CATCHWORDS Objection to production of a document in a subpoena - confidentiality of communications between parties to an agreement reached in an industrial dispute - public interest in disclosure of the agreement - affected persons within s.88DE - requirements of justice. Trade Practices Act 1974 ss.45D, 45E Conciliation & Arbitration Act 1904 ss.26, 88DC, 88DE. 88DF Lonrho v. Shell Petroleum (1989) 1 WLR 627 Dv. NSPCC (1978) Ac 171 Rogers v. Home Secretary (1973) AC 388 LAWRENCE NOEL GIBBINS & ORS v. THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION & ORS VG NO. 99 of 1985 Smithers J. 7 March 1986 Melbourne. Judge Making urde:: Oo Date of Order: Where Made: VG NO, 99 OF 1985 MARLENE JUNE SIBRINS and Between LAWRENCE NOEL GIBBINS, DALE STEHR BAKER (Applicants) And Smithers J. 7 March 1986 Melbourne. THE AUSTRALASTAN MEAT INDUSTRY EMPLOYEES UNION. ARTHITR BIRD, JOHN KENNETH BRUNT, WALTER F. CURFAN, BERT HUTCHINS, MAUPICE McPIKE, JACK O'TOOLE and THOMAS BORTHWICK AND SONS \AUSTPALASTA) LIMITED (Respondents) MINUTE OF ORDER THE COURT ORDERS THAT: m The objection to production or the document in question in compliance with the subpoena 15 rejected. 2. The objector to pay the costs of this application. NOTE: Settlement and entry or the Rules of the Court. Orders is dealt with in 0.36 of IN THE FEDERAL COURT JF AUSTRALTA VICTOPIA DISTRICT PEGISTPY VG NG. 99 OF 1985 GENERAL DIVISION Between: LAWRENCE NOEL GIBBINS, MARLENE JUNE GIBBINS and DALE STEHR BAKER \Applicants) And: THE AUSTRALASIAN MEAT INDUSTRY EMPLOYERS UNIO?, AFTHUR BIRD, JOHN KENNETH BRUNT, WALTER F. CURRAN, BERT HUTCHINS, MAURICE McPIFE, JACK O'TOOLE and THOMAS BORTHWICK AND SONS (AUSTPALASTIA) LIMITED (Respondents ) Coram: Smithers J, Date: 7 March 19856 REASONS FOR JUDGMENT In this proceeding the Deputy District Registrar of this Court 1ssued a subpoena ror production or documents directed to the Honourable Oeputy Presiaent [Isaac af the Australian Ponciliation and Arbitration Commission (the Deputy President) requiring him toa attend and produce to this court in these proceedings variscus documents "relating to the settlement and/or proposed cesoluticon of an industrial dispute referred fo in the transcript of proceedings dated 11 September 1980 numbered C3831 of 1980 between Thomas Soerthwick and Sons (Australasia) Limited (Borthwick) and the Australasian Meat In fu. c mM Tt '5 MS Employees Union 'the Enion)". The subpoena tormally di ny (Bb iv] ct th peoduction of numérsus documents our there is in yeallty only one document ot which production 1s actualiy sought, namely that embodying an agreement which was made between Borthwick and the Union in settlement of the dispute arter a conciliation proceeding berore the Deputy President had been conducted. The proceeding in which the subpoena was issued 18 an application by the applicants for relief against both Borthwick and the Union for alleged breach of 5.45E of the Trade Practices Act 1974 (the Act). Paras. 18, 19 and 20 of the statement or claim 1s as follows: 15. Borthwicks have been accustomed to acquire livestock ror slaughter at its abattoirs from livestock producers unciluding the third Applicant. Un a date unknown to the third Applicant in September 1980 o¢ thereafter, in contravention of Section 45E of the Act, Borthwicks made a contract or arrangement, or arrived at an understanding, with the rirst Respondent which contract, arrangement or understanding contained a provision that had the purpose of preventing or hindering Borthwicks from acquiring or continuing to acquire livestock from livestock producers including the third Applicant, except subject to a condition as to the manner in which or as to the terms on which those Livestock producers, including the third Applicant, could supply such livestock. PARTICULARS OF THE CONDITION The condition was that livestock delivered to Sorthwicks' abattoirs would onlv be accepted 1f 1t was delivered in the manner or on the terms that .1t was transported to the abattoirs oy livestock carrl1ers, or on trucks, not on tne list. t ra] Borthwicks has given and 12s continuing to give etfect to the aforesaid contract, wd , arrangement or understanding and, unless testrained, will continue to do 30. 20. Each of the Respondents other than the eighth Respondent, va) aided, abetted, counselled, or procured; (b) induced; tc) was Knowingly concerned in, or party to; (da) conspired with others to effect - the contravention as atoresaid by Borthwicks of Section 45E ot the Act. The list referred to was a list referred to in para. 14 of the statement of claim asa list which the respondents compiled and distributed, inter alia, to members ot the Union and to the proprietors of abattoirs. The tirst and second appilcants were named in the list. It appears from the affidavit of the Deputy President, sworn 19 February 1986 that matter C.No.3831 of 1980 came on for hearing before him on 18 August 1980. There were subsequent hearings on 26 August 1980, 10 September 1980 and 16 September 1980. During the course of these hearings 1t was decided on several occasions to conduct the conciliation process in private conterence. These private conterences were conducted pursuant to the provisions of s$.26 of the Conciliation and Arbitration Act 1904, and were treated by the Deputy President as part of the rormal process of conciliation required by ss.88DC and 88DF of the Act. During the course of these conciliation conferences the Deputy President carried out his responsibilities under the Act im an attemer to resolve the dispute between the parties. In the end the conciliation process proved successful, and the parcies were able to resolve their differances without the dispute hnaving to be litigated in the Federal Court. The agreement reached between the parties eventually formed the basis for the settlement of the dispute. The Deputy President was asked by each of the parties to siqnify his consent to this agreement, and he did so. He was also asked by each of the parties to ensure that the terms of the agreement remained cenfidential to the parties and himself, and he gave that undertaking in line with the common practice of and the discretion available to the Commission. The Deputy President retained a ccpy of the agreement and placed it in a sealed envelope which he placed to the Registrar s file. Thece is filed also on behalf of the Deputy President an affidavit by The Honourable Mr. Ralph Willis the Minister of State for Employment and Industrial Relations of the Commonwealth or Australia, which I interpret as supporting the view that there 1s a public interest in respect being given to the confidentiality of communications between parties to an industrial dispute which are made on a confidential basis ina conciliation process. After he was served with the said subpoena the Deputy Fresident caused the sealed envlope together with its contents to be removed from the Registrar s file and restored to his custody. or In the lien of document3 rientified in the affidavit of documents filed in this proceeding on behalf of the first to seventh respondents item 6O thereor 1s described as "Transcript or Proceedings C. No. 3821 of 1980 and copy memo or Isaac D. P., September 11, 1980". Produced for inspection, apparently as the "memo" referred to, 18s a document in the tollowing terms: 1. It us accepted that for many and varied reasons put by the union and for valid commercial reasons, the company teels it necessary, if things are to become normal at 1ts Brooklyn and Portland works, that for industrial relations reasons those people known to the company, not be invited or engaged to come to the works, nor will the company, or any of its agents, require members of the union to attend those known persons. 2. The company agrees to give work to M. Pye and Dd. Quayle, providing their rates are competitive. 3. It is accepted that perscns other than the parties who have involved themselves in the process orf conciliation over this matter should respect the need not to cause further provocation, Therefore, tor valid commercial reasons, the company accepts the tact that should stock carriers not recognise the union's picket lines over live sheep, then the company will accept the fact that these persons are not accepting the spirit of conciliation and will see these persons as an antagonistic rfactor to a continuing resolution ot the industrial relations problem and will not invite or engage such people to come on to the works, or require the members of the union to be involved with such people. Should any persons shown by proof to be involved in dealing with the people known to the company covered by this resolution in collusion to defeat the spirit of this resolution, then for valid commercial reasons they will join those people whom the company does not invite or engage to come on the works, nor will the company, or any of 1ts agents require members or the union to attend Such persons. 4. The settlement shall operate for no less than 12 months. The company, Tor reasons of its own, may want to discuss the settlement. This does not imply any commitment by the union in this matter. "th It 13 agreed in the terms of this settlement that the company will withdraw its current writ under section 45D of the Act, and that the company agrees that 1 will not support or encourage any action against the union or its officers or members in relation to the Trade Practices Act or any other Act that may be appiicable, e1rther by itself, or by its subsidiary, or other persons or groups in relation ta the matters the subject of this resolution. tony The member3 of the union will be paid for al hour stopwork meeting on the iSth September, 1980. it 1s put by the applicants that the inference to be drawn from the foregoing, 1s that the contents of this memorandum were carried into the settlement agreement which was reduced to writing and given to the Deputy President, and I accept this. On behalf of the Deputy President, Mr. Uren 9.C. argued that the requirements of public interest in the non-production of the document containing the terms of settlement of the andustrial dispute C. No. 7831 of 1980 were so weighty that the court should refrain from requiring him to produce 1t for the purpose of the current proceedings in this Court between the applicants and Borthwick and the Union. The dispute between Borthwick and the Union before the Deputy President 1n September 1980 had its genesis in an application in this court, proceeding VG No. 75 of 1980 by ~t Borthwick against tne Unicn seekiny an injunetion uncer: 3.80 of the Teade Practices Act 1974 against the Union and others restraining the union and those others from engaging in conduct alleged to be 1n contravention of s.45D of the Trade Practices Act and in conduct in contravention of s.45E of that Act which, inter alia, hindered the applicant Gibbins and other specified carriers in supplying transport or carrier service to Borthwick or other persons using those services. It as provided by s.88DC of the Conciliation & Arbitration Act that whare the Conciliation and Arbitration Commission 1s notified of the making to the Federal Court of an application for an injunction sucn as that sought in proceedings VG No. 75 of 1980, the Commission 1S empowered to settle "that dispute" by conciliation. The Commission having been s0 notified the Deputy President entered upon the conduct ert conciiiation proceedings in respecc thereot. In tne end the conciliation process proved successtrul. Present at those proceedings were Borthwick and the Union only. Section 88DE(1) of the Act provides that the parties to a proceeding in relation to a dispute before the Commission arising in the circumstances described above, are, where the dispute relates to conduct in relation to the supply ot services 'to or the acquisition of services from a person, rererred to in s.88DE(1)(d) as an "atfected person", inter alia, that person. The applicants were atfected persons as 50 indicated. Tt 18 provided by s.38DE(3) of the Act that' the GSegistras shall give notice of a proceedings before the Commission in relation to a dispute subject to this kind of conezrliation process to avery person who 18 an arfected person in relatzon to the proceeding. However, 1 appears that neither of the applicants. Lawrence Noel Gibbins or Marlene June Gibbins were notified of the conciliation worocess before the Deputy President. On 11 September 1980 a statement was made by the Deputy President in the proceedings as rollows: "Tt would appear Irom private discussions with the parties, that both of the parties have shown a genuine desire to settle the problem that confronts them. The parties have involved themselves in the task of reaching a settlement and should be assisted in that aim. The company, because ofr the problems that it had, sought resolution by an application under the Trade Practices Act, Section 45 D, but notified the President of the Conciliation and Arbitration Commission under Section 388 D B of the Conciliation and Arbitration Act of their action and sought conciliation by a Presidential member or this Commission. The Union's position was that it was unable to participate ain the conciliation process while the Trade Practices proceedings remained active. I recommend for industrial relations reasons that the application under the Trade Practices Act be withdrawn. I. have privately been informed of the proposed resolution fo the problem and am prepared to say to the parties that they should each work towards having this resolution carried out. Having regard to the complexity of the problem confronting the parties Tam prepared to say that what has been reported fo me as resolution of the dispute could only be regarded as proper in the circumstances and I recommend it. I should note that the drivers who are involved in this matter have neither appeared nor shown any interest in the proceedings before me. However, I would hope that persons who may not benefit by w this resolution and desire to io 30 would be able fo put themselves into a position where their differences were resolved with the employees at Portland consistent with the resolution of the dispute and that this should happen as soon as practical." The public interest on which the case for the Deputy President 1s pul is that: ",.. it as in the public interest to ensure that parties to industrial disputes can engage in conciliation with the assistance of a memper of the Commission, secure in the knowledge that matters communicated between them, in confidence, as part ot the process ot conciliation, will remain contidential, unless the parties consent toa their being divulged. In particular, parties must be able to negotiate freely, without the constraints imposed by the concern that another party might, at some future time, obtain access to documents recording what was said in the course of those negotiations. The disclosure of what transpired during a private conterence conducted as part of the formal conciliation process, without the consent of the parties, and in breach oF an undertaking given by the member of the commission to whom the industrial dispute had been referred, would in my view ser1rously impair the efficacy ot such proceedings 1n promoting the objectives of the Act as defined in section 2." It may be that every point made in this statement of the case should be accepted. But even so, it would not, to my mind necessarily follow that such confidential communications, albeit written ones, would in all circumstances be immune from production in civil litigatiron in which they were relevant. But the issue in this application does not relate to confidential communications leading tc agreement but to an agreement reached after such communications had taken place and from the perception of the parties as to their best interests in the situation atfecting them. I ebserve also that neither the Deputy President nor the Minister state specifically that 16 1s their view that an agreement arrived at by conciliation has some special immunity resting on public policy. As to that agreement it is clear that its status is not affected by the fact that before 1t was made the parties may have made conridential communications to each other or to other persons. Its status is that of an agreement between a business entity and a Union acting on behalf of its members as to the persons with whom the business entity would carry on certain of 1ts operations. There is nothing confidential, in the sense, relevant to the production of the agreement in the ordinary course of litigation, about that. And in this case the claim of confidentiality against the applicants sits most awkwardly. But for the fact that Mr. and Mrs. Gibbins were not notified of the proceeding they would have been entitled to be present at the conciliation proceeding and to participate un it ana any negotiations designed to settle the dispute. They would have been entitled to know the terms of the proposed resolution of the proceeding and to make representations to the conciliator with respect thereto. Inevitably, the terms of the proposed resolution would be made known to them. And of course the applicant, Baker, was an affected person within the meaning of s.88DE(1) of the Conciliation and Arbitration Act. He was not present at the conciliation proceeding and it does not appear whether or not i-+ be he knew they were being conducted. He was an affected person because the dispute related to conduct in relation to supply or goods by him to Borthwick. It is in relation to Borthwick's alleged refusal to accept stock from him, save subject to the condition that 1t 1s not transported by the applicants Gibbins, that application VG No. 99 of 1985 1s brought. In the light of s3.88DE it is impossible to sustain a suggestion that as against the applicants there 1s any public policy which excludes them from knowing whether or not an aqreement along the lines ot the document No. 60 produced by the Union was reached and what it was. In relation to agreements and awards between employers and employees under the Conciliation and Arbitration Act, the whole act cries out for the fullest disclosure to persons affected thereby. No provision in the Act suggesting that agreements made between persons, as to their industrial conduct, arrived at by means of procedure provided by the Act are secret, was submitted to me. It is true that the conciliation in this case indicated to Borthwick and the Union that the Deputy President would regard the agreement as confidential. But even he recognized that there were persons who might "not benefit by this resolution". Apparently this 1s a reference to persons with whom under the "resolution" Borthwick were not to do business unless they conformed to certain conditions "approved by the employees at Portland consistent with the resolution ar the dispute", For this to happen they would have to be given knowledge of the resolution. Thece could, as a matter of business practicality, pe no concealment of an agreement by Borthwick not to deal with certain farmers or carriers save under the conditions of the resolution, especially if those carriers were persons who had defied a picket line and it was for that reason that they were not dealt with. The notion that public policy could require secrecy as to the terms of the document in question 1s quite misconceived. The acceptance ot the document by the Deputy President on the undertaking or understanding that 1t would be regarded and treated by him as confidential does not raise any issue of public policy. Such an undertaking or understanding was not to be treated as operating or intended to operate to defeat or as having the erfect of defeating the requirements ot justice where the aunterests of citizens were involved in litigation according to law. Mr. Uren pressed upon the Court the principles applied in Lonrho v. Shell Petroleum £1980] 1 WLR 627; Dv. NSPCC £19783 AC 171 and Rogers v. Home Secretary £19731 Ac 388. In accordance with those principles, despite the interests of justice, the public interest may according to clrcumstances require that there be non-disclosure of contidential information or documents. However, the clkcumstances or this case are far removed from those dealt with in these authorities. In Lonrho's Case (supra) the court took the view that Ehe public interest in aummunity for the relevant document oukweighed the general public interest in the administration or justice. The ground was that 1mmunity was essential to promote confidentiality necessary to encourage persons to give evidence to an official inquiry on a matter of great national importance. In Dv. NSPCC (supra? the information sought to be withheld was the identity of an informant who complained of the 11ll-treatment of a child to the National Society for the Prevention of Cruelty to Children. The case fell within the well known policy of withholding the disclosure of identity of anformants. In Rogers Case isupra) loss of immunity would have tended to hamper the authority charged with the issuing of licences to conduct gaming establishments. I[t was held to be 30 important that the authority should receive confidential information as to the character of applicants for licences that the public interest in ensuring that licences were granted only to proper persons outweighed the general public interest in the administration of justice. Whatever may be said on the basis of these three decisions, with reference to the confidential communications which took place before the settlement agreement was reached between the Union and Borthwick, they say nothing about the agreement itself. The objection to production of the document in question in compliance vith the subpoena must be cejected and with costs against the objector. I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of the Honourable Me. Justice Smithers. [Gurowle Associate Dated: J Marc \AKG