Industrial Relations Commission of New South Wales in Court Session CITATION: Regan & Anor v Redeemer Baptist School Ltd & Anor (No 2) [2006] NSWIRComm 198 FIRST APPLICANT Robyn Janet Regan SECOND APPLICANT Micah Timothy Regan PARTIES: FIRST RESPONDENT Redeemer Baptist School Limited SECOND RESPONDENT Redeemer Baptist Services Limited FILE NUMBER(S): 1100 of 2005 CORAM: Staff J CATCHWORDS: Unfair contract - Application to join additional respondents - Unincorporated association - Whether Elders of Church constitute an identifiable class - Whether Elders of the Church have a real or close connection - Open to the Court to conclude that the Elders of the Church may well have had a real connection with the making, variation or avoidance of the contract - Order made joining named persons operating the Church as a respondent - Industrial Relations Act 1996 (NSW), Section 106 - Uniform Civil Procedure Rules 2005, Part 7.4 - Industrial Relations Commission Rules 1996 (NSW), Rule 89(5) Industrial Relations Act 1996 LEGISLATION CITED: Industrial Relations Commission Rules 1996 Uniform Civil Procedure Rules 2005 Bradley Egg Farm Limited v Clifford [1943] 2 ER 378 Brown v Rezitis (1970) 127 CLR 157 Carlton Cricket and Football Social Club v Joseph [1970] VR 487 CASES CITED: Ermogenous v Greek Orthodox Community (2002) 209 CLR 95 Kibby v Santiniketan Park Association [1999] VR 861 Regan & Anor v Redeemer Baptist School Limited & Anor [2006] NSWIRComm 58 Rozier v Lutheran Aged Care on the Central Coast Inc (2002) 118 IR 280 HEARING DATES: 25/05/2006 DATE OF JUDGMENT: 06/22/2006 FIRST AND SECOND APPLICANTS Ms E Brus of counsel Solicitor: Mr S Dooley Dooley & Associates FIRST AND SECOND RESPONDENT LEGAL REPRESENTATIVES: Mr TJ Dixon of counsel Solicitor: Mr B Quilty Glasheen & Quilty THIRD RESPONDENT Mr J Phillips SC Solicitor: Mr G Phillips Carroll & O'Dea JUDGMENT: - 1 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: STAFF J 22 June 2006 Matter No IRC 1100 of 2005 ROBYN JANET REGAN AND ANOTHER v REDEEMER BAPTIST SCHOOL LIMITED & ANOR (No 2) Application under s 106 of the Industrial Relations Act 1996 JUDGMENT [2006] NSWIRComm 198 1 On 3 March 2005, Robyn Janet Regan ("the first applicant") and Micah Regan ("the second applicant") filed a summons for relief under s 106 of the Industrial Relations Act 1996 ("the Act"). The named respondents were the Redeemer Baptist School Limited ("the first respondent") and Redeemer Baptist Services Limited ("the second respondent"). 2 A notice of motion was filed on 8 September 2005 by the applicants seeking to file an amended summons joining Noel Cannon, Ian Cannon, Jonathan Cannon, Phillip Bailey, Russell Bailey and Maxwell Shaw operating the Redeemer Baptist Church, as the proposed third respondent. For convenience, I propose to refer to these persons as the third respondents. Background 3 On 24 February 2006, in Regan & Anor v Redeemer Baptist School Limited & Anor [2006] NSWIRComm 58, I dismissed a notice of motion filed by the second respondent which sought to have parts of a summons for production issued by the applicants to the second respondent trading as the Redeemer Baptist Church ("the Church") set aside. 4 The applicants' grounds for joinder are set out in an affidavit of Simon James Dooley, solicitor, sworn 8 September 2005. Relevantly, Mr Dooley deposed: … 3. The First and Second Respondent subsequently filed a Reply in the proceedings alleging that the work was carried out by the Applicants for and on behalf of the proposed Third Respondent. 4. The First and Second Respondent subsequently filed a Reply in the proceedings alleging that the relationship was between the Applicants and the proposed Third Respondent. … 5 The orders sought in the notice of motion were opposed by Mr T J Dixon, counsel for the first and second respondents and by Mr J Phillips SC, counsel for the proposed third respondents. 6 The summons contends that a contract of employment existed between first applicant and the first respondent. The first applicant asserts that she was employed in a variety of roles including the school registrar's assistant, school registrar, a registered nurse and OH&S nurse. She contends that awards made by this Commission regulated her employment. It is alleged that during the course of her employment that she did not receive her entitlements under a number of awards. Further, the first applicant claims losses arising from the sale of the family home and the taking of the proceeds by the first respondent minus repayments. Losses are also alleged through the taking of a bank cheque for $15,000 by the first respondent for which no repayments have been made. Relief is also sought in respect of this loss. 7 The second applicant was a student of the first respondent. He contends that he had an employment contract with the second respondent as a builder's labourer and as a general assistant which commenced in November 2003 and ended in October 2004. It is alleged that the second applicant has not received payment in respect of his statutory entitlements. 8 It is common ground that the first applicant had performed duties of Registrar and Registrar's Assistant as well as nursing duties for the first respondent from in or about July 1994 until November 2004. It is acknowledged that the first applicant received payments from the Church. In her tax returns, the first applicant listed the Church as her employer, not the first respondent. 9 The essential points of contention between the first applicant and the respondents are whether the first applicant was employed by any of the respondents; whether the payments to the first applicants constituted remuneration from the respondents; whether the work provided by the first applicant was voluntary and whether a contract existed between the parties. 10 The first and second respondents contend that the second applicant was never employed by the second respondent, or any other ministry of the Church. Further, it is contended that the second applicant was never employed by these entities; not bound by any contract to these entities; never remunerated by the respondents and voluntarily contributed his services to the Ministries of the Church. 11 The interrelationship between the Church and the first respondent, second respondent and the proposed respondent is a complex matter. It is outlined in the reply to the summons filed by the first and second respondents on 30 June 2005. It relevantly contained statements or allegations that the first respondent: (a) Was at all material times a ministry of the non-profit, unincorporated Redeemer Baptist Church; (b) Was operated by members of the Ministry Order of Redeemer Baptist Church on a voluntary basis; (c) Was governed by a board of directors comprised of persons who held the position of Elders of the Redeemer Baptist Church; (d) Had a membership comprised of persons who held the positions of Elders of the Redeemer Baptist Church; (e) Was incorporated for the purposes of delivering educational services for members of the Redeemer Baptist Church congregation and the public; and for promoting the Redeemer Baptist Church's activities. 12 The second respondent in the reply made allegations of fact and law as follows: (a) It was a ministry of the not for profit, unincorporated Redeemer Baptist Church; (b) It employed from time to time no more than three people; (c) It was staffed by, inter alios, members of the Ministry Order of the Redeemer Baptist Church on a voluntary basis; (d) It was governed by a board of directors comprised of persons who held the position of Elders of the Redeemer Baptist Church; (e) Its membership comprised of persons who held the positions of Elders of the Redeemer Baptist Church; (f) It was incorporated for the purpose of promoting the activities of the Redeemer Baptist Church. 13 The Ministries of the Church include the first and second respondents as well as the Redeemer Baptist Church Property Limited and the Redeemer Community Aid Limited which were non-profit public companies governed by a Board of Directors and a membership comprised of the Elders of the Church. 14 It is alleged by the first and second respondents in the reply that a Ministry Order came into effect in or about 1992. Further, it is stated in the reply that the Order contained the following obligations: (a) All members of the Ministry Order must undertake any duties as specified by the Elders of the Church; (b) All members must renounced in principle any possession of property upon joining the Ministry Order and shall be held by the Church in stewardship and became available to the Redeemer Baptist Church for use in any of its ministry; (c) Members of the Ministry Order agree to make any self-sacrifice to promote the benevolent and charitable activities of the Church; (d) The Elders of the Church have a responsibility for the care and wellbeing of members of the Ministry Order; (e) The Church may pay a stipend to members of the Ministry Order at the discretion of the Elders to allow members to promote the Church's benevolent and charitable activities; (f) The Elders of the Church have responsibility for the care and wellbeing of the members of Ministry Order; (g) The members of the Ministry Order commit to voluntarily perform regular prayer, teaching, missionary work, and care of the poor and elderly; (h) The Minister Order was to be funded by the Church where possible and at the discretion of the Elders of the Church. Evidence 15 Ms E Brus of counsel, who appeared for the first and second applicants, tendered an affidavit of Luke Benjamin Mitchell, the solicitor representing the applicants, to illustrate the common link between the respondents. An historical extract from the Australian Securities and Investment Commission ("ASIC") database was attached to his affidavit. 16 The ASIC extract provided that the directors for the first and second respondents were: Noel Cannon, Phillip Bailey, Ian Cannon, Jonathan Cannon and Maxwell Shaw. Mr Shaw was also secretary for both the first and second respondents. The extract also provided that Church was registered as a business name and its corporate proprietor was the second respondent. The Church ceased to be the trading name of the second respondent as at 25 January 2006. 17 Mr J Phillips of senior counsel, who appeared for the proposed third respondents, tendered an affidavit of Mr G Phillips, solicitor for the proposed third respondents dated 12 May 2006. Mr G Phillips deposed that one of the proposed respondents, Mr Russell Bailey, was an Elder of the Church and stated that in 2004 the Church members comprised six Elders; 108 members in the Ministry Order and 237 members of the congregation of the Church. 18 The first and second respondent filed an affidavit of Mr R Bailey which was attached to the reply to the summons dated 30 June 2005. Relevantly, the affidavit provided as follows: ... 2. I am authorised to swear this affidavit on behalf of the First and Second Respondents in these proceedings. 3. I believe that the allegations of fact set out in the Reply to Summons for Relief under Section 106 are true and correct to the best of my knowledge, information and belief. Submissions 19 Ms Brus submitted that it is obvious from the its inception that the operations of first and second respondents are closely connected to the proposed third respondents. 20 Counsel submitted that the Elders at the relevant time were the proposed third respondents. The directors of the first and second respondents were identified as the proposed third respondents. Counsel stated that it is precondition that the directors and members of the first and second respondents be the Elders of the Church. This is supported by the ASIC extract and an annexure to the affidavit of Mr G Phillips which set out the numbers of Elders, the Ministry Order and the congregation. All of the named Elders are directors of the first and second respondents, except for Mr R Bailey. 21 Ms Brus further submitted that it was apparent that the Church, which is an unincorporated association, was subject to the control and direction of the Elders of the Church and the proposed third respondents. Counsel contended that the Elders have exclusive power and control over the distribution of assets of the first and second respondents. 22 Ms Brus submitted that the members of the proposed third respondents, as the directors of the first and second respondents and Elders of the Church bear the sole responsibility for the directions provided to the applicants in their respective employment. Counsel submitted that the Church could be viewed as the ultimate beneficiary of the monies received by the first and second respondents and the work executed by the applicants. The interests of the Church supersede the interests of the first and second respondents. 23 The applicants primarily relied on the English Court of Appeal decision of Bradley Egg Farm Limited v Clifford [1943] 2 ER 378 where the majority found that persons cannot be excluded from litigation simply because they are a part of an unincorporated association. 24 Counsel for applicants submitted that there is "a sufficient connection" in this case as required by the decision of the High Court in Brown v Rezitis (1970) 127 CLR 157 to enable orders to be made in respect of the proposed third respondents at a final hearing. 25 Counsel also relied upon the principle in Ermogenous v Greek Orthodox Community (2002) 209 CLR 95 that by simply identifying someone as being a servant of the church does not vary the nature of the legal relationship. 26 Ms Brus finally submitted that the Elders were a distinct group within the Church, and as all the Elders were named as the proposed third respondents in this joinder application, it was contended that this was not a representative action. 27 Mr Phillips who appeared for the proposed third respondents submitted that Church is not an unincorporated association, but rather it is an unincorporated body. Counsel submitted that the difference between these entities was legal relations inter se. Unlike an unincorporated association, an unincorporated body did not have a contract between its members. Mr Phillips relied on a decision of the Victorian Supreme Court in Kibby v Santiniketan Park Association [1999] 1 VR 861 for this contention. 28 Senior counsel submitted that an unincorporated club is like a crowd. Clubs have fluid membership throughout their history and as a matter of construction a purported contract may refer to members of such a club constituted over time. Mr Phillips submitted that there can be no contract under such circumstances: Carlton Cricket and Football Social Club v Joseph [1970] VR 487. 29 Mr Phillips further submitted that this action creates the legal impossibility of the first applicant being both an applicant and a respondent. He stated that as this is a matter in which an ex member of the Church, the first applicant, undertakes an action against all the members of the Church for monies which is said to accrue during a time in which the first applicant was a member, this necessarily requires the first applicant to name herself in the action. 30 It was submitted by Mr Phillips that the applicants had undertaken a representative action. Senior counsel submitted that the proceedings before me was a representative action. The proposed respondents were not sued in their individual capacity but as representatives of the Church. In the circumstances, senior counsel submitted that Pt 7.4 of the Uniform Civil Procedure Rules 2005 should apply. The proposed respondents would need to have the same interests as those they represented, that is the Church. 31 Mr Phillips also submitted that the applicants could not prove that the representatives, the proposed third respondents, and the represented persons, the Church, have a community of interest in the proceedings required for a representative action. For this submission, senior counsel relied on the decision of Boland J in Rozier v Lutheran Aged Care on the Central Coast Inc (2002) 118 IR 280. 32 Finally, Mr Phillips submitted that Brown v Rezitis is not relevant as there is nothing which demonstrates that the proposed third respondents benefited personally, did anything wrong, or could be said to be capable of benefiting from any contracts or arrangements, if there were any in existence, with the applicants. 33 Mr Dixon, counsel for the first and second respondents adopted the submissions of the proposed respondent. Counsel submitted that there was no evidence advanced by Ms Brus that demonstrated any member of the proposed third respondents was an Elder of the Church, and if the proposed third respondents occupied such a position. Mr Dixon conceded that the Elders were a discrete body within the greater body of the church. Consideration 34 These proceedings involve claims by the applicants for relief from alleged unfair contracts or arrangements between the applicants and the respondents. The relief sought in the amended summons includes, an order declaring that the conduct of the respondents, including that of the proposed third respondents, in relation to the applicants' employment was unfair in circumstances where the applicants did not receive their entitlements under awards made by this Commission; and further the first applicant suffered losses arising from the sale of the family home with the proceeds being received by the first respondent. 35 I deal firstly with the issue of whether the Church is an unincorporated association. 36 The respondents have argued that the Church is not an unincorporated association, which is in contrast to the position taken in Regan & Anor v Redeemer Baptist School Limited & Anor. Mr Dixon, in that matter submitted at [11] that the Church is an unincorporated association. 37 In Kibby v Santiniketan Park Association, Mandie J discussed the characteristics of an unincorporated association. His Honour stated at [41] - [42]: [41] An association has of course no separate or distinct existence apart from its members. It is a voluntary combination of persons with some object or purpose in common (see Amos v Brunton (1897) 18 NSWR (Eq) 184, 186-7). If the association has assets, they belong subject to the rules, to the members for the time being (see Doust v Attorney-General (1904) 4 SR (NSW) 577, 583). The rules do not necessarily constitute an enforceable contract between the members (Cameron v Hogan (1934) 51 CLR 358) ... [42] In Watson & J v A G Johnson Ltd (1936) 55 CLR 63, Latham CJ said, speaking specifically about clubs (at p67): "The club in question is what is known as a members' club and it accordingly has no juristic existence apart from its members. What is called a profit of the club really consists of moneys paid by members into a common fund and remaining unexpended in the fund. A club is, as Griffiths CJ said in Bohemians Club v Acting Federal Commissioner of Taxation , 'a voluntary association of persons who agree to maintain for their common personal benefit, and not for profit, an establishment the expenses of which are to be defrayed' by contributions made by these persons." and Starke J said (at p68): "... The club is not a juristic entity: it is not even a partnership, it is simply a voluntary association of a number of persons for the purpose of affording its members and their friends facilities for social intercourse and recreation, and the usual privileges, advantages and accommodations of a club. The property acquired for or arising from the conduct of the club, though vested in trustees, belongs to the general body of members. The interest, however, of each member in the general assts of the club exists only during membership, and is not transmissible: it is a right of admission to and enjoyment of the club while it continues..." 38 His Honour continued at [50] - [51]: [50] ... I consider the essence of an "association" may be described as some form of combination of persons (with a common interest or purpose) with a degree of organisation and continuity at least sufficient to distinguish the combination from an amorphous or fluctuating group of individuals and with some clear criteria or method for the identification of its members. [51] I do not think that a name or title, or the existence of a written constitution or rules governing the combination, or the existence of some form of contract between the members, is an essential characteristic, but clearly the existence of one or more of these would go a long way towards satisfying the need for some degree of organisation and continuity and for the satisfactory identification of members. Likewise, the existence of office bearers, a committee and a bank account are relevant to a degree of organisation... 39 The Church was registered as a trading name from November 1996 to 25 January 2006. Its ministries are comprised of not for profit public companies which are governed by a board of directors comprised of the Elders of the Church. There is a ministry order document which came into effect on or about 1992 which outlines the obligations for the Ministry Order and the Elders of the Church. Further, the evidence demonstrates that the Elders of the Church serve as the executive body for the Church. These factors appear to me to demonstrate the necessary organisation and continuity required to find, for the purposes of determining this motion, that the Church is an unincorporated association. Although the Church does not have written rules or a constitution, Mandie J in Kibby rejected the notion that written rules or a constitution are required to prove the existence of an unincorporated association. 40 I turn now to deal with the application to join the proposed third respondents to these proceedings. 41 The question for determination in respect of the application for joinder is whether there is a real or close connection of the requisite kind as required by Brown v Rezitis between the proposed third respondents and the first and second applicants. Barwick CJ observed at 165 in Brown v Rezitis: Whilst it can be said that the expression "in connection with" is of wide import, it does emphasize the need for a close connexion between the order made and the contract or arrangement varied or avoided. 42 There can be no doubt that this Court has the power to join persons who are not necessarily parties to a contract sought to be avoided under s 106 of the Act: see s 170 of the Act; r 83(c) of the Industrial Relations Commission Rules 1996 and the observations of Barwick CJ in Brown v Rezitis at 163-164. 43 In Regan & Anor v Redeemer Baptist School Limited & Anor, I stated at [26]: As long ago as 1970, the Chief Justice of the High Court of Australia, Sir Garfield Barwick , in considering s 88F of the Industrial Arbitration Act 1940, a predecessor to s 106 of the Act, observed in Brown v Rezitis (1970) 127 CLR 157 at 164: ... It must be borne in mind that one of the purposes of the section is to deal with subterfuges, subterfuges which will take the worker out of the relationship of master and servant and therefore out of the operation of an industrial award designed, amongst other things, for the protection of workers in industry. There may be persons involved in the subterfuge who are not parties to the contract or arrangement but who are in reality the actors deriving the benefit from the making or the execution of the contract or arrangement. 44 Mr Phillips' submission that Brown v Rezitis is irrelevant to this matter ignores the interrelationship between first and second respondent, the applicants and the proposed third respondents. I reject this submission. 45 At this preliminary stage it is only necessary to make a determination whether members of the proposed third respondents are the "actors deriving the benefit from the making or the execution of the contract or arrangement", and whether their interrelationship with the first and second respondents as well as the applicants may amount to a form of subterfuge that enabled the proposed third respondents to avoid becoming a party to contracts or arrangements with the applicants. In my view, such a finding may ultimately be available. 46 The grounds for joinder were that the Reply filed by the first and second respondents stated that the work carried out by the applicants was for and on behalf of the proposed third respondents and that the relationship was between the proposed third respondents and the applicants. The first applicant received payments from the Church and listed the Church as her employer in her tax return. 47 Clearly the evidence indicates that the Elders had control of the first and second respondents as well as the Church through the corporate structure. The proposed members of the third respondents, except Mr R Bailey, were identified as the Directors of the first and second respondents. The Church is comprised of a number of Elders, a number of members of the Ministry Order and members of the Congregation of the Church. The Elders have control as directors over the first and second respondents in its arrangements or contracts with other parties such as the first and second applicants either as directors of the first and second respondents or as Elders of the Church. 48 Further it is to be recalled that the Church was registered as a business name, of which the corporate proprietor was the second respondent. This structure ensures that the Church is under the control and direction of the Elders. 49 The first and second respondents contended in Regan & Anor v Redeemer Baptist School Limited & Anor that the applicants had a relationship with the proposed third respondents and worked on its behalf. In these proceedings, the proposed third respondents as well as the first and second respondents have denied that the applicants were employed by the Church. 50 The first applicant, as a ministry order member, had to undertake any duties specified by the Elders of the Church. The stipend paid to the first applicant by the Church was at the discretion of the Elders. On becoming a member of the ministry order, property had to be renounced and had to be held by the Church in stewardship. 51 On its face, where the first and second respondents say they are not the employer, even though one may have thought this more likely as the Church is comprised of three components, it is difficult to determine who should be joined without appropriate documentation being before the court. The Elders have executive power and the majority of Elders are also directors of the first and second respondents. Although it is not entirely satisfactory, the position may not be clarified before the trial. In my view, the appropriate approach is to join sufficient respondents so that if the applicants are successful there are respondents who can satisfy any judgment and also be heard. There was no application to join the remaining components of the Church. 52 As I have already observed, the position may only become clear at the trial, including whether the third respondents may have recourse to the assets of the Church if compensatory orders were made in favour of the applicants. 53 In my view, there is a real or close connection of the requisite kind between the Elders, the first and second respondents and the applicants of the type contemplated in Brown v Rezitis. The evidence demonstrates that there is a definite intimacy between the various respondents, proposed or otherwise. The Elders exercised necessary control and direction over the first and second respondents through their directorship and membership of these entities and therefore any contracts or arrangements entered into with the applicants. 54 A question which was not addressed by any of the counsel in the proceedings was whether Mr R Bailey had the necessary "close connection" to the first and second applicants and the respondents. 55 Although, on the evidence, Mr Bailey is not a director of either of the respondents, he, in some ways is more intimately connected to the first and second respondents than the other proposed respondents. He is an Elder of the Church as deposed by Mr G Phillips in his affidavit, and thereby possesses the powers of an Elder. More importantly, Mr Bailey deposed in his affidavit dated 30 June 2005 that he had the authority of the first and second respondents to swear an affidavit verifying the reply to the summons for relief on their behalf. Further, it is deposed by Mr G Phillips that Mr Bailey had informed him of the different classes which comprise the church. 56 Accordingly, I find for the purposes of joinder that Mr R Bailey has the necessary "close connection" in accordance with the principles set out in Brown v Rezitis sufficient to warrant being joined as a member of the proposed third respondents. 57 Another important issue to be determined is whether the joinder constitutes a representative action. 58 Senior counsel submitted that this was a representative action and referred me to Pt 7.4 of the Uniform Civil Procedure Rules 2005 and the decision of this court by in Rozier v Lutheran Aged Care. 59 In Rozier, the applicant initially filed a summons for relief under s 106 of the Act against Lutheran Aged Care, Lutheran Property Trust and the Bendigo Bank. The applicant filed a notice of motion to join a Mr Zids as a representative of the Lutheran Church of Australia (New South Wales District), an unincorporated association. Mr Zids was the treasurer and administrator of the New South Wales District. There were various classes of membership within the congregation of the Church. 60 Boland J found that Mr Zids could not be joined as there was no evidence which class of membership Mr Zids possessed and that members of the congregation did not constitute an identifiable class. It could not be demonstrated that he had the same community of interest as a ordinary member of the congregation. 61 The matter before me is distinguishable from the representative action filed in Rozier. It is clear from the evidence that the proposed third respondents are the Elders of the Church and that the Elders constitute an identifiable class within the wider body of the Church. 62 Part 7.4 of the Uniform Civil Procedure Rules applies by the virtue of r 89(5) of the Industrial Relations Commission Rules. It provides: 7.4 Representation of concurrent interests (1) This rule applies to any matter in which numerous persons have the same interest or same liability in any proceedings. (2) Unless the court orders otherwise, the proceedings may be commenced and carried on by or against any one or more persons as representing any one or more of them. (3) At any stage of the proceedings, the plaintiff may apply to the court for an order appointing one or more of the defendants or one or more of the other persons to represent any one or more of them. (4) If a person who is not a party to the proceedings is appointed as referred to in subrule (3), that person must be joined as a party under rule 6.24. (5) This rule does not apply to proceedings concerning: (a) the administration of a deceased person's estate, or (b) property the subject of a trust. 63 Ms Brus submitted that the joinder was not a representative action. The notice of motion seeks to join all the Elders of the Church. The applicants do not seek to name only one Elder as the proposed respondent and sole representative which was the case in Rozier. Moreover, the class of Elders correspond, in name and number, to the proposed third respondents. In my view, there is no need to apply Pt 7.4 of the Uniform Civil Procedure Rules, as this is not a representative action. 64 Finally, I observe this determination is in respect of the joinder of a respondent, and is not a decision on the substantive issues raised in the summons. In this respect I agree with the observations of Boland J in Rozier where his Honour stated at [52]: ...I note the judgment of Glynn J in Delaney v Fujian Pacific Pty Ltd (unreported, IRC 3246 of 1997, 26 February 1999) where her Honour was dealing with an application to join two additional respondents to a summons for relief under s 106. In the course of her judgment her Honour said: This judgment is not concerned with the final determination of any of the substantive issues. It relates solely to the application by the applicant to amend his original Summons. In my view, enough has been advanced to suggest that it would be appropriate for Dr Tan and Mr Ho to be joined as respondents. If after full hearing, the applicant is not able to substantiate his claims against one, or both of them, then an application as to costs can be made. 65 For these reasons I propose to exercise my discretion to join the proposed third respondents to these proceedings. Orders 66 The court makes the following orders: 1. Noel Cannon, Ian Cannon, Jonathan Cannon, Phillip Bailey, Russell Bailey and Maxwell Shaw operating the Redeemer Baptist Church (an unincorporated association) are joined as the third to eighth respondents to the proceedings in matter number IRC 1100 of 2005. 2. Costs are reserved. 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.