Industrial Relations Commission of New South Wales in Court Session CITATION : Romanin v University Co-operative Bookshop Limited [2003] NSWIRComm 326 FRANK ROMANIN Applicant PARTIES : UNIVERSITY CO-OPERATIVE BOOKSHOP LIMITED Respondent FILE NUMBER: IRC 2567 of 2000 CORAM: Schmidt J CATCHWORDS : Unfair contract - notice of motion seeking leave for applicant to call evidence in reply to evidence given by respondent's witness in cross examination - leave sought granted LEGISLATION CITED : Evidence Act 1995 HEARING DATES: 09/19/2003 EXTEMPORE JUDGMENT DATE : 09/19/2003 APPLICANT: Mr R Alkadamani of counsel SOLICITORS: Haywards LEGAL REPRESENTATIVES: RESPONDENT: Ms C Ronalds of counsel SOLICITORS: JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J DATE: 19 September 2003 Matter Number IRC 2567 of 2000 FRANK ROMANIN v UNIVERSITY CO-OPERATIVE BOOKSHOP LIMITED Application under section 106 of the Industrial Relations Act 1996 JUDGMENT (extempore) 1 HER HONOUR: This judgment deals with a motion seeking leave for the applicant to call evidence in reply in relation to evidence given by one of the respondent's witnesses in cross examination. 2 The respondent opposes that leave being granted, submitting that the evidence in question does not go to a fact in issue in the proceedings but rather only to credit, and a collateral issue. Section 102 of the Evidence Act 1995 is also relied on. 3 I am not satisfied that the respondent's submissions as to what is in issue are correct. Relief sought in the summons goes to the fairness of the contractual notice period, amongst other things. The terms of contract are in issue, including the notice provision; see paragraph B9 of the amended summons and the reply. The evidence goes to those matters. 4 In the circumstances, I am satisfied that the interests of justice demand that the leave sought be granted. The application is not one, which falls within the collateral facts rule, upon which counsel for the respondent relied. Had the evidence given in cross examination by the respondent's witness been given in his affidavit, there is no doubt in my mind that the applicant would have been entitled to put on evidence in reply. That evidence was given in cross examination cannot, in my view, as a matter of justice, properly preclude the applicant from calling the evidence in respect of which leave is now sought. 5 In the circumstances and for the reasons given, the leave sought by the applicant must be granted. I so order. 6 Before I adjourn, it is obvious from what you said, Ms Ronalds, that you have objections. I direct that notice of the objections be given and that counsel confer so that as much as possible can be agreed so that when we get to that evidence I need only deal with whatever remains outstanding between the parties, if anything. 7 RONALDS: We will attempt to do that. 8 ALKADAMANI: I seek directions. My friend has not put on evidence in reply. I think they intended to do so. 9 HER HONOUR: It is a matter for Ms Ronalds if there is any application to be made, but the leave you sought was for it to be called in reply, and that has some consequences. 10 The matter adjourns. ------------------------ 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.