Caltex Refining Company Ltd v Amalgamated Metal Workers Union

[1990] FCA 814

JUDGME 0. .

COURT OF DISTRICT R E G I S W 1

m SO= -S ) N o NG 6 1 7 of 1 9 9 0

BETWEN:  -FINING CQ

AN-

Applicants

AND:  WIITAL WO-

-

Respondents

2 7 N o v e m b e r 199Q

On 20 November I delivered judgment concerning certain subpoenas which had been issued at the instance of the applicants against the Australian Workers' Union and directed that certain documents should be produced to the court as referred to in those subpoenas and excluded certain other documents. Documents have been produced today on behalf of the union in answer to the subpoenas but it is submitted that access should not be granted to the applicants.

fairly ephemeral. They repeat an argument which was put on 20

The submission on access is in two parts. The first is that no access should be granted to any of the documents. The second is that access should be denied in respect of certain marked and identified documents. The grounds upon which access generally is sought to be denied to the applicants are

November in relation to the subpoena in general, that the subpoena is in the nature of a "fishing expedition", and it is now said that access to the documents is likewise a similar improper exercise.

Speaking generally of the documents, it seems to me that I have already ruled on that submission. The "fishing" said to be at stake here is that which was also mentioned on the previous occasion, namely that the applicants were seeking to use the documentation for the purpose of joining the AWU in the current proceedings under section 45D of the Act or perhaps to take separate proceedings under that or another section against the AWU. It is significant, as senior counsel for the union has pointed out, that the applicants have chosen to seek these documents by route of subpoena and not by way of a motion for discovery from a non-party provided for under Order 15A of the Federal Court rules. That makes reasonably detailed provision for the mechanism to be used and the evidence to be elicited in order to avail the moving party of

permitting some "fishing" although there presumably should be	the benefits of that rule. It may well have the effect of	some limits.
Although that procedure has not been adopted and although that rule or any other rule does not exclude the use of the weapon of a subpoena to require non-parties to produce material to the Court, it seems to me that I should apply as far as possible the principles which underlie Order 15A in
determining the issue as to whether access should be granted to the applicants in this case in relation to these documents.
It is conceded in the course of argument by both parties that documents may not be withheld which are otherwise produceable under the principles applying to both discovery and subpoena, on the grounds that the documents may subject their producer to civil proceedings whether for damages or any other relief. In other words, the fact that the production of a document might subject the owner and producer of the document to proceedings under section 45D is not a ground upon which production or access can be refused, whether under the rules applicable to subpoenas or in the procedures designed for discovery.
It is not argued today on behalf of the union that the documents which have been produced have no relevance at all to the current proceedings or the issues between the people who are at present parties to these proceedings. What the union
used, and that the intention of the subpoena was to have argues is that it fears that the documents are going to be
documents produced which could be used, to found or create proceedings against it under section 45D. I am not entitled as a matter of law to deny access to the documents on that ground.
It seems to lead to a somewhat odd result. Proceedings under section 45D can subject a respondent to a very high damages award and there have already been some significant cases which establish that fact. In this very case the applicants are seeking an enormous award of damages against the existing respondents and it takes very little additional imagination to conceive that if the AWU were to be joined as a respondent, or if separate proceedings were to be commenced against it, it might not also be subject to at least a claim for very substantial damages. On the other hand, the penalties which may be imposed on unions who are in breach of awards, whilst not entirely insignificant, are generally not of anything like the same order as the damages which may be awarded in a successful section 45D case.
It is true that the law has always drawn a distinction between matters carrying penalties which are in the nature of criminal proceedings and matters which sound in damages, generally described as civil proceedings. In the case of proceedings against a union, this seems to be a relatively legalistic distinction. It will not assist the members of the union to
will not be required to pay a single dollar by way of penalty. be told that they must pay $10,000,000 in civil damages but Nonetheless, as it seems to me from the authorities which have
been quoted, some of which I will examine a little later, this distinction must be drawn. Having drawn it, I conclude that there is no basis for denying to the applicants access in general terms to the documents which have been produced.
The second submission is considerably more complex. Having identified a number of particular documents which have been appropriately marked and delineated, the union puts the viewpoint that these documents should not be made available to the applicants on the grounds that they may well be used to provide evidence against it in other proceedings for a penalty not yet commenced. A number of authorities have been quoted in the course of argument and I propose to read those authorities before giving judgment on this aspect of the matter. I will therefore reserve my decision in relation to the second submission made on behalf of the union which will be delivered as soon as possible. In the meantime the documents which are not marked with the stickers may be made available to the applicants.

t

I certify that this and the 9

pr-c9ding pages F:. a r*ll+ c--1, -9 +h-

Recsons for Jud3.-,: ;: i.,.re. bl h.c r 3, OII?

Just~ce E l ~ f e l d

, Dated 37 11, (70