Surfing Hardware International Holdings Pty Limited and Ors v William McCausland and Anor

PARTIES: FOURTH APPELLANT Timothy Bosher

FIFTH APPELLANT Timothy Ford

FIRST RESPONDENT William McCausland

SECOND RESPONDENT Yvonne McCausland

CORAM: Walton J Acting President; Boland J; Backman J

CATCHWORDS: Appeal - Interlocutory applications - Notice of motion by respondents to re-open appeal proceedings on grounds that appellants breached confidentiality undertakings given to the Court - Application by appellants to strike out respondents motion on jurisdictional grounds - Whether appellants jurisdictional challenge should be heard as a threshold matter - Held that jurisdictional issue should be determined before consideration is given to application to re-open.

Hollingsworth v Commissioner of Police (2007) 160 IR 456 Nagle (T/as W D and J L Nagle & Sons) v Tilburg & Anor (1993) 51 IR 8 CASES CITED: Ove Arup Pty Ltd v WorkCover Authority (NSW) (Inspector Mansell) (2005) 141 IR 78 Valda June Kerrison v New South Wales Technical and Further Education Commission [2007] NSWIRComm 140 Virtue v New South Wales Department of Education and Training (1999) 92 IR 428

HEARING DATES: 29 June 2007 EXTEMPORE JUDGMENT DATE: 29 June 2007

APPELLANTS Mr P Moorhouse of counsel

Solicitor: Mr G Robertson Harmers Workplace Lawyers LEGAL REPRESENTATIVES: RESPONDENTS Mr P Newall of counsel

Solicitor: Mr G Dunstan Dunstan Legal

CORAM: WALTON J,ACTING-PRESIDENT BOLAND J BACKMAN J 29 June 2007

Surfing Hardware International Holdings Pty Limited and Ors v William McCausland and Anor (No 5)

Application by Surfing Hardware International Holdings Pty Limited for leave to appeal and appeal against a judgment of Justice Marks given on 14 July 2006 in Matter Nos. IRC 5174 of 2004 and IRC 4589 of 2005

INTERLOCUTORY JUDGMENT OF THE COURT Extempore [2007] NSWIRComm 167

1 On 31 May 2007 the respondents filed a notice of motion in Matter No IRC 2876 of 2006 (the appeal proceedings) seeking, inter alia, to re-open the appeal so as to permit the admission of new evidence and to enable submissions to be made in relation to that evidence. In the alternative, the McCauslands sought an order that the appellants' solicitors, Harmers Workplace Lawyers, be restrained from acting in the substantive proceedings, that is, Matter Nos IRC 5174 of 2004 and 4589 of 2005. The essential basis of the motion was that Harmers had breached confidentiality undertakings provided to the Court pursuant to orders made by the Full Bench in the appeal proceedings. 2 Mr P Newall of counsel for the McCauslands proposed short minutes of order setting a timetable for the filing and serving of material relevant to the hearing of the motion, including an amended motion. The short minutes also sought the following order: Harmers Workplace Lawyers are restrained from carrying out any work in Matters IRC No 5174 of 2004 and IRC No 4589 of 2005 until the date of hearing of the Motion or further Order of the Court. 3 Six of the seven orders sought were made by consent. That is to say, the following orders were made by consent: (1) The respondents are to file and serve any amended motion on or before 13 June 2007.

(2) Any summons to produce documents are to be served by 18 June 2007.

(3) The appellants are to file and serve any evidentiary material on which they intend to rely by 19 June 2007.

(4) The respondents are to file and serve any evidentiary material in reply by 21 June 2007.

(5) The respondents' amended notice of motion is set down for hearing at 10.00 am on Tuesday 31 July 2007.

(6) Liberty to apply on 48 hours' notice. 4 The Full Bench then provided a short adjournment after which it heard argument in relation to the respondents' proposed order restraining Harmers from acting in the substantive proceedings. Having heard the parties, in an extempore decision, the Full Bench declined to make the order sought. 5 In accordance with order (1) of the short minutes of order made by the Full Bench on 8 June, the respondents on 14 June 2007 filed their amended motion to re-open. On 26 June 2007, the Full Bench listed for directions an application by the appellants, by correspondence dated 27 June, to vary the aforementioned orders because of their failure to adhere to order (3). At that time the appellants identified that they had filed a notice of motion seeking, inter alia, that the respondents' amended notice of motion be struck out and that a summons for production dated 18 June 2007 issued at the request of the respondents also be struck out. 6 The respondents indicated their opposition to the appellants' motion, noting that the appellants had not complied with order (3) of 8 June 2007 that they file and serve any evidentiary materials by 19 June 2007. Harmers indicated they were unable to comply because of a concern that in doing so they may breach the confidentiality undertakings filed with the Court. 7 The Full Bench directed that the following issues be listed for hearing on 29 June 2007: (1) Any application to vary the consent orders made on 8 June 2007;

(2) Any application to have varied or alleviated the undertakings formerly given by Harmers, such matter to proceed by way of notice of motion;

(3) The appellants' application to strike out the summons to produce issued at the request of the respondents; and

(4) Any application to vacate the program fixed by the short minutes of order made on 8 June 2007 including any application to vacate the date set for hearing of the respondents' motion (31 July), in favour of hearing the appellants' motion filed on 26 June 2007.

The parties were directed to file an outline of their submissions relating to the aforementioned issues and that step was taken. 8 On 8 June 2007, the appellants came to the Court agreeing to a program for the hearing of the respondents' motion. Less than three weeks later the appellants completely reversed their position and now seek to have that program vacated in favour of their strike-out motion and belatedly claim they were unable to comply with the order to file evidence because it would breach confidentiality undertakings. 9 We regard the appellants' conduct, or probably more appropriately their legal advisors, as lamentable. The matters raised with the Full Bench on 26 June, namely, foreshadowing the strike out application and the difficulty with filing evidence because of the confidentiality undertakings, could easily have been raised on 8 June. Both matters, it seems to us, should have been obvious considerations in any deliberation as to how to respond to the short minutes proposed by the respondents in relation to their motion. The effect of the appellants' conduct has been to add unnecessary costs to what has already been incurred by the parties in the course of interlocutory jousting that is of increasing concern to us. 10 Nevertheless, there is a jurisdictional issue raised for our consideration. At the commencement of the proceedings today we ruled that we would first hear the procedural question raised by the appellants concerning the strike-out motion on jurisdictional grounds, that is order (4) described in [7] above. Both parties accepted, in considering that issue, we should approach the question consistently with authorities governing the disposition of such matters, such as Virtue v New South Wales Department of Education and Training (1999) 92 IR 428. Thus, the evidence relied upon by the respondents in their amended motion of 14 June would be taken at its highest, subject to the further contention by the respondents that they should be permitted in that respect to call on a summons to produce otherwise relied upon in their amended motion to re-open of 14 June.

11 We agree generally with that approach except we will rule separately on the question of the summons. We consider that the resolution of this procedural application should be also undertaken in conformity with the well-settled principles of this Court as to the hearing of strike-out motions raising jurisdictional or other preliminary issues: see, for example, Nagle (T/as W D and J L Nagle & Sons) v Tilburg & Anor (1993) 51 IR 8. Clearly, the issues need to be assessed in the light of the particular circumstances here applying, where the underpinning primary application concerns an application to re-open appeal proceedings. 12 On the present state of the authorities we consider the appellants have at least an arguable case that the Court does not have jurisdiction to re-open the appeal in the manner proposed by the respondents. It should be emphasised, however, that at this stage we put the appellants' case no higher than arguable. It seems to us that the circumstances in which the re-opening is sought are different in a number of respects to the circumstances that existed in Ove Arup Pty Ltd v WorkCover Authority (NSW) (Inspector Mansell) (2005) 141 IR 78, Hollingsworth v Commissioner of Police (2007) 160 IR 456 and Valda June Kerrison v New South Wales Technical and Further Education Commission [2007] NSWIRComm 140, authorities relied upon by the appellants in their application to have the present program vacated, and that other considerations may be relevant. Having said that, we note the appellants' alternative submission that the Court would not, in any event, exercise its discretion to re-open the appeal because it could not be demonstrated that there existed an irremediable injustice. Again, we think this contention is arguable upon the basis that it is contended there is no material provided to justify re-opening the appeal judgment because the respondents have available to them an alternative remedy in the substantive proceedings. 13 Given the existence of at least an arguable case regarding the jurisdictional issue and, given that the procedural approach contended by the appellants is the one that is most likely to facilitate the just, quick and cheap resolution of the issues in these proceedings, we consider the appropriate course is to vacate the present program and to make directions for the purpose of hearing the appellants' motion on 31 July 2007. 14 We particularly have in mind, in this respect, that the resolution of the jurisdictional issue, and the related consideration of the exercise of a discretion to re-open, would be determined upon the evidence brought by the respondents taken at its highest, as opposed to evidence to be adduced by the appellants in reply in the case to re-open. Whilst we accept that the parties may reach an accommodation to permit the appellants to go into evidence in that way (notwithstanding the information barrier erected by our earlier orders), we are not confident that those arrangements may not, even inadvertently, result in some potential erosion of those barriers and the undertakings given by solicitors as a consequence of them. This is not to say that those matters may not need to be grappled with if the proceedings are to be re-opened, but that it is a balancing factor in favour of granting the appellants' procedural application. It is also a factor in favour of that application in terms of time and cost. We also consider these factors weigh against the approach agitated by Mr Newall of counsel for the respondents that we could consider both jurisdictional issues and issues associated with the application to re-open in a combined proceeding. 15 This will mean that we will stand over the respondents' amended notice of motion pending determination of the appellants' motion. It will also mean that it becomes unnecessary to rule on the issues arising in relation to the summons to produce, save as earlier noted, and the appellants' application to vary the confidentiality undertakings filed with the Court, at least until the appellants' notice of motion is determined. We have also determined to refuse leave to the respondents to pursue their summons to produce of 18 June for the purposes of hearing the appellants' motion of 26 June as to the jurisdictional and related issues. 16 Accordingly, we make the following orders:

(1) Order 3, 4 and 5 of the orders made by the Full Bench on 8 June 2007 are vacated.

(2) The appellants shall file and serve an outline of submissions in support of their notice of motion by 9 July 2007.

(3) The respondents shall file and serve an outline of submissions in reply to the appellants' notice of motion by 16 July 2007.

(4) The appellants shall file and serve any outline of submissions in reply by 23 July 2007.

(5) The appellants' notice of motion filed on 26 June 2007 is set down for hearing on 31 July 2007 at 10.00 am.

(6) The respondents' amended notice of motion filed on 14 June 2007 is stood over pending determination of the appellants' notice of motion filed on 26 June 2007.

(7) The summons for production filed on 18 June 2007 and directed to Harmers Workplace Lawyers is not returnable on 4 July 2007 and is stood over subject to further order of the Full Bench.

(8) The appellants' notice of motion filed on 27 June 2007 seeking the release of persons from undertakings given to the Court to the extent necessary to allow them to give evidence in response to the respondents' notice of motion filed on 14 June 2007 is stood over pending determination of the appellants' notice of motion filed on 26 June 2007.

(9) The parties have liberty to apply on 48 hours' notice, which, if exercised within the period of the next two weeks, should be done by an approach to the Chambers of Boland J . 17 We note that the question of costs of the appeal is yet to be determined. We propose to reserve our position on costs until at least we have heard the appellants' motion on 31 July 2007 except that in relation to the costs associated with the proceedings on 26 June 2007 we order that the appellants shall pay the respondents' costs of those proceedings.

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.