Linda Iris Neeson v Amora Company Limited & ors

SECOND RESPONDENT Amora Group Pty Ltd (ACN 112 177 885) PARTIES: THIRD RESPONDENT Dr Taapun Siriphatrawan

FOURTH RESPONDENT Philip Johnson

FIFTH RESPONDENT Amalgamated Holdings Limited

CATCHWORDS: Proposed further amended summons - whether refererence to earlier contract for first time in proceedings - whether amendment time barred by reason of provisions of s 108B. HELD: Necessary to determine subject matter of amended summons - applications of rule 18A - specification - principal claim directed to a contract, arrangement or collateral arrangement between applicant and the respondents - failure to comply with rule 18A not ipso facto a nullity - leave granted - costs reserved.

LEGISLATION CITED: Industrial Relations Act 1996

Written Submissions: HEARING DATES: Applicant: 20/10/2006 Respondent: 15/12/2006 Applicant: 22/12/2006

APPLICANT Mr J Murphy of counsel SOLICITOR: Mr Chris McArdle McArdle Legal

FIRST RESPONDENT LEGAL REPRESENTATIVES: No Appearance

SECOND to FOURTH RESPONDENTS Mr S Prince of counsel SOLICITOR: Ms A Harvey Coleman & Greig

FIFTH RESPONDENT No appearance

• 12 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Interlocutory judgment re application to amend summons

1 These proceedings are brought by the applicant Linda Iris Neeson under s 106 of the Industrial Relations Act 1996 ("the Act") against five named respondents being Amora Company Limited, first respondent, Amora Group Pty Ltd, second respondent, Dr Tanapun Siriphatrawan, third respondent, Philip Johnson, fourth respondent, and Amalgamated Holdings Limited, fifth respondent. The proceedings are currently constituted by an amended summons for relief filed on 26 August 2005. The second, third and fourth respondents filed a motion seeking to have the proceedings dismissed as against them on an interlocutory basis asserting that the subject matter of the proceedings did not have a sufficient territorial nexus with the state of New South Wales and that, accordingly, this Court lacked jurisdiction and power to deal with the proceedings. 2 Relevantly, ss 105 and 106 of the Act are in the following terms: s 105 Definitions

In this Part: "contract" means any contract or arrangement, or any related condition or collateral arrangement, but does not include an industrial instrument. "unfair contract" means a contract: (a) that is unfair, harsh or unconscionable, or (b) that is against the public interest, or (c) that provides a total remuneration that is less than a person performing the work would receive as an employee performing the work, or (d) that is designed to, or does, avoid the provisions of an industrial instrument. s 106 Power of Commission to declare contracts void or varied (1) The Commission may make an order declaring wholly or partly void, or varying, any contract whereby a person performs work in any industry if the Commission finds that the contract is an unfair contract. (2) The Commission may find that it was an unfair contract at the time it was entered into or that it subsequently became an unfair contract because of any conduct of the parties, any variation of the contract or any other reason. (2A) A contract that is a related condition or collateral arrangement may be declared void or varied even though it does not relate to the performance by a person of work in an industry, so long as: (a) the contract to which it is related or collateral is a contract whereby the person performs work in an industry, and (b) the performance of work is a significant purpose of the contractual arrangements made by the person. (3) A contract may be declared wholly or partly void, or varied, either from the commencement of the contract or from some other time. (4) In considering whether a contract is unfair because it is against the public interest, the matters to which the Commission is to have regard must include the effect that the contract, or a series of such contracts, has had, or may have, on any system of apprenticeship and other methods of providing a sufficient and trained labour force. (5) In making an order under this section, the Commission may make such order as to the payment of money in connection with any contract declared wholly or partly void, or varied, as the Commission considers just in the circumstances of the case. (6) In making an order under this section, the Commission must take into account whether or not the applicant (or person on behalf of whom the application is made) took any action to mitigate loss.

3 The amended summons sought, principally, "an order declaring that the contract, arrangement or collateral arrangement between the Applicant and the Respondents under which the Applicant performed work for the Respondents in the hotel industry ("the contract") was unfair, harsh, unconscionable and/or contrary to the public interest." 4 The amended summons contained a summary of matters of fact and law. Relevantly, it described the first respondent as a company incorporated in Thailand of which the third respondent was the owner and chief executive officer and the fourth respondent its chief operating officer. The second respondent was described as being a company incorporated under Australian law having its principal place of business in Victoria and an office in Bangkok, Thailand. The third respondent is described as the owner and chief executive officer of the first and second respondents. He was said to be born in Thailand and is now an Australian citizen. The fourth respondent is said to be chief operating officer of both the first and second respondents. 5 The fifth respondent is said to be an Australian owned and operated entertainment, hospitality and leisure company incorporated in Australia and having its head office located in Sydney, New South Wales. It has a hospitality division called "Rydges Hotels and Resorts". 6 The amended summons asserts that the applicant commenced a "working relationship" with the fifth respondent in February 2003 when she commenced employment as executive assistant manager of the Rydges Jamison Sydney Hotel which was managed by Rydges Hotels and Resorts, which also managed a number of hotels owned by the third respondent or companies associated with him including the Rydges Jamison Hotel, the Rydges Riverwalk Melbourne and the Rydges Amora Beach Resort in Phuket, Thailand known as the Amora Beach Resort. The amended summons does not state by whom the applicant was said to be employed when she worked at the Rydges Jamison Sydney Hotel although it states that her remuneration was paid by a company ADFA Jamison Pty Ltd of which the third respondent is a director. It is alleged that in about October 2004, the applicant was approached inter alia by a representative of the fifth respondent and offered the position of general manager of the Amora Beach Resort. That resort was then managed by a division of the fifth respondent. There is reference to negotiations and discussions said to be relating to the applicant's "international assignment to the Amora Beach Resort" conducted in Sydney and Melbourne with the third and fourth respondents and a representative of the fifth respondent. These culminated in a letter of appointment dated 22 November 2004 addressed to the applicant on the letterhead "Rydges Riverwalk. Melbourne" said to be made on behalf of "Phatara Beach Resort Company Limited" and which was ultimately signed by the fourth respondent on behalf of the third respondent and the applicant. 7 Prior to leaving her then current employment in Sydney at the Rydges Jamison Hotel in order to take up her "assignment" at the Amora Beach Resort, the amended summons states that the applicant was given by a representative of the fifth respondent a document entitled "Amalgamated Holdings Limited Short and Long-Term International Assignment Policies - Human Resources December 2002". The amended summons states that this document required the applicant to "maintain contact with the fifth respondent throughout the assignment and prepare and provide month-end reports to the fifth respondent's corporate office in Australia…." 8 There follows in the amended summons a narration of the applicant's employment at the Amora Beach Resort and the circumstances in which that came to an end, culminating in the issue of these proceedings. 9 During the course of hearing the strike out application brought by the second, third and fourth respondents, I directed the applicant through her counsel and solicitor to particularise that which was sought to be declared unfair for the purpose of the proceedings. I have previously set out the fact that the principal claim is directed against a contract, arrangement or collateral arrangement between the applicant and respondents, collectively referred to as "the contract". Counsel for the applicant responded in writing indicating that "there are a number of contracts" as contemplated by the definition in s 105 of the Act. He said the existence and identification of those contracts might also evolve "as the evidence unfolds." On the basis of such evidence as was before the Court as at 20 October 2006, the applicant's counsel identified the contracts as being: 1) A contract of employment between the applicant and ADFA Jamison Pty Ltd made on or about 7 February 2003, which it was said did not terminate when the applicant relocated from the Rydges Jamison Hotel in Sydney to Thailand. 2) Alternatively, that contract of employment between the applicant and ADFA Jamison Pty Ltd was "in reality, a contract of employment between the applicant and the third respondent, given that it was the third respondent who was the effective owner, controller, voice and decision-maker of ADFA Jamison Pty Ltd." 3) In the alternative, the contract entered into by the applicant in February 2003 was a contract of employment between the applicant and the fifth respondent operating through its hospitality division. 4) A contract of employment entered into by the applicant in February 2003 with both ADFA Jamison Pty Ltd or the third respondent and the fifth respondent as joint employers. 5) Regardless of the identification of the parties to the contract entered into by the applicant in February 2003, there was concurrently a collateral arrangement between the applicant and the third respondent by which she was induced to relocate to Thailand. 6) In the further alternative, a contract of employment between the applicant and Phatara Beach Resort Company Limited and/or the first, second and third respondents made in December 2004. 7) In the alternative, the contract between the applicant and Phatara Beach Resort Company Limited was a related condition or collateral arrangement to any or all of the contracts made in February 2003 as previously described. 10 During the course of further submissions on 26 October 2006, I further ordered the applicant to file a proposed amended summons so that the second to fourth respondents and the Court could understand the manner in which the applicant described each of the alternative contracts, characterised them as being unfair and, in general terms, formulated her claim with respect to each of them under s 106 of the Act. The proposed further amended summons for relief reflects the written specification given by the applicant's counsel, which I have earlier set out. 11 In order to appreciate the nature and extent of the amendment sought, I have annexed to this judgment the first page of the current amended summons for relief and the first two pages of the proposed further amended summons for relief. 12 The second, third and fourth respondents sought to resist the further amendment of the proceedings on a number of bases. Most significantly, was the ground that the amendment was time-barred by reason of provisions of s 108B of the Act, which is in the following terms. s 108B Time for making Application

(1) An application for an order under this Division in relation to a contract that has been terminated must be made not later than 12 months after the termination of the contract.

(2) The Commission does not have jurisdiction to extend the time for making any such application or, subject to subsection (3), to accept an application made after the time prescribed by subsection (1).

(3) The Commission may accept an application made within 3 months after the time prescribed by subsection (1) if the applicant satisfies the Commission that there are exceptional circumstances justifying the making of the late application. 13 The respondents submitted that the proposed amended summons referred for the first time in the proceedings to contracts made in February 2003, that any such contract came to an end in December 2004 and was therefore time-barred by s 108B. The applicant responded by asserting that, in effect, any and all contracts, related conditions or collateral arrangements that were made in February 2003 were contemplated by and within the proceedings constituted by the amended summons. 14 In order to resolve the controversy between the parties, it is necessary to determine what was the subject matter of the amended summons. I commence by referring to Rule 18A (1) of the Rules of this Court. They are in the following terms: 18A New procedure under section 106 (Unfair contracts)

(1) An application to the Commission to exercise the powers conferred on it by section 106 must be in Form 12A and must: (a) specify in summary the matters of fact and law which form the basis of the application, but not the evidence by which those facts are to be proved, and (b) contain sufficient information to allow the Commission to carry out its duty to conciliate under section 109 by a succinct summary. 15 It will be noted that the Rule mandates the utilisation of Form 12A and requires specification in a summary manner of the matters of fact and law which form the basis of the application. 16 There is required within Form 12A specification of the nature of the claim and the contract or arrangement in respect of which the application is made. The use of the word "specify" would seem to require reference in a definite or explicit manner to the particular subject matter and a description of that matter in some detail. 17 The respondents submitted that the summary of matters of fact and law contained within the current amended summons was directed in effect only to the contract made in December 2004 by which the applicant was appointed general manager of the Amora Beach Resort. This is to be contrasted, it was said, with the subject matter of the proposed further amended summons which specifies and is said to be directed to not only the December 2004 contract but also the contract made on 7 February 2003 between the applicant and ADFA Jamison Pty Ltd. On this basis it was said that the applicant was, for the first time in the proceedings, seeking to impugn the 7 February 2003 contract, that that contract had come to an end in December 2004 when the applicant accepted employment in Phuket and that the proceedings with respect to the February 2003 contract were therefore time-barred by s 108B of the Act. 18 The applicant responded, in essence, by asserting that the amended summons in its current form is framed in sufficiently wide terms to accommodate and cover within its scope the precise identification of the several contracts, arrangements, related conditions and collateral arrangements which are specified in the proposed further amended summons and upon which the applicant now says she relies and, presumably, has always relied. Indeed, in written submissions the applicant's counsel conceded that the current form of the amended summons "suffered from a lack of specificity….to a large extent, necessitated by the complex array of interwoven relationships between the Applicant and the various Respondents which arose as a consequence of the manner in which the Respondents, primarily the third Respondent, chose to conduct the business, or businesses, in which the applicant was engaged to perform work. The pleadings were deliberately cast in terms wide enough to embrace each of the contracts, arrangements, related conditions or collateral arrangements between the Applicant and the Respondents which are now particularised…." 19 I have some sympathy for the approach taken by the respondents in their reading of the current amended summons. The summary of matters of fact and law is directed, essentially, to the contract by which the applicant became employed at the Amora Beach Resort. The unfairness that is asserted in the amended summons concerning "the contract" is directed substantially to the conduct of the respondents in and about the administration of that contract as it affected the applicant and in and about the termination of her employment. The only exception is an allegation that "the contract did not provide that the Amora Beach Resort would remain under the management of the fifth respondent throughout the duration of the applicant's Assignment." 20 In the context of the use of the word "assignment", I should add for completeness that the amended summons in its current form describes the contract of employment relating to the applicant's employment at the Amora Beach Resort as being an "assignment contract". This is a reference to the use of the word "assignment" in the contract itself and a reference to that word in communications between the various respondents including representatives of the fifth respondent. However, it is arguable that the word "assignment" is used in the context of a particular task rather than describing a process involving some form of transfer. I do not state this in any concluded sense, but only to demonstrate that the respondents' understanding of the case that the applicant sought to make out against them as relied upon for the purpose of this interlocutory application is a reasonable one. 21 As against this position, however, it is clear that the amended summons in its current form does refer to "the contract, arrangement or collateral arrangement between the applicant and the respondents…." which is sought to be declared unfair. To some extent, it is possible, with the assistance of hindsight and having regard to what is now known of the applicant's contentions with respect to these proceedings, to read the summary of the matters of fact and law in a way that is capable of comprehending the various contracts, arrangements, related conditions and collateral arrangements identified in the proposed further amended summons. Reading the document in this way involves incorporating, within the overall narration of the matters of fact and law, the concept that there was an assignment, in the sense of a transfer, of the applicant's employment from the Jamison Hotel Sydney to the Amora Beach Resort, Phuket within the overall purview of administration by Rydges Hotels and Resorts. Read in this way, the 7 February 2003 contract of employment may arguably be comprehended within the contract sought to be impugned albeit referred to cryptically, incompletely and inelegantly. 22 It is well established by authority in this Court that it is not a Court of strict pleading. A failure to comply with Rule 18A and, indeed, a failure to sufficiently particularise the claims made within a summons does not ipso facto result in the summons being regarded as a nullity. Indeed, it is my observed practice in this Court and its predecessors that for many years the manner in which initiating process for proceedings under s 106 of the Act and its predecessors have been framed has been of little consequence. It was only when a time-bar was introduced with the enactment of s 108B that matters of drafting assumed significance. 23 Having regard to this controversy in simplistic terms, the choice is between compelling the applicant to continue to proceed on the basis of a strict reading of the summary of matters of fact and law and the allegations of unfairness contained within the amended summons as currently drafted or allowing the applicant to vary that amended summons in a manner that is arguably consistent with a generous construction of its provisions in terms of the amendments sought to be made. 24 In determining this matter, I proceed having regard to the fact that this is not a Court of strict pleading and that the amended summons as currently drafted seeks to impugn a contract, arrangement or collateral arrangement unspecified but nevertheless capable, on a generous reading, of being identified in the summary of matters of fact and law. In making this assessment, I have concluded that it is not impossible to extract from the provisions of the amended summons in its current form sufficient material to enable the various matters to be fleshed out in the manner contended for by the applicant in seeking to further amend the summons in the manner indicated. This includes accommodating the various contracts etc described as "the contract" in the current amended summons. 25 It follows that I cannot be satisfied that the contract as defined in s 105 of the Act upon which the applicant now seeks to rely, as referred to in the proposed further amended summons, is not comprehended within the contract, the subject of the current amended summons. Accordingly, I cannot be satisfied at this stage that s 108B would preclude making the amendments sought. 26 The second to fourth respondents sought to argue that any amendment would be futile because the contract as defined by s 105, the subject of the proposed further amended summons, would not be amenable to jurisdiction and power because it did not have the necessary nexus with New South Wales. This is the subject of a substantive interlocutory application that remains part heard, and for this reason I shall not deal with this aspect in terms of the application to amend. Obviously, it remains open to the second to fourth respondents to continue to press this jurisdictional point even after the proceedings have been amended as sought. 27 The second to fourth respondents also raised in submissions the argument that the amendment would be futile because even if the applicant were permitted to amend, the 7 February 2003 contract had come to an end at the time of the making of the December 2004 contract. Accordingly, they could not be said to be collateral but were "sequential". As I understand the applicant's case, it is that there was an overall arrangement accommodating the "assignment" of the applicant to work within different hotels within the Rydges management group and that that arrangement persisted, at least until the termination of the December 2004 contract and, perhaps, afterwards. In these circumstances, it is not appropriate that I consider this argument in the context of the application to amend. Such a matter needs to be considered at an "appropriate" time, that is when there is a sufficient factual basis established by evidence, properly admitted or agreed, to enable such a matter to be determined. The second to fourth respondents may raise arguments as to jurisdiction and the like at any appropriate stage in the proceedings. 28 Accordingly, I propose to grant leave to the applicant to amend the proceedings in the form of the further amended summons for relief to which I have referred. For obvious reasons, including the need to consider whether the respondents have thrown away any costs by reason of the amendment, I shall reserve costs.

Orders 29 I make the following orders: 1) The applicant is granted leave to amend the summons in the form of the further amended summons for relief filed 17 November 2006. 2) Costs are reserved with liberty to apply.

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