VICT v CFMMEU
[2018] VSC 417
•31 July 2018
| 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 subpoena to MBA are identical.
Background
On 12 December 2017, McDonald J made orders concerning a picket at the Webb Dock Terminal (‘the injunction orders’). VICT operates from Webb Dock Terminal. The orders were directed at the Maritime Union of Australia (‘MUA’), the Construction, Forestry, Mining and Energy Union (‘CFMEU’), and various people including union officials. At that time, the MUA and CFMEU were named as the defendants to this proceeding.
Since the injunction orders were made, the MUA, CFMEU and another union have amalgamated to form the CFMMEU. The CFMMEU is named as the defendant to this proceeding. The amalgamation was approved by the Fair Work Commission (‘the Commission’). However, the decision to approve the amalgamation is currently under appeal.
On 30 April 2018, VICT filed an amended summons seeking orders that the CFMMEU be punished for contempt of court as set out in a Statement of Charges in the schedule attached to the summons. VICT seeks orders that the CFMMEU be punished for contempt in respect to some of the injunction orders. The Statement of Charge alleges the following.
The defendant:
(a)acting through its employees or officials, Mr Will Tracey, Mr Christopher Cain and Mr Joseph Italia;
(b)in breach of paragraph 2(i) of the [injunction orders]; and
(c)at approximately 3.15pm on Thursday, 14 December 2017,
was present within 100 metres of the entrance known as the ‘truck gate’ to the Victoria International Container Terminal premises at 78 Webb Dock Drive, Port Melbourne, in the State of Victoria.
Sub-paragraph (2)(i) of the injunction orders made on 12 December 2017 is as follows.
Until the trial of this proceeding or further order, the First Defendant, whether by itself, its officials, employees or agents (MUA officers), howsoever described, be restrained from:
(i)being present within 100 metres of any access point to the site identified in the map attached as Annexure A and known as the Victoria International Container Terminal, with the street address of 78 Webb Dock Drive, Port Melbourne, in the State of Victoria (Safe Space), save and except that an MUA officer may be present in the Safe Space to the extent that such presence is necessary for the purpose of:
(1)undertaking work that that person has been engaged to perform by or on behalf of the plaintiff;
(2)entering the site, where that entry is authorised by law;
(3)using a public road for reasons unconnected with the site; or
(4)compliance with these orders …
VICT, CFMMEU, AMMA and MBA have all filed written submissions and accompanying affidavits. In addition, oral submissions were made.
CFMMEU’s submissions
The CFMMEU relies upon the following facts, which are unchallenged by the parties.
Chronology
On 20 June 2017, the CFMEU, MUA and the Textile, Clothing, Footwear Union of Australia (‘TCFUA’) commence the process to amalgamate the three organisations by applying to the Commission pursuant to s 44(1) of the Fair Work (Registered Organisations) Act 2009 (Cth) (‘the RO Act’) for approval of a submission of a proposed amalgamation of the organisations to ballot.
On 4 August 2017, during a Commission hearing, AMMA and MBA inform the Commission that if the ballots were approved, they wished to make submissions as to whether the jurisdictional preconditions for fixing a date for the amalgamation in s 73(2) of the RO Act had been met.
On 14 December 2017 at approximately 3.15pm, the alleged contempt occurs. Approximately one hour later, VICT’s solicitors watch a video with the description ‘MUA officials break injunction’. The plaintiff’s solicitor says the alleged contempt is shown on the video.
On 12 January 2018, AMMA and MBA make a submission to the Commission that it should not be satisfied that the requirements in the RO Act have been met because there are civil penalty proceedings pending against the CFMEU and MUA (‘the first objection’). They submit that those proceedings are not excluded from consideration (pursuant to the exclusion for ‘civil proceedings’ in s 73(2)(c) of the RO Act).
On 2 February 2018, the Commission conducts a hearing in relation to the first objection and reserves its decision.
On 16 February 2018 at approximately 3.45pm, VICT’s solicitor informs MUA’s solicitor that VICT is intending to file contempt proceedings against the MUA. A few hours later, between 6.18pm and 6.29pm, VICT’s solicitors send five emails to this Court attaching a summons alleging contempt by the MUA and attaching other material in support.
Two days later, on Sunday 18 February 2018 at approximately 6.02pm, a solicitor acting for AMMA and MBA in the amalgamation proceeding sends an email to the Commission stating:
We wish to bring to the Commission’s attention that our client understands that there are now proceedings pending in the Supreme Court of Victoria that allege contempt by one of the Applicants. We submit that this is relevant to the Commission’s assessment of the necessary criteria under s 73(2)(c).
[‘the second objection’]
The following day, being Monday 19 February 2018, the Court issues VICT’s contempt summons. On the same date, the Commission makes directions for the filing of outlines of submissions and other materials in relation to the second objection.
On 22 February 2018, AMMA and MBA file a second outline of submissions and affidavit. They submit the Commission should not be satisfied that the requirement in s 73(2)(c) of the RO Act has been met because this contempt proceeding was pending against the MUA. They submit the contempt proceedings do not fall within the exclusion for ‘civil proceedings’ in s 73(2)(c) of the RO Act. The affidavit does not explain how AMMA and MBA became aware of the contempt proceeding by Sunday 18 February 2018.
On 28 February 2018, the Commission conducts a hearing in relation to the second objection and reserves its decision.
On 6 March 2018, the Commission publishes its decision and dismisses the first and second objections.[1] The decision fixes 27 March 2018 as the date on which the amalgamation is to take effect.
[1][2018] FWC 1017.
On 8 March 2018, AMMA and MBA file a notice of appeal in respect of the Commission’s decision, and apply for a stay of the amalgamation decision.
On 16 March 2018, the Commission dismisses the stay application.
On 27 March 2018, the amalgamation takes effect.
Abuse of Process
CFMMEU says that in light of the facts above, a strong inference can be drawn that the contempt proceeding is an abuse of process because it has been instituted for an improper or ulterior purpose. It says that the contempt application was made for the improper or ulterior purpose of impeding or delaying or prejudicing the pending application before the Commission to fix an amalgamation date for the amalgamation between the MUA, CFMEU and TCFUA. It says the issuing of the contempt summons was seriously and unfairly burdensome, prejudicial or damaging and/or productive of serious and unjustified trouble and harassment to the MUA, CFMEU and TCFUA in relation to their amalgamation and thereby prejudiced public confidence in the administration of justice.
There are two particular matters that the CFMMEU relies upon to draw the inferences concerning improper or ulterior purpose.
First, CFMMEU says that the delay between when VICT became aware of the contempt (based on its own affidavit material) and the institution of the contempt proceeding infers that it was not interested or motivated to pursue any remedy allowed in respect of it. VICT became aware of the alleged contempt and had evidence of it on 14 December 2018 at 4.15pm, but did not attempt to file the contempt summons until approximately two months later, after hours on Friday 16 February 2018.
Second, CFMMEU says that the solicitor for AMMA and MBA notified the Commission of the filing of the contempt proceeding before this Court had issued the summons, and sought to rely on it to initiate the second objection. This notification was made on the evening of Sunday 18 February 2018. The summons was not issued by the Court until the next day. There is a question of how the solicitor was aware. The timing points to a high level of collusion between VICT and AMMA or MBA. No one has offered any contrary inference or reason other than to block the amalgamation.
CFMMEU says that if it is accepted that these inferences can be drawn, then the question of relevance falls into line. It says that the Category 2 documents sought from AMMA and MBA are potentially relevant as a compliment to the Category 1 documents.
At the hearing of the contempt summons, CFMMEU will seek for it to be struck out or dismissed or permanently stayed for abuse of process and/or will rely on VICT’s conduct to make an application for indemnity costs. Given that, it says the subpoenaed documents are relevant to the issues of whether the contempt proceeding is an abuse of process and to the costs application.
CFMMEU says that the subpoenas are relevant to the issues that fall for determination by the Court and serve a legitimate forensic purpose of allowing it to have the opportunity to obtain documents to prove its case that the contempt proceeding is an abuse of process.
CFMMEU says that now that it has explained its reasons for which the subpoenaed documents are sought there is no substance to the objection that the subpoenas are an abuse of process and the objections must be dismissed.
In relation to the claims of legal professional privilege, the CFMMEU says that AMMA and MBA should produce the documents which answer the subpoenas and identify the documents over which privilege is claimed so that the Court can then decide the issue.
The CFMMEU has not filed a summons in respect of its abuse of process submissions. It says it can do so if required. However, it queries whether that is necessary given that VICT’s contempt application is already on foot by way of summons, and there is a timetable in place for the filing of submissions in respect of that.
VICT, AMMA and MBA submissions
VICT referred, in passing, to the technical argument that CFMMEU has not issued a strike out application. It says this is emblematic of the speculative nature of CFMMEU’s application.
To summarise, objections to the subpoenas are made on the grounds that they are irrelevant, have no legitimate forensic purpose, are an abuse of process, and in respect of AMMA and MBA, that some of the documents subpoenaed are subject to legal professional privilege. The objections are in respect of inspection and also partially in relation to production. The objections to production are made under r 42A.07 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’). The documents have been produced, with AMMA and MBA providing the documents over which privilege is asserted in a sealed envelope. Their objections were notified to the Prothonotary in accordance with r 42A.08(1) of the Rules.
AMMA and MBA adopted the submissions of VICT and made some further submissions.
I will now refer to some of VICT, AMMA and MBA’s submissions in more detail.
Relevance
VICT says that CFMMEU concedes that the subpoenaed documents are not relevant to the contempt proceeding itself. That is, they do not relate to the elements of contempt that the Court will need to consider.
VICT accepts that Category 1 documents are relevant or potentially relevant to the abuse of process point that CFMMEU will now run. However, there must be a legitimate forensic purpose for the documents and there is not.
In respect of Category 2 documents, VICT says the communications between AMMA and MBA are irrelevant. They cannot shed any light on why VICT commenced the contempt application. There is no connection with any issue which the Court may determine. AMMA and MBA say they are not a party to the contempt application nor this proceeding. They say the Category 2 documents are remote.
Legitimate Forensic Purpose
VICT says that the subpoenas are a device being used by the CFMMEU in order to find out whether it may avoid liability for contempt. VICT says there is no legitimate forensic purpose for the subpoenaed documents and that CFMMEU is fishing for documents in circumstances where it has no evidence to support its speculations. It says that, to succeed in its abuse of process application, the CFMMEU must prove the predominant purpose for it filing the contempt application was to frustrate the amalgamation. It has no evidence to support that.
VICT rejects the inferences that CFMMEU relies upon to support its abuse of process claim. VICT says the following:
(a) the contempt was not of an ongoing nature, and was not urgent;
(b) the contempt was a deliberate and obvious defiance of the injunction orders;
(c) there was some delay but it was not as significant as the CFMMEU says. The contempt application was prepared on either side of the Christmas break. The volume of material filed indicates the amount of work done. And so it cannot be said that VICT did nothing between the contempt and the filing of the contempt application;
(d) the delay shows just as much disinterest in the amalgamation proceeding as the contempt proceeding;
(e) the contempt action has not been an issue in the amalgamation proceeding since the amalgamation was approved in March 2018;
(f) if the CFMMEU’s analysis is accepted, then there would be no continuing use for the contempt action as the amalgamation has taken effect and there is no reliance on it in the appeal process; however what has occurred is that VICT persists with the contempt action and has filed evidence in support; and
(g) VICT has no idea of how the solicitor for AMMA and the MBA became aware of the contempt action being filed.
AMMA says that inferences cannot be drawn on the information cited by CFMMEU. One can infer someone informed the solicitor for AMMA and the MBA of the contempt action, but that does not mean there is a strong inference of collusion.
Abuse of Process
VICT says that CFMMEU’s abuse of process application is itself an abuse of process as it is for an improper purpose. It says the application cannot succeed because of chronological difficulties. The delay in issuing the contempt application tends against, rather than in favour of, the suggestion that there was collusion to frustrate the amalgamation process. The contempt objection played, at best, ‘a bit part’ in the amalgamation proceeding and is of no ongoing relevance to it.[2]
[2]Transcript, 4 June 2018, 17–18.
AMMA and MBA say the CFMMEU’s abuse of process application is itself an abuse of process as it is for collateral and improper purposes, namely to:
(a) cause unwarranted delay in respect of the contempt proceeding;
(b) embarrass them for no legitimate forensic purpose; and
(c) provide forensic insight into their confidential structures, systems and processes regarding their objection to the amalgamation proceeding and their appeal in respect of it.
In respect of the CFMMEU’s costs application in the amalgamation proceeding, the subject matter of the subpoenaed documents would have relevance to the question of costs, and so there is a prospect that CFMMEU is taking an improper advantage.
MBA says the subpoenas are oppressive as it must form a view on what documents are relevant.
Applicable Principles
The subpoenas were issued pursuant to r 42A of the Rules. It was not in dispute that VICT and the subpoenaed parties had standing to object to the subpoenas.
The relevant principles are not in dispute and have been stated by this Court many times. I recently outlined them in Suzhou Haishun Investment Management Co Ltd v Yue’e Zhao (Ruling No 2).[3]
[3][2018] VSC 144, [96]–[105]; references to ‘CPA’ as follows in this ruling are references to the Civil Procedure Act 2010.
Orders 42 and 42A of the Rules are relevant. Rule 42.04 provides for objections to subpoenas. The subpoenas were issued under Order 42A as subpoenas for production to the Prothonotary. Rule 42A.01 provides:
(1)This Order applies where a party who has a solicitor in the proceeding seeks to require a person not a party to produce any document for evidence before—
(a)the hearing of an interlocutory or other application in the proceeding; or
(b) the trial of the proceeding.
(2)Order 42 applies so far as is practicable to a subpoena to produce under this Order.
The procedure under r 42A.01 is only available where the document is potentially required for evidence at the hearing of an application or the trial of the proceeding. The effect of r 42A.01(2) is that Order 42 applies so far as is practicable to Order 42A subpoenas.
Rule 42.04 of the Rules provides:
Setting aside or other relief
(1)The Court may, of its own motion or on the application of a party or of any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it.
(2)An application under paragraph (1) shall be made on notice to the issuing party.
(3)The Court may order that the applicant give notice of the application to any other party or to any other person having a sufficient interest.
I adopt the follow [sic] statement of principles given by J Forrest J in [Volunteer Fire Brigades Victoria v Country Fire Authority]:[4]
[4][2016] VSC 573, [55]–[62] (‘Volunteer Fire Brigades’).
In Messade v Baires Contracting Pty Ltd,[5] I set out the principles in relation to the provision of documents in relation to the adequacy of a subpoena. With one exception (which is irrelevant here), those principles were adopted by the Court of Appeal in Woolworths Ltd v Svajcer:
[5][2011] VSC 56, [6].
(a)it is necessary for the party at whose request the witness summons was issued to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought;
(b)the identification of such a legitimate forensic purpose is to be considered by the court without inspecting the documents sought to be produced;
(c)the applicant for the witness summons must also satisfy the court that it is ‘on the cards’, or that there is a ‘reasonable possibility’, that the documents sought under the subpoena ‘will materially assist the defence’.
(d)a ‘fishing expedition’ is not a legitimate forensic purpose and will not be permitted;
(e)the relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose. There is no legitimate forensic purpose if the party is seeking to obtain documents to see whether they may be of relevance or of assistance in his or her defence.
(f)a mere assertion of bad faith by an applicant or that something might be found demonstrating bad faith is not enough – the criteria set out in (c) must be satisfied.
(g)in criminal proceedings a ‘more liberal’ view is taken by a court in respect of the application of the test. Special weight is to be given to the fact that the documents may assist the defence of the accused.
(h)where a party fails to demonstrate a legitimate forensic purpose, the court should refuse access to the documents and set aside the witness summons. [6]
[6][2013] VSCA 270 [16].
To this list, should now be added the considerations mandated by the CPA and particularly, the overarching purpose (and associated powers of the Court) which I have set out at [28]-[29].
The distinction between a subpoena issued under O 42A and discovery is important and was emphasised by counsel for CFA and the Government Departments. The obligation on the party subject to a subpoena has been considered in a number of decisions in NSW and in this state. The leading decision is that of the NSW Court of Appeal in National Employers’ Mutual General Association Ltd v Waind and Hill:
Upon the first step the person to whom the subpoena is addressed may seek to, and have, the subpoena set aside on the ground that it was improperly issued and an abuse of the power to compel the production of documents in any one of a number of ways. Such a case is where the subpoena is used for the purpose of discovery. The essential feature of discovery in this connection, as appears from Burchard’s case and Small’s case is that the person to whom the subpoena is addressed will have to make a judgment as to which of his documents relate to issues between the parties. It is oppressive to place upon a stranger the obligation to form a judgment as to what is relevant to the issue joined in a proceeding, to which he is not a party. Hence it is an abuse of the use of a subpoena to impose this obligation. It follows that it is an abuse to use any subpoena, i.e. even to a party to obtain discovery. This was the reasoning in Small's case. Of course, discovery as such is otherwise available to a party. It follows that a subpoena can only properly be used for the production of documents described in particular or general terms which does not involve the making of such a judgment. It does not follow, however, that because the party who issues a subpoena is unaware of the precise description of a particular document, or whether a particular document or documents is in the possession of the witness, or even whether it exists, or is unaware of its contents, that the subpoena, or even a subpoena in general terms, amounts to the use of the subpoena for the purpose of “discovery”. [7]
[7][1978] 1 NSWLR 372, 381–2.
There is also a point to be noted about subpoenas issued under O 42A, which was made by Kaye J in Newnham v Davies:
Subparagraph (1) of that rule specifically provides that the rule applies where a party seeks to require a person, not a party, to produce any document “for evidence” before the hearing of an interlocutory or other application in the proceeding, or before the trial of the proceeding. Thus, by its express terms the rule only authorises the issue of such a subpoena where the document, the subject of the subpoena, may potentially be admissible as evidence in the proceeding. Obviously, in order to be admissible, the document, of which production is sought, must have at least some potential relevance to the issues defined in the proceedings. [8]
[8][2010] VSC 13, [6].
The words ‘may potentially be admissible’ are important. In coming to his conclusion, Kaye J cited Kennedy Taylor (Vic) Pty Ltd v Grocon Pty Ltd,[9] in which Gillard J emphasised this qualification:
On a plain and literal interpretation of r 42.10, aided by the definition and the forms, it is inescapable that the procedure under s 42.10 is only available where the document is potentially required for evidence at the trial of a proceeding.
That is not to say that the procedure is not available if in the end result the document is not adduced into evidence but it is available to enable a party to inspect a document in order to make a decision whether or not to adduce it in evidence. [10]
The purpose for the rule was also considered by Beach J in Belsart Pty Ltd v Man Po Holdings (Australia) Ltd.[11] His Honour held that the rule was introduced to remove the inconvenience and injustice that could result from possible evidence produced on subpoena only being produced at trial.[12] As the above authorities indicate, the real question is not ‘admissibility’ at large – which is determined at trial - but rather relevance.
It follows then that in determining whether documents are to be produced under subpoena pursuant to O 42A, a court must be satisfied that the documents sought to be produced are potentially relevant (in the sense of s 55 of the Evidence Act 2008 (Vic): ‘the evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding’). But this Court on an interlocutory application should go no further.
I should add one further matter. Determining whether a subpoena is directed to discovery generally as opposed to matters of evidence is no easy task – particularly when it is not known what will be produced pursuant to the subpoena.[13] All of the authorities raised in oral submissions concerning the distinction between discovery and production pursuant to a subpoena predate the introduction of the CPA. The timely and efficient disposition of applications such as this cannot be achieved by trying to draw some form of bright line between the two categories – indeed I suspect this is impossible in this case. This is particularly so where the setting aside of a subpoena on the basis it amounted to discovery would result in an identical application being made under O 32.07 – with further delay and cost to the parties.[14]
[9][1999] VSC 242.
[10]Ibid [71]–[72].
[11][1998] VSC 46.
[12]Ibid [11]–[13].
[13]Burchell v Hill [2010] VSC 96.
[14]Reference is made above to [28] and [29] of J Forrest J’s ruling above. Those paragraphs referred to ss 7 and 55 of the CPA.
Section 55 of the CPA deals with discovery and is not relevant to this application. Section 7 is relevant. It provides that the overarching purpose of the CPA and the Rules ‘is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.’ Section 9 of the CPA is also relevant. Section 9(1) provides that the Court shall further the overarching purpose by having regard to certain objects in a civil proceeding.
Court’s powers to further the overarching purpose
(1)In making any order or giving any direction in a civil proceeding, a court shall further the overarching purpose by having regard to the following objects—
(a) the just determination of the civil proceeding;
(b)the public interest in the early settlement of disputes by agreement between parties;
(c) the efficient conduct of the business of the court;
(d) the efficient use of judicial and administrative resources;
(e)minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for—
(i) the fair and just determination of the real issues in dispute; and
(ii) the preparation of the case for trial;
(f) the timely determination of the civil proceeding;
(g) dealing with a civil proceeding in a manner proportionate to—
(i)the complexity or importance of the issues in dispute; and
(ii) the amount in dispute.
In Volunteer Fire Brigades, J Forrest J stated:[15]
[15]Volunteer Fire Brigades [2016] VSC 573, [32], [34] (emphasis in original).
There is no ambiguity about the application of the principles of the CPA. In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited[16] the High Court said of its NSW analogue:
[16](2013) 250 CLR 303 (‘Armstrong’); see also the observations of the Court of Appeal in Yara Australia Pty Ltd v Oswal (2013) 41 VR 302.
The evident intention and the expectation of the CPA is that the court use these broad powers to facilitate the overriding purpose. Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose.
That purpose may require a more robust and proactive approach on the part of the courts. Unduly technical and costly disputes about non-essential issues are clearly to be avoided. However, the powers of the court are not at large and are not to be exercised according to a judge's individualistic idea of what is fair in a given circumstance. Rather, the dictates of justice referred to in s 58 require that in determining what directions or orders to make in the conduct of the proceedings, regard is to be had in the first place to how the overriding purpose of the CPA can be furthered, together with other relevant matters, including those referred to in s 58(2). The focus is upon facilitating a just, quick and cheap resolution of the real issues in the proceedings, although not at all costs. The terms of the CPA assume that its purpose, to a large extent, will coincide with the dictates of justice.[17]
[17]Armstrong (2013) 250 CLR 303, 323 [56]–[57] (emphasis added).
…
The overriding consideration of the CPA is to ensure that the parties receive a fair trial i.e. ‘a just resolution’ to use the words of the CPA. However, a fair trial is not a perfect trial.[18] It is, rather, the best trial that a court can provide to the parties within reason and in proportion to the issues in dispute and the court’s resources. Accordingly, demands for discovery of documents which are peripheral to the central issues cannot be entertained. The Court is obliged to focus on the central issues as best it can be determined at this point in the litigation.
[18]Holt v Wynter (2000) 49 NSWLR 128, 142 [79]; see also Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.
There are numerous other authorities on subpoenas, and each party referred to some of them. It is unnecessary to refer to them all, some of which pre‑date the CPA. It is worthwhile noting that as J Forrest J observed in Volunteer Fire Brigades, the ‘Peruvian Guano test has been consigned to the dust bin’.[19]
[19]Volunteer Fire Brigades [2016] VSC 573, [33].
In Webb v Wheatley, Derham AsJ described fishing in the following manner.[20]
[20][2015] VSC 153, [53].
Because the plaintiff is self-represented, it is desirable to set out more fully what makes a subpoena a fishing expedition. It is an attempt to find out whether the person to whom the summons is addressed has or has not any documents relevant to an issue and, if so, what those documents are. In the Commissioner for Railways v Small,[21] Jordan CJ described fishing as endeavouring, not to obtain evidence to support the case, but to discover whether one has a case at all, or to discover the nature of the other side’s evidence. The most descriptive metaphor is the one used by Owen J in Associated Dominion Assurance Society Pty Ltd v Sir John Fairfax & Sons:
[21](1938) 38 SR (NSW) 564, 575.
A ‘fishing expedition’, in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purposes of finding out whether there are any there or not.[22]
[22](1952) 72 WN (NSW) 250, 254; see also Lyons v Kern Constructions (Townsville) Pty Ltd (1983) 47 ALR 114, 130.
The subpoena process cannot be used as a substitute for discovery by a party.[23]
[23]Commissioner for Railways v Small (1938) 38 SR (NSW) 564, 574.
In considering whether a subpoena should be set aside on the grounds that it was oppressive, Hill J in Trade Practices Commission v Kimberley Homes Pty Ltd[24] stated:
[24](1989) 217 ALR 110, 113–14.
It is a well-accepted rule that a subpoena may be set aside as oppressive and as an abuse of the process of the court if it requires the production of documents which are manifestly irrelevant to the issues between the parties. But the recipient of a subpoena, if a stranger to the litigation, will ordinarily not know what the real issues between the parties are. That is a matter which will be best known by the parties themselves. The rule would therefore have little real significance if a party to the litigation could not move the court to set aside the subpoena and so argue the question of relevance.
That rule is but an illustration of the wider rule that a subpoena will always be set aside if it is shown to be an abuse of the court’s process. The court has a real interest that its process be not abused but acceptance of the submission might well involve the proposition that the court could not act of its own motion. …
In Hamilton v Oades (1989) 166 CLR 486 at 502 ; 85 ALR 1 at 11 ; 15 ACLR 123 at 131–2 , Deane and Gaudron JJ said:
The inherent power of a court to control and supervise proceedings includes the power to take appropriate action to prevent injustice … [This power] is not restricted to defined and closed categories … In this context injustice is not simply a question of the purpose or motive for which the relevant proceedings were instituted but includes a consideration of the consequences of the proceedings for the person invoking the power.
The terms “oppressive” and “vexatious” are often used to signify those considerations which justify the exercise of the power to control proceedings to prevent injustice, those terms respectively conveying, in appropriate context, the meaning that the proceedings are “seriously and unfairly burdensome, prejudicial or damaging”, and “productive of serious and unjustified trouble and harassment”: Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 247 ; 79 ALR 9 at 45 ; 62 ALJR 389 at 411 per Deane J (Gaudron J agreeing).
In my view, once it is accepted that the court has inherent jurisdiction to prevent an abuse of its process it must follow that a party to proceedings before the court is entitled to move the court in respect of some action that has been taken by another party where it is alleged that that action constitutes an abuse of the process of the court. In my view, a party to proceedings in this court has standing to move to set aside a subpoena where it is alleged that the subpoena, in some way, constitutes an abuse of the court’s process and it is accordingly appropriate that the court be moved by way of a motion, notice of which is to be given to those affected by it.
In determining whether the filing of the contempt application is an abuse of process, the parties were in agreement that the relevant question to ask is: ‘what was the predominant purpose of VICT filing the contempt application?’[25] If the predominant purpose is improper, the proceeding may be an abuse of process.
[25]The parties referred to Walsh v WorleyParsons Limited (No.4) [2017] VSC 292: [177]–[181] and Williams v Spautz (1992) 174 CLR 509, 522.
Analysis
Neither VICT nor the subpoenaed parties contended that CFMMEU could not bring an abuse of process application in response to the contempt application. Consequently, relevance is framed by the statement of charges in VICT’s contempt application, and CFMMEU’s abuse of process submissions.
Category 1
Category 1 documents are relevant or potentially relevant to CFMMEU’s abuse of process application, as conceded by VICT. I consider that there is a legitimate forensic purpose for them. They may be for evidence in respect of CFMMEU’s abuse of process application. There is a reasonable possibility that the Category 1 subpoenaed documents will materially assist its application. Category 1 relates directly to the contempt proceeding and includes documents relating to the decision by VICT to commence and issue the contempt proceeding, and its relevance to the amalgamation proceeding.
I do not accept the submissions by VICT and the subpoenaed parties that CFMMEU is fishing in respect of the Category 1 documents. The facts upon which CFMMEU relies are uncontradicted. The inferences that it seeks to draw from them are arguable. Further, no evidence has been provided at this point to rebut them. For instance, there is no evidence from AMMA and MBA’s solicitor as to how he became aware of the contempt application prior to it being issued. The submissions made by VICT attempting to explain the delay are issues that are more appropriately ventilated at the hearing of the contempt application.
As to the submissions made by VICT about the contempt application playing at best, ‘a bit part’ in proceedings, that really focuses on the outcome.[26] It is common ground that the contempt application was relied upon. That AMMA and MBA were unsuccessful in relying upon it (at least at first instance in the Commission), does not address the real issue in dispute which arises before that outcome. That is, ‘what was the predominant purpose of VICT in filing the contempt application?’ The same analysis applies to VICT’s submission that the contempt application has no ongoing relevance to the amalgamation proceeding.
[26]Transcript, 4 June 2018, 17–18.
In relation to the submission by VICT that the CFMMEU’s application cannot succeed because of chronological difficulties, that is, that the delay in issuing the contempt application weighs against it being for the purpose of frustrating the amalgamation proceeding, that is an issue to be ventilated at the hearing of the application. The uncontradicted facts are that AMMA and MBA were able to make the second objection to the amalgamation referring to the contempt application, and it was an issue then considered and determined by the Commission.
As to the submissions that the CFMMEU’s application is itself an abuse of process, at this point in time, those submissions cannot be accepted.
Firstly, the contention that the abuse of process application has delayed the hearing of the contempt application has no factual basis. The hearing date remains as initially listed.
Secondly, the subpoenaed parties do not explain how the embarrassment they claim arises from the subpoenas equates to an improper or ulterior purpose. Embarrassment is not, of itself, a legitimate ground of objection to a subpoena. There is lack of precision to the submissions that CFMMEU will obtain forensic insight into confidential documents that are relevant to the amalgamation proceeding, and that CFMMEU may obtain an improper advantage regarding its application for costs in the amalgamation proceeding. These assertions are insufficient to conclude, at this point, that the CFMMEU’s application is an abuse of process.
MBA’s submission that the subpoenas are oppressive lacks a proper evidentiary foundation. I do not consider there is evidence they are seriously and unfairly burdensome, prejudicial or damaging. Further, Category 1 is precise. I do not consider it requires the subpoenaed parties to look beyond Category 1 in order to determine what documents are relevant to that category. Indeed, and although it is not determinative, I observe both that the documents have been produced and that they are not voluminous.
Category 2
I will disallow Category 2. There is no legitimate forensic purpose for it. The documents exchanged between the subpoenaed parties are not ‘for evidence’ in respect of VICT’s decision to commence the contempt application. There is no reasonable possibility that the documents could materially assist CFMMEU’s abuse of process application. Further, to the extent that they contain evidence (that is not hearsay) as to VICT’s decision to commence the contempt application, then those documents will be captured in Category 1 anyway.
CFMMEU made submissions, in the alternative, that the subpoenaed documents could materially assist its proposed costs application. For the same reasons as in the preceding paragraph, I do not accept that this forms a legitimate forensic purpose in respect of the Category 2 documents.
To allow Category 2 would be inconsistent with the overarching obligations in the CPA for the just, efficient, timely and cost-effective resolution of the real issues in dispute. As discussed above, in respect of the abuse of process application that issue is ‘what was the predominant purpose of VICT filing the contempt application?’
For completeness, I will make reference to a technical issue that was not the subject of any strenuous submissions. That is, that CFMMEU has not filed a summons in respect of its abuse of process application. There is already a summons on foot in respect of the contempt application. Further, there is a timetable in place for the filing of submissions in respect of that application. Nevertheless, it will be useful for the CFMMEU to file a summons in respect of its application to formalise the orders which it seeks.
Conclusion
I will hear the parties on the appropriate form of orders.
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