ABCC v CFMEU (Pacific Highway Upgrade Case)

[2021] FedCFamC2G 248

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:

Australian Building and Construction Commissioner v Construction Forestry, Maritime, Mining and Energy Union (No 2) [2019] FCA 2087

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

Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145

Suh v Minister for Immigration and Citizenship (2009) 175 FCR 515

Visy Industries Holdings Pty Limited v Australian Competition and Consumer Commission (2007) 161 FCR 122

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

1. 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 Fitzpatrick.

2. The ABCC alleges contraventions of s 500 of the Fair Work Act 2009 (Cth) (“the Act”) by Mr Rielly and Mr Fitzpatrick on 22 August 2019 at the Woolgoolga to Ballina Pacific Highway upgrade project. The proceedings against the CFMMEU proceed on the basis of accessorial liability, by reason of the operation of s 550 and 793 of the Act, in that Rielly and Fitzpatrick were employees of the CFMMEU at the relevant time

3. It is broadly alleged that Riley and Fitzpatrick entered a work site, and positioned themselves in-between the rear of a concrete truck and the site of a concrete pour, thereby preventing the truck from reversing towards a concrete pour area for the purpose of completing the pour.  This caused the concrete pour to be abandoned and the contents of the concrete truck, amounting to 6 cubic metres of concrete to be dumped, as it was no longer usable.  It is alleged that a day and one half of work time was lost as a result of the actions of Rielly and Fitzpatrick.

   PRELIMINARY ISSUE

4. On 23 September 2021, some 5 weeks prior to the trial date set for a liability hearing, the legal representatives for the respondents filed and served a Subpoena on the Applicant. In the Court’s view, given the history of the matter, serving a Subpoena so late in the proceedings is puzzling. The respondents had been in receipt of the ABCC’s evidence in chief by way of Affidavit since April 2021. Those Affidavits included, where relevant as annexures, a copy of any statement given to an ABCC inspector following the incident the cause of the proceedings, as well as diary or other contemporaneous notes of the various witnesses. In the Court’s view, should it have been necessary to issue a Subpoena in the terms set out below, this should have been done at a much earlier time.

5. The Subpoena can be described as wide in its terms. It’s schedule is as follows:

   1.   a copy of this subpoena

   2.   All records held by the ABCC (whether in written or electronic form) that fit the following description, but not including any documents filed and served by the Applicant in SYG2015/2020:

   a.   concerning ABCC investigation 43250; or

   b.   concerning an ABCC Investigation described as "43250 - ROE − 22/08/19 – Woolgoolga to Ballina − CFMMEU – Seymour White" or

   c.   concerning events at the Woolgoolga to Ballina Highway Upgrade (W2B Project) on 22 August 2019;

   and is or are:

   d.   a running sheet;

   e.   a file note stored on an internal ABCC case management system or otherwise;

   f.    a witness statement in draft or final form, prepared, taken or witnessed by the ABCC;

   g.   a transcript or record of interview;

   h. a notice to produce issued under s.712 of the Fair Work Act 2009,

   i. an examination notice given under s.61E of the Building and Construction Industry (Improving Productivity) Act 2016;

   j. a written notice given under s.35 of the Building and Construction Industry (Improving Productivity) Act 2016;

   k.   a notice, letter, correspondence or document exchanged between the ABCC and Seymour Whyte, its officers or employees;

   l.    a notice, letter, or correspondence or document exchanged between the ABCC and Laing O'Rourke, its officers or employees;

   m.    a notice, letter, or correspondence or document exchanged between the ABCC and WSP Australia, its officers or employees

   n.   a notice, letter, correspondence or document exchanged between the ABCC and Pacific Complete, including any of its employees, officers, agents or legal representatives..

   3.   All records held by the ABCC (whether in written or electronic form) that fit the following description, but not including any documents filed and served by the Applicant in SYG2015/2020:

   a.   a witness statement or other record, in draft or final form, held, prepared, taken or witnessed by the ABCC, of persons in attendance in the vicinity of Point A22, Bridge 22 or Bridge 20 of the Woolgoolga to Ballina Highway Upgrade (W2B Project) on 22 August 2019, including but not limited to:

   i.John Price;

   ii.Jock Scott;

   iii.Ella Russell;

   iv.Michelle Salisbury;

   v.Aaron Lawson;

   vi.Stephen O'Brien;

   vii.Nicholas Williams;

   viii.Shane Steger;

   ix.James Fleetwood;

   x.Gareth Morrison;

   xi.Paul Jordan;

   xii.Kane Pearce;

   xiii.Padraig Smith;

   xiv.Shane McGiver.

   b.   a witness statement or other record, in draft or final form, held, prepared, taken or witnessed by the ABCC, of persons in attendance in the vicinity of the Pacific Complete Tyndale Compound or Site Office of the Woolgoolga to Ballina Highway Upgrade (W2B Project) on 22 August 2019, including but not limited to:

   i.John Price;

   ii.Jock Scott;

   iii.Ella Russell;

   iv.Michelle Salisbury;

   v.Aaron Lawson;

   vi.Stephen O'Brien.

   Note: In this Schedule, the following definitions apply:

   “ABCC” includes the Australian Building and Construction Commissioner, the Australian Building and Construction Commission and any other inspector, employee or officer or agent thereof;

   "Laing O'Rourke" means Laing O’Rourke Australia Construction Pty Limited (ABN 39 112 099 000), and any employee or officer or agent thereof.
   "Pacific Complete" means a joint venture between WSP Australia Pty Ltd and Laing O'Rourke.
   "Seymour Whyte" means Seymour Whyte Constructions Pty Ltd (ACN 105 493 187), and any employee or officer or agent thereof.

   "WSP Australia" means "WSP Australia Pty Ltd" and "Parsons Brinckerhoff Australia Pty Limited (ABN 80 078 004 798)" and any and any employee or officer or agent thereof;

6. Perhaps unsurprisingly, the ABCC filed a Notice of Objection to the Subpoena. As a result, it was necessary to set aside time on the morning of the first day of the liability hearing to make a ruling on whether the Subpoena should be set aside.

7. In support of the Subpoena, the respondents relied upon an Affidavit of Timothy John McCauley, a Solicitor from the firm of Solicitors acting for the respondents. Mr McCauley deposed that many documents would be stored on the ABCC’s case management system “AIMS”, including a running sheet. It was asserted that the running sheet and any file notes that might be associated with the matter ‘will assist in the formulation of cross examination of the witnesses for the applicant’. This would include any failure to interview known witnesses, particularly if they were exculpatory of the respondents. A particular issue would relate to whether the accounts given by the witnesses were based on the accounts of others. The consistency of witness statements was highly relevant to cross examination.

   SUBMISSIONS OF THE APPLICANT IN SEEKING TO HAVE THE SUBPOENA SET ASIDE

8. Counsel for the ABCC submitted that the applicant was not under the same disclosure requirements of a prosecutor in a criminal case. The Subpoena issued by the respondents was in all material respects substantively and functionally indistinguishable from a Subpoena set aside by Rares J in Australian Building and Construction Commissioner v Construction Forestry, Maritime, Mining and Energy Union (No 2) [2019] FCA 2087, also known as Botany Cranes.

9. It was submitted that the Subpoena lacked a legitimate forensic purpose in relation to issues in the proceedings, involved impermissible fishing and constituted a bare attempt at discovery. Both cases involve applications for the imposition of pecuniary penalties. In both cases, the respondents largely sought to avoid joining any issue by reserving their privilege against penalty.

10. Rares J in Botany Cranes set aside the Subpoena for  five reasons.  First, the Subpoena had the appearance of acquiring the ABCC to give discovery of a broad range of documents constituting the “file” for the proceeding: (cf; Commissioner for Railways (NSW) v Small (1938) 38 SR (NSW) 564 at 575).

11. Second, the individual respondents had not identified any matter of substance supporting the use of the Subpoena, other than their speculation that amounts to either to fishing for a case or hoping that there might be an inconsistency or omission that, if disclosed, could possibly go to a witness’ credit: (see; Visy Industries Holdings Pty Limited v Australian Competition and Consumer Commission (2007) 161 FCR 122 at [105] and [109]).

12. Third, the mere existence of a regulator’s “file” does not establish that is “on the cards” that there will be a document or documents within the file that will materially assist the other party.  There must be some concrete ground for belief that evidences or establishes that it is “on the cards” that one or more documents will be produced in the production may lead to such assistance: (see; Gloucester Shire Council v Fitch Ratings, Inc [2016] FCA 587 (“Gloucester”) at [24]).

13. Fourth, it is not sufficient that there be a mere possibility that somewhere in the material there might be one or more documents which might suggest that when a witness gives evidence his or her testimony might be inconsistent with a record of previous representation, or revealing the potential existence of a document or witness who might be able to give evidence but is not being tended or called.

14. Fifth, the respondents were fishing to see whether they can find something, which they cannot specify, that might exist that would materially assist the case of any one or more of them.

15. It was submitted that each of these matters applied to the current matter directly and with the same force.

16. Counsel for the applicants conceded that the judgment of Rares J in Botany Cranes was not a decision of the Federal Court where it was exercising appellate jurisdiction as it was made in the Federal Court’s original jurisdiction. Notwithstanding this, it was submitted that the decision of Rares J was nevertheless binding on a Judge of the Federal Circuit and Family Court of Australia (Division 2) in the general federal law jurisdiction. In Suh v Minister for Immigration and Citizenship (2009) 175 FCR 515 at [29] the Full Federal Court warned against any “notion that the authority of judgments of single judges of the Court waxes and wanes according to whether they are sitting as single judges in the Court’s appellate jurisdiction or in the Court’s original jurisdiction and, if the former, on appeal from any particular Court or judicial officer”. It was submitted that despite some suggestions to the contrary, the better view is that this Court is strictly bound to follow decisions of single Judges of the Federal Court, regardless of whether they are in its original or appellate jurisdiction: (see; Buckley v Terrigal Grosvenor Lodge (Erina) Pty Ltd (No 2) (2015) 298 FLR 427 at [53]-[55] and Patel v Minister for Immigration [2011] FCMA 19 at [54]-[55]).

17. It was further submitted that even if the decision of Rares J in Botany Cranes was not strictly binding (which was not admitted) then as a matter of comity, this Court should follow it unless it was plainly wrong. It was not plainly wrong as it followed well settled principles in relation to the setting aside of a Subpoena. Second, it was consistent with other decisions of the Federal Court, including Gloucester. Third, Rares J rejected the submission that the Subpoena served a legitimate forensic purpose of testing the credibility of witnesses, quoting Visy Industries Holdings Pty Ltd v Australian Competition and Consumer Commissions at [105] per Lander J, with whom Moore J agreed that “issues as to credit are matters which are not raised upon the pleadings and do not oblige the parties to give discovery or produce documents”. Fourth, as set out above, the witnesses had already attached as annexures to their Affidavits initial statements given to the ABBC investigators and any contemporaneous notes where they existed. Further, the applicant was not obliged to call every witness who might potentially give relevant evidence.

    RESPONDENT’S SUBMISSIONS

18. On behalf of the respondents, it was submitted that the decision of Rares J in Botany Cranes was no longer good law. Reliance was placed on Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 (“Blacktown City Council”) where the President said the following [40], with Brereton JA agreeing at [89-90] and MacCallum JA at [98].

    “… it will not be fishing, manifesting an illegitimate forensic purpose, to seek to subpoena apparently relevant documents for the purposes of cross-examining an important witness, even if the subpoenaing party does not know whether those documents will assist or advance its case. The passage also supports the view that a party may be materially assisted in its case by knowing what apparently relevant documents say, even if those documents may not ultimately materially advance that party’s case.”

19. 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

20. 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.

21. 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.”

22. 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.

23. 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])

24. The Subpoena in this case is nothing more than a blatant fishing expedition. The Court is not of the view that it serves a legitimate forensic purpose in what is a civil proceeding where the applicant has no duty of disclosure.  Further, it was always open to the respondents to request the production of documents through the use of a Notice to Produce.  The Court has also placed considerable weight on the disclosure by the applicant of various draft statements and contemporaneous notes which are attached to the various witness’ statements.  The production of this material serves precisely the purpose sought by the Subpoena, that being to investigate whether there are prior inconsistent statements by witnesses.

    CONCLUSION

1. In these circumstances, the Court sets aside the Subpoena in its entirety.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Deputy Associate:

Dated:       1 November 2021