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[2021] VCAT 1010
General information, not legal advice.
Victorian Civil and Administrative Tribunal
2021-09-03
Ms J
Original judgment source is linked above.
The applicant's submissions rest on the false premise that there is a particular legal test for discovery to be applied by the Tribunal in every case.
The Tribunal is not bound by 'any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures'.[4] There is no suggestion that, in this matter, the Tribunal has adopted the rules of practice and procedure which govern discovery in court proceedings. Rather, in discharging its duty to 'act fairly and according to the substantial merits of the case in all proceedings',[5] the Tribunal 'may inform itself on any matter as it sees fit'.[6] It 'may give directions at any time ... and do whatever is necessary for the expeditious or fair hearing and determination of a proceeding'[7] .
It is a matter for the Tribunal to determine in each proceeding, having regard to these and other provisions of the VCAT Act, whether the parties are to be subject to an obligation to make discovery of documents and, if they are, to tailor the extent and nature of that obligation so that it is appropriate and adapted to the case at hand.
9 Section 97 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) states that:
The Tribunal must act fairly and according to the substantial merits of the case in all proceedings.
10 Section 98 of the VCAT Act states, in part, that the Tribunal is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures, and that it may inform itself on any matter as it sees fit. It must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed as the requirements of the VCAT Act and the enabling enactment and a proper consideration of the matters before it permit.
... the Tribunal can and frequently will gain assistance from reference to the rules of evidence and to the practices and procedures of courts of record. It is not bound by such rules, practices or procedures, but is bound to act fairly, and this includes the affording of procedural fairness. In arriving at the procedure to be adopted, it is a matter for the Tribunal itself to determine, bearing in mind the requirement for fairness, and bearing in mind what was described by Woodward J (in Macdonald v Director General of Social Security (1984) 1 FCR 354) as "considerations of natural justice or common sense". As stated, the established rules of evidence and of practice and procedure may assist in this regard, and particularly where the matter is proceeding as an adversarial contest.
12 It is the VCAT Act that must guide my decision. To the extent that, as Bowman J proposes, I may gain assistance in this matter from reference to the practices and procedures of courts of record, I turn to Rule 29.01.1 of the Supreme Court (General Civil Procedure) Rules 2005 (SC Rules), noting that analogous rules exist in the County and Magistrates' Courts.
13 I have earlier referred to section 54 of the CP Act. This does not set out a test for discovery in Victoria; it provides that discovery is to occur in accordance with the Rules of the relevant Court. There are no rules with respect to discovery in this Tribunal other than those afforded by sections 97 and 98 of the VCAT Act, but I have considered Rule 29.01.1 of the SC Rules. This is not to say that these rules are binding on the Tribunal; the CP Act makes it clear that they are not. They may, however, offer assistance.
(1) Unless the Court otherwise orders, discovery of documents pursuant to this Order is limited to the documents referred to in paragraph (3).
(2) Paragraph (1) applies despite any other rule or law to the contrary.
(3) Without limiting Rules 29.05 and 29.07, for the purposes of this Order, the documents required to be discovered are any of the following documents of which the party giving discovery is, after a reasonable search, aware at the time discovery is given -
(b) documents that adversely affect the party's own case;
(c) documents that adversely affect another party's case;
(a) if a party giving discovery reasonably believes that a document is already in the possession of the party to which discovery is given, the party giving discovery is not required to discover that document;
(b) a party required to give discovery who has, or has had in his, her or its possession more than one copy, however made, of a particular document is not required to give discovery of additional copies by reason only of the fact that the original or any other copy is discoverable.
(5) For the purposes of paragraph (3), in making a reasonable search a party may take into account -
(d) the significance of any document to be found; and
14 The Applicants sought discovery of the following documents, for the period November 2017 to September 2020.
All correspondence between staff at the school with each other, and any other employee of the Respondent, including but not limited to:
vii. all complaints to Deputy Secretary on behalf of [MCN];
viii. all complaints to [name redacted on behalf of [MCN];
xviii. the decision to send anonymous emails to [CGJ].
Category 2 seeks 'All correspondence between staff of the First Respondent and any external person, (other than from/to [CGJ] and [name redacted]) relating to [MCN]'s disabilities/ behaviours/medication'.
17 The Respondents confirmed that it would undertake those enquiries:
Noting that this category seeks 'all correspondence between staff of the First Respondent', the First Respondent confirms that it will undertake these enquiries in good faith, having regard to those persons it has identified as potentially holding information relevant to the proceeding. These searches will be comprehensive, but proportionate.[10]
18 On this basis, the Applicants withdrew Category 2 from the list, noting as follows:
Your comments are noted. We expect that your searches will be commensurate with your discovery obligations.[11]
19 I have included reference to Category 2, and Categories 3 - 19 even though there was agreement about discovery with respect to those categories, for reasons that I will explain.
20 Under Categories 3 - 19, the Applicants requested:
Category 5: All notes made by any staff working for the Respondent that mention:
Category 6: The content of all Student Support Service Officer files in relation to [MCN].
Category 8: All meeting minutes regarding [MCN] or [CGJ] (whether attended by [CGJ] or not).
Category 11: All behavioural data, including the data that informed the 'Functional Behaviour Analysis' completed by [name redacted].
Category 13: All academic assessments and work completed by [MCN] between March and September 2021.
Category 15: All lesson plans written in relation to teaching [MCN].
Category 17: Records of any training of [name redacted] in Functional Behaviour Assessments and Functional Behaviour Analyses.
Category 18: All versions of the Respondent's medical policy with relevant dates.
Category 19: All medical plans in relation to [MCN] held by the Respondent.
21 Under Categories 20 and 21, the Applicants requested:
Category 20: Documents/notes setting out discussions/decisions regarding financial savings/proposed financial savings including but not limited to a reduction in staffing from 2017.
Category 21: Profit and loss statements and balance sheets for [name redacted] Primary School from 2017-2020 inclusive.
22 With respect to Category 1, the Applicants said that they seek every piece of correspondence written by an employee of the First Respondent that mentions MCN and CGJ, because in part they seek production of all correspondence about MCN's education. The Respondents submitted that, as the role of the First Respondent was in providing education, no correspondence would fall outside that category. The Respondents submitted[12] that Category 1 was too broad, and constituted a fishing expedition. They also submitted that the documents were not relevant to the proceeding, and that their probative value was outweighed by the substantial imposition involved in processing the request, the cost of which would be wholly disproportionate to the issues in dispute and the alleged value of the claim. The Respondents said that they had produced the documents sought in all categories but for Categories 1, 20 and 21, and in doing so had produced 1,300 documents, some of those being hundreds of pages in length.
...genuinely want to provide proportionate and fulsome discovery, and to progress this matter as expeditiously as possible. To that end, we confirm that to the extent that any correspondence between staff of the First Respondent to each other attaches the information or documents sought in Categories 3 to 19 and 22, that correspondence will be produced to the Applicants by the Respondents, consistent with the categories agreed between the parties.
24 The Applicants said, with respect to the documents already produced, that quantity was no substitute for specificity. The Applicants identified, with respect to each of the documents sought in Category 1, the reference to or connection with the Particulars of Claim filed on 29 January 2021.
25 With respect to Categories 20 and 21, the Respondents submitted that these are not relevant to an issue in the proceeding, or the parties' pleaded cases. Specifically, they submitted, it is not alleged that the Respondents discriminated against the Applicants on the basis of the Respondents' finances, and this is not a case where the Respondents have indicated that any alleged conduct was reasonable having regard to the Respondents' financial position.[13]
26 The Applicants submitted that the documents sought are relevant. The Applicants say that they allege that the principal of the school limited support to MCN on the basis of funding to the school, and that the Applicants are entitled to test whether that is true.
27 The Respondents disagreed, saying that the allegations are that the school principal made comments about funding for aides. The scope of Categories 20 and 21 go beyond aide funding and extend to the whole financial position of the school.[14]
28 The Respondents have stated in submissions and correspondence[15] that they "genuinely want to provide proportionate and fulsome discovery". I have no reason to doubt that the Respondents and their legal representatives are aware of obligations imposed by the rules as to discovery that apply in courts in Victoria, even noting that these do not directly apply in this Tribunal. The obligations under the CP Act include the obligation to disclose any documents critical to the resolution of the dispute (section 26) and to not mislead or deceive (section 21). There is no evidence that the Respondents are failing to comply with these obligations. There are other overarching obligations set out in the CP Act, including the obligation, applying to both the Applicants and the Respondents as do all the obligations, to ensure that costs are reasonable and proportionate (section 24). The Respondents said that they have produced the documents sought in all categories but for Categories 1, 20 and 21, and in doing so have produced 1,300 documents, some of those being hundreds of pages in length. The Applicants say that quantity is no substitute for specificity.
29 In Liesfield v SPI Electricity Pty Ltd & Ors (Ruling No 1)[16], Forrest J said, with reference to the CP Act and the relevant SC Rule, that:
These provisions make clear that the Court's powers in relation to discovery are broad. In sum, both the Act and Rules mandate that any order concerning discovery should be directed to finding the most efficient, effective and economical management of the discovery exercise, bearing in mind the nature and complexity of the trial.
30 Subsequently, in Volunteer Fire Brigade v CFA[17], Forrest J said:
...where discovery potentially requires extensive trawling through databases and emails, a court must be conscious of the words of the High Court in Armstrong and obligations under the CPA. As I said in Liesfield, the days of the search for the smoking gun are gone. The key is ensuring the discovery exercise is proportionate not only to the relevance of the issues, but also to the likely cost to be incurred bearing in mind that it is the trial that is the focus of the proceeding and not the discovery fight.
31 I have referred to the SC Rules and these cases bearing in mind, however, the words of Bowman J in State of Victoria v Bradto:
I again repeat that this is not a court of pleadings. Counsel on behalf of the respondents referred to such things as non-compliance with "the Rules" and to the procedures that would be adopted in the Supreme Court of Victoria. Of course, ... there are no rules as such relating to discovery at this Tribunal.[18]
32 Returning to the specific discovery requests, and bearing all of the above in mind, I make these orders aiming to keep discovery proportionate to the relevance of the issues it addresses and to its likely costs. In other words, to the extent that the Applicants seek discovery in categories of documents where the cost of searching for and identifying the documents is high and the likely return of relevant documents is low, I will not order discovery in those categories.
33 With respect to almost all of the Category 1 documents, I do not direct the Respondents to produce those documents except to the extent that they have already done so, or already agreed to do so. Given that the Respondents have agreed to produce all correspondence between staff of the First Respondent to each other that attaches to the information or documents sought in Categories 3 to 19 and 22, and have agreed to produce all documents referred to in Category 2, I am sufficiently satisfied that no relevant documents are likely to be withheld. I specifically refer to Category 2, and refer to paragraphs 12 - 14 above for details as to Category 2, and also to Category 5, which is the request for all notes made by any staff working for the Respondent that relate to requests set out in eight sub-categories to Category 5, including MCN's education, therapy, behaviours, medication, staff grabbing or holding MCN, telephone calls CGJ, interactions between CGJ and the school and other matters. As the Respondents have agreed to produce correspondence in addition to notes with respect to these sub-categories and the other Categories 3 to 19 and 22, this appears to amply meet the request set out in Category 1. Without referring in detail to each component of Category 1, I note by way of example that 1(xvii) is encompassed by 5(n), 1(xiv) by 5(k), 1(iv) by 5(f).
34 The only aspect of the requests set out in Category 1 that does not appear to be encompassed by the other Categories is 1(xi), the Student Support Group meeting minutes dated 18 December 2017. Correspondence with respect to this should be produced in the same way as has been agreed with respect to the Student Support Group meeting dated 21 February 2019 as requested in Category 5(m).
35 I do not doubt that all parties intend to use reasonable endeavours to resolve the matters in this proceeding to the extent possible, and to ensure that costs are reasonable and proportionate. The Respondents have said that there would be a substantial imposition involved in processing the request set out in Category 1, and that the cost of doing so would be wholly disproportionate to the issues in dispute and the alleged value of the claim. The SC Rules set out at Rule 29.01.1(5) that, in making a reasonable search, a party may take into account:
(d) the significance of any document to be found; and
36 Applying sections 97 and 98 of the VCAT Act which require me to act fairly including to afford procedural fairness, and in doing so, in this matter, being assisted by reference to the considerations set out in the SC Rules, I accept that the difficulty and cost of processing the Category 1 request is a relevant consideration, as are the nature of the proceeding and the scope of the claim.
37 Finally, I do not direct the Respondents to produce documents as requested in Categories 20 and 21. It is not appropriate or necessary, at least at this stage, for the Respondents to be required to produce or disclose information about the financial position of the [name redacted] Primary School.
[1] State of Victoria v Bradto Pty Ltd (Palace Entertainment Complex) and Tymbook Pty Ltd (Palais Theatre) (Retail Tenancies) [2005] VCAT 2261 [4] (13 October 2005) (State of Victoria v Bradto).
[2] State of Victoria v Bradto Pty Ltd (Retail Tenancies) [2005] VCAT 1872 [12] (7 September 2005).
[3] Bashour v ANZ & Ors [2020] VSC 478 [63-65] (5 August 2020).
[4] Moore J referred here to section 98(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act).
[5] Moore J referred here to section 97 of the VCAT Act.
[6] Moore J referred here to section 98(1)(c) of the VCAT Act.
[7] Moore J referred here to section 80(1) of the VCAT Act.
[8] State of Victoria v Bradto Pty Ltd (Palace Entertainment Complex) and Tymbook Pty Ltd (Palais Theatre) (Retail Tenancies) [2005] VCAT 2261 (13 October 2005) [15].
[9] Golem v Transport Accident Commission [2002] VCAT 319 7.
[10] Letter from Minter Ellison to Ms J Phillips 3 June 2021
[11] Letter from Ms J Phillips to Minter Ellison on 9 June 2021
[12] Letter from Minter Ellison to Ms J Phillips 3 June 2021
[13] Letter from Minter Ellison to Ms J. Phillips dated 3 June 2021.
[14] Letter from Minter Ellison to Ms J. Phillips dated 16 June 2021.
[15] Letter from Minter Ellison to Ms J. Phillips dated 16 June 2021.
[16] Liesfield v SPI Electricity Pty Ltd & Ors (Ruling No 1) [2013] VSC 634 (27 November 2013).
[17] Volunteer Fire Brigades Victoria v CFA (Discovery ruling) [2016] VSC 573 [36] (29 September 2016).
[18] State of Victoria v Bradto [12] (13 October 2005).
CGJ obo MCN
State of Victoria
(1984) 1 FCR 354