The CFMEU is facing unexpected difficulties in its defence of former miner who reportedly abused a co-worker during a protest, calling him a "scab c**t".
An ex-Norwich Park worker started the fight with BMA after he was sacked for allegedly calling a non-union employee a "scab c**t".
Walter Meacle was accused of abusing non-union worker Trevor Loader during strike action.
Meacle is accused of yelling "scab c**t" at Loader and jumping a barrier to give him "the finger".
After investigating the incident BMA terminated Meacle's employment, but he and the Construction, Forestry, Mining, and Energy Union deny the event took place.
However Meacle claims he was yelling "go home", a claim that judge Bruce Lander said was "difficult to accept".
Lawyers representing BMA and Meacle spent three days arguing over whether the accused had done anything wrong.
The CFMEU's lawyer Warren Friend denied the allegations against Meacle, saying coarse language, such as the word scab, was simply part of the picket line and therefore was protected from BMA's code of conduct.
Now the CFMEU is requesting more documents to show that Meacle was singled out and that a number of other people displayed signs with the word 'scab', as well as using offensive language, the AFR reports.
It claims that Meacle was targeted because of his human resources.
However this request has been rejected by the judge, who said that wide ranging access to BHP's documents would place an unfair time constraint on the miner in the lead up to the trial later this month.
The judge stated that if the CFMEU did not narrow its search then the trial may not even take place until July next year, although he did order BHP to provide a list of documents relating to the dismissal, those relating to the use of the word 'scab' and records showing disciplinary action against employees that have used the word.
The judge said coarse language is likely to be par for the course, as "they are coal miners, so there is nothing particularly delicate about their communication".
The trial is set for 10 July.