Noeline Hawkins v Sydney Fish Market Pty Ltd

THE INDUSTRIAL RELATIONS COMISSION OF NEW SOUTH WALES IN COURT SESSION

NOELINE HAWKINS v SYDNEY FISH MARKET PTY LTD Application under s 106 of the Industrial Relations act 1996

1 The applicant Noeline Hawkins has commenced proceedings against the respondent Sydney Fish Market Pty Ltd seeking relief under s 106 of the Industrial Relations Act 1996 ("the Act"). The factual background to the proceedings can be stated shortly. The applicant submitted a proposal to the respondent on or about 17 September 1998 that she be given the right to operate a mobile coffee cart at the Sydney fish markets. This proposal was accepted by the respondent. However, because of some litigation between the respondent and the operator of a retail outlet over the sale of coffee by another operator which resulted in litigation the applicant did not commence to trade until the Anzac Day weekend in April 1999. She said that between the time that her proposal was accepted and that she commenced to trade she had conversations with Mr Skepper an employee, and Mr Walters an agent of the respondent during which it was said that the respondent would not let anyone else operate from a mobile cart for at least three years. 2 The applicant executed a licence agreement with the respondent on 12 April 1999 which gave her the right to occupy a particular area of the Sydney fish markets during specified hours and on specified days for the permitted use of operating a mobile coffee cart selling tea, coffee and hot chocolate together with certain complementary items upon payment of a licence fee of $60 per month. The licence expired on 23 October 1999. There was no right of renewal, but merely a holding over provision on a monthly basis after expiry of the licence. The applicant outlaid approximately $30,000 to set up her mobile cart business. 3 The applicant continued to operate after expiry of the licence and entered into a further agreement in identical terms for the period 1 May 2000 which expired on 31 October 2000. 4 From about July 2000 the applicant sought to negotiate a continuation of her relationship with the respondent. Through solicitors she proposed a lease for a period of five years with a five year option. The respondent declined to negotiate further with the applicant for the continued operation of her mobile coffee cart from the same area of the fish markets, having apparently negotiated with a new operator for a higher licence fee. The applicant was offered an alternative location within the fish markets which was unacceptable to her because of the lack of pedestrian traffic in that particular area and because also the new proposed location would be hidden by an adjacent Streets Ice Cream outlet. 5 The applicant filed a summons seeking relief under s 106 of the Act on 18 October 2000 seeking inter alia an order varying the agreement or arrangement by which she operated the mobile coffee cart by extending it to 30 April 2005. The applicant also filed a notice of motion seeking injunctive relief, and in particular the following orders:

1. An order that the Respondent, its officers, employees and agents be restrained from the removal of the Applicant from the licenced space occupied by her pursuant to the Licence Agreement entered into by the Applicant and the Respondent on or about the 1st May 2000 pending the final determination of these proceedings or until further Order.
2. An Order that the Respondent, its officers, employees and agents be restrained from taking any step or doing anything to prevent the Applicant continuing to work in her business on the licenced space occupied by her pursuant to the Licence Agreement entered into by the Applicant and the Respondent on or about 1st May 2000 pending the final determination of these proceedings or until further Order. 6 After an initial hearing of the notice of motion on 19 October 2000 the matter came on for hearing on 26 October 2000. On that occasion Mr G Hatcher of counsel who appeared for the respondent submitted that firstly, this Court had no power to grant the relief sought which was in the nature of injunctive relief and secondly, this Court had no jurisdiction to deal with the matter. 7 I shall deal with each of these issues in turn:

POWER 8 In essence Mr Hatcher submitted that this Court's power to grant interlocutory relief in the nature sought by the applicant was limited to that which prevented an abuse of this Court's processes. Mr Hatcher relied substantially on the judgment of Peterson J in this Court in Gibson v Western Sydney Area Health Service (2000) NSWIRComm 13 (6 March 2000). I shall return to his Honour's judgment shortly. 9 This Court is constituted a superior court of record by s 152 of the Act. It has limited jurisdiction, that jurisdiction circumscribed by the provisions of the Act. However it is well established that this Court has certain implied powers for certain purposes, the basis for which and the extent of which it is now necessary to discuss. 10 A convenient starting point is the judgment of the High Court of Australia in Jackson v Sterling Industries Ltd (1987) 162 CLR 612. Those proceedings considered the power of the Federal Court of Australia to make orders in the nature of Mareva injunctions. The Federal Court of Australia is also a superior court of record limited by statute. Relevantly s 23 of the Federal Court of Australia Act provided that the "the Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate." It was held by the High Court that assuming that the Federal Court had jurisdiction to deal with a matter, s 23 enabled the Federal Court to grant a Mareva injunction. However Mason CJ, Wilson, Deane, Dawson and Gaudron JJ all expressed the opinion that the Court would have had power to grant a Mareva injunction assuming jurisdiction to deal with the underlying matter even in the absence of s 23. 11 Deane J described the general power to grant a Mareva injunction as "an established part of the armoury of a court of law and equity to prevent the abuse or frustration of its process in relation to matters coming within its jurisdiction." (at 623). Although in dissent only as to the form of the order made in those proceedings, Gaudron J made some general observations about the inherent "jurisdiction" or power of a court to control abuse of its process. Her Honour quoted with approval an observation of Lord Morris in the House of Lords in Connelly v Director of Public Prosecutions to the effect that "there can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction." ((1964) AC at 1301). Her Honour continued: "This power has not, traditionally, been restricted to defined and closed categories ….but may be exercised where the administration of justice demands it." (at 639). 12 In CSR Ltd v Sigma Insurance Australia Ltd(1996-1997) 189 CLR 345 the High Court of Australia considered the power of a court to stay proceedings in the context of concurrent proceedings available in another jurisdiction. In a joint judgment Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ said: "….the power to stay proceedings on grounds of forum non conveniens is an aspect of the inherent or implied power which, in the absence of some statutory provision to the same effect, every court must have to prevent its own processes being used to bring about injustice. …. The counterpart of a court's power to prevent its processes being abused is its power to protect the integrity of those processes once set in motion …. And in some cases, it is that counterpart power of protection that authorises the grant of anti-suit injunctions. Thus, for example, if "an estate is being administered …. or a petition in bankruptcy has been presented …. or winding up proceedings have been commenced …. an injunction (may be) granted to restrain a person from seeking, by foreign proceedings, to obtain the sole benefit of certain foreign assets". (at 391). 13 In Cardile v LED Builders Pty Ltd (1999) HCA 18 (6 May 1999) Gaudron, McHugh, Gummow and Callinan JJ in a joint judgment in the High Court of Australia emphasised the distinction between Mareva orders and injunctive relief traditionally granted in courts of equity. Their Honours said: "In these various ways, the courts developed doctrines and remedies, outside the injunction as understood in courts of equity, to protect the integrity of its processes once set in motion. The Mareva order for the preservation of assets should be seen as a further development. ….There is no harm in the use of the term Mareva to identify that development, provided the source of the remedy is kept in view when considering the form of the remedy in each particular case. An anterial question will be whether there is another interlocutory remedy amongst those considered above which will be suitable to meet the case in hand but less extensive in scope." (at para 40). Their Honours emphasised that the doctrinal basis of a Mareva order is the inherent power of a court to prevent the abuse or frustration of a court's process, and to ensure the effective exercise of the jurisdiction of the court. (see esp. discussion at para.41). 14 In a separate judgment delivered in the same proceedings Kirby J discussed the general jurisdictional power of a court to protect its processes. His Honour said: 110. Powers of courts : There is a further consideration which extends even more widely the powers of the Federal Court to make orders "appropriate" in relation to matters before it. This is the general principle that statutory provisions, conferring jurisdiction or power on a court, are not construed as subject to any limitation which is not strictly required by their language and purpose ( Knight v F P Special Assets Ltd (1992) 174 CLR 178 at 191, 205; cf Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [No 3] (1998) 72 ALJR 873 at 900 per Gaudron J; 153 ALR 643 at 678-679). Where a court is endowed with a particular jurisdiction, it enjoys the powers necessary to enable it to act effectively within that jurisdiction. Its powers are not ordinarily construed as restricted to defined and closed categories ( Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 639 per Gaudron J). This is because of the infinite variety of circumstances which may come before a court and require "appropriate" orders ( Mercedes Benz AG v Leiduck [1996] AC 284 at 308 per Lord Nicholls of Birkenhead (diss)). This well established general principle provides a warning against attempts by judges to state closed categories derived from the history of Chancery courts or from recent court decisions in their jurisdiction. To do this would amount to an impermissible gloss on the broad language by which the Parliament of Australia has conferred the power. It would, moreover, shackle the implications which follow from the very nature of the body receiving that power.

111. The attempts of courts and text-writers to fashion immutable "principles" to harness broad statutory powers, such as those conferred by s 23 of the Act, may be understandable from an historical perspective considered from pre-Mareva days. It may be explicable as an attempt to afford useful rules of thumb. But statutory courts should never stray far from their statutory mandate. Nor should they forget the general principles which repeatedly emphasise the broad scope of the power conferred on a court and the need to avoid rigid, restrictive categories. In a particular case, such rigidities could prevent the proper exercise of the court's powers, as the Parliament has provided.

112. Avoiding rigid rules : Courts exercising equitable jurisdiction - or statutory jurisdiction analogous to that of courts of equity - need to be especially cautious before adopting rigid rules. In the English case Soinco SACI v Novokuznetsk Aluminium Plant [1998] QB 406, Colman J expressed this thought in terms which I would adopt. Faced with submissions akin to those advanced by the appellants in this case, his Honour said: "Such ... would involve treating the rules of the Court of Chancery before the Judicature Acts as carved in stone and as expressing immutable principles incapable of development beyond 1873 unless changed by Parliament. This must be wrong in principle. English law has traditionally developed by means of identifying broad but established juridical principles which have been extended incrementally to new factual situations when the interests of justice required such extension. The development of the law relating to Mareva injunctions amply demonstrates that this developing process applies to equitable remedies as to any other." (at 420) 113. There are many statements to similar effect. Several such statements have been made in the course of English decisions on Mareva injunctions as they followed their discernible trend away from the strictures expressed in Siskina v Distos Compania Naviera [1979] AC 210 in respect of orders affecting non-parties. Thus in Mercantile Group (Europe) AG v Aiyela [1994] QB 366, Sir Thomas Bingham MR remarked, in response to a suggestion that the English Court had no jurisdiction to make a Mareva order in that case, that if it were so: "the armoury of powers available to the court to ensure the effective enforcement of its orders would ... be seriously deficient. That is in itself a ground for inferring the likely existence of such powers, since it would be surprising if the court lacked power to control wilful evasion of its orders by a judgment debtor acting through even innocent third parties." (at 377) Such words apply with even greater force where the "third parties" do not appear "innocent".

114. The particular reasons given in disposing of one claim for an asset preservation order should not be converted into universal principles of invariable application. The case law on this topic is a field of single instances, cultivated in a garden of interlocutory orders, nurtured in a wilderness of broad discretions. Unlike many English gardens, this one has a measure of order stamped upon it, brought by analogy from the equitable rules developed for general injunctive relief. But excessive order and rigid rules would endanger the relief in question and be alien to its essential character."

15 In discussing the rationale for the making of Mareva type orders Kirby J commented: 117.To the extent that rules, devised in earlier times, were invoked to require the result that a litigant was powerless to protect itself from being out-manoeuvred by its opponent, they would be liable to derision. To suggest that such rules may deprive a court of power "in relation to" a "matter" before it, because the order contemplated was not capable of being "appropriate", would seem most unconvincing. At least it would be so when the second purpose of such orders is kept in mind, namely to "prevent a defendant from frustrating enforcement of a judgment when obtained ( Mercedes Benz AG v Leiduck [1996] AC 284 at 307)."

16 In Gibson, the applicant had been appointed a visiting medical officer of the respondent. Some twenty years later he was advised that after the introduction of a new appointments procedure his application for reappointment to his position within a particular hospital had been unsuccessful. He commenced proceedings under s 106 of the Act and sought interlocutory relief restraining the respondent from terminating his appointment pending the final determination of the proceedings. Peterson J reviewed a number of earlier authorities including Jackson v Sterling Industries to which I have referred. His Honour also referred in particular to the judgment of Hungerford J in Darvall v NZ Securities Ltd (1990) 39 IR 215 and to his Honour's own judgment in Maharaj v 7-Eleven Stores Pty Ltd (unrep. 4 April 1997 IRC 97/1150), as well as other judgments delivered by Judges of this Court and its predecessors. 17 During the course of his Honour's judgment in Gibson, Peterson J said: One may, it seems to me, readily distinguish cases such as Dickins and Wheeler where jurisdiction to make a Mareva injunction was found to exist on the basis, consistent with the reasoning in Darvall (ibid at 50; at 227-228) and as stated in Wheeler (supra at 557; at 384), that an interim injunction may be made as "an order designed to prevent an apprehended action on the part of the respondents which, if not prevented, would or may frustrate the due process of the court by denying a successful litigant the right to receive the amount of orders which the court considers just and reasonable in all the circumstances of the case". In the case before me, the applicants have a clear remedy if they succeed in their substantive application for compensation by way of appropriate money orders in relation to the franchise fee, goodwill and loss of business opportunity if the Court were to grant either the primary relief of a variation to the franchise agreement or the alternative relief of avoiding it from its commencement. Therefore, the final orders which may be made in this matter would not be frustrated nor put at naught if the interim relief be declined. The motion for interlocutory injunctions must be dismissed for want of jurisdiction. 18 In Gibson, Peterson J declined to make the orders sought because of a lack of power to do so, the orders not being clearly directed to preserving the applicant's position pending the determination by the Court of any final orders. This was because absent the granting of interlocutory relief, the applicant in Gibson still had the right to claim compensation, as indeed, did the applicants in Maharaj. 19 In my opinion the orders for interlocutory relief sought by the applicant in these proceedings are not designed to prevent the processes of this Court being used to bring about any injustice nor are they designed to protect the integrity of the processes of this Court. They are directed more to the substantive relief which is sought by the applicant in terms of the substantive proceedings brought under s 106. It is a trite observation that apart from the power to vary or avoid any relevant contract pursuant to s 106, the only tangible relief which can be granted to the applicant is the making of an order as to the payment of money in an amount which is considered just in the circumstances of the proceedings. Accordingly, the applicant's substantive relief is limited to the awarding of monetary compensation. The granting of the relief sought by the applicant in these interlocutory proceedings which is in the nature of injunctive relief does not impact upon the ability of the applicant to claim compensation, nor the ability of this Court to award compensation assuming an ultimate finding of unfairness and the making of consequential orders varying or avoiding the relevant contract. In the circumstances the applicant may either continue to negotiate with the respondent with respect to the alternative site offered or may decline to further such negotiations, in either event her entitlement to claim compensation under s 106(5) of the Act will be preserved should she be successful in the substantive proceedings. 20 Adopting, and applying the approach of Peterson J in Gibson, with which I agree, I find that this Court does not have the requisite power to grant the relief in the nature of injunctive relief sought by the applicant in the notice of motion. Accordingly I would propose to dismiss the notice of motion.

JURISDICTION 21 It does not become necessary for me to deal with this issue in the context of these interlocutory proceedings. As I perceive that jurisdiction may again be agitated by the respondent with respect of the substantive proceedings, and as questions may arise as to the appropriate time at which any such argument should conveniently be agitated, I propose to defer dealing with the respective submissions of the parties concerning this issue. 22 I propose also to defer considering the question of costs pending submissions by the parties.

ORDERS

1. The notice of motion filed 18 October 2000 is dismissed.
2. Costs are reserved.
3. Liberty to apply with respect to costs and with respect to any further matters to be dealt with in connection with the management of the proceedings.

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