REASONS FOR DECISION

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

Sharon Bowker; Annette Coombe; Stephen Zwarts

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]

Printed by authority of the Commonwealth Government Printer

The case involves Sharon Bowker, Annette Coombe, and Stephen Zwarts who have brought proceedings against DP World Melbourne Limited, the Maritime Union of Australia, and others. The dispute revolves around a request for the production of documents, which the plaintiffs sought before the legal framework governing the disclosure of documents was fully established. The court hearing this matter was the Fair Work Commission.

The central legal issue before the Commission was whether the plaintiffs' request for the production of documents was premature, given that the procedural guidelines for such requests were not yet fully developed at the time of the request. The Commission had to determine if the request was made in accordance with the existing rules and whether the timing was appropriate. Additionally, the Commission considered whether the documents sought were necessary for the proceedings and if the production request was justified under the circumstances.

The Commission concluded that the request for the production of documents was indeed premature as the procedural framework governing such requests had not been fully established at the time the request was made. Consequently, the Commission declined to grant the request. The reasoning was grounded in the need to adhere to the established procedures and to ensure that any request for document production is made within the confines of the applicable legal guidelines. The Commission also noted that the timing of the request was not aligned with the procedural developments, which further supported its decision not to grant the request.

No specific orders were made beyond the refusal to grant the request for the production of documents. The Commission's decision underscored the importance of adhering to procedural rules and timelines in making requests for document production.

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

REASONS FOR DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established