Newsagents Association of NSW and ACT Ltd v John Fairfax Publications Pty Limited

Newsagents Association of NSW and ACT Ltd v John Fairfax Publications Pty Limited - [2006] NSWIRComm 409 - NSWIRComm 2006 case summary — Zoe

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1 On 14 December 2006 the applicant, the Newsagents Association of NSW and ACT Ltd, commenced proceedings against the respondent, John Fairfax Publications Pty Limited, pursuant to s 106 of the Industrial Relations Act 1996 (the respondent will be referred to variously as "Fairfax" or "the respondent"). The proceedings concerned a member of the applicant, Mr David Boag, and sought, inter alia, a declaration that the contract, arrangements and/or any related condition or collateral arrangements made between Mr Boag and the respondent on or about 1 February 2000, including the three written agreements made between Mr Boag and the respondent on or about 1 February 2000, whereby Mr Boag performed work in an industry in New South Wales is, or in the alternative is part of, an unfair contract within the meaning of ss 105 and 106 of the Act. 2 The application recites that the applicant is a separate organisation registered pursuant to s 217(1)(c) of the Industrial Relations Act and is registered as an industrial organisation of employers under Part 3 of Chapter 5 of the Act; that it has members, including Mr Boag, who employ persons working in the newsagency and newspaper distribution industry to which the agreements, the subject of the proceedings, relate; and that it may apply for orders pursuant to s 108(c) of the Act. 3 At the time the proceedings were commenced they were accompanied by a letter from the applicant's solicitors requesting that the matter be listed for hearing of the applicant's interlocutory application on the following day, Friday 15 December 2006 "lest the applicant's rights be rendered nugatory by the effluxion of time". Accordingly the matter came before Haylen J on 15 December to deal with the application for interlocutory relief. At that time and after some preliminary debate and an adjournment when the parties considered their respective situations, the parties announced that an agreement had been reached between them, including between the respondent and Mr Boag as to the interim disposition of the interlocutory application. The agreement in substance involved an agreement that the notice of termination of the three agreements between Fairfax and Mr Boag would be extended to midnight on Thursday 21 December 2006, subject to certain terms, including an undertaking as to damages. The parties also advised the Court that the most suitable day for the hearing of the interlocutory application was Thursday 21 December. 4 The matter accordingly came before me as duty judge on 21 December when the parties tendered evidence and made submissions as to the interlocutory application. At the time the applicant amended its application for interlocutory relief to the following: 1. The Respondent be restrained pending final determination of the proceedings, or until further order of this honourable Court, from: (a) terminating, or giving effect to or acting in any way on any notice of termination of, the Specialist Newsagent Agreement, the Retail Distributor Agreement and the Home Distributor Agreement ("the Agreements") made between the Respondent and a member of the Applicant, Mr David Boag, on or about 1 February 2000; and

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17 It is convenient at this stage to refer briefly to the nature and some of the terms of the three contracts between Mr Boag and Fairfax. The first agreement is entitled "Specialist Newsagent Agreement". The Agreement contains a short description of the subject matter of the Agreement and the work which is the subject of the Agreement. It is said that the Agreement applies to the sale of publications in a retail outlet by a retailer who holds both a Retail Distributor Agreement and a Home Distributor Agreement with Fairfax. The Agreement commenced on 1 February 2000 and was to continue until 31 December 2005. The Agreement also provided that if no notice of termination was given under the Agreement by 31 January 2005, "then this agreement will extend for further consecutive terms of 12 months each". Any extension of the Agreement was to be on the same terms as the Agreement except that the provision that the Agreement was to be terminated on 31 January 2005 was not to apply. 18 What was described as "early termination after 1 February 2004" was dealt with in clauses 1.4 and 1.5. These clauses provided that, notwithstanding the earlier provisions of the Agreement, Fairfax could terminate the Agreement from 1 February 2004 at any time without cause by giving at least 12 months' notice at any time to the Specialist Newsagent although such notice was not to be given before 1 February 2004. Clause 1.5 provided that the parties acknowledged that Fairfax had the rights of early termination as set out in Clause 1.4 and that Fairfax could exercise those rights due to changing circumstances as considered appropriate by it, and having regard to the annual review process referred to in clause 3.4 of the Agreement. Further, Fairfax was not able to provide any assurance and made no representation that the Agreement would be extended beyond 31 January 2005 when it expired. It was pursuant to clauses 1.4 and 1.5 that Fairfax gave the notice of 16 December 2005 to Mr Boag. Clause 5 contained extensive provisions providing for termination by Fairfax for cause. 19 Clause 8 (Sale or Assignment and Change in Control) prevented the Newsagent from selling or transferring the business without Fairfax's prior written consent. Clause 8.4 provided: 8.4 Fairfax has agreed to enter into this agreement on the basis that the Contact Person is directly and personally involved in the business and devotes their personal efforts to the business. If the Contact Person ceases to be a partner, director, joint venturer or shareholder of the Specialist Newsagent (as the case may be), the Specialist Newsagent must seek Fairfax's written consent to the replacement of that person, which consent will not be unreasonably withheld. 20 Clause 9.2 (Goodwill) provided: 9.2 This agreement does not confer upon the Specialist Newsagent nor will the assignment, transfer, novation or subcontracting of this agreement as part of the Specialist Newsagent's business in accordance with clause 8.1, confer upon such a purchaser or other party any right of property or goodwill in the business of the sale of Publications. 21 The other two Agreements were substantially in the same terms. The second Agreement was entitled "Retail Distributor Agreement" and stated that it "applies to the sale of Publications by the Retail Distributor to News Retailers, General Retailers and such other retailers as notified by Fairfax". The third Agreement was entitled "Home Distributor Agreement" and applied to the sale of publications by way of home delivery. The contentions of the parties

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(It appears that Mr Boag was in error as to what was said in the second of the above paragraphs - he appears to have forgotten or overlooked the events described in para [14] to [16] above - but nothing turns on that oversight for present purposes). 25 Mr Boag also said that under a General Retailer (sub-agent) arrangement as proposed by Fairfax he would lose the benefit of the Retail Distributor Agreement and the Home Distributor Agreement. He would not be entitled to make home deliveries or to deliver the respondent's publications to retail outlets and, accordingly, would no longer be entitled to receive commission for those deliveries. Additionally, his overall commission, calculated under the three agreements would be reduced from 25 per cent to 12.5 per cent and the loss of the distribution business would also reduce the resale value of the newsagency. 26 In response to Mr Boag's claims, Mr Jordan referred to a number of occasions when Mr Boag advised Fairfax or prospective new subscribers that he did not wish to take on new home delivery customers for Fairfax publications. The examples given occurred in 2002 and 2004. Reference was also made to Mr Boag's repeated refusal to use "Connect", an electronic data interchange system used by Fairfax, to "interact" with Fairfax. The concerns of Fairfax as to this matter arose because the use of computer technology now forms the basis of information and data interchange between Fairfax and newsagents and the use of such facilities was part of the contract system put in place in 2000. It was said that the fees paid to newsagents comprise a base fee and a service fee of which 2 per cent of the commission related to using "Connect". Mr Jordan also said that: In December 2005, I was of the view that Fairfax could increase its sales and circulation if it used a different operator willing to more actively promote and keep growing sales of publications in this territory. To achieve that end, it was decided to give Mr Boag 12 months notice of termination of his Contracts in accordance with the terms of those Contracts. Notice of termination was provided in a letter dated 16 December 2005. Exhibited to me at the time of swearing this affidavit and marked 'LJ8' is a copy of the letter 27 As to the meeting on 12 January 2006 Mr Jordan indicated that Fairfax arranged for an employee to be present and take notes of the meeting and a copy of those notes were annexed to his affidavit. Mr Jordan emphasised that during the meeting there was a discussion of customer complaints received in the past and specific reference was made to Mr Boag's failure to appoint sub-agents in the last five years. Mr Boag had said that he had not appointed any sub-agents because there was none available, there was simply nothing in the area. To this Mr Jordan responded: None available? There's countless cafes, kiosks and offices on Bourke Road alone - what about all of them? They're in your territory aren't they?

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iii. refrain from exercising any of its discretions under the Agreements, including those relating to the termination of those Agreements, capriciously or in bad faith, or in a way that is irrational or perverse, or arbitrarily and for a collateral purpose. 32 Reference was also made to the difficulty that the applicant would have, if the contracts were to be terminated, in persuading the Court it had jurisdiction to make an order which would have the effect of restoring a contract which had ceased to have any effect; that is, creating a new relationship where the old one ceased. In the circumstances where the remedy of variation would for practical purposes become ineffective once the contracts were terminated, it was submitted the applicant easily met the test for the exercise of the Court's jurisdiction to make the interlocutory orders sought. 33 Mr Neil submitted in the alternative, should the Court be persuaded as determinative the fact that as an alternative and secondary claim the applicant applied for a money order, the difficulty of assessing the amount of such money order in this case was significant. The task required in assessment, assuming the applicant were successful on liability securing the orders for the variations sought, would be to assess not how much the applicant would have earned during the period of notice, but to assess the value of the contracts to Mr Boag having regard to a valuation as to the likelihood or otherwise that the respondent would have been in a position to exercise a qualified right of termination such that it would then have. That task of assessment is particularly difficult and, as Haylen J held in Sea Acres Rainforest Centre Pty Ltd v New South Wales (2001) 109 IR 56, the difficulty of the making of such assessment is a consideration which dictates against refusing interlocutory relief even when it is thought the availability of a money order is not a decisive situation. 34 As to the assessment of the balance of convenience, Senior Counsel submitted that the evidence is effectively all one way; if the contracts are allowed to come to an end, then that will be the end of the matter as far as those contracts are concerned for practical purposes, although (without formally conceding the issue) the Court would be left with a money order as the only measure or means of affording relief. On the other hand, the respondent points to no real prejudice if the contracts remain on foot pending hearing of the final applications. Senior Counsel also submitted that the respondent's reliance on the applicant's alleged delay was not made out. 35 Fairfax strongly contested the applicant's claim for interlocutory relief. Emphasis was placed on the terms of the contracts by which Mr Boag was appointed as agent for the respondent to inter alia: (i) provide home delivery to customers of various Fairfax publications; (ii) supply various Fairfax publications to retail outlets in a specific territory; and (iii) sell Fairfax publications at his newsagency to his customers. 36 Fairfax relied on the consideration that, as an appointed agent, Mr Boag did not purchase or acquire any business or part of any business from the respondent; and that he was remunerated by way of commission for sales arising from the performance of the three contracts. Important to the respondent's case was that the contracts were formulated after lengthy discussions and negotiations as to their terms between Fairfax and various organisations representing newsagents nationally; the contracts were not simply drafted by one party without any input from newsagents or their representatives. Further, the contracts were not for the sole benefit of Mr Boag (and by that it is assumed Fairfax relies on the basic mutuality of the arrangements between itself and Mr Boag, and presumably other newsagents in a similar situation to Mr Boag). 37 Further, in terminating the contracts, Fairfax relied upon its right from 1 February 2004 to give at least 12 months' notice of termination of the contracts, which it did by notice dated 16 December 2005. Fairfax had the right to choose the agents which in its judgment were best suited to further its business interests. There was nothing in the nature of the contract or the relationship which created an indefinite term, or the right for Mr Boag to choose the terms solely to suit his needs or wishes. 38 Similarly Mr Boag did not have the unilateral right to transfer or assign the contracts to third parties, the parties agreed to specific criteria which were to be taken into account for the issue of new contracts to a prospective purchaser upon the sale of the relevant newsagency. 39 The respondent noted that the contracts, by reason of the validly given notice, were to terminate on 18 December 2006 and accordingly an order seeking to restrain the respondent from terminating the contracts could not be made because termination would result, as a matter of law, by reason of the notices given and the agreed extended periods of notice: Birrell v Australian National Airlines Commission (1984) 5 FCR 447 at 457; TAB Agents' Association of NSW v TAB Limited [2003] NSWIRComm 316 at [43] to [59] (and see the Full Bench decision in that case at (2004) 136 IR 45 at [8]); Kenoss Contractors Pty Ltd v Allied Constructions Pty Limited (2001) 104 IR 66. 40 Fairfax also relied heavily upon the delay in the applicant and Mr Boag seeking relief: towards the very end of the contract and the last day of the law term, relief was sought and only because of the necessity of allowing the respondent an opportunity to properly respond to the application it was agreed that the notice be extended to 21 December 2006 and subsequently further extended to 28 December 2006 to enable the Court to deal with the matter. 41 Fairfax also emphasised that the Court should in its general discretion decline to grant relief in circumstances where a lengthy period of notice was given and there was thus ample opportunity for the applicant and/or Mr Boag to approach the Court earlier for appropriate relief; and there was no satisfactory explanation for the serious delay in bringing the application. 42 The respondent also contended that there was no sound basis for granting the relief claimed because: (i) It cannot be seriously argued that 12 months' notice is unfair. (ii) Mr Boag operates a newsagency which sells a range of publications. He has a range of supply contracts from other suppliers. The loss of the contracts do not deprive Mr Boag of his business. (iii) Moreover, the loss of contracts does not deprive Mr Boag of having Fairfax publications for sale in his newsagency. He has been offered a contract to secure that result in December 2005, and again prior to the expiry of the notices. He will not lose the ability to offer relevant publications to the public (compare paragraph 16 of his first Affidavit). (iv) Contrary to what he has stated in his Affidavit of 14 December 2006, namely that the goodwill in the business will be reduced, there is no basis for concluding on an interlocutory stage that if he chooses to sell the business (as he states he intends to do at some future date) that it cannot be offered for sale on the basis that the respondent will grant a suitable prospective purchaser one or more of the contracts previously held by Mr Boag. (v) By retaining the right to offer all relevant publications to the public, and on the basis that a suitable purchaser may well, if it meets the criteria, be able to obtain the relevant contracts, it is difficult to conclude that Mr Boag will not be able to sell his newsagency or that the sale will be in any significant way compromised. (vi) Relief should not be granted to in effect accommodate a sale date which simply suits the Boags (compare paragraph 16 of his first Affidavit). 43 It was also emphasised that damages were an adequate remedy for Mr Boag's claims, if they were made out: there was a firm basis for holding that it was not necessary to grant interlocutory relief (the Court having only a very limited jurisdiction to preserve the subject matter of the litigation) because if a case could ultimately be made out by Mr Boag, and the contract is varied, the Court would be able to grant compensation by payment of money in connection with any contract or arrangement so varied pursuant to s 106(5) of the Act: compare Kenoss Contractors at [38] 44 Thus, Fairfax submitted, that neither the applicant nor Mr Boag had made out a case that the compensation would not be an adequate remedy. Further, it could not be said that on the material presented by Mr Boag that there were sound reasons for concluding that it would not be just ultimately if Mr Boag's relief was confined to the remedy of compensation. Similarly, there was no basis for saying that the Court would be "denuded of its capacity to make effective final orders". 45 The conceptual foundation of the applicant's response to the respondent's approach relied upon the reasoning of Haylen J in Sweeney & Vandeleur Pty Ltd v Angyl (2003) 136 IR 433 at 441 - 447. The applicant submitted that the relevant question as to the scope of the Court's power to grant interlocutory relief in this context was: "is it just in all the circumstances that the plaintiff be confined to his remedy in damages?" (Sweeney at 445 [26]) This was because the Court's broad capacity to re-write contracts and arrangements and to create new rights under s 106 would be stripped of much of its effectiveness if unfair contracts were allowed to be terminated leaving only a power to declare the contract void and to make money orders as compensation: Sweeney at 445 [26] and 446 [29]. 46 The applicant thus submitted that the scope of the Court's power to grant interlocutory relief in relation to making orders under s 106 extended to restraining a party from terminating a contract in circumstances where, unless the order was made, any final order would be rendered less effective or the Court's processes would be thwarted: Selman v Sweet [2003] NSWIRComm 14 at [14]; Kenoss Contractors at [20] and [42] - [43]. Principles to be applied

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47 A feature of the submissions of both parties in the proceedings was to point to the divergence of authority to grant relief such as that sought in the present proceedings. Unsurprisingly the applicant relied upon those authorities (such as Sea Acres Rainforest Centre Pty Ltd v New South Wales (2001) 109 IR 56 at [49] - [50]; Selman v Sweet [2003] NSWIRComm 14 at [14]; Sweeney & Vandeleur Pty Ltd v Angyl (2003) 136 IR 433 at 441 - 447; Western Sydney Area Health Service v Australian Salaried Medical Officers' Federation (NSW) (2004) 138 IR 203 at 209 [30]; and Gough & Gilmour Holdings Pty Ltd v Caterpillar of Australia Ltd (No 9) [2001] NSWIRComm 260) which took a broad view of the Court's authority to grant interlocutory relief of the kind sought in the present proceedings. Similarly unsurprising was the respondent's reliance on those authorities (such as TAB Agents' Association of NSW v TAB Limited [2003] NSWIRComm 316 at [43] to [59] and Kenoss Contractors Pty Ltd v Allied Constructions Pty Limited (2001) 104 IR 66, and also the authorities relied upon in those judgments) which took a narrower or more restrictive view as to the Court's powers in relevant respects. 48 Because of the way in which the submissions were developed it is important to particularly refer to one aspect of the applicant's submissions. This aspect involves reliance upon the judgment of Watson J in Elliott v Royal Motor Yacht Club of New South Wales, Newcastle Branch (1988) 42 IR 35 at 36, which is referred to in Kenoss Contractors at 72 (para [20]). Watson J in that case said (emphasis supplied): What is sought, simply put, is an interlocutory order under s 88F. It is unnecessary to discuss as a matter of power the Mareva injunction cases which turn on the frustration of any proceedings before the Commission if such an order were not made. This, in my view, is a different situation where what the applicant is seeking is an interim order under s 88F(1) varying the contract pending determination of the application finally.

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In my view there is jurisdiction to make such an interim order if a sufficient case is made out so that a preliminary finding can be made that there is unfairness - whereby the Commission is satisfied that there is sufficient foundation for some interim order to be made. 49 I consider that it is also pertinent to refer to those parts of some of the authorities relied upon which seek to reconcile at least some of the divergences in the approaches adopted by first instance judges in this area. In this regard see, for example, Sea Acres at 68 - 71 and Kenoss Contractors at 82. The approach which should be taken in this matter is that the Court should proceed on the basis that there is jurisdiction to make the interlocutory order or orders sought and to factor into account the divergence of opinion (earlier referred to) as an important consideration in dealing with the balance of convenience aspect of the matter. The reasons for taking that course will be set out shortly. 50 However, before specifically doing that, I should indicate the relevance of the approach to be adopted in the grant of interlocutory proceedings and how jurisdictional issues may be factored into the discretionary considerations where relevant. As I observed in Kenoss Contractors (at 75) I do not consider that any different approach is required in respect of jurisdictional issues to the general approach to be adopted to interlocutory interim relief generally: That is, it is necessary for the applicant to show that there is a serious question to be tried and the balance of convenience favours the grant of the relief. Usually any jurisdictional issues are to be dealt with in the first area, although in some cases they may also be relevant to the second: see Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153 - 155, where it was held that in some, albeit rare, cases it will be relevant to assess the strength of a plaintiff's case in dealing with the balance of convenience. 51 The conclusion reached earlier was for the following reasons. First, it is inappropriate to attempt to resolve in a definitive way a major jurisdictional issue as to the power of the Court in proceedings which have to be decided with the urgency that these proceedings need to be dealt with. Second, this is especially so where in some of the cases (particularly Kenoss Contractors) which took a narrower view of the relevant power, some of the cases which took a broader view were distinguished on a particular basis which is not relevant here. For example, in Kenoss Contractors (at 82, para [42]) there was reference to "the only way in which it is presently possible for [Maidment J's approach in Teletech International Pty Ltd v Medical Benefits Fund of Australia Ltd (No 1) (unreported, 28 September 1998)] to be reconciled with that in Gibson [Gibson v Western Sydney Area Health Service [2000] NSWIRComm 13] is where the subject contract is on foot, or has been terminated recently, or perhaps in other circumstances where it might be just and equitable or otherwise available, to treat the contract as if still on foot". 52 Similarly, later in Kenoss Contractors at 82 (para [43]) a similar approach was taken in distinguishing the judgment of Watson J in Elliott v Royal Motor Yacht Club of New South Wales, Newcastle Branch (1988) 42 IR 35 at 36. Again, that case was distinguished on the basis that the approach of Watson J in Elliott depended upon the holding that there may be circumstances where an interim order might be made pursuant to the then applicable provision (at that time s 88F of the Industrial Arbitration Act 1940), "where further unfairness will or may occur, but for the making of the interim order ... Again, the conceptual basis upon which that case has possible relevance to the present would only exist if the contract the subject of the s 106 application was on foot". 53 These considerations lead to the third reason. It is appropriate to approach this matter, at least in a preliminary way as to jurisdiction, on the basis that the contract between the parties is still on foot. Certainly, the contract or arrangement between the parties was on foot at the commencement of proceedings and as Mason J observed in R v Dunphy and ors; Ex parte Maynes and ors (1978) 139 CLR 482 at 495, "[i]n general the order of a court speaks as to the rights of the parties as at the commencement of the proceedings in which the order is made". I consider his Honour's approach is in point here noting however that in R v Dunphy his Honour distinguished that general proposition in the case before him when his Honour held that there were strong reasons why declarations made under s 140 of the then Conciliation and Arbitration Act 1904 (Cth) should be held to stand in a different position. That point of distinction does not seem to me to apply to proceedings under s 106 of the Industrial Relations Act at least in terms of the power to make orders. I consider this results not only from Mason J's observations as to the general situation as to the orders of courts but also from the wide terms of s 106, particularly sub-section (3) thereof, which empowers the Court to declare a contract (as broadly defined by s 105) "wholly or partly void, or varied, either from the commencement of the contract or from some other time". 54 Any doubt as to the contract at issue in these proceedings being relevantly on foot is removed by the agreement of the parties to extend the operation of the contract initially to 21 December and then subsequently to 28 December 2006. In referring to the agreement of the parties to extend the contract I should make clear that the significance of that extension is not so much that it occurred by agreement but the fact that an extension occurred while the contract was on foot. Indeed, if an agreement had not been reached by the parties I have no doubt that the power to make an order in similar terms to the parties' agreement could have been made by the Court as part of the Court's implied power to preserve and protect its process and procedures in respect of proceedings before it. 55 Finally, and for these reasons, it is therefore appropriate to deal with the present application on the basis that there is jurisdiction to make the interlocutory orders sought by the applicant. Because of the approach that I consider should be taken this means that either prayer 1 or the additional prayer 1A (added by amendment) could be made in these proceedings should it otherwise be appropriate for such relief to be granted. Conclusions

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56 The approach appropriate, as earlier noted, is that referred to in Kenoss Contractors at 75 by reference to the approach of Mason ACJ in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148. Having regard to that approach which is conveniently extracted at para [50] above, I should indicate one area of disagreement that I have with the approach of Watson J in Elliott. It will be recalled that his Honour held that there was jurisdiction to make an interim order varying the contract pending a final determination of the application, the jurisdiction to do so depending upon "a sufficient case" being made out "so that a preliminary finding can be made that there is unfairness". It seems that his Honour was referring to "unfairness" in terms of the then s 88F being made out on a prima facie basis. If that is what his Honour intended by those observations, I respectfully disagree with them. It seems to me the test for interlocutory relief is placed at too high a level. It is to be recalled that when Mason ACJ dealt with the Castlemaine Tooheys case, his Honour referred to the controversy at the time as to whether the plaintiff seeking interlocutory relief had to establish a "prima facie case" or merely that there was demonstrated a "serious question to be tried", and his Honour held that it was the latter formulation that was appropriate. I do not consider that there is any basis whereby, when a case is otherwise made out for the making of an interim order varying a contract, any different test should be applied other than the "serious question to be tried" test. 57 There is also another consideration which I raised with the parties during argument, which is also relevant even at this stage of the proceedings. It is the mandate in s 109(1) which requires the Court to "endeavour, by all means it considers appropriate and necessary, to settle a matter under this Division [which includes s 106 proceedings] by conciliation". This provision has a number of consequences for the present stage of these proceedings. First, it serves to confirm the "serious question to be tried" approach as being more appropriate then the "prima facie case" test at the interlocutory stage, since the Court would be most cautious when dealing with applications for interlocutory relief, about making findings which could affect its capacity to settle a proceeding under s 106 by conciliation, accepting that in some cases there may be no alternative but to make findings which could have that effect. 58 Second, it is appropriate to factor the requirement expressed in s 109(1) in considering the balance of convenience particularly where, as in this case, I consider it is finely balanced. 59 I should here deal with two other matters. That is the question of damages as an adequate remedy and the question of delay. As to the former matter, I have considerable doubts as to the correctness of the applicant's contentions in this regard, although I consider it is on firmer ground when it relies on the difficulty of assessment which would follow from any failure to obtain interlocutory relief and the consequent cessation of the contractual arrangements currently between Mr Boag and the respondent. 60 As to the issue of delay, it can be properly found that there has been significant delay on the part of the applicant in bringing these proceedings and that that delay has been largely unexplained. The issue of delay has often been a matter of significant contest in proceedings under s 106 and its statutory predecessors. At one stage there was a view that the doctrine of laches applied in these proceedings but that view was decisively and correctly put to rest by Marks J in Howitt v Retec Limited (No 2) (1995) 60 IR 93 at 99 and following. Certainly as his Honour found subsequently in that case the issue of delay may give rise to the Court considering whether the delay was such that the proceedings before the Court could not be conducted fairly and thus whether and to what extent the power of the Court to either stay, permanently or temporarily, or strike out any process, for example, as an abuse of process, should be exercised. Somewhat hesitantly, I consider that the delay here although of some significance was not such as to deprive the applicant or Mr Boag of the limited interlocutory relief which it is proposed to grant. 61 I reach a similar conclusion on the issue of the adequacy of damages issue. As earlier noted, I am not wholly convinced of the applicant's approach in this regard, except on the issue of assessment of damages. However, the finding made is in my view sufficient to warrant the limited interlocutory relief that will be granted. I do not consider the findings made on these two issues and on the jurisdictional question tell against the balance of convenience as to the limited relief later referred to. 62 Before dealing finally with the issue of balance of convenience, I should briefly return to the approach in Castlemaine Tooheys. In terms of that approach and having regard to the finding earlier made on jurisdiction, I should state that I consider that the applicant has demonstrated that there is a serious question to be tried in the proceedings and that the determination of the present application will, as foreshadowed, depend on the issue of balance of convenience. 63 In that context, there was a significant debate between the parties as to the extent of prejudice that could be visited on the respondent by the granting of interlocutory relief. My preliminary finding on that issue is that, at present and in the short term, there is not a great deal of prejudice arising to the respondent from the grant of interlocutory relief but that the extent of detriment it may suffer from the grant of such relief may well, having regard to considerations to which I shall turn shortly, accumulate to tip the balance of convenience in the respondent's favour. The matters which I consider relevant in this respect include the concern (which I find is understandable and made out) that the respondent wishes not only to have what it considers more suitable personnel "in charge of" the relevant territory but to have personnel in that territory who are more likely to be able to assist it to "grow" its business there. Having regard to the present time of the year, I do not consider that there will be significant detriment to the respondent by interim orders being made for a short time but such detriment would very likely accrue or increase if orders were made with the duration sought by the applicant. 64 Therefore, having regard to the significance of s 109(1), as earlier discussed, the appropriate interlocutory order to be made is that orders similar to those sought by the applicant should be made but limited in their duration to apply only until the matter has been adequately conciliated pursuant to s 109 of the Industrial Relations Act. This of course would be on the basis that the conciliation of the matter would be greatly expedited such that it could be heard either by a duty judge during the current law vacation or by a judge in the early part of the new Law Term. When I refer to "adequately conciliated", this would involve a value judgment by the judge conducting the conciliation that both parties have genuinely attempted to conciliate the matter and that a certificate of unsuccessful conciliation would not be issued unless and until the relevant value judgment had been formed. Orders

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