Al-Shennag v Bankstown City Council

The notices of motion 11On 16 December 2010, Mr Woodcock filed a notice of motion in the above matters seeking: (i) leave to use in Supreme Court proceedings No 2005/269387 documents produced in those proceedings to the Supreme Court by the Industrial Relations Commission and Bankstown City Council, which are documents prepared for the purposes of and used in Industrial Relations Commission Proceedings No 2447 of 2000 and 382 of 2001. 12Mr M S White of counsel, who appeared for Mr Woodcock, also read an affidavit of Ms Michelle Mulder, solicitor, who deposed that she had spoken to the solicitor for the Council to enquire as to whether the Council opposed the production of certain documents relied upon by the Council in proceedings in this Commission being used in the Supreme Court proceedings. The Council had no objection. Ms Mulder annexed a schedule to her affidavit of the documents that Mr Woodcock sought leave to use (Annexure C). 13Mr Al-Shennag opposed the orders sought in the notice of motion. He filed a notice of motion on 31 January 2011 and an amended notice of motion on 25 February 2011. Mr Al-Shennag read an affidavit sworn by him on 30 January 2011, which detailed the history of the Supreme Court proceedings. He also annexed numerous documents, some being part of the Supreme Court proceedings and others that were part of the proceedings in this Commission. 14In order to properly understand the differences in the approaches by the parties, it is appropriate to set out the orders sought by Mr Al-Shennag: 2. To dismiss Mr. Bill Woodcock's Notice of Motion that was filed with the Commission on 16.12.10 (see at [185] to [190] AA-6), and in lieu, 3. give leave to allow Mr. Al-Shennag and Mr. Bill Woodcock who are parties (i.e. plaintiff and defendant) in the current proceedings before the Supreme Court of NSW (matter no. 005/269387) to use in that proceedings documents or class of documents from those which were produced to the Supreme Court by the Industrial Relations Commission, and Bankstown City Council which were prepared and brought into existence, for the purpose to use in the Industrial Relation Commission proceedings before the IRC [e.g. No. 6352 of 99 No. 244 of 2000; No. 382 of 2001 and No. IRC 879/2002], except those specified in items 4(1-3) mentioned below. This leave is to included also any document of those which were: a. Prepared and brought into existence: immediately before and after the publication of the complained of report in connection with, or in respect of, or as a result of the publication of the complained of report on 9.07.99. b. referred to, in Mr. AL-Shennag's : (i) affidavit 4 i.e. [62]to[82] AA-6, that was affirmed on 22.09.10 and filed, and served on 23.09.10, and on 18.10.10; (ii) in the list of documents in part 1, i.e. at [93] to [108]AA-6 which he filed and served on 14.01.11 together with his affidavit 5, in his verifying the list of documents i.e. at [96]to[107]AA-6 of which Mr. Bill Woodcock (as a defendant) has to discover from Mr. AL-Shennag (as a plaintiff) in the process of discovery. c. All documents filed with the IRC and served in connection with the orders sought in this Amended Notice of Motion and in the Applicant's Notice of Motion that was filed and served on 31.01.11 together with those documents comprising Annexure "AA-6" Annexed to the applicant's affidavit 6 d. The Commission declare that all the documents in Mr AL-Shennag's files of the proceedings that were before IRC as include sensitive documents and information and are classified as restricted access documents. 4. The leave in item 3 mention above is not to include any document or class of documents of those: 4.1 Which were related to, or in connection with; or came into existence as a result of; or were part of Mr. AL-Shennag's protected disclosures that he made in confidence to the Council's General Manager or to the ICAC in about 1996/1997 in respect of alleged malpractice and possible corruptions that were alleged to be in the council's system including in the process of Developments Approval which was under the management of Mr. Kerzenger and Mr. Bullock; 4.2 All copies of negative documents that were considered to be as part of my personal file in the council (e.g those listed in Annexure "M" in paragraph 14 of Ms M McConnell's affidavit sworn on 18.08.10, i.e see at [141AA-6] and almost were came into existence in about the beginning of 1996 and up to the end 1997 which the plaintiff disputes (e.g see at [56] to [61]AA-6) and alleged they were made up and/or fabricated by his manager or under his direction as reprisal for his disclosures. 4.3 The Applicant's (my) wife's letters and/or statements that include confidential and sensitive personal information including those that she sent to the council's General Manager in confidence in about the first half of 1997 (without my knowledge even) in respect of my suffering at home after working hours due to Mr. Kerzenger's victimisation and harassment in the work place in the council that were due to my disclosures of malpractice and possible corrupt systems under his management. 5. The Commission declare to the effect that, any leave by the Commission in respect of this notice of motion or in respect of the notice of motion that was filed by the defendant on 16.12.10 is in order only to give release from any obligations to undertake, that may be imposed by law on either or both parties, to the effect not to use any document (including in the current proceedings before the SC) from those which were prepared and brought into existence only for the purpose of the IRC's proceedings (No. 6352 of 99 No. 244 of 2000; No. 382 of 2001, and No. IRC 879/2002); in that this should not be understood or interpreted by anyone including the parties; that the Commission's leave in this respect means to have the effect of: (a) predeterminations or judgement in respect of the relevancy and admissibility of documents as evidence in respect of any issues in the matter that may require to be heard and determined on merit before the Supreme Court during the trials of the issues before the SC in the further proceedings; or (b) waiving or compromising any legal right of any party (e.g. under the provision of the Court's rules or the of Evidence Act 1995) during the hearing of any issue in the matter (e.g. Defence, damages) in the further proceedings before the Supreme Court to object under any related ground or base regarding the relevancy and admissibility of any document as evidence including in respect of those documents that may be covered by this leave.

Consideration 15The issue for determination is whether I should grant leave for all or some of the documents contained in the Commission's files to be used in the Supreme Court proceedings. 16Mr White made clear that leave was sought to use the documents in the sense of reading them. Counsel readily accepted that issues of relevance or admissibility of material used in the Commission proceedings being used in the Supreme Court trial would ultimately be a matter for the trial judge. See Adamson v Ede; ACN 09759817 Pty Ltd v Ede [2006] NSWSC 1342. 17Mr White submitted that the control by the Commission of the use of documents served or filed in Commission proceedings, is "an aspect of practice and procedure in the Commission." Counsel referred to s 162 of the Industrial Relations Act 1996 (" IR Act "), which provides that the Commission has the power to determine its own procedures. It also has expressly conferred upon it the powers of the Supreme Court in relation to punishment for contempt: s 164(2) of the IR Act . 18If Mr Woodcock were to use the documents contained in the Commission's files in the Supreme Court proceedings without leave, he would be exposed to a possible charge of contempt in the Commission: see Home Office v Harman [1982] 1 AC 280. 19The Commission has regarded the granting of leave in relation to the use of documents as part of its powers in dealing with practice and procedure under the now repealed Industrial Relations Commission Rules 1996: see John Lahoud & Anor v Victor Lahoud & Ors [2000] NSWIRComm 106; Industrial Registrar of New South Wales v Uniting Church of Australia Property Trust (NSW) [2003] NSWIRComm 387; (2003) 131 IR 368 at [16] - [25] ; James v Deutsche Australia Limited [2004] NSWIRComm 208. 20Mr Al-Shennag, who was granted two extensions of time to file written submissions in respect of whether the Commission had power to make the orders sought, submitted that it was "not within the Commission's jurisdiction power to grant the leave or make the ambiguous order as sought by Mr Bill Woodcock ... including in respect of the about 8000 unspecified documents among those groups of documents which has been listed ambiguously in Annexure "C" that was annexed to Ms M Mulder's affidavit." 21The basis for this submission was that the Commission's jurisdiction, powers and functions were to be found in s 153 of the IR Act . That section deals with the jurisdiction of the Industrial Court of New South Wales, formerly the Commission in Court Session. It does not deal with the powers of the Commission. 22Reference was also made by Mr Al-Shennag to the procedures and powers of the Commission found in Pt 5 of the IR Act . Section 162(2)(h), which is found in Pt 5, was relied upon by Mr Al-Shennag. This provision enables the Commission to dismiss at any stage any proceedings before it if it considers the proceedings are frivolous or vexatious. To the extent that Mr Al-Shennag sought to make such an application, it is rejected. There is no basis for any such finding, particularly in circumstances where if Mr Woodcock were to use the material in the Commission's files without leave, he would potentially be in contempt. 23In my view, the ability to regulate the usage of documents filed and served in the Commission proceedings is an incidental and necessary aspect of the practice and procedure of the Commission in dealing with its express powers relating to contempt. 24I agree with Mr White that it must be an incident of the Commission's contempt powers to excuse the potential contempt on the application of a person who has grounds to apply to use documents in other proceedings. 25The Commission's files identified earlier in this decision, were produced to the Registry of the Supreme Court at the request of Mr Woodcock. Mr Al-Shennag objected to Mr Woodcock obtaining access to the various documents in those files and also to documents produced in answer to a subpoena by the Council. Mr Woodcock applied for access to these documents. McCallum J granted access to the majority of the documents: Al-Shennag v Statewide Roads Limited [2010] NSWSC 366. 26Mr Woodcock now requires the leave of this Commission in order to be able to use the documents in the Commission's files for the purpose of litigation in the Supreme Court proceedings. Leave is required in order that Mr Woodcock does not breach the implied undertaking to use such documents only for the purpose of proceedings in which they were contested. The reason for the implied undertaking was discussed in Home Office v Harman ; Crest Homes PLC v Marks [1987] AC 829; Ainsworth v Hanrahan (1991) 25 NSWLR 155. 27Wilcox J in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 110 ALR 685 , explained the relevant test for leave to use documents prepared in other proceedings as it had been applied in Australian decisions as follows (at 692): For 'special circumstances' to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court's discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document, and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding. 28Mr Woodcock seeks access to the material contained in the Commission's files on the basis that such material is likely to assist him in his defence in the Supreme Court proceedings. 29Mr White submitted that there were 11 grounds for the granting of leave. Those grounds were: (a) all of the documents were created for the purpose of the IRC litigation and expected to be disclosed in the public domain; (b) parts of the affidavits, including Mr Al-Shennag's affidavit, were actually read into evidence during the hearing before Tabbaa C, Mr Al-Shennag's affidavit was then wholly included in the appeal books on appeal; (c) the written submissions, pleadings and appeal books were filed and even though not "public" in the same sense that evidence read in court becomes public, were referred to in court and were obviously prepared with the intention that their contents would or may be disclosed in open court; (d) Mr Woodcock obtained access to the documents through the legitimate processes of the Supreme Court and after leave was granted by McCallum J; (e) none of the documents contains any commercially sensitive information; (f) insofar as the documents exhibit or include copies of documents from the Council's employment file containing personal data concerning Mr Al-Shennag, all of those documents have been produced by the Council in the Supreme Court litigation as relevant to the issues in that litigation and access has been granted to the applicant; (g) insofar as Mr Al-Shennag alleges that these underlying documents contain "protected disclosures", they are already available to the applicant in the Supreme Court proceedings, and the assertion that the disclosures were "protected" has already been rejected by McCallum J; (h) the documents clearly are relevant to the issue raised in the Supreme Court proceedings of the cause of Mr Al-Shennag's dismissal in May 2000, including the reasons which were advanced for that dismissal by the Council and Mr Al-Shennag in the IRC proceedings and the evidence which they presented in support of their arguments before the Commission; (i) the documents will not only contribute to the achievement of justice in the Supreme Court proceedings, but are essential for the Court to obtain a properly comprehensive picture of the background and events leading to Mr Al-Shennag's dismissal, the relevance to that history of the impugned report of Mr Woodcock and the emphasis which Mr Al-Shennag put on that report when claiming he was unfairly dismissed; (j) Mr Al-Shennag's opposition to leave being granted is limited to the documents referred to in paragraph 4 of his notice of motion filed on 31 January 2011, but the documents he objects to being used ("negative documents" from this employment file and his wife's communications to the Council about his medical condition) are precisely those that go to the heart of the reasons for his dismissal; (k) it would be an obvious injustice to Mr Woodcock if he was not permitted to investigate use, in his defence of the economic loss claim in the Supreme Court, the documents presented by Mr Al-Shennag and the Council in the IRC proceedings. 30Mr Al-Shennag also seeks the leave of the Commission that he be able to use certain classes of the documents that formed part of the Commission's proceedings in his Supreme Court matter. However, he opposes leave to the class of documents set out in paragraphs 4.1 to 4.3 of his notice of motion. 31Mr Al-Shennag submitted in his written submissions and orally that if I were to grant leave, it would have the effect of predetermining that all documents prepared for the purpose of conducting his matter before the Commission "were relevant and admissible evidence ... without allowing the plaintiff to have any opportunity for any basic legal right for objection during the hearing before the Supreme Court." This submission is misconceived as it will ultimately be a matter for the trial judge to determine the admissibility of any document(s). 32The second ground relied upon by Mr Al-Shennag was that if leave were granted, it would tend to prejudice and deprive him of a fair trial and natural justice during the hearing of the matter in the Supreme Court. Once again, there is no basis for such a submission. 33In the Supreme Court defamation proceedings Mr Al-Shennag claims damages for economic loss in the sum of $6.2 M on the basis that his dismissal was caused by the publication of a report prepared by Mr Woodcock in 1999: (see Amended Statement of Claim in proceedings No 2005/269387 dated 29 May 2007, paragraphs 14-16). 34There is, therefore, an obvious overlap in the issues and the relevant evidence in the two proceedings because a major issue for determination in both was and presumably will be, the cause of Mr Al-Shennag's dismissal by the Council in May 2000. 35There is a dispute between the parties in respect to the documents that should be accessed. On the one hand, Mr Woodcock seeks to access the documents set out in Annexure C to the affidavit of Ms Mulder. Mr Al-Shennag opposes access to some of these documents. 36It is not completely clear to me the range of documents that are caught by paragraph 4 of Mr Al-Shennag's notice of motion. They include protective disclosures made by Mr Al-Shennag; what are said to be "negative" documents that were considered to be part of the Council's personnel file of Mr Al-Shennag and letters forwarded by his wife to the General Manager of the Council which apparently became part of the evidence in the Commission proceedings. 37In my view, it would be most unsatisfactory to leave open to further debate whether the documents contained in the Commission's files may or may not be used in the Supreme Court proceedings. 38There is no basis to oppose access to statements that contain protected disclosures within the meaning of the Protected Disclosures Act 1994. A similar argument was rejected by McCallum J in Al-Shennag v Statewide Roads. Her Honour observed that "the protections identified in Pt 3 of the Act do not extend to creating any discreet immunity against disclosure of material that is otherwise liable to be disclosed in any legal proceeding." (At [24]). (See also [46]). I respectfully agree with her Honour. 39To the extent that documents contained in Mr Al-Shennag's personnel file, including letters from his wife to the General Manager of the Council, became part of the evidence in the proceedings before Tabbaa C, I see no basis as to why they should be treated differently to any other material that was admitted into evidence. 40Taking into account the grounds relied upon by Mr Woodcock, to which I have earlier referred, I propose to grant leave for unrestricted use of all documents contained in the Commission proceedings in matter No IRC 2447 of 2000 and No IRC 382 of 2001. 41I am satisfied that there is a proper basis to grant leave to Mr Woodcock in order for him to be able to use the documents contained in the Commission's files for the purpose of litigation in the Supreme Court proceedings commenced by Mr Al-Shennag. 42I am also satisfied that there are special circumstances warranting the release of Mr Woodcock from any implied undertaking that the Commission's documents could only be used for the purposes of the proceedings in which they were created. I consider that the material in the Commission's files is relevant, or sufficiently relevant, to the issues raised in the Supreme Court proceedings. Although the issues considered by Wilcox J in Springfield Nominees involved a case of a somewhat different nature, the principles set out by his Honour in that judgment, in my view, are applicable here. 43I would respectfully agree and adopt his Honour's reasoning with respect to the matter here under consideration. 44Mr Al-Shennag should also be released from his implied undertaking. 45The different approaches taken by each party in this matter brings into stark contrast, in my view, the difficulty in determining whether leave should be given in respect of all or only some of the material contained in the Commission's files. 46Accordingly, for these reasons as I have set out, I grant the relief sought by Mr Woodcock in his notice of motion. Mr Al-Shennag should also be granted leave. Leave should firstly be exercised by Mr Woodcock.

ORDER 47I make the following orders:

1. Mr Bill Woodcock is granted leave to use, in Supreme Court proceedings No 2005/269387, documents produced in those proceedings to the Supreme Court of New South Wales by the Industrial Relations Commission of New South Wales and Bankstown City Council, which are documents prepared for the purpose of and used in Industrial Relations Commission of New South Wales in proceedings Nos IRC 2447 of 2000 and IRC 382 of 2001.
2. Mr Al-Shennag is granted leave to use, in Supreme Court proceedings No 2005/269387, documents produced in those proceedings to the Supreme Court of New South Wales by the Industrial Relations Commission of New South Wales and Bankstown City Council, which are documents prepared for the purpose of and used in Industrial Relations Commission of New South Wales in proceedings Nos IRC 2447 of 2000 and IRC 382 of 2001.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 March 2011