ofl IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) No. V. 6 of 1986 ) ) INDUSTRIAL DIVISTON BETWEEN: ~ NORMAN MARTIN and LEWIS CONSTRUCTION COMPANY pry. OTD. 29 MAY, 1986 KEELY J. REASONS FOR JUDGMENT Norman Martin (the prosecutor) laid an information alleging that on 14 February 1986 Lewis Construction Company Pty. Ltd. (the defendant) had dismissed him by reason of the circumstance that he was a member of the Australian Building Construction Employees and Builders Labourers' Federation (the Federation), an organization of employees then yegistered under the Conciliation and Arbitration Act (the Act). The information was laid and filed on 24 February 1986, on which date a summons was issued, containing particulars of the charge. Fe prenwene rt ere ee eee on On 13 May 1986 three subpoenas for the production of documents were issued, at the request of the defendant's solicitors, addresséd to the General Secretary of the Federation, the Secretary of the Victorian Branch of the Federation and the Secretary of the N.S.W. Branch of the Federation. The court was— informed by counsel for the parties and the persons to whom the subpoenas were addressed that those subpoenas were in identical terms. The subpoenas sought the production of a large number of documents which were identified or described in 49 paragraphs in a schedule to each subpoena. Paragraphs 1-41 {both inclusive) identified certain documents and paragraphs 42-49 (both inclusive) described documents by reference to a class. On 15 May 1986 three further subpoenas for the production of documents, addressed in the same way, were issued at the request of the defendant's solicitors. Those subpoenas, which were in identical terms, sought the production of documents described in three paragraphs by reference to a class of documents. It was made clear to the court that those subpoenas were not intended to replace the subpoenas issued on 13 May 1986. By two notices of motion, dated 23 May 1986, the persons to whom the subpoenas issued on 15 May 1986 were addressed sought orders setting aside those subpoenas either wholly or in part. Those notices of motion were supported by an affidavit, sworn 23 May 1986, by Mr. Nowicki, a research SIT Ta ze a 3. officer employed by the Federation. By two notices of motion, dated 27 and 28 May 1986 respectively, the persons to whom the subpoenas issued on 13 May 1986 were addressed sought orders setting aside those subpoenas either wholly or in part. The first of those two notices of motion was supported by an affidavit by Mr. Nowicki, sworn 27 May 1986. In his affidavit, sworn 27 May 1986, Mr. Nowicki referred to the subpoenas issued on 13 May 1986 and said that he believed that copies of all of the documents referred to in paragraphs 1-41 (both inclusive) of the schedule to the subpoenas "are in the possession, custody or control of the Master Builders' Association of Victoria" (the MBAV). He also swore that "... copies of those documents were tendered as exhibits in proceeding number C1852 of 1985 in the Australian Conciliation & Arbitration Commission and in proceedings in the Federal Court numbered V23 of 1981" and referred to the need "to devote the time and effort of its Cthe Federation's] limited staff and resources to the oppressive task of locating such copies of such documents as may be in its possession." Mr. Frank Parry, a solicitor employed by the defendant's solicitors, swore an affidavit on 28 May 1986 in which he stated that he had been "informed by Mr. John Glasson the Director/Industrial Relations of the ... MBAV", and believed that, with two exceptions, copies of the documents referred to in paragraphs 1-41 (both inclusive) "are not in the possession, custody or control of the MBAV" alte, te S oellientent anal antemtatameeraa rho ay - rf " 5 —-. coe a, See ry ee ees wy wee aT wpe a wea peed et ieee weer ee ee ene ow wae ee we. ' 4. and that mot all of the documents had been exhibits in the proceedings referred to in Mr. Nowicki's affidavit. He went on to say: "... it would become onerous for the MBAV or the Defendant to examine the exhibits in the abovementioned proceedings to ascertain which of the said documents numbered 1 to 41 (inclusive) were exhibits in those two sets of proceedings. ~ In the proceedings in the Australian Conciliation and Arbitration Commission there were in excess of 300 exhibits. In the Federal Court proceedings [I believe there were some hundreds of exhibits. To obtain access to these exhibits and then peruse them against the said documents numbered 1 to 41 (inclusive) would involve the Defendant requiring its staff to devote a great deal of time and effort." In my opinion the subpoenas in so far as they relate to the documents referred to in paragraphs 1-41 (both inclusive) are so wide that they are oppressive, having regard to the terms of the paragraphs and to the material in the affidavit of Mr. Nowicki. In this connexion Mr. Parry's reference to the "great deal of time and effort" which would be required of the defendant's staff in order to "obtain access to these exhibits" gives some support to the evidence of Mr. Nowicki as to the oppressive nature of the task involved. It may be added that the relevance of the documents is not apparent. The majority of paragraphs 1-41 refer to documents dated more than five years before the date of the alleged offence (14 February 1986). Of the remaining paragraphs, one does not give any date and only three relate to documents dated 1985 or later and one of those three refers to a document dated March 1986 i.e. after the date of the alleged offence. —r-,- - eH. wey As to the documents referred to in paragraphs 42-49 {both inclusive) Mr. Nowicki said: "6. The task of identifying and locating documents answering the very general description of those referred to in paragraphs 42-49 of the Schedules to the abovementioned Subpoenas would be onerous, time consuming and oppressive as it would necessitate an examination of a great amount of documents collected over five years and in many cases stored in archives and/or various branch offices of the Federation around Australia. Other of such documents may be held by various solicitors in different States acting for the Federation in litigation (other than the present proceedings). To locate such documents would occupy the staff of the Federation for an inordinate and oppressive amount of time. 7. The task of locating and identifying the documents sought in paragraphs 42-49 inclusive of the Schedules to the abovementioned Subpoenas could not be entrusted to secretarial staff but would have to be performed by executive or research officers or legal advisors of the Federation all of whom are heavily involved in preparation for these and other proceedings." There is no evidence to contradict Mr. Nowicki's evidence as to the size and nature of the task involved in complying with this part of the schedule to the subpoenas. In my opinion paragraphs 42-49 (both inclusive) are oppressive. Those paragraphs in the schedule to the subpoenas are very wide in their terms. Paragraphs 43-48 (both inclusive) require not only the production of the Minutes of the meetings referred to but also the production of "other records or recordings of" those meetings. Paragraphs 43-45 (both inclusive) require production of those documents in respect of all meetings during a period of more than 5 years (i.e. since 1 January 1981) of the Federal em cere ona ee ' f yore sae : oe yaaa Wor rn 3 6. Management Committee of the Federation, of the Victorian Branch Management Committee and of the N.S.W. Branch Management Committee. They sought all those "minutes or other records ...relating to Industrial campaigns in which the Federation was involved". It will be noted that these paragraphs of the schedules to the subpoenas require the persons to whom they are addressed to determine whether those minutes and other records relate to "Industrial campaigns in which the Federation was involved". Paragraphs 46-48 (both inclusive) are directed to meetings, held from 1 January 1981 to date, of organizers of the Federation and organizers of the Victorian Branch and organizers of the N.S.W. Branch. It may be noted that, unlike paragraphs 43, 44 and 45 of the schedule, they are not limited to minutes and other records "relating to Industrial campaigns in which the Federation was involved". Further, they require production not only of all "minutes ... or other records or recordings" but also production of all "notes" of those meetings. Paragraph 42 is couched in extremely wide terms and again relates to a period in excess of five years. It may be added that, on its face the relevance of those documents is not apparent. Paragraph 49 is expressed in terms which are on any view too wide. For example, it would seem that they would require the persons to whom they are addressed to produce all 1 aon Se eee eed wa Notes Spe tetra we erty — eens 7. notes and letters, amongst other things, brought into existence since 1 January 1981 (provided that they are in their possession custody or control) "which concern Industrial campaigns conducted by [the Federation] against the defendant either alone or together with other building contractors" - presumably including all letters received from members or employers concerning those unspecified campaigns. I turn to the subpoenas issued on 15 May 1986. In my opinion paragraph 1 of the schedule to those subpoenas is not oppressive except insofar as it requires the production of all "notes" of the meeting.. It is limited to a meeting of the National Council of the Federation held in Adelaide between 10 and 17 November 1985. In my opinion paragraphs 2 and 3 of the schedule are oppressive as being too wide. In his affidavit, sworn 23 May 1986, Mr. Nowicki said:- "3. Further the task of identifying and locating documents answering the description contained in Paragraph 2 and 3 of the Schedule to the abovementioned Subpoenas would be onerous, time consuming and oppressive as it would necessitate an examination of a great amount of documents collected over five years and in many cases stored in archives and/or various Branch Offices of the Federation around Australia. Other of such documents may be held by various solicitors in different States acting for the Federation in litigation (other than the present proceedings). To locate such documents would occupy the staff of the Federation for an inordinant (sic) and oppressive amount of time. 4. Furthermore insofar as identifying and locating the documents answering the description of those referred to in paragraph 3(a) of the Schedule to the abovementioned Subpoena I am informed and poten POLS tA, wie ee ee eee ake foro eee ee sya bee pe wrens AON pn er es ran ao wk so dias aceneetan cal Aeneas ane 8. verily believe that the Federation has had a policy of pursuing a 35 hour week for its members since the 1960's and further that the Federation has actively pursued such claims since 1981." Again, there — is no evidence to contradict Mr. Nowicki's evidence on that aspect. Paragraph 2 relates to all meetings (aneluding that referred to in paragraph 1 of the schedule) of the National Council of the Federation since January 1981. Paragraph 3 is limited on its face to two subject matters but it is directed to all meetings of the Federal Council, the Federal Management Committee, the N.S.W. Branch Management Committee and the Victorian Branch Management Committee. It is entirely unlimited as to the times when those meetings were held; the material before the court suggests that there may have been meetings within that category approximately 20 years ago. I am not prepared to accede to the suggestion, made by Mr. Les Kaufman, of counsel, on behalf of the defendant, that the court should reduce the width of that part of the subpoena by inserting,in paragraph 3 of the schedule, the date of 7 October 1985 so as to limit it to meetings on or after that date. Accordingly each subpoena issued 13 May 1986 is set aside wholly. As to each subpoena issued 15 May 1986 paragraphs 2 and 3 of the schedule are set aside. The c a = eeaee ie we we a eee eee ee we wwe nN 9. persons to whom the subpoenas issued 15 May 1986 are addressed are directed to comply with paragraph 1 of those subpoenas varied by deleting from it the word "notes". 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