Keady, Kelly v Jenius Pty Ltd
[1997] FCA 602
•5 Jun 1997
NOT FOR DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) NI 1126 of 1997
)
GENERAL DIVISION )BETWEEN: KELLY KEADY
Applicant
AND: JENIUS PTY LIMITED Respondent
JUDICIAL
REGISTRAR: TOMLINSON JR
PLACE: SYDNEY
DATED: 5 JUNE 1997
REASONS FOR JUDGMENT
Delivered ex tempore
By application filed on 11 December 1996 Ms Kelly Keady sought reinstatement and compensation under the Workplace Relations Act. To that end form R28 filed 11 December 1996 showed she commenced employment on 17 April 1995 and that she ceased on 25 November 1996. The employer was noted as being Jenius Pty Ltd and Starwoman International trading as Love & Life Productions.
A Notice of Appearance dated 23 December 1996 was filed on behalf of Jenius Pty Ltd of Bay House, Suite 106, 2 Guilfoyle Avenue Double Bay and Starwoman International of 16th floor, 730 Nathan Road, Kowloon Hong Kong. The contact person was noted as Jenny Angel and Messrs McGlynn and Partners as the solicitors.
By Notice of Motion filed on 3 June 1997 the applicant sought:
To vacate the hearing date of 6 June 1997.
That the name of the Respondent be deleted and “Twin Star Productions Pty Ltd (ACN 064 564 978) and Jenius Pty Limited (ACN 065 007 249) trading as Love and Life Productions” be substituted.
That "Jenius II Pty limited (ACN 075 755 388)" be added as a party to the proceedings as the Second Respondent.
That a further hearing date be set.
That appropriate Orders for production of documents be made.
Such further Orders as deemed fit.
By letter dated 22 April 1997 the applicant’s solicitor Ms Movsas wrote to Twin Star Productions Pty Limited at 10 Crown Street Sydney stating that they were aware from business searches that the business name “Love & Life Productions” was the registered name operating in conjunction with Jenius Pty Ltd. The letter also advised that proceedings had commenced against Love & Life Productions namely Jenius Pty Limited and Athena Starwoman International in the belief that these were the entities that traded under the business name of “Love & Life Productions”. Twin Star Productions were also advised that at the forthcoming directions to be held on 30 April 1997 the applicant would seek an amendment to substitute or join Twin Star Productions Pty Limited to the proceedings.
In support of the Notice of Motion the affidavit of Ms Movsas provided that the respondent "Jenius Pty Ltd" and its associate "Twin Star Productions Pty Ltd" have despite requests failed to provide documentation necessary to the applicant’s conduct of the matter. Further, that Ms Movsas had become aware that another corporation, "Jenius II Pty Limted" was representing that it had the right to operate under the registered business name of “Love & Life Productions”.
Prior to the matter coming before the court to-day the parties unsuccessfully attempted mediation. To assist in that mediation by letter dated 28 April 1997 Ms Movsas sought any documents evidencing the business arrangements between "Jenius II Pty Limited" and "Jenius Pty Limited" and "Twin Star Productions". Particularly sought was any documentation purporting to give "Jenius II" the right to trade under the name “Love & Life Productions” and employ or engage persons on behalf of "Jenius Pty Limited" and "Twin Star Productions".
By letter dated 5 May 1997 Messrs McGlynns confirmed to Ms Movsas they acted for "Jenius Pty Limited" but that they did not act for "Jenius II Pty Limited" nor "Twin Star Productions Pty Limited". Copies of the 1994/5 and 1995/6 tax returns of the applicant were sought by the respondent. The last paragraph of the letter stated:
“Your client executed an operators agreement with our client and Starwoman International Limited. The business relationship between our client and Starwoman International Limited came to an end in November 1996 and the agreement with your client therefore ceased to operate. Your client has commenced her action against the parties to the agreement and seeks to rely on the agreement. As such, the remaining documents you have requested are irrelevant. If your client wishes to commence an action against "Jenius II Pty Limited, Twin Star Productions Pty Limited or Love & Life Productions", then please do so. If your client’s application is other than currently pleaded in her application please so advise.”
Ms Movsas has deposed that from searches conducted it is apparent that "Starwoman International Limited" had no involvement in “Love & Life Productions”. Further, that searches reveal that "Jenius Pty Limited" and "Jenius II Pty Limited" have a common set of directors and both operate from the same registered office. Both appear to be corporate vehicles for Jennie Godfrey.
The applicant has supplied the 1994/5 tax return, and by letter dated 28 May 1997 advised McGlynn & Partners that they would be moving to substitute "Twin Star Productions Pty Ltd" in place of "Starwoman International" and seeking to join "Jenius II".
At the hearing of the Motion Mr Moore on behalf of the applicant advised that in March of 1993 the business name Star Woman International was originally registered by 2 natural persons, Ms Jennie Godfrey and Athena Star Woman, and that Ms Godfrey continues to operate that business name. Annexure to the affidavit of Ms Movsas revealed:
"1. In an Application for Registration of a Business Name on 29 March 1993 Jennie Godfrey and Athena Star Woman registered the name of Love & Life Productions with the Department of Consumer Affairs.
2. In a Statement of Change in Persons lodged with the Department of Business & Consumer Affairs On 21 June 1993 under the Business Names Act Athena Star Woman ceased to be involved with Love & Life Productions and Ms Jennie Godfrey and Starstruck Publications were entitled to operate that business name.
3. By document dated 6 June 1996 headed Statement of Change in Certain Particulars lodged in the Office of the Corporate Affairs Commission concerning the business name Love & Life Productions it was noted that Jennie Godfrey and Jenius Pty Limited were the entities entitled to use that business name.
4. In a Statement of Change in Persons lodged with the Department of Consumer Affairs dated 7 April 1995 regarding Love & Life Productions it was noted that Jennie Godfrey and Starstruck Publications Pty Limited had ceased involvement and that Jenius Pty Limited (ACN 064 007 249) and Twin Star Productions Pty Limited (ACN 064 564 978) had become so entitled."
Mr Moore asserted that "Jenius II Pty Limited" purports now to have the right to trade under "Love & Life Productions". No documentation was provided to the court in that regard.
Order 42 of Rule 15 provides:
(1) “A person sued in a business name shall not enter an appearance except in the person’s own name.
(2) A person who enters an appearance in a proceeding in which he or she is sued in business name shall file and serve with the notice of appearance a statement of the names and places of residence of all the persons carrying on business under that business name on the date of commencement of the proceeding.”
Mr Moore argued the respondent had a responsibility to advise the applicant as to the correct identity of the employer, and the facts were that the applicant entered into an Operators Agreement with "Star Woman International" and "Jenius Pty Ltd" trading as "Love & Life Productions". It was argued that those entities should never have so contracted with the respondent as they were never entitled to trade as Love & Life Productions. In October 1996 a second Operators Agreement was forwarded to the applicant seemingly by "Jenius II Pty Limited" proposing certain variations. That Agreement was never executed.
In support of his application Mr Moore argued the applicant has advised Twin Star Productions of the proceedings, that company searches revealed Jennie Godfrey is a director of both "Jenius Pty Limited" and "Jenius II Pty Limited" and that "Star Woman" should be removed. Further, that the letter of 5 May 1997 from McGlynn & Partners does not say "Jenius Pty Limited" and "Star Woman International" purported to trade as "Love & Life Productions".
Mr Moore noted that the applicant’s employment came to an end on 25 November 1996 and the letter from McGlynn Partners states that “the business relationship came to an end in November 1996.” It is my conclusion that it has not been demonstrated that the applicant had any knowledge of those matters.
Additionally it was pointed out that McGlynn & Partners by letter dated 26 May 1997 in their last paragraph stated that the hearing would be prejudiced if the last 2 tax returns of the applicant were not provided. To-day the respondent had not received both returns and yet was ready to proceed. Mr Heath for the respondent argued that the one tax return that had been provided was sufficient. There has been no demonstrated reason as to why the earlier return would be sufficient alone to assist the respondent.
Reference was made to a letter dated 3 June 1997 from Messrs McGlynn to the applicant setting out certain matters. That letter was not tendered.
Mr Heath on behalf of the respondent contended that on 26 February 1997 the applicant’s solicitors wrote to the respondent’s solicitors advising they wished to amend the application and stated inter alia “there is no doubt that from 1 October 1996 to the date of termination that the applicant was an employee of Jenius II Pty Limited.” In essence, the respondent stated that on 14 January 1997 the applicant foreshadowed there would be an amended application and nothing was done. Further, that "Twin Star Productions" were mentioned on 22 April 1997 but that nothing was done about joining that entity. The respondent argued that if the matter was not to proceed the respondent would be seeking costs. Mr Heath argued the problem that exists is not of the making of "Jenius Pty Limited" - and that the applicant has always known that "Jenius Pty Limited" and "Jenius II Pty Limited" trade out of the same entity.
Mr Heath advised that if the applicant were to serve "Jenius II Pty Limited" he anticipated that he would receive instructions to act.
It is my conclusion that "Jenius Pty Limited" has not complied with the provisions of Order 42 rule 15, and that it should have so complied. Having considered the matter I agree with the submission of Mr Moore that it would have been helpful for the respondent to say much earlier than at the 11th hour: “We are not the employer.” Much would have been avoided if the respondent - noting the difficulties of the applicant from the correspondence provided to the court this morning - had complied with its obligation under the rules of court and done more than it has in fact done. It is that failure to my mind that is the primary reason this matter should not proceed to-morrow. Trial by ambush is not available to a party by litigation. Additionally it is noted that Mr Heath has indicated that it is likely that he would act for the common director.
Orders
Accordingly I grant the order sought in the notice of motion first that this matter as listed for hearing to-morrow be vacated.
Secondly, having heard both parties on the matter it is appropriate that the name of the respondent be deleted and that the respondent in these proceedings be noted as “Twin Star Productions Pty Limted (ACN 064 564 978) and Jenius Pty Limited (ACN 065 500 249) trading as Love & Life Productions”.
Thirdly, having heard Mr Heath on the matter I propose to order that "Jenius II Pty Limited" be joined as a party to proceedings.
Informal discovery is to take place between the parties within 14 days of to-day’s date.
In relation to the question of pleadings, I order the applicant to file and serve a statement relevant to the issues of law and fact upon which it is relied within 14 days of to-day’s date. The respondent is to file and serve replies thereto 14 days after receipt of the applicant’s documents.
The costs of today are reserved.
Leave granted to restore the matter at short notice.
I certify that this and the
preceding five (4) pages are
a true copy of the Reasons for
Judgment herein of
Judicial Registrar Tomlinson
Associate:
Counsel for the Applicant: R Moore
Solicitor for the Applicant: Selby Anderson
Counsel for the Respondent: M J Heath
Solicitor for the Applicant: McGlynn & Partners
Date: 2 June 1997
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