Industrial Court of New South Wales CITATION: Ceccato v Almona Pty Ltd [2006] NSWIRComm 271 APPLICANT: Phillip Ceccato PARTIES: RESPONDENT: Almona Pty Ltd (ACN 002 441 438) FILE NUMBER(S): IRC 4871 of 2005 CORAM: Schmidt J CATCHWORDS: Notice of Motion - summons for production - respondent seeking to set aside parts of summons - whether production sought for a legitimate forensic purpose - motion dismissed - costs to be agreed or assessed LEGISLATION CITED: Industrial Relations Act 1996 Ritchie's Uniform Cicil Procedure Rules 2005 CASES CITED: Attorney-General (NSW) v Stuart (1994) 34 NSWLR 67 HEARING DATES: 18/08/06 EXTEMPORE JUDGMENT DATE: 08/18/2006 APPLICANT: Mr M Barnes, solicitor SOLICITORS: White Barnes LEGAL REPRESENTATIVES: RESPONDENT: Ms Webster of counsel SOLICITORS: JR Lawyers (Incorporationg Tsatsimas Solicitors) JUDGMENT: - 5 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Schmidt J 18 August 2006 Matter No IRC 4871 of 2005 PHILLIP CECCATO v ALMONA PTY LTD Application for recovery of money pursuant to section 365 of the Industrial Relations Act 1996 INTERLOCUTORY DECISION (extempore) [2006] NSWIRComm 271 1 These proceedings were commenced in December 2005 pursuant to s 365 of the Industrial Relations Act 1996 ('the Act'). The applicant seeks to recover unpaid annual leave and long service leave from his former employer, the respondent company. The respondent's case is that no such monies are owed. 2 This decision deals with a motion filed by the respondent on 25 July, seeking to set aside parts of paragraph 1 of a summons for production filed by the applicant on 11 May. The paragraph seeks production of: The Statements of Account of the Respondent for the financial years ending 30 June 2003, 30 June 2004 and 30 June 2005 together with the documents, notes and records including cheque butts relied upon by the Respondent to provide the annexure to the particulars provided by the Respondent's Solicitors of 8 February 2006 together with invoices referred to therein. 3 The respondent claimed that the 'documents sought can bear no legitimate forensic purpose in the proceedings' and that 'there were no particulars provided to the applicant in these proceedings on 8 February 2006.' The motion was supported by an affidavit sworn by the respondent's solicitor, Mr John Tsatsimas, in which reference was made to other proceedings on foot between the parties in the District Court. Otherwise, the affidavit merely repeated the assertion that 'the request can not be made for a legitimate forensic purpose'. 4 As to the reference to the letter of 8 February, it was accepted at the hearing that there was such a letter, so this part of the motion was not pressed. It was also clarified that some of the documents referred to in paragraph 1 of the summons had been produced. All that remained in issue were the respondent's statements of account. 5 The applicant, for his part, relied upon an affidavit sworn by his solicitor, Mr Michael James Barnes, to which was annexed various correspondence between the parties' legal representatives. In January 2006, the applicant sought particulars of the respondent's claim, that the applicant had been paid annual leave and long service leave entitlements. Particulars were provided in February, in which it was claimed that the applicant had accepted cash payments in lieu of leave; that the respondent had funded a trip to Europe taken by the applicant; that between December 2004 and 13 July 2005, the applicant had been paid an amount equal to 30 weeks' long service leave, when he was owed only 19.067 weeks and that the applicant owed the respondent $269,488.39, being loans provided to the applicant for the construction of his house. 6 In May, the summons for production was served and subsequently certain documents were produced by the respondent. As to paragraph 1 of the summons, the respondent's solicitor advised the Commission by letter of 13 June that 'The Statements of Account sought by the Applicant have no relevance to the proceedings at hand and all sums that have been paid to the Applicant have been transferred electronically and are readily available from the applicant's bank statements. Further the Statement of Account contains commercially sensitive information as to our client's business and as such are objected to'. The documents were not produced. 7 The applicant pressed for compliance with the summons and by letter of 16 June sought particulars of when and what amount it was claimed the applicant was paid in cash; when and how the trip to Europe was funded and what cash payments were made in lieu of annual leave and when. It is not clear whether there has been a response to that request. 8 The Industrial Registrar directed that the respondent file a motion to have the disputed part of the summons set aside, by 28 June. The respondent resisted, seeking to dissuade the applicant from pressing the summons, as a waste of time, because the documents could have no legitimate forensic purpose. The motion was finally filed on 25 July. 9 The respondent's case was that the statement of accounts sought by the applicants for the financial years ending 30 June 2003, 2004 and 2005 can have no relevance to the issues to be decided in the proceedings, or as it was put in the motion, have no legitimate forensic purpose in the proceedings. In submissions it was put that: 6. The Court should allow a party to issue a summons and call upon the summons except in relation to matters that are: (a) not for a legitimate forensic purpose; (b) oppressive; (c) not specified with sufficient particularity; (d) abuse of process; (e) "Fishing expedition"' (f) vexatious; and/or (g) frivolous. 8. A subpoena is not to be used as a substitute for discovery. 10 Reliance was also placed on the observations of Hunt CJ at CL in Attorney- General (NSW) v Stuart (1994) 34 NSWLR 67, who held: The concept of legitimate forensic purpose is not confined to claims of public interest immunity. It arises whenever a party seeks access to documents for which he has issued a subpoena; where objection is taken, a party who is unable to show that it is at least "on the cards" that such documents will assist his case is not entitled to have access to such documents simply to see whether they may do so: R v Saleam (1989) 16 NSWLR 14 at 17-18. He is not entitled to conduct a fishing expedition. 11 I am unable to accept the respondent's case, given that the claims advanced in the proceedings concern statutory annual leave and long service leave entitlements, which the applicant claims are unpaid. This the respondent disputes, asserting that they have been paid and further, that the applicant owes the respondent other moneys. It plainly follows that the documents in question could throw light on the issues which arise for determination in these proceedings and that it is 'on the cards' that the documents in question could assist the applicant's case. 12 After all, even if paid in cash, as alleged by the respondent, such payments ought to be recorded in the respondents' accounts and other financial records, as should the asserted loans. The documents sought have been described with reasonable particularity. It is not apparent that the documents are sought for any improper purpose, that the summons is oppressive, vexatious, frivolous or amounts to a fishing expedition. It was certainly not demonstrated that what was sought was a substitute for discovery. 13 Questions of confidentiality might arise, as the respondent claimed, but did not press, at the hearing. The proper time for such questions to be dealt with, is when the documents are produced to the Commission, as the summons requires. 14 Given what was submitted, it is pertinent to observe as to this matter, that in the ordinary way, the Commission would then expect that the parties' legal representatives would discuss that issue, if such a claim be pressed in relation to particular documents. In most cases where such issues arise, they are resolved without the need for recourse to the Commission, by a sensible consideration of what access is required to the documents and whether any additional undertaking to that implied in all proceedings in which documents are produced to the Commission, ought to be given in the particular case. For a form of such an express undertaking, see Ritchie's Uniform Civil Procedure Rules 2005 at [33.9.15]. 15 For those reasons the respondents' motion must be dismissed. I order accordingly. The usual order as to costs would be costs as agreed or assessed. The parties have liberty to approach in that respect, if agreement is not able to be reached on the appropriate order. ------------------------ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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