FEDERAL COURT OF AUSTRALIA Woodsford v Range International Limited [2018] FCA 1007 File number: NSD 87 of 2018 Judge: PERRAM J Date of judgment: 13 June 2018 Date of publication of reasons: 4 July 2018 Catchwords: PRACTICE AND PROCEDURE – application for separate questions – where proposed separate questions concern geographical scope of claims under Fair Work Act 2009 (Cth) PRACTICE AND PROCEDURE – request for particulars – whether proper request for particulars PRACTICE AND PROCEDURE – notice to set aside notice to produce – whether legitimate forensic purpose – whether notices drawn too broadly Legislation: Fair Work Act 2009 (Cth) ss 34, 90, 323, 340, 341, 351, 542, 550 Fair Work Regulations 2009 (Cth) reg 1.15F(4) Federal Court Rules 2011 (Cth) rr 20.35, 30.01 Cases cited: Apotex Pty Ltd v Les Laboratoires Servier [2012] FCA 359 Tepko Pty Limited v Water Board [2001] HCA 19; 206 CLR 1 Date of hearing: 13 June 2018 Registry: New South Wales Division: General Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 31 Counsel for the Applicant: Mr T Brennan Solicitor for the Applicant: Kennedys (Australasia) Pty Ltd Counsel for the First and Second Respondents: Mr M Seck Solicitor for the First and Second Respondents: Ashurst Australia ORDERS NSD 87 of 2018 BETWEEN: RACHELLE LEA WOODSFORD Applicant AND: RANGE INTERNATIONAL LIMITED (ACN 611 998 200) First Respondent WILLIAM KOECK Second Respondent JONATHAN GUYETT Third Respondent JUDGE: PERRAM J DATE OF ORDER: 13 JUNE 2018 THE COURT ORDERS THAT: 1. Prayers 1 and 2 of the First and Second Respondents' interlocutory application filed on 24 April 2018 be dismissed. 2. The Applicant provide a response to paragraph 7 of the First and Second Respondents' request for further and better particulars dated 26 March 2018. 3. The Notice to Produce dated 7 March 2018 be set aside. 4. The Notice to Produce dated 14 March 2018 be set aside. 5. Costs of the First and Second Respondents' interlocutory applications filed on 13 April 2018 and 24 April 2018 be costs in the cause. 6. The matter be listed for a further case management hearing on 20 June 2018. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT PERRAM J: 1 On 13 June 2018 I made orders disposing of two interlocutory applications brought by the First and Second Respondents. These are my reasons for making those orders. Separate Question Issues 2 Prayers 1 and 2 of the First and Second Respondents' interlocutory application filed 24 April 2018 sought the stating of a series of separate questions (and thereafter their answering) pursuant to r 30.01 of the Federal Court Rules 2011 (Cth). They sought to have determined in advance of any trial the question of whether the Applicant's claims against the First and Second Respondents are sufficiently within the geographical scope of the Fair Work Act 2009 (Cth) ('FW Act') to allow her claims made under that Act to be maintained. 3 The Applicant's proceeding in this Court relates to her previous employment by the First Respondent. She was hired as its Global Head of Sales. It seems that she was based in Singapore for this role and was hired following interviews in Indonesia, Singapore and Hong Kong. 4 The First Respondent itself is an Australian company listed on the Australian Stock Exchange. As I understand it, it makes plastic pallets used in the transport industry. It is headquartered at William St in Sydney. 5 The Applicant's employment with the First Respondent ceased on 11 November 2017. The circumstances under which this occurred are controversial. The Applicant claims her employment with the First Respondent was terminated. In her proceeding in this Court the Applicant alleges that she had made a number of complaints in relation to the behaviour of the First Respondent's chief executive officer, Mr Guyett (the Third Respondent), principally about the way the First Respondent handled those complaints. Each of these is alleged to be a 'complaint' within the meaning of s 341(1)(c)(ii) of the FW Act. Without dwelling unnecessarily on the detail the complaints included, for example, a written complaint that Mr Guyett had engaged in bullying conduct against her. 6 The gist of the Applicant's case is that her employment was terminated because she exercised a workplace right (i.e. complaining about Mr Guyett's behaviour) and this was the taking of adverse action of the kind proscribed by s 340 of the FW Act. The case is put on other bases too. One of these is that she was required to 'work closely' with Mr Guyett without any safeguards in response to her complaints. That requirement was said to have taken place against a backdrop of alleged remarks by Mr Guyett to the Applicant of a highly sexual nature about which she had complained to the First Respondent and in respect of which there had been a mediation. It was said that requiring her to work closely with him in that circumstance was a species of discrimination on the basis of sex. 7 The claims made by the Applicant against the First Respondent are made under s 340 (the adverse action claims) and s 351 (the discrimination claim). She also alleges breaches of ss 90 and 323 (which involve a failure to pay her unused annual leave when her employment ended) and s 542 (which involves a failure to reimburse her for various expenses incurred to which she was entitled under her employment contract). The Applicant's claim against the Second Respondent is made under s 550 (which involves the Second Respondent's involvement in the alleged termination of the Applicant's employment contract). 8 Before any of these statutory claims can be invoked it is necessary that the FW Act apply to the situation presented by the facts. Leaving to one side the rather convoluted statutory path that leads to this conclusion, it is not in doubt that the Applicant's claims under the FW Act will be unavailable if it appears that she was engaged outside Australia to perform duties outside Australia: see s 34(3)(a) of the FW Act and reg 1.15F(4) of the Fair Work Regulations 2009 (Cth). 9 It is therefore open to the Respondents to run as a defence that the FW Act does not apply because the Applicant was engaged by the First Respondent outside Australia to perform duties outside Australia. 10 There may be some nice questions relating to the former question concerning foreign law and the determination of where the Applicant was engaged but these can be passed over for present purposes. This is because it is obvious that the latter question of whether the Applicant was engaged to perform duties outside Australia is a fact-rich inquiry inapt for resolution by means of a separate question. So much is apparent from a cursory examination of the statement of claim. For example, at paragraph [17] this is alleged: '17. The employment relationship formed pursuant to the Executive Service Agreement was connected to the Commonwealth of Australia. Particulars i. The Executive Service Agreement provided that: a. any notices under it to Range were to be addressed to its head office in Sydney; b. the Role included responsibility for sales and marketing in Australia and for managing the Range Sales Team in Australia (clause 2.1(a)); c. Ms Woodsford was to report to the Chief Executive Officer of Range (clause 2.1(b)); d. Ms Woodsford was required to provide to Range a satisfactory police record check by the Australian Federal Police (clause 2.3(a)(iii)); e. Ms Woodsford was required to provide Range a copy of her Australian passport demonstrating that she was entitled to work in Australia (clause 2.3(a)(iv));. f. while Ms Woodsford was to be based in Singapore she acknowledged to Range that she may be required by Range to travel frequently within Australia as part of her employment (clause 2.6); g. Ms Woodsford's duties included duties as assigned to her by the CEO to be performed at such places as Range required (clause 3.1(a)); h. Ms Woodsford's duties included reporting to Range's Board of Directors as determined by the Board (clause 3.1(i)); i. the Agreement was governed by the law of the State of New South Wales and Ms Woodsford and Range each irrevocably and unconditionally submitted to the exclusive jurisdiction of the Courts of the State of New South Wales (clause 18.12); and j. Ms Woodsford was restrained from competing with Range for a period of 12 months following termination of the Employment in Australia (Schedule 4 clauses 1.1, 1.2 and 1.3(c) second occurring).' 11 And at paragraph [19] this appears: '19. During the Employment, Ms Woodsford undertook the following primary duties in the Role: a. managing the Range Sales Teams; b. managing all sales, marketing and public relations activities in all regions but focussing on the Asia Pacific region including in the Commonwealth of Australia; c. advising the Board on Range's global brand strategy and brand positioning; d. driving Range's international sales strategy including its strategy in the Commonwealth of Australia; e. being the primary contact for all new, key and potential clients including clients in the Commonwealth of Australia; f. providing strategic direction to the Range Sales Teams; g. growing Range's product in existing and future markets including in the Commonwealth of Australia; h. growing the scale, capabilities and execution of sales and marketing within Range; and i. collaborating with those executives of Range responsible for research and development, manufacturing and finance to achieve Range's sales objectives including executives based in the Commonwealth of Australia, (Primary Duties).' 12 Mr Seck of counsel, who appeared for the First and Second Respondents, submitted that these factual questions were relatively narrow in compass and would not require extensive evidence. He also submitted that the relevant facts would not be controversial. 13 I do not accept this submission. An inquiry into the scope of the Applicant's work in Australia looks to me to be a complex undertaking requiring factual determinations and almost certainly a controversial one. The submission put on behalf of the First and Second Respondents is, with respect, wholly unrealistic. This is, therefore, a good example of the kind of case where the stating of separate questions as proposed by the First and Second Respondents would be an ill-advised procedural choice. As was said by the Kirby and Callinan JJ in Tepko Pty Limited v Water Board [2001] HCA 19; 206 CLR 1 at 55 [168]-[170]: '168 …The attractions of trials of issues rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties have, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap. 169 The second and related comment is this. A party whose whole case is knocked out on a trial of a preliminary or single issue, may suspect, however unjustifiably, that an abbreviated course was adopted and a decision reached in the court's, rather than the parties', interests. 170 Thirdly, there is an additional potential for further appeals to which the course of the trial on separate issues may give rise. Indeed, that could occur here were this appeal to be allowed and a retrial had in which the remaining issues of causation and damages were decided. Single-issue trials should, in our opinion, only be embarked upon when their utility, economy, and fairness to the parties are beyond question.' 14 Those remarks are particularly apposite here. It was for those reasons that I refused to state the separate questions. The formal order made by the Court was: 1. Prayers 1 and 2 of the First and Second Respondents' interlocutory application filed on 24 April 2018 be dismissed. Particulars 15 Prayer 3 of the same interlocutory application filed 24 April 2018 sought an order that the Applicant answer a request for particulars issued by the First and Second Respondents' solicitors on 26 March 2018. By the time the matter was argued before me the scope of the debate had significantly narrowed to Questions 7, 9, 10, 12 and 22 contained in the request for particulars. 16 Question 7 is about paragraph 14 of the Statement of Claim and read: '7. Please provide the usual particulars of the offer on or around 8 April 2017' 17 Paragraph 14 of the Statement of Claim says: '14. Following successful completion of the Recruitment Process, on or around 8 April 2017 Range offered Ms Woodsford the Role.' 18 The response to this in the Applicant's solicitors' letter of 16 April 2013 was as follows: 'The initial offer was in writing in the form of a proposed contract of employment. As to the balance of the request, it is not a proper request for particulars.' 19 The expression 'usual particulars' is defined extensively in the request for particulars but essentially devolves to a series of who, what, when and where questions. I can see no basis upon which it may be concluded that Question 7 should not be answered. The Respondents are entitled to know how Ms Woodsford is going to put her case on the issue of her offer. They are entitled to know the circumstance of its making. The matter is therefore the subject of a proper request for particulars. 20 Questions 9, 10, 12 and 22 all raise the same issue and attention can therefore safely be confined to Question 9. It read: '9. Please identify the country in which Ms Woodsford was when she executed the Executive Service Agreement on or around 11 April 2017 as alleged in paragraph 15.' 21 Paragraph 15 of the Statement of Claim says: '15. On or around 11 April 2017, Ms Woodsford executed the Executive Service Agreement.' 22 The answer given by the Applicant's letter of 10 April 2018 was: 'This is not a proper request for particulars.' 23 I agree with the Applicant. Whilst I can understand why the First and Second Respondents would like to know the answer to Question 9, it is not in any sense necessary for them to do so in order to understand the case put against them. Accordingly, it is not a proper request for particulars. The same is true of Questions 10, 12 and 22. 24 For those reasons I made this order at the hearing on 13 June 2018: 2. The Applicant provide a response to paragraph 7 of the First and Second Respondents' request for further and better particulars dated 26 March 2018. Notices to Produce 25 By a Notice of objection to a Notice to Produce dated 13 April 2018 the First and Second Respondents sought to set aside two notices to produce issued by the Applicant respectively dated 7 March 2018 and 13 March 2018. The remaining relevance of the Notices to Produce was to assist in the Applicant's as-yet-to-be-determined application to confirm service on the Third Respondent, Mr Guyett. 26 The debate between the parties was limited to two issues: (1) is it a legitimate forensic purpose to issue a party with a notice to produce so as to assist with the determination of an interlocutory application or is the issue of notices to produce confined to the furtherance of proof of facts in issue at trial; and (2) assuming that it was legitimate to issue a notice to produce to assist on an interlocutory question, were the two notices in question too broadly drawn. 27 The answer to (a) is provided by the decision of Bennett J in Apotex Pty Ltd v Les Laboratoires Servier [2012] FCA 359 ('Apotex') at [23]-[24] and [30] where her Honour held that a notice to produce could legitimately be used to assist on an application to serve outside of the jurisdiction. A confirmation application is not, in my opinion, relevantly different. The relevant rule is r 20.35 of the Federal Court Rules 2011 (Cth). It provides: '20.35 Production to Court (1) A party may apply to the Court for an order that another party produce to the Court a document in the party's control relating to an issue in the proceeding. (2) The Court may inspect a document to decide the validity of an objection to production, including a claim that the document is privileged from production.' 28 There is no requirement in this rule that the issue be a trial issue. Apotex is, with respect, plainly correct. Accordingly, I accept in principle that it is legitimate to issue a notice to produce to assist with the determination of a confirmation of service application. 29 Turning then to (b), Mr Brennan, who appeared for the Applicant, accepted that there were difficulties in justifying both Notices to Produce solely on the Apotex basis. He accepted my invitation to have a second attempt. The orders I made therefore were these: 3. The Notice to Produce dated 7 March 2018 be set aside. 4. The Notice to Produce dated 14 March 2018 be set aside. Ancillary matters 30 Both parties agreed that the costs of the two interlocutory applications should be costs in the cause. 31 Following these matters there was then some debate as to whether procedural directions should be made in relation to the First and Second Respondents or whether those directions should await the outcome of the as-yet-undetermined confirmation application. I concluded that the case should not be delayed pending the resolution of the confirmation issue. In the event, I stood the matter over for a further case management hearing on 20 June 2018 to give the parties a chance to work out some agreed procedural orders. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate: Dated: 4 July 2018