CFMEU v Berardi
[2014] VCC 961
•27 June 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-14-03055
| CONSTRUCTION, FORESTRY, MINING & ENERGY UNION | Applicant |
| v | |
| DANILO BERARDI | Defendant |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 June 2014 | |
DATE OF JUDGMENT: | 27 June 2014 | |
CASE MAY BE CITED AS: | CFMEU v Berardi | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 961 | |
REASONS FOR JUDGMENT
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Subject: Originating Motion and Summons
Catchwords: Application for leave to use documents in application before Fair Work Commission - whether the implied undertaking limited the use of the proposed Statement of Claim and affidavit prepared under section 134AB of the Accident Compensation Act 1985 (Vic) in an unrelated application – whether provisions of this Act prevented the use of these documents in an unrelated application
Legislation Cited: County Court Civil Procedure Rules 2008 (Vic), Accident Compensation Act 1985 (Vic), Accident Compensation (WorkCover Insurance) Act 1993 (Vic), Accident Compensation (Medical Authority and Settlements) Regulations 1993
Cases Cited:HearnevStreet (2008) 235 CLR 125, Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217, E.M. Rowe v Silverstein & Ors [2009] VSC 157, Australian Securities and Investments Commissionv Pattison [2011] VSC 252
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R. Gorton QS with | Slater & Gordon |
| Ms K. Burke | ||
For the Respondent | Mr C. Forster | Schembri & Co Lawyers |
HER HONOUR:
Introduction
1 By originating motion filed on 25 June 2014, the Construction, Forestry, Mining and Energy Union (the CFMEU) sought, firstly, directions as to the procedure to be adopted in making its application where no proceeding had been commenced and, secondly, leave to use an affidavit sworn by Danilo Berardi on 28 March 2014 and a proposed Statement of Claim prepared on behalf of Mr Berardi on 28 March 2014 in an application under section 134AB(4) of the Accident Compensation Act 1985 (Vic) (the Act) in proceeding number U2014/4869 (the unfair dismissal application) in the Fair Work Commission (the Commission).
2 A Summons had been filed by the CFMEU on 24 June 2014, which was supported by an affidavit sworn on 20 June 2014 by Divisional Branch President of the Construction and General Division, Victoria-Tasmania Divisional Branch of the Construction, Forestry, Mining and Energy Union, Ralph Edwards.
3 I was told that these documents had also been served on the WorkCover Authority, whose representatives attended Court to observe the proceeding.
4 Order 1, Rule 15 of the County Court Civil Procedure Rules 2008 (Vic) allows the Court to determine the procedure to adopt and give directions where the manner or form of a procedure is not, for instance, prescribed by the Rules or under legislation. Pursuant to this Rule, I directed that the application of the CFMEU proceed by way of the Summons filed 24 June 2014, supported by affidavit sworn by Ralph Edwards on 20 June 2014.
5 Mr Berardi is represented by solicitors, Nowicki Cabone, in the application made by him pursuant to section 134AB of the Act (the section 134AB application). Section 134AB sets out the requirements for bringing proceedings in accordance with the section. This provision allows a worker to recover damages in respect of work-related injury, if the injury is a serious injury and arose on or after 20 October 1999. On 26 June 2014, Nowicki Carbone notified the Court that the firm did not have instructions to act in the unfair dismissal application.
6 I was told that solicitors, Winter & Co Lawyers had previously represented Mr Berardi in the unfair dismissal application and, in the days preceding the leave application, his new solicitors, Schembri & Co. Lawyers, gave notice to the Commission that the firm was acting for Mr Berardi.
7 I abridged time for filing and service of any affidavit in response.
8 An affidavit sworn on 26 June 2014 by solicitor, Cameron Ian Forster was filed on behalf of Mr Berardi. This affidavit was principally concerned with establishing a basis for a costs application.
9 The unfair dismissal application is listed for hearing on 18 July 2014. The Commission had directed the CFMEU to file submissions, witness statements and other relevant documentary material by 27 June 2014.
10 In view of the timetable imposed, I heard and determined the leave application and, among the orders made, I granted leave to the CFMEU to rely on the proposed statement of claim and the affidavit. My reasons for so ordering are contained in the following paragraphs.
The law
11 The law imposes an obligation on a party or parties to a proceeding to use documents obtained under compulsion only for the purpose related to the subject litigation. In HearnevStreet[1] the majority of the High Court explained the principle underlying the implied undertaking in the following way:
“Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits.”
[1] (2008) 235 CLR 125 [96]
12 In the application of this principle, later authorities have confirmed that an applicant must demonstrate special circumstances which warrant the release of documents for use in an unrelated proceeding. The non-exhaustive list of factors, which may be relevant in determining whether special circumstances exist are set out in an earlier decision in the Federal Court of Australia, Springfield Nominees Pty Ltd v Bridgelands Securities Ltd[2] and applied in the Ruling delivered by His Honour Justice Forrest in the Victorian Supreme Court in E.M. Rowe v Silverstein & Ors.[3]
[2] (1992) 38 FCR 217, 225
[3] [2009] VSC 157, [8]
13 These factors include, the nature of the document, the circumstances under which it came into existence, the attitude of the maker of the document and any prejudice he or she may sustain, whether the document pre-existed the litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, most importantly, the likely contribution of the document in achieving justice in the unrelated proceeding.
14 I will return to discuss the application of each of these factors in this case shortly.
The application
15 On 20 February 2014, Mr Berardi filed the unfair dismissal application in the Commission seeking a remedy for alleged unfair dismissal by his employer, the CFMEU. I was told that Mr Berardi was required to file the unfair dismissal application within 21 days after the alleged dismissal took effect. The application represented the date on which dismissal took effect as: 28 January 2014 to 31 January 2014.
16 On 18 March 2014, the CFMEU filed a response to the unfair dismissal application in which it contested the application on the grounds that: the unfair dismissal application had been made out of time, Mr Berardi had not been dismissed but had resigned on 27 January 2014 and he had earned more than the high income threshold relevant to the application.
17 It was common ground that, after the unfair dismissal application was made, the CFMEU was served with the proposed Statement of Claim prepared by Nowicki Cadone pursuant to Clause 5 of the Ministerial Directions and dated 28 March 2014 (the proposed Statement of Claim) and with the affidavit sworn by Mr Berardi on 28 March 2014 (the affidavit) (collectively the documents).
18 The proposed Statement of Claim, among other things, alleges that Mr Bernardi ceased working for the CFMEU on 28 January 2014 as a result of work-related injuries and it contains an allegation as to Mr Bernardi’s gross weekly earnings. In his affidavit, Mr Berardi, among other things, deposes to having resigned on 28 January 2014 on medical grounds and to earning approximately $2442.63 gross per week prior to sustaining injury.
19 The matters contained in the proposed Statement of Claim and sworn to by Mr Bernardi are relevant to determination by the Commission of each matter raised by the CFMEU in its defence of the unfair dismissal application.
20 The CFMEU sought to rely on the information disclosed in the documents in the unfair dismissal application. The application was made to the Court to avoid contempt proceedings involving both the CFMEU and its legal representatives should the documents be covered by the implied undertaking not to use documents filed in a court for a purpose unrelated to the conduct of the section 134AB application in the County Court either for leave to recover damages for pain and suffering and/or pecuniary loss damages or for the recovery of damages. The CFMEU believed they were and articulated the circumstances on which the CFMEU relied to obtain leave. Alternatively, counsel submitted the CFMEU was free to use the documents in the unfair dismissal application.
21 Mr Bernardi urged dismissal of the application for leave. He argued that, if the documents were covered by the implied undertaking, the circumstances on which the CFMEU relied, were insufficient to warrant release of the documents for use in the unfair dismissal application. In the alternative, it was submitted that, either section 44 or section 242A of the Act, prevented the Court from granting leave to use the information contained in the documents in the unfair dismissal application.
The submissions
22 In this application the documents have not been received into evidence, nor compelled to be produced either by reason of a rule of court or by reason of a specific order of a court.
23 On behalf of Mr Bernardi, it was submitted that there was no proceeding before the Court and no compulsion to disclose the information. Accordingly, the first matter to be decided was whether, in all the circumstances, the implied undertaking was to be confined to proceedings already filed and, if of wider application, whether Mr Bernardi was compelled in the unrelated section 134AB application to disclose the information contained in the documents.
24 It was submitted on behalf of the CFMEU that, notwithstanding the absence of a current proceeding issued in the County Court, the principle was one of substantive law which applied where, as in this case, the documents had been produced by Mr Bernardi under compulsion of the Act. In particular sub-sections 134AB (4) and (5) of the Act established the basis upon which Mr Bernardi was entitled to apply to establish a serious injury under the Act.
25 Relevantly, under sub-section (5)(c) copies of all medical reports and affidavits attesting to other material existing when the application was made under sub-section (4) of which Mr Bernardi or his legal representative was aware and on which he intended to rely, or the substance of which he intended to adduce in evidence, in proceedings in accordance with section 134AB or in any related proceedings was required (must) accompany his application.
26 The information contained in Mr Bernardi’s affidavit was information upon which he would intend to rely in either a serious injury application or later damages trial. Moreover, as I understood the process by which an application under section 134AB proceeds, the proposed Statement of Claim was also required, although only in the form of a proposal until filed in the damages action.
27 I did not understand either Rowe’s case, or the later ruling of His Honour Justice Robson in Australian Securities and Investments Commissionv Pattison,[4] to limit the implied undertaking principal explained by the High Court to cases where documents are provided under court order or by reason of a rule of court. In the present case, the question is whether the documents produced and served on the CFMEU were produced under compulsion.
[4] [2011] VSC 252
28 In my view, senior counsel was correct in his submission that the implied undertaking was a principle of substantive law which casts an obligation on both the CFMEU and its legal representatives not to make collateral use of the documents which have been served by Mr Bernardi as required by the Act in respect to his proposed action for damages. The compulsion arises by reason of the requirements of the Act.
29 The factors the CFMEU submitted demonstrated special circumstances were as follows:
· the documents were prepared and came into existence after the commencement of the unfair dismissal application for the purpose of another claim for compensation;
· a reasonable expectation existed that particularly the affidavit would enter the public domain and be read into evidence, as for instance in an application to the County Court for leave under sub-section 134AB(16);
· Mr Bernardi has contested the application to release the documents for use in the unfair dismissal application;
· Mr Bernardi could not establish prejudice simply by complaining that reliance on these documents could impede his prospects of success before the Commission. As it turned out, the prejudice articulated on Mr Bernardi’s behalf was confined to just such a concern, namely the potential use of this information by the Commission in deciding the unfair dismissal application;
· the information in the documents was not commercially sensitive and, to the extent the documents contained personal data, this was directly relevant to achieving justice and the Commission determining the issues in the unfair dismissal application;
· the documents were served on the CFMEU as the employer as part of the initiation of the section 134AB application.
30 I was satisfied, having regard to the above-mentioned matters, that special circumstances had been demonstrated.
Any prohibition on release of the documents under the Act
31 As mentioned, on behalf of Mr Berardi, it was submitted that section 44 and section 242A of the Act precluded the release of the documents for use in the unfair dismissal application.
32 In my view, section 44(3) of the Act did not assist Mr Bernardi in opposing the application for leave. Save for the exceptions nominated, this provision only precludes the use of evidence given before the County Court in any civil or criminal proceedings. This application did not involve evidence given on oath in the County Court.
33 In 1994, section 242A was inserted in Division 2 of Part VIII of the Act. Section 242A creates an offence in respect to unauthorised use of information obtained under, or pursuant to the Act or the Accident Compensation (WorkCover Insurance) Act 1993.
34 The Explanatory Memorandum tells us that the offence covered by the new provision was previously contained in the Accident Compensation (Medical Authority and Settlements) Regulations 1993.
35 Part VIII of the Act contains the General provisions, which might properly be called the anti-fraud provisions because Division 1 contain provisions relating to the WorkCover Authority’s obligation to notify IBAC of corrupt conduct and Division 2 contains provisions relating to the Authority’s power to obtain information and evidence relating to its anti-fraud activities. Among other things, these provisions permit access to police records, inspections of premises and records and impose penalties for offences relating to, for example, hindering or assaulting a person exercising these powers.[5]
[5] See sections 239, 239AAA, 240, 240A and 241 respectively
36 Having regard to particularly its context in the Act, I was satisfied the submission that this provision was only intended to create an offence for unauthorised disclosure of information obtained in the circumstances described under Part VIII of the Act, was probably correct.
37 Accordingly, if the implied undertaking did not apply to the documents, the CFMEU was free to use these documents in the unfair dismissal application.
38 The application was vigorously contested by Mr Berardi. In these circumstances, I was also satisfied that cost should follow the event and I ordered him to pay the CFMEU’s costs of the application to be taxed in default of agreement by the Cost Court.
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