Slaven v Equinix Australia Pty Ltd

[2014] FCCA 1720

FEDERAL CIRCUIT COURT OF AUSTRALIA

SLAVEN v EQUINIX AUSTRALIA PTY LTD [2014] FCCA 1720

Catchwords:
PRACTICE AND PROCEDURE – Access to documents produced in answer to notice to produce – whether access should be granted to documents produced that were relevant at the time the notice to produce was served but are no longer relevant to any issue in the proceedings.

Legislation:

Fair Work Act 2009, s.340(1)(a)(iii)

Applicant: PAUL JAMES SLAVEN

Respondent: EQUINIX AUSTRALIA PTY LTD

File Number: SYG 766 of 2014

Judgment of: Judge Manousaridis

Hearing date: 1 August 2014

Delivered at: Sydney

Delivered on: 4 August 2014

REPRESENTATION

Counsel for the Applicant: Mr N Furlan

Solicitors for the Applicant: Harmers Workplace Lawyers

Counsel for the Respondent: Mr B Cross

Solicitors for the Respondent: Piper Alderman

ORDERS

1. Until further order of the Court, access to the documents produced by the applicant, a copy of which is contained in the folder titled “Confidential Exhibits to the Affidavit of Gregory Robertson”, be restricted to the access the applicant has already given to the legal representatives of the respondent subject to the terms on which such access has been granted.

2. Should any party wish to apply for an order for costs of the application for access to the documents referred to in order 1:

   (a)such application must be made by 11 August 2014 by the party by  sending by email to the associate to Judge Manousaridis and to the other party submissions setting out the order sought, the grounds on which the order is sought, and whether the party is content for the question of costs being determined without any oral hearing; and

   (b)by 18 August 2014, the party to whom submissions under paragraph (a) are served must send by email to the associate to Judge Manousaridis and to the other party submissions in reply, and stating whether that party is content for the question of costs being determined without any oral hearing.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 766 of 2014

PAUL JAMES SLAVEN

Applicant

And

EQUINIX AUSTRALIA PTY LTD

Respondent

REASONS FOR JUDGMENT

1. This matter was listed for directions before me on 1 August 2014 pursuant to a liberty to apply I reserved to the parties.

2. What brought the matter before me was a dispute about access to documents called for by a notice to produce the respondent served on the applicant on 12 May 2014. The applicant claimed that the documents called for by the notice to produce were confidential, and that access should be restricted to the respondent’s legal representatives.

3. The notice to produce called for the production of two classes of documents. The first was pay slips or documents of a similar nature that record income or other remuneration the applicant earned after 18 December 2013, being the date on which his employment with the respondent was terminated. The second class are documents recording the terms of any employment contract the applicant entered into after the termination of his employment with the respondent.

4. The documents called for by the notice to produce are apparently relevant to the claim made in the initiating documents the applicant filed with the Court. In those documents, the applicant claimed that on 18 December 2013 the respondent terminated his employment in contravention of s.340(1)(a)(iii) of the Fair Work Act 2009 (Cth) as a consequence of which he suffered loss. The applicant further claimed that his losses fell under four heads.

5. The first is loss of income in the amount of $40,846.90 from 18 December 2013 to 21 March 2014. The second head of damage is loss of superannuation contribution in the amount of $3,778.34 for the same period. The third is loss “of future salary and loss of earning capacity, including loss of superannuation and loss of opportunity for promotion”. And the fourth head of damage is general damages “in respect of offence, humiliation, distress, anxiety, embarrassment, dislocation to life and damage to personal and professional reputation”.

6. The applicant produced to the Court, and tendered into evidence, subject to a claim of confidentiality, the documents that fall within the scope of the notice to produce. These did not include documents in relation to employment for the period before 7 April 2014. The applicant says he was not employed for that period. The documents the applicant did produce related to employment he commenced on 7 April 2014.

7. Counsel for the applicant informed the Court that the applicant was no longer claiming damages for loss after 7 April 2014. I understand this statement to mean that the applicant is no longer claiming compensation for the third head of damage. For that reason, counsel for the applicant submitted the documents the applicant did produce are now not relevant, and, therefore, the respondent should not have access to them. Alternatively, counsel submitted that the documents are confidential and access should be restricted to the respondent’s lawyers.

8. In my opinion, given the applicant no longer claims he suffered any loss after 7 April 2014, and the documents the applicant produced only relate to his employment after 7 April 2014, the documents are not relevant to the applicant’s claims for compensation. Access to the documents, therefore, should be restricted to the respondent’s legal representatives to whom, I understand, access was granted on the basis of undertakings to keep the documents confidential.

9. For these reasons, I do not propose to order that the respondent be given access to the documents the applicant produced in answer to the notice to produce beyond the access the applicant has already given to the legal representatives of the respondent.

10. I will make directions for the filing of submissions on costs should any party wish to apply for an order for costs.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 4 August 2014