FEDERAL COURT OF AUSTRALIA

Balaev v University of Adelaide [2016] FCA 278

ORDERS

THE COURT ORDERS THAT:

1.    The respondent provide further discovery in relation to the documents or categories of documents as follows:

(a)    All email communications and other correspondence between staff in the respondent’s HR Department (hereafter “HR”) and staff in the Department of English and Creative Writing concerning the management of the respondent’s concerns surrounding the applicant’s employment, performance and conduct;

(b)    Workload Model for 2015;

(c)    All individual SELTS (Student Experience of Learning and Teaching Evaluation) forms submitted by students in the classes of the applicant, and the SELTS Report in the form received by staff at the completion of a course;

(d)    Documents relating to inductions undertaken by the applicant;

(e)    The respondent’s recording of the lecture presented by the applicant on 12 May 2015.

2.    The interlocutory application dated 19 February 2016 be otherwise dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BESANKO J:

Introduction

1    This proceeding is set down for trial on 11 April 2016 with five days set aside. On 1 October 2015, I made an order that each party make standard discovery. On 23 October 2015, the respondent filed and served a List of Documents verified by an affidavit. The List of Documents identifies 249 documents or categories of documents in Part 1 of the schedule of documents. On 3 December 2015, the respondent filed a supplementary list of documents verified by affidavit. On 4 December 2015, the applicant’s solicitors wrote to the respondent’s solicitors identifying what the applicant contended were deficiencies in the respondent’s discovery. On 21 December 2015, the respondent’s solicitors responded to that letter. On 19 February 2016, the applicant filed and served an interlocutory application in which she sought an order for further discovery in terms of two annexures to the interlocutory application. The first annexure, Annexure A, identified 19 categories of documents (with some sub-categories). The second annexure, Annexure B, identified further categories of documents by reference to the discovery which had been made by the respondent. The applicant’s interlocutory application was supported by an affidavit of her solicitor sworn on 19 February 2016.

2    On 1 October 2015, I also made orders that each party file and serve affidavits containing their evidence-in-chief. On 30 October 2015, the applicant filed and served her affidavits, and between 20 November 2015 and 25 November 2015, the respondent filed its affidavits.

3    These reasons deal with the disposition of the applicant’s interlocutory application.

The Applicant’s Claim

4    The applicant’s claim is identified in her Amended Statement of Claim.

5    The applicant was employed by the respondent as a Lecturer (Level B) Academic in the School of Humanities from 2 February 2015 to 9 July 2015. The respondent is a body corporate established under the University of Adelaide Act 1971 (SA) and is capable of suing and being sued in its own right. The applicant alleges that until 31 December 2014, she was an employee of the Washington State University, and that prior to her employment by the respondent, she had approximately 17 years’ experience as a teacher and research academic in the Northern American tertiary education sector.

6    It is common ground that there was an employment agreement between the applicant and the respondent. The applicant alleges that by virtue of a clause in the employment agreement, the provisions of the University of Adelaide Enterprise Agreement 2014 – 2017 were incorporated into the agreement.

7    The applicant alleges that before she entered into the employment agreement, six representations were made to her by employees or agents of the respondent about the position she was being offered and the support which she would receive from the respondent. I do not need to set out the details of those representations because they are not central to the present application. The applicant alleges that the representations constituted misleading or deceptive conduct by the respondent within the Australian Consumer Law which is Schedule 2 to the Competition and Consumer Act 2010 (Cth) and that she suffered loss and damage as a result of that conduct.

8    During the course of her employment by the respondent, the applicant considered that her workload was excessive and on or about 27 February 2015 she, or the National Tertiary Education Union on her behalf, lodged with the respondent a Notice of Dispute pursuant to cl 8.5 of the Enterprise Agreement, and that Notice of Dispute related to a workload allocation issue. On or about 24 March 2015, the applicant told the respondent that she intended to file a Grievance regarding the workload allocation issue in accordance with the respondent’s Staff Complaints Policy and cl 8.4 of the Enterprise Agreement.

9    In early May 2015, the respondent, through its employees and agents, took steps which ultimately led to the termination of the applicant’s employment because of alleged poor performance and misconduct (the applicant’s case) or because the applicant was unsuited to the position by reason of her performance and conduct (the respondent’s case). At the end of a process identified in the Amended Statement of Claim, the Vice Chancellor of the respondent made a decision on 9 July 2015 that the applicant’s employment by the respondent be terminated. There is a challenge by the applicant to the Vice Chancellor’s power to make that decision, but as it is not central to the present application, it is not necessary to set out the precise details of that challenge.

10    The applicant alleges that the termination of her employment agreement was in breach of the agreement and of s 50 of the Fair Work Act 2009 (Cth). The applicant also alleges that she was dismissed by the respondent because she exercised or proposed to exercise workplace rights. The workplace rights which she identifies in her Amended Statement of Claim are as follows:

(1)    An entitlement to the benefit of a workplace instrument being the Enterprise Agreement;

(2)    The right to be able to initiate and participate in the processes set out in the Enterprise Agreement, including in relation to dispute resolution (cl 8.5), staff grievances (cl 8.4) and probation, tenure and confirmation of employment (cl 2.5); and

(3)    The right to be able to make a complaint or inquiry in relation to her employment.

11    The applicant alleges that she has suffered loss and damage, being a loss of income and other employment entitlements which would otherwise have been payable to her, and hurt and humiliation.

12    As to the recommendations to terminate the applicant’s employment and the termination of the applicant’s employment, the respondent alleges as follows:

…

34.    As to paragraph 34 of the Statement of Claim, the Respondent says that the recommendation to terminate the Applicant’s employment was because she was unsuited to her position by reason of her performance and conduct.

Particulars

A.    Dr Balaev:

1.    failed to meet the University’s expectations of her in conducting seminars;

2.    ignored correspondence from students enrolled in courses she had been allocated to teach;

3.    disregarded the chain of authority within the University;

4.    made unreasonable requests of her colleagues;

5.    displayed disrespectful and discourteous behaviour to her colleagues;

6.    failed to respond to reasonable requests made by colleagues; and

7.    did not follow instructions as to the process for marking assignments.

B.    Further particulars are contained in the letter from the Deputy Vice Chancellor to the Vice Chancellor dated 8 May 2015.

…

41.    The Respondent denies paragraph 41 of the Statement of Claim.

A.    Further or in the alternative the Respondent was entitled to terminate the Applicant’s employment without notice because she had engaged in conduct of a kind such that it was unreasonable to require the Respondent to continue her probationary employment.

1.    clause 2.5.2.6(e) of the Enterprise Agreement;

2.    the Applicant demonstrated incompetence as a teacher and as a marker of student assignments;

3.    the Applicant’s intimidating behaviour towards Madeleine Seys which caused Ms Seys to become fearful of Dr Balaev;

4.    the Applicant’s refusal to take instruction and her non-collegiate conduct which caused a disharmonious workplace;

5.    the Respondent repeats the particulars set out at paragraph 34 above;

6.    by reason of 41A.2 to 41A.5, continuing to employ the Respondent would have been unfairly prejudicial to the students, risked damaging the University’s reputation, detrimental to the orderly running of the English and Creative Writing Department and created a likelihood of academics resigning from the Department.

The Issues on the Application

13    By the order for standard discovery, the respondent was required to give discovery of documents that are directly relevant to the issues raised by (relevantly) the pleadings (r 20.14(1)(a) of the Federal Court Rules 2011 (Cth)). Documents are directly relevant if they meet at least one of the following criteria:

(a)    the documents are those on which the party intends to rely;

(b)    the documents adversely affect the party’s own case;

(c)     the documents support another party’s case;

(d)    the documents adversely affect another party’s case.

(r 20.14(2)).

14    The applicant contends that the respondent has not given discovery in accordance with r 20.14.

15    The applicant also relies on r 20.21, particularly in relation to the categories of documents identified in Annexure B to her application. That rule provides as follows:

(1)    If a party (the first party) claims that a document or category of documents may be or may have been in another party’s control (the second party), the first party may apply to the Court for an order that the second party file an affidavit stating:

(a)    whether the document or any document of that category is or has been in the second party’s control; and

(b)    if the document or category of documents has been but is no longer in the second party’s control – when it was last in the second party’s control and what became of it;

(2)    The first party seeking an order under subrule (1) must identify the document or category of documents as precisely as possible.

The Documents or Categories of Documents Identified in Annexure A

16    Annexure A identifies 19 documents or categories of documents. The applicant does not press for an order in relation to the categories identified in paragraphs 13 and 14. During the course of submissions, the respondent said that it would consent to an order in relation to the categories identified in paragraphs 4, 10, 12 and 17. It also indicated that it would consent to an order in terms of the category identified in paragraph 2 if the description of the category was altered to read as follows:

All email communications and other correspondence between staff in the Respondent’s HR Department (hereafter “HR”) and staff in the Department of English and Creative Writing concerning the management of the Respondent’s concerns surrounding the Applicant’s employment, performance and conduct.

17    The applicant submits that there is sufficient evidence before the Court to establish that the respondent has misunderstood or misapplied the concept of “directly relevant” in making discovery. She relied on three examples to support that proposition.

18    In the respondent’s List of Documents, there is a category of documents described as “Emails between Jean Fornasiero and Amanda Nettelbeck regarding office hours” and stated to be for the date or period 25 March 2015. The respondent’s solicitors addressed this category in their letter dated 21 December 2015 stating that Professor Fornasiero provided a response to Ms Larraine Sandford dated 25 March 2015. The respondent’s solicitors said that in their view the communication was not directly relevant. Nevertheless, they provided a copy of the document to the applicant.

19    In the respondent’s List of Documents there is a category of documents described as “Emails between Mandy Treagus, Amanda Nettelbeck and Jean Fornasiero regarding today’s discussion” and stated to be for the date or period 27 April 2015. In their letter dated 21 December 2015, the respondent’s solicitors state that Professor Fornasiero forwarded an email to Mrs Sandford dated 27 April 2015. They stated their view that the communication was not directly relevant. Nevertheless, they provided a copy of the document to the applicant.

20    In the respondent’s List of Documents, there is a category of documents described as “Email from Michelle Balaev to Amanda Nettelbeck regarding phone time” and stated to be for the date or period 3 May 2015. In their letter dated 21 December 2015, the respondent’s solicitors state that Professor Fornasiero forwarded an email from Mandy Treagus to Ms Sandford on 30 April 2015. They provided a copy of the document to the applicant.

21    In terms of these particular documents and similar documents involving the Human Resources Department of the respondent, it seems to me that the short answer to the applicant’s submissions is that the documents will now be discovered by reason of the respondent’s consent to an order in terms of the category identified in paragraph 2 as amended above.

22    The issue remains whether these examples establish that the respondent has misunderstood or misapplied the concept of directly relevant to the point where I should make an order in terms of the other categories of documents identified in Annexure A. I do not think that they do. The respondent’s discovery is extensive and is made on oath. Furthermore, some of the categories of documents in Annexure A are so broad as to suggest that the whole discovery process by the respondent be revisited. The best example of this is the categories in paragraph 1 of Annexure A which are as follows:

1.    All correspondence (including the chains of email communications in complete and unredacted form and minutes, file notes or other records of any other communications) between staff members of the Respondent (including staff in the faculty of English, staff in the HR Department of the Respondent and executive staff including Shaw, Quester and Bebbington) and relating to:

1.1    the consideration of the Applicant for employment with the Respondent (including all correspondence between members of the Selection Committee);

1.2    the negotiations regarding the Applicant’s salary;

1.3    the offer of employment to the Applicant and the terms and conditions of the offer of employment;

1.4    the teaching plans and course and class allocations for the Applicant;

1.5    the relocation, travel and other costs associated with the Applicant’s relocation from the United States of America to Australia to take up the position;

1.6    any complaints or inquiries made by the Applicant to the Respondent both before and after commencement of the employment as set out at paragraph 25 of the Statement of Claim filed on 14 September 2016 [sic] and in the Affidavit material;

1.7    the Notice of Dispute referred to at paragraph 26 of the Statement of Claim;

1.8    the foreshadowed grievance referred to at paragraph 27 of the Statement of Claim;

1.9    the response of the Respondent to the complaints and inquiries made by the Applicant;

1.10    actions considered and taken by the Respondent’s staff to facilitate the termination of the Applicant’s employment;

1.11    the issues of performance and conduct of the Applicant as referred to in:

1.11.1    the Recommendation of Termination dated 7 May 2015;

1.11.2    the Defence of the Respondent filed on 14 October 2015; and

1.11.3    the Affidavits of the Respondent’s staff as filed over the period 20 November 2015 to 25 November 2015.

23    Bearing in mind that discovery is no longer given in accordance with the broad “train of inquiry” test, I am not satisfied that the applicant has established that I should make an order for further discovery in terms of the disputed categories in Annexure A.

The Documents or Categories of Documents Identified in Annexure B

24    The structure of Annexure B is as follows. The annexure contains 60 requests. Each request relates to a particular document or particular documents which have been discovered. Those documents are annexed to the affidavit of the applicant’s solicitor. Under a section entitled “Further Discovery Required” there is a description of the categories of documents of which further discovery is sought. By reference to the document discovered, the applicant claims that there are or may be further documents of which discovery should be made.

25    In his response, counsel for the respondent did not address the 60 requests in Annexure B. Instead of doing that, he took some examples of Annexure B and made submissions with respect to those examples. Request number 1 relates to the diary notes of Professor Fornasiero. The applicant complains that only limited extracts of those diary notes have been provided, including an entry for 7 April 2015 relating to the preparation by Professor Fornasiero for a meeting with the applicant on 10 April 2015, and an entry for 10 April 2015 for a meeting between the applicant, Professor Fornasiero and a Mr Porter. One of the categories of documents sought in relation to this request are Mr Porter’s notes in preparation for the meeting, notes taken during the meeting and any notes made after the meeting. Counsel for the respondent informed me that typed written notes of Mr Porter had been discovered and that for a reason he gave and which I accept, there are no handwritten notes of Mr Porter.

26    Counsel also referred to the fourth request which related to an email from Professor Fornasiero to Ms Georgina Deally dated 6 January 2015. The email has been discovered, but the applicant complains that no response has been discovered. The applicant seeks discovery of all communications between Professor Fornasiero and Ms Deally regarding accommodation arrangements for the applicant. Counsel for the respondent pointed out that the email from Professor Fornasiero to Ms Deally did not seek a response.

27    Counsel for the respondent also referred to the fifth request which related to an email from Professor Fornasiero dated 9 December 2014 wherein Professor Fornasiero said that there had been a request for quotes relating to relocation expenses on prior occasions. The applicant seeks all requests made to her regarding quotes and relocation arrangements before 9 December 2014. Counsel for the respondent said that all requests for quotes had been discovered and he submitted that the onus was on the applicant to show that there were reasonable grounds to think that there were further documents which had been discovered and that the applicant had not discharged that onus.

28    I will not set out my conclusions in relation to each of the 60 requests and the over 200 categories of documents set out in Annexure B. It seems to me that the answer to a number of the requests are as follows.

(1)    Some of the requests are, in my opinion, plainly fishing, and I refer by way of example to request number 8 and document R57, and request number 58 and document R179;

(2)    Some of the requests are based on the premise that it is likely there is written communication in circumstances where it is just as likely that there was an oral communication, and I refer by way of example to request number 26 and document R99, and request number 52 and document R167;

(3)    Some of the requests are based on the premise that there is likely to be a response when there is no particular reason to think that there would be a response, and I refer by way of example to request number 4 and document R38, request number 7 and document R55, and request number 25 and document R95;

(4)    Some of the requests will now be met by the order made in relation to paragraph 2 of Annexure A, and I refer by way of example to request number 16 and document R105, and request number 35 and document R134;

(5)    Some of the requests are premised on the notion that there is or is likely to be a response and that response is or is likely to be directly relevant when the latter proposition is far from clear, and I refer by way of example to request number 11 and document R64, and request number 15 and document R77.

29    I will not make the order sought in relation to Annexure B.

Conclusion

30    I will make an order in terms of the paragraphs in Annexure A which have been conceded by the respondent. The interlocutory application dated 19 February 2016 is otherwise dismissed.

Associate:    

Dated:    22 March 2016