AL-SHENNAG v STATEWIDE ROADS PTY LIMITED & ANOR

Supreme Court of NSW|2009-03-03|Before: Hall J, Walmsley AJ

CITATION : AL-SHENNAG v STATEWIDE ROADS PTY LIMITED & ANOR [2009] NSWSC 210

DECISION : The application seeking a review is dismissed.

CATCHWORDS : Review of Registrar's interlocutory orders - pursuant to Part 49 Rule 49.19, Uniform Civil Procedure Rules 2005 - report for local council (former employer of plaintiff) allegedly defamatory of plaintiff - financial loss alleged - directions granting second defendant access (subject to first right of access to plaintiff) to file of Industrial Relations Commission (IRC) concerning litigation between plaintiff and former employer - not a "fishing" exercise - no requirement for second defendant to specify in advance documents on IRC file before access to file - file potentially relevant to losses claimed by plaintiff in defamation proceedings - no basis for an order setting aside subpoena re IRC

LEGISLATION CITED : Uniform Civil Procedure Rules 2005

CASES CITED : A-S v Statewide Roads Limited [2007] NSWSC 1472 Tomko v Palasty (No 2) [2007] NSWCA 369

PARTIES : AL-SHENNAG, Abdullah v STATEWIDE ROADS PTY LIMITED & ANOR

COUNSEL : P: In person D: M S White

SOLICITORS : P: In person D: Deacons

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ABDULLAH AL-SHENNAG v STATEWIDE ROADS LIMITED & ANOR

1 HIS HONOUR: The plaintiff commenced proceedings in this Court by Statement of Claim filed on 28 June 2005. The parties to the proceedings were Statewide Roads Limited (first defendant) and Mr Bill Woodcock (second defendant). 2 On application by the first defendant, this Court (Walmsley AJ) determined that Statewide Roads Limited was not a publisher of the matter complained of: A-S v Statewide Roads Limited [2007] NSWSC 1472. Subsequently, the Court of Appeal dismissed the appeal. 3 In addition, Walmsley AJ struck out one of the pleaded imputations set out in paragraph 13(f) of the Amended Statement of Claim (the Amended Statement of Claim was filed on 29 May 2007). 4 On 17 December 2008, Registrar Bradford made a number of interlocutory orders, the details of which are set out below. 5 A Defence was filed on behalf of the second defendant on 9 August 2007. 6 The plaintiff filed a Notice of Motion on 14 January 2009 in which he seeks orders by way of review of the Registrar's orders. The application is made pursuant to Part 49 Rule 49.19 of the Uniform Civil Procedure Rules 2005. 7 Before dealing with the application, I will briefly refer to some of the background facts and circumstances. 8 The plaintiff was employed by Bankstown City Council between 1989 and May 2000. He was engaged as a Senior Engineer. The plaintiff holds a number of engineering qualifications and in his work with the Council he was required, amongst other matters, to assess and process engineering aspects of developments. These included drainage plans. 9 The Council commissioned a report in 1999 from a company, Statewide Roads Technical Management Limited. The company's report related to three development applications. The plaintiff had been involved in the assessment of certain engineering matters concerning those applications. 10 Mr Woodcock, the second defendant, was employed by Statewide Roads Technical Management Limited. In that capacity, he prepared a report in relation to the development applications in questions. The report was sent to the Council on or about 9 July 1999. 11 In paragraph 8 of the Amended Statement of Claim, he alleges that the defendants published or gave authority or apparent authority to prepare and publish what he refers to as a defamatory report concerning him. He alleges that the report was sent to his employer, the Council, and to his union. He alleges further that the consequence of the report was to severely damage his reputation and his employability and career path as a professional engineer. 12 In these proceedings, the plaintiff claims, inter alia, substantial financial loss. 13 The plaintiff appeared on this application unrepresented. I note that there have been a number of applications heard and determined by members of this Court and it appears that on each occasion the plaintiff has not had legal representation. 14 The plaintiff alleges in the Amended Statement of Claim (paragraph 14) that his career as a professional engineer and his work relationship with the Council "… was greatly damaged and frustrated, and the Council, who had formerly employed the plaintiff, has ceased to do so, thereby causing the plaintiff damages and damaging the plaintiff's employability". 15 In the particulars of damage set out in paragraph 15 of the Amended Statement of Claim, it is asserted that the plaintiff has had difficulty in finding employment "… since being sacked by the Council in May 2000 and resultant loss of almost 7 years of income; this damage being likely to continue into the future". 16 The plaintiff sets out particulars of economic loss claimed, including compensatory damages.

The Registrar's orders 17 In the Notice of Motion, the plaintiff seeks orders by way of review to set aside the orders made by the Registrar on 17 December 2008. 18 Additional orders are sought in paragraphs 2 to 8, to which I will shortly refer. 19 The nature of the orders sought have been summarised in written submissions by the defendant as follows:-

(1) A review and setting aside of the directions made by Registrar Bradford on 17 December 2008 granting access to the parties to the file of the Industrial Relations Commission in proceedings numbered 6352 of 1999, 2447 of 2000 and 382 of 2001 (pursuant to the Uniform Civil Procedure Rules , Rule 49.19.

(2) An order setting aside an alleged subpoena issued by the defendant pursuant to the Uniform Civil Procedure Rules , Rule 33.4.

(3) An order for discovery or production of documents by the defendant.

(4) A stay of the proceedings pending an application by the plaintiff to the High Court of Australia for special leave to appeal from the orders of the Court of Appeal of 12 November 2008 in [2008] NSWCA 300. 20 The defendant opposes the orders sought by the plaintiff.

Plaintiff's evidence and submissions 21 On this application, the plaintiff relied upon his affidavit affirmed on 13 January 2009 together with the following:-

(1) Exhibit A: A letter from the plaintiff to Registrar Bradford dated 20 January 2008.

(2) Exhibit B: New South Wales Attorney General' Department document headed "Report on Access to Court Information" dated June 2008.

(3) Exhibit C: Judicial Commission of New South Wales document headed "Nuts and Bolts for Judicial Officers" dated 16 August 2005.

(4) Exhibit D: Defamation List Practice Note No. SC CL 4.

(5) Exhibit E: Document headed "Some aspects of privilege concerning communications with lawyers" . 22 In addition, the plaintiff handed up documents, which together were marked as MFI 1. They include a document dated 2 March 2009 headed "The plaintiff's reply to the contents of the affidavit of Leisa Mikkelsen of Deacons solicitors sworn on 25.2.09". 23 The defendant relied in this application upon the affidavit of Leisa Jane Mikkelsen sworn 25 February 2009. 24 A copy of the orders made by the Registrar on 17 December 2008 is included in Annexure C to Ms Mikkelsen's affidavit. 25 In his affidavit, the plaintiff sets out what he terms the "background and grounds" to the application. 26 In paragraph 3 of his affidavit, the plaintiff complains that he had not been informed by the defendant of what he described as "the subpoena" having been issued to the Industrial Relations Commission. He also maintained that the file contained "privileged and confidential documents". 27 The plaintiff also maintained that the defendants were, in effect, "fishing". 28 In paragraph 6 of the affidavit, the plaintiff stated that he requested the defendant to specify the documents to which they required access from the Industrial Relations Commission files and the reasons for seeking access to them. He also referred and relied upon the fact that application had been made by him to the High Court for special leave to appeal. 29 In paragraph 7 of his affidavit, the plaintiff refers to the fact that he opposed the application made on behalf of the defendant and, in particular, objected to the granting of leave for the defendant to inspect and have, what he referred to as, "general discoveries in all the documents in the IRC file, and to any documents prior to the serving of their defence". 30 The plaintiff alleges in his affidavit that the reasons and grounds advanced by him "were not considered properly or taken into account adequately by the registrar in the making of his orders on 17.12.08; moreover, his orders were also unclear and the plaintiff was unable to understand them fully, and therefore the registrar erred in law and facts in making his orders on 17.12.08 in the said circumstances" (affidavit, paragraph 7). 31 On 19 December 2008, the plaintiff wrote to the Registrar advising that he objected to the grant of leave to the defendants to have access to the Industrial Relations Commission files. He relied upon the same grounds and reasons as previously relied upon. 32 The plaintiff annexed to his affidavit correspondence with the Court Registry and with the defendants' solicitors. He stated that his application for special leave to appeal to the High Court was filed on 10 December 2008 and that on 7 January 2009, he filed his "written case and draft notice of appeal…". 33 In paragraph 10.2 of his affidavit, he asserted that the process of hearing and determining matters on related issues prior to the determination of what he termed the "current appeal in the High Court" would give rise to confusion and increased costs. 34 He also set out in his affidavit reliance upon certain documents which have been tendered in evidence in support of his opposition to the defendant having general access to the Industrial Relations Commission files. 35 At the hearing of the application, the plaintiff has reinforced the matters set out in his affidavit and, in particular, maintains that the Registrar was in error in permitting the defendants to have access to the files that have been produced by the Industrial Relations Commission. He maintains that there is an onus upon the defendant to specify the particular documents or classes of documents before any order for access may be granted. In addition, he maintained that the provision as to time by which he was granted first access to the files by the Registrar's order was insufficient given, in particular, his involvement in the application for Special Leave. I record at this point that the defendant has indicated that it would be prepared to extend the time fixed by the Registrar for that purpose.

Defendant's submissions 36 In the written submissions filed on behalf of the defendant, it is claimed, inter alia, that the directions made by the Registrar do not involve any injustice to the plaintiff. In this respect, the fact of "first access" to the plaintiff was significant and that he could therefore identify any documents in relation to which he could claim privilege or confidentiality. Reference was made to the defendants' agreement to extend time, to which I have already referred and that the plaintiff has simply not taken the opportunity available to him in that respect. 37 In paragraphs 7 and 8 of the written submissions it is contended:- "7. The documents in the IRC file are relevant to the issues in the proceedings. In paragraph 14 of the Amended Statement of Claim, the plaintiff alleges that the matter complained of caused him to lose his employment by the Blacktown City Council in May 2000. In the IRC proceedings, the plaintiff claimed he had been unfairly dismissed by the Council, and the IRC had occasion to assess the reasons why the plaintiff was dismissed: see Annexure B to the Mikkelsen affidavit. Proceedings number 382 of 2001 was an appeal from the dismissal of the plaintiff's claims at first instance. 8. The defendant needs to have access to the IRC files in order to assess which defences to the Amended Statement of Claim are available to him." 38 In relation to the orders seeking to set aside the subpoena, the defendant has correctly observed no occasion has arisen in this respect. The documents that have been produced by the Industrial Relations Commission were produced pursuant to a request made under Uniform Civil Procedure Rules, Rule 33.13. The request and the Rules require the Registrar to produce the documents. 39 In relation to the application for discovery, the defendant contends that the application in that respect is premature as the proceedings have not reached the discovery stage. 40 In relation to the application for Special Leave, it is observed that an application for a stay should be made to the Court of Appeal for the reasons set out in paragraph 11 of the written submissions. 41 In relation to the order made by Walmsley AJ striking out paragraph 13(f) of the Amended Statement of Claim, it is observed that his appeal from that determination was also dismissed by the Court of Appeal. The defendant contends that the prospects of the plaintiff obtaining Special Leave are slight. 42 The defendant has submitted that, if the proceedings continue in accordance with the directions of the Court for the completion of pleadings and in due course discovery and interrogatories and the serving of evidence, no prejudice will arise to the plaintiff. In that respect, it is also contended:- "The facts surrounding the publication of the report, the loss of the plaintiff's employment and the suffering by him of any damage will not change to any significant extent, or require any significant additional evidence, even if, in due course, the plaintiff succeeded in re-joining SWRL." (the former first defendant) (paragraph 17 of the written submissions). 43 Finally, the defendant relies, as a matter of discretion, upon the fact that the proceedings have been on foot since July 2005. The submission, in effect, is that the proceedings ought proceed and that the plaintiff, in making the application, is not assisting in the cheap, efficient and just disposal of the proceedings between the parties.

Scope of the review 44 The Court is permitted by Part 49, Rule 49.19 to review any direction, order, decision or other act of a Registrar and to make such order by way of confirmation, variation, discharge or otherwise as the Court thinks fit. 45 The review power conferred is not an appeal and, accordingly, is not subject to the limitations that apply to proceedings by way of appeal: Tomko v Palasty (No 2) [2007] NSWCA 369 at [6], [10], [50], [52]. 46 I approach the present application upon the basis that there is no onus on the plaintiff to demonstrate particular error whether it be an error of fact or as to principle in the orders made by the Registrar in the present proceedings. However, I do take into account that the Registrar has considered the matter and made the orders and these are to be taken into account in the overall review and assessment to be made on this application. This is particularly so where the decision of the Registrar in question and the order made relates to a matter of practice and procedure. Where substantive error is established, then, of course, this Court would consider reviewing the Registrar's decision and make such other order as it is authorised to make. 47 The procedure for having the files of another court, in this case the Industrial Relations Commission, requested and produced does not involve any irregularity or impropriety as suggested by the plaintiff. The real question is whether or not there are any grounds or reasons which would warrant a review of the orders that have been made by the Registrar. 48 In order to assess that question, it is relevant to determine whether or not there is any possible nexus or relationship between the issues dealt in the Industrial Relations Commission proceedings, both at first instance and on appeal, concerning the plaintiff and the issues that arise on his claim in the Amended Statement of Claim. 49 I have referred above to the allegations, contentions and particulars of loss relied upon by the plaintiff in the present proceedings. It is apparent that the issues that are said to have led to or been associated with the termination of his employment with the Council, which plainly were the subject matter of proceedings in the Industrial Relations Commission, are also associated with facts in issue arising on the Amended Statement of Claim. In particular, the grounds and reasons for the termination of the plaintiff's employment by the Council are directly relevant to a central issue in the present proceedings. 50 In those circumstances, the defendant was entitled to have the files of the Industrial Relations Commission produced, as has been done. 51 The question then remains as to whether or not, as a matter of practice and procedure, the Registrar was in any way in error in granting access on the basis upon which he did and, in that respect, the plaintiff contends that the Registrar ought not to have permitted access without the defendant specifying the particular documents or classes of documents said to relate to the facts in issue in the present proceedings. 52 I have no doubt that the files of the Industrial Relations Commission are substantial files and contain a great many documents. Insofar as there is any possibility that they include any confidential documents or documents to which the plaintiff is entitled to claim privilege, then plainly his rights have been fully protected by the orders made by the Registrar in granting him first right of access. That will provide him with the opportunity of making any claim for confidentiality or privilege. Accordingly, the Registrar's orders were fashioned in order to ensure that his rights in those respects are fully protected. There was no error in him doing so. 53 In unfair dismissal proceedings, it is not uncommon that the factual issues concerning an applicant's employment, his performance and the circumstances attending upon termination of employment are broad and wide-ranging, resulting in voluminous evidence concerning each of those matters amongst others. In the Statement of Claim, the plaintiff has specifically raised, inter alia, the following factual matters:-

(1) The alleged publication of the report and its distribution to the Council and to the Municipal Employees Union.

(2) Knowledge in various staff members of the Council of the claimed defamatory contents of the report about the plaintiff and his engineering work in the Council.

(3) Alleged communications between the Group Manager of the Civil Services Group and the General Manager, Mr Colley, in relation to the contents of the report.

(4) Specific criticisms said to have been raised in relation to the plaintiff's work on the three development applications which were said to have been disputed by the plaintiff.

(5) Communications with officers in the Human Resources Office of the Council concerning the contents of the report as it allegedly affected the plaintiff.

(6) The alleged damage to the plaintiff's reputation as a professional engineer, "… in the eyes of others including his employer (the Council) …" (Amended Statement of Claim, paragraph 12).

(7) The alleged damage done to the plaintiff's work relationship with his former employer allegedly occasioned by the report.

(8) The termination of the plaintiff's employment with the Council resulting in alleged loss and damage. 54 I do not consider that the right of access to documents produced by third parties (in this case, the Industrial Relations Commission) in the circumstances of the present matter, having regard to the issues in the present proceedings, was one subject to an obligation by the requesting party (the defendant in the present proceedings) to specify the documents or classes of documents to which access is sought. 55 As a matter of practicality where there is likely to be voluminous files, it will often be practical to impose such an obligation. The requesting party in different litigation in such a situation would have no knowledge or capacity to specify in advance the documents sought to be inspected under an order of the Court. The order made by the Registrar, as I have earlier stated, was a conventional matter of practice and procedure and no error has been demonstrated in relation to his decision and the orders made by him. To the contrary, I am of the opinion that the Registrar's orders were entirely correct and appropriately balanced the plaintiff's interests against those of the defendant by allowing him the right of first access to the files. 56 The plaintiff made no application to the Registrar for variation of the time in which he was to exercise his right of first access. In any event, the defendant indicated that it was prepared to extend the time. Instead, the plaintiff has chosen to challenge the orders by way of the current application for review. 57 I consider that the application seeking a review is without merit and should be dismissed. 58 In relation to the order setting aside what was said to be a subpoena, the application is wholly misconceived. The documents, as I have earlier stated, were made pursuant to a request under the Uniform Civil Procedure Rules, Rule 33.13. No irregularity or impropriety has been established. 59 In relation to any order for discovery and production of documents by the defendant, the plaintiff has the right to apply at the appropriate time for an appropriate order for discovery. 60 I do not consider that the issues determined by Walmsley AJ and by the Court of Appeal has any role to play in relation to the present application. 61 Accordingly, I confirm the orders made by the Registrar on 17 December 2008. 62 The plaintiff is to pay the defendants' costs of the present application. **********

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Cited By (15)