Industrial Relations Commission of New South Wales in Court Session CITATION : Hitchcock v CSR Limited [2002] NSWIRComm 170 APPLICANTS: James Hitchcock Ida Hitchcock PARTIES : RESPONDENTS: CSR Limited Monier PGH Holdings Limited FILE NUMBER: IRC 885 of 1998 CORAM: Wright J President CATCHWORDS : Unfair contract - Interlocutory application - Further discovery - Very late application - Circumstances relevant - Factors to be considered - Approach to procedural issues - Exercise of discretion - Prejudice - Application granted - Costs LEGISLATION CITED : Industrial Relations Act 1996 s 106 Hyde v Energy Australia (1999) 92 IR 409 CASES CITED : Van Rooy Machinery Pty Ltd v WorkCover Authority of New South Wales (2000) 97 IR 436 Western Sydney Area Health Service v Gibson (2001) 109 IR 359 HEARING DATES: 07/19/2002 DATE OF JUDGMENT: 07/22/2002 APPLICANTS: Mr P M Hall QC and Mr J P Berwick of counsel Gells Lawyers (Mr Michael Coffey) LEGAL REPRESENTATIVES: RESPONDENTS: Mr J P Phillips of counsel Harmers Workplace Lawyers (Mr Stephen Boatswain) JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: WRIGHT J, President Monday 22 July 2002 Matter No IRC 885 of 1998 JAMES HITCHCOCK AND ANOTHER v CSR LIMITED AND ANOTHER Application under s.106 of the Industrial Relations Act 1996 JUDGMENT [2002] NSWIRComm 170 1 Late Friday last, 19 July 2002 I ruled, in general terms, that the urgent relief sought by the applicants by way of Notice of Motion for further discovery should be granted. The generality of the ruling was conditioned in a number of ways. For example, that the ruling was subject to further brief submissions as to the form of the orders to be made, particularly as to the time frame for compliance with them by the respondents; that the making of formal orders on the motion would be deferred until today and that reasons, albeit brief reasons, would be provided when the matter resumed today. 2 Some other preliminary observations may be appropriate. First, it would have been clearly preferable for this application to be heard and determined by the trial judge. However, because her Honour was on leave when the motion was foreshadowed and then filed, and was then fully committed from return to duty to the commencement of the trial on 12 August next, that was not feasible. Second, the Court has been considerably assisted by helpful submissions and the cooperative approach adopted by all counsel in the proceedings: Mr Hall QC and Mr Berwick for the applicants, and Mr Phillips for the respondents. 3 The commendable approach adopted by the parties and those representing them enabled prompt identification of the key issues, those requiring determination and those, either expressly or implicitly, which whilst important, were the subject of appropriate concessions to enable the argument and the Court to concentrate on what became the limited issues which divided the parties on the determination of the motion. The matters conceded included the applicants' acceptance that their application for further discovery was very late although they demurred to any suggestion that it was so late that its grant would necessarily lead to the vacation of the trial dates. Unsurprisingly, the respondents took a different view on the last aspect. The respondents accepted that documents within the scope of the motion were relevant to the proceedings in the sense that there was an appropriate forensic purpose in the applicants seeking access to them. 4 The issue upon which the success or failure of the motion essentially depended was whether the nature and circumstances of the material sought and their intersection with the circumstances of the timing and delay of the making of the application were such that they justified the associated tangible possibility that the grant of the application at this stage may lead to a further (that is, for a second time) vacation of trial dates and possible related or other prejudice to the respondents. 5 The situation is complicated because the respondents contend that they expect (without being in a position to prove positively although they have evidence at a preliminary level to this effect) that there will be great logistical complexity and significant time taken in attending to the discovery sought. 6 Senior counsel for the applicant analysed in detail the evidence filed by the respondents in respect of Mr Brad Newell, by way of example, to show why the discovery was necessary. It was said that the necessity arose from the way in which the respondents have mounted their defence (that is, through the evidence filed) and also that the trial will be greatly complicated and likely to be prolonged if the discovery was not available. Mr Newell is no longer in the employ of the respondents but he was from September 1996 to December 1999 the respondents' National Marketing Manager. From the evidence, it may be concluded, but only for the purposes of the present application, that: (a) Mr Newell will be an important witness for the respondents; (b) the applicants have had his evidence for a long time; it was filed on 24 November 2000; (c) the respondents have set up an affirmative defence or are seeking to justify the actions they took which directly or indirectly impacted adversely on the applicants' business, on the basis that these actions were taken only because of commercial prudence (or perhaps because of commercial necessity; certainly they were steps open on a responsible commercial basis) and not with any intention to affect adversely the applicants' business; (d) many of the documents sought are likely (if they exist) to be necessary to be available to those representing the applicants if they are to test effectively Mr Newell's evidence and to prepare therefor; (e) without that material, the applicants are likely to object, and to object successfully, to the adducing of his evidence in-chief, and this, in turn, is likely to lead to procedural complexity at the trial, such as the respondents seeking leave to adduce further oral evidence from the witness possibly by reference to some of the kinds of documents the subject of the application; (f) in preparing his evidence Mr Newell is likely to have had available documents of the kind now sought or, if not, at least a good recollection of events which such documents, to the extent they may exist, will evidence or refer to. 7 There is no way in which any ruling on the motion will be equally satisfactory to both sets of parties. That however is not the test. This Court and its predecessors have always dealt with procedural issues in accordance with "modern judicial practice", on an essentially pragmatic basis (see, for example, Hyde v Energy Australia (1999) 92 IR 409 at 423, Western Sydney Area Health Service v Gibson (2001) 109 IR 359 at [24] and the cases cited therein). 8 That may be described as "coming down to the proposition of doing justice between the parties and ensuring the proper administration of justice": Van Rooy Machinery Pty Ltd v WorkCover Authority of New South Wales (2000) 97 IR 436 at [33]. The present proceedings raise, as often occurs in such matters, the almost inevitable tension between, on the one hand, the competing and most important objective of ensuring complete and adequate compliance with procedural rules, directions and case management and, on the other hand, attempting to ensure that any final decision on the "merits" is based, so far as possible, on all reasonably available relevant material. 9 The difficulty here is the appropriate balance between the very significant delay in the applicants seeking the belated second round of discovery and the potential disadvantage, and perhaps prejudice, that will or may be occasioned to the respondents by the pressure which the grant of the application is likely to impose on them and the real prospect of the vacation, again, of trial dates a short time before the trial is to occur. 10 Giving those matters full weight, it seems to me that these additional considerations bring the balance slightly in favour of the grant of the application: (a) There is a tangible risk, on the present state of the material available to the applicants that they will not be able to test adequately the case the respondents raise by way of defence or justification. (b) In the absence of such material it is likely that the trial will be prolonged by objections to evidence, applications to adduce oral evidence and the like. (c) Much of the material now sought would have been, or should have been, available to the respondents in the preparation of their defence including as to making the decision to defend the case in the way which now appears to be contemplated. (d) Although it is likely that the grant of the application will lead to the vacation of the trial dates, that is not yet entirely clear. For example, if the material sought is largely material actually or constructively available to the respondents or their witnesses in the preparation of the evidence, an adjournment may not be necessary or even appropriate. (e) The Court is not satisfied that any prejudice which is shown to be caused to the respondents by the grant of the application could not be adequately dealt with by an appropriate order for costs. 11 The last comment is not, of course, to be taken as indicating that any costs order is now appropriate or might be appropriate if the trial dates are vacated; or, if a costs order is appropriate, what it should be. 12 Finally, it has not been feasible in the time available to set out fully in these reasons the background to the present motion, the issues raised in the proceedings or the details of the submissions made by counsel at the hearing on Friday 19 last. These matters will be conveniently found, if necessary, in the transcript of the submissions made at that time. _________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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