(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.