IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
COMMON LAW DIVISION
EMPLOYMENT AND INDUSTRIAL LIST
S CI 2017 05032

TOBIAS JOHN TUCKER (aka Toby Tucker)	Plaintiff	
		
v   		
		
THE STATE OF VICTORIA 	First Defendant	
		
PAUL BRODERICK (in his capacity as Commissioner of State Revenue)	Second Defendant	

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JUDGE:	Ierodiaconou AsJ	
WHERE HELD:	Melbourne	
DATE OF HEARING:	16 October 2019	
DATE OF RULING:	16 October 2019 (ex tempore; revised)	
CASE MAY BE CITED AS:	Tucker v State of Victoria (Notice to Produce)	
MEDIUM NEUTRAL CITATION:	[2019] VSC 689	

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PRACTICE AND PROCEDURE – Application to set aside Notice to Produce – Notice to Produce served shortly before the final day of trial – Supreme Court (General Civil Procedure Rules) 2015 (Vic) r 35.08 – seven categories listed for production – documents requested lacking relevance or forensic purpose to issues in dispute – Cargill Australia Ltd v Viterra Malt Pty Ltd (No 19) [2018] VSC 798 – Civil Procedure Act 2010 (Vic) – Notice to Produce set wholly aside.

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APPEARANCES:
	Counsel	Solicitors	
The Plaintiff appeared in person			
			
For the Defendant	Mr J Bourke QC with Ms R Preston	Maddocks	

HER HONOUR:
1	This ruling concerns a Notice to Produce served by the plaintiff, Mr Tucker, upon the defendants, and an application to set it aside.  
2	The first defendant is the State of Victoria, Mr Tucker’s former employer.  Mr Tucker worked at the State Revenue Office (‘the SRO’).  The second defendant is Mr Paul Broderick (in his capacity as the Commissioner of State Revenue).  
3	The first defendant filed the summons to set aside the Notice on 15 October 2019.  Although the summons is filed on behalf of the first defendant, for convenience I shall refer to the defendants collectively in this ruling, and refer to them as ‘the State’
Background
4	This application was made and determined ex tempore on the third and final day of the trial.  The background to this trial is set out in a previous ruling concerning a stay application.
Application to set aside
5	The State’s application to set aside the Notice to Produce is supported by an affidavit of Courtney Jayne Ford, solicitor, affirmed on 14 October 2019 (‘the Ford affidavit’).  The Notice to Produce dated 10 October 2019 forms Exhibit ‘CJF‑1’ to the Ford affidavit.  
Applicable principles
6	The Notice to Produce relies on r 35.08 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘the Rules’).  It provides:
Notice to produce documents
(1)	A party to a proceeding may serve on any other party a notice requiring that the other party produce the documents mentioned in the notice on any application in or at the trial of the proceeding.
(2)	Unless the Court otherwise orders, the party on whom the notice is served shall produce on the application or at the trial such of the documents mentioned in the notice –
(a)	as are in that party’s possession, custody or power; and
(b)	which that party does not object to produce on the ground of privilege.
(3)	Where the party on whom the notice is served fails to comply with the notice, the Court may order that the party produce the document or give such directions for the proof of any matter in relation to the document including the contents of the document and its making, delivery or receipt, as it thinks fit.
7	The relevant principles are not in dispute.  They were recently outlined by Elliot J in Cargill Australia Ltd v Viterra Malt Pty Ltd (No 19):  
A party to a proceeding may serve on another party a notice requiring that party to produce the documents mentioned in the notice on any application in, or at the trial of, the proceeding.  
Unless the court otherwise orders, parties who have been served with a notice to produce must produce such of the specified documents as are in their possession, custody or power, save for any claim of privilege.  If a party fails to comply with a notice, the court may order production or give other such directions as it thinks fit.
The considerations to be taken into account in deciding whether to set aside a notice to produce are the same as those that apply to setting aside a subpoena.  
The court must consider a number of factors.  These include whether the party calling on the notice to produce expressly and precisely identifies the legitimate forensic purpose for which access to the documents is sought;  whether the notice to produce is too broad or amounts to a fishing expedition (in which case it should not be permitted);  whether an application for discovery or further and better discovery is more appropriate in the circumstances;  the timing of the notice to produce;  and whether the party seeking production can demonstrate that it is “on the cards” or that there “reasonable possibility” the documents will materially assist the case of the party issuing the subpoena.  
A legitimate forensic purpose will exist where, based on the circumstances of the case, the documentation sought to be produced is not only relevant to the proceeding, but will materially assist in resolving an issue in dispute.  For example, it is not a legitimate forensic purpose if the party seeking production, seeks those documents purely to determine their relevance in the proceeding.
Submissions and Analysis
8	Firstly, I will deal with some global issues.  
9	The State objects to the late service of the Notice to Produce.  It is served after the close of their evidence, in circumstances where an earlier Notice to Produce was served and withdrawn and the classes of documents were not in that Notice, where orders were made on 16 July 2019 for the trial by affidavit and for Mr Tucker’s materials to be due on 6 September 2019, and where many of the documents sought have as their source the affidavit of Darren Joyce dated 19 August 2019.
10	In response, Mr Tucker says, correctly, that r 35.08 does not contain a time limit.  Further, that he needed to review the transcript of oral evidence, which was many hundreds of pages and only made available on 3 October 2019.
11	I accept that the Notice is served very late.  The timing of a Notice to Produce must not be unreasonable.  The late service of the Notice has the potential to jeopardise the close of the trial today.  I do not consider that this is fatal to the Notice.  It is however a factor to take into account in the mix of factors to consider.  
12	Secondly, I must say something about the key issues in dispute.  I refer to my Stay Application Ruling:
This proceeding was commenced prior to the unfair dismissal proceeding.  They relate to two separate issues.  In the unfair dismissal proceeding, the Commission will direct itself to the question of whether or not Mr Tucker’s termination of employment was harsh, unjust or unreasonable.  Here, the question is whether or not the State can succeed in its application for Mr Tucker to pay damages to it following the undertaking of damages that he provided to it.  In return, it undertook not to finalise proposed discipline outcomes (including termination of employment) until determination of the substantive proceeding. 
Whether or not the State should have terminated Mr Tucker’s employment immediately prior to giving its undertaking is not the question here.  The issue will be whether or not it would have terminated his employment.  Even if the question arose as to whether or not it could have terminated his employment at the time of the undertaking or beforehand, it is a different question to that arising before the Commission.  The Commission will be considering the fairness of the termination made after the substantive proceeding and whether it was harsh, unjust or unreasonable.  There is a timing issue.
Mr Tucker concedes the legal issues are different in each proceeding.
13	I reject Mr Tucker’s assertion that the basis for his termination is a core issue in dispute.  It is not in this proceeding.  
14	I reject Mr Tucker’s assertion that whether there was a basis to exclude him from work is a core issue in dispute.  It is not in this proceeding.  One issue in dispute is whether or not the State took steps to mitigate their loss in circumstances where Mr Tucker says he was ready, willing and able to work.  This question will need to be considered in the context of cl 21.7(a)(v) of the Victorian Public Service Enterprise Agreement 2016 (‘VPSEA’), which is the clause pursuant to which the suspension was in effect.  
15	I reject Mr Tucker’s assertion that whether or not the State has come to Court with ‘clean hands’ is a key issue.  Whilst I will need to consider the credibility of witnesses who have given evidence, and the relevant circumstances of the undertakings given, this proceeding is not the vehicle for a wide-ranging inquiry into the conduct of the State or indeed the SRO.  Indeed, this proceeding concerns a discrete and narrow issue — the undertaking as to damages and whether or not Mr Tucker is required to pay damages pursuant to the undertaking he has given.  
16	It would be completely contrary to the overarching purpose of the CPA for this trial to expand beyond those issues.  
17	This is a trial by affidavit.  There are no pleadings.  Considering the parties’ opening submissions, the keys issues are as follows.
Key issues arising from Mr Tucker’s submissions
1.	Given that the SRO entered into the undertaking voluntarily to avoid legal costs of an interlocutory hearing, can it now claim damages from Mr Tucker?
2.	Should the remuneration paid to Mr Tucker be characterised as an ‘avoidable loss’ in circumstances where Mr Tucker:
(a)	says he was ready, willing and able to work during the period of the undertaking?
(b)	says he could have been deployed into another role at the SRO or elsewhere by the State of Victoria;
(c)	says the delays in the investigation and litigation were the SRO’s own doing; and
(d)	was not dismissed immediately.
3.	Mr Tucker says that the State sought to be released from their undertaking by summons made and determined before McDonald J, which was dismissed by orders made in July 2018.  Given this, is the SRO seeking to re-agitate the same issues which have already been determined?
4.	Should the Court accept the evidence that Mr Tucker’s employment would have been terminated in February 2018 but for the undertakings?
5.	Can the SRO claw back payments never directly made to Mr Tucker such as superannuation and taxation payments?
6.	What is the quantum of remuneration paid to Mr Tucker?
Key issues arising from the State’s submissions
1.	What is the loss?
2.	Did the loss flow directly from the undertaking?
3.	Was the payment of remuneration to Mr Tucker a loss that could have been foreseen at the time of the undertaking as to damages?
18	In addition, I have asked the parties some questions about the application of cl 21 of the VPSEA in the context of the suspension and undertaking given.  
19	Turning now to the particular categories in the Notice.
Category 1:
With respect to the taxpayers (taxpayers) identified in the report (report) referred to in paragraph 33 of the affidavit of Darren Gordon Joyce sworn 19 August 2019 (Joyce Affidavit), a copy of all documents and communications recording complaints made by the taxpayers relating to:
a.	[Mr Tucker’s] access and use of the taxpayer information subject of the workplace investigation (investigation) referred to in the report; and
b.	the State Revenue Office’s (SRO) access and use of the taxpayer information subject of the investigation referred to in the report.
20	Mr Tucker says this is relevant because if it transpires no taxpayers have lodged written complaints then no basis to make any allegation of privacy breaches arises.  
21	The State says this category is unmeritorious.
22	There is no forensic purpose for this category.  It is irrelevant.  The merits of the investigation and its findings are not in issue in this proceeding.  Nor is the basis for suspension.
Category 2:
A copy of all documents and communications recording that the taxpayers:
a.	either authorised or did not authorise [Mr Tucker’s] access and use of their records held by the SRO and subject of the investigation; and
b.	either authorised or did not authorise the SRO’s access and use of their records held by the SRO for the purpose of the investigation subject of the report.  
23	Mr Tucker says that it would be an absurd proposition that he could still have been sacked if taxpayers authorised access by him to their records.  
24	The State says this is an attempt to attack the merits of an investigation report by Mr Di Federico.  
25	There is no forensic purpose for this category.  It is irrelevant.  As discussed above, the merits of Mr Tucker’s dismissal are not in dispute here.
Category 3:
A copy of all documents and communications recording the “advice” referred to in the oral evidence of Darren Gordon Joyce of 24 September 2019 (Transcript Reference, p. 81/10) regarding Lisa Klug’s apparent authority to access taxpayer information.  
26	Mr Tucker says there is a live issue as to whether SRO breached taxpayer privacy and there is at least one proceeding on foot against the SRO in VCAT by a taxpayer.  
27	The State says this is irrelevant to this proceeding.  
28	There is no forensic purpose for this category.  It is irrelevant.
Category 4:
A copy of all documents and communications recording payments made by or on behalf of the SRO to the “complainant employee” (Ms M), as referred to in paragraph 18 of the Joyce Affidavit, with respect to the period 1 May 2017 to present.
29	Mr Tucker says a key contested issue in his continuing suspension and each letter from the SRO expressly mentioned Ms M and none make any mention of the eSys investigation within Mr Di Federico’s report.  The Ms M allegations and allegations concerning integrity are key live issues before the Court.  He refers to Mr Joyce’s oral evidence where he denied knowledge that Ms M had departed.  
30	The State says this category concerns documents regarding payments to Ms M.  The investigation into Ms M had been completed and the disciplinary process was already in place at time of the undertakings.  They disagree with this categorisation of the suspension letters. 
31	I refer to my analysis above.  There is no forensic purpose for this category.  It is irrelevant.
Category 5:
A copy of all documents and communications authored by SRO employees, either past or present, which tend to discredit the SRO’s allegations regarding Ms M as set out in the letter of Darren Joyce dated 9 June 2017, exhibited at page 380 of DGJ-1 to the Joyce Affidavit.
32	Mr Tucker says this category goes to statements discrediting the Ms M allegations.  New evidence has come to light regarding the redacted investigation report by Ms Klug.  He says this goes to the ‘clean hands’ aspect of his case.  
33	The State says this is looking for credit issues that may undermine the allegations regarding Ms M and is not relevant. 
34	I refer to my analysis above.  There is no forensic purpose for this category.  It is irrelevant.  
35	I would also add this: had I not set the category aside on that basis, I would have set it aside as being improperly framed because it requires the party from whom the documents are sought to make an evaluative judgment about what constitutes ‘documents and communications […] which tend to discredit’.
Category 6:
A copy of the unredacted report of Lisa Klug including all annexures, as referred to in paragraph 25 of the Joyce Affidavit.
36	Mr Tucker says he needs to have the unredacted report by Ms Klug, and refers to evidence such as that concerning Mr Kerr.  He says there are ‘smoking guns or red herrings that could assist the Court with key issues before it’.  
37	The State says this is a fishing expedition and should be rejected.  
38	I agree.  There is no forensic purpose for this category.  It is irrelevant.
Category 7:
A copy of all documents and communications recording the SRO’s policy and training records provided to [Mr Tucker], as at and up to 9 June 2017, regarding:
a.	what constitutes a ‘business purpose’ for accessing taxpayer information; and 
b.	what constitutes the definition of ‘integrity’ with respect to the following documents identified in the letter of Darren Joyce dated 9 June 2017, referred to in paragraph 19 of the Joyce Affidavit:
i.	the ‘VPS Code of Conduct’;
ii.	the ‘SRO Values and Behaviours’; and
iii.	the ‘Public Administration Act 2004’.
39	Mr Tucker says that this category relates to his evidence denying that he had training on the eSys database and he notes he was subject to cross‑examination about it. 
40	The State says this is vague and concerns what constitutes a business purpose and the definition of integrity.  
41	I agree that the request is vague.  It would require an evaluative judgment by the party from whom the documents are sought.  
42	I will set aside the Notice to Produce in its entirety.
Service of the summons
43	For completeness, I record that Mr Tucker sought that the hearing of the summons be delayed as he had only been served with it at 6.00pm the previous night.  He referred to r 46.05(2) of the Rules that requires service no later than 2pm the previous day.
44	The State pressed for the hearing of the summons.  They said that Mr Tucker had not identified any prejudice in it being heard this day, and that the late service was due to the fact that he did not serve the Notice to Produce until 10 October, and the State needed to obtain instructions.  
45	Pursuant to r 2.04 of the Rules, the Court may dispense with requirements under the Rules.  I will dispense with the requirement in r 46.05(2) that a summons be served no later than 2pm on the previous day.
46	I do so on two bases.  Firstly, Mr Tucker was on notice as to the summons prior to it being issued on 15 October 2019.  On 14 October 2019, he received an email from the State’s solicitors attaching both the Application Form to the Court in respect of the summons and the unsealed summons.  Secondly, the late service of the summons is partly a consequence of Mr Tucker’s late serving of the Notice to Produce, namely on 10 October 2019.  Mr Tucker did not identify any prejudice that he would suffer if the hearing of the summons occurred this day.  It is consistent with the overarching purpose of the CPA to deal with the summons this day.  That is, it is just, efficient, timely, and cost-effective to do so.
Conclusion
47	Pursuant to r 2.04 of the Rules, compliance with r 46.05(2) is dispensed with.
48	Mr Tucker’s Notice to Produce dated 10 October 2019 is set wholly aside.  
49	The costs of, incidental to and occasioned by the first defendant’s summons filed 15 October 2019 are reserved.