Linda Iris Neeson v Amora Company Ltd and Ors

THIRD RESPONDENT: Tanapun Siriphatrawan

FOURTH RESPONDENT: Philip Johnson

CORAM: Boland J President; Walton J Vice-President; Schmidt J

Appeal - Leave to appeal - Unfair contract - Appeal from interlocutory judgment dismissing further amended summons for relief on the ground that there was no relevant contract or arrangement that involved or concerned in an industry in and of New South Wales - Substantive challenge was to factual findings at first instance - No error - Leave to appeal refused. CATCHWORDS: Unfair contract - Appeal - Leave to appeal - Appeal from interlocutory judgment dismissing further amended summons for relief on the ground that there was no relevant contract or arrangement that involved or concerned in an industry in and of New South Wales - Substantive challenge was to factual findings at first instance - No error - Leave to appeal refused.

LEGISLATION CITED: Industrial Relations Act 1996 ss 106, 187, 188

Linda Iris Neeson v Amora Company Limited & ors [2007] NSWIRComm 25 Neeson v Amora Company Limited and ors (No 2) [2007] NSWIRComm 139 CASES CITED: Virtue v New South Wales Department of Education and Training (1999) 92 IR 428 Rose v Meriton Apartments Pty Ltd and anor [2007] NSWIRComm 264 Neeson v Amora Company Limited and ors (No 3) [2007] NSWIRComm 166

APPELLANT: Mr J V Murphy of Counsel Solicitors: Mr C J McArdle McArdle Legal

LEGAL REPRESENTATIVES: FIRST RESPONDENT: Unrepresented

SECOND, THIRD & FOURTH RESPONDENTS: Mr S E J Prince of Counsel Solicitors: Mr S J Booth Coleman & Greig

CORAM: BOLAND J, PRESIDENT WALTON J, VICE-PRESIDENT SCHMIDT J

Application by Linda Iris Neeson for leave to appeal and appeal from an interlocutory judgment of Justice Marks given on 5 July 2007 in Matter No IRC 3417 of 2005

1 This is an application by Linda Iris Neeson ('the appellant') for leave to appeal and, if leave is granted, to appeal from an interlocutory judgment of Marks J in Neeson v Amora Company Limited and ors (No 3) [2007] NSWIRComm 166 given on 5 July 2007. In that judgment his Honour dismissed the appellant's further amended summons for relief made pursuant to s 106 of the Industrial Relations Act 1996 on the basis that there was no relevant contract or arrangement which involved or concerned an industry in and of New South Wales and, therefore, there was no jurisdiction in the Court to hear and determine the summons. The applications for leave to appeal and appeal were made pursuant to ss 187 and 188 of the Industrial Relations Act. 2 On 6 March 2008, when the matter came before the Full Bench, we indicated to counsel for the appellant that we would hear him both as to leave and to the merits of the appeal. Having done so, we called upon counsel for the respondent to address the Full Bench on leave, but made it clear that if counsel considered it necessary to address any merit issue raised by the appellant, he was free to do so. Having heard the parties, the Full Bench decided to refuse leave to appeal. 3 What follows is a brief explanation of the relevant facts, the trial judge's treatment of the issues at first instance, the appeal grounds and our reasons for refusing leave. Factual background

4 There were four respondents to the appeal: Amora Company Limited ('first respondent'); Amora Group Pty Ltd ('second respondent'); Dr Tanapun Siriphatrawan ('third respondent'); and Mr Philip Johnson ('fourth respondent').

5 The first respondent was a company incorporated in Thailand. The second respondent was an Australian company, whose principal place of business is Melbourne, Victoria. The third respondent was the owner and chief executive officer of the first respondent and held 50 per cent of the shares in the second respondent. The fourth respondent was the chief operating officer of the first and second respondents. It should be mentioned at this stage, that Amalgamated Holdings Ltd ('AHL'), was an Australian owned and operated entertainment, hospitality and leisure company incorporated under Australian law. The hospitality division of AHL was Rydges Hotels & Resorts ('Rydges'), which managed hotels owned by the third respondent, under a management agreement. AHL was originally the fifth respondent in the proceedings at first instance, but a settlement was reached on 16 December 2005 between Ms Neeson and AHL and Ms Neeson discontinued proceedings against that respondent. A notice of discontinuance against AHL was filed by consent on 13 February 2006. 6 On 21 February 2006, the appellant consented to the dismissal motion being dealt with as a preliminary point. 7 The appellant commenced employment in the position of Executive Assistant Manager of the Rydges Jamison Hotel in Sydney in February 2003. Although managed by Rydges, the Rydges Jamison Hotel was owned by ADFA Jamison Pty Limited, a company wholly owned by the third respondent. Whilst ADFA Jamison paid the appellant her salary, there remained a controversy over the identity of the appellant's employer - ADFA Jamison or AHL through its Rydges Division. Marks J did not determine that controversy in his Interlocutory Judgment of 5 July 2007. 8 In November 2004, the appellant engaged in negotiations for what she described as a "promotion to the position of General Manager of the Amora Beach Resort" in Phuket, Thailand. This hotel was also owned by the third respondent and managed by Rydges. It was the appellant's evidence that her appointment to the position at the Amora Beach Resort was subject to the final approval of the third respondent. The offer of the General Manager's position was subsequently made to the appellant in late November 2004 by the fourth respondent "on behalf of Phatara Beach Resort Company Limited", which owned the Amora Beach Resort and which was another company owned by the third respondent. The appellant accepted the appointment and signed a contract on 19 December 2004. The fourth respondent, on behalf of the third respondent, also signed the contract. The appellant was paid accrued entitlements for her period of employment at the Rydges Jamison Hotel. 9 The appellant claimed that it was represented to her that the position in Thailand was a two-year expatriate assignment within the Rydges group, which carried with it the responsibilities and benefits of the AHL International Assignment Policies including the right to return to AHL in Australia at the end of the assignment. 10 The appellant commenced in her position of General Manager of the Amora Beach Resort on 23 December 2004. On 26 December 2004 the tsunami that caused great damage and loss of life in South-East Asia hit the Resort. The appellant and her husband survived. The appellant continued to manage the Resort with much of the work involving post-tsunami rectification. 11 The appellant stated that she reported regularly to Mr Paul Lonergan, Rydges' Managing Director Hospitality and Leisure. On 2 February 2005 the appellant was advised that a management agreement in respect of the Amora Beach Resort between Rydges and a company owned by the third respondent had expired. 12 On 8 April 2005 the appellant was advised her employment was to be terminated. No reasons for the decision were provided to the appellant. On 15 April 2005 the fourth respondent, on behalf of the first respondent and on instructions from the third respondent, terminated the employment of the appellant. The appellant was advised, "the company has decided not to pass you through your probationary period as General Manager". That probationary period had expired on 21 March 2005, at about which time the appellant was advised by the fourth respondent that she had passed the probationary period. On 30 June 2005 the appellant initiated proceedings by filing a summons for relief pursuant to s 106 of the Act. 13 On 20 July 2005, the second to fourth respondents filed a Notice of Motion seeking to have the proceedings dismissed on the basis that there was no sufficient territorial nexus between New South Wales and the work performed under the contract impugned as unfair by the appellant. 14 The summons was subsequently amended on 26 August 2005. On 17 November 2006 the appellant filed a further amended summons and in an interlocutory judgment given on 16 February 2007 Marks J gave leave to further amend the summons: Linda Iris Neeson v Amora Company Limited & ors [2007] NSWIRComm 25. 15 The further amended summons identified a number of contracts, arrangements, related conditions or collateral arrangements that were sought to be attacked in the proceedings: (1) An order declaring that the contracts, arrangements, related conditions or collateral arrangements between the Applicant and the Respondents under which the Applicant performed work for the Respondents in the hotel industry (" the Contracts ") were unfair, harsh, unconscionable and/or contrary to public interest. Such Contracts include, but are not limited to: (a) the contract of employment between the Applicant and ADFA Jamison Pty Ltd made on, or about, 7 February 2003;

(b) the contract of employment between the Applicant and the Third Respondent made on, or about, 7 February 2003 or, in the alternative, the collateral arrangement between the Applicant and the Third Respondent which arrangement was collateral to the contracts specified in (1)(a) above and/or (1)(c), (1)(d), (1)(f), (1)(g), (1)(h) and/or (1)(i) below;

(c) the contract of employment between the Applicant and the Fifth Respondent entered into on, or about, 7 February 2003 or, in the alternative, the collateral arrangement between the Applicant and the Fifth Respondent which arrangement was collateral to the contracts specified in (1)(a) and/or (1)(b) above and/or (1)(d), (1)(f), (1)(g), (1)(h) and/or (1)(i) below;

(d) the contract of employment between the Applicant and ADFA Jamison Pty Ltd and the Fifth Respondent, as joint employers of the Applicant, entered into on, or about, 7 February 2003;

(e) the collateral arrangement between the Applicant and the Third Respondent whereby the Third Respondent induced the Applicant to relocate to Thailand, such arrangement being collateral to the contracts of employment specified in (1)(a) and/or (1)(b) and/or (1)(c) and/or (1)(d) above; (f) the contract of employment entered into between the Applicant and Phatara Beach Resort Company Limited (subsequently the First Respondent) in December 2004 and known as the " Assignment Contract " or, in the alternative, the collateral arrangement entered into between the Applicant and Phatara Beach Resort Company Limited (subsequently the First Respondent) in December 2004, such arrangement being collateral to the contracts specified in (1)(a), (1)(b), (1)(c) and/or (1)(d) above, and/or (1)(g), (1)(h) and/or (1)(i) below. This Assignment Contract incorporated within in it the terms of the document titled " Amalgamated Holdings Limited ("AHL") Short-Term and Long-Term International Assignment Policies ";

(g) the contract of employment entered into between the Applicant and the First Respondent in December 2004 or in the alternative, the collateral arrangement entered into between the Applicant and the First Respondent in December 2004, such arrangement being collateral to the contracts specified in (1)(a), (1)(b), (1)(c), (1)(d) and/or (1)(f) above and/or (1)(h) and/or (1)(i) below;

(h) the contract of employment entered into between the Applicant and the Second Respondent in December 2004 or in the alternative, the collateral arrangement entered into between the Applicant and the Second Respondent in December 2004, such arrangement being collateral to the contracts specified in (1)(a), (1)(b), (1)(c), (1)(d), (1)(f) and/or (1)(g) above and/or (1)(i) below;

(i) the contract of employment entered into between the Applicant and the Third Respondent in December 2004 or in the alternative, the collateral arrangement entered into between the Applicant and the Third Respondent in December 2004, such arrangement being collateral to the contracts specified in (1)(a), (1)(b), (1)(c), (1)(d), (1)(f), (1)(g) and/or (1)(h) above. First interlocutory judgment 16 On 13 June 2007, Marks J gave an interlocutory judgment in which his Honour provided to the appellant more time to obtain further evidence by summons and discovery but limited to the question of territorial nexus: see Neeson v Amora Company Limited and ors (No 2) [2007] NSWIRComm 139. The issue of further evidence arose in the course of his Honour hearing the dismissal motion. At [5] his Honour stated: [5] The hearing of the notice of motion was conducted on the basis that both parties would provide such evidence as they wished going to the question of jurisdiction and, consistent with the usual practice, that evidence would be considered by the Court at its highest in favour of the applicant. Indeed, in written submissions filed on 31 August 2006, Mr Murphy said: "The Applicant submits that taking the Applicant's evidence at its highest, there is evidence available to the Applicant which is capable of establishing the relevant nexus to New South Wales, no matter which way one characterises the contractual relationship between the parties." The proceedings were conducted on this basis until the time came for concluding submissions when Mr Murphy announced, for the first time, that the Applicant might wish to avail herself of the opportunity of introducing further evidence. I shall return to this aspect later in these reasons for judgment. 17 In the course of closing submissions, as his Honour noted at [11], counsel for the appellant submitted that whilst the appellant had put in evidence about what she was aware, in the normal course of litigation the appellant intended to issue subpoenas and orders for discovery. 18 At [21] his Honour stated: 21 … As they commenced, and during the course of a number of days of hearing including the taking of oral evidence, both the Court and the respondents understood that the relevant basis was that all of the evidence adduced would be taken at its highest in favour of the applicant and that the proceedings would be determined on this basis. It was not until the dying stages that the applicant recanted, indicating that she wished to pursue further evidence by way of discovery and the issue of summonses for production. Whether and to what extent the applicant has some particular evidentiary material in mind has not been revealed. However, the course of the proceedings, including the cross-examination by Mr Murphy of the respondents' witness would not appear to give any clue as to the nature of any such documentation. 19 At [24] Marks J indicated his intention to stand over the final determination of the interlocutory proceedings to allow the appellant an opportunity to pursue the issue of summonses for production and discovery (limited to documents that had appropriate relevance to the territorial nexus issue between the parties). Orders were made accordingly. 20 In his Honour's judgment of 5 July 2007, in which his Honour dismissed the further amended summons, it was noted at [4]-[5]: 4 At the conclusion of submissions, a reference was made by Mr Murphy, counsel for the applicant, to the fact that the applicant would wish to issue summonses for the production of documents and orders for discovery. Submissions made by Mr Murphy, which I have set out in my previous judgment, were capable of being construed as an assertion that the Court should not consider the strike-out application at that time because not all of the available evidence was before the Court. For this reason, I directed that the proceedings stand over and that the applicant take such steps as she wished to issue summonses for production and to initiate the discovery of documents so that the interlocutory application might be dealt with appropriately and to finality. That judgment was delivered on 13 June 2007. 5 By letter dated 15 June 2007, addressed to my associate, the applicant's solicitor said, inter alia, "….it is the position of the Applicant that the Respondent's strike-out motion should be determined by his Honour on the basis of the evidence and submissions already before his Honour. It is not the intention of the Applicant, at this stage of the proceedings, to issue any summonses for production or to initiate any discovery process." Mr McArdle also clarified the intention of Mr Murphy's submissions in a manner that is consistent with the applicant's position, which I have extracted above. I now propose to proceed accordingly. 21 Marks J proceeded on the basis that the evidence in the interlocutory proceedings was to be taken at its highest in favour of the appellant. Interlocutory judgment dismissing further amended summons for relief 22 As we noted at the outset, Marks J dismissed the further amended summons for want of jurisdiction. In his judgment at [34] Marks J summarised the evidence as follows: 1) The applicant commenced employment as Executive Assistant Manager of the Rydges Jamison Sydney Hotel in February 2003. At that stage she was either an employee of ADFA Jamison Pty Ltd, which is not a respondent to the proceedings, or of AHL, which is no longer a respondent to the proceedings. There is no suggestion that the first, second, third or fourth respondents are parties to any such contract of employment.

2. There was an arrangement made in February 2003 between AHL and the applicant to the effect that there would be provided from time to time to the applicant opportunities for advancement within and assignment to work in hotels managed from time to time by the Rydges division. There is, however, no evidence that any of the first, second, third or fourth respondents was a party to any such arrangement. Accordingly, any such arrangement for the purpose of these proceedings was between the applicant and the fifth respondent only.

3. A contract of employment commenced between the applicant and either the first or second respondents pursuant to which the applicant would become employed as General Manager of the Phatara Beach Resort in Phuket.

4. A contract or alternatively an arrangement was made between the applicant and the fifth respondent pursuant to which the applicant would work as General Manager at the Phatara Beach Resort in Phuket. 23 His Honour observed at [40] that there was no evidence of any communication of any kind between the appellant and any of the persons or entities representing, or being, the second to fourth respondents, about any arrangement. That is, his Honour said: [T]here is no evidence of any discussion, negotiation or exchange of ideas with these respondents or their representatives that deals in any way with any notion of continuing employment opportunities within the Rydges group. All of the evidence concerning all of the interaction between the applicant and the second to fourth respondents revolved around and was concerned solely with her engagement as General Manager of the Phatara Resort in Phuket. 24 At [42] Marks J indicated that "the time has come for the applicant to be confined to the contracts, arrangements, related conditions and collateral arrangements upon which she relies for the purpose of these proceedings, which were commenced in 2005." Accordingly his Honour considered the matter on the basis of the nine alternative contracts arrangements, related conditions or collateral arrangements as described in the further amended summons and was not prepared to countenance the prospect of the existence of other contracts, etc. 25 His Honour's consideration of the nine pleaded contracts and arrangements was set out at [43]: a) This is a contract of employment between the applicant and ADFA Jamison Pty Ltd. The applicant asserts in the further amended summons for relief that it did not come to an end when the applicant left her employment at the Rydges Jamison Sydney Hotel and became employed in Phuket. It is not necessary that I determine that issue for the purpose of these interlocutory proceedings. It is sufficient to note that ADFA Jamison Pty Ltd is not a party to these proceedings and it is therefore unnecessary to refer any further to this contract, which is beyond the scope of any orders that may be made under s 106. (b) This refers alternatively to a contract of employment or a collateral arrangement between the applicant and Dr Tanapun made on about 7 February 2003. This is the time when the applicant commenced work at the Rydges Jamison Sydney Hotel. There is no evidence of any arrangement in the terms to which I have referred between the applicant and Dr Tanapun. There was evidence that the applicant expressed an interest in working again in Thailand, but there is no evidence of any mutuality or understanding between her and Dr Tanapun with respect to any arrangement concerning employment in the future in Thailand beyond a vague possibility that this might occur.

(c) This refers to a contract of employment or alternatively a collateral arrangement between the applicant and the fifth respondent. The fifth respondent is no longer a party to the proceedings and it is unnecessary to consider this contract.

(d) This refers to a contract of employment between the applicant and ADFA Jamison Pty Ltd and AHL as joint employers. Neither of those entities is a party to the proceedings and it is unnecessary to consider that contract any further.

(e) This is said to be an arrangement that is collateral to, presumably, the contracts of employment to which I have earlier referred. Again, there is no evidence of any arrangement, in the sense required, made between the applicant and Dr Tanapun.

(f) This is a reference substantially to the contract of employment entered into between the applicant and the first respondent by which she was employed at the Phatara Beach Resort. It is this contract that is said to incorporate within its terms a number of policies formulated by AHL. It is described alternatively as a collateral arrangement.

(g) This seems to be the same contract or collateral arrangement described in (f). I am unable to discern any difference between the two.

(h) This appears, as an alternative, to assert that the contract of employment by which the applicant became employed to work at the Phatara Beach Resort was made between herself and the second respondent, Amora Group Pty Ltd.

(i) Again, this appears to be an alternative position to that put in paragraphs (f) and (g). The allegation here is that the contract of employment or collateral arrangement by which the applicant worked at the Phatara Beach Resort was between herself and Dr Tanapun. 26 At [44]-[61] Marks J considered the question of the territorial nexus. After referring to relevant authorities his Honour found at [60]-[62]: 60 In circumstances where the applicant's employer and the second to fourth respondents did not, on the evidence, carry on any business in New South Wales, and the applicant in any event was employed solely in and about the operation of the resort in Phuket, it is difficult to conclude that her contract of employment was one which involved or concerned an industry in and of New South Wales. The resort may have had representation in New South Wales as part of its marketing activities through AHL, at least when the applicant's contract of employment commenced, but this does not render the applicant's contract of employment as having the necessary territorial nexus with New South Wales. Obviously, the Phuket resort dealt with the outside world in terms of marketing and the like but this does not per se make it part of an industry in and of New South Wales. The readily available and vast means of communication throughout the world using the services of the internet may tend to deflect attention away from the principal matters to be considered in determining whether there is sufficient territorial nexus to found jurisdiction. Whilst it might be tempting to say that one is dealing with the outside world and, for example, operating in the US when purchasing books from Amazon.com whilst using a computer in Sydney, this does not necessarily mean, for the purpose of any sufficient territorial nexus, that the person concerned is actually carrying on business in the US. 61 I repeat that, on the evidence taken at its highest, that the work performed by the applicant in her role of General Manager of the Phatara Beach Resort under a contract of employment made with either the first or second respondents was carried out totally by her in Thailand in a business which provided resort and hotel facilities entirely in Thailand. Tangential or incidental communications between the applicant and persons within the State of New South Wales are not sufficient, in my opinion, to enable her contract of employment to be characterised as one being in and of an industry in New South Wales. The factual circumstances in these proceedings are, in my opinion, relevantly different from the situation of an employee who is required to perform work under or pursuant to the one contract of employment in more than one place, that is, sometimes within and sometimes outside New South Wales. Those were the circumstances that applied, for example, in the Old UGC litigation. The applicant was employed in an industry in and of Thailand. 62 I would therefore conclude that the second to fourth respondents have satisfied the test to justify the strike-out of these proceedings on the basis of the evidence, taken at its highest in favour of the applicant, directed to the contracts and arrangements which may be considered for the purposes of the further amended summons for relief. 27 Marks J made the following orders: 1) The further amended summons is dismissed. 2) Costs are reserved. 3) Liberty to apply with respect to costs. Appeal grounds

28 There were 15 grounds of appeal. However the grounds may be condensed into the following propositions: (1) his Honour made 'serious factual errors' upon which his Honour's decision was based; (2) his Honour's approach involved a substantial departure from the principles established by this Court in Bell and Berg v Macquarie Bank Limited (1999) 93 IR 191 concerning the extra-territorial effect of s 106 of the Act. 29 The findings which were alleged by the appellant to be 'serious factual errors' were: (a) there was no suggestion that the first, second, third or fourth respondents were party to the contract of employment whereby the appellant commenced working in Sydney in 2003 at the Rydges Jamison Hotel for either ADFA Jamison Pty Limited or AHL: it was submitted that the finding was against the weight of the evidence; (b) that there was no evidence of any contract in the same terms as the ADFA Jamison or AHL employment contract between the appellant and the third respondent; (c) there was no evidence that the second to third respondents were a party to a possible arrangement made in February 2003 between the appellant and AHL to the effect that from time to time she would be given opportunities for advancement within and assignment to hotels managed by AHL; (d) his Honour erred in finding there was no evidence of any communication of any kind between the appellant and AHL pursuant to which the appellant would work as the General Manager at the Rydges Amora Beach Resort in Phuket; (e) his Honour made a finding against the weight of the evidence that the third respondent was not a party to the contract of employment whereby the appellant commenced working in Sydney in 2003 at the Rydges Jamison Hotel, for either ADFA Jamison Pty Limited or AHL. 30 As the respondents submitted, the only particular criticism of his Honour's approach to the settled authorities concerning the extra-territorial effect of s 106 of the Act, was a criticism that his Honour's analysis was 'flawed', because those authorities dealt with proper law of the contract.

31 As we have indicated, the Full Bench has decided to refuse leave to appeal. No issue of law or principle arises in the appeal. In truth, the only substantive challenge made by the appellant was to his Honour's factual findings and in that respect we are unable to discern any error.

32 As it was stated in Virtue v NSW Department of Education and Training (1999) 92 IR 428 at 447-448 as approved by the Full Bench in Rose v Meriton Apartments Pty Ltd and anor [2007] NSWIRComm 264 at [33], whilst it is desirable for a threshold objection to a matter proceeding (for want of jurisdiction or reasonable cause of action) to be determined at an early stage, it is only open to do so at the appropriate stage of the proceedings. That is, where the facts, either established by evidence or plainly agreed in terms, enable the Court to determine what the contract or arrangement is or, at least, the parameters of the contract or arrangement. In other words, unless the facts are sufficiently established to enable the Court to be satisfied it has the necessary material to reach a clear and final decision on the question, then the appropriate stage has not been reached for such a determination to be made.

33 We note that Marks J was particularly careful to ensure the appellant was provided with every opportunity to adduce evidence relating to the territorial nexus question and that his Honour adopted the correct approach to resolving the interlocutory issue raised by taking the evidence in the interlocutory proceedings at its highest in favour of the applicant. It should be added that not only did his Honour receive all of the evidence relied upon by the appellant regarding jurisdiction, but there was also evidence on from Mr Philip Johnson, (the fourth respondent), for the respondents, which went to the jurisdictional issue. Both the appellant and Mr Johnson gave oral evidence before his Honour and were subject to cross-examination. 34 It appears to us, therefore, that the facts were "sufficiently established to enable the Court to be satisfied it has the necessary material to reach a clear and final decision on the question…" of whether or not the proceedings were within jurisdiction.

35 In relation to the contracts pleaded in paragraphs (1)(a) - (1)(e) of the further amended summons for relief, the effect of his Honour's findings is set out below: (1) The contract pleaded in (1)(a) was a contract between the appellant and ADFA Jamison Pty Ltd made on, or about, 7 February 2003. The further amended summons sought: an order declaring the contract unfair, unconscionable and/or contrary to the public interest; an order declaring the contract to be void in whole or in part, or varying the contract in whole or in part either from its commencement or from some other time; and an order varying the contract so as to insert into it ab initio matters significantly varying its terms. However, ADFA Jamison was not a party to the proceedings, making it objectionable for the Court to exercise its jurisdiction in respect of the pleaded contract. (2) The evidence did not disclose the possible existence of a contract of employment between the appellant and third respondent as pleaded in paragraph (1)(b) allegedly made on or about 7 February 2003. Further, the evidence did not disclose the possible existence of a collateral arrangement between the appellant and third respondent as pleaded in paragraph (1)(b). The mere fact that the third respondent owned ADFA Jamison and the Hotel in which the appellant worked did not constitute an employment contract between the two individuals. Further, the fact that there were conversations from time to time between the appellant and the third respondent about the appellant's interest in a position in Thailand falls well short of being a transaction or understanding amounting to an arrangement that the third respondent undertook to fulfil the appellant's desire to work in Thailand.

(3) There was no fifth respondent as pleaded in paragraph (1)(c) and AHL (which had originally been named as the fifth respondent but in respect of which proceedings had been discontinued because a settlement had been reached) was not a party to the proceedings, notwithstanding that orders were sought: declaring the contract between AHL and the appellant unfair, unconscionable and/or contrary to the public interest; declaring the contract or collateral arrangement to be void in whole or in part and varying the contract or arrangement so as to insert into it ab initio matters significantly varying its terms. Exercise of the Court's jurisdiction in those circumstances was objectionable. (4) The contract of employment pleaded in paragraph (1)(d) was between the appellant and ADFA and AHL, as joint employers of the appellant and allegedly entered into on or about 7 February 2003. For the same reasons as those expressed in (1) and (3) hereof, the exercise of the Court's jurisdiction in relation to that contract was objectionable. (5) There was no evidence that would support a finding as to the possible existence of a collateral arrangement as pleaded in paragraph (1)(e) between the appellant and the third respondent whereby the third respondent allegedly induced the appellant to relocate to Thailand. 36 His Honour's findings in relation to paragraphs (1)(a) - (1)(e) were reasonably open to him on the evidence and, indeed, we agree with those findings. 37 As to the contracts of employment pleaded in (1)(f), (g) and (h) of the further amended summons, these were contracts said to have come into existence in December 2004. It is those contracts which Marks J found did not have the requisite connection with New South Wales. His Honour's reasoning in that respect was that:

· it was uncontroversial that all of the work, which the appellant was required to perform as part of her duties as General Manager of the Resort, was undertaken in Thailand. She was not required to leave Thailand to perform any of her work; · the appellant was required to and did report on a regular basis to AHL personnel in Sydney; · there were features of the written contract of employment with respect to the appellant's employment at Phatara Beach Resort and there were features of her discussions and negotiations with AHL personnel which, taken at its highest, would import AHL protocols and procedures into her contract of employment; · it was clear from responses received by the appellant from AHL personnel that the person she directly reported to and the person who exercised direct supervisory authority over her was Mr Johnson, who was located in Melbourne and, ultimately, the third respondent; · in circumstances where the appellant's employer and the second to fourth respondents did not carry on any business in New South Wales, and the appellant was employed solely in and about the operation of the resort in Phuket, it was difficult to conclude that her contract of employment was one which involved or concerned an industry in and of New South Wales; · the resort may have had representation in New South Wales as part of its marketing activities through AHL, at least when the appellant's contract of employment commenced, but that did not render the appellant's contract of employment as having the necessary territorial nexus with New South Wales; · tangential or incidental communications between the appellant and persons within the State of New South Wales were not sufficient to enable the appellant's contract of employment to be characterised as one being in and of an industry in New South Wales; and · the appellant was employed in an industry in and of Thailand.

38 We are unable to find any error in his Honour's findings that the contracts pleaded in paragraphs (1)(f), (g) and (h) did not have the requisite connection with New South Wales; for the reasons given by his Honour they were not contracts whereby work was performed in any industry in and of New South Wales.

39 Marks J does not appear to have made a specific finding about the contract or collateral arrangement in paragraph (1)(i) of the further amended summons; that is, a contract or arrangement between the appellant and the third respondent made in December 2004. Nevertheless, the evidence does not support a finding that such a contract or collateral arrangement existed. 40 At the conclusion of proceedings on 6 March 2008, there was an exchange between the Full Bench and counsel regarding costs. Counsel for the respondents sought time to obtain further instructions. Consequently, the respondents were given seven days to file submissions on the question of costs if it were decided that were necessary, with a further seven days for the appellant to reply. No submissions have been received. We, therefore, propose to make the usual order (which was accepted as the appropriate order to be made by the appellant.) No issue arose on the appeal as to the question of costs at first instance.

41 The Full Bench makes the following orders: (1) Leave to appeal is refused. (2) The appeal is dismissed.

(3) The appellant shall pay the respondents' costs of the appeal in a sum as agreed or assessed.

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