CSL Australia Pty Ltd v Maritime Union of Australia

PERRAM J: 1 Before the Court is an application that the individual respondents give discovery. The application should be refused. 2 The matter arises this way: the applicant ('CSL') is a shipping line, the first respondent a union, and the second to sixth respondents were employees of CSL who are members of the union. CSL alleges in its proceeding that on 30 January 2016 the employees indicated to the Master of one its vessels, the bulk carrier CSL Melbourne, that they were not going to do their work. It is then alleged that they were formally directed by the Master to do their work or leave the vessel. They did neither and the ship was unable to sail. This process was then allegedly repeated. CSL then obtained orders from the Fair Work Commission that the industrial action stop. These orders were not obeyed. Proceedings were then commenced in this Court, which on 4 February 2016 ordered the employees to disembark from the CSL Melbourne. It is alleged that these orders were not obeyed. On 5 February 2016 the employees were, it is alleged, escorted from the vessel by the New South Wales Police. 3 By the current proceeding, CSL seeks the imposition of civil penalties on the union and the employees, damages for trespass and breach of contract, compensation under the Fair Work Act 2009 (Cth) and various other declarations. 4 Because the proceedings seek the imposition of civil penalties upon the employees, they each have a privilege against being ordered to disclose information or produce documents which may assist in establishing their liability: Australian Competition and Consumer Commission v FFE Building Services Ltd and Others (2003) 130 FCR 37 at 40. It is accepted by both sides that this privilege does not enure to the benefit of the union but that, all other things being equal, it does afford the employees an entitlement not to be required to put on a defence, serve witness statements or affidavits in advance of the trial or give discovery. 5 CSL submits that the employees have waived the privilege and should now be required to give discovery. An explicit order that they should put on their evidence in advance of the trial was not sought in the interlocutory application itself, but it was suggested that I should make such an order in some draft short minutes of order provided to me at the outset of the hearing. 6 The question in the current application is whether the penalty privilege has been waived. Two acts of waiver are relied upon. Both relate to proceedings commenced by the employees in the Fair Work Commission seeking reinstatement on the ground that they had been unfairly dismissed. In the preliminary phases of those proceedings, the Fair Work Commission made directions about the preparation of the cases for hearing. The proceedings are all relevantly the same for present purposes and the case of one of the employees, a Mr Doleman, may serve as a representative example. 7 On 20 April 2016 the Fair Work Commission issued a document entitled 'Notice of Listing', which informed the parties that the matter had been listed at 10.00am on Monday 4 July 2016 for an arbitration conference. Two directions were included in the document. In full they were as follows: DIRECTIONS 1. The applicant (Mr Wayne Doleman) is directed to lodge with the Fair Work Commission, marked attention UNFAIR DISMISSAL ROSTERS, and serve on the respondent, an outline of submissions and any witness statements and other documentary material the applicant intends to rely on in support of the application in this matter, by no later than noon on Monday, 9 May 2016. 2. The respondent (CSL Australia Pty Ltd) is directed to lodge with the Fair Work Commission, marked attention UNFAIR DISMISSAL ROSTERS, and serve on the applicant, an outline of submissions and any witness statements and other documentary material the respondent intends to rely on in opposition to the application in this matter, by no later than noon on Monday, 30 May 2016. (Emphasis in original.) 8 The employees filed witness statements and submissions as directed. The two acts of waiver relied upon by CSL are the filing of the unfair dismissal claims themselves and the subsequent filing of the witness statements. In relation to the present application, CSL sought to put the witness statements filed in the Fair Work Commission before the Court, but this was objected to by the respondents on the basis that, having been filed as a result of the Fair Work Commission's directions, they had been produced by the employees compulsorily and were subject to the implied undertaking referred to in Hearne v Street (2008) 235 CLR 125 that they not be used for a purpose unrelated to those proceedings. Since CSL had not sought leave from the Fair Work Commission to use the statements on the present application, it followed that they were, in effect, unlawfully obtained and should be rejected under s 138 of the Evidence Act 1995 (Cth).

Did filing the unfair dismissal claims constitute a waiver? 9 CSL's argument in relation to this issue turned upon the terms of the applications themselves. Again I will confine my attention to Mr Doleman's application. The application was in a form prescribed by the rules of the Fair Work Commission and included a section entitled 'Why was the dismissal unfair?'. Under this heading there were then set out nine paragraphs which were in the following terms: Background 1. The Applicant was employed as an Integrated Ratings aboard the CSL Melbourne since about 16 April 2013. 2. On 27 January 2016 the Applicant was handed a notice of the CSL Melbourne's removal from Australian waters to be returned to the international fleet and re-deployment and redundancies options would be consulted with the employees (attached and marked WD-3). 3. On 31 January the Applicant was handed a letter which alleged the applicant engaged in unprotected industrial action, and directing him to disembark from the CSL Melbourne (attached and marked WD-4). 4. On 5 February 2016 the Applicant and the other members of the crew were escorted from the CSL Melbourne at approximately 8:30am by more than 30 police officers. The Applicant was given approximately 10mins to gather his personal possessions. A number of personal items were left behind on the CSL Melbourne and have not been returned. 5. On 8 February 2016 the Applicant was issued a letter of termination effective 9 February 2916 (attached and marked Annexure WD-1). The reason given for termination was "serious misconduct" for taking "unlawful industrial action" from the 30 January 2016. 6. On 9 February 2016 the Applicant received a letter confirming termination of employment (attached and marked Annexure WD-2). Dismissal was harsh, unjust or unreasonable 7. The respondent did not meet its redeployment obligations; 8. The respondent did not comply with its consultation obligations; and 9. The applicant's conduct did not constitute "serious misconduct" and therefore the respondent's characterisation was disproportionate. (Errors in original.) 10 It will be seen that paragraph 5 refers to a letter of 8 February 2016 which apparently described the reason for the dismissal as 'serious misconduct' for taking 'unlawful industrial action'. CSL submitted that this letter was important when it came to read paragraph 9 of this part of the application, which was to be read as involving a positive assertion by Mr Doleman of the matters contained in CSL's letter. This meant that the paragraph was to be construed as accepting that the conduct alleged in the letter had in fact occurred, and therefore as putting forward a case which merely quibbled as to whether that asserted conduct was correctly characterised as 'serious misconduct'. The letter itself was attached to the application. There is no need to set it out. In effect, it recited the allegations I have set out above culminating in the removal of the employees from the vessel by the State police. 11 I am by no means sure that it is right to read paragraph 9 of the application as implicitly and affirmatively asserting all of the allegations contained in CSL's letter of 8 February 2016. Such a reading involves construing the word 'conduct' to mean 'conduct as alleged in CSL's letter of 8 February 2016', which looks like it may well be a bridge too far. It would be unusual in a document such as an application for reinstatement for unfair dismissal to understand the employee applicant as having positively asserted the whole of the employer's case against the employee. For myself, I would be disinclined to read such an initiating application in that way without a degree of clarity which I do not think Mr Doleman's document exhibits. 12 However, for the purposes of present argument, I am content to assume that the word 'conduct' can be read as a reference to the conduct alleged in the letter. So read, Mr Doleman only appears to be picking up the allegations made against him for the purpose of explaining why he did not think them sufficient to constitute serious misconduct. This falls very far short of constituting a waiver of the penalty privilege. That privilege may, no doubt, be waived but it is tolerably clear in relation to pleadings that the mere assertion of a pleading does not constitute a waiver of the privilege in relation to the issues raised by it. Such a waiver does not occur until a positive case at trial is actually advanced: Clayton Utz (a firm) v Dale [2015] VSCA 186 at [214] per Tate JA ('… neither the commencement of civil proceedings by Dale, nor his voluntary participation in the police interview, constituted a waiver of the privilege with respect to the 'issues' raised by the proceedings or in the interview.') 13 I reject the first act of waiver relied upon.

Did filing the witness statements in the Fair Work Commission constitute a waiver? 14 CSL sought to make good its case in relation to this second issue by putting into evidence the statements which the employees had filed in the Fair Work Commission. Objection was taken to this course by Mr Gibian of counsel, who appeared for the respondents, on the basis that the statements were subject to the implied undertaking referred to in Hearne v Street and could not be used in this proceeding without the leave of the Fair Work Commission. The existence of that obligation was not accepted by CSL for various reasons. In order to allow the hearing to advance, the tender of the statements was deferred until I determined the outcome of the Hearne v Street issue. 15 I do not think it is necessary, however, to do so. Whatever the statements say they cannot conceivably advance CSL's waiver of privilege argument. The delivery of a witness statement in advance of a trial, even voluntarily, does not constitute a general waiver of penalty privilege. It does, no doubt, constitute a waiver of the privilege in relation to the statement itself so that the privilege may not thereafter be relied upon by the employees to object to the tender by CSL of their statements. But there is no inconsistency between the waiver of that privilege and its maintenance in relation to other matters, such as the filing of defences and the giving of discovery. The New South Wales Court of Appeal held in Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412 that the fact that a witness in District Court proceedings had provided two signed statements did not mean that he had waived his privilege against self-incrimination and was therefore required to answer questions that might incriminate him whilst in the witness box. No doubt the privilege against self-incrimination is not the same as the penalty privilege but both may, in appropriate circumstances, be waived. What flows from Accident Insurance Mutual Holdings v McFadden is really only the point already made, namely, that there is no inconsistency between delivering a signed statement and otherwise maintaining the privilege. As Kirby P noted at 424: The witness may have been fixed with the written statements which he had already signed. But he was not obliged to go beyond those statements … 16 The same applies here. The employees have waived the privilege insofar as the statements are concerned (subject to any arguments they may have about the statements having been produced under compulsion) but that is as far as the waiver goes. They have not lost the right to avoid putting on defences, filing evidence or giving discovery. 17 In the same vein as Accident Insurance Mutual Holdings v McFadden is Gemmell & Anor v Le Roi Homestyle Cookies Pty Ltd & Ors [2014] VSCA 182, where it was held that the fact that answers had been given during a liquidator's examination did not result in a waiver of the penalty privilege in relation to discovery. The same reasoning underpins the conclusion of Finkelstein J in Australian Securities and Investments Commission v Mining Projects Group Ltd and Others (2007) 164 FCR 32 at [24] that an admission in a defence does not give rise to any more than a waiver of privilege in the admission itself. 18 Whatever is in the statements, therefore, it cannot have had the effect, as a matter of law, of causing the employees to have waived their penalty privilege. I would therefore dismiss the applicant's application. Had the tender of the statements been pursued, I would have rejected it on relevance grounds. But Mr Hatcher SC was clear that he did not wish to pursue the tender if the consequence would be that his client would be in breach of the Hearne v Street obligation. 19 I will hear the parties further on the form of the remaining procedural orders. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

SCHEDULE OF PARTIES NSD 156 of 2016 Respondents Fourth Respondent: RODNEY DOWNS Fifth Respondent: STEPHEN LESLIE DUNN Sixth Respondent: DAVID MIERS