FEDERAL COURT OF AUSTRALIA

Construction Forestry Maritime Mining and Energy Union v McConnell Dowell Constructors (Aust) Pty Ltd [2019] FCA 1376

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application of the tenth to twelfth Respondents dated 19 July 2019 be dismissed.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

Introduction

1    By an interlocutory application dated 19 July 2019, the tenth to twelfth respondents seek an order that the applicant (the CFMMEU) produce a recording of a conversation, and any transcript of a recording of a conversation, that they contend is “mentioned” in a pleading.

2    The critical question – whether a document is “mentioned” in a pleading – arises in circumstances where it is not identified in terms, but where the tenth to twelfth respondents contend that on the face of the pleading the inference must be drawn that it exists, and that it was relied on for the purposes of preparing the pleading. They submit that although the CFMMEU’s pleaded particulars do not mention in terms any recording of a conversation or any transcript of it, the precision and length of the conversation alleged in the particulars of the claim mean that the irresistible inference to be drawn is that such a recording or transcript must exist, such that the pleading makes a “direct allusion” to the recording or transcript or incorporates it by reference to its contents. In those circumstances, the tenth to twelfth respondents contend that the relevant rule of court requires the CFMMEU to produce any such recording or transcript.

3    In my view, for reasons that I shall briefly set out below, the application for production should be dismissed.

The facts

4    In its Amended Statement of Claim, the CFMMEU alleges that on the morning of 14 March 2019, Mr Tzimas entered a building site at Laverton in Victoria and exercised a right to investigate suspected breaches of the Occupational Health and Safety Act 2004 (Vic) (the OHS Act). McConnell Dowell, the head construction contractor, disputed this asserted right and called the police. The tenth respondent, Senior Constable Yeomans, and the eleventh and twelfth respondents (Constable Thomas and Constable Zoltowski respectively), were the police officers who attended the call out.

5    At [99] of the ASOC, the CFMMEU alleges:

Mr Tzimas then spoke with police officers including Senior Constable Yeomans, Constable Thomas and Constable Zoltowski about his entry rights under the OHS Act, during which conversation, Senior Constable Yeomans informed Mr Tzimas that:

(a)    he and other officials could make a request to attend the site, say that they were there and serve a notice;

  (b)    McConnell Dowell then had a right to refuse that request;

  (c)    she understood he did not have any right to be on the site;

  (d)    Mr Tzimas was trespassing;

  (e)    Mr Tzimas had to wait for WorkSafe before he could gain any further access;

(f)    Mr Tzimas was not to proceed any further than where he was because he was trespassing (the Right to Refuse Entry Representation).

6    The Right to Refuse Entry Representation founds allegations of the following contraventions of the Fair Work Act made by the CFMMEU:

(a)    Yeomans contravened s 503 of the Fair Work Act 2009 (Cth) (the FW Act), which prohibits misrepresentations about things authorised by Part 3-4 of the FW Act;

(b)    Yeomans contravened s 502 of the FW Act, which relates to hindering or obstructing a person who holds an entry permit; and

(c)    Zoltowski and Thomas were persons involved in Yeomans’ contravention of s 502, and thus by operation of s 550 of the FW Act, have themselves contravened s 502 of the FW Act.

7    On 4 June 2019, the solicitors for the tenth to thirteenth respondents served a request for further and better particulars, [3] of which sought particulars of [99] of the ASOC (the Request) in the following terms:

Give particulars of the entire conversation between Mr Tzimas and police officers including Senior Constable Yeomans, Constable Thomas and Constable Zoltowski, including which persons spoke during the conversation, what they said and the order in which they said it.

8    By letter dated 25 June 2019, the CFMMEU’s solicitors provided particulars in response to the Request (the Particulars). The letter relevantly provides, and the Particulars are, as follows:

We refer to your request for further and better particulars served 4 June 2019 in the above matter. For convenience, we have adopted as headings the paragraph numbers which you have used. We respond as follows:

…

Paragraph 99

5.    This paragraph conforms to r 16.04 of the Federal Court Rules 2011 (Cth) (FCRs).

6.    In any event, we note that the relevant aspects of the conversation containing the matters relied on was in the following terms:

SC Yeomans:    So while you wait for WorkSafe, my understanding is that you have to be outside the gate until they, WorkSafe, come.

Tzimas:    There’s nothing written to say that you have to be inside or outside the gate. If they’ve got a dispute like they were dispute out arguments yesterday, we waited outside the gate. If they‘ve got a dispute like they were disputing our arguments yesterday, we waited inside the site and WorkSafe attended inside the site. We didn’t have to leave site and wait for WorkSafe in the interim. So there’s nothing written down in law or in practice to say that the minute WorkSafe is contacted I need to leave site and wait for them to attend.

SC Yeomans:    So you’re not given - you’re not given access to here, you’ve been refused access here.

Tzimas:        Yeah.

SC Yeomans:    To my understanding that’s trespass.

Tzimas:        Is it.

SC Yeomans:    Yeah.

Tzimas:    Well when you’ve got a legal federal permit and followed all the steps according to the Act it actually then becomes them illegally hindering and obstructing an ARREO. So they’re not – they’re refusing to talk to me.

SC Yeomans:    So they’re not obstructing you.

Tzimas:        They are.

SC Yeomans:    You’re following the procedure of contacting WorkSafe which you’ve said you’ve done. And until they come in terms of your right being here, my understanding is that you don’t have any.

…

SC Yeomans:    Yeah so it might be a delay of maybe an hour or two until WorkSafe get here.

Tzimas:    Yeah, that’s a delay that they’re working unsafely and in that potentially someone dies.

…

SC Yeomans:    But you’ve also got to follow on with the fact that you’re standing on property that you’re not allowed to be on at this moment. Okay that’s all we’re asking. Stand over at the gate, your other mate is standing out there. I don’t understand why you’re in here.

…

SC Yeomans:    Well you’ve got to wait for WorkSafe before you can gain any further access to this area, you’ve said it yourself.

Tzimas:    Yeah but we’ve got a right - so when we attend site usually this is what happens right. When we attend site we present ourselves to management, take all reasonable like steps to make our presence known which we did. Present someone with the ARREO, show ‘em our permit, go through the issues. If they want to hinder and obstruct us then we contact WorkSafe but in the meantime while WorkSafe are getting here we’ve got a right to advise our members that they’re working unsafely.

…

SC Yeomans:    I’ve asked – we’ve asked – we said to you to go step out there until WorkSafe – you can’t proceed with any of what you want to do until WorkSafe arrive.

…

SC Yeomans:    But don’t proceed any further than here all rights.

Tzimas:    Not a problem.

SC Yeomans:    Because at this point you’re trespassing.

Tzimas:        I’m happy to wait here.

9    On 5 July 2019 the solicitors for the tenth to twelfth respondents served a notice to produce on the CFMMEU, requiring it “to produce for inspection the following documents mentioned in paragraph 6 of the further and better particulars dated 25 June 2019 provided in response to the Tenth to Thirteenth Respondents’ request for further and better particulars dated 4 June 2019 (Particulars)”, namely “[t]he full recording of the conversation between Paul Tzimas and Senior Constable Amanda Yeomans on 14 March 2019 (Recording), and any transcriptions of the Recording”.

10    On 11 July 2019, the CFMMEU’s solicitors wrote a letter in response, declining to comply with the notice, contending that there was no requirement to do so, because no such recording or transcript was “mentioned” in the ASOC or in the Particulars.

11    As I understand it, the CFMMEU does not deny the existence of any such recording, or a transcript of it.

The interlocutory application

12    By their interlocutory application, the tenth to twelfth Respondents seek an order under r 20.31(3) of the Federal Court Rules 2011 (Cth) (the Rules) that the CFMMEU produce a recording of a conversation and a transcript of such recording. Alternatively, they seek the same relief under either s 23 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) or r 1.32 of the Rules.

Rule 20.31

13    Rule 20.31(1) of the Rules provides:

Notice to produce document in pleading or affidavit

A party (the first party) may serve on another party (the second party) a notice to produce, in accordance with Form 39, for the inspection of any document mentioned in a pleading or affidavit filed by the second party.

14    In Rubin v Expandable [2008] 1 WLR 1099 at 1108, [24], in dealing with an English rule in relevantly identical terms, Rix LJ said:

The second matter is that, subject to my first comment, the expression “mentioned” is as general as could be. This is not to my mind intended to be a difficult test. The document in question does not have to be relied on, or referred to in any particular way or for any particular purpose, in order to be mentioned. Subject to Mr Lightman’s second point, that the mention of a document within CPR r 31.14 amounts to automatic and absolute waiver of privilege in it, which if correct would give to that rule a most important effect, I do not see why there should be need for a strict approach to a request for inspection of a specific document mentioned in one of the qualifying documents. The general ethos of the CPR is for a more cards on the table approach to litigation. If a party thinks it worthwhile to mention a document in his pleadings, witness statements or affidavits, I do not see why, subject as I say to the question of privilege, the court should put difficulties in the way of inspection. I look upon the mention of a document in pleadings etc as a form of disclosure. The document in question has not been disclosed by list, or at any rate not yet, but it has been disclosed by mention in what, for the purposes of litigation, is another important and formal category of documents. If so, then the party deploying that document by its mention should in principle be prepared to be required to permit its inspection, and the other party should be entitled to its inspection. What in such circumstances is the virtue of coyness?

15    Putting to one side Rix LJ’s optimistic observation that the word “mentioned” was not intended to be pose a difficult question, the task remains to construe it and apply it to the facts of this case, given that the CFMMEU has taken the point.

16    In Dubai Bank Ltd v Galadari (No 2) [1990] 1 WLR 731 at 738-739 Slade LJ equated the similar phrase “reference is made to” in the then applicable English rule with the phrase “direct allusion to”, as follows:

[The plaintiff’s argument] seems to us to involve reading the phrase “reference is made to any document” as including reference by inference. This we do not regard as the natural and ordinary meaning of the phrase. To our minds, the phrase imports the making of a direct allusion to a document or documents. If the plaintiff were correct in its broad submission, this would oblige the court to enter into a process of inference and conjecture …We cannot think that this is what the makers of the rule had in mind.

In our judgment, a mere opinion that, on the balance of probabilities, a transaction referred to in a pleading or affidavit must have been effected by a document, does not give the court jurisdiction to make an order under R.S.C., Ord 24, r 10, unless the pleading or affidavit makes direct allusion to the document or class of document.

17    The Australian cases have also repeated on a number of recent occasions since the judgment of Moore J in King v GIO Holdings Ltd [2001] FCA 1487 (see in particular [20]) that there has to be a direct allusion to a document or documents, and that it is insufficient to refer to a transaction or information, even though it appears almost certain that the transaction must have been effected by, or the information contained in, a document. See Oztech Pty Ltd v Public Trustee of Queensland (No 10) [2016] FCA 970 at [12] per Yates J, cited by Besanko J in Apotex Pty Ltd v ICOS Corporation (No 2) [2017] FCA 589 at [18], and by Burley J in Sanofi-Aventis Deutschland GmbH v Alphapharm Pty Ltd (No 2) [2018] FCA 1630 at [8].

18    The tenth to twelfth respondents submit that the Particulars “are presented in a way that the particularised conversation is necessarily a reference to documentary content – by transcribing a recording and/or another transcription of a recording”. In particular they point to:

(a)    the introductory words of the Particulars, which say that “the relevant aspects of the conversation … was in the following terms”;

(b)    the fact that what follows are word-for-word extracts of a conversation, which cannot be the result of human memory; and

(c)    the fact that at several points, the text quotes the person misspeaking and/or correcting themselves.

19    The tenth to twelfth respondents submit that “the Particulars have been presented by the direct use of the content of a document in the form of an audio or video recording (or a transcription of the recording).” In this way, they submit, the document (or class of document) has been “mentioned” in a pleading within the meaning of that phrase in r 20.31 of the Rules in either of the following senses:

(a)    by incorporation by reference to the contents of the document, in the form of a transcription of the recording (or another transcription of the recording); or

(b)    by a direct allusion to such a document.

20    In light of the authorities, I am unable to accept those submissions.

21    The incorporation by reference point cannot be right, because it seeks to make an end run around the word “mentioned”. As the reasoning of Slade LJ in Dubai Bank Ltd v Galadari (No 2) [1990] 1 WLR 731, referred to above at [16], makes clear, there is no relevant distinction between a document “mentioned” and a document which “reference is made to”.

22    The more difficult point is whether the Particulars make a “direct allusion” to something (a recording or a transcript of it), by impliedly, rather than specifically, mentioning it. Without turning the phrase “direct allusion” into a statutory formula, it is worth noting that the Macquarie Dictionary defines “allusion” relevantly to mean “an incidental mention of something, either directly or by implication”. See Macquarie Dictionary (7th ed, 2017). That, to me, does rather suggest that if an allusion is required to be a direct one, it cannot be brought about by implication or inference, however compelling the implication or inference might be.

23    In those circumstances, in my view, the Particulars do not make a direct allusion to any recording or transcript of it, however likely it is that one or other, or both, exist.

24    The tenth to twelfth respondents also submit that the Court has broad powers under s 23 of the FCA Act and r 1.32 of the Rules to make appropriate orders for proper and efficient case management, including making orders to avoid procedural unfairness. They submit that absent r 20.31, I should make the production order as an appropriate procedural order to avoid the risk of unfairness to them in preparing their defences. I decline to do so. I am not sure what procedural unfairness they have in mind, but in circumstances where it is not necessary to plead to particulars, I do not apprehend any relevant unfairness, at least at this point. See Turner v Bulletin Newspaper Co. Pty Ltd (1974) 131 CLR 69, at 80 (per Barwick CJ, Mason and McTiernan JJ agreeing): “[The plaintiff’s] particulars…are not to be pleaded to: it is, in my opinion, bad pleading to do so. The defendant by not canvassing the particulars does not admit them, nor does he admit their relevance to the establishment of the cause of action or any part of it.” See also Mann v Board of Health (Australian Capital Territory) (1996) 67 FCR 383, at 391, and Note 3 to r 16.41 of the Rules (“A party does not plead to the opposite party’s particulars.”)

Disposition

25    The interlocutory application must therefore be dismissed.

Associate:

Dated:    26 August 2019

SCHEDULE OF PARTIES