Stark v. Indigenous Business Australia
[2008] QSC 300
•21 November 2008
SUPREME COURT OF QUEENSLAND
CITATION:
Stark v Indigenous Business Australia [2008] QSC 300
PARTIES:
DAVID PAUL STARK
(plaintiff/applicant)
v
INDIGENOUS BUSINESS AUSTRALIA
ABN 25 192 932 833
(defendant/respondent)FILE NO:
SC No 9150 of 2003
DIVISION:
Trial Division
PROCEEDING:
Application
DELIVERED ON:
21 November 2008
DELIVERED AT:
Brisbane
HEARING DATE:
20 October 2008
JUDGE:
Mackenzie J
ORDERS:
1. Except in relation to that part of the application concerning document 9, the application is dismissed.
2. In relation to that part of the application concerning document 9, I order that there be further disclosure of copies of any advertisements of vacant positions of the kind referred to in s 1.1 of the Executive Summary of the Indigenous Business Consulting Two Monthly Report – July/August 2001.
3. The applicant pay the costs of the respondent of and incidental to the application to be assessed.
CATCHWORDS:
PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – DISCOVERY OF DOCUMENTS – ORDERS FOR FURTHER AN BETTER DISCOVERY – where the applicant sought further disclosure – where the respondents resisted disclosure – whether orders for further disclosure should be made
COUNSEL:
The applicant appeared on his own behalf
J E Murdoch SC for the respondentSOLICITORS:
The applicant appeared on his own behalf
Mallesons Stephen Jaques for the respondent
MACKENZIE J: The applicant Mr Stark has brought an application for further disclosure in rather complex proceedings against the defendant. Broadly the underlying proceedings are concerned with the termination in late 2001 of his engagement as a consultant by the Director of Indigenous Business Australia (“IBCS”), which was a consulting service established by the defendant. The proceedings have been in being since October 2003.
From time to time the pleadings have been amended. The current ones are the further amended statement of claim, the amended defence and the further amended reply. The history of issues that arose in relation to disclosure are summarised in the affidavit of Danyel Andrew Kynaston of 2 September 2008. Issues about the extent of the disclosure required to be made were not infrequent and this application is the culmination of that process.
One of the difficulties in the matter is that the process of identifying relevant documents has resulted in documents that have not previously been located later being identified and disclosed. That is probably not unusual in a complex proceeding, but, no doubt, can be of concern to the other party.
The respondent has provided its perception of the nature of the applicant’s claim and of its defence in a summary in its outline of argument. It is asserted that the main issues in the trial will be whether Mr Michel, the person responsible for employing him had represented to the applicant:
(a) that his employment was for a 2 year period;
(b) that in the event that the viability of IBCS was not established within 2 years, there would be an alternative position for him elsewhere within IBA; and
(c) in order to induce him to reject an alternative offer of employment, that the business of IBCS was likely to be profitable as demonstrated by a feasibility study and a business plan, that is to say that he represented a level of job security that was not justified in the circumstances.
The applicant prepared a helpful tabulation, supported by copies of relevant documents to enable his argument to be easily understood and the relevant documents accessed for that purpose. The tabulation gives a reference to the document as a result of which his request has been generated. It also describes documents which he says must be produced and the purpose to be served by any document to be produced. The tabulation also includes the respondent’s reasons for refusing his request.
As a consequence of an expression of concern that the exigencies of the Applications List on the particular day might require some limitation on the presentation of submissions, the applicant refined his request over the lunch adjournment to a smaller number of documents which he considered were of the most importance. He did not abandon his reliance on the other items included in the schedule but did not address specific submissions to them over and above what is in the schedule. The items with which he was particularly interested will be dealt with individually.[1] I now proceed to deal with the individual items.
Document 1.63 p 3 para 5
[1] They are identified with a yellow dot on the summary.
The document forming the basis for this request is a letter to the applicant dated
5 February 2002 signed by Mr Moroney. The particular part of the letter relied on is a reference to a major accounting firm being engaged to undertake risk assessment. The broad context of the passage relied on is that it comments critically on issues arising out of the preparation of a draft report by the applicant concerning internal risk management of IBA. The immediate context of the reference to engaging a “major accounting firm” is that that was done because there were concerns over the way the risk assessment review was being conducted by the applicant. The purposes of employing the accountants were said to be, firstly, to undertake a fresh investigation and, secondly, to advise on issues raised in the applicant’s draft report.
The applicant’s request was for a copy of the terms of engagement, their report and what their fee was. The purpose for which it was said to be required was that it was required by an expert witness to testify whether the applicant’s risk management work was appropriate and whether the accountants should have replaced him. The defendant’s response was that the documents were not directly relevant to any matter in issue in the pleadings.
In response to the defendant’s responses of 22 September 2008 to the applicant’s request, the applicant identified subparagraphs 6(a) to (g) of the further amended reply which replied to paragraph 16 of the defence. Subparagraphs 6(a) to (g) appear to be concerned, firstly, with defining the difference between risk management administration (also known as risk management planning) and risk management assessment. The remainder seem to be concerned with issues about the way that the applicant became engaged in the task he was required to do. I am not persuaded that the documents he seeks are relevant to those issues and no order for disclosure will be made.
Document 2.12 para 76
The document relied on as the basis for the request is the Report of Special Evaluation/Audit of Indigenous Business Australia (IBA) Governance – Indigenous Business Consulting Services Restructure. The part focused on says that the Board had not seen it appropriate to adopt a rigid approach to its investment strategies. The records indicated, however, that the Board had periodically reviewed its investment policies and its investment profile with a view to meeting the commitments in its corporate plan and to developing approaches to future investments. There was a footnote in the following terms:
“For example a comprehensive paper discussing IBA Investments was considered at a Board meeting on 15 December 2000 and a ‘discussion paper on investments and future IBA Investment direction’ was considered by directors at a planning day in October 2001.”
It is those documents that are sought. They too are said to be directly relevant to subparagraphs 6(a) to (g) of the further amended reply. The reason why it is said they are required is that the paper presented on 15 December 2000 was not supplied to the applicant for his risk management work. However, it may reveal why IBA did not comply with its legislative requirements to outline the strategies and policies it intended to adopt in order to achieve its objectives upon which the applicant reported in his report. The paper for the October 2001 planning day might reveal that IBA recognised the need to respond to the criticisms in his risk management report. The respondent says that the documents are not relevant to any matter in issue in the pleadings.
I am not persuaded that the documents are directly relevant to any matters in issue in the pleadings and no order for further disclosure will be made in respect of them.
Document 2.12 para 96
This derives from the same document as the previous issue. The reference is to a paragraph where it is stated that management did not provide the applicant’s report to the Board as it was not considered to be of a suitable standard for Board consideration. The accountant’s report was considered by the audit committee in May 2002 and advice was that it would be presented to an IBA Board meeting on 10 June 2002. The applicant seeks the agenda papers and minutes for those meetings for the purpose of getting an expert witness to assess whether the consultant’s work confirmed that his risk management report was not what was required. It is submitted that it is directly relevant to paragraphs 6(a) to (g) of the further amended reply. Having regard to the apparent purpose of these paragraphs, I am not persuaded that this is directly relevant to any matter in issue in the pleadings and no order for further disclosure will be made.
Document A4
The document founding this application is a Board Meeting agenda that refers to allegations made by the applicant in his report being referred to the Office of Evaluation and Audit. It also stated that, in addressing the two major allegations made in the applicant’s report, operational procedures had been updated. Also, the external consultants had identified 235 areas of potential risk.
The request was for the updated operational procedures and a copy of the report. The reason for the request was said to be that the applicant did not accept that records that justified termination of his employment were not available. The link between those documents and non-acceptance of the alleged absence of records is, to my mind, somewhat obscure. The documents sought are not obviously directly relevant to issues in the pleadings. I decline to make any order in respect of them.
Document B47 para 1
The document on which the application is based is a record of a discussion between Mr Doolan and Mr Myers. In context, the document says that IBCS was not meeting its targets. Subsequently, in the light of other developments, there was a further review. Then a decision to close IBCS was taken in January 2002. Immediately after that in the document, it is stated that the decision to terminate the applicant was based on his refusal to respond to a proposal for revised conditions of service rather than to the closure of IBCS. The applicant’s expressed desire to work for IBA would not be possible, for reasons given in the document.
In oral submissions, the applicant added the Board agenda papers to his request for a copy of the Board minutes evidencing the decision to close IBCS. He said he did not accept that such a statutory record was not available. The relevance of the documents was said to rest on subparagraph 7A(i) and subsequent subparagraphs of paragraph 7A which relate to a pleading by the defendant that the applicant had failed to mitigate his loss by not accepting an alternative remuneration package following the proposed restructuring of ABCS. The respondent’s response was that it had already produced all documents concerning the feasibility of IBCS that it had been able to locate after conducting reasonable searches and enquiries. It was also submitted that the requested document was not directly relevant to any matter in issue in the pleadings. As it turned out, from an email sent by the applicant after the argument had concluded, a further Board documents relating to the restructuring of his employment had been supplied not long before the hearing. There is no basis for making an order for further disclosure in the circumstances.
Document B59
The document generating this request is a memorandum addressed to “Ivan” by someone whose identity is not recorded in the document, which comments, in a rather defensive tone, on a “draft report”. In oral submissions, the applicant said that he would be content to have the name of the author or if that could not be enforced, “other documents that obviously accompany” the memorandum. The defendant’s response is that it has already provided all documents regarding the feasibility of IBCS and the Steering Committee records that it has been able to locate.
There is no compulsion to disclose information verbally. Subject to the continuing nature of the obligation, and in the absence of anything to suggest cogently that the defendant has not complied with its obligation, there is no basis established for an order for further disclosure to be made.
Document C41
The document relied on as a basis for this request is a strategic directions paper for CDCCS based on the rationale that CDCCS, to improve its performance by the end of 2001, was required to focus on achievable best results quickly. That might provide a foundation for wider vision at a later time. One item in the schedule was a section headed “Staffing Restructure” which included, as “subsidiary actions”, a change of remuneration arrangements for staff after obtaining legal advice, with a timetable aimed at concluding the process by 30 June 2001. The applicant seeks a copy of the legal advice for the reason that he wishes to obtain evidence of when the defendant decided that the terms of employment were inappropriate. The defendant’s response is that the request was speculative. The document referred to did not confirm the existence of another specified document. Even if written legal advice were obtained by IBA, it would be legally privileged. Both of these reasons advanced are an answer to the application. There is no basis for making a further order for disclosure.
Document 9
This document is an Executive Summary of, relevantly, a two monthly report for July and August 2001. It records as one material variation in the accounts, that expenditure on staff was under budget because although vacant positions were advertised they were not filled because there were no suitable candidates. The positions would be readvertised in November. The applicant wishes to have copies of the advertisements to see what time limitations on employment were being offered in June and November. The respondent says that they are not directly relevant to any matter in issue. The applicant says they are relevant to subparagraphs 7A(ii), (iii) and (iv) of the further amended reply which are concerned with the failure to mitigate his loss, pleaded in the defence. As I interpret the reply, it is suggested that the offer, when made, was in fact illusory and potentially detrimental to him. I consider that the requirement to disclose the job advertisements is somewhat borderline but prefer to err on the side of caution. Accordingly, I will order that relevant advertisements be disclosed.
Document 10
The source document is the operational report, apparently from the same Executive Summary that is the basis for the application relating to document 9. It records, inter alia, that the applicant was put on leave without pay. Mr Dodd was appointed on a short term contract to carry out specific assignments. The applicant seeks a copy of Mr Dodd’s contract to assess why he was engaged while the applicant was considered to be “excess capacity due to insufficient work”. It emerged during submissions that Mr Dodd was an expert in indigenous consulting. The applicant was manager of the consultants. The defendant’s response is that the document is not directly relevant to any matter in issue in the pleadings. I am not persuaded that it is directly relevant to any matter in issue in the pleadings. No order for further disclosure will be made.
Other requested documents
The focus of the application was principally placed, as it was conducted, on the documents already referred to. However, the applicant did not abandon his application with regard to the remainder of the documents and I have accordingly had regard to them. It may be noted that document 1.37 is concerned with a related question to that involved in relation to document 10 above. In the email sent after the hearing, previously referred to, the applicant also argued that the document referred to in Document 1.38, a draft AWA intended for his restructured position, must exist since there was a reference in information he had been given that terms and conditions for staff were to be confirmed through an AWA. The specific response by the respondent was that the new AWA was not in fact prepared. There is nothing that establishes that the response is implausible. There is no basis for making an order for further disclosure.
In the other cases, disclosure is resisted on a variety of grounds, sometimes in combination. They include:
(a) that the documents sought are not directly relevant to a matter in issue in the proceedings;
(b) that the application is speculative;
(c) that reasonable and diligent searches and enquiries have not found any further relevant documents;
(d) all documents relating to particular subjects have already been disclosed;
(e) in some instances additional documents have been identified and disclosed in the ordinary course of events; and
(f) legal professional privilege.
I have looked at the remainder of the documents not already specifically referred to. I am satisfied that none of them raise grounds for making an order for further disclosure.
The orders are as follows:
1. Except in relation to that part of the application concerning document 9, the application is dismissed.
2. In relation to that part of the application concerning document 9, I order that there be further disclosure of copies of any advertisements of vacant positions of the kind referred to in s 1.1 of the Executive Summary of the Indigenous Business Consulting Two Monthly Report – July/August 2001.
3. The applicant pay the costs of the respondent of and incidental to the application to be assessed.
0
0
0