FEDERAL COURT OF AUSTRALIA

Australian Workers’ Union v Registered Organisations Commissioner [2017] FCA 1554

ORDERS

THE COURT ORDERS THAT:

Minister Subpoena

1.    Paragraphs 4, 5, 6 and 8 of the schedule of documents to the subpoena addressed to Senator the Honourable Michaelia Cash, Minister for Employment, Minister for Women and Minister Assisting the Prime Minister for the Public Service (“Minister”) are set aside.

2.    In relation to paragraph 3 of the schedule of documents to the subpoena, compliance is excused for records of communications with delegates, servants or agents of the Fair Work Ombudsman who did not provide services to or otherwise provide assistance to the Registered Organisations Commissioner in relation to the subject matters listed in sub-paras 3(a) –(d) in the period 1 August 2017 to 31 October 2017.

3.    The Minister’s interlocutory application to set aside the subpoena be otherwise dismissed with costs reserved.

4.    The date for production of the subpoena and the documents required by it be extended to 10.00 am on 5 January 2018, whereupon, in accordance with any direction that a Registrar may make, inspection be provided to those parties that seek it of all documents produced save for any documents which are the subject of an objection to inspection made by the Minister (“objections”).

5.    On or before 4.00 pm on 12 January 2018, the Minister file and serve any affidavit and any outline of submissions in support of the objections.

6.    On or before 4.00 pm on 17 January 2018, the parties file and serve any affidavits or any outlines of submissions in support of or in opposition to the objections.

7.    The determination of the objections be fixed for hearing before Justice North at 10.15 am on 22 January 2018.

8.    There be liberty to apply on two days written notice.

De Garis Subpoena

9.    Paragraphs 4 and 5 of the schedule of documents to the subpoena addressed to David De Garis (“De Garis”) are set aside.

10.    In relation to paragraph 3 of the subpoena, compliance is excused for records of communications with delegates, servants or agents of the Fair Work Ombudsman who did not provide services to or otherwise provide assistance to the Registered Organisations Commissioner in relation to the subject matters listed in sub-paras 3(a)–(d) in the period 1 August 2017 to 31 October 2017.

11.    De Garis’ interlocutory application to set aside the subpoena be otherwise dismissed with costs reserved.

12.    The date for production of the subpoena and the documents required by it be extended to 10.00 am on 11 January 2018, whereupon, in accordance with any direction a Registrar may make, inspection be provided to those parties that seek it of all documents produced save for any documents which are the subject of an objection to inspection made by De Garis (“objections”).

13.    On or before 4.00 pm on 12 January 2018, De Garis file and serve any affidavit and any outline of submissions in support of the objections.

14.    On or before 4.00 pm on 17 January 2018, the parties file and serve any affidavits or outlines of submissions in support of or in opposition to the objections.

15.    The determination of the objections be fixed for hearing before Justice North at 10.15 am on 22 January 2018.

16.    There be liberty to apply on two days written notice.

Fair Work Ombudsman Subpoena

17.    In relation to paragraphs 1, 2, 3, 4 and 5 of the schedule of documents to the subpoena addressed to the Fair Work Ombudsman (“FWO”), compliance is excused for records of communications with delegates, servants or agents of the FWO who did not provide services or otherwise provide assistance to the Registered Organisations Commissioner in relation to the subject matters listed in the sub-paragraphs of each paragraph in the period 1 August 2017 to 31 October 2017.

18.    In relation to paragraphs 4 and 5 of the subpoena, compliance is excused for documents created in the period 25 October 2017 to 31 October 2017.

19.    The FWO’s interlocutory application to set aside the subpoena be otherwise dismissed with costs reserved.

20.    The date for production of the subpoena and the documents required by it be extended to 2.15 pm on 16 January 2018, whereupon, in accordance with any direction that a Registrar may make, inspection be provided to those parties that seek it of all documents produced save for any documents which are the subject of objection to inspection made by the FWO (“objections”).

21.    On or before 4 pm on 16 January 2018, the FWO file and serve any affidavit and any outline of submissions in support of the objections.

22.    On or before 4 pm on 18 January 2018, the parties file and serve any affidavits or any outlines of submissions in support of or in opposition to the objections.

23.    The determination of the objections be fixed for hearing before Justice North at 10.15 am on 22 January 2018.

24.    There be liberty to apply on two days written notice.

Lee Subpoena

25.    The interlocutory application made by Mark Lee to set aside the subpoena addressed to him be dismissed with costs reserved.

26.    The date for production of the subpoena and the documents required by it be extended to 10.00 am on 11 January 2018.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMBERG J:

1    On the application of the Australian Workers’ Union (“AWU”), subpoenas have been issued addressed to:

    The Honourable Michaelia Cash, the Minister for Employment, Minister for Women and Minister Assisting the Prime Minister for the public service (“Minister”);

    The Fair Work Ombudsman (“FWO”);

    Mr Mark Lee (“Mr Lee”); and

    Mr David De Garis (“Mr De Garis”)

(together “subpoena recipients”).

2    Each of the subpoena recipients has made an application to set aside the subpoena issued to that person.

3    In relation to each application, it is contended that categories of documents sought by the subpoena lack apparent relevance and that the subpoena ought be set aside on that basis. It is therefore necessary to outline briefly the issues raised in the proceeding.

4    The first respondent in the proceeding is the Registered Organisations Commissioner (“Commissioner”). The office of the Commissioner is established under s 329AA of the Fair Work (Registered Organisations) Act 2009 (Cth) (“RO Act”). The Commissioner, as well as staff assisting the Commissioner as mentioned in s 329CA(1) of the RO Act, constitute the Registered Organisation Commission (“ROC”) established by s 329DA of the RO Act.

5    The FWO is established by section 681 of the Fair Work Act 2009 (Cth) (“FW Act”) and the office of the FWO is established by s 696 of the FW Act. The FWO’s functions are prescribed by s 682 of the FW Act.

6    Section 329CA(1) of the RO Act provides that “[t]he staff assisting the Commissioner are to be persons engaged under the Public Service Act 1999 and made available for the purpose by the Fair Work Ombudsman (within the meaning of the Fair Work Act)”.

7    On 15 August 2017, the Minister wrote a letter to the Commissioner in which she referred to media reports regarding a donation of $100,000 reportedly made by the AWU in 2005 to an entity called “GetUp” (“GetUp”). The Minister’s letter noted that media reports had questioned whether or not the donation to GetUp was validly authorised in accordance with the AWU’s rules. The Minister requested the Commissioner give consideration to investigating the matter.

8    On 16 August 2017, Mr Chris Enright, a delegate of the Commissioner, wrote to the National Secretary of the AWU advising that the ROC was conducting a preliminary assessment in relation to monies donated to GetUp and requested that the AWU provide various documents relating thereto.

9    Correspondence then ensued with the solicitors for the AWU and on 29 August 2017 Mr Enright, in correspondence to the AWU’s solicitors, requested that the AWU provide further documents to the ROC in relation to a $50,000 donation by the Victorian Branch of the AWU to GetUp and also a $50,000 donation to GetUp made by the National Office of the AWU each made in the financial year ending 30 June 2006.

10    On 20 October 2017, Mr Enright gave notice to the AWU that he had decided to conduct an investigation (“investigation”) into whether certain donations made by the National Office and the Victorian Branch in the financial years ending 30 June 2006 and 30 June 2008 had been properly approved under the rules of the AWU. The donations referred to included the donations to GetUp as well as various other donations made in the financial year ending 30 June 2008 to various entities with apparent association to the “ALP”. Mr Enright advised that he was investigating whether, in relation to those donations and their reporting, various provisions of the Workplace Relations Act 1996 (Cth) had been contravened.

11    In his letter, Mr Enright stated that he was satisfied that there were reasonable grounds to conduct an investigation under s 331(2) of the RO Act as to whether various civil penalty provisions within the meaning of s 305 had been contravened.

12    At about 9.40 am on 24 October 2017, a Magistrate issued warrants authorising officers of the Australian Federal Police (“AFP”) to search the premises of the National Office of the AWU and authorising officers of the AFP to search the premises of the Victorian Branch of the AWU (“Warrants”). Each warrant purported to authorise the conduct of searches for various categories of documents related to the making by the AWU of the donations referred to in Mr Enright’s 20 October 2017 correspondence to the AWU.

13    It is alleged that sometime before about 4.30 pm on 24 October 2017, media crews attended at the premises of the National Office of the AWU in Sydney and the Victorian Branch Office of the AWU in Melbourne. At about 4.30 pm, officers of the AFP arrived at those premises and, in execution of the warrants, seized various documents.

14    It is not in contest that Mr Lee was at relevant times an employee of the FWO and its Media Director. Nor is it contested that Mr Lee was involved in providing media related services to the Commissioner in relation to the investigation.

15    It is not in contest that Mr De Garis was employed in the office of the Minister until about 25 October 2017.

16    On 25 October 2017, the AWU commenced these proceedings. In summary, the AWU seeks:

    Declarations that the Warrants are invalid;

    Declarations that the Commissioner’s decision to commence the investigation is invalid, and orders in the nature of certiorari and prohibition quashing that decision and prohibiting the Commissioner from giving further effect to it;

    An order in the nature of prohibition or an injunction preventing the AFP from giving further effect to either of the Warrants; and

    An injunction requiring the AFP to return to the AWU the documents seized in the execution of the Warrants.

17    The matter came before the Court on the AWU’s application for interlocutory relief. Commitments made by the Commissioner not to receive and retain documents seized under the Warrants and commitments made by the AFP to refrain from giving the documents seized to the Commissioner were noted by the Court and various orders have been made for the progress of the proceeding to trial. The proceeding is listed for trial commencing on 26 February 2018.

Legal Principles

18    The applicable principles which guide a determination as to whether or not a subpoena should be set aside are largely uncontroversial, but as might be expected there are differences between the AWU and the subpoena recipients as to the application of those principles to the subpoenas in question.

19    It is necessary that a subpoena has a legitimate forensic purpose in relation to the issues in the proceeding and that the documents sought have apparent relevance to those issues. In Wong v Sklavos [2014] FCAFC 120, Jacobson, White and Gleeson JJ at [12] expressed the position as follows:

Although the parties referred to several authorities concerning the requirement for subpoenaed documents to have apparent relevance to an issue in a proceeding, in our opinion, the applicable principles are well established. The party issuing a subpoena bears the onus of demonstrating that the subpoena has a legitimate forensic purpose in relation to the issues in the proceedings: Santos Ltd v Pipelines Authority of South Australia (1996) 66 SASR 38 at 52. A subpoena may be set aside if it requires the production of documents which do not have apparent relevance to the issues arising on the pleadings: Trade Practice Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90; Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) [2010] FCA 398; (2010) 269 ALR 76 at [39]-[40]; McHugh v Australian Jockey Club Limited [No 2] [2011] FCA 724 at [13]; McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233; (2005) 221 ALR 785 at [35]; Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 558 at [17]. Other cases have used different terminology, but with essentially the same effect, for example, by requiring that, viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative (R v Barton (1981) 2 NSWLR 414 at 420), or that the material sought is reasonably likely to add in some way to the relevant evidence in the case (Spencer Motors Pty Ltd v LNC Industries Ltd (1982) 2 NSWLR 921 at 927), or that it be “on the cards” that the documents sought will materially assist the party at whose request the subpoena has been issued: Allister v The Queen (1984) 154 CLR 404 at 414; Tamawood Ltd v Habitare Developments Pty Ltd [2009] FCA 364 at [13], [35]-[38].

20    In Master Builders’ Association (NSW) v Plumbers and Gasfitters Employees’ Union of Australia (No 1) (1987) 20 IR 387, Gray J observed (at 393) that “the test of relevance must necessarily be a generous one”. Similarly, in Boase v Axis International Management Pty Ltd (No 3) [2012] WASC 498, Beech J (at [11]) referred to the test for apparent relevance being “a low threshold”. His Honour went on to explain (at [12]–[14]) that it must necessarily be so because of the difficulty of determining actual relevance prior to trial.

21    It was contended by the Minister that a subpoena cannot be used as part of a fishing expedition in the sense that it cannot be used in an endeavour to discover whether a person has a case at all. But as Stone J stated in Dorajay Pty Ltd v Aristocrat Leisure Limited [2005] FCA 588 at [34], a contention that a subpoena constitutes ‘fishing’ essentially amounts to a submission that there is no legitimate forensic purpose supporting the documents sought. Furthermore, as Heerey, Branson and Merkel JJ observed in Bailey v Beagle Management Pty Ltd (2001) 105 FCR 136 at [27], the concept of ‘fishing’ has undergone substantial rethinking in recent years. Their Honours emphasised the statement of the majority of the High Court (Stephen, Mason and Murphy JJ) in Grant v Downs (1976) 135 CLR 674 at 685 that the public interest “requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available”.

22    The burden of a subpoena must not, in all the circumstances, be oppressive in terms of its impact on the recipient. As Sackville J said in Seven Network Ltd v News Ltd (No 5) [2005] FCA 510 at [12], in determining whether a subpoena is oppressive the following comments of Deane and Gaudron JJ in Hamilton v Oades (1989) 166 CLR 486 at 502 are apposite (citations omitted):

The power of a court to control and supervise its process to prevent injustice is not restricted to defined and closed categories. In this context injustice is not simply a question of the purpose or motive for which the relevant proceedings were instituted but includes a consideration of the consequences of the proceedings for the person invoking the power. The terms “oppressive” and “vexatious” are often used to signify those considerations which justify the exercise of the power to control proceedings to prevent injustice, those terms respectively conveying, in appropriate context, the meaning that the proceedings are “seriously and unfairly burdensome, prejudicial or damaging” and “productive of serious and unjustified trouble and harassment”.

See also McIlwain v Ramsey Food Processing Pty Ltd [2005] FCA 1233 at [35] (Greenwood J).

23    Finally, in relation to oppression, what is involved is a balancing of the respective public and private interests. It is only when the private interests of the individual outweigh the public interest in the administration of justice that the subpoena should be set aside: Wong at [31]; Master Builders’ Association at 390.

Grounds in support of the AWU’s Application

24    The grounds upon which the AWU relies in support of its claims for relief are set out in the affidavit filed in support of the AWU’s Originating Application and include the following:

    That the Commissioner could not have been “satisfied that there are reasonable grounds” to conduct an investigation as to whether civil penalty provisions had been contravened by reasons of the alleged non-compliance with the AWU rules, because the conduct alleged to have been non-compliant occurred more than 4 years ago and is therefore deemed, by reason of s 320 of the RO Act (and its legislative predecessors), to be compliant with the rules.

    That the decision to conduct the investigation was made for an improper political purpose;

    That the decision to conduct the investigation was ultra vires, because irrelevant political considerations were taken into account in the making of the decision; and

    That in deciding to conduct the investigation the Commissioner impermissibly acted at the direction of the Minister.

25    In support of those grounds the AWU asserts by its written submission a number of facts from which the AWU contends it may be inferred that the decision to conduct the investigation was made for an improper political purpose, or was made taking into account irrelevant political considerations, or was made at the direction of the Minister. Many but not all of the asserted facts are taken from the affidavit made in support of the Originating Application. They are as follows:

    the decision to conduct an investigation was made following referrals from the Minister dated 15 and 17 August 2017;

    the Commissioner has not denied that in addition to the referral there may have been further communications between the Minister’s office and the ROC;

    there was telephone communication between Mr Enright and the Minister’s office in relation to the referrals;

    the focus of the referrals and the investigation was on donations made to persons and entities associated with the Australian Labor Party at a time when the Secretary of the AWU was the Honourable Bill Shorten MP, who is currently the federal Leader of the Opposition;

    the conduct that was the subject of the investigation occurred between nine and 11 years before the decision to conduct an investigation was made;

    the Commissioner did not give notice to the AWU before 20 October 2017 that it was considering investigating donations other than two donations to GetUp in the financial year ending 30 June 2006, and did not at any point request that the AWU provide the ROC with any documents in relation to those donations;

    the Commissioner applied for search warrants, the execution of which was covered by the media, rather than issuing a notice to produce under s 335 of the RO Act;

    the FWO’s Director of Media, Mr Lee, performed work for the ROC, and was made aware prior to the execution of the warrants that the warrants would be executed;

    at the time he was made aware that the warrants would be executed, Mr Lee had an offer to commence employment as the Minister’s Senior Media Adviser, replacing Mr De Garis in that role;

    on 24 October 2017, before the warrants were executed, the Minister’s Senior Media Adviser, Mr De Garis, informed journalists that the warrants would be executed; and

    media crews were present at the premises of the National Office of the AWU in Sydney and the Victorian Branch Office of the AWU in Melbourne before the AFP arrived to execute the warrants.

The Minister Subpoena and the De Garis Subpoena

26    It is convenient to deal with the subpoenas addressed to the Minister and Mr De Garis together. The schedule of documents to each of those subpoenas (and the other subpoenas) is divided into numbered paragraphs. It is convenient to refer to each paragraph as a “category” with a corresponding number to the paragraph in question.

27    Mr De Garis was employed by the Minister over the relevant period through to about 25 October 2017. Subject to minor differences that were not suggested to be material, all of the categories of documents sought from Mr De Garis correspond with those sought of the Minister, namely, the Minister’s categories 1–4 correspond with Mr De Garis’ categories 1–4 and the Minister’s category 6 corresponds with Mr De Garis’ category 5. Communications involving Mr De Garis may well be caught in each of those categories in the Minister subpoena. Given that Mr De Garis is no longer in the Minister’s employment, the apparent purpose of the subpoena directed to him is to capture any documents in the common categories that are in his possession or control and not that of the Minister.

28    As Mr De Garis adopted the Minister’s submissions, his position is no different to that of the Minister. Unless otherwise stated, whilst I will now expressly address only the Minister subpoena, my reasons and determination in relation to each category in that subpoena are the same for the corresponding categories in the De Garis subpoena.

29    Document categories 1 and 2 concern communications between the Minister or her delegates, servants or agents and the Commissioner or the Commissioner’s delegates, servants or agents. Category 1 seeks communications in relation to matters the subject of the investigation. Category 2 seeks documents relating to the investigations carried out or proposed to be carried out by the Commissioner into those matters and relating to the application for the warrants and the execution or proposed execution of the warrants. Each category is limited to records of communications made in the period 1 August 2017 and 31 October 2017.

30    The Minister (and Mr De Garis) accept that documents in categories 1 and 2 created between 1 August and 20 October 2017 have apparent relevance and are prepared to produce those documents. They oppose the production of documents created in the 10 day period between 21 and 31 October 2017. The Minister contended that to the extent that the subpoena seeks documents created after 20 October 2017, being the date upon which the decision to conduct the investigation was made, the subpoena should be set aside. In this respect, the Minister said that documents created by the Minister after the decision to investigate was made, cannot have impermissibly directed the decision to investigate or affected its purpose.

31    In response, the AWU contended that a communication that takes place after a decision has been made may reveal the purpose for which the decision was made, or the considerations that were taken into account in making that decision. The AWU pointed to the occurrence of significant events after 20 October 2017 in consequence of the decision, including the execution of the warrants and public attention given to that circumstance, as suggestive of the likelihood that communication between the Minister’s office and the ROC may have occurred which may well touch upon the decision’s purpose.

32    I accept that there is a reasonable basis for thinking that there may be documents created in the period 21 to 31 October 2017 that are of apparent relevance. The likelihood may well be small but the time period involved is short and the additional burden on the Minister is unlikely to be large. In those circumstances the balance of interests falls in favour of the documents being produced.

33    The Minister also took objection on the same basis to the production of documents in the period 21 to 31 October 2017 required by category 7. I reject that objection for the same reasons.

34    The challenge made to categories 1, 2 and 7 should be rejected.

35    I then turn to category 3 which concerns communication between the Minister, her delegates, servants or agents and the FWO, her delegates, servants or agents including Mr Lee. The Minister’s objection based on forensic purpose and apparent relevance is that the decision to investigate cannot logically have been affected by matters not communicated between the Minister and the ROC. In response, the AWU contended that the Minister’s submissions insufficiently appreciated the scheme of the RO Act and in particular that staff of the FWO including Mr Lee were involved in providing services to or otherwise assisting the ROC in relation to the subject matter of the documents called for by the subpoena. Accordingly, the AWU contended that the documents called for by category 3 stand in the same position as communications between the Minister’s office and the ROC about those matters.

36    To that, the Minister responded that category 3 sought communications with all delegates, servants or agents of the FWO and was not confined to those persons who provided assistance to the ROC in the relevant period. Whilst it is understandable why the subpoena was framed broadly so as to capture all relevant communications between the Minister and all of the Fair Work Ombudsman’s delegates, servants or agents, the AWU accepted that the communications it sought to obtain were those of the FWO and those delegates, servants or agents of the FWO who in the period 1 August 2017 to 31 October 2017 provided services to or otherwise assisted the ROC in relation to the subject matter of the documents called for by the subpoena.

37    I accept that, with that limitation, the AWU has a legitimate forensic purpose and that the documents in this category have apparent relevance. To apply that limitation, I propose to excuse compliance by the Minister with the requirements of category 3 but only insofar as it relates to documents recording communications made between the Minister, her delegates, servants or agents and the delegates, servants or agents of the FWO who were not, in the period 1 August 2017 to 31 October 2017, involved in providing services or other assistance to the ROC in relation to the subject matter of the documents called for by category 3. For clarity, the limitation I intend to impose is not intended to exclude from production communications with Mr Lee.

38    Category 4 concerns communication between the Minister, her delegates, servants or agents and the AFP in the period 1 August 2017 to 31 October 2017 about the investigation and the application for and execution of the warrants. Category 6 concerns communications between the Minister, her delegates, servants or agents and any print, television, internet or other media organisation, their servants or agents about the investigation and the application for and execution of the warrants. Category 5 concerns what may be regarded as internal communications between the Minister, her delegates, servants or agents and any officers, employees or agents of the Commonwealth Department of Employment in the same period. The topics it relates to are the donations, the investigations carried out by the Commissioner in relation to the donations and the application for and execution of the warrants. Like category 5, category 8 also concerns internal communications between the Minister and, in this instance, persons who may be more directly involved in assisting her, her own delegates, servants or agents. The topics raised concern the donations, the referral made by the Minister to the Commissioner, investigations carried out by the Commissioner as well as the application for and execution of the warrants.

39    The Minister’s challenge to each of categories 4, 5, 6 and 8 is based on a lack of legitimate forensic purpose and apparent relevance. The Minister accepts that the documents sought may be probative of the Minister’s purpose including whether the Minister sought to derive political advantage from the investigation and the execution of the warrants. However, Senior Counsel for the Minister contended that the purpose of the Minister could only be relevant to the decision to investigate insofar as it was found in communications to the ROC.

40    The substantive response of the AWU to that contention was that knowledge of the nature and extent of the Minister’s purpose was necessary to provide a context in which the communications between the Minister and the ROC could be properly interpreted. It was suggested that in circumstances where communications between the Minister and the ROC may have been guarded or disguised, a proper understanding of the Minister’s purpose may be necessary to resolve any ambiguity in the content of those communications.

41    I need not resolve at this juncture whether these categories seek documents which are of apparent relevance. Whilst the Minister may have an interest in the outcome of this proceeding, she is not a party to it and ought not be burdened with making substantial enquiries in the search for documents unless and until it is apparent that the documents sought may be of assistance to the AWU’s case. While such documents may well provide the interpretive assistance which the AWU contended they may, that will not be known until the primary documents, the communications between the Minister and the ROC, are produced and inspected. In those circumstances, the balance of the competing interests favours the subpoena directed to the Minister being set aside in relation to categories 4, 5, 6 and 8.

42    Should it be necessary, the AWU will have liberty to seek production of the documents sought under those categories (as well as the corresponding categories in the De Garis subpoena) once what I have called the primary documents are produced and inspected.

43    The remaining three categories in the Minister subpoena concern an offer of engagement or employment within the Minister’s office made to Mr Lee and any later decision to defer, suspend or withdraw it. The same categories of documents are sought from Mr Lee and also from the FWO. It is convenient that I give my reasons for refusing to set aside the Minister subpoena in relation to those categories in the reasons that follow.

44    Lastly, I need not deal further with any contention based on oppression as the Minister did not ultimately press oppression as a separate basis for setting aside any category of the subpoena.

45    In sum, the Minister subpoena will be set aside in relation to categories 4, 5, 6 and 8 and the De Garis subpoena will be set aside in relation to categories 4 and 5. The burden of category 3 of the Minister subpoena and category 3 of the De Garis subpoena will be clarified to exclude communications with persons who were not involved in providing assistance to the ROC. Otherwise, the applications to set aside these subpoenas will be dismissed.

The FWO Subpoena and the Lee Subpoena

46    I turn next to the subpoenas addressed to the FWO and to Mr Lee. It is convenient that they be addressed together. It was accepted in the submissions made for Mr Lee that Mr Lee provided assistance with media matters to the ROC in the course of his employment by the FWO. Both the FWO subpoena and the Lee subpoena are largely directed to communications involving the FWO or her delegates, servant or agents who provided services to or otherwise gave assistance to the ROC in the period 1 August 2017 to 31 October 2017. Categories 1 and 2 of the FWO subpoena largely correspond with category 2 of the Lee subpoena. Category 3 of the FWO subpoena largely corresponds with category 1 of the Lee subpoena. Category 4 of the FWO subpoena corresponds with category 3 of the Lee subpoena and category 5 of the FWO subpoena largely corresponds with category 4 of the Lee subpoena. For the purposes of assessing legitimate forensic purpose and apparent relevance, any differences between the categories said to largely correspond are not material. Unless otherwise stated, I will address the FWO subpoena on the basis that my reasons and determination for each category in that subpoena are the same for the corresponding category in the Lee subpoena.

47    As earlier indicated, it is only the communications involving the FWO and her servants, delegates or agents who provided assistance to the ROC that are the real target of the AWU’s subpoena. It is unnecessary for the net to be cast any wider, even if the narrowing is more a matter of form than substance. I will make orders making it clear that the obligation upon the FWO to produce documents will be limited accordingly.

48    Limited in the way I have indicated, each of categories 1 to 5 of the FWO subpoena are seeking records of communications between persons who provided services or otherwise gave assistance to the ROC in relation to the subject matter of the documents called for and the following persons:

(i)    the Minister and her agents, etc (categories 1 and 2);

(ii)    the Commissioner and his agents, etc (category 3);

(iii)    the AFP (category 4); and

(iv)    the media.

49    The topics covered by those categories correspond with those in categories 1 to 4 of the Minister subpoena.

50    I am satisfied that in seeking each of categories 1 to 5, the AWU has a legitimate forensic purpose of demonstrating that the decision to initiate the investigation was motivated by the political purpose alleged or was directed by the Minister.

51    The documents sought in categories 1 and 2 concern communications between persons assisting the ROC and the Minister and her agent. The apparent relevance of communications between persons in like categories was conceded by the Minister and correctly so. Documents in these categories may demonstrate the purpose for which the ROC commenced the investigation including any directions or encouragement to investigate communicated from the Minister’s office to persons assisting the ROC. For the reasons given in dealing with the Minister subpoena, I do not accept that the period in question should be limited to 1 August 2017 to 20 October 2017.

52    The documents sought in category 3 are concerned with communications which may be considered internal communications to the ROC as they relate to communications between delegates, etc of the ROC and delegates, etc of the FWO all of whom were providing the ROC with services or other assistance. Documents in the topics called up by this category may reveal the purpose for the investigation including by demonstrating the considerations taken into account by the ROC in deciding to conduct the investigation. I do not accept that the period in question should be narrower than that sought under this category. Internal communications which occurred after the decision to investigate was made may reveal the purpose or motivation for the decision. The number of days involved is short and any extra burden is likely to be small.

53    Categories 4 and 5 concern communications between persons assisting the ROC and (i) the AFP and (ii) media organisations. The extent to which the ROC through persons assisting it were involved in the manner and timing of the execution of the warrants and the facilitation of the media exposure given to that event, may expose the political purpose for the investigation which the AWU has asserted existed. For that reason, the documents called for have apparent relevance. In this case the period in question should extend to the day the warrants were executed (24 October 2017) but I can see no justification for extending the period beyond that date.

54    The FWO and in particular Mr Lee, relied on a submission that the AWU were ‘fishing’ as a basis for setting aside the subpoenas. Where a legitimate forensic purpose exists and the documents sought have apparent relevance, the assertion that the party issuing a subpoena is on a fishing expedition is unlikely to be persuasive. Mr Lee’s submission to that end proceeded on the basis that it was necessary for the AWU to have provided evidence to support the existence of the documents it seeks, otherwise the subpoena should be regarded as a fishing expedition “to see whether any such documents are in existence”. That submission misunderstands the nature of the limitation imposed by the notion of ‘fishing’. The limitation is concerned with an attempt to discover a case. When the nature of the case being pursued is apparent, which it usually is when legitimate purpose is demonstrated, it is not ‘fishing’ to seek to support that case through the production of documents of apparent relevance which are not known to exist but which, as a matter of reasonable hypothesis, may well exist. The AWU has demonstrated the case which it pursues. I am satisfied that there is a reasonable hypothesis that the documents it seeks to support that case may exist.

55    I then turn to categories 6 to 8 of the FWO subpoena and categories 5 to 7 of the Lee subpoena. These categories concern any offer of engagement or employment made to Mr Lee for a position in the Minister’s office or the Commonwealth Department of Employment as well as any documents relating to any decision to defer, suspend or withdraw any such engagement or employment.

56    The AWU submission in support of the forensic purpose and apparent relevance of the documents called up by these categories was as follows (citations omitted):

[63]    The material before the Court shows that, at the time the warrants were executed, it was intended that Mr Lee would replace Mr De Garis as the Minister’s Senior Media Adviser. The material also shows that, although he officially worked for the FWO, Mr Lee performed services for the ROC, including issuing statements about the execution of the warrants to media organisations on behalf of the ROC. As part of his role in performing these services, Mr Lee was informed of the plan to execute the warrants on the afternoon of 24 October 2017 before the general public.

[64]    Documents relating to the offer to Mr Lee of a position in the Minister’s office are relevant to showing the closeness of the association between the ROC and the Minister’s office. That the ROC was receiving services from a person with a close personal or professional connection with the Minister’s office makes it more likely that the ROC may have made its decision to commence an investigation for improper political purposes. That this may be so is made more likely by the subsequent decision to defer, suspend or withdraw the offer of employment to Mr Lee which is the subject of category 11. That about-face bears the hallmarks of a desire to disassociate the Minister’s office from the ROC, which in turns bears the hallmarks of a consciousness of guilt that is capable of throwing light on the previous decision made in the course of pursuing the AWU.

57    There was objection taken to the admissibility of some of the material facts upon which that submission relies which were set out in an affidavit of Mr Crosthwaite filed by the AWU just prior to the hearing of these applications. I need not determine that challenge. It is not necessary for the matters set out in Mr Crosthwaite’s affidavit to be accepted as evidence of the truth of the facts there asserted. For present purposes, it suffices for the AWU to rely on the facts there asserted as material facts relied upon by it in support of its substantive case.

58    However, any such reliance was also opposed on the basis that the AWU ought to be confined to the material facts given in the supporting affidavit of Mr Farouque filed with the Originating Application. It was said by the FWO and Mr Lee that it would be wrong to allow the AWU to rely upon a case expanded upon for the purpose of resisting the setting aside of subpoenas.

59    With the consent of the parties and with an eye to expedition and efficient case management, this proceeding is not being conducted on the basis of an exchange of formal pleadings. The intention behind the consent orders made by the Court on 22 November 2017 was that notice of material facts relied upon by the parties will be given through the affidavit of Mr Farouque and outlines of evidence and submissions yet to be filed and exchanged. In those circumstances, the further material facts set out in Mr Crosthwaite’s affidavit ought not be regarded as merely designed to resist the setting aside of the subpoenas. As the AWU confirmed, the further material facts (some of which only recently became known as a result of discovery) are facts that the AWU intends to rely upon at trial. All that has occurred is that the resistance to the production of documents called up by the subpoenas has required the AWU to identify those facts at an earlier time than that envisaged by the directions made by the Court.

60    A recipient of a subpoena is entitled to have notice of the case intended to be made at trial in order to assess whether a basis exists for the subpoena to be set aside. That notice will usually be found in formal pleadings. There are, as I have said, no formal pleadings in this case. But the FWO and Mr Lee do not complain of a lack of notice as to the nature and extent of the AWU’s intended case at trial. Their complaint is not based in any claim of prejudice and seems to insist upon formality for no apparent purpose. I reject the contention that the AWU should be confined to the facts asserted in Mr Farouque’s affidavit. I should add, in case it is not already clear, that other than in relation to the categories now in issue it has not been necessary to take into account the matters addressed by Mr Crosthwaite’s affidavit.

61    The submission of the AWU set out above demonstrates that the AWU has a legitimate forensic purpose of seeking to show the existence of a close association between persons assisting the ROC and the Minister and her office. The documents sought have apparent relevance to that subject. On the same basis as earlier explained, the production of these documents is not part of a ‘fishing’ expedition.

62    I reject the submission that categories 6 to 8 of the FWO subpoena, categories 5 to 7 of the Lee subpoena and categories 9 to 11 of the Minister subpoena should be set aside.

63    The FWO also relied upon oppression as a basis for setting aside the FWO subpoena. An affidavit filed in support of that contention by the solicitor for the FWO stated that there were approximately 793 persons employed by the FWO in the period 1 August 2017 to 31 October 2017. The affidavit stated that based on instructions received, compliance with the FWO subpoena would require “weeks worth of work by FWO personnel”. Counsel for the FWO submitted in respect of oppression that what was crucial was the fact that the FWO employed 793 staff. Counsel contended that a range of devices and other repositories of information would need to be searched in relation to each of the 793 staff members.

64    As previously stated, the burden of the subpoena to the FWO will not extend to providing documents recording communications involving those delegates, servants or agents of the FWO who were not involved in providing services to or otherwise assisting the ROC in relation to the subject matters of the documents called for by the subpoena. As a result of the Court’s inquiry of the FWO as to how many FWO staff would be involved if the subpoena was limited in that way, the FWO’s solicitor responded by correspondence received after the hearing that the FWO had “identified that relevant documents falling within the scope of the FWO subpoena are likely to be held by approximately 20-30 FWO staff”.

65    That correspondence was followed up the next day with further correspondence ostensibly addressing a query made of each subpoena recipient as to the time required for compliance with the subpoena should the subpoena not be set aside. In that correspondence it was stated that information had been received from the FWO’s ICT providers that, on the basis of relevant searches being confined to approximately 20-30 staff, it was expected that approximately 1,378 working days would be required to conduct necessary searches. It was elsewhere suggested in the correspondence that the bulk of that task could be completed by 1 April 2018.

66    Despite the reduction of the persons whose devices and other records would need to be searched by a factor of more than 25, it seems that the FWO has substantially increased its estimate of the time and effort likely to be required from that given in the affidavit of its solicitor. That estimate has moved from “weeks” to more than 3 months or, on one of the estimates given, nearly 4 years.

67    No attempt was made by the FWO to explain the inconsistency between the information deposed to in the affidavit of its solicitor and the later information provided by correspondence. All of that calls into question the reliability of the information provided by the FWO. I am not satisfied that the FWO has undertaken a proper assessment of what reasonable searches are required and the time and effort involved in reasonably attending to those searches.

68    The task of searching the devices and hard records of some 20 to 30 employees in relation to records produced over a 3 month period is, as a matter of common experience, a task likely to be performed by litigants regularly and without apparent difficulty. I do not accept that the burden that will be imposed on the FWO is anything out of the ordinary. For instance, it seems unlikely to me that the burden that will be imposed on the Minister will be any smaller, yet the Minister has not pressed any claim of oppression and has indicated that she will be in a position to provide the documents called for under the Minister subpoena within 7 days of the hearing.

69    As Gray J said in Master Builders Association at 390, in the absence of evidence to the contrary “it may be assumed safely that a large business entity keeps its records accessible, reasonably indexed, and controlled by efficient staff, and that consequently the burden on it of complying with a subpoena to produce large numbers of documents will be less than that on a smaller business entity, or an individual”. Whilst the FWO is not a business entity, it is a statutory body performing high-order regulatory functions. It may be assumed that the FWO has the capacity to conduct enquires and make searches with diligence and efficiency including by utilizing technological aids to assist it in that task.

70    I do not consider that the effort and expense likely to be involved in the FWO undertaking reasonable searches for documents of the kind called for by the FWO subpoena is likely to be “seriously and unfairly burdensome, prejudicial or damaging”. The balance of the respective interests does not favour the FWO subpoena being set aside for reason of oppression.

71    For all those reasons, other than for limiting compliance with the subpoena in the manner earlier indicated, the application to set aside the FWO subpoena will be dismissed. Mr Lee’s application to set aside the subpoena will also be dismissed.

72    The final matter I need to address is the return date for the each subpoena. The return dates have been previously extended but will require further extension to facilitate the searches that now need to be undertaken. As each of the subpoena recipients other than Mr Lee have indicated that they may make privilege-based objections to the inspection of some of the documents to be produced, there is efficiency both to the Court, the parties and to the subpoena recipients that any process for dealing with such objections align as closely as possible to the process already underway for dealing with similar objections made in discovery by the respondents to the proceeding. The hearing of those objections is currently listed for 22 January 2018.

73    The Minister has indicated that she will be in a position to produce documents by 22 December 2017. Mr De Garis has indicated that he will need some 7 to 14 days after these reasons for judgment are published. Mr Lee, who is away overseas until 6 January 2018, has indicated that he will be in a position to produce documents towards the middle of January 2018. I have already dealt with the indication given by the FWO.

74    In the circumstances, I will extend the return date for the Minister subpoena to 10 am on 5 January 2018, the return dates for the De Garis and Lee subpoenas to 10 am on 11 January 2018 and the return date of the FWO subpoena to 2.15 pm on 16 January 2018.

75    I will also make directions designed to facilitate the hearing on 22 January 2018 of any objections to the inspection of documents.

76    Each subpoena party will have liberty to apply on 2 days written notice to the AWU should the time provided for production prove to be insufficient. If that liberty is exercised, I expect that any application for an extension of time will be supported by an affidavit setting out the reasonable searches identified as being necessary, steps taken to date to make those searches and the reasons why the time granted has proven to be insufficient. The question of costs of each application will be reserved.

Associate:        

Dated:    20 December 2017