Industrial Relations Commission of New South Wales in Court Session CITATION : Bowker & Anor v Software Engineers (Australia) NSW Pty Limited & Ors [2004] NSWIRComm 138 APPLICANT: Geoffrey Bowker SECOND APPLICANT: Bonket Pty Limited (ACN 069 224 764) FIRST RESPONDENT: Software Engineers Australia (NSW) Pty Limited (ACN 006 513 499) PARTIES : SECOND RESPONDENT: Timothy Arundell THIRD RESPONDENT: Prophecy Technologies (Southern Region) Australia (NSW) Pty Ltd (ACN 087 222 419) FOURTH RESPONDENT: ACN 087 222 357 Pty Ltd FIFTH RESPONDENT: Prophecy People Pty Ltd (ACN 007 248 286) FILE NUMBER: IRC 291 of 1999 CORAM: Schmidt J CATCHWORDS : Practice and Procedure - whether or not First Respondent's notice to produce should be set aside - orders made HEARING DATES: 05/24/2004 EXTEMPORE JUDGMENT DATE : 05/24/2004 APPLICANTS: Mr D Knoll of counsel SOLICITORS: Haywards FIRST RESPONDENT: Mr J Phillips SC LEGAL REPRESENTATIVES: SOLICITORS: Bolden Lawyers CONTROLLING TRUSTEE: Mr AA Loel, solicitor SOLICITORS: Toomey Pegg Drevikovsky JUDGMENT: - 2 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J DATE: 24 May 2004 Matter Number IRC 291 of 1999 GEOFFREY BOWKER & ANOR v SOFTWARE ENGINEERS AUSTRALIA (NSW) PTY LTD & ORS Application under s106 of the Industrial Relations Act 1996 JUDGMENT (Extempore) 1 I have earnestly considered whether or not the first respondent's notice to produce should be set aside. Given what is here in issue between the parties, I have concluded, not without serious hesitation, that not all of that notice can properly be set aside. 2 The applicants seek costs orders of a particular kind against the respondents. There are questions as to whether or not the Court has power to make such orders. Even if it has, I have serious reservations that the material put forward by the applicants provides a proper basis for conclusions to be reached as to the orders sought. 3 I am entirely sympathetic to the applicants' position. It is undoubted that they are entitled to a costs order in their favour. However, I was careful to conclude in the judgment given on 23 April that: "The usual order as to costs would be that the respondents bear the applicants' costs as agreed or assessed. There are also questions of costs outstanding in relation to various interlocutory judgments. The usual order would be that costs would follow the event. In the absence of agreement on the terms of the order as to costs, the parties have liberty to approach. That liberty should be exercised within 28 days of this judgment." 4 The question of the costs incurred in relation to Federal Court proceedings, in which some of the parties have been involved, has also arisen and must be properly considered. 5 I am satisfied that the material on which the applicants rely is not sufficiently detailed for me to come to a firm view as to the question of the orders sought, without the respondents being given access to some, at least, of the underlying material sought in the notice. That is a most regrettable conclusion, given what has already undoubtedly been incurred by way of costs in this matter and what might be recoverable, in reality, from either respondent. Nevertheless, I am satisfied that justice could not properly be secured if a hasty judgment were here to be given, without consideration of material relevant to the costs here pursued. 6 It follows that, while I am prepared to set aside paragraphs 2, 4, 5 and 6 of the notice, I am unable to come to that view in relation to paragraphs 1 and 3. I order accordingly. 7 I am prepared to continue this hearing on Thursday next if the material in question is provided. It may be that this would permit judgment to be given in time for the creditors meeting on Friday, but plainly that cannot be guaranteed. Much will depend on what happens in the further hearing. ------------------------ 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.