Annovazzi v State of New South Wales- Sydney Trains

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. On Thursday, 11 September 2025, the applicant, Ms Annovazzi, provided to the lawyers for the respondent (Sydney Trains) two notices to produce. One is titled, "Notice to Produce 11 September 2025," and the second is titled, "Draft Notice to Produce-SYD3 116/2018." At 5.34 pm on 15 September 2025 Ms McMahon, the lawyer for Sydney Trains, sent an email to my Associate's inbox, attaching the two notices to produce and also attaching or referring to correspondence between Ms McMahon and Ms Annovazzi which occurred before Ms McMahon sent the email to my Associate's inbox.
2. In her email to my Associate's inbox, Ms McMahon stated:

We write to request that this matter be urgently listing before the Court to deal with a Notice to Produce issued by the Applicant on 11 September 2025 (copies attached). The issues arising require timely resolution to avoid prejudice to either party and to ensure the matter proceeds efficiently on Wednesday.

Given the imminent return date and the practical implications for compliance, we respectfully seek an urgent short listing at the earliest available time tomorrow convenient to the Court.

1. The reference in that email to the matter proceeding on Wednesday is a reference to my having set down some months ago the hearing of matters remitted to this Court by the Full Federal Court in State of New South Wales - Sydney Trains v Annovazzi [2024] FCAFC 120. In response to that email, I arranged for my Associate to list the matter before me at 12 pm on 16 September 2025. At that time Ms Annovazzi appeared for herself, and Sydney Trains appeared by its counsel, Mr Seck.
2. Shortly before the listing, Ms McMahon sent to my Associate's inbox a copy of the two notices to produce large segments of which were crossed out. I marked for identification each of those: that is, I marked MFI1 the document titled, "Draft Notice to Produce- SYD 3116 /2018," and MFI2 the document titled, "Notice to Produce-11 September 2025." In effect, what was before me was an application by Sydney Trains to set aside the notices to produce to the extent of those sections that Sydney Trains had crossed out.
3. The principles that apply when a party seeks to set aside a notice to produce are the same as the principles that apply to applications to set aside a subpoena. And those principles have been stated on many occasions by different courts. Convenient for my purposes today is what the Full Federal Court said in Wong v Sklavos [2014] FCAFC 120, at paragraph 12,:

The party issuing a subpoena [notice to produce] bears the onus of demonstrating that the subpoena has a legitimate forensic purpose in relation to the issues in the proceedings... 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... 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.... or that the material sought is reasonably likely to add in some way to the relevant evidence in the case .... or that it be "on the cards" that the documents sought will materially assist the party at whose request the subpoena has been issued...

1. The consequence of those principles is that on today's listing Ms Annovazzi bears the onus of showing that there is a legitimate forensic purpose for the production of the documents called for by the two notices to produce. Ms Annovazzi, I should add, is not legally represented, and of course I must treat her application on that basis. In any event, I invited Ms Annovazzi to articulate what she submitted was the legitimate forensic purpose of the notices to produce, and what apparent relevance the documents referred to in the notices to produce had.
2. Ms Annovazzi gave very extensive reasons; but what they seemed to be aimed at were matters relating to the manner in which Sydney Trains made decisions in relation to her employment, and decisions in relation to what occurred after Sydney Trains terminated her employment. Ms Annovazzi's submissions were not directed to the issues that remain to be determined by me at the hearing on 17 September 2025. Those issues are the issues that the Full Federal Court remitted to me. In broad terms, the principal issues are identifying the characteristics of the comparator by reference to which Ms Annovazzi's claims of discrimination is to be assessed, and, secondly, the identification of the person or persons who made or were involved in the making of the decision to terminate her employment and the reasons for which they terminated her employment and, in particular, whether they did so because of Ms Annovazzi's disabilities.
3. Apart from not directing her submissions to the issues that I need to determine and seek to identify how the documents caught by the notice to produce could be considered to be apparently relevant and apparently of assistance to her case in relation to those issues, Ms Annovazzi's submissions indicated that she wanted the documents to find out things that she was not aware of. And in relation to one matter, she said that she wanted the documents to understand who made the decision, why, and how. That suggests that the purpose of Ms Annovazzi seeking the documents is to explore facts, and to investigate matters which, no doubt, to her are very important. But that is not the proper use of a notice to produce or of a subpoena. Subpoenas and notices to produce are issued on a certain assumption, and that assumption is that parties have stated their cases and have stated their defences. The legitimacy of the issue of subpoenas and notices to produce turns on whether the documents they call for are apparently relevant to the issues between the parties.
4. It was also notable in some of the submissions Ms Annovazzi made that she intended to make allegations, for example, of dishonesty, cover up, and manipulation of documents. Those are serious allegations and, by themselves, parties are not prevented from making them; but they must be made formally in a pleading and be relevant to an issue. On the pleadings as they currently stand, no such serious allegations are alleged. It would therefore not be appropriate to issue a notice to produce or to require Sydney Trains to produce documents if the apparent purpose is to investigate whether there is any substance to these serious allegations.
5. Before I came on the bench I examined the notices to produce and formed the preliminary view that some of the documents called for by the notices to produce were or could be said to be apparently relevant. As it so happened, the documents I had formed a preliminary view about are documents that Sydney Trains does not dispute are apparently relevant to the outstanding issues.
6. Sydney Trains also made a submission concerning oppression and prejudice. The submission on oppression was based on the combination of the apparent width of the documents sought to be produced and also the shortness of notice given by the late serving of the notices to produce. Given the conclusions which I will express in a moment, it is unnecessary to make any decision on the basis of the submitted oppression and consequent prejudice.
7. In my opinion, most of the notices to produce do not satisfy me that they call for documents that have a legitimate forensic purpose. I am satisfied that the only parts of the notices to produce which could be said to have a legitimate forensic purpose are those parts of MFI1 and MFI2 that have not been crossed out.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.