FEDERAL COURT OF AUSTRALIA

Jacomb v Australian Municipal Administrative Clerical & Services Union

[2003] FCA 1143

PRACTICE & PROCEDURE – subpoena to produce documents – whether person can be obliged to generate document not already in existence under subpoena

Federal Court Rules  O 27 r 1

Acts Interpretation Act 1901 (Cth) s 25

WILLIAM ROBERT JACOMB v AUSTRALIAN MUNICIPAL ADMINISTRATIVE CLERICAL & SERVICES UNION

V477 of 2003

HEEREY J

7 OCTOBER 2003

MELBOURNE

THE COURT ORDERS THAT:

1.  The respondent is not obliged to produce, in answer to the subpoena for production dated 15 July 2003, material not already in existence.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     There is before the Court the return of a subpoena for production issued on 15 July 2003.  The substantive proceeding is, broadly speaking, an application under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) alleging sex discrimination on the ground that the rules of the respondent union contravene the Act because of their requirements for a minimum number of female office-holders.

2                     The subpoena seeks a substantial body of documents.  Many have already been supplied.  The National Executive President of the union, Mr Michael John O'Sullivan, has sworn an affidavit on 5 September 2003 detailing the documents which have been made available and also a number of documents sought by the subpoena which he says do not exist.  Mr O'Sullivan is being cross-examined about this but it is clear that a point of principle has emerged on which I think a ruling should be made.

3                     The question is whether, under the subpoena, the union can be obliged to generate a document where such a document is not in existence.  By way of example, item 1 in the schedule to the subpoena is in the following terms:

“Listing of all members from the Former [sic] Victorian Energy & Services Branch of the Union, listing name, Employer, Industry Division allocation, employment status, whether part time or full time, membership number, Job Title, Department Employed. 

This listing is to be as at 8 January 2001. 

The information is to be presented in electronic format, RTF, Tab Delimited or SYLK is acceptable.”

4                     Order 27 of the Federal Court Rules provides for the issue of subpoenas.  Rule 1 defines a subpoena for production as:

“An order in writing requiring the person named to attend as directed by the order and produce a document or thing for the purpose of evidence.”

5                     It is accepted by counsel for the union that “a document” in this context would include information in electronic form which can be simply printed out into hard copy.  But, he says, it does not extend to information which has to be created by the application of computer expertise, possibly at considerable expense from outside consultants. 

6                     I think this submission is correct.  It is consistent with the definition of “document” in s 25 of the Acts Interpretation Act 1901 (Cth) namely:

In any Act, unless the contrary intention appears:

  document includes:

(a) any paper or other material on which there is writing;

(b) any paper or other material on which there are marks, figures, symbols or

perforations having a meaning for persons qualified to interpret them; and

(c) any article or material from which sounds, images or writings are capable

of being reproduced with or without the aid of any other article or device.

7                     The essence of a subpoena, as a compulsory process of the Court, is to oblige persons (who more often than not are not parties to the litigation) to produce documents or things to enable the dispute between the parties to be properly adjudicated. 

8                     The Court is always concerned to see that oppressive burdens are not put on persons by its process.  A clear distinction can be made between a document, whether in paper or in electronic form, already in existence, and something which has to be created.  I do not think the latter situation falls within the terms of the Rules.  Nor is it in accordance with the principles underlying the regime of subpoenas.

9                     Needless to say, sensible co-operation may make it mutually convenient for all concerned that some extract or summary of information contained in a large quantity of paper or electronic material be prepared and, by consent, produced in answer to the subpoena.   But I think the legal obligation resting on the person under subpoena for production is as I have stated.

Associate:

Dated:              17 October 2003