Faulkner v Tidewater Marine Australia Pty Ltd

The Federal Circuit Court of Australia, at Perth, considered an application by the respondent, Tidewater Marine Australia Pty Ltd, for directions to issue subpoenas. The applicant, Frank Faulkner, a former Master employed by the respondent, alleges that he suffered loss as a result of adverse action taken against him by the respondent, in contravention of the general protection provisions of the *Fair Work Act 2009* (Cth). The dispute centres on Mr Faulkner's dismissal, alleged injury in employment, and alteration of his position to his prejudice, which he claims arose from the exercise or proposed exercise of his workplace rights.

The court was required to determine whether to grant leave for the respondent to issue four additional subpoenas, addressed to Colin Muir, Treena Vivian, Paul Halliday Cook, and Wayne Michael Morris, pursuant to rule 15A.05 of the Federal Circuit Court Rules 2001 (Cth). This rule governs the issuance of subpoenas and requires the court to be satisfied of a legitimate forensic purpose and the relevance of the evidence sought. The respondent had already issued subpoenas to five other individuals.

In its reasoning, the court noted that the affidavit supporting the application for subpoenas was not particularly helpful in clearly identifying the forensic purpose and relevant evidence. However, the court considered the nature of Mr Faulkner's claim, which involved allegations of adverse action related to workplace rights concerning occupational health and safety issues. The court also examined the respondent's defence, which included claims of redundancy and issues with Mr Faulkner's medical clearance. The court found that the proposed witnesses, including Mr Muir (State Manager) and Ms Vivian (HR Manager), had direct involvement in the circumstances surrounding Mr Faulkner's employment, termination, and subsequent reinstatement, making their evidence potentially relevant to the issues in dispute.

The court directed that subpoenas issue to Colin Muir and Treena Vivian. Written reasons for judgment were to be published at a later time.