Faulkner v Tidewater Marine Australia Pty Ltd (No.3)
[2016] FCCA 2918
•14 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAULKNER v TIDEWATER MARINE AUSTRALIA PTY LTD (No.3) | [2016] FCCA 2918 |
| Catchwords: WORDS AND PHRASES – “refers” – “in conjunction with”. |
| Legislation: Fair Work Act 2009 (Cth), s.570(2) Federal Circuit Court of Australia Act 1999 (Cth), s.45 Federal Circuit Court Rules 2001 (Cth), Part14, rr. 14.02, 14.10, 15.28, 21.02 |
| Cases cited: Abrahams v Qantas Airways Ltd (No. 2) [2007] FMCA 639; (2007) 210 FLR 314 Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd (ACN 002 792 163) & Ors v Woolworths Ltd (ACN 000 014 675) [2015] FCA 1520 Faulkner v Tidewater Marine Australia Pty Ltd [2014] FCCA 1487 Faulkner v Tidewater Marine Australia Pty Ltd (No.2) [2015] FCCA 2218 Genovese v BGC Construction Pty Ltd [2006] FMCA 1507 Flick, Federal Court Practice (Westlaw online at Shorter Oxford English Dictionary on Historical Principles (Oxford: Clarendon Press, 1973) |
| Applicant: | FRANK FAULKNER |
| Respondent: | TIDEWATER MARINE AUSTRALIA PTY LTD |
| File Number: | PEG 194 of 2013 |
| Judgment of: | Judge Lucev |
| Hearing date: | 28 October and 1 November 2016 |
| Date of Last Submission: | 1 November 2016 |
| Delivered at: | Perth |
| Delivered on: | 14 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Hooker |
| Solicitors for the Applicant: | Friedman Lurie Singh & D’Angelo |
| Counsel for the Respondent: | Ms M Eberlein (on 28 October and 1 November 2016) and Ms A R Aria-Retnam (on 28 October 2016) |
| Solicitors for the Respondent: | Jarman McKenna |
ORDERS
That pursuant to r.14.10 of the Federal Circuit Court Rules 2001 (Cth), by 4.00pm on 16 November 2016, the respondent is, save to the extent that either production for inspection or copies have already been provided, to provide copies of the documents referred to in the following paragraphs of the application in a case filed by the applicant on 11 October 2016 to the applicant:
(a)1.1(h), being the contract between Tidewater Marine Australia Pty Ltd (“Tidewater”) and Hurtigruten;
(b)1.1(l), being the contract between Tidewater and Eni;
(c)1.1(o), being a copy of every letter sent to casual staff informing them of a downturn in work;
(d)1.1(q), being the two contracts which were awarded to Tidewater in November 2011;
(e)1.2(a), being the AMOU agreement;
(f)1.2(h), being copies of circular or generic letters dated 11 May 2011 sent to all casual employees;
(g)1.3(a), being Mr Faulkner’s personnel file;
(h)1.3(b), being copies of letters sent to several casual employees during Ms Green’s time at Tidewater;
(i)1.3(c), being the enterprise agreement;
(j)1.3(f), being the draft letter provided to Ms Vivian;
(k)1.3(g), being the contract won by Tidewater on or about February 2012;
(l)1.4(a), being the contract with Dulaca Tide;
(m)1.4(g), being the emails (referred to at paragraph 14 of Edward Rose-Cooper’s Affidavit sworn 16 June 2014), which constitute documents relating to the direct approach made by Mr Faulkner to Boskalis;
(n)1.4(j), being the contract containing contractual clauses;
(o)1.4(q), being the form letter sent to all casual staff with which Mr Cooper agreed before it was sent out;
(p)1.5(c), being the “email trails … filed in the HR Manager’s office” (referred to at paragraph 18 of Treena Jennifer Vivian’s Affidavit sworn 8 August 2014); and
(q)1.5(d), being the emails in the files relating to Mr Faulkner raising the issue of being made casual.
Otherwise, the application in a case filed on 11 October 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 194 of 2013
| FRANK FAULKNER |
Applicant
And
| TIDEWATER MARINE AUSTRALIA PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, Frank Faulkner (“Mr Faulkner”), filed an application in a case on 11 October 2016 in which he seeks a declaration that it is appropriate in the interests of the administration of justice that the respondent, Tidewater Marine Australia Pty Ltd (“Tidewater”), provide discovery.
The adjourned final hearing of the application is listed for three days commencing on 5 December 2016.
Documents sought in the application in a case
The documents Mr Faulkner seeks to be provided by way of discovery are many, and as set out in the application in a case are as follows:
1.1 In relation to documents expressly or by implication referred to or relied on in the affidavit of Colin Muir sworn 11 July 2014:
(a)Managers and Operations meeting notes and minutes for the period September 2010 to 18 September 2012 (paragraphs 3 and 12 of Affidavit).
(b)Documents relating to 3 Master arrangements made prior to September 2010 (paragraph 3 of Affidavit).
(c)Documents relating to dispute between Applicant and Hurtigruten occurring on or about 26 April 2011 (paragraph 5 of Affidavit).
(d)Communications from vessel sent directly to Boskalis (paragraph 5 of Affidavit).
(e) Documents containing direct communication between applicant and Boskalis (paragraph 8 of Affidavit).
(f)Documents relating to briefing by Operations Manager to Colin Muir (paragraph 8 of Affidavit).
(g)Minutes, notes or other documents relating to meetings between representatives of Boskalis Hurtigruten and Tidewater (paragraph 9 of Affidavit).
(h)The contract between Respondent and Hurtigruten (paragraph 10 of Affidavit).
(i)Documents relating to complaint from Hurtigruten (paragraph 10 of Affidavit)
(j)Documents relating to investigation (including outcome) by respondent (paragraph 10 of Affidavit).
(k)Documents relating to change of Master (paragraph 11 of Affidavit).
(l)The contract between respondent and ENI (paragraph 13 of Affidavit).
(m)Documents relating to loss of contract with ENI (paragraph 13 of Affidavit).
(n)Documents relating to identity of 3 vessels (paragraph 13 and 15 of Affidavit).
(o)A copy of every letter sent to casual staff informing them of downturn in work (paragraph 17, 18 and 19 of Affidavit).
(p)Documents, notes and minutes relating to meeting on 4 May 2011 (paragraph 22 of Affidavit).
(q)The 2 contracts which were awarded to Respondent in November 2011 (paragraph 27 of Affidavit).
(r)Documents, notes and minutes of meeting on 22 November 2011 (paragraph 28 of Affidavit).
1.2 In relation to documents expressly or by implication referred to or relied on in the affidavit of Renae Hesford sworn on 11 June 2014:
(a)The AMOU agreement (paragraph 11 of Affidavit).
(b)Documents relating to information provided by Edward Rose Cooper to Renae Hesford in relation to off-loading issue on “Dulaca Tide” (paragraph 23 of Affidavit).
(c)Documents relating to pressure received by Mr Cooper from the client (paragraph 24 of Affidavit).
(d)Notes relating to discussion with Mr Cooper (paragraph 25 of affidavit)
(e)Documents, notes and minutes relating to meeting between Renae Hesford, Mr Cooper and applicant (paragraph 26 of Affidavit).
(f)Documents relating to surplus staff as a result of respondent losing contract (paragraph 29 of Affidavit).
(g)Documents, notes and minutes relating to discussion with Bruce Nickol (paragraph 31 of Affidavit).
(h)Copies of circular/generic letters dated 11 May 2011 sent to all casual employees (paragraph 31 of Affidavit).
(i)Documents, notes and minutes of subsequent discussion with applicant (paragraph 38 of Affidavit).
(j)Casual employee books of respondent at the time Renae Hesford left respondent's employ (paragraph 41 of Affidavit).
(k)Documents containing or relating to client advice referred to in attachment “RH5” to affidavit (paragraph 39 of affidavit)
(l)Documents relating to the engagement of any vessels in Gorgon contract/project from the commencement of the contract/project to its termination (paragraphs 5 and 24 of affidavit)
1.3 In relation to documents expressly or by implication referred to or relied on in the affidavit of Rachel Green sworn on 13 June 2014:
(a)The applicant's personnel file (paragraphs 4 and 5 of affidavit).
(b)Copies of letters sent to several casual employees during Rachel Green's time at Tidewater (paragraph 7 of affidavit)
(c)Enterprise Agreement (paragraph 7 of affidavit).
(d)Documents, notes or minutes containing or relating to summary provided by Ms Vivian (paragraph 11 of affidavit).
(e)Documents, notes or minutes containing or relating to information provided by Ms Carter (paragraph 12 of affidavit).
(f)Draft letter provided to Ms Vivian (paragraph 14 of affidavit).
(g)Contract won by respondent on or about February 2012 (paragraph 16 of affidavit).
(h)Documents and notes relating to conversations between Rachel Green and applicant (paragraph 18 of affidavit).
(i)Documents and notes relating to attempts to contact Mr Pearson (paragraph 23 of affidavit).
(j)Documents and notes relating to continued attempts to contact applicant (paragraph 24 of affidavit).
(k)Documents relating to contact made prior to an appointment of another Master to the position on the Day Tide (paragraph 24 of affidavit).
1.4 In relation to documents expressly or by implication referred to or relied on in the affidavit of Edward Rose Cooper dated 16 June 2014:
(a)Contract with Dulaca Tide (paragraph 7 of affidavit).
(b)Documents containing information received from HR department (paragraph 8 of affidavit).
(c)Documents relating to dispute between applicant and Hurtigruten (paragraph 13 of affidavit).
(d)Documents and notes containing or relating to information received from Master (paragraph 13 of affidavit).
(e)Documents containing or relating to information received from Hurtigruten (paragraph 13).
(f)Documents, notes and minutes of meetings with Hurtigruten supervisors (paragraph 13 of affidavit).
(g)Documents relating to direct approach made by applicant to Boskalis (paragraph 14 of affidavit).
(h)Documents, notes and minutes relating to discussions between respondents management and Hurtigruten (paragraph 16 of affidavit).
(i)Documents containing request of client (paragraph 17 of affidavit).
(j)Contract containing contractual clauses (paragraph 17 of affidavit).
(k)Documents containing offer of employment on another vessel (paragraph 18 of affidavit).
(l)Documents relating to agreement with HR manager (paragraph 19 of affidavit).
(m)Documents relating to identities, work status (permanent/casual) and vessel postings of excess staff (paragraph 20 of affidavit).
(n)Documents relating to cancellation of contract by ANP (paragraph 21 of affidavit).
(o)Documents, notes and minutes relating to management meetings (paragraph 24 of affidavit).
(p)Documents containing understanding gained from HR department (paragraph 26 of affidavit)
(q)Documents relating to review of form letter and agreement to it being sent out (paragraph 26 of affidavit).
(r)Documents, notes and minutes relating to discussions with Colin Muir and Renae McMahon (paragraph 27 of affidavit).
(s)Documents containing or relating to process in EBA (paragraph 27 of affidavit).
1.5 In relation to documents expressly or by implication referred to or relied on in the affidavit of Veronica Jane Carter affirmed 21 July 2014
(a)Communications with crew and unions (paragraph 13 of affidavit).
(b)Documents relating to spot charters done by 3 other vessels (paragraph 15 of affidavit).
(c)Notes, documents relating to conversation with Dan Pearson (paragraph 18 of affidavit).
(d)Emails in files relating to applicant raising issue of being made casual (paragraph 27 of affidavit).
(e)Documents, notes and minutes relating to conversations with Eddie Rose-Cooper and Ms Vivian (paragraph 27 of affidavit).
(f)Documents, notes and minutes relating to conversation with Mr Pearson (paragraph 27 of affidavit).
(g)Documents relating to new work with Day Tide and Heereema and other short term things (paragraph 28 of affidavit).
(h)Documents relating to hirings which started again (paragraph 28 of affidavit).
(i)Documents and notes relating to telephone contact made with applicant (paragraph 29 of affidavit).
(j)Documents relating to suitable positions available with respondent (paragraph 29 of affidavit).
(k)Documents relating to instructions to crewing officers (paragraph 29 of affidavit).
(l)Documents relating to appointments missed by applicant (paragraph 29 of affidavit).
(m)Documents and notes relating to contact made with Mr. Pearson (paragraph 30 of affidavit).
(n)Documents and notes relating to conversations with applicant (paragraph 31 of affidavit).
(o)Documents relating to failure to attend AMSA medical appointment (paragraph 32 of affidavit).
(p)Documents relating to notification by crewing officer (paragraph 33 of affidavit).
(q)Documents and notes relating to telephone conversation with Mr. Pearson (paragraph 33 of affidavit).
1.6 The Respondent pay the applicant's costs of and incidental to this application.
The Court notes that this application was made 54 days or a little less than 8 weeks before a hearing listed to re-commence on 5 December 2016 which has been listed since 4 September 2015.
Background
The claim
Mr Faulkner filed a substantive application on 30 July 2013. Mr Faulkner alleges Tidewater contravened the general protections under the Fair Work Act 2009 (Cth) (“FW Act”) by injuring him in his employment and altering his position to his prejudice for a prohibited reason.
The Court summarised Mr Faulkner’s Statement of Claim in Faulkner v Tidewater Marine Australia Pty Ltd (No. 2) [2015] FCCA 2218 at [22]-[26] per Judge Lucev (“Faulkner (No. 2)”) as follows:
22. Relevantly, the Statement of Claim alleges that the applicant was given a termination letter on 11 May 2011 stating that the reason for termination was the necessity to reduce the respondent’s workforce: Statement of Claim at [5], and that by letter of 22 February 2012 the respondent “rescinded” the earlier termination of the applicant’s employment, and that this followed an apology from an officer of the respondent and advice to the applicant that he would be reinstated: Statement of Claim at [8]-[9].
23. The Statement of Claim pleads that there was no employment relationship between the applicant and respondent between 11 May 2011 and 22 February 2012, but that there has been an employment relationship since 22 February 2012: Statement of Claim at [10], but that despite the existence of an employment relationship, and despite written demand by the applicant’s solicitors, the applicant has not received any work from the respondent, nor any compensation for time off work, nor any acknowledgment of the alleged “continuing injustice” it is said that the respondent has “visited upon” the applicant: Statement of Claim at [11].
24. The applicant then pleads:
(a) the Respondent took adverse action against the Applicant within the meaning of s 342(1) of the Act, initially by dismissing him, and subsequently (ie since the time when the Respondent rescinded the termination and thereby re-employed the Applicant) injuring him in his employment and altering his position to his prejudice;
(b) that adverse action was for the reason or reasons which included that the Applicant had a workplace right, had exercised a workplace right, proposed to exercise a workplace right or was to prevent the exercise of workplace right, that workplace right being one or more of the matters set out in paragraph 1(c) above;
(c) the Respondent accordingly acted unlawfully by breaching s 340(1) of the Act;
(d) the breach of s 340(1) of the Act has caused the Applicant pecuniary loss, namely:
(i) as at 5 July 2013, the sum of $ 387,604 representing 7.6 periods of 5 week swings from 13 July 2011 to 12 July 2013 at $51,600.00 per swing, together with certain allowances (particulars of which will be provided);
(ii) a further sum representing the opportunity the Applicant lost to perform work remunerated at a higher rate reflecting the position of permanent, or full time, Master; and
(e) the breach has also caused the Applicant harm in the form of the distress, hurt, and anxiety he has suffered by reason of his unlawful and unfair treatment by the Respondent.
Statement of Claim at [12].
25. The relief sought by the applicant includes declarations …, and compensation for the harm suffered as thereby pleaded, plus a mandatory injunction compelling the respondent to provide the applicant with work and to remunerate him accordingly, and for a pecuniary penalty to be paid by the respondent: Statement of Claim at [15].
Litigation history
The substantive application was filed on 30 July 2013 together with the Statement of Claim. On 24 September 2013 a Defence was filed.
Pursuant to an order made on 3 September 2013 the matter was referred for mediation before a Registrar of the Court. The mediation occurred on 17 December 2013, and the matter was adjourned to a directions hearing. On 5 March 2014 orders were made for the filing of affidavits by the applicant and respondent, together with the filing of submissions, and the matter was set down for three days of hearing on 5, 8 and 9 May 2014.
On 18 April 2014 consent orders were filed amending the dates for the filing of affidavits and submissions, and re-listing the matter for three days commencing on 18 August 2014. The applicant’s affidavits were due to be filed on 22 May 2014, and the respondent’s affidavits on 5 June 2014. The applicant complied with this timeline by filing his affidavit on 22 May 2014.
On 5 June 2014, the day upon which the respondent’s affidavits were due to be filed, the respondent filed an application in a case seeking the issue of four further subpoenas (that is subpoenas additional to some earlier subpoenas which had been issued). On 8 July 2014 the Court made orders providing for subpoenas to issue to two employees, and on 11 July 2014 the Court handed down its Reasons for Judgment in relation to the issuance of the additional subpoenas: Faulkner v Tidewater Marine Australia Pty Ltd [2014] FCCA 1487 (“Faulkner (No. 1)”). It is pertinent to observe that in relation to Mr Faulkner’s employment status the Court said in Faulkner (No. 1), that “Mr Faulkner’s employment status is not however seriously in dispute if at all. There was no dispute that at relevant times he was a casual Master …”: Faulkner (No. 1) at [21] per Judge Lucev, citing the Statement of claim at [1(a)]; Defence at [1(a)] and Mr Faulkner’s Affidavit at [12]-[13]; see also at [23] per Judge Lucev.
On 15 July 2014 the respondent filed affidavits of Rachel Green, Colin Muir and Renae Hesford. On 21 July 2014 and 13 August 2014 affidavits by Edward Rose-Cooper were filed, and affidavits were filed by Treena Jennifer Vivian on 8 August 2014, and by Veronica Jane Carter and Wayne Morris on 12 August 2014.
At the outset of the hearing on 18 August 2014 issues arose with respect to discovery, and more particularly the jurisdiction of the Court to deal with the application. The jurisdictional argument was heard, and judgment reserved, and leave was granted to the respondent to file an amended Defence and the matter was adjourned to a date to be fixed.
On 28 August 2015 in Faulkner (No. 2) the Court:
a)dealt with the issue of discovery at [2]-[5] per Judge Lucev as follows:
2. The applicant raised an issue with respect to discovery, and foreshadowed that an application was to be made seeking a declaration under s.45 of the FCCA Act for discovery, either generally or with respect to specific documents, including documents referred to in affidavits for the respondent that have not been produced.
3. In respect of documents referred to in affidavits for the respondent that have not been produced, it is unnecessary to make a declaration with respect to discovery under s.45 of the FCCA Act, because of r.15.28(1) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) which provides that:
A document to be used in conjunction with an affidavit must be annexed to the affidavit.
4. A document referred to in an affidavit is arguably one “to be used in conjunction with an affidavit”, and if so, it is mandatory for it to be annexed to the affidavit, because of the use of the phrase “must be” in the longer phrase “must be annexed to the affidavit”. In this context, “must” ordinarily imports a mandatory requirement: see Pitrau v Barrick Mining Services Pty Ltd [2012] FMCA 186; (2012) 259 FLR 447; (2012) 219 IR 208 at [23]-[28] per Lucev FM (“Pitrau”) (and the High Court, Full Court of the Federal Court, South Australian Supreme Court and Federal Magistrates Court of Australia cases there referred to), save where, in respect of court rules, compliance may be dispensed with: Burrell v Reavill Farm Pty Ltd & Ors [2014] FCCA 1449; (2014) 286 FLR 310.
5. Whilst the matter was not argued to finality in these proceedings because of the jurisdictional issue referred to below, the provisions of r.15.28(1) of the FCC Rules might, in whole or part, assist with the resolution of the preliminary issue concerning discovery, without the need for, or with the need for less, further intervention by the Court.
b)dealt with and determined the jurisdictional issue, observing at [35] per Judge Lucev as follows:
35. … in relation to the preliminary issue of jurisdiction, the only jurisdictional prohibition which arises is on the Court dealing with a s.365 FW Act dismissal dispute which alleges a contravention of workplace rights by reason of adverse action constituted by dismissal. Otherwise, the issue of whether or not the applicant was dismissed (which is a factual issue) may, together with the nature of the applicant’s employment, be relevant to the relief otherwise sought by the applicant.
After the judgment in Faulkner (No. 2) the parties conferred as to appropriate orders, and on 4 September 2015 the Court granted liberty to the parties to engage in further mediation, and re-listed the matter for further hearing 5, 6 and 7 December 2016.
Further mediation occurred on 1 December 2015, and it is common ground that that mediation was not successful in resolving the matter.
The current application in a case was made on 11 October 2016, and the matter came before the Court for directions on 17 October 2016, at which time the Court made the following orders:
1.In relation to the applicant’s application in a case for discovery the parties are to confer forthwith, and on an ongoing basis, as to:
(a)the mandatory producing of a document, or provision of a copy of a document, by the respondent pursuant to r.14.10 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”);
(b)the annexing or exhibiting of documents to the respondent’s affidavits pursuant to r.15.28 of the FCC Rules; and
(c)an agreed bundle of documents to be used at the hearing of the application.
2.Otherwise, the applicant’s application in a case for discovery be adjourned to 2.15pm on 28 October 2016, and in the event that after conferral any issues remain in dispute and require hearing of the application in a case (in whole or part) the:
(a)applicant file and serve an outline of submissions by 4pm on 26 October 2016; and
(b)respondent file and serve an outline of submissions by 4pm on 27 October 2016.
3.Costs, if any, be reserved.
The interaction between the parties
Mr Faulkner’s solicitor, Mr Dara Singh (“Mr Singh”), set out the background insofar as interaction between the parties was concerned in his affidavit sworn 10 October 2016 as follows:
5. On 6 August 2014 I caused an email dated 5 August 2014 to be sent to the Respondent's solicitors requesting discovery of the documents forming the subject matter of this application. A copy of my email is attached and marked “DS1”.
6. On 8 August 2014 my firm received a fax response from the Respondent's solicitors wherein, inter alia, they stated that they were drafting a list of discoverable documents which they would forward to my firm together with all the documents in their possession and in their client's possession. A copy of the fax is attached and marked “DS2”.
7. Copies of further correspondence from my firm to the Respondent's solicitors dated 15 August 2014 and 19 August 2014 are attached and marked “DS3” and “DS4” respectively.
8. No discovery has been provided by the Respondent to date.
9. On 8 September 2016 I caused a further email to be sent to the Respondent's solicitors. A copy of the email is attached and marked “DS5”.
10. On 29 September 2016 I contacted the Respondent's solicitor, Ms Aria-Retnam by telephone to confer with her in relation to my firm's email of 8 September 2016.
11. Ms Aria Retnam informed me that the email of 8 September 2016 had been forwarded to the Respondent's Counsel for her to respond to it.
12. She further said to me that she expected the Respondent's Counsel to respond to the email of 8 September 2016 no later than 4 October 2016 and that if the Applicant was not prepared to wait for the response then he could make the application for discovery to the Court.
13. At the time of filing this application the Respondent's Counsel has not responded to my firm's email dated 8 September 2016 or provided any discovery.
In the 5 August 2014 letter from Mr Faulkner’s solicitors to the solicitors for Tidewater Mr Faulkner’s solicitors:
a)sought discovery of a list of documents, which other than in the most minor respects, is identical to that now sought in the application in a case;
b)sought production, inspection and copies of documents pursuant to what they described as the statutory scheme in s.45 of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) and r.14 (actually Part 14) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”); and
c)observed that:
We would hope that in light of this request and the undertaking of any necessary conferral it will not be necessary for us to have to make any application to the Court pursuant to the statutory scheme to which we have referred, but will not hesitate to do so if we take the view that such an application as necessary to ensure that all potentially probative documentary material is produced prior to trial.
This was a letter written just thirteen days before the hearing of this matter listed to commence on 18 August 2014 (and which had been adjourned from May 2014 to August 2014) was due to commence.
Tidewater’s solicitor’s response of 8 August 2014 included the following:
We are:
1.Drafting a list of discoverable documents which we will forward to you very shortly with all the documents within our possession and within our client’s possession.
2.Confirming with our client that it does not have any other documents which will not be on the list of discoverable documents.
3.Confirming with our client that the contracts between our client and its clients are confidential and commercially sensitive. We fail to see the relevance of those contracts to your client’s claim and accordingly, we anticipate our instructions will be that we are not disclosing the contracts or at least the contracts in their entirely. We are more than happy to disclose extracts of the contract, which we have done, which may be relevant to your client’s claim.
Mr Faulkner’s solicitor’s letter of 15 August 2014 to Tidewater’s solicitors noted that although Tidewater’s solicitors facsimile letter of 8 August 2014 had stated that they were drafting a list of discoverable documents to be forwarded “very shortly”, no such list or copies of documents as requested had been provided, and that it “may well be that Counsel may apply [at the hearing on 18 August 2014] for an order under s45 of the FCCA Act as foreshadowed to be a possibility in our Outline”.
In Mr Faulkner’s solicitor’s letter of 19 August 2014 (the day after the hearing was adjourned) Mr Faulkner’s solicitors observed that a list of discoverable documents had still not been provided, that an application for discovery pursuant to s.45 of the FCCA Act had been “foreshadowed” by Counsel on 18 August 2014 at the hearing before the Court, and sought discovery on the basis of the schedule of documents in the letter of 5 August 2014 plus two other categories of documents (in respect of which additional categories of discovery would ultimately be sought in the application in a case).
The above history was recited in a letter from Mr Faulkner’s solicitors to Tidewater’s solicitors on 8 September 2016, and following that recitation inspection and copies of the documents were again sought, this time by close of business on 22 September 2016, and it was foreshadowed that in the event that there was not “a positive response” there would be contact for the purposes of telephone conferral “prior to the filing of a formal application for discovery and production of the documents”.
Following the Court’s orders of 17 October 2016 it would appear that there was conferral between the parties, as a consequence of which some documents were provided to the solicitors for Mr Faulkner by Tidewater’s solicitors, namely:
a)certain computer entry notes dating from May 2011 concerning Mr Faulkner’s employment record, including entries concerning disciplinary matters, termination, reinstatement to casual employment, amongst other things;
b)three letters from Eni Timor Leste (“Eni”) dated 25 March 2011, 16 May 2011 and 13 December 2011 concerning the termination of various charter party arrangements between what appear to be various Eni subsidiaries and Tidewater;
c)a record of qualifying sea service for Mr Faulkner; and
d)a bundle of 11 letters dating from February 2011 to various individuals concerning notice of termination as a casual employee with Tidewater.
Submissions
It is unnecessary to set out the submissions of the parties. It suffices to observe that they were very detailed, and that the argument on the application in a case took a full day, spread over two half days on 28 October 2016 and 1 November 2016.
Consideration
Relevant legislative provisions
Section 45 of the FCCA Act provides as follows:
Interrogatories and discovery
(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.
Rule 14.02 of the FCC Rules provides:
Declaration to allow discovery
(1) A declaration may be made under subsection 45(1) of the Act to allow discovery on the application of a party or on the Court’s own motion.
(2) If a declaration is made, the Court or a Registrar may make an order for disclosure:
(a) generally; or
(b) in relation to particular classes of documents; or
(c) in relation to particular issues; or
(d) by a specified date.
Rule 14.10(1) of the FCC Rules provides that:
If a document or affidavit filed by a party refers to another document, another party may request the party in writing for a copy of the document or to produce it for inspection.
Rule.14.10(2) of the FCC Rules provides that:
(2) The party requested to provide a copy of, or produce, a document must, within 4 days of the request, in writing to the party making the request:
(a) provide a copy of the document or appoint a time within 7 days, and a place where, it may be inspected; or
(b) claim that the document is privileged from production and state the grounds; or
(c) state that the document is not in his or her possession, custody or power and state his or knowledge, information or belief about its whereabouts.
Rule 15.28(1) of the FCC Rules provides that:
A document to be used in conjunction with an affidavit must be annexed to the affidavit.
Rule 14.10
It is convenient to begin with a discussion of r.14.10(1) of the FCC Rules. Like the former Federal Court rule, O.15 r.10(1) of the Federal Court Rules 1976 (Cth) it refers to an affidavit which “refers” to another document.
For relevant purposes “refer” means:
To send or direct (a person) to a person, a book or its author for information
The Shorter Oxford English Dictionary on Historical Principles (Oxford: Clarendon Press, 1973) page 1776.
In Flick, Federal Court Practice (accessed online at at FCR 20.31.60 the learned author observes as follows:
There is little authority on the question as to when a pleading or affidavit “refers to” a document. In King v GIO Australia Holdings Ltd (2001) FCA 1487 Moore J cited Smith v Harris (1883) 48 LT 869. The pleadings there spoke of “invoices, letters, bill heads, and brands on casks”. A notice was served seeking the production of those documents. The application was resisted by the plaintiff on the basis that the rule operated only on documents which were identified in the pleadings or particularly described. Chitty J rejected this submission and concluded:
It is said, that that is only a general reference to documents, but, in my opinion, that is both a general reference and also a special reference to each and every bill head and each and every letter; because the plaintiff, instead of setting out each document separately, refers to them compendiously, but that is no reason why inspection should not be allowed.
In Betfair Ptv Ltd v Racing New South Wales (No 2) [20091 FCA 195 at [11] it was said that Federal Court Rules O 15 r 10 was intended to give the opposite party the same advantage, with respect to documents referred to in pleadings or an affidavit, as if the documents were set out in the pleading or affidavit. It was there not necessary to decide whether a notice to produce issued under Federal Court Rules O 15 r 10(1) could be set aside on the ground that the applicant already had the documents requested in its possession, custody or power and that production would thereby be futile or oppressive : at [16]. Perram J there observed that there is “a forensic benefit in being able to review a document relied upon by another party even that party may believe it is the same as a document that is already held by the first party”.
The Court agrees with the thrust of submissions made by Tidewater that the requirement in r.14.10(1) of the FCC Rules for a document to be referred to requires that document to be, at the very least, mentioned in the relevant affidavit. A document the existence of which it is necessary to imply from a consideration of the text of an affidavit is not a document referred to in the affidavit.
Because of the use of the word “must” in r.14.10(2) of the FCC Rules where, as here, the request has been made to provide a copy of or produce the document referred to in one of the categories of document referred to in an affidavit referred to in the application in a case, as set out above, then it is mandatory for a copy of that document to be provided to the party requesting it, or for it to be produced for inspection as requested. This is because the use of “must” ordinarily imports a mandatory requirement: Pitrau v Barrick Mining Services Pty Ltd [2012] FMCA 186; (2012) 259 FLR 447; (2012) 219 IR 208; (2012) 64 AILR 101-563 at [23]-28] per Lucev FM (“Pitrau”), and the High Court, Full Court of the Federal Court, South Australian Supreme Court and Federal Magistrates Court of Australia cases there referred to, save where, in respect of Court Rules, compliance may be dispensed with: Burrell v Reavill Farm Pty Ltd & Ors [2014] FCCA 1449; (2014) 286 FLR 310. In this case there is no basis for dispensing with compliance with the provisions of r.14.10 of the FCC Rules, and indeed, such dispensation is not sought.
Documents which are plainly referred to in the affidavits referred to in the categories of documents set out in the application in a case, applying the test set out above, are as follows:
a)1.1(h), being the contract between Tidewater and Hurtigruten;
b)1.1(l), being the contract between Tidewater and Eni;
c)1.1(o), being a copy of every letter sent to casual staff informing them of a downturn in work;
d)1.1(q), being the two contracts which were awarded to Tidewater in November 2011;
e)1.2(a), being the AMOU agreement;
f)1.2(h), being copies of circular or generic letters dated 11 May 2011 sent to all casual employees;
g)1.3(a), being Mr Faulkner’s personnel file;
h)1.3(b), being copies of letters sent to several casual employees during Ms Green’s time at Tidewater;
i)1.3(c), being the enterprise agreement;
j)1.3(f), being the draft letter provided to Ms Vivian;
k)1.3(g), being the contract won by Tidewater on or about February 2012;
l)1.4(a), being the contract with Dulaca Tide;
m)1.4(g), being the emails (referred to at [14] of Mr Cooper’s Affidavit), which constitute documents relating to the direct approach made by Mr Faulkner to Boskalis;
n)1.4(j), being the contract containing contractual clauses;
o)1.4(q), being the form letter sent to all casual staff with which Mr Cooper agreed before it was sent out;
p)1.5(c), being the “email trails … filed in the HR Manager’s office” referred to at [18] of Ms Vivian’s Affidavit; and
q)1.5(d), being the emails in the files relating to Mr Faulkner raising the issue of being made casual.
Apart from the documents referred to immediately above, the Court is of the view that there are no other documents referred to in the affidavits the subject of the application in a case. The suggestion that the existence of documents might be implied is not in accord with the definition of “refer” set out above: see [31] above. In any event, implying the existence of the documents sought largely requires the Court to engage in speculation about the processes by which information was, or might have been, recorded by Tidewater and its employees. In this respect there is simply insufficient evidence to enable the Court to imply the existence of such documents. In the circumstances, were the Court to do so, it would be doing no more than making an uninformed guess as to whether or not particular documents might or might not exist. The Court is not prepared to engage in that type of speculation.
In the circumstances, there will be an order that by 4.00pm on 16 November 2016 Tidewater provide to Mr Faulkner copies of the documents referred to at [35] above, save to the extent that production for inspection or copies of those documents has already been provided. The Court notes that whether or not any particular contract, or any particular clauses in any particular contract, referred to at [35] above, has any provisions which might be affected by confidentiality considerations was not argued. If that is an issue the Court would expect that conferral between the parties would resolve that issue.
Rule 15.28
In relation to the provisions of r.15.28(1) it is again the case that there is a mandatory requirement, because of the use of the word “must”: see [34] above, that a document to be used “in conjunction with” an affidavit must be annexed to that affidavit. Again, dispensation from the effect of the rule is not sought in this case.
In the context of a statutory provision in stamp duties legislation with respect to the right to use goods in conjunction with a lease of or licence to occupy or use any land the words “in conjunction with” were, in Stansfield and Stansfield (Trading As Rambler Caravans) v Commissioner of Stamps (1978) 18 SASR 139; (1978) 8 ATR 347 (“Stansfield”), held to “simply mean together with, or along with”: Stansfield at 145 per Zelling J.
In Simpson v Australian Telecommunications Commission (1978) 34 FLR 337; (1978) 22 ALR 434 (“Simpson”) the Federal Court was dealing with a provision in an industrial award which required that industrial award to be “read in conjunction with” a federal telecommunications statute. In Simpson the Federal Court held that the words “read in conjunction with” manifested an intention to incorporate in the industrial award relevant sections of the statute dealing with matters relating to employment: Simpson FLR at 341 per St John J. The Federal Court so held having observed that in its ordinary meaning “conjunction” was defined in the Shorter Oxford English Dictionary as “action of conjoining; the fact or condition of being conjoined; union, connexion, combination”: Simpson FLR at 340 per St John J.
In Robowash Pty Ltd v Robowash Finance Pty Ltd [2000] WASCA 409; (2000) 158 FLR 338; (2000) 19 ACLC 393 a Full Court of the Supreme Court of Western Australia dealt with a creditor’s claim that the copy of an affidavit served was missing four pages from the annexures to it, and therefore the debtor’s application to set aside the demand was not properly made, contrary to the findings of a Master of the Supreme Court who had held that it was properly made. In allowing the appeal, the Full Court of the Supreme Court of Western Australia held that the debtor was required to serve a copy of the supporting affidavit including the annexures to it, and because the annexures were deficient, the requirements for service had not been complied with and the application to set aside a statutory demand was not valid. In making that finding the Full Court of the Supreme Court of Western Australia dealt with the equivalent of r.15.28(1) of the FCC Rules in the Rules of the Supreme Court 1971 (WA) which required that a document to be used in conjunction with an affidavit must be annexed to the affidavit and be referred to in the affidavit as being annexed. The primary judgment observed that:
21. The definition of “annex” in the Shorter Oxford English Dictionary is: To join; To unite materially, as an accessory; To append. The same dictionary defines the word “conjunction” which appears in O 37 r 2(8), as: The action of conjoining, while “conjoin” is defined as: To join together; to connect, unite. Cox J, in Re Timberworld Pty Ltd, unreported; SCt of Tas; 15 May 1991, acknowledged that the ordinary meaning of the word “annex” in the present context is to physically bind or join documents together with a staple, cord, pin or other device.
and
23. In my opinion, the respondent was required to serve, within the time limited, a copy of the affidavit, including the annexures to it. This view is in accord with the decision of Young J in the Supreme Court of New South Wales in Hassle v Commissioner of Patents (1987) 9 IPR 565, in which his Honour said, at 566 - 567:
“Part 38 r 4 provides that a document to be used in conjunction with an affidavit shall where convenient be annexed to the affidavit. If it is annexed to the affidavit then it must form part of the affidavit, which pursuant to r 7 is to be served on the opponent not later than a reasonable time before the occasion for using it arises. If the affidavit is served then the recipient may in the normal course of events photocopy it.”
Robowash at [21] and [23] per Kennedy J (with whom Wallwork and Anderson JJ agreed at [43] and [44] respectively).
On the face of it, the consequence of the failure to annex a document to an affidavit is that the document cannot subsequently be used in conjunction with the affidavit at hearing. It is unnecessary to finally determine that issue presently, as the Court can only assume that those documents which Tidewater wishes to use in conjunction with the affidavits filed on its behalf are presently annexed to the affidavits. The Court does not presently know what, if any, other documents Tidewater will seek to use in conjunction with the affidavits at hearing, or whether Mr Faulkner will object to any documents not presently annexed to affidavits, being used by Tidewater. Those are issues for hearing.
Declaration in relation to discovery
The relevant considerations to be taken into account in determining whether to make a declaration that it is in the interests of the administration of justice to order discovery were summarised in Abrahams v Qantas Airways Ltd (No. 2) [2007] FMCA 639; (2007) 210 FLR 314 at [25]-[26] per Lucev FM as:
25. In summary, it appears that in order to obtain an order for discovery in this Court the Court must determine on the available evidence that it is in the interests of the administration of justice to do so, and in making that determination must have regard to whether allowing discovery would be likely to contribute to the fair and expeditious conduct of the proceedings, and such other matters as the Court considers relevant. Those other matters might include:
(a)the relevance of any documents sought to be discovered;
(b)the volume of documents sought to be discovered;
(c)whether there is a court book containing relevant documents, and the extent to which relevant documents are included in the court book;
(d)whether discovery would narrow the issues;
(e)whether both parties seek discovery;
(f)whether there is consent to discovery;
(g)whether discovery is “of benefit” in the litigation; and
(h)the effect of discovery on litigants, especially, vulnerable litigants.
26. The categories of relevant factors for the purposes of s.45(2)(b) of the FM Act are obviously not closed.
In Hartnett Legal Services Pty Ltd v Ballantyne [2016] FCA 1116 (“Hartnett Legal Services”) the Federal Court dealt with the issues of relevance and disclosure generally for the purposes of s.45 of the FCCA Act and r.14.02(2) of the FCC Rules, and observed at [33]-[35] per Rangiah J that:
33 Fourthly, it would be quite inconsistent with s 45 of the FCC Act to construe “disclosure generally” as importing a wide test of relevance. The Peruvian Guano test was formulated on the basis of a desire to “make the rule as large as we can with due regard to propriety”: Peruvian Guano at 63. In contrast, s 45 operates to cut down the circumstances in which discovery may be ordered. It would be inconsistent with s 45 to interpret “discovery generally” as referring to the traditional test for discovery when, as Lucev FM observed in Abrahams, traditional discovery is generally prohibited in the Federal Circuit Court.
34 In summary, an order for “disclosure generally” under r 14.02(2)(a) of the FCC Rules is:
“(a) limited to disclosure of documents that are, or have been, in the disclosing party's possession, custody or control; and
(b) limited to documents that are directly relevant to the issues raised by the pleadings or in the affidavits.”
35 That is not to say that it is beyond the power of the Court to make a more expansive order where it is in the interests of the administration of justice to do so, but no such order was made in this case.
In Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd (ACN 002 792 163) & Ors v Woolworths Ltd (ACN 000 014 675) [2015] FCA 1520 (“Colgate-Palmolive”) the Federal Court dealt with an application for discovery made in October 2015, in relation to proceedings commenced on 12 December 2013, and in relation to which an eight week trial was due to commence in June 2016: Colgate-Palmolive at [1]-[2] and [18] per Wigney J. The Federal Court observed that the issue of discovery had first been raised in February 2014, and was again agitated in July and August 2014, but that no interlocutory application seeking discovery was sought at that latter time, and that the relevant party advised that the issue would be re-considered after the filing of non-expert evidence-in-chief by the respondent (the applicant, ACCC, being the party seeking discovery).
Discovery of certain documents in relation to what was described as “New Zealand data” arose for the first time in September 2015. It would appear that it had not previously been an issue: Colgate-Palmolive at [8]-[11] per Wigney J.
The Federal Court was concerned about the effect of the late application for discovery upon the eight week trial date listed for commencement in June 2016, and the possibility that that trial date might be lost: Colgate-Palmolive at [19]-[20]. Ultimately, the Federal Court concluded that the discovery application “has simply been made too late in the day”: Colgate-Palmolive at [21] per Wigney J. The Court concluded at [23] per Wigney J that:
23 In my opinion, given the delay in seeking discovery, the difficulties any such order may cause to the existing timetable and hearing date, the added complexity that may arise as a result of this additional aspect of the case, and the, at best, uncertain relevance and importance of the material, the discovery order is not warranted.
A number of observations might be made in relation to Colgate-Palmolive. Firstly, that although in respect of a much larger case, the discovery sought was limited to a single category of documents. Secondly, and again although a much longer trial, the trial was still eight months away when the Federal Court rejected the discovery application by reason, in part, of the proximity of the hearing. Thirdly, the Federal Court took into account the amount of time which had elapsed between the proceedings commencing, and discovery having first been raised, and then the particular discovery application having arisen, there being two months before discovery was raised after the proceedings had commenced, and approximately 21 months before the particular discovery application in relation to the New Zealand data was raised.
In this case, the discovery application has been made less than two months before a hearing of three days, which had been re-listed once, commenced, albeit briefly, in August 2014, and re-listed in September 2015 for a further three days of hearing in December 2016. By the time the application in a case was filed, and the arguments on either side made (which themselves took a full day over two half days), there was little more than a month before the hearing, and as at the date of these Reasons for Judgment just three weeks to that hearing. The proximity of the hearing weighs heavily against a discovery application, particularly one of the breadth of the application here, which is wide-ranging and covers 77 separate requests for discovery of documents or particular categories of documents, often expressed in the broadest of terms. Case management is a relevant consideration, particularly in relation to the interests of the administration of justice, which is broader than the interests of justice by reason of its administrative aspect (including case management): Genovese v BGC Construction Pty Ltd [2006] FMCA 1507 at [28] per Lucev FM. In this case, the breadth of the discovery application, and the time needed to deal with it, and the possibility that new issues might arise from the discovery (assuming such discovery were able to be completed within the relevant timeframe) all cause concern to the Court in respect of this hearing which is presently listed for a third time for three days of hearing. The mere fact that it took a full day (over two half days) to argue the discovery application demonstrates it breadth and complexity, and why it was an application which should never have been left, as it has been, to so late in these proceedings to prosecute. Were the hearing to have to be adjourned by reason of any or all of the issues that the Court has just adverted to, it would mean that eight and a half of a possible nine days of hearing have been lost over a period of more than two years, and, further, and importantly, in a single Judge registry of this Court, the matter would not be able to be re-listed until approximately mid-2018. Those factors weigh heavily against granting a declaration with respect to discovery.
The Court also notes that when discovery was initially raised by Mr Faulkner’s solicitor, it was only 13 days before the August 2014 hearing. Discovery was, as set out above: see [12]-[13] above, briefly adverted to both at the hearing in August 2014 and in the Reasons for Judgment in Faulkner (No. 2). Once judgment was handed down in Faulkner (No. 2), and the parties undertook further mediation, more than 9 months elapsed between December 2015 and September 2016 before Mr Faulkner’s solicitors again raised the issue of discovery with Tidewater’s solicitors. On the evidence before the Court that delay is unexplained, other than by vague references to some conferral between Counsel for each party.
When Mr Faulkner’s solicitors wrote to Tidewater’s solicitors on 8 September 2016 seeking discovery of documents by 22 September 2016, and foreshadowing a discovery application if a positive response was not received, it was not then until 29 September 2016 that Mr Faulkner’s solicitors contacted Tidewater’s solicitors (who had not replied) and were told that a reply could not be expected before 4 October 2016, and that if that was unacceptable then a discovery application should be made to the Court. In any event it would appear that no response was ultimately received from Tidewater’s solicitors, and the present application in a case was then not made until 11 October 2016. Thus, with less than three months before the hearing of this matter, Mr Faulkner’s solicitors exhibited no particular urgency, having set a deadline in their 8 September 2016 letter of 22 September 2016 for a response, the evidence indicates that it was not until a week later that contact was made with Tidewater’s solicitors, and then having been told that a response could not be expected until 4 October 2016 it was not until a week after that date than application was made to the Court.
The delay, overall, and in particular following the completion of the unsuccessful mediation, and further once the issue of discovery was sought to be reagitated by Mr Faulkner in September and October 2016, exhibit little sense of urgency on the part of Mr Faulkner, and the delay, and particularly ongoing delay, weigh heavily against the issuance of a declaration to facilitate discovery in this case.
The Court also observes that the hearing of this matter which commenced in August 2014 commenced without any orders for discovery having been made, and that the issue of discovery was not raised with the Court until the commencement of that August 2014 hearing. Albeit that Tidewater had raised a jurisdictional issue which was, and did, delay the further hearing of the matter, the failure of Mr Faulkner to seek discovery orders prior to the August 2014 hearing commencing, again exhibits a lack of urgency in relation to the matter of discovery.
As the Court observed in a directions hearing on 17 October 2016, it appears that Mr Faulkner’s solicitors have sat down (at some time prior to writing the 5 August 2014 letter to Tidewater’s solicitors) with the affidavits filed on behalf of Tidewater, examined them keenly, and produced a request for discovery (which is now essentially replicated in the application in a case) which covers every theoretically conceivable document which might exist based upon the broadest imaginable inferences to be drawn from the evidence in those affidavits. There are 77 documents or categories of document (and principally the latter) sought by Mr Faulkner. Many of the categories are broadly described as documents “relating to” or “[i]n relation to … or by implication referred to or relied upon …”. The Court is simply not persuaded that such wide-ranging general discovery is either appropriate or necessary at this stage in these proceedings.
The Court must bear in mind that if it were to grant discovery, and because of discovery new issues were to arise (discovery is unlikely to narrow the issues at this stage given the breadth of the discovery application), and a further adjournment of these proceedings were to be necessary, that the eight and a half days lost might usefully have been utilised by other litigants in this Court. Thus, for example, eight and a half days of hearing time would have accommodated 17 migration judicial review applications. In circumstances where the Court is listing migration judicial review applications in the Perth Registry into 2018, that would cause significant concern in terms of the wastage of time and the under-utilisation of the Court’s resources caused by the applicant’s delay in this matter. It would simply not be in the interests of the administration of justice, or the public interest (including that of the taxpayers who primarily fund the Court), for these proceedings to be adjourned for a third time to a fourth three-day listing.
The Court has remained cognisant of the fact that as at 8 August 2014 Tidewater’s solicitors indicated that they were drafting a list of discoverable documents to be forwarded “very shortly” to Mr Faulkner’s solicitors. That fact is not one which favours the grant of a declaration with respect to discovery at this late stage of the proceedings. If anything, it makes the delay, particularly the delay since December 2015 and the termination of the mediation all the more inexplicable. The fact that Tidewater’s solicitors had indicated, if not expressly then certainly impliedly, that discovery was largely complete in August 2014 was a very powerful reason to press for discovery, or to make an application to this Court for a declaration with respect to discovery, as soon as possible after the termination of the mediation in December 2015. It was not a reason to delay that process until September 2016. Had the present application in a case been filed in January 2016 or February 2016 the issues which the Court has set out above, and which operate to preclude the grant of a declaration concerning discovery in this case, would largely have been avoided.
In all of the above circumstances, it is not in the interests of the administration of justice to grant a declaration to facilitate the discovery sought in the application in a case. It follows that, save as set out above in relation to the copies of documents to be provided pursuant to r.14.10 of the FCC Rules, the application in a case will be dismissed.
Conclusion and orders
The Court has concluded that for the above reasons, there will be orders that:
a)in compliance with r.14.10 of the FCC Rules, Tidewater is to provide to Mr Faulkner copies of those documents identified at [35] above, save to the extent that either production for inspection or copies of those documents has already been provided, and to do so by 4.00pm on 16 November 2016; and
b)otherwise, the application in a case for discovery by Mr Faulkner filed on 11 October 2016 is to be dismissed.
In relation to costs, and bearing in mind the provisions of s.570(2) of the FW Act, which make costs in FW Act proceedings in this Court the exception rather than the rule, the parties will need to give very serious consideration as to whether a costs application by either of them is justified in the circumstances. If a costs application is to be made then it can be made in accordance with the provisions of r.21.02(1)(a) of the FCC Rules, and if any such application is made, the Court will list that costs application for directions.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Date: 14 November 2016
3
11
7