DECISION NO: 402/96 C A T C H W O R D S PRACTICE AND PROCEDURE - motion seeking amendment of title of respondent after judgment and orders entered - whether Court has power to vary a judgment or order after the entry of judgment - jurisdiction of Court to correct judgment or order which does not give effect to the intention of the Court in making the order INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT Industrial Relations Act 1988 s.170ED(2) Industrial Relations Court Rules Order 6, Order 13, Order 35, Order 42, CASES: Singh v Atombrook Ltd [1989] 1 All ER 385 (CA) McCarthy v Agard [1933] 2 K.B. 417 Arnett v Holloway [1960] V.R. 22 (F.C.) BARRY COOPER -v- KEITH W ALLAN & ASSOCIATES AND KALLAN NOMINEES PTY LTD No. VI 3513 of 1995 JANET COOPER -v- KEITH W ALLAN & ASSOCIATES AND KALLAN NOMINEES PTY LTD No. VI 3515 of 1995 MICHELLE MARGARET SIMONDS -v- KEITH W ALLAN & ASSOCIATES AND KALLAN NOMINEES PTY LTD No. VI 3516 of 1995 Before: Judicial Registrar Millane Place: Melbourne Date: 27 August 1996 INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 3513 of 1995 B E T W E E N : BARRY COOPER Applicant A N D KEITH W ALLAN & ASSOCIATES AND KALLAN NOMINEES PTY LTD Respondent VI 3515 of 1995 B E T W E E N : JANET COOPER Applicant A N D KEITH W ALLAN & ASSOCIATES AND KALLAN NOMINEES PTY LTD Respondent VI 3516 of 1995 B E T W E E N : MICHELLE MARGARET SIMONDS Applicant A N D KEITH W ALLAN & ASSOCIATES AND KALLAN NOMINEES PTY LTD Respondent MINUTES OF ORDERS Judicial Registrar Millane 27 August 1996 The Court Orders that in proceedings numbered VI 3513 of 1995, VI 3515 of 1995 and VI 3516 of 1995: 1. The title of the first respondent is amended to read Keith William Allan. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 3513 of 1995 B E T W E E N : BARRY COOPER Applicant A N D KEITH W ALLAN & ASSOCIATES AND KALLAN NOMINEES PTY LTD Respondent VI 3515 of 1995 B E T W E E N : JANET COOPER Applicant A N D KEITH W ALLAN & ASSOCIATES AND KALLAN NOMINEES PTY LTD Respondent VI 3516 of 1995 B E T W E E N : MICHELLE MARGARET SIMONDS Applicant A N D KEITH W ALLAN & ASSOCIATES AND KALLAN NOMINEES PTY LTD Respondent Before: Judicial Registrar Millane Place: Melbourne Date: 27 August 1996 REASONS FOR DECISION By Notices of Motion filed on 21 May 1996 and returnable on 28 May 1996 the applicants moved the Court for an Order that: 1. The name of the first respondent be amended to Keith William Allan trading as Keith W. Allan & Associates. The abovementioned Notices of Motion were supported in each case by the same Affidavit sworn by the applicants' solicitor, Christopher Lindsay Bunnett on 15 May 1996. In summary Bunnett deposed to the first respondent having failed to pay amounts in accordance with Orders made by the Court on 23 November 1995. This was despite attempts by the Sheriff to seize property from the business premises of Keith W. Allan & Associates. Because of the applicants' frustrated attempts to satisfy the judgment obtained against the first respondent Mr Bunnett's instructions are, he says, to institute bankruptcy proceedings against Keith William Allan, the proprietor of the business Keith W. Allan & Associates. The Affidavit makes no reference to any attempts to enforce judgment against the second respondent. Mr. Bunnett's Affidavit exhibits a copy of an extract of a document entitled "Business Name Details" showing that the business "Keith W. Allan & Associates" is a registered business name since 20 July 1973. The nature of the business is that of solicitor and the person carrying on that business since 20 July 1973 is Keith William Allan. The only other Affidavit material filed in relation to these Notices of Motion are two Affidavits of Service sworn on 28 May 1996 and 17 June 1996 respectively. On the first return of the Notices of Motion Mr Bunnett appeared for the applicants. There was no appearance for the respondents. The first Affidavit of Service showed then that service of the Notices of Motion and supporting Affidavit had been affected at the business address of Keith W. Allan & Associates alone but not on Keith William Allan. Accordingly, the hearing of the Notices of Motion was adjourned to a date to be fixed to enable service to be affected. In view of the evidence of the registration of the business name since July 1973, on the first return date I drew Mr Bunnett's attention to Division 2 of Order 42 (Partnership and Business Names) of the Industrial Relations Court Rules the provisions of which are set out in full below: "ORDER 42 - PARTNERSHIPS AND BUSINESS NAMES Division 2 - Individuals trading under a Business name 11. In this Division, "business name" means a name, style, title or designation under which a person carries on a business not being a name consisting of the name of that person and the name of each other person, if any, in association with whom that person carried on business, without any addition. 12(1) Where a claim is made against any person in respect of anything done or omitted or suffered in the course of, or otherwise relating to, a business carried on within Australia by that person under a business name: (a) if the business name is registered in a register in the State or Territory in which the business is carried on, which register discloses the name and residential address of the person - a proceeding shall only be commenced against that person in that person's own name or pursuant to Division 1; and (b) if the business name is not registered in a register referred to in paragraph (a) - a proceeding may be commenced against that person in that business name. 12(2) Where a proceeding is commenced against a person in a business name under paragraph 1(b): (a) that business name shall, for the purpose of the proceeding, be a sufficient designation of that person in any process; and (b) any judgment or order made in the proceeding may be enforced against that person. 13. The succeeding rules of this Order apply where a proceeding is commenced against a person, under paragraph 12(1)(b), in a business name. 14. Personal service of any document on the person may be made: (a) by leaving a copy of the document with the person; or (b) by leaving a copy of the document at the place where the business is carried on, with some person apparently engaged (as an employee or otherwise) in the business and apparently of or above the age of 15 years. 15(1) A person sued in a business name shall not enter an appearance except in the person's own name. 15(2) A person who enters an appearance in a proceeding in which he or she is sued in a business name shall file and serve with the notice of appearance a statement of the names and places of residence of all the persons carrying on business under that business name on the date of commencement of the proceedings. 15(3) Where a person fails to comply with subrule(2), the court may order that the appearance be struck out. 16. Where an appearance filed under subrule 15(2) discloses the names of other persons who carry on or who carried on business under that business name, a party may proceed in accordance with Division 1 or under this Division, both on the date of commencement or the proceedings and on the date (if any) specified in the application as the date on which the cause of action arose. 17(1) Where a proceeding is commenced against a person in a business name, the applicant shall, as soon as practicable, take all reasonable steps (whether by way of discovery of documents, interrogatories or otherwise) for the purpose of ascertaining the name of the respondent and shall, so far as practicable, make amendments so that the proceedings are continued in the person's own name and not in the business name. 17(2) Where an amendment is made under this rule, the mode of amendment and service after amendment shall be in accordance with Order 13, rules 8, 9 and 10. 17(3) A party may make an amendment pursuant to Order 13, rule 4 notwithstanding he or she has made an amendment under this rule. 18(1) A judgment or order against a person in a business name may be enforced by execution against any property of the business carried on under that name and, where the judgment or order is against partners in the partnership name it may be executed in accordance with rule 9. 18(2) In subrule (1), the expression "property of the business", in relation to a judgment or order against a person in a business name, means all property and rights and interests in property, originally brought into the business carried on under that name or acquired, whether by purchase or otherwise, on account of the business, or for the purposes and in the course of the business, being property, rights or interest of that person. 19(1) Notwithstanding rule 18, the Court may vary a judgment or order against a person in a business name so as to make it a judgment or order against that person in the person's own name, and when so varied, the judgment or order may be enforced accordingly. 19(2) Notice of a motion for a variation of a judgment or order under subrule (1) shall be served personally on the person against whom the judgment was given or the order was made, and paragraph 14(b) shall not apply to that service. 20(1) Where it appears to the Court that some person has or may have knowledge of facts, or has or may have in his or her possession, custody or power any document or thing, tending to assist in the ascertainment of the identity or description, of a respondent sued in a business name, the Court may, for the purpose of enabling amendments to be made under rule 17 or a variation of a judgment or order to be made under rule 19: (a) order that person to attend before the Court or an officer of the Court and be orally examined on any matter relating to the identity or description of the respondent; (b) order that person to produce any document or thing in his possession, custody or power relating to the identity or description of the respondent; and (c) if that person is a corporation or organisation order the corporation or organisation or any officer of the corporation or organisation to produce any document or thing in the possession, custody or power of the corporation or organisation relating to the identity or description of the respondent. 20(2) In subrule (1), "description", in relation to a respondent, includes the name, place of residence, place of business, occupation and sex of the respondent." The Notices of Motion were subsequently fixed for hearing on 18 June 1996 on which occasion the applicants were represented by Mr Ginnane of counsel and a solicitor Mr Lissek who told the Court that he appeared on behalf of K. W. Allan. Mr. Lissek opposed the orders sought. On the return of the second hearing date argument was heard from both sides. However, in an effort to provide a full opportunity to the parties to make submissions on my power to make the order sought a timetable was agreed to providing for the filing and service of written submissions before 9 July 1996. BACKGROUND On 20 November 1995 only three of the original five applications before the Court proceeded to hearing between 20 November 1995 and 23 November 1995 inclusive. The applicants all sought compensation arising out of the alleged contravention by the employer of the provisions of Division 3 Part VIA of the Industrial Relations Act 1988 ('the Act'). In addition to the principle claims made each applicant sought payment of various amounts allegedly representing accrued entitlements at the date of termination. The original applications before the Court were filed on 26 June 1995 naming Keith W. Allan & Associates as the employer. Attached to each application is a copy of a letter of termination displaying the letterhead "Keith W. Allan & Associates" and signed by K. Allan. Appearances were filed to each application on 3 July 1995. The appearance document in each case is signed by "Keith Allan Principal" which accords with the requirements of Order 42 Rule 15(1) set out above. Where the party appearing is required to complete the pro-forma document the following information has been provided concerning the details of the employer: Details of employer - name on the application 3 full name Keith Allan 4 Has the employee given your name correctly? Yes No - it is as in (3) 5 address 1 Military Road Avondale Heights 6 contact person family name Allan given name Keith - name (03) 3181622 fax (03) 318 6226 - phone 7 type company partnership sole trader government authority cooperative club other specify ........................... 8 Are you the true employer Yes No Who is? Give details In the appearances filed in the two Cooper applications" Yes" has been ticked against question 4. There is also a tick in the box next to the word "partnership" in question 7. The "no" box is ticked for question 8 underneath which is written "Kallan Nominees P/L 1 Military Road Avondale Heights". The Industrial Relations Court of Australia Victoria District Registry when referring each application to the Australian Industrial Relations Commission for conciliation in July 1995, appears to have incorrectly named the respondent as Kallan Nominees Pty Ltd because there was no order amending the name of or, adding any respondent to the proceedings. However, the Certificate subsequently filed in accordance with section 170ED(2) of the Act names the respondent as K. Allan & Associates. To confuse matters even further on 11 August 1995 the respondent who was represented by Keith W. Allan & Associates Solicitors filed Notices of Motion seeking a stay of proceedings until the hearing and determination of a proceeding in the County Court in which Keith William Allan and K. Allan Nominees Pty Ltd seek relief against, amongst others, the applicant Simonds. The Notices of Motion filed and the supporting documents all name the respondent as K. Allan Nominees Pty Ltd. On the return of the Notices of Motion on 15 August 1995 before a Judicial Registrar of this Court all parties were represented and the proceedings were set down for hearing on 20 to 24 November, 1995. At the same time the Court made orders for discovery of documents. At hearing in November 1995 the parties were represented by Mr. Ginnane of counsel for the applicants and Mr. McDermott of counsel for the respondents. My notes taken during the hearing indicate that early in the piece the Court queried the description of the respondents. At that time no business name search was produced or referred to however Mr. Ginnane initially formally applied to amend the respondent's name to Keith Allan & Associates. There was some argument then concerning the true identity of the employer because each employee had been employed at the solicitor's office before and after the date the corporate entity was incorporated and allegedly became the employer. None of these matters were fully argued before the Court because on the fourth day of hearing unopposed orders were sought and made finalising the proceeding in this Court. However, prior to the cessation of the hearing, on 22 November 1995 orders were sought and made as follows:- By consent order that: 1. Kallan Nominees Pty Ltd (ACN 006 248 764) be added as a respondent. And Further Order: 2. That the title of the Respondent be amended to read "Keith W. Allan & Associates and Kallan Nominees Pty Ltd (ACN 006 248 764). The proceedings continued following the making of the abovementioned orders until the following orders were handed up to the Court by the applicants' counsel and made by the Court, after an indication was given from the respondents' counsel that the orders sought to be made were not opposed: 1. Proceedings Nos VI 3513 of 1995, VI3515 of 1995 & VI3516 of 1995 be struck out. 2. The respondents to pay to Michelle Simonds her statutory requirements arising out of her employment with the respondents in the sum of $2118.00 within 21 days. 3. The respondents to pay to Janet Cooper her statutory requirements arising out of her employment with the respondents in the sum of $6780.00 within 21 days. 4. The respondents pay to Barry Cooper his statutory requirements arising out of his employment with the respondents in the sum of $944.36 within 21 days. 5. Payment of the above amounts to be paid by the respondents to the solicitor for the applicants Christopher Bunnett of 60 Park Road, Middle Park. Judgment was entered on 3 January 1996 in accordance with the orders made and since that time the Court files indicate that the enforcement of judgment against the named respondents has not been successful. The Court is now moved by the applicants to, they say, amend the name of the first respondent from Keith W. Allan & Associates to Keith William Allan trading as Keith W. Allan & Associates. It is conceded by Mr. Ginnane that the reference to "trading as Keith W. Allan & Associates" is an unnecessary addition to the title of the person the applicants seek to name as a respondent. There are a number of questions raised by the amendments sought. One is whether the Court as constituted is able to amend the name of a party to a proceeding after judgment has been entered? Another is whether what is sought is in fact the substitution or addition of a new party to the proceedings in circumstances where that person was never a party to the proceedings, even though it is perfectly clear that since the inception of the proceedings he has been aware of the proceedings and has participated as a witness in the proceedings. Indeed, Keith William Allan ("Allan") gave sworn evidence in November 1995 during the hearing telling the Court, amongst other things, that the applicants' employer was Keith Allan & Associates until November or December 1990 and thereafter the employer was Kallan Nominees Pty Ltd. The fact that there is and was an issue outstanding as to the identity of the true employer highlights just one of the difficulties in the Court now being asked to amend the name of one of the parties for the purpose of providing the applicants with an opportunity for enforcement. It is conceded by the applicants that in accordance with Order 42 Rule 12(1)(a) of the Industrial Relations Court Rules set out above the proceedings for each applicant should have been commenced against the person named in the Business Name register as carrying on the business since July 1973. That person according to the Business Name search provided to the Court was Allan and a search of the Business Name register at any time prior to the orders of the Court being made and entered would have disclosed this matter. At first sight the rules contained in Division 2 of Order 42 may seem somewhat idiosyncratic because there is express provision for the Court to vary its judgment or order made against a person in an unregistered business name so as to make it a judgment or order against the person thereby enabling enforcement against that person (see Order 42 Rule 19). In contrast, the Partnership and Business Names rules make no provision for a like variation of a judgment or order where a proceeding is commenced and continued in the name of a business, which is a registered business name, with the name and address of the proprietor disclosed in the register. Notwithstanding the difficulty Order 42 produces by not providing a direct mechanism for overcoming errors made in commencing and continuing proceedings in a registered business name, it is apparent from the structure of Division 2 of Order 42 and the sequence of the rules that the rules relating to unregistered business names are directed to assisting litigants in identifying, suing and enforcing judgment against persons operating an unregistered business where the identity of the proprietor and the true party to the proceeding cannot be easily obtained by reference to a public register of business names. The rules contained in Division 2 contemplate that an applicant, where the respondent is only identifiable by reference to a business or trading name, will take steps to identify the legal personality behind that name against whom judgment is obtained and enforced. A business name or description is not a legal personality and without the rules contained in Division 2 of Order 42 an applicant would not be able to name a business or trading name as a party to a proceeding. A registered business name, on the other hand, identifies the person who should be sued. It follows from what I have said that I do not accept Mr McDermott's contention that "the named respondents are legal entities capable of suing and being sued". I am fortified in this view by the provisions of the Business Names Act 1962 (Vic) which amongst other things only provides for registration of a business name in the name of a natural person or corporate entity (see for example section 7). Order 42 does not directly assist the applicants in this application; not being designed to assist them where a public register is available and readily provides them with the information necessary to describe the correct legal entity to be sued. This does not mean that they are necessarily without a remedy or that the Court is precluded from varying the title of the first respondent to correctly name the legal person sued. Order 13 of the Industrial Relations Court Rules generally provides for the amendment of documents and pleadings by the Court on application. However, by Rule 1 of that Order the Court's power to amend is restricted in as much as it provides that: "1. This Order does not apply to the amendment of a judgment or order or draft thereof." The applicants did seek to rely on Order 6 Rule 7(1) which provides as follows: "7. (1) A proceeding shall not be defeated by reason of the misjoinder of a party or the non-joinder of any person as a party. (2) The Court may in any proceeding determine the issues or questions in dispute so far as they affect the rights and interests of the parties." The applicants argue that the abovementioned rule demonstrates that the Court has power during the currency of proceedings to correct an irregularity where it is also argued that the fact that the proceedings continued in the name of a business and not that of its proprietor is an irregularity. I agree with counsel's proposition insofar as the applicants' contention points to the power of the Court to remove or join parties during the currency of proceedings in order to determine the issues between the correct legal entities. Whether or not the applicants' failure in the present cases to properly name the correct person in these proceedings is an irregularity capable of being cured after the entry of judgment is a separate matter altogether (for discussion of this issue see Singh v Atombrook Ltd [1989] 1 All ER 385 (CA)). Neither party referred me to any other Rules of the Court which might be relevant to determination of this matter; the applicants relying solely on what was described as the Court's inherent jurisdiction to amend a judgment or order which does not give effect to what the Court intended. However, it seems to me that Order 35 Rule 7(2)(e) and (3) provide the Court with the opportunity to do what the applicants seek. The subrules referred to provide that: "7. (2) The Court, where it is not exercising its appellate or related jurisdiction under Division 5 of Part XIV of the Act, may if it thinks fit vary or set aside a judgment or order after the order has been entered where: (a) ... (b) ... (c) ... (d) ... (e) the order does not reflect the intention of the Court; ... (f) ... (3) A clerical mistake in a judgment or order, or an error arising in a judgment or order from an accidental slip or omission, may at any time be corrected by the Court." In context the abovementioned subrules are remedial ones and should be given a beneficial interpretation by the Court. The applicants do, however, rely on a number of decisions to support their general contention that the Court has an inherent jurisdiction to correct an error in any judgment or order, which, owing to that error, does not give effect to what the Court intended to do. In other words the submission made to the Court is limited to corrections or variations of any judgment or order where they seek to accurately represent what was intended when making the judgment or order. This would seem to accord with Order 35 Rule 7(2)(e) and (3); so that if there is an error in a judgment or order by reason of the Court's misunderstanding of the law that error cannot be cured under the slip rule or any rule which allows the order or judgment to be varied after it has been entered because it does not reflect the intention of the Court. Such a misunderstanding and the error that flows from it would necessarily be the subject of the remedy of appeal or review (see generally McCarthy v Agard [1933] 2 K.B. 417). In its decision in Arnett v Holloway [1960] V.R. 22 (F.C.) the Full Court of the Supreme Court of Victoria had occasion to consider the meaning and application of a Rule of that Court which said: "Clerical mistakes in judgments or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court or a Judge on motion or summons without an appeal". The lastmentioned Rule is very similar to Order 35 Rule 7(3) set out above. In Arnott's case the Full Court expressed no view on the correctness of the trial Judge's observation that the applicable rule was confined to cases where the judgment as recorded has failed to express the intention of the Court. On the facts of that case the Full Court determined what it considered was the trial Judge's real intention when making his order for costs whilst taking into account the fact that neither counsel nor the trial Judge had adverted to the question of whether the costs were to be taxed on the County Court scale or the Supreme Court scale where there may have been an assumption that the costs of the case litigated in the Supreme Court would be paid on the Supreme Court scale. The finding of the Full Court was that the judgment entered failed to express the real intention of the Court which was to grant costs on the Supreme Court scale and, therefore, the judgment should be amended to give the plaintiff his taxed costs on the Supreme Court scale. In the present cases the parties sought consent orders during hearing which named as respondents both a corporate entity and a legal person in the name of a business. Obviously neither counsel turned their mind to the question of whether the description of the first respondent properly corresponded with the natural person or corporate entity actually being sued. Had they done so no doubt they would have drawn the Court's attention to the fact that it was a registered business name and the legal person intended to be sued was known, had filed an appearance in his own name and, was not only in Court instructing, but was also a witness in the proceedings. In acceding to the consent orders sought on 22 November 1995 as well as the unopposed final orders sought on 23 November 1995 the only intention the Court could properly have and did have was to ensure that a legal person was named as the first respondent as well as ensuring that any judgment or order made against a legal personality, even if it was made in the name of a business, was enforceable. Because of these matters I am satisfied that it is appropriate for me to vary the orders made and judgment entered, bearing in mind that at the very least the judgment in its present form does not reflect the intention of the Court to properly describe and make orders against the legal person operating in the business name. Accordingly, the order I make is that the title of the first respondent in each proceeding is amended to Keith William Allan. MINUTES OF ORDERS The Court Orders that in proceedings numbered VI 3513 of 1995, VI 3515 of 1995 and VI 3516 of 1995: 1. The title of the first respondent is amended to read Keith William Allan. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. I certify that this and the preceding fifteen (15) pages are a true copy of the reasons for decision of Judicial Registrar Millane. Associate: Dated: 27 August 1996 Solicitors for the Applicant: Mr Christopher Bunnett Counsel for the Applicant: Mr P. Ginnane Solicitors for the Respondent: Collins & Collins Counsel for the Respondent: Mr P. McDermott Date of hearing: 28 May 1996 and 18 June 1996 Date of decision: 27 August 1996