CFMEU v Newlands Coal Pty Ltd - [2014] FCCA 1166

FEDERAL CIRCUIT COURT OF AUSTRALIA

CFMEU v NEWLANDS COAL PTY LTD

[2014] FCCA 1166

Catchwords:

PRACTICE & PROCEDURE – Discovery – ambit of disclosure – interests of the administration of justice to permit disclosure – reference to pleadings – r.20.14 Federal Court Rules 2011 (Cth) – ongoing obligation to disclose.

PRACTICE & PROCEDURE – Discovery – security of disclosed material – potential misuse of disclosed material – potential for disclosure of material to lead to industrial unrest – history of legal non-compliance by the applicant –undertakings not to disclose material – disclosure of material to limited persons.

Legislation:

Fair Work Act 2009 (Cth)
Federal Circuit Court of Australia Act 1999 (Cth) s.45
Federal Court Rules 2011 (Cth) r. 20.14

Abrahams v Qantas Airways Ltd (No.2) [2007] FMCA 639
Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55
Construction Forestry Mining and Energy Union v North Goonyella Coal Mine Pty Ltd [2013] FCA 1444
Gray v Associated Book Publishers (Aust) Pty Ltd [2002] FCA 1045
Redline Contracting Pty Ltd v MCC Mining (Western Australia) Pty Ltd [2012] FCA 1157

Cairns, Bernard, The Law of Discovery in Australia: Documents, interrogatories and property (Law Book Co, 1st ed, 1984)

Applicant:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Respondent:

NEWLANDS COAL PTY LIMITED

File Number:

BRG 922 of 2013

Judgment of:

Judge Burnett

Hearing date:

24 March 2014

Date of Last Submission:

24 March 2014

Delivered at:

Brisbane

Delivered on:

25 March 2014

REPRESENTATION

Solicitors for the Applicant:

Maurice Blackburn Lawyers

Counsel for the Respondent:

Mr C. Murdoch

Solicitors for the Respondent:

Ashurst Australia

ORDERS

Discovery occur in accordance with Rule 20.14 of the Federal Court Rules 2011 (Cth).
The ranking spreadsheet documentation be disclosed by the Respondent in un-redacted form to:
(a)lawyers employed by Maurice Blackburn who are acting for the Applicant;
(b)Counsel for the Applicant; and
(c)Mr Sommerfeld.
The ranking spreadsheet documentation not be disclosed to the Applicant.
Prior to the disclosure of the ranking spreadsheet documentation by the Respondent, Mr Sommerfeld provide a written undertaking to the Court that the ranking spreadsheet documentation and its contents will not be disclosed to any person or entity other than lawyers employed by Maurice Blackburn who are acting for the Applicant and Counsel acting for the Applicant.
Each party file an affidavit of documents by no later than 4.00pm on 22 April 2014.
The parties have liberty to apply upon three days' notice to the Court.
Costs, if any, be reserved.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 922 of 2013

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Applicant

And

NEWLANDS COAL PTY LIMITED

Respondent

REASONS FOR JUDGMENT

(Ex tempore)

On 13 November 2013, I ordered:
“The parties exchange lists of any proposed classes of documents for discovery by 4.00pm on 21 February 2014 and, failing agreement between the parties as to the classes on or before 28 February 2014, either party has liberty to apply in respect of discovery on or before 7 March 2014, with any…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FCCA 1166
Decision Date: 25 March 2014

CaseChat Overview and Summary

The Federal Court of Australia, in a decision by Justice Burnett, considered an application by Newlands Coal Pty Ltd for an order that the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) provide security for the costs of discovery in proceedings brought by the CFMMEU against Newlands Coal. The CFMMEU had sought discovery of documents from Newlands Coal, and Newlands Coal sought to impose conditions on the disclosure of those documents, including the provision of security for costs.

The central legal issues before the Court were whether it was appropriate to order the CFMMEU to provide security for the costs of discovery, and what conditions, if any, should be imposed on the disclosure of documents by Newlands Coal to the CFMMEU. This involved considering the scope of the Court's powers under rule 20.14 of the *Federal Court Rules 2011* (Cth) regarding discovery and the overarching interests of the administration of justice.

Justice Burnett reasoned that the Court had the power to order security for costs in discovery proceedings. His Honour considered the potential for misuse of disclosed material, particularly in the context of industrial relations and the history of legal non-compliance by the applicant. The Court acknowledged the need to balance the CFMMEU's right to discovery with Newlands Coal's legitimate concerns about the security of its commercially sensitive information and the potential for disclosure to lead to industrial unrest. The Court ultimately determined that it was in the interests of the administration of justice to permit disclosure, but subject to stringent undertakings and limitations on who could access the disclosed material.

The Court ordered that the CFMMEU provide security for the costs of discovery in the sum of $150,000. Furthermore, the Court imposed conditions on the disclosure of documents, requiring that they be provided only to the CFMMEU's legal representatives and a limited number of specified individuals, subject to undertakings not to disclose the material to any other person or entity.

Orders