Simmons v South Western Sydney Area Health Service and ors [2005] NSWIRComm 32

Simmons v South Western Sydney Area Health Service and ors [2005] NSWIRComm 32

The proposed amended summons asserted the existence of an arrangement but did not set out factual matters showing any discussion, negotiation, contact, understanding, mutuality of purpose, or other indicia of an arrangement involving the applicant and the second or third respondents whereby the applicant performed work in an industry. Because it failed to specify the matters of fact forming the basis of the alleged arrangement and did not contain sufficient information for conciliation, it did not comply with Rule 18A. Leave to amend in the proposed form was therefore refused.

Jurisdiction
Australia
Judgment Date
03 June 2005
Procedural Posture
Application Under S 106 of the Industrial Relations Act 1996 Alleging Unfair Contracts or Arrangements / Interlocutory Application by the Applicant to Amend the Summons
Outcome
Applicant's notice of motion to amend the summons dismissed; costs reserved; applicant given limited time to file any further motion to amend.
Legal Topics
['unfair Contracts' 'application to Amend Summons' 'rule 18 a Pleading Requirements' 'arrangements for Performance of Work' 'time Limit for Terminated Contracts']
['industrial Law' 'employment Law' 'civil Procedure'] ['unfair Contracts' 'application to Amend Summons' 'rule 18 a Pleading Requirements' 'arrangements for Performance of Work' 'time Limit for Terminated Contracts']

Case Brief

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Procedural Posture

Application Under S 106 of the Industrial Relations Act 1996 Alleging Unfair Contracts or Arrangements / Interlocutory Application by the Applicant to Amend the Summons

Legal Issues

  1. 1 ['Whether the proposed amended summons complied with Rule 18A of the Industrial Relations Commission Rules by specifying in summary the matters of fact and law forming the basis of the s 106 application.' 'Whether the proposed amended summons sufficiently identified an arrangement between the applicant and the respondents whereby the applicant performed work in an industry.' 'Whether the applicant should be permitted to amend the summons to avoid the possible application of s 108B of the Industrial Relations Act 1996.']

Ratio Decidendi

The proposed amended summons asserted the existence of an arrangement but did not set out factual matters showing any discussion, negotiation, contact, understanding, mutuality of purpose, or other indicia of an arrangement involving the applicant and the second or third respondents whereby the applicant performed work in an industry. Because it failed to specify the matters of fact forming the basis of the alleged arrangement and did not contain sufficient information for conciliation, it did not comply with Rule 18A. Leave to amend in the proposed form was therefore refused.

Court Disposition

Applicant's notice of motion to amend the summons dismissed; costs reserved; applicant given limited time to file any further motion to amend.

Orders

  • ["The applicant's notice of motion to amend the summons is dismissed." 'Costs are reserved.' 'The applicant is directed to file any further motion seeking to amend the summons for relief within 21 days of this date.']