An Excess of Jurisdiction?
84Whether the Industrial Court has jurisdiction to grant the relief sought by Mr Rose does not necessarily depend solely on the terms of his summons. Nonetheless, it is the summons that sets out the relief sought by Mr Rose in the Industrial Court and, in compliance with r 18A of the Industrial Relations Commission Rules 1996 (now repealed by the Industrial Relations Commission Rules 2009), summarises the Matters of Fact and Law which form the basis of the application for relief. The summons is therefore the appropriate starting point.
85The declaration and orders sought by Mr Rose (see [6] above) identify the " contract " in respect of which relief is sought as consisting of the April Deed and:
"additionally ... a contract or collateral arrangement between (Owners Corporation] and [Regis Towers] whereby [Mr Rose] performed work in an industry ..."
Despite the reference to " collateral arrangement ", there is nothing in the prayers for relief to indicate that the relevant contract or arrangement between Owners Corporation and Regis Towers consists of anything other than the Caretaker Agreement. That conclusion is reinforced by the Matters of Fact and Law, which refer only to the April Deed and the Caretaker Agreement.
86It was common ground that an applicant may seek relief under s 106 of the IR Act in respect not only of a contract in the strict legal sense, but also in respect of an " arrangement, or any related condition or collateral arrangement ", as contemplated by the definition of " contract " in s 105. In Fish v Solution 6 Holdings Ltd [2006] HCA 22; 225 CLR 180, it was pointed out that it is the arrangements, both contractual and non-contractual, whereby a person performs work in an industry that the Industrial Court may avoid or vary: at 195 [41], per Gleeson CJ, Gummow, Hayne, Callinan and Crennan JJ. As their Honours observed, while the notion of avoiding an unenforceable arrangement may be " awkward ", determining that some new arrangement will obtain for the future " presents no such awkward juxtaposition of ideas ". Thus Mr Rose, if the facts supported his claim, could have sought relief in respect of an " arrangement ". He also could have alleged that he was party to the arrangement, even though he was not a party to either of the Caretaker Deeds. What is necessary to demonstrate that an applicant is a party to an informal or tacit arrangement or one that is non-contractual need not be explored.
87Mr Rose's summons does not refer either in the prayers for relief or the Matters of Fact and Law, to any contracts or arrangements other than the Caretaker Deeds. There is no reference, for example, to any agreement or arrangement which may have predated the Caretaker Deeds and to which Mr Rose may have been a party. Paragraphs 4 and 5 of the Matters of Fact and Law assert that Mr Rose personally bought units in the Complex and that " certain representations " were made by Meriton to Mr Rose, but these events are not said to be elements in any relevant arrangement.
88Nor does the summons allege that Mr Rose was a party to the Caretaker Deeds or to any collateral arrangement. The Matters of Fact and Law allege, somewhat obliquely, that the Caretaker Agreement was executed by the " hand of [Mr Rose] ". But the Caretaker Agreement on its face shows that Mr Rose signed in his capacity as a director of Regis Towers for the purpose of witnessing the affixation of the company's seal. Mr Street did not suggest that Mr Rose's signature in this capacity of itself made him a party to the Caretaker Agreement.
89In some circumstances, it might be possible to infer from the critical contractual documents the existence of facts which satisfy the jurisdictional requirements of Pt 9 of Ch 2 of the IR Act. For example, in Mayne Nickless v IRC , the terms of a deed under which a company agreed to provide pathology services made it clear that the services were in fact to be provided by a particular qualified pathologist (a director of the company). This was sufficient to demonstrate that the deed was a contract whereby a person performed work in an industry and thus to satisfy the jurisdictional requirement in s 106 of the IR Act (at 9-10 [49]-[50], per Mason P).
90As I have noted, Mr Rose's summons does not identify any contract or arrangement to which Mr Rose is said to have been a party. Moreover, the Caretaker Deeds contain nothing to suggest that they were components of a broader agreement or arrangement to which Mr Rose was a party, whereby he performed work in an industry. The Caretaker Agreement imposed duties on Regis Towers, which it was to perform " by its employees, contractors or agents " (cl 2, Sch 2). The Agreement did not require Mr Rose to perform any of the duties personally, although no doubt it was open to him to do so as an agent of the company. The Caretaker Agreement contemplated that Regis Towers could conduct its business from three nominated lots in the Complex, two of which had been purchased by Regis Towers as recorded in the April Deed. Regis Towers was required to sell or cause the Caretaker's Lots to be sold if Owners Corporation terminated the Caretaker Agreement (cl 9(1)). The Agreement said nothing about Mr Rose personally acquiring lots in the Complex.
91The only provision in the Caretaker's Agreement which appears to have contemplated that Mr Rose might carry out some of the duties imposed on Regis Towers was cl 27.2. This provided that the persons used by Regis Towers to carry out its duties, if they were not the principal directors or shareholders of the company, required approval from Owners Corporation. Whatever significance cl 27.2 might have for the purpose of satisfying s 106 of the IR Act, it does not suggest any antecedent or broader agreement or arrangement to which Mr Rose was a party.
92Mr Street relied on evidence that was before the Industrial Court to support what he said was the Full Bench's factual finding that there was an arrangement to which Mr Rose was a party (see [67]-[69] above). The Full Bench appears to have concluded that on the material before it it was arguable on the General Steel standard that there was an arrangement pursuant to which Mr Rose was to personally perform the work of a caretaker and was also to be " closely associated " as principal director and shareholder of Regis Towers with the execution of the Caretaker Agreement (at [40]).
93The Full Bench also appears to have concluded that it was arguable that Mr Rose was a party to the arrangement (at [32]). In this respect the Full Bench emphasised the uncontentious proposition that a " contract ", for the purposes of s 108 of the IR Act, is not limited to a " contractual agreement, in the conventional common law sense ". Later their Honours said (at [45]) that if an applicant for relief performs personal services " in order to fulfil relevant contractual obligations " and is instrumentally involved in the formulation of the contractual arrangements as a principal director, prima facie the applicant is a party to the arrangement.
94One difficulty with the Full Bench's approach, even on the General Steel standard, is that Mr Rose's summons does not identify any arrangement, other than the Caretaker Deeds, in respect of which he seeks relief or to which he was a party. Perhaps for this reason, the Full Bench did not make findings, on an arguable basis or otherwise, as to the parties to the arrangement, the terms of any arrangement (except to assert that there was a term that Mr Rose would personally perform work as a Caretaker) or the circumstances in which the arrangement was entered into.
95A second difficulty is that the Full Bench relied only on Mr Rose's summons and the terms of the Caretaker Deeds to reach its conclusions (at [41]-[42]). For the reasons already given, this material cannot support a conclusion that Mr Rose was a party to an agreement or arrangement antecedent to or outside the Caretaker Deeds. Their Honours' reasoning (at [45]) seems to assume that if a company engages a director to perform services the company is contractually obliged to provide to a third party, there is an arrangement between the director and the third party whereby the director is to perform the services. It is difficult to see why, at least in the absence of additional facts, that assumption is correct: see Production Spray Painting & Panel Beating Pty Ltd v Newnham (1991) 27 NSWLR 644, at 657, per Priestley and Handley JJA. Similarly it is difficult to see why the fact that the director has negotiated the terms of a contract between the company and a third party is capable of itself of creating an arrangement between the director and the third party.
96Mr Street attempted to overcome these difficulties by referring to various pieces of evidence that might support a claim by Mr Rose to be party to an agreement or arrangement whereby he performed work in an industry (that is, by discharging duties as a caretaker in the Complex). But not only is any such arrangement not identified in the summons, any claim by Mr Rose based on such an arrangement has never been formulated with any precision. Despite Mr Street's attempt to do so in oral argument (at [69] above), the terms of the arrangement, the parties to it and the circumstances in which it came into existence remain unclear. In my opinion, it is not enough to establish a sound jurisdictional basis for relief under Pt 9 of Ch 2 of the IR Act to point to evidence that might be relied on to support an as yet unformulated claim different to the claim currently being pursued.
97In any event, much of the evidence referred to by Mr Street is, at best, equivocal. For example, the conversations which Mr Rose said he had with Mr Londy, a real estate agent, seem to be no more than the usual interchanges between an agent eager to secure a sale and a potential purchaser rather than evidence of an arrangement. Mr Rose's own evidence as to the discharge of the duties specified in the Caretaker Agreement was that:
"[t]he day-to-day running of Regis Towers and the duties associated with the obligations under [Sch 2 of the Caretaker Agreement] are and have been carried out primarily by ... my wife [who is] a shareholder in [Regis Towers]."
98Mr Rose also appeared to acknowledge that all the Caretaker's Lots were owned by Regis Towers, although he said that he had personally provided moneys for the acquisition. Indeed, Mr Rose said that he had entered into contracts to acquire units in the Complex, presumably in his own name, before execution of the April Deed on 20 April 1999. He did not say that he had acquired the units pursuant to an arrangement which led to the execution of the Caretaker Deeds.
99For these reasons, subject to the other arguments advanced by Mr Street, I consider that unless prerogative relief is granted, there is a real likelihood that the Industrial Court will respond to Mr Rose's summons by making an order in excess of its jurisdiction.