Federal Court of Australia

Brown v Deloitte Touche Tohmatsu (A Partnership) (No 2) [2021] FCA 425

ORDERS

THE COURT ORDERS THAT:

1.    The first respondent give discovery of all documents within the categories set out in Annexure A to these orders by serving a list of documents in accordance with rr 20.16 and 20.17 of the Federal Court Rules 2011 (Cth) on the applicant within 21 days.

2.    The first respondent provide to the applicant the particulars sought in the following paragraphs of the letter from Harmers Workplace Lawyers to Holding Redlich dated 19 March 2021 within 7 days, namely paragraphs 1(a), 1(e), 1(f), 2, 3(a), 4(a), 4(c) and 4(d).

3.    The first respondent’s interlocutory application filed on 26 March 2021 to set aside subpoenas to produce documents is dismissed.

4.    The notice to produce filed by the applicant on 4 March 2021 addressed to the first respondent is set aside.

5.    The costs of the applicant’s interlocutory application filed on 26 March 2021 for discovery and further particulars and the first respondent’s interlocutory applications filed on 26 March 2021 to set aside subpoenas to produce documents and the applicant’s notice to produce are reserved.

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

Annexure A

1    All Documents that record any practice of the first respondent to discuss with each partner the possibility of their retirement from the partnership by 31 May following their reaching the age of 62 created or dated from 1 June 2013 onwards.

2    All Documents that record any policy, or requirement or expectation of the first respondent that partners of the first respondent will retire following reaching the age of 62 created or dated from 1 June 2013 onwards.

3    Any agreement(s) made between the first respondent and a Relevant Retired Partner recording the terms of the Relevant Retired Partner’s retirement, resignation or expulsion from the first respondent partnership.

4    Copies of all Communications between:

(a)    on the one hand, anyone on behalf of the first respondent; and

(b)    on the other hand, each Relevant Retired Partner,

about the Relevant Retired Partner’s proposed or actual retirement, resignation or expulsion from the Deloitte partnership.

5    Copies of all Communications between:

(a)    on the one hand, anyone on behalf of the first respondent;

(b)    on the other hand, each Relevant Retired Partner,

about the possibility or fact of the Relevant Retired Partner’s continued engagement with or by the first respondent following their reaching the age of 62 in a capacity other than as a partner.

6    Any one or more Document that records the partner(s) invited to the “Personal Strategic Planning Program Meeting” in the years 2013, 2014, 2018, 2019, 2020 and 2021.

7    Copies of all Communications between:

(a)    on the one hand, any of Mr Jamie Gatt, Mr David Murray, Ms Felicity Woodward, Mr Richard Deutsch and/or Mr Rob Dowling; and

(b)    on the other hand, any partners or employees of the first respondent (including the individuals in (a)),

(1)    between 1 January 2019 and 30 June 2019 about the applicant’s proposed, expected or potential retirement or departure from the first respondent partnership, including, but not limited to all Communications dealing with removing the applicant’s name from the list of non-equity partners on the EPIC website, and/or marking the applicant’s partner page on the EPIC website as inactive; and

(2)    after 1 January 2019 about ceasing, reversing or no longer giving effect to the applicant’s proposed, expected or potential retirement or departure from the first respondent partnership.

DEFINITIONS

Document means “document” as defined in Schedule 1 of the Federal Court Rules 2011 (Cth).

Communications means emails, letters, SMS messages, faxes, file notes or records of any communications, including notes, memoranda and file notes, including any Electronic Materials.

Electronic Materials means electronic files, materials and data either created or stored electronically.

Relevant Retired Partner means each partner of the First Respondent who retired, resigned or was expelled from the First Respondent partnership within 24 months of turning 62 years of age in the years 2013, 2014, 2018, 2019, 2020 and 2021.

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    There are three interlocutory applications before me.

2    The applicant seeks orders for discovery of documents in eight categories and for further particulars to paragraph 19 of the respondents’ defence.

3    The first respondent seeks to set aside a notice to produce served on it by the applicant before he filed the application for discovery. The applicant’s position is that he applied for discovery only after the first respondent objected to his notice to produce and if he gets the discovery orders he will not press the notice to produce.

4    The first respondent also seeks to set aside five subpoenas that I authorised in chambers on the applicant’s application. The subpoenas are for the production of documents and are addressed to strangers to the litigation, i.e., not to either of the respondents.

5    To decide the applications it is necessary first to identify the relevant features of the dispute and the progress of the proceeding.

The dispute

6    The applicant’s claims relate to the circumstances in which he left his position of Risk and Reputation at Deloitte Onch Audit LLC, based in Mongolia, and, on 16 June 2014, entered into a deed whereby he became a non-equity partner (or salaried partner) of the first respondent, Deloitte Touche Tohmatsu, in Australia. The second respondent is pleaded to be a partner of the first respondent and its chief executive officer.

7    The material circumstances of the applicant leaving Deloitte Onch and joining the first respondent as a partner include that he was at that time 58 years of age and, unbeknownst to him, the first respondent has had – as asserted by him – a retirement policy since about November 2013 that requires partners to retire in or around May following their 62nd birthday.

8    The applicant’s original statement of claim asserted five causes of action, but following a strike-out application brought by the respondents one of those causes of action was no longer pressed and another was struck out as explained in Brown v Deloitte Touche Tohmatsu (A Partnership) [2020] FCA 1747.

9    The three causes of action that remain are the following:

(1)    a claim of misleading and deceptive conduct under s 18 of the Australian Consumer Law (ACL) as found in Sch 2 to the Competition and Consumer Act 2010 (Cth) relating to alleged "longevity representations" made by the first respondent prior to the applicant joining it as a partner;

(2)    a claim of direct discrimination under s 14 of the Age Discrimination Act 2004 (Cth) (AD Act) of the applicant by the first respondent during his ongoing tenure as a partner; and

(3)    a claim of victimisation under s 51 of the AD Act against both the first respondent and the second respondent relating to a conversation between the applicant and the second respondent.

10    At the heart of the applicant’s first two causes of action is the following contention in paragraph 19 of the amended statement of claim:

In the period from about November 2013 until the Applicant became a partner of the First Respondent, the First Respondent had a policy that partners are required to retire in or around May following their 62nd birthday (the Retirement Policy), and it was likely that as a consequence of which, if the First Respondent decided that the Retirement Policy would be applied to him, the Applicant would be required or expected to retire as a partner in accordance with the Retirement Policy (the True Position Regarding Retirement).

11    The respondents' defence to that paragraph is as follows:

In response to paragraph 19 of the Claim, the First Respondent:

a.     says that in or around the period from November 2013 to June 2014:

i.     in the period up to a partner turning age 62, it was the practice of the First Respondent to discuss with each partner:

(a)     the possibility of their retirement from the partnership by 31 May following their reaching the age of 62; and

(b)     the possibility of their continuing engagement with the First Respondent following this time in a different capacity.

b.     says consistent with the practice referred to in subparagraph a above, no partner was expelled from the First Respondent under clauses 11.1 or 11.2 of the Partnership Agreement on account of age;

c.     says that the practice of the First Respondent referred to in subparagraph a above was the practice of the First Respondent as at or around January 2019;

   d.     says further that:

i.     the Applicant has not given notice of his intention to retire as a partner under clause 11.7 of the Partnership Agreement;

ii.     the Applicant has not been expelled as a partner of the First Respondent and has not been required or expected (in the sense of any obligation) to retire as a partner from the First Respondent; and

iii.     in the premises of subparagraphs i and ii above, the Applicant continues and will continue as a partner of the First Respondent; and

   e.     otherwise denies the allegations.

12    The applicant asserts, in paragraph 20 of the amended statement of claim, that neither the “retirement policy” nor the “true position regarding retirement”, as defined in his paragraph 19, or that he would be required or expected to retire as a partner on account of his age, were disclosed to him. Although the respondents dispute the applicant’s contentions with regard to the “retirement policy” and the “true positon regarding retirement’ as set out in paragraph 19 of the defence, they admit in paragraph 20 of the defence that the applicant was not informed of these matters prior to joining the partnership.

The progress of the proceeding

13    Recent developments in the proceeding which reflect the stage that it has reached include the following.

14    The respondents filed and served their defence on 5 February 2021 and the applicant filed and served a reply on 23 February 2021, with the result that pleadings are now closed.

15    On 5 March 2021, the applicant served on the first respondent the notice to produce that is at issue before me.

16    A few hours later on 5 March 2021, the matter came before me for case management. I directed the applicant to file and serve his lay evidence by 2 April 2021 (subsequently varied by consent to 9 April 2021) and to file and serve any expert evidence by 16 April 2021 (subsequently varied by consent to 30 April 2021).

17    At the case management hearing, counsel for the applicant said that the applicant had just served a notice to produce seeking “quite targeted documents going to the retirement policy” and that “the documents that come from that particular disclosure” might “lead us to wanting to put further people in evidence”. It was thus apparent that at least part of the purpose of the notice to produce was to identify potential witnesses for the applicant on the question of the retirement policy or practice.

18    There was also discussion about whether there should also be a timetable at that stage for the respondents to put on their evidence. It was ultimately resolved that the matter would be brought back for further case management after the applicant’s evidence was on, but that the respondents would be preparing their evidence in the meanwhile so that they would not require a lot of time to put on that evidence. It was also said that “any discovery or document issues that might have arisen in the meanwhile” would be able to be dealt with at that stage, i.e., at the case management hearing immediately after the applicant’s evidence was on. By that it is apparent that it was envisaged that some discovery or document issues might arise in the meanwhile and that they would not therefore necessarily be held over until after the respondents’ evidence.

19    On 9 March 2021, the applicant filed requests for the issue of the five subpoenas that are at issue before me. Those subpoenas were then issued on 11 March 2021 and subsequently sought to be served on the addressees.

20    On 19 March 2021, the applicant sought further particulars to paragraph 19 of the respondents’ defence by letter from his solicitors. I will return to the specifics of the particulars sought.

21    On 26 March 2021, the applicant filed and served his interlocutory application for discovery and further particulars after the first respondent had contended that the notice to produce was an improper substitute for discovery and it had not responded to the request for further particulars.

22    Also on 26 March 2021, the first respondent filed its interlocutory applications to set aside the notice to produce and the subpoenas.

23    On 9 April 2021, the applicant filed and served an affidavit deposed to by him as his lay evidence in chief in the principal proceeding.

24    To summarise, the applicant has served his lay evidence and his expert evidence is due within the week. The respondents will be directed to put on their evidence soon thereafter. There have thus far been no orders for discovery.

25    It is also worth observing at this stage that the applicant continues to be a partner of the first respondent notwithstanding that he and the first respondent are in litigation against each other. That circumstance alone means that it is highly desirable for this matter to progress as quickly as reasonably possible so that it can be resolved and the parties can know where they stand. That circumstance also means that this is a matter that is particularly suited to mediation. Such a mediation should accordingly also take place as soon as the proceeding has reached a stage that will be most conducive to a successful mediation.

26    I will now consider the interlocutory applications individually.

27    The issues raised by the three interlocutory applications, which were argued together, can most conveniently be grouped as follows:

(1)    the notice to produce and discovery;

(2)    the further particulars; and

(3)    the subpoenas.

28    I will consider these issues in turn.

The notice to produce and discovery

29    As the applicant’s principal contention is that he should have the orders for discovery that he seeks and in the event that he gets those orders he will not press the notice to produce, it is convenient to consider the question of discovery first.

30    The applicant seeks eight categories of documents by way of discovery which may be summarised as follows:

(1)    Categories 1 to 5 go to the question of the content of the “policy” or “practice” of the first respondent in relation to the retirement of partners approaching the age of 62. Categories 1 and 2 seek documents that “record” that practice or policy. Category 3 seeks agreements made between the first respondent and “relevant retired partners” who are defined as having “retired, resigned or were expelled” from the first respondent within 24 months of turning 62 years of age in the years 2013, 2014, 2018, 2019, 2020 and 2021. Category 5 seeks copies of communications between anyone on behalf of the first respondent, on the one hand, and each such relevant retired partner relating to their possible or actual continued engagement by the first respondent following their reaching the age of 62.

(2)    Category 6 seeks documents that record the names of partners invited to a “Personal Strategic Planning Program Meeting” in the years 2013, 2014, 2018, 2019, 2020 and 2021. The applicant’s evidence is that such a meeting is routinely held by the first respondent with the partners of the firm who are approaching the age of 62. The applicant says that documents that record those partners who attended such meetings, which relate to the partners’ pending retirement, are relevant to the existence and content of the retirement policy or practice. Disclosure of the names will also enable the applicant to investigate the circumstances of those former partners leaving the first respondent and thus the terms and application of any retirement practice or policy.

(3)    Categories 7 and 8 seek communications between partners or employees of the first respondent since 1 January 2019 that refer to the applicant’s proposed, expected or potential retirement or departure from the first respondent and that concern ceasing, reversing or no longer giving effect to the applicant’s proposed, expected or potential retirement or departure from the first respondent.

31    The first respondent opposes discovery orders on two bases.

32    First, the first respondent submits that it is premature to make discovery orders at this stage of the proceeding and that such orders should only be considered after the parties have completed service of their evidence. It says that it is then that the Court will be in a better and more informed position to determine whether the discovery order will “facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible” (with reference to MDXJ v Secretary, Department of Social Services [2020] FCA 1767 at [16] and the Central Practice Note: National Court Framework and Case Management (CPN-1) at [10.6]). The first respondent also says that the applicant has indicated that this application for discovery is an “initial” application and that discovery should not be approached on a piecemeal basis.

33    Secondly, the first respondent submits that the proposed categories for discovery do not facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible. In that regard the first respondent says that:

(1)    Categories 3 and 6 lack relevance and a proper forensic purpose;

(2)    Categories 1, 2, 7 and 8 are unnecessarily broad and unduly burdensome on the first respondent; and

(3)    Categories 4 and 5 lack relevance and a proper forensic purpose, and are unnecessarily broad and unduly burdensome on the first respondent.

34    CPN-1 at paragraph [10] sets out the Court’s general approach to discovery. Relevantly, there is nothing set out there or in Pt 20 of the Federal Court Rules 2011 (Cth), which governs discovery, that states when in the course of a proceeding discovery orders can or cannot, or should or should not, be made – save that r 20.13(3) provides that an application for discovery may not be made until 14 days after all respondents have filed a defence. The applicant’s application for discovery was brought long after that time. There is no default position, or predetermined expectation, that discovery should only take place after the parties’ evidence is on, or vice versa. Each case must be decided on its own circumstances.

35    As indicated, there is good reason why this matter should progress as quickly as reasonably possible. Moreover, pleadings have long closed and the applicant’s lay evidence is on. The respondents are already in the process of preparing their lay evidence. There is no reason why discovery orders should await their evidence, or why the Court will be in a better and more informed position to determine whether and what discovery orders should be made after the respondents’ evidence is on.

36    There is also no reason why the first respondent should not be able to prepare discovery and its evidence at the same time. Presumably, for the purpose of preparing its evidence it is already well advanced in the process of identifying documents relevant to its case. To the extent that such documents are identified and are intended to be included in its evidence, there is no prejudice attached if they are also captured by the discovery orders. To the extent that documents captured by any discovery orders are not intended to be included in the respondents’ evidence, they will in any event inevitably have to be discovered by the first respondent in due course.

37    The issues in dispute have been defined by the pleadings. I do not see – at least not in this case – how, the respondents’ evidence, once served, will materially affect the assessment of whether the applicant should have discovery of the categories that he seeks. It may be that the respondents’ evidence illuminates grounds for further categories of discovery, but there is no reason why such further discovery should not be dealt with if and when that issue arises. Also, discovery at this stage on the key question at the heart of the case may assist in the success of an early mediation.

38    In the circumstances, I reject the respondents’ contention that the applicant’s application for limited discovery at this stage is premature.

39    Insofar as the categories are concerned, each is directed at the issues at the heart of the dispute, namely the first respondent’s retirement policy or practice. In my view they are clearly relevant to the issues and have a justifiable forensic purpose.

40    Insofar as the question of burden is concerned, the first respondent relies on the affidavit of its solicitor who refers to what he has been informed by a partner of the first respondent who holds the position of “National Leader, Partner Services”, with regard to the heavy burden of having to discover the documents that are sought. In my view much of what he says about that burden can be dealt with by slight variations in the wording of the categories of discovery to narrow them down. Moreover, there is substance to the submission on behalf of the applicant that since the first respondent has itself pleaded a positive case with regard to its retirement practice it cannot now justifiably oppose the production of documents which are likely to be relevant to establishing whether or not that practice in fact exists, what its terms are and how it has been applied.

41    The first respondent also submits that the applicant did not properly or adequately engage with it in discussion about the proper timing and terms of discovery and that on that basis I should dismiss his application. The problem with that submission is that it applies equally to the attitude taken by the first respondent. When it received the applicant’s notice to produce, it did not engage in a discussion with regard to what it could produce with relative ease and what was most appropriate or justifiable. Instead, it rejected the notice to produce out of hand as an abuse of process; it made no counter proposal with regard to discovery.

42    The short point is that although the applicant might be criticised for having resorted to the formal processes of the Court, being the notice to produce and then an interlocutory application for discovery, before having engaged in a meaningful discussion about when discovery should take place and what should be discovered, the first respondent responded in an essentially formalistic and recalcitrant way which did not serve to narrow the issues in dispute or progress the proceeding towards resolution. To dismiss the applicant’s application on the basis of the criticism levelled against him would be unfair, serve no purpose and be wasteful of the Court’s resources and the parties’ time and money.

43    The first respondent also submits that the discovery application should be dismissed on the basis that the applicant has indicated that further discovery orders may be sought in due course and that discovery at this stage is therefore piecemeal and inappropriate. It submits that discovery should be dealt with once and for all.

44    Whilst there is something to be said for trying to deal with all issues in relation to discovery at one time, there is no hard and fast rule in that respect. In this case, the applicant has at this stage sought discovery that is targeted at, essentially, one issue in dispute in the case. That issue is at the very heart of the case. Moreover, quite apparently discovery is sought at this stage in order to assist the applicant to identify witnesses whom he may be able to call in support of his case. That is an entirely legitimate forensic purpose. It also justifies the discovery that he seeks being sought at this stage in the proceeding. It may also be that further discovery will not be sought, or will not be necessary.

45    In those circumstances, I am satisfied in the exercise of my discretion that – subject to narrowing the wording in certain respects – the discovery orders that the applicant seeks should be granted.

46    In view of that conclusion, the issues in relation to the notice to produce fall away. Since the applicant has said that he will not in the circumstances press the notice to produce, nothing more need be said about it. Equally, there is no harm in setting it aside, which is what I propose to do as that will formalise the applicant’s position in relation to it.

The further particulars

47    Rule 16.45 governs the provision of further particulars. The provision of further particulars to a pleading may be ordered if the particulars in the pleading are inadequate and the party seeking the order could not conduct the party’s case without further particulars (r 16.45(2)). The particulars in a pleading will be inadequate if the pleading does not give a party fair notice of the case to be made against that party at trial and, as a result, the party may be prejudiced in the conduct of the party’s case (r 16.45(1)).

48    The applicant’s request for further particulars is set out in a letter from his solicitors to the respondents’ solicitors dated 19 March 2021. The letter is slightly over three pages long. The first page deals with introductory matters. The request itself is therefore barely more than two pages. It is addressed at only paragraphs 19(a), 19(c) and 23 of the defence. The request addressed at paragraph 23 is not pressed which means that the request is less than two pages. The point is that the request is not long, complicated or particularly burdensome. It is not one of those requests that one sometimes sees that goes on and on asking every conceivable question of every paragraph and subparagraph of the pleading.

49    Those observations are relevant because a helpful response to the request that answered those questions that could readily be answered, even if they were not strictly justified under the rules, would have been in fulfilment of the obligation on the first respondent under ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) to conduct the litigation in such a way as to facilitate the just resolution of the dispute as quickly, inexpensively and efficiently as possible. Had the request, in an overall sense, been unduly burdensome and unjustified then a technical and unhelpful rejection of it might itself have been justified. In the circumstances, however, the first respondent should simply have answered the questions that it could readily answer in order to progress the matter.

50    The first respondent ultimately responded to the request for further particulars by letter dated 16 April 2021, i.e., nearly a month after the request had been made and several weeks after the applicant’s interlocutory application seeking orders for a response had been filed and served. The first respondent answered one request by which it confirmed that no-one on behalf the first respondent informed the applicant of the first respondent’s “practice”, either orally or in writing, in the period from November 2013 to June 2014. The first respondent otherwise rejected each request as being not a proper request for further particulars. That approach was unhelpful and is regrettable.

51    Paragraph 1 of the request for further particulars is directed to paragraph 19(a) of the defence. It will be recalled that that subparagraph positively pleads that in the period from November 2013 to June 2014 it was the “practice” of the first respondent to discuss with each partner, in the period up to the partner attaining the age of 62 years, the possibility of their retirement from the partnership by 31 May following their reaching that age and the possibility of their continuing engagement with the first respondent following that time in a different capacity. The relevance of the period November 2013 to June 2014 is that that is when there were discussions between the applicant and the first respondent with regard to him joining the first respondent as a partner, which he then did in June 2014.

52    Paragraph 1(a) of the request asks whether in the period from November 2013 to June 2014 the fact of the “practice” pleaded by the respondents was recorded in any document. If it is recorded in a document, the request seeks a copy of the document.

53    That request is narrow and it is legitimate. The applicant should know whether the case he has to meet is that the practice that is pleaded against him is a formal practice of the partnership recorded in a partnership document, or whether it is something looser than that which is to be discerned from what was actually done from time to time with respect to the possible retirement of partners on reaching the age of 62 years. Moreover, the request is easy to answer. Thus, even if strictly speaking the request did not fall within the provisions of the rules, it should have been answered.

54    Paragraph 1(b) of the request for further particulars asks how the fact of the first respondent’s practice was made known to the people who had to implement the practice on behalf of the first respondent. In my view, that is a matter going beyond what is necessary for the applicant to be able to conduct his case. I decline to compel a substantive answer to it.

55    Paragraph 1(c) of the request is the question that the respondents answered. As a result of that answer, paragraph 1(d) fell away.

56    Paragraph 1(e) asks to how many partners of the first respondent was the “practice” applied in the period from November 2013 to June 2014, and paragraph 1(f) asks who those partners are. That is information peculiarly within the knowledge of the first respondent. It is not something that will necessarily be revealed in the respondents’ evidence or in discovery, and the applicant has a legitimate forensic purpose in seeking that information. That purpose is to be able to identify potential witnesses. In those circumstances, I am satisfied that without those particulars the applicant will be prejudiced in the conduct of his case. The requests should therefore be answered.

57    Paragraphs 2, 3, 4 and 5 of the request are directed to paragraph 19(c) of the defence. It will be recalled that that subparagraph pleads that the “practice” of the first respondent which is pleaded in paragraph 19(a) of the defence was also the practice of the first respondent “as at or around January 2019”. The relevance of January 2019 is that that is when, on the respondents’ pleading, the “practice” was sought to be applied to the applicant.

58    Paragraph 2 of the request asks whether it is the respondent’s case that the “practice” continued in place from June 2014 until January 2019. That request is aimed at resolving an ambiguity in the pleading, which is whether the practice existed only in the two separate periods identified in subparagraphs 19(a) and (c) of the defence, or whether it was continuous. It is quite legitimate for the applicant to seek to resolve that ambiguity by the request for further particulars, and the request is easy to answer. It should be answered.

59    Paragraph 3 of the request asks, if the answer to paragraph 2 is “no”, when after June 2014 the first respondent resumed the practice, how the resumption of the practice was made known to the persons on behalf of the first respondent who implemented it, and if they were so informed by a document, a copy of the document was sought. In my view, if it is the respondents’ case that the practice was not continuous and that at some stage between the two identified time periods it was resumed, then as part of resolving the ambiguity in the pleading the respondents should make it clear when the practice was resumed. Answers to the further questions concerning informing the persons who had to implement the practice about its resumption are not required for the applicant to be able to conduct his case. They fall into the same category as paragraph 1(b) above.

60    In the result, the respondents should answer paragraph 3(a) of the request.

61    In order to deal with paragraphs 4 and 5 of the request, it is necessary to identify some other aspects of the pleadings.

62    In paragraphs 44 and 45 of the amended statement of claim, the applicant pleads that he turned 62 years of age on 29 July 2018, and that on or about 31 January 2019 (i.e., four months before 31 May following his turning 62) the first respondent’s Managing Partner, Audit and Assurance, telephoned him and advised him that he would need to retire from the partnership once he reached the partnership’s “retirement age”, being the end of May following his 62nd birthday. In the corresponding paragraphs of the defence, the respondents admitted the applicant’s birthdate and the fact of the telephone call, pleaded that the call was in accordance with the “practice” pleaded in paragraph 19 of the defence, and denied certain specifics about the call. The respondents later pleaded that following the telephone call there were discussions between the first respondent and the applicant with regard to his possible retirement and, in paragraph 55(l)(iii), that that those discussions ceased in and around August 2019.

63    Against that pleading background, paragraph 4(a) of the request asks with respect to the period from January 2017 (i.e., 24 months before January 2019 when “retirement” discussions were commenced with the applicant) until August 2019 whether the “practice” of the first respondent is recorded in a document and, if so, it asks for a copy of the document. For the same reasons as dealt with in relation to the request in paragraph 1(a), the first respondent should answer this request. I regard a period of 24 months prior to the relevant date to be a reasonable period for investigation with regard to ascertaining the relevant practice or policy.

64    Paragraph 4(b) asks about how people who were tasked with implementing the “practice” on behalf of the first respondent were informed of it. For the same reasons as dealt with in relation to paragraphs 1(b) and 3(b), that is not a legitimate request. It need not be answered.

65    Paragraphs 4(c) and (d) of the request asks for the number of partners to whom the practice was applied, and their names, in the period January 2017 to August 2019. For the same reasons as given in relation to paragraphs 1(e) and (f), those requests are legitimate and should be answered.

66    Paragraph 5 of the request seems to me to unnecessarily cover the same terrain as paragraph 4 but in respect of a possibly more restricted time period than January 2017 to August 2019 if the “practice” was resumed only after January 2017. I do not presently see the justification for compelling an answer to this paragraph.

67    Paragraph 6 of the request was not pressed.

68    In the circumstances, the respondents should answer the requests in paragraphs 1(a), 1(e), 1(f), 2, 3(a), 4(a), 4(c) and 4(d) of the letter from the applicant’s solicitors to the respondents’ solicitors dated 19 March 2021.

The subpoenas

69    The disputed subpoenas are addressed to five former partners of the first respondent who are believed by the applicant to have retired between 2015 and 2020 on or close to their 62nd birthdays. The subpoenas seek the following documents from each:

1.     A copy of your birth certificate, or alternatively your driver’s licence or other document recording your date of birth.

2.     Any agreements made between you and Deloitte Touche Tohmatsu (Deloitte) relating to your retirement, resignation or expulsion from the Deloitte partnership.

3.     All documents that record communications (using any means, including text messages and emails) between you and Deloitte relating to your proposed or actual retirement, resignation or expulsion from the Deloitte partnership.

70    When the application was heard three of the subpoenaed parties had already produced documents to the Court in response to the subpoenas. Mr Kennedy did so on 18 March 2021, Mr van Beek on 19 March 2021 and Mr Levi on 26 March 2021. Ms Thorn has not yet responded and the subpoena addressed to Mr Caldwell has not been served.

71    By r 24.15(1) a party to the matter or “any person having a sufficient interest” may apply to set aside a subpoena. On that basis, the first respondent has standing to bring the interlocutory application to set aside the subpoenas.

72    The primary argument advanced by the first respondent in seeking an order setting aside the subpoenas is that they are being used by the applicant for the purpose of or in lieu of an application for discovery. In that regard, the first respondent submits that a subpoena cannot be used as a substitute for discovery and cites: Commissioner for Railways (NSW) v Small (1938) 38 SR (NSW) 564 at 574-575 per Jordan CJ; Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 2087 at [9] per Rares J; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 61 at [6(3)] per Collier J; and Subpoenas and Notices to Produce Practice Note (GPN-SUBP) at [11.8]. The trouble is that none of those authorities supports the proposition for which it is cited. The first case deals with a subpoena to the defendant and the second with a subpoena to the applicant. The third deals with a notice to produce served on the respondent. The cited paragraph of the Practice Note also deals with notices to produce. It is no proper basis to object to and set aside a subpoena to a stranger to the litigation on the grounds that it is somehow a substitute for discovery.

73    Each of the subpoenas is narrowly drafted and is justified by a legitimate forensic purpose, namely to ascertain whether indeed the first respondent has implemented or adopted the “practice” that it has pleaded, or whether the former partners were required to retire as the applicant has pleaded it was his understanding. It is not only the documents that are produced that may be relevant to those questions, but the documents may also reveal to the applicant whether any of those former partners should be requested or required to be witnesses in his case.

74    I do not see any basis upon which the subpoenas can be characterised as an abuse of process. There would then only be the question whether as a matter of discretion they should be set aside. That certainly cannot be the case in respect of the three that have already been answered because to set them aside would be pointless, or would at the very least render the effort to which the subpoenaed parties have gone to answer the subpoenas wasted.

75    In the circumstances, the first respondent’s application to set aside the subpoenas should be dismissed.

Costs

76    I will hear the parties separately on costs. Clearly because of the interrelated issues, it will be most expedient to deal with the costs of all three interlocutory applications together.

Associate:

Dated:    27 April 2021