Applicants denied access to payroll system in Merivale underpayments class action

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This judgment concerned an interlocutory application for discovery of employment information of the lead applicant and each of the ~13,500 class members over a six-year period. The class members are hospitality workers for the respondent, commonly known as Merivale. The applicant sought orders for the appointment of an independent expert to access the respondent’s electronic systems to extract the employment information sought.

Justice Thawley noted that a principal reason for the application was to assist in resolution of the dispute through mediation, by providing the means to quantify aggregate loss. His Honour accepted that it is within the power of the court to make an order in aid of mediation “but there must be good reason for doing so” (at [9]).

His Honour rejected the application for the following reasons:

• a) The proposal was an invasive procedure that required the interrogation of information beyond what was necessary, including commercially sensitive information.

• b) The proposal would require implementation of a number of protocols to meet various obligations including obligations pertaining to personal information under the Privacy Act 1988 (Cth). The cost or delay caused by this was not addressed in the applicant’s evidence.

• c) The process was likely to be expensive and take 6 to 9 months to complete. It was also likely to require the respondent to go to considerable efforts to: develop appropriate protocols before granting access; provide training and assistance to the independent expert in using the systems; investigate how to provide access to dormant computer systems; and to assist the expert to make assumptions as to the availability of certain records. It was estimated that it would take 6,750 hours to provide information related to four of the categories sought because it would require interrogation of each of the class member’s employment files.

• d) The efforts were not certain to provide accurate results as employees did not consistently clock on or off on their shifts. Thus, the hours worked by employees would not necessarily be represented in the information obtained. His Honour opined that “it would be an unfortunate use of time and resources to embark on a procedure which was not shown at the outset to be likely to give a reasonably reliable result” (at [15]).

The respondent had offered to provide certain information prior to the application. His Honour said that should be provided and the applicant may then seek further information that would assist in mediation.

Boulos v M.R.V.L Investments Pty Ltd (No 3) [2022] FCA 307

Federal Court of Australia, Thawley J,
29 March 2022

Applicant’s Solicitors: Adero Law;
Respondent’s Solicitors: Johnson Winter & Slattery;
Applicant’s Funder: N/A 

Austlii Link: Available here

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