Industrial Court of New South Wales CITATION: Kennett & Anor v Mayrana Pty Ltd and Ors (No 8) [2007] NSWIRComm 239 MATTER NUMBER IRC 3679 OF 2003 _________________________________ KEITH FRANKLIN KENNETT First Applicant KF KENNETT NOMINEES PTY LIMITED (ACN 007 739 568) Second Applicant MAYRANA PTY LTD (ACN 101 363 688) First Respondent GARRATT'S LIMITED (ACN 000 003 725) Second Respondent CHRISTOPHER CAMPBELL Third Respondent PARTIES: MICHAEL TRAYNOR Fourth Respondent MATTER NUMBER IRC 3680 OF 2003 _________________________________ MYONG HO PAK Applicant MAYRANA PTY LTD (ACN 101 363 688) First Respondent GARRATT'S LIMITED (ACN 000 003 725) Second Respondent CHRISTOPHER CAMPBELL Third Respondent MICHAEL TRAYNOR Fourth Respondent FILE NUMBER(S): IRC 3679 and 3680 of 2003 CORAM: Schmidt J CATCHWORDS: Evidence - notice of motion - leave to adduce further evidence - reasons for refusal CASES CITED: Kennett & Anor v Mayrana Pty Ltd and Ors (No 5) [2007] NSWIRComm 199 The State of Queensland and Anor v JL Holdings Pty Limited (1996) 189 CLR 146 HEARING DATES: 19 September 2007, 20 September 2007 DATE OF JUDGMENT: 21 September 2007 APPLICANTS: Dr JP Berwick of counsel SOLICITORS: GH Healey & Co FIRST AND SECOND RESPONDENTS: Mr AJ Bulley of counsel SOLICITORS: Gray & Perkins LEGAL REPRESENTATIVES: THIRD RESPONDENT: Mr BKB Cross of counsel SOLICITORS: Thomson Playford FOURTH RESPONDENT: Mr PW Taylor SC with Mr PL Carr of counsel SOLICITORS: Yeldham Price O'Brien Lusk DLA Phillips Fox JUDGMENT: - 1 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Schmidt J 21 September 2007 Matter No IRC 3679 of 2003 KEITH FRANKLIN KENNETT AND ANOTHER v MAYRANA PTY LTD AND OTHERS Application under s.106 of the Industrial Relations Act 1996 Matter No IRC 3680 of 2003 MYONG HO PAK v MAYRANA PTY LTD AND OTHERS Application under s.106 of the Industrial Relations Act 1996 JUDGMENT (No 8) [2007] NSWIRComm 239 1 On 19 September 2007, I refused another application brought by the applicants, for leave to adduce further evidence from Professor Kennett, which had been sought in a motion filed that day. Consideration of the application, when first raised, was adjourned until the motion was served. When raised again, it was opposed. I indicated that I would give reasons for the refusal. These are the reasons. 2 Yet again, there were no grounds and reasons given in the motion seeking leave. The reasons were claimed to appear in the affidavit in respect of which leave was sought. Apart from the evidence sought to be led in the affidavit, the only explanation there given by Professor Kennett for this further, late application for the leave sought to recall him to give further evidence was that: 2. Questions have been put to me and my partner in Excelsior College, Mr Pak, by counsel for Mr Traynor which questions suggest that we calculated the basis of the profit formula used by the Respondents when purchasing Excelsior College. 3 This application came forward not only long after Professor Kennett had given his own evidence, it came after Mr Pak's evidence had been given and after Mr Prior, the applicants' expert, Mr Rodgers, Excelsior College's external accountant and Mrs Brash, the College's employed accountant, had all also given their evidence. The application was also made after the applicants' further amended motion, in which leave was sought to tender working papers of Mr Prior, Mr Rodgers and Mrs Brash, had been dealt with. 4 The affidavit sought to deal with a range of matters, including investigations which Professor Kennett had initiated in July 2007 as to the sale of another College in 1999 or 2000. The affidavit also dealt with the scope of a summons issued for the applicants in July 2007. A document which Professor Kennett claimed had been provided to Mr Pak in 2000, by an employee of the College, was also annexed to the affidavit. Accepting that to be so for the moment, that did not do away with the lack of any proper explanation as to why these matters and this document, had not been dealt with long before in the applicants' evidence. 5 That Professor Kennett had had the time to consider other ways in which the applicants' claims might have been advanced, by the advantage which had flown from the way in which this case had been conducted by the applicants and the considerable delays which had resulted, was not a proper basis for granting yet another departure from adherence to the Court's directions in relation to the filing of the applicants' evidence. Such directions are not given for spurious reasons, but in order that the Court may ensure that all hearings proceed in an orderly and fair fashion. This approach to case management is entirely in the public interest, given the resources which are devoted to hearings and the competing calls which are made on the Court, by numerous parties other than the applicants. 6 When they gave their evidence, neither Professor Kennett nor Mr Pak were re-examined in relation to any of the matters which Professor Kennett now sought to raise. Nor had any of the applicants' other witnesses dealt with those matters in their evidence. As for the 2000 document, it would appear not to have been one ever drawn to the attention of Mr Prior, it having formed no part of his report or working papers, or if it was, it was not a document on which he relied, not having been referred to in his report, or sought to be tendered as a part of the documents later tendered in support of that report. 7 For the applicants, it was submitted, that the document was admissible and relevant to the issues which arose to be determined in the case. That was challenged by the respondents, but even assuming that to be so, that situation could not, of itself, provide a proper basis for granting the further indulgence sought. Were that so, it would follow that leave would have to be granted in relation to any application made in respect of such a document, no matter at what stage of the proceedings the application came forward and notwithstanding what directions the Court had earlier made, in relation to how evidence was to be brought in the proceedings. As the High Court's judgment in The State of Queensland and Anor v JL Holdings Pty Limited (1996) 189 CLR 146 makes clear, that is simply not the law. 8 In all of the circumstances, I was satisfied that justice could not permit the applicants being given yet a further indulgence, in order to take their case off on yet another tangent. They have been given every proper opportunity to litigate the issues which in truth lie between the parties. That further ideas might have arisen in Professor Kennett's mind, at this stage of the proceedings, as to how those issues might be pursued, is not, of itself a proper basis for granting the leave sought. 9 I adhere to the views I expressed in Kennett & Anor v Mayrana Pty Ltd and Ors (No 5) [2007] NSWIRComm 199 at [30] and at [36]. They were equally apt to the circumstances in which this application was brought and refused. ------------------------ 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.