DP World Brisbane Pty Ltd v Rogers & Anor [2014] ICQ 10

INDUSTRIAL COURT OF QUEENSLAND CITATION: DP World Brisbane Pty Ltd v Rogers & Anor [2014] ICQ 010 PARTIES: DP WORLD BRISBANE PTY LTD (appellant) v GARRY JOHN ROGERS (first respondent) and THE ELECTRICAL TRADES UNION OF EMPLOYEES (second respondent) CASE NO/S: C/2013/39 PROCEEDING: Appeal DELIVERED ON: 2 May 2014 HEARING DATE: 16 December 2013 MEMBER: Martin J, President ORDERS: 1. Appeal allowed; 2. That the first respondent produce his telephone records in accordance with the Notice of Attendance to Produce issued 12 June 2013; 3. That the Notice of Attendance to Produce directed to Telstra Corporation Ltd filed 18 July 2013 be issued; and 4. That the matter WHS/2013/24 be remitted to the Commission to be heard and determined according to law and in accordance with these reasons. CATCHWORDS: INDUSTRIAL LAW – QUEENSLAND – INDUSTRIAL TRIBUNALS – PROCEEDINGS IN INDUSTRIAL TRIBUNALS – EVIDENCE – where the Commission refused to issue a Notice to Attend and Produce Documents citing concerns over confidentiality and a fear that any documents admitted into evidence might be used for an improper purpose – whether the Commission gave adequate reasons – whether the Commission considered irrelevant matters in exercising its discretion Industrial Relations Act 1999, s 273, s 335, s 341 Industrial Relations (Tribunals) Rules 2011, r 60, r 61 Work Health and Safety Act 2011, s 117, s138 CASES: Alliance Petroleum Australia NL v Australian Gas Light Co Ltd (1983) 34 SASR 215, cited Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R -- 1 of 6 -- 2 509, cited Commonwealth Bank of Australia v McCormick, New South Wales Supreme Court, Greenwood M, unreported, 12 July 1995, cited Franklin v Ubaldi Foods [2005] VSCA 317, referred to National Employers’ Mutual General Insurance Association Ltd v Waind and Hill [1978] 1 NSWLR 372, cited Nicol v Brisbane City Council [1969] Qd R 371, cited R v Marks; ex parte Australian Building Construction Employees and Builders Labourers Federation (1981) 147 CLR 471; [1981] HCA 33, applied Re Clerks' (Alcoa of Australia — Mining and Refining) Consolidated Award 1985 (Print H2892), applied Santos Pty Ltd v Pipelines Authority of SA [1996] SASC 5602, cited Sybron Corp v Barclays Bank [1984] 3 WLR 1055, cited APPEARANCES: R King of K&L Gates on behalf of the appellant Unsigned written submissions filed on behalf of the first and second respondents Introduction [1] DP World Brisbane Pty Ltd has commenced proceedings in the Commission in which it seeks the revocation of an entry permit held by the first respondent, Mr Rogers, which he held under the Work Health and Safety Act 2011 (Qld) (the WHS Act). Those proceedings were brought pursuant to s 138 of the WHS Act. One of the episodes that the applicant in those proceedings referred to in support of its application involved the entry or purported entry of Mr Rogers onto its site as a permit holder under the WHS Act. [2] A person who holds an entry permit under the WHS Act may enter a site for certain specified purposes, which need not be recited here. It is a precondition to the right of entry that a permit holder form a reasonable suspicion that a contravention of the WHS Act has occurred or is occurring.1 In the proceedings before the Commission, Mr Rogers has given evidence to the effect that he formed such a reasonable suspicion following a number of telephone calls received from workers. He has stated that he made contemporaneous recordings in the nature of file notes relating to these calls, but has not provided the Commission with these records. He has not produced his telephone records in spite of a Notice of Attendance to Produce issued to him on the 12 June 2013. [3] On 30 August 2013 the Commission refused to enforce that Notice of Attendance to Produce, and to issue a further notice to Telstra Corporation Ltd, seeking the same records. The Commission’s reasons, which were delivered during the course of the hearing, were as follows: “Well, we had a discussion about privacy, and I’m not prepared to ask for those documents and hand them over to Mr King when they could go to a range of other people. That’s just not right, and I’m not doing it. But if you gave – see, the problem is, if you gave them to 1 WHS Act s 117. -- 2 of 6 -- 3 the other side, really, they’re quite at liberty to make phone calls to whoever those people are if they’ve got that information. I have a concern about that, and I’m really not prepared to do that either. I think that can stay with you. I will hear this as a normal industrial relations case, and I’ll rely on the evidence before me. I’m not taking that extra step. But, certainly, the applicant in this matter, if it chooses to do that, can take it further and someone else can make that decision.”2 [4] DP World appeals against that decision on the following grounds: 1. The Commission failed to give reasons or adequate reasons for its decision; and 2. The Decision excludes, or ignores, or results in the failure to consider, evidence that is cogent, highly relevant to, and directly probative of an issue that the Commission must determine in the proceedings. [5] The appeal is brought pursuant to s 341 of the Industrial Relations Act 1999 (Qld) (the IR Act) and is, by reason of s 341(1) restricted to an appeal based upon an error of law, or upon an excess or want of jurisdiction. [6] The respondents filed an outline of submissions but did not appear at the hearing of the appeal. Adequacy of the Commission’s reasons [7] Those who exercise judicial or quasi-judicial power must give reasons for their decisions. Those reasons must be adequate, as the law understands that requirement. The Victorian Court of Appeal has observed that: Reasons must be such as reveal – although in a particular case it may be by necessary inference – the path of reasoning which leads to the ultimate conclusion. If reasons fail in that respect, they will not enable the losing party to know why the case was lost, they will tend to frustrate a right of appeal, and their inadequacy will in such circumstances constitute an error of law.3 [8] The appellant submitted that the reasons of the Commission, set out above, do not reveal the process of reasoning that led to the decision not to require the production of the relevant telephone records, and not to issue the further notices sought by the appellant. The respondents dispute this assertion. [9] On the material put before this Court, I do not accept that the Commission failed to give reasons for its decision. The relevant section of the transcript reveals that the Commission elected to exercise a discretion not to enforce the Notice, nor to issue a further Notice in the terms sought, due to concerns over privacy, and due to concerns over the use to which the material, if produced to the Court, might be put. Ex tempore reasons delivered during the hearing of a matter may be brief, and this need not necessarily detract from their adequacy or appropriateness. [10] It remains to consider whether or not the reasons given disclose an error of law. 2 T 6-7. 3 Franklin v Ubaldi Foods [2005] VSCA 317 (Ashley JA, Warren CJ and Nettle JA agreeing). -- 3 of 6 -- 4 The Commission’s discretion [11] The Commission is required, by s 273(2)(b) of the IR Act to: “… perform its functions in a way that – (b) avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under this Act.” [12] One of the functions of the Commission is to issue, where appropriate, attendance notices pursuant to rules 58 and 59 of the Industrial Relations (Tribunals) Rules 2011 (“IRTR”). The Commission may also, pursuant to r 61 IRTR, set aside an attendance notice. [13] A similar provision was considered in R v Marks; ex parte Australian Building Construction Employees and Builders Labourers Federation4. In that case the document which could be issued by the Australian Industrial Relations Commission was called a summons. Mason J (as he then was) said: “When application is made for the issue of a summons the Commission has a discretion to grant or refuse it. Generally speaking, the Commission will exercise its discretion in favour of the applicant unless it appears that it would be vexatious or frivolous or otherwise an abuse of process to issue the summons.” (emphasis added) [14] The principles which should be applied by the Commission when considering whether to issue a notice (or to set one aside under r 61, IRTR) were considered by Munro J when he dealt with the cognate provisions in the Commonwealth legislation. I respectfully adopt what he said: “The power to compel production is discretionary and not mandatory in the sense of giving any person, intervener or party a legal right to require, as it sees fit, production of documents or attendance of witnesses. In its exercise of a broad discretion and judgment over use of the power, the Commission will have regard to practice followed in courts of law where a judicial discretion has been applied to regulate use of a subpoena to produce documents. Any such subpoena must specify with reasonable particularity documents which are required to be produced. It may be sufficiently specific to identify documents to be produced by reference to the subject matter to which they relate. In the case of a corporation, it is usually appropriate, where the custodianship of documents is not clear, to direct the subpoena to the ‘Proper Officer’. It is not legitimate to use a subpoena for what, in effect, would be discovery of documents against a person not liable to make discovery, or as a substitute for discovery which should be applied for at the proper time. The documents sought must be of a nature capable of being relevant to an issue which might legitimately arise on the hearing of the matters in dispute. In the first instance the documents are produced to the 4 (1981) 147 CLR 471. -- 4 of 6 -- 5 tribunal upon whom it falls to examine the documents, assess their relevance and determine what access by the parties to the documents may be appropriate …. A party will not be required to produce documents where to do so would be oppressive; or where the demand for production is a ‘fishing expedition’, in the sense that it is an endeavour not to obtain evidence to support a case, but to discover whether there is a case at all. Where the proper use of legal compulsion to produce documents is in issue, the tribunal will need to carry out an exercise of judgment upon the particular facts in each case. That judgment requires a balance on the one hand of the reasonableness of the burden imposed upon the recipient, and of the invasion of private rights, with on the other hand, the public interest in the due administration of justice and in ensuring that all material relevant to the issues be available to the parties to enable them to advance their respective cases. (See Clarke J: Southern Pacific Hotels Services Incorporated v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 711 at 717-721; Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 573; Purnell Brothers Pty Ltd v Transport Engineers Pty Ltd (1984) 73 FLR 160 at 174; National Employers Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372; Rochfort v Trade Practices Commission (1982) 153 CLR 134 at 146.)”5 (emphasis added) [15] Although it was not raised in argument I am compelled to observe that the Commission cannot, as appears to have been done here, simply decline to enforce an Attendance Notice. Once a Notice has been served the recipient is bound to comply with it unless it is set aside under r 61 IRTR. [16] The issue to which the Notices were intended to relate was both relevant and important. Whether telephone calls had been received and when they were received was at the heart of the debate over whether Mr Rogers had a “reasonable suspicion”. It was not just a matter of whether the Deputy President thought that she could decide the issue on the evidence as it then stood. Section 273 of the IR Act requires the “fair … conduct of proceedings”. To deny a party the reasonable opportunity of testing evidence by reference to relevant documents does not conduce to the fair conduct of proceedings. [17] The Deputy President declined to enforce the extant notice and to issue a notice to Telstra because of concerns about privacy and that the documents “could go to a range of other people”. [18] The mere claim that a document to be produced is confidential is not a valid objection to its production.6 Much of what is disclosed to another party in court or tribunal proceedings of one kind or another may well be confidential. It has been held that where this is the case, “the risk to the confidentiality of the information must be tolerated in the interest of the administration of justice”.7 Where specific 5 Re Clerks' (Alcoa of Australia — Mining and Refining) Consolidated Award 1985 (Print H2892). 6 Santos Pty Ltd v Pipelines Authority of SA [1996] SASC 5602. 7 Alliance Petroleum Australia NL v Australian Gas Light Co Ltd (1983) 34 SASR 215 at 239. -- 5 of 6 -- 6 issues of privacy or a heightened concern for commercial confidentiality, for example, arise, arrangements may be made to ensure that the disclosure of material and information that is made does not go beyond what is strictly necessary in the circumstances.8 What has been said with regard to confidential information might equally be said to apply in the case of personal information that might in other circumstances be protected by privacy legislation. Accordingly, the mere fact that information to be produced might include “private” information, however defined, is an insufficient ground in law to justify the setting aside of a Notice or to issue a Notice. [19] Reference was made in the submissions before the Commission and in this Court to the provisions of the Privacy Act 1988 (Cth). The provisions of that Act do not restrict the powers of the Commission in this case. If that Act is relevant, Principle 11, contained in s 14, expressly exempts “disclosure … required or authorised by or under law” from the limits on disclosure of personal information. [20] The second concern identified in the Commission’s reasons was as to the use to which information incidentally disclosed as a result of the relevant Notice might be put. This concern is similar to that which centres upon notions of privacy or confidentiality. It is well established that parties to whom documents are discovered may not use the discovered documents or the information that they contain for a purpose other than the conduct of the proceedings in question.9 To do so would amount to conduct in contempt of the relevant court or tribunal, and this principle has been held to extend to material produced on subpoena.10 Accordingly, this concern does not justify the exercise of the Commission’s discretion. Conclusion [21] The Commission failed to take into account the relevant considerations set out above and that has led to an erroneous exercise of discretion. As a matter of law, the factors considered by the Commission in exercising its discretion were not capable of supporting the conclusion that was reached. The appeal must be allowed. Orders [22] It is ordered that: 1. The appeal be allowed; 2. The first respondent produce his telephone records in accordance with the Notice of Attendance to Produce issued 12 June 2013; 3. The Notice of Attendance to Produce directed to Telstra Corporation Ltd filed 18 July 2013 be issued by the Registrar; and that 4. Matter WHS/2013/24 be remitted to the Commission to be heard and determined according to law and in accordance with these reasons. [23] By reason of s 335 of the IR Act, there will be no order as to costs. 8 Rule 60, IRTR; National Employers’ Mutual General Insurance Association Ltd v Waind and Hill [1978] 1 NSWLR 372 at 385 (Moffitt P). 9 Nicol v Brisbane City Council [1969] Qd R 371; Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509. 10 Commonwealth Bank of Australia v McCormick, New South Wales Supreme Court, Greenwood M, unreported, 12 July 1995; Sybron Corp v Barclays Bank [1984] 3 WLR 1055. -- 6 of 6 --