Industrial Relations Commission of New South Wales in Court Session CITATION : William John Lyons v Caltex Australia Petroleum Pty Limited [2001] NSWIRComm 11 APPLICANT: William John Lyons PARTIES : RESPONDENT: Caltex Australia Petroleum Pty Limited FILE NUMBER: 4891 of 2000 CORAM: Schmidt J CATCHWORDS : Unfair contract - interlocutory judgment - application to join further respondent - jurisdiction - indemnity order between parties LEGISLATION CITED : Industrial Relations Act 1996 Brown v Rezitis (1970) 127 CLR 157 Eslick v Exben Pty Limited (unreported, Boland J, 5 January 2001) CASES CITED : Nagle v Tilberg (1993) 51 IR 8 Robert Rolles and Others v Donald Scott Surgicals Pty Ltd and Anor (unreported, Fisher P, Cahill VP and Bauer J, 19 February 1988) Visalli v Southwell and Ors (1988) 12 NSWLR 502 HEARING DATES: 02/07/2001 EXTEMPORE JUDGMENT DATE : 02/07/2001 APPLICANT: Mr Bruce John Grimshaw SOLICITORS: Turner Freeman, Solicitors LEGAL REPRESENTATIVES: RESPONDENT: Ms Helen McKenzie SOLICITORS: Blake Dawson Waldron Lawyers JUDGMENT: - 4 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J DATE: 7 February 2001 Matter Number 4891 of 2000 WILLIAM JOHN LYONS v CALTEX AUSTRALIA PTY LIMITED Application under s106 of the Industrial Relations Act 1996 INTERLOCUTORY JUDGMENT (ex-tempore) 1 This judgment concerns a Notice of Motion brought by the respondent to the proceedings, Caltex Australia Petroleum Pty Limited, ('Caltex') in which it is sought that Mr Robert Edward Shepherd be joined as a respondent to the proceedings. 2 The application brought against Caltex by the applicant in the proceedings, Mr William John Lyons, under section 106 of the Industrial Relations Act 1996 ('the Act'), concerns the circumstances in which Mr Lyons' employment at Caltex came to an end. Mr Lyons seeks orders as to payments which he alleges should have been made to him on account of redundancy. 3 In advancing that claim Mr Lyons relies upon representations made to him by Mr Shepherd, then his superior at Caltex. Mr Shepherd confirms these representations were made by him, on his affidavit in accordance with his own superior's instructions. 4 The case to be advanced for Caltex includes that Mr Shepherd had no such instructions to make the representations in question to Mr Lyons; Mr Lyons ought to have known such representations were not authorised by Caltex; Mr Lyons knew he was not redundant; that Caltex had work for him and that, in any event, the representations were inconsistent with Caltex's written and communicated redundancy arrangements. 5 Caltex thus seeks the joinder of Mr Shepherd so as to pursue an indemnity order against him in the event that Mr Lyons' application against it is successful. 6 The parties were in agreement as to the relevant law. Firstly, it is not necessary for a person to be joined as a party to the proceedings before orders are made against that person in proceedings under section 106 (Visalli v Southwell and Ors (1988) 12 NSWLR 502 per Kirby J at 507). Secondly, however, questions of natural justice arise. Such persons are entitled to be heard before any such orders are made against them (Visalli at pp507-510). Thirdly, orders may be made against persons who are not parties to the contract or arrangement in question (Brown v Rezitis (1970) 127 CLR 157). Fourthly, joinder of the respondent may be ordered upon the application of another respondent (Robert Rolles and Others v Donald Scott Surgicals Pty Ltd and Anor (unreported; Fisher P, Cahill VP and Bauer J; 19 February 1988). Fifthly, employees of a respondent employer may be joined as parties to proceedings. 7 I note that these statements of the applicable law also accord with the recent decision of Boland J in Eslick v Exben Pty Limited (unreported, 5 January 2001), (not referred to in the parties' submissions). Boland J there reviewed the Court's powers in relation to joinder. That review, consistent with the position agreed between the parties as to the relevant law, confirms the jurisdiction of the Court to order the joinder of Mr Shepherd in these proceedings. 8 The parties were also agreed that the Court would have jurisdiction to make the indemnity orders sought by Caltex against Mr Shepherd. The position of the applicant, Mr Lyons, was that he did not wish to be heard in relation to the joinder application. The application was however opposed by Mr Shepherd, for whom it was submitted that the evidence would demonstrate that when making the representations in question, Mr Shepherd was acting in the course of his employment and in accordance with his instructions. In any event, Caltex, as his employer, was liable for his acts in the course of his employment and it would follow that no indemnity order would be made against him in favour of Caltex. Consideration 9 I agree with Boland J's analysis of the law in Eslick as to jurisdictional matters and do not repeat it here. There is plainly jurisdiction to order the joinder sought. I also agree with his Honour's approach, at paragraph 35, that this would be an inappropriate time to determine whether the indemnity orders sought against Mr Shepherd are likely to succeed. (See Nagle v Tilberg (1993) 51 IR 8). Such indemnity orders are conceded to be within jurisdiction within these proceedings. 10 The orders proposed by Caltex against Mr Shepherd might be unusual. Perhaps it is even unlikely that they would be entertained. Whether this is so will depend however, it seems, on the resolution of an evidentiary conflict between Mr Shepherd and witnesses to be called in the proceedings by Caltex, as well as a consideration of the applicable law. 11 In those circumstances, the practical and sensible way forward is to order the joinder of Mr Shepherd, so that all of the issues which lie between Mr Lyons, Caltex and Mr Shepherd in the circumstances which brought the applicant to the Court may be considered in the one proceedings. That practical consideration is what influenced the Full Bench in Donald Scott Surgicals in the joinder orders there made (at pages 13-18). It is of equal force here. 12 I have also been influenced in my conclusion by the concession that in the event that Caltex is not successful in obtaining orders against Mr Shepherd, it is at risk of a cost order being made against it in his favour in respect of these proceedings. Order 13 For all of these reasons, I order Robert Edward Shepherd to be joined as second respondent in these proceedings. 14 Costs are reserved. 15 The file will be referred back to the President for re-allocation. ------------------------ 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.