Laing v Carroll

REASONS FOR JUDGMENT SPENDER J: 1 This is an appeal from the dismissal by a single judge of this Court of an application made pursuant to s 39B(1A) of the Judiciary Act 1903 (Cth) for a declaration that the respondent is required by s 83BH(4)(d) of the Workplace Relations Act 1996 (Cth) ("the Act") to produce the documents described in the notice served upon him by the applicant on 10 October 2003. 2 William Laing ("the appellant") is an employee of the Commonwealth within its Department of Employment and Workplace Relations attached to the Interim Building Industry Taskforce ("the Taskforce") as an investigator. He is an authorised officer pursuant to s 83BG(1) of the Act. In early 2002, the State of Victoria decided to establish the Morwell Gasworks Remediation Project ("the Morwell project") in respect of a gasworks site at Morwell in the Latrobe Valley. The Victorian Government Property Group ("the VGPG") is responsible for undertaking that project. 3 In about May 2002 the VGPG decided to advertise for registrations of interest by demolition contractors in relation to demolition work associated with the Morwell project. Amongst the registrations of interest to VGPG was that of Able Demolitions and Excavations Pty Ltd ("Able"). Able submitted its registration of interest on 12 June 2002. The VGPG engaged CMR Consultants (Australia) Pty Ltd ("CMR") to evaluate and submit a shortlist of demolition contractors who would be invited to tender for work on the Morwell project. Able was not invited to tender. CMR advised Able of its decision by letter dated 21 February 2003. The tenders, for those contractors who were on the shortlist, opened on 21 February 2003 and were to close on 30 April 2003. 4 On 11 March 2003, a solicitor acting on behalf of Able contacted the Taskforce with respect to a complaint by Able concerning its exclusion from the short list of tenderers to perform work at the Morwell site. Able subsequently provided the appellant with further details about its complaint. In essence, it asserted that it was excluded from work on the Morwell site because it was not party to an enterprise agreement to which the Construction Forestry Mining and Energy Union ("the CFMEU") was a party. 5 After further investigation, the appellant formed the view that the State may have refused to allow Able to tender for work at the Morwell site because Able was party to a certified agreement under s 170LK of the Act, being an agreement with its employees alone. He further considered that the State may have breached s 298K(2)(d) of the Act by refusing to engage Able as an independent contractor for the prohibited reason referred to in s 298L(1)(h) of the Act, that is, that Able was entitled to the benefit of a certified agreement. 6 On 14 April 2003, the appellant wrote to the person within VGPG who then had responsibility for the Morwell project, requesting the provision of various categories of documents concerning the tender process. The tendering process was then suspended by CMR, and the solicitors acting for the State of Victoria wrote to the appellant by letter dated 10 June 2003, advising him that the VGPG had suspended the tender process, was undertaking a review of the matter and had decided to invite Able to submit a tender, and proposed to appoint a Probity Auditor to oversee and scrutinise the tender process and the selection of the successful tenderer. By letter dated 23 July 2003, CMR invited Able to tender for the Morwell project. 7 Subsequently, Able was successful with its tender and has completed the demolition works. 8 As at 5 August 2003, the appellant suspected that the initial decision of VGPG to exclude Able from the tendering process might constitute a breach of s 298K(2)(d) of the Act. He decided that, pursuant to s 83BH(4)(d) of the Act, he would require Mr John Howell, the person who then had responsibility for the Morwell project, to produce documents to him. 9 The appellant prepared a document on 5 August 2003 entitled "Notice Pursuant to Section 83BH(4)(d) Workplace Relations Act 1996." On 11 September 2003 the appellant prepared a second notice directed to Mr Howell, in almost identical terms to the 5 August 2003 notice, which required the documents referred to in the notice to be produced to the appellant by 25 September 2003. On 17 September 2003 the appellant left the second notice at VGPG's mail centre at Treasury Place for delivery to Mr Howell. 10 By letter dated 24 September 2003, Mr David Shaw of Holding Redlich, the solicitors acting for the State of Victoria, requested that the appellant grant Mr Howell a 14-day extension to enable advice to be given to Mr Howell regarding compliance with the notice. The appellant agreed to an extension to 9 October 2003. 11 On 8 October 2003, Mr Shaw wrote to the appellant indicating that '[w]e are instructed to contest the validity of the Notice.' Mr Shaw also advised that Mr Peter Carroll was then the Project Director for the Morwell project in place of Mr Howell. Mr Shaw invited the appellant to formally withdraw the notice directed to Mr Howell and invited him to direct a fresh notice in the same terms to Mr Carroll. He advised: '… We anticipate that we would be instructed to contest the validity of any such fresh Notice, but not on the ground that Mr Carroll lacked relevant custody or access.' 12 After further correspondence, the appellant, by facsimile transmission on 9 October 2003, advised Mr Shaw: '… The purpose of this letter is to advise you that I have decided not to enforce Notice NPAO 01/0069. I will serve a new s83BH(4)(d) Notice on Mr Peter Carroll at 11.30 tomorrow morning. Would you please advise Mr Carroll of this arrangement.' 13 On 10 October 2003, the appellant attended at the VGPG's offices at 1 Treasury Place, Melbourne. He met the respondent at the security desk. He identified himself as an authorised person and told him that he required him to produce documents contained in a notice addressed to the respondent. He showed the respondent that notice. He told the respondent that the notice contained the details of the documents he was seeking. The respondent requested that the appellant hand him a copy of the notice outside the building because of the security policy of VGPG. The parties then stepped outside the building. The appellant then gave the respondent the notice, which was in identical terms to the second notice given to Mr Howell, and which is, materially identical to the first notice given to Mr Howell. 14 That notice is in the following terms: '10 October 2003 NPAO 01/0083 Notice Pursuant to Section 83BH (4)(d) Workplace Relations Act 1996 Mr Peter Carroll Victorian Government Property Group Commercial Division Department of Treasury and Finance Level 5, 1 Treasury Place MELBOURNE VIC 3002 Dear Mr Carroll Notice to Produce Documents - NPAO 01/0083 I, William Laing, am an authorised officer under s.83BG of the Workplace Relations Act 1996 ("the Act"). I am investigating possible breaches of Part XA of the Act. Pursuant to s.83BH of the Act, for purpose of ascertaining compliance of Part XA and other provisions of the Act as prescribed by the Workplace Relations Regulations I am empowered to require persons who have custody or access to documents relevant to that purpose to produce the said documents to me. Pursuant to s.83BH(4)(d) of the Act I require you being a person who has custody of or access to documents relevant to the purpose referred to above to produce to me at the above address by 4 pm, 17 October 2003, the following documents created prior to 23 April 2003, namely all documents: (A) commonly described as or known as a: (1) registration of interest or an expression of interest to provide the Services; (2) invitation to tender to provide the Services; or (3) tender to provide the Services. (B) relating or concerning or used or proposed to be used in the: (1) assessment of any registration or expression of interest to provide the Services; (2) selection or non selection, including proposed selection or non selection, of any contractor to be invited to tender to provide the Services; and (3) selection or non selection, including proposed selection or non selection, of any tender to provide the Services, such documents to include but are not limited to documents issued by the Government or CMR Consultants (Australia) Pty Ltd or any related corporate body thereof in the nature of instructions, advice, policy, criteria or guidelines including the documents used in the development or creation thereof. (C) concerning or relating to Able Demolitions and Excavations Pty Ltd and: (1) its status under the Demolition Contractor's Pre qualification scheme, howsoever described; (2) the provision of: (a) the Services; (b) demolition works and asbestos removal services on or in connection with any worksite to 23 April 2003 in the State of Victoria; or (3) discussions between the State's officers and/or agents regarding Able Demolitions and Excavations Pty Ltd's performance on any past project, such documents to include but are not limited to communications within the Government. (D) comprising, recording or disclosing any contact or dealing between the Government and: (i) the Latrobe Valley Ministerial Taskforce howsoever described; (ii) CMR Consultants (Australia) Pty Ltd or any related corporate body thereof; or (iii) any industrial association, concerning or relating to: (1) any registration of interest or expression of interest to provide the Services including but not limited to any assessment thereof; (2) the selection or non selection of any contractor to be invited to tender to provide the Services; (3) the selection or non selection including the proposed selection or non selection of any tender to provide the Services; (4) any instruction, advice, policy, criteria or guidelines, including the documents used in the development or creation thereof, concerning or relating to: (a) any registration of interest or expression of interest to provide the Services including but not limited to any assessment thereof; (b) the selection or non selection, including proposed selection or non selection, of any contractor to be invited to tender to provide the Services; and (c) the selection or non selection, including proposed selection or non selection, of any tender to provide the Services; or (5) Able Demolitions and Excavations Pty Ltd. (E) prepared, or provided to any person or the Government for the purpose of: (1) assisting in the decision as to who would be invited to tender for the Services; or (2) briefing any person or the Government including but not limited to any Minister, in relation to the decision taken as to who should be invited to tender for the Services. Note: For the purposes of this Notice, the term: 1)"document" includes: (a) any paper or other material on which there is writing; (b) any paper or other material on which there are marks, figure, symbols or perforations having a meaning for persons qualified to interpret them. (c) any article or material or record of information from which sounds, images or writings are capable of being reproduced; and (d) any letter, facsimile, memorandum, file note, briefing note, telephone note, discussion note, diary, industrial instrument, recommendation, advice, report, circular, agenda, minutes, review, appraisal, form, notebook, journal, message slip, receipt, ledger, payment slip, invoice or account; and (e) any map, plan, drawing or photograph. 2)"person" includes but is not limited to: (a) a natural person; (b) a body corporate including an incorporated association or society; (c) an unincorporated body including an unincorporated association or society; (d) a currently or previously registered organisation of employers or employees under any law of the Commonwealth or State; (e) a trust and in relation to a trust, one or more or all of those trustees together; (f) a partnership and in relation to a partnership, one or more or all of the partners together; and (g) a joint venture and in relation to a joint venture, one or more or all of the joint venturers; and (h) an alliance, and in relation to an alliance, one or more or all of the alliance members or participants (howsoever described). 3)"industrial association" has the same meaning as "industrial association" in s.298B of the Workplace Relations Act and includes: (a) any branch of an organisation; or (b) any official, officer, employee, member, representative or agent of the organisation or any branch of the organisation; (c) the Victorian Employers' Chamber of Commerce and Industry; (d) the Australian Mines and Metals Association (Inc); (e) the Master Builders Association of Victoria; (f) the Australian Industry Group; or (g) the Australian Constructors Association. 4)"related body corporate" has the same meaning as "related body corporate" in s.9 of the Corporations Act, 2001 (Commonwealth). 5)"the Site" means the Lurgi Gas Works, Melbourne, Victoria howsoever described. 6)"the Services" means the provision of demolition works at the Site and the removal of asbestos from the Site. 7)"the Government" means the Government of the State of Victoria and includes any agent, agency, department, officer or office and includes any Minister. Production of documents must be of originals. Copies may only be produced of originals that have been destroyed. A person who contravenes the requirement to produce documents pursuant to section 83BH(4)(d) may be served with a notice to produce documents pursuant to section 83BH(5) of the Act. Failure to comply with this Notice without reasonable excuse may be in contravention of s305A of the Workplace Relations Act 1996 (Cth). Penalty is 6 months imprisonment. Yours sincerely [signed] William Laing Investigator, Interim Building Industry Task Force Department of Employment and Workplace Relations (Cth) An Authorised Officer pursuant to section 83BG of the Workplace Relations Act 1996. It is a serious offence to knowingly provide false or misleading documents in response to this Notice to Produce: Section 137.2. The Criminal Code Act 1995 (Commonwealth). Penalty: Imprisonment for 12 months.' (Emphasis in the Original) 15 The present appellant filed the application for a declaration, together with a Statement of Claim on 17 October 2003. On the same day, solicitors for the respondent had sought withdrawal of the notice and, in the absence of an agreement to withdraw the notice, an undertaking to take no action to enforce it without seven days prior notice to them, and indicated that in the absence of the undertaking: '… we will be forced to issue proceedings in the Federal Court challenging the validity of the notice, enjoining you from taking action to enforce it and seeking costs.' 16 That letter outlined several bases on which it was contended, on behalf of the respondent, that the notice was invalid. The letter said, in part: 'As you are aware, the State has invited Able Demolitions and Excavations Pty Ltd ("Able") to submit a tender for the demolition works defined in the notice as "the Services". In these circumstances, it is plain that the provisions of Part XA of the Act "have been complied with" within the meaning of section 83BH(1)(b). The powers in section 83BH may be exercised for the purpose of "ascertaining whether" provisions of Part XA have been complied with, not for the purpose of confirming that fact. Nor are the powers available to ascertain whether the provisions had, at an earlier time, been complied with (although the State maintains that they were, in any event, so complied with). We also draw your attention to section 6 of the Act and note that the State cannot be prosecuted for an offence against the Act. The same result applies in respect of civil penalties for contraventions of the Act. It follows from this that the coercive powers found in section 83BH cannot be used in order to investigate compliance by the State with the Act. The powers are intended to be used for the purpose of investigating contraventions which might be the subject of enforcement action and to lay the foundation for such action where appropriate. They are not available to be exercised for some other purpose. It is a further consequence of the limited application of the Act to the State that a notice cannot be enforced against an agent or employee of the State in respect of alleged non-compliance by the State with the Act. In addition, and in any event, the notice would be too wide and oppressive even if it had been issued for an authorised purpose. We refer in particular to paragraphs (C)(2)(b), (C)(3) or (D)(5), which seek broad classes of documents not defined by reference to the question whether provisions of Part XA of the Act have been complied with in relation to the pre-tender process concerning the Services as defined.' 17 The primary judge declined to make the declaration sought for discretionary reasons said to arise from the provisions of the Act. It is therefore convenient to set out the relevant statutory provisions. Legislative Framework 18 Section 3 of the Act, dealing with the principal object of it, provides: 'The principal object of this Act is to provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia by: … (f) ensuring freedom of association, including the rights of employees and employers to join an organisation or association of their choice, or not to join an organisation or association; …' Section 6 provides: '(1) This Act binds the Crown in each of its capacities. (2) However, this Act does not make the Crown liable to be prosecuted for an offence.' Section 83BG provides: '(1) The Employment Advocate may, by instrument in writing, appoint as an authorised officer: (a) a person who is appointed or employed by the Commonwealth; or … (3) The Employment Advocate must issue to an authorised officer an identity card in the form prescribed by the regulations. The identity card must contain a recent photograph of the authorised officer. …' 19 Section 83BH is the provision of the Act central to these proceedings. It relevantly provides: '(1) An authorised officer may exercise powers under this section for the following purposes (compliance purposes): a. for the purpose of ascertaining whether the terms of an AWA have been complied with, or are being complied with; b. for the purpose of ascertaining whether the provisions of Part VID or Part XA have been complied with, or are being complied with; c. for the purpose of ascertaining whether other provisions of this Act that are prescribed by the regulations have been complied with, or are being complied with. (2) The powers may be exercised at any time during ordinary working hours or at any other time at which it is necessary to do so for compliance purposes. (3) An authorised officer may, without force, enter: … (b) a place of business in which the authorised officer has reasonable case to believe that there are documents relevant to compliance purposes; … (4) An authorised officer may do any of the following in a place referred to in subsection (3): … (c) interview any person; (d) require a person who has the custody of, or access to, a document to produce the document to the authorised officer within a specified period; … (5) If a person fails to comply with a requirement under subsection (4) to produce a document, an authorised officer may, by written notice served on the person, require the person to produce the document at a specified place within a specified period (not being less than 14 days). … (8) Before entering a place under this section, an authorised officer must announce that he or she is authorised to enter the place. If the occupier or another person who apparently represents the occupier is present, the authorised officer must produce his or her identity card to that person for inspection. (Emphasis in the Original) …' 20 Part V of the Act deals with inspectors. Section 84(2) provides: 'The Minister may, by instrument: (a) appoint a person engaged under the Public Service Act 1999 to be an inspector; …' 21 The powers of inspectors are provided for in s 86(1) of the Act: '(1) … for the purpose of ascertaining whether awards and certified agreements, and the requirements of this Act, … are being, or have been, observed. (1A) The powers of an inspector are: (a) to, without force, enter: (i) premises on which the inspector has reasonable cause to believe that work to which an award or certified agreement applies is being or has been performed; or (ii) a place of business in which the inspector has reasonable cause to believe that there are documents relevant to the purpose set out in subsection (1); and (b) on premises or in a place referred to in paragraph (a): … (iv) require a person having the custody of, or access to, a document relevant to that purpose to produce the document to the inspector within a specified period; and (v) inspect, and make copies of or take extracts from, a document produced to him or her. …' 22 Section 298K(2)(d) of the Act provides: '(2) A person must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following: … (d) refuse to engage another person as an independent contractor;' 23 Section s 305 of the Act provides: '(1) A person is guilty of an offence if the person contravenes a requirement made by an inspector under subparagraph 86(1A)(b)(iv), paragraph 86(1A)(c) or subsection 86(2) or subparagraph 542(2)(b)(iv), paragraph 542(2)(c) or subsection 542(4). Penalty: Imprisonment for 6 months. (2) Subsection (1) does not apply if the person has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).' Section 305A provides: '(1) A person is guilty of an offence if the person contravenes a requirement made by an authorised officer under paragraph 83BH(4)(d) or subsection 83BH(5). Penalty: Imprisonment for 6 months. (2) Subsection (1) does not apply if the person has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).' 24 Section 21 of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act") provides: '(1) The Court may, in relation to a matter in which is has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed. (2) A suit is not open to objection on the ground that a declaratory order only is sought.' 25 The primary judge rejected the contention that s 83BH(4)(d) had no application to a State. His Honour said at par 47 of his reasons: 'If s83BH(4)(d) was not intended to be applicable to a State, and no requirement under it could be made of a State, the section itself would have so provided. There is no reason why it is not possible for declaratory [r]elief to be granted in respect of a State's refusal to comply with a requirement. It is a totally different question whether, in the exercise of the Court's discretion, it should grant declaratory relief if to do so would be to permit the applicant to achieve by way of declaration that which he could not achieve by way of prosecution or threatened prosecution.' 26 His Honour nonetheless rejected making a declaration on discretionary bases. His Honour said at par 55 of his reasons: 'The applicant seeks to achieve by way of declaratory relief that which he is incapable of achieving, or encouraging the achievement of, by way of prosecution or threatened prosecution. He is effectively engaging in "an attempt to do indirectly or by the back-door what cannot be done directly": see Australian Building Construction Employees' and Builders Labourer's Federation v Master Builders Association of New South Wales (1986) 69 ALR 515 at 525 per Beaumont J. The Act provides an inbuilt mechanism for the enforcement of s 83BH(4)(d) and (5). Granting declaratory relief in the instant circumstances would enable the applicant to side step that mechanism, and, as is later developed at [65], deny the respondent the chance to claim that he had a reasonable excuse not to produce the documents, when he was required by the applicant to do so.' 27 The primary judge was also of the view that the notice was invalid on its face, because it did not identify with precision the source of the authority of the applicant. 28 This case, however, is not concerned with any question of validity of the notice, although his Honour perhaps was led into these considerations by the contention on behalf of the State that the notice was invalid, and also by the terms of the document which was given to Mr Carroll by Mr Laing. Even so, in that document, on its proper construction, the reference in the third paragraph to 'relevant to the purpose referred to above' is properly to be understood as a reference to the second sentence of the first paragraph of the document: 'I am investigating possible breaches of Part XA of the Act.' 29 The second paragraph of the notice involves a mis-statement if it is meant to convey that the power conferred by s 83BH of the Act can be for purposes of ascertaining compliance with other provisions of the Act, but the document on its fair reading makes it plain that the requirement was based on the purpose specified in the second sentence of the first paragraph, namely, the investigation of possible breaches of Part XA of the Act. The compliance purposes for which the powers under s 83BH can be exercised are those compliance purposes set out in subs (1) of that section. 30 This is not a "notice" case to which subs (5) of s 83BH would relate. Rather, this is a case under s 83BH(4)(d), where an officer has required a person to produce documents, those documents being specified in the document that was handed by Mr Laing to Mr Carroll. The validity of that request is not to be judged by what might be the consequences of failure to comply with that request. 31 In my judgment, the primary judge was in error in exercising his discretion against the making of a declaration on the bases on which his Honour relied. 32 On the material before his Honour, it would have been a valid exercise of the discretion, to make a declaration in relation to at least some documents covered by the notice. In my judgment, it was appropriate for Mr Laing to seek the production of at least some of the documents referred to in the document handed to Mr Carroll, although it is arguable that the extent of the documents sought was too wide. 33 Mr Richard Tracey QC, counsel for the appellant, urged this Court to make a declaration, either in the terms sought before the primary judge or in a modified form. 34 There are, in my view, two reasons why this Court should not accede to that request. The first concerns the terms of the declaration the Court might make. The second concerns the relevance of events happening subsequent to the judgment of the primary judge. The first reason: the width of any declaration 35 Only documents relevant to the stated purpose, namely, whether the State of Victoria contravened Part XA of the Act, are able to be the subject of a requirement to produce pursuant to s 83BH(4)(d) of the Act. The letter by the solicitors for the State of Victoria to Mr Laing of 17 October 2003 protested that the request covered by pars (C)(2)(b), (C)(3) and (D)(5) were beyond power as seeking 'broad classes of documents not defined by reference to the question whether provisions of Part XA of the Act have been complied with in relation to the pre-tender process concerning the Services as defined.' 36 In my opinion, the question of whether the documents in these categories should be included in an appropriate declaration is unresolved. There is a suggestion in the material before this Court that the appellant conceded before the primary judge that documents in the category of those documents referred to in (C)(2)(b) and (C)(3) should be excised from the declaration requiring the State of Victoria to produce documents. 37 The power conferred on Mr Laing by s 83BH(4)(d) of the Act is a power to require the specified person to produce documents for the purpose of investigating possible breaches of Part XA of the Act. The production of documents which are not relevant to the purpose for which the requirement was made is not a request within power. 38 It is competent for this Court to excise from the requirement of Mr Laing documents which are not relevant to the statutory purposes of his request. On the other hand, in my opinion, it is not possible to recast or refine the request (in the sense explained later) so that it is within power. 39 The boundaries of what might be properly the subject of a declaration by this Court is, in my view, a matter relevant to the question of whether this Court should make a declaration and, if so, in what terms. 40 What are the boundaries of a proper request in the circumstances of this case has not been the subject of detailed submissions. It follows that there may be room for differing views as to what was properly able to be required by the request on 10 October 2003 and which might have been the subject of a declaration by the primary judge, or by this Court. 41 It is therefore necessary to approach with some precision the question of what documents were properly able to be required, in the context of what documents in fact Mr Laing sought of Mr Carroll. 42 My view is that the documents sought in pars (C)(2)(b) and (D)(5) were not relevant to an investigation into whether there had been a possible breach of Part XA of the Act by the State of Victoria. The documents sought by par (C)(3) were relevant to that question. It is necessary to have regard to each of these categories of documents separately. The documents sought by par (C)(2)(b) 43 The documents sought by par (C)(2)(b), which are any documents relating to Able and demolition works and asbestos removal services on or in connection with any work site to 23 April 2003, have no apparent relevance to whether the State of Victoria had breached Part XA of the Act in failing to allow Able to tender in respect of the Morwell project. It is significant, in my opinion, that the request contained in par (C)(2)(b) is unqualified in its terms. In particular, it is not restricted to documents that are concerned with Able's performance of demolition works and asbestos removal services on or in connection with any work site prior to 23 April 2003 in the State of Victoria. If it had been so restricted, for the reasons below in relation to the documents sought by par (C)(3), it would in my opinion have been a valid request. However, in my opinion, it is not competent for this Court to rewrite or recast a request not within power, by describing a category of documents different from the category sought, for which category a request would be within power. The documents sought by par (C)(3) 44 At first blush it might be thought that the documents identified in par (C)(3), being documents concerning or relating to discussions between the State's officers and/or agents regarding the performance of Able on any past project, do not seem to have a relevance to the question of whether the State of Victoria breached the provisions of Part XA of the Act. It was again not the matter of detailed submissions. However, there is material before this Court (but not before the primary judge) which suggests that Able may not have been invited to tender for the services in respect of the Morwell project because of its performance in respect of an earlier project. In my opinion, documents suggesting that there were performance issues relating to Able's performance on earlier projects might be relevant to the question of whether Able's exclusion from the tender process for the Morwell project was because of a prohibited reason or partly because of a prohibited reason or, alternatively, was for a reason or reasons which were wholly non-prohibited. 45 In an affidavit filed in separate proceedings VID 111 of 2005 initiated by the appellant in the Federal Court, Mr Craig Rawson, a solicitor employed by the Australian Government Solicitor, deposes to a meeting between representatives of Able and the Project Manager of the Morwell project retained by the State of Victoria, and deposes that the representatives of Able were '(allegedly) informed that Able had not been on the tender list because its Registration of Interest did not comply with the requirements of the Latrobe Valley Ministerial Task Force and there was a continuing dispute regarding a previous project undertaken by Able.' 46 The existence of 'a continuing dispute regarding a previous project undertaken by Able' might provide a basis for Able not being on the tender list, with the possible result that Able's exclusion from the tender list did not involve any contravention of Part XA of the Act. It seems to me that on the issue of whether Able was excluded as a tenderer wholly or partly for a prohibited reason, or was excluded because of a continuing dispute about an earlier project by Able, documents relevant to that latter reason are relevant. 47 This suggestion, indirect and belated as it is, would, if it had been advanced before the primary judge, have provided a basis to establish the relevance of the documents sought in par (C)(3). It has to be noted, nonetheless, that the documents sought by that paragraph are restricted to documents concerning and relating to Able and which involve discussions 'between the State's officers and/or agents regarding Able's performance on any past project': it does not attempt to secure production of all documents concerning or relating to Able's performance in demolition works and asbestos removal services in respect of any work site to 23 April 2003 in the State of Victoria. 48 The claim in Mr Rawson's affidavit seems to me to make relevant the question of whether Able was not invited to tender in respect of the Morwell project because of its performance on other earlier projects, and thus made relevant the documents sought in par (C)(3). The documents sought in par (D)(5) 49 In my opinion, the documents referred to in par (D)(5) are not relevant to the statutory purpose founding the request. The documents sought in par (D)(5) are documents: 'comprising, recording or disclosing any contact or dealing between the Government and: (i) the Latrobe Valley Ministerial Taskforce howsoever described; (ii) CMR Consultants (Australia) Pty Ltd or any related corporate body thereof; or (iii) any industrial association, concerning or relating to: … (5) Able Demolitions and Excavations Pty Ltd.' 50 I am unable to see, without the benefit of submissions, how documents described as documents 'about any contact or dealing between the Government and the Latrobe Valley Ministerial Taskforce howsoever described, and CMR Consultants (Australia) Pty Ltd, or any related corporate body thereof, … concerning or relating to Able' are relevant to the issue of whether the State of Victoria was in contravention of Part XA of the Act. I see no distinction between the generality of this request, and the generality of the request for documents sought by par (C)(2)(b). The request for documents in par (D)(5) about any contact or dealing with the Government and any industrial association, concerning or relating to Able, is unlimited as to time, project or matter. 51 The documents sought in (D)(5), in my opinion, are not shown to have any relevance to the question of whether the State of Victoria breached Part XA of the Act in failing to allow Able to tender in respect of the services. 52 Further, any document within the wide terms of par (D)(5) which has, in fact, a relevance to whether the State of Victoria had breached Part XA of the Act in failing to allow Able to tender in respect of the Morwell project is caught by the earlier requests. The fact is any document being a communication by the Government with the Latrobe Valley Ministerial Taskforce or CMR Consultants (Australia) Pty Ltd or any related corporate body, or with an industrial association, relating to or concerning the registration of interest or expression of interest (which include those by Able) to provide those services, or to the selection or non selection of any contractor (including Able) to be invited to tender to provide those services, or the selection or non selection including the proposed selection or non selection of any tender (which include that by Able) to provide those services, is already covered by (D)(1), (2), (3) and (4). 53 In my opinion, on the material before this Court, the documents sought in (C)(2)(d) and (D)(5) do not appear to be relevant to the power being exercised. The documents sought in (C)(3) might be relevant. This Court is not concerned with whether a request for documents concerning or relating to the performance of Able in relation to projects prior to 23 April 2003 would be within power, because those documents were not sought on 10 October 2003. 54 While it would be competent for this Court to make a declaration of the kind sought with the excision of the documents referred to par (C)(2)(b) and (D)(5), the uncertainty as to what documents should properly be excised from the request is a strong reason why no declaration should be made. The second reason: 55 The second reason for this Court not to make any declaration concerning the request by Mr Laing to Mr Carroll on 10 October 2003 is that circumstances have significantly changed since the orders of the primary judge. 56 On 16 February 2005, Mr Laing made application to the Federal Court of Australia in proceedings VID 111 of 2005 where, in an application said to relate to s 298T of the Act and for declaratory relief pursuant to s 21 of the Federal Court Act, and for orders under s 298U of the Actand in respect of the accrued and associated jurisdiction of the Court pursuant to s 32 of the Federal Court Act, he made claims for the following relief against the State of Victoria, the respondent to that application: '…3.A declaration that the respondent, on or about 21 February 2003 contravened paragraph 298K(2)(d) of the WR Act by refusing to engage Able Demolitions and Excavations Pty Ltd as an independent contractor on the Morwell Gasworks Remediation Project for a prohibited reason. 4. An order imposing a penalty on the respondent in respect of such contravention. 5. Such other orders as to the Court may seem just.' 57 The affidavit of Mr Rawson earlier referred to was affirmed on 25 February 2005 and filed on 28 February 2005 in that application. Mr Rawson deposed to the circumstances of the investigation by Mr Laing: '3. Laing has been, and is, investigating whether the State of Victoria has contravened s298K(2)(b) of the Workplace Relations Act 1996 (the WR Act) by refusing to invite Able Demolitions and Excavations Pty Ltd (Able) to tender for the project. Laing's investigation commenced on or about 11 March 2003. In an effort to conduct that investigation Laing has sought to have the State of Victoria provide him with documents which might assist his investigation (the State's documents). The State of Victoria refused to provide those documents. Accordingly in due course Laing sought to exercise the powers conferred on him by s83BH of the WR Act to obtain the State's documents. …' (Emphasis in the Original) It refers to this appeal and says of it, in par 6 of that affidavit: '6. … Laing is still seeking to vindicate his right to obtain the State's documents through the Appeal which is expected to be heard during May 2005.' 58 Under the heading 'The importance of the State's documents', Mr Rawson deposes: '7. Depending on the facts which may ultimately emerge it is possible that the State of Victoria made a decision to refuse to engage Able as an independent contractor on or about any or all of the following dates: 7.1 21 February 2003 when Able were advised by the Project Manager retained by the State of Victoria that they would not be invited to tender for the Project; 7.2 26 February 2003 when representatives of Able met with the Project Manager and were (allegedly) informed that Able had not been on the tender list because its Registration of Interest did not comply with the requirement of the Latrobe Valley Ministerial Taskforce and there was a continuing dispute regarding a previous project undertaken by Able; or 7.3 7 March 2003 when solicitors for State of Victoria wrote to Able's solicitor confirming that Able would not be invited to tender for the project. 8. If the State of Victoria did decide to refuse to engage Able as an independent contractor and did so because of, or for reasons that included, a reason prohibited by section 298L of the WR Act then it contravened paragraph 298K(2)(d) of the WR Act. 9. If Laing is successful in obtaining the State's documents it is likely that those documents will tend to suggest either that the State of Victoria has, or has not, contravened s298K(2)(d). Accordingly the Taskforce does not wish to prosecute proceedings under Part XA of the WR Act until Laing has exhausted his rights to ascertain whether the provision[s] of Part XA has been complied with. 10. However, for the reasons which follow, in order to protect its position in relation to proceedings against the State of Victoria under Part XA, the Taskforce is required to commence the proceeding within 2 years of the date upon which the cause of action accrued.…' 59 Mr Rawson referred to a time limitation in respect of the imposition of a penalty by virtue of subs 5(5) of the Limitation of Actions Act 1958 (Vic). In relation to the instructions to commence those proceedings, Mr Rawson indicated that on 15 February 2005 he spoke to a Mr Hadgkiss, who told him that he had approved the commencement by Mr Laing of proceedings, on what is said to be a "protective" basis, against the State of Victoria in respect of its decision not to allow Able to tender for the project. Mr Rawson indicates that by reason of s 298T(2) of the Act, Hadgkiss (as a delegate of the Employment Advocate) but not Laing (as an authorised officer) had standing to commence these proceedings. Accordingly, Laing was not entitled to instruct Australian Government Solicitor, as he did on 16 February 2005, to commence those proceedings. 60 Mr Rawson says: '13. … On 24 February 2005 I spoke to Hadgkiss who instructed me to seek to substitute himself for Laing as the Applicant in these proceedings, and if successful, to maintain these proceedings on a protective basis on his behalf.…' Mr Rawson deposes: '14. Although Laing and Hadgkiss have instructed us to commence these proceedings and to have Hadgkiss substituted as the Applicant, AGS is instructed to do so on a protective basis only and that neither Laing nor Hadgkiss wishes AGS to take any steps to prosecute the proceedings at this stage. Accordingly the applicant seeks an order that the proceedings should be adjourned to a date to be fixed with liberty given to the Applicant to apply for directions at some later stage. Both Laing and Hadgkiss have also instructed me to seek leave to file and serve an Amended Application in these proceedings in the form now shown to me and marked "CLR-7". No prejudice to the State of Victoria 15. The Taskforce does not wish to prosecute these proceedings at this stage for the reasons given in paragraphs 7 to 9 herein. By reason of the matters set out in those paragraphs there are a range of possible outcomes to Laing's investigation. One of those possible outcomes is that the Taskforce will wish to prosecute proceedings against the State of Victoria in respect of an alleged contravention of s298K(2)(d) of the WR Act. However that is only one possibility. Because the Taskforce has not been able to gain access to the State's documents it is not possible to estimate the likelihood of that possibility being reached. Accordingly the Applicant submits that the efficient and effective administration of justice would be best served by adjourning these proceedings until such time as Laing has been able to conclude his investigation. 16. If the applicant does decide to prosecute these proceedings at some point in the future the Applicant submits that there would be no prejudice to the State of Victoria's position by reason of any adjournment at this stage. …' 61 A statement of claim has been filed in those proceedings, pursuant to directions made by Merkel J on 16 March 2005. The statement of claim pleads facts in paragraphs 1 to 20, and then continues: '21. By reason of the matters pleaded in paragraphs 17 to 20 above, the Respondent refused to engage Able to perform the demolition work on the Project: (a) on 21 February 2003; (b) alternatively, on 26 February 2003; (c) alternatively, on 7 March 2003. ("Conduct of the Respondent"). 22. The Conduct of the Respondent was: (a) conduct carried out with a purpose or intent relating to the fact that a person is bound by an award, a certified agreement or an AWA for the purposes of s.298F(2)(b) of the WR Act; (b) conduct in Victoria for the purposes of s.496 of the WR Act; and (c) a refusal to engage another person as an independent contractor for the purposes of s.298K(2)(d) of the WR Act. 23. The Conduct of the Respondent was carried out for reasons that included the following reasons: (a) Able participated in the Section 170LK Proceeding; and (b) Able was entitled to the benefit of the Adex Agreement; ("Reasons for the Conduct"). 24. The Reasons for the Conduct are prohibited reasons under s.298L(1)(h) and s.298L(1)(j) of the WR Act. 25. By reason of the matters pleaded in paragraphs 21 to 24 above, the Respondent contravened s.298K(2)(d): (a) on 21 February 2003; (b) alternatively, on 26 February 2003; (c) alternatively, on 7 March 2003. …' (Original Emphasis) 62 The statement of claim carries the notation: 'This pleading was prepared by Richard Tracey QC and Paul O'Grady of Counsel.' 63 The Certificate of Legal Representative dated 5 April 2005 by Mr Craig Rawson says: 'I, CRAIG RAWSON, certify to the Court that the factual and legal material available to me at present provides a proper basis for: (a) each allegation in the pleading; (b) each denial in the pleading; and (c) each non-admission in the pleading' (Original Emphasis) 64 There is an obvious tension between the evidentiary position deposed to in Mr Rawson's affidavit affirmed 25 February 2005 (and in particular par 9 of that affidavit referred to in par 58 above and the penultimate sentence of par 15 referred to in par 60 above), concerning the sufficiency of the evidence of a contravention of the Act available to Mr Laing or Mr Hadgkiss in the absence of the State's documents, and the certification by Mr Rawson as to the sufficiency of that evidence as a basis for the allegations in the statement of claim. It is clear that Mr Hadgkiss or Mr Laing, or both, wished to have access to the documents the subject of the application for a declaration, because they were critical to the issue of whether there was a contravention by the State of Victoria of s 298K(2)(d) of the Act. 65 A notice of motion by the solicitor for the State of Victoria was filed on 15 March 2005 seeking that the application dated 16 February 2005 be struck out. 66 A notice of motion was filed on 25 February 2005 by Mr Laing and Nigel Hadgkiss seeking an order that Nigel Hadgkiss, who had authority to initiate proceedings for a penalty, be substituted for the appellant, who did not have that authority. 67 On 16 March 2005, Merkel J made the following orders: '1. The applicant deliver a Statement of Claim on or before 6 April 2005. 2. The respondent file and serve a Defence on or before 27 April 2005. 3. The applicant file and serve any Reply on or before 4 May 2005. 4. The parties exchange an outline of submissions on or before 20 May 2005. 5. Direct parties exchange any responding submissions on or before 27 May 2005. 6. Any affidavits of the parties be filed and served on or before 4 May 2005. 7. Fix the motions for hearing at 10 am on Friday 3 June 2005. 8. Reserve Costs.' 68 On 15 June 2005 Merkel J refused the application by Mr Laing under O 13 r 2(2) of the Federal Court Rules to substitute Hadgkiss for Laing as the applicant in the claim for a penalty. His Honour said: 'A consequence of that decision is that that claim is untenable as it is not authorised by s 298T(2) of the WR Act and therefore should be struck out.' 69 His Honour, for the reasons which he then gave, permitted Hadgkiss to be substituted for Laing as the applicant for declaratory relief, under O 13 r 2(2). His Honour said: '… As explained above, the State has no limitations defence to the declaratory relief, about which there is a real controversy. In order to enable that controversy to be determined, it is appropriate to substitute Hadgkiss as the applicant. As the delegate of the Employment Advocate and the Director of the Taskforce he plainly has a stronger claim to have standing than Laing and, notwithstanding the State's submissions to the contrary, there is no discretionary reason why the substitution should be refused. In allowing the substitution I am proceeding on the basis that Laing and Hadgkiss have acted in good faith in commencing and prosecuting the proceeding to date and wish to claim the relief sought if the documents the State has in its possession warrant that course being pursued. In those circumstances I am not satisfied that the discretionary reasons put forward by the State constitute an adequate reason to refuse the substitution applied for by both Laing and Hadgkiss.' 70 The question for this Court is not whether the bringing of the penalty proceedings by themselves should mean that the Court should not make a declaration of the kind sought, or of some modified kind. The question is whether, having regard to the fact that penalty proceedings have been brought and have been struck out as having been incompetently commenced, but that a claim for a declaration of a contravention, a claim which had not been incompetently commenced, is ongoing, are matters which (either above or in combination with other matters) should persuade the Court against making the declaration sought or a modified version of it. 71 The High Court in two judgments, Huddart, Parker & Co Pty Ltd v Moorehead (1910) 8 CLR 330, and The Melbourne Steamship Company Ltd v Moorehead (1912) 15 CLR 333 held that an investigative power should not be exercised after proceedings have been brought against the person subject to the investigation. 72 Both of those cases concerned proceedings for an offence. The majority judgments in the latter case indicate that the investigative power is spent, not only in relation to those who are parties to the prosecution, but to those who are not parties to that prosecution. 73 Pioneer Concrete (Vic) Pty Ltd & Ors v Trade Practices Commission & Anor (1982) 152 CLR 460 is not a case involving the exercise of a judicial discretion. The High Court in that case was concerned with the question of the issuing of notices by the Acting Chairman of the Trade Practices Commission under s 155 of the Trade Practices Act 1974 (Cth) on the appellants and three officers of the company, requiring them to furnish information and produce documents. The appellants brought proceedings for declarations that the notices were not authorised by s 155. The High Court held that the power under s 155 was not an exercise of the judicial power of the Commonwealth, and Gibbs CJ said at 467-468: '… I incline to think that if the power were used to assist a party in proceedings already pending, in a way that would give such a party advantages which the rules of procedure would otherwise deny him, there would be a contempt of court. …' His Honour said: '… The power [under s 155] is a drastic power and is capable of abuse and must be exercised with care. However, it was not shown that its exercise in the present case would amount to a contempt of court.' 74 In Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477, the High Court was concerned with a power, after a charge against the Clean Waters Act 1970 (NSW) had been laid, for a prosecutor to serve on a corporation a notice under s 29(2)(a) of that Act, requiring the production of documents relating to the offences. The High Court was primarily concerned with the question of whether the privilege of self-incrimination applied to corporations, and held that it did not. On the subsidiary question of whether resort to a statutory power for the purpose of compelling production of document could amount to an abuse of power, Mason CJ and Toohey J said at 507: 'Once it is accepted, in conformity with the view we take, that by resort to the court's own process in the form of a notice to produce it is possible to compel production of the information sought during the currency of the proceedings, we see no persuasive reason for construing s 29(2)(a) restrictively so that it becomes subject to a limitation which is not applicable to the notice to produce. As the court's own process can be used to compel production, resort to the statutory power for the same purpose cannot amount to an abuse of process.' 75 As that passage illustrates, their Honours expressed the view that where information could be obtained by resort to the court's own process during the currency of proceedings, resort to the statutory power for the same purpose cannot amount to an abuse of process. What their Honours did not have to address was the converse question of whether, where there is power to compel the production of information by the court's own processes, the court should nonetheless, in its discretion, authorise production by resort to a statutory power for the same purpose. 76 In my opinion, it is not the case that the power given under s 83BH is spent because proceedings for a declaration of a contravention have been brought. It truly is a matter of indifference that the penalty proceedings before Justice Merkel involve technically different parties to the present appeal. However, the initiation and continuation of those proceedings is, in my opinion, a telling factor in whether to exercise a judicial discretion about an obligation to produce documents, particularly in circumstances where the precise scope of the request for production of documents that is within power is unclear. 77 The observations of Merkel J in par 49 of his reasons of 15 June 2005 are of some importance on that question: '…Laing and Hadgkiss requested that the Court adjourn the proceeding sine die to await the outcome of the Full Court appeal in relation to the production of the State's documents. One of the oddities of the present case is that there has been no request that the Court order that the relevant documents be discovered in the present proceeding. There may be a reason for that but it is not self-evident. It is correct that the proceeding, as originally formulated, was for the imposition of a penalty, but that will no longer be so. In any event, the privilege that might lead the Court not to grant discovery in the original proceeding may not have been privilege which the State, as opposed to an individual, is able to claim. I need not finally determine that issue at this stage as I am not satisfied that it is not open to the applicant to request discovery and there therefore is no reason to adjourn the proceeding sine die in order to await the outcome of the Full Court appeal.' (Emphasis added) 78 Having regard to the fact that the terms of any declaration which this Court might properly make are uncertain (for the reasons expressed above), that proceedings for a penalty against the State of Victoria for a contravention of the provisions of Part XA of the Act have been struck out, and that the applicant in the proceedings for a declaration of contravention is able to seek discovery of documents relevant to that claim but has not done so, this Court in the exercise of its discretion should decline the invitation to make a declaration in the terms sought before the primary judge, or in some modified form. 79 The parties in proceedings VID 111 of 2005 for a declaration of a contravention of the Act by the State of Victoria can pursue matters in the ordinary way in those proceedings. 80 As to costs, the primary judge made no order as to costs. The order made by the primary judge on 23 November 2004 was simply: 'The application be dismissed.' The notice of appeal sought that the appeal be allowed and the order of the Court below made on 23 November 2004 be set aside, and that in lieu of those orders there be an order that there be a declaration in the terms sought by the appellant. In addition, the appellant sought 'such further or other orders as the Court considers appropriate.' Nothing was said by either party on the appeal about costs, either at first instance or on appeal. 81 In those circumstances, for the reasons expressed above, the only order that in my opinion the Court should make is that the appeal be dismissed. I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.