Industrial Relations Commission of New South Wales in Court Session CITATION : Jordan v The Valspar (Australia) Corporation Pty Ltd [2002] NSWIRComm 132 APPLICANT Mel Jordan PARTIES : RESPONDENT The Valspar (Australia) Corporation Pty Ltd FILE NUMBER: IRC 4037 of 2001 CORAM: Marks J CATCHWORDS : Court proceedings - Representation by agents who are not legal practitioners - Summons to produce costs agreement - Allegations of champerty - Motion to set aside summons adjourned - Interest of court in contracts claimed to involve maintenance or to be champertous and in possible breach of s 48E of the Legal Profession Act. LEGISLATION CITED : Industrial Relations Act 1996 s 106 Legal Profession Act s 48E CASES CITED : Tillot v Arrow Pharmaceuticals Ltd IRC 5916 of 2000 26 Feb 2002 Magic Menu Systems Pty Ltd v AFA Facilitation Pty Ltd (1997) 142 ALR 198 at 205 HEARING DATES: 06/07/2002 EXTEMPORE JUDGMENT DATE : 06/07/2002 APPLICANT Mr R Moore of counsel Mr J Boghossian Employment Help Services LEGAL REPRESENTATIVES: RESPONDENT Mr S B Benson of counsel Mr P Ryan Employers First JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MARKS J Friday 7 June 2002 Matter No IRC4037 of 2001 MEL JORDAN v THE VALSPAR (AUSTRALIA) CORPORATION PTY LIMITED Application under s 106 of the Industrial Relations Act 1996 DECISION ON MOTION TO SET ASIDE SUMMONS TO PRODUCE ( ex tempore) 1 The applicant in these proceedings, Mel Jordan, seeks certain relief against the respondent, The Valspar (Australia) Corporation Pty Limited, pursuant to s 106 of the Industrial Relations Act. 2 The summons and an amended summons have been filed in this Court on the applicant's behalf by Employment Help Services. The contact name shown on the summons for that organisation is Mr Jake Boghossian. Mr Boghossian has signed the amended summons. 3 The signature which appears on the affidavit of the applicant verifying the summons, as required by the rules of this Court, appears to be that of Mr Boghossian, who has signed purportedly as "Justice of the Peace/solicitor". 4 Prima facie Mr Boghossian has represented himself as being both a Justice of the Peace and a solicitor, presumably with a current practising certificate under the Legal Profession Act. The respondent, who is represented by an industrial organisation registered under the Industrial Relations Act 1996 known as "Employers First", filed a summons for production addressed to Employment Help Services. 5 That summons required the production to the Court of documents specifying in whole or in part the terms and conditions of any agreement between Employment Help Services and the applicant in these proceedings pursuant to which Employment Help Services agreed to represent the applicant, or otherwise act as industrial advocate or agent of the applicant, in connection with the proceedings. 6 The summons was issued on 7 March 2002 and was returnable before the Registrar on 21 March 2002. Following some delay, a letter was forwarded under the letterhead of Employment Help Services to the Registrar dated 4 April 2002. That letter appears to have been sent by Mr J Boghossian. Certainly his name is typed on the letter as having been written by him. The letter enclosed documents, but asked that the envelope remain sealed until a notice of motion was determined. 7 On 30 May 2002 Employment Help Services filed in this Court a notice of motion seeking an order that the respondent be denied access to the applicant's costs agreement with Employment Help Services and seeking an order for costs. 8 The grounds and reasons set out in the notice of motion were, firstly, that the costs agreement was subject to "client/representative privilege"; secondly, that the costs agreement itself was subject to "legal/industrial professional privilege" and thirdly, that the summons was an invasion of privacy of the commercial relationship of the client with his representative. 9 The affidavit in support sworn by Mr Boghossian states that he is an industrial advocate employed by Employment Help Services. Whilst the affidavit goes on to deal with the history of the issue of the summons for production of the documents, it does not purport to adduce any factual material to give rise to, or support the three grounds and reasons which I have outlined. It does say to the best of his knowledge "the grounds and reasons in the notice of motion are fair and reasonable." 10 The notice of motion came on for hearing this day. Mr R Moore of counsel appeared for Employment Help Services in support of the notice of motion. It was opposed by Mr S Benson of counsel, who appeared instructed by Employers First. An affidavit of Peter Francis Ryan was read during the course of submissions made by Mr Benson. This affidavit was sworn on 5 June 2002 and says that Mr Ryan is a senior adviser, employee relations "at" Employers First and that he had carriage of the matter during the absence of Ms Christine Barrett. The affidavit does not state whether Mr Ryan is also coincidentally a legal practitioner holding a current practising certificate. 11 The affidavit has annexed to it a statement made by Cambridge C of the Industrial Relations Commission of New South Wales in Tillot v Arrow Pharmaceuticals Limited IRC 5916 of 2000, dated 26 February 2002. That statement was issued as a result of interlocutory proceedings heard by the Commissioner concerning a substantive unfair dismissal application in which Employment Help Services represented the applicant employee. Allegations were made in those interlocutory proceedings by solicitors acting for the respondent that Employment Help Services had unlawfully, or improperly maintained the proceedings and that in the circumstances, champerty was involved. 12 The statement of Cambridge C dealt with the circumstances surrounding those proceedings and dealt also with a costs agreement which became an exhibit in the proceedings before him, which was stated to represent a standard costs agreement in general form and content widely utilised by Employment Help Services. 13 The statement said that whilst the Commissioner had not formed any concluded view about whether the arrangement between Employment Help Services and its clients, as set out in the standard costs agreement, represented unlawful maintenance and champerty, on its face, the agreement "undeniably establishes a contract involving maintenance and champerty." 14 The Commissioner determined to issue and publish the statement for the assistance of parties in other matters where Employment Help Services purported to represent the rights of applicant workers in proceedings before the Commission. 15 The statement made by Cambridge C was annexed to the affidavit of Mr Ryan filed in these proceedings and was said to form the basis for the issue of the summons for the production of the costs agreement between Mr Jordan and Employment Help Services in these proceedings. 16 Mr Moore has candidly conceded that the notice of motion filed by Mr Boghossian is inadequate to raise the issues which he wished to address to this Court in aid of an application to preclude the respondent from gaining access to the costs agreement. He wished to rely in particular on the manner in which the organisation Employment Help Services was named in the summons, and more substantially he wished to rely on an argument that the documents sought to be produced were not relevant to the proceedings in any material way therefore constituting an abuse of process. 17 Mr Moore accordingly sought an adjournment to enable an amended notice of motion to be filed. Mr Benson resisted any application for an adjournment. 18 Mr Moore made it clear that he was not representing Mr Jordan in these proceedings. I am concerned to ensure that Mr Jordan fully understands the impact that the summons for the production of the costs agreement and the eventual access that might be given by the respondent to that costs agreement, if this were to occur, might have on him. 19 It is for this reason and this reason only that in my opinion an adjournment of this interlocutory application should be granted. It is obvious that all Courts have an interest in ensuring that proceedings are conducted in a proper and appropriate manner. This is part and parcel of the proper administration of justice. There are good and compelling reasons why Courts would not aid contracts which are in the nature of maintenance and champerty. I refer to the judgment of the Full Court of the Federal Court of Australia in Magic Menu Systems Pty Limited v AFA Facilitation Pty Limited (1997) 142 ALR198, particularly at 205 and following. 20 This Court, like all other courts, will also have an interest in ensuring that the provisions of any relevant legislation such as the Legal Profession Act are complied with. (For example s 48E prohibits the performance of general legal work as defined for a fee unless carried out by a barrister of solicitor holding a current practising certificate). 21 I am not suggesting that the costs agreement between Employment Help Services and Mr Jordan is one which can be characterised as involving either maintenance or champerty, or is one made in breach of the Legal Profession Act. I have not seen the costs agreement and no evidence has been led as to its terms or conditions. I could not possibly come to any conclusions of this kind. However, the specific issue regarding maintenance and champerty has been raised by the respondent and the question of compliance with the Legal Profession Act has been canvassed during the course of submissions, impacting upon the representations of both parties, neither representation being undertaken prima facie by a legal practitioner. In making this observation, I refer specifically to Employment Help Services and to Employers First. Of course, I exclude reference to both Mr Moore and Mr Benson who are legal practitioners holding, I assume, current practising certificates. 22 In all the circumstances I propose to adjourn these proceedings to allow Mr Jordan to have the opportunity of being fully advised as to any relevant legal principles which may apply to the costs agreement which he has entered into with Employment Help Services and to be advised as to whether that costs agreement complies fully with all relevant laws. 23 Coincidentally, Employment Help Services should be given an opportunity to file any amended notice of motion. I have discussed with Mr Moore the mechanism which ought to be adopted in order to ensure that Mr Jordan is given an opportunity of understanding the matters canvassed before this Court this day and an opportunity to seek appropriate legal advice. 24 Mr Moore has accepted the responsibility of ensuring that a copy of this decision is forwarded by post to Mr Jordan at his last known address, as disclosed in the documentation filed with this Court. I ask that Mr Moore post a copy of this decision to Mr Jordan within seven days of it being available. 25 I should note that Mr Moore indicated that his client would bear the costs of the adjournment of today's proceedings. Accordingly, I make the following orders: 1. The hearing of the notice of motion filed by Employment Help Services is adjourned and may be restored to the list by either party upon notice under the general liberty to apply, which I hereby grant. 2. Employment Help Services is to file any amended notice of motion and affidavit in support within 14 days of this date. Any such application will be heard by me in the ordinary course of this Court's business, but obviously at the earliest possible opportunity. 3. Mr Moore of counsel shall cause to be posted to Mr Jordan at his last known address a copy of this decision, together with a short note suggesting that he make contact with the Law Society of New South Wales, who may be able to arrange for him to be given advice by a solicitor who practices in the field of industrial law on a pro bono basis, if Mr Jordan wishes to seek independent advice concerning his rights in connection with this matter and if Mr Jordan does not have access to a solicitor of his own choice in connection with any such advice. 4. Employment Help Services are to pay the costs of the respondent of today's proceedings, such costs to be assessed in default of agreement. Those costs will become payable forthwith. 26 In order that the Law Society of New South Wales may be appraised of the possibility that Mr Jordan may seek some pro bono assistance from a member firm of that organisation, I ask the Industrial Registrar to forward a copy of this decision to the President of the Law Society of New South Wales. ___________________________ 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.