FEDERAL COURT OF AUSTRALIA Wilson v Secretary, Department of Agriculture, Fisheries and Forestry [2023] FCA 29 File number(s): ACD 52 of 2021 Judgment of: GOODMAN J Date of judgment: 31 January 2023 Catchwords: PRACTICE AND PROCEDURE – Application for discovery – Discovery in administrative law cases – appropriate breadth of discovery categories – application allowed in part Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) Federal Court of Australia Act 1976 (Cth), ss 37M and 37N Public Service Act 1999 (Cth), ss 11, 13 and 15 Federal Court Rules 2011 (Cth), rr 20.11 and 20.13 Public Service Regulations 1999 (Cth), regs 5.28 and 5.32 Cases cited: Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 398 Division: General Division Registry: Australian Capital Territory National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 41 Date of last submission/s: 21 October 2022 Date of hearing: 1 April 2022 Counsel for the Applicant: Mr N Oram Solicitor for the Applicant: Mackenzie Workplace Law Counsel for the First Respondent: Mr T J Dixon Solicitor for the First Respondent: Maddocks Solicitor for the Second Respondent: Australian Government Solicitor ORDERS ACD 52 of 2021 BETWEEN: JOHN CUNDELL WILSON Applicant AND: SECRETARY OF THE DEPARTMENT OF AGRICULTURE, FISHERIES AND FORESTRY First Respondent MERIT PROTECTION COMMISSIONER Second Respondent order made by: GOODMAN J DATE OF ORDER: 31 January 2023 THE COURT ORDERS THAT: 1. Compliance with r 20.13 (3) of the Federal Court Rules 2011 is dispensed with, with respect to the applicant's application for discovery. 2. Subject to order 3, the first respondent give the applicant, by 27 February 2023, discovery of documents recording or evidencing any complaints made by Melissa Brown, Dawn Kelly, Jane Wiles, Emma Rossiter, Julia Church, Lawrence Gardener, Gregory Richardson, Ryan Genero, and Thomas Buckland concerning the behaviour, conduct or performance of the applicant during the period 1 May 2018 to 30 March 2019. 3. The first respondent is not required to discover any documents which have previously been produced by the first respondent pursuant to any previous order in this proceeding. 4. The applicant's application for discovery is otherwise dismissed. 5. The question of costs of that application is reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT GOODMAN J INTRODUCTION 1 These reasons for judgment deal with an application by the applicant for an order that the first respondent (Department) provide discovery of documents. No application is made with respect to the second respondent (Commissioner), who has entered a submitting notice in this proceeding. BACKGROUND 2 In April 2002, the applicant commenced employment with the Department at an EL2 level. 3 The applicant's evidence is that from late 2017 he started having problems managing his staff and made requests of his supervisor, Ms Brown, for assistance with issues he was facing in that regard. 4 In May 2018, the Department engaged an independent external advisor, Ascend HR. The applicant contends that Ascend HR undertook an investigation of his conduct in circumstances where the fact of that investigation was not made known to him and he was told that the purpose of the engagement of Ascend HR was merely a "team building exercise". Ascend HR interviewed the applicant and a number of staff within the team managed by the applicant and in December 2018, Ascend HR produced a report. 5 In late March 2019, the Department engaged Ms Deegan, a consultant from Ashurst, to undertake an investigation into complaints concerning the applicant's performance and behaviour and to determine whether or not the alleged conduct of the applicant should be referred for formal investigation in relation to a suspected breach of the APS Code of Conduct, which is found in s 13 of the Public Service Act 1999 (Cth) (PS Act). That section provides, in so far as is presently relevant: 13 The APS Code of Conduct … (3) An APS employee, when acting in connection with APS employment, must treat everyone with respect and courtesy, and without harassment. … (11) An APS employee must at all times behave in a way that upholds: (a) the APS Values and APS Employment Principles; and … 6 On 17 April 2019, Ms Deegan prepared a report in which she found that there was sufficient evidence to initiate a formal investigation for suspected breaches, by the applicant, of elements of the Code of Conduct. 7 On 6 May 2019, the applicant's employment was suspended. 8 On 14 May 2019, the Department engaged Ms Spivey of Ashurst to conduct an investigation. On 3 October 2019, Ms Spivey provided to the Department her investigation report. 9 On or about 8 September 2020, the Department notified the applicant that it had made a decision that the applicant had breached ss 13(3) and (11)(a) of the PS Act (Breach Decision). 10 On 6 November 2020, the applicant applied to the Commissioner for a review of the Breach Decision. On 3 February 2021, the Commissioner made a recommendation under reg 5.28 of the Public Service Regulations 1999 (Cth) to the Department to confirm the Breach Decision (Recommendation to Confirm Breach Decision). 11 On 17 February 2021, the Department made a decision under reg 5.32 of the Regulations to accept the Commissioner's recommendation (Confirmation of Breach Decision). 12 On 14 April 2021, the applicant was notified that the Department had made a decision to impose sanctions on the applicant under s 15 of the PS Act (Sanction Decision). On 14 May 2021, the applicant applied to the Commissioner for review of the Sanction Decision. 13 On 24 May 2021, the applicant was demoted to an EL1 level, with a consequent reduction in his remuneration. 14 On 2 July 2021, the Commissioner made a decision under reg 5.28 of the Regulations to make a recommendation to the Department to confirm the Sanction Decision (Recommendation to Confirm Sanction Decision). 15 On 9 July 2021, the Department made a decision to accept the recommendation of the Commissioner to confirm the Sanction Decision (Confirmation of Sanction Decision). 16 In this proceeding, the applicant seeks an extension of time in which to lodge an application for orders for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) of the Breach Decision, the Recommendation to Confirm Breach Decision, the Confirmation of Breach Decision, the Sanction Decision, the Recommendation to Confirm Sanction Decision and the Confirmation of Sanction Decision. The applicant has filed a draft originating application. As counsel for the applicant submitted, the draft originating application sets out detailed grounds supported by detailed particulars and the discovery application is to be evaluated against those grounds. 17 As part of this proceeding, the Department was ordered to provide to the applicant by way of discovery "the brief of documents that were before the relevant Breach and Sanction decision-makers … being the documents considered in arriving at both the Breach and Sanction decisions". Documents were provided to the applicant following that order and no suggestion has been made that such discovery is deficient. CONSIDERATION 18 Rule 20.13 (3) of the Federal Court Rules 2011 (Cth) provides that an application by a party for an order that another party to a proceeding give discovery may not be made until 14 days after all respondents to the proceeding have filed a defence or an affidavit in response to the affidavit accompanying the originating application. As noted above, this proceeding concerns an application for an extension of time, there is no extant originating application, and this application for discovery has been brought by reference to the draft originating application. The applicant sought, and the Department did not oppose, the making of an order dispensing with the requirements of r 20.13 (3). In view of the nature of the proceeding, and the absence of opposition, I will make such an order. 19 The discretion to order a party to provide discovery is informed by the mandate that such an order is not to be made unless it would facilitate the just resolution of the proceeding quickly, inexpensively and efficiently as possible: see ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) and r 20.11 of the Rules. It is also informed by the considerations in Part 10 of the Court's Central Practice Note (CPN1) including in particular those in cll 10.6 and 10.7. Further, in administrative law cases such as the present, discovery will not be ordered unless a party provides an acceptable justification for this to occur: see the Administrative and Constitutional Law and Human Rights Practice Note (ACLHR-1) at [8.1]. Category 1 20 The first category of documents sought by the applicant is: Documents recording or evidencing any complaints made by Melissa Brown, Dawn Kelly, Jane Wiles, Emma Rossiter, Julia Church, Lawrence Gardener, Gregory Richardson, Ryan Genero, and Thomas Buckland (Complainants) concerning the behaviour, conduct or performance of the applicant (Complaints) during the period 1 May 2018 to 30 March 2019. 21 The applicant contends that the documents described in this category will facilitate proof of a denial of procedural fairness with respect to the Breach Decision because there was an unreasonable delay: (1) between (a) the time the conduct the subject of the allegations was alleged to have occurred; and (b) the time at which the applicant was notified of the alleged conduct (ground 1.b.(a)); (2) between (a) the time that the Department commenced an investigation into and received complaints in relation to the alleged conduct of the applicant; and (b) the time that the applicant received notice of that investigation and the complaints (ground 1.b.(b)). 22 The applicant also contends that the documents will facilitate proof of materiality of the denial of procedural fairness. 23 The particulars provided for these grounds include particulars of: (1) a complaint having been made in early 2018 by Ms Dawn Kelly (supported by references to emails including an email of 10 May 2018); (2) the commencement of an investigation into the conduct of the applicant having occurred "[i]n early 2018 and before 15 May 2018" (again supported by references to emails including an email of 10 May 2018); and (3) meetings between employees of the Department and various complainants during December 2018 during which meetings it is alleged the complainants were invited to make formal complaints identifying specific behaviours of the applicant that breached the Code of Conduct. 24 The evidence in support of the application includes evidence that two employees within the team headed by the applicant (but who are not complainants) were told by Ms Brown that as a result of complaints concerning the applicant's conduct, Ascend HR had been engaged to undertake an investigation and prepare a report concerning that conduct. 25 I am persuaded that there should be an order requiring the Department to provide discovery of the documents described in category 1, for the following reasons. 26 First, the dates on which complaints were made concerning the applicant are relevant to the assessment of the allegations of delay in the context of considering whether such delay amounted, or contributed, to a denial of procedural fairness. 27 Secondly, from the particulars and evidence described above, it appears that the applicant is presently in a position where he may contend that Ms Kelly made a complaint in early 2018 and that complaints by other complainants were made by December 2018 including some complaints prior to the engagement of Ascend HR, but he is not aware of when these complaints were made. The number of such complainants and the dates of their complaints relative to the date upon which the applicant was made aware of such complaints may be of some moment in determining whether there was a denial of procedural fairness. 28 Thirdly, category 1, as drafted, is narrow and targeted and does not appear to be onerous in its terms; and the Department did not contend that discovery of these documents would cause it any difficulty. 29 Finally, I do not accept the Department's submission that the documents sought are not in respect of "decisions" required to be made under the PS Act or as defined in the ADJR Act. In particular, the Department contends that the initial complaints were not actions taken under the PS Act or any other enactments. However, documents captured by category 1 may still be relevant to the context in which, or the process by which, such a decision was made. Further, to the extent that the Department alleges that the documents sought go to conduct which occurred prior to, and which is unconnected with, the Breach Decision and cannot be considered as part of the review of the decision, I reject this submission. A denial of procedural fairness may be founded in events which are not proximate to the making of the decision and the degree of connection between that conduct and the decision is a matter for final hearing. 30 I note that the applicant also contended that documents described in category 1 would facilitate proof of materiality of the denial of procedural fairness. It is not necessary to consider this argument in any detail given my conclusion that discovery of the documents described in this category should be provided. For completeness, I note that if I had not been satisfied that the documents were relevant to establishing a denial of procedural fairness I would not have ordered that they be discovered for the purpose of establishing materiality, for the reasons set out at [37] below. Categories 2 to 9 31 The second to ninth categories of documents sought by the applicant are: 2. Documents relating to the consideration by the Department of the Complaints up to 30 March 2019. 3. Documents relating to any decision of the Department: (a) in early to mid-2018, to initiate an investigation into the behaviour, conduct or performance of the applicant, and (b) in or around December 2018 or early 2019, to initiate a code of conduct investigation in relation to the behaviour of the applicant. 4. Documents relating to the engagement of Ascend Human Resources in or around early to mid-2018, including but not limited to any communications with employees of the Department regarding the purpose of engaging Ascend Human Resources or the work to be performed by Ascend Human Resources under the engagement. 5. Documents relating to the investigations undertaken by Ascend Human Resources in or around mid to late 2018. 6. Communications regarding the content of the Ascend Human Resources Report including the Department providing any comments on or requests concerning the content of the Report. 7. Consideration by the Department of any draft or final Report of Ascend Human Resources in or around late 2018 and early 2019. 8. Documents recording or evidencing communications in December 2018 and January 2019 between Neal Mason, Ashleigh Buckland, Bianca Norton, Renee Skilling, any other member of the Department's human resources branch, the Complainants, and any other employee of the Department directly or indirectly under the supervision of the applicant, regarding: (a) the Ascend Human Resources Report; (b) the behaviour of the applicant; (c) the making of complaints in relation to the behaviour of the applicant; (d) the preparation of complaints in relation to the behaviour of the applicant; (e) the performance management of the applicant, and/or (f) the conducting of a code of conduct investigation in relation to the applicant. 9. Documents relating to the decision of the Department in or around December 2018 or early 2019 to commence a code of conduct investigation in relation to the behaviour of the applicant. 32 The applicant contends that the documents described in these categories will facilitate proof: (1) of a denial of procedural fairness arising from alleged conduct in connection with the investigation and in particular that the Department: (a) decided to interview and obtain evidence from only the complainants and did not interview or obtain evidence from other witnesses (ground 1.c.(a)); (b) prevented the applicant from identifying and obtaining evidence in relation to the allegations (ground 1.c.(b)); (c) refused the applicant's request to interview or obtain evidence from witnesses identified by him (ground 1.c.(c)); (d) refused or failed to investigate, identify and obtain evidence in relation to the matters raised by the applicant (ground 1.c.(d)), in circumstances where there was evidence before the Department that the complainants were not credible and reliable witnesses and that the complaints had been made or pursued for an ulterior or improper purpose (ground 1.c.(h)); (2) of the materiality of the alleged denial of procedural fairness; and (3) that the Breach Decision was made for an improper purpose, was an abuse of process or was otherwise contrary to law (grounds 1.c.(h) and 8). 33 I am not persuaded that discovery of the documents in these categories should be ordered, for the following reasons. 34 First, the applicant's evidence and submissions did not address the critical question as to why discovery of the documents described in these categories should be ordered (i.e. why it would facilitate the just resolution of the proceeding, as quickly, inexpensively and efficiently as possible), beyond addressing the question of relevance. Further, the answer to that critical question is not otherwise readily apparent (as it is for category 1). Whilst establishing relevance is necessary, it is not sufficient. For example, there is no evidence before the Court which addresses the importance of the documentation sought (CPN1, [10.6(d)(ii)]); or how the documents sought are or are very likely to be significantly probative; or materially supportive of, or materially adverse to any party's case in the proceeding (CPN1, [10.6(d)(iv)]). 35 Secondly, these categories are not limited and targeted (CPN1, [10.6(d)(iii)]) and instead are cast in terms which travel well beyond that which is allowable. In particular: (1) categories 2 to 5 and 9 call for documents "relating to" various matters. The width of this expression is likely to require the production of documents bearing no relevance to the issues in this proceeding. Further, there is also no temporal limitation in categories 2 to 5; (2) category 6 calls for communications "regarding" the content of the Ascend HR report. Again, the width of this expression is likely to require the production of documents that are of no relevance to the issues in the proceeding and there is again no temporal limitation; (3) category 7 as drafted does not call for any documents. If, as may be the case, it was intended (consistently with the previous categories) to catch documents "relating to" or "regarding" consideration by the Department of any draft or final report by Ascend HR, such a category would be too broad for the reasons set out in the previous sub-paragraphs; and (4) category 8, albeit within a relatively short time frame, calls for documents recording or evidencing communications involving " any other member of the Department's human resources branch" and "any other employee of the Department directly or indirectly under the supervision of the applicant". 36 Thirdly, the grounds to which these categories are said to relate and which are described at [32] above are extensively particularised by reference to documents presently in the possession of the applicant. Yet, no attempt has been made to identify with any precision the types of further documents that the applicant requires and instead the categories have been drafted in overly broad terms. 37 Fourthly, whilst I accept that it will be necessary for the applicant to satisfy the Court of the materiality of any jurisdictional errors that are established, the nature of the proven jurisdictional error informs the assessment of the materiality of that error. To the extent that the applicant satisfies the Court that there has been a failure to afford procedural fairness then that result renders unnecessary the discovery of documents to establish the materiality of such an error. That is so because the fact of the denial of procedural fairness is sufficient to establish materiality and it is not necessary to adduce evidence of a counter-factual position that would have obtained if procedural fairness had been afforded: see Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 at 342 to 343 [60] (Gageler and Gordon JJ); Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 398 at 410 [33] (Kiefel CJ, Keane and Gleeson JJ), 412 [41], 415 [55] and 416 [59] (Gageler J), 417 [63], 420 to 422 [76] to [81] and 423 [85] to [86] (Gordon J). 38 Finally, it is not clear that any discovery is required with respect to ground 1.c (h), or the related ground 8. By those grounds it is alleged that the Breach Decision was infected by error due to a breach of the rules of natural justice, a failure to observe the rules of procedural fairness and because that decision was otherwise contrary to law (including as an abuse of process). Those errors are alleged to have arisen because there was evidence before the Department that the complainants were not credible and reliable witnesses and that the complaints had been made or pursued for an ulterior or improper purpose in that: (1) the applicant had alleged, and there was evidence before the Department, that the applicant's supervisor, Ms Brown, had undermined, harassed or bullied the applicant and had improperly taken steps that could and did lead to him being removed from his position; (2) the applicant had alleged, and there was evidence before the Department, that the complaints were made at the direction, request or initiation of Ms Brown and/or the Department; (3) the applicant had alleged, and there was evidence before the Department, that the complainants: disliked, were hostile to or antagonistic toward the applicant; had undermined, harassed or bullied the applicant; did not recognise or accept the applicant's functions as a manager or his expertise and experience; and wished for the applicant to be removed from his position as manager of the team; (4) the applicant had alleged, and there was evidence before the Department, that the complainants collaborated in the preparation of their complaints and in the preparation of their evidence in support of those complaints; (5) the Department found that: (a) there was a noticeable similarity between the complainants' accounts of the incidents and behaviours the subject of the allegations, particularly in language the complainants used to describe relevant incidents or behaviours; (b) the consistency of the complainants' accounts was likely the result of various communications between the complainants; (c) despite the complainants' previous recounting of the incidents or behaviours said to have been of concern to them it was difficult to elicit further particulars from the complainants about such incidents or behaviour; (d) the majority of the incidents and behaviours the subject of the allegations related to personal interactions between the applicant and the complainants; and (e) there was limited documentary evidence to support the allegations; (6) the Department did not accept particular aspects of the complainants' evidence; (7) there was no evidence that the Department had considered whether it was appropriate to take no action in relation to the allegations, or whether it was appropriate to take action instead of a Code of Conduct investigation; and (8) there was no evidence that the Department had considered whether to conduct a Code of Conduct investigation in relation to one or more of the complainants. 39 As is apparent: (1) sub-paragraphs (1) to (4) of ground 1.c.(h) are premised upon there having been evidence before the Department of various matters (namely that the complainants were not credible and reliable witnesses and that the complaints had been made or pursued for an ulterior or improper purpose). In circumstances where the applicant has been provided with all of the documents that were before the maker of the Breach Decision, discovery does not appear to be necessary to facilitate proof of matters relevant to these grounds and the applicant did not explain why such discovery was needed; (2) sub-paragraphs (5) and (6) of ground 1.c.(h) are allegations as to findings that were made by the Department. Discovery should not be necessary with respect to these subparagraphs in circumstances where the applicant is in a position to plead that such findings were made; and the applicant did not explain why such discovery is necessary; (3) sub-paragraphs (7) and (8) of ground 1.c.(h) are allegations that there was no evidence that the Department had considered particular matters. The applicant's submissions did not address how discovery would assist in facilitating proof of these matters. Further, as noted above, it appears that discovery of the documents sought would produce many documents of no relevance to the proceeding. The applicant's alternative positions 40 The applicant's alternative positions are that the Court should order that the Department provide standard discovery, or non-standard discovery in accordance with the scope of discovery determined by the Court. Neither party addressed these positions in their submissions. I am not inclined to make an order for standard discovery or to craft a narrower version of non-standard discovery with respect to categories 2 to 9 in circumstances where the evidence before the Court does not address the matters discussed at [34] above. CONCLUSION 41 For the reasons discussed above, I will make an order dispensing with compliance with r 20.13 (3) of the Rules and an order requiring the Department to provide discovery of the documents described in category 1, save to the extent that such discovery has been provided. The applicant's application for discovery should otherwise be dismissed. I will reserve the question of costs. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Goodman. Associate: Dated: 31 January 2023