Industrial Relations Commission of New South Wales in Court Session CITATION : Jeliba v APRA [2004] NSWIRComm 95 APPLICANT Alexander Jeliba PARTIES : RESPONDENT Australasian Performing Right Association Limited FILE NUMBER: 4054 of 2003 CORAM: Marks J CATCHWORDS : Interlocutory judgement - Alleged redundancy - Summons for production of documents - Whether document had some apparent relevance to issue in proceedings - No apparent relevance - Summons dismissed. LEGISLATION CITED : Industrial Relations Act 1996 HEARING DATES: 04/14/2004 EXTEMPORE JUDGMENT DATE : 04/14/2004 APPLICANT SOLICITORS Mr. M Barnes - White Barnes LEGAL REPRESENTATIVES: RESPONDENT SOLICITORS Mr. M Diamond - McCarthy Ausgroup Pty Ltd JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Wednesday 14 April 2004 Matter No IRC 4054 of 2003 ALEXANDER JELIBA V AUSTRALASIAN PERFORMING RIGHT ASSOCIATION LIMITED Application under s 106 of the Industrial Relations Act 1996 INTERLOCUTORY JUDGMENT (EX TEMPORE) [2004] NSWIRComm 95 1 By Summons for Relief commenced under s106 of the Industrial Relations Act 1996 the applicant, Alexander Jeliba, has sought certain relief against the respondent, Australasian Performing Right Association Ltd. The proceedings arise out of the termination of the applicant's employment as Finance Director of the respondent allegedly by reason of redundancy after some 29 years service. 2 The summons alleges a number of grounds upon which the requisite unfairness is said to be based, including three paragraphs relating to a special bonus. In summary, the summons says that a number of payments were made to a Company Secretary in 1990 in recognition of her having performed a role of Acting CEO and in recognition of her hard and long hours of work with the respondent. It is alleged that a representation was made to the applicant at Board level that he would be provided with a similar bonus on termination of his employment. 3 These interlocutory proceedings arise out of a Notice of Motion brought by the respondent to strike out a Summons for Production filed on 24 February 2004, issued by the applicant, requiring it to produce documents relating to a special payment made to each of three named individuals. The first and second were with respect to the successful resolution of matters against two named organisations and the third was with respect to the completion of the sale of a copyright management system to certain organisations. In summarising the substance of the Summons for Production this way, I deliberately leave aside reference to accrued long service leave paid to one individual, which the respondent has agreed to comply with, subject to the existence of the relevant documents. 4 The general principles which apply to the resolution of matters of this kind are well-known. I shall attempt to summarise the principle to be applied by reference to the well-known expression "apparent relevance", that is, the documents sought by the applicant must have some apparent relevance to an issue in these proceedings. 5 The only relevance to which the applicant's Counsel was able to take the Court were the three paragraphs in the initiating summons dealing with the special bonus, to which I have referred. The allegation contained in the initiating process is confined to some special consideration in terms of hard and long hours of work and in consideration of acting in a higher role within the organisation. I agree with the submissions made by the solicitor for the respondent, that the material sought to be produced in the Summons for Production does not have any apparent relevance to this type of payment made by way of special bonus. Indeed, from the manner in which the Summons for Production is framed, it is apparent that each of the payments were made by reference to a particular commercial transaction, whether it be in the nature of successful resolution of a dispute, or in the nature of the sale of a copyright management system. There is no suggestion, in the way in which the Summons for Production is framed, that the payments made were of a general nature by reference to hard and long hours of work and the like. For these reasons, the Summons for Production should be dismissed. In reaching this conclusion I am mindful that at this stage of the proceedings no substantial affidavit material has been filed by either side. If obviously matters of the kind referred to in the Summons for Production do attain the status of apparent relevance to an issue in the proceedings, then the applicant may seek the production of the documents at the appropriate time. 6 I also bear in mind it is incumbent on courts to ensure that matters are litigated by reference to apparent issues in the proceedings and that the natural proclivity of legal practitioners to examine every nook and cranny of the proceedings on behalf of their clients should be curtailed within reasonable and appropriate bounds. General observations to this effect are made almost daily by Judges, not only in the State of New South Wales but in other jurisdictions, seeking to ensure that there is some apparent relevance between the costs incurred in the litigation process and the amount in issue in the proceedings. Whilst this has not been the substantive motivating factor for the decision which I have reached in determining these interlocutory proceedings, it is a matter which I have had regard to by way of a background observation. 7 The respondent seeks no order for costs arising out of today's proceedings. To the extent that costs become an issue, with respect to the ultimate determination of the Summons for Production issued by the applicant, I will, in any event, reserve costs with respect to the remainder of the items still in issue. 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.