Australian Building and Construction Commissioner v Rielly
[2022] FedCFamC2G 249
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Australian Building and Construction Commissioner v Rielly [2022] FedCFamC2G 249
File number(s): SYG 825 of 2021 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 8 April 2022 Catchwords: FAIR WORK – Practice and procedure – objection to producing documents called by subpoena – whether legitimate forensic purpose for ordering production of documents – no legitimate purpose – subpoena set aside. Legislation: Fair Work Act 2009 (Cth) s 500
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2021 (Cth) rr 1.07, 14.10
Federal Court Rules 2011 (Cth) rr 20.31(1), 30.28(1)
Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2019] FCA 2087
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining And Energy Union (Pacific Highway Upgrade Case) [2021] FedCFamC2G 248
Commissioner of Police, NSW Police Force v Ritson [2020] FCCA 1803
Oztech Pty Ltd v Public Trustee of Queensland (No 10) [2016] FCA 970
Division: Fair Work Number of paragraphs: 24 Date of hearing: 30 March 2022 Counsel for the Applicant: Mr D Chin SC and Mr C Parkin Solicitor for the Applicant: Ashurt Counsel for the First and Second Respondents: Mr R Reitano Solicitor for the First and Second Respondents: Taylor & Scott Lawyers Third Respondent: No appearance by or on behalf of the Third Respondent ORDERS
SYG 825 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Applicant
AND: DEAN LESLEY RIELLY
First Respondent
PAUL FITZPATRICK
Second Respondent
CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION
Third Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
8 APRIL 2022
THE COURT ORDERS THAT:
1.The subpoena for production issued on the application of the first and second respondents on 17 November 2021 is set aside.
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
INTRODUCTION
In these reasons for judgment I consider whether I should compel the applicant (ABCC) to produce documents described in a subpoena for production that was issued on the application of the first and second respondents (respondents). The principal question is whether the respondents have established there is any legitimate forensic purpose attached to the subpoena.
BACKGROUND
The question whether I should order the production of documents called for by the subpoena arises in a proceeding the ABCC commenced against the respondents and the third respondent (CFMMEU) in which the ABCC alleges that each of the respondents, and, through them, the CFMMEU, contravened s 500 of the Fair Work Act 2009 (Cth) (FW Act). The acts constituting the contravention are alleged to have occurred on 8 April 2020 at a construction site at Butler Street in Armidale (Site). In broad terms the ABCC alleges that the respondents improperly entered the Site, they improperly ignored health and safety requests issued by those responsible for health and safety on the Site, and they acted improperly by pushing past persons responsible for supervising work on the Site. The ABCC also alleges the first respondent acted improperly by blocking access.
The respondents filed a defence to the amended statement of claim in which they respond to a number of allegations. The respondents, however, have responded to a number of paragraphs by stating they do not plead “on the basis of his privilege against penalty”. They have pleaded in this manner consistently with what has been held are the rights of a respondent in a civil proceeding not to be compelled to plead in the manner otherwise required by the rules of pleading in relation to allegations which, if admitted, might expose the respondent to a penalty.[1]
[1] See MacDonald v Australian Securities and Investments Commission [2007] NSWCA 304; Hadgkiss v Construction, Forestry, Mining and Energy Union [2005] FCA 1453, at [34]; A & L Silvestri Pty Ltd (ACN 052 514 799) v Construction, Forestry, Mining and Energy Union [2005] FCA 1658, at [17]
On 9 July 2021 I ordered that the ABCC file and serve his affidavit and any other evidence on which he intended to rely. The ABCC did so. Particularly relevant is the affidavit made by Mr Wilkinson on 30 August 2021. Mr Wilkinson is an Australian Building and Construction Inspector with the ABCC (ABC Inspector), having been so appointed under s 66 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act). He deposes that in his role as an ABC Inspector he was involved, as one of a team of inspectors, in investigating the conduct that occurred at the Site on 8 April 2020 (Investigation). Mr Wilkinson’s involvement included interviewing witnesses and obtaining relevant documents, including documents produced in response to notices he issued under s 77 of the BCIIP Act. In paragraph 4 of his affidavit Mr Wilkinson deposes as follows:
As part of my role as an ABC Inspector, I have access to the ABCC’s records relating to the Investigation. I have reviewed and accessed those records for the purposes of preparing this affidavit. The documents set out below were obtained from those records unless otherwise stated.
In the remaining part of his affidavit Mr Wilkinson identifies notices to produce issued to a number of entities, and searches he had conducted, and he annexes to his affidavit the documents that had been produced in response to the notices to produce, and documents recording the results of the searches he had undertaken.
By letter dated 16 September 2021 to Ashurst, the ABCC’s lawyers, Mr McCauley, the respondents’ lawyer, referred to Mr Wilkinson having referred in his affidavit to “the ABCC’s records relating to the investigation”, and said that the respondents “seek production by your client of the ABCC’s records relating to the investigation”. By letter dated 8 October 2021 to Mr McCauley, Ashurst responded to Mr McCauley’s letter of 16 September 2021 noting that Ashurst inferred that the respondents requested “the ABCC’s records relating to the Investigation” pursuant to r 14.10 of the “Federal Circuit Court Rules 2001”, which I assume is intended to be a reference to r 14.10 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2021 (Cth) (GFL Rules). Rule 14.10 of the GFL Rules is as follows:
(1) If a document or affidavit filed by a party refers to another document, another party may request the party in writing for a copy of the document or to produce it for inspection.
(2) The party requested to provide a copy of, or produce, a document must, within 4 days of the request, in writing to the party making the request:
(a) provide a copy of the document or appoint a time within 7 days, and a place where, it may be inspected; or
(b) claim that the document is privileged from production and state the grounds; or
(c) state that the document is not in the possession, custody or control of the party to whom the request was made and state that party’s knowledge, information or belief about its whereabouts.
Ashurst said that a request for documents pursuant to r 14.10 of the GFL Rules must have a legitimate forensic purpose, including that the documents requested must be apparently relevant to the matters in issue.[2] Ashurst said their instructions are that the only records relating to the Investigation Mr Wilkinson reviewed and accessed were the documents referred to in his affidavit and, for that reason, “there is no more to produce pursuant to rule 14.10 than the documents annexed”. Ashurst also noted that in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (No 2) (FCA Decision),[3] Rares J set aside a subpoena that sought the production of the ABCC’s investigation file on the ground that it amounted to fishing.
[2] Ashurst referred to Commissioner of Police, NSW Police Force v Ritson [2020] FCCA 1803, at [23]-[37] (Judge Cameron), and Oztech Pty Ltd v Public Trustee of Queensland (No 10) [2016] FCA 970, at [42]-[43] (Yates J)
[3] Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2019] FCA 2087
Mr McCauley responded by letter dated 22 October 2021.
We are instructed that the documents our clients seek to have produced have a legitimate forensic purpose because they are apparently relevant to the issues in the proceedings having been collected in the course of an investigation giving rise to the proceedings. They will be relevant to cross examination of your client's witnesses who have given evidence that arise from the very same investigation. The documents also have apparent relevance to the case your client advances.
On that basis it will be obvious that any running sheets, file notes, witness statements whether in draft or final form and any transcripts or records of interview held by your client concerning the matter have apparent relevance.
We note your “instructions” about what Mr Wilkinson has told you and will deal with issues concerning those "instructions" when Mr Wilkinson is cross-examined. We seek production of all documents produced by Richard Crookes in answer to the notice to produce, or otherwise in respect of the investigation to which Mr Wilkinson refers in his affidavit. We are entitled to test Mr Wilkinson's affidavit and are entitled to test that, so it now appears, by reference to his review of those documents and his apparent “instructions” to you.
Finally, we note that Inspector Wilkinson deposes to issuing multiple "notices to produce pursuant to s.77 of the BCIIP Act". His reference to them gives the apparent relevance to the issues in the case especially because we wish to test that evidence.
We will make an application to the Court for discovery in the event that you choose not to produce the documents voluntarily, but it would seem to us to be a much more sensible course and a more prudent use of resources for your client to produce the documents. So much would seem to follow from your client's position as a taxpayer-funded body and in its position as the putative model litigant.
The respondents did not apply for discovery, as Mr McCauley foreshadowed. Instead, the respondents applied for the issue of a subpoena directed to the ABCC. The subpoena calls for documents described in 5 paragraphs. Counsel for the respondents, however, accepted that the documents described in paragraphs 3, 4, and 5 are documents that, if they exist, would fall within the documents described in paragraph 2, that description being:
The “ABCC’s records relating to the investigation.” referred to by ABCC Inspector Derek John Wilkinson at paragraph 7 of his affidavit dated 30 August 2021 and filed by the ABCC in these proceedings, but not including any documents filed and served by the Applicant in SYG825/2021;
PARTIES’ SUBMISSIONS
The respondents, in effect, submit that the subpoena should be treated as a means for enforcing the obligation they submit attached to the ABCC when Mr McCauley, by his letter dated 16 September 2021, requested the production of the ABCC investigation file. That obligation arose under r 14.10 of the GFL Rules. Alternatively, the respondents submit that the ABCC should be compelled to produce the ABCC investigation file because they have apparent relevance, particularly when regard is had to the evidence the ABCC has filed. The respondents’ contention that the documents have apparent relevance is based on what Mr Wilkinson says about them. Mr Wilkinson says he has access to the ABCC’s records relating to the “Investigation”, which Mr Wilkinson defines as the investigation of “the conduct of two officials of the” CFMMEU who attended the Site on 8 April 2020; and that Mr Wilkinson has reviewed and accessed those documents for the purpose of preparing his affidavit. The respondents in effect submit that it is open to infer, and it should be inferred, that Mr Wilkinson’s selection constituted but a subset of otherwise relevant documents.
The ABCC, on the other hand, submits the subpoena is essentially indistinguishable from the subpoena Rares J set aside in the FCA decision, and the subpoena Judge Humphreys set aside in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining And Energy Union (Pacific Highway Upgrade Case).[4] The ABCC also submits that, whether the documents called for by the subpoena will be relevant is entirely a matter of speculation. Finally, the ABCC submits that the fact documents may be referred to in an affidavit does not necessarily mean the Court will apply r 14.10 of the GFL Rules. Rule 14.10 of the GFL Rules is always subject to the Court controlling its own process. That means that r 14.10 of the GFL Rules can, or should, only be applied to referred documents that have an apparent relevance to an issue in the proceeding. The ABCC relies on the judgment of Yates J in Oztech Pty Ltd v Public Trustee of Queensland (No 10),[5] and the judgment of Judge Cameron in Commissioner of Police, NSW Police Force v Ritson.[6]
[4] Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining And Energy Union (Pacific Highway Upgrade Case) [2021] FedCFamC2G 248
[5] Oztech Pty Ltd v Public Trustee of Queensland (No 10) [2016] FCA 970, at [41]-[43]
[6] Commissioner of Police, NSW Police Force v Ritson [2020] FCCA 1803, at [23]-[37]
Two questions arise. The first is whether, as the respondents submit, r 14.10 of the GFL Rules, once engaged in relation to a document, obliges the person to produce the document without regard to whether the document is relevant or apparently relevant to any issue in the proceeding. Assuming that question is answered in the negative, the second question is whether the documents in the ABCC file are apparently relevant to any issue in the proceeding.
IS r 14.10 SUBJECT TO THE REFERRED DOCUMENTS HAVING APPARENT RELEVANCE?
I begin with the text of r 14.10 of the GFL Rules. The meaning and effect of the text is clear. Subrule 14.10(1) provides that if a document or affidavit a party files refers to another document or documents (referred documents), another party may request in writing the party of who filed the document or affidavit to produce the referred documents. Subrule 14.10(2) then provides that the person receiving the written request “must” provide a copy of the referred documents, or make them available for inspection, unless any one of the circumstances identified in r 14.10(2) apply. None of those circumstances is the referred documents not having apparent relevance. One explanation for this omission may be that r 14.10 assumes that a party who refers to a document in a pleading or affidavit intends to rely on it, and, as a matter of fairness, the contents of the document should be produced to the other party or parties in the proceeding.
Even though r 14.10(2) of the GFL Rules does not include lack of apparent relevance as a reason for not producing documents, Yates J in Oztech held or proceeded on the basis that documents to which a rule such as r 14.10 applies need not be produced if they would not be liable to be produced in answer to a subpoena because there would be no legitimate forensic purpose attached to the issue of the subpoena. In Oztech the respondent sought the production of documents by means of a notice to produce issued under r 30.28(1) of the Federal Court Rules 2011 (FC Rules), and also by means of a notice issued under r 20.31(1) of the FC Rules, being equivalent to r 14.10 of the GFL Rules. Yates J considered the objections to the two notices to produce because they involved, “essentially, the same subject matter, namely the requirement to produce certain innominate files”.[7] Having found there was no apparent relevance to the document called by the notice to produce issued under r 30.28 of the FC Rules, Yates J found the notice issued under r 20.31(1) of the FC Rules “can stand in no better position” and, therefore, as with the notice to produce issued under r 30.28 of the FC Rules, the applicant was required to establish the apparent relevance of the documents called for by the notice issued under r 20.31(1) of the FC Rules. The only justification his Honour gave for this conclusion is the principle that “the Court retains control over its process”.[8]
[7] Oztech Pty Ltd v Public Trustee of Queensland (No 10) [2016] FCA 970, at [2]
[8] Oztech Pty Ltd v Public Trustee of Queensland (No 10) [2016] FCA 970, at [43]
Yates J did not identify how the principle that the Court retains control over its process applies to a rule such as r 14.10 which, except in the circumstances provided for in the rule, requires a party to make referred documents available for inspection on receiving a notice from another party that he or she do so. Those means are to be found in r 1.07(1) of the GFL Rules, which provides that the “Court may in the interests of justice dispense with compliance, or full compliance, with any of these Rules at any time”. That referred documents are not apparently relevant may be a reason for the Court exercising its power under r 1.07(1) of the GFL Rules to dispense with compliance, or full compliance, with r 14.10 of the GFL Rules.
There is a difference between approaching the absence of apparent relevance of referred documents on the basis Yates J approached that question in Oztech, and by approaching it on the basis of an order under r 1.07(1) dispensing with compliance with r 14.10 of the GFL Rules; and the difference relates to the onus of proof. On the approach of Yates J in Oztech the onus is on the party calling for the production of the referred documents to establish the documents have an apparent relevance to an issue in the proceeding, whereas the onus will be on the person who has identified the referred documents to show they are not apparently relevant and, for that reason, an order should be made dispensing with compliance with r 14.10 of the GFL Rules.
This Court is bound by Oztech; and, in any event, in Ritson Judge Cameron, following Oztech, said:[9]
The Rules have been drawn in a stripped-down style and are not nuanced by many of the qualifications and items of detail found in the rules of other courts. Relevantly for present purposes, r.14.10 does not provide a mechanism for a party to object to producing documents requested under that rule. However, when presented with a contested refusal to accede to a request made under r.14.10, the Court would not compel production if to do so would serve no legitimate forensic purpose. In such a vein Gross LJ said of the new rule in the English Civil Procedure Rules:
· …the right to inspect under CPR r 31.14 is not, however, unqualified; it is instead subject to CPR rules-based limits, which may be invoked by the party resisting inspection—the burden resting on that party to justify displacing the general rule. Thus, “proportionality” is part of the overriding objective in CPR
r 1.1(2)(c) and, in an appropriate case, it would be open to a party to oppose inspection on the ground that it would be “disproportionate to the issues in the case”: see CPR r 31.3(2). In determining any such issue of proportionality, a court would very likely have regard to whether inspection of the documents was necessary for the fair disposal of the application or action.· National Crime Agency v Abacha & Ors [2016] 1 WLR 4375 at 4384 [30], Hamblen LJ and Sir Colin Rimer agreeing at 4392 [61] and [62].
[9] Commissioner of Police (NSW) v Ritson [2020] FCCA 1803, at [32]
ARE THE REFERRED DOCUMENTS APPARENTLY RELEVANT?
The respondents rely on the following premises for submitting the ABCC investigation file is apparently relevant.
(a)The ABCC generated documents in the course of the “Investigation”.
(b)Mr Wilkinson made a selection from those documents and, “most probably, was partial in the selection process”.
(c)Mr Wilkinson does not explain in his affidavit why he did not annex all of the documents he refers to. In particular, Mr Wilkinson does not say that the documents he has not annexed to his affidavit are not relevant, or that they will not cast light on the issues before the Court, “or that he has not been partial in his selection of documents”.
(d)Mr Wilkinson’s having referred in an affidavit to “the ABCC records relating to the investigation” “suggests they are relevant to the issues in the proceedings”.
(e)Mr Wilkinson’s reference in his affidavit to the “ABCC’s records relating to the Investigation” and to his “involvement” which “included interviewing witnesses and obtaining relevant documents” “is part of the ABCC case”; Mr Wilkinson’s interviewing witnesses and obtaining relevant documents “does seem directed at depicting the investigation in a particular light, perhaps as being complete and transparent”; and in any event “there is an issue in the proceedings about the investigation which is directly raised by Mr Wilkinson’s affidavit”.
(f)There is a “firm basis to cross-examine Mr Wilkinson as to credit which relates to the documents”. The asserted “basis” appears to be what the respondents submit is a discrepancy between what Mr Wilkinson said in his affidavit and what Ashurst said in its letter dated 8 October 2021. In his affidavit Mr Wilkinson said that he referred to the “ABCC’s records relating to the Investigation . . . for the purposes of preparing” his affidavit, whereas Ashurst, in its letter, said their instructions were that the only records relating to the Investigation Mr Wilkinson reviewed and accessed were documents “referenced in the affidavit”.
(g)“By way of context”, the respondents have applied for the issue of the subpoena in a proceeding where they have invoked their right to rely on the privilege against exposure to penalty, which means they are not required to do anything to assist the ABCC to prove the case against them. For that reason, “defining the limits of the issues are a little unhelpful as is any expectation that [the respondents] will use the opportunity to rehearse arguments that are for final hearing”.
The following may be said about the respondents’ submissions:
(a)There is no basis for submitting Mr Wilkinson’s selection of the documents annexed to his affidavit was based on any “partial” selection process, if by “partial” the respondents intend to submit there was material available to him which did not assist or even possibly disadvantaged the ABCC’s case, and Mr Wilkinson consciously decided not to annex those documents to his affidavit.
(b)The respondents do not explain why Mr Wilkinson is under some obligation to depose to his having had access to documents which he does not believe are relevant, or which he has not been advised are relevant, and it is for that reason he has not referred to or annexed such documents to his affidavit. And even if he were to depose to such matters, that may induce the respondents to rely on this as a ground to seek access to documents Mr Wilkinson would depose are not relevant for the purpose of testing whether the documents are in truth not relevant.
(c)The respondents do not explain how Mr Wilkinson’s having referred in an affidavit to “the ABCC’s records relating to the Investigation” could suggest that these documents are relevant “to the issues in the proceedings”. What documents? What issues? The respondents do not say. Further, it is almost self-evident that documents that are generated in the course of an investigation as a result of which a legal proceeding is instituted will contain documents that could not conceivably be apparently relevant to any issue in the legal proceeding. It is likely that such records would include information such as the contact details of persons whom the investigators contacted, or intended to contact; it may contain records of failed attempts to contact a person or persons; it may contain notes of a conversation or other communications with persons who give information that reveals they know nothing, or very little, about anything that is the subject of the investigation and, for that reason, cannot be relevant to the matter being investigated; or it may include records of conversations with persons to whom a notice for production had been issued for the purpose of arranging the production of the documents.
(d)The respondents do not articulate how Mr Wilkinson’s referring to the “ABCC’s records relating to the Investigation”, and to his “involvement” which “included interviewing witnesses and obtaining relevant documents”, “is part of the ABCC case”. To what part of the ABCC’s case is this relevant? How is it relevant? The respondents do not say.
(e)Let it be assumed there is a discrepancy, as the respondents submit, between Mr Wilkinson having deposed he reviewed the ABCC’s records relating to the Investigation for the purpose of preparing his affidavit, and the instructions Ashurst conveyed that the only records Mr Wilkinson reviewed and accessed were documents referenced in his affidavit. The respondents do not articulate how the production of the ABCC investigation file could conceivably assist in their cross-examining Mr Wilkinson on the discrepancy. Further, the respondents have not articulated the issue or issues to which Mr Wilkinson’s credit could be relevant. More particularly, the respondents do not identify any evidence that Mr Wilkinson may reasonably be expected to give that depends on his credit. In his affidavit Mr Wilkinson does little more than identify notices to produce he issued, searches he undertook, and the documents that he says he received as a result of these activities, which he annexed to his affidavit.
(f)The respondents do not explain why the pleadings are “a little unhelpful” to define the limits of issues only because the respondents, in the exercise of their right to invoke the privilege against exposure, have each elected not to plead to particular allegations of fact. The effect of such election is that the allegations of fact in relation to which each election relates are taken not to be admitted, and the truth of such alleged facts are part of the set of issues that arise out of the respondents’ defence to the statement of claim.
The basic difficulty the respondents face in establishing there is a legitimate forensic purpose to their seeking the production of the ABCC’s records relating to the Investigation is they necessarily rely on the premise that every record relating to the Investigation has an apparent relevance. If that were not the premise on which the respondents rely, they would have to concede that by asking for the production of the ABCC’s records relating to the Investigation they would also be asking for the production of documents that would include documents that are not apparently relevant; and if they were to concede that much, they would have to concede they have not pursued the production of all of ABCC’s records relating to the Investigation for a legitimate forensic purpose.
I do not accept that all of the ABCC’s records relating to the Investigation are apparently relevant. As I have already noted, it is almost self-evident that documents created in the course of an investigation, such as the ABCC’s records relating to the Investigation, would contain documents that would be wholly irrelevant to any issue in the proceeding. Rares J so found in the FCA case in relation to a similarly worded subpoena for production:[10]
Ordinarily, a person who contemplates bringing any legal proceeding, civil, regulatory or criminal, will investigate beforehand whether there is a case to be made. The person (including a regulator investigating whether or not to bring a civil penalty proceeding) will gather information and evidence prior to commencing such a proceeding, often in the form of statements or what evidence witnesses can give of facts in issue or that might be in issue. Thus, it can be said that it is likely that the party will have documents in hard or electronic form relating to the circumstances in which the proceeding is brought and pursued. That does not mean that the mere existence of such a file establishes that it is “on the cards” that there will be a document or documents within that file that will materially assist the other party, were a subpoena to be issued that seeks production of all documents in it. 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 and their production may lead to such assistance; Alister 154 CLR at 414, Chidgey 182 A Crim R at 551 [64], Gloucester Shire [2016] FCA 588 at [24].
[10] Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2019] FCA 2087, at [20]
I have so far proceeded on the basis that it is for the respondents to show that the ABCC’s records relating to the Investigation have an apparent relevance and, for that reason, there is a legitimate forensic purpose attached to the respondents seeking the production of those records; and I am not satisfied the respondents have demonstrated that the ABCC’s records relating to the Investigation are apparently relevant to any issue in the proceeding and, therefore, there is a legitimate forensic purpose attached to the respondents seeking their production.
Even if, however, I had approached the matter on the basis that I had to be satisfied that it was in the interests of justice that the ABCC be relieved from having to comply with r 14.10 of the GFL Rules, I would have been so satisfied. First, there is no suggestion that the ABCC intends to rely on any of the ABCC’s records relating to the Investigation other than the documents Mr Wilkinson annexes to his affidavit. That means there will be no unfairness in the respondents not being given access to documents on which the ABCC does not intend to rely. Second, I am satisfied that by calling for the production of the ABCC’s records relating to the Investigation the respondents are calling for the production of documents that would include documents that could not be relevant or apparently relevant to any issue in the proceeding; and, for that reason, I would be satisfied there is no legitimate forensic purpose attached to the respondents seeking the production of those documents.
DISPOSITION
The question that is the subject of these reasons arose on the ABCC objecting to the production of the documents called by the subpoena in question. In the ABCC’s counsels’ written submissions, the ABCC seeks an order that the subpoena be set aside. That appears to be the appropriate order by which to dispose of the question I have determined in these reasons for judgment. I therefore propose to order that the subpoena for production issued on the application of the respondents on 17 November 2021 be set aside.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 8 April 2022
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