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[2012] FCA 1100
Federal Court of Australia
2012-10-10
Barker J, Besanko J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This proceeding by Miriam Halpern was commenced against HBOS Australia Group (Services) Pty Ltd Trading as BWA Group Services Pty Ltd and Jeremy Townend on 15 June 2012. The first respondent has been amended by order to BWA Group Services Pty Ltd. A Statement of Claim was filed on 20 August 2012 and a Defence of the first and second respondents was filed on 17 September 2012. 2 On 18 September 2012, the proceeding came on before me for pre-trial directions. Various directions were agreed as between the parties, including an order that the applicant make discovery of three categories of documents to the respondent. The applicant also sought an order that the respondents make discovery and she identified five categories of documents. The respondents opposed the order sought by the applicant. The respondents made brief oral submissions in opposition to the order sought by the applicant. Each party then made written submissions with respect to the order sought by the applicant. 3 The applicant's application was made under Rule 20.14 of the Federal Court Rules 2011 (Cth), which deals with the making of standard discovery. The applicant does not bring her application under Rule 20.15 which deals with non-standard and more extensive discovery, nor under Rule 20.21 which deals with particular discovery. 4 Rule 20.14(1) and (2) are in the following terms: (1) If the Court orders a party to give standard discovery, the party must give discovery of documents: (a) that are directly relevant to the issues raised by the pleadings or in the affidavits; and (b) of which, after a reasonable search, the party is aware; and (c) that are, or have been, in the party's control. (2) For paragraph (1) (a), the documents must meet at least one of the following criteria: (a) the documents are those on which the party intends to rely; (b) the documents adversely affect the party's own case; (c) the documents support another party's case; (d) the documents adversely affect another party's case. 5 Both parties made their submissions on the basis that the categories of documents sought by the applicant must be directly relevant. No submissions were made as to what "directly relevant" means and, in particular, whether it is sufficient to establish that the documents sought fall within Rule 20.14(2), or whether it is necessary to do that and, in addition, to show that the documents are directly relevant in some other sense. This issue was considered by Barker J in Dennis v Chambers Investment Planners Pty Ltd [2012] FCA 63. At paragraphs 32 and 33, his Honour said: I noted above that R 58A.03 of the SA Rules considered in Channel Seven Adelaide is different from R 20.14, because R 20.14(2) was a feature not found in the then SA Rules. It may be considered that R 20.14(2) adds something by, in effect, defining the essential characteristics of the directly relevant test in (1)(a). This is because, whatever view one might take of the scope of the directly relevant test in (1) when read in isolation, (2) requires that a document must meet at least one of the criteria specified. I digress to observe that one could enter into what would, in the end, be a barren argument as to whether or not it is necessary for a party not only to demonstrate direct relevance under (1)(a), but additionally to show that one of the criteria under (2) has been satisfied. One would tend to think that, if one of the criteria in (2) is made out, then there will be a presumption that the document is directly relevant to an issue for the purposes of (1)(a), and that there is no two-stage assessment process. 6 Whether it is sufficient to satisfy one of the criteria in Rule 20.14(2) or whether there is a two-stage assessment process is not a question which is decisive on this application. 7 The respondents also referred to Rule 20.11 and submitted that an order would not be made unless it will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible. I take that matter into account, although I do not think that it is decisive on this application. 8 Neither party put forward any evidence on the application. Both invited me to determine the matter by reference to the issues on the pleadings. The respondents did raise oppression as a relevant consideration, but they asked me to determine that matter by inference rather than by direct evidence. I turn now to consider the five categories of documents sought by the applicant.
All the documents relating to the internal investigation of the complaint made on 3 February 2012 by the applicant of discrimination and bullying by the second respondent 9 The applicant bases her claim on unlawful discrimination under the Sex Discrimination Act 1984 (Cth) and the Racial Discrimination Act 1975 (Cth). The applicant was employed by the first respondent and, she alleges, the discrimination occurred in the course of her employment. She alleges that the second respondent was the person primarily responsible for the discrimination. 10 The internal investigation is not alleged to be part of the conduct which constitutes the discrimination. In fact, it is not referred to in the applicant's Statement of Claim. In my opinion, the application in so far as it relates to this category of documents is a fishing expedition and should not be granted. It seems to me that the applicant is fishing for the names of witnesses, admissions or prior inconsistent statements.
CCTV film of the second respondent making a Nazi salute to the applicant as alleged in paragraph 25 of the Statement of Claim 11 This category of documents is plainly directly relevant and I will make an order in relation to it. I did not understand the respondents to contend otherwise.
All the documents relating to the applicant's performance review referred to in paragraph 34 of the Statement of Claim 12 Paragraph 34 of the Statement of Claim is in the following terms: On the 9th of January 2012 at a meeting between the Applicant and the Second Respondent, the Second Respondent provided the Applicant with her bi-annual performance review which indicated that the Second Respondent had rated the Applicant's overall performance over the last 6 months as a "does not meet" performance objectives. The basis for the performance assessment by the Second Respondent was: 34.1 That the sales performance for the Applicant's portfolio had been slow and as a result, the overall financial result is "does not meet". 34.2 Whilst acknowledging that the Applicant "has attempted to get out into the market and build a profile" the Second Respondent noted that "this is yet to bear fruit as to date the pipeline is very limited with $1.5 million in approvals and $612,000.00 in acceptances". 34.3 As a result of the slow performance of the portfolio, the Applicant did not meet expectations relating to "customer satisfaction" and "driving results". 34.4 The Second Respondent stated that during the first 6 months the Applicant "has had complaints from her team on how she talks to them as well as her involvement in transactions, one member has moved on since then". 13 The structure of the Statement of Claim is not entirely clear. 14 Paragraph 8 is in the following terms: Following the conversation which took place on the 31st July 2011 regarding the Applicant's race and during the period from 1st August 2011 to the 25th January 2012, the Second Respondent engaged in conduct and behaviour towards the Applicant which constituted discriminatory conduct on the grounds of the Applicant's race and sex, and which constituted a series of conduct by the Second Respondent towards the Applicant motivated by both the Applicant's race and sex designed to humiliate the Applicant in front of her colleagues and peers and undermine her role as Business Development Manager for which she had been employed by the First Respondent. 15 There then follows a heading "Particulars" under which all of the remaining paragraphs (paragraphs 9 to 50) appear. 16 Paragraph 33 is in the following terms: On the 22nd of December 2011 the Second Respondent presented the Applicant with a letter that he had signed confirming the successful completion of the Applicant's 6 month probationary period with the First Respondent. The letter stated that the Applicant "had the right skills, behaviours and attitudes to enjoy a successful career with Bankwest". Further, it stated that "we are delighted and proud to have you as part of our great team". 17 After paragraph 34 there is a reference to events on 17 January 2012 and then the following paragraphs: 38. The conduct of the Second Respondent was such as to treat the Applicant in her role of Business Development Manager less favourably than and distinguished from her male peers in equivalent roles such that the terms of her employment and conditions of work were diminished due to the Applicant's sex and race and constituted unlawful discrimination by the Second Respondent on the grounds of sex pursuant to section 5 of the Sex Discrimination Act and unlawful discriminatory conduct on the grounds of race pursuant to section 9 of the Racial Discrimination Act. 39. The conduct of the Second Respondent also denied the Applicant the opportunity to perform her role as Business Development Manager in accordance with the terms of her contract of employment and thereby denied the Applicant opportunities for promotion and the STI incentive which formed part of her contract of employment and constituted unlawful discrimination on the grounds of sex pursuant to section 14(2)(b) of the Sex Discrimination Act and unlawful discriminatory conduct on the grounds of race pursuant to section 15(1)(b) of the Racial Discrimination Act. 18 It seems that the applicant alleges that the performance review resulted from unlawful discrimination by the second respondent. It seems that she relies on a course of conduct beginning in August 2011 and an inference which may be drawn from paragraph 33. It seems that the applicant's allegation is that the performance review is not the result alone of matters relevant to the applicant's performance. That is not expressly stated in the pleading. Nor is it expressly stated in the pleading that the alleged unlawful discrimination affected the details of the applicant's performance reviews. These matters are left to inference and that is not satisfactory. Nevertheless, I think the applicant's pleadings are sufficiently clear to lead to the conclusion that documents relating to the applicant's performance review are directly relevant. However, I think that the order should be limited to the particular matters identified in paragraph 34 and, in particular, paragraphs 34.1, 34.2, 34.3 and 34.4. I will make an order that there be discovery of all documents relating to those matters in the performance review identified in paragraph 34 of the Statement of Claim.
All the documents relating to the division and distribution of the portfolio of Darren Wilson referred to in paragraph 36 of the Statement of Claim 19 Paragraphs 36 and 37 of the Statement of Claim are in the following terms: On the 17th of January 2012 at a portfolio review meeting with the Applicant, the Second Respondent and Relationship Manager Julie Hislop, a discussion took place about the status of the Applicant's portfolio. The conversation involved discussion about the fact that Darren Wilson, a Senior Business Development Manager within the Second Respondent's division had recently resigned and as a result, his portfolio was divided up, with the work being distributed by the Second Respondent to the Applicant's portfolio and to that of the other Business Development Manager in the division, Wal Lennerth. During the meeting, the Applicant raised the fact that the Second Respondent had given Mr Lennerth all of the profitable clients from Mr Wilson's portfolio. When the Applicant questioned the Second Respondent specifically about some of her portfolio's old clients, referring to the fact that she did not even get those clients back from Darren Wilson when he left, the Second Respondent responded by stating "you are being immature. If you want those clients, you will need to go to Wal yourself and ask for them". Also during the course of that meeting, the Second Respondent repeatedly used the word "motherhood" when the Applicant presented her plans to grow the portfolio. 20 Again, the pleadings are not entirely satisfactory. It seems that the applicant is suggesting that the second respondent divided up Mr Wilson's portfolio and that his division was the result of unlawful discrimination. Again, not without some hesitation, I have reached the conclusion that the applicant's pleadings are sufficiently clear for me to conclude that this category of documents are directly relevant. However, I will limit the order to the second respondent's involvement in the distribution and division of the portfolio of Darren Wilson referred to in paragraph 36 of the Statement of Claim.
All the documents relating to the involvement of the second respondent in the performance reviews of Julie Hislop and Julia Reginato referred to in paragraphs 40 and 41 of the Statement of Claim 21 Paragraphs 40 and 41 of the Statement of Claim are in the following terms: On the 25th of January 2012 the Applicant had a further discussion with the Second Respondent following her performance reviews for each of the two members of her team, Julie Hislop, Relationship Manager and Julia Reginato, Assistant Relationship Manager. By that stage, Julia Reginato had resigned from the team. During the discussion, the Applicant requested clarification from the Second Respondent as to why her bi-annual review of Ms Reginato's performance had been rejected by the Second Respondent. The Second Respondent informed the Applicant that before giving notice of her departure from the team, Ms Reginato did not have sufficient time to improve her overall behaviours "since I last sat down with her". As Julia Reginato's direct line manager, the Applicant was not present or aware of these meetings that had apparently taken place between the Second Respondent and Ms Reginato regarding her performance. The Applicant subsequently received an email from the Second Respondent's Manager, Mark Greenwood, Head of Commercial, East Coast Business and Private Banking, instructing the Applicant to change her reviews of both Julia Reginato and Julie Hislop from an overall performance assessment of "does not meet" in relation to "how they deliver" the service to a "meets" performance objectives. As a result of this directive, the Applicant was required to change her performance assessments for the two members of her team to assessments which the Applicant considered did not accurately reflect their conduct over the review period. 22 Again, there is a problem with the pleadings. The last sentence in paragraph 40 is an example. It is not clear what is being suggested in this sentence. Is it being suggested that the second respondent should not have met with Ms Reginato or should not have met with her without the applicant being present? Is it being suggested that the second respondent should have made the applicant aware of the meetings? 23 There is a more fundamental problem with the applicant's pleadings when paragraphs 42 and 43 are also considered. Those paragraphs are in the following terms: The conduct of Mr Greenwood constituted unlawful discrimination on the grounds of the Applicant's sex in that it treated the Applicant less favourably than in the same circumstances the Second Respondent would have treated a person of the opposite sex pursuant to the provisions of section 5(1) of the Sex Discrimination Act and Mr Greenwood's behaviour denied the Applicant the opportunity to perform her role of Business Development Manager in accordance with the terms of her contract of employment on the grounds of her sex pursuant to section 14(2)(b) of the Sex Discrimination Act. The conduct of Mr Greenwood constituted unlawful discrimination on the grounds of the Applicant's race on the basis that the conduct of the Second Respondent impaired the Applicant from carrying out her role of Business Development Manager in accordance with the terms of her contract of employment on the basis of her race contrary to the provisions of section 9(1) and section 15(1)(b) of the Racial Discrimination Act. At all material times the Second Respondent and Mr Greenwood were acting in their capacities as employees of the First Respondent. The First Respondent is vicariously liable for the unlawful sex discrimination of the Second Respondent and Mr Greenwood pursuant to section 106 of the Sex Discrimination Act and is liable for the unlawful racial discrimination of the Second Respondent and Mr Greenwood pursuant to section 18A of the Racial Discrimination Act. 24 Paragraph 42 is confusing in that it mixes the conduct of Mr Greenwood and the second respondent without indicating in a clear way what conduct of the second respondent is complained of. The ultimate conduct which is the subject of paragraphs 40, 41, 42 and 43 appears to be the directive issued by Mr Greenwood. The second respondent's conduct is not identified other than by implication in the narrative of the conversation referred to in paragraph 40 and even then the link (assuming there is said to be one) between the second respondent's "rejection" and Mr Greenwood's directive is not identified. The applicant's written submissions refer to the second respondent "influencing" Mr Greenwood but if that is the applicant's case then it should be clearly pleaded. 25 I am not prepared to make an order for discovery with respect to the fifth category of documents on the pleadings as they presently stand. As things presently stand, the application in relation to the fifth category of documents appears to be no more than a fishing expedition. 26 I will make the following order: The respondents provide discovery of the following categories of documents by 4.00 pm on 8 November 2012: a. CCTV film of the second respondent making a Nazi salute to the applicant as alleged in paragraph 25 of the Statement of Claim. b. All the documents relating to those matters in the performance review identified in paragraph 34 of the Statement of Claim. c. All the documents relating to the second respondent's involvement in the distribution and division of the portfolio of Darren Wilson referred to in paragraph 36 of the Statement of Claim. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.
Halpern
BWA Group Services Pty Ltd