18 Although the written submissions for the applicants on the Notice of Motion seemed to suggest otherwise, at the hearing it was made clear that the applicants do not argue that there is some broad and general power to be implied or inherent to the Court as a superior court of record to enable it to grant an injunction on a basis similar to the Equity Division of the Supreme Court. In the oral submissions it was confirmed that the applicants seek no more than the protection of the court's jurisdiction to grant any relief available under s 106 of the Act on the application of principles primarily set out in Darvall v NZ Securities Ltd. (1990) 21 NSWLR 36 and in Kenoss Contractors Pty. Ltd v Allied Constructions Pty Ltd (2001) 104 IR 66.
19 The applicants also emphasise the inadequacy of financial compensation for what they describe as "the irreparable damage to their business and personal financial situation and future prospects and for financial loss that will, to a significant extent, be virtually impossible to measure …" (par 10 of the applicants' outline of submissions). They say that the Court would be involved in the always difficult task of seeking to assess appropriate compensation on a "loss of opportunity/future economic loss" basis involving, inter alia, a consideration as to how long the relationship would or might have survived if the contracts had contained the grievance handling and dispute resolution mechanisms now sought by the applicants. In relation to difficulties associated with quantification, the applicants cited Cukeric v David Jones (1996) 70 IR 26 and David Jones v Cukeric (1997) 78 IR 430 and the judgment in Bowker and anor v Prophency Technologies Pty Ltd (unreported, NSWIRComm, 26 May 1999). This submission was supported by the affidavit evidence of the third applicant, Mr David Kennett.
20 The respondent points out that the orders sought by the applicant presume the existence of a current and effective lease. Counsel for the respondent nevertheless accepts that an order restraining the Service from further proceeding with the Notice to Quit would be an effective order if the legal requirements for such an order are satisfied. In its written submission the respondent argues that the power to grant interlocutory or interim relief in proceedings initiated under s 106 is circumscribed, relying on the judgment of the Wright J, President in Kenoss. It also submits that there is a broad factual similarity between the present case and other decided cases in the Court namely Gibson v Western Sydney Area Health Service ((2000) NSW IRComm 13, Peterson J), Maharaj v 7 Eleven Stores Pty. Ltd (unreported, Peterson J, 4 April 1997), Cameron v Unilever Australia Ltd (unreported, Cahill V-P, 3 June 1997) and Maiden v New Zealand Natural Pty Ltd unreported, Hungerford J, 20 June 1997).
21 In its oral submissions the respondent asserts that after the issuing of the Notice to Quit the applicants were in unlawful possession of the premises. It says that at the centre of the applicants' case is the alleged representations made on behalf of the respondent which would be denied. For the purposes of the Notice of Motion the respondent filed an affidavit indicating that there had been an investigation of the alleged representations but those representations would be denied. The respondent accepts that at least one person identified as being responsible for the alleged representations on behalf of the respondent had not submitted an affidavit for the purposes of the hearing of the Notice of Motion. No detail was provided in the affidavit apart from an assertion based upon unsourced information and belief that the representations would be denied.
22 In particular, the respondent relies upon the judgment of the President in Kenoss and notes that under the authorities cited in that case there is no automatic right in s 106 proceedings for a party to have a particular state of affairs maintained as some sort of status quo. Section 106 does not create any relevant right such as would attract the application of principles applicable in the exercise of the equitable jurisdiction of the Supreme Court. On the respondent's approach the primary relief sought is monetary compensation and in such circumstances there is no justification for any interlocutory relief restraining the respondent from giving effect to its Notice to Quit.
23 In relation to the applicants' reliance on the judgment of Maidment J in TeleTech the respondent submits that the case was wrongly decided especially in respect of the consideration to be given to the interests of third parties. In this particular case, however, the respondent gives an undertaking that it will continue the employment of the seven part-time employees at the Centre on a temporary basis, being for no less than four months during which period the operational needs of the Centre will be reviewed. There was a possibility of ongoing employment for some or all of those employees after the review. The respondent suggests that this undertaking effectively eliminates as a consideration the interests of third parties as dealt with in TeleTech. In clarification of this submission it said that none of the employees would find themselves unemployed without notice; there will be no change for four months and at the end of the review the employees would know whether they would be maintained or not.
24 Counsel for the respondent accepts as a fair description of the situation that over the past seven years, there had been ongoing negotiation but despite the best efforts of all concerned they had not been able to reach agreement on the terms of a new lease.
25 The applicants take issue with the respondent's description that they are in unlawful possession of the property. What is relevant for the purposes of considering whether there is an arguable case is how the respondent had acquired its lawful rights and whether it should be the beneficiary of its own wrong doing or its own unfairness in respect of the applicants; the Court needs to go behind the respondent's assertion of its legal rights and ask how it acquired those rights and if they had been acquired unfairly or unconscionably. That is the relevant consideration.
WHAT IS THE EXTENT OF THE IMPLIED POWER OF THE COURT TO MAKE AN ORDER IN THE NATURE OF AN INTERLOCUTARY INJUCTION?
26 In Kenoss the President, Wright J, drew together the various judgments of this Court and its predecessors concerning the jurisdiction and the limits upon the granting of interlocutory injunctions in unfair contract cases.
27 Before embarking upon a consideration of that judgment it is helpful to consider what was said by the members of the High Court in Jackson v Sterling Industries Ltd (1987) 162 CLR 612. In that case the Federal Court had ordered the respondent to pay money into Court as security for the satisfaction of any judgment that may be entered against the respondent in an application made under the Trade Practices Act. The Federal Court Act contained s 23 which permitted the Court to make orders of such kind, including interlocutory orders, and to issue, or direct the issue of writs of such kind, as the Court thought appropriate. The various judgments deal with differences between superior courts of unlimited jurisdiction and superior courts of limited jurisdiction conferred by statute. The Federal Court of Australia is a statutory court of limited jurisdiction as is the Industrial Relations Commission of New South Wales in Court Session. The judgments accepted that in relation to statutory courts it was more appropriate to speak of "implied" powers to grant orders to protect the jurisdiction exercised by that Court rather than to refer to such powers as being "inherent". The debate was also informed by the growth of the Mareva injunction and the controversy about its jurisdictional basis.
28 In their joint judgment, Wilson and Dawson JJ, speaking of the rationale for the extension of the Mareva injunction, stated that it was to be found in the notion that the purpose of the Mareva injunction was to prevent the abuse of the process of the Court by the frustration of its remedies. The joint judgment went on to note that, if the power of a Court to grant injunctions of the Mareva type and associated relief were to be found in its capacity to prevent the abuse of its process, then it was as much to be found in its inherent power as in any statutory power to grant such relief as is "just or convenient" or "appropriate". In their Honours' view the declaration of the Federal Court as a superior court was to be given effect as far as it could be and the implied power carried with it all that was necessary for the proper functioning of that Court, although it did not extend its jurisdiction beyond that which was vested in it (at 619).
29 Deane J noted that initially it was thought that the power of the English High Court of Justice to grant a Mareva injunction was based on a statutory provision similar to s 23 of the Federal Court Act. His Honour went on to state:
That general power should, however, now be accepted 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. That being so, the power to grant such relief in relation to a matter in which the Federal Court has jurisdiction is comprehended by the express grant to that Court by Section 23 of the Federal Court of Australia Act, in relation to such matters, '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'. Indeed, even in the absence of the provisions of Section 23, the Federal Court would have possessed power to make such orders in relation to the matters properly before it, as an incident of the general grant to it as a superior court of law and equity of the jurisdiction to deal with such matters. In that regard, I agree with the following comments of Bowen CJ in his judgment of the present matter:
In relation to a statutory court such as the Federal Court it is wise to avoid the use of the words "inherent jurisdiction". Nevertheless a statutory court which is expressly given certain jurisdiction and powers must exercise that jurisdiction and those powers. In doing so it must be taken to be given by implication whatever jurisdictional power may be necessary for the exercise of those expressly conferred. The implied power for example to prevent abuse of its process is similar to, if not identical with, inherent power.
However, the present problem relates not so much to the existence in the Federal Court of a general incidental power to grant injunctive relief to prevent a defendant disposing of specific assets so as to render nugatory a judgment obtained against him in proceedings within the jurisdiction of the Federal Court. It relates rather to the extent of that general power, and in particular, to whether the actual order which the Federal Court has purported to make in the present case come within it (at 623 - 624).
30 In separate judgments both Toohey J and Gaudron J spoke of the developing circumstances in which the Mareva injunction had been granted and extended. Toohey J noted that the factual situation arising in a given case may not previously have been considered by the courts but notions such as the Mareva injunction were inevitably developed in response to particular circumstances and as their "doctrinal basis" received further definition (at 663). Although their Honours were in dissent on the availability of the particular order made by the Federal Court there under consideration, their comments as to the evolutionary development of the Mareva injunction do not seem to have been questioned by other members of the Court.
31 In dealing with the nature and purpose of the inherent power of a Court, Gaudron J noted that this was explained in Cocker v Tempest (1841) 7 MW.502 Gaudron J at pp 503 - 504 by Alderson B in the following terms:
The power of each Court over its own process is unlimited; it is a power incident to all Courts, inferior as well as superior; were it not so, the Court would be obliged to sit still and see its own process abused for the purpose of injustice … The power must be used equitably; but if it be made out that the process of the Court is used against good faith, the Court ought to interfere to prevent it, for the purpose of administering justice.