Owen v Barclays Bank Plc

Supreme Court of NSW|2010-09-30|Before: Hislop J

Introduction 1 The plaintiff was employed as an executive by the defendant. Her employment commenced on 16 May 2006 and was terminated on 22 May 2008. 2 By statement of claim filed in this court in June 2008 the plaintiff claimed damages from the defendant for various breaches of the employment contract. Her claim is disputed by the defendant. 3 Differences have arisen between the parties as to whether adequate discovery of documents has been given by the defendant. Despite attempts to resolve the dispute, substantial differences remain. This has resulted in the plaintiff, by a further amended notice of motion filed on 27 September 2010, seeking orders for discovery, and further discovery, of various categories of documents and for leave to cross examine the deponents of two affidavits of discovery previously filed. It is that motion which is the subject of the present hearing.

Background 4 By a consent order dated 1 December 2008 the parties were required to give discovery in categories. The plaintiff forwarded to the defendant its list of categories dated 9 February 2009. The defendant, by letter dated 9 March 2009, objected to some of those categories. There was no response by the plaintiff to that letter. The defendant gave discovery in May 2009 in the absence of resolution of that issue. 5 On 19 March 2010 the defendant was ordered, by consent, to file and serve a supplementary list of documents giving discovery of the categories of documents described in a notice of motion filed on 10 August 2009 excluding categories 15, 91 and 94. 6 On 28 April 2010 the defendant filed a verified supplementary list of documents. The plaintiff did not accept this discovery as adequate. 7 On 19 July 2010 additional material, which was not the subject of a verifying affidavit, was forwarded by the defendant to the plaintiff. This included, primarily, documents referred to in Schedule CO7 of the plaintiff's affidavit affirmed on 2 July 2010, the relevance of which the defendant disputed. 8 On 25 August 2010 the defendant forwarded to the plaintiff an amended supplementary list of documents "on an informal basis". The accompanying affidavit by Ms Whelan was not signed nor was the solicitor's certificate completed. 9 The plaintiff in the further amended notice of motion has nominated the various categories in respect of which discovery or further discovery is sought. The defendant placed those categories into three groups, which I accept for present purposes, namely:

(A) - categories where the defendant has produced no documents;

(B) categories in which the plaintiff alleges there are significant relevant documents which have not been discovered;

(C) documents provided to the plaintiff by the defendant notwithstanding that the defendant disputes their relevance and has not "discovered" them.

The issues 10 Senior counsel for the plaintiff informed the Court: "So there really are three separate issues. One is the bundle of returned documents. The second is the categories themselves. The third issue is the seeking leave to cross examine the two deponents of the affidavits." 11 A fourth issue, concerning category 15, was also identified. Each of these issues is commented upon hereunder.

The bundle of returned documents 12 The plaintiff's solicitors, under cover of a letter dated 16 December 2008, returned six volumes of documents to the defendant. The plaintiff contended many of those documents fell within the categories and should have been discovered but were not. The plaintiff had listed the documents returned but in such a manner as made it difficult to determine their subject matter or the categories into which they fell. Accordingly, the plaintiff was unable to identify all of the documents contained in the six volumes which she contended should have been discovered. 13 The plaintiff sought the return of the whole six volumes to her with the intent of identifying those documents contained therein which she asserted should have been discovered but were not. 14 The defendant's solicitors, in a letter dated 17 March 2010, offered to provide all documents returned by the plaintiff on 16 December 2008 to her for inspection. This has not occurred. 15 In my opinion, in these rather unusual circumstances, it would be appropriate to order the defendant to produce the six volumes of documents to the plaintiff's legal representatives for inspection.

The categories 16 The first group of categories, group A, includes categories 3, 40, 41 and 78. No documents in those categories have been discovered. The defendant submitted the mere fact that no documents have been discovered does not, by itself, indicate that the defendant has or after 12 December 2007 had had any document falling within these categories. There are therefore no grounds for concluding that the defendant has or since 12 December 2007 once had, any documents falling within these categories, and that it has failed to discover any such documents. 17 There was no evidence that the defendant had any documents falling within those categories. 18 The only other category within this group still in issue was category 93, being a letter dated 20 May 2008 referred to in the defence. The defendant asserted that the reference in the pleading was erroneous and there was no such letter and hence nothing to discover in this category. No evidence has been adduced or referred to to dispute the defendant's assertion of error. 19 I make no order as to the categories included in group A. 20 Group B - This group comprises the bulk of the disputed categories. The defendant appears to have applied a dual test in determining whether to discover particular documents, namely:

(a) does the document fall within a category or categories; and

(b) is it relevant to an issue. 21 In my opinion, this approach is misconceived as regards the categories in respect of which the defendant has been ordered to give discovery. 22 UCPR 21.2 provides, relevantly: "(1) The court may order that party B must give discovery to party A of: (a) documents within a class or classes specified in the order, or…

(4) An order for discovery may not be made in respect of a document unless the document is relevant to a fact in issue." 23 The order made on 19 March 2010 was in the following terms: "The defendant file and serve a supplementary list of documents giving discovery of the categories of documents described in the notice of motion filed by the plaintiff on 10 August 2009 other than categories 15, 19 and 94." 24 In my opinion, the defendant, by consenting to that order, accepted that the documents falling within the identified categories were relevant to a fact or facts in issue. 25 However, not all of the categories listed in the further amended notice of motion were the subject of the order made on 19 March 2010. In respect of these categories, it is necessary to determine if they are relevant to a fact or facts in issue. The scope of documents which are relevant to a fact in issue should not be unduly restricted - see the definition of "relevant to a fact in issue" contained in UCPR 21.1.2. 26 The defendant submitted that: "…the facts in issue raised by the cause of action propounded in the statement of claim are limited. These are (a) whether it was a term of the employment contract that the plaintiff would be paid a fixed bonus; (b) whether the staff handbook formed part of the employment contract and, if so, whether the defendant failed to comply with the terms of that handbook, and in particular the process specified in clause 9, in the manner alleged in the statement of claim; (c) whether the plaintiff's position was varied without the plaintiff's consent." 27 The defendant's submission defines the relevant issues too narrowly, particularly in respect of the damages claimed. In my opinion, the facts in issue as revealed by the pleadings broadly concern:

(b) the plaintiff's entitlement to termination payments, and the amount thereof;

(d) unfair and unreasonable conduct of the defendant, its servants and agents leading to the termination of the plaintiff's employment, and including the manner of such termination;

(e) damage to the plaintiff's professional reputation;

(f) the plaintiff's entitlement to exemplary or aggravated damages, and the quantum thereof. 28 Group C - This group comprises documents which had been produced by the defendant but not discovered as the defendant contends they are not discoverable. They include a relatively small number of the documents returned by the plaintiff's solicitor on 16 December 2008. The plaintiff contends those documents are discoverable. 29 It would appear the documents discoverable by the defendant will require some reconsideration.

Leave to cross examine the deponents to the affidavits verifying discovery 30 Plaintiff's senior counsel questioned the processes adopted by the defendant to ensure that all discoverable documents were discovered as:

(a) on 5 May 2009 Mr Johnson, an officer of the defendant, swore an affidavit verifying discovery. Subsequently Ms Whelan, another officer of the defendant, swore an affidavit verifying a supplementary list of documents containing a further 194 documents, all of which predated Mr Johnson's affidavit. No explanation was given as to why the 194 documents had not been discovered by Mr Johnson; and

(b) additionally, there were a number of situations where it might be reasonable to expect the defendant to have had documents but none had been discovered. 31 The plaintiff's senior counsel accepted that it was exceptional to permit cross examination of the deponent to an affidavit verifying discovery. Nevertheless, it was submitted that this was a case where, exceptionally, such an order should be made. The plaintiff relied upon Procter v Kalivis [2009] FCA 1518, (2009) 263 ALR461 where Besanko J held that cross examination of a deponent on an affidavit sworn in response to an order for discovery is in fact allowed:

(a) in certain circumstances where the discovery has been insufficient;

(b) where there are reasonable grounds for being fairly certain that there are other relevant documents;

(c) where the evidence raises doubts as to whether the process of the court is being abused in relation to discovery or there are serious questions as to the legitimacy of the position taken by the defendants in relation to discovery; and

(d) where there is no effective means other than cross examination of preventing an injustice to the applicants. 32 The defendant accepted the principle stated in Procter but submitted: "Your Honour can draw no inference adverse to the defendant about the processes that have been followed merely by reason of the fact that more than one list of documents has been prepared. Indeed, if that were the case, then whenever the court had a further affidavit of documents the court would necessarily order discovery because presumptively, on my friend's view of the significance of filing a further affidavit of documents, that bespeaks of a failure to comply with discovery in a manner warranting further court intervention by an order for cross examination." 33 In my opinion, it is appropriate to order further discovery by the defendant before taking the exceptional step of ordering that the deponents to the affidavits verifying discovery be cross examined on their affidavits.

Category 15 34 Category 15 is in the following terms: "Documents concerned with, relating to, recording or evidencing salary, bonuses or commissions of all directors in the Asia-Pacific DCM team and Mr Lindley, Ms Whelan, Mr Lucas Pontifix and Mr Alan Stuart-Grant for the period May 2006 to February 2009" 35 On 19 March 2010 the parties agreed that instead of making discovery pursuant to category 15 the defendant would provide "a statement specifying the total remuneration of all employees of the defendant's Asia Pacific DCM team for the period May 2006 to February 2009 as a percentage of the revenue booked to the Asia Pacific DCM for the same period, in lieu of discovering documents referred to in category 15." 36 The defendant informed the Court it had been unable to give that statement. It asked to be relieved from that order. It conceded it had not made discovery in respect of category 15. 37 The defendant submitted there should be no discovery of documents falling within category 15 as they were not relevant to any fact in issue. The asserted relevance relates to the bonus issue and performance. Those issues are very confined, that is a breach of a term to pay a fixed amount of bonus for a particular time. The documents identified in category 15 were irrelevant to that issue. Similarly, it was irrelevant to the performance of the process stipulated in the staff handbook and all other breaches of contract pleaded. 38 The plaintiff submitted that if the defendant "can't meet the terms of the compromise, which they are now saying they can't, then category 15 should be met in proper and full terms. Category 15 was relevant to form the basis of the comparator so it was alleged the plaintiff was unfairly treated and one of the ways to show the unfair treatment was to show the way others were treated at the same time doing the same sort of work in the same team or supervising and managing the same team. Thus category 15 was highly relevant. It went to the heart of the bonus claim and should be met in full and proper terms." 39 In my opinion, the defendant, by negotiating and agreeing with the plaintiff to provide a statement in lieu of the discovery documents referred to in category 15 accepted that it would otherwise have been proper to make an order that there be discovery of the documents falling within category 15. In my opinion, it is too late for the defendant to contest the relevance of that category. In any event, it is, in my opinion, relevant. The defendant will only be relieved from the order if it makes discovery of the documents falling within category 15.

Determination 40 In my opinion, the discovery thus far is unsatisfactory. In an attempt to correct the situation, I propose to make the following orders:

The defendant is to produce for inspection by the plaintiff's legal advisers the six volumes of documents forwarded to them under cover of the plaintiff's solicitor's letter dated 16 December 2008.

The plaintiff is to inform the defendant of any documents in the six volumes which she submits are discoverable and the category or categories within which they fall.

The defendant is to provide discovery with verification of all discoverable documents which have not been the subject of earlier verified discovery. 41 If satisfactory discovery does not result from compliance with the above orders, the parties may approach the court to further consider the matter and to determine whether the circumstances are such that Mr Johnson and Ms Whelan should be ordered to attend court for cross examination on their affidavits.

The defendant is to produce for inspection by the plaintiff's legal advisers the six volumes of documents forwarded to them under cover of the plaintiff's solicitor's letter dated 16 December 2008 by 5 November 2010.

The plaintiff is to inform the defendant of any documents in the six volumes which she submits are discoverable and the category or categories within which they fall by 12 November 2010.

The defendant is to provide discovery with verification of all discoverable documents which have not been the subject of earlier verified discovery by 26 November 2010.

Liberty to the parties to apply on three days notice.

The proceedings be listed for directions before the registrar on 3 December 2010. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Owen v Barclays Bank Plc [2010] NSWSC 1225

CASES CITED : Procter v Kalivis [2009] FCA 1518, (2009) 263 ALR 461

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