TAB Agents' Association of NSW v TAB Limited

APPLICANT Mr S C Rothman SC

SOLICITOR Clayton Utz SYDNEY. LEGAL REPRESENTATIVES: RESPONDENT Mr R S Warren of counsel

SOLICITOR Windeyer Dibbs SYDNEY.

THE TAB AGENTS' ASSOCIATION OF NEW SOUTH WALES v TAB LIMITED.

Application under s106 of the Industrial Relations Act 1996 INTERLOCUTORY JUDGMENT

1 The applicant, the TAB Agents' Association of New South Wales, is a registered union of employers under the Industrial Relations Act 1996 ('the Act'). It has commenced proceedings by a summons for relief under s106 of the Act on behalf of its membership, which, it is asserted in the summons, number 268 individuals ('agents') who operate betting agencies on behalf of TAB Limited ('the TAB'). The applicant now seeks interlocutory relief pending final determination of its substantive claims.

2 The motion was heard on 12 June 2003 when judgment was reserved. On 13 June 2003 the Court of Appeal gave judgment in Mitchforce v Industrial Relations Commission & Ors [2003] NSWCA 151. Subsequently, I invited the parties to make such submissions as they may wish in relation to the impact, if any, upon the arguments in relation to the motion of the Court of Appeal's judgment. Both parties filed written submissions responsively to that invitation, that process completing on 5 August 2003.

3 The summons for relief makes the following claims, apart from consequential orders and costs: 1. An order declaring that the New Agency Deed (as defined below in paragraph B37) between the Respondent and the members of the Applicant ("Members") whereby persons, including employees of the Members, perform work in an industry is unfair, harsh or unconscionable or contrary to the public interest, or has permitted such conduct, because: (1) it permits, and has permitted, the Respondent to unilaterally impose terms and conditions upon the Members in relation to the operation of that Member's betting agency;

(2) it permits, and has permitted, the Respondent to engage in unfair or unconscionable conduct towards the Members by permitting the Respondent to unilaterally impose terms and conditions upon the Members in relation to the operation of that Member's betting agency;

(3) it permits the Respondent to engage in unfair or unconscionable conduct towards the Members by requiring members to forgo or relinquish the right that that Member has, or may have, to resolve a dispute that they have, or may have, with the Respondent, in accordance with the procedure set out in the Dispute Resolution Agreement between the Applicant and Respondent dated 13 August 1996 ('DRA');

(4) it permits, and has permitted, the Respondent to engage in unfair or unconscionable conduct towards the Members in that the Respondent has not provided the Members with a real opportunity to determine whether to accept and agree to the terms and conditions contained in the New Agency Deed;

(5) it permits, and has permitted, the Respondent to engage in unfair or unconscionable conduct towards the Members in that it allows the Respondent to use its superior bargaining position to impose terms and conditions upon the Members in respect of the operation of their betting agency which excludes, or has that effect, the operation of the DRA.

(6) it expressly excludes the operation of the DRA in respect of any dispute between the Respondent and a Member;

(7) it does not provide a mechanism for the resolution of disputes between the Respondent and Member(s) such that the resolution is binding upon the parties thus requiring the parties to pursue a resolution through a court of law or like tribunal. 2. An order that the New Agency Deed be varied to delete clause 25.

3. An order that the New Agency Deed be varied to include a term in the following or similar: "The parties agree that, notwithstanding any term contained in this agreement, the terms of the Dispute Resolution Agreement dated 13 August 1996 between the TAB and the Agents Association will continue with effect as and from the date of this agreement." 4. An order pursuant to section 107 of the Industrial Relations Act 1996 (NSW) that the Respondent be prohibited from: (a) entering, without the consent of the relevant Member, into any further New Agency Deeds, or similar agreement, that contains a provision or provisions that exclude the, or have that effect, operation of the DRA.

(b) engaging in any conduct, including informing Members that they can either continue to operate that Member's betting agency on the same terms and conditions on a "month to month" basis or execute the New Agency Deed, which is intended to induce Members to enter into the New Agency Deed or similar agreement.

4 Subsequently, the applicant filed a notice of motion seeking interlocutory orders, apart from costs, as follows: 1. The Respondent be restrained pending final determination of the proceedings IRC No 5872 of 2002, or until further order of this honourable Commission in Court Session, from: (1) terminating, or taking any steps to give effect to the termination thereof, the right or ability of the Applicant's Members to operate their respective betting agency(s); and (2) entering into any further New Agency Deeds, or similar agreement, that contains a provision or provisions that exclude the operation of the Dispute Resolution Agreement dated 13 August 1996 between the Applicant and Respondent and/or that is in or to that effect and/or operates in a manner that does not extend to the parties thereto recourse to a dispute resolution procedure in or to the same or similar effect; and (3) engaging in any conduct which is intended to induce Members to enter into the New Agency Deed or similar agreement. 2. Until the final determination of the proceedings IRC No 5872 of 2002, or until further order of this honourable Commission in Court Session, the Applicant's Members be entitled to pursue any dispute, as defined pursuant to the Dispute Resolution Agreement dated 13 August 1996 between the Applicant and Respondent, that they have with the Respondent in accordance with the terms of the Dispute Resolution Agreement notwithstanding any terms(s) to contrary contained in the agency deed, or similar agreement, entered into between the Member and the Respondent.

5 The applicant moved upon an affidavit by Allan John Laird, the Secretary of the applicant and an agent appointed to conduct the TAB agency at Parramatta South. The TAB relied upon the affidavits of Grant William Goldsworthy, the Retail Manager - Agencies of the TAB and Peter James Kadar, the Chief Executive - Wagering of the TAB. Mr Laird also swore an affidavit in reply to those affidavits. Upon the basis of these affidavits, the following statement of the factual position relating to the motion may be stated.

6 There are 322 agencies contracted to the TAB in New South Wales and operated by approximately 275 individual agents; a number of agents operate more than one agency. The agents individually have been parties to a contract entered into by deed, which provided the terms upon which the agents would operate the agencies on behalf of the TAB ('the Old Agency Deed'). The broader terms of those arrangements are presently irrelevant. Two aspects require examination given the approach taken by the applicant in the motion for interlocutory relief from both the termination of agency agreements and the offering of a new form of contract ('the New Agency Deed').

7 Clause 1 of the Old Agency Deed provided: 1(a) The Board is the owner*/lessee* of premises situate at and known as (hereinafter referred to as "the premises")

(b) The Board is desirous that a Totalizator Off-course Betting Agency (hereinafter referred to as "the Agency") be conducted upon the premises pursuant to the authority in that behalf contained in the Act and the Agent has requested appointment by and authority from the Board to carry on the Agency on behalf of the Board on the premises upon and subject to the terms and conditions hereinafter contained.

(c) The Board hereby authorises the Agent to conduct the Agency on behalf of the Board on the premises and hereby grants to the Agent a licence to use and occupy the premises during the currency of this Deed from the ----- day of -------

Subject to Clause (d) hereof, or until this Deed shall be determined as provided for in Clause 16 hereof.

(d) At the expiration of the said two year period or any subsequent two year period granted in accordance with paragraph (c) (ii) hereto, this Deed shall remain in force for a further period of two years unless:

(i) A fresh Deed is executed between the parties hereto whereupon this Deed shall thereupon be determined; or

(ii) the Deed is terminated as provided for in Clause 16 hereof; or

(iii) not less than one (1) month prior to the expiration of the initial two (2) year period or any subsequent two (2) year period the Board shall have given notice in writing to the Agent that the Deed shall determine at the expiration of the said period. Should the Deed not be renewed by the Board under the terms of this Clause, the Agent shall be informed of the reason for such decision.

(e) The relationship between the Board and the Agent shall be that of Principal and Agent.

(f) Nothing in this Deed shall be construed so as to constitute a relationship of Lessor and Lessee between the Board and the Agent.

8 Clause 16 of the Old Agency Deed provided: Termination of Agency 16(a) This Deed may be determined by the Board as follows:- (i) At any time and without notice upon the happening of any of the following events:

3. Drunkeness of the Agent at any time during and in relation to any aspect of his operation and conduct of the Agency.

4. Failure by the Agent to abide by and comply with the mandatory operating procedures and administrative systems laid down by the Board.

5. Failure by the Agent to comply with any of the provisions of the Deed.

6. Where the whole or any part of the premises shall be destroyed or damaged by fire, lightning, flood, storm, tempest or other event or shall suffer war damage to the extent that the Agency can no longer be properly and efficiently conducted therein.

(ii) by giving to the Agent three (3) calendar months written notice in the event that the Agency is to be closed because of the expiration of any lease held by the Board of premises in which the Agency is conducted or the operation of the Agency is or has become unprofitable to the Board in its opinion.

(iii) Immediately in the event of a sequestration order being made in respect of the estate of the Agent, or upon the commission of any act of bankruptcy by the Agent or upon the Agent entering into any arrangement pursuant to the Bankruptcy Act.

(iv) Where the Agency is conducted by a partnership, immediately on the death, retirement or withdrawal of a partner therefrom or otherwise upon the dissolution of the partnership.

(vi) Immediately upon the mental illness of the Agent.

(vii) Immediately upon the attainment by the Agent of 65 years of age.

(b) This Deed may be determined by the Agent giving to the Board not less than one (1) calendar month's notice in writing.

(c) On the determination of the Deed pursuant to this Clause or to any other condition herein the Agent shall forthwith account to and pay to the Board all moneys then held by him for or on behalf of the Board or payable by him to the Board and shall forthwith hand over to the Board all stationery, tickets and other property of the Board that may be in his possession.

(d) No compensation shall be payable by either party on account of the determination of this Deed pursuant to this Clause.

9 In 1994 in settlement of proceedings brought under s275 of the Industrial Relations Act 1991 by the TAB Agents Association, the applicant and the TAB agreed, among other things, to institute a dispute settling procedure.

10 That agreement was formalised by deed in 1996. An important aspect of that agreement, from the point of view of what is claimed in these proceedings, was the right afforded by the deed to the agents to have particular issues which might develop into a dispute subjected to a dispute resolution process. That process required a number of steps but, significantly, an ultimate step of arbitration with the arbitrator authorised to make a binding determination in relation to an issue in dispute.

11 The agreement limited the matters which were capable of being arbitrated to those set out in the schedule to the deed as follows:

· Remuneration whether by way of fees and commissions, or otherwise including costs and charges payable by the Agent to the TAB. · Interpretation of the Agency Deed. · Enforcement of the Agency Deed. · Conditions associated with closing Agencies (during the term of the Agency Deed). · The term of the renewal of a Deed relating to any Agent. · A provision of any new Agency Deed which imposes either directly or indirectly an obligation which is additional to the obligations on an Agent in the existing Agency Deed. · The disciplining of Agents under the terms of the Agency Deed including questions of liability for Cash Unders. · Mandatory changes to the core hours of operation for a category of Agent.

12 Since 1996 there have been approximately nine disputes resolved at the Agency Council level; a further four disputes resolved at the next stage by the Review Panel; and a further three disputes referred to arbitration. Two of those were resolved prior to decision and the third was awaiting decision from the arbitrator at the date of hearing of the motion.

13 In 1998 a remuneration claim by agents proceeded to the arbitration stage but was ultimately settled. The term of the settlement was a commitment by the parties to formulate a new agreement relating to remuneration. A remuneration agreement was made on 7 May 1999, a term of which was that the parties would negotiate the terms and conditions of a new agency deed to be entered into between the agents and the TAB.

14 Discussions occurred late in 1999; they resumed late in 2000 and continued through to 2001.

15 On 7 March 2002 the TAB informed the agents, in the course of discussions, that the TAB could no longer engage in negotiations because of a concern that such conduct could involve a breach of Part IV of the Trade Practices Act 1974 (Cth) and/or the Competition Code of New South Wales. It was intended that the parties would obtain legal advice over those matters and react to that advice.

16 On or about 28 May 2002 the Association was advised by the TAB that it had circulated to agents a draft version of a new agency deed. That draft did not provide for the dispute resolution procedure contained in the old deed as cl.25.

17 The TAB informed a number of agents whose deeds were due to expire shortly after 28 May 2002 that they could either enter into a new agreement on the terms and conditions contained in the new agency deed or continue to operate on the same terms and conditions in the old agency deed, but on an interim basis terminable by either party by the provision of one month's written notice.

18 On or about 11 February 2003 the TAB advised that it was proposing to amend the terms of the new agency deed to provide a revised dispute resolution clause.

19 The new agency deed offered by the TAB contained a dispute resolution clause in the following terms: 25. Dispute Resolution

25.1 If a dispute arises out of or relates to this agreement, or the breach, termination, validity or subject matter thereof, or as to any claim in tort, in equity or pursuant to any domestic or international statute or law, the parties to this agreement and to the dispute expressly agree to endeavour in good faith to settle the dispute in accordance with the procedure set out in clause 25.2 below.

25.2 The following procedure will be administered to resolve disputes: (a) A party claiming that a dispute has arisen, must give written notice to the other party to the dispute specifying the nature of the dispute.

(b) Within seven (7) days of the receipt of the notice specified in (a) the parties must seek to resolve the dispute.

(c) If the dispute is not resolved within seven (7) days or within such further period as the parties agree then the dispute may be referred by either party to a panel consisting of the Agent, the President and Secretary of the Agents Association and the Chief Executive Wagering and Sales and Marketing Manager of TAB or their designates. The panel shall have no power to make a binding determination in relation to the dispute but will seek to facilitate an agreed resolution of the dispute between TAB and the Agent.

(d) If the dispute cannot be resolved in accordance with this clause 25.2 either party may take whatever action it chooses to enforce its rights.

25.3 No dispute resolution procedure or dispute resolution agreement, whether written or oral, entered into before the date of this Agreement to which TAB the Agents Association or the Agent are party will apply to any dispute between TAB and the Agent (whether relating to matters before or after the date of this Agreement) unless prior to the date of this Agreement formal proceedings have been commenced by TAB or the Agent in accordance with those procedures.

20 On 11 February 2003 the TAB advised that it had decided, after listening to suggestions from agents, to incorporate a provision for arbitration of certain issues relating to breaches of the express terms of the new agency deed which cannot be resolved by agreement. The proposal was to retain the language of cl.25 as set out in the new agency deed but to add to the clause the following new provisions: 25.3 If the dispute cannot be resolved in accordance with 25.2: (a) if the dispute is a Dispute Referable to Arbitration, either party may by written notice to the other within 7 days after the meeting of the panel under clause 25.2(c) (or such longer period as the parties may agree in writing), require that the dispute be determined by binding arbitration on the basis set out in clause 25.4; or (b) if the dispute is not a Dispute Referable to Arbitration or if neither party gives notice in accordance with (a) requiring a Dispute Referable to Arbitration to be determined by binding arbitration, either party may take whatever action at law it chooses to resolve the dispute.

25.4 If either party in accordance with clause 25.3(a) requires a dispute to be determined by binding arbitration, the following rules will apply in respect of that arbitration: (a) the parties will endeavour to agree upon an arbitrator. If the parties have not agreed on an arbitrator within 21 days after the notice under clause 25.3(a) is delivered, either party may request the Institute of Arbitrators, Australia to appoint an arbitrator. (b) rules of evidence will apply unless the parties agree otherwise;

(c) subject to the terms of this agreement, the arbitrator may determine the process for the hearing of the dispute and is to act as quickly as possible;

(d) the fees and expenses of the arbitrator will be shared equally unless the arbitrator decides otherwise;

(e) the decision, award or determination of the arbitrator will be final and binding on the parties, subject only to a right of appeal on matters of law;

(f) notwithstanding anything else in this agreement, the arbitrator shall not have power to prevent or restrain, whether by interlocutory or other injunction or otherwise, TAB: (1) giving effect o a direction of the Minister; (2) terminating an Agency Agreement where that termination would not breach an express terms of this agreement; or (3) closing the Agency in circumstances where that closure would not breach an express terms of this agreement; and (g) except as set out in this clause 25.4, the provisions of the Commercial Arbitration Act will apply to the arbitration.

"Dispute Referable to Arbitration" means a dispute between the parties to this agreement where the only matters or causes of action for determination are:

(a) the interpretation of the express terms of this agreement; or

(b) the enforcement of the express terms of this agreement, including without limitation: (1) obtaining remedies for a breach of an express term of this agreement; and

(2) requiring a party to pay amounts payable to the other party under the express terms of this agreement. For the avoidance of doubt, any dispute in which there are matters for determination other than matters set out in (a) and (b) is not a Dispute Referable to Arbitration.

21 It was estimated in the evidence of Mr Laird for the Association that approximately 49% of TAB agents have signed the new agency deed. He contended that the reasons provided by agents to the Association for their having signed the new agency deed included: (a) fear and concern over the lack of security of tenure; (b) lack of choice given to a newly appointed agent; and (c) there would be no increase in remuneration unless they signed the new agency deed. 22 The evidence of Grant William Goldsworthy, the Retail Manager - Agencies, of the TAB expressed a concern that one particular agent had indicated that he had signed the new agency deed after feeling pressured to do so. He was unaware of that instance but was aware of another in which he returned the signed agency deed to the agent, not wishing to accept it in circumstances where the agent felt pressured. He requested the agent to reconsider the new agency deed offer when he felt comfortable to do so. He also identified the financial benefits which flowed under the new agency deed to the agent earlier referred to.

23 This evidence establishes that so far as the new agency deed is concerned, the TAB has adopted a position of providing agents with little option: they either accept the lack of security inherent in an arrangement terminable on one month's notice or the terms of the new agency deed unilaterally offered by the TAB. It is this situation to which the summons for relief, and the motion, are directed.

24 The real issue for determination in relation to the motion is the power of the Commission to grant interlocutory relief of the kind sought. Because the summons seeks to perpetuate pre-existing circumstances, there is not much that needs be said in favour of the merits attaching to the issues on the motion. The intention is to preserve the status quo pending the hearing and determination of the summons. If there be power, there seems to me to be little room for doubting that justice would entitle the applicant on the motion to the interlocutory relief it seeks. However, power is a matter of some concern and I turn to that question.

25 The applicant's position was that the material before the court demonstrated the existence of a serious question to be tried and that on the balance of convenience an interlocutory order should flow in favour of the agents.

26 Referring to the judgments of Boland J in Selman v Sweet [2003] NSWIRComm 14, 7 February 2003, unreported and to Gough & Gilmour Holdings Pty Limited and ors v Caterpillar of Australia Limited and Anor (No 9) [2001] NSWIRComm 260, 23 October 2001 and also the judgment of Haylen J in Sea Acres Rainforest Centre Pty Ltd v The State of New South Wales (2001) 109 IR 56 it was submitted that the court has power to grant interlocutory orders if in any way the ultimate orders to be made, in response to the summons for relief, would be rendered less effective if the orders were not made. Mr Rothman sought to distinguish the line of cases such as Darvall v NZI Securities Australia Ltd (1990) 39 IR 215; Maharajah v 7 Eleven Stores Pty Ltd (unreported, IRC1150/97, Peterson J, 4 April 1997); and Gibson v Western Sydney Area Health Service [2000] NSWIRComm 13 as cases which turn more on the balance of convenience rather than the preservation of the effectiveness of final orders.

27 The point of concern is the distinction between the operation of the old agency deeds, which operated to provide an automatic renewal for a further two years, contrasting with the new agency deed which would provide the agreements do not continue in force at the expiration of their period of operation. In addition, a number of provisions in the new deed allow the TAB to terminate an agency on a number of identified grounds including, for example, any conviction under the Occupational Health and Safety Act 2000. These grounds were said to be capable of producing quite draconian effects, namely termination without compensation.

28 The TAB submitted that the court's jurisdiction with respect to interlocutory orders is confined to those aimed at preserving the jurisdiction of the court to enable orders to be made in the principal proceedings. Where there was a tension between the interlocutory orders sought and the orders sought in the principal proceedings it followed there should be a dismissal of the motion.

29 The substantive relief sought by the summons was identified as firstly declaratory as to the alleged unfairness of the new deed. Orders 2 and 3 seek the deletion of the new dispute resolution clause and the reinsertion of the old clause. Order 4 seeks an order pursuant to s107 to prohibit the TAB from entering into agreements with agents without their consent. Order 4(b) seeks an order that the TAB be prohibited from engaging in any conduct intended to induce members to enter into the new agency deed or similar agreement, including informing members they can continue to operate on a month to month basis on the existing terms and conditions or execute the new agency deed.

30 It was submitted that the motion seeks more than is sought by the summons for relief in seeking to prohibit the TAB from taking any steps to give effect to the termination of the right or ability of agents to operate their respective agencies. That goes beyond the old agency deed, cl.16(a)(i) and (ii) conferring on the TAB the right to terminate an agency during its currency on three months' notice if the agency was no longer profitable. There are other provisions to like effect.

31 As I apprehend the position, the purpose of the motion is to ensure that while the Commission in Court Session undertakes the hearing and determination of the summons for relief, the TAB is to be effectively restrained from exercising any right of termination which was not available under the 1993 deed, together the 1996 amendment by a further deed.

32 It must be the case that were the TAB to give effect to a right of termination provided by the new agency deed or to foster the promulgation of that deed so as to confer upon it the right when the fairness of the contract is the central issue in the substantive proceedings, any agent suffering termination as a result could suffer the loss of the right to conduct an agency but in circumstances where the court might later avoid, at least in part, the new agency deed in the respect that it conveyed to the TAB that right of termination.

33 It was submitted that there is no evidence that any new deed was entered into by any of the agents without their consent. The evidence adverts to only one in 322 agents who express some reluctance, but nevertheless signed. It was also submitted that the balance of convenience lies with the respondent in offering the new agency deed to those agents who are holding over to after the expiry of their old agency deeds.

34 In reply for the applicant, it was submitted that the court should reject the argument that the balance of convenience lies with the respondent. The applicant is a registered organisation and it is not open to the TAB to argue that the agents are better off and may be accepted to be so because of their entry into the new contractual arrangements. There is evidence of complaints by members to the applicant association, which is to be preferred over the TAB's suggestion that it has received a paucity of complaints. That difference is no more than what is to be expected.

Consideration 35 A convenient starting point for consideration of the relevant law surrounding the court's jurisdiction with respect to interlocutory orders in s106 proceedings is a useful summary set out by Boland J in Selman v Sweet [2003] NSWIRComm 14, 7 February 2003 unreported: 9 It is well settled that this Court has the power to provide interlocutory relief to protect its processes including that any final order that may be made will not be frustrated or put at nought: see in particular Darvall v NZI Securities Australia Ltd (1990) 39 IR 215; Maharajah v 7 Eleven Stores Pty Ltd (unreported, IRC1150/97, Peterson J, 4 April 1997 ); Gibson v Western Sydney Area Health Service [2000] NSWIRComm 13 ; Kenoss Contractors Pty Limited v Allied Constructions Pty Limited (No2) (2001) 104 IR 66. According to these cases, however, the power in the Court to grant injunctive relief is quite circumscribed.

10 In Darvall Hungerford J found there was no jurisdiction to grant interlocutory relief in the form of an order restraining a respondent from selling a property the subject of a collateral arrangement with the applicant where such a sale would not frustrate the court's due process in considering final relief. Hungerford J found that the Court did have power to make Mareva orders but only because of their "very special nature". In Gibson Peterson J said that the scope for making interlocutory orders under s 106 did not extend to orders directed at maintaining the status quo pending a final hearing where the final orders that might be made would not be frustrated if the interim relief was declined. Wright J in Kenoss followed the approach in Gibson .

11 In Sea Acres Rainforest Centre Pty Ltd v The State of New South Wales (2001) 109 IR 56 Haylen J expressed the view at par [49] that "an interlocutory order will be made if a party takes some step which will render less effective any judgment or order which may be obtained or to overcome any attempted thwarting of the Court's process." This appears to be a broader test than that propounded in the Darvall , Gibson and Kenoss line of cases and it seems to me Haylen J considered that if it was necessary to ensure the effectiveness of any final order by preserving the status quo an injunction may issue for that purpose. In Sea Acres Haylen J said: It is far too early in these proceedings to decide that the making of an order for the payment of money is the most appropriate order in this case such that a protective order to preserve the whole of the Court's jurisdiction should not issue. In this case it would be highly unsatisfactory to refuse the applicants' interlocutory order thus effectively reducing the width of the Court's jurisdiction to make suitable orders at the conclusion of the evidence, if such orders are justified. ...

If an interlocutory order is not made preventing the respondent from giving full effect to the Notice to Quit then a significant part of the Court's jurisdiction will be effectively removed from the reach of the applicants should they make out a case for final relief. The Court would be left with the only significant power being to order the payment of money in compensation for any unfairness found in the contract. Just as Marks J was able to say in Bowker , I am of the view that money may not satisfactorily recompense these applicants and the business for any damage done to their reputations because of the manner in which they are sought to be removed from the operation of the Centre. The nature of the damage in the two cases is clearly different but the element of damage to business reputation is a relevant factor in the present case.

12 In Sea Acres the applicants sought the variation of a lease and Deed of Assignment and/or the creation of a new lease with certain protections to the applicants written into it in circumstances where the arrangement between the parties continued. In the alternative the applicants sought compensation. In light of Haylen J's finding that it was too early to decide that the making of an order for the payment of money was the most appropriate order such that a protective order to preserve the whole of the Court's jurisdiction should not issue, his Honour made an order restraining the respondent from taking any steps to give effect to the Notice to Quit until further order of the Court.

13 An important consideration in Sea Acres was that in light of the relief sought by the applicants, Haylen J was not satisfied that an order for the payment of money in compensation for any unfairness found in the contract would be an adequate remedy and that "If an interlocutory order is not made preventing the respondent from giving full effect to the Notice to Quit then a significant part of the Court's jurisdiction will be effectively removed from the reach of the applicants should they make out a case for final relief."

14 In the present case the primary relief sought by the applicants is compensation for the alleged unfairness. That is, that the first, second, third and fourth respondents pay $2,000,000 to each applicant and that these respondents be jointly and severally liable for any order that money be paid to the applicants. Under Haylen J's approach, it seems to me that the applicants would still have to satisfy the requirement that in order to achieve an interlocutory order restraining the respondents from seeking to have a Receiver appointed, it was necessary to show that unless the order was made any final order would be rendered less effective or the Court's processes would be thwarted. In other words, given that the primary relief they seek is compensation, the applicants would have to show that if an interlocutory order restraining the respondents was not made there was the very real prospect that any order granting the applicants' money claim would be rendered nugatory.

15 In Collison v Hewston (2001) 103 IR 403 I expressed the view at par [39] that the Court, as a superior court of record, albeit a statutory court, had a general power to grant interlocutory relief incidental and necessary to the exercise of the jurisdiction or powers conferred on the Court by the Industrial Relations Act 1996. The reference to "incidental and necessary" is derived from the judgment of the Full Court of the Federal Court in Parsons v Martin (1984) 5 FCR 235 at 240-241:

In our opinion a Court exercising jurisdiction conferred by statute has power expressly or by implication conferred by the legislation which governs it. This is a matter of statutory construction. We are of the opinion also that it has in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred. In view of the way in which the phrase 'inherent jurisdiction' is used in many of the cases, it seems advisable generally to avoid the use of it to refer to this incidental and necessary power of a statutory court.

16 Taking the broader view, reflected in the judgment in Collison v Hewston, of the Court's power to grant interlocutory relief the question becomes whether it is incidental and necessary to the exercise of the Court's powers under s 106 to make an order restraining the first, second and third respondents from approaching the Supreme Court to appoint a Receiver?

17 In taking this approach it may be seen that I reach the same point of consideration as if the approach in Sea Acres were to be taken, namely, is it necessary to make the interlocutory order sought by the applicants to ensure any final orders under s 106 are effective?

18 An affidavit of Robert Ronald Stevens was tendered by the applicants. The affidavit referred to the consolidated accounts of the partnership for the year ended 30 June 2002. The accounts showed that total assets were $4,438,741 (including property, plant and equipment valued at $4,395,818) and total liabilities were $2,401,305 leaving net assets at $2,037,436. The applicants' summons for relief stated that the Hotel was said by the respondent's solicitors to be worth $9,000,000 although no proper valuation of the Hotel was in evidence.

19 Whilst the net assets of the partnership of $2,037,436 would not meet the applicants' claim (if that were the amount available to meet any final order after the Receiver had done its work), there was no evidence of the respondents' personal assets and no indication on the evidence that, even if a Receiver was appointed and wound up the partnership in the usual manner, that the respondents could not meet any money order in the applicants' favour. The applicants at least carry the onus of showing there is a real prospect that the respondents could not meet any final order if unfairness were found. It is not for the Court to assume they could not. The applicants have not satisfied me that there is a danger that the respondents would default on any final order and it, therefore, does not appear to me that to ensure the integrity of any final order it is necessary to make the interlocutory order sought be the applicants. Consequently, I consider that I do not have the power to make the interlocutory order.

20 In Jackson v Sterling the High Court was concerned with the Federal Court's power to make orders requiring the appellant to "provide security in the sum of $3,000,000". In that case the majority held that the Federal Court had the power to grant relief in the nature of a Mareva injunction but that orders to provide security in the sum of $3,000,000 "fall in a different category to any interlocutory order for the preservation of assets" (per Deane J at 624). His Honour, who delivered the leading majority judgment, said at 624: If the order had been restricted to injunctive relief preventing the appellant from disposing of so much of that $4.3m. (or the assets representing that money) as remained in his possession, it would have clearly been within the powers of the Federal Court under s 23 of the Act.

21 Deane J held that the security orders were beyond power. At 625 his Honour said: There are three related grounds upon which these combined orders are susceptible of attack. First, they required the appellant to pay into court not money identified as being within his possession but money which he was required to provide or obtain regardless of source. Second, they go beyond a mere order for the preservation of assets pending judgment or execution in that they specifically required that the money be paid into court as "security". Third, they failed to identify either what the money paid "to any Registrar" was to secure or what the entitlement of the appellant (or any one else) was in relation to it after it has been so paid. Put in positive form, it appears to me that, when an order for the preservation of assets goes beyond simply restraining the defendant from disposing of specific assets until after judgment, it must be framed so as to come within the limits set by the purpose which it can properly be intended to serve. That purpose is not to create security for the plaintiff or to require a defendant to provide security as a condition of being allowed to defend the action against him. Nor is it to introduce, in effect, a new vulnerability to imprisonment for debt, or rather for alleged indebtedness, by requiring a defendant, under the duress of the threat of imprisonment for contempt of court, to find money, which he may or may not have (whether or not at some point of time it may have been available to him), to guarantee to a plaintiff that any judgment obtained will be satisfied. It is to prevent a defendant from disposing of his actual assets (including claims and expectancies) so as to frustrate the process of the court by depriving the plaintiff of the fruits of any judgment obtained in the action.

22 It is clear from Jackson v Sterling that an asset preservation order must come within the limits set by the purpose which it can properly be intended to serve. That purpose is not to require a defendant, under the duress of the threat of imprisonment, to find money that he may not have to guarantee to a plaintiff that any judgment obtained will be satisfied.

23 By analogy, what the applicants seek to do here is to preserve the assets of the partnership in order to guarantee that any judgment will be satisfied. They seek to do this by restraining the respondents from approaching the Supreme Court to appoint a Receiver. However, it seems to me that such an order goes well beyond what might be necessary to ensure that any final order under s 106 would be met. The effect of the order would be to restrain the respondents from exercising their legal right to have a Receiver appointed to wind up the affairs of the partnership for the period it takes to determine the application under s 106. That is, for the relevant period the respondents would be denied access to any of the partnership assets that may rightfully be theirs. Thus, to grant the interlocutory order would do more than simply ensure any final order could be satisfied, it would also adversely impact, significantly, on the legal rights of the respondents. This would be in circumstances where it has not been demonstrated to the Court that even if a Receiver deals with the partnership assets in the usual way, there is a real prospect that any final orders under s 106 may not be satisfied.

24 Assuming that there is power to grant the order sought by the applicants, the question becomes one of whether the Court should exercise its discretion to do so. In considering this question the analogy between what the applicants seek in these proceedings and applications for asset preservation orders is, I believe, a legitimate one. And, in that respect, I note in exercising the discretion to grant relief in the nature of a Mareva injunction, it is to be done with great prudence and a predisposition against the making of an order: Hospital Products Ltd v Ballabil Holdings Pty Ltd [1984] 2 NSWLR 662 at 688.

25 A discretionary consideration against granting the applicants' order is that it is open to the applicants, upon any approach by the respondents to the Supreme Court to have a Receiver appointed, to seek to place some constraints on the Receiver in finally determining the respective entitlements to the partnership's assets. I acknowledge that the Commission in Court Session has exclusive jurisdiction in relation to matters arising under s 106. But that is not to preclude the applicants, in any proceedings in the Supreme Court, from pointing out the fact that there are proceedings on foot pursuant to s 106 and that this should be taken into account. It may be relevant, for example, in any consideration by the Supreme Court as to the appointment of a Receiver that s 109 of the Industrial Relations Act requires that the Commission "must endeavour, by all means it considers proper and necessary, to settle a matter under this Division by conciliation".

26 I turn to the traditional tests governing the grant or refusal of injunctions identified by Mason ACJ in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153. Firstly, it was acknowledged by the parties that there exists a serious dispute between them as to their respective entitlements to the assets of the partnership and the applicants' entitlements as employees of the fourth respondent. I consider there is a serious question to be tried.

27 As to the second test, namely, whether the applicants will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted, I am not satisfied that this test has been met. There is no indication on the evidence that damages would not be adequate compensation. The applicants have contended that they may not obtain any damages, or sufficient damages, if the Receiver is appointed. But as I found earlier, I am not satisfied this would be the case.

36 I would observe that Collison v Hewston (2001) 103 IR 403 (referred to in par. [15] of Boland J's judgment in Selman) was a case which seems to me to be distinguishable from those arising under s106 or, alternatively, expresses an opinion contrary to a line of established authority. The discussion in Collison of the views taken by a number of members of the court in s106 cases (that the power to grant interlocutory relief is very much circumscribed), occurred in the context of a search for an alternative source of power to that which was primarily relied on by the applicant for orders in Collison, namely s247(7) of the Act. Ultimately, Boland J made an interim order pursuant to that specific statutory power and thus found it unnecessary to rely upon any "incidental and necessary" power to grant an interlocutory injunction. Accordingly, the expression of opinion was not central to the relief granted.

37 In Sea Acres, Haylen J expressed the view, quoted in the above extract from Selman, that it was far too early to conclude that money orders would be sufficient and thus it would be highly unsatisfactory to reduce the width of the court's jurisdiction to make suitable orders by refusing the interlocutory orders sought.

38 Mr Rothman also relied on the judgment of Boland J in Gough & Gilmour (No 9). However, as Mr Rothman put, that matter seems to have had its own history. As that judgment records, the first applicant, a corporation wholly owned by the second and third applicants, Messrs Gough and Gilmour, conducted the Caterpillar dealership in New South Wales and the ACT from early 1989. In 2000 the business was employing 800 employees and had a sales revenue of $360,280,000. On 8 June 1999, the Managing Director of Caterpillar, the first respondent, advised the second applicant, Mr Gough, that the relationship between the parties was over and that he should sell his shares in the business. Negotiations to that end with the West Australian operator of a Caterpillar dealership were unsuccessful and on 26 October 2000 Caterpillar gave 90 days' notice required to effect a termination of the dealership agreement. The next day the applicants filed a summons for relief under ss106 and 107 of the Act. The parties agreed to an extension of the notice period until October 2001. On 23 October 2001 Boland J determined to make orders, the effect of which would be to keep the dealership agreements on foot until further order. That order has had, as I understand it, the effect that Gough & Gilmour remain in the dealership in 2003 but in circumstances where, by judgment given on 4 June 2003 ([2003] NSWIRComm 173), his Honour determined that a fair and reasonable period of notice to determine the relationship would be six months.

39 Accordingly, the applicants achieved something like two years and nine months retention of an arrangement which it was held ought, in fairness, be terminable on six months' notice.

40 While that case is incomplete, and it is inappropriate that I express any view about its outcome so far, there does seem to me to be an incongruity evident in the facts which I have extracted from its history, namely that the time which it takes to conduct complex litigation of this sort in this court may bestow on an applicant successful in an application for an interlocutory order preserving a contractual relationship, a windfall benefit at the cost, or partial cost, of the respondent and beyond that which would, an any view, be seen as fair.

41 Where an applicant seeks the retention of a relationship with the respondent but has suffered, or is at risk of, its termination pending the finalisation of the matter, the particular relief sought would be rendered unattainable. However, that is precisely the issue, in certain factual circumstances, which has been considered in the line of authority in this Commission referred to in the extract from Selman. The refusal of an order preserving the status quo, or the contractual relationship, pending the final outcome of the proceedings, would mean the likely form of relief available would be confined to an order for the payment of money.

42 On one view there is a clear split in the approach adopted in the line of cases culminating in Kenoss Contractors Pty Limited v Allied Constructions Pty Limited (2001) 104 IR 66 per Wright J and the approach taken by Boland J in Collison v Hewston and Gough & Gilmore (No 9) and Haylen J in Sea Acres. The question arises whether it is possible to reconcile the decisions in Collison and Sea Acres with the previous line of authority.

43 What is central to the reasoning in those two cases (in Collison on the point I have suggested was not central to the relief there granted) is that the power of the Court extends to ensuring final relief will not be frustrated, and that an order may be made to protect the court's jurisdiction. Those two statements may be accepted on their face as correct, in my view, but both of them derive from authorities dealing solely with Mareva-type injunctions: see for example Jackson v Sterling Industries Limited (1987) 162 CLR 612; Patterson v BTR Engineering (Australia) Limited (1989) 18 NSWLR 319 and Cardile v LED Builders Pty Limited (1999) 198 CLR 380.

44 Those cases show that while originally conceived in the context of a fear of removal of assets from the jurisdiction, the disposal of assets within the jurisdiction, and also control of assets outside the jurisdiction, may be within reach of such Mareva-type orders (see Rogers A-JA in Patterson v BTR at 327.F and Kirby J in Cardile v LED Builders at 421). Hitherto, apart perhaps from the judgment of Marks J in Geoffrey Bowker and Anor v Software Engineers Australia (NSW) Pty Ltd & Ors [2002] NSWIRComm 135 which was concerned with limiting the publication of detrimental information, and the judgment of Maidment J in Teletech International Pty Ltd v Medical Benefits Fund of Australia Ltd (No 2) [1998] NSWIRComm 535, the correctness of which was doubted but not decided in Kenoss, the types of interlocutory orders made by the court have been limited to Mareva-type orders although in Maiden v New Zealand Natural Pty Limited (unreported, 20 June 1997 - Matter No IRC109 of 1997), as I will show, Hungerford J held the jurisdiction was not limited to such orders.

45 Just what the power will extend to seems to me to remain an open point. In Maharaj v 7 Eleven Stores I expressed the view that the scope of the Court's power is not "conditioned or shaped by the nature of the relief sought", a view accepted by Hungerford J in Maiden. That was a case in which the applicant was seeking to remain as the franchisee in a 7-Eleven store where the respondent was seeking, pursuant to the contract, to terminate the relationship. It was not the applicant's desire to remain that raised power to make an interlocutory order. The Court found it was to determine the matter in an appropriate fashion, namely, by compensating the applicant suitably for his loss, should the contract be found to satisfy the statutory requirements. Jurisdiction could not, in those circumstances, be frustrated or put at nought. Similarly, the ordinary principles relating to the grant of interlocutory relief would answer the request for interlocutory relief on the same basis: compensation would be an adequate remedy.

46 Save, perhaps, for the situation where the applicant has a contractual right to remain, a right which the respondent is seeking to interfere with, an interlocutory order which has the effect of preventing the respondent from terminating a contractual relationship has some hallmarks of specific performance. I observe that Marks J in Logan and Ors v WorldAudio Limited and Ors [2003] NSWIRComm 87 in relation to an application for interlocutory orders restraining the termination of a consultancy agreement, referred to the comprehensive review of the relevant principles by Haylen J in Sea Acres and embraced and adopted the review of the authorities and the summation of the principles therein. However, his Honour declined to grant interlocutory relief in that matter for the reason that, although the parties to the consultancy agreement in issue were corporations, it would be tantamount to ordering specific performance of a contract of personal service. His Honour took the view it was more appropriate given the acrimony between the individuals on both sides to treat the relationship as having broken down.

47 It is now beyond argument, that the source of the power to grant interlocutory orders in the context of s106 proceedings, it not having been expressly provided in the legislation, is an implied, rather than inherent, power to grant orders to protect the court's jurisdiction (see the discussion by Haylen J in Sea Acres (at par. [49]) concerning the judgment of the High Court in Jackson v Sterling Industries and Handley JA in par. [214] of Mitchforce).

48 Jackson v Sterling Industries was a case concerning a Mareva injunction (or "asset preservation order" of a type now long recognised as available in an appropriate case under s106 - Selman was such a case). The purpose of such orders is usually either to secure particular assets or funds to ensure their availability to meet any final order made by the court in disposition of the proceedings. They are usually accompanied by an undertaking to the court as to any damage suffered by the responding party as a result of the injunction should the ultimate purpose of the proceedings fail.

49 There seems to me to be no basis for considering that the source of power to grant a Mareva-type order in s106 proceedings is any different or more limited in respect of orders of a different kind seeking the preservation of the status quo in a relationship between the parties pending the final hearing of the matter. The reconciliation of the seemingly conflicted views as to what may come within that power may lie in what Haylen J described in Sea Acres as a case in which ". . . damages are not an adequate or appropriate remedy as the pleadings and evidence presently stand". It seems to me that the termination of a contractual relationship, whether one of employment or one more akin to a commercial relationship under which work is performed, is always likely to be, perhaps necessarily, compensable with a money order. It is difficult to conceive, although I do not reject the possibility of, a situation where a money order would not be adequate compensation. Perhaps a useful illustration is Bowker where Marks J was concerned with damage to reputation potentially to arise from the publication by the respondent of certain facts which were put in issue in the s106 proceedings.

50 However, in Sea Acres Haylen J referred to compensation as being not "adequate or appropriate". Those terms are not synonyms and I consider the addition of the alternative of "appropriate" possibly goes beyond the scope of the relevant power.

51 If damages may be adequate compensation for the loss of a contract, to introduce the notion of appropriateness at the interlocutory stage requires one to consider whether it is better, in the applicant's overall interest, to leave the contract on foot, which diverts from considerations of compensation, which are the relevant considerations.

52 The purpose of the power to grant interlocutory injunctions was referred to by McLelland J in Appleton Papers Inc v Tomasetti Paper Pty Limited (1983) 3 NSWLR 208 at 216 by reference to what was said by Lord Diplock in American Cyanamid Co v Ethicon Limited (1975) AC 396: "My Lords, when an application for an interlocutory injunction to restrain a defendant from doing acts alleged to be in violation of the plaintiff's legal right is made upon contested facts, the decision whether or not to grant an interlocutory injunction has to be taken at a time when ex hypothesi the existence of the right or the violation of it, or both, is uncertain and will remain uncertain until final judgment is given in the action. It was to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved that the practice arose of granting him relief by way of interlocutory injunction; but since the middle of the 19th century this has been made subject to his undertaking to pay damages to the defendant from doing what he was threatening to do. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff's need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff's undertaking in damages if the uncertainty were resolved in the defendant's favour at the trial." (at 406 - emphasis added).

53 I emphasised the sentence in Cyanamid dealing with the object of the interlocutory injunction to be the protection of a right for which the plaintiff could not be "adequately compensated in damages recoverable in the action". This observation does not raise any consideration of appropriateness but rather only adequacy. This seems to me to be important in s106 proceedings which necessarily relate to contracts or arrangements which will always be terminable in an appropriate manner.

54 Further, to utilise mandatory orders to preserve a contractual relationship pending the hearing, would be more in the nature of specific performance, or an injunction to restrain a party from acting lawfully pursuant to his contractual rights. Where the statutory power of the Court includes avoidance of a relevant contract, or its variation, ab initio or from some other time, there seems to me ample power to ensure, at least in the usual case, that a money order under s106(5) will be able to adequately compensate in such circumstances.

55 Handley JA in Mitchforce (at par. [200]) recognises the limited express authority to grant injunctions conferred on the Commission by ss107, 207 and 356. Unless an injunction of another kind is supportable by some implied or inherent power to make such an order, it will be beyond power. The orders of Hungerford J requiring the grant of a new lease for 10 years at determined rent levels, were held to be outside power. Handley JA continued: 202 The Commission is a superior court of record (s 152(1)), but as a statutory court it only has the powers conferred on it, expressly or impliedly, by statute. In R v Forbes ex parte Bevan (1972) 127 CLR 1 the High Court held that the Commonwealth Industrial Court had no implied or inherent power to grant an ex parte injunction to prevent a de facto amalgamation of registered organisations and their funds. This is persuasive authority that the Commission had no implied or inherent power to make orders 11 and 12, whether they are characterised as orders for specific performance, injunctions, or simply as mandatory orders. Accordingly, subject to the privative clause in s 179, certiorari should go, but only to quash those orders, which are clearly severable. R v Arundel JJ ex parte Jackson [1959] 2 QB 89.

56 After dealing with the privative provision in the Act (s179) and the application of the principles in R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 as to the construction of such provisions (see par. [208] of the judgment of Handley JA), held: 214 The Commission has been given no power to order specific performance and only defined and limited powers to issue injunctions or mandatory orders. The orders in question are not reasonably capable of reference to those limited powers, and on their face go beyond them. In my judgment therefore the orders are not "reasonably capable of reference to any power" given to the Commission, and certiorari should go to quash them.

57 In a context where there is no power to grant specific performance it is, in my view, immaterial that the contract may be terminated, in the interim, always provided that an alternative money order may be made. That is usually the case with general interlocutory relief: the very principles applied contemplate that, if damages are an adequate remedy, then interim relief is refused.

58 However, on the question of jurisdiction, I think my position cannot be any better expressed than was by Hungerford J in Maiden but quoted (and referred to with approval) by Wright J in Kenoss at 78 also adopting some of what I said in Gibson as follows:

24 In the same month Hungerford J. delivered judgment in Edwin John Maiden and ors. v. New Zealand Natural Pty. Limited and anor. (unreported 20 June 1997 - Matter No. IRC97/109). After citing the above quoted passages from Maharaj , his Honour said: "As to the present case, I find the reasoning of Peterson J. directly applicable in leading to the conclusion that in the circumstances here the Court lacks jurisdiction to grant the injunctions sought. True it is that the applicants seek, a variation of the franchise agreement so as to enable them to remain in business on fair and reasonable terms; the whole thrust of the interim relief is clearly directed to securing that position pending the determination by the Court of final orders. However, and like Peterson J., I do not think the power to make orders under s.106 "is conditioned or shaped by the nature of the relief sought". For instance, in Darvall I held that there was no basis for the application of general equitable principles for the granting of injunctions in relation to proceedings under s.88F of the then Industrial Arbitration Act 1940 (and, hence, s.106 of the Industrial Relations Act 1996) as the section conferred no rights to have any particular factual situation or set of circumstances created or maintained for the purpose of the determination of the proceedings. My reasoning in that respect was as follows [1990] 21 N.S.W.L.R. 36 at 41-43; [1990] 39 I.R. 215 at 219-221: "Finally, in terms of the application of general equitable principles to the granting of injunctions in relation to proceedings under s.88F of the Industrial Arbitration Act , I respectfully agree with the judgment of McLelland J. in Bringmann v. Lend Lease Investments Pty. Ltd. ( McLelland J., 4 December 1979, unreported), which relevantly states (at p.4): "In my opinion, these considerations provide no legitimate basis for the grant by this court of injunctive relief. The principles of equity provide no jurisdiction for the grant of a final injunction to restrain acts which neither infringe some legal equitable or statutory right of the plaintiffs nor are otherwise unlawful. Although s.88F, assuming the plaintiffs can bring their case within its jurisdictional limits, may be accepted as conferring on the plaintiffs a right to have their application determined, it does not confer upon them any rights to have any particular factual situation or set of circumstances created or maintained for the purpose of the determination of that application. Conversely, there is nothing in s.88F which operates to alter the legal position of a respondent to an application or to render unlawful any acts of his at any time before an order is made thereunder. There is, in my opinion, no useful analogy between the circumstances of such a case as the present, on the one hand, and circumstances in which this court in proceedings before it will grant an interlocutory injunction in aid of or to protect a right to final relief which may ultimately be established in those proceedings, on the other hand." One may, it seems to me, readily distinguish cases such as Dickins and Wheeler where jurisdiction to make a Mareva injunction was found to exist on the basis, consistent with the reasoning in Darvall (ibid at 50; at 227-228) and as was stated in Wheeler (supra at 557; at 384), that an interim injunction may be made as "an order designed to prevent an apprehended action on the part of the respondents which, if not prevented, would or may frustrate the due process of the court by denying a successful litigant the right to receive the amount of orders which the court considers just and reasonable in all the circumstances of the case". In the case before me, the applicants have a clear remedy if they succeed in their substantive application for compensation by way of appropriate money orders in relation to the franchise fee, goodwill and loss of business opportunity if the Court were to grant either the primary relief of a variation to the franchise agreement or the alternative relief of avoiding it from its commencement. Therefore, the final orders which may be made in this matter would not be frustrated nor put at naught if the interim relief be declined. The motion for interlocutory injunctions must be dismissed for want of jurisdiction." 25 While the jurisdiction is not necessarily limited to orders equivalent to Mareva-type orders, the purpose of which is to prevent assets being disposed of or removed from the jurisdiction thus frustrating process, nevertheless this Court's jurisdiction seems to me to involve considerations of a similar kind. That is, the purpose and effect of the interlocutory order must not only be to ensure the potential effectiveness of, but be subsidiary to, the final relief. 59 I can envisage the possibility that a case may warrant interlocutory orders where an applicant seeks variation of a contract which is within its contractual term and where no apparent lawful basis for its termination exists. There the potentially unlawful act of the respondent may truly threaten the jurisdiction of the Court in the sense that the availability of relief by money may be inadequate.

60 It has only been in limited circumstances, such as Teletech, that the powers under s106 have been accepted as extending to the forced retention of a contractual relationship which one party wishes to bring to an end. Such terminations, whether involving notice in accordance with the terms of the contract, or elements of breach of those terms, or the assessment of appropriate notice, are always capable of compensation by money order. I can see no reason why the Commission in Court Session ought be thought to have, pursuant to s106, a power to compel the continuance of a contractual relationship in circumstances where one or other of the parties wishes it to end.

61 With these views in mind, it is necessary to consider the motion in the present matter. It follows from my conclusions that, to the extent the motion seeks to limit the TAB from taking action lawfully available to it under its contractual arrangements, the power to grant that relief is not available. However, when it is recalled that a primary objective of the summons for relief is to, in effect, reinstate the dispute resolution agreement operating under the old agreement, then the exposure to the risk of termination which is attendant only upon those agencies holding over under the old agreement, is not a potential problem. Those agencies are entitled to activate the dispute resolution procedure which remains applicable to them in their existing context. Thus, order 1(1) sought by the notice of motion is unnecessary.

62 Orders 1(2) and 1(3) concern a restriction upon the TAB entering any New Agency Deeds or similar without provision for a dispute resolution procedure of the 1996 kind and engaging in any conduct intended to induce members to enter into such an agreement. I think the judgment of the Court of Appeal in Mitchforce is fatal to that aspect of the summons. The quashing of the orders going to the execution of a new contract in that case and the observations of the Chief Justice in par. [119] seem to me to operate to say that the Commission's jurisdiction under s106 is, as the language of the section suggests, limited to the variation or avoidance of existing contracts. On that approach, the terms of the Old Agency Deed as they are applicable to existing agents would come within purview of final relief, as would the terms of the New Agency Deed as it relates to existing agents bound by it. The attempt by the motion to limit the parties entering into new agreements is a matter of a different kind.

63 Orders 1(2) and 1(3) both have the quality of orders with which s107 of the Act is concerned. That section is as follows:

The Commission, when making an order under section 106 or at a later time, may make such further order as the Commission considers appropriate for the purpose of prohibiting (either absolutely or otherwise than in accordance with specified conditions):

(b) any other person who is (in any way considered relevant by the Commission) associated with any such party,

(c) entering into any specified kind of contract whereby a person performs work in an industry, or

(d) doing any act (whether by way of advertising or otherwise) which may reasonably be construed as being intended to induce other persons to enter into any such contract.

An order under this section must identify the person or persons bound by the order and takes effect in respect of each such person:

(a) on service on the person of a copy of the order, or

(b) on publication of the order in a daily newspaper circulating generally throughout New South Wales,

64 It will be observed that orders 1(2) and 1(3) correspond almost precisely with the types of orders referred to in s107(1)(c) and (d). It is also clear from the opening words of s107(1) that orders of that type are authorised by the section only when making an order under s106 or at a later time. Accordingly, it would be premature to grant that relief on an interlocutory basis.

65 As to order 2, the effect of it would be to recreate, on a temporary basis, a dispute resolution procedure of the kind that operates under the Old Agency Deed. In practical terms, that could only affect those agents who are now parties to the New Agency Deed. It would be inserting into their contractual arrangements, albeit temporarily, a significant aspect of the final relief which the summons seeks.

66 In circumstances where, on the evidence, the agents bound by the New Agency Deed have voluntarily entered the new arrangements, as witness for which is the fact that some agents have declined to do so, I can see no reason why the Commission's jurisdiction would be frustrated were the parties to be left to their new arrangements pending consideration of whether or not those new arrangements are unfair in the statutory sense because of the absence of that provision.

67 In all of these circumstances, I consider the motion is bad for want of jurisdiction and/or merit, as I have developed. I would dismiss the motion.

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