5 In submissions, Mr Healey, appearing for the applicants confirmed that the applicants had no objection to producing the documents sought after the respondents had put on their evidence. They also accepted that if the respondents then sought to put on further evidence as to that material, they should have the opportunity to do so and that the applicants should likewise have the opportunity to respond.
6 I enquired of Mr Healey how such an approach was consistent with the Court's ordinary procedures in applications brought under s 106 of the Industrial Relations Act ('the Act'), which are designed to ensure that litigation is not conducted by ambush or surprise and which seek to ensure that it is conducted in such a way, as to minimise costs to the parties. His explanation was that there would not be much delay resulting from the approach the applicants proposed and that it was the appropriate course to take, because the summonses amounted to the respondents being given discovery before suit, without putting on an appropriate motion.
7 It was also submitted that in proceedings such as this, the parties' affidavits effectively formed the pleadings and that the respondents ought not to be given access to this material, before they had put on their affidavit evidence. In any event, it was broadly submitted that the material sought was not relevant to the issues in the proceedings.
8 When I enquired of Mr Healey what date the applicants asserted was the date relevant to their claim, he advised that it was 2 August 2002. He could not explain how it was, in those circumstances, that the various financial records which were sought for periods concluding with the financial year ending June 2003, could not be relevant to what fell to be decided in the case. It was, however, argued that the documents fell into too broad a category, because they related to Excelsior College and not just the business unit in question in the proceedings.
9 For their part, the respondents sought that the motions be dismissed. They argued that given what was proposed by the applicants, the interests of justice would not be best served by the granting of the orders sought. All that would be achieved thereby was further delay and expense, given the necessity of the parties preparing and filing further affidavit material, once the material had been provided.
10 It was also explained that the summonses had been issued because of the view taken by the accountants retained by the respondents that the documents sought in the summonses were relevant to a proper consideration of accountant's reports served in the proceedings by the applicants. The documents were submitted to be relevant to the issues in the proceedings and in any event, there was in truth no objection to their production, all that was sought was a delay, which would unnecessarily protract the preparation of the respondents' evidence. Nor, it was noted, were any claims of privilege advanced.
11 In reply Mr Healey asserted that some documents might be privileged. However, no such claim was made in either motion and no such documents were identified.
12 Mr Healey submitted that the parties' pleadings in a case such as this, were comprised of the affidavits which they filed. I am satisfied that this is not an accurate reflection of the role which affidavit evidence plays in proceedings such as this. The parties' pleadings cannot be ignored. In these proceedings, the amended summonses on which it appears that the applicants move, were filed in April 2005. The summons in Mr Pak's case, for example, claims orders declaring the contract, arrangement or collateral arrangement between the various parties 'consisting of the negotiations to provide employment to the applicant and associated sale of Excelsior College Pty Ltd' unfair and void from its commencement, or from some other time. Significant consequential money orders are also sought. The summonses advance the claim in relation to documents said to be dated 5 July and 8 August 2002 and the claim is said to relate to a net profit figure of the business known as Excelsior College, for the year ended 30 June 2002.
13 It followed, given the claims advanced in the applicants' amended summonses, when considered with the submissions pressed by Mr Healey at the hearing of the motions, that the conclusion that the documents sought by the respondents are not relevant to anything which falls to be decided in these proceedings, was not properly available at this stage of the proceedings. To the contrary, it was the applicants' position that the respondents should be given access to the documents, but not until after they had put on their evidence.
14 While the applicants pressed a complaint that in seeking these documents, the respondents were but seeking to 'obfuscate' the real issues in the proceedings, it was apparent on the respective cases advanced that the respondents are presently obliged to file and serve their evidence by Monday next. They have not been relieved of that obligation. Given that the applicants complain they have long been denied the respondents' evidence, adherence to the timetable, while giving the respondents access to the documents they have sought for some time now, is the best way to ensure that the applicants are put in possession of the entirety of that evidence, as soon as possible.
15 The two summonses were returnable before the Court on 16 August. The applicants filing their motions did not stay what was required of Mr Rogers and Mr Prior by the summonses, which the Court had issued earlier in July, at the respondents' request. Accordingly, the documents in question ought to have been available to be produced to the Court on 16 August. I understand that the parties' legal representatives are now attending to that production, hopefully in a co-operative way.
16 Granting the motions would have led to the position where the applicants were denied all of the evidence upon which the respondents proposed to rely, particularly expert evidence, until some later point in time. Given Professor Kennett's expressed concern, I took the view that no good purpose would thereby have been achieved. To the contrary, further seemingly unnecessary costs would have been incurred.
17 It was for these reasons that the applicants' motions were dismissed. The costs of the motion were reserved.