33 Egis contended that the position adopted in Younan-Sedrak did not reflect the jurisprudence of the Commission in other matters under s 106 in which there has been a preparedness to deal with threshold issues before conciliation. There were clearly cases in which the Commission had heard preliminary challenges to jurisdiction prior to conciliation being attempted: for example, Burgess v Mount Thorley Operations Pty Ltd (unreported, Marks J, 9 March 1999); Killinger v Minproc (unreported, Kavanagh J, 12 May 1999); Virtue v New South Wales Department of Education and Training (1999) 92 IR 428; Bell v Macquarie Bank Ltd (No 4) (1999) 93 IR 191. On the other hand, there were some cases in which jurisdictional points have been heard after conciliation: for example, Fox Evergreen Pty Ltd v May (unreported, Cahill V-P, 16 July 1998).
34 Egis also submitted that the jurisdiction of the Commission to conduct a conciliation depended on the matter being properly before the Commission. There was no warrant, it was said, for the Commission to proceed to conciliate a matter which may be without jurisdiction. Indeed, it was submitted, a firmly held view by one party that a matter is outside jurisdiction may be a substantial obstacle to any conciliation and a conciliation then would run counter to the "general rule" that jurisdictional questions be determined as early as circumstances conveniently admit: see Stevenson v Barham .
35 The initial consideration as to this aspect of the present issues is the significance and the strength of the observations of Hungerford J in Younan-Sedrak noting, however, that a different approach was taken on this issue by Peterson J in McGowan v Australian Broadcasting Corporation [2001] NSWIRComm 49 at [15] where his Honour held:
I conclude that s 109 does not compel conciliation of a matter which is contended to be beyond the Commission's jurisdiction. This means that whether a matter goes to conciliation or not first will be a matter for the Court at first instance to determine in the exercise of its judicial discretion, on the facts of the particular case.
36 The differing approaches raise an important issue as to a fundamental aspect of the Court's jurisdiction and practice. The importance of the obligation on the Commission under s 109 to conciliate should not be underestimated: the requirement did not exist in the counterparts to s 106 in the 1940 and 1991 statutes, and the 1996 legislative intention to encourage and facilitate settlement of s 106 proceedings appears to have been vindicated by the very great proportion of applications resolved by the operation of s 109. See also the consideration, albeit in a different context, by a Full Bench of the Commission in Shop, Distributive and Allied Employees' Association, New South Wales v Librus Pty Ltd, t/as Dymocks Parramatta (2001) 103 IR 394 at 395 - 398 of the interrelationship between the conciliation and determination of proceedings and the significance of conciliation in the functioning of this jurisdiction even where it is alleged that there was an absence of power to determine the proceedings.
37 However, because of the firm conclusion I have reached on the respondents' strike-out applications, it is not necessary for this difference to be resolved in these proceedings as they may be satisfactorily finalised otherwise. In other words, as I have concluded that the motions are to be dismissed, the apparent mandate in s 109 as to conciliation prior to determination will be observed. Nevertheless, it may be observed that the considerations referred to in the judgment in Younan-Sedrak serve to emphasise the stringency with which the approach in the line of cases represented by the judgment in Nagle v Tilburg is to be applied in these proceedings.
The Substance of the Notice of Motion
38 It is necessary now to turn to the principles which may be relevant in determining whether Egis can demonstrate that the Commission has no jurisdiction in this matter. Egis submitted that the jurisdiction of the Commission depended on the existence of a contract "in and of" New South Wales, citing Bell v Macquarie Bank Ltd (No 2) (1999) 87 IR 126, Englebrecht v Cordukes Ltd [2000] NSWIRComm 52 and Perrott v Xcellnet Australia Ltd (1998) 84 IR 255. It was argued that the words "in" and "of" are conjunctive so that the contract must be both "in" New South Wales and "of" New South Wales. The contract must be one which is carried out, if only in part, in New South Wales to be "in" New South Wales. The relevant industry must be conducted from New South Wales with a view to undertaking work in New South Wales.
39 Egis contended that the applicant appeared to assert that he relied on the respondents' evidence to make out the connection required to establish jurisdiction. Reference was made to the affidavit of the applicant's solicitor, Ms Dianne Margaret Banks. Egis argued that it was entirely appropriate to determine the question raised in the notice of motion based solely on the evidence of the applicant taken at its highest. It was not required to call any witnesses or bring any evidence. It also contended that the evidence of Ms Banks was unsatisfactory in that it was mere information and belief and should be given negligible weight.
40 Egis also submitted that the evidence of the applicant as to the first contract was that he was recruited in Indonesia and that all work was performed outside Australia with the applicant's wages being paid into an overseas bank account. Egis contended that it was of no relevance, for example, the applicant claimed to have communicated with the company while in East Timor. Further, the first contract did not gain the character of a contract "in and of" New South Wales by virtue of being collateral to the second contract. The second contract was also said not to be a contract "in and of" New South Wales and the contracts are discrete.
41 It is appropriate to pause here to observe that the way in which Egis argued its motion raises immediate difficulties for its success, as the arguments themselves, on their face, raise real doubt as to whether the relevant criteria are met and the proceedings are at "the appropriate stage": see, for example, the principles numbered 5, 6 and 7 in Virtue.
42 The applicant argued that it was, in any event, manifestly unfair to deny him the opportunity to rely on the evidence as a whole to demonstrate that the contracts have sufficient connection to New South Wales, including documents which may come to light through the process of discovery, notices to produce etc. It was submitted that it was not possible for Egis to show that the applicant could not succeed in obtaining relief in these proceedings. One possible view of the factual position was that all the contracts and arrangements formed part of a single and continuing arrangement under which the applicant performed work for Egis in its business - a business (and work) having sufficient connection to New South Wales (cf Howitt v Retec Ltd (1992) 45 IR 245 at 258 - 259).
43 The principles relating to the degree of connection with New South Wales required to bring a contract or arrangement within the scope of s 106 of the Act have been considered in a range of cases. Referring to relevant authorities, the Full Bench in Bell v Macquarie Bank Ltd (No 4) at 202 - 203 stated:
A further consideration which has some significance in the present stage of the case is that jurisdiction under s 106 depends upon the existence of a relevant contract or arrangement, rather than upon the performance of work itself. So much is made clear in the judgment of the Court of Appeal in Ex parte Richardson; Re Hildred [1972] 2 NSWLR 423. In that case, an application was made under s 88F of the Industrial Arbitration Act 1940 by two performers who were contracted in New South Wales to produce a variety show to be performed outside the State, primarily in Vietnam and Hong Kong.
The appeal concerned whether the Commission had jurisdiction to determine the application. Asprey JA commented (at 433 - 434):
What attracts the jurisdiction of the court to award, and what confers upon an applicant the right to receive, compensation under the various workmen's compensation statutes is the injury received in the course of the employment. What attracts the jurisdiction of the Commission to grant, and confers upon an applicant a right to obtain, relief under s88F of the Act is a contract or arrangement whereby a person performs work in the theatrical industry in or of New South Wales.