Saje v Union for Progressive Judaism Inc
[2019] FCCA 847
•2 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SAJE v UNION FOR PROGRESSIVE JUDAISM INC & ORS | [2019] FCCA 847 |
| Catchwords: HUMAN RIGHTS – Application alleging unlawful sex discrimination and victimisation. PRACTICE AND PROCEDURE – Production or provision of a document referred to in an affidavit. WORDS AND PHRASES – “document” – “refers to”. |
| Legislation: Australian Human Rights Commission Act 1986 (Cth), ss.46PH, 46PO |
| Cases cited: Abrahams v Qantas Airways Ltd (No 2) [2007] FMCA 639; (2007) 210 FLR 314 Oldham v Capgemini Australia Pty Ltd [2015] FCA 1149; (2015) 241 FCR 397 Oztech Pty Ltd v Public Trustee of Queensland(No 10) [2016] FCA 970 Reynolds v JP Morgan Administrative Services Australia Ltd & Anor (No 2) [2011] FCA 489; (2011) 193 FCR 507; (2011) 280 ALR 612 |
| Applicant: | LEENA SAJE |
| First Respondent: | UNION FOR PROGRESSIVE JUDAISM INC |
| Second Respondent: | JOEL MENDELSON |
| Third Respondent: | STEPHEN FREEMAN |
| Fourth Respondent: | JOCELYN ROBUCK |
| Fifth Respondent: | STEVE DENENBERG |
| Sixth Respondent: | ROGER MENDELSON |
| File Number: | PEG 715 of 2017 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 12 March 2018 |
| Date of Last Submission: | 12 March 2018 |
| Delivered at: | Perth |
| Delivered on: | 2 May 2019 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondents: | Mr R Humphreys and Mr V Atchamah |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
Pursuant to r.16.05(2)(e) of the Federal Circuit Court Rules 2001 (Cth) Order 1 of the Court’s orders made on 2 February 2018 be amended to read as follows:
1.The applicant is to provide to the respondents any documents referred to in the applicant’s affidavit sworn 20 December 2017 by 9 February 2018.
Time for compliance with Order 1 of the Court’s order of 2 February 2018 (as amended by Order 1 of these orders) be extended to 2 June 2019.
The document titled “Complaint against Union for Progressive Judaism Australia and the following members of its executive committee: Joel Mendelson, Stephen Freeman, Joselyn Roebuck, Steve Denenberg and Roger Mendelson”, including all appendices thereto, lodged with the Perth Registry of this Court at 1.24.20pm on 21 December 2017 be marked as an “Additional Document” and be uploaded to and filed under the “Filed Documents” folder in the electronic court file for these proceedings.
The applicant is to produce to the respondents an un-redacted copy of the letter to the applicant from the Australian Human Rights Commission, signed by Ms Rachel Holt as delegate for the President of the Australian Human Rights Commission, and dated 1 December 2017, and referred to in the applicant’s affidavit affirmed on 7 February 2018, by 2 June 2019.
The applicant is to serve on the Respondents a copy of the Transcript of proceedings on 4 May 2017 in the Supreme Court of Western Australia in matter number CIV1340/2017 by 2 June 2019.
The applicant is to serve on the Respondents a copy of the State Administrative Tribunal’s orders of 9 June 2017 in matter number EOA2/2017 by 2 June 2019.
Other than as prescribed by these orders, no further applications or documents of any kind are:
(a)to be filed by either party; or
(b)to be accepted for filing by any Registry of this Court,
until further order of this Court.
The proceedings (including the Application in a Case filed by the applicant on 4 March 2018), be adjourned to 3.00pm on 28 June 2019 for further directions.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 715 of 2017
| LEENA SAJE |
Applicant
And
| UNION FOR PROGRESSIVE JUDAISM INC |
First Respondent
| JOEL MENDELSON |
Second Respondent
| STEPHEN FREEMAN |
Third Respondent
| JOCELYN ROBUCK |
Fourth Respondent
| STEVE DENENBERG |
Fifth Respondent
| ROGER MENDELSON |
Sixth Respondent
REASONS FOR JUDGMENT
Introduction
An application alleging unlawful sex discrimination under the Sex Discrimination Act 1984 (Cth) (“SD Act”) was filed in this Court on 21 December 2017 (“Application”) by the applicant, Ms Leena Saje (“Ms Saje”). The Application is brought in this Court pursuant to s.46PO(1) of the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”), consequent upon the giving by the President of the Australian Human Rights Commission (“AHRC”) of a notice under s.46PH(2) of the AHRC Act to Ms Saje terminating a complaint made by Ms Saje to the AHRC (“AHRC Notice” and “AHRC Complaint” respectively). Further details of the AHRC Notice and the AHRC Complaint are referred to below, where necessary. The first respondent, the Union for Progressive Judaism Inc will be referred to as “UPJ”, the second to sixth respondents will be referred to by their surnames where, and if, necessary, and collectively the respondents will be referred to as the “Respondents”.
The issue before the Court pertains to the alleged non-compliance by Ms Saje with an order of the Court for production of documents referred to in an affidavit. It should be noted at the outset that there appears to be a hostile relationship between Ms Saje and the Respondents. One consequence of that hostility is that the history of the matter before the Court requires setting out in some detail.
Litigation history
The Application was filed by Ms Saje on 21 December 2017. Accompanying the Application was an affidavit of Ms Saje affirmed 20 December 2017 (“First Saje Affidavit”).
On 27 December 2017 Ms Saje filed a further affidavit affirmed by her which complains about a letter received from the Respondents’ lawyers (“Second Saje Affidavit”). For present purposes nothing turns on the Second Saje Affidavit.
The Respondents filed a response on 25 January 2018 opposing the Application and the claims made therein.
At the first court date on 2 February 2018 the Court made an order (“2 February 2018 Order”) that:
1. The applicant is to provide to the Respondent any documents referred to in any affidavits filed by the applicant with the Court by 9 February 2018.
The intention behind the 2 February 2018 Order was to have Ms Saje produce to the Respondents the documents referred to in the First Saje Affidavit. The 2 February 2018 Order required Ms Saje to provide any documents “referred to” in “any affidavit” by 9 February 2018. The Court accepts there is ambiguity in the 2 February 2018 Order in referring to “any affidavit” and therefore proposes to amend order 1 of the 2 February 2018 Order pursuant to r.16.05(2)(e) of the FCC Rules so that it reads (emphasis added):
1. The applicant is to provide to the Respondents any documents referred to in the applicant’s affidavit sworn 20 December 2017 by 9 February 2018.
This amendment reflects the actual intention of the Court when making the 2 February 2018 Order.
The 2 February 2018 Order seemingly caused Ms Saje to file an affidavit affirmed on 7 February 2018 (“Third Saje Affidavit”) in the following terms:
1. Pursuant to the order of Judge Lucev, order of 02/02/2018, I am providing the following documents, or related sections of documents:
2. Applicant’s document “Correction of Errors, False Claims and Omissions in the Letter of AHRC Delegate Ms Rachel Holt”. A copy of it is annexed hereto and marked as Annexure A1, 2 and 3.
3. A copy of the applicant’s letter of 23 August 2017 is annexed hereto and marked as Annexure B1 and 2.
4. A copy of Ms Holt’s letter is annexed hereto and marked as Annexure C1-C9.
5. A copy of the decision of Deputy President Judge Sharp is annexed hereto and marked as Annexure D. Unrelated information has been redacted.
6. A copy of relevant pages of the hearing before Justice Chaney in the Supreme Court on 04/05/2017 is annexed hereto and marked as E1 and E2.
7. A copy of the Police Report of 24/10/2015 is annexed hereto and is marked F1, 2 and 3.
By letter sent to Ms Saje dated 13 February 2018 (“February 2018 Letter”) the Respondents alleged that Ms Saje had not complied with the 2 February 2018 Order, and that the documents provided under cover of the Third Saje Affidavit were “a limited” subset of those requested in the Respondents’ solicitors’ letter to Ms Saje dated 30 January 2018 (“January 2018 Letter”), and that some of the documents were redacted. It is significant, given what follows, that the Respondents’ focus was on the documents requested in the January 2018 Letter, rather than the documents which were ordered to be provided in the 2 February 2018 Order. Both the January and February 2018 Letters were exhibited to the affidavit of Vishan Kakara Atchamah affirmed 21 February 2018. In that regard attached to the February 2018 Letter and under headings which included “AHRC documents”, “Complaint documents”, “Police incident report”, “NSW Legal Services Commissioner”, “Professional Standards Committee of the Law Society of NSW”, “Supreme Court proceedings” and “State Administrative Tribunal proceedings” was a list of twenty documents or categories of documents said to be referred to in the First Saje Affidavit and which the Respondents said they required to be produced “un-redacted” in accordance with the 2 February 2018 Order.
In response to receipt of the February 2018 Letter, Ms Saje on the same date (13 February 2018) wrote a letter addressed directly to the presiding Judge, which is obviously inappropriate, but which apparently indicated that, in Ms Saje’s view, she had complied with the 2 February 2018 Order.
A directions hearing was convened on 22 February 2018 to deal with the dispute which had arisen with respect to the 2 February 2018 Order, at which the Court made orders in the following terms:
1. The parties are to meet and confer within seven days with respect to the applicant’s alleged non-compliance with order 1 of the Court’s orders dated 2 February 2018.
2. The directions hearing be adjourned to 11.30am on 2 March 2018.
3. Orders 3-7 of the Court’s Orders dated 2 February 2018 be set aside.
4. Costs be reserved.
(“22 February 2018 Order”).
It would appear that the parties conferred in accordance with order 1 of the 22 February 2018 Order, but that little progress was made.
Ms Saje filed a further affidavit on 27 February 2018 (“Fourth Saje Affidavit”) which contained some factual content. Otherwise, the Fourth Saje Affidavit sets out Ms Saje’s position, argues her case, and makes submissions, none of which are appropriate in an affidavit. That said, the Fourth Saje Affidavit highlights that little progress had been made on the issue of the production of documents and that relations between Ms Saje and the Respondents remained acrimonious.
A further directions hearing was held on 2 March 2018 as part of a large general directions list on that day, and given the matters which were sought to be raised by the parties, the Court adjourned the matter to 12 March 2018 for both directions and mention (“Hearing”).
On 4 March 2018 Ms Saje filed an application in a case which appears to seek that the Respondents go on affidavit as to, or produce, documents in their possession (“Saje March 2018 Application in a Case”). On 8 March 2018 Ms Saje filed an affidavit (“Fifth Saje Affidavit”) annexing a letter of 8 March 2018 (“March 2018 Letter”) from the Respondents’ solicitors which attached a minute of proposed orders for the purposes of the Hearing. The March 2018 Letter invited Ms Saje to withdraw the Fourth Saje Affidavit and suggested that costs (including indemnity costs) might be sought if she did not. The minute of proposed orders was in respect of the production of documents and a proposed referral for pro bono legal assistance for Ms Saje.
The issue before the Court for the purposes of Hearing was whether or not there had been compliance with order 1 of the 2 February 2018 Order. That involves a single issue limited to whether certain documents were referred to in the First Saje Affidavit. Save where otherwise indicated, it is that issue with which the remainder of these Reasons for Judgment deals. As indicated to the parties at Hearing the Court has found it necessary, by reason of parties’ attitudes toward one another and their conduct of the litigation, to resolve this issue by the production of written Reasons for Judgment, so that there can hopefully be no doubt as to which documents are to be provided in accordance with order 1 of the 2 February 2018 Order, or as otherwise indicated.
Law and principles
Before addressing the issue of what documents are required to be produced, it is necessary to refer to the applicable law and principles. The Respondents have asserted the right to request the provision of documents referred to in the First Saje Affidavit pursuant to r.14.10 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) which is as follows:
14.10 Documents referred to in document or affidavit
(1) If a document or affidavit filed by a party refers to another document, another party may request the party in writing for a copy of the document or to produce it for inspection.
(2) The party requested to provide a copy of, or produce, a document must, within 4 days of the request, in writing to the party making the request:
(a) provide a copy of the document or appoint a time within 7 days, and a place where, it may be inspected; or
(b) claim that the document is privileged from production and state the grounds; or
(c) state that the document is not in his or her possession, custody or power and state his or her knowledge, information or belief about its whereabouts.
What the Court is not doing is determining an application for discovery. The Court is prohibited, under s.45 of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”), from allowing discovery unless the Court declares it is necessary in the interests of the administration of justice for such an order to be made: Abrahams v Qantas Airways Ltd (No 2) [2007] FMCA 639; (2007) 210 FLR 314 (“Abrahams (No 2)”) at [25] per Lucev FM. An application for general discovery would need to be made separately, and to meet the requirements of s.45 of the FCCA Act: see Abrahams (No 2) at [25] per Lucev FM and Hartnett Legal Services Pty Ltd v Ballantyne [2016] FCA 1116 (“Hartnett Legal Services”). In Hartnett Legal Services at [33] per Rangiah J the Federal Court said that to interpret s.45 of the FCCA Act as permitting general or traditional discovery would be inconsistent with its terms which prohibit general or traditional discovery.
A definition of “document” is not contained in the FCC Act or the FCC Rules. Rule 1.05(2) of the FCC Rules states that where the FCC Rules are deemed insufficient or inappropriate, the Court may have regard to the Federal Court Rules 2011 (Cth) (“FC Rules”). Schedule 1 of the FC Rules defines “document” as follows:
Document includes:
(a) any record of information mentioned in the definition of document in Part 1 of the Dictionary to the Evidence Act 1995; and
(b) any other material, data or information stored or recorded by mechanical or electronic means.
The Evidence Act 1995 (Cth) defines “document” in Pt.1 of the Dictionary as:
“document” means any record of information, and includes:
(a) anything on which there is writing; or
(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or
(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or
(d) a map, plan, drawing or photograph.
The above definitions of “document” are inclusive rather than exclusive, while the use of the word “any” to preface the phrase “record of information” in both definitions indicates that the broadest possible range of documents constituting a record of information were intended to be covered by the definitions, “any” being a word of wide import, and one which “ordinarily excludes limitation or qualification and … should be given as wide a construction as possible”: The Victorian Chamber of Manufactures & Ors v The Commonwealth & Ors (1943) 67 CLR 335; [1943] ALR 287; (1943) 17 ALJ 188, CLR at 346 per Williams J; Collins v Repatriation Commission (1980) 48 FLR 198; (1980) 32 ALR 581, FLR at 213 per Fisher J.
Consideration by Australian federal and state courts of rules of those courts similar in substance to r.14.10 of the FCC Rules would appear to have established the following principles applicable in this case:
a)the documents referred to need not be individually identified or described, it is sufficient that they are referred to generally or compendiously: Smith v Harris (1883) 48 LT 869 (“Smith”); King v GIO Australia Holdings Ltd [2001] FCA 1487 (“King”) at [12]-[17] per Moore J;
b)an inference that a document exists is not sufficient because a document, the existence of which it is necessary to imply from a consideration of the text of an affidavit, is not a document referred to in the affidavit: King at [17] per Moore J; Faulkner v Tidewater Marine Australia Pty Ltd (No 3) [2016] FCCA 2918 (“Faulkner (No 3)”) at [33] per Judge Lucev;
c)the question is whether or not the affidavit actually and directly refers to the document sought, or is adequately specific such that one can say that there is a document referred to: Selth v Australasian Barrister Chambers Pty Limited (No 2) [2016] FCA 46 at [16] per Greenwood J;
d)the policy of the rule is directed at ensuring that a person against whom an affidavit is used is entitled to produce or sight primary evidentiary material referred to and relied upon in order to verify the truth of statements and verify the existence and content of the document: Beneficial Finance Corp Ltd v Price Waterhouse (1996) 68 SASR 19; (1996) 189 LSJS 364 (“Beneficial Finance”), SASR at 49 per Lander J; Century Drilling Ltd v Gerling Australia Insurance Co Pty Ltd [2004] QSC 120; [2004] 2 Qd R 481; (2004) 13 ANZ Insurance Cases 61-608 (“Gerling”);
e)a qualification is that where a document is exhibited to an affidavit, and that refers to another document, the latter mentioned document is not subject to production: ACN 007 528 207 Pty Ltd (in liq) v Bird Cameron [2002] SASC 144 at [7] per Judge Burley (“Bird Cameron”);
f)production should not be set aside on the ground that the party seeking the document is already in possession of the document and therefore production would be futile or oppressive as there may nevertheless be a “forensic benefit” in being able to review the document: Betfair Pty Ltd v Racing New South Wales (No 2) [2009] FCA 195 (“Betfair”) at [16] per Perram J; and
g)subject to the effect of any specific rule or rules: see, for example, the discussion of r.14.10(2) of the FCC Rules in Faulkner (No 3) at [34] per Judge Lucev set out at [23] below, a court has control over its own processes and can set aside the request or excuse a party from compliance with the request for reasons including, but not necessarily limited to, it being oppressive or that the content is not seemingly relevant: Oztech Pty Ltd v Public Trustee of Queensland(No 10) [2016] FCA 970 (“Oztech”) at [43] per Yates J, and see r.1.06(1) of the FCC Rules which provides that the Court may, in the interests of justice, dispense with compliance with the FCC Rules.
In relation to r.14.10 of the FCC Rules the Court made the following observations in Faulkner (No 3) at [30]-[34] per Judge Lucev:
30. It is convenient to begin with a discussion of r.14.10(1) of the FCC Rules. Like the former Federal Court rule, O.15 r.10(1) of the Federal Court Rules 1976 (Cth) it refers to an affidavit which “refers” to another document.
31. For relevant purposes “refer” means:
To send or direct (a person) to a person, a book or its author for information
The Shorter Oxford English Dictionary on Historical Principles (Oxford: Clarendon Press, 1973) page 1776.
32. In Flick, Federal Court Practice (accessed online at at FCR 20.31.60 the learned author observes as follows:
… [the learned author refers to King, citing Smith, and Betfair].
33. The Court agrees with the thrust of submissions made by Tidewater that the requirement in r.14.10(1) of the FCC Rules for a document to be referred to requires that document to be, at the very least, mentioned in the relevant affidavit. A document the existence of which it is necessary to imply from a consideration of the text of an affidavit is not a document referred to in the affidavit.
34. Because of the use of the word “must” in r.14.10(2) of the FCC Rules where, as here, the request has been made to provide a copy of or produce the document referred to in one of the categories of document referred to in an affidavit referred to in the application in a case, as set out above, then it is mandatory for a copy of that document to be provided to the party requesting it, or for it to be produced for inspection as requested. This is because the use of “must” ordinarily imports a mandatory requirement: Pitrau v Barrick Mining Services Pty Ltd [2012] FMCA 186; (2012) 259 FLR 447; (2012) 219 IR 208; (2012) 64 AILR 101-563 at [23]-28] per Lucev FM (“Pitrau”), and the High Court, Full Court of the Federal Court, South Australian Supreme Court and Federal Magistrates Court of Australia cases there referred to, save where, in respect of Court Rules, compliance may be dispensed with: Burrell v Reavill Farm Pty Ltd & Ors [2014] FCCA 1449; (2014) 286 FLR 310. …
In Dubai Bank Ltd v Galadari (No 2) [1990] 1 WLR 731 (“Dubai Bank”) at 739 per Slade and Mann LJJ and Sir David Croom-Johnson the English Court of Appeal was dealing with the equivalent English rule (wherein the relevant phrase is “reference is made to any document”) and stated that (the emphasis below is in the original judgment):
... To our minds, the phrase imports the making of a direct allusion to a document or documents. If the plaintiff were correct in its broad submission, this would oblige the court to enter into a process of inference and conjecture in order to determine whether the document or class of documents in question ever existed; and indeed, the judge did so in the present case. We cannot think that this was what the makers of the rule had in mind.
In Australian Competition and Consumer Commission v Australialink Pty Ltd [2009] FCA 265; (2009) 177 FCR 35 (“Australialink”) the Federal Court was considering a notice to produce “complaints” that had been referred to in an affidavit. The Federal Court observed in Australialink at [20]-[21] per Spender J that:
20. The observations by Moore J in King from [12] to [17], set out above, make it plain that there has to be a direct allusion to a document or documents. It is insufficient to refer to a transaction or information, even though it appears almost certain that the transaction must have been effected by, or the information contained in, a document.
21. The word “complaints” can easily comprehend both oral or written complaints. The word “complaints” thus cannot be said to be a reference to a document, even though there may be strong grounds for thinking that some or other of the complaints would have been in writing.
The above principles apply to the Court’s determination of whether the First Saje Affidavit, or other documents filed and referred to by the Court below, “refers to” a “document”, and whether Ms Saje is therefore required to produce a particular document.
Consideration
By the time of the Hearing the number of categories of documents in respect of which production was sought had been reduced from 20 to 18, and the Court refers to each of these as Category 1 to 18 respectively in the Reasons for Judgment which follow.
Before dealing with Categories 1 to 18 it is necessary to deal with Ms Saje’s submission that the 2 February 2018 Order did not expressly state that the documents were to be produced “un-redacted”. In Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 4) [2010] FCA 863 at [98] per Logan J the Federal Court held that “… a whole document should be produced unless there is some prior agreement to the contrary from the opposing party or some prior dispensation from the Court”. In Gray v Associated Book Publishers (Aust) Pty Ltd [2002] FCA 1045 the Federal Court held that there was no positive right to withhold from production or inspection portions of documents on the grounds of confidentiality or irrelevance. There was no dispensation from the whole of each document being produced in the 2 February 2018 Order, and Ms Saje’s submission that she is entitled to produce redacted copies because the 2 February 2018 Order does not specify that the documents are to be produced un-redacted is wrong. It follows that the Order to provide documents in the 2 February 2018 Order was, and remains, an Order to provide un-redacted documents.
Category 1
The documents sought by the Respondents in Category 1 are:
The notice of termination dated 1 December 2017 issued by the Australian Human Rights Commission (AHRC) (Notice), including an attachment A.
said to be referred to at [149] of the First Saje Affidavit.
At [149] of the First Saje Affidavit Ms Saje says:
Ms Holt made no mention of Jocelyn Roebuck [Robuck], Steve Denenberg or Roger Mendelson in her assessment.
The First Saje Affidavit at [149] does not:
a)refer at all to the AHRC Notice; or
b)directly allude to an Attachment A,
while the “assessment” referred to at [149] of the First Saje Affidavit is not one which is identified with any precision, if at all, in the First Saje Affidavit. At [14] and [15] of the First Saje Affidavit there is a reference to Ms Holt, as delegate to the President of the AHRC terminating the AHRC Complaint “as misconceived”: First Saje Affidavit at [15]. Under the heading “Victimisation” at [113]-[118] of the First Saje Affidavit it is alleged that Ms Saje complained about unlawful victimisation. Ms Saje asserts that Ms Holt failed to see any connection between Mr Freeman, the third respondent, “leaking the complaints for a defamation action and the complaint contents, despite the fact that the defamation claim was based on the contents of the complaints”: First Saje Affidavit at [115]. Ms Saje notes that Ms Holt went on to fail to see any detriment to Ms Saje in the leaking of the complaints for legal action against her, and notes that Ms Holt made a finding that the unlawful victimisation referred to in the AHRC Complaint was “misconceived and lacking in substance”: First Saje Affidavit at [116]-[117]. Ms Saje then asserts that Ms Holt’s “opinion” contradicts the opinion or finding of four named “legal authorities”: First Saje Affidavit at [118]. At [139] of the First Saje Affidavit in relation to what would appear to be a complaint lodged by Ms Saje with the New South Wales Legal Services Commissioner (“NSW Legal Services Commissioner”), Ms Saje says that Ms Holt failed to see any connection between the actions of Mr Mendelson, the sixth respondent, arranging funding of a defamation claim and the “content matter of the defamation action”, the defamation action being alleged to be based on the contents of complaints alleging unlawful sexual harassment by a rabbi: First Saje Affidavit at [140].
The First Saje Affidavit does not refer to the AHRC Notice in express terms. It is otherwise not apparent from the First Saje Affidavit that the “assessment” or “opinion” or “finding” of Ms Holt is the AHRC Notice. An assessment or opinion or finding need not be in a document in any event, and like the reference to “complaints” in Australialink at [21] per Spender J, an assessment, opinion or finding need not be conveyed in a document. Whilst there can be no doubt that the AHRC Notice would be a document, it being a notice required to be given in writing to a person who has lodged a complaint with the AHRC: AHRC Act, s.46PH(2), there is nothing in the First Saje Affidavit to indicate that Ms Holt’s “assessment” or “opinion” or “finding” referred to in the First Saje Affidavit is in fact the AHRC Notice. Further, the setting out of factual material in the First Saje Affidavit is sufficiently deficient that the Court cannot confidently infer that any “assessment” or “opinion” or “finding” referred to is the AHRC Notice.
At Hearing Ms Saje asserted in submissions that the “[a]ssessment” would be the letter by delegate Ms Holt and that that letter has been provided in its entirety to the Respondents as well as to the Court …”: Transcript, page 7. It therefore appears that what was intended to be referred to by the use of the word “assessment” was a letter from Ms Holt to Ms Saje.
It is necessary to say something about the nature of an application to this Court under the AHRC Act. Under the AHRC Act a person may apply to this Court in relation to contravention of various Commonwealth human rights legislation after the termination of a complaint by that person by the President of the AHRC: AHRC Act, s.46PO(1). Under r.41.02A of the FCC Rules such an application “must be in accordance with the approved form”. The approved form headed “APPLICATION – Human Rights” contains a “Part F – Required documents”, and reads as follows:
Part F – Required documents
15. These documents must accompany your application and claim
X A copy of your original complaint to the Australian Human Rights Commission (if available).
X The notice of termination of complaint given by the President of the Australian Human Rights Commission
In this case, Ms Saje indicated by marking each of the boxes at Item 15 under Part F of the approved form that a copy of the AHRC Complaint and the AHRC Notice were attached to the Application.
The Court notes that it would appear that the AHRC’s reasons for the decision (“AHRC Reasons for Decision”) to issue the AHRC Notice and terminate the AHRC Complaint were not provided with the AHRC Notice filed with the Application. The AHRC Reasons for Decision resulting in the issuance of the AHRC Notice appear to have been annexed to the AHRC Notice as attachment A by the AHRC, and a copy of the AHRC Complaint appears to have been annexed to the AHRC Notice as attachment B. In the Application as filed by Ms Saje the AHRC Notice is attached, but the reference by the AHRC to the AHRC Reasons for Decision being attached as attachment A has been ruled through and annotated with the handwritten words “NOT REQUIRED BY FEDERAL CIRCUIT COURT RULES”, and consequently the AHRC Reasons for Decision were not filed with the AHRC Notice. The position with the AHRC Complaint is somewhat different and requires some explanation.
The:
a)Application;
b)First Saje Affidavit; and
c)AHRC Notice (annotated as an “Additional Document”),
were all lodged, electronically, on 21 December 2017 at 1.24pm on the electronic court file (“ECF”) and uploaded as “Filed Documents” on the ECF.
At Hearing Ms Saje asserted that she had also “filed” the AHRC Complaint at the same time as the Application, the First Saje Affidavit and the AHRC Notice: Transcript at page 17. The AHRC Complaint does not, however, appear as a filed document on the ECF. As indicated at the Hearing by Ms Saje she did electronically lodge the AHRC Complaint at 1.14pm on 21 December 2017, but, for reasons which are not apparent, the Perth Registry uploaded the AHRC Complaint and its Appendices on the ECF to the “Correspondence” folder and the AHRC Complaint only to the “File History” folder, but did not, as it did with the AHRC Notice, upload the AHRC Complaint and its Appendices as an “Additional Document” in the “Documents Filed” folder. Because the AHRC Complaint is a document that must accompany the Application, putting the AHRC Complaint only in those other folders is plainly an error, which must be rectified (see further at [55]-[61] below). There will therefore be an order that the document titled “COMPLAINT Against Union for Progressive Judaism Australia And the following members of its executive committee: Joel Mendelson, Stephen Freeman, Jocelyn Roebuck, Steve Denenberg and Roger Mendelson By Leena Saje” (and including the Appendices thereto), and received by the Perth Registry of the Court at 1.24.20pm on 21 December 2017 be filed under the “Filed Documents” section of the ECF for this matter (PEG715/2017), and be marked as an “Additional Document”.
At Hearing it emerged that a redacted copy of a document, being a document marked as Annexure C1-C9, and being a letter dated 1 December 2017 from the AHRC to Ms Saje signed by Ms Holt advising Ms Saje of the termination of the AHRC Complaint and attached to which was a copy of the AHRC Reasons for Decision, had been filed with the Court, in a redacted form, as an annexure to the Third Saje Affidavit, which at [4] refers to a “copy of Ms Holt’s Letter” being annexed as Annexure C1-C9. The AHRC Reasons for Decision are marked as “ATTACHMENT A” and dated 1 December 2017, which is the same date as the AHRC Notice, and both the AHRC Reasons for Decision and the AHRC Notice contain the same file reference. In the circumstances, it is appropriate for the Court to infer that the AHRC Reasons for Decision are Attachment A to the AHRC Notice, and therefore the same Attachment A as is referred to in Category 1 of the documents sought by the Respondents. It is a reasonable inference to draw in all the circumstances that the “assessment” referred to in the First Saje Affidavit is in fact the AHRC Reasons for Decision. It is therefore that document which is referred to at [149] of the First Saje Affidavit. Thus, the AHRC Reasons for Decision are in fact part of a letter dated 1 December 2017 from Ms Holt to Ms Saje (“AHRC December 2017 Letter”), advising, amongst other things, of the termination of the AHRC Complaint and incorporating the AHRC Reasons for Decision. The AHRC December 2017 Letter is not, however, to be produced as the document to which the First Saje Affidavit at [149] “refers” as it is not a document directly alluded to, and is one discernable only by inference (and only after following a convoluted path): Dubai Bank at 739 per Slade and Mann LJJ and Sir David Croom-Johnson; Australialink at [20] per Spender J.
It further emerged at Hearing that Ms Saje was, however, prepared to provide a copy of the AHRC Reasons for Decision in un-redacted form to the lawyers for the Respondents: Transcript, page 8. In the circumstances, the Court indicated that it would make an order that that “entire document be provided”: Transcript, page 8.
In the circumstances there will be an order that pursuant to r.14.10 of the FCC Rules Ms Saje is to provide to the Respondents a copy of the AHRC December 2017 Letter referred to in the Third Saje Affidavit.
Category 2
The documents sought by the Respondents in Category 2 are:
The complaints of unlawful sexual harassment the applicant allegedly lodged with the first respondent and Central Conference of American Rabbis on 28 and 29 October 2015.
The Category 2 documents are sought on the basis that they are allegedly referred to at page 2 of the “complaint” referred to in the First Saje Affidavit at [1], [5], [6], [8], [11] and [15].
At [1], [5], [6], [8], [11] and [15] of the First Saje Affidavit Ms Saje says as follows:
1. The applicant's complaint matter was unlawful discrimination under Sect 22 and unlawful victimisation under Sect 94 of the Sex Discrimination Act 1984 (SDA).
5. Before the complaint was given to the respondents, Ms Vanessa Crawford, Senior Conciliator, called the applicant on 07/04/2017.
6. Ms Crawford said to the applicant "I have now read your complaint with my manager. Your complaint is substantiated".
8. She used words to the effect that the Commission had assessed the respondents' submission, and the delegate was going to terminate the complaint as misconceived.
11. The applicant asked Ms Crawford to allow her to respond to the submission before the termination of the complaint.
15. She terminated the complaint as misconceived, despite the merits of the applicant's case.
The reference to “substantiated” in the First Saje Affidavit at [6] would appear, in context, to be an error, and should probably read “unsubstantiated”. The “submission” referred to in the First Saje Affidavit at [11] is the Respondents’ submission to the AHRC lodged in early June 2017: First Saje Affidavit at [7]-[8]. The “She” referred to in the First Saje Affidavit at [15] is Ms Holt: First Saje Affidavit at [14].
The Court also observes that at [2] in the First Saje Affidavit Ms Saje says:
2. The respondents suppressed and covered-up the applicant’s complaint of unlawful sexual harassment … in the provision of a complaint processing service to the applicant.
The Court further observes that it was conceded by Counsel for the Respondents, ultimately, that the complaint being referred to was “potentially” that referred to in the AHRC Notice, but when reference was made by the Court to the paragraphs referred to in the complaint referred to in Category 2 of the documents Counsel for the Respondents indicated that the Respondents wanted production of the AHRC Complaint, and also those documents referred to in the AHRC Complaint specifically mentioned in sufficient detail to be identified, and where Ms Saje states that they are in her possession and that she is relying on them to make allegations: Transcript at page 13.
It is plain that “complaint” in the First Saje Affidavit at [1], [2], [5], [6], [8], [11] and [15] is not used in the same sense in each of those paragraphs, and that is important for a consideration of whether the document or documents the Respondents seek to have produced are referred to in the First Saje Affidavit.
At [1] in the First Saje Affidavit “complaint” is used generally to refer to alleged unlawful discrimination and victimisation under the SD Act, and not to the complaint actually made to the AHRC, that is the AHRC Complaint. Thus, the reference to “complaint” is not a referral to a document at all, but rather the nature of the alleged discrimination and victimisation. There is, therefore, no document referred to in the First Saje Affidavit at [1].
The Court has referred to the First Saje Affidavit at [2] because it also refers to a complaint, but in a different context again, the “complaint” in the First Saje Affidavit at [2] referring to the complaint made about alleged unlawful sexual harassment by a rabbi said to be a UPJ rabbi. It is said that complaint was suppressed and covered-up in the provision of a complaint processing service to Ms Saje. It is therefore evident that the “complaint” there referred to is a complaint made at some time to someone, but which seemingly precedes the AHRC Complaint.
Read in context, it is evident that the “complaint” referred to in the First Saje Affidavit at [5], [6], [8], [11] and [15], is a reference to the AHRC Complaint which was ultimately terminated by the AHRC Notice. It is, therefore, the AHRC Complaint which is referred to in those paragraphs, and not the complaint originally lodged with the UPJ and the Central Conference of American Rabbis, which is said to be referred to on page 2 of the AHRC Complaint.
The fact that what is being sought by the Respondents are the complaints to the UPJ and the Central Conference of American Rabbis as referred to in the AHRC Complaint does not provide a basis for the production of those documents under the terms of the 2 February 2018 Order. That is because the documents sought are not documents referred to in the First Saje Affidavit, but rather documents referred to in the AHRC Complaint referred to in the First Saje Affidavit. As such they are therefore not subject to production on the basis that they are documents referred to in a document referred to in the First Saje Affidavit: Bird Cameron at [7] per Judge Burley.
In all of the above circumstances, the documents specifically referred to in Category 2 are not liable to be produced by Ms Saje on the basis originally sought by the Respondents, and save to the extent that they are liable to be produced pursuant to another finding in these Reasons for Judgment or an order otherwise made by the Court.
As indicated above: see [47] above, at Hearing it emerged that what the Respondents actually sought by the request in Category 2 were both the AHRC Complaint and the documents referred to in the AHRC Complaint. Ordinarily it would follow that the AHRC Complaint being a document referred to in the First Saje Affidavit, not having been otherwise produced to the Court in these proceedings, must be produced to the Respondents by Ms Saje pursuant to r.14.10(1) of the FCC Rules.
Before considering whether the AHRC Complaint and the documents referred to in the AHRC Complaint are to be produced it is necessary to say further something about the nature of the AHRC Complaint. The purpose of attaching the AHRC Complaint to the Application is because it is a jurisdictional pre-requisite to the filing of the Application that the President of the AHRC has terminated the AHRC Complaint pursuant to s.46PH of the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”), and that the Application to the Court makes the same claims, in substance, as that which were considered by the AHRC under the AHRC Complaint: AHRC Act, s.46PO. The purpose of attaching and referencing the AHRC Complaint in the Application is to establish the Court’s jurisdiction and the limits within which that jurisdiction is exercisable in considering the AHRC Complaint, those limits being determined by the scope of the AHRC Complaint. The content of the AHRC Complaint generally forms no part of the Application, or any relevant pleading, save for the purposes of ascertaining whether or not the Application is in relation to substantially the same alleged acts of discrimination as was the AHRC Complaint: Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; (2000) 105 FCR 573; (2000) 105 IR 153 at [37]-[41] per Katz J; Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118; (2010) 63 AILR 101-302 at [46]-[48] and [50] per Marshall, Rares and Flick JJ; Reynolds v JP Morgan Administrative Services Australia Ltd & Anor (No 2) [2011] FCA 489; (2011) 193 FCR 507; (2011) 280 ALR 612 (“JP Morgan (No 2)”) at [17] and [23]-[24] per Rares J; Oldham v Capgemini Australia Pty Ltd [2015] FCA 1149; (2015) 241 FCR 397 (“Oldham (No 1)”) at [31]-[32] per Mortimer J.
In Oldham v Capgemini Australia Pty Ltd (No 2) [2016] FCA 1101 (“Oldam (No 2)”) at [14] and [19] per Mortimer J the Federal Court stated:
In my opinion, a Complaint made to the AHRC is a private and confidential document, strictly protected under the AHRC legislation, which does not become part of the “pleadings” in this Court and does not lose its private and confidential character because the Federal Court Rules 2011 (Cth) require that it (and the Commission’s notice of termination) are to be filed with any initiating process as proof of satisfaction of the precondition to this Court’s jurisdiction under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act).
…
However in this proceeding, as I noted in the previous decision, it is extensively cross-referenced in the statement of claim. In that sense, it has been deployed in the applicant’s allegations in this Court. However, the cross-references to the AHRC Complaint give some particulars of the allegations, as a matter of fairness to the respondents to the proceeding: that is their only function. Ultimately, what was contained in the cross-references would have had to be proven by admissible evidence.
Nothing that has been said by the Federal Court in relation to the AHRC Complaint not forming part of the Application, or not being a pleading, or being a private and confidential document, precludes production of the AHRC Complaint where the terms of r.14.10(1) of the FCC Rules apply, unless the Court determines that compliance ought to be excused, which might be done if the request is oppressive or the content not relevant: Oztech at [43] per Yates J, or it is in the interests of justice to dispense with compliance with the FCC Rules: FCC Rules, r.1.06(1). Insofar as the AHRC Complaint is concerned it is plainly a document referred to in the First Saje Affidavit, and therefore within the scope of r.14.10(1) of the FCC Rules.
It is important to recognise that JP Morgan (No 2), Oldham (No 1) and Oldham (No 2) were non-party requests for access to documents, and that the ultimate findings were in relation to specific rules in the FC Rules which provided for the inspection of particular documents by non-parties, and it was found in those cases that the AHRC Complaint did not meet the particular description of those documents in the FC Rules. The parameters for production of documents under r.14.10(1) of the FCC Rules is general in nature, and far broader in scope than that in the FC Rules under consideration in JP Morgan (No 2), Oldham (No 1) and Oldham (No 2).
Oldham (No 1) and Oldham (No 2) recognise however, that the AHRC Complaint is “filed” with the Court: especially Oldham (No 2) at [14] per Mortimer J, but that its function in establishing the Court’s jurisdiction is “spent”, “subject to any forensic deployment … (if permitted) at trial”: Oldham (No 2) at [31] per Mortimer J.
In JP Morgan (No 2) it was recognised that an AHRC complaint, albeit a document accompanying an originating application, in this case the Application, is a document “filed” in the proceedings, and that in that regard it has a particular purpose. In JP Morgan (No 2) at [20]-[21] per Rares J the Federal Court said as follows:
21. The evident purpose of item 16 in Form 167 is to ensure that there will be available to the Court, if these are even needed, first, the complaint to the Commission and, secondly, the President’s notice of termination. Thus, the complaint will be available to the Court if a dispute arises as to whether the unlawful discrimination alleged in the application is within the ambit of the conduct permitted to be sued on under s 46PO(3). Additionally, the notice of termination will be available if there is any dispute about the jurisdictional requirement in s 46PO(1)(a) that the President has terminated the complaint. But, if no such dispute or issue arises in the proceedings in the Court, neither of those documents may come to be tendered or deployed in the litigation (although it is conceivable that a complainant might be cross-examined at a final hearing about the contents of his or her complaint to the Commission). However, the original complaint may not be determinative for that purpose. This is because the question whether the subject matter of subsequent proceedings in the Court are justiciable under s 46PO(3) is determined by considering the shape that the complaint had assumed at the time of its termination: Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118 at [47] per Marshall, Rares and Flick JJ.
22. Those factors suggest that, unlike a pleading that defines issues, the purpose of item 16 is to ensure the future availability of documents for the Court proceeding, that may or may not be required. That objective is understandable in a jurisdiction in which often one or more parties will be self-represented. Moreover, none of the items in Form 167, including items 11 to 14, provide for any form of pleading, as Allsop J held in Thomson at [25].
Because the AHRC Complaint is a “document” which is “filed” it falls within the scope of r.14.10(1) of the FCC Rules, and to the extent that it “refers to another document”, those other documents may be sought to be produced pursuant to r.14.10(1) of the FCC Rules. It follows that the Respondents’ request for the documents referred to in the AHRC Complaint is a request for documents referred to in a document filed (and which should always have been filed, but was not in these proceedings, but will now be so by reason of the order referred to at [38] above) for the purposes of r.14.10(1) of the FCC Rules.
Category 3
Category 3 of the documents sought by the Respondents is described as:
Documents confirming that the first respondent offered and granted a complaint processing service and made the first respondent’s facilities available to the applicant.
The documents in Category 3 are sought on the basis of what is said in the First Saje Affidavit at [29] where Ms Saje states:
29. UPJ offered and granted her that benefit, whereby they offered and granted her the service of complaint processing and made the UPJ facilities available for it.
No document is referred to at [29] of the First Saje Affidavit. Rather, Ms Saje is asserting a matter of alleged fact. At Hearing the Respondents legal representative submitted:
The request is being made on the basis that the assertion made at paragraph 29… may or may not be captured in a document…
(Transcript at page 14).
This submission effectively concedes that no document is referred to at [29] of the First Saje Affidavit. Alternatively, the fact that there is a question as to whether there is any such document in existence makes plain that [29] of the First Saje Affidavit does not contain a reference to a document: King at [17] per Moore J. What the Respondents are seeking is discovery, as to which see [18] above.
The documents in Category 3 are not documents referred to in the First Saje Affidavit for the purposes of r.14.10(1) of the FCC Rules.
Category 4
The documents sought by the Respondents in Category 4 are described as:
All documents recording the demands, threats and claim for defamation issued to the applicant by Rabbi … [name deleted] and Temple David including but not limited to a copy of the document in Appendix 14 of the Complaint.
and are said by the Respondents to be referred to at pages 2 and 4 and Appendix 14 of the AHRC Complaint.
What the Respondents are actually seeking is discovery, as to which see [18] above.
At page 2 of the AHRC Complaint Ms Saje says that:
He [a reference to the rabbi concerned] and Temple David in Perth victimised me unlawfully by demands, threats and a claim of defamation from 2 November 2015 onwards.
At page 4 of the AHRC Complaint Ms Saje says that:
Solicitors acting for Temple David and the rabbi wrote to me with demands and threats of legal action on defamation unless I withdraw the essence of the complaints.
Appendix 14 to the AHRC Complaint appears to contain two extracts from other documents which, other than by their dates in November and December 2015, are not otherwise identified at Appendix 14, however, Appendix 14 to the AHRC Complaint is also referred to at page 8 of the AHRC Complaint where Ms Saje says as follows:
These allegations were made in letters by solicitors acting for the rabbi and Temple David. I have extracted the relevant sections to protect the rest of the letters that I have in their entirety. – A copy of the extracts is in Appendix 14.
The reference to demands, threats and a claim of defamation at page 2 of the AHRC Complaint is not of itself a reference to any document either referred to or filed in these proceedings. The documents which are referred to at pages 4 and 8 and Appendix 14 of the AHRC Complaint are documents referred to in a document – the AHRC Complaint – filed with the Court, for the purposes of r.14.10(1) of the FCC Rules.
Category 5
The document sought by the Respondents in Category 5 is described as:
Letter/email from Carmel Galati to Temple David board dated on or about 16 March 2016.
and said to be referred to at page 10 of the AHRC Complaint.
The document sought in Category 5 is sought on the basis of what is said at page 10 of the AHRC Complaint where Ms Saje states:
Solicitor Carmel Galati, acting for me, wrote a letter to the Temple David Board, to address my mistreatment by the Board.
The document sought by the Respondents in Category 5 is a document referred to (at least insofar as a “letter” is referred to) in the AHRC Complaint, and the “letter” is therefore a document referred to in a document filed for the purposes of r.14.10(1) of the FCC Rules.
Category 6
The documents sought by the Respondents in Category 6 are described as:
All documents recording the applicant’s complaint made in 2015 about Mr [… name deleted] harassing the applicant ‘sexually for months’.
and said to be referred to at [98] of the First Saje Affidavit where Ms Saje affirms:
98. The applicant complained in 2015 about a male community member (Mr … [name deleted]) harassing her sexually for months; she had proof and witnesses.
The Respondents seek “all documents” recording Ms Saje’s complaint concerning the alleged sexual harassment referred to at [98] of the First Saje Affidavit. This is, yet again, a request for discovery, as to which see [18] above.
Applying Australialink at [21] per Spender J the word “complained” cannot be said to be a reference to a document, and furthermore in this case there are not even compelling or strong grounds for believing the complaint referred to at [98] of the First Saje Affidavit had been reduced to writing or put into a document. That Ms Saje said she had proof and witnesses does not suggest that the complaint referred to is in a document.
The documents referred to in Category 6 are not documents referred to in the First Saje Affidavit for the purposes of r.14.10(1) of the FCC Rules.
Category 7
The documents sought by the Respondents in Category 7 are described as:
All documents recording the applicant’s expulsion from Temple David on 23 October 2015.
and said to be referred to at [101] of the First Saje Affidavit where Ms Saje affirms:
She was expelled (=dismissed) straight away without an opportunity to be heard on 23/10/2015 in a most brutal way.
The Respondents seek “all documents” recording Ms Saje’s expulsion referred to at [101] of the First Saje Affidavit. This is, yet again, a request for general discovery: as to which see [18] above.
There is no reference to a document in the First Saje Affidavit at [101], but rather an assertion of fact, as Counsel for the Respondents correctly conceded at Hearing: Transcript at page 23.
The documents referred to in Category 7 are not documents referred to in the First Saje Affidavit for the purposes of r.14.10(1) of the FCC Rules.
Category 8
The document sought by the Respondents in Category 8 is described as:
The complaint attached to the cover letter addressed to Rabbi … [name deleted] and the fifth respondent dated 7 November 2015.
and said to be referred to at page 6 and Appendix 10 of the AHRC Complaint.
The document in Category 8 is sought on the basis of what is said in the AHRC Complaint at page 6 where Ms Saje says, in reference to an email:
The title of the attachment showed it contained a complaint about a rabbi. The cover showed the complaint was highly confidential, and only to the two recipients knew about it. – A copy of the cover is in Appendix 10.
At Appendix 10 is a document printed in red type and headed “HIGHLY CONFIDENTIAL”. It is addressed to a rabbi and to the fifth respondent, Mr Denenberg, and goes on in the first two paragraphs to refer to “[t]his document”, from which it can be inferred, together with the reference to “cover” at page 6 of the AHRC Complaint, that this is the cover page of the document containing the complaint about a rabbi, and is therefore a document referred to in the AHRC Complaint. The complaint for which Appendix 10 is the cover sheet is therefore a document required to be produced for the purposes of r.14.10(1) of the FCC Rules.
Category 9
The documents sought by the Respondents in Category 9 are described as:
Any documents confirming the police dismissed the report entirely.
and said to be referred to in the First Saje Affidavit at [111] which states:
111. The police dismissed the report entirely.
The Respondents argue that they seek documents confirming that the police have in fact dismissed the report entirely as Ms Saje affirms in [111] of the First Saje Affidavit. At Hearing Counsel for the Respondents conceded that there was no reference to a document in [111] of the First Saje Affidavit: Transcript at page [23]. Yet again, what is sought is discovery: as to which see [18] above.
The documents referred to in Category 9 are not documents referred to in the First Saje Affidavit for the purposes of r.14.10(1) of the FCC Rules.
Category 10
The documents sought by the Respondents in Category 10 are as follows:
All correspondence the applicant sent to and received from the NSW Legal Services Commissioner in respect of the third respondent.
and said to be referred to at [118], [126] and [127] of the First Saje Affidavit.
Once again, the form of the documents sought by the Respondents is in the nature of a request for general discovery: as to which see [18] above.
At [118], [126] and [127] of the First Saje Affidavit Ms Saje relevantly said:
118. Ms Holt’s opinion of “misconceived and lacking in substance” contradicts the opinion or finding of four legal authorities. They are:
- NSW Legal Services Commissioner John McKenzie
…
126. The applicant wrote to Commissioner John McKenzie on 14/12/2016, after speaking to the Enquiry Officer on 09/12/2016.
127. She lodged a complaint alleging professional misconduct by Stephen Freeman, in his leaking the applicant’s complaints to rabbi … [name deleted]. – A copy of the letter is annexed hereto and marked as Annexure I.
At [118] of the First Saje Affidavit there is no reference to a document, or “correspondence” (as referred to in Category 10), but rather an “opinion” or “finding” from the NSW Legal Services Commissioner. An opinion or finding need not be written: Australialink at [21] per Spender J, and there is nothing in the First Saje Affidavit at [118] which would indicate that the opinion or finding referred to was in a document.
At [126] of the First Saje Affidavit Ms Saje confirms she “wrote” a complaint to the NSW Legal Services Commissioner (“Legal Services Complaint”). The fact that Ms Saje wrote to the NSW Legal Services Commissioner is confirmed at [127] and Annexure I to the First Saje Affidavit. Annexure I to the First Saje Affidavit is a letter from the NSW Legal Services Commissioner to Ms Saje confirming, in the first paragraph, that a complaint had been received on 11 December 2016, and, in the second paragraph, that the complaint took the form of “correspondence”. Thus there is:
a)a direct allusion to a document by use of the term “wrote” at [126] of the First Saje Affidavit; and
b)confirmation from the NSW Legal Services Commissioner that correspondence had been received from Ms Saje: First Saje Affidavit at [127] and Annexure I,
and it is therefore plain that the Legal Services Complaint is a document referred to in the First Saje Affidavit and which must be produced under r.14.10(1) of the FCC Rules.
Whether there were in fact two documents, namely the Legal Services Complaint referred to at [127] and Annexure I of the First Saje Affidavit and a subsequent writing to the NSW Legal Services Commissioner on 14 December 2016, is an issue.
It would appear that the correspondence constituting the Legal Services Complaint was received by the office of the NSW Legal Services Commissioner on 11 December 2016: First Saje Affidavit at Annexure I. From the First Saje Affidavit at [126] it would appear that Ms Saje says that she wrote to the NSW Legal Services Commissioner on 14 December 2016, and if that be the case, there is a written document subsequent to the Legal Services Complaint which also falls within the terms of r.14.10(1) of the FCC Rules and must be produced.
In the Fourth Saje Affidavit Ms Saje states in Annexure 4 at [13]-[16] in referring to an earlier list of documents sought by the Respondents:
The complaint I referred to was emailed in 2016, but I have no access to the email address I used at the time, because it was leaked to people I did not want to have it, and I change email accounts. However, I already provided the complaint information in the response in Annexure I and J1, and I have no other documents regarding the matter
…
I did not refer to any emails, letters and documents in my affidavit. What I did refer to is in Appendices J1 and J2 of the first affidavit.
On the face of it Ms Saje is therefore required to produce:
a)any communication the applicant wrote to the Legal Services Commissioner on 14 December 2016: First Saje Affidavit at [126]; and
b)the complaint she lodged with the Legal Services Commissioner: First Saje Affidavit at [127].
In relation to the assertion that Ms Saje has already provided the “complaint information” to the Respondents, that is irrelevant: pursuant to the terms of the 2 February 2018 Order the Respondents were entitled to Ms Saje’s copies of the documents set out at [98(a) and (b)] above, and would be so entitled even if they were in possession of their own copies of those documents separately obtained. The Respondents are entitled to verify the document or documents required to be produced, and also to the benefit of any forensic advantage which might arise from reviewing Ms Saje’s copies of any document or documents sought: Beneficial Finance, SASR at 49 per Lander J; Gerling; Betfair at [16] per Perram J.
In relation to Ms Saje’s assertion that the Legal Services Complaint was emailed, and that she no longer has access to the email from which the Legal Services Complaint was emailed because she has changed email accounts, the Court considers that that bare assertion is insufficient, in its present terms, to justify non-production of the documents sought by the Respondents. In particular, and at a minimum, there is no explanation from Ms Saje as to what steps she has taken to ascertain if she is able to obtain access to her former email address, including, for example, whether she has endeavoured to contact the relevant email provider to see if access can be granted, and, if not, why not.
In the above circumstances the documents required to be produced under Category 10 are as follows:
a)any communication Ms Saje wrote to the Legal Services Commissioner on 14 December 2016: First Saje Affidavit at [126]; and
b)the Legal Services Complaint Ms Saje lodged with the NSW Legal Services Commissioner: First Saje Affidavit at [127].
Category 11
The documents sought by the Respondents in Category 11 are as follows:
All correspondence the applicant sent to and received from the Professional Standards Committee of the Law Society of NSW.
and said to be referred to at [118], [130] and Annexures I and J1 of the First Saje Affidavit.
Once again, the form of the request is that of a request for general discovery: as to which see [18] above.
At [118] of the First Saje Affidavit Ms Saje says:
118. Ms Holt's opinion of "misconceived and lacking in substance" contradicts the opinion or finding of four legal authorities. They are:
…
- Solicitor Lee Anderson for the Professional Standards Committee of the Law Society of NSW
…
In relation to [118] of the First Saje Affidavit the Court repeats the substance of [93] above to the effect that there is nothing in the First Saje Affidavit at [118] which would indicate that the opinion or finding referred to was in a document.
At [130] of the First Saje Affidavit Ms Saje says:
130. The applicant received a response form solicitor Lee Anderson for the Law Society of NSW, whose assessment of the complaint matter, on the basis of the email content, was:
- Breaching the complainant’s privacy
- Breaching Rule 34.1.2 of the Solicitors’ Conduct Rules 2015 (using tactics that go beyond legitimate advocacy and which are primarily designed to embarrass or frustrate another person). – A copy of the letter is annexed hereto and marked as Annexure J1 and J2.
Annexure I to the First Saje Affidavit is an acknowledgement from the NSW Legal Services Commissioner of the receipt of the Legal Services Complaint, and an advice that the Legal Services Complaint was to be dealt with by the Professional Standards Department of the Law Society of New South Wales (“NSW Law Society”).
Annexure J1-J2 is an acknowledgement from the Professional Standards Department of the NSW Law Society of the receipt of the Legal Services Complaint by Ms Saje, referred by the NSW Legal Services Commissioner, which sets out a preliminary assessment in the terms broadly set out at [130] of the First Saje Affidavit, and otherwise simply indicates the likely future conduct and progress of the Legal Services Complaint (“Professional Standards Department Acknowledgment”).
The reference at [130] of the First Saje Affidavit is to a response from a solicitor for the Law Society of NSW. It is sufficiently clear that the response referred to is the Professional Standards Department Acknowledgment at Annexure J1-J2 of the First Saje Affidavit. It follows that the Professional Standards Department Acknowledgment is a document referred to in the First Saje Affidavit for the purposes of r.14.10(1) of the FCC Rules.
Having regard to authority, and in fairness to the Respondents, Ms Saje must produce the Professional Standards Department Acknowledgment: Beneficial Finance, SASR at [49] per Lander J; Gerling; Betfair at [16] per Perram J, notwithstanding that there is a copy annexed to the First Saje Affidavit.
Category 12
The documents sought by the Respondents in Category 12 are as follows:
The ‘opinion or finding’ of ‘Justice Chaney in the Perth Supreme Court’.
and said to be referred to at [118] of the First Saje Affidavit.
The First Saje Affidavit at [118] is relevantly as follows:
118. Ms Holt’s opinion of “misconceived and lacking in substance” contradicts the opinion or finding of four legal authorities. They are:
…
- Justice Chaney in the Perth Supreme Court
…
The Respondents seek the “opinion” or “finding” referred to at [118] of the First Saje Affidavit. As indicated at [93] above there is no reference to a document at [118] of the First Saje Affidavit, and the reference to an “opinion” or “finding” of a judicial officer does not mean that the opinion or finding need be a written one: Australialink at [21] per Spender J, and there is nothing in the First Saje Affidavit at [118] which would indicate that the opinion or finding referred to was in a document. Thus, the documents referred to in Category 12 are not documents referred to in the First Saje Affidavit for the purposes of r.14.10(1) of the FCC Rules.
At Hearing, however, reference was made to Annexure E1-E2 of the Third Saje Affidavit which is a cut and pasted extract of some transcript, seemingly from pages 15 and another unnumbered page of proceedings in the Supreme Court of Western Australia in a matter numbered CIV1340/2017, and which it would appear are the proceedings in which it is said that an opinion or finding was made by Justice Chaney on 4 May 2017, as referred to at [118] of the First Saje Affidavit. In any event, Ms Saje agreed that she would provide the entirety of that transcript to the Respondents: Transcript at page 31, and in the circumstances there will be an order to that effect.
Category 13
The documents sought by the Respondents in Category 13 are as follows:
Any written decision and/or a court transcript capturing the statement made at paragraph 123 of the First Saje Affidavit.
and said to be referred to in the First Saje Affidavit at [123].
In the First Saje Affidavit at [123] Ms Saje says as follows:
123. On 04/05/2017 Justice Chaney in Perth Supreme Court rejected rabbi … [name deleted] argument, and he referred the matter back to Judge Sharp at the Tribunal.
What is said in the First Saje Affidavit at [123] is no more than a statement of purported fact and cannot be said to be a reference to a document. It may be that the statement or rejection is contained in a document, but not referred to, but for present purposes that cannot be implied: Dubai Bank at 739 per Slade and Mann LJJ and Sir David Croom-Johnson. The documents in Category 13 are not therefore documents referred to in the First Saje Affidavit for the purposes of r.14.10(1) of the FCC Rules, save to the extent that the documents sought are documents caught by the order referred to at [114] above.
Category 14
The documents sought by the Respondents in Category 14 are as follows:
The documents the applicant filed and were served with in the legal proceeding in the Supreme Court of Western Australia in matter number CIV1340 of 2017, including but not limited to a full and un-redacted copy of the transcript marked Annexures E1 and E2 in the applicant’s affidavit affirmed on 7 February 2018.
and said to be referred to at “Paragraph 6 of the applicant’s affidavit affirmed on 7 February 2018 … and Annexures E1 and E2 of … [that] Affidavit”.
The Respondents advised the Court they did not wish to pursue production of these documents at the present time, and would make an application at a later stage if necessary. In the circumstances, it is not necessary for the Court to deal with the documents sought by the Respondents in Category 14.
Category 15
The document sought by the Respondents in Category 15 is described as:
The document recording the settlement of the defamation proceedings.
and said to be referred to at page 2 and Appendix 3f of the AHRC Complaint.
In the AHRC Complaint at page 2 Ms Saje says that she “settled the claim” and makes a reference further to “settling the claim” but does not specify how the claim there referred to was settled. At Appendix 3f of the AHRC Complaint in a statutory declaration Ms Saje says as follows:
I shall have to sign a private settlement to avoid long expensive legal proceedings.
Neither the reference to the claim at page 2 of the AHRC Complaint, nor the reference to a private settlement at Appendix 3f of the AHRC Complaint, constitutes a referral to a document. The former references to settlement of the claim are statements of fact or purported fact, and the reference to having to sign a private settlement is a statement of, it appears, future intention. In neither case is a document actually referred to. In those circumstances there is no document referred to in Category 15 for the purposes of r.14.10(1) of the FCC Rules. Otherwise, the request is, yet again, a request for discovery: as to which see [18] above.
Category 16
The documents sought by the Respondents in Category 16 are as follows:
The ‘opinion or finding’ of ‘Judge Sharp’ in the Perth Tribunal.
and said to be referred to at [118] of the First Saje Affidavit.
At [118] of the First Saje Affidavit Ms Saje relevantly says as follows:
118. Ms Holt's opinion of "misconceived and lacking in substance" contradicts the opinion or finding of four legal authorities. They are:
…
- Judge Sharp in the Perth Tribunal.
The Respondents seek the “opinion” or “finding” referred to at [118] of the First Saje Affidavit. As indicated at [93] above there is no reference to a document at [118] of the First Saje Affidavit, and the reference to an “opinion” or “finding” of a judicial officer does not mean that the opinion or finding need be a written one: Australialink at [21] per Spender J, and there is nothing in the First Saje Affidavit at [118] which would indicate that the opinion or finding referred to was in a document. Thus, the documents referred to in Category 16 are not documents referred to in the First Saje Affidavit for the purposes of r.14.10(1) of the FCC Rules.
At Hearing, however, reference was made to Annexure D of the Third Saje Affidavit which is a redacted copy of what appeared to be orders of the State Administrative Tribunal dated 9 June 2017 in matter number EOA2/2017 (“SAT Orders”). At Hearing Ms Saje agreed to provide an un-redacted copy of the SAT Orders. There will therefore be an order that Ms Saje serve on the Respondents an un-redacted copy of the SAT Orders.
Category 17
The documents sought by the Respondents in Category 17 are as follows:
The written decision and/or court transcript capturing the statement made at paragraph 124 of the First Saje Affidavit.
and said to be referred to at [124] of the First Saje Affidavit.
At [124] of the First Saje Affidavit Ms Saje says that:
124. On 09/06/2017 Judge Sharp dismissed the said application.
The form of the request in Category 17 is again that of a request for discovery: as to which see [18] above.
What is said at [124] of the First Saje Affidavit is no more than a statement of purported fact and cannot be said to be a reference to a document. It may be that there is a written decision or a court transcript capturing the statement of purported fact, but for present purposes that cannot be implied: Dubai Bank at 739 per Slade and Mann LJJ and Sir David Croom-Johnson. At Hearing: Transcript at pages 38-40, it emerged that what is referred to at [124] of the First Saje Affidavit may well be the SAT Orders that the Court has ordered be served by Ms Saje upon the Respondents, as referred to at [126] above. Whether or not that is so is not discernible from the materials presently before the Court, and the documents referred to in Category 17 are not documents referred to in the First Saje Affidavit for the purposes of r.14.10(1) of the FCC Rules, save to the extent that the documents sought are documents caught by the order referred to at [126] above.
Category 18
The documents sought by the Respondents in Category 18 are as follows:
The documents the applicant filed and were served with in the legal proceeding in the State Administrative Tribunal in matter number EOA 2/2017, including but not limited to a full and un-redacted copy of the document marked Annexure D in the applicant’s affidavit affirmed on 7 February 2018.
and said to be referred to at “Paragraph 5 of the applicant’s affidavit affirmed on 7 February 2018 … and Annexure D of the … [that] Affidavit”.
The Respondents advised the Court they did not wish to pursue production of these documents at the present time, and would make an application at a later stage if necessary. In the circumstances, it is not necessary for the Court to deal with the documents sought by the Respondents in Category 18.
Conclusion and orders
The Court has concluded that:
a)order 1 of the 2 February 2018 Orders ought to be amended to reflect its actual intent, and that given the Court’s findings with respect to those documents referred to in a document or affidavit for the purposes of r.14.10(1) of the FCC Rules, time for compliance with order 1 of the 2 February 2018 orders ought to be extended to 2 June 2019;
b)the AHRC Complaint and its appendices are to be marked an “Additional Document” and uploaded to the Filed Documents folder in the ECF;
c)Ms Saje is to produce to the Respondents an un-redacted copy of a letter to her from the AHRC, signed by Ms Holt as Delegate for the President of the AHRC, and dated 1 December 2017, and referred to in the Third Saje Affidavit, by 2 June 2019;
d)Ms Saje is to serve on the Respondents a copy of the transcript of proceedings on 4 May 2017 in the Supreme Court of Western Australia in matter number CIV1340/2017 by 2 June 2019;
e)Ms Saje is to serve on the Respondents a copy of the SAT Orders by 2 June 2019; and
f)for case management reasons, other than as prescribed by the orders made by the Court today, no further applications or documents of any kind are to be filed by either party or to be accepted for filing by any Registry of this Court until further order of the Court, and the proceedings (including the application in a case filed by Ms Saje on 4 March 2018) are to be adjourned to 3.00pm on 28 June 2019 for further directions.
The Court will hear the parties as to costs.
I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 2 May 2019
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