TRISTAN WARE T/A GLOBAL LIMOUSINE SERVICES PTY LTD v TOLL TRANSPORT PTY LTD T/A TOLL PRIORITY

28 November 2016 Notice of Motion

1. On 28 November 2016, the appellant's solicitors filed a Notice of Motion ostensibly "by the Union" seeking an order that pursuant to Uniform Civil Procedure Rule (UCPR) r 7.8, the conduct of the proceedings be given to the Union on behalf of the appellant.
2. The Notice of Motion also sought a direction that the proceedings continue as though they had been commenced by the Union as applicant, and directions that the Union file any amended application for leave to appeal and appeal by 12 December 2016 and an Appeal Book by 28 January 2017 should stand, with the matter being relisted for further directions on 29 November 2016.
3. The Notice of Motion was accompanied by an affidavit from Mr Hector Ekes, Solicitor. Mr Ekes was not required for cross examination. Shortly stated Mr Ekes deposed the following: 1. he was first instructed by the appellant on 10 October 2016; 2. an appeal against the Commissioner's decision was filed on 11 October 2016. A similar application was filed by the Union on the same day in matter number 2016/302869; 3. on 4 November 2016, the Union application was discontinued pursuant to leave granted by the President at a directions hearing that day; and 4. given he was instructed by the appellant shortly prior to the expiry of the limitation period for filing of the appeal, the appellant's appeal was filed to preserve his position in respect of any appeal from the orders made by Commissioner Newall without sufficient time to obtain the advice of counsel.
4. Mr Ekes further deposed that having obtained the advice of counsel following discussions with the Union: 1. leave to appeal should be granted; 2. the questions raised by the appeal, the reasons why leave to appeal ought to be granted and the grounds of appeal ought to be amended to take account of issues similar to those raised in proceedings IRC 2016/302869; 3. there may be other issues capable of being raised by the Union, as the applicant for leave to appeal, of benefit to the appellant; 4. the Union is agreeable to allowing the appellant to have conduct of the appeal; and 5. the Union has authorised the appellant to maintain the current appeal in the name of the Union.
5. On 29 November 2016, the President directed the applicant or applicants to file contentions to clarify the moving party to the appeal together with any further evidence to be relied upon within 7 days. The respondent was given seven days thereafter to file contentions and any evidence in reply to the Notice of Motion including its position on costs.

20 December 2016 amended Notice of Motion

1. By a further Notice of Motion "by the Union" dated 20 December 2016, Gardner Ekes Lawyers sought an amended order pursuant to UCPR r 7.8 that: 1. The conduct of these proceedings be given to the Union. 2. In the alternative, pursuant to s.64 of the Civil Procedure Act 2005, the application for leave to appeal and appeal be amended to remove "Tristan Ware trading as Global Limousine Services Pty Ltd" as applicant and insert in lieu thereof "Transport Workers Union of New South Wales on behalf of Tristan Ware t/as Global Limousine Services Pty Ltd".
2. The appellant also sought to rely on an affidavit dated 19 December 2016 sworn by Mr Richard Olsen, the Union's State Secretary. Mr Olsen was not required for cross examination. Mr Olsen stated that he was authorised to make an affidavit on behalf of the Union. At paragraph 3, Mr Olsen said: The TWU have agreed to be substituted into the application for Leave to Appeal and Appeal proceeding No 2016/302899 and for their amendment naming "Transport Workers Union of NSW on behalf of Tristan Ware t/as Global Limousine Services Pty Ltd" as applicant.
3. Mr Olsen stated the consent of the Union was recorded in a deed between the Union and Mr Tristan Ware on terms including: 1. recognition that the appeal sought to be made is for Mr Ware's benefit, being from a judgement and orders made on 20 September 2016, dismissing an application for the reinstatement of a contract of carriage pursuant to s.314 of the Act; 2. authorising Gardner Ekes Lawyers to appear on behalf of the Union on its application and if successful, authorising that firm to act on its behalf in the application for leave to appeal and appeal; and 3. authorising Mr Ware to have the conduct of the application for leave to appeal and appeal on behalf of the Union.
4. The amended Notice of Motion sought a direction that the proceedings continue as though they had been commenced by the Union as applicant and directions that the Union file any amended application for leave to appeal and appeal by 19 December 2016, an Appeal Book by 19 December 2016 with the matter being relisted for further directions on 19 December 2016.
5. There is no evidence before the Commission that the appellant has sought or been granted leave to file the further Notice of Motion.

Appellant's Written Contentions

1. The Union is registered pursuant to s.223 of the Act.
2. The appellant ought to rely upon the affidavit of Mr Olsen to support the proposition that the Union: 1. was a body corporate, with perpetual succession and having a seal; 2. has the power to purchase, take on lease, hold, sell, lease, mortgage, exchange and otherwise own, possess and deal with any real or personal property; and 3. has the ability to sue and be sued in its registered name.
3. The Union was the authorised applicant pursuant to ss.311 and 314 to commence the proceedings below on behalf of the appellant in 2016/206161 and is the proper applicant in respect of this application for leave to appeal and appeal.
4. The Union referred to a number of authorities to support the contention that: whatever a person has power to do himself, he may do by means of an agent: the converse is also said to apply. The common law principle is drawn from old authority and has been applied in a variety of contexts, including: an authorisation to sign a memorandum of association of a company, the giving to tenants of a notice to quit and the signing of a notice of appeal.
5. Nothing in either ss.311, 314 or s.187(1)b of the Act prevents a person appropriately authorised by the Union to have the conduct of the proceedings on its behalf.
6. There is evidence before the Commission concerning the authorisation and the terms upon which that authorisation was provided by the Union to the appellant, including authorisation: 1. for the appellant's solicitors to also act for the Union on the application for the substitution of the Union as applicant in the proceedings; and 2. for the conduct of the application for leave to appeal and any appeal.
7. The appellant sought an order directing the amendment of the application as sought for leave to appeal and appeal or, an order for the substitution of the Union as applicant.
8. The appellant conceded that in the event the Commission decided against the amendment or substitution as sought, the Union was not prevented from commencing fresh proceedings given its discontinuance in 2016/00302869, subject to an application to extend time for leave to appeal and appeal. Any proceedings recommenced by the Union would be by the appellant "as its authorised agent for the reasons identified in these contentions".

Respondent's Written Contentions

1. The respondent contended the Notice of Motion should be dismissed on jurisdictional grounds.
2. The respondent sought to rely upon the affidavit of Mr Damian Sloan, General Manager Group Employee and Industrial Relations for Toll Holdings Limited filed on 24 January 2016. Mr Sloan was not required for cross examination. That affidavit set out the chronology of the appeal proceedings following the decision of Commissioner Newall and correspondence between the respondent and Gardner Ekes Lawyers concerning the matters raised in the contentions above opposing the Notice of Motion.
3. At paragraph 16 of his affidavit, Mr Sloan stated the President had issued Directions concerning the 28 November 2016 Notice of Motion on 29 November 2016. Those Directions were subsequently varied by the Commission. However, the appellant had not sought leave to file a further Notice of Motion.
4. The respondent contended the "purported" appellant did not fall within the various categories of parties or organisations set out under subsection 187(1) of the Act who may appeal a decision of the Commission. The appellant was not and could not have been a party to the proceedings at first instance. Nor is it an organisation registered pursuant to Chapter 6 of the Act.
5. The Union is not a party to the proceedings and leave has not been granted for it to appear as an intervener. Accordingly, the Union does not have capacity to bring the Motion(s) and they should be dismissed.
6. In the alternative, the respondent contended that the Motion should be dismissed for the following reasons: 1. the Union has failed to identify whether its rules permit the appellant to conduct proceedings on its behalf and if they do, identify which rules apply and adduce evidence that the steps necessary to authorise the State Secretary have been taken. 2. The deed of indemnity attached to Mr Olsen's affidavit does not contain terms that authorise the appellant to conduct the proceedings on behalf of the Union or Gardner Ekes Lawyers to appear for the Union and act on its behalf in the proceedings. 3. The order sought pursuant to UCPR r 7.8 in the Notice of Motion filed on 28 November 2016 does not have the effect of curing the jurisdictional impediment. The effect of the rule is to allow for a change of person to conduct representative proceedings. 4. UCPR r 7.8 does not confer on the Commission the power or discretion to substitute the Union for the appellant. Moreover, given the proceedings are currently brought by the appellant, an order that he has conduct of them is of no utility and does not remove the jurisdictional impediment. 5. The Notice of Motion filed on 20 December 2016 should be dismissed as it was filed without leave of the Commission in circumstances where the respondent has sought expediency in determining the proceedings. 6. An order to amend the proceedings should not be made in circumstances where: 1. the Union has not provided an explanation why it discontinued the application for all leave to appeal an appeal on 4 November 2016 "at which point it had been aware of these proceedings and the jurisdictional impediment of those proceedings": 2. the Union has not provided any plausible explanation for the delay in commencing the Motion(s) seeking to amend the proceedings; and 3. the effect of granting the orders sought would be to override the requirements to extend time to appeal required by s.189 of the Act.
7. The respondent sought an order for costs on the grounds that the appellant had been informed of its jurisdictional objections since 14 October 2016. The appellant should have discontinued the proceedings earlier. Further, or in the alternative, an order for costs in relation to the Motion(s) should be made as they are vexatious and/or brought without reasonable cause.

20 December 2016 amended Notice of Motion

1. In the course of proceedings, the respondent pressed that the amended Motion should fail on the grounds that it sought substitution of the Union for Mr Ware as appellant. The amended Motion was filed without leave of the Commission and is inconsistent with the directions of the President given on 29 November 2016 (and some subsequent proceedings before the then Chief Commissioner).
2. The respondent submitted leave should not be granted to allow the amended Motion to be moved and the Commission should proceed to determine the earlier 28 November Motion.
3. The Commission subsequently determined that the appellant should not be granted leave to file the amended Motion: COMMISSIONER: … given the requirement of the directions, I think I'm compelled not to grant leave. BAILEY: May it please. COMMISSIONER: And that is my decision. As unfortunate as it may be, but we have to maintain the sanctity and integrity of directions and the processes of this Commission and if we don't, well then, proceedings won't be on foot in a rational, orderly manner.
4. Accordingly, the Commission proceeded to hear submissions on the 28 November Motion.

Appellant

1. The appellant's case was that the objective of the Motion was "to regularise the proceedings so that the proper appellant is on foot" that being the Union.
2. The appellant relied on its written submissions to support the proposition that the Union is a proper applicant and should be the appellant in these proceedings. Should the Commission rule against the Motion, the appellant will be prejudiced to the extent that he has no rights to appeal the decision of Commissioner Newall.
3. The appellant submitted there was no impediment under s.311, 314 and 187(1)(b) of the Act that prevents a person appropriately authorised by the Union to have the conduct the proceedings of its behalf.
4. The evidence before the Commission is that the Union has given authorisation for the solicitors for the appellant to also act for the Union on the application for the substitution of the Union as applicant in the proceedings and conduct the application for leave to appeal and any subsequent appeal.
5. The effect of UCPR r 7.8 is to allow a change of person to conduct representative proceedings: Oasis Fund Management Pty Ltd v Royal Bank of Scotland NV [2010] NSWSC 584 at [66]. The scope of the rule is broad and comprehends the Commission has power under that rule "to give the conduct of proceedings to a party with an interest in those proceedings, as … would be the case here, the Union having the relevant interest". However, the appellant later acknowledged that the proceedings before the Commissioner were not representative proceedings.
6. The appellant contended the decision in Lemery Holdings Pty Limited v Reliance Financial Services (2008) 74 NSWLR 550 was authority for the proposition that UCPR r 7.8 empowers the Commission "to give the conduct of the whole or any part of the proceedings to any such person as it thinks fit". Reliance sought an order pursuant to UCPR r 7.8, giving it the conduct of all the third party proceedings.
7. Shortly stated, Reliance was the trustee of a discretionary trust called the Reliance Discretionary Trust that was in liquidation. Reliance had sought a number of declarations concerning proceedings on foot in relation to a number of loans made by the Reliance Discretionary Trust.
8. An issue for the Court in that case was whether a former trustee was entitled to retain the trust assets as security for its right of indemnity, notwithstanding its removal and replacement by a new trustee. Orders were ultimately made by Brereton J substituting the new trustee as the applicant plaintiff in those proceedings.
9. The appellant submitted that in the event the Motion was refused, the Union was not prevented from commencing fresh proceedings given its discontinuance in matter number 2016/302869. It would, however, be required to make an application for an extension of time for leave to appeal and appeal by way of affidavit explaining the delay. In such circumstances, any proceedings recommenced by the Union would be by the appellant, Mr Ware as its authorised agent.

Respondent

1. The respondent contended its position with respect to both Motions was well known to the appellant and was the subject of some detailed correspondence in late 2016 and earlier this year. The appellant's solicitors have been put on notice that the "appeal was brought without power".
2. The respondent submitted that the Union did not have standing to move the Motion. There had been no ruling by the Commission that the Union has standing as an intervener. Accordingly, the Motion should have been brought by Mr Ware to vary his own set of proceedings.
3. The respondent contended that UCPR r 7.8 "does not state that it has the power to substitute parties, it simply provides that the conduct of proceedings be able to be given to someone else". There are specific rules under the UCPR and ss.64 and 65 of the Civil Procedure Act 2005 which allow for the substitution of parties, particularly in circumstances where there has been a mistake as to the identification of a party.
4. The current proceedings before the Commission cannot be categorised as representative proceedings. They are not proceedings pressed by the Union on behalf of others. Rather, the proceedings are brought by the appellant for and on behalf of himself.
5. The respondent contended the decision of Biscoe AJ in Oasis did not support the proposition that r 7.8 was a source of power to join or substitute a party: 66 Rule 7.8 empowers the court "to give the conduct of the whole or any part of the proceedings to such person as it thinks fit". It appears that that person might be a non-party although it is difficult to imagine that the conduct of proceedings would be given to a non-party without also joining the person as a party, as was envisaged on a non-party's r 7.8 application in Lemery Holdings Pty Ltd v Reliance Financial Services Pty Ltd [2008] NSWSC 1344, 74 NSWLR 550 at [7], [57]. Rule 7.8 does not itself appear to be a source of power to join or substitute parties. The parties' submissions analysed cases cited in the commentary to the rule in Ritchie's Uniform Civil Procedure Rules NSW and other cases concerned with the rule r 7.8 or its precursors, but the cases do not go so far as to suggest that the rule itself is a source of power to join or substitute a party. It is unnecessary to consider r 7.8 further.
6. The respondent conceded that while the decision in Lemery Holdings makes the observation that r 7.8 may provide the power for substitution of a party, it does not confirm that proposition. There is no basis for the Commission to make the order sought to substitute the parties.
7. The appeal proceedings against the decision of Commissioner Newall were brought by the Union within time. For an unknown reason, the Union subsequently discontinued that appeal. It was open to the Union to press its appeal and come to some financial arrangement with the appellant rather than discontinue.
8. Mr Olsen's evidence is that the Union's consent was recorded in a deed between the Union and Mr Tristan Ware on terms including authorising the appellant to have the conduct of the application for leave to appeal and appeal on behalf of the Union. However, the operative provisions of the deed do no more than provide the Union with an indemnification against costs arising from these proceedings.
9. The respondent submitted that Rule 50 of the Union's Rules as certified pursuant to s.392 of the Act dated 15 May 2008 is clear about the manner in which proceedings before this Commission are taken:

50 Legal Proceedings Any matter submitted to the Industrial Relations Commission or any other approved court or tribunal, shall be done so under the authority and the direction of the Union Secretary/Treasurer.

1. The Motion seeks to allow the appellant to conduct his case in the name of the Union and simply report back to the Union, whereas the Rules clearly state that proceedings such as these are conducted under the direction of the State Secretary.
2. The respondent submitted that the Commission should dismiss the proceedings and make an order for costs principally on the grounds that the appellant at all times was aware of the respondent's position throughout a quite lengthy period of time as detailed above. The appellant has been on notice for some time that he should discontinue these proceedings otherwise the respondent would seek costs.

Consideration

1. In determining this matter, I have given consideration to all submissions and case materials submitted by the parties. I have also given consideration to the guiding principles set out under ss.56, 57 and 58 of the Civil Procedure Act 2005.
2. It is clear on the material before the Commission that the Union is not a party to this particular matter and it has not sought leave to intervene.
3. It is clear on the material before the Commission that the Union has not identified which rule or rules would permit the appellant to conduct the appeal proceedings pursuant to s.187 of the Act on its behalf. Nor has the Union sought to explain to the Commission the reasons why it discontinued its application for leave to appeal and appeal the decision of Commissioner Newall during proceedings before the President on 4 November 2016.
4. The principal purpose of the Deed between the Union and the appellant appears to be no more than to indemnify the Union against any costs associated with the matter in exchange for providing a vehicle to circumvent the appellant's lack of standing to bring the application in his own name.
5. The appellant seeks to rely upon UCPR r 7.8. That rule is discretionary and relevantly states: 7.8 Court may determine who has conduct of proceedings The court may give the conduct of the whole or any part of any proceedings to such person as it thinks fit.
6. There were short submissions made concerning the application of the rule. Against that backdrop, I have formed the view that the rule does not provide for the substitution of the parties as sought by the Motion.
7. The appellant does not seek the exercise of the rule to correct any mistake as to the identification of a party as is sometimes the case in proceedings before the Commission.
8. The Motion essentially seeks to rely upon the provisions of ss.64 and 65 of the Civil Procedure Act 2005 to "amend" the appeal papers. In my view, the legislative intention of ss.64 and 65 was to provide for an amendment or correction of a defect, error or mistake in documents subject to court proceedings. Sections 64 and 65 do not provide for the simple substitution of the parties as sought by the Motion.
9. The appellant has acknowledged that the current appeal proceedings were not representative proceedings. He has also acknowledged that should the Motion be refused, a further remedy subject to the granting of an extension of time is available to him.
10. At all material times, the appellant was not himself a party to the proceedings in IRC2016/206161. He was represented by the Union. That said, he does not have standing to appeal the decision of Commissioner Newall himself as he does not fall within any of the classes of persons set out in s.187(1)(a) of the Act who may, subject to leave, appeal a decision of the Commission.
11. The Motion, in my view, is also contrary and inconsistent with s.3(d) of the Act which states that an object of the Act is: "to encourage participation In industrial relations by representative bodies of employees and employers and to encourage the responsible management and democratic control of those bodies".
12. In my view, the Motion is contrary to the public interest and legislative intention of s.187 of the Act.
13. The Motion has the capacity to discourage participation in industrial relations activities by representative bodies of employers and employees should an individual employee be afforded equal standing to that of a registered organisation to conduct an appeal or participate in other proceedings before the Commission. The Motion in my view is also contrary to the spirit and intent of the industrial organisations provisions of the Act.
14. Having considered all the material put to the Commission in this matter, I have determined that the Motion should be dismissed. I so order.
15. The matter of costs should be the subject of a separate application and filed within 14 days of the date of this decision.

Amendments 25 May 2017 - Capitals corrections 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. Decision last updated: 25 May 2017