Industrial Relations Commission of New South Wales CITATION : Narda Tapia v Emibarb Pty Limited t/as The Lagoon Seafood Restaurant [2004] NSWIRComm 186 APPLICANT: Narda Tapia PARTIES : RESPONDENT: Emibarb Pty Limited t/as The Lagoon Seafood Restaurant FILE NUMBER: IRC 1551 of 1998 CORAM: Schmidt J CATCHWORDS : Unfair Contract - costs of proceedings - notice of motion - respondent seeking orders for joinder of agent and employer - unincorporated association - representation order against member of the Executive of the Association - joinder of agent ordered - joinder of Executive member refused LEGISLATION CITED : Industrial Relations Act 1996 Amos Removals & Storage Pty Ltd and Others v Small and Others (1981) 2 NSWLR 525 CASES CITED : Banfield v Wells-Eicke [1970] VR 481 Narda Tapia v Lagoon Seafood Restaurant [2003] NSWIRComm 341 Smith v Yarnold & Ors (1969) 2 NSWLR 410 HEARING DATES: 06/25/2004 DATE OF JUDGMENT: 06/25/2004 APPLICANT: No appearance LEGAL REPRESENTATIVES: RESPONDENT: Ms M Stubbs of counsel JUDGMENT: - 8 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J DATE: 25 June 2004 Matter Number IRC 1551 of 1998 NARDA TAPIA AND LAGOON SEAFOOD RESTAURANT Application by Narda Tapia for relief from victimisation pursuant to section 213 of the industrial Relations Act 1996 JUDGMENT 1 By notice of motion filed on 15 June 2004 the respondents sought orders joining Ms Fay Campbell and Mr Paul Raymond Matters as parties to these proceedings, for the purpose of the costs orders which they seek. Judgment in the matter was given by Glynn J on 22 October 2003 (Narda Tapia v Lagoon Seafood Restaurant [2003] NSWIRComm 341), dismissing the application brought by Ms Nardia Tarpia under s213 of the Industrial Relations Act 1996 ('the Act'). 2 The hearing of the motion eventually proceeded ex parte. While Mr Nolan of counsel appeared for Mr Rorris, the current Secretary of the South Coast Labour Council, he withdrew when it was confirmed that no orders were sought against Mr Rorris. 3 The application initiating these proceedings was filed on Ms Tarpia's behalf by the South Coast Labour Council. Mr Matters, then Secretary of the Council, appeared for Ms Tarpia in the proceedings. On some occasions the then Assistant Secretary of the South Coast Labour Council, Mr Brad Welsh appeared in his place. When Mr Matters no longer had a position with the South Coast Labour Council, he continued appearing for Ms Tarpia in the proceedings. Ms Campbell was a member of the Executive of the South Coast Labour Council at the relevant time and was called to give evidence in Ms Tarpia's case. 4 The orders were sought against Ms Campbell on a representative basis, pursuant to provison made in Part 8 Rule 13 of the Supreme Court Rules, this Court itself having no practice in this regard. (See Rule 89 of the Court's Rules). It was the respondent's case that the Court had power to make orders against the South Coast Labour Council as the employer of Mr Matters and as the applicant's agent in the proceedings. The position of the South Coast Labour Council, given that it is an unincorporated association, however raised questions as to how it might properly be joined. This was why orders were sought against Ms Campbell. 5 The orders sought were: 1. It be ordered that Fay Campbell be joined as a defendant (sic) to these proceedings to enable Fay Campbell to: (a) (i) be sued on her own behalf and on behalf of all the members of the executive of the South Coast Labour Council during the period 27 March 1998 to 1999; and/or (ii) be sued on her behalf and on behalf of all the members o the South Coast Labour Council during the period 27 March 1998 to 1999 (b) (i) be sued on her own behalf and on behalf of all the members of the executive of the South Coast Labour Council during the period 1999 to 2000; and/or (ii) be sued on her behalf and on behalf of all the members of the South Coast Labour Council during the period 1999 to 2000 (c) (i) be sued on her own behalf and on behalf of all the members of the executive of the South Coast Labour Council during the period 2000 until 20 June 2000; and/or (ii) be sued on her behalf and on behalf of all the members of the South Coast Labour Council during the period 2000 until 20 June 2000; as liable either directly and/or vicariously and/or on the grounds of agency and/or as arising from the fact of employment of Mr Matters for all or such part of the costs of proceedings No. 1551 the Commission may in these proceedings Order. 2. It be ordered that Paul Raymond Matters be joined as a defendant (sic) to these proceedings. 3. The costs and incidental to this Notice of Motion be costs in the cause. 6 The Rules of the South Coast Labour Council were attached to an affidavit of Ms Vania Harrison sworn on 15 June 2004. Rule 3 indicates that it is an unincorporated association of various unions. Rule 4 makes provision as to how unions might take up membership. Which unions were members at the relevant time was not a matter addressed in the evidence. There was no evidence as to who the members of the Executive were at the relevant time, although this information was apparently provided by the South Coast Labour Council in answer to a subpoena. Rule 19 of that body's Rules, indicates that four trustees are to be appointed from the Council 'in whom all property of the Council shall be invested'. There was no suggestion that Ms Campbell was a trustee, or that orders were sought against the trustees. 7 It was submitted that Ms Campbell herself was a member of the South Coast Labour Council. There was no evidence that this was so. The Rules do not provide for personal membership, other than in the case of Life Members, provided for in Rule 33. 8 Under the Rules, membership gave a union the right to elect a delegate or delegates, who could participate in various meetings, committees or groups of the Council, depending upon the size of the particular union's membership (See Rules 4 and 5). The Rules require that the Council meet every alternate Wednesday evening to deal with various matters, including the report of the Executive. (Rule 11). The Executive is elected annually from the delegates of Council, which also has the power to fill vacancies (Rules 18 and 23). Rule 24 prescribes the Powers and Duties of the Executive as: The executive shall exercise the will of Council by implementing the decisions of Council and acting on behalf of Council, subject always to the necessity of conforming to such directions as may be imposed from time to time by Council and subject to the authority of Council to amend or reverse decisions made by it. 9 As to Ms Campbell, it was put in the motion that: 7. Doreen Fay Campbell was an Executive Member of the South Coast Labour Council during the relevant period and the executive was responsible for the conduct of Paul Raymond Mattes in the discharge of his employment duties and responsibilities. The executive alone or on behalf of the South Coast Labour Council is either directly and/or vicariously liable in whole or part for any costs order which may be made in relation to Paul Raymond Matters. 8. Those persons holding office as Executive Members of the South Coast Labour Council during the relevant period were responsible for the conduct of Paul Raymond Matters in the discharge of this employment duties and responsibilities and as such shall be directly liable and/or vicariously liable and/or liable on principles of agency and/or liable arising from the employment of Mr Matters in whole or part for any costs order which may be made in relation to Paul Raymond Matters. 10 It was submitted that the members of the Executive had a 'complete unanimity of interest' in relation to 'the cause of action or liability sought against them ...'. It was further submitted that: The High Court held that it may be sufficient to show that there is a significant question of fact or law that has a common relevance to the persons to be represented: the question of law is the amenability of the unincorporated body, the South Coast Labour Council, to an order for costs of proceedings conducted under their auspices and by their employee on either a direct basis, arising out of a failure to supervise or a failure to adequately supervise their employee or as vicariously liable for the conduct of the proceedings and/or or the commission of a tort by their employee. See Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398. Consideration 11 There is no doubt that the Court may award costs in proceedings such as this under s181 of the Act. Part 27 of the Court's Rules deal with costs orders against solicitors, barristers and agents and envisages that if such an application is to be considered, that they must be given a reasonable opportunity to be heard. 12 It follows that the joinder of Mr Matters, for that purpose must be ordered, he having appeared for the applicant throughout the proceedings, even after he ceased occupying a position with the South Coast Labour Council. On that basis alone, he must be joined. Whether orders might be made against him in relation to the prior period and whether in those circumstances, the South Coast Labour Council might be vicariously liable for his conduct in these proceedings, may be a question which arises for consideration at some stage. It does not arise for determination at this point. 13 The joinder of Ms Campbell is, however, problematic. Undoubtedly, she was a member of the Executive of the South Coast Labour Council at the relevant time and that is an identifiable class of people. Nevertheless, there was no evidence that she was herself a member of the Council, or appointed a trustee under its Rules. Membership of the Council is restricted to various unions, apart from life membership. It was not suggested that Ms Campbell was a life member. I cannot see, in those circumstances, any basis upon which she personally may be joined to these proceedings. 14 It was clarified that while representational orders were sought against Ms Campbell on behalf of other members of the Executive, they were also sought against her on behalf of the members of the South Coast Labour Council. It was also conceded that there had been no service of the motion upon any union a member of the South Coast Labour Council at the times in question. 15 It is clear that representational orders may only be made in circumstances where the interests of the class in question are the same. On the material, I am unable conclude that the interests of members of the Executive of the South Coast Labour Council and the members of that unincorporated association, are the same. In my view, given the Rules in evidence, they are quite different. 16 Under the Rules, unions who are members of the Council have the right to appoint delegates to the Council, who may also be elected to hold office in the Executive. The Rules specify the duties and powers of the Executive. It may be that members of the Executive thereby become the means by which the Council attends to its business and affairs. There is no suggestion under the Rules however, that thereby, those individuals became members of the Council, or personally liable for the acts and omissions of that body, or its agents or employees. 17 Various authorities were relied upon by the respondent to support their submissions. I could not conclude that in fact, they did so. For example, Amos Removals & Storage Pty Ltd and Others v Small and Others (1981) 2 NSWLR 525 concerned representative orders sought against the members of an unincorporated union, with some 800 members. Nineteen of those members involved in the management of the union were selected as the representatives, they having participated in an alleged conspiracy and thereby being found to have the same interests. 18 Those circumstances are entirely different to those here under consideration, where the association is one comprising unions and the representation order is sought against a member of the Executive of the association, not a member of the association itself. At 530, Hunt J also discussed the need for it to be established that those selected to be representative 'must be shown to be in the management of the group or class and to have control of its funds'. This was not addressed before me and given the Rules in evidence, is something about which I am entirely doubtful could be established in relation to the members of the Executive. 19 Similar conclusions flow in relation to Banfield v Wells-Eicke [1970] VR 481 where at issue was the position of an unincorporated cricket club, members of which were persons, some of whom were elected to the club's committee of management. The point at issue was the changing membership of the association over time. Nevertheless, for present purposes, it is quite apparent that the nature of the Executive here in question, is entirely different to that of the club committee, because the members of the Executive were not shown to be members of the association. 20 Likewise in Smith v Yarnold & Ors (1969) 2 NSWLR 410, orders made against the members of the committee of an unincorporated club were found to have been validly made, because the committee members were themselves members of the Club and because the action was one in contract. The committee members were found to be contracting parties; they having been found to have pledged their own credit for the duties which they had undertaken. 21 The authorities show that in any case such as this, much will depend on the rules of the unincorporated body in question and the evidence before the Court. In this case, if orders are to be made against the Council, as an unincorporated association, it seems to me that they must be directed to the members of that body, or perhaps to the trustees. Ms Campbell and the other members of the Executive have not been demonstrated to be either. It follows that her joinder cannot be properly ordered, even on a representative basis. 22 This conclusion does not have the practical result, as the respondent submitted, that unincorporated associations such as the South Coast Labour Council may not be dealt with by this Court. Such unions, if for example, registered under the Act, have the status of body corporates. (See s222.) Similar consequences flow from registration under Federal legislation. 23 It rather means that the steps which are required be taken to bring the members of the Association before the Court have not properly been taken. It is noted, for example, in Ritchie's Supreme Court Procedure NSW at [8.13.1] that an 'essential precondition' to the making of a representational order is that 'numerous persons' be involved in the proceedings and that five has not been regarded as numerous. Here, there has been no service upon any member of the association in question; no member or members of the association have been identified as the proposed representative of the other members; there is no evidence as to who the members were at the time, or even how many they comprised. 24 It is difficult to see how, in such circumstances, it could be concluded that the 'essential preconditions' to the making of such an order have been satisfied. Orders 25 For all of these reasons, the joinder of Mr Matters is ordered and the joinder of Ms Campbell refused. ------------------------ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.