Morell v Sydney Organising Committee for the Olympic Games [2000] NSWIRComm 182

Industrial Relations Commission of New South Wales in Court Session

CITATION : Morell v Sydney Organising Committee for the Olympic Games [2000] NSWIRComm 182 PARTIES : Sophie Morrell v Sydney Organising Committee for the Olympic Games FILE NUMBER: IRC1768 of of 2000 CORAM: Marks J CATCHWORDS : Notice to produce for inspection - Subject matter not in compliance with r 161- Whether privileged documents - Whether relevant to a fact in issue - Terms of settlement not privileged under s 131 of the Evidence Act LEGISLATION CITED : Industrial Relations Act 1996 s106 rr160 161 162 163 209 Evidence Act 1995 s118 s131 CASES CITED : State Rail Authority of NSW v Smith (unrep 18/12/98 CA 40,060/98 NSWSC 697) Canizales v Microsoft Corporation & ors (unrep 01/09/00 IRC1829 of 2000) HEARING DATES: 09/05/2000 DATE OF JUDGMENT: 10/05/2000

APPLICANT SOLICITORS KPMG Legal, SYDNEY

LEGAL REPRESENTATIVES: RESPONDENT SOLICITORS Blake Dawson Waldron, SYDNEY

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: MARKS J

Thursday, 5 October 2000

Matter No IRC1768 of 2000

SOPHIE MORELL v SYDNEY ORGANISING COMMITTEE FOR THE OLYMPIC GAMES

Summons for relief under s 106 of the Industrial Relations Act 1996.

INTERLOCUTORY JUDGMENT

1 In these proceedings the applicant Sophie Morell seeks certain relief under s 106 of the Industrial Relations Act 1996 ("the Act") against the respondent Sydney Organising Committee for the Olympic Games. The summons indicates that the proceedings arose out of the relationship between the applicant and respondent of employee and employer and certain alleged conduct on the part of officers of the respondent. There is no explicit allegation contained within the summons to the effect that the applicant's employment by the respondent has been terminated. 2 On 15 August 2000 the applicant's solicitors prepared two documents entitled "Notice to Produce". Only one of those notices to produce is now relevant for the purpose of these proceedings. It was addressed to the respondent and is in the following terms: "The applicant requires you to produce at KPMG Centre, 45 Clarence Street, Sydney at 9am on 29 August 2000, the following documents for the purpose of evidence: All files, papers, electronic communications, facsimiles, notes, memoranda or similar documents relating to the settlement between Karen Webb and the respondent in matter no. 3404 of 2000 before the Industrial Relations Commission of New South Wales in Court Session." 3 The notice was signed by the applicant's solicitor. The notice purported to be in the form of "Form 46" of the Rules of this Commission. 4 By letter dated 22 August 2000 the respondent's solicitors wrote to the applicant's solicitor stating that the documents sought in the notice could not be relevant to any fact in issue in the proceedings and, even if they were relevant, were privileged documents "within the definition in r 160 of the Industrial Relations Commission Rules and Pt 3.10 of the Evidence Act 1995." 5 The applicant's solicitor replied by letter dated 23 August 2000 asserting that the subject matter of the notice was relevant to the preparation of his client's case. He also said "you have not asserted a specific privilege under Pt 3.10 of the Evidence Act. Should you wish to maintain your objection please specify exactly what privilege it is that you assert and in respect of which documents." The letter referred to subs (g), (h) and (i) of s 131(2) of the Evidence Act all of which were said to address matters in respect of the notice to produce "which are highly relevant to our client's claim and which specifically allow evidence of such matters to be adduced into evidence." The respondent's solicitors replied by letter dated 25 August 2000, again referring to r 161 and seeking the basis upon which the documents fell within that rule. That letter also denied the applicability of s 131 of the Evidence Act, and asserted legal professional privilege under s 118 of that Act. 6 By letter dated 28 August 2000 the applicant's solicitor asserted that there was no onus on his client to specify to the respondent's solicitors satisfaction why the documents sought in the notice to produce were relevant to the proceedings. That letter also stated that there was an onus on the respondent to specify the documents with respect to which legal professional privilege or other privilege was claimed. 7 The respondent filed a notice of motion in this Court on 30 August 2000 seeking inter alia that the notice to produce be set aside "and that any obligation on the respondent said to arise under r 161 be discharged." 8 An affidavit in support sworn by Jennifer Mansfield, the respondent's solicitor indicated in part that she had also had the carriage of the proceedings between Ms Webb and the respondent. Ms Mansfield said in her affidavit that the position held by Ms Webb with the respondent was a more senior position than that occupied by the applicant in these proceedings, Ms Webb's position was made redundant in June 2000 due to a restructuring of the respondent's media unit, Ms Webb had not been the subject of any performance counselling or warnings by the respondent during her employment and that agreement was reached in those proceedings on a without prejudice basis during a private conference and in the course of conciliation being conducted before this Court. She said that the terms of settlement which were agreed between the parties were confidential and did not appear on the court record.