Communications Electrical Electronic Energy Information Postal Plumbing & Allied Services Union of Australia v McKenzie (No 1) [2009] FCA 649 (5 June 2009)

Last Updated: 26 June 2009

FEDERAL COURT OF AUSTRALIA

Communications Electrical Electronic Energy Information Postal Plumbing & Allied Services Union of Australia v McKenzie (No 1) [2009] FCA 649

COMMUNICATIONS ELECTRICAL ELECTRONIC ENERGY INFORMATION POSTAL PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA v CRAIG MCKENZIE, NATIONAL ELECTRICAL CONTRACTORS ASSOCIATION and STOWE AUSTRALIA PTY LIMITED
NSD 297 of 2009

PERRAM J
5 JUNE 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 297 of 2009

BETWEEN:

COMMUNICATIONS ELECTRICAL ELECTRONIC ENERGY INFORMATION POSTAL PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA Applicant

AND:	CRAIG MCKENZIE First Respondent NATIONAL ELECTRICAL CONTRACTORS ASSOCIATION Second Respondent STOWE AUSTRALIA PTY LIMITED Third Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	5 JUNE 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The respondents serve the applicant with any request for particulars by 4 pm on 29 May 2009.
2. The applicant supply the respondents with particulars properly requested by 4 pm on 12 June 2009.
3. Each respondent file and serve its defence by 4 pm on 26 June 2009.
4. The applicant file and serve any reply to the defences by 4 pm on 10 July 2009.
5. The parties each file and serve categories of documents for discovery by 24 July 2009 except that the first respondent shall not be required to give discovery.
6. The applicant, second respondent and third respondent each serve a list of documents on the other parties to the proceeding listing all documents required to be discovered together with an affidavit verifying the list by 14 August 2009.
7. The parties inspect discovered documents by 28 August 2009.
8. The applicant file and serve all affidavits upon which it intends to rely on or before 18 September 2009.
9. The second and third respondents file and serve all affidavits upon which they intend to rely by 30 October 2009.
10. The applicant file and serve any affidavits in reply to the affidavits of the second and third respondents by 27 November 2009.
11. The matter be stood over for further directions at 9.30 am on 8 December 2009.
    

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 297 of 2009

BETWEEN:

COMMUNICATIONS ELECTRICAL ELECTRONIC ENERGY INFORMATION POSTAL PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA Applicant

AND:	CRAIG MCKENZIE First Respondent NATIONAL ELECTRICAL CONTRACTORS ASSOCIATION Second Respondent STOWE AUSTRALIA PTY LIMITED Third Respondent

JUDGE:	PERRAM J
DATE:	5 JUNE 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. There are three issues between the parties. They are:

(a) whether and to what extent the first respondent is obliged to give discovery;

(b) whether the respondents should be required to serve evidence prior to the applicant closing its case; and

(c) the nature of the directions which are appropriate consequent upon the answers to those first two questions.

2. These issues arise in the context of the applicant pursuing the respondents for the imposition of a civil penalty under the Building and Construction Industry Improvement Act 2005 (Cth) (“the Act”). The first respondent is a natural person; the second and third respondents are corporations.

The first issue – extent of obligation to give discovery

3. The applicant submits that I should direct each of the respondents, including the personal respondent “to make discovery on oath save that the first respondent is not compelled to list or produce any documents which he believes in good faith fall within the privilege against the penalty”. I will not make this direction. It assumes, incorrectly, that the first respondent’s privilege inheres in documents when in truth it actually inheres in the first respondent. Because the applicant seeks the imposition of a penalty on the first respondent he is not obliged to give discovery: see Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129 at 147 [39] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ. The second and third respondents did not suggest that they should not be obliged to give discovery.

The second issue – time for service of evidence

4. The applicant submitted that I should direct that the respondents file any affidavits they wish in advance of the trial but retain the right to amend their defences and serve affidavits after the close of the applicant’s case. In the case of the first respondent I am certain that such a direction should not be made. It would be contrary to this Court’s decision in Australian Competition and Consumer Commission v FFE Building Services Ltd [2003] FCAFC 132; (2003) 130 FCR 37 at 44 [29] per Emmett, Hely and Jacobson JJ. The position of the other two respondents is a little more complex. Neither has the privilege that the first respondent does so that there is no prima facie reason why they should not be required to put their evidence on. It might be tidy to put those corporate respondents in the same position as the natural person respondent but I do not think that considerations of an aesthetic nature are sufficient to deny the applicant its entitlement to know the second and third respondents’ case in advance.
5. The same issue, in fact, arose in Australian Competition and Consumer Commission v FFE Building Services Ltd. Although the Court did not need to decide the issue, it is apparent that all parties, the first instance judge and the Full Court (130 FCR 37 at 39 [6]) considered that this was an appropriate course to take. In my opinion that assumption was a well-founded one. Accordingly the corporate respondents will not be relieved from the obligation to furnish their evidence prior to the trial.

The third issue – appropriate directions

6. I will make a number of directions. I have not made any order in relation to the granting of leave to issue subpoenas. The procedure which is normally adopted about that is that a party applies to issue the subpoena in the registry which I will then deal with in chambers.
7. I have not made a number of the other pre-trial directions sought because my anticipation will be that on 8 December 2009 I will fix the matter for hearing so the parties should have a better idea of how long it will take on that day. I will make appropriate pre-trial directions at that time.
   

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate:

Dated: 15 June 2009

Counsel for the Applicant:	Mr SEJ Prince
Counsel for the First Respondent:	Mr B Miles
Counsel for the Second and Third Respondents:	Mr G Boyce
Counsel for the Intervener:	Mr PC Coleman

Date of Hearing:	5 June 2009
Date of Judgment:	5 June 2009