Industrial Relations Commission of New South Wales in Court Session CITATION : George Rofail v Landmark Recruitment Pty Ltd and Others [2004] NSWIRComm 260 GEORGE ROFAIL Applicant LANDMARK RECRUITMENT PTY LTD (ACN 095 692 916) PARTIES : First Respondent TANYA WATERWORTH Second Respondent NICOLE EMMANOUEL Third Respondent FILE NUMBER: IRC 2818 of 2004 CORAM: Schmidt J CATCHWORDS : Anton Pillar order - notice of motion - ex parte hearing - application made prior to conciliation - orders made - undertakings given - costs of motion reserved LEGISLATION CITED : Industrial Relations Act 1996 (NSW) Trade Practices Act 1974 (Cth) Anton Pillar KG v Manufacturing Processes Ltd [1976] 1 Ch 55 CASES CITED : Liberty Financial Pty Ltd v Scott [2002] FCA 345 Marcus Wheeler Jones v Charsam Textiles Pty Limited and Others [2004] NSWIRComm 213 HEARING DATES: 09/03/2004 DATE OF JUDGMENT: 09/07/2004 APPLICANT: Mr DM Shoebridge of counsel LEGAL REPRESENTATIVES: SOLICITORS: Employment Lawyers JUDGMENT: - 6 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J DATE: 7 September 2004 Matter Number IRC 2818 of 2004 GEORGE ROFAIL v LANDMARK RECRUITMENT PTY LTD AND OTHERS Application under section 106 of the Industrial Relations Act 1996 REASONS FOR JUDGMENT 1 On Friday 3 September, an ex parte application for the making of Anton Pillar orders was granted. These are the reasons for the making of those orders. 2 The application was brought by Mr George Rofail in proceedings initiated under s106 of the Industrial Relations Act 1996 ('the Act'), in relation to his former employment by Landmark Recruitment Pty Ltd. The complaint in the proceedings went to the alleged unfairness of the employment contract, in relation to a variety of matters, including a car allowance, superannuation, payment of annual leave loading, notice and redundancy pay. The Anton Pillar orders were directed to an employment contract alleged by Landmark in its pleadings to have been agreed by the parties during the course of the employment. The application was supported by affidavits sworn by Mr Rofail, his solicitor Mr Julian Sefton and Mr Adam Daniel, Forensic Data Services Pty Ltd. 3 The application arose at an unusual time of the proceedings, prior to the conciliation conference fixed before Deputy President Sams later in September. The evidence showed that a copy of the employment agreement had been provided to the applicant, as the result of a request for production of documents under Rule 161 of the Court's Rules. 4 It was the evidence of Mr Rofail that there had been no negotiation of such an employment agreement between the parties; he had never seen the document prior to its recent production in these proceedings and he believed that it had been created after the termination of his employment, in order to advance Landmark's case in these proceedings. 5 The evidence showed that on 24 August, Mr Rofail's solicitor advised Landmark's solicitor that: 'We refer to your letter dated 19 August 2004. We have considered the reasons which you provided with respect to non-provision of the documents which we have requested pursuant to IR Rule 161. We do not agree you are in a position to withhold those documents and therefore call upon you to produce them within 48 hours, failing same we put you on notice that a Notice of Motion will be filed seeking your client's compliance together with an order for costs. Furthermore we hereby put you on notice that we shall seek orders accessing the computer hard drive on which the alleged amended Employment Agreement was created by your client. Please ensure that you advise your clients to in no way compromise this document. Unless we receive an undertaking within 24 hours with respect to same we further put you on notice the appropriate orders will be sought by us to quarantine the hard drive to take an image of same for the purposes of these proceedings.' 6 On 30 August, the following reply was received: 'We refer to your letter dated 24th August 2004 and note that it was not received by our firm until 26th August 2004. In that regard we note with concern your imposed time limits and threats to our firm and to our client. What breathtaking arrogance assumes any right on your part to make threats regarding Amended Employment Agreement which has been produced? Therefore, please desist from enacting these threats until we have had sufficient time to consult with and take instructions from our clients. We find your demands unreasonable and oppressive and remind you that costs can flow to either party during the course of this litigation. We shall contact you shortly with a response to your request.' 7 There was no further response. 8 The Court has power to make Anton Pillar orders under s164(1)(b) of the Act, which enables the Court to exercise the functions of the Supreme Court in compelling the production of records and other documents. It is well settled that Anton Pillar orders will not lightly be made, but only in circumstances of the kind discussed by Lord Denning MR and Ormrod LJ in Anton Pillar KG v Manufacturing Processes Ltd [1976] 1 Ch 55 at 61 and 62: 'It seems to me that such an order can be made by a judge ex parte, but it should only be made where it is essential that the plaintiff should have inspection so that justice can be done between the parties; and when, if the defendant were forewarned, there is a grave danger that vital evidence will be destroyed, that papers will be burnt or lost or hidden, or taken beyond the jurisdiction, and so the ends of justice be defeated; and when the inspection would do no real harm to the defendant or his case. ... "There are three essential pre-conditions for the making of such an order, in my judgment. First, there must be an extremely strong prima facie case. Secondly, the damage, potential or actual, must be very serious for the plaintiff. Thirdly, there must be clear evidence that the defendants have in their possession incriminating documents or things, and that there is a real possibility that they may destroy such material before any application inter partes can be made.' 9 In more recent years, Anton Pillar orders have been made in a number of cases in relation to computer records. In Liberty Financial Pty Ltd v Scott [2002] FCA 345, Weinberg J made such orders, in circumstances where Mr Scott had commenced proceedings in this Court and the employer had commenced proceedings in the Federal Court, under the Trade Practices Act 1974. Mr Scott had been employed as the Chief Account Manager and the orders made on the employer's application, were directed to his computer records. His Honour referred at [49] to: 49 Finally the respondents referred to Microsoft Corp v Goodview Electronics Pty Ltd (1999) AIPC 91-489, where Branson J rejected an application for an Anton Piller order. In a careful judgment, she outlined the very onerous requirements that had to be satisfied before such an order would be made. These included: * that there be a strong prima facie case; * that the applicants be at risk of serious damage; * that there be clear evidence that the respondents had in their possession incriminating documents; and * that there be a high risk that, unless such an order is made, the respondents will destroy evidence or remove it from the jurisdiction. 10 This case had the unusual feature that it was the employee who was seeking the orders against the employer and at a time prior to the conciliation provided by s109 of the Act. The Court's Rules do not provide for production of documents in the ordinary case, prior to such conciliation (See Marcus Wheeler Jones v Charsam Textiles Pty Limited and Others [2004] NSWIRComm 213 and the authorities there referred to). 11 I was, nevertheless, satisfied that this was a proper case for the making of Anton Pillar orders, notwithstanding the stage which the proceedings had reached. 12 While it is not unusual in proceedings brought under s106 for parties to disagree with each other as to the terms of their employment agreement, a contest as to whether or not a written agreement was ever produced, negotiated or entered, is quite unusual. Although not without difficulty of expression, I was satisfied that a proper reading of Landmark's response to the summons, verified by affidavit sworn by Tanya Waterworth, the second respondent, was that the written agreement was produced by the personal assistant of one of the respondents and was the subject of negotiation during the employment, so as to bind the parties to its terms. 13 A comparison of the original agreement, with the disputed new agreement, showed a number of altered terms which favoured the employer in relevant ways, so far as these proceedings are concerned, including in relation to termination. Both contracts provided for summary dismissal. The original agreement described circumstances which would amount to serious misconduct. The new agreement contained a similar clause, in altered terms, which introduced 'misleading the Company in a material way', as one class of serious and wilful misconduct. Landmark's reply to the summons asserted that Mr Rofail had misled it, as to a variety of relevant matters. 14 It was in this context that I accepted the submission that Mr Rofail had established circumstances in which the orders sought could not be refused. It had to be accepted that without taking steps to ensure that the time at which this new contract document was created, could be examined and determined by reference to relevant computer records, the Court would be unable to ensure that justice would be done between the parties, given the cases which they respectively advanced in their pleadings. 15 Landmark's refusal to give the undertaking sought; the nature of the contest between the parties; the narrow compass of the orders sought; and the ease with which the relevant evidence could be destroyed or deleted, (a factor to which considerable weight was also given by Weinberg J in Liberty Financial), all led to convince me that in the unusual circumstances which had here arisen, the orders could not be refused. 16 The orders made were modelled upon Anton Pillar orders recently made by the Supreme Court in other proceedings concerning computer records. They contain a number of relevant safeguards as to the parties' respective positions. Undertakings as to confidentiality and damages were also given. It was for all of these reasons that Anton Pillar orders were made in these proceedings. 17 Costs of the motion are reserved. ------------------------ 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.