Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union
[2014] FCA 374
•11 April 2014
FEDERAL COURT OF AUSTRALIA
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FCA 374
Citation: Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union
[2014] FCA 374Parties: DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, BILL OLIVER, ELIAS SPERNOVASILIS, SHAUN REARDON, DEREK CHRISTOPHER, BILLY BEATTIE and THEO THEODOROU File number: VID 321 of 2012 Judge: JESSUP J Date of judgment: 11 April 2014 Catchwords: PRACTICE AND PROCEDURE – Whether the court should order the applicant to produce a document pursuant r 20.31(3) of the Federal Court Rules 2011 (Cth) – Whether document is in the applicant’s control under r 20.31(2)(b)(i) – Document owned by third party who had not expressly forbidden the applicant to produce it – Applicant in physical possession of a copy of the document and therefore has requisite “control” within the meaning of r 20.31 – Production of document ordered Legislation: Building and Construction Industry Improvement Act 2005 (Cth)
Federal Court Rules 2011 (Cth) r 20.31Cases cited: Rochfort v Trade Practices Commission (1982)
153 CLR 134Date of hearing: 11 April 2014 Place: Melbourne Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 13 Counsel for the Applicant: R Dalton Solicitor for the Applicant: DLA Piper Counsel for the Respondents: R Doyle SC with J Fetter Solicitor for the Respondents: Slater and Gordon
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION
VID 321 of 2012
BETWEEN: DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE
Applicant
AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First RespondentBILL OLIVER
Second RespondentELIAS SPERNOVASILIS
Third RespondentSHAUN REARDON
Fourth RespondentDEREK CHRISTOPHER
Fifth RespondentBILLY BEATTIE
Sixth RespondentTHEO THEODOROU
Seventh Respondent
JUDGE:
JESSUP J
DATE OF ORDER:
11 APRIL 2014
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.On or before 16 April 2014, the applicant produce for inspection by the respondents the contract between Grocon Constructors (Victoria) Pty Ltd and Mirvac Constructions (Vic) Pty Ltd referred to in paragraph 14 of exhibit JVC-1 to the affidavit of John Van Camp affirmed on 13 February 2014.
2.On or before 17 April 2014, the respondents serve upon the applicant a list of their objections to the applicant's affidavits.
3.On or before 2 May 2014, and after consultation, the parties file a joint list setting out which of the said objections remain outstanding.
4.Any subpoenas to be served on third parties for production of documents be so served on or before 1 May 2014, and be made returnable before a Registrar of the court at 2.15 pm on 14 May 2014.
5.On or before 27 June 2014, the applicant serve upon the respondents a memorandum which identifies each witness whom it is proposed to call on subpoena and which sets out a brief statement of the evidence which it is proposed to lead from the witness in chief.
6.The parties file and serve outlines of their contentions as follows:
(a)the applicant on or before 27 June 2014;
(b)the respondents on or before 7 July 2014.
7.The proceeding be listed for hearing at 10:15 am on 14 July 2014 with an estimate of four days.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION
VID 321 of 2012
BETWEEN: DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE
Applicant
AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First RespondentBILL OLIVER
Second RespondentELIAS SPERNOVASILIS
Third RespondentSHAUN REARDON
Fourth RespondentDEREK CHRISTOPHER
Fifth RespondentBILLY BEATTIE
Sixth RespondentTHEO THEODOROU
Seventh Respondent
JUDGE:
JESSUP J
DATE:
11 APRIL 2014
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
Save for the single aspect which is dealt with below, the orders which accompany these reasons are either uncontroversial or sufficiently supported by the brief indications which I gave orally when the proceeding was before me for directions today. Nothing further needs to be said about those orders.
The single issue which caused me briefly to reserve judgment is whether the respondents should have the benefit of an order under Rule 20.31(3) of the Federal Court Rules 2011 (Cth). That rule provides as follows:
(1)A party (the first party) may serve on another party (the second party) a notice to produce, in accordance with Form 39, for the inspection of any document mentioned in a pleading or affidavit filed by the second party.
(2)The second party must, within 4 days after being served with the notice to produce, serve the first party with a notice:
(a) stating:
(i)a time, within 7 days after service of the notice, when the document may be inspected; and
(ii) a place where the document may be inspected; or
(b) stating:
(i) that the document is not in the second party’s control; and
(ii)to the best of the second party’s knowledge—where the document is and in whose control it is; or
(c)claiming that the document is privileged and stating the grounds of the privilege.
(3)If the second party does not comply with paragraph (2)(a) or (b) or claims that the document is privileged, the first party may apply to the Court for an order for production for inspection of the document.
The applicant brings this proceeding as an inspector under the Building and Construction Industry Improvement Act 2005 (Cth). His allegations relate to conduct said to have been engaged in by the respondents at a Melbourne building site under the control of Grocon Constructors (Victoria) Pty Ltd. The Amended Statement of Claim contains the following allegation:
Grocon Constructors (Victoria) Pty Limited (ACN 148 006 624) (Grocon) is and was at all material times:
….(c)in the course of that business, engaged by Mirvac Constructions (Vic) Pty Limited (ACN 088 536 636) (Mirvac) to build the Yarra’s Edge Tower 8 residential building (the Building Works) at 1 Point Park Crescent, Docklands in Victoria (Site).
In a statement exhibited to an affidavit which the applicant has caused to be filed in this proceeding, and upon which he proposes to rely, John Van Camp, the National Manager Employer Relations, and Acting Head of Human Resources, of Grocon Pty Ltd said:
Under its contract with Mirvac, Grocon is required to accept written instructions from Mirvac. I however, made it clear to Mirvac that an exception to that proviso would be where Grocon considered there to be a breach of the requirements of the Fair Work and the Building and Construction Industry Improvement Acts.
For the purposes of the present controversy, nothing seems to turn upon such distinction as there may between Grocon Pty Ltd and Grocon Constructors (Victoria) Pty Ltd, and I shall refer to them without discrimination as “Grocon”.
By notice dated 11 March 2014 given under r 20.31(1), the respondents required the applicant to produce for inspection “the contract between Grocon and Mirvac referred to at paragraph 14 of the statement of John Van Camp which is exhibit JVC-1 to his affidavit”. In response to that notice on 10 April 2014, the applicant’s solicitor wrote as follows:
In relation to the document identified in 1(a) of the Notice, I have been informed by Grocon that it regards this document as a commercial ‘in confidence’ document and is only prepared to release it on the basis of you providing the usual undertaking, which I have attached. If you could return the undertaking as soon as possible, I will provide the document to you.
The respondents have declined to give any such undertaking as the applicant required, and submit that they are entitled to have the contract produced under r 20.31. Although the applicant’s letter of 10 April 2014 did not in terms assert that the contract was not in his control as required by r 20.31(2)(b)(i), the argument today proceeded along that axis. The applicant contended that this was a document between two third parties, one of which (that which presumptively was responsible for the applicant’s immediate possession of the document) resisted its production upon the grounds stated in the letter.
It seems that the contract, or a copy of it, is in the immediate physical possession of the applicant. This would, prima facie at least, give the applicant “control” of the document for the purposes of r 20.31 (in the Rules, “control” is defined as “possession, custody or power”). The applicant’s point, however, is that, because he is not the owner of the document, such “control” as he has must be subject to the directions and instructions which he receives from the owner. As a matter of law, such a proposition cannot be accepted, at least in those categorical terms.
In Rochfort v Trade Practices Commission (1982) 153 CLR 134, the High Court considered the extent and nature of the obligation of an employee upon whom a subpoena had been served to produce documents in response thereto. The employee concerned had physical custody of the documents, but claimed not to have his employer’s authority to produce them. Neither the then rules of court nor the terms of the subpoena which had been issued qualified the employee’s duty by reference to his possession of the documents referred to. But it seems to have been accepted by Mason J (Wilson J agreeing) that, generally at least, a subpoena obliged the recipient in relation to documents of which he or she had “possession, custody or control” (see 153 CLR at 143). There may have been a question as to the obligation of a recipient in relation to documents of which he or she had no more than non-possessory power (see per Gibbs CJ, 153 CLR at 138-139), but the case at hand did not involve such a situation.
The problem in Rochfort was, in effect, the reverse: what was the obligation of the recipient of a subpoena who did have actual possession of the document, but where there was some other person who owned the document or to whom the employee was obliged to answer in relation to that possession? The effect of the judgment in the case (and here I use the words of Mason J, Wilson J agreeing) was that –
… the absence of authority from the employer to bring the documents to court and to produce them is not a material circumstance when the court's order requires them to be brought and produced.
(153 CLR at 141). It is apparent from his Honour’s reasons, and from those of Gibbs CJ, that the situation may have been different had the employee been forbidden to produce the documents to the court, but, on the facts, that was not the case.
Putting aside the situation last referred to above, it is clear from Rochfort that a person who has physical possession of a document is amenable to the process of subpoena duces tecum notwithstanding that he or she has not been authorised to produce the document to the court. Applying this reasoning to r 20.31, I would hold in the present case that the contract referred to in the respondents’ notice to produce is within the control of the applicant, whether or not he has been authorised by Grocon to produce it.
Counsel for the applicant did not, at least in terms, submit that so much of the applicant’s solicitor’s letter of 10 April 2014 as stated that Grocon was “only prepared to release” the contract under certain conditions amounted to evidence that Grocon had forbidden the applicant to produce the contract in compliance with the respondents’ r 20.31 notice unless those conditions were satisfied. In any event, I would regard the relevant terms of the letter as insufficiently clear to convey such a meaning. Had there been such a prohibition, the applicant could have dealt with the subject by affidavit. He had had the respondents’ notice for about a month when he wrote this letter. I must, therefore, hold it not to have been established that Grocon has forbidden the production of the contract to the court or, for that matter, to a party to a proceeding in the court.
Neither has the applicant, or Grocon, gone on affidavit as to the nature of the concerns which are, apparently, held with respect to the production of the contract. Although I was told that Grocon had permitted the applicant to have physical custody of the contract on the understanding that it not be disclosed to anyone else, there was no evidence to that effect. And it was not suggested that Grocon had not, by its presumed lines of communication with the applicant for the purposes of the preparation of the latter’s case in this proceeding, had a sufficient opportunity to put the applicant in possession of such instructions as might have been made the subject of an affidavit in resistance to the respondents’ application under r 20.31.
In the circumstances, there appears to be no sufficient basis for denying the respondents their presumptive entitlement to an order under r 20.31(3). Such an order will accompany the publication of these reasons.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate:
Dated: 11 April 2014
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