Davidson v McCann WorldGroup Pty Ltd

Davidson v McCann WorldGroup Pty Ltd - [2011] FCA 627 - FCA 2011 case summary — Zoe

[9]

The categories - general consideration 8 I turn now to the seven remaining categories which I reproduce and consider in turn. The parts marked underlined or deleted show the differences between the orders originally sought and the version handed up at the hearing. 9 I have assessed the merits of each category as it is framed. It is not the Court's task to read the expressions used in the categories in other than their plain meaning. Similarly, it is not the Court's task to recast the categories. As Tamberlin J said in KGL Health Pty Ltd v Mechtler [2008] FCA 273 at [9] in relation to the facts of that case: . . . I am of the view that the proposed classes of discovery, as presently framed, are too wide and at times not relevant, and therefore an order for discovery in those terms is not warranted. With some suitable modification, it may be that the classes could be more specifically stated to eliminate the objectionable expressions. . . . This is a matter to be resolved between the parties. 10 The applicant submitted that the Federal Magistrates Court is not a court of strict pleading. It is not clear to me that this is so across the entirety of that Court's jurisdiction. For example, a "Notice to Litigants and Practitioners" in that Court states: The grounds of an application must explain briefly the basis on which the orders are sought. In most instances the use of an application and affidavit will negate the need for pleadings but, where appropriate, pleadings will be ordered. This is particularly so in . . . some complex unlawful discrimination applications. In such instance an applicant may attach a pleading by way of points of claim. Such a pleading should observe the requirements of Federal Court Rules, Orders 11 and 12. It should identify in summary form the material facts on which the applicant relies, but not the evidence by which those facts are to be proved. All necessary particulars must be given. I have not however found it necessary to take any strict view of the Amended Points of Claim in disposing of this application. 11 I also make this further preliminary observation. Contrary to the submissions of the applicant, I do not regard the concept of "reasonable search" in O 15 r 2 of the Federal Court Rules as an answer to the framing of categories which are too wide. The former concept applies to relevantly drawn categories: it is not an excuse for insufficiently rigorous identification of the issues or the imprecise articulation of proposed categories. To adopt the applicant's approach would not further the just resolution of disputes according to law nor that that resolution be done as quickly, inexpensively and effectively as possible. I accept however that "reasonable search" may, in a particular case, be relevant to oppression: see Galati v Potato Marketing Corporation of Western Australia (No 2) [2007] FCA 919 at [59].

[11]

Category 1(b) - any email communications that came into existence from 1 January 2004 to 9 February 2007 that have not yet been discovered by the Respondents between the First Respondent and/or its officers, employees, agents, legal advisors, financial advisers and/or other representatives of the First Respondent or any one of them and/or between the First Respondent and/or its officers, employees, agents, legal advisers, financial advisers and/or other representatives of the First Respondent or any one of them and the Applicant about maternity leave, parental leave and part-time and/or other flexible work arrangements for other employees of the First Respondent. 13 I note that this category, as framed, is concerned with internal communications (emails) within, broadly, the first respondent and also with communications between the first respondent and the applicant about leave and work arrangements for other employees of the first respondent. I understood the applicant to have accepted in argument that it was not intended to cover all internal communications but only those between the first respondent and its representatives on the one hand and the applicant on the other hand and that the paragraph therefore contained surplus words. 14 The first respondent's opposition to this category was based on relevance and oppression. 15 I note that even reading this category as limited to email communications, the period now covered is some 3 years. I also note that the communications are not limited to complaints. Further, the "other employees" are not identified in the proposed category. I also note that the communications in question are not confined in terms to the flexible working arrangements the subject of the proceedings. 16 More broadly, I am not persuaded that communications between the first respondent and the applicant about certain work conditions of (all) other employees bears on the issues in the case. 17 I also take into account the time and associated cost matters deposed to by Mr Davidson although at the date of his affidavit there was no limitation as to time in this category. 18 Having regard to the issues in the proceedings, I shall not exercise my discretion to order production as sought in paragraph 1(b).

[18]

Category 1(i) - documents created in the period from1 May 2002 January 2003 to 9 February 200731 December 2006 that record, refer to or otherwise evidence complaints made by, disputes with and/or issues raised by employees of the First Respondent in relation to the parental and/or maternity leave policy, discrimination, redundancy or the treatment of women in the employ of the First Respondent, but excluding any documents that are of an administrative nature. 37 The applicant submits that the documents in this paragraph relate to the question of indirect discrimination by the first respondent against certain female employees as pleaded in paragraphs 55 and 56 of the amended points of claim. 38 Paragraph 55 alleges that the respondent imposed a condition, requirement or practice that employees of the respondent, including the applicant, work full time. Paragraph 56 alleges that the respondent's stated views on part-time employees and women with carer's responsibilities created a hostile work environment for women. Further reference is made to paragraphs 13 to 15 of the amended points of claim to which I have referred above. 39 The first respondent objects to this discovery category on the basis of relevance, that it constitutes a fishing exercise and is oppressive. 40 As to oppression, I note Mr Davidson states in his affidavit that in the period originally nominated in this proposed category, 1 May 2002 to 9 February 2007, the first respondent employed 1,246 persons and a number of them took paid and/or unpaid parental leave in the same period. 41 Mr Davidson also states that in the period 1 January 2004 to 9 February 2007 the first respondent relevantly employed no dedicated human resources personnel other than a payroll officer. More importantly, the first respondent did not, in that period, keep any centralised records of complaints. 42 I accept, although put at a level of generality, that searches of personnel files, historical emails and other electronic data files would be difficult, time consuming and costly. 43 As to relevance, the documents referred to in this category appear to me to be far wider than documents relating to the subject matter of the proceedings. This operates in various ways. 44 First, in my view, complaints made, disputes raised and issues raised are insufficiently related to the issues in the proceedings. Second, "parental . . . leave policy", "maternity leave policy, discrimination, redundancy or the treatment of women in the employ of the first respondent" are, at that level of generality, also insufficiently related to the issues in the proceedings. Third, the expression "record, refer to or otherwise evidence" is similarly too broad. 45 I also do not accept that the addition of the phrase "but excluding any documents that are of an administrative nature" cures these defects. Indeed that phrase has difficulties of its own and is not an expression appropriate for an order for discovery, at least in this case. The parties may know what they mean by the phrase but it is not evident. 46 The applicant relied on Hendrickson v Yarra Bay 16 ft Skiff Sailing Club Ltd [2011] NSWADT 37 but that decision cannot assist with the terms of the allegations in the present case. Here "the hostile work environment" is alleged to have been created by "[t]he Respondent's stated views on part-time employees and women with carer's responsibilities". 47 On these bases I will not exercise my discretion to order discovery in the terms sought in this category. In so deciding I do not find it necessary to grapple with the slippery metaphor of "fishing" in the context of contemporary practice and procedure.

[19]

Orders 48 In relation to each remaining contentious category, I am not deciding that there are no documents that would or might be relevant. However, as I have said above, it is not part of the Court's task to redraft the categories so as to identify with precision or delineate what those documents or classes or categories may be. I am dealing with the categories as framed. It is for the applicant and her legal advisers to identify what material is likely to be relevant to an issue in the proceedings and to frame a category accordingly. What appears to have happened here is that the categories have been written at a level of generality where the most that could be said is that there may be some relevant material within the category but otherwise the category is too generally expressed and is therefore insufficiently relevant to issues in the proceedings. 49 For these reasons I dismiss the applicant's application for discovery in categories 1(b) to (c) and 1(e) to 1(i). 50 In relation to costs, the order I make is that the costs of the motion be costs in the cause. 51 In matter NSD 451 of 2011 the parties are agreed on the following category and requested that an order to be made in these terms: 1. That the First and Second Respondents provide discovery within 14 days of the documents identified in paras 2, 3, 6, 7, 8 and 9 of the List of Categories to be discovered by the Respondents dated 3 September 2010 being annexure "J" to the Affidavit of Sandra Marks sworn on 1 April 2011, plus; • Documents evidencing, recording or referring to the communications which took place during the conciliation of the Applicant's complaint on 22 January 2008 before the Australian Human Rights Commission; and • Documents evidencing, recording or referring to the communications which took place at a dinner that occurred on 29 March 2008, at which the Second Respondent was present. 52 Since those categories are agreed I shall make an order in those terms. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.

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