ApplicationS pursuant to s.84A(1)(b) of the Industrial Relations Act 1979

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2023 WAIRC 00083

DELIVERED : Wednesday, 15 February 2023

FILE NO. : FBM 1 OF 2022

Applicant

AND

Janet Reah

Respondent

FILE NO. : FBM 2 OF 2022

Applicant

AND

Australian Nursing Federation, Industrial Union of Workers Perth

Respondent

Catchwords : Industrial law (WA) - Interlocutory orders and directions - Application for discovery of documents - Whether discovery and inspection would be just and reasonable - Application of penalty privilege - Relevant principles applied - Orders issued

Legislation : Industrial Relations Act 1979 (WA) s 27(1)(o), s 44, s 84A, s 84A(1)(b)

Interpretation Act 1984 (WA) s 5 

Result : Orders and directions issued

Representation:

Counsel:

Applicant : Ms M Saraceni of counsel

Respondents : Ms B Burke of counsel

Solicitors:

Applicant : Francis Burt Chambers

Respondents : Australian Nursing Federation

Case(s) referred to in reasons:

ACCC v Eurong Beach Resort Pty Ltd (2005) FCA 1134

ACCC v FFE Building Services Pty Ltd [2003] FCAFC 132; (2003) 130 FCR 37

ASIC v Mining Projects Group Pty Ltd [2007] FCA 1620; (2007) 164 FCR 32

Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, West Australian Branch v Burswood Resort (Management) Ltd (1995) 75 WAIG 1801

Bridal Fashions Pty Ltd v Comtroller-General of Customs (1996) 17 WAR 499

Construction, Mining, and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 256 CLR 375

Daniels Corporation International Pty Ltd and Another v Australian Competition and Consumer Commission [2022] HCA 2002; (2002) 213 CLR 543

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

Environmental Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477

Fenn v The Australian Nursing Federation, Industrial Union of Workers Perth and Ors [2022] WAIRC 00795; (2022) 102 WAIG 1577

Mulley v Manifold (1959) 103 CLR 341

R v Associated Northern Collieries (1910) 11 CLR 738

Registrar v State School Teachers Union of WA (Inc) [2008] WAIRC 00270; (2008) 88 WAIG 333

Sorby v Commonwealth [1983] HCA 10; (1983) 152 CLR 281

Reasons for Decision

KENNER CC:

Background

1         The substantive proceedings before the Full Bench are brought by the Registrar under s 84A of the Industrial Relations Act 1979 (WA).  Firstly, in application FBM 1 of 2022, the Registrar seeks the enforcement of a summons issued under s 44 of the Act to Ms Janet Reah, the Secretary of the Australian Nursing Federation, Industrial Union of Workers Perth, to attend a compulsory conference before the Commission on 25 November 2022.  Secondly, in application FBM 2 of 2022, the Registrar seeks the enforcement of orders made by the Senior Commissioner on 18 November 2022 and 23 November 2022, in relation to the conduct of a ballot for an industrial agreement and the taking of State-wide industrial action by the ANF and its members, on 25 November 2022. 

2         Procedural directions were issued by the Full Bench on 23 December 2022 in both FBM 1 of 2022 and FBM 2 of 2022 respectively: [2022] WAIRC 00886; (2023) 103 WAIG 28; [2022] WAIRC 00888; (2023) 103 WAIG 30. On the same date, the Full Bench ordered that the Registrar be granted leave to amend her applications and that both matters be joined and be heard and determined together: [2022] WAIRC 00885; (2023) 103 WAIG 26; [2022] WAIRC 00887; (2023) 103 WAIG 30.

Discovery application

3         By letter dated 10 January 2023, counsel for the Registrar wrote to the solicitor for the ANF requesting informal discovery by letter, in connection with the enforcement proceedings.  By letter dated 17 January 2023, counsel for the ANF advised that the respondents were not prepared to provide informal discovery.  Accordingly, this application has been made by the Registrar seeking orders under s 27(1)(o) of the Act in the following terms:

1. By 13 February 2023, the second respondent provide to the applicant any of the following documents in the second respondent’s possession, custody or power:

a. Copies of minutes of ANFIUWP Council and Executive meetings from on or about 1 July 2022 to 25 November 2022 (inclusive) relating to matters connected with the Department of Health replacement industrial agreement.

b. Copies of communications, notices or correspondence to ANFIUWP members via email, social media, newsletters, media releases or the ANFIUWP iFolio website regarding the orders made by Senior Commissioner Cosentino on 18 November 2022 ([2022] WAIRC 00792) and 23 November 2022 ([2022] WAIRC 00798) (Orders).

c. Copies of written and/or audio records of meetings between the ANFIUWP Secretary and/or other members of the Executive or the CEO, and staff at public hospitals throughout Western Australia regarding the Orders and the industrial action held on 25 November 2022.

d. Copies of any media releases, content of press conferences or other communications the ANFIUWP prepared and/or distributed to media outlets regarding the Orders or industrial action held on 25 November 2022.

e. The number of ANFIUWP members, in respect of the industrial action held on 25 November 2922, who:

(a) registered with it to receive the strike pay subsidy of $150; and

(b) have received or are due to receive the strike pay subsidy.

f. The number of ANFIUWP members who requested and/or registered for transport by bus on its iFolio system for transportation to the rally at Parliament House on 25 November 2022.

g. The number of buses the ANFIUWP arranged for transportation of ANFIUWP members to the rally at Parliament House on 25 November 2022.

2. The parties have liberty to apply on short notice.

4         Furthermore, if the orders sought are made by the Full Bench, and provide for the production of the documents sought later than 13 February 2023, the Registrar requests that the procedural directions issued by the Full Bench on 23 December 2022 be amended, to extend the timetable prescribed.

5         The Registrar contended that the documents sought are directly relevant to the enforcement of the orders and the summons the subject of the enforcement proceedings.  It was contended that in order to assess the seriousness of the behaviour of the respondents, the focus needed to be on the requirements of the orders and the nature of the contraventions. The documents sought in the application, on the Registrar’s submissions, will enable such an assessment to be made: Registrar v State School Teachers Union of WA (Inc) [2008] WAIRC 00270; (2008) 88 WAIG 333 per Ritter AP at [80]. 

6         It was also submitted by the Registrar that as to the seriousness of the contraventions ‘the Full Bench will need to be satisfied about and the Applicant will need to lead evidence addressing factors including the circumstances in which the Orders were made; the reasons why the contraventions occurred; the nature of the contraventions; how they occurred and whether they were deliberate, or otherwise; the involvement of senior officers of the WANF in the decisions to contravene the Orders; the directions given by or the involvement of those senior officers; consequences of those contraventions on the functioning and standing of the Commission, the public and the other party to the dispute’.  (Registrar’s written submissions at [21(vii)]).

7         The ANF objected to and opposed the orders sought.  In short, it contended that the orders are not necessary for the purposes of the disposition of the proceedings.  It contended that there is already a significant amount of material annexed to the summonses issued by the Registrar before the Full Bench in applications FBM 1 of 2022 and FBM 2 of 2022, which provide a comprehensive outline of the issues to be determined in the proceedings. The ANF contended that there is no need for the provision of further material.  In its response, the ANF took objection to the specified requests and orders sought in the following terms:

Proposed Order 1a

10. Proposed order 1a sought by the Applicant requires the production of ANFIUWP Council and Executive meeting minutes from the period 1 July 2022 to 25 November 2022 relating to matters connected with the Department of Health replacement industrial agreement.

11. This proposed order is unacceptable to the Respondents and ought not be ordered as it would mean the disclosure of confidential material pertaining to ongoing industrial agreement negotiations and proceedings in the Commission which should remain confidential to the Council and Executive and obviously ought not be disclosed more broadly.  From a negotiating standpoint, it is unacceptable for the private and confidential, and potentially tactical decision making processes of one side to an ongoing negotiation to be made public and potentially revealed to the other side in the negotiations.  Clearly the minutes of an organisation’s meetings are susceptible in the context of an ongoing negotiation to use for collateral or ulterior purposes by those who may become aware of them.

Proposed Order 1b

12. Proposed order 1b sought by the Applicant seeks communications to members regarding the orders made by Senior Commissioner Cosentino, ought not be made for the simple reason that the materials being sought appear to already be contained within the Applicant’s application.

Proposed Order 1c

13. Proposed order 1c seeks written and/or audio recordings of meetings between the Secretary; CEO; and/or other Executive members and staff at public hospitals regarding the orders made by Senior Commissioner Cosentino and the industrial action held on 25 November 2022.

14. Such recordings do not exist.

Proposed Order 1d

15. Proposed order 1d seeks media releases press conferences or communications to the media regarding the orders or the industrial action held on 25 November 2022.

16. The Applicant appears to already have these materials which are evident from the Applicant’s applications.

Proposed Order 1e; 1f and 1g

17. Proposed order 1e seeks to obtain numbers of members registered to receive strike pay and who have received or are due to receive strike pay.  Proposed order 1f seeks to obtain numbers of members who requested and/or registered for transport by bus to the rally at Parliament House on 25 November 2022.  Proposed order 1g seeks the number of buses for the rally at Parliament House on 25 November 2022.

18. In both cases, the orders would require more than the discovery, production, or inspection of documents and potentially involve the creation of documents by the Australian Nursing Federation, Industrial Union of Workers Perth.

8         In sum, the ANF submitted that the orders sought by the Registrar are unnecessary for the determination of the proceedings, and it would be contrary to the relevant principles in relation to the discovery and production of documents for the orders sought to be made.

Relevant principles

9         Recently, in Fenn v The Australian Nursing Federation, Industrial Union of Workers Perth and Ors [2022] WAIRC 00795; (2022) 102 WAIG 1577, I considered relevant principles in relation to discovery at [7] as follows:

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. 

10      In Fenn, I adopted the principles applicable to discovery and inspection of documents, including specific discovery, as was considered in Ellis v The Grand Lodge of WA of Antient Free and Accepted Masons Incorporated & Others (1999) 79 WAIG 1723. I again adopt these principles for present purposes.

11      In Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, West Australian Branch v Burswood Resort (Management) Ltd (1995) 75 WAIG 1801, the Full Bench on appeal considered relevant principles for discovery and how they should be applied in this jurisdiction.  The Full Bench observed at 1805:

GENERAL DISCOVERY

The purpose of documentary discovery is to provide each party to an action with access before trial to the relevant documents in the hands of his opponent, so avoiding trial by ambush, saving costs and encouraging settlement in proper cases.

The first stage of the process, which is properly termed "discovery", is the delivery of a list of documents verified by affidavit.  The second stage is the production of documents for inspection, where no privilege is claimed in respect of such documents (see Seaman "Civil Procedure Western Australia" at page 6419 et seq).

Documents whose sole effect is to disclose the party's own case, even if they impeach the opponent's case, do not relate to matters in question.  They should be listed and objection taken to their production (see Brooks and Another v.  Prescott and Others [1948] 2 KB 133 (CA) and the cases cited therein, and also Donaldson v.  Harris (1973) 4 SASR 299 at 304 and Smith's Weekly Publishing Co Ltd v.  Sunday Times Newspaper Co Ltd [1923] 31 CLR 552 at 556).

The Court has inherent jurisdiction to refuse an order for discovery or production of documents when to do so would be unnecessary and oppressive (our underlining) (see Attorney General v.  North Metropolitan Tramways Co [189213 Ch 70 at 73).  In our opinion, the Commission, in considering whether to make an order which is just, has the same jurisdiction.

Discovery, production and inspection of documents is not available as of right in this jurisdiction.  It is available only if the Commission makes an order under s.27(1)(0) of the Act.  S.27(1)(0) reads as follows:-

"(1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it -

…

(o) make such orders as may be just with respect to any interlocutory proceedings to be taken before the hearing of any matter, the costs of those proceedings the issues to be submitted to the Commission, the persons to be served with notice of proceedings, delivery of particulars of the claims of all parties, admissions, discovery, inspection, or production of documents, inspection or production of property, examination of witnesses, and the place and mode of hearing;"

The Commission may therefore only make an order if such order is just (see Springdale Comfort Pty Ltd t/a Dalfield Homes v.  BTA (op cit) (IAC)).

S.26(l)(a) of the Act would not seem to be excluded from operation by the words of s.27(1)(o), but we do not think that it alters the question to be asked and answered under s.27(1)(o).

It is for the applicant, for an order under s.27(1)(o), to establish that it is just for such an order to be made.  The expression "just" means "right and fair, having reasonable and adequate grounds to support it, well-founded and conformable to a standard of what is proper and right" (see Loxton v.  Ryan [ 19211 State Reports (Qld) 79 at 84 and 88 per Lukin J).  Perhaps more appositely in Smith's Weekly Publishing Co Ltd v.  Sunday Times Newspaper Co Ltd (op cit), which was a case relating to discovery of documents, Isaacs and Rich JJ at page 562 held that "just" means "just according to law".

In New South Wales, too, although discovery is allowed as of right in proceedings where there are pleadings, except in proceedings for damages for death or personal injury, leave is necessary, and similar questions arise as those which arise under s.27(1)(o).  The discretion will allow discovery in actions for damages for death or personal injury if based on the test of whether it is necessary for a fair trial of proceedings to make such an order (see Percy v.  General Motors-Holden's Pty Ltd (1975) 1 NSWLR 289).

Discovery in civil proceedings is confined to what is in issue on the pleadings (see Mulley and Another v.  Manifold [1959) 103 CLR 341 and The Wellcome Foundation Ltd v.  V R Laboratories (Aust) Pty Ltd [1980-1981] 148 CLR 26 2).

12      Whilst the ANF initially contended that the ‘penalty privilege’ objection to the discovery of documents had application, counsel quite properly conceded it had no application to corporations, which includes the ANF, as an incorporated body under s 61 of the Act: Construction, Mining, and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 256 CLR 375 per French CJ, Kiefel, Bell, Gageler and Keane JJ at [2]; Daniels Corporation International Pty Ltd and Another v Australian Competition and Consumer Commission [2022] HCA 2002; (2002) 213 CLR 543 per Gleeson CJ, Gaudron, Gummow, and Hayne JJ at [31]; Environmental Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477 per Brennan J at 522 and McHugh J at 547-548.

13      At the hearing of the interlocutory applications, the Full Bench raised with the parties whether, in application FBM 1 of 2022, the agreed directions issued on 23 December 2022 requiring the parties to put on witness statements, should apply to Ms Reah, on the ground of the penalty privilege. Counsel for the Registrar submitted that the approach ought to be that Ms Reah should seek to claim the privilege when filing any witness statements. Accordingly, the existing directions can remain as they are.

14      Counsel for Ms Reah wished to consider the matter further and the Full Bench provided until 12 noon Monday 13 February 2023 for any additional submissions in writing to be provided.  By letter of 13 February 2023, Ms Reah submitted to the Full Bench that in general terms, the penalty privilege applied to her in that in application FBM 1 of 2022, she is a respondent to a penalty proceeding: R v Associated Northern Collieries (1910) 11 CLR 738 at 747. 

15      On this basis, Ms Reah contended that as a natural person, she cannot be required to answer questions, or to produce documents, if the answers or documents would tend to expose her to the imposition of a penalty: Sorby v Commonwealth [1983] HCA 10; (1983) 152 CLR 281.  As a person entitled to invoke the penalty privilege, Ms Reah further submitted that as a matter of procedure, she is entitled to wait until the close of the applicant’s case, before deciding whether to lead evidence, including to provide a witness statement: ACCC v FFE Building Services Pty Ltd [2003] FCAFC 132; (2003) 130 FCR 37.

16      It was thus submitted by Ms Reah that as she is entitled to the penalty privilege in application FBM 1 of 2022, then the procedural directions in the proceedings need to accommodate this: ASIC v Mining Projects Group Pty Ltd [2007] FCA 1620; (2007) 164 FCR 32. This means that in relation to the current directions in FBM 1 of 2022, par (2) needs to be amended to recognise Ms Reah’s entitlement to the penalty privilege and additionally, to enable her to amend her response once the applicant’s case has closed.   As to par (3), dealing with the filing of an agreed statement of facts, she submitted this should be removed.  As to par (4) dealing with the provision of witness statements, Ms Reah contended that she should be able to wait until the close of the applicant’s case, before deciding whether to go into evidence and put on statements. Likewise, par (5) should be similarly amended.  Finally, Ms Reah submitted that par (6), dealing with outlines of submissions, should be amended to provide the option for Ms Reah to put on written submissions, following the close of the applicant’s case.

17      A further submission was made by Ms Reah that in relation to application FBM 2 of 2022, the ANF would not be in breach of the directions in relation to the filing of witness statements by not filing a statement for Ms Reah.  This was contended on the basis of a claim by Ms Reah to a penalty privilege personally, and she cited ACCC v Eurong Beach Resort Pty Ltd (2005) FCA 1134 as authority in support.

18      The Full Bench gave the Registrar an opportunity to respond to Ms Reah’s further written submissions by 12 noon Tuesday, 14 February 2023.  By letter of the same date, in summary, the Registrar contended that the penalty privilege can only attach to Ms Reah in her capacity as the respondent in application FBM 1 of 2022. It is only in these proceedings that Ms Reah is subject to a possible penalty for her non-attendance at the compulsory conference on 25 November 2022.  It was accepted that to this extent, it would be inconsistent with the penalty privilege for Ms Reah to be required to put on evidence prior to the close of the Registrar’s case.  Accordingly, an amendment to par (5) of the directions should be made to recognise this.  The Registrar submitted that no penalty privilege attaches to Ms Reah in FBM 2 of 2022, as whilst she may be called as a witness, it is only the ANF that is at risk of the imposition of a penalty, and not Ms Reah.  

19      It is accepted that in application FBM 1 of 2022, as Ms Reah is the respondent to the penalty proceedings and faces a penalty if a contravention is made out, then the penalty privilege applies.  As a respondent to a penalty proceeding, Ms Reah should not be required by order, to provide documents or to put on interrogatories, which may provide evidence of illegal conduct: Rich v Australian Security and Investments Commission (2004) 220 CLR 129; R v Associated Northern Collieries (1910) 11 CLR 738 per Isaacs J at 747.

20      Whilst Ms Reah made submissions as to the filing of a response and the putting on of evidence, a point needs to be made as to the application of the privilege in this case.  The contravention alleged by the Registrar in application FBM 1 of 2022 is that Ms Reah failed to comply with a summons issued by the Senior Commissioner under s 44 of the Act.  Section 44 relevantly provides as follows:

44.  Compulsory conference, summoning, holding etc.

(1) Subject to this section, the Commission constituted by a commissioner may summon any person to attend, at a time and place specified in the summons, at a conference before the Commission.

(2) A summons under this section —

(a) may be given in the prescribed manner; and

(b) when so given is, in any proceedings under this Act relating to the summons, taken to have been served on the person to whom it is directed unless that person, in those proceedings, satisfies the commissioner who caused the summons to be given or the Full Bench, as the case may be, that the person did not receive the summons.

(3) Any person so summoned must, except for good cause, proof of which is on the person, attend the conference at the time and place specified in the summons and continue that attendance as directed by the Commission.

…

21      It would appear from the material before the Full Bench that it is unlikely to be controversial that Ms Reah did not attend the compulsory conference listed before the Senior Commissioner on 25 November 2022, in response to a summons issued under s 44(1) of the Act the prior day.  The onus rests on Ms Reah to establish that she had ‘good cause’ under s 44(3) of the Act to not attend the compulsory conference in response to the summons.  That is, all other things being equal, if Ms Reah wishes to discharge this onus on her, she needs to run a positive case, to meet the case of the Registrar. 

22      That being so, if Ms Reah persists with the privilege claim and does not put a positive case, then there is the real prospect of an adverse decision: Bridal Fashions Pty Ltd v Comtroller-General of Customs (1996) 17 WAR 499 cited and discussed in ASIC v Mining Projects Group Ltd [2007] FCA 1620; (2007) 164 FCR 32.  In the latter case, Finkelstein J made the observation at [15] that in circumstances like the current matter, a positive case can only be exculpatory, and not incriminating.

23      Be that as it may, adjustments will be made to the directions of 23 December 2022, to recognise the existence of the penalty privilege.  How Ms Reah then conducts her case, will be a matter for her.

24      As to the contentions of Ms Reah that similar consideration of the penalty privilege should extend to her in application FBM 2 of 2022, that submission must be rejected.  The authorities to which Ms Reah referred are distinguishable.  For example, in Eurong Beach, and the other cases referred to involving civil enforcement proceedings commenced by regulators such as the ACCC and ASIC, not only were the companies named as respondents to the proceedings, but so were individuals, in the main, officers of the companies involved, who were alleged to have committed accessorial type contraventions of the relevant legislation.

25      As Ms Reah is not a party to the proceedings in FBM 2 of 2022, she is not at risk of any penalty in order to claim the privilege.  Liability for any potential penalty, attaches to the ANF, as the party to the orders made by the Senior Commissioner, and as the party to these proceedings.  No such liability attaches to Ms Reah, in her capacity as an officer of the ANF. Whilst an industrial organisation such as the ANF acts through its officers and employees, it is the ANF, as a registered organsiation under the Act, to which the obligations under the Senior Commissioner’s orders ultimately attached.

26      I now turn to consider the orders sought.

Consideration

Proposed order 1a

27      This request is broad.  The request is not limited to the discovery and inspection of documents relating to compliance with the summons or the Senior Commissioner’s orders, but any matter in connection with the negotiation of a replacement industrial agreement.  Whilst the Registrar contended that such documents are necessary to enable an assessment to be made concerning decisions of the ANF about the contraventions and how they may be carried out, such an order, if made, would require the ANF to discover all documents concerning all aspects of the process of re‑negotiation of the industrial agreement between the parties.  This could include, as the ANF correctly points out, its strategy and tactics in the negotiations, and also claims to be made and when they are to be made, alternative bargaining options and such matters, which would go beyond the alleged acts of non‑compliance by the ANF, in relation to the orders.

28      However, I consider that if there exist documents, by way of Council or Executive meeting minutes, which are in the possession, custody, or power of the ANF, that relate to the ANF’s planned industrial action in the form of the State‑wide strike that took place on 25 November 2022, then such material is plainly relevant.

29      Similarly, any minutes of Council or Executive meetings of the ANF that took place in relation to the proposed ballot of union members to vote on the Department of Health’s offer for a replacement industrial agreement made on 15 November 2022, and in relation to the subsequent order of the Senior Commissioner of 18 November 2022 deferring the ballot, are relevant and should be discovered.

30      Likewise in this context, also discoverable are all minutes of meetings of the Council or the Executive of the ANF that relate to the alleged second to sixth contraventions of the 18 November 2022 order, as particularised in the summons from the Registrar to the ANF, filed on 2 December 2022, that relate to a claim by the ANF for terms and conditions better than the offer made on 15 November 2022.

Proposed order 1b

31      As to this category of documents, the Registrar submitted that such material is generated by officers of the ANF on its behalf.  It was also contended that no submission had been made by the ANF that documents in this category do not exist.  The Registrar contended that it is an insufficient response to say, as does the ANF, that those documents contained in the summonses are sufficient.  The Registrar submitted that those materials were obtained from the public domain and do not represent all of such material, including documents only available internally to the ANF, that may exist.

32      Whether some materials of the kind sought in relation to this proposed order are already contained in the summons issued by the Registrar to the ANF, is not determinative of the issue.  The purpose of discovery is to require a party to produce to an opposing party, documents in that party’s possession, custody or power that are relevant, in the sense that they may lead to a train of enquiry that may advance one party’s case or damage the case of the other: Mulley v Manifold (1959) 103 CLR 341 per Menzies J at [345].

33      Simply because some material of the kind requested may already be contained in the materials as filed is not a reason for refusing to make an order.  There may well be other such communications not yet revealed.  There also may be other material that is annotated, or upon which contains writing, which should also be disclosed. This category of documents plainly falls within the description of discoverable material and should be provided.

Proposed order 1c

34      On its face, such an order is consistent with the above principles.  If such material is in the possession, custody or power of the ANF, it should be discovered.  However, counsel for the ANF submitted that no such written or audio recordings exist.  This is not of course, to say that no such recordings were made, by for example members of the ANF.  However, unless such persons are identified and are made parties to these proceedings, and a substantial issue involves them, no order can be made for the discovery and production of material which does not exist.

35      Given the submission from the Bar table by counsel that her instructions were that no such material exists, that can be verified by the affidavit of discovery that I intend to order.

Proposed order 1d

36      This category of documents is also, on its face, relevant and discoverable.  As with proposed order 1b, the ANF asserted that the material is already in the possession of the Registrar, as it appears in the summonses.  However, for the same reasons given in relation to proposed order 1b, the existence of some of this material in the possession of the Registrar is not a reason to resist an order for discovery.

Proposed order 1e

37      As to this order, the ANF submitted that satisfaction of the order would not require the production of documents but their creation.  Relevant to this proposed order is the definition of a ‘document’ for the purposes of discovery. In s 27(1)(o) of the Act, the meaning of ‘document’ is to be taken from the definition of that word in s 5 of the Interpretation Act 1984 (WA) which is:

document includes any publication and any matter written, expressed, or described upon any substance by means of letters, figures, or marks, or by more than one of those means, which is intended to be used or may be used for the purpose of recording that matter.

38      Further, in reg 20 of the Industrial Relations Commission Regulations 2005, dealing with discovery, production and inspection of documents, ‘document’ is defined in reg 20(1) as follows:

20. Discovery, production and inspection of documents

(1) For the purposes of this regulation —

…

document means any record of information in the possession, custody or power of the party in any way relating to the proceedings and includes —

(a) any disc, tape, sound-track or other device in which sounds or other means of transmitting data (not being visual images); and

(b) any film, negative, disc, tape, video or other device in which one or more visual images are embodied so as to be capable, with or without the aid of some other device, of being reproduced from it;

…

39      Given the breadth of meaning of these terms, any electronic record of transactions regarding payments to members of the ANF, by way of ‘strike pay’, which, consistent with the obligation on the ANF under s 63 of the Act to keep accounting records of financial transactions of the organisation, are discoverable.  Similarly, any record of the same kind of requests or registrations for such payments would also be discoverable.  Records of such transactions are plainly relevant to the issues in these proceedings.  They relate directly to orders 1 and 3 of the orders of the Senior Commissioner of 23 November 2023.

40      An issue arises as to confidentiality. That relates to the possible disclosure of the names of members of the ANF who requested and received strike pay, and information that may reveal their bank accounts in connection with financial transactions.  As to this issue, in Fenn I said at [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.

41      In this circumstance, I consider such an order should be made, restricting the documents produced to the Registrar’s solicitors and counsel.

Proposed orders 1f and 1g

42      As to these two proposed orders, the Registrar submitted that the material sought is relevant to the seriousness of the alleged contraventions, their preplanned nature and number of contraventions. The ANF, as with proposed order 1e, submitted that this request may go beyond discovery and involve the creation of documents.  Given the broad meaning of ‘document’ as set out above, any record, electronic or otherwise, of requests or registrations for bus transport for ANF members to attend the rally at the State Parliament on 25 November 2022, and the number of buses provided for this purpose, is relevant to the issues in dispute and on their face, should be discovered.  It is relevant to the application in the sense that such documents may lead to a train of enquiry, in relation to issues arising in the proceedings whether such conduct involved a contravention of order 3 of the order of 23 November 2022.

43      It is to be accepted, as was raised during the hearing before the Full Bench, that not all those members of the ANF registering and taking bus transport to the rally at the Parliament on 25 November 2022, would by those facts, have been participating in strike action.  This is because no doubt, there may have been some members who attended the rally prior to their normal work starting time, later in the day, or who finished work prior to the commencement of the rally.  This was expressly contemplated in order 1(b) of the Senior Commissioner’s orders of 23 November 2022.  This possibility was accepted by counsel for the Registrar.

44      In the absence of any indication from the ANF that there can be a disaggregation of the data caught by such an order, the capture of those members who fall within the exclusion in the Senior Commissioner’s order would be inevitable.  However, given the confidentiality order I also intend to make for this material, as with proposed order 1e, then no adverse consequence arises.  It is to also be borne in mind that the discovery of documents can be made ‘if it helped to explain the controversy between the parties.  A party must discover a relevant document even if it is inadmissible in evidence’: Australian Civil Procedure, Bernard Cairns Twelfth Edition at [11.100] (footnotes omitted).

45      As to amendments to the directions of the Full Bench made on 23 December 2022 in application FBM 1 of 2022 to accommodate the penalty privilege, I consider it necessary to amend new par (3) to permit, and not require, Ms Reah to file a response.  As to the issue of witness statements, the new par (6) will enable Ms Reah to elect whether she gives evidence, which election can be made at the close of the applicant’s case. No other amendment is necessary.  

Conclusions

46      In this case, I consider that the proposed orders, as outlined above, should be made.  I consider that making such orders would be just, right, fair and reasonable and there exists an adequate basis for their making.  Discovery of the above categories of documents is to be made on affidavit, by no later than 27 February 2023.  Given the orders to be made arising from this interlocutory application, the timetable for these proceedings as set out in the directions of the               Full Bench made on 23 December 2022, requires slight amendment. New directions now issue. These revised directions are consistent with the maintenance of the hearing dates listed for these matters.  It must be emphasised that it is expected that the parties will tailor their cases, to ensure that the proceedings are completed within the dates listed for hearing.

EMMANUEL C:

47      I have read the reasons for decision of the Chief Commissioner.  I agree with those reasons and have nothing to add.

KUCERA C:

48      I also agree with the reasons for decision of the Chief Commissioner, and have nothing further to add.