Robberds & Anor v Turner Franchising and Allied Services Pty Ltd & Ors

Robberds & Anor v Turner Franchising and Allied Services Pty Ltd & Ors - [2004] NSWIRComm 157 - NSWIRComm 2004 case summary — Zoe

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RESPONDENT ON MOTION Lendlease Real Estate Investments Ltd GPT Management Ltd FILE NUMBER: 4921 of 2003 CORAM: Staff J CATCHWORDS : Unfair contract - Summons under s 106 of Industrial Relations Act - Notice of motion by respondents for joinder of additional respondents - Deed of release and lease between applicants and additional respondents not challenged - Applicants oppose notice of motion - Public policy interests - s 108 of Industrial Relations Act - Preliminary or threshold jurisdictional issue - Whether "appropriate stage" reached - Motion dismissed - Costs LEGISLATION CITED : Industrial Relations Act 1996 Retail Leases Act 1994 Brown v Rezitis (1970) 127 CLR 157 Cukeric v David Jones Limited (1997) 78 IR 430 Dr Payne v The University of Sydney [2000] NSWIRComm 102 Dollfus Mieg Et Compagnie SA v Bank of England [1951] Ch 33 Eslick v Exben Pty Ltd [2001] NSWIRComm 68 Euphoric Pty Limited v Ryledar Pty Limited (2002) 117 IR 1 Heath Group Australasia Pty Limited v Pengly (2001) 110 IR 376 Henry v Global Switch Australia Pty Ltd & Anor [2003] NSWIRComm 307 Hyde v Energy Australia (1999) 92 IR 409 CASES CITED : King v Cake it Away Pty Ltd & Ors [2002] NSWIRComm 45 Metrocall Inc v Electronic Tracking Systems Pty Ltd (No 2) (2000) 102 IR 309 Mitchforce v Industrial Relations Commission of New South Wales (2003) 124 IR 79 Nagle v Tilburg (T/as WD & LJ Nagle & Sons) (1993) 51 IR 8 Paviour-Smith v National Mutual Life Association of Australasia Ltd (1999) 91 IR 8 Robert Rolles and Ors v Donald Scott Surgicals Pty Limited and Anor Fisher P, Cahill VP, Bauer J, (unreported matter No 1948 of 1986, 19/2/1998) Victor Lahoud & Ors v Joseph Lahoud & Anor [2002] NSWIRComm 182 Virtue v New South Wales Department of Education and Training (1999) 92 IR 428 Wong v Cheng T/as Artist Production (1999) 91 IR 369 William John Lyons v Caltex Australia Petroleum Pty Limited [2001] NSWIRComm 11 HEARING DATES: 05/14/2004 DATE OF JUDGMENT: 06/04/2004

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23 Mr P Elias, solicitor, appeared for the first and second respondents. His submissions had five prime elements: · Firstly, it is necessary to have the additional respondents before the Commission to determine all of the relevant facts and, if the Commission considers the contract became unfair, who was responsible for that unfairness and the relative apportionment of any liability. · Secondly, Mr Elias relied on an affidavit of Clive Turner sworn on 24 October 2003, filed in support of the notice of motion. Mr Elias submitted that Mr Turner's evidence unequivocally demonstrates that the additional respondents have a sufficient connection and an involvement in the contract or arrangement the subject of the proceedings and were culpably involved in the circumstances giving rise to the unfairness. · Thirdly, it was not a relevant issue in the joinder application whether the applicants sought to challenge the deed of release they entered into with the additional respondents. Mr Elias relied on Eslick v Exben Pty Ltd [2001] NSWIRComm 68; Wong v Cheng T/as Artist Production (1999) 91 IR 369 and William John Lyons v Caltex Australia Petroleum Pty Limited [2001] NSWIRComm 11 to support the principle that the relevant issue is whether it is in the interests of justice that the additional respondents be added to the proceedings and whether it is necessary to have the additional respondents before the Court in order to properly resolve the issues raised in the summons for relief. · Fourthly, Mr Elias submitted that the first and second respondents did not necessarily seek to overturn the deed of release but rather to have the Commission examine the deed as a collateral arrangement or contract and to assess any relevant culpability of the respondents to the proceedings, including the additional respondents, thereby giving it the ability to properly assess the apportionment of any money orders made between the respondents. Mr Elias relied on Cukeric v David Jones Limited (1997) 78 IR 430 and Paviour-Smith v National Mutual Life Association of Australasia Ltd (1999) 91 IR 8 in which the Commission found an unfair release and declared it void. · Fifthly, Mr Elias submitted that the lessors were culpably involved in the circumstances giving rise to the unfairness set out in the summons and that their joinder is necessary in order to properly resolve and determine the issues raised in the summons. Mr Elias summarised his position this way: We don't seek to attack the deed of release that was executed between the Robberds and the lessors. We don't seek to attack the lease itself. What we seek to attack is the conduct of the lessors which led to the formation of the franchise arrangement of which the lease was a collateral document and the ultimate objective of having the lessors joined to these proceedings is that if an adverse order was made against the Turners, then we would seek a further order by the Commission on the facts of this case that the lessors indemnify the Turners against any adverse order made by the Commission, and that's clear, the clear purpose of this notice of motion, and it's not a novel application ...

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63 The relevant principles established by this Court and its predecessors were recently restated by Wright J President in Virtue v New South Wales Department of Education and Training (1999) 92 IR 428 at 447. These principles, as summarised by his Honour are as follows: (1) The discretion of a court to determine a case at an early stage, when appropriate, has been repeatedly accepted. (2) As a general rule it is desirable that an objection to jurisdiction be determined as early as circumstances will conveniently admit so that the tribunal does not embark on a hearing which it lacks authority to conduct. The course of a court entertaining a challenge to jurisdiction in a preliminary or threshold way is often a sensible one where a party has a substantial threshold argument which, if it succeeds, will knock out the claim and save the costs and inconvenience that attend a protracted hearing of proceedings on the merits. (3) However, a further general proposition is that all issues arising should be dealt with in the substantive proceedings unless the basis for a challenge, either on jurisdictional grounds, or for lack of a reasonable cause of action, be clearly demonstrated. (4) Threshold relief of the kind sought here must be conserved to a clear case where it is plain that the invocation of the jurisdiction impugned is wholly misconceived or, upon analysis, lacks an arguable legal foundation. (5) Necessarily, refusal of relief at the threshold will not finally determine that jurisdiction exists for any order which the Court might make between the parties. This is because, to secure relief, the claimants must demonstrate that no order could be made which would be within jurisdiction. The resulting burden is a heavy one. (6) Accordingly, whilst it is desirable for a case to be determined at an early stage it is only open to do so at the appropriate stage of the proceedings. That is, where the facts, either established by evidence or plainly agreed in terms, enable the Court to determine what the contract or arrangement is or, at least, the parameters of the contract or arrangement. In other words, unless the facts are sufficiently established to enable the Court to be satisfied it has the necessary material to reach a clear and final decision on the question then the appropriate stage has not been reached for such a determination to be made. (7) Similarly, the jurisdiction to terminate an action summarily for want of a cause of action is to be sparingly employed and ought not to be used save where the lack of the cause of action was clearly demonstrated.

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