FEDERAL COURT OF AUSTRALIA Chevron Australia Pty Ltd v The Maritime Union of Australia [2015] FCA 376 Citation: Chevron Australia Pty Ltd v The Maritime Union of Australia [2015] FCA 376 Parties: CHEVRON AUSTRALIA PTY LTD (ACN 086 197 757) v THE MARITIME UNION OF AUSTRALIA & OTHERS File number: WAD 145 of 2012 Judge: GILMOUR J Date of judgment: 23 April 2015 Catchwords: PRACTICE AND PROCEDURE – application for particular discovery under r 20.21 of the Federal Court Rules 2011 (Cth) – whether compliance with order for particular discovery would be oppressive – application allowed Legislation: Federal Court Rules 2011 (Cth) r 20.21 Fair Work Act 2009 (Cth) s 417 Cases cited: Dennis v Chambers Investment Planners Pty Ltd (2012) 201 FCR 321 John Flower Diddams v Commonwealth Bank of Australia [1998] FCA 497 McIlwain v Ramsey Food Packaging Pty Ltd (2005) 221 ALR 785 Slick v Westpac Banking Corporation (No 2) [2006] FCA 1712 Date of hearing: 23 March 2015 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 31 Counsel for the Applicant: Mr R Dalton Solicitor for the Applicant: Herbert Smith Freehills Counsel for the Respondents/ Cross-Claimants/Second Cross-Respondents: Mr H Borenstein QC with Mr P Rozen Solicitor for the Respondents/Cross-Claimants/Second Cross-Respondents: W.G. McNally Jones Staff Counsel for Cross-Respondent/Second Cross-Claimant: Mr N Burmeister Solicitors for Cross-Respondent/Second Cross-Claimant: K&L Gates IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 145 of 2012 BETWEEN: CHEVRON AUSTRALIA PTY LTD (ACN 086 197 757) Applicant AND: THE MARITIME UNION OF AUSTRALIA & OTHERS Respondent JUDGE: GILMOUR J DATE OF ORDER: 23 april 2015 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. On or before 7 May 2015, the first respondent give discovery of the following categories of documents in its control: (a) Documents relating to any application (formal or informal) to, or lobbying of, anyone (including any politician or government agency) by the first respondent (including its employees, officers or agents) in June 2012 in relation to the RollDock Sun or foreign-crewed vessels. (b) Documents recording the names and positions of the first respondent's National Branch and Western Australian Branch officers as at 1 June 2012 to 1 July 2012 (inclusive). (c) For the period 25 June 2012 to 1 July 2012 (inclusive), the telephone records of: (i) Doug Heath; (ii) the first respondent's WA Branch officers; (iii) the first respondent's National Branch officers; (iv) any of the second to sixteenth respondents; and (v) any other member the first respondent employed by the cross-respondent at the Henderson Australian Marine Complex (AMC). (d) For the period 1 June 2012 to 1 July 2012 (inclusive), emails between the following parties: (i) Doug Heath; (ii) the first respondent's WA Branch officers; (iii) the first respondent's National Branch officers; (iv) any of the second to sixteenth respondents; and (v) any other member of the first respondent employed by the cross-respondent at the Henderson AMC, concerning the operations of the cross-respondent at the Henderson AMC. 2. On or before 29 May 2015, the first respondent provide inspection of the documents discovered pursuant to Order 1. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 145 of 2012 BETWEEN: CHEVRON AUSTRALIA PTY LTD (ACN 086 197 757) Applicant AND: THE MARITIME UNION OF AUSTRALIA & OTHERS Respondent JUDGE: GILMOUR J DATE: 23 April 2015 PLACE: PERTH REASONS FOR JUDGMENT 1 The applicant (Chevron) seeks the following particular discovery pursuant to r 20.21 of the Federal Court Rules 2011 (Cth) as against the first respondent, the Maritime Union of Australia (MUA): 1. On or before 13 April 2015, the First Respondent give discovery of the following categories of documents in its control: (a) Documents relating to any application (formal or informal) to, or lobbying of, anyone (including any politician or government agency) by the First Respondent (including its employees, officers or agents) in June 2012 in relation to the RollDock Sun or foreign-crewed vessels. (b) Documents recording the names and positions of the First Respondent's National Branch and WA Branch officers as at 1 June 2012 to 1 July 2012 (inclusive). (c) For the period 25 June 2012 to 1 July 2012 (inclusive), the telephone records of: (i) Doug Heath; (ii) the First Respondent's WA Branch officers; (iii) the First Respondent's National Branch officers; (iv) any of the Second to Sixteenth Respondents; and (v) any other member the First Respondent employed by the Cross-Respondent at the Henderson AMC. (d) For the period 1 June 2012 to 1 July 2012 (inclusive), emails between the following parties: (i) Doug Heath; (ii) the First Respondent's WA Branch officers; (iii) the First Respondent's National Branch officers; (iv) any of the Second to Sixteenth Respondents; and (v) any other member of the First Respondent employed by the Cross-Respondent at the Henderson AMC, concerning the operations of the Cross-Respondent at the Henderson AMC. 2 Rule 20.21 provides for a separate discovery from the discovery under r 20.14 or r 20.15, being a discovery of a particular document or a particular category of documents. It provides a remedy "where a party is dissatisfied with the extent of discovery made by an opposing party": John Flower Diddams v Commonwealth Bank of Australia [1998] FCA 497 quoted in McIlwain v Ramsey Food Packaging Pty Ltd (2005) 221 ALR 785 at [31]. Justice Barker in Dennis v Chambers Investment Planners Pty Ltd (2012) 201 FCR 321 said at [39] that under this rule the document or category of documents sought "must be relevant, directly or indirectly" and that the Court would need to be satisfied that discovery of the document or category of documents would facilitate the efficient conduct of the proceeding. 3 The MUA, to the extent that it has relevant documents, does not oppose giving discovery of the documents under proposed orders 1(b), 1(c)(i), (ii) and (iv) and 1(d)(i), (ii) and (iv). 4 The application is supported by an affidavit of Mr Rowan Lee Kelly affirmed on 19 March 2015. 5 Chevron, in this proceeding, seeks various relief against the respondents (together the MUA parties) arising from alleged unlawful industrial action which took place on 28 and 29 June 2012 during the construction phase of a Liquefied Natural Gas production facility on Barrow Island (Gorgon Project). The respondents other than the MUA were, at all material times, it is alleged, members of or eligible members of the MUA and employed by Patrick Projects Pty Ltd (Patrick Projects) to undertake maritime cargo handling work on the Gorgon Project. 6 The alleged unlawful industrial action comprised, amongst other things, those employee respondents not performing work as directed by Patrick Projects on 28 and 29 June 2012, in contravention of s 417 of the Fair Work Act 2009 (Cth). 7 The MUA, in its second amended defence pleads, in short, that the action was taken because of legitimate safety concerns concerning, at least, the employee respondents. 8 Chevron says this reason is false and that in fact the action taken was part of a national campaign then being run by the MUA to stop vessels operating at the Gorgon Project and elsewhere from using foreign crews. Patrick Projects, in similar vein, in its defence to cross-claim asserts that the "safety issues" relied upon by the cross-claimants, the MUA parties, were not bona fide safety issues but rather they were being agitated as a result of the cross-claimants' dissatisfaction with the vessel the RollDock Sun (RDS) being crewed by foreign labour. 9 These issues emerge from the pleadings taken together at: (a) paragraphs 3(b)(iv) and 4 of Chevron's Amended Further Particulars of the Statement of Claim; (b) paragraphs 63, 64 and 64A of the MUA's Second Amended Defence; (c) paragraphs 29A(d), 34(d) and 35(b) of Chevron's Second Amended Reply to First Respondent's Second Amended Defence; (d) paragraphs 50-58 of the MUA's Amended Statement of Cross-Claim; (e) paragraphs 45(b), 47(a), 52(c), 56(c) and 58 of Patrick Projects' Defence to Cross-Claim; (f) paragraph 10 of Patrick Projects' Statement of Cross-Claim; and (g) paragraph 31(b) of the MUA's Defence to Patrick Projects' Statement of Cross-Claim. 10 As mentioned, the particular foreign crewed vessel directly involved in the industrial action was the RDS chartered from Schenker Australia Pty Ltd (Schenker). 11 Chevron submits that there are three relevant categories of documents in respect of which the MUA has failed to give discovery. The application is supported by the cross-respondent, Patrick Projects. 12 The relevant categories are said to be: (a) documents relating to the MUA's campaign against, and dissatisfaction with, the use of foreign labour, both generally and on the RDS (Motivation/Campaign Category), encompassed under proposed order 1(a); (b) documents evidencing the identities of various MUA officials (as defined in clause 31 of the MUA's Rules as in force in 2012) during the relevant times (Identity Category), encompassed under proposed order 1(b); and (c) documents evidencing communications involving the MUA's officials and employees and the MUA members employed by Patrick Projects, relevant to the issues raised in the pleadings and in the affidavits in the relevant period (Communications Category), encompassed under proposed orders 1(c) and 1(d). 13 Chevron submits that in relation to the Motivation/Campaign Category, prior to, during and following the period of alleged industrial action, the MUA was organising and otherwise involved in an extensive campaign against Chevron, which campaign included protesting against Chevron "bringing in foreign labour to do work that could and should be done by Australian workers". 14 It submits that part of this campaign included the MUA protesting against Chevron's use of foreign labour on the RDS and making representations to the Department of Infrastructure and Transport regarding the RDS. 15 The MUA submits that the Motivation/Campaign Category is so broad as to impose a significant burden on it, in terms of even conducting a search, given that the category is not confined to the Western Australian branch of the MUA but extends to the union as a national organisation. This is also the case, it submits, because the category is not confined to the RDS vessel but extends to all foreign crew vessels, whoever is the owner, whether they be a party to this proceeding or not. 16 Chevron pointed to a copy of a discovered letter which refers to the MUA making representations to the Department of Infrastructure and Transport concerning the jurisdictional error that it said the Department had committed in issuing permits of the kind to allow the RDS to operate. I will return to this document later. 17 The MUA says that it would have no issue in providing further discovery of documents that contain those representations. In short, the MUA contends that the effort required to provide discovery under this category is disproportionate to the value of anything which may be found. This is so, it submits, because a large number of documents, the subject of a Notice to Admit served by Chevron, record evidence of the MUA's campaign against foreign crewed vessels including by reference to Chevron and Schenker. The MUA served a Notice of Dispute by which it disputes the relevance of what might be described as the "campaign documents" contained in the Notice to Admit. However, it has admitted their authenticity and the truth of the associated facts regarding the MUA's authorship and publication of these documents. 18 It is no secret, the MUA says, that it has run a campaign against foreign crewing and that there are already documents available to demonstrate that. These, for what they may be worth, it says, may be deployed by Chevron in this case in seeking to demonstrate that the MUA's stated reasons for taking industrial action were false and that the action taken was in truth part of the campaign against foreign crewing. 19 The MUA submits that to put it to the trouble of finding further documents will add nothing further to what is known about its attitude and will therefore be oppressive. 20 The letter I referred to earlier from the MUA to Schenker is dated 27 June 2012. In it the MUA, by its Assistant National Secretary, Mr Warren Smith, accuses Schenker of using foreign crewing on the RDS as a "union-busting foray into the offshore oil and gas industry". It then referred, as I said, to representations made to the Department of Infrastructure and Transport and stated that it would continue its campaign for "[its] rightful jobs in the offshore oil and gas industry which [Schenker] are intent on handing over to exploited third world crews on foreign flagged vessels". 21 This letter is dated the day before the commencement of the pleaded industrial action on 28 June 2012. It stated the following: We too express our disappointment at [Schenker's] behaviour in using non-union labour on a foreign flagged and crewed vessel to undermine the jobs of members of our union in the offshore oil and gas industry, many of whom are unemployed at present. . . . The MUA remains of the view that [Schenker] should immediately engage an Australian crew on the Rolldock Sun of which there are many members of the MUA currently available, trained, capable and ready to undertake all responsibilities on the vessel. We remain happy to discuss this matter and reach a resolution to the matter of the [RDS] in order to prevent any escalation of this dispute, which we view as very serious and as an outright attack on MUA members to work in our own offshore oil and gas industry. Consideration 22 I am not persuaded that the discovery sought is too wide by reason that it is directed to the MUA as opposed to merely its Western Australian branch. The letter to Schenker was authored by the MUA's Assistant National Secretary. 23 The MUA did not discover this letter even though its Assistant National Secretary authored it and it relates directly to the MUA's urgent attempts to stop the RDS being operated at the relevant time on the Gorgon Project with a foreign crew. Moreover, the MUA did not discover any documents relating to the representations purportedly made to the Department of Infrastructure and Transport or to any federal government department. 24 The campaign against foreign crewed vessels was a national one and involved representations by the MUA to a federal government department. 25 The issue of the MUA's motivation for the industrial action on 28 and 29 June 2012 is at the core of this dispute. Accordingly, the letter from the MUA to Schenker was directly relevant to the issue of motivation and should have been discovered. 26 Nor am I satisfied that the categories sought are oppressive. Beyond mere contention by senior counsel on behalf of the MUA parties I have no evidence as to what would be required to be done by the MUA to comply with the orders sought: cf the kind of evidence adduced on this question, by way of illustration, in Slick v Westpac Banking Corporation (No 2) [2006] FCA 1712. 27 The discovery sought concerns only the month of June 2012 and concerns the RDS or foreign-crewed vessels. I have not been told by the MUA how many of these there were at that time. It is the kind of information which would be within the MUA's knowledge. This was a significant campaign it was running. Moreover, there is a coincidence in time between the letter from the MUA to Schenker of 27 June 2012 concerning the RDS and the commencement of the industrial action the very next day involving that vessel. I will make the orders sought under proposed order 1(a). I do not regard this category of documents as falling within "train of inquiry" documents and reject this submission by senior counsel for the MUA parties. 28 There was no opposition by the MUA to providing the documents under the Identity Category concerning the names and positions of its National Branch and the Western Australian Branch officers as at 1 June 2012 to 1 July 2012 and I will make the order sought in this respect. 29 As to the Communications Category, I do not consider it as oppressive that the MUA provide discovery of the telephone records of those persons identified in proposed order 1(c). The evidence of Mr Kelly in his affidavit supports the making of this order. This applies too in the case of the emails sought under proposed order 1(d). I do not accept the MUA's submission that the documents sought under 1(d)(v) are not relevant to the issues in the proceeding. These concern emails of any member of the MUA employed by Patrick Projects at the Henderson Australian Marine Complex. 30 I note in this respect, as Mr Kelly deposes in his unchallenged affidavit, that following service by MUA on Chevron of its List of Documents dated 13 March 2013 the MUA agreed to conduct a further search and provide discovery to Chevron of the categories of documents referred to in a letter sent by solicitors Herbert Smith Freehills to solicitors W.G. McNally Jones Staff, dated 28 November 2013. This included: [d]ocuments in connection with communications between the First Respondent's representatives and the Patrick Projects Pty Ltd employees, such as telephone/mobile phone records and text messages. 31 I will make orders 1 and 2 as sought in the Minute of Proposed Orders subject to amending the date in the chapeau to order 1 from 13 April 2015 to 7 May 2015 and the date in order 2 from 27 April 2015 to 29 May 2015. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 23 April 2015