Stonham v Speaker of the Legislative Assembly of New South Wales

Stonham v Speaker of the Legislative Assembly of New South Wales - [2001] NSWIRComm 277 - NSWIRComm 1988 case summary — Zoe

[37]

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 ...

[47]

(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".

[63]

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.

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