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 MARCH 2021
Application for an order requiring a person to attend before the Commission – 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 U2019/8416.
[1] This decision concerns two applications made by Mr Toby Tucker (the Appellant);
one for an order requiring a person to attend before the Fair Work Commission (the
Commission) (the Form F51) and one for an order for the production of documents to the
Commission (the Form F52).
[2] On 23 October 2020 the Appellant filed the Form F51 pursuant to s 590(2)(a) of the
Fair Work Act 2009 (the Act). Simultaneously the Appellant filed a Form F52 application
which has previously been dealt with by the Commission (the Previous F52). The Appellant
also filed a Form F1 making an application for an order to admit further evidence. The
Commission dealt first with the Previous F52 before considering the other two applications.
[3] On 14 December 2020, the Commission issued a Notice to Produce order (the Order)
requiring Maddocks Lawyers (Maddocks) to provide to the Commission 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.”
[4] Maddocks is the legal representative of the State of Victoria (State Revenue Office)
(the Respondent) in this matter.
[2021] FWCFB 1188
DECISION
E AUSTRALIA FairWork Commission
[2021] FWCFB 1188
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[5] A decision1 containing detailed reasons concerning the issuance of the Order was
published on 4 January 2021.
[6] On 18 December 2020, Maddocks produced the materials specified in the Order to the
Commission. Relevantly, the invoice produced is heavily redacted. On 21 December 2020 the
Appellant made submissions asserting that Maddocks had failed or refused to comply with the
Order. The Respondent asserted that the documents produced by Maddocks were all of the
documents in its possession or control which fell within the scope of the Order. The
Respondent also indicated that it opposed the Appellant’s Form F51 and F1 and wished to be
heard in relation to both applications.
[7] On 21 December 2020, the Appellant filed the current F52 application for an order for
the production of documents to the Commission. The Respondent advised that it opposed the
F52 as well and wished to be heard in respect of it.
[8] On 21 January 2021 a Telephone Mention was conducted before the Commission to
deal with the Form F51, F1 and F52 applications. At the mention, the parties consented to
address only the Form F51 and F52 in their submissions – that is, they would be relieved from
dealing with the question as to whether further evidence should be received.2 As such, this
decision will deal only with those two applications.
[9] The Appellant was directed to file and serve his submissions concerning the F52 or
any other amended Form F52 and the F51 by 3 February 2021.3 The Respondent was directed
to file submissions in response by 17 February 2021.4 The Appellant was directed to file any
submissions in reply by 24 February 20201.5
[10] We have received those submissions and taken them into account.
[11] In summary, the Appellant is seeking, pursuant to the Form F51 to have his former
legal representative, Mr James Francis attend before the Commission to give evidence.
Pursuant to the Form F52, the Appellant seeks production of the unredacted invoice (the
invoice) produced by the Respondent on 14 December 2020.
[12] Given that this is an interlocutory matter, the Full Bench does not propose to give
detailed reasons. Therefore, for the short reasons that follow, the Full Bench will issue orders
to the following effect:
Mr Francis will be required to attend the Commission to give evidence. Because Mr
Francis’ evidence is limited, there would not be any utility in having a witness
statement prepared for him. If the Respondent feels there is any prejudice that arises in
the course of the hearing, they’ll be given time to address any such issues that arise.
The Full Bench will contact the parties to set down a hearing date that is convenient to
both parties and Mr Francis.
1 Toby Tucker v State of Victoria (State Revenue Officer) [2021] FWCFB 8.
2 Transcript 21 January 2021 at PN 62 – 64.
3 Directions dated 21 January 2021.
4 Ibid.
5 Ibid.
[2021] FWCFB 1188
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The invoice be provided confidentially to the Full Bench so that it can form a view as
to whether the material is relevant to the proceedings that are subject to the appeal.
Consideration
The Form F51 Application
[13] The jurisdiction of the Commission to make an order requiring a person to attend
before it arises from s 590 of the Act, and in particular s 590(2)(a). The Act states at 590:
“590 Powers of the FWC to Inform Itself
…
590(2)…
(a) by requiring a person to attend before the FWC;”
[14] In Kennedy v Qantas Ground Services Pty Ltd t/a Qantas Ground Services Pty Ltd,
Qantas Group [2018] FWCFB 3847 (‘Kennedy’) a Full Bench of the Commission stated at
[46]:
“In deciding whether or not to issue an order to attend under s.590(2)(a) of the Act, the
Commission will consider whether attendance at the hearing by the person to whom
the order will apply will assist in the resolution of the matter before it.”
[15] Having regard to the various submissions of the parties, the Full Bench is of the view
that Mr Francis should be required to attend before the Commission. Mr Francis’ evidence
will assist in resolving an issue in dispute. The issue in dispute is whether the parties intended
to create binding legal relations to settle the matter which is the subject of this appeal. In
resolving this issue, the Bench is of the view that Mr Francis should be required to attend
before the Commission to give evidence regarding what was said in a telephone conversation
between himself and Ms Courtney Ford (the Respondent’s legal representative). Mr Francis’
evidence will clarify whether the parties intended to create binding legal relations.
[16] Furthermore, it is in the interests of justice that Mr Francis be required to attend before
the Commission. Whilst we note that the Appellant is a qualified lawyer, he was self-
represented in the hearing before Deputy President Young on 5 August 2020 (the August
hearing). From our reading of the transcript of the August hearing, the Appellant appeared
confused as to whether it was incumbent upon the Respondent to call Mr Francis to give
evidence that would corroborate Ms Ford’s evidence.6 Accordingly, notwithstanding that Mr
Francis could have been called at first instance, justice would be served if he were required to
give evidence at a hearing before the Commission.
The Form F52 Application
[17] The jurisdiction of the Commission to make an order for the production of documents
arises from s 590 of the Act, and in particular s 590(2)(c). The Act states at s 590:
“590 Powers of the FWC to Inform Itself
6 Transcript 5 August 2020 at PN467 – 474.
[2021] FWCFB 1188
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…
590(2)…
(c) by requiring a person to provide copies of documents or records, or to provide any
other information to FWC;”
[18] In 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]
[19] It is unclear to the Full Bench as to why the invoice should be produced to the
Appellant. However, having not seen the invoice itself, the Full Bench is unable to determine
on the submissions the utility of the invoice. The safer course is for the material to be
produced to the Full Bench confidentially in order to allow it to form a view as to whether or
not the invoice is relevant to the proceedings that are subject to the appeal.
Conclusion
[20] Accordingly, Mr Francis will be required to attend before the Commission to give
evidence. The Full Bench will contact the parties to set down an appropriate hearing date.
Maddocks is directed to produce the invoice to the Full Bench on a confidential basis.
[21] Orders to this effect will follow.
VICE PRESIDENT
Appearances:
Mr T Tucker on his own behalf
Mr J Forbes of Counsel for the Respondent
Hearing details:
OMMISSION CO THE SEAA THE FAIR WORK
[2021] FWCFB 1188
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2021.
Telephone mention
21 January
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