Pitman v State of Victoria

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. Before me is an informal application by the applicant, Mx Pitman, seeking leave to issue a further subpoena in excess of the five-subpoena limit imposed by r 16.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
2. This matter was commenced by Mx Pitman on 15 August 2024, and is listed for a final hearing before me on a three-day estimate, to commence on 2 April 2025.
3. To date, Mx Pitman has requested the issue of six subpoenas in these proceedings. On 11 February 2025, they attempted to request the issue of two further subpoenas. The second subpoena filed on this date, if issued, would require Ms Christena Singh to attend Court on the date of the final hearing of this matter (the Singh subpoena) and it is this subpoena which is the subject of this judgment.
4. Rule 16.04 of the Rules stipulates that, "unless the Court directs otherwise, a party must not request the issue of more than 5 subpoenas in a proceeding".
5. On 4 March 2025, I made the following orders in Chambers:
   1. By 7 March 2025, the applicant file and serve a document in which they specify the matters or subjects on which they expect Ms Christena Singh to be in a position to give evidence, and the relevance of those matters or subjects to any issue in the proceeding.
   2. By 13 March 2025, the respondent file and serve a submission responding to the matters identified in the document that will be filed pursuant to order 1.
   3. Following the filing of the material referred to in orders 1 and 2, a decision on the question of leave to issue a subpoena to Ms Singh will be made on the papers.
6. In compliance with the above orders, on 7 March 2025 Mx Pitman filed an affidavit in support of leave being granted to issue the Singh subpoena (the Pitman affidavit).
7. On 13 March 2025, the respondent filed submissions in which it identified the reasons why it opposed the grant of leave to Mx Pitman to issue the Singh subpoena.

1. In Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 4) [2022] FedCFamC2G 743, Judge Manousaridis helpfully set out the principles for issuing or setting aside subpoenas, including in circumstances where the subpoena limit has been exceeded. At [4]-[8] his Honour observed:
   1. This Court has power under r 16.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) to issue a subpoena to give evidence at the request of a party. A party usually makes such request by completing a prescribed form of subpoena and filing it with the Court. The Court usually issues the subpoena without any order of a Judge or a Registrar; and it is issued by staff at the Court's Registry accepting for filing a completed form of subpoena and recording on it the place at which and the time and day on which the person to whom the subpoena is addressed must attend to give evidence.
   2. Even though a subpoena is usually issued by the Court on the application of a party without any order authorising its issue, the Court has power under r 16.08 of the GFL Rules to set aside a subpoena that has been issued. There are many authorities that identify the principles for setting aside subpoenas for production. The Full Federal Court stated those principles in Wong v Sklavos as follows (emphasis added):[1]

The party issuing a subpoena bears the onus of demonstrating that the subpoena has a legitimate forensic purpose in relation to the issues in the proceedings: Santos Ltd v Pipelines Authority of South Australia [1996] SASC 5578; (1996) 66 SASR 38 at 52. A subpoena may be set aside if it requires the production of documents which do not have apparent relevance to the issues arising on the pleadings: Trade Practice Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90; Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) [2010] FCA 398; (2010) 269 ALR 76 at [39]- [40]; McHugh v Australian Jockey Club Limited [No 2] [2011] FCA 724 at [13]; McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233; (2005) 221 ALR 785 at [35]; Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 558 at [17]. Other cases have used different terminology, but with essentially the same effect, for example, by requiring that, viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative (R v Barton (1981) 2 NSWLR 414 at 420), or that the material sought is reasonably likely to add in some way to the relevant evidence in the case (Spencer Motors Pty Ltd v LNC Industries Ltd (1982) 2 NSWLR 921 at 927), or that it be "on the cards" that the documents sought will materially assist the party at whose request the subpoena has been issued: Allister v The Queen [1984] HCA 85; (1984) 154 CLR 404 at 414; Tamawood Ltd v Habitare Developments Pty Ltd [2009] FCA 364 at [13], [35]-[38].

1. There are some authorities, however, that have also considered the circumstances in which a court may set aside a subpoena to give evidence. Heydon JA (as his Honour then was) referred to a number of these in Witness v Marsden, and noted the "authorities indicate that there are numerous circumstances in which the recipient of a subpoena ad testificandum, or equivalent process, can move to have it set aside".[2] One of those cases is R v Baines,[3] where, in a criminal trial, persons on whom subpoenas to give evidence had been issued successfully obtained an order setting aside the subpoenas on the ground that the subpoenas were not issued in good faith for the purpose of the persons against whom they were issued giving relevant evidence. Bigham J said (emphasis added):[4]

There can be no doubt as to the jurisdiction of the Court to interfere where it is satisfied that its process is being used for indirect or improper objects. It must not be supposed that the position which the applicants occupy [one was Prime Minister, H H Asquith, and the other Home Secretary, H J Gladstone] affords them any privilege. They stand in the same position as any other of His Majesty's subjects. But the Court has to inquire whether its process has been issued against them with the object and expectation on reasonable grounds of obtaining from them evidence which can be relevant. . . . We have before us the affidavits of the applicants, in which they both swear that they are wholly unable to give any evidence which can possibly be relevant to any issue which may arise. I believe that to be true. Therefore it would be an idle waste of time and money to require them to go down to Leeds to give evidence. The applicants further say that no application has been made to them by the defendants for any proof of the evidence to be given by them. That statement satisfies me that this process has not been issued for the simple and proper purpose of obtaining evidence, but for a different and ulterior purpose, a purpose to which the process of this Court ought not to be applied.

1. These passages might be read as suggesting that it will be sufficient to establish a legitimate forensic purpose if the person who has applied for the issue of the subpoena shows that the documents called for by the subpoena, or the evidence the person against whom the subpoena has been issued is expected to give, are likely to be relevant to any material fact in issue in the proceeding in which the subpoena has been issued. That, however, would not be correct.
2. Parties apply for the issue of a subpoena in the context of adversarial litigation where each party is responsible for adducing evidence to prove facts in relation to which he or she bears the burden of proof, and to contradict or undermine evidence the other party has adduced or may adduce. A subpoena will be issued for a legitimate forensic purpose only to the extent it can be shown that there is a sufficient prospect the subpoena will bring before a court documents or testimony that not only may be relevant to a fact in issue, but may be relevant in a way that may assist the case of the party who applies for the issue of the subpoena, either by providing evidence that may assist the party to prove facts the party has the burden of proving, or that may assist the party to contradict or undermine evidence the other party will or may adduce.

1. It is uncontroversial that the question which needs to be determined in considering whether to grant Mx Pitman leave to issue the Singh subpoena is whether there is a legitimate forensic purpose for its issue: see Comcare v John Holland Rail Pty Ltd (No 5) [2011] FCA 622; (2011) 195 FCR 43. Whether there is a legitimate forensic purpose is a question which must be addressed in the context of s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act), which reads as follows;

190 Overarching purpose of civil practice and procedure provisions

1. The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:

   a) according to law; and

   b) as quickly, inexpensively and efficiently as possible.

2. Without limiting subsection (1), the overarching purpose includes the following objectives:

   a) the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);

   b) the efficient use of the judicial and administrative resources available for the purposes of the Court;

   c) the efficient disposal of the Court's overall caseload;

   d) the disposal of all proceedings in a timely manner;

   e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

3. The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.

4. The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:

   a) the Rules of Court;

   b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).

1. The test to be applied in determining the existence of a legitimate forensic purpose was set out by Bromberg J in Comcare:
   1. On an application for leave to issue a subpoena (or where a subpoena is sought to be set aside) the test for the existence of a legitimate forensic purpose is that of apparent relevance: Arnotts at 103. As Stone J said in Dorajay Pty Ltd v Aristocrat Leisure Limited [2005] FCA 588 at [17], the general principles propounded by Beaumont J in Arnotts have been often applied or cited with approval. Her Honour noted the qualification expressed by Spender J in Cosco Holdings Pty Ltd v Commissioner for Taxation [1997] FCA 1504. The import of what Stone J concludes at [16]-[18] is that apparent relevance to an issue is demonstrated where the material sought could reasonably be expected to throw light on the issue in the proceeding and not simply where the material "might permit a case to be made".
   2. The test of apparent relevance has also been applied in relation to documents sought under a notice to produce. In Sportsbet Pty Ltd v State of New South Wales (No 9) [2010] FCA 31, Perram J by reference to the approach taken by Sackville J in Seven Network Limited v News Limited (No 11) [2006] FCA 174 at [6], posed the test as whether the documents sought are "reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case": at [3]. Perram J continued at [4]:

Reasonable likelihood is a different concept to reasonable possibility and, to my mind, connotes a degree of certainty as to the material's potential relevance that travels beyond the merely conjectural. It is to be distinguished from the tests applicable in discovery.

1. Perram J also noted that there are differences between the standard of apparent relevance required between discovery, subpoenas and notices to produce. His Honour observed at [9] (and I respectfully agree) that:

The discretionary differences between discovery, subpoenas and notices to produce constitute one of the reasons why the test of apparent relevance is tighter for subpoenas and notices to produce than the test of relevance for discovery.

1. Sportsbet was followed by Cowdroy J at [15]-[17] in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Emergency Transport Technology Pty Ltd [2011] FCA 181.
2. Whether a document or anticipated evidence is reasonably likely to throw light on an issue or issues in the proceeding depends principally on two things. Firstly, an assessment as to whether the anticipated evidence can reasonably be expected to be available so as to be deployed and secondly the likelihood that if available, the anticipated evidence will rationally affect the determination of a fact in issue. As Greenwood J said in McIlwain at [36] it is "necessary to establish grounds for a belief that a document or class of documents relating to a matter in question in the proceedings exists" and that such documents or class are available in the sense that they are in the possession, custody or power of the respondent to the motion. The requirement that material be relevant in the sense that it "could rationally affect (directly or indirectly), the assessment of the probability of the existence or a fact in issue" is adverted to by Greenwood J at subparagraph (j) of [35].

1. Pursuant to the principles above, and with consideration of s 190 of the FCFCOA Act, I am required to firstly identify the issues in the proceeding, and secondly, identify the evidence that Mx Pitman says will come out through the Singh subpoena.

1. On 29 January 2025, Mx Pitman filed an amended statement of claim which includes the claim that they were unlawfully dismissed by the respondent due to their physical or mental disability. Mx Pitman says that this dismissal occurred in contravention of s 351(1) of the Fair Work Act 2009 (Cth) (FW Act).
2. In response, the respondent denies the allegation and says that it dismissed Mx Pitman because of their inability to perform the inherent requirements of their role, thereby relying on s 351(2)(b) of the FW Act.
3. Provided that Mx Pitman is able to establish that they had a "physical or mental disability" at relevant times, the onus lies on the respondent to prove that it did not terminate Mx Pitman's contract of employment for the reason or for reasons that included as a substantial factor Mx Pitman's disability. This exercise will necessarily involve an evaluation of the evidence given by the decision maker/s nominated by the respondent. It is accepted by the respondent that the dismissal of Mx Pitman constituted "adverse action".
4. The respondent proposes to discharge its burden of proof by reading at the hearing commencing on 2 April 2025 the affidavit of Ms Batt made on 26 November 2024 and the affidavit of Ms Carosone made on the same date. Ms Batt is the Director, People & Culture Operations in the Department of Jobs, Skills, Industry and Regions (Department). It is Ms Batt's evidence that she made the decision to terminate Mx Pitman's employment, following the completion of a show cause process. Ms Carosone is the Executive Director, Small Business Victoria, a business unit within the Department. It is Ms Carosone's evidence, amongst other things, that she made the decision to proceed with a show cause process and provided recommendations as to "next steps", including that Mx Pitman's employment be terminated, which informed the brief sent to Ms Batt.

1. In the Pitman affidavit, Mx Pitman recorded the following at [2]-[10]:
   1. The evidence of Ms Singh will help reveal the duality of the Respondent's processes in deciding to terminate my employment.
   2. One process involves deciding to terminate my employment because of my managers' difficult in dealing with my disability. This I refer to as the 'actual' process.
   3. The other process - a function of the People and Culture team - contrives to generate a paper trail to shield the department while taking an otherwise unlawful action. This I refer to as the 'sham' process.
   4. The Respondent, recognising it bears the onus of proof, seeks to present this Court with evidence of only the sham process.
   5. From her evidence, it appears Ms Carosone set out to terminate my employment upon learning of Ms Singh's son's distress at overhearing a particular telephone call in January or February 2022.
   6. At the time, my emotional stability was impaired by an unacknowledged side-effect of a powerful prescribed pain medication. By the time I stopped taking the medication, it was already too late.
   7. The Health and Wellness team had become involved, and I now reported to Ms Carosone. Neither of these measures were taken to address my welfare.
   8. The oral evidence of Ms Singh at the hearing will afford the Court an insight into the actual process which led to the termination of my employment.
   9. Specifically, the cross examination of Ms Singh will address:
      1. Our interactions leading up to her meeting with Ms Carosone in February 2022;
      2. Details of the conversation during the meeting with Ms Carosone in February 2022;
      3. The nature and extent of the support subsequently provided to Ms Singh by the Respondent;
      4. My return to work following the acquired brain injury and the Respondent's failure to provide pre-existing reasonable adjustments;
      5. The decision to suspend my employment in May 2023.

1. The respondent opposes the Court granting Mx Pitman leave to issue the Singh subpoena for the reason that they have not sufficiently identified the relevance of the evidence they say Ms Singh will be asked to give at the hearing and how this will assist the Court in its determination of the issues in dispute in this proceeding.
2. The respondent submits it to be significant that Mx Pitman does not assert that Ms Singh was either a decision-maker of, or someone who had a material effect on, the decision to dismiss them from their employment with the respondent. This is borne out by the topics for cross-examination identified by Mx Pitman at paragraph [10] of their affidavit, none of which concern the dismissal, or the decision to effect the dismissal, which occurred in July 2024.
3. Instead, paragraphs 10(a) and (b) relate to alleged interactions between Ms Singh and Mx Pitman leading up to a meeting between Ms Singh and Mx Pitman in February 2022, as well as the details of what occurred during that meeting. These events occurred more than two years before Mx Pitman's dismissal. Relatedly, in paragraph 6, Mx Pitman describes a phone call between themselves and Ms Singh that occurred in January or February 2022. The respondent notes that Mx Pitman has not led any evidence about this alleged phone call or its relevance to the dismissal and the reasons for the dismissal in their affidavits filed in support of either the interlocutory or substantive applications.
4. Paragraph 10(c) relates to support provided by the respondent to Ms Singh after February 2022 (for an unspecified period of time). The respondent submits that the relevance of this evidence is not at all explained. Furthermore, as Ms Singh was not involved in the decision to dismiss Mx Pitman, any support provided to her by the respondent has no relevance to the state of mind of the respondent in effecting the dismissal.
5. Paragraph 10(d) relates to the applicant's return to work following an acquired brain injury and the respondent's failure to provide reasonable adjustments. The respondent submits on this topic that:

(a) Mx Pitman has not identified the acquired brain injury as either being the mental disability for which they claim they were dismissed or having any relevance to the mental disability for which they claim they were dismissed;

(b) Whether Mx Pitman was or was not provided with adjustments to their role on their return to work after sustaining the acquired brain injury (pre-existing or otherwise) in January to May 2023 is not relevant to the Court's assessment of the state of mind of the respondent in July 2024 (more than 12 months later) at the time of effecting the dismissal; and

(c) Mx Pitman has not claimed that the suspension of their employment in May 2023 constitutes an adverse action, nor have they explained the relevance of Ms Singh's evidence about that event to the ultimate decision to dismiss them from their employment in July 2024.

1. Furthermore, according to the respondent, Mx Pitman has not explained the alleged involvement of Ms Singh in any decision about their return to work or the provision of adjustments in their role.

1. In considering this application, I have maintained at the forefront of my mind the fact that Mx Pitman is currently managing their litigation without the benefit of a lawyer. I have also considered whether, beyond the Pitman affidavit, there is anything in the substantive affidavits filed by Mx Pitman in the proceeding - these being the affidavits filed on 19 November 2024, 10 December 2024 and 3 March 2025 - that might reveal a legitimate forensic purpose for the issue of the Singh subpoena.
2. Ultimately, I am not persuaded that any of the anticipated evidence of Ms Singh will assist Mx Pitman by providing evidence that may assist them to prove facts that they have the burden of proving, or that may assist them to contradict or undermine evidence the respondent will or may adduce. I am also not persuaded that the anticipated evidence will rationally affect the determination of a fact in issue.
3. Instead, I consider that the granting of leave to issue the Singh subpoena would be antithetical to this Court's overarching purpose that requires the just resolution of disputes quickly, inexpensively and efficiently as possible (FCFCOA Act, s 190(1)(a)).
4. The process of taking evidence from Ms Singh will add time to a matter listed ambitiously for three days and will add disproportionately to the volume of evidence to be adduced, especially given the timeframes across which Mx Pitman would propose questioning Ms Singh. It will add evidence about matters that are of peripheral significance at best to the issues in the proceeding and will likely operate to distract from the genuine controversies thrown up by Mx Pitman's application.
5. Although Mx Pitman submits that the evidence of Ms Singh will assist to expose the "actual" process behind, or motivation for, their dismissal, on closer examination it appears that the basis for this submission reflects and adopts evidence that is contained in the affidavit of Ms Carosone, who does not shy away from describing the difficulties experienced by Ms Singh in the management of Mx Pitman.[5]
6. However, in circumstances where Mx Pitman does not suggest that Ms Singh was a decision maker or made a material contribution to the decision to terminate their employment, and where none of the material before the Court suggests this to be even a remote possibility, there is no legitimate forensic purpose to be served by hearing separately from Ms Singh as to matters already exposed by Ms Carosone. Mx Pitman does not suggest that any alleged decision taken to make changes to the "inherent requirements document" was made by Ms Singh, only that those changes corresponded with difficulties Mx Pitman had been reporting to Ms Singh and the SBV team members.[6]
7. To the extent that information conveyed by Ms Singh might have informed any relevant decision taken by Ms Carosone in relation to the continuation of Mx Pitman's employment, they will have the opportunity at trial to cross-examine Ms Carosone about such matters.
8. Furthermore, although Mx Pitman identifies the subjects on which they expect Ms Singh to be in a position to give evidence, they say nothing about what they expect Ms Singh will say in relation to each subject. Because it will be Mx Pitman, not the respondent, who will be calling Ms Singh, the combined effect of ss 37 and 38 of the Evidence Act 1995 (Cth) means that Mx Pitman would be precluded from asking leading questions of Ms Singh unless and until such time as they obtained leave to cross-examine in relation to evidence that was considered unfavourable to Ms Pitman's case. It is difficult in these circumstances to identify a possible benefit to Mx Pitman or the resolution of the proceeding more generally, that would overcome the additional time that would result if I was to grant leave to issue the Singh subpoena.

1. As Mx Pitman has not demonstrated there is a legitimate forensic purpose to them being permitted to have the Singh subpoena issued, I will order that the application for leave (albeit made informally) be dismissed.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons.

[1] Wong v Sklavos [2014] FCAFC 120, at [12].

[2] Witness v Marsden [2000] NSWCA 52, at [60].

[3] R v Baines [1908] UKLawRpKQB 159; [1909] 1 KB 258, at page 261.

[4] R v Baines [1908] UKLawRpKQB 159; [1909] 1 KB 258, at page 261.

[5] See Carosone affidavit at [15]-[18] and compare affidavit of Mx Pitman filed on 10 December 2024 at [14]-[15].

[6] See the affidavit of Rosie Pitman filed on 10 December 2024 at [14].