Hastwell v Kott Gunning

Leave to appeal 2 On 8 October 2019, I gave judgment in relation to two applications concerning discovery in these proceedings. One was an application made by the applicant, Mr Hastwell, for itemisation of documents that were discovered in Part 2 and Part 3 of two lists of documents that had been filed and verified by affidavit on behalf of the respondent, Kott Gunning, and for discovery of 73 specified categories of documents. The other was an application by Kott Gunning for the discovery of six specified categories of documents, one of which was abandoned at the hearing. It is not necessary to go into the background of those applications any further, as that background is dealt with comprehensively in the primary reasons, which I delivered on 8 October 2019: Hastwell v Kott Gunning (No 3) [2019] FCA 1641. 3 Today, I made orders reflecting those reasons. Mr Hastwell has applied pursuant to r 35.01 of the Federal Court Rules 2011 (Cth) for leave to appeal from those orders. The application has been made orally, as is contemplated by that rule, and was not supported by any draft notice of appeal. However, Mr Hastwell outlined seven grounds of appeal to me orally. Kott Gunning did not object to that course, and had no difficulty with proceeding with the application at the hearing on 30 October 2019. Senior counsel for the respondent made full submissions on the application for leave to appeal. 4 The principles to be applied when deciding an application for leave to appeal are well established and were not in controversy. They are conveniently summarised by Rangiah J in Mentink v Minister for Justice [2016] FCA 432. At [26] his Honour observed that whether leave should be granted ordinarily turns upon two considerations, namely, whether in all the circumstances the judgment is attended by sufficient doubt to warrant its being reconsidered by the Full Court, and whether substantial injustice would result if leave were refused supposing the decision to be wrong. His Honour relied on the well-known authority of Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, as well as Minogue v Williams [2000] FCA 125; (2000) 60 ALD 366 in that regard. 5 Rangiah J went on to add as a third consideration (at [27]) that leave is less readily granted where the interlocutory judgment concerns a matter of practice or procedure, rather than substantive rights, again citing Décor and Minogue. Rangiah J described the case before him as just such a matter; like the present application, it concerned leave to appeal in relation to discovery of particular documents and categories of documents, which his Honour described as just such a matter of practice or procedure. At [80]-[81], his Honour, in the course of dismissing the application before him, indicated that the applicant's substantive rights were not affected by the failure of his application for discovery and was not satisfied that substantial injustice was likely to result if leave were refused, supposing the decision to be wrong. 6 While I derive broad guidance from those conclusions in Mentink, it hardly needs to be emphasised that on an application such as this one, where the question is ultimately a discretionary one, the case turns upon its own facts. So it does not necessarily follow from his Honour's conclusion in that case that the application for leave to appeal in the present proceedings should be dismissed. 7 Mr Hastwell ran through seven proposed grounds of appeal with me. The first was that he claims that there is an error of law in the primary judgment, stemming from an incorrect construction of r 20.20(2) of the Federal Court Rules. This error is said to be evident at [28] of the primary reasons. The construction of that rule, which I adopted in the primary reasons, was to the effect that it would not require discovery of documents over which privilege has been claimed, if they were generated after 10 May 2017, being the date on which this proceeding was commenced. 8 The error of construction said to have been made is that, in Mr Hastwell's submission, the fact that r 20.20 is headed 'Supplementary discovery' means that it only applies to further discovery that is being ordered, rather than what Mr Hastwell insists is the standard discovery that was ordered here. It follows from that, he says, that Kott Gunning should, at least, be required to itemise the documents in Part 2 of their two lists of discovered documents up to the time that they gave standard discovery in this proceeding. Mr Hastwell characterised this both as an error of law and an erroneous finding of fact. 9 I have taken those submissions into account, but they do not lead me to doubt the correctness of the primary decision which is the subject of this application for leave to appeal. That is for the simple reason that r 20.20(2) provides: However, a party is not obliged to discover any document that has been created after the proceeding was started, if the party is entitled to claim privilege from production for the document. 10 I see no ambiguity in that sub-rule and, in particular, no ambiguity in the timeframe for which it provides, namely, that the document has been created after the proceeding was started. The reference to the proceeding being started can only be, in my view, a reference to the commencement of these proceedings by the original filing of the originating application and accompanying documents. Whether or not the heading may be taken into account in the construction of the rules, it cannot override what I consider to be the clear meaning of the text of r 20.20(2). I am, therefore, not persuaded that proposed ground 1 identifies an appealable error which has sufficient prospects of success to warrant it going to a Full Court. 11 Ground 2 of the proposed appeal would allege an error of law and fact in the application of the test in r 20.17(2)(b) of the Federal Court Rules. The issue which this raises concerns the itemisation of the documents referred to in Part 3 of Kott Gunning's two lists of discovery. To recap, Part 3 of those lists identified as documents that have been, but are no longer, in the control of the respondent, 'Emails not saved to files or retained by current staff members of the Respondent'. Under the heading 'What became of the document', the lists of documents say 'Not retained by IT system, deleted on various dates'. 12 In the primary judgment, I indicated that, in my view, itemisation of those documents would be futile. I said that followed from the fact that the documents or electronic records in question had all been deleted and not retained. Therefore I dispensed with the requirement to comply with r 20.17(2)(b) in relation to the documents listed in Part 3 of each of the two lists. 13 Mr Hastwell says that was an error because r 20.17(2)(b) clearly states that the discovery list must itemise those documents. I agree with him that the rule does clearly state that requirement. That was the basis of the primary judgment, both the decision to require Kott Gunning to itemise the documents over which it claimed privilege, and the decision not to require it to itemise the documents in Part 3. The difference, as is explained in my primary reasons, is that if Kott Gunning no longer has the documents, and they have not been kept, it will not be able to itemise them. So while the rule does clearly require itemisation, there is a discretion in the court to dispense with any requirements in the rules, and that was the discretion that I exercised in the primary reasons, so as not to require Kott Gunning to itemise the documents in Part 3. 14 Mr Hastwell claimed that it was an error of fact to find that it would be futile to require Kott Gunning to itemise the documents, but he provided no specific basis as to why that was an error, other than to assert that it was not based in the evidence. The evidence on which it was based was, as I observed in the primary reasons, the evidence in the lists of documents themselves, which were verified on affidavit by a legal practitioner. There was no countervailing evidence, or any other reason, put forward at the original hearing that would lead me to find that the evidence in question did not establish the requisite futility. 15 Mr Hastwell also claims that I failed to give reasons for that aspect of my decision. However, the primary reasons set out why I came to the view I did. That includes not only [32] itself, which, while brief, does articulate the essential reason, but also paragraphs [26] to [31], in which I canvassed the submissions made by the parties and the principles on which the court could dispense with requirements with rules. 16 In my view, that aspect of the primary reasons is not attended by sufficient doubt to warrant an appeal on the point going to the Full Court. 17 By proposed ground 3, Mr Hastwell claimed that in the primary reasons, the wrong legal test was pursued in relation to each of the 73 categories of additional documents of which he sought discovery. This was a return to the submissions that Mr Hastwell made in the original application, to the effect that discovery of those categories should have been ordered under r 20.14 of the Federal Court Rules, which is the rule concerning what is known as standard discovery. Mr Hastwell essentially repeated the submissions he had made in the original application, which were to the effect that r 20.14 'needs to be respected as a test'. However, he did not raise any matter that had not already been raised in the original application which gives me cause to reconsider the reasons I gave for dealing with the application, not under r 20.14, but under r 20.21. That is an approach which many judges of this court have taken on previous occasions. 18 Mr Hastwell did appear to accept in his oral submissions that he should have put on affidavit evidence which gave specific reasons, including specific evidence, as to why Kott Gunning's discovery in relation to each of the 73 categories was deficient. He added that he also could have, and should have, pointed to passages from the pleadings and the existing affidavit evidence which would establish the deficiency. He says he just assumed that those matters, that is, the pleadings and the material already in evidence, would establish the deficiencies, but he now sees that he should have spelled out which passages from witness statements, for example, show the deficiencies. He says that if given the opportunity, he would spell those matters out to a Full Court, including by way of an affidavit which he says would not introduce new evidence, but would point out how the deficiencies are established on the existing materials. 19 The difficulty with all of that is that Mr Hastwell is correct that he should have done that in the course of the original application. He had an opportunity to do so. He was directed to file any affidavits. But the affidavits and written submissions did not descend below a very high level of generality. Mr Hastwell was also given the opportunity to be specific in his oral submissions in the original hearing, and was repeatedly reminded that he did need to point to material establishing a possible deficiency in the discovery including, if applicable, material to be found in the existing pleadings and affidavits. But with few exceptions which I canvassed in the primary reasons, he did not do so. It cannot establish an appealable error to carry out that exercise after the original application has being disposed of, when it was not carried out before the primary judge. 20 Mr Hastwell also seeks to pursue by way of ground 3 an argument that the test that would be applied under r 20.14 is different to the test which was, in fact, applied in the primary reasons pursuant to r 20.21. I am not persuaded that that is necessarily so. While r 20.14 does, indeed, relate to what is often called standard discovery, it is a rule which exists in the clear framework laid down by that part of the Federal Court Rules to the effect that no party is entitled to discovery as of right, and it is necessary in all cases to justify why discovery should be provided. 21 In light of that, and in circumstances where what is being alleged is not a general non-compliance with the requirement to provide standard discovery, but specific categories of documents which are said not to have been produced, in my view, the approach of Barker J in Dennis v Chambers Investment Planners Pty Ltd [2012] FCA 63; (2012) 201 FCR 321, is, with respect, one of eminent good sense and would underlie the approach of the court to complain of specific deficiencies in discovery, whether properly pursued under r 20.14 or under r 20.21. 22 In particular, his Honour emphasises in the passage at [39] of that decision that it is incumbent on the party seeking particular discovery to satisfy the court that the document should be discovered in the circumstances of the case, and that the document or category of documents must be relevant, directly or indirectly. In fact, on one view, that is a broader test than the test which applies under r 20.14 which hinges on the requirement of direct relevance as defined in that rule. 23 Therefore I do not, after considering Mr Hastwell's submissions today, feel sufficient doubt about the correctness of that aspect of the primary reasons to warrant giving leave to appeal, so that it goes before a Full Court. 24 I will have some things to say about substantial injustice, the other key requirement of leave to appeal, at the end of these reasons, but at this point, I observe that if the test that was applied was, indeed, the wrong one, it would not follow that there is any substantial injustice. That is because the test that was applied, that is, the test set out in Dennis v Chambers Investment Planners, is fashioned so as to ensure a just resolution of the issues in dispute. That is a specific reason why, in relation to ground 3 and the allegation of a wrong test, the requirement of substantial injustice is not satisfied here. 25 Ground 4 of the grounds of appeal was put in the alternative to ground 3 in that Mr Hastwell alleged that if the primary reasons were correct in finding that r 20.21 governed his application, there was error in failing to order discovery of the 73 categories of documents which he sought. With one partial exception, Mr Hastwell did not identify any specific claimed error in relation to any specific category, and so it is, with respect, difficult to place much weight on this ground as warranting the referral of any appeal to the Full Court. 26 The exception is that Mr Hastwell raised, as an example, the issue as to whether he achieved his billing target in the 2013 to 2014 year. He said that was clearly an important issue, and documents should be discovered in relation to it. However, he did not point to any specific aspect of any evidence which would show an error in the primary reasons on that point. He did not point to anything in the materials to establish the alleged deficiency, other than assertions he made from the bar table, and he did not engage with the point made on behalf of Kott Gunning that there were several other documents already in Kott Gunning's discovery list which were relevant to the issue of his billing performance and pay review. 27 Therefore I do not find sufficient doubt in relation to the aspect of the primary reasons raised by proposed ground 4 in order to warrant referring that to a Full Court for disposition on appeal. 28 The first four grounds which I have been through concerned errors alleged to have been made in relation to the disposition of Mr Hastwell's application for discovery against Kott Gunning. There were three more grounds, which concerned Kott Gunning's application for discovery. Mr Hastwell's resistance to that application was largely unsuccessful. 29 Ground 5 concerned paragraph 1 of Kott Gunning's list of the categories of documents, which concerned discovery of medical records. Mr Hastwell said that those records did not satisfy 'the test for necessity', because there is no issue that he suffers from anxiety. He said therefore that Kott Gunning was embarking on a fishing expedition in relation to that material. He also asserted that it was an error to permit discovery in relation to that category beyond the confined area of anxiety and depression. 30 There is an allegation in Mr Hastwell's statement of claim that he suffers from anxiety, which is the disability which he says founds his claim of disability discrimination. However, it is not clear when it is alleged that that anxiety first came on. More importantly, at paragraph 83 of his statement of claim Mr Hastwell claims, as an aspect of loss sounding in damages, '[o]ffence, humiliation, anxiety and depression'. So he seems to be claiming that even if he did suffer anxiety before he joined Kott Gunning, it was exacerbated. It therefore appears to me, as I expressed in the primary reasons, that the question of the duration and extent and severity of his anxiety and depression and symptoms is relevant, and potentially will be revealed by those medical records. It also appears to me, as it did at the time of publishing the primary reasons, that other issues about mental health are potentially relevant, and for that reason I do not accept that the discovery should have been limited to anxiety and depression. 31 That is not fishing on behalf of Kott Gunning. It is a matter which is in issue, and it is the seeking of discovery of what is, in the end, after all, a fairly confined set of documents relevant to that issue. Therefore ground 5 does not raise, in my mind, sufficient doubt about the correctness of the original decision to warrant granting leave to appeal. 32 Ground 6 concerns paragraphs 2 and 3 of the list of categories of documents in Kott Gunning's application, and [156] and [158] of the primary reasons. Mr Hastwell alleges that it was factually incorrect to find that the documents showing what he was earning before he came to Kott Gunning are relevant to his capacity to earn, which is partially the subject of his claim for damages. Mr Hastwell went through four alleged errors in that regard, but they all resolved to a claim that what he was earning before he joined Kott Gunning was not relevant to his earning capacity. This was, once again, a repetition of the submissions that were made in the original application, and nothing that Mr Hastwell said, with respect, caused me to feel doubt about the primary reasons I gave on this subject, which I will not repeat here. In brief, it is difficult to see how material showing what he was, in fact, earning, at a time reasonably proximate in time to the events which he claimed caused him to lose earning capacity, could not be relevant to the question of what that earning capacity actually was. 33 Mr Hastwell claimed that the wrong test was applied here, and asserted that it was not necessary to discover those matters, but as I have already indicated in these reasons and as I indicated at [47] of the primary reasons, the test that I applied as the touchstone for the orders was the test of relevance in accordance with the quote from Barker J's reasons in Dennis v Chambers Investment Planners. I do not find that there is sufficient doubt about this aspect of the primary reasons to warrant referring proposed ground 6 to a Full Court to be disposed of on appeal. 34 Ground 7 concerned the order of the court that Mr Hastwell discover materials in relation to the report of Dr Parmegiani, including the report itself. Mr Hastwell raised for the first time a claim that those materials, or at least perhaps part of them, including, crucially, Dr Parmegiani's report, had already been discovered by him in Part 2 of his list in which privilege was claimed. I was referred to a passage from Part 2 which does refer to correspondence between Harmers Workplace Lawyers and Dr Parmegiani, although it does not clearly itemise Dr Parmegiani's report. In any event, that was not a matter raised at the time of the original application and does not establish appealable error. In fact, it tends to support the relevance of the material that was the subject of the orders I did make. And there can be no substantial injustice in requiring Mr Hastwell specifically to discover that material, even if the effect of the requirement is that he discover it again. 35 Mr Hastwell also said that, for reasons which he had already put in his submissions on the original application, it was contempt of court for Kott Gunning to rely upon the materials that it obtained from the Supreme Court of New South Wales in support of its application of discovery of Dr Parmegiani's report, and asserted that I had incorrectly applied in the primary reasons the decisions in Harman v Secretary of State for the Home Department [1983] 1 AC 280 and Hearne v Street [2008] HCA 36; (2008) 235 CLR 125. 36 However Mr Hastwell's submissions did not identify the precise nature of that alleged error, or why there was any error in my finding that Kott Gunning did not breach any undertaking, or other obligation to the Supreme Court of New South Wales, in the use which it made of the materials. 37 Mr Hastwell said in the course of his oral submissions on this point, with commendable candour, that he was essentially repeating the submissions that he had made on the original application. That, with respect, reveals a significant flaw which ran throughout his application for leave to appeal, which is that rather than identify an appealable error which could give me cause to reconsider the correctness of the primary reasons, Mr Hastwell largely repeated the submissions that had been made in the course of the original application. 38 My findings and reasons and views on those submissions were set out in full in the primary reasons and, with respect, simply repeating the arguments that I did not accept then does not persuade me that there was any real possibility of an appealable error. If it were to be pointed out to me that I misunderstood, or misread, or overlooked something, that may be different. But Mr Hastwell has not pointed anything of that kind out to me on this application for leave to appeal. 39 As I have already mentioned, the other factor which is important in applications for leave to appeal is to consider whether, assuming that the primary decision was in fact wrong, the proposed appellant would suffer substantial injustice. I accept that if an error was established in my omitting or failing to order discovery of specific categories of documents, and it turned out that discovery of those documents was essential to Mr Hastwell being able to conduct his case, then it may be that the denial of discovery of those crucial documents could result in substantial injustice if it led, for example, to the dismissal of the claim. However, while that possibility may be admitted in a general sense, Mr Hastwell did not identify any specifics that would lead to that concern being realised in this case. 40 Rather, his submissions were to the effect that it would be a 'huge injustice' if discovery of the 73 categories of documents, or perhaps some of them, were not to be ordered, and that standard discovery was 'absolutely essential'. I do not consider that submissions of that generality establish that there would be a substantial injustice here. 41 However, even if I am wrong about that, the fact that the submissions made have not caused me to experience doubt about the correctness of any of the reasons which were the subject of attack in Mr Hastwell's proposed grounds of appeal leads me in any event to find that the requirements in relation to leave to appeal in relation to the proposed grounds have not been established here. 42 There is a further reason to find that there is no substantial injustice in relation to proposed grounds 5 through to 7 of the proposed appeal. The orders which are the subject of attack in those grounds require Mr Hastwell to provide discovery of relatively limited categories of documents to Kott Gunning. I see no basis to say that he could suffer any substantial injustice merely from having discovered some documents, even if the requirement to do so turns out to have been wrong. The respondent will be required to deal with the documents strictly pursuant to the requirements of the Harman undertaking, as further explicated in Hearne v Street, and there is simply no reason why that could result in substantial injustice to Mr Hastwell here. 43 I have said enough to dispose of the application for leave to appeal, but I will add that it is relevant that the subject of the application for leave to appeal is clearly a matter of practice and procedure, and that is a further matter which weighs in favour of exercising the discretion against granting leave to appeal here. 44 The application for leave to appeal will be dismissed, with costs.