Schardijn v Roper Gulf Regional Council

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Schardijn v Roper Gulf Regional Council [2024] FedCFamC2G 61   

File number: DNG 25 of 2023
Judgment of: JUDGE CHAMPION
Date of judgment: 30 January 2024
Catchwords: PRACTICE AND PROCEDURE – Interlocutory applications – Subpoena – Notice of objection to subpoena – Applicant issued subpoena to the Respondent for production of  particular classes of documents – Whether use of subpoena rather than application for discovery may amount to an abuse of process – Where subpoena treated as an application for particular classes of documents by way of discovery – Declaration that discovery of particular classes of documents in the interests of the administration of justice – Order for production of an identified document in “soft copy” format
Legislation:

Evidence Act 1995

Fair Work Act 2009 (Cth)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules2021 (Cth)

Federal Court and Family Court of Australia Act 2021
Cases cited:

Abrahams v Qantas Airways Ltd (No.2) [2007] FMCA 639

ACCC v Shell Co of Australia Ltd. (1999) 161 ALR 686; [1999]  FCA 212

Behrooz v Secretary Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486, 493

Jarra Creek Central Packing Shed Pty ltd. v. Amcor Ltd [2006] FCA 1802

Power Infrastructure Pty Ltd v Downer EDI Engineering Power Pty Ltd [2012] FCA 143

South Sydney District Rugby League Football Club Ltd v News Ltd [2000] FCA 518
Division: Division 2 General Federal Law
Number of paragraphs: 50
Date of last submissions: 25 January 2024
Date of hearing: 25 January 2024
Place: Melbourne
Applicant: In person
Solicitor for the Respondent: Cozens Johansen

ORDERS

DNG 25 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

IRENE SCHARDIJN

Applicant
AND:

ROPER GULF REGIONAL COUNCIL

Respondent

ORDER MADE BY:

JUDGE CHAMPION

DATE OF ORDER:

30 JANUARY 2024

THE COURT ORDERS THAT:

1.The Applicant’s subpoena for the production of documents dated 16 December 2023 is set aside.

2.The Court declares that it is appropriate in the interests of the administration of justice to allow discovery pursuant to s. 176(2) of the Federal Circuit Court and Family Court of Australia Act 2021 (Cth).

3.The Court orders that the Respondent make discovery as to particular classes of documents pursuant to r. 14.02(2)(b) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules2021 (Cth) as to those classes of documents set out in Attachment A to these orders.

4.The Court orders that the Applicant make discovery as to particular classes of documents pursuant to r. 14.02(2)(b) of the Rules as to those classes of documents set out in Attachment B to these orders.

5.Each party file an affidavit of documents pursuant to r. 14.03 of the Rules on or before 4:00 pm on 19 February 2023.

6.Each party make available for inspection by the other party the documents disclosed in the affidavit on or before 4:00 pm on 26 February 2023 or such other…

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Details
Case
[2024] FedCFamC2G 61
Decision Date

CaseChat Overview and Summary

In the case of Schardijn v Roper Gulf Regional Council, Ms Schardijn, a former employee of the Roper Gulf Regional Council (RGRC), issued a subpoena seeking the production of various documents from RGRC. RGRC objected to the production of certain categories of documents, arguing that they had no legitimate forensic purpose. The central issue before the court was whether the use of a subpoena to obtain documents, instead of the usual discovery process, constituted an abuse of process and whether the documents in question had a legitimate forensic purpose. The court noted that while subpoenas are a powerful tool, they are not to be used as a substitute for the discovery process, which is the prescribed method for obtaining documents between parties. Ms Schardijn admitted that she did not make a deliberate choice to proceed with a subpoena instead of a discovery application, but the court had to determine if this oversight justified treating the subpoena as an application for discovery.

The court examined whether the documents Ms Schardijn sought through the subpoena had a legitimate forensic purpose, which requires a reasonable expectation of obtaining relevant material from those documents. RGRC argued that the documents it was being asked to produce had no legitimate forensic purpose because they were not relevant to the proceedings. The court had to balance the need for an orderly management of litigation against the potential prejudice to the opposing party if the subpoena was treated as an application for discovery. The court considered whether the documents in question could contribute to the resolution of the substantive issues and if their production would be in the interests of justice. Given that RGRC had consented to producing some of the documents, the court needed to decide on the appropriate course of action for the remaining contested categories.

The court concluded that while the use of a subpoena in this context was not ideal, treating it as an application for discovery was appropriate given the circumstances. The court found that there was a legitimate forensic purpose for some of the documents Ms Schardijn sought, particularly those that could potentially provide relevant information to the substantive issues. The court ordered that the disputed “Record of a Conversation” be disclosed as a Word document or in a “soft copy” format to allow for inspection of metadata, which might be relevant to the proceedings. The court dismissed the application regarding the other contested categories of documents, finding that they did not have a legitimate forensic purpose. This decision reflects the court's approach to balancing the procedural rules with the practicalities of litigation and the interests of justice.

Orders

Orders of the court

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Background

Background to the litigation

As to the second interlocutory application I propose to order that a disputed “Record of a Conversation” dated on or about 23 June 2023 be, on request by Ms Schardijn, disclosed as a Word document or as a “soft copy” format. The provision of the document in that form may enable inspection of some relevant metadata as to the document. Otherwise, I propose to dismiss the application.BACKGROUND Ms Schardijn was an employee of RGRC. She worked in Ngukurr, a remote Aboriginal community, some 600 kilometres south-east of Darwin. She was employed for a short period from on or about 13 June 2023 until 4 July 2023. RGRC’s principal office is in Katherine. Its Council operations cover a vast area and Ngukurr is one of the communities for which RGRC has responsibilities. Ms Schardijn was employed as an Aged Care and Disability Coordinator in Ngukurr’s Aged Care Centre. Ms Schardijn alleges (among other matters) that she was dismissed from her employment because she made complaints or inquiries she was able to make in relation to her employment in contravention of provisions of Part 3.1 of the Fair Work Act 2009 (Cth) (FW Act). RGRC defends Ms Schardijn’s application on the basis that it dismissed Ms Schardijn from her employment not for any reason prohibited by the FW Act but for the reasons set out in its letter of dismissal dated 4 July 2023 that she was “not meeting the inherent requirements of the position.” The determination of the substantive issues is a matter for trial.The first interlocutory application – the subpoena By her subpoena Ms Schardijn seeks production of documents identified in 17 numbered paragraphs. Some of the paragraphs appear to identify a single document and other paragraphs to refer to categories of documents. In its notice of objection to the subpoena, RGRC consented to producing documents in categories 1, 15 and 16. It objected to producing documents in answer to categories 2–13, 14 and 17.The relationship between discovery and subpoenas Ordinarily, in the interests of the orderly management of litigation, documents are sought from an opposing party by way of an order for discovery, rather than by way of the issue of a subpoena. Where the Court rules prescribe a discovery application as the means to achieve the disclosure of documents as between the parties, it may be impermissible to attempt to achieve disclosure through the issue of a subpoena: ACCC v Shell Co of Australia Ltd. (1999) 161 ALR 686; [1999] FCA 212, [50]. Indeed, using a subpoena rather than the discovery process to obtain disclosure of documents from a party may amount to an abuse of the processes of the Court: South Sydney District Rugby League Football Club Ltd v News Ltd [2000] FCA 518, [2]. Ms Schardijn candidly submitted to the court that she did not make a considered forensic decision to proceed by way of a subpoena rather than by way of a discovery application. RGRC has not submitted that the subpoena is an abuse but has objected to producing documents in answer to the subpoena (with the exception of documents in categories 1, 15 and 16) because the documents Ms Schardijn seeks have no legitimate forensic purpose. In ascertaining whether the documents that are the subject matter of a subpoena have a legitimate forensic purpose, the Court must enquire whether there is an expectation on reasonable grounds of obtaining from those documents material which can be relevant to the proceeding: see Behrooz v Secretary Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486, 493.My proposed approach

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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