Transport Workers' Union of New South Wales v Toll Transport Pty Ltd & Anor

CATCHWORDS: Unfair contract - Owner/drivers - Application of r 151 of Industrial Relations Commission Rules - Principles in respect of the slip rule - Orders corrected to represent decision of Court - Interest - Costs - Rule 151 of Industrial Relations Commission Rules

Civil Procedure Act 2005 LEGISLATION CITED: Industrial Arbitration Act 1940 Industrial Relations Commission Rules 1996 Uniform Civil Procedure Rules 2005

Abboud v State of New South Wales (Department of School Education) (No 2) (2000) 99 IR 299 Alamdo Holdings Pty Limited v Australian Window Furnishings (NSW) Pty Ltd [2008] NSWSC 7 Brown v Rezitis (1970) 127 CLR 157 Gould v Vaggelas (1985) 157 CLR 215 L Shaddock & Associates Pty Ltd v Parramatta City Council (No. 2) (1982) 151 CLR 590 Milson v Carter [1893] AC 638 CASES CITED: Newmont Yandal Operations Pty Limited v The J. Aron Corporation & The Goldman Sachs Group, Inc & 3 Ors [2007] NSWCA 195 Oshlack v Richmond River Council (1998) 193 CLR 72 Sinadinos v EDI Rail Pty Limited [2008] NSWIRComm 252 Sinadinos v EDI Rail Pty Limited (No 2) [2008] NSWIRComm 50 Symes v Commonwealth (1987) 89 FLR 356 Transport Workers' Union of New South Wales v Toll Transport Pty Ltd & Anor [2009] NSWIRComm 42 WorkCover Authority of NSW (Inspector Mark Morganthal) v DHL Exel Supply Chain (Australia) Pty Ltd, McGill Holdings Pty Ltd and DTC Pty Ltd (No 2) [2008] NSWIRComm 49

HEARING DATES: 20 April 2009 Written Submissions: 4 May 2009

APPLICANT Mr AA Hatcher of counsel Solicitor: Mr M Doherty Maurice Blackburn Cashman Lawyers LEGAL REPRESENTATIVES: FIRST AND SECOND RESPONDENTS Mr A Moses SC with Mr Y Shariff of counsel Solicitor: Mr J Catanzariti Clayton Utz Lawyers

TRANSPORT WORKERS' UNION OF NEW SOUTH WALES v TOLL TRANSPORT PTY LIMITED & ANOR (NO 2)

Application under s 106 of the Industrial Relations Act 1996

1 On 31 March 2009, judgment was given in Transport Workers' Union of New South Wales v Toll Transport Pty Ltd & Anor [2009] NSWIRComm 42, in which contracts between nine current or former owner/drivers who are, or were engaged by Toll Transport Pty Ltd and Toll Holdings Pty Ltd ("the respondents") were found to be unfair. In light of this finding, the respondents requested that the issues of interest and costs be dealt with separately. A further issue was raised by the respondents concerning the interpretation of the orders made on 31 March 2009. Application for interest 2 The applicant submitted that the more usual approach which is consistent with the Full Bench judgment in Abboud v State of New South Wales (Department of School Education) (No 2) (2000) 99 IR 299 (Wright J and Walton VP at [25]; Schmidt J at [44] - [48] is that the applicant should be entitled to interest calculated from the date of the filing of the application. 3 The respondents submitted that there was no reason to depart from what it described as the ordinary rule that interest should be awarded only from the date of judgment, also relying on Abboud. 4 It should be observed that the Full Bench decision in Abboud does not stand for this proposition. 5 In Abboud, Schmidt J, (Wright P and Walton VP agreeing in a separate judgment on the point) observed that in respect of a claim for interest there were three possibilities having in mind the nature of the claim advanced and the nature of the relief granted. They were an order that interest be calculated as from the date of the termination of the contract. Secondly, the date upon which the s 106 claim was brought and thirdly, that interest be calculated from the date of the judgment. After considering firstly judgments that discussed the role of an interest component in monetary orders made under s 88F of the Industrial Arbitration Act 1940, a predecessor to s 106, and secondly the approach of the High Court in Brown v Rezitis (1970) 127 CLR 157 to the concept of restitution which monetary orders under s 106 effect, her Honour concluded that the awarding of an interest component was a matter of discretion to be exercised in the particular circumstances of the case in order to discharge the statutory duty now arising under s 106(5) of the Act. This required the making of a monetary order in connection with the contract varied, "just in the circumstances of the case", (at [47]). Her Honour concluded that interest should be calculated from the date of the filing of the application until the date of judgment. 6 In arriving at the quantum of the compensation to be paid to the owner/drivers, I stated at [112]: ... In reaching this conclusion that the owner/drivers should be compensated by the amounts they paid for goodwill, I have been mindful that the value of money has changed since the 1990s. However, this determination seeks to take into account that the owner/drivers have received reasonable earnings over a significant period of time and some of the owner/drivers will continue to receive such earnings as long as they wish to remain with Toll...

7 The approach adopted was to offset one factor (the value of money) against the fact that the owner/drivers had received reasonable earnings over a significant period of time and some would continue to receive such earnings as long as they wished to remain with Toll. 8 Mr AA Hatcher of counsel, who appeared for the applicant, submitted that I should adopt a similar approach in respect of the payment of interest. This, it was submitted, would lead to an awarding of interest calculated at 50 per cent of the scale. I have been unable to locate any authority that endorses a proportional approach to the payment of interest. 9 I take the view that the proper approach "just in the circumstances of the case", is to make an order as to the payment of interest from the date of the application. Such interest should be calculated in accordance with the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005. Application for costs 10 The applicant sought costs on a party/party basis. 11 The respondents submitted first that the applicant should be entitled to no more than 80 per cent of its party/party costs because evidence led by the applicant in relation to the question of quantum or value of the goodwill was worthless; secondly, the respondents had objected to this evidence; thirdly, the tender bundle contained large amounts of material consisting of accountancy evidence which was largely worthless; fourthly, the respondents were unduly put to the task of reviewing a large amount of worthless evidence. 12 The ordinary rule is that costs follow the event. The rule may be displaced when circumstances are identified that should lead to a different result: Oshlack v Richmond River Council (1998) 193 CLR 72 at [63] - [70]. 13 In my view, there has been no conduct by the applicant which would disentitle it to the beneficial exercise of the discretion. The objection to the evidence in respect of the value of the goodwill was dealt with expeditiously during the proceedings and no court time was wasted in this respect. The tender bundle which contained tax returns for the owner/drivers was admitted without objection. The respondents cross-examined on this material and it was relied upon by the respondents in their submissions. Furthermore, based on the assessment of the parties, 10 days were reserved for the hearing of the application which concluded in five and a half days. 14 In further written submissions, the respondents drew to the Court's attention, the following decisions: Sinadinos v EDI Rail Pty Limited (No 2) [2008] NSWIRComm 50 at [7] - [10]; Sinadinos v EDI Rail Pty Limited [2008] NSWIRComm 252 at [7] and Alamdo Holdings Pty Limited v Australian Window Furnishings (NSW) Pty Ltd [2008] NSWSC 7 at [24] - [30]. Apart from contending that the Sinadinos' decisions were bindings on this Court, they provided no reason why these cases were not drawn to the Court's attention at the hearing in respect of costs on 20 April 2009. Upon my examination of the Sinadinos' decisions, they do not contain any binding statement of principle in relation to costs, except to confirm that an order for costs involves the exercise of discretionary power. 15 Alamdo Holdings Pty Ltd v Australian Window Furnishings (NSW) Pty Ltd was a decision of Barrett J dealing with the question of costs where the defendant contended out of a total claim, as pressed, of $924,110.10, the plaintiff eventually abandoned or lost its claim, to the extent of $600,733.01. The defendant's principal submission was that there should be no order as to costs. His Honour, after considering the relevant provisions of the Uniform Civil Procedure Rules, reviewed judgments of the Court of Appeal which set out the principles to be applied when the discretion to make "some other order" had been considered ([24] - [29]). At [30] Barrett J observed: The real guiding principle, it seems to me, is that stated by Gummow , French and Hill JJ in Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261:

"Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion for the trial judge. Mathematical precision is illusory and the exercise of the discretion will often depend upon matters of impression and evaluation." His Honour ordered that the defendant pay 50 per cent of the plaintiff's costs. 16 Alamdo Holdings Pty Ltd, in my view, is distinguishable from these proceedings. Here, the applicant proceeded on a single cause of action, in relation to which it was successful with respect to those owner/drivers working for the respondents. The applicant proposed a primary remedy (which, subject to the respondents' policy in respect of goodwill may not have involved any order for the payment of monetary compensation by the respondents), which the Court rejected. However, the applicant succeeded on its proposed alternative remedy for the remaining owner/drivers, which was monetary compensation. The respondent ultimately failed, not only in respect of its contentions as to jurisdiction and liability, but also in its contention that no remedy should be ordered. 17 The applicant is entitled to its costs on a party/party basis, as agreed, or assessed. Orders of 31 March 2009 18 On 31 March 2009, the Court made the following orders: [122] The Court makes the following orders and declarations: 1. The contracts entered into between the owner/drivers and the respondents on or about 1996 are hereby void ab initio save as to the payments of any monies pursuant to the said contracts. 2. The contracts or arrangements between the owner/drivers or former owner/drivers listed below and Toll Transport Pty Ltd and Toll Holding Pty Limited whereby the owner/drivers performed work in the Transport Industry were unfair. The owner/drivers or former owner/drivers are Francis Whitten, Leonard Felice (t/as L & N Felice, Dominic Lamacchia (t/as D & E Lamacchia), James Novack (whose business was incorporated in 2002 as Transco Holdings Pty Ltd) R & B Marcinasko Pty Ltd, WL Kennett (t/as WL & LM Kennett), Nick Kouverianos (t/as N & N Kouverianos), Victor D'Angelo, Carlos Ferreira (t/as C & D Ferreira). 3. Toll Transport Pty Ltd and Toll Holdings Pty Ltd are to pay each of the owner/drivers as referred to order 2, the following amounts: Mr Victor De Angelo $45,000.00 Mr Wayne Kennett $42,000.00 Mr Bill Marcinasko $40,000.00 Mr Dominic Lamacchia $18,000.00 Mr Nick Kouverianos $56,500.00 Mr Carlos Ferreira $55,000.00 Mr James Novack $25,000.00 Mr Len Felice $67,000.00 Mr Francis Whitten $43,562.00 19 On 2 April 2009, I relisted this matter at the request of the respondents to consider a submission in respect of the interpretation of the orders made on 31 March 2009. During the hearing on 2 April 2009, the respondents suggested that a possible resolution of the matter raised in respect of the orders was that they be stayed pending hearing further submissions from the parties on 20 April 2009. In staying the orders, I indicated to the parties that my intention in respect of order 1 was that only those contracts entered into between the respondent and the owner/drivers in 1996 that had subsequently been terminated, were to be declared void ab initio. In order to make order 1 effective and cure the omission, the Court foreshadowed that the names of those owner/drivers whose contracts or arrangements had already been terminated, should be inserted in that order. The Court further indicated that its intention in respect of the owner/drivers who currently have contracts with the respondents was that their contracts should be varied to provide for the payments set out in order 3 of the orders. 20 The Court further expressed the view that subject to hearing from the parties, the orders were amenable to correction under s 151 of the Industrial Relations Commission Rules 1996 ("the Rules"). 21 During the proceedings on 20 April 2009, Mr Hatcher provided to the Court short minutes of order which reflected the views that I expressed on 2 April 2009 in respect of the orders. During the course of oral submissions, Mr A Moses SC, who appeared with Mr Y Shariff of counsel, for the respondents, informed the Court that, without making any concessions and without prejudice to their rights (including rights of appeal), the respondents could provide to the Court an alternate form of orders in the event that the Court was against the respondents' primary position that the Court could not and/or should not alter the orders it made on 31 March 2009. This was necessary, so it was submitted, because of the unsatisfactory nature of the applicant's form of draft orders which would have led the Court into error. I invited the respondents to provide a form of draft orders proposed by them. 22 The respondents draft orders led to a further submission from the applicant, contending that the respondents' draft orders must be taken to represent an admission that the orders contained at [123] of the judgment of 31 March 2009 were not consistent with the Court's intention and did not accurately express its meaning. This contention was strenuously rejected by the respondents because of the qualified basis that they provided draft orders to the Court. The respondents also sought the costs of having to file further submissions. 23 In light of the conclusion that I have reached in respect of the orders, it is not necessary to determine the argument between the parties arising from the provision by each of them of draft orders. I have made clear the basis upon which the draft orders were received by the Court. 24 Rule 151 of the Rules provides: 151 Minute of judgment or order (1) Where there is a mistake in an order or decision, arising from an accidental slip or omission, a tribunal, on application by any party or of its own motion, may at any time correct the mistake or error.

(2) A tribunal, on application by any party or of its own motion, may, at any time, for the purpose of carrying out its intention and to express accurately its meaning, correct any order or decision. (3) The power in this Rule is additional to the power in Rule 38.

25 Essentially, the respondents contended that an objective construction of the Court's reasons do not permit the proposed variation of the orders, as to do so would be to deny natural justice to the respondents: Vision Publishing v P K Lane Holdings (1998) 84 IR 227. 26 The applicant submitted that the proposed correction of the orders was within the power provided to the Court by r 151. Applicable principles 27 The slip rule may be invoked irrespective of whether the order has been drawn up, passed and entered: Milson v Carter [1893] AC 638 at 640; L Shaddock & Associates Pty Ltd v Parramatta City Council (No. 2) (1982) 151 CLR 590 at 594 - 595; Gould v Vaggelas (1985) 157 CLR 215. The application of the slip rule is not confined to giving effect to the intention of a judge at the time when the Court's order was made, or judgment. It extends to the intention which the Court would have had, but for the failure that caused the slip or omission; Symes v Commonwealth (1987) 89 FLR 356. 28 Rule 151(2) goes further than r 36.17 of the Uniform Civil Procedure Rules 2005 in that it permits the Court to direct its orders to carry out its intention where the orders have not been accurately expressed. This rule appears to incorporate the inherent power of the Supreme Court. In Newmont Yandal Operations Pty Limited v The J. Aron Corporation & The Goldman Sachs Group, Inc & 3 Ors [2007] NSWCA 195 Spigelman CJ (at [67] - [72]) dealt with, in general terms, the inherent power of a common law superior court to correct an omission in the Court orders. At [77] - [80] his Honour stated: [77] In the joint judgment of the High Court in DJL v The Central Authority (2000) 201 CLR 226 at [34], Ivanhoe was referred to as authority for the following proposition: "An order … might be made in the action for the correction of the records of the court to make certain that they truly represented what the court had pronounced or had intended to pronounce ." [Emphasis added]

[78] The other authority cited for that proposition was Ainsworth v Wilding [1896] 1 Ch 673 at 678, where Romer J referred to Mellow v Swire as authority for the proposition that: " … even where a judgment has been duly passed and entered it might still be altered by the Court if the Court saw that it did not truly represent the decision which the Court had pronounced or intended to pronounce."

[79] This inherent jurisdiction has been expressly affirmed in DJL. Accordingly, the Supreme Court has jurisdiction to correct a duly entered judgment where the orders do not truly represent what the Court had intended to pronounce. This principle has been applied on numerous occasions. (See e.g. Hogarth's Estate supra at 21.5 per Burbury CJ; Coppins v Helmers; Brambles Constructions Pty Ltd (Third Party) [1969] 2 NSWLR 279 at 281 per Herron CJ, Sugerman and Mason JJA; Gikas v Papanayiotou [1977] 2 NSWLR 944 at 953-984 per Needham J; Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 at 28F-G per Sheller JA; Re Future Life Enterprises Pty Ltd (1994) 33 NSWLR 559 at 562-563 per McLelland CJ in Eq.)

[80] The formulation approved recently in DJL , should be accepted as authoritative. That formulation, I note, is in quite different terms to the slip rule. There may be other aspects of the inherent jurisdiction which also overlap with the slip rule, but it is unnecessary to consider them. 29 In my view, the propositions pertaining to the inherent jurisdiction of the Supreme Court described by the Chief Justice are encapsulated by r 151(2). It follows that there is an express power arising from the statute and it is therefore unnecessary to consider the issue of whether there is an inherent power in this Court. 30 The question as to the Court's intention is to be viewed objectively: Newmont at [102]; WorkCover Authority of NSW (Inspector Mark Morganthal) v DHL Exel Supply Chain (Australia) Pty Ltd, McGill Holdings Pty Ltd and DTC Pty Ltd (No 2) [2008] NSWIRComm 49 at [85]. The Court's intention with respect to those owner/drivers who at the time of the judgment remained engaged by the respondents is to be found at [112] of the judgment. The Court contemplated that these owner/drivers would remain engaged by Toll, stating "this determination seeks to take into account that the owner/drivers have received reasonable earnings over a significant period of time and some of the owner/drivers will continue to receive such earnings as long as they wish to remain with Toll." This determination was reached after the consideration of a submission made by the respondents at [111], "that the Court ought to take into account the substantial earnings received by the owner/drivers over a long period and the fact that the existing owner/drivers are free to remain working for the first respondent, as long as they wished to do so, subject to their performance." 31 Clearly, it was not the intention of the Court to make orders that would be inconsistent with the proposition that the owner/drivers would continue to be engaged by Toll. The substance of the corrected orders is simply a matter of variation of the contracts of the owner/drivers who continue to be engaged by the respondents. Such order would require the payment of money with respect to goodwill. That issue was fully debated as a matter of substance during the proceedings and in my view, there is no basis for the respondents to contend that they have been denied natural justice. 32 There is a further matter that I should deal with in respect of the draft orders provided by the respondent. The draft orders included an order that "such payments are in full satisfaction of any claims to goodwill that the owner/drivers listed in order 3 have either now, or at any time (past or future)." Clearly, I am functus in respect of such an order. 33 For these reasons, pursuant to r 151(1) and (2) of the Rules, the Court corrects the orders made on 31 March 2009 to make certain that they represent the decision which the Court had pronounced or had intended to pronounce. ORDERS 34 The Court makes the following orders: 1. The contracts entered into between the former owner/drivers listed below and the respondents in or about 1996 are hereby declared void ab initio save as to the payment of any monies pursuant to the said contracts. The former owner/drivers are: · Francis Whitten; · Leonard Felice (t/as L & N Felice); · James Novack (whose business was incorporated in 2002 as Transco Holdings; · Nick Kouverianos (t/as N & N Kouverianos); and · Carols Ferreira (t/as C&D Ferriera). 2. The contracts entered into between the owner/drivers listed below and the respondents on or about 1996 are varied to require the payments to those owner/drivers set out in order 4 below: The owner/drivers are: · Dominic Lamacchia (t/as D & E Lamacchia); · R & B Marcinasko Pty Ltd; · W L Kennett (t/as WL & LM Kennett); · Victor D'Angelo. 3. The contracts or arrangements between the owner/drivers or former owner/drivers listed below and Toll Transport Pty Limited and Toll Holdings Pty Limited whereby the owner/drivers performed work in the Transport Industry were unfair. The owner/drivers or former owner/drivers are Francis Whitten, Leonard Felice (t/as L & N Felice), Dominic Lamacchia (t/as D & E Lamacchia), James Novak (whose business was incorporated in 2002 as Transco Holdings Pty Ltd), R & B Marcinasko Pty Ltd, WL Kennett (t/as WL & LM Kennett), Nick Kouverianos (t/as N & N Kouverianos), Victor D'Angelo, and Carlos Ferreira (t/as C & D Ferriera). 4. Toll Transport Pty Ltd and Toll Holdings Pty Ltd are to pay each of the owner/drivers as referred to in order 3 the following amounts: · Mr Victor De Angelo $45,000.00 · Mr Wayne Kennett $42,000.00 · Mr Bill Marcinasko $40,000.00 · Mr Dominic Lamacchia $18,000.00 · Mr Nick Kouverianos $56,500.00 · Mr Carlos Ferreira $55,000.00 · Mr James Novack $25,000.00 · Mr Len Felice $67,000.00 · Mr Francis Whitten $43,562.00 5. Toll Transport Pty Ltd and Toll Holdings Pty Ltd are to pay interest on the amounts specified in order 4 from the date of application at the rate under the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005 calculated up to the date of this Order.

6. Toll Transport Pty Ltd and Toll Holdings Pty Ltd are to pay the applicant's costs on a party/party basis, as agreed or assessed. This order shall include the proceedings which occurred after 31 March 2009. In respect of submissions filed after 23 April 2009, each party shall bear their own costs. 7. The stay of the orders made on 2 April 2009 is dissolved.

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