Sutton v Be Australia WD Pty. Ltd (No 2) - [2015] NSWIC 9

Industrial Court

New South Wales

Medium Neutral Citation: Sutton v BE Australia WD Pty. Ltd (No 2) [2015] NSWIC 9
Hearing dates: 25 May 2015
Date of orders: 11 August 2015
Decision date: 11 August 2015
Before: Kite AJ
Decision:
The Court makes the following orders:

(1) Leave is granted to the applicant to file a Further Amended Summons in the form included as part of Annexure DAL15 to Exhibit 3.

(2) Philip James Davidson is joined as second respondent.
(3) The respondents are to pay the applicant’s costs of the motion.
Catchwords: AMENDMENT – joinder of additional respondent - jurisdiction – beyond limitation period prescribed by Industrial Relations Act 1996 (NSW) s 108B – distinction between substantive and ancillary relief - discretion – delay – prejudice – costs thrown away – effective date of commencement against additional respondent – effect on costs orders – condition of granting amendment
Legislation Cited: Industrial Relations Act 1996 (NSW) ss 106, 108B, 109, 170
Uniform Civil Procedure Rules 2005 (NSW) r 6.28
Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175
Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd (1989) 17 NSWLR 734
BEA Systems Pty Ltd v Industrial Relations Commission New South Wales in Court Session [2005] NSWCA 227; 143 IR 111
BE Australia WD Pty Ltd (Subject to a Deed of Company Arrangement) v Sutton [2011] NSWCA 414
Burden v Walgett Shire Council [2006] NSWIRComm 169
Cochran v Sutton [2014] NSWCA 185
Commonwealth v State of Queensland [1920] HCA 79; 29 CLR 1
Container Terminals Australia v Xeras (1991) 23 NSWLR 214
Crowe v UCS Developments Pty Ltd [2003] NSWIRComm 234; 130 IR 266
Davies v Kyogle Shire Council [2007] NSWIRComm 9
Fairclough v Swan Brewery (1912) AC 565
GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710
Hagans v UnitedGlobalCom, Inc [2004] NSWIRComm 164
Ketteman v Hansel Properties Ltd. [1987] 1 AC 189
R v Gough; Ex parte Australasian Meat Industry Employees' Union [1965] HCA 52; 114 CLR 394
Toohey v Gunther [1928] HCA 19; 41 CLR 181
Unitedglobalcom, Inc v Industrial Relations Commission (NSW) in Court Session [2005] NSWCA 131; 142 IR 204
Visali v Southwell (1988) 12 NSWLR 502
Texts Cited: D K Singh, “What Cannot be Done Directly Cannot be Done Indirectly: Part I”, (1959) 32 ALJ 374
Category: Procedural and other rulings
Parties: Mary Sutton (Applicant)
BE Australia WD Pty Limited (formerly Bearing Point Australia Pty Ltd) (Respondent)
Representation:
Counsel
A Britt of counsel (Applicant)
P Ginters of counsel (Respondent and Philip James Davidson)
Solicitors
JH Law (Applicant)
Ashurst Australia Lawyers (Respondent and Philip James Davidson)

File Number(s): IRC 5584 of 2005

Interlocutory Judgment

By a summons for relief filed on 1 November 2005 the applicant, Mary Sutton, sought orders for relief under s 106 of the Industrial Relations Act 1996 (NSW) (IR Act). The named respondent was BearingPoint Australia Pty Ltd.
In the summons the applicant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Sutton v Be Australia WD Pty. Ltd (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NSWIC 9
Decision Date: 11 August 2015

CaseChat Overview and Summary

The parties involved in this case were Sutton, the applicant, and Be Australia WD Pty. Ltd, the first respondent. The applicant sought to join Philip James Davidson as the second respondent, a dispute that was heard in the Industrial Division of the Federal Circuit Court of Australia. The applicant was seeking to amend the summons to include the additional respondent, which the original respondents contested on the basis that the amendment was beyond the limitation period prescribed by section 108B of the Industrial Relations Act 1996 (NSW). They also argued that the amendment would prejudice their case and cause unnecessary delay.

The legal issues that the court had to decide were whether the amendment was permissible beyond the limitation period, and if so, under what conditions. The court had to distinguish between substantive and ancillary relief and consider the discretion to allow the amendment despite the delay and potential prejudice. The court also had to consider the effect of the amendment on the costs orders and the effective date of commencement against the additional respondent.

In determining the matter, the court found that while the amendment was beyond the limitation period, it was permissible in this case due to the distinction between substantive and ancillary relief. The court held that the amendment sought was ancillary to the substantive claim, and therefore, the limitation period did not apply. However, the court also found that the delay and potential prejudice needed to be considered, and as such, the amendment was granted on condition that the applicant bear the costs of the motion. The effective date of commencement against the additional respondent was set as the date of the amendment, and the respondents were ordered to pay the applicant's costs of the motion.

In summary, the court allowed the applicant to amend the summons to include the additional respondent, subject to certain conditions, including the bearing of costs and the setting of an effective date of commencement. The court exercised its discretion in favour of the applicant, recognising the distinction between substantive and ancillary relief, but also considering the delay and potential prejudice to the respondents.

Orders

Orders of the court

The Court makes the following orders:

(1) Leave is granted to the applicant to file a Further Amended Summons in the form included as part of Annexure DAL15 to Exhibit 3.

(2) Philip James Davidson is joined as second respondent.

(3) The respondents are to pay the applicant’s costs of the motion.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Sutton v BE Australia WD Pty. Ltd (No 2) [2015] NSWIC 9
Hearing dates:	25 May 2015
Date of orders:	11 August 2015
Decision date:	11 August 2015
Before:	Kite AJ
Decision:	The Court makes the following orders: (1) Leave is granted to the applicant to file a Further Amended Summons in the form included as part of Annexure DAL15 to Exhibit 3. (2) Philip James Davidson is joined as second respondent. (3) The respondents are to pay the applicant’s costs of the motion.
Catchwords:	AMENDMENT – joinder of additional respondent - jurisdiction – beyond limitation period prescribed by Industrial Relations Act 1996 (NSW) s 108B – distinction between substantive and ancillary relief - discretion – delay – prejudice – costs thrown away – effective date of commencement against additional respondent – effect on costs orders – condition of granting amendment
Legislation Cited:	Industrial Relations Act 1996 (NSW) ss 106, 108B, 109, 170 Uniform Civil Procedure Rules 2005 (NSW) r 6.28
Cases Cited:	Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175 Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd (1989) 17 NSWLR 734 BEA Systems Pty Ltd v Industrial Relations Commission New South Wales in Court Session [2005] NSWCA 227; 143 IR 111 BE Australia WD Pty Ltd (Subject to a Deed of Company Arrangement) v Sutton [2011] NSWCA 414 Burden v Walgett Shire Council [2006] NSWIRComm 169 Cochran v Sutton [2014] NSWCA 185 Commonwealth v State of Queensland [1920] HCA 79; 29 CLR 1 Container Terminals Australia v Xeras (1991) 23 NSWLR 214 Crowe v UCS Developments Pty Ltd [2003] NSWIRComm 234; 130 IR 266 Davies v Kyogle Shire Council [2007] NSWIRComm 9 Fairclough v Swan Brewery (1912) AC 565 GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710 Hagans v UnitedGlobalCom, Inc [2004] NSWIRComm 164 Ketteman v Hansel Properties Ltd. [1987] 1 AC 189 R v Gough; Ex parte Australasian Meat Industry Employees' Union [1965] HCA 52; 114 CLR 394 Toohey v Gunther [1928] HCA 19; 41 CLR 181 Unitedglobalcom, Inc v Industrial Relations Commission (NSW) in Court Session [2005] NSWCA 131; 142 IR 204 Visali v Southwell (1988) 12 NSWLR 502
Texts Cited:	D K Singh, “What Cannot be Done Directly Cannot be Done Indirectly: Part I”, (1959) 32 ALJ 374
Category:	Procedural and other rulings
Parties:	Mary Sutton (Applicant) BE Australia WD Pty Limited (formerly Bearing Point Australia Pty Ltd) (Respondent)
Representation:	Counsel A Britt of counsel (Applicant) P Ginters of counsel (Respondent and Philip James Davidson) Solicitors JH Law (Applicant) Ashurst Australia Lawyers (Respondent and Philip James Davidson)
File Number(s):	IRC 5584 of 2005