1 This is an application brought by Gregory Mervyn Robberds and Eileen Robberds ("the applicants") for relief under s 106 of the Industrial Relations Act 1996 ("the Act") against Turner Franchising & Allied Services Pty Limited ("first respondent"), Clive Turner ("second respondent"), Chooka's International Pty Limited ("third respondent") and Kevin Payne ("fourth respondent").
2 The applicants are husband and wife who together on 16 December 2002 executed a franchise agreement with the first respondent to establish and operate a retail outlet, "Chooka's Char-Grill", which was located at shop T330 Erina Fair Shopping Centre. Mr Turner is the sole director and secretary of the first respondent. The first respondent is the nominated franchisor in the franchise agreement. It also acted as the territory franchisor for New South Wales, operating under the name "Chooka's Char-Grill NSW/ACT" with its business described as franchised retail char-grilled chicken stores in a document headed "disclosure document". The third respondent was described in the disclosure document as the master franchisor. According to that document the third respondent developed and held the rights to the concept of Chooka's Char-Grill Chicken and all associated systems and intellectual property throughout Australia. It granted territory licences to territory franchisees who in turn assumed responsibility for developing the "Chooka's system". This was achieved by the franchising of stores to suitable franchisees, such as Mr and Mrs Robberds, and by the opening of company operated stores. Mr Payne, is the managing director of the third respondent. He is described in the disclosure document as the joint owner of a successful pizza delivery chain, "Dial A Dino's" which operated some one hundred stores in Australia as well as stores in New Zealand, England and Japan. According to the disclosure document, Mr Payne developed the "Chooka's concept" from a number of individually operated stores, "to a well branded, systemised and controlled Australian wide franchise with its own unique and individual menu".
The contract or arrangement
3 Mr and Mrs Robberds put their case at the hearing on two bases. First, on the basis that the franchise agreement entered into on 16 December 2002 constituted an agreement whereby work is performed in any industry in accordance with s 106(1) of the Act. Although the second, third and fourth respondents were not parties to this agreement, the applicants place reliance on those parties as having a sufficient association with or connection to the agreement such that they fall within the terms of s 106(5) of the Act.
4 The second basis upon which the applicants put their case was that all four respondents were parties to a wider agreement which consisted of the franchise agreement of 16 December 2002, a territory licensee agreement between the first and third respondents executed on 17 May 2002, various documents provided to the applicants including the disclosure document, and, pre-contractual representations allegedly made to the applicants with the intention of inducing the applicants to enter into the franchise agreement. These representations may be described for the purposes of this judgment as, "the turnover" representation, "the fit out " representation and, the "trading hours" representation. A fourth representation upon which reliance is placed is that the respondents would provide the applicants with ongoing advice and assistance. Later, in submissions a further representation was relied upon by the applicants to which I have referred in this judgment as the "representation as to location".
5 It should be noted for completeness that the applicants' case which is put on two bases is relied on both in the alternative and cumulatively.
Unfairness
6 The requisite unfairness is said to manifest in the pre-contractual representations made to the applicants which they assert were false and misleading, and/or not borne out in fact, with the result that they did not receive the benefits under the franchise agreement or under the wider arrangement to which the representations entitled them.
Orders sought
7 The applicants ask the Court for orders as set out in paragraphs 4 and 6 Part A, or in the alternative paragraph 3 of Part A in the Amended Summons for Relief.
8 The orders sought in paragraph 4 and 6, in effect seek to vary the franchise agreement to include provisions which would prevent the respondents from making false, misleading and/or deceptive representations or from engaging in misleading and deceptive conduct in relation to the franchise agreement whether prior to or after entering into that agreement; and the inclusion of a provision that the respondents be required to provide assistance to the applicants to ensure that the franchise business operated satisfactorily, in particular by ensuring the adequacy of the fixtures, fittings and equipment supplied by the first respondent for use at the applicants' shop, and, by ensuring that the applicants' franchise business had the opportunity to trade during sufficient hours. Also sought is an order that the franchise agreement be terminated, rescinded or avoided upon a contravention by or on behalf of the respondents of any of the provisions referred to immediately above, or in the event of a failure by any of them to provide the requisite assistance as requested.
9 A further order sought is for a variation of the franchise agreement so as to delete any provisions that allow or permit, or fail to prevent, any conduct by or on behalf of the respondents that contravenes or is not consistent with any of the provisions referred to in paragraphs 4 and 6 of Part A of the Amended Summons.
10 In the alternative the applicants seek an order avoiding the franchise arrangement, or part thereof including the franchise agreement.
11 The applicants also seek orders under s 106 for the payment of money from all respondents in order to restore them to the situation that existed prior to the entering into of the franchise agreement as well as making remedial provision for what has taken place or been done during the currency of the arrangement: Brown v Rezitis (1970) 127 CLR 157 at 164.
Confidential exhibits
12 Before addressing the evidence in detail it is necessary to first dispose of a preliminary matter which arose during the course of the proceedings. This matter concerned the tender of a number of exhibits which I ruled could be tendered on the basis of confidentiality. At the time of the admission of these exhibits into evidence I informed the parties that I would give my reasons at a later time, which I will now endeavour to do.
13 During cross-examination of Mr Robberds, Mr Newall of counsel, appearing for the third and fourth respondents tendered a document previously marked MFI B in the proceedings. Objection was taken to the tender by the applicants' counsel, Mr Neil. The basis of the objection, so the Court was told, was that MFI B was a document that fell within s 131(1)(a) and (b) of the Evidence Act 1995.
14 Three further documents, namely documents marked MFI C, D and G were tendered by Mr Newall to which objection was taken (except the document marked MFI G) by the applicants on the same basis, that is, that the documents fell within s 131(1) of the Evidence Act.
15 The parties then proceeded to make submissions on the preliminary point. Lend Lease was also contacted in order to afford it the opportunity of making submissions in relation to the documents. Lend Lease's potential interest in the tender of the documents arose because MFI G is a Deed of Release executed by the applicants as lessees and Lend Lease as lessor of Shop T330 Erina Fair Shopping Centre. Lend Lease advised the Court that it did not object to the tender of the Deed of Release and its contents. During submissions, Lend Lease, through its legal representative, Ms Banton told the Court: