Barton v VCB National Services Pty Ltd [2004] QIRC 119 (2004) 176 QGIG 517

16 July, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 517 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 276 – application to amend or void contracts Daryl Barton AND VCB National Services Pty Ltd (No. B1906 of 2003) COMMISSIONER BECHLY 1 July 2004 DECISION Two issues arise in the proceedings now before the Commission. One is an application for an award of costs against the respondent as a result of its failure to comply with a directions order of 19 March 2004 to serve witness statements by 17 May 2004. The other is leave sought by the applicant to amend the application to include two further entities as respondents. Directions were given on 19 April 2004 that the applicant have all material to the respondent by close of business on 27 April 2004. There was substantial compliance with that requirement. The respondent was directed to have all material to the applicant by close of business on 17 May 2004. That order was not complied with. Two of the respondents’ witness affidavits were not provided until 7 June 2004 and three others, unsworn, were not provided until 11 June 2004. The hearing of this matter was set for three days commencing on 16 June 2004. The original directions order of the Vice President of 5 January 2004 required the respondent to provide statements of evidence to the applicant and file same in the Registry by 4:00 p.m. on Monday 29 March 2004. That direction was not complied with by the respondent. A further directions hearing was held on 19 April 2004. There was a concession by the applicants representative that there had been some delay on their part about some issues. Also at that time an application was made to amend the application by changing the applicant from the natural person Daryl Barton to the business entity True Feelings Pty Ltd. That was a matter of consent between the parties. The original hearing dates were vacated and new dates set. The respondent’s failure to again comply with the directions order on this occasion has been the cause of the failure of the hearing of this matter to commence on the appointed day. A request was made on behalf of the applicant under s. 326(h) of the Industrial Relations Act 1999 (the Act) for the costs of three days hearing now thrown away. It was put that the proceedings before me are of an interlocutory nature. While there must have been some uncertainty in the minds of the applicant’s representatives as to whether the matter would be able to proceed to trial on the appointed day, whether the trial would go ahead or not on that day was of course a matter for the Commission to determine. The respondent argues that the applicant had other action available rather than to seek an adjournment. It was proposed that it was open to have the delayed material not admitted. That course, if accepted, would result in no evidence being admitted for the respondent. That course would be quite unacceptable for obvious reasons. It was further proposed for the respondent that this days hearing was not wasted as the applicant has used it to include two newly named respondents. That was a matter shortly dealt with. For costs thrown away as a result of the respondents failure to comply with the Commission’s Directions I award the sum of $2,000.00 to be paid to the applicant by VCB National Services Pty Ltd within twenty-one days from the date of release of this decision. With respect to the application to amend by including Commercial Services Australia Pty Ltd and Victorian Credit Services Pty Ltd as respondents, the presently named respondent entity VCB National Services Pty Ltd appears to be the successor of the above entities. It would appear from a “Privacy Policy” published on 20 December 2002 that Victorian Credit Services Pty Ltd traded as Victorian Credit Bureau and had as a subsidiary Commercial Services Australia Pty Ltd which traded as “CSA” It would also appear that a mercantile agency trading under the banner of “Victorian Credit Bureau” has operated for some twenty-five years under several directors with the original and enduring director being Mr Gary Russel Quirk. Mr Gary Quirk is a witness for the named respondent VCB National Services Pty Ltd and is a director of VCB National Services Pty Ltd and has been so since its inception on 13 January 2003. It commenced trading on 1 July 2003. He states that VCB National Services Pty Ltd, on 1 July 2003, replaced Victorian Credit Services Pty Ltd, which commenced trading on 29 August 1999, and Commercial Services Australia Pty Ltd which commenced trading on 7 July 2000. Both ceased trading on 30 June 2003. He further states “Since the inception of the Respondent it has been a leader in the finance industry and since 1991 focuses specifically in the collection of arrears…” Mr Wayne Atkins is a witness for the named respondent VCB National Services Pty Ltd. He is currently a director of VCB National Services Pty Ltd and has been a shareholder since inception. He states in his affidavit “I joined the Respondent in 1989 and left in 1997…” and “I rejoined the Respondent in 1999 as operations manager.” and later “I have been employed with VCB National Services for a period of sixteen months. I joined VCB National Services on the 1 st July 2003.” Later he states “On or about the 8 th of October 2002, I telephoned Mr Barton and followed it up with a letter send by email. I advised Mr Barton that Commercial Services Australia Pty Ltd, now represented by the Respondent, was interested in doing more vehicle repossession work in Queensland.”. It is clear that these witnesses for the presently named respondent regard as somewhat interchangeable the entities VCB National Services Pty Ltd, Victorian Credit Services Pty Ltd and its apparent subsidiary Commercial Services Australia Pty Ltd. There seems to be no substantial reason why the application for leave to amend should not be granted. It was proposed that allowing the amendment would cause significant additional work to prepare for the broader case thus generated. On the basis of the witness evidence I have great difficulty in accepting this as reality. -- 1 of 2 -- 518 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 16 July, 2004 While it was said that the granting of such amendment would bring about a need to scrap the existing application and replace it with an entirely new application I have great difficulty accepting this as being the case. The affidavit material of the present respondents witnesses effectively treats the three entities as one. While technically that may not be the case it is clear that witnesses for the respondent regard there to have been a continuum from as far back as 1991 (affidavit of Gary Russel Quirk) and, as far as the proposed new entities are concerned, since 20 August 1999 for one and 7 July 2000 for the other. An examination of the statements of Messes Quirk and Atkins reveal that they authoritively address issues raised in the applicants witness material which occurred prior to 1 July 2003, the date on which Mr Quirk states that VCB National Services Pty Ltd replaced the two entities now to be included as respondents (Other respondents witness statements are not presently available to the Commission). There would seem to be little need for much or any further evidence to now be required as a result of the amendment now approved. Should I be wrong in adopting this view I am prepared to hear further on the matter at the request of the respondent. The hearing of this matter has been considerably delayed through failure of parties to adhere to direction orders. Deputy President Swan has already had occasion to issue a caution about attitude to discovery processes during proceedings on 25 February 2004. I expect the parties to be fully prepared to proceed to trial on the days to be set aside for the hearing of this matter. The matter has now been allocated to me for final hearing. The parties will be contacted to establish suitable dates for a further directions hearing. In the meantime the applicant is directed to file in the Registry within fourteen days of the release of this decision the amendment now approved to include Victorian Credit Services Pty Ltd and Commercial Services Australia Pty Ltd as respondents and at the same time to serve such necessary documentation on the parties. R.E. BECHLY, Commissioner. Hearing Details: 2004 16 June Appearances: Mr J. Merrell, of Counsel instructed by Mr L. Forsyth of Hall Payne, on behalf of the applicant. Ms S. Moody, of Counsel, instructed by Mr R. Mitchell, on behalf of the respondent. -- 2 of 2 --