Mishra v NBN Co Ltd [2025] VSC 773

1. The legal principles applicable to the Application are summarised below and, as I understood it, save for one matter discussed later in this ruling, were not in dispute between the parties.
2. In Agnello v Heritage Care Pty Ltd,[1] Keogh J conducted a thorough review of the relevant case law and outlined the principles applicable to an application for particular discovery, including that discovery is of documents that relate to 'a question or fact in issue on pleadings between parties' and that, to protect privacy and confidence, the compulsion to discover documents should be limited to what 'the course of justice requires'.[2]
3. The broad scope of the Court's powers in relation to discovery conferred by ss 7 and 55 of the CPA and O 29 of the Rules, as recognised by J Forrest J in Volunteer Fire Brigades Victoria v CFA (Discovery Ruling),[3] is limited by the overarching purpose of the CPA, the 'overriding consideration' of which is to ensure that parties receive a fair trial.[4] As His Honour made clear, a fair trial is not a perfect trial, but rather the best trial a court can provide within reason, in proportion to the issues in dispute and the court's resources. Orders for production of specific categories of discovery must be made in that context.

1. The Plaintiff's submissions in support of his Application are summarised in respect of each category below. As discussed above, there was one matter of legal principle about which I received submissions from the parties. At a high level, the Plaintiff submitted that, in determining whether a matter is a question or fact in issue on pleadings between parties, the Court may have regard for context to documents other than the pleadings themselves. In this case, the Plaintiff relies upon matters arising on NBN Co's witness statements filed and to be relied upon as evidence by NBN Co in the proceeding.
2. In respect of Category 1 the Plaintiff submits that documents about the Plaintiff's tax treatment may support findings that:

(a) NBN Co was aware of serious tax compliance problems in respect of its obligations regarding the Plaintiff's tax matters well before it took any steps to address them;

(b) Consistent with the witness statement of Paul Jonathan Crosse, Executive General Manager Tax, Risk and Compliance at NBN Co, that NBN Co had actual knowledge of its failure to comply with fundamental taxation requirements well before the Plaintiff's complaints; and/or

(c) NBN Co responded to the Plaintiff's complaints with 'negligence or indifference', relevant to establishing breach of duty and a 'retaliatory context'.

The Plaintiff further submits that NBN Co was responsible for the Plaintiff's tax liabilities, for which there remains a dispute about the ATO Penalty. That is a matter which remains in dispute on the pleadings about which the Plaintiff is entitled to have discovery.

1. As to Category 2, the Plaintiff refers to the witness statement of Mr Crosse in which he gives evidence about, amongst other things, his involvement in the resolution of tax issues relating to expatriate employees including the Plaintiff. The Plaintiff submits that the treatment of other expatriates (which may have been influenced, for example, by whether they made complaints about their tax arrangements) will be relevant to the allegations of the Plaintiff that he suffered detriment for complaining about those breaches.
2. On Category 3 the Plaintiff submits that, adopting his submissions in relation to Category 1, communications with third parties regarding the Plaintiff's tax matters are also relevant and should be discovered.
3. As to Category 4, the Plaintiff submits that:

(a) The documents sought are relevant to the redundancy process and the alleged restructure of the business unit in India, which NBN Co pleads gave rise to the need for that redundancy. The Plaintiff says those documents will go to whether there was a genuine redundancy, whether there was a business unit-wide consultation, and whether there was in fact a unit restructure.

(b) The Plaintiff relies upon the decision of Feutrill J in Reiche v Neometals Ltd [5] as a case which he says is on all fours with the circumstances of this case, where discovery was ordered of:

documents directly relevant to the decision and reasons for the decision to make the applicant's position redundant, terminate the applicant's employment and pay the applicant in lieu of working out the notice period under his contract of employment.

(c) Consistent with his submission regarding the Court's approach to determining what is a question or fact in issue on the pleadings, the Plaintiff took the Court to the witness statements of:

(i) Michael James Read, Manager, Business Order Management at NBN Co, in which he gives evidence of the decision of NBN Co to repatriate employees from India, the process of assessing employees for redundancy, becoming aware of the Plaintiff's tax issues, and the decision not to proceed with the termination of the Plaintiff's employment in August or September 2021 due to the Plaintiff's unresolved tax issues;

(ii) Michael Sloan Richardson, Executive General Manager, Customer & Network Services at NBN Co, who gives evidence of the Plaintiff's employment and the redundancy of his role;

(iii) Ryan John Murphy, Employee Relations Manager in the People & Culture Team at NBN Co during the relevant period, who gives evidence regarding the Plaintiff's date of termination being extended to allow for his tax issues to be resolved and the negotiations with the Plaintiff regarding the proposed deed to resolve his tax and termination arrangements;

(iv) Troy Cardoso-Vigors, Human Resources Business Partner in the People & Culture Team at NBN Co during the relevant period, who gives evidence as to the repatriation of expatriate employees from India to Australia, the circumstances of the redundancy of the Plaintiff's role and his communications with others within NBN Co regarding the negotiations with the Plaintiff about his tax and termination arrangements.

The Plaintiff submits that, having regard to the extent of the evidence to be given on information relating to the restructure and redundancies, in respect of both the Plaintiff and the Named Staff, read in context with that evidence questions arise on the pleadings between the parties including: when and on what basis the NBN decided to abolish the Plaintiff's role, what selection criteria and comparative assessments were applied, what redundancy terms were applied to others such as the Named Staff, and how the Plaintiff's tax issues influenced that decision.

1. In its responsive submissions, NBN Co accepted that there may be occasions where matters raised in a witness statement, when read with the pleadings, may contribute to the identification of a question or fact in issue on pleadings between parties. However, NBN Co submits, that does not apply to this case. The matters discussed in the witness statements on which the Plaintiff relies are provided to give context to NBN Co's defence, but do not relate to matters in dispute between the parties.
2. The specific submissions NBN Co makes in relation to Categories 1 to 3 are as follows:

(a) Save for the ATO Penalty, NBN Co has admitted liability for its obligations pleaded by the Plaintiff to pay the Plaintiff's tax. The Plaintiff's tax liabilities have therefore been resolved and no issue remains in dispute between the parties such that discovery in respect of it ought to be ordered.

(b) The Plaintiff seeks documents under Category 1 on the basis that they provide a 'factual matrix' in respect of the alleged misconduct about which the Plaintiff says he blew the whistle. Sections 1317AA(4) and (5) of the Corporations Act provide that a disclosure qualifies for protection under the Whistleblower Protections where the discloser (the Plaintiff) has 'reasonable grounds to suspect that the information concerns' misconduct, or an improper state of affairs, or conducted engaged in by NBN Co that constitutes an offence or a danger to the public or the financial system. Whether or not the Plaintiff had reasonable grounds to suspect that the information concerns such misconduct is not a matter on which the Plaintiff or the Court is going to be assisted by looking at documents to which he did not have access at the time of the disclosures. Category 3, which seeks documents on similar terms to Category 1 but in relation to communications with third parties, NBN Co submits should not be ordered to be produced for the same reasons.

(a) The pleaded case is confined to the tax affairs of the Plaintiff only. The references to 'systemic failures' regarding the tax affairs of expatriates relied upon by the Plaintiff in submissions are not relevant on the Plaintiff's pleaded case.

(b) The Plaintiff was notified of the forthcoming redundancy of his position in India in March 2021. That notification occurred well before the communications from the Plaintiff to NBN Co, for which the Plaintiff seeks to invoke the Whistleblower Protections, occurred.

(c) NBN Co has, in any event, already been ordered (by consent) to give discovery and has given discovery of documents relating to the decision to terminate the Plaintiff's employment and/or offer him a redundancy during the 2021 calendar year.

(d) The Plaintiff does not complain in the proceeding about the fact of termination of his employment. So much was communicated to him in March 2021. His pleaded complaint is that at a meeting in September 2021 he was told, to his detriment, that he would be terminated without a deed being signed, in circumstances where there was an alleged agreement that such termination would be mutual and conditional upon them entering into a deed, and the parties were in negotiations in respect of the termination and tax arrangements.

(e) In respect of the allegation that NBN Co failed to take certain steps that it was required to do to ensure the Plaintiff's tax was paid, as discussed above the pleaded obligations are largely admitted by NBN Co, and the question of whether the tax was paid and when it was paid are objective matters easily established on evidence.

1. It is convenient to turn first to Category 4, which is the category to which much of the parties' argument at the hearing was directed.
2. Category 4 relates to the restructure of the Indian business unit, including documents relating to the redundancy assessments for the Named Staff. As set out above, the Plaintiff relies on the reference to the restructure and redundancy process in witness statements filed by NBN Co as evidence in the proceeding to demonstrate that these are matters that arise on the pleadings, for which discovery may be sought.
3. In a witness statement (or, indeed, witness outline) a witness may raise issues on which a party may then seek specific discovery to assist it to prepare for cross-examination of that witness on matters which are relevant on the pleadings. I accept (as did NBN Co at the hearing) that in those circumstances there is a basis to order discovery of such categories.
4. However, such discovery should only be ordered where the relevant evidence given by the witness relates to a question or fact in issue on pleadings between parties. In this case, the Plaintiff says the documents in Category 4 will go to whether there was a genuine redundancy, whether there was a business unit-wide consultation, and whether there was in fact a unit restructure.
5. I accept that the documents sought in Category 4 will be relevant to those questions and that NBN Co's witnesses give evidence about those questions. However, I do not consider that these are matters that are relevant to the issues in dispute in the proceeding.
6. It is not in dispute between the parties that the Plaintiff was notified of his forthcoming redundancy in March 2021. The Plaintiff does not make any claim in respect of the fact of the actual redundancy, or the circumstances giving rise to it. The Plaintiff's employment was not terminated until 3 November 2022, and he remained employed with NBN Co for nine months after the proceeding was commenced.
7. The substance of the Plaintiff's claim, at paragraphs 9A and 11D of his Further Amended Statement of Claim dated 21 September 2022 ('FASOC'), is that he made disclosures to officers of NBN Co between April 2021 and September 2021 (after the termination of his employment had been communicated to him) regarding NBN Co's failure to pay his tax liability in India and Australia, and that, knowing or suspecting that the Plaintiff had made those disclosures, NBN Co engaged in conduct causing him detriment. That conduct is particularised at paragraph 11D of the FASOC as follows:

The First Defendant has engaged in the following conduct which has caused detriment to the Plaintiff as pleaded at paragraph 10 (h) and has done so knowing or suspecting that the Plaintiff has made a disclosure as pleaded at paragraph 9A herein, and their knowledge of belief is a reason or part of the reason for their conduct pleaded at paragraph 10 (h) herein pursuant to s 1317AC (1) of the Corporations Act.

1. The First Defendant knew of the disclosures pleaded at paragraph 10 (h) herein because the disclosures were made to its officers and senior managers. 2. On 3 September 2021, Troy Cardoso-Vigors of the First Defendant said words to the effect in relation to the disclosures pleaded at paragraph 9A herein.

"The tax issues are very complex"

"We have tried to resolve it. We do not know when or how it will be resolved. We have no time line."

"It has nothing to do with HR or employment relationships."

"Since you aren't willing to sign the settlement deed in its current form, your employment will be terminated in a week."

"For these reasons we have decided to terminate your employment with a week's notice on Friday."

1. The Plaintiff will rely upon the circumstances to draw an inference of the First Defendant's intent, that include the time of the disclosures and the decision to unilaterally terminate on 3 September 2021, and to cease paying the home allowance and car allowance.
2. Further and better particulars will be provided after discovery.

1. I accept NBN Co's submissions that the questions that the Plaintiff says are in issue - when and on what basis that NBN Co decided to abolish the Plaintiff's role, what selection criteria and comparative assessments were applied, whether there was a genuine redundancy, whether there was a business unit-wide consultation, and whether there was in fact a unit restructure - are not questions or facts in issue on the pleadings. Even if the Plaintiff obtained discovery which enabled it to demonstrate at trial that the decision by NBN Co in March 2021 to terminate the Plaintiff's employment was for a reason entirely different from the restructure of the business unit, or that there was no such business unit restructure or consultation about such a restructure, such that the evidence of NBN Co about these matters was rejected, such a factual finding would not in my view have any bearing on the determination of whether, because of the pleaded disclosures, the Plaintiff is entitled to relief pursuant to the Whistleblower Protections for detriment he has experienced due to the conduct of NBN Co pleaded at paragraph 11D, including what occurred at the 3 September 2021 meeting.
2. For the same reasons, I do not accept that the tax treatment of the other Named Staff could be relevant to the Plaintiff's pleaded case. As explained above, the impugned conduct of NBN Co giving rise to the claim is the conduct pleaded at paragraph 11D, reproduced at paragraph [31] above. That conduct comprises what the Plaintiff describes as threats made regarding the Plaintiff's employment, including that his employment would be terminated within a week of the meeting. No complaint is made in respect of the Plaintiff's actual employment termination, which did not occur until 14 months later, nine months after the proceeding commenced and two months after the filing of the FASOC. Where no complaint is made about the actual circumstances of the Plaintiff's redundancy and termination, I have not identified any basis to require discovery of documents relating to the redundancy and termination of the Named Staff, or other expatriate staff.
3. For those reasons, the Plaintiff's application for discovery of documents comprising Category 4 is refused.

1. By Categories 1 to 3 the Plaintiff seeks documents relating to the Plaintiff's tax treatment including documents relating to similar issues raised by other NBN expatriate staff, and correspondence regarding those issues with third parties.
2. Both parties confirmed in the hearing that the issues relating to the Plaintiff's tax treatment have been resolved, save for the ATO Penalty. So much is confirmed in the Plaintiff's particulars of loss and damage filed on 2 August 2023, in which the Plaintiff claims approximately $6.6 million, of which only $76,000 is claimed in relation to any tax liabilities.
3. Accordingly, save for the $76,000 ATO Penalty (which I discuss separately below), there is no issue in dispute between the parties regarding the Plaintiff's tax treatment. NBN Co's obligation in respect of the Plaintiff's tax liabilities are largely admitted by NBN Co and the relevant amounts have been paid. On that basis I do not consider that documents relating to the motive or reasons as to the non-payment of the Plaintiff's tax liabilities are relevant to any issue that remains in dispute.
4. The Plaintiff put an alternative submission that the documents in these categories provide a 'factual matrix' and show the 'severity of the misconduct about which the Plaintiff says he blew the whistle, bearing on whether his disclosures were protected and reasonable'. I accept NBN Co's submission that, on the terms of s 1317AA of the Corporations Act, what the Plaintiff must prove for his disclosure to qualify for protection under the Whistleblower Protections is whether he had 'reasonable grounds to suspect that the information concerns' misconduct on the part of NBN Co. What was actually occurring in respect of his tax liabilities can only be relevant to the extent the Plaintiff had reasonable grounds to suspect it was occurring. I do not consider that discovery about what were the actual motives or reasons for NBN Co's decision-making or conduct regarding the Plaintiff's tax treatment can be of any probative value to the Plaintiff in respect of any question or fact between the parties on pleadings.
5. The Plaintiff submitted at the hearing that the late payment of the Plaintiff's tax liabilities by NBN Co may be a matter relevant to the question of costs in the proceeding, in circumstances where there is an open question in the proceeding as to whether the matter falls under the Fair Work Act 2009 (Cth) ('Fair Work Act') such that the principles relevant to costs in that jurisdiction ought to apply. I accept that the timing and circumstances of the resolution of the Plaintiff's tax issues by NBN Co, following the commencement of the proceeding, may well be matters relevant to an argument on costs. However, I do not accept that evidence of how NBN handled the Plaintiff's tax matters internally or, as the Plaintiff submitted, how it 'evaluated or attempted to resolve these failures' are currently questions on the pleadings between the parties that found an order for discovery.

1. At the hearing, both parties proposed that it was open to the Court to reformulate the wording of the categories sought by the Plaintiff, if I form the view following argument that there is a refined or alternative category of documents appropriate to be ordered. In particular, in his submissions the Plaintiff proposed an alternative wording of Category 4 in the event I did not accept its submissions as to the broader wording, as follows:

Documents recording the decision to restructure the Indian business unit, and any selection criteria, comparative assessments or decision-making processes applied to the plaintiff and the named expatriate comparators in relation to redundancy or redeployment between 1 January 2020 and 1 December 2021.

2. While I accept that the Court has broad powers to make orders for discovery under s 55 of the CPA, which may extend to reformulating categories in an appropriate context,[6] having regard to the views I have formed in respect of this proceeding I do not consider it appropriate to reformulate the categories. To do so would require considerable redrafting and, to ensure procedural fairness, further argument would be required. Nonetheless, I do consider it appropriate that I make the following observations in respect of one confined category of documents.
3. As to the Plaintiff's tax treatment, there remains in issue a claim for $76,000, in relation to the ATO Penalty. It was put to me as uncontroversial between the parties that this claim remains in issue on the pleadings, and to that end it follows that it should be uncontroversial that any exchange of critical documents between the parties ought to include documents relating to that ATO Penalty including any correspondence with the ATO or third parties concerning that ATO Penalty.
4. It was not apparent on the material before me whether such documents have been exchanged between the parties. It may be that exchange of those documents has already occurred, and for that reason I have not made any order in respect of it. But having regard to the ruling I have given in respect of Category 1 in particular, I consider it appropriate for the assistance of the parties to articulate my views as to the relevance of that much more limited category of documents to the matters in dispute.

1. For the above reasons, the Plaintiff's Application is dismissed. The parties agreed that, in the context of the unresolved question of the application of the provisions of the Fair Work Act governing costs, the appropriate order was to reserve the costs of the application, and I have made that order.

[1] (2023) 72 VR 143 ('Agnello').

[3] [2016] VSC 573.

[4] Ibid [34]; see also Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303, 323 [57] (French CJ, Kiefel, Bell, Gageler and Keane JJ).

[5] [2024] FCA 1202.

[6] Green v Graincorp Oilseeds [2024] VSC 273, [70].