Industrial Court of New South Wales CITATION: Neeson v Amora Company Limited and ors (No 2) [2007] NSWIRComm 139 APPLICANT: Linda Iris Neeson FIRST RESPONDENT: Amora Company Limited PARTIES: SECOND RESPONDENT: Amora Group Pty Limited (ACN 112 177 885) THIRD RESPONDENT: Dr Tanapun Siriphatrawan FOURTH RESPONDENT: Philip Johnson FILE NUMBER(S): 3417 of 2005 CORAM: Marks J CATCHWORDS: Unfair contract s106 proceedings - interlocutory strike out application - issue of territorial nexus between contracts and NSW - application to be considered at appropriate stage of proceedings - requirement of all necessary evidentiary material - final determination stood over to allow further processes sought by applicant. LEGISLATION CITED: Industrial Relations Act 1996 s106 Linda Neeson v Amora Company Limited and ors (2007) NSWIRComm 25 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 CASES CITED: Agar v Hyde (2000) 201 CLR 552 Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 Nagle v Tilburg (1993) 51 IR 8 Yim and Kim v Industrial Relations Commission of New South Wales and Choi [2007] NSWCA 77 HEARING DATES: 9 & 12 March, 14 May 2007 DATE OF JUDGMENT: 13 June 2007 APPLICANT: Mr J Murphy of counsel SOLICITOR: Mr C McArdle McArdle Legal LEGAL REPRESENTATIVES: SECOND TO FOURTH RESPONDENTS: Mr S Prince of counsel SOLICITORS Ms A Harvey Coleman & Greig JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Marks J Wednesday 13 June 2007 Matter No IRC 3417 of 2005 Linda Neeson v Amora Company Limited and ors (No 2) Application under s 106 of the Industrial Relations Act 1996 INTERLOCUTORY JUDGMENT ON JURISDICTION [2007] NSWIRComm 139 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, by motion, sought an order that the proceedings be dismissed on the basis that this Court has no jurisdiction with respect to them. They submit 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 hearing of the notice of motion was much delayed. At the end of the second day of the hearing, namely 21 September 2006 after Mr Johnson and the applicant had given evidence, I raised with Mr Murphy, counsel for the applicant, whether the then form of the amended summons complied with the provisions of Rule 18A of the Rules of this Court in that there was insufficient particularity of the contracts and arrangements that the applicant sought to impugn in the s 106 proceedings to enable both the respondents and the Court to fully comprehend and deal with the applicant's claims. Subsequently, in the judgment of 16 February 2007 to which I have earlier referred, leave was granted to the applicant to file a further amended summons. The respondents required the applicant for further cross-examination given this further amendment to the proceedings. There was a further hearing on 14 May 2007 when the applicant gave further evidence and was cross-examined. I should add that at all relevant times throughout these proceedings, the applicant has resided in Thailand and continues to reside there. The respondents' motion thereafter proceeded on the basis of the further amended summons. 4 For completeness, I note that these interlocutory proceedings were conducted having regard to affidavit evidence sworn by the applicant and the fourth respondent, Mr Johnson, both of whom gave oral evidence and were cross-examined on their affidavits. Furthermore, a great deal of documentary evidence was tendered. 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. The basis for determination of the strike-out motion 6 There is a well-known line of authority which deals with interlocutory strike-out applications and the circumstances in which they should be dealt with. 7 A convenient starting point is 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. In a judgment which is often cited, Barwick CJ said: "8. The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. I have examined the case law on the subject, to some of which I was referred in argument and to which I append a list of references. There is no need for me to discuss in any detail the various decisions, some of which were given in cases in which the inherent jurisdiction of a court was invoked and others in cases in which counterpart rules to Order 26, r. 18, were the suggested source of authority to deal summarily with the claim in question. It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense". 9. At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance". 10. As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same. Dixon J. (as he then was) sums up a number of authorities in Dey v. Victorian Railways Commissioners (1949) 78 CLR 62 VOL CXII-9 where he says (1949) 78 CLR, at p 91: 'A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.' Although I can agree with Latham C.J. in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings (1949) 78 CLR, at p 84, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed." (At pp 128 - 130) 8 More recently, in Agar v Hyde (2000) 201 CLR 552, Gaudron, McHugh, Gummow and Hayne JJ in the High Court of Australia said: "57. It is, of course, well accepted that a court whose jurisdiction is regularly invoked in respect of a local defendant (most often by service of process on that defendant within the geographic limitations of the court's jurisdiction) should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways ( Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91, per Dixon J; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130, per Barwick CJ), but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way." (At [57]) 9 In Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27, Gleeson CJ, Gummow, Hayne and Crennan JJ in a joint judgment observed that "The statements in General Steel should not be given canonical force." Their Honours then cited [73] from Agar v Hyde, previously set out. 10 As the authorities make clear, an interlocutory strike-out application should not be entertained by a court until the "appropriate stage" has been reached in the proceedings, namely 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, it seems to us, 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 determination to be made." per Fisher CJ, Hungerford and Peterson JJ in the Full Court of the Industrial Court of New South Wales in Nagle v Tilburg (1993) 51 IR 8 (at 11-12). 11 As I have previously stated, when the hearing of these interlocutory proceedings commenced, it was on the basis that the motion would be determined taking the evidence given at its highest in favour of the applicant. However, after all of the evidence had concluded over a period of some two-and-a-half days, and during the course of closing submissions, there occurred this interchange with Mr Murphy: MURPHY: This becomes important, because ultimately the Commission is being asked to strike out an application at an early stage of the proceedings, in a situation where there is that lack of clarity as to who it is that are players in the arrangement, and who is benefiting, and who is pulling the strings. HIS HONOUR: We have a pretty good idea now, do we not? MURPHY: I was going to come to it later, but I can move out of order. It is not true all the evidence is in about all of these arrangements. Your Honour will be aware of a Full Bench authority which cautions against striking out at an early stage, because all of the evidence is not in and cannot be in. We do not know what may be produced in response to subpoena or discovery or what might happen down the track. HIS HONOUR: So the applicant has not conducted this aspect of litigation on the basis she has put in all the evidence about which she is aware? MURPHY: I think you can accept she has put in evidence about what she is aware, but that is not the end of the story. In the normal course of litigation, we proceed to issue subpoenas and orders for discovery. The caution is against assuming there is nothing there that would support the jurisdictional argument. 12 Later, there appeared this interchange with Mr Murphy: HIS HONOUR: On what basis am I to proceed? On the basis that the applicant says it is an inappropriate stage in the proceedings because she wants all of the evidence to be on and she wants to undertake some interlocutory processes by way of summons for production and discovery, so, therefore, I don't proceed at this stage or does she say, well, I will put on all the evidence available to me and which is sufficient for the Court. Or are you now saying we have done that and we also want the opportunity of some discovery? MURPHY: We are saying that for this reason we have put on all that is available at the present time. We have done that but the authorities also caution against an assumption that is all there is. We are not having an each way bet at all. It is an orthodox approach to litigation. The test is very high. There is no basis for a finding that there is a jurisdictional connection and they fail to do that on the evidence before your Honour. 13 Mr Murphy then proceeded to make oral submissions seeking to establish a territorial nexus by reference to a number of contracts and arrangements to which he referred. 14 However, having regard to the applicant's primary position as put by Mr Murphy, namely that this was not an appropriate stage of the proceedings to determine this issue, because all of the relevant evidence had not been adduced on behalf of the applicant, I have grave concerns that pursuing any submissions as to jurisdiction to finality at this stage would be inappropriate. 15 There is specific reference in the observations in the joint judgment in Agar v Hyde to a party not being denied the opportunity to place his or her case before the court "in the ordinary way" and, more importantly, "after taking advantage of the usual interlocutory processes." 16 It was submitted by the respondents that the Court should not have regard to these observations in the High Court of Australia in Agar v Hyde and in Batistatos. This was because, firstly, Agar v Hyde involved consideration of what was, as the submission said: "Absence of a triable issue" and, in the case of Batistatos, proceedings involving a consideration of whether or not delay had created an abuse of process. 17 I respectfully disagree. My understanding of the statements of principle in both cases is that they apply in the circumstances of these proceedings, namely a determination about whether or not the applicant's case is untenable, futile or otherwise to be denied because 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." 18 In order to remove any doubt in this regard, I set out below [44] to [46] of the joint judgment of Gleeson CJ, Gummow, Hayne and Crennan JJ in Batistatos. "44. In his reasons, Hoeben J identified, under the heading "Absence of triable issue", the first submission of the defendants. This was that the claim by the plaintiff "was so obviously untenable that it could not succeed" [2004] NSWSC 796 (at [14]). The submission was framed in terms which appeared to state as a principle remarks made by Barwick CJ in a passage in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 (at 130). Barwick CJ pointed out that, on the one hand, great care was to be exercised to ensure that a plaintiff was not improperly deprived of the opportunity for the trial of the case "under the guise of achieving expeditious finality", and, on the other, the summary intervention of the court was not reserved for cases where "argument is unnecessary to evoke the futility of the plaintiff's claim". His Honour then immediately continued (1964) 112 CLR 125 (at 130.) "Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed." 45. The conclusion in General Steel was that Barwick CJ was satisfied that the statement of claim did not disclose a reasonable cause of action so that this Court was authorised by O 26 r 18 of the then High Court Rules to strike out that pleading ((1964) 112 CLR 125 at 137). To reach that conclusion, extensive argument was considered respecting the construction and application of the Crown use provisions of the Patents Act 1952 (Cth). 46. The statements in General Steel should not be given canonical force. More recently, in Agar v Hyde (2000) 201 CLR 552 (at 575-576) [57], Gaudron, McHugh, Gummow and Hayne JJ observed: "It is, of course, well accepted that a court whose jurisdiction is regularly invoked in respect of a local defendant (most often by service of process on that defendant within the geographic limitations of the court's jurisdiction) should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways ( Dey v Victorian Railways Commissioners (1949) 78 CLR 62 (at 91 per Dixon J); General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 (at 130 per Barwick CJ)) but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way."" 19 However, it is not just the statement of principle in Batistatos or, more accurately Agar v Hyde that is of concern. It is the admonition contained in Nagle v Tilburg that I have previously set out. That is, this interlocutory application should only be considered at an "appropriate" stage of the proceedings. That is, the Court must be seized of those facts necessary to enable it to determine what the contract or arrangement is or, to use the words in the joint judgment in Nagle, "the parameters of the contract or arrangement". Those facts must be established either by evidence or "plainly agreed in terms". 20 The respondents suggested that the Court should adopt the same approach as was utilised by the New South Wales Court of Appeal in cases involving the exercise of its supervisory jurisdiction over this Court. The respondents cited, for example, the decision of that Court in Yim and Kim v Industrial Relations Commission of New South Wales and Choi [2007] NSWCA 77. In those proceedings, the Court of Appeal determined that there was no contract whereby a person performed work in an industry that could be the subject of relief under s 106 of the Act. However, as appears from [6] of the judgment of Spigelman CJ (in whose judgment Mason P and Handley AJA agreed), those proceedings had been conducted on the basis that there was agreement that all of the necessary evidentiary material to establish all the necessary facts were before the Court to determine whether there was jurisdiction and power under s 106. 21 The situation is somewhat different in the context of these proceedings. 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. 22 The choice which confronts the Court is either to dismiss the motion because this is not an appropriate stage of the proceedings, adjourn the motion to be restored at some appropriate time in the proceedings, to determine the motion on the original basis as agreed by the applicant, or to stand the motion over to allow the applicant to pursue these two further lines of enquiry. 23 In view of the agreed basis upon which these interlocutory proceedings were conducted over several days and the time and costs involved in that process and because the applicant has changed her mind at the last moment, it would not appear to me to be in the interests of the "just, quick and cheap resolution" of this interlocutory application to unduly defer a determination of what the respondents contend is a real issue in the proceedings. 24 Given the history of the matter, I propose to stand over the final determination of these interlocutory proceedings to allow the applicant an opportunity to pursue the two further processes indicated, namely the issue of summonses for production and discovery limited, however, to documents which arguably have the appropriate relevance to the territorial nexus issue between the parties. 25 This latitude that is afforded to the applicant must be availed of without delay. I would intend fixing a period of 21 days for the applicant to issue any summonses for production and to initiate any discovery process. Thereafter, both processes must be completed without delay. 26 I intend standing these proceedings over with liberty to apply, which may be exercised by either party at short notice. In any event, the applicant's solicitor is personally directed to inform my associate in writing within six weeks of this date about the progress of these interlocutory processes and as to an anticipated date upon which they will be completed. Of course, if they are not undertaken or if they are completed within this time frame, my associate should be notified at the earliest possible opportunity. All such notification should, of course, be made in conjunction with the respondents' solicitor. Arrangements will then be made for the proceedings to be re-listed to take any further evidence and for final submissions. 27 I will reserve costs. Orders 28 I make the following orders: 1) The applicant shall within 21 days of this date issue and serve such summonses for production as she wishes to issue and initiate such discovery process as she desires, in each case limited to the question of territorial nexus, which is currently before the Court. 2) The applicant's solicitor, Mr Chris McArdle, is directed to advise my associate in writing no later than 42 days from this date, and earlier if appropriate, concerning the progress or completion (as the case may be) of the two processes referred to in Order 1 above with notice to the respondents' solicitor. 3) Costs are reserved. 4) Liberty to apply on short notice. 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.