Kristine Fraser v Phillip Prendergast t/as Nashuatec West
[1994] IRCA 45
•3 Oct 1994
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA VI 845 of 1994
VICTORIA DISTRICT REGISTRY
B E T W E E N:
KRISTINE FRASER
Applicant
A N D
PHILLIP PRENDERGAST TRADING AS NASHUATEC WEST
Respondent
Reasons for judgment - delivered ex tempore
3 October 1994 PARKINSON JR
In this matter the applicant by notice of motion seeks leave to amend the application filed on 28 June 1994 by the substitution of the correctly named employer.
The applicant has this day sought leave to have heard a further application by motion on notice that leave be granted to amend the proceedings by the addition of a further claim in the accrued jurisdiction of the court for damages for breach of contract. The respondent opposed both applications.
It is not in contest between the parties in these proceedings that the applicant has incorrectly identified the name of her employer.
The respondent named in the application was one Phillip Prendergast trading as Nashuatec West. This court has been informed that the correct name of the applicant’s employer was Philrene (West) Pty. Ltd, and that Philrene (West) Pty. Ltd. traded as Nashuatec West.
I am satisfied that what has occurred is a mistake in the name of a party.
The employer has however been clearly enough identified by the application to enable a full and true appreciation by it of the nature of the proceedings brought by the applicant. Further, the proceedings have not advanced to such a stage as to result in any prejudice to the respondent employer by the amendment of the title of the proceedings.
Counsel for the respondent contends that as a result of the time limitations contained in S170EA(3) of the Act it is not open to the court to grant to the applicant leave to amend the title of the proceedings pursuant to Order 13 Rule 2 (3) of the Industrial Relations Court Rules.
His submission is that the effect of the application being made is that a new proceeding ought be filed by the applicant and leave sought for the filing of the proceeding out of time. It seems to me that this approach is the very mischief which Order 13 R.3 contemplates when it provides for amendment to claims to avoid multiplicity of proceedings.
It was submitted that the rules of court may not be relied upon for the purpose of avoiding the operation of a time limitation contained in a statute, and various authorities were cited in this regard including the recent decision of Phillip Morris v Bridge Shipping Pty. Ltd. and others (1994)2 VR 1. In that case leave was sought for joinder of an additional party to the proceedings. That application suffered from the difficulty that the time for bringing proceedings had expired and the plaintiff in that case was statute barred. The argument of the defendant was that the effect of leave being granted under the rules for joinder would be to deprive the defendant of its jurisdiction argument in relation to the statute of limitations. That case and all of the others cited by counsel for the respondent dealt with circumstances where there involved the addition of a new and unrelated party to the proceedings. In the present circumstances I am not satisfied that this is the case. The presently named respondent is the managing director of the employer. The amendment seeks to substitute the company name for the name of the managing director of that company. It would be an overly technical approach to the provisions of this Act to disregard the clear relationship between the presently named respondent and the amended respondent and simply treat them as two unrelated entities for the purpose of these proceedings. Further, that approach entirely disregards the fact that there is an express power in the court to extend time for filing the application beyond the 14 day period provided for in S170EA(3) of the act.
There is a further matter of relevance to this application. That is the effect of S170EA(5) of the Act in determining the identity of parties to an application made pursuant to S170EA(1). Pursuant to the latter section the applicant makes application to the court for a remedy in respect of the termination of his or her employment. S170EA(4) of the act provides that unless the court otherwise orders the parties to an application are the employer and the employee, and if the application is made under subsection (2) the trade union. This provision operates to identify that the employer is a party to the application, not that the person believed to be the employer or identified in the application as the employer.
Therefore, having regard to the matters outlined herein, in the present circumstances where the employer is not named correctly this court ought exercise its discretion and the powers under the rules of court to allow amendment of the application, and I so do.
The applicant’s notice of motion dated 7th September, 1994 is granted.
The applicant’s notice of motion dated 3rd October, 1994 is adjourned.
This court orders and directs as follows:
Pursuant to Order 13 r.3(2) of the rules of Court leave is granted
to the applicant to amend the title of the application by the
substitution of Philrene (West) Pty. Ltd. A.C.N. 054 721 434
in place of the presently named respondent Philip Prendergast
(trading as Nashuatec West).
That the applicant serve a copy of the amended application on the
respondent within 7 days.
That the applicant file and serve contentions of fact and law in
relation to its motion on notice dated 3rd October, 1994 upon the
respondent within 7 days.
That the application in the motion on notice dated 3rd October,
1994 be adjourned to be dealt with by the court at the substantive
hearing of the application pursuant to S170EA of the Act.
That this matter be listed for hearing on 9th November, 1994.
The respondent sought that the question of costs in relation to today’s application be adjourned to the trial. That application is granted.
I certify that this and the preceding four (4) pages
are a true copy of the reasons for judgment of
Judicial Registrar Parkinson.
Associate:
Dated: 3 October 1994
Solicitors for the applicant: McCluskys
Counsel appearing for the applicant: Mr. T. Knight
Solicitors for the respondent: Rigby Cooke
Counsel appearing for the respondent: Mr. R.J. Spicer
Date of hearing: 3 October 1994
Date of judgment: 3 October 1994
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