Australian Meat Industry Employees Union v Mudginberri Station Pty Ltd

[1986] FCA 251

THE FEDERAL COURT OF AUSTRALIA )

l )

VICTORIA DISTRICT REGISTRY	)	No. VG 36 of 1986
1

DIVISION GENERAL )

BETWEEN: W E AUSTRALASIAN MEAT INDUSTRY

EMPLOYEES UNION, JACK O’TOOLE,

TREVOR SURPLICE, DICK ANNEAR,

PAT ROUGHAN

Applicants

AND:

MWINBERRI STATION PTY. LIMITED

Respondent

MORLING J. 23 June. 1986

EX TEMPORE REASONS

HIS HONOUR: Thls is a notice of motlon which, in substance,

raises three matters. First. that the date for the

hearlng of this matter be vacated; secondly, that the

respondent give further and better discovery; and

thirdly, that the applicants be glven leave to admlnister

Interrogatories outside the time that has been llmlted

for their admlnlstration pursuant to directions qlven by

Mr Justice Gray on 14 April 1986.

I do not have any difficulty with the first matter.

For reasons which It is unnecessary to qo Into this

mornlnq it does seem to me to be desirable thatt&+h,e

-..

present proceedings be heard and determlned as soon as ‘

possible. The appllcants have sought to have these

proceedings heard before matter No. G 123 of 1985 is

concluded. They have asked me not to conclude the hearing of that matter by dellverlng my reasons untll matter No VG 36 of 1986 has been heard.

Nhen I fixed thls matter for hearmu on 1 July, It

was my understanding that the applicants were anxlous for

the matter to be heard expedltiously and certamly before

I declded G 123 of 1985. I had no wlsh to force a

premature date on them or on the respondent. I thlnk

that date may be too early and I propose to vacate It. I

shall defer for the moment the fixation of another date

for the hearmu.

As to the second matter - 1.e. the request for

further and better discovery. counsel for the respondent

polnts out that h15 client's affidavlt of dlscovery was

filed and served on 29 May and that no complaint was made

about Its alleged inadequacy until 17 June. In answer,

counsel for the applicants point out that there has been

an appeal pendlng agalnst Mr Justlce Gray's declsion not

to strlke out the appllcants' clam. They submit that

the pendency of that appeal led to the appllcants not

raising at an earlier point of time the alleged

inadequacy of the respondent's affidavlt of dlscovery.

I can understand that attitude to a certain extent.

However, bearins in mind that it must have been apparent

to the appllcants that the respondent is anxious to bring

thls lltigation to an end and also bearing In mind that

the appeal (if it had proceeded) could well have been

heard withln the next day or so it was unwise for the

applicants to refrain until 17 June from complaining

about the alleged inadequate discovery. However, the

attitude taken by counsel for the respondent enables me

to deal with the matter wlthout much contention and In a

manner which wlll not cause any prepdice.

In the schedule to the notice of motlon. the

applicants llst some 11 categories of documents whlch

they seek to have discovered. Most of the documents

referred to in 8 of those paragraphs (paras. 1. 2 . 5, 7,

8, 9 , 10 and 11) have been produced in court this morning

and copies have been made available to the applicants.

Counsel for the respondent has stated that some of the

documents souuht by the applicants exist as part of

records which have been produced.

Counsel has also stated that there is no document

answering the description of the document referred to in

para. 6 of the schedule.

4.

to the documents referred to in paras. it 1s sald that these documents cannot be located. There 3 and 4,

.Is

1 s a dispute between the parties as to whether they have

been produced In proceedings No G 123 of 1985 but I think it is unnecessary to embark upon the resolution of that

dispute. I am informed by counsel for the respondent

that a search 1s still beinu made for the documents and

that if they come to light they will be provlded to the

applicants. I think that search should proceed as

quickly as possible, but I do not think that the failure

to produce them (if they exlst) should delay the hearlng

of the matter.

What I propose to do 1s to direct the respondent to

file a further affidavit verifying those documents that

have been produced today. In vlew of Mr Pendarvls’

absence In Mudglnberrl I do not think that any pre~udlce

wlll occur if the affidavit is not sworn until the comlng

weekend	and	ulven	to	the	applicants‘	solicltors	on
Monday.

I turn now to the questlon of interrogatories. This

matter does cause me more concern. I am far from belna persuaded that the applicants could not have formulated

their interrogatorles (or most of them) well before

today. Also they should have approached the court for

an extension of tlme for complylng wlth Mr Justlce Gray’s

5.

direction that interrosatories be filed and served on or

before 6 June. The pendency of the appeal did not

justlfy delay in that regard because the appeal could

well have been heard thls week and the matter could have

been heard swiftly thereafter If the appeal had failed.

Moreover. having regard to the exhaustive cross

examinatlon of Pendarvis and other witnesses In G 123 of

1985 I seriously questlon whether this 1 s an appropriate

case for lnterrogatorles .

Nevertheless, I do not think I should ignore the

fact that an appeal was pending and that there was some

basis for the applicants believing that the case might

not proceed to a hearmg on the merlts.

I therefore propose to extend untll 5 pm on 27 June

the tlme referred to In para. 8 of Mr Justlce Gray's

dlrectlons of 14 April. Any lnterrogatorles are to be

served and available to counsel in Sydney by that time.

I fix that time because I propose to vary the tune

referred to in para. 9 of Mr Justice Gray's directlons to

2 pm on Wednesday 2 July.

The one outstanding matter IS the availabllity of

the records referred to in paras. 3 and 4 of the schedule

to the notice of notion. I am not to be taken as

excludinu the applicants from maklng an applicatlon to

. ' ; '

: 6.

further interrogate the respondent should those records

come to hand. However. I do not think the absence of

the records will prejudlce the applicants in the

presentation of their case. They have to llve with their

own tardiness In failing to approach the court for

extension of time to Interrogate.

I propose to reserve the questlon of the costs of

today for declsion by the trlal judge, whoever he 1s. but

I wlll hear the partles on that questlon If they wlsh to

address me on It.

There being no opposltlon from counsel for the

respondent, I make an order In terms of para. 2 of the

notlce of motlon (dated 2 0 June 1986).

I flx Monday 7 July f o r the return of subpoenaes.

I reserve llberty to apply on three days notice.

The matter 1 s fixed for hearlng on Monday, 14 July

1986.

the matter to the llst on

r dlrectlons.