[2011] FWA 8756 |
|
DECISION |
Fair Work Act 2009
s.590(2)(c) Application requiring a person to provide copies of documents or records, or to provide any other information to Fair Work Australia
Australian Nursing Federation
v
Victorian Hospitals' Industrial Association
(B2011/4041)
COMMISSIONER JONES |
MELBOURNE, 23 DECEMBER 2011 |
Application for Order requiring production of documents - application to refuse order.
[1] This is an application by the Australia Nursing Federation (ANF) under s.590(2)(c) of the Fair Work Act (the Act) for three Orders for the provision of documents, records or other information (the Application).
[2] Each of the three Orders are in substantially the same terms, in respect of the documents sought to be provided. The Orders are sought against, respectively, the Victorian Hospitals’ Industrial Association (VHIA), the Department of Health, Victoria and the Department of Treasury and Finance, Victoria (Orders to Produce).
[3] A hearing was convened on 12 December 2011, to consider the objections from the VHIA and the State of Victoria, representing the Department of Health and the Department of Treasury and Finance, to the issue of the Orders to Produce.
[4] At the conclusion of the hearing, I made an ex tempore decision declining to issue the Orders to Produce. The following sets out the written reasons for this decision.
[5] The Application is made in the context of substantive proceedings in respect of an application by the ANF under s.229 of the Act for a bargaining order directed to the VHIA (Bargaining Order Application).
[6] Section 590(2)(c) of the Act provides:
590 Powers of FWA to inform itself
........
(2) [Ways FWA may inform itself] Without limiting subsection (1), FWA may inform itself in the following ways:
........
(c) by requiring a person to provide copies of documents or records, or to provide any other information to FWA.
Relevant Principles
[7] The power to require the provision of copies of documents, records or other information has, under earlier legislative schemes, been expressed as a power to summons and compel the production of documents.
[8] Section 111(1)(s) of the Workplace Relations Act 1996, as it stood prior to 26 March 2006. provided the Commission with the power to:
“(s) summon before it the parties to the industrial dispute, the witnesses, and any other persons whose presence the Commission considers would help in the hearing or determination of the industrial dispute, and compel the production before it of documents and other things for the purpose of reference to such entries or matters only as relate to the industrial dispute;”
[9] I am satisfied that the jurisprudence in relation to the power of predecessors of Fair Work Australia to issue summons is applicable to the power under s.590(2)(c) of the Act.
[10] The power to require the provision of documents, records or other things is a broad discretionary power to be exercised in accordance with the principles applied by the Courts.
[11] In The Queen v Marks; Ex parte Australian Building Construction Employees and Builders Labourers’ Federation,1 Justice Mason, as he then was, discussed the use of the discretion to issue a summons and said:
“When application is made for the issue of a summons the Commission has discretion to grant or refuse it. Generally speaking, the Commission will exercise its discretion in favour of the applicant unless it appears that it would be vexatious or frivolous or otherwise an abuse of process to issue the summons.”
[12] The principles applied by the Courts in the exercise of the discretionary power to issue a summons were identified by: Munro J in Re Clerks' (Alcoa of Australia - Mining and Refining) Consolidated Award 1985:2
“In its exercise of a broad discretion and judgement over use of the power, the Commission will have regard to practice followed in courts of law where a judicial discretion has been applied to regulate use of a subpoena to produce document. Any such subpoena must specify with reasonable particularity documents which are required to be produced. It may be sufficiently specific to identify documents to be produced by reference to the subject matter to which they relate. In the case of a corporation, it is usually appropriate, where the custodianship of documents is not clear, to direct the subpoena to the `Proper Officer'. It is not legitimate to use a subpoena for what, in effect, would be discovery of documents against a person not liable to make discovery, or as a substitute for discovery which should be applied for at the proper time. The documents sought must be of a nature capable of being relevant to an issue which might legitimately arise on the hearing of the matters in dispute. In the first instance the documents are produced to the tribunal upon whom it falls to examine the documents, assess their relevance and determine what access by the parties to the documents may be appropriate; (section 187 of the Act appears to be the statutory counterpart of this principle of practice). A party will not be required to produce documents where to do so would be oppressive; or where the demand for production is a `fishing expedition', in the sense that it is an endeavour not to obtain evidence to support a case, but to discover whether there is a case at all. Where the proper use of legal compulsion to produce documents is in issue, the tribunal will need to carryout an exercise of judgement upon the particular facts in each case. That judgement requires a balance on the one hand of the reasonableness of the burden imposed upon the recipient, and of the invasion of private rights, with on the other hand, the public interest in the due administration of justice and in ensuring that all material relevant to the issues be available to the parties to enable them to advance their respective cases.”
[13] An exposition of the principles with particular focus on issues of confidentiality is contained in the decision of His Honour Vice President Lawler in Association of Professional Engineers, Scientists and Managers and Airly Coal Pty 3. In McIlwain v Ramsey Food Packaging Pty Ltd and others4, Justice Greenwood summarised the principles which govern the courts in relation to discovery and subpoena to produce documents. I have had regard to this summary, so far as it concerns subpoena to produce documents in considering this Application. Removing those aspects of the summary dealing with discovery, the relevant principles identified by Greenwood J relevant to these proceedings are:
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).
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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] HCA 21; (1989) 166 CLR 486, 502, Oceanic SunLine Special Shipping Co. Inc. v. Fay [1988] HCA 32; (1988) 165 CLR 197, Seven Network Limited v News Limited (No 5) [2005] FCA 510; [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] HCA 21; (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."
Substantive Proceedings
[14] The determination of whether Orders to Produce should be made under s.590(2)(c) of the Act in the terms sought by the ANF requires an application of relevant legal principles in the context of issues which may arise in the substantial proceedings. This is, by necessity, informed from the particulars of Bargain Order Application. Reference is made to the Amended Application filed by the ANF on 10 December 2011.
[15] In brief, the ANF seeks a bargaining order on the grounds that the VHIA has not met all of the good faith requirements under s.228(1) of the Act.
[16] Having regard to the Amended Application and the Submission, the gist of its claim that the VHIA has failed to meet the good faith bargaining requirements in subsections 228(1)(a),(c),(d), (e) and (f) is its allegation that the VHIA has no independent or genuine capacity to bargain because it is bound by third party decisions and instructions. These third parties are identified of emanations of the Victorian Government being the Department of Health, a Leadership Group, Chaired by the Department of Health with Deputy Secretary representatives from the Department of Premier and Cabinet and the Department of Treasury and Finance, and the Department of Health Steering Committee.
[17] On the face of the Bargaining Order Application and outline of submissions, the allegations that the VHIA has not met s.228(1)(b) derives from the responses of the VHIA to requests for information from the ANF dated 22 August 2011, 29 November 2011, 1 December 2011 and to a request for particulars of notice served by the ANF on VHIA on 17 November 2011.
Consideration
[18] As noted above earlier, the documents/ information sought are substantially the same in the three Orders to Produce. Consequently, consideration of the proposed orders, against relevant principles will proceed by treating the Orders to Produce as a whole with particular reference to an Order as required.
Paragraphs 1 to 7
[19] The ANF submits that Paragraphs 1 - 7 of the Schedule to the proposed orders relates to the management and governance and control exercised by various parts of the Government.
[20] Paragraphs 1 - 4 in the Schedule to each of the Orders to Produce are directed to “notes, memoranda, documents...comprising or recording communications from State Ministers for Finance, Health, Employment and Industrial Relations and Treasurer (and any staff members) to the VHIA and from the VHIA to those State Ministers, Treasurer (and any staff members):
“relating to the management of the negotiations for a new nurses agreement for the Public Health Sector.”
[21] The ANF submit that Paragraphs 1 - 4 are relevant to the issues in the substantive proceedings which will arise in relation to its claims regarding s.228(1)(a),(c),(d),(e) and (f) of the Act.
[22] The VHIA submits that three categories of documents sought to be produced are not relevant to the issues to be considered in the substantive proceedings and that the terms of the proposed Orders are couched in such wide terms that to require the VHIA to comply with the Orders would require the respondent (and others in respect of who equivalent orders are sought) to undertake a massive search-and-collate exercise. It would be necessary, the VHIA submits, to trawl through “thousands (if not tens of thousands) of emails dating back to (and possible prior to) the commencement of negotiations, and to make fine judgements about whether or not individual communications answer the loose descriptions proposed”. This, they submit, would be oppressive and impose on unfair burden on the VHIA.
[23] The VHIA provided a summary, in tabular form, in respect of documents in its possession and control, of the process entailed in complying with the Order.
[24] Similarly, the State of Victoria submit that the proposed Orders are oppressive as a consequence of the burden on the State from the volume of documents the State will be required to inspect to comply with the Orders and the “breadth and lack of precision” requiring the State “to undertake fine judgements as to the meaning of the proposed Orders to determine if a document will or will not be described by the proposed Orders”.
[25] In support of its submission the State of Victoria filed two affidavits. One declared by Mr Michael Howard, Manager Corporate Integrity, Information and Resolutions Unit, Department of Human Services. The other affidavit is declared by Ms Laurinda Gardner, Deputy Secretary (Corporate Strategy and Services, Department of Treasury and Finance. These affidavits set out the opinions of the declarants regarding the resources and time involved in complying with the Orders directed to the Department of Health and Department of Treasury and Finance.
[26] The ANF submits that in considering paragraphs in the Schedule which include the phrase “relating to”, I “should adopt the approach of Kaye J in McColl v Lehmann [1987] VR at 503, adopting the opinion of Smithers J expressed in Lucas Industries v Hewitt (1978) 18 ALR 555, namely that:
“In my opinion it reflects a realistic approach to a situation presented when the addressee of a subpoena duces tecum, because of all the relevant circumstances, out reasonably to recognise the documents described by reference to a particular subject matter. To reject as oppressive or as an abuse of process a subpoena because it directs production by reference to those relating to a specific subject matter within the recipients knowledge, suggests an excessive indulgence in legalism. Determination of whether the description of documents by that mode satisfies the required test of specification by reasonable particularity ought to be made by taking into account the facts and circumstances within the knowledge of the party t whom the subpoena is addressed. It ought to be expected of the addressee, being mindful of the facts about the subject matter known to him, that he will read the subpoena sensibly.”
[27] It is contended by the ANF that the Department of Health and Department of Treasury and Finance are not strangers to the negotiations for the new public sector nurses’ enterprise agreement and that the subject matter of the categories of documents sought to be provided would be well understood by the recipients.
[28] I disagree with the ANF’s contention that “the management of negotiations for a new nurses agreement for the Public Health Sector can be characterised as a “specific category”. By way of distinction, in McColls Case, the category of documents in relation to which production was sought was, a direction of a procedure to adopt if a B.L.F organiser enters a building site.
[29] The category sought by the ANF is not a direction, decision, report or other identifiable matter, but rather is directed to a process (management) of something which is itself a process (negotiation) over an indeterminate time period.
[30] I am of the view that Paragraphs 1 - 4 lack sufficient particularity as to the documents required to be produced such that it would impose an excessive burden on the recipient in determining what precisely is required to be produced.
[31] Consequently, I refuse to issue Paragraphs 1 - 4 of the Schedules to each of the three Orders to Produce.
[32] Paragraphs 5 and 6 of the Schedule to the Orders to Produce require the production of documents, notes, memoranda comprising the agenda and minutes of meetings of any Leadership Group, or Steering Committee, or any group howsoever called, chaired by the Department of Health.
“in relation to the strategic governance of the enterprise bargaining agreement process for the negotiations for a new nurses agreement for the Public Health Sector”
[33] These proposed Orders suffer from the same defects identified in paragraphs [30] above. Whilst the nature of these documents are specified as “agenda and minutes of meetings”, the body in respect of whom these documents are required to be specified are not sufficiently particularised. The characterisation of the documents are in relation to a process (strategic governance) of a process. The phrase “strategic governance” is too ill-defined for the purpose at hand.
[34] Consequently, I refuse to issue paragraphs 5 and 6 of the Schedule to each of the Orders to Produce.
[35] Paragraph 7 of the Schedule of each of the proposed Orders to Produce requires the production of notes, memoranda, documents comprising the agenda for and minutes of meetings of any EBA specific Reference group, or any group howsoever called, established to generate material and provide expert advice in relation to negotiations for a new nurses agreement for the Public Health Sector.
[36] This paragraph suffers from the same defects referred to in paragraphs [25] and [34] above. Consequently, I refuse to issue Paragraph 7 in the Schedule of each of the three proposed Orders to Produce.
Paragraphs 8 to 28
[37] Paragraphs 8 to 28 in the Schedule of each of the three Orders to Produce would require, if issued, the production of documents sought by the ANF from the VHIA in correspondence dated 29 November 2011 and 1 December 2011.
[38] It is the response of the VHIA to these requests for information which are particularised in the Bargaining Order Application as grounds for the ANF’s allegation that the VHIA has not met or is not meeting good faith bargaining requirement that relevant information be disclosed in a timely fashion: s228(1)(b).
[39] The relief sought by the ANF in the substantive proceedings includes at 4.3 and 4.5 of the draft Bargaining Order to be issued under s.230 of the Act, a direction that VHIA:
[40] Paragraphs 8 to 11 of the Schedule to each of the Orders to Produce are in identical terms to the information requested in the ANF correspondence dated 29 November 2011 and to paragraph 4.3 of the ANF’s proposed Bargaining Order which it seeks arising from the substantive proceedings.
[41] Similarly Paragraphs 12 to 28 of the Schedule of each Order to Produce are in identical terms to the information requested in the ANF correspondence dated 1 December 2011 and to paragraph 4.5 of the ANF’s proposed Bargaining Order which it seeks arising from the substantive proceedings.
[42] The VHIA submit that were Orders under s.590(2)(c) to be issued in the terms sought, it would significantly vitiate the substantive application in the sense that it would no longer be necessary for Fair Work Australia to consider the substantive issue and would have the effect that the applicant would be “given a significant part of the relief that it seeks on the substantive application.”
[43] At the hearing, the ANF dealt with this issue as follows:
PN184 THE COMMISSIONER: Mr White, before you sit down, there is a matter which you adverted to and in so doing referred to the two-step process, but it's again an issue that has troubled me and it is in summary this: that - I think it's orders 8 to 28 of each of the orders to produce mirror substantially the relief that you seek in your draft bargaining order.
PN185 MR WHITE: Yes, I understand. I'm sorry I haven't made it clear. The basis upon the application is in large part based on the inability or incapacity or unwillingness of the VHIA to fulfil its proper role as a bargaining representative under the Act. If the VHIA has the documents and hasn't produced them, then there's an obvious misfeasance, if you like. If the VHIA does not have the documents but the state does, then we say that's relevant not only for the content of the documents per se but the fact of the inability on the part of the VHIA and the ability on the part of the state to produce these documents. Given the documents are relevant, underscores the proposition that it is unable - the VHIA - to undertake its function. So the production of the documents, if the tribunal please, is relevant not only for the content of them but is relevant also to the role of the VHIA and its capacity to fulfil its role. Can you just bear with me for a moment?
PN186 THE COMMISSIONER: Certainly.
PN187 MR WHITE: If the tribunal please, I won't say any more about that, but we draw the distinction between the capacity to produce the documents, or the inability to produce the documents, as distinct from or different from the relevance of the content of those documents in any event and, once produced, then there can be the argument had not in a vacuum. At this stage there is at least an incomplete basis to have the argument; that is, if the documents are produced by the VHIA, then the fact of production is directly relevant quite apart from the content of the documents. If the VHIA does not produce the documents, but the government does, then that factor itself is also directly relevant. All that is quite apart from the content of the documents and the relevance available in bargaining.
PN188 THE COMMISSIONER: I understand your point; that it goes to the issue of capacity of the VHIA. However, if we get to the second step of the process, then the argument will be about, you say, relevance - I assume confidentiality, public interest immunity and so forth. It doesn't seem appropriate to those documents. If you get past that point, doesn't the ANF then have what it seeks by way of relief? You still get to that end point without me having the benefit of argument, evidence in substantive proceedings, as to a range of matters, including the very important point of whether those documents are relevant documents for the purposes of section 228(1)(c), I think it is.
PN189 That's my difficulty - is that I'm concerned that ultimately by one way or the other, by the argument that you have put, either the VHIA has it or a government department has it - the Department of Health or Treasury and Finance - there will be these documents and, presuming they're relevant to the litigation, then they will be uplifted to you, but that then renders otiose in fact what I would decide by way of substantive proceedings.
PN190 MR WHITE: Not really, Commissioner, because if they're produced at this stage then they're produced under this, by compulsion, and they are to be used for the purposes of this case and this case is underpinned in large part by the incapacity of the VHIA to act as a bargaining representative. Now, what it doesn't say is this: that to the extent that the ANF sought to use those documents for any other purpose outside the purpose for which they've been summoned, it would need to seek further orders from you in relation to how we could use them in the bargaining at large (indistinct) seek orders from the tribunal. Can you just bear with me a short time, please?
[44] I am satisfied that if I issue Orders 8 to 28 in the Schedule to each of the Orders to Produce, I would be defeating, in large part, the purpose of the substantive proceedings in relation to the ANF’s Bargaining Order Application. This is so for two reasons:
[45] Having regard to these considerations, I exercise my discretion under s.590(2)(c) of the Act and refuse to issue Paragraphs 8 - 28 of the Schedule of each of the three Orders to Produce.
[46] Consequently, I have determined not to issue any of the three Orders to Produce sought by the ANF against the VHIA, the Department of Health and the Department of Treasury and Finance.
COMMISSIONER
Appearances:
Mr E. White of Counsel and Mr J. McKenna of Counsel - Australian Nursing Federation
Mr F. Parry SC - Victorian Hospitals’ Industrial Association
Mr N. Green QC and Mr. A. Bell of Counsel for The State of Victoria (as Intervener)
Hearing details:
Monday, 12 December 2011
Final written submissions:
1 (1984) 159 CLR 163 at [12]
2 Print H2892 at p 2
4 (2005) 221 ALR 785
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