Esso Australia Pty Ltd v Australian Workers Union (No 2)

Esso Australia Pty Ltd and its joint-venture partner have initiated proceedings against the Australian Workers Union seeking compensation and penalties for contraventions of sections 343, 346, and 348 of the Fair Work Act 2009 (Cth), which arose from unprotected industrial action organised by the respondent from 4 to 17 March 2015. The respondents have applied to be excused from complying with an order made by the Court on 3 August 2018, which required the parties to provide discovery of documents in relation to certain categories of documents. The application proceeded on the basis that the categories of documents were reformulated in response to submissions made by the respondents. The primary issue for the Court was whether the respondents should be excused from complying with the order for discovery of documents in relation to the reformulated categories of documents. The Court considered whether the discovery of documents was necessary to facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible, and whether it was likely that the documents in the possession of the respondents would be relevant to the proof of the applicants' claims. The Court held that the discovery of documents was necessary and that the respondents should be excused from complying with the order in relation to categories 1, 3, 4, and 5. The Court found that the documents in the possession of the respondents might be admissible and assist in establishing a matrix of facts from which findings based upon that evidence might be made. The Court noted that the applicants’ claim for compensation was substantial, and that questions of proof would arise at the hearing. The Court concluded that the respondents should be excused from complying with the order in relation to categories 1, 3, 4, and 5, but not in relation to category 2. The Court ordered that the parties consult and submit an agreed minute of order to reflect these reasons, and any further directions that are sought by 4.00 pm 17 January 2019.