The Supreme Court of Victoria today handed down judgment in favour of an interlocutory application by Boral Resources (Vic) Pty Ltd (Boral) for discovery from The Construction, Forestry, Mining and Energy Union (CFMEU) in proceedings brought against the CFMEU by Boral.
Boral had applied for an order that the CFMEU give Boral transcripts of compulsory examinations conducted by the ACCC, which had been provided by the ACCC to the CFMEU under a Federal Court discovery order in the ACCC proceedings against the CFMEU.
The ACCC made submissions to the Supreme Court in relation to the application, arguing that the court should exercise its discretion not to order the CFMEU to produce to Boral the transcripts of compulsory examinations and documents referred to in any of the examinations or interviews on the basis of public interest considerations.
In his judgment, Justice Bell recognised the importance of maintaining the integrity of examinations conducted by the ACCC under section 155 of the Competition and Consumer Act 2010, stating “I accept that ordering discovery of the transcripts might not be helpful to the Commission in relation to the conduct of examinations under s155(1) generally (because it might create discomfort on the part of interviewees about the actual confidentiality of the process) and the conduct of the proceeding in the Federal Court (because it might create some witness management issues). Because of these and other considerations going to the importance of maintaining the integrity of s155(1) examinations, this court would not lightly make discovery and like orders in relation to documents covered by an implied undertaking in a contravention proceeding in the Federal Court”.
However, in reaching his decision Justice Bell considered that the just resolution of the dispute between Boral and the CFMEU, together with the likely highly probative nature of the transcripts, meant that he should exercise his discretion to order that the CFMEU provide the documents to Boral.
The judge noted that confidential information would be protected through the comprehensive confidentiality regime already in place.
“The ACCC made submissions to the court in relation to Boral’s application because it raised important policy implications regarding the ACCC’s compulsory information gathering powers and the ability for the ACCC to effectively prosecute its own court proceedings against respondents,” ACCC Chairman Rod Sims said.
“The ACCC is carefully considering the reasons for His Honour’s judgment.”
Background
On 20 November 2014, the ACCC took court action against the CFMEU alleging secondary boycott and undue harassment or coercion.