Stevedores Maritime industry

JUSTICE BOULTON SENIOR DEPUTY PRESIDENT POLITES COMMISSIONER DIGHT SYDNEY, 24 JULY 1996

Appeal against decision and certificates issued under ss.163D and 166A

On 1 June 1995 Commissioner Laing made a decision relating to various matters arising out of a major industrial dispute in the maritime and stevedoring industries in Western Australia [Print M2448]. In particular, the decision dealt with a request made by the Fremantle Port Authority (FPA) on 31 May 1995 for certificates to be issued under ss.163D and 166A of the Industrial Relations Act 1988 (the Act).

On 25 May 1995 the FPA gave notification to the Commission under ss.166A, 163A and 163D of the Act with respect to conduct being engaged in by the Maritime Union of Australia (MUA) and others as part of a major industrial dispute concerning the arrangements entered into between the Western Australian Coastal Shipping Commission (trading as Stateships)

and a new stevedoring company known as BAAC Pty Limited. Under s.166A, the FPA gave notice of an intention to bring an action in tort against the MUA in respect of conduct by or arising out of:

"(a)picketing of the premises of the Fremantle Port Authority and its tenants; (b)trespass upon the property of Fremantle Port Authority; (c)inducing the employees of the Fremantle Port Authority to breach their contracts of employment with Fremantle Port Authority; (d)interferences with the contractual and business relations between Fremantle Port Authority and others; (e)intimidation of employees of Fremantle Port Authority and of other persons with whom the Fremantle Port Authority is engaged in business transactions; and (f)a dispute between BAAC Pty Ltd and the Respondents."

Under s.163A the FPA notified the existence of an alleged boycott dispute with the MUA and others. Under s.163D the FPA notified the Commission that it sought to begin proceedings under s.163G and/or s.163H of the Act in relation to the boycott of the MUA and others.

By letter of 31 May 1995 the solicitors for the FPA notified Commissioner Laing that all operations at the Port of Fremantle had ceased due to strike action affecting all Ports in Western Australia and requested the immediate issue of certificates under ss.163D and 166A of the Act. The certificates were sought in relation to the notice given by the FPA on 25 May 1995 and also to a further notification given under ss.166A and 163D on 31 May 1995. Because of its significance we set out the terms of this letter in full:

"We refer to the facsimile from Mr Allen of this office this afternoon.

We are instructed that all operations at the Port have ceased as a result of strike action commenced at noon. It appears from discussions with the Union officials by officers of our client that this action relates, again, to a dispute between BAAC Pty Ltd and State Ships. Our client is not a party to that dispute. That dispute is a direct continuation of the dispute previously notified in our notice dated 25 May 1995.

We accordingly enclose a request for the immediate issue of certificates pursuant to our client's notice dated 25 May 1995, and further immediately request that the issue of certificates under the further enclosed notice. In our submission it is apparent that the Commission's

conciliation procedures have not been able, and are not likely to be able, to promptly resolve this dispute, which does not concern the Fremantle Port Authority in any way, and which will cause substantial injustice to the Fremantle

Port Authority if it is not able to act in the protection of its own interests by taking appropriate proceedings

which may be available to it. There are substantial considerations of public interest raised by the cessation

of Port operations, which has substantial and severe implications for the Western Australian economy.

Our client notes that some 6 days have elapsed since its notices of 25 May 1995 were lodged.

We enclose a copy of a further notice under Sections 166A and 163D of the Industrial Relations Act 1988 in connection with further industrial action which has today been taken by the Maritime Union of Australia and its members at the Port of Fremantle and other ports in Western Australia. This notice is issued out of an abundance of caution, as we believe that the action contemplated is within the scope of the first notice. However, to avoid any risk of a technical

defect in proceedings, we request the immediate issue of a further certificate under section 166A."

What transpired on 31 May following the receipt of this application for the issue of the certificates is as follows.

(i)The MUA was advised of the application made by the FPA. The MUA by its counsel indicated to the Commissioner that it opposed the issue of the certificates and that it wished to be heard in relation to the application before any decision was made.

(ii) The Commissioner then notified the FPA of the MUA's objection. The FPA thereupon forwarded a further

letter to the Commissioner, also dated 31 May 1995, in which it was submitted that the provisions of s.163D(3)(b) and (4) and s.166A(6)(c) left him no discretion with respect to issuing the certificates. It

was said that the condition in the provisions which gave rise to the obligation to issue a certificate was

satisfied upon the expiration of 72 hours from the boycott contravention or the giving of notice and that

there was no requirement for the Commissioner to afford an opportunity for further submissions.

(iii) The MUA, by its solicitor, also wrote to the Commissioner on 31 May 1995. The terms of that letter are as follows:

I refer to the various applications and notifications made by Freehill Hollingdale & Page on behalf of the Fremantle Port Authority. I understand that you are being pressed to issue a certificate under the Act tomorrow and prior to the hearing listed on Friday 2 June.

My clients object to the issue of any certificate or the doing of any other act by you in relation to this

matter. My clients intend, at the hearing, to demonstrate that the occasion for the exercise of any power under the Act in relation to certificates has not arisen and that you are without power to issue

same. My clients also object to the issue of any certificate or the doing of any act by you in relation

to this matter without them having the opportunity to be heard.

It is trite law that the Commission is bound to observe the rules of natural justice which include the rule that, prior to the doing of an act which affects or may affect a person such as my clients, the Commission is bound to afford that person a reasonable opportunity to be heard. Such an opportunity will not be available to my clients prior to the hearing scheduled for 2 June.

Should the Commission issue a certificate/s prior to my clients having been heard then proceedings for prerogative relief will be instituted immediately."

We note in passing that the letter does not detail the grounds upon which it is submitted that the Commission is without power to issue the certificates.

In his decision given on the following day, the Commissioner considered the relevant provisions of the Act and the submissions made in the correspondence from the parties. In relation to other applications before him for the issue of certificates concerning the notifications of tortious/boycott conduct given on 31 May 1995 (Matters C Nos. 60223 and 60224 of 1995), the Commissioner noted that the 72 hour period had not expired from the time of notification. Accordingly the Commissioner took the view that "there remains a discretion available to the Commission" and that the parties should be heard before making any decision on those matters. In relation to the request for the issue of certificates arising from the

notifications of 25 May 1995, the Commissioner took a different view and decided that no hearing was required. The Commissioner said:

"that the provisions of s.163D(3)(b) and s.166A(6)(c) are mandatory in their effect and that I have no option but to issue certificates in respect of the earlier applications as the required 72 hours has passed. Notwithstanding the very strong position put by Mr Schapper [for the MUA] and the possibility that Friday's conciliation proceedings

provides a small possibility that the matters in dispute may yet be resolved I consider that the mandatory statutory requirements of the relevant paragraphs override any other consideration and that I have no choice other than to issue

the certificates. In that regard I am bound to note that Boycott disputes include alleged Boycott disputes under

In these circumstances the Commissioner issued certificates under s.163A and s.166A of the Act on 1 June 1995 certifying pursuant to s.163D(3)(b) and s.166A(6)(c) "that the Commission has not stopped the industrial action to which the notice by the Fremantle Port Authority relates and that 72 hours has passed since the notice was given."

The MUA has sought to appeal against the decision of the Commissioner that there was jurisdiction to issue the certificates. The main ground relied upon in the appeal is that the Commissioner failed to observe the requirements of natural justice by proceeding to decide to issue the certificates without hearing the MUA.

Submissions in the appeal proceedings were presented by the parties in a hearing before the Full Bench on 21 September 1995. At the hearing, the MUA submitted inter alia that the Commissioner erred in issuing the certificates under ss.163D and 166A of the Act without evidence that all the prerequisites for the exercise of the powers had been made out and, in the case of the s.166A certificate, in circumstances

where it was said that the industrial action originally notified had ceased within 72 hours of its commencement. It was said that evidence could be led in support of these grounds, although certain inferences which would allow the appeal to succeed could be drawn from the documentary material before the Commission. The FPA submitted that the relevant conduct by the MUA had not stopped at the time the Commissioner issued the certificates and that the certificates had been properly issued.

Having regard to these submissions, we decided to give the parties an opportunity to present evidence in the appeal proceedings regarding the continuance of the conduct or action on the part of the MUA which provided the basis for the making of the certificates appealed against. For this purpose, pursuant to s.45(6) of the Act, Justice Boulton was directed to hear the evidence and report to the Full Bench.

Directions were given by Justice Boulton with respect to the filing of witness statements by the parties. The MUA filed a statement by Mr Terry Buck, a Joint Secretary of the Western Australian Branch of the MUA. The FPA did not file any witness statements.

"1. The BAAC dispute commenced on Friday 19 May 1995 with cargo being received at No. 1 and 2 Berth North Quay which is an area of the Fremantle Port Authority leased by BAAC. 2. A picket line commenced adjacent to the BAAC leased area on Friday 19 May 1995. 3. Stevedoring work ceased at approximately 0900 Tuesday

23 May 1995 throughout the State. 4. Employees at the Fremantle Port Authority also stopped work on Wednesday 24 May 1995. 5. Commissioner Laing handed down a recommendation on Friday evening 26 May 1995, which resulted in a resumption of work from the commencement of the day shift Saturday 27 May 1995. A total resumption of work was not effected until 1430 hours Saturday 27 May 1995 due to the inability of employers to allocate labour.

6. The picket line ceased on Saturday 27 May 1995. 7. Work continued totally unabated and without

interference on Sunday 28 May 1995, Monday 29 May 1995 and Tuesday 30 May 1995. During this period there was no industrial action of any nature effected against the Fremantle Port Authority by any employees who are members of the Maritime Union of Australia. 8. Industrial action did not occur again until noon Wednesday 31 May 1995."

Mr Buck was cross-examined on his statement by the solicitor for the FPA, Mr D. Ellis, in proceedings before Justice

Boulton on 15 December 1995. Mr Ellis concluded his cross- examination subject to the determination by the Commission of an application by the FPA for the issue of summonses to the Secretary of the MUA and the Secretary of the Western Australian Branch of the MUA. It was indicated by Justice Boulton that the application for the summonses would be determined by the Full Bench. The parties were directed to file written submissions on the issues raised during the proceedings and it was said that these submissions, together with the statement of Mr Buck and the transcript of the proceedings on 15 December 1995, would provide the basis for the report to the Full Bench.

We have considered the report by Justice Boulton and the material and submissions before the Commissioner and the appeal bench.

The appeal raises important questions regarding the jurisdiction of the Commission to issue certificates allowing a party to commence actions for an injunction or damages and it is therefore appropriate that leave to appeal be granted under s.45(2) of the Act. Indeed we were advised that the s.166A certificate has provided a basis for the FPA to commence proceedings in the Supreme Court of Western Australia and that the FPA has obtained a default judgment against the MUA in those proceedings. The MUA has made application to the Supreme Court to have that judgment set aside.

The main submission of the MUA in the appeal proceedings was that the Commissioner failed to observe the requirements of natural justice, and thereby satisfy himself that he had jurisdiction, in that no opportunity was given for the MUA to present argument as to whether the prerequisites for the granting of the certificates were satisfied.

We deal firstly with the certificate issued by the Commissioner under s.163D of the Act and then with the s.166A certificate.

Section 163A of the Act provides for the notification of boycott disputes to the Commission. Upon such notification, the Commission must take immediate steps to exercise its conciliation powers in relation to the boycott dispute and must complete the exercise of those powers as quickly as possible (see ss.163B and 163E).

Section 163D provides for the Commission to issue certificates in certain circumstances. The section provides:

"(1) If, after the Commission starts to exercise conci liation powers in relation to a boycott dispute, the Commission thinks that it is not likely to be able to settle the dispute promptly, or otherwise to stop the boycott or alleged boycott promptly, the Commission must immediately certify in writing to that effect. (2) The Commission may certify under subsection (1) on its own initiative or on application by a party to the dispute. (3) If a party to a boycott dispute tells the Commission that the party wants to begin a proceeding under section 163G or 163H in relation to any boycott conduct to which the dispute relates and:

(a)the Commission decides that it would cause substantial injustice to the party if the party were prevented from beginning the proceeding while the Commission is exercising conciliation powers in relation to the dispute; or

(b)a period of 72 hours has elapsed since the boycott contravention that constituted or gave rise to the boycott conduct;

the Commission must immediately certify in writing to that effect.

(a)conduct constituting a contravention of section 162 stops before the end of 72 hours after it started; and (b) after the conduct stopped another contravention of that section occurs; and (c)in the Commission's opinion the other contra vention is substantially related to the first mentioned contravention;

the other contravention is taken, for the purposes of paragraph (3)(b), to have occurred when the first mentioned contravention started."

The powers of the Industrial Relations Court with respect to applications for injunctions and actions for damages in relation to boycott conduct are set out in ss.163G and 163H of the Act. The Court does not have jurisdiction with respect to a matter arising in relation to a boycott dispute unless the Commission has given a certificate under s.163D in relation to the matter (see s.163P).

In relation to the certification by the Commissioner pursuant to s.163D(3)(b) it was not disputed by the MUA that 72 hours had elapsed since the industrial action complained about commenced. This was because of the operation of s.163D(4) which allows separate episodes of conduct to be treated as one continuous occurrence. However it was submitted by the MUA that it was not sufficient under s.163D(3)(b) merely to show that 72 hours has elapsed since industrial action first took place. It was said that the section only applies if there is a "boycott dispute", "boycott contravention" and "boycott conduct" as defined under ss.156, 162 and 163 of the Act and that these were matters upon which the MUA sought to be heard. Further it was said that no opportunity was given for the MUA to argue the applicability of the exemption under s.162A for peaceful picketing. The MUA submitted that the Commissioner erred in issuing the certificates without concluding that all the prerequisites for the exercise of the power had been made out and without evidence to this effect. In this regard it was noted that the certificate issued refers to "industrial action" and "72 hours has passed" rather than any alleged boycott contravention.

The nature of the hearing required to give procedural fairness to a party depends on all the circumstances of the particular case. In Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475 at 504, Kitto J said:

"As Tucker LJ said in Russell v Duke of Norfolk [1949] 1 All ER 109, in a passage approved by the Privy Council in University of Ceylon v Fernando [1960] 1 All ER 631 (at 637), there are no words which are of universal application to every kind of inquiry and every kind of tribunal: `the

requirements of natural justice must depend upon the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth.' What the

law requires in the discharge of a quasi-judicial function is judicial fairness. That is not a label for any fixed

body of rules. What is fair in a given situation depends on the circumstances."

These passages were approved by the High Court in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552-553.

In the circumstances of the present matter we are of the view that the Commissioner was not obliged to give the MUA any

further opportunity to be heard on the matters sought to be raised in relation to the s.163D certificate than that which was given on 31 May 1995. This is because of the scheme of the Act and the proceedings which had previously been conducted by the Commissioner in relation to the dispute.

We consider that this conclusion is consistent with the scheme of the Act, in particular, Division 7 of Part VI of the Act, and with the role assigned to the Commission in dealing with boycott disputes. Division 7 provides for the notification of boycott disputes to the Commission and for the exercise by the Commission of conciliation powers with respect

to such disputes. The Commission is obliged to act quickly in the exercise of its powers (see s.163B). If the Commission thinks that it is not likely to be able to settle the dispute promptly, it must immediately certify in writing to that effect (s.163D(1)). Such a certificate will allow proceedings for an injunction or damages to be brought in the Court (see s.163P). Where a party tells the Commission that it wants to bring such proceedings in relation to any boycott conduct to which the dispute relates and 72 hours has elapsed since the boycott contravention that constituted or gave rise to the boycott conduct, the Commission must immediately certify to that effect (s.163D(3)(b)). In proceedings for an injunction (s.163G) or damages (s.163H) the parties will have a full opportunity to put submissions regarding the relevant facts and legislative provisions and the Court will determine whether there has been a boycott contravention or boycott conduct within the meaning of the Act.

In the present matter, the notice of intention to commence legal proceedings was first given by the FPA to the Commission

on 25 May 1995. There was a conference before the Commission on 26 May 1995 in which the MUA was represented by its solicitor. The 72 hour period expired on 28 May and on 31 May 1995 the FPA requested the issue of the certificates. Although the Commissioner did not list this request for hearing, the solicitor for the MUA wrote to the Commissioner objecting to the issue of the certificates without his clients being given an opportunity to be heard. It was indicated that the MUA intended at the hearing to demonstrate that the occasion for the exercise of any power under the Act in relation to the issue of certificates had not arisen and that the Commissioner was without power to issue such certificates.

In the circumstances of the present matter we do not doubt that the Commissioner was satisfied that he had jurisdiction to deal with the notifications before him. The developments relating to the Western Australian maritime and stevedoring dispute were well known to him and the notifications of 25 May 1995 had been the subject of a conciliation conference called by the Commissioner on 26 May 1995. We are not aware that there was any challenge by the MUA to the Commissioner proceeding to deal with the dispute by conciliation. The functions of the Commission were exercised pursuant to the provisions of Division 7 of Part VI of the Act which include obligations upon the Commission with respect to the issue of certificates. The MUA only sought to raise jurisdictional issues when the FPA requested the Commissioner to issue certificates and even then no details were given as to the specific jurisdictional issues relied upon. We do not believe that at that stage the Commissioner was obliged to embark upon what might have become a complicated and lengthy enquiry in relation to the jurisdictional issues sought to be raised by the MUA. Although the Commission must satisfy itself that it has jurisdiction in a matter before it, it was not necessary for the Commissioner to become involved in a detailed legal examination as to whether the conduct that was taking place came within various complex definitions in the Act. The urgency of the provisions of the Act does not support allowing

a party to delay access to the Court in this way. The Commission's function within the scheme of Division 7 is to attempt as quickly as possible and by the exercise of its conciliation powers to resolve boycott disputes or to stop boycott conduct. In circumstances where the Commission is unable to do so, it is obliged to promptly issue certificates which allow the parties access to the Court.

Accordingly for the above reasons we do not consider that the appeal against the s.163D certificate should succeed.

We now turn to deal with the certificate issued by the

Commissioner under s.166A of the Act. In its request to the Commissioner, the FPA sought inter alia the issue of a certificate under s.166A(6)(c) on the basis that the conduct to which s.166A(1) applied had not stopped by the end of 72 hours after the notice was given. It was this ground which was accepted by the Commissioner. As we noted above this position was contested by the MUA and in the appeal proceedings evidence was presented in support of the MUA's position.

Section 166A provides that certain actions in tort may not be brought against an organisation of employees or its officers, members or employees in relation to conduct "in contemplation or furtherance of claims that are the subject of an industrial dispute" unless a certificate is obtained from the Commission (subsection 166A(1)). A person who wants to bring an action in tort may give written notice to this effect to the Commission (subsection 166A(3)) and in such circumstances the Commission is obliged to take immediate steps to try to stop the conduct (subsection 166A(5)). Subsection 166A(6) provides for the circumstances in which certificates may be issued by the Commission allowing a person to proceed with an action in tort. The subsection provides:

(a) after the Commission starts to exercise conciliation powers in relation to the industrial dispute it forms the opinion that it is not likely to be able to stop the conduct promptly; or (b) the Commission decides that it would cause substantial injustice to the person who gave a notice under subsection (3) in respect of the conduct if the person were prevented from bringing

the action to which the notice relates while the Commission is exercising conciliation powers in relation to the industrial dispute; or (c) the Commission has not stopped the conduct by the end of 72 hours after the notice was given under subsection (3) in respect of the conduct;

the Commission must immediately certify in writing to that effect."

In relation to s.166A(6)(c) it was submitted by the MUA that the Commissioner was clearly in error in deciding that its provisions applied. This was because the industrial action and picketing which was referred to in the notice given by the FPA on 25 May 1995 had stopped prior to 31 May 1995. It was said that the industrial action and picketing stopped on 27 May 1995 after the Commissioner made various recommendations designed "to establish the relevant facts" and the application of the status quo including the loading of a ship "according to past custom and practice". It was acknowledged by the MUA that further industrial action and picketing took place on 31 May 1995 and that this was what prompted the FPA to notify the Commission again under s.166A (Matter C No. 60224 of 1995) and to seek certificates from the Commission. However it was submitted that the requisite 72 hours had not elapsed in relation to either of the s.166A notifications when the Commissioner issued the certificate. In this regard it was noted that there is no provision similar to s.163D(4) applicable in relation to alleged tortious conduct.

We turn to examine these arguments. We noted above that in the correspondence sent to Commissioner Laing on 31 May 1995 the MUA asserted that there was no power to issue the certificate sought by the FPA, although the reasons why it was asserted that the Commissioner was without power to issue the certificates were not specified. On the other hand the FPA asserted in correspondence that the Commissioner had no discretion but to issue the certificates.

We consider that the Commissioner was placed in a very difficult position by this correspondence but in all the circumstances we think he had a duty to satisfy himself that he had power to issue the certificate. In this respect we think he was obliged to give the parties an opportunity to make submissions on the matter. We do not envisage that this necessarily needed to be by way of an oral hearing; written submissions may have sufficed. Indeed as the Commissioner was not in Perth on 31 May 1995 and having regard to the clear legislative intent of s.166A which is to the effect that the Commission must expeditiously discharge its functions under the section and not unnecessarily delay a party wishing to bring an action in respect of tortious conduct we consider that giving the parties an opportunity to make written submissions might have been the most appropriate course.

Be that as it may, the position which confronts this appeal bench is that the Commissioner's jurisdiction to issue the certificate was challenged and no hearing was afforded in relation to that challenge. In those circumstances we think the appropriate course for this appeal bench is to allow the

appeal and to determine for itself what action should be taken in relation to the FPA's request for a certificate.

We have adopted this course in part because in our Statement of 16 October 1995 we had indicated to the parties that they would be given an opportunity to present evidence in the appeal proceedings regarding the conduct or actions on the part of the MUA which provided the basis for making the certifications appealed against. The main reason for the appeal bench deciding to give the parties the further opportunity to present evidence was the conflicting submissions as to whether industrial action by the MUA had ceased within 72 hours of its commencement.

The MUA lead the evidence of Mr Buck which we have set out earlier. However the FPA chose not to lead any evidence at all. It simply sought to have summons issued against two officials of the MUA requiring the production of all documents under the control of the Union and its Western Australian Branch relating to the disputes with Stateships and with the FPA and the industrial action taken during the period 19 May 1995 to 13 June 1995 by or involving the MUA, its officers, members or employees of the FPA or of other ports in Western

Australia. Only in written submissions, following the hearing of Mr Buck's evidence, did the FPA seek to rely on conduct which was said to be broader than the strike action and picketing by the MUA against the FPA and which was said to be specifically identified in the document requesting the issue of a certificate set out earlier.

In effect in its written submissions the FPA submitted that the conduct the subject of the notifications went beyond industrial action against the FPA and extended to conduct which was directed against some person other than the FPA, which involved persons other than employees of the FPA and which did not involve overt industrial action. These were issues which were not expanded upon in the FPA's request to the Commissioner for the issue of the certificate and about which no evidence was lead by the FPA before us despite the

We accept the evidence of Mr Buck that as a result of the Commissioner's recommendation made on 26 May 1995 strike action and picketing which had effected the FPA ceased. Moreover, it is to be noted that Mr Buck in his evidence asserted that during the period 28, 29 and 30 May 1995 there was no industrial action of any nature against the FPA by any employees who are members of the MUA.

There is simply no evidence to the contrary before us.

The FPA put to this bench that if it was not satisfied on the basis of the material before the Commission to date that the conduct referred to in the FPA's notification was continuous during the period 28 to 30 May 1995 it ought to issue the summonses to allow the fullest evidence to be put in this regard.

The issue of the summonses was opposed by the MUA. It was submitted by the MUA that the Commission should not exercise its discretion to issue the summonses as there was no particularity as to the documents sought, the summonses amounted to a `fishing expedition' by a party which did not lead any evidence on the issue, the documents sought went far beyond those relevant to the issue before the Commission and the summonses were oppressive in that they would require production by a national organisation of every document relating to the dispute, no matter where located. Further it was submitted by the MUA that the Commission should be wary about issuing broad-ranging summonses in cases such as the present where civil proceedings are on foot in relation to the same subject matter as before the Commission.

The Commission's power to issue a summons for the production of information or documents is found in s.111(1)(s) of the Act and rule 21 of the Rules of the Commission. Sections 354 and 355 are also relevant and deal with the inspection and publication of documents and other things produced in evidence (see ss.354 and 355(5)) and the disclosure of trade secrets etc.

The general approach followed by the Commission and the principles applied in the consideration of applications for the issue of a summons are dealt with in a decision of Justice Munro in Re Clerks' (Alcoa of Australia - Mining and Refining) Consolidated Award 1985 [Print H2892]. In that case His Honour said in relation to similar provisions in the Conciliation and Arbitration Act 1904:

"The power to compel production is discretionary and not mandatory in the sense of giving any person, intervener or party a legal right to require, as it sees fit, production of documents or attendance of witnesses.

In its exercise of a broad discretion and judgment over use of the power, the Commission will have regard to practice

followed in courts of law where a judicial discretion has been applied to regulate use of a subpoena to produce documents. Any such subpoena must specify with reasonable particularity documents which are required to be produced.

It may be sufficiently specific to identify documents to be produced by reference to the subject matter to which they

relate. In the case of a corporation, it is usually appropriate, where the custodianship of documents is not

clear, to direct the subpoena to the `Proper Officer'. It is not legitimate to use a subpoena for what, in effect, would be discovery of documents against a person not liable to make discovery, or as a substitute for discovery which should be applied for at the proper time. The documents sought must be of a nature capable of being relevant to an issue which might legitimately arise on the hearing of the matters in dispute. In the first instance the documents are produced to the tribunal upon whom it falls to examine the documents, assess their relevance and determine what access by the parties to the documents may be appropriate; (section 187 of the Act appears to be the statutory counterpart of this principle of practice). A party will not be required to produce documents where to do so would be oppressive; or where the demand for production is a `fishing expedition', in the sense that it is an endeavour not to obtain evidence to support a case, but to discover whether there is a case at all. Where the proper use of legal compulsion to produce documents is in issue, the tribunal will need to carry out an exercise of judgment upon the particular facts in each case. That judgment requires a balance on the one hand of the reasonableness of the burden imposed upon the recipient, and of the invasion of private rights, with on the other hand, the public interest in the due administration of justice and in ensuring that all material relevant to the issues be available to the parties to enable them to advance their respective cases. [See Clarke J: Southern Pacific Hotels Services Incorporated v. Southern Pacific Hotel Corporation Limited (1984) 1 NSW LR 711 at 717-721; Commissioner for Railways v. Small [1938] NSWStRp 29; (1938) 38 SR (NSW) 564 at 573; Purnell Brothers Pty Ltd v. Transport Engineers Pty Ltd (1984) 73 FLR 160 at 174; National Employers Mutual General Association Limited v. Waind and Hill (1978) 1 NSW LR 372; Rochfort v. TPC [1982] HCA 66; (1982) 43 ALR 659 at 667].

The determination of whether a party should be compelled to produce information which may be within its possession must in my view be primarily guided by the considerations referred to by the 1975 National Wage Case Bench when it said:

`This wide-ranging discretion conferred on the Comm ission is statutory recognition of the complex exigencies which permeate industrial relations. What procedures are fair and reasonable in the handling of a dispute must depend upon the particular mix of factors involved and inevitably calls for the exercise of broad discretion and judgment.' [Print C2200; (1975) 167 CAR 18 at 22]."

In all the circumstances of the present matter we have concluded that it would not be appropriate to issue the summonses sought by the FPA and to compel the attendance of the Federal and State Branch Secretaries and/or the production of documents by the MUA. We are of the view that the request for the issue of the summonses may be properly characterised in the present case as a `fishing expedition' by the FPA in circumstances where it has been unable or unwilling to produce any evidence on its own behalf. Further we consider that the demand for production has not been made with sufficient particularity as to avoid imposing an excessive burden on the MUA. We are of the view that the particular summonses sought would be oppressive to the MUA in that they would require

production of a substantial number of documents only some of which may be of direct relevance to the proceedings before the Commission. The summonses would also require an industrial protagonist to disclose details of internal deliberations and intentions on industrial relations matters and would compel such disclosure in circumstances where the applicant FPA has not sought to lead its own evidence and where civil proceedings have been taken by the applicant against the MUA in the courts. For these reasons, the application for the issue of the summonses is refused.

In the circumstances of having refused the issue of the summonses this bench must decide the question of whether a certificate ought to be issued under s.166A(6)(c) of the Act on the basis of the material before us. A reading of all the material indicates that the primary focus of the notifications

and requests to the Commission by the FPA was the industrial action and picketing action which was being taken by the MUA against the FPA and which was threatening the cessation of operations at the Port. However, as we have said, the only evidence presented in the appeal proceedings indicates that on 28, 29 and 30 May 1995 there was no industrial action of any nature effected against the FPA by employees who are members of the MUA.

As we have pointed out above there is no legislative equivalent in s.166A to the provisions of s.163D(4). In these circumstances we are unable to conclude on the evidence and material before us that there was any conduct by the MUA such as to provide a basis of the issue of a certificate under s.166A(6)(c) of the Act.

Accordingly, we quash the s.166A certificate issued by Commissioner Laing on 1 June 1995.

S. Crawshaw, of counsel, for the Maritime Union of Australia.

A. Lucev and D. Ellis, of counsel, for the Fremantle Port Authority.

Boycott - secondary boycott - s.163A Industrial Relations Act 1988 - restrictions in tort - s.166A Industrial Relations Act 1988 - appeal - jurisdiction - stevedores, maritime industry - MUA appeal against decision (Print M2448) issued by Laing C 1 June 1995 that there was jurisdiction to issue the certificates - claim that Commissioner failed to observe requirements of natural justice and thereby satisfy himself that he had jurisdiction, in that no opportunity was given for MUA to argue whether prerequisites for granting certificates were satisfied - appeal raises important questions regarding jurisdiction to issue certificates allowing a party to commence actions for an injunction or damages - therefore appropriate that leave to appeal be granted - procedural fairness considered - Commissioner was not obliged to give MUA any further opportunity to be heard on the matters sought to be raised in relation to the s.163D certificate - it was not necessary for the Commissioner to become involved in a detailed legal examination as to whether the conduct that was taking place came within definitions in the Act - urgency of provisions of Act does not support allowing a party to delay access to the Court in this way - Commission's function is to attempt as quickly as possible and by the exercise of its conciliation powers to resolve boycott disputes or to stop boycott conduct - in circumstances where Commission is unable to do so it is obliged to promptly issue certificates which allow parties access to the Court - accordingly appeal against s.163D certificate should not succeed - Commissioner's

jurisdiction to issue s.166A certificate was challenged and no hearing was afforded in relation to that challenge - appropriate to allow appeal and to determine what action should be taken in relation to request for certificate - Full Bench noted lack of legislative equivalent in s.166A to the provisions of s.163D(4) - summons - whether to issue summons to allow fullest evidence to be put to determine whether conduct was continuous during the period 28 to 30 May 1995 - fishing expedition

• demand for production has not been made with sufficient particularity as to avoid imposing an excessive burden on MUA - summonses would also require an industrial protagonist to disclose details of internal deliberations and intentions on industrial relations matters and would compel such disclosure in circumstances where the applicant FPA has not sought to lead its own evidence and where civil proceedings have been taken by the applicant against the MUA in the courts
• application for issue of summonses refused - only evidence presented in the appeal proceedings indicates that on 28, 29 and 30 May 1995 there was no industrial action of any nature effected against the FPA by employees who are members of the MUA
• unable to conclude on evidence and material that there was any conduct by the MUA such as to provide a basis of the issue of a certificate under s.166A(6)(c) - s.166A certificate quashed accordingly.