Stephen Weathered v Balfour Beatty UGL

[2014] FWC 1849

[2014] FWC 1849

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Weathered
v
Balfour Beatty UGL
(U2011/2087)

COMMISSIONER WILSON MELBOURNE, 19 MARCH 2014

Applicant for unfair dismissal remedy - procedural decision - orders to produce.

[1] Mr Stephen Weathered, the Applicant in this matter, by way of an application by his solicitor has sought the issuance by the Commission of two Orders for the Production of Documents. The first of these was filed in the Commission on 17 March 2014 at 11:52 AM and the second was filed on the same day at 1:03 PM.

[2] Following receipt of these Draft Orders and them being brought to my attention I directed the parties to provide written submissions as to whether the Commission should grant the Orders and whether or not the Applicant was prepared to make undertakings to the Commission avoiding further delay to the programmed filing dates for submissions from both parties and as set out in the Further Amended Directions given by me on 17 March 2014, prior to the lodgement of the applicant’s Draft Orders for the production of documents.

[3] I have received and considered the submissions made by both parties.

[4] I have also given consideration to the Commission’s authorities and practices in relation to the issuing of such orders. I take into account the principles set out by Justice Munro to the effect that a subpoena or order must specify with reasonable particularity the documents which are required to be produced; that an order is not to be used for the discovery of documents against a person not liable to make discovery or as a substitute for discovery which should be applied at the proper time; the documents sought must be relevant to an issue legitimately arising in a hearing the matters in dispute 1. The Commission also guards against the oppressive production of documents or where it might be a “fishing expedition” where the request might be “an endeavour not to obtain evidence to support a case, but to discover whether there is a case at all”.2

[5] In relation to those principles, the following has also been held;

“The approach outlined by his Honour has been applied by other members of the Commission in subsequent decisions. I have applied the approach outlined to the determination of the matter before me. In particular I am required to balance on the one hand the reasonableness of the burden imposed on the recipients and of the invasion of private rights, with on the other hand, the public interest in the due administration of justice and ensuring that all material relevant to the issues before me are available to the parties to enable them to advance their respective cases.

The balance between these factors depends upon the circumstances of a particular case. In this context I am conscious that the outcome of these proceedings may have serious consequences for the respondents if the order sought is granted.” 3 (references omitted)

[6] Finally, I take into account the following considered by Commissioner Bissett in the matter of SPI Power Net Pty Ltd v CEPU;

“[19] In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Emergency Transport Technology Pty Ltd Cowdroy J considered the test to be applied in setting aside a subpoena. After considering a number of authorities his Honour found at [13] that:

The correct test to be applied to determine whether a subpoena should be set aside was stated by Beaumont J in Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306; 88 ALR 90 at ALR 103, namely:

(1) Does the material sought have an apparent relevance to the issues in the principal proceedings, that is, is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent? This involves a consideration of the matter from the standpoint of [the issuing party].

(2) Is the subpoena seriously and unfairly burdensome or prejudicial? This is to look at the matter from the point of view of [the party subpoenaed].

[20] SP AusNet also referred me to a decision of the Supreme Court of Victoria in Commissioner of the Australian Federal Police v Magistrates’ Court of Victoria where the principles to be followed in determining if a party is entitled to access documents subject of a subpoena are summarised. I do not replicate those principles here but indicate that they do not conflict with any of the matters outlined above. In any event, I have had regard to the principles outlined in that decision in determining the application for an order to produce in this matter. Even so, care needs to be taken not to approach the assessment of a request for production of documents as an exercise of each document having to receive an appropriate number of ‘ticks’ against a set of listed principles. There is a judgement to be made in balancing of those principles in the above mentioned decision.

[21] SP AusNet also put that, in addition to the above principles, any order should not be so wide as to require the person to whom the order is addressed to make a judgement as to which of the possessed documents are relevant documents and that the order must not be oppressive”. 4

[7] The first of the two Draft Orders is an application for documents to be provided by a Toowoomba truck sales company. There is nothing in the material before me which indicates the firm is related to the Respondent in this matter.

[8] The Applicant seeks provision of the following class of documents “Complete Service History for Mercedes-Benz 4144 vehicle registration 766 KSF”. The Applicant’s submissions in response to my Directions do not elaborate on why the documents are required or their connection to the matter to be arbitrated by the Commission.

[9] For the reasons firstly that there has not been an identification to me as to why the documents are relevant to an issue legitimately arising in the hearing of the Applicant’s matter, and secondly that the truck sales company appears to be unrelated to the Respondent, the application is denied. I note also that it is denied because the documents sought appear to be an endeavour not to obtain evidence to support a case, but to discover whether there is a case at all.

[10] The second of the two Draft Orders is an application for documents from the Respondent. Thirteen classes of documents in all are sought by the Applicant as follows;

“1. SWMS-TL-P001 General Site Access;

2. SWMS-TL-P002 General Transportation – ALL;

3. SWMS-TL-P003 Working in the Yard;

4. SWMS-TL-P005 Working at Laydown Areas;

5. SWMS-TL-P006 Demarcation of Work Areas;

6. SWMS-TL-P007

7. SWMS-TL-P008

8. SWMS-TL-P009

9. SWMS-TL-P013 Safe Operation of a Hiab Truck Load & Unload;

10. SWMS-TL-P018 Safe Loan & Unload – General

11. WI-TL-P002 Handing and Transportation of plant and equipment;

12. WI-TL-P006 Demarcating work area’s and Danger zones;

13. Notes, records, memoranda or other documentation (whether recorded electronically or otherwise) relating to Counselling following or arising from the event (HSSE 16119) being the event the subject of the unfair dismissal.”

[11] The Applicant’s submissions in regard to the production of these documents include;

“In relation to the Form 52 to be served on the employer – the documents referred to therein are twofold:

(a) Some additional Work Instructions and Safe Work Method Statements; and

(b) Records of a Counselling session after the Incident.

Following the Mention, a conference was held with Counsel to obtain some initial advice on evidence. For this purpose we provided Counsel with a copy of the Investigation Report. After Counsel reviewed the Investigation Report, Counsel noted that there were work instructions and safe work method statements referred to in the Investigation Report which had not been provided by the Employer and had not been the subject of a Form 52 on our part. In addition, Counsel noted that it appeared our client had participated in a “Counselling session” with the Employer following the incident and Counsel suggested we seek copies of any notes or records of such Counselling session.”

[12] Having perused the documents filed to date by the Applicant and Respondent, I am not persuaded that document classes 1 – 12 inclusive have relevance to an issue legitimately arising in the hearing. Although it is possible they might have relevance, the connection has not been made either in the documents filed by the parties prior to the Mention Hearing on 17 March 2014 or in the written submissions filed since that Mention Hearing. In addition, on the basis of the documents sought, the material in the file to date, together with the submissions made by the Applicant on 17 March, there is not an apparent connection between those classes of documents and the other factors usually taken into account by the Commission, referred to above, that would ordinarily lend support to the issuing of an order for the production of documents. Accordingly the application for an order requiring the production of those documents is denied.

[13] In relation to class 13, namely the notes, et cetera, relating to counselling in relation to the event that was the subject of the Applicant’s dismissal, I do not see a reasonable particularity within the specified class and consider the request as it is presently framed as an endeavour not to obtain evidence to support the Applicant’s case, but to discover whether there is a case at all. The application made is also so wide as to be at risk of requiring the person to whom the order is addressed to make a judgement as to which of the possessed documents are relevant documents. Accordingly the application for an order requiring the production of documents in class 13 is also denied.

COMMISSIONER

 1   Clerks (Alcoa) Case (1988) Print H2892

 2   Ibid.

 3   Patrick Stevedores Number 2 Pty Ltd, Ross VP, (1998) Print 8680, p 3

 4   [2012] FWA 4350, at [19] - [21]

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