Informax International Pty Ltd v Clarius Group Limited

Number of paragraphs: 40

Counsel for the Appellants / Cross-Respondents: Mr M J Kimber SC and Mr N E Furlan

Solicitor for the Appellants/ Cross-Respondents: Harmers Workplace Lawyers

Counsel for the Respondent/Cross-Appellant: Mr A Moses SC and Mr Y Shariff

Solicitor for the Respondent/ Cross-Appellant: Lander & Rogers Lawyers

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1484 of 2011

JUDGES: BESANKO, JAGOT AND BROMBERG JJ DATE OF ORDER: 6 FEBRUARY 2013 WHERE MADE: SYDNEY

1. The Appellants have leave to further amend their Notice of Motion dated 21 April 2011 by adding an additional prayer for relief in the Second Further Amended Application that accompanied the Notice of Motion as follows: 3B Order that, with effect on and from … 2013, the Candle Contract (as extended on 1 June 2008) is varied to include the following further terms: 14 If Candle has taken any step to enforce a provision in a contract between Candle and the Client, the purpose or likely effect of which was (in whole or in part) to fetter, restrain or otherwise impede the Contractor or the Principal Person from being directly or indirectly engaged by the Client at a time when this agreement no longer restrained the Contractor from being so engaged after 1 August 2008, then Candle shall be liable to compensate the Contractor for any loss or damage occasioned thereby. 15 If Candle has procured or encouraged the taking of any step by the Client to enforce a provision of the kind referred to in clause 14, then Candle shall be liable to compensate the Contractor for any loss or damage occasioned thereby. 16 If Candle has engaged in the conduct contemplated by clauses 14 and/or 15, such that the Contractor or the Principal Person was denied work and/or the opportunity to work for the Client in the period from October 2008 to November 2010, then the compensation to be paid by Candle to the Contractor on or before … 2013 will be $450,000.
2. The appeal be allowed.
3. The first order made by the primary judge on 29 March 2011 and the second and third orders made by the primary judge on 18 October 2011 be set aside.
4. The appellants' Notice of Motion dated 21 April 2011 as amended be remitted to the primary judge for hearing and determination in accordance with the reasons of this Court and otherwise in accordance with law.
5. There be no order as to the costs of the appeal.
6. The cross-appeal be dismissed.
7. There be no order as to the costs of the cross-appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1484 of 2011

JUDGES: BESANKO, JAGOT AND BROMBERG JJ DATE: 6 FEBRUARY 2013 PLACE: SYDNEY

Introduction 1 The Court published reasons in this appeal and cross-appeal on 20 November 2012: Informax International Pty Ltd v Clarius Group Limited [2012] FCAFC 165. These reasons should be read with those reasons. Except where it is convenient to do otherwise, we will use similar abbreviations and terms to those which we used in our reasons published on 20 November 2012. The Court gave the appellants the opportunity to make an interlocutory application in which they sought leave to amend their notice of motion dated 21 April 2011 so as to claim an order which is within power. The appellants made such an application on 26 November 2012. In that application they sought the following order: 1 An order that the Appellants have leave to further amend their notice of motion dated 21 April 2011 by adding an additional prayer for relief as follows: 3B Order that, with effect on and from … 2013 [operative date to be inserted], the Candle Contract (as extended on 1 June 2008) is varied to include the following further terms: 14 If Candle has taken any step to enforce a provision in a contract between Candle and the Client, the purpose or likely effect of which was (in whole or in part) to fetter, restrain or otherwise impede the Contractor or the Principal Person from being directly or indirectly engaged by the Client at a time when this agreement no longer restrained the Contractor from being so engaged after 1 August 2008, then Candle shall be liable to compensate the Contractor for any loss or damage occasioned thereby. 15 If Candle has procured or encouraged the taking of any step by the Client to enforce a provision of the kind referred to in clause 14, then Candle shall be liable to compensate the Contractor for any loss or damage occasioned thereby. 16 If Candle has engaged in the conduct contemplated by clauses 14 and/or 15, such that the Contractor or the Principal Person was denied work and/or the opportunity to work for the Client in the period from October 2008 to November 2010, then the compensation to be paid by Candle to the Contractor on or before … 2013 [operative date to be inserted] will be $450,000. 2 With the interlocutory application the appellants lodged a draft Amended Notice of Motion and a draft Second Further Amended Application. The latter document included the above prayer for relief, but deleted reference to proposed prayer for relief 3A (see paragraph 38 of our reasons). 3 The respondent opposed the application. The Court considered it appropriate to decide the matter by reference to written submissions and the following written submissions were made: 1. Appellants' Submission in support of Application to Amend their Notice of Motion of 21 April 2011; 2. Respondent's Outline of Submissions in Reply to Appellants' Submissions; 3. Appellants' Submissions in Reply; and 4. Appellants' Submissions as to the Orders it seeks in the Appeal.

The Primary Judge's First Judgment (Informax International Pty Ltd v Clarius Group Limited [2011] FCA 183) 4 As our reasons state, in his first judgment the primary judge found that the Candle contract was unfair within the meaning of s 12(1) of the Independent Contractors Act 2006 (Cth) ("IC Act") and, on 29 March 2011, he granted relief under s 16(1) of the IC Act. That subsection gives the Court the power to make, among other things, an order varying the contract in question. The order which his Honour made on 29 March 2011 was as follows: 1. The contracts between the Applicants and the Respondent of 31 May 2008 and 4 June 2008 be varied by the addition of the following terms: "14. Candle will not take any step to enforce any provision in any contract between Candle and the Client, the purpose or likely effect of which would be (in whole or in part) to fetter, restrain or otherwise impede the Contractor or the Principal Person from being directly or indirectly engaged by the Client during the period of 17 September 2008 to 1 October 2008 (being a period after the expiry of this agreement) including any restraint provision that exists before the formation of this agreement. 15. Candle will not procure or encourage the taking of any step by the Client to enforce a provision of the kind referred to in clause 14. 5 This order reflected one of the orders claimed by the appellants in their Further Amended Application (paragraph 2(a)) which was lodged on the first day of the trial before the primary judge. In other words, the primary judge made orders in terms of one of the orders sought by the appellants. The Further Amended Application was the third iteration of the Originating Application, the first was dated 19 June 2009 (Application) and the second was dated 16 October 2009 (Amended Application). 6 Neither party challenged the conclusion that the contract between the appellants and Candle ("Candle Contract") had come to an end on 30 June 2008. Furthermore, the primary judge found that the contract between Informax and Woolworths Ltd expired by effluxion of time at midnight on 30 September 2008 and neither party challenged that finding. In those circumstances, the relief sought by the appellants was damages flowing from the unfairness in the Candle contract. In theory, they could do that in either one of two ways. They could claim damages for breach of the Candle contract as varied or they could claim damages under a term of the contract which expressly provided for the payment of damages in the event of breach. The appellants decided to pursue both of those avenues of relief. 7 In his Honour's first judgment he noted that in paragraph 7 of the appellants' Further Amended Application they sought leave to amend their proceedings in the event that relief was granted under the IC Act. He noted that that application was opposed by the respondent which said that the appellants were now effectively seeking "damages for retrospective breach of a retrospectively varied contract". His Honour considered it appropriate to allow the parties to digest his reasons and for the appellants to make any application to amend their proceeding by notice of motion. 8 His Honour rejected the appellants' claims under the Trade Practices Act 1974 (Cth) and for breach of contract (that is, the alleged entire agreement clause) respectively. He said it would be possible for him to assess damages in relation to those claims "in the alternative" but he did not consider it appropriate to do so until the question of whether there was to be any amendment to the pleadings was finalised.

The Primary Judge's Second Judgment (Informax International Pty Ltd v Clarius Group Limited (No 2) [2011] FCA 934) 9 Following the primary judge's first judgment the appellants brought a notice of motion dated 21 April 2011 seeking leave to file and serve a Second Further Amended Statement of Claim. That notice of motion was subsequently amended before the second hearing before the primary judge to include a claim seeking leave to file and serve a Second Further Amended Application. The appellants sought to add a claim for relief in the Second Further Amended Application in the following terms: 3A Further or in the alternative, an order varying the contracts between the Applicants and the Respondent of 31 May 2008 and 4 June 2008 by the addition of the following term: If Candle acts in a manner inconsistently with clause 14 or clause 15, Candle will pay on 1 July 2011, the Contractor the sum of $450,000 (being the loss suffered by the Contractor from being engaged during the period from 17 September 2008 to 1 October 2008 and the loss of opportunity for the Contractor being engaged during the period from 2 October 2008 to 30 June 2010. 10 The appellants' Amended Notice of Motion came on for hearing before the primary judge on 10 June 2011. There were two key issues before the judge. 11 The first issue was whether the order made by him on 29 March 2011 varying the Candle contract by the addition of clauses 14 and 15 had retrospective operation or should be amended to make it clear that it was to have retrospective operation. In his second judgment, the primary judge referred to s 16(4) of the IC Act and answered that question in the negative. 12 The primary judge then considered the appellants' application to amend his Originating Application to add prayer 3A. His Honour noted the difficulty with proposed prayer 3A in view of the terms of clause 14 and 15 and his conclusion that his variation order did not operate retrospectively. That difficulty was that the respondent could only act in a manner inconsistent with clauses 14 and 15 after 29 March 2011 and there was no suggestion that it had done so. 13 His Honour then noted and dealt with the four arguments the respondent raised in opposition to the application to add prayer 3A. Those arguments and his Honour's treatment of each argument may be summarised as follows: (1) The respondent submitted that the unfairness with which the IC Act was concerned was with matters subsisting at its inception (s 12(3)). The events said by the appellants to give rise to the right to compensation arose after both contracts' formation and may not, therefore, be examined by the Court. The primary judge concluded by reference to ss 12, 15 and 16 of the IC Act and, in particular s 16(2), that the opinion was as to unfairness which existed at the time of the contract's inception and that a remediating order under s 16(2) was similarly limited. His Honour said (at [51]): This suggests, and I conclude, that this Act is concerned with the prospective remediation of unfair or harsh contracts (e.g. s 16(4)) and that unfairness or harshness is to be judged by reference to the circumstances existing at the time of the contract's formation (e.g. s 12(3)). There is no room in its provisions for attempts to obtain compensation for the fact of a contract having been unfair in its operation in the past. Any attempt to formulate the compensation for that past operation takes one directly into the forbidden area lying between the moment of the contract's inception and the making of the Court's orders. The effect of ss 12(3) and 16(4) is to operate as a bar on the consideration of events falling in the range delimited by them. A little later his Honour said (at [53]): The combined operation of ss 12(3), 16(2) and 16(4) is to prevent an examination of the matters which would need to be examined in order to undertake an assessment of the appropriate compensation. (2) The proposed variation to the Candle contract set out in prayer 3A would, as a matter of contract law, be an unenforceable penalty and the Court would not insert into a contract a term which was invalid. The primary judge did not need to decide whether this submission was correct, although he said that the compensation awarded was likely to be a reasonable estimate of the liability arising from the breach and hence not a penalty (at [55]). (3) The application to amend the Originating Application had been delayed and no explanation had been proffered for that delay. The primary judge said that there was no real prejudice to the respondent and that he would otherwise have permitted the amendment "(but for the legal difficulties identified)" (at [57]). (4) The orders of 29 March 2011 had been entered. The primary judge said that he would not have accepted this argument because the orders had not, in fact, been entered (at [57]).

This Court's Decision 14 On the appeal and the cross-appeal we upheld the primary judge's conclusion that by reason of s 16(4) of the IC Act the Court cannot make an order which operates retrospectively. We said that orders under s 16(4) "may only be prospective in operation" (at [179]). However, we held, contrary to the primary judge's view, that an order could be made with future effect but in respect of past matters or events (at [180]) or which varied a contract "which had a remedial scope dating back to the contract's formation but an operative effect from the date of the Court's order" (at [182]). In other words, we rejected the argument which was the first of the respondent's four arguments before the primary judge. Nevertheless, the difficulty for the appellants with prayer 3A in light of clauses 14 and 15 was that identified by the primary judge (see [12] above).

the Merits of the Appellants' Application 15 Although we are only deciding whether to give leave to amend the notice of motion and not whether to give leave to amend the Originating Application, it is necessary for us to address aspects of the variations to the Candle contract now sought by the appellants in order to determine whether leave to amend the notice of motion should be granted and the matter remitted to the primary judge for hearing and determination. 16 The first matter to note is that proposed clauses 14 and 15 are in the same terms as clauses 14 and 15 inserted in the contracts by reason of the order made by the primary judge on 29 March 2011, save and except for the fact the latter are expressed in a way which would cover future breaches only, whereas the former are expressed in a way which would cover past breaches. 17 The second matter to note is that if it is appropriate to grant the appellants' application, then we think it is appropriate to set aside the order made by the primary judge on 29 March 2011, because, as we have held, the primary judge was correct to conclude that the order could not operate retrospectively and that means, in the circumstances of this case, that clauses 14 and 15 as embodied in the primary judge's order serve no useful purpose. In our view it would not be appropriate to allow those clauses to stand in circumstances where an order was to be made inserting proposed clauses 14 and 15. Renumbering proposed clauses 14 and 15 does not seem to us to remove the difficulty or incongruity in allowing the order made by the primary judge on 29 March 2011 to stand. 18 The third matter to note is that in our opinion an order varying the contract to insert proposed clauses 14, 15 and 16 would be an order within the power of the Court under s 16 of the IC Act. We refer to our reasons published on 20 November 2012. 19 The fourth matter to note is that whether there are any other objections to the Court's power to make an order varying the contract to insert proposed clause 16 is not a matter this Court has considered and will be a matter for the primary judge to decide should we remit the appellants' notice of motion to him. 20 The fifth matter to note is that should this Court decide to remit the appellants' notice of motion back to the primary judge, it will be for his Honour to decide whether - should he decide not to make an order in terms of proposed clause 16 - he nevertheless makes an order in terms of proposed clauses 14 and 15 and assesses damages in the exercise of the accrued jurisdiction of the Court. 21 The final matter to note is that should we allow the appellants' application to amend their notice of motion and the primary judge subsequently decides that it is appropriate to make an order varying the contract in terms of proposed clause 16 then it will be a matter for his Honour to determine the amount to be inserted in the proposed clause. This Court was told that evidence as to damages sufficient to enable an assessment to be made was before the primary judge. That evidence was not before this Court and that is at least one of the reasons why this Court could not consider whether or not to make the proposed orders the appellants now wish to have included in their notice of motion dated 21 April 2011. Furthermore, we note that in the primary judge's second judgment and in the context of his consideration of prayer 3A, his Honour made the following observation (at [44]): I should also record that it was accepted at the hearing that the figure of $450,000 would need to be altered to reflect whatever the correct compensation sum was ultimately determined to be. 22 We turn now to the matters which are relevant to whether the appellants' application to amend their notice of motion should be allowed or refused. 23 We think this Court has the power to make the order sought by the appellants by reason of the powers given to the Court in the exercise of its appellate jurisdiction in s 28 of the Federal Court of Australia Act 1976 (Cth) (see Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409; Classic Gourmet Sausages Pty Ltd v Lida Commercial Properties Pty Ltd (2000) 97 FCR 313 at 320 [29] per Gallop J at 330-331 [80]-[85] per Hill J and 334 [102] per Gyles J). We did not understand the respondent to contend to the contrary. As the cases to which we have referred make clear, the guiding consideration in terms of the exercise of the power is the interests of justice. 24 The respondent referred to ss 37M and 37N of the Federal Court of Australia Act and to observations of the High Court in AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 in support of its submission that the appellants' application should be refused. In AON Risk Services Australia Ltd (at 214-216 [108] and [102]) per Gummow, Hayne, Crennan, Kiefel and Bell JJ) the High Court emphasised in the context of the exercise of the discretion to allow amendments to pleadings, the need to accord proper weight to delay and the costs associated with the amendment. Those are matters this Court must have regard to by reason of the provisions of ss 37M and 37N of the Federal Court of Australia Act. 25 With respect to costs it is relevant to note that the IC Act provides that costs may not be ordered in a proceeding in a matter arising under Part 3 (Unfair Contracts) unless, relevantly, a party has, by unreasonable act or omission, caused another party to the proceeding to incur costs in connection with the proceeding (s 17). 26 If we grant the application then the appeal will be allowed and the notice of motion will be remitted to the primary judge for hearing and determination in accordance with the reasons of this Court and otherwise in accordance with law. If the primary judge makes the orders in the notice of motion then they may ultimately lead to the appellants obtaining a money judgment against the respondent. If we refuse the application, then it follows that the appeal must be dismissed. 27 There are relevant considerations on both sides of the issue. The respondent points to the fact that the appellants had the opportunity to make the claim it now seeks to make when the proceeding was before the primary judge. That is true. However, that fact must be considered in the following context. As we read the primary judge's reasons in his second judgment he would not have refused leave to amend the claims for relief because the application was made too late in the proceeding. Furthermore, it seems to us that it would have been clear to the respondent on the hearing of the notice of motion, and indeed before that, that the appellants were seeking such relief from the respondent under the IC Act as would enable them to recover compensation or damages for the respondent's conduct in the second half of 2008. They choose to argue that the order made by the primary judge on 29 March 2011 operated retrospectively or, if that was not correct, that the order should be amended to make that clear and they did not argue, even in the alternative, that the order they now seek should be made. However, even if they had done that the primary judge would have dismissed their notice of motion for legal reasons which, with respect to the primary judge, this Court has found to be erroneous. In other words, an appeal would have been necessary in any event and a remitter to the primary judge highly likely. On that view, the appellants' failure to formulate the claim in the way they now wish to do has not led to the appeal or, should we grant the appellants' application, the remitter. In other words, having regard to the primary judge's approach in his second judgment, a form of remitter from this Court would have been necessary even if the appellants had sought leave to amend their Originating Application in the terms they now advance. 28 Furthermore, a relevant factor, which in this case favours the appellants, is that the area of law with which the application is concerned (that is, the scope of the Court's power under s 16 of the IC Act) is complex (see Commissioner of Taxation v Brambles Holding Ltd (1991) 28 FCR 451 at 456 per Beaumont J), subject to little authority, and, such authority as there is, apparently providing support for the position advanced by the appellants to the primary judge (Keldote Pty Ltd v Riteway Transport Pty Ltd (2009) 185 IR 155 at 163 [39] per Cameron FM; Keldote Pty Ltd v Riteway Transport Pty Ltd (2010) 195 IR 423). An illustration of the complexity is that until quite late in the proceedings before the primary judge, the respondent appeared to concede that the IC Act empowered the Court to vary or void ab initio services contracts, but did not empower the Court to make orders for damages, compensation or any powers to hold a party retrospectively liable for the payment of damages or compensation in respect of a retrospectively varied contract. Although these factors of complexity and uncertainty are relevant, we are cautious about giving them substantial weight. Our common law system is such that often one of the parties to a proceeding bears the burden of a clarification of the law. 29 The respondent points to the fact that "A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined circumstances": D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at 17-18 [34]-[35]. It also points to the well-known observations of Gibbs CJ, Wilson, Brennan and Dawson JJ in Coulton v Holcombe (1986) 162 CLR 1 at 7-8 as follows: The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined [that is, at the trial] and not otherwise. In a case where, had the issue been raised in the Court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards … 30 On the other hand, we note an amendment might be allowed, even on appeal, if it reflects the way in which the proceeding was conducted in the Court below: Leotta v Public Transport Commission (NSW) (1976) 50 ALJR 666 at 668; 9 ALR 437 at 446; Dare v Pulham (1982) 148 CLR 658. 31 We do not think the circumstances of this case fit squarely within either of the above observations. Rather, the circumstances of the present case are analogous to a party seeking to raise a point of law, being a technically different way of formulating a claim for relief, for the first time on an appeal. That may be permitted depending on all the relevant circumstances. We think that in light of the following matters the applicants' application should be allowed. First, both the primary judge and this Court have found unfairness in the relevant contract(s) within s 12(1) of the IC Act. Secondly, although the present application results from the appellants' failure to formulate at an earlier stage the appropriate form of relief, the substance of the relief sought by the appellants has been clear throughout. Thirdly, the primary judge said that he would have allowed the appellants to amend their claim for relief, but for the legal difficulties involved. Finally, the complexity and uncertainty in this area of the law reduces the weight, albeit to a limited extent, which might otherwise be placed on the forensic decisions made by the appellants. 32 In their written submissions on the orders they seek on the appeal the appellants introduced a new matter, namely, an application to amend their Notice of Appeal to add grounds of appeal which, they submit, reflect the findings of this Court. That application is opposed by the respondent. 33 In the appellants' Notice of Appeal which was the subject of our reasons published on 20 November 2012 they raised the following grounds of appeal: (5) The learned trial judge erred in law, in that, despite s. 16(2) of the IC Act (and the beneficial and protective character of the IC Act), he held that s. 16(4) of the IC Act was, in effect, the governing provision such that the IC Act was only concerned with the "prospective remediation" of unfair or harsh contracts (even though contracts already terminated at the time of the making of an application for review under the IC Act were amenable to review under the IC Act). (6) The learned trial judge erred in law, in that he held s. 12(3) of the IC Act did not permit the Court to have regard to matters occurring after the entry into a contract in formulating relief under s. 16 (as distinct from the carrying out of a 'review' under s. 12(1)). (7) The learned trial judge erred in law, in that he held the combined operation of ss.12(3), 16(2) and 16(4) of the IC Act was to prevent an examination of the matters which would need to be examined in order to undertake an assessment of the appropriate compensation so as to enable the making of an order in terms of prayer 3A of the Second Further Amended Application of 10 June 2011 (and as contemplated by s. 16(2) of the IC Act). 34 In paragraph 160 of our reasons published on 20 November 2012 we said: Those conclusions and their consequences are challenged by grounds 3, 5, 6 and 7 of Informax and Mrs Menano-Pires' grounds of appeal. For reasons we will explain, although we agree with the primary judge's ultimate conclusion that an order which varied the Candle contract in terms of prayer 3A should not have been made, we respectfully disagree with aspects of the primary judge's reasoning leading to that conclusion. Given that grounds 3, 5, 6 and 7 of the grounds relied upon by Informax and Mrs Menano-Pires are all ultimately directed at the primary judge's refusal to order a variation in terms of prayer 3A, each of those grounds should also be dismissed. 35 The appellants' application to amend their Notice of Appeal sought to add the following grounds of appeal: (1) The Primary Judge erred insofar as he held that the remedial scope of the scheme of the Independent Contractors Act (Cth) is limited to addressing the potential for future unfairness in the operation of a services contract. (2) The Primary Judge erred in holding that the Court was barred from taking into account facts and circumstances which had occurred in the "forbidden area lying between the moment of the contract's inception and the making of the Court's orders" in the formulation of relief under s.16 of the ICA. (3) The Primary Judge erred in declining to make an order varying the contracts as at the date of such order by including a term in the contracts to the effect that the Respondent would be liable for any loss suffered by the Appellants resulting from conduct of the Respondent which had the effect of preventing the Appellants from working for Woolworths Ltd at a time when the contracts no longer restrained the Appellants from doing so. 36 The statement in paragraph 160 of our reasons is correct in the context in which the appeal was argued. Had we been minded to refuse the appellants' application there would be no reason to amend or qualify it. However, it is also clear from our reasons that grounds 3, 5, 6 and 7 identify errors in the primary judge's reasons which would be upheld had the appellants previously sought the relief they now wish to claim. In the circumstances, we do not see a need to consider the appellants' application to amend their Notice of Appeal. 37 Finally, reference was made in submissions to s 17 of the IC Act. We have already referred to that section and the fact that it provides that prima facie no costs are to be awarded in relation to a proceeding (including an appeal) in a matter arising under Part 3 (Unfair Contracts) of the Act. It is not suggested by the respondent that the fact that costs are not ordinarily to be awarded is a reason to refuse the appellants' application. Such a proposition could not be sustained where one of the evident purposes of s 17 is to prevent costs from dissuading parties from pursuing their rights under the Act and the appellants' application is one which ought to be allowed by reference to ordinary principles. However, the respondent does seek an order for its costs thrown away should the appellants' application be allowed. Those costs would probably be limited to the costs of the amendment application before this Court because, as we have said, an appeal would have been necessary in any event, and some form of remitter highly likely. We are not minded to make the order sought by the respondent. Although the appellants could have sought the order they now seek at an earlier stage in the proceeding, we think that in view of the complexity and uncertainty in this area of the law the appellants' conduct cannot be characterised as an "unreasonable act or omission" within s 17(2) of the IC Act. 38 We will make the following order on the appellants' interlocutory application: That the Appellants have leave to further amend their Notice of Motion dated 21 April 2011 by adding an additional prayer for relief in the Second Further Amended Application that accompanied the Notice of Motion as follows: 3B Order that, with effect on and from … 2013, the Candle Contract (as extended on 1 June 2008) is varied to include the following further terms: 14 If Candle has taken any step to enforce a provision in a contract between Candle and the Client, the purpose or likely effect of which was (in whole or in part) to fetter, restrain or otherwise impede the Contractor or the Principal Person from being directly or indirectly engaged by the Client at a time when this agreement no longer restrained the Contractor from being so engaged after 1 August 2008, then Candle shall be liable to compensate the Contractor for any loss or damage occasioned thereby. 15 If Candle has procured or encouraged the taking of any step by the Client to enforce a provision of the kind referred to in clause 14, then Candle shall be liable to compensate the Contractor for any loss or damage occasioned thereby. 16 If Candle has engaged in the conduct contemplated by clauses 14 and/or 15, such that the Contractor or the Principal Person was denied work and/or the opportunity to work for the Client in the period from October 2008 to November 2010, then the compensation to be paid by Candle to the Contractor on or before … 2013 will be $450,000.

The Appeal and Cross-Appeal 39 As we have said, it follows that the appeal must be allowed. The first order made by the primary judge on 29 March 2011 and the second and third orders made by the primary judge on 18 October 2011 must be set aside. The appellants' notice of motion dated 21 April 2011 as amended is remitted to the primary judge for hearing and determination in accordance with the reasons of this Court and otherwise in accordance with law. There should be no order as to costs on the appeal. 40 The cross-appeal must be dismissed. There should be no order as to costs on the cross-appeal. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Besanko, Jagot and Bromberg.