Toby Tucker v State of Victoria (State Revenue Office)
[2021] FWCFB 8
•4 JANUARY 2021
| [2021] FWCFB 8 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Toby Tucker
v
State of Victoria (State Revenue Office)
(C2020/7705)
VICE PRESIDENT CATANZARITI | SYDNEY, 4 JANUARY 2021 |
Admission of new evidence – application for an order for the production of documents to the Commission – appeal against decision [2020] FWC 5252 of Deputy President Young at Melbourne on 30 September 2020 in matter number U2019/8416.
[1] This decision concerns a Notice to Produce order (Order) made by the Full Bench on 14 December 2020 following an application made by Mr Toby Tucker (the Appellant) for an order for the production of documents to the Commission (Form F52). On 15 December 2020, the Appellant requested that the Full Bench publish detailed reasons concerning the issuance of the Order.
[2] On 15 October 2020, Mr Toby Tucker (the Appellant) lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (the Act) against a Decision 1 of Deputy President Young (Deputy President) issued on 30 September 2020. The Commission issued a decision on 26 November 2020 granting the State of Victoria (State Revenue Office) (the Respondent) permission to be legally represented at the hearing before us.2
[3] The Decision dealt with an application filed by the Respondent to dismiss the Appellant’s application for an unfair dismissal remedy pursuant to s 399A(1)(c) of the Act. In the Decision, the Deputy President was satisfied that the Appellant’s application had no reasonable prospects of success and therefore dismissed the Appellant’s application pursuant to s 578(1)(c) of the Act.
[4] The Appellant filed submissions in support of the Form F52 on 4 December 2020. The Respondent made submissions on 11 December 2020 opposing the Form 52.
[5] In support of the Form F52, the Appellant submitted:
• the Full Bench should infer that the production of the requested documents would not have assisted the Respondent’s case;
• the documents requested will impugn the accuracy of Ms Ford’s evidence; and
• the Respondent has already waived privilege for the documents requested.
[6] The Respondent objected to the Form F52 on the following grounds:
• there is no new evidence which impugns Ms Ford’s evidence;
• the Respondent has not waived client legal privilege; and
• the Appellant’s application to rely on the produced documents on appeal has no prospects of success.
Relevant legislative provisions and principles
[7] By filing the F52 Form, the Commission is required to provide permission for the Appellant to adduce new evidence 3. The relevant principles concerning admitting new evidence in an appeal were helpfully summarised by a Full Bench of the Commission in C Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149:
“[21] The usual principles for the admission of new evidence in an appeal, set out in numerous decisions of the Commission, apply the approach in Akins v National Australia Bank. They are, in summary, that first it must be shown that the evidence could not have been obtained with reasonable diligence for use at first instance; secondly, the evidence must be such that there is a high degree of probability that there would have been a different outcome; and, thirdly, the evidence must be credible.
[22] As noted by the Full Bench in Harvey v Australian Injecting & Illicit Drug Users’ League, an “appeal bench would not usually admit evidence which could have been called at first instance. That approach is grounded in an important policy consideration, namely, that an appeal should not be an opportunity for parties to remedy avoidable deficiencies in the evidence” adduced in the proceedings.” [citations omitted]
[8] Furthermore, the Form F52 was made under s 590 of the Act, which relevantly provides as follows:
“(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.
(2) Without limiting subsection (1), the FWC may inform itself in the following ways:
…
(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC.”
[9] The Fair Work Commission Rules 2013, provide that a party in a matter before the Commission may, by lodging a draft order, request that the Commission inform itself in relation to the matter, by issuing an order requiring a person provide copies of documents or any other information to the Commission.
[10] In Kennedy v Qantas Ground Services Pty Ltd t/a Qantas Ground Services Pty Ltd, Qantas Group[2018] FWCFB 3847 (‘Kennedy’), the Full Bench set out the principles applying to the issue of orders for production under s 590(2)(c) of the Act at [23]:
“The power conferred by s.590(2)(c) is a discretionary one to be exercised for the purpose of the Commission informing itself as to a matter before it. The Commission will be guided in the exercise of its discretion by the practice followed by courts in civil proceedings when issuing subpoenas. The documents sought must have apparent relevance to the issues in the proceedings. Access to the documents sought must be for the purpose of supporting a case which is intended to be advanced, not to explore if there is a supportable basis for a case that might potentially be advanced. The documents required to be produced must be described with sufficient particularity, and the burden of producing them must not be oppressive.” [footnotes omitted]
Notice to Produce to Maddocks Lawyers
[11] In our Order, we directed Maddocks Lawyers (the Respondent’s representatives) to produce the following documents:
“1. The invoice/s referred to in the oral evidence of Courtney Jayne Ford at Ts PN-183.
2. The file note/s referred to in the oral evidence of Courtney Jayne Ford at Ts PN-156.
3. Any other documents or communications referring or relating to the phone call referred to in the oral evidence of Courtney Jayne Ford at Ts PN-144.”
Consideration
[12] We note that in some circumstances the principles set out in C Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 concerning the admission of new evidence on appeal have not been strictly applied, 4 and we are satisfied in the circumstances before us that a departure from such principles is justified.
[13] Having regard to the various submissions of the parties, the Full Bench is of the view that the documents listed in the Form F52 ought be produced on two bases. First, the production of such documents would assist in the determination of the appeal. On appeal, the Appellant contends that the Deputy President erred in finding that the parties intended to create binding relations to settle the proceeding on 13 November 2019. In resolving this question, the Full Bench is of the view that documentation surrounding the telephone conversation between Mr Francis (the Appellant’s former legal representative) and Ms Ford (the Respondent’s legal representative) (Telephone Conversation) will assist in ascertaining whether the parties intended to create binding legal relations. Contrary to what is contended by the Respondent, the Full Bench does not accept that a conversation between the legal representatives of the two parties would be subject to legal professional privilege.
[14] Second, it is in the interests of justice that the documentation is produced. Whilst we note that the Appellant is a qualified lawyer, he was self-represented in the hearing before the Deputy President on 5 August 2020 (August hearing). From our reading of the transcript of the August hearing, the Appellant appeared to misunderstand whether documentary evidence surrounding the Telephone Conversation would be subject to legal professional privilege. In such circumstances, the Appellant appeared confused about whether it was permissible to formally press for production of the documents or whether it was incumbent upon the Respondent to produce such evidence to corroborate the evidence of Ms Ford. Accordingly, notwithstanding that the evidence was able to be produced at first instance, justice would be served if the requested documentation is made available for the appeal proceedings.
[15] Having regard to s 590 of the Act and the principles enunciated in Kennedy, the documents required to be produced in the Form F52 were done so with sufficient particularity. Furthermore, we do not consider that the production of such documents would be oppressive to the Respondent; it is accepted by the Respondent that the documents exist.
Conclusion
[16] Accordingly, Maddocks Lawyers is directed to produce the documents referred to in the aforesaid Order.
VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR725943>
1 Toby Tucker v State of Victoria (State Revenue Office)[2020] FWC 5252.
2 Toby Tucker v State of Victoria (State Revenue Office)[2020] FWCFB 6354.
3 Fair Work Act 2009 (Cth), s 607(2)(a).
4 J.J. Richards & Sons Pty Ltd v Transport Workers' Union of Australia[2010] FWAFB 9963, [95].
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