Industrial Relations Commission of New South Wales in Court Session CITATION : Kenneth Allen v NatWest Markets Australia Ltd & Salomon Smith Barney Australia Limited [2000] NSWIRComm 54 MATTER NUMBER IRC 5777 OF 1998 APPLICANT: Kenneth Craig Allen FIRST RESPONDENT: NatWest Markets Australia Limited (ACN 002 987 957) SECOND RESPONDENT: Salomon Smith Barney Australia Pty Limited (ACN 081 472 664) THIRD RESPONDENT: County NatWest Australia Limited (ACN 002 910 652) PARTIES : FOURTH RESPONDENT: Salomon Smith Barney Australia Corporate Finance Pty Limited (ACN 003 309 804) _________________________________________________ MATTER NUMBER 584 OF 2000 FIRST APPLICANT: Salomon Smith Barney Australia Corporate Finance Pty Limited (ACN 003 309 804) SECOND APPLICANT: Salomon Smith Barney Australia Pty Limited (ACN 081 472 664) RESPONDENT: Kenneth Craig Allen FILE NUMBER: IRC 5777 of 1998 and IRC 584 of 2000 CORAM: Schmidt J CATCHWORDS : Unfair contract - interlocutory judgment - motion to amend summons and a question of discovery - amendment seeks to raise an allegation that employees unfairly benefited from unfair aspects of the redundancy arrangements - applicant directed to file and serve an affidavit in support of amendment - informal discovery failed to arrive at a final agreement - order for discovery made in relation to documents already given and some documents sought by applicant - access restricted to legal representatives - other documents sought not agreed to due to difficulty with expression and breadth HEARING DATES: 03/28/2000 EXTEMPORE JUDGMENT DATE : 03/28/2000 APPLICANT in IRC 5777 of 1998 RESPONDENT in IRC 584 of 2000: Mr Stephen Rothman, Senior Counsel SOLICITORS: Moray & Agnew Solicitors LEGAL REPRESENTATIVES: RESPONDENTS in IRC 5777 of 1998 APPLICANTS in IRC 584 of 2000 Mr Bruce Hodgkinson of counsel SOLICITORS: Freehill Hollingdale & Page Solicitors JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J DATE: 28 March 2000 MATTER NUMBER IRC 5777 OF 1998 KENNETH CRAIG ALLEN v NATWEST MARKETS AUSTRALIA LIMITED & SALOMON SMITH BARNEY AUSTRALIA LIMITED Application under s106 of the Industrial Relations Act 1996 MATTER NUMBER IRC 584 OF 2000 SALOMON SMITH BARNEY AUSTRALIA CORPORATE FINANCE PTY LIMITED & ANOR v KENNETH CRAIG ALLEN Application under s106 of the Industrial Relations Act 1996 JUDGMENT (extempore) 1 In this matter two issues arise for consideration at the moment. 2 The first is an amendment sought to the summons. That amendment is opposed by the respondent, having in mind that, at present, no affidavit in support of the amendment sworn by the applicant has been filed. 3 I propose to take this course in relation to the amendment which seeks to raise an allegation that three named employees unfairly benefited from unfair aspects of the redundancy arrangements which, it is said, applied to the applicant. 4 That course is, I direct the applicant to file and serve an affidavit in support of the amendment sought on or before 7 April 2000. If there is, as a result, no further objection to the amendment, the respondent should file and serve its affidavit on or before 28 April and the applicant should put on anything in reply thereto within a period of two weeks, subject to the need for any further discovery to be sought, in which event the parties should confer as to that matter and otherwise have liberty to approach to have that question brought back before me. 5 If there is any remaining objection to the amendment once the affidavit has been served, that again can be dealt with by having the matter re-listed for further argument. 6 The second matter which needs to be dealt with is the question of discovery which to date has been dealt with on an informal basis between the parties. That process failed to arrive at a final agreement as to questions of discovery. Exhibit 1 is a document which sets out the discovery which is now sought by the applicant. In a number of areas, informal discovery has been given and it is appropriate as to those documents to make a formal order. Those matters fall into clauses 2(b), 3, 8 and 10 of Exhibit 1. 7 In relation to the other areas in respect of which discovery is sought, I make orders in terms of clause 1, clause 2(a), clauses 4 and 5 and clause 9. I decline to make orders in terms of clauses 6 and 7. 8 While there is obvious force to the arguments pressed by the applicant as to the relevance of the material there sought, there is difficulty with the expression of what is sought and its breadth. If material of that kind is to be pursued, it needs to be re-worded and I direct the parties to confer as to those matters in the hope some agreement can be reached. 9 In relation to the other areas where I have ordered discovery, I am satisfied the necessary relevance has been demonstrated. 10 The parties are agreed that until further order, access to the documents produced be restricted to the parties' legal representatives. I so order. ------------------------ 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.