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

[2016] FCCA 1569

FEDERAL CIRCUIT COURT OF AUSTRALIA

DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION & ORS [2016] FCCA 1569

Catchwords:
PRACTICE AND PROCEDURE – Discovery – application for declaration that it is appropriate in the interests of the administration of justice that discovery be allowed – whether documents sought to be discovered are relevant to any issue in the proceedings – whether granting discovery will limit the issues – declaration for limited discovery granted.

Legislation:

Evidence Act 1995 (Cth), s.55

Fair Work Act 2009 (Cth), ss.343, 570

Federal Circuit Court of Australia Act 1999 (Cth), ss.45, 45(1)

Federal Circuit Court Rules 2001 (Cth), pt.14
Federal Circuit Court Rules 2001 (Cth), rr.14.02(2), 14.03, 14.06
Federal Court Rules 2011 (Cth), r.20.14(2)
Uniform Civil Procedure Rules 2005 (NSW), r.21.2(4)

Cases cited:

Abrahams v Qantas Airways Ltd (No.2) [2007] FMCA 639

Compagnie Financière et Commerciale du Pacifique v Peruvian Guano (1882)

11 QBD 55

Applicant: DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE

First Respondent: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Second Respondent: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH)

Third Respondent: BRIAN PARKER

Fourth Respondent: RITA MALLIA

Fifth Respondent: MICHAEL GREENFIELD

Sixth Respondent: DARREN GREENFIELD

Seventh Respondent: LUKE COLLIER

Eighth Respondent: TONY SLOANE

Ninth Respondent: ROBERT KERA

Tenth Respondent: SALVATORE MANNA

Eleventh Respondent: BEN GARVEY

Twelfth Respondent: MICHAEL O'CONNOR

Thirteenth Respondent: FRANCIS O'GRADY

Fourteenth Respondent: MARTIN WYER

File Number: SYG 332 of 2016

Judgment of: Judge Manousaridis

Hearing date: 21 June 2016

Delivered at: Sydney

Delivered on: 28 June 2016

REPRESENTATION

Counsel for the Applicant: Mr M S White SC

Solicitors for the Applicant: Corrs Chambers Westgarth

Solicitors for the third to tenth and fourteenth Respondents: Mr T McCauley of Taylor & Scott Lawyers (mentioning the appearance of the first and second respondents)

No appearance behalf of or by the eleventh respondent

Counsel for the twelfth and thirteenth Respondents: Mr S Crawshaw SC

Solicitors for the twelfth and thirteenth Respondents: Slater Gordon

DECLARATION

1. It is appropriate in the interests of the administration of justice to allow discovery by the Director of the Fair Work Building Industry Inspectorate (Director) of all documents that are or ever have been in the power, custody or control of the Director and of the Fair Work Building Industry Inspectorate (Inspectorate) relating to:

   (a)the preparation and issuing of the Inspectorate’s media release relating to these proceedings dated 21 February 2016 referred to in paragraphs 4, 5, and 6 of the points of claim contained in annexure A to the application in the case filed by Mr Michael O’Connor on 1 June 2016; and

   (b)the public comments made by the Minister for Employment about the proceeding, as alleged in paragraph 8 of the points of claim referred to in (a). 

ORDERS

1. Pursuant to r.14.02(2) of the Federal Circuit Court Rules 2001 (Cth) the Director file on a date to be determined an affidavit of documents in relation to the documents referred to in the declaration.

2. The application made by Mr Michael O’Connor for a declaration pursuant to s.45 of the Federal Circuit Court of Australia Act 1999 (Cth) is otherwise dismissed.

3. Costs are reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 332 of 2016

DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE

Applicant

And

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

First Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH)

Second Respondent

BRIAN PARKER

Third Respondent

RITA MALLIA

Fourth Respondent

MICHAEL GREENFIELD

Fifth Respondent

DARREN GREENFIELD

Sixth Respondent

LUKE COLLIER

Seventh Respondent

TONY SLOANE

Eighth Respondent

ROBERT KERA

Ninth Respondent

SALVATORE MANNA

Tenth Respondent

BEN GARVEY

Eleventh Respondent

MICHAEL O'CONNOR

Twelfth Respondent

FRANCIS O'GRADY

Thirteenth Respondent

MARTIN WYER

Fourteenth Respondent

REASONS FOR JUDGMENT

Introduction

1. Mr Michael O’Connor, who was the twelfth respondent in this proceeding, applies for a declaration under s.45(1) of the Federal Circuit Court of Australia Act 1999 (Cth) (FCC Act) that it is appropriate, in the interests of the administration of justice, to allow discovery. That application is made in aid of Mr O’Connor’s application that the Director of the Fair Work Building Industry Inspectorate (Director), the applicant in the proceedings and respondent to the application in a case, pay his costs, and that those costs be assessed on an indemnity basis or, in the alternative, on a party and party basis.

Circumstances out of which application in a case arises

1. Mr O’Connor was the twelfth respondent in a proceeding the Director commenced in this Court seeking orders under the Fair Work Act 2009 (Cth) (FW Act). In his statement of claim, the Director alleged that Mr O’Connor, together with a number of other officials of the first respondent, contravened s.343 of the FW Act. That section prohibits a person from organising or taking, or from threatening to organise or take, any action against another person with intent to coerce the other person or a third person to exercise or not exercise or propose to exercise or not exercise, a workplace right, or exercise or propose to exercise, a workplace right in a particular way. The case against Mr O’Connor was based on allegations that, on 16 February 2015, he was present at a particular building site.

2. On 20 May 2016 the Director discontinued the proceeding against Mr O’Connor. He did so after Mr O’Connor’s solicitors provided to the Director evidence, which the Director must have accepted, that showed Mr O’Connor was not present at the building site on the day the statement of claim alleged Mr O’Connor was present at the building site.

3. On 1 June 2016 Mr O’Connor filed an application in a case for an order that the Director pay Mr O’Connor’s costs, and that those costs be assessed on an indemnity basis or, in the alternative, on a party and party basis. The grounds on which Mr O’Connor claims these orders are stated in a “Points of Claim” that form part of the application in a case Mr O’Connor filed with the Court.

4. The points of claim allege the Director and the Fair Work Building Industry Inspectorate (Inspectorate) were publicly vocal advocates for the Federal Government’s policy of reintroducing the Australian Building and Construction Commission (ABCC), the legislation for the reintroduction of which was narrowly rejected by the Senate in August 2015; the Director commenced the proceedings against Mr O’Connor and others on 15 February 2016, almost one year after the day of the alleged events on which it is based, and one week before the Senate was due to resume sitting; on 21 February 2016, being the day before the Senate was due to resume sitting, the Inspectorate issued a media release attributing statements to the Director about Mr O’Connor’s involvement in the events alleged in the statement of claim; and that on 22 February 2016 the Minister for Employment (Minister) repeatedly made statements about Mr O’Connor’s being a respondent in the proceeding.

5. The points of claim also refer to the Director’s solicitors having provided to Mr O’Connor’s solicitors an affidavit (Affidavit) on which the Director’s solicitors stated the Director relied for alleging Mr O’Connor was present at the building site on the relevant day. The points of claim allege that, “to any fair-minded reader or investigator”,[1] the Affidavit “is, on its face, not a proper or sound basis to have instituted this proceeding against” Mr O’Connor,[2] and that the Affidavit revealed multiple other potential sources of evidence about whether Mr O’Connor was present at the building site.

   [1] Twelfth respondent’s application in a case, 1.06.2016; annexure A, points of claim, [12]

   [2] Twelfth respondent’s application in a case, 1.06.2016; annexure A, points of claim, [12]

6. The points of claim then allege as follows:[3]

   [3] Twelfth respondent’s application in a case, 1.06.2016; annexure A, points of claim, [23]-[25]

   23.    The foregoing is strongly suggestive of coordination and planning between the Director and the Inspectorate on the one hand and Minister Cash and/or her office and/or the Federal government on the other to:

   (a)     include O’Connor as a respondent to the proceeding when there is was no basis to do so;

   (b)     initiate the proceeding as closely as possible to the day the Senate resumed sitting; and

   (c) use the fact that O’Connor was a respondent to advance the campaign by the Minister and the government to persuade the Senate to pass the ABCC legislation.

   24.    On the basis of the foregoing, O’Connor claims that the proceedings brought against him by the Director:

   ·    Were commenced for improper and/or for political purposes and were an abuse of the process of the court; and/or

   ·    Were commenced in wilful disregard of the known facts; and/or

   ·    Made allegations of unlawful conduct knowing or indifferent to whether they might be false; and/or

   ·    Made allegations which ought never to have been made.

   25. On the basis of the foregoing, O’Connor claims that s 570 of the Fair Work Act 2009 (Cth) does not prevent an order for costs being made because:

   (a)     The Director instituted the proceeding against him vexatiously or without reasonable cause; and/or

   (b)     the Director’s unreasonable acts or omissions caused O’Connor to incur costs.

The discovery Mr O’Connor seeks if declaration made

1. The discovery Mr O’Connor claims it is appropriate in the interests of the administration of justice to allow is disclosure of the documents specified in annexure B to the application in a case. These are all documents relating to:

   a)the timing of the initiation of the proceeding;

   b)the timing of service of the court documents on the respondents;

   c)the decision to include Mr O’Connor as a respondent;

   d)the preparation and issuing of the Inspectorate’s media release relating to the proceeding dated 21 February 2016;

   e)the Minister’s public comments about the proceeding;

   f)Mr O’Connor’s presence at the relevant building site on 16 February 2015; and

   g)events at or near the entrance at the building site on the morning of 16 February 2015.

2. Annexure B then describes with greater particularity the documents that fall within these categories. These are:

   a)documents from which the chronological progress of the investigation can be seen, such as the investigation log;

   b)documents recording or constituting communications with the Minister, any member of the Minister’s staff or any other Federal government representative about the proceeding;

   c)documents created or recorded by two identified Inspectorate staff members on 16 February 2016 or within the following seven days;

   d)documents obtained from NSW Police, including but not limited to documents created by two named police officers referred to in the Affidavit;

   e)documents created or recorded through the use of the CCTV camera referred to in the affidavit;

   f)documents obtained from De Martin and Gasparini Pty Limited (DMG), its officers, servants or agents;

   g)documents obtained from DMG’s lawyers; and

   h)“documents obtained through the same process by which” the Affidavit “was obtained”.

Principles

1. Section 45 of the FCC Act provides:

   (1)  Interrogatories and discovery are not allowed in relation to proceedings in the Federal Circuit Court of Australia unless the Federal Circuit Court of Australia or a Judge declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.

   (2)  In deciding whether to make a declaration under subsection (1), the Federal Circuit Court of Australia or a Judge must have regard to:

   (a)  whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and

   (b)  such other matters (if any) as the Federal Circuit Court of Australia or the Judge considers relevant.

2. The discovery the Court may declare is appropriate in the interests of the administration of justice is that which is provided for by Part 14 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules). Subrule 14.02(2) of the FCC Rules provides that, if a declaration is made under s.45 of the FCC Act, the Court may make an “order for disclosure” either “generally”, or “in relation to particular classes of documents”, or “in relation to particular issues”, or “by a specified date”. Rule 14.03 of the FCC Rules provides that a “party who is ordered to disclose documents must file an affidavit of documents”. The expression “affidavit of documents”, although having a reasonably well understood legal meaning, is not defined in the FCC Act or in the FCC Rules, and there is no form of “affidavit of documents” prescribed by or pursuant to the FCC Rules.

3. Also relevant is r.14.06 of the FCC Rules. That rule applies where, at any stage of a proceeding, it appears to the Court from evidence, or from the nature or circumstances of the case, or from any document filed that some document or class of document relating to a matter in question in the proceeding may be or may have been in the possession, custody or control of a party. In those circumstances, the Court may, among other things, order a party to file an affidavit stating whether the document, or documents of that class, is or has been in the possession, custody, or control of the party.

4. Section 45 of the FCC Act and r.14.02 of the FCC Rules are silent about the scope of discovery the Court may order; that is, neither s.45 nor the FCC Rules say anything about the required degree of relevance between documents the Court may order to be discovered and the issues in the proceeding. That is to be contrasted with the rules of other courts. For example, the Federal Court Rules 2011 (Cth) (FCR) distinguish between, on the one hand, “standard discovery” which, when ordered, requires discovery of documents “that are directly relevant to the issues raised by the pleadings or in the affidavits” as that expression is defined in r.20.14(2); and, on the other hand, “non-standard and more extensive discovery”, as defined in r.20.15 of the FCR. Another example is r.21.2(4) of the Uniform Civil Procedure Rules 2005 (NSW) which provides that “an order for discovery may not be made in respect of a document unless the document is relevant to a fact in issue”.

5. The traditional expression that was used to define the scope of discovery is “relating to any matter in question”. That expression was given its authoritative interpretation in 1882 by Brett LJ in Compagnie Financière et Commerciale du Pacifique v Peruvian Guano:[4]

   It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may - not which must - either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words “either directly or indirectly,” because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences.

   [4] (1882) 11 QBD 55 at 63

6. In my opinion, that is the intended scope of “discovery” to which s.45 of the FCC Act and r.14.02 of the FCC Rules refer; the traditional meaning of “discovery” is the disclosure of documents that relate to a matter in question. This is supported by r.14.06 of the FCC Rules that refers to a document or class of documents “relating to a matter in question”. It is also supported by Abrahams v Qantas Airways Ltd (No.2) where Lucev FM (as his Honour then was) said that “discovery is confined to the issues on the pleadings, and a party is entitled to discovery of documents related to the issues, meaning that a document is relevant where it may (not must) advance a party’s own case or damage the opponents case, or lead to a course of inquiry which might do so”. [5]

   [5] Abrahams v Qantas Airways Ltd (No.2) [2007] FMCA 639 at [22]

7. The judgment of Lucev FM in Abrahams identifies the principles the Court should apply when considering applications for a declaration under s.45 of the FCC Act.[6] His Honour held that whether or not it is in the interests of the administration of justice to allow discovery depends on the Court considering a number of factors. The factors his Honour identified are “the relevance of any document sought to be discovered”,[7] “the volume of documents sought to be discovered”,[8] “whether discovery would narrow the issues”,[9] whether the parties consent to discovery,[10] whether discovery is “of benefit” in the litigation,[11] and “the effect of discovery on the litigants, especially vulnerable litigants”.[12]

   [6] Abrahams v Qantas Airways Ltd (No.2) [2007] FMCA 639 at [22] referring to Compagnie Financiere du Pacifique v The Peruvian Guano Co(1882) 11 QBD 55 at [63]

   [7] Abrahams v Qantas Airways Ltd (No.2) [2007] FMCA 639 at [25(a)]

   [8] Abrahams v Qantas Airways Ltd (No.2) [2007] FMCA 639 at [25(b)]

   [9] Abrahams v Qantas Airways Ltd (No.2) [2007] FMCA 639 at [25(d)]

   [10] Abrahams v Qantas Airways Ltd (No.2) [2007] FMCA 639 at [25(f)]

   [11] Abrahams v Qantas Airways Ltd (No.2) [2007] FMCA 639 at [25(g)]

   [12] Abrahams v Qantas Airways Ltd (No.2) [2007] FMCA 639 at [25(h)]

8. The parties on the application before me accepted that these were the principles that I should apply when determining Mr O’Connor’s application for a declaration under s.45(1) of the FCC Act.

Factors

1. I begin with relevance. As is apparent from what I have already said, the concept of “relevance” Lucev FM had in mind in Abraham is not “relevance” within the meaning of s.55 of the Evidence Act 1995 (Cth); his Honour equated relevance with “matter in question” as defined by Brett LJ in Compagnie Financiere du Pacifique.[13]

   [13] Abrahams v Qantas Airways Ltd (No.2) [2007] FMCA 639 at [22]

2. The documents Mr O’Connor seeks be to be discovered, however, go beyond even this broad conception of relevance. That is the case for the documents referred to in paragraphs (i), (ii), and (vii) of annexure B to the points of claim, and the categories of documents identified in paragraphs 1 – 8 of annexure B. These categories call for documents that would include documents that do not refer to Mr O’Connor and, therefore, could not otherwise conceivably be relevant to the grounds on which Mr O’Connor seeks an order for costs. For that reason alone, it would not be appropriate in the interests of the administration of justice that discovery be allowed in relation to documents that fall within these categories.

3. The documents that fall within category (vi), namely, documents relating to Mr O’Connor’s presence on the building site on 16 February 2015, also do not appear to be relevant, even though they relate only to Mr O’Connor. Mr O’Connor has always contended he was not present at the building site on the relevant date, and the Director has accepted Mr O’Connor was not present on the building site on that day. There is, therefore, no issue about whether Mr O’Connor was at the building site on 16 February 2015. For that reason, it would not be appropriate in the interests of the administration of justice that discovery be allowed for documents that fall within category (vi).

1. The documents that fall within category (iii) are directly and indirectly relevant. They are directly relevant to the extent they capture communications between the Director and the Inspectorate, on the one hand, and the Minister on the other, about the decision to include Mr O’Connor as a respondent (Relevant Communications). Such documents, if they exist, would be directly relevant to Mr O’Connor’s allegation that the matters alleged in the points of claim suggest coordination and planning between the Director and the Inspectorate, on the one hand, and the Minister on the other, to include Mr O’Connor as a respondent.

2. To the extent the documents described in category (iii) include documents other than Relevant Communications, such documents are likely to be indirectly relevant. That is, they are likely to include documents which it is reasonable to suppose would fairly lead Mr O’Connor to a train of inquiry that may advance his claim that the matters alleged in the points of claim suggest coordination and planning between the Director and the Inspectorate, on the one hand, and the Minister, on the other, to include Mr O’Connor as a respondent. The difficulty, however, is that most, if not all, of the documents that may fall in category (iii), excluding Relevant Communications, are documents for which a claim of legal professional privilege may lie. I consider the significance of this below.

3. Documents that fall within categories (iv) and (v) are indirectly relevant. That is, they are documents which, if they exist, it is reasonable to suppose would fairly lead Mr O’Connor to a train of inquiry that may advance his allegation that the matters alleged in the points of claim suggest coordination and planning between the Director and the Inspectorate, on the one hand, and the Minister, on the other, to include Mr O’Connor as a respondent.

4. There is nothing to suggest that documents falling within categories (iv) and (v) are voluminous. It is reasonable to infer there will be few, if any, documents that would fall within these categories. It may be otherwise in relation to documents falling within category (iii), although the Director made no submissions about that.

5. An order requiring discovery of documents falling within categories (iii) and (iv) is likely to narrow the issues between the parties. If documents that fall within these categories exist, they are likely either to support the existence of the alleged coordination and planning between the Director and Inspectorate on the one hand, and the Minister on the other, or not support such alleged coordination. If no documents within these categories exist, that may also serve to narrow the issues. The issue will be narrowed to whether an inference of coordination should be drawn from the circumstances alleged in the points of claim.

6. The documents falling in category (iii) call for different consideration. As I have already noted, the category is capable of capturing Relevant Communications. Most of the documents category (iii) is likely to capture, however, will be documents that have been prepared for the dominant purpose of the proceeding and, thus, documents that may attract claims for privilege. That an order for discovery may give rise to claims for privilege is not by itself a reason for not making a declaration under s.45 of the FCC Act. It is relevant, however, where, as in the case before me, most of the documents that fall within a particular category of documents are on their face likely to be privileged. Given that Mr O’Connor is seeking documents that on their face appear to be privileged, it is likely there will be a dispute about privilege. That is likely to increase the issues between the parties and, hence, complexity and costs. This factor by itself might not be important if the documents were directly relevant to an issue. As I have already noted, however, documents that fall within category (iii), excluding Relevant Communications, will at best be indirectly relevant. For these reasons, I am not satisfied it is appropriate in the interests of the administration of justice that discovery be allowed of documents that fall within category (iii).

7. As for the remaining factors identified in Abrahams, given the assumptions to which I refer below, I consider that requiring discovery of documents that fall within categories (iv) and (v) of Annexure B will be of benefit in the litigation because, for the reasons I have given above, discovery of documents falling within those categories are likely to narrow the issues, and requiring discovery of documents that fall within those categories are unlikely to require the production of a large volume of documents and, for that reason, an order for discovery of those document will not have any great effect on the Director.

Other matters

1. Counsel for the Director submitted that even if the allegations made in the points of claim are true, they could not reasonably support the conclusion that Mr O’Connor would be entitled to an order for costs, let alone an order for costs on an indemnity basis. Counsel submitted that, on the basis of the evidence on which Mr O’Connor himself relies in his application for a declaration under s.45(1) of the FCC Act, the Director’s decision to include Mr O’Connor as a respondent was based on reasonable grounds and materials.

2. This submission, if accepted, goes to the merits of Mr O’Connor’s application for costs. I explored with counsel whether an appropriate course would be for me to consider whether, on the assumption that the allegations made in the points of claim were true, Mr O’Connor has any reasonable prospects of obtaining an order for costs under s.570 of the FW Act and, if so, whether those costs should be assessed on an indemnity basis or party and party basis. Neither counsel submitted that it would be appropriate for me to proceed on that basis. Accordingly, for the purposes of the application with which these reasons deal, I have assumed that the allegations made in the points of claim raise an arguable case for an order that the Director pay Mr O’Connor’s costs, including on an indemnity basis.

Conclusion

1. On the assumption that the points of claim disclose a reasonably arguable case for costs, I am of the opinion that it is appropriate in the interests of the administration of justice that I permit Mr O’Connor to have discovery only of documents that fall within the categories of documents described in paragraphs (iv) and (v) of annexure B to the points of claim. The documents relate to the issues raised by the points of claim, the discovery of the documents are likely to narrow the issues on Mr O’Connor’s application for costs, and the ordering of discovery will have little impact on the Director.

2. I propose, therefore to make a declaration that it is appropriate in the interests of the administration of justice that discovery be allowed against the Director in relation to the categories of documents described in paragraphs (iv) and (v) of annexure B to the points of claim, and that, by a date to be determined, the Director file and serve an affidavit of documents in relation to documents in his and the Inspectorate’s power, custody or control that fall within these categories of documents.

3. I will reserve the question of costs.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 28 June 2016