[41] The second consideration was mentioned earlier in these reasons and is not unrelated to the first. Performance of work in an industry is the hinge about which s 106 turns. It is the arrangements (contractual and non-contractual) whereby a person performs work in an industry that the Commission may avoid or vary. That is, it is the arrangements (contractual and non-contractual) according to which a person performs the work (or in consequence of which or in fulfilment of which a person performs that work) which may be avoided or varied. And although the notion of "avoiding" an arrangement that is not enforceable may be awkward, determining that some new arrangement will obtain for the future (thus "varying" the arrangement) presents no such awkward juxtaposition of ideas. Further, to focus attention upon the arrangements whereby a person performs work in an industry, no matter whether the arrangement is found in the contract the parties have made or only in some related condition or collateral arrangement, sufficiently meets the need, identified by Barwick CJ in Brown v Rezitis [38], to recognise that these provisions of the Act have, as one important purpose, dealing with subterfuges which take workers outside the operation of industrial instruments intended to protect workers in an industry. At the same time, to read s 106 as hinged about performance of work in any industry and empowering the Commission to deal only with such of the arrangements between parties as can be described as a contract whereby a person performs work in any industry confines the jurisdiction of the Commission to declare a contract void or to vary it within bounds that leave intact the jurisdiction of the Supreme Court over other kinds of contractual obligations.
88 What was said by the High Court in Fish, of course, needs to be modified by the subsequent enactment of s 106(2)A of the Act which provides:
A contract that is a related condition or collateral arrangement may be declared void or varied even though it does not relate to the performance by a person of work in an industry, so long as:
(a) the contract to which it is related or collateral is a contract whereby the person performs work in an industry, and
(b) he performance of work is a significant purpose of the contractual arrangements made by the person.
89 This amendment was considered by a Full Bench of the Court in Caterpillar of Australia Ltd v Gough & Gilmore Holdings Ltd (2008) 170 IR 185. At [97] the Full Bench referred to the judgment of the Court of Appeal in Sin Yong Yim & Tae Sik Kim v Industrial Relations Commission of NSW & Hyun Sung (Marco) Choi [2007] NSWCA 77 in which Spigelman CJ explained why s 106(2)A was introduced as follows at [70] - [72]:
[70] The new s106(2A) was directed to this Court's reasoning that the context of the legislative scheme confined the power under s106(1) to aspects of a contract or arrangement which are "closely relate[d] to the performance of work" ( Solution 6 supra at [80] and [83]) or which relate in some reasonably direct manner to the performance of work (at [87]). The reformulation of the test in Solution 6 in the High Court differs from this formulation.
[71] Clearly s106(2A) is a new element which must be included in the context to which the High Court had regard when interpreting the reference to the performance of work as "the hinge" of the jurisdiction.
[72] This matter has not been fully argued. The case can be determined without considering the Claimants' alternative argument. Anything this Court would say would be obiter. The matter was not raised before the Industrial Court and this Court should not, as a matter of comity, consider the alternative basis on which the Claimants rely.
90 The Full Bench then referred to the Second Reading Speech introducing s 106(2)A (at [98]) and stated at [99]:
The effect of s 106(2A) was significant because, in permitting collateral contracts which did not relate to the performance of work in an industry to fall within the Court's jurisdiction, it overcame the limitations of s 106(1) in which the power to declare void or vary a contract or arrangement was held to be limited only to those parts of the contract or arrangement that were closely related to the performance of work in an industry, see Solution 6 at [95], McDonald's at [66], [81] to [84].
91 The respondents contend that the issue of the sales of trucks with work is a type of collateral arrangement which was not part of the contract by which work was performed in an industry and therefore cannot be the subject of a remedy in this Court. In my view, this characterisation is misconceived. The evidence is that the terms of the 1989 agreement, with the exception of the sale of vehicles provision, was carried over into the individual contracts of the owner/drivers and Toll. Taken together with the evidence as to the work performed by the owner/drivers pursuant to their contractual arrangements with Toll, in my view, the contracts were directly and intimately connected to the performance of work in the Road Transport Industry. Particularly, this seems to be the case when regard is had to the nominated driver provisions in the contracts. It directly involved either the owner/driver personally or, where the owner/driver was some legal entity, some principal person of the owner/driver's entity being directly involved in the performance of work pursuant to the requirements of Toll.
92 Mr Hatcher correctly, in my view, submitted that, in any event, the sale of vehicle clause was, even considered independently, intimately connected with the performance of work because, just like a notice clause, or termination clause, it determines a benefit or a set of arrangements beneficially to owner/drivers to operate when their work comes to an end. It follows, in my view, that there is a direct relationship made out and it is therefore unnecessary to have regard to the provisions of s 106(2)A. If I am wrong about this characterisation, s 106(2)A would operate to allow, in any event, a remedy to operate.
93 It was common ground that the 1989 agreement did not, as an industrial agreement in force under the relevant statute at the time, transmit to Toll upon the sale of the business by Brambles to Toll. It is trite law that a legally binding contract may be proved by what the parties said and did, as well as what they wrote: Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309, McHugh JA at 337 - 338. The evidence discloses that each of the owner/drivers understood and operated on the basis that the terms of the 1989 industrial agreement continued to operate as between them and Toll. There was no written contracts entered into between Toll and the owner/drivers. This is therefore a case where the terms of the contract need to be inferred from the dealings between the parties.
94 On 28 June 1996, Brambles entered into an agreement for the sale of business to Toll Holdings Pty Ltd and Toll Transport Pty Ltd. Clause 10.6 of the sale of business agreement provided that Toll would engage the owner/drivers on the same basis as they had been engaged with Brambles. Toll forwarded a letter to each of the owner/drivers on 25 June 1996, which stated that "under the sale arrangements between Toll and Brambles, the terms of your engagement with Toll will be no less favourable (than) those currently applied to you". Toll recognised the service of the owner/drivers with Brambles and acknowledged that any benefits they had accrued would be transferred. This letter was drafted by Mr Walters who, at the time, was the Human Resources/Employee Relations Manager with Toll and had been involved in Toll's acquisition of Brambles as part of Toll's due diligence activities in respect of this issue. In respect of this aspect of the matter during the course of the proceedings, Mr Moses made the following concession:
That it will be conceded by the respondent that at the time the carriers were provided with the pro forma letters that was set out in paragraph 8 of this witnesses evidence [Mr Walters] being the letter of 25 June 1996, there was no disclosure to the contract carriers that Toll had a policy on goodwill and the sale of goodwill and that the representation contained in that letter did not avert to that issue and the carriers wouldn't have known about Toll's policy at the time they made their decision, either expressly or by implication to come on board with Toll.
95 I therefore find that the terms of the individual contracts between Toll and the owner/drivers are inferred contracts which contain the same terms as those found in the 1989 agreement with the exception of cl 11, the Sale of Vehicle clause, which in light of the evidence and Toll's policy at the time could not objectively be inferred as being part of Toll's policy which meant that it could never have made a contract which contained a sale of vehicle clause and by its conduct it has never acquiesced in such a provision being part of its agreement with its owner/drivers. An alternative characterisation, which I am not attracted to because of Toll's conduct, is that cl 11 was incorporated into the owner/drivers contracts but that Toll used its discretion to refuse to allow any sales to occur. The evidence prevents me finding that Toll exercised its discretion for approval with respect to individual owner/drivers because it adopted a blanket policy in which no sales of vehicles could occur under any circumstances whatsoever. It follows that I must reject Mr Moses' urgings that any deviation from the terms of the 1989 industrial agreement in relation to the question of "sale of vehicles and goodwill" arose in 1999, at which time the alleged sale of goodwill was refused.
96 I turn to consider whether the contracts between the owner/drivers and Toll were unfair. It will be recalled that the applicant contends that the contracts were unfair because they did not contain terms which reflected, or were consistent, with the representation made by Toll to the owner/drivers that the terms of their engagement would be no less favourable than those applying at Brambles. However, such contracts did not contain a sale of vehicles clause, which they should have, if the representations were to be made good by Toll. The evidence establishes that the sale of vehicles practice was in place, known by Brambles, and formally acknowledged and agreed to between Brambles and the owner/drivers and was included in a registered industrial agreement. The sale of vehicle clause clearly conferred valuable rights on the owner/drivers, that being a capacity to effect what in substance, if not in law, resulted in an assignment of their position of contractual rights with Brambles. Brambles had a discretionary right of approval in respect of an assignment which was exercised by reference to the specific personal characteristics of the owner/driver but not by some reference to a broader policy in respect of goodwill.
97 Toll undertook a due diligence process in respect of the sale. Although Mr Walters said that he had a particular concern about goodwill and any liability thereof, in my view, the steps he took to investigate whether it existed at Brambles were totally inadequate. Mr Walters could not recall seeing the 1989 agreement which contained the sale of vehicle provision but was unable to deny that he had seen it. He acknowledged that other persons involved in the sale process may, or may not, have seen the 1989 agreement and accepted that someone with his knowledge and experience upon reading cl 11 would give rise to a concern in respect of a liability regarding goodwill. When pressed by Mr Riordan for a categorical assurance in respect of goodwill, Mr Walters declined to give such an assurance. Mr Walters in cross-examination said that Mr Riordan's statement refusing to give a categorical assurance that he was not aware of any goodwill arrangements at Brambles caused him concern and that he did not treat it as a sufficient answer. Mr Walters also disclosed in cross-examination that he communicated to either Mr Rowsthorn, the General Manager, or Mr McInerney, the Company Secretary of Toll that there had not been a complete assurance as to goodwill and he asked that there be a warranty that there were no such arrangements. Mr Walters made no further enquiries about goodwill of anyone at Brambles or any Operations Manager, or the owner/drivers themselves, or the TWU.
98 It is beyond doubt that had further enquiries been pursued it would have become clear that there was an authorised practice at Brambles under which sales of trucks with goodwill or a position in the yard occurred. In my view, and I find, that Toll had actual or imputed knowledge of the sale of vehicle practice at Brambles in light of the existence in the industrial agreement of a sale of vehicles clause and the value of the rights conferred by that clause and the resulting premiums that were paid. Toll either knew, or should have known, what the practice was at Brambles in respect of the sale of vehicles, particularly as both Mr O'Brien and Mr Hilton, who were aware of the sale of vehicles practice, were engaged by Toll in equivalent management positions to those that they had at Brambles. In my view, there is no basis to conclude that Toll was unaware of the sale of vehicles practice. It is against this background that Toll made the representation to the owner/drivers. Even assuming that the representation was not intentionally falsely made, in light of the evidence, it was made recklessly or negligently given the lack of assurances given to Mr Walters.
99 Furthermore, although the issue of goodwill was clearly a significant matter, Toll chose not to disclose its policy in respect of goodwill to the owner/drivers. A further aspect of unfairness was that the owner/drivers in 1996 were clearly in an inferior bargaining position in respect of Toll as Brambles had sold its business. Toll had purchased the business so that the owner/drivers were in a position whereby, if they wanted to keep their jobs and retain the hope of selling their trucks with work in the future, they were required to accept Toll's offer. Toll's conduct, particularly in light of the representation, no doubt, gave them comfort that if they accepted a position with Toll on their existing terms and conditions, including the ability to sell their vehicle with work, their arrangements would be maintained and protected. The result was that they did not sell their trucks and were engaged by Toll. Furthermore, they did not take any legal action against Brambles at the time, nor did they need, in their view, to take steps to negotiate contracts with Toll which might have in express terms protected their positions. Toll strictly maintained its policy on goodwill notwithstanding the representation it made and notwithstanding that it recognised the disparity between its own conduct, its policy in respect of goodwill and the representation it made. This policy was strictly adhered to, regardless of individual owner/drivers circumstances, such as those that Mr Felice found himself in when his wife passed away. Toll refused to alter its policy in respect of goodwill.
100 To the extent that the respondent contended that the applicant did not submit that clause 11 was unfair, it is unnecessary to deal with this submission in light of the findings that I have made that the contracts were unfair in that they excluded clause 11, despite the representations made to the owner/drivers at the time of the sale of business. Similarly, for the same reason, it is unnecessary to deal with the respondents' challenge to jurisdiction that the primary grounds of unfairness amount to allegations of a breach of contract and therefore the principles found in Sydney Water Corporation Ltd and Another v Industrial Relations Commission of NSW and Another (2004) 61 NSWLR 661 applied. Indeed, the respondents' evidence went so far as to deny that Toll had any contractual obligations to maintain the sale of vehicle arrangements.
101 In my view, Toll's purchase of the business from Brambles, and dealing with the owner/drivers as it did, allowed it to obtain a most substantial commercial windfall, which, measured in terms of the last sales of a truck in work which occurred in the 1990s (which ranged from $45,000 through to $67,000), was worth in total, approximately $600,000.
102 Of the nine owner/drivers who were engaged by Toll, for various circumstances, four have left the engagement with Toll and have been denied the opportunity to sell their trucks with work. The applicant seeks that their contracts should be declared void and monetary orders made in their favour. In respect of the remaining owner/drivers who are still engaged with Toll, the applicant seeks that their contracts be varied, as set out earlier in these reasons at [7]. In effect, the applicant seeks to resurrect, with appropriate protections, the sale of vehicle arrangements which operated at the time Brambles ran the business. This would allow the remaining owner/drivers to sell their trucks with work at an appropriate time and retain whatever price they could achieve on the market.
103 Toll strongly opposes such an order, submitting that it would operate unfairly and prejudicially against the respondents. Mr Moses submitted such an order would force Toll to forever permit (into perpetuity) "a trade in goodwill", even if it does not for operational reasons wish to engage owner/drivers. Senior counsel submitted that the Court should not sit in the managerial chair and force a corporation to operate its business in a manner which is clearly against its present operational intentions. Toll has not engaged any owner/drivers for a period of over a decade and the proposed variation would force Toll to alter its operational arrangements. Toll would also be forced to accept, as an owner/driver, any new person, subject only to the qualification that the person be able to perform cartage work and who had not previously worked in the yard.
104 In my view, Toll either knew, or should have known about the pre-existence of the sale of vehicle practice. The existence in the industrial agreement of a sale of business clause and the value of the rights conferred by that clause, resulted in premiums being paid when purchasing a truck with work. The position adopted by both Brambles and Toll in respect of the sale of vehicle practice gave both parties an unconscionable advantage over the owner/drivers. Toll, in not disclosing their practice of not recognising the sale of trucks with goodwill to the owner/drivers, resulted in both Brambles and Toll ignoring the investments which the owner/drivers had made in their vehicles to the detriment of the owner/drivers. Toll unconscionably departed from the representation which it had made that the owner/drivers would enjoy the same conditions as they had with Brambles. The benefit that Toll obtained was the services of the owner/drivers through a smooth transmission of the business on a totally false basis. In these circumstances, the owner/drivers should be compensated for what they were denied, that is, the right to sell their trucks with work in circumstances which were not lost to them. In considering a somewhat similar set of circumstances, Hungerford J in a separate judgment agreeing with Fisher CJ and Peterson J in Myer Stores Limited, t/as Grace Bros v Stowart and Others (1994) 55 IR 21 observed at 38 - 39.
... It is worth repeating, I think, the words of Sheldon J as to s 88F of the repealed Industrial Arbitration Act 1940 as the statutory predecessor of s 275, in Davies v General Transport Development Pty Ltd [1968] AR NSW (371)at 374: " it is a plain matter of morals not law ." To a like effect, Beattie J said of s 88F in Agius v Arrow Frankways Pty Ltd [1965] AR (NSW) 77 at 88: "... it is plainly designed to protect citizens from unfair and harsh dealing".
105 His Honour then referred to what Lord Mansfield said in Browning v Morris (1778) 2 COWP 790 namely: "... of protecting one set of men from another set of men, the one from their situation and condition, being liable to be oppressed or imposed upon by the other". I wish to state my agreement with these observations. Noting that the evidence discloses the owner/drivers paid varying amounts for goodwill, it does not seem to me to be appropriate that the applicant's claim that each owner/driver be awarded $75,000.00 for goodwill should be granted in the circumstances where each owner/driver has paid a different amount for goodwill.
106 Taking these factors into account in the exercise of my discretion, I do not propose to make the variations sought by the applicant to the contracts. However, in light of my finding that the contracts have operated harshly and unconscionably, the owner/drivers should be compensated for the loss of their rights to sell the trucks, or the goodwill component of their truck, by way of monetary order in the same manner as those that have already ceased their engagement with Toll.
107 In respect of the quantum of compensation, the loss for which a restitution order is sought, Mr Moses referred to the comments of Bauer J in Thomas Nationwide Transport Ltd (t/as "Altrans Bulk") v Thomas & Anor (1990) 34 IR 378 at 384 where his Honour stated:
There is no place in s 88F cases (a predecessor to s 106), as I see them, for a "concept of damages", or "solatium", or "loss of expectations" of profits or similar notions. Restitution seems to be the maximum that might be ordered to be paid and that only provided such a discretion is exercised having regard to the circumstances as is required by s 88F(2).
108 The Full Bench in Westfield Holding v Adams (2002) 114 IR 241 considered the question of whether, in determining compensation orders, reliance should be placed on the doctrine restitution in order to avoid excessive award or awards that did not adequately compensate an aggrieved applicant. After considering, in particular, the comments of Barwick CJ in Brown v Rezitis (1970) 127 CLR 157 (at 164, 170) and earlier decisions of this Commission's predecessor, the Full Bench stated at paragraphs [101] - [102]:
Restitution may be an appropriate approach where a franchisee has paid money for a franchise and the contract has been found to be unfair. But restitution, as a basis for compensation, is rarely relevant to contracts of employment found to have operated unfairly.
We do not think that Brown v Rezitis mandates an approach to the assessment of compensation under s 106(5) on the basis that restitution in the sense referred to, is to be the fundamental guiding principle. Restitution so understood may be appropriate in particular cases, but the fundamental guiding principle is that which is stated in the statute itself, namely, what is just in the circumstances of the case. In any event, the term restitution is at once ambiguous and a word of wide meaning. As Mason and Carter observe in their now standard text, Restitution Law in Australia , Butterworths, 1995 at 7:
"Where a legal order is made, there must not only be a point of reference for the order, there must be an objective. This is also a relative concept. The theme common to bases for legal liability is a process of adjustment. Here the ordinary senses of restitution are somewhat ambiguous, since restitution may refer to compensation for loss, or payment for a benefit, or restoration to a prior position or status."
... thus providing confirmation, if any were necessary, of the importance of adhering to the actual words of the statute. As for the proposition propounded by the appellant that it is only "actual loss" that is to be compensated under s 106(5), we fail to see how that can be derived from Brown v Rezitis . There were two elements in the formulation laid down by the Chief Justice in Brown v Rezitis. The first was restitution and the second was to "make remedial provision for what has taken place or been done under the contract in the meantime". It seems to us that this is a broader test than one that requires compensation for actual loss. We note the phrase used by Menzies J in Brown v Rezitis (at 170) where he referred to the requirement to "... recompense the worker for what he has lost". There is nothing, however, in the judgment of Menzies J to indicate that he regarded the power to make money orders under s 88F(2) as limited to compensation for actual loss.
109 It is the value of the capacity to sell a truck with work to an acceptable person at a price that the buyer is prepared to pay that has to be determined. Much criticism was made by the respondents' of the lack of probative evidence given by the owner/drivers in respect of the value of goodwill. I accept that the evidence given in respect of the value of goodwill, as at today's value, is worthless. However the evidence of what the owner/drivers paid for their trucks with work (goodwill) at the time of purchase is of probative value. Although similar applications have not approached the determination of quantum as an accounting exercise, but approached the question of quantum by having regard to what, in terms of history of the industry persons were prepared to pay, such an approach seems to me to be inappropriate in this case as the last sales were in the 1990s: see for example Myer Stores v Stowart & Ors; Darren John Palmer v TNT Australia Pty Ltd, Hungerford J, unreported, 15 March 1995; Zammit and Another v Trend Windows & Doors Pty Limited [2008] NSWIRComm 48; Transport Workers" Union of New South Wales (on behalf of Cruickshank Transport Pty Ltd) v Stegbar Pty Ltd [2007] NSWIRComm 244.
110 An examination of decisions of this Court and its predecessor determining truck and work cases disclose that the amount paid for goodwill was discounted in circumstances where the owner/driver enjoyed the benefit of above-award wages for some 18 months before they lost the benefit of the contract: Bradib Pty Ltd v Jilly Bean Pty Ltd & Anor (No 1) (1987) 21 IR 90. A similar approach was applied in Altrans by Bauer J and by Hungerford J in Darren John Palmer v Tnt Australia Pty Ltd (Trading As Tnt Express) [1995] NSWIRComm 243; [1995] NSWIRC 24 (15 March 1995). In Transport Workers' Union (on behalf of Steve Cincotta t/as S M Cincotta Pty Ltd and others) and Visy Board Pty Ltd [2005] NSWIRComm 178, the Contract of Carriage Tribunal affirmed that due regard must be paid to the earnings and profits derived by owner/drivers over a substantial period. In Myer Stores Ltd v Stowart, a matter with a not dissimilar background to this matter, the Full Bench upheld Cullen J's decision to award compensation on the basis of the value of the last truck sold in the yard. This decision was made in the context of Myer Stores outsourcing its entire transport services to Linfox, such that Linfox took the whole benefit of those contracts in a manner that was held to be unconscionable.
111 The respondents submitted that the Court ought to take into account the substantial earnings received by the owner/drivers over a long period and the fact that the existing owner/drivers are free to remain working for the first respondent, as long as they wish to do so, subject to their performance. It submitted a variation to make provision for a liquidated amount for goodwill of $75,000, or any amount, would be entirely at odds with the long line of authority commencing with Bradib. It was also submitted that such a decision would be at odds with what had been said by the Contract of Carriage Tribunal in Transport Workers' Union v Stegbar, where the Tribunal held that a premium income of $117,00 per annum should be amortised over a reasonable period of time with the amortised amount taken up annually as an expense against the business, thereby gaining the subsequent taxation concessions available for the business. In this way, the premium gradually decreases over the years of expected engagement and would ideally be zero when the contract ends, the Tribunal observed.
112 One of the difficulties in this case in determining quantum is that the last sales occurred in the 1990s, when the premium or goodwill price ranged from $45,000 to $67,000. More recently, owner/drivers were able to find prospective purchasers of their vehicles, including goodwill, but because of Toll's policy, such sales were not completed. The evidence discloses Mr Drakopoulos was offered $75,000, Mr Felice $71,000 and Mr Whitton, approximately $90,000, although Mr Whitton had a much larger truck, being a semi-trailer. However, as I have already observed, this evidence is worthless. The determination of quantum has been impeded by the failure of the applicant to call accountancy evidence. Doing the best I can, therefore, the approach that I propose to adopt amounts, in my view, to a proper assessment of compensation. My determination is that each of the owner/drivers should receive, by way of compensation for goodwill, the amount that they initially paid for the goodwill, or where such a figure is not available, the average of what was paid by all the owner/drivers. In reaching this conclusion that the owner/drivers should be compensated by the amounts they paid for goodwill, I have been mindful that the value of money has changed since the 1990s. However, this determination seeks to take into account that the owner/drivers have received reasonable earnings over a significant period of time and some of the owner/drivers will continue to receive such earnings as long as they wish to remain with Toll. It follows that I do not find that an averaging approach as submitted by Mr Hatcher is appropriate. This would result in the following compensation to be paid to the owner/drivers:
· Mr Victor De Angelo $45,000.00
· Mr Wayne Kennett $42,000.00
· Mr Bill Marcinasko $40,000.00
· Mr Dominic Lamacchia $18,000.00
· Mr Nick Kouverianos $56,500.00
(being the average of what he contended he paid for goodwill)
· Mr Carlos Ferreira: $55,000.00
· Mr James Novack $25,000.00
· Mr Len Felice $67,000.00
· Mr Francis Whitten $43,562.00
(being the average of the total amount paid by all the owner/drivers in respect of goodwill).
113 Mr Moses submitted that in the event that I found in favour of the applicant, no order could be made in respect of James Novack, whose business was incorporated in 2002 as Transco Holdings Pty Ltd, because the evidence before the Court was that Transco had been deregistered. Mr Moses submitted that proceedings cannot be maintained by or on behalf of a company that is deregistered: Mikhail Distribution Services Pty Ltd v Australia Post [2004] NSWIRComm 235. Senior counsel submitted that there was no basis upon which the Court could vary a contract where one party no longer exists, nor could it award compensation to a non-existent party.
114 The amended summons pleaded that the first respondent engaged James Novack (initially directly, and from 2002, through his family company Transco Holdings Pty Ltd), as a carrier in its Toll Express business at Smithfield until August 2004, when it was agreed that his contract with the first respondent would be varied so that he would work as an employee/driver, rather than as a carrier. On the face of the pleadings, Mr Novack and Transco Holdings Pty Ltd were the contractual parties. It can be inferred that the first respondent permitted an assignment from Mr Novack to Transco Holdings in 2002. The respondents, in their reply to the amended summons, admit that the first respondent received the services of Mr Novack as a sole trader until 2002 and from 2002 received Mr Novack's services as a contract carrier through Transco Holdings Pty Ltd in its Toll Express Division until about August 2004, when Mr Novack and the first respondent agreed that Mr Novack would be employed as an employee driver.
115 It seems to me that it is clear that there is a contract before the Court which, until 2002, had Mr Novack as a party. That contract I have found to be unfair on the basis that it did not contain a provision consistent with the representation made in 1996.
116 In any event, a review of the authorities makes clear that the fact that a company is deregistered is no impediment to the making of an order with respect to Mr Novack. In Visalli v Southwell and & Ors (1988) 12 NSWLR 502, the Court of Appeal considered the jurisdiction of the Commission to order the joinder of parties to proceedings before it. Kirby P (McHugh JA agreeing) observed at 507:
The jurisdiction of the Industrial Commission to make an order or award under s 88F of the Act does not depend, in terms of that section, upon the presence before the Commission of particular parties. The Commission's jurisdiction attaches if it is shown that there is a "contract or arrangement or any condition or collateral arrangement relating thereto whereby a person performs work in any industrial [...]. The power of the Commission to make an order or award for the payment of money is one expressed by s 88F(2), in wide terms. It is not limited, in the language of the subsection to the parties before the Commission. All that is required is that the payment should be made "[...] in connection with any contract, arrangement, condition or collateral arrangement declared void [...]". That said, there are necessarily other restraints upon the making of orders against persons no parties. They include the requirement of natural justice, that before any such order should be made affecting or purporting to affect a person, such a person should have the opportunity to be heard: see Brown v Resitis (1970) 127 CLR 157 at 164.
117 Priestly JA, at 511 stated:
There is no restriction in the section [s 88F] limiting the persons who may be the subject of orders made under it. It is settled that the operation of the section is not limited to persons who are in law the parties to the contract or part of which is in question in an application under the section. Any person who can reasonably be thought to have a real connection with the contract is within the Commission's jurisdiction under the section.
118 The making of monetary orders or other orders is not confined to the parties to the contract but can be extended to anyone with a real connection with the contract. That extends not only to the person to whom orders may be made against but also to a person in favour of whom the order is made. In my view, the fact that Transco Holdings is deregistered is not an impediment to the making of an order in respect of Mr Novack. The real connection is clear.
119 Firstly, Mr Novack was a person who performed actual work during the course of the contractual engagement. Secondly, evidence tendered by the respondent (the Australian Securities and Industries Commission search) identifies Mr Novack prior to the deregistration of the company as a director and shareholder. Mikhail stands for nothing more than if a person or entity is deceased or does not exist, it cannot be a party to proceedings. In Mikhail, Marks J dealt with a strikeout application in circumstances where, prior to the commencement of proceedings, the sole director of the applicant, Mikhail Distribution Services Pty Ltd, took steps to have the applicant deregistered. This meant that at the time the proceedings were commenced, the applicant did not exist as a legal person. Not surprisingly, his Honour held that the proceedings were a nullity and struck them out.
120 The same position does not obtain with respect to a contract for which an entity which no longer exists applies where the entity is neither the applicant or some other party to the proceedings. In Alexander Stuart Liddon v James Leslie Comino [2007] NSWIRComm 136 Haylen J found that the deregistration of a company which is a party to the contract, only endangers the proceedings as a whole where the company is an applicant to the proceedings. It does not serve as an impediment to a company that is deregistered for relief being granted in respect of a contract of which that company was a party. Kavanagh J came to a similar conclusion in Jeffery Search & Anor v Prominade Properties Pty Ltd t/as SAS Marketing and Ors [2001] NSWIRComm 86. This case also demonstrates that where a party to a contract is deregistered, that does not preclude relief being granted in respect of the contract. I respectfully agree with their Honours' reasoning.
121 The respondents have requested that the issues of interest and costs be reserved and that the parties have liberty to apply in respect of these matters following judgment. The proceedings will be listed for a directions hearing at 9.30 am on Monday 20 April 2009 so that the parties may be heard in relation to these issues.
ORDERS
122 The Court makes the following orders and declarations: