District Court New South Wales Medium Neutral Citation: FERZANA YALE v SG FLEET AUSTRALIA PTY LTD [2022] NSWDC 655 Hearing dates: 25 November 2022 28 November 2022 Date of orders: 28 November 2022 Decision date: 28 November 2022 Jurisdiction: Civil Before: Montgomery DCJ Decision: 1 Summons dismissed. 2 Plaintiff pay the defendant's costs. Catchwords: UCPR 5.2 – Preliminary Discovery – application for discovery of identify of person who gave reference regarding employment – Defamation – objectively based desire – for the purpose of commencing proceedings – whether defamatory imputation of "style" in context of leadership – fishing Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) r 5.1, 5.2, 5.2(1)(a), 5.2(2), 21.3 Cases Cited: The Age Company Limited v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26. Category: Principal judgment Parties: Ferzana Yale, plaintiff SG FLEET AUSTRALIA PTY LTD, defendant Representation: Counsel: Mr G Fredericks, counsel for the plaintiff Mr N Olson, counsel for the defendant Solicitors: Dibbs Barker, solicitors for the plaintiff Gilbert & Tobin, solicitors for the defendant File Number(s): 2022/00269809 Judgment EX TEMPORE 1. HIS HONOUR: the plaintiff proceeds by summons filed 9 September 2022. Counsel for the plaintiff properly presses the Court that the legitimate purpose of the orders is to identify the source of something said by a person to the defendant company. And by identifying that source, then to in a facilitative way, move into the subsequent prayers 2, 3 and 4, which are for discovery. As the matter was opened to me, on Friday 25 November, it was described as an "intended claim of defamation". Several times in the hearing, I expressed my concern in that regard. 2. In particular, by correspondence of 8 June 2022, the plaintiff's attorney informed the defendant's attorney that what was said by the so far anonymised person who spoke or communicated in some way with the defendant, was "so significant" that the defendant would not perform the contract of employment the plaintiff had then just signed with the defendant. That letter further said that the plaintiff, "may be entitled to make a claim for relief" against the persons who so spoke to the company. And of that speaking, the letter expressed, "who have made representations about her, at least in defamation". In a communication shortly before this matter came to the Court, on 5 October 2022, the plaintiff's solicitor informed the defendant's solicitor: "[It] seems to me that this matter is not yet and may never become a defamation claim for the purposes of that list, or an employment claim. It is a preliminary discovery application. While I accept that the application foreshadows a potential defamation claim, it also seems to me that any future proceedings may be capable of being described as an 'employment claim' (given that their subject matter is the termination of my client's employment)." 1. Before returning to the summons, I move to the facts in a very short way, as the core facts are not disputed, and can properly be briefly stated. 2. Commencing sometime in 2021, the defendant sought from the employment market, applications for the position of Group Head of People and Culture. Following assessment of those applications and with the assistance of an expert organisation for the assessment of applicants, the plaintiff was one of two recommended applicants. 3. On 9 March 2022, the plaintiff was in receipt of an offer of employment with a substantial bank, and was due for an interview with the Chief Executive Officer of the defendant for that advertised role. Timing was urgent for her, because she did not want to fall, no doubt, between the cracks by not taking up the offer of employment with the bank if she was unsuccessful in her application for employment with the defendant. The next day, 10 March 2022, she was interviewed by the Chief Executive Officer of the defendant, and he was aware of the urgency. The very next day, on 11 March 2022, the then Group Head of People and Culture of the defendant telephoned her, and informed her that the defendant would be making an offer, and the start date would be 11 April 2022. The plaintiff informed the Group Head of People and Culture that she had the other offer, and the urgency of her timing was such that she only had until the close of business the following Friday to respond to it. She was assured that the deal was as good as done for her employment with the defendant. Later that day, she received an email from the then Group Head of People and Culture, to which the Chief Executive Officer of the defendant was copied, attaching a contract of employment signed by the Chief Executive Officer. Communications were exchanged between the Chief Executive Officer and the plaintiff, as to what would be her job title on employment. 4. On 13 March 2022, the plaintiff provided a signed copy of the employment contract to both the Chief Executive Officer and the Group Head of People and Culture at the defendant. That contract is annexed to the plaintiff's affidavit. The terms of employment and most noticeably the salary, show that the position offered was very highly paid, and the reasonable inference from that is that it was a very senior position. The terms of employment refer to further benefits available following three years of satisfactory performance. That strongly infers that there was a longevity of employment in a senior and responsible position contemplated by the contractual engagement. 5. On 16 March 2022, things changed. First, the plaintiff received a call from a placement agent informing her that the defendant had decided to withdraw the offer, but without the agent giving the plaintiff reason for that. The plaintiff on the same day spoke to the then Group Head of People and Culture at the defendant. In a nutshell - and when I use that term, it is because this is the real crux of what is behind the plaintiff's application on the summons - she was informed that once the defendant started communicating her appointment after she had accepted the contract, someone mentioned, "concerns with your style". Further, that that person gave the defendant the contact of another person to speak to, and that that other person mentioned the same concerns with the plaintiff's style. She was informed that the defendant felt that the concerns, "were so significant that we had to withdraw the offer". 6. Annexed to the plaintiff's affidavit are references to documentation of internal communications within the defendant, which the plaintiff obtained from the defendant in response to her written request. Those documents evidence that on 17 March 2022, the plaintiff was informed by the defendant's Group Head of People and Culture that what had been said by those other people was in the context of her leadership. By her affidavit, at paragraphs [24] and [25], the plaintiff deposed that those statements by other persons were perceived by her as significant negative publications about her style and leadership, and that she believed she may be entitled to make a claim against those other persons, including in defamation. 7. As I have said, the correspondence between lawyers has not in a clear way limited the field of contemplated causes of action to only defamation. Indeed, that correspondence does not with any clarity identify other causes of action other than references to an "employment claim", which is not in itself a specie of cause of action. In the debate of this issue, the counsel for the parties - and indeed I found myself doing so - proffered to each other speculation as to what her causes of action might be. That very discussion, in my opinion, is a discussion by practising lawyers in a field of speculation as to cause of action, was a symptom of the absence in this application of an objectively identifiable cause of action. 8. When the matter was first before me on Friday 25 November 2022, I raised with counsel for the plaintiff that references to "style", and this pertains also to use of that term in regard to assessment of leadership, are not references which to my understanding infer a derogatory comment. The proceedings do not inform me of the particular nature of business undertaking, or of personnel and their proclivities within the defendant corporation. But considerations of "style" may by one corporation be considered a preferred "style" for the leadership position contemplated, and yet by another entity as not preferred. 9. I said to the parties it could, for instance, be that of the two applicants in the final consideration there was a "hair's breadth" between them in terms of preference. It could, as another speculative consideration, have been that what was said of the plaintiff was not derogatory of her leadership powers and capabilities, but merely to do with how in the very inexact science of choosing an employee, there might have been a concern as to how she might get along with another employee or contractor, whose continuation of role was important to the defendant. 10. Those speculative bases are endless, and the reason that they are endless is because there is nothing in the plaintiff's application more than that reference to "style" to which is directed the consideration of what, if any, cause of action might be available to the plaintiff, if those persons who made those statements to the defendant between 14 and 16 March 2022, could be identified. Within all of the above, the central focus in the summons is that the names of those persons who made those statements were redacted in the information provided by the defendant to the plaintiff when she sought informally, documents and information, concerning the withdrawal of her employment contract. 11. I repeat, the correspondence to which I earlier referred makes plain that the legal advisors of the plaintiff have not been able to, on the instructions available to them, identify even the area of law out of which the cause of action arises, more than in the general sense that something was said in the way that the plaintiff perceives it to have been said, and that could be defamatory. What was said is not known by the plaintiff in a specific or even a very general way. 12. Prayer 1 of the summons seeks an order pursuant to Uniform Civil Procedure Rules 5.2, that is, the plaintiff seeks the provision of preliminary discovery. At 1(a), the summons specifically seeks an unredacted copy of the text message from the Chief Executive Officer to the Group Head of People and Culture, which was with redaction provided to the plaintiff in that informal discovery of which I have spoken. The whole of that text message as extracted on p 50 of the plaintiff's affidavit reads: "Need to chat to U about a conversation with [redacted] re: Ferzana ... they apparently know each other well ..." 1. Ferzana is the plaintiff's first name. At 1(b) of the summons the plaintiff seeks all other documents that are or have been in the defendant's possession that identify the identity of the person or person(s) who made publications about her to the Chief Executive Officer or the Group Head of People and Culture in the period 14 March 2022 to 16 March 2022 inclusive (the Relevant Persons). 2. In short, prayer 1, firstly, seeks the unredacted copy of that specific communication, but then seeks all documents that identify any person who said anything about the plaintiff to the Chief Executive Officer and/or the Group Head of People and Culture between those dates. Prayers 2, 3 and 4 are facilitative in that they seek pursuant to Uniform Civil Procedure Rules 21.3, verified discovery of any document identifying any person who said anything about the plaintiff in that period. In my opinion, the summons in paras 1(b), 2, 3, and 4, expresses the broadest of fishes rather than achieves the disciplined standards of an appropriately made application for discovery. 3. In The Age Company Limited v Liu [2013] NSWCA 26 at [87] - [89], the Court of Appeal dealt with Uniform Civil Procedure Rules 5.2, and noted that, "Coupled with the definition in Uniform Civil Procedure Rules 5.1, it imposes pre-conditions on the making of an order". The first pre-condition is that the applicant for preliminary discovery desires to commence proceedings against the person whose identity or whereabouts is sought, which desire must be a genuinely held and objectively based desire. The second pre-condition is that the applicant for orders must have made reasonable inquiries. The third pre-condition moves on the words, "for the purpose of commencing proceedings against the person", in Uniform Civil Procedure Rules 5.2(1)(a). 4. The Court of Appeal said those words describe the "yardstick by which the sufficiency of the information in the applicant's possession is assessed". Finally, and one might say, fourthly, but it is a separate matter, the Court of Appeal noted that if those pre-conditions are satisfied, r 5.2(2) gives the Court a discretion whether or not to make the order. In relation to that discretion, that the existence of a prima facie case against the proposed defendant is relevant in the exercise of discretion. 5. Neither party has raised issue with the second of the pre-conditions. As to the first pre-condition, I have referred to the plaintiff's affidavit of her desire, and it follows from that which I have stated, that I am not persuaded that it is objectively based. This is not a statement intending discourtesy to the plaintiff. One can well imagine, although the affidavit evidence is not specific as to it, that the withdrawal of the offer of employment or contract of employment, whichever it be, were it to be formally assessed, may have caused her to also, as I put it earlier, to fall between the cracks and to have also lost the offer of employment with the substantial bank. I do not know. But in any event, there would be significant concern for anybody in the plaintiff's position as to why, having been only days before apparently found to be satisfactory for such high office of employment, to be then rejected. 6. Indeed, under the contract of employment, an issue which I have not determined and I am not required to do, is whether or not even though she had returned the signed contract, the defendant was entitled to continue its inquiries. One can appreciate, as she further states in her affidavit, that the plaintiff's concern includes whether or not the rejection of this employment, were it to be known in the marketplace, or indeed if there are negative things said about her by others, might disadvantage her in future employment. Not more is said, other than that she possesses that concern. But in the absence of identification of the cause of action, indeed in the absence of identification of the substance of anything negative said about her, or any imputation which is defamatory, or any conduct which gives rise to what is loosely called "an employment claim", so far as the case is presently presented to the Court by the plaintiff, I am, I repeat, not satisfied as to the first pre-condition. 7. This leads inevitably to the third pre-condition, and it is the issue I raised with the parties at the commencement of the hearing on Friday 25 November. That is, if the preliminary discovery is sought for the purpose of commencing the proceedings, what would those proceedings be? The information in the applicant's possession with the full argument of her counsel has not answered that for me. I understand that as those words were used in The Age Company Limited v Liu case, the yardstick referred to was more specifically as to whether the specific information was required. But here it follows that the insufficiency of the information from the plaintiff describing what might be the cause of action, makes a sufficiency of knowing the identity of the individuals not more than a fish for the source of further investigation from which to determine whether or not there is some style of cause of action at law available. 8. And then we arrive at the final consideration, being my discretion, which I exercise influenced by that which I have said about what I consider to be the insufficiency of information identifying a cause of action or nature of cause of action in the plaintiff's case, such that, persons who made comment to the defendant should be exposed to investigation. The application is advanced in the absence of the plaintiff identifying the actual publication or substance of the actual publication, that is, what those people said which would give rise to a claim of some sort. Indeed, the plaintiff is unable to achieve this even after having had the informal discovery that I spoke to, of documentation in the possession and control of the defendant since 7 April this year. As a matter of law, the plaintiff is unable to identify, in my opinion, any defamatory meaning conveyed by mere reference to concerns regarding her "style" in the context of leadership for a specific position in the specific environment of the defendant. 9. A matter which is not determinative, but in my opinion has relevance because it provides an illustration of some measure of the absence of identifiable defamatory nature in the impugned comments of the plaintiff's "style", is that the nature of the publications in which the plaintiff considers the comments to be made was the provision of a reference for employment to the person concerned. One would think that if the publication were known, and if it might otherwise then be seen as giving rise to a potential cause of action and defamation, then the speaker would likely be entitled to rely on the defence of qualified privilege both under statute and at common law, and/or an expression of honest opinion. The reason I said this observation is illustrative is that we do not know what the publication was, that the plaintiff cannot say what the publication was, or even broadly the nature of the publication on some objective basis, rather than her subjective fear. One cannot even glimpse whether it was an honest opinion, or otherwise a statement most obviously made under qualified privilege. 10. I have just spoken again of defamation, and I do so without meaning to reduce the significance of my earlier expressed concerns that indeed this application is not so limited, and is conceded by the plaintiff as an investigation to determine what, if any, cause of action might be available including causes of action falling under the almost colloquial expression of an "employment claim" or indeed, a "contract claim". For the reasons given, I dismiss the summons. ORDERS 1. Summons dismissed. 2. Plaintiff pay the defendant's costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 December 2022