Dun v Misima Mines Pty Ltd [1995] QIRC 119 (1995) 149 QGIG 123

122 QUEENSLAND GOVERNMENT .INDUSTRIAL GAZETTE 112 Ma y, 1995 12 Ma y. 1995 1 QUEENSLAND GOVERNMENT I NDUSTRIAL GAZETTE 123 (.) l; l:ENSI.AN D l '\DlS I K IAI. RELt\ ·t !ONS COMM ISSIO\i flldus1rial Hclm ions Au 1990 s. 295 - applica! io n !o r re.instateme nt ~. 90C?.)( ;1)(i ) -· applicat ion fo r jo i1J ,kr liarry Robe rt Dun AND 1\ ·o. lt8f)i) of J'.1 9.JJ CO MM I S\ 10 . IR SW;\\i 2 May 1995 :\ pplic ~t it)ll li;r n:inSUl lC ll l CI H - /\pplic at iclll ft >r jnint kr ·- l'l~ccr l'aei lic I .ld a pub li c compall) - h t,ihl i,h rm:n l of prinw fi ,ue ca,c -- \:o disadvantage 1t 1 Pl acer Paci fi c Ltd - Suflicicnt invo ln:n1cnt of Placer Pacilie I. id in em ployment or applicant - Joi ndc r •j ust and ncccs, a ry l"urthcr Di rect ions ord cn:d -· Joind cr g ra nted. DECISIO~ The primar) applica ti on befo re the Comrn i,,ion inrn h c, a d ai rn Jo r relief agai n~t .\1isima Min cs l'ropr idary Li mit ed fo r th e alleged ly unfa ir dism is ,al of th e appl icant. :vlr ll Dun. The app li cant in this n1attcr \, a, rcpre~c ntcd b) Yl r C \\'a ll O.C. Mr I llangcr Q.C. appeared for Placer Paci fic Li mit ed and a lso (with ohjc<.:ti on a, it related to the quc, Lio n of ju risdi ction) for tVlisima 1\'lincs Proprietary Li mited. Thi, matter li r~ t cmnc bcfor..: Chier Commis~ ioncr I !all at an earlier stage 011 a p re limi n ary po in t. /\s f\li si ma \ 1i nc , Pr<•pric'lar) l.imi tcd is si lllatetl in Pap ua :,..'c 1\ (i uinca. the n.: spondcnt requested. a, a th re shold point in that c,is-:. th at tht.! Quee nsl a nd Ind ustri al Rclauo11s Co mmissi c111 ( () IRC') "State a case in 1\Titing fo r t he o pi nion of t ht.! l nd listrial Court o n the tj llt.!S tion uf .,, hcthcr the ( 'om,ni" ion ha;; j urisdict ion to rn tcrta in th e a ppl ication by t he appl icant fo r rei ns tatemen t. remuneration for lost wages and compensat ion ." Chid Commiss ioner lla ll dctcm,incd t ha t in rejecti ng Lht: cla im to "State a case" to the Industria l Court. th e matter should proceed Ii> liinnal hea ri ng befo re a Co mm iss ioner of the QI RC at which sLage both j urisdiction and the substantiv e case wo u ld be heard. It is nN nccessa t) for me to reci te th e reasoni ng beh in d Chief Corrnn i~sioncr I fall 's decision. All lh at 11..:cds lo he stated is that this matter is set d0 \\'11 for fonnal hear in g ht.:tbre the Commission. as currently cons ti tu ted. on 11. 12. 26. 27 a nd 28 April 1995. This decision relates lo a procedural request on the part of the a pp lican t fo r joinder of a party. na me ly Pla cer Paci li e Lim ited (1\ .C.N. 008 46 393 8 ). a pu blic co mp any registered in New Sou th Wa le ~. as a responden t to the ap plicat ion fo r rcinstmcmcnt/co mpc nsat ion of Mr 13 Dun. Mr Wal l Q.C.. for the applicant. sta te d that the applicanl claims Lo ha ve been employed by M is ima Mi nes Propri clary Limited hut, in the allemati \·e, he was em ployed by Placer Paci fic Limited bul wo rki ng for Mi sima Mines Prop ri etary Limited. The primary th rust of Mr Wa ll 's submiss io n was that the Commission need only b1; satisfied th al a pr ima facie case he c.sta blishcd sullicient lo jo in Placer Paci fic Limited as a respo nd ent. It was con tended tl1c1 t wh~n th is occurred. a ll th e material re levant for the Co mmi ssi on to consider would he be fo re the Commission as it proceeded to hear the pr imary s ubrn issions on both j urisdiction an d suhslanti ve ca~ e. lo suppo rt his asse rti on that a prima jacir> case co ul d he c,ta hlishcd. 'v1r Wa ll Q.C referred to the Commission claims. the cs st~nce of wh ich show: th at the named respondent is 80 % owned by Placer Paci fic Limited (a pu blic com pany li sted on the Austra li an Stock Exc hange): that in th e le tt er or contract ma ny n.:fen.: nccs relate to Sup..:ran ,w at ion pcr1,1inin g to the applicant: th at Pl ac<: r Paci fic I.im itcd adm i ni ster, medical and dental schemes to wh ich the applican t i.s cnti1lcd: th at r ef erences had been made to Piercer Paci l'ic Lim it ed marwgemen t proced ures and practices to be adopted hy th e applicant: th at t he annual statement of Lhc applicant's Superannuation bene fi ts (i n the Placer Pac ifi c I .i mitcd Scheme) re fe r lO "date j oined Plac..: r group": that advertis;.;ment.s for j ob posi ti ons at :•vfo inw M in1:s Proprict,>ry Limited ha ve appeared in Austra lian newspapers under the ge ne ra l heading of "Placer l'ac il ic Lim ited" stati ng that "the po si t ion vacan t is for our Mis im a Mines Proprietary I .i mit-:d". among.St ()th er rc fc n: ncc,. In respo nse. Mr I lan g.cr Q.C. , tated th at. at th i! ,1 utsc t. the ap pli cant claimed that Misima Mint.:s Propr ie tary Limited wa s hi s ..: mp loycr. a situal io n read il ) ,iccepted hy the nam ed res po nden t. The newly asserted claim of the a pp li cant th at "perhaps" l'lac1; r Pacific I.imi tc d co ul d bt: the cmployer "in !he altcmati vc " w,L~ co nfusing. Rat he r the relat ion sh ip as it C1': istcd between th e na med respondent ,md Placer Pacific Li mit ed was o ne of parent/s ub sid ia ry compan)·. A nidavi ts were tende re d fr o m both the corpor ate so li (; ilor fo r Placer Paci fic L imi ted and t he solic iLor representing Misima Mine s Proprietary l.imi t.:d an d Plal'.Cr Paci fi c Lim ited (for th,'. pu rpose of th e: j oindcr applicat io n). The a ffi d av its a tt ested that th..: applicam was pa id by Misi ma Mines Prop ri etary Li mi ted: the a pplicant's c:mplu yment was direc ted a nd controlled by Misi ma Mines Proprietary Limited and th at Pla ce r Pacific Limited had 110 control ove r th e e mp loyment throughou t t he. time that the appl ica nl was cmplo)Cd by Mi; ima Min~ s Propri1;t ar) I.uni ted, an d t he latlcr uflid,J\ it produced be fore the Co mmission relev an t documentary evidence with regard to the applican t's con tract ,if empklyment and other related mailers. Mr I!anger ().C. stated th at a ll of th e nonna l empl(1ymcn 1 ind ici,t pvintcd W M is ima Mines Propr ietary Lim ited being the employer of 14 9 76 I IX )C -- 1 of 2 -- 124 QUEENSLAND GOVERNMENT INDUSTR IAL GAZETTE [ 12 May. 1995 th e app lic 11nt an d thut Placer Pacilic Li mited was me rely part of the overall Company st ru cture occupying a tra di tional parent Company ro le . Mr Hanger Q.C. then proceeded to c ite a number of author it ies. namely ANZ Executors & Trustee Cmnpony limited v. Quintex ( 19 91) 2 Qd. R 360. High Court of Austra li a decis ions in Walker v. Wilbourne ( I 976i 137 CLR. 607 3nd Stephens and Brodribb Sawmilling Company Proprietary limited ( 1986) 160 Cl ,R 16. These cases generally support the view that Companies in a group are co nsidered as separate legal identities even when the d irc.ctorships o f the Companies may be identical. Mr Hanger Q.C. s tated that th e general princi pl e espoused is highlighted in the decision of McPherson J in Qui111ex whe re His I lcmour s ta tes: " Un der a ditlcrem legal system it may be that each compan) in a group ,vould be jo intly and separate!) liable for the debts of every o th er but that is not the course the law has taken. The dcci~ion in Walker and Winbo rn e is binding authority 11,r considering each company in a group as a separate entity havmg assets and liabilities of its o,m that arc di s tinct from those of all th e others instead of "ho happens to deal with the o nl y linancially viable enti ty in the group may be exception a ll y as tu te or simp ly unusually fortunate but in e ither c,·cnl he is not in law liable to have his jus t c laims defea ted by arbi trary redistribution of assets or liabilities of his corporate debto r. The plaintiff's claim if given effect wi ll compel Cllch sub~id iary to meet a liability that was never incurred by i t. ". In response to questions from the Bench as to the claim of Mr Hanger Q.C. that the Commission need merely he satis fied th at a prima facie case was established, Mr II anger Q.C. be li eved that one must consider the ram i fi cations or ligh tl y j oining an organisa ti on as a party to procc:cdings. In essence. Mr I langcr Q.C.'s concern was that while the pr in ciple of establishi ng a prima /aci e ca~e was sound. the p rin ciple could not ex tend lo an argument which suggested that a pri 111a fac1 e case "might" he established at some stage. Thi;; Com mi ssion was either ,atisficd th at tht::n.: "as materia l before it LO accept that a prima fade case ex isted su fficient to consider joi ning as a responde nt Placer Pacific Limited. or it was not. It was Mr Hanger Q.C .' s contcmion that on the mater ial bcfon: the Commission. a pri111a ft1Cie case had not been established. The Comm iss ion purs u<!d a line o f qui::st ioning with Counsel fo r Placer Paci fic Limi ted which went to disco"ering whether any disadvantage would be suffered hy Placer Pacific Limited were th ey to be joined as a party to these proceedings. [ It shou ld he noted that it is dea r that th e question of jurisdiction is yet to be determi ne d h~' the Comm is sion at the commencement of th e hea ring proper j. The response from Mr Hanger Q.C. went more to a conside ration of the position in which Place r Pac i fic Limited might find itself . theoretically. in te rm s of their pub lic accounts. Notw ithstandi ng th at exp ressed view, Mr Hang er Q .C. co ul d not ind icale with any degree of surety in what manner Placer Pacific Lin 1itc d lll ight be disad vantaged were they to be jo ined as a re spondent in this mauer. This. of course. is a pos ition that is qui te understandable. par1ict1larl) at thi s early stage of the process. Conclusion I have de1em1 ined to jo in Placer Paci fic Li mi ted as a respondent in th is mauer. My reasons for so doing are as follows. The progression of the applicant's c laim has been bedevilled by circums tances wh ich infrequently ar ise in this j urisdiction. These aspects h:ive already been dealt wi th by Chief Commissioner Ha ll in h is earlier decision on a pre li mi nary point but inc lu de quest ions of' li me delays in this hearing: the named respondent being situat..:d in Papua New Guinc.a; the ava il ab il ity of witnesses and the prospect that such witnesses could arguably have been req ui red tu trav.: I to Australia twice were the questi on of j urisdiction and. if neccssar}. substantive case to proceed. rurthe r. I have not had the opponun it}' of hearing any deta iled debate on any of the materi al pu t before me in this prelim inary hearing. The above. however, clea rl y arc issues whkh need tn be co nsidered by th e Commission in this instance as well. Coupled with these fono rs. I have taken in to account the fact Lhat there would appear to be no serious question of di~ advantage to Placer Pacific Limite d were they joined as a respondent in this application. Wh ile the above is persuasive in t<:nns or the decision I have reached. in my vi ew there arc sufficient in dications of Placer Paci lie Limi tc d's involvement in the cmploymcm or the ap pl icant 10 reasonahl) conclude thm it is ''j ust and necessar) " (,cc s .90.2 or the /11dus1rial Rela1iom Act 1990 - "In any Industrial cause the Prc~idcnt and Industrial Commissione r or tht: Industria l Re g istrar may make o rders or gil'e directions considered j ust and necessary in relation lo (a) (i) naming and j oinder of parties") to joi n Placer Paci fic Limited as a respo ndent in this matter. As such Placer Paci fic Li mited i, LO he joined as a responden t in th..: mauer of case B809 of 1994 . In tcnns of the orde rs sough t in this preliminary ,ippl ication. dctcnnin.: as fo ll ows. Th at liirthcr directions be made by wa) or nrder by th e Industrial R..:g.istra r on !'lacer l'acilic Lim ited as a respondent that: (a) a copy of ,1 11 materials filed and/or de livered by th,~ applican t Barry Rohen Dun and the respondcnl Misinrn Mines Prop ri etary l.imi ted he s.:rvcd upon Placer Paci li e Lim ited fo rthwith. (b) that Placer Pacific Limi ted fik and scr" c .ill mat erial in rcsptmsc l ,, such material by 5 .00 p. m. on Friday 7 Apr il 1995. (e) !hat Placer Pacific Limited make disCO\'Cry of a ll n.dc, ant documents touching and concerning the rnauers in these proceedings by 12 noon o n Monday I O April 1995. (d) 1hat each party serve on the other s1a1cmen 1.s of C\'idcnce ol' witnesses which that pany proposes to call .it the hcariug or the applicatio n b) 12 noon Monday 10 Ap ril 1995. (e) that th e applicant and the n;spondcnt Mi s im a Mines Proprietary Limited provide b! way of fu r1her di~covery a list of documen ts relevant to the matters in issue in the application by 5.00 p.m. on Friday 7 April I995. (I) that the re spondent Misima Mines Proprietary Limited provide further and better pllrticular$ in answer to the applicant's request for lurll1er and better particu lars in respect of paragraphs 3(a} 10 (h) of the request d di, ·ercd by the applicant to th e respondent on 25 Novemhcr 1994 hy 5.00 p.m. on Friday 7 April 1995. 14 976 _ 1. DOC 12 May , 19951 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE I orde r ~ccordi ngl) D.,\ . SWAN. Co mm iss ioner. Appearances:- :Vlr C. Wall Q.C. instrnctcd by Mr T . McKee of Nehmer Davenport Dean '.'v'l cKce So l ic i t◊rs li1r Ban)' Robert Du n. rvlr I. ll a 11 gcr Q.C. instructed by Mr M Smitl1 or Houl ton Clcarv and Kern Solicitors fo r Misi nrn Mines Pty Ltd.. , Operative Date: NIA Dcci ~i on - Application for joinder Released: 2 May 1995 ###################################################### # 125 -- 2 of 2 --