Bowker & Anor v Software Engineers Australia

FIRST RESPONDENT: Software Engineers Australia (NSW) Pty Limited (formerly Prophecy Technologies Pty Limited) (ACN 006 513 499)

PARTIES : SECOND RESPONDENT: Timothy Arundell

THIRD RESPONDENT: Prophecy Technologies (Southern Region) Australia (NSW) Pty Ltd (ACN 087 222 419)

FOURTH RESPONDENT: ACN 087 222 357 Pty Ltd

FIFTH RESPONDENT: Prophecy People Pty Ltd (ACN 007 248 286) FILE NUMBER: IRC 291 of 1999 CORAM: Schmidt J CATCHWORDS : Unfair contract - notice of motion seeking leave to proceed on fifth amended summons - leave to amend money orders granted - leave to amend orders not earlier sought as result of alleged oversight refused - construction of section 108B of the Industrial Relations Act 1996 - question as to whether amendment to summons flowing from joinder judgment are time barred by s108B - leave to amend summons in relation to joinder of fourth and fifth respondents granted in part - applicants found to have no standing to challenge alleged collateral arrangements between the respondents - leave to amend summons in relation to collateral arrangement refused Corporations Law LEGISLATION CITED : Industrial Relations Act 1996 Industrial Arbitration Act 1940 Interpretation Act 1987 Bowker & Anor v Software Engineers Australia (NSW) Pty Ltd & Ors [2002] NSWIRComm 135 Chang Jeeng v Nuffield (Australia) Pty Ltd (1959) 101 CLR 629 Fisher v Madden (2002) 114 IR 119 Heath Group Australiasia Pty Ltd v Pengly & Ors [2001] NSWIRComm 241 Kennedy v Contract Transport Solutions Pty Ltd [2003] NSWIRComm 158 CASES CITED : Majik Markets Pty Ltd v Brake and Service Centre Drummoyne Pty Ltd (1991) 28 NSWLR 443 Maxwell v Murphy (1956) 96 CLR 261 Metrocall Inc v Electronic Tracking Systems Pty Ltd (No 2) (2000) 102 IR 309 R v Commonwealth Court of Conciliation and Arbitration, Ex parte Barrett (1945) 70 CLR 141 State of Queensland & Anor v JL Holdings Pty Ltd (1997) 189 CLR 146 Yrttiaho v The Public Curator of Queensland (1971) 125 CLR 228 HEARING DATES: 04/29/2003; 04/30/2003; 06/23/2003 DATE OF JUDGMENT: 07/10/2003

APPLICANTS: Mr D Knoll of counsel SOLICITORS: Haywards

FIRST, SECOND AND THIRD RESPONDENTS: Mr J Phillips of counsel LEGAL REPRESENTATIVES: SOLICITORS: Cutler, Hughes & Harris

FOURTH AND FIFTH RESPONDENTS: Mr R Alkadamani of counsel SOLICITORS: Pipers Lawyers & Advisors

JUDGMENT: - 19 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

MATTER NUMBER 291 OF 1999 GEOFFREY BOWKER & ANOR v SOFTWARE ENGINEERS AUSTRALIA (NSW) PTY LIMITED & ORS Application under section 106 of the Industrial Relations Act 1996

1 This judgment deals with a motion filed by the applicant on 29 November 2002, seeking that the applicants be granted leave to proceed on 'the fifth amended summons' annexed to the motion.

2 On 11 June 2002, I gave an interlocutory judgment (Bowker & Anor v Software Engineers Australia (NSW) Pty Ltd & Ors [2002] NSWIRComm 135), ordering the joinder of the fourth and fifth respondents and that the applicants file and serve their amended summons, as a matter of urgency. This judgment deals with the question of whether the fifth amended summons gives effect to those joinder orders and whether the applicants should be given leave to amend the summons in a number of other ways.

3 The second aspect of the amendments sought, which I will characterise as the 'oversight amendments', were said to be amendments of which the first to third respondents had been aware, since 11 September 2000. They arose because, it was explained for the applicants, their legal advisers had proceeded in the erroneous understanding that the applicants had been granted leave to proceed in respect of those amendments, which were contained in a document entitled the 'third amended summons'.

4 The third aspect of the amendments sought was to update the money orders being pressed in the proceedings, a matter dealt with in earlier correspondence between the parties and in the exhibits.

5 After the joinder judgment, the matter was referred to Justice Marks for further conciliation. In August 2002, his Honour also dealt with the question of the fourth amended summons then pressed by the applicants, for the purpose of the further conduct of the proceedings, including the conciliation. The respondents opposed the amendments, complaining that the applicants had filed the fourth amended summons without leave, without consent and without filing a motion, in circumstances where the amendments went beyond what had been permitted by the joinder judgment.

6 It then became apparent that there was an issue between the parties as to whether the hearing of this case had proceeded on the basis of the second, or the third, amended summons, even though, as was later confirmed, the third amended summons had not ever been filed in the proceedings. Marks J took the view that as the result of the joinder judgment, the applicants were entitled to amend the summons to reflect the joinder of the fourth and fifth respondents and to include such assertions as they wished to make against those respondents, but that otherwise, the status quo should remain, so far as the other respondents were concerned.

7 His Honour heard the parties again on 18 September 2002 and took the view that substantial changes were sought in the fourth amended summons, which did not follow the joinder judgment and which gave rise to new allegations against the first to third respondents. Leave to amend the summons was not granted and an order for the costs of the proceedings on 23 August was made against the applicants. The conciliation then conducted by his Honour failed, leading to the filing of the motion the subject of this judgment in late November.

8 The motion seeking leave to proceed in respect of the fifth amended summons was listed for hearing in April 2003, prior to the resumption of the hearing proper in June. Regrettably, the hearing of the motion did not conclude, leading to the adjournment of the hearing of the proceedings proper, to October this year.

9 The position of the first, second and third respondents was that prior to the joinder judgment, the hearing of this matter had proceeded on the basis of the second amended summons and that it would not be accepted that the failure to seek leave to proceed on the basis of the third amended summons, had resulted from any oversight. Rather, it was argued, this had resulted from a tactical decision made in the proceedings by the applicants. The oversight amendments were thus objected to, as was the amendment to the money orders sought. The amendments sought in relation to joinder, were argued to go beyond what had been sought and granted in the joinder judgment; that in part the amendments sought relief which the applicants had no standing to seek and that some aspects of the amendments were sought out of time, having regard to the provision of s108B of the Act. It was also argued that the decision in Kennedy v Contract Transport Solutions Pty Ltd [2003] NSWIRComm 158, as to the construction of that section had been wrongly decided and would not be followed.

10 The position of the fourth and fifth respondents was similar to that of the other respondents. The applicants argued that Kennedy had been correctly decided and that they had standing to seek the new relief sought against the fourth and fifth respondents.

11 I deal firstly with the amendment proposed in relation to the money orders sought pursuant to s106(5) of the Act. The respondents argued that the amendment would not be allowed for a variety of reasons, including that some aspects of the claim made had been met by the respondents making the payments sought during the course of the hearing, albeit without admission that they were due to the applicants. There was no issue that certain payments had been made and that those payments were not referred to in the fifth amended summons.

12 The making of those payments is a matter which will require consideration in the final judgment. I am satisfied, however, that this is not a proper basis for refusing the amendment sought to be made. The summons specifies, in part, the money which it is claimed was due to the applicants upon termination of the parties' contracts, but which was then unfairly withheld and provides particulars of the basis upon which that complaint is advanced. The amendment brings with it no surprise, clarifies what lies between the parties in the litigation and is one, which in my view, is properly available to be made at this stage of the proceedings. (See State of Queensland & Anor v JL Holdings Pty Ltd (1997) 189 CLR 146.) Granting the leave will do no injustice as between the parties. To the contrary, it is of assistance to the parties and the Court in a proper determination of the matters which lie between them.

13 I next deal with the 'oversight amendments'. The approach of the High Court in JL Holdings at p155 is pertinent: 'In our view, the matters referred to by the primary judge were insufficient to justify her Honour's refusal of the application by the applicants to amend their defence and nothing has been made to appear before us which would otherwise support that refusal. Justice is the paramount consideration in determining an application such as the one in question. Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties. In taking an opposite view, the primary judge was, in our view, in error in the exercise of her discretion.'

14 While this encompasses an undoubtedly wide approach to the question of when a discretion should be exercised to permit pleadings to be amended, it is not so wide as to require every alteration which a party decides upon, at any stage of the proceedings. At the end of the day, justice must still be achieved, as between the parties.

15 I am satisfied in this case that the 'oversight amendments' should not be allowed at this stage of the proceedings. This motion was filed in November 2002, after the joinder judgment given in June, the later proceedings before Marks J earlier referred to and after some 3 days of hearing in December 2000, 3 further days in August 2001 and 3 further days in March 2002, as well as the joinder hearing in April 2002. The stage which the proceedings had reached, when they were adjourned to permit the joinder argument, was that Mr Arundell, the second respondent, was in re-examination.

16 It was the evidence Ms Costigan, (the solicitor for the applicants), that a proposed third amended summons was served on 11 September 2000 and that 'An application for leave to amend and rely on the third Amended Summons was never made. This was an oversight.'

17 The evidence showed that on 22 September 2000, the first to third respondents' solicitors advised that they did not consent to the amendment proposed, which it was said introduced new allegations and grounds of unfairness, which were unsupported, unparticularised and which unfairly prejudiced the preparation of the respondents' case. The necessity of an adjournment application was foreshadowed. On 16 October the applicants' solicitor advised that leave would be sought to press the proposed amendments. On 31 October, the respondents sought particulars as to how the money claims advanced in the third amended summons had been calculated. After further correspondence, on 28 November the respondents sought confirmation that the applicants intended to rely on the third amended summons and would move the Court for leave to do so. On 29 November, the applicants' solicitors advised that they were still conferring with counsel and would advise their position later that day. On 30 November the respondents' solicitors wrote again, pressing for a reply. The respondents then sought to have the matter relisted, prior to the commencement of the hearing on 4 December.

18 When the matter came on before me on 1 December 2000, it was announced by Mr Phillips, counsel for the respondents, that he had been advised by Mr Knoll, counsel for the applicants, that it was not intended to pursue the third amended summons. This was not disputed and the hearing on 4 December and thereafter thus plainly proceeded on the basis of the second amended summons, filed in August 1999, the proceedings having commenced in January 1999. The applicants had to that point already twice amended the summons. It was the summons then before the Court. The third amended summons was not, in fact, ever filed and no leave to proceed in respect of it was ever sought, or granted.

19 While Ms Costigan, in cross examination, denied that a positive decision had been made not to press for leave to proceed on the basis of the third amended summons, the correspondence between the parties and the transcript of the proceedings inescapably leads to the position that the case has been heard on the basis of the second amended summons, as the result of steps taken deliberately by the applicants in the way in which they have pursued their case. The evidence does not demonstrate that the third amended summons was not pursued as the result of any oversight.

20 The authorities have made clear that litigants ought not to be punished for the errors made by their legal advisers and that Courts should determine the issues between the parties. That does not leave room for amendments to initiating process sought to be pursued at a stage of the litigation such as this, because a party wishes to revisit tactical decisions earlier made in the course of the conduct of the litigation, or as the part of an ongoing endeavour to 'fine tune' the case being advanced. To permit such an approach would undoubtedly work injustice upon the other parties to the proceedings and would make the orderly conduct of litigation such as this, extraordinarily difficult to manage and potentially costly, in a way out of all proportion to the issues which lie between the parties.

21 In this case, given what is at issue between the parties to the litigation and the undoubted cost of the litigation thus far, I am far from satisfied that money orders could provide a proper adjustment between the parties, were the amendments sought now to be permitted, so as to ensure that justice is done between the parties.

22 That is particularly the case where s109 of the Act requires the Court to conciliate all applications brought under s106 and only to determine 'the matter', 'when, in the opinion of the Commission, all reasonable attempts to settle the matter by conciliation have been made but have been unsuccessful'. Significant amendments to a summons may be such that an obligation arises under the Act for further conciliation to be conducted, in order to ensure that the obligation imposed upon the Court by s109 of the Act has been met. Here, there have already been two unsuccessful conciliations conducted prior to the filing of the fifth amended summons, in relation to other claims advanced under earlier summonses and as the result of the joinder judgment.

23 It follows that leave to amend the summons in relation to the 'oversight amendments' must be refused.

24 I turn then to the arguments in relation to the joinder amendments. Some of the amendments seek to differentiate, where necessary, between the first to third respondents on the one hand and the fourth and fifth respondents on the other. One complaint made by Mr Alkadamani, counsel for the fourth and fifth respondents, was that the amendments were deficient in part, because they did not make clear that particular complaints were advanced against the first to third respondents, rather than also against the fourth and fifth respondents. One example of this was contained in paragraph B11 of the fifth amended summons. Mr Knoll accepted this, submitting that the paragraph could be limited to the first to third respondents. This was not accepted in relation to other claims made, for example in relation to further disparagement, given Mr Arundell's directorship of the fourth and fifth respondents.

25 I am satisfied that this complaint was well founded and the adjustment sought by Mr Alkadamani should be made by the applicants. This follows squarely from the arguments advanced at the joinder hearing. The motion on which the applicants were then moving sought that the fourth and fifth respondents be joined. The grounds advanced in support of the orders sought and the argument at the joinder hearing made clear that the joinder application flowed from the undertakings given to the Court by the first to third respondents, in relation to the preservation of the third respondent's assets and the evidence which suggested that the third respondent had ceased conducting its business, which was then being conducted by the fourth and fifth respondents, so that the assets had not been preserved, as had been undertaken. It was concluded at paragraphs [21], [24] and [27] of the joinder judgment that: 21 The evidence also suggests that the applicants have a basis for concern that the current respondents will not be in a position to meet any orders made against them in these proceedings; that there is a basis for believing that the former business of the current corporate respondents is being conducted by the proposed new respondents and that, unless the joinder is ordered, the Court's procedures might be frustrated.

24 Given the basis upon which the third respondent was joined in these proceedings, in settlement of an application for a Mareva type order, the evidence to which I earlier referred; and the above mentioned authorities, I am satisfied that the application for joinder must be granted in the circumstances presently before the Court.

27 Proceedings brought under s106 of the Industrial Relations Act 1996 ('the Act') are of a quite different nature. Further, the motion currently before the Court concerns a joinder application following upon the settlement of an earlier application for Mareva orders, on particular terms, namely the joinder of the third respondent to ensure that the relevant assets remained to be available to meet any orders made by the Court in these proceedings. A further Mareva order is not now sought by the applicants. Nor, in my view, must it be, given the relevant authorities in relation to entities against whom orders may be made under the section. The proposed respondents fall into the class discussed by Barwick CJ in Brown v Rezitis.

26 As was conceded for the fourth and fifth respondents, it follows that the order sought in paragraph 25 of the fifth amended summons provides a sufficient basis for money orders to be made against the fourth and fifth respondents, if the applicants succeed in their claims against the first to third respondents. This order was supported by the opening words of paragraph B12, that 'the second, third, fourth and fifth respondents were at material times participants in, and/or the beneficiaries of the unfairness set out herein'.

27 Other of the new orders sought in relation to the contract and collateral arrangement referred to in various of the orders, such as orders 25A and 25B, by way of contrast, introduce entirely new claims in relation to all of the respondents, not dealt with at the joinder hearing, or new claims against the fourth and fifth respondents. These claims are also unnecessary, as a foundation for any money order to be made against the fourth and fifth respondents, or indeed the other respondents, if the applicants succeed in their claims against the first to third respondents.

28 Some of these orders seek similar relief against the fourth and fifth respondents to that which might be granted in a mareva injunction and other relief, not dealt with at the joinder hearing, or in the proceedings proper to date. No evidence was directed to the necessity for such amendments, at this stage of the hearing. While some reference was made in submissions to a concern that Mr Arundell, the second respondent and the sole director of the second and third respondents and also of the fourth and fifth respondents, might at some time take steps to dissipate the assets of the fourth and fifth respondents, that, it seem to me does not provide a proper or sufficient basis for these amendments now to be permitted.

29 There was no evidence that such steps have been taken. Nor has there been established an evidentiary basis for the existence of such a concern on the part of the applicants. Were such a concern, in truth to exist, the proper way to deal with it is by way of an appropriate application for further injunctive relief, directed against the fourth to fifth respondents. It is also relevant that there has been no affidavit sworn by the applicants in support of the fifth amended summons. While I accept that, strictly, there may be no requirement for such an affidavit to be filed prior to leave to amend being granted, its absence assists me in the conclusion that no basis for the granting of leave as to these amendments has been established.

30 My conclusion in this respect, was further confirmed by another argument advanced by the respondents. In paragraph B12 of the fifth amended summons, an alleged collateral arrangement between the third, fourth and fifth respondents, by the second respondent is described. This arrangement was alleged to have involved the transfer of assets to the fourth and fifth respondents, so as to avoid the consequences of orders which might be made in favour of the applicants in the proceedings. There was no issue that the applicants were not party to that alleged arrangement.

31 It was argued for the respondents that it followed that the applicants had no standing to bring the claims made before the Court as to the collateral arrangement, having regard to the provisions of s108 of the Act. It provides: 108. Who may apply for order

An order may be made under this Division on the application of:

(a) any party to the contract, or (b) any person who, but for the making of such an order, would be a party to the contract, or (c) an industrial organisation of employers whose members employ persons working in the industry to which the contract relates, or (d) an industrial organisation of employees whose members are employed in the industry to which the contract relates, or (e) an association registered under Chapter 6 of which a party to the contract is a member, and not otherwise

32 The respondents relied upon the judgment of Marks J in Heath Group Australiasia Pty Ltd v Pengly & Ors [2001] NSWIRComm 241, where his Honour held at [21] to [22]: 21 The jurisdiction and power to make orders under s 106 is derived from subs (1). Once there is a finding of unfairness orders may be made declaring void or varying any contract whereby a person performs work in any industry. The contract is defined in s 105 relevantly to mean "any contract or arrangement, or any related condition or collateral arrangement ….". (I note, for completeness, that the related condition or collateral arrangement does not of itself need to be one whereby a person performs work in any industry, so long as the contract or arrangement falls within this description). Accordingly, what may be the subject of an order made under s 106(1) is a contract, an arrangement, or a condition related thereto or an arrangement collateral thereto. By s 108 an application for such an order may be made, for relevant purposes, only by a party to the contract, the arrangement, the related condition or the collateral arrangement which is the subject of the order sought under s 106(1). It follows that in these proceedings the applicant Heath may seek orders declaring void the contract of employment or arrangement between itself and Mr Pengly and itself and the second respondent E.U.A. Investments Pty Ltd. It follows also that the applicant Heath has no standing to seek an order declaring void the arrangement alleged to be made between the first respondent Pengly and the third and fourth respondents, Hanning and Miller & Associates Insurance Broking Pty Ltd even though that arrangement is alleged to be collateral to the contract of employment between Heath and Pengly. This is because the applicant Heath is not a party to the arrangement as alleged.

22 The matter may be tested in another way. If it is assumed that the construction contended for by Mr Kite is correct, then a party to a collateral arrangement would be entitled to seek an order under s 106 to vary or avoid the underlying contract to which the arrangement was collateral. The collateral arrangement could, conceivably, be one by which a motor vehicle dealer supplied a motor vehicle to an employee pursuant to separate arrangements made between firstly the employer and the employee and secondly the employer and the motor dealer, or even the employee and the motor dealer. In either scenario, the motor dealer would have standing as a party to the collateral arrangement to have the underlying contract of employment varied or otherwise attacked under s 106 as being unfair, perhaps as it impacted upon the motor dealer. Such a result would, it is suggested, be outside what is contemplated by a more orthodox reading of s 108 in the context of the provisions of ss 105 and 106.

33 The applicants relied upon the judgment of the Full Court in Metrocall Inc v Electronic Tracking Systems Pty Ltd (No 2) (2000) 102 IR 309, where the Full Court upheld a conclusion which I had reached at first instance. At [16] and [17] it was held: 16 We consider that his Honour's analysis of s 108 is correct and, in particular, that its intention is to limit those who may bring an application under s 106 to the parties to the contract, that word being given the extended meaning provided to it by s 105. It is to be observed that s 105 is a definitions provision for the whole of Part 9 of the Chapter 2 of the Act, which Part includes both s 106 and s 108. Further, s 105 plainly states that the definitions apply to Part 9 without any qualification. There is, therefore, no basis in either the text of s 105 or in the construction of Part 9 viewed as a whole whereby it could be found that a reference to a "contract" in s 108 is to be construed other than by reference to the extended meaning of that term provided by s 105.

17 Her Honour was determining the interlocutory application before her on the basis of the limited evidence filed at that stage by the first respondent in the proceedings proper and the second respondent in relation to his motion. It is unnecessary for us to traverse that evidence. It is, however, sufficient to note the primary ground the first respondent relied on in the summons originally filed was that it performed work in an industry pursuant to a contract from approximately August 1991 whereby the appellant granted an exclusive licence to the applicant to market, lease, operate and maintain a system referred to as the "Pronet Tracking System" in Australia. There was evidence to support that claim. There was also evidence which showed that the second respondent was the managing director of the applicant and personally carried out the significant majority of the work in relation to the grant of the exclusive licence and attempts to market the system and to obtain contracts in relation to it. As such, it was open to the trial judge to find for the purposes of the motion that there was, or was arguably, an arrangement involving the appellant and both respondents to which the second respondent was a party. Accordingly, it was therefore open to the trial judge to find the second respondent could have himself commenced proceedings under s 106 in relation to that arrangement on the basis that he was a party to that arrangement and therefore a party to a contract, in its extended sense, pursuant to s 108.

34 In this case, the question of standing must be resolved against the applicants. They have moved the Court in relation to the contracts between the second applicant and the first respondent. Like in Metrocall, the first applicant had standing to bring the claim, because it was he who performed the work under that contract. This provided an evidentiary basis for the existence of a wider arrangement, of which he, too, was a party and entitled him therefore, by s108 of the Act to bring an application for relief pursuant to s106 in respect of that contract and arrangement.

35 The new claims sought to be advanced by the applicants concern an alleged collateral arrangement, between the various respondents and to which the applicants are acknowledged never to have been a party. While the construction of s108 (a) must be approached in the context of the definition of contract in s105, which includes collateral arrangements, s108 still requires that the applicant be a party to such a collateral arrangement, in order for an application under s106 in respect of that collateral arrangement to be available to be brought. Like the result in Heath Group, here it is clear that the applicants were not party to the collateral arrangement which they seek to challenge and hence have no standing to do so in these proceedings.

36 I finally turn to the questions raised as to whether the amendments now proposed to the summons as a result of the joinder judgment, can still be permitted, having regard to the provisions of s108B of the Act, it being argued that Kennedy was wrongly decided.

37 I cannot accept the submissions advanced by the respondents as to the proper construction of s108B. In the first place, the amendments which I propose to allow flow from the joinder judgment given in June 2002, prior to the enactment of s108B. Section 30(1)(b) of the Interpretation Act 1987 makes it plain that such an amendment cannot be time barred by the new section. Section 30(1) provides: 30. Effect of amendment or repeal of Acts and statutory rules

(1) The amendment or repeal of an Act or statutory rule does not:

(a) revive anything not in force or existing at the time at which the amendment or repeal takes effect, or (b) affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule, or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or (d) affect any penalty incurred in respect of any offence arising under the Act or statutory rule, or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty, and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed.

38 Furthermore, I do not accept that Kennedy was wrongly decided. Peterson J was there considering whether s108B was intended to operate prospectively, or retrospectively. His Honour concluded that prior to the date of assent, 24 June 2002, there was no time bar upon applications brought under s106 of the Act and that any substantive right which an applicant obtained prior to that date, to commence an action under s106 of the Act, would not be affected by the enactment of s108B, which had no retrospective operation. I agree.

39 The respondents argued that s108B(2), evinced an intention that the section would operate retrospectively. The section provides: 108B. Time for making application

(1) An application for an order under this Division in relation to a contract that has been terminated must be made not later than 12 months after the termination of the contract.

(2) The Commission does not have jurisdiction to extend the time for making any such application or to accept an application made after the time prescribed by subsection (1).

40 As a matter of statutory construction, I am well satisfied that this provision does not deal with, or touch upon, the retrospective operation of the newly enacted time bar. Rather, it deals with the question of whether the Commission has a discretion to permit an application to be brought outside the new limitation period imposed by the section. Such discretions exist elsewhere in the Act. (See for example s85(3)). Section 108B makes clear that there is no such discretion in the circumstances of this new limitation period.

41 The respondents also argued that s30(1)(c) of the Interpretation Act had the effect that s108B operated retrospectively. Again, I disagree. Peterson J followed the approach of the High Court in Maxwell v Murphy (1956) 96 CLR 261. As Williams J discussed in the context of the common law position at pp277-8: Statutes of limitation are often classed as procedural statutes. But it would be unwise to attribute a prima facie retrospective effect to all statutes of limitation. Two classes of case can be considered. An existing statute of limitation may be altered by enlarging or abridging the time within which proceedings may be instituted. If the time is enlarged whilst a person is still within time under the existing law to institute a cause of action the statute might well be classed as procedural. Similarly if the time is abridged whilst such person is still left with time within which to institute a cause of action, the abridgment might again be classed as procedural. But if the time is enlarged when a person is out of time to institute a cause of action so as to enable the action to be brought within the new time or is abridged so as to deprive him of time within which to institute it whilst he still has time to do so, very different considerations could arise. A cause of action which can be enforced is a very different thing to a cause of action the remedy for which is barred by lapse of time. Statutes which enable a person to enforce a cause of action which was then barred or provide a bar to an existing cause of action by abridging the time for its institution could hardly be described as merely procedural. They would affect substantive rights.

42 At p267, Dixon CJ also discussed the distinction between rights and procedures, observing that the distinction 'is clear enough in principle and its foundation in justice is apparent. But difficulties have always attended its application. In some cases they have been due to the discovery in the nature or context of the legislation or in its subject matter of indications, whether faint and conjectural or strong and persuasive, of a desire to cover situations already existing. In other cases the difficulty has been traceable to the inveterate tendency of English law to regard some matters as evidentiary or procedural which in reality must operate to impair or destroy rights in substance. Again, enactments in truth conferring or denying rights are not seldom expressed in terms of remedy.

43 The views expressed by Williams J were discussed in Yrttiaho v The Public Curator of Queensland (1971) 125 CLR 228. Gibbs J observed at p241 that Dixon CJ recognised a similar distinction in Chang Jeeng v Nuffield (Australia) Pty Ltd (1959) 101 CLR 629 at pp636 and 638.

44 The common law must now be considered in the context of s30 of the Interpretation Act earlier quoted. In Yrttiaho, Gibbs J in dealing with the provision of the Act's Interpretation Acts 1954 to 1962(Q), said at p244 'I do not, of course, deny that the expression "right" standing alone, would include a right belonging to the area of procedure', but went on to construe s20(1)(c) of that Act as being concerned with substantive rights, rather than procedural rights. A similar question of construction arises in relation to s30(1)(c) of the Interpretation Act, which I find it unnecessary here to decide, for reasons which I will explain.

45 In Fisher v Madden (2002) 114 IR 119, the Court of Appeal discussed the operation of s106 of the Act, in the context of the operation of the Corporations Law. Meagher JA observed at [12] that 'Section 106 does not of itself confer any rights or obligations on anyone. Not only does she' (referring to the applicant in the proceedings) 'not have a right to a quantifiable order, she does not have a right to an order at all. She has the right to apply for an order, nothing more.' At [13], his Honour went on to say that the section granted 'the bare right to make a claim, nobody knowing whether it will succeed or not, or if so in what amount, or subject to what terms or condition.'

46 The respondents relied upon these observations, to urge the conclusion that the new limitation period was procedural in nature and did not affect substantive rights, so that the presumption against retrospective operation of the legislation would not arise. I do not agree at all with those submissions.

47 Reference to the decision of Sheller JA, in Madden, with whom Beazley JA agreed, explains why. His Honour referred to Majik Markets Pty Ltd v Brake and Service Centre Drummoyne Pty Ltd (1991) 28 NSWLR 443, where Mahoney JA described s88F of the Industrial Arbitration Act 1940, a predecessor to s106 of the Act, as conferring no rights or obligations, but rather, conferring particular jurisdiction on the then Industrial Commission. Handley JA there referred at p246 to the decision of the High Court in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at p155 and pp165-6, in relation to legislation such as s88F, which confers jurisdiction on a Court to grant particular relief, as creating rights. Sheller JA concluded at [45]: 'Section 88F therefore creates substantive rights and since proceedings under the section comprise a suit or action (see Minister for Youth and Community Services v Health and Research Employees' Association of Australia, NSW Branch (1987) 10 NSWLR 543 at 560) there is every reason for concluding that it gives rise to rights of action.'

48 It follows that the right, so described, granted by s106 of the Act, is plainly a right of action whereby this Court may declare void or vary an unfair contract, as defined, and make money orders in connection with such a contract, just in the circumstances of the case. The right is not one to enforce existing rights or obligations, but to have new rights created. It is a right granted by the section, which also provides the only remedy by which that right can be enforced. It follows that s108B, introducing a new limitation upon the exercise of the right, cannot be regarded as merely procedural, so as to have retrospective effect. To so approach the section would have the effect of depriving parties of existing rights of action. The section may not properly be so construed.

49 The result is that I must reject the submission that Kennedy was wrongly decided and that the amendments to the summons flowing from the joinder judgment, are now time barred by s108B of the Act. The joinder amendments flowing from the joinder judgment must thus be permitted.

50 For all of the reasons given, I decline leave to amend the summons, other than in relation to the clarification of the money orders sought; the clarification of those aspects of the claims which are directed to the first and third respondents, rather than to the fourth and fifth respondents, as earlier outlined and the joinder of the fifth and sixth respondents, so that money orders might be made against them, in the event that the applicants succeed in the claims which they advance against the first to third respondents.

51 The applicants should file and serve the amended summons in terms consistent with this judgment, within 14 days hereof. ------------------------

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.