Anthony & Ors v Training Recognition Council & Anor [2002] QIRC 38 (2002) 169 QGIG 286

286 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE, 5 April, 2002 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Training and Employment Act 2000 – s. 230 – appeal from decision of training recognition council Kerry Anthony, Robert Chandra, James Chandra, John Mizzi, Peter Proctor, Derek Scott, Randall Scovell, Diane Thompson, Robert McGowan, Timothy Kershaw AND Training Recognition Council AND Murrays Australia Limited (Nos. AT13, AT14, AT15, AT16, AT17, AT18, AT19, AT20, AT21 and AT22 of 2002) COMMISSIONER BLOOMFIELD 21 March 2002 Appeal from decision of Training Recognition Council – Discovery of material – Request by respondent employer for non-disclosure to appellant trainees – Commercial sensitivity of material – Alternate form of material to be disclosed – Order to be issued. DECISION Background This decision relates to an application by Murrays Australia Limited for orders which would have the effect of limiting the appellant trainees’ access to certain material supplied by Murrays to the Training Recognition Council in support of its application to cancel training agreements which previously covered the various appellants. Such order was sought because of the alleged sensitivity of certain parts of the material. Whilst conceding that access to all of the documentation could, and should, be granted to the appellants’ legal advisers, Murrays sought that the material not be given to, nor disclosed to, the appellant trainees. The application was opposed by Gadens Lawyers on behalf of the appellants. On behalf of Murrays, Mr Humphreys referred me to various sections of the Industrial Relations Act 1999 and the Industrial Relations (Tribunals) Rules 2000 which he said empowered the Commission to make the requested orders. He also took me to a number of cases which dealt with the issue of disclosure of sensitive and/or confidential information. Mr Humphreys also submitted that his client’s commercial position could face serious prejudice if the material was made available to the applicants. This was particularly so given that some of them had now commenced work for direct competitors of the respondent employer. On behalf of the solicitors for the appellant trainees Mr Horneman-Wren, of Counsel, strongly objected to the width of the orders sought. He said much of the information relied upon by Murrays in its application to the Training Recognition Council for cancellation of the trainees’ traineeships was in no way sensitive and could be gleaned from a close reading of recent newspapers. He also said that s. 63 of the Training and Employment Act 2000, under which the cancellation was made, required the Council to decide applications for cancellation by fair procedures. “Fair procedures” should have resulted in the appellant trainees having access to all of the material which was to be considered by the Training Recognition Council, including the material now sought to be withheld. Mr Horneman-Wren also submitted the appellant trainees were entitled to have access to the material in order that they might instruct his instructing solicitors and, in turn, himself, so that the respondent employer’s assertions could be tested. If the appellant trainees were denied access to the material relied upon by the Council their rights would be severely restricted. He also said the respondent employer’s attempted reliance on the provisions of s. 679 of the Industrial Relations Act 1999 was misplaced. The respondent employer could not justify its application to the Training Recognition Council on incapacity to pay arguments and seek to deny access to that same material in related proceedings. If the respondent employer was concerned about disclosure of its financial position it could deal with that matter by seeking to have further proceedings dealt with in-camera, as contemplated by s. 679. However, even then, it could not deny access to its records. Mr Horneman-Wren also said the respondent employer’s interests could be protected because the appellants had a non-rebuttable duty not to make use of the information for purposes other than the current litigation. Finally, he said most of the material sought to be withheld was innocuous and the three particular graphs highlighted by the respondent employer were not sufficiently financially sensitive that they should be withheld from the appellant trainees. Conclusions Although the respondent employer sought to deny the appellant trainees access to all of the material placed before the Training Recognition Council it was abundantly clear from the submissions presented by Mr Humphreys that it sought to only restrict, or limit, the disclosure of three graphs which appeared at pages 4 and 5 of the letter sent to the Training Recognition Council on 30 January 2002 by Blake Dawson Waldron on behalf of the respondent employer. The three graphs record:– • Movements in driver hours over various months of the years 1999/2000, 2000/2001 and 2001/2002. • Movements in guaranteed hours of drivers versus actual hours of available work over approximately the previous twelve months. • Vehicle income earned per month over approximately the previous six months. Mr Horneman-Wren conceded that the third of the above graphs had some commercial sensitivity. Nonetheless, he urged that it be disclosed to the appellant trainees. After considering the three graphs, in the context of the respondent employer’s application to the Training Recognition Council, it seems to me that the interests of both the respondent employer and the appellant trainees can be protected if the graphs are converted to an index form. The respondent employer argued that Hayne JA (Supreme Court of Victoria, Court of Appeal) in Mobil v Guina Developments (1995) 33 IPR 82 at 87 made it clear that once information is revealed it cannot be forgotten. Confidentiality is destroyed once and for all. -- 1 of 2 -- 5 April, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 287 Whilst it is certainly true that His Honours’ remarks were directed at the result which would flow if documents were inspected by a trade rival, it is also possible that a former employee of Murrays who sighted the original graphs, which identify hours and dollars of income, would find it impossible to forget parts of the information once sighted. Accordingly, whilst Mr Horneman-Wren and Mr Sing, of Gadens Lawyers, might warn their individual clients about non-disclosure, there nonetheless remains, in my view, a risk that one of the appellant trainees might inadvertently (or otherwise) disclose some of the details that they might have seen to a direct competitor of Murrays. In that regard, hours of work available to Murrays at a particular time (or times) and the dollar income it received for that work in a particular month (or months) are figures which a trainee might reasonably recollect. Accordingly, I foreshadow that I will issue appropriate orders to allow the three graphs recorded at pages 4 and 5 of Blake Dawson Waldron’s letter to the Training Recognition Council dated 30 January 2002 to be restricted to the appellant trainees’ solicitors and their counsel only. However, the respondent employer is to prepare three other graphs which record the same information in index form. That material can be made available to the appellant trainees. The first graph should be prepared using figures from September 1999 as the base index of 100. Movements in driver hours in other months, over other years, should be calculated by reference to that base index. The second graph should be calculated showing guaranteed hours from the first date shown in the graph (the copy provided to the Commission is not legible) as the base index of 100 with guaranteed hours and actual hours on other dates calculated by reference to that base date. The third graph, although sensitive in whatever format, should also be calculated by reference to a base index of 100 as at July 2001. Subsequent movements should be calculated and recorded using that index as the base. The order which I shall prepare shall allow each of the appellant trainees to sight the new graphs which are to be prepared. However, the order will be worded so as to only allow the appellant trainees such access to the documents as is necessary to allow them to provide instructions to their solicitor and counsel, respectively. Copies of the graphs will not be able to be provided to the appellant trainees. This is because such graphs, whilst not providing original data, would nonetheless be of value to any trade rival of the respondent employer if they were inadvertently or deliberately passed on. I have decided to make this order because there are a number of individual appellants. If one of them breaches his “non rebuttable” duty not to disclose, the respondent employer would have great difficulty pursuing a remedy against the culprit (or culprits) because of proof issues. I make it clear that I would have viewed the whole matter quite differently if there was only a single appellant. On behalf of himself and his instructing solicitors, Mr Horneman-Wren gave the Commission an undertaking that the material sought to be withheld would not be disclosed to the appellant trainees pending determination of Murrays application. In the circumstances it is necessary that I record that it is now permissible for the appellant trainees’ solicitor to disclose to those that instruct it, all of the material thus far discovered with the exception of the graphs recorded at pages 4 and 5 of the letter of 30 January 2002 referred to above. The respondent employer is asked to produce substitute graphs, prepared as indicated above, as soon as possible and to make them available to Mr Horneman-Wren and his instructing solicitor immediately thereafter. The respondent employer is also put on notice that any request for similar material which covers the period immediately preceding that shown in graphs 2 and 3 will be favourably considered. Accordingly, the respondent employer may wish to pre-prepare such information in index form to expedite the processing of the appeal. The Commission will issue the necessary orders to give effect to this decision as a matter of priority. The Commission determines and orders accordingly. A.L. BLOOMFIELD, Commissioner. Appearances:– Mr A. Horneman-Wren, of Counsel, instructed by Gadens Lawyers, for the Appellants. Mr T. Torrens for the Training Recognition Council. Mr I. Humphreys, of Blake Dawson Waldron Lawyers, with Mr C. Goodwin, for Murrays Australia Limited. E -- 2 of 2 --