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. 9 As to whether the documents are relevant to a fact in issue, or probative, there is correspondence annexed to the respondent's Notice of Motion which sheds some light on the subject. In response to a letter from the respondent dated 21 March 2005 (in which the applicant was informed that the documents he sought by way of a Notice of Motion were not relevant) the applicant, on 23 March 2005, advised the respondent that the documents requested established that Paul Burdett first applied for a practising certificate in New South Wales on 11 November 2002. Mr Burdett worked for the respondent during June 2002 to November 2002 providing legal services when he did not, to the respondent's knowledge, hold a practising certificate, and was an unqualified clerk. The applicant suggests that the inference may be available that the respondent adopted an "unlawful employment practice" of intentionally directing both the applicant and Mr Burdett to provide legal services when neither held practising certificates. The documents sought, according to the letter, will tend to suggest that the respondent knew it acted unlawfully and had a tendency to act unlawfully in the course of employing solicitors and unqualified clerks. 10 The reference to the applicant not holding a practising certificate appears to emanate from material outlined in paragraph 7 of the Summons for Relief where, according to the applicant, the respondent refused to pay for his practising certificate in July and August 2000. The applicant thereafter, without holding such certificate, provided legal advice at the request of the respondent, the applicant says, in breach of the Legal Profession Act 1987. 11 All this may or may not have been the case. I fail to see how the respondent's conduct in relation to Mr Burdett can have any impact on whether the contract said to exist between the applicant and the respondent was unfair. In paragraph 7 of the Summons for Relief the applicant alleges that the contract was unfair, against public policy and for an unlawful purpose. These allegations are based on the applicant's contentions that he was requested by the respondent to provide legal advice while not holding a practising certificate. The circumstances pertaining to Mr Burdett, either in isolation or by way of some tendency or coincidence basis, I cannot see, at this stage, as being relevant to a determination of the matter. 12 I therefore, make the following orders: 1. The Summons for Production dated 29 March 2005 issued to the respondent is set aside. 2. The Notice to Produce dated 17 March 2005 is set aside. 3. Costs are reserved. ooo000ooo 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.