Karen Thompson v Seventh Day Adventist Church

CITATION: Karen Thompson v Seventh Day Adventist Church (South Pacific Division) Ltd & ors [2005] NSWIRComm 84

APPLICANT: Karen Thompson PARTIES: RESPONDENTS: Seventh Day Adventist Church (South Pacific Division) Ltd and ors

CATCHWORDS: Unfair contract - Industrial Relations Act 1996 s 106 - applicant employed by church as teacher - difficulty in determining which particular entity within church operation was the employer - Notices of Motion to substitute a respondent, join a respondent and remove a respondent prior to conciliation - complexity of church organisation using both incorporated and unincorporated entities - sufficient connection with employment arrangement established - order made for substitution of respondent and joinder of another respondent - culpability of proposed respondent not sole test - respondent incorporated after impugned contract terminated capable of being joined

AOS Group Australia Pty Ltd (In Liquidation) v Arrogante (2004) 135 IR 44 Batolacci v Permanent Custodians Ltd (1992) 44 IR 388 Brown v Rezitis (1970) 127 CLR 147 Burnett v Atlantis Relocations (NSW) Pty Ltd [2002] NSWIRComm 266 Custom Credit Corporation Ltd v Goldsmith 1975 AR 98 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 CASES CITED: Gough & Gilmour Holdings Pty Ltd and ors v Caterpillar of Australia Ltd (No 2) (2001) 106 IR 274 Hagans v UnitedGlobalCom Inc and ors [2004] NSWIRComm 164 Myer Stores Ltd (t/as Grace Bros) v Stowart (1994) 55 IR 21 Nagle v Tilburg and anor (1993) 51 IR 8

APPLICANT: Mr I Taylor of counsel SOLICITORS: Hennikers

LEGAL REPRESENTATIVES: RESPONDENTS: Mr J Phillips SC SOLICITORS: McMahon Fearnley Barristers and Solicitors Melbourne by their agents: Morgan Lewis Alter

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

Matter No. IRC 6530 of 2001 Karen Thompson v Seventh Day Adventist Church (South Pacific Division) Ltd & ors. Application under s 106 of the Industrial Relations Act 1996

JUDGMENT [2005] NSWIRComm 84 1 On 3 October 2001, the applicant filed a Summons for Relief under s 106 of the Industrial Relations Act 1996 naming as the respondent the Seventh-Day Adventist Church (SPD) Ltd. The Summons claimed the existence of a contract of employment between the applicant and the respondent under which the applicant was engaged to perform work in the teaching industry. That employment was said to have started in January 1987, with a short break in employment and then continually from April 1988 until the end of January 1998. The respondent was said to be, at all material times, a church operating in New South Wales with its registered office being "South Pacific Division Seventh-Day Adventist Church, 148 Fox Valley Road, Wahroonga". It was further alleged that the respondent's South Pacific Division was based in New South Wales and was administered by officers of the respondent located in New South Wales. 2 With her husband the applicant had been employed as a teacher to work in Papua New Guinea. The applicant stated that she had been employed under three, four-year, contracts and was terminated with nearly one year of the last four year contract remaining. The applicant's termination of employment was alleged to have arisen following the applicant raising concerns that employees of the respondent had sexually abused the applicant's daughter since 1993, had been aware of these acts of sexual abuse against her daughter and others but had taken no steps to remove the risk of continuing sexual abuse against children. The applicant and her husband were returned to Australia with the respondent undertaking to make efforts to find alternative employment in New South Wales or, if such employment was unavailable, to consider relocating the applicant and her husband to another State. 3 Apparently, it soon became evident to the applicant's legal advisors that there were difficulties in identifying the actual employer with some precision. In 2002, by consent, the Summons was amended to add as the first respondent an entity trading in the name "Seventh-Day Adventist Church". This amendment was apparently allowed on the basis that the applicant would in due course substitute for that trading name the name of the person or persons who traded in that name. 4 By November 2002, the applicant had filed a Notice of Motion seeking an order that "Australasian Conference Association Ltd ACN 000 003 930 "trading as 'The Seventh-Day Adventist Church' be substituted as the first respondent. An order was sought permitting the filing of an amended Summons to reflect the new description of the first respondent. In support of that motion it was stated that at all relevant times Australasian Conference Association Ltd traded as the Seventh-Day Adventist Church, was the trustee for the Seventh-Day Adventist Church South Pacific Division holding assets on behalf of the church, determined the terms and conditions of employment of the applicant, including those set out in the South Pacific Division working policy and was part of the overall arrangement whereby the applicant was engaged to work as a teacher as pleaded in the further amended Summons. At this stage, amongst a significant number of documents annexed to the affidavit of the solicitor acting for the applicant was a letter of appointment addressed to the applicant in 1992 on the letterhead of the "Seventh-Day Adventist Church - South Pacific Division, 148 Fox Valley Road, Wahroonga NSW". That letter advised the applicant of her appointment as an English teacher and librarian at Sonoma Adventist College and that the appointment had been offered by the "central staffing committee of the South Pacific Division". Copies of Papua New Guinea income tax statements of earnings nominated the employer as the "South Pacific Division of the S.D.A Church". Other documents under the same letterhead dealt with a variety of employment matters. 5 This activity on behalf of the applicant was undoubtedly stirred by a motion filed in September 2002 by the second respondent, the Seventh Day Adventist Church (SPD) Ltd. That motion asserted that the first respondent named as "Seventh-Day Adventist Church" was not a legal entity and could not sue or be sued. It was stated that the second respondent was a company which was incorporated after the applicant's employment had been terminated and that, in those circumstances, the second respondent did not and could not have contracted with the applicant nor could it have entered into any arrangement with the applicant and in fact did not do so. The second respondent had not taken over the assets or liabilities of any of the bodies which did contract or enter into an arrangement with the applicant. Significantly, the motion asserted that the applicant at all material times was employed by the Papua New Guinea Union Mission and that body was not an organisation or agent of the second respondent. In those circumstances, the amended Summons for Relief against both respondents was sought to be dismissed. 6 It was the joint position of the parties that these motions be heard and determined prior to the Court conducting conciliation. In April 2003, the hearing of evidence on both motions was concluded but the parties were unable to finalise submissions. The evidence had painted a picture of some complexity as to the manner in which the Church operated and it was suggested to the parties that they might give some consideration to having the South Pacific Division, an unincorporated association, brought in as a party by identifying the individual members of the Division who were engaged in making arrangements for the employment and termination of the applicant. In due course, this led to the applicant filing a further amended motion seeking an additional order that Barry David Oliver be made a respondent to the proceedings in two capacities which would in effect join both the South Pacific Division of the Church to the proceedings and the members of the Executive Committee as at January 1998. 7 At the urging of the Court, the parties continued discussions and reported regularly as to their current status. At one point it appeared that the parties were close to agreement with the respondent interests being prepared to provide a bank guarantee to cover any verdict that might be achieved by the applicant. That proposal was clearly directed at assuring the applicant that if she succeeded in the substantive proceedings there would be an amount of money available to meet any order made by the Court and thus her concerns could be allayed. The respondent's approach, however, required the deletion of the second respondent but the applicant declined to agree to that course. The applicant's clear concern was that a guarantee provided by a particular entity would be of no benefit if the respondent still reserved to itself the right to argue that that respondent was not the employer or in any way culpably or in any other sense connected with the contract of employment and its surrounding arrangements. It was clear that the applicant, on the basis of evidence adduced during the hearing of the motions, had identified a number of bodies as being potentially the employer, or holding assets on behalf of the employer, or were otherwise involved in the arrangements whereby the applicant was employed. In September 2003, further evidence and argument on the motion was concluded with the parties continuing discussions. Thereafter the matter was mentioned a further ten times, with the parties reporting on the progress of their continuing discussions and, at one point in June 2004 announcing that the matter had been settled with terms to be reduced to writing. Again, that arrangement fell through and in February 2005 the Court was informed that the appropriate course was to formally determine the Notices of Motion. 8 In order to determine the matter, as requested by the parties, it is necessary to return to the submissions made in September 2003. Again, on that occasion the parties had taken some time to further discuss the issues before the matter was formally called for hearing. It was reported for the respondent that a further offer of the provision of a guarantee was put forward but that the applicant objected to a guarantee being provided by a body that was not party to the proceedings. The airing of these differences led the respondent to make an open offer whereby, pursuant to s 401 of the Act, the Executive Committee of the South Pacific Division of the Seventh-Day Adventist Church as represented by Barry David Oliver as current General Secretary of the Executive Committee of that Division and in his capacity as representative of the Executive Committee of that Division (as at 31 January 1998) be substituted as first respondent in the proceedings. It was also accepted that the applicant be granted leave to amend the Summons but with such amendments as were necessary as a consequence of Australasian Conference Association Ltd not being a party to the proceedings. This position was rejected by the applicant. While the respondent was willing to give some "comfort" to the applicant, it was the respondents' position that the second respondent Seventh-Day Adventist Church (SDP) Ltd had only come into existence after the contractual terms had been entered and terminated and therefore had no connection whatsoever with the applicant's claim. It was further emphasised that the Executive Committee had internal arrangements whereby it was able to ensure that any verdict against the respondents could be satisfied. If that course was taken, the respondents were content to stand over generally their motion seeking to strike out the proceedings. 9 The applicant accepted that the first respondent, being the Seventh-Day Adventist Church, was not a legal entity, however, at all times it had proposed to substitute the name of the proper legal entity when that was discovered. The applicant accepted the substitution of Mr Oliver in two capacities, being the General Secretary of the South Pacific Division of the Seventh-Day Adventist Church and as representative of the Executive, in place of the first respondent but wished to continue with its application to have Australasian Conference Association Ltd joined because, on the evidence and the applicant's researches, that body was the trustee that held and controlled all the assets of the Division. In such a role, this body had to be, at all relevant times, involved and a party to the overall arrangements whereby the applicant was employed. Because the evidence demonstrated that Australasian Conference Association Ltd held, controlled and operated all the assets of the South Pacific Division, the applicant was concerned that unless it was a party to the proceedings that entity could withhold or refuse to pay the amount of any order granted against the South Pacific Division (as represented by Mr Oliver) and so frustrate the applicant's success. An additional concern of the applicant was that the South Pacific Division, being an unincorporated body, could not itself enter contracts and it appeared open on the evidence to conclude that those contracts were in law entered into through the trustee body acting through the Executive of the Division and Mr Oliver. The evidence showed that the Division conducted a number of transactions through the Trustees. It was Australasian Conference Association Ltd that owned and operated bank accounts through which the applicant was paid in her employment and it was that body that held her superannuation funds as trustee. It was also submitted that the evidence at the present stage of the proceedings did not go so far as to support a finding that Mr Oliver as secretary of the South Pacific Division could order or direct Australasian Conference Association Ltd to release funds relating to this case, being the funds necessary to satisfy any order made by the Court should the applicant be successful in the proceedings. 10 In further oral evidence, Mr Oliver said that the Committee of the South Pacific Division comprised some 60 or 65 persons, that the Committee had a term of five years and at the end of each term there was a certain turnover to ensure that an opportunity was given to people to have a voice in the senior governing body of the Church. Mr Oliver was not a member of the Board of Australasian Conference Association Ltd. It was a matter of fact that a number of the members of the Executive Committee of the South Pacific Division were on the Board of Management of Australasian Conference Association Ltd. 11 During the course of final submissions it appeared that the respondent accepted that Mr Oliver personally as Secretary and in his representative capacity for the Executive of the South Pacific Division would be substituted as the first respondent and that would have the effect of modifying the respondent's motion. The respondents no longer wanted to strike out the proceedings generally, but sought to strike out the second respondent, Seventh-Day Adventist Church (SDP) Ltd. The respondents continued to oppose the joinder of Australasian Conference Association Ltd. 12 On an analysis of the evidence, the applicant submitted that the Church operated in the region by using a series of incorporated and unincorporated associations all apparently ultimately responsible to the peak regional body known as the South Pacific Division and that all the bodies were required to work in accordance with a document known as the "Working Policy". The evidence supports the following description of these entities as submitted by the applicant: (a) The South Pacific Division of the Seventh Day Adventist Church. This is an unincorporated association. It is the peak organisation of the Church in the region. The region incorporates Australia, PNG and other South Pacific countries The Applicant asserts that she was employed for the purposes or on behalf of the South Pacific Division or, at the least, the South Pacific Division played a significant role in the overall arrangements by which the Applicant was employed; (b) The Executive Committee of the South Pacific Division of the Seventh Day Adventist Church. The South Pacific Division has an Executive Committee which is given the power (pursuant to the constitution of the South Pacific Division, which is set out in the first section of the Working Policy) to transact business on behalf of the Division. In other words, it is the committee of management of the South Pacific Division; (c) Barry David Oliver. Mr Oliver is the current Secretary of the South Pacific Division. He has been Secretary since January 1998. Accordingly he was the Secretary of the South Pacific Division, and so as an officer of the Division was an ex officio member of the Executive of the South Pacific Division in January 1998; (d) Seventh-Day Adventist Church (SPD) Ltd ACN 093 117 689 This is the current second respondent. It is an incorporated association that commenced operation on 1 July 2000. It was established on 1 July 2000 'by the South Pacific Division of the Seventh-Day Adventist Church for the purposes of exercising and assuming, as the case may be, the duties, liabilities, responsibilities, powers, rights and entitlements of the Executive Committee of the South Pacific Division pertaining to Australia save for those retained by the Executive Committee and recorded by written instrument by the Executive Committee so retained'; (e) Australasian Conference Association Limited ACN 000 003 930 This corporation was established in 1909 in order to be the corporate trustee for the South Pacific Division, to hold property on behalf of the Division (which was necessary because the South Pacific Division as an unincorporated association could not hold property in its own name). It owns the trade-mark in the name that is currently the style of the First Respondent, ie Seventh Day Adventist Church; (f) Papua New Guinea Union Mission One of the 4 unincorporated associations within the region that is governed by the South Pacific Division. This is the entity that the respondents assert employed the Applicant, and the respondents assert that the "correct employer is really constituted by the various committees [of that association] over the relevant period". 13 It should be stated immediately that the evidence at this stage shows a somewhat labyrinthine process by which the affairs of the Church are conducted. Other proceedings dealt with by the Court in relation to religious bodies suggest that these arrangements are not unique to the Seventh-Day Adventist Church but they do cause difficulties for parties and the Court in deciding precisely what part of the organisation should be joined in proceedings as the employer or a party to the arrangement including the financial arrangements. It is of some significance in these proceedings that, although there were lengthy discussions as to who should be included or excluded as a respondent, as well as discussions in general about the terms of a guarantee to ensure that any order by way of relief would be met, there was in terms no concession by the respondents to either the amended Summons for Relief or in the amended Notice of Motion that they were the employer for the purposes of the proceedings and that they would be responsible for the satisfaction of any order made by the Court. Indeed, throughout the proceedings, the respondents have asserted that another entity, the unincorporated body known as the Papua New Guinea Union Mission, also governed by the South Pacific Division of the Church, was in fact the employer although that assertion itself lacked clarity in that it was stated that the Mission was the correct employer, being constituted by various committees over the relevant period. During the course of argument the Court indicated that it was this type of imprecision that caused applicants to protect their interests by insisting on the joinder of all those bodies that appeared to be connected in any way with the arrangement impugned in the proceedings. 14 After considering a significant amount of evidence as to the way in which the Seventh-Day Adventist Church operates, including its operations in Papua New Guinea, I am left with some uncertainty as to precisely how the Church operates through its combination of unincorporated and incorporated associations and the powers and functions exercised by each of these bodies. I accept the applicant's submission that the evidence demonstrates that, at the very least, the applicant was employed for or on behalf of the South Pacific Division and that employment arose from what might at the least be described as an arrangement made in New South Wales between the applicant and the Seventh-Day Adventist Church. It appears that this work was to be performed, or had the potential to be performed, not only in New South Wales but in Australia and overseas. The South Pacific Division of the Church was central to that arrangement. I also accept that on the evidence that the South Pacific Division determined conditions of employment for the applicant under the South Pacific Division Working Policy which governed the employment of persons in Australia and overseas. The Working Policy is a comprehensive document dealing with all the usual matters of employment such as the basis of employment (full-time, part-time, casual), termination and redundancy payments, the setting of and variation of wages, leave provisions, period of employment, return leave when working overseas, conditions for permanent return from working overseas and a number of other issues of that nature. The Working Policy also defined the role of the Executive Committee of the South Pacific Division, noting its authority to appoint persons to carry out work in the Division and transacting the business of the Division. The Executive had power over revenue, real and personal property and set wages in accordance with policy for staff engaged by the various union missions. In the light of that material quite apart from the apparent concession made by the respondents, I conclude that it is appropriate to substitute Mr Oliver as Secretary of the South Pacific Division and as representative of the unincorporated Association as the first respondent in place of the "Seventh-Day Adventist Church" that is currently nominated as the first respondent. 15 The proposed joinder of Australasian Conference Association Ltd raises different considerations. The applicant readily acknowledges that the purpose of joining this body is to ensure that any order made by the Court against the representative respondents can be satisfied. The applicant relies on evidence showing that the Church has organised its affairs such that the unincorporated Association appears to make policy decisions and decisions concerning, for example, employment but where Australasian Conference Associated Ltd is the corporate trustee for the South Pacific Division and holds the property on behalf of that Division. It is pointed out that this body is described by the South Pacific Division as the "trustee" for the South Pacific Division and owns the trademark in the name of the Seventh-Day Adventist Church. The Division's Working Policy sets out the Constitution of Australasian Conference Association Ltd and states that it holds property (not limited to real property) for and on behalf of the Division. There was evidence that the Board is made up of persons who are from time to time the Executive Committee of the South Pacific Division. The applicant also relied on evidence that showed that it was this body that provided the applicant and her husband with a housing loan "for and on behalf of the employing organisation", which was the South Pacific Division. The funds under that loan were forwarded under cover of a letter from South Pacific Division. It also appeared from the evidence that this body was the trustee of the superannuation fund into which contributions were made on behalf of the applicant during the course of her employment. The applicant submits that there is an arguable case that this body trades in the name of the Seventh-Day Adventist Church (being a trademark that it owns) and that it was part of the overall arrangement in that (a) it held the relevant assets for and on behalf of the South Pacific Division, and/or (b) was the "legal entity" that entered into agreements on behalf of South Pacific Division. 16 The applicant further submits that Australasian Conference Association Ltd is, on the evidence as it presently stands, sufficiently connected with the arrangement to be joined in the proceedings while asserting that there was evidence that it was a party to the impugned arrangement. The fact that this body acted in the role of "trustee" for the South Pacific Division did not mean that it was to be treated as merely a rubber stamp for that Division: as trustee this body was required to act in accordance with the terms of the Trust. I accept the force of these submissions and note the absence of detailed information about the terms of the Trust Deed. 17 Initially, the respondent was of the view that Australasian Conference Association Ltd was not joined as the employer but simply because it held assets: if the employer was actually the Division, then it was futile to join Australasian Conference Association. As the case developed, it appeared that the respondents' approach was that, if the Court adopted the course of substituting Mr Oliver as the Secretary of the Division and in a representative capacity for the Executive Committee at the relevant time, then there was no basis nor was there any point in joining Australasian Conference Association nor continuing with the respondency of the Seventh-Day Adventist Church (SDP) Ltd. In the respondent's submission, the joinder of Australasian Conference Association Ltd was merely to act as an insurance policy for the applicant since there was no suggestion that this body was culpably involved in the arrangements whereby the applicant was employed as a teacher in Papua New Guinea. It was unnecessary to pursue this joinder in circumstances where the existing respondents would arrange for a bank guarantee that would be available to meet any orders made by the Court. During the course of the proceedings and the numerous reports received by the Court, it appeared that the parties continued to have difficulties with the terms of such a bank guarantee and, not unimportantly, some of those difficulties laid with the bank concerned and its requirements for such a document. 18 In this approach by the respondents, considerable reliance was placed on the principles governing the proper joinder of parties as dealt with by the High Court in Brown v Rezitis (1970) 127 CLR 147. In that case, Barwick CJ emphasised that, even if proceedings for the variation or avoidance of a contract or arrangement must be initiated by one of the parties to the contract or arrangement, the parties to the proceedings were not necessarily limited to those parties: there were a number of possibilities, including persons who were not party to the contract but who had in fact participated in its making, as well as persons who had received money indirectly from the parties to the contract or who may be holding money derived therefrom for one of the parties. In exercising the Court's power to make such order as to the payment of money "in connection with" any contract declared wholly or partly void, while it was necessary for there to be demonstrated a closer connection between the order made and the contract or arrangement varied or avoided, the power would nevertheless extend to ordering the payment of money, where the order, on the larger view of the jurisdiction given by the sub-section, could be considered appropriate to effect wholly or partially the restitution of the parties to their former position upon the variation or avoidance of the contract or arrangement. In a separate judgment, Menzies J stated that, without exhausting the meaning of the phrase "in connection with", a payment of money in respect of work done or money spent or obligations incurred under the avoided contract or arrangement was properly to be regarded as a payment in connection therewith so long as the person who was ordered to make the payment was a person who was connected "in some way" with the making of the contract, the work done, the expenditure made, or the obligation incurred. 19 It is clear that the judgments in Brown v Reizitis do not limit the parties who may be properly joined to proceedings concerning unfair contracts to those who are directly culpable in the making or in the operation of the contract or arrangement. Recently, the Court has acceded to the joinder of a corporate entity that came into existence after the impugned contract because of corporate reorganisation and where certain of the rights and assets of the previous corporate entity were transferred to the new entity under the reorganisation (Gough & Gilmour Holdings Pty Ltd and ors v Caterpillar of Australia Ltd (No 2) (2001) 106 IR 274; Hagans v UnitedGlobalCom, Inc and ors [2004] NSWIRComm 164). Further, in Burnett v Atlantis Relocations (NSW) Pty Ltd [2002] NSWIRComm 266, Marks J dealt with a proposed amendment of a summons under s 106 of the Act to add a further party in circumstances where the applicant alleged that the proposed respondent was the beneficiary of the unfairness in that it had received the assets, business and goodwill of the first respondent. At [14] his Honour noted: There have been a number of cases in this Court and its predecessors in which persons or corporations who were not parties to the contract or arrangement sought to be impugned to have been made parties to the proceedings so that orders for the payment of compensation might be made and enforced against them. I instance by way of example the decisions of the Full Bench of this Court in Ace Business Brokers Pty Ltd v Phillips-Treby [2000] NSWIRComm 163, Gough & Gilmour Holdings Pty Ltd v Caterpillar Australia Ltd [2001] NSWIRComm 92, Harmer v Caltex Petroleum Pty Ltd [2000] NSWIRComm 100 and Bowker v Software Engineers Australia (NSW) Pty Ltd [2002] NSWIRComm 135.

In AOS Group Australia Pty Ltd (In Liquidation) v Arrogante (2004) 135 IR 44 the Full Bench at [16] noted that in Brown v Rezitis, Menzies J (at 169) had stated that the predecessor s 88F was clearly intended to confer a comprehensive power upon the Commission to go to the substance of the arrangements made for a person to perform work in an industry and to do so in disregard of the legal dress in which the arrangement had been clothed. At [17] it was noted that in Myer Stores Ltd (t/as Grace Bros) v Stowart (1994) 55 IR 21, the Full Court accepted the approach of Hungerford J in Batolacci v Permanent Custodians Ltd (1992) 44 IR 388 that Custom Credit Corporation Ltd v Goldsmith 1975 AR 98 was support for the proposition that two or more separate contracts may be sufficiently associated with each other together to constitute an arrangement under which work is performed in an industry so as to be comprehended within the unfair contract provisions of the Act. That Full Bench had stated that it was this flexibility of approach that operated to allow an examination of all of the aspects of the relationship. Adopting that approach, it is prudent to have those parties that may conceivably be involved in the relationship before the Court. 20 In applications to amend proceedings as well as to join additional parties the Court has traditionally operated on the principle that it should take the course that is most conducive to the just resolution of the dispute, having regard to the desirability of limiting the costs and delay of litigation and to ensure that all matters in dispute in the proceedings may be effectively and completely determined and adjudicated upon and to avoid a multiplicity of proceedings. I propose to adopt that approach to these matters. 21 Having regard to the status of Australasian Conference Association Ltd as exposed by the evidence to date and its relationship with the South Pacific Division of the Church, I accept the applicant's submissions and I am satisfied that grounds exist for joining that entity as a respondent to these proceedings. 22 The last matter concerns the respondents' Notice of Motion seeking to remove the second respondent, namely Seventh-Day Adventist Church (SDP) Ltd. In this application, the respondent repeats a number of the arguments mounted against the joinder of Australasian Conference Association Ltd except that there is the additional point that this entity was not incorporated and did not commence operation until July 2000 and was therefore not in existence at the time of the events that are the subject of the Amended Summons for Relief.

The applicant's case accepts that this entity was created and came into operation in July 2000, but notes that it was established by the South Pacific Division for the purposes of exercising and assuming the duties, liabilities, responsibilities, powers, rights and entitlements of the Executive Committee of the Division. What was the purpose of this arrangement and what was its effect was not adequately explained by the evidence and was not the subject of any submission by the respondents. The second respondent operates from the same address as the Church's South Pacific Division and was described on the Church's website as the "legal association" of the South Pacific Division. The evidence suggested that it employed staff in Australia and carried out at least some of the operations previously carried out by the South Pacific Division and had taken over liabilities and duties from the South Pacific Division Executive Committee. 23 In General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, the High Court held that the jurisdiction to terminate an action summarily for want of a cause of action was to be sparingly employed. That approach was adopted in this jurisdiction by the Full Court in Nagle v Tilburg and anor (1993) 51 IR 8 and has since been endorsed on numerous occasions.

The state of the evidence does not permit a conclusion to be reached that the second respondent has no connection whatsoever with the impugned arrangement. Bearing in mind that this motion has been brought prior to conciliation, and therefore before all the evidence has been filed, the motion appears to have been brought prematurely and based on the simple but not conclusive basis that the second respondent only came into operation after the applicant's employment was terminated. As earlier indicated, the judgments of the Court in Gough & Gilmour, Hagans and Burnett demonstrate that such a fact is not conclusive of a lack of connection with the contract or arrangement so as to fall outside the jurisdiction exercised by the Court. When all the evidence is in, the parties may be in a better position to address the necessity for the second respondent to continue as a party to the proceedings. The respondent has, however, failed to discharge the significant onus imposed upon it to strike out the second respondent. The respondent's motion is therefore dismissed. 24 From time to time, during these extended proceedings, the respondents submitted that the Papua New Guinea Union Mission was the applicant's employer and thus the applicant's motion for joinder should fail and the respondents' motion should succeed. Bearing in mind the curious manner in which this matter has proceeded, I am unclear whether this aspect is pressed by the respondents, but as a matter of caution, I shall deal with it. 25 There appear to be two documents of significance that refer to the Papua New Guinea Union Mission of the Seventh Day Adventist Church. The first is dated August 1995 directed to the PNG Department of Labour and Employment and advises that the applicant had been appointed to the Mission at the Sonoma Adventist College and that the Mission would be fully responsible for the accommodation, maintenance and eventual repatriation of the applicant. The purpose or requirement for such a document is not adequately explained and it is to be contrasted with other documents showing decisions made by the Division to employ the applicant and written offers of employment being made to the applicant by the Division. This document is not necessarily inconsistent with the Division being the employer. The second document is a March 1998 document in which certain representations are made on behalf of the applicant by solicitors previously acting for her. That document does not in terms deal with the legal issue now before the Court but comments as to the applicant not making application for employment to the Union Mission but accepting an offer to teach at the Sonama College apparently made by the Education Director of the Union Mission. In what capacity that offer was made is not clear from the correspondence and indeed the applicant's solicitors' letter is directed to the division at its Wahroonga address. In my view this type of material falls well short of establishing the Union Mission as the employer, especially when compared with the variety of documents emanating from the Division and the terms of the "working policy". These two documents may be further evidence, however, of the complexity of arrangements within the Church for obtaining teachers but do not amount to evidence of a right by the Union Mission to act independently of the Division in authorising employment for the Church in Papua New Guinea or constituting the Union Mission as the employer to the exclusion of any other entity within the Church. In those circumstances I am unable to accept the respondent's submissions as to the role of the Union Mission and its impact on the amended Notice of Motion issued by the applicant. 26 Although the issue of costs relating to these motions had been addressed by the applicant, the respondents have not dealt with that issue and have not filed a submission in relation to that issue. In light of that situation and because I propose to deal with conciliation as soon as possible bearing in mind the time that has elapsed while these motions have been debated and discussed, I propose to reserve the question of costs and to deal with it at the conclusion of conciliation if conciliation is otherwise unsuccessful. ORDERS 27 In relation to the applicant's motion: 1. That Barry David Oliver be substituted as the first respondent in his capacity as the Secretary of the South Pacific Division of the Seventh-Day Adventist Church and in his capacity as representative of the Executive Committee of the South Pacific Division of the Seventh-Day Adventist Church as at 31 January 1998. 2. That Australasian Conference Association Ltd ACN 000 003 930 trading as the Seventh-Day Adventist Church be joined as the third respondent. 3. Costs are reserved until the conclusion of conciliation.

In relation to the respondent's motion: 1. The respondent's motion to strike from the proceedings the Seventh-Day Adventist Church (SPD) Ltd ACN 093 117 689 is dismissed. 2. Costs are reserved until the conclusion of conciliation.

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