Schardijn v Roper Gulf Regional Council
[2024] FedCFamC2G 61
•30 January 2024
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 time as may be agreed by the parties in writing.
7.As to the “Record of a Conversation” dated on or about 23 June 2023 referred to in Attachment A the Respondent provide a word copy or “soft copy” of the document for inspection by the Applicant on her request.
8.The Applicant’s interlocutory applications are otherwise dismissed.
9.The Court’s orders made on 20 October 2023 otherwise remain in full force and effect.
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).
ATTACHMENT A
The Respondent is to make discovery of documents in relation to the following particular classes of documents:
1.Any document recording a complaint or inquiry of the Applicant (whether or not the complaint or inquiry is a complaint or inquiry within the meaning of s. 341(1)(c)(ii) of the Fair Work Act 2009 (Cth)) received by the Respondent between the dates of 13 June 2023 until 4 July 2023 (inclusive);
2.Any document as to the decision of the Respondent between the dates of 13 June 2023 and 4 July 2023 (inclusive) to dismiss the Applicant from employment;
3.Any document as to emails or text messages sent to the Applicant as to a Workplace Health and Safety Meeting on 23 June 2023;
4.Any document titled or in the nature of a “Record of a Conversation” dated on or about 23 June 2023.
5.Any other document that adversely affects the Respondent’s case.
ATTACHMENT B
he Applicant is to make discovery of documents in relation to the following particular classes of documents:
1.All documents as to the Applicant’s steps taken to secure alternative employment after 4 July 2023;
2.Documents sufficient to disclose the total of the Applicant’s earnings in alternative employment since 4 July 2023; and
3.Any other document that adversely affects the Applicant’s case.
NOTATION:
A.The Court notes that the Applicant may redact any document she discovers so as to keep confidential the identity of her employer.
REASONS FOR JUDGMENT
JUDGE CHAMPION:
SUMMARY
The applications
Ms Irene Schardijn, the Applicant, has brought two interlocutory applications.
The first interlocutory application made on 6 December 2023 seeks that the Roper Gulf Regional Council (RGRC), the Respondent, produce documents itemised in 17 numbered paragraphs in answer to a subpoena. RGRC filed a Notice of Objection as to the subpoena on 19 December 2023.
Ms Schardijn’s second interlocutory application seeks (among other matters) access to RGRC’s servers “by an IT expert of my choosing”.
Ms Schardijn made an affidavit on 15 January 2023 which I treat is read on the application. Ms Schardijn provided a further written outline of submissions after the oral hearing which I have read.
For the reasons set out below, as to the first application in the interests of ensuring that this matter is ready for trial as listed on 12 April 2024, I have treated the subpoena as an application for discovery of particular classes of documents. I have determined to order that RGRC make discovery of documents of a more limited class of documents than Ms Schardijn seeks. Reciprocally, I have also ordered that Ms Schardijn makes discovery of particular classes of documents. I have otherwise set aside the subpoena.
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
In South Sydney the Federal Court treated a contested subpoena between the parties as an application for particular discovery: South Sydney, [3]. The Court approached the matter in that way so as to ensure that the matter was ready for trial.
This matter is set down for trial in the relatively near future on 12 April 2024. I propose to adopt a similar pragmatic approach in this case to the approach the court adopted in the South Sydney case.
Discovery in the FCFCOA (Division 2)
Ms Schardijn has no automatic entitlement to discovery. In this Court, s. 176(2) of the Federal Court and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) provides that discovery is not allowed “unless the Court or a judge declares that it is appropriate, in the interests of the administration of justice, to allow the […] discovery.” In deciding whether to make a declaration, I must have regard to whether allowing discovery “would be likely to contribute to the fair and expeditious conduct of the proceedings and such other matters (if any) as the Court… considers relevant”: s. 176(3)(a) and (b). I must act consistently with case management objectives for “the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute” FCFCOA Act. s. 190(2)(e).
In Abrahams v Qantas Airways Ltd (No.2) [2007] FMCA 639 at [25] Lucev FM (as his Honour then was) canvassed matters the Court may consider in whether to declare that it is appropriate in the interests of the administration of justice to allow discovery. Those matters might include the relevance of documents sought to be discovered, the volume of the documents sought to be discovered and whether discovery would narrow the issues between the parties. His Honour expressly noted “the categories of relevant factors […] are obviously not closed”: Abrahams, [26]
Having regard to s. 176(2) and (3) of the FCFCOA Act as to the documents she seeks in my opinion Ms Schardijn casts her net far too wide in the hope that by trawling widely for documents she may ensnare something of use to her case. I would make the same observations as to the subpoena: that is, there is no legitimate forensic purpose to most classes of documents she seeks by way of her subpoena. This case is not a broad-based inquiry as to management practices or the culture of RGRC. In my view, any discovery of documents needs to be closely targeted to the matters for decision under Part 3.1 of the FW Act.
It is nonetheless in the interests of justice to make a declaration under s. 176(2) of the FCFCOA Act and order RGRC to make discovery of particular classes of document which are relevant to its decision to dismiss Ms Schardijn from its employment. The particular classes of documents are much narrower than the classes of documents Ms Schardijn seeks.
In this case, the state of mind of the decision-maker(s) and the reasons they dismissed Ms Schardijn is directly relevant to any decision the Court. Contemporaneous documents as to that decision may be of significant relevance in shedding light on the reasons of the decision-maker(s). Further, it is in the nature of things that the reasons for which the decision-makers acted are within their peculiar knowledge and are not necessarily within Ms Schardijn’s field of vision. The documents may be in the nature of internal communications between Council officers unseen by Ms Schardijn.
It is also the fact that the burdens (as to time and resources) imposed by a requirement to make discovery are onerous. The scope of discovery and the resources to be deployed in making reasonable searches for documents must be kept strictly proportionate to the complexity and importance of the matters in dispute. I also note that the issue before the Court is different in scope and nature from an unfair dismissal dispute, which disputes are dealt with under Part 3.2 of the FW Act.
The purpose of discovery
Katzmann J described the purpose of discovery in Power Infrastructure Pty Ltd v Downer EDI Engineering Power Pty Ltd [2012] FCA 143 at [14] in the following terms:
The purpose of discovery is to facilitate proof of facts in issue and to avoid ambush or surprise and the delay and wasted costs that that entails. It can therefore be extremely valuable. But it can also be extremely expensive. It is a discretionary procedure.
The classes of documents Ms Schardijn seeks
Subject to some further grouping of the documents as Ms Schardijn identified them, I have dealt sequentially below with each of the classes of documents that Ms Schardijn seeks.
Class 1: a copy of this subpoena
There is little to be gained by RGRC reproducing a copy of this subpoena. There will be no order as to discovery of it.
Classes 2 and 3: asset management plan and how the plan was implemented and compliance with regulations maintained
This category of documents is too broad. As I have noted, the Court is not engaged in a broad range inquiry as to RGRC’s management practices including compliance with unidentified regulations. It must focus closely the reasons for dismissal of Ms Schardijn. There will be no order for discovery of documents as to categories 2 and 3.
Class 4: assets information system
For the same reasons as to documents in classes 2 and 3, namely that the Court is not engaged in a broad ranging inquiry, a request for documents as to RGRC’s Assets Information System is too broad. Any alleged connection of these documents to the reasons for Ms Schardijn’s dismissal from employment is unexplained and too attenuated. There will be no order for discovery of documents as to RGRC’s Assets Information System.
Classes 5 – 10: aged care assets
A request for documents as to RGRC’s aged care assets and associated documents as to stock takes (category 8), registers (category 9) and inspection reports and assets reviews (category 10) is too broad. It may well be that RGRC must maintain these documents under regulations or legislation other than the FW Act. The court is not a forum for Ms Schardijn to mount some challenge to management practices at RGRC beyond her legal challenge to the reasons for her dismissal from RGRC. There will be no order for discovery as to documents in classes 5-10.
Class 11: Ms Schardijn’s recruitment
As to class 11 of the documents, I agree with the objection of RGRC set out in its Notice of Objection to subpoena. This case concerns reasons for dismissal, not reasons for recruitment. An order for discovery of this class of documents would not be likely to contribute to the fair and expeditious conduct of the proceedings.
Class 12: documents as to other employees
On balance, I do not consider that documents as to other named employees are of sufficient relevance to warrant an order for discovery of documents as to employment documents as to those employees. I have made this assessment by reference to the standard of whether allowing discovery of these documents would lead to the fair and expeditious conduct of these proceedings. There will be no order for discovery as to class 12 of the documents.
Class 13: documents as to probation reviews done for other employees
The request for documents is unlimited as to any time period. What occurred as to other unnamed employees is not of sufficient relevance to the issues that the Court must determine to justify an order for discovery as to class 13.
Class 14: record of a conversation
Class 14 of documents is directed to the “Record of a Conversation”. On the information provided, this document appears to be closely related to the decision to dismiss Ms Schardijn from employment. I propose to order that RGRC make discovery of it in hard copy and, on request by Ms Schardijn, in soft copy.
Class 15: documents as to the decision to dismiss
Category 15 is directed to the following class of documents:
Any documents given to the CEO when he signed my dismissal, showing how Natural Justice was respected and Due diligence carried out, in order to determine the veracity of the accusations made against me (soft copy of the final version saved as a WORD document).
RGRC does not object to producing the documents in answer to category 15.
I propose framing the order, with, I hope, greater clarity, to order that RGRC make discovery of documents as to its decision to dismiss Ms Schardijn from employment. Discovery of this class of documents is directly relevant to matters in dispute. The resources required to make discovery of this category of documents will not be disproportionate given the short time frame of Ms Schardijn’s employment from 13 June 2023 until 4 July 2023.
Class 16: any emails or text messages sent to Ms Schardijn by Mr Ingham as to a WH&S meeting on 23 June 2023
As RGRC does not object to production of documents in this category, I will make an order for discovery of this particular class of document. Whether Ms Schardijn received any emails or text messages is an issue distinct and separate from whether there are documents in the possession, custody or control of RGRC in the nature of emails or text messages.
Class 17: documents as to legal advice
The description of class 17 namely “any documents that show legal advice requested by Mr Hurst in regard to my dismissal” of itself discloses that the documents are almost certain to be legally professionally privileged and therefore not available for inspection by Ms Schardijn: see Evidence Act 1995 (Cth), s. 118(a). An order for discovery of privileged documents is not likely to contribute to the fair and expeditious conduct of the proceedings. I do not intend to make an order as to discovery of class 17.
THE ORDERS I PROPOSE
The first interlocutory application
In dealing with Ms Schardijn’s first interlocutory application, I will set aside the subpoena.
I will make a declaration that discovery is appropriate.
RGRC’s discovery
The documents to be discovered will be confined to documents relevant to this dispute and the discovery of which will contribute to the fair and expeditious conduct of the proceedngs. I will make orders as to documents as to complaints and/or inquiries Ms Schardijn made and as to documents as to the decision to dismiss Ms Schardijn from her employment. There will be particular orders as to emails or text messages as to the WHS meeting on 23 June 2023.
I will also make an order as to the “Record of a Conversation”. As there is an issue as to the veracity of this document, I propose to make an order that it be disclosed in soft copy and hard copy.
Ms Schardijn’s discovery
It is also appropriate that Ms Schardijn make discovery of limited classes of documents which are relevant to the compensation she seeks by discovering documents as to the steps she has taken to secure alternative employment and earnings in alternative employment since her dismissal by RGRC. There is no need for Ms Schardijn to disclose the identity of any new employer and the identity of the new employer may be redacted from any document she discloses. I have set out relevant documents I will order Ms Schardijn to discover in Attachment B.
I also propose that each party make discovery of any document in their possession which adversely affects their case.
The second interlocutory application: the application as to an IT expert
By an Application in a Proceeding filed 15 January 2024, the Applicant seeks the following interlocutory orders:
1.To allow access to [the Respondent’s] servers by an IT expert of my choosing.
2.To allow me to see all the document I asked in the subpoena as hard copies, in their original form, with enough attachments and accompanying documents to prove their veracity of the documents produced (invoice, receipts, purchase orders, signatures, proof that the signature is indeed for an employee of RGRC, etc…)
3.To appoint an IT person of RGRC to assist, guide and witness the activity of the IT expert.
4.I also ask the Court, that if granted permission to see the documents request in the subpoena, to make it possible for me to see the documents at the Respondent premises in Katherine […]
Ms Schardijn has expressed some concern about the veracity of documents which may be discovered. As she developed her argument, I understood that she sought details as to the “meta data” being the electronic data embedded in electronic documents. Software may assist in ascertaining the provenance of a document and whether any alterations or deletions have been made to a document’s original format: see i.e., Jarra Creek Central Packing Shed Pty ltd. v. Amcor Ltd [2006] FCA 1802, [11] -[12].
I intend no disrespect to either party in noting that the costs and time of the retention of IT experts in a case of this kind is not proportionate to the importance and complexity of the matters in dispute: FCFCOA Act, s. 190(2)(e).
In her oral argument, Ms Schardijn’s concern appeared to be focused (in the main) on a document called “Record of a Conversation” dated 23 June 2023. As already noted, I propose to order that a word version of this document be provided to Ms Schardijn which may enable some consideration of meta data embedded in the document. I expect the parties to liaise as to a pragmatic way in which this can be achieved.
I otherwise propose to dismiss Ms Schardijn’s second interlocutory application. Any such order is not proportionate to the costs it would entail in circumstances in which there is no cogent evidence before the court as to the serious allegation of any manipulation, let alone fabrication, of documents by any person at RGRC.
I will make orders accordingly.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 30 January 2024
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