Thomson and anor v Societe Generale Australia Limited [2005] NSWIRComm 68

Thomson and anor v Societe Generale Australia Limited [2005] NSWIRComm 68

The additional particulars concerning Wambo/Excel connection earnings were capable of being read consistently with claim 12 and the pleaded matters and were, at most, a variation of quantification of an existing claim rather than a new claim. The respondents also failed to establish that the jurisdiction invoked under s 106 was wholly misconceived or lacked an arguable legal foundation, because the employment contract and deed were arguably inextricably interwoven, made contemporaneously, intended to operate concurrently, and capable of forming part of an overall arrangement whereby work was performed in an industry.

Jurisdiction
Australia
Judgment Date
16 March 2005
Procedural Posture
Application Under S 106 of the Industrial Relations Act 1996 / Interlocutory Judgment on Respondents' Notice of Motion to Preclude the Applicants From Relying on Additional Further and Better Particulars
Outcome
The respondents' notice of motion was dismissed as to the two argued bases, and the respondents were ordered to pay the applicants' costs of the notice of motion.
Legal Topics
['unfair Contracts' 'jurisdiction Under S 106 of the Industrial Relations Act 1996' 'further and Better Particulars' 'interlocutory Application' 'contract or Arrangement Whereby a Person Performs Work in an Industry']
['industrial Relations' 'employment Law' 'civil Procedure'] ['unfair Contracts' 'jurisdiction Under S 106 of the Industrial Relations Act 1996' 'further and Better Particulars' 'interlocutory Application' 'contract or Arrangement Whereby a Person Performs Work in an Industry']

Case Brief

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Procedural Posture

Application Under S 106 of the Industrial Relations Act 1996 / Interlocutory Judgment on Respondents' Notice of Motion to Preclude the Applicants From Relying on Additional Further and Better Particulars

Legal Issues

  1. 1 ["Whether the additional further and better particulars constituted a new claim outside the applicants' further amended summons." "Whether claims concerning the deed executed in February 2001 were beyond the Commission's jurisdiction and power under s 106 of the Industrial Relations Act 1996 because the deed was not a contract whereby a person performs work in any industry."]

Ratio Decidendi

The additional particulars concerning Wambo/Excel connection earnings were capable of being read consistently with claim 12 and the pleaded matters and were, at most, a variation of quantification of an existing claim rather than a new claim. The respondents also failed to establish that the jurisdiction invoked under s 106 was wholly misconceived or lacked an arguable legal foundation, because the employment contract and deed were arguably inextricably interwoven, made contemporaneously, intended to operate concurrently, and capable of forming part of an overall arrangement whereby work was performed in an industry.

Court Disposition

The respondents' notice of motion was dismissed as to the two argued bases, and the respondents were ordered to pay the applicants' costs of the notice of motion.

Orders

  • ["So much of the respondents' notice of motion as deals with the two bases considered is dismissed." "The respondents are to pay the applicants' costs of the notice of motion assessed under the Legal Profession Act in default of agreement." 'The liberty to apply previously granted remains.']