(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.