The Master Builders Association v. The Plumbers & Gasfitters Employees Union of Australia [1987] FCA 243

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N.S.W. No. 7 of 1987

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INDUSTRIAL DIVISION

THE MASTER BUILDERS ASSOCIATION

OF NEW SOUTH WALES Applicant

and

THE PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA Respondent

MINUTES OF ORDER

COURT : Gray Jd. DATE + gth May 1987 PLACE : Melbourne

THE COURT ORDERS THAT:

The subpoena directed to the respondent, issued on

6th March 1987, is set aside.

(NOTE: Settlement and entry of orders is dealt with by 0.36 of

the Federal Court Rules.)

IN COURT OF _ AUS IA NEW SOUTH WALES DISTRICT REGISTRY

INDUSTRIAL DIVISION

N.S.W. No. 7 of 1987

THE MASTER BUILDERS ASSOCIATION OF NEW SOUTH WALES Applicant

and

THE PLUMBERS AND GASFITTERS EMPLOYEES'

UNION OF AUSTRALIA Respondent

COURT: Gray J.

DATE: 8th May 1987 PLACE: Melbourne

R ONS FOR JUDGMENT

This proceeding was commenced on 23rd January 1987. The applicant alleges that the respondent has imposed a ban or bans on the performance of work on various building sites in New South Wales, and has thereby committed a breach or breaches of The Plumbing Industry (New South Wales) Award 1983. The application

seeks the imposition of penalties on the respondent, pursuant to

8.119 of the Conciliation and Arbitration Act 1904 ('the Act').

On 6th March 1987, the applicant caused to be issued a subpoena for the production of documents. Although in terms, the

subpoena is directed to "The Proper Officer, The Plumbers and

Gasfitters Employees' Union of Australia", it has been agreed expressly between the parties that I should treat the subpoena as being one directed to the respondent, and not as being one directed to any natural person. Compare the approach taken by Wilcox J. in Concrete Constructions Pty. Ltd. v. The Plumbers and Gasfitters Employees' Union of Australia (Federal Court of Australia, 13th March 1987, not yet reported) at pp.33-37. In other words, the subpoena calls upon the respondent itself to produce to the Court the documents described in it. On 20th March 1987, the respondent filed a notice of motion, seeking an order that the subpoena be set aside, or alternatively an order that the respondent be excused from the production of documents in answer to the subpoena. This notice of motion was supported by an affidavit deposing to the fact that the respondent is an organization of employees, registered pursuant to the Act, to the issue of the subpoena, and to the fact that the proceeding is a civil proceeding for a penalty. On 23rd April 1987, Mr. Kenzie Q.C., with Mr. Kimber of counsel, appeared for the respondent, to move the Court. Mr. Camilleri and Mr. Street of counsel appeared for the applicant, to contend that the respondent should be