Bowker & Anor v Software Engineers Australia (NSW) Pty Ltd & Ors [2002] NSWIRComm 135

Bowker & Anor v Software Engineers Australia (NSW) Pty Ltd & Ors [2002] NSWIRComm 135

Joinder was granted because the evidence indicated a corporate restructuring, that the current corporate respondents no longer operated the business in which the applicants were involved, that the proposed respondents appeared to be conducting the former business of the current corporate respondents, and that there was a real concern the current respondents might not meet any orders, so refusal of joinder could frustrate the Court's procedures. The proposed respondents fell within the class of entities against whom orders could potentially be made in s106 proceedings, although no basis for final relief against them had yet been established.

Jurisdiction
Australia
Judgment Date
11 June 2002
Procedural Posture
Application Under S106 of the Industrial Relations Act 1996 Alleging Unfair Contracts / Notice of Motion for Joinder of Two New Respondents; Extempore Judgment
Outcome
Application for joinder granted; amended summons to be filed and served urgently; matter referred for conciliation; liberty to apply if conciliation is unsuccessful.
Legal Topics
['unfair Contract' 'joinder of Parties' 'mareva Type Orders' 'corporate Restructuring' 'conciliation Under S109 of the Industrial Relations Act 1996']
['industrial Relations' 'employment Law' 'civil Procedure' 'corporations'] ['unfair Contract' 'joinder of Parties' 'mareva Type Orders' 'corporate Restructuring' 'conciliation Under S109 of the Industrial Relations Act 1996']

Case Brief

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Procedural Posture

Application Under S106 of the Industrial Relations Act 1996 Alleging Unfair Contracts / Notice of Motion for Joinder of Two New Respondents; Extempore Judgment

Legal Issues

  1. 1 ['Whether two proposed new respondents should be joined to the s106 proceedings.' 'Whether the evidentiary material showed a sufficient basis to believe the existing respondents might be unable to meet any orders and that the proposed respondents conducted the former business of the current corporate respondents.' 'Whether alleged service and pleading deficiencies, lateness, or the availability of Mareva relief justified refusing joinder.' 'Whether joinder of new parties required further conciliation under s109 before the hearing continued.']

Ratio Decidendi

Joinder was granted because the evidence indicated a corporate restructuring, that the current corporate respondents no longer operated the business in which the applicants were involved, that the proposed respondents appeared to be conducting the former business of the current corporate respondents, and that there was a real concern the current respondents might not meet any orders, so refusal of joinder could frustrate the Court's procedures. The proposed respondents fell within the class of entities against whom orders could potentially be made in s106 proceedings, although no basis for final relief against them had yet been established.

Court Disposition

Application for joinder granted; amended summons to be filed and served urgently; matter referred for conciliation; liberty to apply if conciliation is unsuccessful.

Orders

  • ['That the applicant file and serve its amended summons as a matter of urgency.' 'That the matter be referred to the President for reallocation for conciliation.' 'In the event that conciliation is unsuccessful, the parties have liberty to apply to have the matter relisted at short notice.']