Domanko v Chloer Pty Limited

APPLICANT (RESPONDENT ON MOTION) Robert Domanko

FIRST RESPONDENT PARTIES: Chloer Pty Limited (In Liquidation) Formerly Business Catalyst International Pty Limited

SECOND RESPONDENT (APPLICANT ON MOTION) Zia Qureshi

CATCHWORDS: Unfair Contract - Interlocutory proceedings - Notice of Motion seeking proceedings be dismissed - Claim no reasonable cause of action disclosed in summons for relief - First respondent in liquidation - Whether second respondent had necessary connection with impugned contract - Whether proceedings against second respondent futile in light of requirement under Corporations Law to obtain leave of Supreme Court to proceed against first respondent - Whether leave required before conciliation of claim against second respondent - Leave granted to amend summons for relief - Applicant to consider its position regarding the obtaining of leave and other matters

Corporations Act 2001 (Cth) LEGISLATION CITED: Industrial Relations Act 1996 Occupational Health and Safety Act 1983

Brown v Rezitis (1970) 127 CLR 157 Burgess and Ors v Mount Thorley Operations Pty Ltd (2003) 132 IR 400 Crowe v UCS Developments Pty Limited (2003) 130 IR 266 Doran Constructions Pty Ltd (In Liquidation) v Beresfield Aluminium Pty Ltd (2002) 52 NSWLR 416 CASES CITED: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 McCausland v Surfing Hardware International Holdings Pty Limited & Ors [2005] NSWIRComm 334 WorkCover Authority of New South Wales (Inspector Maltby) v Josef & Sons Contracting Pty Limited (In liquidation) & Ors (2002) 118 IR 259 Youry Dawidar v One Steel Wire Pty Ltd and another (2004) 139 IR 246

APPLICANT (RESPONDENT ON MOTION) Mr D Patch of counsel Solicitor: Mr A Barwick Employment Lawyers

LEGAL REPRESENTATIVES: FIRST RESPONDENT No Appearance

SECOND RESPONDENT (APPLICANT ON MOTION) Mr F Austin of counsel Solicitor: Ms W Ahmed ButtarCaldwell & Co

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

ROBERT DOMANKO v CHLOER PTY LIMITED (IN LIQUIDATION) FORMERLY BUSINESS CATALYST INTERNATIONAL PTY LIMITED AND ANOR

Application under section 106 of Industrial Relations Act 1996

1 Robert Domanko has filed a summons under s 106 of the Industrial Relations Act 1996 in which he seeks relief in relation to a contract of employment between himself and Chloer Pty Limited (In Liquidation), formerly Business Catalyst International Pty Limited ("first respondent"). Zia Qureshi, the second respondent, was the managing director of the first respondent and a shareholder in that company with an equitable and proprietary interest. 2 The second respondent, by notice of motion, seeks orders that Mr Domanko's proceedings be dismissed as against him or, in the alternative, that the proceedings be stayed. There was no appearance for the first respondent, which is in liquidation. This judgment deals with the second respondent's motion. The Summons for Relief

3 The applicant's summons for relief made the following claims: 1 A declaration that the contract between the Applicant and the First Respondent (consisting of a contract of employment), whereby the Applicant performed work in an industry, was unfair, harsh, unconscionable or against the public interest. 2 An Order declaring void, in whole or in part, from the date of commencement or some later date, the contract between the Applicant and the First Respondent, save for remuneration paid or payable by the First Respondent to the Applicant. 3 In addition to or in the alternative to (2), Orders varying the contract between the Applicant and the First Respondent to provide for the following express terms:- (a) In the event that the employer (that is, the First Respondent) terminates the employment of the employee (that is, the Applicant) for any reason other than misconduct, the employer shall give the Applicant six months' notice or pay the Applicant compensation in lieu of notice equivalent to the value of six months' total remuneration, to be based upon the new pay structure promised to the Applicant to take effect 1 August 2003. (b) The employer is to implement the new pay structure promised to the Applicant with effect from 1 August 2003. (c) The employer will, upon termination of the employee's employment, redeem the employee's units in the Employee Participation Scheme for at least market value, but in any event no less than their issue value of $1,00 per share. (d) The employer is to pay the employee an annual performance bonus in line with the representations made by the employer to the employee from time to time, including during the interview and hiring process. 4 A declaration that the First and Second Respondents are jointly and severally liable with respect to this action. 5 An Order that the Respondents pay the Applicant a sum of money in connection with the contract so voided or varied pursuant to Section 106 (5) of the Industrial Relations Act 1996 as is considered just by the Commission in the circumstances of the case. 6 Interest on any sums so ordered at 5 above. 7 The Respondents to pay the Applicant's legal costs. 4 The applicant's summary of the matters of fact were set out in Part B of the summons as follows: 1 The First Respondent is a trading corporation providing management consultancy services in New South Wales, and is capable of being sued by its said name and style. 2 At all material times, the Second Respondent has been a Director and Shareholder of the First Respondent, with a proprietary and equitable interest in the First Respondent. The Second Respondent has also at all material times been the Managing Director of the First Respondent. 3 In July 2002, following an approach made by the First Respondent to the Applicant, the Applicant accepted an offer of employment with the First Respondent. The Applicant then commenced duties on 29 July 2002 as a Managing Consultant employed by the First Respondent. Prior to commencement of employment, the Applicant was furnished with and executed a written contract of employment described as a Deed. The Applicant's starting remuneration was a base remuneration package of $130,000.00 per annum inclusive of statutory superannuation. The Deed also made provision for a discretionary performance bonus payable at the sole discretion of the Chief Executive and Chairman, and based upon contribution made by the Applicant and practice profitability. The said Deed had provision for the Second Respondent to execute the Deed on behalf of the First Respondent however the Applicant was not subsequently furnished with a copy of the Deed as executed by or on behalf of the Respondents. 4 During the interview and hiring process in early July 2002, officers or employees of the First Respondent, namely Mr Gareth Eade and Linda Grey, made the following representations to the Applicant concerning the respective position of employment: Particulars (a) The First Respondent advised the Applicant that there was the capacity to earn significant bonuses should billable targets be met, and that the bonuses would be in the order of 50% to 60% of base salary. (b) That in the event that the Applicant was awarded bonuses for achieving billable targets, that he could expect that his total remuneration would equate to approximately $180,000.00 per annum. (c) The First Respondent represented to the Applicant that they had more than enough work available for him and that upon commencement of employment, he would be immediately allocated an assignment. (d) The First Respondent represented to the Applicant that as part of his duties, he would be required to support the business development of the First Respondent, but that he would not be responsible or accountable for business development. (e) The First Respondent represented to the Applicant that it has significant intellectual property in the areas in which the Applicant would be involved.

5 Upon commencing duties on 29 July 2002, and contrary to the representations made by the First Respondent to the Applicant, the First Respondent had no immediate assignments for allocation to the Applicant. The Applicant was required to perform business development work with limited support from the First Respondent. After around five weeks, the Applicant was successful in winning a short term assignment with Energy Australia. However, the First Respondent charged the Applicant's work out to Energy Australia at a rate which did not permit the Applicant to meet billable targets. 6 In late November 2002, the First Respondent called the Applicant to an urgent meeting, at which time the First Respondent advised the Applicant that the First Respondent was experiencing financial difficulties and had no option other than to reduce the salaries or staff, and that accordingly, the First Respondent had determined that the staff should take a 30% reduction in salary for a three month period. The First Respondent advised the Applicant that he would be required to sign a pre prepared letter accepting the new terms prior to leaving the meeting, however the Applicant refused to do so. Subsequently, the First Respondent made repeated requests to the Applicant in the ensuing several weeks to sign the letter accepting the terms, which the Applicant ultimately did out of concern that his employment position would otherwise be in jeopardy. 7 Following the meeting in late November 2002, the First Respondent did reduce the Applicant's salary by 30% for a three month period, which resulted in a loss of salary and superannuation entitlements of $8,308.00 gross. 8 In the period leading up to July 2003, the Applicant worked diligently for the First Respondent, being fully billable for the First Respondent and also being successful in obtaining new business for the First Respondent. 9 In early July 2003, Mr Gareth Eade on behalf of the First Respondent advised the Applicant that a new pay structure would be implemented with effect from 1 August 2003. Mr Eade advised the Applicant that the new pay structure was a more incentive based pay structure where more billable hours would result in greater remuneration. Mr Eade further advised the Applicant that he ought not to be concerned as the Applicant was fully billable and that he would therefore benefit from the new pay structure. Mr Eade further advised the Applicant that the incentive pay package was configured in such a manner as to remunerate the Applicant in the vicinity of $150,000.00 per annum in the event that the billable hours target was achieved. Mr Eade further advised the Applicant that if the Applicant brought in new business for the First Respondent, that he would be rewarded by the payment of a discretionary bonus to be determined at a later stage. Mr Eade further advised the Applicant that a new contract of employment would be forthcoming and not to be worried about it. Mr Eade also advised the Applicant that the new pay structure had already been implemented for some other staff. 10 On or about 10 July 2003, the First Respondent wrote a letter to the Applicant acknowledging the Applicant's contribution to the First Respondent and advising him that he was being allocated 20,000 units in its "Employee Participation Scheme". The Applicant was not otherwise provided with any further information at any stage by the First Respondent concerning the allocation of the 20,000 units. 11 In or about September 2003, the First Respondent paid for the Applicant and his wife to attend an all expenses paid meal at the Level 41 restaurant, Chifley Square. 12 From early November 2002 and up until the middle of April 2003, the Applicant worked on a Melbourne based assignment. During this period, the Applicant had less than five non billable days. Following the completion of this assignment, the Applicant took two weeks of annual leave at the request of the First Respondent. Upon completing his period of annual leave, the Applicant then worked up until 25 May 2004 on business development. 13 On Tuesday 25 May 2004, Mr Peter Goldstein of the First Respondent approached the Applicant and advised him that due to the fact that there was no upcoming assignments for the Applicant, that the Applicant's services were no longer required by the First Respondent effective forthwith. The First Respondent advised the Applicant that it had determined to pay the Applicant four weeks pay in lieu of notice. Mr Goldstein's advice to the Applicant concerning the termination of his services was the first and only notice or indication received by the Applicant at any stage concerning the termination or possible termination of his employment. 14 At no stage during the term of the Applicant's employment did the First Respondent determine a bonus payment or pay the Applicant a bonus payment, notwithstanding the fact that the Applicant was fully billable for the period in which he worked. 15 Following termination of employment, the First Respondent did not seek to redeem the 20,000 units allocated to the Applicant in July 2003, or otherwise pay the Applicant any consideration for same. 16 Notwithstanding the representations made by the First Respondent to the Applicant concerning the implementation of a new pay structure to take effect 1 August 2003, the First Respondent failed to implement the promised new pay structure to the Applicant. 5 The summons for relief identified the matters of law as follows: 1 The contract between the Applicant and the First Respondent was an unfair contract as defined by sections 105 and 106 of the Industrial Relations Act 1996. Particulars (a) The contract was unfair, harsh, unconscionable or against the public interest in that it failed to require the First Respondent to give the Applicant reasonable notice to terminate the contract of employment in the event of the Applicant's position of employment being made redundant.

(b) The contract was unfair, harsh, unconscionable or against the public interest in that it made no provision for the First Respondent to pay the Applicant a severance payment in the event of the Applicant's employment being made redundant commensurate with the Applicant's length of service.

(c) The contract was unfair, harsh, unconscionable or against the public interest as a consequence of the First Respondent unfairly using its dominant bargaining position to the detriment of the Applicant by reducing the Applicant's salary by 30% for a three month period.

(d) The contract was unfair, harsh, unconscionable and against the public interest as a consequence of the First Respondent failing to make good on the representations it made to the Applicant during the interview and hiring process concerning the immediate availability of assignments, the terms of incentive component of the Applicant's remuneration, and the likely total remuneration the Applicant could expect to receive should he achieve billable targets.

(e) The contract was unfair, harsh, unconscionable or against the public interest as a consequence of the First Respondent failing to implement its promised new pay structure with effect from 1 August 2003.

(f) The contract was unfair, harsh, unconscionable or against the public interest as a consequence of the First Respondent allocating share units in the First Respondent to the Applicant without disclosing the terms of operations of the Employees Participation Scheme.

(g) The contract was unfair, harsh, unconscionable or against the public interest as a consequence of the First Respondent allocating share units to the Applicant in the First Respondent in lieu of paying the Applicant performance bonuses.

(h) The contract was unfair, harsh, unconscionable or against the public interest as a consequence of the First Respondent failing to redeem the allocated share units from the Applicant upon termination. (i) The contract was unfair, harsh, unconscionable or against the public interest as a consequence of the First Respondent failing to consult with the Applicant and consider him for the payment of a performance bonus. 2. At all material times, the Second Respondent was culpable in the conduct of the First Respondent. Particulars (a) At all material times, the Second Respondent set the terms of the contract between the Applicant and the First Respondent. (b) At all material times, the Second Respondent determined the conduct of the First Respondent, including in relation to its dealings with the Applicant. (c) The Second Respondent, as majority shareholder of the First Respondent, gained an unfair pecuniary benefit, both directly and indirectly, as a consequence of the unfair terms of and any unfair variations to the contract between the Applicant and the First Respondent.

6 The second respondent submitted that the proceedings did not disclose a cause of action grounding jurisdiction under s 106 to make an order against him to pay money. It was submitted, firstly, that the pleadings did not disclose the factual basis upon which a finding that the contract of employment was unfair could rest and/or in the case of the units in the trust, that the variation sought was possible. Secondly, that the material facts pleaded and the particulars provided by the applicant could not give rise to a finding that the second respondent had a "real connection" to the alleged unfairness. General observations 7 Before going to the specific deficiencies in the pleadings identified by the second respondent, there are a number of general observations to be made. Firstly, the Industrial Relations Commission Rules 1996 relevantly provide: 18A New procedure under section 106 (Unfair contracts) (1) An application to the Commission to exercise the powers conferred on it by section 106 must be in Form 12A and must: (a) specify in summary the matters of fact and law which form the basis of the application, but not the evidence by which those facts are to be proved, and (b) contain sufficient information to allow the Commission to carry out its duty to conciliate under section 109 by a succinct summary. ... 57 General (1) A party filing any process must give the necessary particulars of any claim or other matter raised by that party in such process. ... 63 Manner of giving particulars Where any of Rules 57 to 62 require particulars to be given, the particulars must be set out in the process or in a separate document referred to in the process and that document must be filed and served with the process. 64 Order for particulars (1) A tribunal may, on terms, order a party to file and serve on any other party: (a) further particulars of any claim or other matter stated in any process, or in any affidavit filed by that party, or (b) a statement of the nature of the case on which the party relies, or (c) where the party claims damages, particulars of those damages. (2) Without limiting the generality of subrule (1), where a party alleges as a fact that a person had knowledge or notice of some fact, matter or thing, the tribunal may, on terms, order that party to file and serve on any other party: (a) where knowledge is alleged, particulars of the facts on which the party relies, and (b) where notice is alleged, particulars of that notice. 8 Secondly, the Commission in Court Session is not a court of strict pleading. In Burgess and Ors v Mount Thorley Operations Pty Ltd (2003) 132 IR 400 the Full Bench stated: 90 In Gough & Gilmour Holdings Pty Ltd and ors v Caterpillar of Australia Ltd (No.13) [2003] NSWIRComm 26, after referring to s 170 of the Industrial Relations Act and rr 18A, 57 and 148 of the Industrial Relations Commission Rules 1996 and also to a number of cases including: Banque Commerciale SA In Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 293 per Dawson J; Klein, PMG & Ors v Adler [1996] NSWIRComm 184; Robert Rolles and Others v Donald Scott Surgicals Pty Ltd and Anor (Unreported, Fisher P, Cahill VP, Bauer J, 19 February 1988); Munro v Chubb Security Holdings Australia Ltd & Ors [2000] NSWIRComm 215, Boland J concluded at pars [25] and [26] that: 25 It is clear from the foregoing that pleadings are not an end in themselves. Certainly, in so far as proceedings under s 106 are concerned, a party is not strictly limited to what it has put in its summons for relief provided that the respondent is not prejudiced or put at a disadvantage by the introduction of some new issue or claim that may have arisen in the course of proceedings. If that occurs it is a matter for the court to consider whether it will amend the pleadings "in such manner as the tribunal considers to be necessary in the interests of justice."

26 The function of pleadings, however, is more than merely stating the overall ambit of the dispute between the parties. A respondent is entitled to know with certainty the nature and extent of the claims being made against it and the Court would not proceed to vary a contract without first ensuring the respondent is fully aware of the claims and has been given the opportunity of addressing those claims. Where that is not the case the Court will not countenance the claims: see Vision Publishing Pty Limited v PK Lane Holdings Pty Ltd (1998) 84 IR 277; Bourke Air Charter v Easton (2001) 109 IR 443; Pilgrim v Wendy's Supa Sundaes and Ors [2002] NSWIRC 308.

91 We generally agree with his Honour's conclusions...

9 It is important that a summons for relief sets out in summary form the material facts relied upon to support the claim that is made and that the information in the summons puts the respondent in a position to know the nature and extent of the claims being made against it. For instance, it would not be a sufficient pleading to claim that payments made to an applicant under a contract made the contract unfair unless the pleadings revealed why this was so. 10 Thirdly, however, as Schmidt J put it so succinctly in McCausland v Surfing Hardware International Holdings Pty Limited & Ors [2005] NSWIRComm 334 at [7]: It must immediately be observed, as has often been noted in authorities, that this is not a Court of strict pleading. It follows that the claims to which objection is taken, must be understood in the context of the claims otherwise made in the summons. On this approach, the claims made, for example, in paragraphs 1 and 24 of the amended summons, cannot be overlooked, when the claims made in paragraphs 25 to 28 are sought to be understood. Nor can the matters of fact and law said to support those claims, be read in isolation from each other and assigned, arbitrarily to one claim or another. The summons must be read as a whole. 11 Fourthly, a summons for relief will be struck out or the proceedings dismissed on the grounds that the claim does not disclose a reasonable cause of action only in plain and obvious cases. As the Chief Justice (Barwick CJ) stated in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, at 129: The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. . . . . It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".

At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance". Notice and Severance Pay

12 That brings me to the second respondent's specific complaints about the applicant's pleadings. It was submitted in relation to the claim for notice and severance pay that the summons failed to plead any material facts that would give rise to a finding of unfairness. It will be recalled that in relation to notice and severance pay the applicant asserted in the summons: (a) The contract was unfair, harsh, unconscionable or against the public interest in that it failed to require the First Respondent to give the Applicant reasonable notice to terminate the contract of employment in the event of the Applicant's position of employment being made redundant.

(b) The contract was unfair, harsh, unconscionable or against the public interest in that it made no provision for the First Respondent to pay the Applicant a severance payment in the event of the Applicant's employment being made redundant commensurate with the Applicant's length of service. 13 The second respondent's contention appears to be that because the applicant did not plead why the notice was not reasonable so as to make the contract unfair and why the absence of a provision for severance pay made the contract unfair, there was no factual basis to support a finding of unfairness. For instance, the second respondent submitted there was no allegation that the first respondent used its dominant bargaining position to the applicant's detriment in not providing for severance pay or reasonable notice in the contract. 14 Even reading the summons as a whole and discounting the fact that some of the matters pleaded under "Matters of Law" are really matters of fact, I consider the second respondent has a point in that he is confronted with a claim that the notice in the contract was asserted to be not reasonable and the contract was unfair because it did not provide for severance pay but there are no facts pleaded as to why this was alleged to be so. However, that does not provide a basis for dismissing the proceedings. The Court has the power pursuant to s 170 of the Act to make any amendments to the proceedings that it considers to be necessary in the interests of justice and the amendments may be made at any time on such terms as the Commission thinks fit. Subject to what I say later about the summons, the appropriate and usual course would be to provide the applicant with the opportunity to amend in light of the Court's observations regarding the deficiencies in the summons. Salary Reduction

15 The next objection by the second respondent was that in relation to the claim the salary reduction made the contract unfair, no such finding was reasonably open on the facts pleaded. What the applicant had pleaded was: The contract was unfair, harsh, unconscionable or against the public interest as a consequence of the First Respondent unfairly using its dominant bargaining position to the detriment of the Applicant by reducing the Applicant's salary by 30% for a three month period. 16 I am satisfied the applicant has provided sufficient facts to ground his claim to the extent that it was asserted the first respondent used its dominant bargaining position in reducing the applicant's salary. 17 The third objection taken by the second respondent was in relation to the assertion that: Representations regarding incentive payments The contract was unfair, harsh, unconscionable and against the public interest as a consequence of the First Respondent failing to make good on the representations it made to the Applicant during the interview and hiring process concerning the immediate availability of assignments, the terms of incentive component of the Applicant's remuneration, and the likely total remuneration the Applicant could expect to receive should he achieve billable targets. 18 The particulars of the representations referred to by the applicant were set out earlier in the summons. Having read the summons as a whole, in particular, paragraphs B4 and B9, I am satisfied the pleadings, whilst not replete with information, are sufficient to disclose a cause of action. 19 The fourth objection was in relation to the assertion in the summons that: Pay Structure The contract was unfair, harsh, unconscionable or against the public interest as a consequence of the First Respondent failing to implement its promised new pay structure with effect from 1 August 2003. 20 At paragraph B9 it was asserted that: In early July 2003, Mr Gareth Eade on behalf of the First Respondent advised the Applicant that a new pay structure would be implemented with effect from 1 August 2003. Mr Eade advised the Applicant that the new pay structure was a more incentive based pay structure where more billable hours would result in greater remuneration. Mr Eade further advised the Applicant that he ought not to be concerned as the Applicant was fully billable and that he would therefore benefit from the new pay structure. Mr Eade further advised the Applicant that the incentive pay package was configured in such a manner as to remunerate the Applicant in the vicinity of $150,000.00 per annum in the event that the billable hours target was achieved. Mr Eade further advised the Applicant that if the Applicant brought in new business for the First Respondent, that he would be rewarded by the payment of a discretionary bonus to be determined at a later stage. Mr Eade further advised the Applicant that a new contract of employment would be forthcoming and not to be worried about it. Mr Eade also advised the Applicant that the new pay structure had already been implemented for some other staff. 21 I agree with the second respondent that the pleading is deficient because it is not apparent that the alleged promise to implement a new pay structure had anything to do with the impugned contract and no related condition or collateral arrangement was pleaded. In other words, there does not appear to be any connection pleaded between the alleged misrepresentation regarding a new pay structure and the impugned contract. This pleading does not disclose a reasonable cause of action. Share Units 22 The second respondent's fifth objection related to the share participation scheme. The pleadings under the heading "Matters of Law" deal with the allocation of share units in "The BCI Employee Participation Trust". At paragraph B10 it was asserted: On or about 10 July 2003, the First Respondent wrote a letter to the Applicant acknowledging the Applicant's contribution to the First Respondent and advising him that he was being allocated 20,000 units in its "Employee Participation Scheme". The Applicant was not otherwise provided with any further information at any stage by the First Respondent concerning the allocation of the 20,000 units. 23 Again, there is no indication in the pleadings of any connection between the impugned contract and the promise of an allocation of share units and no related condition or collateral arrangement is pleaded. Moreover, I note that it is not even pleaded that the applicant accepted an offer of share units in lieu of being paid performance bonuses. This pleading does not disclose a reasonable cause of action. Discretionary Bonus

24 The sixth objection related to the discretionary bonus pleadings. The applicant pleaded: The contract was unfair, harsh, unconscionable or against the public interest as a consequence of the First Respondent failing to consult with the Applicant and consider him for the payment of a performance bonus. 25 I consider a reasonable cause of action is disclosed in relation to the bonus, but only just. At B8 and B14 the applicant asserted he was "fully billable" although he does not address the question of the exercise of the chief executive discretion to pay a bonus or other matters such as profitability which, according to the contract, is to be a consideration in the payment of bonuses. Second respondent's connection with contract 26 The second respondent's seventh objection was that the applicant in his summons had failed to make the necessary connection to the second respondent and the making, variation or avoidance of the contract. That is, the applicant had not disclosed a cause of action against the second respondent because the summons does not indicate how the second respondent was culpably associated with the making or operation of the impugned contract: Brown v Rezitis (1970) 127 CLR 157. 27 It was asserted in the summons that the second respondent was: (1) A director and shareholder of the first respondent, with a proprietary and equitable interest in the first respondent. (2) The second respondent was at all material times the managing director of the first respondent. (3) The written contract of employment made provision for a discretionary performance bonus payable at the sole discretion of the Chief Executive and Chairman. (4) At all material times, the second respondent was culpable in the conduct of the first respondent in that: the second respondent set the terms of the contract between the applicant and the first respondent; the second respondent determined the conduct of the first respondent, including in relation to its dealings with the applicant; and, the second respondent, as majority shareholder of the first respondent, gained an unfair pecuniary benefit, both directly and indirectly, as a consequence of the unfair terms of and any unfair variations to the contract between the applicant and the first respondent. 28 The pleadings in relation to the involvement of the second respondent and how he can be said to have a real connection with the impugned contract in the Brown v Rezitis sense could not be regarded as fulsome. But I consider they disclose a reasonable cause of action and do not provide the basis for dismissing the proceedings. The Commission's Rules do not require the pleadings to disclose evidence of the facts to be proved, merely the facts relied upon. The facts relied upon in these proceedings include that the second respondent set the terms of the contract between the applicant and the first respondent; the second respondent determined the conduct of the first respondent including in relation to its dealings with the applicant; and, that the second respondent gained an unfair pecuniary benefit as a consequence of the unfair contract. Leave to proceed

29 The final matter contended by the second respondent concerned the operation of s 500(2) of the Corporations Act 2001 (Cth), which provides: (2) After the passing of the resolution for voluntary winding up, no action or other civil proceeding is to be proceeded with or commenced against the company except by leave of the Court and subject to such terms as the Court imposes. 30 It was common ground that in respect of the first respondent a resolution had been passed for voluntary winding up. The second respondent, consequently, submitted that leave is required from the Supreme Court to continue the proceedings against the first respondent. More particularly, however, it was submitted that unless leave is granted no orders could be made against the second respondent under s 106. This was so, it was submitted, because: (1) The impugned contract was claimed to be between the applicant and the first respondent; (2) Any order declaring the contract wholly or partly void or any order varying the contract could not be made because of the provisions of s 500(2) of the Corporations Act; (3) If no declaration or order could be made in respect of the contract between the first respondent and the applicant, no money order under s 106(5) could be made against the second respondent. 31 The second respondent placed reliance on Doran Constructions Pty Ltd (In Liquidation) v Beresfield Aluminium Pty Ltd (2002) 52 NSWLR 416 for the proposition that the applicant could proceed no further against the first respondent without the applicant first gaining leave from the Supreme Court. In that case Santow JA stated at [3]-[8]: 3 While I agree with what is said by Ipp AJA that the Appellant should not be allowed to raise the s500(2) issue having regard to the way in which the Appellant conducted proceedings in the court below, where the issue of s500(2) was not raised before Brownie AJ, I would wish to add just this. 4 The question which s500(2) would have posed was whether the giving by the Arbitrator of the notice of the interim award would amount to any "action or other civil proceeding" being "proceeded with" against the company being the Appellant in liquidation. 5 To answer this question, it is necessary to characterise the action of the Arbitrator in giving notice of the interim award and its legal consequences in relation to any civil proceedings. It may be accepted that an arbitration proceeding is included within a "civil proceeding"; see Re Vassal Pty Ltd (in liq) (1984) 2 ACLC 53; Mowbray College v Exhibition Design and Construction Pty Ltd (in liq) (1987) 5 ACLC 478. 6 However excluded therefrom are (i) lodging an appeal ( Humber & Co v John Griffiths Cycle Co (1901) LT 141 (HL)), (ii) applying for security for costs against the company ( Pasdale Pty Limited v Concrete Constructions (1996) 14 ACLC 554; BPM Pty Ltd v HPM Pty Ltd (1996) 14 ACLC 857); or (iii) "defensive proceedings" against the company in liquidation; Skinner v Jeogla Pty Ltd [2001] NSWCA 15 at paras [13] and [15]. 7 "Proceeding" is itself an expression taking its meaning from its context. In the present context it is apt to include "a step in an action, cause or matter"; see "McPherson, The Law of Company Liquidation" (LBC, 1999) by Andrew Keay at 246. While, conceptually, an arbitrator as agent for the parties may take a step in the action, it would not be a step so characterised if it did not advance that action from the point of view of either of the parties. A mere anterior, preliminary, step by the Arbitrator, though prerequisite to a step by either party, does not meet that description. 8 To demonstrate this, it is necessary to analyse what the Arbitrator did and its legal consequence. The Arbitrator gave notice of an interim award by the Arbitrator. 32 At [13] Santow JA stated: 13 To sum up. (1) Giving notice of his award by the Arbitrator is not a step in the proceedings, being an anterior preliminary step prerequisite to either party seeking to challenge the Arbitrator's award but not of itself advancing either party's case.

(a) neutral, being preparatory to and prerequisite for, a defensive step (challenging the Arbitrator's award); or (b) it is a defensive step itself, in setting time running for any challenge, but taking its defensive character from the step (challenge) that may follow.

Either way, it falls outside s500(2) of the Corporations Act . 33 In WorkCover Authority of New South Wales (Inspector Maltby) v Josef & Sons Contracting Pty Limited (In liquidation) & Ors (2002) 118 IR 259, Schmidt J considered the effect of s 500(2) but it was in the context of whether leave was required in relation to criminal proceedings under the Occupational Health and Safety Act 1983. Her Honour found leave was not required in such proceedings. 34 However, as Schmidt J noted in Josef & Sons at [12] 12 The language of s500(2) raises quite a difficult question of construction. The phrase 'no action or other civil proceeding', on Professor Keay's approach, 'obviously means that leave is not required for criminal proceedings' (at p9). That, with respect, is not so obvious. The word 'action', like the word 'proceeding', after all is a general word capable of comprehending both civil and criminal actions. See Bradlaugh v Clarke 1883 8 App Cas. 354 at 361 and Re Carter Smith; Ex parte Taxation Commissioners (1908) 8 SR (NSW) 246 at 248 where Street J said: 'Whatever the popular signification of the word 'action' may be, it is clear, as was pointed out by Bramwell and Lush LJJ, in Clarke v Bradlaugh (1881) 7 QBD 38 at 50 and 57 and by the Earl of Selborne LC and Lord Blackburn in the same case on appeal to the House of Lords that in its proper legal sense it is a generic term or nomen generale, and includes every sort of legal proceeding . When used by the legislature it must … be construed according to its true legal meaning unless it is apparent upon the fact of the Act in which it is used that it is intended to bear a more restricted meaning (my emphasis).'

And further at [15]: 15 Statutory construction requires that words which are not defined, be given their ordinary and natural meaning (see Cody v JH Nelson Pty Ltd (1947) 74 CLR 629 at 647 per Dixon J), unless they have a particular legal meaning (see Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1987) 72 ALR 321). It may immediately be observed that it is difficult to see what reference to both 'actions' and ' proceedings' in s500(2) adds to the provision there made. The word 'action' is, for instance, defined in Butterworths Concise Australian Legal Dictionary , Second Edition, as ' any proceeding in a court' . In the Limitation Act 1969 (NSW), 'action' is defined in s11(1) as 'includes any proceedings in a court ' (my emphasis). 35 I do not consider there can be any doubt that these proceedings may be regarded as "an action or other civil proceeding" for the purpose of s 500(2) of the Corporations Act and that the applicant requires the leave of the Supreme Court to proceed with his claim. Further, I accept the second respondent's submission that unless such leave is granted, no orders can be made in connection with the impugned contract. An order or declaration made under s 106(1) of the Act would undoubtedly be a step in an "action, cause or matter" that advanced the action. 36 Where does that leave the second respondent? It would seem to be somewhat pointless in the matter going to trial in circumstances where no orders could be made against the second respondent for the reasons submitted by him. That is, in the absence of leave being granted to proceed against the first respondent no order could be made in respect of the impugned contract and, consequently, no orders could be made against the second respondent under s 106(5). 37 The question arises, however, whether the matter should proceed to conciliation and the Commission should endeavour to settle the matter as between the applicant and the second respondent pursuant to the provisions of s 109. I can see no bar to the matter proceeding to conciliation in respect of the second respondent. Conciliation involving the applicant and second respondent would not be a step in the proceedings against the first respondent. However, if the applicant intends to proceed against the second respondent on the basis of an amended summons, it seems to me that the amendments should be made before the matter is listed for conciliation. 38 What I propose to do in relation to the summons is to give leave to amend it having regard to what is said in this judgment and in any other respect the applicant considers appropriate, short of any amendment amounting to a new claim entirely: See s 108B of the Act; Crowe v UCS Developments Pty Limited (2003)130 IR 266; Youry Dawidar v One Steel Wire Pty Ltd and another (2004)139 IR 246. Of course, unless the applicant obtains leave pursuant to s 500(2) of the Corporations Act to proceed against the first respondent, any amendment affecting the first respondent would seem to be futile. Orders

39 The Court makes the following orders: 1 The applicant is given leave to file and serve an amended summons for relief. 2 This matter is listed for directions at 9.45 am on Friday 11 November 2005 at which time the applicant will advise the Court of its intentions in relation to this matter including the question of leave under s 500(2) of the Corporations Act , the filing and serving of an amended claim and conciliation in relation to the second respondent. 3 Costs are reserved. ______________________________

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.