Director, Fair Work Building Industry Inspectorate v HALL
[2015] FCCA 2874
•29 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DIRECTOR, FAIR WORK BUILDING INDUSTRY INSPECTORATE v HALL & ORS | [2015] FCCA 2874 |
| Catchwords: INDUSTRIAL LAW – Principles in relation to discovery – whether “prosecutorial discovery” is applicable in civil proceedings – blanket and general terms of discovery sought not directly or identifiably related to the issues pleaded – importance of the binding nature of pleadings and of the pleadings relevantly identifying the matters in issue – application for discovery brought prior to either party filing affidavit evidence – model litigant responsibilities to be exercised by the Applicant. |
| Legislation: Fair Work Act 2009, ss.494, 497, 499, 500, 503, 551 Federal Circuit Court of Australia Act1999, s.45(1) & (2) |
| Abrahams v Qantas Airways Ltd (No.2) [2007] FMCA 639 Visy Industries Holdings Pty Ltd v Australian Competition and Consumer Commission (2007) 161 FCR 122; [2007] FCAFC 147 R. Ananian-Welsh & K. Gover, “Commonwealth v Director, Fair Work Building Industry Inspectorate: The End of Penalty Agreements in Civil Pecuniary Penalty Schemes?” (2015) 37 Sydney Law Review 417-435 |
| Applicant: | DIRECTOR, FAIR WORK BUILDING INDUSTRY INSPECTORATE |
| First Respondent: | DEAN HALL |
| Second Respondent: Third Respondent: Fourth Respondent: Fifth Respondent: Sixth Respondent: Seventh Respondent: | HALAFIHI KIVALU JOHNNY LOMAX JASON O’MARA ZACHARY SMITH KENNETH MILLER CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
| File Number: | CAG 78 of 2014 |
| Judgment of: | Judge Neville |
| Hearing date: | 28 August 2015 |
| Date of Last Submission: | 14 September 2015 |
| Delivered at: | Canberra |
| Delivered on: | 29 October 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms T McDonald SC |
| Solicitors for the Applicant: | Clayton Utz, Canberra |
| Counsel for the Respondents (excepting the Second Respondent): | Ms Argiropoulos |
| Solicitors for the Respondents (excepting the Second Respondent): | Slater & Gordon, Melbourne |
ORDERS
The Application in a Case, filed 15th June 2015, be dismissed;
The matter is to proceed by way of affidavit evidence;
Within four weeks of the date of the publication of these reasons, the Applicant and the Respondents are to file and serve a list of witnesses who will provide, or who are likely to provide, affidavits in the proceeding;
In consultation with the Court, and subject to any scheduled mediation, a timetable is to be agreed for the filing of affidavits and tender bundle/court book;
Within 21 days after the filing of affidavits, leave be granted to all parties to make any further application for discovery.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 78 of 2014
| DIRECTOR, FAIR WORK BUILDING INDUSTRY INSPECTORATE |
Applicant
And
| DEAN HALL |
First Respondent
| HALAFIHI KIVALU |
Second Respondent
JOHNNY LOMAX
Third Respondent
JASON O’MARA
Fourth Respondent
ZACHARY SMITH
Fifth Respondent
KENNETH MILLER
Sixth Respondent
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Seventh Respondent
REASONS FOR JUDGMENT
Introduction
The substantive claims in the current proceeding concern alleged breach (or breaches) of various sections of the Fair Work Act 2009 (Cth) (“the Act”), such as s.494 (the requirement that certain officials be permit holders under the Act), and s.497 (production of entry permit). Other breaches are pleaded in relation to ss.499, 500, and 503 of the Act.
The Amended Statement of Claim (filed 3rd February 2015) pleads that, between approximately 21st August 2013 and 11th March 2014, at three different construction sites in the Canberra region, there were some 23 contraventions of the Act. Without detailing them here, the Amended Statement of Claim sets out the relevant factual background to and foundation for each of the allegations.
Again without going into detail, the Defence filed on behalf of the Respondents admits some of the allegations but deny others. There is a significant degree of factual contest between the parties.
By Application in a Case, filed 15th June 2015, the Respondents seek[1]
(a)a declaration, pursuant to s.45(1) of the Federal Circuit Court of Australia Act1999 (Cth) (“the FCC Act”), that the Respondents be permitted to seek discovery from the Applicant;
(b)an order for “disclosure” by the Applicant to the Respondents of the documents described in the Schedule to the Application in a Case (the Schedule is set out later in these reasons); and
(c)an order requiring the Applicant (i) to file and serve an affidavit of documents and (ii) to produce the documents described in the said Schedule by a date prior to the dates fixed for mediation and the filing of outlines of evidence.
[1] By Notice of Withdrawal as a Lawyer, filed 10th August 2015, the Respondents’ solicitor confirmed that she no longer acted for the Second Respondent, Mr Kivalu. To date, Mr Kivalu has not engaged with and did not appear at the hearing on 28th August regarding the current Application for Discovery. The Court is generally aware that Mr Kivalu is currently facing certain criminal charges arising out of evidence given before the Royal Commission into Trade Union Governance and Corruption.
The Applicant, in terms, opposes the Respondents’ Application. However, at the hearing of the Application on 28th August, in the course of discussion, the Applicant agreed to a number of categories of documents suggested by the Bench that could reasonably and properly be discovered to the Respondents. This ultimately led to an agreed Minute of Orders that was formalised by a consent order (also dated 28th August 2015) by which the Applicant agreed to provide to the Respondents various contemporaneous records (by reference to dates nominated in the Amended Statement of Claim, filed 23rd January 2015), such as site attendance records.[2]
[2] By a document filed on 19th October that list of documents in the Applicant’s possession has now been provided.
With some agreement reached regarding the discovery of some records and documents by the Applicant, the issue(s) that remain for determination concern (a) the applicable principle(s) (civil or prosecutorial) upon which the Court could or should found any order for discovery, and in the light of that principle, and (b) the scope of the discovery by the Applicant.
Reduced to its most basic, the gravamen of the current dispute relates to the breadth and generality of the discovery sought by the Respondents, and whether, because penal sanctions are sought against them, there is (as submitted by the Respondents) in fact a “third kind or type” of proceedings, namely “quasi-criminal” (in addition to the usual civil/criminal dichotomy) which would justify the Court making an order for “prosecutorial disclosure” in the Respondents’ favour. The Applicant rejects the latter argument as contrary to established authority.
For the reasons that follow, in my view
(a)the scope of the discovery sought essentially seeks disclosure of the kind only available in criminal proceedings and which, conversely, is not available in the current civil proceeding. For this reason alone, and subject to what is said later in these reasons, the Application must be refused and formally dismissed;
(b)in accordance with authority of long standing, prosecutorial disclosure is not available or required in civil proceedings;
(c)for the purposes of the current matter, there is no third kind or type of proceedings, such as quasi-criminal. The current proceedings are clearly civil. In any event, it is not for an intermediate court such as this Court to venture upon a determination that would see the establishment of a new or discrete quasi-criminal course or procedure in cases like the present. Such matters are for a superior court, or for the legislature, to determine;
(d)the scope of the discovery sought by the Respondents remains at a significant level of generality, and with insufficient particularity to the contraventions pleaded to warrant discovery at the current time;
(e)following regular discussion with the parties during the hearing on 28th August,[3] and noting that the Applicant formally advocates for it,[4] the matter should properly proceed by way of affidavit evidence. Prior to fixing a timetable for the filing of affidavits (usually six weeks prior to trial), within four weeks of the date of the publication of these reasons, each party is to file and serve a list of witnesses who will provide an affidavit in the proceeding. To the degree that it is necessary or required, within 21 days after the filing of affidavits, leave be granted to all parties to make further application for discovery.
[3] See Transcript (28th August 2015) pp.3, 4, 16 cf. pp.32 & 35.
[4] See the Applicant’s Supplementary Submissions, filed 11th September 2015, par.2(b), where it is submitted that “filing of affidavits and compilation of tender bundles is the most efficient way of dealing with the Respondents’ claim that they need to know the case against them.”
Terms and Scope of the Discovery Sought by the Respondents
The Schedule to the Respondent’s Application in a Case, filed 15th June 2015, seeks discovery of the following classes of documents:
1) A copy of any recorded interview or conversation, transcript of interview or conversation, statement (whether signed or unsigned), notes or other documents (whether in written, printed, electronic or computerised form) of any person named in the Amended Statement of Claim dated 23 January 2015;
2) A copy of any recorded interview or conversation, transcript of interview or conversation, statement (whether signed or unsigned), notes or other documents (whether in written, printed, electronic or computerised form) of any person other than those referred to in paragraph 1, describing or related to the factual matters described in the Amended Statement of Claim;
3) A copy of any notes, reports, log books, running sheets and other documents (howsoever described and whether in written, printed, electronic or computerised form) by investigators, inspectors, employees or representatives of the Director, Fair Work Building Industry Inspectorate describing or related to the factual matters described in the Amended Statement of Claim dated 23 January 2015;
4) A copy of any correspondence (whether in written, printed, electronic or computerised form) by investigators, inspectors, employees or representatives of the Director, Fair Work Building Industry Inspectorate describing or related to the factual matters described in the Amended Statement of Claim dated 23 January 2015;
5) A copy of any Notices to Produce issued by the Director, Fair Work Building Industry Inspectorate and any documents produced in response to those Notices related to the factual matters described in the Amended Statement of Claim dated 23 January 2015;
6) A copy of any photographs, audio and/or visual recordings related to the factual matters described in the Amended Statement of Claim dated 23 January 2015;
7) A copy of the investigation file of the Director, Fair Work Building Industry Inspectorate, in so far as it contains any documents not referred to in paragraphs 1-6.
Discovery: Submissions
Both parties provided helpful, detailed written submissions, both prior to and after the hearing on 28th August. In summary, in their primary submissions, the Respondents contended as follows.
The Respondents’ Submissions
After noting (as did the Applicant) and setting out the terms of s.45 of the FCC Act, which provides for a rebuttable presumption against making orders for discovery subject to considerations of “the interests of the administration of justice”, and Rule 14.02 of the Federal Circuit Court Rules 2001, which provides for the making of a declaration for discovery generally or in relation to particular classes of documents, the Respondents set out some basal principles in relation to relevant considerations in making an order for discovery.
By reference to decisions of this Court in Abrahams v Qantas Airways Ltd (No.2), Harwood v Trustee of the Property of John Mervyn Harwood, and CFMEU v Newlands Coal Pty Ltd, the Respondents said that the administration of justice in the current matter warranted the order for discovery as sought.[5] The Respondents contend that the documents sought relate directly to the issues raised by the pleadings.
[5] Abrahams v Qantas Airways Ltd (No.2) [2007] FMCA 639; Harwood v Trustee of the Property of John Mervyn Harwood [2015] FCCA 1058; CFMEU v Newlands Coal Pty Ltd [2014] FCCA 1166.
Given the generality and (in my view) blanket nature of the discovery sought, it was not explained what the actual connection was between the matters pleaded and the documents sought to be discovered.
Next the Respondents contended that because there is a “genuine factual dispute” regarding the events pleaded, it was necessary to have access to all records in the possession of the Applicant. It would, it was suggested, enable the Respondents “to better analyse and assess the strength of the case against them, clarify and potentially narrow the issues in dispute … and facilitate the just and efficient resolution of the parties.”[6] The Respondents also submitted that allowing discovery “would enable [them] to more meaningfully participate in the mediation process.”
[6] Respondents’ Outline of Submissions, filed 19th June 2015, par.16.
Again by way of observation only at this stage, such a submission seems to ignore the fact that both parties, and the Applicant in a particular way as the moving party, are and will be bound by their respective pleadings and by the evidence filed. The Applicant bears the usual onus, according to the usual standard in civil proceedings (as the current proceeding is) to make good, by the evidence adduced, the case as pleaded. Absent any application to amend, the Applicant is and will be bound by the pleadings as filed.[7]
[7] Generally, among many authorities regarding the binding nature of pleadings, see Banque Commerciale SA (en liq) v Akhil Holdings Ltd (1990) 169 CLR 279.
The Respondents submitted that the documents sought would be readily available to the Applicant and be able to be retrieved at minimal cost.
Finally, in their primary submissions the Respondents said that orders for discovery of similar documents were made in Director of the Fair Work Building Inspectorate v Construction, Forestry, Mining and Energy Union.[8]
[8] Director of the Fair Work Building Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FCA 652.
In its supplementary submissions, filed 11th September 2015, the Respondents referred to a range of cases that were the subject of brief discussion during oral argument on 28th August. Again briefly stated, the Respondents relevantly submitted as follows.
By reference to Anchorage Capital Partners Pty Ltd v ACPA Pty Ltd (No.1), the Respondents said that the observation in that case that discovery is usually or more sensibly ordered only after the parties’ evidence is put on was not a rule of universal application.[9]
[9] Anchorage Capital Partners Pty Ltd v ACPA Pty Ltd (No.1) [2014] FCA 765.
Further, the Respondents said that it would be unfair to put on evidence without there having been discovery in circumstances where the Applicant has conducted a formal investigation prior to instituting proceedings. The Respondents contended that the importance of discovery is to ensure that any statements obtained by the Applicant and which do not support the Applicant’s case are made available to the Respondents.
Again I simply observe that such submissions seem to proceed on the basis that, civil proceedings in which relief is sought of specific penalties against the Respondents, is akin to criminal proceedings, which in turn requires that prosecutorial disclosure be provided.
In relation to the recent High Court decision in CFMEU v Boral Resources (Vic) Pty Ltd, the Respondents said that, in the light of comments by the High Court, at [44], the Applicant was in fact and in effect a “prosecuting authority”, which had powers compulsorily to require the production of documents and to examine persons.[10] Further, the Respondents again submitted that the current proceeding is “penal”, and that although they are civil in nature they require “some of the safeguards applicable to criminal proceedings including, in the case of natural persons, the privilege against self-incrimination and the privilege against exposure to penalty.”[11]
[10] Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 320 ALR 448.
[11] CFMEU v Boral Resources (Vic) Pty Ltd at 320 ALR [66] – [67] per Nettle J.
I simply note at this juncture that Nettle J’s comments in Boral, at [66] – [69], [again] clearly distinguish between criminal proceedings where the “power of the state” is arrayed against a defendant, and where a person’s liberty may be at risk, on the one hand, and what might be described as ordinary civil proceedings, on the other. In Boral, the substantive proceedings were for criminal contempt. In the current matter, “the power of the state” is not formally arrayed against the Respondents as it is in criminal proceedings (accepting that the Applicant is a statutory office with regulatory powers), and perhaps even more significantly, nor is there any question of the liberty of any of the Respondents being at risk.
The remainder of the respondents’ supplementary submissions concerned, among other things, the general acceptance of the principles set out in the Federal Court decision of CFMEU v Rio Tinto Coal Australia Pty Ltd.[12] The submissions also noted other proceedings in which the CFMEU has been involved in which discovery of a kind, it was submitted, similar to that which is sought in the current matter was granted. I need not detail each of those proceedings.
[12] CFMEU v Rio Tinto Coal Australia Pty Ltd [2014] FCA 462 at [91].
The Applicant’s Submissions
In the primary submissions, filed 26th June and 25th August 2015, in accordance with authority that was noted by both parties, the Applicant accepted that in considering making an order for discovery, the Court may have regard to the following matters:[13]
[13] See NAQR & Ors v Minister for Immigration [2002] FMCA 27.
a) Whether the documents sought are directly relevant to the issues in dispute;
b) Other pre-trial directions such as exchange of witness statements or outlines of evidence and court books/tender books;
c) The purpose of the discovery sought;
d) Whether discovery would narrow the issues;
e) Whether there is consent to discovery;
f) Whether the Respondents were directly involved in the facts alleged in the proceedings; and
g) The absence of an ability of the Court to order costs if the documents produced pursuant to the order are of no utility in the proceedings.
The Applicant noted that the onus was on the Respondents to rebut the presumption, under s.45 of the FCC Act, against discovery; they had not done so merely by asserting that the documents sought were related directly to the matters pleaded. The Applicant further contended that rather than facilitating the resolution of the matter, and or the efficient conduct of the case, discovery would likely have the opposite effect, and would certainly result in the Applicant incurring significant additional cost and expense.
As well, the Applicant submitted that if, after discovery, the documents produced were of limited or no relevant value to the litigation, it would be very difficult to recover the costs incurred by the Applicant in providing them. In a similar vein, the Applicant said that there was no established benefit identified by the Respondents that would warrant an order for the discovery sought.
Among other things, the Applicant contended that the orders sought amounted to (a) a “fishing expedition”, (b) the Respondents seeking prosecutorial disclosure, and (c) were so broad that they were oppressive to the Applicant.
Further, the Applicant noted that some categories of documents sought (e.g. categories 1 & 3) appear to be relevant only to issues of credit, for which discovery will not be permitted.[14]
[14] See Visy Industries Holdings Pty Ltd v Australian Competition and Consumer Commission (2007) 161 FCR 122 at [105].
By reference to cases such as Adler v ASIC, ASIC v Rich, and Visy Industries Holdings Pty Ltd v ACCC, the Applicant submitted that obligations of prosecutorial fairness, including prosecutorial disclosure, do not apply to civil proceedings.[15]
[15] Adler v Australian Securities and Investments Commission (2003) 179 FLR 1 at [678], Australian Securities and Investments Commission v Rich (2005) 53 ACSR 752 at [358], and Visy Industries Holdings Pty Ltd v Australian Competition and Consumer Commission (2007) 161 FCR 122 at [105].
As well, by reference to ACCC v Advanced Medical Institute Pty Ltd, where the Federal Court of Australia refused an application for discovery in terms very similar to those sought by the Respondents here, namely for the ACCC’s complete investigation file, the Applicant contended that likewise here the Application which seeks “a copy of the investigation file of the Director, Fair Work Building Industry Inspectorate”, should be refused.[16]
[16] Australian Competition and Consumer Commission v Advanced Medical Institute Pty Ltd [2005] FCA 366 at [16].
The Applicant also submitted that, given the breadth of the discovery sought, there would be many documents to which privilege would necessarily attach. The cost associated with identifying such documents would be significant.
In the supplementary submissions, filed 11th September 2015, the Applicant addressed, primarily, three decisions, those of the Federal Court of Australia in CFMEU v Rio Tinto Coal Australia Pty Ltd (“Rio Tinto”) and Anchorage Capital Partners Pty Ltd v ACPA Pty Ltd (“Anchorage Capital”), and by the High Court in CFMEU v Boral Resources (Vic) Pty Ltd (“Boral”).
In relation to Rio Tinto, the Applicant noted that Flick J affirmed, at [99], that (a) each application for discovery ultimately depends on its own facts, and (b) as a general principle, discovery is discouraged and will be ordered only when specifically necessary. This led to the further submission that the current Application is/was premature, given that no evidence has yet been filed. Indeed, the Applicant noted that while discovery was granted in Rio Tinto, it was of a rather more confined and limited nature to that originally sought by the CFMEU.
Also in relation to Rio Tinto, the Applicant observed that, at [95], Flick J referred to the Federal Court of Australia Rule in relation to discovery which “emphasises the considerable shift in attitude and the confined nature of the discovery which is now standard.”
In relation to Anchorage Capital, the Applicant noted Perram J’s comments regarding discovery (which his Honour refused), namely:
(a)a general disinclination to order discovery before evidence has been filed and served;
(b)where pleadings have not been closed and no evidence filed, ordinarily discovery would not be ordered so early in a case;
(c)postponing discovery until after evidence is filed is more likely to reduce the ambit of any discovery ultimately ordered; and
(d)generally, it is more apt to require evidence to be put on before making any application for discovery, noting that this is not a universal approach.
In relation to the recent High Court decision in Boral, the Applicant submitted that it was not of any particular relevance to the current matter, particularly since s.551 of the Act makes plain that the Court “must apply the rules of evidence and procedure for civil matters when hearing proceedings relating to a contravention, or proposed contravention, of a civil remedy provision.”
Consideration & Disposition
I readily accept that significant parts of the submissions by both parties necessarily involve matters that are currently before the High Court in Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union, most notably the somewhat (or sometimes) opaque distinction between civil and criminal proceedings.[17] Indeed, that distinction has been canvassed at some length in the course of the hearing of the appeal before the High Court.[18] That said, given that this is an intermediate Court, it is relevantly bound by authority of the superior courts (Federal Court of Australia and Supreme Courts that have made rulings in comparable matters). In my view, it is not appropriate for this Court to venture into areas, such as where the distinction or dividing line begins and ends in civil and criminal proceedings, particularly where, as here (as I have said), there is a matter that is currently before the High Court of Australia that is discussing precisely this question albeit in a different context.
[17] Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (2015) 229 FCR 331.
[18] See Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate & Ors; Construction, Forestry, Mining and Energy Union & Anor v Director, Fair Work Building Industry Inspectorate & Anor [2015] HCATrans 259 (13 October 2015). See also the discussion in R. Ananian-Welsh & K. Gover, “Commonwealth v Director, Fair Work Building Industry Inspectorate: The End of Penalty Agreements in Civil Pecuniary Penalty Schemes?” (2015) 37 Sydney Law Review 417 – 435.
For current purposes, it is sufficient to note two things. First, the dividing line between civil and criminal proceedings, and the practices and procedures that apply to each kind of procedures are, at times, less than bright. For example, in Rich v Australian Securities and Investments Commission, the High Court said, at [32] and [35] (internal references omitted; emphases in original):[19]
[32] … the supposed distinction between “punitive” and “protective” proceedings or orders suffers the same difficulties as attempting to classify all proceedings as either civil or criminal. At best, the distinction between “punitive” and “protective” is elusive.
[35] That it may be possible to characterise proceedings as having a purpose of protecting the public is not determinative. And to begin the inquiry from an a priori classification of proceedings as either protective or penal invites error. It invites error primarily because the classification adopted assumes mutual exclusivity of the categories chosen when they are not, and because the classification is itself unstable. … Just as a law may bear several characters, a proceeding may seek relief which, if granted, would protect the public but would also penalise the person against whom it is granted. That a proceeding may bear several characters does not deny that it bears each of those characters.
[19] Rich v Australian Securities and Investments Commission, (2004) 220 CLR 129.
Secondly, and again subject to what the High Court might say in the near future, there is little challenge to the general proposition that civil remedy proceedings under the Act are, by definition pursuant to s.551, civil. From this follows that the Applicant does not owe a prosecutorial duty either as to fairness or disclosure.[20] It is equally clear that the Commonwealth’s special position as a regulator or other statutory office (such as the Applicant in the current proceeding) owes all of the duties that apply to a model litigant, which are above, and which do not otherwise apply to, other litigants.[21]
[20] See Adler v Australian Securities and Investments Commission (2003) 46 ACSR 504; (2003) 179 FLR 1 at [671] - [681].
[21] Generally, see Australian Competition & Consumer Commission v Warner Music Australia Pty Ltd [2000] FCA 647; Qantas Airways Ltd v Transport Workers’ Union of Australia (2011) 280 ALR 503.
Indeed, in LVR(WA) Pty Ltd v Administrative Appeals Tribunal, the Full Court confirmed the model litigant responsibilities of the Commonwealth, and its agencies, in the following terms, at [42]:[22]
Speaking generally and without reflecting on counsel who appeared before us, being a model litigant requires the Commonwealth and its agencies, as parties to litigation, to act with complete propriety, fairly and in accordance with the highest professional standards. This obligation may require more than merely acting honestly and in accordance with the law and court rules. It also goes beyond the requirement for lawyers to act in accordance with their ethical obligations…
[22] LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166; (2012) 289 ALR 244. In the same place, by reference to a number of High Court authorities, the importance of the Commonwealth and its agencies acting for the public good and being a “moral exemplar” was stressed.
Further, in Adler v ASIC the New South Wales Court of Appeal (Giles JA; Mason P & Beazley JA agreeing) relevantly said, at [677] – [678] (emphasis added):[23]
[677] While a Crown Prosecutor should call available material witnesses, that is not because of a duty imposed by law but because it “forms part of a description of the functions of a Crown Prosecutor" (Whitehorn v The Queen (1983) 154 CLR 657 at 674 per Dawson J). It is for the Crown Prosecutor to decide what witnesses he calls (Richardson v The Queen [1974] HCA 19; (1974) 131 CLR 116 at 119-21; Whitehorn v The Queen at 573-4; The Queen v Apostilides [1984] HCA 38; (1984) 154 CLR 563 at 575). The Crown Prosecutor represents the State, and in the system of criminal justice must “act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one” (Whitehorn v The Queen at 663-4; Dyers v The Queen [2002] HCA 45; (2002) 76 ALJR 1552 at [11]).
[678] However, it has not been suggested that when the State engages in civil litigation, as it frequently does, its representative's functions have a similar content, or that failure to call a material witness can lead to reversal of a judgment in the State's favour because of miscarriage of justice. The concepts have developed in the particular circumstances of criminal proceedings. By declaring that these proceedings are to be conducted as civil proceedings, the legislature has plainly declined to pick up the concepts. It was no doubt for this reason that Mr Williams' submissions were in terms of “rules akin to those of prosecutorial fairness,” but once it is recognised not only that the proceedings are not criminal proceedings, but also that they are by prescription civil proceedings, the basis for some analogous rules is hard to see. In my opinion, Mr Williams' submission in this respect should not be accepted.
[23] The comments of the NSW Court of Appeal in Adler were followed by the Full Court of the Federal Court of Australia in Visy Industries Holdings Pty Ltd v Australian Competition and Consumer Commission (2007) 161 FCR 122 at [1], [35] & [112].
Then further, at [679] – [681], the Court of Appeal said (emphasis added):
[679] I note that in ASIC v Plymin[2003] VSC 123, a judgment given on 5 May 2003 after argument in the appeals had concluded, it was said at [549] that whatever might be the position in criminal proceedings, in proceedings governed by the rules of evidence and procedure in civil matters there was no obligation on ASIC to call some identified persons “or any other persons” as witnesses.
[680] At the heart of prosecutorial fairness is just that, fairness, in the particular circumstances of criminal proceedings. Sometimes the alleged unfairness is that the Crown did not disclose that it held uncalled evidence; that is not this case…
[681] … It is commonplace in civil litigation for a party not to call a witness notwithstanding that a statement of the witness has been served…
The authorities to which I have referred, in my view, all lead firstly to the conclusion that the statutory intention and effect of s.551 of the FW Act is sufficient, of itself, to put paid to any suggestion/submission by the Respondents that something akin to prosecutorial disclosure is appropriate in civil remedy proceedings.
Secondly, even apart from s.551, the same authorities to which I have referred confirm that prosecutorial disclosure is not applicable (or available) in civil penalty proceedings, such as those currently before the Court.
For these reasons and in the light of the principles to which I have referred, in my view, the scope of the orders sought in the Respondents’ Application is so broad as to be akin to prosecutorial disclosure, which is not permitted. This is especially so in relation to the order sought for a copy of the investigation file of the Director.
Further, in my view, the comments of Perram J in Anchorage Capital Partners Pty Ltd v ACPA Pty Ltd are the most apposite in the current circumstances. At [20] – [21], his Honour said:
[20] … At this stage the pleadings have not closed and no evidence has been proffered by either party. Ordinarily, discovery would not be ordered this early in the case. The process of delivering first pleadings and then evidence has the practical effect of reducing the issues between the parties. More generally, there is tendency for the issues in dispute between parties to reduce the longer a case is on foot (although this is not an invariable principle – some cases, like bad wine, just get worse). Postponing discovery is, therefore, usually likely to reduce the ambit of discovery.
[21] For that reason, it is regarded in many quarters as sensible to require parties to put on their evidence before seeking discovery. Whilst this will generally be the correct approach it cannot be a universal one.
Equally apposite to the facts and circumstances in this matter are the comments of Flick J in Construction, Forestry, Mining and Energy Union v Rio Tinto Coal Australia Pty Ltd, where in the course of a detailed consideration of principles that apply to discovery generally (at [91] – [99]) his Honour relevantly said for current purposes, at [93] – [94] (by reference obviously to the Federal Court of Australia Rules) (emphasis added):
[93] … r 20.11 of the Federal Court Rules 2011 provides that a party must not apply for an order for discovery unless the criteria there set forth are met. That rule provides as follows:
Discovery must be for the just resolution of the proceeding
A party must not apply for an order for discovery unless the making of the order sought will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible.
This rule “reflects the overarching purpose referred to in s 37M(1) of the Federal Court of Australia Act 1976 (Cth)”: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 2) [2011] FCA 1396 at [21], (2011) 212 IR 313 at 319 per Collier J. Although discovery facilitates proof of facts and can avoid ambush or surprise, it can also be “extremely expensive” and the discretion to order discovery is thus to be exercised in a way that best promotes the overarching purpose of the civil practice provisions set forth in s 37M: Power Infrastructure Pty Ltd v Downer EDI Engineering Power Pty Ltd (No 4) [2012] FCA 143 at [14] per Katzmann J. The Court controls the discovery process in part to ensure that the parties “are not crippled with the cost and delay of that process”: Alanco Australia Pty Ltd v Higgins (No 2) [2011] FCA 1063 at [7] per McKerracher J.
[94] … discovery is “not automatic or even ordered as a matter of course and even if the court is persuaded to make an order, the Court will fashion the order to suit the particular circumstances of the case”: Taylor v Saloniklis [2013] FCA 679 at [7] per Besanko J. The Court will not “order discovery as a matter of course, even where the parties consent, unless it is necessary for the determination of issues in the proceedings”: Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd (No 4) [2013] FCA 1044 at [33] per Mansfield J.
In my view, on the facts and circumstances outlined, and in the light of principle discussed, it is clear in this matter that the scope of disclosure/discovery sought is both too wide and also premature. Once the evidence is put on in accordance with the orders I have earlier set out, which will define (in large measure) both the evidence to be relied upon and the issues in dispute, then it may be appropriate to re-visit the issue of disclosure/discovery.
Further, and to repeat: absent proper and timely application to the Court to amend, the parties ought to be (and will be) bound by the ambit of issues disclosed by the pleadings as filed. In accordance with authority of long standing, the parameters and terms of the contest between the parties that is before the Court is defined by the detail contained in the pleadings.
Accordingly, the Court makes orders as outlined earlier in these reasons dismissing the Application in a Case for discovery filed by the Respondents, but also making provision for the orderly filing of witness lists and evidence. And, if need be once the evidence is filed, and in the light of the case as pleaded, there may be a further application for discovery.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 29 October 2015
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