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Introduction

For some reason a Commissioner in an unfair dismissal matter requested that the applicant’s representative produce documents to the Commission relating to emails to and from the applicant and the commercial arrangements between the representative and his client.

The applicant’s representative requested a “stay” on the order, pending an appeal, and won.

Full decision: https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc8311.htm

Considerations

In the proceedings before the Deputy President, in connection with the preliminary jurisdictional question, the respondent applied for and was granted orders for the production of documents (being the order the subject of the appeal). The orders each sought two categories of documents from the applicants’ representative:

  1. Signed service agreement.
  2. Email correspondence(s) between the applicants’ and the applicants’ representative.

Let’s go fishing…

His Honour set out the principles applying to the determination of stay applications which are usually applied by the Commission are as stated in the decision of the Australian Industrial Relations Commission in Edghill v Kellow-Falkiner Motors Pty Ltd. There are two criteria for the grant of a stay:

“First, the Commission must be satisfied that there is an arguable case with some reasonable prospects of success in respect of both the question of permission to appeal and the substantive merits of the appeal. Second, the balance of convenience must positively weigh in favour of the grant of a stay”.

His Honour finding:

“…It is arguably an inappropriate exercise of the Commission’s jurisdiction…to require a paid agent who is providing industrial relations advice and representation to an applicant to produce documents which will disclose the advice which has been given to the applicant by their representative. In this case, it is a proposition that I consider to be arguable that an analogue to the privilege which applies to dealings between a lawyer and their client should be applied in this case. The second proposition…is that the orders represent a fishing expedition, in that this is not a case where the respondent has identified a particular document which it knows exists which will assist its case. Rather it appears to me that what [the respondent] is doing via these orders is looking for documents which may or may not exist and which may or may not support its case, and that is arguably a fishing expedition”.

Accordingly, the stay order was granted.