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.