Doherty v Prospa Advance Pty Ltd

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. On 30 April 2024, on the basis of reasons I published on that day (earlier reasons), I made an order setting aside a notice to produce (earlier notice to produce) the applicant, Ms Doherty, issued to the respondent (Prospa).[1] The proceeding has progressed to the point where the parties have filed their evidence in chief, and a hearing date has been set commencing on 24 June 2025.
2. In these circumstances, Ms Doherty has issued another notice to produce addressed to Prospa substantially in the same terms as the earlier notice to produce. Prospa now applies to set aside the notice to produce, principally on the ground that it is an abuse of process, given the reasons for which I had set aside the earlier notice to produce.
3. Prospa itself has issued a notice to produce; and although Ms Doherty has produced documents in answer to paragraph 1 of that notice to produce, Ms Doherty applies to set aside paragraph 2 of the notice to produce on the ground that it calls for material that is irrelevant to any issue in the proceeding.
4. In these reasons for judgment, therefore, I consider the applications each of Ms Doherty and Prospa make to set aside the notices to produce the other has issued.

1. Ms Doherty's notice to produce calls for the following documents:
   1. A copy of any ".pst" for the . . . email address eleanor.doherty@prospa.com from 18 January 2022 and 11 April 2023.
   2. A copy of the calendar maintained by the Applicant on "outlook" relating to the email address eleanor.doherty@prospa.com from the period 18 January 2022 and 11 April 2023, including copies of any deleted appointments that had been maintained by the Applicant on that outlook calendar.
   3. A copy of all messages sent and received by the Applicant, including associated time stamps, via the "slack" messaging system for the period 18 January 2022 and 11 April 2023.
   4. A copy of records maintained on or by the "slack" messaging system as to the status of the Applicant on that system, showing the times that she was "online" or otherwise active as indicated on the "slack" system for the period 18 January 2022 and 11 April 2023.
   5. A copy of any records maintained by the Respondents on their IT systems showing the dates and times that the Applicant was signed into her windows operating system for the period 18 January 2022 and 11 April 2023.
   6. A copy of the "product roadmaps" prepared and maintained during the period 18 January 2022 and 11 April 2023 for the:
      1. New Zealand line of credit;
      2. Business Account, and
      3. Overdraft.
   7. A copy of the Product Marketing Trello Boards prepared and maintained during the period 18 January 2022 and 11 April 2023 for the:
      1. New Zealand line of credit launch, and
      2. Business Account launch.

1. Ms Doherty, by her counsel, submits as follows:

(a) The documents called for by the notice to produce are relevant to Ms Doherty's case based on an alleged breach of s 62 of the Fair Work Act 2009 (Cth) (FW Act) because she intends to establish her case by adducing evidence that shows she consistently worked more than 38 hours a week; and, on the basis of such evidence, contends that she has consistently worked more than 38 hours a week because Prospa required her to do so.

(b) In her affidavit in chief filed on 13 November 2024, Ms Doherty has given the best evidence she is able to give about the hours she worked while employed by Prospa. Moreover, Ms Doherty has identified the documents she deposes are within the power and possession of Prospa which are likely to evidence and give more precise details of the hours Ms Doherty worked.

(c) In the affidavit made by Ms Kytic on 25 February 2025, which constitutes Prospa's evidence in chief, Ms Kytic annexes or refers to classes of documents of the sort described in the notice to produce; and it would be unfair to permit Prospa to select from its documents those which it considers favour its case, and deny to Doherty documents which assist or may assist Ms Doherty's case.

(d) The earlier reasons do not bar Ms Doherty's seeking the production of substantially the same documents as the documents called for by the earlier notice to produce. Ms Doherty submits I had set aside the earlier notice to produce because I was not satisfied that Ms Doherty had shown that she cannot articulate her claims with any greater specificity than she has because Prospa, not Ms Doherty, has the information that is necessary for her to do so;[2] but now Ms Doherty has filed an affidavit in which she makes it clear that she cannot articulate her claims with any greater specificity unless she has access to the documents called for by the notice to produce.

1. Prospa, for its part, submits that the earlier reasons constitute a barrier to Ms Doherty being entitled to the production of the documents called for by the notice to produce. Counsel for Prospa referred me to passages from the earlier judgment which Prospa's lawyer reproduced in her letter dated 14 April 2025, which includes the following:[3]

[The PoC] does not satisfy the minimum requirements for stating a case based on a breach of s 62(1) of the FW Act; it simply alleges that the respondent "regularly required the Applicant to work approximately 70 hours per week including on weekends and most public holiday". This allegation is bereft of the most basic information. It does not identify by reference to date or time or place the occasions on which it is alleged the respondent required the applicant to work additional hours; it does not identify whether it is alleged that on each of those occasions the respondent conveyed the requirement expressly or impliedly; and consequently, to the extent the applicant intends to allege the respondent conveyed the requirement impliedly, the PoC does not identify the facts and matters on which the applicant intends to rely for so alleging. That the respondent has filed a defence to the PoC does not alter the fact that the PoC does not satisfy the minimum requirements for stating a case based on a breach of s 62(1) of the FW Act.

1. Prospa submits that Ms Doherty has not remedied the deficiencies of the points of claim I identified in the earlier reasons.
2. On 28 April 2025, after the hearing of the applications to set aside the notices to produce, and after I listed the applications for judgment at 2.15 pm on 29 April 2025, Ms Doherty and Prospa provided further written submissions, purportedly pursuant to leave I granted at the hearing. I intended that the leave would be restricted to an issue I had raised during the hearing, namely, whether it is permissible to issue a subpoena or notice to produce solely for the purpose of challenging a person's credit. Further, Prospa also submitted an affidavit made by its solicitor (Oppression Affidavit) deposing to matters in support of the submission that it would be oppressive to require Prospa to produce the documents called for by Ms Doherty's notice to produce. Prospa did not have leave to present such affidavit. At 9:47 am on 29 April 2025 Ms Doherty provided written submissions in relation to Prospa's additional written submissions and the Oppression Affidavit. At 1:45 pm on 29 April 2025, a half hour before the matter had been listed for judgment, Prospa filed further written submissions.
3. Ms Doherty in her additional written submissions repeats the substance of the matters her counsel submitted at the hearing. Prospa, in its additional written submissions, submits the documents called for by Ms Doherty's notice to produce are overly broad. And, given the matters stated in the Oppression Affidavit, compliance with Ms Doherty's notice to produce will cause oppression and would "otherwise be inutile". Prospa does not in its additional written submissions address the submissions counsel for Ms Doherty made at the hearing.

1. I accept Ms Doherty's submission that the reasons for which I set aside the earlier notice to produce are not a bar to Ms Doherty issuing a fresh notice to produce seeking the production of substantially the same documents as the earlier notice to produce called for. An essential premise to my setting aside the earlier notice to produce was my not being satisfied that Ms Doherty showed "that she cannot articulate her claims with any greater specificity than she has because the respondent, but not the applicant, has the information that is necessary for her to do so".[4] The position, however, has changed. Ms Doherty, by her counsel, submitted that Ms Doherty's case will be that, during the period of her employment with Prospa, she consistently worked more than 38 hours a week; and, assuming she is able to establish that fact, it should be inferred from that fact that Ms Doherty worked more than 38 hours a week because Prospa required or requested that she do so. Such a case falls within the points of claim as currently filed. Further, Ms Doherty has sworn an affidavit in which she deposes that, if she had access to the records she identifies, she "could be far more specific about the precise hours" she worked.[5]
2. It may be, as Prospa submits, that the points of claim suffer from the deficiencies I identified in the earlier reasons; but Prospa has not applied to strike out that part of the points of claims that relies on an alleged breach of s 62 of the FW Act. That means the proceeding has progressed, and will continue to progress, on the basis of the points of claim as they currently stand; and the legitimacy of the purpose for which Ms Doherty seeks the production of the documents called by her notice to produce is to be assessed by reference to whether the documents are apparently relevant to the issues raised by Prospa's defence to the points of claim.
3. The documents identified in the notice to produce are apparently relevant to the issue of the hours Ms Doherty worked being, as I have noted, an essential premise to the case Ms Doherty intends to advance; and they are documents that are solely within the possession and control of Prospa. Further, I am satisfied that Ms Doherty cannot state with any greater specificity the hours she worked without gaining access to the documents identified in the notice to produce. For these reasons, I am satisfied that Ms Doherty has issued the notice to produce for a legitimate forensic purpose and, therefore, it should not be set aside.
4. I am not prepared to find on the basis of the Oppression Affidavit that it would be oppressive to require Prospa to produce the Slack messages. First, the Oppression Affidavit ignores the fact that in paragraph 56 of her affidavit Ms Kytic deposes that she "pasted . . . screenshots comprising representative examples of some of the messages [Ms Doherty] sent to [Ms Kytic] or in Slack". This may suggest that Prospa has the facility to search through Slack messages, and it has done so, at least to some extent, for the purposes of this proceeding. Second, I would be reluctant to make any finding about oppression in the absence of evidence from a person skilled in the accessing of documents created on the Slack platform of what those difficulties might be.
5. I therefore propose to dismiss Prospa's application to set aside Ms Doherty's notice to produce. I propose to do so on terms that the parties have liberty to apply in relation to any issue that may arise from Prospa's having to produce the documents called for by the notice to produce. I had proposed to grant such liberty to apply before Prospa provided the Oppression Affidavit; and that is because in correspondence between the parties, Prospa's lawyer stated that production of the documents will be burdensome.

1. Paragraph 2 of Prospa's notice to produce calls for the following documents:

All Documents recording or comprising travel or flight bookings or itineraries and any flight and/or accommodation arrangements for the Applicant's travel to Thailand in or about December 2022 to January 2023, including any Documents evidencing the booking(s) and/or cancellation(s) of any of the Applicant's flights or accommodation.

1. Prospa has articulated on four occasions the purpose or purposes for which it says it seeks production of the documents. The first is in its solicitor's letter to Ms Doherty's solicitor dated 25 March 2025 in which it is said that the documents are relevant to paragraph 93 of Ms Doherty's affidavit. Ms Doherty there deposes that she began to relax reasonably quickly when, in December 2022, she flew oversees for a holiday, noting that, during the weeks and months before she left she had been under so much pressure and anxiety that, when the pressure started to subside after around two days, she remembered feeling like a wave of exhaustion rolled over her, which she believed was due to her having stopped being full of adrenaline, and she basically collapsed. In her letter dated 25 March 2025 Prospa's solicitor said:

Ms Kytic has deposed that she denies ever requiring or expecting your client to work while she was on annual or personal leave and that Ms Doherty insisted on ta king her laptop to Thailand.

Further, we are instructed that your client's return to work from Thailand was delayed, and your client attributed this delay to flight issues, compounded by her illness. We understand that this resulted in your client extending her time in Thailand and working remotely from Thailand.

1. The second occasion on which Prospa articulated the asserted relevance of the documents called for by the notice to produce is in the letter Prospa's solicitor sent to Ms Doherty's solicitor on 1 April 2025, in which Prospa's solicitor said:

Nonetheless, your client has deposed to the fact that she worked during her trip to Thailand, and your client and Mr Cleary further depose to Ms Doherty becoming ill during her trip, which they attribute to your client's allegedly excessive workload. Ms Doherty refers to herself in her affidavit sworn on 13 November 2024 (Doherty Affidavit) as a "high stress worker" and deposes to suffering from "leisure sickness" (paragraph 93 of the Doherty Affidavit).

. . . .

Your client claims loss and damage arising from the adverse health consequences, which she attributes to the alleged unreasonable hours she worked while employed by Prospa. This claim is both in the Points of Claim filed on 25 August 2023, and in the Proposed Amended Points of Claim.

As such, documents relating to your client's alleged work-related illness, including evidence that this illness caused a delay to your client's return to work from her trip to Thailand, are clearly relevant to facts in issue in the proceedings and also to your client's and to Mr Cleary's credit.

1. The third occasion on which Prospa articulated the purpose for which it seeks the documents identified in paragraph 2 of the notice to produce was at the hearing of Ms Doherty's application to set aside paragraph 2 of the notice to produce. Counsel for Prospa submitted that Prospa intended to contend at the hearing that, while she was in Thailand, Ms Doherty informed Prospa that the flight had been cancelled, and she requested permission to work remotely in Thailand; but this was incorrect because Ms Doherty had always intended to stay there for the period she in fact stayed in Thailand. Counsel submitted that this goes to Ms Doherty's credit. Counsel also submitted that the documents were relevant to paragraph 25 of Ms Kytic's affidavit in which Ms Kytic denies she ever required or expected Ms Doherty to work during any period on which she was on annual or personal leave.
2. The fourth occasion on which Prospa has specified the purpose for which it seeks the documents specified in paragraph 2 of its notice to produce is in its additional written submissions. Prospa there submits that the purpose of the documents called for in paragraph 2 of its notice to produce is to test the evidence Ms Doherty gives in paragraphs 92-94 of her affidavit that, while in Thailand, she suffered from "leisure sickness", a condition she appears to intend to contend was brought about by the relatively sudden cessation of high intensity work. Prospa submits it has reason to doubt this evidence because Ms Doherty remained in Thailand longer than her initially approved leave period; Ms Doherty did not have sufficient leave to cover the period of time for which she ultimately was away; and there is evidence that Ms Doherty requested that she be permitted to work.
3. During the hearing, my attention was drawn to some authorities that discussed the extent to which a subpoena or notice to produce may legitimately be issued solely for the purpose of a witness's credit. Particularly useful is the judgment of Pembroke J in Thomas v SMP (International) Pty Ltd (No.2).[6] It is unnecessary to refer to these principles because I am satisfied that the documents called for by paragraph 2 are not reasonably capable of supporting any of the purposes Prospa has articulated in correspondence.

(a) First, it is not apparent how the documents called by paragraph 2 of Prospa's notice to produce are capable of shedding any light on whether Ms Doherty was expected to work while on annual or personal leave; and, in any event, Ms Doherty does not allege Prospa required or expected her to work while on any such leave.

(b) Second, apart from Ms Doherty deposing to working at the airport lounge on 17 December 2022, I am unable to identify Ms Doherty's deposing that she worked while she was in Thailand; and even if Ms Doherty has so deposed, it is not apparent how the documents called for by paragraph 2 of the notice to produce could shed any light on whether Ms Doherty did any work while in Thailand.

(c) Third, Ms Doherty has not deposed, and she otherwise has not alleged that her return to work from Thailand was delayed, and that Ms Doherty attributes this delay to flight issues. It appears that this is something Prospa intends to put to Ms Doherty on cross-examination. In the absence of Ms Doherty's not having so deposed, or otherwise having so alleged, no question of credit can arise. Ms Doherty's credit could potentially arise only if, at the hearing, it were to be to put to Ms Doherty in cross-examination, and Ms Doherty were to deny, that she did not in fact alter her flight schedule, but that she had scheduled her stay in Thailand for the period she in fact stayed there. And even if this were to occur, and Prospa would wish to contradict Ms Doherty's denial by adducing evidence, Prospa would have to meet the requirements of s 106 of the Evidence Act 1995 (Cth).

(d) Fourth, Ms Doherty has not deposed that she had planned to take leave in Thailand for any particular period that is shorter than the period she had in fact taken. In the absence of Ms Doherty having so deposed or otherwise having so alleged, no question of credit can arise. Ms Doherty's credit could potentially arise only if, at the hearing, it were to be to put to Ms Doherty in cross-examination, and Ms Doherty were to deny, that she did not in fact alter her flight schedule, but that she had always intended to stay in Thailand for the period she in fact stayed there. And even if that were to occur, and Prospa would wish to contradict Ms Doherty's denial by adducing evidence, Prospa would have to meet the requirements of s 106 of the Evidence Act 1995 (Cth).

1. I am therefore not satisfied there is a legitimate forensic purpose to Prospa seeking the production of the documents identified in paragraph 2 of its notice to produce and, for that reason, the paragraph should be set aside.

1. I propose to dismiss Prospa's application to set aside Ms Doherty's notice to produce on terms that the parties have liberty to apply in relation to any issue that may arise in connection with the production of the documents called for by Ms Doherty's notice to produce. I also propose to set aside paragraph 2 of Prospa's notice to produce.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

[1] Doherty v Prospa Advance Pty Ltd [2024] FedCFamC2G 391

[2] Referring to Doherty v Prospa Advance Pty Ltd [2024] FedCFamC2G 391, at [47]

[3] Doherty v Prospa Advance Pty Ltd [2024] FedCFamC2G 391, at [46]

[4] Doherty v Prospa Advance Pty Ltd [2024] FedCFamC2G 391, at [47]

[5] Affidavit E R Doherty 13.11.2024, [38]

[6] Thomas v SMP (International) Pty Ltd (No.2) [2010] NSWSC 870, at [19]