FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUSTRALIAN BUILDING & CONSTRUCTION COMMISSIONER v CFMEU & ORS (No.5) | [2018] FCCA 1100 |
| Catchwords: PRACTICE AND PROCEDURE – Discovery – application for declaration that it is appropriate in the interests of the administration of justice that discovery be allowed – whether documents sought to be discovered are relevant – application dismissed. PRACTICE AND PROCEDURE – Objection to inspection of documents produced in answer to a subpoena – whether documents called by subpoena apparently relevant – objection dismissed. |
| Legislation: Fair Work Act 2009 (Cth) |
| Cases cited: Abahams v Qantas Airways Ltd (No.2) [2007] FMCA 639 | ||
| 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: | 18 April 2018 |
| Date of Last Submission: | 18 April 2018 |
| Delivered at: | Sydney |
| Delivered on: | 4 May 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 |
| Mention on behalf of the Thirteenth Respondent: | Mr T McCauley of Taylor & Scott Lawyers |
ORDERS
The application in a case filed by the applicant on 28 February 2018 seeking a declaration under s.45(1) of the Federal Circuit Court Act 1999 (Cth) is dismissed.
The notice of objection made by the first and second respondents to the inspection of documents produced by LongReach Pumping Services Pty Limited is dismissed.
| 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
In these reasons for judgment I consider two matters. The first is an application by the applicant (ABCC) for a declaration under s.45(1) of the Federal Circuit Court of Australia Act 1999 (Cth) (FCC Act) that it is appropriate, in the interests of the administration of justice, to allow discovery pursuant to orders that the first and second respondents (respondents) discover documents falling within particular categories of documents. The second matter is an objection by the respondents to the inspection of documents produced in answer to a subpoena served on a third party.
Most of these reasons for judgment concerns the ABCC’s application for a declaration for discovery. Before I consider the grounds on which the ABCC applies for the declaration, and the grounds on which it is opposed, it will be necessary to identify the principles that govern the exercise of the power conferred by s.45 of the FCC Act.
Application for declaration to allow discovery – principles
The source of this Court’s power to order discovery is s.45(1) of the FCC Act which provides:
Interrogatories and discovery are not allowed in relation to proceedings in the Federal Circuit Court of Australia unless the Federal Circuit Court of Australia or a Judge declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.
Subsection (2) of s.45 of the FCC Act identifies the matters to which the Court must have regard when deciding whether to make a declaration under s.45(1). These are whether allowing the discovery would be likely to contribute to the fair and expeditious conduct of the proceedings, and such other matters, if any, as the Court considers relevant.[1]
[1] In these reasons I ignore interrogatories.
As I have noted elsewhere,[2] s.45(1) of the FCC Act raises a presumption that it is not appropriate in the interests of the administration of justice to allow discovery. That presumption, however, is rebuttable. Section 45 recognises that it may be “appropriate” to allow discovery. It is necessary to bear this in mind when considering applications for a declaration under s.45 of the FCC Act. The conferral by that section of the power to declare that it is appropriate in the interests of the administration of justice to allow discovery by itself reflects an assumption that, in appropriate circumstances, discovery may not only be consistent with the objects of the FCC Act as stated in s.3 of the FCC Act, but it may advance those objects. The difficulty lies in determining in a principled way the circumstances in which it would be appropriate in the interests of the administration of justice to make a declaration under s.45 of the FCC Act.
I attempted to answer that question, at least in a general way, in Harwood v The Trustee of the Property of John Mervyn Harwood.[3] The respondents submit, however, that two judgments of the Federal Court of Australia, one decided before, and one decided after I decided Harwood, may be inconsistent with what I there said. It will be necessary, therefore, that I again attempt to identify the circumstances in which it is appropriate in the interests of the administration of justice to allow discovery. The starting point is the text of s.45 of the FCC Act itself; and the first thing to consider is the meaning of the object of the section, namely, “discovery”. Without a clear understanding of the meaning of “discovery”, and what is entailed in the Court “allowing . . . discovery”, it will not be possible to answer properly in any given case the question posed by s.45(1) of the FCC Act: is it appropriate, in the interests of the administration of justice, to allow discovery?
[3] [2015] FCCA 1058
Meaning of “discovery” and “allow . . . discovery”
The word “discovery”, although not defined in the FCC Act, is defined in the Dictionary to the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) as “an obligation to disclose”. That definition is not self-explanatory; but its meaning, at least in general terms, may readily be inferred. When the FCC Act was enacted there existed, as there currently exist, rules and, in some cases, practice notes, of Federal, State, and Territory courts that required, or provided for the relevant court by order to require, a party to search for and disclose to another party documents in the power, possession or control of the party.[4] In the context of these rules and practice notes, “discovery” denoted, as it currently denotes, the obligation of a party to litigation to search for and disclose documents in the party’s power, possession, or control, and to make documents a party discloses available for inspection by other parties in the proceeding, either under the operation of the rules of the Court or practice notes, or as a result of an order made under such rules or practice notes. The word “discovery”, as it appears in s.45 of the FCC Act, may therefore be taken to denote an obligation by a party to litigation to search for and disclose documents and make them available for inspection (discovery obligation).
[4] I briefly noted the diversity of procedures in Harwood, [2015] FCCA 1058, at [24]
The next word to consider is “allow”. That means no more than “permit”. To “allow discovery”, therefore, means to permit the Court to make an order, or to permit some rule to come into effect, that imposes a discovery obligation on a party. That presupposes the existence of a rule or set of rules that, once a declaration under s.45(1) of the FCC Act is made, either authorises the Court to make an order imposing a discovery obligation, or which operates by its terms to impose a discovery obligation on a party. That presupposition is realised in r.14.02(2) of the FCC Rules, which provides as follows:
If a declaration [under s.45 of the FCC Act] is made, the Court or a Registrar may make an order for disclosure:
(a) generally; or
(b) in relation to particular classes of documents; or
(c) in relation to particular issues; or
(d) by a specified date.
It will be seen that r.14.02(2) of the FCC Rules provides for the making of three types of disclosure orders: an order for disclosure “generally”; an order for disclosure “in relation to particular classes of documents”; and an order for disclosure “in relation to particular issues”. Thus, when read with r.14.02(2) of the FCC Rules, the expression “allow . . . discovery” in s.45(1) of the FCC Act means the making of one of the three orders for disclosure provided for by r.14.02(2) of the FCC Rules. Given that the three disclosure orders provided for by r.14.02(2) are alternatives to each other, an application for a declaration under s.45(1) of the FCC Act must be made by reference to one of the three types of disclosure orders identified in r.14.02(2) of the FCC Rules. That has the practical consequence that a party who applies for a declaration under s.45(1) of the FCC Act must identify which of the three types of disclosure order provided for by r.14.02(2) of the FCC Rules the party will ask the Court to make if the Court were to make a declaration under s.45(1) of the FCC Act and, where disclosure is not sought “generally”, the classes of documents or the issues in relation to which the party would seek a disclosure order.
In any given case, therefore, the question the Court is required to consider when determining an application for a declaration under s.45(1) of the FCC Act is whether it is appropriate in the interests of the administration of justice that the Court make the disclosure order the party applying for the declaration will ask the Court to make if a declaration is made. This requires consideration of the proper construction, first of r.14.02 itself and, second, of s.45(1) of the FCC Act.
Before I undertake these tasks, it may be relevant to compare the scheme for the ordering of discovery provided for by the combined operation of s.45 of the FCC Act and r.14.02 of the FCC Rules with the scheme for discovery that has formed part of the procedures of superior courts in England and in Australia after the adoption of the Judicature system. The foundation of that scheme was rule 12 of Order XXXI of the Rules of the Supreme Court 1883 which provided as follows:[5]
Any party may, without filing any affidavit, apply to the Court or a judge for an order directing any other party to any cause or matter to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein. On the hearing of such application the Court or judge may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the cause or matter, or make such order, either generally or limited to certain classes of documents, as may, in their or his discretion, be thought fit.
[5] The rules were made pursuant to the Supreme Court of Judicature Act 1875 (38 & 39 Vict c. 77)
Perhaps surprisingly, the substance of each of the essential elements of this rule is reflected in the scheme provided for under s.45 of the FCC Act and r.14.02 of the FCC Rules. First, under both schemes an order of the court is required before a party may come under a discovery obligation. It is true that, in the case of the scheme provided for under the FCC Act and FCC Rules, there is a two-stage process before a party may come under a discovery obligation – the granting of a declaration and the making of an order for disclosure –but this is only a difference of form. Second, there is the nature of the discovery obligation provided by the two schemes. An order under rule 12 of Order XXXI imposed an obligation to “make discovery on oath of the documents which are or have been in [the party’s] possession or power”. An order under r.14.02 of the FCC Rules imposes the obligation provided for by r.14.03 of the FCC Rules, namely, to “file an affidavit of documents”. Making “discovery on oath” (which has been held to mean a party’s being “put to his oath to state how far he admits the possession of relevant documents”[6]) and filing an affidavit of documents suggest a similar obligation, although the nature of that obligation is not revealed by the words alone. Third, there is the range of the documents to which a discovery obligation applies. Under rule 12 of Order XXXI the court or a judge could order that a party make discovery “either generally or limited to certain classes of documents, as may, in their or his discretion, be thought fit”. These words or their near equivalent are contained in r.14.02(2)(a) (“generally”) and r.14.02(2)(b) (“in relation to particular classes of documents”) of the FCC Rules.
[6] Lamb v Orton [1853] EngR 291; (1853) 1 Drew 414; 61 ER 510
The point of drawing attention to the parallel elements of the scheme for discovery under rule 12 of Order XXXI (Traditional Discovery) and those of the scheme under s.45 of the FCC Act and r.14.02 of the FCC Rules is not to suggest that the principles governing the exercise of power to grant discovery under Traditional Discovery is relevant to the exercise of the power to make a declaration under s.45 of the FCC Act. They are not. That is apparent from the text of the two schemes. Under Traditional Discovery a party was required to give discovery unless the court was of the view that it would be unnecessary, whereas the Court cannot make an order for disclosure under r.14.02(2) of the FCC Rules unless the Court first makes a declaration under s.45 of the FCC Act that it is appropriate in the interests of the administration of justice to allow discovery.
The principal relevance of drawing attention to the parallels between Traditional Discovery and the scheme for discovery provided for by s.45 of the FCC Act and r.14.02 of the FCC Rules is this. Words and expressions contained in r.14.02 and r.14.03 of the FCC Rules are not defined. Subrule 14.02(2) of the FCC Rules refers to an “order for disclosure”, but it does not identify what the substance of such order may be; it refers to an order for disclosure “generally” but that term is not explained; and r.14.03 of the FCC Rules requires the party against whom an order for disclosure is made to file an affidavit of documents, but it does not explain what an affidavit of documents is, or what it is the party who has to file such affidavit must do to prepare an affidavit of documents that meets the order for disclosure. A reasonable explanation for the bareness of the language of r.14.02 and r.14.03 of the FCC Rules is that they assume the existence of a practice of discovery with the details of which the reader is familiar; that the language of the rules suggests that the practice of discovery the existence of which they assume is that associated with Traditional Discovery; and that, at least in substantial part, it is by reference to the practice of Traditional Discovery that meaning is to be given to “order for disclosure”, “generally”, and “affidavit of documents”, and the extent of the obligations a party assumes on the making of an order for disclosure is to be ascertained.
Construction of r.14.02(2) and 14.03 of the FCC Rules
The first matter to note is that noted by Rangiah J in Hartnett Legal Services Pty Ltd v Ballantyne: r.14.02 of the FCC Rules uses “disclosure” whereas r.14.01 (which refers to the making of a declaration under s.45 of the FC Act) refers to “discovery”. His Honour said it “is unclear whether some nuance in meaning is intended”. [7] With respect, the use of the words “discovery” and “disclosure” does not indicate any intended nuance in meaning. As I have already noted, the Dictionary to the FCC Rules defines “discovery” to mean “an obligation to disclose”. Further, in the context of the rules and practice of discovery, “disclosure” denotes both the obligation to disclose documents and the consequential duty of the party who discloses the documents to make those documents available to another party’s inspection. That meaning appears to have been given currency by Lord Woolf, as explained by the Australian Law Reform Commission:[8]
The term ‘disclosure’ was defined by Lord Woolf in his 1995 interim report on access to justice in England and Wales. Lord Woolf noted the traditional distinction between ‘discovery’ and ‘inspection’ whereby ‘discovery is the process of disclosing the existence of a document and inspection is the process by which a party who has been given discovery has produced to him the documents of which discovery has been given’.[[9]] Lord Woolf saw merit in referring to both stages in the process, discovery and inspection, as ‘disclosure’.
[7] [2016] FCA 116, at [19]
[8] ALRC Report 115 Managing Discovery of Documents in Federal Courts, at [1.67]
[9] Lord Woolf, Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System England and Wales (1995), [10]
An “order for disclosure”, therefore, means an order that requires the party against whom it is directed to search for and disclose documents in that party’s power or possession with the consequence that, once disclosed, the party must make the documents available for inspection by other parties in the proceeding, subject to any claim for privilege.
The next matter to consider is the meaning of “order for disclosure . . . generally”. Rangiah J considered that expression in Hartnett Legal Services Pty Ltd v Ballantyne.[10] The question in that case was whether the expression incorporated the test of relevance stated by Brett LJ in Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co.[11] Rangiah J found that the expression “order for disclosure . . . generally” did not incorporate the Peruvian Guano Co. test of relevance; such an order was instead limited to requiring the disclosure of “documents that are directly relevant to the issues raised by the pleadings or in the affidavits”.[12] The basis of his Honour’s conclusion is r.20.14 of the Federal Court Rules 2011 (Cth) (FC Rules), which his Honour considered to be relevant because of r.1.15(2) of the FCC Rules. That sub rule provides that if in any particular case the FCC Rules are insufficient or inappropriate the Court may apply the FC Rules “or the Family Law Rules” in whole or in part and modified or dispensed with as necessary.
The following observations may be made about this part of Rangiah J’s reasons:
a)First, his Honour does not appear to have applied r.20.14 of the FC Rules to the circumstances of the case before him. His Honour appears to have applied r.14.02(a) of the FCC Rules, which his Honour construed as requiring discovery of the sort provided for by r.20.14 of the FC Rules.
b)Second, if, contrary to what I say in (a), his Honour is to be taken to have applied r.20.14 of the FC Rules, rather than r.14.02(a) of the FCC Rules, his Honour does not explain in what sense r.14.02(a) was insufficient or inappropriate so as to engage r.1.15(2)(a) of the FCC Rules.
c)Third, the FC Rules refer to the discovery available under r.20.14 as “standard discovery”. Under r.20.15 of the FC Rules, however, the Federal Court may grant “more extensive discovery” than that provided for by r.20.14. His Honour did not refer to the more extensive discovery available under r.20.15 of the FC Rules. It is not clear, therefore, why his Honour considered r.20.14, rather than r.20.15, of the FC Rules applied to the circumstances of the case before him.
There is another, and more important, aspect of Rangiah J’s judgment that it is necessary to note. Having concluded than an “order for disclosure . . . generally” is to be construed as being limited to the disclosure of “documents that are directly relevant to the issues raised by the pleadings or in the affidavits”, his Honour said:[13]
That is not to say that it is beyond the power of the Court to make a more expansive order where it is in the interests of the administration of justice to do so, but no such order was made in this case.
[13] [2016] FCA 116, at [16]
His Honour, however, does not identify the source of the Court’s power to make a broader order for discovery than the one his Honour held was authorised by making an “order for disclosure . . . generally”. His Honour seemed to have been of the view that s.45 of the FCC Act could not authorise the making of a broader order for discovery because his Honour said that “it would be quite inconsistent with s 45 of the FCC Act to construe “disclosure generally” as importing a wide test of relevance”.[14]
[14] [2016] FCA 116, at [33]
With respect, assuming, as in my opinion is the case, that r.14.02(2) of the FCC Rules assumes it is to be read against the background of the practice of Traditional Discovery, the meaning of “order for disclosure . . . generally” is clear. It is refers to what was known as “general discovery” under Traditional Discovery. It is one of the orders the court could have made on an application under r.12 of Order XXXI for an “order directing any other party to any cause or matter to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein”, that order being that the party make discovery “generally” as opposed to making discovery in relation to “certain classes of documents”. The form of the order was that the party “make and file a full and sufficient affidavit, stating whether he has or has had in his possession or power any, and (if any) what documents relating to the matters in this action and accounting for the same”.[15]
[15] Seton, H.W., Forms of Judgment and Orders, 6th ed., 1910 London, Vol. 1, page 52
I am of course bound by what Rangiah J decided in Hartnett Legal Services. That means that the expression “order for disclosure . . . generally”, as it appears in r.14.02(2)(a) of the FCC Rules, does not mean general discovery as understood in Traditional Discovery; instead it means “standard discovery” provided for by r.20.14 of the FC Rules. The Court, however, has power to order broader discovery than that permitted by r.20.14 of the FC Rules if the Court is satisfied it is appropriate in the interests of the administration of justice to do so.
On this construction of r.14.02(2)(a) of the FCC Rules it is important to be clear about what the expression “directly relevant”, as it appears in r.20.14 of the FC Rules, means. The expression “directly relevant” as the test for defining the scope of discovery appears to have been first introduced in Queensland in 1994;[16] and its meaning was considered by Demack J in Robson v Reb Engineering Pty Ltd:[17]
My opinion is that the word “directly” should not be taken to mean that which constitutes direct evidence as distinct from circumstantial evidence. Rather, “directly relevant” means something which tends to prove or disprove the allegation in issue.
[16] Order 35, r.4 of the Supreme Court Rules (Qld)
[17] [1997] 2 Qd R 102 at page 105
I next move to the second kind of disclosure order provided for by r.14.04(2) of the FCC Rules, namely, disclosure in relation to “particular classes of documents”. This should be seen, not as an independent method of describing the documents that must be disclosed, but as a limitation on the documents that would otherwise be liable to be disclosed if an order for disclosure “generally” were made. In other words, the classes of documents, whatever the stated basis of classification, that may be ordered to be disclosed if an order were made pursuant to r.14.02(b) of the FCC Rules must still be documents that are directly relevant to an issue in the proceeding (assuming Rangiah J’s construction of r.14.02(a) in Hartnett Legal Services is correct) or which relate to any matter in question (if the Court makes an order for discovery that is as broad as that permitted under Traditional Discovery).
Over the last twenty or so years the practice, at least in New South Wales, has been for parties to seek discovery by reference to “categories of documents”. Presumably this has been done on the implicit, although, in my opinion, doubtful assumption that the notion of “categories of documents” is synonymous with the notion of “classes of documents” as known to Traditional Discovery. The discovery the ABCC in the application before me will seek, if a declaration under s.45 of the FCC Act is made, is an example of discovery by category of documents. Although the practice was introduced to limit the scope of discovery that was available under Traditional Discovery, it is liable to add to the complexity and hence the time and cost of civil proceedings. That can readily be seen when the typical stages by which discovery by categories of documents is sought and given are identified.
It begins by one or both parties formulating and communicating to each other their formulation of the categories of the documents the parties contend should be discovered. The parties are anxious that they formulate the categories in as detailed and comprehensive a manner as possible to ensure they do not omit relevant or potentially relevant documents. That often leads to the formulation of a large number of categories of documents, many of which are described in broad terms. Further, the categories are usually not formulated explicitly by reference to an issue that arises on the pleadings, but are often described in a manner that includes documents that go beyond the issues raised on the pleadings. The parties’ initial communications to each other of their suggested categories of documents are usually followed by correspondence about the appropriateness of the categories each party has formulated. That often leads to a dispute that is brought before a court; and the dispute is resolved by the time-consuming process of each party justifying the relevance of each category of document that is in dispute by reference to one or more of the issues and the court ruling on whether the category sufficiently describes documents that are relevant.
It should readily be seen that this approach to discovery, in many cases, is more likely to increase the complexity, delay, and cost of a proceeding than would be the case where general discovery were ordered under Traditional Discovery. Under an order for general discovery a party was obliged to search for documents that related to all matters in question. The outcome of that search was an affidavit of documents that, with limited exceptions, was treated as conclusive.[18] Further, a party’s obligation to search for documents relevant to all matters in question was consistent with and reinforced what a conscientious party would in any event do to prepare for the hearing of the matter, namely, search for and identify relevant documents.
[18] “The party’s oath that a particular document is irrelevant is conclusive against ordering its production, unless the Court is satisfied from certain sources that in spite of his oath to the contrary, the document is relevant” – Bray, E. Digest of the Law of Discovery, 2nd ed, 1910, London at page 50
It is appropriate that I here deal with a submission the respondents made that, notwithstanding the apparent provision by r.14.02(2)(b) for the making of a disclosure order “in relation to particular classes of documents”, the Court does not have power to order discovery by reference to categories of documents. The basis of that submission is r.14.06 of the FCC Rules which provides:
If, at any stage of a proceeding, it appears to the Court from evidence or from the nature or circumstances of the case or from any document filed, that some document or class of document relating to a matter in question in the proceeding may be, or may have been, in the possession, custody or control of a party, the Court may order the party:
(a)to file an affidavit stating:
(i)whether the document, or a document of that class, is or has been in the possession, custody or control of the party; and
(ii)if it has been but is not then in the possession, custody or control of the party, when the party parted with it and what has become of it; and
(b)to serve the affidavit on another party.
I do not accept the respondents’ submission. Rule 14.06 has its origins in r.19A of Order XXXI of the Rules of the Supreme Court 1883. Speaking of the then equivalent rule under the Federal Court Rules 1979 (Cth), Lander J in Metcash Trading Ltd v Bunn explained the purpose of this rule “was to obviate the hardship of the rule that the affidavit of discovery was conclusive”.[19] That is a reference to the means by which discovery was given under Traditional Discovery.[20]
[19] Metcash Trading Limited v Bunn [2010] FCA 8, at [17]
[20] That r.14.06 of the FCC Rules uses the expression “relating to a matter in question”, which is the expression used when general discovery is ordered, strongly suggests that the reference to “disclosure . . . generally” in r.14.02(a) was intended to mean general discovery under Traditional Discovery.
I now move to the third kind of disclosure order provided for by r.14.04(2) of the FCC Rules, namely, disclosure “in relation to particular issues”. That simply requires an order that the party discover documents that are relevant to an issue arising on the pleadings. A simple example of such order is that proposed by Cotton J in Downing v Falmouth United Sewerage Board in an action for nuisance:[21]
I think, therefore, that we ought to require the Defendants to file an affidavit as to books or documents in their possession containing resolutions of the Defendants during the years 1885, 1886, and 1887 admitting, or tending to shew, that the Defendants' system of sewerage was or is creating a nuisance . . .
[21] (1887) 37 Ch. D 234, at page 242
The final matter to consider is the nature and extent of the obligation that a party assumes once an order for disclosure is made against that party. Rule 14.03 of the FCC Rules states that the party must file an affidavit of documents. Although that term is not defined, its meaning is clear and at the very least means an affidavit that identifies the relevant documents the party has in his or her power or possession that answer the order for disclosure. Although the rule does not state what it is a party must do before he or she can make an affidavit of documents, the nature of a party’s obligation to comply with a disclosure order is that which has been stated of a party’s obligation to give discovery under Traditional Discovery. For present purposes it is sufficient if I refer to the following passage from the judgment of Von Doussa J in Re Ronald Neville Mcgorm Ex Parte: the Co-Operative Building Society of South Australia:[22]
The obligation resting on a party obliged to give discovery requires that he make proper enquiries and efforts to identify and disclose all relevant documents that are not in his possession. The obligation extends to making enquiries from the person in whose possession the documents now are: see Mertens v. Haigh [1863] EngR 633; (1863) 3 De GJ & S 528 at 531;46 ER 471, at 472. It was said in the nineteenth century case of Taylor v. Rundell [1841] EngR 256; (1841) Cr & Ph 104; 41 ER 429, at 433 by Lyndhurst LC. “If it is in your power to give the discovery, you must give it; if not, you must show that you have done your best to procure the means of giving it”. See also Palmdale Insurance Limited (in Liquidation) v. L. Grollo & Co. Pty Ltd & Ors [1987] VicRp 8; (1987) VR 113.
[22] [1989] FCA 87
Construction of s.45 of the FCC Act
Subsection 45(1) of the FCC Act requires the Court to consider whether allowing discovery – which, as I have already said, means making one of the orders for disclosure provided for by r.14.02(2) of the FCC Rules which the applicant for a declaration proposes the Court should make, once a declaration is made - is “appropriate” in the interests of the administration of justice. The first word to consider is “appropriate”. One of the ordinary meanings of the word “appropriate”, when used as an adjective, is “specially fitted or suitable”.[23] That means that before a declaration can be made under s.45(1) of the FCC Act the Court must be satisfied that to allow discovery would be specially suitable “in the interests of the administration of justice”.
[23] Oxford English Dictionary, online edition, accessed 29 April 2018
The next thing to consider is the expression “in the interests of”. Of the different meanings of this expression, the one best suited to s.45(1) of the FCC Act is “that which is to or for the advantage of any one; good, benefit, profit, advantage”.[24] Thus, s.45(1) requires the Court to be satisfied that allowing discovery will be for the good, benefit, profit, or to the advantage of the “administration of justice”.
[24] Oxford English Dictionary, online edition, accessed 29 April 2018
The third thing to consider is the construction of “administration of justice”. In Abrahams v Qantas Airways Ltd (No.2) Lucev FM (as his Honour then was) construed the expression “interests of the administration of justice” to mean “interests of the management of justice, being the management by the Court of the proceedings pending before the Court”. [25] That construction emphasises “management”; but of primary importance is that which is the subject of management, namely, “justice”. Whatever order the court makes in the interests of the administration of justice, it must nevertheless result in that which answers the description of “justice”.
[25] [2007] FMCA 639 at [11]
That, lastly, brings me to “justice”. What does “justice” mean in the context of s.45(1) of the FCC Act? The starting point is the Court’s being a Chapter III court in which Parliament has vested the judicial power of the Commonwealth under a number of enactments, including under the Fair Work Act 2009 (Cth) (FW Act). That means that the power given by s.45(1) of the FCC Act cannot be exercised “in a manner which is inconsistent with the essential character of a court or with the nature of judicial power”;[26] and here the “nature of judicial power and the essential character of the courts which are charged with its exercise can be ascertained in part from the Constitution, in part from the common law”.[27] The relevance of this is that at federation each of the State Supreme Courts had jurisdiction to grant discovery. That does not, of course, mean that the power to grant discovery is an essential characteristic of a court in which the judicial power of the Commonwealth has been vested; it does mean, however, that the purposes for which State Courts exercised jurisdiction to order discovery are at the very least an important element of the exercise of the judicial power of the Commonwealth. I identified in Harwood the justifications for discovery,[28] and I do not propose to repeat what I there said other than to set out the following passage from the judgment of Lord Donaldson MR in Davies v Eli Lilly & Co:[29]
In plain language, litigation in this country is conducted ‘cards face up on the table’. Some people from other lands regard this as incomprehensible. ‘Why,’ they ask, should I be expected to provide my opponent with the means of defeating me?’ The answer, of course, is that litigation is not a war or even a game. It is designed to do real justice between opposing parties and, if the court does not have all the relevant information, it cannot achieve this object.
[26] Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs [1992] HCA 64, at [21]
[27] Nicholas v R [1998] HCA 9, at [14] (Brennan CJ)
[28] Harwood v The Trustee of the Property of John Mervyn Harwood [2015] FCCA 1058 at [16], [17], [15], [27]
[29] [1987] 1 All ER 801 at page 804
The “justice” with which s.45(1) of the FCC Act is concerned, therefore, is the availability of relevant information to all parties in the proceeding before trial – that is, information that is relevant to an issue or issues in the proceeding; and the “administration of justice” to which s.45(1) refers is the Court’s management of the means by which parties may identify and gain access to relevant information before the trial. Allowing discovery will be appropriate in the interests of the administration of justice, therefore, if the allowing of it will be for the good, benefit, profit or advantage of the Court’s management of the means by which all parties to a proceeding before it may identify and gain access to relevant information before the trial.
The “justice” to which s.45(1) of the FCC Act applies is not to be considered alone. It must be understood in the context of the objects of the FCC Act as stated in s.3 of that Act. That section provides that the objects of the FCC Act are, among other things, to enable the Court to “operate as informally as possible in the exercise of judicial power”, and to enable the Court “to use streamlined procedures”. Even apart from these objects, and more generally, the justice to which s.45(1) of the FCC Act applies must take into account costs, direct and indirect. There is no justice in disclosure if the cost is disproportionate to the expected benefit.
If I have correctly construed s.45(1) of the FCC Act, whether or not it would be appropriate in the interests of the administration of justice to allow discovery will depend on the circumstances of the case. One circumstance may be where the person against whom discovery is sought (respondent to discovery) acted or is alleged to have acted in some fiduciary or analogous capacity in the interests of the applicant for discovery, and the proceeding relates to that person’s conduct in that capacity. Discovery may be appropriate in these circumstances because, given the relationship between the parties, the applicant for discovery may know nothing more than that the respondent to discovery may hold documents that may be relevant to an issue or issues in the proceeding, but the applicant for discovery otherwise is in no position to identify with any particularity or sufficient particularity what those documents might be. That, at least according Lindley LJ, accounted for the origin of the equitable jurisdiction to order discovery:[30]
The old practice of the Court of Chancery was limited to cases with which the Chancery Courts were familiar, such as breaches of trust where all the documents were in the possession of the trustee, and the cestui que trust knew nothing about the matter; and in that class of case the practice of the Court of Chancery was admirable, and without it it would have been impossible to administer justice.
[30] In Re Wills’ Trade-Marks [1892] 3 Ch 201, at pages 207-208
Another set of circumstances where it might be appropriate in the interests of the administration of justice to allow discovery is where information that is relevant to an issue in the proceeding is peculiarly within the knowledge of the respondent to discovery. This will usually be the case where the state of mind of the respondent to discovery is an issue in the proceedings, or where the asserted cause of action or an element or elements of the asserted cause of action occurred in some secrecy. In these circumstances allowing discovery might be appropriate in the interests of the administration of justice because, given that the relevant information is or is likely to be peculiarly within the possession of the respondent to discovery, or the event occurred in some secrecy, the applicant would be unable to determine, or at least will have difficulty in determining, whether the respondent to discovery has any relevant documents and, if so, the sort of documents he or she might have.
The two circumstances I have identified suggest that it may be appropriate in the interests of the administration of justice to allow discovery whenever there is a substantial imbalance between the parties of their knowledge, or means of acquiring knowledge, of the existence of documents that are relevant to all or some of the issues in the proceeding. Where such an imbalance exists, it may be appropriate to impose on the party that has the knowledge, or means of acquiring knowledge, the burden of searching for and disclosing documents in that party’s power or possession that are relevant to some or all the issues in the proceeding, rather than leave the party who does not have the knowledge or means of acquiring knowledge to do the best he or she can to obtain by subpoena the documents of whose existence he or she is not in a position to know. Where, on the other hand, there is no such imbalance of knowledge or means of acquiring knowledge, it is reasonable to expect that the interests of the parties in identifying and gaining access to relevant documents before the hearing will usually be met by the availability of the issue of subpoenas for production, not only against third parties, but also against each other.
The discovery sought by the ABCC if declaration made
The discovery the ABCC seeks if a declaration under s.45 of the FCC Act is made is the discovery of documents falling within the categories listed in the two schedules attached to the application in a case filed on 28 February 2018, one of which is directed to the first respondent (CFMEU), and the other of which is directed to the second respondent (CFMEU NSW). The categories of documents listed in the schedule that is directed to the CFMEU are as follows:
1.Record of any employment by the first respondent (CFMEU) as at February 2015 of, or positions held in the CFMEU as at February 2015 by, the Fourth Respondent, the Fifth Respondent, the Seventh Respondent, the Ninth Respondent, the Thirteenth Respondent, and/or the Fourteenth Respondent.
2.Documents recording the negotiating and bargaining by the CFMEU on behalf of DMG Employees for an enterprise agreement to replace the De Martin & Gasparini Enterprise Agreement 2011-2014 in the period 1 May 2014 to 28 February 2015, including:
(a)copies of draft or proposed enterprise agreements issued by the CFMEU to DMG;
(b)communications passing between the CFMEU and DMG;
(c) minutes or other records of meetings between the CFMEU representatives and DMG representatives or members of the Concrete Placers’ Association;
(d)internal CFMEU reports, memoranda, minutes of meetings or strategy documents concerning the negotiation of the new enterprise agreement.
3.Documents recording the hiring of vehicular transport by the CFMEU or its officials or employees used to transport DMG Employees to the Barangaroo site on 13 February 2015, 14 February 2015 or 16 February 2015.
4.Documents recording the making of communication, oral or written, including Facebook, Twitter or other social media communications, by CFMEU officials or employees with DMG Employees on 12, 13, 14, 15, 16 or 17 February 2015.
5.Documents recording the content of communication, oral or written, including Facebook, Twitter or other social media communications, by the CFMEU or its officials or employees with DMG Employees on 12, 13, 14, 15, 16 or 17 February 2015.
6.Documents, including electronic documents, recording the attendance of DMG Employees of DMG officials or employees, and events concerning their attendance, at the Barangaroo site on 13, 14, 16 or 17 February 2015 or the Harold Park site on 16 or 17 February 2015.
7.Minutes of meeting of management committees or executive committees of the CFMEU recording discussions, decisions or resolutions made concerning the events referred to in paragraph 6.
8.Documents recording the making of communication, oral or written, by CFMEU officials or employees with employees of Zanet Pumping, Commercial, Preston or Zenith on 13 or 14 February 2015.
9.Documents recording the content of communication, oral or written, by CFMEU officials or employees with employees of Zanet Pumping, Commercial, Preston or Zenith on 13 or 14 February 2015.
10.Documents recording the making of communication, oral or written, by CFMEU officials or employees with employees of Zanet Pumping, Commercial, Preston, ZC Group or Zenith on 15 or 16 February 2015.
11.Documents recording the content of communication, oral or written, by CFMEU officials or employees with employees of Zanet Pumping, Commercial, Preston, ZC Group or Zenith on 15 or 16 February 2015.
12.Documents recording the making of communication, oral or written, by the Third Respondent or Eighth Respondent with employees of Civic or Longreach [on] 15, 16 or 17 February 2015.
13.Documents recording the content of communication, oral or written, by the Third Respondent or Eighth Respondent with employees of Civic or Longreach [on] 15, 16 or 17 February 2015.
14.Documents recording the making of communication, oral or written, by CFMEU officials or employees with employees of Solid Concrete, Commercial or Zanet Pumping on 16 or 17 February 2015.
15.Documents recording content of communication, oral or written, by CFMEU officials or employees with employees of Solid Concrete, Commercial or Zanet Pumping on 16 or 17 February 2015.
16.Documents, including manuals, brochures, training documents, guidelines, rules, procedures or otherwise, in effect in February 2015, recording procedures to be followed for the documenting and reporting by CFMEU officials or employees of site or vehicle safety issues encountered on building or construction sites.
17.Documents issued or received by the CFMEU or its officials or employees recording or reporting site or vehicle safety issues occurring at the Harold Park site on 16 or 17 February 2015 or the Barangaroo site on 17 February 2015.
18.Documents prepared by the Third Respondent or Eighth Respondent recording their activities at the Harold Park site on 16 or 17 February 2015.
The categories listed in the schedule that is directed to CFMEU NSW are the same as those listed in the schedule directed to the CFMEU except that the documents described in category 2 are not included in the schedule directed to the CFMEU NSW.
Parties’ submissions
The ABCC submitted that if I allow the discovery the ABCC seeks it is likely this would contribute to the fair and expeditious conduct of the proceeding. The ABCC submits that the documents described in the categories of documents are relevant to the issues raised on the pleadings, that the discovery the ABCC seeks is limited, and that, at least to some extent, the ABCC has already issued subpoenas that have been partially set aside.
The respondents rely on the judgment of Rangiah J in Hartnett Legal Services to submit that Traditional Discovery is prohibited in this Court, and that if a declaration is to be granted it should be limited to documents that are directly relevant to an issue in the proceeding.[31] The respondents further submit that there is no evidence before the Court on the basis of which it is open to the Court to decide whether a declaration should be made;[32] the application by the ABCC for the declaration is inconsistent with its duties as a model litigant;[33] the making of a declaration sought by the ABCC would be “grossly unfair to the” respondents;[34] alternative procedures for obtaining documents are available to the ABCC;[35] and there is no evidence that the granting of the declaration will make the proceeding more expeditious.[36] The respondents also raise objections to the particular categories of documents, contending, among other things, that they call for documents that include that are not relevant to any issue arising on the pleadings.[37]
[31] Outline of Submissions for First and Second Respondents (The Respondents) on Objection to Discovery (Respondents’ Submissions)
[32] Respondents’ submissions, [17]
[33] Respondents’ submissions, [21]-[22]
[34] Respondents’ submissions, [25]
[35] Respondents’ submissions, [25], [32]-[35]
[36] Respondents’ submissions, [27]
[37] Respondents’ submissions, [36]-[67]
Should a declaration be made?
I do not propose to deal with each of the submissions the parties have made. I propose instead to consider each of the categories of documents with a view to determining whether, considered alone, a declaration should be made in relation to each of the categories having regard to the matters I have identified as being relevant to determining whether a declaration under s.45(1) of the FCC Act should be made.
I will only refer to the categories of documents listed in the schedule directed to the CFMEU noting that all but category 2 of those documents are listed in the schedule directed to CFMEU NSW.
Category 1 (CFMEU and CFMEU NSW)
This category describes documents evidencing the employment of the fourth, fifth, seventh, ninth, and thirteenth respondents. There was some confusion in the submissions made to me about whether the CFMEU and the CFMEU NSW admit the employment of these respondents. Whether they are admitted or not, it is not appropriate in the interests of the administration of justice that the ABCC obtain access to these documents by the making of a disclosure order against the respondents because access to such documents, if they exist and are in the hands of the respondents, can readily be obtained by an appropriately drafted subpoena.
Category 2 (CFMEU only)
Category 2 is said to be relevant to the issues arising out of the respondents’ defences to paragraphs 33, 34, 36, and 37 of the second amended statement of claim (statement of claim).[38] It would be convenient if I repeat here the allegations made in paragraphs 30-39 and the defence of the CFMEU:
[38] Applicant’s Submissions in Support of Application in a Case for Discovery Dated 28 February 2018 (Applicant’s submissions, 28.02.2018), [11]
SOC
CFMEU Defence
30
DMG was covered by . . . the . . . (2011 DMG Enterprise Agreement)
Admitted (CFMEU NSW same)
31
The DMG Enterprise Agreement covered employees engaged by DMG in building construction work in New South Wales (DMG Employees)
Admits subject to exception (CFMEU NSW admits)
32
The 2011 DMG Enterprise Agreement had a nominal expiry date of 30 September 2014.
Admits
(CFMEU NSW the same)
33
In or about early 2014, DMG made a decision to agree to bargain or to initiate bargaining with the DMG Employees in respect of a proposed enterprise agreement to replace the 2011 DMG Enterprise Agreement
Denies
(CFMEU NSW the same)
34
In 2014, DMG sent a notice of employee representational rights to each of the DMG Employees pursuant to s173 of the FW Act.
Not admit
(CFMEU NSW same)
35
The CFMEU was the bargaining representative for all or substantially all of the DMG Employees in respect of bargaining for an enterprise agreement to replace the 2011 Enterprise Agreement.
Admits.
(CFMEU NSW does not plead)
36
In or about mid 2014, DMG initiated bargaining by providing the CFMEU with a copy of a proposed enterprise agreement that it was willing to make with the DMG Employees (DMG’s Proposed EA)
Denies
(CFMEU NSW does not plead)
37
The CFMEU rejected and did not agree to accept DMG’s Proposed EA
Denies
(CFMEU NSW does not plead)
38
In or about mid 2014 the CFMEU provided DMG with a copy of a proposed enterprise agreement to be made between DMG and the DMG Employees (CFMEU’s Proposed EA)
In effect admits, but gives precise details of when proposed enterprise agreement.
(CFMEU NSW does not plead)
39
Between mid 2014 and 30 March 2015, DMG, rejected and did not agree to accept (a) the CFMEU’s Proposed EA; and (b) other enterprise agreements proposed by the CFMEU which were the same as or similar to or variants of the CFMEU EA.
Repeats response to paragraph 38 of the statement of claim and stated DMG refused to make the proposed enterprise agreement.
(CFMEU NSW does not plead)
The ABCC submits that the documents in category 2 are relevant to the issues arising out of the respondents’ defences to paragraphs 33, 34, 36, and 37 of the statement of claim because “the internal documents are relevant to the motivation of the Respondents in carrying out contravening conduct, and therefore the intent referred to in sections 340 and 343 of the” FW Act.[39]
[39] Applicant’s submissions, 28.03.2018, [11]
It may be that some of the documents described in category 2 are relevant to the respondents’ motivation; but they go beyond what can reasonably be considered to be relevant to the very narrow issues arising out of the respondents’ defences to paragraphs 33, 34, 36, and 37 of the statement of claim. Further, even if it could be said that the respondents’ defences to paragraphs 33, 34, 36, and 37 of the statement of claim put in issue the respondents’ motivation, the category calls for documents which would include documents that could not reasonably be regarded as relevant to the respondents’ motivation. I am not satisfied, therefore, that it is appropriate in the interests of the administration of justice that discovery be allowed in relation to the documents described in category 2 because the documents sought to be discovered are broader than the issues to which it is said they are relevant.
Category 3 (category 2 for the CFMEU NSW)
The ABCC submits the documents described in this category are relevant to the issues arising out of the respondents’ defences to the allegations made in paragraphs 76 and 107 of the statement of claim. Whether that is so or not, it is not appropriate in the interests of the administration of justice that the ABCC obtain access to these documents by the making of a disclosure order against the respondents because access to such documents, if they exist and are in the hands of the respondents, can readily be obtained by an appropriately drafted subpoena.
Categories 4, 5, 8-15 (categories 3, 4, 7-14 for CFMEU NSW)
The documents falling within these categories are said to be relevant to the allegations made in paragraphs 76, 77(b), (c1), and (h), 107, 139, 160(a1) and 181 of the statement of claim. In its submissions the ABCC characterises these paragraphs as alleging that “the Respondents arranged for the attendance at the site of DMG Employees”, states that the “Union Respondents deny or do not admit these matters”, and then submits that the documents described categories 4, 5, and 8-15, are relevant to the allegations made in 76, 77(b), (c1), and (h), 107, 130, 160(a1) and 181.[40] This, however, is not a helpful approach because the ABCC’s characterisation of the allegations made in paragraphs 76, 77(b), (c1), and (h), 107, 139, 160(a1), and 181 of the statement of claim gives the allegations a generality they do not possess. That can be seen from the text of the paragraphs of the statement of claim themselves:
[40] Applicant’s submissions, 28.02.2018, [11]
Paragraph
Allegation
76
From at or about 5.45 am on 14 February 2015 and at times thereafter during that day CFMEU Officers, being Kera, Malia, Manna, D Greenfield, Wyer and Parker, arranged or assisted in arranging a group of DMG Employees and themselves to attend the Barangaroo Site and position themselves at the Hickson Road entrance so as to prevent or obstruct or effectively block trucks and the 14 February Subcontractor Employees [who are defined as the employees of the February Subcontractors who in paragraph 74 are defined as Zanet Pumping, Commercial, Preston, and Zenith] from entering the Barangaroo Site (First Blockade)
[Particulars not reproduced]
77
Further, during 14 February 2015, CFMEU Officers, being Parker, Manna, Kera, D Greenfield, Mallia and Wyer, engaged in further action to prevent or obstruct the 14 February Work being performed including by:
. . .
(b) Manna in substance telling Zanet Pumping and Commercial not to perform work on DMG’s work sites;
. . .
(c1) the conduct of Parker in calling Titone of Preston at approximately 7.30am, at which time Parker in substance [said the matters alleged in paragraphs (i)-(iv)]
. . . .
(h) the conduct of Mann at approximately 7:15 am telephoning Serge Ciaschetti of Commercial and in substance [telling and threatening the matters alleged in paragraphs (i)-(iii)]
107
From at or about 5.00 am on 16 February 2015 and at times thereafter during that day the CFMEU Officers, being Parker, Kera, Collier, D Greenfield, Manna, Wyer, Mallia and O’Grady, arranged or assisted in arranging a group of DMG Employees and themselves to attend the Barangaroo Site and position themselves so as to prevent or obstruct or effectively block trucks from ascending the Barangaroo site and the 16 February Subcontractor Employees [who are defined as the employees of the 16 February Barangaroo Subcontractors who in paragraph 105 are defined as Zanet Pumping, Commercial, Preston, ZC Group, and Zenith] from attending the Barangaroo Site (Second Blockade)
[Particulars not reproduced]
139
From sometime at or about 6.30 am on 16 February 2015, CFMEU Officers, being Sloane and Parker, attended the Harold Park site and arranged for approximately 5 DMG Employee who were on strike to attend the Harold Park Site.
160(a1)
From around 5.15 am on 17 February 2015 and at times thereafter during the day, CFMEU Officers, being Kera, O’Grady, M Greenfield, Parker, Manna and Malia, engaged in action to prevent or obstruct the 17 February 2015 Work being performed including by:
(a1) arranging or assisting to arrange a group of persons to congregate across the entrance of Barangaroo Site access gates between 6:00 and 7:00 am having the effect of blocking access to the Barangaroo Site by 17 February Barangaroo Subcontractor trucks [the “17 February Barangaroo Subcontractors” is defined in paragraph 158 as Solid Concrete, Commercial and Zanet Pumping]
181
From sometime at or about 8.20am on 17 February 2015 Sloane, attended the Harold Park Site and arranged for striking DMG Employee, not allocated to work at the Harold park Site, to attend and enter the Harold Park Site.
Although it may be accepted the categories would compel the disclosure of documents that may include documents that may be relevant to the issues raised on the respondents’ defences to paragraphs 76, 77(b), (c1), and (h), 107, 139, 160(a1), and 181 of the statement of claim, they would also compel the disclosure of documents that could not reasonably be regarded as relevant to the issues raised by the respondents’ defences to these paragraphs. First, the categories call for the disclosure of communications from all CFMEU officials, not just those identified in the relevant paragraphs of the statement of claim. Second, the categories also include communications from all employees of the respondents, which presumably would include persons other than or in addition to the CFMEU officers referred to in the relevant paragraphs of the statement of claim. Third, the categories call for communications with “DMG Employees”. That expression is defined in paragraph 31 of the statement of claim to mean employees of DMG covered by the “2011 DMG Enterprise Agreement”, an expression also defined in the statement of claim. That means that the categories would call for the disclosure of communications not only with DMG Employees who may not have been involved in the incidents alleged in the relevant paragraphs of the statement of claim, but also communications with DMG Employees who were involved in the incidents but in relation to matters unrelated to the incidents.
It follows that I am not satisfied that it is appropriate in the interests of the administration of justice that discovery be allowed to permit the ABCC to apply for a disclosure order in relation to the documents described in categories 4, 5, 8-15 listed in schedule A to the application in a case, and categories 3, 4, 7-14 listed in schedule B to the application in a case.
Categories 6 and 7 (categories 5 and 6 for the CFMEU NSW)
The ABCC submits that the documents described in these categories are “[g]enerally relevant to all pleaded contraventions”. It is necessary to consider the two categories separately.
It may be accepted that if an order requiring the disclosure of documents described in category 6 were made it is conceivable that the respondents may produce documents that are relevant to the matters alleged in the statement of claim. But it is likely that category 6 would also call for documents that are not relevant. They call for documents in relation to persons other than those the statement of claim identifies as having attended the relevant sites. For that reason I am not satisfied it is appropriate in the interests of the administration of justice that the ABCC gain access to such documents by the making of a disclosure order.
The documents described in category 7 require a different consideration. The category calls for a limited and reasonably clearly identified set of documents that appear to be relevant to the events alleged in the statement of claim. It is open to the ABCC, however, to seek access to such documents, if they exist and are in the hands of the respondents, by an appropriately drafted subpoena. In these circumstances I am not satisfied it is appropriate in the interests of the administration of justice that the ABCC gain access to such documents by the making of a disclosure order.
Categories 16 and 17 (categories 15 and 16 for the CFMEU NSW)
The ABCC submits that the documents described in these categories are relevant to the allegations made in paragraphs 150, 151, 170, 171, 192, and 193 of the statement of claim. The asserted relevance of the documents described in these categories is not apparent to me; and in any event, to the extent they are relevant, I am not satisfied it is appropriate in the interests of the administration of justice that the ABCC gain access to such documents by the making of a disclosure order because access to such documents, if they exist and are in the hands of the respondents, can readily be obtained by an appropriately drafted subpoena.
Category 18 (category 17 for the CFMEU)
The documents described in this category appear to be directly relevant to issues in the statement of claim. I am not satisfied, however, that it is appropriate in the interests of the administration of justice that the ABCC gain access to such documents by the making of a disclosure order because access to such documents, if they exist and are in the hands of the respondents, can readily be obtained by an appropriately drafted subpoena.
Concluding observations
I have concluded that I am not satisfied that it is appropriate in the interests of the administration of justice that discovery be allowed so as to permit the ABCC to apply for a disclosure order in relation to the documents described in the categories of documents listed in Schedules A and B to the application in the case filed on 28 February 2018. I have so concluded either because the categories include documents that could not reasonably be regarded as relevant to any issue arising out of the pleadings, or they describe relevant documents which the ABCC could readily obtain by means of an appropriately drafted subpoena. I propose, therefore, to order that the application in the case be dismissed.
My conclusions might give the impression that this Court’s procedures are incapable of facilitating the ABCC’s gaining access to documents that are relevant to the issues that arise on the pleadings, and in particular the issues that arise on the respondents’ defences to paragraphs 76, 77(b), (c1), and (h), 107, 139, 160(a1) and 181 of the statement of claim. Such impression, however, would be incorrect. The problem I have identified with most of the categories of the documents the ABCC has formulated is that they include irrelevant documents.
It may be the ABCC can legitimately say that it is not possible in the circumstances of this case to describe with sufficient particularity categories of documents that would capture only documents that are relevant. That might be so. But disclosure by categories of documents (assuming that is the same thing as disclosure “in relation to particular classes of documents”) is not the only form of disclosure order the Court can make under r.14.02 of the FCC Rules; the Court can also make a disclosure order “in relation to particulars issues”. Under such an order the onus would be on the party against whom the order is made to search for and disclose documents in his or her power or possession that are relevant to a particular issue or issues arising on the pleadings; and the party must undertake such search according to the standard of inquiry identified by Von Doussa J in Re Ronald Neville Mcgorm to which I have already referred.
I should not, of course, be taken to suggest that had the ABCC sought a declaration under s.45(1) of the FCC Act on the basis that it would have sought an order for disclosure in relation to particular issues that I would have made a declaration under s.45(1) of the FCC Act. At least one reason why I should not be taken to make any such suggestion is that the respondents objected to my making a declaration under s.45(1) of the FCC Act for reasons I have not considered, and which relate to more general matters than those on which I have relied for concluding that it is not appropriate in the interests of the administration of justice to allow discovery.
Objection to inspection of documents produced on subpoena
I now turn to the second matter; and that relates to an objection made by the respondents to the inspection of documents produced by a third party, LongReach Pumping Services Pty Limited (LongReach). The subpoena in response to which LongReach produced documents called for diary entries of an officer of LongReach in relation to the provision of pumping services at the Harold Park site.
The CFMEU submits that the documents have no apparent relevance for the reasons I held that documents called for by paragraph 4 of the subpoena that I set aside on 12 January 2018 had no apparent relevance.[41] The ABCC submits that the documents called for by paragraph 4 related to the period before the date alleged in paragraph 182 of the statement of claim, namely, 17 February 2015, whereas the subpoena addressed to LongReach relates to the period after 17 February 2015. The ABCC submits that whether or not Mr Sloane had raised an issue after 17 February 2015 is an issue, because it is alleged in paragraph 182 of the statement of claim that Mr Sloane did not on 17 February or after that date raise any safety issue. [42] The ABCC also relies[43] on the judgment of Flick J in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union.[44] I accept the ABCC’s submissions, and propose to dismiss the objection to inspection.
[41] Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union & Ors (No.3) [2018] FCCA 34 at [26]-[28]
[42] Applicant’s Submissions in Relation to the Notice of Objection, [12]-[14
[43] Applicant’s Submissions in Relation to the Notice of Objection, [15]-[19]
[44] [2018] FCA 42 at [157]
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 4 May 2018
- AGLC
- Australian Building and Construction Commissioner v CFMEU and Ors (No.5) [2018] FCCA 1100
- Case
- [2018] FCCA 1100
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court were whether the documents sought by the ABCC for discovery were relevant to the proceedings, and whether the documents produced by the CFMMEU in response to a subpoena were apparently relevant, thereby overcoming the objection to their inspection.
Judge Manousaridis reasoned that for documents to be discoverable, they must be relevant to the issues in dispute. Similarly, documents produced under subpoena are subject to inspection unless a valid objection is raised. The Court considered the nature of the documents and their potential to shed light on the matters in contention. The objection to inspection was dismissed, and the application for discovery was also dismissed, indicating that the Court found the documents sought by the ABCC were not sufficiently relevant to warrant discovery.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.