Reiche v Neometals Ltd

No. Document(s) / Specific Category of Documents Sought Basis of Request Response Ruling Reason why Documents are relevant and material to the outcome of the case Reason why Documents are assumed to be in possession, custody and control of Respondent concerning the redundancy, category of documents (see Orders, para. 4); (iii) the decision to terminate the applicant's employment with immediate effect, 2. the documents requested are not sufficiently relevant to the case or material to its outcome (see Orders, para. 5(b)(i)); and (iv) the actual redundancy letter and any other documentation of discussions or decision making concerning the roles were determined to be made redundant. 3. the request is disproportionate to the expedited nature of the case management directions and would impose an unreasonable burden on the respondent (see Orders, para. 5(b)(iii)). In relation to the applicant's request at 1(i), the respondent submits that employees are not made redundant; rather the role/position that an employee occupies is made redundant when it is no longer required by the respondent. It is assumed this request relates to the respondent's decision to make certain roles, other than the applicant's role, redundant. As drafted, the applicant's request at 1(i) No. Document(s) / Specific Category of Documents Sought Basis of Request Response Ruling Reason why Documents are relevant and material to the outcome of the case Reason why Documents are assumed to be in possession, custody and control of Respondent seeks the production of all documents (including emails, memos, minutes of meetings, letters and other documentation or correspondence) relating to the other around 11 employees of the respondent who were made redundant due to the recent restructure. This is an extraordinarily broad request and would require the respondent to carry out an unduly burdensome search through its records for documents which are irrelevant and therefore of no probative value to the case. The respondent objects to this request on the basis that it is unduly burdensome. The respondent will admit that the applicant was the only employee whose employment was terminated by the respondent with immediate effect and did not work out his notice period, except that one other employee did not work out her notice period at her request. Documents in relation to the decision to make the applicant's role No. Document(s) / Specific Category of Documents Sought Basis of Request Response Ruling Reason why Documents are relevant and material to the outcome of the case Reason why Documents are assumed to be in possession, custody and control of Respondent redundant are dealt with under request 1(ii) below. In relation to the applicant's request at 1(ii), the respondent submits that a position is not terminated, and rather, a position is made redundant or an employee's employment is terminated. This request is therefore unclear. Further and in any event, to the extent the request at 1(ii) relates to the decision to make the applicant's role redundant, it can be answered by providing the specific documents that the respondent has agreed to provide. With respect to the applicant's request at 1(iii), the respondent will admit that (i) of the employees whose employment was terminated for reasons of redundancy, the applicant was the only employee who was paid in lieu of receiving notice of his termination (other than his former personal assistant who requested that she not work out her notice period); No. Document(s) / Specific Category of Documents Sought Basis of Request Response Ruling Reason why Documents are relevant and material to the outcome of the case Reason why Documents are assumed to be in possession, custody and control of Respondent and (ii) by reason of his immediate termination, the applicant has suffered a detriment within the meaning of section 1317ADA of the Corporations Act 2001 (Cth). Further and in any event, the request at 1(iii) can be answered by providing the specific documents that the respondent has agreed to provide. With respect to the applicant's request at 1(iv), the applicant requests the production of documented discussions or decision- making concerning each of the roles which were made redundant as part of the respondent's restructure. These documents are irrelevant to any issues in dispute between the parties in this trial. Any redundancy letters, documentation or correspondences relating to the other around 11 redundancies will have no bearing whatsoever on the substantive issues of the trial. The respondent's request amounts to nothing more than a fishing expedition and No. Document(s) / Specific Category of Documents Sought Basis of Request Response Ruling Reason why Documents are relevant and material to the outcome of the case Reason why Documents are assumed to be in possession, custody and control of Respondent is an improper use of the document production process. Further and in any event, it is unduly burdensome given the admissions the respondent will make as noted above, and the documents the respondent has agreed to provide. 2. All emails, memoranda, minutes of meetings, letters, or investigations undertaken in accordance with the respondent's whistleblowing policy or other correspondence relating to the applicant's formal whistleblower disclosures made in writing on 9 July 2024. The documents are material and relevant as the applicant alleges that he was not provided whistleblower protections pursuant to Part 9.4AAA of the Corporations Act 2001 (Cth) after making the whistleblower disclosures. The respondent should have possession, custody or control of these documents as there should be records of the whistleblower disclosure and the subsequent investigation/s created by representatives of the respondent to comply with the whistleblower investigation requirements of the Corporations Act 2001 (Cth). The respondent objects to the request on the basis that: The requested documents are not relevant to the applicant's contentions set out para 74 of his concise statement. Such documents are not in the applicant's possession, custody or control. 1. the documents requested are not sufficiently relevant to the case or material to its outcome (see Orders, para. 5(b)(i)); and 2. the request is disproportionate to the expedited nature of the case management directions and would impose an unreasonable burden on the respondent (see Orders, para. 5(b)(iii)). The applicant does not allege that he was "not provided whistleblower protections pursuant to Part 9.4AAA of No. Document(s) / Specific Category of Documents Sought Basis of Request Response Ruling Reason why Documents are relevant and material to the outcome of the case Reason why Documents are assumed to be in possession, custody and control of Respondent the Corporations Act". The applicant alleges that the respondent caused him detriment by reason of a belief or suspicion that he had made, may have made, proposed to make or could make a disclosure that qualifies for protection under Part 9.4AAA. The respondent will admit that the applicant's disclosure made on 9 July 2024 was a disclosure that qualified for protection under Part 9.4AAA, and that the respondent caused detriment to the applicant by making his role redundant and terminating his employment and paying him in lieu of providing him notice. The relevant issue is whether a belief or suspicion that the applicant had made such a disclosure formed any part of the reasons for the respondent causing detriment to the applicant. The respondent has the burden of proof with respect to this issue. The documents requested are not relevant to No. Document(s) / Specific Category of Documents Sought Basis of Request Response Ruling Reason why Documents are relevant and material to the outcome of the case Reason why Documents are assumed to be in possession, custody and control of Respondent that issue. In any event, even if they were relevant, the request is so broad as to be disproportionate to the case, having regard to the expedited program, and would impose an unreasonable burden on the respondent. 3. All emails, memoranda, correspondence, records of investigations or other documentation relating to the applicant's allegations of bullying. The documents are material and relevant in that the applicant alleges that he was bullied, and pursuant to its obligations under its own bullying policy, the respondent was obliged to conduct an investigation into the bullying allegations. The respondent should have possession, custody or control of these documents as there should be records of the bullying allegations and the subsequent investigation/s created by representatives of the respondent to comply with the respondent's bullying policy. The respondent objects to this request on the basis that it does not concern documents which are relevant to the case and its outcome (see Orders, para. 5(b)(i)). The respondent is to give discovery of documents directly relevant to the issues raised in paras 44-47 and 50-53 of his concise statement. Such documents are not in the applicant's possession, custody or control. The respondent will admit that the applicant, in his disclosure dated 9 July 2024, raised allegations of bullying and harassment by Ms Purdie, but will deny that any conduct amounted to bullying or harassment. This will be a question of fact to be determined based on the evidence at trial in relation to the alleged conduct. However, whether or not the respondent conducted an investigation into the applicant's bullying No. Document(s) / Specific Category of Documents Sought Basis of Request Response Ruling Reason why Documents are relevant and material to the outcome of the case Reason why Documents are assumed to be in possession, custody and control of Respondent allegations and acted consistently with its bullying policy in doing so, is not a material fact in issue, nor a matter relevant to the trial and its outcome. Accordingly, the documents sought in this request are wholly irrelevant to the trial. 4. All emails, memoranda, correspondence, investigations undertaken or other documentation relating to the applicant's allegations of the forgery of signatures made as part of the applicant's formal whistleblower disclosure on 9 July 2024. The documents are material and relevant to the question of whether the respondent's affairs were being properly and honestly managed. . The respondent should have possession, custody or control of these documents as there should be records of the subsequent investigation/s created by representatives of the respondent. The respondent objects to this request on the basis that the documents sought are wholly irrelevant to the issues in dispute between the parties (see Orders, para. 5(b)(i)). The requested documents are not relevant to the applicant's contentions set out in para 74 of his concise statement. Moreover, as a publicly listed company, such allegations are sufficiently serious to warrant a formal investigation by the respondent. The issue goes directly to the question of whether the applicant reasonably suspected misconduct or an improper state of affairs in relation to the respondent, as a regulated entity and as a publicly listed company. Such documents are not in the applicant's possession, custody or control Whether 'the respondent's affairs were being properly and honestly managed' or the applicant's allegations were 'sufficiently serious to warrant a formal investigation' are not issues in this case. As outlined in response to request 1 and 2, the applicant alleges that the respondent caused him detriment by reason of a belief or suspicion that he had made, may have made, proposed to make or could make a disclosure that qualifies for No. Document(s) / Specific Category of Documents Sought Basis of Request Response Ruling Reason why Documents are relevant and material to the outcome of the case Reason why Documents are assumed to be in possession, custody and control of Respondent protection under Part 9.4AAA. The respondent will admit that the applicant's disclosure made on 9 July 2024 was a disclosure that qualified for protection under Part 9.4AAA, and that the respondent caused detriment to the applicant by making his role redundant and terminating his employment and paying him in lieu of providing him notice. The relevant issue is whether a belief or suspicion that the applicant had made such a disclosure formed any part of the reasons for the respondent causing detriment to the applicant. The respondent has the burden of proof with respect to this issue. The documents requested, which relate to the steps taken in response to one of the allegations in the applicant's disclosure of 9 July 2024, are not relevant to that issue. In any event, even if they were relevant, the request is No. Document(s) / Specific Category of Documents Sought Basis of Request Response Ruling Reason why Documents are relevant and material to the outcome of the case Reason why Documents are assumed to be in possession, custody and control of Respondent so broad as to be disproportionate to the case, having regard to the expedited program, and would impose an unreasonable burden on the respondent. 5. All emails, memoranda, correspondence, investigations undertaken or other documentation relating to the applicant's allegations of re- engineering made as part of the applicant's formal whistleblower disclosure on 9 July 2024. The documents are material and relevant to the reasonably held belief of the applicant about misconduct or an improper state of affairs in relation to the respondent as a regulated entity and as a publicly listed company. The potential legal ramifications to the respondent if the re- engineering allegation was accurate were significant. The respondent should have possession, custody or control of these documents as there should be records of the subsequent investigation/s created by representatives of the respondent. The respondent objects to this request on the basis that the documents sought are wholly irrelevant to the issues in dispute between the parties (see Orders, para. 5(b)(i)). The requested documents are not relevant to the applicant's contentions set out in para 74 of his concise statement. Such documents are not in the applicant's possession, custody or control As outlined in response to request 1, 2 and 3, the applicant alleges that the respondent caused him detriment by reason of a belief or suspicion that he had made, may have made, proposed to make or could make a disclosure that qualifies for protection under Part 9.4AAA. The respondent will admit that the applicant's disclosure made on 9 July 2024 was a disclosure that qualified for protection under Part 9.4AAA, and that the respondent caused detriment No. Document(s) / Specific Category of Documents Sought Basis of Request Response Ruling Reason why Documents are relevant and material to the outcome of the case Reason why Documents are assumed to be in possession, custody and control of Respondent to the applicant by making his role redundant and terminating his employment and paying him in lieu of providing him notice. The relevant issue is whether a belief or suspicion that the applicant had made such a disclosure formed any part of the reasons for the respondent causing detriment to the applicant. The respondent has the burden of proof with respect to this issue. The documents requested, which relate to the steps taken in response to one of the allegations in the applicant's disclosure of 9 July 2024, are not relevant to that issue. In any event, even if they were relevant, the request is so broad as to be disproportionate to the case, having regard to the expedited program, and would impose an unreasonable burden on the respondent.

No. Document(s) / Specific Category of Documents Sought Basis of Request Response Ruling Reason why Documents are relevant and material to the outcome of the case Reason why Documents are assumed to be in possession, custody and control of Respondent 6. All emails, memoranda, correspondence, investigations undertaken or other documentation including the respondent's Time in Lieu Policy relating to all of the applicant's claims for Time in Lieu, all assessments of the applicant's claims for Time in Lieu, all notes and other documentation of decisions made by the respondent in relation to claims for Time in Lieu by the applicant. The documents are material and relevant as the applicant alleges due to his whistleblowing disclosures. his latest Time in Lieu claim was rejected. The respondent should have possession, custody or control of these documents as they were created by representatives of the respondent. The respondent objects to this request on the basis that the documents sought are wholly irrelevant to the issues in dispute between the parties (see Orders, para. 5(b)(i)). The respondent is to give discovery of documents directly relevant to the issues raised in para 68 of his concise statement. Such documents are not in the applicant's possession, custody or control. First, while the respondent bears the onus of proving that the applicant's victimisation claim is not made out, the applicant bears the onus of establishing that he made a valid TIL claim. These matters are within the applicant's knowledge, since it is he who alleges that he worked excessive overtime and was entitled to TIL. Contrary to the applicant's assertion, many of the documents requested are already in the applicant's possession: the applicant has attached the TIL policy, his application (including supporting documents) and the respondent's initial and only rejection of the claim. Second, the respondent will deny that the applicant was entitled to the TIL claimed and therefore any rejection of No. Document(s) / Specific Category of Documents Sought Basis of Request Response Ruling Reason why Documents are relevant and material to the outcome of the case Reason why Documents are assumed to be in possession, custody and control of Respondent the claim did not constitute a detriment for the purposes of section 1317ADA of the Corporations Act 2001 (Cth). This is a question of law, based on the applicant's contract of employment, the TIL policy, the application and the rejection, the documents in relation to which are already attached to the applicant's affidavit. Finally, the relevant issue is whether a belief or suspicion that the applicant had made such a disclosure formed any part of the reasons for the respondent causing detriment to the applicant. The respondent has the burden of proof with respect to this issue. The applicant's affidavit already attaches the rejection in the system. Based on its current searches of its records, the respondent has identified and will provide one other email relating to the reasons for the rejection. The respondent otherwise submits that any other documents sought are irrelevant to the facts in issue for this trial.

FEUTRILL J: 1 On 30 September 2024 the Court made certain case management orders by consent. Included were orders to the effect that the identification of the issues in the proceeding are to be on concise statements and that a Redfern Schedule discovery procedure will apply to the proceeding. 2 The Redfern discovery procedure contemplated: (a) each party (Requesting Party) filing and serving on the other party (Requested Party) a request for any specific document, or narrow and specific category of documents, in respect of which the Requesting Party seeks discovery in the form of a Redfern Schedule containing certain information (Request); (b) the Requested Party filing and serving on the Requesting Party a copy of the Request specifying if the Requested Party agreed to give discovery or objected to doing so on certain grounds that included lack of sufficient relevance or materiality, disproportionality or unfairness and unreasonable burden; (c) by 11 October 2024 each Requesting Party notifying the Court, by way of letter to my associate, which, if any of that party's Requests were pressed; (d) by 16 October 2024 the Court notifying the parties which, if any, of the Requested Party's objections are upheld; and (e) within 7 days of receiving the Court's rulings, each party giving non-standard discovery in accordance with an electronic exchange protocol agreed between the parties. Further, the parties agreed that the Court is not required to provide reasons for upholding or dismissing any objection. 3 On 14 October 2024 the applicant, as Requesting Party, notified the Court by way of letter to my associate that he pressed certain of the Requests he had made of the respondent in the manner contemplated in the orders. Self-evidently, that notification was not on 11 October 2024 as was required. Further, the letter purports to make written submissions in support of the applicant's contentions that the respondent's objections should be dismissed. By email to my chambers on 14 October 2024 the respondent objects to the lateness of the applicant's notice of the Requests he presses and to the Court having any regard to the written submissions the applicant made in support of his Request. 4 Although the parties have agreed that the Court is not required to provide reasons, having regard to the matters referred to in the preceding paragraph and the approach I will take to resolution of the objections, I consider short reasons for my orders and rulings are appropriate. 5 As to the objection to the lateness of the applicant's notice, as I am able to provide notice of my ruling within the time contemplated in the consent orders, I do not consider there is any material prejudice to accepting and ruling on the applicant's Requests notwithstanding the notice was not received on 11 October 2024. As to the objection to the applicant's written submissions, I accept that the Redfern discovery procedure to which the parties have agreed and as reflected in the consent orders does not contemplate the parties making written submissions separately or outside the contents of the Redfern Schedule described in the orders. Therefore, I formally record that I have disregarded the applicant's written submissions and limited my consideration to the descriptions of the justification for and objection to the Requests set out in the Redfern Schedule exchanged between the parties. 6 The Redfern Schedule exchanged between the parties includes a blank column with a space for the Court to insert a ruling on each objection to an individual request that is pressed. The consent orders contemplate the Court merely upholding or dismissing the objection. However, I have taken a more flexible approach and have made rulings that partly uphold the objection and provide for the giving of a modified version of certain of the requested categories where the category sought has evident relevance to the issues raised in the parties' concise statements. 7 The rulings and the approach I have taken to resolution of the respondent's objections has also been guided by the following matters. (1) Parties do not have a right to an order for discovery. In general, discovery will not be ordered unless the Court is satisfied that it will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible: r 20.11 and r 20.12 of the Federal Court Rules 2011 (Cth). (2) Where standard discovery is ordered, the party must give discovery of documents that are 'directly relevant' to the issues raised by the pleadings: r 20.14 of the Rules. (3) The Court may order non-standard discovery by categories of document and, in general, such an order should identify any of the standard discovery criteria that should not apply and any other criteria that should apply to the non-standard discovery: r 20.15 of the Rules. 8 It is evident from the consent orders that the parties have agreed to a form of non-standard discovery for the purposes of r 20.15 of the Rules. Having regard to the reasons for objection to giving discovery contemplated in the orders, the parties have also agreed to 'other criteria' that should apply to the non-standard discovery. These are, in part, criteria that may apply to any standard or non-standard discovery, but introduce a stronger notion of proportionality in the nature of the discovery to be given. That is reflected in the concepts of objections based on 'lack of sufficient relevance to the case or materiality to its outcome', 'disproportionality to the case or unfairness in the circumstances' and 'unreasonable burden'. These concepts are also informed by the nature of the proceeding. 9 The proceeding involves relatively confined issues of fact and orders have been made, in effect, expediting the hearing because of potential detriment to the applicant if he is ultimately entitled to reinstatement in his employment with the respondent and that reinstatement is delayed. These aspects of the proceeding necessarily inform what may be regarded as an 'unreasonable burden', 'disproportionality', 'unfairness', 'sufficiency' of relevance and 'materiality' to the outcome. Nonetheless, it is also self-evident that there is an information imbalance between the applicant, as former employee, and the respondent as, employer, regarding records relating to the applicant's employment and the reasons for and circumstances in which the decision was made to make his position redundant and terminate his employment. The approach I have taken is intended to strike a balance between proportionality and information imbalance. The consent orders and my approach reflect the overarching purpose of the civil practice and procedure provisions described in s 37M of the Federal Court of Australia Act 1976 (Cth). 10 I have also approached 'sufficiency' of relevance and 'materiality' from the perspective that discovery should be confined to documents that are 'directly relevant' (as that term is used in r 20.14) to the issues raised by the parties' concise statements. Categories of document or documents that may have 'train of enquiry' relevance are to be excluded. Further, categories of document or documents that have no evident relevance to any disputed fact or contention raised in the concise statements are also to be excluded. Matters of indirect or tangential relevance raised in affidavits filed in the proceeding are not of sufficient relevance because the parties have agreed that the issues in the proceeding are to be defined through the concise statements. 11 The principal source of relevance to the issues raised in the concise statements are the applicant's contentions in para 74 of his concise statement. That paragraph, in substance, identifies the various matters set out in other parts of the concise statement upon which the applicant relies for the final relief he seeks. That final relief, as set out in his originating application, is for injunctive relief, damages, compensation, exemplary damages and reinstatement under s 1317AE of the Corporations Act 2001 (Cth). The applicant also seeks declaratory relief to the effect that his redundancy was not genuine and the termination of his employment was not lawful. That relief is all based on allegations that the respondent engaged in conduct (detrimental conduct) that caused detriment to the applicant and when the respondent engaged in that detrimental conduct, the respondent believed or suspected that the applicant may have made or proposed to make or could have made a disclosure that qualifies for protection under Pt 9.4AAA of the Corporations Act and that belief or suspicion was a reason or part of the reason for the detrimental conduct. 12 By operation of s 1317AE(2B) of the Corporations Act, in proceedings where a person seeks an order under s 1317AE, the person seeking the order bears the onus of adducing or pointing to evidence that suggests a reasonable possibility that a person has engaged in detrimental conduct and, if that onus is discharged, the other person bears the onus of proving that the claim is not made out. That is, once the applicant crosses the evidentiary threshold for detrimental conduct, the respondent bears the onus of proving that the reason for the detrimental conduct was not because the respondent believed or suspected that the applicant may have made, proposed to make or could have made a disclosure that qualifies for protection under Pt 9.4AAA and that was the reason or part of the reason for the detrimental conduct. 13 It follows that a significant issue in the proceedings concerns the extent to which the respondent has engaged in conduct that has caused detriment to the applicant and, in particular, the respondent's state of mind about disclosures the applicant alleges he made that were subject to the protections under Pt 9.4AAA of the Corporations Act, and the reasons for the respondent's alleged detrimental conduct. The majority of the matters raised in the respondent's concise statement in response address the reasons the respondent made the applicant's position redundant and for termination of the applicant's employment, which the respondent accepts would constitute detrimental conduct. As to certain other allegations of detrimental conduct, the respondent denies it engaged in the conduct alleged and (or) puts in issue whether the conduct would constitute detrimental conduct. These matters concern allegations the applicant has made about bullying and harassment, rejection of a claim the applicant made for time in lieu and reduction in the applicant's authority. Broadly, therefore, these are the issues raised in the concise statements. In substance, documents that are directly relevant to those issues should be discovered by the parties in the proceedings. Taking into account that those issues are confined to conduct that relates specifically to the applicant and the otherwise relatively confined nature of the issues in the proceeding, it is not self-evident that discovery of documents directly relevant to those issues would be unreasonably burdensome or disproportionate notwithstanding the expedited nature of the proceeding and agreed Redfern discovery procedure. 14 I have taken all these matters into account to arrive at the conclusions reflected in my rulings in the Redfern Schedule attached to the orders made. I certify that the preceding fourteen (14) numbered paragraph are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill.