Smith v Granada Tavern and Ors and Dennington v Prescott and Anor

[2007] FMCA 263

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SMITH v GRANADA TAVERN & ORS and
DENNINGTON v PRESCOTT & ANOR [2007] FMCA 263

INDUSTRIAL LAW – Objection to subpoenas - privilege against self–exposure to penalty – s.187 Commonwealth Evidence Act – alleged waiver of privilege – scope of subpoenas alleged to be abuse of process – objections to subpoenas save as to scope dismissed.

Workplace Relations Act1996 (Cth), ss.169, 169(2)(c), 400(5), 407, 719, 836
Federal Magistrates Court Rules 2001, rr.403, 405, 15.18
Evidence Act 1995 (Cth), s.187
Stephen Odgers' Uniform Evidence Law
Crimes Act 1914 (Cth)
Evidence Act 1995 (NSW)
Workplace Relations Regulations 2006, reg.19.4, 19.11, 19.22, 19.23
Wigmore on Evidence
Limitation of Actions Act 1958 (Vic)

Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat & Livestock Corporation (1979) 42 FLR 204
Australian Competition & Consumer Commission v J McPhee & Son (Australia) Pty Limited (1997) 77 FCR 217
Reid v Howard (No. 2) (1995) 184 CLR 1
Environmental Protection Authority v Caltex Refining Co Pty ltd (1993) 178 CLR 477
Microsoft Corp v CX Computer Pty Ltd (2002) 116 FCR 372
R v Ronen & Anor (2005) 62 NSWLR 707
R v Ronen (1994) NSWSC 1282
Braswell v United States (1988) 487 US 99
Shapiro v United States (1948) 335 US 1
Birrell v Australian National Airlines Commission (1984) 55 ALR 211
Bridal Fashions Pty Ltd v Comptroller General of Customs (1996) 135 FLR 100
Commonwealth v Verwayen (Verwayen’s/Voyager case) (1990) 170 CLR 394
Craine v Colonial Mutual Fire Insurance Co Limited (1920) 28 CLR 305
Great Atlantic Insurance Co v Home Insurance Co (1981) 1 WLR 529

Applicant: RAYMOND MURRAY SMITH

First Respondent: ACN 090 444 518 PTY LTD TRADING AS GRANADA TAVERN

Second Respondent: MICHAEL DAVID HIBBERD

Third Respondent: JOCELYN MAREE BERECHREE

File number: LNG 39 of 2006

Applicant: SALLY DENNINGTON

First Respondent: GREGORY L PRESCOTT

Second Respondent: MICHAEL DAVID HIBBERD

File number: LNG 42 of 2006

Judgment of: Burchardt FM

Hearing date: 6 February 2007

Date of last submission: 19 February 2007

Delivered at: Melbourne

Delivered on:  9 March 2007

REPRESENTATION

Counsel for the Applicants: Mr T Forrest QC and Mr N Harrington

Solicitors for the Applicants: Clayton Utz

Counsel for the Respondents: Mr N Clelland SC and Mr G Livermore

Solicitors for the Respondent: Simmons Wolfhagen

ORDERS – LNG 39 of 2006

1. The Court notes that the Respondents have undertaken to produce to the Court, and to serve a copy thereof upon the Applicant, all documents of the sort indicated as appropriate for production by the decision of Burchardt FM given on 9 March 2007 on or before
   16 March 2007.

2. That the Applicant file and serve any further affidavit material upon which he intends to rely at final hearing on or before 28 March 2007.

3. That the proceedings be adjourned for final hearing at Hobart on

   
   

   2 April 2007 at 10.15 am with an estimated hearing time of three days.

4. Liberty to apply is granted to the parties in relation to any matters arising out of these orders.

ORDERS – LNG 42 of 2006

1. The Court notes that the Respondents have undertaken to produce to the Court, and to serve a copy thereof upon the Applicant, all documents of the sort indicated as appropriate for production by the decision of Burchardt FM given on 9 March 2007 on or before 5 April 2007.

2. That the Applicant is to file and serve any further affidavit material upon which she intends to rely at final hearing on or before 4 May 2007.

3. That the matter be listed for trial at Hobart on 14 June 2007 at 10.15 am with an estimated hearing time of one day.

4. Liberty to apply is granted to the parties in relation to any matters arising out of these orders.

5. That costs be reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

LNG 39 of 2006

RAYMOND MURRAY SMITH

Applicant

And

ACN 090 444 518 PTY LTD TRADING AS GRANADA TAVERN

First Respondent

MICHAEL DAVID HIBBERD

Second Respondent

JOCELYN MAREE BERECHREE

Third Respondent

LNG 42 of 2006

SALLY DENNINGTON

Applicant

And

GREGORY L PRESCOTT

First Respondent

MICHAEL DAVID HIBBERD

Second Respondent

REASONS FOR JUDGMENT

1. These are reasons for judgment in respect of issues that have arisen about subpoenas issued by the Applicants in two not wholly unrelated proceedings.  Although the substantive proceedings are to be heard separately, at the request of the parties the interim dispute about subpoenas has been heard together. 

2. The introductory background to these matters is not controversial and is set out in a helpful, summarised way in the Respondents’ document headed ‘The Application to set aside subpoenas’ (“the Respondents submissions”) filed on 21 December 2006. 

3. On 17 October 2006 an application LNG 39 of 2006 ("L39") was filed by Raymond Smith ("Inspector Smith"), a workplace inspector employed by the Office of Workplace Services, in relation to alleged contraventions of s.400(5) of the Workplace Relations Act 1996 (Cth) ("the Workplace Relations Act"). That application seeks civil penalties pursuant to s.407 of the Workplace Relations Act against Respondents ACN 090 444 518 Pty Ltd trading as Granada Tavern ("Granada Tavern"), Mr Michael David Hibberd and Ms Jocelyn Berechree.

4. On 31 October 2006 a further application LNG 42 of 2006 ("L42") was filed by Sally Dennington ("Inspector Dennington"), also a workplace inspector employed by the Office of Workplace Services, pursuant to s.719 of the Workplace Relations Act in relation to alleged breaches of the Hospitality Industry, Accommodation, Hotels, Resorts and Gaming Award 1998. That application seeks civil penalties against the Respondents Mr Michael David Hibberd and Mr Gregory L Prescott.

5. On 28 November 2006 Inspector Smith caused two subpoenas to be filed and served which were, and I quote the Respondents’ submissions, "directed to Mr Hibberd in his own capacity and on behalf of the Granada Tavern". 

6. Also on 28 November 2006 a third subpoena was filed and served relating to L42, the application of Inspector Dennington. 

7. Each of the three subpoenas required production on

   
   

   11 December 2006.  

8. On 8 December 2006 at a directions hearing, at which both matters were the subject of argument and orders, the Court was informed that the Respondents wished to apply for the subpoenas to be set aside pursuant to r.15.18 of the Federal Magistrates Court Rules 2001 (“the Rules”). During the course of submissions counsel for the Applicants indicated that new subpoenas would be issued and served on the Respondents in substitution of some of the existing subpoenas.

9. The Court adjourned the return of each of the subpoenas then on foot sine die and directed that any further subpoenas were to be issued by 11 December 2006 and were to be returnable not before 7 February 2007 so that the Respondents’ application to set the subpoenas aside, which it should be noted has been made orally only, could be determined at a hearing set down for 6 February 2007. 

10. On 11 December 2006 two further subpoenas were sent to the solicitors for the Respondents, which were said to be in substitution for the two subpoenas previously issued in respect of L39, the application of Inspector Smith. 

11. The two subpoenas first issued in respect of L39 are attachments 1 and 2 respectively to the Respondents’ submissions.  The subpoena issued in L42 is attachment 3 to that document.  The two substitute subpoenas in L39 are attachments 4 and 5. 

12. The application was heard on 6 February 2007 when both sides appeared by senior counsel.  A program was put in place to enable further written submissions to take place by 16 February 2007.  Although no formal order was made, it is accepted by all parties that no steps will be made to enforce the subpoenas pending the Court's decision on this interim matter. 

13. It is also appropriate to note the steps taken by the parties themselves in these two proceedings other than the steps taken in relation to the subpoenas themselves. 

LNG 42 of 2006

1. The application in L42 was filed on 31 October 2006 and supported by an affidavit, sworn and filed the same day, of Inspector Dennington.  On 14 November 2006 the named Respondents in L42, Mr Gregory Prescott and Mr Michael Hibberd, filed a response in which they sought orders that the application brought by Inspector Dennington be dismissed.  At paragraph 4 of the response it was stated that:

   “The basis for the orders sought are set out in the accompanying Affidavit of Michael David Hibberd sworn 14 November 2006.”

   At paragraph 5 of the response it was stated that:

   “The Respondents reserve their right to seek to amend the orders sought and/or to file further affidavits following an inspection of the documents produced to and held by the Office of Workplace Standards and/or upon agreement being reached with the

   
   

   Office of Workplace Standards in relation to any alleged underpayments pursuant to the Award.”

2. As foreshadowed in the response, Mr Michael Hibberd swore an affidavit on 14 November 2006 which stated at paragraph 1:

   “I am authorised to make this Affidavit on behalf of Gregory Prescott and myself.”

   The affidavit went on to detail in 31 numbered paragraphs and five exhibits a full history of matters relevant to the L42 Respondents’ defence. 

3. On 16 November 2006 L42 came before the Court and by consent I ordered that the proceeding be adjourned for further directions on

   
   

   19 December 2006. 

4. In the ultimate, the matter was brought forward to 8 December 2006 when the issue of subpoenas was dealt with in both L42 and L39. 

LNG 39 of 2006

1. The application in L39 was filed on 17 October 2006.  It was supported by an affidavit sworn by Inspector Smith. 

2. On 31 October 2006 the third Respondent, Ms Jocelyn Maree Berechree, filed a response in which she sought, inter alia, that the application in L39 be dismissed and she asserted in paragraph 3 of:

   “The basis for the orders sought is set out in the accompanying affidavit of Jocelyn Maree Berechree.”

   That affidavit was sworn and filed on 31 December 2006 and traversed Inspector Smith’s affidavit in terms.  It ran to 17 paragraphs and set out the factual basis upon which Ms Berechree denied the allegations made against her. 

3. Also on 31 October 2006 in L39 the First and Second Respondents, Granada Tavern and Mr Michael Hibberd filed their response.  Relevantly, the response stated at paragraph 3 of the final orders sought:

   “The basis for the orders sought is set out in the accompanying affidavit of Michael David Hibberd.”

   That affidavit was sworn and filed on 31 October 2006 and runs to 54 numbered paragraphs together with 7 annexures.  Likewise, it sets out in an extended form the bases upon which the application is resisted. 

4. On 16 November 2006 L39 was the subject of orders made by me for the filing of further affidavits by the parties and for trial in April 2007.  Although the orders were not made by consent, all parties were legally represented and no objection was taken to the ordering of such affidavit material. 

5. L39 came before the Court on 8 December 2006 and was the subject of orders which have effectively brought the matter where it is now (see paragraphs 8 and 17 above). 

L39 of 2006 and L42 of 2006

1. In the application to set aside subpoenas the Respondents made a number of submissions which fall for determination as follows:

   a)Whether the Respondents as parties exposed to the risk of a civil penalty could be required to disclose information or produce documents which may assist in establishing their liability to such penalty;

   b)Whether the subpoenas should be set aside as an abuse of process because of (a) or for some other reason;

   c)Whether each of the subpoena were oppressive on their face;

   d)Whether the application in L42 should be set aside as oppressive "on the basis of its lack of legitimate forensic purpose, its width and the unduly onerous burden it imposes on the Respondents.”

   e)Whether the Respondents should be required to furnish affidavits prior to the conclusion of the Applicants’ case in any event; 

   f)Whether the affidavits filed by Mr Michael David Hibberd should be permitted to be withdrawn and the Applicants should be prohibited from relying upon any part of those affidavits or information or materials contained in them;

   g)Whether the provision of the affidavits sworn by Mr Hibberd should or should not be regarded as an act of waiver of the privilege against exposure to a penalty, given the ostensible requirements of the Federal Magistrates Court Rules 2001, in particular r.4.03 and r.4.05. 

2. It should be noted that at the hearing before the Court senior counsel for the Applicants confirmed that the subpoenas, being attachment 1 and 2 to the application to set aside subpoenas (in proceeding L39), were no longer pressed.  It is therefore common cause that only attachment 3 (in proceeding L42) and attachments 4 and 5 (in proceedings L39) are presently of any moment. 

The privilege against self‑exposure to a civil penalty

1. All parties agreed that the common law position was that a party to litigation ought not be compelled to provide evidence against himself or herself which may be used to expose them to a penalty

   
   

   (see Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat & Livestock Corporation (1979) 42 FLR 204 (“Refrigerated Express Lines”) per Deane J; and Australian Competition & Consumer Commission v J McPhee & Son (Australia) Pty Limited (1997) 77 FCR 217 (“McPhee”) per Heerey J, who adopted and applied the observations of the High Court of Australia in Reid v Howard (No. 2) (1995) 184 CLR 1 (“Reid”)).

2. In Reid, as Heerey J stated at page 219 in McPhee, the High Court confirmed the absolute nature of the privilege against incrimination; and he also at page 220 found that no distinction could be drawn between the privilege against exposure to a penalty rather than the privilege against self-incrimination. 

3. Nonetheless, that common law position has plainly been altered, at least to an extent, by the terms of s.187 of the Evidence Act 1995 (Cth) (“the Evidence Act”) which provides that:

   “(1)This section applies if, under a law of the Commonwealth or the Australian Capital Territory or in a proceeding in a federal court or an ACT court, a body corporate is required to:

   (a)     answer a question or give information; or

   (b)     produce a document or any other thing; or

   (c) do any act whatever.

   (2)The body corporate is not entitled to refuse or fail to comply with the requirement on the ground that answering the question, giving the information, producing the document or other thing or doing that other act, as the case may be, might tend to incriminate the body or make the body liable to a penalty.”

4. The real dispute between the parties about this issue as it emerged during oral submissions concerns the way in which s.187 of the Evidence Act interrelates with the common law privilege against exposure to a penalty in circumstances where the corporation is a proprietary limited corporation.

5. Counsel for the Respondents referred to the annotation to Stephen Odgers' Uniform Evidence Law, seventh edition, paragraph 1.5.340 and the commentary therein on s.187 in this regard. That commentary refers by annotation to Environmental Protection Authority v Caltex Refining Co Pty ltd (1993) 178 CLR 477 (“Caltex”) in which the High Court by a majority of four to three found that a corporation was not entitled to claim privilege against self‑incrimination. The annotation went on to say:

   “Practical questions relating to the protection of an individual's privilege in the context of small corporate entities (which may have only one director) have been considered in a number of cases.”

   In fact the cases referred to are only two in number, and one of them,

   
   R v Ronen

   (2004) 62 NSWCCA 67 (“Ronen”) is not available on

Microsoft Corp v CX Computer Pty Ltd

1. In the other case, Microsoft Corp v CX Computer Pty Ltd (2002) 116 FCR 372 (“Microsoft”), the issues before the Court were somewhat factually different to those in this case. First, Lindgren J found that decisions such as Reid and McPhee were distinguishable because:

   “…neither was concerned with the question of the giving of discovery in a proceeding such as the present one, which is not a proceeding for the imposition of a criminal or civil penalty.”

   
   

   [at 39].

   Further, that case had advanced only to the point of the provision of a list of documents, not the actual production of documents. 

2. Critically, also, Lindgren J found that there were two other shareholders in the Respondent company who could give discovery other than the person, Grassia, the sixth Respondent, who had taken the objection. 

3. Likewise, the decision of the High Court in Caltex, in which the High Court held by a bare majority that the privilege against self-incrimination did not apply to corporations, was not a case in which the circumstances with which the Court is concerned here arose.  None of the judgments given in Caltex dealt in terms with circumstances where a corporation was a proprietary limited corporation in which there might be little distinction in practical terms between an individual or two individuals and the corporation itself. 

4. Necessarily, Caltex did not consider the terms of s.187 of the Evidence Act. I note, however, the following passage from the reasoning of Lindgren J in Microsoft at [32]:

   “One person, such as Natcomp cannot assert the privilege against self‑incrimination on the ground that the giving of discovery or compliance with a notice to produce tends to incriminate another person (such as Grassia) - Rochford v Trade Practices Commission (1982) 153 CLR 134 at 145 per Mason CJ (with whom Wilson J agreed), at 150 per Mason CJ; Caltex, at 549 per McHugh J; Abbco, at 116 per Burchett J; Bond v Tuohy (1995) 56 FCR 92 at 99 to 100 (Ryan J) - nor can Grassia complain about the giving of discovery or responding to the notice to produce by Natcomp on the ground that he might tend to be incriminated as a result, because this is not self‑incrimination (see Caltex at 490 to 493 per Mason CJ and Toohey J, at 548 to 549 per McHugh J; Garvin v Domus Publishing Ltd (1989) Ch 335 at 348 (Walton J).  Accordingly, the submission here, insofar as it relates to Natcomp as a party, must be, and is, that the giving of discovery and compliance with the notice to produce by Natcomp will require Grassia to tend to incriminate himself.”

5. It is arguably implicit from Lindgren J's subsequent discussion of Natcomp's obligations, and the consideration that his Honour gave to an affidavit of documents being sworn by some person other than Grassia, that his Honour may have accepted that s.187 of the Evidence Act could not oblige Grassia to give discovery, or produce documents, if he had been the only shareholder. Nonetheless, those were not the facts, and Lindgren J did not make any express finding to that effect.

R v Ronen

1. The other case referred to by Odgers is Ronen.  Although not on and described by Odgers as unreported, it is reported as R v Ronen & Anor (2005) 62 NSWLR 707. The NSW Court of Criminal Appeal considered in that case issues markedly similar to those that arise here. There was, however, no consideration of s.187 of the Evidence Act. Although the offences with which the case was concerned appear to have involved alleged contravention of federal laws, the case was self-evidently being heard in the Supreme Court of New South Wales. Given that s.187 of the Evidence Act was well and truly in place by the time this decision was handed down, I would infer from the absence of reference to it that it was of no relevance. The Court's references to the privilege against self-incrimination proceeded on the basis of the decision of the High Court in Caltex and not otherwise. 

2. The facts and judgment, however, of the case are of considerable assistance in addressing the issues raised here. 

1. Three persons were charged with offences under the Crimes Act 1914 (Cth) of conspiracy to defraud the Commonwealth of income tax. Each was the sole director and secretary of a company, and two were the only directors of another company and one of those two persons was that company's secretary.

2. A subpoena was served by the Crown addressed to the proper officer of each of those four companies to produce all payroll records for a stated period.  No person other than the accused had been authorised by any of the companies to speak on its behalf or to authorise another person to do so; but the companies, according to the evidence, had a payroll clerk who knew where the payroll records were then located, and also had a chief financial officer.  Objection was taken not to the form of subpoenas but the accused applied to set them aside as being oppressive and/or an abuse of process because they impinged upon their privilege against self-incrimination. 

3. At first instance, Whealy J had delivered judgment (R v Ronen (2004) NSWSC 1282) that the subpoenas should be complied with.

4. While much of the decision of Spigelman CJ, who gave the leading judgment, was concerned with the factual background and the way in which it was established that there were persons other than the accused who were in a position to answer the subpoenas, a number of matters in his Honour's decision are of direct relevance here. 

5. I should interpolate that although the subpoenas addressed to the corporation in this instance are in fact addressed to one of the Respondents, it is clear from the response of the Respondents, earlier referred to in paragraph 5 above, that it was understood to refer to the corporation. 

6. For reasons to which I will come, the subpoena in that form is, in my view, oppressive.  But, as was the case in Ronen, I will assume that this matter should proceed on the basis that the relevant subpoena was addressed to the corporation.  As Mason P observed at page 726 at [94]:

   “The case was fought and in this court on the basis that the subpoenas are addressed to the corporations.  Doubtless, fresh subpoenas could issue if any point were to be taken.”

7. The contending positions of the parties were summarised by

   
   

   Spigelman CJ at page 719 at [46] to [50]:

   “46.  To summarise the principal thrust of the appellants' submissions:  the service of a subpoena after an indictment has been presented in a criminal trial which requires an accused to do something is oppressive. 

   47.  The crown submits that the subpoenas in the present case were each addressed only to the corporation.  It submits that no subpoena requires an accused to do anything.  Alternatively, it submits that even if an accused were to act on behalf of a corporate entity, either directly or indirectly, complying with the subpoenas did not involve any derogation of a privilege to which the accused was entitled.

   48.  If any accused performs an act relating to the subpoena, that would not be, the crown submits, an "incident"  It is an "incident" of the fact that the accused chose to conduct business and take up office in a corporate entity.  The subpoena does not require any accused to do anything.

   49.  The crown further submits that the privilege cannot be relied upon as a ground to set a subpoena aside.  A subpoena has the effect that documents are produced to the court.  No question of incrimination arises by the act of production.  Upon an application for access, however, such an issue may be raised.  The issue would not arise here because corporations do not themselves have a privilege. 

   50.  In reply to this submission, the appellants contend that the act of production to the court, assuming that that was based on some earlier act by one of the accused, constitutes sufficient oppression.”

8. Having referred to authority, predominantly in the United States, his Honour continued at [66] to [68] to consider the oppression and/or the abuse of process issues.  It should be noted that some of the authorities to which the Chief Justice referred were cases in which what were described as one‑person companies were nonetheless required to comply with summonses (see [61] and [62]).  At [66] Spigelman CJ said:

   “66.  There is much to be said for the proposition that if the subpoenas do in fact require the accused to perform some act, then the subpoenas should be aside as oppressive and/or an abuse of process.

   67.  The High Court has recently emphasised the accusatorial nature of a criminal trial, in which the prosecution bears the onus of proving the guilt of an accused beyond reasonable doubt and in which the prosecution must put its case fully and fairly before the accused is called on. [Authorities omitted]  This fundamental characteristic of a criminal trial does, I am inclined to believe, suggest that, absent statutory authority, a court should not make any order which has the effect that an accused against whom an indictment has been presented must do something calculated to assist the preparational presentation of the crown case.  However, on the facts, it is not necessary to express a concluded view on this matter.”

9. It should be noted that while that case was concerned with a criminal prosecution after indictment, in my opinion that is relevantly the situation here.  Proceedings for the recovery of the civil penalty have been issued, and that is, to my way of thinking, a relevantly identical situation. 

10. It should also be noted at this stage that although there are differences between the privilege against self-incrimination and the privilege against exposure to a civil penalty, they are not in my view of any moment in considering the questions that arise here. 

11. His Honour the Chief Justice went on to find that the findings of Whealy J that each company was physically able to produce the documents and could do so without any act by an accused was one that was "a finding of fact with which this Court should not interfere" - see at [84].

12. However, his Honour also relevantly said at [72]:

    “It is not necessary, whenever a subpoena is issued, for a company to give anyone express authority to answer the subpoena.  The company is obliged to answer the subpoena.  If a director or other person cannot or will not act, the company must still comply.  Even in the absence of implicit authority the obligation upon the company to comply with the subpoena confers such authority as is required, as a matter of necessity, on those persons in the company who can ensure compliance.”

13. At [79] his Honour continued:

    “Whether the position is different in a one‑person company need not be decided.  In such a case it may be necessary for the court to appoint a receiver for this specific purpose.”

14. The Chief Justice, as I have said, made no reference to s.187 of the Evidence Act, or indeed of the identical provision in the New South Wales Evidence Act 1995.  The only reference to the lack of privilege on the part of a corporation is that at paragraph [49], which was at least arguably no more than a summary of the Crown's submissions. 

15. Nonetheless , it is clear that the Chief Justice was prepared to allow the subpoenas to stand, and was not dissuaded by the sort of arguments that are in effect being advanced by the Respondents in the present applications. 

16. Mason P, who gave the second judgment of the Court, likewise did not refer to the statutory evidentiary scheme.  At [97] his Honour said:

    “In the present case, the corporations have no privilege against self‑incrimination (Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477) nor can they invoke such privilege on behalf of another.  And no claim has been made or evidence led to suggest that any or every proper officer would make a testimonial self‑incrimination by collecting and producing the documents and/or informing the court about searches and inquiries made.”

17. His Honour continued at [106] relevantly:

    “If, and it is a big if, the appellants need to appoint a "proper officer" to cause the subpoenas to be answered (whether or not documents are available to be produced), and if the appellants chose not to do so, in consequence of which the corporations disobey the subpoena, so be it.  The subpoenas are not an abuse of process on this account.”

18. His Honour continued at [109]:

    “Let it be assumed (contrary to the findings of Whealy J) that the appellants were the only "proper officers" of their respective corporations in relation to the documents sought to be produced to the court.  It does not follow that the issue of subpoenas was oppressive as regards the appellants.  On the assumption made, the appellants are presented with the option of appointing a proper officer to cause the subpoena to be answered.  This step would involve no incriminatory admission.  Nor, in my view, would it involve a step that impinged upon the appellants' right to put the crown to proof of guilt without requiring them to assist in the process.  It stems from their antecedent relationship with corporations that, in all probability, they brought into being. 

    It is an aspect of their continuing duties as officers of the corporations (if they choose to remain as such) to ensure that the corporations obey the corporate legal obligations.  If those duties are burdensome or inappropriate, the respondents can step aside from a managerial role.  It is not oppressive to offer them this choice, or some milder choice such as the appointment of a "proper officer" (if there is presently no such officer who does not fear self‑incrimination).”

19. Having referred to Braswell v United States (1988) 487 US 99 and observed that the same principles apply under Australian law as a result of Caltex, his Honour continued at [112]:

    “If it were to be shown to be the case (and it has not been thus far) that there is no‑one with custody or possession of the records who could lawfully answer the call of the subpoena on the corporations' behalf without risk of testimonial self‑incrimination, then the corporations must still take steps to comply.  This many mean the appointment of a receiver.  Or it may mean that a "proper officer" with nothing to fear by way of self-incrimination has to be appointed.”

20. At [114] his Honour concluded:

    “At the end of the day, the oppression argument is an attempt by the appellants to frustrate the subpoenas by suggesting that they trench upon the appellants' rights.  That is, to shift the proper focus of inquiry.  The corporations are not free to select an individual to be their proper officer ‘...who because he fears self‑incrimination may thus secure for the corporation the benefits of a privilege it does not have. ‘Such a result would effectively permit the corporation to assert on its own behalf the personal privilege of its individual agents.” (United States v Kordel 397 US 1 (1969) at 8).”

    Kirby J simply agreed in short form with the reasons given by Spigelman CJ and Mason P. 

21. While Ronen is not directly on point, having a number of differences, as I have observed, from the particular circumstances here, it seems to me that the reasoning of the Court of Criminal Appeal of New South Wales in that case is strongly favourable to the position contended for by the Applicants. 

22. Moreover, in this case, the Applicants have the benefit not just of the reasoning of the High Court in Caltex but the express terms of s.187 of the Evidence Act. I am of the view that the Commonwealth Evidence Act means what it says. I think that to construe the legislation in the way contended for by counsel for the Respondents would be to rob s.187 of its ordinary meaning.

23. For the reasons earlier described, I do not think that the decision of Lindgren J in Microsoft is on point, save insofar as it supports the production of documents by persons other than the Second and Third Respondents’. 

24. Accordingly, I reject the Respondents’ submission that the corporate Respondent should not be required to respond to the subpoena. Section 187 of the Evidence Act removes its privilege against self-exposure to the imposition of a penalty.

Abuse of process

1. There still remains to be considered however, as or which concerns the corporate Respondent, the question of abuse of process arising of or from the present endeavour to use, in effect, the curial process after the Applicants have exhausted, it would appear, their researches by issuing notices under s.169 of the Workplace Relations Act. 

2. The headnote to Caltex suggests that whereas the majority of the High Court found favourably for the prosecuting authority in that case because the corporation Caltex did not have the privilege against self-incrimination, Brennan J sided with the dissenting minority in relation to whether or not the Environment Protection Authority should be allowed to use the curial process to obtain documentation, having exhausted the statutory mechanisms open to it. 

3. It should, however, be noted that the basis upon which Brennan J who, effectively, constituted the fourth person of the majority in each of these aspects of the decision arrived at that conclusion was the privilege against exposure to a civil penalty. One cannot say whether his Honour would have concluded the same way if s.187 of the Evidence Act had been in place at that time. That does not mean of course that Brennan J's decision (and the decision of the majority in Caltex on this point) is not binding on me, absent statutory intervention, but the fact is that there has been such statutory intervention. 

4. In my view, the issuing of the subpoenas is not rendered oppressive merely because of the existence of the power in the Office of Workplace Services to issue notices to produce documents pursuant to s.169(2)(c) of the Workplace Relations Act. Section 187 of the Evidence Act is not deprived of operation because of the inspector’s powers to issue such notices.

5. There is, however, one aspect of the Applicants’ submissions in this regard that I do find as oppressive.  It was suggested by senior counsel for the Applicants that one benefit that the Applicants were seeking to obtain by the issue of the subpoenas was the capacity to cross‑examine those who produced the documents. 

6. I regard any such exercise that might involve any of the accused as oppressive and would not be prepared to permit it.  That is because while I share unreservedly the view of Mason P that corporations ought not be allowed to assert on their own behalf the personal privilege of individual agents, equally I share the view of Spigelman CJ that, absent statutory intervention, it is inherently offensive to require a person accused of a crime (or in this case a person facing a proceeding for the imposition of a civil penalty upon them) to do things themselves that would cause the result contrary to their interests, whether incrimination or the imposition of a penalty, as the case may be, to be achieved. 

7. For these reasons, in my opinion the corporate Respondent in L39 is precluded from availing itself from any privilege against self-exposure to a civil penalty. 

8. If it be required that the documents be produced by a person other than the natural person, the Second Respondent, in L39, then not only does the evidence as far as it goes strongly suggest that there are persons properly available to do so, but if that not be the case then I would be prepared to appoint a receiver for that purpose.  I strongly suspect that the parties will be able to resolve this aspect of the matter without undue difficulty. 

The position of the natural person Respondents in L39 and L42

1. The Applicants have approached this case always on the footing that the privilege against self‑exposure to a civil penalty applies to the natural persons involved as Respondents.  There are, however, a number of bases upon which it is asserted that they should nonetheless be compelled to comply with the subpoenas. 

The statutory obligation to keep and maintain certain employee records

1. The Applicants submit that Part 19 of the Workplace Relations Regulations 2006 (“the Regulations”) and more particularly reg.19.11 and 19.22, require the maintenance of certain records. The Regulations themselves are made pursuant to s.836 of the Workplace Relations Act.

2. It is true of course that reg.19.11 prescribes certain matters which must be contained within records in relation to pay; and that reg.19.22 requires the issue to an employee of a written payslip in which certain matters contained in reg.19.23 must be set out. 

3. In paragraph 10 of their written submissions the Applicants submitted that:

   “There is a statutory obligation to keep and maintain certain employee records.”

   In fact that obligation is contained in reg.19.4. 

4. The judgment of Mason CJ and Toohey J in Caltex referred to what is described as the required records doctrine and at page 505 cited, amongst other cases, Shapiro v United States (1948) 335 US 1 at 33 (“Shapiro”), in which it was asserted:

   “The doctrine precluded both corporations and individuals for invoking the privilege in relation to "records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation and the enforcement of restrictions validly established”. 

5. Mason CJ and Toohey J went on to say, however, we see no occasion to express an opinion on this question in the circumstances of this case.” 

6. I was provided with a copy of Shapiro and further submissions in relation thereto by both parties.  

7. Both counsel have submitted that there is no express authority adopting the required records doctrine in Australia.  The passage earlier referred to in the joint judgment of Mason CJ and Toohey J in Caltex is the only reference to which I have been alerted in which the doctrine is discussed. 

8. In Shapiro the Supreme Court of the United States examined immediately after World War II the effect of statutory regulations apparently introduced immediately after Pearl Harbour. 

9. The decision was by five to four, with three dissenting judgments expressing the views of the four dissenters. 

10. The Supreme Court of the United States in that instance was concerned to consider the operation of the statute which conflicted with the constitutional entitlement enshrined in the Fifth Amendment.  There is no such constitutional provision in Australia. 

11. In my opinion it would be a very bold step indeed for this Court, as the inferior Federal Court, to adopt United States jurisprudence that would have the effect of denying not only to corporations but to individuals the privilege against self-incrimination and/or the privilege against self-exposure to a certain imposition of a civil penalty in all cases where Australian statutes require the retention of documents for public purposes.  That would be the net effect of the adoption of the reasons of the majority in Shapiro. 

12. For my own part, I must confess that I find the reasoning of the majority in Shapiro, and the authorities in American cases referred to therein, persuasive.  If a statute requires documents to be maintained for an appropriate public purpose, then it makes sense that those documents be made available to relevant investigative or prosecutory authorities, even if the net effect is to impact upon the common law privileges against self-incrimination. 

13. Nonetheless, given the consistent application in this country of those common law privileges, and the strong statements made by Deane J in Refrigerated Express Lines and the High Court in Reid in relation thereto, I am not prepared to apply the reasoning of the Supreme Court of the United States in Shapiro and therefore will not rule that the fact that the Respondents are required to keep certain documents necessarily compels their production to the Applicants. 

Waiver

1. The Applicants submitted that the natural person the Second Respondent in L39 and the natural persons Respondents in L42 are precluded from availing themselves of any privilege against self‑exposure to a civil penalty by voluntary compliance with the rules of this Court, namely by voluntarily filing sworn affidavit material.  Although counsel for the Applicants did not make the submission, it seems to me that waiver applies to the corporate Respondent in L39 also, as Mr Hibberd’s affidavit in L39 was clearly filed on behalf of both Respondents. 

1. I have already referred to the affidavit material earlier in these reasons for decision. 

2. The Applicants relied upon Birrell v Australian National Airlines Commission (1984) 55 ALR 211 (“Birrell”), Wigmore on Evidence (McNaughton Revision, 1961) and Bridal Fashions Pty Ltd v Comptroller General of Customs (1996) 135 FLR 100 (“Bridal Fashions”) in support of this contention. 

3. In Birrell, Gray J held at page 213:

   “The applicant concedes, and it is well established, that in civil proceedings for the recovery of the penalty, the court will not normally order a respondent to make discovery of documents, on the ground that to do so may be to compel such a respondent to expose itself to the penalty concerned.”

   (His Honour set out a number of authorities to that effect). 

4. His Honour went on to examine the circumstance where:

   “In ordinary civil proceedings, not involving a claim for a penalty, a party obliged to give discovery is entitled to claim privilege in respect of a document or documents, the production of which would involve self-incrimination or the risk of exposure to a penalty.”

   His Honour referred to the judgment of Deane J in Refrigerated Express Lines in this regard. 

5. His Honour disposed of the argument advanced by the Applicant that, because the relief sought in that case included relief in addition to the recovery of a penalty, this was a point of distinction.  His Honour then went on to consider the Applicant's alternative argument on the question of waiver.  His Honour referred to Wigmore and concluded at page 216:

   “In any event, it is well established that the privilege against self‑incrimination itself can be waived by a person otherwise to claim it.  Wigmore on Evidence (McNaughton Revision, 1961) in paragraph 2275 said:

   It has never been doubted that the privilege against self‑incrimination, like all privileges, is waivable.  There are two possible ways of waiving:

   (a) by contract or other binding pledge before trial; or

   (b) by voluntarily testifying in the case.”

6. On the facts of the case, it emerged that orders had been made for discovery by consent.  His Honour found at page 217 that:

   “The consent of each party to these orders and directions constituted a contract cannot be doubted.  There was involved the agreement that each party would submit to the orders and directions proposed and would consent to them being made and given by the court.  Consideration lay in the promise of each party to be bound.  The respondent did not place before me any evidence which suggested mistake or inadvertence on its part or the part of its legal advisers, or any other element which might lead to the conclusion that no contract existed.  It is my view that the respondent must be bound by the contract which it has made.”

7. Having found that the contract existed, his Honour went on to say (page 217, line 29) that:

   “When a party to litigation consents to an order for discovery, that party is not normally taken to have waived any privilege which might attach to any documents; part of the process of discovery is the claim of any privilege in an affidavit.  For instance, the respondent could not be regarded as having waived its right to claim privilege in respect of communications between itself and its legal advisers for the purpose of the litigation itself, merely by consenting to an order for discovery.  In my view, it could not be considered to have waived any privilege attaching to any particular document on the ground that the disclosure of such document might tend to expose it to the penalty sought. 

   Mr Ginnane argued that waiver could only be by irrevocable step inconsistent with the presence of the privilege.  Without deciding whether such a step is necessary for a waiver, I am of the view that entry into a binding contract of the kind which I have held to exist constitutes such an irrevocable step to the extent specified above.  There can be no doubt that an act performed without any intention of waiving privilege may be effective to waive the privilege. (Authorities omitted.)”

8. His Honour went on to conclude that the Respondent must file and serve a list of documents verified by affidavit, but that:

   “The respondent remains at liberty to claim any privilege open to it in respect of any specific document.”

   It is not entirely clear whether, in the light of the earlier passages, his Honour was referring only to legal professional privilege.  My reading of the decision is that his Honour had formed the view that the Respondent had waived its privilege against the disclosure of documentation on the grounds of self‑exposure to the risk of imposition of a penalty. 

9. The point said to arise from Bridal Fashions is that admissions would constitute waiver.  It was submitted that the Hibberd affidavits in L39 and L42 contained admissions.  While Bridal Fashions raised issues to an extent analogous with those in this proceeding, there are a number of important points of difference.  The fact that the Hibberd affidavits contain admissions does not of itself persuade me that those affidavits constitute a waiver of the privilege against self-incrimination. 

10. More importantly it was submitted that since the Respondents were legally represented at the time of filing their affidavits and response, they had in truth waived the privilege that they otherwise would have had. 

11. Counsel for the Applicants submitted that the Respondents had done no more than comply with the requirements of the Court's rules.  He submitted that in any event the waiver was not established.  Even if the material were subpoenaed, the Respondents had not waived their privilege to object to the production of the documents to the Applicant. 

12. It is fair to say that the submissions made on behalf of the parties were made, so far as waiver is concerned, in relatively short form. 

13. Waiver is, however, in my view, a complex issue.  If nothing else, the judgments issued by the High Court in the matter of Commonwealth v Verwayen (Verwayen’s/Voyager case) (1990) 170 CLR 394 (“Verwayen”) make this clear.

Commonwealth v Verwayen

1. In Verwayen, Mason CJ observed, at page 406:

   “As often as not, "waiver" is used to describe the result of the application of various principles rather than to designate a particular legal concept or doctrine.  The consequence is that the expression "waiver" has been the subject of robust criticism ... This is because waiver is an imprecise term capable of describing different legal concepts, notably election and estoppel.”

2. At page 422 in Verwayen, Brennan J said:

   “Waiver is a term of shifting meaning.  Lord Wright in Smyth and Co v Bailey and Co said:

   The word waiver is a vague term used in may senses (Stroud's Judicial Dictionary lists at list 13.)  It is always necessary to ascertain in what sense and with what restrictions it is used in any particular case.  It is sometimes used in the sense of election as where a person decides between two mutually exclusive rights.  Thus, in the old phrase, he claims in assumpsit and waives the tort. It is also used where a party expressly or impliedly gives up a right to enforce a condition or rely on a right to rescind a contract, or prevents performance, or announces that he will refuse performance, or loses an equitable right by laches.”

3. At page 451 Dawson J said:

   “In argument, the respondent did not draw any clear distinction between waiver and estoppel.  Indeed, authority favours the view that, in the present context, no such distinction can in principle be drawn.  "Waiver" is an imprecise term and is used to describe what is done in a variety of circumstances rather than to assert any particular legal process. However, where it is not used in the sense of election between mutually exclusive alternatives, if it has any identifiable legal consequence, it is generally indistinguishable from estoppel.”

4. Toohey J at page 473 said:

   “Waiver, in the sense used for the purposes of this appeal, may be found in the deliberate act of a defendant not to rely upon a defence available to him. That is not to say that there must be an intention to bring about the consequences of waiver; rather, the conduct from which waiver may be inferred, must be deliberate. Detriment is not an essential attribute of waiver, though it will often be found as a consequence. Within the adjudicative process at any rate, it is enough that the defendant "renounces" a defence which is available to him and which is there for his benefit.”

5. It should be noted that the facts to which Toohey J was referring were that the Commonwealth had done more than merely fail to plead a defence.  The stance actively adopted by the Commonwealth in that case and communicated to the plaintiff was that the Commonwealth was not relying upon the Limitation of Actions Act 1958 (VIC) (“Victorian Limitation Act”) and was not defending the action, save as to the amount of damages to be awarded to Mr Verwayen.

6. At page 481 Gaudron J said:

   “In Craine, Isaacs J. (at p 326) referred to waiver as "a doctrine of some arbitrariness introduced by the law to prevent a (person) in certain circumstances from taking up two inconsistent positions".”

   Her Honour went on to say at page 482:

   “If, in the course of litigation, a person fails to plead a matter, take an available objection or pursue a particular point of law, the matter proceeds on the basis that the point which might have been taken is not in issue. Were it otherwise the conduct of litigation would be unmanageable. Of course, leave may be granted for the point to be raised notwithstanding the failure to take the point at the appropriate time. Generally, leave is granted if the point can be raised without injustice to the other party. That question may depend upon whether disadvantage to the other party can be avoided by adjournment or an appropriate costs order.”

   Her Honour went on to note however that there were other issues that might arise properly for consideration. 

7. McHugh J approached the question of waiver on a more restricted basis than the other Justices in that case.  His Honour said at page 491:

   “Most cases which purport to apply the doctrine of waiver are really cases of contract, estoppel or election.”

   He noted, however, also at page 491:

   “Nevertheless, there are a number of cases in England and Australia which appear to hold that a party may waive a statutory condition conferred for his or her benefit. At least, some of them cannot accurately be categorised as cases of contract, estoppel or election.”

8. And at page 497 McHugh J said:

   “Some of the cases which debar "a person from raising a particular defence to a claim against him", however, stand outside the categories of election, contract and estoppel. They are sui generis. They are cases where a statute has conferred a right on A, subject to the fulfilment of a condition for the benefit of B, and B has waived the condition by taking the next step in the course of procedure without insisting on A fulfilling the condition. In my opinion, the true basis of the decisions in these cases is that, where the existence of a statutory right depends upon the fulfilment of a condition precedent, a person entitled to insist on the fulfilment of that condition may dispense with its compliance unless it is enacted for the benefit of the public, and that person will be held to have waived compliance with the condition if he or she knowingly takes or acquiesces in the taking of a subsequent step in the course of procedure laid down by the statute after the time for the other person to fulfil the condition has passed. These cases are also, to a certain extent, anomalous. They should be strictly confined so as not to conflict with the more established doctrines of election, contract and estoppel.”

9. It will be readily noted of course that Verwayen was very much a case concerned with a particular statutory provision, namely the relevant provisions of the Victorian Limitation Act.

10. The judgment of the High Court was by majority.  The majority of Deane, Dawson, Toohey and Gaudron JJ was a narrow one and Deane J did not address the issue of waiver at all.  His Honour took the view that the resolution of the case lay in the application of the general doctrine of estoppel by conduct (see at page 431). 

11. In the ultimate, I am of the view that what is required for waiver in circumstances such as these is an intentional act on the part of a Respondent inconsistent with the privilege that is now claimed.  The learned authors of Cross on Evidence state at paragraph [25010]:

    “Waiver occurs where the party entitled to privilege performs an act which is inconsistent with the confidence preserved by it.”

12. Those observations are put in the context of legal professional privilege but in my view are of relevance here. 

13. The learned authors continue at paragraph [25020]:

    “Waiver of a right requires an intentional act with knowledge, and the assessment of facts said to constitute waiver must be made by an examination of conduct in position of the person possessing the right.”

14. The authors quote Craine v Colonial Mutual Fire Insurance Co Limited (1920) 28 CLR 305 (“Craine”). 

15. In support of this proposition the relevant extract of that judgment in Craine at page 326 is:

    “First, “some distinct act ought to be done to constitute a waiver” (authorities omitted); next, it must be “intentional,” that is, such as either expressly or by imputation of law indicates intention to treat the matter as if the condition did not exist or as if the forfeiture or breach of condition had not occurred; and, lastly, it must be “with knowledge,” an essential supported by many authorities, from Pennant’s case down to Matthews v Smallwood (1910) 1 Ch., 777.”

16. The Respondents were legally represented at the time that they filed their response and affidavits.  They know the character of the cases they faced.  It was open to them to file a response in which objection was taken to the filing of any affidavit material and an affidavit in which the privilege now asserted could have been put forward. 

17. It is not necessary for a party to understand the effects of waiver for waiver to be held to have occurred.  Indeed a number of cases show that the party found to have waived privilege (see for example

    
    Great Atlantic Insurance Co v Home Insurance Co

    (1981) 1 WLR 529) bitterly regretted their error.

18. It is not possible to approach the issue of waiver in this case on the basis of election, because, leaving aside only the fact that doing something is obviously not the same as not doing it, in making the decision to put on the affidavit material the Respondents did not choose between two enforceable legal positions. 

19. It is equally impossible to proceed by analogy with estoppel, because, even if the filing of the response and affidavits gave rise to an assumption on the part of the Applicants, there has been no detriment to the Applicants arising therefrom, or at least none that would be remediable by an appropriate order for costs (Verwayen makes it clear that in circumstances where estoppel is made out equity will do as much as is required but no more than is necessary to put a party in the position in which they would have been had the assumption not been created). 

20. I accept of course that the principles, as it were, of the exemption from self-incrimination and the exemption from self-exposure to a penalty are important and, to quote counsel for the Respondents, "are alive and well in Australia today". 

21. Nonetheless, a clearly deliberate act such as the filing of affidavit material in these circumstances, in my view, unequivocally waives the right to object to the subpoenas that have been served.  This was compounded, in L39 by the failure of the Respondents’ lawyers to raise objection to the filing and serving of further affidavits when the matter was before the Court on 16 November 2006. 

22. I respectfully adopt what was said by Gray J in Birrell in relation to the extent of the waiver.  The Respondents clearly have not waived any claim to legal professional privilege.  There may be other grounds of objection as yet unformulated which may properly be open to the Respondents.  But in the facts of this particular case, I do not think that it is open to the Respondents to press, in light of their response in the affidavit materials, the privilege against self-exposure to a civil penalty.  They have waived it. 

The width of the subpoenas

1. As noted earlier the Court is now concerned only with attachments 3, 4 and 5 to the Respondents’ submissions. 

The subpoena in L42 (attachment 3 to the Respondents subpoenas)

1. The scope of dispute between the parties emerges from an examination of the affidavit material filed.  The affidavit filed by Inspector Dennington on 31 October 2006 relevantly deposes that the Inspector has compiled a list of all employees of The Club Hotel reviewed for the purposes of underpayment and breaches of the award.  A list being attachment marked “F” shows the total underpayment owing to employees at the date of the affidavit. 

2. The Inspector’s affidavit went on at paragraph 12 to say:

   “Given the notices to produce have not been complied with in full, and given the gaps in the material reviewed, the resulting calculations made by me are incomplete and it is likely that a number of underpayments have not yet been identified.  I would therefore seek to make amendments to the Application and file further affidavit material when, and if, the Respondents produce further documents in accordance with their obligations under the notices to produce.”

3. It will be noted that Inspector Dennington had already deposed in her affidavit that:

   “Further investigations by the OWS are being undertaken with respect to the failure by the Respondents to comply with the notices to produce and the matter has been referred to the Commonwealth Director of public prosecutions.”

4. The affidavit filed by Mr Hibberd in response deposes that The Club Hotel is a Respondent to the relevant award. 

5. It goes on to depose that in 2002 The Club Hotel purported to enter into what was described as ‘an Australian Workplace Agreement’ with the then employees of The Club Hotel. 

6. At paragraph 6 Mr Hibberd deposed that:

   “The level applicable to each employee’s wage pursuant to the AWA did not correspond directly with each of the award levels provided in the Award.

   7.    At all material times up to the commencement of the investigation by the Office of Workplace Standards (“OWS”) in June 2006, I have assumed that the provisions of the AWA as referred to above applied.  Since the commencement of the investigation by OWS I have been made aware that legislative provisions relating to the lodgement of AWA’s for Club Hotel employees have not been followed, and as a consequence the AWA’s have not been validly registered.”

7. The affidavit goes on to put in issue a number of matters as to the proper classification of employees under the award and disputes a number of particular matters relating to some but not all of the employees referred to in annexure F to Inspector Dennington’s affidavit. 

8. Counsel for the Respondents asserted that the subpoena in L42 had no legitimate forensic purpose. 

9. The ambit of the proceeding as it presently stands is whether or not the Respondents (in effect The Club Hotel) in L42 have breached the award by underpaying the employees referred to in annexure F to Inspector Dennington’s affidavit.  In my opinion, the subpoena can properly be pressed in respect to matters sufficiently connected with that controversy. 

10. It is readily apparent that the terms of paragraphs 1, 2 and 3 of the subpoena in L42 are far too broad.  In my view if Inspector Dennington wishes to bring further proceedings once the Respondents’ obligations pursuant to the notice to produce have been enforced then that is a matter for her.  I am not however prepared to compel the production of all wages records, time records and personnel files as the subpoena seeks from 2002 until 2006. 

11. What is in my view permissible is that records relating to the employees the subject of controversy in this proceeding be made available to the Applicant Inspector. 

1. I would be prepared to sanction a subpoena in the terms set out in paragraphs 1 and 2 of the subpoena in L42 provided that it were restricted only to those employees set out in annexure F to Inspector Dennington’s affidavit. 

2. The materials presently filed do not show why the birth date, address and telephone numbers of any of the employees in annexure F to Inspector Dennington’s affidavit are relevant.  I am not presently prepared to sanction a subpoena in those terms.  There will be liberty to apply in case this aspect of the matter becomes significant. 

3. Paragraph 4 of the subpoena in L42 is also too broad.  Given that the Respondents have put in issue the classification of employees, it is in my view appropriate that documents showing the classification of the employees set out in annexure F to Inspector Dennington’s affidavit be produced.  Otherwise, it seems to me that the application in paragraph 4 is too broad. 

4. Paragraph 5 of the subpoena in L42 is in my view appropriate for production subject to the limitation to the employees in annexure F to Inspector Dennington’s affidavit and excluding drafts or proposed contracts or AWA’s offered to employees.  The Court is only concerned with what eventuated, not what may have been in contemplation at one stage or another. 

5. The documents sought in paragraph 6 of the subpoena are far too broad and have in my view the character of a fishing expedition.  I would not order that they be produced. 

6. Given that it is conceded in effect by Mr Hibberd’s affidavit that the AWA to which he refers as having been prepared in November 2002 was never properly registered, it is inappropriate in my view to order that this class of documents contained in paragraph 7 of the subpoena in L42 be produced.  It is my understanding of the state of the law in relation to offset payments that there is in substance no capacity for an employer to offset some common law entitlement against an award entitlement.  The issue of offsets is therefore not likely, at least as I presently see the matter, to be of any significance.  Accordingly I will not order production of the category of documents contained in paragraph 7 of the L42 subpoena. 

The subpoenas in L39 of 2006

1. The two subpoenas in this proceeding are in identical terms, but one was addressed to Mr Hibberd personally and the other was addressed to the company. 

Emily Wills

1. The affidavit of Inspector Smith makes it clear that the proposition that the Respondents in L39 sought unlawfully to compel Ms Wills to sign an AWA is plainly in issue. 

2. The affidavits filed by Mr Hibberd and by Ms Berechree take issue with the assertions made about Ms Wills. 

3. At paragraph 23 of Inspector Smith’s affidavit he deposes that:

   “As a result of Ms Wills refusal to sign the AWA, and her note to management, her hours of work have been significantly reduced.”

4. That assertion is denied in paragraph 33 of Mr Hibberd’s affidavit. 

5. In these circumstances it seems to me that time records relating to Emily Wills for the period of 1 January 2006 to 1 November 2006 should be produced.  “Time records” is not a phrase of any great complexity in my view and is sufficiently intelligible to be applied by the Respondents without undue difficulty. 

6. It is not clear to me that the personnel file of Ms Wills, if there is one, held by the Respondents should be disclosed.  I will not order that that be done. 

Jane Byard

1. The affidavit of Inspector Smith makes it clear that in respect of

   
   

   Ms Byard it is asserted that she has been the subject of duress on the part of the Respondents.  

2. The duress asserted arises out of a conversation between Ms Byard and Ms Berechree at which it is said that Ms Karen Crawford was also present. 

3. The affidavit of Inspector Smith asserts that Ms Byard was employed at The Club Hotel from above 27 August 2002 until 4 October 2006 (paragraph 26).  The affidavit of Mr Hibberd admits that Ms Byard was employed at The Club Hotel (paragraph 42).  The affidavit of Ms Berechree states that she has been manager for both the Granada Tavern and The Club Hotel since December 2005. 

4. Paragraphs 44 – 46 of Mr Hibberd’s affidavit would appear to suggest that, contrary to the impression made by the concession that “Byard was employed at The Club Hotel”, Ms Byard was employed by the First Respondent. 

5. In these circumstances, if these are documents that are capable of resolving this issue they should be produced.  I will hear the parties further in respect of this aspect of the matter. 

Karen Crawford

1. The subpoena is not pressed in respect of Karen Crawford.  I do not accept the submission that this abandonment, and the substitution of the attachments 1 and 2 to the Respondents’ submissions such as to establish, as the Respondents’ additional written submissions assert, an abuse of process. 

2. The scope of the documentation sought in paragraph 4 of the subpoena in L39 in my view is far too broad and is properly characterised as being fishing.  I will not order it. 

3. The document referred to in paragraph 5 of the L39 subpoenas is plainly in my view a document referred to by Mr Hibberd and put in issue by him.  It should be produced. 

Conclusion

1. It will be apparent that while I have not been prepared to sustain these subpoenas in their current form the overall result of this interlocutory dispute is in part at least favourable to the Applicants in that I would order the production of documents in the manner I have set out. 

2. It is clear from the observations of Mason P in Ronen that the Court can properly and should properly sanction the issue of further subpoenas if this be necessary. 

3. I will give the parties a brief opportunity to consider these reasons for judgment and will hear them as to the form of orders that is appropriate to make. 

4. In essence, the parties can either agree that the Respondents provide documents of the character that I have indicated by these reasons for decision are in my view appropriate to be produced, or should the Respondents press the matter, the Applicants can issue further subpoenas consistent with these reasons for judgment. 

5. I will also hear the parties as to the further conduct of these matters. 

I certify that the preceding one hundred and fifty-six (156) paragraphs are a true copy of the reasons for judgment of Burchardt FM 

Associate:  Brooke Evans

Date:  9 March 2007