Transport Workers' Union of Australia, New South Wales Branch v Linfox Australia Ltd

LEGAL REPRESENTATIVES: RESPONDENT SOLICITORS Clayton Utz

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Monday 19 August 2002 Matter No. IRC 2309 of 2002 TRANSPORT WORKERS' UNION OF AUSTRALIA, NEW SOUTH WALES BRANCH v LINFOX AUSTRALIA LTD Application under s 106 of the Industrial Relations Act 1996

INTERLOCUTORY JUDGMENT ON PARTICULARS (NSWIRComm 195)

1 By summons the applicant Transport Workers Union of Australia New South Wales Branch seeks certain relief against the respondent Linfox Australia Ltd under s 106 of the Industrial Relations Act 1996 ("the Act"). The summons seeks orders that certain contracts between members of the applicant and the respondent are unfair within s 106 and that the contracts be varied. In essence, the subject matter of the proceedings concerns a dispute between the respondent and independent contractors about the payment of waiting time at the Kent Brewery operated by Carlton and United Breweries Ltd ("CUB").

2 The respondent sought certain particulars of the allegations contained within the summons. The applicant declined to provide those particulars. The respondent then sought an order requiring the applicant to provide those particulars with a further order seeking an extension of the time for filing the respondent's reply under rule 18A(4) of the Rules of this Court.

3 The grounds and reasons advocated by the respondent in the notice of motion included particularly an assertion that the summons had not specified in summary the matters of fact and law which form the basis of the application and did not contain sufficient information to allow this Court to carry out its duty to conciliate under s 109 of the Act.

4 Part of the controversy between the parties was settled. Those remaining for determination refer to paras 8, 9 and 10 of the summary of matters of fact and law contained within the summons. These paragraphs are in the following terms: 8. In 2000, the Contactors and the Applicant identified this as an anomaly, and complained about it to the Respondent. The view of the Contractors and the Applicant was that waiting time should be paid, for loads other than the first load, for periods commencing immediately after the return of each of the contactors to Kent, as had been specifically agreed. 9. The Respondent initially conceded that the position of the Contractors and the Applicant was correct. It commenced paying the Contractors waiting time from their return to Kent for loads other than the first load. 10. The Contractors, supported by the Applicant, made a claim for back-payment of waiting time to the commencement of the Contracts. An agreement was reached between the parties in 2001 that the Respondent would back-pay each of the Contractors amounts ranging from about $3,000.00 - $4,000.0-0. It was a term of this agreement that each of the Contractors would execute a deed of release in favour of the Respondent before receiving payment from the respondent. The Respondent subsequently forwarded deeds of release to each of the Contractors.

5 With regard to para 8 the respondent sought particulars about the names of the contractors who identified the anomaly, the name of the person on behalf of the respondent who identified the anomaly, details of the time when the anomaly was identified, the name of the person from the respondent's organisation to whom the complaint was made and the name of the person by whom the complaint was made.

6 The particulars sought with respect to paras 9 and 10 also went to identification of the persons concerned and the time at which certain events occurred.

7 The place that particulars play in the conduct of litigation has been summarised recently by Boland J in this Court in Bitekiteku & Ors v P & N D & Ors (2002) NSWIRComm 83. At para 8 his Honour reproduced the principles formulated with respect to particulars by Young CJ in Eq in Deemah Marble & Granite Pty Ltd v Sutherland (2001) NSWSC 829. I reproduce hereunder para 8 from the judgment of Boland J. "8 In Deemah Marble & Granite Pty Ltd v Sutherland [2001] NSWSC 829 Young CJ in Eq set out the basic principles with respect to particulars: (1) The basal function of particulars is to reduce costs by alerting the opponent to the scope of the real case being made so the opponent is not caught by surprise, nor does the opponent waste time and money in preparing to meet issues that the other party does not intend to raise: see eg Sims v Wran [1984] 1 NSWLR 317, 321 and Banque Commerciale SA (In Liquidation) v Akhil Holdings Limited (1990) 169 CLR 279 at 286. (2) Particulars are supplied of the material facts pleaded as P.E. Joske J said in Trade Practices Commission v Total Australia (1975) 24 FLR 413, 417: "While the defendant is entitled to know the case it is called upon to meet, it is not entitled to be told the evidence that will be called to prove the case. A defendant is entitled to ask for the material facts upon which the plaintiff will rely and he may make his request for the facts and matters relied on, which is taken to mean the same thing. When he asks for the facts and circumstances relied on he is going beyond the scope of particulars, and is probing for evidence." (3) However, every litigation lawyer knows it may be appropriate, in order to carry out the aim which I have stated in (1), it will almost be inevitable to disclose some of the evidence, and that if this happens, it is no answer that evidence must be disclosed by the giving of the particulars. See Sims v Wran at 321 and Wilson v Wilson (1952) 69 WN 358. (4) The party's obligation is only to supply the best particulars he or she can supply, provided that after discovery those particulars are supplemented, if possible; see Marshall v Inter-Oceanic Steam Yachting Co (1885) 1 TLR 394. (5) When one party has the means of knowing the real facts, ordinarily the opponent will not be ordered to supply particulars until after discovery: Millar v Harper (1888) 38 Ch D 110; TPC v CC (NSW) Pty Limited (1995) 131 ALR 581, 593. (6) The degree of particularity depends upon the nature of the case: American Flange and Manufacturing Co Inc v Rheem Australia Pty Limited [1963] NSWR 1121, 1126. (7) In equity, because other remedies may seem appropriate, and because evidence is filed by affidavit, the Court is less likely to order particulars and will not permit parties to slow down proceedings unjustifiably in their preparation for trial. This proposition is partly derived from the American Flange case and partly from the tactic used up to about 1980 by large firms acting for defendants, who created delays by constant requests for copious particulars, a worldwide phenomenon, as shown by the judgment of Wessels JA in the Appellate Division of the Supreme Court of South Africa in Moaki v Reckitt & Colman (Africa) Limited (1968) 3 SA 98, 102. (8) The order for particulars is discretionary, the object being to ensure the efficient process of the Court."

8 In determining whether particulars are properly sought and are required to be provided it is necessary to have regard to the context in which the request for particulars is made. This matter has been considered recently by Schmidt J in this Court in Fish & Anor v Solutions 6 Holdings Ltd & Ors (2002) NSWIRComm 93. The circumstances considered by her Honour are similar to those which are necessary to be considered in these proceedings. I set out hereunder an extract from her Honour's judgment being paras 27 to 34 inclusive, and I respectfully adopt her Honour's review of the contextual background to those proceedings and apply them to these proceedings: "27 Here, voluminous particulars were sought by the respondents, in order for it to put on its response to the summons. While an order for all of the particulars not provided by the applicants in answer to the original request was sought in the motion, it was not pressed at the hearing. That was certainly a proper approach, given that Rule 18A(4) requires that: (4) Within 21 days after the date of expiry of the time limited for the respondent's appearance the respondent must file and serve its reply. Such reply must be in Form 12B and must: (a) answer each of the matters raised in the application, and (b) specify in summary any additional matters of fact and law upon which the respondent will rely in opposition to the application, but not the evidence by which those facts are to be proved, and (c) contain sufficient information to allow the Commission to carry out its duty to conciliate under section 109 by a succinct summary.

28 This system introduced by Rule 18A for initiating s106 claims and preparing them for conciliation, involved a significant departure from that encompassed by Rule 18 which provides: 18. Proceedings under section 106 (Void contracts) and section 111 (Regulated contracts) (1) An application to the Commission to exercise the powers conferred on it by section 106 or by section 111 must be accompanied by affidavits, stating briefly but specifically the facts, matters and circumstances relied upon in support of the application. (3) Unless otherwise ordered by the Registrar, the application, together with a copy of the affidavits in support, must be served on the respondent. (4) Where, within the required period, an appearance has not been entered by a respondent, the applicant may proceed to have the matter determined in the absence of that respondent.

29 Under the Rule 18 procedures, the Court then issued directions to the parties to file their affidavit evidence, which also often involved discovery and inspection of documents, as a part of the preparation process. This was an expensive and time consuming process, in which parties incurred considerable costs and delay before any attempt was made to conduct the conciliation required by s109 of the Act. The new Rule 18A procedure was designed to alleviate some of this burden, so as to maximise the prospects which parties had to settle their differences, before significant legal fees had been incurred.

30 The applicants complained that the end result of the type of particulars here sought by the respondents, was to result in this streamlining and cost reduction being avoided. The result sought to be achieved was provision of information formerly provided in the applicant's affidavits and through the discovery process, at considerable cost to an applicant.

31 Given the voluminous nature of the particulars here sought, the application made in the motion and the limited further particulars actually pressed at the hearing, one must have some sympathy for that concern. The respondents, of course, asserted that this was not their aim, but rather to ensure that the allegations made by the applicants were properly understood, in order to identify from the outset, what truly was in issue between the parties. This would also facilitate the conciliation process. Those too are aims with which one must have sympathy.

32 It is obvious that there must be a balance between the two views. Indeed, that is what Rule 18A itself seeks to achieve, by the requirement that the matters of fact and law which form the basis of the claim must be specified in the summons by an applicant, but not the evidence - that having formerly been provided by affidavit sworn prior to the conciliation. Now these matters are to be provided in the summons by a 'succinct summary', so as to enable the Commission 'to carry out its duty to conciliate under s109 of the Act'. Likewise, a respondent is obliged to answer each matter raised, to specify additional matters of fact and law which it will rely upon in opposition to the claim, but not the evidence. Again, this is to be done by provision of a succinct summary, to enable the Commission 'to carry out its duty to conciliate under s109 of the Act'.

33 If the conciliation does not succeed, those succinct summaries of the facts will be fleshed out by the affidavits which will be filed by the parties prior to the hearing. In that process, the provisions of Rule 64 will also be available to the parties, if further particulars are required in relation to the matters contained in the pleadings or the affidavits.

34 Having this balance in mind, it must be accepted that at this point, the necessary particulars of a s106 claim, as required by Rule 57, are in fact those specified by Rule 18A. Thus it is that the details of alleged conversations and what is contained in documents are not required to be given in a summons, if the representations alleged have been sufficiently provided in summary form. Nor are copies of documents in which representations were made required to be provided. What is required is a statement of the matters of fact which form the basis of the claimed unfairness, sufficient to enable the Commission 'to carry out its duty to conciliate under s109 of the Act'."

9 The respondent relied in support of the notice of motion on an affidavit of John Doig, the National Manager, Linfox-Carlton and United Breweries Contracts of the respondent. In para 6 of his affidavit Mr Doig said: "I verily believe that the matters of fact provided in the Application do not contain sufficient information for the Respondent to adequately prepare its reply to the Application. Given that the issues which are the subject of the Application have been unresolved and continuing between the parties since at least October 1999 I believe that it is essential for the Commission to be appraised of all relevant information to provide the best possible prospect of the conciliation process bearing fruit."

10 Mr Doig was cross-examined. In the course of cross-examination he said that he had been the National Manager administering the CUB contract on behalf of Linfox for one year. He had been employed by the Linfox organisation for four and a half years and had previously been the Regional Manager for New South Wales. He was aware of a dispute concerning waiting times claimed by contractors working out of the Kent Brewery and had been involved in discussions and negotiations concerning this issue since July or August 2000. He had seen correspondence relating to this issue and a draft deed of release. Mr Doig also attended conciliation proceedings when the issue became the subject of a dispute notification before the Industrial Relations Commission of New South Wales.

11 Mr Doig was referred to the summons issued by the applicant. With respect to para 8, he confirmed that the contractors had made a claim in the terms set out. With respect to para 9 Mr Doig confirmed that the respondent commenced paying the contractors' waiting time as alleged and that he had knowledge of the mattes referred to, although he was not in attendance at each meeting. With respect to para 10 Mr Doig said that from his knowledge of discussions which were handled by someone other than him, what was set out in para 10 appeared to be correct.

12 Mr Hatcher, counsel for the applicant submitted that on the basis of Mr Doig's evidence the respondent could appropriately admit the truth of paras 8, 9 and 10 of the applicant's summons for the purpose of preparation of a reply. In the circumstances there was clearly no need for particulars.

13 Mr Connelly, solicitor who appeared for the respondent to support the request for particulars asserted that as a matter of principle the respondent was entitled to seek and obtain particulars in order to ensure that its reply was properly prepared. He asserted that rule 18A(7) contemplated that particulars might be required.

14 There can be no doubt that this Court has jurisdiction and power to order that particulars of the summons be furnished to enable a respondent to file a reply. However the exercise of discretion is conditioned by the circumstances in which an order seeking particulars is sought. I am mindful firstly of the intent of the "new procedure" under s 106 as reflected in rule 18A. It is to enable the identification of the issues between the parties in an expeditious and efficient manner so as to enable an early conciliation to be undertaken. Conciliation, which is mandatory by reason of s 109 of the Act is carried out by members of the Industrial Relations Commission of New South Wales, and, in most cases, judicial members. It is essential that all relevant issues be raised within the conciliation process. Accordingly, it may be appropriate to order particulars in circumstances where a respondent is unable to identify all of the issues or deal with them in an appropriate fashion. This might arise in a number of ways: for example, the summons may be inelegantly or poorly drafted, the respondent through its employees or agents may have no knowledge of the matters raised in the summons, all of the personnel in the respondent's employ dealing with the particular matter may have left and cannot conveniently be located, the respondent's documentation dealing with the matter may have been destroyed, etc. In all of these circumstances it may be appropriate to order that the applicant provide further and better particulars of an allegation contained in the summons.

15 However, the situation as revealed by the evidence in these interlocutory proceedings is quite different. Mr Doig is a senior executive of the respondent and has had some knowledge of the matters which are the subject of the issues raised by the summons. He is able from his own knowledge to deal conveniently with the three particular matters in issue. There is no evidence of any attempts made by the respondent to locate any other persons involved in dealings with the contractors and there is no evidence concerning any documentation held by the respondent with respect to the subject matter of the proceedings. Indeed, the respondent participated in a conciliation process before the Industrial Relations Commission of New South Wales and there have been negotiations and dealings with the contractors concerned over a substantial period of time. The respondent is a well-known and substantial provider of transportation services throughout New South Wales and beyond and presumably has an appropriate infrastructure to support its operations. There is no suggestion made on behalf of the respondent that it is unable to instruct its solicitors with respect to the reply from its own resources.

16 Having regard to the totality of the circumstances the motion seeking particulars filed by the respondent must be dismissed. As I regard the motion as being without merit there is no reason why the respondent should not pay the applicant's costs, as sought by the applicant.

ORDERS. 17 I make the following orders: 1. The motion is dismissed. 2. The respondent is to pay the applicant's costs of the motion as assessed in default of agreement. __________________________________

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