Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union

The Federal Court of Australia heard a case between the Director of the Fair Work Building Industry Inspectorate (the Director) and the Construction, Forestry, Mining and Energy Union (CFMEU), along with two individuals, Kane Pearson and Adam Olsen. The Director sought declaratory orders and monetary penalties against the respondents for alleged contraventions of the Fair Work Act 2009 at a construction site in Darwin. The respondents denied the allegations and claimed privilege against disclosing information that might expose them to pecuniary penalties.

The court had to determine whether the CFMEU's defence was adequate, and if not, whether an order for further discovery should be made. The court found that the CFMEU's defence was not adequate, as it was not entitled to use the privilege of Mr Pearson and Mr Olsen, and therefore, did not have to comply with the pleading rules. The court allowed the CFMEU to file an amended defence by 10 July 2014.

Regarding the discovery request, the court found that certain documents were discoverable. The purpose of the discovery sought was to test the veracity of the two proposed witnesses to be called by the Director. The court limited the discovery to documents that directly record or report on the alleged events and being the primary recollection of the two proposed witnesses, or records of interview by officers of the Director of those two persons, confined to information provided by those two persons.

The court ordered the Director to provide the requested discovery within 14 days of service of any amended defence of the CFMEU. If there was no amended defence, this order would not be activated until after the filing and service of witness statements on behalf of the respondents in accordance with the orders as to the mode of trial set out below, that is by 29 August 2014. The court also outlined the mode of trial and specified the dates for filing and serving witness statements, indices of documents, and the book of documents. The proceeding was listed for trial in Darwin on 17 September 2014, with an estimate of two days.