices and confirmed that advice had been sought “on whether Maria’s conduct is in breach of those policies and practices and, if so, the appropriate course of action” and goes on to outline the issues and advice in relation to a series of allegations including the option to dismiss the applicant from her employment.
(c)An unredacted copy of a memorandum dated 6 May 2022 which was signed by Ms Clifford. That memorandum apparently authorised the applicant’s dismissal.
Where, as here, the applicant has at least made out the basis for a claim that adverse action was taken by reason of her exercise or proposed exercise of workplace right(s), the onus shifts to the respondent to establish on the balance of probabilities that the relevant person(s) did not act for any proscribed reason: s.361 of the Act; see Board of Bendigo Regional Institute of Technical and Further Education v Barclay(No 1) (2012) 248 CLR 500 at 512–513, 524; [2012] HCA 32 at [31]–[33] and [65] (French CJ and Crennan J); RailPro Services Pty Ltd v Flavel (2015) 242 FCR 424 at 447–450; [2015] FCA 504 at [80]–[93] (Perry J).
The balance of undiscovered documents covered by this first category are plainly relevant. However it does not follow that discovery is appropriate, in the interests of the administration of justice. This is particularly the case when regard is had to the operation of the reverse onus. The respondent has made forensic decisions about the presentation of its evidence in seeking to discharge the reverse onus as to the actuating reason(s) for the pleaded adverse actions related to the applicant’s disciplinary process leading to and including the dismissal. It is for the respondent to establish the actuating reasons for those adverse actions, and that those reason(s) did not include a prohibited reason, on the balance of probabilities.
The application for discovery, seeking some 18 sub-categories of documents under cover of what is defined as this first category, was filed after closure of the evidence in the substantive matter. Sought at such a late stage of the proceedings (that is, after closure of evidence in the substantive matter), the discovery request is not sufficiently narrow or targeted as to justify departure from the general rule that discovery not be allowed.
Further, whilst the respondent’s evidence and submissions point to the actual or possible existence of at least some of the documents sought by this first category, the extent of the materials now disclosed sheds apparent light on the respondent’s decision-making process. The applicant has sufficient material and will have a fair opportunity to test the respondent’s evidence about the investigation at trial and submit to the Court what ought be made of any inferences to be drawn or findings to be made in respect of obvious gaps or omissions in the evidence, having regard to the reverse onus.
Having regard to the relevant matters, it is not necessary nor appropriate and would not contribute to the fair and efficacious conduct of the litigation for this first category to be allowed.
Second category
The second category of documents sought to be discovered relates to a disputed matter which the applicant says was a decision by Mr Kirkman to move her from her position taken on 30 July 2021 which was maintained by Mr McInnes on 23 August 2021 (the alleged adverse actions). The respondent says these were not decisions at all and indeed nothing more than preliminary consideration of a solution to manage the conflict of interest which arose from the applicant’s relationship with Mr Grumelart and to address working arrangements moving forward (not adverse action(s)).
The applicant gives evidence of the exchange she had with Mr Kirkman in the critical meeting of 30 July 2021 and annexes an “agreed transcript” of that meeting. The respondent’s witnesses (Mr Kirkman and Mr McInnes) make express denials of any decision to move the applicant to another position and explain in their evidence their respective accounts of how they came to know of and sought to address rumours of a relationship between the applicant and Mr Grumelart and the perceived conflict of interest.
The substance and the genesis of the applicant’s meeting with Mr Kirkman on 30 July 2021 and what if anything was decided about moving the applicant’s position on 23 August 2021 are relevant to matters in issue in the proceedings.
The documents sought by this second category are described broadly by reference to any document in the period 30 July 2021 to 10 September 2021, concerning a proposal to transfer the applicant to a different position and/or location however at (a) and (b) particularised, more specifically, any records of 2 meetings referred to in the respondent’s filed evidence as having taken place on 10 and 11 August 2021. The respondent’s evidence is to the effect that these meetings were to discuss the management of the conflict of interest (attendees cited at particulars (a) and (b)). There is at least one record of the meeting of 11 August 2021 in evidence which is in the form of brief notes taken by Mr McInnes in that meeting.
It is possible that other records of the 11 August 2021 meeting and records of the 10 August 2021 meeting do exist in the form of an email, file note, memorandum or other record and would potentially be persuasive contemporaneous record about whether and if so why a transfer decision was made by the respondent as plead.
Given the relatively narrow and targeted request, volume is not a persuasive factor. That the trial is due to commence in some weeks is a matter weighing against the grant of discovery of this category of documents.
Weighing all of the relevant factors, it is appropriate in the interests of the administration of justice to order discovery of only those documents specified at (a) and (b) of this category 2, with such documents to be produced 3 calendar days prior to commencement of the trial.
Third and fourth categories
The third and fourth categories are related to the applicant’s claims that the Department determined and proceeded to review the position of Program Manager position and, subsequently, determined to cancel recruitment for the position which were adverse actions taken because of the exercise or proposed exercise of the applicant’s workplace rights and/or because of her sex. The respondent admits that all applicants for the role were notified, on 31 January 2022, that recruitment for the position was on hold pending a review of the Department’s organisational structure and is understood to accept that the position was not included in the approved organisational structure arising from a review and to otherwise deny the claims.
There is evidence filed in the substantive matter that goes to dates of significance to the pleadings subject of these categories of discovery, including but not limited to:
(a)Evidence of Ms Schaefe-Lee and Mr McInnes including Ms Schaefe-Lee’s involvement on a recruitment panel for the Program Manager position in and from late 2021, handwritten notes about comments made by a referee of the applicant which called into question her suitability for the role, the selection report regarding the applicant’s (non)selection for the role and the decision to place recruitment for the position on hold;
(b)An email to the applicant dated 31 January 2022, by which she was notified that recruitment for the Program Manager position was on hold until such time as a review was completed and the structure finalised. In that same correspondence, the writer outlined a review of the structure of the Housing Program Office that had been ongoing since machinery of government changes and a further review of administrative reporting and governance functions being undertaken;
(c)A draft organisational structure emailed to Mr Grumelart on 4 November 2021 which the applicant refers to in her evidence and Mr McInnes says in his evidence was not the final structure; and
(d)Mr McInnes and Ms Schaefe-Lee also give evidence about the proposed organisational restructure including the final approved organisational chart of 23 June 2022.
The documents sought by the third and fourth categories respectively cover periods of many months and pre-date the evidence of the critical events and pleaded decisions in each case. That said, at least some of the records sought proximate to the decisions and conduct of the process are likely to be relevant to the question of what motivated or actuated the decision makers in respect of the applicant’s pleaded case.
However, to the extent that the applicant has engaged the reverse onus by at least making out the basis for a claim on her pleadings, as above, it falls to the respondent to discharge that onus on the balance of probabilities.
Further, particularly given the applicant has had knowledge of the decisions to put recruitment on hold and of the reviews that had been and were to be conducted since 31 January 2022 (being the recipient of the 31 January 2022 letter), it was a late stage of the proceedings for the applicant to have made the request for discovery of these documents.
Accordingly, discovery of the third and fourth categories of documents sought are not appropriate, in the interests of the administration of justice.
Conclusion as to the Discovery Application
For the above reasons, having regard to the overarching purpose of the FCFCOA Act, what orders will best facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible and the other matters raised, I am persuaded that:
(a)Discovery of the narrow category of only those documents specified at category 2(a) and (b) is appropriate, in the interests of the administration of justice; and
(b)In respect of categories 1, 3 and 4, there is no basis to depart from the general rule that discovery not be allowed and discovery is not appropriate, in the interests of the administration of justice.
SUBPOENA OBJECTIONS
Statutory framework
The Court or a Registrar of the Court may issue a subpoena for production of documents on application of a party to a proceeding: r.16.01 of the Rules.
Once entered, the issuing party gains a right to inspect the subpoenaed documents, subject to any successful application that the subpoena be set aside or objection to production or inspection: rr.16.08 and 16.13.
The principles applicable to an application to set aside a subpoena are well established and were conveniently summarised by the Full Federal Court in Wong v Sklavos [2014] FCAFC 120 (Jacobson, White and Gleeson JJ) at [12]:
The party issuing a subpoena bears the onus of demonstrating that the subpoena has a legitimate forensic purpose in relation to the issues in the proceedings. A subpoena may be set aside if it requires the production of documents which do not have apparent relevance to the issues arising on the pleadings. Other cases have used different terminology, but with essentially the same effect, for example, by requiring that, viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative, or that the material sought is reasonably likely to add in some way to the relevant evidence in the case, or that it be “on the cards” that the documents sought will materially assist the party at whose request the subpoena has been issued.
(citations omitted).
Some of the grounds for setting aside a subpoena were helpfully restated in Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia [2009] FCA 1203 (Flick J) at [20]:
The various grounds upon which an application may be made to have a subpoena set aside need not be presently canvassed in any great detail. Some of these grounds have been usefully collated by Powell J in Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100 as follows (citations omitted):
Although a reference to the authorities makes it tolerably plain that the court will exercise its undoubted jurisdiction to set aside a subpoena in a variety of cases, as, for example:
1.unless the subpoena was issued for the purpose of a pending trial, hearing or application …
2. where to require the attendance of a witness would be oppressive …
3.where the subpoena had not been issued bona fide for the purpose of obtaining relevant evidence and the witness to whom the subpoena had been addressed was unable to give relevant evidence …
4.where the subpoena has been used for the purpose of obtaining discovery or further discovery against a party …
5.where the subpoena has been used for the purpose of obtaining discovery against a third party …
6.where to require a party to comply with a subpoena to produce documents would be oppressive …
7.where the subpoena has been issued for a purpose which is impermissible, as, for example, “fishing” …
The Court was taken to the Authority in Andrade v Goodyear & Dunlop Tyre (Aust) Pty Limited [2017] FCCA 497 (Andrade) (Barnes J) wherein there was no dispute between the parties that challenge to credit can be a legitimate use of a subpoena: at [21]. In that case, the Court helpfully summarised competing statements of the law and the fishing principle as follows:
[21] The parties were not in dispute that challenging credit can be a legitimate use of a subpoena. In Liristis v Gadelrabb [2009] NSWSC 441, Brereton J observed at [5] that “subpoenas, unlike discovery, may be used to obtain documents relevant only to questions of credit, for the purpose of assisting cross-examination as to credit”. Goodyear referred to the decision of Weinberg J in Fried v National Australia Bank (2000) 175 ALR194; [2000] FCA 911, in which his Honour remarked at [29] that “[i]t is not appropriate, in my view, for a Court to permit a subpoena to stand which does little more than trawl for documents which may be used to impugn the credit of a particular witness.” In considering these remarks, Brereton J found in Liristis (at [5]) that “[t]he concept of “trawling” in this context is the same as that of “fishing.” It is not fishing to seek documents when there are reasonable grounds to think that fish of the relevant type are in the pond”.
[22] In Thomas v SMP (International) (No.2) [2010] NSWSC 870 (cited with approval by Bromberg J inComcare v John Holland Rail Pty Ltd (No.5)111; [2011] FCA 622 at [35]), Pembroke J addressed the apparent difference between the statement of the law inLiristis and Fried as follows (at [20]):
In [Fried], the explanation of the purpose for which the documents were required was “altogether too vague and unsatisfactory to persuade me of its legitimacy”: Fried … at [30]. In [Liristis], there was precision about the category of documents sought and the logical and rational reason why the documents might be probative (on credit) was quite apparent: Liristis … at [7].
[23] A subpoena cannot be used for the purposes of conducting a “fishing” expedition in the sense that documents are sought to discover if the issuing party has a case, rather than to support a case which has been articulated (Liristis at [5]). As pointed out by Stone J in Dorajay at [34], a submission to the effect that paragraphs of a subpoena constitute “fishing”:
… amounts to a submission that the paragraphs have no legitimate forensic purpose because the documents are sought in order to discover if there is a case not to support a case that has already been articulated; Smallat 575.
[24] Relevantly, her Honour continued:
In Bailey v Beagle Management Pty Ltd (2001) 105 FCR 136 at 143, a Full Court of this Court noted that the concept of fishing had undergone ‘substantial rethinking’ in recent years. The Court referred to the comment of the majority of the High Court in Grant v Downs (1976) 135 CLR 674 at 685 to the effect that the public interest requires that in the interests of a fair trial ‘all relevant documentary evidence’ should be available. The Full Court commented at 143:
The applicants’ suggested rule imposes a requirement that, to avoid the stigma of fishing, a party must already be in possession of some evidence, before issuing a notice to produce (or, presumably, any other compulsive interlocutory process). But historically the concept of fishing was not concerned with the prior possession of evidence but rather that there was a prior pleading which raised issues for which the evidence sought by the process would be relevant.
Another relevant consideration will typically be the stage of the proceedings. At an early stage of proceedings, the possibility of apparent relevance would not be approached in a narrow or overly rigid manner: Gloucester Shire Council v Fitch Ratings, Inc [2016] FCA 587 (Wigney J) at [23].
Subpoenas - applicant’s phone records and Mr Grumelart’s medical records
The first subpoena entered seeks production of the applicant’s phone records for the period 1 January 2021 to 31 December 2022. It is directed at 2 separate telephone numbers known to be registered in the applicant’s name, one of which the applicant submitted is used exclusively by the applicant’s husband.
The second subpoena entered seeks production of Mr Grumelart’s medical records held by the Royal Darwin Hospital for the period of 1 January 2021 to 31 August 2021.
Both subpoenas are said to relate to the respondent’s claim that certain actions it took, which the applicant now claims to be adverse actions taken for prohibited reasons, were actuated by its need to act on an actual or perceived conflict of interest on account of a personal relationship between the applicant and Mr Grumelart.
Various of the respondent’s witnesses give evidence of their concerns about an actual or perceived conflict of interest on account of a personal relationship between the applicant and Mr Grumelart, to whom she directly reported at the relevant times. More specifically in relation to the significance of the records subject of the subpoena, Mr Kirkman gives evidence of a telephone discussion with Mr Grumelart’s wife (Mrs Grumelart) on or around 28 July 2021 which, Mr Kirkman says, prompted a meeting on 30 July 2021 with Mr Grumelart in which Mr Kirkman raised his concerns about Mr Grumelart’s close personal relationship with the applicant which was impacting the business and needed to be addressed. That meeting was followed by another meeting that same day between Mr Kirkman and the applicant in which a different role was discussed (as above, a record of which is in evidence in the substantive proceedings).
The applicant and Mr Grumelart (in his affidavit filed in the related proceeding, and who is subpoenaed, without objection, to give evidence in this proceeding) are understood to respectively deny the existence of a personal relationship that presented a conflict of interest in their interactions during employment for the respondent. The applicant, in her reply evidence, admits that she did make a phone call to Mr Grumelart’s wife on 28 July 2021 and deposes that this was to discuss her concern about Mr Grumelart’s recent brain tumor diagnosis and it was not unusual for her to call Mr Grumelart’s wife as they had previously worked closely together and been friends for over a decade.
As above, the substance and genesis of the 30 July 2021 meeting between Mr Kirkman and the applicant are relevant in the substantive proceedings. And, putting to one side for now whether the applicant in fact used both telephone numbers subject of subpoena, it may be accepted that the production of phone records will likely disclose the fact of telephone calls between: the applicant and Mrs Grumelart (about which the applicant has given evidence) and the applicant and Mr Grumelart (at the very least, on account of their working relationship).
However, I am not persuaded of a legitimate forensic purpose to justify production of the applicant’s telephone records over a period of some 18 months (or, indeed, a narrower period) where it is not necessary for the respondent to establish the truth of a personal relationship between the applicant and Mr Grumelart during their employment. Rather, it is for the respondent in discharging the reverse onus to establish what the decision makers believed and what motivated their decision making at the relevant times.
The contention that the production of phone records would illuminate matters of credit in respect of the evidence of the applicant and Mr Grumelart is tenuous in circumstances where the applicant has given evidence about the fact of her conversation with Mrs Grumelart on 28 July 2021 and other conversations between them and the telephone records will shed no light on the substance of any telephone discussions. Ultimately, I am not persuaded that the material sought is reasonably likely to add to the relevant evidence in the case, or that it be “on the cards” that the documents sought will materially assist the respondent. Even if the applicant has been found to be dishonest in respect of her relationship with Mr Grumelart, once again the real question here is what motivated the respondent’s actions.
Similarly the production of the medical records to establish the timing of Mr Grumelart’s brain tumour diagnosis, a matter introduced by the applicant’s reply evidence but not by pleading, does not appear to have a legitimate forensic purpose.
The records sought to be produced cover an extensive period of some 8 months including a period of one month after what is said to be the relevant event, the telephone discussion between the applicant and Mrs Grumelart, on 28 July 2021. A medical record confirming the date of diagnosis might go to discredit the applicant’s reference to recency but will not probatively establish whether the two women discussed the brain tumour diagnosis on 28 July 2021 or perhaps also other matters.
Conclusion as to the Subpoena Objections
For the above reasons, I am of the view that there is no legitimate forensic purpose to the subpoenas for production of documents.
RESOLUTION
For the above reasons, I will order that the Discovery Application be allowed in part, such that the Respondent is to discover only those documents specified at category 2(a) and (b) and the Subpoena Objections upheld, such that the subpoenas for production of documents be set aside.
The question of what (if any) costs of the Discovery Application and Subpoena Objections be ordered will be reserved and, if sought, be determined with regard to s.570 of the Act.
I certify that the preceding fifty-seven (57) numbered paragraphs is a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 7 May 2025
ANNEXURE A
(1)For the period 1 October 2021 to 28 June 2022, any document1, including any email, file note, memorandum or other record concerning:
(a)the investigation into Ms Rust’s conduct including:
(i)any email, message or other communication to, from, between, or copied to Ms Schaefe-Lee concerning any investigation into Ms Rust;
(ii)the request that was issued to Ms Schaefe-Lee to “source information based on the allegations made by Ms Maria Rust” (Ms Schaefe-Lee’s witness statement in the HDA dispute application - p 200 of the bundle to the Schaefe-Lee Affidavit);
(iii)the information Ms Schaefe-Lee obtained and the forwarding or subsequent dissemination of the evidence obtained by Ms Schaefe-Lee;
(iv)the request issued to Mr McInnes for “dates and locations and persons/attendees that have been held offsite since Maria has been working from home” that Mr McInnes refers to in his email excerpted at [130] of the Rust Affidavit;
(v)the request issued to Ms Schaefe-Lee to conduct a leave audit referred to at [34] and [69] of the Schaefe-Lee Affidavit;
(vi)any preliminary assessment of the suspected breaches/potential fraud as required by clause 9.2 of the NTPS Discipline Handbook;
(vii)any communication between Ms Schaefe-Lee and other employees regarding “the circumstances around Chris and Maria’s conflict of interest” referred to at [33] of the Schaefe-Lee Affidavit;
(viii)the request and/or approval for Ms Schaefe-Lee to prepare the 10 February 2022 memorandum referred to at [74] of the Schaefe-Lee Affidavit;
(ix)Tegan Berg’s delegation (from the Chief Executive Officer of DIPL) to approve the ICT investigation into Ms Rust as required by Rule 2 of the Information and communications technology misuse investigation procedure (p 1773 of the bundle to the Schaefe-Lee Affidavit);
(x)file notes from the conversation between Ms Schaefe-Lee and Mr McInnes referred to at [77] of the Schaefe-Lee Affidavit;
(xi)the report from the Executive and Governance unit concerning Ms Rust’s conduct as a Public Sector employee referred to in Ms Clifford’s letter of 6 April 2022 to Ms Rust;
(xii)any file notes or emails concerning Ms Schaefe-Lee and Ms Clifford’s meeting on or around 3 April 2022 referred to at [84] of the Schaefe-Lee Affidavit;
(xiii)the (unredacted) memorandum Leah Clifford signed on or around 5 April 2022 referred to at [85] of the Schaefe-Lee Affidavit;
(b)the anonymous verbal and written complaint Mr McInnes received which is referred to at [77] of the Schaefe-Lee Affidavit including a copy of the original letter in native format, the envelope, covering email or any other document which evidences the provenance of the anonymous letter, and any correspondence that refers to the anonymous letter or discusses its author;
(c)the (unredacted) memorandum Ms Clifford signed on 11 May 2022 referred at [89] of the Schaefe-Lee Affidavit;
(d)the decision to suspend Ms Rust without pay;
(e)the decision to cease payment of Ms Rust’s HDA effective 16 February 2022 referred to at [205] and [207] of the Rust Affidavit.
(f)The termination or possible termination of Maria Rust’s employment including a copy of the termination letter and Termination Quote in native format.
(2)For the period 30 July 2021 to 10 September 2021, any document, include any email file note, memorandum or other record concerning the decision and/or proposal to transfer Ms Rust to a different position and/or location including:
(a)any record of the 10 August 2021 meeting between Dwayne McInnes, Collette Thorne and Christophe Grumelart referred to at [61]-[65] of the McInnes Affidavit;
(b)any record of the 11 August 2021 meeting between Dwyane McInnes, Collette Thorne, Ms Rust and Lucio Matarazzo referred to at [66]-[74] of the McInnes Affidavit.
(3)For the period 30 September 2021 to 31 January 2022, any document, including any email, file note, memorandum or other record concerning Ms Rust’s application to the Program Manager Housing Program Office position (the Position) on or around 30 September 2021 including:
(a)any memo or other documents provided to Vikki Telfer for the purpose of informing her letter to Ms Rust dated 1 December 2021 referred to at [174] of the Rust Affidavit;
(b)any documents within TRM file s59/2021/78 that concern Ms Rust and the audit log for this folder (TRM reference for Ms Telfers letter of 1 December 2021);
(c)any file notes or other documentary evidence of the panel meeting on 16 December 2021 referred to at [30] of the Schaefe-Lee Affidavit;
(d)the advice Ms Schaefe-Lee received that the Program Manager recruitment process needed to be put on hold pending Maria’s second vaccination referred to at [29] of the Schaefe-Lee Affidavit;
(e)any communication between the panel chair Jenny Henwood and/or Mr McInnes and/or Ms Clifford and/or human resources regarding recruitment to the Position;
(f)any documents recording the decision to place recruitment to the Position on hold including notification to the panel chair and e-recruit screenshot referred to at [195] of the Rust Affidavit and [40]-[43] of the Schaefe-Lee Affidavit.
(4)For the period 17 May 2021 to 28 June 2022, any document, including any email, file note, memorandum or other record concerning:
(a)the restructure of the Housing and Infrastructure – Delivery team referred to at [45]-[49] and [148] of the McInnes Affidavit and [37]-[38] and [44] of the Schaefe-Lee Affidavit; and
(b)documents evidencing whether the restructure took effect and was maintained.
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