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Bashour v Australia & New Zealand Banking Group Ltd et al (Human Rights) [2019] VCAT 1731 (4 November 2019)

Last Updated: 6 November 2019

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

HUMAN RIGHTS DIVISION

ORDER

In relation to the Applicant's discovery request the Tribunal heard objections based on irrelevance, but has not yet heard objections based on oppression, legal professional privilege or other grounds.

1. The Tribunal orders that the following requests are granted because of their relevance to matters arising from the application:

4, 14 to 16 inclusive, 20, 42, 43 and 2.3

2. Remaining discovery requests which have been objected to on other grounds include:

9, 37, 39, 40, 41, 81, 87, 102, 104 and 3.5.

These discovery requests are adjourned to a directions hearing to be heard by any member of the Tribunal.

3. The balance of the discovery request is denied on grounds of irrelevance to the application.

In relation to Document 18 (a file note of Dr De Pino, undated, subject of a subpoena and the subject of a claim for legal professional privilege over certain redacted parts of that document):

4. The Tribunal allows the release of Document 18 to the Respondents subject to the three redactions requested by the Applicant.

REASONS

BACKGROUND

1. Arising from her period of employment with the First Respondent, the Applicant claims various breaches under the Equal Opportunity Act 2010 on the grounds of pregnancy and disability. The proceedings are, after five years of litigation, nearing settlement or hearing. The proceedings have been protracted because of the course that the litigation has taken through other fora and because of the delicate state of the Applicant’s health and its impact on her capacity to conduct proceedings from time to time since she commenced.
2. The Applicant made an application for discovery by the various Respondents of over 120 categories of documents. The Respondents had objected to discovery of most categories of documents, many on the grounds of relevance. Other objections related to oppression and legal professional privilege. Due to the late service of affidavits by the Respondents, the arguments in relation to oppression and legal professional privilege were adjourned for later hearing. Submissions on 16 September 2019 and my order dated 25 September 2019 related only to the categories of documents that the Applicant claimed in discovery and the Respondents objected on the grounds of relevance.

THE REQUEST FOR A STATEMENT OF REASONS

3. Section 117(1) of the Victorian Civil and Administrative Tribunal Act 1998 expressly excludes the requirement for the Tribunal to provide a statement of reasons for interim orders. I consider that an order about discovery is an interim order and that I am not bound to provide such a statement. If I were, section 117 extends a 45-day period in which to give such reasons. The Applicant has urged, however, that because of the approaching litigation and conciliation timelines I should give the reasons ‘as soon as possible.’ Perhaps cognisant that I cannot be compelled to give a statement of reasons, the Applicant referred me to  section 8  of the  Administrative Law Act 1978 . Curiously, that section also expressly excludes this Tribunal from its operation in  subsection 8(6). 
4. Additionally, in my order on 16 September 2019 I indicated in clauses 6 and 8 that statements of reasons would not be available. The reason, accepted by counsel for both parties at the hearing, was that I would be on leave from 2 to 25 October 2019 and that the orders were required as early as possible to assist in preparation for compulsory conference and hearing.
5. The request for a statement of reasons was first made at a hearing on 28 October 2019 before me. At that hearing, I discovered that the order produced on 25 September 2019 had, most unfortunately, not been distributed from the registry to the parties. On subsequently learning of the terms of the order during that hearing, and contrary to the usual standards expected of counsel, counsel for the Applicant (at this stage expressly without instructions from his client) made repeated references to ‘challenges’ to my decision, intimating appeal. I requested that he make the request in writing to give time for consideration of my obligations to give reasons.
6. Noting that an appeal has been threatened and for the assistance of a potential judge on appeal or for counsel to give consideration to the merits of an appeal, I have decided to provide a statement of reasons outside of the requirement to do so and will attempt to do so ‘as soon as possible’. I record that I have, even Monday 4 October, received emails from the Applicant seeking urgent delivery of these reasons despite still being well within statutory timeframe for the delivery of the reasons, if such a time limit applied.
7. Because of the time constraints and the pressure brought upon me by the Applicant to produce these reasons quickly, I do not intend to give individual treatment to each category of documents, but to explain the yard-stick by which I assessed each category of documents for its relevance. For the same reasons, I do not intend to repeat the legal arguments and submissions that were presented to me other than in summary.
8. The Applicant directed the Tribunal to the Applicant’s amended points of claim, together with 10 witness statements (three of which were written by the Applicant). The Applicant also provided the Tribunal with the correspondence exchanged between the parties in relation to discovery. The Respondents made submissions. I carefully took into account all written materials and all arguments advanced to me at hearing in coming to my determination.

THE DISCOVERY REQUEST

9. Orders relating to discovery in February 2019 were not actioned by the Applicant. After a directions hearing on 11 June 2019, I made an order on 8 July 2019 for the Applicant to provide to the Respondents a list of documents for discovery by 25 July 2019. I set out a timetable for provision of undisputed documents and for notification of objections by the Respondents. The requests for discovery were made by the Applicant on 25 July, 26 July and 4 September 2019.
10. Most of the discovery requests are in quite broad form. As a random example, category 75 requests:

Any emails to human resources in January to May 2009 regarding the Group 4.1 role of Regulatory Change & Policy Manager, including the job mandate.

11. Others, such as categories 88 and 89, make specific reference to emails by date, author and title.
12. Prior to the hearing, the parties reached agreement in relation to three categories of documents.

DETERMINING THE ‘YARD-STICK’ FOR RELEVANCE:

13. I shall outline the arguments of counsel in brief:
14. Relying on various authorities, Mr Harmer, counsel for the Applicant, urged me to allow discovery on any category of documents which was capable of leading to a ‘line of enquiry’. Mr Harmer referred to the case being one of ‘straws on a back’ and the need for comparative materials relating to like employees to establish indirect discrimination. He stated that the test for allowing discovery was that there be a forensic purpose that would either relate to the pleading or relate to the veracity, credibility or weight of materials. He argued that a legitimate line of enquiry would be the relative credibility of a witness or witness statement. In the hearing, I requested that Mr Harmer provide me with authority that discovery could relate to a line of enquiry solely about the credibility of a witness. He agreed to provide me with such authority after the hearing but has not.
15. Ms Doyle argued that there was no analogy between these proceedings and the Federal Court authorities that Mr Harmer relied upon, noting that the Tribunal is not usually a forum of pleadings or discovery. She argued that the tests to be applied were about fairness and efficiency in the proceedings, especially so late in the life of the proceedings and an overarching obligation ‘to move on’. She cited the Deputy President’s comments when discovery was advanced on 19 February 2019 that the discovery process needed to be dealt with ‘very promptly and efficiently’ and her expressions of concern that a very general discovery process might ‘open up a very, very time consuming, lengthy process.’ Ms Doyle referred to the high degree of ‘drift’ that had occurred between the initial intention behind the discovery exercise and the three extensive requests that were received. Ms Doyle also referred to the voluminous documents already amassed in affidavits, statements annexures and tribunal books (over 6000 pages of documents to date) so far in these proceedings.
16. I do not accept, as Mr Harmer urged me to, that any issue in evidence between the parties may lead to a ‘line of enquiry’ capable of founding a request for discovery.
17. I note Forrest J in Liesfield v SPI Electricity Pty Ltd & Ors (Ruling No 1)^[1], he said:

[Any] order relating to discovery should be directed to finding the most efficient, effective and economical management of the discovery exercise, bearing in mind the nature and complexity of the trial.

18. In Volunteer Fire Brigades Victoria v CFA (Discovery Ruling)^[2], he similarly said:

However, a fair trial is not a perfect trial. It is, rather, the best trial that a court can provide to the parties within reason and in proportion to the issues in dispute and the court’s resources. Accordingly, demands for discovery of documents which are peripheral to the central issues cannot be entertained. The Court is obliged to focus on the central issues as best it can be determined at this point in the litigation. (emphasis added)

19. Taking into account: the late stage of proceedings, the vast amount of materials already exchanged, the vast amount of materials requested by the Applicant in discovery and the need for there to be some specificity and finality in the proceedings, I considered that there must be a level of proximity to an issue in the pleadings.
20. The Applicant’s amended points of claim are detailed and extensive and the Respondents’ pleadings reply to them. Accordingly, the ‘yard-stick’ I used to determine in relation to each individual category in the request for discovery was whether it:
    1. related to an issue that is identifiable from the pleadings, even if only remotely so (if so, I would allow discovery); or
    2. related to an issue which was not raised in the pleadings, but only in the affidavits of the witnesses (if so, I would not allow discovery).
21. I found that the vast majority of the categories in the Applicant’s request fell into category (b), meaning they are peripheral to the central issues and cannot be entertained.
22. Of particular note, Mr Harmer referred to a range of the categories which were sought to disprove assertions made in the statement by Ms Dunlop. Ms Dunlop is an employee of the First Respondent who has deposed in response to an affidavit by an expert retained by the Applicant, Mr Dell.
23. Mr Dell has deposed as to the likely career progression of the Applicant and her likely financial loss as a result of the alleged breaches of Equal Opportunity Act 2010. Ms Dunlop’s statement rebuts some of the assumptions and calculations made by Mr Dell. Various categories of documents sought in discovery by the Applicant related to disproving assertions in Ms Dunlop’s statement by reference to the career progression of persons unrelated to the proceedings. I did not accept that a statement by a lay witness, called to rebut the evidence of the Applicant’s expert witness gave rise to any legitimate lines of enquiry that had sufficient proximity to the pleadings. I agreed with counsel for the Respondents that such enquiries are best addressed in cross-examination rather than in discovery.
24. On a document by document basis, where I have refused discovery of documents or categories of documents not covered in the general statements set out above, I preferred the arguments of the Respondents to those of the Applicant.

A. Smith
Member

^[1] Liesfield v SPI Electricity Pty Ltd & Ors (Ruling No 1) [2013] VSC 634; (2013) 43 VR 493 [25].

^[2] Volunteer Fire Brigades Victoria v CFA (Discovery Ruling) [2016] VSC 573.