FEDERAL COURT OF AUSTRALIA Jack v CoreStaff NT Pty Ltd [2020] FCA 973 File number(s): NSD 2162 of 2018 Judge(s): BROMWICH J Date of judgment: 10 July 2020 Catchwords: PRACTICE AND PROCEDURE – application for notice to produce to be set aside – where applicant alleges no legitimate reason to issue notice – whether additional discovery more appropriate to seek documents – where information necessary to ascertain the identity of potential group members – where affidavit based on information and belief stated no such documents existed – where such documents subsequently produced – where further affidavit evidence provided – where no evidence adduced to establish non-existence of documents – objection upheld in part – application otherwise dismissed Legislation: Evidence Act 1995 (Cth) s 69(4) Federal Court of Australia Act 1976 (Cth) s 37M(1) Cases cited: Ceramic Fuel Cells Ltd (in liq) v McGraw-Hill Financial Inc [2016] FCA 401; 245 FCR 340 FUD18 v Minister for Home Affairs [2019] FCA 1858 McGrath v HNSW Pty Ltd [2015] FCA 442; 232 FCR 532 Date of hearing: Determined on the papers Date of last submissions: 6 May 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 14 Counsel for the Applicants: Mr J J Fernon SC, Mr J C Conde Solicitor for the Applicants: DLA Piper Australia Counsel for the Respondent: Mr S J Maybury Solicitor for the Respondent: Levitt Robinson Solicitors ORDERS NSD 2162 of 2018 BETWEEN: ALOIS JACK First Applicant PETER GULI Second Applicant ASRON PORA (and others named in the Schedule) Third Applicant AND: CORESTAFF NT PTY LTD ACN 129 495 263 Respondent JUDGE: BROMWICH J DATE OF ORDER: 10 July 2020 THE COURT ORDERS THAT: 1. The application to set aside the notice to produce dated 4 February 2020 be dismissed. 2. The respondent comply with the 4 February 2020 notice to produce in respect of production of the documents relating to Mr Derek Gideon, as well as those relating to former employees in respect of whom the respondent has already agreed to production of documents. 3. Costs of the application be costs in the cause. 4. The parties be given leave to seek a different costs order at the next case management hearing. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BROMWICH J: 1 This is an adjudication of an interlocutory application by which the respondent, CoreStaff NT Pty Ltd, seeks to have a notice to produce issued by the applicants set aside. The applicants' substantive proceeding is a representative action brought on their own behalf and on behalf of group members seeking compensation arising out of prior employment by CoreStaff NT. A live issue in the proceeding is ascertaining the members of the group. 2 There has been a discovery process by which CoreStaff NT was required to produce employment records for former employees who: (1) received a standard form letter in Papua New Guinea (PNG) in the calendar years of 2011 or 2012 referring to an offer of employment (first criterion); and (2) received on or after 23 November 2012 a letter with the subject referring to the ceasing of employment (second criterion). 3 The first criterion is narrower than pleaded in the current version of the statement of claim because it is confined to letters received in PNG. The second criterion is narrower than pleaded because it is confined to letters that contain a particular subject heading. The discovery category is therefore, at least in theory, seeking records for a subset of group members, assuming some offer letters in 2011 and 2012 were received outside PNG and some termination letters received on or after 23 November 2012 had a different subject heading. 4 The notice to produce was issued because the applicants' solicitors wrote to CoreStaff NT's solicitors noting that discovery had not been provided for 25 former employees, suggesting they may have been overlooked. CoreStaff NT's solicitors responded to the effect that CoreStaff NT had no documents which related to those individuals and fell within the discovery criteria summarised above. The notice to produce was accompanied by a letter that conveyed a belief on the part of the applicants' solicitors that the 25 former employees were group members and received letters that fell within the discovery criteria, enclosing a termination letter for the first of them. 5 As it transpired, the position of both parties was partially misplaced as to the 25 former employees. As a result of negotiations between the parties following the issuing of the notice, including by correspondence, the dispute has narrowed to the production of those records for 15 former employees. Of the 10 former employees who are no longer in dispute: (1) the applicants no longer seek records for four former employees; (2) CoreStaff NT has produced records for two former employees; and (3) CoreStaff NT has agreed to produce records for a further six former employees. 6 The substance of CoreStaff NT's continued opposition to produce records for the 15 former employees in dispute is an assertion that there is no legitimate basis for the applicants to seek those records. CoreStaff NT objects to the applicants' reliance upon an opinion expressed in an affidavit by a solicitor working on the case for them that each of the remaining 15 former employees is, or potentially is, a group member. CoreStaff NT contends that the appropriate course is for the applicants to move the Court to order additional discovery, relying upon a relatively recent decision by Thawley J in FUD18 v Minister for Home Affairs [2019] FCA 1858 at [23], where his Honour discusses the limitations imposed on the use of a notice to produce. The applicants do not cavil with the principles there stated, but also rely upon [24] to [25] of that decision. The three paragraphs are as follows: [23] A Notice to Produce served pursuant to r 30.28 has the same coercive effect as a subpoena to produce documents. In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 61 at [6], Collier J set out the following six principles relevant to the validity of a Notice to Produce served under r 30.28: (1) The party which has issued a Notice to Produce bears the onus of establishing that the documents the subject of the Notice are sufficiently relevant to justify production (Seven Network Ltd v News Ltd (No 11) at [6], Cheung at [55]). (2) Timing of the issue and service of a Notice to Produce is a relevant factor in respect of any application to set aside the Notice. (3) A Notice to Produce cannot be used as an alternative to an application for discovery or for further and better discovery. (4) It is necessary that the material sought has an apparent relevance to the issues in the principal proceedings. The test of apparent relevance in this context is whether the documents are reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case. (Seven Network (No 11) at [6], Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union at [14]). (5) A Notice to Produce cannot be used for the purposes of "fishing" or for the purpose of determining a preliminary question as to whether a party has a supportable case. (6) A Notice to Produce may be set aside on the basis that it is unduly burdensome if the width of the categories requested is too broad or the categories are not described with adequate specificity (Tony Azzi Automobiles Pty Ltd v Volvo [2006] NSWSC 283 at [20], Sportsbet Pty Ltd v New South Wales (No 9) [2010] FCA 31). [24] The question whether the documents are sufficiently relevant to justify production is not whether the documents sought under the Notice to Produce are admissible or will be admitted into evidence. The question has been framed as whether the documents sought are of "apparent relevance to the issues" in the proceedings – see: National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 at 385. It has been framed as whether the documents sought are "reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case" – see: Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 927 (Waddell J). The concept of "apparent relevance" was explained by Beaumont J in Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90 at 103 as involving the question whether the material "could possibly throw light on the issues in the main case". [25] In Alister v The Queen (1984) 154 CLR 404 at 414, Gibbs CJ concluded that "a subpoena had a legitimate forensic purpose if it [appeared] to be 'on the cards' that the documents [would] materially assist the defence" in a criminal proceeding. 7 The applicants also point to the desirability of advancing their quest to identify further members of the group in a way that facilitates the just resolution of this overall dispute as quickly, inexpensively and efficiently as possible, as mandated by s 37M(1) of the Federal Court of Australia Act 1976 (Cth). They contend that obtaining documents to assist in ascertaining the identity of group members in a representative proceeding by the use of a notice to produce is appropriate, citing a decision in which Wigney J took that view by granting leave in representative proceedings to issue and serve a subpoena overseas: Ceramic Fuel Cells Ltd (in liq) v McGraw-Hill Financial Inc [2016] FCA 401; 245 FCR 340 at [73], [80]-[83], [89] and [100]-[101]. 8 In McGrath v HNSW Pty Ltd [2015] FCA 442; 232 FCR 532, Gleeson J considered a situation in which a notice to produce was relied upon to obtain documents referred to in an expert valuation report. The opposing party sought to have the notice to produce set aside upon the basis that it was impermissible to substitute a notice to produce for a further application for discovery, relying upon a prior agreement on discovery categories. Her Honour, after carefully considering a body of authority, held that, in an appropriate case, subpoenas and notices to produce may be used even though the documents could have been the subject of an order for discovery, and that a prior agreement as to discovery categories was not a barrier to this taking place: see [23], [30] and [32]. Her Honour observed that the party who issued the notice to produce was not seeking a discovery-type decision, but rather the production of particular documents which had not been discovered. Thus the question of whether a notice to produce is lieu of further discover is appropriate may turn on the facts and evidence in the case at hand. 9 CoreStaff NT contends that the applicants' notice to produce cannot be appropriate because it has complied with its discovery obligations. The central premise upon which CoreStaff NT relies to form this conclusion is as follows. CoreStaff NT's solicitor deposes, on the basis of information and belief (and in some instances supported by file notes), to the proposition that because a termination letter has not been found among its records so as to meet the second criterion, it does not "have reason to believe" that such a letter exists and the former employee concerned therefore does not fall within its discovery obligations. CoreStaff NT's evidence does not explain the basis for the absence of that belief. The same assertion was initially made for a number of former employees for whom termination letters were later found by either CoreStaff NT or by the applicants, casting some doubt upon the reliability of that assertion. CoreStaff NT's central premise is then ostensibly supported in a second affidavit by the same solicitor which produces additional records by way of wage payments summarised in spreadsheets and certain further information to buttress the assertion made in the first affidavit. 10 Given that the approach taken by CoreStaff NT has already been found wanting, in that the same central premise was relied upon for at least two former employees for whom a termination letter was later uncovered, the denial of the existence of a termination letter based upon not finding one in its records is clearly problematic. That assertion, without more, cannot be given any real weight, especially given that CoreStaff NT does not, for example, adduce any evidence to prove the non-existence of any such termination letter by the process provided for by s 69(4) of the Evidence Act 1995 (Cth). In those circumstances, it is not possible to be comfortably assured that a termination letter has not been found only because it does not exist, as opposed to it not being found because of a records system which does not necessarily retain a copy of all such termination letters. 11 The totality of the evidence relied upon by CoreStaff NT must therefore be carefully examined to ensure that an assertion that has been demonstrated to be wrong in some instances is reliable for the remaining 15 former employees. In the absence of any evidence of a system which could prove the non-existence of the termination letters, the determination of whether or not it is reasonably likely that a termination letter might exist must be made on an individual basis, in the context of the totality of the employment information provided in the first and second solicitor affidavits. The existence of a letter of resignation may provide a degree of assurance that a termination letter is not likely to exist, but only if there is some basis for being satisfied that the resignation is likely to have related to the same employment episode, and not a different employment episode. This is particularly relevant in the present circumstances, where at least some individuals have ceased working for CoreStaff NT and then resumed working at that company at a later date. The same reasoning applies to the file notes detailing various circumstances by which an employee may have ceased work for CoreStaff NT. Further, the spreadsheets annexed to the second solicitor affidavit provide no information on their face about whether payments were made in relation to a specific episode of employment or role, even if payments were continuous, but rather depend upon the existence of other records for that information. The spreadsheets only prove that an employee was paid at certain times. They do not on their own prove that there is no reasonable possibility that a second criterion termination letter exists. 12 With the above observations in mind, the evidence relied upon by CoreStaff NT for the remaining 15 former employees leads to the following conclusions as to whether their employment records should be produced: Former employee First solicitor affidavit (3.4.20) New information in second solicitor affidavit (29.4.20) Comparison of information & conclusion (1) Derek Gideon [25.1] No record of having sent a letter to Mr Gideon, terminating his employment with CoreStaff NT. [12] A copy of a payment spreadsheet is annexed as 'JRM-1'. File note JRM-8 says that assignment ended and his visa expired 30 April 2015 (file note dated 08.05.2015). [26] A copy of a file note regarding the end of Mr Gideon's employment with CoreStaff NT annexed as 'JRM-8'. The spreadsheet at JRM-1 shows payments made up to that date. Conclusion: The reasonable possibility that a second criterion termination letter from 23 November 2012 exists has not been excluded. Production of employment records should be required. (2) Mende Korul [27.2] CoreStaff NT has no record of having sent a letter to Mr Korul, terminating his employment with CoreStaff NT or advising him that his services were no longer required, on or after 23 November 2012, nor does it "have reason to believe" it sent any such letter. [15] A copy of a payment spreadsheet relating to Mende Korul is annexed as 'JRM-2'. No supporting documents were provided in the first affidavit. The supporting documents annexed at JRM-2 reflect the payment dates set out in the affidavit, and JRM-3 contains a file note of Mr Korul's termination on 1 April 2012. [16.1] From about February 2012 until March 2012, Mr Korul was placed by CoreStaff NT in a role working with NRW Civil & Mining (NRW); Conclusion: The reasonable possibility that a second criterion termination letter exists has been excluded. Production of employment records should not be required. [16.2] a break in payments occurred between 1 April 2012 and 10 June 2012 because: [16.2.1] Mr Korul went on leave and did not return to work when required by NRW and, consequently, NRW terminated Mr Korul's role; and [16.2.2] Mr Korul was not placed in a new position by CoreStaff NT until about June 2012; [16.3] Mr Korul's employment with CoreStaff NT ended prior to 23 November 2012; and [16.4] the single payment made by CoreStaff NT to Mr Korul in June 2013 reflected Mr Korul's remaining annual leave balance and was made after Mr Korul's employment ended. [17] Annexed as 'JRM-3' a file note which was: [17.1] recorded by CoreStaff NT; and [17.2] relates to the matters referred to in [16.2.1] above. (3) Dominic Henry [28.2] CoreStaff NT has no record of having sent a letter to Mr Henry, terminating his employment or advising him that his services were no longer required, on or after 23 November 2012, nor does it "have reason to believe" it sent any such letter. [18] A copy of a payment spreadsheet relating to Dominic Henry is annexed as 'JRM-4'. The file note at JRM-9 to the first affidavit refers to a "Transfer to Client" on 13 January 2015. The spreadsheet at JRM-4 reflects that payments were made up to this time. [29] A copy of a file note, which was recorded by CoreStaff NT, regarding the end of Mr Henry's employment, is annexed as 'JRM-9'. [19.1] A break in payments occurred in about April 2013 and February 2014 because Mr Henry took leave without pay; and Conclusion: The reasonable possibility that a second criterion termination letter exists has been excluded. Production of employment records should not be required. [19.2] Mr Henry resigned from employment with CoreStaff NT and took up employment elsewhere. (4) Chris Lako [33.1] Chris Lako resigned from employment with CoreStaff NT in about August 2013. [20] A copy of a payment spreadsheet relating to Chris Lako is annexed as 'JRM-5' JRM-10 contains a resignation letter from Mr Lako dated 2 August 2013 and a file note concerning a "transfer to client". JRM-5 shows that the final payment to Mr Lako was made in August 2013 and that payments were made consistently aside from the break mentioned at [21.1]. [33.2] CoreStaff NT has no record of having sent a letter to Mr Lako, terminating his employment or advising him that his services were no longer required, on or after 23 November 2012, nor does it "have reason to believe" it sent any such letter. [21.1] A break in payments occurred in about July 2012 because Mr Lako took leave without pay; and Conclusion: The reasonable possibility that a second criterion termination letter exists has been excluded. Production of employment records should not be required. [34] A copy of a letter dated 2 August 2013 which was sent to CoreStaff NT by Mr Lako, and a file note recorded regarding the end of Mr Lako's employment are annexed as 'JRM-10'. [21.2] Mr Lako resigned from employment with CoreStaff NT in about August 2013. [22] Annexed as 'JRM-6' is a file note which: [22.1] was recorded by CoreStaff NT; and [22.2] records the reason why Mr Lako had taken leave without pay, referred to in [21.1] above. (5) Pora Epaina [37.1] Pora Epaina resigned from employment with CoreStaff NT in about January 2014 and took up employment elsewhere. [23] A copy of a payment spreadsheet relating to Pora Epaina is annexed as 'JRM-7'. The email annexed at JRM-12 contains a resignation from Mr Epaina dated 2 January 2014. JRM-7 indicates payments were made to Mr Epaina up to that date. [37.2] CoreStaff NT has no record of having sent a letter to Mr Epaina, terminating his employment or advising him that his services were no longer required, on or after 23 November 2012, nor does it "have reason to believe" it sent any such letter. Conclusion: The reasonable possibility that a second criterion termination letter exists has been excluded. Production of employment records should not be required. [38] Copies of emails/file notes, which were recorded by CoreStaff NT, regarding the end of Mr Epaina's employment, are annexed as 'JRM-12'. (6) Luxton Garea [39.1] Luxton Garea resigned from employment with CoreStaff NT in or about March 2013 and took up employment elsewhere; [25] A copy of a payment spreadsheet relating to Luxton Garea is annexed as 'JRM-8'. File note JRM-13 from the first solicitor affidavit states that Mr Garea was a "Transfer to Client" on 17 March 2013. [39.2] CoreStaff NT has no record of having sent a letter to Mr Garea, terminating his employment or advising him that his services were no longer required, on or after 23 November 2012, nor does it "have reason to believe" it sent any such letter. [26.1] Mr Garea resigned from employment with CoreStaff NT in or about March 2013 and took up employment elsewhere; and JRM-8 shows that his final payment was 28 April 2013. [40] A copy of a file note, which was recorded by CoreStaff NT, regarding the end of Mr Garea's employment, is annexed as 'JRM-13'. [26.2] a break in payments occurred in about March 2013 because Mr Garea had vacated his accommodation and the real estate agent needed to undertake an inspection of the property in order to release Mr Garea's bond. Conclusion: The reasonable possibility that a second criterion termination letter exists has been excluded. Production of employment records should not be required. (7) Gordon Aihi [41.1] Gordon Aihi resigned from employment with CoreStaff NT in about November 2013. [27] A copy of a payment spreadsheet relating to Gordon Aihi is annexed as 'JRM-9'. JRM-14 contains a letter of resignation from Mr Aihi. JRM-9 shows payments were made up until early December 2013. [41.2] CoreStaff NT has no record of having sent a letter to Mr Aihi, terminating his employment or advising him that his services were no longer required, on or after 23 November 2012, nor does it "have reason to believe" it sent any such letter. Conclusion: The reasonable possibility that a second criterion termination letter exists has been excluded. Production of employment records should not be required. [42.1] A letter, which was sent by Mr Aihi to an entity in CoreStaff NT's corporate group; and [42.2] a file note, which was recorded by CoreStaff NT, regarding the end of Mr Aihi's employment, are annexed as 'JRM-14'. (8) Gregory Lowa [45.1] Gregory Lowa resigned from employment with CoreStaff NT in about September 2014; and [29] A copy of a payment spreadsheet relating to Gregory Lowa is annexed as 'JRM-10'. JRM-16 includes a file note that Mr Lowa was transferred to a client on 1 September 2014. JRM-10 shows payments were made to Mr Aihi until the end of August 2014. [45.2] CoreStaff NT has no record of having sent a letter to Mr Lowa, terminating his employment or advising him that his services were no longer required, on or after 23 November 2012, nor does it "have reason to believe" it sent any such letter. Conclusion: The reasonable possibility that a second criterion termination letter exists has been excluded. Production of employment records should not be required. [46] A copy of a file note, which I am informed and verily believe was recorded by CoreStaff NT, regarding the end of Mr Lowa's employment, is annexed as'JRM-16'. (9) Clifford Oala [47.1] Clifford Oala resigned from employment with CoreStaff NT in about April 2013; and [31] A copy of a payment spreadsheet relating to Clifford Oala is annexed as 'JRM-11'. File note at JRM-17 in the first solicitor affidavit refers to a transfer to client dated 27 March 2013. JRM-12 refers to a "candidate email" from Mr Oala indicating an inability to return from annual leave on 9 May 2012 and requesting a return date of 24 May 2012. JRM-11 demonstrates consistent payments made up until the transfer date, including the break in payments mentioned in the second solicitor affidavit. [47.2] CoreStaff NT has no record of having sent a letter to Mr Oala, terminating his employment or advising him that his services were no longer required, on or after 23 November 2012, nor does it "have reason to believe" it sent any such letter. [32.1] A break in payments occurred in about May 2012 because Mr Oala took leave from work without pay. Conclusion: The reasonable possibility that a second criterion termination letter exists has been excluded. Production of employment records should not be required. [48] A copy of a file note, which was recorded by CoreStaff NT, regarding the end of Mr Oala's employment, is annexed as 'JRM-17'. [33] A copy of a file note which: [33.1] was recorded by CoreStaff NT; and [33.2] relates to the matter referred to in paragraph [32.1] above, is annexed as 'JRM-12', with the text from the right hand side text box reproduced, in full, at the bottom of the page. (10) Vanua Kota [53.1] Vanua Kota resigned from employment with CoreStaff NT in about February 2013; and [34] A copy of a payment spreadsheet relating to Vanua Kota is annexed as 'JRM-13'. File note JRM-20 notes with respect to Mr Kota "Resigned/end of assignment" on 1 February 2013. [53.2] CoreStaff NT has no record of having sent a letter to Mr Kota, terminating his employment or advising him that his services were no longer required, on or after 23 November 2012, nor does it "have reason to believe" it sent any such letter. Conclusion: the reasonable possibility that a second criterion termination letter exists has been excluded. Production of employment records should not be required. [54] A copy of a file note, which was recorded by CoreStaff NT, regarding the end of Mr Kota's employment, is annexed as 'JRM-20'. (11) Ian Naffy [55.1] Ian Naffy resigned from employment with CoreStaff NT in about March 2013, with a 14 March 2013 resignation letter produced; and [36] A copy of a payment spreadsheet relating to Ian Naffy is annexed as 'JRM-14'. JRM-21 is a resignation letter from Mr Naffy dated 14 March 2013 (effective 25 March 2013). JRM-14 shows payments up to 28 April 2013. [55.2] CoreStaff NT has no record of having sent a letter to Mr Naffy terminating his employment or advising him that his services were no longer required, on or after 23 November 2012, nor does it "have reason to believe" it sent any such letter. Conclusion: The reasonable possibility that a second criterion termination letter exists has been excluded. Production of employment records should not be required. [56] Copies of: [56.1] a letter, which the deponent was informed and believed was sent by Mr Naffy to a company in CoreStaff NT's corporate group; and [56.2] a file note, which the deponent was informed and believed was recorded by CoreStaff NT, regarding the end of Mr Naffy's employment, are annexed as'JRM-21'. (12) Paul Hembu [57.1] Paul Hembu resigned from employment with CoreStaff NT in about May 2013, with a 16 May 2013 resignation letter produced; and [38] A copy of a payment spreadsheet relating to Paul Hembu is annexed as 'JRM-15'. JRM-22 contains a resignation letter from Mr Hembu dated 16 May 2013 (to be effective 30 May 2013), and JRM-15 shows final payment on 09 June 2013. [57.2] CoreStaff NT has no record of having sent a letter to Mr Hembu, terminating his employment or advising him that his services were no longer required, on or after 23 November 2012, nor does it "have reason to believe" it sent any such letter. Conclusion: The reasonable possibility that a second criterion termination letter exists has been excluded. Production of employment records should not be required. [58.1] A letter, which was sent by Mr Hembu to an entity in the same corporate group as CoreStaff NT; and [58.2] a file note, which was recorded by CoreStaff NT, regarding the end of Mr Hembu's employment, are annexed as 'JRM-22'. (13) Anthony Geeves [59.1] Anthony Geeves is from the United Kingdom and is not from Papua New Guinea; and [40] A copy of a payment spreadsheet relating to Anthony Geeves is annexed as 'JRM-16'. JRM-16 shows date of final payment to Mr Geeves was 30 June 2013. JRM-17 is a file note with subject "Resignation" dated 30 June 2013. [59.2] CoreStaff NT has no record of having sent a letter to Mr Geeves, terminating his employment or advising him that his services were no longer required, on or after 23 November 2012, nor does it "have reason to believe" it sent any such letter. [41.1] Mr Geeves is from the United Kingdom and is not from Papua New Guinea; and Conclusion: The reasonable possibility that a second criterion termination letter exists has been excluded. Production of employment records should not be required. [41.2] Mr Geeves resigned from employment with CoreStaff NT in about June 2013. [42] A copy of a file note, which: [42.1] was recorded by CoreStaff NT; and [42.2] relates to the matter referred to at [41.2] above, is annexed as 'JRM-17'. (14) Bob Kamane [60.1] Bob Kamane resigned from employment with CoreStaff NT in about April 2013; and [43] A copy of a payment spreadsheet relating to Bob Kamane is annexed as 'JRM-18'. JRM-23 contains an undated letter of resignation from Mr Kamane, effective from 20 April 2013. JRM-18 shows date of final payment as 28 April 2013. [60.2] CoreStaff NT has no record of having sent a letter to Mr Kamane, terminating his employment or advising him that his services were no longer required, on or after 23 November 2012, nor does it "have reason to believe" it sent any such letter. Conclusion: The reasonable possibility that a second criterion termination letter exists has been excluded. Production of employment records should not be required. [61.1] A letter, which was sent by Mr Kamane to CoreStaff NT or, alternatively, an entity in the same corporate group; and [61.2] a file note, which was recorded by CoreStaff NT, regarding the end of Mr Kamane's employment, are annexed as 'JRM-23'. (15) Alex Weka [62.1] Alex Weka resigned from employment with CoreStaff NT in about January 2013; and [45] A copy of a payment spreadsheet relating to Alex Weka is annexed as 'JRM-19'. JRM-24 is a file note titled "Employee – Resignation" dated 15 January 2013. [62.2] CoreStaff NT has no record of having sent a letter to Mr Weka, terminating his employment or advising him that his services were no longer required, on or after 23 November 2012. [46.1] As at December 2011, Mr Weka was placed by CoreStaff NT in a role working with NRW; JRM-20 contains file notes regarding events leading up to the termination of his employment in December 2011 and May 2012 per the information extracted from the second solicitor affidavit. On this basis Mr Weka's employment was not likely to have been terminated via a second criterion termination letter. [63] A copy of a file note, which was recorded by CoreStaff NT, regarding the end of Mr Weka's employment, is annexed as 'JRM-24'. [46.2] a break in payments occurred in about December 2011 because: Conclusion: The reasonable possibility that a second criterion termination letter exists has been excluded. Production of employment records should not be required. [46.2.1] NRW terminated Mr Weka's role when he failed a breathalyser test; [46.2.2] Mr Weka was not placed in a new role by CoreStaff NT until about January 2012; and [46.2.3] during the intervening period, Mr Weka took leave without pay; [46.3] as at May 2012, Mr Weka was placed by CoreStaff NT in a role working with HWE Mining (HWE); [46.4] a break in payment occurred in about May 2012 because: [46.4.1] HWE terminated Mr Weka's role due to non-compliance with safety rules; [46.4.2] Mr Weka was not placed in a new role by CoreStaff NT until about June 2012; and [46.4.3] during the intervening period, Mr Weka took leave without pay; and [46.5] Mr Weka resigned from employment with CoreStaff NT in about January 2013. [47] Copies of file notes annexed as 'JRM-20': [47.1] were recorded by CoreStaff NT; and [47.2] relate to the matters referred to in [46.2.1] and [46.4.1] above. 13 Having considered the competing arguments and affidavit evidence summarised above, I am not satisfied that CoreStaff NT's compliance with its discovery obligations was adequate in respect of the former employee Mr Derek Gideon. I am satisfied that it is appropriate that this employment record is compelled by the applicants' notice to produce, rather than by way of any further discovery process. It follows that the CoreStaff NT's application to set aside the applicants' notice to produce must be dismissed for that limited reason, and compliance with that notice be required in relation to Mr Gideon, as well as for the additional six employees for which further production has already been agreed to as noted at [5] above. 14 As the outcome of the notice to produce has been mixed, and the conclusions reached for a number of the 15 former employees ended up largely turning on the additional information in CoreStaff NT's second affidavit, or following negotiation, I am presently of the view that the costs of the interlocutory application should be costs in the cause. However I will give the parties an opportunity to seek to persuade me to a different conclusion, should they wish to do so, at the next case management hearing. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich. Associate: Dated: 10 July 2020 SCHEDULE OF PARTIES NSD 2162 of 2018 Appellants Fourth Applicant: NATU KULMINOK Fifth Applicant: MATHIAS BUKO Sixth Applicant: MASOL WASPOL Seventh Applicant: MICHAEL PANDAI Eighth Applicant: KUNERD HEPTOL Ninth Applicant: BENNIE IPAI Tenth Applicant: PURI ANI Eleventh Applicant: LUCAS ANGUR Twelfth Applicant: MENDE KORUL Thirteenth Applicant: TIM OMEN Fourteenth Applicant: HENAO NOGO Fifteenth Applicant: SAM TONGES Sixteenth Applicant: KASPAR JACOB Seventeenth Applicant: KESI LAKE Eighteenth Applicant: LEROY GILLINA Nineteenth Applicant: SIMON MATHIAS Twentieth Applicant: JULIUS DIMARA