DECISION NO:582/96
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - practice and procedure - application to amend title of respondent after judgment and orders entered - jurisdiction of court to correct judgment or order which does not give effect to intention of court in making this order.
Industrial Relations Act 1988 (C'th) SS 170EA
Industrial Relations Court Rules, Order 35 rule (7)(2) and (3), Order 42, rule 12(1)
Cooper v Keith W Allan & Associates and Kallan Nominees Pty Ltd, Millane JR, unreported, IRCA 402/96, 27 August 1996.
SHANNON LOUISE DAWSON v DAQUI INVESTMENTS PTY LTD
WI 1516 of 1995
Before : RITTER JR
Place : PERTH
Date of Judgment : 25 NOVEMBER 1996
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY )
WI 1516 of 1995
B E T W E E N:
SHANNON LOUISE DAWSON
Applicant
A N D:
DAQUI INVESTMENTS PTY LTD
Respondent
MINUTE OF ORDERS
25 NOVEMBER 1996 PERTH RITTER JR
THE COURT ORDERS THAT:
1. The title of the respondent be amended to Daqui Investments Pty Ltd.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY )
WI 1516 of 1995
B E T W E E N:
SHANNON LOUISE DAWSON
Applicant
A N D:
DAQUI INVESTMENTS PTY LTD
Respondent
REASONS FOR DECISION
25 NOVEMBER 1996 RITTER JR
This is an application under Section 170EA of the Industrial Relations Act 1988 which proceeded before me for hearing on 5 December 1995. On 30 January 1996 the court ordered and declared that:-
1. It is declared that the respondent terminated the employment of the applicant in contravention on the Industrial Relations Act 1988.
2. Within 21 days of the date of this order the respondent pay to the applicant the sum of $2,000.00 in compensation pursuant to section 170EE(2) of the Industrial Relations Act 1988.
By letter dated 3 April 1996 the solicitor for the applicant requested that the orders made on 30 January 1996, which were entered on 19 March 1996, be varied to amend the name of the respondent from Charlie & Rose Daqui Trading As Pasta E Vino Restaurant to Daqui Investments Pty Ltd Trading As Pasta & Vino Italian Restaurant.
The letter said that the purpose of the change was to permit enforcement of the judgment.
Upon the matter being drawn to my attention I requested that District Registrar Richardson write to the solicitor for the applicant and also the respondent requesting that submissions be filed in writing as to whether or not the order could be varied and if so on what basis.
The applicant responded to this by filing written submissions on 10 July 1996. The respondent has not responded to the request. The applicant's submissions were prepared by Mr Williams who appeared as counsel for the applicant at the hearing.
The applicant's submissions confirmed that the applicant sought an amendment of the name of the respondent as outlined above. The submissions also asserted that the court may if it thinks fit vary a judgment pursuant to the Industrial Relations Court Rules, Order 35 rule 7(2) sub-paragraphs (e) and (f).
The submissions of Mr Williams pointed to the history of the matter and annexed a search of the business name Pasta & Vino Italian Restaurant. This indicated that from 1 June 1994 Daqui Investments Pty Ltd carried on business in the name Pasta & Vino Italian Restaurant, and that prior to that the persons carrying on the business were Charles Daqui and Rosalba Daqui.
The submissions also annexed the company search of Daqui Investments Pty Ltd. This indicated that the directors and shareholders of the company are Charlie Daqui and Rosalba Daqui and that Rosalba Daqui is the secretary of the company.
Order 35 rule 7(2)(e) and (3) is as follows:
"(2) The Court, where it is not exercising its appellate or related jurisdiction under Division 5 of Part XIV of the Act, may if it thinks fit vary or set aside a judgment or order after the order has been entered where:
(e) the order does not reflect the intention of the court; and
(3) A clerical mistake in a judgment or order, or an error arising in a judgment order from an accidental slip or omission, may at any time be corrected by the court."
These rules were considered by Judicial Registrar Millane in Cooper v Keith W Allan & Associates and Kallan Nominees Pty Ltd, unreported, IRCA 402/96, 27 August 1996. On page 13 the Judicial Registrar commented that:
"In context, the abovementioned sub-rules are remedial ones and should be given a beneficial interpretation by the court."
I agree.
In Cooper, Judicial Registrar Millane made an order that the title of the first respondent in each proceeding be amended to Keith William Allan as "the only intention the court could probably have and did have was to ensure that a legal person was named as the first respondent as well as ensuring that any judgment or order made against a legal personality, even if it was made in the name of the business, was enforceable." In that case, the application had initially been made with Keith W Allan & Associates being named as the respondent.
In this case, the original application was made against Charlie & Rose Daqui Trading As Pasta E Vino Restaurant. The application was prepared by the applicant in person.
The employer's notice of appearance is a curious document. This states in the section concerning the details of the employer named on the application the following:
"3. Full Name
C&R Daqui T/A Pasta e Vino Italian Restaurant
4. Has the Employee given your name correctly?
Yes.
5. Address
113 Spencer Street, Bunbury WA
6. Contact Person
Charlie Daqui
7. Type
Company
8. Are you the true employer?
No.
Who is? Give details."
[Blank]
Attached to the notice of appearance was a letter to the Industrial Relations Court of Australia purportedly signed by Rose Daqui, Company Director, Pasta E Vino. This letter says that "Ms Dawson was not employed by us." It also says:
"She did however have a trial night, for which she was paid; other attempts by us to try her again were met by excuses not able to come in again, for many or various personal reasons.
We are unable to understand this action by Miss Dawson whom we barely know and has never been our employee."
The contentions raised in this letter were not pursued at trial.
Pursuant to an order of the court the applicant filed a summary of facts on 12 October 1995 which said that:
"1. The applicant was employed as a part-time waitress at the Pasta e Vino Restaurant ("the restaurant") located at 113 Spencer Street, Bunbury from in or about November 1994 until she was dismissed on 25 February 1995.
2. At all material times, the restaurant was owned and managed by the respondents."
The respondent's summary of facts filed on 18 October 1995 stated that:
"1. The applicant was employed on a casual basis, otherwise paragraph 1 [of the applicant's summary of facts] is correct."
Paragraph 2 of the respondent's summary of facts read that:
"2. Paragraph 2 [of the applicant's summary of facts] is correct."
Therefore, there was no issue raised in the respondent's summary of facts either that the respondent had been incorrectly named or that Charlie Daqui and Rose Daqui were not the correct respondents. Indeed paragraph 2 admitted that the restaurant was owned and managed by Charlie Daqui and Rose Daqui Trading As Pasta E Vino Restaurant.
There was no issue at the trial as to whom was the correct employer or whether the respondent was properly named.
The documentation now provided to the court indicates that Daqui Investments Pty Ltd carries on business as Pasta & Vino Italian Restaurant. It was clear at all times that the applicant's claim was against the owner of this restaurant. It was the owner of the restaurant who was said to be the employer of the applicant; and the evidence at the trial and the documentation filed prior to trial proceeded on the basis that the owners of the restaurant were Mr and Mrs Daqui.
Given that Daqui Investments Pty Ltd carries on business as Pasta & Vino Italian Restaurant, it is that corporate entity which ought to have been named as the respondent. Order 42 rule 12(1) of the Industrial Relations Court Rules provides that where a claim is made against a person in respect of anything done or omitted or suffered in the course of, or otherwise relating to, a business carried on within Australia by that person under a business name:
"(a) If the business name is registered in a register, in the state or territory in which the business is carried on, which register discloses the name and residential address of the person - a proceeding shall only be commenced against that person in that person's own name or pursuant to division 1; and
(b) If the business name is not registered in a register referred to in paragraph (a) - a proceeding may be commenced against that person in that business name."
Therefore, as in this case the business name is registered in Western Australia, being the state in which the business is carried on and the register discloses the name Daqui Investments Pty Ltd as the person carrying on business the proceeding should have been commenced against that (corporate) person in that person's name.
As stated earlier, the effect of the applicant's submission is that the court ought to amend the name of the respondent so as to reflect the intention of the court.
I accept this submission. It was the intention of the court that the judgment be entered against the employer of the applicant, being the owner of the Pasta E Vino Italian Restaurant in Bunbury where the applicant worked from about November 1994 until 25 February 1995. The order was made against Charlie and Rose Daqui Trading As Pasta E Vino Restaurant, as on the information before the court it appeared that Charlie and Rose Daqui were the owners of the Pasta E Vino Restaurant. As it turns out, Daqui Investments Pty Ltd are the owners of this restaurant. As it was the intention of the court that judgment would be recorded against the owners of the restaurant, it is appropriate to accede to the applicant's motion.
Accordingly the court will order that:
1. The title of the respondent be amended to Daqui Investments Pty Ltd.
I certify that this and the preceding seven (7) pages
are a true copy of the reasons for decision of
Judicial Registrar Ritter.
Associate:
Date:
APPEARANCES
Representative for the Applicant: Mr Chris Williams
Respondent in person: Mrs Rose Daqui
Dates of Hearing: 5 December 1995
Date of Judgment: 25 November 1996
