Solution 6 Holdings Limited & Ors v Industrial Relations Commission of NSW & Ors

(i) A declaration that the Agreement is either (a) an arrangement under which Mr Fish performed work for Solution 6 in an industry, or (b) an arrangement collateral to an arrangement or contract pursuant to which Mr Fish performed work in an industry. (ii) A declaration that the Agreement operated in an unfair, harsh and unconscionable manner because: (a) it "permitted" Solution 6 Holdings to breach cl 4 by failing to provide the outstanding $500,000 of the total purchase price. (b) officers of the Solution 6 company "were permitted to represent" that a floor price mechanism was unnecessary on the basis of certain facts with the consequence that the Agreement did not include such a mechanism with specified adverse financial consequences for Mr Fish and Nisha Nominees. (c) the total value received for the sale of FishTech was significantly lower than its value and was not sufficient for fair consideration.

(iii) Orders that the Agreement be varied to provide payment as if a floor price of $9.75 was included or, alternatively, compensation in a certain identified amount or as determined by the Commission. 19 What the Opponents seek to achieve with respect to the Share Sale Agreement is the inclusion of an effective "floor price" of $9.75 for each of the purchase shares. This was a result which the Opponents sought, but did not achieve, at the time the Share Sale Agreement was negotiated. Alternatively, they seek the difference between the value actually received by Nisha for the sale of FishTech and an offer of US$12 million or, alternatively, a valuation of US$8 million; each of which had been made reasonably contemporaneously with the arrangement eventually entered with Solution 6 Holdings. 20 As noted above, the relief encompasses an assertion of unfairness on the basis that the Share Sale Agreement "permitted" Solution 6 Holdings to breach the Agreement by failing to pay the outstanding $500,000 of the purchase price. This claim is based on the decision of the Commission in Reich v Client Server Professionals of Australia Pty Ltd (2000) 49 NSWLR 551 which holds that a contract can be found to be unfair because of conduct which is in breach of contract. I left open the validity of this proposition in Mitchforce Pty Ltd v Industrial Relations Commission of NSW (2003) 57 NSWLR 212 at [93]. I note that the Claimants made no separate submission with respect to this claim and it is unnecessary to consider the matter.

The Share Sale Agreement 21 In the Share Sale Agreement, Nisha Nominees is the "Seller", Solution 6 Holdings is the "Buyer", FishTech & Partners is the "Company" and Mr Fish is the "Guarantor". 22 The following clauses of the Agreement are of particular relevance to the issues that arise in the present proceedings: "2 Conditions for Completion 2.1 Conditions (a) Nicholas Fish: Completion will not proceed unless the Buyer is satisfied that before or simultaneously with Completion, Nick Fish has been released from employment with the Company and has entered into an employment contract with the Buyer, on terms acceptable to the Buyer (including at no cost to the Company); … (c) Other conditions: Completion will not proceed unless the Buyer, acting reasonably and in good faith, is satisfied as at the Completion Date that: (1) Key Employees: Boris Dogin and at least three of the five Employees listed in schedule 13 have not resigned or indicated an intention not to continue employment with the Company after Completion. … 2.2(a) The Seller must use its best endeavours to satisfy the conditions for Completion set out in clause 2.1. (b) The Seller must use its best endeavours to ensure that the Company does all things necessary to ensure that the conditions set out in clause 2.1 are satisfied. … 2.4(a) The conditions for Completion in clause 2.1, other than clause 2.1(b) may be waived only by the Buyer. … 4. Purchase Price 4.1 Amount The price payable for the Shares is $19 million subject to adjustment under clause 4.3 and holdback under clause 4.6, and which is payable under clauses 4.2 and 4.4. 4.2 Payment of Purchase price (a) On the Completion Date, the Buyer must pay $18.5 million to the Seller on account of the Purchase Price. (b) On the Completion Date, the Seller must subscribe for, and the Buyer must issue 1,897,436 shares in the capital of the Buyer at the issue price of $9.75 per share and the Seller must pay the subscription moneys to the Buyer. (c) The amounts payable by the Buyer and the Seller under clauses 4.2(a) and (b) shall be set off against one another. 4.3 Adjustment (a) An audit of the Company's accounts at Completion (Completion Accounts) will be carried out in accordance with clause 4.5 to determine whether any adjustments to the Purchase Price will be made under clause 4.3(b). (b) The Purchase Price will be reduced on a dollar for dollar basis, to the extent that the aggregate amount of net assets of the Company as disclosed in the Accounts is less than the aggregate amount of net assets of the Company as disclosed in the audited Completion Accounts. 4.4 Balance of purchase price (a) Subject to clauses 4.5 and 4.6, on the Business Day first occurring 3 months after the Completion Date (Relevant Date), the Buyer must pay the remainder of the Purchase Price (being $500,000 less any adjustments under clause 4.3 and 4.6) to the Seller. (b) Subject to clause 4.5 and 4.6, on the Relevant Date, the Seller must subscribe for, and the Buyer must issue, that number of Shares in the capital of the Buyer as equals the amount payable under clause 4.4(a) divided by $9.75 (being the subscription price per share), and the Seller must pay the subscription moneys to the Buyer. (c) The amounts payable by the Buyer and the Seller under clauses 4.4(a) and (b) shall be set off against one another. (d) In the event the adjustment to the Purchase Price under clause 4.3(b) is in excess of $500,000, the amount in excess must be paid by the Seller to the Buyer within 7 days of the Buyer notifying the Seller in writing of the amount in excess of $500,000 owed to the Buyer. Payment may be in cash or in Sol 6 Shares (at $9.75 per share). 4.5 Audit of Completion Accounts (a) The audit must be carried out in accordance with the Australian Accounting Standards (and the parties agree the particular standards listed in the Disclosure Letter under the heading DD1 and DD2 shall apply) notwithstanding the matters disclosed in the Disclosure Letter. (b) The Buyer must prepare and procure the audit of the Completion Accounts by the Buyer's Auditor and procure the calculation of the adjustments under clause 4.3 as soon as practicable, and in any event within 3 months after Completion, by providing to the Seller, in a reasonable level of detail, copies of the Completion Audit, audit certificate, the calculation of the adjustments sought and the accounting basis for seeking those adjustments. (c) If any adjustment sought by the Buyer has not been accepted by the Seller and is not waived by the Buyer within 14 days of the Buyer giving notice of the adjustments sought pursuant to clause 4.5(b): (1) the dispute regarding the remaining adjustment or adjustments sought shall be referred as soon as practicable to the President of the Institute of Chartered Accountants in Australia or his nominee for determination of the appropriate accounting practice. Any party may make the referral under this clause; (2) the Buyer is entitled to retain an amount equal to the total unresolved adjustments from that part of the Remaining Price, pending resolution of the dispute; (d) A determination under clause 4.5(c) is final and binding on the parties. (e) The parties must bear equally the costs of the referral and determination under clause 4.5(c). (f) In making a determination under clause 4.5(c), the President of the Institute of Chartered Accountants in Australia or his nominee act as an expert, not as an arbitrator. 4.6 Warranty claim holdback (a) If, on the Relevant Date, the Buyer has made a claim against the Seller under this agreement (including for breach of Warranty) and that claim has not been resolved, the Buyer may withhold from any amount payable under clause 4.4(a) a reasonable estimate of the amount of that claim. (b) Any amount withheld by the Buyer under clause 4.4(a), less any amount due to the Buyer when the relevant claim is finally determined or agreed upon, must be paid to the Seller (and shares in the Buyer issued in accordance with clause 4.4(b)) once the claim the subject of the withholding has been agreed or finally determined. (c) The withholding of any money under this clause 4.6 is without prejudice to any other rights the Buyer may have against the Seller under this Agreement. … 8. Competition 8.1 Undertakings … (b) Subject to clause 8.1(c), the Seller and Guarantor [Nick Fish] must not do, and must ensure that none of their Related Corporations do, any of the following without first obtaining the written consent of the Buyer: (1) directly or indirectly carry on (whether alone or in partnership or joint venture with anyone else) or otherwise be concerned with or interested in (whether as trustee, principal, agent, shareholder, unit holder or in any other capacity) any business similar to or competitive with the Business: (A) in Australia for 2 years after Completion; (B) in Australia for 1 year after Completion; (C) in Sydney, Melbourne and Brisbane for 2 years after Completion; (D) in Sydney, Melbourne and Brisbane for 1 year after Completion; (2) solicit or persuade any person or corporation which is a customer or client of the Buyer or the Company, or who was in the 12 month period before the Completion Date a customer or client of or in respect of the Business, to cease doing business with the Buyer or the Company or reduce the amount of business which the customer or the client would normally do in respect of the Business: (A) for 2 years after Completion; (B) for 1 year after Completion; (3) accept from a customer or client referred to in clause 8.1(b)(2) any business of the kind ordinarily forming part of the Business: (A) for 2 years after Completion; (B) for 1 year after Completion; (4) at any time use or disclose to any third party any trade secrets, product information or confidential information of the Business which is not generally known or available in the market place or which but for a breach of this clause 8.1(b)(4) would not be generally known or available in the market place; or (5) at any time induce or attempt to induce any person who is at the time of Completion or who later becomes an employee of the Buyer or any Related Corporation of the Buyer in the Business to terminate his or her employment with the Buyer or any Related Corporation of the Buyer. (c) If the Guarantor's employment with the Buyer's Group is terminated by a member of the Buyer's Group, the restraint referred to in clause 8.1(b)(1), (2) and (3) will cease to apply from that date of termination, unless termination results from any of the following events: (1) conduct by the Guarantor that constitutes: (A) serious misconduct; or (B) poor performance, or (2) termination by the Guarantor. In which case the restraint referred to in clause 8.1(b)(1), (2) and (3) will continue to apply despite termination of the Guarantor's employment. … 14.1 Employees On and from the date of this agreement the Seller and Guarantor must use their best endeavours to ensure that all Employees and contractors/consultants on contract with the Company remain in the employ of or contracted to the Company. … 15.9 Further assurances Each party must do all things necessary to give full effect to this agreement and the transactions contemplated by this agreement. … 15.11 Entire agreement (a) This agreement embodies the entire agreement between the parties with respect to the subject matter of this agreement and supersedes any prior negotiation, arrangement, understanding or agreement with respect to the subject matter or any term of this agreement. (b) Any statement, representation, term, warranty, condition, promise or undertaking made, given or agreed to in any prior negotiation, arrangement or agreement has no effect except to the extent expressly set out or incorporated by reference in this agreement." 23 I note that Mr Fish is not one of the Employees listed in Schedule 13. I also note that cl 14.1 has no application to Mr Fish. That clause requires employees to remain in the employ of the Company. By cl 2.1(a) Mr Fish is to cease employment with the Company and become employed by the Buyer. The Share Sale Agreement annexes a list of employees including Mr Fish as Managing Director. This is said to be a list for purposes of Schedules 5 and 6, respectively encompassing service contracts and employees. The schedule is in a form and contains information which indicates that it was originally prepared for another purpose. The inclusion of Mr Fish in this list cannot contradict the clear intent of cl 2.1(a) that he cease to be employed by the Company.

The Statutory Power 24 The jurisdiction invoked by the Opponents in the Commission is that conferred by s106 of the Act which provides: "106(1) The Commission may make an order declaring wholly or partly void, or varying, any contract whereby a person performs work in any industry if the Commission finds that the contract is an unfair contract. (2) The Commission may find that it was an unfair contract at the time it was entered into or that it subsequently became an unfair contract because of any conduct of the parties, any variation of the contract or any other reason. (3) A contract may be declared wholly or partly void, or varied, either from the commencement of the contract or from some other time. (4) In considering whether a contract is unfair because it is against the public interest, the matters to which the Commission is to have regard must include the effect that the contract, or a series of such contracts, has had, or may have, on any system of apprenticeship and other methods of providing a sufficient and trained labour force. (5) In making an order under this section, the Commission may make such order as to the payment of money in connection with any contract declared wholly or partly void, or varied, as the Commission considers just in the circumstances of the case. (6) In making an order under this section, the Commission must take into account whether or not the applicant (or person on behalf of whom the application is made) took any action to mitigate loss." 25 Section 105 defines the word "contract" in the following way: "Contract means any contract or arrangement, or any related condition or collateral arrangement, but does not include an industrial instrument." 26 The critical jurisdictional fact is the identification of a contract, etc. "whereby a person performs work in any industry" in the sense determined by the High Court in Stevenson v Barham (1977) 136 CLR 190 at 200, 201 and 202. I refer to, but do not repeat, my discussion of this test in Mitchforce Pty Ltd v Industrial Relations Commission of NSW at [4]-[14]. 27 The critical passage in the joint judgment in Stevenson v Barham is at 201: "… if the contract is one which leads directly to a person working in any industry it has the requisite industrial character - it is a contract 'whereby a person performs work in any industry'. This is the relevant jurisdictional fact which needs to be established." 28 The issue that arises in the present case is what kind of relationship can be said to lead "directly" to a person working in an industry. 29 The industrial context of the legislation is of assistance in determining whether or not the connection between the contract, as defined, and the performance of work in a particular case can be characterised as sufficiently "direct". I made this observation in Mitchforce at [15]. My judgment was interpreted by the Full Bench of the Industrial Commission as suggesting, or reinstating, an "industrial colour or flavour" test as an element required to establish jurisdiction and, in this regard, as constituting a gloss on the test from Stevenson v Barham quoted above. (See Mitchforce Pty Ltd v Starkey (No 2) [2003] NSWIR Comm 458 esp at [61], [73]-[76], [104].) Mr J West QC submitted that their Honours erred in so characterising my reasoning. Mr West is correct. 30 I did not intend by anything I said in Mitchforce to qualify the Stevenson v Barham test. It is the fact that the contract is one which leads directly to a person working in an industry that gives it what, in the passage quoted above, Mason and Jacobs JJ described as "the requisite industrial character". 31 As I pointed out in Mitchforce at [6] there is sometimes difficulty in determining when a contract may be said to lead "directly" to the performance of work and, referring to the joint judgment in Stevenson v Barham, I said "the emphasis their Honours gave to the scope and purpose of the legislative scheme" is "of some assistance" in determining this issue. I referred to p 200 of the joint judgment where their Honours set out a passage from a judgment in which their Honours had joined a few years before, when they were both members of this Court, in Ex parte VG Haulage Services Pty Limited; Re Industrial Commission of New South Wales [1972] 2 NSWLR 81 at 88, where Jacobs JA, with whom Mason JA agreed, said: "… the transaction must directly lead to work in the industry - that is what gives the industrial colour or flavour - " 32 After quoting the full extract in which this passage appears in their joint judgment in Stevenson v Barham, their Honours explained it (at 200) in the following way: "… what was being asserted was that so long as the transaction leads directly to work in any industry it has the necessary 'industrial colour or flavour'." 33 Their Honours' references to "industrial colour and flavour" in both VG Haulage and Stevenson v Barham, as with the reference to "the requisite industrial character" in their authoritative formulation of the test, manifests the significance to be attached to the scope and purpose of the legislative scheme when construing words in an Act, relevantly the word "whereby". 34 There is an industrial context for s106 and its predecessor provisions. I do not doubt that so long as a transaction can be said to lead directly to work in a industry, the Commission has jurisdiction. Nevertheless, in my opinion, the industrial context is of assistance when determining whether or not the relationship between a transaction and work in a industry can be said to be "direct". I intended to say no more in Mitchforce. However, as I mentioned in that case at [15], the word to be construed is "whereby". 35 The present case raises issues similar to those considered by this Court in Production Spray Painting & Panel Beating Pty Ltd v Newnham (1991) 27 NSWLR 644 and Majik Markets Pty Ltd v Brake and Service Centre Drummoyne Pty Ltd (1992) 28 NSWLR 443. I have set out relevant extracts from the judgments in those cases in Mitchforce at [17]-[22] and it is unnecessary to repeat them. Two paraphrases of the word "directly" and, therefore, of the word "whereby" were offered in those cases. Mahoney JA posed the question in terms of "whether the purpose of the transaction was that relevant work be performed" (Production Spray Painting at 649G and Majik Markets at 459A). Priestley and Handley JJA posed the question in terms of whether: "The impugned contract, etc … must directly, that is under or pursuant to its terms, provide for the performance of work in an industry". Their Honours contrasted such a situation with a contract which leads to the performance of the work in an industry "only indirectly or in a remote or consequential manner" (Production Spray Painting at 657D). Their Honours answered the question, on the facts of the particular case, as to whether or not the work was "required" by the agreement (Production Spray Painting at 657E-F). In Majik Markets Handley JA, with whom Kirby P agreed, also posed the question in terms of whether the relevant agreement "requires" a person to perform work (at 465A).

Issues Arising on s106 36 As noted above the Amended Summons asserts that the Share Sale Agreement was itself an arrangement under which work was performed "because it required FishTech [and Nisha Nominees] to procure the employment of specified employees, [including Mr Fish] to provide services to" Solution 6 Holdings. In submissions in this Court, the Opponents went beyond the particular words of this pleading to rely on a range of provisions in the Share Sale Agreement as the foundation for a submission that the Agreement satisfied the statutory test in s106(1). This Court would not prohibit proceedings where a simple amendment concerning the legal effect of facts which are common ground would cure any defect. Accordingly, it is appropriate to proceed on the broader basis argued in this Court. 37 Mr J West QC, in his submissions, relied on the following aspects of the Share Sale Agreement:

(i) Mr Fish was a party to the Agreement. He was described as the "Guarantor" but his obligations under the Agreement go beyond that designation.

(ii) Completion of the Agreement was expressly pre-conditioned upon: · Mr Fish entering into an employment contract with Solution 6 Holdings (cl 2.1(a)). · Key employees not having resigned or have expressed an intention to do so (cl 2.1(c)). · Nisha Nominees using its best endeavours to ensure that the conditions in cl 2.1(a) and (c) are satisfied (cl 2.2).

(iii) Mr Fish and Nisha Nominees were obliged to use their best endeavours to ensure that all contractors and employees remained in the employ of or contracted to the Company (cl 14.1). It was submitted that this clause extended to Mr Fish, but for the reasons I have set out in par [23] above, on the proper construction of the Agreement, that is not so.

(iv) Nisha Nominees and Mr Fish were subject to restraint of trade and disclosure provisions, in cll 8.1, 8.2, 8.4 and 8.6.

(v) Mr Fish provided a continuing guarantee and indemnity in respect of the performance of the obligations of Nisha Nominees (cl 13).

(vi) The further assurances provision in cl 15.9 refers to "transactions contemplated by this agreement". The employment agreement referred to in cl 2.1(a), it was submitted, was such a "transaction". 38 Mr F Douglas QC, who appeared for the Claimants, submitted that the Share Sale Agreement was not one which directly led to the performance of work. It did so only indirectly or in a remote or consequential manner. At its highest, he submitted, the Share Sale Agreement could only be seen as an agreement that indirectly led to the performance of work. The effect of cl 2.1(a), which provided that an employment agreement was a condition precedent to completion, did not, he submitted, have the requisite direct quality. He noted that it was inserted for the benefit of Solution 6 Holdings as "Buyer", as only the Buyer could waive it. (See cl 2.4(a).) 39 Mr Douglas QC submitted that, although the Share Sale Agreement contemplated the performance of work by Mr Fish and by others, that was not its purpose. The purpose was for Solution 6 to acquire the FishTech business. He relied on my observation in Mitchforce at [49] that mere 'contemplation' that work will be done is not enough. 40 Alternatively, in the Amended Summons, as quoted in par [14] above the Opponents assert, in the alternative, that the Share Sale Agreement was an arrangement collateral to one under which work was performed by reason of the matters there set out. Mr West QC submitted that the Share Sale Agreement was an "arrangement" that was "collateral" to, most relevantly, the Employment Agreement and, perhaps, the other contracts of employment. 41 Mr Douglas submitted that the word "collateral" in s105 should be confined to a "collateral contract" as determined in the law of contracts. The words "collateral contract" do not appear in s105. In any event, this submission would prefer form over substance which is not permissible in this context. (See Brown v Rezitis (1970) 122 CLR 157 at 164; Mitchforce at [180] per Handley JA.) Indeed the breadth of the definition of contract in s105 itself makes this clear, particularly the use on two occasions of the word "arrangement". The words "collateral arrangement", as with the words "related condition", are intended to bear their natural and ordinary meaning, rather than any technical meaning. 42 Although it is not pleaded, the Opponents propounded a further jurisdictional basis in this Court. They submitted that there was a broader "arrangement", of which the Share Sale Agreement was part, and which included other matters, notably the Employment Agreement. As noted above, this Court would not prohibit proceedings where a matter could be raised by amendment to assert that a different legal effect arises from facts that are common ground. 43 Mr West QC submitted that there was an intimate connection between the consideration of $19 million satisfied by the issue of shares and the continued employment of Mr Fish. Each was an essential element in an overall arrangement. In addition to the terms of the Share Sale Agreement, the Opponents relied on the oral evidence of the pre-contractual negotiations, to establish the existence of such an arrangement. This is set out in summary form in pars [9] and [10] above. This evidence, if accepted, would establish the proposition that Mr Fish's continued employment was regarded as an important aspect of the business from the point of view of Solution 6 Holdings. However, the relevant representations appear to be fully reflected in the final documentation. 44 The overall arrangement, Mr West QC submitted, went beyond simply the sale of the business with an expectation that Mr Fish and other employees would work in the business under new management. He submitted that the Share Sale Agreement together with other arrangements relating to the employment of Mr Fish constituted a recognition that the engagement of Mr Fish was crucial to the value of the business being purchased and fundamental to the capacity of its new owners to exploit that. This objective extended, he submitted, to other key employees and, perhaps, to all employees. The significance of the employment of Mr Fish was manifest in the fact that the execution of the new employment contract by him was a condition precedent to completion of the Agreement. 45 The evidence of Mr Fish, tendered in this Court, does suggest that the prior negotiations could be said to constitute an arrangement with a number of component parts which included the Share Sale Agreement and the Employment Agreement. 46 Mr F Douglas QC submitted that the power of the court to declare void or to vary a contract, as defined, must be confined to that part of a contract, arrangement, related condition or collateral arrangement, whereby a person performs work in an industry. Although the High Court once proceeded on a contrary assumption, it was clearly just that. There is no authority to the contrary. (See Gosper v Sawyer (1985) 160 CLR 548 at 560.) Mr J West QC submitted that once there is in existence a contract, etc. and orders may be made, then such orders may be directed to any part of the contract or arrangement, irrespective of whether that part can be said to be a contract, etc., whereby work is performed in an industry.

Is the Application Premature? 47 Mr West QC submitted that the application to this Court was premature. This Court should not intervene as it could not be satisfied that the evidence to be adduced in the Commission would not establish one of the above bases for jurisdiction or, indeed, another basis. He submitted that the Commission was not a court of strict pleading and the Summons instituting the proceedings does not necessarily represent the final factual position. 48 Part 3 r 18A of the Industrial Relations Commission Rules states: "18A(1) An application to the Commission to exercise the powers conferred on it by section 106 must be in Form 12A and must: (a) specify in summary the matters of fact and law which form the basis of the application, but not the evidence by which those facts are to be proved; and (b) contain sufficient information to allow the Commission to carry out its duty to conciliate under s109 by a succinct summary." 49 In addition to repeating the terms of r18A(1), Form 12A requires the Summons to identify the orders sought. 50 The Amended Summons complies with these requirements. The Summons accordingly contains a "summary" of the facts "which form the basis of the application". The Claimants, for purposes of these proceedings, accept that summary. That is sufficient for the Claimants to establish the factual foundation of the relief sought in this Court. The Opponents were given the opportunity, in accordance with this Court's usual practice, to place further facts before this Court and, indeed, did so. 51 If in the light of all of the evidence before this Court, primarily the Amended Summons itself, it appears that that part challenged here is beyond the Commission's jurisdiction, this Court may exercise its supervisory jurisdiction.

Is the Requisite Jurisdictional Fact Established? 52 As noted above, the Applicants in the Commission, the Opponents in this Court, rely on three alternative bases for bringing the Share Sale Agreement within s106. It is first submitted that the Agreement itself is a contract "whereby work is performed in an industry". Alternatively, it is said the Share Sale Agreement is "collateral" to a contract, etc. whereby work is performed in an industry. Finally, it is submitted that there is a pre-existing broader arrangement, of which both the Share Sale Agreement and the Employment Agreement are part, and that this overall arrangement is a contract, within the meaning of s105, "whereby work is performed in any industry". 53 In my opinion, with respect to each of the three approaches, the submission should be rejected. In each case the relationship between the contract, etc. and the performance of work in an industry is indirect or consequential, rather than direct. Further, the relief sought with respect to the Share Sale Agreement goes beyond the Commission's power to declare void or vary the contract, etc. 54 In the course of his submissions Mr Douglas QC relied on my identification in Mitchforce at [13] of two elements which I derived from the judgment of Jacobs JA in VG Haulage at 88. That passage was: "It seems to me that the legislature was concerned to empower the Industrial Tribunals … to examine contracts and arrangements which led directly to the employment of persons and the performance of work in any industry, not simply because the contract or arrangement in a commercial sense involves the provision of goods and services, with a consequent performance of work in an industry, but rather because the impugned agreement or arrangement itself directly envisages the employment of a person or persons in industry and has a recognizable impact upon the conditions of that employment, and, whether or not it envisages that a contracting party will perform the work, discloses a purpose that by the adoption of the arrangement the industrial objectives of the legislation will be more or less defeated." 55 On this basis, I identified three elements as constituting circumstances, which his Honour described as a contract or arrangement "which led directly to the employment of persons and the performance of work in any industry". These were: "(i) The contract itself 'directly envisages' performance of work.

(ii) The contract has a 'recognisable impact on the conditions of that employment' and 'work'.

(iii) A purpose that would defeat the industrial objectives of the legislation is discernible." 56 I noted in Mitchforce at [14] that (iii) could no longer be maintained, but (i) and (ii) were consistent with the later decision in Stevenson v Barham. (See also Mitchforce at [194] per Handley JA.) Mr Douglas QC relied on these observations. 57 My discussion of these matters was not intended to put forward an alternative test to the test of a "direct" relationship between the contract and the performance of the work propounded in the joint judgment of Stevenson v Barham set out above. The terminology of VG Haulage is of use, however, in understanding what is meant by the word "directly". Where it can properly be said that a contract, etc. both "directly envisages" the performance of work and has a "recognisable impact on the conditions of that work", then the conclusion will readily be drawn that the contract, etc. "directly" leads to the performance of work in an industry. In VG Haulage Jacobs JA contrasted a situation of which that could be said, with a situation where there is a contract or arrangement that "involves the provision of goods and services, with a consequent performance of work in an industry". Mere 'consequential' performance, his Honour suggested, is insufficient. 58 Although it is not an alternative test, I find it difficult to conceive of a contract, etc. which can be said to directly lead to the performance of work unless the contract, etc. both envisages the performance of work and has an impact upon the conditions of such performance. It may well be that these are minimum conditions for the conclusion of "directness" to be drawn. 59 In my opinion, the Share Sale Agreement is to be characterised, and characterised only, as a contract for the purchase and sale of a business. It contains provisions dealing with the continuation of existing employment relations and, in one case, for the creation of a new relationship equivalent to the pre-existing relationship, i.e. the transfer of Mr Fish as a senior executive from the operating company to the new holding company. However, it cannot, in my opinion, be said of any of the provisions of this Agreement upon which the Opponents rely, whether individually or for their combined effect, that they lead to the performance of work in an industry in a manner that is 'direct'. It cannot be said that the Share Sale Agreement "directly envisages" the performance of work or has "recognisable impact on the conditions of" that performance (to use the VG Haulage test). Furthermore, it cannot be said that that performance is a purpose of the Share Sale Agreement. Nor can it be said that it provides for the performance of work under or pursuant to its terms (to use the two tests propounded in Production Spray Painting). Nothing in the Share Sale Agreement requires anyone to perform work (to use a formulation from Production Spray Painting and Majik Markets). It envisages the continuation of or, in one case, the creation of an employment relationship, but it leads to the performance of work only in an indirect or remote or consequential manner. 60 Clause 2.1(a) is a condition of completion. It states that completion will not occur unless Mr Fish has been released from employment with FishTech and Partners and has entered into an employment contract with Solution 6 Holdings. However, that clause does not lead to the performance of work. It may, unless waived by Solution 6 Holdings, lead to non-completion of the contract for the purchase and sale of shares. It does not lead in any direct sense to the performance of work in an industry. It is the Employment Agreement envisaged by cl 2.1(a) that is the agreement which leads directly to the performance of work in an industry by Mr Fish. 61 The further condition precedent in cl 2.1(c), expressed in terms of Solution 6 Holdings being satisfied that certain key employees have not resigned or indicated an intention not to continue employment with FishTech, is in no different position to cl 2.1(a). This is also a provision that can only be waived by Solution 6 Holdings. Its operative effect cannot be said to lead directly to work in an industry. It envisages the continuation of pre-existing employment arrangements and, in my opinion, does not even have an indirect effect that can be characterised in terms of 'leading to a person working in an industry'. 62 The obligation in cl 14.1 on the Opponents to use their best endeavours to ensure that employees and contractors remain in the employ of, or contracted to, the company is in no different position. It represents the continuation of an existing state of affairs rather than in any sense 'leading to performance of work in an industry', let alone doing so 'directly'. 63 Even if the further assurances clause (i.e. cl 15.9) can extend to the Employment Agreement as a "transaction", with respect to which Mr Fish and Nisha Nominees are obliged to act, the relationship between that clause and the performance of work is indirect. It is mediated through the "transaction" being the Employment Agreement. 64 In my opinion the Share Sale Agreement is not, of itself, a contract within s106(1) of the Act. 65 As to the third way in which the case was put, the overall arrangement suggested in Mr Fish's oral evidence cannot be said to lead directly to the performance of work in an industry. It only leads to the performance of work indirectly or as a consequential matter. This occurs through the medium of the particular contracts or arrangements, such as the Employment Agreement, in the case of Mr Fish, and other contracts in the case of other employees and contractors. 66 The "collateral arrangement" alternative is also, in my opinion, inapplicable. The s105 definition distinguishes between a "contract" and an "arrangement". The Share Sale Agreement is an enforceable contract. It is not an "arrangement" and cannot, therefore, be a "collateral arrangement". 67 It is also clear that the Share Sale Agreement, even if regarded as a "collateral arrangement", does not lead, for the reasons already given, to the performance of work in an industry. Mr West QC submitted that the s106 power to void or vary a "collateral arrangement" can be exercised even though the relationship said to be an "arrangement" does not lead to the performance of work or, it appears, though it has no effect on the conditions of work or causes any other impingement on the work relationship. 68 A relevant line of authority in the Commission is directed to whether the words "whereby work is performed in any industry" qualify each of the preceding words or are confined to "contract or arrangement". (See In re Becker and Harry M. Miller Attractions Pty Ltd (No 2) [1972] AR (NSW) 298 at 308; Gray v Rentokil Pty Ltd (unreported, Industrial Court of NSW, Bauer J, 2 April 1992) at 10-11; BNY Australia v James (1992) 40 IR 1 at 43; Bartolacci v Permanent Custodians Limited (1992) 44 IR 388 at 397-398; Bartolacci v Permanent Custodians Limited (No 2) (1992) 94 IR 122 at 125-126; Howitt v Retec Limited (1992) 45 IR 245 at 255; Harris v Hammon (1992) 53 IR 235 at 240-241; Grover v NSW Abalone Divers Co-operative Society Limited (1995) 60 IR 342 at 351; Klein v Adler (unreported, Industrial Relations Commission of NSW, Schmidt J, 21 November 1996) at 29ff; Carter v NSW Rugby League Limited (1997) 78 IR 368 at 390-391; Bell v Macquarie Bank Limited (No 4) (1999) 93 IR 191 at 206; Cash Converters Pty Ltd v Yildiz (1999) 94 IR 474 at 476; Euphoric Pty Ltd v Ryledar Pty Ltd (2002) 117 IR 1 at 15-21; Strathfield Group Limited v Hall (2002) 121 IR 158 at 168; AOS Group Australia Pty Ltd (in liq) v Arrogante [2004] NSW IRComm 80 at [14]-[29] 69 What these cases suggest is that s106 should be construed as if it read: "The Commission may make an order declaring wholly or partly void, or varying, any contract or arrangement whereby a person performs work in any industry or any related condition or collateral arrangement if the Commission finds that the contract or arrangement or any related condition or collateral arrangement is an unfair contract or arrangement or an unfair related condition or collateral arrangement." 70 In the two predecessor provisions of s106 - s88F of the Industrial Arbitration Act 1940 and s275 of the Industrial Relations Act 1991 - the references to "contract or arrangement or any (related) condition or collateral arrangement" were fully stated on both of the first two occasions that the word "contract" appears in s106(1), i.e. before the reference to "unfair". Each section also contained in its operative provision what appears in s105 as the definition of unfair contract. The incorporation of these references in a separate definition section made the operative section easier to read. It was "a mechanical device to save repetition" (Mutual Acceptance Co Limited v Federal Commissioner of Taxation (1944) 69 CLR 389 at 398 per Rich J). There is no suggestion that any substantive change was intended. The construction issue now before the Court was present before the relevant words were transposed into a definition section. 71 The original concern appears to have been to ensure that all incidents of the employment arrangement were caught by the equivalent section to s106, e.g. that a superannuation policy was a "collateral arrangement". (Gray v Rentokil Pty Ltd relied on by Hungerford J in Bartolacci v Permanent Custodians Limited.) I have no doubt that the entire remuneration package for a contract or arrangement "whereby work is performed in an industry" is within the Commission's jurisdiction. This, however, is because of the link identified in Gosper v Sawyer at 561: "The Commission has clear power … to avoid or vary a term of that contract which requires the employee to become a member of a pension scheme established under a trust …" 72 It is simply unnecessary to vary the trust of an existing superannuation scheme in order to vary, and to replace by another superannuation arrangement, the provision which requires membership of a particular scheme. 73 Once jurisdiction is established, I have no doubt that the Commission can void or vary any aspect of a contract or arrangement which is closely related to the performance of work. In the usual case all aspects of the remuneration package will be within the scope of the contract or arrangement "whereby work is performed in an industry", even if different aspects are contained in different documents. 74 The principal theme in the line of authority to which I have referred above is the application of the presumption against surplusage. As the joint judgment put it in Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355 at 382: "a court construing a statutory provision must strive to give meaning to every word of the provision". 75 There are, however, many occasions on which that cannot be done. (See, e.g. Brisbane City Council v Attorney General (Qld) (1908) 5 CLR 695 at 720; Hill v William Hill (Park Lane) Ltd [1949] AC 530 at 546-547.) Often "this presumption or rule of construction is of limited application". (Chu Kheng Lim v Minister for Immigration (1992) 172 CLR 1 at 13.) 76 The definition of contract in s105 bears on its face a legislative concern to prevent evasion by subterfuge and legal tricks of the authority of the Commission to regulate the terms and conditions of work in an industry. That terminology chosen for such a purpose should overlap and prove superfluous, is not surprising. 77 It may be the case that a "relevant condition" or a "collateral arrangement" will rarely, if ever, be found to lead to work in an industry where the "contract or arrangement" to which the condition is "related" or the arrangement is "collateral" does not do so. However, the prospect that lawyers may find ways to ensure that a "contract" or "arrangement" does not do so by means, for example, of having multiple corporations involved in various aspects of a relationship, may have warranted an abundance of caution on the part of the draftsperson. 78 I cannot, however, accept the submission based on this line of authority that, if the Commission is not restricted to varying contracts which of themselves lead to the performance of work, s106 entitles it to vary or declare void any contract or arrangement related or collateral, however tenuously or indirectly, to a contract or arrangement which does so. 79 The conclusion of the Full Bench of the Commission that s106 has conferred on the Commission "a major commercial jurisdiction exercised in circumstances frequently having little to do with the industrial arbitration and similar litigation normally encountered by industrial tribunals" goes too far. (Rolles v Donald Scott Surgical Pty Ltd (unreported, Industrial Relations Commission of NSW, Fisher P, Cahill VP and Bauer J, 19 February 1998).) 80 This approach disengages s106 from the scope and purpose of the legislative scheme within which it is found. That is inconsistent with the contemporary approach to statutory interpretation. The power to void or vary is confined to aspects of a contract, as defined, which are closely related to the performance of work. 81 The identification of precisely what the Commission is empowered to void or vary must be determined in accordance with principles of statutory interpretation. In contemporary Australian jurisprudence, a purposive approach to interpretation is to be adopted, not a narrow literalism. That approach is expressed in a joint judgment of Brennan CJ, Dawson, Toohey and Gummow JJ in CIC Insurance Limited v Bankstown Football Club Limited (1995) 187 CLR 384. (See also the joint judgment of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority at [69]), and the joint judgment of McHugh ACJ, Gummow and Hayne JJ in Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 78 ALJR 585 at [11].) The Courts no longer "make a fortress out of the dictionary" Cabell v Markham 148 F 2d 737 (1945) at 739 per Learned Hand J. 82 The CIC Insurance judgment (at 408) said: "… [T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance , not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous . In particular as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd [(1986) 6 NSWLR 363 at 388], if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent." [Emphasis added] 83 Section 106 must be read and understood in an industrial context for the reasons I set out in Mitchforce at [6]-[17]. In my opinion, the power to declare void or vary a contract, etc. under s106(1) extends only to such aspects of it as closely relate to the performance of work in an industry. It does appear that litigants before the Commission have proceeded on the basis of a literal interpretation of the power in s106. 84 A significant part of the context in which s106 falls to be construed is the Act in which it appears and the functions of and composition of the Commission which is to exercise the power. The focus of attention is work. The overall context of an act will not always require an independent, complete and unambiguously expressed power to be read down. (See, e.g. K & S Lake City Freighters Pty Ltd v Gordon & Gotch Limited (1985) 157 CLR 309.) However, in the present case, unlike K & S Lake City Freighters, the limitation is expressed in the very section conferring the power. 85 The word "work", of course, is found in s106(1) itself, in the phrase "whereby a person performs work in any industry". This focus is consistent with the whole of the legislative scheme, notably the objects clause in s3 of the Act, and with other provisions in the Part of the Act under consideration:

· In exercising the power, the one matter to which the Commission is obliged to have regard is the effect on apprenticeship (s106(4)). · The reference to 'performance of work in an industry' is repeated in the power to make further orders of a protective character in s107(1), (c) and (d). · The persons who may apply for orders under s106 and s107 include industrial organisations (s108). 86 The definition of industry in s7 incorporates as part of the definition a reference to "work". If that definition were to be read into s106(1) in a literal fashion there would be an element of circularity: "The Commission may make an order declaring wholly or partly void, or varying, any contract whereby a person performs work in any trade, manufacture, business, project or occupation in which persons work …" 87 The very circularity emphasises the scope and purpose of the legislative scheme within which s106 is found. A purposive construction of the power to declare void or to vary would limit that power to aspects of the contract or arrangement, or related condition or collateral arrangement, which relate in some reasonably direct manner to the performance of work. 88 As Griffith CJ said in Nolan v Clifford (1904) 1 CLR 429 at 444: "It is always necessary in dealing with any law that alters the common law, and especially where the common law rights of the liberty of the subject or relating to property are concerned, to consider what was the previous law, and what were the apparent reasons for the alterations made …" 89 The "apparent reasons" for the "alterations" made, by giving the Commission the power to rewrite contracts, were confined to matters relating to the performance of work. 90 I realise that the judgment of Mason J in K & S Lake City Freighters was a dissenting judgment. However, his Honour's approach to statutory interpretation, particularly his emphasis (at 315) on the need to take context into account in the first instance and not only after detecting ambiguity, "especially in the case of general words", is the origin of subsequent High Court authority culminating in the passage from CIC Insurance quoted above. 91 K & S Lake City Freighters concerned a section (s133) which prohibited contractual exclusion of liability for negligence. The issue was whether or not the section was confined to claims for personal injury or extended to contracts for carriage of goods. The approach of Mason J is particularly appropriate to a case, such as the present, where the limitation to 'performance of work' is found in the very power to be construed. His Honour (at 318) said: "Notwithstanding the general terms in which it is expressed, s. 133 must therefore be considered in the context of a part of the Act which is devoted in its essential elements exclusively to the establishment of a compulsory insurance scheme to provide compensation for death and bodily injury. With due respect to those who think otherwise, that context demands that the section be read more narrowly than if it had stood alone so that it does not extend to include contracts relating to claims in respect of loss of property. After all, the object of a provision against contracting out is to secure to the class of persons intended to be protected the benefits which the statute seeks to make available. In view of the absence of any similar compulsory insurance requirements in relation to property damage, a natural reading of the section requires that it be confined to rights to damages in respect of death or bodily injury, these being the benefits which the statute is concerned to provide. It would be otherwise if any recognizable policy could be seen to be served by restricting contractual freedom in this area. But no such policy can be discerned." 92 Of course, every statutory context must be considered separately as the indicators will differ from case to case. In my opinion, Mason J's approach is applicable to s106 of the Act. The present context is one solely relating to the performance of work. 93 In my opinion, the scope and purpose of the legislative scheme requires the words conferring power - "void" and "vary" or to order the payment of money - be "constrained by their context", to use the terminology of CIC Insurance quoted above. There are numerous instances of such a process, dating back at least to 1560 in Stradling v Morgan (1560) 1 Plowden 19 at 204; 75 ER 305 at 312. (See the cases referred to in R v Young (1999) 46 NSWLR 681 at [17]-[31].) The immediate context, confirmed by the entire legislative scheme, is one relating to "work in an industry". 94 It is not appropriate, in the context of a legislative scheme such as Pt 9 Div 1, to take a narrow approach to the total package of benefits, conditions rights and obligations which relate to performance of work. Nevertheless, the provisions of the Share Sale Agreement cannot, in my opinion, be related to the performance of work at all, let alone closely. 95 In my opinion, the power of the Commission to declare void or to vary a contract or arrangement does not extend to a provision which has no relationship whatsoever to the performance of work. Specifically, the formula for computation of the purchase price, in my opinion, has no such relationship and the Commission has no power to vary it.

The Privative Provision 96 The Opponents rely on the privative provision in the Act for the proposition that decisions of the Commission are not to be subject to challenge save to the limited extent recognised by the Hickman principle. The privative provision is s179: "179(1) Subject to the exercise of a right of appeal to a Full Bench of the Commission conferred by this or any other Act or law, a decision or purported decision of the Commission (however constituted): (a) is final, and (b) may not be appealed against, reviewed, quashed or called in question by any court or tribunal (whether on an issue of fact, law, jurisdiction or otherwise). (2) A judgment or order that, but for this section, might be given or made in order to grant a relief or remedy (whether by order in the nature of prohibition, certiorari or mandamus, by injunction or declaration or otherwise) may not be given or made in relation to a decision or purported decision of the Commission, however constituted. (3) To avoid doubt, this section extends to any decision or purported decision of the Commission, including an award or order of the Commission." 97 In their submissions the Opponents state that the application now before the Court seeks to circumvent the intention of the legislature as set out in this section. The submissions note that no decision of any substantive kind has been made by the Commission. The Claimants in this Court have not asked the Commission to determine, by way of preliminary decision, whether or not it has the relevant jurisdiction. 98 Privative provisions of this character have a long history in Australian legislation both at State and Commonwealth levels. At Commonwealth level there is a constitutional overlay, by reason of the provisions of s75(v) of the Constitution which confers original jurisdiction on the High Court in matters in which a writ of mandamus, prohibition or an injunction is sought against an officer of the Commonwealth. Although this constitutional overlay is not present with respect to the determination of issues arising under State legislation, similar issues do arise, so that decisions under Commonwealth law are of guidance for purposes of a State legislative scheme. 99 The first issue that arises in the case of a privative provision is the question of construction and in particular how strict the construction ought be with respect to a privative provision applicable in legislation concerned with Australia's unique system of conciliation and arbitration of industrial disputes. 100 The second question that generally arises is whether the grant of relief in the form of a prerogative writ or equivalent order is discretionary. On the basis that the Court has a discretion to grant relief it must be a judicial discretion, to be exercised in accordance with principle. Amongst the principles of particular relevance in the context of industrial legislation in Australia is a doctrine of restraint on the part of courts with supervisory jurisdiction when asked to exercise that jurisdiction with respect to superior courts that are invested with jurisdiction for the prevention and resolution of industrial disputes and the regulation of conditions of work. 101 In order to understand the case law, and the applicability by way of analogy of decisions on cognate Commonwealth legislation, it is relevant to set out the privative provisions as they have developed over successive eras of industrial legislation in this State, culminating in s179 as set out above. That history is as follows:

Industrial Arbitration Act 1901: "32 Proceedings in the court shall not be removable to any other court by certiorari or otherwise; and no award, order, or proceeding of the court shall be vitiated by reason only of any informality or want of form or be liable to be challenged, appealed against, reviewed, quashed, or called in question by any court of judicature on any account whatsoever."

Industrial Disputes Act 1908: "52 Any decision of the Industrial Court shall be final, and shall not be removable to any other court by certiorari or otherwise; and no award, order, or proceeding of the court shall be vitiated by reason only of any informality or want of form or be liable to be challenged, appealed against, reviewed, quashed, or called in question by any court or judicature on any account whatsoever, and the validity of any decision shall not be challenged by prohibition or otherwise."

Industrial Arbitration Act 1912: "58(1) Any decision of the court shall be final; and no award, and no order, or proceeding of the court, shall be vitiated by reason only of any informality or want of form or be liable to be challenged, appealed against, reviewed, quashed, or called in question by any court or judicature on any account whatsoever. (2) No writ of prohibition or certiorari shall lie in respect of any award, order, proceeding, or direction of the court relating to any industrial matter or any other matter which on the face of the proceedings appears to be or to relate to an industrial matter. (3) The validity of any proceeding or decision of the board or of a chairman of a board shall not be challenged except as provided by this Act."

Industrial Arbitration Act 1940: "84(1)(a) Except as provided in section 14 any decision of the commission in court session or of any member of the commission sitting alone, whether pursuant to a delegation or otherwise, shall be final; and no award and no order, proceeding or contract determination of the commission in court session or of any such member shall be vitiated by reason only of any informality or want of form or be liable to be challenged, appealed against, reviewed, quashed or called in question by any court of judicature on any account whatsoever. (b) No writ of prohibition or certiorari shall lie in respect of any award, order, proceeding, direction or contract determination of - (i) the commission in court session, or (ii) any member of the commission sitting alone, whether pursuant to a delegation or otherwise, relating to any industrial matter or matter in respect of which a tribunal has jurisdiction or any other matter which, on the face of the proceedings, appears to be or to relate to an industrial matter or matter in respect of which a tribunal has jurisdiction. (2) * * * * * *"

Industrial Relations Act 1991: "301(1) Subject to the exercise of a right of appeal to the Full Industrial Court conferred by this Act or any other Act, a decision of the Industrial Court (however constituted) is final and may not be appealed against, reviewed, quashed or called in question by any court or tribunal. (2) A judgment or order that, but for this section, might be given or made in order to grant a relief or remedy in the nature of prohibition or certiorari may not be given or made in relation to a decision of the Industrial Court (however constituted). (3) This section does not affect the operation of section 48 of the Supreme Court Act 1970." 102 Over a long period of time it was clearly established that the word "decision" or "determination", where appearing in these earlier forms of privative provision, did not have the effect of protecting decisions in excess of jurisdiction. (See Clancy v Butchers' Shop Employés Union (1904) 1 CLR 181; Baxter v New South Wales Clickers' Association (1909) 10 CLR 114; Brown v Rezitis (1970) 127 CLR 157; Wilson Parking (NSW) Pty Ltd v Industrial Commission of New South Wales [1979] 1 NSWLR 396 at 407-408, 413; Svecova v Industrial Commission of New South Wales (1991) 39 IR 328; Walker v Industrial Court of New South Wales (1994) 53 IR 121; Rothmans Distribution Services Limited v Industrial Court of New South Wales (1994) 53 IR 157; Cepus v Industrial Court of New South Wales (1995) 60 IR 113.) 103 This earlier line of authority is made inapplicable under s179 by the extension of its protection to a "purported decision". (Cf Darling Casino Limited v New South Wales Casino Control Authority (1997) 191 CLR 602 at 635; and the analysis in Mitchforce Pty Ltd v Industrial Relations Commission of NSW (2003) 57 NSWLR 212 at 228, [62]-[65].) 104 Parliament preserved a supervisory jurisdiction by the express provision found in s48 of the Supreme Court Act 1970: "48(1)(a) In this section - 'specified tribunal' means - … (ii) Industrial Relations Commission or a member of that Commission … (2) There are assigned to the Court of Appeal proceedings in the Court - … (b) for commanding or otherwise requiring a specified tribunal to perform a public duty; (c) for prohibiting or otherwise restraining a specified tribunal from proceeding in any matter before the tribunal; (d) for commanding or otherwise requiring the removal into the Court of any matter before a specified tribunal, whether for the purpose of quashing or otherwise, but this paragraph has effect subject to subsection (3); (e) for determining, by declaration or otherwise, any matter concerning the powers of a specified tribunal; … (g) for otherwise reviewing a decision of a specified tribunal; … " 105 This jurisdiction would clearly be invoked if an error fell within the Hickman principle, but there is nothing to suggest that it is so limited. 106 Two new issues have arisen in the course of these proceedings. The first is the meaning of "decision" in s179. By reason of the pre-existing case law that read down the privative provisions, so as not to apply to jurisdictional error, this issue had not previously arisen for determination. 107 The second is whether the extension of protection to "purported decisions" is such as to put the issue of discretion, and in particular the doctrine of restraint that the Court has hitherto observed with respect to decisions of the Commission, in a different light. 108 It is necessary to address each of these issues.

Was There a Decision? 109 The word "decision" is of a protean character and takes its colour from its context. Cases interpreting the word in other statutory contexts must be treated with care. Nevertheless they do provide some guidance. 110 As Deane J said in Director General of Social Services v Chaney (1980) 47 FLR 80 at 100: "In the context of judicial or administrative proceedings, the word will ordinarily refer to an announced or published ruling or adjudication. In such a context, the word 'decision' may be apt to include the determination of any question of substance or procedure, including, for example, rulings on procedural questions such as whether particular evidence should be received, or the meaning of the word may be limited to a determination effectively resolving an actual substantive issue. When the word 'decision' has the last-mentioned limited meaning, it can refer to any such determination whether final or intermediate (see, for example, Registrar of Workers' Compensation Commission (N.S.W.) v. F.A.I. Insurances Ltd. [[1977] 1 NSWLR 422] or be limited to referring only to a determination which effectively disposes of the matter in hand (see, for example, Winter v. Winter [[1933] NZLR 289 at 295] and Penniel v. Driffill [[1980] WAR 30 at 32])." 111 This passage was referred to with approval in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 335 per Mason CJ with whom Brennan and Deane JJ relevantly agreed. Mason CJ went on at 335: "In the context of judicial proceedings, the Privy Council has accepted that 'the natural, obvious and prima-facie meaning of the word 'decision' is decision of the suit by the Court': see Rajah Tasadduq Rasul Khan v. Manik Chand [(1902) LR 30 Ind App 35 at 39]; The Commonwealth v. Bank of N.S.W. [(1949) 79 CLR 497 at 625]. But here the relevant context is not that of a decision reached in curial or judicial proceedings, so that the meaning must be determined by reference to the text, scope and purpose of the statute itself." 112 Australian Broadcasting Tribunal v Bond was concerned with the construction of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The holding in that case was that the word "decision" meant "an ultimate or operative determination" (at 338; see also at 375-376 per Toohey and Gaudron JJ). In other contexts also the word has been confined to a final order or determination. (See, e.g. Metropolitan Water Sewerage and Drainage Board v Histon [1982] 2 NSWLR 720; Bromley v Housing Commission of New South Wales (1985) 3 NSWLR 407.) Sometimes the word has been found to extend to interlocutory decisions which effectively resolve a substantive issue, even if not finally dispositive of the proceedings. (See, e.g. Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501.) 113 In the present case no interlocutory or other decision has been made. There has been no operative step in the proceedings and no order. I am unaware of any judgment in which the word "decision" has been found to apply in the absence of something in the nature of an operative step or order. 114 This Court has held, when exercising its jurisdiction to make an order cross-vesting proceedings to the Supreme Court of Victoria, that s179 did not extend to orders relating to proceedings "as opposed to orders or decisions of the Commission determinative of those proceedings in whole or in part". (Resarta Pty Ltd v Finemore (2002) 55 NSWLR 320 at 340, [86].) This conclusion is supported by authority. 115 I have set out s32 of the Industrial Relations Act 1901 above. This Court construed the words "award, order" as not extending to prevent prohibition lying to the Arbitration Court which was considering a summons to settle issues in an industrial dispute. In Ex parte The Caterers and Restaurant Keepers' Association (1903) 3 SR (NSW) 19 (a case referred to with approval in Clancy v Butchers' Shop Employés Union (1904) 1 CLR 181 at 205 per O'Connor J), Stephen ACJ said at 22: "s 32 … clearly refers to some order of the Court which has already been made and which it is sought to upset upon what is in reality an appeal. Here, on the contrary, the intention is to prevent an order from being made, which is a very different thing." 116 R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 118-119 is applicable to the present case. I will set out below the full passage when discussing the effect of the privative provision on the discretion to grant relief. It is implicit in that reasoning that the privative clause in the industrial legislation there under consideration had no effect prior to an "order or direction" of the Board. 117 To the same effect is the unanimous joint judgment of the High Court in Belmore Property Pty Ltd v Allen (1950) 80 CLR 191. A privative clause protected "every determination" of a Fair Rents Board, but the Court said at 196: "The words of the section in our opinion are clear. They provide, and provide only, that no writ of prohibition or certiorari shall lie in respect of a determination of the Board. They do not prevent or purport to prevent proceedings by way of prohibition before a determination has been made. Once the determination has been made s. 41 operates in the manner explained in R. v. Connell [(1944) 69 CLR 407]; R. v. Hickman [(1945) 70 CLR 598]; and Boulus v. Broken Hill Theatres Pty. Ltd. [(1949) 78 CLR 177]. But until a determination has been made the section has no operation (cf. Waterside Workers' Federation of Australia v. Gilchrist, Watt & Sanderson Ltd. [(1924) 34 CLR 482 at 526]). Accordingly, in our opinion, the Supreme Court should not have held that s. 41 was fatal to the prohibition proceedings." 118 These authorities are, in my opinion, applicable to the word "decision" in s179 of the Act. Nevertheless, it is necessary to consider each specific statutory regime. 119 Chapter 4 of the Act establishes the Commission and regulates its operations. The word "decision" appears in a number of sections in the Chapter in addition to s179. The word extends to encompass both the Commission's arbitral functions and its judicial functions. It is not a word to be given a narrow meaning. Nevertheless, the various references to the word "decision" do suggest that it is used in its natural and ordinary meaning of requiring some kind of determination which has operative effect. 120 The references include: · The power of the Commission to impose "conditions (including exemptions)" is attached to any power of the Commission "to make an award, order or other decision" and it is to all three of those matters, described as a "decision", to which the power to impose conditions attaches (s171). · A "decision" may be "reserved" and "given" subsequently either at a sitting or in writing (s177). · An appeal to the Full Bench of the Commission lies from a "decision" of a single member (s187). · An appeal to the Full Bench is to be made within 21 days after "the date of the decision appealed against", unless extended (s189). · A presidential member may, when an appeal is lodged, "order that the decision concerned be wholly or partly stayed pending determination of the appeal" (s190). · A member of the Commission who "made a decision the subject of an appeal" may not constitute the Commission for purposes of making interlocutory orders with respect to the appeal (s190A). · An appeal is not by way of rehearing and must be determined on the material "adduced in relation to the decision appealed against", unless further evidence which "concerns matters occurring after the decision" was made is admitted by leave (s191(1) and (2)). · A Full Bench must follow the principles applying to appeals from discretionary decisions and "cannot merely substitute its decision on the matter" (s191(3)). · On an appeal, a Full Bench may "confirm quash or vary the decision" (s192(1)). · A Full Bench may direct that "its decision on an appeal" take effect from a specified date (s192(2)). · A matter or question arising in a matter before a member of the Commission may be referred "for decision by a Full Bench of the Commission" and, thereupon, the Full Bench may "hear and determine the matter or question" (s193). · Provision is made for appeals to the Commission against "a decision made by the Industrial Registrar" or a refusal by an Industrial Registrar and on such an appeal being instituted the Commission may "order that the decision concerned be wholly or partly stayed" (ss194(1) and (3)). · An Industrial Registrar may refer a matter or question for "decision by the Commission" and the Commission may then "hear and determine the matter or question" (s195). · On appeal to the Full Bench of the Commission against an order made or a conviction or penalty or civil penalty imposed by a Local Court s179 of the Act "applies to a decision or purported decision of a Local Court" and to a "decision or purported decision of the Commission in respect of proceedings" on such an appeal (s197). · An appeal from an Industrial or other Magistrate to acquit a person of an offence against the occupational health and safety legislation lies to the Full Bench of the Commission in Court Session (s197A). 121 Each of these references involves some form of operative step. Thus s171 identifies the genus of "decision" as including an "award" and "order". A decision is something which is "given" (s177), that may be "stayed" (s190) and 'confirmed', 'quashed' or 'varied' (s192). There is also a distinction between a "decision" and a "matter or question" which may be referred for "decision" (s193). 122 Whether or not an interlocutory step constitutes a "decision" for purposes of s179 will depend on the circumstances of a particular case and the nature of the order. An issue may then arise as to whether a jurisdictional challenge constitutes a "review" or a calling into question of that decision. In the present case there is no operative step of any kind. In my opinion, there must be something of that character to constitute a "decision". Section 179 does not attach to the mere existence of proceedings in the Commission. It requires a "decision" to have been made. 123 It cannot be the case that the word "decision" is intended to prevent any supervisory review from the moment that proceedings are instituted in the Commission. No interpretation of the word "decision" could extend so far. Section 48 of the Supreme Court Act, set out above, makes it clear that this Court's supervisory jurisdiction over the Industrial Relations Commission does continue in some manner, notwithstanding s179 of the Act. 124 The submission on the part of the Opponents that the present application is in some way an attempt to "circumvent the intention of the legislature" in s179 misunderstands the process of statutory interpretation. The task of the courts is to interpret the words used by Parliament. It is not to divine the intent of the Parliament. (State v Zuma (1995) 4 BCLR 401 at 402; [1995] 2 S Afr LR 642; Matadeen v Pointu [1999] 1 AC 98 at 108; R v PLV (2001) 51 NSWLR 736 at [82].) The courts must determine what Parliament meant by the words it used. The courts do not determine what Parliament intended to say. (Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 459; Stock v Frank Jones (Tipton) Limited [1978] 1 WLR 231 at 236G; Black-Clawson International Limited v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 at 613G and 645C-V; R v Young (1999) 46 NSWLR 681 at [5]; Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2004) 78 ALJR 161 at [10].) 125 In my opinion, at this stage of the proceedings in the present case, there is nothing that could constitute a "decision" or a "purported decision" for purposes of s179 of the Act. For the above reasons, s179 has no operation to the application now before the Court.

The Nature of the Supervisory Jurisdiction 126 There is no doubt that the Commission has jurisdiction to determine its own jurisdiction. This is implicit in its status. The jurisdiction is affirmed by the express terms of s175 of the Act which provides:- "The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument)." 127 The definition of "industrial relations legislation" in the Dictionary extends to "this Act". 128 By s152(1) the Commission in Court Session is established as a superior court of record. However, even a superior court of record may be subject to prohibition. Federal courts of that character are subject to the orders found in s75(v) of the Constitution. See for example the authorities summarised in R v Gray; Ex parte Marsh (1985) 157 CLR 351 at 374 per Mason J. 129 Many of the relevant High Court authorities are concerned with the application of s75(v) of the Constitution, particularly to industrial tribunals created by Commonwealth legislation. Authorities on s75(v) of the Constitution must be treated with care as that jurisdiction is not co-extensive with the common law supervisory jurisdiction of a superior court. The constitutional writs are not necessarily attended by the same incidents as the prerogative writs or, pursuant to s69 of the Supreme Court Act 1970, set out below, equivalent relief or remedy. (See Re Grimshaw; Ex parte Australian Telephone and Phonogram Officers' Association (1986) 60 ALJR 588 at 594; Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 esp at [21]-[23], [162], [164]-[166].) 130 Accordingly, the case law with respect to Commonwealth industrial tribunals and federal courts is not necessarily directly applicable to State tribunals and courts. There is a constitutional dimension given to words such as "prohibition" and "jurisdiction" which may differ from the same concepts in the general law. See e.g. Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Qld) (1995) 184 CLR 620 esp at 652-653. See also Re Refugee Tribunal; Ex parte Aala at [19]-[23]. As to the different position of the Federal Court of Australia under s75(v) of the Constitution, see R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 193-194, 203, 204, 214, 215, 217-220, 225-226; also R v Gray; Ex parte Marsh (1985) 157 CLR 351 at 375, 382, 384.

131 In R v Ross-Jones; Ex parte Green at 217-218, Brennan J contrasted the position under s75(v) and at common law. In the case of the latter: "… as soon as court process has been served a prosecutor is entitled to the issue of prohibition as of course if the absence of jurisdiction is apparent upon the face of the proceedings - a patent defect: Mayor of London v. Cox [(1867) LR 2 HL at 281]; Farquharson v. Morgan [[1894] 1 QB 552 at 557 per Lopes LJ]; Yirrell v. Yirrell [(1939) 62 CLR 287 at 297, 304, 306, 310]; Master Retailers Association of N.S.W. v. Shop Assistants Union of N.S.W. [(1904) 2 CLR 94 at 98]. Where the defect of jurisdiction is not patent, prohibition is discretionary and 'where the complaint is that an order may be made in excess of power or notwithstanding that the power has not attached, the prosecutor must show a real likelihood or danger of such an order being made': Reg. v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty. Ltd. [(1953) 88 CLR at 119]. The s. 75(v) jurisdiction of this Court over superior Federal courts is, in my opinion, discretionary in every case." 132 Also in that case, Gibbs CJ referred to the Australian Stevedoring Industry Board case and said at 194-95: "If, therefore, a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved, the writ will issue almost as of right, although the court retains its discretion to refuse relief if in all the circumstances that seems the proper course. On the other hand, if the want or excess of jurisdiction is not clearly established, prohibition will be refused: R. v. President of Commonwealth Court of Conciliation and Arbitration; Ex parte Australian Agricultural Co. Ltd. [(1916) 22 CLR 261]. If the jurisdiction of the tribunal to which prohibition is sought to be directed depends on the existence of particular facts which are in dispute, it will often appear desirable to let that tribunal proceed to determine those facts in the first place. It is involved in what I have already said that a court of limited jurisdiction has power to determine the existence or otherwise of facts on which its jurisdiction depends, although its determination is not conclusive: see also D.M.W. v. C.G.W. [(1982) 151 CLR 491 at 505]. Even where there is a preliminary or collateral issue as to the existence of facts on which the jurisdiction of the tribunal depends, prohibition may be granted before the tribunal has made a finding on that issue, as, for example, where there is some reason for thinking that the tribunal will decide the issue erroneously or otherwise exceed its authority (cf. Reg. v. Federal Court of Australia; Ex parte Pilkington A.C.I. (Operations) Pty. Ltd. [(1978) 142 CLR 113 at 127]) or where it is apparent that the issue must be decided in a way that will reveal a want of jurisdiction." 133 The constitutional writ of prohibition is discretionary (see Re Refugee Tribunal; Ex parte Aala, esp at [5], [49]-[56], [145]). The common law principle was that prohibition for patent excess of jurisdiction could not be refused in the exercise of a discretion. However, to use the terminology of R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 118-119, the proposition that "while prohibition is not a writ of course, it is a writ which goes as of right" was, as Gaudron and Gummow JJ showed in Re Refugee Tribunal; Ex parte Aala at [44] (see also at [5] per Gleeson CJ and [138] per Kirby J), based on the "prerogative features" of the writ to the effect that certain conduct encroached on the royal prerogative. 134 Just as that basis has become inapplicable under s75(v) of the Constitution, it may also be inapplicable in New South Wales by force of s69 of the Supreme Court Act 1970, which provides: "69(1) Where formerly: (a) the Court had jurisdiction to grant any relief or remedy or do any other thing by way of writ, whether of prohibition, mandamus, certiorari or of any other description, or (b) in any proceedings in the Court for any relief or remedy any writ might have issued out of the Court for the purpose of the commencement or conduct of the proceedings, or otherwise in relation to the proceedings, whether the writ might have issued pursuant to any rule or order of the Court or of course, then, after the commencement of this Act: (c) the Court shall continue to have jurisdiction to grant that relief or remedy or to do that thing; but (d) shall not issue any such writ; and (e) shall grant that relief or remedy or do that thing by way of judgment or order under this Act and the rules; and (f) proceedings for that relief or remedy or for the doing of that thing shall be in accordance with this Act and the rules. (2) Subject to the rules, this section does not apply to: (a) the writ of habeas corpus ad subjiciendum; (b) any writ of execution for the enforcement of a judgment or order of the Court; or (c) any writ in aid of any such writ of execution." 135 I proceed on the basis that, in New South Wales, an order in the nature of prohibition is discretionary in all cases, but should issue "almost as of right". (To use the formulation of Gibbs CJ in R v Ross-Jones; Ex parte Green at 194, approved in Re Refugee Tribunal; Ex parte Aala at [5], [51], [149]).

The Principle of Restraint 136 There was a well established principle that this Court should exercise restraint with respect to the exercise of its supervisory jurisdiction in relation to the Commission. This principle is reflected in a body of case law both in this Court and in the High Court with respect to the Commission and its predecessors or equivalent tribunals. (See, e.g. Baxter v NSW Clickers' Association (1909) 10 CLR 114 esp at 148, 161; Bank of New South Wales v United Bank Officers' Association and the Court of Industrial Arbitration (1921) 21 SR(NSW) 593 esp at 614, 617; Houssein v Under Secretary of Department of Industrial Relations and Technology (NSW) (1988) 148 CLR 88 at 95; Public Service Association (SA) v Federated Clerks' Union (1991) 173 CLR 132 at 147-148; Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 at 510-512, 518-519.) 137 This principle has been applied to s106 and its predecessor provisions which, of course, do and did extend to matters of an industrial character. (See Metropolitan Water Sewerage and Drainage Board v Judges of the Industrial Commission of New South Wales [1981] AR 305 esp at 307-308, 309-310; Ultra Tune (Aust) Pty Ltd v Swann (1983) 8 IR 122; Maltais v Industrial Commission (NSW) (1986) 14 IR 367; Ballam v Higgins (1986) 17 IR 131 esp at 132-133.) 138 However, these decisions predate s179 and its extension of protection to "purported decisions". The principle of restraint was established when this Court's supervisory jurisdiction could still be exercised with respect to jurisdictional error, after the Commission, or its predecessor, had made a final decision. This change is of significance. 139 In R v Australian Stevedoring Industry Board, the High Court prohibited the cancellation or suspension of the registration of an employer under the Stevedoring Industry Act 1949 (Cth) although the Board was still conducting an inquiry as to whether or not it should act in that manner. The joint judgment of four justices said at 118-119: "Now it might be said that until an order for cancellation or suspension of the registration of an employer has been actually made the Court ought not to consider whether the basis for making such an order is so wanting that the power has not arisen or whether to exercise the power means the application of an erroneous test or some other abuse, and that accordingly the Court should withhold the writ until the result of the inquiry is known. There are two observations to make upon such a view of the matter. The first is that it must be borne in mind that, subject to certain limitations not here material, while prohibition is not a writ of course, it is a writ which goes as of right when the prosecutor is directly affected by the course pursued by a tribunal to which the writ lies and the prosecutor shows satisfactorily that the tribunal is about to act to his detriment in excess of its authority. The second observation is that the existence of s. 52 in the Act supplies a strong reason for the prosecutor seeking the protection of the writ before the board or its delegate orders cancellation or suspension when it or he threatens to make such an order although the requisite basis for the exercise of the power is absent or the grounds upon which it is threatened are legally misconceived, and extraneous to the board's authority. Section 52 provides that: 'An order or direction of the Board shall not be challenged, appealed against, reviewed, quashed or called in question, or be subject to prohibition, mandamus or injunction, in any court on any account whatever'. Similar provisions have been considered in this Court in R. v. Hickman; Ex parte Fox [(1945) 70 CLR 598 at 614]; R. v. Murray; Ex parte Proctor [(1949) 77 CLR 387 at 398, 399]; R. v. Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section [(1951) 82 CLR 208 at 248, 249]. It is unnecessary now to discuss the extent of the operation or of the validity of s. 52, but whatever view may be taken on that question the section shows not only that the legislature desired that the authority of the board should not be impugned after it had made an order, but also that to defer the grant of the remedy until that event, where otherwise the prosecutor is entitled to a writ, may and perhaps must operate to the prejudice of the prosecutor. At common law a prosecutor is expected to apply at the earliest stage at which his right to a writ arises, but he is not entitled to the remedy quia timet , that is before the tribunal is invoked or assumes a jurisdiction or authority over the matter and, where the complaint is that an order may be made in excess of power or notwithstanding that the power has not attached, the prosecutor must show a real likelihood or danger of such an order being made. It is in this respect only that the stage at which the present application is made becomes important." [Emphasis added] 140 That the existence of a privative provision constitutes a reason for not refraining from the exercise of a supervisory jurisdiction has been affirmed in other cases. 141 In Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 427 Walsh J (in dissent, but on a different point) indicated that the Supreme Court should not as a "general rule" intervene by way of declaration in proceedings before a specialist tribunal, relevantly, a Mining Warden. His Honour added at 428: "… if his decisions were immune from review by means of any of the prerogative writs, that might be a ground for concluding, in some cases, that the Supreme Court ought to intervene by means of a declaration before the warden had given a decision, in order to ensure that the matter should not be finally determined in a manner which was not according to law." 142 The determination of jurisdictional facts frequently overlaps with the fact finding required for the exercise of the jurisdiction. There are numerous comments in the cases which indicate that a court exercising a supervisory jurisdiction should be slow to intervene in such circumstances and should permit the tribunal which has been designated by Parliament to make such findings to do so in the first instance. However, this conclusion is often based on reasoning which indicates that such restraint serves the important function of rendering more efficacious the court's supervisory and, in some cases, appellate jurisdiction. 143 I refer, for example, to the following statements which, although out of full context, support this proposition: · "As the ultimate court of appeal this Court is entitled to the benefit of considering the Federal Court's views on the construction and application of the provisions of the Act. Moreover, this Court is entitled to the benefit of the Federal Court's findings of fact. Many cases arising under the Act are noted for their complexity both in relation to the facts and the law, and it is desirable that the Federal Court should be permitted to exercise its jurisdiction without interference by this Court by way of grant of prohibition except in those instances where the matter in question plainly gives rise to an absence or excess of jurisdiction." ( R v Federal Court of Australia; Ex parte Pilkington A.C.I. (Operations) Pty Ltd (1978) 142 CLR 113 at 127 per Mason J.) · After referring to the above passage, Glass JA in Metropolitan Water Sewerage and Drainage Board at 308 rejected a submission that the material before the Commission could not satisfy the jurisdictional requirements of s88F: "We should in my view not entertain such a submission until the applicants have called all their evidence and until the probative value of such evidence has been judged by the Court invested with exclusive authority in industrial matters." · To similar effect are the observations of Moffitt P in that case at 310: "There are nearly always disadvantages, usually on matters of delay, in some cases exploitation of delay, and in lack of finality in this Court interfering with the exercise of jurisdiction or power by a court or tribunal where preliminary decisions have been taken on some limited and not necessarily final examination of relevant facts and circumstances." · In Ultra Tune v Swann at 123, it was said that further evidence could "… lead to an alteration of the present factual position. That being so, I do not think that this Court as a matter of discretion ought to intervene at this point in time" (per Mahoney JA). · In Maltais v Industrial Commission at 368, Kirby P said: "If the Court Session, in the exercise of the jurisdiction conferred upon it by the Parliament, errs in the determination of its jurisdiction, it is still open for an aggrieved party, subject to the Act, to challenge the excess of jurisdiction in this Court. The court will then be able to approach the issues, with the benefit of the reconsideration of the decision of the primary judge by that tribunal which has the responsibility in law of being the primary forum of appellate review …" [Emphasis added] · In Ballam v Higgins (1986) 17 IR 131 at 132 Kirby P said: "… where an internal appeal permits the agitation and determination of the question of jurisdiction, I am of the view that normally this Court should, in the first instance , leave it to those internal processes to correct a suggested error of jurisdiction before offering prerogative relief." [Emphasis added] His Honour went on to give a number of reasons for this approach including: "It allows complete exhaustion of any additional factual issues which may be relevant to establishing the facts said to ground jurisdiction, which facts may more readily be determined below than in this Court. " · In Ballam, McHugh JA agreed and added at 133: "The merits of an application under a s88F of the jurisdiction of the Commission to consider the application are often closely related to the issue of jurisdiction … It is, therefore, always of assistance to this Court to have the benefit of findings of fact by the Industrial Commission." [Emphasis added] · In Boral Gas (NSW) Pty Ltd v Magill at 518, Mahoney JA said: "It is open to a court from which prerogative relief is sought prior to the conclusion of the proceeding in the lower court to determine that the issue will not be determined until relevant findings of fact have been made by that court or the proceeding in that court has been finally determined. This Court has taken this course, particularly in relation to the Industrial Relations Commission, where issues of fact may be determined which would affect the availability of prerogative relief or issues of law are to be determined which may affect the nature and extent of the relief to be given." · A deferral of an application for prohibition should occur if it "would assist this Court in discharging its ultimate responsibility if evidence were taken in the tribunal below." (R v Judges of the Federal Court of Australia; Ex parte Western Australian National Football League Inc (1979) 143 CLR 190 at 216 per Gibbs J.) 144 Reasoning of the above character is not applicable where, as is now the case with respect to the Commission, after a "decision" is made, prerogative relief is available only on the restricted basis of the Hickman principle. 145 Although this Court must still be slow to intervene before a superior court like the Commission has had an opportunity to determine its own jurisdiction, the principle of restraint can no longer operate as it did before s179 was enacted, at least with respect to matters that are not of an industrial character.

Exercise of the Discretion 146 There are a number of reasons why the discretion should be exercised in a case of this kind. 147 The policy of the law is to encourage the settlement of disputes. The policy of this Court has long been to ensure the early determination of commercial disputes, whether by negotiation, mediation or adjudication. In order to observe this policy the Supreme Court has long since adopted case management practices designed to identify at an early stage the true issues in dispute. 148 Alternative dispute resolution which, as s109 of the Act shows, is also a purpose of the Industrial Relations Act 1996, is likely to be less effective where there is uncertainty as to the applicable legal principles. Where, as with s106, there is a power to vary which on one view is unconfined by the scope and purpose of the legislation, there is no legal standard on the basis of which advice as to prospects can be given. Advice concerning the exercise of an unconfined discretion does not involve the clarity of a legal standard. 149 Advice on prospects about whether a contract will be found to be unfair on the broad basis permitted by the Act, and the nature and extent of variation likely to be ordered by the Commission, covers a much broader spectrum than the usual commercial dispute. The very breadth of the range of outcomes is such that legal advice as to prospects is likely to be similarly divergent. This tends to inhibit the prospect of compromise. If relief under s106 is not available, commercial parties should be told at an early time. 150 In commercial matters of this character, the economic welfare of the community requires early determination of the dispute. If there is a definite basis for resolving or narrowing the case, in a manner which advances commercial convenience, this Court should not refrain from exercising its jurisdiction unless there is a reason for doing so. I can see no such reason here. 151 The Commission is comprised of judges drawn in large measure from the specialist industrial bar. Few, if any, of the members of the Commission have substantial experience of commerce or of commercial law. Where, as here, relief is sought with respect to matters which do not relate to the performance of work, the Commission is not a "specialist tribunal" of the kind referred to in the authorities, whose expertise should be accepted by a court with a supervisory jurisdiction. 152 Furthermore, nothing has been placed before the Court which suggests that any fact finding is required to determine the jurisdictional issue. In accordance with the Rules of the Commission, set out above, the Summons contains a summary of the facts. For purposes of these proceedings, the Claimants accept the facts set out in the Summons. Those facts and the supporting documents which have been tendered, and the relevant background in the Opponent's oral evidence, do not suggest any deficiency in the material before the Court. 153 The aspect of the proceedings challenged here would give rise to considerable expenditure on the part of the parties and require the Commission to devote its limited resources to their resolution. Maintaining the complex issues that arise on foot would prevent the speedy resolution, including by way of settlement, of the issues that are within jurisdiction. 154 Furthermore, it has always been accepted that where the absence or excess of jurisdiction is quite clear, a court with a supervisory jurisdiction will not exercise its discretion by refusing to intervene. The test has been expressed in varied, but equivalent, terminology: "patent" per Brennan J in Ross-Jones at 218; "plainly" per Mason J in Pilkington A.C.I. at 127; "clear" per Mahoney JA in Boral Gas at 519 and per Murphy J in R v Judges of the Federal Court of Australia; Ex parte Western Australian National Football League at 238. 155 The position appears to be as set out by Brennan J in R v Gray; Ex parte Marsh at 381-382: "A defect in jurisdiction appearing on the face of the application does not require evidence to establish it ( Farquharson v. Morgan [[1894] 1 QB 552, at p. 563] nor can evidence cure it. The defect in jurisdiction being apparent, prohibition may be granted to restrain an intended exercise of jurisdiction."

(Cf "apparent on the face of the proceedings": R v Ross-Jones at 218 per Brennan J. See also Master Retailers' Association of NSW v Shop Assistants Union of NSW (1905) 2 CLR 94 at 98; Yirrell v Yirrell (1939) 62 CLR 287 at 297, 304, 306, 310.) 156 The facts necessary to determine jurisdiction may be "agreed" or "indisputable". (See Ex parte Western Australian National Football League at 206.9 and 207.7 per Barwick CJ.) The case may be one where "the jurisdictional facts are not in dispute". (Ballam at 133 per McHugh JA.) That is the case here. 157 A court exercising a supervisory jurisdiction will intervene where there is some reason for thinking that the tribunal will exceed the authority conferred upon it. (See R v Australian Stevedoring Industry Board at 118-119 quoted in par [141] above. See also R v Gray; Ex parte Marsh at 375 per Mason J.) It is not necessary to rely on that approach in the present case. 158 For the reasons set out above, in my opinion, the defect in the jurisdiction of the Commission is patent, plain or clear in the sense referred to in the above authorities. It appears on the face of the Amended Summons and evidence cannot cure it, to apply the formulation in R v Gray; Ex parte Marsh. The Claimants are persons aggrieved and orders should be made "almost as of right" to use the formulation of Gibbs CJ in R v Ross-Jones approved, as I have noted above, in Re Refugee Tribunal; Ex parte Aala. An order to the effect of prohibition should issue. 159 Order 1 in the Summons filed in this Court should be made. The orders I propose are:

1 The First Opponent is prohibited from taking any steps to further exercise, or purport to exercise, its power under s106 Industrial Relations Act 1996 in Industrial Relations Commission of NSW proceedings No 1168 of 2002 with respect to the Share Sale Agreement between the First Claimant, Second Opponent, Third Opponent and FishTech and Partners Pty Ltd as described in the Amended Summons filed in the Industrial Relations Commission proceedings on 14 February 2003.

2 The Second and Third Opponents should pay the Claimants' costs. 160 MASON P: I agree with Spigelman CJ and the supplementary reasons of Handley JA. I share the reservations expressed by Handley JA in the penultimate paragraph of his reasons. 161 HANDLEY JA: In this matter I have had the benefit of reading the reasons for judgment of the Chief Justice in draft. I agree substantially with his Honour's reasons and I agree with the orders he has proposed but will add some supplementary reasons of my own. 162 Mr Douglas QC did not challenge the jurisdiction of the Commission to uphold the opponents' claim that the Share Sale Agreement was unfair because it "permitted" Solution 6 Holdings to commit a breach of contract. The Commission held by majority in Reich v Client Services Professionals of Australia Ltd (2000) 49 NSWLR 551 that a contract can become unfair because of conduct in breach of its terms. The Chief Justice has again left open the validity of this proposition. I wish to express grave reservations about it. 163 I raised this matter with Mr West QC towards the end of his argument and he did not attempt to defend the proposition. The common law "permits" every party to every contract to commit a breach of its terms. Such conduct although unlawful (see Rookes v Barnard [1964] AC 1129, 1201, 1206-7) in one sense is "permitted" because the ordinary remedy for breach of an executory contract is an award of damages, not specific enforcement. The common law also "permits" a party to a contract that has otherwise been fully performed to breach its terms by failing to pay the contract debt on time. Even where equity would directly enforce a contract by specific performance or injunction breaches will normally have occurred and those contracts too will have "permitted" those breaches. 164 Accordingly the principle that a contract can become unfair because of a breach produces the remarkable result that all contracts are unfair because all contracts permit a breach. Despite the general principle that the question of unfairness is a matter for the Commission and not a Court with purely supervisory jurisdiction, it is not at all clear that the Commission has jurisdiction within the Hickman principles to find that a contract which it has held to be otherwise fair is nevertheless unfair because it has been breached. The acts or omissions which constitute a breach of contract are of course unfair but that does not make the contract unfair. It may be a perfectly fair contract. 165 Until the definition of contract in s 105 is read into s 106(1) it is not immediately clear that the words "whereby a person performs work in any industry" qualify each limb of the definition. When the definition is read in the section reads: "The Commission may make an order declaring wholly or partly void, or varying, any contract [or arrangement or any related condition or collateral arrangement] whereby a person performs work in any industry …" (brackets supplied) 166 The extended text makes it clear that the words "whereby a person performs work in any industry" qualify each limb in the definition of contract and not merely the first two. Where there is a contract or arrangement whereby a person performs work in any industry a related condition or collateral arrangement which is not itself one whereby work is performed in an industry is not within the jurisdiction conferred by the section. 167 Section 106, when extended by the definition, is relevantly in the same terms as its predecessors and the same construction applies. The present point was noticed in Gosper v Sawyer (1985) 160 CLR 548, 560 by Gibbs CJ, Wilson and Dawson JJ who said: "It may be assumed, without deciding, that the phrase 'whereby a person performs work in any industry' governs 'contract or arrangement' and not 'collateral arrangement relating thereto' and that the power extends to avoid or vary, not only the contract or arrangement of employment, but also any collateral arrangement relating thereto." 168 This is not even a dictum on the point, as the Justices made clear, because they were emphasising that when every possible assumption was made in favour of the applicant in the Commission it still lacked jurisdiction. 169 The construction assumed in Gosper v Sawyer would require either the insertion of brackets around the words "or any related condition or collateral arrangement" or the transposition of the words "whereby a person performs work in any industry" so that they followed "contract or arrangement" and preceded the words "or any related condition or collateral arrangement". Such a result may be achieved by surgery but not by construction. 170 The Chief Justice has concluded that a narrow construction of s 106(1) is required to accommodate its context in the Act and I agree. In my judgment this view is supported by the wider context. This includes the Contracts Review Act 1980 which confers powers on the ordinary Courts to vary contracts or declare them void and grant consequential relief. It also includes the Fair Trading Act 1987 which in ss 42, 43, 44, 45, 49, 50, 54 and 55 proscribes unfair and unconscionable conduct in trade or commerce. Such conduct commonly brings about the formation of contracts and if so the Supreme Court under s 72(5) can vary or avoid them and grant consequential relief. 171 The powers conferred on the ordinary Courts by these Acts to vary or avoid contracts are subject to their own restrictions and limitations, and on any view overlap s 106. Nevertheless these Acts apply generally to all types of contracts, whereas s 106(1) only applies to those whereby a person performs work in any industry. In this wider context s 106(1) can be seen to be a special and not a general power. This supports the narrower construction adopted by the Chief Justice which leaves the Share Sale Agreement outside the jurisdiction conferred by s 106(1). 172 This construction does not elevate form over substance. Nothing can turn on whether the overall arrangement is incorporated in one or more contracts or documents or is effected by one or more informal transactions. Even under the general law the existence of separate documents executed at or about the same time can rarely, if ever, affect the legal relationship between the parties. In Shaw v Jeffrey (1860) 13 Moo PCC 432, 456-7 [15 ER 162, 171] Knight Bruce LJ said: "When the same parties execute contemporaneously several instruments relating to different parts of the same transaction, all must be considered together; all must be examined in order to understand each … and … the governing intention of the parties is … collected from a consideration of the language of all the instruments, and effect given to it." 173 This passage was quoted by Isaacs J in Toohey v Gunther (1928) 41 CLR 181, 196 who continued: "Applying that principle, no doubt can exist that the three documents are integral parts of the same wide transaction, intended to regulate as a totality the relations and rights and obligations of the parties … and therefore incapable of being treated as independent of each other." 174 There is no need to invoke these principles in cases under s 106(1), which as Barwick CJ said in Brown v Rezitis (1970) 127 CLR 157, 164 strikes at subterfuges and enables the Commission to uncover the real transaction. This means the real transaction whereby work was performed in an industry. However as the Chief Justice has demonstrated the real transaction whereby Mr Fish performed work in an industry was the employment contract and not the Share Sale Agreement. 175 A decision that the Commission has no jurisdiction to review the Share Sale Agreement is not inconsistent with the decisions of the Commission and the superior courts dealing with composite transactions. In appropriate cases a share farming agreement (Stevenson v Barham (1977) 136 CLR 190) a lease of land (Mitchforce Pty Ltd v Industrial Relations Commission (2003) 57 NSWLR 212, 226, 247) or a licence to occupy land (Caltex Oil (Australia) Pty Ltd v Feenan [1981] 1 NSWLR 169; Majik Markets Pty Ltd v Brake and Service Centre Drummoyne Pty Ltd (1992) 28 NSWLR 443) may be a contract whereby a person performs work in an industry so that all its terms are susceptible to avoidance or variation by the Commission. 176 Thus in Stevenson v Barham the right to occupy the land for share farming purposes, and the remuneration of the share farmer for his work by a share of the profits, were inseparable parts of one transaction. In Caltex Oil (Australia) Pty Ltd v Feenan the licence to occupy the service station and the licence fees and prices payable by the licensee for products supplied by the company were also inseparable parts of one transaction. The remuneration of the licensee for his work could only be determined by considering all his rights and obligations under the overall arrangement. The Commission has jurisdiction in such a case whether the licence agreement and the fuel supply contract are in separate documents or not. 177 The point is illustrated by the decision of this Court in Ex parte V G Haulage Services Pty Ltd Re Industrial Commission [1972] 2 NSWLR 81. The overall contract or arrangement whereby a person performed work in an industry comprised the sale of a truck on terms over five years, a work agreement with the vendor under which the purchaser paid a premium of $2500 to obtain haulage and freight contracts over five years, and an agreement for the allotment by the vendor to the purchaser of one thousand preference shares of £1 each. This Court held that the whole contract or arrangement was within the jurisdiction of the Commission under s 88F and the decision has never been doubted. The Commission's jurisdiction in sale of truck in work cases was frequently exercised before and after that decision. See eg Davies v General Transport Development Pty Ltd [1967] AR (NSW) 371. 178 The Share Sale Agreement was no sense a contract whereby a person performed work in an industry. If Mr Fish had died between contract and completion Solution 6 Holdings could have waived the condition precedent in cl 2.1(a) and enforced completion although Mr Fish never worked and never could work for it or Solution 6. The seller was not his existing employer and the buyer did not become his new employer. The Share Sale Agreement was relevantly indistinguishable from the contract for the sale of the business held to be outside the Commission's jurisdiction in Production Spray Painting & Panel Beating Pty Ltd v Newnham (1991) 27 NSWLR 644. In that case persons associated with the vendor did not work for the purchaser after completion and the Court left open the question of jurisdiction in such a case. Having had the benefit of the further argument in this case it is now clear to me that jurisdiction would not be attracted in such a case and there is no relevant distinction between that case and the present. 179 If the Commission found that this employment contract was not itself unfair it would be remarkable if it had jurisdiction under s 106 to vary a contract between two corporations for the sale of shares in another corporation on the ground that it was unfair. Such a result would be no less remarkable even if the employment contract was unfair because the appropriate relief would be limited to the avoidance or variation of that contract and appropriate consequential orders. 180 The shares subject to the Share Sale Agreement were not used by Mr Fish in or in connection with his work. They were not analogous to the farm, the hotel, the service stations or the trucks in the transactions considered in the leading cases. 181 The fairness or unfairness of the Share Sale Agreement would not have been affected even though Mr Fish worked for Solution 6 on generous terms for the rest of his normal working life, nor would it have been affected if he only worked for a short time before he died or became disabled. Equally the fairness or unfairness of his employment contract would not wax and wane with the market price of the shares. 182 I agree with the Chief Justice that s 179 has rendered inapplicable the line of authority in this Court under the earlier legislation which recognised a discretion to refuse prerogative relief until the Full Bench of the Commission had determined any internal appeal. When this line of authority was being developed s 84(1) of the 1940 Act and s 301 of the 1991 Act did not limit the jurisdiction of this Court to review for jurisdictional error in s 88F type cases. This Court could decline to entertain pre-emptive proceedings without affecting its jurisdiction or the rights of the parties. The only effect of s 84(1) of the 1940 Act in s 88F cases was to take away this Court's jurisdiction to grant certiorari for non-jurisdictional error of law on the face of the record: Houssein v Under Secretary Department of Industrial Relations and Technology (1982) 148 CLR 88. 183 The enactment of the expanded privative provision in s 179 removed the foundation on which this line of authority had developed. As the Chief Justice has demonstrated the section confers extensive protection against jurisdictional challenge after the Commission has made a decision but no protection against pre-emptive jurisdictional review. The section does not enlarge the jurisdiction of the Commission to make a decision under s 106. The section has and should have no effect within the Commission itself. In those circumstances The Queen v Australian Stevedoring Industry Board Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100, 118-9 establishes that it is the duty of this Court, on a timely application, to restrain action by the Commission in excess of its jurisdiction before it has had an opportunity to make a decision. 184 In paras 134 and 135 of his reasons the Chief Justice mentions the possibility that s 69 of the Supreme Court Act has altered the substantive law governing judicial review that was exercised before the Act through the prerogative writs. The point was not argued. I see no reason to depart from the view, adopted by this Court in Dickinson v Perrignon [1973] 1 NSWLR 72, 79, 82-3 shortly after the Act came into force, that s 69 had not altered the substantive law but in the words of Street CJ in Eq at 82 effected "a minor procedural change". This view has not hitherto been questioned. 185 The orders proposed by the Chief Justice should be made. **********

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