Martin, N. v Lewis Construction Co. Pty Ltd

[1986] FCA 212

IN THE FEDERAL COURT OF AUSTRALIA )

VICTORIA	DISTRICT	REGISTRY	)	NO. v. 6 of 1986
)

DIVISION INDUSTRIAL )

B E T W E E N :

NORMAN MARTIN

:_:

and

LEWIS CONSTRUCTION COMPANY	!
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PTY. LTD.	7 ,

29 MAY, 1986 KEELY J.

REASONS FOR JUDGMENT

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Norman Martin (the prosecutor) laid an information

alleging that on 14 February 1986 Lewis Construction Company

Pty. Ltd. (the defendant) had dismissed him by reason of the

circumstance that he was a member of the Australian Building

Construction Employees and Bullders Labourers' Federation

(the Federation), an organization of employees then

registered under the Conciliation and Arbitration Act (the

Act). The information was laid and filed on 24 February

1986, on which date a summons was issued, containing

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particulars of the charge.	I ' L .
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On 13 May 1986 three subpoenas for the productlon of

documents were issued, at the request of the defendant's

solicitors, addressed to the General Secretary of the

Federation, the Secretary of the Victorian Branch of the

Federation and the Secretary of the N.S.W. Branch of the

Federation. The court was- informed by counsel for the

parties and the persons to whom the subpoenas were addressed

that those subpoenas were in identical terms. The subpoenas

sought the production of a large number of documents xhich

were identified or described in 49 paragraphs in a schedule

to each subpoena. Paragraphs 1-41 (both inclusive)

identified certain documents and paragraphs 42-49 (both

inclusive) described documents by reference to a class.

On 15 May 1986 three further subpoenas for the

production of documents, addressed in the same way, were

issued at the request of the defendant's solicitors. Those

subpoenas, which were in identlcal terms, sought the

production of documents described in three paragraphs by

reference to a class of documents. It was made clear to the

court that those subpoenas were not intended to replace the

subpoenas issued on 13 May 1986.

By two notlces of motion, dated 23 May 1986, the

persons to whom the subpoenas issued on 15 May 1986 were

addressed sought orders setting aside those subpoenas either

wholly or in part. Those notices of motion were supported by

an affidavit, sworn 23 May 1986, by Mr. Nowicki, a research

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officer employed by the Federation. By two notices of

motion, dated 21 and 28 May 1986 respectively, the persons to

whom the subpoenas issued on 13 May 1986 were addressed

sought orders setting aside those subpoenas either wholly or

in part. The first of those two notices of motion was

supported by an affidavit by Mr. Nowicki, sworn 27 May 1986.

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In his affidavit, sworn 27 May 1986, Mr. Nowicki I

referred to the subpoenas issued on 13 May 1986 and said that

he believed that copies of all of the documents referred to

in paragraphs 1-41 (both inclusive) of the schedule to the

subpoenas "are in the possession, custody or control of the Master Builders' Association of Victoria" (the MBAV). He

also swore that I I . . . copies of those documents were tendered

as exhibits in proceeding number C1852 of 1985 in the

Australian Conciliation & Arbitration Commission and in

proceedings in the Federal Court numbered V23 of 1981" and

referred to the need "to devote the time and effort of its

tthe Federation's3 limited staff and resources to the

oppressive task of locating such copies of such documents as

may be in its possession."

Mr. Frank Parry, a solicitor employed by the

defendant's solicitors, swore an affidavit on 28 May 1986

in which he stated that he had been "informed by Mr. John

Glasson the Director/Industrial Relations of the ... MBAV",

and believed that, with two exceptions, copies of the

documents referred to in paragraphs 1-41 (both inclusive) "are not in the possession, custody or control of the MBAV"

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and that not all of the documents had been exhlbits In the proceedings referred to in Mr. Nowicki's affidavit. He Went on to say:

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' I . . . it would become onerous for the MBAV or the

Defendant to examine the exhibits in the abovementioned

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proceedings to ascertain which of the said documents

numbered 1 to 41 (inclusive) were &hibits in those two

sets of proceedings. - In the proceedings in the

Australian Conciliation and Arbitration Commission there

were in excess of 300 exhibits. In the Federal Court

proceedings I believe there were some hundreds of

exhibits. To obtain access to these exhibits and then

peruse them against the said documents numbered 1 to 41

(inclusive) would involve the Defendant requiring its

staff to devote a great deal of time and effort."

In my opinion the subpoenas in so far as they relate

to the documents referred to in paragraphs 1-41 (both

inclusive) are so wide that they are oppressive, having

regard to the terms of the paragraphs and to the material in

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the affidavit of Mr. Nowicki. In this connexion Mr. Parry's

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reference to the "great deal of time and effort" which would

be requlred of the defendant's staff in order to "obtain

access to these exhibits" gives some support to the evidence

Of Mr. Nowicki as to the oppressive nature of the task

involved. It may be added	that	the	relevance	of the
documents is not apparent.

The majority of paragraphs 1-41 refer to documents

dated more than five years before the date of the alleged

offence (14 February 1986). Of the remaining paragraphs, one

does not give any date and only three relate to documents

dated 1985 or later and one of those three refers to a

document dated March 1986 i.e. after the date of the alleged

offence .

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As to the documents referred to in paragraphs 42-49

(both inclusive) Mr. Nowicki said:

" 6 . The task of identifying and locating documents

answering the very general description of those

referred to in paragraphs 42-49 of the Schedules to

the abovementioned Subpoenas would be onerous, time

consuming and oppressive as it would necessitate an

examination of a great amount of documents

collected over five years and in many cases stored

in archives andlor various branch offices of the

Federation around Australia. Other of such

documents may be held by various solicitors in

different States acting for the Federation in

litigation (other than the present proceedings).

To locate such documents would occupy the staff of

the Federation for	an inordinate and oppressive
amount of time.

7 .    The task of locating and identlfying the documents

sought in paragraphs 42-49 inclusive of the

I	Schedules to the abovementioned Subpoenas could not be entrusted tu secretarial staff but would have to be performed by executive or research officers or legal a&visors of the Federation all of whom are	.	.1
heavily involved in preparation for these and other

proceedings. " :,

There is no evidence to contradict Mr. Nowicki's

evidence as to the size and nature of the task involved in

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complying with this part of the schedule to the subpoenas.

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I In my opinion paragraphs 42-49 (both inclusive) are i

oppressive. Those paragraphs in the schedule to the

subpoenas are very wide in their terms. Paragraphs 43-48

(both inclusive) require not only the production of the

minutes of the meetings referred to but also the production

of "other records or recordings of" those meetings.

Paragraphs 43-45 (both inclusive) requlre production of those

documents in respect of all meetings during a period of more

than 5 years (i.e. since 1 January 1981) of the Federal

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Management Committee of the Federation, of the Victorian

Branch Management Committee and of the N.S.W. Branch

Management Committee. They sought all those "minutes or

other records ... relating to Industrial campaigns in which

the Federation was involved". It will be noted that these

paragraphs of the schedules to the subpoenas require the

persons to whom they are addressed to determine whether those

minutes and other records relate to "Industrial campaigns in

i which the Federation was involved".

Paragraphs 46-48 (both inclusive) are directed to

meetings, held from 1 January 1981 to date, of organizers of

the Federation and organizers of the Victorian Branch and

organizers of the N.S.W. Branch. It may be noted that,

unlike paragraphs 43, 44 and 45 of the schedule, they are not limited to minutes and other records "relating to Industrial campaigns in which the Federation was involved". Further,

they require production not only of all "minutes ... or other

records or recordings" but also production	of all "notes" of	.	.J
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those meetings.	, ..

Paragraph 42 is couched in extremely wide terms and

again relates to a period in excess of five years. It may be

added that, on its face the relevance	of those documents is	i '
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not apparent.

Paragraph 49 is expressed in terms which are on any

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view too wide. For example, it would seem that they would

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require the persons to whom they are addressed to produce all

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notes and letters, amongst other things, brought into

existence since 1 January 1981 (provided that they are in

their possession custody or control) "which concern

Industrial campaigns conducted by Ethe Federatlonl against the defendant either alone or together with other building

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contractors" - presumably including all letters received from	!
members or employers concerning those unspecified campaigns.

I turn to the subpoenas issued on 15 May 1986. In my

opinion paragraph 1 of the schedule to those subpoenas is not

oppressive except insofar as it requires the production of

all "notes" of the meeting.. It is llmited to a meeting of

the National Council of the Federation held in Adelaide

between 10 and 17 November 1985.

In my opinion paragraphs 2 and 3 of the schedule are

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oppressive as being too wide. In his affidavit, sworn	23 May	i
1986, Mr. Nowicki said:-

" 3 . Further the task of identifying and locating

documents answering the description contained in

paragraph 2 and 3 of the Schedule to the

abovementioned Subpoenas would be onerous, time

consuming and oppressive as it would necessitate an

examination of a great amount of documents

collected over five years and in many cases stored

in archives andfor various Branch Offices of the

Federation around Australia. Other of such

documents may be held by various solicitors in

different States acting for the Federation in

litigation (other than the present proceedings).

To locate such documents would occupy the staff of

the Federation for an inordinant (sic) and

oppressive amount of time.

4. Furthermore insofar as identifying and locating the

documents answering the description of those

referred to in paragraph 3(a) of the Schedule to

the abovementioned Subpoena I am informed and

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verily believe that the Federation has had a policy

of pursulng a 35 hour week for ita members since

the 1360's and further that the Federation has

actlvely pursued such claims since 1981."

Again, there is no evidence to contradict Mr.

Nowicki's evidence on that aspect.

Paragraph 2 relates to all meetings (Including that

referred to in paragraph 1 of the schedule) of the National

Council of the Federation since January	1381. Paragraph 3 is	. ..
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limited on its face to two subject matters but it is directed

to all meetings of the Federal Council, the Federal

Management Committee, the N.S.W. Branch Management Committee

and the Victorian Branch Management Committee. It is

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entirely unlimited as to the times when those meetings were	;:
held; the material before the court suggests that there may

have been meetings within that category approximately	20
years ago.

I am not prepared to accede to the suggestion, made by t

Mr. Les Kaufman. of counsel, on behalf of the defendant, that	._
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the court should reduce the width of that part of the	!
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I subpoena by inserting,in paragraph 3 of the schedule, the

date of 7 October	1985 so as to limit it to meetings on or
after that date.

Accordingly each subpoena issued 13 May 1986 is set

aside wholly. As to each subpoena issued 15 May 1986

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paragraphs	2	and	3	of	the schedule are set aside. The	i -
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persons to whom the subpoenas Issued 15 May 1986 are

addressed are directed to comply with paragraph 1 of those

subpoenas varled by deleting from it the word "notes".

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