Neeson v Amora Company Limited and ors

Industrial Relations Commission (NSW)|2007-07-05|Before: Marks J, Mr J

CITATION: Neeson v Amora Company Limited and ors (no 3) [2007] NSWIRComm 166

APPLICANT: Linda Iris Neeson

FIRST RESPONDENT: Amora Company Limited PARTIES: SECOND RESPONDENT: Amora Group Pty Ltd THIRD RESPONDENT: Siriphatrawan, Tanapun FOURTH RESPONDENT: Philip Johnson

LEGISLATION CITED: Industrial Relations Act 1996 ss105, 106

Agar v Hyde (2000) 201 CLR 552 Bell and anor v Macquarie Bank Ltd and anor [1999] NSWIRComm 584 Ex-parte Richardson: re Hildred (1972) 2 NSWLR 423 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Gosper v Sawyer (1985) 160 CLR 548 CASES CITED: Mitchforce Pty Ltd v Starkey (No 2) (2003) 130 IR 378 Neeson v Amora Company Limited and ors (no 2) (2007) NSWIRComm 139 Old UGC Inc v Industrial Relations Commission of New South Wales [2004] NSWCA 197 Old UGC Inc v Industrial Relations Commission of New South Wales (2006) 225 CLR 274 Sin Yong Yim and Tae Sik Kim v Industrial Relations Commission of NSW and Hyun Sung (Marco) Choi (2007) NSWCA 77 Tryam Pty Ltd v Grainco Australia Limited [2003] NSWSC 812

HEARING DATES: 20/09/06, 21/09/06, 26/10/06, 14/05/07

APPLICANT (RESPONDENT ON MOTION): Mr J Murphy of counsel Solicitor: Mr C McArdle McArdle Legal

LEGAL REPRESENTATIVES: FIRST RESPONDENT: Unrepresented SECOND TO FOURTH RESPONDENTS (APPLICANTS ON MOTION): Mr S Prince of counsel Solicitor: Ms A Harvey Coleman & Greig

Application under s 106 of the Industrial Relations Act 1996

1 This interlocutory judgment concerns substantive proceedings brought under s 106 of the Industrial Relations Act 1996 ("the Act"). The second to fourth respondents have sought by motion to have the proceedings struck out, alleging that this Court lacks jurisdiction to deal with them. 2 In Neeson v Amora Company Limited and ors (no 2) (2007) NSWIRComm 139, I described the nature of the substantive proceedings and dealt with the basis upon which the strike-out application was being dealt with by the Court. For convenience, I set out [1] and [2] of that judgment. "1 These proceedings brought under s 106 of the Industrial Relations Act 1996 ("the Act") are constituted by a further amended summons filed pursuant to leave granted by me in judgment published 16 February 2007 ( Linda Neeson v Amora Company Limited and ors (2007) NSWIRComm 25). The applicant is Linda Iris Neeson. There are five named respondents. The first, Amora Company Limited, is a company incorporated in Thailand. The third respondent, Dr Tanapun Siriphatrawan, is alleged to be the owner and Chief Executive Officer of that company and the fourth respondent, Philip Johnson, is said to be its Chief Operating Officer. The further amended summons does not appear to state with any precision the involvement of the first respondent, Amora Company Limited. However, there was evidence that it owned and operated the Phatara Beach Resort at Phuket, Thailand at which resort the applicant worked as General Manager. The second respondent, Amora Group Pty Ltd is said to be an Australian company whose principal place of business is located in Melbourne, Victoria, with an office in Bangkok, Thailand. There is evidence in the interlocutory proceedings that that company had an overall managerial role in connection with the Phatara Beach Resort and other hotel properties within the Amora Company Limited group. The fifth respondent is said to be an Australian owned and operated entertainment, hospitality and leisure company incorporated under Australian law, whose head office is in Sydney, New South Wales. It has a hospitality division known as "Rydges Hotels and Resorts". That division of the fifth respondent managed the Rydges Jamison Sydney Hotel, which was ultimately owned by Dr Tanapun Siriphatrawan, the third respondent, where the applicant was employed as Executive Assistant Manager. It is alleged that Rydges Hotels and Resorts had a managerial role in the Phatara Beach Resort.

2 The applicant has discontinued the proceedings against the fifth respondent, Amalgamated Holdings Limited, and no longer seeks any relief against and with respect to that respondent." 3 The second to fourth respondents have submitted that there is no relevant territorial nexus between the contracts and arrangements, which the applicant seeks to attack as being unfair under s 106, and the State of New South Wales. The course of the interlocutory proceedings was described in my earlier judgment. There have been a number of hearing days in which oral evidence has been given and a large amount of documentary evidence has been tendered. The proceedings initially were conducted on the basis that the evidence in the interlocutory proceedings would be taken at its highest in favour of the applicant and any factual controversy resolved on this basis. 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. 6 In my earlier judgment, I dealt with the basis upon which the Court should approach the respondents' strike-out application with particular reference to the judgment of Barwick CJ in the High Court of Australia in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128 - 130 and the joint judgment of Gaudron, McHugh, Gummow and Hayne JJ in the High Court of Australia in Agar v Hyde (2000) 201 CLR 552 at [57]. 7 The extracts from the judgments referred to are set out in my earlier judgment and I will not repeat them. Suffice to say that I will proceed on the basis that the evidence in these interlocutory proceedings is to be taken at its highest in favour of the applicant and that in determining whether to accede to the respondents' request it is necessary to determine that even if proven the applicant's case cannot succeed, because this Court lacks jurisdiction, and that there is "a high degree of certainty about the ultimate outcome of the proceedings if it were allowed to go to trial in the ordinary way." 8 The substantive proceedings were instituted following the termination of the applicant's services as General Manager at the Phatara Beach Resort. 9 The relevant territorial nexus with New South Wales, which needs to be established in order to found jurisdiction, relates to the contracts or arrangements sought to be attacked by the applicant. I set out hereunder Claim [1] of Part A of the further amended summons, which purports to identify a number of contracts and arrangements etc that are 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;" 10 It is also convenient at this stage to set out the provisions of ss 105 and 106 of the Act because these will be relevant to a consideration of the respondents' strike out motion. 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. 11 In order to comprehend the review of the evidence which I am about to undertake, I have proceeded on the basis that the evidence is considered at its highest in favour of the applicant. The summary of the evidence that follows is undertaken on this basis. 12 The applicant has a vocational background in senior management roles in hotels. In about August 2001, at a time when the applicant was not then currently employed, she approached a Mr Simon McGrath who was then the General Manager of the Rydges Resort at Phuket about a new property that was being built in Chang Mai. The applicant wished to be considered for the position of General Manager. She had previously worked in a hotel or hotels managed by Rydges. Ultimately, the applicant met with Dr Tanapun who was said to be the "owner" of the hotel, but was not successful in obtaining appointment. 13 The applicant had had previous experience working in Thailand and had held the position of Executive Assistant Manager at a hotel in Bangkok. In January 2002, the applicant secured employment at a hotel on the Gold Coast. In February 2003, she became employed as the Executive Assistant Manager of the Rydges Jamison Sydney Hotel, which was managed by Rydges. Whilst working at the Rydges Jamison Hotel, the applicant considered herself part of the Rydges organisation. She was aware, however, of the involvement of ADFA Jamison Pty Ltd, a company that paid her remuneration and with which Dr Tanapun was associated. The applicant continued in employment at the Rydges Jamison Hotel until December 2004. During this time, Dr Tanapun visited the hotel on a regular basis and had a conversation with the applicant in which she confirmed her interest to work again in Thailand. There was a discussion about the position of General Manager at a hotel in Bangkok, but nothing came of this. 14 In early November 2004, the applicant had a conversation with Mr Paul Burkett, the General Manager of the Rydges Jamison Hotel, in which she was asked whether she would be interested in seeking appointment as the General Manager of a hotel in Phuket. Shortly after, she had a conversation with Mr Peter Hill, the Director of Operations of Rydges Hotels and Resorts who asked whether she was still interested in pursuing that position. She alleges that Mr Hill said "We want to offer you a promotion to the position of General Manager of the Amora Beach Resort if you are interested." She replied positively to this. She was told that her application would be subject to approval by Dr Tanapun. The applicant continued to have discussions both with Dr Tanapun and also representatives of the Rydges group. This culminated in the receipt of a draft contract that the applicant has always referred to as "the assignment contract". The draft contract was varied as a result of discussions with representatives of the Rydges group and there was a final meeting with Dr Tanapun and Mr Johnson at which agreement was reached. This was said to have occurred in late November 2004. 15 That document, which is in evidence, is dated 22 November 2004 on the letterhead of "Rydges Riverwalk Melbourne". It is entitled "Letter of Appointment" addressed to the applicant and offers her a position of employment as General Manager, Rydges Amora Beach Resort, Phuket, reporting to Mr Philip Johnson, Chief Operating Officer, Amora Company Limited. The offer is said to be made "on behalf of Phatara Beach Resort Company Limited" the owner of the property. 16 There is reference to the provision of airfares for "one home leave trip per year" and to the cost of economy airfares to and from Sydney. There is provision for health cover to be provided by the company under the "Marsh Pty Ltd Expatriate Health Insurance for Australian International Assignees Policy" or an alternate policy as submitted by the applicant and approved by the COO. There is provision for payment of a relocation package for relocation of personal effects and the like. The applicant is required to supply a quotation to Mr Johnson, for approval by Dr Tanapun. 17 Under the heading "Conditions of Employment" the applicant is required to comply with "Phatara Beach Resort Company Limited employment policies…." with reference to a number of specified publications. 18 The letter was signed by Mr Johnson on behalf of Dr Tanapun, CEO of Phatara Beach Resort Company Limited, and accepted by the applicant. 19 During the course of her evidence, the applicant consistently referred to this contract as being an "assignment contract" and consistently gave evidence that she regarded herself as having achieved a promotion to General Manager level within the Rydges group, presumably referring to the group of hotels that were managed by the Rydges organisation. She said that she was given a policy document issued by the fifth respondent by Robyn Bowman, the General Manager, Finance and Accounting, of the Rydges division of AHL, which refers to "short-term and long-term international assignment policies". The applicant asserted that Ms Bowman told her that that policy document would apply to her whilst she was on her assignment in Phuket. After she had read the policy, the applicant corresponded with Ms Bowman by email raising questions about health and medical coverage and the like. 20 In addition to the policy document, to which I shall refer shortly, there is in evidence communication between the applicant and Suzy Vera, the group Travel Manager of the fifth respondent, AHL, dealing with the provision of expatriate medical insurance and asking for the completion of emergency contact information for the purpose of a "centralised database of AHL Expatriate Employees". 21 This evidence would allow an inference to be drawn that AHL regarded the applicant as an "AHL expatriate". 22 However, the policy document itself applies to persons who are seemingly employees of AHL and who are assigned to work in a foreign location, either on a short-term or long-term international assignment. 23 An "international assignee" is described as "a person working outside his or her home country for the owner of a company affiliated with AHL." 24 Under the heading "Employment Relationship" it is stated that during a short-term assignment "the assignee remains an employee of AHL in Australia and remains on their home payroll." This is to be contrasted with a long-term assignment where the assignee is said to be "moved to the host country's payroll at the beginning of the assignment. Therefore, most human resources policies applicable in the host location will take effect, particularly as they relate to performance management, professional development, salary review and incentive compensation." There is provision in the policy document for the application of a "performance management program" on the part of AHL that is said to monitor success and opportunities for development "both in terms of current assignment and in the broader context of an individual's career path. Performance management for the international assignee therefore requires co-ordination between reporting managers in the home and host countries." 25 Significantly, there is a statement in the Assignment Policy to the effect that "maintaining contact with AHL while on an international assignment is vital. All assignees will therefore be required to prepare a 'month end' report which is to be sent to AHL's corporate office in Australia at the end of each month on assignment. The purpose of this report is to ensure a close monitoring of progress, and to surface any issues that may arise. The report should address, for example, financial issues, work responsibilities and work performed. Any communication with owners must comply with AHL standards. Any report sent to an owner must be copied to the relevant Corp Director." 26 It may deduced that the AHL policy document contemplated that in its application to the applicant, there would be continuing communication with and involvement of AHL whilst the applicant was employed as General Manager at the Phatara Beach Resort. 27 In fact, the applicant did provide regular reports to AHL for a few months. Furthermore, when difficulties arose between herself and Dr Tanapun, she ensured that copies of communications were forwarded to AHL personnel in Sydney. 28 Notwithstanding this, the applicant's first line reporting whilst General Manager at Phuket seems to have been to Mr Johnson, who was based in Melbourne, who was clearly acting on behalf of the second respondent and, therefore, ultimately on behalf of the first respondent. 29 In cross-examination, the applicant stated on a number of occasions that she regarded herself whilst employed to work at Phuket as nevertheless remaining in the employ of AHL as part of the Rydges hotel group. 30 The applicant and her husband were caught up in the devastating tsunami and its aftermath that struck the area surrounding Phuket on 26 December 2004. 31 On 2 February 2005, the applicant received an email from Mr Johnson indicating that the management agreement between the Amora Group and Rydges had expired and that Dr Tanapun was removing the Rydges group from its role in Thailand. She immediately telephoned Mr Lonergan of AHL in Sydney and had a discussion with him. She complained that she was under the impression that the Rydges group would continue to be involved with the management of the Phatara Beach Resort whilst she remained General Manager. The evidence thereafter is not clear as to whether in fact there was a termination of the management relationship between the Rydges group and the Amora Group either generally with respect to Thailand operations or specifically with respect to the Phatara Beach Resort. 32 In any event, the applicant's employment at the resort was terminated on 8 April 2005 in circumstances that she asserts created relevant unfairness under s 106 of the Act. 33 I have previously set out Part A (1) of the further amended summons. That identifies nine different contracts or collateral arrangements. Those nine contracts or collateral arrangements are prefaced by the words "Such contracts include, but are not limited to,….". Furthermore, in paragraphs (b), (c), (f), (g), (h) and (i) there are references to "alternative" contracts or collateral arrangements. 34 The formulation of the applicant's claim in this way should be contrasted with the factual situation that quite clearly emerges from the evidence to which I have referred. This may be summarised 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. 35 I emphasise that the above analysis has been undertaken by accepting the evidence given in the proceedings at its highest in favour of the applicant. 36 In considering any contract or collateral arrangement to which AHL is alleged to be a party or to which any entity which is not a respondent in the proceedings is a party, I note that this Court would be deprived of jurisdiction and power to avoid or vary any such contract or collateral arrangement. This is because AHL or such other entity, not being before the Court, any such contract or collateral arrangement to which it or any such entity was a party would not be the subject of relief. In this regard I respectfully adopt and agree with the comments of Handley JA to this effect contained in [101] of Sin Yong Yim and Tae Sik Kim v Industrial Relations Commission of NSW and Hyun Sung (Marco) Choi (2007) NSWCA 77 in the New South Wales Court of Appeal. 37 As will be seen, an important part of the applicant's claim is based upon the alleged arrangement made with the named respondents that gave her the continuing opportunity for engagement to perform work at hotels managed by the Rydges group. Obviously, the respondent AHL must be a party to any such arrangement. However, the fact that that respondent is no longer a party to the proceedings will impact upon the ability of the Court to vary or avoid the arrangement to which I shall refer later. 38 There is a discussion as to what constitutes an "arrangement" for the purposes of s 106 by a Full Bench of this Court in Mitchforce Pty Ltd v Starkey (No 2) (2003) 130 IR 378. The matter is discussed comprehensively in the joint judgment of Wright J, President and Walton J, Vice-President at [132] to [138]. In summary, their Honours emphasised that there must be "a bi-lateral or multi-lateral plan or concerted action to bring about particular results"; "a transaction in the nature of a bargain which may not be legally binding or enforceable"; "something in the nature of an understanding between two or more persons." 39 That is, there must be some evidence of a thought process undertaken by each of the persons or entities said to be participating in the arrangement that creates understanding or agreement about something. 40 The difficulty that arises in the context of these interlocutory proceedings is that there is, as I understand all of the evidence given for the purpose of these interlocutory proceedings, simply no evidence of any communication of any kind between the applicant and any of the persons or entities representing, or being, the second to fourth respondents about any such arrangement. That is, there 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. 41 Accordingly, if I were, without more, to accept the evidence of the applicant at its highest in her favour, there would be simply no evidence available to the Court which could found any arrangement of the kind which I understand to have been described in the further amended summons for relief. 42 I now return to the formulation of the contracts contained within the further amended summons, which I have previously set out in [9] above. I shall refer to each of those paragraphs by the same lettered paragraphs as is therein set out. However, before doing so I observe the prefatory statement that the contracts set out "include, but are not limited to" those contracts. In my opinion, 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. By this time she has had ample opportunity to consider those contracts, arrangements, related conditions or collateral arrangements to which she says she was a party and with whom they were made. The proceedings are now constituted by a further amended summons for relief. I propose to consider the proceedings, therefore, on the basis of the nine alternative contracts etc as described. In doing so, I again note that within the second, third, sixth, seventh, eighth and ninth alternative formulations, there are, in turn, alternatives. 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.

Territorial Nexus 44 The jurisdictional attack made by the respondents by their notice of motion in these interlocutory proceedings was directed solely to the question of territorial nexus. Put shortly, the second to fourth respondents submitted that these proceedings are directed wholly to the circumstances in which the applicant's employment at the Phatara Beach Resort in Thailand came to an end. Indeed, the allegations of unfairness contained in the further amended summons are directed almost exclusively to these circumstances. 45 Admittedly, there are other ground of unfairness all of which are raised in a general sense with respect to all of the contracts, arrangements, related conditions and/or collateral arrangements referred to in the further amended summons and without describing in any way which of the allegations of unfairness are directed to which of the contracts, arrangements, related conditions and collateral arrangements referred to. In other words, each of the contracts etc are said to be unfair with respect to each of the grounds of unfairness raised. There are allegations that they did not provide that the Phatara Beach Resort would remain under the management of AHL for such period as the applicant remained working there, there are allegations of unfairness arising out of a failure on the part of the respondents "to collaborate on key decisions such as the applicant's career development….", they refer to the circumstances in which the applicant's employment at the resort was terminated, the time at which it occurred and the like, that the first to fourth respondents failed to offer to repatriate the applicant to Australia or offer her continuing suitable alternative employment, and the like. The respondents submitted that all of these allegations of unfairness were directly related to and arose out of the termination of employment at the Phatara Beach Resort and that employment and its contractual basis was confined in its entirety to work performed in Thailand, that no work was performed by the applicant in New South Wales and, in any event, the applicant did not perform any work in an industry in and of New South Wales. 46 The relevant principles, which circumscribe the jurisdiction of this Court in dealing with matters under s 106 of the Act with reference to territorial nexus with the State of New South Wales, are now well settled. There is a comprehensive historical discussion and analysis of the relevant principles in the judgment of Palmer J in the Supreme Court of New South Wales in Tryam Pty Ltd v Grainco Australia Limited [2003] NSWSC 812. They are contained in [36] to [121]. Palmer J's judgment contains an incisive and detailed analysis of relevant High Court authority and a discursis of authorities both in the New South Wales Court of Appeal and in this Court and its predecessors. 47 I respectfully agree with the analysis made by Palmer J of the decision of the High Court of Australia in Gosper v Sawyer (1985) 160 CLR 548, its inapplicability in terms of resolving the controversy in these proceedings as well as his Honour's analysis of the decision of the New South Wales Court of Appeal in Ex-parte Richardson: re Hildred (1972) 2 NSWLR 423. Furthermore, I agree with his Honour's conclusion that the performance of work in an industry in and of New South Wales is a determinative matter although it is not necessary that the majority of the work is physically performed within New South Wales. 48 I would add that the analysis and statement of principles of Palmer J was the subject of agreement by Spigelman CJ in the New South Wales Court of Appeal in Old UGC Inc v Industrial Relations Commission of New South Wales [2004] NSWCA 197 at [31]. (Mason P and Handley JA agreed in the reasons for judgment of Spigelman CJ). 49 For completeness, it would appear that Palmer J was not referred to the judgment of the Full Bench of this Court in Bell and anor v Macquarie Bank Ltd and anor [1999] NSWIRComm 584, Wright J President, Peterson and Kavanagh JJ). After an analysis of the relevant authorities their Honours concluded that the proper law of any relevant contract will itself be relevant but not determinative as to whether jurisdiction exists. They further concluded that the place where work is performed under the contract or arrangement is one factor, but not a decisive factor, which must be considered. "….work may be performed in an industry 'in and of' New South Wales notwithstanding that the majority of the work is not physically performed in this State. This may be the case so long as there are other factors present which establish, or assist in establishing, a relevant connection with New South Wales. Factors which may indicated such a connection include that the contract or arrangement was negotiated or made in the State of New South Wales or that the contract or arrangement involves the performance of work overseas in furtherance of a New South Wales industry." 50 More recently, the question of territorial nexus for the purpose of s 106 proceedings has been considered by the New South Wales Court of Appeal in Old UGC, previously referred to and on appeal in the High Court of Australia. 51 In the New South Wales Court of Appeal, Spigelman CJ concluded that s 106 is directed to contracts "out of the concern with the terms and conditions upon which work is performed in any industry in New South Wales." (At [32]). Accordingly, it was the location of the industry in New South Wales that provided the relevant territorial nexus. 52 In the proceedings in the High Court of Australia (Old UGC Inc v Industrial Relations Commission of New South Wales (2006) 225 CLR 274) the majority judgment was that of Gummow, Hayne, Callinan and Crennan JJ. Although Gleeson CJ was in dissent as to the overall result, the Chief Justice agreed with the majority judgment in terms of territorial nexus. 53 The joint judgment relevantly for the issue of territorial nexus said "22. In the appeal to this Court the Old UGC parties made submissions about the territorial reach of the unfair contract provisions of the Act and about the consequences of the parties to the C & R Agreement stipulating that the agreement was governed by the law of Colorado. But those were submissions that treated the relevant agreement as the hinge about which the operation of s 106 of the Act turned. For the reasons given in Fish v Solution 6 Holdings Ltd (2006) 225 CLR 180, that is not the preferable construction of the section. Rather, the section hinges upon the performance of work in any industry and where, as here, the work said to be in question was work in an industry in New South Wales, no question arises of extraterritorial reach of the legislation.

Nor is there any basis for concluding, as the Old UGC parties contended, that an agreement whose proper law is not the law of New South Wales but is an agreement whereby work is performed in an industry in New South Wales is not, on the true construction of s 106, within its reach ( Kay's Leasing Corporation Pty Ltd v Fletcher (1964) 116 CLR 124 at 142-143 per Kitto J). As Dixon J pointed out in Wanganui-Rangitikei Electric Power Board v Australian Mutual Provident Society (1934) 50 CLR 581 at p 601, there is a presumption that, unless a contrary intention appears, statutory provisions are understood as having no application to matters governed by foreign law. But that is a presumption about statutory construction and where, as here, the central conception upon which the relevant provisions fasten is the performance of work in an industry and the work in question was performed within the jurisdiction, no question of reading down the operation of the section according to territorial limitations arises." [2006] HCA 24 54 The only contracts or collateral arrangements which are capable of being relied upon by the applicant as referred to in the further amended summons being claims brought against the second to fourth respondents are those within paragraphs (f), (g) and (h). These are confined to the contract of employment entered into between the applicant and, alternatively, the first respondent or the second respondent, by which the applicant worked as General Manager of the Phatara Beach Resort in Thailand. I proceed on the basis that the evidence as to where that contract of employment was entered into, namely the place where the acceptance of the final offer was made, may allow for a conclusion that it was entered into in New South Wales. It is possible, also, taking the evidence at its highest in favour of the applicant, that the proper law of the contract might be the State of New South Wales. 55 However, it is uncontroversial that all of the work, which the applicant 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. Indeed, when she wished to communicate with Mr Johnson, that communication was undertaken whilst she was in Thailand. Assuming, in her favour, that she was required by the terms of her contract of employment to report from time to time to AHL in Sydney, such reporting was undertaken physically by the compilation of material in Thailand and dispatching it in Thailand for the purpose of third party delivery in Sydney. 56 For completeness, I state that, taking the evidence at its highest in favour of the applicant, I shall ignore the evidence that there was a written management agreement in place between the Amora Company Limited and a Singapore subsidiary of the fifth respondent. I shall proceed on the basis that whatever the terms of that agreement, the applicant was required to and did report on a regular basis to AHL personnel in Sydney. 57 It is true, as the applicant emphasised, that there are features of the written contract of employment with respect to her employment at Phatara Beach Resort and there are 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. 58 At [24], [25], [26] and [29] previously set out, I refer to the nature and extent of the applicant's ongoing communication with and relationship with AHL personnel at its corporate office in Sydney. 59 There was evidence that towards the end of her employment at the Phatara Beach Resort there were communications by telephone and email between the applicant and AHL personnel. However, these communications were more in the nature of requests for help in dealing with difficulties that the applicant was encountering at the resort. These included difficulties in endeavouring to introduce change in the operation of the resort, in dealing with personnel whom she thought were inept and insubordinate and who attempted to undermine her authority by making false claims against her and the like. However, it is clear from responses received by the applicant from AHL personnel that her ultimate direct report and the person who exercised direct supervisory authority over her was Mr Johnson, who was located in Melbourne and, ultimately, Dr Tanapun. 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. 63 It follows therefore that the summons should be dismissed. The question of costs has not been argued and I shall reserve costs.

Orders 64 I make the following orders: 1) The further amended summons is dismissed. 2) Costs are reserved. 3) Liberty to apply with respect to costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

[1999] NSWIRComm 584

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Judgment (19 paragraphs)

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Cases Cited (13)

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