Eslick v Exben Pty Ltd and ors

THIRD RESPONDENT: Transfield Pty Limited

FOURTH RESPONDENT: PARTIES : Transfield Corporate Pty Limited

FIFTH RESPONDENT: Franco Belgiorno-Nettis

SIXTH RESPONDENT: Amina Belgiorno-Nettis

SEVENTH RESPONDENT: Guido Belgiorno-Nettis

EIGHTH RESPONDENT: Luca Belgiorno-Nettis

RESPONDENT ON MOTION: Marco Belgiorno-Zegna FILE NUMBER: IRC 1367 of 2000 CORAM: Boland J CATCHWORDS : Practice and Procedure - Application by respondents to join additional respondent in section 106 proceedings - Power of Commission in Court Session to join parties to proceedings - Application by respondent to join an additional respondent would not normally be granted - Particular considerations weighing in favour of granting application - Necessary and in the interests of justice to join additional respondent - Orders made - Costs reserved. Industrial Relations Act 1996 LEGISLATION CITED : Industrial Relations Commission Rules 1996 Supreme Court Rules 1970 Atid Navigation Co Ltd v Fairplay Towage and Shipping Co Ltd [1955] 1 All ER 698, 1 WLR 336 Brown v Rezitis (1970) 127 CLR 157 Delaney v Fujian Pacific Pty Ltd (unreported, Glynn J, IRC 3246 of 1997, 26 February 1999) Dollfus Mieg et Compagnie SA v Bank of England [1951] Ch 33 Foxe v Brown (1984) 58 ALR 542 CASES CITED : Harmer v Caltex Petroleum Pty Ltd [2000] NSWIRComm 100 Nagle v Tilburg (1993) 51 IR 8 Norris v Beazley (1877) 2 CPD 80 Visalli v Southwell (1988) 28 IR 234 Walker v Commonwealth Trading Bank of Australia (1985) 3 NSWLR 496 Wong v Cheng (unreported, Walton J, Vice President, IRC 1340 of 1998, 18 June 1999) HEARING DATES: 12/12/2000 DATE OF JUDGMENT: 01/05/2001

RESPONDENT/APPLICANTS ON MOTION: Mr D Inverarity of counsel Solicitor: Ms S Bower Cutler Hughes & Harris

APPLICANT/RESPONDENT ON MOTION: LEGAL REPRESENTATIVES: Ms E Pritchard, Solicitor Harmers Workplace Lawyers

RESPONDENT ON MOTION: Mr H Dixon of Senior Counsel Solicitor: Mr P Arthur Allen Allen & Hemsley

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: BOLAND J DATE: 5 January, 2001 Matter No IRC 1367 of 2000 Eslick v Exben Pty Limited and ors

Application under s 106 of the Industrial Relations Act 1996 INTERLOCUTORY JUDGMENT 1 On 30 March 2000, Fredrick Bidwell, Brian Eslick and Bronwyn Stockwell filed a summons for relief under s 106 of the Industrial Relations Act 1996. The respondents were named as Exben Pty Limited ("first respondent"), Transfield Holdings Pty Limited ("second respondent"), Transfield Pty Limited ("third respondent"), Transfield Corporate Pty Limited ("fourth respondent"), Franco Belgiorno-Nettis ("fifth respondent"), Amina Belgiorno-Nettis ("sixth respondent"), Guido Belgiorno-Nettis ("seventh respondent") and Luca Belgiorno-Nettis ("eighth respondent"). 2 An amended summons was filed on 31 May 2000. In the meantime, Ms Stockwell had filed a notice of discontinuance by consent with the respondents, leaving Messrs Bidwell and Eslick as the first and second applicants. On 24 July 2000, Mr Bidwell filed a notice of discontinuance by consent, leaving Mr Eslick as the sole applicant in the proceedings. 3 On 13 November 2000, Maidment J issued a certificate stating that conciliation in the matter had been unsuccessful. 4 On 22 November 2000, the first to eighth respondents filed a notice of motion seeking to have Marco Belgiorno-Zegna joined as a respondent to the substantive proceedings. The application was opposed by Mr H J Dixon SC, for Mr Belgiorno-Zegna and by Ms E G Pritchard, solicitor, for Mr Eslick. Background 5 Before dealing with the submissions on the notice of motion, it is necessary to set out the relevant background. 6 Transfield Pty Limited and Transfield Corporate Pty Limited, the third and fourth respondents, are wholly owned subsidiaries of Transfield Holdings Pty Limited, the second respondent. Transfield Holdings is a wholly owned subsidiary of Exben Pty Limited, the first respondent. The shareholding in Exben Pty Limited is held by the fifth, sixth, seventh and eighth respondents. Marco Belgiorno-Zegna also holds shares in Exben Pty Limited. 7 Mr Eslick had been employed as Chief Financial Officer of the Transfield Group of companies (that is, the second, third and fourth respondents) since August 1988 up to the date of the termination of his employment, a date in respect of which there is disagreement but at the latest seems to have been 8 March 2000. 8 A dispute arose between Mr Belgiorno-Zegna and the other members of the Belgiorno family (that is, the fifth to eighth respondents) concerning the management of the Transfield Group of companies. Consequently, Mr Belgiorno-Zegna decided to disassociate himself from the business and affairs of the other members of the Belgiorno family in the Transfield Group and to take a share of the Transfield Group assets on a basis to be agreed. 9 The agreed basis of the split was set out in a Memorandum of Understanding ("MOU") of 25 May 1999. In this respect, the amended summons for relief stated: 27. The MOU contemplated a division of assets of the Transfield Group between two newly created holding companies, yet to be incorporated. Exben I was to be owned as to 10% by Amina and as to 45% by each of Luca and Guido. Exben II was to be owned as to 10% by Amina and 90% by Marco. 28. It provided that subject to a number of conditions, assets identified in Schedule 2 to the MOU were to be transferred to a wholly owned subsidiary of Exben II, intended to be named "Transfield Investments" ("TI"). Under the MOU the date on which the transfer of these assets was to be effective ("Implementation Date") was to occur no later than 20 December 1999. 29. Clause 6.6 of the MOU provided that on the Implementation Date certain employees of the "Transfield Group" listed in Schedule 3 of the MOU would be "transferred" to Exben II subject to their concurrence. 10 Mr Eslick was one of the persons listed in Schedule 3 of the MOU who was to be transferred, with his concurrence, to Exben II on the Implementation Date. 11 Paragraphs 31,32, 33 and 34 of the amended summons stated that: 31. Clause 8.3 of the MOU provides that an "implementation team" be established to assist the parties to the MOU in implementing the various transactions which would ultimately result in the transfer of assets to Exben II or TI. 32. In accordance with this clause 8.3 of the MOU, sometime in May or June 1999 representations were made by Marco to the Applicants on behalf of the Transfield Group regarding their positions with the Transfield Group, with the intention that the Applicants would rely on them in determining whether to continue to work for the Transfield Group or ultimately work for Exben II or TI, once they had been established. 33. It was represented to the Applicants that: a) The Applicants would be employed by the new corporate entity, Exben II or TI, once either of those entities had been established and the Schedule 2 Assets had been transferred to it; b) In the interim the Applicants would work with Marco to manage the Schedule 2 Assets in anticipation of their transfer to Exben II/TI; c) This would involve changes in the Applicants' work duties and responsibilities. But would not result in a change to the employing entity until the Implementation Date. 34. From about mid June 1999, in reliance on those representations, and in similar fashion to the way the Salteri split had proceeded, the Applicants, as part of the implementation team as contemplated clause by (sic) 8.3, performed services associated with the planned implementation of the MOU, the management of the Schedule 2 Assets as contemplated by the MOU and worked towards the creation of the ExbenII/TI business. 12 The reference to "Applicants" in the amended summons, of course, is to be taken only as a reference to Mr Eslick, the other two applicants having filed notices of discontinuance. 13 In October 1999 it became apparent that the MOU referred to in the amended summons could not be implemented. 14 Paragraph 38 of the amended summons stated: 38. Clause 6.5 of the MOU provided that, in the event that, for whatever reason, the transactions in the MOU were not implemented by 20 December 1999, Marco would resume the position of Managing Director of Transfield as provided in the Corporate Governance Agreement (made in early 1998). The Applicants therefore had a reasonable expectation that, in the event the MOU was not implemented they would be reinstated in their former positions by Marco. 15 On 20 December 1999 Mr Eslick became aware that Guido Belgiorno-Nettis was contending that Mr Eslick had resigned his employment from the Transfield Group in mid-June 1999 and since that date the Transfield Group had been acting as an agent for Transfield Investments for the purpose of paying wages and superannuation contributions. The amended summons also stated that Guido Belgiorno-Nettis contended the agency arrangement ceased on 20 December 1999 and that Transfield would be pleased to re-employ Mr Eslick. 16 Paragraphs 41 and 42 of the amended summons stated: 41. On 21 December 1999, Guido telephoned Mr Eslick to invite both Mr Bidwell and Mr Eslick to rejoin the Transfield Group. Mr Eslick stated that as a mediation process ("Central Mediation") was imminent to resolve the Dispute, and as part of that process it was proposed that a "standstill agreement" would be agreed to preserve the status quo until the end of the Central Mediation or end of the litigation (if (sic) came to that), it was premature to consider such an option. 42. On 14 January 2000, each of the Applicants were advised by the Transfield Group that their employment had ceased on 24 May 1999 and, in case of Mr Bidwell, on 20 June 1999 and that from each of those dates they had accepted an offer of employment by Marco to take up employment with TI. The Applicants were further advised that their respective accrued annual leave and long service leave entitlements, calculated to 24 May and 20 June 1999 as appropriate, would be released to the Applicants or alternatively those accruals could be transferred to the Applicants' "new employer", TI. Particulars Each of the Applicants were provided with a letter from Lynne Longbottom, General Manager, Human Resources Transfield, dated 14 January 2000. A sample copy of this letter is served with the summons. 17 Paragraph 49 of the amended summons stated: 49. On 20 January 2000, Luca told Mr Bidwell and Mr Eslick that the Transfield Group considered that the Applicants had resigned from their employment with the Transfield Group effective in May/June 1999 and that from that date the Transfield Group had acted as "agent" of TI in relation to the payment of wages and the making of superannuation contributions. He also stated "Your (the Applicants) employment is of no interest to Transfield ". Messrs Bidwell and Eslick strenuously denied any such agency and that they had resigned their employment. 18 Mediation in February and March 2000 failed to resolve matters insofar as Mr Eslick was concerned. The Transfield Group paid Mr Eslick certain monies related to termination of his employment up to 8 March 2000. 19 Mr Eslick claimed that his contract with each and every respondent was unfair, harsh or unconscionable in failing to provide payment on termination of the following: · an amount for payment in lieu of notice; · an amount for severance; · an amount for annual leave and long service leave entitlements accrued and leave and service leave entitlements; · an amount for compensation for future economic loss; and · an amount for loss of future superannuation defined benefits. Submissions for the first to eighth respondents

20 Mr D S Inverarity of counsel appeared for the first to eighth respondents. Mr Inverarity's central contention was that Mr Belgiorno-Zegna was "integrally involved" in the circumstances that gave rise to Mr Eslick's claims and there was no basis for distinguishing Mr Belgiorno-Zegna from other respondents to the summons, for example, Amina and Franco Belgiorno-Nettis. Indeed, Mr Inverarity submitted, these two respondents had much less to do with Mr Eslick than Mr Belgiorno-Zegna, yet claims were being pursued against them and not Mr Belgiorno-Zegna. Further, that the amended summons alleged that Mr Eslick relied on certain representations made to him by Marco Belgiorno-Zegna which were not authorised by any of the first to eighth respondents. Despite this, Mr Eslick chose not to proceed directly against Mr Belgiorno-Zegna. If there was a relevant contract, the contract was between Mr Eslick and Mr Belgiorno-Zegna or, alternatively, Mr Belgiorno-Zegna was a party to the contract. Accordingly, liability rested with Mr Belgiorno-Zegna and he should be joined as a respondent. 21 The alleged representations by Mr Belgiorno-Zegna referred to by Mr Inverarity were those set out at pars 33 and 34 of the amended summons, namely that: 33. It was represented to the Applicant's that: a) The Applicants would be employed by the new corporate entity, Exben II or TI, once either of those entities had been established and the Schedule 2 Assets had been transferred to it; b) In the interim the Applicants would work with Marco to manage the Schedule 2 Assets in anticipation of their transfer to Exben II/TI; c) This would involve changes in the Applicants' work duties and responsibilities. But would not result in a change to the employing entity until the Implementation Date. 34. From about mid June 1999, in reliance on those representations, and in similar fashion to the way the Salteri split had proceeded, the Applicants, as part of the implementation team as contemplated clause by (sic) 8.3, performed services associated with the planned implementation of the MOU, the management of the Schedule 2 Assets as contemplated by the MOU and worked towards the creation of the ExbenII/TI business. 22 Mr Inverarity submitted that Mr Eslick relied on these representations and performed services consistent with those representations. Further, that during the period July to December 1999, Mr Eslick performed services on behalf of Mr Belgiorno-Zegna and reported directly to him in the business of Transfield Investments. On 21 December 1999 Mr Eslick received a telephone call from Guido Belgiorno-Nettis inviting him to rejoin the Transfield Group. Mr Eslick did not do so because, Mr Inverarity submitted, he was relying on representations made by Mr Belgiorno-Zegna and a reasonable expectation that, in any event, even if the MOU was not implemented he would be reinstated in his former position by Mr Belgiorno-Zegna in his capacity as Managing Director of "Transfield", a position Mr Belgiorno-Zegna would resume in accordance with the "Corporate Governance Agreement". 23 Mr Inverarity referred to Brown v Rezitis (1970) 127 CLR 157 as authority for the proposition that the Court may make orders under s 106 for the payment of money by any person other than a party to the contract or arrangement where that person "can reasonably be thought to have a real connection with the making, variation or avoidance of the contract or arrangement which has been varied or avoided" (per Barwick CJ at 165). In this connection Mr Inverarity also referred to Visalli v Southwell (1988) 28 IR 234 Harmer v Caltex Petroleum Pty Ltd [2000] NSWIRComm 100; Wong v Cheng (unreported, Walton J, Vice President, IRC 1340 of 1998, 18 June 1999). 24 Mr Inverarity also referred to a decision 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 Glynn J 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. 25 In relation to her Honour's judgment Mr Inverarity contended that: …. The authority from her Honour is good authority for the proposition that your Honour is not required to make a final determination of any substantive issues. You are simply to be satisfied it is appropriate they be joined, and in the event after proceedings have been determined and your Honour issues a decision that if it becomes apparent then that it was inappropriate to join Marco and we would say with respect that cannot be the case, a costs order can be made, if necessary. 26 As to whether there might be some injustice caused to Mr Belgiorno-Zegna by the application for joinder at this stage of proceedings (conciliation had been attempted but was unsuccessful), Mr Inverarity submitted that Mr Belgiorno-Zegna had been on notice since 13 June 2000 that the first to eighth respondents intended to seek to have him joined to the proceedings. Further, that Mr Belgiorno-Zegna had been invited to attend the conciliation proceedings but had declined to do so. Submissions for Mr Belgiorno-Zegna 27 Mr Dixon's submissions may be summarised as follows: i) that Mr Belgiorno-Zegna made no representations to Mr Eslick that were inconsistent with the MOU to which the fifth to eighth respondents were parties and, therefore, Mr Belgiorno-Zegna did not act without authority; ii) that Mr Eslick remained employed by Transfield Corporate Pty Ltd at all relevant times and was not employed by Mr Belgiorno-Zegna; iii) that Mr Eslick did not allege in his summons that Mr Belgiorno-Zegna was a party to any arrangement that prejudiced him or that conduct by Mr Belgiorno-Zegna rendered any contract with Mr Eslick unfair; iv) that Mr Eslick made no claim against Mr Belgiorno-Zegna; v) that the Court has jurisdiction to join a respondent at the behest of another respondent is not contested. However, it would be highly unusual for a respondent to be joined on the application of another respondent or respondents against the opposition of the applicant: see Atid Navigation Co Ltd v Fairplay Towage and Shipping Co Ltd [1955] 1 All ER 698; [1955] 1 WLR 336; Norris v Beazley (1877) 2 CPD 80 at 85; Dollfus Mieg et Compagnie SA v Bank of England [1951] Ch 33; Foxe v Brown (1984) 58 ALR 542 at 544; vi) that there was no specific relief claimed by the fifth to eighth respondents that they be entitled to a payment from Mr Belgiorno-Zegna if he were to be joined to the proceedings. The fact that the party sought to be joined is one against whom no relief is sought will ordinarily indicate that the joinder is not necessary: Walker v Commonwealth Trading Bank of Australia (1985) 3 NSWLR 496; vii) that the cases referred to by Mr Inverarity for the first to eighth respondents regarding the addition of parties were cases where the application to join was made by the applicant except in Wong v Cheng where Walton J, Vice President was considering a notice of motion by the second respondent to be removed as a party to the proceedings. Mr Dixon submitted that in Wong v Cheng his Honour's attention had not been drawn to the Supreme Court practice that a contested application to require a plaintiff to add a defendant would not normally be granted. Submissions for Mr Eslick 28 Ms Pritchard adopted the submissions of Mr Dixon in opposing the motion and made it clear that adding Mr Belgiorno-Zegna as a respondent to the proceedings was strongly opposed. Ms Pritchard said that in drafting the summons "we were mindful to exclude Marco." She submitted that Mr Belgiorno-Zegna was not inculpated in the events that resulted in the termination of Mr Eslick's employment. Ms Pritchard further submitted that to join Mr Belgiorno-Zegna to the proceedings would prolong the hearing and increase her client's costs. Consideration

29 It is apparent, and Mr Dixon did not contest this, that power lies with the Court to join a further respondent to the proceedings: see s 170 of Industrial Relations Act 1996; rule 83 (c) of the Industrial Relations Commission Rules 1996. This is so, it seems to me, even though the application to join is made by an existing respondent or respondents. Whether the application should be granted, however, is a matter of judicial discretion. 30 Ordinarily, an applicant seeking relief under s 106 of the Industrial Relations Act 1996 would be entitled to choose against whom it intends to proceed. As Mr Dixon submitted, if one were to follow Supreme Court practice, and the proposed defendant is not a person who "ought" to have been joined under subrule 8(1) of the Supreme Court Rules 1970, a contested application to require a plaintiff to add a defendant would not normally be granted. 31 The fact that the applicant, Mr Eslick, makes no claim against Mr Belgiorno-Zegna weighs heavily against joining Mr Belgiorno-Zegna as a respondent. There are, however, a number of other considerations. 32 Firstly, Mr Belgiorno-Zegna made certain representations to Mr Eslick regarding his continued employment. If those representations were made without authority as alleged by the first to eighth respondents and if Mr Eslick relied on those representations to his detriment under a contract or arrangement, Mr Belgiorno-Zegna may have been culpably involved. What the precise nature and extent of the representations were, what effect they had on Mr Eslick and whether or not they were made with authority are matters that can only be determined after all the evidence is in and the issues have been fully debated. 33 Secondly, even if the representations were made with authority and consistent with the terms of the MOU, Mr Belgiorno-Zegna, together with the other parties to the MOU, may nevertheless be jointly and severally liable if it were found that, as a consequence, a contract or arrangement had operated unfairly against Mr Eslick. 34 Thirdly, Mr Belgiorno-Zegna was a Director of the first, third and fourth respondents and Managing Director of the second respondent. Together with the fifth to eighth respondents, he was also a party to the MOU made on 25 May 1999. Mr Belgiorno-Zegna was a key player in the events that ultimately led to a situation where Mr Eslick found himself no longer in employment. On the face of it Mr Belgiorno-Zegna appears to have had a much closer connection to the arrangements made with Mr Eslick regarding his employment than, say, the fifth and sixth respondents. To this extent the absence of Mr Belgiorno-Zegna's name from the list of respondents is notable. Of course, whether Mr Belgiorno-Zegna's involvement - or for that matter the involvement of the first to eighth respondents - carries with it any liability will depend on whether that involvement amounted to unfair conduct within the meaning of s 106 of the Industrial Relations Act 1996. 35 Fourthly, in Nagle v Tilburg (1993) 51 IR 8 the Full Court of the former Industrial Court of New South Wales expressed the need for caution in determining a preliminary or threshold jurisdictional issue at an early stage of proceedings. The Court stated at 11-12:

We would draw from those authorities the proposition that whilst it is desirable for a case to be determined at an early stage it is only open to do so at the appropriate stage of the proceedings, that is, where the facts, either established by evidence or plainly agreed in terms, enable the Court to determine what the contract or arrangement is or, at least, the parameters of the contract or arrangement. In other words, it seems to us, unless the facts are sufficiently established to enable the Court to be satisfied it has the necessary material to reach a clear and final decision on the question then the appropriate stage has not been reached for such a determination to be made. 36 In the present proceedings the first to eighth respondents are not seeking to have a jurisdictional issue determined. What is being sought is the addition of another respondent, namely, Mr Belgiorno-Zegna. On what has been put before me in relation to this notice of motion I consider there are reasonable grounds for joining Mr Belgiorno-Zegna as a respondent, despite the applicant's opposition. If I were to determine at this stage of the proceedings that Mr Belgiorno-Zegna should not be joined as a respondent I would be, in effect, excluding from any further consideration his central role in the events leading to the termination of Mr Eslick's employment and denying the possibility that he may have been culpably associated with the making or operation of an unfair contract without hearing all of the evidence. On what has been put to me in these interlocutory proceedings I consider that I would be acting prematurely in declining to join Mr Belgiorno-Zegna as a respondent. 37 In Wong v Cheng, Walton J, Vice President stated: I consider that it will be necessary to have the second respondent before the court in order to fully and properly resolve and determine the issues raised in the summons for relief. The principle stated by Priestley JA in Visalli v Southwell and others (1988) 12 NSWLR 502 at 511 is applicable in this matter. Priestley JA stated as follows: "Section 88F authorises the Commission to make a variety of orders or awards in regard to contracts of a defined kind, if any one of various grounds is found to exist. There is no restriction in the section limiting the persons who may be the subject of orders made under it. It is settled that the operation of the section is not limited to persons who are in law the parties to the contract all or part of which is in question in an application under the section. Any person who can reasonably be thought to have a real connection with the contract is within the Commission's jurisdiction under the section. Persons having no conceivable connection with the contract are not: see Brown v Rezitis (1970) 127 CLR 157 at 64-165. For the Commission to see whether, in any application under s 88F, any person has a sufficient connection with the contract in question to be within the Commission's jurisdiction in regard to that contract, it needs to have that party before it when it deals with the application. This serves the necessary purposes (i) that the Commission may exercise jurisdiction properly, (ii) that the person who may be affected by any order made under the section will have had due opportunity to make any case that party wants to make in regard to the application and (iii) that the party may unarguably be bound by any decision of the Commission. It therefore seems a necessary incident of the Commission's power under s 88F that it be able, whenever it appears in the course of an application under the section that a person may have such a connection with the contract in question as to be within the jurisdiction created by the section, to bring that person before it. Only if such a power exists can the Commission properly exercise its s 88F function and determine whether persons do, or do not, have the necessary connection. The possibility that the Commission may find that a person joined as a party does not have the necessary connection to the particular contracts does not mean that there was no power under the section to compel the person's attendance at the hearing of the application; it is as much part of the Commission's jurisdiction to find an application not well-founded as it is to find it well-founded. The Commission's jurisdiction is to decide whether or not orders under the section should be made or not, and to be able to exercise that jurisdiction it must be able to have all parties before it to whom the application relates, whether or not the exercise of jurisdiction results in orders in favour of the applicant." 38 In the present proceedings I also consider that it will be necessary and in the interests of justice to have Mr Belgiorno-Zegna before the Court in order to fully and properly resolve and determine the issues raised in the summons for relief. 39 I order that Marco Belgiorno-Zegna shall be joined as a respondent to the proceedings in Matter No IRC 1367 of 2000. Costs are reserved. 40 This Matter is set down for further directions at 9.30 am on Thursday 1 February 2001.

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