McIlwain v Ramsey Food Packaging Pty Ltd

The Notice of Motion 1 All four respondents in the principal proceeding which is set down for trial for three weeks commencing on 10 October 2005 (the respondent applicants), by notice of motion heard on 16 August 2005, seek an Order, by paragraph 1 of the notice of motion, pursuant to Order 15A, Rule 8 of the Federal Court Rules that third party verified discovery be given within 28 days of Order by the following persons and organizations of the following classes and categories of documents:

Group 1; Organisations The Australasian Meat Industry Employees Union, an organisation registered under the Workplace Relations Act 1996 (Cth ) by its Federal Secretary (the Federal Union). The Newcastle and Northern Branch of the Australasian Meat Industry Employees Union by its Branch Secretary (the State Branch). The Newcastle and Northern Branch of the Australasian Meat Industry Employees Union an industrial organisation registered under the Industrial Relations Act 1996 (NSW) by its State Secretary (the State Union).

Group 1; Individuals Kathleen May Evans Justin Davis Alick James Delaforce Trevor Glen Moss Paul Francis McKenzie

The classes and categories of documents "(i) All documents relating to discussions and negotiations between the Union or the Branch or the State Union (collectively referred to as "the Union" hereafter for simplicity) concerning the re-opening of the South Grafton Abattoir in 1998; (ii) All documents relating to the conditions of employment to apply at the South Grafton Abattoir upon the re-opening of the Abattoir by the Union in 1998; (iii) All documents relating to the involvement of the Union on behalf of any member of the Union at the South Grafton Abattoir in the period March 1998 to date. Without limiting the generality of this production it shall include the production of all documents recording resolutions passed at meetings of employees of the South Grafton Abattoir including any record as to the persons in attendance at any such meeting; (iv) All documents relating to the US Beef Quota held by the Union. Without limiting the generality of this production it shall include the production of all documents held by the Union relating to the effect of the introduction of the US Beef Quota Management Plan introduced by regulation of 28 June 2002 on employees, including members of the Union employed in processing plants in Australia and in particular, those within the geographic area defined in the rules of the Union of the Newcastle and Northern Branch; (v) The membership book of the Newcastle and Northern Branch as maintained by the Union in the period 1 January 1998 to date; (vi) All documents relating to the engagement and termination of Justin Davis as Assistant Secretary of the Branch of the Union (including the State Union); (vii) All documents relating to the communications as between the Union including persons acting on the Union's behalf, and the Office of the Employment Advocate in the period 1 March 1998 to date and concerning the employment of or the refusal to employ any person by any corporation at the South Grafton Abattoir; (viii) All documents relating to communications between the Union including persons acting on the Union's behalf and the WorkCover Authority of NSW in the period 1 March 1998 to date concerning the operation or proposed operation of the South Grafton Abattoir; (ix) All documents relating to our advising of stock shortage or abattoir closure in the period 1 March 1998 to date; (x) All documents relating to or advising of redundancy and retrenchment at abattoirs and processing plants in the meat industry in Australia in the period 1 March 1998 to date, together with such other documents that may have been produced by the organisers, delegates, officials, officers and employees concerning the operation of the South Grafton Abattoir by the Ramsey Group of Companies including the Respondents."

Group 2; Individuals Stephen Bruce Blackadder Terrence Anthony Brooks Rodger Charles Campbell Gregory Simon Forrest Colin James Hambly Michael Robert McKenzie Paul Gerard Swain John Kevin Young Susan Jane Young, documents described in the following way:

The classes and categories of documents "All documents relating to their attendance at various meetings held at the South Grafton Abattoir and known commonly as "consultative committee meetings" in the period 1 March 1998 to 30 September 2002 together with their attendance at other meetings of employees held in the same period identified relating to the work and the terms and conditions, including proposed terms and conditions for the performance of such work, at the South Grafton Abattoir."

Group 3; WorkCover Authority of New South Wales (WorkCover) and Inspectors 2 From WorkCover and Steve Campbell and Paul Kenneth Wade, Inspectors in the employ of WorkCover, documents described in the following way:

The classes and categories of documents "(i) All documents received by WorkCover from any servant or officer or agent of the Australasian Meat Industry Employees Union, including from the Newcastle and Northern Branch in the period 1 March 1998 to date relating to the premises known generally as the South Grafton Abattoir. (ii) All documents made by any servant officer, employee or agent of WorkCover relating to the premises known generally as the South Grafton Abattoir in the period 1 March 1998 to date. Without limiting this production it shall include any note made by Inspector Steve Campbell and Inspector Paul Kenneth Wade concerning the premises known as the South Grafton Abattoir."

Group 4; The applicant in the principal proceedings and former employees of the applicant 3 From the applicant in the principal proceedings, Peter Leslie McIlwain, in his capacity as the Employment Advocate, and from an organisation or person described as, The Office of the Employment Advocate and from Caroline Sternberg, Lisa Miller, Alan Rowe, Ilona Just and Jim Shearan described as employees of The Office of the Employment Advocate, documents described in the following way:

The classes and categories of documents "(i) All documents forwarded to or received by the OEA from any person acting on behalf of any employee or former employee who performed work at the South Grafton Abattoir in the period 1 March 1998 to date. (ii) All documents made by any servant, officer, employee or agent of the OEA relating to the operations of the South Grafton Abattoir in the period 1 March 1998 to date. Without limiting the generality of this production it shall include all documents related to the engagement of, employment of and termination of any employee of the South Grafton Abattoir in this period 1 March 1998 to date or any refusal to employ any person in the period. In particular, it shall include all documents made by Ms Just and Mr Shearan in the period July 2002 to date in relation to the above matters." 4 By paragraph 2 of the notice of motion, the respondent applicants seek, in the alternative to paragraph 1, leave pursuant to Order 27A, Rule 2 of the Federal Court Rules to issue a subpoena addressed to any or all of the named respondents to the notice of motion identified in paragraph 1 of these Reasons, requiring production of the classes and categories of documents identified there. 5 By paragraph 3 of the notice of motion, the respondent applicants seek leave pursuant to Order 27A, Rule 2 to any one or all of the respondent applicants to issue a subpoena addressed to Alick James Delaforce requiring production of the original tape referred to by him in paragraph 16 of his affidavit sworn 24 August 2004 in the principal proceedings, a transcription of which is exhibit "AJD3" to his affidavit. 6 By paragraph 4 of the notice of motion, the respondent applicants seek leave pursuant to Order 27A, Rule 2 to any one or all of the respondent applicants to issue a subpoena addressed to the General Manager of the Northern Cooperative Meat Company Ltd requiring production of documents described in the following way:

The classes and categories of documents "(i) All documents relating to any application or submission made by the Company to the tribunal for the allocation of discretionary US Quota following the introduction of the Parliamentary Order and Regulations in June 2002; (ii) All documents relating to the grant of or refusal to grant discretionary allocation of US Quota to the Company since June 2002; (iii) All documents relating to the operation of the Company's abattoir from 1 January 2002 to date concerning the working of reduced hours or reduced manning or redundancy or retrenchments or such other change whether related to US Beef quota or otherwise arising; (iv) All documents relating to meetings with and advice to clients of the company concerning the allocation of US Beef quota in the period 1 January 2002 to date; (v) All documents relating to discussions or other communication sent to or received from any industrial organisation and in particular the AMIEU in the period 1 January 2002 to date concerning US Beef quota and its input upon the abattoir's operation." 7 By paragraph 5 of the notice of motion, the respondent applicants seek leave pursuant to Order 27A, Rule 2 to any one or all of the respondent applicants to issue a subpoena addressed to John Graham Broadway requiring production by him of the documents identified by him at paragraphs 10.2 and 10.3 of his Report filed in the proceedings except for documents obtained by him from any of the applicant respondents. 8 On the hearing of the motion, counsel for the respondent applicants conceded that it was not open to them to seek an order pursuant to Order 15A, Rule 8 for third party discovery from the applicant in the principal proceeding, Peter Leslie McIlwain, who is the Employment Advocate appointed pursuant to Part IVA of the Workplace Relations Act 1996. 9 Counsel for the respondent applicants then sought Orders pursuant to Order 15, Rule 8 of the Federal Court Rules for the production of the classes and categories of documents described in paragraph 1 of these Reasons so far as they relate to Peter Leslie McIlwain, the organisation described as The Office of the Employment Advocate and the nominated individuals, Caroline Sternberg, Lisa Miller, Alan Rowe, Ilona Just and Jim Shearan, all former employees of the Employment Advocate. Counsel for the respondent applicants conceded that the Employment Advocate had disputed service of the notice of motion and supporting affidavit of Francis Gregory Hannigan upon the five individuals but submitted that an order for discovery directed to the Employment Advocate pursuant to Order 15, Rule 8 might identify documents that may have been in the possession, custody or power of those five former employees. 10 The notice of motion proceeded on the footing that counsel for the respondent applicants sought, in effect, leave to amend the motion to seek Orders pursuant to Order 15, Rule 8 of the Federal Court Rules in relation to the Employment Advocate and the organisation described as The Office of the Employment Advocate. Paragraph 2 of the notice of motion seeks, in the alternative, an Order granting leave to issue a subpoena to the nominated parties and notwithstanding that such an Order is expressed in the alternative to an Order sought under Order 15A, Rule 8, I will proceed on the assumption that Orders are sought for leave to issue a subpoena to those particular parties in the alternative to the new ground, Order 15, Rule 8. 11 Counsel for the respondent applicants also conceded at the outset that service of the notice of motion and the supporting principal affidavit of Francis Gregory Hannigan had not been effected upon the individual respondents and accordingly Orders pursuant to Order 15A, Rule 8 were not pressed against those parties except for Kathleen May Evans who appeared in response to the notice of motion by counsel retained for the Federal Union, the State Union and the State Branch. However, Orders for leave to issue a subpoena requiring production of the classes and categories of documents identified in paragraph 1 of these Reasons was pressed against each of the individual parties in connection with the documents attributed to those parties.

The principal proceedings 12 The applicant in the principal proceeding is Peter Leslie McIlwain, the Employment Advocate appointed pursuant to Part IVA of the Workplace Relations Act 1996 (the Act). The principal applicant seeks a declaration that each of the respondents has engaged in conduct in contravention of section 298K of the Act, an Order imposing a penalty pursuant to section 298U(a) upon each respondent in respect of the said contraventions, an Order pursuant to section 298U(c) of the Act requiring respondents to pay to 12 nominated individuals, compensation in respect of the effect upon those individuals of the contravening conduct, such further or other Orders under section 298U as may be appropriate and an Order under section 356(b) of the Act that any penalty imposed upon the respondents be paid to the Employment Advocate. 13 In general terms, the core of the conduct is said to be that in or about August and September 2002 all employees but relevantly for the purposes of the proceeding, 12 nominated employees of the respondent companies employed at the South Grafton Abattoir suffered a termination of their employment for a reason prohibited by section 298L(1) of the Act and in or about October and November 2002 each of the respondent companies commenced re-employing labour and refused to re-employ any one of the 12 former employees for a reason prohibited by section 298L(1), or, alternatively, the conduct occurred for reasons that included a prohibited reason. 14 The elements of the contraventions by reference to each employee pleaded in the further amended statement of claim filed on 29 October 2004 are these: (a) Stephen Blackadder. On 27 September 1999, Blackadder gave evidence in a proceeding under an industrial law commenced by Paul Gerard Swain seeking reinstatement of Swain's employment by the first respondent. On 5 October 1999, the third respondent terminated Blackadder's employment. On 25 October 1999, Blackadder filed an application seeking reinstatement. On 29 March 2000, the Australian Industrial Relations Commission (AIRC) ordered, among other things, that Blackadder be reinstated. In August or September 2002, the third respondent terminated Blackadder's employment for the reason (or reasons that included the reason) that Blackadder had obtained the benefit of an order of an industrial body, had participated in a proceeding under an industrial law and had given evidence in Swain's proceeding. The identified reasons were prohibited by section 298L(1)(h), (j) and (k) of the Act. Section 298L(1) provides that conduct occurs for a prohibited reason if it is carried out because the employee: "… (h) is entitled to the benefit of an industrial instrument or an order of an industrial body; or … (j) has participated in, proposes to participate in or has at any time proposed to participate in a proceeding under an industrial law; (k) has given or proposes to give evidence in a proceeding under an industrial law." In October and November 2002, each of the respondents commenced re-employing labour at the South Grafton Abattoir and each of the respondents refused to employ Blackadder. The refusal was for the same prohibited reasons identified in the termination of August or September 2002 (or reasons that included the reason). The termination and the refusal, for the nominated prohibited reasons, is said to constitute a contravention of section 298K(1)(a) and 298K(1)(d) respectively. (b) Terrence Anthony Brooks. At all material times Brooks was an employee of the first respondent, a member of the AMIEU, a member of a consultative committee established in March or April 2002 for the purpose of negotiating a draft enterprise agreement between the respondent companies and their employees (the second committee), a member of a consultative committee established in August 2002 (the third committee) for the purpose of negotiating an enterprise bargaining agreement with the respondent companies and improved working conditions for employees, and dissatisfied with wage levels paid to employees at South Grafton Abattoir. In August or September 2002, Brooks suffered a termination of employment for the reason (or reasons that included the reason) that he was a member of an industrial association and dissatisfied with his conditions. The identified reasons were prohibited by section 298L(1)(a) and (l) of the Act. Section 298L(1)(l) provides that conduct occurs for a prohibited reason if it is carried out because the employee: "(l) in the case of an employee, or an independent contractor, who is a member of an industrial association that is seeking better industrial conditions - is dissatisfied with his or her conditions." In October and November 2002, each of the respondents commenced re-employing labour at the South Grafton Abattoir and each of the respondents refused to employ Brooks. The refusal was for the same prohibited reason identified in the termination of August or September 2002 (or reasons that included the reason). The termination and the refusal, for the identified prohibited reason, is said to constitute a contravention of section 298K(1)(d). 15 The pleading in respect of Blackadder and Brooks establishes the pattern of the allegations in respect of the remaining 10 employees. The elements of the allegations in respect of the remaining 10 employees are these: Rodger Charles Campbell (i) Member AMIEU; (ii) Member of the second committee; (iii) Dissatisfied with wage levels; (iv) Employment terminated for the reason (or reasons that included the reason) that Campbell was a member of an industrial association and dissatisfied with working conditions; (v) Available for re-employment in October and November 2002; (vi) Refusal to employ for the reason (or reasons that included the reason) that Campbell was a member of an industrial association and dissatisfied with working conditions; (vii) Reasons for termination and refusal to re-employ fall within sections 298L(1)(a) and (l); (viii) Contraventions of sections 298K(1)(a) and 298K(1)(d) alleged. Alick James Delaforce (i) Member AMIEU and a delegate of the AMIEU at the South Grafton Abattoir; (ii) Member of a Consultative Committee established in late 2001 (the first committee) for the purpose of negotiating a draft enterprise agreement between the respondent companies and employees at the South Grafton Abattoir; (iii) Member of the second committee; (iv) Dissatisfied with working conditions at South Grafton Abattoir; (v) Gave evidence in a proceeding under an industrial law commenced by Stephen Blackadder seeking Blackadder's reinstatement; (vi) Employment terminated for the reason (or reasons that included the reason) that Delaforce was a member or delegate of an industrial association, dissatisfied with conditions, gave evidence in Blackadder's proceeding and participated otherwise in Blackadder's proceeding; (vii) Available for re-employment in October and November 2002; (viii) Refusal to employ for the reason (or reasons that included the reason) including all those reasons identified at subparagraph (vi); (ix) Reasons for termination and refusal to re-employ fall within sections 298L(1)(a), (j), (k) and (l); (x) Contraventions of sections 298K(1)(a) and 298K(1)(d) alleged. Gregory Simon Forrest (i) Member AMIEU; (ii) Member third committee; (iii) Dissatisfied with wage levels; (iv) Employment terminated for the reason (or reasons that included the reason) that Forrest was a member of an industrial association and dissatisfied with working conditions; (v) Available for re-employment in October and November 2002; (vi) Refusal to employ for the reason (or reasons that included the reason) that Forrest was a member of an industrial association and dissatisfied with working conditions; (vii) Reasons for termination and refusal to re-employ fall within sections 298L(1)(a) and (l); (viii) Contraventions of sections 298K(1)(a) and 298K(1)(d) alleged. Colin James Hambly (i) Employment with the third respondent terminated on or about 1 July 1999; (ii) 21 July 1999, Hambly files an application for relief pursuant to section 170CE of the Act seeking reinstatement; (iii) 30 January 2000, Hambly progresses and participates in the proceeding; (iv) 14 February 2000, AIRC orders Hambly's reinstatement; (v) Employment terminated by third respondent in August or September 2002 for the reason (or reasons that included the reason) that Hambly had the benefit of an order of an industrial body and that Hambly had participated in a proceeding under an industrial law; (vi) Available for re-employment in October and November 2002; (vii) Refusal to employ for the reason (or reasons that included the reason) identified at paragraph (v); (viii) Reasons fall within sections 298L(1)(h) and (j); (ix) Contraventions of sections 298K(1)(a) and (d) alleged. Michael Robert McKenzie (i) Member AMIEU; (ii) Member second committee; (iii) Dissatisfied with wage levels; (iv) Employment terminated for the reason (or reasons that included the reason) that McKenzie was a member of an industrial association and dissatisfied with working conditions; (v) Available for re-employment in October and November 2002; (vi) Refusal to employ for the reason (or reasons that included the reason) that McKenzie was a member of an industrial association and dissatisfied with working conditions; (vii) Reasons for termination and refusal to re-employ fall within sections 298L(1)(a) and (l); (viii) Contraventions of sections 298K(1)(a) and 298K(1)(d) alleged. Paul Francis McKenzie (i) Member AMIEU; (ii) Member first committee; (iii) Dissatisfied with wage levels; (iv) On or about 23 June 1999, McKenzie proposed to give evidence in a proceeding under an industrial law commenced by Jason Robertson seeking Robertson's reinstatement with the first respondent and otherwise participated in Robertson's proceeding; (v) Employment terminated for the reason (or reasons that included the reason) that McKenzie was a member of an industrial association, dissatisfied with working conditions, proposed to give evidence in Robertson's proceeding for reinstatement and otherwise participated in Robertson's proceeding; (vi) Available for re-employment in October and November 2002; (vii) Refusal to employ for the reason (or reasons that included the reason) identified at paragraph (v); (viii) Reasons for termination and refusal to re-employ fall within sections 298L(1)(a), (j), (k) and (l); (ix) Contraventions of sections 298K(1)(a) and 298K(1)(d) alleged. Trevor Glen Moss (i) Member AMIEU and a delegate of the AMIEU at the South Grafton Abattoir; (ii) Member first and third committees; (iii) Dissatisfied with working conditions and seeking improved conditions; (iv) Employment terminated for reason (or reasons that included the reason) that Moss was a member of an industrial association and dissatisfied with working conditions; (v) Available for re-employment in October and November 2002; (vi) Refusal to employ for the reason (or reasons that included the reason) identified at paragraph (iv); (vii) Reasons for termination and refusal to re-employ fall within sections 298L(1)(a) and (l); (viii) Contraventions of sections 298K(1)(a) and 298K(1)(d) alleged. John Kevin Young (i) Member AMIEU; (ii) Member second and third committees; (iii) Dissatisfied with wage levels; (iv) Employment terminated for the reason (or reasons that included the reason) that Young was a member of an industrial association and dissatisfied with working conditions; (v) Available for re-employment in October and November 2002; (vi) Refusal to employ for the reason (or reasons that included the reason) identified at paragraph (iv); (vii) Reasons for termination and refusal to re-employ fall within sections 298L(1)(a) and (l); (viii) Contraventions of sections 298K(1)(a) and 298K(1)(d) alleged. Susan Jane Young (i) Member AMIEU; (ii) Member third committees; (iii) Dissatisfied with wage levels; (iv) Employment terminated for the reason (or reasons that included the reason) that Young was a member of an industrial association and dissatisfied with working conditions; (v) Available for re-employment in October and November 2002; (vi) Refusal to employ for the reason (or reasons that included the reason) identified at paragraph (iv); (vii) Reasons for termination and refusal to re-employ fall within sections 298L(1)(a) and (l); (viii) Contraventions of sections 298K(1)(a) and 298K(1)(d) alleged. Paul Gerard Swain (i) On or about 15 April 1999, Swain's employment with the first respondent terminated; (ii) On or about 6 May 1999, Swain files an application for relief pursuant to section 170CE of the Act seek reinstatement; (iii) Swain progresses and participates generally in the proceeding; (iv) On 24 December 1999, the AIRC orders compensation be paid to Swain; (v) On 6 June 2000, the AIRC orders Swain's reinstatement; (ix) Employment terminated for the reason (or reasons that included the reason) that Swain had the benefit of an Order of an industrial body and Swain had participated in a proceeding under an industrial law; (x) Available for re-employment in October and November 2002; (vi) Refusal to employ for the reason (or reasons that included the reason) identified at paragraph (ix); (vii) Reasons for termination and refusal to re-employ fall within sections 298L(1)(h) and (j); (viii) Contraventions of sections 298K(1)(a) and 298K(1)(d) alleged. 16 By an amended defence to the further amended statement of claim, filed by the respondents on 22 March 2005, the respondents in respect of Delaforce admit that at all material times he was a member and delegate of the AMIEU at South Grafton Abattoir but otherwise say that they do not know and cannot admit whether the relevant employees were members of the AMIEU or members of the particular consultative committee. The respondents deny that the termination of each individual was for any of the prohibited reasons pleaded against them and similarly deny that the refusal to re-employ any particular individual was for a prohibited reason. The respondents deny contraventions of section 298K(1) of the Act. The respondents contend that any employment relationship between any one of the employees and the third respondent ceased on 3 September 2001 when the first respondent became the employer of labour at the South Grafton Abattoir. 17 By an affidavit sworn by Stuart Bruce Ramsey on 17 November 2004 filed in the principal proceedings and read by the respondent applicants in support of the notice of motion, Ramsey says that the reasons for the termination of employment of all production employees and the consequent closure of the abattoir was a shortage of available stock due to the combined affect of the loss by the abattoir of a proportion of a United States Beef Quota allocation with a significant reduction in access to the United States market for beef product produced by the abattoir and the continued affect of drought conditions. 18 Due to these factors, Ramsey says that on or about 21 August 2002 he decided that the operations of the abattoir could no longer be continued economically. Ramsey says that under the terms of the Australian Workplace Agreements, it was his understanding that the employment of all production employees associated with the killing, slicing, boning and packaging of meat, would need to be terminated. Ramsey says the abattoir did not slaughter after 30 August 2002 and the boning rooms ceased operation on Monday, 2 September 2002. Ramsey says that as work became available, offers of employment could then be made to former production employees for re-engagement as casual employees during the period of stock shortage whilst the abattoir was operating on a limited basis. 19 Ramsey says the abattoir remained closed until 13 September 2002 when slaughtering was recommenced and the boning room began operations again on 16 September 2002. Ramsey says that the production supervisor was given a direction to re-engage those numbers of employees required to recommence operations and to the best of Ramsey's recollection, the persons contacted were those identified by Mr John Broadrick, the production supervisor and Paul Marshall, the personnel officer, based on the skills required within the abattoir. Mr Ramsey says that he did not become involved in the initial process as to those individuals who would be offered work except with respect to Mr Stephen Blackadder who was expressly retained "on the payroll" due to proceedings that were then on foot. Ramsey says that at all relevant times he was the person with effective control of each company within the Ramsey group of companies including each of the four respondent applicants and he made the decision to close the abattoir in August 2002 by reason of the stock shortage. Ramsey says that he made the decision that all production employees should be terminated at that time. 20 The principal matter in question then, on the face of the pleadings and in the context of the affidavits filed in the proceedings, is whether, in respect of the termination of the employment of each individual and the failure to re-employ each individual, Ramsey acted for reasons that either were or included prohibited reasons or whether the conduct was in each case for the reasons identified in Ramsey's affidavit.

The Substantive Law 21 Some important features of the substantive law raised on the pleadings against which the question of the relevance of the classes and categories of documents sought by the notice of motion is to be tested are these: (a) section 83BA of the Act provides that there is to be an Employment Advocate; (b) the functions of the Employment Advocate are specified by section 83BB(1) and include the investigation or contraventions of Part XA; section 83BB(1)(f); (c) Part XA deals with freedom of association. The objects of Part XA apart from the objects set out in section 3 of the Act relevant to these proceedings are to ensure that employees are free to join industrial associations of their choice and to ensure that employees are not discriminated against or victimised because they are, or are not, members or officers of industrial associations; (d) section 298K(1) prescribes a norm of conduct by providing that an employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to, relevantly for these proceedings, dismiss an employee or refuse to employ another person; sections 298K(1)(a) and (d); (e) the section 298K(1)(a) or (d) conduct occurs for a prohibited reason if it is "carried out" because the "employee" or "person concerned" attracts the characteristics set out in subparagraphs (a) to (o) of section 298L(1) of the Act. The use of the word "because" suggests that the conduct must have been carried out "for the reason that" the individual exhibited features which are reflected in subparagraphs (a) to (o). In other words, on the face of section 298L, the section 298K(1) conduct must have a direct relationship with the factors listed in section 298L(1) and thus the reason for the conduct becomes a prohibited reason. Where there are a multiplicity of reasons for the conduct, the prohibited reason must be an operative reason within the field of reasons; (f) these provisions were considered by Nicholson J in Maritime Union of Australia & Ors v. Geraldton Port Authority & Ors (1999) 93 FCR 34 where His Honour said at page 69 (para. 224): "In my view the words 'or for reasons that include a prohibited reason' in s.298K(1) effect a change to the law and permit a reason to be an operative reason provided it is one of the reasons for the conduct. It would not therefore have to be the 'substantial' reason. It would have, of course, to be 'operative' - that is it would have to be a reason. Section 298L is to be understood subject to that requirement." See also Australasian Meat Industry Employees' Union v. Belandra Pty Ltd (2003) 126 IR 165 and Maritime Union of Australia v. CSL Australia Pty Ltd (2002) 113 IR 326. (g) sections 298T(1) and 412(1)(a) invest original jurisdiction in the Court in applications for orders in respect of conduct in contravention of Part XA including Orders under section 298U; (h) the Employment Advocate may make such an application; section 298T(2); (i) section 298U provides, relevantly for these proceedings, that in respect of conduct in contravention of Part XA, the Court may make an order imposing upon a person whose conduct contravened or is contravening a provision in question, a penalty. The Court may also order such a person to pay compensation of such amount as the Court thinks appropriate and any other consequential orders; (j) section 298V provides: "If: (a) in an application under this Division relating to a person's or an industrial association's conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and (b) for the person or industrial association to carry out the conduct for that reason or with that intent would constitute a contravention of this Part; it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the person or industrial association proves otherwise." (k) on the question of the reversal of the onus of proof; see Maritime Union of Australia & Ors v. Geraldton Port Authority & Ors (1999) 93 FCR 34 at page 68 (para. 221) where Nicholson J said: "If the applicant proves the conduct and alleges that the conduct was carried out for a prohibited reason, it is for the respondent to prove, on the balance of probabilities, that it was not motivated by an impermissible reason: s.298V; Heidt v. Chrysler Australia Ltd (1976) 26 FLR 257 at 266-271 per Northrop J. The reversal of the onus in respect of proof of the reasons for the conduct is a recognition that 'the circumstances by reason of which an employer may take action against an employee are, of necessity, peculiarly with the knowledge of the employer': Heidt v. Chrysler Australia Ltd at 267". Whether the conduct of the employer entity has been actuated by a prohibited reason or reasons that include a prohibited reason is a question of fact; see Maritime Union of Australia & Ors v. Geraldton Port Authority & Ors (1999) 93 FCR 34 at paragraph 295. The existence of a cogent alternative explanation for the conduct might be an indication that the prohibited reason did not so actuate the conduct: Australasian Meat Industry Employees' Union v. Belandra Pty Ltd (2003) 126 IR 165 at [220] (l) section 298X provides that the contravention of Part XA is not an offence. A proceeding by the Employment Advocate pursuant to section 298T for orders pursuant to section 298U is a civil proceeding notwithstanding that the respondent companies are susceptible to a penalty should a contravention of section 298K(1) be established. The standard of proof is the balance of probabilities; see section 140 of the Evidence Act 1995; see also the judgment of Branson J in Employment Advocate v. Williamson & Anor (2001) 111 FCR 20 at paras. [63] to [68] on the question of the relationship between the standard of proof and the gravity of the matters alleged; (m) section 356 provides that a Court that imposes a monetary penalty under the Act (other than a penalty for an offence) may order that the penalty, or a part of the penalty, be paid into the Consolidated Revenue Fund or to a particular organisation or person.

The Affidavit Material 22 In support of the application for orders pursuant to Order 15, Rule 8, Order 15A, Rule 8 and orders for leave to issue subpoenas to the addressees, the respondent applicants relied upon a principal affidavit of Francis Gregory Hannigan sworn 20 July 2005 and filed on 21 July 2005. In order to establish the tests that need to be met under the Rules, however, the respondent applicants, in addition to the Hannigan affidavit, also relied upon 18 further affidavits identified in the following schedule to support the argument that documents or classes or categories of documents in the possession, power or control of the various groups of addressees (set out in paragraphs 1 and 4 of these Reasons) are relevant to the substantive issues in the proceedings. Additional Affidavits No. Deponent Sworn Filed

1. Stuart Bruce Ramsey 17.11.04 17.11.04
2. Bruce Standen 24.09.04 18.11.04
3. Kathleen May Evans 20.08.04 23.08.04
4. Justin Davis 20.08.04 23.08.04
5. Paul Brown 10.03.04 11.03.04
6. Paul McKenzie 19.08.04 23.08.04
7. Trevor Moss 25.08.04 27.08.04
8. Alick Delaforce 24.08.04 25.08.04
9. Colin James Hambly 19.08.04 23.08.04
10. Stephen Blackadder 19.08.04 23.08.04
11. Terrence Anthony Brooks 20.08.04 23.08.04
12. Paul Swain 19.08.04 23.08.04
13. Michael McKenzie 20.08.04 23.08.04
14. Gregory Simon Forrest 20.08.04 23.08.04
15. Rodger Charles Campbell 19.08.04 23.08.04
16. John Kevin Young 19.08.04 23.08.04
17. Susan Jane Young 19.08.04 23.08.04
18. John Graham Broadway 09.03.04 10.03.05

23 In the course of the hearing of the motion, counsel for the respondent applicants formally read and relied upon all of the above affidavits but in making submissions in support of the application, particular paragraphs of particular affidavits to which I will turn shortly were said to satisfy the tests under the Rules. In order to deal with the application, I have read all of the above affidavits and exhibits but in doing so I have primarily read the material for the purpose of giving context to the submissions in relation to the particular paragraphs to which I was taken. I have not forensically examined all of the affidavits and exhibits to identify references which might support the applicant respondents in the relief they seek. I have, however, read all the material relied upon to understand the totality of the material within which the particular submissions were made. 24 Before turning to the affidavit material, I propose to set out the general principles governing the tests to be satisfied under the particular rules. The rules in question are these: "Order 15, Rule 8 - Order for Particular Discovery Where, at any stage of the proceeding, it appears to the Court from evidence or from the nature or circumstances of the case or from any document filed in the proceeding that there are grounds for a belief that some document or class of document relating to any matter in question in the proceeding may be or may have been in the possession, custody or power of a party, the Court may order that party - (a) to file any affidavit stating whether that document or any document of that class is or has been in his possession, custody or power and, if it has been but is not then in his possession, custody or power, when he parted with it and what has become of it; and (b) to serve the affidavit on any other party." "Order 15A, Rule 8 - Discovery from Non-Party The Court may order that a person who is not a party and in respect of whom it appears that the person has or is likely to have or has had or is likely to have had in the person's possession any document which relates to any question in the proceeding shall make discovery to the applicant of any such document. " "Order 27A - Leave to Issue a Subpoena (1) This order applies to a subpoena that is to be issued under Order 27. 2(1) A subpoena must not be issued without the leave of the Court or a Judge. 2(2) The Court or a Judge may give leave to issue a subpoena: (a) generally or in relation to a particular subpoena or subpoenas; and (b) subject to conditions. 2(3) An application for leave to issue a subpoena may: (a) be made by a party to a proceeding without notice to the person who is the subject of the order expressed in the subpoena (the addressee) or any other party to the proceeding; and (b) be decided by the Court or a Judge in the absence of the addressee or any party to the proceeding. …"

General Principles 25 Order 15, Rule 8 seems to embody the following process. A party dissatisfied with the completeness of discovery by another party might seek to identify either a document or a class of document as the focus for an application. That document or class of document must relate to a matter in question in the proceeding. The grounds for a belief that some document or class of documents relating to a matter in question exists can be demonstrated to the Court either from evidence adduced by the applicant for an order or from the nature or circumstances of the case (reflected in the pleadings) or from any document filed in the proceedings. The applicant must then demonstrate that such a document or class of document either may be or may have been in the possession, custody or power of a party. Once those matters are demonstrated, the Court may order such a party to file an affidavit stating whether that document or any document of that class is or has been in the possession, custody or power of the party. 26 The focus of the inquiry is not surprisingly directed towards identifying the existence of a particular document or class of document because the party seeking an order for particular discovery will already have had the benefit of general discovery or the benefit of an order made at a directions hearing for discovery framed in whatever way appropriately accommodates the proceeding. 27 It may, however, emerge, in a particular case, that a party has excluded a class of documents based upon a misunderstanding of the relevance of that class of documents to issues reflected in the pleadings. In such a case, the question is not whether there is a specifically identified document but whether, plainly enough, a class of documents exist which are relevant to the issues raised in the pleadings but have not been the subject of discovery by another party consistent with its general obligation or an order made at the directions hearing; Mulley v. Manifold (1959) 103 CLR 341 at 343, Menzies J. 28 The rule confers a discretion to require particular discovery of a document or class of documents which relate to any matter in issue in the proceedings even though the party from whom the document or class of document is sought may not have joined issue with the applicant for particular discovery, on the pleadings; Murex Diagnostics Australia Pty Ltd v. Chiron Corporation (No. 2) (1995) 62 FCR 424 at page 430, Burchett J, paragraphs [D] and [E]. 29 The rule is not limited to a case of defective compliance with an earlier order; Murex Diagnostics Australia Pty Ltd v. Chiron Corporation (No. 2) (1995) 62 FCR 424 at page 430, Burchett J, paragraph [C]. 30 The requirements of the rule are not to be avoided by simply issuing a subpoena duces tecum upon an opposing party. 31 The proper role of Order 15, Rule 8 and its relationship to the use of the subpoena power was discussed by Branson J in Diddams & Ors v. Commonwealth Bank of Australia & Anor [1998] FCA 497 (NG 3401 of 1996) where Her Honour said: "However, the usual legal processes by which a party to a proceeding in the Court obtains access to the documents of opposing parties are the processes of discovery and inspection. Where the Court has by detailed directions set a timetable for the undertaking of the procedural steps necessary to bring a matter to readiness for trial, including a timetable for the discovery and inspection of documents, it is to be expected that the parties will seek such documents 'relating to any matter in question between [them]' as they wish to have access to through the process of discovery and inspection (O15 r2(2)). If such documents are sought by subpoena or notice to produce issued close to trial, the Court's endeavours to manage the process of the preparation of the matter for trial, and to ensure that no interlocutory issues are outstanding at the hearing date, may be subverted." O 15, r 8 of the Federal Court Rules provides a procedure whereby particular discovery may be sought where a party is dissatisfied with the extent of discovery made by an opposing party. The discretion given to the Court by O 15, r 8, and the requirement that, before any order may be made under that rule, it should appear to the Court '… from evidence or from the nature or circumstances of the case or from any document filed in the proceeding that there are grounds for a belief that some document or class of document relating to any matter in question in the proceeding may be or may have been in the possession, custody or power of [the] party', ought not, in my view, to be able to be avoided by the simple device of serving a subpoena duces tecum upon an opposing party. … The rules of court do not place on judges the responsibility of determining for the parties which of their respective documents are required to be discovered. Judges have not traditionally assumed such a role. I do not consider that, by choosing to issue a subpoena, rather than to seek an order pursuant to O 15, r 8 of the Federal Court Rules, a party should be able to achieve the result of placing such a responsibility on a judge. Moreover, in this case it would have been inappropriate for the conduct of the trial to have been further disrupted by my being required to read documents produced in response to a subpoena called during the course of the taking of evidence." 32 In Australian Competition and Consumer Commission v. Shell Company of Australia Ltd (1999) 61 ALR 686, Cooper J explained the rationale for the principle as one where a particular method had been prescribed by the rules for achieving particular discovery consistent with established principle and it was therefore impermissible to seek to achieve the same objective through the subpoena process and thus avoid the requirements of the rules and the proper process. In addition, His Honour at paragraph [51] said: "[51] Like the case before Branson J in Diddams v Commonwealth Bank of Australia, this case has been the subject of a managed timetable and, other than the issues raised by this subpoena and motion, the matter is ready for trial. In those circumstances the ACCC should not be permitted to avoid the evidentiary onus required by O 15, r 8 in order to go behind two affidavits of documents provided by Shell by issuing a subpoena in this form." 33 As to Order 15A, Rule 8, Nicholson J in McLernon Group Insurance Pty Ltd v. Biron Corporation Limited & Anor [1995] FCA 500 identified the features adopted by Burchett J in Richardson Pacific Ltd v. Fielding & Ors (1990) 26 FCR 188, governing the use of the rule. His Honour, Nicholson J, said: "1. The purpose of the order is, quite expressly, to enable discovery to be obtained in some case where anything less than the broad obligations imposed by an order for discovery would simply not meet the case. 2. The rule provides a more practical and convenient means by which a party may obtain an opportunity to examine documents in advance of the hearing with sufficient time to take such further steps as a perusal of them may suggest. 3. The rule is intended, not for the general run of case, but for cases which do have about them something outside of the ordinary so that, by this means, the Court can go beyond what could be done upon a subpoena duces tecum issued in advance. 4. Normally an order for disclosure of documents by a stranger to proceedings should be made only when the stranger to the proceedings has the only copies of the particular documents, disclosure of which is sought, and the party to proceedings, who is seeking disclosure, has exhausted his or her rights with respect to discovery against the other party to proceedings. 5. That, however, is not a fetter restricting the applicability of the rule in cases where the evidence suggests it would provide an appropriate and reasonable solution to real problems. 6. In that particular case, there was a close relationship between the respondents and the non-parties sought to be subjected to the requirement of giving discovery and the relationship was quite unusual so that the circumstances were extraordinary. 7. In the drafting of orders sought for third party discovery tighter lines should be followed than may be usually the case, although circumstances may make a broad order appropriate. 8. A relevant consideration is whether it is plainly probable that there do exist documents relevant to the issues in the case which orders in the nature sought would be likely to bring to light. 9. The jurisdiction under the rules should be exercised with caution. 10. The exercise of the discretion to make an order under the rule should not be fettered by any precise rules and the above matters should be taken as general guides." 34 In Re La Rosa; Ex parte Norgard, French J (unreported, 26 October 1992) seemed to accept that the rules relating to inter-parties discovery and the rules governing the issue of subpoenas might well, although not in every case, exclude resort to Order 15A, Rule 8. 35 In relation to the principles governing when leave ought to be granted to issue subpoenas, these principles emerge: (a) A writ of subpoena duces tecum is competent against both a party and a stranger to the proceeding: The Adelaide Steamship Company v Spalvins (unreported, O'Loughlin J, 1 August 1997). (b) A request for a subpoena cannot be used to disguise an application for discovery of documents, or as an alternative to an application for further and better discovery. It is not permissible to use to a writ of subpoena duces tecum as a substitute for discovery of documents against a party to the proceeding. The subpoena process should not have the effect of discovery against a person who, as a stranger to the proceeding, is not liable to make discovery: The Adelaide Steamship Company v Spalvins; The Commission for Railways v Small (1938) SR (NSW) 564; Diddams v Commonwealth Bank of Australia [1998] FCA 497. The subpoena process cannot be used to initiate an inquiry as to relevance outside of the time and place identified by the rules for discovery. (c) Reference has already been made to the principles identified by Branson J in Diddams & Ors v. Commonwealth Bank of Australia. (d) The documents for production must be identified with reasonable particularity. (The Commissioner for Railways v Small (1938) SR (NSW) 564, 574-575 per Jordan CJ). The category of documents must not be so wide as to be oppressive. (e) The documents must be relevant to an issue raised on the pleadings and be used to elicit documents to support the applicant's existing case. It cannot be used for purposes of 'fishing' or for the purpose of determining a preliminary question as to whether the party has a supportable case (Hennessy v Wright (1888) 21 QBD 509), or to investigate the character of the opposing party's evidence (Griebart v Morris [1920] 1 KB 659, 666). (f) The test for relevance does not require that a party demonstrate direct relevance to the contest between the parties. Rather, the documents must have some potential relevance to the pleadings as they stand. In Australian Gas Light Company v Australian Competition & Consumer Commission [2003] FCA 1101, French J summarised the matters which are relevant to the grant of leave: "It is not appropriate to be overly prescriptive in setting out criteria for the grant of leave to issue a subpoena. Plainly, the documents sought must have at least some apparent potential relevance to the matters in issue in the litigation. The assistance that the requesting party may derive from the production of such documents must be taken into account. Case management considerations are also relevant. A wide-ranging subpoena, seeking documents of doubtful relevance at great inconvenience to, or that risk compromising the commercial privacy of, a third party, may not readily attract the grant of leave. Where the issue of such a subpoena is likely to delay progress to trial because of the legitimate interests of a party in resiting its issue, that may also be a practical factor to be weighed." (g) The same notion was expressed in Small (575) and Dorajay Pty Limited v Aristocratic Leisure Limited [2005] FCA 588, [34] in requiring the existence of a legitimate forensic purpose for the production of documents. (h) In Trade Practices Commission v Arnotts Limited (No. 2) (1989) 21 FCR 306, Beaumont J said that the question of whether a subpoena should go can conveniently be addressed by reference to two questions. First, does the material sought by the subpoena have an apparent relevance in a descriptive or adjectival sense rather than a substantive sense? Does the subpoena have a legitimate forensic purpose to this extent from the perspective of the party issuing the subpoena? Secondly, does the subpoena cast a serious and unfair burden or prejudice upon the respondent to the subpoena? (i) Spender J in Cosco Holdings Pty Ltd v Commissioner for Taxation [1997] FCA 1504 suggested that adjectival relevance looks toward the possibility whether the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings. (j) When a party contends material that either is or may be or may have been in the possession, custody or power of a respondent relates to any question or issue raised on the pleadings, they will be taken to mean that the material is relevant in the sense contemplated by section 55 of the Evidence Act 1995 (Cth) namely, evidence that if accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings. This is the substantive relevance of the material. The test for the issue of the subpoena is whether the material appears to have relevance in the sense of throwing light on at least some of the issues in the principal proceeding. (k) The relevance of the documents must not be disproportional to any benefit that their production might have for the respondent: Dorajay [34]. (l) A subpoena ought not issue in circumstances where it would unduly disrupt the conduct of the trial by requiring the Court to read documents which could have been obtained at an earlier stage in the proceedings: Diddams v Commonwealth Bank of Australia [1998] FCA 497. (m) The issue of the subpoena must not, in all the circumstances be oppressive in terms of its impact on the recipient. That is, the issue of the subpoena must not be 'seriously unfairly burdensome, prejudicial or damaging' and 'productive of serious and unjustified trouble and harassment'. (Hamilton v. Oades (1989) 166 CLR 486, 502, Oceanic SunLine Special Shipping Co. Inc. v. Fay (1988) 165 CLR 197, Seven Network Limited v News Limited (No 5) [2005] 216 ALR 147, [12]. (n) The issue of a subpoena against a stranger to the proceeding is more likely to succeed later in the proceeding. Though there is no formal barrier to a subpoena to produce being returnable prior to the hearing, the document may well be premature where no trial date has been fixed. Where the proceeding is of considerable evidentiary complexity there is stronger force to serving the subpoena at an earlier stage: Hughes v Western Australian Cricket Association (1986) 66 ALR 541. (o) In Dorajay Pty Limited v. Aristocrat Leisure Limited [2005] FCA 588 at paragraph [17], Stone J noted the observations of Waddell J in Spencer Motors Pty Ltd v. LNC Industries Ltd [1982] 2 NSWLR 921 at 927, summarising the views of Moffitt P in National Employers' Mutual General Association Ltd v. Waind & Hill [1978] 1 NSWLR 372 to the effect that whether subpoenas are oppressive or an abusive process depends on whether "it is reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case". Her Honour said at paragraph [18]: "These authorities show that the criteria by which one determines whether a subpoena should be set aside, in whole or in part, may be expressed in different ways but ultimately, they all come down to whether such action is required to prevent an abuse of the processes of the court to prevent injustice. As Deane and Gaudron JJ recognised [Hamilton v Oades (1989) 85 ALR 1 at p.11] in the comments quoted by Beaumont J [in Trade Practices Commission v. Arnotts Limited], various terms may be used in focusing these concerns on the circumstances of a particular case. In this case, whether the documents are relevant (in the sense used by Beaumont J) will determine the issue provided that the requirements of the subpoena are not otherwise oppressive." 36 Although the rule is not concerned with cases of defective compliance, it nevertheless remains necessary to establish grounds for a belief that a document or class of document relating to a matter in question in the proceedings exists and such a document or class of documents may be or may have been in the possession, custody or power of the respondent party to the motion. 37 The time when the application is made, its proximity to the trial, the contextual relevance of the application having regard to the management of the proceedings and the sequence of directions orders also go to the discretion as to whether an order for particular discovery ought to be made.

History of the Interlocutory Steps in the Conduct of the Principal Proceeding 38 The principal proceeding has been the subject of extensive case management and many orders for directions in order to ensure that the matter is in a position to proceed to trial. Some aspects of the interlocutory steps (not all) which give an indication of the extent of the case management of the matter are as follows:

1. 9 May 2003, the Applicant filed the Application and Statement of Claim.
2. 29 May 2003, Kiefel J made the following directions: '(a) Each Respondent file and serve a Defence to the Statement of Claim by 3 July 2003. (b) The Applicant give discovery of documents with verification by 25 July 2003. (c) Each respondent give discovery of documents with verification by 14 August 2003. (d) The parties attend mediation by 29 August 2003. (e) Matter listed for further Directions on 26 September.'
3. 9 July 2003, the then Respondents (First and Second Respondents) filed their Defence.
4. 11 July 2003, the Applicant sought particulars of the Defence as to paragraphs 130(a), 130(b), 130(e) and paragraph 131.
5. 12 August 2003, the Applicant filed a Notice of Motion seeking leave to join the Third and Fourth Respondents and leave to file an Amended Application and Amended Statement of Claim.
6. 25 August 2003, Kiefel J granted leave to amend the Application and Statement of Claim and leave to join the Third and Fourth Respondents and made the following Directions: '(a) Respondents provide particulars in compliance with the Applicant's request of 11 July 2003 by 12 September 2003. (b) Applicant provide particulars of paragraph 12A of the proposed Amended Statement of Claim by 3 October 2003. (c) Respondents file and serve an Amended Defence by 24 October 2003. (d) Applicant give discovery of documents with verification by 8 November 2003. (e) Respondents give discovery of documents with verification by 22 November 2003. (f) Matter listed for further Directions on 25 November 2003.'
7. 26 September 2003, the Applicant served an Amended Application and Amended Statement of Claim.
8. 24 October 2003, Respondents filed an Amended Defence.
9. 11 November 2003, the Applicant filed a List of Documents in the Court.
10. 24 November 2003, Respondents served unverified list of documents.
11. 25 November 2003, further Directions made by Kiefel J: (a) Each of the Respondents provide particulars of paragraph 130 of the Amended Defence as sought in the request made by the Applicant on 11 July 2003 within 10 days of the date of this order. (b) Each of the Respondents give discovery of documents with verification by 2 December 2003. (c) Inspection of documents be completed by 21 January 2004. (d) The Applicant file and serve the affidavits and expert reports upon which he intends to rely by 18 February 2004. (e) Each of the Respondents to file and serve the affidavits and expert reports upon which they intend to rely by 18 March 2004. (f) The Applicant to file and serve affidavits in reply by 31 March 2004. (g) The Matter to be adjourned for further Directions to 7 April 2004.
12. 28 November 2003, Respondents filed the verified list of documents.
13. 18 February 2004, Applicant advised Respondents that the Applicant's affidavits could not be provided by the due date but nominated 27 February 2004 for compliance.
14. Applicant served filed copies of Affidavits on 9, 10 and 11 March 2004.
15. 7 April 2004, Kiefel J made the following Directions: '(a) the Respondents file and serve their affidavits, including expert reports by 17 May 2004; (b) the Applicant file and serve any affidavits in reply by 9 June 2004; (c) Further Directions Hearing, 11 June 2004.'
16. 12 May 2004, Applicant claimed Respondents had not discovered a number of identified documents.
17. 14 May 2004, Respondents advised they could not file affidavits in compliance with the timetable.
18. 17 May 2004, Applicant advised that all affidavits filed on his behalf would be read at the hearing.
19. 26 May 2004, the Respondents filed a Notice of Motion seeking the vacating of previous Directions, removal from the Court file of nominated affidavits filed by the Applicant and further orders.
20. 23 June 2004,Respondent's Notice of Motion seeking to have a substantial part of the Applicant's evidence struck out as irrelevant, heard. seeking to have a substantial part of the Applicant's evidence struck out as irrelevant to the facts in issue. The Court (Kiefel J) made the following Directions:- '(a) Notice of Motion dismissed.; (b) Respondents file and serve Affidavit material on or before 21 July 2004.; (c) Applicant file and serve Affidavit material in reply on or before 11 August 2004; and (d) Matter listed for further directions on 20 August 2004.'
21. 29 June 2004,Applicant advised the Respondents that it they intended to file and serve further affidavits from each of the deponents who had sworn affidavits previously (apart from John Graham Broadway) and the and that tprofurther affidavits were intended to replace the sworn affidavits previously filed. To accommodate the provision of the Applicants revised affidavits a A revised timetable was agreed, as follows: (a) The directions of 23 June 2004 vacated. (b) The Aapplicant file and serve further affidavits upon which he intends to rely by 20 August 2004. (c) The Respondents file and serve any affidavits upon which they intend to rely by 24 September 2004. (d) The Applicant file and serve any affidavits in reply by 14 October 2004; and (e) Further directions, 15 October 2004.
22. 16 July 2004,Kiefel J made orders in terms of the revised timetable.
23. 23 August 2004, the Applicant filed further affidavits.
24. 14 September 2004, Applicant advised Respondents that save for the affidavit of John Graham Broadway no reliance would be placed on the prior affidavits. they would not be reading any of the March 2004 Affidavits apart from that sworn by John Broadway.
25. 7 October 2004,ApplicantRespondents filed a Notice of Motion seeking leave Amendments to amend the Amended Application and Amended Statement of Claim and vacate orders made 16 July 2004 by Kiefel J.
26. 15 October 2004,Kiefel J made the following orders: as filed by the Applicant is heard as to amending the Amended Application and Amended Statement of Claim. Further Directions are made by Court (Kiefel J):
27. By way of consent: '(a) The Amended Application and Amended Statement of Claim be further amended in accordance with the documents marked "A" and "B" respectively attached to the Applicant's Notice of Motion dated 7 October 2004; (b) The orders of 16 July 2004 be vacated. (c) The Respondents file and serve any affidavits upon which they intend to rely by 17 November 2004 and no later; (d) The matter listed for trial directions on 3 December 2004.'
28. 29 October 2004, Applicant filed aFfurther aAmended Application and fFurther aAmended Statement of Claim.
29. 2 November 2004, Applicant served filed Further Amended Application and Further Amended Statement of Claim.
30. 17 November 2004, Respondents filedaffidavits in reply.
31. 17 and 18 November 2004, Respondents served filed affidavits in reply.
32. 3 December 2004, Kiefel J made the following Directions: '(a) Applicant request further discovery from Respondents and file and serve a consolidated request for further and better particulars by 17 December 2004; (b) The Respondents file and serve an Amended Defence within seven (7) days; (c) Respondents provide disclosure and further and better particulars by 28 January 2005; (d) Applicant put on affidavits in reply by 28 March 2005; (e) Matter set down for trial for three (3) weeks commencing 12 July 2005 and ending 29 July 2005; (f) Further directions to be given on 15 April 2005.'
33. 9 December 2004, Respondents filedtheir Defence to Further Amended Statement of Claim.
34. 10 December 2004, Respondents served Defence to Further Amended Statement of Claim on Applicant.
35. 20 December 2004, Applicant served Notice for Discovery.
36. 20 December 2004, Applicant served notice requesting particulars and requested outstanding particulars previously requested on 17 December 2003.
37. 23 February 2005, Applicant filed Notice of Motion seeking verified discovery and particulars.
38. 16 March 2005,Kiefel J made the following orders: '(a) Orders of 3 December 2004 be vacated; (b) Respondents have 7 days to consider whether to file an amended defence deleting paragraph 130 and correcting paragraph 131(vi) and to file such pleading if necessary; (c) if paragraph 130 of the Defence is not deleted or amended then the particulars sought in the request of 20 December 2005 be provided within 30 days; (d) the Respondents provide verified disclosure requested on 20 December 2004 within 60 days; but (e) if paragraph 130 of the Defence is deleted the disclosure required in paragraph 1.5 of the request is no longer to be provided.
39. 22 March 2005, the Respondents filedan Amended Defence to fFurther Amended Statement of Claim in accordance with dDirections of Kiefel J made 16 March 2005 deleting paragraph 130 and amending paragraph 131(vi).
40. 22 March 2005, Respondents served Amended Defence to Further Amended Statement of Claim.
41. 13 May 2005, Respondents fileda List of Documents and provideding verified discovery. losure
42. 13 May 2005, Respondents serveda List of Documents providing verified discovery. losure
43. 28 June 2005,the Court advisedthe parties that the matter was listed for hearing for a period of three (3) weeks commencing 10 October 2005.
44. 21 July 2005, Applicant filed Notice of Motion seeking orders for and order third party discovery and subpoenaed and leave to issue subpoenas.
45. 22 July 2005, Applicant requested inspection of Respondent's documents. Inspectionhas been arranged to take place at the offices of the Respondent's Solicitors on Monday, 22 August 2005.
46. 22 July 2005,the Applicant advisedRespondents that Affidavits in reply withto be served progressively upon the Respondents over a period of within three (3) weeks from 22 July.
47. 22 July 2005, Applicant served Notice to Produce upon Respondents. with documents to be made available on the same date for inspection being Monday 22 August 2005.

The Affidavit Evidence 39 The principal affidavit in support of the application served with the notice of motion is the affidavit of Francis Gregory Hannigan. Mr Hannigan deposes to these matters: "… 6. The affidavits upon which the Applicant intends to rely at hearing raise issues concerning the industrial relations of the South Grafton Abattoir from on or about March 1998 to date including the involvement of the relevant unions and their officers, organisers, delegates and members. I identify these persons to include the following persons: Kathleen May Evans Justin Davis Alick James Delaforce Trevor Glen Moss Paul Francis McKenzie each of whom have sworn an affidavit filed in the proceedings by the Applicant and who will be cross-examined in the proceedings. 7. Each of these persons within the affidavits filed depose extensively on a range of matters concerning the conduct of industrial relations at the South Grafton Abattoir commencing from on or about March 1998. 8. Kathleen May Evans has sworn an affidavit on 20 August 2004. Ms Evans has deposed that she is a Secretary of the Newcastle and Northern Branch of the Australasian Meat Industry Employees Union an organisation of employees registered under the Workplace Relations Act 1996 (Cth) ("WRA"). 9. The organisation registered under the WRA based on inquiries I caused to be carried out is The Australasian Meat Industry Employees Union commonly known as the AMIEU. The Newcastle and Northern Branch is a branch of the AMIEU with a defined geographic area that would include within it the South Grafton Abattoir. I refer to the Newcastle and Northern Branch of the AMIEU within this affidavit as "the Branch". 10. The Branch also appears to be registered as an industrial organisation under the Industrial Relations Act 1996 (NSW). I refer to this industrial organisation within this affidavit as "the State Union". Ms Evans is now and was at all material times the secretary of the State Union. 11. I consider that documents may be in the possession of the AMIEU or the Branch or the State Union relating to the industrial relations at the South Grafton Abattoir in the period from the acquisition of the land and assets of the South Grafton Abattoir by the Ramsey Group of Companies of which the Respondents are part from on or about March 1998. 12. I also consider that various servants or officers or agents of the AMIEU or the Branch or the State Union may be in possession of documents relating to the industrial relations at the South Grafton Abattoir in the period from the acquisition of the land and assets of the South Grafton Abattoir by the Ramsey Group of Companies of which the Respondents are part from on or about March 1998. 13. In addition to Ms Evans, each of the person identified in paragraph 6 above have filed affidavits deposing to an involvement, often extensive, such as in the case of Mr Justin Davis, in industrial relations at the South Grafton Abattoir commencing from early 1998. Further, a number of the deponents including employees of one or other of the Respondents have participated in industrial activities at the South Grafton Abattoir, including participation in negotiations and industrial action. In the case of Mr Delaforce, Mr Moss and Mr Paul McKenzie each depose to having distributed circulars of the AMIEU or Branch or State Union at the South Grafton Abattoir and participated in various union and employee meetings. Mr Bennett, an organiser, has participated in negotiations prior to the acquisition and re-opening of the South Grafton Abattoir in March 1998. Mr Davis appears to have taken over from Mr Bennett as a representative of the AMIEU or Branch or State Union. Mr Brown from a reading of his affidavit has specific knowledge of events in August/September 2002 related to the stock shortage, the standing down of employees and the actions taken by the AMIEU or the Branch or the State Union and their respective agents or officials and members including picketing outside the premises of the South Grafton Abattoir in September 2002 and a refusal to attend for work when offered or instructed to attend by the Respondents in September 2002. 14. I do not know the precise nature of the documents that may be in the possession of the organisations and person identified by me but consider documents falling within the following classes or categories would be likely to be held …" 40 Paragraph 14 of Mr Hannigan's affidavit then sets out the 10 classes or categories of documents and a description of additional documents, described at paragraph 1 of these Reasons in respect of the Group 1; Organisations and Group 1; Individuals. 41 Mr Hannigan further deposes: "15. I seek that each of the AMIEU or the Branch or the State Union produce all such documents in the class or category of documents as identified by me in paragraph 14 above by way of third party discovery. 16. In the alternative I ask that leave be granted to address subpoenae to each named organization and person identified by me requiring production of documents falling within the identified categories or classes of documents in paragraph 14 above. 17. Specifically, I ask in respect of Alick James Delaforce that he discover or produce in answer to subpoena addressed to him the tape referred to in paragraph 16 of his affidavit sworn 24 August 2004 from which the transcription that is AJD-3 to his affidavit was made. 18. A number of other persons apart from Messrs Delaforce, Moss and McKenzie who are former employees of the Respondents have sworn affidavits to be relied upon by the Applicant in the proceedings. I identify these persons to be: Stephen Bruce Blackadder Terrence Anthony Brooks Rodger Charles Campbell Gregory Simon Forrest Colin James Hambly Michael Robert McKenzie Paul Gerard Swain John Kevin Young Susan Jane Young 19. I consider that these persons based on the matters deposed by them within the affidavits filed by the Applicant may have in their possession documents relating to their attendance at various meetings held at the South Grafton Abattoir and known commonly as 'consultative committee meetings' in the period 1 March 1998 to 30 September 2002 together with their attendance at other meetings of employees held in the same period identified relating to the work and the terms and conditions, including proposed terms and conditions, for the performance of such work at the South Grafton Abattoir. 20. I seek an order that the persons named in paragraph 18 above be required to give third party discovery in respect of all documents in their possession concerning the issues identified by me in the paragraph 19 above. In the alternative, I ask that leave be granted to serve subpoenae to all of the named persons requiring production of all documents falling within the categories and classes of documents identified by me. 21. I refer to the affidavit of Justin Davis and Colin James Hambly filed by the Applicant in the proceedings. These affidavits refer extensively to issues concerning occupational health and safety matters and the involvement of the WorkCover Authority of New South Wales and a number of the Authority's inspectors including Inspectors Steve Campbell and Paul Kenneth Wales relating to the operations of the South Grafton Abattoir, commencing March 1998. 22. I seek an order for third party discovery by the WorkCover Authority of New South Wales of all documents in its possession relating to the operations at the South Grafton Abattoir by the Ramsey Group of Companies including the Respondents as employers in the period 1 March 1998 to date. 23. I consider that the Authority has in its possession documents falling at least within the following identified categories and classes: (i) All documents received by WorkCover from any servant or officer or agent of the Australasian Meat Industry Employees Union, including from the Newcastle and Northern Branch in the period 1 March 1998 to date relating to the premises known generally as the South Grafton Abattoir. (ii) All documents made by any servant officer, employee or agent of WorkCover relating to the premises known generally as the South Grafton Abattoir in the period 1 March 1998 to date. Without limiting this production it shall include any note made by Inspector Steve Campbell and Inspector Paul Kenneth Wade concerning the premises known as the South Grafton Abattoir. 24. In the alternative I ask that leave be granted to issue a subpoena addressed to the WorkCover Authority of NSW and to both Inspectors Campbell and Wade seeking production of the documents identified by me in paragraph 24 above. 25. I consider that the Office of the Employment Advocate (OEA) and a number of its servants or officers or agents including Caroline Sternberg, Lisa Miller, Alan Rowe, Illona Just and Jim Shearan are in possession of documents falling within the following categories and classes: (see Group 4 documents (i) and (ii) (paragraph [1]); 26. I seek an order for third party discovery of all documents falling within the categories or classes of documents identified by me in paragraph 25 above. In the alternative I ask that leave be granted to issue a subpoena addressed to the OEA and the person named by me requiring production of all documents in its and their possession falling within the categories and classes of documents identified by me in paragraph 25 above by me. 27. I seek leave to issue a subpoena addressed to the General Manager of the Northern Co-operative Meat Company Ltd of 10615 Summerland Way Casino NSW 2470 requiring production of the following classes and categories of documents. The Abattoir operated by the said company is an abattoir located in the same geographic region to the South Grafton Abattoir and such documents may be relevant to the Respondents' defence particularly as to stock shortage and the operational impact of US Beef Quota. I identify these documents to comprise the following classes and categories: …". 42 The respondent applicants say that the case is an unusual one that warrants broad non-party discovery orders because they are being prosecuted by a stranger on behalf of 12 former employees who have a close connection with the case, a direct interest in it and no obligation to discover documents relevant to the issues. They also say in respect of all non-party respondents to the motion that this is a class of case of the kind contemplated by Burchett J in Richardson Pacific Ltd v. Fielding (1990) 26 FCR 188 as one where anything less than the broad obligations imposed by an order for discovery would simply not meet the case; see also the need for recourse to a broad obligation imposed by an order for discovery discussed by Nicholson J in McLernon Group Insurances Pty Ltd v. Biron Corporation Limited & Anor [1995] FCA 500. 43 The respondent applicants say that the Employment Advocate has elected to file extensive affidavits that depose to facts concerning discussions between Stuart Ramsey and officials of either the Federal, State or Branch union bodies leading up to the acquisition of the South Grafton Abattoir in March 1998 and facts going to the relationship between Stuart Ramsey and nominated officials of the union bodies and employees of the respondents since acquisition that demonstrate the general history of the industrial relations climate between the respondent applicants and the workforce at the abattoir. These events are said to be relevant to both the termination conduct and the refusal to re-employ pleaded against the respondent applicants. They say that since the Employment Advocate has made facts going to the history of events from March 1998 relevant to issues raised on the pleadings, documents in the possession, power or custody of the addressees to the motion should be produced. 44 As to the Federal, State and Branch unions, the respondent applicants say the first three classes of documents especially go to the industrial relations history. I am referred in particular to the affidavits of Kathleen Evans, Justin Davis, Alick Delaforce, Trevor Moss and Paul McKenzie but fundamentally in the submissions I have been taken to the affidavit of Kathleen Evans. Reliance is also placed upon the affidavit of Francis Gregory Hannigan. Mr Hannigan says that he considers the documents may be in the possession of the AMIEU or the Branch or State Union relating to the industrial relations at the South Grafton Abattoir in the period from the acquisition of the land and assets of the abattoir by the respondent applicants from March 1998. Paragraph 13 of the Mr Hannigan's affidavit attempts to identify documents that might exist based on the affidavits of Evans, Davis, Delaforce, Moss and McKenzie. However, no detailed forensic attempt has been made to truly identify particular documents or classes of documents based on those affidavits. What is sought in the description of the classes and categories of documents is all documents relating to the relevant topic from March 1998 to the present. The affidavit of Kathleen May Evans sworn 20 August 2004 deposes to a meeting on 5 March 1998 with Stuart Ramsey, a particularly unpleasant conversation between Ramsey and Evans on 18 March 1998, other telephone conversations, negotiations concerning an enterprise agreement and certain correspondence two letters of which are annexed to her affidavit. Ramsey's affidavit sworn 17 November 2004 is responsive to those allegations and sets out matters in some detail. I have been referred to the whole of the Evan's affidavit and paragraphs 6 to 23 and paragraph 54 of Ramsey's affidavit although I have read the entire affidavit. Those paragraphs responsively deal with the negotiations with the Unions up to the date of acquisition of the abattoir, the alleged change in position by Kathleen Evans and the Union, the arrangements in relation to the Australian workplace agreements and other matters. 45 The Amended Statement of Claim does not plead these matters as material facts and would not do so if the matters are evidence going to the proof of pleaded material facts. The Statement of Claim pleads the establishment in 2001 of the First Consultative Committee, the replacement of that committee with the Second Consultative Committee in March or April 2002, the dissolution of that committee in May 2002 and the establishment of the Third Consultative Committee in August 2002. The pleading also asserts material facts in relation to proceedings taken by particular employees in early 1999. Presumably, it will be said at the trial that the nature of the exchanges between Stuart Ramsey and representatives of the Union bodies and the relevant employees more broadly deposed to in the various affidavits reflect a systemic attitude of mind towards the individuals and their association with the Union that influenced Stuart Ramsey in his decision to close the abattoir and terminate the employment of the 12 individuals. This systemic attitude of mind is presumably said to endure into the conduct in refusing to re-employ the 12 individuals as the abattoir recommenced operations not long after closure. If so, this is not immediately clear from the pleading. 46 In relation to categories (i) and (ii) of the Group 1 classes of documents, it seems to me that since the Employment Advocate has elected to file affidavits deposing to strident and unpleasant conversations between Stuart Ramsey and particular deponents and the negotiations and events which took place in March 1998, it must necessarily say that those matters are relevant to the matters in issue and the documents evidencing those matters should be brought to the forum in the context of the matters in controversy. Why is the Employment Advocate filing affidavits that depose to facts and conduct in March 1998 and subsequently if those facts are not said to be probative of matters in issue? I am satisfied from reading the affidavits that there are organisational and structural arrangements for the keeping of records within the Union bodies and, accordingly, documents are likely to be in the possession of representatives of the Union bodies dealing with the negotiations with the Ramsey companies both in relation to the events in early 1998 and concerning negotiations with the respondent applicants up to and including August or September 2002. If it is suggested that these matters ultimately reflected an attitude of mind towards the Union bodies and more specifically the 12 individuals due to their association with the Union bodies, as evidence of a prohibited reason for the conduct, the documents will have an apparent relevance and may provide some forensic utility. The question really is one of formulating precisely the focus of the order so that material which is apparently relevant is available to the tribunal of fact in a way which does not prejudice the trial and particularly the commencement of the trial on 10 October. 47 Having regard to the extensive case management of the principal proceeding which is reflected in detail at paragraph [38] and the substantial delay in addressing these matters on the part of the respondent applicants, I am not prepared to make broad non-party discovery orders against the three Union bodies or the Group 1 Individuals. I am conscious of the submissions made by the respondents to the motion concerning the broad description of the documents (particularly those described at (iii) of the Group 1 documents), the broad time frame from March 1998 to the present, the notion that the description of the documents is sufficiently broad that it would catch relevant and irrelevant documents (as formulated) and that the application is made in circumstances where the affidavits apart from that of Mr Hannigan relied upon in support of the application were all available to the applicant respondents in respect of the Group 1 individuals by August 2004. Clearly enough, this application could have been made some considerable time ago. I am also conscious of the submission that making orders for the production of particular material might have the effect of delaying the trial. Counsel for the principal applicant in the proceedings said in response to the motion that he could hear the application for an adjournment now. I am, however, prepared to give leave to issue subpoenas requiring the production of documents and records in the possession, custody and power of the Union bodies relating to discussions and negotiations between the Union bodies and the respondent applicants concerning the re-opening of the South Grafton Abattoir in 1998 and documents relating to the conditions of employment to apply upon the re-opening. I am prepared to grant leave to issue a subpoena for the production of files held by the Union bodies in the period March 1998 to August or September 2002 concerning records of meetings between representatives of the Union bodies and the respondent applicants and correspondence, emails and other documents which might evidence exchanges between the Union bodies and the respondent applicants. In making these orders, I am conscious of striking a balance between ensuring that material that is reasonably likely to add, in the end, in some way or other to the relevant evidence in the case is available and preventing an abuse of the processes of the Court and particularly the case management processes. I am also conscious that although the proceedings are civil proceedings, the relief sought includes the imposition of pecuniary penalties. 48 I do not regard the Union bodies or the 12 individuals as strangers to the proceeding and it seems to me that material touching the matters I have described should be readily identifiable consistent with the orthodoxy of record keeping within the Union bodies. 49 The classes of documents described at (iv) and (ix) of Group 1 deal with documents held by the Union in relation to the US Beef Quota arrangements and all documents relating to advice given by the respondent applicants to the Union bodies concerning stock shortages at the abattoir in the period 1 March 1998 to date. 50 This question of the US Beef Quota arrangements also provides the foundation for the request that orders for non-party discovery or alternatively leave to issue subpoenas be made directed to a competitor of the respondent applicants, namely, Northern Co-operative Meat Company Ltd. The affidavit of Stuart Ramsey says that stock shortages were the reason for the closure of the abattoir and that processing at the abattoir became economically unsustainable due to the loss of US Quota. It seems to me that the question of the Quota arrangements, the change in the policy, the instruments that effected those changes, the economic burden of the changes and the role these matters played in the decision-making by Stuart Ramsey are particularly matters reflected in documents and other evidence within the control of the respondent applicants. I am not persuaded that any analytical work undertaken by the Union bodies in relation to export arrangements for access to the United States market of processed beef either generally or as a matter of policy, changes in Quota arrangements or potential changes of government policy are relevant to the question of whether, at the material time, the circumstances confronting the respondent applicants in the operation of the South Grafton Abattoir provided the reason or one of the reasons for the closure, termination and subsequent election not to re-employ the 12 individuals. Since the burden of the change in June 2002 is said to have expressed itself in the decisions made later that month and in September, I fail to see what the relevance of material advising of stock shortages from 1 March 1998 to June 2002 or to date could be. 51 Moreover, in relation to the application concerning the competitor of the applicant respondents, I regard all of that inquiry as an entirely collateral analysis not relevant to the facts in issue in the present proceeding. It may very well be that Northern Co-operative Meat Company Ltd did agitate for a hardship Quota which enabled it to produce meat products of particular tonnages which guaranteed continuing slaughtering activities and continuing plant utilisation in the competitor in or about August or September 2002. However, the notion that the competitor received a hardship quota and kept its abattoir operating without closure, terminations and limited re-employment cannot be probative of the matters in issue between the Employment Advocate and the respondent applicants. The particular structural circumstances within the competitor would need to be known in great detail including such things as economies of scale, efficiency gains, plant utilisation rates, fixed and variable costs of production, the nature of avoidable costs, the elements of the relationship between the employer and the workforce, the nature of the products produced by the abattoir and many other factors along the continuum. Isolating facts surrounding the issue of the US Beef Quota arrangements applicable to the competitor does not evidence anything concerning the importance of the Beef Quota arrangements to the respondent applicants or the consequences for the respondent applicants of failing to achieve a hardship allocation under the new arrangements in terms of whether the closure, terminations and subsequent limited re-employment was the expression of a prohibited purpose under the Act, or otherwise. 52 Accordingly, I propose to make no orders in relation to the classes of documents described at (iv) and (ix) of Group 1. 53 As to the Group 1(v) documents, counsel for the Union bodies has made submissions that full details of the Union membership relating to the 12 individuals will be provided to the respondent applicants and in the face of that undertaking it seems to me that there is no basis for any orders in relation to the Group 1(v) documents. 54 In relation to the Group 1(vi) documents, they are not pressed by the respondent applicants. 55 In relation to the Group 1(vii) documents, the respondent applicants seek production of all documents relating to communications between the Union bodies and the office of the Employment Advocate in the period 1 March 1998 to date concerning the employment or refusal to employ any person by any corporation at the South Grafton Abattoir. It seems to me that communications passing between the Union bodies and the Employment Advocate, especially over such a broad period, are not relevant to the matters in issue on the pleadings. It may be, in the light of the matters of stridency between Stuart Ramsey and the deponents, the background of the negotiations for the enterprise agreement and the pattern of engagement between the respondent applicants and the three consultative committees, that the Union bodies put propositions and submissions to the Employment Advocate. Unless it is suggested that these communications or the fact that these communications were advised to or within the knowledge of the respondent applicants, it is difficult to see how the communications influenced the mind of Stuart Ramsey when the relevant conduct occurred. Accordingly, I do not propose to make any orders in respect of the Group 1(vii) documents. These documents apart from the broad description of the material seem to me to have no apparent relevance. 56 In relation to the Group 1(viii) documents, affidavits depose to steps taken to engage with the WorkCover Authority of New South Wales to facilitate inspections of the abattoir. It might be said that complaints or reports made to the WorkCover Authority of New South Wales irritated Stuart Ramsey and the respondent applicants in such a way that provoking the intervention of the WorkCover Authority, pre-disposed Stuart Ramsey to an attitude of mind about individuals associated with that conduct and the related Union body such that it influenced Stuart Ramsey's mind in the subsequent conduct that occurred about which objection is taken. The Employment Advocate has filed affidavits deposing to these matters. However, I fail to see how documents passing between the Union bodies and the WorkCover Authority of New South Wales and internal documents within the WorkCover Authority arising out of inspections concerning the operation of the South Grafton Abattoir are relevant to the matters in issue. The detail of the inspections, the question of whether there were breaches of the relevant regulatory legislation, the merits of the complaints seem to me, on the pleadings, unrelated to the matters in issue. The fact of a complaint might have been material in influencing Ramsey's view about any one or more individuals who provoked the intervention of the WorkCover Authority. It is difficult, however, to see how communications between the Union bodies and the WorkCover Authority of New South Wales which were not known to Stuart Ramsey are relevant to the reasons for the ultimate conduct in issue or a prohibited reason within the field of reasons. Accordingly, I propose to make no orders in relation to those documents. 57 As to the Group 1(x) documents, they are not pressed. 58 The Group 1 categories of documents, conclude with a catchall phrase to sweep up such other documents that may have been produced by the organisers, delegates, officials, officers and employees of the Union bodies concerning the operation of the South Grafton Abattoir by the Ramsey Group of Companies including the respondent applicants. It seems to me that all other documents produced by such individuals touching the operation of the South Grafton Abattoir is a very broad class of documents and not focused upon those matters which are the subject of the pleading or directly related to affidavits which raise matters which have an apparent relevance to the matters in issue. I have said that the files maintained by the Union bodies as a matter of administrative orthodoxy in relation to issues between the respondent applicants and aspects of the industrial relations should be produced. I have framed the proposed scope of those documents for the consideration of the applicant respondents and the Union respondents to the motion. 59 In relation to the Group 1 individuals, the affidavit material does not demonstrate, it seems to me, that these individuals have or have had documents in their possession, custody or control other than in their capacity as representatives of the Union bodies where relevant and accordingly I propose to only grant leave to issue a subpoena directed to particular individuals in their capacity as officers of the relevant Union bodies. 60 In relation to the Group 2 individuals, I have been referred to a number of affidavits which identify meetings said to be relevant to the matters in issue (and particularly said to be made relevant by the Employment Advocate since the Employment Advocate has filed the affidavits in which the deponents refer to the meetings). Counsel for the applicant respondents concedes that there are no references in the affidavits of Stephen Blackadder or Paul Swain concerning particular meetings and no application is pressed for orders against those two individuals. The documents sought from the Group 2 individuals are very broad being all documents relating to the attendance of the Group 2 individuals at various meetings held at the South Grafton Abattoir and known commonly as consultative committee meetings in the period 1 March 1998 to 30 September 2002 together with documents relating to the attendance of the Group 2 individuals at other meetings of employees held in the same period relating to the "work and the terms and conditions including proposed terms and conditions for the performance of work at the South Grafton Abattoir". 61 The affidavit of Mr Hannigan simply says that he considers that the Group 2 individuals based on matters deposed to by them in their affidavits have in their possession, documents relating to their attendance at various meetings held at the abattoir in the period mentioned. There is no further description in Mr Hannigan's affidavit of a document or classes or categories of documents based on an analysis of any of the affidavits filed in the proceedings. It seems to me, on the face of the material that the description of the documents is very broad, captures every document whether relevant or irrelevant, specified or unspecified and includes all meetings across the period in question from March 1998 to late 2002. Counsel for the respondent applicants referred me to a number of the affidavits filed by the Employment Advocate in the principal proceeding from the Group 2 individuals. 62 As to Terrence Anthony Brooks, I have been referred to his affidavit sworn on 20 August 2004. At paragraph 8, he deposes to a meeting in February 2001 between Stuart Ramsey and a gathering of employees of the respondent applicants at which he says Stuart Ramsey made strongly disparaging remarks which Brooks understood to be a reference to Blackadder, Hambly, Swain, Union officials and, in that regard, particularly Justin Davis. Brooks deposes to statements of Ramsey to the effect that "we don't need the Union on site" and other remarks which, if found to have been made, are offensive. Brooks further says that Stuart Ramsey would often glare at individuals he knew to be Union members whilst making remarks about employees who were in the Union. An example is given of glares directed to Paul McKenzie in that regard and statements, if found to have occurred, which are offensive. Brooks further deposes to his outspoken behaviour and conduct in the Second Consultative Committee. Presumably, these facts are relied upon as demonstrating an active dislike of the Union bodies and any individual who might elect to participate in the field of affairs of such bodies or even be a member of such a body. Presumably, this evidence is filed and relied upon by the Employment Advocate as relevant and material to the attitude of mind guiding Stuart Ramsey in August and September 2002 and the continuing refusal to employ. 63 When I asked counsel for the respondent applicants whether the documents sought by these orders encompass documents which have not otherwise been provided by the Employment Advocate as part of inter-party discovery pursuant to orders made in the course of directions hearings, I was advised that documents in these categories of attendance notes had not been produced as part of the discovery process in the principal action. Presumably, the Employment Advocate, if he seeks to rely on meetings and events, has tested whether documents relevant to those meetings and events exist and whether they are discoverable in the action since relief is claimed on behalf of the 12 individuals. However, having regard to the description of documents and the affidavit material, it is not clear to me that it is plainly probable that there do exist documents relevant to the issues held by or likely to be held by or once held by the Group 2 individuals as opposed to members of the Group 1 individuals who either do or would have held documents touching these matters in their capacity as office bearers of the Union bodies. 64 As to Colin James Hambly, I have been referred to his affidavit sworn 19 August. Hambly says that he attended a general meeting of workers some time in the first half of 1999 at which a discussion took place where some concerns were raised about a matter which might otherwise have been dealt with by the Occupational Health and Safety Committee established at the abattoir. Hambly says that he became in May 1998 the chairman of the OH&S Committee and that in February 1999 Mr Ramsey made some extravagant and unpleasant remarks about the role of an OH&S Committee and that after those remarks the OH&S Committee never met. The remark at the meeting in the first half of 1999 was directed to Hambly's invitation to address any question about the OH&S Committee to Ramsey. 65 As to Michael Robert McKenzie, he deposes to a meeting of the Second Consultative Committee with Ramsey on 29 April 2002 in the canteen of the abattoir. McKenzie deposes to a strident exchange with Mr Ramsey and a sequence of statements in extreme language. Presumably, these exchanges deposed to by McKenzie are intended to demonstrate that by 29 April 2002 Mr Ramsey had such an embedded hostility towards any question relating to changes to working conditions and the role of particular individuals in agitating those matters that when he came to close the abattoir in August 2002 he was motivated to do so for a prohibited reason. It seems to me that any note or document arising out of the meeting or dealing with the matters deposed to in the affidavit is likely to throw light upon the matters in issue. 66 As to Gregory Simon Forrest, he deposes to a meeting to establish the First Consultative Committee, a meeting of the committee on 15 February 2002, and a meeting convened to set up a Third Consultative Committee. The respondent applicants say that they need to see any documents arising out of these meetings. 67 As to Rodger Charles Campbell, he deposes to being present at a meeting of all workers addressed by Mr Ramsey and remembers Mr Ramsey speaking in strident and unpleasant terms which Campbell assumed was a reference to Swain, Blackadder and Hambly. Campbell deposes to further discussions with Ramsey and a meeting shortly thereafter February 2002 between workers at the abattoir to elect a Second Consultative Committee. 68 As to John Kevin Young, he says he attended a meeting of workers at which information about the meetings of the First Consultative Committee was provided to the individuals present and votes were taken about issues discussed at the First Consultative Committee. The date of that meeting is not identified. He says he was present a meeting of all the workers to establish the Second Consultative Committee although the affidavit does not identify the date of that meeting. He says that he was one of the most outspoken individuals on the Second Consultative Committee together with Brooks, Campbell and Michael McKenzie. He deposes to a meeting with Ramsey on 29 April 2002 about various matters including a proposal to increase wages and matters relating to the tally system. He deposes to a heated exchange between Ramsey, Brooks and Campbell. Presumably, this evidence is designed to demonstrate the progression in the deterioration of the relationship between Ramsey and the deponents and the subject matter affecting that deteriorating relationship with a view to inviting reliance upon the evidence as the basis for finding a prohibited reason in the conduct in August and September 2002 and the continuing refusal to employ the relevant individuals. 69 As to Susan Jane Young, she deposes to her dissatisfaction with her wage level and her often outspoken concerns about working conditions. She deposes to a meeting of boning room staff and the abattoir in late 2001 and speaking to those concerns both in respect of her own circumstances and more generally. 70 Having considered all of these affidavits and the submissions made in relation to them, I am not satisfied that the respondent applicants have demonstrated that any of the Group 2 individuals has documents which relate to any question in the proceeding. The identification of the documents is not at all clear and the probability that these individuals might have or be likely to have or have had documents arising out of the particular meetings reflected in the affidavits, is not established. It seems to me that the burden of demonstrating the existence of classes of documents with some degree of focus which might throw light upon the issues in the principal proceeding has not been discharged. It seems to me that granting leave to issue subpoenas to the Union bodies is likely to produce documents arising out of meetings and exchanges between the Union bodies as representative of the employees and the respondent applicants. I am also conscious of the importance of ensuring that the trial is not delayed. I am not satisfied that documents relating to a question in the proceeding have been identified or demonstrated to appear to be connected to the Group 2 individuals in the sense contemplated by Order 15A, Rule 8. No apparent relevance has been demonstrated. 71 In relation to the documents sought from the WorkCover Authority of New South Wales and inspectors employed by WorkCover, I am not satisfied that there are any documents which are apparently relevant to the issues raised on the pleadings. Requiring the WorkCover Authority of New South Wales to produce documents arising out of an election to inspect plant and equipment at the abattoir is not likely to reveal documents which would be probative of a matter in issue. It seems to me that issuing a subpoena would be oppressive. 72 In relation to the Employment Advocate and the Group 4 individuals [see paragraph 1], it is common ground that it is not open to seek orders under Order 15A, Rule 8 against the Employment Advocate. Accordingly, counsel for the respondent applicants sought production of documents pursuant to Order 15, Rule 8. The documents sought are all documents received by the Employment Advocate from any person acting on behalf of any employee or former employee who performed work at the South Grafton Abattoir from 1 March 1998 to date and all documents made by any servant, officer, employee or agent of the Employment Advocate relating to the operations of the South Grafton Abattoir from 1 March 1998 to date. The category of documents is then further described in even broader terms. It seems to me that, in essence, the respondent applicants are parties dissatisfied with the completeness of discovery by the Employment Advocate and now seek particular discovery under Order 15, Rule 8. That application requires some attempt to identify a document or class of document which relates to a matter in question in the proceeding. It is not clear to me that the respondent applicants have adduced evidence or demonstrated from the nature or circumstances of the case or documents filed in the proceedings that an order pursuant to Order 15, Rule 8 ought to be made. There needs to be some precision and definition in the identification of the document or class of document and even though recourse to the rule is not limited to a case of defective compliance with an earlier order, the application on this ground seems to me to go behind the existing orders for discovery and seek not particular discovery but further broad or general discovery. The principal proceeding has been extensively case managed and discovery has taken place in accordance with the orders inter-parties. There is no present challenge to the adequacy of the existing discovery on the part of the Employment Advocate and the application pursuant to Order 15, Rule 8 really only arises because of the realisation that an application under Order 15A, Rule 8 for broad non-party discovery was not available against the Employment Advocate. 73 It seems to me that not only are the grounds for an Order not made out but the Order is genuinely oppressive, expansively seeks unidentified documents and is therefore fishing, and is made in circumstances where the application is too late in the day having regard to the extensive directions orders made to ensure that the matter could properly come on for trial for three weeks of Court sitting time in a properly developed manner in October. 74 Accordingly, I do not propose to make any orders in relation to the Employment Advocate or the Group 4 individuals. 75 I am not satisfied that there is a proper basis for an order for non-party discovery or leave to issue subpoenas to Northern Co-Operative Meat Company for all the reasons indicated previously [paragraphs [50] and [51]. 76 In relation to paragraph 3 of the notice of motion, counsel for the Employment Advocate gave an undertaking that the original tape referred to by James Delaforce in paragraph 16 of his affidavit sworn 24 August 2004 would be produced and accordingly, in reliance upon that commitment, I do not propose to make any of the orders sought by paragraph 3. 77 By paragraph 5 of the notice of motion, leave is sought to issue a subpoena addressed to John Graham Broadway requiring production by him of the documents identified at paragraphs 10.2 and 10.3 of his report exhibited to his affidavit sworn 9 March 2004. Those documents are precisely identified and it seems to me that they are directly related to an analysis of factors influencing the availability of stock expressly for the purpose of testing whether, on the balance of probabilities, there was a stock shortage at the material time. I am prepared to grant leave for the issue of a subpoena to John Graham Broadway for the production of that material. 78 I want to make one further general observation about the matter. In the ordinary course of events in dealing with interlocutory applications, I would not anticipate writing extensive reasons dealing with a decision on applications such as these. However, having regard to the extensive case history of the matter, the reliance upon the affidavits filed in the principal proceeding, the impending trial in six weeks and my assumption of the conduct of the matter due to the absence of the Docket Judge for the matter, I have elected to address the material and the issues more fully. 79 Accordingly, in principle, I grant leave to issue a separate subpoena addressed to each of the Secretary (or appropriately designated office holder by name and title) of The Australasian Meat Industry Employees' Union (otherwise described as the Federal Union), the Newcastle and Northern Branch of the Australasian Meat Industry Employees' Union (otherwise described as the State Branch of the Federal Union) and the Newcastle and Northern Branch of the Australasian Meat Industry Employees' Union (otherwise described as the State Union), to produce to the Court: (a) all documents including minutes of meetings, notes of meetings or notes of discussions between representatives of the (relevant) Union and representatives of any of the respondents in relation to the re-opening of the South Grafton Abattoir in March 1998; (b) all documents including minutes of meetings, notes of meetings or notes of discussions between representatives of the (relevant) Union and representatives of any of the respondents in relation to conditions of employment to apply at the South Grafton Abattoir upon the re-opening of the abattoir in March 1998; (c) all documents including minutes or notes of meetings (including resolutions) and notes of discussions concerning the representation by the (relevant) Union, of employees of any one of the respondents in the principal proceeding (the respondents) at the South Grafton Abattoir relating to negotiations by or on behalf of the first, second or third consultative committees of employees and any one of the respondents in the period March 1998 to 30 September 2002, but not including the following documents: (i) any documents relating to the termination of employment of Stephen Blackadder on or about 5 October 1999 or proceedings before the Australian Industrial Relations Commission commenced by Stephen Blackadder on or about 29 March 2000 seeking reinstatement and other orders; (v) any documents relating to the termination of employment of Colin James Hambly on or about 1 July 1999 or proceedings before the Australian Industrial Relations Commission taken by Hambly seeking reinstatement and other relief; (vi) documents relating to proceedings commenced by Jason Robertson seeking reinstatement before the Australian Industrial Relations Commission and other relief and documents relating to the role of Paul Francis McKenzie in those proceedings; (vii) documents relating to the termination of employment of Paul Gerard Swain on or about 15 April 1999 or proceedings commenced by Swain seeking reinstatement and other relief before the Australian Industrial Relations Commission. by 10.00am on Wednesday, 28 September 2005. The matter will be listed for directions at 10.00am on 28 September to provide for the return of the subpoenas and to enable objections to be heard. 80 I have excluded documents (i) to (iv) of Category C because documents going to the merits and the detail of the actual controversy reflected in the various proceedings are not relevant since the allegation is that the termination of employment in August or September 2002 and the failure to re-employ, involved a reason relating to Blackadder, Hambly and Swain taking proceedings and Paul McKenzie participating in Robertson's proceedings. The actual content of those proceedings seems ultimately not to the point. 81 I propose to dismiss the motion so far as Orders are sought addressed to the Group 2 individuals unless one or more of those individuals is currently an office holder of the Union (for example, Kathleen Evans), the WorkCover Authority of New South Wales, Stephen Campbell and Paul Kenneth Wade, the applicant in the principal proceeding, Peter Leslie McIlwain, Caroline Sternberg, Lisa Miller, Alan Bowe, Ilona Just and Jim Shearan and Northern Co-Operative Meat Company Ltd. 82 I note the undertaking given by counsel for The Employment Advocate to provide the respondent applicants respondent applicants with a copy of the original tape referred to by Alick James Delaforce in paragraph 16 of his affidavit sworn 24 August 2004 and marked Exhibit "AJD3" and make no order pursuant to paragraph 3 of the notice of motion. 83 I note the undertaking given by counsel for the Union bodies to identify the recorded membership details for the 12 individuals the subject of the pleading in reliance upon which I have made no order in relation to the Group 1 category (v) documents. 84 I grant leave to issue a subpoena directed to John Graham Broadway for the production by him of the documents identified in paragraphs 10.2 and 10.3 of his report dated 12 August 2003 which is to be returnable at 10.00am on Wednesday, 28 September 2005. 85 Draft subpoenas should be prepared by the respondent applicants and submitted to me for consideration. 86 I propose to reserve all questions of costs in relation to the application for further argument but recognise that in principle the three Union bodies and John Graham Broadway are entitled to an Order that the respondent applicants pay the amount of any reasonable costs and expenses incurred in complying with each subpoena and the legal costs would ordinarily be on a solicitor and own client basis. An order would need to be made for the purposes of Order 27, Rule 11(2). I propose to deal with the costs question at the next directions hearing on Wednesday, 28 September 2005. 87 I also take this opportunity to publish with these reasons general guidelines I have formulated for the conduct of trials and pre-trial steps before me.

I certify that the preceding 87 eight-seven numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate: Dated: 2 September 2005

Counsel for the Applicant: Mr G Martin SC with Mr S Horneman-Wren

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the Respondent:: Mr A C Barlow

Solicitor for the Respondent: Hannigans Lawyers

Counsel for the Australian Meat Industry Employees' Union, the Newcastle and Northern Branch of the Australasian Meat Industry Employees' Union and Kathleen Evans and Paul Brown: Mr C Buckley

Solicitor for the Northern Co-Operative Meat Company: Shand Taylor Lawyers

Date of Hearing: 16 August 2005

Date of Judgment: 2 September 2005