FEDERAL COURT OF AUSTRALIA Clubs Australia - Industrial v United Voice [2017] FCA 1598 File number: QUD 355 of 2017 Judge: REEVES J Date of judgment: 21 December 2017 Catchwords: PRACTICE AND PROCEDURE – application for discovery under r 20.11 of the Federal Court Rules 2011 (Cth) – objection by respondents to certain categories of documents sought – where applicants alleged respondents contravened ss 343 and 348 of the Fair Work Act 2009 (Cth) in conducting protests – where applicants sought discovery with respect to two other incidents not alleged to have contravened the Fair Work Act 2009 (Cth) – whether other incidents relevant to any issue raised by the pleadings – whether discovery sought was oppressive Held: application granted Legislation: Fair Work Act 2009 (Cth) Federal Court Rules 2011 (Cth) Date of hearing: 14 December 2017 Registry: Queensland Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 8 Counsel for the Applicants: Mr J Bourke QC Solicitor for the Applicants: Macpherson Kelly Counsel for the Respondents: Ms C Howell Solicitor for the Respondents: Hall Payne Lawyers ORDERS QUD 355 of 2017 BETWEEN: CLUBS AUSTRALIA - INDUSTRIAL First Applicant WYNNUM MANLY LEAGUES CLUB LIMITED Second Applicant REDLANDS SPORTING CLUB INC Third Applicant AND: UNITED VOICE First Respondent SHARRON CADDIE Second Respondent JUDGE: REEVES J DATE OF ORDER: 21 December 2017 THE COURT ORDERS THAT: 1. On or before 16 February 2018, the first respondent give discovery of the documents in Schedule A to this order. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. SCHEDULE A Documents to be discovered by the First Respondent (a) All email communications and other forms of communications (including any attachments) between 1 August 2016 and 31 March 2017 (the Relevant Period) between the First Respondent and its officers, employees or delegates in respect of a "protest" or the attendance by the First Respondent or its members at the following locations on the following dates: i. Southport Sharks Club referred to in paragraph 7(c) of the Further Amended Statement of Claim (FASOC) (Southport Sharks Club) on 5 September 2016; ii. Redlands Sporting Club referred to in paragraph 3(c) of the FASOC (Redlands Sporting Club) on 17 November 2016; iii. Wynnum Manly Leagues Club referred to in paragraph 2(c) of the FASOC (Wynnum Manly Leagues Club) on 19 March 2017; and iv. Burleigh Bears Leagues Club referred to in paragraph 7(d) of the FASOC (Burleigh Bears Leagues Club) in March 2017. (b) All email communications and other forms of communications (including any attachments) during the Relevant Period between the First Respondent and any member or members of the First Respondent in respect of a "protest" or the attendance by the First Respondent or its members at the following locations on the following dates: i. Southport Sharks Club on 5 September 2016; ii. Redlands Sporting Club on 17 November 2016; iii. Wynnum Manly Leagues Club on 19 March 2017; and iv. Burleigh Bears Leagues Club in March 2017. REASONS FOR JUDGMENT REEVES J: 1 With the exception of a small number of documents, the parties to this proceeding have agreed that discovery will facilitate the just resolution of the proceeding as described in r 20.11 of the Federal Court Rules 2011 (Cth) (the Rules). They have therefore agreed that each should provide discovery to the other under r 20.14 of a number of categories of documents. However, United Voice and Ms Caddie, the respondents, have objected to providing four categories of documents to Clubs Australia - Industrial, the first applicant. They are the documents described in items (a)(i) and (a)(iv) and (b)(i) and (b)(iv) in the following list: (a) All email communications and other forms of communications (including any attachments) between 1 August 2016 and 31 March 2017 (the Relevant Period) between the First Respondent and its officers, employees or delegates in respect of a "protest" or the attendance by the First Respondent or its members at the following locations on the following dates: i. Southport Sharks Club referred to in paragraph 7(c) of the Further Amended Statement of Claim (FASOC) (Southport Sharks Club) on 5 September 2016; ii. Redlands Sporting Club referred to in paragraph 3(c) of the FASOC (Redlands Sporting Club) on 17 November 2016; iii. Wynnum Manly Leagues Club referred to in paragraph 2(c) of the FASOC (Wynnum Manly Leagues Club) on 19 March 2017; and iv. Burleigh Bears League (sic) Club referred to in paragraph 7(d) of the FASOC (Burleigh Bears League (sic) Club) in March 2017. (b) All email communications and other forms of communications (including any attachments) during the Relevant Period between the First Respondent and any member or members of the First Respondent in respect of a "protest" or the attendance by the First Respondent or its members at the following locations on the following dates: i. Southport Sharks Club on 5 September 2016; ii. Redlands Sporting Club on 17 November 2016; iii. Wynnum Manly Leagues Club on 19 March 2017; and iv. Burleigh Bears League (sic) Club in March 2017. 2 As can be seen from the above list, the documents to which objection has been taken concern "protests" that occurred at each of the venues mentioned, namely the Southport Sharks Club and the Burleigh Bears Leagues Club. The other two protests identified in the other items of (a) and (b) in this list are the central focus of this proceeding, namely those occurring at the Redlands Sporting Club and the Wynnum Manly Leagues Club. Clubs Australia has alleged that United Voice and Ms Caddie, the Assistant State Secretary of the Queensland Branch of United Voice, contravened ss 343 and 348 of the Fair Work Act 2009 (Cth) (the FWA) by conducting those two protests. The respondents have not objected to providing the discovery sought with respect to those protests. 3 All four of the protests were directed to the issue of weekend penalty rates and whether or not the Clubs concerned would cut those penalty rates for their staff. 4 United Voice and Ms Caddie claim that the two protests at the Southport Sharks Club and the Burleigh Bears Leagues Club are, at the highest, of "peripheral" relevance to the issues raised in this proceeding. They say that those protests were conducted on different days and at different places to those that are the subject of the allegations in Clubs Australia's amended statement of claim (ASOC). They claimed that what occurred at those protests has no bearing on any material facts in this proceeding. Instead, they claim they relate to the evidence by which the applicants hope to prove their case. In those circumstances, they submit that they should not be put to the expense of having to provide the discovery sought. In support they point to clause 10.6 of the Federal Court's Central Practice Note CPN-1. Relevantly, that clause provides that the Court will not approve "expansive or unjustified requests" and identifies a number of circumstances in which an order for discovery may be appropriate. 5 Clubs Australia, however, claims that the material fact to which these documents are relevant is whether, in the terms of ss 343 and 348 of the FWA, Ms Caddie organised, or threatened to organise, the alleged actions at the Redlands Sporting Club and the Wynnum Manly Leagues Club. While they accept that the protest at the Southport Sharks Club and the Burleigh Bears Leagues Club occurred on different days and at different locations, they claim that those two protests were a part of a broader campaign by the respondents to try to stop licenced Clubs in south east Queensland reducing weekend penalty rates for their staff. Their counsel referred to various parts of the ASOC which particularised that campaign. They also referred to the correspondence pleaded in the ASOC which emanated from Mr Bullock, the State Secretary of United Voice, and was directed to the Redlands Sporting Club and Wynnum Manly Leagues Club. In that correspondence, Mr Bullock stated that the position adopted by the Southport Sharks Club was "an unacceptable position" and the Clubs were warned that United Voice would "… be doing whatever we can to encourage you to rethink that position". They also relied on the close proximity in time between the protest at the Wynnum Manly Leagues Club and that at the Burleigh Bears Leagues Club. 6 In my view, the documents sought by the applicants in the four items listed above are directly relevant to an issue raised by the pleadings as described in r 20.14(1)(a) and defined in r 20.14(2) of the Rules. The issue in question is whether Ms Caddie organised the protest actions alleged with respect to the Redlands Sporting Club and Wynnum Manly Leagues Club. Whether those actions were a part of the broader campaign pleaded to have been organised by Ms Caddie, including the protests at the Southport Sharks Club and the Burleigh Bears Leagues Club directed to the matter of weekend penalty rates, is, in my view, relevant to that issue. The applicants have also pleaded correspondence in which Mr Bullock, the Secretary of United Voice, made a direct link between the position taken by the Southport Sharks Club and the two subject Clubs. Finally, I note that the protest at the Burleigh Bears Leagues Club and the Wynnum Manly Leagues Club both occurred in March 2017, so they were relatively close in time. I therefore consider the documents sought with respect to the protests at the Southport Sharks Club and the Burleigh Bears Leagues Club are relevant to the issue whether Ms Caddie organised the protests at the Redlands Sporting Club and Wynnum Manly Leagues Club, as a part of that broader campaign. Whether those documents ultimately assist the applicants to establish that allegation is, of course, something that will have to be determined at trial. 7 As to the faint suggestion from the respondents that the discovery sought is oppressive, I agree with the applicants' counsel that there is nothing before me to support that contention. To the contrary, since the respondents have agreed to discover the documents with respect to the other two protests, it is difficult to see how it could possibly be oppressive to require them to do likewise with respect to the two protests in question, particularly where they both occurred at about the same period of time. 8 I will therefore order that the respondents provide discovery of the documents described in items (a)(i) and (a)(iv) and (b)(i) and (b)(iv) in the above list. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. Associate: Dated: 21 December 2017