FEDERAL COURT OF AUSTRALIA

Davidson v McCann WorldGroup Pty Ltd [2011] FCA 627

THE COURT ORDERS THAT:

1.    The respondent provide discovery within 14 days of the following documents:

(a)    any email communications that have not yet been discovered by the respondent between the officers, employees, agents, legal advisers, financial advisers and/or other representatives of the respondent from 1 January 2005 to 9 January 2007 regarding any complaints regarding the subject matter of these proceedings raised with or made to the respondent by the applicant; and

(b)    the statutory reports of the respondent for the financial years ending 31 December 2005 and 31 December 2006 and the profit and loss statements for the Universal McCann Division of the first respondent for the period.

2.    Costs be reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

THE COURT ORDERS THAT:

1.    The first and second respondents provide discovery within 14 days of the documents identified in paras 2, 3, 6, 7, 8 and 9 of the List of Categories to be discovered by the Respondents dated 3 September 2010 being annexure “J” to the Affidavit of Sandra Marks sworn on 1 April 2011, and:

(a)    Documents evidencing, recording or referring to the communications which took place during the conciliation of the Applicant’s complaint on 22 January 2008 before the Australian Human Rights Commission; and

(b)    Documents evidencing, recording or referring to the communications which took place at a dinner that occurred on 29 March 2008, at which the Second Respondent was present.

(c)    Documents evidencing, recording or referring to the communications which took place at a dinner that occurred on 29 March 2008, at which the Second Respondent was present.

2.    Costs be reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

Introduction

1    In matter NSD 450 of 2011 the applicant applies for orders for discovery to be given by the first respondent. Because the matters were transferred to this Court from the Federal Magistrates Court on 4 April 2011, the application takes the form of an application in a case filed in the Federal Magistrates Court on 4 April 2011. The categories were nine in number but I was informed at the commencement of the hearing that two of those categories are no longer contentious.

2    The categories appear to reflect a list of categories filed in the Federal Magistrates Court as long ago as 13 May 2008.

3    Order 15 rule 15 of the Federal Court Rules places an overriding limitation on the exercise of the Court’s discretion in relation to discovery. It provides:

The Court shall not make an order under this Order for the filing or service of any list of documents or affidavit or other document or for the production of any document unless satisfied that the order is necessary at the time when the order is made.

What is necessary for the fair trial and disposition of the case is the principal consideration: see University of Western Australia v Gray (No 8) [2007] FCA 89 at [18] and the authorities referred to there. I also take into account s 37M of the Federal Court of Australia Act 1976 which refers to the overarching purpose of the Federal Court Rules being the just resolution of disputes according to law and as quickly, inexpensively and effectively as possible.

The evidence

4    The applicant relies on the affidavit sworn by Sandra Helen Marks on 1 April 2011 and on the affidavit sworn by Gregory Joseph Johnson on 1 June 2011 which annexes correspondence between the parties’ solicitors. Also tendered on this interlocutory hearing were two series of emails from July 2005 dealing with “Policy on Part timers” and “Policy on Part time Staff”.

5    The first respondent resists discovery being given in the terms sought and relies on three affidavits sworn by Reginald Terence James Davidson, those affidavits being sworn on 3 June 2008, 23 May 2011 (the “Davidson Discovery Affidavit”) and a further formal affidavit sworn on the same date, 23 May 2011.

6    The Davidson Discovery Affidavit states that in the period 1 January 2005 to 9 January 2007 there were several hundred companies related to The Interpublic Group of Companies Inc. As at 2010, companies within that Group operated in over 100 countries and employed over 41,800 marketing professionals. Mr Davidson also deposes to the applicant’s employment in that period only with the first respondent and, further, that the applicant worked in the Universal McCann Division of the McCann Worldgroup Pty Ltd at a time when the McCann Worldgroup Pty Ltd was split into two separate operating divisions known as Universal McCann and McCann Erickson.

7    Mr Davidson also deposes to the sources that would need to be searched and he refers to time estimates for making those searches.

The categories – general consideration

8    I turn now to the seven remaining categories which I reproduce and consider in turn. The parts marked underlined or deleted show the differences between the orders originally sought and the version handed up at the hearing.

9    I have assessed the merits of each category as it is framed. It is not the Court’s task to read the expressions used in the categories in other than their plain meaning. Similarly, it is not the Court’s task to recast the categories. As Tamberlin J said in KGL Health Pty Ltd v Mechtler [2008] FCA 273 at [9] in relation to the facts of that case:

. . . I am of the view that the proposed classes of discovery, as presently framed, are too wide and at times not relevant, and therefore an order for discovery in those terms is not warranted. With some suitable modification, it may be that the classes could be more specifically stated to eliminate the objectionable expressions. . . . This is a matter to be resolved between the parties.

10    The applicant submitted that the Federal Magistrates Court is not a court of strict pleading. It is not clear to me that this is so across the entirety of that Court’s jurisdiction. For example, a “Notice to Litigants and Practitioners” in that Court states:

The grounds of an application must explain briefly the basis on which the orders are sought. In most instances the use of an application and affidavit will negate the need for pleadings but, where appropriate, pleadings will be ordered. This is particularly so in . . . some complex unlawful discrimination applications. In such instance an applicant may attach a pleading by way of points of claim. Such a pleading should observe the requirements of Federal Court Rules, Orders 11 and 12. It should identify in summary form the material facts on which the applicant relies, but not the evidence by which those facts are to be proved. All necessary particulars must be given.

I have not however found it necessary to take any strict view of the Amended Points of Claim in disposing of this application.

11    I also make this further preliminary observation. Contrary to the submissions of the applicant, I do not regard the concept of “reasonable search” in O 15 r 2 of the Federal Court Rules as an answer to the framing of categories which are too wide. The former concept applies to relevantly drawn categories: it is not an excuse for insufficiently rigorous identification of the issues or the imprecise articulation of proposed categories. To adopt the applicant’s approach would not further the just resolution of disputes according to law nor that that resolution be done as quickly, inexpensively and effectively as possible. I accept however that “reasonable search” may, in a particular case, be relevant to oppression: see Galati v Potato Marketing Corporation of Western Australia (No 2) [2007] FCA 919 at [59].

The categories – specific consideration

Category 1(a) - any email communications that have not yet been discovered by the Respondents between the officers, employees, agents, legal advisers, financial advisers and/or other representatives of the First Respondent and any related body corporate of the First Respondent, including but not limited to The Interpublic Group of Companies, Inc, from 1 January 2005 to 9 February January 2007 regarding any complaints regarding the subject matter of these proceedings raised with or made to the First Respondent by the Applicant.

12    This category is now agreed between the parties. I shall make an order in those terms.

Category 1(b) – any email communications that came into existence from 1 January 2004 to 9 February 2007 that have not yet been discovered by the Respondents between the First Respondent and/or its officers, employees, agents, legal advisors, financial advisers and/or other representatives of the First Respondent or any one of them and/or between the First Respondent and/or its officers, employees, agents, legal advisers, financial advisers and/or other representatives of the First Respondent or any one of them and the Applicant about maternity leave, parental leave and part-time and/or other flexible work arrangements for other employees of the First Respondent.

13    I note that this category, as framed, is concerned with internal communications (emails) within, broadly, the first respondent and also with communications between the first respondent and the applicant about leave and work arrangements for other employees of the first respondent. I understood the applicant to have accepted in argument that it was not intended to cover all internal communications but only those between the first respondent and its representatives on the one hand and the applicant on the other hand and that the paragraph therefore contained surplus words.

14    The first respondent’s opposition to this category was based on relevance and oppression.

15    I note that even reading this category as limited to email communications, the period now covered is some 3 years. I also note that the communications are not limited to complaints. Further, the “other employees” are not identified in the proposed category. I also note that the communications in question are not confined in terms to the flexible working arrangements the subject of the proceedings.

16    More broadly, I am not persuaded that communications between the first respondent and the applicant about certain work conditions of (all) other employees bears on the issues in the case.

17    I also take into account the time and associated cost matters deposed to by Mr Davidson although at the date of his affidavit there was no limitation as to time in this category.

18    Having regard to the issues in the proceedings, I shall not exercise my discretion to order production as sought in paragraph 1(b).

Category 1(c) – documents evidencing the actual or proposed remuneration (including salary, superannuation, bonuses, incentives and other work related non-cash benefits) of Henry Tajer in the period from 9 February January 2007 to date.

19    This category was opposed by the first respondent on the basis of relevance. It was the applicant’s submission that the documents are relevant to the applicant’s claim for loss and damage consequent to a positive finding of a basis for such relief. The applicant said that Mr Tajer has been identified by the applicant as being an individual in the first respondent’s organisation at the time that the alleged conduct was engaged in whose circumstances were most closely aligned to the applicant, in terms of position within the organisation. The applicant alleges that the appointment of Mr Tajer sidelined her within the organisation and also that on his appointment he was provided with greater benefits than her, whilst both were at the same level.

20    As drafted, category 1(c) includes pay slips, superannuation forms, tax documentation, etc, for a period of some four and a half years. I am not persuaded either that the broad category is warranted or that all those documents are necessary.

21    I also note that the category refers to documents evidencing the proposed remuneration of Mr Tajer in that period.

22    Lastly, on this category, I note that it was submitted by the first respondent that the applicant has been provided by it with a copy of Mr Tajer’s contract of employment, a salary increase letter and a contract variation letter following his commencement of employment, as part of discovery.

23    I will not exercise my discretion to order discovery in the terms sought in proposed order 1(c).

Category 1(d) – the financial reports of the First Respondent and its related bodies corporate for the financial years commencing 1 July 2005 and 1 July 2006 the statutory reports of the First Respondent for the financial years ending 31 December 2005 and 31 December 2006 and the profit and loss statements for the Universal McCann Division of the First Respondent for this period.

24    This category is now agreed between the parties. I shall make an order in those terms.

Category 1(e) – documents regarding the financial performance of the First Respondent and/or its related bodies corporate that refer to and/or evidence and/or record the payment and/or calculation of any bonuses or other incentive payments paid to Henry Tajer and/or Jeff Cressall in the period from 1 July 2006 to date.

25    The applicant submitted that documents within this category are relevant to the applicant’s claim for loss and damage consequent to a positive finding of a basis for such relief. I have set out above what is said about Mr Tajer. In relation to Mr Cressall, the applicant alleges that the decision to appoint him over her is based upon unlawful discriminatory conduct, or was affected by it. It is also alleged that it was an implied term of her contract of employment that the applicant would be entitled to a bonus for any year in which the first respondent exceeded its profit goals.

26    The first respondent disputes the relevance of the remuneration of other employees as relating to a matter in question. The first respondent submits that what is sought in this category is quite different to what is pleaded.

27    I do not decide this application on the basis of the present irrelevance of all aspects of Mr Cresall’s or Mr Tajer’s remuneration. However, I regard the reference to “the financial performance”, the further reference to “related bodies corporate” and the reference to those documents that refer to and/or evidence the payment or calculation of bonuses or other incentive payments made to Mr Tajer and Mr Cressall as much wider than appropriate or necessary.

28    It also appears to me that in relation to Mr Tajer there is an unnecessary overlap between this category and category 1(c) above.

29    I will not exercise my discretion to order discovery in terms of proposed category 1(e).

Category 1(f) – documents relied upon and/or utilised by the First Respondent and/or its related bodies corporate to determine or calculate any bonuses or other incentive payments provided to Henry Tajer and/or Jeff Cressall in the period from 1 July 2006 to date.

30    The applicant put forward this category on the same basis as categories 1(c) and 1(e). The first respondent responded to this paragraph in the same way as to those paragraphs.

31    I would not discount relevance at the level at which the first respondent appears to. In my view there may be some relevant documents within the broad category but, having said that, the category is too broad as it seeks discovery of all documents. It refers also to related bodies corporate, and seems to require the discovery of all calculation sheets and inputs into calculation sheets.

32    There is also an unnecessary overlap between categories 1(c), 1(e) and 1(f) in relation to Mr Tajer and between categories 1(e) and 1(f) in relation to Mr Cressall.

33    I will not order discovery in terms of this category.

Category 1(g) – at least one document that records the number of contractors that the First Respondent engaged during the period from 1 May 2002 to the date of commencement of the proceedings.

Category 1(h) – at least one document that records the number of males and females engaged as contractors by the First Respondent during the period from 1 May 2002 to the date of commencement of the proceedings.

34    The applicant submitted that the documents the subject of these categories are relevant to the allegations made in paragraphs 13 to 15 of the amended points of claim. As I understand those paragraphs, they allege statements about part-time employees or part-time work for women returning from maternity leave and allege that it was stated on behalf of the first respondent that in future it would only have full time employees on its payroll.

35    The first respondent made the short point that the issue of contractors appears not to have any bearing at all on the applicant’s claim. I agree. In my opinion, the terms of paragraphs (g) and (h) are not sufficiently related to the paragraphs of the amended points of claim to which the applicant refers and I would not exercise my discretion to order discovery in those terms. Even if it could be established that, by correspondence or otherwise, the parties had a common understanding of what the word “contractors” meant in this context, the word is insufficiently precise to be used in an order in the present context.

36    I will not exercise my discretion to order discovery in terms of proposed categories 1(g) or 1(h).

Category 1(i) – documents created in the period from1 May 2002 January 2003 to 9 February 200731 December 2006 that record, refer to or otherwise evidence complaints made by, disputes with and/or issues raised by employees of the First Respondent in relation to the parental and/or maternity leave policy, discrimination, redundancy or the treatment of women in the employ of the First Respondent, but excluding any documents that are of an administrative nature.

37    The applicant submits that the documents in this paragraph relate to the question of indirect discrimination by the first respondent against certain female employees as pleaded in paragraphs 55 and 56 of the amended points of claim.

38    Paragraph 55 alleges that the respondent imposed a condition, requirement or practice that employees of the respondent, including the applicant, work full time. Paragraph 56 alleges that the respondent’s stated views on part-time employees and women with carer’s responsibilities created a hostile work environment for women. Further reference is made to paragraphs 13 to 15 of the amended points of claim to which I have referred above.

39    The first respondent objects to this discovery category on the basis of relevance, that it constitutes a fishing exercise and is oppressive.

40    As to oppression, I note Mr Davidson states in his affidavit that in the period originally nominated in this proposed category, 1 May 2002 to 9 February 2007, the first respondent employed 1,246 persons and a number of them took paid and/or unpaid parental leave in the same period.

41    Mr Davidson also states that in the period 1 January 2004 to 9 February 2007 the first respondent relevantly employed no dedicated human resources personnel other than a payroll officer. More importantly, the first respondent did not, in that period, keep any centralised records of complaints.

42    I accept, although put at a level of generality, that searches of personnel files, historical emails and other electronic data files would be difficult, time consuming and costly.

43    As to relevance, the documents referred to in this category appear to me to be far wider than documents relating to the subject matter of the proceedings. This operates in various ways.

44    First, in my view, complaints made, disputes raised and issues raised are insufficiently related to the issues in the proceedings. Second, “parental . . . leave policy”, “maternity leave policy, discrimination, redundancy or the treatment of women in the employ of the first respondent” are, at that level of generality, also insufficiently related to the issues in the proceedings. Third, the expression “record, refer to or otherwise evidence” is similarly too broad.

45    I also do not accept that the addition of the phrase “but excluding any documents that are of an administrative nature” cures these defects. Indeed that phrase has difficulties of its own and is not an expression appropriate for an order for discovery, at least in this case. The parties may know what they mean by the phrase but it is not evident.

46    The applicant relied on Hendrickson v Yarra Bay 16 ft Skiff Sailing Club Ltd [2011] NSWADT 37 but that decision cannot assist with the terms of the allegations in the present case. Here “the hostile work environment” is alleged to have been created by “[t]he Respondent’s stated views on part-time employees and women with carer’s responsibilities”.

47    On these bases I will not exercise my discretion to order discovery in the terms sought in this category. In so deciding I do not find it necessary to grapple with the slippery metaphor of “fishing” in the context of contemporary practice and procedure.

Orders

48    In relation to each remaining contentious category, I am not deciding that there are no documents that would or might be relevant. However, as I have said above, it is not part of the Court’s task to redraft the categories so as to identify with precision or delineate what those documents or classes or categories may be. I am dealing with the categories as framed. It is for the applicant and her legal advisers to identify what material is likely to be relevant to an issue in the proceedings and to frame a category accordingly. What appears to have happened here is that the categories have been written at a level of generality where the most that could be said is that there may be some relevant material within the category but otherwise the category is too generally expressed and is therefore insufficiently relevant to issues in the proceedings.

49    For these reasons I dismiss the applicant’s application for discovery in categories 1(b) to (c) and 1(e) to 1(i).

50    In relation to costs, the order I make is that the costs of the motion be costs in the cause.

51    In matter NSD 451 of 2011 the parties are agreed on the following category and requested that an order to be made in these terms:

1.    That the First and Second Respondents provide discovery within 14 days of the documents identified in paras 2, 3, 6, 7, 8 and 9 of the List of Categories to be discovered by the Respondents dated 3 September 2010 being annexure “J” to the Affidavit of Sandra Marks sworn on 1 April 2011, plus;

•    Documents evidencing, recording or referring to the communications which took place during the conciliation of the Applicant’s complaint on 22 January 2008 before the Australian Human Rights Commission; and

•    Documents evidencing, recording or referring to the communications which took place at a dinner that occurred on 29 March 2008, at which the Second Respondent was present.

52    Since those categories are agreed I shall make an order in those terms.

Associate:

Dated:    7 June 2011