Duma v Mader International Pty Ltd - [2007] FMCA 1494

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DUMA v MADER INTERNATIONAL PTY LTD

[2007] FMCA 1494

INDUSTRIAL LAW – Application for discovery – alleged underpayments of wages – s.187 Evidence Act1995 (Cth) – discovery ordered.

Evidence Act 1995 (Cth), s.187, subss.187(1)(a), 187(1)(b), 187(1)(c)

CFMEU v Able Demolitions & Excavations Pty Ltd [2001] FCA 1748
Smith v Granada Tavern & Ors and Dennington v Prescott & Anor [2007] FMCA 263
Birrell v Australian National Airlines Commission (1984) 55 ALR 211
Australian Competition & Consumer Commission v J McPhee & Son (Australia) Pty Limited (No2) (1997) 77 FCR 217
Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat & Livestock Corporation (1979) 42 FLR 204
Microsoft Corp v CX Computer Pty Ltd (2002) 116 FCR 372
Australian Competition & Consumer Commission v FFE Building Services Ltd [2003] FCAFC 132

Applicant:

MICHAEL DUMA

Respondent:

MADER INTERNATIONAL PTY LTD

File number:

MLG 508 of 2007

Judgment of:

Burchardt FM

Hearing date:

20 August 2007

Date of last submission:

20 August 2007

Delivered at:

Melbourne

Delivered on:

10 September 2007

REPRESENTATION

Counsel for the Applicant:

Mr M.A. Belmar

Solicitors for the Applicant:

Patrick Cash & Associates

Counsel for the Respondent:

Mr J.D. Forbes

Solicitors for the Respondent:

Victorian Automobile Chamber of Commerce

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 508 of 2007

MICHAEL DUMA

Applicant

And

MADER INTERNATIONAL PTY LTD

Respondent

REASONS FOR JUDGMENT

On 20 August 2007 during the course of an adjourned directions hearing in this matter, I heard argument relating to a pleadings challenge advanced by the Respondent against the Applicant’s Statement of Claim on the one hand, and an oral application for an order for discovery made by the Applicant and resisted by the Respondent on the other.
The Applicant's Statement of Claim alleges breaches of an award arising out of underpayments to the Applicant during his employment by the Respondent of the relevant amounts that should have been paid under the award.
The period of employment with which the application is concerned is May 2001 until July 2006.
The Applicant sought discovery of various documents relating to his employment with the Respondent, being such matters as pay slips, timesheets and the like. These documents were sought on the footing that the Applicant is not able better to particularise or quantify his claim in this proceeding until such documents are made available to him.
The Respondent resisted this application on two bases. The first was that there is no power in the Court to compel the Respondent to provide documents by way of discovery process. This proposition was based on the common law prohibition against requiring a party to make a case against itself where it is at risk of the imposition of a civil penalty as is the case in this proceeding.
In the alternative, counsel for the Respondent submitted that, in any event, the application for discovery was premature because the Applicant's Statement of Claim was deficient and had not been adequately particularised to a point at which it was appropriate to contemplate discovery.
The Applicant's counsel asserted from the bar table, and I am prepared to accept, given that there was no challenge to that assertion by counsel for the Respondent and it accords with commonsense in any event, that the Applicant has few if any of the sort of documents he needs more particularly to quantify and particularise his claim.
The Applicant has appended to his Statement of Claim a schedule purporting to show the moneys owed to him but it is apparent from looking at that schedule, and indeed it is a necessary inference of the application for discovery, that the Applicant has not fully or properly particularised his position.
Counsel for the Respondent referred me to the decision of Marshall J in CFMEU v Able Demolitions and Excavations Pty Ltd (2001) FCA 1748. In his reasons for judgment his Honour at [12] observed that:
“12. For a Statement of Claim to disclose a cause of action in award breach proceedings it must usually plead matters which would ordinarily include the following matters:
*   the existence of an award
*   the terms of it alleged to be breached
*   the persons (if any) in respect of whom a breach of the award has occurred.
*   the dates, times and places (if relevant) upon which the breach occurred”
His Honour went on at [13] to say:
“In circumstances where it is alleged that a respondent to an award has not made payments to employees which they are entitled to receive the material facts pleaded should ordinarily include:
*   the identification of the employees in question, and if necessary their classifications
*   the facts which gave rise to the entitlement to the relevant payment
*   the employer's failure to make the payment
*   the relevant dates, times and places”
A number of those matters are already in my view adequately disclosed by the Statement of Claim in its present form. The existence of the award and the terms which are said to have been breached are in my view sufficiently clear from the Statement of Claim. What is not sufficiently clear is, as counsel for the Respondent pointed out, the nature of the roster of ordinary hours which the Applicant asserts, and the dates, times and places upon which the breach is alleged to have occurred.
That process of identification cannot however in the circumstances proceed until and unless the Respondent provides to the Applicant the documents he seeks by way of discovery.
This brings me to consideration of the arguments made by the parties as to whether the Respondent is properly compellable to make discovery at this stage in the proceeding or at all.
Counsel for the Applicant naturally enough took me to s.187 of the Evidence Act 1995 (Cth) (“the Act”) which in essence abolishes the common law privilege against self incrimination or self-exposure to a civil penalty for bodies corporate.
Counsel for the Respondent submitted that the proper construction of s.187 did not make the section applicable to the circumstances here. He submitted that the various cases that have considered s.187 of recent times including Smith v Granada Tavern & Ors and Dennington v Prescott & Anor [2007] FMCA 263, a decision given by me on

9 March 2007, were concerned with subpoenas and not with discovery.

He submitted that the decision of Gray J in Birrell v Australian National Airlines Commission (1984) 55 ALR 211 (“Birrell”) was still good law.
Counsel took me to the headnote in that decision which is in these terms:
“(1) The usual rule that in civil proceedings for the recovery of a penalty a court will not normally order a respondent to discover documents, applies to proceedings in which the claim for a penalty is only one of a number of claims.”
I readily accept that that was the position at common law prior to the introduction of the Act, which plainly took place a considerable time after Gray J's decision in Birrell. Nonetheless, the matter is more complicated than that. The authorities show that the courts have approached issues such as discovery, production of documents pursuant to a notice to produce and subpoenas as being in many ways part and parcel of the same thing in the context of the privilege against self-incrimination or self-exposure to the risk of a civil penalty.
In Australian Competition & Consumer Commission v J McPhee & Son (Australia) Pty Limited (No2) (1997) 77 FCR 217 (“McPhee”) Heerey J quoted at page 218, the judgment of Deane J in Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat & Livestock Corporation (1979) 42 FLR 204 (“Refrigerated Express Lines”) in which Deane J observed at [207]-[208]:
“It is a well established principle that a defendant in proceedings which are solely for the recovery of a pecuniary penalty should not be ordered to disclose information or produce documents which may assist in establishing his liability to the penalty...
In the former case, that is to say in a mirror action for a penalty, a court should, in the absence of statutory provision to the contrary, refuse to make any order at all against the defendant for discovery or production of documents or provision of information for the reason that the whole and avowed object of the proceedings being the imposition and the recovery of a penalty, an order for the production of documents or provision of information against the defendant can, so far as the prosecutor of the action is concerned, properly have no other intended consequence.”
In McPhee, Heerey J was concerned with the provision of witness statements rather than discovery or other information gathering. Nonetheless his Honour went on to say at [220]:
“In my respectful opinion no distinction can be drawn on the basis that the present case is concerned with the privilege against exposure to a penalty rather than the privilege against incrimination. It would be contrary to the strong statements in Reid to make ... any order for the production of witness statements. Clearly, as noted, such statements would be analogous to answers to interrogatories or the production of documents on discovery.”
This approach, in which discovery is treated as but one of a number of similar matters which may give rise to the privilege against self‑incrimination, is also disclosed in Microsoft v CX Computer Pty Ltd (2002) 116 FCR 372 per Lindgren J at [31]-[32] and in ACCC v FFE Building Services Ltd [2003] FCAFC 132 per Emmett, Healey and Jacobson JJ at [12].
It is true that there is authority, including Deane J in Refrigerated Express Lines at [211] to the effect that it is generally appropriate to make an order for discovery in these sort of proceedings because it is still open to the Respondent to claim privilege when the actual list is provided.
To approach this case in that way would be however to adopt a false methodology. It is quite apparent that the Respondent is in effect claiming privilege for all the classes of documents sought and I would certainly be prepared to infer in the Respondent's favour that the documents sought may have the capacity to expose the Respondent to the imposition of a civil penalty.
Nonetheless, it is clear that the Respondent should make discovery in the terms sought.
It should happen now and not after re-pleading.
This is a proceeding in which it is arguable that any of the subsections in s.187 of the Act apply.
Discovery could be seen to be giving information (s.187(1)(b)), producing a document (subs.187(1)(a)) albeit that this would more properly really occur at the time of inspection, or as I suspect the better analysis, to do any other act whatsoever, s.187(1)(c)) i.e. to make discovery and to provide inspection of documents.
In my view, the terms of s.187 are perfectly clear and the distinction sought to be drawn by counsel for the Respondent between discovery on the one hand and the production of documents pursuant to subpoenas and the like on the other is not a proper one. It fails to take into account the breadth and scope of the operation of s.187.
It should be noted that in any event were it necessary to do so, the Applicant could properly issue subpoenas for the production of these categories of documents. The authorities show that to do so would not in the circumstances be an abuse of process.
For these reasons I am minded to make an order for discovery in the terms sought, and to further direct that the Applicant file and serve a further schedule setting out the matters to which I have referred in paragraph 11.
I have not heard any submissions about how much time should be allowed for this to occur. I direct the parties to forward to my chambers minutes of orders giving effect to these reasons within seven days. If they are unable to do so by consent I will list the matter for mention.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate: Brooke Evans

Date: 10 September 2007