Cape York Land Council Aboriginal Corporation v Gersten [2004] QIRC 99 (2004) 176 QGIG 157

11 June, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 157 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 273, 274, 329 – application for further directions and another Cape York Land Council Aboriginal Corporation AND Joseph M. Gersten (No. B739 and B382 of 2004) COMMISSIONER FISHER 28 May 2004 Application for Further Directions – Application to strike parts of amended application – Industrial Relations Act 1999 – Sections 273, 274 – District Court proceedings – Different respondent in District Court proceedings – Application for stay of four paragraphs – Commission prepared to hear further submissions re stay application if District Court proceedings commence proximate to hearing date – Application for further discovery – Documents relating to Sydney legal practice – Documents to be disclosed – Affidavit to be provided regarding transfer of legal files – Further Directions to issue. DECISION The Cape York Land Council Aboriginal Corporation (CYLCAC) has two applications before the Commission. One seeks an order that various paragraphs of the amended application filed by Joseph Gersten be struck out. (Mr Gersten has made an application B2041 of 2003, pursuant to s. 276 of the Industrial Relations Act 1999 (the Act) that his contract with CYLCAC be amended or declared void.) The second application seeks the discovery of documents relating to Mr Gersten’s practice as a Solicitor in Sydney prior to commencing employment with CYLCAC. I shall deal with the applications in the order they were argued. Case No. B739 of 2004 – Application to Strike Out This application seeks to strike out four parts, containing a number of paragraphs each, of Mr Gersten’s amended application on the grounds that they are irrelevant and incapable of supporting relief under s. 276 of the Act. The last part is also sought to be struck out on the grounds that it is an abuse of process. Mr Watson, who appeared for Mr Gersten, conceded that the Commission has the power to strike out part of an application. He agreed with Mr Martin SC, Counsel for CYLCAC, that the power is probably found in s. 273 or s. 274 of the Act. The Commission is prepared to proceed to determine the application on the basis that power to strike out part of an application is found in either of these two sections. I do not propose to repeat here the arguments advanced by Mr Martin SC in support of the application by CYLCAC or the counter arguments, supported by extensive case law, put by Mr Watson. I have however taken all of the material put before me into consideration in reaching my decision. The application made by CYLCAC is not without its attractions. However, I have decided not to strike out any paragraphs of the application because as Mr Watson demonstrated by reference to case law, especially decisions of the New South Wales jurisdiction, that contracts have been found to be unfair for similar reasons to those advanced in the disputed paragraphs. Many of the issues determined in the unfair contract cases to which Mr Watson took the Commission have not been argued in other applications lodged pursuant to s. 276 of the Act. It is premature for the Commission to determine in interlocutory proceedings whether s. 276 of the Queensland Act is capable of bearing the same meaning as the unfair contract provisions of New South Wales legislation, either present or past. Mr Martin SC argued that in the event the Commission decided not to strike out paragraphs (ba) to (bf) of the amended application in Case B2041 of 2003 then those parts should be stayed pending the resolution of proceedings relating to the same subject matter in the District Court. Paragraphs (ba) to -- 1 of 2 -- 158 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 11 June, 2004 (bf) of the amended application is headed “Consequences of Mr Ah Mat’s abusive conduct towards the Applicant”. Mr Ah Mat is the Chief Executive of CYLCAC. Although Mr Martin SC conceded that the District Court proceedings had been instituted by Mr Gersten against Mr Ah Mat personally and the s. 276 application named CYLCAC as the respondent, justice would be better served if the proceedings in the District Court were allowed to conclude before dealing with a similar subject in the Commission. In opposing the application for a stay Mr Watson noted the different respondents in the two proceedings. He also made the point that what is being argued in the proceedings before the Commission is that the contract became unfair because of the consequences of Mr Ah Mat’s conduct as it affected the employment relationship. That distinguished these proceedings from those commenced in the District Court. The Commission was advised that the pleadings in the District Court matter have closed. No further information about the future conduct of that application was able to be given. For reasons not of the Commission’s making, Case B2041 of 2003 has been listed for hearing in the week commencing 27 September 2004. Given the length of time this application has been on foot, I am reluctant to stay part of it. It would be desirable to have the whole of the application heard at the one time. While I note the submission of Mr Watson regarding the difference in the nature of the two proceedings, I am concerned that there is potential for duplication of matters in the District Court and in the Commission. I would be prepared to hear further submissions from CYLCAC about a stay of paragraphs (ba) to (bf) of Mr Gersten’s amended application in the event the District Court proceedings commence or are about to commence on a date proximate to the date of hearing of the Commission in Case B2041 of 2003. Case B382 of 2004 – Application for Discovery This application seeks the discovery of documents relating to Mr Gersten’s practice as a Solicitor in Sydney that he gave up to commence work at CYLCAC. Mr Martin SC said that the matters to which the documents related were put in issue by Mr Gersten’s amended application. Mr Watson contended however that Mr Gersten’s pleading in relation to his past practice was so incidental to the claim being made that the Commission should not consider it. Moreover, there has to be an end to discovery and disclosure. I accept that whilst Mr Gersten has himself put his practice in issue, the extent to which it has been done is not as significant as CYLCAC argued. In my view to grant the orders for discovery sought by CYLCAC is beyond that which is necessary and may be construed as a fishing expedition. Accordingly, I limit the order sought to the following: That Joseph M. Gersten disclose to CYLCAC: 1. all documentation evidencing or concerning his ability to practise as a Solicitor in New South Wales for the years 2001 and 2002 whether that be as an employee or on his own account; 2. (a) he personal tax returns submitted by him for the financial years ending June 2002 and June 2003 in the event he practised as a Solicitor in New South Wales as an employee; or (b) in the event he practised on his own account, his personal tax returns and any firm or company tax returns relating to the operation of his legal practice for the financial years ending June 2002 and June 2003. In relation to documents concerning the transfer of files from the practice of Joseph M. Gersten upon closure to another practice, to limit the discovery and to avoid claims of legal professional privilege, Mr Gersten is to prepare an affidavit swearing to the number of files transferred, nominating the firms to which the files were transferred, how many files were transferred to each firm and the consideration received on transfer or to be received on finalisation of the files. A Further Directions Order shall issue with this decision providing the date for discovery and the provision of the affidavit, the dates for the filing of witness statements and the dates of hearing. In my view the interlocutory applications should now be at an end. The parties should focus their attention on preparing for the hearing. Order accordingly. G.K. FISHER, Commissioner. Hearing Details: 2004 12 May Appearances: Mr G. Martin SC (instructed by Miller Harris) on behalf of Cape York Land Council Aboriginal Corporation. Mr K.F. Watson (instructed by Carter Newell) on behalf of Joseph Gersten. -- 2 of 2 --