Industrial Relations Commission New South Wales Medium Neutral Citation: McVicar v Boral Transport Limited [2013] NSWIRComm 46 Hearing dates: 7 June 2013 Decision date: 12 June 2012 Jurisdiction: Industrial Relations Commission Before: Boland J, President Decision: The Commission orders the following: 1. Prayer 1 of Respondents summons is struck out. 2. The documents in respect of which the Respondent has taken an objection in its Notice of Motion shall be produced. Catchwords: Contracts of Carriage - Contracts terminated Claims for compensation - Interlocutory proceedings - Motions to strike out summonses for production - Whether documents sought relevant or oppressive - Whether legal professional privilege attaches to certain documents - Determined that documents to be produced Legislation Cited: Evidence Act 1995 Industrial Relations Act 1996 Category: Interlocutory applications Parties: Jeff McVicar Pty Limited (Applicant) MJB Haulage Pty Ltd (Applicant) Campbell Plus Pty Ltd (Applicant) Boral Transport Limited (Respondent) Representation: Transport Workers' Union of NSW (Applicants) Australian Business Lawyers & Advisors (Respondent) File Number(s): IRC 186, 187 and 188 of 2013 interlocutory decision 1These matters concern claims for compensation by four contract carriers against Boral Transport Limited ("the respondent") pursuant to s 346 of the Industrial Relations Act 1996. The claims followed the termination of the contracts of the four carriers by the respondent on 1 March 2013. The carriers asserted the termination of their contracts was harsh, unjust or unconscionable. 2The Tribunal attempted conciliation pursuant to s 348 of the Act, but settlements were not achieved. The matters will proceed to arbitration before the Contract of Carriage Tribunal on 2-5 September 2013. Notices of motion 3On 15 May 2013, the applicants filed a notice of motion seeking to set aside parts of summonses for production issued at the request of the respondent. On 16 May 2013, the respondent filed in the Tribunal a notice of motion seeking to set aside parts of summonses for production issued at the request of the applicants. This decision deals with those motions. Applicants' motion 4In relation to the applicants' motion, that part of the summonses sought to be set aside concerned copies of taxation returns, prepared for and on behalf of the individuals standing behind those companies who are the applicants in the proceedings, for the financial years 2004/2005 to 2011/2012 inclusive. The basis of the strike out motion was relevance. It was submitted what was relevant was the fairness or otherwise of the termination of the applicants' contracts. Goodwill was relevant to the question of compensation to the applicant, not to a director of the applicant. 5The respondent submitted the financial affairs of the individual directors and the financial affairs of the applicants were likely to be "closely intertwined." In those circumstances, the documents sought had apparent relevance in relation to issues such as the effect of the payment of goodwill and the way in which the goodwill was treated at the time. 6Secondly, it was submitted for the respondent that income flowing to the individual directors was relevant as a matter going to the fairness or the merit of the applications on the basis that it seemed to be suggested the applicants were forced by some form of duress to extend their hours of work and, as a result, subverted the respondent's rules. It was submitted that would be difficult to sustain in circumstances where the applicants were making a very good income, as opposed to circumstances where the individuals were making a very marginal income. 7As the applicants submitted, goodwill is relevant to the question of compensation to the applicant, not to a director of the applicant. Further, the income of the directors of the applicants is not relevant. If the amount of income earned is relevant to a question of fairness - and it is moot whether that is so - it is the income earned by the applicants. 8Prayer 1 of the respondent's summons is struck out. Respondent's motion 9In relation to the respondent's motion, it first sought to have set aside various elements of the applicants' summons relating to the company's "SmartTrack" system, its human resources policies, particularly relating to discipline, and breaches of the company's fatigue policies. The bases of the respondent's objection were essentially relevance and the oppressive nature of the summons in relation to certain of the documents. The motion also sought to set aside certain other documents over which the respondent claimed legal professional privilege. 10In dealing with the first group of documents, I refer to Schedule A to the respondent's notice of motion. In relation to category 3 documents, the respondent contended these were not relevant to any issue in dispute. According to counsel for the applicants, documents that would be caught by category 3 were relied upon by the respondent in coming to a decision to terminate the contracts. This was not denied by the respondent. The documents shall be produced. 11In relation to category 4, it was asserted what was sought was incomprehensible and, in any event, not relevant. In my opinion, any document, draft or otherwise, relating to a procedure for dealing with alleged breaches of discipline or breaches of policy by the carriers that may lead to disciplinary action against them, and which was relied upon by the respondent in terminating the contracts, is relevant. The documents shall be produced. 12In relation to category 5, it was asserted the documents sought were not relevant. The applicants submitted the Drivers' Manual arguably formed part of the relevant contracts and deals with illegal behaviour. Given the reasons the contracts were terminated, included illegal behaviour, it seems to me any amendment or foreshadowed amendment to the Manual for the period nominated are relevant. The documents shall be produced. 13Category 7 sought a copy of the respondent's human resources policies current as at 1 March 2013. Such policies could only be relevant in so far as they applied to the contract carriers and then, it seems to me, only in respect of discipline, termination of contracts and SmartTrack. Provided the documents are so limited they shall be produced. 14Category 10 sought documents referring to or authorising offers of ex gratia payments (less deductions for prior overpayments) contained in the 1 March 2013 letter from the respondent to each of the applicants. It was asserted the documents were not relevant. The documents are relevant to the question of compensation and fairness. The documents shall be produced. 15The respondent submitted that what was sought in category 12 was incomprehensible. I tend to agree with the respondent. However, if I understand the applicants' explanation, what was sought was the period of notice that is required either under the contract or under the respondent's policy to terminate a contract and the amount of notice required to be given to a carrier to remedy a breach of the contract. If I am correct in that interpretation, the documents sought are clearly relevant to the fairness of the terminations. The documents shall be produced. 16Category 15 sought documents recording fatigue breaches under the respondent's SmartTrack policies in relation to the four applicants. The applicants claimed that in respect of them the respondent had not followed its policies regarding fatigue breaches. It is unlikely that in the five years the SmartTrack system has been operating there would be a large number of breaches recorded. The summons is not oppressive. If SmartTrack policies have not been applied or applied inconsistently, that is a matter that is relevant to fairness. The documents shall be produced. 17Category 16 sought documents recording or referring to SmartTrack fatigue breaches by hauliers (other than the applicants) engaged in contracts of carriage over the period 1 March 2012 to 1 March 2013. Category 17 sought documents recording or referring to disciplinary action to be or having been taken in relation to SmartTrack fatigue breaches in the period 1 March 2012 to 1 March 2013. The applicants contend, inter alia, that they were discriminated against in having their contracts terminated in that other carriers who have committed breaches were not dealt with in the same way. The documents sought are relevant to this issue including any documents recording the taking of disciplinary action against other carriers. The request is limited to a 12 month period and is not oppressive. The documents shall be produced. 18The second group of documents was objected to on the grounds of legal professional privilege. The documents consist of: (1) an email dated 15 February 2013 from Daniel Sleeman, Employee Relations Manager for the respondent, to various officers of the respondent with an attachment dated 15 February 2013 advising of potential breaches by up to five hauliers regarding tampering with the SmartTrack system; (2) an email dated 15 February 2013 from Mr Sleeman to a Ms Tanne, apparently an officer of the respondent, attaching the same attachment as that referred to in (1) above; (3) an email dated 1 March 2013 from Mr Sleeman to Matt Butler, an officer of the respondent, and a reply from Mr Butler of the same date regarding the hauliers; and (4) an email dated 28 February 2013 from Greg Price to Grant Lawrence, officers of the respondent, replying to an earlier email from Mr Lawrence regarding the termination of haulier contracts. Mr Sleeman and other Boral officers were copied. An email dated 1 March 2013 from Mr Lawrence, Regional HR Manager for Boral to Mr Price, with copies to Mr Sleeman and other Boral officers regarding actions to be taken against hauliers. 19The respondent agreed that I should inspect the documents in arriving at a decision whether the documents were subject to privilege. 20It seems to have been assumed that the Evidence Act 1995 applies to the proceedings. I do not think it does: see the definition of "NSW court" in the Evidence Act and s 351(1) and s 163(1) of the Industrial Relations Act. 21Nevertheless, using the Evidence Act as a guide I am of the view ss 118 and 119 would not apply. Mr Sleeman is a lawyer and holds a current practising certificate. He also fulfils the role of Employee Relations Manager for the respondent. My view of the documents is that Mr Sleeman's role did not involve him engaging in confidential communications for the dominant purpose of him providing legal advice. Nothing in the communications could be regarded as legal advice. Accordingly, s 118 would not apply. 22Section 119 creates a privilege for confidential communications made, and confidential documents prepared, for the dominant purpose of a lawyer providing legal services relating to litigation. At the time the communications were made no proceeding was pending. Even if it could be successfully contended a legal proceeding was anticipated (although there is no indication this was the case) Mr Sleeman was not providing professional legal services; he was merely communicating as an employee relations manager might do in the circumstances. 23The documents shall be produced. Orders 24The Commission orders the following: (1)Prayer 1 of Respondents summons is struck out. (2)The documents in respect of which the Respondent has taken an objection in its Notice of Motion shall be produced. ********** 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. Decision last updated: 12 June 2013