Boral Resources (Vic) Pty Ltd v CFMEU (Ruling on Discovery) [2015] VSC 352

Monday 27 July 2015 @ 10.26 a.m. | Industrial Law | Trade & Commerce

The Supreme Court of Victoria has allowed an interlocutory application by Boral Resources (Vic) Pty Ltd for discovery from the Construction, Forestry, Mining and Energy Union in the case Boral Resources (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union (Ruling on Discovery) [2015] VSC 352. Boral’s application was to discover transcripts of compulsory examinations conducted by the Australian Competition and Consumer Commission (ACCC) with regards to Construction, Forestry, Mining and Energy Unions's (CFMEU) illegal intimidation conduct directed at Boral. The case is an interlocutory decision pertaining to the greater ongoing matter between Boral and the CFMEU as we’ve previously reported here and here.

Background

The ACCC found that CFMEU secretary John Setka ordered a systematic black ban of the concrete company, Boral, during a meeting of two hundred union leaders between February 2013 and April 2014. The ACCC claimed that the resulting damage to Boral was up to twenty eight million dollars. Allegedly, the CFMEU had black banned Boral in a process of intimidation designed to end Boral’s supply of concrete to the union’s arch enemy Grocon. It is alleged that the ban of Boral products was set up at a union shop stewards meeting at Trades Hall on February 14, 2013.

The ACCC conducted its own extensive investigation into these allegations and the outcome was consistent with the concerns above. The ACCC determined that the union had engaged in secondary boycott conducted directed at Boral. Secondary boycott conduct, which is prohibited under section 45D of the Competition and Consumer Act 2010, involves at least two people acting in concert to hinder or prevent third parties from acquiring goods or services from, or supplying goods or services to, a fourth person, with the purpose and effect, or likely effect, of causing substantial loss or damage to the business of the fourth person.

Boral subsequently applied for an order to be supplied with the transcripts of the ACCC investigation from the CFMEU. The ACCC argued against the order imploring the Supreme Court to exercise its discretionary power to not grant the application on the basis of public interest considerations.

Judgment of the Victorian Supreme Court

Justice Bell of the Victorian Supreme Court recognised the importance of maintaining the integrity of examinations conducted by the ACCC. Hi Honour said:

“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, Justice Bell weighed the public interest concerns resulting from disclosure of the transcript against that of a just resolution for the altercation between Boral and the CFMEU and favoured the latter. He argued that the high probative value of the transcript and the need for justice in this case 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.

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