FEDERAL COURT OF AUSTRALIA

Wilson v Secretary, Department of Agriculture, Fisheries and Forestry (No 2) [2025] FCA 394

ORDERS

THE COURT ORDERS THAT:

1.    By 7 May 2025, the parties are to confer as to the appropriate orders (including costs orders) to give effect to these reasons for judgment and are to provide to the Associate to Goodman J:

(1)    a joint set of orders which may be made by consent;

(2)    to the extent that agreement has not been reached:

(a)    competing sets of proposed orders; and

(b)    an agreed proposed timetable for the filing of any further submissions concerning those competing orders.

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

REASONS FOR JUDGMENT

GOODMAN J:

A.    INTRODUCTION

1    These reasons for judgment concern whether the first respondent (Department) should be required to provide further documents by way of disclosure to the applicant, and whether the applicant should be granted leave to issue a subpoena to a third party.

B.    BACKGROUND

2    The events the subject of this proceeding occurred within the context of the applicant’s employment by the Department. At material times:

(1)    Mr Neal Mason was the First Assistant Secretary of the Corporate Strategy and Governance Division within the Department, with oversight of the Parliamentary, Communications and Portfolio Business Branch of the Department (Communications Branch);

(2)    Ms Melissa Brown was the Assistant Secretary of the Communications Branch and reported to Mr Mason;

(3)    one of the sections within the Communications Branch was known as the Production Section which, broadly, was responsible for the management of materials published by the Department;

(4)    the applicant was the Director of the Production Section. Others working within the Production Section included Ms Julia Church, Ms Emma Rossiter, Ms Jane Wiles, Mr Ryan Genero, Ms Dawn Kelly, Mr Lawrence Gardner, Mr Greg Richardson and Mr Thomas Buckland (each of whom allegedly made complaints concerning the applicant); together with Mr Paul Grocott, Mr Van Dang and Ms Paulette Pope; and

(5)    within the Human Resources Branch of the Department were: (1) Ms Emma Connell, Director – People Support and Resolution; (2) a team known as the Conduct and Performance team which included Ms Ashleigh Buckland, Assistant Director of that team and Ms Bianca Norton, Advisor. Ms Buckland has subsequently married and changed her surname, however I will – without intending any disrespect and adopting the course taken by counsel – refer to her by her maiden name.

3    The applicant’s central contentions include that:

(1)    in early May 2018, Ms Brown received complaints in relation to the applicant;

(2)    in about May 2018, the Department engaged an independent external advisor, Ascend HR. Ms Kylie Holyland was the principal of Ascend HR. Ascend HR interviewed the applicant and a number of staff within the team managed by the applicant and in December 2018, produced a report. The applicant contends that Ascend HR undertook an investigation of his conduct and performance in circumstances where the fact of that investigation was not made known to, and was concealed from, him and he was told that the purpose of the engagement of Ascend HR was merely a “team development” or “team building” exercise. He also contends that the true purpose of Ascend HR’s investigation was to obtain or procure complaints and/or evidence to provide a justification to remove him from his position otherwise than in accordance with a proper process;

(3)    between June and December 2018, Ms Brown met with Performance Section staff and directed or requested them to provide information to Ascend HR about the applicant’s conduct and performance;

(4)    in around December 2018, Ms Brown and Mr Mason caused amendments to be made to what the applicant contends was a final report prepared by Ascend HR as part of the Ascend HR investigation and that they did so in furtherance of a purpose of removing the applicant and so as to conceal that purpose from him. In particular, the applicant contends that Mr Mason and Ms Brown amended the Ascend HR report that had been provided by Ms Holyland as a final report, so as to:

(a)    remove text that recorded in effect that Ascend HR had been engaged to review the conduct and performance of the applicant;

(b)    add material that would assist the Department to impose sanctions on the applicant under s 15 of the Public Service Act 1999 (Cth) (PS Act), and to undertake performance management of the applicant, by including specific examples of the applicant’s conduct and performance; and

(c)    remove recommended action that would be inconsistent with the Department undertaking action to remove the applicant from his position, being the undertaking of counselling and coaching of the applicant in relation to the content of the Ascend HR report;

(5)    on the day that Ascend HR’s report was ultimately finalised, Ms Brown provided that report to Ms Buckland for the purpose of action being taken against the applicant under s 15 of the PS Act;

(6)    Ms Buckland told Ms Brown that the Ascend HR report could not be relied upon for the purpose of imposing sanctions under s 15 of the PS Act, as it had not been obtained as part of a procedure established under that section;

(7)    after Ms Buckland told Ms Brown that the Ascend HR report could not be used in that way:

(a)    Ms Brown and Ms Buckland met with one or more of the complainants and directed, requested or initiated the making of complaints by those complainants in relation to the applicant;

(b)    Ms Buckland and/or Ms Norton gave advice to Ms Church, Ms Rossiter and Ms Wiles (referred to as the Editors) as to how the applicant could be quickly removed from his position, the types of evidence that would be required, and how the complaints about the applicant could be presented so as to constitute a breach of s 15 of the PS Act;

(c)    that the Editors were also given a guarantee that if the complaints they made were not substantiated, then the applicant would nevertheless be removed from his position;

(8)    on 21 December 2018, the Editors submitted a joint complaint “as one of several submissions” from the Production team in response to the request by Ms Brown and Ms Buckland, which joint complaint was made on the basis of the guarantee;

(9)    on 16 January 2019, Ms Buckland sent an email to the Editors to “preserve any formal Code action” and which suggested to the Editors that: (a) Ms Brown had not requested that the complainants meet with Ms Buckland; and (b) no guarantee had been provided as an inducement for the making of the complaints;

(10)    the investigation was conducted by Mr Mason, Ms Brown and representatives of the Department otherwise in accordance with the Department’s Enterprise Agreement, performance management policies, Procedures for Determining Breaches of the APS Code of Conduct, and the Australian Public Service Commissioner’s Directions 2016; and

(11)    the purpose of Mr Mason, Ms Brown and Ms Buckland with respect to the investigation was to:

(a)    obtain or procure complaints and/or evidence of the applicant’s conduct and performance;

(b)    provide a justification for the removal of the applicant from his position within the Department by imposing a sanction under s 15 of the PS Act or managing the performance of the applicant; and

(c)    otherwise than in accordance with a fair and reasonable process conducted in accordance with applicable requirements and standards.

4    In late March 2019, the Department engaged Ms Deegan, a consultant from Ashurst, to undertake an investigation into complaints concerning the applicant’s performance and behaviour and to determine whether or not the alleged conduct of the applicant should be referred for formal investigation in relation to a suspected breach of the Code of Conduct, which is found in s 13 of the PS Act.

5    On 17 April 2019, Ms Deegan prepared a report in which she found that there was sufficient evidence to initiate a formal investigation for suspected breaches, by the applicant, of elements of the Code of Conduct.

6    On 6 May 2019, the applicant’s employment was suspended. The applicant contends that on that day, he was for the first time notified of the facts of the complaints made against him, which complaints included conduct that was alleged to have occurred as far back as 2014.

7    On or about 8 September 2020, and following an investigation by Ms Spivey of Ashurst, the Department notified the applicant that it had made a decision that the applicant had breached ss 13(3) and (11)(a) of the PS Act (Breach Decision). The applicant contends that in the course of making the Breach Decision, the Department, inter alia:

(1)    only interviewed and obtained evidence from the complainants;

(2)    prevented the applicant from obtaining evidence by:

(a)    directing him not to communicate with witnesses;

(b)    directing witnesses to not communicate with him; and

(c)    restricting his access to documents;

(3)    refused to interview or obtain evidence from witnesses identified by the applicant; and

(4)    refused to investigate and obtain evidence in relation to matters raised by the applicant about the origin of the complaints.

8    The applicant also contends that:

(1)    the findings of breach:

(a)    relate to conduct that occurred during the period 2014 to 2018 – a period of up to six years before the Breach Decision;

(b)    were based upon an assessment of the complainants’ credibility and reliability, and were not corroborated by contemporaneous documents;

(2)    those findings were, in large part, a result of the consistency of the complainant’s evidence, including in respect of findings that:

(a)    the applicant raised his voice and the tone of his voice changed in a way that could reasonably be perceived as “aggressive or defensive”;

(b)    the applicant stood over Ms Church and possibly Ms Brown;

(3)    the reason given for not interviewing witnesses identified by the applicant was that the delegate’s investigator would have been “unable to place significant weight on that evidence in light of the consistent evidence of each of the eight witnesses interviewed” and that this occurred despite a report prepared for the delegate identifying that:

(a)    there was noticeable similarity between the complainants’ accounts of the incidents and behaviours the subject of the allegations, particularly in the language the complainants used to describe the relevant incidents or behaviours;

(b)    the consistency was likely the result of various factors, including that the complainants had discussed their concerns about the applicant, had jointly met with representatives of the Department’s Human Resources Branch, and had jointly prepared documents;

(c)    the complainants also at times referred to being aware of incidents or behaviours the subject of the allegations to which they were not a party or did not witness, suggesting that those incidents or behaviours had been the subject of discussion between the complainants;

(d)    despite their previous recounting of the incidents or behaviours said to be of concern to them, it was difficult to elicit further particulars from the complainants about those incidents or behaviours; and

(e)    the majority of the incidents and behaviours the subject of the allegations related to personal interactions between the applicant and the complainants and there was limited documentary evidence to support those allegations; and where documentary evidence existed, it was not, for the most part, contemporaneous with the relevant interaction and had been prepared sometime after.

9    On 6 November 2020, the applicant applied to the second respondent (Commissioner) for a review of the Breach Decision. On 3 February 2021, the Commissioner made a recommendation under reg 5.28 of the Public Service Regulations 1999 (Cth) to the Department to confirm the Breach Decision (Recommendation to Confirm Breach Decision).

10    On 17 February 2021, the Department made a decision under reg 5.32 of the Regulations to accept the Commissioner’s recommendation (Confirmation of Breach Decision).

11    On 14 April 2021, the applicant was notified that the Department had made a decision to impose sanctions on the applicant under s 15 of the PS Act (Sanction Decision). On 14 May 2021, the applicant applied to the Commissioner for review of the Sanction Decision.

12    On 24 May 2021, the applicant was demoted to an EL1 level, with a consequent reduction in his remuneration.

13    On 2 July 2021, the Commissioner made a decision under reg 5.28 of the Regulations to make a recommendation to the Department to confirm the Sanction Decision (Recommendation to Confirm Sanction Decision).

14    On 9 July 2021, the Department made a decision to accept the recommendation of the Commissioner to confirm the Sanction Decision (Confirmation of Sanction Decision).

15    In this proceeding, the applicant seeks an extension of time in which to lodge an application for orders for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) of the Breach Decision, the Recommendation to Confirm Breach Decision, the Confirmation of Breach Decision, the Sanction Decision, the Recommendation to Confirm Sanction Decision and the Confirmation of Sanction Decision. The applicant filed a draft originating application, which set out detailed grounds, supported by detailed particulars.

16    As part of this proceeding and on 1 November 2021, the Department was ordered to provide to the applicant by way of discovery “the brief of documents that were before the relevant Breach and Sanction decision-makers … being the documents considered in arriving at both the Breach and Sanction decisions”.

17    On 31 January 2023, I made orders concerning another discovery application made by the applicant, which application was made and determined by reference to the matters pleaded in the draft originating application. My reasons for doing so are published as Wilson v Secretary, Department of Agriculture, Fisheries and Forestry [2023] FCA 29 (Wilson (No 1)).

18    On 21 August 2023 I made orders, by consent, allowing the applicant to file an amended draft originating application, and that document was lodged on 22 August 2023.

19    The parties have subsequently filed their evidence. The applicant has filed affidavits of Mr Grocott, Ms Pope, Mr Dang and himself. The respondent has filed affidavits of Mr Mason, Ms Brown, Ms Buckland and Mr Buckland.

20    On or about 26 March 2024, the applicant served a notice to produce upon the Department, by which he sought the production of 28 categories of documents. There followed an exchange of correspondence between the solicitors for the applicant and the solicitors for the Department concerning the notice to produce, which produced concessions from both, including an agreement by the Department to produce certain categories of documents.

21    On 5 July 2024:

(1)    the applicant filed an interlocutory application seeking: (a) orders requiring the first respondent to provide discovery of 17 categories of documents which largely correspond to paragraphs of the notice to produce pressed by the applicant; and (b) leave to issue a subpoena to Ms Holyland of Ascend HR; and

(2)    the Department filed an interlocutory application seeking orders setting aside particular paragraphs of the notice to produce.

C.    DISCOVERY

22    It is convenient to deal first with the applicant’s discovery application.

C.1    Generally

23    As I noted in Wilson (No 1), the discretion to order a party to provide discovery is informed by the mandate that such an order is not to be made unless it would facilitate the just resolution of the proceeding quickly, inexpensively and efficiently as possible: see ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) and r 20.11 of the Federal Court Rules 2011 (Cth). It is also informed by the considerations in Part 10 of the Court’s Central Practice Note including in particular those in cll 10.6 and 10.7. Further, in administrative law cases such as the present, discovery will not be ordered unless a party provides an acceptable justification for this to occur: see the Administrative and Constitutional Law and Human Rights Practice Note at [8.1].

24    The applicant’s central contention is that discovery should be ordered because the documents sought go directly to proof of the factual allegations that he has made and which are summarised above; including by challenging the affidavit evidence filed by the Department (particularly the evidence of Ms Brown).

25    It is convenient to test this contention by reference to the proposed discovery categories, grouped as follows.

C.2    Categories 1 and 2

26    Categories 1 and 2 are:

1.    Documents recording or evidencing any decision by Melissa Brown for the Editors to report directly to her in or around 2018 instead of the Applicant, limited to:

a.    a report, extract, or screenshot from any electronic human resources system or performance management system (Employee System) recording the Editors reporting and supervisory lines within the Communication Branch and the Production Section in the years 2017 and 2018;

b.    a report, extract, or screenshot of any Employee System recording or evidencing changes made to the Editors reporting and supervisory lines within the Communication Branch from June 2017 to 31 December 2018, including any audit report or metadata contained or recorded within the Employee System in relation to any such changes;

c.    records of supervisor performance reports and discussions of the Editors annual performance management reviews conducted in 2017 and 2018;

d.    organisational charts that include the Communication Branch and Production Section current in 2017 and 2018;

e.    the Editors’ duty statement, position description and/or work level standards current in 2017 and 2018;

f.    the Applicant’s duty statement, position description and/or work level standards current in 2017 and 2018; and

g.    emails or file notes recording Melissa Brown informing the Editors that the Editors were to report directly to Ms Brown and not the Applicant.

2.    Emails or file notes recording Melissa Brown informing the Applicant in 2018 about the Editors Complaint and/or the decision for the Editors to report directly to Melissa Brown instead of the Applicant.

27    As noted above, the applicant contends that the Ascend HR investigation was undertaken for an improper purpose. The applicant contends that this is, in part, to be inferred from Ms Brown’s personal animus towards him, which he contends was manifest in her conduct in excluding the applicant, by communicating directly with members of staff of the Production Section, and making decisions about employees within that section without the applicant’s knowledge.

28    Ms Brown has deposed that:

(1)    in or around 2018, the Editors approached her and indicated that they were uncomfortable reporting directly to the applicant and that he had behaved in a manner that they perceived as inappropriate;

(2)    following that conversation, Ms Brown agreed to the Editors reporting directly to her, instead of the applicant;

(3)    she informed the applicant that there had been concerns raised and as a result the Editors would now report to Ms Brown; and

(4)    this occurred prior to the Ascend HR investigation.

29    The applicant contends that he was not informed by Ms Brown or otherwise made aware that there had been a change in reporting lines for the Editors until he read Ms Brown’s affidavit.

30    Thus, there is an issue as to whether Ms Brown made a decision in or around 2018 that the Editors were to report directly to her instead of to the applicant and whether Ms Brown informed the applicant of such a decision. The documents sought appear to be directly relevant to those issues.

C.2    Categories 3 and 4

31    Categories 3 and 4 are:

3.    Emails and file notes recording communications between Melissa Brown, Neal Mason and/or Emma Connell during the period 1 January 2018 to 31 May 2018 regarding engaging a consultant to review the operation of the Production Section (Ascend Process).

4.    Documents recording Neal Mason approving the Department engaging a consultant as part of the Ascend Process from 1 January 2018 to 17 August 2018.

32    As noted above, the applicant alleges that Ascend HR was engaged for an improper purpose. The evidence served on behalf of the applicant includes evidence of Mr Grocott and Mr Dang that Ms Brown suggested that the applicant was the focus of the investigation.

33    The documents sought in these categories appear to be directly relevant to the purpose, or purposes, for which Ascend HR was engaged. Those documents are also likely to be directly relevant to an assessment of the evidence of:

(1)    Ms Brown, that – following discussions with Mr Mason and Ms Connell – a consultant was to be engaged to review the operation of the Production Section and undertake a process of team building because it appeared to Ms Brown that that section was not operating optimally; and that the Ascend HR investigation was not commenced with the intention of removing the applicant from his position; and

(2)    Mr Mason, that the purpose of the Ascend HR investigation was to undertake a review of the Production Section as it appeared that that section was not operating as effectively as it could be; and that investigation was not commenced with the intention of reviewing the applicant’s behaviour or conduct.

C.3    Categories 5 and 17

34    Categories 5 and 17 are:

5.    Emails sent or received, and calendar invites (sic) sent, received or entered, file notes made, and documents prepared by or on behalf of Melissa Brown in relation to:

a.    the meeting attended by Melissa Brown and members of the Production Section in or around September 2018 in relation to Ascend being engaged;

b.    the meeting attended by Melissa Brown and members of the Production Section in or around December 2018 in relation to the Department having received a report from Ascend.

…

17.    Emails sent or received, and calendar invites (sic) sent, received or entered, file notes made, and documents prepared by or on behalf of Melissa Brown in relation to the meeting attended by Melissa Brown with the Production Section during the period 17 April 2019 to 6 May 2019 in relation to the Ascend Process.

35    The applicant contends that he was not invited to meetings concerning the Ascend HR investigation or that such meetings occurred at times when he could not attend; and that during these meetings Ms Brown:

(1)    informed staff of the Production Section that Ascend HR had been engaged because complaints had been received about the applicant’s conduct, to undertake interviews and prepare a report in relation to the applicant;

(2)    directed or requested that staff provide information to Ascend HR regarding the applicant’s conduct; and

(3)    said words to the effect that “I know what I want as an outcome from this process, however, we would like to hear from you about your thoughts on [the applicant’s] conduct”.

36    The applicant has served evidence in support of these allegations from Mr Grocott and Mr Dang .

37    Ms Brown deposes to attending the three meetings identified in these categories with staff in the Production Section in relation to the Ascend HR investigation. The applicant contends that he was unaware that Ms Brown had attended these meetings until he read Ms Brown’s affidavit.

38    The documents sought are likely to be relevant to what occurred at those meetings and in particular whether Ms Brown made the statements that she is alleged to have made (see [35] above).

C.4    Categories 6, 7, 15 and 16

39    Categories 6, 7, 15 and 16 are:

6.    Emails between one or more of the following people during the period 1 June 2018 to 31 January 2019 about the information they intended to give or gave to Ascend about the Applicant:

a.    one or more of the Editors;

b.    Ryan Genero;

c.    Dawn Kelly;

d.    Lawrence Gardner;

e.    Greg Richardson; and

f.    Thomas Buckland.

7.    Emails from the following staff of the Production Section providing information about the Applicant to Kylie Holyland as part of the Ascend Process between 1 July 2018 and 12 December 2018.

a.    one or more of the Editors;

b.    Ryan Genero;

c.    Dawn Kelly;

d.    Lawrence Gardner;

e.    Greg Richardson;

f.    Thomas Buckland.

…

15.    Emails between one or more of the following people about the information they gave or intended to give during the interviews conducted between 25 March 2019 and 17 April 2019 by Barbara Deegan of Ashurst in relation to investigating complaints about the Applicant

a.    one or more of the Editors;

b.    Ryan Genero;

c.    Dawn Kelly;

d.    Lawrence Gardner;

e.    Greg Richardson; and

f.    Thomas Buckland.

16.    Emails between one or more of the following people about the information they gave or intended to give during the interviews conducted between 6 and 14 June 2019 by Alison Spivey of Ashurst in relation to investigating complaints about the Applicant:

a.    one or more of the Editors;

b.    Ryan Genero;

c.    Dawn Kelly;

d.    Lawrence Gardner;

e.    Greg Richardson; and

f.     Thomas Buckland.

40    As set out at [2(4)] above, each of the persons described in subparagraphs (a) to (f) of each of categories 6, 7, 15 and 16 was a member of staff in the Production Section who complained about the applicant.

41    The applicant has alleged that various complainants collaborated and colluded in the making of their complaints and the preparation of evidence in support of those complaints. He has served evidence from Ms Pope that during the Ascend HR investigation:

(1)    she met with Mr Buckland, Ms Liz Keneally, Mr Genero and Mr Mason’s Executive Assistant during which meeting Mr Buckland said:

We all agree that [the applicant] is not a good manager, so we all need to give negative answers in our interviews. We need to ensure that everyone says the same things about [the applicant], so we are all on the same page.

and others present expressed agreement; and

(2)    although she did not attend further meetings, Mr Buckland told her a number of times that:

We need you to come to the meetings so that we can talk about what we are going to say about [the applicant].

42    Mr Buckland has denied making the statements attributed to him by Ms Pope.

43    The applicant also contends that an inference of collusion between complainants is available from, inter alia, the following passage of a document produced by the Department:

6.2    Credibility of witnesses

Each of the witnesses involved in this investigation, including [the applicant], presented as credible with a generally sound recollection of the relevant events (where they were able to recall those events). Many of the inconsistencies between [the applicant’s] account and the accounts of other witnesses can be explained by differences in each party’s perception of the context and intention behind particular actions.

There was a noticeable similarity between the complainants’ accounts of the incidents and behaviours the subject of the allegations, particularly in the language the complainants used to describe the relevant incidents or behaviours.

I consider that this consistency is likely the result of:

•    the incident or behaviours underpinning the allegations against [the applicant] having been previously recounted by the witnesses in other forums, including the review undertaken by Ascend; and

•    discussions between the complainants about their concerns in respect of [the applicant’s] conduct over some period of time prior to making complaints in December 2018.

It is clear that Ms Rossiter, Ms Church and Ms Wiles discussed their concerns about [the applicant’s] conduct as they jointly prepared the document entitled “Code of Conduct”, and met together with HR representatives on 17 December 2018. The material provided to me by the Department discloses that other complainants attended meetings with HR together to discuss their concerns about [the applicant] and his conduct. The complainants also at times referred to being aware of incidents or behaviours the subject of the allegations that they were not a party to or did not witness, suggesting that those incidents or behaviours had been the subject of discussion between complainants.

I further note that:

•    despite their previous recounting of the incidents or behaviours said to be of concern to them, it was difficult to elicit further particulars from the complainants about those incidents or behaviours; and

•    the majority of the incidents and behaviours the subject of the allegations relate to personal interactions between [the applicant] and the complainants. There is limited documentary evidence to support the allegations. Where documentary evidence exists (for example, file notes), it is not, for the most part, contemporaneous with the relevant interaction and has been prepared some time after.

I have taken these matters into account in determining the weight to be given to the complainants’ evidence, and making the factual findings reflected in this report and my recommendations regarding breach of the APS Code of Conduct.

(emphasis added, save for the heading)

44    The documents sought in categories 6, 7, 15 and 16 appear likely to be directly relevant to a determination of the allegations of collusion, including as to whether the Court should accept the evidence of Ms Pope or Mr Buckland as outlined above.

C.5    Categories 8 and 9

45    Categories 8 and 9 are:

8.    Documents recording or evidencing communications between Melissa Brown and Kylie Holyland between 9 November 2018 and 12 December 2018 about changes to be made to the Ascend Report, including telephone logs.

9.    Emails, file notes and other documents recording communications between Melissa Brown and Neal Mason between 9 November 2018 and 12 December 2018 about changes to the Ascend Report, including but not limited to any emails sent to Neal Mason attaching a copy of the Ascend report prior to 11 December 2018.

46    As noted at [3(4)] above, the applicant has alleged that Mr Mason and Ms Brown amended the Ascend HR report that had been provided by Ms Holyland of Ascend HR as a final report, so as to:

(1)    remove text that recorded in effect that Ascend HR had been engaged to review the conduct and performance of the applicant;

(2)    add material that would assist the Department to impose sanctions on the applicant under s 15 of the PS Act, and to undertake performance management of the applicant, by including specific examples of the applicant’s conduct and performance; and

(3)    remove recommended action that would be inconsistent with the Department undertaking action to remove the applicant from his position, being the undertaking of counselling and coaching of the applicant in relation to the content of the Ascend HR report.

47    Ms Brown rejects the applicant’s allegations as to the purpose of these changes. She deposes that:

(1)    on around 9 November 2018, she received a “first draft” of the Ascend HR Report (I note that the email exhibited to her affidavit as evidence of such receipt refers to the report as “final” and foreshadows the sending of an invoice);

(2)    on 10 December 2018, Ms Holyland sent to Ms Brown an amended version of her report that made “substantial amendments to her draft of 9 November 2018”. In this regard, Ms Brown exhibits an email from Ms Holyland dated 10 December 2018 that identifies that those changes were:

(a)    the addition of specific examples of poor performance and behaviour;

(b)    a section added on the workplace behaviour of the applicant;

(c)    removing “Agreed next steps by Ascend HR”;

(3)    she discussed the report with Mr Mason and he suggested further changes be made to the report. Ms Brown deposes that they wanted to ensure that the report could easily be understood and that the information given to Ascend HR had been appropriately captured;

(4)    on 11 December 2018, Ms Holyland sent to Ms Brown a further draft of her report, indicating that Mr Mason’s suggestions had been incorporated;

(5)    on 12 December 2018, Ms Holyland sent to Ms Brown two further drafts of her report and then the final version; and

(6)    in her experience it was common practice to receive documents in draft and comment upon them.

48    The documents sought in categories 8 and 9 appear to be directly relevant to the nature and purpose of the changes made to the Ascend HR report, and to testing the evidence of Ms Brown.

C.6    Categories 10 and 11

49    Categories 10 and 11 are:

10.    Emails sent or received, calendar invites (sic) sent, received or saved, and files notes prepared:

a.    by Melissa Brown and Ashleigh Buckland about any meeting between Melissa Brown and Ashleigh Buckland held between 11 to 17 December 2018 in relation to the Ascend Report and/or the Applicant;

b.    by Melissa Brown and/or Neal Mason about any meeting between Melissa Brown, Neal Mason, and the Applicant on 11, 13, 18 and 20 December 2018 in relation to the Ascend Report;

c.    by Melissa Brown about any meeting between Melissa Brown and one or more of the following people during the period 11 December 2018 to 20 December 2018 in relation to any complaint regarding the Applicant;

i.    one or more of the Editors;

ii.    Ryan Genero;

iii.    Dawn Kelly;

iv.    Lawrence Gardner;

v.    Greg Richardson; and

vi.    Thomas Buckland.

11.    Calendar invites (sic) sent, received or saved, and emails sent or received by Ashleigh Buckland, Renee Skilling and/or Bianca Norton arranging for the following people to attend a meeting on the following dates:

a.    Ashleigh Buckland and the Editors on 17 December 2018;

b.    Ashleigh Buckland and Lawrence Gardner and Gregory Richardson on 17 December 2018;

c.    Renee Skilling and Thomas Buckland on 17 December 2018;

d.    Bianca Norton and Ryan Genero; on 20 December 2018;

e.    Ashleigh Buckland and Dawn Kelly on 20 December 2018.

50    As foreshadowed at [3(5) to (7)] above, the applicant alleges that:

(1)    on the day the Ascend HR report was finalised, Ms Brown provided it to Ms Buckland for the purpose of action being taken against the applicant under s 15 of the PS Act, and this occurred prior to: (a) it being provided to the applicant; or (b) the Department obtaining any response from the applicant as to its contents;

(2)    Ms Buckland informed Ms Brown that the Ascend HR Report could not be used as it had not been prepared for the purposes of action being taken under s 15 of the PS Act;

(3)    Ms Brown and Ms Buckland then met with the complainants and directed, requested or initiated complaints about the applicant; and

(4)    Ms Buckland and/or Ms Norton gave the Editors advice as to how the applicant could be quickly removed from his position, the types of evidence that would be required, and how the complaints about the applicant could be presented so as to constitute a breach of s 15 of the PS Act.

51    The applicant also alleges that:

(1)    Mr Mason and Ms Brown representing to the applicant that he would have a reasonable opportunity to be heard in response to the Ascend HR report; and

(2)    Ms Brown purportedly undertaking a performance management process against the applicant.

52    Ms Brown deposes that:

(1)    the Ascend HR report was finalised on 12 December 2018;

(2)    after receiving that report, she was concerned that it referred to serious conduct that could involve workplace safety issues (including allegations of “intimidating” and “aggressive” behaviour);

(3)    on or before 17 December 2018, she spoke with Ms Buckland and told her that the Ascend HR report had been received, expressed concern about the welfare of the Production Section team members, and asked what steps she should take in response to that report;

(4)    Ms Buckland told Ms Brown that the Conduct and Performance Team was unable to take steps in response to the Ascend HR report because that report had not been prepared for such a purpose, and that in order for any further steps to be taken in response to the concerns being raised, that members of the Production Section would need to “voluntarily make complaints to the Conduct Team”;

(5)    Ms Buckland suggested that Ms Brown speak with members of the Production Section about the report, and “tell them how they could raise their grievances if they wished”, and that, if team members chose to make a complaint, they could contact Ms Buckland;

(6)    she met with the Production Section staff and mentioned that she and Mr Mason had received the Ascend HR report and were considering it, and that staff members could approach her about any issues that concerned them;

(7)    various members of the Production Section staff approached her regarding their concerns about the applicant;

(8)    she did not have a group meeting with complainants, but spoke to them as they approached her (for example, the Editors approached her as a group);

(9)    the staff members indicated that they had reported their concerns in the Ascend HR report and wanted to know whether Ms Brown would be taking action in response to their concerns;

(10)    she told them “we” (I infer Mr Mason and Ms Brown) were considering the Ascend HR report;

(11)    she followed Ms Buckland’s advice and told any team members that approached her how they could raise their grievances “with HR” if they chose to; and

(12)    meetings occurred with the applicant in relation to the Ascend HR report on 13, 14 and 18 December 2018 that included conduct by the applicant that gave rise to a complaint by Ms Brown against the applicant.

53    Ms Buckland deposes that:

(1)    on or before 17 December 2018, she was contacted by Ms Brown in relation to the Ascend HR Report;

(2)    Ms Brown stated that the Ascend HR report identified that members of staff in the Production Section had what appeared to be serious concerns regarding the conduct of the applicant;

(3)    she told Ms Brown that:

(a)    although the Ascend HR report raised concerns, it could not be used in any Code of Conduct process as it had not been commissioned for that purpose;

(b)    if individuals held concerns about the conduct or behaviour of others, they could raise those concerns with the Conduct and Performance Team; and

(4)    between 17 and 20 December 2018, Ms Buckland received complaints from various complainants.

54    The documents sought in categories 10 and 11 appear to be directly relevant to the question of whether the Ascend HR report was provided to the Conduct and Performance Team before it was provided to the applicant. Those documents also appear to be directly relevant to the applicant’s allegation that Ms Brown and Ms Buckland subsequently met with the complainants and initiated the complaints that were made.

C.7    Category 12

55    Category 12 is:

The Department’s written policies, procedures, or guidelines about the performance management of staff or misconduct current during the period 1 June 2017 to 6 May 2019.

56    As noted at [3(10)] above, the applicant has alleged that the Ascend HR investigation was conducted otherwise than in accordance with the, inter alia, the performance management policies, procedures and directions of the Department.

57    He seeks discovery of written policies, procedures and guidelines current for the period 1 June 2017 to 6 May 2019. Those documents appear to be self-evidently centrally relevant to the applicant’s allegations and it might be expected that they are readily producible.

C.8    Categories 13 and 14

58    Categories 13 and 14 are:

13.    Emails between one or more of the following people during the period 16 January to 17 January 2019 about Emma Rossiter’s email to Ashleigh Buckland sent 21 December 2018 or Ashleigh Buckland’s email to Emma Rossiter, Julia Church and Jane Wiles sent 16 January 2019 both emails with the subject ‘Information requested’:

a.    Ashleigh Buckland;

b.    Emma Connell;

c.    Melissa Brown;

d.    Emma Rossiter;

e.    Julia Church;

f.    Jane Wiles.

14.    Records of telephone calls received or made by Ashleigh Buckland and/or Emma Connell to or from one or more of the following people on 16 January to 17 January 2019.

a.    Emma Rossiter;

b.    Julia Church;

c.    Jane Wiles.

59    As noted at [3(8) and (9)] above, the applicant contends that:

(1)    on 21 December 2018, the Editors submitted a joint complaint “as one of several submissions” from the Production team in response to the request by Ms Brown and Ms Buckland and was made on the basis of the guarantee that the applicant would be removed from his position if the Code of Conduct complaints were not substantiated;

(2)    on 16 January 2019, Ms Buckland sent an email to the Editors to “preserve any formal Code action” and which suggested to the Editors that: (a) Ms Brown had not requested that the complainants meet with Ms Buckland; and (b) the “guarantee” had not been provided as an inducement for the making of the complaints.

60    Those contentions are supported by emails dated 21 December 2018 and 16 January 2019.

61    Ms Buckland deposes that:

(1)    on 21 December 2018, she received the email from the Editors that referred to the guarantee which the Editors understood Ms Buckland had provided; and

(2)    on 16 January 2019, after returning from leave, Ms Buckland responded to clarify that she had not provided any such guarantee.

62    The documents sought appear likely to be directly relevant to the applicant’s allegations as to the purpose of the investigation (and possibly to his allegations of collusion) as well as Ms Buckland’s evidence that she did not provide the guarantee to the Editors.

C.9    Summary as to the proposed categories

63    For the reasons set out above, I am satisfied that the documents sought in the proposed categories are likely to be directly relevant to matters requiring determination in the proceeding. Further, the categories are targeted, seeking particular documents within a suitably narrow compass. I am satisfied that discovery is necessary to facilitate the just resolution of the proceeding.

C.10    The Department’s objections

64    I turn now to consider the Department’s objections to the proposed discovery categories.

65    The Department opposed the application for discovery on the following bases.

66    The Department’s first contention is that the applicant’s application of discovery impermissibly seeks to revisit the application that was determined in Wilson (No 1). I do not accept this submission. The application that was determined in Wilson (No 1) concerned the draft originating application and was determined prior to the filing of affidavit evidence by the parties. The present application is to be determined in a context in which the amended draft originating application (which expanded the applicant’s case) and the affidavit evidence of each of the parties have been filed, and the proposed discovery categories are considerably more focussed than the categories advanced in Wilson (No 1).

67    Although there is, as the Department has submitted, some overlap between the categories of discovery that were rejected in Wilson (No 1) and the categories of discovery now sought, I do not regard this as an impediment to the application, given the change in the context in which the present application is to be determined, and in view of the more precise manner in which the categories have now been drafted.

68    The Department’s second contention is that the documents sought are at best of peripheral relevance. I disagree, for the reasons set at C.2 to C.9 above.

69    The Department’s third contention is that the discovery would be time-consuming and costly. In this respect the solicitor for the Department, Ms Byrne, has provided an estimate of the time likely to be involved in providing the discovery sought. I have considered that evidence but do not regard it as a reason not to require the Department to provide the discovery sought in circumstances where: (1) it appears that some of the time involved is a function of the Department’s methods of storing documents; (2) the Department consented to the filing of the amended draft originating application; and (3) there is no suggestion that the Department lacks the resources to provide the discovery or that the costs of doing so would not be recoverable if the Department were to succeed in the proceeding.

70    The Department’s fourth contention is that the applicant has already received substantial disclosure from the Department as a result of the first two tranches of discovery. This may be so but, as previously discussed, this application falls to be considered against: (1) the amended draft originating application in circumstances where the Department consented to the filing of that document; and (2) the affidavit evidence of the parties, neither of which existed when the first two tranches of discovery were provided.

71    The Department’s fifth contention is that there is substantial overlap between the categories of discovery now sought and documents produced by the Department in answer to the requests made for production of documents pursuant to the Freedom of Information Act 1982 (Cth) (FOI Act). Ms Byrne gives evidence that the Department has released documents to the applicant in answer to requests made under the FOI Act for the following categories of documents (FOI categories):

(a)    any record of meetings between Ms Melissa Brown, Ascend HR and Mr Neal Mason around 15 May 2018 in relation to team development for the Production Section, or leadership management;

(b)    the terms of reference or work requests provided to Ascend HR on or about 15 May 2018, in relation to a review of the Production Section or the applicant’s leadership or management of the Production Section;

(c)    all communications or records between Ms Melissa Brown and Mr Neal Mason in relation to a review of the Production Section or the applicant’s leadership or management of the Production Section;

(d)    any record of any comment or other response requested by Ms Melissa Brown or Mr Neal Mason in relation to a draft of the Ascend HR report between 1 November 2018 and 31 December 2018;

(e)    each version of the draft Ascend HR report on staff interviews, provided by Ascend HR to Ms Melissa Brown or Mr Neal Mason in relation to a review of the Production Section or the applicant’s leadership or management of the Production Section;

(f)    any communication between Ms Melissa Brown and Mr Neal Mason and the assistant secretary responsible for the Conduct Section or any record in relation to either a performance management process or a Code of Conduct investigation into the applicant between 13 December 2018 and 6 May 2019;

(g)    any communication or record of communication from 1 December 2018 to 11 June 2019 between Ms Melissa Brown and Mr Neal Mason, to the assistant secretary responsible for the Conduct Section, concerning alleged disrespectful behaviour by the applicant toward Ms Melissa Brown;

and:

(h)    emails or file notes between Mr Neal Mason and Ms Melissa Brown from 1 December 2018 to 31 March 2019 regarding the applicant’s behaviour, the preparation of complaints in relation to his behaviour, and the conduct of the code of conduct investigation; and

(i)    any drafts or final copies of minutes to the First Assistant Secretary of the Integrity branch about the decision to invoke the procedures for determining a breach of the APS Code of Conduct in relation to the applicant.

72    The Department submitted in its written submissions (and without providing any further detail) that there is a “substantial overlap” between the FOI categories and the proposed discovery categories. In oral submissions, this submission was repeated by reference to proposed discovery categories 3, 4 and 5.

73    I have compared the proposed discovery categories and the FOI Categories. Having done so, I am satisfied that there may be some overlap between the discovery categories and the FOI categories (e.g., FOI category (c) and (d) and discovery categories 3 to 5 and 9). However, I am not satisfied that the overlap is so substantial that discovery ought not be ordered. The potential prejudice to the Department should be ameliorated by not requiring the Department to discover any documents it has previously provided to the applicant.

D.    THE NOTICE TO PRODUCE

74    I turn now to deal with the notice to produce (to the extent it is pressed).

75    As I have determined that the discovery sought should be provided, and there is a high degree of overlap between the categories in the notice to produce as pressed and the discovery categories my reasons with respect to the notice to produce may be expressed briefly.

76    It is well-established that a notice to produce has the same coercive effect as a subpoena. A subpoena (and thus a notice to produce) may be set aside if it amounts to an abuse of process: Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [60] to [61] (Bell P, McCallum JA agreeing at [98]); Seven Network (Operations) Limited v Fairfax Media Publications Pty Limited [2023] FCAFC 185; (2023) 418 ALR 284 at 298 [38] (Wheelahan, Anderson and Jackman JJ).

77    The Department submits that the notice to produce requires the Department to provide discovery and that the service of the notice to produce rather than an application for further discovery amounts to an abuse of process. In this context, it is important to note that the vice in requiring the recipient of a subpoena or a notice to produce to provide discovery is that it places an obligation on the recipient to decide whether documents in its possession are discoverable because they relate to the issues in the proceeding: see McGrath v HNSW Pty Limited (No 2) [2015] FCA 442; (2015) 232 FCR 532 at 538 [30] (Gleeson J), citing Lucas Industries Ltd v Hewitt (1978) 18 ALR 555 at 569 (Smithers J, Bowen CJ and Nimmo J agreeing). Having considered the categories of documents sought in the notice to produce I am not satisfied that they call for discovery by the Department in the relevant sense. In reaching this conclusion, I have not overlooked that the categories of documents sought in the notice to produce contain some expressions such as “in relation to”, but the use of such expressions is context-dependent (see e.g., Roberts-Smith v Fairfax Media Publications Pty Limited (No 43) [2023] FCA 886 at [15] to [18] (Besanko J)) and in the context of the present notice to produce do not require the provision of further discovery (nor operate oppressively).

78    The Department also submits that the notice to produce requires the production of documents of peripheral relevance and would be oppressive because of the time required to answer the notice to produce. For the reasons set out above with respect to the discovery categories I do not accept this submission.

E.    THE SUBPOENA

79    The applicant seeks the issue of a subpoena to Ms Holyland (of Ascend HR) for the production of:

1.    Emails to and from Melissa Brown, Neal Mason, Katey-Lee Buckley, and/or Carlin Watt, each of the then Department of Agriculture and Water Resources (Department), and file notes recording communications with Melissa Brown, Neal Mason, Katey-Lee Buckley, and/or Carlin Watt sent, received or prepared during the period 1 September 2018 to 12 December 2018 regarding the preparation of or amendments to the Ascend HR; Production Section Review and Team Building Report on Staff Interviews (Ascend Report).

2.    Any document recording or evidence (sic) the reason for the amendments to the Ascend Report made after the Report was attached to the email from Kylie Holyland to Melissa Brown sent 9 November 2018 at approximately 6:11 pm and before it was attached to an email from Kylie Holyland to Melissa Brown sent on 10 December 2018 at approximately 9:00 am.

3.    File notes or other records of the interviews conducted by Kylie Holand with staff of the Department between 28 September 2018 and 2 November 2018 in relation to the preparation of the Ascend Report (Staff).

4.    Emails or other documents recording information provided by the Staff about John Wilson received during the period 1 September 2018 to 9 November 2018.

80    The Department submits that leave should not be given because the proposed subpoena is impermissibly being used as an alternative to discovery. I do not accept this submission. Further, the proposed subpoena is addressed to a third party, who might be expected to have documents unavailable on discovery by the Department; and the categories of the subpoena are not framed in a manner requiring production in the nature of discovery.

81    The Department also submits that the relevance of the documents sought is doubtful. I do not accept this submission in view of the matters requiring determination which have been described earlier in these reasons for judgment.

82    Finally, the Department submits that the issue and answering of the proposed subpoena will likely delay the progress of the proceeding to a final hearing. There is no basis for this submission and it is rejected.

83    Thus, leave to issue the proposed subpoena should be granted.

F.    CONCLUSION

84    For the reasons set out above, the orders sought by the applicant for discovery and the issue of the subpoena should be made. The notice to produce should not be set aside.

85    As the applicant indicated that he wished to be heard on costs following the determination of the applications, I will allow the parties an opportunity to be heard on that issue if necessary, after conferral as to the form of orders to be made.

Associate:

Dated:    24 April 2025