Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 61

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 61

The CFMEU failed to discharge its onus of showing that the documents sought by the Notice to Produce were sufficiently relevant to justify production. The Notice was served unreasonably late, after specific discovery orders had been made, appeared in part to revisit or substitute for further discovery, and the remaining categories lacked apparent relevance or were tantamount to fishing. The Notice to Produce was therefore set aside.

Jurisdiction
Australia
Judgment Date
07 February 2012
Procedural Posture
Interlocutory Application to Set Aside a Notice to Produce Served Under R 30.28 of the Federal Court Rules 2011 / Hearing of Interlocutory Application at Commencement of Trial
Outcome
The interlocutory application succeeded; the Applicant's Notice to Produce dated 25 January 2012 was set aside.
Legal Topics
['notice to Produce' 'subpoena Duces Tecum' 'discovery' 'further and Better Discovery' 'apparent Relevance' 'fishing' 'case Management' 'breadth of Document Categories']
['practice and Procedure' 'fair Work'] ['notice to Produce' 'subpoena Duces Tecum' 'discovery' 'further and Better Discovery' 'apparent Relevance' 'fishing' 'case Management' 'breadth of Document Categories']

Case Brief

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Procedural Posture

Interlocutory Application to Set Aside a Notice to Produce Served Under R 30.28 of the Federal Court Rules 2011 / Hearing of Interlocutory Application at Commencement of Trial

Legal Issues

  1. 1 ["Whether the Applicant's Notice to Produce dated 25 January 2012 should be set aside." 'Whether the Notice to Produce was served unreasonably late in proximity to trial.' 'Whether the Notice to Produce was being used as an alternative to an application for further and better discovery.' 'Whether the document categories sought had apparent relevance or amounted to fishing.' 'Whether the breadth of the categories justified setting aside the Notice to Produce.']

Ratio Decidendi

The CFMEU failed to discharge its onus of showing that the documents sought by the Notice to Produce were sufficiently relevant to justify production. The Notice was served unreasonably late, after specific discovery orders had been made, appeared in part to revisit or substitute for further discovery, and the remaining categories lacked apparent relevance or were tantamount to fishing. The Notice to Produce was therefore set aside.

Court Disposition

The interlocutory application succeeded; the Applicant's Notice to Produce dated 25 January 2012 was set aside.

Orders

  • ["The Applicant's Notice to Produce dated 25 January 2012 be set aside."]