Andrade v Goodyear & Dunlop Tyre (Aust) Pty Limited [2017] FCCA 497 (17 March 2017)

Last Updated: 28 September 2017

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANDRADE v GOODYEAR & DUNLOP TYRE (AUST) PTY LIMITED

[2017] FCCA 497

Catchwords: PRACTICE AND PROCEDURE – Subpoena – objection – whether legitimate forensic purpose.

Legislation: Fair Work Act 2009 (Cth), ss.340, 341, 342, 361 Federal Circuit Court of Australia Act 1999 (Cth), s.45

Cases cited: Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212; [2011] FCAFC 14 Ermel v Duluxgroup (Australia) Pty Ltd (No.2) [2015] FCA 17 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 Comcare v John Holland Rail Pty Ltd (No.5) [2011] FCA 622; (2011) 283 ALR 111; [2011] FCA 622 Commissioner of Police v Hughes [2009] NSWCA 306 Cosco Holdings Pty Ltd v Commissioner of Taxation [1997] FCA 1504; (1997) 37 ATR 432 Dorajay Pty Ltd v Aristocrat Leisure [2005] FCA 588 Fried v National Australia Bank (2000) 175 ALR 194; [2000] FCA 911 General Motors-Holden Pty Ltd v Bowling (1976) 51 ALJR 235 Gloucester Shire Council v Fitch Ratings, Inc [2016] FCA 587 Harwood v Trustees of the Property of John Mervyn Harwood (2015) 297 FLR 159; [2015] FCCA 1058 Liristis v Gadelrabb [2009] NSWSC 441 McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233; (2005) 221 ALR 785; [2005] FCA 1233 Milardovic v Vemco Services Pty Ltd [2016] FCA 19 NSW Commissioner of Police v Tuxford & Ors [2002] NSWCA 139 Principal Registrar of the Supreme Court of New South Wales v Tastan (1994) 75 A Crim R 498 Re Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90; [1989] FCA 248 Shea v TRUenergy Services Pty Ltd (No.6) (2014) 314 ALR 346; [2014] FCA 271 Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 Stanley & Anor v Layne Christensen Company & Ors [2004] WASCA 50 Tamawood Limited v Habitare Developments Pty Ltd [2009] FCA 364 Thomas v SMP (International) (No.2) [2010] NSWSC 870 Wong v Sklavos (2014) 319 ALR 378; [2014] FCAFC 120

Applicant:

RUI ANDRADE

Respondent:

GOODYEAR & DUNLOP TYRE (AUST) PTY LIMITED

File Number:

SYG 1749 of 2015

Judgment of:

Judge Barnes

Hearing date:

6 February 2017

Date of Last Submission:

27 February 2017

Delivered at:

Sydney

Delivered on:

17 March 2017

REPRESENTATION

Counsel for the Applicant:

Mr Eurell

Solicitors for the Applicant:

Carroll & O’Dea

Counsel for the Respondent:

Mr Donaghey

Solicitors for the Respondent:

Hentys Lawyers

ORDERS

(1) The Respondent’s Application to strike out paragraphs 5, 6, 10 and 12(c) of the Applicant’s subpoena issued on 29 December 2016 be dismissed.
(2) The time for compliance with the subpoena be enlarged to 30 March 2017.

FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY

SYG 1749 of 2015

RUI ANDRADE

Applicant

And

GOODYEAR & DUNLOP TYRE (AUST) PTY LIMITED

Respondent

REASONS FOR JUDGMENT

Background

1. On 26 June 2015, Mr Andrade commenced proceedings under the Fair Work Act 2009 (Cth) (the FW Act) against Goodyear & Dunlop Tyres (Aust) Pty Ltd (Goodyear). Relevantly, in a Further Amended Statement of Claim (the SoC) filed on 14 October 2016 he alleges, inter alia, breaches of either the General Retail Industry Award 2010 or the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (in particular by way of underpayment of rates of pay) which are said to constitute contraventions of the FW Act. He also alleges that Goodyear engaged in adverse action in contravention of the general protection provisions in Part 3-1 of the FW Act.
2. Goodyear relies on an Amended Defence filed on 5 October 2016.
3. On 29 December 2016 prior to the filing of affidavit evidence, a subpoena for production was issued at the request of Mr Andrade directed to the Respondent Goodyear, requiring production of 14 categories of documents on or before 12 January 2017.
4. After an exchange of correspondence between the solicitors for the parties, Goodyear filed an Application in a Case on 17 January 2017 seeking orders to set aside the subpoena and for discovery in generally expressed terms or orders striking out certain paragraphs of the subpoena.
5. Goodyear now relies on an Amended Application in a Case filed on 8 February 2017 which is the subject of this judgment. It seeks that four paragraphs of the subpoena be struck out and that otherwise the time for compliance with the subpoena be enlarged. Discovery is no longer sought. Goodyear relies on affidavits of David John Marks, a legal executive with the solicitors for Goodyear, of 17 January 2017 and 2 February 2017.
6. Mr Andrade relies on an affidavit of Veronica Feng Lee, solicitor, affirmed on 3 February 2017.
7. The paragraphs in the subpoena to which the Respondent takes objection are as follows:
   • 5. All documents and records evidencing all managerial directions, instructions, duties summaries, and task lists, given by the Respondent to the Applicant during the Periods.
   • 6. All documents and records evidencing the Respondent’s performance reviews of the Applicant undertaken during the Periods.
   • 10. All documents and records evidencing the use of the Respondent’s AFF scheme, by the Respondent’s employees at the Respondent’s Rutherford store, during the Periods.
   • 12. Copies of the extracts of the Audit Reports referred to at paragraph 45B of the Respondent’s Amended Defence, where such extracts relate to:
   • ...(c) The use of the AFF scheme through the Respondent’s organisation.
8. Mr Andrade presses for production of each category of documents. It was submitted that the subpoena has a legitimate forensic purpose in that it is “on the cards” that the documents would assist in the determination of the dispute.
9. Goodyear contends that the disputed items lack legitimate purpose as the material sought is of no utility as it has no role to play in the substantive proceedings or that seeking such material is an abuse of process. In the alternative, Goodyear seeks that the Court “refuse” the disputed items on the basis that the tendency of the material sought is to invoke evidence which is not relevant to the main issue; because the subpoena is being used in place of discovery to seek credit or cross-examination material; and because of the early point in the proceedings at which the subpoena has been issued.

General Principles

10. A party who issues a subpoena for production must, when challenged, be in a position to identify the legitimate forensic purpose for which access to documents is sought (see Principal Registrar of the Supreme Court of New South Wales v Tastan (1994) 75 A Crim R 498 per Barr AJ at 504, cited with approval by Brownie AJA in NSW Commissioner of Police v Tuxford & Ors [2002] NSWCA 139 at [22]). It is necessary to determine the apparent relevance of the categories of documents in issue by reference to the matters in issue in the proceedings.
11. The parties are in agreement that the test for whether there is a legitimate forensic purpose for the issue of a subpoena is as stated by Beaumont J in Re Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90; [1989] FCA 248. His Honour considered (at [44]) that the test is:
    • (1) Does the material sought have an apparent relevance to the issues in the principal proceedings, i.e., is adjectival, as distinct from substantive, relevance established? This involves a consideration of the matter from the standpoint of [the issuing party] (2) Is the subpoena seriously and unfairly burdensome or prejudicial? This is to look at the matter from the point of view of [the party subpoenaed].
12. The onus is on Mr Andrade to identify a legitimate forensic purpose for which access to the disputed categories of documents is sought. There was some disagreement between the parties as to formulation of the applicable test in relation to the connection of the documents sought with the subject matter of the proceedings, in particular whether the Court must consider whether it is “on the cards” that the documents sought will materially assist the issuing party’s case.
13. It is clear from the authorities that, as Goodyear submitted, the expression “on the cards” is but one formulation of the test in relation to determining apparent or adjectival relevance.
14. In Tamawood Limited v Habitare Developments Pty Ltd [2009] FCA 364, Collier J found at [13] that “it may be enough that it appears to be “on the cards” that the documents will materially assist the applicant”, citing Alister v R [1984] HCA 85; (1984) 154 CLR 404; cf R v Saleam [1999] NSWCCA 86 at [11]. Her Honour made this observation in the context of summarising the principles governing the grant of leave by the Court to issue subpoenas (as considered in detail by Greenwood J in McIlwain v Ramsey Food Packaging Pty Ltd (2005) 221 ALR 785; [2005] FCA 1233), including that the category of documents must not be so wide as to be oppressive; that adjectival relevance looks towards the possibility of whether the material sought could reasonably be expected to “throw light” on some of the issues of the principal proceedings; and that the issuing of a subpoena cannot be used for the purposes of “fishing” (see Tamawood at [12]).
15. Insofar as adjectival relevance is in issue, the test, broadly speaking, may be expressed as whether the documents sought are “reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case” (see Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 927 cited in Dorajay Pty Ltd v Aristocrat Leisure [2005] FCA 588 at [17]). In Cosco Holdings Pty Ltd v Commissioner of Taxation [1997] FCA 1504; (1997) 37 ATR 432, the test for whether a subpoena has a legitimate forensic purpose was put by Spender J at 439-440 in terms of whether the material may “throw light” on at least some of the issues in the principal proceedings.
16. In Commissioner of Police v Hughes [2009] NSWCA 306, Young JA found (at [78]) that while in some cases it will be sufficient to establish that it is “on the cards” that documents will materially assist an applicant’s case,“[i]n other cases, the circumstances will dictate a closer scrutiny of the reason advanced for the subpoena.”
17. As Wigney J remarked in Gloucester Shire Council v Fitch Ratings, Inc [2016] FCA 587 at [22], “[t]he law concerning subpoenas is one of those areas of law where metaphors abound”. The principles concerning the requirement for subpoenaed documents to have apparent relevance to an issue in a proceeding were helpfully summarised by the Full Court of the Federal Court in Wong v Sklavos (2014) 319 ALR 378; [2014] FCAFC 120 at [12] as follows:
    • ... in our opinion, the applicable principles are well established. The party issuing a subpoena bears the onus of demonstrating that the subpoena has a legitimate forensic purpose in relation to the issues in the proceedings: Santos Ltd v Pipelines Authority (SA)(1996) [1996] SASC 5578; 66 SASR 38 at 52. A subpoena may be set aside if it requires the production of documents which do not have apparent relevance to the issues arising on the pleadings: Trade Practice Commission v Arnotts Ltd (No 2)(1989) 88 ALR 90; Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) [2010] FCA 398 ; (2010) 269 ALR 76 at [39]–[40]; McHugh v Australian Jockey Club Limited [No 2] [2011] FCA 724 at [13]; McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233 ; (2005) 221 ALR 785 at [35]; Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 558 at [17]. Other cases have used different terminology, but with essentially the same effect, for example, by requiring that, viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative (R v Barton(1981) 2 NSWLR 414 at 420), or that the material sought is reasonably likely to add in some way to the relevant evidence in the case (Spencer Motors Pty Ltd v LNC Industries Ltd(1982) 2 NSWLR 921 at 927), or that it be “on the cards“ that the documents sought will materially assist the party at whose request the subpoena has been issued: Allister v R(1984) [1984] HCA 85; 154 CLR 404 at 414; Tamawood Ltd v Habitare Developments Pty Ltd [2009] FCA 364 at [13], [35]–[38].
18. However formulated, it is clear that requirement of apparent relevance is less stringent than the test of relevance in the context of considering the admissibility of evidence (see Gloucester Shire Council at [23]). It “does not require that a party demonstrate direct relevance to the contest between the parties. Rather the documents must have some potential relevance to the pleadings as they stand” (McIlwain v Ramsey Food Packaging Pty Ltd (2005) 221 ALR 785; [2005] FCA 1233 at [35] per Greenwood J).
19. The issue of a subpoena that is not used for a legitimate forensic purpose may be an abuse of process (Dorajay at [17] and see Spencer Motors Pty Ltd at 927 per Wardell J).
20. As pointed out by Beaumont J in Arnotts at [44] it is also relevant to consider whether the subpoena is “seriously and unfairly burdensome or prejudicial” or otherwise oppressive.
21. The parties were not in dispute that challenging credit can be a legitimate use of a subpoena. In Liristis v Gadelrabb [2009] NSWSC 441, Brereton J observed at [5] that “subpoenas, unlike discovery, may be used to obtain documents relevant only to questions of credit, for the purpose of assisting cross-examination as to credit”. Goodyear referred to the decision of Weinberg J in Fried v National Australia Bank (2000) 175 ALR 194; [2000] FCA 911, in which his Honour remarked at [29] that “[i]t is not appropriate, in my view, for a Court to permit a subpoena to stand which does little more than trawl for documents which may be used to impugn the credit of a particular witness.” In considering these remarks, Brereton J found in Liristis (at [5]) that “[t]he concept of “trawling" in this context is the same as that of “fishing.” It is not fishing to seek documents when there are reasonable grounds to think that fish of the relevant type are in the pond”.
22. In Thomas v SMP (International) (No.2) [2010] NSWSC 870 (cited with approval by Bromberg J in Comcare v John Holland Rail Pty Ltd (No.5) (2011) 283 ALR 111; [2011] FCA 622 at [35]), Pembroke J addressed the apparent difference between the statement of the law in Liristis and Fried as follows (at [20]):
    • In [Fried], the explanation of the purpose for which the documents were required was “altogether too vague and unsatisfactory to persuade me of its legitimacy”: Fried ... at [30]. In [Liristis], there was precision about the category of documents sought and the logical and rational reason why the documents might be probative (on credit) was quite apparent: Liristis ... at [7].
23. A subpoena cannot be used for the purposes of conducting a “fishing” expedition in the sense that documents are sought to discover if the issuing party has a case, rather than to support a case which has been articulated (Liristis at [5]). As pointed out by Stone J in Dorajay at [34], a submission to the effect that paragraphs of a subpoena constitute “fishing”:
    • ... amounts to a submission that the paragraphs have no legitimate forensic purpose because the documents are sought in order to discover if there is a case not to support a case that has already been articulated; Small at 575.
24. Relevantly, her Honour continued:
    • In Bailey v Beagle Management Pty Ltd [2001] FCA 60; (2001) 105 FCR 136 at 143, a Full Court of this Court noted that the concept of fishing had undergone ‘substantial rethinking’ in recent years. The Court referred to the comment of the majority of the High Court in Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 685 to the effect that the public interest requires that in the interests of a fair trial ‘all relevant documentary evidence’ should be available. The Full Court commented at 143:
      • The applicants’ suggested rule imposes a requirement that, to avoid the stigma of fishing, a party must already be in possession of some evidence, before issuing a notice to produce (or, presumably, any other compulsive interlocutory process). But historically the concept of fishing was not concerned with the prior possession of evidence but rather that there was a prior pleading which raised issues for which the evidence sought by the process would be relevant.
25. In determining whether a subpoena ought to be issued, it is also relevant to bear in mind the stage of the proceedings. Goodyear contended that the early stage of proceedings at which the subpoena was issued may warrant the Court exercising a discretion to refuse the disputed items. In Stanley & Anor v Layne Christensen Company & Ors [2004] WASCA 50, the Western Australian Court of Appeal cited with approval (at [9]) a summary of principles which addressed the stage of proceedings and the use of a subpoena to meet the opposing case by way of cross-examination as follows:
    • There are, I think, four points of principle which emerge from the cases. They are:
    • (1) A legitimate forensic purpose will be established if a document gives rise to a line of enquiry which is relevant to the issues before the trier of fact, including for the purpose of meeting the opposing case by way of cross-examination: see Apache Northwest Pty Ltd & Ors v Western Power Corporation [1998] WASCA 127; (1998) 19 WAR 350 at 374; National Employers' Mutual General Insurance Association Ltd v Waind & Anor [1978] 1 NSWLR 372 at 385; Maronis Holdings Ltd & Ors v Nippon Credit Australia Ltd & Ors [2000] NSWSC 138; (2000) 18 ACLC 609 at 613 – 614.
    • (2) In assessing whether a legitimate forensic purpose exists in relation to documents sought on an early return of subpoena, it must be borne in mind that the necessity for having a document to fairly dispose of the issues at trial might well not become apparent before trial. It may, for example, become apparent when a document is used in cross-examination to refute unforseen (sic) evidence-in-chief. Thus, whether a document is 'necessary' to fairly dispose of proceedings is to be understood in the broad sense of embracing any document which has value, in the sense of at least apparent relevance, and fairly disposing of proceedings, even if it might not readily be seen, at the pre-inspection stage, necessarily to be admissible in evidence: see Apache Northwest (supra) at 376. Cases will be rare in which, prior to production of documents, a subpoena will be set aside as an abuse of process on the ground the documents by description are manifestly irrelevant to the subject proceedings, or are incapable of bearing upon matters of credit pertinent to the proceedings: see Brand v Digi-Tech [2001] NSWSC 425.
    • (3) At least one object of the rule permitting early return of subpoenas is to appraise the parties of the strengths and weaknesses of their case at an early stage. Hence, no narrow view as to the legitimate purposes of a subpoena ought to be taken: see Khanna v Lovell White Durrant [1995] 1 WLR 121 at 123.
    • (4) There is no requirement that to avoid the stigma of fishing, a party must already by in possession of some evidence before issuing a subpoena. Historically the concept of fishing was not concerned with the prior possession of evidence, but rather the prior pleading of issues for which the evidence sought would be relevant: see Bailey & Ors v Beagle Management Pty Ltd & Ors [2001] FCA 60; (2001) 105 FCR 136 at 143 – 144; Chapman v Luminis Pty Ltd [2001] FCA 1580 at [48]. In the interests of a fair trial, litigation should be conducted on the footing that all relevant documentary evidence is available: see Bailey (supra) at 143.
26. After referring to various statements of the test for whether a subpoena has a legitimate forensic purpose, Wigney J pointed out in Gloucester Shire Council (at [23]) that:
    • The common theme of these various statements of the applicable test of relevance in the context of subpoenas or notices to produce is that it is less stringent than the test of relevance that applies in the context of the admissibility of evidence. And where, as here, the proceeding is at a very early stage and the issues have not been clearly defined, the question whether documents sought by a subpoena have apparent relevance should not be approached too narrowly or rigidly. In such circumstances, the court should be wary of too readily excluding the possibility that a document or class of documents might at the end of the day be relevant to a fact in issue in the litigation. The court should not lose sight of the fact that the public interest requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available: Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 685; referred to by the Full Court in Bailey v Beagle Management Pty Ltd [2001] FCA 60; (2001) 105 FCR 136 at 143 [27].

The Proceedings

27. It is necessary to determine the apparent relevance of the documents sought by reference to the matters in issue in the substantive proceedings.
28. There are two main aspects of Mr Andrade’s substantive case as pleaded in the SoC of relevance to the application to strike out certain paragraphs of the subpoena. These can be described as the underpayment claim and the adverse action claim.
29. In relation to the underpayment claim it is pleaded that Mr Andrade is an employee of Goodyear who was underpaid in various respects. This claim is put on alternative bases. First it is pleaded that his employment with Goodyear was governed by the General Retail Industry Award 2010 (the Retail Award) and that his position was equal to a particular classification under the Retail Award, but that he was not remunerated on that basis and in accordance with certain clauses in the Retail Award. Goodyear is said to have breached the Retail Award in several respects, thus contravening applicable civil remedy provisions in the FW Act. In the SoC Mr Andrade anticipates seeking to amend this pleading (albeit expressed as reserving a “right” to amend) following production of documents pursuant to any subpoena for production or notice to produce that may be issued.
30. In the alternative, Mr Andrade pleads that his employment with Goodyear was governed by the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (the Vehicle Award), that his position was equivalent to a particular classification and that he was underpaid in that he was not remunerated on that basis and in accordance with certain clauses in the Vehicle Award. The consequences of the asserted breaches of the Vehicle Award are pleaded similarly to the pleading in relation to the Retail Award (including allegations of contraventions of applicable civil remedy provisions in the FW Act and the reservation of what is said to be a “right” to amend).
31. In the Amended Defence Goodyear has taken issue with the adequacy of Mr Andrade’s pleading of coverage and classification under either Award, as well denying that Mr Andrade was covered or affected in his employment, at what was said to be managerial level, by either Award. Mr Andrade bears the onus of establishing this aspect of his claims.
32. The other main aspect of Mr Andrade’s claims is a contention that Goodyear took and/or threatened to take adverse action against him because he had exercised workplace rights to make complaints or inquiries and hence that it was in contravention of s.340 of the FW Act.
33. Mr Andrade bears the onus of establishing that he has or has exercised a workplace right as defined in s.341 of the FW Act and that Goodyear has taken adverse action (as defined in s.342(1)) against him.
34. If Mr Andrade establishes these matters and alleges that the adverse action was taken because he had or exercised a workplace right, under s.361 of the FW Act it is presumed that Goodyear took the adverse action for that reason unless it proves otherwise.
35. The leading case in relation to the principles to be applied in determining whether an employer has met the reverse onus under s.361 of the FW Act is Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32. In State of Victoria (Office of Public Prosecution) v Grant (2014) 246 IR 441; [2014] FCAFC 184 Tracey and Buchanan JJ stated (at [32]) in relation to Barclay:
    • The principles which informed this decision were recently reaffirmed by a majority of the High Court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41. Relevantly, these authorities establish that:
      • The central question to be determined is one of fact. It is: “Why was the adverse action taken?”
      • That question is to be answered having regard to all the facts established in the proceeding.
      • The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.
      • It will be “extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.”
      • Even if the decision-maker gives evidence that he or she acted solely for non-proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.
      • If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361.
    • Barclay at 517 (French CJ and Crennan J); 542 (Gummow and Hayne JJ); 545-6 (Heydon J) and CFMEU at [19]-[22] (French CJ and Kiefel J); [85]-[89] (Gageler J).
36. Mr Andrade has pleaded that he made certain complaints constituting the exercise of workplace rights for the purpose of s.341 of the FW Act.
37. In the Amended Defence Goodyear disputed or questioned the adequacy of some aspects of Mr Andrade’s pleading of the exercise of workplace rights and admitted others.
38. In connection with the assertion of adverse action, in paragraph 45 of the SoC it is pleaded (among other things) that on 7 August 2015 Goodyear instituted an investigation into Mr Andrade’s conduct in which it alleged that he had incorrectly used its Associate Family and Friends (AFF) Discount Scheme (the AFF Scheme) and directed him to attend a disciplinary meeting to discuss the allegations. The particulars refer to a letter from Goodyear dated 7 August 2015.
39. Relevantly, Mr Andrade also pleaded that, after further correspondence, on 25 July 2016 Goodyear issued a letter (particularised as a letter dated 13 July 2016) which purported to constitute his second written warning.
40. The actions and conduct particularised in these and other paragraphs of the SoC are subsequently pleaded as constituting adverse action (pleaded as injuring Mr Andrade in his employment, altering his position to his prejudice and discriminating between him and other Goodyear employees).
41. In the Amended Defence Goodyear denied instituting an investigation, but admitted sending a letter of 7 August 2015 to Mr Andrade regarding the AFF Scheme.
42. At paragraphs 45A and 45B of the Amended Defence Goodyear then pleaded:
    • 45A. It is the Respondent’s practice to perform ongoing and regular audits of retail premises operated by the Respondent (including the Rutherford Premises).
    • 45B. On 22 and 23 July 2015:
      • a. auditors engaged or employed by the Respondent inspected various records including sales records of the Rutherford Premises. Two audit reports were produced by the Respondent on 28 July and 31 July 2015; and
      • b. in assisting the auditors, the Applicant (in his capacity as Assistant Manager of the Rutherford Premises) and the Manger (sic) of the Rutherford Premises signed a Management Affirmation, which included words to the effect that they had “no knowledge, directly or indirectly, of any payments of cash in violation of the law or Goodyear Policy”.
      • Particulars
      • The Audit Reports are in writing and dated as pleaded. The Respondent shall rely upon extracts of the audit reports at trial.
      • The Management Affirmation is in writing and dated 22 July 2015. The italicised text is words contained in the Management Affirmation. The Respondent shall refer to the whole of the document dated 22 July 2015 at trial.
43. Goodyear appears not to dispute sending the letter of 13 July 2016 (see paragraph 55 of the Amended Defence).
44. However it put in issue the pleading that its actions and conduct constituted adverse action in contravention of the FW Act, taking issue with aspects of Mr Andrade’s pleading as misconceived, confusing and embarrassing and also pleading that, to the extent any decision or action taken by it was adverse, it denied that any of those decisions or actions were taken for a prohibited reason.
45. Included in the subsequent elaboration of this aspect of the Amended Defence, it was also pleaded by Goodyear that in the case of the “incorrect use” of its AFF Scheme neither of two identified decision-makers had any prohibited reason (including the workplace rights alleged) as a reason, or a reason including the reason, when recommending or drafting or sending the 7 August 2015 letter or for the conduct set out in paragraphs 45A-B of the Amended Defence and that each had as his sole reason for the conduct “the contravention of policy involving potential misuse of the AFF Scheme and the existence of the Management Affirmation”.
46. It was also pleaded by Goodyear that in the case of the sending of the letter dated 13 July 2016 to Mr Andrade the identified decision-maker did not have a prohibited reason, and that “the sole reason” was “the breach or contravention” by Mr Andrade of the AFF Scheme.
47. While the pleading was complete at the time of the hearing of Goodyear’s application, neither party had filed affidavit evidence in relation to the substantive proceedings.

Paragraphs 5 and 6

48. It is convenient to consider together paragraphs 5 and 6 of the subpoena as the documents sought therein are said to relate primarily to the underpayment claim.
49. Paragraph 5 seeks documents and records evidencing all managerial directions, instructions, duties summaries and task lists given to him by Goodyear during “the Periods”.
50. Paragraph 6 seeks all documents and records evidencing Goodyear’s “performance reviews” of Mr Andrade undertaken during “the Periods”.
51. The concept “the Periods” is explained elsewhere in the subpoena by reference to the SoC which refers to the period between 10 October 2013 (when Mr Andrade is said to have commenced employment with Goodyear) and 30 June 2014, the period between 1 July 2014 and 9 September 2014, and the period between 1 October 2014 and 17 December 2014.
52. Mr Andrade submitted generally that paragraphs 5 and 6 had a clear legitimate forensic purpose in capturing documents and records that were a contemporaneous record of the work he actually performed, that he was required to perform at the direction and instruction of his employer, Goodyear, and in relation to which he was being evaluated.
53. Such documents and records were said to be directly relevant to the issues at trial, in particular the underpayment claim and the issue of whether the Applicant was “protected” by one of the Awards pleaded. It was pointed out that Mr Andrade had pleaded in the alternative that the Vehicle Award or the Retail Award applied to his employment and that his position was equivalent to a specified classification under each Award by reference to duties pleaded in paragraph 6(c) of the SoC and the particular clauses of each Award relating to classification.
54. It was also said that in its Amended Defence Goodyear clearly put in issue whether or not either of the Awards pleaded applied to Mr Andrade.
55. In particular, Mr Andrade submitted that the documents referred to in paragraph 5 were pieces of contemporaneous documentary evidence which may support what he said about the duties he had to perform, in recording what he was being told to do by Goodyear, and thus that they may bear on the nature of his duties and hence issues that would arise for determination (in particular in relation to classification under either Award pleaded) in considering whether he had made out his underpayment claim.
56. Goodyear submitted that this paragraph involved fishing or sought material irrelevant to the proceeding as pleaded. It was contended that the documents sought in paragraph 5 of the subpoena could not bear on the questions of what the Applicant actually did in his engagement and whether the work he actually did fitted within either of the pleaded classifications and that such documents were not relevant or not directly relevant to any direct question in the case, as managerial directions were not pleaded. Goodyear submitted that any instructions given by it to Mr Andrade as to what work he was to perform were not relevant to the substantive issues of the work done by Mr Andrade and the question of classification and that if Mr Andrade gave evidence about his tasks (not just his duties as directed) such documents would become otiose.
57. The submissions of both parties were made at large and not by reference to the language of the clauses in relation to classification in the Awards in issue.
58. It is apparent from the pleading that in issue will be whether the Retail Award applies and, if so, the classification of Mr Andrade under that Award or whether, in the alternative, the Vehicle Award applies and, if so, Mr Andrade’s classification under that Award.
59. I am satisfied that a legitimate forensic purpose exists in relation to these documents and that they meet the test of apparent relevance, whether expressed in terms of it being “on the cards” that the documents will materially assist the Applicant’s case or otherwise. The documents sought would be a contemporaneous record of the work Mr Andrade was required to perform at the direction and instruction of his employer. Despite Goodyear’s understandable concern about the generality of Mr Andrade’s explanation as to apparent relevance, such documents have an apparent relevance in relation to the issue of classification and could reasonably be expected to throw some light on issues in the proceedings as evidence as to the duties Mr Andrade was required to carry out in support of his case in relation to the work he actually performed. That would be so even if all that is in issue in relation to Award classification is what Mr Andrade actually did (rather than some wider test requiring consideration of duties Mr Andrade was required to perform).
60. As pointed out in McIlwain, it is not necessary to demonstrate “direct relevance” to the dispute, but rather potential relevance to the pleadings as they stand. Mr Andrade pleaded coverage and classification by reference to his contractual obligations (in paragraph 6(c)) but also pleaded (in paragraph 9 which Goodyear disputes in part) that such duties were performed as specified and on dates specified.
61. Insofar as there is any suggestion by Goodyear that this part of the subpoena is premature, I do not agree (see the discussion in Stanley at [9]). It is not appropriate to take a narrow view as to the legitimate purpose of such a subpoena and early appraisal of the strengths and weaknesses of a party’s case is desirable. Moreover, whether any of the documents sought in paragraph 5 are hearsay as Goodyear suggested would be a matter for determination at the trial, should such documents be relied upon. It is not necessary to be satisfied at this stage that the documents sought would necessarily be admissible into evidence.
62. Mr Andrade also submitted that “performance review” documents sought in paragraph 6 would be a contemporaneous record relevant to his duties and responsibilities and the expectations of his employer, thus providing source documentation as to these matters and what he actually did for Goodyear. It was submitted that there was a legitimate forensic use for such documents in that they were of apparent relevance to issues in relation to both the underpayment and the adverse action claim.
63. As to the former, it was said to be “on the cards” that such documents would assist in relation to the classification of Mr Andrade, depending on the construction of either Award pleaded, in particular in relation to whether the duties pleaded in the SoC “married up” with the relevant clauses of the Awards in issue. It was again pointed out that Goodyear had put in issue both the coverage and classification under both Awards pleaded.
64. Insofar as in oral submissions Goodyear appeared to suggest that there were no performance reviews “as such” in the specified periods, Mr Andrade contended that to the extent any performances appraisals existed, it was on the cards that they would assist as contemporaneous records of duties performed by him as evidence of evaluation by and the performance expectations of Goodyear.
65. In addition, Mr Andrade submitted that this category of documents may assist in the resolution of his general protections claim, insofar as there was any disparity in how he was treated before and after he made the pleaded complaints concerning underpayments, although the particular “issue” to which this could be relevant was not identified.
66. Goodyear submitted that this category of material was irrelevant to the pleaded issues and that this paragraph was manifestly beyond the pleading. Counsel for Goodyear also advised that he was instructed that no performance reviews in written form or otherwise existed.
67. It was reiterated that what was in issue was what Mr Andrade actually did in his employment and (considering this evidence) whether the work he actually did fitted within the pleaded classifications, and submitted that performance “material” of the nature sought could not bear on these questions and would not be relevant to any direct question in the case as such matters were not pleaded.
68. Goodyear also submitted that Mr Andrade’s argument in relation to the apparent relevance of documents caught by paragraph 6 to the adverse action claim involved an error of reasoning in relation to the “reason” issue under s.361 of the FW Act, such as had been adopted by the Full Court of the Federal Court in Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212; [2011] FCAFC 14 at [27]- [28], but overturned by the High Court.
69. Again, the contentions of the parties proceeded on the basis that classification under either Award (if applicable) would be determined entirely on the basis of the work actually performed by Mr Andrade. This will be a matter to be determined by construction of the relevant clauses of the Award. However, even if that is so, I am satisfied that any performance reviews conducted in the periods in issue would be contemporaneous records of apparent relevance to the issue of the work Mr Andrade performed and hence that they would be reasonably likely to throw light on issues relevant to the issue of classification under any applicable Award. I have borne in mind that a narrow view as to the legitimate purposes of a subpoena ought not be adopted. It cannot be said that the documents sought are manifestly irrelevant to the proceedings or otherwise such that these paragraphs should be set aside as an abuse of process.
70. Neither the suggestion that there may be other more “helpful” records of what Mr Andrade did nor the fact that managerial directions and/or performance reviews are not pleaded is determinative. Further, even if some such anticipated documentation may not necessarily be admissible in evidence at trial (see Stanley v Layne Christensen Co at [9]), the documents sought have a legitimate forensic purpose as evidence of at least apparent relevance to issues that are pleaded, in particular the applicable classification under either Award. This part of the subpoena is not a fishing expedition. It does not seek irrelevant documents or seek to discover if Mr Andrade has a case.
71. Hence, the issue of whether there is also a legitimate forensic purpose in relation to a matter in issue in the context of the adverse action claim need not be determined for present purposes.
72. There is nothing to suggest that compliance with paragraphs 5 and 6 of the subpoena would be seriously and unfairly burdensome on or prejudicial to Goodyear having regard to the limited scope of the documents sought and the periods in issue.
73. In all the circumstances, the early time at which the subpoena has been issued and Goodyear’s contentions about irrelevance are not such as to warrant any discretionary “refusal” to grant these disputed paragraphs (assuming that the Court has such a discretion).
74. To the extent that Goodyear’s arguments may be seen as suggesting that Mr Andrade is (inappropriately) seeking discovery via another process, I do not agree. I have had regard to the policy behind s.45 of the Federal Circuit Court Act 1999 (Cth) and the modern use of the subpoena for production addressed to a party to the proceedings (see the discussion in Harwood v Trustees of the Property of John Mervyn Harwood (2015) 297 FLR 159; [2015] FCCA 1058 at [5]- [42]). The impugned paragraphs in the subpoena use relatively clear language. The use of a subpoena to obtain documents of the nature and extent sought in the present context is consistent with the efficient and expeditious resolution of the dispute between the parties.
75. These paragraphs should stand.

Paragraphs 10 and 12(c)

76. These paragraphs (including paragraphs 12(a) and (b) to which there is no objection) are as follows:
    • 10. All documents and records evidencing the use of the Respondent’s AFF scheme, by the Respondent’s employees at the Respondent’s Rutherford store, during the Periods.
    • 12. Copies of the extracts of the Audit Reports referred to at paragraph 45B of the Respondent’s Amended Defence, where such extracts relate to:
    • (a) The Applicant; or
    • (b) The sales records of the Rutherford store; or
    • (c) The use of the AFF scheme through the Respondent’s organisation.
77. Mr Andrade contended generally that the categories of documents in paragraphs 10 and 12(c) to which Goodyear objected are of apparent relevance to his general protections (adverse action) claim on the basis that they would go to establishing whether he operated in accordance with Goodyear’s policies and procedures in relation to the use of the AFF Scheme and the extent to which he has been singled out for disciplinary action, despite widespread work practices. The documents sought were said to be directly and circumstantially relevant to the facts in relation to the adverse action claim, specifically the issue of whether Mr Andrade was selectively targeted by Goodyear for reasons which included the complaint he made in respect of alleged underpayments.
78. The documents sought in paragraph 10 were said to be material evidencing and of potential relevance to the adverse action claim by way of disciplinary action pleaded in the SoC (see paragraph 56 of the SoC) in relation to use of the AFF Scheme. Mr Andrade pointed out that Goodyear had pleaded that it was its practice to perform ongoing and regular audits of its premises, including the Rutherford store where he was said to work. It was submitted that his treatment compared to that of other employees at that store during the periods in issue was relevant to his claim that adverse disciplinary action was taken for a prohibited reason and that, as contemporaneous records, the documents sought would very likely assist in the Court’s “assessment” of the credibility of the pleaded reasons of the relevant decision-makers in light of the totality of the evidence. In particular, it was submitted that the Applicant was entitled to seek records which would enable him to challenge in cross-examination asserted reasons for conduct pleaded in the Amended Defence that Goodyear had indicated would be forthcoming in the evidence of its employees relevant to satisfaction of the reverse onus under s.361 of the FW Act.
79. Mr Andrade did submit that the compass of the factual context in this case included factual matters as to whether the “motive” of any actions proved to be taken by Goodyear which caused injury to him in his employment and/or which altered his position to his prejudice was “attenuated” by the underpayment claim he made or was entitled to make. However in referring to the test in relation to how an employer would discharge any onus that arose under that section, counsel for Mr Andrade referred to the High Court decision in Barclay. Mr Andrade contended that what would be in issue was the reverse onus in relation to s.361 and cited discussion of the “reason” for any adverse action by the High Court in Barclay, including the explanation of French CJ and Kiefel J to the effect that the central question remained “why was the adverse action taken?” (at [44]); that “[t]his question is one of fact, which must be answered in the light of all the facts established in the proceedings” (at [45]); and that “[d]irect evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity” (at [45] and see [85]). Reference was also made to the suggestion of Gummow and Hayne JJ at [127] that “... in assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case” as well as to the explanation by Heydon J at [141] that “Of course, “mere declarations” by a witness as to his or her “mental state” may not be sufficient to discharge the appellant's burden of proof under s 361. External circumstances could put into question the reliability or credibility of those declarations”.
80. Mr Andrade’s oral submissions made it clear that the documents covered by paragraphs 10 and 12(c) were primarily said to be of apparent relevance to questions of credit for the purpose of assisting cross-examination, in particular as to credit, of decision-makers identified in the pleading as persons whose “reason” or “reasons” would be relied upon by Goodyear should the reverse onus arise under s.361 of the FW Act.
81. In post-hearing written submissions the Applicant submitted that the Court would be “duty bound to look behind the ‘official’ explanations for the actions taken against the Applicant, and rather to examine the motivation of the Respondent in light of the totality of the evidence”.
82. For its part, Goodyear objected to these categories of documents on the basis that there was no legitimate forensic purpose; that the documents sought were of no utility, in the sense of adjectival relevance; that seeking such documents was an abuse of process; or that the Court in its discretion should refuse the subpoena in relation to these paragraphs (as well as the other disputed paragraphs).
83. Goodyear submitted that the material sought in paragraphs 10 and 12(c) did not bear on any reason for the decisions pleaded in the Amended Defence, and that the issue of proof of the detailed and personal reasons of the decision-makers had been obscured in irrelevant references in the Applicant’s submissions to “motivation” and other unnecessary generality and that the evidence sought would not challenge the “particular individual” reasoning of persons making the impugned decisions (see General Motors-Holden Pty Ltd v Bowling (1976) 51 ALJR 235 and Barclay at [50]).
84. Goodyear also pointed out that there were authorities to indicate that the truth or otherwise of complaints made by an applicant (within s.341(1)(c) of the FW Act) was not relevant to an applicant’s cause of action under the general protections part of the FW Act and submitted that the Applicant could not “look behind” his disciplinary proceedings and that any attempt to create a comparator between Mr Andrade’s conduct or treatment and the way other persons were treated who used the AFF Scheme at the Goodyear store in issue was irrelevant to his pleaded cause of action (see Milardovic v Vemco Services Pty Ltd [2016] FCA 19 at [73]; Ermel v Duluxgroup (Australia) Pty Ltd (No.2) [2015] FCA 17 at [47] and Shea v TRUenergy Services Pty Ltd (No.6) (2014) 314 ALR 346; [2014] FCA 271 at [618]- [619]). It was submitted that seeking to create a comparator or to cast the net widely about other unnamed employees in this way tended to involve irrelevant evidence and irrelevant considerations and may prolong the trial.
85. Counsel for Goodyear provided detailed submissions addressing the distinction between the concept of objective “motivation” which was said to be referred to in submissions for Mr Andrade, and the actual “reason” or “reasons” for a particular decision-maker’s decision that would be in issue if the s.361 reverse onus arose. He pointed to the distinction between the “objective reasons” approach taken by the Full Court of the Federal Court in Barclay (see [2011] FCAFC 14 at [27]- [28]) and the contrary approach taken by the High Court in Barclay (at [15], [108] and [141]), which was said to have endorsed the reasoning of Tracey J in Barclay at first instance at [34]-[35]. In particular, it was submitted that a comparison with other employees was not evidence of “reasons” in a general protections claim.
86. Goodyear acknowledged that challenging credit could be a legitimate use of a subpoena (see Fried), but submitted that:
    • ...there is no identifiable person (whether decision maker, in the sense of Part 3-1 of the FW Act, or otherwise) set out in the Respondent’s extensive pleading whose credit would be challenged by a comparison between the Applicant and any other person in the employ of the Respondent. To attempts such a comparison is simply beyond the scope of the Applicant’s complaints regarding his workplace rights (see paragraph 43 of the Applicant’s Further Amended Statement of Claim) and any other allegation in the parties’ pleadings. This is not to say that (after evidence is concluded) a subpoena properly directed to credit could not be prepared; but at this early point, without witness evidence, it seems hardly likely.
87. While it can be accepted for present purposes that, as Goodyear contended, the truth or otherwise of an applicant’s complaints is not relevant to the matters to be established by an such applicant in an adverse action claim under the FW Act, this was not the basis (or if it was, was not the only basis) on which Mr Andrade sought to establish a legitimate forensic purpose in relation to paragraphs 10 and 12(c) of the subpoena. In pleading adverse action within s.342 of the FW Act, Mr Andrade has, relevantly, pleaded that particularised conduct and actions of Goodyear discriminated between himself and other Goodyear employees.
88. It is also the case that in submissions counsel for the Applicant referred loosely to the “motive” or “motivation” of a decision-maker in relation to adverse action, rather than to actual reasons for a particular decision-maker’s decision as considered by the High Court in Barclay. This might, in isolation, suggest a misunderstanding of the effect of Barclay. However it is clear from the Applicant’s reliance on the High Court decision in Barclay and cited passages therein that his contention was that, in essence, a decision-maker’s direct evidence as to why adverse action was taken (Barclay at [44]) is a question of fact to “be answered” in light of all the facts established in the proceedings in the manner considered in Barclay at [45], [85], [127] and [141].
89. In this context it was in essence contended that there was a legitimate forensic purpose for the documents in paragraphs 10 and 12(c), at least insofar as such documents may be used to challenge in cross-examination the credit of relevant decision-makers (see Fried and also Liristis) and that it was “on the cards” (as Brereton J stated in Liristis at [5]) that relevant documents would be elicited by the subpoena. As indicated, this is but one way to describe the test of apparent relevance (see Wong v Sklavos at [12]). However expressed, I am satisfied that in this case the test is met, even if the potential use of the material sought is limited to challenge to the credit of the decision-makers whose reasons would be in issue under the s.361 reverse onus.
90. As indicated, in the Amended Defence, after pleading earlier correspondence regarding the AFF Scheme, two audit reports and other matters, Goodyear pleaded that particular identified decision-makers responsible for sending pleaded letters of 7 August 2015 and 13 July 2016 did not have any prohibited reason as the reason or including the reason when recommending, preparing or sending such letters.
91. In addition, as to the first letter Goodyear also pleaded that each decision-maker involved “in the case of the incorrect use of the Respondent’s AFF Scheme ... each had as their sole reason for the conduct the contravention of policy involving potential misuse of the AFF Scheme, and the existence of the Management Affirmation”. Similarly, the “sole reason” of the identified decision-maker in relation to the sending of the 13 July 2016 letter was pleaded as “the breach or contravention” by Mr Andrade of Goodyear’s AFF Scheme.
92. Paragraphs 10 and 12(c) of the subpoena seek documents that may potentially be used to impugn the credit of such particular witnesses. As Brereton J stated in Liristis at [5]: “It is not fishing to seek documents when there are reasonable grounds to think that fish of the relevant type are in the pond or, as it has been expressed in other cases, that it is “on the cards” that relevant documents (even if they are relevant only to credit) will be elicited by the subpoena.” Having regard to the nature of the documents sought there are reasonable grounds to think that relevant documents (in this sense) will be elicited by these paragraphs of the subpoena.
93. Despite the relatively “early” stage of the proceedings, the pleadings identify decision-makers and address their reason or reasons in a manner foreshadowing evidence. The basis on which the material in issue is sought goes beyond seeking a comparator in the manner contended for by Goodyear. There is sufficient precision about the category of documents sought such that there is a logical reason why such documents might be of apparent relevance in relation to the issue of the actual reason or reasons for asserted adverse action in the sense considered by the High Court in Barclay, insofar as the pleaded reasons are said to relate to use of the AFF Scheme. Any assertion that the subpoena is fishing or is premature in this respect is contrary to the specificity of Goodyear’s pleading in this respect. The documents sought are “necessary” to fairly dispose of proceedings in the broad sense considered in Stanley at [9]. They are also not manifestly irrelevant or incapable of bearing upon pertinent matters of credit.
94. It is therefore not necessary to speculate about other potential uses of such documents, even if there is some force in what Goodyear has submitted in relation to aspects of the general protections claim that must be established by Mr Andrade for the reverse onus on Goodyear to arise under s.361 of the FW Act.
95. It has not been established that compliance with this part of the subpoena would be unduly burdensome or oppressive.
96. Paragraph 12(c) of the subpoena is also to be seen in light of paragraphs 45A and B of the Amended Defence set out at [42] above.
97. Notably, on its face paragraph 12(c) seeks no more than extracts from the Audit Reports which Goodyear has pleaded that it intends to rely on at trial.
98. Mr Andrade submitted that there was a legitimate forensic purpose in relation to documents referred to in the pleading in support of the contention that this part of the subpoena did not involve an unacceptable fishing expedition. He also reiterated his submissions in relation to the category of documents sought in paragraph 10 of the subpoena. It was pointed out that he did not seek the full audit report, but rather the extracts referred to in paragraph 45B of the Amended Defence which were said to relate to his case.
99. Again, the main thrust of Mr Andrade’s submission was that this material may be used to assist cross-examination as to the credit and “reason” (in the Barclay sense) of relevant decision-makers (although there was also a suggestion of relevance to whether proscribed adverse action was taken by Goodyear).
100. As indicated, Goodyear addressed the law in relation to the s.361 reverse onus and the actual reasons for a particular decision-maker’s decision (as distinct from wider issues of objective motivation). It again raised the difficulty of any attempt to use such material in establishing the complaint, adverse action and loss elements of an applicant’s general protections cause of action.
101. Goodyear also contended that paragraph 12(c) cast the net wider than the pleading permitted, insofar as it required production of material relating to the use of the AFF Scheme throughout the Respondent’s organisation.
102. This paragraph should stand, for the reasons outlined above in relation to paragraph 10 and also because it seeks no more than “extracts of (sic) the Audit Reports referred to at paragraph 45B of the Respondent’s Defence” which it is foreshadowed that Goodyear “shall rely upon” at trial. That is so notwithstanding that such “extracts” from the audit reports may relate to use of the AFF Scheme throughout Goodyear’s organisation. This cannot be oppressive. It is in the interests of a fair trial that the litigation be conducted on the footing that all relevant documentary evidence is available and, in my view, it ought to be available to Mr Andrade at this stage of the proceedings.
103. Insofar as Goodyear calls on the discretionary power of the Court to refuse to grant these items of the subpoena, having regard to the apparent relevance of the material sought to a potential cross-examination and challenge to the credit of identified decision-makers, the suggestion that the material has a “tendency” to invoke evidence not relevant to the main issue of causation in s.340 of the FW Act is not determinative. Insofar as the use of the subpoena to obtain documents relevant to cross-examination and challenging credit is criticised as an inappropriate use of a subpoena in place of discovery, as discussed above at [74] I am not so satisfied. As to the admittedly early point at which the subpoena has been issued, the requisite potential utility in the subpoena has been sufficiently identified by reference to the issues arising on the pleadings (see Wong v Sklavos at [12]). Having regard to the nature and limited extent of the documents sought and the principles cited above in relation to early return of subpoenas and the desirability of appraising parties of the strengths and weaknesses of their cases at an early stage, I am not satisfied that this factor, either alone or in combination with the other matters relied on by Goodyear, is such as to warrant the exercise of the Court’s discretion in the manner contended for by Goodyear. Further, even if some such material is shown, at trial, to be inadmissible as irrelevant (or on some other basis), that is not the test of apparent relevance.
104. I also note that the subpoena cannot be said to be oppressive or unduly burdensome on Goodyear.
105. These paragraphs should stand.
106. The orders sought in paragraph 2 of Goodyear’s Application in a Case should be refused.
107. It is, however, necessary to extend the time for compliance with the subpoena. Goodyear had proposed that the time for compliance be enlarged to 22 February 2017. That time has now passed. As this proposed timetable suggested that a fortnight ought to suffice, I propose to enlarge the time for compliance with the subpoena until 31 March 2017.

I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate:

Date: 17 March 2017