Euphoric Pty Limited v Ryledar Pty Limited and Anor

AZIR MAGAR SIDHOM Second Respondent PARTIES :

Matter Number IRC 5915 of 2001 ___________________________

RYLEDAR PTY LIMITED First Appellant

AZIR MAGAR SIDHOM Second Appellant

EUPHORIC PTY LIMITED Respondent FILE NUMBER: 5623 and 5915 of 2001 CORAM: Wright J President at 1; Walton J Vice-President at 1; Schmidt J at 15 CATCHWORDS : Appeal - application for leave to appeal and appeal against an unfair contract - contract for sale of petroleum products - jurisdiction - found contract not one under which work was performed - construction of s105 and s106 of Industrial Relations Act 1996 - Nagle v Tilburg considered - argument that relief confined to work which the contract required be performed - narrow construction rejected - trial judge refused to disqualify himself from giving judgment on motion, after conciliation - no basis for disqualification found - leave to appeal granted, except as to disqualification point - appeal upheld as to jurisdiction - appeal dismissed as to construction Industrial Arbitration Act 1940 LEGISLATION CITED : Industrial Relations Act 1996 Sales of Goods Act 1923 Alsford v Castech Pty Ltd [2001] NSWIRComm 259 Bell & Anor v Macquarie Bank Ltd & Anor (No 4) (1999) 93 IR 191 Booth v Kritikos Developments Pty Limited (1995) 59 IR 228 Brown v Rezitis (1970) 127 CLR 157 Bull v Attorney General (NSW) (1913) 17 CLR 370 CIC Insurance Ltd v Bankstown Football Club Ltd (1995) 187 CLR 384 Hall v Strathfiled Group Ltd [2001] NSWIRComm 266 CASES CITED : Heath Group Australasia Pty Ltd v Pengly [2001] NSWIRComm 241 In Ex parte VG Haulage Services Pty Ltd, Re Industrial Commission (NSW) [1972] AR (NSW) 298 Kostakis & Anor v New World Oil & Developments (1997) NSWIRComm 84 (25 July 1997) Nagle (T/as WD and JL Nagle & Sons) v Tilburg (1993) 51 IR 8 Production Spray Painting & Panel Beating Pty Ltd & Others v Newham & Others (1991) 27 NSWLR 644 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 335 Stevenson v Barham (1977) 136 CLR 190 Virtue v New South Wales Department of Education and Training (1999) 92 IR 428 HEARING DATES: 03/28/2002; 04/12/2002 DATE OF JUDGMENT: 06/20/2002

APPELLANT IN IRC 5632 OF 2001 RESPONDENT IN IRC 5915 OF 2001 ___________________________________________

Mr F Lever of counsel SOLICITORS: Cowley Hearne

LEGAL REPRESENTATIVES: RESPONDENTS IN IRC 5632 OF 2001 APPELLANTS IN IRC 5915 OF 2001 ___________________________________________

Mr B Coles QC with Mr M Ashhurst of counsel SOLICITORS: Mallesons Stephen Jaques

JUDGMENT: 1 INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH

CORAM: Wright J, President Walton J, Vice-President Schmidt J DATE: 20 June 2002 Matter Number IRC 5632 of 2001 EUPHORIC PTY LIMITED v RYLEDAR PTY LIMITED AND ANOTHER Application for leave to appeal and appeal against a decision of Justice Marks given on 2 August 2001 in matter number IRC 5411 of 2000 Matter Number IRC 5915 of 2001 RYLEDAR PTY LIMITED AND ANOTHER v EUPHORIC PTY LIMITED Applications to extend time to appeal and for leave to appeal and appeal against a decision of Justice Marks given on 2 August 2001 in matter number IRC 5411 of 2000 JUDGMENT OF THE PRESIDENT AND VICE-PRESIDENT [2002] NSWIRComm 136 1 We have had the benefit of considering in draft form the judgment prepared by Schmidt J in respect of these applications for leave to appeal and the related appeals. We agree that the orders proposed by her Honour including as to costs should be made in disposition of these proceedings. Further, in general terms, we agree with the reasoning process whereby her Honour has determined that those orders should be made. 2 We wish, however, to add a few observations of our own in respect of the three areas dealt with by her Honour's judgment. Because of the thorough way in which her Honour has dealt with the factual and other circumstances of the proceedings before the trial judge, it is unnecessary for those matters to be repeated here. 3 It may be noted that, approaching the matter in the manner set out in her Honour's judgment, the matters requiring determination on appeal fall into three areas. The first related to the question of jurisdiction and centres particularly upon the application of the judgment of the Court of Appeal in Production Spray Painting & Panel Beating Pty Ltd v Newnham (1991) 27 NSWLR 644. The second area deals with the appellant's argument that the Court lacked jurisdiction because the relief sought was not concerned with the work which the contract required to be performed, but rather with other matters, such as a dispute whether the respondents had been overcharged for petroleum supplied under the contract and whether the appellant had wrongly refused to permit the respondents to exercise an option to renew the contract. The final issue related to the point raised on appeal by the appellant as to the refusal by Marks J to disqualify himself from hearing the motion notwithstanding that he had conciliated the matter pursuant to s 109 of the Industrial Relations Act 1996. 4 These matters shall be dealt with in reverse order. As to the disqualification point, the circumstances of the present matter, unusual as they are, are such that the course adopted by his Honour as to the matters relied on in the claim for disqualification was entirely correct and there was no basis upon which his Honour should have properly disqualified himself from dealing with the motion. Nevertheless, the conclusion reached by the Full Bench of the Court in relation to this aspect of the proceedings should be seen as one essentially dependent on the particular and rare circumstances of the proceedings. The facility provided to both applicants and respondents in s 106 proceedings by the insertion in the Industrial Relations Act in 1996 of s 109 has proved to be valuable in providing a means of dispute resolution properly alternative to the full litigation of proceedings. This has been particularly so since the introduction in late 1999 of the abbreviated procedural steps provided by r 18A. There is accordingly an important public interest in maintaining the integrity of the processes of conciliation and ensuring, in relevant senses, that the conciliation processes are usually dealt with separately from the contested hearing of proceedings which have remained "unsettled" notwithstanding that they have been dealt with in terms of the conciliation process provided by s 109. 5 In any event, when this matter was dealt with by senior counsel for the appellant, it had refined its submissions on this point in reply in this way: This is not a claim for actual or apprehended bias. There is no suggestion that Marks J. did not bring an impartial mind to his Honour's consideration of the issue of jurisdiction. The proposition is that as a matter of policy a judge who has presided over conciliation ought not to continue to determine any substantive issue in the proceedings, including the question of jurisdiction. 6 We respectfully agree with her Honour's conclusion that there is no basis upon which to grant leave in relation to this aspect of the appellant's application for leave to appeal. This is particularly so in light of the very narrow basis upon which this challenge was ultimately made. 7 Turning to the second issue, we consider that notwithstanding the sophistication of the submissions made by the appellant in respect of it, the appellant's approach is founded on a misconception as to the appropriate approach to be adopted in the construction of provisions such as s 106 of the Industrial Relations Act. Further, acceptance of the appellant's submissions would require the Full Bench to take an approach contrary to longstanding authority in this Court, and also as laid down by Full Bench decisions of this Court's predecessors and by the Court of Appeal and the High Court of Australia. Generally speaking, we would not consider it appropriate in such circumstances to consider the grant of leave to appeal. However, the submissions having been made at the level earlier referred to, this proceeding provides an appropriate vehicle to deal comprehensively, albeit shortly, with this aspect. 8 Dealing lastly with the first of the issues raised by the appellant, the principles to be applied in determining whether a challenge to jurisdiction should be determined as a preliminary matter have been considered in detail in previous decisions of the Court. Full Benches have emphasised that, although it is desirable to determine questions of jurisdiction, where possible, at a preliminary stage, such a determination may be made only where the absence of jurisdiction is clear. In Nagle (T/as W D and J L Nagle & Sons) v Tilburg (1993) 51 IR 8, for example, the Full Court held at 10 - 11: The principle to apply by a court entertaining a challenge to jurisdiction in a preliminary or threshold way was considered by the Supreme Court of New South Wales, Court of Appeal in Majik Markets Pty Limited v. Brake and Service Centre Drummoyne Pty Limited (1991) 28 NSWLR 443; 39 IR 169. Kirby P observed (at 446; 170) : "Such a course if often a sensible one where a party has a substantial threshold argument which, if it succeeds, will knock out the claim and save the costs and inconvenience that attend a protracted hearing of proceedings on the merits. But, as with any threshold relief of this kind, it must be conserved to a clear case where it is plain that the invocation of the jurisdiction impugned is wholly misconceived or, upon analysis, lacks an arguable legal foundation. Necessarily, refusal of relief at the threshold will not finally determine that jurisdiction exists for any order which the Commission might make between the parties. This is because, to secure relief, the claimants must demonstrate that no order could be made which would be within jurisdiction. This burden, which is a heavy one, was accepted by the claimants."

The Full Court then observed, at 11 - 12: We would draw from those authorities the proposition that whilst it is desirable for a case to be determined at an early stage it is only open to do so at the appropriate stage of the proceedings, that is, where the facts, either established by evidence or plainly agreed in terms, enable the Court to determine what the contract or arrangement is or, at least, the parameters of the contract or arrangement. In other words, it seems to us, unless the facts are sufficiently established to enable the Court to be satisfied it has the necessary material to reach a clear and final decision on the question then the appropriate stage has not been reached for such a determination to be made. 9 This approach has been followed and adopted in numerous cases in both the Court Session and the Commission. The analysis of that judgment which was essayed in Virtue v New South Wales Department of Education and Training (1999) 92 IR 428 at 447 - 448 has been cited and followed in a number of subsequent judgments; see, for example, Heath Group Australasia Pty Ltd v Pengly [2001] NSWIRComm 241; Hall v Strathfield Group Ltd [2001] NSWIRComm 266 (subject to appeal); Alsford v Castech Pty Ltd [2001] NSWIRComm 259.

10 The applicable principles were set out in Virtue in this way at 447 - 448: (1) The discretion of a court to determine a case at an early stage, when appropriate, has been repeatedly accepted.

(2) As a general rule it is desirable that an objection to jurisdiction be determined as early as circumstances will conveniently admit so that the tribunal does not embark on a hearing which it lacks authority to conduct. The course of a court entertaining a challenge to jurisdiction in a preliminary or threshold way is often a sensible one where a party has a substantial threshold argument which, if it succeeds, will knock out the claim and save the costs and inconvenience that attend a protracted hearing of proceedings on the merits.

(3) However, a further general proposition is that all issues arising should be dealt with in the substantive proceedings unless the basis for a challenge, either on jurisdictional grounds, or for lack of a reasonable cause of action, be clearly demonstrated.

(4) Threshold relief of the kind sought here must be conserved to a clear case where it is plain that the invocation of the jurisdiction impugned is wholly misconceived or, upon analysis, lacks an arguable legal foundation.

(5) Necessarily, refusal of relief at the threshold will not finally determine that jurisdiction exists for any order which the Court might make between the parties. This is because, to secure relief, the claimants must demonstrate that no order could be made which would be within jurisdiction. The resulting burden is a heavy one.

(6) Accordingly, whilst it is desirable for a case to be determined at an early stage it is only open to do so at the appropriate stage of the proceedings. That is, where the facts, either established by evidence or plainly agreed in terms, enable the Court to determine what the contract or arrangement is or, at least, the parameters of the contract or arrangement. In other words, unless the facts are sufficiently established to enable the Court to be satisfied it has the necessary material to reach a clear and final decision on the question then the appropriate stage has not been reached for such a determination to be made.

(7) Similarly, the jurisdiction to terminate an action summarily for want of a cause of action is to be sparingly employed and ought not to be used save where the lack of the cause of action was clearly demonstrated. 11 In order to succeed in a motion to dismiss on a preliminary basis a summons for want of jurisdiction, a respondent must demonstrate that there is no power in the Commission to grant any relief sought in the application. 12 However, as indicated in the fifth proposition cited above from Virtue "refusal of relief at the threshold [that is on a basis of a preliminary point or motion] will not finally determine that jurisdiction exists for any order which the Court might make between the parties". In other words, it remains open to a respondent unsuccessful on a preliminary motion to maintain its arguments as to lack of jurisdiction for the purposes of the final hearing. 13 Further, as observed in the seventh proposition and notwithstanding the public interest in having struck out at an early stage proceedings for which there is no jurisdiction, "the jurisdiction to terminate an action summarily for want of a cause of action is to be sparingly employed and ought not to be used save where the lack of the cause of action [is] clearly demonstrated". 14 The jurisprudence of this Court represented by the judgment of the then Full Industrial Court in Nagle v Tilburg, and the cases which have followed it, has been important in controlling a practice which had developed in the jurisdiction of some respondents too readily raising jurisdictional arguments at an early stage, at times with at least the appearance of a forensic tactic or an attempt to place logistical difficulties in the way of a less well-resourced applicant. The decision in this matter should not be seen as, or become, a basis for the rigour which has hitherto been exercised in the jurisdiction to be lessened. These observations are made only to emphasise the decision in this matter has depended on the very particular and relatively rare set of circumstances raised by these proceedings. It should not be interpreted or considered by those who practice in the jurisdiction as signifying any lessening of the stringency with which the approach in Nagle v Tilburg will be adhered to. JUDGMENT OF SCHMIDT J

15 This is an appeal from an interlocutory judgment given by Marks J on 2 August 2001. His Honour dismissed a notice of motion filed by the appellant, in which it was sought to have the application brought by the respondents under s106 of the Industrial Relations Act 1996 ('the Act'), dismissed for want of jurisdiction. The question which arose before his Honour was whether or not the contract in respect of which relief was sought, was one 'whereby work is performed'. 16 The summons initiating the proceedings asserted that the contract in issue, a written contract for the sale of Mobil petroleum products entered by the appellant and the respondents in 1998, required the respondent, the purchaser, to perform work. At the hearing below, his Honour raised with the appellant, the seller, his view that the contract in fact required it to perform work, namely in the delivery of petroleum products to various sites identified in the contract. Both the appellant and the respondents were resellers of petroleum. The recitals to the contract noted that the first respondent 'carries on (or proposes to carry on) business as a reseller of petroleum products at the Sites.' 17 The first respondent owned some of the 61 sites to which the petroleum products were delivered by the appellant. The products were there sold under the 'Volume Plus' banner. Some of those sites were owned by third parties, who were licensed to operate under that banner. 18 At the conclusion of the hearing, Marks J announced that he took the view that while the allegation in the summons, that the contract required the respondents to perform work was not made out, the contract did require the appellant to perform work in order to effect delivery of the petroleum sold under the contract to the sites there specified. He directed that the respondents should amend their summons to reflect this view; that the parties would then be given an opportunity to put on further submissions on the question of jurisdiction, after which the decision on jurisdiction would be given. Thereafter, the matter would be listed for conciliation. 19 On 22 March 2001 the matter was conciliated by Marks J, even though the respondents had not filed the foreshadowed amended summons. The conciliation was adjourned and the parties advised his Honour in June that the matter had not settled. Further submissions were filed, which included a submission from the appellant, that Marks J should decline to give judgment on the jurisdictional question it had raised, he having conciliated the matter. His Honour gave judgment on 2 August 2001, refusing to disqualify himself and confirming the views he had expressed at the hearing on 9 March, that the Court had jurisdiction to hear the respondents' claims. 20 Both parties filed appeals against his Honour's decision, but it was agreed that the respondents' appeal would be treated as if it were filed as a notice of contention. The hearing of the appeal proceeded on that basis. 21 On appeal, while not abandoning the disqualification point, the parties concentrated their submissions on the question of jurisdiction. 22 Marks J took the view that the question of jurisdiction which arose depended upon a consideration of the parties' contract. At para [14] to [18], his Honour observed: 14 In order to deal with this matter it is necessary firstly to have regard to the terms of the supply agreement. The first applicant Ryledar Pty Ltd is referred to as the customer and the second applicant as the guaranteeing director. The recitals to the supply agreement refer to the customer carrying on or proposing to carry on business as a reseller of petroleum products at sites which are defined to mean petrol retailing facilities at a number of locations. The schedule refers to sites in the State of New South Wales owned and/or leased and/or operated by the customer as "volume plus" branded sites

15 I was told that there were 63 service stations which were so branded. The recitals further go on to relate that the customer wished to purchase Mobil Petroleum products from the respondent to be resold at those sites and that "Euphoric has agreed to supply and customer has agreed to purchase Mobil Petroleum products on the terms and conditions set out in this agreement."

16 Clause 2.1 provides that Euphoric shall sell to the customer and the customer shall purchase from Euphoric during each month of the term of agreement not less than the minimum quantity and not more than the maximum quantity of the customer's requirements of petrol and automotive distillate for resale at or from the sites together with other Mobil Petroleum products.

17 Clause 5 deals with delivery. Euphoric is obliged to deliver Mobil Petroleum products to the customer at the sites within a reasonable time of receipt of the customer's order. Clause 5.3 provides in part that "Euphoric shall not be obliged to deliver Mobil Petroleum products in a load of less than one truck load (tanker or rigid) to any one site….".

18 The term of the agreement was expressed to be for two years.

23 As to the case advanced below by the respondents, his Honour agreed with the submission of the appellant, that the contract imposed 'no obligation on any person employed by the first applicant or the second applicant to perform work in any industry' (para [21]). 24 His Honour went on to consider whether the contract required anyone else to perform work in an industry, observing at para [22] that: 'The performance of work does not necessarily need to be on the part of a person who is the applicant or associated with the applicant in the proceedings. So long as a person performs work in an industry and that work is performed in circumstances having the necessary nexus with the contract required by s 106(1) the contract will be one coming within s 106. The work may be performed by anyone, whether associated with the applicant, the respondent or, theoretically, anyone else.'

25 At para [27] to [29], his Honour concluded: 27 As I have indicated the obligation of the respondent was not only to sell petroleum products but to effect delivery of those products to some 63 service stations throughout New South Wales.

28 During the course of submissions Mr Coles argued that the delivery of the petroleum products was an incidental part of what he characterized as a contract for the sale of goods where delivery was the seller's obligation. He sought to characterize each separate delivery as giving rise to a discrete individual debt. However, it seems to me that the delivery of the petroleum products throughout the term of the agreement in response to purchase orders made from time to time during the course of the agreement by the first applicant was an obligation which the respondent undertook throughout the course of the supply agreement and pursuant to its terms. In other words, the contractual obligation to make delivery was not created on each and every occasion that a purchase order was made by the first applicant. The obligation to deliver was created by the supply agreement itself and triggered on each occasion that a purchase order was made. Seen in this way there was a continuing obligation during the two year term of the supply agreement on the part of the respondent to make delivery of petroleum products to those 63 sites specified from time to time by the first applicant. As was clear from the recitals to the supply agreement those sites were not necessarily operated by the applicant in its own right

29 I would accordingly characterize the supply agreement as being one whereby the respondent was, by its terms, required to effect delivery of petroleum products to 63 sites situated within New South Wales by taking steps to have those petroleum products physically transported to those sites. The act of physical transportation of the goods arguably involves the performance of work in an industry. Accordingly I would conclude this point against the respondent.

26 The clause of the contract to which his Honour was giving attention, clause 5 Delivery, provided: '5. DELIVERY 5.1 Time of delivery . Euphoric shall deliver Mobil Petroleum Products to Customer within a reasonable time of receipt of Customer's order but shall nevertheless use its best endeavours to ensure that: (a) if a Customer's order is received by Euphoric prior to 12 noon on any Business Day, then delivery shall be effected within 24 hours of the receipt of Customer's order; and

(b) if Customer's order is received by Euphoric after 12 noon on any Business Day, then delivery shall be effected within 48 hours of the receipt of Customer's order by Euphoric. 5.2 Place . Euphoric shall deliver Mobil Petroleum Products to Customer at the Sites which shall be received and accepted by Customer upon delivery provided that: (a) the Mobil Petroleum Products delivered are in accordance with an order placed by Customer; and

(b) the Mobil Petroleum Products delivered are of merchantable quality and suitable for sale by Customer as goods of their type. 5.3 Minimum Order . Euphoric shall not be obliged to deliver Mobil Petroleum Products in a load of less than one truck load (tanker or rigid) to any one Site. Euphoric may (but shall not be obliged) to deliver a truck load (tanker or rigid) to Customer, the contents of which are delivered to more than one Site where Euphoric reasonably considers that its delivery costs are not thereby increased: 5.4 Title and Risk . Title and Risk in Moil Petroleum Products purchased by Customer under this Agreement shall pass to Customer upon delivery at the Sites. 5.5 Warranty as to merchantability . Euphoric warrants that any Mobil Petroleum Products delivered to Customer pursuant to the terms of this Agreement shall be of merchantable quality and suitable for resale by Customer as goods of their type. 5.6 Inability to supply ordered quantity . Where: (a) Customer wishes to purchase Mobil Petroleum Products pursuant to clause 2.1; and

(b) Euphoric is unable to supply the required quantity because of any of the circumstances described in clauses 6.1 or 6.3; and

(c) Customer has given Euphoric a Notice containing details of the proposed third party supplier,

Customer may purchase from such third party supplier a quantity of petroleum products equivalent to the quantity which Euphoric is unable to supply, and may continue to do so until Euphoric is able to resume full supply of those petroleum products to Customer. 5.7 Objection to condition of Equipment . If when delivering Mobil Petroleum Products at the sites, Euphoric forms the opinion that any equipment at the Sites used for dispensing or storing Mobil Petroleum Products is not, through lack of reparation or maintenance (or otherwise), in a fit and proper conditions to adequately and safely store and dispense Mobil Petroleum Products, then Euphoric may, in its absolute discretion, withhold delivery until Customer has restored the Equipment to the satisfaction of Euphoric. A refusal by Euphoric to deliver Mobil Petroleum Products to Customer pursuant to this clause shall not be a breach by Euphoric of its obligations under clause 2.1.

27 In his judgment, his Honour noted that the summons had not been amended to assert that work was required by the appellant, as he viewed the contract, but nevertheless determined to deal with the strike out application, '…whatever assertion might or might not be contained within the summons.' para [31] The cases on appeal 28 On jurisdiction, the appellant pursued three points. Firstly, that Marks J had erred in the conclusion he had reached, having wrongly applied the principles enunciated by the Court of Appeal in Production Spray Painting & Panel Beating Pty Ltd & Others v Newham & Others (1991) 27 NSWLR 644. Secondly, that even if his Honour had not so erred, the Court's jurisdiction was not enlivened, given the relief sought in the summons. Thirdly, that his Honour had erred in declining to disqualify himself from deciding the motion, having conciliated the matter. 29 The position of the respondents was that his Honour had not so erred. Further that the contract both expressly and implicitly required the performance of work by the respondents. Particular reliance was placed upon the ongoing relationship established between the parties by the contract and the provisions of clause 7, which provided: '7. CUSTOMER'S RESPONSIBILITIES 7.1 Customer to comply . Customer shall comply with any reasonable and lawful instructions from Euphoric. (a) in accordance with any Right to give instructions as expressed or implied by this Agreement; (b) as to any procedure to be followed to ensure: (i) the safety of persons or property;

(ii) the preservation of the quality of Mobil Petroleum Products; and

(iii) the protection of the Environment. 7.2 Acknowledgement . Customer acknowledges that the storage and dispensing of Mobil Petroleum Products is potentially, at least, a hazard to life, property and the Environment and may (even in the absence of neglect or default) cause death, personal injury, property damage, economic loss and Environmental Problems. Customer agrees that it will take all steps at its cost and do all things reasonably necessary and adopt all prudent and lawful procedures to avoid the occurrence of events that may cause death, personal injury, property damage, economic loss or the occurrence of any Environmental problems and will ensure that its officers, employees, agents invitees and others acting through it comply with, without limitation: (a) the requirements of any Government Authority in relation to the Sites and/or any equipment used for the storage and dispensing of Mobil Petroleum Products:

(f) the terms and conditions of any policy of insurance effected in respect of the Sites or any equipment on it;

(g) all reasonable and lawful precautions against fire and pollution of the Environment;

(h) all prudent and lawful fire prevention safety and environmental protection procedures;

(i) such procedures and practices as are consistent with good industry practice,

and shall ensure that it (and its officers, employees, agents, invitees and others acting through it) do not do or omit to do any act, matter or thing which would result in customer being in breach of any of paragraphs (a) to (i) inclusive above. 30 It was argued that the appellant had a continuing interest in the conduct of the respondents' business; that the respondents were obliged to comply with the appellant's reasonable and lawful instructions about a range of safety and environmental factors, and that the respondents were obliged to control their employees to ensure that they were not in breach of their obligations under clause 7. It was further argued that other provisions regulated the continuing relationship which could only be discharged by the performance of work. As to the orders sought, it was submitted that they were within the Court's jurisdiction. Consideration 31 In Stevenson v Barham (1977) 136 CLR 190 it was observed at p201 that: 'It follows, then, that if the contract is one which leads directly to a person working in any industry it has the requisite industrial character - it is a contract "whereby a person performs work in any industry". This is the relevant jurisdictional fact which needs to be established.'

32 Here the appellant sought to characterise the contract as one for the sale of goods, to be supplied from time to time over the two-year life of the agreement, and not one whereby work was performed. On that approach, it was argued that the contract demonstrated that the relevant jurisdictional fact was not present. 33 How the relevant jurisdictional fact might be ascertained was the subject of consideration in Production Spray Painting, where the members of the Court of Appeal took somewhat different approaches, but all analysed the contract there in question in order to determine whether the relevant jurisdictional fact was present. There, it was a contract for the sale of a business which was concerned in the application brought under the predecessor to s106, s88F of the former Industrial Arbitration Act 1940. Various of the express terms of that contract required the performance of work. They were analysed. Priestley and Handley JJ explained the purpose of that exercise: 'The impugned contract, etc, therefore must directly, that is under or pursuant to its terms, provide for the performance of work in an industry. Accordingly the contrast drawn by this Court in Ex parte V G Haulage Services and approved by the High Court in Stevenson v Barham is between a contract which leads directly to the performance of work in an industry on the one hand, and on the other a contract which does so only indirectly or in a remote or consequential manner. (at p657).'

34 Mahoney J took a slightly different approach. He considered whether the work was 'merely an accidental consequence of the transaction' rather than 'its purpose to bring about' (at p649) and whether the performance of work was sought to be achieved by the contract, or whether that was of no interest to the contracting parties. (at p652). Mahoney J accepted that the contract there in question imposed a legal obligation on the vendor to perform specified work. Nevertheless, he took the view that, (at p651): '… the argument I think suggested, the contract placed on the vendor a legal obligation to perform work, that is, to "manage the same as a going concern in a proper manner until completion" (cl 19). And, perhaps, the obligation of the vendor to "attend at the business" "to give tuition to the purchasers" (cl 20 and cl 21); might be seen as obliging it to perform relevant work. The argument suggested that the purpose of the transaction was, or included, what is obliged one or both of the parties to do. This, I think, fails to distinguish between the different meanings of "purpose". There is, in principle, a distinction between the purpose of a transaction and that which the parties have stipulated shall be done in order that that purpose be achieved. The purpose of the provision that, for example, the vendor should do the work of managing the business was that that work should be done. But the purpose of it being done was in order that the purpose of the transaction be achieved, namely, that the purchasers have the benefit of, inter alia, the goodwill which they had purchased. The purposes of these obligations of the vendor were not purposes in themselves but merely that the purpose of the transaction, the transfer of the assets to the purchasers, would be achieved. Similarly the provision that the purchasers "shall be at liberty so far as the vendors are concerned to re-employ" former employees (cl 19); is not a purpose the agreement but an incidental provision directed to the achievement of the purposes of the agreement itself.'

35 This approach has been applied in many subsequent cases. The contract here in question was one for the sale of Mobil petroleum products. It is beyond doubt, I think, that every contract for the sale of goods will require the performance of some work, in order that the sale will be achieved, in a practical sense, whether or not the contract expressly deals with that matter. For example, work is involved either in placing an order, receiving and processing the order, preparing the goods for delivery, or in delivering them. The necessity for delivery of goods is a matter dealt with in ss31 and 32 of the Sale of Goods Act 1923, which provide: 31. Payment and delivery are concurrent conditions

Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions, that is to say, the seller must be ready and willing to give possession of the goods to the buyer in exchange for the price, and the buyer must be ready and willing to pay the price in exchange for possession of the goods.

(1) Whether it is for the buyer to take possession of the goods, or for the seller to send them to the buyer, is a question depending in each case on the contract express or implied between the parties. Apart from any such contract express or implied, the place of delivery is the seller's place of business if the seller has one, and if not, the seller's residence: Provided that if the contract be for the sale of specific goods which to the knowledge of the parties when the contract is made are in some other place, then that place is the place of delivery.

(2) Where under the contract of sale the seller is bound to send the goods to the buyer, but no time for sending them is fixed, the seller is bound to send them within a reasonable time.

(3) Where the goods at the time of sale are in the possession of a third person, there is no delivery by seller to buyer unless and until the third person acknowledges to the buyer that the third person holds the goods on the buyer's behalf: Provided that nothing in this section shall affect the operation of the issue or transfer of any document of title to goods.

(4) Demand or tender of delivery may be treated as ineffectual unless made at a reasonable hour. What is a reasonable hour is a question of fact.

(5) Unless otherwise agreed, the expenses of and incidental to putting the goods into a deliverable state must be borne by the seller. 36 In this case, delivery was expressly dealt with in clause 5 of the contract. It required that the seller, the appellant, deliver the goods purchased to the sites nominated in the contract. The contract did not deal at all with how the work involved in such delivery was to be performed by or for the appellant. Applying the approach outlined by Mahoney J in Production Spray Painting to this obligation, it must be concluded that the obligation to deliver the petroleum products purchased, was not a purpose of the contract in itself, but rather what the parties had stipulated be done in order that that the sale of the petroleum products be achieved. Delivery of those products to the sites was required so that "the purpose of the transaction, the transfer of the assets to the purchasers, would be achieved"(at p651). This was in accordance with the provision made in s32 of the Sale of Goods Act 1923, earlier quoted, for express agreements about such delivery obligations. 37 Approaching the question from the analysis adopted by Handley and Priestley JJ, it must be concluded that while the delivery obligation imposed upon the appellant by clause 5 of the contract plainly enough led to the performance of work, in order that delivery could be physically achieved, the performance of the work necessarily involved, was not the purpose of the obligation. The contract was silent as to how the work involved in effecting delivery would be performed, or by whom. Those were matters entirely for the appellant. Indeed, the only limitation imposed by the contract in that respect was imposed in favour of the appellant, which was entitled to refuse to deliver less than one truck load of petroleum to any site. Even this right was concerned with the minimum amount of product to be delivered under the contract, reflective of the purpose to which the obligation to deliver was directed - namely the sale and purchase of the petroleum. 38 In my view, that a contract for the sale of a product imposes an obligation upon the seller to deliver the product to the purchaser, at a particular place or places, is of itself not a sufficient basis to ground jurisdiction under s106, irrespective of how much or little work is required, as a practical matter, in order to effect such delivery. Once the contract seeks to deal with the work required to effect delivery, a different conclusion might result. This, however, was not such a case. 39 The purpose of this contract was to provide for the sale of petroleum by the appellant to the respondents, at regular intervals over the life of the agreement. In order that this purpose would be achieved, the contract stipulated that delivery of the petroleum to the respondents was to be effected at the various sites where the products were to be retailed, by the respondents and third parties. That obligation ensured that the purpose of the contract was achieved, namely that the petroleum which the respondents had purchased be delivered to it, in accordance with its express instructions as to the place of delivery. The transfer of the goods sold was thereby achieved, as contemplated by the Sale of Goods Act 1923. 40 The transportation of the petroleum to the specified sites in order to affect the required delivery, was a consequential result of the sale contract. The respondents had no interest in how this was done, on what terms, or by whom. They could only complain if they did not receive delivery of the petroleum purchased, at the sites specified. It follows that this contract was simply not one which enlivened the Court's jurisdiction as the result of the delivery obligation. 41 Were a contrary view to be taken, it is difficult to see how the section could not be regarded as generally granting the Court jurisdiction in respect of all contracts for the sale of goods. An obligation to deliver goods sold attaches to every such contract, whether expressly dealt with or not. Meeting that obligation will always require the performance of work of one kind or another. What that work involves will depend upon the nature and amount of goods purchased, amongst other things. 42 While there may well be contracts for the sale of goods which make provision for the performance of work, so as to enliven the Court's jurisdiction under the section, a bare obligation to deliver to a particular place or places, without more, cannot do so. In my view that obligation is directed to ensuring that the purpose of the contract - the sale of the goods in question - is effected. The purpose of the obligation to deliver is not the performance of work, although that will be a result of the obligation being met. 43 I turn then to the respondents' contentions. The view that Marks J was correct in concluding that the contract did not impose any obligations upon the respondents for the performance of work, cannot be avoided. Obviously enough, work was required to be performed by the respondents as a result of the contract. For example, the respondents' orders had to be placed with the appellant, the appellant's invoices considered and payment of them later made. Such consequences are, however, not sufficient to enliven the Court's jurisdiction under the section. 44 Clause 7 of the contract, relied upon by the respondents as evidencing the contractual requirements that involved the performance of work, in my view cannot be so characterised and even if it could, cannot be viewed, as Mahoney J put it in Production Spray Painting as a 'purpose of' the transaction, rather than 'that which the parties have stipulated shall be done in order that that purpose be achieved.' 45 The right granted the appellant in clause 7.1, to give 'reasonable and lawful instructions' was particularly relied upon by the respondents. That was, however, not a right concerned with the performance of any work, but rather, with instructions as to 'procedures to be followed' to ensure the safety of persons or property; the preservation of the quality of the petroleum products sold and the protection of the environment. Such procedures, when followed, might of course require the performance of work. Nevertheless, the right to give instructions about such procedures imposed no requirement for the performance of any work, nor could that right itself be viewed as one of the purposes of the parties' contract. 46 Similar conclusions flow in relation to clause 7.2, which was concerned with the hazards associated with petroleum products and the steps which the respondents were obliged to take in relation to the consequences of such hazards. These were undoubtedly important obligations under the contract, having in mind the statutory obligations resting upon both the appellant and the respondents in relation to safety risks and environmental matters. This was a contract with a life of 2 years, during which such products were to be supplied by the appellant. That such provision might be made in such an ongoing sale contract is not surprising, but it does not evidence the necessary jurisdictional fact - the performance of any work under the contract. 47 Analogies were sought to be drawn with other decided cases, for example Booth v Kritikos Developments Pty Limited (1995) 59 IR 228 and Kostakis & Anor v New World Oil & Developments (1997) NSWIRComm 84 (25 July 1997). Those comparisons did not avail the respondents' arguments here. Those contracts imposed express and ongoing obligations for the performance of work. In Kritikos, for example, an obligation to renovate a hotel and to operate the business of a hotel, during the period of a lease and in Kostakis, to operate a particular type of business at the shop in question, during the period of the lease. No such obligations were imposed in this contract. 48 I thus agree with the conclusion reached by Marks J as to the allegation made by the respondents in the initiating summons, that the contract did not require the performance of work by the respondents. There were no such contractual obligations and no jurisdictional fact flowed from the performance of any work, by or for the respondents, in connection with this contract. 49 These conclusions are sufficient to dispose of the appeal. I also deal, however, with the argument that the Court's jurisdiction was not enlivened, because the relief sought was not concerned with the work which the contract required to be performed, but rather with other matters, such as a dispute as to whether the respondents had been overcharged for petroleum supplied under the contract and whether the appellant had wrongly refused to permit the respondents to exercise an option to renew the contract. 50 This argument was not dealt with in Marks J's judgment, although touched upon fleetingly at the original hearing. I accept that given the peculiar way in which consideration of the appellant's motion went forward below, particularly the way in which the jurisdictional questions came to be argued, after the views expressed by his Honour, that the appellant could not fairly be precluded from relying on this argument on appeal. 51 It was conceded that the argument raised questions of construction and that it required that the definition of 'unfair conduct,' provided in s105 of the Act, be read more narrowly than the words there used suggested on their face. This particularly followed when regard was had to the context in which the defined phrase is used in s106. Support for this approach to statutory construction was sought in authorities such as Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 335 at 381 [69], where the High Court emphasised the need to approach the question of construction by examining the context of the provision being construed. That case was concerned with the meaning of apparently conflicting provisions of a statute. The resulting need to reconcile such provisions, having regard to their hierarchy, was considered. 52 Likewise in CIC Insurance Ltd v Bankstown Football Club Ltd (1995) 187 CLR 384 at 408, Brennan CJ, Dawson, Toohey and Gummow JJ observed: 'It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure ( Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg Aktiengesellschaft [1975] AC 591 at 614, 629, 638; Wacando v The Commonwealth (1981) 148 CLR 1 at 25-26; Pepper v Hart [1993] AC 593 at 630). Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "content" in its widest sense to include such things as the existing state of law and the mischief which, by legitimate means such as those just mentioned, one may discern the statue was intended to remedy ( Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461 cited in K&S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312, 315). Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363 at 388, if the apparently plain words of a provision are read in light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent. ( Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320-321.)'

53 Sections 105 and 106 provide: 105. Definitions

"contract" means any contract or arrangement, or any related condition or collateral arrangement, but does not include an industrial instrument. "unfair contract" means a contract: (a) that is unfair, harsh or unconscionable, or (b) that is against the public interest, or (c) that provides a total remuneration that is less than a person performing the work would receive as an employee performing the work, or (d) that is designed to, or does, avoid the provisions of an industrial instrument. 106. Power of the Commission to declare contracts void or varied

(1) The Commission may make an order declaring wholly or partly void, or varying, any contract whereby a person performs work in any industry if the Commission finds that the contract is an unfair contract.

(2) The Commission may find that it was an unfair contract at the time it was entered into or that it subsequently became an unfair contract because of any conduct of the parties, any variation of the contract or any other reason.

(3 A contract may be declared wholly or partly void, or varied, either from the commencement of the contract or from some other time.

(4) In considering whether a contract is unfair because it is against the public interest, the matters to which the Commission is to have regard must include the effect that the contract, or a series of such contracts, has had, or may have, on any system of apprenticeship and other methods of providing a sufficient and trained labour force.

(5) In making an order under this section, the Commission may make such order as to the payment of money in connection with any contract declared wholly or partly void, or varied, as the Commission considers just in the circumstances of the case.

54 I take the view that the confined construction of the power to make orders affecting unfair contracts urged by the appellant is not available and that the authorities relied upon do not assist in arriving at such a construction. The reading of the sections on the basis urged would not only result in a significant narrowing of the beneficial provision made in the section, it in my view fails to pay proper regard, either to the clear words of the definition of unfair contract in s105, or to the purpose of s106 itself. 55 The ordinary approach to statutory construction requires that remedial or beneficial legislation such as s106 will 'be construed so as to give the fullest relief which the fair meaning of the language will allow.' (See Bull v Attorney General (NSW) (1913) 17 CLR 370 at 384 per Isaacs J and the discussion in Statutory Interpretation in Australia 5th Edition Pearce and Geddes Chapter 9, beginning at p227.) On the appellant's approach, the Court's powers to remedy an unfair contract would be restricted to only those aspects of a contract under which work was performed, which were themselves concerned with the performance of work. Such a limitation is not apparent on the face of the section and could only be found if a limited characterisation of the purpose of the section were adopted. The result would be that no relief would be available in respect of other aspects of such a contract, even if they were found to be harsh, unfair or unconscionable, or contrary to the public interest. 56 Such a construction would also involve a significant departure from the way in which the predecessors to the section were construed. The construction of s 88F was dealt with in Stevenson v Barham (1977) 136 CLR 190. There the argument being considered was that s 88F was limited to contracts subversive of the scheme of industrial regulation established by the 1940 Act. It was observed by Mason J (as he then was) and Jacobs J, at 198-9: 'The appellant says that these considerations require the conclusion that a contract or arrangement to fall within s. 88F (1) must be subversive of the scheme of industrial regulation achieved by or under the Act. The first obstacle in the appellant's way is that the power conferred upon the Commission by s. 88F is in the widest terms. It enables the Commission to make an order or award varying a contract or arrangement or a condition or collateral arrangement relating thereto, on the grounds stated. The grounds so stated are wide-ranging and embrace many considerations. They are not all limited to considerations which are themselves industrial in character - they include the grounds that a contract or arrangement is (a) unfair, (b) harsh or unconscionable, (c) contrary to the public interest. The fact that grounds (a), (b) and (c) are included in sub-s. (1) in addition to grounds (d) and (e), indicates that the Commission's powers are not confined in point of jurisdiction to contracts or arrangements designed to avoid the industrial awards or agreements or the rates of remuneration fixed for the performance of work by employees, the matters stated in grounds (d) and (e). According to the language in which the first three grounds are expressed the Court can grant relief if a contract or arrangement is unfair or harsh or unconscionable or is against the public interest, whether it tends to subvert industrial awards and industrial agreements or not.'

57 At p200 their Honours discussed the decision of Jacobs JA In Ex parte VG Haulage Services Pty Ltd; Re Industrial Commission (NSW) [1972] AR (NSW) 298 at 307, describing the 'industrial colour or flavour' there discussed as being present, 'so long as the transaction leads directly to work in any industry.' At p201, their Honours dealt with the High Court's decision in Brown v Rezitis (1970) 127 CLR 157, concluding that there was nothing in that case which lent support to the jurisdictional limitation being considered. It was said: 'Barwick C.J. pointed out that of the five grounds, only two refer to the avoidance of an award or the underpayment of a worker in industry (1970) 127 CLR, at p 164 . Menzies J. said specifically, "Section 88F confers upon the Commission the power to make orders which cannot be comprehended within the description of orders relating to or appearing to relate to industrial matters" (1970) 127 CLR, at p 172. It follows, then, that if the contract is one which leads directly to a person working in any industry it has the requisite industrial character - it is a contract "whereby a person performs work in any industry". This is the relevant jurisdictional fact which needs to be established.'

58 Here a similar limitation on the Court's powers under s106 was asserted, so that the Court was restricted to making orders in connection with only some aspects of a contract under which work is performed, namely those concerned with the performance of that work. The limitation is in my view untenable and were it to be entertained, would lead to error. 59 At pp201-2, their Honours went on to observe: 'The plaintiff must, as a condition of making out a case for relief, show the existence of one of the five grounds set out in the sub-section. When such a ground has been established it is for the Commission in the exercise of its discretion to determine whether relief will be granted. Thus in exercising its discretion the Commission may decide, as it appears to have done in a number of cases, that relief will only be granted if the agreement appears to be one which is subversive of industrial regulation. By so deciding the Commission might or might not be acting upon a correct legal principle governing the exercise of the discretion given to it. Since s. 88F (1) includes pars (a), (b) and (c) as well as (d) and (e) it may well be that the Commission would not be acting on a correct principle if it were so to decide. But it must be recognized that the principle so adopted is one which relates, not to jurisdiction, but to the exercise of the discretion conferred by the sub-section. The various facts and circumstances relied upon by Kelleher J. as reasons for holding that he had no jurisdiction may lead him to conclude that no order ought to be made but that is a matter for the Industrial Commission.'

60 The current drafting has excised from s106(1) the definition of unfair contract, which now appears in s105. This drafting device does not evince any obvious intention to narrow the relief provided, by way of comparison to the provision made in the sections' predecessors. It is an approach to drafting which does not assist in the view being reached, that in addition to establishing one of the grounds provided in the definition of unfair contract, an applicant must also establish that the provisions of the contract complained to be harsh etc, were themselves concerned with the work performed under the contract. By way of comparison, s88F provided: 88F. Power of commission to declare certain contracts void.

(1) The commission may make an order or award declaring void in whole or in part or varying in whole or in part and either ab initio or from some other time any contract or arrangement or any condition or collateral arrangement relating thereto whereby a person performs work in any industry on the grounds that the contract or arrangement or any condition or collateral arrangement relating thereto - (a) is unfair, or (b) is harsh or unconscionable, or (c) is against the public interest. Without limiting the generality of the words "public interest" regard shall be had in considering the question of public interest to the effect such a contract or a series of such contracts has had or may have on any system of apprenticeship and other methods of providing a sufficient and trained labour force, or (d) provides or has provided a total remuneration less than a person performing the work would have received as an employee performing such work, or (e) was designed to or does avoid the provisions of an award, industrial agreement, agreement registered under Part VIIIA or contract determination.

(2) The commission, in making an order or award pursuant to subsection one of this section, may make such order as to the payment of money in connection with any contract, arrangement, condition or collateral arrangement declared void, in whole or in part, or varied in whole or in part, as may appear to the commission to be just in the circumstances of the case. (2A) The commission, when making an order or award pursuant to subsection (1) or at any time thereafter, may make such further order as may appear to the commission to be appropriate for the purpose of prohibiting (either absolutely or otherwise than in accordance with specified conditions) - (a) any party to the contract arrangement or collateral arrangement; or (b) any other person who is (in any way considered relevant by the commission) associated with any such party, from - (c) entering into any specified kind of contract, arrangement or collateral arrangement whereby a person performs work in an industry; or (d) doing any act (whether by way of newspaper advertising or otherwise) which may reasonably be construed as being intended to induce other persons to enter into an such contract, arrangement or collateral arrangement.

(2B) An order under subsection (2A) shall identify the person or persons upon whom it is binding and shall take effect in respect to any such person - (a) upon service on that person of a copy of the order; or (b) upon publication of the order in a daily newspaper circulating generally throughout New South Wales, whichever comes first.

(2C) An order or award may be made pursuant to subsection(1), and an order may be made pursuant to subsection (2A), on the application of - (a) in the case of an order or award under subsection (1) - any party to the contract, arrangement or collateral arrangement; (b) in the case of an order under subjection (2A) - (i) any party to the contract, arrangement or collateral arrangement; or (ii) any person who, but for the making of an order or award pursuant to subsection (1), would be a party to the contract, arrangement or collateral arrangement; (c) the secretary of an industrial union of employers whose member employs persons working in the industry to which the contract, arrangement or collateral arrangement relates; (d) the secretary of an industrial union of employees whose members employed in the industry to which the contract, arrangement or collateral arrangement relates; or (e) the Minister, and not otherwise.

(3) Without affecting the operation of any other provision of this Act - (a) the commission may make such order as to the payment of costs, in any proceedings under this section, as may appear to it to be just; and (b) the commission in court session may make such order as to the payment of costs, in any proceedings before it which arise by way of appeal from proceedings under this section, as may appear to it to be just, and may assess the amount of the costs. (4) An application under this section in respect of a contract of carriage to which Part VIIIA applies may be made by a party to the contract or by an association of contract carriers of which a party to the contract is a member. (5) This section does not apply to an enterprise agreement.

61 Had the legislature intended to introduce such a new limitation on the relief available under the section, it would be expected that clear words to indicate its nature and extent would have been used, particularly having in mind the judicial consideration which the predecessor sections have received. That consideration includes what Barwick CJ said in Stevenson v Barham at p192: 'Notwithstanding the wide language of s. 88F, I have found difficulty in becoming convinced that it was within the contemplation of the legislature that agreements of business ventures, of which the present may be a specimen, freely entered into by parties in equal bargaining positions, should be so far placed within the discretion of the Industrial Commission as to be liable to be declared void. However, I have come to the conclusion that the language of s. 88F of the Act is intractable and must be given effect according to its width and generality. The legislature has apparently left it to the good sense of the Industrial Commission not to use its extensive discretion to interfere with bargains freely made by a person who was under no constraint or inequality, or whose labour was not being oppressively exploited.'

62 The power granted the Court by s106 to declare contracts void, ab initio or from some later time, also militates against the conclusion that the legislature intended a departure from the 'intractable' language earlier used, in s88F, which gave rise to wide and general powers of relief in relation to contracts under which work is performed. 63 That difficulty is not overcome by recourse to other provisions of the Act, to provide a 'contextual' basis for the limitation asserted. The Act, after all, is concerned not only with the performance of work but with other matters too. For example, the promotion of efficiency and productivity in the economy of the State; the prevention and elimination of discrimination in the workplace; the encouragement and facilitation of co-operative workplace reform and equitable, innovative and productive workplace relations (see s3). 64 The construction urged by the appellant would also lead to difficult consequences. The exercise of the power to declare a contract void, given its consequence for those provisions of the contract in respect of which it was here argued that the Court had no jurisdiction, would be rather odd. On the one hand, while the Court would have the power to deal with the entire contract, if the view were taken that it was unfair, excision or some other variation of a particular provision would be beyond power, if the provision in question was not itself concerned with the performance of work. The words of the section do not readily permit such a curious result. 65 Another practical difficulty flowing from the construction urged is the problems of characterising particular terms of a contract sought to be attacked which would inevitably arise. It would become necessary to determine whether particular provisions were concerned with the performance of work under the contract, or with other aspects of the parties' arrangements. This is an exercise which would obviously not be without difficulty. 66 The definition in s105 also refers to 'a related condition or collateral arrangement'. The meaning of those words has received consideration by the Court. In Bell & Anor v Macquarie Bank Ltd & Anor (No 4) (1999) 93 IR 191, it was said by the Full Court at p206: 'We interpolate here our view that, notwithstanding the different textual structure of s106 of the Act (as read by reference to the definitions in s 105) when compared with that of the former s 88F and s 275, we do not consider that a different construction should be given to the phrase "or any related condition or collateral arrangement". In particular, we do not consider that that phrase is qualified by the words in s 106(1) "whereby a person performs work in any industry". To hold otherwise would be to render the phrase "any related … collateral arrangement" as surplusage, since there would be no area of operation for that phrase if it was considered as subject to the limitation referred to. So construed, the phrase would add nothing to the primary phrase "any contract or arrangement". In the light of the evident purpose of the purpose of the provision, particularly when seen in the light of its history, it is most unlikely that Parliament would have intended this result. The judgment of Hungerford J in Bartolacci was affirmed on appeal: Bartolacci v Permanent Custodians Ltd (unreported, Cahill Deputy CJ, Glynn and Peterson JJ, 9 October 1992). See also BNY Australia Ltd v James (1992) 40 IR 1; Myer Stores Ltd, t/as Grace Bros v Stowart (1994) 55 IR 21; Carter v Australian Rugby League (1997) 78 IR 368 at 391; Klein v Adler (unreported, Schmidt J, 21 November 1996) at 28-35; Douglas v Kone Elevators (Australia) Pty Ltd (unreported, Schmidt J, 14 March 1997) at 22; Yildiz v Cash Converters Pty Ltd (unreported, Peterson J, 8 September 1999) at 10-13.' 67 It follows that the jurisdictional limitation here asserted could only attach to contracts or arrangements under which work was performed. The limitation would not apply to any related condition or collateral arrangement about which complaint is available to be made under the section, they not being limited by the phrase 'under which work was performed.' As the High Court observed in CIC Insurance, inconvenience and improbability of result also assists in my here concluding that the narrow construction asserted is not properly available. 68 Jurisdictional limits on the power granted by ss105 and 106 and its predecessors, of various kinds, have often been pursued in the past. In Hoffman v Industrial Commission of New South Wales (1990) 33 IR 139 Handley JA, (with whom Samuels and Priestly JJA agreed), said as to the construction point there raised, at p142: 'In my view, the unexpressed limitation which Mr Campbell submits should be read into the section, cannot be derived from the language, context or evident purpose of the section and in the end is based on nothing more than an invitation to this Court to read the section as narrowly as possible. Decisions of the High Court, and the Privy Council establish that the section should not be read in this way.'

69 I can come to no different conclusion in this case. That aspect of the appeal must be dismissed. 70 I finally make some passing observations upon the complaints advanced as to his Honour's refusal to disqualify himself from giving judgment on jurisdiction. It would plainly have been preferable if the parties had adhered to the programme his Honour outlined at the original hearing, after he had expressed the view he had reached, that the Court's jurisdiction was enlivened by the application. That would have involved an amended summons being filed by the respondents and judgment on jurisdiction being given, before the matter was conciliated. 71 This course was not adhered to, but his Honour's views on jurisdiction were made well known to the parties at the hearing of the motion prior to the conciliation. They all thereafter participated in the conciliation, without objection or making known, on the appellant's part, that this would later give rise to an objection to his Honour giving the interlocutory judgment, if that became necessary. In those circumstances, I take the view that his Honour was entirely correct in declining to disqualify himself from giving that judgment. Leave to appeal in relation to this complaint was plainly not warranted. Orders 72 For all of these reasons, I would order that leave to appeal be granted except in relation to the complaint as to his Honour's refusal to disqualify himself; the appeal as to jurisdiction be upheld, but as to construction of the Act, be dismissed; his Honour's judgment of 2 August 2001 be set aside and the application be dismissed. 73 The usual order as to costs would be that the respondents bear the applicants' costs at first instance and on appeal, as agreed or assessed. If the parties are unable to agree on the question of costs, the parties should have liberty to approach within 21 days of the date of this judgment.

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