Industrial Relations Commission of New South Wales in Court Session CITATION : Toscana v Wedge Industries Pty Ltd [2003] NSWIRComm 260 APPLICANT ON THE MOTION Raffaele Antonio Toscano PARTIES : FIRST RESPONDENT ON THE MOTION Wedge Industries Pty Ltd SECOND RESPONDENT ON THE MOTION Robert Dye FILE NUMBER: IRC2152 of 2003 CORAM: Peterson J CATCHWORDS : Unfair contract - s106 - Notice of motion - Leave to join an additional respondent - Motion opposed - Whether a real connection with the contract can be established - Leave granted to amend summons - Costs reserved. LEGISLATION CITED : Industrial Relations Act 1996 s106 s170 Caltex Petroleum Pty Limited & Ors v Harmer [1999] NSWIRComm 565, 16 November 1999 North v Consolidated Gaming Corporation Ltd and Mark Rainbird v Consolidated Gaming Corporation Ltd [2000] NSWIRComm 258 CASES CITED : Bowker & Anor v Software Engineers Australia (NSW) Pty Ltd & Ors [2003] NSWIRComm 213 Byrnes v FRB Industries Pty Ltd & Anor [2001] NSWIRComm 250 Visalli v Southwell & Ors (1998) 12 NSWLR 502 HEARING DATES: 07/25/2003 EXTEMPORE JUDGMENT DATE : 07/25/2003 APPLICANT ON THE MOTION Mr A T Britt of counsel SOLICITOR Eleanor Murphy & Company BONDI JUNCTION. FIRST RESPONDENT ON THE MOTION Mr J Higgins LEGAL REPRESENTATIVES: EMPLOYER ASSOCIATION Civil Contractors Federation GIRRAWEEN. SECOND RESPONDENT ON THE MOTION Mr M Tzirtzilakis SOLICITOR Robilliard & Robilliard PARRAMATTA. JUDGMENT: - 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: PETERSON J DATE: 25 JULY 2003 Matter No. IRC2152 of 2003 RAFFAELE ANTONIO TOSCANA v WEDGE INDUSTRIES PTY LIMITED Application under s106 of the Industrial Relations Act 1996 INTERLOCUTORY JUDGMENT (Extempore) 1 HIS HONOUR: These proceedings were commenced by the applicant, as an individual, on 22 April 2003 against his former employer, Wedge Industries Pty Limited. The Motion now before the court seeks, in effect, to amend the proceedings by joining as the second respondent, Mr Robert Dye, the Managing Director and controlling shareholder of the first respondent, Wedge Industries Pty Limited. That application has been opposed. Section 170 of the Industrial Relations Act 1996 authorises the Commission to amend proceedings to the extent that the Commission considers that amendment "to be necessary in the interests of justice". 2 The Motion is advanced essentially on two bases. The first, consistent with the evidence that has just been called from Mr Dye in the proceedings on the Motion, goes to the matter of the cessation of trading by Wedge Industries on 30 June 2003. The second ground relates to an assertion that Mr Dye is culpably associated with the making or operation of the applicant's contract and/or its termination. 3 The principles applied by the Commission in determining matters of this kind where the applicant seeks to add a further respondent to proceedings have been dealt with now a number of times particularly by single members of the Commission, although Caltex Petroleum Pty Limited & Ors v Harmer [1999] NSWIRComm 565, 16 November 1999 - unreported may be a decision of the Full Bench on the point. The three decisions to which I have been referred are decisions by single members of the court: Justice Marks in North v Consolidated Gaming Corporation Ltd and Mark Rainbird v Consolidated Gaming Corporation Ltd [2000] NSWIRComm 258; Justice Schmidt in Bowker & Anor v Software Engineers Australia (NSW) Pty Ltd & Ors [2003] NSWIRComm 213; and a decision of my own in Byrnes v FRB Industries Pty Ltd & Anor [2001] NSWIRComm 250. In Byrnes v FRB Industries Pty Limited & Anor I identified the preliminary question in not dissimilar circumstances to be whether there appears: ". . . on the material before the Commission, a sufficient basis for considering that the party proposed to be joined may have a connection with the impugned contract or arrangement such that any substantive relief may be able to be ordered against that party. It is, of course, not necessary that such now appears in a final sense." 4 That seems to me to remain the question. I adverted to some observations of my brother judges. In North v Consolidated Gaming Corporation Ltd Marks J made the point that had the applicant in those proceedings chosen to discontinue and to issue a fresh summons naming the existing respondent and the individuals proposed to be added as respondents, that no complaints could be levelled against the applicants in that regard. His Honour thought that ought to be viewed as the test which should be used as the appropriate approach whether the amended application should proceed. 5 In Bowker & Anor v Software Engineers Australia (NSW) Schmidt J identified the question as whether a sufficient evidentiary basis has been established for the joinder sought. Whether the applicants were to be ultimately successful and orders made in their favour were questions to be determined from the evidence led in the proceedings. Her Honour emphasised that the applicant had not made out any basis for the relief being ordered against the proposed respondent. Her Honour mentioned the risk of costs orders being made against the applicants if not successful, in effect against the present and proposed respondent. 6 It seems to me that these cases lead to the conclusion in this case that the applicant ought to be granted leave to join Mr Dye in as a respondent. The risk of costs being ordered against the applicant in the matter has been well identified in the proceedings. 7 I am satisfied on the limited evidence available that the respondent has identified Wedge Industries as being capable, in the worst case scenario, of meeting any judgment that might be ordered against it, providing of course that circumstances do not change pending the conclusion of the proceedings. I say the evidence is limited in that regard because the valuation material that has been put before the court is not that of an expert valuer, but nevertheless, it does seem to me to lend sufficient support to Wedge Industries' position and the position of Mr Dye. The dilemma, however, seems to me to be the inability of the applicant to control the future conduct of the position of Wedge Industries' capacity to give Mr Dye control and possession in relation to Wedge Industries' assets. I consider it would be appropriate for that reason and also for the reasons that the applicant seeks to establish a culpable association, or as Priestly J put it in Visalli v Southwell & Ors (1998) 12 NSWLR 502, a real connection with the contract, that I should grant leave to amend. 8 I grant leave. I reserve the issue of costs. 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.