| 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…
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- AGLC
- Vict v CFMMEU [2018] VSC 417
- Case
- [2018] VSC 417
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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