Callaghan, B. v Federated Clerks Union of Australia

[1987] FCA 210

NOI' FOR DISTRIBUTIOh

IN THE FEDERAL COURT OF AUSTRALIA	1
)

QUEENSLAND	DISTRICT	REGISTRY	1	QLD. Q13 of 1985
1	(LLD. Q7 of 1986

DIVIS INDUSTRIAL ON 1

I BETWEEN:

BERNADEITE CALLAGHAN. DAVID MAPSTONE,

KEVIN BIANCHI and CHRISTOPHER WOODS

Applicants

m:

FEDERATD CLERKS' UNION OF AUSTRALIA

First Respondent

m:

Second Respondents

SPENDER J.

BRISBANE

1 MAY 1987.

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REASONS FOR JUDGMENT

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FEDERAL COURT OF

AUSTFWLIA

PRINCIPAL REGISTRY

2.

The Federated Clerks’ Union of Australia and a number of

the second respondents seek leave to appeal from an rder made by

Gray J. on 26 March 1987 concerning further discovery in

proceedings Q.13 of 1985 and 9.7 of 1986. They seek that the

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operation of	the order be stayed pending the determination	of
that appeal.

Those matters involve applications under ss.140 and 141

of the Conciliation and Arbitration Act 1904. In Q.13 of 1985,

the rule to show cause was made on 7 November 1985, points of

contention filed on behalf of the applicants on 6 March 1986 and

on behalf of the respondents for whom Dr. Jessup of counsel

appears, (whom	I will hereinafter refer to as “the respondents”),
were filed on	6 June 1986. The Union amended Its points of

contention on 4 July 1986. In Q.7 of 1986, the rule to show

cause was made on 2 2 October 1986, the points of contention of

the applicants filed on 20 November 1986, and on behalf of the

respondents on 2 December 1986.

When the matter came on for hearlng before Gray J. on 17

March 1987, both rules to show cause were amended by consent.

The matters were heard before Gray J. on 17, 18, 19 and 24, 25

and 26 Narch 1987. The matters have been adjourned for further

hearing on 16, 17, 18, and 19 June 1987. The next scheduled

sitting of a Full Court of the Federal Court of Australia in

Brisbane is the week commencing Monday, 27 July 1987. On 24

March 1987, the applicants had closed their case. Counsel for

the respondents opened his case on 25 March 1987 and called Mr.

Wasson, the Assistant National Secretary of the Union. A number

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of documents were sought to be tendered through Mr. Wasson, which

documents apparently had not been dlscovered. The transcript

shows that at that time counsel for the respondents agreed that a

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list of documents not previously discovered would be prepared and

would be made available to counsel for the applicants durlng the

luncheon adjournment on that day and copies of those documents

would also be available.

After the luncheon adjournment on 25 March, counsel for

the applicants obtained a short adjournment to read the material

which had been provlded during the ad~ournment and, later that

afternoon, he handed to counsel for the respondents a

hand-wrltten llst containlng ten categories of documents which

was headed "Further Discovery". Counsel for the applicants

sought further discovery in terms of the list which had been

prepared by hlm. That appllcation was opposed in part by counsel

for the respondents. After argument, hls Honour indicated that

he would order further discovery. That order in fact was made on

the afternoon of 26 March 1987. The order made by Gray J. on 26

March 1987 was entered on 16 Aprll 1987. It was in these terms:-

"The Court orders that:-

1. Within twenty eight ( 2 8 ) days of this day, the

respondents, Federated Clerks' Union f

Australia, Maynes, Smith, Sullivan, Flasson,

Darroch, Higgins, and Bourke file and serve an

affldavit, or affidavits stating whether the

following documents, or any documents in the

following classes are or have been in the

possession, custody or power of them or any of

them, and if any such document has been, but

is not at the time of swearing such affidavit,

or affidavits, is not in the possession,

custody or power of any of them, when it, he

or she parted with the document and what has

become of it.

4.

(a)	Draft budgets of the national office of the
Federated Clerks Union of Australia (the
organisation) for the years 1982 to 1983;

i 1985 to 1986; 1986 to 1987;

(b) Minutes of the Finance Committee of the

organisation considering draft budgets from

and including, 1982 to the present time;

(c) Minutes of Meetings of the National

Executive of the organisation in 1984 and

1986;

(d) The supplementary financial report for the

1984 meetmg of the National Council of the

organisation;

(e) The Financial report of the organisation for

the year ended 30th June, 1982;

(f) Documents relating to the constitution and

objects of the overseas fund of the

organisatlon, and to payments into and out of that fund from and lncludlnq 1982 to the present time;

(g)	Documents relating to the constitution and
objects of the international aid and
asslstance fund o f the organisation and to
payments into and out of that fund from and ncluding 1982 to the present tlme;
(h)	Documents relating to the constitution and
operation of the Brisbane annex of the
organisation, and to income and expenditure in relation to that annex from its inception to the present time;

(1) Documents relating to the items entltled

“meetings expenses“ in the statements of

receipts and payments of the organlsation

from 1982 to the present time:

(j) Documents relating to the identity of

investments by or on behalf of the National

Council of the organisation, and the

financial arrangements and payments in

respect of those Investments from and

including 1982 to the present time.

2. The further hearing of the matters is

adjourned until .Tuesday 16th June at	10.15
a.m. at Brisbane.

3 . Liberty is reserved to any party to apply, on

seven days notice in writing to each other

party. I’

5.

The Notice of Motion its face applies to the whole of

the order. An affidavit filed by Mr. Patrick James Mullins, a

solicitor of the Brisbane agents of the solicitors for the

respondents recites:-

The grounds upon which the Respondents to whom

the said order was directed wish to appeal

therefrom are as follows:-

(i) The documents and classes of documents

referred to In the order do not relate to

any question or questions in issue in these

proceedings.

(ii) It was not open to his Honour under the

Rules of Court to order the maklng of an

Affidavit or Affidavits as to documents no

more preclsely described than as 'relating

to' certain general subject matters."

On the hearing of the motion, Dr. Jessup for the

respondents lndicated that leave was sought only in respect of

those documents referred to in the order of Mr. Justlce Gray in

paras. l(f)-l(j), inclusive.

The primary submission on behalf of the respondents is

that the classes of documents referred to In that order are not

relevant to any question in issue in the proceedings. In

additlon, affidavit material has been filed by one Teresa Mary

Kelleher deposing to the width of inquiry that would be required

in respect of those categories of documents and suggesting that

to comply with the order of Gray J. would be onerous to the point

I of oppression.

6 .

It 1 s unneccssary to refer in detail to the nature of

the proceedings before his Honour Mr. Justice Gray. In essence,

they involve disputes between the National Executive of the

I	Federated Clerks' Union and the Central and Southern Queensland Branch of that Union. One issue concerns the proper method of calculation of sustentation fees payable by that branch to the
National Executive. Another issue concerns the validity of Rule.
15(1) of the rules of the Union as well a5 the validity of other
rules of the Union. One of the bases of invalidity alleged is
that Rule 15(1) is so wide in its terms as to permit payments on
unfair bases, and also for payment on other than a basis of
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uniformity between branches. The evidence so far given in the
matters concerns, amongst many other lssues, the complaint of the
Central and Southern Queensland Branch that they have been dlscrimlnated against financlally, and treated unfairly, as a reflectlon of a dlfferinq industrial allegiance to the majority
of the National Executive. Further, as a consequence of the
fundamental Issues in dlspute, there are questions concerning the validity of a number of resolutlons passed by the National
Executlve of the Union relatlng to the Central and Southern
Queensland Branch. One resolution which ought speciflcally to be noted is that calling on the Central and Southern Queensland
Branch to pay to the National Executive of the Union the costs of
litigation incurred by the Union in lltigation to which the
Central and Southern Queensland Branch was an opposing party.
Another relates to the establishment of a national journal and a
determination that it shall be "the sole official journal of the
Union".

7.

On the qucstion of whether leave should be granted, on

14 April 1987, a Full Court of the Federal Court of Australia,

constituted by Woodward, Wilcox and Ryan JJ., in The Commissioner

of Taxation of the Commonwealth of Australia v. Hydrocarbon

Products Pty.Ltd., (unreported), was concerned primarily with the

jurisdiction of the Federal Court to entertain appeals from

interlocutory orders of a State Supreme Court. In respect of the

criteria on which leave should be granted, at p.32, the Court

said: -

“The approach to be taken by an appellate court to

whether it should grant leave to appeal from	an
interlocutory order is reasonably well settled.

However, various formulations of the appropriate

test have been expressed in different authorltles.

In Commissioner of Taxation v. Nestle Australia

I Limited (unreported, 5 November 19861, a Full

Court of this Court (Bowen C . J . , Lockhart and

Sheppard JJ.) adopted the following passage from the joint judgment of Glbbs C.J., Alckin, Wilson

and Brennan JJ. in Adam P. Brown Male Fashlons

Pty.Ltd. v. Philip Morris Inc.	(1981) 148 CLR 170,
at 177:

“Nor 1s there any serious dispute

between the parties that appellate

courts exercise particular caution in

reviewing decisions pertaining to

practice and procedure. Counsel for

Brown urged that speclflc cumulative

bars operate to guide appellate

courts in the discharge of that task.

Not only must there be error of

principle, but the decision appealed

from must work ubstantial a

injustice to one of the partles. The

opposing m e w is that such criteria

are to be expressed disjunctively .._

For ourselves, we believe it to be

unnecessary and indeed unwise to lay

down rigid and exhaustive criteria.

The circumstances of different cases

are infinitely various. We would

merely repeat, with approval, the

oft-cited statement of Sir Frederick Jordan in In re the Will of F.B. Gilbert (dec.) (1946) 46 S.R.(N.S.W.)

318 at p. 323:

8.

I . . . I am of opinion that, ...	there is a material difference
between an exercise of discretion
on a point of practice or
procedure and an exercise of
discretion which determines
substantive rights. the In
former class of case, if a tight
rein were not kept u on
interference with the orders of Judges of first instance, the result would be dlsastrous to the
proper administration of justice. delayed interminably, and cosix
heaped up indefinitely, if a
litigant wlth a long purse or a
litigious disposition could, at
will, in effect ransfer all
exercises discretion of n
interlocutory applications from a
Judge in Chambers to a Court of
Appeal. ’

We were referred also to Nlemann v. Electronic Industries Ltd. C19783 V.R. 431 where Murphy J.,

wlth whom McInerney J. agreed, suggested that for

leave to be granted, the order In respect of which

it is sought must be seen clearly to be ’attended

with sufflcient doubt’, and, If wrong, to work

substantlal injustice. See also B.H.P. Petroleum

Pty.Ltd. v. 011 Basins Ltd. C19857 V.R. 756 at 758

and 762. ‘I

It was suggested by counsel for the applicants that the

order of Gray J. was an exercise of dlscretlon, and the caveat of

Slr Frederick Jordan, so often applied, ought once more to be

heeded. Counsel for the respondents argued that the order of

Gray J. was not fundamentally an exercise of discretlon, but was

simply an erroneous determination of the question of whether the

classes of documents referred to in his order were relevant to

issues before him. While there is a large measure of discretion

in the question of whether discovery should be ordered, and how

9.

wide it should be, I accept that the complaint of the respondents

involves essentially a question of law. It is analogous to a ruling by a trial judge on the admissibility of evidence where

objection is taken on the ground of relevance.

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Notwithstanding that conclusion, however, the resolution

of the question of whether particular matters are relevant to

issues in a trial, is one of the many areas where a trial judge

has an advantage that is not possessed by Judges on appeal or by

a judge to whom an applicatlon such as this is brought. It would

be quite unrealistic to ignore the fact that this trial has

already proceeded qulte an extensive way. It is also not

irrelevant that, during the course of the trial, a report by an

accountant, Mr. Cooper of Cooper, Booth & Assoclates, was

received into evldence wlthout oblection by counsel f o r the

respondents, and it dealt in qulte specific detail wlth aspects

directly relevant to the flve categories of documents ln dispute.

Whlle I accept the submission that the mere admisslon of evidence

cannot make discoverable that whlch is not herwise

discoverable, and whlle I also accept that the failure to oblect

may be as a result of a tactical decision or as a result of mere

inadvertence, the canvassmg of those issues in the evidence of

the applicants without objection by the respondents, lends

support to the view reached by his Honour that, involved in the

many issues of the litigation, were questions to which the

impugned categories of documents were relevant.

10.

Even if I were persuaded that it is seriously arguable

that the categories of documents, discovery of which is resisted,

are not relevant to the issues raised in the amended Rules to

Show Cause, as refined by the amended Points of Contention of the

respective parties, I am of the clear view that it would be quite

inappropriate for the hearing of these matters, already

protracted, to be further delayed by appeal proceedings on the validity of the width of discovery ordered by the judge who as

been intimately concerned with the issues, and on whom the

questions of relevance now present before me were put forcefully

and in detail and rejected by him.

For these reasons, I dismiss the motion for leave to

appeal

Touching the suggestion that to comply with the order is

very onerous, it is to be noted that the order of Gray J.

permitted liberty to apply, and if there is anything in that

suggestion, that avenue of relief exists.

I certify that thls 2nd the 7 preceding

pages are a trun copy of the reasons for

judgment her-'? of H.s Honour

Mr Justic:.. Cpmder G&X Associate

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Dated

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