Notices to produce in Fair Work Commission

“In Trade Practices Commission v Arnotts Limited (No 2) [1989] FCA 248, Beaumont J dealt with a challenge to a subpoena issued to a third party, namely Mattingly. His Honour said:

‘42. 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 (see Botany Bay Instrumentation and Control Pty. Ltd. v. Stewart (1984) 3 NSWLR 98 at pp 100-1). But, as Deane and Gaudron JJ. observed in Hamilton v. Oades (1989) 85 ALR 1 (at p 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 appropriate context, the meaning that the proceedings are ‘seriously and unfairly burdensome, prejudicial or damaging’ and ‘productive of serious and unjustifed 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.”

  1. 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.
  2. 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, i.e., 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.’”

Application for an order to stop bullying – Walker (2019) FWC 4557 delivered 2 July 2019 per Sams DP