(4) The Commission failed to give any significance to the fact that the Bank Opponents were clearly linked credit providers and even if they personally were free of fault because of their close association with the Tartak Opponents, orders should have been made against them as well.
12 The applicant acknowledges that there is need for the Attorneys General to be notified under s 78B of the Judiciary Act 1903 (Cth). This has been done but none of the Attorneys took up the invitation to become involved in the proceedings.
13 It is difficult to know whether to deal with s 179 first or deal with the arguments of the applicant on the merits. Perhaps, though it is a little illogical, I will deal with the merits first.
14 As I have said, there are four basal arguments. The first reflects the fact that the Full Bench found that the misrepresentation was made out, but declined to give relief. This was because it ruled that the applicant's behaviour also materially brought about the contract and that the applicant was given early opportunities to escape from it, which he declined to take.
15 The applicant quarrels with the statement that his conduct was in any way misleading or blameworthy and, as to the chances of escape, he points out that these were at a time when the misrepresentations were still operative, and it is really unfair to say that his relief is to be denied on that basis. The applicant says that once the Commission finds that there is an operative material misrepresentation, it has no option to exercise some so-called discretion to dismiss his case.
16 That may be the situation of a court of law that was hearing an application under the Trade Practices Act or a court of equity hearing a case to set aside a contract on the ground of misrepresentation. However, it must be remembered that the present application was neither of these. It was an application to a statutory body, the NSW Industrial Relations Commission, under a particular statute which gives the Commission limited powers. The authorities tend to show that the Industrial Relations Commission has no jurisdiction to exercise the powers under the Trade Practices Act or indeed any Commonwealth Act. It is a body that has been created for particular purposes, including to exercise the jurisdiction under s 106.
17 I have set out the text of s 106(1) and that does appear to give the Commission a discretion as to whether it will make any order, even if it finds that there is an unfair contract - note the word "may". Indeed, consistent decisions of the Commission, which as far as I know have not been attacked, such as Finch v Copperart Pty Ltd (1995) 62 IR 162 and Westfield Holdings v Adams (2001) 114 IR 241, show that that is a way in which the Commission has consistently carried out its jurisdiction under that particular section.
18 Accordingly, in my view, it is a gross overstatement to say that the Commission was bound once it came to the view that there was a material misrepresentation to make an order. It had statutory powers, it had statutory discretionary powers and it was in my view entitled to do what it did. It may be that Mr King is quite correct to say there was some mistake made by the Commission as a matter of fact in putting the blame on him to an unfair extent but tribunals need to evaluate the whole of the evidence. The Commission could have come to that view on the facts and did so, and there is nothing that this Court would be able to do about it on an ordinary appeal, even putting aside the effect of s 179 of the Industrial Relations Act.
19 As to the second ground, I have not seen anything in the papers which suggests that the Commission was unduly influenced by the fact that the applicant was a self-represented litigant. As to bias, I think, with respect, Mr King misapprehends the way in which that term is used in the law. There is nothing to suggest that there is bias as a matter of law in his complaint. If he considers that the reasons of the Commission unduly put the blame on him and ignored some of the problems caused by the franchisor, well then that is one of the problems that frequently come to litigants when a court has made a decision of fact against them. Just because a court or commission makes a decision against a person does not mean at all that there was any bias involved.
20 The third and the fourth points can be put together. The applicant never relied on the Trade Practices Act until the end of 2004. In the initial hearing before Marks J and before the Full Bench, the point was not raised. Mr King submits that covering cl 5 of the Australian Constitution compels the Commission to apply the Commonwealth law. Covering cl 5 reads:
"This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State..."
21 That section is of course observed by every court including the Commission, but it only operates in respect of the laws of the Commonwealth that are actually applicable to any particular question that is before the Commission. In the instant case, the Act was not raised before Marks J or the Full Bench. There was limited jurisdiction in the Commission to have regard to anything outside s 106 and it is not, with respect, correct to say that because, had the proceedings been brought under the Trade Practices Act or under the general law, a particular result would follow, Commonwealth law mandates that the same must follow under s 106.
22 Accordingly, if this Court had jurisdiction to deal with the appeal or application for prerogative orders on the merits, the applicant would fail.
23 Because of this it is unnecessary in my view for this Court to consider the operation of s 179. I have already referred to Mitchforce. In the instant case, Mr King submitted that s 179 is invalid and he relies on both covering cl 5 of the Australian Constitution as well as the dictum of McHugh J in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 114. I do not need to quote it as it is quoted by Spigelman CJ in Mitchforce at p 237 para 120.
24 The point was taken before the Court of Appeal in Mitchforce but as Spigelman CJ said at para 123 and Mason P at 149, the Court should not decide the point unless it was necessary to do so. I take the same view here and indeed this is why I dealt with the merits first, because it seemed to me on the merits the point was unnecessary to decide and the Court has not heard argument from people who are interested in the point which would aid it to come to a definitive decision.
25 However, it must be remembered that s 179 is a very wide provision. It is not so wide, as Mitchforce demonstrates, that it excludes supervisory review by this Court in a very narrow range of cases. As the Chief Justice said in Mitchforce at p 233 [92]:
"Section 179 should be construed so as not to protect from review a 'purported decision' which fails to satisfy the threefold Hickman principle (see R v Hickman; E parte Fox and Clinton (1945) 70 CLR 598 at 614-5) or, if it be a separate proposition, which fails to observe an inviolable restriction or restraint. However, jurisdictional error that cannot be so categorised is exempt from review."
26 Accordingly, unless the Court had decided that s 179 was invalid, there would be a very strong argument that it inhibited the Court from giving any relief in this matter. For the above reasons, my view is that the summons should be dismissed with costs.
27 GILES JA: I agree with Young CJ in Eq, with two additional observations.
28 First, I do not see that the issues before us require us to enter into the question of whether or not the Commission was mistaken as a matter of fact in attributing blame to the applicant, or indeed whether that is a correct description of what the Commission did, and I should not be taken to have indicated anything on that subject.
29 Secondly, in addition to the applicant's reliance on covering cl 5 of the Constitution I understand that he also relied on its s 109, the inconsistency provision whereby in the event of inconsistency between a State and a Federal law, the Federal law shall prevail. The argument was related to that described by Young CJ in Eq, and was to the effect that the Trade Practices Act prevailed over s 106 and, because the High Court in I & L Securities Pty Limited v HTW Valuers (Brisbane) Pty Limited (2002) 210 CLR 109 had held that contributory negligence was not a defence to a claim for damages under s 82 of the Trade Practices Act, it was not open to the Commission to exercise a discretion (which the applicant equated with ascribing contributory negligence to him) when it came to its decision as to unfairness and the consequences of unfairness and whether the franchise agreement should be varied.
30 The argument has a number of difficulties, one being that the question of contributory negligence under the Trade Practices Act is not the same as the question of the exercise of a discretion conferred by s 106. More fundamentally, s 106 is a separate and independent basis of jurisdiction for the Commission. It was not exercising any jurisdiction by way of a claim for damages under the Trade Practices Act, and so there was no question of Federal law prevailing over State law.
31 With those additional observations, I agree with the orders proposed by Young CJ in Eq.
32 HUNT AJA: I agree with the Chief Judge in Equity and the further observations of the presiding Judge.
33 GILES JA: That will be the order of the Court.