Mark Russell v Perpetual Trustees Australia Limited [2005] NSWIRComm 187

Industrial Relations Commission of New South Wales in Court Session

CITATION: Mark Russell v Perpetual Trustees Australia Limited [2005] NSWIRComm 187

Applicant Mark Russell PARTIES: Respondent Perpetual Trustees Australia Limited

FILE NUMBER(S): 2580 of 2003

CORAM: Backman J

CATCHWORDS: Notice of Motion - Summons to Produce documents and Notice to Produce - respondent refuses to produce documents on ground documents are not relevant - documents sufficiently identifiable and in the respondent's possession must be produced to the Court in order that Court can assess whether the contents of the documents are relevant or not to a fact in issue in the proceedings - Court nevertheless able to determine that documents not relevant to a fact in issue - Summons for Production set aside - Notice to Produce set aside - costs reserved.

LEGISLATION CITED: Industrial Relations Act 1996

HEARING DATES: 05/31/2005 EXTEMPORE JUDGMENT DATE: 05/31/2005

Applicant Mr M. Russell LEGAL REPRESENTATIVES: Respondent Mr P. Newall, of counsel Phillips Fox Solicitors

JUDGMENT:

- 2 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: Backman J

Tuesday, 31 May, 2005

Matter No IRC 2580 of 2003

Mark Russell v Perpetual Trustees Australia Limited

Application by respondent by way of Notice of Motion to have Summons to Produce and Notice to Produce set aside on ground of relevance.

EX TEMPORE JUDGMENT

[2005] NSWIRComm 187

1 This is an application by way of Notice of Motion filed 11 April 2005 brought by the respondent in proceedings instituted by the applicant by way of Summons for Relief under s106 of the Industrial Relations Act 1996 (the Act). 2 The proceedings have been set down for hearing in March 2006 for some 10 days. The Notice of Motion seeks that the Summons to Produce under s165(3)(c) of the Act issued to the respondent, filed on 29 March 2005, and, a Notice to Produce dated 17 March 2005 be "wholly set aside". 3 The Summons to Produce issued by the applicant seeks production of the following documents: "1. All documents representing the job application of Paul Burdett or job application made on behalf of Paul Burdett in 2002. 2. All documents representing the employment application letter of Paul Burdett or employment application letter made on behalf of Paul Burdett in 2002. 3. All documents representing the resume or curriculum vitae of Paul Burdett in 2002." 4 The Notice to Produce seeks production of the same documents sought in the Summons. 5 The respondent asserts in the Notice of Motion that the documents sought are "irrelevant" and can have "no relevant probative effect in the proceedings or give rise to a chain of enquiry leading to such an effect". Further, it says, that a Paul Burdett, the subject of the sought documents, is intended to be called as a witness by the applicant in the proceedings and, in any event, the documents sought have already been produced and have been provided to the respondent, or by the respondent, in circumstances of confidentiality. 6 Putting aside for the moment the question whether the documents are relevant to a fact in issue, or have any probative value in the proceedings, it would be immediately apparent that the fact that copies of documents are already in the possession of the applicant, of itself, does not discharge the respondent from the requirement to produce them. 7 First, all documents sufficiently identifiable and within the possession of the person summonsed or subpoenaed to produce documents are required to be produced to the Court. Whether access may be legitimately sought to the documents by the parties is a discrete consideration. It is simply not up to the recipient of a Notice to Produce, for example, to decide it will not produce documents because it has made a unilateral decision that those documents are not relevant to a fact in issue. The concept of relevance envisages an examination of the contents of a document which is done by the Court and, of course, cannot be done by the Court unless it has the document. 8 Secondly, there may be a number of legitimate forensic advantages in requiring the production of documents from a particular person. In the context of whether a contract is "unfair", it may be relevant that the documents were in the possession of the person and that the contents of the documents were known to that person at a particular time.