DECISION NO:71/97 CATCHWORDS INDUSTRIAL LAW - JURISDICTION - COURT POWERS - PRACTICE AND PROCEDURE - applicant naming family trust as respondent - respondent admitting employment but alleging different entity - whether misdescription - whether amendment should be allowed. Industrial Relations Court Rules O13. Établissement Baudelot v R. S. Graham & Co. Ltd (1953) 2 QB 271 Bridge Shipping Pty Ltd v Grand Shipping S.A. (1991) 173 CLR 231 Green v Philippines Consulate General [1971] VR 12; Konrad v Victoria Police (unreported, IRCA, Murphy JR, 16 December 1996); SmithKline Beecham (Australia) Pty Ltd v Minister for Family Services (1993) 45 FCR 587 WATSON v SALVATORE MATERIA and ANNA MARIA MATERIA as trustees for the SAM MATERIA FAMILY TRUST VI96/2175 Before: MURPHY JR Place: WARRNAMBOOL Date: 17 FEBRUARY 1997 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI96/2175 BETWEEN: JOELENE WATSON Applicant AND SALVATORE MATERIA and ANNA MARIA MATERIA as trustees for the SAM MATERIA FAMILY TRUST Respondent BEFORE: MURPHY JR PLACE: WARRNAMBOOL DATE: 17 FEBRUARY 1997 REASONS FOR DECISION Delivered ex tempore I have been asked to make a preliminary ruling as to whether these proceedings are void as they have been issued against a non-juristic person, namely the Materia Bros. Salvatore Family Trust. The applicant issued these proceedings against the Materia Bros. Salvatore Family Trust. Her application was signed by herself and by her solicitor. Prior to issuing the proceedings she had been issued with an Employment Separation Certificate that described the employer as Materia Bros., and a reference that had described the employer as Materia Bros. signed by "A. Materia". "A. Materia" is also listed as signing the Employment Separation Certificate as the owner of the employer. In its Notice of Appearance the respondent affirmatively answered the question: "Are you the true employer?" When asked to choose the type of entity it has ticked "other" and specified "Family Trust". In the Notice of Appearance the employer stated that the employee had not given the name of the employer correctly. The employer entered as the correct name, "Sam Materia Family Trust". The issue is whether the applicant can seek under Order 13 to amend the proceeding to specify the correct name of the respondent. Counsel for the respondent Mr Mazzone, who appears under protest, asserts that that cannot be done as the application is void ab initio because the named respondent cannot be sued as it is a trust. I do not accept the submission. I am satisfied that principles in Établissement Baudelot v R. S. Graham & Co. Ltd (1953) 2 QB 271 apply. There a plaintiff was suing and asserted it was a body corporate. It turned out that it was not a body corporate but Birkett LJ said at 285: "Nevertheless I think the first inquiry in order to establish this argument is whether Établissement Baudelot represented something existing. The answer to that question can only be that it did." In Bridge Shipping Pty Ltd v Grand Shipping S.A. (1991) 173 CLR 231 at 245, Dawson J said: "It may sometimes be difficult to determine whether there was a mistake in name or mistake in identity. When that is so and an amendment is sought under r.36.01, the question can only be resolved by asking whether, it all the circumstances, it can reasonably be said that the party whose name is sought to be amended would remain the same in all but name or description if the amendment were allowed. If so, then there is misnomer or misdescription and the rule applies notwithstanding that, as a matter of formality, the amendment results in the substitution of another entity. If not, and the effect of the amendment would be, not to correct the name of the party, but it alter the identity of the party, then that rule does not apply." So in this case the question is whether the respondent as named Materia Bros. Salvatore Family Trust or Sam Materia Family Trust represented something existing and I am satisfied on the evidence of the applicant, and indeed the other documents that have been submitted, that it did represent something existing, namely the entity that employed the applicant in a fruit shop in Warrnambool. It follows from this that this is a case of misnomer, that the Rules of Court under O.13 address. This is a case where the applicant was attempting to bring proceedings against her employer and an amendment sought to correct the name of that employer would not alter the true identity of the respondent. Unlike Green v Philippines Consulate General [1971] VR 12, this is not a case where the named defendant in that case did not exist in any form or in any like form, or even Konrad v Victoria Police (unreported, IRCA, Murphy JR, 16 December 1996) where the true written agreement of Mr Konrad was with the State of Victoria. That case, therefore, is distinguishable. I am satisfied that the principles in Bridge Shipping (above) and in SmithKline Beecham (Australia) Pty Ltd v Minister for Family Services (1993) 45 FCR 587 are applicable. Here I am satisfied that an amendment to properly name the respondent would not be a case of altering the identity of the party but merely correcting the name of the party. I invite counsel for the applicant to indicate what amendment he seeks to make to the name of the respondent. I will order that the name of the respondent in this proceeding henceforth be Salvatore Materia and Anna Maria Materia as trustees for the Sam Materia Family Trust. I certify that the three (3) preceding pages are a true copy of the reasons for decision of Murphy JR as recorded in the transcript and revised by the Judicial Registrar. Associate: KAREN HALSE Dated: 17 February 1997 APPEARANCES Counsel appearing for the applicant: MR P BURCHARDT Solicitors for the applicant: D MADDEN & CO Counsel appearing for the respondent: MR A MAZZONE Solicitors for the respondent: DESMOND DUNNE & DWYER Date of Hearing: 17 FEBRUARY 1997 Date of Ruling: 17 FEBRUARY 1997