Federal Circuit and Family Court of Australia
(DIVISION 2)
ABCC v CFMEU (Pacific Highway Upgrade Case) [2021] FedCFamC2G 248
File number(s): SYG 2015 of 2020 Judgment of: JUDGE HUMPHREYS Date of judgment: 1 November 2021 Catchwords: INDUSTRIAL LAW – Fair Work Proceedings – Notice of Objection to Subpoena – whether the documents sought do not have a legitimate forensic purpose in relation to the issues in the proceedings –whether the subpoena involves impermissible fishing – whether the subpoena is a bare attempt at discovery – objection upheld – subpoena set aside in its entirety. Legislation: Fair Work Act 2009 (Cth) ss 500, 550, 793 Cases cited: Buckley v Terrigal Grosvenor Lodge (Erina) Pty Ltd (No 2) (2015) 298 FLR 427
Commissioner for Railways (NSW) v Small (1938) 38 SR (NSW) 564
Favelle Mort Limited v Murray (1976) 133 CLR 580
Gloucester Shire Council v Fitch Ratings, Inc [2016] FCA 587
Patel v Minister for Immigration [2011] FCMA 19
Petrie, the Trustee of the property of Aitken, a Bankrupt v Aitken & Ors [2019] FCCA 16
Suh v Minister for Immigration and Citizenship (2009) 175 FCR 515
Division: Division 2 General Federal Law Number of paragraphs: 25 Date of last submission/s: 1 November 2021 Date of hearing: 1 November 2021 Place: Parramatta Counsel for the Applicant: Mr Chin SC and Ms Bulut Solicitor for the First Respondent: Mr Simic Counsel for the Second and Third Respondents: Mr Latham
Table of Corrections 29 September 2022 At paragraph 20, the word ‘intentional’ has been replaced with ‘intent and’. ORDERS
SYG 2015 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Applicant
AND: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION
First Respondent
DEAN LESLEY RIELLY
Second Respondent
PAUL FITZPATRICK
Third Respondent
order made by:
JUDGE HUMPHREYS
DATE OF ORDER:
1 November 2021
THE COURT ORDERS THAT:
1.The subpoena is set aside in its entirety.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
Introduction
In application filed on 26 August 2020, the Australian Building and Construction Commissioner (“ABCC”) seeks relief in the form of declarations and the imposition of pecuniary penalties against the first respondent, the Construction Forestry, Maritime, Mining and Energy Union (“CFMMEU”) and two of its employees, Mr Rielly and Mr…
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- Case
- [2021] FedCFamC2G 248
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the subpoena served a legitimate forensic purpose and whether it was justified in the context of the civil proceedings. The court also considered the conflict between the decision of Rares J in Botany Cranes and the decision of the New South Wales Court of Appeal, which provided differing perspectives on the enforceability of subpoenas in similar circumstances. The court had to decide which authority to follow and whether the subpoena in this case was sufficiently justified to be enforced.
The court found that the subpoena was not justified and served no legitimate forensic purpose in the civil proceedings. The court noted that the ABCC had no duty of disclosure in civil proceedings and that the respondents had not provided any concrete evidence or ground to support the belief that the subpoena would lead to any significant assistance in the case. The court placed considerable weight on the disclosure of draft statements and contemporaneous notes, which served the same purpose as the subpoenaed documents. The court concluded that the subpoena was a fishing expedition and set it aside in its entirety. The court followed the reasoning of Rares J in Botany Cranes and found that the respondents had failed to justify the validity of the subpoena.
The court's final orders were that the subpoena was set aside in its entirety, and the respondents were not required to comply with it. The court emphasised the importance of ensuring that subpoenas served a legitimate forensic purpose and were not used as a means to obtain information that could be easily obtained through other means. The court also highlighted the need for parties to follow the correct procedures for requesting document production, such as using a Notice to Produce, rather than resorting to overly broad subpoenas.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
When faced with a conflict between the decision of Rares J in Botany Cranes and the decision of the NSW Court of Appeal, being an intermediate appellate court, it was submitted that this Court should follow the latter and not the decision of Rares J.CONSIDERATION The Court is firstly satisfied that the material sought in the Subpoena is in all intent and purposes fundamentally the same as that considered by Rares J in Botany Cranes. This Court is in the same judicial hierarchy as the Federal Court, and although Botany Cranes was a decision of the Federal Court in its original jurisdiction, the Court is of the view that such a decision is binding upon this Court. As was pointed out by the High Court in Favelle Mort Limited v Murray (1976) 133 CLR 580 at 591 per Barwick CJ:The ultimate foundation of precedent which thus binds a court is that a court or tribunal higher in the hierarchy of the same juristic system, and thus able to reverse the lower court's judgment, has laid down that principle as part of the relevant law. Outside the area of binding precedent, there is an area where comity or respect for the high standing of a court outside that juristic unit dictates that the views of such a court in general be accepted unless the court is clearly convinced of the erroneous nature of the decision or reasoning of that other court, and there are sufficient reasons for departing from that decision or that reasoning. Thus, respect is accorded to the decisions of the House of Lords and, perhaps to a lesser degree, those of the English Court of Appeal. In Petrie, the Trustee of the property of Aitken, a Bankrupt v Aitken & Ors [2019] FCCA 16 at [35] Lucev J stated: “… this Court is bound by findings (including considered observations) of superior courts in its judicial hierarchy such as the High Court, the Full Court of the Federal Court, and the Federal Court: Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41… and whilst not binding, judgments of superior state courts, such as the WA Court of Appeal and the Supreme Court of Western Australia, are persuasive.” Whilst there may be room for argument that the decision of the New South Wales Court of Appeal in Blacktown City Council is at odds with the decision of Rares J in Botany Cranes, unless and until the decision in Botany Cranes is overturned within the Federal judicial hierarchy, the Court is of the view that the decision remains binding upon this Court. Even if the Court is wrong in this conclusion, the Court is not of the view that the decision of Rares J, is plainly wrong. This Court adopts the reasoning of Rares J in Botany Cranes and for the same reasons concludes that the respondents have failed to justify the validity of the Subpoena. No matter has been identified that is of any substance to support the use of the Subpoena other than speculation that it might produce an inconsistency which, if disclosed, could go to witnesses credit (see; Botany Cranes at [18]). The Court is also not satisfied that there is some concrete ground for belief that evidences or establishes that is “on the cards” that one or more documents which might be produced may lead to assistance (see; Botany Cranes at [20])