Stonham v Speaker of the Legislative Assembly of New South Wales

CATCHWORDS : Unfair Contract - Notice of motion to join additional respondent - Leave to move on amended summons - Proper approach - Discretion - Whether sufficient connection with subject-matter of proceedings - Joinder ordered.

Costs - Motion by applicant to join additional respondent and for leave to move on amended summons - Exercise of discretion - Motion opposed on reasonable basis - Particular circumstances of the case - Motion allowed - Indulgence to applicant - Applicant to pay respondents' costs. Industrial Relations Act 1996 s 105 s 106 s 170 s 181(1) Industrial Relations Act 1991 Pt 3 of Div 2 (repealed) LEGISLATION CITED : Industrial Arbitration Act 1940 s 88F (repealed) Industrial Relations Commission Rules 1996 r 83 Supreme Court Rules 1970 Pt 8 r 8(1) Bale v Crown in Right of the State of New South Wales [2000] NSWIRComm 248 Brimaud v Honeysett Instant Print Pty Ltd (unreported, McLelland J, SC88/3059, 19 September 1988) Brown v Rezitis (1970) 127 CLR 157 Byrnes v FRB Industries Pty Ltd [2001] NSWIRComm 250 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Holt v Wynter (2000) 49 NSWLR 128 Laguillo v Haden Engineering Pty Ltd [1978] 1 NSWLR 306 CASES CITED : Latoudis v Casey (1990) 170 CLR 534 Nagle (t/as WD & JL Nagle & Sons) v Tilburg [1993] 51 IR 8 Nominal Defendant v Manning (2000) 50 NSWLR 139 Reich v Client Server Professionals of Australia Pty Ltd (Administrator Appointed) (No 2) [2000] NSWIRComm 196 Stonham v Speaker of the Legislative Assembly of New South Wales (No 1) (1999) 90 IR 325 Stonham v Speaker fo the Legislative Assembly of New South Wales (No 2) (1999) 90 IR 334 Stonham v Speaker of the Legislative Assembly of New South Wales (No 3) (2000) 97 IR 325 Visalli v Southwell (1998) 12 NSWLR 502 HEARING DATES: 10/19/2001 DATE OF JUDGMENT: 11/05/2001

APPLICANT Mr P Matters (agent)

FIRST RESPONDENT Mr P Menzies QC and Ms T J Anderson of counsel Solicitor: Ms J Rogers and Ms M Kelly LEGAL REPRESENTATIVES: I V Knight, Crown Solicitor

SECOND RESPONDENT Mr R J Ellicott QC and Mr R J Weber SC Solicitor: Mr C W Love Colin W Love & Co

JUDGMENT: - 25 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: HUNGERFORD J Monday, 5 November 2001 Matter No IRC 649 of 1999 ANNE MARGARET STONHAM v THE SPEAKER OF THE LEGISLATIVE ASSEMBLY OF NEW SOUTH WALES Application under section 106 of the Industrial Relations Act 1996 re unfair contract. JUDGMENT ON MOTION [2001] NSWIRComm 277

1 This is an application by Anne Margaret Stonham by way of notice of motion filed in these proceedings on 19 September 2001 for orders relating to the joinder of a second respondent in the proceedings. Specifically, the orders sought were that "Gabrielle Harrison be joined as the second respondent to this matter" and that "leave be granted to the applicant to file an amended summons" (in terms of the draft filed on 19 September 2001 so as to give effect to any joinder). The substantive matter concerns a claim by Ms Stonham against the Speaker of the Legislative Assembly of New South Wales for relief under s 106 of the Industrial Relations Act 1996 in respect of an alleged unfair contract whereby she performed work in the electorate office of Ms Harrison who was the Member for Parramatta in the Legislative Assembly.

2 The motion arose from earlier proceedings in this matter on 10 September 2001 when Mr P Matters, as agent for Ms Stonham, made applications that Ms Harrison be joined as a party to the proceedings, that leave be granted to the applicant to serve further affidavits and, as a consequence, that the then hearing be adjourned. Each application was opposed by Mr P Menzies QC for the respondent Speaker. It is to be noted that the substantive hearing of Ms Stonham's s 106 claim commenced on 3 September 2001 and proceeded to hearing for four days of the 16 days allocated until the oral applications concerning the joinder of Ms Harrison were made on 10 September 2001.

3 The context in which the present motion falls to be considered may conveniently be seen by reference to extracts from the ruling made by me on 10 September 2001 as to the positions adopted by the parties, as follows : [3] Mr Matters said the applications had been made as a last resort. However, in light of the state of the affidavit evidence thus far, including earlier rulings made on the admissibility of certain parts of the applicant's primary affidavit, the applicant considered she would suffer prejudice if the matter went forward in its present form. Mr Matters frankly conceded there were serious problems with the affidavits.

[4] In opposing the applications, Mr Menzies emphasised that the respondent's house was in order and that he was ready to proceed. Broadly, Mr Menzies put three reasons against the applications, namely - · The question of Ms Harrison being joined as a party was settled on 22 July 1999 when the applicant's then solicitor indicated that a notice of motion to join Ms Harrison would not be proceeded with. It was now too late to revive it. · As to the claimed difficulties with the affidavits, the applicant and her representatives knew many months ago that the respondent considered the affidavit material filed was unsatisfactory and there was concern about the state of the affidavit evidence. It therefore defied belief, on senior counsel's submission, that the difficulties involved were not in the minds of the applicant and her advisors for quite a long period of time. · On 15 May 2001, the respondent filed and served detailed objections to the affidavit material filed by the applicant so that the applicant was well aware of the difficulties faced in the case to be presented by her.

[5] In general terms, Mr Menzies said the granting of the applications would cause considerable prejudice to the respondent, particularly having in mind the passage of time concerning the events and the uncertainty of the position if Ms Harrison were joined as a party. Mr Menzies said the respondent, if joinder were allowed, would face the very real question of what he should do having in mind his intention to call Ms Harrison as a witness in the case. Nevertheless, very fairly if I may say so, senior counsel conceded that the reality was the respondent would probably do nothing different.

[8] I have to say immediately that I have found this to be a most difficult decision for the Court to make having in mind the issues to be tried and the course of the proceedings thus far. On the one hand, the applicant should have every opportunity to put her case; I emphasise, however, that that is to be seen as every reasonable and proper opportunity. On the other hand, the respondent is entitled in meeting the case against him to the adoption of proper procedures and in a timely way consistent with the extent of the issues to be decided; he should not be asked to suffer irreparable prejudice. I consider the dilemma in answering the present difficulties may be resolved once it be accepted, as I do, that the task of the Court is to decide issues between the parties so as to be consistent with the proper administration of justice in all the circumstances of the case. How should that be balanced here? [9] Whatever one might say about the state of the affidavit material, my opinion is that there is a real and genuine dispute between the parties requiring determination by the Court. That the forensic procedures adopted by the applicant in various respects may be less than what is thought appropriate is not a matter, in my view, to reject the applications which, in effect, seek to remedy any defects and to better place the real issues before the Court for determination. I am conscious nevertheless that prejudice to both parties is to be avoided. At the end of the day, I consider the dispute should be resolved as between the relevant parties once all circumstances are before the Court. If that requires an adjournment to enable that, then so be it. I think it does.

5 I thereupon made the following rulings : 1. The applicant be granted leave to file and serve a notice of motion with a supporting affidavit for an order seeking to join Ms Gabrielle Harrison as a party.

2. The applicant be granted leave to file and serve further affidavit material in the proceedings.

3. The present proceedings be adjourned to a date to be fixed.

4. Costs be reserved, to be considered once the respondent has quantified his estimate of such costs thrown away. However, prima facie , I should indicate I am inclined to some order for costs in the respondent's favour, subject to hearing the parties in full on that question.

6 At the hearing of the motion on 19 October 2001, Mr Matters and Mr Menzies (with Ms T J Anderson of counsel) continued their appearances respectively for Ms Stonham and the Speaker; Mr R J Ellicott QC and Mr R J Weber SC appeared for Ms Harrison. The orders sought in the motion were opposed.

7 The proposed amended summons filed on 19 September 2001, to give effect to any joinder of Ms Harrison as a respondent party, named the Speaker as the first respondent and Ms Harrison as the second respondent. It sought an order pursuant to s 106 of the Industrial Relations Act "declaring void in whole or in part either from its commencement [or] from some other time the contracts of employment between the applicant and the respondents whereby the applicant performed work in the industry" on the general basis that such contracts "were, or became in their performance, unfair, harsh, unconscionable and contrary to the public interest". In the alternative, an order was sought "declaring void in ... whole or in part, or ... varying, either from their commencement or from some other time, those parts of the contracts of employment between the applicant and the respondents, or arrangements between the applicant and the respondents, whereby the respondents paid monies to the applicant upon the termination of the applicant's employment". Specific variations to the contracts were sought relating to overtime said to be worked by the applicant during her employment, the applicant's salary rate and provision for a reference upon termination of employment. In connection with the contracts to be so declared void or varied under s 106(1), the applicant sought a further order against the respondents under s 106(5) for the payment of money by them to the applicant "as may appear just in the circumstances", together with an order for interest and costs.

8 The grounds relied upon in the amended summons were in the following terms : 1. The first and second respondents were at all material times the employers of the applicant, although the applicant worked for, and was subject to the direction of the second respondent, who was the Member for Parramatta in the Legislative Assembly of New South Wales.

2. The factual matters relied on by the applicant are fully set out in her affidavit sworn 19 September 2001 in these proceedings and attached.

3. The contracts of employment between the applicant and the respondents were, or subsequently became in their performance unfair, harsh and unconscionable and contrary to the public interest because: (a) The applicant's wage was, in all the circumstances, insufficient;

(b) For the period from 12 September 1994 until 12 April 1995, the applicant was only paid for 2 days per week. The applicant worked full-time, at the direction of the second respondent, and as a result of the second respondent's statement that, if she did so, she would have a full-time job after the March 1995 election;

(c) The contracts did not provide for the payment of overtime, in a circumstance where the applicant was required to work a great deal of overtime, which was much more overtime than could reasonably have been expected at the time of the commencement of her employment, and much more overtime than she did, in fact, expect;

(d) The applicant was at all material times in a position of unequal and inferior bargaining power in respect of her dealings with the respondents;

(e) They failed to provide for the giving of fair reasonable and appropriate notice, or payment in lieu of notice, or termination payment, in all the circumstances;

(f) The second respondent subjected the applicant to a great deal of personal manipulation and distress. This made her job much more difficult and onerous than otherwise would have been the case;

(g) The terms of the contracts of employment were unfair and harsh to the applicant because she was required to perform additional work under oppressive, onerous and unlawful conditions as a consequence of and as caused by the following facts and circumstances: i. The second respondent neglected her duties as a local member of parliament, in particular, she rarely interviewed constituents and avoided coming into the electorate office when there were constituents who requested to see her present.

ii. The applicant was, as a result, required to perform a great deal of the second respondent's tasks as the local Member of Parliament. This resulted in the applicant having to assume responsibilities, carry out tasks, adopt a workload and be subjected to grossly unfair working conditions. This was particularly so in relation to the wage the applicant was receiving.

iii. The second respondent required the applicant to carry out additional tasks, some of which were related solely to her political matters, and some of which were personal services to the second respondent, all of which were not properly part of her employment. Those matters are referred to more fully in the applicant's affidavit of 19 September 2001. These matters rendered the contracts of employment unjust and unfair and contrary to the public interest, in so far as the applicant was required to perform those tasks. The contact was unjust and unfair, and contrary to the public interest in its performance and caused the applicant to be subjected to an onerous workload.

iv. The directions and behaviour of the second respondent towards the applicant and the second respondents involvement of the applicant in them as part of the way she had directed the applicant to perform her job, rendered the contracts of employment unjust and unfair, and contrary to the public interest. This caused the applicant a great deal of distress and added to her workload.

v. The applicant's working environment was insecure and unsafe. The first respondent failed to act to protect the applicant from the directions and behaviour of the second respondent. The first respondent failed to establish adequate systems of work to protect the applicant from the second respondent's directions and behaviour.

vi. The applicant became over burdened in her work because of the duties and activities she was required to carry out by the second respondent. (h) It was otherwise unfair, harsh and unconscionable or contrary to the public interest upon such grounds and for such reasons as this honourable Commission may find. (The applicant's affidavit sworn on 19 September 2001, as referred to in the above grounds, was filed and served on that date but it is not in evidence on the motion; I refer to it only to note the applicant's intention to rely upon it in making out the grounds for the claims under s 106.)

9 A further affidavit sworn by Ms Stonham on 2 October 2001 was relied upon to support her joinder as a respondent to the substantive proceedings. I think it unnecessary to refer in any detail to what Ms Stonham therein deposed. She was not cross-examined on the affidavit and it dealt, albeit in outline only, with the commencement of her employment with the Speaker on 12 September 1994 as an Electorate Officer Grade 1 in Ms Harrison's electorate office in Parramatta and subject to Ms Harrison's direction and control in the performance of the work, including as to hours worked and the nature and range of duties performed. I note that much of that affidavit was the subject of objection by both Mr Ellicott and Mr Menzies but, again for present purposes in considering this interlocutory application, I find it unnecessary to consider further those objections. Suffice it to say that the affidavit, together with that sworn by Ms Stonham on 19 September 2001, were directed to supporting the grounds contained in the amended summons, and as relevant to the question of Ms Harrison's joinder as a respondent party to the proceedings. Of course, whether those grounds are ultimately made out on evidence properly admissible in any substantive proceedings is another question and will, no doubt, depend upon an amount of other evidence. It seems to me only appropriate in considering the present motion for the joinder of Ms Harrison to attend to the allegations made by Ms Stonham as to whether they arguably fall within s 106 of the Industrial Relations Act. I have outlined earlier the claims made and the grounds in support thereof and, in my view, it is plain that they do so fall. As the Full Court of the former Industrial Court said in Nagle (t/as W D & J L Nagle & Sons) v Tilburg [1993] 51 IR 8 at pp 10-11 : As a general proposition, we think that all issues arising should be dealt with in the substantive proceedings unless the basis for a challenge, either on jurisdictional grounds, as here, or for lack of a reasonable cause of action, be clearly demonstrated ...

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.

10 Although that case was concerned with a jurisdictional challenge to a claim concerning an alleged unfair contract, the principle is, in my view, equally applicable in determining in an interlocutory way whether, as here, a claim may be brought. In considering the proper approach, the Full Court in Nagle v Tilburg adhered to the principle that a plaintiff ought not be denied access to the customary tribunal dealing with actions of the kind brought unless the lack of a cause of action was clearly demonstrated: see General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at pp 128-129 per Barwick CJ.

11 At the outset, and notwithstanding the arguments of senior counsel for the respondents to the contrary, I am not prepared on the question of joinder of Ms Harrison to determine the objections to Ms Stonham's affidavit in these interlocutory proceedings in such a manner as would effectively provide a substantive bar to the joinder of Ms Harrison without consideration of the substantive claims against her which, as I have said, are plainly within the usual nature of such claims brought under s 106 of the Industrial Relations Act.

12 Mr Matters referred in support of the joinder of Ms Harrison as a party to these present proceedings against the Speaker to the evidence to demonstrate the role played by Ms Harrison in the performance of the contract of employment between Ms Stonham and the Speaker; in any event, Mr Matters put that the evidence thus far showed a relevant contract of employment between Ms Stonham and Ms Harrison which the amended summons sought to have declared void or varied with the making of a consequential order for the payment of money by Ms Harrison to Ms Stonham. Mr Matters summarised his submissions thus :

The court has a wide discretion in terms of joining parties and your Honour needs no reminder of that and there have been in many decisions of this Court various classes of persons and entities which have been joined. I submit that the criteria that should apply based on those decisions and authorities is first of all is the party which is being sought to be joined sufficiently connected to the contract. And it is not required in those as part of that criteria that the party that it is being sought to be joined should be either an employer or even a party to the contract formally and there are examples given of directors, of people who have some connection with either the making of the contract or its performance.

I would point out there is a second part to this claim. Not only was Miss Harrison a critical player in the changed terms and conditions of this contract and therefore sufficiently connected on that criteria; but those changes in the terms and conditions of the contract were for her benefit entirely and she was not just the principal beneficiary, she was the only beneficiary.

The second part of that criteria is that in a theoretical sense anyway in these proceedings if Miss Harrison was not a party there could because of these proceedings or at the end of those proceedings theoretically be an application which would be considered by the Commission on the prima facie evidence that is before you today on this affidavit which could possibly lead to an order or an award against Miss Harrison. Not necessarily as a party to the contract but as a party that has caused or benefited from the contract in its performance.

If Gabrielle Harrison was a person who had sought no gain or benefit or exploitation - if I can put it that way - of the applicant and if Gabrielle Harrison was a peripheral bystander in the sense she may have been a supervisor on behalf of the Speaker, there may be some argument there is no sufficient culpability; I submit on the evidence Miss Harrison is clearly a critical part of the contract becoming unfair in its performance; was a person who gained significantly from the variation of that contract in its unfairness and finally in terms of public policy that those who do things which have an effect on an employee particularly in a grossly unfair way should be accountable through the mechanics of orders which the Commission can make in terms of apportionment of compensation. I would submit finally if there is a case for a joinder of a person in a proceeding then Miss Harrison certainly is one that should be joined under the circumstances.

13 In resisting the motion, Mr Ellicott stated the following propositions and developed them during argument - (1) The enterprise agreement, known as the "Parliamentary Electorate Officers Enterprise Agreement", made between the Speaker and the Public Service Association of New South Wales on 11 May 1994 under Pt 3 of Div 2 of the Industrial Relations Act 1991 and governing Ms Stonham's employment, together with the later industrial award, operated to make the present proceedings misconceived. Ms Harrison was sought to be joined to an abortive proceeding because there was no jurisdiction under s 106 to grant the relief claimed. That was so because the enterprise agreement and later award were "industrial instruments" which were excluded from the scope of s 106 by the definition of "contract" in s 105 of the Industrial Relations Act .

(2) This is not a case for the joinder of Ms Harrison because everything that has happened was within the reasonable contemplation of the employment under the enterprise agreement and later award. (3) The work performed by Ms Stonham was fully consistent with the task of an electorate officer. In the scheme of things, the Speaker was the agent of the Crown who employed Ms Stonham as an electorate officer and Ms Harrison was the Member of Parliament for whom the work was performed by Ms Stonham under the contract of employment with the Speaker: see Bale v Crown in Right of the State of New South Wales [2000] NSWIRComm 248. (4) Any argument, or claim, Ms Stonham might have is against the Speaker but not against Ms Harrison. (5) On 21 July 1999, during the preparatory stages of this matter for hearing, the then solicitor for Ms Stonham indicated she did not wish to proceed with her notice of motion for an order joining Ms Harrison as a respondent to the proceedings; in the result, an order was made, by consent, dismissing that motion with no order as to costs. That aspect was "immensely important" in considering the present application for joinder because it showed the "flavour of somebody playing around ... with the proceedings now wishes to change course because certain other things have happened in the meantime ... large parts of affidavits have been struck out and the events which led to your Honour making certain observations and giving certain directions in September of this year and which then led to this application". It was put that those aspects had "all the signs of adventurism, trying to weave ways in order to involve my client so that allegations which have been made and which she would say are outrageous and vexatious in many respects so they could be ventilated in this court". (6) An order joining Ms Harrison as a respondent should not be made unless the Court be satisfied that a contract within the meaning of s 105 existed; the evidence nowhere supports such a result. It has to be shown, having in mind the overall arrangement of government whereby the Speaker is the employer of electorate officers on behalf of the Crown, that there is something special between Ms Stonham and Ms Harrison to show some contractual arrangement which stands outside the Speaker's arrangement. (7) It would be a proper exercise of discretion to reject the joinder application having in mind the foregone opportunity to do so when the joinder of Ms Harrison was not proceeded with in July 1999 and more than two years later it is sought to be revived - this is a "compelling argument which should cause ... exercise of discretion against Ms Stonham".

14 Mr Menzies also opposed the joinder of Ms Harrison, primarily as a matter of "overriding principle" that "if an applicant comes to seek to do something they have done before, then discretion ought operate against them unless they can demonstrate some material change in circumstances": reference was made in that respect to Brimaud v Honeysett Instant Print Pty Ltd (unreported, McLelland J, SC 88/3059, 19 September 1988) and to Nominal Defendant v Manning (2000) 50 NSWLR 139. Senior counsel conceded that the position here against Ms Stonham may not be as strong as it was in those two cases because there the aspect sought to be revived had earlier been actively litigated whereas the earlier claim to join Ms Harrison was dismissed by consent without any argument on the merits. Even so, said Mr Menzies, the principle was the same in that there must be some basis for the change of position. In this case, no such basis had been shown by Mr Matters. Indeed, as Mr Ellicott had submitted, the real basis was "adventurism" on Ms Stonham's part.

15 There was no issue in the proceedings that the Court was not competent to make the orders sought in the motion. I agree. Section 170 of the Industrial Relations Act relevantly states : 170 Amendments and irregularities (1) The Commission may, in any proceedings before it, make any amendments to the proceedings that the Commission considers to be necessary in the interests of justice.

(2) Any such amendment may be made: (a) at any stage of the proceedings, and

(b) on such terms as the Commission thinks fit (including, if it can award costs in the proceedings, terms as to costs).

16 Rule 83 in Pt 13 - General Procedure of the Industrial Relations Commission Rules 1996 provides : General powers

83. A tribunal, in addition to its powers generally under the Act, may in relation to any proceedings before it: (a) ... (b) ... (c) direct parties to be joined or struck out.

17 Although not perhaps directly applicable, but of relevance by analogy having in mind the terms of r 89(5) of the Industrial Relations Commission Rules making applicable the practice, procedure or usage for the time being of the Supreme Court, Pt 8 r 8(1) of the Supreme Court Rules 1970 provides : Addition of parties

8 (1) Where a person who is not a party - (a) ought to have been joined as a party; or (b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon, the Court, on application by him or by any party or of its own motion, may order that he be added as a party and make orders for the further conduct of the proceedings.

18 With those above provisions in mind, I therefore approach this matter as an exercise of discretion whether Ms Harrison, in the circumstances, should be joined as a respondent to the substantive proceedings against the Speaker.

19 The first thing to be said about the motion for joinder is that it may be undoubted, in the circumstances pleaded in the proposed amended summons and supporting affidavit, that Ms Stonham even now could file a separate action against Ms Harrison under s 106 of the Industrial Relations Act; if she did, I apprehend, the issue which would then arise would be whether that action should be joined to the present proceedings against the Speaker. Of course, such a separate action beforehand may well be subject, as the content of Mr Ellicott's submissions suggested, to an application for summary dismissal on jurisdictional grounds or for lack of a cause of action. However, it seems to me, the only proper course is to take issues as and when they arise.

20 In the present state of the material at this interlocutory stage on the question of joinder, I am unable to elevate Mr Ellicott's jurisdictional submissions, as to the relief available under s 106 in light of the enterprise agreement and the later industrial award, as a bar to the motion on joinder succeeding. It is sufficient to leave those issues unless and until they arise. At this stage, I am far from satisfied that the arguments thus far put would, as General Steel Industries (112 CLR at p 129) laid down, meet the test that a ground for summary dismissal existed as being "clearly demonstrated"; or, put another way, it is far from made out at this interim stage that Ms Stonham's claim against Ms Harrison is "so obviously untenable that it cannot possibly succeed", "manifestly groundless", "so manifestly faulty that it does not admit of argument", "discloses a case which the Court is satisfied cannot succeed", "under no possibility can there be a good cause of action" or "be manifest that to allow [the pleadings] to stand would involve useless expense". In any event, I have to say not dissimilar arguments were earlier put unsuccessfully by the Speaker in these proceedings for summary dismissal of Ms Stonham's claim against him: see Stonham v Speaker of the Legislative Assembly of New South Wales (No 3) (2000) 97 IR 325. No one, least of all Ms Harrison here, chooses to be sued. In considering her joinder to the present proceedings, I think the proper approach is to enquire whether she has a necessary and sufficient connection with the subject-matter of the proceedings, including whether the history of them is against joinder.

21 In Reich v Client Server Professionals of Australia Pty Ltd (Administrator Appointed) (No 2) [2000] NSWIRComm 196, I had occasion to consider the question of the joinder of additional respondents and commented (in par [6]) : [6] It is not unusual in s 106 applications, where a contract is challenged, for persons not strictly parties to the contract to be made respondents so that they may be heard as to claims against them for the payment of money on the avoidance or variation of the subject contract once the grounds of unfairness had been made out. So much is clear from the very many occasions occurring in this Court on a regular basis, and as dealt with by the High Court in Brown v Rezitis (1970) 127 CLR 157; that is effectively the position here: see also Ace Business Brokers Pty Ltd v Phillips-Treby [2000] NSWIRComm 163 ((2000) 100 IR 420 at pp 428-432 in pars [22]-[28]).

22 In that case, it is instructive to note that joinder of the additional respondents occurred only after the substantive proceedings had concluded and an appeal therefrom allowed; a problem arose once the corporate entity was placed under administration and the recovery of any judgment was prejudiced. As to the connection of the additional respondents with what occurred so as to support their joinder, I commented in the decision (in par [7]) : [7] ... I do not think there is any doubt, on the evidence, that Mr Petrat and Mr Jones were the principals of the corporate entity; they were the persons who managed and controlled its affairs; they were the persons who were jointly concerned with offering the applicant employment and setting the terms and conditions of that employment; they were the persons who controlled the performance of the employment; and, significantly for present purposes they were the persons involved in the discussions with the applicant which ultimately led to these proceedings, namely, the conduct of the respondent in reducing the applicant's remuneration under his contract of employment and as to which he made objection. That ultimate reduction in salary was the central feature of the proceedings [at first instance] and of the proceedings before the Full Bench on appeal.

23 Although, of course, the facts were not identical with those here, I think the above extracts make the point of the sufficiency of a connection of a person with an impugned contract to justify joinder and even though that person may not be a party to the contract in question.

24 In the present case, the case for joinder put by Mr Matters depended essentially on a claim, as set out in the proposed amended summons, that a relevant contract (or arrangement) existed between Ms Stonham and Ms Harrison whereby work was performed in the electorate office at Parramatta. Whether that ultimately be made out remains to be determined in any substantive case but, in my view, at this interlocutory stage such a pleading, supported as it was by at least some evidentiary material, would make it appropriate for joinder to occur so that all relevant parties to the alleged contracts are before the Court to enable a determination of the evident dispute between them. In this regard, I repeat the observation made by me in the ruling given on 10 September 2001 on Mr Matter's oral application for the joinder of Ms Harrison as a party to the proceedings (in par [9]), namely, "whatever one might say about the state of the affidavit material, my opinion is that there is a real and genuine dispute between the parties requiring determination by the Court."

25 Visalli v Southwell (1988) 12 NSWLR 502 was a case in which the Court of Appeal upheld the power (as to s 88F of the Industrial Arbitration Act 1940 as the statutory predecessor to the present s 106) of the then Industrial Commission to order the joinder of a party in unfair contract proceedings. By reason of the similarity of the provisions as between s 88F there and s 106 of the present statute my view is that their Honours approach is directly applicable to the task confronting me. Under the rubric of "Principles governing exercise of power to order joinder", Kirby P (with whom McHugh JA agreed) said (12 NSWLR at p 507) : The jurisdiction of the Industrial Commission to make an order or award under s 88F of the Act does not depend, in the terms of that section, upon the presence before the Commission of particular parties. The Commission's jurisdiction attaches if it is shown that there is a "contract or arrangement or any condition or collateral arrangement relating thereto whereby a person performs work in any industry [...]". The power of the Commission to make an order or award for the payment of money is one expressed, by s88F(2), in wide terms. It is not limited, in the language of the subsection, to the parties before the Commission. All that is required is that the payment should be made "[...] in connection with any contract, arrangement, condition or collateral arrangement declared void [...]". That said, there are necessarily other restraints upon the making of orders against persons not parties. They include the requirement of natural justice that, before any such order should be made affecting or purporting to affect a person, such a person should have the opportunity to be heard: see Brown v Rezitis (1970) 127 CLR 157 at 164. They also include the consideration that to enforce the award effectively beyond the jurisdiction of New South Wales against a person who does not comply with it will require proof that that person has been lawfully made subject to the jurisdiction of the Commission.

26 In that same case, Priestley JA said (12 NSWLR at p 511) : 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 164-165.

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 contract, 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.

27 For completeness, I should add that the passage in Brown v Rezitis (1970) 127 CLR 157 at pp 164-165 referred to by Priestley JA in Visalli v Southwell included the following presently relevant view (127 CLR at pp 163-164) : In my opinion, even if the proceedings for the variation or avoidance of the contract or arrangement must be initiated by one of the parties to the contract or arrangement, the parties to the proceedings are not necessarily limited to those parties. ...

... In some cases, as I have said, there will be persons who are not the parties to the contract but who have in fact participated in its making ... Consequently, I am of opinion that the power to order the payment of money is not limited to the making of an order for the payment of money by one of the parties to the contract or arrangement varied or avoided.

28 Thus, in the present case, and even if Mr Matters' primary submission that Ms Harrison was a party to a relevant contract or arrangement failed, it would still be open to properly join her as a person who in fact participated in the making of the contract between Ms Stonham and the Speaker and who, in reality, was an actor in the performance or execution of the contract. In the recent decision of Byrnes v FRB Industries Pty Ltd [2001] NSWIRComm 250, Peterson J ordered the joinder of a person as an additional respondent to proceedings under s 106 of the Industrial Relations Act by following the approach stated above in Brown v Rezitis and Visalli v Southwell. His Honour did so on finding on the evidence that "there is a real potential that the applicant may be able to establish the need for relief against [the additional respondent], particularly if he succeeds on the effective control point, although that remains an issue yet to be heard and decided. Accordingly, there can be no basis for declining to join the additional respondent and not giving consequential leave to amend" (see par [22]). I see no relevant distinction on the facts of the case before me concerning Ms Harrison. On that basis, it would be appropriate to join her as a party.

29 However, I have been much troubled in these proceedings by the effect of Ms Stonham's earlier June 1999 motion for the joinder of Ms Harrison but which was, by consent, dismissed on 21 July 1999. This was the primary ground relied upon by Mr Menzies against joinder and was a most significant reason advanced by Mr Ellicott for the submission that the present motion was simply "adventurism" on Ms Stonham's part. Having considered the course of these proceedings, including the context in which the earlier motion was made and dismissed, I have to disagree.

30 The initiating summons for relief in this matter was filed on 16 February 1999 and, after being shortly thereafter provided with a copy of the summons and affidavit by the Speaker, Ms Harrison on 26 February 1999 caused a notice of motion to be filed for orders inter alia that Ms Stonham's affidavit in support of the summons not be read in the proceedings or otherwise made public until further order and that publication of the proceedings be suppressed; on the same day, Peterson J made orders in the terms sought. This earlier history of the matter, which need not be dealt with in any detail here, was the subject of two decisions by a Full Bench of the Court in Stonham v Speaker of the Legislative Assembly of New South Wales (No 1) (1999) 90 IR 325 and in Stonham v Speaker of the Legislative Assembly of New South Wales (No 2) (1999) 90 IR 334 given respectively on 15 July 1999 and 9 August 1999.

31 It seems from those decisions that the suppression (or perhaps more accurately non-publication) orders were lifted on 30 June 1999 but where they had been originally sought by Ms Harrison, as she deposed in an affidavit sworn on 1 June 1999, that "there are a number of allegations concerning me which are untrue and scandalous" (see 90 IR at p 335). Again, for present purposes, it is unnecessary to review the detail of those earlier matters; suffice it to say it is plain that the subject-matter of Ms Stonham's application under s 106 was of direct concern to Ms Harrison and, rightly or wrongly whatever the end result may be, showed a significant connection between her and the contract and its performance whereby Ms Stonham performed work in the Parramatta electorate office. Indeed, in that same affidavit of 1 June 1999 Ms Harrison referred to her public position and claimed the then allegations by Ms Stonham against her "would be likely to irreparably damage" her position. In those circumstances, it seems unsurprising that steps were taken by Ms Stonham to join Ms Harrison as a respondent party to the proceedings if only to enable her to be heard on the allegations made. However, and for reasons which are not disclosed, the motion to join Ms Harrison was discontinued on 21 July 1999 which was, of course, after the suppression orders were set aside on 30 June 1999. Nevertheless, allegations against Ms Harrison, to a not dissimilar effect as previously, continued to be made in later affidavits in the proceedings and as pleaded in the proposed amended summons filed on 19 September 2001.

32 Ms Harrison was heard, successfully, on her motion for a suppression order and, it seems to me, thereby established a real connection with this litigation. In my view, the approach as to joinder stated in Visalli v Southwell so that, as Priestley JA said, the power under s 106 may be "properly exercised", readily compels the addition of Ms Harrison as a respondent party to these proceedings. Any hesitation which I have had, as I earlier indicated, concerned the dismissal of Ms Stonham's earlier joinder application. That raises, as relied upon by both Mr Ellicott and Mr Menzies, consideration of the ordinary principle governing an interlocutory application as to a matter earlier dealt with. The principle, described as a rule of practice, was stated in the following way by McLelland J in Brimaud (at p 5): In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the Court on the hearing of the original application ... .

33 The principle so stated was preceded by the observation of McLelland J (at p4) that it was based on "the general rationale ... it would be conducive to great injustice and enormous waste of judicial time and resources if there were no limit on the power of a party to have any interlocutory application or order relitigated at will". Nevertheless, his Honour added the rider that "the approach of the Court to interlocutory applications is that the Court should do whatever the interests of justice require in the particular circumstances of the case" and that "not all kinds of interlocutory orders attract the same considerations".

34 The Court of Appeal in Manning referred with apparent approval to the decision in Brimaud. I respectfully accept it as a statement of general principle and note the observation of Mason P in Manning (50 NSWLR at p 142 in par [10]) - "A long line of authority attests to the practice of courts hearing interlocutory applications on matters of substance declining to allow a second contested run at the target where the only change of circumstances is an applicant coming forward with new evidence". However, as Heydon JA commented in Manning (50 NSWLR at p 148 in par [46]) - "These 'general rules' and 'ordinary rules of practice' are to be administered bearing in mind the 'over-riding principle governing the approach of the Court to the interlocutory applications', namely 'that the Court should do whatever the interests of justice require in the particular circumstances of the case'". A further qualification to the test as stated in Brimaud is that the formulation was by reference to the earlier proceedings being "a contested hearing"; in the case before me, of course, Ms Stonham's earlier June 1999 application for the joinder of Ms Harrison was dismissed by consent and without any arguments being put. Notwithstanding Mr Menzies' submission that the same principle should apply, I have difficulty in accepting that the present joinder application involves a relitigation of that issue. That makes more significant, in my view, what I regard as an over-riding principle in the exercise of discretion whether to join Ms Harrison to these proceedings as being the interests of justice in the particular circumstances of this case. It was accepted by Mr Ellicott and Mr Menzies, correctly in my view, that the determination of the earlier motion for joinder as an interlocutory proceeding did not create any res judicata or estoppel: see Brimaud (at p 4).

35 It is true that the hearing of the claims against the Speaker had been proceeding for four days before the joinder application was raised and where it was plain that certain forensic difficulties with the evidence confronted Mr Matters. In deciding on 10 September 2001 to grant an adjournment, so as to permit consideration of the present joinder motion, I balanced the competing considerations and concluded there was "a real and genuine dispute between the parties requiring determination" which "should be resolved as between the relevant parties once all circumstances are before the Court". I think that reasoning, having in mind the proper approach to the joinder of respondents in proceedings under s 106 as stated in the authorities, requires the exercise of discretion here in favour of the joinder of Ms Harrison as a party. I consider that the proceedings should be put onto a proper footing where the real dispute may be finally determined and with every opportunity to affected parties to put their cases. It necessarily follows, so as to give effect to this conclusion, that Ms Stonham should be granted leave to move on the further amended summons filed on 19 September 2001.

36 It only remains to deal with the questions of the costs of the motion. Mr Matters made no application even if the motion were successful and, if unsuccessful, he opposed costs being awarded against the applicant. Regardless of the outcome of the application, whether successful or unsuccessful, both Mr Ellicott and Mr Menzies submitted it was appropriate for costs to be ordered against the applicant in favour of their clients. Under s 181(1) of the Industrial Relations Act costs may be awarded in the discretion of the Court and the order may indicate by whom and to what extent such costs are payable.

37 The ordinary rule is that a successful party is entitled to costs, that is, costs follow the event: see Laguillo v Haden Engineering Pty Ltd [1978] 1 NSWLR 306 at p 308; and Latoudis v Casey (1990) 170 CLR 534 at pp 543, 566. In the present case, however, in succeeding on the motion Ms Stonham has been effectively allowed a not insignificant indulgence where the motion was brought very late in the proceedings and, indeed, after the hearing had been continuing for four days. It is no exaggeration to say that the addition of Ms Harrison as a party and the terms of the amended summons will materially affect the course of the future proceedings. Further, the opposition to the motion by Ms Harrison and the Speaker was on a perfectly proper basis and where, I emphasise, the earlier joinder motion was discontinued and about which I was much troubled in deciding the present question.

38 In Holt v Wynter (2000) 49 NSWLR 128, the Court of Appeal allowed an extension of time to commence proceedings for damages for personal injury suffered in a motor vehicle accident but, in doing so, ordered the successful plaintiff to pay the defendant's costs of the application. Sheller JA (with whom Meagher JA, Handley JA, and Brownie A-JA agreed) commented (49 NSWLR at pp 147-148 in par [121]) : In relation to costs ordinarily a successful applicant, who has allowed him or herself to get out of time, should pay the costs of the application unless the respondent's opposition was wholly unreasonable.

39 In the circumstances of this case, and where I have found the opposition to the motion was reasonable and with a significant indulgence granted to the applicant, I think the proper exercise of discretion would be to require Ms Stonham to pay the respondents' costs of the motion.

40 I determine the motion by making the following orders - 1. Gabrielle Harrison is joined as a party to these proceedings. 2. The title of the proceedings and all documents associated therewith are amended to show "The Speaker of the Legislative Assembly of New South Wales" as the first respondent and "Gabrielle Harrison" as the second respondent. 3. Leave is granted to the applicant, Anne Margaret Stonham, to move in the proceedings on the amended summons filed on her behalf on 19 September 2001. 4. The applicant is to serve on the second respondent copies of all process, affidavits and other documents earlier filed in these proceedings. 5. The applicant is to pay the first and second respondents' costs of the motion. _________________

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.