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AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.99 notification of an industrial dispute - Log of claims
Association of Professional Engineers, Scientists and Managers, Australia, The
Airly Coal Pty Ltd
VICE PRESIDENT LAWLER
SYDNEY, 14 SEPTEMBER 2005
Summonses to produce documents – application to set aside summons - confidentiality – abuse of process
 This is an application to set aside three summonses for the production of documents issued at the request of the Association of Professional Engineers, Scientists and Managers, Australia (“APESMA”). The summonses are directed to BHP Coal Pty Ltd (“BHPC”), Minerals & Energy Resources Conference Incorporated (“MEHRC”) and McDonald & Company (Australasia) Pty Ltd (“McDonald”).
 I announced my conclusion on 12 September 2005. These are the reasons for that conclusion.
 The summonses were served in the context of a notification of dispute pursuant to s.99 of the Workplace Relations Act 1996 (“the Act”). A dispute is said to exist based on the service of a log of claim on, and non-acceptance by, a number of employers in the coal industry. APESMA seeks a finding of dispute. A number of respondents challenge the jurisdiction of the Commission to deal with the dispute and contend that the service and non-acceptance of the log has not given rise to an “industrial dispute” within the meaning of s.4(1) of the Act. That matter is listed for hearing on 15 and 16 September 2005.
 BHPC is the holding company for one or more of the respondents to the log. MEHRC is an industry body of which BHPC is a member. McDonald operates a remuneration and human resources consultancy business. MERHC and McDonald were granted leave to intervene to challenge the summonses.
 APESMA had previously served a log of claims on the respondents (or most of them). In a decision dated 16 December 20041 Commissioner Bacon refused to find that the service and non-acceptance of that earlier log gave rise to an “industrial dispute” within the meaning of s.4(1) of the Act. One of the bases for that decision was a finding that the minimum wage claims in the log were fanciful and thus that the service of the log did not give rise to a “genuine dispute” as required by the authorities. Commissioner Bacon stated:
 The Commission has reached the same conclusion in relation to the claim for minimum wages. It is necessary to consider the wages claim on the narrow basis and in the context in which it is made. That is that these wages claimed are minimum wages and they do not include the raft of penalty and other payments that are contained elsewhere in the log. The relevant question then is whether a minimum wage of $1500 (plus 10%) per week for a person with no qualifications and no skills is achievable by conciliation, negotiation or arbitration in the foreseeable future. In order to properly consider that question, it is necessary to establish as a starting point the minimum wages that are currently paid in the industry. No evidence was brought about current minimum wage levels, however the Commission has some general industry knowledge.
 In the absence of any evidence concerning "market" minimum rates or anything else which might establish a higher minimum wage rate the Commission is entitled to and indeed must rely on the minimum rate in the award as the starting point. The current minimum award wage rate for an unskilled, unqualified employee is $607.30 (for 35 hours) in NSW and $677.90 (for 37.5 hours) in Queensland.
 The present log represents APESMA’s second attempt to generate a dispute with the respondents. APESMA, in response to the comments of Commission Bacon, on this occasion will seek to lead evidence as to the market rates for staff in the coal industry.
 The summons to BHPC2 requires the production of the following documents.
1. The June 2005 report published under the name of ‘Australasian Coal Mining Industry Remuneration Report’ by McDonald and Company (Australasia) Pty Ltd Consulting.
2. The most recent report published under the name of ‘Minerals and Energy Human Resources Conference’ including sections titled ‘All Sectors’ and ‘Salary Survey: Coal Sector’.
 I shall refer to the document described in item 1 as the MEHRC Report and the document described in item 2 as the McDonald Report (together, “the reports”). The schedule to the summons to MEHRC3 is in the same terms as item 2. The schedule to the summons to McDonald4 is in the same terms as item 1. APESMA contends that the two reports referred to in items 1 and 2 will afford evidence of the market rates of remuneration for staff in the coal industry in respect of positions over which APESMA has constitutional coverage.
 BHPC and MEHRC relied upon affidavits of Christopher Henry Jury and Adam Gary Rice. McDonald relied upon affidavits of Stephen Peter McDonald and Corlia Roos. APESMA did not object to the tender of these affidavits and did not require any of the deponents for cross-examination.
 The affidavit evidence establishes that:
• The reports are relied upon by members of MEHRC and customers of McDonald to assist them in setting remuneration levels and other terms and conditions of employment. The reports are the leading reports on this topic.
• Employers in the coal industry provide salary and remuneration information to McDonald and MEHRC on a basis that it will be kept strictly confidential.
• The McDonald Report, which is sold for a substantial fee to clients, is customised to for each customer so as to mask the identity of other employers in relation to the information they have provided.
• The clients of McDonald and the members of MERHC are legally bound to keep copies of reports confidential and such confidentiality has been maintained.
• If the confidentiality of the McDonald Report and the MERHC Report is not maintained there is a likelihood that employers will cease contributing information and the value of the reports will be seriously prejudiced.
• There is a risk that the particular individuals, although not named in the reports, may be able to identify themselves, or be identified by others, with the potential for prejudice to employers in the form of a risk of staff being poached by competitors or a risk of staff disgruntlement upon discovery of their remuneration position relative to others.
• Sales of the McDonald report directly generate about 15% of McDonald’s income and indirectly generate even more substantial consultancy income.
• The business of McDonald will be harmed if the confidentiality in the report is not maintained.
 In addition to the prejudice identified above, Mr Dixon SC also submitted that the respondents who subscribe to either of the reports will be prejudiced in the conduct of the proceedings because their continuing obligations of confidentiality will prevent or hinder their full reliance on the report should it be admitted into evidence.
 The power of the Commission to issue a summons for the production of documents derives from s.111(1)(s) of the Act. In exercising its discretion to issue a summons or in respect of an application to set aside a summons, the Commission will generally be guided by the principles applied by the Courts although the Commission retains a broad discretion to decline to issue a summons or to vary or revoke the order constituted by a summons. The position was summarised by Munro J in Re Clerks' (Alcoa of Australia - Mining and Refining) Consolidated Award 1985:5
“In its exercise of a broad discretion and judgement 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 document. 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 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; (section 187 of the Act appears to be the statutory counterpart of this principle of practice). 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 carryout an exercise of judgement upon the particular facts in each case. That judgement 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.”
 There are distinct stages by which a party comes to inspect documents produced pursuant to a summons or subpoena. In National Employers’ Mutual General Insurance Association Ltd v Waind and Hill6 Moffitt P identified three steps:7
“The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise. It is the third step which alone provides material upon which ultimate decision in the case rests. In these three steps the stranger and the parties have different rights and the function of the judge differs.”
 Ordinarily, issues of confidentiality are relevant to the inspection stage, although this is not universally so8 and confidentiality can be relevant to whether production ought be required. The principles in relation to confidentiality as a ground for resisting compliance with a subpoena were considered by the West Australian Court of Appeal in Apache Northwest Pty Ltd v Western Power Corporation: 9
“The next issue is that relating to confidentiality. There is, no doubt, some need in this matter to balance competing interests. In the end, however, the public interest in the administration of justice should prevail - "[T]he risk to the confidentiality of the information must be tolerated in the interests of the administration of justice", per King CJ in Alliance Petroleum Australia NL v The Australian Gas Light Company (supra), at 239, and see also at 238-239.
Mobil Oil Australia Ltd v Guina Developments Pty Ltd  2 VR 34 was a later case in which inspection was sought by the plaintiff, an unsuccessful tenderer, of tender documents held by the defendant. The defendant resisted inspection on the grounds of commercial confidentiality. The successful tenderers were given leave to intervene. At 38, Hayne JA, in whose judgment Winneke P and Phillips JA agreed, said:
"Where it is said that the documents are confidential, it may be accepted that the fact that the documents are confidential will not ordinarily be a sufficient reason to deny inspection by the opposite party. In most cases, the fact that the documents may not be used except for the purposes of the litigation concerned will be sufficient protection to the party producing them. But where, as here, the party obtaining discovery is a trade rival of the person whose secrets it is proposed should be revealed by discovery and inspection, other considerations arise."
His Honour went on to say that once the documents are inspected by the principals of the trade rival, the information which is revealed is known to the trade rival and cannot be forgotten. At 39, he continued:
"Where, as here, the problem is one of balancing the needs of a party to the litigation and the legitimate concern of a trade rival to retain secrecy of commercially sensitive information, it may well be necessary to mould orders that will distinguish between the plaintiff, its officers, its legal advisers and experts."
He added (at 40):
"It is now commonplace in the courts for material to be made available only to the legal advisers of the parties and nominated experts. Of course such arrangements bring with them their own difficulties and are arrangements that should be adopted only where there is a need to do so; of course they are arrangements that may need to be reviewed as the matter progresses towards trial or as the trial itself proceeds. But they are arrangements that are made and should be made when doing so would strike a fair balance between the competing interests of the parties seeking inspection and the party claiming confidentiality."
In the Santos (No 2)10 case, Perry J, at 18, also dealt with the issue of confidentiality. He said:
"Absent such a claim [an arguable claim for privilege or other legally recognised objection to production], the courts have consistently set their face against the assertion that documents are not liable to be produced because of their commercial sensitivity. It does not matter whether the argument arises in the context of inter parties discovery, discovery against a third party, or as is the case here, in the context of an application to strike out a subpoena directed to a stranger to the proceedings.
The stand which the courts have consistently taken is that there is no immunity from production attaching to documents only because of their commercial sensitivity, although where thought fit, the court or tribunal to whom they are produced will take all reasonable steps so far as is possible to keep such documents confidential."
At 21, he said:
"I have some difficulty in the suggestion that there can be degrees of confidentiality for this purpose. It seems to me that the weight of authority is overwhelmingly in favour of the view that however vigorously the claim for confidentiality is put forward, such a claim cannot amount to a ground upon which to strike out a subpoena, as opposed to affording a basis for the imposition of restrictions upon the use which may be made of documents once they are produced."
See also Hubbard v Hubbard  VLR 480 and Ex parte Fielder Gillespie Ltd  2 Qd R 339 , at 341."
Her Honour, rightly in our view, found herself unable to ascribe any public interest to the confidentiality of the documents in question in the present case, however much it may be in the appellants' individual interests. She did, however, accept that, although, standing alone, confidentiality is not a ground for refusing to issue, or for setting aside, a subpoena, it is a factor which is to be taken into account, together with those tests for oppression which are determined by reference to the breadth of the subpoena, the definition of documents involved and the type and degree of burden placed upon those to whom the subpoena is addressed. She also accepted that the relevance of the confidential documents being sought to the issues in the arbitration is a further factor.
Her Honour fully recognised the appellant's interest in the preservation of confidentiality. The provisions which she made to ensure the maintenance of that confidentiality, so far as reasonably practicable, were detailed, and there has been no suggestion to us that any additional provision should be made in this regard. We are not persuaded that her Honour was in error in her approach to the issue of confidentiality.
The final issue concerns oppression. In Hamilton v Oades (1989) 85 ALR 1, at 11, Deane and Gaudron JJ said:
"The power of a court to control and supervise its process to prevent injustice is not restricted to defined and closed categories: Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 639; Tringali v Stewardson Stubbs & Collett Ltd (1966) 66 SR (NSW) 335 at 340 and 344. In this context injustice is not simply a question of the purpose or motive for which the relevant proceedings were instituted but includes a consideration of the consequences of the proceedings for the person invoking the power. The terms "oppressive" and "vexatious" are often used to signify those considerations which justify the exercise of the power to control proceedings to prevent injustice, those terms respectively conveying, in appropriate context, the meaning that the proceedings are "seriously and unfairly burdensome, prejudicial or damaging" and "productive of serious and unjustified trouble and harassment": Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 62 ALJR 389 per Deane J at 411."
This issue was also addressed by Clarke J in Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd  1 NSWLR 710, at 719-720, where he said:
"If a court is called upon to rule that a subpoena is an abuse of process (ie oppressive) in this sense, it will need to carry out an exercise of judgment upon the particular facts in each case, including but not limited to the terms of the subpoena, bearing in mind the need to balance the reasonableness of the burden imposed upon the recipient and the invasion of his private rights with the public interest in the due administration of justice and, in particular, that all material relevant to the issues be available to the parties to enable them to advance their respective cases. There is, in every case, a clash between these competing interests and whilst the balancing exercise to which I have referred must be carried out, it is the latter interest which is predominant. If the needs of justice require or could require that a stranger be obliged to carry out a very burdensome task in the collection, transportation and production of a large number of documents, then a subpoena calling upon the stranger to produce those documents will be upheld."
See also the Santos case (supra) at 54-56, per Debelle J, and the authorities there cited. (emphasis added)
 Apache Northwest has been applied in a number of decisions of single judges of the Federal Court.11
 In Trade Practices Commission v Arnotts Limited,12 Beaumont J was concerned with a challenge to a subpoena issued to a third party, Mattingly. His Honour stated:13
“The general test for present purposes is well settled. The issue of a subpoena will be an abuse of process if it is not used for a legitimate forensic purpose ... But, as Deane and Gaudron JJ observed in Hamilton v Oades (1989) 85 ALR 1 at 11, the court’s general powers in this area have a dual aspect: "The inherent power of a court to control and supervise proceedings includes the power to take appropriate action to prevent injustice ...[This] power ... is not restricted to defined and closed categories ... In this context injustice is not simply a question of the purpose or motive for which the relevant proceedings were instituted but includes a consideration of the consequences of the proceedings for the person invoking the power. The terms ‘oppressive’ and ‘vexatious’ are often used to signify those considerations which justify the exercise of the power to control proceedings to prevent injustice, those terms respectively conveying, in an appropriate context, the meaning that the proceedings are ‘seriously and unfairly burdensome, prejudicial or damaging’ and ‘productive of serious and unjustified trouble and harassment’: Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 62 ALJR 389 per Deane J at 411; 79 ALR 9 at 45."
In other words, the present inquiry is not limited to an analysis of the true purpose of Arnotts in procuring the issue of the subpoena. It is also material to look at the impact of the subpoena upon Mattingly.
Without restricting this inquiry, it is convenient to address the present application in the first instance by reference to two questions:
(1) Does the material sought have an apparent relevance to the issues in the principal proceedings, ie, is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent? This involves a consideration of the matter from the standpoint of Arnotts.
(2) Is the subpoena seriously and unfairly burdensome or prejudicial? This is to look at the matter from the point of view of Mattingly.
The test of adjectival relevance is satisfied if the material has apparent relevance. In my opinion, the documentation called for here could possibly throw light on the issues in the main case. In my opinion, adjectival relevance is established.’
 That passage has been applied on a number of occasions.14
 While the Commission is not a court, undoubtedly it may exercise its general discretion as to its procedure (s.110(2)) in conjunction with the specific discretionary powers in s.111(1)(d),(f), (s) and (t) to prevent an abuse of process of the sort described in passage from Hamilton v Oades set out above.
 While I have not yet required BHPC, MEHRC or McDonald to produce the reports, I made it clear during argument that I was considering both the issue of production and the issue of inspection in relation to the reports.
 I am satisfied that APESMA has established legitimate forensic purpose in seeking production of the documents. In the light of the comments of Bacon C in his decision refusing to find a dispute based on the service and non-acceptance of the earlier log, APESMA has demonstrated that the reports satisfy the test of apparent relevance. The reports include information as to the market rates of remuneration for staff employees in the coal industry. It is strongly arguable that the market rates payable to staff in the coal industry is relevant to an assessment as to whether the wage claims in the log are fanciful or might be achieved over time by negotiation or conciliation.15 It was submitted that the reports are difficult to interpret and may be confusing or misleading if produced without explanation. This is a matter that goes to weight rather than relevance. In any event, a sample from the McDonald report16 appears to be straightforward in its interpretation.
 On the other hand, I am satisfied on the evidence that MHERC and McDonald are likely to suffer serious and irreparable harm if the confidentiality of the MHERC Report and the McDonald Report is not appropriately maintained. In particular, I am satisfied that MHERC, McDonald and others will be seriously prejudiced if APESMA is given unrestricted access to either of the reports.
 As noted, confidentiality is not a ‘stand alone’ ground for setting aside a subpoena. Confidentiality may be relevant, along with the other usual factors, for setting aside a subpoena on the ground of oppression. However, none of the usual factors are present in this case. The summonses are narrow and identify the reports with precision. There is no question of the schedules in the summonses being vague or difficult to interpret or of compliance with the summonses placing an unreasonable burden on the recipients.
 Confidentiality, and the adverse impact on third parties arising from compliance with a summons, may also enliven the discretion to set aside a summons, technically a discretion to vary or revoke the order constituted by the summons, in order to prevent an abuse of process in line with the principles discussed in Hamilton v Oades. The courts typically respond to concerns as to confidentiality by imposing limits on inspection. In my view, the legitimate concerns of BHPC, MEHRC and McDonald can properly be addressed by a regime that strictly limits inspection and preserves confidentiality. In the light of the regime I have determined, I am not satisfied that production and, possibly, inspection in accordance with that regime will be seriously and unfairly burdensome, prejudicial or damaging to BHPC, MEHRC, McDonald or others or will be productive of serious and unjustified trouble and harassment.
 In balancing the burden imposed upon the recipients of the summonses and the invasion of their private rights on the one hand with the public interest in the due administration of justice (and, in particular, that all material relevant to the issues be available to the parties to enable them to advance their respective cases) on the other, I have taken account of the fact that APESMA has already filed evidence going to the market rates for staff in the coal industry. In particular, APESMA had relied upon its own survey reports (which it markets commercially) and upon several certified agreements. It was submitted that APESMA could have issued summonses directly to individual respondents requiring the production of documents showing the actual remuneration paid to staff employees of the objectors. It was submitted, in effect, that APESMA did not need the information in the reports and that the prejudice to the MEHRC, McDonald and others substantially outweighed the doubtful benefit to APESMA in having access to additional evidence on this topic that the reports constituted. The problem with this argument is that the response of the objectors to the evidence already filed by APESMA (and to any evidence of rates paid by particular respondents) is, as yet, uncertain. It is conceivable that the objectors may substantially undermine the probative value of that evidence. It is conceivable that the reports sought through the summonses could be the difference between APESMA establishing or failing to establish that its demands are genuine.
 Balancing the interests of APESMA against the interests of the recipients and others said to be adversely affected by the disclosure of the reports I have concluded that confidentiality should be assured at present by refusing inspection until the nature and quality of the attack on APESMA’s existing evidence is known and thus whether there is a significant prospect that the evidence afforded by the reports could be the difference between APESMA establishing the existence of a “genuine dispute” or not.
 In the exercise of my discretion I have determined that I should require production of the documents but I will not permit inspection at this stage. The documents should be produced at the commencement of the hearing on Thursday 15 September 2005 and should be produced in their original form and in an expurgated form. The expurgated form of the documents will omit all material that does not relate to the salary, remuneration or conditions of staff in the coal industry in respect of which APESMA has constitutional coverage, or is necessary to make sense of such material. The documents should be produced in a sealed envelope. The sealed envelopes will be stored in a safe while they are in the custody of the Commission. They will be returned to the producing parties at the conclusion of the hearing or any appeal.
 I reserve leave to APESMA to seek inspection of the reports during the hearing in the light of evidence led, and submissions made, by the objectors in response to the other evidence led by APESMA as to market remuneration of staff in the coal industry. I will hear further argument at that time in relation to any residual prejudice said to accrue to BHPC or other respondents in dealing with the reports on account of the continuing obligations of confidentiality on those parties. At this stage, not having myself inspected the reports, I am unable to see how those continuing obligations will materially prejudice BHPC or other respondents in dealing with reports.
 In the event that inspection is permitted it will be on strict terms as to confidentiality. In that event, access will be permitted only to counsel for APESMA. A single copy of the expurgated version of the reports will be made available to counsel for APESMA on his undertaking not to disclose the contents of the reports to any person, not to make any further copies and to return his copy of the reports at the conclusion of the hearing. I will compare the original and expurgated versions to ascertain that relevant material has not been expurgated. Given that APESMA produces and markets its own survey report as to remuneration in the coal industry it would be inappropriate for the reports to be inspected by an officer of APESMA. This ought not be taken as in any way reflecting adversely on Ms Bolger, the officer of APESMA who will be instructing counsel. In relation to the confidentiality asserted by BHPC, MEHRC and McDonald, the perception of employers who provide information to MEHRC and McDonald on the basis that it will be kept confidential is important. I can well understand that those employers would have reasonable concerns if an officer of APESMA was permitted to view the reports. On the other hand, those employers ought have no concerns that counsel would breach an undertaking as to confidentiality. In the event that inspection is permitted and counsel for APESMA is successful in tendering the reports into evidence, they will be marked as a confidential exhibit and any submissions in relation to the reports will be made confidential.
BY THE COMMISSION:
Mr I Taylor of Counsel for the Association of Professional Engineers, Scientists and Managers, Australia
Mr H Dixon of Senior Counsel for BHP Coal Pty Ltd, Minerals and Energy Human Resources Conference Incorporated and others
Mr T Caspersz of Counsel for McDonald & Company (Australasia) Pty Limited
Mr A Longland of Freehills, solicitors, for Rio Tinto
Mr G Gillespie of Gillespie Consulting Services Pty Limited for Jellinbah Mining Pty Ltd and others.
Printed by authority of the Commonwealth Government Printer
<Price code C>
2 Ex E
3 Ex F
4 Ex G
5 Print H2892 at p 2
6 (1978) 1 NSWLR 372
7 At p381
8 Bright v Femcare Ltd  FCA 1344 (Lehane J) at para 
9 (1998) 19 WAR 350 (Kennedy, Pidgeon and Franklyn JJ) at p 379E
10 Santos Ltd v Pipelines Authority (SA) (No 2) (1996) 186 LSJS 257 (SACA)
11 Dorajay Pty Ltd v Aristocrat Leisure Ltd  FCA 588 (Stone J); Seven Network Ltd v News Ltd (No 5) (2005) 216 ALR 147 (Sackville J); Spatialinfo Pty Ltd v Telstra Corp Ltd  FCA 455 (Sundberg J)
12 (1989) 88 ALR 90
13 at pp 102-103
14 See cases cited at footnote 10.
15 In the modern era whether the Commission can only arbitrate awards that constitute a safety net of minimum wages and conditions it is more difficult to show that wage claims that are extravagant but not fanciful might be achieved by arbitration over time.
16 Ex C, Annexure “McD-3”