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.