Industrial Relations Commission of New South Wales CITATION : Mark Russell and Perpetual Trustees Australia Limited [2003] NSWIRComm 63 APPLICANT: PARTIES : Mark Russell RESPONDENT: Perpetual Trustees Australia Limited FILE NUMBER: 5173 of 2002 CORAM: Sams DP Unfair dismissal application - notice of motion - summons to produce - application to set aside summons - r 94 of the Industrial Relations Commission Rules - relevance of documents - fishing expedition - whether summons costly and onerous. CATCHWORDS : Held, documents not relevant to applicant's dismissal - summons oppressive and too wide - documents sought on behalf of a third party - disposition of proceedings not compromised - summons set aside in whole - costs reserved. LEGISLATION CITED : Industrial Relations Act 1996 Arhill v General Terminal Company (1991) 23 NSWLR 545 CASES CITED : Commissioner for Railways v Small (1938) 38 SR (NSW) 564 Waind v Hill & National Employers Mutual [1978] 1 NSW LR 372 HEARING DATES: 03/10/2003 DATE OF JUDGMENT: 03/13/2003 APPLICANT: Mark Russell (Solicitor) appeared in person RESPONDENT: LEGAL REPRESENTATIVES: Mr P Newell of counsel SOLICITOR: Ms V Vinski from Phillips Fox JUDGMENT: - 5 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 13 March 2002 Matter No IRC02/5173 Mark Russell and Perpetual Trustees Australia Limited Application by Mark Russell re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION (on notice of motion) [2003] NSWIRComm 63 1 The Commission has been moved by a notice of motion filed on 15 January 2003 by Perpetual Trustees Ltd, the respondent in this matter. 2 The substantive proceedings relate to a claim of unfair dismissal lodged on 10 September 2002 by Mark Russell ("the applicant") pursuant to s 84 of the Industrial Relations Act 1996 ("the Act"). The applicant was dismissed on 29 August 2002 for misconduct. It was alleged he improperly accessed and used confidential e-mails in breach of the respondent's policy and subsequently misrepresented the position concerning his possession of the e-mails. 3 The substantive matter is listed for hearing for five days commencing on 19 May 2003. It is noted that the matter had been previously before McKenna C and Bishop C and reallocated to me on 17 November 2002 after s173 applications were referred to his Honour Wright J, President. 4 The notice of motion was expressed as follows: 1. An order that the Summons for Production the Applicant filed 17 December 2003 be set aside. 2. An order under section 181 of the Industrial Relations Act 1996 (NSW) that the Applicant pay the Respondent's costs of this Notice of Motion. 3. Such further or other orders as the Commission may see fit to grant relief to the Respondent. 5 The summons for production filed on 17 December 2002 seeks the following: 1. Any document representing and/or referring to the resignation or termination of employment of Lynette Drake on or about 30 July 2002. 2. From 15 July 2002 to 30 November 2002 any document or correspondence passing between the Respondent, its employees or agents and Lynette Drake relating to Harassment and/or Complaint and/or Mark Russell and/or termination of employment. 3. Any original or draft document referred to as, or representing or containing in whole or in part the Perpetual Year End Performance Feedback Summary Lynette Drake 2002. 4. Any document referred to as, or representing or containing in whole or in part the Perpetual Mid Year Performance Feedback Summary Lynette Drake 2002. 5. Any document referred to as, or representing or containing in whole or in part Internal Report Private Clients Legal Services From Lyn Drake dated 15November 2001. 6. Any document referred to as, or representing or containing in whole or in part Internal Memorandum From Lyn Drake to Jane Couchman Subject: Wealth Management Monthly Reports - July 2001, August 2001, September 2001, October 2001, November 2001, December 2001, January 2002, February 2002, March 2002, April 2002, May 2002, June 2002, and July 2002. 6 The notice of motion was listed for hearing on 10 March 2003 with Mr Newell of counsel appearing for the respondent. It is to be observed that, while the applicant was unrepresented, he is an admitted solicitor in New South Wales, Victoria and the Northern Territory. 7 I do not propose to detail the helpful comprehensive written and oral submissions of Mr Newell - suffice to summarise his arguments as follows: 1. The applicant's s 84 application has a narrow compass of fact going to whether the applicant's acknowledgement of accessing the e-mails was conduct justifying dismissal and whether his misrepresentation of the position also justified dismissal. (See the applicant's reasons for dismissal as stated in his application) 2. The material sought in the summons is irrelevant and a fishing expedition on behalf of a third party. See Waind v Hill & National Employers Mutual [1978] 1 NSW LR 372 3. The test is whether the material sought is necessary for the disposition of the proceedings. See Arhill v General Terminal Company (1991) 23 NSWLR 545 4. The cessation of Ms Drake's employment and files associated with her employment are irrelevant to these proceedings. 5. The summons fails to identify the documents with sufficient particularity. 6. The material sought is voluminous and in many cases electronically stored. Retrieving such material will be extremely onerous and costly. See Commissioner for Railways v Small (1938) 38 SR (NSW) 564 . 8 Mr Newell tendered and relied on an affidavit of Vesna Vinski, a solicitor engaged by the respondent in this case. 9 The general thrust of the applicant's reasons for seeking the summonsed documents was to demonstrate a pattern of improper and harassing conduct by the respondent against Ms Drake, which demonstrated the unfairness of his own dismissal. He relied on an affidavit filed on 6 March 2003, in which he deposed that certain of his performance review documents were not an accurate record of his performance or Ms Drake's comments on his performance (Ms Drake had conducted these reviews.) CONCLUSION 10 Having reviewed the submissions of the parties and contents of the affidavits relevant to this notice of motion, I am satisfied that a persuasive case has been made out to set aside the entirety of the 17 December 2002 summons to produce. 11 I do so for the following reasons. Firstly, this case concerns the reasons for, and the circumstances surrounding the termination of employment of the applicant; not Ms Drake or anyone else. Secondly, this is not a case where the conduct alleged to be misconduct is contested by the applicant. Thirdly, the applicant does not contest the factual matrix of the stated reasons for his dismissal. Rather, as I understand it at this preliminary stage, he argues that the e-mails were not confidential, he was entitled to use them and he did not misrepresent the position. Viewed in this way, it is said that his dismissal was unfair. Fourthly, Ms Drake has provided two affidavits in support of the applicant's case and will no doubt give oral evidence at the appropriate time. The extent to which her circumstances relate to the applicant's termination of employment will, no doubt, (subject to objection) be canvassed in the substantive proceedings. Fifthly, the summons is unduly oppressive in that it does not particularise the documents which are sought, and is far too wide in its compass. Sixthly, the documents sought relate to another person's employment and prima facie might well be viewed as a fishing expedition on her behalf. Seventhly, I am satisfied that a fair and just disposition of these proceedings can be achieved without reliance on the material sought in the summons. 12 Accordingly, pursuant to r 94 of the Industrial Relations Commission Rules I set aside, in whole, the summons to produce filed by Mark Russell on 17 December 2002 in IRC02/5173. 13 Costs are reserved until after judgment is published in the substantive proceedings listed for hearing on 19-23 May 2003. I adjourn until 10am on 19 May 2003. Peter Sams Deputy President 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.