1
Fair Work Act 2009
s.604—Appeal of decision
Toby Tucker
v
State of Victoria (State Revenue Office)
(C2020/7705)
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT CROSS
COMMISSIONER YILMAZ
SYDNEY, 4 JANUARY 2021
Admission of new evidence – application for an order for the production of documents to the
Commission – appeal against decision [2020] FWC 5252 of Deputy President Young at
Melbourne on 30 September 2020 in matter number U2019/8416.
[1] This decision concerns a Notice to Produce order (Order) made by the Full Bench on
14 December 2020 following an application made by Mr Toby Tucker (the Appellant) for an
order for the production of documents to the Commission (Form F52). On 15 December 2020,
the Appellant requested that the Full Bench publish detailed reasons concerning the issuance
of the Order.
[2] On 15 October 2020, Mr Toby Tucker (the Appellant) lodged an appeal under s 604 of
the Fair Work Act 2009 (Cth) (the Act) against a Decision1 of Deputy President Young
(Deputy President) issued on 30 September 2020. The Commission issued a decision on 26
November 2020 granting the State of Victoria (State Revenue Office) (the Respondent)
permission to be legally represented at the hearing before us.2
[3] The Decision dealt with an application filed by the Respondent to dismiss the
Appellant’s application for an unfair dismissal remedy pursuant to s 399A(1)(c) of the Act. In
the Decision, the Deputy President was satisfied that the Appellant’s application had no
reasonable prospects of success and therefore dismissed the Appellant’s application pursuant
to s 578(1)(c) of the Act.
[4] The Appellant filed submissions in support of the Form F52 on 4 December 2020. The
Respondent made submissions on 11 December 2020 opposing the Form 52.
[5] In support of the Form F52, the Appellant submitted:
1 Toby Tucker v State of Victoria (State Revenue Office) [2020] FWC 5252.
2 Toby Tucker v State of Victoria (State Revenue Office) [2020] FWCFB 6354.
[2021] FWCFB 8
DECISION
E AUSTRALIA FairWork Commission
[2021] FWCFB 8
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the Full Bench should infer that the production of the requested documents would
not have assisted the Respondent’s case;
the documents requested will impugn the accuracy of Ms Ford’s evidence; and
the Respondent has already waived privilege for the documents requested.
[6] The Respondent objected to the Form F52 on the following grounds:
there is no new evidence which impugns Ms Ford’s evidence;
the Respondent has not waived client legal privilege; and
the Appellant’s application to rely on the produced documents on appeal has no
prospects of success.
Relevant legislative provisions and principles
[7] By filing the F52 Form, the Commission is required to provide permission for the
Appellant to adduce new evidence3. The relevant principles concerning admitting new
evidence in an appeal were helpfully summarised by a Full Bench of the Commission in C
Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149:
“[21] The usual principles for the admission of new evidence in an appeal, set out in
numerous decisions of the Commission, apply the approach in Akins v National
Australia Bank. They are, in summary, that first it must be shown that the evidence
could not have been obtained with reasonable diligence for use at first instance;
secondly, the evidence must be such that there is a high degree of probability that there
would have been a different outcome; and, thirdly, the evidence must be credible.
[22] As noted by the Full Bench in Harvey v Australian Injecting & Illicit Drug Users’
League, an “appeal bench would not usually admit evidence which could have been
called at first instance. That approach is grounded in an important policy
consideration, namely, that an appeal should not be an opportunity for parties to
remedy avoidable deficiencies in the evidence” adduced in the proceedings.” [citations
omitted]
[8] Furthermore, the Form F52 was made under s 590 of the Act, which relevantly
provides as follows:
“(1) The FWC may, except as provided by this Act, inform itself in relation to any
matter before it in such manner as it considers appropriate.
(2) Without limiting subsection (1), the FWC may inform itself in the following
ways:
…
3 Fair Work Act 2009 (Cth), s 607(2)(a).
[2021] FWCFB 8
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(c) by requiring a person to provide copies of documents or records, or to
provide any other information to the FWC.”
[9] The Fair Work Commission Rules 2013, provide that a party in a matter before the
Commission may, by lodging a draft order, request that the Commission inform itself in
relation to the matter, by issuing an order requiring a person provide copies of documents or
any other information to the Commission.
[10] In Kennedy v Qantas Ground Services Pty Ltd t/a Qantas Ground Services Pty Ltd,
Qantas Group [2018] FWCFB 3847 (‘Kennedy’), the Full Bench set out the principles
applying to the issue of orders for production under s 590(2)(c) of the Act at [23]:
“The power conferred by s.590(2)(c) is a discretionary one to be exercised for the
purpose of the Commission informing itself as to a matter before it. The Commission
will be guided in the exercise of its discretion by the practice followed by courts in
civil proceedings when issuing subpoenas. The documents sought must have apparent
relevance to the issues in the proceedings. Access to the documents sought must be for
the purpose of supporting a case which is intended to be advanced, not to explore if
there is a supportable basis for a case that might potentially be advanced. The
documents required to be produced must be described with sufficient particularity, and
the burden of producing them must not be oppressive.” [footnotes omitted]
Notice to Produce to Maddocks Lawyers
[11] In our Order, we directed Maddocks Lawyers (the Respondent’s representatives) to
produce the following documents:
“1. The invoice/s referred to in the oral evidence of Courtney Jayne Ford at Ts PN-183.
2. The file note/s referred to in the oral evidence of Courtney Jayne Ford at Ts PN-
156.
3. Any other documents or communications referring or relating to the phone call
referred to in the oral evidence of Courtney Jayne Ford at Ts PN-144.”
Consideration
[12] We note that in some circumstances the principles set out in C Ozsoy v Monstamac
Industries Pty Ltd [2014] FWCFB 2149 concerning the admission of new evidence on appeal
have not been strictly applied,4 and we are satisfied in the circumstances before us that a
departure from such principles is justified.
[13] Having regard to the various submissions of the parties, the Full Bench is of the view
that the documents listed in the Form F52 ought be produced on two bases. First, the
production of such documents would assist in the determination of the appeal. On appeal, the
Appellant contends that the Deputy President erred in finding that the parties intended to
create binding relations to settle the proceeding on 13 November 2019. In resolving this
question, the Full Bench is of the view that documentation surrounding the telephone
4 J.J. Richards & Sons Pty Ltd v Transport Workers' Union of Australia [2010] FWAFB 9963, [95].
[2021] FWCFB 8
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conversation between Mr Francis (the Appellant’s former legal representative) and Ms Ford
(the Respondent’s legal representative) (Telephone Conversation) will assist in ascertaining
whether the parties intended to create binding legal relations. Contrary to what is contended
by the Respondent, the Full Bench does not accept that a conversation between the legal
representatives of the two parties would be subject to legal professional privilege.
[14] Second, it is in the interests of justice that the documentation is produced. Whilst we
note that the Appellant is a qualified lawyer, he was self-represented in the hearing before the
Deputy President on 5 August 2020 (August hearing). From our reading of the transcript of
the August hearing, the Appellant appeared to misunderstand whether documentary evidence
surrounding the Telephone Conversation would be subject to legal professional privilege. In
such circumstances, the Appellant appeared confused about whether it was permissible to
formally press for production of the documents or whether it was incumbent upon the
Respondent to produce such evidence to corroborate the evidence of Ms Ford. Accordingly,
notwithstanding that the evidence was able to be produced at first instance, justice would be
served if the requested documentation is made available for the appeal proceedings.
[15] Having regard to s 590 of the Act and the principles enunciated in Kennedy, the
documents required to be produced in the Form F52 were done so with sufficient
particularity. Furthermore, we do not consider that the production of such documents would
be oppressive to the Respondent; it is accepted by the Respondent that the documents exist.
Conclusion
[16] Accordingly, Maddocks Lawyers is directed to produce the documents referred to in
the aforesaid Order.
VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR725943
THE FAIR WORK NOISS THE SEAA
