James v Deutsche Australia Limited

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Monday 2 August 2004

Matter No IRC 1900 of 2002 ALAN WINSTON JAMES v DEUTSCHE AUSTRALIA LIMITED Application under s 106 of the Industrial Relations Act 1996

1 The applicant, Alan Winston James, has commenced proceedings against the respondent, Deutsche Australia Limited, seeking certain relief and orders under s 106 of the Industrial Relations Act 1996 ("the Act") arising out of his employment with, and the circumstances of the termination of that employment by, the respondent. The applicant has filed an affidavit in support of his claim in the proceedings.

2 Ross Elliot Johnstone, as plaintiff, has commenced proceedings in the Supreme Court of New South Wales against the respondent in these proceedings as defendant seeking certain relief in that court. Both Mr James, the applicant in these proceedings, and Mr Johnstone were relevantly employed by the respondent and Mr Johnstone has sought that Mr James give evidence on his behalf in his Supreme Court proceedings. The respondent in these proceedings has sought an order that the affidavit filed by Mr James may be used in connection with any evidence that Mr James may give in the Supreme Court proceedings and in particular for the purpose of cross-examination.

3 The application made by the respondent was the subject of a hearing before me on 20 July 2004 and arose tangentially in connection with another aspect of the proceedings with which I was dealing that day. The applicant consented to me dispensing with any formal requirements for the filing of documentation in connection with this application to allow me to deal with the matter without delay and without unnecessary costs being incurred. I have formally dispensed with the filing of any application by way of notice of motion and affidavit in support in connection with this discrete matter.

4 The relevant principles which apply to an application of this kind may be distilled from the judgment of Wilcox J in the Federal Court of Australia in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217. I summarised my understanding of the effect of his Honour's judgment in those proceedings and other authorities in Industrial Registrar of New South Wales v The Uniting Church in Australia Property Trust (NSW) [2003] NSWIRComm 387. I do not apprehend that the other members of the Full Bench of this Court in those proceedings, Boland J and Haylen J, disagreed with my judgment on this aspect in those proceedings. In Uniting Church I said: "[20] In Springfield, Wilcox J was called upon to determine whether a witness statement which had been filed in proceedings instituted in the Federal Court of Australia could be used by a stranger to those proceedings for the purpose of litigation then current before the Supreme Court of New South Wales. The witness statement had never been read or otherwise used in the Federal Court proceedings which had settled before going to trial. [21] Wilcox J held that the witness statement could not be used in the Supreme Court proceedings unless the maker of that statement had consented or the Federal Court was prepared to grant leave for its use. In adopting this approach his Honour utilised, by way of analogy, principles that applied to the use of documents which had been produced in proceedings pursuant to the discovery process. Such documents might be used for purposes other than the proceedings with respect to which they had been created either with the consent of the author or by leave of the Court in which the proceedings had been instituted. In those proceedings the author had not consented and it was necessary to determine the principles which would apply to the exercise of discretion as to whether leave would be granted. In the course of determining the approach to the proper exercise of the discretion of the Court his Honour observed that there were many factors which were relevant. He said: 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 of 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. (at 225) [22] It should be observed that Wilcox J based his approach on well-known principles developed in connection with the discovery process. These are exemplified by the decision of the House of Lords in Home Office v Harman [1983] 1 AC 280. The majority of their Lordships emphasised the invasive nature of the discovery process and the obligation imposed on legal practitioners by way of an implied undertaking not to use any discovered documents for any purpose whether collateral or ulterior beyond the purposes of the proceedings with respect to which discovery of the documents had occurred. As Lord Roskill observed, a party to the proceedings might seek the consent of the owner of the documents or the leave of the Court in which the proceedings had been taken for the use of the documents for some other purpose. His Lordship observed that he found it 'difficult to think of circumstances in which the Court might be willing to give such leave in favour of a stranger and against the wishes of the owner of the documents.' [23] This matter was revisited by the House of Lords in Crest Homes plc v Marks [1987] AC 829. In those proceedings the House of Lords permitted the use of documents which had been discovered pursuant to proceedings seeking an Anton Pillar order for the purpose of maintaining proceedings for contempt against the party who had discovered those documents in earlier proceedings between the same parties. These were said to create 'the very special circumstances' which detracted 'from the integrity of the implied undertaking given to the Court on behalf of the party obtaining an order for discovery'."

5 I should note at the outset that Mr James has not consented to the use of the affidavit filed in these proceedings by the respondent as defendant in the Supreme Court proceedings. In determining this matter I take into account that the leave sought is for a limited use only, namely for the purpose of cross-examination of Mr James with respect to evidence which he is to give in the Supreme Court proceedings. In addition, the party seeking the use of the affidavit is not a stranger to the proceedings or some disinterested third party but is the respondent to these proceedings and defendant in the Supreme Court proceedings. Both sets of proceedings deal with claims brought by former employees of the respondent, both of whom were working for the respondent at one stage at the same time.

6 Other features which, in my opinion, militate towards the grant of leave, is the fact that the affidavit was prepared solely for the purpose of litigation in this court and the limited use to which the affidavit is intended to be put. This is reflected in agreement reached between the parties as to the form of any order made although, I stress, the applicant has not consented to the making of such an order.

7 I hereby order: 1. The respondent is granted leave to use in proceedings No. 1780 of 2003 and No. 2288 of 2003 in the Supreme Court of New South Wales the affidavit of the applicant to be sworn and filed on or before 26 July 2004 in these proceedings provided that: (a) the applicant is called to give evidence in the Supreme Court proceedings; and (b) the affidavit is used solely for the cross-examination of the applicant or tendered in connection with that cross-examination. 2. Costs are reserved. 3. Liberty to apply.

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.