Crawford and Others v Quality Bakers Australia Limited [1993] QIRC 397 (1993) 144 QGIG 472

472 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [29 October, 1993 #################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1990 s. 39 - appli ca tio ns to va ry contracts or arrangements Jam es Crawford and Others AND Quali ty Bake rs Australia Limit ed (Nos. B345, 8346, 8352, B353, 8356, 835 7, 8390, B414, and 8415 of 1992) COMMISSIONER DEMPSEY 15 October 199 3 Cont ra cts or Arrangemen ts - Sect ion 4.21 (now s. 39) of Ac t - Further Pre l im inary Issue - Respondent Req uests Stri king Oul of Matters - Proposed Amendmen ts to Applicatio ns - Case Law - Amended Pl ead i ngs to be Fo rwarded by Applicant - Further Date to be Set for Hearing. DECIS ION When th is matter was l as t before the Commissi on on 25 May 1993 Mr Watson for the respondent requested that the matter be siruck out an d in suppo rt of h is requ est reliance has been placed on the d ec ision of the th en Pres id en t, Jus ti ce Moy nih an dated 29 March 1993. On the other han d t he applicant has sou ght to further amend the original app li ca tions in order to comply with the interpret at ion that has b een gi ven to section 4.21 (now s. 39) by the then President in his d ec i sion. Authoriti es were no t te ndered in support of t he mo tion to strike the matter o ul, however I have referred to Ihe decision of Barwick, C. J. in General Steel Industri es Inc. -v- Com mi ssioner for Ra il wa ys (NSW) and others reporte d (1964) 11 2, CLR at pp 128 I2 9" - "The pl aintiff rightly poin ts out that jurisdiction summari ly to terminate an action is to be sparingly employed and is no t to be used except in a clear cas e where the Court is sa tisfied that it has the req uisite material and the ass i stance from th e parties to reach a definite and certain conclu sio n. I have examined the c ase law on the subject ... . ... .. ". See al so decision of Moyn i ha n J. reported at QG IG Vo l 13 1, p.p. 403 - 404 Daryl Samue l Manley of BS & DM Manley Grain Growers and the Austral ian Wo rk ers Un ion:- "The next questi on wh ich arises is whether the Industrial Commi ss ion aught neverthel ess to have di sm i ssed the appli ca tion. That was en ti re ly a matter w ithin the di sc re ti on of the Commission. The Commi ssio n was plainly concerned at the del ay but rega rd ed as the decisive factor th at so much time, money an d effort ha d b ee n expended in the proceedi ngs. I am not persuaded that th e Commi ss ions di scret ion miscarried in reaching thi s conclusion. .. . ... " In the matt ers before me I do not have sufficient information to reach a definite an d certain conclusion and ad di ti onal ly I have made certain findings, and the applicants have expended a grea t dea l of time and effort on the matters to date as has the respondent. Therefore in view of the mat1ers I must now decide I am of the opinion that i t wou ld not be fair an d just to strike the maners out although I must sa y I was almost conv inced to ta ke that course having studi ed in detail the decision of th e th en Pres ident dated 29 March 1993 and in par ti cu lar the commen ts he made with re sp ect to inadequate pleadings and the applicants not ha ving made out a case tha t the remuneration curren tly being pa id w ithin the terms of the vendor agreemen t i s h arsh , un fa ir or unj us t. I have also re ferred to " Ca i rns on Civ il Procedure" and in particul ar, Rules of Pl ead i ngs, in order to un de rst an d the argumen ts advanced by Mr Watson and h av ing done so I must say that I ca n understand the po ints he has made with respect to pl ead ings and the relatio ns hip that pl ea dings m ust have to the claims that are made. From " Ca i rns on Civil Procedure" the foll ow ing c an be fo und a nd ha s influenced the position I will u!timately come to:- Page 113. " Every pleading shall con tain and con tain onl y, a sta tement in a summary form of th e materi al facts on wh ich the party pleading re l ies for h is clai m or defence ........ but not the evidence by which they are to be proved. ". Page 115. "Perhaps the intent io n of the rules is bes t gl eaned from a quo ta tion of Part oi the decision of Cotton J. in Ph ill i ps -v- Ph ill ips esp ecially as that case was decided shortly afte r the introduct ion of the Ju dicature system: [In) my op inion it is absolutely esse nti al that t he pl ead ing, not be em ba rrassing to the d efe ndan ts, should state tho se facts which will put the defendants on their guard and tell them w ha t they have to meet when the case com es to trial .". In so fa r as the amendm ents that were put forward by th e applicant at the l ast day of hearing I am not p repared to accept them until such time as the responden ts views have bee n put to me an d in thi s rega rd I wi ll require the app l ican ts to amend their pleadings and state the facts upon wh ich they rely 10 support their con te ntion that the existing ra tes prov ided in the vendor ag ree ment are harsh, un fa ir or unjust. Fu rthermore I believe i t w ill be appropri ate for the appli ca nt to state in some detail t he reason why the ra te (e.g. Crawfords Matter 8345 of 1992) should be amend ed from 16 2/Jc to 50c. In order to co mp lv with these requi rements the amended pl ead i ngs should be (orward ed to the Respondent an d the Com mi ssion. The Respondent should be given a reasonable t im e to rep ly and wh en the exchanges between t he pa rti es are complet ed an d the iss u es involved are hopefully narrowed I wi ll then set a date for further consideration o th e matter and at that time I w ill h ear from the respondents first wi th respect to their view on t he amendme nts given Ihat they should be full y ap p ra ised oi not only th e i ss u es but the fac1s surrounding the app li ca n ts reason for requiri ng the intervention of the Comm ission on the matters that need to be ad dressed. H. DE MPSEY , Commi ss ioner. Appearances:- Ms D Linnane, with her Mr J. Lawson (instruc ted by Bennett and Ph i ll ip for the duly appointed agent John Lawson) in matters B3 45 to B357 and B4 13 and B4 14 of 1992 a nd . Ms D. Li nnane (instructed by Bennett and Ph ill ip s, as town agents for Welch an d We lch, so licitors) in matter B390 of 199 2. Mr K. F. Watson (oi Messrs Bl ake Dawson Wal dron) for Q uality Ba kers Australia Lim i ted. Opera ti ve Date: NIA Decision - Contract or Collateral i \rrangemen t. Rele ased : 15 Octo ber 1993 #################################################### -29 October, 1993) QUEENSLAND GOVERNMENT rNDUSTRIAL GAZETTE 47 3 -- 1 of 1 --