Lowe v BEA Systems Pty Ltd [2008] NSWIRComm 108

Lowe v BEA Systems Pty Ltd [2008] NSWIRComm 108

The current amended summons did not identify, even on a construction favourable to the applicant, any contract or arrangement between the applicant and the named respondent. It referred, at most, to a contract or arrangement with BEA Inc or BEA in the United States. The proposed further amended summons would introduce a new contract or arrangement between the applicant and the respondent after the relevant relationship had been terminated and after the 12-month period in s 108B had expired. Section 108B therefore precluded the amendment, and it was inappropriate to permit the applicant to remedy the pleading deficiency by avoiding that statutory bar.

Jurisdiction
Australia
Judgment Date
10 June 2008
Procedural Posture
Application Under S 106 of the Industrial Relations Act 1996 / Judgment on Interlocutory Application to Amend
Outcome
Application to amend dismissed; costs reserved.
Legal Topics
['section 106 Unfair Contract Proceedings' 'amendment of Summons' 'time Limit Under S 108 B' 'identification of Contract or Arrangement' 'rule 18 a Pleading Requirements']
['industrial Law' 'unfair Contracts' 'civil Procedure'] ['section 106 Unfair Contract Proceedings' 'amendment of Summons' 'time Limit Under S 108 B' 'identification of Contract or Arrangement' 'rule 18 a Pleading Requirements']

Case Brief

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Procedural Posture

Application Under S 106 of the Industrial Relations Act 1996 / Judgment on Interlocutory Application to Amend

Legal Issues

  1. 1 ['Whether the current amended summons identified a contract or arrangement between the applicant and the respondent capable of being declared unfair under s 106.' 'Whether the proposed further amended summons sought to attack a different contract or arrangement from that in the current proceedings.' 'Whether s 108B of the Industrial Relations Act 1996 precluded the proposed amendment because the relevant contract had been terminated more than 12 months earlier.' 'Whether the summons complied with the specificity required by r 18A and Form 12A.']

Ratio Decidendi

The current amended summons did not identify, even on a construction favourable to the applicant, any contract or arrangement between the applicant and the named respondent. It referred, at most, to a contract or arrangement with BEA Inc or BEA in the United States. The proposed further amended summons would introduce a new contract or arrangement between the applicant and the respondent after the relevant relationship had been terminated and after the 12-month period in s 108B had expired. Section 108B therefore precluded the amendment, and it was inappropriate to permit the applicant to remedy the pleading deficiency by avoiding that statutory bar.

Court Disposition

Application to amend dismissed; costs reserved.

Orders

  • ['The application to amend is dismissed.' 'Costs reserved.']