Chiu v Kou & Anor [2004] QIRC 175 (2004) 177 QGIG 395

15 October, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 395 ########################################################################################################################### INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Miguel Chiu AND Li Jing Kou AND Fortune Place Realty Pty Ltd (Nos. B523 and B524 of 2004) COMMISSIONER BROWN 30 September 2004 REPORT ON DECISION (as edited) In giving his decision from the Bench on 27 September 2003, Commissioner Brown said: “The following determination is made pursuant to Rule 22(1) of the Industrial Relations (Tribunals) Rules 2000. To suggest that these two matters have followed a most unusual path to this point would be trite. However I feel I must refer briefly to some of the history. Initially, conciliation did not proceed. The reason being that the respondent held the view that this Commission lacked the jurisdiction to hear the matters given the respondent’s view of the level of income of the applicants and the claim of the respondent that the applicants had not been employed by the respondent for longer than three months. The respondent wanted those matters tested prior to any conciliation. That was their right. The matters went to a callover and were allocated to me to determine the preliminary matters. When finally the preliminary matters were narrowed to one, that being the allegation that the applicants were not employed for longer than three months, the hearings (joined) commenced. Early in the proceedings, the Commission asked the representative of the applicants to clarify the issue of respondency. He did so and named Fortune Place Investments (Goodna) Pty Ltd as the respondent. The matters were then adjourned at the request of the applicant. Upon resumption, the applicants had dispensed with their representation and decided to represent themselves. The applicants’ first language is not English, and the Commission engaged the services of an interpreter to assist in proceedings. It became apparent to the Commission early in the taking of evidence that the applicants believed that Fortune Place Realty Pty Ltd was the respondent whilst Fortune Place Investments (Goodna) Pty Ltd was the named respondent. This was raised by the Commission. Following this, the applicants sought an adjournment on 22 July 2004 to consider their position. On the 23 July 2004, the applicants both lodged documents to amend their applications by joining Fortune Place Realty Pty Ltd as a respondent in both cases. -- 1 of 2 -- 396 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 15 October, 2004 The Commission accepts that the advocate for the applicants relied on instructions from the applicants to conclude that Fortune Place Investments (Goodna) Pty Ltd was the respondent in both cases. The applicants obviously were mistaken, and continued with this view until 22 July 2004. A fresh application naming Fortune Place Realty Pty Ltd as respondent would be out of time. However, these are not fresh applications, they are applications to amend the original applications. I have considered the respondent’s submissions in this regard. Having regard to the language difficulties of the applicants, the complete lack of understanding displayed by the applicants regarding the processes of the Commission and the fact that Li Jing Kou in her original application did in fact name Fortune Place Realty Pty Ltd as a respondent and that somehow this was dispensed with or lost in the unusual process referred to earlier, I am of the view that the Commission should show sympathy to the plight of the applicants and allow the amendment. In concluding thus, I have also considered the comments of President Hall in the matter C48 of 2004, where he states: ‘There is nothing exceptional in the proposition that an application may be brought against more than one respondent and a plaintiff is in doubt about the person against whom to seek relief. Compare Uniform Civil Procedure Rules 1999, Rule 65.’. I understand from the submissions of Ms Brewer that the matters will now return to the Commission for conciliation. Given the admissions made in the statements of the respondent’s witnesses, I believe this to be appropriate. I have nothing further. The matters are adjourned.”. Dated 30 September 2004. By the Commission, [L.S.] G.D. SAVILL, Industrial Registrar. Hearing Details: 2004 21 June, 22 July, 19 August and 27 September Released: 30 September 2004 Appearances: Mr Miguel Chiu appeared on his own behalf. Ms Li Jing Kou appeared on her own behalf. Mr P. Challen and Ms K. Brewer of Hawthorne Cuppaidge Badgery for Fortune Place Realty Pty Ltd. -- 2 of 2 --