The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.5)
[2013] FCCA 476
•14 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| THE DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE v LINKHILL PTY LTD (No.5) | [2013] FCCA 476 |
| Catch words: PRACTICE AND PROCEDURE – Application in a case – application by respondent to issue subpoena during running of trial – two oral applications for issue of subpoena and direction for mediation – applications dismissed. |
| Legislation: Fair Work Act 2009 (Cth) s.357 Federal Circuit Court of Australia Act 1999 (Cth) s.34 |
| Cases cited: The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.1) [2013] FMCA163 The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.2) [2013] FMCA164 The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.3) [2013] FMCA165 The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.4) [2013] FMCA 182 Linkhill Pty Ltd v Director of Fair Work Building Industry Inspectorate [2013] FCA 389 McIllwain v Ramsey Food Packaging Pty Limited [2005] FCA 1233 ACE Insurance Limited v Trifunovski [2011] 200 FCR 532 ACE Insurance Limited v Trifunovski [2013] FCAFC 3 Broad Spectrum Training Pty Ltd & Ors v Bidding Buzz Limited & Ors [2010] FMCA 932 |
| Applicant: | THE DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE |
| Respondent: | LINKHILL PTY LTD |
| File Number: | (P)MLG 1514 of 2011 |
| Judgment of: | Judge O’Sullivan |
| Hearing date: | 14 May 2013 |
| Date of Last Submission: | 14 May 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 14 May 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr S. Moore |
| Solicitors for the Applicant: | Clayton Utz |
| Counsel for the Respondent: | Ms S. Bingham |
| Solicitors for the Respondent: | At Work Law |
ORDERS
The respondent’s application in a case filed on 15 April 2013 and two oral applications made this day be dismissed.
The applicant file and serve any application for costs, material and submissions in support by 17 May 2013.
The respondent file and serve any response to the application for costs, material and submissions in reply by 22 May 2013.
Unless otherwise requested, the application for costs be considered on the papers.
The matter be adjourned to 17 June 2013 at 10:00 am (estimated to take 2 days) for hearing at the Federal Circuit Court of Australia at Melbourne.
AND THE COURT NOTES THAT:
A.The submissions referred to on orders 2 and 3 be emailed to the Associate at associate.judgeo’[email protected].
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
(P)MLG 1514 of 2011
| THE DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE |
Applicant
And
| LINKHILL PTY LTD |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Before the Court today are proceedings between The Director of the Fair Work Building Industry Inspectorate (“the applicant”) and Linkhill Pty Ltd (“the respondent”).
The history of these proceedings is set out in a number of decisions of the Court. They are The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.1) [2013] FMCA163, The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.2) [2013] FMCA164, The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.3) [2013] FMCA165 and The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.4) [2013] FMCA 182.
Background
The respondent appealed the orders made on 12 March 2013 for the reasons set out in The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.3) [2013] FMCA165. On 29 April 2013, Murphy J of the Federal Court of Australia published a decision cited as Linkhill Pty Ltd v The Director of the Fair Work Building Industry Inspectorate [2013] FCA 389, and made the following orders:
“1.The application for leave to appeal is dismissed.
2.The Applicant to pay the Respondent’s costs of the application.”
The matter returns to Court today as a result of orders that were made on 13 March 2013 for the reasons set out in The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.4) [2013] FMCA 182, which provided:
“1.The respondent’s applicant for an adjournment be granted.
2.The substantive proceedings be adjourned to 13 May 2013 at 10:00am.
3.The respondent have leave to discontinue the application in a case filed 7 March 2013 pursuant to Rule 13.01(2)(b) of the Federal Magistrate Court Rules 2001.
4.The applicant’s costs be reserved and the applicant file any application for costs thrown away, as a result of the adjournment, material in support and submissions by
2 April 2013.
5.The respondent file any response to the application for costs in order 4 along with submissions by 9 April 2013.
6.Any further interim application by the respondent be filed and served by 9 April 2013.
7.The applicant’s costs application and any interim application by the respondent be made returnable on
16 April 2013.”
On 5 April 2013, the Court made the following orders by consent:
“1.Order 7 of the orders made 13 March 2013 be vacated.
2.Adjourn all interim applications to 13 May 2013 at 10:00 am.”
On 15 April 2013, the respondent filed an application in a case, which sought the following orders:
“1.Leave be granted pursuant to Order 15A, Rule 15A.05(1) to the respondent to issue 3 additional subpoena (in addition to 5 subpoenas to be filed in accordance with the Rules), in the form exhibited as Exhibits YJ-15 to JY-17 inclusive to the affidavit of James Yeatman; and
2.Such further or other others as the Court deems appropriate.”
In support of that application in a case was an affidavit sworn on
12 April 2013 by the respondent’s solicitor, Mr Yeatman.
By virtue of the orders made by this Court on 13 March 2013 and
5 April 2013, the substantive proceedings returned to Court on Monday, 13 May 2013. The hearing has now occupied 8 days.
The applicant is represented by Mr Moore of Counsel and the respondent by Ms Bingham of Counsel.
Two issues
On 13 May 2013 the parties averted to the need to deal with two issues which are the subject of these reasons. It was agreed, at least at that time, that those issues would be parked, as it were and the hearing of evidence from the applicant’s witnesses in the substantive proceedings continued over the course of 13 May 2013. At the conclusion of the hearing on 13 May 2013 it was agreed that for the purposes of the efficient disposition of the proceedings, the two issues which have occupied the Court this morning would be dealt with before further evidence in the substantive proceedings was heard.
The first issue was connected with the application in a case referred to earlier. However the respondent has on instructions since sought (and the hearing has proceeded on this basis) leave by oral application today for the issue of subpoena, over and above those sought in the application in a case filed 15 April 2013. There have been no subpoenas filed by the respondent to date – despite the provision of the rules of this Court not requiring leave for up to 5 subpoena.
The second issue has been an oral application for the Court to make a direction pursuant to section 34 of the Federal Circuit Court of Australia Act 1999, (and in reliance upon Division 45(4A) of the Federal Circuit Court Rules 2001) referring the parties to the substantive proceedings for mediation.
Submissions on issues
The Court has had the benefit of hearing submissions from Counsel for the respondent in support of those applications. The Court has also heard from Counsel for the applicant, who has opposed both applications. For the purposes of brevity, I won’t refer to those submissions in these reasons. The transcript of today’s hearing will bear witness to those submissions. I refer to and incorporate the detail of those submissions from the transcript both in support of each of the orders sought by the respondent, and the submissions made on behalf of the applicant opposing those orders.
I have had regard to those submissions, as well as the material upon which the respondent relied. That is the application in a case filed
15 April 2013 and the affidavit of the respondent’s solicitor, Mr Yeatman filed 15 April 2013. There was a further affidavit of Mr Yeatman sworn 13 May 2013 filed with leave today. The applicant, in opposing the orders sought relied on an affidavit of Ms Davis which was also filed without objection in Court today.
Relevant Rules
The parties’ submissions indicate that, for the purposes of the first issue, the approach that the Court should take is to have regard to provisions of the relevant rules of the Court. The relevant provisions of the Federal Circuit Court Rules 2001 are:
“15A.02 Issue of subpoena
(1)The Court or a Registrar may, on the Court’s or the Registrar’s own initiative or at the request of a party, issue:
(a)a subpoena for production; or
(b)a subpoena to give evidence; or
(c)a subpoena for production and to give evidence.
(2)A subpoena must be in accordance with the approved form.
(3)A subpoena must specify the name or designation by office or position of the person subpoenaed.
(4)A subpoena requiring a person to produce a document or thing must include an adequate description of the document or thing and the time and place for production.
(5)A party should not request the issue of a subpoena for production and to give evidence if production would be sufficient in the circumstances.
15A.03 Documents and things in possession of another court
....
15A.04 Time limits
(1)A subpoena requiring production only may be made returnable at a time fixed by the Court.
(2)A subpoena requiring attendance of a person must be made returnable on a day when the proceeding is listed for a hearing.
(3)Unless the Court directs otherwise:
(a)a subpoena requiring attendance must be served at least 7 days before attendance under the subpoena is required; and
(b)a subpoena requiring production must be served at least 10 days before production under the subpoena is required.
Note: A subpoena must be served within 3 months of issue: see rule 6.18.
15A.05 Limit on number of subpoenas
(1)Unless the Court directs otherwise, a party or independent children’s lawyer must not request the issue of more than 5 subpoenas in a proceeding.
(2)For this rule:
proceeding does not include part of a proceeding.”
In relation to the direction sought regarding mediation, the Federal Circuit Court of Australia Act 1999 provides at section 34:
“(1)The Federal Circuit Court of Australia may, by order, refer proceedings in the Federal Circuit Court of Australia, or any part of them or any matter arising out of them, to a mediator for mediation in accordance with the Rules of Court.
(2)Subsection (1) has effect subject to the Rules of Court.
(3)Referrals under subsection (1) to a mediator may be made with or without the consent of the parties to the proceedings.
(4)Evidence of anything said, or of any admission made, at a conference conducted by a mediator in the course of mediating anything referred under subsection (1) is not admissible:
(a)in any court (whether exercising federal jurisdiction or not); or
(b)in any proceedings before a person authorised by a law of the Commonwealth or of a State or Territory, or by the consent of the parties, to hear evidence.
(5)A mediator has, in mediating anything referred under subsection (1), the same protection and immunity as a Judge has in performing the functions of a Judge.”
Division 45.4A of the Federal Circuit Court Rules 2001 provides:
“45.13B Mediation—Fair Work Act proceedings
(1)This rule applies if the Court refers for mediation under section 34 of the Act a proceeding, or a part of a proceeding, or a matter arising out of a proceeding, to which this Part applies.
Note 1:Section 34 of the Act does not apply to family law proceedings. For dispute resolution in family law proceedings, see Part III of the Family Law Act.
Note 2:The Court may refer a proceeding for mediation under section 34 of the Act with or without the consent of the parties.
(2)The mediator for the mediation must be:
(a)a Judge; or
(b)a Registrar; or
(c)another person appointed by the Court for the purpose; or
(d)an FWC member nominated by the President of the Fair Work Commission.
(3)Unless the Court or a Registrar otherwise orders:
(a)the parties to the proceeding must attend the mediation in person; and
(b)the lawyer or lawyers representing the parties to the proceeding must attend the mediation.
(4)Unless the Court otherwise orders, if an order for mediation is made, the proceeding is adjourned until the earlier of the following:
(a)the day the mediator reports to the Court; or
(b)the day fixed by the Court on which the mediator must report to the Court about progress in the mediation.
(5)The parties must make a genuine effort to reach agreement on relevant matters in issue.
(6)If the mediator considers that the mediation should not continue, the mediator must, subject to any order of the Court:
(a)end the mediation; and
(b)advise the Court of the outcome.
(7)If an issue between the parties remains unresolved at the end of the mediation, the Judge or Registrar may:
(a)give further directions; and
(b)make any other order, including an order for costs.
(8)In this rule:
FWC member has the meaning given by section 12 of the Fair Work Act.
President has the meaning given by section 12 of the Fair Work Act.”
Approach to first issue
The parties were ad idem that the Court should approach the issue of the orders sought by the respondent in relation to the subpoena having regard to the general principles set out by Greenwood J in McIlwain v Ramsey Food Packaging Proprietary Limited [2005] FCA 1233.
Both parties referred to the principles set out at paragraphs 25 through to 37 of that decision which states:
“GENERAL PRINCIPLES
25.Order 15, Rule 8 seems to embody the following process. A party dissatisfied with the completeness of discovery by another party might seek to identify either a document or a class of document as the focus for an application. That document or class of document must relate to a matter in question in the proceeding. The grounds for a belief that some document or class of documents relating to a matter in question exists can be demonstrated to the Court either from evidence adduced by the applicant for an order or from the nature or circumstances of the case (reflected in the pleadings) or from any document filed in the proceedings. The applicant must then demonstrate that such a document or class of document either may be or may have been in the possession, custody or power of a party. Once those matters are demonstrated, the Court may order such a party to file an affidavit stating whether that document or any document of that class is or has been in the possession, custody or power of the party.
26.The focus of the inquiry is not surprisingly directed towards identifying the existence of a particular document or class of document because the party seeking an order for particular discovery will already have had the benefit of general discovery or the benefit of an order made at a directions hearing for discovery framed in whatever way appropriately accommodates the proceeding.
27.It may, however, emerge, in a particular case, that a party has excluded a class of documents based upon a misunderstanding of the relevance of that class of documents to issues reflected in the pleadings. In such a case, the question is not whether there is a specifically identified document but whether, plainly enough, a class of documents exist which are relevant to the issues raised in the pleadings but have not been the subject of discovery by another party consistent with its general obligation or an order made at the directions hearing; Mulley v. Manifold [1959] HCA 23; (1959) 103 CLR 341 at 343, Menzies J.
28.The rule confers a discretion to require particular discovery of a document or class of documents which relate to any matter in issue in the proceedings even though the party from whom the document or class of document is sought may not have joined issue with the applicant for particular discovery, on the pleadings; Murex Diagnostics Australia Pty Ltd v. Chiron Corporation (No. 2) (1995) 62 FCR 424 at page 430, Burchett J, paragraphs [D] and [E].
29.The rule is not limited to a case of defective compliance with an earlier order; Murex Diagnostics Australia Pty Ltd v. Chiron Corporation (No. 2) (1995) 62 FCR 424 at page 430, Burchett J, paragraph [C].
30.The requirements of the rule are not to be avoided by simply issuing a subpoena duces tecum upon an opposing party.
31.The proper role of Order 15, Rule 8 and its relationship to the use of the subpoena power was discussed by Branson J in Diddams & Ors v. Commonwealth Bank of Australia & Anor [1998] FCA 497 (NG 3401 of 1996) where Her Honour said:
"However, the usual legal processes by which a party to a proceeding in the Court obtains access to the documents of opposing parties are the processes of discovery and inspection. Where the Court has by detailed directions set a timetable for the undertaking of the procedural steps necessary to bring a matter to readiness for trial, including a timetable for the discovery and inspection of documents, it is to be expected that the parties will seek such documents ‘relating to any matter in question between [them]’ as they wish to have access to through the process of discovery and inspection (O15 r2(2)). If such documents are sought by subpoena or notice to produce issued close to trial, the Court’s endeavours to manage the process of the preparation of the matter for trial, and to ensure that no interlocutory issues are outstanding at the hearing date, may be subverted."
O 15, r 8 of the Federal Court Rules provides a procedure whereby particular discovery may be sought where a party is dissatisfied with the extent of discovery made by an opposing party. The discretion given to the Court by O 15, r 8, and the requirement that, before any order may be made under that rule, it should appear to the Court ‘... from evidence or from the nature or circumstances of the case or from any document filed in the proceeding that there are grounds for a belief that some document or class of document relating to any matter in question in the proceeding may be or may have been in the possession, custody or power of [the] party’, ought not, in my view, to be able to be avoided by the simple device of serving a subpoena duces tecum upon an opposing party.
...The rules of court do not place on judges the responsibility of determining for the parties which of their respective documents are required to be discovered. Judges have not traditionally assumed such a role. I do not consider that, by choosing to issue a subpoena, rather than to seek an order pursuant to O 15, r 8 of the Federal Court Rules, a party should be able to achieve the result of placing such a responsibility on a judge. Moreover, in this case it would have been inappropriate for the conduct of the trial to have been further disrupted by my being required to read documents produced in response to a subpoena called during the course of the taking of evidence."
32.In Australian Competition and Consumer Commission v. Shell Company of Australia Ltd (1999) 61 ALR 686, Cooper J explained the rationale for the principle as one where a particular method had been prescribed by the rules for achieving particular discovery consistent with established principle and it was therefore impermissible to seek to achieve the same objective through the subpoena process and thus avoid the requirements of the rules and the proper process. In addition, His Honour at paragraph [51] said:
"[51] Like the case before Branson J in Diddams v Commonwealth Bank of Australia, this case has been the subject of a managed timetable and, other than the issues raised by this subpoena and motion, the matter is ready for trial. In those circumstances the ACCC should not be permitted to avoid the evidentiary onus required by O 15, r 8 in order to go behind two affidavits of documents provided by Shell by issuing a subpoena in this form."
33.As to Order 15A, Rule 8, Nicholson J in McLernon Group Insurance Pty Ltd v. Biron Corporation Limited & Anor [1995] FCA 500 identified the features adopted by Burchett J in Richardson Pacific Ltd v. Fielding & Ors [1990] FCA 311; (1990) 26 FCR 188, governing the use of the rule. His Honour, Nicholson J, said:
"1.The purpose of the order is, quite expressly, to enable discovery to be obtained in some case where anything less than the broad obligations imposed by an order for discovery would simply not meet the case.
2.The rule provides a more practical and convenient means by which a party may obtain an opportunity to examine documents in advance of the hearing with sufficient time to take such further steps as a perusal of them may suggest.
3.The rule is intended, not for the general run of case, but for cases which do have about them something outside of the ordinary so that, by this means, the Court can go beyond what could be done upon a subpoena duces tecum issued in advance.
4.Normally an order for disclosure of documents by a stranger to proceedings should be made only when the stranger to the proceedings has the only copies of the particular documents, disclosure of which is sought, and the party to proceedings, who is seeking disclosure, has exhausted his or her rights with respect to discovery against the other party to proceedings.
5.That, however, is not a fetter restricting the applicability of the rule in cases where the evidence suggests it would provide an appropriate and reasonable solution to real problems.
6.In that particular case, there was a close relationship between the respondents and the non-parties sought to be subjected to the requirement of giving discovery and the relationship was quite unusual so that the circumstances were extraordinary.
7.In the drafting of orders sought for third party discovery tighter lines should be followed than may be usually the case, although circumstances may make a broad order appropriate.
8.A relevant consideration is whether it is plainly probable that there do exist documents relevant to the issues in the case which orders in the nature sought would be likely to bring to light.
9.The jurisdiction under the rules should be exercised with caution.
10.The exercise of the discretion to make an order under the rule should not be fettered by any precise rules and the above matters should be taken as general guides."
34.In Re La Rosa; Ex parte Norgard, French J (unreported, 26 October 1992) seemed to accept that the rules relating to inter-parties discovery and the rules governing the issue of subpoenas might well, although not in every case, exclude resort to Order 15A, Rule 8.
35.In relation to the principles governing when leave ought to be granted to issue subpoenas, these principles emerge:
(a)A writ of subpoena duces tecum is competent against both a party and a stranger to the proceeding: The Adelaide Steamship Company v Spalvins (unreported, O’Loughlin J, 1 August 1997).
(b)A request for a subpoena cannot be used to disguise an application for discovery of documents, or as an alternative to an application for further and better discovery. It is not permissible to use to a writ of subpoena duces tecum as a substitute for discovery of documents against a party to the proceeding. The subpoena process should not have the effect of discovery against a person who, as a stranger to the proceeding, is not liable to make discovery: The Adelaide Steamship Company v Spalvins; The Commission for Railways v Small (1938) SR (NSW) 564; Diddams v Commonwealth Bank of Australia [1998] FCA 497. The subpoena process cannot be used to initiate an inquiry as to relevance outside of the time and place identified by the rules for discovery.
(c)Reference has already been made to the principles identified by Branson J in Diddams & Ors v. Commonwealth Bank of Australia.
(d)The documents for production must be identified with reasonable particularity. (The Commissioner for Railways v Small (1938) SR (NSW) 564, 574-575 per Jordan CJ). The category of documents must not be so wide as to be oppressive.
(e)The documents must be relevant to an issue raised on the pleadings and be used to elicit documents to support the applicant’s existing case. It cannot be used for purposes of ‘fishing’ or for the purpose of determining a preliminary question as to whether the party has a supportable case (Hennessy v Wright (1888) 21 QBD 509), or to investigate the character of the opposing party’s evidence (Griebart v Morris [1920] 1 KB 659, 666).
(f)The test for relevance does not require that a party demonstrate direct relevance to the contest between the parties. Rather, the documents must have some potential relevance to the pleadings as they stand. In Australian Gas Light Company v Australian Competition & Consumer Commission [2003] FCA 1101, French J summarised the matters which are relevant to the grant of leave:
"It is not appropriate to be overly prescriptive in setting out criteria for the grant of leave to issue a subpoena. Plainly, the documents sought must have at least some apparent potential relevance to the matters in issue in the litigation. The assistance that the requesting party may derive from the production of such documents must be taken into account. Case management considerations are also relevant. A wide-ranging subpoena, seeking documents of doubtful relevance at great inconvenience to, or that risk compromising the commercial privacy of, a third party, may not readily attract the grant of leave. Where the issue of such a subpoena is likely to delay progress to trial because of the legitimate interests of a party in resiting its issue, that may also be a practical factor to be weighed."
(g)The same notion was expressed in Small (575) and Dorajay Pty Limited v Aristocratic Leisure Limited [2005] FCA 588, [34] in requiring the existence of a legitimate forensic purpose for the production of documents.
(h)In Trade Practices Commission v Arnotts Limited (No. 2) (1989) 21 FCR 306, Beaumont J said that the question of whether a subpoena should go can conveniently be addressed by reference to two questions. First, does the material sought by the subpoena have an apparent relevance in a descriptive or adjectival sense rather than a substantive sense? Does the subpoena have a legitimate forensic purpose to this extent from the perspective of the party issuing the subpoena? Secondly, does the subpoena cast a serious and unfair burden or prejudice upon the respondent to the subpoena?
(i)Spender J in Cosco Holdings Pty Ltd v Commissioner for Taxation [1997] FCA 1504 suggested that adjectival relevance looks toward the possibility whether the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings.
(j)When a party contends material that either is or may be or may have been in the possession, custody or power of a respondent relates to any question or issue raised on the pleadings, they will be taken to mean that the material is relevant in the sense contemplated by section 55 of the Evidence Act 1995 (Cth) namely, evidence that if accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings. This is the substantive relevance of the material. The test for the issue of the subpoena is whether the material appears to have relevance in the sense of throwing light on at least some of the issues in the principal proceeding.
(k)The relevance of the documents must not be disproportional to any benefit that their production might have for the respondent: Dorajay [34].
(l)A subpoena ought not issue in circumstances where it would unduly disrupt the conduct of the trial by requiring the Court to read documents which could have been obtained at an earlier stage in the proceedings: Diddams v Commonwealth Bank of Australia [1998] FCA 497.
(m)The issue of the subpoena must not, in all the circumstances be oppressive in terms of its impact on the recipient. That is, the issue of the subpoena must not be ‘seriously unfairly burdensome, prejudicial or damaging’ and ‘productive of serious and unjustified trouble and harassment’. (Hamilton v. Oades [1989] HCA 21; (1989) 166 CLR 486, 502, Oceanic SunLine Special Shipping Co. Inc. v. Fay [1988] HCA 32; (1988) 165 CLR 197, Seven Network Limited v News Limited (No 5) [2005] FCA 510; [2005] 216 ALR 147, [12].
(n)The issue of a subpoena against a stranger to the proceeding is more likely to succeed later in the proceeding. Though there is no formal barrier to a subpoena to produce being returnable prior to the hearing, the document may well be premature where no trial date has been fixed. Where the proceeding is of considerable evidentiary complexity there is stronger force to serving the subpoena at an earlier stage: Hughes v Western Australian Cricket Association (1986) 66 ALR 541.
(o)In Dorajay Pty Limited v. Aristocrat Leisure Limited [2005] FCA 588 at paragraph [17], Stone J noted the observations of Waddell J in Spencer Motors Pty Ltd v. LNC Industries Ltd [1982] 2 NSWLR 921 at 927, summarising the views of Moffitt P in National Employers’ Mutual General Association Ltd v. Waind & Hill [1978] 1 NSWLR 372 to the effect that whether subpoenas are oppressive or an abusive process depends on whether "it is reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case". Her Honour said at paragraph [18]:
"These authorities show that the criteria by which one determines whether a subpoena should be set aside, in whole or in part, may be expressed in different ways but ultimately, they all come down to whether such action is required to prevent an abuse of the processes of the court to prevent injustice. As Deane and Gaudron JJ recognised [Hamilton v Oades[1989] HCA 21; (1989) 85 ALR 1 at p.11] in the comments quoted by Beaumont J [in Trade Practices Commission v. Arnotts Limited], various terms may be used in focusing these concerns on the circumstances of a particular case. In this case, whether the documents are relevant (in the sense used by Beaumont J) will determine the issue provided that the requirements of the subpoena are not otherwise oppressive."
36.Although the rule is not concerned with cases of defective compliance, it nevertheless remains necessary to establish grounds for a belief that a document or class of document relating to a matter in question in the proceedings exists and such a document or class of documents may be or may have been in the possession, custody or power of the respondent party to the motion.
37.The time when the application is made, its proximity to the trial, the contextual relevance of the application having regard to the management of the proceedings and the sequence of directions orders also go to the discretion as to whether an order for particular discovery ought to be made.”
Consideration of first issue
In relation to the first issue, the parties’ respective positions are pellucidly clear from the submissions incorporated into these reasons. The respondent’s submission is that the forensic purpose for the issue of the subpoena is made out. There’s a legitimate purpose for the subpoena and the documents sought are relevant. The respondent seeks the subpoena issue notwithstanding the stage of the substantive proceedings as it was submitted the taxation returns sought in those subpoena will be relevant to one of the issues in the substantive proceedings. The applicant opposed the orders sought for the reasons referred to in submissions.
In the context of the substantive proceedings, and in the light of the allegations in the substantive proceedings, I note the Full Court decision in Ace Insurance Limited v Trifunovski [2013] FCAFC 3, referred with approval the tests or approach applied by the judge at first instance, Perram J, as reported in Ace Insurance Limited v Trifunovski and Ors [2011] 200 FCR 532.
It seems to me, applying the approach of Greenwood J in McIlwain (supra) even if I am satisfied that the respondent is able to make out the first of the series of the matters enumerated by His Honour at paragraph 35 of that decision, the respondent’s application, occurring as it does at the current stage of these proceedings, and against the background of the orders and directions made on 13 March 2013 (as well as the orders and directions made on 6 December 2012) faces a number of difficulties. Putting to one side the non compliance with those orders and directions the difficulty is the stage at which the respondent’s oral application has been made. In my view this tells decisively against it being granted. I have already noted that these proceedings are part heard and it is day 8 of the hearing of the substantive proceedings.
As Greenwood J notes in McIlwain, at paragraph 35, a subpoena should not issue in circumstances where it would unduly disrupt the conduct of the trial. At paragraph 35, His Honour also notes that the issue of subpoena must not in all of the circumstances be oppressive in terms of its impact on the recipient, and the issue of the subpoena must not be seriously unfairly burdensome, prejudicial, damaging and productive seriousness by unjustified trouble and harassment. Importantly for present purposes in dealing with the respondent’s application I note that at paragraph 37 of McIlwain, Greenwood J noted that the time when the application is made, it’s proximity to the trial, the contextual relevance of the application having regard to the management of the proceedings and the sequence of directions, orders, also go to the discretion as to whether to make the order.
The difficulty I see exercising the discretion is it’s all too (as counsel for the applicant noted in submissions), far too late in the context of the substantive proceedings. This is the case given the orders and directions that have been made during the course of these proceedings. I note that the respondent has at all relevant times, been represented by the same solicitor.
The orders of 6 December 2012 noted that subpoenas were to be issued and returnable before seven days prior to the hearing. That was in December 2012. When the issue was raised again after the commencement of the substantive hearing and on 13 March 2013 the Court made an order for the application in a case to be filed, which wasn’t ultimately made until 15 April 2013. The orders sought today changed again when the respondent faced the difficulties that were averted to in submissions this morning and Counsel for the respondent on instructions then made the oral applications referred to above. The evidence upon which the respondent relied to explain the delay, at least in relation to the compliance with the orders of 13 March 2013, is not only deficient in a number of respects but suffers from failing to provide an acceptable or explicable reason for why the most recent orders given the background of this matter were not complied with.
That there was this oral application (made on instructions) when no subpoena had issued despite the foregoing simply underscores why in the particular circumstances of this matter there was neither an explicable nor a satisfactory explanation for the non compliance by the respondent. Nor was there any evidence capable of addressing the other issues in McIllwain. I accept the submissions made on behalf of the applicant opposing the orders sought by the respondent. I am not in light of the principles that I’ve referred to minded to exercise the discretion to make the orders sought. I find that in the circumstances to do so would give rise to the prejudice that has been referred to in submissions made by the applicant. I do so having regard to the objects and the rules under which this Court operates in the context of and given the stage of the substantive proceedings.
For those reasons, I refuse the application made this day on behalf of the respondent for the issue of the subpoenas.
Second issue
The second oral application was only made today on behalf of the respondent. I’ve already noted the relevant sections of the Act and the Rules under which this Court operates. I note the submissions made that set out the basis upon which the respondent sought that direction. I also note the basis on which the applicant opposed, in light of the history of this matter and for the reasons referred to, the making of that order.
It’s not in dispute that the substantive proceedings have already been the subject of two Court-ordered mediations. I note the submissions made on behalf of the respondent that those mediations had occurred before the most recent iteration of the statement of claim.
In considering the application made on behalf of the respondent in relation to this issue, I’ve only been able to find one reported decision which has considered the power of the Court to make such an order or direction. In Broad Spectrum Training Proprietary Limited and others v Bidding Buzz Limited and Ors [2010] FMCA 932 it was said:
“… A number of factors might affect whether or not the Court considers it desirable to adjourn the proceedings pending mediation, and in which forum mediation ought to initially take place. Having regard to the circumstances of this case, the factors may include:
(a)whether the parties consent to mediation;
(b)the prospect of the matter being resolved through mediation;
(c)whether mediation might narrow the issues to be determined in the proceedings, and, therefore, whether the mediation might be of benefit to the proceedings;
(d)the length of time that mediation may take;
(e)whether or not mediation will unduly delay the proceedings;
(f)whether processes and timeframes for mediation have been, or can be, complied with;
(g)the expense to the parties of the mediation;
(h)the effect on the parties of mediation and attending mediation; and
(i)the objects of the relevant legislation, in this case the FM Act and FMC Rules, and the TP Act, TP Franchising Regulations and Franchising Code.”
The applicant opposes the orders sought on behalf of the respondent.
It has been noted that this matter has already been the subject of two Court-ordered mediations. I note the submission made on behalf of the respondent in support of the directions sought today. The respondent submits that in light of the decision of Murphy J referred to earlier His Honour’s decision (in particular paragraphs 47 and 49) may narrow the issues in the substantive proceedings.
It was submitted these comments were such as to make it productive that the proceedings be the subject of mediation in an attempt to ensure whether some or all of the issues between the parties could be compromised or to obviate the need for the Court to make a decision on the issue/s.
However, I note that the applicant is in violent disagreement with the respondent on that interpretation of His Honour’s decision.
The submissions made on behalf of the applicant in relation to that issue are referred to earlier.
Whilst of course it’s always possible for issues to be narrowed, in the circumstances of this matter, as has been adverted to in submissions made on behalf of the applicant there’s no reason why that can’t happen after the close of the evidence in this matter. The applicant submits that the oral application made today shouldn’t be allowed to disrupt the ongoing conduct of the hearing of the substantive proceedings. Weighing in my mind in particular against the orders sought by the respondent today is the time that it has taken to make this application. There have already been two mediations. Unfortunately this latest application is rather too late being made during day 8 of a part heard trial.
I have taken into account the submissions that have been made on behalf of the respondent. Counsel is instructed that the respondent didn’t appreciate the seriousness and the significance of these proceedings. Given that the respondent has been at all times represented by the same solicitor I’m not sure what that says as to the standard of representation that the respondent has had. However in the circumstances I’m not satisfied that an order by the Court today would be productive in narrowing the issues, or even if I was, I am satisfied it would visit undue disruption, further expense and delay to these proceedings. I refuse, in light of the criteria set out in Broad Spectrum, to make the orders sought in the oral application made on behalf of the respondent today.
Conclusion
For those reasons, the two oral applications made by the respondent will be refused. I so order.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge O’Sullivan
Date: 17 June 2013
4
21
4