FEDERAL COURT OF AUSTRALIA

Mandic v Phillis [2005] FCA 1279

PRACTICE AND PROCEDURE – application for enlargement of time to file notice of appeal – no ground of appeal identified in application – applicant issues subpoena to obtain further evidence to support application – documents required for production subject to claims of confidentiality – application to have subpoena set aside – evidence sought to overturn credibility findings of primary judge – whether subpoena amounts to fishing and abuse of process – whether court on appeal from Federal Magistrate should allow further evidence

HUMAN RIGHTS – Sex Discrimination Act 1984 (Cth) – sexual harassment – harassment of one employee by another employee established by Federal Magistrate

Federal Court Act 1976 (Cth) s 27

Family Law Act 1975 (Cth)

Human Rights and Equal Opportunity Commission Act 1986 (Cth)

Sex Discrimination Act 1984 (Cth)

Trade Practices Act 1974 (Cth)

Federal Court Rules 1976 (Cth) O 27 r 4, O 52 r 15

Companies (New South Wales) Code

Supreme Court Rules 1970 (NSW) Pt 37 r 8

Saltman Engineering Co Ltd v Campbell Engineering Co Ltd [1948] 65 RPC 203 cited

Science Research Council v Nasse [1980] AC 1028 discussed

Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435 referred to

National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 referred to

Compsyd Pty Ltd v Streamline Travel Service Pty Ltd (1987) 10 NSWLR 648 discussed

Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 applied

Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 referred to

Hamilton v Oades (1989) 166 CLR 486 referred to

Trade Practices Commission v Kimberly Homes Pty Ltd (1989) 217 ALR 110 cited

Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 588 cited

Cosco Holdings Pty Ltd v Commissioner for Taxation [1997] FCA 1504 referred to

R v Barton [1981] 2 NSWLR 414 cited

Commissioner of Railways v Small (1938) 38 SR (NSW) 564 referred to

Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 cited

Bailey v Beagle Management Pty Ltd (2001) 105 FCR 136 discussed

Grant v Downs (1976) 135 CLR 674 cited

Caltex Refining Co Pty Limited v The Amalgamated Metal Workers’ Union (Federal Court of Australia, 6 December 1990, unreported) referred to

Treasurer of the Commonwealth of Australia v Canwest Global Communications Corp (Federal Court of Australia, Beaumont, Burchett and Emmett JJ, 30 June 1997, unreported) cited

Spatialinfo Pty Ltd v Telstra Corporation Ltd [2005] FCA 455 referred to

WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 discussed

Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350 referred to

Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34 at 39 cited

Sankey v Whitlam (1978) 142 CLR 1 cited

Alister v The Queen (1983) 154 CLR 404 cited

Santos Ltd v Pipelines Authority of South Australia (Supreme Court of South Australia, Millhouse, Perry and Debelle JJ, 27 May 1996, unreported) referred to

Jess v Scott (1986) 12 FCR 187 referred to

Gallo v Dawson (No 2) (1992) 109 ALR 319 applied

Guss v Johnson [2000] FCA 1455 applied

CDJ v VAJ (1998) 197 CLR 172 applied

Wilson v Official Trustee in Bankruptcy [2000] FCA 304 discussed

MANDIC v PHILLIS

NSD 910 of 2005

CONTI J

13 SEPTEMBER 2005

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for an enlargement of time within which to file and serve a notice of appeal be dismissed.

2.                  The applicant pay the costs of the respondent of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant (‘Mr Mandic’) seeks an enlargement of time pursuant to O 52 r 15(2) of the Federal Court Rules within which to file and serve notice of appeal from the judgment of Federal Magistrate Raphael given on 29 March 2005. His Honour held that on three occasions in July 2003 Mr Mandic had breached s 28B(2) of the Sex Discrimination Act 1984 (Cth), which renders it unlawful for an employee to sexually harass a fellow employee. His Honour ordered that Mr Mandic pay the respondent (‘Ms Phillis’) $4000 in damages, as well as her costs of the proceedings below.

2                     Mr Mandic was represented by a firm of solicitors and counsel in the proceedings before the Federal Magistrate; however for all but the final day of the hearing of this application, Mr Mandic was unrepresented. On 29 August 2005, Mr Farrar of counsel received instructions to appear for Mr Mandic, and the Court had the assistance of his thoughtful and frank submissions at the hearing on 30 August 2005. The application was originally listed for hearing on 29 July 2005, however owing to the fact that Mr Mandic was at that stage a self-represented litigant, I afforded him additional time in which to prepare evidence and submissions in support of his application. On 17 August 2005, Mr Mandic filed an affidavit which sought to explain why he had failed to lodge an appeal from the Federal Magistrate’s judgment until 6 June 2005. On 18 August 2005 I stood the application over for a final hearing on 30 August 2005.

3                     Mr Mandic has lived in Australia ever since he and his wife were granted protection visas in the mid 1990s. English is not his native language and an interpreter assisted Mr Mandic on each occasion, other than at the final hearing when Mr Farrar represented him. Ever since his arrival in Australia, Mr Mandic has lived in Wollongong. In his affidavit filed on 17 August 2005, Mr Mandic described the events leading up to the delivery of judgment by the Federal Magistrate and the steps which Mr Mandic subsequently took to appeal from the same.

4                     Mr Mandic stated that on or around 4 or 5 April 2005 (approximately one week after the Federal Magistrate delivered his reasons for judgment) he attended the offices of the firm of solicitors who represented him in the Federal Magistrates Court. Thereupon the solicitor responsible for Mr Mandic’s case was said to have informed him that he had lost his case and was required to pay $4000 in damages. Mr Mandic attested to having then requested a copy of the Federal Magistrate’s reasons for judgment, which he did not receive until sometime between 20 and 25 April 2005. By this time, the 21 day period for lodging an appeal from the Federal Magistrate had already passed.

5                     Mr Mandic next stated that he then telephoned the Wollongong office of Legal Aid. His affidavit lacks specificity as to relevant dates from this point onwards. According to Mr Mandic, he received from Legal Aid a brochure that informed him that had he desired to appeal, he would have had to have done so within 21 days of the decision. Mr Mandic stated that he believed that he was by then already out of time, and that thereafter he wrote to the Legal Services Commissioner and complained about the decision and the way his case had been handled. It is not clear from Mr Mandic’s evidence whether he complained about his former solicitors or the office of Legal Aid, or both. In any event, Mr Mandic recorded a telephone discussion with an employee of the Legal Services Commissioner in which he was informed that he was appealing to the wrong place and was referred to the Federal Court registry. Mr Mandic was mailed the appropriate forms required to initiate an application for an order under O 52 r 15(2) by the registry and, with the help of his wife, he filled out those forms, which he then mailed for filing. Due to the lack of specificity of dates, it is difficult to accurately account for each of the passing times of his delay in bringing his present application, particularly during the month of May. What is clear however is that Mr Mandic’s decision to appeal from his Honour’s judgment without the assistance of a legally trained representative contributed to the delay. I accept that the challenges facing self-represented litigants, particularly those who do not speak English, may be daunting in many circumstances. The respondent did not seek to cross-examine Mr Mandic on that affidavit. However before determining whether I should grant Mr Mandic the enlargement of time he requires, it is necessary for me to consider the prospects of success of the appeal he would seek to bring. The determination of that question is a matter of some complexity however, owing to the unusual course that the prosecution of this application has taken.

6                     Filed with Mr Mandic’s application for an enlargement of time was a draft notice of appeal and an affidavit. As might be expected of a self-represented litigant lacking legal training, the draft notice of appeal does not disclose any legally viable grounds of appeal. Read literally, it is in the following terms (the references to Mr Sinclair are to the former employer of the parties to the proceedings):

‘1. So many documents sent in court judge didn’t include in his decision.

Order Sought

Review all documents, affidavits and witnessing [sic] of both sides, especially medical certificate dated one year later after all stated allegations by Ms Joanne Phillis against appellant.’

7                     The affidavit filed in support provides relevantly (also read literally):

‘1. All problem is Mr Evan Sinclair as I said at beginning because of no paid government tax for 3 years, no paid superannuation, no register me with taxation office and I refused support his criminal. He organised Ms Phillis (his new girlfriend) to stop me to talk about his criminal activity by making sexual harassment allegations against me.

2. Her witnessing was showing that she is connected to Mr Sinclair and of course very will to do everything for him.

3. On 20/2/04 after industrial commission court Mr Sinclair closed Redgum Engineering because court made decision in my favour finding out Mr Sinclair’s no proper payments. Ms Phillis showed her frustrations in her new made up affidavit.

4. I putting in question her medical certificate dated one year after made of allegations (in the time of court culmination). How is possible that Ms Phillis was unfit for work two months and in the same time working for Sinnec (owner Mr Sinclair) working for Telstra and attending six months security course.

5. All my documents are showing whats happen in Redgum Engineering and that Mr Sinclair obviously used his girlfriend Ms Phillis to protect his mess. Mr Sinclair didn’t pay tax for 3 years, child care support and this Mr Sinclair story costs around $1,000,000.00. Where is future? Where is bottom line?’

8                     The Federal Magistrate found that the abovementioned firm of Redgum Engineering was a small engineering firm owned and operated by the Mr Evan Sinclair referred to in Mr Mandic’s affidavit. Mr Mandic and Ms Phillis were both employed by Redgum Engineering and it was at that firm’s workshop that the sexual harassment was found by the Federal Magistrate to have taken place. The thrust of Mr Mandic’s affidavit would appear to be that by reason of certain complaints that he had made about Mr Sinclair’s alleged omissions to comply with either revenue or industrial laws, Mr Sinclair had arranged for Ms Phillis to in turn initiate a series of complaints about Mr Mandic involving allegations of sexual harassment, and culminating in the issue of an apprehended violence order against Mr Mandic by the Wollongong Local Court, the exhaustion of the complaints process of the Human Rights and Equal Opportunity Commission and the present litigation. A similar submission was apparently made by Mr Mandic in the proceedings before the Federal Magistrates Court, his Honour referring to it in these terms (at [7] of his reasons for judgment):

‘At the same time that these matters were going on, including the alleged sexual harassment, [Mr Mandic] was in dispute with Redgum [Engineering] over entitlements. He claimed that these had not been paid and he called the union in to assist him in recovering the underpayments. It was [Mr Mandic’s] personal belief that [Ms Phillis] had made the allegations of sexual harassment against him as part of her employer’s response to his legitimate claims to be properly remunerated. The evidence reveals that his claims against Redgum were perfectly justified and that an award from the Industrial Commission NSW had to be made in his favour. [Mr Mandic] claims that [Ms Phillis] has persecuted him on behalf of her former employer by bringing the AVO proceedings, the HREOC proceedings and the application to this court. These claims were not made by [Mr Mandic’s] counsel who indicated that he was not in a position to establish them through evidence.’

His Honour summarised his conclusion about those claims at [13] of his reasons for judgment as follows:

‘Even though I accept that Mr Mandic had a genuine claim against Redgum [Engineering], and that in all probability Mr Sinclair was not pleased that he was making it, I cannot accept that the existence of these claims had any bearing on the conduct of [Ms Phillis].’

9                     At the outset of the hearing of the proceedings in this Court on 30 August 2005, counsel for Mr Mandic conceded, with commendable candour, that on the face of the Federal Magistrate’s reasons for judgment, to which he had given due consideration, there existed no viable grounds for appeal. Counsel nevertheless pressed Mr Mandic’s application for an enlargement of the time within which to file a notice of appeal, on the basis that were the Federal Court on appeal to admit further evidence not adduced before the primary judge, that course could well lead to a different result to that reached below by the Federal Magistrate.

The RailCorp subpoena and the application to have it set aside

10                  On 19 August 2005, approximately one and a half weeks before the final hearing, Mr Mandic filed an affidavit in support of an application for leave to issue a subpoena to RailCorp (‘the RailCorp subpoena’). According to that affidavit, RailCorp is Ms Phillis’ current employer, that employment having apparently commenced on 24 January 2005. Annexed to Mr Mandic’s 19 August 2005 affidavit were two affidavits made by Ms Phillis during the proceedings in the Federal Magistrates Court. The first affidavit was sworn by her on 18 June 2004 and the second on 31 January 2005. The documents sought by the subpoena were defined as follows in the schedule to the subpoena:

‘All pre-employment psychological assessments

All medical records submitted to RailCorp in regard to JOANNE PHILLIS psychological and physical health

All records of medications administered or prescribed

All reports, correspondence and memorandum relating to JOANNE PHILLIS’

11                  At the beginning of the final hearing on 30 August 2005 in this Court, counsel for Mr Mandic called upon the RailCorp subpoena for response. His rationale for so doing was that the information garnered from RailCorp about the results of Ms Phillis’ psychological tests undertaken prior to commencing employment with RailCorp might conceivably provide evidence, not adduced before the Federal Magistrate, that if admitted by leave of the Court on the appeal pursuant to s 27 of the Federal Court Act 1976 (Cth), might justify a departure from the factual findings made by the Federal Magistrate, and in particular in respect to the relative credibility of Ms Phillis vis-à-vis Mr Mandic.

12                  Before examining the further submissions on behalf of Mr Mandic, and also of Ms Phillis and the affected third parties, it is necessary to record the material factual findings of the Federal Magistrate.

13                  As I have foreshadowed, the dispute before Raphael FM arose from allegations made by Ms Phillis against Mr Mandic about various conduct that he was said to have engaged in over several days in July 2003 whilst they were both working together at the Redgum Engineering workshop. There was no corroborative evidence of either party’s account of the events complained of, and the primary judge was required to determine which of the opposing accounts he should accept. It is apparent from [10] to [14] of his Honour’s reasons for judgment, which I have reproduced below, that it was Ms Phillis’ evidence which he preferred, in all material respects:

’10. The applicant [Ms Phillis] gave her evidence in a clear and unemotional manner. The respondent’s [Mr Mandic’s] counsel attempted to point out the small inconsistencies in her evidence, but to my mind these tended to give her statements veracity. She told the Court that she had not read her affidavit since last June. She said that she had come to the court “to tell the truth”. I accept this statement as her intention. I see nothing sinister in her not having read her affidavit. The applicant appeared confident in her recollection. The integers of her complaint did not really change. There was the grabbing of her arms (sic) or arms, the accusation that Mr Mandic twice tried to dance with her; his request to look at her “padlock” (her body piercing) and the incident with the tool box. There may have been more than one version of these incidents but the variations were in detail and not in substance. The questions put to the applicant to establish that the incident with the tool box was innocent and that she could have just walked away did not convince me. I was satisfied from the responses that what occurred had more than an innocent explanation. The applicant said that she would “probably have sworn at Mr Mandic”. I am not sure that that is entirely consistent with her assertion in affidavit that she did not know how to respond and that she had frozen. I think this is the more probable reaction. The cross-examination revealed that the applicant was not sure whether the box was in front or behind her but what is important is that there was an incident in which Mr Mandic pushed the box between her legs. I am satisfied that that occurred.

11. I also accept the applicant’s evidence that she did not show the respondent her navel. She surmised that he had seen her piercing when she had stretched up to reach things. Her shirt was out of her jeans. This seems to be a reasonable explanation and it was to a great extent confirmed by Mr Mandic when he gave his own evidence. He admitted that he had seen her body piercing but denied that he had ever asked to “look at her padlock”.

12. The applicant explained her failure to include a reference to the respondent grabbing her arm on 18 July in her complaint to HREOC as not understanding exactly what was required by them at that time. She thought that she could give more details later. The complaint is less detailed than subsequent statements but I will not go so far as to accept that her later recollections were deliberate exaggerations.

13. The respondent denied absolutely the complaints that he grabbed the applicant’s arm, that he asked to “look at her padlock”, that he asked her to dance with him, that he asked her whether he could eat her banana and pushing the tool box between her legs. He offered no innocent explanation for any of these matters except the tool box incident. So far as he was concerned they just did not occur. In regard to the tool box incident he did not believe that that occurred but said that if it had it was purely innocent and that he had merely pushed the tool box towards her out of frustration at her questions about the tools. I prefer the applicant’s evidence. In considering the respondent’s evidence and the manner in which he answered questions one must be culturally sensitive. Defending a claim of this nature is not easy. It is particularly hard if you do not speak English as your native language, responses may tend to sound aggressive. These things must be taken into account in weighing up testimony where, as here, it is diametrically opposed and there is no corroborating evidence. Having regarded the parties in the witness box and listening carefully to the evidence of the applicant I am of the view that her complaints repeated before the local court Magistrate and HREOC were established on the balance of probabilities bearing in mind the requirement to be comfortably satisfied of those matters in accordance with the dicta in Briginshaw v Briginshaw (1938) 60 CLR 336. Even though I accept that Mr Mandic had a genuine claim against Redgum, and that in all probability Mr Sinclair was not pleased that he was making it, I cannot accept that the existence of these claims had any bearing on the conduct of the applicant.

14. I am also satisfied that the actions of the respondent in asking to look at the applicant’s “padlock”, in seeking to dance with her, in seeking to eat her banana, lifting up her shirt, in grabbing at her arm and pushing the toolbox between her legs constituted unwelcome conduct of a sexual nature which a reasonable person having regard to all the circumstances would have anticipated would offend and possible [sic] intimidate the applicant. The applicant was cross examined as to whether or not the incidents which she described were a dream or that if they happened at all they did not amount to much. The response was that she believed that the incidents were a huge invasion of her personal space and I accept this.’

14                  Implicit in those findings, so counsel for Mr Mandic submitted, was the Federal Magistrate’s finding that Ms Phillis was a more credible witness than Mr Mandic. Counsel further submitted however that were information obtained from RailCorp that challenged the credibility of Ms Phillis, that would provide a sufficient basis for the grant of leave to enlarge the time in which Mr Mandic could file a notice of appeal, since such evidence could be adduced on appeal. Whether there could be any such sufficient basis is presently however no more than speculative in any objective sense.

15                  Also present at the final hearing on 30 August 2005 was Mr Tyson of counsel, who was instructed to appear on behalf of two non-parties, being RailCorp and Byrne Associates Pty Ltd trading as Australian Institute of Forensic Psychology (‘the Institute’). RailCorp was of course the party served with Mr Mandic’s subpoena. Mr Tyson produced a bundle of documents in part answer to Mr Mandic’s subpoena, which were received by the Court and immediately inspected by counsel for Mr Mandic. However those documents being seen to be of no apparent relevance to Mr Mandic’s application, his counsel returned those documents to the Court which were in turn released back to RailCorp. In respect of a second bundle of documents however, Mr Tyson sought leave to file a notice of motion on behalf of RailCorp and the Institute, which sought an order pursuant to O 27 r 4(1) of the rules for the setting aside, in part, of the RailCorp subpoena. Counsel for RailCorp and the Institute also filed and read the affidavit of Dr Kenneth Byrne sworn 30 August 2005 in support of that motion. Further submissions in support of RailCorp and the Institute’s motion were also provided by counsel for Ms Phillis.

16                  According to Dr Byrne’s affidavit, the Institute provides psychological screening services to RailCorp pursuant to a Memorandum of Understanding between the Institute and the State Rail Authority of New South Wales (‘the SRA’) dated July 2003, for instance for the position of a transit officer or security guard, being positions which Ms Phillis took up at RailCorp. The Institute additionally provides psychological screening services (‘psychological profiling’) for profit to numerous public safety organisations and government departments apart from RailCorp. Clause 6 of the Memorandum of Understanding between the Institute and the SRA is in the following terms:

‘State Rail Authority of New South Wales agrees to keep confidential all information about the Australian Institute of Forensic Psychology selection methodology, including tests which are used, samples of test reports, all interview methodology and pricing structure. This means that such information will be available only to those in the organisation who will need to have this information and will not be provided to anyone outside the organisation without the agreement of the Australian Institute of Forensic Psychology.’

17                  Although it was not expressly so attested, it can be inferred from Dr Byrne’s affidavit that Ms Phillis was screened by the Institute after she applied for a position within RailCorp. The screening process generally involves the applicant answering a number of questions set out in a test booklet on a separate answer sheet. That answer sheet is returned to the Institute for analysis and the Institute prepares a confidential report that the Institute provides to RailCorp (or to whichever hiring organisation is employing the screening services of the Institute in respect of the given applicant). That report contains the Institute’s recommendations as to the suitability of the particular applicant for the position concerned. I will refer variously to these documents as the ‘psychological report’, or ‘psychological profile’, those expressions having been used interchangeably by counsel during the hearing.

18                  Prior to undertaking the screening test, applicants must agree that the information compiled from the psychological test will be made available to the relevant organisation with which they are seeking employment, in Ms Phillis’ case, of course being RailCorp. The applicant is also required specifically to agree that he or she will not receive a copy of the Institute’s report, and thus to sign a release which provides that he or she is not entitled to obtain copies of any of the testing material or of the report. Those observations are made generally in Dr Byrne’s affidavit, and thus without reference to any of the documentation either generally provided to each applicant, or to that presumably provided to Ms Phillis. Counsel for Mr Mandic did not seek to cross-examine Dr Byrne on the contents of his affidavit or otherwise, and the same were hence accepted into evidence in their entirety.

19                  The psychological profiling process undertaken by the Institute is said to be the product of twenty years of continual refinement, involving the expenditure of considerable effort and financial resources by the Institute. That process reflects the combination by the Institute of different psychological tests, opinion surveys and personnel questionnaires from around the world for each role that is the subject of an application. Apart from this ‘mixing and matching’ of various tests, the Institute has developed a software programme that interprets the answers given by applicants and generates the confidential report for use by the hiring organisation. It was asserted that for all of the aforementioned reasons, and by reason of the fact that the Institute’s competitors do not have any detailed knowledge of the process, the process contains confidential information and trade secrets of inestimable value to the Institute. The potential for loss of, or damage to, what therefore constitutes the Institute’s operational secrets, as a result of disclosure of the report compiled by the Institute about Ms Phillis, provided one potential basis for setting aside the relevant part of the RailCorp subpoena, according to its counsel’s submission. Counsel for the Institute referred in that context to the following dictum of Lord Greene MR appearing in his reasons for judgment in Saltman Engineering Co Ltd v Campbell Engineering Co Ltd [1948] 65 RPC 203 at 215:

‘what makes it confidential is the fact that the maker of the documents has used his brains and thus produced a result which can only be produced by someone who goes through the same process.’

20                  The Institute submitted that cl 6 of the Memorandum of Understanding made it clear that the Institute provided RailCorp with access to its psychological screening processes on a confidential basis and in circumstances imparting an obligation of confidence on RailCorp. Counsel also referred to the description in Dr Byrne’s affidavit of the training procedures for RailCorp staff provided by the Institute in dealing with the results of the Institute’s psychological processes.

21                  There were two further reasons put forward by the Institute for the preservation of the confidentiality of the psychological report of Ms Phillis, which I will now summarise and address.

22                  The first was that since the tests have a public safety purpose in that they are used to ensure that persons selected in positions of authority (such as persons chosen to work as armed guards on public transport) are of sound psychological condition, the publication of Ms Phillis’ test, and the concomitant insight into the otherwise confidential testing procedures adopted by the Institute, would undermine that public safety purpose. This was said to occur because if those testing procedures became publicised, persons applying for relevant positions would be able to ‘beat the test’. Dr Byrne recounted in his affidavit in general terms instances of persons attempting to obtain information about the tests so as to enhance their opportunities for employment. In response to this submission, counsel for Mr Mandic contended that at least some of the tests employed by the Institute would likely be ‘objective’, in so far as a person taking them cannot cynically distort the result of that test by providing staged answers. Counsel frankly acknowledged however that he made that submission in the absence of any evidence and obviously without having had the benefit of observing the format of the tests.

23                  The second was that without divulging any detail about the results of Ms Phillis’ test and the Institute’s reporting thereof, Dr Byrne attested that he was ‘also concerned about the likely damage that will be suffered by Ms Phillis if she gains access to a copy of the [Institute’s] report without guidance from a qualified psychologist.’

24                  In the light of the contended implications to public safety, to Ms Phillis’ personal and emotional safety and to the commercial damage that would be suffered by the Institute were Ms Phillis’ psychological profile and report to be released, the Institute submitted that the Court ought to exercise its discretion to deny Mr Mandic access to the documentation produced as a result of the Court’s procedures, thereby citing Science Research Council v Nasse [1980] AC 1028. The Institute also emphasised the apparent absence of any viable forensic purpose for the release of this material to Mr Mandic in the context of an application for an enlargement of time in which to lodge a notice of appeal.

25                  Being in a much stronger position than either the Institute, or RailCorp, to ascertain the relevance of the documents subject to the disputed portion of the RailCorp subpoena, counsel for Ms Phillis submitted that the same should be set aside on the ground that it amounted to a ‘fishing’ expedition. Counsel emphasised that the evidence that Mr Mandic would seek leave to adduce on appeal, being the results of psychological profiling taken of Ms Phillis by the Institute, is material which inferentially is not known to Mr Mandic, and for that reason the subpoena requiring its production is an impermissible ‘fishing’ attempt. Counsel observed that a psychological profile, by its very nature, is opinion evidence and not of itself determinative of the existence of any particular event or personality characteristic. Counsel seemingly also submitted that the material itself would be inadmissible without the opportunity of examination of the maker of the psychological profile, something which was by no means assured. I observe however that the admissibility of material produced on subpoena is of course not a relevant consideration in determining whether or not that subpoena should be set aside on the ground of abuse of the court’s process.

26                  Moreover counsel for Ms Phillis pointed to the absence of any evidence from Mr Mandic as to why the material now sought by subpoena was not obtained by his legal representatives in the proceedings before the federal magistrate. Failure to provide evidence explanatory of that failure, so the submission ran, tended to render futile any attempt to obtain the Court’s leave to adduce further evidence on appeal. Finally, counsel for Ms Phillis submitted that Mr Mandic failed to show how the reception of the results of Ms Phillis’ psychological profiling into evidence at trial would have produced ‘an opposite result’, referring thereby to the test laid down by Dixon CJ in Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435 at 444.

27                  I will address counsel’s submissions on further evidence shortly. First, I will consider further the general principles for the setting aside of subpoenas duces tecum.

General principles concerning the setting aside of subpoenas duces tecum

28                  The first question that therefore specifically arises for resolution is whether or not RailCorp and the Institute may succeed on their application to set aside the subpoena in part.

29                  In National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 at 381, Moffit P recognised three distinct steps in the procedure for production of documents pursuant to a subpoena duces tecum:

‘The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise. It is the third step which alone provides material upon which ultimate decision in the case rests. In these three steps the stranger and the parties have different rights, and the function of the judge differs.’

30                  I am presently concerned with the first of those steps, RailCorp not having produced to the Court those documents said to be referrable to the disputed portion of the subpoena.

31                  Order 27 r 4(1) of the Federal Court Rules, pursuant to which the Institute and RailCorp made their application,relevantly provides:

‘[t]he Court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, or grant any other relief in respect of it.’

32                  Counsel for Mr Mandic did not appear to challenge the standing of the Institute to make an application under O 27 r 4(1) for orders setting aside, in part, the subpoena served on RailCorp. In light of the Institute’s evidence that the specific documents subject to the subpoena contain trade secrets and commercially sensitive information, the release of which would hinder certain public interests, there does not appear to be any doubt that the Institute has a sufficient interest, within the meaning of that expression in O 27 r 4(1), to seek the relevant orders presently being sought. It was not strictly necessary therefore for RailCorp to also seek the relief sought, however no doubt those representing RailCorp and the Institute formed the view that out of an abundance of caution both entities ought to make the application. Order 27 r 4(1) is in the same terms as the former Pt 37 r 8 of the Supreme Court Rules 1970 (NSW). The latter provision was considered by McClelland J in Compsyd Pty Ltd v Streamline Travel Service Pty Ltd (1987) 10 NSWLR 648, where his Honour was required to consider whether the defendants to the proceedings had adequate standing under the rule to seek orders setting aside various subpoenas issued by the plaintiff to third parties who were strangers to the litigation. At 649-50 of his reasons for judgment, his Honour said the following about the operation of Pt 37 r 8:

‘That rule, by its terms, does not confine standing to make such an application to the person to whom the subpoena is directed; all that is required is that the moving party have a sufficient interest. On the other hand, I do not think that the mere fact that the moving party is a party to the proceedings necessarily establishes a sufficient interest in having the subpoena set aside. It would all depend on what interest existed, in fact, in the moving party in relation to the documents which the subpoena required to be produced. If, for instance, the documents were documents in which the moving party had a proprietary interest or if the documents contained information which the moving party claimed to be confidential to it, then, in my view, either of those situations would provide a sufficient interest to justify an application to set aside the subpoena…So I do not think that this application can be disposed of on the ground of standing without an examination of the connection, if any, between the documents sought to be required to be produced by the subpoenas in question on the one hand, and the defendants on the other.

I would also add this: that the rule provides that the Court may, of its own motion, set aside a subpoena, and one can readily contemplate situations where the Court, having had its attention drawn to the terms of the particular subpoena by a party, might decide to act on its own motion, and the Court could well take such a course where the circumstances indicated that to require a formal application by the person to whom the subpoena was addressed would simply waste money and time…’

33                  In Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 at 102, Beaumont J stated that the issue of a subpoena would be an abuse of the process of the Court if it is not used for a legitimate forensic purpose, referring thereby to the following passage in the reasons for judgment of Powell J in Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100-101:

‘Although a reference to the authorities makes it tolerably plain that the court will exercise its undoubted jurisdiction to set aside a subpoena in a variety of cases, as, for example:

1.      unless the subpoena was issued for the purpose of a pending trial, hearing or application…

2.      where to require the attendance of a witness would be oppressive…

3.      where the subpoena had not been issued bona fide for the purpose of obtaining relevant evidence and the witness to whom the subpoena had been addressed was unable to give relevant evidence…

4.      where the subpoena has been used for the purpose of obtaining discovery or further discovery against a party…

5.      where the subpoena has been used for the purpose of obtaining discovery against a third party…

6.      where to require a party to comply with a subpoena to produce documents would be oppressive…

7.      where the subpoena has been issued for a purpose which is impermissible, as, for example, “fishing”…

the authorities do not make clear whether such classes of case to which I have referred above are to be regarded as the only cases in which the court will intervene, or, whether such cases are to be regarded as merely particular examples of a broad class of case in which the court will intervene to exercise its jurisdiction to set aside a subpoena, or, indeed, whether the jurisdiction to set aside a subpoena is but one part of a wider jurisdiction of the court. It seems to me, however, that when, as one does, one finds assertions that the court’s jurisdiction to set aside a subpoena is but part of the inherent jurisdiction of the court…coupled with assertions that a subpoena will be set aside if it be issued for an impermissible, or illegitimate, purpose, or if to require compliance with it would be oppressive…it is difficult to avoid the conclusion that, in reality, the court’s jurisdiction to set aside a subpoena is but one aspect of the court’s jurisdiction to act to prevent an abuse of process, and that particular classes of case which I have recorded above are to be regarded as no more than examples of situations which the courts, in the past, have held, and, in the future, would hold, to be cases of an abuse of process.’

34                  Beaumont J also referred in Arnotts to a passage from the dissenting judgment of Deane and Gaudron JJ in Hamilton v Oades (1989) 166 CLR 486 at 502, in which their Honours discussed the inherent power of a court of superior record to control and supervise its process to prevent injustice:

‘The power of a court to control and supervise its process to prevent injustice is not restricted to defined and closed categories…In this context injustice is not simply a question of the purpose or motive for which the relevant proceedings were instituted but involves a consideration of the consequences of the proceedings for the person invoking the power. The terms “oppressive” and “vexatious” are often used to signify those considerations which justify the exercise of the power to control proceedings to prevent injustice, those terms respectively conveying, in appropriate context, the meaning that the proceedings are “seriously and unfairly burdensome, prejudicial or damaging” and “productive of serious and unjustified trouble and harassment”: Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 247-50, per Deane J.’

Hamilton v Oades involved a challenge to the exercise by the Supreme Court of New South Wales of its power to order a company director to be examined on any matters relating to the affairs of that company under s 541(3) of the Companies (New South Wales) Code. Their Honours’ dicta is nevertheless descriptive of the inherent power of this Court to set aside subpoenas that are abusive or oppressive: see Arnotts Ltd at 102; Trade Practices Commission v Kimberly Homes Pty Ltd (1989) 217 ALR 110 at 114 (Hill J); Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 588 (Stone J).

35                  Drawing on Deane and Gaudron JJ’s above dicta,Beaumont J next stated that the determination of whether a subpoena was issued for a legitimate forensic purpose depends not just on an analysis of the motive of the issuing party, but also on the impact of the subpoena on the party upon whom it is served. At 103 of his reasons for judgment, his Honour enumerated two questions to be asked:

‘(1) Does the material sought have an apparent relevance to the issues in the principal proceedings, that is, is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent? This involves a consideration of the matter from the standpoint of [the issuing party].

(2) Is the subpoena seriously and unfairly burdensome or prejudicial? This is to look at the matter from the point of view of [the party subpoenaed].’

36                  His Honour at 103 referred to the meaning of ‘apparent relevance’ in the following terms:

‘The test of adjectival relevance is satisfied if the material has apparent relevance. In my opinion, the documentation called for here could possibly throw light on the issues in the main case. In my opinion, adjectival relevance is established.’

In Kimberly Homes at 115-6¸ Hill J referred with approval to Beaumont J’s test for relevance and emphasised that it was not necessary for the court to determine whether the documentation or material the subject of the subpoena would be admissible in any final hearing of the proceedings. Although it is not necessary for the material to meet the standards of relevance required of evidence adduced at trial, Hill J considered that it was appropriate to have regard to the issues in dispute, as they appeared in the pleadings. In Cosco Holdings Pty Ltd v Commissioner for Taxation [1997] FCA 1504, Spender J also considered Beaumont J’s test of ‘adjectival relevance’ and explained it as follows:

‘Notwithstanding the use of the word “possibly” in this paragraph, in my opinion, that word is not used in any speculative sense. I take his Honour’s conclusion expressed in that paragraph as an acquiescence to the correctness of the submission that the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings. It is not a question of looking at the documents to see if the documents might permit a case to be made.’

As is the case presently before the Court, Spender J was there concerned with a submission that a request for documents (contained in a summons) amounted to merely a ‘fishing expedition’.

37                  In determining whether a subpoena is an abuse of the court’s process, it is necessary to bear constantly in mind the need to balance the conflicting rights of the party to the proceedings, who has issued the subpoena, with those of the third party who now objects to it. The issuing party has a right to obtain access to documents in the hands of a third party in order to further the ends of justice, and so that he or she may therefore prepare a case meeting each issue arising in the proceedings. Compliance with a subpoena to produce may involve an invasion of the third party’s right to privacy, and his or her right accordingly not to be required to seek out, identify, collate and produce his or her documents to court, in circumstances where he or she has no interest in the proceedings: see R v Barton [1981] 2 NSWLR 414 at 419 (per Cantor J). In the present circumstances, compliance with the disputed parts of the RailCorp subpoena has the potential to reduce or extinguish the confidentiality the Institute has enjoyed over its trade secrets. Production of the relevant material has potentially serious implications also for public safety, were the methodology of the Institute’s psychological testing to became publicly known; moreover there is the possibility of Ms Phillis experiencing adverse psychological effects from release of the information. Balanced against that area of concern is the desire of Mr Mandic to obtain further material about Ms Phillis’ mental health as it was at or around the time she made her affidavit of 31 January 2005. The latter factor raises the question however as to why Mr Mandic, or his legal representatives, did not seek that information at some earlier time before Ms Phillis’ complaints came on for final hearing before the Federal Magistrate.

38                  It is apparent from this discussion that the authorities do not disclose a single settled approach to the question of when it is definitively appropriate to set aside a subpoena. I am satisfied that the Court’s power to do so is an incident of its inherent power to regulate the use of its processes by parties to litigation, of which the issue of subpoenas is but one aspect. The outstanding question for resolution is whether the subpoena addressed to RailCorp, in so far as it requires the production Ms Phillis’ psychological profile prepared by the Institute, is an abuse of the court’s process by reason of the following matters I have foreshadowed, considered individually or cumulatively:

(a) the desire of the Institute to keep confidential its ‘trade secrets’ being the process, or combination of processes that it has adopted over a lengthy period of time for the provision of psychological profiling services to employers seeking to screen job applicants;

(b) the need to ensure the confidentiality of the testing processes adopted by the Institute so as to prevent potential job applicants with psychological difficulties from cheating those processes and thereby endangering the public by obtaining employment in positions of authority;

(c) the further need to ensure that Ms Phillis is not put at risk of harm by virtue of her becoming aware of the contents of her psychological profile and report in the absence of a properly qualified person being on hand to explain to her the testing and analysis and to provide any counselling;

(d) the asserted lack of a legitimate forensic purpose for the issue of the subpoena by Mr Mandic and the apparent resemblance accordingly to a ‘fishing expedition’.

The application of general principles to the RailCorp subpoena

39                  Addressing first the contention that the subpoena is an abuse of the Court’s process because it was issued without a legitimate forensic purpose, or otherwise amounts to a ‘fishing expedition’, it is necessary to consider the submissions of counsel for Mr Mandic on the relevance of material in dispute.

40                  With reference to the affidavit filed by Ms Phillis at first instance sworn 31 January 2005 and the affidavit sworn 30 August 2005 by Dr Byrne in the context of the present application, counsel for Mr Mandic sought to demonstrate how the production into evidence of Ms Phillis’ psychological profile could provide a reasonable basis for overturning the primary judge’s assessment of the credibility of Ms Phillis’ evidence below, and hence would or could have led to a different result. So much involved a somewhat complex process of inference and deduction.

41                  In her affidavit sworn 31 January 2005, Ms Phillis desposed to experiencing feelings of paranoia about persons of Croatian background, and she related in particular a recurring dream featuring a number of Croatian men. It was common ground that counsel for Mr Mandic had in his possession at the trial a copy of that affidavit, and furthermore that his counsel had cross-examined Ms Phillis extensively on its contents, raising with her in particular the possibility that her account of events was derived from a dream, rather than based on reality. His Honour expressly rejected that contended thesis at [14] of his reasons for judgment. Counsel for Mr Mandic maintained however that were leave now to be granted to adduce fresh evidence in the form of Ms Phillis’ psychological profile prepared for RailCorp by the Institute, a different factual finding was a ‘real possibility’.

42                  Counsel for Mr Mandic referred to the evidence of Dr Byrne that a significant proportion of applicants for positions of authority (such as transit officers) exhibit personality traits or psychopathology which render them unsuitable for such positions, and his repeated referral to the danger of allowing applicants to ‘beat the test’ by becoming privy to the style or type of questions likely to be asked. Counsel for Mr Mandic asked the Court to infer moreover that the basis for that concern on his part lay in the fact that those tests were ‘objective’ in nature, such that persons alert to their own foibles would find it difficult to shield them completely from the questions asked. There is I think some inconsistency between the notion that the psychological tests the subject of the RailCorp subpoena are ‘objective’ in the sense of being difficult to deceive through the use of pre-meditated responses, on the one hand, and the risk on the other hand identified by Dr Byrne to the effect that were potential applicants to obtain copies of the questions beforehand they would find it easier to somehow ‘beat the test’. There is to my mind considerable doubt as to whether that inference counsel for Mr Mandic asked me to draw from Dr Byrne’s evidence is reasonably open.

43                  Counsel for Mr Mandic next took the Court to the document entitled ‘Why Profile Findings Should not be Released to Job Applicants’ annexed to Dr Byrne’s affidavit, and emphasised the following passages:

‘It is a fact of life that public safety roles sometimes attract disturbed applicants who want to be appointed for pathological reasons.

Common examples include the paranoid personality who feels that being “powerful” will be protection from perceived enemies; the severely depressed person who thinks that a uniform will magically dissolve their feelings or inadequacy or hopelessness; and the psychopath (who is particularly attracted to police and transit officer roles) and who wants to work in a job which allows for the exploitation of weaker people.’

This demonstrated the reason for requiring proposed employees to undertake psychological profiling, counsel for Mr Mandic so submitted.

44                  Counsel for Mr Mandic next asked the court to infer from the fact that Ms Phillis is currently employed by RailCorp as a transit officer that she must not have exhibited paranoia about Croatian men in her psychological screening test undertaken with the Institute, which apparently took place at or around the time when Ms Phillis swore her affidavit of 31 January 2005. Counsel pointed to the importance and responsibility inherent in the position of transit officer and sought to infer that persons suffering from psychological paranoias about persons from specific racial backgrounds would not be selected for that position, out of concern for public safety. It could therefore possibly be inferred, so counsel for Mr Mandic further contended, that since Ms Phillis had succeeded in her application to become a transit officer, she did not exhibit psychological paranoia during her testing process at the Institute. The result of those postulations was submitted to be that were Ms Phillis to be cross-examined with the benefit of the results of her psychological testing, and assuming those tests found her to be without psychological paranoia about Croatian men, there would be a real possibility that an opposite or reverse credibility finding could be made about Ms Phillis and her account of the controversial events of July 2003, since her affidavit of 31 January 2005 would be thus shown to have been false.

45                  Counsel for Ms Phillis submitted that the issue raised in relation to the controversial subpoena was merely speculative, and was therefore an abuse of the Court’s process because it amounted to no more than a ‘fishing expedition’ on the part of counsel for Mr Mandic. A person ‘fishing’ in such a context was described by Jordan CJ in Commissioner of Railways v Small (1938) 38 SR (NSW) 564 at 575 as ‘endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all’. The traditional metaphor was elaborated upon by Owen J in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 at 254 as follows:

‘…a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding whether there are any there or not.’

46                  The Full Federal Court has recently said that the concept of ‘fishing’

‘has undergone a substantial rethinking in this Court in recent years. In a number of cases it has been pointed out that O 15A r 6 (discovery before action) expressly contemplates what once might have been castigated as fishing and that it would be incongruous if the power to order discovery were less extensive in favour of a party to a proceeding properly brought in the Court than in favour of someone unable for lack of evidence to mount a case…’

(Bailey v Beagle Management Pty Ltd (2001) 105 FCR 136 at [27], per Heerey, Branson and Merkel JJ). Their Honours emphasised the general principle enunciated by the High Court in Grant v Downs (1976) 135 CLR 674 at 685 that the public interest requires that in the interests of a fair trial, litigation should be conducted on the footing that all relevant documentary evidence is available. In Bailey, the Court was asked to set aside the trial judge’s interlocutory judgment refusing to set aside the respondents’ notice to produce on the ground that it was ‘fishing’. Although their Honours directed their dicta to all forms of ‘interlocutory process’, it may be borne in mind that they were there dealing with the use of notices to produce by parties against other parties to the same litigation, in a pre-trial context, the documents there being sought for the purpose of the respondents’ security for costs application.

47                  Other recent decisions of the Court of the same vein may be similarly observed as tending to deal with the question of ‘fishing’ in the context of requests for discovery in the lead up to the trial, or similar interlocutory processes. Often those statements of principle referred to the operation of O 15A r 6 of the Federal Court Rules, which provides an avenue for an applicant having reasonable cause to believe that he or she has or may have the right to obtain relief in the Court to obtain from a third party documentation to assist in the making of a decision of whether to initiate proceedings in the court. In light of O 15A of the Rules, Burchett J (with whom Lockhart and Gummow JJ agreed) said in Caltex Refining Co Pty Limited v The Amalgamated Metal Workers’ Union (Federal Court of Australia, 6 December 1990, unreported) that:

‘[i]t would be ironic if the Court refused an applicant, on this basis, discovery after action, when discovery could have been obtained (at the expense of incurring extra costs) by an application before action.

Discovery should be controlled, and may be limited to documents relevant to particular issues, but it is a valuable weapon in the armoury of justice. The real objection which, in some cases, justifies discovery being limited to particular issues is the objection of oppression.’

I would refer also to Treasurer of the Commonwealth of Australia v Canwest Global Communications Corp (Federal Court of Australia, Beaumont, Burchett and Emmett JJ, 30 June 1997, unreported) in which their Honours cited that passage with approval.

48                  The identification by Burchett J in Caltex Refining of ‘oppression’ as typically the ‘real objection’ to a discovery request is significant. The Full Court in Bailey made the same observation at [31], pointing out that immediately after defining the practice of ‘fishing’ in his reasons for judgment in Commissioner for Railways v Small, Jordan CJ went on to say (at 575):

‘Even if the documents are specified, a subpoena will be set aside as abusive if great numbers of documents are called for and it appears they are not sufficiently relevant.’

Their Honours in Bailey construed Jordan CJ’s dicta in the following manner:

‘[h]is Honour appears to accept that, when the documents sought from a party to the proceeding are described with reasonable particularity and are relevant, they could not be said to be sought for the purpose of fishing, although if a large number of documents of only marginal relevance were sought, the subpoena would be set aside as oppressive.’

49                  It is not apparent to me how the degree of specificity of the documents sought may be indicative of whether the subpoena, discovery request or other disputed interlocutory process is a fishing expedition. Nevertheless, the courts have at times approached the question of fishing by ascertaining the relevance of the documentary or other material sought by the disputed process, and further ascertaining whether the benefit of receiving that material, or the effort involved in obtaining it, is out of proportion to its relevance: see Bailey at [30], Dorajay at [34]; and Spatialinfo Pty Ltd v Telstra Corporation Ltd [2005] FCA 455 at [46]. I do not accept however the notion that the introduction of Order 15A of the rules has rendered ‘less obnoxious’ (see Spatialinfo at [42]) the notion of fishing as explicated in earlier authorities universally; there remains the need to take into account the particular facts and circumstances and the stage of the proceedings at which the disputed process is issued. The present circumstances are an apt demonstration of the need for courts to be vigilant to prevent parties to litigation impermissibly using the court’s processes to coerce the production of documents, particularly from strangers to litigation, in circumstances where the ‘proceeding is essentially speculative in nature’ (WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 at 182, per Brennan J).

50                  The present circumstances are, broadly speaking, indistinguishable from those in WA Pines. In that case, the Trade Practices Commissioner served on a Western Australian corporation a notice pursuant to s 155 of the Trade Practices Act 1974 (Cth) to furnish certain information and documents being brochures relating to an investment. Section 155 empowered the Commission to seek information where the Commission, the Chairman or the Deputy Chairman had reason to believe that the corporation was capable of furnishing information relating to a matter that constitutes or may constitute a contravention of that Act. In challenging the issue of that notice, the corporation pleaded that the Commission did not have the requisite reason to believe the matters contained in s 155. The corporation sought discovery from the Commission in support of that contention on its part. Brennan J described the request as follows (at 181-2):

‘This is a case where a bare allegation is made by par 6 of the statement of claim and, the paragraph being denied, the applicant seeks to interrogate the Chairman and ransack his documents in the hope of making a case. That is mere fishing. As Smithers J said in Melbourne Home of Ford Pty Ltd v Trade Practices Commission [(1979) 36 FLR at 450 at 460]: “In the absence of such evidence the proceeding is essentially speculative in nature…”’

51                  Mr Mandic may here be seen to be likewise ‘hoping’ that by subpoenaing the reports of psychological testing of Ms Phillis undertaken by the Institute on behalf of RailCorp he will uncover some evidence that may conceivably upset the clear, and unchallenged, findings of fact of the primary judge to the effect that Mr Mandic had sexually harassed Ms Phillis on several occasions in July 2003. So much is essentially a ‘shot in the dark’, made in circumstances where the litigation has already been relevantly determined, and where Mr Mandic has conceded that there presently exist no viable grounds of appeal from his Honour’s judgment below. Also pertinent to the issues arising is the undeniable inference that Mr Mandic’s former legal representatives made a deliberate choice not to pursue this line of inquiry at trial. The number of inferences and deductions which counsel for Mr Mandic was effectively required to draw in order to purportedly demonstrate the relevance of the subpoenaed material eloquently demonstrates the speculative nature of the venture to which the Court is now being asked to lend its aid. I am of the view that I must withhold from so doing. For the foregoing reasons, I would set aside the relevant part of the RailCorp subpoena as merely fishing, and sufficiently objectionable upon that basis.

52                  There is, I observe, some degree of artificiality in attempting to apply the general principles for the setting aside of subpoenas, as they appear in Beaumont J’s reasons for judgment in Arnotts, to the present matter. The Court is here ultimately concerned with the issue whether to exercise its discretion to allow Mr Mandic a dispensation from the rules of court for the filing and service of a notice of appeal from the Federal Magistrate’s decision. At the risk of appearing to be repetitive, I repeat that counsel for Mr Mandic acknowledged that the utility of any appeal would depend entirely upon whether the Court were minded to grant leave to allow the admission of further evidence not adduced before the Federal Magistrate. The grant of an extension of time therefore seemingly hinges upon the chances of Mr Mandic being able to convince the Federal Court on appeal of the desirability of allowing such further evidence, assuming that it exists, to be adduced. Even were the Court to allow the evidence, yet put at its highest, the same could achieve no more than support an inference that the decision of RailCorp to employ Ms Phillis was inconsistent with the possession by her of a psychological paranoia about men of Croatian background or appearance. That inference is said by Mr Mandic in effect to be so important that had the primary judge been in a position to draw the same himself, he would have reached a different conclusion in the course of balancing the credibility of the respective testimonies of Ms Phillis and Mr Mandic. Indirectly, the disputed material would appear to conceivably throw some light on the issues that arose before the Federal Magistrate, but only in the most tangential manner. In spite of counsel’s strenuous, and if I may say so commendable, efforts to convince me otherwise, I am unable to accept that Mr Mandic has a cogent basis objectively for believing that the documents in dispute would support his application for an extension of time for the ultimate purpose he would seek to accomplish.

53                  Addressing then the second question posed by Beaumont J, that is, whether the subpoena is seriously and unfairly burdensome or prejudicial to either RailCorp or the Institute, it is apparent I think from the material placed before me that production of the disputed documents on subpoena is productive of ‘serious and unjustified…harassment’, as well as being ‘seriously and unfairly…prejudicial or damaging’ (Hamilton v Oades, per Deane and Gaudron JJ, at 502). I have reached that conclusion for several reasons which I will now discuss.

54                  The Institute insisted that the production of the disputed documents would entail a loss of confidentiality. Confidentiality is not a ground per se for setting aside a subpoena: Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350 at 380-81; Dorajay at [36] and Spatialinfo at [51]. The Full Court of the Supreme Court of Western Australia (Kennedy, Pidgeon and Franklyn JJ) said in Apache Northwest at 380-81:

‘…[s]tanding alone, confidentiality is not a ground for refusing to issue, or for setting aside, a subpoena, [however] it is a factor which is to be taken into account, together with those tests for oppression which are determined by reference to the breadth of the subpoena, the definition of the documents involved and the type and degree of burden placed upon those to whom the subpoena is addressed…the relevance of the confidential documents being sought to the issues…is a further factor’

Insofar as the Institute’s request for retaining the confidentiality of the disputed documents involves protection of its trade secrets, appropriate arrangements could be made to limit access to the material to legal representatives of Mr Mandic: see Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34 at 39, per Hayne JA.

55                  The Institute however has also pointed additionally to the risk posed to public safety that may arise by reason of the publication of the results and methodology of Mr Phillis’ tests. Counsel for the Institute and RailCorp did not appear to place these concerns on the mantle of a public interest immunity. In making that observation, I do not intend any criticism, given the haste with which these issues came on for hearing and the short period of time in which counsel had been instructed. Thus to have made a claim of that kind would have required in the normal course more substantial evidence than what was led, being material defining with greater specificity the nature of the public interest sought to be protected and the grounds for such protection: see generally Sankey v Whitlam (1978) 142 CLR 1; Alister v The Queen (1983) 154 CLR 404; Trade Practices Commission v Arnotts Limited (1989) 88 ALR 90. Moreover the concerns raised by Dr Byrne, including those concerning the health and safety of Ms Phillis, provide further reason to exercise my discretion in favour of setting aside the subpoena sought to be served on RailCorp. In so ruling, I am conscious of the need to balance the public safety concerns with the public interest in the proper administration of justice. Each case must of course be decided with regard to its own particular circumstances, which I have here sought to do.

56                  I should add for completeness RailCorp and the Institute relied also on the decision of the House of Lords in Scientific Research Council v Nasse [1980] AC 1028. That case concerned requests for discovery by two employees from their respective employers. Both employers disputed those discovery requests, in so far as they required the production of confidential reports made about other employees; those other employees having obtained the promotions that the two litigants had unsuccessfully applied for. The House of Lords rejected the case that those confidential reports were subject to public interest immunity; however Lord Wilberforce (with whom Lord Edmund-Davies expressly agreed and Lord Salmon reached a similar conclusion), in concluding that no such species of public interest immunity existed, made the following findings nevertheless as to the ambit of the Court’s discretion in matters of discovery (at 1065-66):

‘There is no principle in English law by which documents are protected from discovery by reason of confidentiality alone. But there is no reason why, in the exercise of its discretion to order discovery, the tribunal should not have regard to the fact that documents are confidential, and that to order disclosure would involve a breach of confidence…

As a corollary of the above, it should be added that relevance alone, though a necessary ingredient, does not provide an automatic sufficient test for ordering discovery. The tribunal always has a discretion…

The ultimate test in discrimination (as in other) proceedings is whether discovery is necessary for disposing fairly of the proceedings. If it is, then discovery must be ordered notwithstanding confidentiality.’

57                  Counsel for the Institute and RailCorp thus maintained that Nasse is authority for the proposition that the Court has the power to restrict access to information produced by the Court’s processes. They further submitted that the facts here present justifying non-disclosure were ‘even stronger’ than those involved in Nasse. Although the existence of that power is not in doubt, it is necessary to observe first, that the Court is here dealing with the question of whether a subpoena ought to be set aside, not whether inspection rights to the material produced on subpoena should be granted or not; and second, that his Lordship’s findings were made in the context of rules of court which provided that discovery shall not be ordered if and so far as the court is of the opinion that it is not necessary either for disposing fairly of the proceedings or for saving costs. Despite the apparent absence of this wording in the South Australian Supreme Court rules under consideration in Santos Ltd v Pipelines Authority of South Australia (Supreme Court of South Australia, Millhouse, Perry and Debelle JJ, 27 May 1996, unreported), Debelle J referred favourably to the approach advocated by the House of Lords in Nasse:

‘… Where a subpoena seeks a production of confidential documents, it is necessary for the Court not only to examine the issue of the confidentiality of the documents and balance the invasion of the private rights of BHP Petroleum with the public interest in the due administration of justice in the disclosure of all relevant information, but to determine also whether the documents are necessary for fairly disposing of the proceedings: Science Research Council v Nasse [1980] AC 1028; Dolling-Baker v Merrett [1990] 1 WLR 1205, decisions which were applied in Arhill Pty Ltd v General Terminal Co Pty Ltd (1991) 23 NSWLR 545, 555-556. In that decision, Rogers CJ noted that O 24 r 13 of the Rules of the Supreme Court (UK) specifically provide that no order for production of documents for inspection shall be made "unless the Court is of the opinion that the order is necessary, either for fairly disposing of the cause or matter, or for saving costs." Notwithstanding the absence of a like provision in r 81, I agree with Rogers CJ that it is nevertheless an appropriate criterion by which to approach applications to set aside a subpoena on the ground of confidentiality and like issues on discovery and inspection. That was another question to be examined in the course of the application by BHP Petroleum to set aside the subpoena.’

Perry J stated however that he did not consider it appropriate for a third party seeking to have a subpoena set aside, but who is otherwise foreign to the proceedings and the issues raised therein, to make submissions on whether or not production of the documentation is necessary for fairly disposing of the proceedings. It is therefore somewhat doubtful how far reliance upon Nasse is open to take the Institute and RailCorp in this matter, particularly when regard is had to their Lordships’ conclusion that where issues of confidentiality arise in discovery disputes, it would normally be first expedient for the Court to inspect the documents in order to undertake the relevant balancing of interests or determination of necessity as provided by the court rules, a course both entities urged the Court not to take in this case. In the circumstances it is I think unnecessary for me to seek to place any reliance on the decision in Nasse, notwithstanding the invitation of counsel for RailCorp and the Institute that I do so.

58                  In any event, enforcement of the disputed aspect of the RailCorp subpoena, would have implications, if not also consequences, in terms of breach of confidence, for public safety and conceivably for the commercial interests of the Institute, and also for the potentially legitimate interests of Ms Phillis’ privacy, being implications and consequences which would enter the balancing exercises thereby falling for consideration. I acknowledge that were it not for the at least speculative basis for Mr Mandic’s resort to use of the subpoena process, the barely tangential relevance of the disputed material likely to be produced therefrom, and the present stage of the relevant litigation involving Mr Mandic, I may well not have considered breach of confidence to be a sufficient factor for setting aside the RailCorp subpoena to the extent in controversy. Weighing those factors cumulatively requires however a different outcome and thus adverse to Mr Mandic’s interest. I find that the disputed part of the RailCorp subpoena, which is its presently material aspect, if enforced, would involve an abuse of the Court’s process, and for that reason it must be set it aside.

Conclusions on Mr Mandic’s application for an enlargement of time in which to file and serve a notice of appeal

59                  Order 52 r 15(2) provides that the Court may grant leave to file a notice of appeal at any time for special reasons. Exercise of the power to grant an extension of time in which to file a notice of appeal is inherently discretionary in nature. The meaning of the expression special reasons was considered by the Full Federal Court in Jess v Scott (1986) 12 FCR 187, where at 195 of Lockhart, Sheppard and Burchett JJ’s joint reasons for judgment it was said as follows:

‘It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of 21 days. In that context, the expression “special reasons” is intended to distinguish the case from the usual course according to which the time is 21 days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression “for special reasons” implies something narrower than this.’

60                  The power of a judge of the High Court to grant the equivalent dispensation from the rules of that Court was considered in Gallo v Dawson (No 2) (1992) 109 ALR 319, where at 480 the Court endorsed the following statement of principle enunciated by McHugh J at first instance:

‘The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties…This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for an extension of time…When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal…’ (My emphasis appears in non-italics).

61                  The language of the Full Court in Jess v Scott in identifying grounds that ‘justify a departure from the general rule in the particular case’ emphasised the broad nature of the discretion here to be exercised. Nevertheless the prospects of success of the contemplated appeal is an important and often determinative factor in reaching the decision to enlarge or to refuse to enlarge time under O 52 r 15(2), and must outweigh Mr Mandic’s reasons, such as they are, for the delay, and his inadequate understanding of the English language and his lack of legal representation.

62                  Since I have decided to grant the relief sought by RailCorp and the Institute by way of setting aside the RailCorp subpoena, there is no possibility of Mr Mandic adducing any further evidence on appeal, were such an appeal be permitted to proceed although out of time. Even if I were to assume for the moment that Mr Mandic may be allowed to call on the RailCorp subpoena, and that documents were to be produced having the evidentiary effect required by Mr Mandic, there would still remain insuperable difficulties in the way of granting Mr Mandic the requested extension of time, which would arise for consideration.

63                  Section 27 of the Federal Court Act 1976 (Cth) provides that the Court has a discretion to receive further evidence on appeal. The principles for the admission of further evidence on appeal are well settled. In Guss v Johnson [2000] FCA 1455, Sackville J, with whom Drummond and Dowsett JJ agreed, said at [30]:

‘… it is ordinarily necessary for the party seeking to adduce further evidence to demonstrate that the evidence relied on is cogent; that is, the Court exercising appellate jurisdiction needs to be satisfied that the proffered evidence would be likely to have produced a different result had it been available at the trial.’

His Honour referred thereafter to a passage in the joint judgment of McHugh, Gummow and Callinan JJ in CDJ v VAJ (1998) 197 CLR 172 at 202-203, which is of particular piquancy in the present circumstances. Their Honours were there concerned with s 93A(2) of the Family Law Act 1975 (Cth), which is in similar terms to s 27 of the Federal Court Act 1976 (Cth). Their Honours considered that it was:

‘highly unlikely that Parliament in conferring jurisdiction on the Full Court [of the Family Court] to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial. [W]e cannot accept that the discretion to receive further evidence is so wide that the Full Court can admit further evidence merely because it is useful. Such a criterion is inconsistent both with the nature of the appellate jurisdiction exercised by that Court and with the perceived purpose of s 93A(2).’

64                  Sackville J concluded in Guss at [42] that the ‘appellant has not shown that the proffered evidence is sufficiently cogent to be admitted pursuant to s 27 of the Federal Court Act’. In the preceding paragraph in his Honour’s reasons, the following appears:

‘I should add that, even if the appellant had satisfied the test of cogency, he would have had to overcome strong discretionary considerations militating against the admission of the further evidence. The majority judgment in CDJ v VAJ suggests at (203-204) that the exercise of the discretion conferred by provisions such as s 27 of the Federal Court Act, although not to be limited by rigid rules, may be informed by factors such as the availability of the evidence at the trial and the need for finality in litigation.’

In regard to factors influencing the Court’s discretion it is useful to also have regard to what was said by the Full Court in Wilson v Official Trustee in Bankruptcy [2000] FCA 304 (Finn, Marshall and Goldberg JJ) at [34]:

‘In order for the applicants to open the door to a consideration whether fresh or further evidence should be the subject of consideration for the purposes of setting aside an earlier regularly entered judgment it is necessary to establish that the evidence could not, with reasonable diligence, have been discovered or found out prior to the handing down of the judgment which is sought to be impugned.’

65                  In the course of their reasons for judgment in CDJ v VAJ, McHugh, Gummow and Callinan JJ considered whether the common law principles concerning the admissibility of further evidence contained in authorities such as Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435 bore any relevance in the context of provisions such as s 93A(2) of the Family Law Act 1975 (Cth) (and therefore, s 27 of the Federal Court Act 1976 (Cth)), which provide the power for the admission of further evidence in statutory appeals. Their Honours concluded that because cases such as Wollongong Council were informed by the position of English common law courts, and not with the provisions of modern statutes expressly conferring on appellate courts the power to admit further evidence, they were not authoritative in defining the jurisdiction or controlling the discretion to admit evidence in statutory appeals (at [97]).

66                  In spite of their Honour’s repeated emphasis that the common law principles as enunciated in Wollongong Council cannot delimit the discretion of the Court to admit further evidence in statutory appeals, I observe what their Honours said at [111]:

‘Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial.’

Their Honours also denied that the discretion to admit further evidence is so wide that it may be exercised merely where further evidence is ‘useful’ (at [112]). Their Honours considered that:

‘[t]he failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section [s 93A(2)].’

The Full Court’s dicta in Wilson, which I have recited above, must be read in light of the latter statement of principle by the High Court.

67                  In the present case, Mr Mandic was unable to provide any evidence explaining why RailCorp was not presented with a subpoena in similar terms prior to the hearing in the Federal Magistrates Court. Counsel for Mr Mandic was commendably frank in his recognition of the problems this caused for Mr Mandic’s present application. Counsel was placed in a very difficult position whereby his belated receipt of instructions doubtless at least inhibited him from undertaking at least entirely adequate enquiries to ascertain the circumstances prevalent at the relevant times. Whilst the failure of Mr Mandic to attempt to obtain, and therefore to adduce, this evidence before the Federal Magistrate would not be a definitive indictment on his application to adduce further evidence on appeal, it is nevertheless compelling in its implications.

68                  Counsel for Ms Phillis emphasised that a decision to grant Mr Mandic an extension of time of time to facilitate an appeal in which Mr Mandic would make an application for the production of further evidence, the nature of which is apparently highly personal to Ms Phillis, would act as a substantial disincentive to any victim to resort to the complaints processes the subject of the Sex Discrimination Act 1984 (Cth)and Human Rights and Equal Opportunity Commission Act 1986 (Cth). Counsel questioned, correctly in my view, whether any person in the position of Ms Phillis would undertake recourse to the initiation of the complaints process provided by those statues, given that even after judicial findings had been made in their favour by way of upholding their complaints, they could nevertheless be subject to the ongoing invasion of privacy inherent in the sphere of evidence which Mr Mandic would seek to adduce. Particularly would that be so in circumstances where, as here, the unsuccessful defendant has conceded that no grounds of appeal are otherwise open to him.

69                  Moreover I am far from satisfied that had evidence of the kind foreshadowed been available for tender at the trial that it would have led to a different result to that established by the Federal Magistrate. The factual findings of Raphael FM, which I have extracted, show that his Honour found Ms Phillis’ account of the relevant events to be far more detailed and credible than that of Mr Mandic. I would conclude that there would be little prospect that a Court on appeal would exercise its discretion to admit the further evidence postulated. Therefore, even if I was not to have set aside the proposed subpoena on RailCorp, I would not have had a viable basis open to me for granting to Mr Mandic the extension of time sought to appeal.

70                  For all of the aforementioned reasons, the application for an extension of time to file and serve a notice of appeal is dismissed. Although RailCorp and the Institute have succeeded in their application to set aside the subpoena, they did so in circumstances which would tend to be of assistance to them as a future precedent of utility. In those circumstances I have determined as a matter of discretion that those parties should bear their respective costs of the application to set aside the subpoena. It must inevitably follow however that the respondent to the appeal, Ms Phillis, should have her costs of the application on a party and party basis.

Associate:

Dated: 13 September 2005