Field v Jenolan Caves Trust and Others

LEGISLATION CITED: Industrial Relations Act 1996

Batterham v QSR Limited (2006) 225 CLR 237 Field & Anor v Jenolan Caves Reserve Trust and Ors [2007] NSWIRComm 131 Field v Jenolan Caves Reserve Trust [2007] NSWIRComm 242 Fish & Another v Solution 6 Holdings Limited (2006) 225 CLR 180 CASES CITED: Kennett & Another v Mayrana Pty Limited & Ors (No 4) [2006] NSWIRComm 357 Caterpillar of Australia Limited v Gough & Gilmour Holdings Limited [2008] NSWIRComm 3 Nagle (t/a W.D. & J.L. Nagle & Sons) v Tilburg (1993) 51 IR 8 Old UGC Inc and Others v Industrial Relations Commission of NSW and Another (2006) 225 CLR 274 Wirraway (NSW) Pty Limited v Ultra Tune Australia Pty Limited (2006) 156 IR 367

APPLICANT Mr J W Shaw, QC with Mr A Searle of counsel Solicitor: The People's Solicitors Pty Ltd LEGAL REPRESENTATIVES: RESPONDENT Mr R C Kenzie QC with Ms E Brus of counsel Solicitor: Ms M Rizzo Crown Solicitors Office

Application by Archer Field and Anor under s 106 of the Industrial Relations Act 1996

1 Archer Field and Celia Field ('the applicants') have sought relief under s 106 of the Industrial Relations Act 1996. The respondents named in the summons for relief were Jenolan Caves Reserve Trust, Tourism New South Wales, Director General of the Department of Environment and Conservation and the Crown in the Right of the State of New South Wales. The relief sought involved the payment to the applicants of a sum of about $46 million plus unspecified damages. 2 On 23 April 2007, the applicants considered it necessary to file a notice of motion seeking various orders, including an order to amend their summons for relief filed earlier and an order under s 108B of the Act for extension of the time for filing the amended summons. The motion by the appellants to extend time was expressed to be "to the extent necessary". In other words, the applicants' primary position was that they were within time in making their application for relief under s 106 of the Act, but if they were wrong in that regard then the Court should grant an extension of time pursuant to s 108B(3). On 27 April 2007 the applicants filed an amended summons for relief. 3 In Field & Anor v Jenolan Caves Reserve Trust and Ors [2007] NSWIRComm 131, Schmidt J declined the application to extend time. The applicants appealed. In Field v Jenolan Caves Reserve Trust [2007] NSWIRComm 242, the Full Bench of the Court granted leave to the applicants to appeal and set aside her Honour's decision and orders. In doing so, the Full Bench found that the applicants' application was within time. 4 In making orders, the Full Bench remitted the matter to a Member of the Court for hearing and determination and ordered the respondents to pay the costs of the applicants, both at first instance and on appeal. 5 On 11 October 2007, the matter was programmed so that the applicants were required to file their evidence and the respondents would then review their intention to file a notice of motion regarding the jurisdiction of the Court to hear the claim. The applicants filed their evidence on 27 November 2007. The respondents filed the notice of motion on 14 December 2007. An amended notice of motion was filed on 17 March 2008. The hearing of the motion was set down for 23 April 2008. The respondents filed their submissions in respect of the motion on 17 March 2008. The applicants filed their submissions on 15 April 2008. 6 Prior to the hearing of the motion, the first applicant, Mr Field, was involved in proceedings in the Supreme Court of New South Wales where he gave evidence about matters relating to the management, administration and operation of Jenolan Caves House and other business entities located on the Jenolan Caves site. This evidence, in the opinions of the respondents, was "in contrast with" content of the amended summons for relief filed by the applicants on 27 April 2007. 7 On 23 April 2008 I met with the parties in Chambers and was advised by senior counsel for the respondents about their opinions concerning inconsistencies between the evidence of Mr Field in the Supreme Court proceedings and the content of the amended summons. Consequently, the applicants took the opportunity to consider their amended summons and the respondents' motion was stood over by consent until 4 June 2008.

8 The respondents advised the applicants, by letter dated 24 April 2008, of those parts of the first applicant's evidence in the Supreme Court that appeared to be in conflict with the material filed before the Industrial Court. On 20 May 2008, the applicants filed a further amended summons. 9 On 4 June 2008, senior counsel for the respondents withdrew the notice of motion. The applicants contended that the notice of motion be dismissed with costs so that there was "an unequivocal issue estoppel". This decision deals with whether the motion should be dismissed with costs. SUBMISSIONS OF THE PARTIES

10 Given the applicants' costs application, on 4 June 2008 the respondents sought that the matter be stood over to allow them to make submissions on why costs should not be ordered in relation to their motion and that costs should be costs in the cause. It was contended for the respondents that the circumstances that led to the withdrawal of the motion were singularly unusual, that it would not be appropriate to order costs in relation to the motion and that costs should be dealt with at the final disposition of the proceedings. In the result, the question of costs was stood over until 17 June.

11 What made the withdrawal of the motion unusual, according to the respondents, was that the motion was filed in response to an amended summons filed by the applicants on 27 April 2007. It became apparent, said the respondents, following proceedings in the Supreme Court on 31 March, 1, 2, 3 and 7 April 2008, that evidence given by the first applicant was inconsistent with claims made in the applicants' amended summons for relief. According to the respondents, they took the proper step of advising the applicants of these inconsistencies and provided the applicants with an opportunity to consider their summons and to amend it if that was deemed the appropriate course. The applicants did, in fact, subsequently further amend the amended summons with a view to overcoming any inconsistencies. This caused the respondents to withdraw their motion. The respondents submitted they should not be liable for a costs order at this stage of proceedings for taking what they considered to be the proper course. 12 Mr Kenzie QC for the respondents submitted that although there had been some amendment of the applicants' summons, the proceedings remained in an unsatisfactory state. Whilst the summons had been further amended the affidavit material underpinning the applicants' amended summons filed on 27 April 2007 had remained unchanged. 13 For the applicants, Mr Shaw QC submitted, in effect, there was no material inconsistency between the applicants' pleadings and the evidence given by Mr Field in the Supreme Court. As it will be seen, one of the inconsistencies was that in the pleadings, Mr Field described himself in such a way as to leave the impression that he personally managed Jenolan Caves House and associated businesses. In the Supreme Court proceedings, Mr Field said this was not correct and that he was a director of Jenolan Caves Resort Pty Ltd ("JCR") and as such, had an overseeing role. Mr Shaw contended that whether Mr Field was a manager or director was inconsequential in determining the question of whether the pleaded contracts or arrangements were contracts or arrangements whereby work was performed. Mr Shaw contended, in effect, that there was no reason why, if the respondents' notice of motion (based as it was on the proposition that there was no contract or arrangement under which the applicants performed work) had any substance, the respondents could not have pressed their motion because it made no difference whether Mr Field was called a director or manager. Mr Shaw submitted the motion should be seen as a "conservative attempt" to delay the determination of the merits of the matter. That was, he said, quite inconsistent with modern conceptions of justice being quick and cheap; Mr Field was struggling through litigation that had been extended beyond reason.

14 Mr Shaw further submitted that: · both Schmidt J and the Full Bench had made costs orders in the proceedings on an interlocutory basis, thereby establishing a precedent for again doing so in respect of the respondents' motion;

· the notice of motion was, in any event, hopeless and should have been seen as hopeless at all material times;

· the points of law raised by the applicants in the proceedings should be heard and determined as a threshold matter. The points are, first, that the administrator was put in place before the relevant statute came into force and effect. Secondly, the relevant Minister should have dismissed all of the trustees prior to putting in an administrator. If this were to occur conciliation may be facilitated; and

· the respondents have engaged in a process of bifurcation of "so called" preliminary points to an extent that was unsatisfactory. The preliminary points were the s 108B challenge and the jurisdictional challenge. It was submitted the respondents' notice of motion concerning jurisdiction could have been dealt together with their contentions regarding s 108B in a cognate fashion, a process that would have led to the quick, cheap and expeditious disposition of all relevant points. 15 Mr Shaw submitted that given the foregoing considerations, the respondents' should be ordered to pay the applicants' costs of the motion. CONSIDERATION

16 The critical issues here are two-fold: (i) whether there were such material inconsistencies or contradictions between the pleadings and evidence filed in this Court by the applicants and the evidence given by Mr Field in the Supreme Court that the proper course for the respondents was to raise the inconsistencies with the applicants and the Court prior to the hearing of the motion; and (ii) whether by withdrawing their notice of motion the respondents are liable to pay the applicants' costs of the motion on the basis that such costs were thrown away. The applicants did submit that the Court should dismiss the summons thereby creating an issue estoppel. In the absence of any substantive submissions in that respect from either the applicants or the respondents, I do not propose to do so.

17 The respondents' notice of motion challenged the Court's jurisdiction to deal with the claim on the basis that none of the contracts or arrangements pleaded were contracts or arrangements whereby a person performed work in an industry within the meaning of s 106(1). As I have explained, the respondents contended that the material on which they based their challenge - the applicants' pleadings as set out in the amended summons of 27 April 2007 and the evidence filed in the proceedings - contrasted with the evidence given by Mr Field in the Supreme Court proceedings.

18 It may have been, given the adversarial nature of proceedings, the respondents could have raised the alleged contradictions in the course of the hearing of their motion - to the surprise of both the Court and the applicants. That would hardly have been proper, not only because one of the respondents is the Crown, which carries with it certain obligations to act as a model litigant, but also it would have left the Court in the position of being confronted, on the one hand, with pleadings and evidence (to be taken at its highest) asserting that the applicants fulfilled certain roles under the contracts or arrangements referred to in the amended summons and, on the other hand, evidence by the first applicant in other proceedings that was not in conformity with those assertions. That would have left the proceedings in a quite unsatisfactory state and, at the least, would probably have resulted in further delay, especially if the applicants sought, and were successful in obtaining, leave at that stage to further amend their summons.

Amended summons 19 I turn to the amended summons filed on 27 April 2007. There the applicants challenged the fairness of an "overall arrangement" and the fairness of three "collateral arrangements or related conditions". Paragraph A1 of the amended summons sought: An order declaring the overall arrangement between the first applicant and/or the second applicant and the respondents whereby the applicant performed work in an industry, specifically by administering and operating Jenolan Caves House and related businesses, was unfair, harsh or unconscionable or contrary to the public interest.

20 Paragraph A2 sought further, and in the alternative, an order declaring that: (a) the collateral arrangement or related condition constituted by the Jenolan Caves Reserve Plan of Management adopted on 11 April 1989;

(b) the collateral arrangement or related condition constituted by the lease over parcels of land situated at Jenolan Caves and including an existing structure known as Jenolan Caves House and other businesses at the site made on 29 June 1990; and (c) the collateral arrangement or related condition constituted by the Services Agreement made on 29 June 1990. were or are unfair, harsh or unconscionable or contrary to the public interest. 21 The Jenolan Caves Reserve Plan of Management was described at paragraphs B5 and B6 of the amended summons: 5. On or around 11 April 1989, the then Minister for Natural Resources, the Honourable Ian Causley MP, adopted a Plan of Management for the Jenolan Caves Reserve area pursuant to section 37U of the Crown Lands Consolidation Act 1913 (NSW) ("the Plan of Management"). Among other things, the Plan of Management: (a) Required that action be taken to control and eradicate weeds and other noxious vegetation or dangerous trees in the Reserve;

(b) Required that visitors use of the Reserve be managed within the limits of acceptable change and action be taken to maintain the high quality of the visitor experience;

(c) Required that traffic and parking be managed efficiently and that a long term transportation system be developed to facilitate access for visitors to the caves;

(d) Required that water taken from the Jenolan River or any other water source be of the highest possible quality. 6. The first respondent was required to carry out and give effect to the Plan of Management by section 114(2) of the Crown Lands Act 1989 (NSW). 22 The lease was described at paragraph B8 of the amended summons: 8. On 29 June 1990, the Tourism Commission of New South Wales entered a 99 year lease with Silkbard Pty Limited (a company within the Peppers Hotel Group) over parcels of land situated at Jenolan Caves and including an existing structure known as Jenolan Caves House and other commercial buildings at the site ("the Lease"). Among other thing, the Lease: (a) Required the lessee to undertake, effect and complete refurbishment works on the premises at its own cost and expense as approved by the lessor and any relevant authority;

(b) Permitted the lessee to use the premises for a licensed hotel and motel units and for the provision of recreation, hospitality, food and refreshments including the provision of a restaurant and kiosk, facilities for the sale of souvenirs and tour and hire facilities;

(c) Required the lessee to comply with the Plan of Management.

23 The Services Agreement was described at paragraph B9 of the amended summons: 9. Also on 29 June 1990, an agreement was made between the first respondent and Silkbard Pty Limited ("the Services Agreement") in which the first respondent agreed to supply services to the lessee. Among other things, the Services Agreement: (a) Required the first respondent to supply a maximum of 2800 litres of water per hour suitable for human consumption every 24 hours and provide and maintain such equipment as is necessary for the free flow, holding and conveyance of water for consumption;

(b) Required the first respondent to remove up to a maximum of 160,000 litres of sewerage and other liquid waste products every 24 hours and provide and maintain such equipment as is necessary for the free flow and removal of sewerage and other liquid waste products; and

(c) Required the first respondent supply emergency electricity during periods of failure of the normal sources of electrical power servicing the land and provide and maintain such equipment as is necessary for the free flow of emergency supplies of electricity. 24 At paragraphs B10 to B15 the amended summons described the applicants' involvement in Jenolan Caves House and associated businesses and their performance of work in relation thereto: 10. Between 1991 and 1994, the first applicant occupied the position of Group General Manager for the Peppers Hotel Group and was responsible for the operation of Jenolan Caves House as well as other properties owned and operated by the Peppers Hotel Group outside Sydney.

On or around 30 December 1994, the first applicant (through a company known as Rosecharm Pty Limited) purchased 100% of shares in the Caves House Unit Trust and all the shares in Silkbard Pty Limited (later renamed Jenolan Caves Resort Pty Limited). All the shares in Rosecharm Pty Limited were at all times owned by the first and second applicants and their three children.

Following a review of the first applicant's background and experience, the first respondent consented to the first applicant acquiring a controlling interest in Jenolan Caves Resort Pty Limited and personally becoming the operator of Jenolan Caves House and associated businesses.

From December 1994 until December 2005, the first applicant lived at Jenolan Caves House and performed work administering and operating Jenolan Caves House and associated businesses and carrying out restoration and other work on the site at least six full days per week. The second applicant worked approximately 20 hours per week assisting with the administration and operation of Jenolan Caves House and associated businesses.

From December 1994 until December 2005, the first and second applicants forewent receiving income in the expectation that they would benefit from the profits of the business over the term of the Lease and, during that period, received remuneration that was less than fair and reasonable for the work performed.

At the time the first applicant took over the operations of Jenolan Caves House in December 1994, the House was in a state of disrepair. In or around the middle of 1995, the first applicant met with members of the Board of the first respondent and a six-stage program to restore, improve and expand the Jenolan Caves House was agreed in line with proposal contained in the successful 1989 tender by the Peppers Hotel Group. 25 A Reply to the applicants' summons was filed on 11 May 2007. At paragraph 23 the Reply stated: [T]he First Respondent was required to ensure the Lessee i.e. Silkbard Pty Ltd which subsequently became Jenolan Caves Resort Pty Ltd, had the necessary expertise to manage Caves House. The Lessee was at all times able to engage whatever personnel it felt necessary to operate and manage the facilities. At no time was it a requirement of the First Respondent that the Applicant/s personally operate either Jenolan caves House or associated businesses. The First Respondent is aware that from 1994 to 2004, the Lessee entered into a number of management Agreements with other parties to manage many of the associated businesses eg., (a) Trails Bistro ("the bistro"); (b) the kiosk; (c) the Gift Shop "Things"; (d) Chisholm's Dining Room; (e) The Gatehouse and (f) the Jenolan Caves Guest house. The First Respondent was not a party to any of these agreements. 26 The applicants' Response to the Reply was filed on 21 May 2007. At paragraph 13 it was stated: As to paragraph 23, the first and/or second applicants deny these assertions, save that it is accepted that the management of certain associated businesses was delegated, in a way not detracting from the general obligations of the applicants.

27 The first applicant has filed a total of nine affidavits in the course of these proceedings: 15 February 2007 in support of his application; 15 February 2007 requesting expedition of proceedings; 1 March 2007 in support of notice of motion; 4 May 2007 and 21 May 2007 verifying the content of the first applicant's response to the respondents' reply; 21 May 2007 in reply to the affidavit of Alan Griffin; 21 May 2007 in response to the affidavit of Grant Billingham; 26 November 2007 further affidavit; and 20 May 2008 verifying the content of the further amended summons for relief. The second applicant has filed only 3 affidavits - 9 March 2007, 26 November 2007 and 20 May 2008. Applicants' evidence regarding the performance of work

28 The respondents extracted from the evidentiary material before this Court the position relevant to the applicants' performance of work. The extracts I consider relevant were as follows: (a) From 2 July 1990 to (at least) 1 March 2007, the first applicant was a director of Silkbard (later known as Jenolan Caves Resort Pty Limited or "JCR"): see affidavit of first applicant sworn 1 March 2007 at par 6. See also affidavit of first applicant sworn 4 May 2007 at par 11(a); (b) From 30 December 2004 (sic - 1994) to (at least) February 2004 (and possibly until 9 December 2004 (sic - 2005)), the first applicant was the managing director of Silkbard: see transcript of proceedings before Schmidt J, 24 May 2007 at T11.21 - T11.24;

(c) From 30 December 1994 to (at least) 1 March 2007, the second applicant was a director of Silkbard: see affidavit of second applicant sworn 9 March 2007 at pars 5 and 6; ...

(e) As at 12 December 2005, the Joint and Several Receivers and Managers of Silkbard regarded the first applicant as an employee of Silkbard: see affidavit of Billingham sworn 11 May 2007 at p 99;

(f) From 30 December 1994 to 9 December 2005, the first applicant managed the business of Silkbard: see affidavit of first applicant sworn 1 March 2007 at par 7;

(g) From 30 December 1994 to December 2005, the first applicant performed "managerial" work in relation to the upgrading of Jenolan Caves House: see affidavit of first applicant sworn 3 May 2007 at par 20;

(h) For an eleven-year period (not specified but presumably 30 December 1994 to 9 December 2005), the second applicant performed work assisting the refurbishment planning, the refurbishment work and the administration and operation of Jenolan Caves House and associated businesses: see affidavit of second applicant sworn 8 March 2007 at pars 5, 6 and 7;

(i) From 30 December 1994, the first applicant was, pursuant to the Deed of Consent, a guarantor of the obligations of Silkbard under the Lease: see affidavit of first applicant sworn 3 May 2007 at par 11(c). See also Deed of Consent, clause 4.1;

(j) From 30 December 1994, the first applicant regarded himself as having obtained consent for him to control the Lease and manage the Jenolan Caves House: see affidavit of first applicant sworn 1 March 2007 at par 4;

(k) The first applicant regarded himself as a party to the Lease: see affidavit of first applicant sworn 3 May 2007 at par 12;

(l) The first applicant was paid no remuneration for the "managerial" work he undertook in relation to the upgrading of the Jenolan Caves House: see affidavit of first applicant sworn 3 May 2007 at par 20. See also affidavit of first applicant sworn 1 March 2007 at par 7 and Amended Summons at par B14;

(m) The first applicant "spent" a considerable portion of his own assets upgrading the Jenolan Caves House: see affidavit of first applicant sworn 3 May 2007 at par 17. See also Amended Summons at par B16;

(n) The second applicant was paid no remuneration for her work: see affidavit of second applicant sworn 8 March 2007 at par 9;

(o) The second applicant loaned Silkbard $190,000 to allow the upgrading of the Jenolan Caves House: see affidavit of second applicant sworn 9 March 2007 at par 3. See also affidavit of first applicant sworn 3 May 2007 at par 17 and Amended Summons at par B17. Transcript of evidence in Supreme Court 29 Moving to the transcript of proceedings in the Supreme Court, I was provided by the respondents with extracts from the transcript of the proceedings for the following dates: 31 March 2008, 1,2, 3 and 7 April 2008. On those days Mr Field was subject to examination by his own counsel and then cross-examination. Mr Shaw for the applicants also provided extracts from the same transcript. Having studied the transcript extracts, the relevant points that emerge are as follows: (a) in his examination in chief Mr Field agreed that there were six entities or associated businesses on the Jenolan Caves site: Caves House (a guest house); The Gate House (backpacker accommodation); Mountain Lodge (an hotel); Trailers Bistro (a bistro); Things Jenolan (a souvenir and gift shop) and Chisholm's (a fine dining restaurant). In 1995, a management agreement was entered into between JCR and Harvey World Travel Investments (Number 1) Limited for Harvey to manage and operate Jenolan Caves House. Management agreements were also entered into in respect of the other five entities;

(b) Mr Field said he never managed any of the businesses referred to in (a); that he was "the manager of JCR that owned the property";

(c) Mr Field was asked some question about JHM Services Pty Ltd to whom the Harvey World Travel management agreements, or some of them, had been assigned after 1998 and in respect of which Mr Field apparently had a controlling interest through a company he owned. It was put to Mr Field that he acted as a "hands on manager" of the resort after 1998. Mr Field replied, "That's definitely not correct";

(d) Mr Field said after 1998 "There was an overseeing role by me as a director of JCR and an overseeing role as a director of JHM. I don't want to lead you to believe that the role of a director is that of a manager, it's not…";

(e) Mr Field has a document put to him that was filed by his lawyers in the Industrial Court. It appeared that Mr Field equivocated about a statement in his amended summons filed in the Industrial Court and indicated that it would be amended. The equivocation related to the statement in paragraph B13 of the amended summons that: From December 1994 until December 2005, the first applicant lived at Jenolan Caves House and performed work administering and operating Jenolan Caves House and associated businesses and carrying out restoration and other work on the site at least six full days per week. Mr Field indicated that he did not live for 11 years at Jenolan Caves House and only did so when he worked there and that he operated JCR and not Jenolan Caves House;

(f) Mr Field's attention was drawn to the first instance judgment of Schmidt J, where her Honour stated at [4]: Mr Field's case was that he was a working director of Jenolan Caves House Resort Pty Ltd ('JCHR'), the lessee, operator and manager of Jenolan Caves House. Mr Field said that her Honour's statement was not a correct reflection of his evidence; (g) it was put to Mr Field that he was the manager of Caves House throughout the period December 1994 until December 2005, to which Mr Field replied, "That's not correct." 30 The respondents submitted, as I have said, that the evidence of Mr Field in the Supreme Court proceedings, where he consistently disavowed any suggestion he had a hands on role in managing any of the businesses associated with the resort, contradicted statements in the amended summons to the effect that Mr Field became "the operator of Jenolan Caves House and associated businesses" and that: From December 1994 until December 2005, the first applicant lived at Jenolan Caves House and performed work administering and operating Jenolan Caves House and associated businesses and carrying out restoration and other work on the site at least six full days per week. The second applicant worked approximately 20 hours per week assisting with the administration and operation of Jenolan Caves House and associated businesses. Further amended summons 31 Consistent with what Mr Field indicated in the Supreme Court proceedings, the applicants amended the amended summons for relief. The amendments are identified by the words underlined: B12. Following a review of the first applicant's background and experience, the first respondent consented to the first applicant acquiring a controlling interest in Jenolan Caves Resort Pty Limited and personally becoming the operator and/or otherwise involved in the administration and maintenance of Jenolan Caves House and associated businesses.

B12A. The first and second applicants were not "the managers" of the Jenolan Caves House but were the Managing Director and Director of Jenolan Caves Resort Pty Ltd, and as such had operational/work/supervisory obligations in relation to that enterprise .

B12B. From time to time, the first and second applicants performed their work from offices in Sydney and at Jenolan Caves House .

B12C. Particulars of relevant work in the hotel/hospitality/ accommodation/tourism industry contemplated by the various contracts, leases, agreements (including ancillary/associated arrangements) that were the responsibilities of the first and/or second applicants were: to provide unified and coherent development of the Jenolan Caves property; to provide a complete guest house and day visitor tourism operation that meets the needs and demands of the market place; to provide and maintain services to the public; to reimburse the first respondent for the maintenance and provision of water, sewerage and emergency power .

B13. From December 1994 until December 2005, the first applicant lived for a substantial period of time at Jenolan Caves House and performed work administering and operating Jenolan Caves House and associated businesses and Resort Pty Ltd. This work included duties of a supervisory/managerial kind, even though the first applicant was not "the manager" as such at Jenolan Caves House and the associated businesses and included carrying out restoration and other work on the site at least six full days per week from time to time . During this same period , the second applicant also lived at Jenolan Caves from time to time and worked approximately 20 - 30 hours per week as Director until 2004 and until 2005 assisting with the administration and operation of Jenolan Caves House Resort and the associated businesses.

32 There were other amendments to the amended summons but these would not seem to be relevant for present purposes. However, apart from two verifying affidavits accompanying the further amended summons, there was no other evidence filed relating to the changes to the pleadings. Further, Mr Field's evidence in the Supreme Court indicates the existence of a number of management agreements under which the businesses associated with the resort were managed and operated by other entities. The existence of such agreements was identified by the respondents in their Reply to paragraph B12 of the amended summons filed on 27 April 2007. However, in their Response, the applicants denied that any such agreements were in place (see paragraph 13 of Response to Reply), asserting that certain management functions were "delegated". This was inconsistent with the affidavit of David Templeton filed on 26 November 2007 on behalf of the applicants, which referred to a management agreement between Jenolan Caves Resort Pty Ltd and JMA Food and Beverage Pty Ltd and to "Management Agreements" relating to the Trails Bistro and the Chisholm's Restaurant.

Disconformity between amended summons and evidence in Supreme Court

33 In my opinion, the amended summons of 27 April 2007 and the evidence filed in support left the very clear impression, as Schmidt J recorded in her judgment at first instance, that Mr Field was a working director of Jenolan Caves Resort Pty Ltd, the lessee, operator and manager of Jenolan Caves House and that he resided there whilst performing the work of administering and operating the House and the related businesses. That is to say, the amended summons and evidence leave one with the impression that the first applicant, in particular, was a hands-on manager of Caves House and the associated businesses and that he performed that role for 11 years, six days per week whilst living at the House.

34 By contrast, the evidence of Mr Field in the Supreme Court proceedings was that he was not a hands-on manager of any of the businesses associated with the resort; that the businesses were operated and managed by other entities under management agreements; that he performed an "overseeing" role as a director of JCR and later JHM; and that he did not live for 11 years at Jenolan Caves House and only did so when he worked there.

Respondents justified in seeking explanation for disconformity

35 The differences between the pleadings and Mr Field's evidence in the Supreme Court proceedings were such that the respondents were entitled to seek an explanation from the applicants before proceeding with their notice of motion. As a result of having done so, the applicants amended their pleadings, which now indicate that Mr Field was "not the manager as such" of Jenolan Caves House and the associated businesses; that he did not live at Caves House for 11 years but only for "a substantial period of time"; that he only worked six days per week "from time to time"; that he may or may not (see the reference to "and/or" in paragraph B12 of the further amended summons) have "personally" been the "operator", but may otherwise have been involved in the administration and maintenance of Jenolan Caves House and the associated businesses; and that whilst the first and second applicants were not the managers they were directors of JCR and as such had "operational/work/supervisory obligations in relation to that enterprise."

36 The amendments led the respondents to withdraw their notice of motion. The applicants contended that the liability for costs should, therefore, lie with the respondents because although the pleadings were amended, the amendments were not of such a nature as to undermine any argument the respondents wished to run to the effect that the relevant contracts or arrangements were not ones whereby the applicants performed work in an industry. That is to say, it should have made no difference to the respondents' jurisdictional arguments whether Mr Field was a hands-on manager of the businesses associated with the resort, or a director with "operational/work/supervisory obligations" and that the motion, hopeless from the outset, was an attempt to delay the determination of the merits of the matter.

37 The applicants' contentions regarding the basis upon which the respondents decided to withdraw their motion are not without substance. There was no explanation by the respondents as to how it was that the revelation Mr Field was not a hands-on manager of Caves House and the associated businesses but rather a director with "operational/work/supervisory obligations", caused them to withdraw their notice of motion.

38 Nevertheless, this approach to the issue tends to overlook the fact that there are two important considerations for determining whether there exists a contract whereby a person performs work in an industry for the purposes of section 106(1) of the Act: (a) what is the work that was performed in an industry; and (b) what is the contract or arrangement whereby (that is, "in accordance with", "in consequence of" or "in fulfilment of") that work was performed. See Fish & Another v Solution 6 Holdings Limited (2006) 225 CLR 180 at [19], [41], [43]; Batterham v QSR Limited (2006) 225 CLR 237 at [13], [20], [22], [23] Old UGC Inc & Ors v Industrial Relations Commission of NSW & Another (2006) 225 CLR 274 at [25]; Wirraway (NSW) Pty Limited v Ultra Tune Australia Pty Limited (2006) 156 IR 367 at 381 [42]; Kennett v Mayrana Pty Limited (No 4) [2006] NSWIRComm 357 at [48], [50], [56]; Caterpillar of Australia Limited v Gough & Gilmour Holdings Limited [2008] NSWIRComm 3 at [146]. 39 I am concerned here with the first of the considerations and in that regard, in pursuing any argument concerning the work that was performed in an industry by the applicants, the respondents would have been required to take the evidence of the applicants at its highest. That evidence, consistent with the amended summons, indicated, inter alia, that:

· from 30 December 1994 to 9 December 2005, the first applicant managed the business of Silkbard (later JCR) and was paid no remuneration for that work; · from 30 December 1994 to December 2005, the first applicant performed "managerial" work in relation to the upgrading of Jenolan Caves House; and · for an eleven year period, the second applicant performed work assisting the refurbishment planning, the refurbishment work and the administration and operation of Jenolan Caves House and associated businesses. 40 As it is now apparent, that evidence was in disconformity with the evidence given by Mr Field in the Supreme Court. The respondents were entitled to know what case it was they were required to meet regarding the work that was performed. Whilst the respondents now know what is asserted in the further amended summons, importantly the applicants' evidence is in a state of some uncertainty. That is to say, the amendments in the further amended summons appear to create inconsistencies with affidavits filed in connection with the amended summons. The consequences of that would seem to be that the evidence filed in support of the amended summons, which asserted, amongst other things, that the first applicant "personally [became] the operator of Jenolan Caves House and associated businesses…" is in conflict with the further amended summons and, by extension, the affidavits verifying the further amended summons.

41 In those circumstances, given the uncertainty or ambiguity affecting the applicants' evidence, the respondents cannot be criticised, nor is it appropriate at this stage to make a costs order against them, for taking the course of withdrawing their notice of motion and keeping their options open as to whether or not they wish to pursue the jurisdictional issue in the substantive proceedings depending upon how the evidence falls.

42 In any event, given the degree of uncertainty surrounding the evidence, I take the view that the facts are not sufficiently established to enable the Court to be satisfied it has the necessary material to reach a clear and final decision on the jurisdictional question at this stage of the proceedings: see Nagle (t/a W.D. & J.L. Nagle & Sons) v Tilburg (1993) 51 IR 8 at 10-11.

43 The appropriate course for the Court to take is to reserve the question of costs of the respondents' motion so that they are costs in the cause. The Court so orders. 44 The matter is listed for directions at 9.30 am on Tuesday 29 July, 2008.

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