What happened

This is an interlocutory decision by Deputy President Anderson of the Fair Work Commission, dated 9 August 2018. It arose within Mr Joshua Brewer's application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth). The substantive matter had not resolved at conciliation and was listed for hearing on 30 and 31 August 2018 ([1]). The decision did not determine whether Mr Brewer's dismissal was unfair. It dealt with two procedural matters: a request for documents from a non-party, Woolworths Limited, and arrangements for evidence from a minor witness.

Mr Brewer had been dismissed for misconduct. His former employer, St Columba College, alleged, among other things, misconduct concerning his conduct towards Person A at the Woolworths Playford store in the months before dismissal. Mr Brewer denied that allegation ([15]). Person A was a student at the College, a minor, and a casual check-out operator at the store. Both Mr Brewer and Person A had filed witness statements, and the Deputy President identified an apparent dispute about how frequently Mr Brewer visited the store and what interaction took place ([15]–[16]).

Mr Brewer sought five categories of Woolworths records for the ten-week period from 1 January to 9 March 2018: Person A's rosters and working hours; her duties; check-out area CCTV; Woolworths policies about complaints concerning customer conduct; and any record of a complaint by Person A ([4]–[5]). Woolworths did not oppose production in principle but argued that the application was too wide and oppressive. It advised that the CCTV no longer existed because its policy was to destroy footage after 30 days ([9]). Mr Brewer did not press that category once its non-existence was raised ([14]).

The Deputy President found categories 1 and 5 apparently relevant and ordered their production. She rejected category 2 as more remote, and category 4 as remote or tangential on the material then available. Category 3 was no longer being pursued ([14]–[20]). The order included any employee position description disclosed by the category 1 records, and Woolworths was allowed seven business days to comply ([19], [23]).

Separately, St Columba College sought directions about Person A giving evidence. Her statement said she was only prepared to give oral evidence if Mr Brewer was not present, that she felt uncomfortable around him, and that she did not want him to look at her ([26]). The Deputy President directed that Mr Brewer not be in the hearing room or visible to Person A while she gave evidence. His legal representative could remain in the room, and Mr Brewer could observe from an adjoining room by video link, provided his image was not shown in the hearing room ([29]–[31]). The Deputy President also intended to refer to Person A and her mother as Person A and Person B in any decision ([32]–[36]).

Why the court decided this way

The central production question was not whether the requested documents would prove either witness's account. The test applied was whether the documents had apparent relevance to issues already raised in the proceeding. The Deputy President adopted the principles summarised in Re Penelope Vickers: production is discretionary, must assist the Commission to inform itself, must relate to an intended case rather than explore whether a case might exist, and should be sufficiently particularised and non-oppressive ([12]). She also referred to Kennedy v Qantas Ground Services for the proposition that irrelevant or only marginally or tangentially relevant documents should not be ordered ([13]).

The existing evidence supplied the connection between the requested material and the issues. The witness statements already disclosed a dispute about the frequency of Mr Brewer's visits and the interaction between him and Person A ([15]). The roster records could assist with facts relevant to visit frequency ([17]). Any records of complaints by Person A could assist with the nature of interactions ([18]). The Deputy President considered findings about events at the store could be directly relevant to the substantive application ([16]). Thus, the request was linked to an already-defined factual dispute rather than being an attempt to discover whether there might be a claim or defence.

The categories not ordered illustrate the limits of that reasoning. Category 2, covering duties, was more remote because the evidence was largely directed to the check-out area. Woolworths also said its records did not show whether a check-out operator was tasked to work elsewhere. The Deputy President considered that any relevant issue could be explored by questioning and cross-examining Mr Brewer and Person A. She nevertheless allowed an employee position description to be included if it appeared in the category 1 records ([19]). Category 4 sought internal policies and procedures. The Deputy President considered those documents remote, and direct evidence from Person A about her knowledge of the matters, together with any category 5 records, made policy documents at most tangential on the available material ([20]).

The ten-week period was not reduced to dates identifiable through banking records. Mr Brewer's statement indicated that he sometimes paid in cash, so banking records would not establish all visits. The competing statements concerned conduct across the whole period ([21]). Woolworths also described the request as fishing and oppressive. The Deputy President acknowledged the time and effort imposed on a third party, but considered the period recent, the records generally accessible to a business, and the scope limited by rejecting categories 2, 3 and 4. She concluded that this burden was not oppressive and that obtaining documents about facts already alleged in witness statements was not a fishing exercise ([22]).

For Person A's evidence, the decision expressly balanced two objectives: avoiding undue distress to a minor and preserving natural justice and procedural fairness to Mr Brewer ([29]). The selected arrangement did not exclude Mr Brewer entirely from observing the evidence. It separated him physically from Person A and prevented her from seeing him, while permitting his representative to participate in the hearing room and allowing Mr Brewer to observe remotely ([29]–[30]). The decision records the availability of technology in Adelaide to implement that arrangement ([30]).

The treatment of identities was distinct from the evidence-taking direction. Person A and her mother were witnesses, not parties, and Person A was a minor. The Deputy President considered that identifying them served no public interest and that de-identification caused no prejudice to the parties. Identifying the mother could also identify Person A by surname ([33], [36]). Because the Commission controlled its published decisions, a separate direction was not considered necessary ([35]).

Before and after state of the law

The decision did not purport to announce a new general test for production. It applied existing Commission authority on the scope and exercise of the production power in s 590(2)(c). At [11], it relied on Clermont Coal Operations Pty Ltd v Troy Brown and Others for the breadth of the Commission's power to inform itself and to require production from third parties. The Deputy President stated there was no issue about power in this case, while expressly taking account of the fact that Woolworths was not otherwise associated with the proceeding.

At [12], the decision adopted the principles summarised in Re Penelope Vickers, and cited through Findley v MSS Security Pty Ltd. Those principles supplied the operative framework: apparent relevance, a connection to a case intended to be advanced, adequate particularity, and no oppressive production burden. At [13], Kennedy v Qantas Ground Services reinforced the exclusion of irrelevant material and material of only marginal or tangential relevance.

The decision's contribution is therefore principally an application of those principles to a specific factual setting. It demonstrates that a third-party production order can be appropriate where the evidence already filed defines a dispute and the proposed records could assist with that dispute. It also demonstrates that relevance and burden are assessed category by category: the Commission did not treat the application as an indivisible request, but ordered some records and refused others.

For the minor-witness arrangements, the Deputy President referred to statutory powers in ss 589, 593 and 594, describing them as concerning how, when and where a matter is dealt with, hearings, and confidential evidence ([25]). The decision does not set out a comprehensive test for all cases involving a vulnerable witness. It records a case-specific arrangement and explains how that arrangement was considered compatible with both witness welfare and procedural fairness.

The decision itself provides no account of a subsequent change in doctrine. It cites authority available to it in August 2018 and applies that authority. Any claim about the present state of the law or later judicial treatment would require sources beyond the judgment supplied here.

Key passages with plain-English translation

At [11], the Deputy President said the Commission's power to inform itself was expressed in broad terms and extended to orders requiring documents from third parties. In plain English, a person or organisation need not be a party to the case before the Commission can require relevant records. The decision nevertheless recognised the practical significance of imposing a requirement on an outside business.

At [12], the decision set out the production principles from Re Penelope Vickers. The essential point is that a request must be tied to a case the party actually intends to advance. A party cannot use production simply to see whether some possible case might emerge. The requested material also needs to be identifiable with sufficient precision, and the effort required to produce it must not be oppressive.

At [15]–[18], the Deputy President connected the records to the factual dispute. Rosters might help establish how often Mr Brewer visited the store; complaint records might help establish the nature of the interactions. “Apparent relevance” did not mean that the records were known to prove a particular account. It meant that, on the existing material, they could assist with an issue the Commission would have to decide.

At [22], the Deputy President rejected the characterisation of the limited request as a fishing exercise. The material was sought to address facts already alleged in witness statements, and the order did not extend to all five categories originally requested. This reasoning shows why the scope and evidential context mattered to the burden assessment.

At [29], the Deputy President stated that the arrangements for Person A had to avoid undue distress without compromising natural justice and procedural fairness. The practical translation is that the witness did not have to give evidence while facing the applicant, but the applicant's participation in testing the evidence was preserved through his representative's attendance and his remote observation.

At [35], the Deputy President said a separate de-identification direction was unnecessary because the Commission controlled the content of its decisions. This was not a statement that identities could never be disclosed; it explained why the Commission could use pseudonyms in its own published decision without a separate order.

What fact patterns trigger this precedent

The production reasoning is most directly relevant where a party seeks records from a non-party and can identify a live factual dispute already apparent from the material before the tribunal. Here, the dispute concerned the frequency and nature of interactions at a particular store over a defined period ([15]–[18]). The decision supports examining each requested category separately, and asking whether it could assist with an issue the decision-maker must resolve, rather than treating a broad document request as automatically relevant or irrelevant.

It is also relevant where the third party argues that compliance would be oppressive. The decision considered the time period, the age and accessibility of records, the number of categories ultimately pursued, and the third party's evidence about the likely burden ([21]–[23]). The Deputy President noted Woolworths had not provided more specific evidence of the asserted burden beyond its submissions ([22]). The decision does not establish that a ten-week search will always be proportionate; its assessment depended on the facts described in this case.

The decision also provides an example of a tailored response where a minor witness expresses discomfort about giving evidence in the presence of a party. The arrangement was designed around the circumstances recorded in Person A's statement and the technology available at the hearing location ([26], [29]–[30]). The judgment does not say that the same arrangement must apply in every case involving a minor, or that a witness's preference alone resolves the procedural question. Its stated approach was to consider both distress and procedural fairness.

Finally, the pseudonym reasoning may be relevant where a minor and a family member are witnesses rather than parties, and identification could expose the minor's identity without an identified public interest. The decision's conclusion was specific to those circumstances and to the Commission's own publication of its decision ([32]–[36]).

How later courts have treated it

The supplied judgment gives no later treatment of Brewer itself. It records that the Deputy President relied on existing Commission authorities, but it does not discuss any subsequent cases applying, distinguishing, or questioning this decision. It would therefore be unsupported by the available source to describe Brewer as having been followed or adopted by later courts.

The authorities identified within Brewer are part of its reasoning, not evidence of later treatment of Brewer. Clermont Coal Operations is cited for the Commission's broad power to obtain information and for caution around production of internal industrial policy material ([11], [20]). Re Penelope Vickers and Kennedy v Qantas Ground Services are cited for the relevance, fishing, particularity and burden principles ([12]–[13]). Their presence shows the legal framework the Deputy President applied in 2018; it does not establish how later tribunals have treated Brewer.

Still-open questions

The judgment is limited to the interlocutory record before Deputy President Anderson. It does not disclose what the produced rosters or complaint records contained, whether any category 5 documents existed, or how those materials affected the eventual hearing. It also does not provide the outcome of the substantive unfair dismissal application. Those matters cannot be inferred from this decision.

The decision leaves open how the production balance might change where a third party provides detailed evidence of the time, expense, technical difficulty, privacy implications, or commercial sensitivity involved. Woolworths raised burden concerns, but the Deputy President recorded that it did not provide more specific evidence beyond submissions ([22]). The ruling therefore does not determine the response to a materially different evidentiary record about burden.

It also does not decide how far records about duties or internal policies might be relevant in another case. Category 2 was rejected because the evidence was largely directed to the check-out area and because the records would not establish whether the operator worked elsewhere. Category 4 was rejected because the policies were remote on the evidence then available and Person A could be questioned about her knowledge ([19]–[20]). Different evidence could alter those assessments, but this judgment does not specify a general threshold for such a change.

Finally, the decision gives no broader protocol for taking evidence from minors. It records a particular arrangement supported by the witness's statement, the parties' procedural positions, and available video technology ([26]–[30]). The judgment does not address alternative measures or define a general rule about when a party may be absent, how cross-examination should be conducted in other settings, or what confidentiality measures should apply beyond the use of pseudonyms in the Commission's decision.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have it checked by a qualified Australian lawyer.