Kenneth John Aranha v Australian Wiper Co
[1995] IRCA 581
•26 October 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 3484 of 1995
B E T W E E N :
KENNETH JOHN ARANHA
Applicant
AND
AUSTRALIAN WIPER CO
Respondent
Before: Judicial Registrar Millane
Place: Melbourne
Date: 26 October 1995
REASONS FOR DECISION
On the return of a subpoena for production of documents by the Respondent and issued at the request of the Applicant, the Respondent failed to attend Court on 24 October 1995 as required. As a result, on the abovementioned date the matter was adjourned to 9.30am on 26 October 1995 and the Respondent was notified by the Court that its attendance at Court was required on the adjourned date. In any event on 24 October 1995 the Respondent produced to the Court copy documents referred to in the subpoena save for documents dated 1 to 17 May 1995 inclusive sought in item 2 of the schedule to the subpoena. The Respondent also produced to the Court copy documents which on 12 September 1995 were the subject of an order for discovery in favour of the Applicant within 7 days of the Court making that order.
On the further return of the Applicant’s subpoena on 26 October 1995 the Respondent also issued a subpoena for production of documents at 9.30am on that date. The Court was informed that such subpoena had been served on the Applicant in the Court precinct together with conduct money at a time between the subpoena being issued at 9.15am and the commencement of the adjourned matter at 9.30am. In these circumstances and ignoring the question of the nature of the documents sought for production for the time being, I set aside the Respondent’s subpoena as being oppressive and an abuse of process.
In reading both subpoenas it came to my attention that each document omitted reference to the penalty notice contained in Form 41 of the Industrial Relations Court Rules. Both unrepresented parties were informed of this omission and both gave the explanation that the format of the documents used by them had been provided to them by the Court registry without the inclusion of the required notice.
The Respondent explained its absence at Court on 24 October 1995 by reference to what it described as a comedy of errors. I accepted its explanation noting that the document’s non-compliance with Order 27 Rule 6(4) of the Industrial Relations Court Rules precluded any consideration of and imposition of the significant penalties normally associated with the failure to obey a subpoena.
Taking into account all of the abovementioned matters, I permitted the Respondent to make oral application to the Court for discovery and production of the documents referred to in the schedule to the Respondent’s subpoena, noting also that the Respondent was at liberty to issue a further subpoena in the proper form if it chose to do so.
Notwithstanding the opportunity provided the Respondent was unable to satisfy me that the documents sought in items 1 and 2 of the schedule to its subpoena were relevant to the issues between the parties in an application for unlawful termination of the Applicant’s employment. Accordingly, the Respondent’s oral application for discovery and production of those documents by 31 October 1995 was refused and the orders as set out below were made.
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The subpoena issued at the Respondent’s request on 26 October 1995 returnable before this Court on the same date at 9.30am be set aside.
By consent of the parties the copy documents produced to the Court by the Respondent on 24 October 1995 comprising:
(a) Copies of all Employee Time Sheets for the period 7 March
1995 to 21 June 1995
(b) Copies of all Fuel Purchases including Purchasing Officer’s (Driver) signature and date of transactions made at the BP, Carrum Downs Service Station for the period 19 May 1995 to 31 May 1995
(c) Copies of all Fuel Purchases including Purchasing Officer’s (Driver) signature and date of transactions made at the Mobil, Carrum Downs Service Station for the period 1 May 1995 to 31 May 1995
be released to the Applicant forthwith.
The Respondent on or before 4.00pm on Monday, 30 October 1995 give the Applicant access to or provide copies of all fuel purchase documents held in its possession and made by the Applicant for purchase of fuel at the BP Carrum Downs Service Station for the period 1 May 1995 to 18 May 1995 inclusive.
The Applicant produce to the Court on the return date for hearing of this proceeding the documents released into his custody and referred to in Order 2 above.
The Order reserving the costs of the hearing of this matter made on 24 October 1995 be vacated.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court
Rules.
I certify that this and the preceding four (4) pages are a true copy of the reasons for decision of Judicial Registrar Millane
Associate:
Dated: 26 October 1995
Applicant in Person.
Respondent in Person: Mr Bruce McDonald
Date of hearing: 26 October 1995
Date of decision: 26 October 1995
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - return of subpoenas for production of documents and the effect of the non-compliance of the subpoenas with the Court form - short service of subpoena in court precinct - subpoena set aside as being oppressive and an abuse of process.
Industrial Relations Court Rules, Order 27, Order 27 Rule 6(4).
KENNETH JOHN ARANHA -v- AUSTRALIAN WIPER CO
No. VI 3484 of 1995
Before: Judicial Registrar Millane
Place: Melbourne
Date: 26 October 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 3484 of 1995
B E T W E E N :
KENNETH JOHN ARANHA
Applicant
AND
AUSTRALIAN WIPER CO
Respondent
MINUTES OF ORDERS
Judicial Registrar Millane 26 October 1995
THE COURT ORDERS THAT:
The subpoena issued at the Respondent’s request on 26 October 1995 returnable before this Court on the same date at 9.30am be set aside.
By consent of the parties the copy documents produced to the Court by the Respondent on 24 October 1995 comprising:
(a) Copies of all Employee Time Sheets for the period 7 March
1995 to 21 June 1995
(b) Copies of all Fuel Purchases including Purchasing Officer’s (Driver) signature and date of transactions made at the BP,
Carrum Downs Service Station for the period 19 May 1995 to 31 May 1995
(c) Copies of all Fuel Purchases including Purchasing Officer’s (Driver) signature and date of transactions made at the Mobil, Carrum Downs Service Station for the period 1 May 1995 to 31 May 1995
be released to the Applicant forthwith.
The Respondent on or before 4.00pm on Monday, 30 October 1995 give the Applicant access to or provide copies of all fuel purchase documents held in its possession and made by the Applicant for purchase of fuel at the BP Carrum Downs Service Station for the period 1 May 1995 to 18 May 1995 inclusive.
The Applicant produce to the Court on the return date for hearing of this proceeding the documents released into his custody and referred to in Order 2 above.
The Order reserving the costs of the hearing of this matter made on 24 October 1995 be vacated.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court
Rules.
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