Anters v JM Group Holdings Pty Ltd & Anor [2022] QIRC 382

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Anters v JM Group Holdings Pty Ltd & Anor [2022] QIRC 382 PARTIES: Anters, Dawn (Complainant) v JM Group Holdings Pty Ltd (First Respondent) & Virginia Sharpe (Second Respondent) CASE NO: AD/2021/39 PROCEEDING: Application in existing proceedings DELIVERED ON: 6 October 2022 HEARING DATES: 4 October 2022 MEMBER: McLennan IC HEARD AT: Brisbane ORDERS: 1. The application is dismissed. 2. A decision on costs is reserved. CATCHWORDS: INDUSTRIAL LAW – DISCRIMINATION – DISCLOSURE – application seeking disclosure – whether documents sought are directly relevant to issue in the proceeding – whether request constitutes fishing expedition – consideration of confidentiality LEGISLATION & OTHER INSTRUMENTS: Anti-Discrimination Act 1991 (Qld) s 124, s 130 -- 1 of 10 -- 2 CASES: Industrial Relations (Tribunals) Rules 2011 (Qld) r 41, r 46 DP World Brisbane Pty Ltd v Rogers & Anor [2014] ICQ 10 Watton v TAFE Queensland (No. 2) [2021] QIRC 299 Weston and Parer v State of Queensland (Department of Justice and Attorney-General) (No. 4) [2016] QIRC 075 Reasons for Decision The Application [1] On 1 August 2022, Mr Dawn Anters (the Complainant) filed a Form 4 Application in existing proceedings (the Application) seeking that the Respondents be ordered to disclose the following: 1) The documents – including briefs, email communications, and the contract with the potential employer – the job advertised by the Respondent … 2) The total number of "junior lawyers" recruited by the Respondent since September 2020 [2] On 5 September 2022, I issued a Directions Order requiring written submissions with respect to the Application. The Complainant also sought leave to make oral submissions and was granted leave to do so on 4 October 2022. [3] During his oral submissions, the Complainant advised that he no longer seeks the first category of documentation, and that the Application now only concerns the second category. [4] I have carefully considered all submissions and have determined not to approach the writing of this Decision by summarising the entirety of those submissions. I will instead refer to key arguments in my consideration. Relevant principles [5] Rule 46 of the Industrial Relations (Tribunals) Rules 2011 (Qld) (the Rules) stipulates the duty of disclosure: (1) If a directions order requiring disclosure of documents is made, a party must disclose any document that— (a) is directly relevant to the proceeding or a matter in issue in the proceeding; and -- 2 of 10 -- 3 (b) is in, or comes into, the possession of the party. (2) A party must act under subrule (1) until the proceeding is concluded or the matter in issue is admitted, withdrawn, struck out or otherwise disposed of. (3) Subrule (1) does not apply to a document in relation to which there is a valid claim to privilege from disclosure. [6] Rule 41(2)(o) of the Rules allows the Commission to make an order requiring disclosure of documents. [7] In Weston and Parer v State of Queensland (Department of Justice and Attorney- General) (No. 4), Industrial Commissioner Fisher outlined (citations omitted): [4] The case law relating to disclosure establishes a number of principles including the following which are relevant to the task confronting the Commission: • A decision of the Commission to order disclosure is a quintessential exercise of discretion. • To be discoverable a document must relate to the question or issues to be decided by the proceedings. • A document is relevant if it contains information which enables the party calling for production of the document to advance its own case or damage the case of their adversary or it is a document which may fairly lead to a train of enquiry which may have either of those consequences. • A party will not be required to produce documents where to do so would be oppressive. • A request for disclosure must not be in the nature of a fishing expedition in the sense that it is an endeavour not to obtain evidence to support a case but to discover whether there is a case at all. • Orders for disclosure should not be made for the purpose of enabling a party to attack credibility.1 [8] In Watton v TAFE Queensland (No. 2), Industrial Commissioner Hartigan concluded (citations omitted): [9] By operation of r 46 of the Tribunals Rules, the obligation in respect of disclosure applies to documents relevant to an allegation in issue in the proceedings. Where disclosure has been made by a party, another party seeking further disclosure must establish that there are documents in the possession or power of the other party which are relevant to an issue in dispute which have not been disclosed by that other party. [10] Mr Watton and the Respondent have each respectively filed a Statement of Facts and Contentions and Response to the Applicant’s Statement of Facts and Contentions. At an earlier hearing, the Commission granted leave for Mr Watton to file an Amended Statement of Facts and Contentions on 28 May 2021 ("ASOFC") and the Respondent to file an Amended Response to the Applicant’s Statement of Facts and Contentions on 25 June 2021 ("RASOFC"). [11] The purpose of the Statement of Facts and Contentions is to allow each party to properly set out and particularise the relevant facts and legal contentions raised in order to place the Commission and other party on notice as to what the parties’ respective case will be. Whilst not formally recognised as such, the Statement of Facts and Contentions have a function akin to pleadings. 1 [2016] QIRC 075. -- 3 of 10 -- 4 [12] Accordingly, when determining whether a document, or category of documents is directly relevant, I will do so by considering whether the document or category of documents is directly relevant to an allegation in issue as identified in the ASOFC and RASOFC. The "directly relevant" test set out in r 46 of the Tribunals Rules is intended to impose a threshold on the process of discovery.2 The Complainant's Statement of Facts and Contentions [9] The Complainant was born and raised in India.3 By 2019, the Complainant had graduated from university with a Bachelor of Laws and had completed legal training to become a lawyer.4 [10] In September 2020, the Complainant responded to an advertisement placed by the First Respondent which sought expressions of interest from lawyers to work in Far North Queensland.5 [11] The Complainant alleges the First Respondent made unlawful requests for information in that he was asked: • to provide a copy of his passport or birth certificate before a telephone appointment with the First Respondent's Recruitment Manager, Ms Virginia Sharpe (the Second Respondent); • his date of birth (an optional question); and • to indicate whether he is an Australian Citizen and to provide proof (e.g., Australian Passport, Full Australian Birth Certificate, Australian Citizenship Certificate or Certificate of Evidence of Citizenship).6 [12] The Complainant alleges that he was "highly offended" and "intimidated" by the questions.7 [13] The Complainant alleges that during a telephone interview with the Second Respondent on 21 September 2020, the Second Respondent asked the Complainant whether he is an Australian citizen "after listening to the Complainant's distinct accent".8 The Complainant alleges the Second Respondent concluded the interview by stating words to the effect that at present the First Respondent "does not have any roles for the Complainant, but law firms in the FNQ are always in need of lawyers to work in family 2 [2021] QIRC 299. 3 Form 85A – Complainant's Statement of Facts and Contentions, 18 November 2021, [1]. 4 Ibid. 5 Ibid [3]-[4]. 6 Ibid [6]-[7]. 7 Ibid [8]. 8 Ibid [9]. -- 4 of 10 -- 5 and employment law matters for which his background and experience will be a good fit."9 [14] On 25 September 2020, an officer of the First Respondent emailed the Complainant stating that "by law [CBC Staff is] required to sight [the Complainant's] passport, Australian Birth Certificate or Australian Citizenship Certificate as confirmation of [his] eligibility to work in Australia".10 In response, the Complainant alleges he provided an undertaking that he is an Australian Citizen and although he disputed that the First Respondent is required to sight his passport prior to commencement of employment, he advised he would provide a copy of his passport in due course.11 [15] On 30 September 2020, the Second Respondent allegedly advised that "due to [CBC Staff's] quality accreditation requirements [she is] not able to search for roles [for the Complainant], unless [she has] confirmed that [the Complainant has] full working rights in Australia" and again requested a copy of the Complainant's passport or birth certificate.12 [16] On 7 October 2020, the Complainant allegedly responded to the Second Respondent's email raising concerns about revealing sensitive information that could potentially lead to unconscious bias, emphasised the undertaking he had given, asked for details about the Respondent's accreditation requirements and requested they consider him for any potential job opportunities based on the information he had provided.13 [17] On 22 October 2020, the Second Respondent allegedly responded by stating that "the job market is slow at the moment, business are struggling, [and] there are limited travel opportunities for new people to enter Cairns" and that they would contact the Complainant "if a role becomes available".14 [18] The Complainant alleges that the First Respondent readvertised "the same positions" in October, November and December 2020 as well as multiple times throughout 2021 but did not consider nor contact the Complainant with respect to the opportunities.15 [19] In light of the above allegations, the Complainant contends: • the Respondents made three unlawful requests for information within the meaning of s 124 of the Anti-Discrimination Act 1991 (Qld) (the AD Act); 9 Ibid [11]. 10 Ibid [12]. 11 Ibid [13]. 12 Ibid [14]. 13 Ibid [15]. 14 Ibid [17]. 15 Ibid [18]. -- 5 of 10 -- 6 • that by not providing the Respondents with a copy of his passport when it was not required, the Complainant refused to do an act that would amount to a contravention of the AD Act within the meaning of s 130(1)(a)(i); and • to the detriment of the Complainant, the Respondents refused to consider him for any opportunities while he was unemployed and actively looking for work – this constitutes victimisation under s 129 of the AD Act.16 Questions to be decided in substantive hearing [20] During a Mention on 13 April 2022 and based on the materials filed as at that date, I indicated, and the parties agreed, that the questions to be decided in the hearing of this matter are: • Whether or not the Respondent(s) made an unlawful request(s) for information, under s 124 of the AD Act? That is, did the Respondent(s) ask the Complainant to supply information on which unlawful discrimination might be based? • Whether or not victimisation occurred within the meaning of s 130(1) of the AD Act? Also, what particular part of s 130(1) is alleged to have been breached by the Respondent(s) in this case? • In the event that one or both questions above are resolved in favour of the Complainant, whether or not the First Respondent is vicariously liable for the actions of the Second Respondent? • In the event of any findings in favour of the Complainant – what relief is appropriate? Submissions [21] The Complainant has sought disclosure of "The total number of "junior lawyers" recruited by the Respondent since September 2020".17 The Complainant indicates that, considering his level of experience, the term "junior lawyers" should include all legal practitioners who had less than two years of experience in the profession and were eligible to hold a restricted practising certificate at the time of selection. [22] In his submissions in reply, the Complainant clarifies that he is seeking: a redacted copy of all "Junior Lawyers" whom recruited by the Respondents. In the alternative, and if there is any confidentiality issue as identified by the Respondents, the Commission makes an order that requires the Respondents to provide, instead of the Complainant, the Commission with the same documents.18 16 Ibid [26]-[27]. 17 Form 4 Application in existing proceedings, 1 September 2022, 3. 18 Complainant's Submissions in Reply, 30 September 2022, 4 [14]. -- 6 of 10 -- 7 [23] The Complainant submits he requires disclosure because:19 • the Complainant applied for the position in 2020; • the Complainant gave an undertaking that he is an Australian Citizen, has full work rights in Australia and would provide a copy of his passport in due course; • despite the undertaking, the First Respondent continued to readvertise the same position multiple times without considering the Complainant; • the information is required to substantiate the claim of victimisation within the meaning of s 130 of the AD Act and to quantify damages that arise from that; • the Complainant alleges the Respondents ignored the Complainant for any employment opportunities after he raised the issue of "unlawful requests for information" and then proceeded to consider and recruit other "Junior Lawyers"; • it is critical to identify whether the Respondents recruited other lawyers after the Complainant had made his application; • "if there is any genuine basis for ignoring the Complainant indefinitely for any employment opportunities, that basis for ignoring will ideally be of a matter of viva voce examination at the hearing. As this ignorance by the Respondents occurred in the past two years, it is unlikely that the Respondents will recall the reasons for, or basis upon, which they have recruited other candidates whilst ignoring the Complainant"; and • having a redacted copy of the job applications of "Junior Lawyers" who were recruited by the Respondents since 2020 will assist the parties and the Commission at the Hearing. [24] The Respondent submits that: • on 30 October 2021, the Complainant wrote to the Industrial Registry requesting "discovery" of similar information from the Respondents to that requested in the Application; • on 12 November 2021, the Commission convened a conference to discuss the Complainant's request and the Commissioner advised that the Complainant's request was not relevant and the Commission would not be making any orders at that time; 19 Form 4 Application in existing proceedings, 1 September 2022, 3; Complainant's Submissions, 8 September 2022, 2 [10]; Complainant's Submissions in Reply, 30 September 2022. -- 7 of 10 -- 8 • there are no relevant "documents" to produce with respect to the Application; • there are no documents relating to "the total number of junior lawyers recruited by the Respondents since 2020" that are required to be disclosed; • if the documents requested are the files of other candidates, then they are of no direct relevance and would also be the subject of obligations of confidentiality; • the Application is an attempt at fishing for inadmissible similar fact evidence; and • the Application is an attempt at interrogatories.20 Consideration [25] Any previous requests for information by the Complainant were not the subject of a formal Form 4 Application in existing proceedings. Therefore, I have not taken those previous, informal requests and associated remarks into consideration in this Decision. [26] The Complainant has seemingly shifted the order he seeks. In the Application, the Complainant seeks "The total number of "junior lawyers" recruited by the Respondent since September 2020" which on its plain and ordinary meaning indicates the Complainant is seeking a number – i.e., an answer to his question. The Complainant subsequently amended the wording of his request, indicating he seeks redacted copies of the job applications of those "Junior Lawyers". [27] In requesting "the total number" of junior lawyers, the Complainant is effectively asking - how many junior lawyers did the Respondents recruit since September 2020? As I found in Habibi Arehjan v Journeaux, "By definition, an 'answer to a question' is not a document in existence."21 As the answer to the Complainant's question is not a 'document', I cannot make an order requiring disclosure under r 41(2)(o) of the Rules. [28] With respect to the Complainant's altered request for the redacted job applications of those "Junior Lawyers", I need to consider whether such documentation is relevant to whether or not victimisation occurred within the meaning of s 130(1) of the AD Act. [29] It appears from the Complainant's Statement of Facts and Contentions that he is arguing that victimisation occurred under s 130(1)(a)(i) of the AD Act. Under that provision, victimisation will happen if a person (the respondent) does an act, or threatens to do an act, to the detriment of another person (the complainant) because the complainant refused to do an act that would amount to a contravention of the AD Act. 20 Respondents' Submissions, 13 September 2022. 21 [2020] QIRC 041, 3 [7]. -- 8 of 10 -- 9 [30] The Complainant submits he refused to do an act that would amount to a contravention of the AD Act when he did not provide the Respondents with a copy of his passport. The Complainant submits that to his detriment, the Respondents consequently refused to consider him for any job opportunities. [31] The Complainant has not satisfied me that redacted job applications are relevant to the question of whether or not victimisation occurred and by extension, quantification of damages. My reasons follow. [32] It is unclear on the submissions before me why information concerning other applicants who were successfully recruited is directly relevant to an issue in this proceeding. The Complainant submits that despite him giving an undertaking with respect to providing his passport, the First Respondent did not consider the Complainant for job opportunities. The Complainant has not convinced me that evidence of others being recruited supports his contention that he was not considered. [33] The Respondents allege that the Second Respondent confirmed in writing that, "If a role becomes available that suits your experience then we will make contact with you."22 It may very well be the case that the Complainant was considered but was not suitable and therefore not put forward and therefore not successful. Evidence of others being recruited does not tend to show that the Complainant was disregarded and by extension, nor does it tend to show that he was disregarded because he did not provide a copy of his passport. The Complainant's request for disclosure can be likened more to a fishing expedition in that it appears the Complainant is endeavouring to discover whether he has a case rather than to acquire relevant evidence that would support his position. That is not acceptable. [34] Job applications of recruited junior lawyers are not documentation that would tend to prove or disprove whether victimisation occurred and will therefore not materially affect my assessment of that question to be decided. By extension, that documentation is not relevant to the assessment of damages. [35] The Complainant may question the Respondents about whether he was considered for employment opportunities at the hearing of this matter and if not, why he was not considered. That is the more appropriate course in my view. [36] With respect to issues of confidentiality, Martin J said in DP World Brisbane Pty Ltd v Rogers & Anor (citations omitted) (emphasis added): The mere claim that a document to be produced is confidential is not a valid objection to its production. Much of what is disclosed to another party in court or tribunal proceedings of one kind or another may well be confidential. It has been held that where this is the case, "the risk to the confidentiality of the information must be tolerated in the interest of the administration of justice". Where specific issues of privacy or a heightened concern for commercial confidentiality, for 22 Respondents' Outline of Argument, 29 March 2022, [29]. -- 9 of 10 -- 10 example, arise, arrangements may be made to ensure that the disclosure of material and information that is made does not go beyond what is strictly necessary in the circumstances. What has been said with regard to confidential information might equally be said to apply in the case of personal information that might in other circumstances be protected by privacy legislation. Accordingly, the mere fact that information to be produced might include "private" information, however defined, is an insufficient ground in law to justify the setting aside of a Notice or to issue a Notice.23 [37] In my view, the Respondents are required to provide documents if they are directly relevant. The Respondents are not entitled to remove or redact parts of documents of their own volition that they consider to be unduly sensitive, private or confidential. The requirements for disclosure in proceedings overbear those other requirements, in part because documents disclosed in the course of litigation are already subject to various protections. Notwithstanding the above, I am not satisfied with the Complainant's submission that the documents are relevant to this proceeding - there simply has not been enough information or explanation provided to support such a contention. [38] The onus is on the Complainant to show why a requested document is directly relevant – he has not done so. Therefore, I am not convinced that an order for disclosure should be made in this instance. Conclusion [39] The Complainant has not satisfactorily explained the direct relevance of the documentation sought and I have instead formed the view that the request constitutes an impermissible fishing expedition. On that basis, an order for disclosure is inappropriate in the circumstances and the Application is dismissed. [40] A decision on costs is reserved. [41] I order accordingly. Orders: 1. The application is dismissed. 2. A decision on costs is reserved. 23 [2014] ICQ 010, [18] – [20]. -- 10 of 10 --