Webster v Grumpy Sailor Creative Pty Ltd

1. The applicant, Ms Webster, applies for a declaration pursuant to s 176 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFC Act) that it is in the interests of the administration of justice that the respondents give discovery, by disclosing documents that fall within the categories of documents identified in an annexure to the affidavit made by the applicant's solicitor. The annexure listed 10 categories of documents, one of which contained 24 subcategories; but Ms Webster now limits her application for discovery to the categories listed in a schedule (Schedule) that is annexed to the applicant's written submissions dated 29 July 2025. The Schedule lists 7 categories, one of which contains 13 subcategories.
2. I heard the application for discovery on the morning of 31 July 2025, at the conclusion of which I reserved my judgment, and listed the matter for judgment at 2.15 pm on 1 August 2025. At that time, I pronounced my order, noting that, although I had completed a draft of my reasons for pronouncing the order, I required further time to bring the draft into publishable form. These reasons for judgment are the final form of the draft reasons for judgment on the basis of which I pronounced my order on 1 August 2025. For ease of expression, I have not altered the draft to reflect the fact that these reasons for judgment will be published after I pronounce my order.

1. The application for discovery is made in a proceeding in which Ms Webster alleges the first respondent (GSC) took adverse action against her on five occasions, the penultimate occasion being on 30 November 2023, when GSC informed Ms Webster of an upcoming performance review, and the last occasion being on 10 January 2024, when GSC terminated Ms Webster's employment. Ms Webster alleges GSC took the adverse action because she had exercised workplace rights within the meaning of s 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) (FW Act), and in so doing, GSC contravened s 340(1) of the FW Act. Ms Webster also alleges that the second and third respondents were involved in GSC's contraventions of s 340(1).
2. In their response, in addition to putting a number of Ms Webster's allegations in issue, the respondents allege, among other things, that the substantive and operative reasons for GSC's dismissal of Ms Webster's employment were that :

(a) GSC lost trust and confidence in Ms Webster to be professional and act in the best interests of her employer;

(b) GSC had received negative feedback about Ms Webster's conduct and performance from external stakeholders and other employees;

(c) Ms Webster disclosed planning and budget issues faced by GSC to a client without authorisation from GSC;

(d) Ms Webster had spoken to external stakeholders and other employees about the respondents in a disparaging manner.

1. On 11 December 2024 directions were made for the filing of evidence. Ms Webster filer her affidavit in chief on 28 February 2025; and on 11 April 2025 the respondents filed affidavits made by each of the second and third respondents, and by Ms Rata, the executive producer of GSC. Ms Webster filed her evidence in reply on 26 May 2025. On 4 June 2025, Judge Doust, to whom the matter has been docketed, set the matter down for hearing for three days commencing on 15 September 2025; and her Honour made a number of pretrial directions.

1. Ms Webster, in her counsel's written submissions, classifies the categories of documents for which she seeks discovery into the following groups:

(a) Category 1, being documents recording the contents of thirteen meetings or conversations that are referred to in the affidavits of the third respondent, Ms Herbert, or of the second respondent, Mr Boyce.

(b) Categories 2, 3, 4 and 6, being documents recording complaints and feedback regarding Ms Webster to which Mr Boyce, Ms Herbert, and Ms Rata refer in their affidavits.

(c) Categories 7 and 10, which identify particular documents. (Category 10 is no longer an issue.)

1. In her counsel's written submissions, Ms Webster submits that the documents that fall within the categories listed in the Schedule are directly relevant to the respondents' positive case as to the actual or real reason for placing Ms Webster on a performance improvement plan, and subsequently dismissing her from her employment. Ms Webster further submits that the categories are confined insofar as they reflect matters the respondents expressly raised in their evidence. Ms Webster relied on the judgment of Judge Gostencnik in Fraser v State of Victoria (Secretary, Department of Education), including the following passage:[1]

I also consider that the applicants' request for discovery is directed to a narrow and targeted set of documents which are directly relevant to the facts in issue - the reasons for the adverse action alleged. Discovery of such documents will likely be probative of those facts. The availability of such documents will also allow the applicants to better understand the available documentary evidence about the respondent's reasons, allowing it to better assess their case and prospects, and more likely contribute not only to the preparation for mediation but also by enhancing the prospect of mediation being successful where parties are on an equal footing as to their knowledge about what the documents say about the respondent's reasons. Even if mediation fails, the issues in dispute may be narrowed, which would also facilitate the fair and expeditious conduct of the proceeding.

1. In their counsel's written submissions, the respondents submit that discovery should not be permitted because Ms Webster delayed in making her application; and to permit discovery at this stage is likely to disrupt the orderly preparation of the matter for hearing, and imperil the hearing date that has been set. The respondents further submit that the documents Ms Webster seeks the respondents discover are too broad, and complying with a discovery order in relation to those orders would be onerous. The respondents rely on the affidavit of their solicitor who deposes to the tasks the respondents would be required to perform if they were ordered to give discovery. The respondents' solicitor also deposes to particular difficulties Ms Herbet will have if she were subjected to the discovery obligations Ms Webster seeks.

1. This Court has power under s 176(1) of the FCFC Act to allow discovery; but s 176(2) of that Act provides the Court may not do so unless "the Court or a Judge declares that it is appropriate, in the interests of the administration of justice, to allow . . . discovery". The determination of that question turns, in the first instance, on the form of discovery the applicant for discovery seeks. If, as is the case with the application before me, discovery is sought in relation to documents falling within the descriptions of categories of documents, the first question the Court must address is whether the documents, if they exist, are "directly relevant to the issues raised by the pleadings or in the affidavits",[2] in the sense that the documents sought to be discovered will tend "to prove or disprove the allegation[s] in issue".[3]
2. Once the Court is satisfied the documents sought to be discovered are directly relevant and relate to an issue in the proceeding, the next question is whether there are means other than discovery by which the documents may be disclosed and produced and, if so, whether they would be more appropriate. One such means is the issuing of notices to produce, either in advance of a hearing, or at the beginning of, or during the hearing itself. Where, as again is the case before me, discovery is sought of documents that, save for one exception, have been described with sufficient precision as to make it appropriate that they be produced by means of a notice to produce, it would ordinarily be the case that it would be more appropriate for the documents to be sought to be produced by means of a notice to produce, rather than by an order for discovery, which would require the preparation of an affidavit of documents.

1. The first question, therefore, is whether documents that fall within the categories of documents described in the Schedule are directly relevant to any issues raised by the pleadings or in the affidavits in the proceeding; that is, whether the documents will tend "to prove or disprove [any] allegation[s] in issue".[4]

1. I am not satisfied that any of the documents in category 1 are directly relevant to any issue. At most, they might potentially be relevant to the credibility of the accounts the deponents give of the conversations or meetings. This will be the case if, first, documents falling within the categories exist; and, second, the documents record information that is not, or may not necessarily be, consistent with the account of the conversation or meeting the deponent has given. Any such document, however, would not tend to prove or disprove any issue in the proceeding; at most it may afford a basis for not accepting the evidence of the deponent to the extent his or her evidence relates to the conversation or meeting the document records.
2. It is the case that, in certain circumstances, it would be a legitimate forensic purpose to seek the production of documents that are relevant only to credit;[5] but such documents should be sought by means of a notice to produce or subpoena. It is not open to me to consider on this application, however, because the parties have not made any submissions about it, whether it would be a legitimate forensic purpose to seek the production of the documents in category 1 by means of a notice to produce or subpoena.
3. Even if, contrary to what I have held, the category 1 documents are relevant to any issue raised by the pleadings or affidavits, it would be less costly for the documents to be produced by the mechanism of a notice to produce or subpoena, rather than by having the documents identified in a list of documents, and the list being verified by the respondents.
4. It may be that Ms Webster has sought the production of the Category 1 documents because of a literal reading of r 16.16 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules), which provides that a "party may, by notice in writing, require another party to produce, at the hearing of the proceeding, a specified document that is in the possession, custody or control of the other party"; and also because of the judgment of Judge Baird in Lift Shop Pty Ltd v Next Level Elevators Pty Ltd (No 2).[6] In Doherty v Prospa Advance Pty Ltd, however, I held that this Court has ample powers, in addition to the power conferred by r 16.16 of the GFL Rules, to order the production of documents.[7]

1. Category 2 calls for documents that record the complaints Mr Boyce says he received about Ms Webster's behaviour, as set out in paragraph 113 of his affidavit; category 4 calls for documents that records employee feedback about Ms Webster that Ms Herbert says she received, as set out at paragraph 60 of her affidavit; and category 6 calls for documents that record staff members' feedback about Ms Webster that Ms Rata says she received, as set out in paragraph 71 of her affidavit. Documents that fall within these categories are directly relevant to the affirmative defences on which the respondents rely.
2. That does not mean, however, that discovery is the appropriate means by which Ms Webster should seek production of those documents. The more convenient course would be to issue a notice to produce calling for the production of such documents, rather than requiring the documents to be produced after the respondents list the documents in an affidavit of discovery. (I note, however, that Ms Herbert has purported to identify the documents that record the feedback she says she received.)
3. Category 3 requires separate consideration; it calls for all documents recording the feedback obtained for Ms Webster's performance reviews from September 2021 to January 2022, and from September 2022 to January 2023. The documents called by category 3 appear to overlap with categories 2, 4, and 6. Category 3, however, is not limited to the feedback that each of Ms Herbert, Mr Boyce, or Ms Rota say they received. For that reason, category 6 would appear to include documents that are not relevant to any issue in the proceeding. For that reason, discovery of that category of documents would not be appropriate.

1. Category 7 calls for the production of the "entire email chain" in relation to an email that is annexed to Ms Rata's affidavit. I am not satisfied that that document forms part of an email chain; and, even if it did form part of an email chain, there is nothing to reveal what relevance, if any, the emails that form part of the email chain have to any issue in the proceeding. In any event, assuming it were relevant, discovery would not be the appropriate means by which Ms Webster should seek production of the documents that comprise category 7.

1. The application for a declaration under s 176 of the FCFC Act should be dismissed.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

[1] Fraser v State of Victoria (Secretary, Department of Education) [2025] FedCFamC2G 697, at [35].

[2] Hartnett Legal Services Pty Ltd v Ballantyne [2016] FCA 1116, at [34] (See Australian Building & Construction Commissioner v CFMEU & Ors (No.5) [2018] FCCA 1100, at [17]).

[3] Robson v Reb Engineering Pty Ltd [1997] 2 Qd R 102, at page 105 (See Australian Building & Construction Commissioner v CFMEU & Ors (No.5) [2018] FCCA 1100, at [23]).

[4] Robson v Reb Engineering Pty Ltd [1997] 2 Qd R 102, at page 105 (See Australian Building & Construction Commissioner v CFMEU & Ors (No.5) [2018] FCCA 1100, at [23]).

[5] See the discussion by Pembroke J in Thomas & Ors v SMP (International) & Ors (No 2) [2010] NSWSC 870, at [19] and [20].

[6] Lift Shop Pty Ltd v Next Level Elevators Pty Ltd (No 2) [2023] FedCFamC2G 268.

[7] Doherty v Prospa Advance Pty Ltd [2024] FedCFamC2G 391, at [18], and [19].