Industrial Relations Commission of New South Wales CITATION: Surfing Hardware International Holdings & Ors v William McCausland and Anor (No.2) [2006] NSWIRComm 344 APPELLANTS Surfing International Holdings Pty Ltd SHI Holdings Pty Limited Surf Hardware International Pty Limited PARTIES: Timonthy Bosher Timonthy Ford RESPONDENTS William McCausland Yvonne McCausland FILE NUMBER(S): IRC 2876 of 2006 CORAM: Walton J Vice-President; Boland J; Backman J CATCHWORDS: Appeal - Application for leave to appeal - Appeal from decision and orders restraining solicitors from continuing to represent appellant in proceedings under s 106 of the Industrial Relations Act - Stay of proceedings - Amendments to undertakings proffered by solicitors for appellants as condition of stay - Amendments accepted CASES CITED: Surfing Hardware International Holdings & Ors v William McCausland and Anor [2006] NSWIRComm 276 HEARING DATES: 11/09/2006 DATE OF JUDGMENT: 11/06/2006 APPELLANT Mr H J Dixon SC Solicitor: Mr I Davis Watson Mangioni Lawyers Pty Limited LEGAL REPRESENTATIVES: RESPONDENT Mr P J Newall of counsel Solicitor: Mr G Dunstan Dunstan Legal Solicitors JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES FULL BENCH CORAM: Walton J, Vice-President Boland J Backman J 6 November 2006 Matter No IRC 2876 of 2006 Surfing Hardware International Holdings & Ors v William McCausland and Anor (No 2) Application by Surfing Hardware International Holdings Pty Limited for leave to appeal and appeal against a judgment of Justice Marks given on 14 July 2006 in Matter Nos IRC 5174 of 2004 and IRC 4589 of 2005 INTERLOCUTORY JUDGMENT OF THE COURT [2006] NSWIRComm 344 1 In Surfing Hardware International Holdings & Ors v William McCausland and Anor [2006] NSWIRComm 276, a decision given on 1 September 2006, the Full Bench made certain orders the effect of which was that the Court would accept the tender of certain undertakings by Harmers Workplace Lawyers and of certain persons who are partners in, or employees of, that firm. The firm undertook to the Court as a condition of the stay that only Mr Gregory Robertson and Mr Brad Buffoni would, without further leave of the Court, have the conduct of the applica­tion for leave to appeal and appeal in this pro­ceeding. 2 On 6 September 2006 those undertakings (signed on 5 September 2006) were subsequently proffered to the Court in the form as originally proposed with one exception and that was in respect of the undertaking by Mr David Stewart. The amendment that was proposed is in italics in the form of the undertaking quoted below, that is the additional words in par 1 in parentheses: 1. to have no involvement in proceedings nos 5174 of 2004, 4589 of 2005 and 2876 of 2006 (other than as provided by paragraph 2 of this undertaking) ; 2. that I will not disclose any information which came to my knowledge or attention as a result of Mr McCausland meeting with Mr Richard Lewin and me in February 2004, or subsequent telephone discussions with Mr McCausland in 2004 with any person other than Mr Gregory Keith Robertson in his role as Compliance Officer within the meaning of that term in the Information Barrier Guidelines issued by the Law Society of New South Wales and any counsel instructed on behalf of the Appellants in the said proceedings if required of me; 3. to restrict access to all documents previously created by me or under my control (including any such documents stored electronically) so as to permit access to them by only those persons named in paragraph 2 above. 3 On 14 September 2006 the appellants filed further submissions in relation to the undertakings and the stay in accord­ance with directions made by Walton J, Vice-President on 11 Sep­tem­ber. It was submitted that upon Order 1 of the Orders made on 1 Sep­tem­ber 2006 taking effect, and in order to allow Harmers to act in this proceeding and pro­secute the appellants' application for leave to appeal and appeal, the Managing Part­ner of Harmers, Mr Joydeep Hor, would, subject to leave being granted, file a Notice of Change of Solicitor and become the solicitor on the record on behalf of Harmers for the appellants. It was noted that neither Mr Robert­son nor Mr Buffoni, who had already pro­vided undertakings to the Court, are prin­ci­pals of that firm. 4 To enable this step to occur, the appellants sought the leave of the Court to have Mr Hor as the solicitor on the record in this proceeding. In that respect Mr Hor proffered to the Court an undertaking in similar terms to those already provided in order to allow him to fulfil his obligations as solicitor on the record. Mr Hor's undertaking (signed on 13 September 2006) was in the following terms: I, Joydeep Hor, Managing Partner of Harmers Workplace Lawyers, Level 28, Market Street, Sydney, NSW 2000, undertake to the Industrial Court of New South Wales: 1. that upon the order (1) of the Court made on 1 September 2006 (paragraph 44 of the judgement of 1 September 2006) coming into effect: (a) Harmers Workplace Lawyers intend to file a notice of Change of Solicitors in which I will be the Solicitor on the Record on behalf of Harmers Workplace Lawyers for the Appellants; and (b) other than in conformity with my obligations as the Solicitor on the Record I will have no involvement in proceedings no. 2876 of 2006; 2. that I will have no involvement in proceedings no's. 5174 of 2004 and 4589 of 2005 3. that I shall not discuss or seek to discuss any matter concerning the proceedings in proceedings no 2876 of 2006 with anyone but Mr Gregory Robertson and Mr Brad Buffoni and shall not disclose to anyone else any information which comes to my knowledge or attention in respect of those proceedings; 4. to restrict access within the firm to all documents created by me or under my control (including any such documents stored electronically) in respect of proceedings no 2876 of 2006 and the Notice of Motion filed on 30 June 2006 in proceedings no 5174 of 2004 so as to permit access to them by only Mr Robertson, Mr Buffoni, any counsel briefed on behalf of the Appellants in the said proceedings and any employee of Harmers Workplace Lawyers who has signed an undertaking in the form of Schedule "B" of the attachments to the letter from Watson Mangioni Lawyers Pty Limited to the Acting President's Associate dated 17 August 2006. 5 As a consequence of Mr Hor giving the above undertaking it was requested on behalf of Mr Robertson and Mr Buffoni that each of them be released from paragraphs 2 and 3 of their undertakings dated 5 September 2006 but only to the extent necessary to allow them to discuss this proceeding (no 2876 of 2006) with Mr Hor in his role as solicitor on the record. 6 The respondents expressed concern at what they considered was a further deficiency in the manner in which Harmers Workplace Lawyers had been dealing with what the respondents regarded as a serious issue between the parties. They pointed to the reference in the proffered undertaking referred to in paragraph [22] of the interlocutory judgment of 1 September 2006 where Mr Robertson and Mr Buffoni were described as "principals or solicitors" whereas now it was being stated that neither of these two individuals were principals of the firm. 7 It was submitted that the omission of Mr Hor from the proposed undertakings was a "significant and rudimentary error." It was further submitted that the Full Bench in determining the application for the stay appear to have placed significant weight upon the anticipated effectiveness of the undertakings proffered and that this error must raise serious concerns as to the effectiveness of the undertakings. 8 We note the respondent's submissions. We have no doubt that Harmers and their lawyers understand the solemnity of their undertakings and the potential consequences if they are breached. Nor do we consider that the proposed amended undertakings warrant any different conclusion to that contained in our judgment of 1 September. 9 We further note that the respondents' position was that if the Full Bench was not minded to reconsider its position in respect of the granting of the stay that they did not cavil with the terms of the orders proposed by the appellants. 10 We consider that the undertakings proffered by Harmers Workplace Lawyers and its partners and employees on 5 September 2006, and by Mr Hor on 13 September 2006, are acceptable to the Court. We make the following orders: (1) Harmers Workplace Lawyers have the leave of the Court to have Mr Joydeep Hor as the solicitor on the record in this proceeding IRC No 2876 of 2006. (2) The Court releases Mr Gregory Robertson and Mr Brad Buffoni from para­graphs 2 and 3 of their undertakings dated 5 September 2006, but only to the extent necessary to allow them to discuss this proceeding IRC No 2876 of 2006 with Mr Hor in his role as solicitor on the record. (3) Notwithstanding Order (2) of the Orders made by the Court on 1 September 2006, Order (1) of those same Orders shall take effect from the date of these Orders. (4) Orders (1), (2) and (3) hereof shall take effect on and from today. (5) Costs are reserved. 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.