Construction, Forestry , Mining and Energy Union v BHP Coal Pty Ltd [2012] FCA 707 | Case summary

REASONS FOR JUDGMENT 1 This proceeding was commenced on 23 May 2012 and was the subject of an interlocutory application heard by Greenwood J on 24 May 2012 and determined by his Honour on 25 May 2012, for reasons which were published on 31 May 2012. In those reasons, his Honour noted that steps were being taken to determine whether an early trial date would be available in the proceeding. In the result, the proceeding was re-docketed to me and was the subject of orders made by consent on 22 June 2012. Those orders provided for the applicant to have leave to file and serve an Amended Application, for the trial to be on affidavit, for the parties to exchange their affidavits according to a timetable which ran to about early July 2012 and for the proceeding to be fixed for hearing over three days commencing on 10 July 2012. No orders for discovery of documents were made either then or at any other time. 2 By Notice to Produce served on the respondent on 20 June 2012, the applicant required the respondent to produce a wide range of documents "relating to", "referring to", "recording", "describing", "evidencing", etc, various matters. I have reproduced a copy of that notice as an appendix to these reasons. The requirement in the notice was expressed as follows: "The applicant requires you to produce the following documents or things before a Registrar by no later than 2 July 2012". By interlocutory application filed on 29 June 2012, the respondent applied for the notice to be set aside. Because the notice ostensibly required something to be done by the respondent no later than today, I listed the respondent's application for hearing, and the applicant raised no objection to my proceeding in that way. 3 At the outset I was informed by counsel for the applicant that it no longer required production of documents or things in categories 1, 3 and 5 of the Notice to Produce. I was informed also by counsel for the respondent that objection was not taken to category 2 of the notice and that it was proposed to provide documents covered by that category to the applicant by the end of business today. In the result, the question for present consideration is whether the notice should be allowed to stand with respect to categories 4, 6, 7 and 8. 4 In my view, the notice did not comply with r 30.28 of the Federal Court Rules 2011, in that it was not returnable at the trial, or at a hearing, of the proceeding, or at a hearing of a kind referred to in para (b) of subr (1). Rather, it required the respondent to produce the documents "before a Registrar" at no specified time and on no specified date, save that this had to be done "no later than 2 July 2012". That is not a procedure for which r 30.28 provides. Because there was no trial or hearing at which the notice was returnable, it had no effect under subr (2), and because the notice did not specify a date for production, subr (3) had no application. The requirement for five days' notice to be given under subr (3) merely avoids a situation in which, for example, the obligation for which that subrule provides might be enlivened by the giving of short notice immediately before the commencement, or during the course, of a trial or hearing. It does not permit the procedure to be used as a kind of coercive means to have another party produce documents to the Registry of the court outside the currency of a trial or hearing. The applicant's notice did, therefore, have no consequences under r 30.28. 5 Additionally, it is clear beyond argument that the applicant's notice - even confined to categories 4, 6, 7 and 8 therein - is an attempt to require the respondent to give discovery of documents according to the categories set out therein. The formulation of the obligation sought to be imposed on the respondent is in substance indistinguishable from that arising under a notice of discovery. I do not exclude the possibility that a notice to produce properly served under r 30.28 might describe the documents to which it refers by reference to their relation to particular subjects or issues. However, the wide-ranging nature of the present notice and its repeated reference to documents which relate or refer to things which may or may not have happened - by the use of such terms as "all documents relating to any allegations", "all documents referring to … any discussion … or consideration" and "all documents relating to any complaint made", realistically leaves no scope for any conclusion other than that the notice was in all but name a notice of discovery. Indeed, had the notice been a notice of discovery properly served, it is likely, in my view, that the applicant would have had some difficulty resisting the conclusion that it was fishing. 6 Under the Rules, discovery is no longer the entitlement of a party to a proceeding in the court. Discovery is now by order made on the application of the party seeking it. The often futile expense which is occasioned by the process of discovery has moved the court to refine its Rules in ways that are calculated to ensure that discovery is confined to situations in which it will make a genuine contribution to the just and efficient resolution of the proceeding in question. Sections 37M and 37N of the Federal Court of Australia Act 1976 (Cth) do, of course, provide an important context for the exercise of the court's discretion in the matter of discovery. It barely needs pointing out that indiscriminate recourse to the procedure for which r 30.28 provides has the very real potential to frustrate the achievement of the objects set out in these provisions, and to undermine the refinement of the discovery rules to which I have referred. The process adopted by the applicant in the present case is one which would bypass the need to obtain leave to have the respondent discover certain categories of documents, and to justify the scope of the discovery obligation before the court. Rather, that process would, in effect, place upon the respondent, as the recipient of a notice to produce, the onus of persuading the court that it need not comply with the notice, either at all or in particular respects. That the respondent ought to regard itself as under an onus of this kind has, indeed, been the drift of some recent correspondence from the applicant's solicitor which has been placed before the court. For there to be any such onus would, of course, turn the proper order of things upon its head. 7 In the view I take, the applicant's Notice to Produce cannot be justified either in point of procedure or in point of content. It cannot properly stand as the source of any obligation upon the respondent. 8 The question which next arises is what step the court should take to give effect to the conclusions which I have reached. The respondent has applied for the Notice to Produce to be set aside. Under the Rules of Court which governed such matters before 1 August 2011, the view had been taken that a notice to produce served in reliance on the provisions of O 33 r 12 of those rules could be set aside: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Emergency Transport Technology Pty Ltd (2011) 277 ALR 388 at 390 [9]-[11]. Rule 12 obliged the party served to produce the documents in question "unless the court otherwise orders". In Trade Practices Commission v Abbco Ice Works Pty Ltd (1994) 52 FCR 96, the case stated under s 25(6) of the Federal Court Act was framed by reference to an assumption that the court could either set aside a notice to produce or make an order otherwise under the express power in r 12 (see 52 FCR at 110). In the result, however, neither order was made, as the substantive basis for the objection to the notice was not upheld by the court. But the assumption reflected what was the practice of the court over many years, namely, that a notice to produce under O 33 r 12 was something which the court could, and in the right case would, set aside. 9 I have not, however, been able to find any explanation of the jurisprudential underpinnings of that practice, and on the present occasion the parties have neither the time nor, it must be said, the inclination to delve into the matter. Subject to that rider, the position seems to be as follows. Under O 33 r 12, the requirement to produce the document concerned had effect "without any need for any subpoena for production". The first occasion, apparently, upon which that phrase was judicially considered in this court was in CCOM Pty Ltd v Jiejing Pty Ltd (1992) 37 FCR 1, where Cooper J held that it had the effect that production of the document concerned under r 12 was "mandatory and not optional at the election of the party served" (37 FCR at 3). The same view had been taken of a corresponding rule under the Supreme Court Rules (NSW) in Caltex Refining Co Pty Ltd v State Pollution Control Commission (1991) 25 NSWLR 118, 123-124. In that case, Gleeson CJ said (at 124) that there was "for practical purposes, no relevant distinction between the notice to produce … and a subpoena duces tecum", an observation which was noted by Gummow J in his concurring judgment in Abbco (52 FCR at 132). 10 However, although a notice to produce has the same effect as a subpoena, it is not a subpoena, and the source of the obligation which it carries differs from that of a subpoena. Under the former rules a subpoena was, and under the present rules a subpoena is, an order of the court: see O 27, r 2(1) and r 24.12(1) respectively. Historically, such an order was made administratively by the court on the application of a party. Now (and since the amendment of O 27 r 6 of the former rules in December 2000) an applicant for a subpoena must obtain the leave of the court: r 24.01. But the subpoena, once issued, was and is an order of the court. As such, a subpoena may be set aside (r 24.15) as may, subject to the requirements of the rules in case in which an order has been entered, any order (rr 39.04 and 39.05). 11 By contrast, a notice to produce is not an order of the court, and is not converted into one by the terms of r 30.28(3). It is the subrule itself, in cases to which it applies, which obliges the party served to comply with the notice. If the obligation thus arising is to be negatived, the act of the court must relate to the operation of the rule, not to the notice. This was the effect of O 33 r 12 of the former rules, and is now the effect of r 1.34 of the present rules, which permits the court to dispense with compliance with any of the rules. That is, in my view, the appropriate source of the court's power to relieve a party upon whom a notice to produce has been served of the obligation to comply therewith. For the reasons I have given, I do not believe that "setting aside" is the correct approach to take in such a case. 12 The order proper to be made on the respondent's interlocutory application is that compliance with r 30.28(3) be dispensed with in relation to the applicant's Notice to Produce dated 20 June 2011. 13 The matter being before the court, counsel for the applicant sought to have the Notice to Produce dealt with as an application for an order to require the respondent to give discovery by reference to categories 4, 6, 7 and 8 of the notice. The respondent was content to have that course followed. Although the terms of r 20.11 of the Rules of Court enjoin a party from applying for discovery in the circumstances referred to, self-evidently they also stand as matters by reference to which the exercise of the court's discretion on an application for discovery should be influenced in important respects. That is to say, I should not grant the applicant the discovery which it seeks unless that course would "facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible". In this respect, the inescapable reality is that the trial of the proceeding is listed to commence in eight days' time and, although counsel for the applicant seem to regard the retention of this date as of less importance than enabling his client to have access to the respondent's documents, I could not share in that perception. The proceeding is covered by interlocutory orders and undertakings, and has been given expedition. I would regard the retention of the trial date as being of utmost importance. 14 Evidence has been led on behalf of the respondent, which I have not been invited either to reject or to treat with scepticism, to the effect that compliance with the Notice to Produce, even if limited as presently intended, would take a period well in excess of that remaining between now and the commencement of the trial. That same evidence was relied upon by the respondent in resistance to the applicant's now application for discovery. When considerations of this kind were discussed with counsel during the hearing this morning of the applicant's now application for discovery, I invited the parties to consider a truncated, and much more limited, form of order than is presently contemplated by categories 4 and 6, but incorporating elements of both. In the result, the respondent returned to court with a proposal for unverified discovery with which it considered it could comply by 1.00 pm on 5 July 2012. 15 After some discussion and for reasons which I made clear to counsel, I am persuaded that the respondent should be required, in place of the obligations proposed by the applicant's categories 4, 6 and 7, to give unverified discovery of the following documents: 1. Any document, including or comprising a report that was communicated to the respondent of observations made by a site lawyer or Verifact security personnel, of the use by employees in attendance at the protest outside the Saraji mine during 2011 and 2012 to date of language perceived to be offensive, including but not limited to the word, 'scab'. 2. Any document, including or comprising a report of observations made by any site manager or human resources staff member of the respondent, of the use by employees in attendance at the protest outside the Saraji mine during 2011 and 2012 to date of the word 'scab'. 3. Any document recording any disciplinary action taken in relation to any employee of the respondent as a consequence of the use by that employee of language perceived to be offensive including but not limited to the word 'scab' while in attendance at the protest outside the Saraji mine during 2011 and 2012 to date. 4. Any document recording a complaint made by the respondent to the Queensland Police Service about the use by employees in attendance at the protest outside the Saraji mine during February 2012 of language perceived to be offensive including but not limited to the word 'scab', and any document upon which any such complaint was based. 16 As I have indicated, the respondent has not taken objection to the production of documents covered by category 2 in the applicant's Notice to Produce, although it does maintain its objection to the validity and efficacy of the notice as such. In the circumstances, it will be convenient for the court to include documents of that category in the discovery orders which I propose to make, and I shall do so. With respect to category 8, I am unpersuaded that the material referred to therein has a sufficiently proximate significance to the present litigation to outweigh the detriment to the administration of justice which would be caused by the abandonment of the trial date, which the imposition of such a wide discovery obligation would necessarily involve. I propose to make no order along the lines of the applicant's original category 8. 17 At the request of the respondent, I shall reserve to it liberty to apply in case it should find it practically impossible to comply with the discovery obligations covered by the rulings which I have made above. I made those rulings based upon a certain understanding of the ability of the respondent to undertake electronic searches of the documents which lie within its control, and counsel pressed upon me the view that, given the shortness of time which has attended the disposition of these matters today, it was not possible for the respondent to give an unequivocal assurance, particularly with respect to some of the orders which I propose to make, that it could comply by 1:00 pm on Thursday as is proposed. It is for that purpose that I shall reserve liberty to apply. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Construction, Forestry , Mining and Energy Union v BHP Coal Pty Ltd

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