Burnett v Atlantis Relocations (NSW) Pty Ltd [2002] NSWIRComm 266

Burnett v Atlantis Relocations (NSW) Pty Ltd [2002] NSWIRComm 266

The Court held that the application to add the proposed respondents should be allowed because, approaching the matter as if the applicant were commencing fresh proceedings in the form of the proposed amended summons, it was not appropriate at this stage and without the evidentiary material that would arise later in the Court's procedure to determine whether the allegation against the proposed additional corporate respondent was so obviously futile that it would be struck out.

Jurisdiction
Australia
Judgment Date
17 October 2002
Procedural Posture
Application Under S106 of the Industrial Relations Act 1996 / Interlocutory Judgment on Notice of Motion to Amend Summons by Adding Additional Respondents
Outcome
Leave granted to amend the summons; applicant awarded costs of the motion except for costs thrown away by the adjournment on 8 August 2002.
Legal Topics
['unfair Contract' 'amendment of Proceedings' 'joinder of Respondents' 'futility of Proposed Amendment' 'costs']
['industrial Relations' 'employment Law' 'civil Procedure'] ['unfair Contract' 'amendment of Proceedings' 'joinder of Respondents' 'futility of Proposed Amendment' 'costs']

Case Brief

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Procedural Posture

Application Under S106 of the Industrial Relations Act 1996 / Interlocutory Judgment on Notice of Motion to Amend Summons by Adding Additional Respondents

Legal Issues

  1. 1 ['Whether the applicant should be granted leave to amend the summons to add three additional respondents to proceedings under s 106 of the Industrial Relations Act 1996.' "Whether it was appropriate at this interlocutory stage to determine the proposed additional corporate respondent's submission that proceedings against it would be futile." 'Whether the proposed amendment should be approached as if the applicant were commencing fresh proceedings in the form of the proposed amended summons.']

Ratio Decidendi

The Court held that the application to add the proposed respondents should be allowed because, approaching the matter as if the applicant were commencing fresh proceedings in the form of the proposed amended summons, it was not appropriate at this stage and without the evidentiary material that would arise later in the Court's procedure to determine whether the allegation against the proposed additional corporate respondent was so obviously futile that it would be struck out.

Court Disposition

Leave granted to amend the summons; applicant awarded costs of the motion except for costs thrown away by the adjournment on 8 August 2002.

Orders

  • ['The applicant is granted leave to amend the summons filed in these proceedings in the form of annexure A to the notice of motion.' "The applicant is to pay the respondents' costs thrown away by reason of the adjournment on 8 August 2002." "Otherwise, the respondents including the added respondents are to pay the...