WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00926

DELIVERED : THURSDAY, 23 November 2023

FILE NO. : B 28 OF 2023 and U 28 of 2023

Applicant

AND

City of Karratha

Respondent

CatchWords : Application for discovery – Whether documents are relevant to the matters to be heard and determined at the hearing – Whether an order for discovery should be refused because it is unnecessary and oppressive – Principles applied – Order issued

Legislation : Industrial Relations Act 1979 (WA), s 27(1)(o)     

Result : Discovery order issued

Representation:

Applicant : Mr M Cox (of counsel)

Respondent : Mr N Ellery (of counsel)

Cases referred to in reasons:

Agnew v Prisoners Review Board [2012] WASC 47

Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch v The Western Australian Hotels and Hospitality Association Incorporated and Burswood Resort Hotel & Others (1995) 75 WAIG 1801

Concut Pty Ltd v Worrell [2000] HCA 64

Cosentino v Director General, Department of Education [2022] WAIRC 00298; (2022) 102 WAIG 475 

Cox v Corruption and Crime Commission [2008] WASCA 199

Ellis v The Grand Lodge of WA of Antient Free and Accepted Masons Incorporated and others (1999) 79 WAIG 1736

Fairfax Media Publications Pty Ltd v West Australian Rugby Union Inc [2008] WASCA 123

Fenn v The Australian Nursing Federation, Industrial Union of Workers Perth and Ors [2022] WAIRC 00795; (2022) 102 WAIG 1577

Hancock Prospecting Pty Ltd v WorkSafe Western Australia Commissioner [2022] WAIRC 00639; (2022) 102 WAIG 1270

Hutchinson v Department of Health, WA Country Health Service, South West Region [2020] WAIRC 00392; (2020) WAIG 1264

Irwin v Director General, Department of Health [2021] WAIRC 00468

Millward v Chief Executive, North Metropolitan Health Service [2021] WAIRC 00152; (2021) 101 WAIG 414 

MSK v The State of Western Australia [2022] WASCA 55

Pisconeri v Laurens & Munns incorporating Munns Nominees Pty Ltd and George Laurens Pty Ltd (1999) 79 WAIG 3187

The Registrar, Western Australian Industrial Relations Commission v Reah and The Registrar, Western Australian Industrial Relations Commission v Australian Nursing Federation, Industrial Union of Workers Perth [2023] WAIRC 00083; (2023) 103 WAIG 198

Reasons for Decision

Background

1         On 31 May 2023, the applicant (Mr Trestrail) filed:

(a) A Form 2 – Unfair Dismissal Application (UFD claim) against his former employer, the City of Karratha (City), claiming unfair dismissal from his position as Director Corporate and Legal Services on 23 May 2023.

(b) A Form 3 – Contractual Benefit Claim (DCB claim) against the City, claiming a denied contractual benefit of $245,419 under clause 11.2 ‘Termination by the City at will’ of his written contract of employment made in April 2022.

2         On 14 August 2023, I issued Directions ([2023] WAIRC 00689; [2023] WAIRC 00690) for the UFD claim and the DCB claim to be listed and heard together, on 15 November 2023 and 16 November 2023.

3         On 3 November 2023, the City filed a Form 1A – Multipurpose Form requesting discovery, production or inspection of documents (Application).

4         On 6 November 2023, I issued notices of hearing listing the Application for hearing on 7 November 2023.

5         The hearing of the Application was urgent. At the time the Application was heard and determined, the hearing of the UFD and DCB claims were listed to commence within eight days.

6         In the circumstances, having heard the Application, I pronounced orders on 7 November 2023, with reasons to follow.

7         These are my written reasons.

Principles

8         Section 27(1)(o) of the Industrial Relations Act 1979 (WA) (Act) states: (emphasis added)

27. Powers of Commission

(1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it –

…

(o) make such orders as may be just with respect to any interlocutory proceedings to be taken before the hearing of any matter, the costs of those proceedings, the issues to be submitted to the Commission, the persons to be served with notice of proceedings, delivery of particulars of the claims of all parties, admissions, discovery, inspection, or production of documents, inspection or production of property, examination of witnesses, and the place and mode of hearing; and

9         The principles in relation to discovery in this jurisdiction are oft cited.

10      The Full Bench outlined the principles for general discovery in Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch v The Western Australian Hotels and Hospitality Association Incorporated and Burswood Resort Hotel & Others (1995) 75 WAIG 1801 (Burswood) at 1805:

GENERAL DISCOVERY

The purpose of documentary discovery is to provide each party to an action with access before trial to the relevant documents in the hands of his opponent, so avoiding trial by ambush, saving costs and encouraging settlement in proper cases.

The first stage of the process, which is properly termed “discovery”, is the delivery of a list of documents verified by affidavit. The second stage is the production of documents for inspection, where no privilege is claimed in respect of such documents (see Seaman “Civil Procedure Western Australia” at page 6419 et seq).

Documents whose sole effect is to disclose the party’s own case, even if they impeach the opponent’s case, do not relate to matters in question. They should be listed and objection taken to their production (see Brooks and Another v. Prescott and Others [1948] 2 KB 133 (CA) and the cases cited therein, and also Donaldson v. Harris (1973) 4 SASR 299 at 304 and Smith’s Weekly Publishing Co Ltd v. Sunday Times Newspaper Co Ltd [1923] 31 CLR 552 at 556).

The Court has inherent jurisdiction to refuse an order for discovery or production of documents when to do so would be unnecessary and oppressive (our underlining) (see Attorney General v. North Metropolitan Tramways Co [1892] 3 Ch 70 at 73). In our opinion, the Commission, in considering whether to make an order which is just, has the same jurisdiction.

Discovery, production and inspection of documents is not available as of right in this jurisdiction. It is available only if the Commission makes an order under s 27(1)(o) of the Act. S.27(1)(o) reads as follows:–

“(1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it–

…

(o)  make such orders as may be just with respect to any interlocutory proceedings to be taken before the hearing of any matter, the costs of those proceedings the issues to be submitted to the Commission, the persons to be served with notice of proceedings, delivery of particulars of the claims of all parties, admissions, discovery, inspection, or production of documents, inspection or production of property, examination of witnesses, and the place and mode of hearing;”

The Commission may therefore only make an order if such order is just (see Springdale Comfort Pty Ltd t/a Dalfield Homes v. BTA (op cit) (IAC)).

S.26(1)(a) of the Act would not seem to be excluded from operation by the words of s.27(1)(o), but we do not think that it alters the question to be asked and answered under s.27(1)(o).

It is for the applicant, for an order under s.27(1)(o), to establish that it is just for such an order to be made. The expression “just” means “right and fair, having reasonable and adequate grounds to support it, well‑founded and conformable to a standard of what is proper and right” (see Loxton v. Ryan [1921] State Reports (Qld) 79 at 84 and 88 per Lukin J). Perhaps more appositely in Smith's Weekly Publishing Co Ltd v. Sunday Times Newspaper Co Ltd (op cit), which was a case relating to discovery of documents, Isaacs and Rich JJ at page 562 held that “just” means “just according to law”.

In New South Wales, too, although discovery is allowed as of right in proceedings where there are pleadings, except in proceedings for damages for death or personal injury, leave, is necessary, and similar questions arise as those which arise under s.27(1)(o). The discretion will allow discovery in actions for damages for death or personal injury if based on the test of whether it is necessary for a fair trial of proceedings to make such an order (see Percy v. General Motors-Holden’s Pty Ltd (1975) 1 NSWLR 289).

Discovery in civil proceedings is confined to what is in issue on the pleadings (see Mulley and Another v. Manifold [1959] 103 CLR 341 and The Wellcome Foundation Ltd v. V R Laboratories (Aust) Pty Ltd [1980‑1981] 148 CLR 262).

11      Burswood is cited in Pisconeri v Laurens & Munns incorporating Munns Nominees Pty Ltd and George Laurens Pty Ltd (1999) 79 WAIG 3187 at 3193, Hutchinson v Department of Health, WA Country Health Service, South West Region [2020] WAIRC 00392; (2020) WAIG 1264 [7]; Millward v Chief Executive, North Metropolitan Health Service [2021] WAIRC 00152; (2021) 101 WAIG 414 [7], Irwin v Director General, Department of Health [2021] WAIRC 00468; (2021) 101 WAIG 1225 [12], Cosentino v Director General, Department of Education [2022] WAIRC 00298; (2022) 102 WAIG 475 [9], Fenn v The Australian Nursing Federation, Industrial Union of Workers Perth and Ors [2022] WAIRC 00795; (2022) 102 WAIG 1577 (Fenn) [7], and most recently in The Registrar, Western Australian Industrial Relations Commission v Reah and The Registrar, Western Australian Industrial Relations Commission v Australian Nursing Federation, Industrial Union of Workers Perth [2023] WAIRC 00083; (2023) 103 WAIG 198 (Reah) [11].

12      Commissioner Kenner, as he then was, outlined the principles for specific discovery in Ellis v The Grand Lodge of WA of Antient Free and Accepted Masons Incorporated and others (1998) 79 WAIG 1736 (Ellis) at 1736-1737:

Relevant Principles Regarding Discovery

In the context of discussing the relevant principles, it should be observed that these applications are not for a general order for discovery of documents. As noted above, the parties by consent have already provided discovery to one another by way of informal list. The present proceedings relate to applications for further and better discovery of particular documents or classes of documents. However, notwithstanding this, in my opinion, the relevant principles in this jurisdiction applicable to an application for general discovery pursuant to s 27(1)(o) of the Act apply. Discovery is not available as of right in this jurisdiction and it is for a party making an application for an order pursuant to s 27(1)(o) to establish that it would be just for such an order to be made: ALHMWU v Burswood Resort Management (Ltd) (1995) 75 WAIG 1801. In Burswood (supra) it was observed at 1805–

“The Commission may therefore only make an order if such order is just (see Springdale Comfort Pty Ltd t/a Dalfield Homes v BTA (op cit)(IAC)).

s 26(1)(a) of the Act would not seem to be excluded from operation by the words of s 27 (1)(o) but we do not think it alters the questions to be asked and answered under s 27(1)(o).

It is for the applicant for an order under s 27(1)(o), to establish that is just for such an order to be made. The expression “just” means “right and fair, having reasonable and adequate grounds to support it, well‑founded and conformable to a standard of what is proper and right”. See Loxton v Ryan (1921) State Reports (Qld) 79 at 84, 88 per Lukin J”. Perhaps more appositely in Smith’s Weekly Publishing Co Ltd v Sunday Times Newspaper Co Ltd (op cit), which was a case relating to discovery of documents, Isaacs and Rich JJ at page 562 held that “just” means “just according to law”.

In the event that the discretion to order discovery is exercised, general principles require the provision by one party to the other of a list of documents, which may be verified by affidavit, which are or have been in a party’s possession, custody or power relating to any matter in question in the proceedings. A classic statement as to whether a document relates to a matter in question, is contained in the judgment of Brett LJ in Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 where he observed at 63–

“It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words “either directly or indirectly” because, as it seems to me, a document can properly said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences”.

The case of Board v Thomas Hedley & Co Ltd (1951) 2 All ER 431 is authority for the proposition that the net is to be cast broadly in relation to determining what documents are discoverable based upon the matters in question in the action. To determine whether a document may fairly lead to a train of inquiry relevant to a matter in question, regard is to be had to the pleadings in civil litigation. In this case, regard should be had to the particulars of claim and the amended notice of answer and counter proposal: Mulley v Manifold (1959) 103 CLR 341 at 345.

13      Ellis is cited in Fenn [7] and in Reah [10].

The City’s contentions

14      The Application outlines the urgent order sought by the City:

By 7 November 2023, the Applicant is to produce for inspection and discovery by the Respondent, all “Remuneration Documents”.

For the purpose of this order, “Remuneration Documents” are all written representations or statements made, or records provided, by the Applicant (or on his behalf, such as by a legal representative) in connection with the Applicant’s divorce and family law proceedings under the Family Law Act 1975 (Cth), that in any way list, describe, define or identify the remuneration (including salary) he received from the Respondent (Remuneration Documents).”

15      The Application states:

(a) The Remuneration Documents are relevant to the issues in the proceedings.

(b) Mr Trestrail’s remuneration from the City was likely discussed or disclosed in his divorce proceedings, suggesting a possible motive and explanation for the establishment of the Pay Banking Arrangement, which is at issue in the UFD and DCB claims.

(c) The Remuneration Documents may also be relevant to Mr Trestrail’s credibility.

(d) The City’s CEO, Ms Miltrup’s witness statement refers to Mr Trestrail’s divorce proceedings: [62]-[64], [69].

(e) Mr Trestrail’s witness statement refers to ‘speculative comments about my divorce and my motivations with respect to the Pay Banking Arrangement’: [46].

(f) The Remuneration Documents should be redacted to exclude personal information. Multiple copies or versions of the same document are not required. Documents subject to legal professional privilege are not sought.

(g) The City first sought informal discovery of the Remuneration Documents on 18 October 2023.

(h) The Remuneration Documents are in Mr Trestrail’s possession, custody or control. They are not numerous or onerous to produce.

(i) The City’s request is ‘just’. The City has reasonable and adequate grounds to support its request, which is well founded and conformable to the standard of what is proper and right.

(j) The Remuneration Documents are necessary for a fair hearing.

16      At the hearing, the City’s counsel submitted:

(a) Whilst the evidence of witnesses is yet to be tested at the hearing, the outlines of witness evidence inform the Commission of what is relevant.

(b) Ms Miltrup’s outline of evidence [69] states:

In the Allegations Meeting, Mr Trestrail outlined all of the reasons why, in his view, the Pay Banking arrangement was not a problem. As part of this meeting, Mr Trestrail, of his own initiative, volunteered the fact that he was going through a divorce and explained his view that the $20,000 deferred by the Pay Banking arrangement was immaterial in a divorce proceeding worth over $2,000,000. The divorce had not been mentioned by either party at this point and I interpreted this as an acknowledgement from Mr Trestrail that the divorce was a legitimate motivation to ‘hide’ assets or income.

(c) In this excerpt, Ms Miltrup states that Mr Trestrail raised his divorce proceedings during the disciplinary process leading to his dismissal. This makes the family court disclosures relevant. They may explain a motivation for the Pay Banking Arrangement.

(d) Mr Trestrail’s divorce proceedings were an issue he raised on his own initiative. They did not come about through a separate enquiry commenced or instigated by the City.

(e) The City has no further knowledge of Mr Trestrail’s divorce proceedings. The City did not make any requests for Mr Trestrail to provide the documents it is now seeking during his employment. It would have been unusual for the City to have made such a request as part of the disciplinary matter. Further, the City did not rely on Mr Trestrail’s family court disclosures in the reasons for dismissal.

(f)  However, the City is entitled to rely upon information or matters that come to light after the dismissal to justify a dismissal: Concut Pty Ltd v Worrell [2000] HCA 64 (Concut).

(g) Mr Trestrail’s family court disclosures are relevant because it potentially explains his motivation for entering into the Pay Banking Arrangement. The disclosures may relate to Mr Trestrail’s credibility. In these matters, Mr Trestrail’s credibility is directly at issue and will be contested at the hearing.

(h) Mr Trestrail seeks reinstatement. Therefore, the family court disclosures are relevant to the appropriateness of a reinstatement order. The disclosures are relevant to whether Mr Trestrail deliberately misled the City, and/or another party about the remuneration he received from the City, as he was in a senior executive role where a high degree of trust and confidence was to be expected.

(i) The family court disclosures may damage Mr Trestrail’s case, or they may advance the City’s position. Therefore, they are directly relevant.

(j) The request for discovery is not unduly onerous, unreasonable or oppressive for the following reasons:

(i) The request was first made in correspondence on 18 October 2023.

(ii) The scope of the request is unlikely to be very onerous, likely comprising only a small number of documents. 

(iii) The request is deliberately narrow and confined in scope, seeking only the documents that identify Mr Trestrail’s remuneration from the City. All other information, including personal information, falls outside of the request and is not sought or could be redacted.

(iv) Multiple documents containing identical information are not requested.

(k) From the extent to which Mr Trestrail has gone to resist the Application, by preparing a written outline of submissions and an affidavit, the Commission should infer that the family court disclosures are likely to contain something relevant.

(l) Mr Trestrail’s argument that the family court disclosures are irrelevant because they were made after the Pay Banking Arrangement ceased is unsustainable. Mr Trestrail’s disclosures of his remuneration from the City during the period of the Pay Banking Arrangement, and during his employment with the City, are relevant. 

Mr Trestrail’s evidence and contentions

17      On 6 November 2023, Mr Trestrail deposed an affidavit, stating:

(a) His divorce proceedings formally commenced after the Pay Banking Arrangement ceased in September 2021. Although he and his wife had previously discussed divorce and property division, his financial documents and information were not exchanged until after the Pay Banking Arrangement ceased.

(b) His payslips dated 1 September 2021 and 15 September 2021 show the Pay Banking Arrangement ceased on or around the end of August 2021.

(c) On 31 December 2021, he emailed his wife attaching draft consent orders. On 3 June 2022, he emailed his wife attaching a draft Application for Consent Orders which was the ‘first disclosure of [his] salary’.

(d) He engaged family law lawyers after receiving their costs agreement and related documents on 4 November 2022.

(e) He opposes disclosing information relating to his divorce proceedings as he considers it as an invasion of his private life and is his personal confidential information.

18      At the hearing, Mr Trestrail’s counsel handed up an outline of submissions, stating:

(a) Mr Trestrail relies on Hancock Prospecting Pty Ltd v WorkSafe Western Australia Commissioner [2022] WAIRC 00639; (2022) 102 WAIG 1270  (Hancock) for the:

(i) Summary of relevant principles: Hancock [7]-[9].

(ii) Questions to be answered in considering an application for discovery: Hancock [10]:

1. do the documents relate to a matter in question, and if so;

2. would it be just to order discovery?

(b) Mr Trestrail objects to the Application on the basis that the Remuneration Documents and the divorce proceedings are not relevant to the UFD and DCB claims.

(c) Mr Trestrail’s motive for entering the Pay Banking Arrangement is not relevant to the issue of whether his conduct amounts to serious misconduct. His motive is not a necessary fact in issue: Cox v Corruption and Crime Commission [2008] WASCA 199 (Cox) [58]-[60].

(d) Even if his motive is relevant, the Pay Banking Arrangement ceased before any disclosure of his remuneration in his divorce proceedings.

(e) His credibility is not at issue in the UFD and DCB claims and therefore the City cannot seek to introduce evidence to undermine his credibility. A document which exclusively evidences the credibility of a party does not relate to ‘a matter in question’ and is not appropriately subject to an order for discovery: Agnew v Prisoners Review Board [2012] WASC 47 (Agnew) [26].

(f) Documents that go exclusively to credibility do not meet the threshold for an order for discovery under s 27(1)(o) of the Act: Fairfax Media Publications Pty Ltd v West Australian Rugby Union Inc [2008] WASCA 123 (Fairfax) [30]. An exception arises if:

(i) The documents relate to both credibility and another relevant purpose or fact in issue; and/or

(ii) The party whose credibility is questioned, has already introduced their credibility in evidence: MSK v The State of Western Australia [2022] WASCA 55 (MSK) [135].

19      At the hearing, Mr Trestrail’s counsel submitted:

(a) The principles applicable to discovery are to prevent an oppressive, intrusive invasion into Mr Trestrail’s privacy on matters that are irrelevant to the matters in dispute.

(b) The City is not entitled to go on a fishing expedition to uncover anything that might be harmful to Mr Trestrail.

(c) Mr Trestrail objects to the discovery of his family court disclosures for three reasons:

(i) The family court disclosures are not relevant to an issue in dispute. They are not relevant to the UFD claim or the DCB claim. His motive for entering into the Pay Banking Arrangement is irrelevant to the issue of whether his conduct amounts to serious misconduct. His conduct is either inherently serious misconduct or it is not. 

(ii) The Pay Banking Arrangement ceased before the family court disclosures. Therefore, the family court disclosures cannot speak to his motive for the Pay Banking Arrangement.

(iii) Documents or evidence that go exclusively to Mr Trestrail’s credibility do not meet the threshold for an order for discovery under s 27(1)(o) of the Act, unless the document relates to both his credibility and another relevant fact in issue and/or Mr Trestrail has already introduced his credibility into evidence: MSK [135].

(d) The City’s purported reason for Mr Trestrail’s summary dismissal is that he committed serious misconduct by entering into the Pay Banking Arrangement while a senior employee. The City suggests that Mr Trestrail’s family court disclosures may show a potential motive and explanation for implementing the Pay Banking Arrangement. While that is entirely speculative, Mr Trestrail’s motive for entering into the Pay Banking Arrangement is not a necessary fact in issue. Entering into the Pay Banking Arrangement must be serious misconduct in and of itself to justify summary dismissal.  

(e) The City relied upon the definition of misconduct in s 4(d) of the Corruption, Crime and Misconduct Act 2003 (WA) (CCM Act). Section 4(d) requires something inherently improper in the conduct. Motivation is not a factor in the elements of misconduct under the CCM Act: Cox [58]-[60].

(f) The City’s reasoning is circular. The City claims the Pay Banking Arrangement was improper because it had a detrimental effect. However, with the Application, the City asserts the Pay Banking Arrangement was improper because of Mr Trestrail’s motive for entering into it.

(g) Section 4(d) requires impropriety in the act itself. Detriment is not a factor. If detriment was necessary, s 4(d) would have included language requiring both impropriety and detriment.

(h) Intent or motive is irrelevant to s 4(d) of the CCM Act.

(i) Mr Trestrail’s motivation on matters outside of his employment is irrelevant. For example, Mr Trestrail is entitled to spend his employment income as he chooses. It is irrelevant to the City.

(j) The City did not put to Mr Trestrail during his employment that it considered the reason he entered the Pay Banking Arrangement was to deceive his wife in their divorce proceedings.

(k) Whilst Concut and other authorities allow the City to rely on subsequently discovered matters or those known at the time but not raised to justify a dismissal, that does not make any matter relevant. The matter must still relate to an issue in dispute.

(l) In any event, the family court disclosures occurred after the Pay Banking Arrangement ceased. Therefore, they cannot shed light on Mr Trestrail’s motivation for entering the Pay Banking Arrangement.

(m) Further, a document which exclusively evidences the credibility of a party does not relate to a matter in question, and therefore, is not appropriate for an order for discovery: Agnew [26].

(n) Mr Trestrail’s outline of witness evidence [46] states:

I have also seen an email of 11 April 2023 from Ms Miltrup to Ms Kelly Nunn, then acting Mayor of the City of Karratha, asking Ms Nunn to be part of the investigation panel. Ms Miltrup forwarded to Ms Nunn her previous email correspondence with Ms Reynolds which included Ms Miltrup’s speculative comments about my divorce and my motivations with respect to the Pay Banking Arrangement as referred to above (see Document 35 of the Agreed Bundle).

(o) In this excerpt, Mr Trestrail refers to Ms Miltrup’s speculative and prejudicial statements to parties she invited to sit on an investigation panel. Her statements do not make Mr Trestrail’s divorce proceedings and motivations for the Pay Banking Arrangement relevant. On the contrary, this passage refers to and makes relevant Ms Miltrup’s motivations.

(p) Ms Miltrup’s suspicions or belief about Mr Trestrail’s conduct does not make the matter she is speculating about relevant, if it is not relevant to a matter in dispute.

(q) Further, when Mr Trestrail’s witness outline [46] is read in context, he is not putting his credibility at issue. Therefore, the City cannot gratuitously raise questions about his credibility.

(r) The City dismissed Mr Trestrail for serious misconduct. Implicitly, the City has questions about his credibility. However, this does not allow the City to raise any matter about Mr Trestrail’s credibility. The matter must be connected with an issue in dispute.

(s) In the UFD claim, the City bears the burden of satisfying the Commission that it had reasonable grounds for its belief that Mr Trestrail engaged in serious misconduct. Matters relating to his employment with the City would be relevant. Matters tangential, such as how Mr Trestrail spends his remuneration from the City, are irrelevant.

(t) In the DCB claim, the City bears the burden of proving objectively that it had grounds for summary dismissal within the meaning of clause 11.3(1) ‘Summary termination’ of the employment contract.

(u) The letter of termination cites clauses 11.3(1)(a) and (c) of the employment contract:

11.3 Termination by the City – Director’s default

(1) Summary termination

The CEO may summarily terminate the employment of the Director before the expiry of the term by notice in writing if –

(a) the Director is guilty of any wilful or grave misconduct or wilful neglect in the performance of the Functions;

…

(c) the Director commits a serious breach of any of the provisions of this Contract; or

(v) While the contract raises the issue of whether Mr Trestrail is guilty of serious misconduct, the contract refers to serious misconduct in Mr Trestrail’s employment. It does not refer to consequences for other parties unrelated to his employment.

(w) If credibility evidence is inadmissible because it is irrelevant to the issue of serious misconduct, it is also inadmissible on the issue of reinstatement. The appropriateness of reinstatement is to be determined by legitimate means according to the admissible evidence relevant to resolving the issues in dispute.

(x) Mr Trestrail objects to discovery of his family court disclosures on the basis that they are oppressive and invasive. They are documents regarding his personal private life.

(y) If the Commission were to issue an order requiring discovery, Mr Trestrail would need until close of business on Thursday, 9 November 2023 to discover the documents sought. Mr Trestrail does not oppose an order on the ground of oppression on the basis that it would delay the hearing listed to commence on 15 November 2023.

City’s contentions in reply

20      In response to Mr Trestrail’s submissions, the City submitted:

(a) The following excerpts from the termination letter directly raise in the UFD and DCB claims the issue of Mr Trestrail’s motivation, justification or explanation for entering the Pay Banking Arrangement. They also directly raise the issue of Mr Trestrail’s credibility:

Throughout the process, the City has formed the view that you have sought to gain an advantage for yourself (tax advantage or otherwise) through an arrangement that is not available to any other employee of the City and was deliberately undocumented. This view is maintained and the City does not accept your justifications for the ‘pay banking’ arrangement.

…

In the City’s view, aspects of your responses throughout the show cause process have been disingenuous and deliberately manipulative.

…

The City has satisfied itself, through its own investigation, that your conduct has caused it to breach your contract of employment and applicable legislation in respect of industrial laws (which the Further Response appears to now concede), shortfalls in PAYG tax, and superannuation payment obligations at various times throughout the period in which you have implemented the ‘pay banking’ arrangement without authorisation.

The City considers that your conduct has fallen short of the conduct required of you under your contract of employment.

…

TERMINATION OF EMPLOYMENT

For all the reasons detailed in the Show Cause Letter and Second Letter, the City has determined to terminate your employment in accordance with clauses 11.3(1)(a) and (c) of your contract of employment, justifying summary termination of employment.

Further, your misconduct amounts to deceit that is incongruent with the implied duties of good faith and fidelity that you owe to the City, particular in your role a ‘senior employee’. Your conduct has also led to the City’s loss of trust and confidence in your ability to effectively perform your role and your disingenuous responses through the show cause process has also contributed to this irreparable position.

(b) Mr Trestrail’s explanation for entering the Pay Banking Arrangement and issues regarding his honesty were matters relied on by the City and raised with Mr Trestrail as reasons for his dismissal.

(c) The termination letter refers to Mr Trestrail being a ‘senior employee’. Therefore, whether he engaged in deceptive conduct is highly relevant to whether the City had a reasonable basis to dismiss him for serious misconduct or whether he is guilty of serious misconduct.

(d) The basis for Mr Trestrail’s case is that he entered the Pay Banking Arrangement for innocent reasons. If it is established that he entered it for reasons of deceit or dishonesty, or to mislead, that is relevant to how his conduct should be characterised and whether or not it is serious misconduct. 

(e) Mr Trestrail addresses his motive in his outline of submissions filed on 25 October 2023 [33]:

In any event, other than by pure speculation on Ms Miltrup’s part, there is no evidence that the applicant has been motivated to improperly benefit himself or cause a detriment to anyone else, and there is no evidence of deceit.

(f) In his outline of submissions, Mr Trestrail submits there is no basis for Ms Miltrup to conclude he was motivated to improperly benefit himself or cause a detriment to someone else, nor is there evidence of deceit. The City submits that there is a basis for this conclusion, and the documents sought are therefore relevant to resolving this issue.

(g) Mr Trestrail raised the issue of his divorce proceedings when questioned about the reasons for entering into the Pay Banking Arrangement. He raised the possibility that his divorce proceedings were an explanation for entering into the Pay Banking Arrangement.

(h) While the issue of Mr Trestrail causing detriment to his wife in divorce proceedings was not raised with him as a basis for the dismissal, the divorce proceedings were discussed, were known, and were understood to be a possible explanation for entering the Pay Banking Arrangement.

(i) Ms Miltrup’s witness outline [62]-[64] states:

62.  During my correspondence with Ms Reynolds, I stated words to the effect that, that Mr Trestrail had been going through a “messy divorce”.

63.  Mr Trestrail has been open to many staff at the City, including myself, that he has been going through a divorce. I formed the view that the divorce had been “messy” as a result of the process being protracted, having been proceeding for over two years.

64.  I referenced a “messy divorce” to Ms Reynolds in an attempt to rationalise and understand the potential motivation for Mr Trestrail implementing the unusual Pay Banking practice, which both myself and Ms Reynolds had not previously encountered in our careers.

(j) The City seeking to understand Mr Trestrail’s motivation for entering the Pay Banking Arrangement was a reasonable line of enquiry during the disciplinary proceedings. It is also a reasonable line of enquiry in the UFD and DCB proceedings.

(k) Where Mr Trestrail raised his divorce proceedings, it is not a fishing expedition for the City to seek discovery of documents that relate to his family court disclosures.

(l) The cases of Fairfax, MSK and Agnew relied upon by Mr Trestrail for the propositions regarding the admissibility of evidence about credibility, are distinguishable as they are Supreme Court and Court of Appeal cases where strict rules of evidence apply. 

(m) In any case, the City does not seek discovery of Mr Trestrail’s family court disclosures solely to attack his credibility.

(n) In response to Mr Trestrail’s objection that discovery is oppressive because it invades his private life, the City only seeks a very limited scope of documents, and set out in the Application the proposed redaction of any material that is personal, confidential, sensitive or private.

(o) Granting the Application would not be oppressive in terms of the cost, time and delay involved with providing discovery, as, depending on the documents discovered, the City would seek to address them by oral submissions at the hearing. This would not delay the hearing.

Consideration

21      Having heard from the parties, and applying the relevant principles, I was satisfied that an order for discovery should be made under s 27(1)(o) of the Act.

22      I was satisfied that it was necessary to make an order for discovery because the family court disclosures are relevant to the UFD and DCB claims, for the following reasons:

(a) The City notified Mr Trestrail through the termination letter that it considered he entered the Pay Banking Arrangement to gain an advantage for himself – a tax advantage or some other advantage.

(b) The City notified Mr Trestrail through the termination letter that it considered his conduct amounted to deceit and was incongruent with the implied duties of good faith and fidelity he owed the City, particularly in his role as a ‘senior employee’.

(c) The alleged deceit is something the City seeks to test at the hearing.

(d) The alleged deceit was raised by Mr Trestrail’s outline of evidence [46] and his outline of written submissions [33], and Ms Miltrup’s outline of evidence [62]-[64], [69].

23      I was satisfied that it would not be oppressive to make an order for discovery, for the following reasons:

(a) Whilst Mr Trestrail objected to the Application on the basis that it was oppressive as it was invasive, he did not submit that discovery would be oppressive in terms of cost and time.

(b) Anything private in the documents was not sought and/or could be redacted.

(c) The parties agreed that discovery would not delay the 2-day hearing listed to commence on 15 November 2023, and therefore, an order for discovery would not be oppressive by causing delay to the efficient determination of the matter.

Conclusion

24      Following the hearing, I issued a Minute of Proposed Order (Minute) on the following terms:

THAT the applicant give discovery by Thursday, 9 November 2023 of:

1.  All written representations or statements made, or records provided by the applicant to his wife in connection with anticipated divorce and family law proceedings, that in any way list, describe or identify the remuneration (including salary) the applicant received from the respondent.

2. All written representations or statements made, or records provided by the applicant (or on his behalf, such as by a legal representative) in the applicant’s divorce and family law proceedings under the Family Law Act 1975 (Cth), that in any way list, describe or identify the remuneration (including salary) the applicant received from the respondent.

25      After hearing from the parties about the Minute, I issued an Order ([2023] WAIRC 00871) on the same terms as the Minute on 8 November 2023.