s.99 notification of industrial dispute

Appeal - amendment of summons to produce documents - whether leave should be granted to appeal - principles relevant to appeals against procedural or preliminary decisions.

[1] Comsec Trading Ltd and some 199 other entities (referred to jointly as the Comsec entities) seek leave to appeal from an order made by Vice President Lawler on 25 November 2003. By his order the Vice President set aside three paragraphs of a summons to produce documents. Leave is opposed by the Finance Sector Union of Australia (FSUA).

[2] In July 2003 the FSUA served a letter of demand and log of claims on the Comsec entities. On 26 August 2003, pursuant to s.99 of the Act, the FSUA notified the Commission of an alleged industrial dispute with the Comsec entities based on their rejection or non-acceptance of the log of claims. In due course the notification was listed for hearing. The Comsec entities indicated their intention to submit that there was no industrial dispute before the Commission and that, accordingly, the Commission had no jurisdiction to deal with the claims in the log.

[3] On 21 October 2003, at the request of the Comsec entities, the Commission issued a summons to Mr Anthony Beck, the National Secretary of the FSUA, requiring him to produce documents of various kinds. The documents were described in the summons as follows:

"1. Copies of all documents in relation to the logs of claim which allegedly give rise to the abovenamed proceedings (the logs of claim), including but not limited to drafts of the logs of claim and other documents created during the preparation of the logs of claim, that were sent to the companies listed in the attached Schedule 1 on or about 21 July 2003 and/or on or about 23 July 2003, but not including the logs of claim themselves.

2. Copies of all documents in relation to the authorisation by the Finance Sector Union of Australia of the service of the:

(a) logs of claim by ordinary post on the companies listed in the attached Schedule 1 on or about 21 July 2003; and

(b) logs of claim by registered post on the companies listed in the attached Schedule 1 on or about 23 July 2003; and

(c) notification of the hearing of an industrial dispute in relation to the logs of claim on or about 19 September 2003.

3. Copies of all documents created since 1 January 2003 in relation to any proposal, strategy and/or plan of the Finance Sector Union of Australia to seek an award and/or other industrial instrument with one, a combination of and/or all of the companies listed in the attached Schedule 1.

4. Copies of all documents, including but not limited to emails, letters and/or file notes, relating to all communications since 1 January 2003 between an officer or employee of the Commonwealth Bank Officers Section of the Finance Sector Union of Australia and an officer or employee of the National Office of the Finance Sector Union of Australia in relation to the information contained in or relevant to paragraphs 1 to 3 above.

5. Copies of all documents, including but not limited to emails, letters and/or file notes which show the number but not the names of current financial members of the Finance Sector Union of Australia in all of the companies listed in the attached Schedule 1."

[4] In proceedings before the Vice President on 24 November 2003 the FSUA submitted that paragraphs 1, 3 and 4 of the summons should be struck out. After hearing the parties the Vice President granted that application. He issued an order to that effect on 25 November 2003.[1] He published reasons for his decision on 26 November 2003.[2]

[5] The Comsec entities submitted that an appeal may be brought against the Vice President's decision and order. They relied on several paragraphs of s.45(1) including s.45(1)(b) and s.45(1)(g). It is not necessary to deal in detail with the competence of the appeal. We are prepared to assume that a competent appeal may be brought against the Vice President's order pursuant to s.45(1)(b). In the circumstances it is not necessary that we rule on various submissions about the proper construction of the various provisions of s.45(1).

[6] It is appropriate to set out the background to the order of 25 November 2003 in some more detail. It is accepted that the summons was properly issued pursuant to s.111(1)(s) of the Act. The FSUA's application to strike out paragraphs 1, 3 and 4 was made on the basis that the documents covered by those paragraphs were not relevant to the dispute finding and that the paragraphs constituted an impermissible fishing expedition. The Comsec entities, on the other hand, submitted that the documents described would shed light on whether a "real and genuine dispute" had arisen.

[7] The Vice President concluded that production of the class of documents described would not assist in the determination of whether a real and genuine dispute had arisen. This conclusion was based on a finding that the foundation of the Comsec entities' case on the genuineness issue was an allegation that the FSUA's sole purpose in serving the log was to attract the jurisdiction of the Commission so as to frustrate or neutralise the planned restructuring of part of the Commonwealth Bank of Australia. The restructuring referred to may be shortly described as the transfer of some functions from the Commonwealth Bank to some of the Comsec entities and the resignation of some Commonwealth Bank employees and their subsequent engagement by some of the Comsec entities for the purpose, in part, of carrying out some of the newly transferred functions. In the appeal proceedings the Comsec entities did not submit that the Vice President had made an error in the way in which he characterized their case on genuineness. We shall proceed on the basis that the case on genuineness turned on the question of whether the FSUA's sole purpose in serving the log was to attract the Commission's jurisdiction so as to frustrate the restructuring of the Commonwealth Bank in the way described.

[8] The Vice President concluded that the evidence received to that point indicated that there was a plausible motivation for the FSUA's service of the letter of demand and log of claims. That motivation was that the FSUA wished to obtain an agreement with the Comsec entities as to the wages and conditions to be afforded to the former Commonwealth bank employees who were taking up employment with the Comsec entities. In the circumstances the Vice President concluded that the argument advanced by the Comsec entities, that the FSUA's sole purpose in serving the letter of demand and log of claims was to thwart the Commonwealth Bank's restructuring, was untenable.

[9] It was submitted on behalf of the appellants that the Vice President prejudged the issue of genuineness and in doing so made an error which should be corrected on appeal. It was submitted that the only question was whether the paragraphs of the summons could produce material capable of affecting the genuineness question. Since the answer to that question must be in the affirmative, it was contended, the Vice President was in error.

[10] Assuming, as we have indicated, that the appeal is competent, we do not think this is an appropriate case in which to grant leave to appeal. There are three reasons.

[11] The first reason is that it is in the public interest to discourage appeals from preliminary or procedural rulings. This is an approach generally adopted by the courts and by the Commission. It is only necessary to refer to the well-known passage from the judgment of Sir Frederick Jordan in In re the Will of F.B. Gilbert (dec.):

"...I am of the opinion that,...there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal."[3]

The passage has been referred to with approval by the High Court and Full Benches of the Commission.[4] Permitting appeals against preliminary or procedural rulings may prolong the proceedings overall and favour well-resourced parties while working to the disadvantage of other parties. Given the number of procedural rulings which occur, the possibility of a multiplicity of appeals is one to be guarded against. There are other reasons why intervention by an appeal bench at an early stage may be undesirable. The Commission is capable of moulding its procedures to respond to evidentiary developments. Procedural rulings may be altered later in the case. For this and other reasons, until the final determination has been made it may not be possible to discern whether an appealable error has occurred. Even if error is patent at a preliminary stage, the party which is aggrieved by a procedural decision might ultimately be successful in the proceedings overall. In such a case any earlier appeal in relation to a procedural decision would be rendered futile.

[12] We do not mean to suggest that leave could never be granted in relation to a procedural or preliminary ruling. Clearly preliminary rulings which dispose of an application might warrant reconsideration on appeal, as might some rulings as to the Commission's jurisdiction. It would not be fruitful to attempt to define the cases in which leave might be granted. As will be apparent, we have concluded that no exception should be made to the usual approach in this case.

[13] The second reason why we think it is inappropriate to grant leave is that in this particular case it is clear that the Vice President's amendment of the summons was based on the material before him at the time and that he did not exclude the possibility that material or evidence might come to light which would justify a reconsideration of the position. While there might be some ambiguity on this point in the Vice President's decision of 26 November 2003, the position was put beyond doubt when the proceedings resumed on 11 December 2003. The following exchange is relevant:

"PN904 THE VICE PRESIDENT: Mr Douglas, in relation to the bank's position in respect of the balance of the summons, the part that I disallowed, do you anticipate calling any further evidence that may enliven that issue again?

PN905 MR DOUGLAS: Your Honour, that may well depend on the cross-examination of - - -

PN906 THE VICE PRESIDENT: Okay but I mean, that matter is obviously a decision that was made on the basis of the evidence before me and I do not rule out the possibility that you may be able to produce something which would re-enliven that issue, given that that was not in any way the determination of a separate question. But I'm interested to know whether or not there is some evidence that you have which you would be proposing to advance additional evidence that I'm not aware of because that affects the timing of programming.

PN907 MR DOUGLAS: Not at this time, your Honour but I'm unable to say what may come from the cross-examination."[5]

[14] The Vice President returned to the issue when the proceedings in relation to the dispute finding resumed on 2 February 2004. His Honour said this:

"PN1037 THE VICE PRESIDENT: The live issues in a matter, if it were a court of pleading, would be determined by the pleadings which would no doubt be verified by affidavit. Therefore an issue arises as how one determines what the live issues are in a proceeding and it seems to me that given the practical impact on the scope of the hearing that where genuineness is raised as an issue it needs to be more than a mere assertion. There needs to be some material and what I've yet to see from the Bank is material that puts this in issue to the point where it is a live issue and if such material is forthcoming and it may well emerge in the cross-examination of the union witnesses that would occur in the next couple of days if the adjournment is refused or if you don't get instructions to consent to the matter proceeding.

PN1038 If such material does emerge then it seems to me that the Bank is perfectly entitled or the Bank, the Comsec, and I use the Bank in the same way that paragraph 12 of the submissions refers to the Bank. Comsec and the other respondents are certainly entitled to have a summons which calls for the production of the documents that have been sought and have thus far been disallowed but it seems to me on the authorities it is clear that even if there is an extraneous purpose, if there is a genuine purpose then that's sufficient and on the material that's been put before me it certainly looks as though all the evidence points to there being at this stage, a genuine purpose."[6]

[15] These passages show that the Vice President was prepared to reconsider the question of what documents should be produced and indeed he invited the appellants to point to evidence or material which might indicate that his earlier decision should be reviewed. It may also be significant that, as the FSUA pointed out, no restriction was placed on cross-examination of the union witnesses and that, while the FSUA made its then National Secretary available for cross-examination, the Comsec entities declined to cross-examine him. Indeed there does not seem to have been any cross-examination directed to eliciting evidence to support the allegation that the FSUA's sole motive in serving the claims was to frustrate the restructure of the Commonwealth Bank. Nor was any submission made that the Vice President should reconsider his earlier ruling.

[16] Our third reason for declining to grant leave to appeal is that no issue arises of the Vice President having prejudged the argument to be advanced by the Comsec entities as to the genuineness of the FSUA's demands. Counsel made it clear in oral argument before us that the appeal is based squarely on jurisdictional error in relation to the amendment of the summons and there is no suggestion of a breach of the rules of natural justice.

[17] We should add that we can find no error in the Vice President's analysis of the authorities relating to the genuineness of demands made by a registered organisation. The application of those authorities in the dispute finding proceedings is not a matter on which we should comment, since that is not a matter before us.

[18] We are not of the opinion that the matter is of such importance that in the public interest leave should be granted. For the reasons given we refuse leave to appeal.

J Sackar SC with M McDonald of counsel for Comsec Trading Ltd and others.

A Gooley of counsel with A Neal for the Finance Sector Union of Australia.

3 [1946] NSWStRp 24; (1946) 46 SR (NSW) 318 at 323.

4 Adam P. Brown Male Fashions Pty Ltd [1981] HCA 39; (1981) 148 CLR 170 at 177. See, for example, Australasian Meat Industry Employees Union v Meat and Allied Trades Federation (1990) 33 IR 431 at 432.

6 C2003/2484, Transcript at [PN1037] - [PN1038].

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