Simmons v South Western Sydney Area Health Service and ors (No 2) [2005] NSWIRComm 128

Simmons v South Western Sydney Area Health Service and ors (No 2) [2005] NSWIRComm 128

The applicant failed to plead any material facts to establish a contract or arrangement between herself and the second and third respondents for the purposes of s 106; against these respondents, the proceedings lack an arguable legal foundation and should be struck out. However, as regards the first respondent, there is an arguable case that some arrangement relating to casual employment subsisted after 4 September 2003 and the applicant should be allowed to amend the summons to that extent.

Jurisdiction
Australia
Judgment Date
23 December 2005
Procedural Posture
Application Under S 106 of the Industrial Relations Act 1996 / Interlocutory Judgment on Motion to Amend Summons
Outcome
Application to amend allowed in part; struck out in part.
Legal Topics
['unfair Contract' 'interlocutory Proceedings' 'amendment of Summons' 'jurisdiction' 'industrial Relations Act S 106' 'rule 18 a Compliance']
['employment Law' 'industrial Law'] ['unfair Contract' 'interlocutory Proceedings' 'amendment of Summons' 'jurisdiction' 'industrial Relations Act S 106' 'rule 18 a Compliance']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the amended summons sufficiently pleaded facts to join the second and third respondents under s 106 of the Industrial Relations Act 1996' 'Whether there was an arguable contract or arrangement between the applicant and the second and third respondents' 'Whether the applicant could claim her employment contract continued in a varied form post-September 2003']

Ratio Decidendi

The applicant failed to plead any material facts to establish a contract or arrangement between herself and the second and third respondents for the purposes of s 106; against these respondents, the proceedings lack an arguable legal foundation and should be struck out. However, as regards the first respondent, there is an arguable case that some arrangement relating to casual employment subsisted after 4 September 2003 and the applicant should be allowed to amend the summons to that extent.

Court Disposition

Application to amend allowed in part; struck out in part.

Orders

  • ['The applicant is granted leave to amend the summons against the first respondent in the manner set out in the proposed amended summons for relief, including the proposed paragraph [48A].' 'The grant of leave to amend the summons against the second and third respondents in the manner set out in the proposed amended...