Federal Court of Australia

Roohizadegan v Technology One Limited (Trial Ruling) [2025] FCA 309

ORDERS

THE COURT ORDERS THAT:

1.    The subpoena addressed to Mr Paul Brendan James dated 11 March 2025 is set aside.

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

REASONS FOR JUDGMENT

MCELWAINE J:

1    The applicant seeks to adduce evidence from Mr Paul Brendan James who was employed by the first respondent during 2016.  This is the third occasion on which I have been called upon to consider whether Mr James should be permitted to give evidence.

2    On 15 May 2023, I made various case management orders, including a requirement that the applicant file and serve his lay evidence by 31 July 2023 in chief, and by 15 January 2024 in reply.  The first order was subsequently varied to 14 August 2023.  No affidavit or statement from Mr James was filed in accordance with those orders.  The orders did not carve out, as an exception, evidence to be adduced orally from any person served with a subpoena.

3    In pre-trial rulings delivered on 9 August and 3 September 2024, I set aside a subpoena addressed to Mr James dated 25 July 2024 and refused a further application for a grant of leave for the issue of a subpoena addressed to him.

4    The trial commenced on 30 September 2024 and continued until 23 October 2024, when it was necessary to adjourn it.  The trial resumed on 31 March 2024.  Save for some expert evidence, all of the applicant’s evidence has been adduced and tested in cross-examination.  Presently, I am receiving evidence from the witnesses for the respondents, which commenced in October 2024.  Significantly for present purposes, the evidence of the applicant and of Mr Martin Harwood has been given.

5    On 10 March 2025, the solicitors for the applicant filed a further request for leave to issue a subpoena addressed to Mr James.  In support of that application the solicitor stated:

Paul James was a TechnologyOne employee who worked at TechnologyOne from 2008 – 2023. He reported to Martin Harwood during 2015 – 2016 when the key events from this proceeding took place. He had regular dealings with almost all the dramatis personae from this proceeding. The Applicant is seeking to subpoena Paul James to give evidence about a discrete matter, rather than the broader range of topics that was previously sought.

In this proceeding a conversation that is centrally in dispute is a telephone conversation between Martin Harwood and the Applicant on 2 February 2016 about the fact the Applicant had requested a meeting with Adrian Di Marco, which was scheduled to occur the next day on 3 February 2016. During Martin Harwood’s oral evidence he expressly stated that during this conversation he did not threaten the Applicant with termination in connection with this meeting. By contrast the Applicant testified that Martin Harwood did threaten him, and immediately after being threatened, the Applicant sent an SMS to Steve Terry, and then contacted Paul James to recount what occurred (Page 88 Line 39 – Page 90 Line 10; Page 475 Line 27; Page 486 Line 38-39; Page 499 Line 30-32; Page 502 Line 28-29). Paul James then travelled to meet the Applicant in person, and the two men had a conversation about what the Applicant should do. Paul James can give admissible evidence about whether the Applicant did telephone him on 2 February to discuss the fact that Martin Harwood had threatened the Applicant, and whether the two men then had a personal meeting on 2 February to discuss what the Applicant should do. This evidence will be probative of a factual matter in dispute.

The circumstances have changed since the Applicant’s first attempt to subpoena Paul James. On the first occasion when this issue arose his honour, McElwaine J, declined to subpoena Paul James on the rationale that the Applicant took contemporaneous notes of the relevant conversations. Since then, the Respondents have indicated that the Respondents dispute the authenticity of the Applicant’s notes. During the second trial, the Respondents accused the Applicant of fabricating his notes of the telephone conversation on 2 February 2016 (TT 485 Line 36 – Page 488 Line 25). This is a relevant change of circumstance, which means that corroborative evidence from Paul James has greater importance than was previously thought.

6    On that basis, I was satisfied to grant leave pursuant to r 24.01 of the Federal Court Rules 2011 (Cth) because the foreshadowed evidence was relevant to a fact in issue and, during the course of the cross-examination of the applicant, it became clear that the authenticity of notes he alleges he made as relevant to the fact in issue (amongst others) was challenged.  When I refused leave to issue a further subpoena on 3 September 2024, one matter that I considered in the exercise of my discretion was that I was informed by counsel for the respondents that the notes had been admitted into evidence in the first trial of this proceeding before Kerr J and it was not then disputed that the notes were authentic and contemporaneous. Nor was that then in dispute in the trial before me.

7    Amongst other things, the notes contain entries relevant to a telephone conversations on 1 and 2 February 2016 between the applicant and Mr Harwood about a request that the applicant had made to meet with Mr Di Marco and during which, on the applicant’s account, Mr Harwood threatened him.  The applicant in his evidence in chief (from T 88) said that one  telephone discussion lasted for approximately 10 minutes, Mr Harwood was “shouting, screaming at me”,  and “swearing” each to the effect that the applicant should cancel his intended meeting with Mr Di Marco and that if he did not: “one of us has to go by the end of the week”.

8    The applicant’s evidence continued that, shortly after that telephone discussion, he telephoned Mr James and provided a partial explanation to him as to what had occurred.  Mr James assessed the applicant as highly distressed and anxious.  Mr James then travelled to a hotel room in Brisbane and met with the applicant.

9    The applicant’s evidence in chief was then to the effect that he told Mr James that he felt very stressed, anxious and was suicidal.  They met for somewhere between 10 and 30 minutes.  The applicant’s evidence in chief included (from T 89) that:

I explained to him again what has happened in the last two days about the phone calls I had received from Mr Harwood and I mentioned to Paul,: I really don’t know what to do. Because Mr Harwood is my boss, he has asked me to cancel the meeting with Mr Di Marco but Mr Di Marco has organised this meeting. I feel very uncomfortable to call Mr Di Marco until Mr Di Marco, I don’t want to see you, and then I don’t know how that’s going to sound to Mr Di Marco – because he is the chairman and CEO of the company – I don’t know what to do. And explained to him, this has really been very traumatising to me. I feel very stressed, anxious and I feel suicidal as a result.

10    The applicant’s evidence continued to the effect that Mr James advised him not to call Mr Di Marco and to attend the meeting as scheduled, which the applicant agreed to do and Mr James requested an assurance from the applicant that he would not take his own life that night.

11    Two outlines of evidence of Mr James had been prepared and delivered to the solicitors for the respondents.  The version that I dealt with in my ruling on 3 September 2024 comprises 38 paragraphs.  The version that is presently in issue is undated and comprises 17 paragraphs.  To the extent relevant the paragraphs in issue numbered [8] – [17] in the current iteration are broadly similar to paragraphs [11] – [20] of the first version.

12    Of central relevance for present purposes are paragraphs [12] – [17]:

The relevant meeting between Mr Roohizadegan and Di Marco (which is described as ‘the 3 February 2016 Complaint’) occurred on 3 February 2016. Paul James does not recall the date, but he remembers the surrounding conversations because of the context, which was that he had a meeting with Mr Roohizadegan at a hotel room in Brisbane.

Paul James recalls receiving a phone call from Mr Roohizadegan in which Mr Roohizadegan eplained he was in Brisbane for a meeting with Adrian Di Marco that would occur the next day. During this phone call Paul James perceived that Mr Roohizadegan was highly distressed and anxious. This made an impression on Paul James because in his history of dealings Mr Roohizadegan had always seemed self-assured and confident. During the phone call Roohizadegan told Paul James he was concerned about the meeting with Adrian Di Marco and the security of Roohizadegan’s employment at TechnologyOne, because of Martin Harwood.

Mr Roohizadegan sounded sufficiently emotional during the phone call that Paul James became concerned about Mr Roohizadegan’s welfare. He physically travelled to the hotel in Brisbane where Mr Roohizadegan was staying and joined Mr Roohizadegan in his hotel room.

After Paul James arrived at the hotel room Mr Roohizadegan told him that Martin Harwood was unhappy about the proposed meeting between Roohizadegan and Di Marco. Mr Roohizadegan said he was worried about what might happen at the meeting the next day and that he might be sacked.

During the conversation in the hotel room Paul James refrained from informing Mr Roohizadegan that Paul James had observed Martin Harwood making critical remarks about Mr Roohizadegan’s habit of bypassing Harwood to talk to Di Marco. Paul James thought it was inappropriate to disclose private conversations that he had with Martin Harwood. Instead he told Mr Roohizadegan that, because Roohizadegan was already in Brisbane and the meeting was scheduled to occur the next day, Roohizadegan should attend the meeting and trust in his longstanding relationship with Adrian Di Marco and his many years at TechnologyOne.

Paul James estimates he stayed with Mr Roohizadegan at the hotel for half an hour. He then departed. He does not recall hearing anything further about the matter, or what happened at Mr Roohizadegan’s meeting with Adrian Di Marco the next day, or whether the meeting went ahead.

13    The respondents by interlocutory application dated 28 March 2025, seek an order pursuant to r 24.15 of the Rules that the subpoena be set aside or alternatively pursuant to s 37P of the Federal Court of Australia Act 1976 (Cth) (FCA Act), that the applicant not be allowed to adduce evidence from Mr James.

14    That application is put on three grounds:

(1)    AON Risk Services Ltd v Australian National University [2009] HCA 27; 239 CLR 175;

(2)    the evidence if admissible should in any event be excluded under s 135 of the Evidence Act 1995 (Cth); and

(3)    it is not otherwise in the interests of justice to adduce the evidence pursuant to s 37P of the FCA Act.

15    To my mind, the first question is whether the evidence of Mr James is, in any event, admissible. Counsel for the applicant, Mr Hyde Page, relies on ss 64(3) and 66A of the Evidence Act.  Dealing first with s 66(3), it creates an exception to the hearsay rule at s 59 in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact: s 64(1).  Where that is so, then s 64(3) provides:

(3)  If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:

(a)  that person; or

(b)  a person who saw, heard or otherwise perceived the representation being made.

16    A previous representation, described as “first-hand hearsay”, is limited by s 62(1) to a previous representation that was made by a person who had personal knowledge of an asserted fact.  Thus, four issues arise:

(1)    What is the previous representation;

(2)    Who made it;

(3)    What is the fact intended to be asserted by that representation; and

(4)    What is the fact in issue.

17    When I discussed these issues with Mr Hyde Page he responded as follows:

(1)    That the applicant said to Mr James that he had a discussion with Mr Harwood about his intended meeting with Mr Di Marco and during the discussion, Mr Harwood had threatened the applicant with termination of his employment if he met with Mr Di Marco as arranged;

(2)    The applicant;

(3)     That a conversation occurred between the applicant and Mr Harwood to the effect stated in (1); and

(4)    Whether or not Mr Harwood threatened the applicant.

18    In submissions when I pressed Mr Hyde Page to identify the relevance of the intended evidence from Mr James, it was accepted that it goes to the question of whether the applicant subsequently made a complaint to Mr Di Marco as pleaded at paragraph [9] of his statement of claim.  The contention is that on 3 February 2016, the applicant attended the arranged meeting with Mr Di Marco during which he complained to Mr Di Marco that he had received “threatening phone calls and behaviour” that Mr Harwood had subjected him to and, in response, Mr Di Marco said words to the effect that he would not tolerate such conduct from Mr Harwood and would summon him to his office but: “do not tell Martin in front of me what he had told you about either him or you in this company”.  This contention is framed as the 3 February 2016 complaint.

19    To understand what is meant by the 3 February 2016 compliant, one must consider the pleas at [7] and [8]:

On 1 February 2016 and 2 February 2016, Mr Harwood called Mr Roohizadegan and in a raised and aggressive voice said to Mr Roohizadegan words to the effect of: "you do not have a right to see Adrian I am your boss". He threatened that "if you go to this meeting on Wednesday it will be either you or me at Technology One by the end of the day. One of us has to go Behnam."

Mr Roohizadegan was distressed by these phone calls and felt bullied. He had never been spoken to in such a manner throughout his career. Nor had he previously been told by Mr Harwood or Mr Di Marco that he was not to meet with Mr Di Marco in Brisbane. To the contrary, Mr Di Marco had repeatedly thanked Mr Roohizadegan for his reports and encouraged Mr Roohizadegan to escalate unresolved matters and continue to update Mr Di Marco.

20    Counsel for the respondents, Mr Wood KC, accepted in submissions that the evidence intended to be adduced from Mr James is first-hand hearsay and that the exception at s 64(3) applies.  The crux of the respondent’s argument is that, nonetheless, I should refuse to admit the evidence pursuant to s 135 on the basis that the probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the respondents or cause or result in an undue waste of time.  On the question of prejudice, the respondents make two submissions.  One, that admitting this evidence late in the trial will deprive the respondents of the opportunity to test the evidence by further questioning the applicant.  In support of that submission, reliance is again placed on an affidavit made by one of the respondent’s solicitors, Mr Gardner dated 2 September 2024.  They also rely on the application, by analogy, of the various considerations set out in AON.

21    The other  is that admitting the evidence at this late stage will result in an undue waste of time, particularly having regard to the very large number of contravention allegations relied on by the applicant (which they assert mathematically amounts to 383 separate contraventions) and that if the evidence of Mr James is admitted, it will be necessary to cross-examine him in circumstances where his evidence is only “of peripheral relevance to the real issues in dispute, and is just one of hundreds of issues raised by the applicant”.

22    Mr Harwood has given evidence, that has been thoroughly tested in cross examination, that he did not threaten the applicant as alleged.  Mr Harwood accepts that he had telephone discussions with the applicant on 1 and 2 February 2016.  On his evidence the discussions were “quite civil” (T 1036), he denied that he told the applicant to cancel the intended meeting with Mr Di Marco (T 1169) and further denied that he said to the applicant that if the meeting proceeded, he would “drive Mr Roohizadegan out of the company” (T 1169).

23    For this conversation, the applicant has given evidence that he made a contemporaneous note in a diary (CB 3843) which records his version of the telephone calls with Mr Harwood on 1 and 2 February 2016.  Those notes, inter alia, record that:

He is not happy with me seeing Adrian etc

I don’t follow his instructions. I told him to give an example of when

He said I lectured him on how he can help me last night and has been thinking last night

One of us has to go

I said I am not going anywhere

24    The respondents have now foreshadowed adducing evidence to the effect that I should conclude that this note is a fabrication.  As I presently understand their position it extends to other documents in the form of handwritten notes claimed to have been made by the applicant as contemporaneous, such as the separate notebook, described as: “blue 60-page A4 Spiral notebook comprising 53 pages” (T 556).

25    The serious nature of that allegation was acknowledged by Mr Wood KC.  I have been taken to an extensive quantity of documentation, recently obtained on subpoena, that the respondents intend to adduce into evidence to make good that contention, together with the general cross-examination of the applicant on this issue.

26    I am unpersuaded by the prejudice submission so far as it relates to s 135 of the Evidence Act.  The question is whether the probative value of the evidence is substantially outweighed by the danger that it might be unfairly prejudicial to the respondents.  Although as I explain, the probative value is not substantial, on the prejudice question the respondents have departed from the position that was clearly and unequivocally stated in the course of argument on 3 September 2024, that the notes made by the applicant are authentic and contemporaneous.  To the extent that prejudice arises at this late stage of the proceeding, it has been caused by that change of position.  Similarly, I am unpersuaded for the same reason that I should refuse to admit the evidence because of the danger that the probative value is substantially outweighed by the risk that its receipt may cause or result in an undue waste of time.  We are now in day 20 of a trial that I was informed would only require 10 days of hearing time.  In the context of the very large amount of evidence which has thus far been received, both oral and documentary, the amount of time that is likely to be consumed in adducing and testing the evidence of Mr James is not significant.  I emphasise that I have reached this conclusion because of the statutory requirement that this matter must substantially outweigh the probative value of the evidence.

27    The next admissibility issue that must be addressed is s 66A of the Evidence Act.  This provides for an exception to the hearsay rule of evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind.  The proposed evidence from Mr James includes observations made by him during his telephone discussion with the applicant and then in their meeting about the applicant’s state of distress.  That evidence is clearly admissible pursuant to this provision.  And, for reasons as I have given above, I would not exercise my discretion pursuant to s 135 of the Evidence Act to exclude it.

28    However, there is another issue that arises under s 64(3), which was not addressed by counsel until I drew attention to it.  The subsection only applies if the person who made the representation has been or is to be called to give evidence.  In this case, that is the applicant.  There is authority to the effect that where a witness has concluded giving evidence and is not to be recalled, the provision does not apply: Osborne Metal Industries v Bullock (No 1) [2011] NSWSC 636 at [25] – [26].  When I raised this with Mr Hyde Page, he informed me that he was unaware of this authority.  I infer that if I was otherwise disposed to permit evidence to be adduced from Mr James, that it would be on condition that the applicant agreed to being recalled for further cross-examination.  As I explain, that is relevant to the AON arguments and the overarching purpose considerations.

29    Dealing next with the more particular reliance by the respondents on AON, my attention is drawn to the decision of Rofe J in Bed Bath N Table Pty Ltd v Global Retail Brands Australia Pty Ltd [2022] FCA 1380, where her Honour dealt with a late application to file further evidence out of time. At [17] – [23], her Honour applied the well-known AON considerations to that application, and in part allowed it.  At [23] her Honour listed six factors that she considered relevant including, for present purposes, the nature and importance of the proposed evidence.  It is that matter that I took up in submissions with Mr Hyde Page.

30    Mr Hyde Page submits that the evidence from Mr James is relevant to whether the applicant had telephone conversations with Mr Harwood as he contends, which fact then supports the finding that the 3 February 2016 complaint was thereafter made by the applicant to Mr Di Marco.  However, when I pressed Mr Hyde Page to identify where Mr James gives evidence in support of the anterior fact, I was informed that the “highpoint” is at paragraph [15] of the current outline of the proposed evidence.  What is to be noted about that paragraph is that Mr James does not say that he was told by the applicant that Mr Harwood had made a threat to terminate the applicant’s employment if the applicant proceeded with the scheduled meeting with Mr Di Marco.  Accordingly, the proposed evidence does not go to the heart of the previous representation that the applicant relies on to adduce this evidence pursuant to s 64(3) of the Evidence Act.  The evidence is not materially probative of the factual issue that the applicant presses.

31    Further, the applicant has already given extensive evidence that he felt distressed, anxious and suicidal in consequence of his telephone discussion with Mr Harwood: see T 86 – 88, evidence in chief.  That evidence was not challenged in cross-examination.  Thus, evidence from Mr James which simply confirms the applicant’s state of distress is of little further probative value.

32    It should also be noted, even though it is self-evident, that Mr James does not give any evidence about the making of the notes by the applicant and about which there is now a very significant issue as to their authenticity as a contemporaneous record of the discussions with Mr Harwood.

33    These considerations hardly support the applicant’s submissions that he should be permitted to adduce the foreshadowed evidence from Mr James.  To the contrary, they are supportive of the respondents’ submissions that, by analogy with the general considerations identified in AON, the subpoena to Mr James should be set aside pursuant to r 24.15 of the Rules.

34    Another consideration which informs the exercise of my discretion is whether adducing the evidence from Mr James is consistent with the overarching purpose at ss 37M and 37N of the FCA Act.  This is a long running trial where a large amount of documentary and oral evidence has already been adduced by the parties.  Section 37P of the FCA Act permits the making of orders about the practice and procedure to be followed in order to achieve the overarching purpose of facilitating the just resolution of the dispute between these parties according to law and as quickly, inexpensively and efficiently as possible.  To that end, the Court may make orders, including an order which limits the number of witnesses who may be called to give evidence: s 37P(3)(c). The overarching purpose is not conditioned by any requirement that there be a substantiality assessment of prescribed factors, unlike s 135 of the Evidence Act.

35    The applicant has given his evidence in support of his case that he made the 3 February 2016 complaint and has been tested at length in cross-examination on that issue.  The evidence proposed to be called from Mr James is not directly relevant to that primary fact.  At best, if I were satisfied that there was a telephone discussion between the applicant and Mr Harwood as alleged, then that finding may support a further finding that the next day the applicant made the contended complaint of threatening phone calls and behaviour by Mr Harwood to Mr Di Marco.  However, balanced against that is the fact that the evidence is first-hand hearsay, this complaint is one of very many that the applicant presses in this proceeding and the respondents have commenced their case by adducing evidence that is necessary for the purpose of rebutting the presumption at s 361 of the Fair Work Act 2009 (Cth).

36    In my view, the proposed evidence from Mr James is not so centrally probative to the question of whether or not the applicant made the 3 February 2016 complaint, such that the applicant should be permitted to adduce it at this very late stage of the proceeding, conformably with his obligation to conduct this proceeding in a way that is consistent with the overarching purpose.  The fact is that the applicant has given his version of the events and Mr Harwood has disputed.  Whether or not the applicant repeated his version of what was said during the telephone discussions with Mr Harwood to Mr James, does not make the applicant’s version “any less untrue if it were untrue to begin with” (where a warning is required to be given to a jury in a criminal case to that effect, if the cognate provision at s 66 of the Evidence Act is invoked): Papakomas v The Queen [1999] HCA 37; 196 CLR 297 at 309, Gleeson CJ and Hayne J.  Thus, caution is required in assessing hearsay evidence of this character.

37    Finally, there is the issue that I mentioned earlier: if the evidence is adduced in reliance on the hearsay exception at s 64(3) of the Evidence Act, it must be on the basis that the applicant is recalled for further cross-examination.  That likelihood is a material reason which informs my discretion to not permit the applicant to adduce the evidence from Mr James at this late stage because of the likely impact on the available time to conclude this trial.  The applicant gave evidence and was cross-examined over an extensive period.  His evidence commenced on 30 September 2024.  Thereafter, he gave evidence on 1, 2, 3, 4, 7, 8, 9, 10, 11, 14, and 15 October 2024.

38    It would not in my view facilitate the just resolution of this proceeding quickly, inexpensively and efficiently, including by the need to proceed by efficiently using the judicial and administrative resources available to this Court, the efficient disposal of the Court’s overall caseload, the disposal of this proceeding in a timely manner and the resolution of this dispute at a cost that is proportionate to the importance and complexity of the matters in dispute (balanced against the likely probative value of the evidence of Mr James) to permit the intended evidence to be adduced from Mr James.

39    Accordingly, having regard to each of these matters, I have concluded that the subpoena addressed to Mr James should be set aside pursuant to r 24.15 of the Rules, and I order accordingly.

Associate:

Dated:    2 April 2025