National Australia Bank Ltd v Cassino

APPELLANT: The Hon J W Shaw QC and Mr A Searle Clayton Utz, Lawyers (Dr Graham Smith) LEGAL REPRESENTATIVES: RESPONDENT: Mr A B Gotting of counsel A J Macken & Co., Lawyers (Mr A J Macken)

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH

CORAM: WRIGHT J, President BOLAND J HAYLEN J

Matter No IRC 8631 of 2001 NATIONAL AUSTRALIA BANK LIMITED v MICHAEL CASSINO Application for leave to appeal and appeal against a decision of Justice Peterson given on 14 December 2001 in Matter No IRC 4328 of 2001 JUDGMENT OF THE COURT (Extempore) [2002] NSWIRComm 241

1 The National Australia Bank Limited seeks to overturn the judgment of Peterson J delivered on 14 December 2001 in which his Honour made orders in an interlocutory application in proceedings pursuant to s 106 of the Industrial Relations Act 1996. The respondent to these proceedings is Mr Michael Cassino who was the applicant at first instance. Mr Cassino made the interlocutory application below. The orders he sought were, in substance, to "avoid the need to comply with r 161(2) of the Industrial Relations Commission Rules 1996 which limits to 50 the number of documents in respect of which a notice to produce may be served".

2 His Honour granted the respondent's application. His Honour's judgment has now been reported: Cassino v National Australia Bank Ltd (2001) 110 IR 483. The Bank seeks leave to appeal, and subject to leave being granted, appeals. For convenience, it shall be referred to as the appellant.

3 His Honour came to the conclusion he did on essentially five bases, as follows (as extracted and paraphrased from paragraphs [11] to [14] of his Honour's judgment): 1. The applicant had established sufficient cause to justify an order pursuant to r 163 waiving the limit on the number of documents to embrace those the subject of the notice to produce. 2. The production of the relevant documents (which were largely personnel files) would produce no difficulty for the appellant.

The matter is at a pre-conciliation stage and the respondent 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. 4. Although there is apparently no authority for the proposition that discovery ought to be resorted to where access is sought for more than 50 documents, 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 the resolution of the problem at hand. In that respect, his Honour cited the following passage from the Full Bench judgment of this Court in Western Sydney Area Health Service v Gibson (2001) 109 IR 359 at 367: [T]he 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) 5. In the circumstances of the case, the Court should take the most convenient course and not regard the rules as imposing some form of principled strait-jacket.

4 The background to the s 106 proceedings and the notice of motion and also the rationale proffered by the respondent for seeking interlocutory relief are conveniently set out in his Honour's judgment in this way: [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. 5 The opposition of the appellant to the relief sought at first instance appears to have been on two bases. The first of those which might be described as a "merits" basis was described by his Honour as follows: [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). ... 6 The appellant also relied on a number of legal arguments which have in substance been reiterated on appeal and, in view of the conclusion we have reached in the matter it is convenient to deal with those matters in an abbreviated form. Similarly, we do not consider it is necessary to set out the terms of the rules referred to, that is rr 161, 162 and 163 of the Industrial Relations Commission Rules 1996. However, before we deal with the appellant's arguments, we should make some observations as to the appropriateness and availability of appeals to the Full Bench of this Court in respect of interlocutory procedural motions. Such appeals, as with all other appeals from single Members, are subject to the leave requirements in s 188 of the Industrial Relations Act. That provision was one of the considerations which led the Full Bench in Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 to observe (at 392 - 393) that "[t]he provisions of the Act as to appeals give primacy to first instance decision making in a manner not earlier found in industrial legislation in this State".

7 The general situation as to leave to appeal is to that extent somewhat different to that in other jurisdictions such as the Supreme Court although there appeals of the present kind are also subject to leave. We consider that a similar reticence to grant leave to appeal as to such matters as occurs in other jurisdictions should at least equally apply here. That is the approach which has been taken since the 1996 Act came into force and also by this Court's predecessors. For example, in Caltex Petroleum Pty Limited v Harmer (1999) 92 IR 264 at 265 - 266 the following statement of principle was made: Principles as to interlocutory appeals So far as we are aware, these proceedings are the first occasion on which this Court has had an opportunity to consider the principles applicable to appeals from interlocutory procedural decisions since the Industrial Relations Act 1996 (the Act) came into force some three years ago.

It is therefore appropriate for this Full Bench to state shortly the appropriate approach which should be adopted in relation to such appeals. The predecessors of this Court and Commission, in line with the approach of the ordinary courts, have generally deprecated and discouraged such interlocutory appeals: see, for example Re Social & Community Welfare Services (State) Award and Other Awards (1984) 9 IR 305; Parramatta City Council v Health and Building Surveyors Association (NSW) (1988) 26 IR 398 at 401-402; Re Laundry Employees (State) Award (No 2) (1993) 49 IR 91 at 103; Chamber of Manufactures of New South Wales v Australian Chamber of Manufactures, New South Wales Branch (1994) 56 IR 307 at 310-311.

The approach in this jurisdiction has paralleled that of the ordinary courts which is set out in, for example, Re the Will of F B Gilbert (1946) 46 SR (NSW) 318 at 323; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177; Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399-400; Partnership Pacific Ltd v Killen (unreported, Court of Appeal, but noted in Ritchie's Supreme Court Procedure NSW, Vol 2, at paragraph 13013); Wentworth v Rogers (No 3) (1986) 6 NSWLR 642 at 644; Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (No 4) (1986) 6 NSWLR 674 at 685; Bank of New Zealand v Spedley Securities Ltd (In Liq) (1992) 27 NSWLR 91 at 95. The classic statement of the rationale for the approach adopted by the courts is the statement of Sir Frederick Jordan CJ in Re the Will of F B Gilbert where his Honour said at 323: "… I am of the opinion that … there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal. " [emphasis added]

8 The approach in principle is indeed further emphasised in this jurisdiction by the Legislature including, in the 1996 legislation, s 191(3) which obliges the Full Bench to "follow the principles applying to appeals from discretionary decisions". The significance of this situation has been recently considered and, in the course of that consideration, emphasised in a number of recent Full Bench decisions. See, for example, Western Sydney Area Health Service v Gibson and Pacific Healthcare (Australia) Ltd v AHI Healthcare Systems Pty Limited [2001] NSWIRComm 297 and the references in these cases to the judgment of the Court of Appeal in Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274. The significance of s 191(3) and those authorities is that interlocutory procedural motions invariably involve the exercise of judicial discretion and often depend essentially upon exercises of discretion. That is certainly the situation here. In addition, Peterson J's judgment was consistent with the longstanding approach of this Court and its predecessors which has always been to deal with procedural issues in accordance with "modern judicial practice", on a essentially pragmatic basis: see, for example, Hyde v Energy Australia (1999) 92 IR 409 at 423, Western Sydney Area Health Service v Gibson at [24] and the cases cited therein, and Hitchcock v CSR Limited [2002] NSWIRComm 170 at [7] to [8].

9 The extent to which the appeal might raise, or arguably raise, matters of a non-discretionary nature requires brief reference to the way in which the matter was argued at first instance and has been argued today. The bases of the appellant's submissions are helpfully set out in paragraph 12 of its written submissions and contain the following eight points, albeit expressed in summary form: 1. The scheme established to deal with summonses for relief under section 106 of the Act enshrined the conceptual primacy of conciliation: Younan-Sedrak v State of NSW (Department of Public Works and Services) [1999] NSWIRComm 371 (19 August 1999);

2. Conciliation does not require discovery or the production of documents for its efficient or effective conduct;

3. Rule 161 (2) was a deliberate policy decision made by the rule makers, a committee of judges of the court, that persons seeking a substantial number of documents should obtain them by way of an order for discovery pursuant to Rule 162;

Rule 161 of the Commission replicates Part 23, rule 2 of the Supreme Court rules. About this rule, the editors of Ritchie's Supreme Court Procedure NSW say: The intention underlying r2 and r3 is that the parties are not to be subjected to any kind of general discovery obligation unless and express order for discovery is made by the court.

The numerical restriction is a requirement of substance. Prima facie the numerical restriction should apply: Morrell v Sydney Organising Committee for the Olympic Games [2000] NSWIRComm 182;

The limitation should be displaced only where special and exceptional circumstances are identified;

No such identification had been made by the applicant;

The proper construction of the Rules discloses an intention that where access to more than 50 documents is sought, the appropriate procedure is an order for discovery. 10 The first proposition is undoubtedly correct and, indeed, it is not controversial. It appears to have been common ground between the parties both at first instance and on appeal. Peterson J appeared to have accepted its correctness. As to the second proposition, although the situation might be described as the usual situation, it is an over simplification of the procedures established by r 18A in 1999 to say that discovery or the production of documents should never occur before conciliation takes place.

11 As to propositions 3 to 8, although many of those matters are rather trite propositions, to the extent that they raise matters of form rather than substance, they are of little significance. However, to the extent that matters of substance or of prejudice are properly raised, they are to be considered by the judge dealing with procedural issues to ensure that injustice does not occur. In this case, it cannot be said that the appellant was not able to place before his Honour the substance of its concerns in the submissions it made in response to the motion dealt with by his Honour. Nor could it be said that his Honour failed to take those concerns into account. Finally, and in this respect reference may be made particularly to propositions 6 and 7, the respondent identified the reasons why the ameliorating order should be granted. His Honour adopted those reasons. We consider that the approach his Honour took was open to him in terms of his assessment of the material and of the case before him. We do not consider that there was any mis-exercise of discretion or failure to exercise the discretion correctly. It would therefore be inappropriate to grant leave to appeal. In any event, the appellant's sixth proposition is too broadly expressed.

12 Finally, the appellant relied upon the judgment of Schmidt J in Fish v Solution 6 Holdings Limited [2002] NSWIRComm 93, and a number of statements of principle in that judgment. We do not consider it necessary to consider that judgment in detail. Indeed, to the extent that her Honour made some statements of principle as to the procedures under r 18A we do not see any reason to differ from her general approach. We consider that the conclusion reached by her Honour in that case, however, depended largely upon the circumstance that the matter under consideration was a wide ranging request for particulars which was described in submissions as " 'pro forma' requests for particulars here produced by word processor … typical of a practice which had emerged amongst some firms of solicitors, which was entirely contrary to the purpose of [r 18A]". We do not consider that her Honour was intending to, or did, lay down any general ruling that orders for particulars (or by analogy, discovery, production of documents, etc) should not (in the sense of never) be made in proceedings to which r 18A applied. Her Honour stated quite clearly at paragraph [25] of the judgment that the applicant's resistance to the provision of further particulars should be upheld because "[t]he pleadings in the summons and the answers given in relation to the particulars sought [were] adequate to meet the obligations imposed upon them by Rule 18A".

13 The application for leave to appeal should be refused. The appeal is dismissed. Orders accordingly are made. We will hear the parties as to costs [counsel then addressed as to costs and the Court proceeded as follows].

14 The Court makes the following additional orders: 3. The appellant pay the respondent's costs of the appeal in the sum as agreed or in default of agreement, as assessed.

4. The stay granted in this matter is dissolved with effect from 25 September 2002 and the intention of this order is that it becomes incumbent upon the appellant to comply with the order made by Peterson J on that date.

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