applicant's notice of motion of 22 september 2006
19 On 22 September 2006, the applicant, in what was then matter VID 756 of 2006, gave notice of a motion which she proposed to move on 25 September 2006. That notice was subsequently adjourned on two occasions, and has come before me today. As I explained in reasons given earlier this morning, only paragraphs 2 and 4 of that motion remain alive for consideration.
20 I shall deal with paragraph 4 first. Under that paragraph, the applicant seeks that the respondents produce all documents, including computer records, from 2005 and reveal their advisers and informants before the date for trial can be set up. In her submissions before me this morning, the applicant has protested that the date for trial has been set without the steps sought under paragraph 4 of her Notice of Motion of 22 September 2006 having first been taken. However that may be, I propose to deal with the applicant's motion on the merits.
21 As a result of the submissions which she has made to me today, it appears that the applicant desires to produce a number of different outcomes under this paragraph of her Notice of Motion. First, she seeks that the respondents produce at trial all the documents which are referred to in their discovery list, verified by the affidavit of Kosta Sterjov sworn on 31 May 2006. Secondly, the applicant seeks to contest the claims for privilege made in the respondents' discovery list, in which respect she relies upon so much of paragraph 4 of her Notice of Motion as seeks the revelation of the respondents' advisers and informants. Thirdly, the applicant contends that the respondents have failed to discover documents which I should reasonably apprehend exist and are relevant to the proceeding, and she seeks, in effect, an order for better discovery. Fourthly, although this appears to be part of her complaint as to insufficient discovery, the applicant seeks access to what she describes as "computer records" from 2005, by which I understand she refers to some aspects of the records of the timing of the creation of documents by a computer so as to provide, in effect, an audit of the question whether documents which have been discovered by the respondents in this case were created on the dates which they bear on their face. Fifthly, although not covered by paragraph 4 of the Notice of Motion, the applicant has reminded me that she has what I would describe as a number of outstanding issues with respect to an inspection of documents which previously occurred, and she seeks, again, the inspection of all the respondents' documents, and emphasises particularly the need for her to be shown originals, where they exist.
22 As to the applicant's request for the respondents' discovered documents to be produced at trial, Mr McKenney, on behalf of the respondents, has assured me this morning that the respondents propose to follow exactly that course. That is to say, they propose to bring to the first day of the trial all of the documents which they have discovered. Upon my suggestion that the applicant might be more assisted if she were to be given access to these documents beforehand, Mr McKenney has offered an undertaking on behalf of the respondents, which I propose to accept, that the respondents will deliver to the Registry of the court all of the documents referred to on their verified list, including originals where they exist, at or before 12 noon on 29 March 2007. I propose to order that the applicant be permitted to inspect those documents within the Registry of the court by appointment. I had thought that the applicant might be more assisted by having access to the documents at an earlier date at the office of the solicitors of the respondents, but the applicant made it quite clear that she was not interested in any such proposal.
23 As to the challenge which the applicant makes to the claims for privilege set out in Part 2 of the respondents' verified list, the applicant has produced no evidence upon the basis of which I might recognise an apparent departure by the respondents or their legal advisers from the obligations which lie upon them in the matter of identifying documents otherwise discoverable in respect of which a legitimate claim of privilege might be made. I consider that, in the absence of such evidence, I have no alternative but to take the verified claims for privilege at face value, and to treat the documents referred to generically in Part 2 of the respondents' list as legitimately the subject of those claims. To the extent that the contents of part two of the list imply that the respondents have taken the advice of other persons, and/or have received information from other persons, in the absence of at least some prima facie evidence to the contrary, I am bound to accept that those advisers and/or informants were providing advice or information, as the case may be, which was properly the subject of the privilege claims made.
24 As to the applicant's submission that a number of documents which may be supposed to exist have not been discovered at all by the respondents, I note that the applicant has referred to the following documents or categories of documents: a daily record book kept by the respondents; written references, or memoranda of unwritten references, obtained by the respondents in relation to the applicant's employment; communications, either in writing or evidenced by memoranda, between the respondents and the Department of Human Services; and the documentary results of Internet searches said to have been undertaken by the third respondent, Lisa Miller, about the applicant.
25 Giving the Notice of Motion an appropriate context within the Rules of Court, I consider that the applicant, in presently relevant respects, should be treated as moving the Court for an order under O 15 r 8 of those Rules. Under that rule, if it appears to the court from evidence, from the nature or circumstances of the case or from any document filed in the proceeding that there are grounds for a belief that some document or class of documents relating to any matter in question in the proceeding may or may have been in the possession, custody or power of a party, the court may order that that party file an affidavit stating whether that document or any document of that class is, or has been, in his possession, custody or power, and if it has been, but is not then, in his possession, custody or power, when he parted with it, and what has become of it. The question, therefore, is whether the evidence which has been filed, the nature of circumstances of the case or any document filed in the proceeding provides grounds for a belief that documents, or documents within a class, identified by the applicant in presently relevant respects are, or have been, in the possession, custody or power of the respondents. There is no evidence such as would sustain any grounds for such a belief. Neither is there any document already filed in the proceeding to which my attention has been drawn that would sustain such grounds. The real question is whether the nature or circumstances of the case would provide grounds for such a belief.
26 The case involves the termination of the applicant's employment by the respondents in November 2005. It is alleged that the termination occurred for discriminatory reasons, both under the WR Act and under the HREOC Act. The applicant has informed me that the respondents kept what she describes as a daily record book. Such a book has not apparently been discovered by the respondents, and there is nothing in the nature and circumstances of the case, as such, which would provide a ground for the court to believe either that such a book exists or, if it does, that it contains any entry which is or may be relevant to the present case. If there is such a book, and it does contain any such entry, of course, it should have been discovered.
27 The applicant's next category of documents are references, such as professional references, which were provided about her to the respondents. She told me that she provided the names of referees to the respondents. I do not know whether this is so, as I have no evidence on the subject. The applicant told me that her only evidence in this regard is what she described as common sense and reason. Although I accept that references are "commonly" obtained before people are taken into employment, the matter could not be put so high that the Court should infer that references were always obtained in every case. I do not think that the mere fact that this is a case about someone who was employed, and later dismissed, provides grounds for a belief that a document of that class necessarily exists.
28 The applicant said that she requested the respondents to contact the Department of Human Services before they employed her, and that it is most likely on the probabilities that the Department not only said something to the respondents about the applicant but did so in writing. Again, I consider that the reasonable possibility that such might have occurred is no ground for a belief that such a document in fact exists. As it happens, I have no evidence from the applicant that she did request the respondents to call the Department, but whether or not that happened, I consider that I am bound to take the respondents' verified list at face value, and to assume that if such a document has not been discovered, then it does not exist.
29 With respect to the Internet search which the applicant says that Lisa Miller conducted, once again the applicant has not provided any evidence about the activities of Mrs Miller in this regard, and there is nothing in the material before me, or in the nature and the circumstances of the case, from which I would be justified in believing that a document of that kind necessarily existed.
30 Turning to the question of computer records, I do not think that the nature and the circumstances of this case, as such, provide grounds for the belief that such documents exist, and would be discoverable in the normal course. I have no evidence about the nature of the documents to which the applicant refers. I rather gather that she has in mind some documents of a technical nature, possibly ones which would need to be created for the purposes of complying with her request. I know nothing about the relevant aspects of the operation of computers, and I think that the material upon which the applicant moves in this respect is quite inadequate to provide grounds for a belief of the kind that is referred to in O 15 r 8.
31 Finally, with respect to the applicant's request for further inspection, as distinct from production, of all the documents in the proceeding, I consider that her interest in seeing the original documents will be sufficiently satisfied if she avails herself of the opportunity to inspect them in the Registry of the court on 29 or 30 March. As I have indicated above, I gave her the opportunity to attend the office of the respondents' solicitors some time in advance of those dates, but it was not an opportunity of which she wished to avail herself. Further, Gray J previously ordered that discovered documents be inspected by the parties, and such inspection occurred in early July 2006. To the extent that the applicant has provided an evidentiary basis for her allegation that she was not then shown the originals of certain documents which may be important in the proceeding, her affidavit of 10 July 2006 refers to, and exhibits copies of, three documents only which are in this category. I considered whether to require the respondents to allow further inspection of those three documents, but the applicant made it quite clear both that she wanted a further inspection of everything, and that she was not going to undertake that inspection at the respondents' solicitors office. I do not believe I should impose upon the respondents the additional and unnecessary cost of facilitating a further inspection of documents which have already been inspected. Neither do I believe that I should require them to incur the cost occasioned by removing all the documents which are covered by their discovery to some external location. They apparently did that once in July 2006, and nothing which the applicant has put before me has satisfied me that that exercise should be repeated.
32 I shall, therefore, dispose of paragraph 4 of the applicant's Notice of Motion of 22 September 2006 by accepting the respondents' undertaking to which I have referred and by ordering that the applicant have leave to inspect the documents produced in the Registry of the Court by the respondents pursuant to their undertaking, upon appointment.
33 I turn next to paragraph 2 of the applicant's Notice of Motion. Under that paragraph the applicant sought that new parties be added to the proceeding arising under the HREOC Act, namely the Commonwealth Minister for Employment and Workplace Relations, the Commonwealth Department of Employment and Workplace Relations, and the Victorian Minister for Human Services. Since it was also the applicant's motion that that proceeding be joined with the proceeding arising under the WR Act, and since that joinder has since been effected, I am prepared to consider the appropriateness of the addition of new parties by reference to the consolidated proceeding in its now form.
34 The question whether a person not presently a party to a proceeding should be added thereto stands to be decided under O 6 r 8 of the Federal Court Rules. The question is whether the person ought to have been joined as a party in the first place, or should now be joined to ensure that all matters in dispute may be effectually and completely determined and adjudicated upon.
35 I consider first whether any of the proposed additional parties ought to have been joined as parties in the first instance. The only proper respondent to an application under s 170CP of the WR Act is the employer by whom it is alleged that the applicant's employment was terminated unlawfully pursuant to s 170CK, s 170CL or s 170CN of that Act. There is no suggestion that any of the proposed additional parties was relevantly the employer of the applicant. Accordingly, I would reject the applicant's motion insofar as it is based upon the proposition that these parties, or any of them, ought to have been joined originally.
36 Under s 46PO of the HREOC Act, an application to the court may be made only in relation to "unlawful discrimination by one or more of the respondents to the terminated complaint". The "terminated complaint" to which the section refers is the complaint in the Human Rights and Equal Opportunity Commission, the termination of which gave rise to the court's jurisdiction. In the present case, none of the parties proposed to be added was a respondent to the applicant's complaint in the commission. In the circumstances, none could have been joined as a respondent to these proceedings, and none can now be joined upon the basis that they ought to have been joined originally under par (b) of r 8(1) of O 6 of the Rules of Court.
37 I turn next to the question arising under par (a) of that sub-rule, namely, whether any or all of the persons now sought to be joined is, or are, necessary to be joined to ensure that all matters in dispute may be effectually and completely determined and adjudicated upon.
38 Insofar as it arises under the WR Act, the applicant's application is based upon an allegation that she was dismissed from her employment for reasons which were, at the relevant time, proscribed under s 170CK(2) of that Act. In allegations set out in her Statement of Claim dated 24 March 2006, the applicant referred to circumstances which might, arguably, arise under par (f) of s 170CK(2) of the WR Act From what appears in the Statement of Claim, termination of employment by reason of race, colour, religion, political opinion, national extraction and/or social origin may become relevant at trial.
39 By reason of orders previously made by the court, the applicant's proceeding arising under the HREOC Act, is limited to those of her allegations which arise under the RD Act. Essentially, the applicant will allege that she was dismissed from her employment by reason of her race, colour, or national or ethnic origin.
40 When the applicant's Notice of Motion was originally filed, it was not supported by affidavit. However, on 27 October 2006, the applicant filed an affidavit affirmed by her that day, in which she set out the grounds upon which she would rely in support of her motion. In relation to the Commonwealth Minister for Employment and Workplace Relations, the applicant said, (using the paragraph numbers in her affidavit):
11. Federal Minister for Employment and Workplace Relations Kevin Andrews' policies and practices unlawfully discriminate against the applicant and nullify applicant's legal rights in her employment in the face of law (in the Courts).
12. WRA 1996 and the Workplace Relations Amendment (Work Choices) Act 2005 is amongst other Government officials a construct of Mr Kevin Andrews and in its applications, this Act caused travesty of justice in relation to the applicant's matter of 2004 which is directly relevant and is directly affecting the current proceedings.
13. Applicant is of beliefs confirmed by the past direct experience and practice and the current practical experience of the application of the WRA 1996 in the Federal Court that the Act facilitates and encourages frauds by the unscrupulous employers, promotes criminal activities by the employers and actively protects criminal employers from prosecutions.
14. The Act as it has been and is applied in the applicant's cases has abused applicants, victimised applicant, nullified applicant's professional career and prospects of a future employment.
15. Applicant is of beliefs supported by the firsthand experience and exemplified by her current situation as the evidence that the application of the Act rises serious Question of law and in fact contravenes the principles of Law and Justice.
16. Applicant indents, will do and must held the Minister Kevin Andrews to be responsible for all injustices done to the applicant in the Courts applying the Act.
17. Applicant will challenge and it is necessary for her to challenge the application of the Act in relation to her matters on the Question of Law and thus, Mr Kevin Andrews is a direct party in her current proceedings.
41 In the paragraphs of her affidavit to which I have just referred, the applicant appears to allege that the Commonwealth Minister's participation is necessary because of his responsibility for the terms of the legislation under which she brings one of her applications, and for the departmental policies and practices which are said to nullify the applicant's legal rights in her employment and in the face of the law. Manifestly, propositions of this kind would not sustain the joinder of a Minister of the Crown to the consolidated proceeding, in either or both of its aspects. Indeed, had the Minister originally been joined for these reasons only (and ignoring for the moment the technical incompetence of any such joinder) the joinder would, I consider, most probably have been set aside as an abuse of process.
42 To the extent that the applicant seeks the joinder also of the Department of Employment and Workplace Relations, I consider that the proper respondent, if there were to be one, would be the Minister, and that the appropriate response to such an application would be as I have already stated.
43 In her affidavit of 27 October 2006 the applicant provided the following grounds for the joinder of the Victorian Minister for Children and Human Services, (again using paragraph numbers in her affidavit):
1. During the interviews for the employment at LaKosta, at about the end of October 2005 (about two weeks prior to the date of an actual commencement of employment of 07/11/05), I told Mr and Mrs Sterejov to contact the relevant Government Department prior to employing me in order to check if they get funding if they employ me and on what terms and conditions I can be employed, that is, to check if my teaching registration and qualifications satisfy the relevant Authorities.
(a) The position I applied for was a Government funded position.
2. Mrs Sheryl Garbutt is the Minister for Children and Human Services in Victoria.
3. I have written myself directly to her afterwards (after my employment was ceased) and received a written response.
4. Department of Human Services conducted inspections at this Centre and 2 documents dated 26/03/04 and 30/11/05 in that respect are included in the Exhibit A1.
5. During the conciliation conference at AIRC in relation to unlawful termination of employment on 10/11/05, Mr Kosta Sterejov stated to the Commissioner in an apologetic way that I was not supervised during my 4 days work at his Centre.
6. Only the relevant authority can give instructions that an employee must be supervised.
7. Mr Kosta Sterejov stated to me on 11/11/05 when I attended his office to collect final payment that I have already been reported.
8. Reporting must have been done to the relevant Authorities and the Minister for Children is such Authority.
9. Respondents in their List of Documents (already on the Court file), Part 2 referring to their advisers and another person confirming that there is undisclosed yet evidence of the information being exchange with third parties.
10. Minister's for Children policies and practices unlawfully discriminate against applicant in her professional life and nullify applicant's professional opportunities and future possibilities of employment in early childhood.
44 In this respect the applicant appears to be saying that, as a publicly funded institution, the childcare centre for which the respondents were responsible has had correspondence with the Minister's department which may be relevant in the proceeding, and that the Minister or the department has documents, or is referred to in documents, which may be relevant, may have power to give instructions that an employee be supervised, and has policies and practices which are said to discriminate against the applicant in her professional life and which would nullify her professional opportunities, and future possibilities of employment, in early childhood education. As to the latter aspect, I am not persuaded that the broad and specific allegations made by the applicant in her affidavit have, even prima facie, any relevant connection with the conduct of the respondents the subject of her allegations in the consolidated proceeding. Indeed, I consider that an attempt to introduce such matters as the policies and practices followed by the Minister - particularly to the extent that they are said to bear upon the applicant's professional opportunities and future possibilities - could have a tendency diametrically opposed to that referred to in par (b) of r 8(1) of O 6.
45 As to the connection between the Minister, or her department, and documents which may be relevant to the consolidated proceeding, I can see no reason why the due and fair administration of justice would require the Minister to be joined as a party. Indeed, to join another person as a party to an existing proceeding for no purpose other than to obtain access to documents which may be in the control of that person would, in my view, amount to an abuse of process. From the exchanges which I have had with the applicant on previous interlocutory occasions, I am satisfied that she is well aware of the procedural options available to a litigant with respect to obtaining, and presenting to the court, documents which are required for the proper presentation of her case.
46 As to the suggestion that the Minister's joinder as a party is necessary because of what is said to be her capacity to give directions for the supervision of employees, I am not persuaded either that any present issue raised in the consolidated proceeding would require the investigation of such matters or, if it did, that such investigation could not be economically and fairly conducted without the Minister being present in the capacity of a respondent. As I have said earlier in these reasons, because of the limited scope of the statutes under which each of the original proceedings was brought, the Minister could not have been made a respondent in the first instance. That is to say, no relief could have been sought against her (and, as it happens, none was). I accept that this consideration may not always be dispositive in an application under par (b) of r 8(1) of O 6, but it would, I consider, be a most unusual case in which the court took the view that it was necessary to join a new party as a respondent in order to determine, effectively and completely, the matters in dispute when no relief could have been, or could now be, sought against that party. In my view the present is a long way from being such an unusual case.
47 I propose therefore, to dismiss paragraph 2 of the applicant's Notice of Motion dated 22 September 2006.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jessup.