APPLICATIONS PURSUANT TO S 72A

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

COMMISSION IN COURT SESSION

CITATION : 2025 WAIRC 00188

DELIVERED : WEDNESDAY, 26 MARCH 2025

FILE NO. : CICS 5 OF 2023

Second Intervenor

FILE NO. : CICS 8 OF 2023

Second Intervenor

FILE NO. : CICS 9 OF 2023

Second Intervenor

Catchwords : Industrial Law (WA) –  Application  for  production of documents – Allegation of collusion by parties and representatives – Applications to dismiss in the public interest – Production of documents – Statutory provisions – No property in witnesses – Re‑agitation of interlocutory matters – Relevant principles applied – Applications to dismiss upheld

Legislation : Industrial Relations Act 1979 (WA) s 6(c), s 22B, s 26(1)(a), s 27(1)(a), s 27(1)(o)

Industrial Relations Commission Regulations 2005 (WA) reg 20, reg 20(14), reg 21, reg 21(1), reg 21(2)

Interpretation Act 1984 (WA) s 44, s 46, s 47

Result : Applications upheld

Representation:

Applicant : Ms R J Webb KC and with her Mr T Lettenmaier on behalf of the Western Australian Municipal, Administrative, Clerical and Services Union of Employees

Respondent : Mr O Fagir of counsel and with him Mr M Cox of counsel on behalf of the Construction, Forestry, Mining and Energy Union of Workers

First Intervenor : Mr K Trainer as agent on behalf of the Local Government, Racing and Cemeteries Employees Union (WA)

Second intervenor : Mr K de Kerloy SC of counsel and with him Mr J Creese of counsel on behalf of the Western Australian Local Government Association

Case(s) referred to in reasons:

Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch v The Western Australian Hotels and Hospitality Association Incorporated & Anor (1995) 75 WAIG 1801

AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Bajramovic v Calubaquib [2015] NSWCA 139; (2015) 71 MVR 15

Clyne v New South Wales Bar Association (1960) 104 CLR 186

Commonwealth Bank of Australia v Cooke [2000] 1 Qd R

GPI Leisure Corporation Ltd v Herdsman Investments Pty Ltd (No 3) (1992) 20 NSWLR 15

Harmony Shipping Co SA v Davis and Ors [1979] 3 All ER 177

Johnson v Gore Wood & Co [2001] 1 All ER 481

Liu v Age Company Ltd [2016] NSWCA 115; (2016) 92 NSWLR 679

Public Transport Authority of Western Australia v Leighton Contractors Pty Ltd [2007] WASCA 151; (2007) 34 WAR 279

Western Australian Municipal, Administrative, Clerical And Services Union of Employees & Ors v (Not Applicable) [2024] WAIRC 00907; (2024) 104 WAIG 2304

Western Australian Municipal, Administrative, Clerical And Services Union of Employees & Ors v (Not Applicable) [2024] WAIRC 01044; (2025) 105 WAIG 45

Reasons for Decision

THE COMMISSION IN COURT SESSION:

Brief background

1         In a decision dated 17 October 2024, the Commission in Court Session dealt with an oral application by the CFMEUW made in the course of proceedings on 16 October 2024, seeking broad ranging orders for the production of documents:  Western Australian Municipal, Administrative, Clerical And Services Union of Employees & Ors v (Not Applicable) [2024] WAIRC 00907; (2024) 104 WAIG 2304. The terms of the orders sought and the grounds for the application by the CFMEUW, were set out in the Commission in Court Session’s reasons in that matter at [1]‑[2] as follows:

[1] Towards the end of the proceedings on 16 October 2024, counsel for the CFMEU made an application for an order under reg 21 of the Industrial Relations Commission Regulations 2005 (WA) requiring the production of documents by each of the WASU and the WALGA in the following terms:

(a) all communications however described between the WASU and the WALGA concerning these proceedings or evidence given or expected to be given in these proceedings;

(b) all communications however described between the WASU and the LGRCEU concerning these proceedings or evidence given or expected to be given in these proceedings; and

(c) all communications however described between the WALGA and the LGRCEU concerning these proceedings or evidence given or expected to be given in these proceedings.

[2] The basis for the application was an assertion of collusion between the WASU and the WALGA, said to be relevant to the question of whether the WASU should continue to be permitted to ask questions of WALGA witnesses. Secondly, it was said they are relevant or potentially relevant to the credit of the WALGA witnesses, as they may disclose whether evidence that has been given is being or has been prepared in collaboration with the cross‑examiner. Thirdly, such documents are said to be relevant in relation to a submission that the CFMEU will ultimately make in these proceedings, that being that the WASU is unable or unwilling to effectively represent local government employees, as it is in a position of conflict due to its close collaboration with local government employers. The application does not extend to documents which have already been produced in these proceedings, or any that involve communications that the CFMEU is a party to.

2         The Commission in Court Session was not persuaded to make the orders in the terms as sought by the CFMEUW.  In this respect, at [7]‑[9] of its reasons, the Commission observed:

[7] We have considered this matter overnight and have formed the following views. Firstly, we do not consider there is any basis on the evidence for an order for production of documents to be made involving the LGRCEU. Secondly, as to the WASU and the WALGA, we do not consider there is any basis for an order for production of documents of whatever kind in relation to the proceedings generally as, in our opinion, this is far too broad a request. It is to be expected that in the ordinary course, parties involved in proceedings will communicate about various aspects of the proceedings, including for the purpose of narrowing issues, conferring in relation to case management steps, and for settlement of the proceedings. Cooperation and courtesy is to be encouraged, not discouraged.

[8] However, we do consider that there is a basis to make more limited orders in this matter, confined to such documents as relate to the evidence in the proceedings only. That is because we are satisfied such documents are relevant to the first and second issues identified by the CFMEU. We are doubtful that the documents are relevant to the third issue, the foreshadowed submission that WASU has a conflict due to its close collaboration with the WALGA. The CFMEU has not yet demonstrated why the WASU’s conduct of an aspect of these proceedings causes its ability to independently represent and advocate for it members in industrial matters is in any way compromised.

[9] We are also very conscious of delay, given the three month delay which has already occurred in the conduct of these proceedings, no doubt causing additional time and costs to be incurred by the parties. We are not prepared to countenance any further delay given the Commission’s obligation to hear and determine matters before it with as much speed as the requirements of the Act and a proper consideration of the matter permit.

3         In light of these observations, the Commission in Court Session made the following limited orders:

(1) THAT as to the evidence that has been given or is to be given in these proceedings any documents passing between the WASU and the WALGA that relate to that evidence and which are not subject to a claim of legal professional privilege are to be produced by the WASU and the WALGA for inspection by the CFMEU by no later than 4.00 pm Thursday, 24 October 2024.

(2) THAT any claim of legal professional privilege by either the WASU or the WALGA is to be the subject of affidavit evidence identifying by list the documents the subject of the claim of privilege, such affidavit to be put on by 4.00 pm Thursday, 24 October 2024.

(3) THAT otherwise the proceedings will continue to be heard subject to:

(a) the WASU examination of the WALGA remaining witnesses is not to involve leading questions and is to be confined to matters arising in the witnesses’ evidence in chief; and

(b) the CFMEU being given liberty to apply to recall any WALGA witness(es).

(4) THAT there be liberty to apply on short notice.

4         On the same day as the Commission delivered its decision in the above matter, on 17 October 2024, the CFMEUW made a further oral application in the course of the proceedings, to extend the scope of the orders made to witnesses called by the WASU, as well as the WALGA to whom the orders applied.  The Commission did not  make such further orders at the time the application was made.  Whilst it was later pressed by the CFMEUW on 22 October 2024, it was overtaken by events set out below at [5] (see transcript of proceedings pp 1095‑1098 and p 1147). In compliance with the first orders, the WASU and the WALGA filed affidavits of production on 24 October 2024.  Both the WASU and the WALGA claimed litigation privilege in relation to the documents discovered.

5         Subsequently, during the proceedings on 25 October 2024, counsel for the CFMEUW orally foreshadowed a further application for production of documents (see transcript of proceedings pp 117‑118).  The oral application was formalised in an application filed on 28 October 2024, by which the CFMEUW sought production of documents under reg 21 of the Industrial Relations Commission Regulations 2005, against the WASU, the WALGA and the LGRCEU.  Relevant parts of the application, set out at Annexure A ‑ Orders Sought are in the following terms:

Production required

1. In these orders:

(a) CFMEUW means the Construction, Forestry, Mining and Energy Union of Workers

(b) LGRCEU means Local Government, Racing and Cemeteries Employees Union (WA)

(c) Proponents means LGRCEU, WALGA and WASU and their representatives

(d) WALGA means Western Australian Local Government Association

(e) WASU means the applicant

2. Pursuant to regulation 21 of the Industrial Relations Commission Regulations 2005 (WA), each of WASU, WALGA and the LGRCEU are to produce to the Commission in Court Session and the CFMEUW:

(a) any documents in their power, custody or possession in the categories described at paragraphs 3 to 5 below:

(b) but excluding any communication to which the CFMEU was a party or any document which has been filed in the proceedings.

Categories of documents

3. Any communication between any two or more of the Proponents in relation to these proceedings.

4. Any communication between any two or more Proponents concerning the evidence to be given in these proceedings by any witness called by a Proponent.

5. Any document which records or refers to the content of any discussions between the representatives of one Proponent and a witness or potential witness for another Proponent, including but not limited to:

(a) file notes of the meetings between the legal representatives for WASU and WALGA witnesses Sue Wiltshire, Teresa Cole and Rosemary Miller; and

(b) file notes of the “general evidence preparation meeting” referred to in document 58 of Annexure JC‑1 to the affidavit of Joseph Creese affirmed on 24 October 2024.

…

6         The grounds advanced by the CFMEUW in support of the further application for production are set out at Annexure B ‑ Grounds of the application which are in the following terms (footnotes omitted):

1. On 3 July 2024 the respondent (CFMEUW) sought to be heard in relation to the procedure to be adopted at the hearing of the application. The CFMEUW inter alia sought orders that the applicant (WASU) and the two intervenors (WALGA and LGRCEU) (together, the Proponents) not be permitted to ask leading questions of one another’s witnesses.

2. At a directions hearing convened on 5 July 2024 the CFMEUW submitted that permitting the Proponents to ask leading questions of one another’s witnesses would, in effect, risk contravention of the rationale for the prohibition of leading questions in evidence in chief; that is to say, it would undermine the integrity of the evidence led.

3. In successfully resisting the directions sought by the CFMEUW, WASU:

(a) submitted that it suspected that the concerns identified by the CFMEUW were somewhat overstated, and unlikely to eventuate;

(b) embraced the view that there was no identity of interest between the Proponents; and

(c) submitted that there was nothing in what the CFMEUW raised which could not be dealt with by appropriate directions at the time, should that become necessary.

4. WALGA adopted the position advanced by WASU. WALGA also stated that its first witness, Ms Miller, was not a witness of “relevant events”.

5. The context of these submissions was that WALGA and WASU had in the weeks and months prior to 5 July 2024 collaborated very extensively in relation to the evidence to be called by WALGA witnesses, with more than 100 emails and text messages exchanged on the subject matter and several meetings called. This fact was discovered by happenstance.

6. The collaboration included collaboration in relation to subject matter on which WASU would “cross‑examine” WALGA witnesses. In at least some instances it appears that the subject matter was introduced by WASU. It appears that senior counsel for WASU conducted conferences with WALGA witnesses. Ms Miller appears to have been the fulcrum of the collaboration.

7. In short, the concerns which the CFMEUW had raised had, to the knowledge of WASU and WALGA, already manifested by 5 July 2024.

8. WALGA in due course led additional evidence in chief in relation to subject matter apparently proposed by WASU. WASU in due course cross‑examined in relation to that subject matter including through leading questions. This included evidence in relation to a safety inspection at the Shire of Serpentine‑Jarrahdale, management of bullying allegations at the City of Wanneroo and the ratio of inside to outside workers in local government.

9. Both the Full Bench and the CFMEUW were unaware that WASU and WALGA had collaborated in this way, and were unaware that the cross‑examination had been previously arranged. By dint of this expedient WASU was able to adduce evidence of matters supportive of its application which were not included in witness outlines filed in accordance with the directions of the Full Bench. At the same time, both WASU and WALGA insisted that the CFMEUW not be permitted to lead evidence beyond that included in its outlines of evidence.

10. In those premises, concerns arise in relation to at least the following matters:

(a) the basis on which it was submitted on 5 July 2024 that the CFMEUW’s concerns were overstated and unlikely to eventuate;

(b) the basis on which it was submitted that any of the concerns raised by the CFMEUW could be addressed by directions (bearing in mind that the Full Bench and CFMEUW were unaware of the Proponents’ conduct and only became aware of it by happenstance);

(c) the possibility that WASU and WALGA have subverted the directions of the Full Bench in relation to the filing of outlines of evidence, by adducing what is effectively additional evidence in chief through the expedient of “cross‑examination”;

(d) the credibility of the WALGA witnesses and potentially WASU and LGRCEU witnesses, and the risk that those witnesses have been coached, pressured or directed in relation to their evidence;

(e) the integrity of the evidence led by the Proponents generally and by the WALGA witnesses in particular; and

(f) the possibility that the Commission’s processes have been abused in the sense that the proceeding has been conducted in a manner which tends to bring the administration of justice into disrepute.

11. The documents sought are potentially relevant to at least the following matters:

(a) the credibility of witnesses called by the Proponents;

(b) the industrial conduct of WASU;

(c) the CFMEUW’s submission that WASU is unable to effectively represent workers because of the nature of its relationship with WALGA and its members; and

(d) the potential abuse of the processes of the Commission in Court Session and the steps required to protect those processes from abuse.

12. There is at this stage no direct evidence of collaboration between WASU and the LGRCEU in relation to the evidence of the LGRCEU witnesses. However, there was extensive supplementary evidence in chief led from LGRCEU witnesses Mr Johnson and Ms Ballantyne, and substantial questioning of those witnesses by counsel for WASU. In that context, and having regard to the modus operandi now revealed, it is necessary that the Full Bench obtain clarity in relation to the potential of similar collaboration in respect of the LGRCEU witnesses. If there has been collaboration, the Full Bench should know about it; if there has not been, compliance with orders for production will be straightforward.

7         On 12 December 2024, the LGRCEU filed an application under s 27(1)(a) of the Industrial Relations Act 1979 (WA), seeking orders that the CFMEUW application for production be dismissed.  In summary, the grounds in support of the application are that there is no evidentiary basis for the CFMEUW application to produce, and that the orders sought would be oppressive.  As the other parties foreshadowed that they may also similarly make applications under s 27(1)(a) to dismiss the CFMEUW application to produce, the Commission listed the matters for directions on 16 December 2024.  As a consequence of the conferral of the parties, on 23 December 2024, consent directions were made for the filing of further s 27(1)(a) applications by the WASU and the WALGA, and submissions in support and reply by the CFMEUW. The parties also agreed that these applications be dealt with on the papers.

The s 27(1)(a) applications

8         The thrust of the grounds in the applications brought by the WASU and the WALGA, are that the now third CFMEUW application for production of documents, is a re‑agitation of the first application, which was largely refused by the Commission in Court Session on 17 October 2024.  Secondly, that the further application, given its scope, is oppressive and will increase costs and cause undue delay in the final determination of the substantive proceedings, contrary to the Act.  Additionally, the WASU application is grounded on the further proposition that if the requested orders are made, senior counsel for the WASU may become a potential witness in the substantive matter and would have to withdraw from the case, causing significant disruption and cost to the WASU.

9         For all of these reasons, the WASU, the WALGA and the LGRCEU contended that the CFMEUW application should be dismissed as not being in the public interest.

Relevant principles to apply

Production of documents

10      An order for production of documents may be made at any time in the course of proceedings before the Commission.  The right in a party to make such an application, is however, not an unconditioned right.  It is subject to the terms of reg 21 of the Regulations, which provides as follows:

(1) At any stage of the proceedings the Commission may order any party to produce to the Commission any document in the party’s possession, custody or power, relating to any matter in question in the proceedings.

(2) No order for production of any documents to the Commission can be made unless the Commission is of the opinion that the order is necessary either for disposing fairly of the matter or for saving costs.

11      Subject to what follows below, importantly, the conditions for making an order of production of the present kind, are firstly, that it must be necessary to dispose fairly of the matter in relation to which the application is made, or secondly, it must be necessary in order to save costs.  The CFMEUW does not contend that the order it seeks is necessary on the latter ground, in order to save costs.  On the contrary, the WASU, the WALGA and the LGRCEU, all contend that the effect of the orders sought will significantly increase costs.

12      Further, the power in reg 21 for production, is for production to the Commission.  It is not an application for production to a party. Regulation 21 is silent in relation to inspection of documents.

13      In addition to the power in reg 21, reg 20 of the Regulations deals with ‘discovery, production and inspection of documents’.  It is provided in reg 20(2), that a party to proceedings before the Commission may make an application under s 27(1)(o) of the Act, for discovery.  Section 27(1)(o) of the Act is a power that deals with steps that may be taken, and the powers that may be exercised by the Commission, ‘before the hearing of any matter’, and are seemingly directed, from the subject matter of s 27(1)(o), to interlocutory orders that the Commission may make, for the purposes of enabling a matter to be heard. Subject to reg 20(14), reg 20 appears directed to the same purpose. Regulation 20(14) contemplates an application for production of documents generally, subject to any terms the Commission may impose.  Both s 27(1)(o) and reg 20 are to be construed in the context that there is no right to discovery and production in proceedings before the Commission.  Such an order may only be made if the Commission is satisfied that it would be ‘just’:  Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch v The Western Australian Hotels and Hospitality Association Incorporated & Anor (1995) 75 WAIG 1801 at 1805.

14      If an order is made by the Commission under reg 21, any documents ordered to be produced are to be delivered into the custody of the Commission, and not the party making the application. It would then be for the party seeking the documents, to establish to the satisfaction of the Commission, that the document(s) should be made available to the party who sought the orders.

15      In our view, the approach to be adopted in the circumstances of an order for production (and subsequently inspection) of documents to the Commission under reg 21(1), would require, at least, the Commission to be satisfied of the matters in reg 21(2) and also, that such an order would be consistent with equity, good conscience and the substantial merits of the case, in accordance with s 26(1)(a) of the Act, along with the obligations on the Commission to deal with matters with all due speed, and with an eye on the elimination of delay and the containment of costs. This would, of course, also be subject to any proper basis to resist production and inspection, such as a claim for legal professional privilege.  The above approach to the Regulations is consistent with the general principle that powers exercised by the Commission under the Regulations, are taken to be exercised under the Act, and the relevant provisions of the Act, as to the manner of the exercise of the Commission’s jurisdiction and powers apply (see ss 44, 46, and 47 Interpretation Act 1984 (WA)).

16      Importantly, too, for present purposes, by s 22B of the Act, the Commission is obliged, in performing its functions under the Act, to proceed with due speed, having regard to the nature of the matter before it. All of the Commission’s procedural powers are to be exercised consistent with the objects of the Act, in particular s 6(c), requiring the Commission to deal with disputes not resolved by amicable agreement with the maximum expedition and the minimum of legal form and technicality.  Provisions of the Regulations in relation to the conduct of hearings before the Commission, are directed towards the expeditious and inexpensive determination of proceedings, and the elimination of delay (see Part 3 Divisions 5 and 6).

17      Whilst the present applications are to be determined within the framework of the Act and the Regulations, the parties referred to several cases in support of their respective contentions.  As a matter of general principle, an abuse of process may arise when a party seeks to re‑litigate a matter already determined in a proceeding: AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 per French CJ at [33]‑[34].  Similar expressions of view are found in the observations of the House of Lords in Johnson v Gore Wood & Co  [2001] 1 All ER 481 per Lord Bingham at 498‑499, to the effect that a party should ‘not be vexed twice in the same matter’, as an issue of public interest.

18      Specifically in the context of interlocutory applications, the decisions of the New South Wales Court of Appeal in Bajramovic v Calubaquib [2015] NSWCA 139; (2015) 71 MVR 15 and Liu v Age Company Ltd [2016] NSWCA 115; (2016) 92 NSWLR 679 were referred to and relied upon in the written submissions. In Bajramovic, Emmett JA (Leeming JA and Adamson J agreeing) held at [40]‑[41], that it may be an abuse of process to re‑litigate in a second interlocutory application, a matter previously decided adversely to a party. However, it may not be so, if it can be demonstrated that there has been a change of circumstances, with the overriding principle being that it must be in the interests of justice to entertain the second application.

19      To a similar effect, are the observations of McColl JA in Liu at [199], that the question of whether a second application should be permitted will depend on where the interests of justice lay. Importantly in that respect, in making that assessment, consideration may need to be given to any change in circumstances and whether matters relied upon to demonstrate a change were available to be put in the earlier proceedings.

Dismissal of matter in the public interest

20      In reasons for decision of the Commission in Court Session dealing with an earlier interlocutory application made by the CFMEUW, under s 27(1)(a) of the Act, the Commission summarised the approach to the exercise of this power:  Western Australian Municipal, Administrative, Clerical And Services Union of Employees & Ors v (Not Applicable) [2024] WAIRC 01044; (2025) 105 WAIG 45. In that matter, the Commission in Court Session observed at [3]‑[6] as follows:

The application

[3] The CFMEUW application was made under s 27(1)(a) of the Act which provides as follows:

27. Powers of Commission

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

(a) at any stage of the proceedings dismiss the matter or any part of it or refrain from further hearing or determining the matter or part if it is satisfied —

(i) that the matter or part is trivial; or

(ii) that further proceedings are not necessary or desirable in the public interest; or

(iii) that the person who referred the matter to the Commission does not have a sufficient interest in the matter; or

(iv) that for any other reason the matter or part should be dismissed or the hearing of it discontinued, as the case may be;

[4] Section 27(1)(a) confers a broad discretion on the Commission to dismiss or refrain from further hearing a matter on various bases as set out.  The CFMEUW did not articulate any particular power under s 27(1)(a) upon which it relied, and given that it was contended that the WASU case could not, as advanced, succeed, we take it to be an application under s 27(1)(a)(iv) that the substantive application should be dismissed ‘for any other reason’.

[5] The power of the Commission to dismiss a matter or to refrain from further hearing a matter, is a broad power.  In The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2013] WAIRC 00754; (2013) 93 WAIG 1431 (PTA case) as to s 27(1)(a) of the Act, with particular reference to the public interest, Kenner C (as he then was) observed at [21] ‑ [23] as follows:

[21] Section 27(1)(a) of the Act provides as follows:

27. Powers of Commission

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

(a) at any stage of the proceedings dismiss the matter or any part of it or refrain from further hearing or determining the matter or part if it is satisfied —

(i) that the matter or part is trivial; or

(ii) that further proceedings are not necessary or desirable in the public interest; or

(iii) that the person who referred the matter to the Commission does not have a sufficient interest in the matter; or

(iv) that for any other reason the matter or part should be dismissed or the hearing of it discontinued, as the case may be;

[22] In another context, in The Construction, Forestry, Mining and Energy Union of Workers v Skilled Rail Services Pty Ltd (2006) 86 WAIG 1268, I considered the meaning of the “public interest” for the purposes of s 36A(1) of the Act. In referring to s 27(1)(a)(ii) of the Act, empowering the Commission to dismiss or refrain from further hearing a matter, I referred to QEC and at par 35 I observed as follows:

35 Given the construction I have placed on s 36A(1) of the Act, it is for the respondent to demonstrate that it would not be in the public interest for the Proposed Award to the made. The notion of the “public interest” is somewhat amorphous. Consideration of this issue is similar to the terms of s 27(1)(a)(ii) of the Act empowering the Commission to dismiss or refrain from further hearing a matter on the basis that further proceedings are not necessary or desirable in the public interest. Similar provisions exist in other industrial jurisdictions. In Re Queensland Electricity Commission and Ors; Ex‑parte Electrical Trade's Union of Australia (1987) 21 IR 151 the High Court in proceedings for prerogative writs against a Full Bench of the then Australian Conciliation and Arbitration Commission, held that for the purposes of the then s 41(1)(d)(iii) of the Conciliation and Arbitration Act 1904 (Cth) that “Ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests, including competing public interests, and be very much a question of fact and degree” (per Mason CJ and Wilson and Dawson JJ). In the same case, Deane J in dealing with the refrain from hearing power in the public interest observed at 162:

“The right to invoke the jurisdiction of the courts and other public tribunals of the land carries with it a prima facie right to insist upon the exercise of the jurisdiction invoked. That prima facie right to insist upon the exercise of jurisdiction is a concomitant of a basic element of the rule of law, namely, that every person and organisation, regardless of rank, condition or official standing, is “amenable to the jurisdiction” of the courts and other public tribunals (cf Dicey, An Introduction to the Study of the Law of the Constitution, 10th ed (1959), p 193). In the rare instances where a particular court of tribunal is given a broad discretionary power to refuse to exercise its jurisdiction on public interest grounds, the necessary starting point of a consideration whether such a refusal would be warranted in the circumstances of a particular case in which its jurisdiction has been duly invoked by a party must ordinarily be the prima facie right of the party who has invoked the jurisdiction to insist upon its exercise (cf per Higgins J, Merchant Service Guild of Australasia v Commonwealth Steamship Owners’ Association [No 1] (1920) 28 CLR 278 at 281). That position is a fortiori in a case where no other court or tribunal, Commonwealth or State, possesses jurisdiction fully to deal with the particular dispute. Were it otherwise, effective access to the courts and other public tribunals would be not a right which could be denied in an exceptional case on the grounds of extraordinary consideration of public policy but an uncertain privilege which could be withheld at any time on unconfined and largely unexaminable discretionary grounds (see, generally, Friedman, “Access to Justice: Social and Historical Context: in Cappelletti and Weisner (eds) Access to Justice, vol II, book 1 (1978) pp 5ff; Raz, The Authority of Law, (1979), at p 217).”

[23] I adopt what I said in Skilled Rail Services for present purposes. The discretion open to the Commission to be exercised under s 27(1)(a) is a broad one. A gloss should not be put on the words of the section to import any particular level of satisfaction to be achieved by the Commission for the exercise of the power.  However, given that a party is entitled to invoke the Commission’s jurisdiction, and prima facie expect it to be exercised there is an onus on the Authority in this case, to persuade the Commission, that in the circumstances, that prima facie right should be overridden: QEC per Deane J at 163. Further, in the exercise of the discretion, the Commission is required, as in all matters before it, to have regard to its statutory obligations under s 26(1) of the Act: Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1987) 68 WAIG 4.

[6] Given that a person who brings proceedings before the Commission is entitled to have the jurisdiction invoked, the statutory power to dismiss a matter under s 27(1)(a) of the Act is to be exercised sparingly.  Whilst the PTA case concerned a dismissal application in the public interest under s 27(1)(a)(ii), the same broad approach should be adopted to the other bases of the power in s 27(1)(a)(i), (iii) and (iv), in that the power should only be exercised in a clear case.

Witnesses and potential witnesses

21      It is trite to observe that there is no property in a witness.  In Harmony Shipping Co SA v Davis and Ors [1979] 3 All ER 177, Lord Denning Mr said:

So far as witnesses of fact are concerned, the law is as plain as can be. There is no property in a witness. The reason is because the court has a right to every man's evidence. Its primary duty is to ascertain the truth. Neither one side nor the other can debar the court from ascertaining the truth either by seeing a witness beforehand or by purchasing his evidence or by making communication to him. In no way can one side prohibit the other side from seeing a witness of fact, from getting the facts from him and from calling him to give evidence or from issuing him with a subpoena. That was laid down by the Law Society in their Guide to the Professional Conduct of Solicitors in 1944. It was affirmed and approved in 1963 by Lord Parker CJ and the judges. It is published in the Law Society's Gazette for February 1963. It says:

‘. . . the Council have always held the view that there is no property in a witness and that so long as there is no question of tampering with the evidence of witnesses it is open to the solicitor for either party in civil or criminal proceedings to interview and take a statement from any witness or prospective witness at any stage in the proceedings, whether or not that witness has been interviewed or called as a witness by the other party.’

That principle is established in the case of a witness of fact: for the plain, simple reason that the primary duty of the court is to ascertain the truth by the best evidence available. Any witness who has seen the facts or who knows the facts can be compelled to assist the court and should assist the court by giving that evidence.

22      (See too: Public Transport Authority of Western Australia v Leighton Contractors Pty Ltd [2007] WASCA 151; (2007) 34 WAR 279 per McClure JA (Steytler P and Miller JA agreeing) at [31]‑[32]).

23      A person who is a potential witness in a legal proceeding and who has prepared a witness statement, is not precluded from informing the other side or the ‘world at large’ what information has been provided: Commonwealth Bank of Australia v Cooke [2000] 1 Qd R 7 per Williams J at [27]‑[28].

24      As is pointed out in the WALGA submissions in reply, also relevant in this respect are the professional conduct rules applicable to both solicitors and barristers. Both the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 and the Legal Profession Uniform (Barristers) Rules 2015, contain provisions proscribing a solicitor or barrister from taking any step to ‘prevent or discourage prospective witnesses or a witness from conferring with an opponent or being interviewed by or on behalf of any person involved in the proceedings’. These are significant matters for the purposes of the present applications (Our emphasis).

Consideration

25      The starting point in this matter is the fact that the CFMEUW now seeks to reagitate an issue already determined by the Commission in Court Session on 17 October 2024. The burden is on it, given the Commission’s reasons for refusing the order originally sought, to establish that the Commission in Court Session, in light of that earlier refusal of the broad ranging application made on 16 October 2024, should now effectively revisit its decision and make orders that it has previously declined. If the CFMEUW cannot make out a prima facie case as to why the Commission should be moved to reconsider its earlier decision, then having regard to equity, good conscience and the substantial merits of the case, the s 27(1)(a) applications, seeking dismissal of the application in the public interest, should be granted.

26      The parties made reference in their written submissions to issues arising in July 2024, prior to the substantive hearings commencing. After the parties had filed their materials, including witness outlines and written submissions, in accordance with directions agreed by the parties, an issue was raised by the then solicitors for the CFMEUW in relation to the cross‑examination of witnesses, a relatively short time prior to the commencement of the hearing on the merits.  This is despite the filing of material having occurred over some months, in accordance with the agreed programming directions and in the knowledge that the WASU, the WALGA and the LGRCEU would each be advancing their own evidentiary cases.

27      The CFMEUW contended that the interests of the WASU, the WALGA and the LGRCEU were in common to such an extent, that each of the parties should not be able to cross‑examine each other’s witnesses. We note that this is a significant departure from the usual procedure as set out in reg 33 of the Regulations.  It was contended by the CFMEUW that only one counsel for the CMFEUW should cross‑examine witnesses from the WASU, the WALGA and the LGRCEU. Additionally, it was contended that only counsel for one of either the WASU, the WALGA or the LGRCEU, should cross‑examine CFMEUW witnesses. These contentions were advanced in partial reliance on a decision of the New South Wales Supreme Court in GPI Leisure Corporation Ltd v Herdsman Investments Pty Ltd (No 3) (1992) 20 NSWLR 15.

28      In order to address this issue, the Commission in Court Session listed the applications for directions on 5 July 2024. In response to the issues raised by the parties and interveners in the directions hearing, the Commission was not prepared to depart from its earlier views, expressed in a letter to the parties dated 3 July 2024, to the effect that it would not limit cross‑examination as sought by the CFMEUW. The Commission encouraged the parties to avoid overlapping cross‑examination and said that it would impose limits if necessary, to avoid unreasonable burdens on witnesses (see letter to parties from Associate to the Commission dated 3 July 2024).

29      It is important to appreciate the context of the 5 July 2024 directions hearing. The issue raised by the CFMEUW concerned the course of the cross‑examination of witnesses. Significant reliance was placed by the CFMEUW on GPI Leisure. That case dealt with a party’s right to a fair hearing and the examination of witnesses, to that end. In this context, we should observe that up to the point of the correspondence from the CFMEUW dated 1 july 2024, and at all times prior, including from the making of the first directions by the Commission in relation to filing evidence and documents in February 2024, there was no suggestion that the proceedings would be conducted other than in the usual way. Each party and intervenor would call its witnesses and have the right to cross‑examine the witnesses of the other party and intervenors.

30      It was quite evident from the material filed, by the time of the directions hearing held on 5 July 2024, that although there may be some overlap, that there was a divergence between the cases of the WASU, the WALGA and especially the LGRCEU. GPI Leisure is not authority for the proposition that there is a fixed rule preventing parties in the same interest from cross‑examining one another’s witnesses.  The ultimate right in a party is to have a fair hearing.  In a complex case such as the present matter, with a multiplicity of issues arising, and where there is a divergence of interests, the matters can and should be appropriately managed by minimising duplication in cross‑examination. The object is to ensure that there is no oppression to a witness. It is on that basis that the Commission indicated that it would proceed as initially indicated to the parties.

31      Notably, the proceedings to date, have largely been conducted as was expected to occur. The bulk of the cross‑examination has been conducted by senior counsel for the WASU, who has taken a lead role in the proceedings. Counsel for the WALGA did not cross‑examine any witnesses called by the WASU and the LGRCEU. Any objections to the adducing of further material in evidence in chief, of which there has been some but not a great deal, have been dealt with as intended by the Commission in Court Session.

32      As a part of this factual background, and leading to its submissions as to the alleged impropriety of the conduct of the WASU, the WALGA and the LGRCEU, the CFMEUW, in its written submissions on these applications, referred to statements made by senior counsel for WASU in the course of the 5 July 2024 directions hearing, to the effect that:

BLACKBURN, MR: Thank you. The WASU’s position is that we suspect the concerns that have been put forward by the CFMEU are somewhat overstated and unlikely to eventuate. It’s unlikely, in our view, that the parties or interveners would seek to cross‑examine at length on matters that have already been covered in previous cross‑examination or examination‑in‑chief by another intervener.

There’s nothing that, in our view, can't be dealt with by appropriate directions at the time should that be necessary whether that be a direction to curtail any cross‑ examination that’s unnecessarily duplicative or whether it be a direction not to ask leading questions of witnesses perceived to be in a similar interest.  (Our emphasis).

(Transcript of proceedings 5 July 2024 at p 12)

33      The CFMEUW’s submissions rely on that observation made by senior counsel for the WASU, to assert that despite it, and in WASU’s counsel’s knowledge, there had already been by that time, ‘extraordinary collaboration’; ‘abuse of the Commission in Court Sessions processes’; ‘that the Commission in Court Session may have been misled’; that there ‘is reason to doubt the credibility of all witnesses called by the Proponents’, along with further descriptions of the cross‑examination of Ms Cole (a WALGA witness), as being ‘orchestrated’ and a ‘charade’ along with the evidence of Ms Miller (a WALGA witness) having been the result of a ‘surreptitious collaboration’ and a ‘full blown charade’. Before dealing with the specific categories of documents sought in the reagitated application for production, there are a number of difficulties with the CFMEUW’s submissions in this regard.

34      Firstly, the above extracted submission of senior counsel for the WASU, in relation to the CFMEUW’s concerns being overstated, was solely related to the mechanics of how cross‑examination may be conducted by the parties. This was the only issue that arose concerning the cross‑examination of witnesses and it was at the behest of the CFMEUW.  The WASU contended, consistent with the Commission’s earlier expression of view, that any issues in relation to overlapping or oppressive cross‑examination, could be dealt with in the course of proceedings by the making of appropriate directions by the Commission in Court Session. Senior counsel’s submissions had nothing to do with and could not be regarded as being responsive to the serious allegations of collusion now raised, as is implied in grounds 6, 7, 9 and 10(a) and (b) of the CFMEUW application for production.

35      Secondly, there is no direct evidence before the Commission in Court Session of any of the matters the subject of the CFMEUW allegations. The affidavit of discovery of Mr Creese, upon which the CFMEUW places almost total reliance, is not evidence by any measure, of the assertions now made by the CFMEUW. The affidavit of Mr Creese refers to, by way of brief descriptions, various categories of communications between representatives of the WALGA and the WASU, in relation to various events and witnesses to be called by the WALGA, including ‘questions’ and ‘meetings’ in relation to the same.

36      None of this establishes, in fact, anything other than there has been, mostly in the period May to July 2024 prior to, and also briefly after the commencement of the substantive hearing on 15 July 2024, communications between the WASU, and the WALGA in relation to the preparation for this case.  We note, that not only prior to, and in the course of the directions hearing on 5 July 2024, but also subsequently, the Commission in Court Session has encouraged the parties and intervenors to confer and to cooperate in the preparation and presentation of their cases.  The intent of such encouragement was directed to the applications being dealt with as efficiently and as expeditiously as possible.

37      The fact that there has been communication, as revealed in the affidavit of discovery made by Mr Creese, which may have included meetings between witnesses to be called by WALGA with senior counsel for WASU, does not constitute collusion, nor it is evidence of it.  Given there is no property in a witness,  such exchanges, absent any evidence of improper conduct, is in and of itself, unexceptional. What material is presently before the Commission, falls far short of establishing any conspiracy to pervert the process of the Commission, or the engaging in of any improper behaviour by a party or counsel.

38      It is of note that none of the content of Mr Creese’s affidavit, or for that matter the affidavit of discovery made by Mr Fogliani on behalf of the WASU, contains any mention of communications between either the WASU or the WALGA and the LGRCEU. The only reference to the LGRCEU made by the CFMEUW application, is to the fact that there was extensive cross‑examination of Mr Johnson and Ms Ballantyne, by senior counsel for the WASU. This establishes nothing. Mere supposition and inference is no basis for the wide ranging orders now reagitated and sought against the LGRCEU, which have already been refused by the Commission in Court Session on 17 October 2024. There is no basis for any such order to be made now, as to make such an order against the LGRCEU would clearly be oppressive, speculative and contrary to the public interest.

39      Returning then to the WASU and the WALGA orders sought. The affidavits of both Mr Creese and Mr Fogliani, and the limited orders made on 17 October 2024, arose from the cross‑examination by senior counsel for the WASU, of Ms Miller, who was called by the WALGA. It was asserted that Ms Miller was the ‘fulcrum’ of the impropriety now alleged by the CFMEUW against the WALGA and the WASU. The contention is that there is reference in the affidavit of Mr Creese to various matters, including cross‑examination in relation to the issue of ‘the ratio of inside workers to outside workers’; to ‘evidence of WALGA witness Miller’; and ‘further questions regarding events at the City of Wanneroo’.

40      Ms Miller’s evidence in chief was in two parts. The first was a witness outline filed on 13 March 2024 which contained a list of all current and former industrial agreements applying to all local governments in Western Australia; some reference to the non‑involvement of the CFMEUW in various proceedings before the Commission; and copies of position descriptions for outside employees at various local governments (see exhibit WALGA 3). The second witness outline from Ms Miller contains position descriptions for employees who were referred to in other evidence; and whether persons referred to in a CFMEUW witness outline, on behalf of Mr Fisher, are employed by various local governments in relation to a ‘poll’, referred to in Mr Fisher’s outline of evidence (see exhibit WALGA 4).

41      Some supplementary evidence in chief was led from Ms Miller by counsel for the WALGA, about local government workforces generally, and some further matters of clarification regarding her evidence concerning Mr Fisher’s witness outline.  In relation to the issue of the local government workforce, Ms Miller was asked about proportions of inside to outside employees in local government. Ms Miller gave some general evidence as to this and referred to looking at registered industrial agreements made by the Commission, publicly available, and which are required to have numbers of employees covered by the agreement specified in it. Ms Miller’s evidence was that this was one way that she ascertained how many outside employees in local government there may be (see transcript p 967).

42      Ms Miller was then cross‑examined by senior counsel for the WASU. Senior counsel asked Ms Miller some questions about occupations in local government and whether they were in the inside or outside workforces. A document was then put to her, prepared by the WALGA, but submitted for identification by the CFMEUW (see CFMEUW MFI 1, later tendered as exhibit WASU 61).  Ms Miller’s views were sought in relation to the ratio between the inside and outside workforces in local government and whether it was approximately 80% of the former and 20% of the latter. Ms Miller confirmed that this was generally correct (see transcript pp 970‑973).

43      A number of observations may be made in relation to Ms Miller’s evidence.  Firstly, as noted by the WASU in its written submissions, following the attempted tender of the ‘Harrison email’, (from Ms Miller to Ms Harrison at the City of Wanneroo exhibit WASU MFI 1), the CFMEUW cross‑examined Ms Miller. Ms Miller was asked about the Harrison email and said that the WALGA and the WASU cooperated ‘to some extent’ in the conduct of the case. Also, her evidence was that the email to the City of Wanneroo was ‘but an example’ of the collaboration between the WASU and the WALGA, that had been occurring in the context of the proceedings (see transcript at p 984).  Ms Miller later retreated somewhat and said that ‘collaboration’ was too high a word to use, and the relationship between the WALGA and the WASU in the preparation of their cases was ‘less than that’ and the WALGA was not working ‘closely with the WASU’ (see transcript at p 1023).

44      Ms Miller further accepted that there were other documents that show cooperation between the WASU and the WALGA (see transcript p 1023). Despite the evidence that Ms Miller gave in these respects, there was no further cross‑examination of her by the CFMEUW about any suggestion of collusion or other improper conduct by the WASU, the WALGA or their solicitors or counsel, despite it having every opportunity to do so.

45      As to the issue of Ms Miller remaining in the courtroom as the instructor for WALGA’s counsel, it was contended by the CFMEUW that this had not been disclosed. Also, it was submitted that WALGA had previously indicated that Ms Miller would not be a ‘witness of fact’. As to these allegations, it was submitted by counsel for the WALGA in the directions hearing on 5 July 2024, that Ms Miller would be present in the courtroom as his instructor, and no objection was taken to this course by the then counsel for the CFMEUW (see transcript at pp 19‑20).

46      As to the ‘witness of fact’ issue, counsel for the WALGA explained in the directions hearing on 5 July 2024, that the substance of Ms Miller’s evidence would not relate to ‘relevant events’ but rather the ‘history of regulation of awards and industry and broader matters of that nature’ (see transcript p 19). This was the bulk of the evidence Ms Miller gave. The only ‘relevant event’, if it can be so described, the subject of Ms Miller’s evidence, was the content of the ‘poll’ referred to in Mr Fisher’s outline for the CFMEUW, and whether persons referred to in it were employees of certain local governments. Ms Miller was not cross‑examined on this issue.

47      The assertion is made by the CFMEUW that Ms Miller’s evidence, reflected material that had been ‘workshopped’ between the WALGA and the WASU. This assertion is based upon no more than the content of the affidavit of production of Mr Creese, and some evidence from Ms Miller that there had been a degree of co‑operation between the WASU and the WALGA in the conduct of the proceedings. There is no other evidence before the Commission in Court Session to support such an allegation.  It is tantamount to an allegation of witness coaching or tampering, as referred to by Lord Denning MR in Harmony Shipping, in the extract set out earlier in these reasons. Allegations against solicitors or barristers, that they have engaged in improper or unprofessional conduct, including interfering with the evidence of witnesses, are most serious.  Such allegations should not be made unless there is a sound evidentiary basis for them:  Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201.

48      Unless there is other evidence in the possession of the CFMEUW, of which we are presently unaware, which can be put before the Commission in Court Session to support the allegations, then they should not be maintained.

49      Reference was also made by the CFMEUW, as part of its grounds in support of the application for production, to evidence given by Ms Cole, a management employee of the Shire of Serpentine Jarrahdale, called on behalf of the WALGA, who was interposed on 29 July 2024. It was contended that when Ms Cole was cross‑examined by senior counsel for the WASU, in relation to a safety inspection by Mr Fisher, which occurred at the council’s premises on 15 February 2024, her evidence about whether employees performed any work on that day was either false or grossly misleading.

50      The exchange which took place in relation to Ms Cole’s evidence in this respect appears at pp 716‑717 of the transcript as follows:

BLACKBURN, MR: Now, you - you said in your outline that - at paragraph 12(i) that you informed Mr Muller before you went back to telephone all employees and instruct them to return to work. After the employees returned to work, given the power was turned off and the vehicles had first aid kits that were out of commission, was any work able to be performed that day by those employees?

COLE, Ms ---Ah, there was some work while we, um - there - there was an electrician coming to site to tag the, um, RCD so that that could be turned back on. Um, we were getting the first aid kits to be replenished so that vehicles could go out. In the meantime, the staff were asked to return so that they could inspect the vehicles again themselves.

BLACKBURN, MR: Yes. There will be some evidence that employees were waiting around for most of the rest of the day. Were - were you there at all?

COLE, Ms ---No. My understanding is that the vehicles actually went out, um, once first aid kits were - arrived. We actually went and picked up the first aid kits ourselves from our supplier and brought them back, and my understanding is that the vehicles went out that afternoon.

BLACKBURN, Mr That afternoon. What time does work usually finish?

COLE, Ms ---Um - ah, it would have been summer months, so probably 2.45.

BLACKBURN, Mr Work finished at 2.45?

COLE, Ms ---Correct.

51      It is unclear how it is said that this evidence was false or misleading. The CFMEUW did not refer to any evidence to suggest that this was so, and nor was this put to Ms Cole when she was cross‑examined by counsel for the CFMEUW later on 22 October 2024 (see pp 1153‑1163 transcript). When looking at Ms Coles’ evidence in its totality, and as submitted by the WALGA in its submissions in reply, given the early finish time of the outside employees of 2.45 pm at that time of year, and an early start of 5.45 am, it is not unreasonable to conclude that most of the working day was taken up dealing with vehicle issues (see transcript at pp 716‑717). Such a conclusion is also supported by the evidence of the Acting Manager Operations, Mr Muller, who testified that the 60 odd employees present on that day, spent the ‘rest of the day’ ‘cleaning up the trucks… that is all that was done on that day’ (see transcript at pp 1052‑1053). This evidence is consistent with employees not leaving the depot to perform their normal duties.

Conclusions

52      The CMFEUW has not established any material change in circumstances to warrant the making of further orders for production. The orders sought in relation to the first two categories of documents, in [3] and [4] of the application for orders, are identical to the orders sought in the first application. There was no basis for the very broad orders then sought, and there is no basis for them now.

53      As we have outlined above, there is no evidence before the Commission of collusion or improper conduct by the WASU, the WALGA or their solicitors or counsel. The affidavit of Mr Creese does not establish the basis for the CFMEUW assertions made.  This is the only change in the circumstances relied on. To contend that there is improper collusion between the WASU, the WALGA, and the LGRCEU, would require a substantial evidentiary foundation which is lacking.  At its highest, the case advanced by the CFMEUW is based on supposition and speculation.

54      Whilst it was argued by the CFMEUW that the merits of the applications should not be dealt with without a full hearing of the matter, the arguments for and against the making of the additional orders have been well rehearsed in the written submissions and it is difficult to see what further matters could be raised.  As noted above at [7], all parties agreed in the consent directions that issued on 23 December 2024, arising from the directions hearing on 16 December 2024, that these applications be determined on the papers. 

55      The grounds for making the first limited order for production on 17 October 2024, were set out in the Commission in Court Session's reasons of 16 October 2024. The orders were made in light of the evidence led up to that stage of the proceedings, especially that of Ms Miller, referred to above, who admitted that there was a degree of cooperation between the WALGA and the WASU in the preparation of their respective cases.

56      In our view, nothing has changed since that time to warrant revisiting of the orders made. The orders sought by the CFMEUW, if made at this stage of the proceedings, would inevitably lead to further substantial delay in the final determination of the matters. They would also involve significant additional costs for the parties and the interveners, all for little or no evident forensic purpose.  Furthermore, the making of orders would be at odds with the relevant provisions of the Act and the Regulations, that we have referred to earlier in these reasons.

57      Moreover, the breadth of the orders sought is oppressive. The category of documents sought in [3] of the application is extraordinarily wide.

58      The CFMEUW has not established a prima facie case that such orders would be ‘necessary ... for disposing fairly of the matter’, as required by reg 21(2) of the Regulations. Regulation 21(2) is clear in that no order can be made unless the Commission in Court Session can be so satisfied. Based on what is before the Commission, the CFMUEW has not demonstrated that it has suffered any unfairness to date, with the persuasive onus being on it to do so.

59      As we have already observed, there is no basis for any orders in relation to the LGRCEU, as nothing has changed since our refusal of orders against the LGRCEU in the first application.

60      The same general conclusions apply to the further category of documents sought at [5] of the application. Not only does this further order sought fail to have regard to the principle, discussed above, that there is no property in a witness, but also, whatever note counsel may have made of a meeting with a witness or a potential witness in the case, it will be opinion evidence, not relevant to the issues to be determined in the substantive proceedings, and will no doubt be the subject of a claim for legal professional privilege.

61      It is not, for all of the foregoing reasons, in the public interest that this further application for production of documents by the CFMEUW proceed any further. We would grant the applications by the LGRCEU, the WASU and the WALGA, that the application for production be dismissed as not being in the public interest. The Commission in Court Session will now re‑list the proceedings for further directions to deal with the claim for privilege arising from the orders made on 17 October 2024, and also to set aside dates for the re‑listing of the substantive hearing.