ORDER PURSUANT TO S.66

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2022 WAIRC 00795

DELIVERED : Wednesday, 23 November 2022

FILE NO. : PRES 10 OF 2022

Applicant

AND

The Australian Nursing Federation, Industrial Union of Workers Perth

First Respondent

AND

The Returning Officer, Western Australian Electoral Commission

Second Respondent

AND

The Registrar, Western Australian Industrial Relations Commission

Third Respondent

Catchwords : Industrial Law (WA) - Application under section 66 -  Interlocutory orders and directions  - Principles applicable to discovery and inspection - Membership records of first respondent - Whether discovery and inspection would be just - Orders issued

Legislation : Industrial Arbitration (Union Elections) Regulations 1980 (WA) reg 12

Industrial Relations Act 1979 (WA) s 7, s 63, s 63(7), s 66, s 66(1)(a), s 66(2)(e)

Industrial Relations Commission Regulations 2005 (WA) reg 14, reg 59, reg 59(2)

Result : Order issued

Representation:

Counsel:

Applicant  : Mr A Illich of counsel

First Respondent  : Ms B Burke of counsel

Second Respondent: Mr M McIlwaine of counsel

Third Respondent  : Mr J Carroll of counsel

Solicitors:

Applicant  : Eureka Lawyers

First Respondent  : ANF Legal Services

Second Respondent: State Solicitor’s Office

Third Respondent  : State Solicitor’s Office

Case(s) referred to in reasons:

ALHMWU v Burswood Resort (Management) Ltd (1995) 75 WAIG 1801

Ellis v The Grand Lodge of WA of Antient and Free Accepted Masons Incorporated & Others (1999) 79 WAIG 1723

Hearne v Street (2008) 235 CLR 125

Magellan Petroleum Australia Ltd v Sargasco Armadeus Pty Ltd [1994] 2 QB R 37

Power Infrastructure Pty Ltd v Downer EDI Engineering Power Pty Ltd (No.3) [2011] FCA 539

R v Associated Northern Collieries (1910) 11 CLR 738

WA Builders’ Labourers’ and Plasterers Union of Workers v Kierath and Another (unreported No.2205 of 1994 Supreme Court of Western Australia 3 February 1995)

Reasons for Decision

The application

1         The substantive application before the Commission is made under s 66 of the Industrial Relations Act 1979 (WA). I am satisfied that the applicant, as a member of the first respondent, has standing to bring these proceedings under s 66(1)(a) of the Act. The applicant was an unsuccessful candidate for the position of Secretary of the first respondent, in recently held elections for office holders. The applicant complains that there were irregularities in the conduct of the election in accordance with ss 7 and 66(2)(e) of the Act, and seeks an enquiry.

2         Two grounds are advanced in support of the applicant’s substantive application. First, in summary, it is contended that given the timeframe within which the second respondent conducted the election, there was insufficient time for members of the first respondent, especially those living in regional and remote areas of the State, to return their ballots by the closing date of the election, being 17 October 2022. Second, there are various allegations advanced by the applicant that there were discrepancies between the roll of voters for the election and the first respondent’s membership records. It is contended that these discrepancies materially affected the election outcome, by preventing or hindering the full and free recording of votes and the correct ascertainment or declaration of the results of the election.

3         As is usual practice, the application was listed before me for a directions hearing on Friday, 18 November 2022. Prior to the directions hearing, the applicant filed and served minutes of proposed directions dealing with matters including service of copies of the application, discovery and inspection, and the filing of affidavit evidence and written submissions. At the directions hearing, the proposed directions were generally uncontroversial as between the applicant and the second and third respondents, save in relation to the third respondent, who contended that her status be changed to that of an intervener. It was submitted that the Registrar’s role under the Act was to facilitate, rather than to conduct, the election, and it would not be appropriate for her to be a protagonist in the proceedings. Furthermore, it was proposed that any discovery given by the Registrar be informal at this stage.

4         The only other issue in controversy between the applicant and the second and third respondents, was the breadth of the request in par 4(g) of the proposed directions, against the second respondent, for provision of ‘any other documents, records or information relevant to the matters alleged in the endorsed application’ as being too broad. The applicant’s counsel undertook to narrow the scope of the request by the filing of an amended minute of proposed directions which was done, and this objection has fallen away. As to the third respondent, the issue raised was the breadth of the requests for provision of correspondence passing between the third respondent and other parties, that may bring into play other proceedings involving the first and third respondents not relevant to the current proceedings. This has also been resolved by an amendment to the request.

5         The principal objection to the directions sought was from the first respondent. Those objections related to the request that the first respondent give discovery of the roll of electors provided to the second respondent and the register of its members, which the first respondent maintained would prejudice the privacy and security of the confidential information contained in those records. Furthermore, the first respondent submitted that no orders should be made for discovery and inspection, until further particulars were furnished by the applicant in relation to various aspects of her application.

6         These further and better particulars included proof of members who either did not receive ballots or did not receive them in good time to participate in the election. The first respondent also challenged the inferences sought to be drawn by the applicant, that the lower turnout in the 2022 election, compared to the election in 2018, could be wholly or partially explained by members of the first respondent either not receiving ballots or receiving them too late, and thus, having the potential to change the election outcome. This was particularly so according to the applicant, given that the Secretary was elected with a margin of only 56 votes.

Consideration

Relevant principles

7         Discovery, production and the inspection of documents is not available as of right in this jurisdiction: ALHMWU v Burswood Resort (Management) Ltd (1995) 75 WAIG 1801 at 1805. This case concerned whether the appellant union should be joined as a party to various awards of the Commission. It was held that where an application is made for general discovery, it is only if an order for discovery and inspection is just, and consistent with equity, good conscience, and the substantial merits of the case, that orders should be made. I discussed and applied the relevant principles applicable to discovery and inspection of documents, including specific discovery, in  Ellis v The Grand Lodge of WA of Antient and Free Accepted Masons Incorporated & Others (1999) 79 WAIG 1723. I need not repeat the principles discussed in that case and I adopt and apply them for present purposes.

8         As was the case in Burswood, it is to be accepted that the membership record kept by a Union under its Rules, and required to be furnished to the Registrar under s 63 of the Act, is a document that contains private and confidential information. As was concluded by Ipp J in WA Builders’ Labourers’ and Plasterers Union of Workers v Kierath and Another (unreported No.2205 of 1994 Supreme Court of Western Australia 3 February 1995), the fact that information contained in a Union membership record is private is self-evident and provisions of the Act, enabling persons to inspect such records, for example s 63(7), are to be strictly construed : per Ipp J at 7. Thus, where in the present case, an objection is raised to the discovery of such documents, I need to be satisfied that to overcome the confidentiality issue, an order requiring the production of such records is just, and consistent with equity, good conscience, and the substantial merits of the case.

9         For the following reasons, which I can relatively shortly state, I am satisfied that making such an order in these proceedings would be just.

10      Whilst the first applicant complains that the application brought by the applicant, in the relevantly identified provisions, lacks particularity, I am not persuaded that this is so. I am satisfied that the particulars furnished by the applicant as to the central contentions in the first and second grounds, are sufficient.

11      The Commission is not a court of pleadings. The procedural requirements for the commencement of applications to the Commission under s 66 of the Act, and the filing of responses, are set out in regs 14 and 59 of the Industrial Relations Commission Regulations 2005 (WA). Regulation 59(2) requires an application under s 66 of the Act to set out the standing of the applicant; particulars of any breach of a rule of an organisation; particulars of a breach of any rule as to which a remedy is sought; and the orders or directions sought.

12      The nature and function of particulars in general litigation was set out by Isaacs J in R v Associated Northern Collieries (1910) 11 CLR 738. His Honour indicated at 740-741, that their purpose is to enable an opponent to understand the nature of the case to be met; to understand the broad outlines and constituted facts; and to enable a fair hearing and to prevent surprise. In cases such as the present, where directions are made for the filing of written evidence in advance of the hearing, and where witnesses will be exposed to cross-examination, it has been questioned whether elaborate particulars are necessary: Power Infrastructure Pty Ltd v Downer EDI Engineering Power Pty Ltd (No.3) [2011] FCA 539 per Katzmann J at [11].

13      In my view, the broad outline of the applicant’s case at pars 9, 11, 12 and 14, is sufficient to put the first respondent on notice of the case it must meet, which will of course, be supplemented by the filing of affidavit evidence in due course, prior to the date of the hearing.

14      It is made plain by ground two of the application in pars 12 to 14, that a central issue in these proceedings will be the integrity of the election roll, vis a vis the membership record held by the first respondent. Second, as noted above, the other central issue in these proceedings is the alleged lack of time for members of the first respondent, particularly those living in remote and regional areas of the State, to have received ballots before the close of the election, or alternatively, whether members received ballots at all. The fact that these issues have been squarely raised and put in issue by the applicant brings into sharp focus the content of the election roll, compared to the membership record of the first respondent and the timing of the election process undertaken by the second respondent.

15      In these circumstances, I am satisfied that the issues arising on the application before me in these proceedings are plainly distinguishable from those before the Commission in Burswood.

16      In this case, given the centrality of the allegations involving the roll of electors and the member register, along with the names and addresses of members of the first respondent who were eligible to, wished to, or did take part in the election for office bearers of the first respondent, it is in my view axiomatic that the discovery and inspection of these records is just, as a matter of equity, good conscience and the substantial merits of the case under s 26(1)(a) of the Act.

Protection of confidentiality

17      As noted, it is self-evident that the membership record of the first respondent is a private document. An accepted basis on which confidentiality and privacy of a document may be preserved, in an application for discovery and inspection, is to limit inspection of the relevant document to the solicitors and counsel in the proceedings: Magellan Petroleum Australia Ltd v Sargasco Armadeus Pty Ltd [1994] 2 QB R 37. This is against the background of the well-established principle that any document produced for inspection in legal proceedings, carries with it an implied undertaking by parties, their solicitors and counsel on the record, that documents so produced not be used for any collateral or ulterior purpose. This extends to other persons who know the documents were produced because of the discovery process. The rationale for the undertaking, which is not voluntary but is a requirement of the general law, is that invasion of privacy and confidentiality is limited to that strictly necessary to do justice: Hearne v Street (2008) 235 CLR 125 per Hayne, Heydon and Crennan JJ at 158-159; 161.

18      In my view, it would not be appropriate in this case, that the disclosure of the relevant membership records be limited to the applicant’s solicitors and counsel on the record. The applicant, in bringing these proceedings, given the allegations made, must have access to the records as part of the conduct of her case. I have no doubt that the applicant’s solicitors and counsel will make clear to her the importance of the implied undertaking concerning discovery and inspection. Any issues in connection with these matters may be raised at a later stage, given the general liberty to apply in the orders to issue.

19      I also note in passing, that in any event, the electoral roll was formed from the first respondent’s register of members, referred to in s 63 of the Act. Under reg 12 of the Industrial Arbitration (Union Elections) Regulations 1980 (WA), the electoral roll was required to be made available for inspection by members of the first respondent, or other persons authorised by the returning officer, as part of the recent election process.

20      Finally, an issue was raised by the first respondent in relation to the potential insecurity arising from documents being provided in electronic form. Whilst it is noted that there is, in the context of the modern digital age, always a risk of any electronic records being accessed inappropriately, I note that the membership records are already held by both the first respondent and the third respondent in an electronic form. Thus, the risks suggested by the first respondent have been ever present. This is not in my view, a basis to refuse production of the relevant documents.

21      Orders now issue.

NOTE: [10] amended by corrigenda ([2022] WAIRC 00797)