Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union and Ors (No.3)

[2018] FCCA 34

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION & ORS (No.3) [2018] FCCA 34

Catchwords:
PRACTICE AND PROCEDURE – Application to set aside subpoenas – whether legitimate forensic purpose demonstrated – whether oppressive – parts of subpoenas set aside.

Legislation:

Fair Work Act 2009 (Cth), s.173
Federal Circuit Court Rules 2001 (Cth), r.15A.05

Cases cited:

Bengalla Mining Co Pty Ltd v Barclay Mowlem Construction Ltd [2001] NSWSC 93
In the Matter of One.Tel Ltd (in liq) – Singtel Optus Pty Ltd v Weston [2010] NSWSC 1491
Pilato v Metropolitan Water Sewerage and Drainage Boar (1959) 76 WN 364
Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710
Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921
Wong v Sklavos [2014] FCAFC 120
Wright v Chief Executive Officer of Customs [2013] WASC 9

Applicant: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

First Respondent: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Second Respondent: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH)

Third Respondent: BRIAN PARKER

Fourth Respondent: RITA MALLIA

Fifth Respondent: MICHAEL GREENFIELD

Sixth Respondent: DARREN GREENFIELD

Seventh Respondent: LUKE COLLIER

Eighth Respondent: TONY SLOANE

Ninth Respondent: ROBERT KERA

Tenth Respondent: SALVATORE MANNA

Thirteenth Respondent: FRANCIS O’GRADY

Fourteenth Respondent: MARTIN WYER

File Number: SYG 332 of 2016

Judgment of: Judge Manousaridis

Hearing dates: 15 December 2017; 19 December 2017

Date of Last Submission: 19 December 2017

Delivered at: Sydney

Delivered on: 12 January 2018

REPRESENTATION

Counsel for the Applicant: Mr Y Shariff

Solicitors for the Applicant: Australian Government Solicitor

Counsel for the First and Second Respondents: Mr J H Pearce

Solicitors for the First and Second Respondents: Taylor & Scott Lawyers

Solicitors for the Third to Tenth and Fourteenth Respondents: Mr T McCauley of Taylor & Scott Lawyers

Counsel for the Thirteenth Respondent: Mr S Crawshaw SC

Solicitors for the Thirteenth Respondent: Slater and Gordon

ORDERS

1. Paragraphs 2, 3, and 4 of each of the subpoenas issued to the first and second respondents on 27 November 2017 are set aside.

2. Paragraphs 6 of each of the subpoenas issued to the first and second respondents on 27 November 2017 are set aside to the extent the paragraphs call for the production of documents recording the hiring of buses or vans for use in Sydney to transport people to Barangaroo on 13, 14, and 16 February 2015.

3. Paragraph 10 of the subpoena issued to De Martin & Gasparini Pty Limited on 27 November 2017 is set aside.

4. The costs of the hearing of objections to subpoenas are reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 332 of 2016

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

Applicant

And

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

First Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH)

Second Respondent

BRIAN PARKER

Third Respondent

RITA MALLIA

Fourth Respondent

MICHAEL GREENFIELD

Fifth Respondent

DARREN GREENFIELD

Sixth Respondent

LUKE COLLIER

Seventh Respondent

TONY SLOANE

Eighth Respondent

ROBERT KERA

Ninth Respondent

SALVATORE MANNA

Tenth Respondent

FRANCIS O’GRADY

Thirteenth Respondent

MARTIN WYER

Fourteenth Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter was relisted before me on 15 December 2017 on the application of the applicant (Commissioner). The Commissioner applied to relist the matter to apply for an order that I extend the time fixed by the orders I made on 17 August 2017 for the Commissioner to put on her evidence, and also to apply for an order under r.15A.05 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) to permit the Commissioner to apply for the issue of more than five subpoenas for production.

2. In addition, at the request of the parties, I heard argument on 15 and 19 December 2017 on objections the first and second respondents made to subpoenas issued on the application of the Commissioner against each of them and against De Martin & Gasparini Pty Limited (DMG), a non-party. I reserved judgment indicating I would give my judgment on 22 December 2017. I was unable on that day to deliver judgment. On that day, however, I granted the Commissioner leave under r.15A.05 of the FCC Rules to apply for the issue of more than five subpoenas, made directions, and listed the proceeding on 12 January 2018 for the purpose of delivering judgment on the first and second respondents’ objections to the subpoenas.

3. In these reasons for judgment, therefore, I consider the first and second respondents’ objections to the subpoenas.

Subpoenas issued against first and second respondents

1. The subpoenas issued against the first and second respondents call for the same documents. In a letter dated 18 December 2017 from the Commissioner’s lawyers to the lawyers for the first and second respondents,[1] the Commissioner modified the description of the documents she intended should be produced in answer to the subpoenas. The paragraphs of the schedules to the subpoenas to which the first and second respondents object, as modified by the letter dated 18 December 2017, are as follows:

   2.All telephone records (including telephone bills) for the Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Thirteenth and Fourteenth Respondents recording, or evidencing communications occurring in the period from 12 February 2015 to 17 February 2015 as between:

   (a)each of the Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Thirteenth and Fourteenth Respondents; or

   (b)one or more of the respondents referred to at para (a) and:

   (i)any officer, agent, contractor, employee or delegate of De Martin and Gasparini Pty Ltd ; or

   (ii)any officer, agent, contractor, employee or delegate of any of the subcontractors (as that terms [sic] is defined in [sic] at paragraph 25 of the Second Amended Statement of Claim).

   [1] Exhibit A

   3.All written communications from 12 February 2015 to 17 February 2015 between any officer, agent, contractor, employee or delegate of the First/Second Respondent and any employee, officer, agent or contractor of De Martin & Gasparini Pty Limited, relating to the negotiation of an Enterprise Agreement.

   4.All documents which record or evidence any officer, agent, contractor or employee of the First/Second Respondent attending at the construction site at Harold Park between 13 February 2015 and 17 February 2015 and raising any safety issue in relation to the pouring of concrete.

   . . . .

   6.Any document recording the hiring of buses or vans for use in Sydney to transport people to Barangaroo or Harold Park on any of the following dates:

   6.113 February 2015;

   6.214 February 2015;

   6.316 February 2015;

   6.417 February 2015

   (the relevant dates) . . .

2. The first and second respondents submit that the Commissioner is seeking “back door” discovery; the subpoenas are oppressive; and the documents sought to be produced by the subpoenas “lack forensic relevance without reference to the alleged facts and affidavit evidence to date” and, for that reason, “are merely a “fishing” expedition”.

3. The first and second respondents rely on three legal principles. The first is that subpoenas must not be used as a substitute for discovery. What this means is that a subpoena must not require “the recipient to make a judgment as to which documents relate to issues joined in the proceedings”.[2] In Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd Clarke J stated the rule as follows: [3]

   A subpoena which imposes upon a stranger the task of forming a judgment as to whether a document or documents relates or relate to issues between the litigants imposes an obligation upon the stranger tantamount to discovery and is, for that reason, an abuse of process. No doubt a subpoena may be couched in such terms as to require compliance with such an obligation, although the document itself does not expressly refer to the issues.

   [2] Bengalla Mining Co Pty Ltd v Barclay Mowlem Construction Ltd [2001] NSWSC 93 at [16]

   [3] [1984] 1 NSWLR 710 at 718 at page 718

4. The principle that subpoenas must not be used as a substitute for discovery does not require that the subpoena identify documents individually. It is permissible for a subpoena to describe documents by reference to, or in relation to, a particular subject matter. Waddell J made this point in Spencer Motors Pty Ltd v LNC Industries Ltd:[4]

   It is, of course, important not to read the passage cited as forbidding the use of expressions such as “relating to”. Taken as a whole, the passage indicates that what is objectionable is placing on the person to whom a subpoena is addressed the same kind of burden as is placed on a party required to give discovery of documents. Broadly speaking, that burden is to go through the documents in his possession or power and list each document which relates to the matters in question in the proceeding in the sense that “it contains information which may — not which must — either directly or indirectly enable the party requiring the discovery either to advance his own case or to damage the case of his adversary, or which may fairly lead to a train of inquiry which may have either of these two consequences”: . . .

   Use of expressions such as “relating to” need not result in there being any oppression or abuse of process. It all depends on the context in which the expression is used. For instance, it could hardly be said to be objectionable to require a person to produce all “invoices” relating to sales of a particular item to the defendant on a particular day. The use of the word “invoices” would restrict the potential width of the expression “relating to”.

   [4] [1982] 2 NSWLR 921 at 929

5. This point was also made by Clarke J in Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd:[5]

   [I]t does not follow . . . that a subpoena requiring the production of documents relating to a specified subject matter is necessarily objectionable on the ground it calls for discovery. . . .

   I have been at pains in this judgment to point out that court procedures are designed to bring about, as far as possible, an efficient and expeditious resolution of disputes between parties. They are essentially practical matters. The subpoena, which is an important part of the process, requires a person, quite often a lay person, to bring to court documents which may be specified in particular or general terms. The recipient is not and should not be required to consult a dictionary and then carry out an exercise in construction of the document before embarking upon the collection of the documents.

   The court, in determining whether a subpoena is oppressive, is concerned with whether in all the circumstances the demand is, for relevant purposes, too wide or uncertain. For this purpose it must determine whether the terms of the subpoena convey to the recipient in relatively clear language the document or class of document called for. The court would inquire, I apprehend, as to the meaning which would be conveyed to members of the public as opposed to the meanings which might be conveyed to lawyers engaged in a debate upon construction. It seems to me that, in the context of the subpoena with which I am presently concerned, the recipient would not be concerned with fine distinctions between “relating to” and “referring to” and would read them as broadly calling for the same range of documents.

   [5] [1984] 1 NSWLR 710 at 718; and 720-721

6. Counsel for the first and second respondents referred to the judgment of Ward J in In the Matter of One.Tel Ltd (in liq) – Singtel Optus Pty Ltd v Weston[6] in which her Honour noted that a subpoena must identify the documents with reasonable particularity. Given that Ward J referred[7] without disapproval to Southern Pacific Hotel Services Inc,[8] her Honour may be taken to have accepted that a subpoena will not be set aside only because it describes the documents it requires to be produced by reference to, or in relation to, a particular subject matter.

   [6] [2010] NSWSC 1491

   [7] [2010] NSWSC 1491 at [40] and [43]

   [8] [1984] 1 NSWLR 710 at 718

7. The second principle on which the first and second respondents rely concerns the relation the subject matter of the documents called by the subpoena must bear to the issues in the proceeding. The expression that is often used to describe the required relation is “apparent relevance”, but other synonyms are used. Thus, in Wong v Sklavos the Full Federal Court said (omitting authorities cited):[9]

   The party issuing a subpoena bears the onus of demonstrating that the subpoena has a legitimate forensic purpose in relation to the issues in the proceedings. A subpoena may be set aside if it requires the production of documents which do not have apparent relevance to the issues arising on the pleadings. Other cases have used different terminology, but with essentially the same effect, for example, by requiring that, viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative, or that the material sought is reasonably likely to add in some way to the relevant evidence in the case, or that it be “on the cards” that the documents sought will materially assist the party at whose request the subpoena has been issued.

   [9] [2014] FCAFC 120 at [12]

8. The third principle on which the first and second respondents rely is oppression. The notion of “oppression” in this context has a variable meaning which overlaps with the first two principles I have already discussed. To the extent the notion of oppression extends beyond these first two principles, it is concerned with the nature and magnitude of the tasks the subpoena imposes on the recipient having regard to the potential utility of the production of the documents, if they exist, to the just resolution of the issues in dispute. A subpoena will be set aside on the ground of oppression if it places a disproportionate burden on the recipient having regard to the potential utility of the recipient complying with the subpoena.

Paragraphs 2 of the subpoenas

1. Paragraphs 2 of each of the subpoenas issued against the first and second respondents call for telephone records of calls in the period of 12 February 2015 and 17 February 2015 between:

   a)the respondents named in paragraphs 2 of the subpoenas;

   b)those respondents and any officer, agent, contractor, employee, or delegate of the nine subcontractors identified in paragraph 25 of the second amended statement of claim (subcontractor representatives); and

   c)those respondents and any officer, agent, contractor, employee, or delegate of DMG (DMG representatives).

2. Counsel for the Commissioner submitted that the documents evidencing communications identified in paragraphs 2 of each of the subpoenas are apparently relevant, whether or not on their face the communications the documents might evidence relate to the activities alleged in paragraph 76 (and, I assume, paragraphs 107, 160, and 181) of the second amended statement of claim. Counsel for the Commissioner submitted that from the pattern of calls that the records may reveal, it might be possible to infer activity consistent with the relevant respondents’ organising other employees to attend the Barangaroo and Harold Park sites. Counsel for the Commissioner gave the example of records showing a small number of telephone calls on the days before the days of the alleged incidents, but a substantial increase in telephone calls on the days of the alleged incidents.

3. It may be accepted that, when considered with other evidence, evidence of a substantial increase in telephone activity could conceivably be relevant for the purposes submitted by counsel for the Commissioner. Paragraphs 2 of each of the subpoenas, however, suffer from a number of difficulties. First, paragraphs 2 of each of the subpoenas do not identify the documents with any particularity. To be in a position to identify the documents, the first and second respondents must know the telephone number of each of the third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, thirteenth, and fourteenth respondents, the identity of each subcontractor representative and DMG representative, and the telephone number of each subcontractor representative and DMG representative. None of these details is specified in paragraphs 2 of each of the subpoenas.

4. Second, and as a consequence of the first difficulty, to comply with paragraphs 2 of each of the subpoenas, the first and second respondents would have to make inquiries to identify each subcontractor representative and DMG representative, and the telephone numbers that are associated with the telephones used by each such subcontractor representative and DMG representative. That would be oppressive.

5. Third, the communications for which records are called for by paragraphs 2 of each of the subpoenas are not limited to the relevant respondents engaging in the activities alleged in paragraphs 76, 107, 160, and 181 of the second amended statement of claim. In other words, paragraph 2 of the subpoenas calls for documents that record communications between the persons whether or not the communications relate to engaging in the activities alleged in the second amended statement of claim.

6. Fourth, although in paragraphs 76 and 107 of the second amended statement of claim it is alleged that the respondents named in those paragraphs arranged or assisted in arranging a group of “DMG Employees” (as defined in the second amended statement of claim) to attend the Barangaroo site, the matters on which the Commissioner relies for those allegations are set out in the particulars. Although pleadings “define the issues in general terms”, particulars “control the generality of the pleadings and restrict the evidence to be led by the parties at the trial and give the other party such information as may enable him to know what case he will be met with at the trial and prevent surprise”.[10] As was observed by E M Heenan J in Wright v Chief Executive Officer of Customs:[11]

   It is a wellknown risk and potential consequence of giving particulars to a pleading that, by doing so, the breadth and reach of the pleading itself may be unexpectedly constrained. This accounts for the observation that a party is bound by his particulars and may not go into matters outside the particulars even though the pleading itself may otherwise have had a wider ambit: Woolley v Broad [1892] 2 QB 317 and James v Smith [1891] 1 Ch 384.

   [10] Pilato v Metropolitan Water Sewerage and Drainage Boar (1959) 76 WN 364 at pages 365-366

   [11] [2013] WASC 9 at [32]

7. Thus, although the documents called for by paragraphs 2 of each of the subpoenas could be said to have been relevant to paragraphs 76 and 107 of the second amended statement of claim, had those allegations not been particularised, the apparent relevance of the documents called for by paragraphs 2 is to be assessed by reference to the particulars to paragraphs 76 and 107 of the second amended statement of claim. The documents described in paragraphs 2 of each of the subpoenas, however, call for documents that are broader than the matters alleged in the particulars to paragraphs 76 and 107 of the second amended statement of claim.[12]

   [12] What I say about the allegations in paragraphs 76 and 107 does not apply to the analogous allegations made in paragraphs 160 and 181 of the second amended statement of claim which alleges organisation in relation to the Barangaroo site. In paragraph 160(a1) of the second amended statement of claim because the allegations of the relevant respondents organising other are not particularised.

1. For these reasons, I propose to set aside paragraph 2 of each of the subpoenas addressed to the first and second respondents.

Paragraph 3 of the subpoenas

1. Paragraphs 3 of the subpoenas addressed to the first and second respondents call for all written communications from 12 February 2015 to 17 February 2015 between any officer, agent, contractor, employee, or delegate of the first or second respondents and any employee, officer, agent, or contractor of DMG relating to the negotiation of an enterprise agreement. Counsel for the Commissioner submitted that these documents are apparently relevant because the respondents put in issue allegations made in paragraphs 30 to 39 of the second amended statement of claim. Using the defined terms contained in the second amended statement of claim, the Commissioner alleges in those paragraphs the following:

   a)DMG was covered by the 2011 DMG Enterprise Agreement;[13]

   b)the 2011 DMG Enterprise Agreement covered DMG Employees;[14]

   c)the 2011 DMG Enterprise Agreement had a nominal expiry date of 30 September 2014;[15]

   d)in early 2014 DMG decided to initiate bargaining with the DMG Employees to replace the 2011 DMG Enterprise Agreement;[16]

   e)in 2014 DMG sent a notice of employee representational rights to each of the DMG Employees pursuant to s.173 of the Fair Work Act 2009 (Cth);[17]

   f)CFMEU was the bargaining representative for all or substantially all of the DMG Employees in relation to the bargaining for an enterprise agreement to replace the 2011 DMG Enterprise Agreement;[18]

   g)in or about mid-2014 DMG initiated bargaining by providing CFMEU with a copy of DMG’s Proposed EA;[19]

   h)CFMEU rejected DMG’s Proposed EA;[20]

   i)in or about mid-2014 CFMEU provided CFMEU’s Proposed EA;[21] and

   j)between mid-2014 and 30 March 2015 DMG rejected CFMEU’s Proposed EA.[22]

   [13] SASOC, [30]

   [14] SASOC, [31]

   [15] SASOC, [32]

   [16] SASOC, [33]

   [17] SASOC, [34]

   [18] SASOC, [35]

   [19] SASOC, [36]

   [20] SASOC, [37]

   [21] SASOC, [38]

   [22] SASOC, [39]

2. Counsel for the Commissioner also submitted that the documents called for by each of paragraphs 3 of the subpoenas are apparently relevant to the allegation made in paragraph 80A of the second amended statement of claim (and, by implication, the allegations made in paragraphs 111A, 142A, and 162A of the second amended statement of claim). In those paragraphs it is alleged that the respondents identified in those paragraphs took the actions alleged elsewhere in the second amended statement of claim with the intention of, among other things, coercing DMG to exercise its workplace right in a particular way, namely to agree to an enterprise agreement on terms proposed by or agreeable only to the first respondent.

3. In their defences the respondents put in issue the alleged facts I have set out in paragraphs 20(d), (e), (g), and (j) of these reasons. In addition, the first and third respondents allege that on 15 May 2014 the third respondent gave a copy of a proposed enterprise agreement to representatives of approximately 23 concrete businesses; that on 2 July 2014 the third respondent sent an email to DMG stating that the first respondent wanted to commence negotiations with DMG for an enterprise agreement in respect of the DMG Employees; and that, at all material times DMG refused to make the proposed enterprise agreement. The respondents also deny or do not plead to the matters alleged in paragraphs 80A, 111A, 142A, and 162A of the second amended statement of claim.

4. There are two issues on the pleadings to which the documents described in paragraphs 3 of the subpoenas may be considered to be apparently relevant. The first issue is the allegation made in paragraph 39 of the second amended statement of claim, namely, that between mid-2014 and 30 March 2015 DMG rejected CFMEU’s Proposed EA. The documents described in paragraphs 3 of each of the subpoenas, however, extend beyond documents that are relevant or apparently relevant to the allegations made in paragraph 39 of the second amended statement of claim.

5. The second issue to which the documents described by paragraphs 3 of each of the subpoenas may be considered relevant or apparently relevant are those that arise from the respondents’ denials of (or not pleading to) paragraphs 80A, 111A, 142A, and 162A of the second amended statement of claim. The apparent relevance, however, flows from the allegations made in paragraphs 30 to 39 of the second amended statement of claim; but, as I have already concluded, the documents described in paragraphs 3 of the subpoenas are only potentially relevant to the allegations made in paragraph 39 of the second amended statement of claim, and the documents described in paragraphs 3 extend beyond documents that are relevant to the matters alleged in paragraph 39 of the second amended statement of claim.

6. I propose, therefore, to set aside paragraphs 3 of the subpoenas.

Paragraph 4 of the subpoenas

1. Paragraphs 4 of the subpoenas call for all documents that record or evidence any officer, agent, contractor, or employee of the first or second respondent attending at the construction site at Harold Park between 13 February 2015 and 17 February 2015 and raising any safety issue in relation to the pouring of concrete. Counsel for the Commissioner submitted that the forensic purpose of requiring the production of these documents is to provide evidence that shows whether in the months before the eighth respondent, Mr Sloane, or any other officer, agent, contractor, or employee of the first or second respondents, had raised any safety issue at the Harold Park site as alleged in paragraph 182 of second amended statement of claim. Counsel for the Commissioner submitted that this may be relevant because, if the first and second respondents do not produce any documents that fall within paragraphs 4 of each of the subpoenas, that may be a basis for inferring that Mr Sloane did not believe there was a safety issue.

2. There are two difficulties with this asserted forensic purpose. First, paragraphs 4 of the subpoenas only call for documents for the period of 13 February 2015 and 17 February 2015. Second, paragraphs 4 of the subpoenas call for documents evidencing safety issues being raised by any officer, agent, contractor or employee of the first or second respondents. That persons other than Mr Sloane may not have raised any safety issue in relation to the pouring of the concrete either from 13 February 2015 to 17 February 2015, or at any other time, has no relevance or apparent relevance to whether Mr Sloane believed the safety issue it is alleged in paragraph 182 of second amended statement of claim that Mr Sloane raised. Third, even if paragraphs 4 of the subpoenas were restricted to documents that evidence Mr Sloane alone having raised a safety issue at the Harold Park site, either during the period from 13 February 2015 to 17 February 2015 or at any other time, the first and second respondents’ not producing any such documents could have no relevance or apparent relevance to whether Mr Sloane believed in the safety issues it is alleged he raised. That is so because there are too many possible explanations for his not having raised such issues before 17 February 2015 ranging from his not having attended the Harold Park site or from his being unaware of there being any safety issue.

3. I propose, therefore, to set aside paragraphs 4 of the subpoenas.

Paragraph 6 of the subpoenas

1. Paragraphs 6 of each of the subpoenas call for documents recording the hiring of buses or vans by the first and second respondents for use in Sydney to transport people to Barangaroo or Harold Park. Counsel for the Commissioner submitted that the forensic purpose of requiring documents answering this description be produced is that they may support evidence the Commissioner expects to adduce of buses arriving at the Barangaroo site and Harold Park site during 13 to 17 February 2015. Counsel for the Commissioner submits that the documents, if they exist, will be relevant to showing that the first and second respondents organised for persons to be transported to those sites. That, in turn, would be relevant to the allegation made in paragraph 160 of the second amended statement of claim that, on 17 February 2015, the respondents named in that paragraph arranged or assisted to arrange a group of persons to congregate across the Barangaroo site access gates having the effect of blocking access to the Barangaroo site by subcontractor trucks. It would also be relevant to the allegation made in paragraph 181 of the second amended statement of claim that, on 17 February 2015, Mr Sloane arranged for striking DMG Employees not allocated to work at the Harold Park site to attend and enter the Harold Park site. The allegations made in paragraphs 160(a1) and 181 of the second amended statement of claim, unlike those made in paragraphs 76 and 107, are not limited by any particulars.

2. In my opinion the documents described in paragraphs 6 of the subpoenas, at least to the extent they call for documents that relate to the hiring of buses of vans for use on 17 February 2015, are apparently relevant to the allegations made in paragraphs 160(a1) and 181 of the second amended statement of claim. Given the asserted forensic purpose of paragraphs 6 of the subpoenas, it should be limited to calling for documents recording the hiring of buses or vans for use in Sydney to transport people to the Barangaroo site and Harold Park site on 17 February 2015. I propose to make an order so limiting paragraphs 6 of each of the subpoenas.

Paragraph 10 of subpoena issued to DMG

1. The subpoena directed to DMG (DMG subpoena) calls for the production of a number of categories of documents. The first and second respondents, however, object only to paragraph 10 of the schedule of documents referred to in the subpoena addressed to DMG that calls for documents “recording the phone numbers of employees of DMG as at 14 February 2015”. The first and second respondents object submit paragraph 10 constitutes “fishing”, and that it calls for the production of confidential documents.

2. Counsel for the Commissioner asserted that the purpose of seeking the production of the documents described in paragraph 10 of the DMG subpoena is to “cross refer” to documents that might be produced in answer to paragraphs 2 of each of the subpoenas issued to the first and second respondents. Given I have concluded that paragraphs 2 of those subpoenas are to be set aside, it necessarily follows that the purpose stated by counsel is not a legitimate purpose. Paragraph 10 of the DMG subpoena, therefore, should also be set aside.

Disposition

1. I propose to:

   a)set aside paragraphs 2, 3 and 4, of each of the subpoenas issued to the first and second respondents;

   b)set aside paragraph 6 of each of the subpoenas issued to the first and second respondents to the extent the paragraphs call for the production of documents recording the hiring of buses or vans for use in Sydney to transport people to Barangaroo on 13, 14, and 16 February 2015; and

   c)set aside paragraph 10 of the subpoena issued to DMG.

2. I will reserve the question of costs.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  12 January 2018