Federal Court of Australia

Sharpin v Qantas Airways Limited [2026] FCA 1399

ORDERS

THE COURT ORDERS THAT:

1.    In accordance with rr 20.16 and 20.17 of the Federal Court Rules 2011 (Cth), by 4.00pm on 21 October 2026 the Applicant give discovery of all documents evidencing or recording any of the following experienced by the Applicant, which continued for longer than seven days, at any point in time between 1 January 2018 and 20 August 2024:

(a)    any of the following (no matter how minor):

(i)    any illness or injury;

(ii)    any bodily infirmity, defect or incapacity;

(iii)    any mental infirmity, defect or incapacity;

(iv)    any sequela of an illness, injury, infirmity, defect or incapacity mentioned in subparagraph (i), (ii) or (iii); or

(b)    any abnormal psychological state; or

(c)    drug addiction and drug dependence.

2.    By 4.00pm on 28 October 2026, the Applicant is to produce for inspection by the Respondent the documents discovered in accordance with Order 1 by electronic means, other than any document over which legal professional privilege is claimed.

3.    Costs be reserved.

4.    There be liberty to apply.

5.    The matter return for a case management hearing at 9.30am on 3 November 2026.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is an Amended Interlocutory Application filed by the respondent, Qantas Airways Limited ACN 009 661 901 (Qantas), on 26 August 2026, seeking orders that Mr Colin Sharpin (the applicant) give discovery of certain documents, pursuant to rr 20.12 and 20.15 of the Federal Court Rules 2011 (Cth) (FCR), and produce for inspection those documents by electronic means.

2    It is necessary to discuss the relevant background of the proceedings to give context to the parties’ submissions.

Relevant Background

3    On 16 September 2025, the applicant lodged for filing an Originating Application, seeking relief pursuant to the Fair Work Act 2009 (Cth) (FW Act). At material times Qantas has been Mr Sharpin’s employer.

4    In the Originating Application Mr Sharpin sought the following final orders:

1.    Pursuant to s.545 of the Fair Work Act 2009 (Cth) (the Act), declarations that the Respondent has by failing to comply with clause 25 of the Qantas Enterprise Agreement, contravened section 50 of the Act.

2.    Pursuant to s.545 of the Act, an order awarding compensation for loss suffered by the Applicant as a result of the contraventions.

3.    Pursuant to s. 546 of the Act, an order that the Respondent pay pecuniary penalties for its contraventions of the Act.

4.    Pursuant to s. 546(3) of the Act, an order that the Respondent pay any pecuniary penalty to the Applicant.

5.    Pursuant to s. 547 of the Act, an order that interest be payable on any order for compensation.

5    The Originating Application is supported by a Further Amended Statement of Claim lodged for filing on 16 February 2026 and an Amended Reply lodged for filing on 17 June 2026.

6    In response to the Originating Application, Qantas lodged for filing a Further Amended Defence on 24 April 2026.

7    On 2 July 2026, Registrar Buckingham made orders timetabling any discovery application to be made by either party. By way of Order 7 of those Orders, Registrar Buckingham ordered that, if agreement was not reached as to the categories sought for discovery, or for standard discovery, Qantas was to file by 4.00pm on 7 August 2026 any interlocutory application for discovery. Registrar Buckingham further ordered in Order 9 of those Orders that any interlocutory application for discovery made by Qantas be listed for a hearing on a date to be fixed after 21 August 2026.

8    On 10 August 2026, I made Orders by consent amending the date of compliance contemplated by Order 7 of Registrar Buckingham’s Orders made on 2 July 2026, allowing Qantas until 11 August 2026 to file any interlocutory application as to discovery. By way of Order 2 of the Orders made on 10 August 2026, I also ordered by consent that Mr Sharpin give discovery of the following documents, in accordance with rr 20.16 and 20.17 of the FCR:

1.    All documents recording or referring to:

(a)    Class 1 and/or Class 2 medical certificates issued to the Applicant pursuant the Civil Aviation Safety Regulations 1998 (Cth) (CASR) from 1 January 2018 to the date of this order; and

(b)    the name of any designated aviation medical examiner (DAME) who issued any of the medical certificates referred to in item 1(a) above.

2.     All documents evidencing, recording or referring to any appointments of the Applicant with any DAME from 1 January 2018 to the date of this order.

3.    All documents evidencing, recording or referring to communications between the Applicant and any DAME, or a medical practice at which any such DAME practiced, from 1 January 2018 to the date of this order.

4.    All documents evidencing, recording or referring to any appointments of the Applicant with any medical practitioner other than a DAME from 1 January 2018 to 20 August 2024.

5.     All documents evidencing, recording or referring to communications between the Applicant and any medical practitioner other than a DAME, or a medical practice at which any such medical practitioner practiced, from 1 January 2018 to 20 August 2024.

9    On 11 August 2026, Qantas lodged for filing an Interlocutory Application seeking the following orders:

1.    An order pursuant to rr 20.12 and 20.15 of the Federal Court Rules 2011 (Cth) (FCR), that on a date to be fixed by the Court, the Applicant give discovery of documents falling within the categories set out in Annexure A to this application in accordance with rr 20.16 and 20.17 of the FCR.

2.    An order that on a date to be fixed by the Court, the Applicant is to produce for inspection by the Respondent the documents discovered in accordance with prayer 1 by electronic means, other than any document over which legal professional privilege is claimed.

3.    Such further orders as the Court sees fit.

10    Annexure A of the Interlocutory Application included the following documents:

1.    All documents evidencing or recording any of the following experienced by the Applicant at any point in time between 1 January 2018 and 20 August 2024:

(a)    any of the following (no matter how minor):

(i)     any illness or injury;

(ii)    any bodily infirmity, defect or incapacity;

(iii)    any mental infirmity, defect or incapacity;

(iv)    any sequela of an illness, injury, infirmity, defect or incapacity mentioned in subparagraph (i), (ii) or (iii); or

(b)    any abnormal psychological state; or

(c)    drug addiction and drug dependence.

2.    All documents evidencing or recording any diagnosis of a medical condition, where the Applicant received that diagnosis from a medical professional (including, for the avoidance of doubt, any psychologist) between 1 January 2018 and 20 August 2024.

11    In support of the Interlocutory Application, and also on 11 August 2026, Qantas lodged for filing submissions and an affidavit of Ms Katherine Renee Dommerson affirmed on 11 August 2026 (Dommerson Affidavit).

12    On 21 August 2026, Mr Sharpin lodged for filing submissions and evidence in response to the Interlocutory Application.

13    On 25 August 2026, shortly before the hearing commenced, Qantas advised of its intention to seek leave to amend Annexure A of the Interlocutory Application. At the hearing on 25 August 2026, I granted Qantas leave and ordered, by way of Order 1 of the Orders made at the hearing, that Qantas file an amended interlocutory application by 9.30am on 26 August 2026 (transcript QUD656/2025 25 August 2026 p 13 lines 32-34, p 63 lines 26-28, p 64 lines 9-16).

14    On 26 August 2026, Qantas filed the Amended Interlocutory Application, seeking the same orders as the Interlocutory Application but amending Annexure A. Annexure A of the Amended Interlocutory Application includes the following documents:

1.    All documents evidencing or recording any of the following experienced by the Applicant, which continued for longer than seven days, at any point in time between 1 January 2018 and 20 August 2024:

(a)    any of the following (no matter how minor):

(i)    any illness or injury;

(ii)    any bodily infirmity, defect or incapacity;

(iii)    any mental infirmity, defect or incapacity;

(iv)    any sequela of an illness, injury, infirmity, defect or incapacity mentioned in subparagraph (i), (ii) or (iii); or

(b)    any abnormal psychological state; or

(c)    drug addiction and drug dependence.

2.    All documents evidencing or recording any diagnosis of a medical condition, where the Applicant received that diagnosis from a medical professional (including, for the avoidance of doubt, any psychologist) between 1 January 2018 and 20 August 2024.

15    At the hearing on 25 August 2026, the parties confirmed that Mr Sharpin consented to discovery of the documents outlined in Category 2 of Annexure A to the Amended Interlocutory Application (transcript QUD656/2025 25 August 2026 p 2 lines 26-49, p 3 lines 1-12, p 61 lines 30-48, p 62 lines 1-49, p 63 lines 1-22).

16    Accordingly, by way of Orders 4 and 5 of the Orders made at the hearing, I ordered that:

4.    By 4.00pm on 18 September 2026, the Applicant give discovery of all documents evidencing or recording any diagnosis of a medical condition, where the Applicant received that diagnosis from a medical professional (including, for the avoidance of doubt, any psychologist) between 1 January 2018 and 20 August 2024, in accordance with rr 20.16 and 20.17 of the Federal Court Rules 2011 (Cth) (the FCR).

5.    By 4.00pm on 25 September 2026, the Applicant is to produce for inspection by the Respondent the documents discovered in accordance with order 4 by electronic means, other than any document over which legal professional privilege is claimed.

17    The present dispute before the Court with respect to the Amended Interlocutory Application is limited to Category 1 of Annexure A to that application.

SUBMISSIONS OF THE PARTIES

Qantas’ Submissions

18    At the hearing on 25 August 2026, Counsel for Qantas relied on Qantas’ submissions lodged for filing on 11 August 2026 (Qantas’ Submissions) and the Dommerson Affidavit, and made further oral submissions.

19    In summary, Qantas submitted that:

    The documents sought in Category 1 were directly relevant to a central issue raised by the pleadings, the Compliance Issue, namely whether Mr Sharpin complied with his obligations under the Civil Aviation Safety Regulations 1998 (Cth) (CASR) to disclose “medically significant conditions” to the Civil Aviation Safety Authority (CASA) or a designated aviation medical examiner (DAME) prior to making his claim under the Qantas Loss of Licence Insurance Plan (Plan) (Qantas’ Submissions at [5]-[7], [10]-[13]; transcript QUD656/2025 25 August 2026 p 5 lines 30-49, p 6 lines 4-9, p 31 lines 29-43).

    As outlined in the Further Amended Defence at [68]-[74], from approximately November 2018 it appears that Mr Sharpin experienced one or more “medically significant conditions”, knew of those conditions, was reckless as to whether they had been disclosed to CASA, and failed to comply with his disclosure obligations under reg 67.265 of the CASR (Qantas’ Submissions at [5]-[6]; transcript QUD656/2025 25 August 2026 p 31 lines 27-43, p 32 lines 1-14).

    The Compliance Issue was important and potentially determinative because Qantas contended that eligibility for a capital benefit under the Plan was conditioned upon compliance with those disclosure obligations. If Qantas succeeded on that issue, the proceeding must be dismissed (Qantas’ Submissions at [6], [13]; transcript QUD656/2025 25 August 2026 p 31 lines 29-35, p 32 lines 11-14).

    There was a clear joinder of issue concerning whether Mr Sharpin had “medically significant conditions” before July 2023 and whether he knew of those conditions, because Mr Sharpin pleaded that he either did not have, or did not know that he had, any relevant condition until diagnosed by Dr Campbell Crilly in July 2023 (Qantas’ Submissions at [7], [11]; Dommerson Affidavit at [25]; transcript QUD656/2025 25 August 2026 p 15 lines 33-38, p 16 lines 8-12, p 23 lines 41-49, p 24 lines 1-4, p 26 lines 46-49, p 27 lines 1-3).

    Contrary to Mr Sharpin’s characterisation of the pleading in para [68] of the Further Amended Defence as a “bare allegation”, Qantas had an evidentiary foundation for its contention that Mr Sharpin experienced “medically significant conditions” before July 2023. Qantas relied in particular on:

•    a letter from Workplace Law Group dated 22 October 2024 referring to anxiety, sleeplessness, exhaustion and medication from November 2018 onwards;

•    a report from Dr Crilly dated 3 July 2023 recording the use of Temazepam and Alprazolam;

•    a medical status form completed and signed by Mr Sharpin on 19 August 2024 recording symptoms from 2019; and

•    a MetLife claim form completed and signed by Mr Sharpin on 26 February 2026 recording symptoms commencing in 2014 and consultation with a medical practitioner in May 2023,

(Dommerson Affidavit at [26]; transcript QUD656/2025 25 August 2026 p 12 lines 45-48, p 13 lines 1-12, p 15 lines 26-38, p 16 lines 12-49, pp 17-22, p 23 lines 1-12).

    Discovery of only the documents in Category 2, which was consented to by Mr Sharpin, was insufficient because Qantas disputed Mr Sharpin’s contention that relevant awareness could arise only upon diagnosis. Qantas submitted that documents other than diagnosis records, including insurance claims, personal communications, diary entries and communications with pharmacists, could demonstrate that Mr Sharpin was aware of a relevant “medically significant condition” before July 2023 (transcript QUD656/2025 25 August 2026 p 26 lines 45-49, p 27 lines 1-32).

    The distinction drawn by Mr Sharpin between diagnosed conditions and symptoms should be rejected. The definition of a “medically significant condition” in reg 67.010 of the CASR was deliberately broad and included bodily or mental infirmities, defects or incapacities, whether or not formally diagnosed. Pilots were required to disclose such conditions once known to them and where the statutory criteria were met (transcript QUD656/2025 25 August 2026 p 27 lines 36-49, p 28 lines 1-48, p 30 lines 19-48, p 31 lines 1-17, p 54 lines 45-49, p 55 lines 1-44).

    Alternatively, even if the Court were ultimately to conclude that symptoms and diagnosed conditions were distinct concepts, documents evidencing symptoms remained relevant because symptoms may constitute evidence from which the existence of an underlying condition could be inferred (transcript QUD656/2025 25 August 2026 p 32 lines 27-41, p 56 lines 7-15).

    The categories of discovery already agreed (by way of the consent Orders I made on 10 August 2026) concerning communications with medical practitioners were not an adequate substitute for the documents sought in Category 1 of Annexure A of the Amended Interlocutory Application. Because Mr Sharpin pleaded that he did not receive any relevant diagnosis before 3 July 2023, discovery confined to medical records and communications with doctors may not reveal the documents necessary to test that allegation. Qantas was therefore entitled to seek discovery of other documents which may bear upon Mr Sharpin’s awareness of medically significant conditions prior to July 2023 (transcript QUD656/2025 25 August 2026 p 56 lines 41-49, p 57 lines 1-2).

    The categories of documents sought were proportionate as:

•    Mr Sharpin made a forensic decision to sue Qantas for civil penalties which was a serious matter for Qantas;

•    the documents sought concerned an issue central to the proceeding, namely the Compliance Issue;

•    the Amended Interlocutory Application was supported by existing evidence suggesting that Mr Sharpin experienced “medically significant conditions” before July 2023;

•    Mr Sharpin was already required to search for medical and related documents extending back to 2018 on the basis of the consent Orders I made on 10 August 2026; and

•    no evidence has been adduced demonstrating that the searches required by Category 1 would be unduly burdensome or oppressive,

(Qantas’ Submissions at [10], [14]; transcript QUD656/2025 25 August 2026 p 54 lines 19-48).

    The Amended Interlocutory Application was not a fishing expedition. Rather, Qantas sought discovery to test Mr Sharpin’s pleaded denial of knowledge of relevant conditions before July 2023, to investigate apparent inconsistencies between the pleadings and the documents already available to Qantas, and to enable Qantas properly to advance and prove its pleaded defence (transcript QUD656/2025 25 August 2026 p 23 lines 41-49, p 24 lines 1-34, p 56 lines 40-49, p 57 lines 1-16).

    The Amended Interlocutory Application sought a narrower form of discovery than would be sought pursuant to a standard discovery order (transcript QUD656/2025 25 August 2026 p 5 lines 10-16).

    Costs should be reserved. The proceeding was subject to the no-costs regime in the FW Act and interlocutory applications of this kind did not ordinarily attract costs orders. Any question as to whether either party acted unreasonably should only be considered after the Court had determined the application and after the parties had been given an opportunity to be heard on costs (transcript QUD656/2025 25 August 2026 p 57 lines 18-34, p 59 lines 22-42).

Mr Sharpin’s Submissions

20    At the hearing on 25 August 2026, Counsel for Mr Sharpin:

    relied on the submissions lodged for filing on 21 August 2026 (Mr Sharpin’s Submissions) and the affidavit of Mr Lachlan McGregor affirmed on 21 August 2026 (McGregor Affidavit) (transcript QUD656/2025 25 August 2026 p 4 lines 26-28, p 33 lines 5-7); and

    made various oral submissions.

21    In summary, Mr Sharpin submitted that:

    The Court should refuse the orders sought in the Amended Interlocutory Application with reference to Category 1 of Annexure A because they extended well beyond the issues raised on the pleadings, were oppressive, and amounted to an impermissible “fishing exercise” into Mr Sharpin’s entire medical history over a period of more than six years (Mr Sharpin’s Submissions at [1]-[3], [12], [16], [24]-[25]; transcript QUD656/2025 25 August 2026 p 34 lines 34-37).

    The dispute between the parties concerned whether, before July 2023, Mr Sharpin had one or more of the medical conditions ultimately relied on by Qantas and whether he was required to disclose those conditions under the CASR. The discovery sought by Qantas was not confined to those conditions. Rather, it sought documents relating to every illness, injury, infirmity, defect, incapacity, psychological state, addiction or dependence experienced by Mr Sharpin over a six-and-a-half-year period, regardless of whether the matter bore any connection to the pleaded controversy (Mr Sharpin’s Submissions at [10]-[12]).

    Qantas has failed to demonstrate that discovery extending beyond the pleaded medical conditions identified in [34] and [36] of the Further Amended Statement of Claim and in particulars 1 and 2 of [68] of the Further Amended Defence was directly relevant to an issue raised by the pleadings. Mr Sharpin had been consistently willing to provide discovery directed to the medical conditions actually relied on by the parties and had proposed categories confined to those conditions (Mr Sharpin’s Submissions at [3]-[4], [10]; McGregor Affidavit at [43]-[46]; transcript QUD656/2025 25 August 2026 p 34 lines 25-34).

    The principal disagreement between the parties concerned Qantas’ attempt to obtain discovery of documents concerning symptoms experienced by Mr Sharpin, rather than documents evidencing diagnosed medical conditions. The concept of a “medically significant condition” in reg 67.010 of the CASR was distinct from the concept of a symptom and the definition did not expressly refer to symptoms (Mr Sharpin’s Submissions at [13]-[17]; transcript QUD656/2025 25 August 2026 p 34 lines 39-46, p 35 lines 1-21).

    Prior to receiving a diagnosis from Dr Crilly in July 2023, Mr Sharpin could not have known that he had any relevant medical condition and could only have experienced symptoms. Accordingly, discovery directed to symptoms was not an appropriate means of testing the pleaded issues and would require a lay person to retrospectively identify and categorise symptoms by reference to a technical regulatory definition (transcript QUD656/2025 25 August 2026 p 10 lines 32-49, p 11 lines 1-15, p 26 lines 29-32).

    The Court should reject Qantas’ attempt to equate symptoms with medically significant conditions. Authorities concerning the interpretation of the CASR, including Bolton and Civil Aviation Safety Authority [2013] AATA 941 at [27]-[30] and Nam and Civil Aviation Safety Authority [2023] AATA 3574 at [23]-[34], [56]-[69] and [82]-[84], demonstrated that a distinction was to be drawn between a medical condition and matters such as symptoms, treatment or medication (Mr Sharpin’s Submissions at [18]-[20]; transcript QUD656/2025 25 August 2026 p 40 lines 46-49, p 41 lines 1-48, p 42 lines 1-19, p 53 lines 23-27).

    Qantas’ reliance on [68] of the Further Amended Defence did not justify the breadth of discovery sought. Qantas was effectively seeking discovery to investigate whether some presently unidentified medical condition might exist, rather than obtaining documents directed to a specific pleaded issue. That aspect of Qantas’ case rested upon a “bare allegation” which did not justify discovery being ordered (transcript QUD656/2025 25 August 2026 p 6 lines 46-49, p 7 lines 1-38).

    The breadth of Category 1 of Annexure A of the Amended Interlocutory Application was not narrower than standard discovery, and was disproportionate. Compliance would potentially require searches through six-and-a-half years of personal records, including text messages, diary entries and other private communications, for references to matters such as sleeping difficulties, headaches, aches and pains, or other symptoms of everyday life. Such an exercise was invasive, oppressive and not justified by the forensic utility of the documents sought (Mr Sharpin’s Submissions at [6], [16]; transcript QUD656/2025 25 August 2026 p 33 lines 39-42, p 34 lines 34-37, p 46 lines 33-42, p 47 lines 3-19).

    The discovery already ordered by consent substantially addressed any legitimate forensic interest Qantas may have in Mr Sharpin’s medical history. By virtue of the orders made on 10 August 2026, Mr Sharpin was already required to give discovery of documents concerning appointments and/or communications with medical practitioners over the relevant period. Those categories would capture documents concerning diagnoses and treatment of any relevant medical condition (transcript QUD656/2025 25 August 2026 p 34 lines 9-34, p 39 lines 27-49).

    Qantas already possessed the principal documents upon which it relied to support its allegation that Mr Sharpin experienced relevant conditions prior to July 2023, including the letter from Workplace Law Group dated 22 October 2024, the report from Dr Crilly dated 3 July 2023, the medical status form completed and signed by Mr Sharpin on 19 August 2024 and the MetLife claim form completed and signed by Mr Sharpin on 26 February 2026. The Amended Interlocutory Application therefore sought material extending beyond the documents presently relied upon by Qantas and beyond the pleaded issues in dispute (transcript QUD656/2025 25 August 2026 p 34 lines 1-11).

    Mr Sharpin has consented to discovery of Category 2 in Annexure A of the Amended Interlocutory Application and has consistently accepted that documents evidencing diagnoses of relevant medical conditions by medical professionals were discoverable (McGregor Affidavit at [43]-[44]; transcript QUD656/2025 25 August 2026 p 2 lines 26-49, p 3 lines 1-12, p 61 lines 30-48, p 62 lines 1-49, p 63 lines 1-22).

    In relation to costs, Mr Sharpin communicated an open offer to Qantas on 21 August 2026 and offered a substantial compromise by consenting to discovery directed to the medical conditions actually in issue. Should Qantas not obtain a materially better outcome, Qantas’ persistence in seeking materially broader relief may constitute Qantas having acted unreasonably for the purposes of s 570(2)(b) of the FW Act (McGregor Affidavit at [42]-[45], Annexure LM-13 and Annexure LM-14).

CONSIDERATION

Relevant Legislative Scheme

22    Qantas has sought relief pursuant to rr 20.12 and 20.15 of the FCR, which state as follows:

20.12 No discovery without court order

(1)    A party must not give discovery unless the Court has made an order for discovery.

(2)    If a party gives discovery without being ordered by the Court, the party is not entitled to any costs or disbursements for the discovery.

Note:     Party is defined in the Dictionary.

…

20.15 Non‑standard and more extensive discovery

(1)     A party seeking an order for discovery (other than standard discovery) must identify the following:

(a)     any criteria mentioned in rules 20.14(1) and (2) that should not apply;

(b)     any other criteria that should apply;

(c)     whether the party seeks the use of categories of documents in the list of documents;

(d)     whether discovery should be given in an electronic format;

(e)     whether discovery should be given in accordance with a discovery plan.

(2)     An application by a party under subrule (1) must be accompanied by the following:

(a)     if categories of documents are sought—a list of the proposed categories; and

(b)     if discovery is sought by an electronic format—the proposed format; and

(c)     if a discovery plan is sought to be used—a draft of the discovery plan.

(3)     An application by a party seeking more extensive discovery than is required under rule 20.14 must be accompanied by an affidavit stating why the order should be made.

(4)     For this Division:

category of documents includes documents, or a bundle of documents, of the same or a similar type of character.

Note:     A discovery plan is a plan that has regard to the issues in dispute and the likely number, nature and significance of the documents discoverable in relation to those issues—see the Court’s Practice Note CM6, ‘Electronic Technology in Litigation’.

23    Rule 2.15(1)(a) of the FCR refers to the criteria in r 20.14(1)-(2), which are as follows:

(1)     If the Court orders a party to give standard discovery, the party must give discovery of documents:

(a)     that are directly relevant to the issues raised by the pleadings or in the affidavits; and

(b)     of which, after a reasonable search, the party is aware; and

(c)     that are, or have been, in the party’s control.

(2)     For paragraph (1)(a), the documents must meet at least one of the following criteria:

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

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

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

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

24    Principles relevant to an application for discovery are well established, and were set out by Mansfield J in Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd (No 4) [2013] FCA 1044 at [33] as follows:

The court should not make an order for discovery unless the making of the order sought will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible: r 20.11 of the Rules, and see Alanco Australia Pty Ltd v Higgins (No 2) [2011] FCA 1063 at [7] (Alanco); Coca-Cola Company v Pepsico Inc [2011] FCA 1069 at [33]; and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 2) (2011) 212 IR 313 at [21]. This principle reflects the overarching purpose of civil practice and procedure of the court stated in s 37M of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). The court controls the discovery process in part to ensure that the parties “are not crippled with the cost and delay of that process”: Alanco at [7]. It will not order discovery as a matter of course, even where the parties consent, unless discovery is necessary for the determination of issues in the proceeding. An applicant for an order for discovery bears the onus of satisfying the court that the documents sought are necessary: Trade Practices Commission v CC (NSW) Pty Ltd (No 4) (1995) 58 FCR 426 per Lindgren J at 436.

(emphasis added)

25    In Rivas v The Republic of Chile [2020] FCA 737, Abraham J observed:

40.    The Court will not order discovery as a matter of course unless discovery is necessary for the determination of issues in the proceeding, and an applicant for an order for discovery bears the onus of satisfying the Court that the documents sought are necessary: Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd (No 4) [2013] FCA 1044 at [33] per Mansfield J citing Trade Practices Commission v CC (New South Wales) Pty Ltd (No 4) [1995] FCA 1418; (1995) 58 FCR 426 at 436 per Lindgren J.

41.    The principles that are relevant to an order for discovery in an application for judicial review are as summarised in Carmody v MacKellar [1996] FCA 791; (1996) 68 FCR 265 (Carmody) at 280 per Merkel J, as follows:

The following principles may now be taken to be well established by the decisions of the Court in Melbourne Home of Ford v Trade Practices Commission [1979] FCA 15; (1979) 36 FLR 450, W.A. Pines Pty Ltd v Bannerman [1980] FCA 79; (1980) 41 FLR 175 and Australian Securities Commission v Somerville (1994) 51 FCR 38:

1.    the Court has a discretionary power to order discovery in proceedings for the review of an administrative decision;

2.    the proper exercise of the power depends upon the nature of the case and the stage of the proceedings at which discovery is sought;

3.    if a proceeding or claims in it are essentially speculative in nature the Court will not order discovery in order to assist the applicant in a fishing exercise;

4.    the evidence or material which will be required to establish that the proceeding or particular claims in it are not essentially speculative will vary with the nature and circumstances of the particular case;

5.    if there is not the slightest evidence or there is no other material to support the bare allegations made in the proceeding, then as a general rule, an order for discovery ought not to be made.

42.    These principles were accepted by the Full Court (Dowsett, Jacobson and Greenwood JJ) in Jilani v Wilhelm [2005] FCAFC 269; (2005) 148 FCR 255 at [108].

(emphasis added)

26    I also note, as raised by both Qantas and Mr Sharpin, the more recent observations of Feutrill J in Skyn Pty Ltd v LifeStyles Healthcare Pte Ltd [2026] FCA 1060:

14.    Part 20 of the Rules deals with discovery and inspection of documents. In reflection of the overarching purpose of the civil practice and procedure provisions, a party must not apply for an order for discovery unless the making of the order sought will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible: r 20.11 of the Rules. A party must not give discovery unless the Court has made an order for discovery: r 20.12(1). Moreover, the Court has a broad discretion to make or refuse to make an order for discovery and no party has any right to discovery from another party to the proceeding: see, e.g., Cameron v Rural Press Ltd (unreported, Federal Court of Australia, Burchett, Gummow and Hill JJ, 20 July 1990) at p 2, cited in Murex Diagnostics Australia Pty Ltd v Chiron Corp (1995) 55 FCR 194 at 199 (Burchett J).

15.    Discovery can be very burdensome and costly without a correspondingly proportionate forensic necessity or benefit. Accordingly, the power of the Court to order discovery must be exercised in the way that best promotes the overarching purpose of the civil practice and procedure provisions described in s 37M of the Federal Court Act. The Court will balance the costs, time and possible oppression to the producing party against the importance and likely benefits to the applying party. If discovery orders are made, they can be tailored to suit the particular circumstances of the case. In addition, the party seeking discovery bears the onus of satisfying the Court that the documents sought are necessary: Babscay Pty Ltd v Pitcher Partners (a firm) [2019] FCA 480 at [94]-[95] (Middleton J), citing Power Infrastructure Pty Ltd v Downer EDI Engineering Power Pty Ltd (No 4) [2012] FCA 143 at [14] (Katzmann J); United Salvage Pty Ltd v Louis Dreyfus Armateurs SNC [2006] FCA 116 at [3] (Tamberlin J); Taylor v Saloniklis [2013] FCA 679 at [7] (Besanko J); Trade Practices Commission v CC (New South Wales) Pty Ltd (No 4) (1995) 58 FCR 426 at 436 (Lindgren J).

16.    Similar observations are made and guidance given to the approach to discovery in Central Practice Note: National Court Framework and Case Management (CPN-1) at paragraphs 10.1 to 10.13.

…

19.    Applications for non-standard discovery by categories have become relatively common, but, as Colvin J observed in Fuji Xerox Australia Pty Ltd v Whittaker (No 2) [2021] FCA 696 at [10]-[16], that process ‘tends to lead to disputation about the definition of categories rather than focus upon providing discovery’ and ‘[d]isputation about discovery is not only expensive for the parties, it is time consuming for the Court and consumes public resources better applied to the important public task of determining substantive disputes’.

…

20.    While it is to be expected that usually discovery by category will be narrower than standard discovery, as an order for discovery is discretionary, the Court has power, in an appropriate case, to order non-standard discovery that is wider than standard discovery …

21.    Additionally, whatever other criteria may or may not apply to non-standard discovery, it would not be appropriate to order discovery of documents or categories of document that are not demonstrably relevant in any sense to the issues raised in the proceeding. Except for the specific regime for discovery against a prospective respondent in r 7.23 of the Rules, an order for discovery must not be used for the purpose of ascertaining whether a case exists, as distinct from the purpose of compelling production of documents where there is already some evidence that a case exists: Trade Practices Commission v CC (NSW) Pty Ltd (No 4) at 438. Discovery should not be ordered to permit a party that makes a bare allegation to interrogate another party and ransack its documents ‘in the hope of making a case’. There must be sufficient evidence ‘to ground a suspicion that the party applying for discovery has a good case proof of which is likely to be aided by discovery’. In the absence of such evidence, the proceeding (or allegation) is essentially speculative in nature. That is mere fishing: WA Pines Pty Ltd v Bannerman [1980] FCA 79; 41 FLR 175 at 181-182 (Brennan J, Bowen CJ agreeing) citing Melbourne Home of Ford Pty Ltd v Trade Practices Commission (1979) 36 FLR 450 at 460 (Smithers J).

22.    Nonetheless, ‘[o]n the facts of particular cases, the application of the distinction between “fishing” and “non-fishing” may well be difficult’: Trade Practices Commission v CC (NSW) (No 4) at 438. Further, where there is sufficient evidence to ground a suspicion of a good case (or allegation) it may be appropriate to order discovery before requiring the party applying for discovery to give particulars of its case (or allegation): WA Pines v Bannerman at 181. Moreover, it is generally accepted that, where particulars of material facts are solely within the knowledge of the party from which discovery is requested, the party applying for discovery is permitted to obtain discovery from the party with knowledge before providing particulars of an otherwise insufficiently particularised allegation made in a pleading: e.g., Jingellic Minerals NL v Abigroup Ltd (1992) 7 WAR 566 at 570 (Franklin J, Walsh J agreeing). However, the scope and extent of any discovery ordered in that circumstance remains within the discretion of the Court.

(emphasis added)

27    On the basis of these principles, it is not in dispute that Qantas bears the onus of proving that discovery of the documents referred to in Category 1 of Annexure A of the Amended Interlocutory Application:

    is required to facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible;

    is necessary for the determination of issues in the proceeding as the documents sought are demonstrably relevant to the issues in the proceeding;

    should be ordered when the costs, time and possible oppression to Mr Sharpin are balanced against the importance and likely benefits to Qantas;

    is not speculative and does not amount to a “fishing exercise”; and

    is based on sufficient evidence, more than “bare allegations” and “a good case proof of which is likely to be aided by discovery”.

What must be determined

28    At the hearing on 25 August 2026, Counsel for Mr Sharpin indicated that, in determining whether to make the interlocutory orders sought by Qantas, I would be required to determine whether the definition of “medically significant condition” for the purposes of reg 67.265 of the CASR includes “symptoms” (transcript QUD656/2025 25 August 2026 p 44 lines 9-16, p 53 lines 40-41).

29    As I observed at the hearing, this judgment relates to the Amended Interlocutory Application and should not form a concluded view on the merits of the Originating Application, Further Amended Statement of Claim or Further Amended Defence (transcript QUD656/2025 25 August 2026 p 43 lines 14-38, p 44 lines 48-49, p 45 lines 1-4, p 55 lines 46-49, p 56 lines 3-5 and 22-34).

30    The task presently before the Court is not to determine finally the parties’ substantive dispute, but only to assess the Amended Interlocutory Application, as it relates to discovery, by reference to the pleaded issues and the principles governing discovery, without prejudging questions that may ultimately arise for determination at trial. As was observed by the High Court in Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [7] (albeit in the context of an interlocutory application for an extension of time):

… But the merits of the appeal are not a relevant consideration where the application concerns an extension of time for taking a step in prosecuting the appeal unless, unusually, the Court can be satisfied that the appeal is so devoid of merit that it would be futile to extend time. The merits are examined at the end of the process, not during its course …

(emphasis added)

31    Indeed, this reflects the approach of the Court to interlocutory applications seeking discovery orders: see for example, Bertram v Naudi [2022] FCA 385 at [40]-[41]; Howden Australia Pty Ltd v Minetek Pty Ltd [2020] FCA 1419; (2022) 180 ALD 355 at [31]; IPC Global Pty Ltd v Pavetest Pty Ltd [2016] FCA 500 at [25]; Rinehart v Rinehart (No 2) [2015] FCA 339 at [58]-[59]; Solahart Industries Pty Ltd v Solar Shop Pty Ltd (No 3) [2011] FCA 884 at [6].

32    It is therefore neither necessary nor appropriate, at this interlocutory stage, to reach any final view as to whether the concept of a “medically significant condition” under reg 67.265 of the CASR encompasses “symptoms”, as that issue falls to be determined, if necessary, on the evidence and arguments advanced at the final hearing.

33    The Further Amended Defence (at [68]-[69]) pleaded that, from around November 2018, Mr Sharpin had one or more “medically significant conditions” within the meaning of reg 67.010 of the CASR and knew that he had those conditions. The Amended Reply placed those allegations squarely in issue (at [15]-[16]). Importantly, Mr Sharpin has not sought to strike out [68]-[80] of the Further Amended Defence, nor has he contended that they disclosed no reasonable defence. In those circumstances, the Court must proceed on the basis that the allegations relating to the Compliance Issue form part of the matters genuinely in dispute between the parties.

34    Furthermore, whether the expression “medically significant condition” for the purposes of reg 67.265 of the CASR included symptoms has not previously been considered by this Court. While Mr Sharpin submitted that the expression did not encompass symptoms, the authorities relied upon by the parties did not clearly resolve that question.

35    Mr Sharpin relied on Bolton (at [27]-[30]) as authority that a “condition” means a “state of health” and that evidence merely of a risk or possibility of a condition or effect does not establish the existence of a condition. However, the relevance of Bolton to the present application is not immediately apparent. Qantas does not allege that a mere risk or possibility of a condition is itself sufficient, or that Mr Sharpin was at risk of developing a medically significant condition. Rather, Qantas alleged in the Further Amended Defence that Mr Sharpin in fact had one or more medically significant conditions from around November 2018 onwards and knew that he had those conditions.

36    Mr Sharpin also relies on Nam (at [23]-[34], [56]-[69] and [82]-[84]) as authority for the proposition that there is a distinction between a condition, taking medication for that condition, actual effects, and potential side effects. However, Nam concerned a materially different factual context. In particular, the significance of the applicant’s use of Ritalin in that case arose in the context of determining whether the medication, or its side effects, demonstrated the existence of a relevant condition. By contrast, Qantas relied upon evidence that Mr Sharpin used Temazepam and Alprazolam not as proof that the medications themselves constituted a “medically significant condition”, but as part of the factual matrix from which it contended inferences may be drawn concerning the existence of, and Mr Sharpin’s awareness of, one or more medically significant conditions.

37    Without reaching a concluded view on the issue, there is some authority to suggest that the expression “medically significant condition” should be given a broad interpretation. As was raised by Counsel for Qantas at the hearing, in Nam v Civil Aviation Safety Authority [2026] FCA 72 at [18], Hespe J described the term “medically significant condition” as being “broadly defined”.

38    Likewise, in Matthews v Civil Aviation Safety Authority [2020] AATA 1163 at [9], the Administrative Appeals Tribunal (as it then was) held that:

The term “medically significant condition” is subject to a comparatively broad definition which applies to any of several conditions identified “no matter how minor” (emphasis added). These conditions include any illness or injury, bodily or mental infirmity defect or incapacity or sequela, abnormal psychological state or drug addiction and drug dependence. It should be observed that the inclusion of the words “no matter how minor” in the drafting of this regulation elevates the status of such conditions in some instances beyond that which would be the case if the plain and ordinary meaning of such words were applied.

(emphasis added)

39    In Reubel v Civil Aviation Safety Authority [2018] AATA 1639 at [75], the AAT similarly concluded:

It should be noted that the definition specifically qualifies subparagraphs (i) - (Iv) by the words “no matter how small”. It follows then, that the definition has been deliberately drafted to give it the broadest possible effect.

(emphasis added)

40    Accordingly, I am not persuaded that Qantas’ contention is so lacking in merit that it can be disregarded for the purposes of the present application. Whether Qantas ultimately establishes that a “medically significant condition” includes symptoms experienced before diagnosis, and whether the allegations in the Further Amended Defence at [65]-[80] are made out, are matters for determination at trial. Unlike cases such as Bolton, where the AAT was required to determine whether the applicant had in fact suffered from a safety-relevant condition, the Court is not presently required to determine whether Mr Sharpin suffered from one or more “medically significant conditions” within the meaning of the CASR, nor whether particular symptoms ultimately established the existence of such a condition. The present question is confined to whether the documents sought by Qantas are relevant to that pleaded controversy and should be the subject of discovery.

Findings

41    In my view, Qantas has discharged the onus identified in the authorities referred to above, and has demonstrated that discovery of the documents falling within Category 1 of Annexure A to the Amended Interlocutory Application should be ordered. My reasons for this are as follows.

42    First, the documents sought are directed to a live issue arising on the pleadings. As I have already observed, the Compliance Issue is pleaded in [65]-[80] of the Further Amended Defence and is expressly joined by the Amended Reply (at [15]-[16]). Qantas alleges that, from around November 2018, Mr Sharpin had one or more “medically significant conditions”, knew of those conditions, and failed to comply with his disclosure obligations under reg 67.265 of the CASR. Mr Sharpin denies those allegations. Whether those allegations ultimately succeed is a matter for trial. However, they are presently part of the controversy between the parties and have not been struck out or challenged as disclosing no reasonable defence. In those circumstances, the Court must assess the discovery application by reference to the issues as they are presently pleaded.

43    Second, I am not persuaded that Qantas’ case concerning the Compliance Issue is speculative, amounts to a fishing expedition, or rests upon no more than a “bare allegation”. The evidence presently before the Court discloses a sufficient factual foundation for the allegations pleaded by Qantas. As Counsel for Qantas identified at the hearing, that foundation includes:

    the letter from Workplace Law Group dated 22 October 2024 referring to anxiety, sleeplessness, exhaustion and medication from approximately November 2018 onwards;

    the report of Dr Crilly dated 3 July 2023 recording prior use of Temazepam and Alprazolam;

    the medical status form completed and signed by Mr Sharpin on 19 August 2024 referring to symptoms from 2019; and

    the MetLife claim form completed and signed by Mr Sharpin on 26 February 2026 referring to symptoms commencing in 2014 and consultation with a medical practitioner in May 2023,

all of which were relied upon by Qantas in support of the allegations advanced in the Further Amended Defence (at [65]-[80]). Whether those documents ultimately establish the matters contended for by Qantas is not presently the point. The significance of those documents is that they provide a sufficient evidentiary basis to ground a suspicion that Qantas’ pleaded case is capable of being proved and that proof may be aided by discovery. That is sufficient to distinguish the present application from the type of speculative “ransacking” of documents cautioned against in authorities such as WA Pines Pty Ltd v Bannerman [1980] FCA 79; (1980) 41 FLR 175 and Skyn.

44    Third, the documents sought by Category 1 are relevant to the pleaded controversy. Qantas has sought documents evidencing or recording illnesses, injuries, infirmities, defects, incapacities, abnormal psychological states and related matters experienced by Mr Sharpin during the relevant period, in excess of seven days. Such documents may bear directly upon whether Mr Sharpin experienced a “medically significant condition” prior to July 2023 and whether he was aware of that condition. The documents may also bear upon the allegations in [69]-[73] of the Further Amended Defence concerning knowledge, recklessness and non-compliance with the disclosure obligations imposed by reg 67.265 of the CASR.

45    Fourth, even if Mr Sharpin’s distinction between symptoms and diagnosed conditions was ultimately accepted at trial, it would not necessarily follow that the documents sought by Category 1 lacked relevance. I accept Qantas’ submission that documents evidencing symptoms may themselves constitute evidence from which the existence, nature or duration of an underlying condition could be inferred. For that reason, I am unable to conclude that documents recording such matters are incapable of bearing upon the issues raised by the pleadings.

46    Fifth, I am not persuaded that the discovery already ordered by consent provides an adequate substitute for Category 1. The consent Orders I made on 10 August 2026 require discovery of medical certificates, appointments with medical practitioners and communications with medical practitioners. Those categories will undoubtedly capture a substantial body of relevant material. However, Qantas’ case is directed not merely to what medical practitioners may have recorded, but to whether Mr Sharpin experienced and knew of medically significant conditions prior to July 2023. Documents capable of bearing upon that issue may extend beyond formal medical records. As was submitted by Qantas, they may include insurance documents, personal records, communications concerning ongoing symptoms or other documents which may illuminate Mr Sharpin’s awareness of relevant matters during the period in question. In those circumstances, the existence of the earlier discovery Orders made on 10 August 2026 does not render Category 1 unnecessary.

47    Sixth, I am not persuaded by Mr Sharpin’s submission that Category 1 should be refused because Qantas already possesses the principal documents upon which it presently relies in support of the allegations pleaded in the Further Amended Defence at [65]-[80]. The fact that Qantas has identified several documents which it contends support its case does not mean that further potentially relevant documents do not exist. Discovery is directed to ensuring that parties have access to the documentary record relevant to issues raised by the pleadings, not merely to documents already known to support a particular party’s case. The documents identified by Qantas provide a sufficient factual foundation for the allegations it advances. The possibility that additional documents may exist which either support, qualify or undermine the inferences sought to be drawn from those documents provides a legitimate forensic justification for discovery.

48    Seventh, I am also not persuaded that Mr Sharpin’s agreement at the hearing to discover documents evidencing diagnoses of relevant medical conditions (as in Category 2) renders Category 1 unnecessary. Qantas’ pleaded case is not confined to the fact of diagnosis. As appears from [68]-[73] of the Further Amended Defence, Qantas alleges that Mr Sharpin experienced and knew of one or more medically significant conditions from around November 2018 onwards. Documents recording symptoms, complaints, experiences, communications concerning symptoms or other manifestations of a condition may bear upon those allegations, including the issues of knowledge and timing, notwithstanding the absence of any formal diagnosis at the time. In those circumstances, discovery confined to diagnosed conditions would not necessarily capture the full range of documents potentially relevant to Qantas’ pleaded case.

49    Finally, and importantly, I am not satisfied that compliance with Category 1 of Annexure A of the Amended Interlocutory Application would involve oppression out of proportion to its likely forensic utility. As was raised by Counsel for Qantas at the hearing on 25 August 2026 (transcript QUD656/2025 25 August 2026 p 54 lines 19-27), the affidavit material adduced by Mr Sharpin does not establish that discovery of the documents would be particularly oppressive, onerous or burdensome. I accept that the McGregor Affidavit records (at [30], LM-4 p 39 and LM-11 p 68) the Applicant’s objection that compliance with the category would require Mr Sharpin retrospectively to determine which symptoms “would have met” the definition of a “medically significant condition” and that Mr Sharpin is not medically qualified to make such assessments. However, I do not consider that concern demonstrates oppression. Category 1 requires Mr Sharpin to identify documents recording symptoms and conditions personally experienced by him for a period in excess of seven days. To the extent that an evaluative judgment is required as to whether particular symptoms fall within the scope of the category, that is not an unusual feature of the discovery process and does not, in itself, render compliance oppressive.

50    The burden of demonstrating that discovery should not be ordered on grounds of oppression ordinarily requires some supportive evidentiary basis: see for example, Biman International Pty Ltd v Amalgamated Security Services Pty Ltd [2003] FCA 801 at [46]; Optus Networks Pty Ltd v Telstra Corporation Ltd [2008] FCA 1149 at [34], [36]-[38], [40], [43]-[44]. No evidence has been adduced by Mr Sharpin identifying the likely extent, cost or difficulty of the searches required, the likely number of responsive documents, or otherwise demonstrating that compliance would involve a burden disproportionate to the importance of the issues to which the documents relate (cf. Schutz DSL (Australia) Pty Ltd v VIP Plastic Packaging Pty Ltd (No 15) [2012] FCA 781 at [10]-[11], where discovery was refused in part on the basis of affidavit evidence demonstrating that discovery would be oppressive). While Counsel for Mr Sharpin properly raised concerns regarding the breadth of the category and the potential need to review personal records, those concerns remain largely matters of speculation. There is no evidence before the Court that compliance by Mr Sharpin with the discovery orders presently sought by Qantas would require the review of an unusually large volume of documents or otherwise involve a substantial practical burden. In circumstances where discovery is sought in relation to an issue of central importance to the proceeding, I am unable to conclude that the burden identified outweighs the forensic value of the documents sought.

51    For these reasons, when the competing considerations of forensic utility, burden and proportionality are balanced, I consider that the balance favours discovery. The Compliance Issue is not peripheral. On Qantas’ pleaded case, it is capable of being determinative of the proceeding. The documents sought are directed to that issue and to a defined period ending on the date of the claim. I further note that, following the amendment made at the hearing, Category 1 is narrower than originally proposed because it is confined to conditions that continued for more than seven days. I am satisfied that discovery of the documents falling within Category 1 of Annexure A to the Amended Interlocutory Application will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible, is sufficiently connected to the issues raised by the pleadings, and should be ordered.

52    Accordingly, I will order that Mr Sharpin give discovery of the documents referred to in Category 1 of Annexure A to the Amended Interlocutory Application and produce those documents for inspection by electronic means.

53    In circumstances where Qantas has succeeded on the Amended Interlocutory Application, I do not accept Mr Sharpin’s submission that his offer of 21 August 2026 presently provides a basis for any costs order in his favour. Nevertheless, having regard to s 570 of the FW Act and the interlocutory nature of the dispute, I consider it preferable to reserve costs rather than determine at this stage whether either party has engaged in unreasonable conduct within the meaning of s 570(2)(b).

Associate:

Dated:    23 September 2026