Tran v Macquarie University

[2019] FCCA 1467

FEDERAL CIRCUIT COURT OF AUSTRALIA

TRAN v MACQUARIE UNIVERSITY [2019] FCCA 1467

Catchwords:
PRACTICE AND PROCEDURE – Discovery – matter set down for hearing – further application for discovery after initial application refused – whether it is in the interests of the administration of justice to allow the application – application refused.

Legislation:

Federal Circuit Court Act 1999 (Cth) s.45

Cases cited:

Abrahams v Qantas Airways Limited (No 2) (2007) 210 FLR 314

Vanden Driesden v Edith Cowan University (2012) 226 IR 452

Vinden v Wrong Fuel Rescue Pty Ltd & Anor [2019] FCCA 1091

Applicant: HIEN MINH THI TRAN

Respondent: MACQUARIE UNIVERSITY

File Number: SYG 3084 of 2017

Judgment of: Judge Humphreys

Hearing date: 22 May 2019

Date of Last Submission: 22 May 2019

Delivered at: Parramatta

Delivered on: 30 May 2019

REPRESENTATION

Counsel for the Applicant: Ms Doust

Solicitors for the Applicant: Hall Payne Lawyers

Counsel for the Respondent: Mr Brotherson

Solicitors for the Respondent: HWL Ebsworth

ORDERS

1. The application for discovery is dismissed.

2. Costs in the application are reserved.

DATE OF ORDERS: 30 May 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 3084 of 2017

HIEN MINH THI TRAN

Applicant

And

MACQUARIE UNIVERSITY

Respondent

REASONS FOR JUDGMENT

Introduction

1. Hi Minh Thi Tran commenced proceedings in this Court on 5 October 2017, seeking relief under the Fair Work Act 2009 alleging she was subject to adverse work action which resulted in her being made redundant rather than, as it was obligated to do under its Enterprise Agreement, seek to redeploy her

2. The matter is listed for hearing for four days in early July 2019 before myself. This is some 5 weeks away.

3. On 20 February 2019, Street J made a number of orders to ready the matter for hearing. They included the applicant to file all evidence by 27 March 2019, the respondent to file all evidence by 17 April 2019, written submissions and evidence in reply by the applicant by 1 May 2019 and any similar materials by 15 May 2019.

4. Critically, Street J declined to order discovery, ruling that:

   This Court does not ordinarily order discovery in matters under the Fair Work Act 2009 and in light of the above orders the Court is not satisfied that any discovery order is necessary.

5. Somewhat surprisingly, on 13 May 2019, the applicant filed an application in a case seeking discovery detailing 20 separate and expansive areas. The list includes such items as, for the calendar years 2010-2015, the number of help desk tickets dealt with by the applicant.

The Relevant Law

1. The relevant law has been most helpfully set out by Kendall J in Vinden v Wrong Fuel Rescue Pty Ltd & Anor [2019] FCCA 1091 (“Vinden”).

2. The starting point is s 45(1) of the Federal Circuit Court Act 1999 (Cth) ("the Act”) which states that:

   Interrogatories and discovery are not allowed in relation to proceedings in the Federal Circuit Court of Australia unless the Federal Circuit Court of Australia or a Judge declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.”

3. As Kendall J points out in paragraph 10 of Vinden:

   Overall, there is a reluctance in this Court to grant orders for discovery and interrogatories. Indeed, in Vanden Driesden v Edith Cowan University (2012) 226 IR 452, the Court referred to the power as one that is “rarely used”.

4. s 45(2) of the Act provides conditions that must be considered when making a declaration under s 45(1) of the Act, specifically s 45(2)(a) of the Act:

   Whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings.

5. At paragraph 14 of Vinden, Kendall J makes reference for the Court to consider the objects of the Act and to my mind in particular

   The resolution of the proceedings should be achieved justly, efficiently and economically; and

   ‘The Court should seek to avoid undue delay, expense and technicality.

6. At paragraph 15 of Vinden, Kendall J makes reference to a non-exhaustive list of considerations that may be considered as relevant by the then Federal Magistrate Lucev in Abrahams v Qantas Airways Limited (No 2) (2007) 210 FLR 314 at paragraph 25. These include:

   (a)     The relevance of any documents sought to be discovered;

   (b)     The volume of documents sought to be discovered;

   (c)     Whether there is a court book containing relevant documents, and the extent to which relevant documents are included in the court book;

   (d)     Whether discovery would narrow the issues;

   (e)     Whether both parties seek discovery;

   (f)      Whether there is consent to discovery;

   (g)     Whether discovery is “of benefit” to the litigation; and

   (h)     The effect of discovery on litigants; especially vulnerable litigants.

Considerations

1. This matter has been before the Court since 5 October 2017. An application for discovery covering much of the same material was denied by Street J on 20 February 2019.

2. The filing of all evidence relied upon and submissions is complete. The matter is listed for final hearing in approximately 5 weeks. In my view the filing of a further application for extensive discovery, given that the issue has been previously determined in the negative by Street J, is somewhat extraordinary.

3. Mr Brotherson, for the respondent, put to the Court that the time to reasonably respond to the discovery, if granted, would be 12 weeks. This would then involve the abandonment of the listed trial dates in July.

4. Furthermore, there is a high likelihood that leave would be sought to put in additional evidence and require further time, delay and expense.

5. In order for discovery to be ordered the applicant needs to show it is ‘appropriate in the interests of justice’.

6. In my view they have failed to do so. In effect, 5 weeks out from the trial date, they seek to restart the hearing preparation process. They seek discovery, which is opposed, in circumstances where the respondent does not seek discovery from the applicant. Discovery is sought to a very expansive range of documents.

7. There would be considerable cost on the part of the respondent in complying with the discovery sought if the orders sought were granted.

Conclusion

1. In my view, it would be contrary to the administration of justice to make the orders sought so close to the trial date and in circumstances where an application for discovery has been previously refused.

2. The application is dismissed.

3. Costs on the application are reserved.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Date: 30 May 2019