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VICT v CFMMEU

VICT v CFMMEU

Case [2018] VSC 417 31 July 2018

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Standing

Abuse of Process

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
EMPLOYMENT AND INDUSTRIAL LIST

S CI 2017 04871

VICTORIA INTERNATIONAL CONTAINER TERMINAL t/a VICT	Plaintiff
v
CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION	Defendant

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	4 June 2018
DATE OF RULING:	31 July 2018
CASE MAY BE CITED AS:	VICT v CFMMEU
MEDIUM NEUTRAL CITATION:	[2018] VSC 417

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PRACTICE AND PROCEDURE — Application to set aside subpoenas to non-parties — Supreme Court (General Civil Procedure) Rules 2015 r 42A.07 — Whether documents sought relevant to issues in dispute — Whether legitimate forensic purpose in seeking the documents —Volunteer Fire Brigades Victoria v Country Fire Authority [2016] VSC 573 — Webb v Wheatley [2015] VSC 153 — Application to set aside subpoenas partly allowed and partly disallowed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr H Borenstein QC with Mr Y Bakri	Maurice Blackburn Lawyers
For the Defendant	Mr J Snaden	Seyfarth Shaw Australia
For the First Subpoenaed Party, The Australian Mines and Metals Association	Mr R Dalton	Macpherson Kelley Lawyers
For the Second Subpoenaed Party, Master Builders Australia Limited	Ms Rebecca Sostarko

HER HONOUR:

On 12 April 2018, the defendant to these proceedings, namely the Construction, Forestry, Maritime, Mining and Energy Union (‘CFMMEU’), caused subpoenas to be issued to non-parties. The subpoenaed parties are the Australian Mines and Metals Association (Incorporated) (‘AMMA’) and Master Builders Australia Limited (‘MBA’). AMMA and MBA have lodged notices of objection to the subpoenas. The plaintiff, VICT, also objects to the subpoenas. This ruling determines whether or not the objections should be upheld.

Summary

For the reasons discussed below, I will disallow the objection to Category 1 of the subpoenas. I will allow the objection to Category 2 of the subpoenas. As to the objections to inspection on the ground of legal professional privilege, the parties claiming privilege will be required to itemise any documents over which privilege is claimed that fall within Category 1, and outline the basis upon which privilege is claimed in respect of each item.

Subpoenas

The two categories of documents sought from AMMA are below.

Category 1

1.Documents containing or recording communications between [AMMA], its servants or agents, including its legal representatives, and VICT, its servants or agents, including its legal representatives, relating to the contempt proceeding, including but not limited to:
a. the decision by VICT to commence the contempt proceeding;
b. the initiation by VICT of the contempt proceeding;
c.the relevance of the contempt proceeding to the amalgamation proceeding.

Category 2

2.Documents containing or recording communications between AMMA, its servants or agents, including its legal representatives, and [MBA], its servants or agents, including its legal representatives, relating to the contempt proceeding, including but not limited to:
a. the decision by VICT to commence the contempt proceeding;
b. the initiation by VICT of the contempt proceeding;
c.the relevance of the contempt proceeding to the amalgamation proceeding.

The two categories in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading VICT v CFMMEU

Details

AGLC: Vict v CFMMEU [2018] VSC 417
Case: [2018] VSC 417
Decision Date: 31 July 2018

CaseChat Overview and Summary

The parties in this matter were VICT and CFMMEU, with the dispute centering on subpoenas issued to non-parties. The case was heard in the Supreme Court of Victoria. VICT sought documents from non-parties via subpoenas, which CFMMEU sought to have set aside. The legal issues the court had to address were whether the documents sought were relevant to the issues in dispute and whether there was a legitimate forensic purpose in seeking them. The court was required to consider relevant case law, including Volunteer Fire Brigades Victoria v Country Fire Authority and Webb v Wheatley.

The court's reasoning involved an analysis of the relevance of the documents to the issues in dispute and the existence of a legitimate forensic purpose. The court found that some of the documents were relevant and that there was a legitimate forensic purpose in seeking them. However, the court also found that other documents were not relevant and that there was no legitimate forensic purpose in seeking them. As such, the court partly allowed and partly disallowed the application to set aside the subpoenas. The court's decision was based on a careful consideration of the relevant factors and the applicable case law.

The outcome of the case was that some of the subpoenas were set aside, while others were not. The court found that the documents sought in some of the subpoenas were relevant to the issues in dispute and that there was a legitimate forensic purpose in seeking them. However, the court also found that the documents sought in other subpoenas were not relevant and that there was no legitimate forensic purpose in seeking them. The final orders of the court reflected this outcome, with some subpoenas being set aside and others being allowed to stand. This decision provides guidance to parties in similar situations regarding the scope of subpoenas to non-parties and the factors the court will consider in deciding whether to set them aside.

Orders