Industrial Relations Commission of New South Wales in Court Session CITATION: Clarke v Divisional Sercurity (Aust) Pty Ltd and ors [2005] NSWIRComm 41 APPLICANT Robert Clarke FIRST RESPONDENT Divisional Security (Aust) Pty Ltd PARTIES: SECOND RESPONDENT Starfinn Pty Ltd THIRD RESPONDENT Lubo Raskovic FILE NUMBER(S): 6254 of 2002 CORAM: Marks J CATCHWORDS: Application for anton pillar order - late disclosure of documentation - withdrawal of undertaking to preserve primary documentation - strong prima facie case for significance of relevant documentation - necessary risk that material may be destroyed - anton pillar orders made. CASES CITED: George Rofail v Landmark Recruiting Pty Ltd and ors [2004] NSWIRComm 260 HEARING DATES: 02/03/2005 DATE OF JUDGMENT: 02/28/2005 APPLICANT Solicitor: Julian Sefton LEGAL REPRESENTATIVES: Employment Lawyers JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Monday 28 February 2005 Matter No IRC 6254 of 2002 ROBERT CLARKE v DIVISIONAL SECURITY (AUST) PTY LTD AND ORS Application under s 106 of the Industrial Relations Act 1996 REASONS FOR JUDGMENT ON APPLICATION FOR ANTON PILLER ORDER 1 On 4 February 2005 I made certain orders in these proceedings on the ex parte application of the applicant of the kind known as "anton pillar orders" directed to the first respondent, Divisional Security (Aust) Pty Ltd. 2 The principles which apply to the making of anton pillar orders and the relevant authorities have been conveniently summarised in a judgment of Schmidt J of this Court in George Rofail v Landmark Recruiting Pty Ltd and ors [2004] NSWIRComm 260. I respectfully adopt her Honour's statement of the relevant principles. 3 Having regard to the affidavit material filed, which established on a prima facie basis that the existence of certain documentation had only been referred to by the respondents very late in the case management process and that the first respondent's solicitor had withdrawn an undertaking to preserve primary documentation, including documentation in electronic form, which would tend to establish the date upon which that documentation was first created, and having regard to the apparent significance of that documentation in the overall proceedings I formed the opinion that the applicant had a strong prima facie case, that the documents that the respondents sought to rely upon very late in the proceedings might seriously impact upon the applicant's case, and, in view of the withdrawal of the undertaking to preserve that material, that there was the necessary risk that the material might be destroyed or otherwise removed from the jurisdiction. 4 Accordingly, I was satisfied that there was a proper case for the making of anton pillar orders. I note that the orders made were, by consent, extended on the return of the orders on 9 February 2005. 5 The above reasons constitute my reasons for the making of the anton pillar orders. 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.