Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union

1. The subpoena dated 18 October 2019 issued to the applicant be set aside.
2. The oral application by the second to thirteenth respondents to amend the schedule to the subpoena be refused.
3. The second to thirteenth respondents pay the applicant's costs of the interlocutory application dated 5 November 2019. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RARES J: 1 On 16 October 2019 I granted leave in chambers to the 12 individual respondents, to issue a subpoena for production addressed to the applicant, the Australian Building and Construction Commissioner. Background 2 On 10 October 2019 I refused the application for discovery of the first respondent, Construction, Forestry, Maritime, Mining and Energy Union, because it had made that application well after an appropriate time. On that occasion the individual respondents (who were separately represented) foreshadowed that they would issue three (unspecified) subpoenas. 3 Originally, the subpoena was couched in wider terms than the individual respondents' now seek to sustain. On 15 November 2019 their solicitor wrote to the Commissioner with an amended schedule and I will refer in these reasons to the subpoena as if it had been issued in the form of the proposed amendments. The amended schedule sought production of categories of documents that comprised all records held by the Commissioner, whether in written or electronic form: (1) concerning documents produced in answer to the Commissioner's requests or notices to produce addressed to the New South Wales Police Force and interviews conducted with four police officers and (2) otherwise concerning the events set out in each of the paragraphs of the amended statement of claim that the individual respondents have not admitted in their defences by reason of their exercise of their privilege to not expose themselves to a penalty, other than documents that the Commissioner had already filed and served as part of his proposed tender bundle on 9 August 2019, being documents in the form of any running sheet or file note stored on any internal case management system any correspondence between the Commissioner and Botany Cranes Pty Ltd, the company the subject of the industrial activity complained of in the proceeding correspondence between the Commissioner and the Police all statements prepared, taken or witnessed by the Commissioner's inspectors any transcript or record of interview. 4 During the course of argument the individual respondents sought, in the alternative that, if I were minded otherwise to set aside the subpoena, it be narrowed to seek only production of any running sheet. 5 The parties accepted that, first, this was a civil proceeding, although the individual respondents called in aid precepts from, or analogous to, those in the criminal law to support the validity of the subpoena, and, secondly, the question for decision was whether the subpoena had a legitimate forensic purpose that met the test of whether it was "on the cards" that the documents sought would materially assist the subpoenaing party in relation to the proceeding and that the subpoena did not amount to a mere fishing expedition, in the sense that Gibbs CJ had stated in Alister v McQueen (1984) 154 CLR 404 at 414. However, the parties differed on what the expressions in that test meant. The individual respondents' submissions 6 The individual respondents resorted to the definition in the Macquarie Online Dictionary to argue that the Chief Justice's expression "on the cards" referred to fortune telling cards rather than a game of cards. However, they also noted that in Attorney General New South Wales v Chidgey (2008) 182 A Crim R 536 at 551 [64], 555 [80] Beazley JA, with whom James and Kirby JJ agreed, had adopted the test that Simpson J, with whom Spigelman CJ and Studdert J agreed, stated in Reg v Saleam [1999] NSWCCA 86 [11] as follows: The principles governing applications of this kind are no different from those governing applications for access to documents produced in answer to a subpoena. Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is "on the cards" that the documents will materially assist his case. So much was established in earlier proceedings brought by this applicant: R v Saleam (1989) 16 NSWLR 14, per Hunt CJ at CL; see also R v Ali Tastan (1994) 75 A Crim R 498 per Barr AJ, as he then was. 7 The individual respondents argued that, although this was not a criminal proceeding, the claim for a civil penalty entailed that it should be regarded as quasi-criminal. They contended that all the substantive issues raised in the pleadings remained in issue and submitted that it could be readily assumed that the description of the documents sought in the subpoena would catch contemporaneous or early statements given by witnesses about the events the subject of the proceeding, including, but not limited to those in outlines of evidence of proposed witnesses that the Commissioner has served. They submitted that…"[i]t is on the cards that this information may show inconsistency with filed evidence." They argued that the degree of consistency between what may be in the Commissioner's documents and the evidence that witnesses whom he proposes to call may ultimately give, would assist them in formulating cross-examinations and could provide exculpatory matter not present in the outlines of evidence that the Commissioner has served. They contended that there was also potential for contamination of evidence by the Commissioner's inspectors, who may or may not be called to give evidence, that could then be explored to see if the inspectors had conferred with one another or other inspectors and had taken statements from other witnesses who will or may also be giving evidence. 8 The individual respondents did not contend that the Commissioner has any prosecutorial, or analogous duties. But, they submitted, a civil penalty proceeding has characteristics analogous to those in a criminal proceeding, including not only the privilege from self-exposure to a penalty, but also the degree of caution with which a court would draw inferences against them, having regard to the requirements of s 140 of the Evidence Act 1995 (Cth), and the limitations on a prosecutor calling evidence in reply. The individual respondents argued that it was likely that the documents sought in the subpoena would be able, materially, to assist them in their conduct of their defences. They also submitted that an answer to the subpoena may reveal evidence or witnesses who were available that might tell against the Commissioner's case, might assist them in their defence, or might support a submission that the Commissioner's case had failed to adduce evidence from particular witnesses whose evidence may not have favoured him. Consideration 9 In Commissioner for Railways (NSW) v Small (1938) 38 SR(NSW) 564 at 574-575 Jordan CJ said, in his celebrated judgment: Where the subpoena is addressed to a party, it is still necessary that it should state with reasonable particularity the documents which are to be produced: A-G v Wilson 9 Sim 526 at 529; Earl of Powis v Negus [1923] 1 Ch 186 at 190. It is true that a party, unlike a stranger, can be required to give discovery; but it is not legitimate to use a writ of subpoena duces tecum as a substitute for an application for discovery of documents, or as an alternative to an application for further and better discovery. Discovery applications should be made at the proper time and place. It would greatly impede the trial of actions at nisi prius, and impose an intolerable burden upon the presiding judge, if he were required from time to time to suspend proceedings and wade for himself through masses of documents for the purpose of endeavouring to determine whether any of them are relevant. Especially is this so when the documents may be called for whilst the case is still at the stage when it is difficult or perhaps impossible for the Judge to know what may become relevant and what may not. In the absence of special circumstances, e.g. Griebart v Morris [1920] 1 KB 659, a party is no more entitled to use a subpoena duces tecum than he is a summons for interrogatories, for the purpose of "fishing", i.e., endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all: Hennessy v Wright 24 QBD 445 at 448, or to discover the nature of the other side's evidence: Griebart v Morris [1920] 1 KB 659 at 666. Even if the documents are specified, a subpoena to a party will be set aside as abusive if great numbers of documents are called for and it appears that they are not sufficiently relevant: Steele v Savory [1891] WN 195. In the present case, the subpoena required the production of (inter alia)… (5) all documents, papers, reports and correspondence relating directly or indirectly to complaints about the running and control of electric trains. …it is evident, having regard to the principles which have just been examined, that those marked (2) to (5) inclusive are quite improper, and that it was a serious abuse of the process of the Court that the issue of a subpoena in this form should have been procured. (emphasis added) 10 In Lucas Industries Ltd v Hewitt (1979) 45 FLR 174 at 189 Smithers J, with whom Bowen CJ and Nimmo J agreed, said that "[t]he purpose of the process of subpoena is to facilitate the proper administration of justice between parties." He said that, applying Small 38 SR(NSW) 564, a subpoena should be set aside if its terms are in substance a notice for discovery (45 FLR at 188). 11 In Associated Dominions Assurance Society Pty Limited v John Fairfax and Sons Pty Limited (1952) 72 WN(NSW) 250 at 254 Owen J, with the agreement of Street CJ and Herron J, explained the concept of the expressions "fishing" and or a "fishing expedition". Owen J said that fishing for the purposes of discovery and interrogatories involved a party seeking to make out a case of which the party was "altogether ignorant". He cited with approval what Lord Esher MR said in Hennessy v Wright [No 2] (1888) 24 QBD 445n at 448: The moment it appears that questions are asked and answers insisted upon in order to enable the party to see if he can find a case, either of complaint or defence, of which at present he knows nothing, and which will be a different case from that which he now makes, the rule against "fishing" interrogatories applies. (emphasis added) 12 In Alister 154 CLR at 414, Gibbs CJ was addressing the position of a judge in a criminal trial in determining whether to inspect documents sought to be produced on subpoena over which there was a claim for public interest (or matter of state) immunity. He referred to Burmah Oil Co Ltd v Bank of England [1980] AC 1090 and Air Canada v Secretary of State for Trade [1983] 2 AC 394 and explained that there the majority of the House of Lords decided that in civil proceedings: where the Crown objects to the production of a class of documents on the ground of public interest immunity the judge should not look at the documents unless he is persuaded that inspection would be likely to satisfy him that he ought to order production; in the words of Lord Wilberforce in Air Canada v. Secretary of State for Trade [[1983] 2 AC at 439] , he must have "some concrete ground for belief which takes the case beyond a mere 'fishing' expedition"… Just as in the balancing process the scales must swing in favour of discovery if the documents are necessary to support the defence of an accused person whose liberty is at stake in a criminal trial (see Sankey v. Whitlam [(1978) 142 CLR at 42, 62] ), so, in considering whether to inspect documents for the purpose of deciding whether they should be disclosed, the court must attach special weight to the fact that the documents may support the defence of an accused person in criminal proceedings. Although a mere "fishing" expedition can never be allowed, it may be enough that it appears to be "on the cards" that the documents will materially assist the defence. (emphasis added) 13 Gibbs CJ noted that that their Lordships had concluded that before inspection in a civil proceeding were ordered "the documents should appear likely to support the case of the party seeking discovery" and had rejected the minority's test that it was enough that the documents should appear likely to assist any of the parties to the proceedings. 14 In Visy Industries Holdings Pty Limited v Australian Competition and Consumer Commission (2007) 161 FCR 122 at 147 [105], Lander J, with whom Moore J agreed, held that "…issues as to credit are matters which are not raised upon the pleadings and do not oblige the parties to give discovery or produce documents." 15 In Gloucester Shire Council v Fitch Ratings, Inc [2016] FCA 587 at [22]-[24], Wigney J discussed the authorities, when considering whether to set aside a notice to produce addressed to the respondent and a subpoena addressed to a bank. He concluded that the common theme of the various expressions of the applicable test of relevance, in the context of a challenge to a subpoena or notice to produce, was of a less stringent test than the test of relevance when considering the admissibility of evidence. His Honour considered that, because the proceeding before him was at a very early stage and the issues had not been clearly defined, the question of whether documents sought by subpoena had apparent relevance ought not be approached too narrowly or rigidly, having regard to the interest that there be a fair trial of the proceeding on the footing that all relevant documentary evidence would be available. Wigney J held (at [24]): A subpoena also cannot be used for the purposes of "fishing" or conducting a "fishing expedition". A finding of "fishing" amounts to a finding that the subpoena has no legitimate forensic purpose because the documents are sought to discover if the issuing party has a case, not to support a case that has already been articulated: Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575. A finding of "fishing" also appears to involve a question of oppression. 16 As Weinberg, Bennett and Rares JJ explained in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 at 477-479 [19]-[28] civil penalty proceedings have a long history that involve the use of civil, not criminal, procedures as an appropriate means to recover a civil penalty. 17 The Commissioner, as a regulator acting in a civil proceeding such as this, has no duty to call any particular witness. In Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345 at 403-414 [138]-[170] (especially at [141]-[143]) French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ rejected the proposition that, when seeking a civil penalty, a statutory regulatory agency, had to "…represent the truth, in the sense that the facts relied upon as primary facts actually occurred." They held that, assuming without deciding, a regulator were subject to a form of duty, even of imperfect obligation, that could be described as a duty to conduct litigation fairly, it did not follow that the consequences of the regulator's failure to call a witness could amount to a breach of that duty of the kind that a prosecutor owes in a criminal proceeding: Hellicar 247 CLR at 407 [152]. Their Honours concluded that any failure of the regulator to call the particular witness in their case could be dealt with by the conventional use of the ordinary inferences available from such a failure as explained in Jones v Dunkel (1959) 101 CLR 298; Hellicar 247 CLR at 412-413 [166]-[168]. 18 I am of the opinion that the individual respondents have failed to justify the validity of the subpoena. All of the individual respondents are alleged to have been present on the occasions of the conduct complained of. 19 First, the subpoena has the appearance of requiring the Commissioner to give discovery of a broad range of documents constituting his "file" for the proceeding: cf Small 38 SR (NSW) at 575. For example, the subpoena required him to produce "any file note stored on an internal ABCC case management system" concerning any of the very many events alleged in the statement of claim which the individual respondents have not admitted. That indicates the fishing nature of the subpoena. Secondly, the individual respondents also seek to use the subpoena for the purpose of obtaining material that might expose an inconsistency or omission by a potential witness in his or her oral evidence in chief at the trial based on a statement that might have previously been made or recorded. The individual respondents have not identified any matter of substance to support the use of the subpoena other than their speculation that amounts either to fishing for a case or hoping there might be an inconsistency or omission that, if disclosed, could possibly go to a witness' credit. The subpoena cannot be maintained on such a basis: Visy Industries 161 FCR at 147 [105] and too at [109]. 20 Ordinarily, a person who contemplates bringing any legal proceeding, civil, regulatory or criminal, will investigate beforehand whether there is a case to be made. The person (including a regulator investigating whether or not to bring a civil penalty proceeding) will gather information and evidence prior to commencing such a proceeding, often in the form of statements or what evidence witnesses can give of facts in issue or that might be in issue. Thus, it can be said that it is likely that the party will have documents in hard or electronic form relating to the circumstances in which the proceeding is brought and pursued. That does not mean that the mere existence of such a file establishes that it is "on the cards" that there will be a document or documents within that file that will materially assist the other party, were a subpoena to be issued that seeks production of all documents in it. There must be some concrete ground for belief that evidences or establishes that it is "on the cards" that one or more documents will be produced and their production may lead to such assistance; Alister 154 CLR at 414, Chidgey 182 A Crim R at 551 [64], Gloucester Shire [2016] FCA 588 at [24]. 21 I reject the individual respondents' argument that it is sufficient that there be a mere possibility that somewhere in the material, the subject of the subpoena, there might be found one or more documents, first, containing information that might suggest that when a witness, whom the Commissioner calls, gives oral evidence his or her testimony might be inconsistent with a record of a previous representation by that witness in such a document, or, secondly, revealing the potential existence of a document or witness who might be able to give evidence, but is not being tendered or called. There is nothing here that could possibly support an inference that it was "on the cards" that the production of such documents in answer to the subpoena would assist, let alone materially assist, in the individual respondents' case. 22 In my opinion the subpoena is fishing to see whether they can find something, which they cannot specify at this time, that might exist that would materially assist the case of any one or more of them. 23 In my opinion, the subpoena does not have a legitimate forensic purpose in this civil proceeding. It must be set aside. 24 I also reject the individual respondents' argument that, as an alternative, the subpoena should be narrowed or limited so that it requires the Commissioner to produce any running sheet concerning the plethora of issues about which the subpoena seeks material. In my opinion, that suggested "limitation" stands in no better place than the general terms of the subpoena. No doubt, it is likely that a running sheet may exist of the kind of which an example is in evidence. However, there is no evidence or other material before me to suggest that its production would materially assist the individual respondents' case or cases beyond the mere speculation that they have advanced to support the broader terms of the subpoena. Conclusion 25 For these reasons, I will order that the subpoena be set aside and that the individual respondents pay the Commissioners' costs of his interlocutory application. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.