AMACSU v Brimbank City Council
[2009] FMCA 1213
•9 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AMACSU v BRIMBANK CITY COUNCIL & ANOR | [2009] FMCA 1213 |
| INDUSTRIAL LAW – Discovery – not allowed unless declared to be appropriate in the interests of the administration of justice. |
| Federal Magistrates Act 1999, s.45 Workplace Relations Act 1966, s.809 Fair Work Act2009, s.361 |
| Abrahams v Qantas Airways Ltd (No.2) [2007] FMCA 639 Genovese v BGC Construction Pty Ltd [2007] FMCA 634 BHP Billiton Ltd v Schultz (2004) 221 CLR 400 |
| Applicant: | AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL & SERVICES UNION |
| First Respondent: | BRIMBANK CITY COUNCIL |
| Second Respondent: | STAN YOUNG |
| File Number: | MLG 1427 of 2009 |
| Judgment of: | Turner FM |
| Hearing date: | 1 December 2009 |
| Date of Last Submission: | 1 December 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 9 December 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bornstein |
| Solicitors for the Applicant: | Maurice Blackburn Lawyers |
| Counsel for the Respondents: | Mr O’Grady |
| Solicitors for the Respondents: | Maddocks Lawyers |
ORDERS
The application for discovery is dismissed.
The matter is fixed for final hearing at 10am on 16 August 2009 with an estimated hearing time of 3 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1427 of 2009
| AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL & SERVICES UNION |
Applicant
And
| BRIMBANK CITY COUNCIL |
First Respondent
| STAN YOUNG |
Second Respondent
REASONS FOR JUDGMENT
An application for discovery of documents has been made by the applicant in this matter. The Respondents oppose the application.
Section 45 of the Federal Magistrates Act 1999 (the “Act”) provides:
(1)Interrogatories and discovery are not allowed in relation to proceedings in the Federal Magistrates Court unless the Federal Magistrates Court or a Federal Magistrate declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.
(2)In deciding whether to make a declaration under subsection (1), the Federal Magistrates Court or a Federal Magistrate must have regard to:
(a)whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and
(b)such other matters (if any) as the Federal Magistrates Court or the Federal Magistrate considers relevant.
The question therefore is:
Whether it is appropriate in the interests of the administration (management) of justice to allow discovery?
In deciding whether to make such a declaration the Court must have regard to whether allowing discovery would be likely to lead to the fair and expeditious conduct of the proceeding, and such other matters, if any, that the Court considers relevant.
The applicant seeks discovery of six classes of documents being:
(1)All documents relating to the decision to give Mr Wallis the warning alleged in para.16 of the Statement of Claim; [referred to as Category 3 in the Respondents Outline of Submissions in Respect of Discovery (the Respondents Outline)];
(2)All documents relating to the disciplinary counselling described in paras.19-21 of the Statement of Claim; (referred to as Category 4 in the Respondents Outline);
(3)All documents relating to the refuelling incident described in para.22 of the Statement of Claim, including any documents relating to action taken against Smoult and Wallis in respect of such incident; (referred to as Category 5 in the Respondents Outline);
(4)The complaint referred to in para.25(a)(i) of the defence and any documents relating to such complaint; (referred to as Category 6 in the Respondents Outline);
(5)All documents relating to Mr Smoult’s complaints against Wallis (and his complaints against Baker, Surplice and Briffa, to the extent that such documents deal with allegations made also against Wallis); (referred to as Category 1 in the Respondents Outline);
(6)All documents generated by the First Respondent in the course of its dealings with CHS in relation to Smoult’s complaints against Wallis (and his complaints against Baker, Surplice and Briffa, to the extent that such documents deal with allegations made also against Wallis); (referred to as Category 2 in the Respondents Outline).
Mr O’Grady for the respondents points out that the consent minutes for the conduct of the matter provide for the respondents to file and serve affidavits on or before 16 February 2010 which is well before the mediation (to be on a date to be fixed between 1 April and 1 May 2010), and well before the trial of the matter. The trial is listed on
16 August 2010. Therefore before the mediation and trial the applicant will have notice of the evidence the respondents will seek to rely on. The applicant will therefore not be caught by surprise.
Mr O’Grady points out also that the nature of the claims results in a reverse onus on the respondent. Therefore the respondents will need to refer to and produce all documents they intend to rely on to prove their defence.
Mr Bornstein for the applicant referred to the decision by the Court in Abrahams v Qantas Airways Ltd (No.2) [2007] FMCA 639 in support of his application.
In Abrahams the Court referred to the decision in Genovese v BGC Construction Pty Ltd [2007] FMCA 634 and stated at [9]:
The Court dealt with the phrase “interests of the administration of justice” in Genovese v BGC Construction Pty Ltd. In Genovese the Court said:
“In BHP Billiton Ltd v Schultz (2004) 221 CLR, 400, [2004] HCA 61, (“Schultz”) the High Court considered the nature of the “interests of justice”: Gleeson CJ, McHugh and Heydon JJ CLR at p.421, HCA at par [15] said: The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so, the interests of the respective parties, which might in some respects be common (as, for example, cost and efficiency), and in other respects conflicting, will arise for consideration. The justice referred to in s.5 is not disembodied, or divorced from practical reality.
Gummow J observed that the interests of justice “are even-handed”; CLR at p.445, HCA at par [100] while Callinan J referred to the requirement to “do equal justice”: CLR at p.492, HCA at par [258].
and further said:
“In assessing the “interests of the administration of justice” similar considerations to those in Schultz apply, with the qualification related to “administration of justice”. Administration means “management”: Concise Oxford Dictionary, 7th Edition (Oxford: Oxford University Press, 1984) at p.13. Thus, s.39(3)(d) of the [FM} Act is directed to a consideration of the interests of the management of justice, which must mean management by the Court of the proceedings pending before the Court.
and at [10] and [11]”
Although Genovese was a case concerning transfer of proceedings to the Federal Court under s.39(3)(d) of the FM Act, the consideration of the phrase “interests of the administration of justice” there is apposite in this case.
The Court must therefore in considering an application for a discovery declaration determine whether the interests of the administration of justice, that is the interests of the management of justice, being the management by the Court of the proceedings pending before the Court, require such a declaration, and is no doing the Court “must have regard to” whether discovery “will be likely to contribute to the fair and expeditious conduct of the proceeding” and such other matters as the Court considers relevant.
The Court must consider whether allowing discovery would be likely to contribute to the fair and expeditious conduct of the proceedings? The orders of 1 December 2009 provide for a timetable extending to a hearing date on 16 August 2010. It is unlikely that a declaration for discovery would delay the hearing. There is no doubt that discovery would not lead to an earlier hearing, as the Court does not have earlier dates available.
Discovery would lead to additional work and cost to the respondents, and would not reduce the work or cost to the applicant. Not allowing discovery is unlikely to increase the work or costs, of the applicant.
As a reverse onus applies, the applicant does not have to prove its case beyond formal matters. It is unlikely to need the documents sought in order to prove those matters. The burden is on the respondents to prove their defence (s.809 Workplace Relations Act 1966 and s.361 Fair Work Act 2009).
Making a declaration for discovery would give the applicant advance notice of the documents to be relied on by the respondents, and thereby assist the applicant, and burden the respondents.
Considering that the respondents will be filing and serving affidavits, which are likely to refer to all documents on which they intend to rely, and the applicant will have notice of them on or before
16 February 2010, it is unfair for the respondents to be put to the additional work and cost of providing early discovery.
The Court does not find that allowing discovery would be likely to contribute to the fair and expeditious conduct of the proceedings. It would therefore not be appropriate in the interests of the administration/management of justice to allow discovery.
The Court therefore dismisses the application for discovery.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Eyal D’vier
Date: 9 December 2009
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