Considerations
49 Although the question to be determined in this application is whether an order for transfer of this proceeding to the Supreme Court of New South Wales ought to be made, rather than a consideration of the substantive issues in the proceeding itself, it is necessary to form a preliminary view on certain matters in issue in the proceeding also said to be relevant to the transfer question, notably, the jurisdictional issues. If it is plain that this Court does not have jurisdiction in a 'matter', there is little point considering whether the Federal Court of Australia is the proper forum for quelling the specific controversy concerning that matter.
50 As to the jurisdictional question, s 39B(1A)(a) of the Judiciary Act confers original jurisdiction on the Federal Court of Australia in any matter arising under the Constitution or involving its interpretation. Section 39B(1A)(c) confers jurisdiction upon the Court, relevantly for present purposes, in any matter arising under any laws made by the Parliament. The Bank claims that its 'rights and entitlements' as a party to a services contract are not affected by s 106 of the IR Act. That claim seems to me to be the assertion of a right, or reliance upon an answer to a claim for an order under s 106 of the State Act, conferred by or under the Commonwealth Act. The claim thus arises under the Commonwealth Statute (Ex parte McLean (1930) 43 CLR 472; The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154 per Latham CJ; The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty Ltd (1953) 88 CLR 100; and Felton v Mulligan & Anor (1971) 124 CLR 367. The controversy also involves a matter arising under the Constitution.
51 Section 179 of the IR Act is a privative provision described by its heading as directed to the 'finality of decisions'. Although the section addresses 'decisions' and 'purported decisions' it also provides that 'proceedings of the Commission (however constituted) may not be prevented from being continued … or called into question in any court or tribunal'. The respondents seem to say, in effect, that s 179 of the IR Act either ousts the original jurisdiction of the Federal Court conferred by the Judiciary Act; fetters the exercise of jurisdiction in the making of declarations or orders for prohibition; or informs the exercise of the discretion on transfer.
52 Questions of the tension between the conferral of limited jurisdiction upon the Industrial Court and constraints upon supervisory challenges to the exercise of that limited jurisdiction on grounds of jurisdictional error (before the Supreme Court of New South Wales, the Court of Appeal and ultimately appellate challenges before the High Court) and the reconciliation of that tension, have been considered in Fish v Solution 6 Holdings Ltd (2006) 80 ALJR 959 ('Fish'); Batterham v QSR Limited (2006) 80 ALJR 995 ('Batterham') and Old UGC Inc v Industrial Relations Commission of New South Wales in Court Session (2006) 80 ALJR 1018 ('Old UGC Inc'). Those cases do not involve a question of construction of an Act of the Commonwealth Parliament or whether the source of a denial of jurisdiction to the State Commission or Court involves invalidity in the provisions of the State Act conferring jurisdiction, by reason of s 109 of the Constitution. In other words, they do not engage the question of a State Act expressly seeking to limit federal jurisdiction (other than questions going to a possible or purported limitation upon the exercise of appellate jurisdiction by the High Court).
53 In Fish and Batterham the majority concluded that s 179 was not enlivened according to its terms as no decision or purported decision had been made by the Commission in Court Session. In Old UGC Inc, the s 179 point was not argued before the High Court. These cases are not authority for the proposition that notwithstanding s 179 (enlivened according to its terms), a supervisory court has jurisdiction to grant orders of prohibition directed to the Industrial Court to prevent the threatened making of a decision beyond jurisdiction or the conduct of proceedings that might lead to an order beyond jurisdiction as the point was not alive. Moreover, these cases do not in terms deal with constraints upon the exercise of federal jurisdiction.
54 The applicants in this proceeding seek to give expression to rights arising under Commonwealth law. A limitation upon those rights is said to arise by reason of s 179, a State law. Although an argument arises that a State law might, as a matter of construction, be intended by a State parliament to operate in such a way as to foreclose the exercise of jurisdiction by 'every court in the land' including a court exercising 'federal and constitutional jurisdiction' (Old UGC Inc per Kirby J, [69]), it seems to me, as an aspect of considering an application for transfer, that the proper approach to the application of s 179 of the State Act is that it does not operate to oust or limit the exercise of federal jurisdiction by this Court. I find it difficult to analytically identify how a provision such as s 179 of the IR Act could deprive the Federal Court of invested federal jurisdiction.
55 The further consideration and, it seems to me, the real focus of inquiry, is whether the Federal Court ought to embark upon a consideration of the question raised by these proceedings in circumstances where the Industrial Court has not considered whether it has jurisdiction. If an assumption is made for present purposes that the Industrial Court might ultimately be found not to have the jurisdiction sought to be exercised, it nevertheless has jurisdiction to determine whether it has jurisdiction. The Industrial Court is, by s 152 of the IR Act (and by amendment of the Constitution Act 1902 of the State of New South Wales) a superior court of record equivalent in status to the Supreme Court of New South Wales. An important question, as a matter of comity, is whether this Court ought to hear and determine the controversy framed by these proceedings and, if satisfied that an inconsistency arises depriving the Industrial Court of jurisdiction to make orders pursuant to s 106 of the IR Act, proceed to make orders preventing the further conduct of the Industrial Court proceedings, before the Industrial Court has determined whether it has jurisdiction (Fish per Heydon J [176] and [177]).
56 The question raised by this controversy is not simply one of whether there is threatened jurisdictional error in acting in reliance upon s 106 of the IR Act in respect of the proper isolation and application of one or more of the integers of the section itself, but a threshold question of constitutional inconsistency between the Commonwealth and State Acts resulting in invalidity in the provisions sought to be relied upon in the exercise of jurisdiction. It seems to me that the interests of the parties are served by the Federal Court considering and determining that matter, in the nature of a preliminary question. Since this proceeding joins parties comprising the Bank, those executives who acted for the Bank in the relevant transactions and all of the participants in the three Industrial Court proceedings, there seems to be utility in deciding the inconsistency question (and thus the validity of s 106 of the IR Act), as between these parties. In addition, the contention of the respondents that the Industrial Court ought to first determine its own jurisdiction as the repository of the power, needs to be qualified as each of the Industrial Court proceedings has been cross‑vested to the Supreme Court of New South Wales.
57 Accordingly, I am not persuaded that an order for transfer ought to be made by reason of a want of jurisdiction in the Federal Court or on the footing that the Court ought not to embark upon a consideration of whether there is a constitutional denial of jurisdiction to the Industrial Court, before the relevant forum first determines whether jurisdiction is denied to it by reason of constitutional invalidity arising out of the contended inconsistency.
58 It seems to me that the question of whether this proceeding should be transferred to the Supreme Court of New South Wales turns upon the specific controversy raised by the proceeding, the scope of any potential findings that might be necessary to quell that controversy (and evidence potentially to be called) and whether the interests of justice are served by providing for a speedy resolution of the inconsistency question and thus the constitutional validity of the provisions of the State Act.
59 As to those matters, the respondents by their defence rely upon the 'summonses for relief' filed in each of the Industrial Court proceedings. It is important therefore to identify the relief sought in those proceedings.
60 Paragraphs 1 and 2 of the Rossmick IRC summons as initially filed claim an order declaring the 'contracts, arrangements, conditions and collateral agreements between [some or all of the Rossmick applicants and some or all of the Bank respondents] whereby [Rossmick 1, Rossmick 2, Bradley, Chapman or Nolan] performed work in an industry are, or were, or became unfair and/or harsh and/or unconscionable and/or contrary to public interest or operated in such a manner'; and an order pursuant to s 107 prohibiting the Bank parties from 'entering into, or doing any other act which may reasonably be construed as being intended to induce other persons to enter into, an OMB Agency agreement or a Representations Deed on terms similar to those contained in the OMB Agency agreements and the Representations Deeds the subject of these proceedings'. Paragraph 246 of the Rossmick summons sets out a list of 'contracts, arrangements, related conditions and/or collateral arrangements' said to be unfair contracts under s 105 of the IR Act. Paragraphs 246(a) to (n) set out all of what might be regarded as the formal agreements in respect of the Bank branches in issue in that matter. Paragraph 246(o), (p) and (q) set out the 'Viable Business Representations' and particular 'Meeting Representations' said to have been made by Allsop, Quinn and Liddy leading to what are described as the 'arrangements' or 'collateral arrangements'. Paragraph 246(r) sets out the subject matter which is said to constitute the arrangements or collateral arrangements of which there are 10 different categories of subject matter.
61 Apart from the claim for a declaration as described, the specific orders sought by the applicants pursuant to s 106 of the IR Act in the Rossmick proceedings (IRC928/2007) as filed, in relation to the 'Maroubra Junction Branch', are these:
(a) an order declaring the 'OMB Agency Agreement' void ab initio save in regard to the provisions as to payment to Rossmick 1;
(b) an order declaring all guarantees and securities given by Rossmick 1 in support of the OMB Agency Agreement by the relevant respondents, void ab initio;
(c) an order declaring the 'Representations Deed' between the Bank and Rossmick 1, void ab initio;
(d) an order declaring the Business Term Loan Agreement between the Bank and Rossmick 1 void ab initio;
(e) an order declaring all guarantees and securities given by Rossmick 1, Bradley and Chapman to the Bank in support of the Business Term Loan Agreement, void ab initio;
(f) an order requiring the Bank to execute all such documents required to effect a discharge of all guarantees and securities given in support of the OMB Agency Agreement;
(g) an order requiring the Bank to execute all such documents required to effect a discharge of all guarantees and securities given in support of the Business Term Loan Agreement;
(h) in the alternative to (a) and (b), an order is sought with respect to the OMB Agency Agreement for the payment of money to Rossmick 1, Rossmick 2, Bradley and Chapman sufficient to 'discharge all liabilities and guaranteed liabilities', or alternatively, an order that an indemnity be given by the Bank in favour of those parties in relation to all such liabilities;
(i) in the alternative to (d) and (e), money orders are sought in relation to the Business Term Loan Agreement;
(j) orders are sought for the payment to Rossmick 1, Bradley and Chapman of monies paid, costs incurred and liabilities assumed by reason of entering into the OMB Agency Agreement, the performance of the OMB Agency Agreement, the termination of the OMB Agency Agreement, the enforcement of any rights under the OMB Agency Agreement; and any consequential actions that resulted from the OMB Agency Agreement;
(k) an order for the payment of money to Rossmick 1, Bradley and Chapman as fair recompense for work and services provided in connection with the establishment, operation and termination of the OMB Agency Agreement;
(l) an order for payment of compensation for lost opportunity in connection with the OMB Agency Agreement;
(m) an order for indemnity against any damages or other liabilities incurred by Rossmick 1, Bradley and Chapman imposed by any court in relation to the 'Representations Deed';
(n) an order that the Bank remove at its cost all fixtures and fittings from the relevant premises;
(o) an order that the Bank pay Rossmick 1 the purchase price or cost of building work, fixtures and fittings unable to be removed by Rossmick 1;
(p) in the alternative to (n) and (o), the Bank pay Rossmick 1 the purchase price or cost of all building work, fixtures, fittings etc purchased by Rossmick 1;
(q) an order that the Bank, Liddy, Quinn and Allsop pay the relevant monies contemplated by the orders in such proportion as is determined just in the circumstances.
62 The orders sought by the Rossmick parties in the Industrial Court proceedings in relation to the Hurstville Branch, are formulated in virtually identical terms. It can be seen immediately that although a declaration is sought that particular agreements (including the formal agreements) and arrangements said to have been reached or made, are unfair or became unfair, none of the orders sought by the applicants in those proceedings concern relief pursuant to s 106 in relation to any of the broader arrangements contended for by the respondents in the IRC proceeding. The relief sought is confined to the OMB Agency Agreement, other specific agreements related to that agreement or money claims to compensate the relevant respondents for losses referable to the specific agreements (or orders to secure a discharge of liabilities under the nominated agreements). The Summons for Relief in the Rossmick Industrial Court proceeding sets out in detail the facts relied upon by those applicants to support the declaration and the specific orders sought under s 106. By way of introduction to the particular pleaded facts concerning the Maroubra Junction OMB agency and then the Hurstville OMB agency, the applicants contend that:
14. Bradley, Chapman and Nolan intended to perform work in the Financial Services industry, and in particular by establishing and operating an OMB of the Bank of Queensland, through the establishment of Rossmick 1 and Rossmick 2 and their associated entities.
…
27. An OMB franchise or agency is established and governed by an OMB Agency Agreement which provides for the following:
(a) the franchisee or agent carries on the business of the OMB on its own account;
(b) the agent is required to administer applications by members of the public for financial services and banking products provided by the Bank;
(c) the agent is prohibited from conducting any business whatsoever other than business approved and authorised by the Bank;
(d) the agent receives fees or commissions from the Bank for any financial services or banking products provided to members of the public calculated by reference to the amount of the financial service or the type of banking product;
(e) the agent is required to adopt the business methods and practices of the Bank;
(f) the principal(s) of the agent are required to comply with training requirements in respect of banking and finance matters, stipulated by the Bank;
(g) the agent is required to employ a Branch Manager approved by the Bank;
(h) the agent must be a corporate entity approved by the Bank; and
(i) the agent is required to indemnify the Bank in respect of any damage or loss suffered by the Bank arising out of any act or omission on the part of the agent.
…
30. By reason of the provisions contained within it, the Bank's OMB Agency Agreement is, at all material times, an agreement pursuant to which work is done in the banking and/or financial services industry.
31. The said work is done in respect of:
(a) participation by the principals and employees of the agent in education, training and examination as required by the Bank as well as obtaining accreditation pursuant to the provisions of the Financial Services Reform Act 2001 (Cth);
(b) the location by the principals of the agent of suitable premises acceptable to the Bank from which to operate the OMB;
(c) the fitting out of the located premises by principals of the agent as a Bank branch to a standard approved by the Bank;
(d) the principals and employees of the agent undertaking the supervision of and conducting the business of soliciting and procuring applications for financial services from members of the public;
(e) the principals and employees of the agent processing, assessing and submitting any application for financial services to the Bank; and
(f) the principals and employees of the agent managing the customer relationship thereafter.
[emphasis added]
63 The Summons for Relief in the Rossmick proceedings sets out (pp 14‑64) a series of representations said to have been made by the Bank to the Rossmick parties. The pleading asserts a sequence of facts in considerable detail relating to a range of meetings at which representations are said to have been made. The representations include the first, second, third meeting representations; Maroubra approval letter representation; Maroubra credit criteria representations; fourth, fifth, sixth and seventh meeting representations; the Hurstville credit criteria representation; the first public representations; second public representations; eighth meeting representations; credit analysis representations; Hurstville pre‑opening representations; second misrepresentations; third public representations; ninth meeting representations; fourth public representations; fifth public representations; general comments and representations; third further representations; statements in relation to termination issues; and contentions in relation to various letters.
64 References to all of these matters are brought to a head by the contention at para 246 that the identified contracts, arrangements, related conditions and/or collateral arrangements are unfair contracts under s 105 of the IR Act. By para 247, the 'contracts and arrangements' are said to be 'unfair contracts'. They are said to be unfair 'based upon' 16 categories of conduct which include some of the meeting representations, consideration of 'documentation', 'letters', 'termination letters', 'default letters' and particular 'issues' as defined by the pleading including the 'Agency Agreement Issues'.
65 The ultimate case (in terms of the orders sought) put by the Rossmick parties is that the OMB Agency Agreements (and the specific agreements related to the OMB Agency Agreements) ought to be declared void on the footing that those contracts are or became unfair by reason of the conduct of the Bank parties. The arrangements and events set out at length in the Summons are relied upon to establish the unfairness ground (referred to in the declaration as to unfairness embracing the OMB Agency Agreements as well as other contended arrangements and agreements) which anchors the right to relief sought under s 106 (relief is also sought pursuant to s 107 to prevent the Bank parties engaging in conduct to induce others to enter into OMB agency agreements). However, the relief sought rests upon relief in relation to the OMB Agency Agreement and the specific related agreements (the guarantees and securities, the Representation Deed, the Business Term Loan Agreement and guarantees and indemnities related to that agreement), not the broader arrangements. The Jude and SME Industrial Court proceedings follow precisely the same pattern. In that sense, it is fair to say that the Rossmick proceedings are emblematic of the approach adopted by the applicants in the IRC proceedings.
66 The Bank in this proceeding seeks orders in relation to the OMB Agreement only.
67 The Bank says that whatever jurisdiction the Industrial Court may have under s 106 more broadly (leaving aside the 'covering the field' contention), the Commonwealth Act deprives the Industrial Court of jurisdiction to make orders concerning this contract for services as one made by an independent contractor under which work is done by the OMB parties. The Bank parties say that orthodoxy requires the Court to look to the OMB Agreement and construe the terms of that agreement to determine whether its true character is one of a contract for services and one to which an independent contractor is a party. The respondents also rely extensively (pp 15‑36 of the defence) on many of the terms of the OMB Agreement in answering that question and the s 106 relief relates to the OMB Agreement (and dependent specific agreements). The construction to be given to the OMB Agreement will also reveal whether the contract relates to the performance of 'work' by an independent contractor although the respondents plead in the Industrial Court proceedings that the OMB Agreement is one whereby work is performed in an industry. The respondents say, however, that work is also undertaken pursuant to the broader arrangements and that these arrangements (as previously described and reflected in the various pleadings), are relevant to the question of whether there is a contract 'for services' and engagement by the relevant entity as an 'independent contractor'. Although the respondents characterise these questions as the resolution of factual matters, the applicants say that the integers upon which the Commonwealth Act operates are to be determined as a matter of construction which does not require the Court to resolve a factual controversy.
68 Although the broader arrangements contended for by the respondents are said to be relevant to establishing an unfairness ground for the purposes of s 106 in the Industrial Court proceedings, once it is accepted that the OMB Agreement is a contract and work was done in the banking and financial services industry under it, the question of whether it is a contract for services to which an independent contractor is a party is fundamentally a question of construction of the agreement.
69 The respondents say that what is necessary is an analysis of the 'totality of the relationship' between the parties to determine whether the contract is one to which an independent contractor is a party. That proposition is based upon Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 and the judgment of their Honours Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ in Hollis v Vabu Pty Ltd (2001) 181 ALR 263 and particularly the observations at [24]. However, Hollis involved a question of whether a bicycle courier being one of about 25 to 30 individuals within the bicycle courier cohort providing courier services for and on behalf of Vabu,might properly be characterised as an employee or an independent contractor of Vabu for the purposes of determining whether Vabu was vicariously liable for the negligence of one of its couriers. In determining that question, the Court recognised that each bicycle courier was required to sign a three page document comprising on page 1 a pro forma layout for recording the personal details of the courier; a second page setting out an inventory sheet of radio equipment and uniforms and a third page which set out 11 points comprising terms. The content of the arrangements between Vabu and each of its bicycle couriers comprised not only the pro forma three page document but other important matters not forming part of the document such as the rate of remuneration for deliveries and other elements of work practices for bicycle couriers, adopted by Vabu. The arrangements were found to comprise both the written document and other terms not reduced to writing. The circumstances of the present case could not be further removed from the circumstances of Hollis. This case does not involve episodic arrangements for the provision of routine unskilled services. In this case, there is a significant detailed major commercial document which the respondents plead in their Industrial Court proceedings is one that provides for the establishment and governance of the OMB Agency. It is an agreement establishing and governing a significant commercial undertaking as between the parties to it and one which involves specific collateral documents such as the guarantees and securities given in support of it, a Representations Deed, a Business Term Loan Agreement and guarantees and securities given in support of that agreement.
70 The Bank parties concede for the purposes of this proceeding that the facts and contentions pleaded in the defence by the respondents ought to be 'taken at their highest' and accepted for the purposes of determining the matters in issue in this proceeding. It seems to me that the Court will not be required to engage in a broadly‑based wide‑ranging forensic inquiry into the factual matters contended for by the OMB parties in order to dispositively resolve the question raised by this controversy. It will be necessary to determine the documents that ought to be before the Court. They will include the OMB Agreement, documents referred to in the OMB Agreement, Bank manuals, the pleadings in each of the Industrial Court proceedings (of which there are three of relevance to this proceeding) and documents which the parties might agree are relevant to the issues.
71 It follows that this proceeding is capable of disposition of the question of whether the OMB Agency Agreements fall within s 7(1)(c) and s 5(1) of the Commonwealth Act without engaging the factual inquiry or investigation contemplated by proceedings such as the Traderight proceedings and other Federal Court proceedings which rely upon causes of action and remedial orders derived from the TPA, the FTA (NSW), the ASIC Act and common law causes of action or the factual controversy raised by the Industrial Court proceedings in which it is necessary to determine whether the unfairness ground is made out.
72 Notwithstanding that conclusion, there might nevertheless be good reasons why this proceeding ought to be transferred to the Supreme Court of New South Wales. Those reasons are presumably predicated upon an assumption that all proceedings which raise the factual controversy identified by the OMB parties will be heard and determined together and this proceeding, if transferred to that Court, could conveniently be heard and determined with those proceedings.
73 The respondents have identified a number of matters which suggest that the interests of justice are served by making a cross‑vesting order [45]. As to those matters, it seems to me that there is not likely to be significant duplicated costs as the scope of the controversy in this proceeding is in truth quite limited, turns upon a construction of documents and legislation and involves an acceptance of the facts pleaded by the respondents in their defence assessed against the background of the pleadings in the Industrial Court proceedings incorporated by reference. No doubt the costs associated with assembling the relevant documents and preparing material for this application will not be lost and will prove to be costs applied in dealing with the issues raised by this proceeding. A body of material has already been prepared and filed in connection with these applications and a proportion of that material might be utilised in the conduct of the matter. Obviously enough, I accept that costs will be incurred in conducting and hearing the proceeding. However, the question raised by this proceeding must in any event be addressed by the parties and costs will necessarily be incurred in doing so. The prospect of additional costs beyond those which would otherwise have been incurred needs to be considered against the background of costs which might be saved in connection with a number of other proceedings, by dealing with the inconsistency question. Although a determination of the inconsistency question in this proceeding as framed will not determine that matter, if it be alive, in any other proceeding involving other parties (and some of these parties), a determination of the construction questions and the scope and operation of the relevant provisions of the Commonwealth Act and the State Act is likely to assist the parties in a broader and useful way. Moreover, prima facie, the applicants in the proceeding are entitled to bring a controversy to the Court for resolution and engage the jurisdiction of the Court on the question they seek to resolve. An applicant ought not to be sent away or deprived of the Court's exercise of jurisdiction on the question framed unless the interests of justice require such a step.
74 It is true that other proceedings will require a forensic examination of the relationship between the parties with a view to determining the content of representations alleged to have been made by the Bank parties, reliance upon those representations by the respondents, the accuracy of statements made and the basis for them and the consequences of reliance. Those matters will require detailed findings of fact. Those issues are not alive in this proceeding.