Construction, Forestry, Mining and Energy Union v Orica Australia Pty Ltd [2014] FCA 592

Construction, Forestry, Mining and Energy Union v Orica Australia Pty Ltd [2014] FCA 592

The Construction, Forestry, Mining and Energy Union is not entitled to preliminary discovery against Orica Australia Pty Ltd because sufficient information is available to decide whether to commence proceedings under the Fair Work Act 2009 (Cth). However, the Union is entitled to limited preliminary discovery against Newlands Coal Pty Ltd, as the applicant has made reasonable inquiries and lacks sufficient information to decide whether to start proceedings against Newlands. The categories of documents sought are appropriately limited and directly relevant.

Parties
Applicant: Construction, Forestry, Mining and Energy Union; Respondent: Orica Australia Pty Ltd; Respondent: Newlands Coal Pty Ltd
Jurisdiction
Australia
Judgment Date
05 June 2014
Procedural Posture
Application for Preliminary Discovery / Post Hearing Decision
Outcome
Application for preliminary discovery against Newlands Coal Pty Ltd granted; application against Orica Australia Pty Ltd dismissed; no order as to costs.
Legal Topics
Preliminary Discovery, Adverse Action, Workplace Rights, Costs
Employment Law Industrial Relations Preliminary Discovery Adverse Action Workplace Rights Costs

Case Brief

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Parties

Construction, Forestry, Mining and Energy Union

Applicant

Orica Australia Pty Ltd

Respondent

Newlands Coal Pty Ltd

Respondent

Procedural Posture

Application for Preliminary Discovery / Post Hearing Decision

Legal Issues

  1. 1 Whether the applicant is entitled to preliminary discovery pursuant to r 7.23 Federal Court Rules 2011 (Cth) against the respondents
  2. 2 Whether the applicant has sufficient information to decide whether to start proceedings under Part 3-1 of the Fair Work Act 2009 (Cth)
  3. 3 Whether an order as to costs is appropriate in a proceeding preparatory to litigation under the Fair Work Act 2009 (Cth)

Ratio Decidendi

The Construction, Forestry, Mining and Energy Union is not entitled to preliminary discovery against Orica Australia Pty Ltd because sufficient information is available to decide whether to commence proceedings under the Fair Work Act 2009 (Cth). However, the Union is entitled to limited preliminary discovery against Newlands Coal Pty Ltd, as the applicant has made reasonable inquiries and lacks sufficient information to decide whether to start proceedings against Newlands. The categories of documents sought are appropriately limited and directly relevant.

Court Disposition

Application for preliminary discovery against Newlands Coal Pty Ltd granted; application against Orica Australia Pty Ltd dismissed; no order as to costs.

Orders

  • Newlands Coal Pty Ltd to give discovery to the applicant of documents relating to the delay in the pre-strip shot on 8 October 2011 at the Newlands Mine.
  • Newlands Coal Pty Ltd to provide documents relating to any direction to Orica that resulted in Mr Henzell's exclusion from the Newlands Mine on 10 October 2011.