Gambotto v John Fairfax Publications Pty Ltd

APPLICANT/RESPONDENT ON THE MOTION Ms C Ronalds of counsel

SOLICITOR Harmers Workplace Lawyers SYDNEY. LEGAL REPRESENTATIVES: RESPONDENT/APPLICANT ON THE MOTION Mr J L Trew QC with Mr A B Gotting of counsel

SOLICITOR Freehill Hollingdale & Page SYDNEY.

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Matter No. IRC7066 of 1999 ANTONELLA GAMBOTTO v JOHN FAIRFAX PUBLICATIONS PTY LIMITED.

Application under s.106 of the Industrial Relations Act 1996. INTERLOCUTORY JUDGMENT 1 The applicant, Antonella Gambotto, is a freelance book reviewer or literary critic, a writer of human profiles and a novelist. Between 1984 and 1996 she spent periods of time in Australia and England during which she worked, it seems as a means of enabling her to engage in her main interest of writing novels, as a freelance journalist on many newspapers and magazines. It is clear that she had developed a reputation as a journalist of considerable ability. Between December 1991 and January 1997 she performed work as a freelance journalist on the Sydney Morning Herald on behalf of the respondent, John Fairfax Publications Pty Limited. This work principally involved book reviews, but also included a number of articles in the nature of personal profiles. 2 During the performance of the contractual work and at the point of termination of the contract, no issue of substance arose between the parties and in particular there was then no question arising between them to the effect that the contract was unfair either in its terms or in its operation. 3 In January 1997 the applicant ceased to work for the respondent, that decision having been taken of her own accord; she then commenced to perform work on behalf of one of the respondent's competitors, News Limited. 4 Subsequently, four events occurred which, as I understand it, have given rise to these proceedings. Those events were firstly on 27 September 1997 a review of a book written by the applicant, An Instinct to Kill, was published in the Spectrum section of the Sydney Morning herald. The review is said to have alleged the applicant falsified a quote from the author, Martin Amis, praising her work; the quote was set out on the book's cover. Secondly, the publication of a major article dealing with the applicant, published in the Good Weekend supplement to the Sydney Morning Herald. This article, entitled "Interludes with Antonella", was written by John Van Tiggelen. The applicant contends it contained a false statement concerning the manner in which and the reason for which the applicant's employment had concluded. It is also contended the article contained a further 200 errors, omissions and misrepresentations. These two events, the publication of the book review and the article, are contended to have significantly damaged the applicant's future work prospects and livelihood. 5 The third event involves the ABC television program, Media Watch, which on 15 March 1999 referred to the Good Weekend article and the applicant's lawyers having a sent a threatening letter to the respondent. Media Watch was presented by Richard Ackland, then also an employee of the respondent. 6 The fourth event was a reference to the Media Watch program, published by the respondent in Spectrum on 20 March 1999, in terms which included: Antonella Gambotto's ongoing wrangle with Good Weekend is hardly news. (Damn! Did the mere mention of her name here give that woman one more iota of undeserved exposure? Hope not.) 7 Both the ABC program and the Spectrum reference are contended to have further damaged the applicant's reputation. These events occurred more than eight months and up to 26 months after the cessation of the relationship of the parties in January 1997. 8 The applicant's summons seeks a number of forms of relief:

A declaration that the contract or arrangement between the applicant and the respondent (hereafter called the "contract") whereby the applicant performed work in the newspaper industry and/or any condition or arrangement collateral thereto was unfair, harsh or unconscionable or contrary to the public interest.

An order that the contract be varied from its commencement or from some other time to include the terms, conditions and arrangements set out in Schedule "A" hereto and to delete any inconsistent terms or conditions.

An order that the respondent, and any related bodies corporate of the respondent (as defined in the Corporations Law) be prohibited, other than on terms which include the conditions specified in Schedule "A", from entering into any contract or arrangement for the performance of the work of journalism, whether on an employment or sub-contract basis or otherwise.

An order that the respondent publish a retraction and the apology as set out in Schedule "B".

An order that the respondent pay to the applicant a sum, particulars of which will be provided prior to the hearing, or such other sum of money as the Commission considers just in the circumstances of the case.

An order that the respondent pay the costs of the applicant for these proceedings.

8. Such further and other orders as the nature of the case may require. 9 This judgment concerns an interlocutory motion by the respondent for an order dismissing the proceedings, on the basis that the Commission is without jurisdiction to resolve them under s.106 or s.107 of the Act, or staying them to the extent that they are not dismissed. This latter alternative proposition, although contained in an amended motion filed by leave in the proceedings, was not addressed to any extent; I therefore propose to confine my judgment to the issues concerning dismissal of the proceedings. It would seem that if jurisdiction under s.106 exists, no basis for staying the proceedings is, or perhaps could be, made out. 10 The parties are agreed that the facts asserted in the applicant's case should be taken at their highest in that interest. Some material in the two affidavits filed by the applicant may be the subject of objections of substance but those parts have been treated as evidence for the purposes of the motion. The parties also accept that the evidence, not necessarily complete in the applicant's case on the merits, is complete for the purposes of jurisdiction. Ms Ronalds for the applicant expressly disavowed the proposition that any point would be taken to the effect that the ruling upon the jurisdictional objection of the respondent was premature (see Nagle v Tilburg (1993) 51 IR 8). 11 The parties are also in virtual agreement on the test which must be satisfied for the proceedings to be dismissed at a summary or preliminary stage. Both Mr Trew for the respondent and Ms Ronalds rely on the judgment of Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-129 as the basic authority. That case illustrates (to adopt the phrases selected therefrom by counsel here) that the claims made must be "manifestly groundless", "so obviously untenable that they could not succeed" or "so manifestly faulty as not to admit of argument". See also Nagle v Tilburg ibid at 12-13, and Beahan v Bush Boake Allen Australia Limited (1999) 93 IR at 20.3 for application of the principle in this jurisdiction. 12 In summary the applicant's case is that during her engagement she had difficulties of a professional kind with editorial staff employed by the respondent. She was a person of standing in her profession. The respondent, by its published references or bi-lines, presented to the readership of the Sydney Morning Herald an elevated view of her standing thereby accruing a benefit to the Herald. She contends, and I accept for present purposes, that she had particular qualifications and skills and a style and reputation which were attributes that the respondent wanted. 13 Then, after the contractual relationship ended, the applicant contends she was treated by the respondent in a way which impacted on her reputation to her disadvantage, by affecting her employment opportunities, subjecting her to stress and causing her financial loss. It is argued that the contract under which the work was performed was unfair in that it did not prevent the respondent acting in this unfair way and requires variation to impose a series of duties upon the respondent which would prevent conduct of the particular sort. The claim would also seek to impose upon journalists employed by the respondent a Code of Ethics, which it is suggested conforms with the Code of Ethics adopted by the former Australian Journalists Association, now the Media, Entertainment and Arts Alliance. 14 As the summons for relief is couched and pressed, the contract or arrangement in respect of which relief is sought is the contract between the applicant and the respondent under which she performed the particular work. It is claimed to be unfair in the relevant sense since inception or from some later point in time as a result of the conduct of the respondent. That conduct is expressed to involve the contract having permitted the respondent:

(a) To make false statements concerning the circumstances surrounding the applicant's termination of engagement.

(b) To make false statements concerning the quality of work performed by the applicant for the respondent.

(c) To conduct itself in such a way subsequent to termination as would damage, or as would be calculated or likely to damage, the personal and professional reputation of the applicant and the applicant's prospects of future employment and so as to cause the applicant anxiety, distress and embarrassment.

(d) To act in such manner towards the applicant, subsequent to termination with the respondent and commencement with a competitor, as would create in the mind of the applicant and potentially in the minds of other employees and subcontractors of the respondent the impression that to leave the respondent in order to work for opposition will result in: (i) the journalist being defamed or ridiculed in the pages of the respondent's publications; (ii) the journalist's friends, partner or family being defamed or ridiculed in the pages of the respondent's publications; (iii) future writing work of the journalist being wilfully misrepresented to the public so as to damage the reception of that writing; (iv) malicious lies being published concerning the journalist.

(e) To promote the professional abilities and attributes of the applicant over a considerable period of years in order to promote the publications of the respondent and thereafter, in a fashion totally inconsistent with that previous promotion, and only after the applicant concluding her engagement with the respondent to misrepresent the professional abilities and attributes of the applicant in order to deprecate same and to justify the respondent's misrepresentations as to the reasons for the applicant ceasing engagement with it. 15 The contract is also alleged to have permitted persons associated with the respondent as either employees or on a subcontractor basis to malign the applicant, assisted in this by the respondent's lack of governance and accountability, lack of ethics in journalism and/or the respondent's reckless indifference to accuracy and ethics in journalism. 16 The summons is also directed towards contracts entered into between the respondent and other journalists, which contracts are alleged to be arrangements collateral to the contract between the applicant and the respondent. These were also said to be harsh, unfair, unconscionable or contrary to the public interest on the basis, specifically, that the respondent through its employee Mr Van Tiggelen in articles concerning the applicant:

(i) did not report and interpret honestly; did not report accurately, fairly nor were essential facts disclosed; did suppress relevant available facts; did give distorting emphasis; and did not do the utmost to give a fair opportunity for reply;

(ii) did place unnecessary emphasis on personal characteristics including gender, sexual orientation, family relationships, religious beliefs and physical appearance;

(iii) did not aim to attribute information to its source. Specifically Mr Van Tiggelen did not agree to an un-named critic's request for anonymity without first considering the source's motives and any alternative attributable source. Mr Van Tiggelen deliberately distorted quotes of others in order to create a false impression and accepted confidences without respecting same;

(iv) did allow personal interest, belief, payment and benefit to undermine accuracy, fairness or independence;

(v) did not disclose conflicts of interests that affected, or could be seen to affect, the accuracy, fairness or independence of the journalism and improperly used a journalistic position for personal gain;

(vi) did allow commercial considerations to undermine accuracy, fairness and independence;

(vii) did not use fair, responsible and honest means to obtain material - to the contrary Mr Van Tiggelen induced the production of information through misrepresentation regarding the notion of "off the record" conversations;

(vii) did not present a picture of the applicant which was true and accurate and did not disclose attempts to mislead;

(ix) did not respect the applicant's personal grief and personal privacy and did not resist the compulsion to intrude.

The respondent, upon being presented with evidence as to the inaccuracies, did not do its utmost to achieve fair correction of errors but rather utilised its legal and other resources in bad faith to perpetuate the misleading impression of the applicant and to further attempt to damage and ridicule the applicant. 17 The first matter for determination concerns the attempt by the summons to impose duties upon the respondent in relation to the contractual arrangements between it and its journalists other than the applicant. These contractual relationships, either as employees or subcontractors, are said by the applicant to constitute collateral arrangements for the purposes of the definition of a contract provided by s105 of the Act. 18 In Bartolacci v Permanent Custodians Limited (No 2) (1992) 94 IR 122 the Full Industrial Court (Cahill Dep.CJ., Glynn and Peterson JJ) dealt with an appeal from Hungerford J in which had arisen a question whether a mortgage entered into between the appellant and the respondent was, within the words of s.275(1) of the Industrial Relations Act 1991, a "contract or arrangement or any related condition or collateral arrangement under which a person performs work in any industry". In relation to that question the Full Court said (at p.124-5): Debate ensued about the meaning of those quoted words in three respects: First, does the adjective "related" refer not only to the noun "condition" but also to the words "collateral arrangement". Secondly, can the mortgage between the appellant and the respondent here in question, being undoubtedly a contract, also be an "arrangement" within the statutory term "collateral arrangement". Thirdly, does the clause "under which a person performs work in any industry" refer only to the words "contract or arrangement" or does it also refer to "any related condition or collateral arrangement".

In regard to the first of these matters of construction, his Honour considered that the word "related" does qualify "collateral arrangement", relying both on a preferred grammatical construction and also on the words of the repealed section, s88F of the Industrial Arbitration Act . The relevant wording of that section was: "any contract or arrangement or any condition or collateral arrangement relating thereto" , an arrangement of words which, in his Honour's view, left no doubt that it was necessary for a collateral arrangement to "relate" to a contract or arrangement: it would be "extreme for the legislature to have intended such a subtle re-wording to have the implications which counsel's submission suggested", concluded his Honour.

Despite renewed submissions to the contrary effect by counsel for the appellant in the present proceedings, we consider that his Honour's view on this matter of construction is correct. We observe, however, that, in context, the point seems relatively insignificant - as his Honour put it, "a distinction without a difference". For, even if the words were to be construed so that "related" does not refer to "collateral arrangement", the very word "collateral" must itself require a relationship between the collateral arrangement and a "contract or arrangement" under the section. "Collateral", as senior counsel for the respondent pointed out in the appeal proceedings, by dictionary definition means: "situated at the side; running side by side; accompanying; attendant; auxiliary". Even without the addition of the adjective "related" a "collateral" arrangement must of its very nature have a relationship with the contract or arrangement to which it is collateral. 19 Counsel for the applicant, applying the dictionary definition referred to by the Full Court in Bartolacci, contends that the situation in these proceedings exists within those parameters. I am not able to see how that can be so. The relationship between the respondent and its journalists other than the applicant is not a relationship which is in any sense collateral to that between the respondent and the applicant. The two relationships may be seen to stand alongside each other but not in the sense conveyed by the word "collateral". In order that one arrangement be collateral to another there must be a necessary connection between them. Here, any connection is, I consider, essentially coincidental. The various journalists happen to work, either as employees or contractors, for the same publisher, and the contract or arrangement between the applicant and the respondent may be seen to be of the same character, for present purposes, as those between the respondent and its other journalists. The terms of the contract between the respondent and another journalist are not in any sense collateral to the terms of the applicant's contract. 20 On the collateral arrangement point, I was referred to the judgment of Hill J in Carter v New South Wales Rugby League Ltd (1997) 78 IR 368 at 391.6 as enabling the view to be taken here that there was some relevant connection. There his Honour said: I am of the view that it is not necessary that a related condition or collateral arrangement be one whereby a person performs work if the contract or arrangement to which the condition or collateral arrangement is related is itself one whereby a person performs work in an industry. 21 I read his Honour's observations as going to a different point, namely that a condition or collateral arrangement does not need itself to be one whereby work is performed. 22 Unless the applicant was a party to the arrangements collateral, as she alleges, to her own contract or arrangement, she has no standing to commence proceedings in relation to them, that is the contracts between the respondent and other journalists engaged by it. Section 108 confines standing to apply for an order under either s.106 or s.107 to (relevantly) any party to the contract, or any person who, but for the making of such an order, would be a party to the contract. The term "contract" in s.108 is to be given its extended meaning as defined in s.105 (See Metrocall Inc v Electronic Tracking Systems Pty Limited (No.2) Unreported [2000] NSWIRComm 260 at pars 15-16). 23 It follows that the applicant's claims regarding the alleged collateral arrangements must fail. 24 I turn then to the claims made which would affect the contract or arrangement between the applicant and the respondent. The applicant's approach in this respect is founded upon the term in a contract of employment implied at common law of a duty of fidelity and good faith, or mutual trust and confidence, particularly as it has been developed and applied by the House of Lords in Malik v Bank of Credit and Commerce International SA [1998] AC 20 and also Spring v Guardian Assurance Plc [1995] 2 AC 296. (See also Blyth Chemicals v Bushnell (1933) 49 CLR 66 at 81.2 and Schindlers Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 at 300.27). 25 In Malik the appellant had been employed by the respondent in a banking business which, unknown to the appellant, had been conducted fraudulently. The business failed and the appellant was made redundant by the liquidator. He (and another appellant in a related matter, Mahmud) subsequently submitted a proof of debt in the liquidation claiming substantial compensation due to his inability to obtain employment in the financial services industry because of what he claimed was a stigma attaching to him as a result of the respondent's conduct. 26 The principle speeches were delivered by Lord Nicholls and Lord Steyn. Lord Nicholls recorded the agreement of the parties that the "contracts of employment of these two former employees each contained an implied term to the effect that the bank would not, without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee" (at p.33-4). His Lordship also said (at p.37-8): Employers may be under no common law obligation, through the medium of an implied contractual term of general application, to take steps to improve their employees' future job prospects. But failure to improve is one thing, positively to damage is another. Employment, and job prospects, are matters of vital concern to most people. Jobs of all descriptions are less secure than formerly, people change jobs more frequently, and the job market is not always buoyant. Everyone knows this. An employment contract creates a close personal relationship, where there is often a disparity of power between the parties. Frequently the employee is vulnerable. Although the underlying purpose of the trust and confidence term is to protect the employment relationship, there can be nothing unfairly onerous or unreasonable in requiring an employer who breaches the trust and confidence term to be liable if he thereby causes continuing financial loss of a nature that was reasonably foreseeable.

Employers must take care not to damage their employees' future employment prospects, by harsh and oppressive behaviour or by any other form of conduct which is unacceptable today as falling below the standards set by the implied trust and confidence term. 27 Lord Steyn's speech dealt with the implied term of mutual trust and confidence, in part, this way (at p.45-6): The evolution of the term is a comparatively recent development. The obligation probably has its origin in the general duty of co-operation between contracting parties: Hepple & O'Higgins, Employment Law, 4th ed., (1981), pp.134-135, paras. 291-292. The reason for this development is part of the history of the development of employment law in this century. The notion of a "master and servant" relationship became obsolete. Lord Slynn of Hadley recently noted "the changes which have taken place in the employer-employee relationship, with far greater duties imposed on the employer than in the past, whether by statute or by judicial decision, to care for the physical, financial and even psychological welfare of the employee:" Spring v Guardian Assurance Plc. [1995] 2 A.C. 296, 335B. A striking illustration of this change is Scally's Case [1992] 1 A.C. 294, to which I have already referred, where the House of Lords implied a term that all employees in a certain category had to be notified by an employer of their entitlement to certain benefits. It was the change in legal culture which made possible the evolution of the implied term of trust and confidence.

There was some debate at the hearing about the possible interaction of the implied obligation of confidence and trust with other more specific terms implied by law. It is true that the implied term adds little to the employee's implied obligations to serve his employer loyally and not to act contrary to his employer's interests. The major importance of the implied duty of trust and confidence lies in its impact on the obligations of the employer: Douglas Brodie, "Recent cases, Commentary, The Heart of the Matter: Mutual Trust and Confidence" (1996) 25 I.L.J. 121. And the implied obligation as formulated is apt to cover the great diversity of situations in which a balance has to be struck between an employer's interest in managing his business as he sees fit and the employee's interest in not being unfairly and improperly exploited.

The evolution of the implied term of trust and confidence is a fact. It has not yet been endorsed by your Lordships' House. It has proved a workable principle in practice. It has not been the subject of adverse criticism in any decided cases and it has been welcomed in academic writings. I regard the emergence of the implied obligation of mutual trust and confidence as a sound development. 28 The first observation to be made in respect of that case is that the conduct which constituted the breach of the implied term of mutual trust and confidence was conduct which occurred during the course of the employment relationship. However, Marks J in Bowker and Anor v Prophecy Technologies Pty Ltd, Unreported 26 May 1999 - IRC99/291, a considered judgment on interlocutory matters including injunctive relief pending trial, considered the decision in Malik in conjunction with the decision of the House of Lords in Spring v Guardian Assurance (ibid) and adopted the view that the respondent had prima facie breached its obligations to the applicant by publishing views which would unreasonably injure the applicant with respect to future employment prospects; this conduct had occurred subsequent to the termination of employment. His Honour found this conduct to justify an interlocutory injunction or order, otherwise held to be within power having regard to the facts of the matter, to restrain the respondents from repeating that conduct pending the trial. 29 In Spring v Guardian Assurance (ibid) a former employee of the respondent had been the subject of an unfavourable reference supplied to a prospective employer after the termination of employment with the respondent. The House of Lords held, by majority, that there was an implied term in contracts of employment that an employer would ensure, in preparing and supplying a reference for employment, that reasonable care would be employed. Lord Goff, who was in the majority, said (at p.320): Where the relationship between the parties is that of employer and employee, the duty of care could be expressed as arising from an implied term of the contract of employment, i.e. that, if a reference is supplied by the employer for the employee, due care and skill will be exercised by him in its preparation. Such a term may be implied despite the absence of any legal obligation on the employer to provide a reference (as I understand to have been accepted by the parties in the present case), and may be expressed to apply even after the employee has left his employment with the employer. But in the present case this adds nothing to the duty of care which arises under the Hedley Byrne principle, and so may be applicable as a tortious duty, either where there is no contract between the parties, or concurrently with a contractual duty to the same effect. 30 It is noteworthy that the speeches in the House of Lords considered but did not decide the debate about whether the appellant was engaged under a contract of service or a contract for services, taking the view that the implied duty should be inferred regardless. 31 I refer also to the judgment of Harper J in Wade v State of Victoria and Anor [1999] 1 VR 121. In that matter Harper J was required to consider an action in which a former member of the Victorian Police Force sought to recover economic loss said to result from the provision of information by the Victoria Police to the Queensland Criminal Justice Commission which was false and misleading and caused him to lose employment with a manufacturer of gaming machines. His Honour considered whether a cause of action in negligence was maintainable in respect of the same conduct which would give rise to an arguable action in defamation. After considering the decisions of the House of Lords in Malik and in Spring v Guardian Assurance (together with a number of other relevant authorities) his Honour said at p.143: In summary, it seems to me that an employee or former employee about whom incorrect information is carelessly disseminated by his or her employer or former employer has a cause of action against that employer if the employee suffers financial loss thereby. Restricting the employee's rights to those available under the law of defamation may produce real injustice. It will also create anomalies in situations where what is carelessly said about the employee is damaging, perhaps highly so, but not defamatory. 32 Mr Trew's submissions included the proposition that s.106 does not evince a legislative intention that the section was intended to embrace a claim in defamation, in which matters of liability ordinarily would be determined by a jury. However, the fact that a breach of such an implied duty, if that duty arose as it would appear inevitably to have done in this case, might give rise to an alternative action at law for the recovery of damages is no knock-out point here. So much is made clear by the judgment of the majority in Reich v Client Server Professionals of Australia Pty Limited (Administrator Appointed) (2000) 99 IR 69 at 78 (pars. 20, 21) and in the cases there cited. 33 It would seem that, should the applicant succeed on this aspect of her claim, it would be necessary for the contract or arrangement with the respondent to be held to be unfair in that it failed to make provision of a kind which accords with principles inherent in the applicant's claim for what I might call an ethical approach. Presumably, it would be for want of that provision in her contract that the applicant might be held to be entitled to monetary compensation for such damage or loss as may have resulted from the absence of it. This would seem to me to distinguish this case from defamation proceedings simpliciter. As in Wade v State of Victoria, where the right of action in negligence was held to exist concurrently with any right under the law of defamation, here, whether there be a right of action in defamation or not, the right to proceed under s.106 arises from the terms and scope of the statute. The development of the law under s.106 and, importantly, the legislative intention with respect thereto, has led to the position where contracts, apparently fair during their operation, but found unfair as the result of their termination are now routinely the subject, perhaps now the staple diet, of s.106 proceedings. The Court has become, it appears, the first port of call for many higher-income executives whose employment has been terminated. Why, then, should not the section be able to extend to a case which affects a working journalist who seeks to rely on an alleged breach by the employer of an obligation which the common law now recognises as applicable? I cannot, for myself, see any basis upon which such a proposition could be distinguished as a matter of jurisdiction from that routine position which now arises with respect to unfairness found on the issue of notice of termination of a contract in respect of which the common law would infer an entitlement to reasonable notice. 34 There does not appear to be any reason why the fact that, as alleged here, the conduct complained of occurred after the contract had ended, should alter that position. Just as the termination of a contract can cause it to be found unfair because of its deficiencies, so here the post-employment conduct, arguably amounting to a breach of the trust and confidence implication in the contract itself, may make the contract unfair in the statutory sense. The conduct arises out of and is directly referable to the contract itself. 35 The submission against jurisdiction also includes the proposition that the proceedings are "colourable" in the sense of being commenced simply in order to attract the jurisdiction of the court. A number of federal court authorities were referred to including Lynch v Sisters of Charity of Australia (1997) 76 IR 239 (the Full Bench of the Federal Court) in which this was said (at p. 240): Ms Lynch contended that the Court could determine other issues which arise out of the same substratum of facts as her application under s170EA and therefore arise in the associated and/or accrued jurisdiction of the Court. However as the Full Court of IRCA held in Gunnedah Shire Council v Grout (1995) 62 IR 150 there is no jurisdiction to hear an associated or accrued claim where the primary claim is colourable or made for an improper purpose of fabricating jurisdiction. See also Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219. 36 In Beahan v Bush Boake Allen (ibid at p.42.5) the Full Bench said: In short, our view is that s109A operates to exclude a contract of employment from the operation of s106 only where the unfair contract claim is an unfair dismissal claim in disguise and where essentially it is of the nature of an unfair dismissal Where a claim challenges the terms or operation of a contract of employment by genuine, not superficial or coloured, reasons related to the contract itself then, in our view, it is a claim properly within ss106 and 109A has no operation in relation to it. A review of the allegations made in the present case, we are satisfied, discloses allegations directed to the contract of employment and not to the applicant's dismissal. It is properly within s106. Accordingly, the grounds supporting the motion have not been made out. 37 It may be readily conceded that the claim here is unusual, perhaps novel. The submission that the claim is colourable arises from the obvious qualities which justify that description and ultimately may not be able to support a remedy. But this aspect of the claim, even if suffering these doubts, does not seem to me to be so "obviously groundless" as to be necessarily without jurisdiction. I consider the applicant is entitled to have her claim in relation to her contract litigated, on the basis that it does not meet the tests, referred to earlier, in General Steel Industries Inc. v. Commissioner for Railways (NSW) - see par. 11 hereof, but rather does admit of argument. 38 It seems to me this is particularly so when it is recalled that there are aspects of the claim which relate to the relationship during the actual engagement. Those claims concern alleged unfair treatment and the imposition of unreasonable deadlines for story preparation. Although those issues would seem to present only a small aspect of the whole summons, those matters, in conjunction with the arguably sound basis for the other claims, cause me to reject this part of the motion. 39 I would therefore grant the motion to the extent it seeks to limit the application in its reliance on claimed collateral arrangements, which involves the s.107 claim. I would reject the motion with respect to the applicant's claims in respect of her former contract or arrangement with the respondent. 40 I direct the respondent to file and serve within 14 days a draft order to give effect to this judgment.

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.