Industrial Relations Commission of New South Wales in Court Session CITATION : Berwick v Richard Oliver International and anor [2002] NSWIRComm 352 APPLICANT Graeme Berwick PARTIES : FIRST RESPONDENT Richard Oliver International SECOND RESPONDENT Willis Australia Limited FILE NUMBER: IRC3982 of 2000 CORAM: Peterson J CATCHWORDS : Practice and procedure - s106 - Unfair contract - Rejection of tender by respondent - Late service contrary to directions of Commission - Tender unfairly prejudice applicant. LEGISLATION CITED : Industrial Relations Act 1996 s106 Evidence Act 1995 ss135 138 CASES CITED : Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 185 ALR 1 The Spanish Club Limited v Bounouar [1999] NSWIRComm 105, 19 March 1999, unreported. HEARING DATES: 11/25/2002; 11/26/2002; 11/27/2002 EXTEMPORE JUDGMENT DATE : 11/26/2002 APPLICANT Mr J H Pearce of counsel SOLICITOR Paul Murphy & Associates SYDNEY. LEGAL REPRESENTATIVES: RESPONDENT Mr B Hodgkinson SC with Mr McGee of counsel SOLICITOR Abbott Tout SYDNEY. JUDGMENT: - 4 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: PETERSON J DATE: 26 NOVEMBER 2002 Matter No IRC3982 of 2000 GRAEME BERWICK v RICHARD OLIVER INTERNATIONAL AND ANOR. Application under s106 of the Industrial Relations Act 1996. RULING (Extempore) 1 HIS HONOUR: The applicant is in his case and is being cross-examined. Senior counsel for the respondents has sought to tender a file of some 400 pages of email messages so that cross-examination upon them will be possible. The email messages are largely of a similar character to those already tendered in the applicant's case and which constitute Exhibit 6. 2 The emails were exchanged between the applicant and a female employee of one or other of the respondents utilising the respondent's computer system. The contents suggest the messages in question were never intended to be read by other than the sender and the receiver. Somewhat curiously to me at this stage, they each seemed to occur under a heading which describes some business-related subject. 3 The respondents seek to tender the material as relevant to the relationship between the applicant and the female employee; the position of Mr Bowen, who was the subject of an attempt by the applicant to make his position redundant (and I interpose later accessed the subject emails); the demonstration of the use of sexually explicit references and as a disclosure of inappropriate and confidential material. 4 Copies of the additional emails were first provided to the applicant approximately 10 days ago, the other emails comprising Exhibit 6 were provided after he requested them, in June 2000. They were then understood by him to be the emails which gave rise to his termination of employment. The additional emails were referred to by the solicitors for the respondents in a letter dated 14 November 2002 as follows: During preparation of this matter for trial, our client has uncovered a number of further emails, to and from your client which are relevant to the issue of his dismissal. 5 However, the affidavit of Mr Bruce Bollom sworn 14 November 2002, which annexed the emails the respondent now seeks to tender, says in paragraph 3: I caused all e-mails I believed to be relevant to these proceedings to be supplied to the respondents' lawyers Abbott Tout in or about October 2000 being e-mails exhibited by me in the affidavit and e-mails which were not so exhibited. These e-mails are annexed and marked "Z" . 6 Counsel for the applicant has objected to the tender on three grounds. Firstly, the late service contrary to consent directions adopted in the proceedings on 1 November 2001. Secondly, relying on s135 of the Evidence Act, on the basis the probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the applicant. This proposition argues that the presentation to the applicant some two and a half years after the event of the emails gives him, with the passage of time, no fair opportunity to consider and attempt to recall the contents. The same cannot be said of the other emails within Exhibit 6 because they were supplied contemporaneously. Thirdly, relying on s138 of the Evidence Act, it is submitted, the evidence was obtained improperly. 7 It was firstly argued that access to emails was obtained contrary to the rules of the respondents and, secondly, relying on Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 185 ALR 1, by a breach of confidence, the emails being of a private nature. 8 The respondents argue the access to the emails occurred after the female participant had left to the respondents' employ, in a necessary and proper search for business information they expected they might find in deleted emails. The emails were restored and thus their content revealed. 9 It was also argued the Data Policy, of which the applicant, as Managing Director was well aware, indeed was responsible to ensure was applied in the business, expressly gave a right to access as a condition of the supply of the computer service. The policy gave express warning that inappropriate content could lead to disciplinary action, including dismissal. 10 A number of other subsidiary questions arise. For example, whether by inputting the emails they were "published" into a computer system. Put that another way, ie whether they were exposed to scrutiny by the act of inputting. 11 I am not satisfied on the third ground that the information was improperly obtained. However, I find it unnecessary to come to a final conclusion on that matter because it seems to me the objection can be resolved on the basis of the first and second grounds. 12 I have concluded that the respondents' tender should be declined. I rely on the lateness of the provision of the relevant documents, some two and a half years after the events in question and some 12 months after they were in effect directed to be filed and served. 13 In the decision of The Spanish Club Limited v Bounouar NSWIRComm 105, 19 March 1999, unreported, the Full Bench of the Commission in an extempore judgment on appeal from a single member, who had declined to prevent the calling of evidence orally without the provision of affidavits in accordance with the directions, said: It is imperative that parties to proceedings before this Commission comply with directions designed to facilitate the efficient and effective determination of matters before the Commission. Absent any proper explanation, any party in default of the direction will run the risk of a sanction imposed by the presiding member of the Commission. 14 I am satisfied that in these circumstances I should exercise my discretion against the tender, particularly having regard to the likely prejudice it will have to the applicant's ability to fairly deal with the material. I take some little comfort from the fact that that conclusion does not leave the matter bereft of relevant evidence on the critical aspect, namely, the material relied on by the respondents in coming to their decision in June 2000 which, of course, as I have said, comprises Exhibit 6. 15 I mention it has not been suggested, nor could it be reasonable, that the late service could be accommodated by an adjournment with costs. The effect of such an adjournment, having regard to the Court timetable, would have put the trial back some six months, a result which I would not consider appropriate in the circumstances. 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