Michael Cassino v National Australia Bank Ltd

Solicitors A J Macken & Co Solicitors SYDNEY LEGAL REPRESENTATIVES: RESPONDENT: The Hon J W Shaw QC

SOLICITORS: Clayton Utz Lawyers SYDNEY

JUDGMENT: - 6 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Application under s.106 of the Industrial Relations Act 1996

1 The applicant Michael Cassino has moved the Commission by notice of motion for orders the substance of which is to avoid the need to comply with Rule 161(2) of the Industrial Relations Commission Rules 1996 ("the Rules") which limits to fifty the number of documents in respect of which a notice to produce may be served. The documents the subject of the notice to produce served by the applicant on the respondent, the National Australia Bank Ltd., are said to be required to enable the conciliation of the matter to be effective.

2 The summons for relief in the substantive proceedings was filed on 27 June 2001. On 16 July 2001 the respondent filed a notice of motion for a declaration that the Commission is without jurisdiction in respect of the subject matter of the proceedings, and other consequential relief. The matter was mentioned on 2 August 2001 at which time it was indicated that the parties were willing to have the matter conciliated prior to the hearing of the respondent's motion. A program for filing a response and a reply thereto was then laid down to be completed by 21 September 2001. The matter was later fixed for conciliation on 10 December 2001 but the motion the subject of this interlocutory judgment effectively removed that as a possibility and accordingly the motion was dealt with in substitution. 3 The applicant moves on the affidavit of Anthony John Macken the solicitor for the applicant. Mr. Macken records the history of the notice to produce and the respondent's refusal to comply with it because it required production of more than fifty documents, contrary to Rule 161(2). The respondent had declined the applicant's invitation to waive this limitation. The affidavit contends that "the prospect of a meaningful conciliation conference being conducted would be impeded if the documents sought are not produced in good time prior to the conciliation conference".

4 This suggestion needs to be understood in the context of the summons for relief which seeks twelve month's pay in respect of notice of termination; a similar amount in respect of anticipated bonus and approximately $870,000 in respect of non-provision of, or loss of, share options. The summons appears to go forward on the basis that the applicant was treated unfavourably by comparison with other employees. The notice to produce seeks, among other things, the personnel files of relevant persons, approximately seven in number, each of which contain more than fifty documents.

5 The applicant adopts the position, as Mr. Macken's affidavit makes clear, that a meaningful conciliation conference cannot proceed without the applicant being aware of the relevant facts which would enable him to make an informed assessment of any potential settlement of his claim in the context of that wider picture.

6 The respondent relies upon the affidavit of Dr Graham Smith, the solicitor on the record for the respondent. Dr Smith attests that the applicant's personnel file and also those of two other named persons each contain in excess of fifty documents. He adverts also to his instructions that the personnel files of three other persons identified in the notice to produce are of equivalent size. There are also eleven documents in another category in the notice to produce. It would seem that if the personnel files were to be treated as one "document", the number of documents involved with the notice to produce would be considerably less than fifty. Such an approach would be irregular, of course; the reality is that the number of documents the subject of the notice would be closer to four hundred. I note that the respondent does not rely upon any physical difficulty in identifying, or producing, the documents the subject of the notice or any other ground but the conflict with the arbitrary limit provided by Rule 161(2). The respondent also relies on a number of legal arguments to which I now turn.

7 Mr. Shaw for the respondent argued that the numerical limitation should apply. It was clearly within the contemplation of the rule makers that this would be so. That limitation should only be displaced where special and exceptional circumstances are identified and here there has been no such identification. He referred to the judgment of Marks J in Morell v Sydney Organising Committee for the Olympic Games [2000] NSWIRComm 182 5 October 2000, an interlocutory judgment dealing with a motion by the respondent to set aside a notice to produce served by the applicant. That matter concerned issues of specificity rather than numerical excess; nevertheless it was relied on as authority for the proposition that the rules, relevantly in that case Rule 161(1)(b), were to be complied with. In that matter Marks J concluded as follows: I conclude that the notice does not comply with the provisions of r161(1)(b) because of the lack of specificity with respect to a document clearly identified in the notice. For reasons given all of the documents other than the terms of settlement are not amenable to any notice because they would be privileged. There must be grave doubt as to whether the terms of settlement are relevant to a fact in issue.

For these reasons I propose to set aside the notice to produce

8 Mr. Shaw referred to the conceptual primacy of conciliation within the scheme established to deal with summonses for relief under Part 9, Unfair Contracts, of the Act. He referred to the judgment of Hungerford J, Michael Younan-Sedrak v State of New South Wales (Department of Public Works & Services) [1999] NSWIRComm 371, 19 August 1999, in which His Honour, in an ex-tempore judgment, dealt with the procedural question whether the Court should list, prior to conciliation, a notice of motion by the respondent seeking certain aspects of an amended summons be struck out. His Honour concluded that "it is appropriate, indeed it is a requirement of section 109, for the whole of this matter to proceed to conciliation first in order to see it may be resolved". Reliance was also placed upon Rule 18A and the intent of that Rule to establish a procedural mechanism by which expense and delay could be minimised. Mr. Shaw noted that Rule 18A (7) provides: "Nothing in this Rule is to be taken to derogate from or otherwise limit the requirements of or the Commission's powers under Parts 9 and 13 of these Rules".

9 Part 9 relates to particulars and Part 13 to general procedures. Rule 88, waiver of compliance with procedural requirements, occurs in Part 13. On the other hand Rule 163, which authorises the Commission to "by order discharge, vary or extend" any of the obligations arising under Rule 161 and 162, occurs in Part 22 and is not afforded by Rule 18A the protection given to Parts 9 and 13.

10 Mr. Shaw also submitted that upon their true construction the rules intend that where access to more than fifty documents is sought the appropriate procedure is not via a notice to produce but rather by a request and order for discovery. Discovery is a discretionary procedure about which the respondent would have something to say were it sought.

11 I consider in this case the applicant has established sufficient cause to justify an order pursuant to Rule 163 waiving the limit on the number of documents so as to embrace those the subject of the notice to produce.

12 It is plain that the production of the relevant personnel files together with the separate and identifiable documents will produce no difficulty for the respondent. I take into the account the fact that the matter is at a pre-conciliation stage and I consider the applicant is reasonably entitled to information properly relevant to his claim, for the purposes of conciliation. The appropriate course for the Court to take is that which achieves that result by the least complicated and least expensive process.

13 There is, as was submitted, apparently no authority for the proposition that discovery ought be resorted to where access is sought for more than fifty documents. My view is that to impose necessarily such a burden on the parties would be to allow the form of the rules to assume a priority over the adoption of a practical approach to a resolution of the problem at hand. In Western Sydney Area Health Service v Gibson [2001] NSWIRComm 290 Full Bench Wright J President; Walton J Vice-President; Hungerford J dated 31 October 2001 in the course of reasons for judgment in an appeal from an interlocutory judgment, expressed the view that: "…the rules should not act so as to frustrate or otherwise limit the requirements of justice: see Harding v Bourke (2000) 48 NSWLR 598 at 603 (per Mason P, with whom Meagher and Heydon JJA agreed)"

14 In the circumstances of this case, I consider the Court should take the most convenient course and not regard the rules as imposing some form of principled strait-jacket.

15 The relevant orders sought are: 1. The limitation in Rule 161(2) of the Industrial Relations Commission Rules 1996 ("the Rules") be waived pursuant to Rule 88 and/or 163 of the Rules in respect of the Notice to Produce of the Applicant served on the Respondent on 14 November 2001.

2. The Respondent be directed to respond to the Notice to Produce served on the Respondent on 14 November 2001 within 14 days of the Order or Orders of the Commission sought pursuant to this Notice of Motion;

16 I am prepared to make those orders, subject to order 2 being in the following terms: The respondent is directed to respond to the notice to produce served on the respondent on the 14 November 2001 within 14 days hereof.

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