The Master Builders Association of NSW v The Plumbers & Gasfitters Employees Union of Australia

[1987] FCA 305

. .

CATCHWORDS

PRACTICE AND PROCEDURE - subpoena to produce documents -

application to set aside - whether oppression - documents in use

for other current legal proceedings - whether subpoena seeks discovery against stranger - whether documents sought relevant -

whether ulterior motive	for subpoena - whether subpoena uncertain
or ambiguous - whether	recipient can be compelled to make

inquiries as to whether particular documents answ

subpoena.

Conciliation and Arbitration Act, 1904 s.119

THE MASTER BUILDERS ASSOCIATION OF NEW SOUTH WALES and

THE FIRE SPRINKLER CONTRACTORS' ASSOCIATION OF AUSTRALIA

V THE PLUMBERS AND GASFITTERS	ENPLOYEES' UNION OF AUSTRALIA
NSW Nos. 7 and 8 of 1987
Gray 3.
23 April 1987
Sydney

.

INDUSTRIAL DIVISION

Between: THE MASTER BUILDERS

ASSOCIATION OF . N m SOUTH

WALES and W E FIRE

SPRINKLER CONTRACTOFS '

ASSOCIATION OF AIJSTRALIA

(Applicants)

m: THE PLUMBERS AND

GASFITTERS EMPLOYEYE-

TJNION OF AUSTPALIA

1 Respandent )

W: Gray J.

: * D 2 3 Aprll 19R7

Place: Sydney

REASONS €OR JUDGMENT

These proceedings were commenced on 23rd January 1937,

by the fill113 of appllcations pursuant to s.119 of the

Conciliation and Arbitratlon &t_ 1904. Each of the

applicants and the respondent 1 s an organization reqlstererl

pursuant to respondent 1 s qulltjr 87f breaches ijf an award made under that that A c t . Each appllcant alleges that the

Act, the brparhss alleqed be~ng the lmposltlon of bans on the

perfgrmance of certaln klnds of work at various buildlng

sit?s In New South Wales. The applicant; seek the Irnposlt lon

2 .

of penalties for those breaches.

Points of claim, and points of defence have been flled

and served, as have affidavlts. The matter has now been

flxed for trial on 18th May 1987. Each of the applicants has

been called upon to make, and has made, discovery of

documents.

On 10th March 1987, the respondent caused to be issued

number a of subpoenas to produce documents. In each proceeding there is a subpoena directed to the applicant. In addition, subpoenas have been directed to a number of companies, each of which is alleged to be, or to have been, a contractor or sub-contractor, conductlng works on one or more

of the sites on which the bans are alleged to have been

imposed. The Court has been told that there are some 37

subpoenas. They are identical in form, save for one feature. Each has attached to it a copy of the points of claim filed in the relevant proceeding, which in turn has attached to it

a schedule specifying the work alleged to be, or to have

been, the subject of a ban at each site to which the

proceeding relates, and the dates on which the bans are

alleged to have been imposed. In most cases, the bans are

alleged to date from 25th September 1986, and to be

“continulng”. There are differences between the bans alleged

in the two different proceedings.

Each subpoena requires the production of the documents and things described in the schedule to the subpoena. It is

.

3 .

convenient to set out the contents of that schedule:

"A. A1 1 letters, telegrams, telexes,

photographs, memoranda, notes, records,

reports, diaries, mlnutes, leaflets,

pamphlets, newspapers, ]ournals,papers,

receipts, accounts and all other

documentary material in the files of	the
Company relating to:-

1. Any decision taken by:-

The Plumbers and Gasfitters

Employees" union of Australia

('the Respondent');

any branch of the Respondent;

any officer of the Respondent

or any branch thereof;

any employee of the Respondent

or any branch thereof;

any member of the Respondent.

impllment;

maintain;

extend;

1 imi t

lift

any of the alleged bans referred to in the Schedule to the Points of

Claim herein a	copy of which is
annexed hereto.

2. The participation by:-

(a) The Respondent;

(b)	any branch of the Respondent;
(c)	any officer of the Respondent

or any branch thereof;

(d)	any employee of the Respondent or any branch thereof;
or
(e)	any member of the Respondent

in the bans referred to in paragraph

1 or any of them.

.

4 .

3. authorisation Any given or

puiportedly given by or- on behalf

of :

(a) The Respondent;

(b)	any branch of the Respondent;
(c)	any officer of the Respndent

or any branch thereof;

(d)	any employee of the Respondent or any branch thereof;
or

(e) any member of the Respondent

to any other person or persons in relation to any decisions or conduct identified in paragraphs 1 or 2 above.

4. The exlstence of the bans referred

to in paragraph 1 above or any of

them.

5. Any meeting or meetings of members of the Respondent, or the New South Wales branch of the Respondent, held

in connection with mattes e

identified in paragraph 1 above or

any of them.

6. Any meeting or meetings of employees of your company or any company with which your company had a sub-con- tract held in connection with the

matters identified in paragraph 1

above.

7. The service by the Respondent of any

log of claims seeking increases in

wages andlor improvements In working

conditions on your company or any

other company with which your

company had sub-contract since 1st

January, 1986.

8. The:-

(a) suspension;

or

(b) dismissal

of any employee of your company or

any other company wlth which your

company had a sub-contract as a

5.

result of:-

(a) The particlpatlon by such

employees or any of them In any of the bans referred to in paragraph 1 above;

(b)	the refusal by such employees or any of them to perEorm work
the sub~ect of the said bans;
(c)	the refusal by such employees or any of them to lift, limit, or otherwise modify, any such bans.

9. The alleged cost of the said bans or

any of the said bans to your company or any other company with which your company had a sub-contract including

estimates and estimates of future

costs.

B.

Copies of all documentary material handed

or otherwise delivered by your company or

any company with which your company had a

sub-contract to employees referred to	in
paragraph 8 above on or about the time	of
their suspension or dismissal or prior	to

the time of their suspension or dismlssal

and in connection therewith."

A number of the recipients of subpoenas desire to apply to

set them aside. On 31st March 1987, when the matter first

came before me, Mr. Camilleri of counsel who appeared with

Mr. Street of counsel, announced his appearance for the two

applicants, and for 15 companies to which subpoenas had been

addressed. Mr. Holmes of counsel announced his appearance

for seven companies to which subpoenas were directed. Mr.

Kenzie P.C. appeared with Mr. Moore of counsel for the

respondent. Some discussion took place as to whether all

subpoenas had been served, and as to whether those wishlng to

set them aslde had complied with earlier directions as to the

filing of notices of motion for that purpose. In the result,

the applications of Civil and Civic Pty. Ltd., and White

Industries Llmlte.3, ti, 5-t asld? a r;ubpoena served lnn - 3 c h nf

thpm In each ~f the procefai1nns. has hePn de;llt wlth, and lt

1s to thoz- 3ppIicatlnns that thls judgment relates. Mr.

Holmes appeared for the companies concerned, and therefore

had carrlage of the applications. Further argument was heard

on 1st Aprll, and on 22nd April, when Mr. Kimber of counsel

appeared with Mr. Kenzle. Although Mr. Camlllerl's cllents

have not yet been heard on their o ~ m applications to s e t

aside subpoenas addressed to them, Mr. Camllleri has

addressed the Court on behalf of the applicants in relation

to the appllcatlons	of Civll and Civic Fty. Ltd. and Whlte
Industries Limlted.

Certain propositions of law have been common ground.

It is agreed that a subpoena to produce documents must

specify with reasonable particularity the documents tc be

produced: Commissioner for Rallwavs v. Small (1338) 38 3 . R .

(N.S.W.) 561, 573, Lucas Industries Ltd. v. Heuitt (1978) 18

A.L.R. 555, 570, and Lane v. Reqistrar of the Supreme Court

of New South Wales (1981) 148 C.L.R. 245, 259. It was also aqreed that a subpoena which requires the production of

documents "relating to" a particular subject matter does not

necessarlly infringe the requlrement of partlcularlty, even

though the reclplent gf the subpoena may have to search for

documents and make decislnns as to =hether partlcular

documents do be l r a relatlonshlp to the subject specified:

at p.570, Spencer Motors Ftv. Ltd. v. LNC Industries

Ltd. C13823 2 N.S.W.L.R. 921, 929 and Southern Pacific Hotel

Serv.ices Inr. v. Sauthecn Paclfic Hotel Corporation Ltd.

7 .

C19841 l N.S.W.L.R. 710, 719. There was also consensus that

the subpoena must be read sensibly, and wlth reference to the

circumstances known to the reclpient: Lucas at p.571. There

were, of course, differences as to the application of these

propositions to the particular subpoenas. Before proceeding

to those differences, I should deal with some general

submissions that were made	about the subpoenas in the present
case.

Mr. Holmes attempted to make out a case that the subpoenas are oppressive, in the sense that compliance with them would involve the making of searches and inquiries that would be unduly burdensome. Naturally, a burden will be placed upon a stranger to litigatlon who is called upon to

produce documents to a court. It 1s in the interests of

~ustlce, however, that the parties to litigation should have

the means of obtaining documentary evidence that is in the

custody of strangers. It is only when the private interests

of the stranger can be shown to outweigh the public interest

in the doing of justice that the Court will set aside a

subpoena on the ground of oppression. What is involved is a

balancing of the respective public and private interests:

Southern Pacific at subpoena is in wide terms, which would cover large numbers pp.719-720. The mere fact that a

of

documents, cannot absolve its recipient from compliance.

Otherwise, persons in possession of many documents would be

more likely to be safe from subpoenas than those with few. Nor can the fact that the recipient of a subpoena is a large business entity, with many places of business, of itself

8 .

amount to a ground for setting aside a subpoena. Otherwise,

large companies could withhold evidence, whilst small

companies would be bound to provide it. Indeed, in the absence of evidence to the contrary, it may be assumed safely

that a large business entity keeps its records accesslble,

reasonably indexed, and controlled by efficient staff, and

that consequently the burden on it of complying with a

subpoena to produce large numbers of documents will be less

than that on a smaller business entity, or an individual.

Compare Lucas at p.571.

In the present case, although Mr. Holmes was permitted to call oral evidence, very little evidence was given as to

what would be involved in compliance with the subpoenas. It

was conceded by Mr. Kenzie that White Industries Limited

operates Australia-wide, is engaged on eighteen building

projects, has four offices in four States, and approximately 2,000 employees. Civil and Civic Pty. Ltd. operates Australia-wide, is engaged on over 100 building projects, has

eight offices in five States, and employs approximately 2,000

people. Each company has documents, records and files at

each of its offices and building sites and various other

places throughout Australia. These concessions, however, do

not supply evidence that compliance with its subpoenas would

be oppressive for either company. There is a notable lack of

evidence of the extent to which records are kept, how they

are ordered or collated, whether they are indexed, the likely

numbers of documents involved, the personnel required, and

the time needed, to search for them, and the costs to the

9.

company concerned of these tasks. If the searches and

inquiries necessary were likely to entail great labour and

expense, it is to be expected that evidence would be given of

those matters. It is not to be supposed that either company

keeps documents distributed at random throughout its offices,

project sites and other places. Rather, I assume that it has

systems of storing and retrieving documents, and of

communicating between offices, project sites and other places

with respect to them. If this is not so, evidence of the

true state of affairs could be given. It is worth noting

that Mr. Camilleri, on behalf of his clients, expressly

disavowed any intention of arguing that compliance with the

subpoenas would involve excesslvely burdensome trouble and

expense. For these reasons, I hold that Mr. Holmes has

failed to establish a case of oppression.

Mr. Holmes also attempted to argue that the subpoenas

were objectionable because compliance with them would involve

the production of documents which have come into existence,

and are in use, for current legal proceedings. There are

before the General Division of the Federal Court of

Australian pending proceedings against the respondent under

s.45D of the Trade Practices Act 1974. Mr. Holmes’s clients

are applicants in those proceedings, as are a number of other

companies. That those proceedings have generated a large

quantity of paperwork cannot be doubted. Evidence was given

of the quantities of documents in the offices of the

solicitors who act for the two companies here concerned, and

for other companies, in those proceedings. It was said that

10.

the photocopying bill amounts to $20,000, which IS indlcative

of the number of documents involved. In part, the objectlon to the subpoena on this ground was based on the quantity of

documents involved. As I have pointed out earlier, however,

the number of documents is not decisive. In part the

objection was based on the inconvenience arising from b e m g

deprived of the documents necessary for the conduct of the

other litigation; for the remainder, it was based on the fact that legal professional privilege would be claimed for many, but not all, of the documents involved in the case. There is no authority which suggests that a party can apply to set aside a subpoena to produce documents on the ground that the documents concerned are required in the conduct of other

litigation. Such a rule would require too many

qualifications, so that it would not enable a subpoenaed

person to commence litigation for the purpose of tying up the

documents sought. It seems to me that the proper course 1s

to produce the documents in answer to the subpoena and to ask

the court for directions which will enable such of them as

are to be inspected to be inspected speedily, or by means of

copies, and for the rest to be uplifted and used, perhaps

with undertakings as to their swift return if required.

Similarly, it does not appear that the likelihood of a clalm for legal professional privilege in respect of some documents

amounts to a ground on which a subpoena can be set aside.

The productlon of the documents to the court does not amount

to a breach of the privilege, and objection based on the privilege can be taken if any party applies for leave to inspect the documents in the custody of the court. See

11.

National Employers' Mutual General Associatlon Ltd v. Wairld

and Hill C19783 1 N.S.W.L.R. 372.

Another general ground on which Mr. Holmes attacked the

subpoenas was the contention that they required the two

companies, who are strangers to the litigation In these

proceedings, to give discovery of documents. Some confuslon

appears to have arlsen out of a passage in the judgment of

Jordan CJ in Commissioner for Railwavs v. Small (1938) 38

S.R. (N.S.W.) 564, 573, where his Honour said:

"A subpoena duces tecum ought not to be issued to

such a person requiring him to search for and

produce all such documents as he may have in his

possession or power relatlng to a particular

subject matter.	It is not legitimate to use a
subpoena for the	purpose of endeavouring to

obtain what would be in effect discovery of

documents against a person who, being a stranger,

is not liable to make discovery. A stranger to

the cause ought not to be required to go to

trouble and perhaps to expense in ransacking his records and endeavouring to form a judgment as to

whether any of his papers throw light on a

dispute which is to be litigated upon issues of

which he is presumably ignorant :"

It is now well established that there 1s a distinction

between requiring astranger to litigation to produce

documents relating to a specified subject matter, and requiring such a person to produce documents relating to the

issues in a particular proceeding. The latter course

involves the person in forming a view as to what issues

arise, or may arise, in the proceeding, and then considering

whether the various documents are relevant to the issues, and

amounts to seeking discovery. The former course is

12.

legitimate and does not amount to seeking dlscovery, provided

that the subjects to which the documents must relate are

specified with the requlsite degree of particularity. See

at pp.381-382, at p.569, Southern Pacific at pp.

717-718 and Couchlines Ptv. Ltd. (1986) 67 Grevhound Australia Ptv. Ltd. v. Deluxe

A.L.R. 93, 97-98.

In the present case, the subpoenas do not direct

attention to issues in the litigation as such, but to sub~ect

matters. True it is, much of the subject matter is described

by reference to the bans specified in the schedule to the

points of claim, but at no stage is either of the recipients

obliged to form any view as to what is or may be in issue in

the proceedings. The recipients are not supplied with points of defence or affidavits; their attention is directed to the bans described in the schedule to the points of claim by way

of specification of the sites and dates of those bans, and

the nature of the work banned. It is as if those details

were set out in the subpoenas themselves. It cannot properly

be said, therefore, that the recipients of these subpoenas

have been called upon to give discovery of documents.

Much discussion took place upon the question of the

relevance of the documents sought to the issues in the

proceedings. In one sense, the stranger who receives a

subpoena to produce documents is not concerned with the

relevance of those documents to any issue in the proceeding

in which the subpoena is issued. The stranger is not called

upon to make a decision on the question of relevance, but

13.

only to produce the documents specified. On the other hand,

it cannot be denied that courts do have regard to relevance

to the issues in the proceeding, when asked to set aside subpoenas: Southern Pacific at p.720. The fact that a large number of plainly irrelevant documents is called for may be taken into account on the question of oppression. An attempt to obtain documents which are plainly irrelevant may be evidence of fishing, or of an ulterior motive in seeking the documents, so as to use them for some purpose other than the particular litigation. It seems, therefore, that the possible relevance of the documents sought should be considered, especially where, as here, it is alleged that the party procuring the issue of the subpoenas is fishing, or is

seeking documents with a view to using them for an improper

purpose. In this case, it was suggested that the respondent

was seeking the documents described in sub-paragraph A9 of

the schedule to the subpoenas in order to obtain a preview of

evidence which might be led of loss and damage in the

proceedings under s.45D of the Trade Practices Act 1974.

The test of relevance must necessarily be a generous

one. In many cases, it is difficult to rule on the relevance of a question asked of a witness at a trial, since the full

extent of the issues raised may not become apparent until

final addresses. When the trial has not begun, and the

contents of the documents sought by the subpoena are unknown,

it is even more difficult to decide whether the documents are

relevant to the issues. Only in cases of obvious irrelevance should a party be deprived of the right to obtain evidence to

14.

further a case or defence at a trlal.

In the present case, there is no such obvlous

irrelevance. The argument tended c ncentrate to on

sub-paragraph A9 of the schedule to the subpoena, the

submission being that evidence of the cost of the alleged

bans could not be relevant to determlning whether bans had

been imposed by the respondent, and whether, if they have,

they amount to award breaches. Even if this submission be

correct, and I am by no means certain that it is, it does not exclude the real possibility that evidence of cost may be admissible on the question of penalty, in the event that the respondent is found to be in breach of the awards. As things

stand at present, it would not be proper to set aside the

subpoenas on the ground that they are fishing. Nor is the argument of ulterior motive made out. The only suggestion of an ulterior motive arises from the terms of the subpoenas

themselves; it is by way of inference, rather than positive

evidence. If the documents sought may be relevant to the

issues in these proceedings, the fact that knowledge of their contents may advance the respondent in other proceedings is of no account.

Before turning to the specific words of the schedule to

thc subpoenas, I should deal with one argument advanced by

Mr. Kenzie. He said that the subpoenaed companies are really

participants in the vents which give rise to these

proceedings; he pointed to the fact that employees of Civil

and Civic Pty. Ltd. have sworn affidavits which have been

15

filed by one of the applicants, and to the mvolvement of the two subpoenaed companies in the proceedings under s.45D of

the Trade Practices Act 1974. There is evidence of some

overlap between sites the subject of those proceedings and

sites the subject of these. Mr. Kenzie contended that the subpoenaed companies really know what they are being called

upon to produce, and that objections taken to the words used

in the subpoenas are technical "lawyers' objections", rather

than genuine. It may be that the recipient of a subpoena

will have an idea that certain documents will fall within it. This core of documents, however, may not be all that the subpoena requires. The recipient is entitled to fair notice

of what is demanded, to reasonable specificlty, and is not to

be required to make difficult decisions about whether the

subpoena does, or does not, require documents of certain

kinds. Participation in, or knowledge of, the events giving

rise to litigation, is not a complete answer to criticism of expressions used in a subpoena. It is on this basis that I

approach the arguments as to the specific words used. Nor

does it assist Mr. Kenzie's argument to show that some

companies have produced documents in response to identical

subpoenas. It cannot be known at this stage whether such

production amounts	to a	sufficient	compliance	with	the
subpoenas.

The main argument put by Mr. Camilleri, and a m a ~ o r

argument of Mr. Holmes, was that the subpoenas were uncertam or ambiguous in a number of respects. Perhaps the most important of these arose from the presence of the phrase "in

I ' '

16.

the files of the Company" in the opening words of paragraph A of the schedule. Mr. Kenzie conceded that ~t was possible to read these words as qualifying three different aspects of

paragraph A, namely, all of the words preceding them, only

the words "all other documentary material", or all of the

words succeeding them. He submitted, however, that the

meaning of the opening words is clear if a sensible view is

taken of them. This aspect of the matter has troubled me,

but after considering accept Mr. Kenzie's argument. the matter carefully overnlght, I

To read the words " m the

files of the Company" as qualifying the succeeding words

would be recipients would be to give the subpoenas a strange meanlng. The

required to ascertain whether they had

files which related to any of the subjects listed in the

numbered sub-paragraphs, and to produce all of the documents

in those files. Such a reading would not, in my view, be a

sensible one in the sense referred to by Smithers J., with

whom the other two members of the court agreed in at

p.571. To read the words "in the files of the Company" as

qualifying only the words "all other documentary material"

would be to leave it unclear from what sources the recipients

were to procure letters, telegrams, etc., to comply with the

subpoenas. Again, in my view this would not be a sensible

reading. An ordinary person in the position of an informed

officer of a company receiving a subpoena in this form would

understand that the company was required to produce from its files all documents answering any of the descriptions in the opening words of paragraph A, relating to the subjects listed

in the numbered sub-paragraphs of that paragraph. Some

!

' .. *

r

17.

attempt was made to argue that the word "files" was

uncertain. I do not think so; I am satisfied that the phrase "the files of the company" would be understood by an ordinary

person to mean the records kept by the company, and would not cause distinctions to be drawn on the basis of whether or not a document had been placed within what might be described as

a "file" .

Other words and phrases were seized upon as being

potentially susceptible of different meanings, or as being

vague and undefined. Mr. Camilleri pointed to "decision" in

sub-paragraph Al, "participation" in sub-paragraphs A2 and B

and "authorization" in sub-paragraph A3. No doubt it might

be said that any word in the English language lacks

precision, in the sense that debate might take place as to

whether a particular event or ob~ect falls within its

meaning. Words may take their meanings from their contexts.

Taken to their logical conclusions, such arguments would rule out the creation of any legal documents, and particularly any

subpoenas, since no word could ever be found of such fixed

and precise meaning as to limit perfectly the command or agreement concerned. The legal system is founded on the

supposition that words do convey meanings. The words

"decision", "participation" and "authorization" do so, and

their meanings are reasonably ascertainable in the context of

the subpoenas. For instance, the subpoenas do not require

documents relating to any "decislon" in the abstract, but

documents relating to any decision to impliment Csic.3,

maintain, extend, limit or lift any of the alleged bans. It

would be unwise for me to attempt to give synonyms for the

words. Should there be found to be documents as to which

views mlght differ on whether they relate to the requislte

decisions, participation and authorisations, the fact that

views might differ would no doubt be a powerful factor in

mitigation of any suggestion of contempt of court in failing

to produce those documents.

It should also be pointed out that the subpoenas do not

require the r cipients to decide to which of the

sub-paragraphs a particular document should be assigned. If

a document might be said to relate to a "decision" to

implement a ban, or to "participation" in a ban, it must be produced, without any need to decide whether it relates to one or both of sub-paragraphs A 1 and 2. In this sense, the way in which the subpoena is expressed asslsts the recipient to comply with it.

A similar proposition meets the argument of Mr. Holmes

that the words "officer" and "employee" in sub-paragraphs Al, 2 and 3 are uncertain, and that questions of law may enter into the determination whether a person is an officer or

employee. The wording of the subpoenas is such as to require

production of the documents rrlating decisions, to

participation, or authorisations of any person who is an officer, employee or member of the respondent or one of its

branches, without there being any need to determine into

which of these categories a person falls. If there is real

doubt as to whether a person falls within any of those

C 4 ' .

l ?

.

contempt In €allin3 to ~rviuc.~ =. ~ i , - m m + r , t 7 ilr, n o t +t,Lnk

that it can be relied upon to eompei the z + k t l r , q ~ s l r i e ef th?

subpoena. Urmr .do I 'hlnk that there 1: substance ln the

ob~ections made by Mr. Holmps to t h e word "conduct" In

sub-paragraph A ? , or the presence In sub-paraqraph A Y , and

the absence from sub-paragraph	A 6	of the words	"or any	of
them".

One matter ralsed by both Mr. Camilleri and Mr. Holmes

arlses from the presence In sub-paragraphs A 6 , 7 8 and 9 and paragraph B of the words "or any .ath.er company wlth whlch your company had a sub-contract". In my view, the presence

of these words in the subpoenas is a vice. A reclpienk nay

have documents whlch mlght or miqht not answer one of the

descriptions to which these words relxts. In order to

ascertain whether t.he documents do aniwer that descrlption,

It mlght be necessary to make lnqulrles of a sub-contractor

without the inqulrer havinq any power to compel answers to

those inquiries. Mr. Kenzie conceded that no-one can be

compelled by subpoena to make such inquiries. He sought to

~ustify these words on the basls that a reclplent was only

bound to answer the subpoena from its own knowledge. In the

absence of information from a sub-contractor, however, a

reclpimt would be embarrassed in respondinq to the subpwr:a;

It would have no relevant knowledqe, and therefore no means

of somplylng with the subpoena. I do not thlnk that the

reclplents should be placed in such a posltlnn.

Mr. Kenzie submitted that th? ;lords "or any other

company wlth whlch your zcmplr.;. hart 3 s1~5 contra,:-t" ,3re

severable, and zhoulrl be 3evrlre.l. r;n as to leave ths

subpoenas oth-rwlsie Intact. Mr. Holmes and Yr. C311111et-l d ~ d

not attempt ta rebut thls arsument. Ir my v l e w , 1t 1s

correct. Incllentally, severance of those words overcomes

another argument of Mr. Holmes, namely tkat the words "since

1st January, 1936" ir sub-paragraph A7 m;idr that

sub-paragraph uncertaln, as it was unclear ;;hether they were

Intended to define the perlod f servlce of logs of clalms or

the period of having sub-contracts.

I therefore propose to dlsmiss the motions of Clvil and

Civic Pty. Ltd., and White Industries Limited. the subject of thelr notlces of motlnn on 20 March 1987, and to order those companies to comply wlth the subpoenas served on th-m,

subject to the deletion of the words "or any other company

with which your company had sub-contract" in sub-paragraphs

A 6 , 7, 8 and 9 and paragraph B. I shall hear counsel as to

an appropriate date for compliance.

21.

Mr. B . J . Camllleri and Mr. N.T. Street for

- the Applicants

Matthew Hall M chanical Electrical and

Engineering Pty. Llmited

J.M. Hargreaves and Son Pty. Limited

Thomas Clark and Son Pty. Limited

Wildridge and Sinclair Pty. Limited

Bruce and Sowter Pty. Limited

Crawford and Sanuel Pty. Limited

F.R. Coyle Pty. Limited

G . J . Melis Pty. Limited

Wormald International (Australia) Pty. Limited

Environ Mechanical Services Pty. Limited

Fire Fighting Sprinkler Services Pty. Limited

Brown and Moodie Pty. Lirnlted

Randwlck Plumbing Pty. Limlted

Instructing Solicitors : Cutler, Hughes and Harris

- Jennings	Construction	Limited
-

Barclay Bros. Pty.

Instructing Solicitors : Collin Biggers and Paisley

Mr. M.F. Holmes fo r

Limited

- Leighton Contractors Pty. Limited

- Sabemo Pty. Limited

Instructing Solicitors : Allen Allen and Hemsley

- White Industries Limited

- Civil and Civic Limited

Instructing Solicitors : Freehill, Hollingdale and Page

- Concrete Constructions Pty. Limited

- Concrete Constructions (New South Wales) Pty.

Limited

- John Holland Constructions Pty. Limited

Instructing Solicltors: Westgarth Baldlck

Mr. R.C. Kenzie Q.C., Mr. M. Moore and Mr. M. Kimber for the

Respondent

Instructing Solicitors : R.L. Whyburn and Associates