Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union and Ors (No.6)

[2018] FCCA 2134

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION & ORS (No.6) [2018] FCCA 2134

Catchwords:
PRACTICE AND PROCEDURE – Application to set aside subpoena – whether subpoena issued for legitimate forensic purpose – whether subpoena seeks discovery – whether subpoena seeks the production of documents not relevant or apparently relevant to any issue in the proceeding – subpoena set aside.

Legislation:

Federal Circuit Court Act 1999 (Cth), s.45

Cases cited:

Attorney-General (NSW) v Chidgey [2008] NSWCCA 65
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union & Ors (No.3) [2018] FCCA 34
Bengalla Mining Co Pty Ltd v Barclay Mowlem Construction Ltd [2001] NSWSC 93
Caroll v Attorney-General (NSW) (1993) 70 A Crim R 162

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 date: 25 July 2018

Date of Last Submission: 25 July 2018

Delivered at: Sydney

Delivered on: 08 August 2018

REPRESENTATION

Counsel for the Applicant: Mr M White SC

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

No appearance by or on behalf of the Thirteenth Respondent

ORDERS

1. The subpoena addressed to the Proper Officer, Australian Building and Construction Commission issued on 4 June 2018 (Subpoena) is set aside.

2. The costs of the application to set aside the Subpoena 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. The applicant (ABCC) applies to set aside a subpoena for production addressed to the applicant (Subpoena) that was issued by the Court on 4 June 2018 on the application of the first and second respondents (collectively CFMEU). The CFMEU opposes the ABCC’s application, and the third to tenth and fourteenth respondents (other respondents) support the CFMEU’s opposition to the ABCC’s application.[1]

   [1] The thirteenth respondent did not wish to be heard on the application.

The Subpoena

1. The Subpoena calls for the production of documents described in 35 paragraphs set out in the schedule to the Subpoena (Schedule). Without admitting the validity of the Subpoena, the ABCC informed the CFMEU that the ABCC does not hold any documents described in paragraphs 22, 23, 25, 26, 27, 28, 29, and 30 of the Schedule. The CFMEU accepts this, which means there is no issue I need to decide on this application in relation to the documents that fall within those paragraphs of the Schedule.

2. Counsel for the ABCC classified the remaining paragraphs of the Schedule into four groups; and the parties to a large extent have directed their submissions on the basis of this grouping.  The first group consists of the documents described in paragraphs 1 to 9 of the Schedule (Group 1 documents). These are as follows:

   1. Record of Decision to Investigate the factual matters described in the Statement of Claim in SYG332 of 2016.

   2. ABCC Running Sheet in respect of the investigation dealing with the factual matters described in the Statement of Claim in SYG332 of 2016.

   3. All documents referred to in the said Running Sheet in the possession of the Applicant which have not been served in the affidavits filed by the Applicant herein.

   4.All file notes stored on the ABCC internal case management system dealing with the factual matters described in the Statement of Claim in SYG332 of 2016;

   5. All statements prepared, taken or witnessed by Fair Work Building Inspectors dealing with the factual matters described in the Statement of Claim in SYG332 of 2016;

   6. any transcript or record of interview dealing with the factual matters described in the Statement of Claim in SYG332 of 2016;

   7. any investigation plan dealing with the factual matters described in the Statement of Claim in SYG332 of 2016;

   8. any evidence matrix dealing with the factual matters described in the Statement of Claim in SYG332 of 2016;

   9. All documents within the office of the ABCC authorising the Applicant to commence proceedings in the Statement of Claim in SYG332 of 2016.

3. Most of these paragraphs call for the production of documents that have been created in connection with the ABCC’s investigation (Investigation) of the matters that are the subject of this proceeding. Central to this grouping is what has been described as a case management system known as “AIMS” which the ABCC maintains and uses in connection with investigations it undertakes.[2] Under the AIMS system each investigation the ABCC undertakes is given a separate file, and that file acts as the repository of all primary records that are created in the course of or for the purpose of the investigation. AIMS permits the creation and printing out of “running sheets” which record in chronological order the events and documents created in the course of an investigation. The Group 1 documents, therefore, are documents that have been recorded in the file the ABCC has created and maintained in connection with the Investigation.

   [2] Affidavit of T McCauley, 24.07.2018, [5]

4. The second group of documents (Group 2 documents) are those described in paragraphs 10 to 21 of the Schedule:

   10. All documents recording the making of communications, oral or written, including communications using Facebook, twitter or other social media between David Armstrong and Jared O’Connor, David Robertson, Mr Walker-Munro, Yehia Ahmed, Giulietta Siciliano and Assistant Police Commissioner Clark on 13, 14, 15, 16 and 17 February 2015 dealing with factual matters described in the Statement of Claim SYG332 of 2016.

   11. All documents recording the making of communications, oral or written, including communications using Facebook, twitter or other social media between Jared O’Connor, and David Armstrong, David Robertson, Mr Walker-Munro, Yehia Ahmed, Giulietta Siciliano and Assistant Police Commissioner Clark on 13, 14, 15, 16 and 17 February 2015 dealing with factual matters described in the Statement of Claim SYG332 of 2016.

   12. All documents recording the making of communications, oral or written, including communications using Facebook, twitter or other social media between David Robertson, and David Armstrong, Jared O’Connor, Mr Walker-Munro, Yehia Ahmed, Giulietta Siciliano and Assistant Police Commissioner Clark on 13, 14, 15, 16 and 17 February 2015 dealing with factual matters described in the Statement of Claim SYG332 of 2016.

   13. All documents recording the making of communications, oral or written, including communications using Facebook, twitter or other social media between Mr Walker-Munro and David Armstrong, Jared O’Connor, David Robertson, Yehia Ahmed, Giulietta Siciliano and Assistant Police Commissioner Clark on 13, 14, 15, 16 and 17 February 2015 dealing with factual matters described in the Statement of Claim SYG332 of 2016.

   14. All documents recording the making of communications, oral or written, including communications using Facebook, twitter or other social media between Yehia Ahmed and David Armstrong, Jared O’Connor, Mr Walker-Munro, David Robertson, Giulietta Siciliano and Assistant Police Commissioner Clark on 13, 14, 15, 16 and 17 February 2015 dealing with factual matters described in the Statement of Claim SYG332 of 2016.

   15. All documents recording the making of communications, oral or written, including communications using Facebook, twitter or other social media between Giulietta Siciliano and David Armstrong, Jared O’Connor, Mr Walker-Munro, Yehia Ahmed, David Robertson, and Assistant Police Commissioner Clark on 13, 14, 15, 16 and 17 February 2015 dealing with factual matters described in the Statement of Claim SYG332 of 2016.

   16. All documents recording the contents of communications, oral or written, including communications using Facebook, twitter or other social media between David Armstrong and Jared O’Connor, David Robertson, Mr Walker-Munro, Yehia Ahmed, Giulietta Siciliano and Assistant Police Commissioner Clark on 13, 14, 15, 16 and 17 February 2015 dealing with factual matters described in the Statement of Claim SYG332 of 2016.

   17. All documents recording the contents of communications, oral or written, including communications using Facebook, twitter or other social media between Jared O’Connor, and David Armstrong, David Robertson, Mr Walker-Munro, Yehia Ahmed, Giulietta Siciliano and Assistant Police Commissioner Clark on 13, 14, 15, 16 and 17 February 2015 dealing with factual matters described in the Statement of Claim SYG332 of 2016.

   18. All documents recording the contents of communications, oral or written, including communications using Facebook, twitter or other social media between David Robertson, and David Armstrong, Jared O’Connor, Mr Walker-Munro, Yehia Ahmed, Giulietta Siciliano and Assistant Police Commissioner Clark on 13, 14, 15, 16 and 17 February 2015 dealing with factual matters described in the Statement of Claim SYG332 of 2016. 

   19. All documents recording the contents of communications, oral or written, including communications using Facebook, twitter or other social media between Mr Walker-Munro and David Armstrong, Jared O’Connor, David Robertson, Yehia Ahmed, Giulietta Siciliano and Assistant Police Commissioner Clark on 13, 14, 15, 16 and 17 February 2015 dealing with factual matters described in the Statement of Claim SYG332 of 2016.

   20. All documents recording the contents of communications, oral or written, including communications using Facebook, twitter or other social media between Yehia Ahmed and David Armstrong, Jared O’Connor, Mr Walker-Munro, David Robertson, Giulietta Siciliano and Assistant Police Commissioner Clark on 13, 14, 15, 16 and 17 February 2015 dealing with factual matters described in the Statement of Claim SYG332 of 2016. 

   21. All documents recording the contents of communications, oral or written, including communications using Facebook, twitter or other social media between Giulietta Siciliano and David Armstrong, Jared O’Connor, Mr Walker-Munro, Yehia Ahmed, David Robertson, and Assistant Police Commissioner Clark on 13, 14, 15, 16 and 17 February 2015 dealing with factual matters described in the Statement of Claim SYG332 of 2016.

5. The persons named in these paragraphs, other than Assistant Police Commissioner Clark and Mr Siciliano, are said to be ABCC inspectors or more senior employees of the ABCC, and Mr Siciliano is said to be a “former long-standing employee”.[3]

   [3] Outline of Submissions for First and Second Respondents (The Respondents) on the Applicant in the Case Dated 20 June 2017 [sic]” (CFMEU Outline Submissions)

6. The third group of documents (Group 3 documents) are the documents described in paragraph 24 of the Schedule, being the originals “of all notebook entries made by Graham Littlejohn on 13, 14, 15, 16 and 17 February 2015”. The CFMEU accepts that the documents called for by paragraph 24 of the Schedule are annexed to the affidavit of Mr Littlejohn, and so the CFMEU do not press paragraph 24.

7. The fourth group of documents (Group 4 documents) are those set out in paragraphs 31 to 35 of the Schedule:

   31. Any electronic records of interviews and signed or unsigned statements of persons including, but not limited to, Serge Ciaschetti, Ross Trethewy, James McLean, Nicola Titone, James Crouch, Paul Young, Leonardo Barbera,  Louis Mazzarolo,  Paul Iann, Christopher Blanchard,  Gaby Daher,  Tony Stanghieri,  Andrew Saad and Kirsty Corby, dealing with factual matters described in the Statement of Claim SYG332 of 2016.

   32. All documents setting out any communication by Serge Ciaschetti, Ross Trethewy, James McLean, Nicola Titone, James Crouch, Paul Young, Leonardo Barbera, Louis Mazzarolo, Paul Iann, Christopher Blanchard, Gaby Daher, Tony Stanghieri, Andrew Saad, Kirsty Corby with David Armstrong, Jared O’Connor, David Robertson, Mr Walker-Munro, Yehia Ahmed or Giulietta Siciliano or any other employee of the applicant dealing with factual matters described in the Statement of Claim SYG332 of 2016.

   33. All documents setting out any communication to Serge Ciaschetti, Ross Trethewy, James McLean, Nicola Titone, James Crouch, Paul Young, Leonardo Barbera, Louis Mazzarolo, Paul Iann, Christopher Blanchard, Gaby Daher, Tony Stanghieri, Andrew Saad, Kirsty Corby by David Armstrong, Jared O’Connor, David Robertson, Mr Walker-Munro, Yehia Ahmed or Giulietta Siciliano or any other employee of the applicant dealing with factual matters described in the Statement of Claim SYG332 of 2016.

   34. All s.712 Notices served in relation to factual matters described in the Statement of Claim SYG332 of 2016.

   35. All documents produced to the Applicant in response to any s.712 Notices served in relation to factual matters described in the Statement of Claim in SYG332 of 2016.

8. The persons identified in the documents that comprise the Group 4 documents are persons identified in the outline submissions of counsel for the CFMEU under the heading “Proposed List of Applicant’s Witnesses”.

Principles

1. I discussed some of the principles relating to subpoenas in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union & Ors (No.3),[4] and no party on the application before me has submitted that what I there said is incorrect. For the purposes of these reasons, therefore, I assume that what I there said is correct. Counsel for the ABCC, however, relies on the judgment of Beazley JA (as her Honour then was) in Attorney-General (NSW) v Chidgey,[5] and it would be useful to set out in these reasons the principles discussed by her Honour on which counsel for the ABCC relies.

   [4] [2018] FCCA 34 at [6]-[11]

   [5] [2008] NSWCCA 65 (Kirby and James JJ agreeing)

2. Chidgey concerned the issuing of a subpoena in the course of a committal proceeding directed to the Commissioner of Police requiring the production of documents that were completed in accordance with the Law Enforcement (Controlled Operations Act) 1997 (NSW), as well as documents relevant to the seeking of approval for a controlled operation under that Act. Before the Magistrate the accused contended that the purpose of issuing the subpoena was to obtain information that “will assist the accused’s defence insofar as they go to challenging the admissibility of evidence pursuant to s.138(1)(b) of the Evidence Act 1995”.[6] The Magistrate held that this did not disclose a legitimate forensic purpose, but the Magistrate identified a different purpose that his Honour found to be legitimate; and that was so that the accused “can check that there has been compliance with form”.[7]

   [6] [2008] NSWCCA 65, [6].That section deals with the admissibility of improperly or illegally obtained evidence.

   [7] [2008] NSWCCA 65, [12]

3. Beazley JA (with whose judgment Kirby and James JJ agreed) held that that did not disclose a legitimate forensic purpose. Her Honour said that to establish that a purpose is a legitimate forensic purpose it is not sufficient to establish that the documents are relevant. Her Honour referred to the judgment of Mahoney AP in Caroll v Attorney-General (NSW),[8] including passages that included the following:[9]

   . . . . . the court must, in general, be satisfied that the documents are relevant to an issue for decision by the court in the litigation. It is not open to a party, as on a ‘fishing expedition’, to subpoena documents merely in order to determine whether they may be relevant and may be of assistance to his case in the proceeding. . . . But, in my opinion, it is not sufficient for a party subpoenaing the document to say ‘the document is relevant because, if it does anything, it establishes the case against me’. He must be able to indicate that the document is relevant in the sense that it may assist his case. In the present case, that could not be claimed. Nor was it shown. At best, the claim was: ‘I wish to see the document to see if it may assist my case.’ That, in my opinion, is not sufficient.

   [8] (1993) 70 A Crim R 162

   [9] [2008] NSWCCA 65, [59], and [60] (emphasis added by Beazley JA)

4. Beazley JA found that the purpose for issuing the subpoena that had been asserted as legitimate on behalf of the accused amounted “to no more than a proposition that the respondent was entitled to engage in a “fishing expedition” to ascertain whether there had been compliance with s 5(2A)”, and it was a fishing expedition because there “was no material before the magistrate to indicate that there had been, or might have been non-compliance with s 5(2A)”.[10]

   [10] [2008] NSWCCA 65, [84]

Legitimate forensic purpose?

1. In their submissions counsel for the CFMEU, and Mr McCauley, who appeared for the other respondents, proceed on the assumption that a legitimate forensic purpose will be demonstrated if the documents described in the Schedule are relevant or apparently relevant. Their submissions, therefore, are directed to seeking to demonstrate that the documents called for by the Subpoena are relevant or apparently relevant to an issue or issued in the proceeding.

Group 1 documents

1. In relation to the documents described in paragraphs 1, 2, and 3 of the Schedule, it is apparent that counsel for the CFMEU expects that the documents described in those paragraphs will include the running sheets and file notes by the ABCC’s employees and will be of a “high degree of relevance to the contemporaneous and later statements by the witnesses that are to be led in evidence by the applicant”[11] and “contrary statements by other persons who have not been called or interviewed;[12] and that these documents are “may well assist in formulating the cross examination of the witnesses of the applicant”, particularly in relation to “the consistency or inconsistency between contemporaneous statements and subsequent affidavits”.[13] The documents are said to be relevant to “[a]nother important issue”, namely “whether the witnesses have given independent accounts of the events from which the production has arisen, or whether their accounts have been based on the accounts of others”.[14] Finally, the documents are said to be relevant “to the admissibility of evidence whether the FWBI Act [that is, the Fair Work Building Industry Act 2012 (Cth)] has been complied with during the investigation”.[15]

   [11] CFMEU Outline Submissions, [26]

   [12] CFMEU Outline Submissions, [27]

   [13] CFMEU Outline Submissions, [26]

   [14] CFMEU Outline Submissions, [29]

   [15] CFMEU Outline Submissions, [31]

2. In relation to the documents described in paragraphs 5 and 6 of the Schedule, they are said to be relevant for the same reasons the documents described in paragraphs 1, 2, and 3 of the Schedule are said to be relevant.[16] Counsel reiterated that “the consistency of affidavits and any oral evidence, or further oral evidence, against any prior statements, transcripts of interview and draft statements is highly relevant to the cross-examination to be conducted of those witnesses”.[17]

   [16] CFMEU Outline Submissions, [32]

   [17] CFMEU Outline Submissions, [33]

1. In relation to the documents described in paragraphs 4, 7, and 8 of the Schedule, they are said to be relevant for the reasons the documents described in paragraphs 1, 2, and 3 of the Schedule are said to be relevant.[18]

   [18] CFMEU Outline Submissions, [37]

2. The documents described in paragraph 9 of the Schedule are said to be relevant to the allegation made in paragraph 1(c) of the second amended statement of claim. It is there alleged that “The Applicant was . . . by operation of s59C of the FWBI Act and s539 items 4, 11 and 25 of the Fair Work Act 2009 . . . eligible to bring these proceedings”. It is submitted that the CFMEU does not admit the ABCC’s eligibility to bring the proceeding or that any decision exists under the FWBI Act to initiate proceedings and, for that reason, “it is an issue in the proceeding for the applicant to establish authorization to commence proceeding”.

3. Mr McCauley supported the submissions made by counsel for the CFMEU, and made additional submissions to the effect that the documents called for by the Subpoena, and particularly the running sheets, are relevant.

4. In his written submission counsel for the ABCC submitted that the CFMEU seeks the production of documents on a basis that is broader than would be permissible under discovery. Counsel also submitted that the Group 1 documents are not directed to “any identified issue joined in the proceedings”.[19] In oral address counsel for the ABCC relied on the judgment and reasoning of Beazley JA in Chidgey.

   [19] Applicant’s Submissions in Support of Application in a Case to set aside Subpoena Dated 20 June 2018, [24]

5. It will be apparent that the only purpose for which the CFMEU seeks the documents described in Group 1 is that they are relevant or apparently relevant. That by itself, however, does not disclose any legitimate forensic purpose. At most, to use the words Beazley JA used in Chidgey, the purpose for which the CFMEU seeks the production of the documents described in paragraphs 1 to 8 of the Group 1 documents amounts to no more than a proposition that the documents may assist the CFMEU; that the documents may assist them because they may reveal inconsistencies of what witnesses the ABCC intends to call are recorded to have said during the Investigation and they may afford a basis for the CFMEU at the trial to explore with the witnesses the extent to which their evidence is the product of their own memory or the product of other persons’ reports; and that they may identify the existence of persons who may be in a position to give relevant evidence but whom the ABCC does not intend to call.

6. As for the documents described in paragraph 9 of the Schedule, it cannot even be said that they might be relevant to any issue. The only issue to which that the CFMEU’s non-admission of paragraph 1 of the second amended statement of claim has given rise is whether the applicant is eligible to bring this proceeding “by operation of s59C of the FWBI Act and s539 items 4, 11 and 25 of the Fair Work Act 2009 . . . eligible to bring these proceedings”. Whether or not “any decision exists under the former FWBI Act to initiate proceedings”[20] is not an issue that arises from the non-admission of paragraph 1(c) of the second amended statement of claim.

   [20] CFMEU Outline Submissions, [38]

7. There is at least another difficulty with the Group 1 documents. Paragraphs 2, 4, 5, 6, 7, and 8 of the Schedule each purports to identify the documents to be produced by the use of the words “dealing with the factual matters described in the Statement of Claim”. These words require the ABCC “to make a judgment as to which documents relate to issues joined in the proceedings”.[21] In other words, these paragraphs seek discovery of documents, something the CFMEU cannot require of the ABCC without the Court first making a declaration under s.45 of the Federal Circuit Court Act 1999 (Cth).

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

8. For these reasons, paragraphs 1 to 9 of the Schedule must be set aside.

Group 2 documents

1. In his written submissions counsel for the CFMEU submits that these documents are relevant to “whether the ABCC witnesses have given independent accounts of the events, or whether their accounts have been based on, or contaminated by the accounts of others”; and that “contemporaneous material sought concerning their interaction on social media with each other is likely [to] assist in formulating the testing and cross examination of the ABCC witnesses about these questions”.[22] These submissions are premised on the view that a legitimate forensic purpose will be demonstrated if the documents can be said to be relevant or apparently relevant.

   [22] CFMEU Outline Submissions, [46]

2. Each of the Group 2 documents suffers from the same vice as the documents described in paragraphs 1 to 8 of the Schedule. First, relevance or apparent relevance is not enough. Again, to use the words Beazley JA used in Chidgey, the purpose for which the CFMEU seeks the production of the Group 2 documents amounts to no more than a proposition that the documents may assist CFMEU and the other respondents. Second, each paragraph describing the Group 2 documents purports to identify the documents by the use of the words “dealing with the factual matters described in the Statement of Claim”. These words require the ABCC “to make a judgment as to which documents relate to issues joined in the proceedings”,[23] and, for that reason, impermissibly seek discovery of documents.

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

3. For these reasons paragraphs 10 to 21 of the Schedule must also be set aside.

Group 3 documents

1. As I have already noted, the CFMEU also accepts the documents called for by paragraph 24 of the Schedule are annexed to the affidavit of Mr Littlejohn, and so the CFMEU do not press paragraphs 24.

Group 4 documents

1. Counsel for the CFMEU submits that these documents are relevant for the reasons counsel submits the documents described in paragraphs 1, 2, and 3 of the Schedule are relevant. That the Group 4 documents may be relevant or apparently relevant does not by itself demonstrate a legitimate forensic purpose. At most the purpose for which the Group 4 documents are sought to be produced is that they may assist the CFMEU. The Group 4 documents suffer from the additional vice that arises from their purporting to describe the documents that comprise the Group 4 documents by reference to the expression “dealing with factual matters described in the Statement of Claim”. As I have already held, this expression requires the ABCC to form a judgment as to which documents relate to an issue in the proceedings, and, for that reason, impermissibly seek discovery.

2. For these reasons, paragraphs 31 to 35 of the Schedule must also be set aside.

Disposition

1. I have concluded that all paragraphs of the Schedule, other than paragraphs 22, 23, 25, 26, 27, 28, 29, and 30 must be set aside. Given the CFMEU accepts the ABCC does not have documents that fall within paragraphs 22, 23, 25, 26, 27, 28, 29, and 30, and that the CFMEU does not press paragraph 24 of the Schedule, the appropriate means of disposing of the ABCC’s application in a case is to set aside the Subpoena. That is what I propose to do. I also propose to reserve costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 08 August 2018