SF ot NOY FOR DIS'TTRIBUTLON IN THE FEDERAL COURT OF AUSTRALTA QUEENSLAND DISTRICT INDUSTRIAL DIVISION BETWEEN : SPENDER J. BRISBANE 1 MAY 1987. ) ) REGISTRY ) QLD. Q13 of 1985 ) QLD. 07 of 1986 ) BERNADETTE CALLAGHAN, DAVID MAPSTONE, KEVIN BIANCHI and CHRISTOPHER WOODS Applicants FEDERATED CLERKS' UNION OF AUSTRALIA First Respondent JOHN PETER MAYNES, TERRENCE W. SULLIVAN, R.J. WASSON, JOAN RIORDAN, HENRY JAMES DARROCH, MARY EVELEEN NELSON, MICHAEL JOHN CASHMAN, MICHAEL JOHN O''SULLIVAN, MICHARL PATRICK BOURKE, JOHN DANIEL SMITH, MONICA ROSE STRANGWARD, VINCENT HIGGINS, BETTY SPEARS, KEITH GLOVER, LESLIE THOMAS HAUFF, MICHAEL JAMES WILKINSON, DOUGLAS FRY, GEOFFREY B. KILMARTIN, JAMES HARDING, PETER VINCENT ABRANS, KAREN ANDREWARTHA, HUGH ARMSTRONG, RALPH DESMOND CLARKE, PHILLIP ANTHONY COLLINS, WANDA DAY, VERONICA JONES, PATRICIA SPENCELEY, GEOFFREY DAVID SWORDS, EDWARD TAMPLIN, PAUL TREGILLIS and DAVID WASLEY Second Respondents REASONS FOR JUDGMENT - FAY 1987 FEDERAL COURT OF AUSTRALIA PRINCIPAL REGISTRY The Federated Clerks' Union of Australia and a number of the second respondents seek leave to appeal from an order made by Gray J. on 26 March 1987 concerning further discovery in proceedings 9.13 of 1985 and Q.7 of 1986. They seek that the operation of the order be stayed pending the determination of that appeal. Those matters involve applications under ss.140 and 141 of the Conciliation and Arbitration Act 1904. In Q.13 of 1985, the rule to show cause was made on 7 November 1985, points of contention filed on behalf of the applicants on 6 March 1986 and on behalf of the respondents for whom Dr. Jessup of counsel appears, (whom I will hereinafter refer to as "the respondents"), were filed on 6 June 1986. The Union amended its points of contention on 4 July 1986. In Q.7 of 1986, the rule to show cause was made on 22 October 1986, the points of contention of the applicants filed on 20 November 1986, and on behalf of the respondents on 2 December 1986. When the matter came on for hearing before Gray J. on 17 March 1987, both rules to show cause were amended by consent. The matters were heard before Gray J. on 17, 18, 19 and 24, 25 and 26 March 1987. The matters have been adjourned for further hearing on 16, 17, 18, and 19 June 1987. The next scheduled sitting of a Full Court of the Federal Court of Australia in Brisbane is the week commencing Monday, 27 duly 1987. On 24 March 1987, the applicants had closed their case. Counsel for the respondents opened his case on 25 March 1987 and called Mr. Wasson, the Assistant National Secretary of the Union. A number 3. of documents were sought to be tendered through Mr. Wasson, which documents apparently had not been discovered. The transcript shows that at that time counsel for the respondents agreed that a list of documents not previously discovered would be prepared and would be made available to counsel for the applicants during the luncheon adjournment on that day and copies of those documents would also be available. After the luncheon adjournment on 25 March, counsel for the applicants obtained a short adjournment to read the material which had been provided during the adjournment and, later that afternoon, he handed to counsel for the respondents a hand-written list containing ten categories of documents which was headed "Further Discovery". Counsel for the applicants sought further discovery in terms of the list which had been prepared by him. That application was opposed in part by counsel for the respondents. After argument, his Honour indicated that he would order further discovery. That order in fact was made on the afternoon of 26 March 1987. The order made by Gray J. on 26 March 1987 was entered on 16 April 1987. It was in these terms:- "The Court orders that:- 1. Within twenty eight (28) days of this day, the respondents, Federated Clerks' Union of Australia, Maynes, Smith, Sullivan, Wasson, Darroch, Higgins, and Bourke file and serve an affidavit, or affidavits stating whether the following documents, or any documents in the following classes are or have been in the possession, custody or power of them or any of them, and if any such document has been, but is not at the time of swearing such affidavit, or affidavits, is not in the possession, custody or power of any of them, when it, he or she parted with the document and what has become of it. (a) (b) (c) (d) (e) (f) th) (2) (4) 2. Draft budgets of the national office of the Federated Clerks Union of Australia (the organisation) for the years 1982 to 1983; 1985 to 1986; 1986 to 1987; Minutes of the Finance Committee of the organisation considering draft budgets from and including, 1982 to the present time; Minutes of Meetings of the National Executive of the organisation in 1984 and 1986; The supplementary financial report for the 1984 meeting of the National Council of the organisation; The Financial report of the organisation for the year ended 30th June, 1982; Documents relating to the constitution and objects of the overseas fund of the organisation, and to payments into and out of that fund from and including 1982 to the present time; Documents relating to the constitution and objects of the international aid and assistance fund of the organisation and to payments into and out of that fund from and including 1982 to the present time; Documents relating to the constitution and operation of the Brisbane annex of the organisation, and to income and expenditure in relation to that annex from its inception to the present time; Documents relating to the items entitled "meetings expenses" in the statements of receipts and payments of the organisation from 1982 to the present time; Documents relating to the identity of investments by or on behalf of the National Council of the organisation, and the financial arrangements and payments in respect of those investments from and including 1982 to the present time. The further hearing of the matters is adjourned until. Tuesday 16th Jume at 10.15 a.m. at Brisbane. Liberty is reserved to any party to apply, on seven days notice in writing to each other party." The Notice of Motion on its face applies to the whole of the order. An affidavit filed by Mr. Patrick James Mullins, a solicitor of the Brisbane agents of the solicitors for the respondents recites:- " The grounds upon which the Respondents to whom the said order was directed wish to appeal therefrom are as follows:- (i) The documents and classes of documents referred to 1n the order do not relate to any question or questions in issue in these proceedings. (ii) It was not open to his Honour under the Rules of Court to order the making of an Affidavit or Affidavits as to documents no more precisely described than as 'relating to' certain general subject matters." On the hearing of the motion, Dr. Jessup for the respondents indicated that leave was sought only in respect of those documents referred to in the order of Mr. Justice Gray in paras. 1(f)-1(j), inclusive. The primary submission on behalf of the respondents is that the classes of documents referred to in that order are not relevant to any question in issue in the proceedings. In addition, affidavit material has been filed by one Teresa Mary Kelleher deposing to the width of inquiry that would be required in respect of those categories of documents and suggesting that to comply with the order of Gray J. would be onerous to the point of oppression. 6. It 18 unnecessary to refer in detail to the nature of the proceedings before his Honour Mr. Justice Gray. In essence, they involve disputes between the National Executive of the Federated Clerks' Union and the Central and Southern Queensland Branch of that Union. One issue concerns the proper method of calculation of sustentation fees payable by that branch to the National Executive. Another issue concerns the validity of Rule 15(1) of the rules of the Union as well as the validity of other rules of the Union. One of the bases of invalidity alleged is that Rule 15(1) is so wide in its terms as to permit payments on unfair bases, and also for payment on other than a basis of uniformity Between branches. The evidence so far given in the matters concerns, amongst many other issues, the complaint of the Central and Southern Queensland Branch that they have been discriminated against financially, and treated unfairly, as a reflection of a differing industrial allegiance to the majority of the National Executive. Further, as a consequence of the fundamental issues in dispute, there are questions concerning the validity of a number of resolutions passed by the National Executive of the Union relating to the Central and Southern Queensland Branch. One resolution which ought specifically to be noted is that calling on the Central and Southern Queensland Branch to pay to the National Executive of the Union the costs of litigation incurred by the Union in litigation to which the Central and Southern Queensland Branch was an opposing party. Another relates to the establishment of a national journal and a determination that it shall be "the sole official journal of the Union". 7. On the qgucstion of whether leave should be granted, on 14 April 1987, a Full Court of the Federal Court of Australia, constituted by Woodward, Wilcox and Ryan JJ., in The Commissioner of Taxation of the Commonwealth of Australia v. Hydrocarbon Products Pty.Ltd., (unreported), was concerned primarily with the jurisdiction of the Federal Court to entertain appeals from interlocutory orders of a State Supreme Court. In respect of the criteria on which leave should be granted, at p.32, the Court said:- "The approach to be taken by an appellate court to whether it should grant leave to appeal from an interlocutory order is reasonably well settled. However, various formulations of the appropriate test have been expressed in different authorities. In Commissioner of Taxation v. Nestle Australia Limited (unreported, 5 November 1986), a Full Court of this Court (Bowen C.J., Lockhart and Sheppard JJ.) adopted the following passage from the joint judgment of Gibbs C.J., Aickin, Wilson and Brennan Jd. in Adam P. Brown Male Fashions Pty.Ltd. v. Philip Morris Inc. (1981) 148 CLR 170, at 177: "Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task. Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties. The opposing view is that such criteria are to be expressed disjunctively ... For ourselves, we believe it to he unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various. We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in In re the Will of F.B. Gilbert (dec.) (1946) 46 S.R.(N.S.W.) 318 at p. 323: 8. '... I am of opinion that, ... there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.' We were referred also to Niemann v. Electronic Industries Ltd. £1978] V.R. 431 where Murphy J., with whom McInerney J. agreed, suggested that for leave to be granted, the order in respect of which it is sought must be seen clearly to be 'attended with sufficient doubt', and, aif wrong, to work substantial injustice. See also B.H.P. Petroleum Pty.Ltd. v. 01] Basins Ltd. £19857 V.R. 756 at 758 and 762." It was suggested by counsel for the applicants that the order of Gray J. was an exercise of discretion, and the caveat of Sir Frederick Jordan, so often applied, ought once more to be heeded. Counsel for the respondents argued that the order of Gray J. was not fundamentally an exercise of discretion, but was simply an erroneous determination of the question of whether the Classes of documents referred to in his order were relevant to issues before him. While there is a large measure of discretion in the question of whether discovery should be ordered, and how 9. wide it should be, I accept that the complaint of the respondents involves essentially a question of law. It is analogous to a ruling by a trial judge on the admissibility of evidence where objection is taken on the ground of relevance. Notwithstanding that conclusion, however, the resolution of the question of whether particular matters are relevant to issues ina trial, is one of the many areas where a trial judge has an advantage that is not possessed by judges on appeal or by a judge to whom an application such as this is brought. It would be quite unrealistic to ignore the fact that this trial has already proceeded quite an extensive way. It is also not urrelevant that, during the course of the trial, a report by an accountant, Mr. Cooper of Cooper, Booth & Associates, was received into evidence without objection by counsel for the respondents, and it dealt in quite specific detail with aspects directly relevant to the five categories of documents in dispute. While I accept the submission that the mere admission of evidence cannot make discoverable that which is not otherwise discoverable, and while I also accept that the failure to object may be as a result of a tactical decision or as a result of mere inadvertence, the canvassing of those issues in the evidence of the applicants without objection by the respondents, lends support to the view reached by his Honour that, involved in the many issues of the litigation, were questions to which the impugned categories of documents were relevant. wae 10. Even if I were persuaded that it is seriously arguable that the categories of documents, discovery of which is resisted, are not relevant to the issues raised in the amended Rules to Show Cause, as refined by the amended Points of Contention of the respective parties, I am of the clear view that it would be quite inappropriate for the hearing of these matters, already protracted, to be further delayed by appeal proceedings on the validity of the width of discovery ordered by the judge who has been intimately concerned with the issues, and on whom the questions of relevance now present before me were put forcefully and in detail and rejected by him. For these reasons, I dismiss the motion for leave to appeal. Touching the suggestion that to comply with the order is very onerous, it is to be noted that the order of Gray J. permitted liberty to apply, and if there is anything in that suggestion, that avenue of relief exists. 1 certify that this and the 4 preceding pages are a true copy of the reasons for judgment her-"" of H.s Honour Mr Justice Cpsrder < wad ruckl ! [</¢ L Associate Dated