Federal Court of Australia

Raghib v Stantec Australia Pty Ltd (Return of subpoena) [2026] FCA 1322

ORDERS

THE COURT ORDERS THAT:

1. The three subpoenas issued to Epiq Australia Pty Ltd ACN 120 213 381 at the request of the applicant be set aside.

2. The costs of this hearing be reserved.

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

REASONS FOR JUDGMENT

Ex tempore, revised 

WHEELAHAN J:

1 In this proceeding the applicant seeks judicial review of decisions of a Deputy President and the Full Bench of the Fair Work Commission which refused him a remedy and then refused permission to appeal in relation to claimed unfair dismissal from his employment.

2 The first respondent (Stantec) summarily dismissed the applicant from employment on the ground of serious misconduct. The applicant then brought an application in the Commission for a remedy under Part 3-2 of the Fair Work Act 2009 (Cth) (FW Act). After a final hearing, the Commission dismissed the applicant’s application, holding that the applicant had engaged in dishonest conduct. While the Commission held that there had been some procedural deficiencies relating to the applicant’s dismissal, these were comfortably outweighed by the gravity of the applicant’s serious misconduct with the result that the Commission was satisfied that the dismissal of the applicant was not harsh, unjust, or unreasonable: Raghib v Stantec Australia Pty Ltd [2025] FWC 2335 (PD).

3 The applicant sought permission to appeal to the Full Bench of the Commission under s 604 of the FW Act. Under s 400(1) of the FW Act the power to grant leave to appeal the decision under Part 3-2 was conditioned on the Full Bench being satisfied that it was in the public interest to do so. Furthermore, under s 400(2), an appeal from a decision under Part 3-2 on a question of fact can be made only on the ground that the decision involved a significant error of fact. The Full Bench determined the application on the papers and held that the applicant’s proposed grounds of appeal did not disclose an arguable case of error and did not consider that it was in the public interest to grant permission to appeal. Permission to appeal was therefore refused: Raghib v Stantec Australia Pty Ltd [2025] FWCFB 218.

Grounds of review

4 The applicant is self-represented, as he was before the Commission. This proceeding is currently fixed for hearing on 10 September 2026. By his amended originating application, the applicant raises five grounds of review. Grounds 1 to 4 concern the primary decision and Ground 5 concerns the decision of the Full Bench.

5 Ground 2 is in the following terms –

Ground 2: Material procedural unfairness concerning the late phone-record material

2.    The Primary Decision was affected by material procedural unfairness in the handling of proposed phone-record material and the associated ownership and geolocation assertions.

a.    During the hearing on 4 August 2025, Stantec’s counsel asserted, on the basis of newly obtained records, that [XXXX XXX 579] and [XXXX XXX 198] were both Stantec work-issued numbers and that the disputed message had been sent from Pascoe Vale, where counsel understood the Applicant lived. The Applicant immediately disputed the assertion concerning [XXXX XXX 198] and questioned how Stantec could have obtained phone records for his personal service. The ownership and location assertions were advanced together as objective support for Stantec’s case that the Applicant had sent the message to himself.

b.    The evidence and the Primary Decision materially contradicted the late ownership assertion. Ms Winsbury’s statement identified [XXXX XXX 198] as the Applicant’s usual mobile number, while her supplementary statement dealt separately with [XXXX XXX 579] as a second number. The evidence attributed to Ms Amanda Hughes concerned Stantec’s allocation and cancellation of [XXXX XXX 579]. Stantec’s transmission theory was that a message had been sent from [XXXX XXX 579] to [XXXX XXX 198]. The Primary Decision at [3] likewise identifies [XXXX XXX 579] as the work phone and [XXXX XXX 198] as the Applicant’s personal phone. The later Optus record is relied upon only to confirm service ownership of [XXXX XXX 198], not authorship, handset possession, transmission or location. The Optus email is aligned with Ms Windsbury’s statement surrounding the service being a personal mobile number of Mr Raghib.

c.    Deputy President Masson directed that the proposed records be provided to chambers and to the Applicant.

d.    The affidavit of Thomas Cockburn sworn on 2 April 2026 states that, during the adjournment ordered for that purpose, Stantec decided that the proposed material would not be tendered and therefore did not send it to chambers or to the Applicant.

e.    The hearing record does not record that decision or the reason for the departure from the direction being communicated to the Applicant when the hearing resumed.

eA.    Nor does the hearing record disclose that, when the hearing resumed, Stantec expressly withdrew or corrected the adverse assertions that both numbers were work-issued and that the disputed message had been sent from Pascoe Vale, or that the Deputy President was invited to disregard those assertions. The Applicant was therefore left to address an adverse evidentiary impression without access to the records said to support it.

f.    The Applicant therefore had no opportunity to inspect the proposed records, test their source, date range, scope or technical character, challenge the asserted ownership of [XXXX XXX 198], or determine whether the Pascoe Vale assertion represented reliable message-level geolocation, cell-site information, subscriber or billing data, a service address, or some other record incapable of locating the handset when the message was sent. Nor could he address the contradiction between the late assertion and Stantec’s existing evidence before the evidentiary process concluded.

g.    By email dated 15 April 2026, the Australian Government Solicitor informed the Applicant that chambers had conducted a thorough search and had not identified the requested document. The later material is relied upon only to clarify the historical procedure and materiality.

h.    The official hearing audio records the Deputy President describing the text-message issue as the direct evidence going to misconduct. The ownership and Pascoe Vale assertions were therefore capable of bearing directly on the central dishonesty allegation, the Applicant’s credibility and the valid-reason analysis.

i.    There was a realistic possibility that compliance with the direction, or timely disclosure that Stantec had withdrawn the proposed material together with an express withdrawal or correction of the ownership and geolocation assertions and a practical opportunity to respond, could have affected the reasoning or outcome. The alleged text-message fabrication was central to the findings concerning misconduct, credibility and valid reason. The Applicant does not ask the Court to determine who sent the disputed message or to determine the truth of the asserted location data.

6 The background to the above claims is that in the Deputy President’s reasons the Commission separately identified the applicant’s work-issued telephone number as XXXX-XXX-579 (PD [3], [53], [56]) and his personal telephone number as XXXX-XXX-198 (PD [3]). The Commission held that a screenshot of what purported to be a text message sent by a witness to the applicant’s personal mobile telephone number had been doctored by the applicant. The Commission held that the applicant’s claim that he had been sent the text message by the witness was a “complete fiction”, amounting to a “cynical fabrication” by the applicant to discredit and undermine the witness and the allegations that the witness had made: PD [81].

7 There is within the Court Book prepared for the hearing in this Court an audio recording of an exchange at the Commission hearing between counsel then appearing for Stantec and the Commission. Counsel stated to the Commission that both the 579 and 198 numbers were work numbers and that the first respondent could obtain records of the phones and the text messages that were sent. The applicant interjected, disputing that Stantec could have records of his personal 198 number. The Deputy President stated that he would stand the hearing down for five minutes to allow the telephone records to be provided to the Commission’s chambers and to the applicant. Upon the hearing resuming, no further reference was made to the documents and the cross-examination of the applicant continued.

8 Stantec has filed an affidavit of a law graduate employed by Stantec’s solicitors who was instructing counsel at the hearing. This is the affidavit of Thomas Cockburn dated 2 April 2026 which is referred to in the applicant’s grounds of review. Stantec is not bound to read that affidavit to the Court at the hearing, but if it is read it would be evidence that during the adjournment Stantec decided not to tender further material and that therefore no further material was provided to the Commission or to the applicant, and that upon the resumption of the hearing the cross-examination of the applicant continued.

The applicant’s subpoena to Epiq Australia Pty Ltd

9 Epiq Australia Pty Ltd (Epiq) was the transcript recorder at the Commission hearing. At an interlocutory hearing before the Court on 23 July 2026, the applicant foreshadowed that he was seeking a two to three minute audio file from Epiq which he would like to submit to the Court if it became available. I stated to the applicant that if he came into possession of another short excerpt of the audio recording on which he wished to rely, he should provide a copy to the solicitors for Stantec with notice that he wanted to rely on it, and that I would hear any argument at the hearing about whether it should be admitted into evidence.

10 The applicant then engaged in correspondence with Epiq. Epiq informed the applicant by email on 31 July 2026 that the recordings of discussions that occurred during an adjournment were considered confidential and would not be released without the specific approval of the Deputy President who heard the matter, or alternatively via a freedom of information request.

11 The applicant then pursued the matter with the Commission. By an email dated 7 August 2026, the Australian Government Solicitor acting on behalf of the Commission advised the applicant that it would not be releasing an unedited recording of the hearing before the Commission unless required to do so by the Court and referred the applicant to the Court’s Subpoenas and Notices to Produce Practice Note (GPN-SUBP).

12 On 12 August 2026 and then on 17 August 2026, the applicant made requests for leave to issue a subpoena directed to Epiq. These requests were refused because the documents sought by the draft subpoenas were extravagant in their scope and on their face amounted to an abuse of process.

13 On 20 August 2026, leave was given for a subpoena to be issued that was more confined in its scope. The subpoena that was issued seeks production by Epiq of that portion of the audio recording held by Epiq of the Commission’s hearing commencing immediately before the Deputy President directed that the proposed telephone record material be provided to the applicant and his chambers and the proceeding was temporarily adjourned and ending immediately after the proceeding resumed and the first substantive exchange following that adjournment. The initial return date was unsuitable because it post-dated the hearing of the proceeding. There is now a fresh subpoena that was issued and directed to Epiq that has been made returnable before me today.

14 Stantec lodged an objection to the subpoenas on the ground that they self-evidently sought privileged material. The privileged material was identified by Stantec as the recording of discussions between Stantec and its legal representatives, including counsel, which occurred in the Commission’s hearing room. Stantec claims that any audio captured would be a record of a confidential communication made for the sole or dominant purpose of obtaining legal advice or assistance. Stantec informed the applicant of its objection by email dated 3 September 2026.

15 The applicant disputed Stantec’s ground of objection. He submitted that legal professional privilege did not arise merely because lawyers and client representatives were speaking, but that it protected confidential communications made for the dominant purpose of giving or obtaining legal advice, or for use in existing or reasonably contemplated litigation. He submitted that a party claiming privilege bears the onus and that because Stantec had not reviewed the audio it could not advance an objection to the whole of the recording of the interval during adjournment of the hearing before the Commission. He submitted that the recording may also contain non-privileged procedural material involving other participants. The applicant referred to the terms of rr 24.19 and 24.20 of the Federal Court Rules 2011 (Cth) and the Court’s GPN-SUBP Practice Note. The applicant submitted that Stantec’s claims of privilege were relevant to the question of inspection but not production.

16 For its part, Epiq proposed to produce the audio recording to the Court in a sealed envelope and lodged a letter of objection dated 4 September 2026. Epiq’s grounds of objection were that it does not own the audio recording and that it is held solely as a service provider to the Fair Work Commission. Epiq stated that the Commission was the more appropriate source from which the recording should be sought, as the recording was under its control. Epiq objected to any inspection of, access to, release or use of the recording unless and until: the Court had determined the objection; the Commission had an opportunity to be heard; and appropriate protective directions had been made.

No legitimate forensic purpose

17 The separate steps for the production and inspection of subpoenaed documents under the Rules accord with the three-stage process for objecting to a subpoena identified by Moffitt P (Hutley JA and Glass JA agreeing) in National Employers’ Mutual General Insurance Association Ltd v Waind [1978] 1 NSWLR 372 at 381 –

The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise. It is the third step which alone provides material upon which ultimate decision in the case rests. In these three steps the stranger and the parties have different rights, and the function of the judge differs.

18 See also, ACN 117 641 004 Pty Ltd (in liq) v S&P Global, Inc (No 2) [2023] FCA 172 at [11] and [13] (Lee J).

19 There is however an anterior step. Before a subpoena is called on by a party, the party may be required to justify the legitimate forensic purpose of the subpoenaed documents. A subpoena that is not issued for a legitimate forensic purpose may be characterised as an abuse of process. The enquiry is not limited to the purpose of the party who procured the issue of the subpoena but may extend to the impact of the consequences for the proceeding: Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 at 102 (Beaumont J), citing Hamilton v Oades (1989) 166 CLR 486 at 502 (Deane and Gaudron JJ).

20 The overarching object in s 37M of the Federal Court of Australia Act 1976 (Cth) requires that in this case the question whether there is any legitimate forensic purpose in calling on the subpoena be addressed first to avoid unnecessary time, cost, and possible disruption to the hearing that might occur in addressing the objections to inspection. I determined to proceed down that procedural pathway first, exercising the power under s 37P of the Act and the Court’s implied power to control its own processes. Accordingly, I did not permit the subpoena to be called upon before hearing argument of the question of legitimate forensic purpose.

21 In Shaw v Yarranova Pty Ltd [2011] VSCA 55 at [26] Redlich and Mandie JJA summarised the relevant principles as follows –

the applicant must identify a legitimate forensic purpose for which access is sought, and establish that it is “on the cards” that the documents will materially assist his case. There will be no legitimate forensic purpose if, “all the party is doing is trying to get hold of the documents to see whether they may assist him in his case.” The court must both be satisfied that the documents are relevant to an issue and that there is something in the material then before the court that makes it appear likely that the documents will materially assist the applicant.

(Footnotes omitted.)

22 More recently, in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145; 118 NSWLR 336 the New South Wales Court of Appeal carefully reviewed the authorities and stated the principles in different terms. At [65], Bell P stated –

It is sufficient, in my view, to justify a subpoena as having been issued for a legitimate forensic purpose if the documents sought are “apparently relevant” or, to use the words of Nicholas J in ICAP at first instance, it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist. Of course, if it can be shown that the material assistance will be to the party that issued the subpoena, the prospect of the forensic purpose of the issuing party being impugned as illegitimate will be virtually non-existent.

(Emphasis in original.)

23 At [68] Bell P explained what is meant by “apparent relevance” and contrasted it to “fishing” –

There is a plain difference between “apparent relevance” and “fishing”, the latter being the metaphor that is frequently deployed in this area of discourse: see, for example, Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575. The word “apparent” admits of the possibility that the documents sought by way of subpoena may not ultimately turn out to be relevant. Their apparent relevance, however, should be able to be ascertained by an examination of the description or identification of the document or documents sought in the schedule to the subpoena in light of the issues in the case, as they present themselves on the pleadings, in particulars and/or in affidavits or witness statements if they have been filed or served at the time of the issue of the subpoena.

24 See also Brereton JA at [86], [89] and [96] and McCallum JA at [98]. I will apply the principles set out by the New South Wales Court of Appeal.

25 During the course of argument, the applicant accepted that the recording of any communications in the audio between Stantec and its lawyers, or between its lawyers, would either be privileged or not relevant. When asked then to identify the legitimate forensic purpose of the audio recording, the applicant stated that the only relevance was to a claim that the Deputy President came back onto the bench during the Commission hearing when the applicant was not present and which had not been recorded in the official recording which has been released. This is not a claim that the applicant makes in his grounds of review in the amended originating application, and there is no other rational basis — circumstantial or otherwise — to support this claim. Moreover, the terms of the subpoena do not confine the recording sought by reference to this claim. Therefore, the applicant has failed to demonstrate that the recording that has been sought by the subpoenas to Epiq has any apparent relevance to any issue in this proceeding.

26 The subpoenas issued and directed to Epiq at the request of the applicant will accordingly be set aside.

Associate:

Dated:    4 September 2026