Sharon Bowker; Annette Coombe; Stephen Zwarts v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The Victorian Branch and Others

[2015] FWC 2910

[2015] FWC 2910

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Sharon Bowker; Annette Coombe; Stephen Zwarts

v

DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The Victorian Branch and Others

(AB2014/1260; AB2014/1261; AB2014/1266)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 28 APRIL 2015

Request for order to produce documents; request premature; request not granted.

[1] On 6 March 2015 the applicants requested an order requiring DP World Melbourne Pty Ltd (DP World), a respondent in these proceedings to produce a range of documents broadly identified in a draft order prepared by the applicants. The order was opposed by DP World on various grounds. I listed the request for the order to produce for hearing on 16 March 2015. At the conclusion of the hearing I announced my decision not to grant the order requested by the applicants and indicated that I would publish my reasons in due course. These are my reasons for that decision.

[2] At the time that the order of production was sought, various interlocutory steps which are set out in amended directions issued by me on 13 March 2015, had not been completed. The applicants had filed and served witness statements and other documentary material on which the applicants intended to rely. A program for raising and dealing with objections to material in the applicants’ witness statements and documents was not complete and DP World was not due to file any of its witness statements and other documentary material on which it intended to rely until 22 May 2015. It was my intention to deal with the objections to material in the applicants’ witness statements and documents in a timely fashion and before DP World and the other respondents were called upon to file material in reply. I have since done so. 1

[3] The applicants’ request for an order to produce documents was therefore made at a time when the nature and identity of documents that DP World might file and serve pursuant to my directions of 13 March 2015 was not known. There was also ongoing debate about whether some of the particular matters raised in the points of claim and then amplified in the applicants’ witness statements were referable to an allegation that particular conduct said to have been bullying conduct occurred at work. In addition DP World indicated that some of the documents identified in the draft order for production would willingly be produced and provided to the applicants. 2

[4] That the application for an order to produce documents was made after the applicants had filed their witness materials and documents on which they intended to rely is an indication that the documents sought in the draft order for production were not essential to the preparation of their witness material, though I accept that some of the documents sought may be material in proving or corroborating various of the allegations made in the witness statements or relevant to the question of ongoing risk of bullying and of remedy.

[5] In addition it seemed to me likely that at least some of the material that was sought by the applicants in the draft order to produce documents will be produced as part of DP World’s evidentiary case due to be filed and served on 22 May 2015. Once that step is completed, the applicants will be able to review their request for an order to produce documents and consider the ongoing necessity to request production of some or all of documents sought in light of the evidentiary case that is proposed by DP World and in light of my determination (which has since been made) of the evidentiary objections to material in the applicants’ witness statements and documents.

[6] In these circumstances, I considered that the request for an order directed to DP World to produce documents was premature.

[7] DP World also raised a number of other grounds opposing the making of an order or opposing particular aspects of the proposed draft order but in the circumstances I found it unnecessary to deal with those grounds.

DEPUTY PRESIDENT

Appearances:

T. Lange for the applicants

H. Skene and E. Hawthorne for DP World

Hearing details:

Melbourne

2015.

16 March

 1   See statement dated 24 April 2014 and attached spreadsheet

 2   Correspondence from solicitors from DP World to solicitors for the applicant that 6 March 2015 at [7]

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