Industrial Relations Commission of New South Wales in Court Session CITATION : Electronic Tracking Systems Pty Limited & Anor v Metrocall Inc (Successor by Merger to ProNet Inc) & Ors [2002] NSWIRComm 74 FIRST APPLICANT: Electronic Tracking Systems Pty Ltd (ACN 051 973 856) SECOND APPLICANT: Glenn Miller PARTIES : FIRST RESPONDENT: METROCALL INC (Successor by merger to ProNet Inc) SECOND RESPONDENT: Jackie Kimzey THIRD RESPONDENT: Dave Vucina FILE NUMBER: IRC 6246 of 1998 CORAM: Schmidt J CATCHWORDS : Practice and Procedure - notice of motion - joinder - amendment to summons - reasons given for permitting contested amendment - leave granted - costs in the cause LEGISLATION CITED : Industrial Relations Commission Rules 1996 O'Brien v Australian Native Landscapes Pty Ltd & Ors (2001) 105 IR 409 CASES CITED : Richard Clapton v Festival Music Pty Ltd [1995] NSWIRC 130 (13 July 1995, unreported, Cullen J The State of Queensland & Anor v JL Holdings Pty Ltd [1996] 189 CLR 146 HEARING DATES: 04/11/2002 DATE OF JUDGMENT: 04/17/2002 APPLICANTS: Mr DD Knoll of counsel SOLICITORS: Dibbs Barker Gosling LEGAL REPRESENTATIVES: FIRST RESPONDENT: Mr JV Murphy of counsel SOLICITORS: Minter Ellison JUDGMENT: - 5 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J DATE: 17 April 2002 MATTER NUMBER IRC 6246 OF 1998 ELECTRONIC TRACKING SYSTEMS PTY LIMITED & ANOR v METROCALL INC (SUCCESSOR BY MERGER TO PRONET INC) & ORS Application under s106 of the Industrial Relations Act 1996 REASONS 1 On 11 April I granted leave to the applicants to amend the summons originally filed in November 1998 and to join as respondents to the proceedings, Mr Jackie Kimzey and Mr Dave Vucina. The joinder was not opposed, but the amendment of the summons was. There had been an earlier misunderstanding between the parties' legal representatives, that there was no objection by the respondent to the amendment. When the disagreement became clear, the question was listed for hearing. 2 This judgment gives my reasons for permitting the contested amendment. 3 The respondent's objections went to the unfairness of that course, given the nature of the amendments proposed; having in mind the time which had elapsed since the application was filed; the time which had elapsed since the events in question, which in some instances went back to 1991 and the various steps taken by the parties since the initiation of the proceedings. 4 The applicants' case was that no injustice was visited upon the respondent, because the amendments did not introduce new claims, but rather gave greater particularity in relation to complaints long known to the respondent; that the lapse of time had resulted from appeals pursued unsuccessfully by the respondent; that the amendments would assist the conciliation process and would not prejudice the respondent, given that it had not yet put on any response to the applicants' summons. Reference was also made to steps taken by the respondent in the United States before United States' courts and arbitrators, to enforce rights which the applicants sought to attack in these proceedings. 5 The circumstances in which the applicants came to seek leave to amend the summons were that after the proceedings were initiated in November 1998, the respondent asserted that the Court had no jurisdiction to hear the claim brought. Judgment was given on the matters so raised on 29 July 1999, dismissing the respondent's motion. The judgment was appealed and on 31 August 2000 the Full Court gave its judgment, dismissing the appeal. Special leave to appeal from that decision was sought from the High Court. On 22 June 2001 the High Court refused such leave. 6 In October 1999, Mr Miller, the applicant's managing director sought to be joined as an applicant in the proceedings. The respondent opposed the joinder. Leave was granted in a judgment of 10 December 1999. The respondent unsuccessfully appealed that decision. The Full Court giving its decision on 12 December 2000. 7 In January 2002 the respondent was granted a temporary injunction against the first applicant, which it had sought ex parte from the District Court of Dallas County Texas. That matter is listed for further hearing on 28 May 2002. The applicants complained that they did not have the means to be represented in those proceedings in the United States and that in the proceedings before the Texas Court, the respondent had not put before the Court the judgments of the Australian courts earlier referred to, in relation to these proceedings. 8 An arbitrator has also been appointed in the United States in accordance with the existing provisions of the contract here in question. The applicants drew to the arbitrator's attention the nature of these proceedings, which include an application to declare the arbitration clause itself void, and the course which this ligation has thus far taken, seeking that the arbitration be delayed, at least until after the conciliation of these proceedings. The arbitrator treated this as an application brought by the applicants for a stay of the arbitration, which the arbitrator declined to grant. 9 Under the Court's Rules, the respondent is obliged to file a response to the summons, ordinarily within 21 days of the expiry of the time for filing an appearance (Rule 18A(4)). That has not yet occurred, although its preparation is now in train. 10 The principles to be adopted in considering an application for leave to amend a summons such as this have been considered in a number of the authorities. In O'Brien v Australian Native Landscapes Pty Ltd & Ors (2001) 105 IR 409 Hungerford J referred at 415-8 to the approach outlined by the High Court in The State of Queensland & Anor v JL Holdings Pty Ltd [1996] 189 CLR 146. There it was said by Dawson, Gaudron and McHugh JJ at 155: 'In this case, which is of a commercial nature, the litigants are on the one side a developer and on the other side government, and there is nothing which would indicate any personal strain which would justify the conclusion that costs are not an adequate remedy for prejudice caused by the amendment sought to the pleadings. In our view, the matters referred to by the primary judge were insufficient to justify her Honour's refusal of the application by the applicants to amend their defence and nothing has been made to appear before us which would otherwise support that refusal. Justice is the paramount consideration in determining an application such as the one in question. Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties. In taking an opposite view, the primary judge was, in our view, in error in the exercise of her discretion.' 11 Applying such an approach to this case, the conclusion that the amendments sought to be made by the applicants must be allowed was unavoidable. The question of leave required the competing positions of the parties to be weighed, so that justice could be done between them. While a lot of effort and expense has already been expended by the parties, in reality, these proceedings are still at their commencement. The respondent has not yet taken the first real steps it required of under the Rules, apart from its appearance, namely filing its reply to the applicants' summons. 12 Some of the amendments proposed to be made to the summons expanded upon claims already made. More particularity was provided as to them by the amendments. It must be accepted that some new claims were also sought now to be advanced by the applicants, requiring the first respondent to investigate those matters, in addition to those it has already investigated. As to them, it was, however, not put by the respondent that this would have altered the course it had earlier taken in seeking to challenge the Court's jurisdiction to hear the claims. Nor was it argued that the views which the Court and the High Court in turn reached in relation to the Court's jurisdiction to determine the claims made, would have been any different had the new claims been advanced at the outset. The amendments, in part, sought to elucidate the claims which are advanced in relation to Mr Miller. Once he had been joined as an applicant in the proceedings, such an amendment was likely, even if not essential. 13 The respondent also relied upon various authorities dealing with the question of delay in initiation of proceedings. What was there made clear was that delay is a matter to which regard may be had by the Court in determining any claim advanced and may affect the orders ultimately made, if a claim is successful, including the date of operation of any order made in favour of the applicants. (See Richard Clapton v Festival Music Pty Ltd [1995] NSWIRC 130 (13 July 1995, unreported, Cullen J). Delay even in initiation of proceedings, however, does not readily lead to a rejection of the claims advanced, without any consideration at all. 14 It was for these reasons that I granted leave to the applicants to amend the summons. Costs of the motion are to be costs in the cause of the application. The matter has now been listed for conciliation at 4pm on 16 May. Directions have been given for its preparation. ------------------------ 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.