Caltex Refining Company Ltd v Amalgamated Metal Workers Union

Re: CALTEX REFINING CO LIMITED and ANOTHER
And: AMALGAMATED METAL WORKERS UNION and OTHERS
No. N G617 of 1990
FED No. 816
Subpoena

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Einfeld J.(1)

CATCHWORDS

Subpoena - subpoena to a non-party - subpoenaed person's knowledge of matters identified in subpoena by reference to disputes notified to Australian Industrial Relations Commission - ability to identify the material sought - ability to determine relevance to a dispute to which subpoenaed person is not a party.

Commissioner of Railways v Small (1938) 38 SR (NSW) 564

HEARING

SYDNEY

#DATE 20:11:1990

JUDGE1

The case before the court is a claim under section 45D of the Trade Practices Act brought by the applicants against two unions and a number of their officers or members, or other workers, following upon and in connection with a dispute which arose in relation to the supply of crude oil to one or more of the applicants from the loading terminal of Esso Australia Limited at Westernport in Victoria.

It is widely known that, as a result of the subject matter of these claims, there was interruption with the flow of crude oil to Caltex and hence with the supply of refined fuels to retail outlets in various states of Australia, with the consequence that there was an interference with personal and commercial activity in Australia for a time.
The matter specifically before the court today arises as a result of a subpoena issued by or on behalf of the applicants to the national secretary of the Australian Workers Union, the address of whom is given as the 3rd floor, 35 Regent Street, Chippendale, a Sydney suburb. The subpoena is in similar form to a large number of other subpoenas issued to other union officers and executives throughout Australia, most of whom appear to be based in Melbourne. The AWU is not a party to the section 45D claim of the applicants.
The particular subpoena which is the subject of the proceedings today is wide-ranging. It consists of nine paragraphs, but that, in itself, hides the very large range of documentation which the subpoena is designed to have produced to the court.
The first paragraph of the subpoena, for example, seeks originals or copies of correspondence, letters, facsimile transmissions, telexes and memoranda to or from some 20 or 21 places identified by reference to the names of several of organisations or companies, as well as the Victorian and New South Wales Governments, and the Australian Industrial Relations Commission. I read that paragraph as requiring the production of only such material as is in the possession of the Australian Workers Union offices around Australia, presumably as flowed from or to the union from or to the organisations and entities listed. Certainly that is the least which that paragraph of the subpoena embraces.
In other words, taking one example, what are sought are the copies of correspondence etc., defined in the broad terms to which I have referred, to or from the national secretary or another official representative of the AWU from or to, as an example, the New South Wales Government.
One rather intriguing aspect of paragraph 1 of the subpoena is that it includes the AWU itself. Taking that example, it would require the national secretary to produce copy correspondence going to the Australian Workers Union from the Australian Workers Union, or any officer thereof. I really do not understand what is intended by that, unless perhaps inter-office memoranda.
Paragraphs 2 and 3 of the subpoena are in similar comprehensive terms though involving different entities. The major attack which is launched against paragraphs 1, 2, and 3 is that the material sought related originally to "disputes between Esso Australia Limited and the Amalgamated Metal Workers Union or the Federated Ironworkers Associations of Australia", the two principal respondents to the section 45D claim.
The argument mounted by counsel for the AWU last week when this matter was debated - that is, on 13 November - was that the word "disputes" in paragraphs 1, 2 and 3 of the subpoena - the same word (once in the singular) also appears in paragraphs 6 and 9 - is incapable of understanding and comprehension by the recipient of the subpoena. It was submitted that the AWU could not know what were the disputes between Esso and the two unions named, even though the subpoena delimits the time period as being from 1 August to the date of issue of the subpoena which was 7 November. The AWU explained that there may have been a whole range of disputes between Esso and these two unions in that three months period, and that it should not be for the AWU to have to try to work out which of the documents it has relate to such disputes. It was said, for example, that many documents might relate to disputes between these parties without the AWU having the slightest idea whether they did or not.
The consequence was that, at the end of the hearing on 13 November, I directed that the applicants supply to the solicitors for the AWU further particulars of the dispute or disputes referred to in the subpoena. I said then, and again today, that I am not at all sure what effect on enforceability or otherwise of subpoenas, a letter of further particulars might have.
This area of the law has been the subject of considerable debate in the cases, but in my view the current state of authority leaves a very unsatisfactory situation. The authorities debate with learning and application the differences between subpoena and discovery, and I recognise, of course, that there are differences between them. They also debate the appropriate width of a subpoena, and the attitude that should be taken to subpoenas which are in the nature of what lawyers well understand to be "fishing expeditions". Much of the law flows from or starts with the decision of Sir Frederick Jordan in the Commissioner of Railways v Small (1938) 38 SR (NSW) 564. This was a case of a very special kind that seems to have given birth to a range of case law whose facts are actually far from the facts of that particular case. I have always doubted the widely attributed applicability of that decision.
Unfortunately, the consequence of the decision-making that has thence surrounded the issue of subpoenas, seems to me to involve the courts in something less than the protection of justice to individuals who receive subpoenas, as might be their proper function, and involve them in conniving with lawyers' tactics for the benefits of their clients. Even if the lawyers' actions are proper, in the sense of being in the interests of their clients, the court's indulgence of them often contributes to making the problems more, not less, complex. The interests of the court are to have litigation properly conducted, with every reasonable facility available to the parties to obtain evidence of the facts necessary for the particular litigation. The courts should not become involved, however innocently, in adding to the costs and complexity of litigation, and into elements of humbug which periodically infest submissions made by parties on such issues as these. I do not say that this is necessarily one such case, but there are elements emerging which suggest that it might be.
In the letter of 13 November supplying further particulars of the subpoena in accordance with my direction of the same date, the applicants defined the relevant disputes in two ways. They said, first of all, that the reference to the word "dispute" or "disputes" in paragraphs 1, 2, 3, 6 and 9 of the subpoena may be taken to refer to each of two sub-definitions.
Firstly, there is reference to some nine industrial disputes notified to the Australian Industrial Relations Commission in 1990, each one of which is particularised by a number, but no other details are given.
Today, during the course of submissions, senior counsel for the AWU conceded that his client union was a party to these disputes. He even tendered a document in one of them to illustrate the range of matters being debated in that particular numbered matter in the AIRC. Counsel made the point, in my view completely correctly, that disputes notified to or coming under the umbrella of the Australian Industrial Relations Commission can not be conceived as if they were issues arising on pleadings filed in a court. It is also well-known and certainly part of my own experience that, on some occasions, relatively small disputes are notified to the Commission or its predecessor which turn out to be the framework under which a large number of matters are debated. The reverse situation is also the case where a large number of matters are notified to the Commission which turn out to be matters within a relatively small compass.
In the example tendered by consent and exhibited before me, the so-called dispute is defined in terms that the parties have agreed on a number of issues requiring further discussion and negotiations. From the expressions used in that document of recommendation which is all I have to go on, it is probably incorrect to describe the matters therein identified as strict disputes at all. The Conciliation Commissioner who produced the recommendation does identify some matters that might be described as disputes, but others seem to be subject matters of general industrial significance as yet not elevated into an area which could with certainty be defined as an industrial dispute under the Industrial Relations Act. Some of them would not qualify , even in more colloquial usage, as strict disputes.
So the attack brought by the AWU on this further particularisation of the subpoena is that what has been raised is a whole range of issues which apparently concern the parties to those disputes, including the AWU itself on the workers' side of the record, and Esso on the employers' side of the record. It is said that merely by giving those dispute numbers, the applicants have, in fact, supplied no real basis upon which anyone looking at the correspondence and other files in AWU offices could identify the material sought, the failure to produce which would or might result in proceedings for a penalty or for contempt of court for failure to comply with the subpoena. That is the context in which I am invited to look at the expanded or de-limited subpoena.
The second particularisation of the disputes provided in the letter of 13 November following my direction of that day, is that the "disputes" mentioned in the subpoena should be taken as referring to "each of the disputes the subject of the black ban on work involving or associated with the supply of crude oil at or from the crude oil loading terminal of Esso Australia Limited at Long Island Point, Westernport Bay, in the State of Victoria" to these applicants.
The attack made by the AWU on this aspect of the de-limited or redefined subpoena is that it, as a non-party to the litigation, cannot be required to make a judgment of what disputes were the subject of the black ban. The AWU takes some fairly pedantic points concerning the use of the words "involving or associated with", but in substance what it says is that the disputes cannot be so described as to require the recipient of the subpoena to make a judgment of this kind, especially as it is not alleged to be a party to the matters dividing the applicants and the respondents in this litigation said to be the subject of the black ban concerned.
The argument concerning the identification of the disputes by reference to the numbers in the Industrial Relations Commission appears to me to have force. I am not aware as to the disputes embraced in these numbered proceedings. Even the tender of the document in one of those matters tells me not so much what was the subject matter of the dispute which received that file number when it was notified to the Commission, but what matters have arisen "following discussions between the parties" in accordance with a direction of the Conciliation Commissioner, and what emerged as being the agreed issues for continuing discussion.
It does not seem to me that the applicants can legitimately require someone who receives a subpoena but is not a party to the proceedings, to go through all its correspondence for the purpose of making a judgment, in relation to any particular letter or other document, as to whether it "related to" a dispute between Esso and two unions in the three months from August to November 1990, and then to ascertain whether that correspondence which "relates to" those disputes as so identified, were disputes which can be properly described as the subject of the relevant numbered proceedings in the Industrial Relations Commission. That is not the particularisation of a subpoena. It is its expansion such as can, on its face, only be described as muddying the waters and seeking to extract every conceivable document on which the applicants might be able to base a case which is not yet pleaded or another case at some time in the future.
To use as an example, exhibit AWU2 - one item said to arise from the discussions to which I have referred was long service leave, as it is described: " - employees who are terminated or resign are disadvantaged." It may well be possible that the AWU has in its file some correspondence relating to long service leave of employees who are terminated or resigned, or discussing the issues of long service leave of employees who may in the future be terminated or resign. But I do not believe that the applicants have laid any groundwork for establishing that that correspondence is a proper matter to be included in this subpoena. The subpoena therefore throws on to its recipient a task of identification and production by a tortuous series of activities and investigation when it cannot be shown on the face of it, that the subject matter has any relevance at all to the current proceedings. This is the stuff of "fishing expeditions". I am not saying that it has no relevance. I am merely saying that the formulation of paragraphs 1, 2 and 3 of the subpoena, in particular in this regard, does not identify adequately the material which is being sought. It does not tell the recipient of the subpoena what documents are required to be produced, or do so with sufficient particularity to enable it to be done reasonably and promptly.
I do not think, however, that the objection to the material set out in the second of the two redefinitions of disputes in the letter of 13 November is similarly determinable. I agree with senior counsel for the AWU that this redefinition is not felicitously expressed. Of course, lawyers are well accustomed to using words like "relating to", or "involving", or "associated with"; they crop up in legal documents all the time, but when objection is taken, I think there is a reason to examine carefully what precisely is meant.
Once again I must try to draw the fine line between the need to interpret a subpoena with appropriate solemnity for its possible consequences in the event of a failure to honour and obey its terms, and the need to get to the heart of the litigation and not permit too much tactical or forensic game-playing. When a subpoena seeks documents relating to disputes which are defined by reference to a black ban on work involving or associated with particular matters, the reader is entitled to reel a little at the tortuous language that thereby emerges. But I must take into account that this subpoena is addressed to the national secretary of a large and very experienced industrial organisation which is, on the admission of their own senior counsel, involved in a number of disputes that appear to have at least some relevance or attachment to these proceedings.
I must also read the expressions contained in the letter of particulars from the solicitors for the applicants with some degree of commonsense and balance. The subject matter that is there identified, and, in effect, fitted into the subpoena, is that documents are sought which deal with matters in dispute between Esso and the two unions named in connection with or lying at the base of the black ban referred to. There can be no doubt that the national secretary of the AWU knows precisely what black ban is being referred to, and his senior counsel did not suggest to the contrary.
There can also be no doubt that he knows, or could easily ascertain, the disputes which lay at the root of this black ban, those which led to it, and those which were, and perhaps still are, associated with it. If he did not know of his own knowledge, it would not have taken much reading of the general mass media to identify them. And I have no doubt that he would have officers and organisers under his control, and within his capacity to contact, who would be able to identify what the black ban was and what disputes led to or were associated with it. It seems to me that those documents which evidence matters relating to those disputes, and which are in the control and power of the national secretary to produce in accordance with the usual rules governing subpoenas, are produceable, and are able to be identified adequately and relatively simply.
It has not been argued today that the production of such documents would be oppressive in the sense that their whereabouts are so widespread or they are so difficult to find as to create serious inconvenience. On the other hand, part of the reason why that argument was not put was because the threshold argument of what the disputes were took priority. I would be willing to listen to an application that because these documents are perhaps spread around several different places in Australia, or perhaps are in the possession of persons who may be on oil platforms in the Bass Strait, or somewhere else not easily able to be contacted, some delay ought to be contemplated in their production. Perhaps also some further consideration may have to be given to the issue of conduct money to produce them. But subject to such matters, I am of the view that the subpoena can legitimately require the production of documents of the kind to which I have referred. That would apply to the provisions of paragraphs 1, 2 and 3 of the subpoena.
Paragraph 4 seeks the diaries kept by the national secretary and what is described as "members of the executives of the union (including you) and organisers of the union," for the period in question. Again in response to the direction which I gave a week ago, the applicants have supplied further particulars of this request. These reveal that what are being sought are, firstly, the diaries kept by the national secretary and other members of the executive of the AWU recording information or entries concerning the disputes or any of the disputes identified earlier, and second, diaries kept by organisers of the union who were involved in any of these disputes. It is not made clear as to whether these are personal diaries in the sense of books containing essentially private information but in which they might have recorded some such information or entries as are sought, or whether they are official diaries in the sense that they are required to be kept by them because of the office which they hold in the union, whether elected or paid or both.
Senior counsel representing the national secretary of the AWU conceded under my questioning that the diary kept by the national secretary was produceable. In my view, with the definition of the relevant disputes to which I have earlier referred, that diary should be produced. So far as the members of the executive of the union are concerned, I think there is a different consideration. On the face of it, the national secretary would have no control or possession of the personal diaries of other members of the executive of the union, even if those diaries recorded information or had entries concerning the relevant disputes. However, that does not seem to me to go to the question of whether the subpoena is valid, but more to the question as to what ought to be done if the national secretary declines to produce such materials because he says they are not within his possession or control. I will therefore make no further comment about that aspect of the matter before the court today.

The third series of diaries are those allegedly kept by organisers of the union who are described as having been "involved" in the relevant disputes. Again there is nothing before me that suggests that the organisers, though paid officials of the union, are required to keep official diaries which, in substance, remain the possession of the union, or at least are part of the official duties for which they get paid and are required by their employer to be kept, or whether they are talking about their personal diaries. Once again that is not a matter in which I need to involve myself at this stage, because it will depend upon what reply is given by the national secretary. If, for example, no such diaries are produced, and the applicants then seek some form of enforcement or penalty, or take some further proceedings arising out of the failure to comply with the subpoena, it would, of course, be necessary then to go into the evidence of what if any diaries existed, whether these were official or private, and what the liability of the national secretary might be for failing to produce them.
Paragraph 5 of the subpoena is no longer pressed. It sought the register of members and officers of the union, including but not limited to entries in the register relating to the three month period under discussion. Like another part of the subpoena not now pressed, paragraph 8, which sought, "the most recently prepared balance sheet and profit and loss account of the union", paragraph 5 is only now used by counsel for the AWU as illustrating that things that could not conceivably have the slightest relevance to the current proceedings are obviously being sought by the applicants both in a fishing-type capacity, and also as a pre-cursor to taking proceedings under section 45D against the AWU itself. Apart from recording the fact that it was only when I called upon the applicants to explain what possible reasons they could have for requiring the production under subpoena of these documents, that they conceded that these paragraphs were no longer pressed, it is probably better that I say nothing else on that subject at this time, other than to note the submission and, the response.
Paragraph 7 of the subpoena sought a copy of each issue of any journal, newsletter or bulletin issued by the union to its members in the three month period under consideration. Some further particulars of this paragraph given in the letter of 13 November to which I have referred identify the material sought as being "any journal, newsletter or bulletin recording information about or referring to the disputes" previously referred to. Under questioning, senior counsel for the AWU conceded that these are produceable materials, subject, of course, to the identification of the disputes, the matter which I have already resolved. Paragraph 6 seeks a number of materials in the general line of those in paragraphs 1, 2 and 3 and needs no further comment now.
Finally, I come to paragraph 9. This sought "all employment records kept by the union regarding any officer or member of the union involved in or connected with the disputes" between Esso and the two union respondents to this case. Except for the union's officers, this request is almost unintelligible. For example, as the applicants well know, the union would not have, except by accident or for a totally different reason, the employment records of each or any of its members, or even of every member who was in any way involved in the disputes which led to the black ban in question. Unions are not generally the employers of their members. It is not possible to require of this union that it ask its members to produce to it the records of their employment by their employers, so that the union could produce them to the court in response to this subpoena. On the other hand, the AWU would have the employment records of its own employees, and if I read the words "any officer" to cover such persons, it would undoubtedly have the employment records of such persons.
This particular paragraph is not delimited at all in terms of time; nor is there any apparent reason, on the face of it, why the union should be required to produce all the employment records of its employees who had something to do with the defined disputes between Esso and the two unions concerned. In my view, that paragraph is so vague and imprecise and so far from anything that has emerged in the discussion so far as being capable of being properly required, as to be disallowed for the present. If evidence emerges to change that view, the demand may be renewed.
In summary, then, it seems to me that the subpoena does properly seek a number of documents that can be readily identified and the union should be required to produce them.

[1990] FCA 816

20 NOVEMBER 1990