AARON Kipa v Caelli Formwork Qld Pty Ltd and Phillip John Olive v Caelli Formwork Qld Pty Ltd and TASVIKA Tshuma v Caelli Formwork Qld Pty Ltd and GARY Stringer v Caelli Formwork Qld Pty Ltd - [2013] FMCA 223

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AARON KIPA v CAELLI FORMWORK QLD PTY LTD & PHILLIP JOHN OLIVE v CAELLI FORMWORK QLD PTY LTD & TASVIKA TSHUMA v CAELLI FORMWORK QLD PTY LTD & GARY STRINGER v CAELLI FORMWORK QLD PTY LTD

[2013] FMCA 223

PRACTICE AND PROCEDURE – Disclosure of documents – descriptions too wide.

Federal Magistrates Act 1999, s.45(1)

Applicant:

AARON KIPA

Respondent:

CAELLI FORMWORK QLD PTY LTD

File Number:

BRG 464 of 2012

Applicant:

PHILLIP JOHN OLIVE

Respondent:

CAELLI FORMWORK QLD PTY LTD

File Number:

BRG 466 of 2012

Applicant:

TASVIKA TSHUMA

Respondent:

CAELLI FORMWORK QLD PTY LTD & ORS

File Number:

BRG 468 of 2012

Applicant:

GARY STRINGER

Respondent:

CAELLI FORMWORK QLD PTY LTD & ORS

File Number:

BRG 469 of 2012

Judgment of:

Jarrett FM

Hearing date:

4 March 2013

Date of Last Submission:

4 March 2013

Delivered at:

Brisbane

Delivered on:

6 March 2013

REPRESENTATION

Counsel for the Applicant:

Mr Crank

Solicitors for the Applicant:

Construction, Forestry, Mining and Energy Union

Counsel for the Respondent:

Mr Bautovich

Solicitors for the Respondent:

MVM Legal

ORDERS

The respondents provide disclosure of documents in their power, possession or control relevant to the allegation that:
(a)In the two months before the Applicants dismissal the First Respondent transferred about 15 employees from the Portside project to the Queensland Children’s Hospital site and Queensland Children’s Hospital Energy Plant site.
(b)Since 19 March 2012, two (2) labourers started work at the Queensland Children’s Hospital site and Queensland Children’s Hospital Energy Plant site that had not previously worked at the site.
(c)On or about 26 March 2012, two (2) more general labourers and two (2) scaffolders started work at the Queensland Children’s Hospital site and Queensland Children’s Hospital Energy Plant site.
(d)The First Respondent asked all of its employees at the Queensland Children’s Hospital site and the Queensland Children’s Hospital Energy Plant site to increase their hours to ten (10) per day Monday to Friday.
(e)The First Respondent directed three (3) persons that it employed as apprentice carpenters to do scaffolding work.
The Respondent provide disclosure of documents in their power, possession or control as described in paragraph 7 of the application in a case filed on 13 February, 2013.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 464 of 2012

AARON KIPA

Applicant

And

CAELLI FORMWORK QLD PTY LTD

Respondent

BRG 466 of 2012

PHILLIP JOHN OLIVE

Applicant

And

CAELLI FORMWORK QLD PTY LTD

Respondent

BRG 468 of 2012

TASVIKA TSHUMA

Applicant

And

CAELLI FORMWORK QLD PTY LTD

Respondent

BRG 469 of 2012

GARY STRINGER

Applicant

And

CAELLI FORMWORK QLD PTY LTD

Respondent

REASONS FOR JUDGMENT

(revised from the transcript)

These are four applications for the Court to make declarations as to discovery under s.45(1) of the Federal Magistrates Act 1999 and then to make orders for disclosure or discovery in respect of certain specified categories of documents. There are four applications and four applicants but the applications are related. Each of the applicants were employees of the first respondent, Caelli Formwork Queensland Pty Ltd and all claim to have been dismissed from their employment by the respondent.
Each has brought a claim for dismissal in contravention of a general protection and the matters are listed for trial before me shortly. The particulars of the claims in each case are slightly different but there are matters which overlap in each of them. In each of the cases each applicant raises a ground of claim which is specific to that particular applicant and then goes on to allege that apart from that particular ground, or that particular breach of a general protection, there were other breaches which are common to at least three of the four actions that arise out of the involvement of those people in union activities and the support for complaints or making complaints about the way in which union members and employees generally are treated.
These applications seek disclosure of documents that, it is said, will either assist the applicants to prove their case or demonstrate that the respondent’s response to the case cannot be sustained. The conclusion I have come to is that by and large the requests are far too broad and ought not be permitted.
The applications of Mr Stringer and Mr Kipa seek disclosure of some additional categories of documents to those sought by the other two applicants. Paragraph 1 of their applications seek documents related to a tool allowance dispute that is alleged to be a source of difficulty between the parties. The tool allowance dispute itself is not relevant to these proceedings. What is relevant is the interaction between the applicants and the first respondent concerning the tool allowance. No documents are sought concerning that interaction. I will not make an order as sought by the applicants Kipa and Stringer in paragraph 1 of their applications.
In addition to the other categories sought by the other applicants, Mr Kipa and Mr Stringer, seek “Documents concerning safety issues”. That claim is too wide and does not properly define the documents, the production of which is sought. The request is declined.
Each applicant seeks “Records of hours worked by all employees of the First Respondent (“timesheets”) between 1 January 2012 and 29 November 2012.” In my view, that delineation of documents is far too broad and as the evidence filed on behalf of the respondents reveals, that will engage the respondent in the production of a considerable volume of documents.
The documents sought in paragraph 3 of the applications of Kipa and Stringer (paragraph 2 of Tshuma), (they are the same in each case), will result in the production of documents which have already been produced in the case. The documents sought are the personnel files of the employee who is the particular applicant in each case. They are already part of the evidence.
The category of documents sought in paragraph 3 of Tshuma’s application (see paragraph 4 of the other applications) is really two separate categories of documents. Both requests are too wide. That paragraph seeks the production of “any contract or documents which are, or concern, communication between the First Respondent and” then there are two categories of entity specified. The documents sought to be produced from the first entity are said to be limited to the construction of the Queensland Children’s Hospital and Queensland Children’s Hospital Energy Plant. The second category are said to relate to contact between the first respondent and “any entity….which provided a service to the First Respondent, which involved any person performing work on a construction site after 1 January, 2012”.
As Mr Herbert submitted for the respondents, arguably it encompasses every contractual document that exists in respect of the construction of the Queensland Children’s Hospital and Queensland Children’s Hospital Energy Plan and to which Abigroup or an entity DLP are parties. The request is too wide and oppressive.
Similarly, the request in paragraph 4 of Tshuma’s application (see paragraph 5 of the other applications) is too wide and oppressive. Apart from anything else it is not limited in time.
Paragraph 5 of Tshuma’s application (see paragraph 7 of the other applications) seeks the production of some records. The production of those records was not seriously disputed by the respondents, although it was said that not much is to be produced in that regard. They are statutory records which are relatively sparse. The specification of the categories of documents to be produced, however, is still too broad in that it seeks in respect of the regulation 3.32 records, production of documents in respect of “all employees of any associated entity of the First Respondent whose employment commenced or recommenced between 1 January, 2012 and 29 November 2012”. That specification is far too broad. It is unclear what is meant by the phrase “associated entity”. In my view that request as well ought not be permitted.
Paragraph 6 of Tshuma’s application (see paragraph 8 of the other applications) then refers to what was described in the very useful written submissions of the applicant as documents which are directly related to matters raised in the “pleadings”. However, there are no pleadings in this case. There is a form 2 claim and there was a response but in the traditional sense there are no “pleadings”. The form 2 claim sets out the claims and contraventions alleged by each of the applicants. It takes the form of a narrative rather than a pleading and is a mixture of assertion, conclusion, opinion as well as allegation of fact.
The response to each of the claims is in the same form. If it were a pleading it would be struck out because it consists largely of argument, submission. There are some facts. So to the extent that either or both of the parties contend that the claim and the response in this case constitutes pleadings in the sense that that word is used in the authorities that deal with discovery then the submissions are misconceived. However, some of the categories of documents that are sought to be obtained in paragraph 6 of the application can be confined and are relevant to an issue of fact which arises having regard to the claim and the response.
The first category of documents set out under paragraph 6 entitled “Documents related to the following points of Claim”, and then the paragraph commencing “I have promoted union values…” is far too broad. The obligation is not to produce documents which are related but documents which are relevant. There is a difference. Moreover, the paragraph which seeks to define the categories of documents to be produced is, itself, argument.
The next category, the first dot point under paragraph 6, are documents said to be related to the period “in the two months approximately before my dismissal the first respondent transferred about 15 employees from the Portside project to my site”. The production of such documents, that is, documents which demonstrate the transfer of employees from the Portside project to the Queensland Children’s Hospital site in the two months prior to the applicant’s dismissal might be relevant. I order their production. That is, documents in the respondent’s power, possession or control relevant to the allegation that in the two months before the applicant’s dismissal the first respondent transferred about 15 employees from the portside project to the Queensland Children’s Hospital site.
Similarly, the next dot point seeks documents which are probably relevant. I order the production of documents which are relevant to the allegation that since 19 March, 2012 two labourers started work at the Queensland Children’s Hospital project and the Queensland Children’s Hospital Energy Plant project that had not previously worked at the site.
I make a similar order in respect of the third dot point in paragraph 6.
I make a similar order in respect of the fourth dot point, that is, documents that are relevant to the allegation that the first respondent asked all of its employees at the Queensland Children’s Hospital site and the Queensland Children’s Hospital Energy Plant site to increase their hours to 10 per day Monday to Friday. That is the core allegation in that paragraph that there was a request to increase overtime. Any documents relevant to that ought to be produced.
The next dot point talks about a direction to three persons employed as apprentice carpenters to do scaffolding work including the loading out of scaffold, passing up scaffold and erecting some scaffold. It is not immediately clear to me how that is relevant because not all of the applicants were scaffolders and the request seems to be the same in each of the applications but I suppose that it only has to be relevant to one for the documents to have to be produced provided what needs to be produced is appropriately limited.
Accordingly, I order the production of any documents relevant to the allegation that the first respondent directed three persons that it employed as apprentice carpenters to do scaffolding work.
The next dot point concerning the construction of a birdcage by the DLP workers or contracted by the DLP is, in my view, not something about which I ought to order disclosure. It seems to have, if anything, marginal relevance. Similarly the next dot point. Similarly the next dot point. Whether a BLF delegate on the site told somebody something is not relevant to an issue in dispute in the proceedings. Whether somebody told something to somebody is a question of evidence. Whether Mr Myles might have told Mr Edwards and Mr Coleman on numerous occasions prior to his dismissal that more scaffolders were needed on site is nothing more than evidence of the relevant fact in issue.
Similarly, the next dot point. Those documents ought not be produced.
I do not understand the next dot point at all and I will not order production of documents in respect of that. Similarly, the next dot point seems to have no particular relevance. The same comments apply to the next dot point, that is, the first one on page 6 of the application. Similarly the next three dot points. I do not understand the final dot point on page 6 which refers to employees starting work for the first respondent on the Airport Link project within the last few months.
As I apprehend the claims made by the applicants as set out in their claims, their concerns centred around the Queensland Children’s Hospital project and the Energy Plant project. To the extent that the applicants are suggesting perhaps that they ought to have been deployed to other places including the Airport Link project it may be that some documents have some relevance but none of that is clear. In those circumstances I decline to make an order in respect of the last dot point in paragraph 6.
The next dot point, the first on page 7, seeks the production of documents which are ill-defined.. Arguably it does not even seek documents, but “information”. I will not order that the respondent produce or make disclosure of documents that are related to information about the changes, including the dismissal of the applicant, the timing of that dismissal and the effect on the applicant or other employees of that dismissal.
I do not understand the next dot point, nor do I see that it is relevant in these proceedings. Similarly the final dot point on page 7.
I do not propose to make any orders in respect of documents sought in paragraph 9. Those matters are statements that appear in the response. I do not know what documents might be related to a statement in a response such as “the applicant’s union is active on site”. In a vacuum it is meaningless. The response is not a pleading. They are not assertions, in my view, of facts which are in issue and so no disclosure is appropriate in respect of them.
I make the orders I have pronounced in respect of each application.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Jarrett FM delivered on 6 March 2013.

Date: 2 April 2013