CATCHWORDS PRACTICE AND PROCEDURE - subpoena to produce documents - application to set aside - whether oppression - documents in use for other current legal proceedings - whether subpoena seeks discovery against stranger - whether documents sought relevant - whether ulterior motive for subpoena - whether subpoena uncertain or ambiguous - whether recipient can be compelled to make inquiries as to whether particular documents answer description in wt " el owe oa a ™ subpoena. é Conciliation and Arbitration Act, 1904 s.119 THE MASTER BUILDERS ASSOCIATION OF NEW SOUTH WALES and THE FIRE SPRINKLER CONTRACTORS' ASSOCIATION OF AUSTRALIA v THE PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA NSW Nos. 7 and 8 of 1987 Gray J. 23 April 1987 Sydney IN THE FEDEPAL COUPT OF ANSTRALTA NEW SOUTH WALES NICSTRICT PEGISTRY ~e- er H+ INDUSTRIAL DIVISION Between: THE MASTER BUILDERS NEW Nis. 7 and 3 of 1587 ASSOCIATION OF NEW SOUTH WALES and THE FIRE SPRINKLER CONTRACTORS' ASSOCIATION OF AUSTRALIA (Applicants) B J fay THE PLUMBERS AND GASFITTERS EMPLOYEES " UNION OF AUSTPALTIA (Respondent ) Coram: Gray J. Date: 23 April 1987 Place: Sydney REASONS FOR JUDGMENT These proceedings were commenced on 23rd January 1987, by the filing of applications pursuant to s.119 of the Conciliation and Arbitration Act 1904. Each of the applicants and the respondent is an organization registered pursuant to that Act. Each applicant alleges that the respondent 1s guilty cf breaches of an award made under that Act, the breaches alleged being the 1mposition of bans on the performance of certain kinds of work at various building sites im New South Wales. The applicants seek the imposition of penalties for those breaches. Points of claim, and points of defence have been filed and served, as have affidavits. The matter has now been fixed for trial on 18th May 1987. Each of the applicants has been called upon to make, and has made, discovery of documents. On 10th March 1987, the respondent caused to be issued a number of subpoenas to produce documents. In each proceeding there is a subpoena directed to the applicant. In addition, subpoenas have been directed to a number of companies, each of which is alleged to be, or to have been, a contractor or sub-contractor, conducting works on one or more of the sites on which the bans are alleged to have been imposed. The Court has been told that there are some 37 subpoenas. They are identical in form, save for one feature. Each has attached to it a copy of the points of claim filed in the relevant proceeding, which in turn has attached to it a schedule specifying the work alleged to be, or to have been, the subject of a ban at each site to which the proceeding relates, and the dates on which the bans are alleged to have been imposed. In most cases, the bans are alleged to date from 25th September 1986, and to be "continuing". There are differences between the bans alleged in the two different proceedings. Each subpoena requires the production of the documents and things described in the schedule to the subpoena. It is convenient to set out the contents of that schedule: "A, All letters, telegrams, telexes, photographs, memoranda, notes, records, reports, diaries, minutes, leaflets, pamphlets, newspapers, journals,papers, receipts, accounts and all other documentary material in the files of the Company relating to:- 1. Any decision taken by:- (a) The Plumbers and Gasfitters Employees" union of Australia ('the Respondent'); (b) any branch of the Respondent; (c) any officer of the Respondent or any branch thereof; (d) any employee of the Respondent or any branch thereof; or (e) any member of the Respondent. to (a) impliment; (b) maintain; (c) extend; (d) limit or (e) lift any of the alleged bans referred to in the Schedule to the Points of Claim herein a copy of which is annexed hereto. The participation by:- (a) The Respondent; (b) any branch of the Respondent; (c) any officer of the Respondent or any branch thereof; (d) any employee of the Respondent or any branch thereof; or (e) any member of the Respondent in the bans referred to in paragraph l or any of them. Any authorisation given or purportedly given by or on behalf of: (a) The Respondent; (b) any branch of the Respondent; (c) any officer of the Respndent or any branch thereof; (da) any employee of the Respondent or any branch thereof; or (e) any member of the Respondent to any other person or persons in relation to any decisions or conduct identified in paragraphs 1 or 2 above. The existence of the bans referred to in paragraph 1 above or any of then. Any meeting or meetings of members of the Respondent, or the New South Wales branch of the Respondent, held in connection with the mattes identified in paragraph 1 above or any of then. Any meeting or meetings of employees of your company or any company with which your company had a= sub-con- tract held in connection with the matters identified in paragraph 1 above. The service by the Respondent of any log of claims seeking increases in wages and/or improvements in working conditions on your company or any other company with which your company had sub-contract since Ist January, 1986. The:- (a) suspension; or (b) dismissal of any employee of your company or any other company with which your company had a sub-contract as a result of:- (a) The participation by such employees or any of them in any of the bans referred to in paragraph 1 above; (b) the refusal by such employees or any of them to perform work the subject of the said bans; (ce) the refusal by such employees or any of them to lift, limit, or otherwise modify, any such bans. 9. The alleged cost of the said bans or any of the said bans to your company or any other company with which your company had a sub-contract including estimates and estimates of future costs. B. Copies of all documentary material handed or otherwise delivered by your company or any company with which your company had a sub-contract to employees referred to in Paragraph 8 above on or about the time of their suspension or dismissal or prior to the time of their suspension or dismissal and in connection therewith." A number of the recipients of subpoenas desire to apply to set them aside. On 31st March 1987, when the matter first came before me, Mr. Camilleri of counsel who appeared with Mr. Street of counsel, announced his appearance for the two applicants, and for 15 companies to which subpoenas had been addressed. Mr. Holmes of counsel announced his appearance for seven companies to which subpoenas were directed. Mr. Kenzie 0.C. appeared with Mr. Moore of counsel for the respondent. Some discussion took place as to whether all subpoenas had been served, and as to whether those wishing to set them aside had complied with earlier directions as to the filing of notices of motion for that purpose. In the result, the applications of Civil and Civic Pty. Ltd., and White a Industries Limited, t9 set aside a subpoena served oan Pach of them in each af the proceedings, has been dealt with, and at 1s ta those applications that this judgment relates. Mr. Holmes appeared for the companies concerned, and therefore had carriage of the applications. Further argument was heard on ist April, and om 22nd April, when Mr. Kimber of counsel appeared with Mr. Kenzie. Although Mr. Camilleri''s clients have not yet been heard on their own applications to set aside subpoenas addressed to them, Mr. Camilleri has addressed the Court on behalf of the applicants in relation to the applications of Civil and Civic Pty. Ltd. and White Industries Limited. Certain propositions of law have been common = ground. Tt is agreed that a subpoena to produce documents must specify with reasonable particularity the documents to be produced: Commissioner for Railways v. Small (1938) 28 3.R. (N.S.W.) 564, 573, Lucas Industries Ltd. v. Hewitt (1978) 18 A.L.R. 555, 570, and Lane v. Registrar of the Supreme Court of New South Wales (1981) 148 C.U.R. 245, 259. It was also agreed that a subpoena which requires the production of documents "relating to" a particular subject matter does not necessarily infringe the requirement of particularity, even though the recipient of the subpoena may have to search for documents and make decisions as to whether Particular documents do bear a relationship to the subject specified: Lucas at p.570, Spencer Motors Fry. Ltd. v. LNC Industries Ltd. £19823 2 N.S.W.L.R. 921, 929 and Southern Pacific Hotel Services Inc. v. Southern Pacific Hotel Corporation Ltd. £1984] 1 N.S.W.L.R. 710, 719. There was also consensus' that the subpoena must be read sensibly, and with reference to the circumstances known to the recipient: Lucas at p.571. There were, of course, differences as to the application of these Propositions to the particular subpoenas. Before proceeding to those differences, I should deal with some general submissions that were made about the subpoenas in the present case. Mr. Holmes attempted to make out a case that the subpoenas are oppressive, in the sense that compliance with them would involve the making of searches and inquiries that would be unduly burdensome. Naturally, a burden will be placed upon a stranger to litigation who is called upon to produce documents toa court. It 1s in the interests of justice, however, that the parties to litigation should have the means of obtaining documentary evidence that is in the custody of strangers. It is only when the private interests of the stranger can be shown to outweigh the public interest in the doing of justice that the Court will set aside a subpoena on the ground of oppression. What is involved is a balancing of the respective public and private interests: Southern Pacific at pp.719-720. The mere fact that a subpoena is in wide terms, which would cover large numbers of documents, cannot absolve its recipient from compliance. Otherwise, persons in possession of many documents would be more likely to be safe from subpoenas than those with few. Nor can the fact that the recipient of a subpoena is a large business entity, with many places of business, of itself amount to a ground for setting aside a subpoena. Otherwise, large companies could withhold evidence, whilst small companies would be bound to provide it. Indeed, in the absence of evidence to the contrary, it may be assumed safely that a large business entity keeps its records accessible, reasonably indexed, and controlled by efficient staff, and that consequently the burden on it of complying with a subpoena to produce large numbers of documents will be less than that ona smaller business entity, or an individual. Compare Lucas at p.571. In the present case, although Mr. Holmes was permitted to call oral evidence, very little evidence was given as to what would be involved in compliance with the subpoenas. It was conceded by Mr. Kenzie that White Industries Limited operates Australia-wide, is engaged on eighteen building projects, has four offices in four States, and approximately 2,000 employees. Civil and Civic Pty. Ltd. operates Australia-wide, is engaged on over 100 building projects, has eight offices in five States, and employs approximately 2,000 people. Each company has documents, records and files at each of its offices and building sites and various other Places throughout Australia. These concessions, however, do not supply evidence that compliance with its subpoenas would be oppressive for either company. There is a notable lack of evidence of the extent to which records are kept, how they are ordered or collated, whether they are indexed, the likely numbers of documents involved, the personnel required, and the time needed, to search for them, and the costs to the company concerned of these tasks. If the searches and inquiries necessary were likely to entail great labour and expense, it is to be expected that evidence would be given of those matters. It is not to be supposed that either company keeps documents distributed at random throughout its offices, project sites and other places. Rather, I assume that it has systems of storing and retrieving documents, and of communicating between offices, project sites and other places with respect to them. If this is not so, evidence of the true state of affairs could be given. It is worth noting that Mr. Camilleri, on behalf of his clients, expressly disavowed any intention of arguing that compliance with the subpoenas would involve excessively burdensome trouble and expense. For these reasons, I hold that Mr. Holmes has failed to establish a case of oppression. Mr. Holmes also attempted to argue that the subpoenas were objectionable because compliance with them would involve the production of documents which have come into existence, and are in use, for current legal proceedings. There are before the General Division of the Federal Court of Australian pending proceedings against the respondent under s.45D of the Trade Practices Act 1974. Mr. Holmes's clients are applicants in those proceedings, as are a number of other companies. That those proceedings have generated a large quantity of paperwork cannot be doubted. Evidence was given of the quantities of documents in the offices of the solicitors who act for the two companies here concerned, and for other companies, in those proceedings. It was said that 10. the photocopying bill amounts to $20,000, which 1s indicative of the number of documents involved. In part, the objection to the subpoena on this ground was based on the quantity of documents involved. As I have pointed out earlier, however, the number of documents is not decisive. In part the objection was based on the inconvenience arising from being deprived of the documents necessary for the conduct of the other litigation; for the remainder, it was based on the fact that legal professional privilege would be claimed for many, but not all, of the documents involved in the case. There is no authority which suggests that a party can apply to set aside a subpoena to produce documents on the ground that the documents concerned are required in the conduct of other litigation. Such a rule would require too many qualifications, so that it would not enable aé_ée subpoenaed person to commence litigation for the purpose of tying up the documents sought. It seems to me that the proper course 15s to produce the documents in answer to the subpoena and to ask the court for directions which will enable such of them as are to be inspected to be inspected speedily, or by means of copies, and for the rest to be uplifted and used, perhaps with undertakings as to their swift return if required. Similarly, it does not appear that the likelihood of a claim for legal professional privilege in respect of some documents amounts to a ground on which a subpoena can be set aside. The production of the documents to the court does not amount to a breach of the privilege, and objection based on the privilege can be taken if any party applies for leave to inspect the documents in the custody of the court. See li. National Employers' Mutual General Association Ltd v. Waind and Hill (19783 1 N.S.W.L.R. 372. Another general ground on which Mr. Holmes attacked the subpoenas was the contention that they required the two companies, who are strangers to the litigation in these proceedings, to give discovery of documents. Some confusion appears to have arisen out of a passage in the judgment of Jordan CJ in Commissioner for Railways v. Small (1938) 38 S.R. (N.S.W.) 564, 573, where his Honour said: "A subpoena duces tecum ought not to be issued to such a person requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter. It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery. A stranger to the cause ought not to be required to go to trouble and perhaps to expense in ransacking his records and endeavouring to form a judgment as to whether any of his papers throw light on a dispute which is to be litigated upon issues of which he is presumably ignorant :" It is now well established that there 15 a distinction between requiring a stranger to litigation to produce documents relating to a specified subject matter, and requiring such a person to produce documents relating to the issues in a particular proceeding. The latter course involves the person in forming a view as to what issues arise, or may arise, in the proceeding, and then considering whether the various documents are relevant to the issues, and amounts to seeking discovery. The former course is 12. legitimate and does not amount to seeking discovery, provided that the subjects to which the documents must relate are specified with the requisite degree of particularity. See Waind at pp.381-382, Lucas at p.569, Southern Pacific at pp. 717-718 and Greyhound Australia Pty. Ltd. v. Deluxe Couchlines Pty. Ltd. (1986) 67 A.L.R. 93, 97-98. In the present case, the subpoenas do not direct attention to issues in the litigation as such, but to subject matters. True it is, much of the subject matter is described by reference to the bans specified in the schedule to the points of claim, but at no stage is either of the recipients obliged to form any view as to what is or may be in issue in the proceedings. The recipients are not supplied with points of defence or affidavits; their attention is directed to the bans described in the schedule to the points of claim by way of specification of the sites and dates of those bans, and the nature of the work banned. It is as if those details were set out in the subpoenas themselves. It cannot properly be said, therefore, that the recipients of these subpoenas have been called upon to give discovery of documents. Much discussion took place upon the question of the relevance of the documents sought to the issues in the proceedings. In one sense, the stranger who receives a subpoena to produce documents is not concerned with the relevance of those documents to any issue in the proceeding in which the subpoena is issued. The stranger is not called upon to make a decision on the question of relevance, but 13. only to produce the documents specified. On the other hand, it cannot be denied that courts do have regard to relevance to the issues in the proceeding, when asked to set aside subpoenas: Southern Pacific at p.720. The fact that a large number of plainly irrelevant documents is called for may be taken into account on the question of oppression. An attempt to obtain documents which are plainly irrelevant may be evidence of fishing, or of an ulterior motive in seeking the documents, s0 as to use them for some purpose other than the particular litigation. It seems, therefore, that the possible relevance of the documents sought' should be considered, especially where, as here, it is alleged that the party procuring the issue of the subpoenas is fishing, or is seeking documents with a view to using them for an improper purpose. In this case, it was suggested that the respondent was seeking the documents described in sub-paragraph A9 of the schedule to the subpoenas in order to obtain a preview of evidence which might be led of loss and damage in the proceedings under s.45D of the Trade Practices Act 1974. The test of relevance must necessarily be a generous one. In many cases, it is difficult to rule on the relevance of a question asked of a witness at a trial, since the full extent of the issues raised may not become apparent until final addresses. When the trial has not begun, and the contents of the documents sought by the subpoena are unknown, it is even more difficult to decide whether the documents are relevant to the issues. Only in cases of obvious irrelevance should a party be deprived of the right to obtain evidence to 14. further a case or defence at a trial. In the present case, there is no such obvious irrelevance. The argument tended to concentrate on sub-paragraph A9 of the schedule to the subpoena, the submission being that evidence of the cost of the alleged bans could not be relevant to determining whether bans had been imposed by the respondent, and whether, if they have, they amount to award breaches. Even if this submission he correct, and I am by no means certain that it is, 1t does not exclude the real possibility that evidence of cost may be admissible on the question of penalty, in the event that the respondent is found to be in breach of the awards. As things stand at present, it would not be proper to set aside the subpoenas on the ground that they are fishing. Nor is the argument of ulterior motive made out. The only suggestion of an ulterior motive arises from the terms of the subpoenas themselves; it is by way of inference, rather than positive evidence. If the documents sought may be relevant to the issues in these proceedings, the fact that knowledge of their contents may advance the respondent in other proceedings is of no account. Before turning to the specific words of the schedule to the subpoenas, I should deal with one argument advanced by Mr. Kenzie. He said that the subpoenaed companies are really participants in the events which give rise to these proceedings; he pointed to the fact that employees of Civil and Civic Pty. Ltd. have sworn affidavits which have been 15. filed by one of the applicants, and to the involvement of the two subpoenaed companies in the proceedings under s.45D of the Trade Practices Act 1974. There is evidence of some overlap between sites the subject of those proceedings and sites the subject of these. Mr. Kenzie contended that the subpoenaed companies really know what they are being called upon to produce, and that objections taken to the words used in the subpoenas are technical "lawyers' objections", rather than genuine. It may be that the recipient of a subpoena will have an idea that certain documents will fall within it. This core of documents, however, may not be all that the subpoena requires. The recipient is entitled to fair notice of what is demanded, to reasonable specificity, and is not to be required to make difficult decisions about whether the subpoena does, or does not, require documents of certain kinds. Participation in, or knowledge of, the events giving rise to litigation, is not a complete answer to criticism of expressions used in a subpoena. It is on this basis that I approach the arguments as to the specific words used. Nor does it assist Mr. Kenzie's argument to show that some companies have produced documents in response to identical subpoenas. It cannot be known at this stage whether such production amounts to a sufficient compliance with the subpoenas. The main argument put by Mr. Camilleri, anda major argument of Mr. Holmes, was that the subpoenas were uncertain or ambiguous ina number of respects. Perhaps the most important of these arose from the presence of the phrase "in 16. the files of the Company" in the opening words of paragraph A of the schedule. Mr. Kenzie conceded that it was possible to read these words as qualifying three different aspects of paragraph A, namely, all of the words preceding them, only the words "all other documentary material", or all of the words succeeding them. He submitted, however, that the meaning of the opening words is clear if a sensible view is taken of them. This aspect of the matter has troubled me, but after considering the matter carefully overnight, I accept Mr. Kenzie's argument. To read the words "in the files of the Company" as qualifying the succeeding words would be to give the subpoenas a strange meaning. The recipients would be required to ascertain whether they had files which related to any of the subjects listed in the numbered sub-paragraphs, and to produce all of the documents in those files. Such a reading would not, in my view, be a sensible one in the sense referred to by Smithers J., with whom the other two members of the court agreed in Lucas at p.571. To read the words "in the files of the Company" as qualifying only the words "all other documentary material" would be to leave it unclear from what sources the recipients were to procure letters, telegrams, etc., to comply with the subpoenas. Again, in my view this would not be a_ sensible reading. An ordinary person in the position of an informed officer of a company receiving a subpoena in this form would understand that the company was required to produce from its files all documents answering any of the descriptions in the opening words of paragraph A, relating to the subjects listed in the mumbered sub-paragraphs of that paragraph. Some 17. attempt was made to argue that the word "files" was uncertain. I do not think so; I am satisfied that the phrase "the files of the company" would be understood by an ordinary person to mean the records kept by the company, and would not cause distinctions to be drawn on the basis of whether or not a document had been placed within what might be described as a "file". Other words and phrases were seized upon as being potentially susceptible of different meanings, or as being vague and undefined. Mr. Camilleri pointed to "decision" in sub-paragraph Al, "participation" in sub-paragraphs AZ and 28 and "authorization" in sub-paragraph A3. No doubt it might be said that any word in the English language lacks precision, in the sense that debate might take place as to whether a particular event or object falls within its meaning. Words may take their meanings from their contexts. Taken to their logical conclusions, such arguments would rule out the creation of any legal documents, and particularly any subpoenas, since no word could ever be found of such fixed and precise Meaning as to limit perfectly the command or agreement concerned. The legal system is founded on the supposition that words do convey meanings. The words "decision", "participation" and "authorization" do so, and their meanings are reasonably ascertainable in the context of the subpoenas. For instance, the subpoenas do not require documents relating to any "decision" in the abstract, but documents relating to any decision to impliment Csic.], Maintain, extend, limit or lift any of the alleged bans. It oo te 18. would be unwise for me to attempt to give synonyms for the words. Should there be found to be documents as to which views might differ on whether they relate to the requisite decisions, participation and authorisations, the fact that views might differ would no doubt be a powerful factor in Mitigation of any suggestion of contempt of court in failing to produce those documents. It should also be pointed out that the subpoenas do not require the recipients to decide to which of the sub-paragraphs a particular document should be assigned. If a document might be said to relate to a ""decision" to implement a ban, or to "participation" in a ban, it must be produced, without any need to decide whether it relates to one or both of sub-paragraphs Al and 2. In this sense, the way in which the subpoena is expressed assists the recipient to comply with it. A similar proposition meets the argument of Mr. Holmes that the words "officer" and "employee" in sub-paragraphs Al, 2 and 3. are uncertain, and that questions of law may enter into the determination whether a person is an officer or employee. The wording of the subpoenas is such as to require production of the documents relating to decisions, participation, or authorisations of any person who is an officer, employee or member of the respondent or one of its branches, without there being any need to determine into which of these categories a person falls. If there is real doubt as to whether a person falls within any of those 19. contempt in farliny to produce a document T do nok fFhink that it can be relied upon to compel the setting aside of the subpoena. Nor do I think that there 13 substance in the objections made by Mr. Holmes to the word "conduct"™ in sub-paragraph A3, or the presence in sub-paragraph AS, and the absence from sub-paragraph AB of the words "or any of them". One matter raised by both Mr. Camilleri and Mr. Holmes arises from the presence in sub-paragraphs A6, 7 8 and 9 and paragraph B of the words "or any other company with which your company had a sub-contract". In my view, the presence of these words in the subpoenas is a vice. A recipient may have documents which might or might not answer one of the descriptions to which these words relate. In order to ascertain whether the documents do answer that description, 1t might be necessary to make inquiries of a sub-contractor without the inquirer having any power to compel answers to those inquiries. Mr. Kenzie conceded that no-one can be compelled by subpoena to make such inquiries. He sought to justify these words on the basis that a recipient was only bound to answer the subpoena from its own knowledge. In the absence of information from a sub-contractor, however, a recipient would be embarrassed in responding to the subpoena; it would have no relevant knowledge, and therefore no means of complying with the subpoena. I donot think that the recipients should be placed in such a position. Mr. Kenzie submitted that the words "or any other ti ws company with which your cempany had aio sub contract" are severable, and should be severed, 50 as to leave the subpoenas otherwise intact. Mr. Holmes and Mr. Camilleri did mot attempt t9 rebut this arqument. Ip my view, 21t 15 correct. Inciientally, severance of those words overcomes another argument of Mr. Holmes, namely that the words "since lst January, 1986" ir sub-paragraph A7 made that sub-paragraph uncertain, as it was unclear whether they were intended to define the period of service of logs of claims or the period of having sub-contracts. I therefore propose to dismiss the motions of Civil and Civic Pty. Ltd., and White Industries Limited, the subject of their notices of motion on 20 March 1987, and to order those companies to comply with the subpoenas served on them, subject to the deletion of the words "or any other company with which your company had a sub-contract" in sub-paragraphs A6, 7, 8 and 9 and paragraph B. I shall hear counsel as_ to an appropriate date for compliance. , i It eortife ualt tig ani tie IA | ortif - wv a oe preceding pe. ed co. a' true cory ef tne Reacts Tee Cui, oat Lesermofa.. Eeoncuy Mr. Justice GR Melanie evra, ASSec ate 21. Mr. B.J. Camilleri and Mr. N.T. Street for - the Applicants - Matthew Hall Mechanical and Electrical Engineering Pty. Limited ~ J.M. Hargreaves and Son Pty. Limited ~ Thomas Clark and Son Pty. Limited ~ Wildridge and Sinclair Pty. Limited - Bruce and Sowter Pty. Limited - Crawford and Sanuel Pty. Limited - F.R. Coyle Pty. Limited - G.J. Melis Pty. Limited - Wormald International (Australia) Pty. Limited - Environ Mechanical Services Pty. Limited - Fire Fighting Sprinkler Services Pty. Limited - Brown and Moodie Pty. Limited - Randwick Plumbing Pty. Limited Instructing Solicitors : Cutler, Hughes and Harris - Jennings Construction Limited _ Barclay Bros. Pty. Lamited Instructing Solicitors : Collin Biggers and Paisley Mr. M.F. Holmes for ~ Leaghton Contractors Pty. Limited - Sabemo Pty. Limited Instructing Solicitors : Ailen Allen and Hemsley - White Industries Limited - Civil and Civic Limited Instructing Solicitors : Freehill, Hollingdale and Page - Concrete Constructions Pty. Limited - Concrete Constructions (New South Wales) Pty. Limited - John Holland Constructions Pty. Limited Instructing Solicitors: Westgarth Baldick Mr. R.C. Kenzie Q.C., Mr. M. Moore and Mr. M. Kimber for the Respondent Instructing Solicitors : R.L. Whyburn and Associates