Victor Lahoud & Ors v Joseph Lahoud & Anor

APPLICANTS: Mr J Trew QC with Mr J Murphy of counsel SOLICITORS: Tillyard & Callanan Mr M Callanan LEGAL REPRESENTATIVES: RESPONDENTS: Mr F Lever of counsel SOLICITORS: Haywards Solicitors Ms P Costigan

JUDGMENT: 41 INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

VICTOR LAHOUD & ORS v JOSEPH LAHOUD & ANOR Application under s 106 of the Industrial Relations Act 1996.

JUDGMENT RE NOTICE OF MOTION [2002] NSWIRComm 182

1 This judgment deals with a Notice of Motion filed on 22 November 2001 by Joseph Lahoud (the first respondent) and by Joseph Lahoud & Associates Pty Limited (the second respondent), ("the respondents") ("the Joseph interests") to matter no IRC 7189 of 2001. 2 Matter no IRC 7189 of 2001 is a summons for relief pursuant to s 106 of the Industrial Relations Act 1996 (the 1996 Act) filed on 5 November 2001 by Victor Lahoud (the first applicant), Castle Constructions Pty Limited (the second applicant) and Solidare Pty Limited (the third applicant) ("the applicants") ("the Victor interests"). 3 In brief, the relief sought was the avoiding ab initio of Terms of Settlement dated 6 February 2000 [sic] (2001) made between the Victor interests and the Joseph interests in settlement of an application, matter no IRC99/282 brought under s 106 by the Joseph interests against the Victor interests. 4 Victor Lahoud is the older brother of Joseph Lahoud. Rather than always being referred to by their status as either applicant/respondent to the Motion or respondent/applicant on the Motion, they are also referred to respectively as, Victor and Joseph, and/or the Victor interests and the Joseph interests, a course adopted by counsel in the proceedings. 5 The Notice of Motion filed by Joseph on 22 November 2001, which Motion is the subject of this judgment, seeks orders that the summons for relief in matter no IRC 7189 of 2001 be struck out and that Victor pay Joseph's costs on an indemnity basis. 6 It is necessary to set out the background in some detail in order to understand the competing relief sought by Victor and Joseph. Background Matter No IRC99/282 (the "1999 proceedings") 7 On 25 January 1999, Joseph Lahoud (Joseph) (the first applicant) and Joseph Lahoud & Associates Pty Limited (the second applicant), (the applicants), filed a Summons for Relief (IRC99/282) under s 106 of the Industrial Relations Act 1996 (the 1996 Act) against Victor Lahoud (Victor) (the first respondent), Castle Constructions Pty Limited (the second respondent) and Solidare Pty Limited (the third respondent), (the respondents). 8 Orders were sought to vary the impugned contract, arrangement etc, so as to require the respondents to pay or transfer to the applicants one half, or any other share that the Commission considered just in the circumstances of the case, of the profits of and relating to the projects referred to in the affidavit made by the first applicant on 25 September 1998 (the share is called "the applicants' share" and the projects are called "the Projects") together with the payment of money in the amount of the applicants' share, interest and costs. 9 Conciliation pursuant to s 109 having been unsuccessful, the matter was eventually set down for hearing over 10 days, commencing 5 February 2001. 10 Before the hearing formally opened in court on that day, the parties requested time to confer. That request having been granted, conferences between them occupied that day and continued all the following day. Very late on that second day the Court was told that the matter had been settled and was asked to convene in order to be formally advised of that outcome. The transcript of that occasion is set out in full below: WEST: Firstly, I should thank you for allowing the parties the time for talks. Those talks have been successful. An agreement has been reached between the parties and effectively negotiated by the brothers with each other. The effect of that agreement is, relevantly, that your Honour should dismiss the proceedings with no order as to costs, the terms of the agreement otherwise between the parties. HOLMES: There is nothing I wish to add. HER HONOUR: The Commission, by consent, dismisses the proceedings and makes no order as to costs. May I say that the statement made that the grievance [sic] [agreement] was effectively negotiated by the brothers themselves is to me one of the happiest outcomes and I am delighted. I also congratulate those who have been involved, not only in the last two days but over quite some time. The court vacates the dates set down for the hearing of this matter. 11 A copy of the settlement was not handed up to the Court. 12 Mr J West QC with Mr I Neil of counsel appeared on behalf of the Victor interests in the 1999 proceedings. Mr M Holmes QC with Mr R Crow of counsel then represented the Joseph interests. 13 What occurred at that time as to settlement was described in the written submissions by Mr F Lever of counsel, now representing the Joseph interests, in support of Joseph's Notice of Motion challenging jurisdiction in matter no IRC 7189 of 2001: 1 Proceedings 282 of 1999 ("the 1999 proceedings") were settled on 6 February 2001: (a) terms of settlement were signed by the parties and witnessed by their respective Queens Counsels; [sic] (b) the 1999 proceedings were dismissed with no order as to costs; (c) Victor Lahoud handed Joseph Lahoud two cheques totalling $570,000. 14 On 2 May 2001, a Notice of Motion (the first Notice of Motion) was filed for Joseph Lahoud seeking a declaration and orders as follows: 1 A declaration that the Agreement between the First and Second Applicants [Joseph interests] and the First, Second and Third Respondents [Victor interests] herein, in the form of the Terms of Settlement being Annexure JL1 to the affidavit of Joseph Lahoud sworn 1 May 2001 is binding on each of the parties. 2 An order that the First and Second Respondents provide access, keys and details of the tenancies of Units 4 & 31 135-145 Sailors Bay Road Northbridge to the First Applicant sufficient to allow the First Applicant to market for sale Units 4 & 31 of 135-145 Sailors Bay Road Northbridge. 3 An order that Units 4 & 31 of 135-145 Sailors Bay Road be sold by the Second Respondent and the proceeds of the sale paid to the First Applicant. 3 [sic] An order that the time limitation under Schedule 1 Paragraph 8 of the Terms of Settlement be extended to 6 months from the date of the orders made under this Notice of Motion. 4 An order that on the payment of the proceeds of sale of Units 4 & 31 of 135-145 Sailors Bay Road by the Second Respondent to the First Applicant the parties execute a Deed of Agreement in the form of the Deed of Agreement being Annexure JL2 to the affidavit of Joseph Lahoud sworn 1 May 2001. 5 An order that the Respondents pay the Applicant's costs on an indemnity basis. 6 Such other orders as the Court considers appropriate. 15 That Notice of Motion was mentioned on 15 May 2001 and a date for hearing set for 8 November 2001. 16 On 5 July 2001, a Notice of Motion was filed for the Victor interests (the second Notice of Motion) applying for the following orders: 1 That any agreement reached between the Applicants [Joseph interests] and the Respondents [Victor interests] or any one or more of them on 5 and 6 February 2001 has been repudiated by the Applicants; 2 That the Applicants pay the sum of $570,000 to the Respondents together with interest from the date of payment to the date of repayment, and both dates inclusive; 3 Such other order as the Court considers appropriate; 4 That the Applicants pay the costs of the motion. 17 That Notice of Motion was also set for hearing on 8 November 2001. 18 The parties came back before the Court on 17 October 2001 at which time there was extensive discussion as to how, or if, the two Notices of Motion could be progressed before the Court. 19 Mr Lever raised problems he perceived as to the jurisdiction of the Court to deal with both Notices of Motion. The matter went over to allow Mr Lever to confer with Mr J Trew QC and Mr J Murphy of counsel now representing the Victor interests. 20 The upshot of the various attempts by the respondents to matter no IRC99/282 to progress the matter in the Commission was that on 5 November 2001 they filed their own summons for relief pursuant to s 106 of the 1996 Act (No IRC 2001/7189) against Joseph Lahoud and Joseph Lahoud & Associates Pty Limited. 21 On 22 November 2001, the two Notices of Motion in relation to the 1999 proceedings were stood over generally to await the outcome of the 2001 proceedings. The question of costs in both matters was also reserved. Matter No IRC2001/7189 (the 2001 proceedings) 22 As already noted, the Victor interests on 5 November 2001 filed a summons for relief pursuant to s 106 against the Joseph interests. 23 In his Summons for Relief pursuant to s 106, Victor sought the following orders: 1. An order pursuant to Section 106(1) of the Industrial Relations Act 1996 ("the Act") declaring void ab initio Terms of Settlement between the Applicants and the Respondents and dated 6 February 2000 in settlement of proceedings number 282 of 1999 in this Commission ("the Proceedings"), (in which proceedings the Respondents as applicants sought orders pursuant to section 106(1) of the Act). 2. An order pursuant to section 106(5) of the Act that the Respondents or any one or more of them pay to the Applicants or any one or more of them the sum of $570,000. 3. An order for payment of interest on the sum of money ordered to be paid by the Commission. 4. Such further and other orders as the Commission deems fit. 5. An order that the Respondents pay the costs of these proceedings. 24 On 22 November 2001, Joseph filed the Notice of Motion, the subject of this judgment. 25 The Grounds and Reasons to support the Notice of Motion are: 1 The Industrial Relations Commission does not have jurisdiction to deal with this matter under Section 106 of the Industrial Relations Act as the terms of settlement sought to be varied in the summons is not a contract or arrangement whereby a person performs work in any industry. 2 The applicants are estopped from raising the matters pleaded in paragraphs 1 to 14 of the summons on the grounds that those matters were dealt with an determined by the Industrial Relations Commission in proceedings IRC 282 of 1999. 3 The applicants are estopped from raising the matters pleaded in the summons by reason of paragraphs 7 and 9 of the executed Terms of Settlement executed in proceedings IRC 282 of 1999 which is annexure "A" to this Notice of Motion. 26 On 27 November, Mr Lever advised that Joseph would be making an application in the Equity Division of the Supreme Court to enforce the agreement. 27 An agreed timetable was advised for the filing and serving of affidavits and submissions in relation to the hearing on Joseph's Notice of Motion, that hearing being set for 27 March 2002. The parties were advised that the 2001 proceedings would be referred to his Honour the President for reallocation for conciliation pursuant to s 109. 28 Subsequent to the hearing of the Notice of Motion and reservation of decision, the conciliation mandatory under s 109 took place on 16 May 2002 but was unsuccessful in resolving the issues between the parties. 29 The submissions by the Victor interests that conciliation pursuant to s 109 needed to occur before Joseph's Notice of Motion was determined has been overtaken by the fact that conciliation did take place on 16 May 2002, but was not successful in resolving the matter. Submissions - Joseph interests 30 The 2001 application of the Victor interests was challenged, firstly, on the basis that the terms of settlement were not a contract etc in terms of s 106 whereby work was performed in any industry, and, secondly, on the basis of estoppel. 31 Mr Lever contended that the clause contained in schedule 2 of the terms of settlement makes it clear that parties are immediately bound by the terms of settlement. Their agreement is not subject to the preparation of the deed. The terms of settlement expressly fall within the first category of agreements referred to by the High Court in Masters v Cameron (1954) 91 CLR 353 at 360. (See also the decision of Maidment J in Peter Smarzak v Grimes Management Services Pty Limited IRC 3359 of 1998, 12 May 2000.) 32 As the terms of settlement, including the releases that were to be incorporated into a deed, that deed is binding on the parties. It cannot be contradicted or varied by some vague oral agreement to the contrary, such as the one alleged by Victor Lahoud in these proceedings. 33 What this controversy centres around is some sort of collateral promise or agreement said to have been entered into by the two brothers when the matter was settled before the Court on the last occasion. That is that Joseph give Victor their late father's watch and Joseph would somehow assist in the care of their brother, Riad. It is said those two facts make this case different from the earlier case, that those two facts mean that the Court can come to the terms of settlement, which included dismissing the proceedings, to somehow find that the terms of settlement are somehow unfair or, as Victor has submitted, the collateral arrangements can be unfair themselves. It is also said that the terms of settlement in the dismissing of these proceedings were somehow collateral to this earlier overall family work relationship. 34 There can be no doubt, as was contended for Victor, that this Commission has jurisdiction to hear a challenge to a deed of release or something similar imposed on an employee (see David Jones Limited v Cukeric (Cukeric) [1997] 78 IR 430). This is not a Cukeric Case. The case is quite different. It is the sort of case that Schmidt J was looking at in Dr Payne v The University of Sydney (Payne) [2000] NSWIRComm 102. 35 This agreement is said by Victor Lahoud, in an affidavit filed in the 1999 proceedings but after the settlement, to arise from a conversation which he had with Joseph Lahoud on 5 February 2001. Highly unlikely as that conversation is, any alleged agreement about the care of Riad must be void for uncertainty. It cannot be a precondition to the terms of settlement. It is incapable of specific performance; it is too vague. 36 It is arguable that if the parties are having a debate about whether the parties have an agreement as to the wrist watch, that Joseph agreed to give their father's wrist watch to Victor, could be enforced as a contract, standing alone. 37 In any event, there being a binding agreement between the parties, it includes the release provided for in clause 9 of the terms of settlement. The parties have released each other from all claims which they may have had prior to 6 February 2001, including the dispute about Riad and about the watch. Both "new" matters had been raised by Victor in the 1999 proceedings. 38 The proceedings were dismissed. That is significant. Had the proceedings simply been discontinued or left in the Court's list pending final settlement, it would be different, but they were not. Joseph consented to his proceedings being dismissed. The result of that is that he is now left in a situation where his case has been dismissed. Victor says Joseph cannot re-litigate his case, it has been dismissed, but Victor can re-litigate all the matters Victor raised in the affidavits that he put on in those proceedings. 39 If the parties agree to end their dispute by signing terms of settlement and agreeing to proceedings being dismissed surely one side cannot come back and re-agitate everything he agitated or was prepared to agitate in the proceedings below while at the same time the other party has in good faith consented to the proceedings being dismissed, his claim having been determined. 40 One party does not like the compromise reached. It is an abuse of process for that party now to challenge the compromise that resulted in the proceedings being dismissed. 41 When the issue of jurisdiction is easily ascertainable by, for example, analysing the terms of a written contract, the issue is one only of law and ought to be disposed of as soon as possible. See Barham v Stevenson (1975) 1 NSWLR 34 at 36B, Barham v Stevenson (1977) 136 CLR 190 at 202-203 and Walker v Hussmann Australia Pty Limited (1991) 24 NSWLR 451 at 463A. 42 The only contract challenged in the summons for relief is that arising from the terms of settlement, nothing more. The terms of settlement should therefore be examined to ascertain whether they constitute a contract whereby a person performs work in any industry. Nothing in those terms of settlement requires any of the parties to perform any work apart from signing a deed, paying $570,000 and transferring two units. 43 The terms of settlement are not dissimilar to the contract for sale of a business examined by the New South Wales Court of Appeal in Production Spray Painting & Panel Beating Pty Limited v Newnham (1991) 27 NSWLR 644. In that case it was said at 657 that the contract of sale did not require the purchasers to work in the business, or to employ others to do so. 44 The next argument of the Victor interests on that is that the terms of settlement stand by themselves. Just as the contract for the sale of business in Production Spray Painting did not result in work being performed in an industry neither do the terms of settlement. 45 It is apparently said in this case, to give effect to these terms of settlement the lawyers have to transfer properties, payments have to be made but those work related tasks have nothing to do with the agreement of itself in the same way that in Production Spray Painting the solicitors would have had to do all the things that solicitors do to give effect to the contract and sale of business, such as "Involves a solicitor preparing documents", "Involves making transactions", "Involves the payment of moneys" etc. 46 In this case it cannot possibly be accepted that because Victor drew a cheque for $570,000, that was work in an industry or because he was to instruct his solicitor to prepare transfers of two units, that was somehow work in an industry that was required. 47 Even in the face of decisions such as Nagle v Tilburg [(1993) 51 IR 8] the Court would not be reluctant at this stage of proceedings to dismiss Victor's summons in the circumstances of the Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 at 598 (Anshun) argument seen to exist by looking at the factual matrix put before the Commission. 48 Even in the case where there are pleadings it is not the pleadings which bind the parties to the dispute. It is the factual matrix (see Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 at 559). 49 This is not one of those cases where there is a similarity - there is an almost total identity of the factual matrix. 50 A substantial part of Joseph's case is that these matters in the summons currently before the Court in the 2001 proceedings have all been the subject, every fact alleged, of the earlier 1999 litigation. There was a massive amount of material, virtually everything in the brothers' personal life was exposed in the affidavits filed by both sides. In the summons filed in these proceedings and in the reply to the response, Victor Lahoud has raised all of those issues again. 51 This is not an Anshun case in which Victor Lahoud did not raise issues in defence to his brother's claims. As can be seen from the schedule he raised a lot and he raised it in huge detail. Everything which is now before the Court was raised in those earlier proceedings. 52 Annexed to Mr Lever's submissions was a schedule cross referencing the allegations made by the Victor Lahoud parties in the 1999 proceedings against the same allegations made by those parties in these proceedings. The schedule shows that essentially the same facts are relied on in these proceedings as were the subject of the 1999 proceedings. The 1999 proceedings were determined when the summons was dismissed. Those proceedings cannot be relitigated in these proceedings. 53 The High Court reviewed the Anshun principle in Chamberlain v Deputy Commissioner of Taxation ( (1988) 164 CLR 502 at 507) emphasising that the Court would not permit the same parties to open the same subject of litigation except under special circumstances. 54 The Anshun principle was also considered by the Full Bench of the Industrial Relations Commission in Hibbert v Lubidineuse (1990) 37 IR 150. Applying the Anshun principle, the Commission concluded (at page 164): … In essence, what is involved is the obtaining by the respondents of judgment twice against Bevanere in respect of what are essentially the same facts namely, the misleading and deceptive conduct of Bevanere and Prussak in the transaction, and which gave rise to separate rights or remedies under the T[rade] P[ractices] Act and the I[ndustrial] A[rbitration] Act respectively. In the TP Act proceedings, the respondents sued Bevanere to have the contract avoided and to obtain recovery of moneys lost by them in the transaction. They now seek to do the same thing under s 88F, although the order for moneys lost is claimed only against Prussak and Hibbert. In our opinion the action against Bevanere is barred by the doctrine of estoppel. Since Bevanere is an essential party to the proceedings, it follows that the action against Prussak and/or Hibbert cannot be maintained. (See also the decision of Hungerford J in McGurk v ECC Lighting Limited (1996) 82 IR 102 and the decision of the New South Wales Court of Appeal in Tszyu v Fightvision .) 55 The order made by the Court on 6 February 2001 dismissing the 1999 proceedings dealt with finally all of the matters in issue in the 1999 proceedings and therefore the matters which are repeated in these proceedings. These proceedings were necessarily determined by the dismissal of the 1999 proceedings (see Blair v Curran (1939) 62 CLR 464 at 531 and Macquarie Bank (supra) at 75, 927. 56 The rule of res judicata "bars action for relief founded upon the same facts as those upon which an earlier judgment was recovered, though the right sued upon on the second action is different from the right which passed into, or was negated by, the earlier judgment". (As well as the cases referred to above, see also Macquarie Bank v Westgarth Baldick (1995) 8 ANZ Insurance Cases 61-261 at 75, 927-934, Onerati v Phillips Constructions Pty Limited (in Liquidation) (1989) 16 NSWLR 730 at 746 and Trawl Industries v Effem Foods (1992) 108 ALR 335 at 347.) 57 An order of a superior court dismissing a claim (with or without a hearing on the merits) is final and conclusive between the parties of all of the matters determined by the dismissal. See Linprint Pty Limited v Hexam Textiles (1991) 23 NSWLR 508 at 514-521 and 525-526 and Marks v National & General Insurance (1993) 114 FLR 416 at 418. 58 It is therefore impermissible for the Victor Lahoud parties to reagitate the very matters in issue before the Court in the 1999 proceedings. The potential inconsistency is stark. The Victor Lahoud parties are attempting to agitate the same matters twice. There are no special circumstances in this case which fall within the exceptions referred to in Henderson v Henderson. In the circumstances, the summons in these proceedings should be dismissed or at least the proceedings stayed permanently. 59 Two recent decisions attack the very heart of the case put by the Victor interests in that they considered whether the proceedings the subject of those decisions had been settled in conciliation: Payne v The University of Sydney [2000] NSWIRComm 102 (Schmidt J; IRC97/4798, 5/7/00) and Brown v Green (the Charlie Brown Case) [1996] NSWIRComm 136 (Schmidt J; CT95/1166; 6/8/96). In each case, proceedings brought under either s 106 or s 275 of the Industrial Relations Act 1991 were permanently stayed. 60 Public policy demands that where parties reach agreement, where parties reach a concluded agreement in cases such as this, then the courts would be loath to undo that agreement entered into with the benefit of advice from senior counsel, and where one of the parties, in this case Joseph Lahoud, has acted to his extreme detriment by consenting to the proceedings being dismissed. 61 The Victor interests say that one should look at the terms of settlement that resolved the 1999 proceedings in the context of the overall dispute between the parties and that is somehow an arrangement collateral to the overall dispute. All the disputes were brought to an end by the signing of that document. The document is not collateral to that dispute at all. Submissions - Respondent to the Motion (Victor) 62 The applicants' case does not depend upon the characterisation of the Terms of Settlement as a contract whereby a person performed work in an industry as the respondents submit. At the close of evidence upon the hearing for final relief the applicants' case will be put in various ways which include: (a) The terms of settlement which the applicants seek to have declared void are a condition related to or an arrangement collateral to a contract or arrangement whereby the Applicants and the Respondents performed work in an industry and in relation to which the Respondents brought the proceedings against the Applicants in proceedings IRC 282 of 1999. (b) further or alternatively, the Terms of Settlement are a constituent of the overall arrangement between the parties which included the contract or arrangement the subject of proceedings IRC 282 of 1999, the Terms of Settlement and the matters referred to in para 3 above. (c) Further or alternatively, the said terms of settlement are part of a contract or arrangement or alternatively a related condition or collateral arrangement whereby a person performs work in architecture, accountancy, construction, development, marketing and sale of property. (d) The Applicants are not estopped from relying upon the matters of fact alleged by them in paragraphs B 1-14 of their summons because, amongst other things: (i) the subject matter of the present proceedings is different from the subject matter of the first proceedings; (ii) the matter alleged in those paragraphs were not fundamental to the order disposing of the first proceedings; and (iii) the first proceedings were dismissed by consent of all parties before they were the subject of any hearing by the commission. (e) The Applicants are not estopped from relying upon the matters of fact alleged by them in the summons by paras 7 and 9 of the terms of settlement because those terms were made by the Applicants upon the conditions alleged by them in their summons which the Respondents now repudiate. 63 It is well settled that the Commission has jurisdiction to set aside Terms of Settlement including a release: see David Jones Ltd v Cukeric (1997) 78 IR 430. 64 This application by the Joseph interests is misconceived and must fail. The claims made in the present summons are different from the claims made in the summons in the other proceedings and the differences are of two kinds. First, it's a different type of action. Secondly, it's a type of action that could not have arisen and could not have been determined in the earlier proceedings. 65 That earlier summons, which was commenced in 1999 by Joseph (without any disrespect it is easier to identify the parties in that way) sought orders varying contract and arrangements, et cetera, between the parties, whereby they performed work in an industry, from their commencement, or some other times. They sought a variation so as to require the respondents to pay or transfer to the applicant one half or any other share that the Commission considers just in the circumstances of the case and the profits of a related project referred to in the affidavit made by the first applicant on that day. They wanted an order for the payment of money and then they asked for costs. The ground upon which it was said to be unfair was that the respondents had refused and neglected to pay or transfer to the applicant a half, or any other just or conscionable share, related to the project. 66 The evidence in those earlier affidavits no doubt went to the question of whether or not an order should be made along the lines of what was sought in order 1 sought in that summons. 67 In other words, the issue was whether or not it was just that there should be a share of the profits, and no doubt the parties were going to conduct the case on the basis of the relations between one another over a long period of years in relation to many different projects and other types of conduct relating to the way in which the family had dealt with certain things. That no doubt was the issue in that case. 68 There was no allegation that the Court was pointed to about entitlement to various claims for looking after a brother, et cetera. Now the matter was then settled, and it was settled, on the case that is made by Victor, on the basis of the terms of settlement that were signed, and the settlement included a private family arrangement about which at the moment there is precisely no evidence. The summons in the present proceedings, seeks orders, firstly, declaring void - it is between the same parties but here on the different sides of the record - the terms of settlement which did not exist at the time of the other proceedings; and then it seeks an order for the repaying of money that was paid as part of the terms of settlement. Paragraphs 1 through to 14, or 15 were said to be all part of the matters that were agitated in the previous proceedings, and let it be conceded for the purposes of these arguments that that is true, but they are not matters about which the Court has been asked to determine in the present proceedings because the Court here is being asked to determine whether the terms of settlement should be set aside. 69 The word "matrix" is usually used in relation to background facts. These paragraphs 1 to 14, 15 are background facts and in the course of the hearing if this case goes to trial, the matters that are alleged in respect to which leave is sought are paragraphs 17 to 22. They are not matters that existed, or could have been raised in defence or claim in relation to the earlier proceedings. The matters in paragraph 1 to 14, and perhaps 15 are background facts to show the circumstances in which the claim that arises in relation to the matters alleged in paragraphs 16 to 22 have their importance. That is the relevance of the earlier paragraphs. 70 The core of the claim made by Victor is in paragraphs 17 to the end of the summons, which is this, it's an arrangement that he is asking to be set aside. 71 The matters that are relevant in Victor's case are whether or not there was another arrangement made between the parties and whether the conduct of Joseph, as a result of that, renders the transaction unfair in such a way that relief should be granted. Now that is not a matter that could have arisen before and it is not a matter in which the Anshun estoppel can arise. 72 It is not appropriate at this time to determine the issues that were agitated by the respondent. There are two arguments. They first of all say there is no jurisdiction; and they secondly say there is an estoppel issue. It is not appropriate at this stage to deal with either of those for these reasons. 73 Firstly, in relation to the jurisdictional issue, there is no evidence before the Court. In previous cases the Commission has been very slow to determine as a preliminary issue the jurisdiction when the facts have not been ventilated. The Victor interests point out that there was no evidence on and they wished to lead evidence. 74 On the jurisdictional issue Victor submits that there is jurisdiction but it is not appropriate to determine it at the moment because the case is not ripe for determination in the absence of evidence. 75 The second issue, the estoppel issue again depends upon a comparison of the facts in the earlier case with the facts relied upon in the present case. There is no evidence before the Commission to determine that but from the way in which the allegations have been raised in the two summonses the Court can see that the indications are that this is not an Anshun type of case, because the Anshun estoppel arises only in relation to a matter that could have been pleaded in the earlier case, but it was not either by defence or by claim; and even then the Court is slow to exercise any power of excluding a matter in the second proceedings because there may be very good reasons why it was not appropriate. That is why Victor is saying that this application is misconceived. 76 This court is not a court of pleadings. There is no provision in the Rules for pleadings to join issues in cases so that the cases then go to trial on pleadings. The Rules under which summonses are filed requires the summons to be in a particular form to enable conciliation to take place. That is the function of r 18A and that rule was introduced at the time when s109 was inserted into the legislation. If the conciliation fails, the parties then go on to file affidavits. 77 The summons drawn on behalf of the Victor interests was drawn to comply with that Rule. The evidence that will be led will be more extensive than in the summons. 78 It is said in various ways in the proceedings by Mr Lever against Victor that this arrangement is said to be vague and uncertain. The Court was taken to a whole lot of affidavit excerpts from other proceedings. Prior to the commencement of the proceedings by the Victor interests the respondents were told it was not intended to rely upon evidence filed in the earlier proceedings. 79 It is not appropriate to consider these matters that are being agitated now until after there has been conciliation in accordance with s 109. 80 In relation to the Anshun estoppel, the mere fact that paragraphs 1 to 15 of the summons by Victor refer to matters that were subject of evidence in the preceding proceedings is neither here nor there. It does not mean that they cannot be relitigated. The issue is: "What is the issue in this case, and is it one an issue that could have been raised in the earlier case, or what is the course of action we are concerned with in this particular case?" And the particular case that is proceeding now relates to terms of settlement and their status and has nothing to do with anything that could have arisen in the earlier proceedings, nor did it arise. The mere fact that some facts are referred to that arose in the earlier proceedings is not determinative of the issue. 81 The arrangement or contract in relation to which the earlier proceedings were brought, had an element or a condition, the settlement. No attack is made on the earlier arrangement. The attack is made on the settlement. 82 If it is a condition, or a collateral arrangement, the authorities establish that there is no need for work to be done under that condition or that collateral arrangement. It is the terms of settlement viewed as part of the larger arrangement between the parties that is being attacked. 83 In Cukeric (at page 441.5) it was found that the settlement of dealings between the parties at the end of a relationship can be part of the arrangement. That is what is now submitted. The evidence will demonstrate that. How that should be dealt with is a matter for hearing when there is evidence. 84 These proceedings are at a stage where the Court does not know anything about the circumstances in which the terms of settlement came into existence, except for the allegations in the summons, which are denied, and in the documents which followed it. It will be necessary to have regard to the evidence. 85 The complaint by the Joseph interests that the Terms of Settlement do not have a sufficient connection with work in an industry mistakes Victor's case. Insofar as they constitute either a condition or arrangement or a part thereof it is not necessary that the Terms of Settlement must be a contract or any arrangement whereby work is performed in an industry. Cash Converters Pty Ltd v Yildiz (1999) 94 IR 474 at 476. In any event the applicants propose leading evidence at the hearing for final relief of a work connection which includes evidence of the work required to perform the following functions: (a) The first respondent to instruct solicitors and agents in relation to each sale; (b) The applicant to provide all assistance, instructions and documents as are reasonably required to effect each sale; (c) The first respondent to co-ordinate the sale subject to existing tenancies, etc; (d) The first and second respondents to use their best endeavours to achieve the highest price available for each property. 86 The Commission cannot deal with the issue now because there is no evidence on. 87 The evidence read to the Court in Mr Lever's submissions was in other proceedings. As to the evidence in the present proceedings the Court does not know what it is going to be. 88 The Joseph interests identify earlier evidence and they say in relation to that that it is void for uncertainty. That misstates Victor's case. To the extent there is a contract, there is no evidence on it. It cannot be said anything is void. In so far as the Victor interests rely on there being an arrangement or condition, conditions and arrangements cannot be void for uncertainty. An arrangement, by its nature, is something that is legally unenforceable. Issue is taken with the way in which that is put. 89 As a matter of the way in which the Joseph interests refer to the terms of settlement, there is no release in the terms of settlement. There is an agreement to prepare a deed which will contain a release. The circumstances in which all of that came into existence will need to be gone into in the evidence. 90 There is no a priori principle that prevents one going behind an agreement that is made that is unfair. 91 That conduct cannot be examined in the absence of evidence. That is why this question of jurisdiction cannot be determined at this stage. 92 Even if the Anshun principle was relevant in relation to the proceedings in the Commission, it has no application here because the cause of action relied upon by the applicants is not based upon substantially the same facts that could have been relied upon as a defence in the earlier proceedings. However, the Anshun principle is not applicable to a case such as the present where the earlier case was not fully litigated but was compromised: see Hoppe v Titman [1996] 1 WLR 849, Atsas v Gertsch [1998] NSWSC 522. 93 There is no estoppel as to evidentiary facts found in the course of determining the affirmative or negative of an issue. Accordingly, where the earlier case is fully litigated there will be nothing to prevent a party from tendering in a later proceeding, in relation to a particular issue, facts negatived in an earlier proceeding when they were tendered in relation to a different issue: see Brewer v Brewer (1953) 88 CLR 1 at 15-16. The earlier proceedings here did not proceed to hearing and so the statement just referred to applies here with greater emphasis. 94 The estoppel issues that have been so raised are, first, Anshun and, second, a party cannot challenge an agreement made in the terms of settlement. This of course is not a contract case. This is a s 106 case and in the Cukeric case the Commission said there is a public interest in maintaining bargains made by people, but in some circumstances the Commission will look into that bargain and revise it. They are the two issues being dealt with on the question of estoppel. 95 The applicants submit that it would be premature to strike out these proceedings on the basis of alleged want of jurisdiction. Further, it is premature to entertain the present application before the conciliation required by s 109. 96 It has not been established that this is "a clear case where it is plain that the invocation of the jurisdiction impugned is wholly misconceived or, upon analysis, lacks an arguable legal foundation". (Majik Markets v Brake and Service Centre Drummoyne [1991] 28 NSWLR 443 at 446 per Kirby P.) 97 The jurisdiction to terminate an action summarily for want of a cause of action in the plaintiff is to be sparingly employed and ought not be used save where the lack of the cause of action was clearly demonstrated (General Steel Industries v Commissioner for Railways (NSW) [1964] 112 CLR 125). 98 This is not a case where it can be said that, at this stage of proceedings before all the evidence and arguments have been put, it has been clearly demonstrated by the respondents that the applicants have no cause of action pursuant to s 106. 99 The cautious approach of the Commission to the early determination of the question of the Commission's jurisdiction was exemplified in Nagle v Tilburg ([1993] 51 IR 8). This approach has been consistently adopted since that judgment. 100 The respondents' motion should be dismissed with costs. Submissions - Joseph's interests - In Reply 101 The matters in the first fourteen paragraphs of the summons, and in page after page of the responses are not, as claimed by Victor, some sort of background, some sort of matrix to introduce the Commission to the real issues in dispute here. Joseph challenges those first fourteen paragraphs, and if Victor were simply referring to the first fourteen paragraphs of the summons there may be a modicum of force in what he says. 102 If the first fourteen paragraphs of the Summons and the 13 pages of the Response to the Reply were some sort of background matrix, to introduce the real issues in dispute, and if it was genuinely a case about challenging the circumstances surrounding the entry into the terms of settlement, where this should be challenged is in the proceedings the Joseph interests have not surprisingly brought is in the Equity Division of the Supreme Court for specific performance of the terms of settlement. That has reached the stage where amended summons have been filed, affidavits by Joseph have been filed and served, and Victor Lahoud has put on a Notice of Motion seeking that these proceedings be stayed pending the outcome of these proceedings. 103 Victor is attempting to litigate virtually the whole of the matter which was before the Court in 1999, as can be seen from the response to the reply. The thirteen pages of that is a huge expansion of the matters raised in the first fourteen paragraphs of the summons, but the case is that which was before the Court in the 1999 proceedings. 104 This is no Cukeric case. This is a case in which proceedings were settled. Joseph's case was dismissed, and it is a fact that the Victor interests are trying to, on one side of it, re-open that case. That comes from the first thirteen paragraphs of the summons and from the whole of the thirteen pages of the response. 105 Those are the parameters of the case that the Victor interests put before the Commission, whether it is for hearing or for conciliation. It is not for background, it is their case. 106 If it were simply a challenge as to the circumstances in which the Deed of Release were given, that would be a very narrow case which would go probably no more than a day, looking at the circumstances surrounding the execution of that document and the dismissal of these proceedings by the Commission. 107 The other thing which Victor's case does is related to that. They are going to challenge the terms of settlement and if they win on all the material they are going to put on before the Court the result will be that the terms of settlement will be set aside. The Commission will have to conclude on that the terms of settlement agreed to by senior counsel, that Joseph had a substantial case, and had been paid $570,000. It is a pretty strong indication that he had a very strong case in the 1997 proceedings in that he got a substantial agreed settlement. 108 That will all go if they proceed with their case. It is a very narrow case. Joseph will be left with a settlement which has gone because he agreed to have the proceedings dismissed. Victor will have had the judgment set aside. Joseph will have got nothing. That is substantial unreasonableness. That is what the Victor interests are attempting to do in these proceedings. 109 The next point was the Production Spray Painting point. To say that there is going to be evidence called to show that some people have to do the work to put into effect the settlement in this case, would be exactly the same sort of evidence one would anticipate would be called in the Production Spray Painting case to give effect to a contract. It does not just end with the contract itself, that has to be put into place. Payments have to be made, assets have to be transferred, land has to be transferred, stock in trade, all of the things that are associated with the contract have to be put in place. They are not matters which arise directly out of the contract for the sale of the business, just as they do not arise directly, in this case, out of the terms of settlement. Additional Submissions 110 Mr Trew noted in his oral submissions that Mr Lever had raised two issues beyond those set out in the written submissions of the Joseph interests in relation to the Notice of Motion now being considered. The first of those issues was a claim of abuse of process. Leave was given for the filing of further submissions on that point. The second related to Joseph's claim that, because the 1999 proceedings had been dismissed, Joseph no longer had a claim available to him. Oral submissions went to that issue. 111 Subsequent to decision in this matter being reserved, the parties, by leave, filed further short written submissions. The first of those filed in April went to the abuse of process issue. The second, as noted earlier, were filed in July following the decision dated 20 June 2002 of the Full Bench (Wright J, President, Walton J, Vice President and Schmidt J) in Euphoric Pty Limited v Ryledar Pty Limited (Euphoric) [2002] NSWIRComm 136. 112 Mr Lever's submissions were directed in particular to a number of paragraphs in the judgment of Schmidt J in which her Honour considered certain aspects of the decision of the Court of Appeal in Production Spray Painting & Panel Beating Pty Ltd v Newham [(1991) 27 NSWLR 644], an authority previously relied upon by the Joseph interests. 113 In the course of her judgment, in relation to which the President and Vice President agreed generally as to her Honour's reasoning process, Schmidt J considered in particular, the judgment of Mahoney J in Production Spray Painting which had distinguished "the purposes of an agreement" and what had to be done to achieve those purposes. While Mr Lever stressed that part of the judgment, Mr Trew concentrated on the discussion in it by the President and Vice President as to Nagle v Tilburg. Those submissions have been taken into account. 114 I deal later with the abuse of process issue. Legislation PART 9 UNFAIR CONTRACTS Division 1 Definitions 105 Definitions In this Part: contract means any contract or arrangement, or any related condition or collateral arrangement, but does not include an industrial instrument. unfair contract means a contract: (a) that is unfair, harsh or unconscionable, or (b) that is against the public interest, or (c) that provides a total remuneration that is less than a person performing the work would receive as an employee performing the work, or (d) that is designed to, or does, avoid the provisions of an industrial instrument. Note. The jurisdiction of the Commission under this Part is exercisable only by the Commission in Court Session. Division 2 Unfair contracts may be declared void or varied 106 Power of the Commission to declare contracts void or varied (1) The Commission may make an order declaring wholly or partly void, or varying, any contract whereby a person performs work in any industry if the Commission finds that the contract is an unfair contract. (2) The Commission may find that it was an unfair contract at the time it was entered into or that it subsequently became an unfair contract because of any conduct of the parties, any variation of the contract or any other reason. (3) A contract may be declared wholly or partly void, or varied, either from the commencement of the contract or from some other time. (4) In considering whether a contract is unfair because it is against the public interest, the matters to which the Commission is to have regard must include the effect that the contract, or a series of such contracts, has had, or may have, on any system of apprenticeship and other methods of providing a sufficient and trained labour force. (5) In making an order under this section, the Commission may make such order as to the payment of money in connection with any contract declared wholly or partly void, or varied, as the Commission considers just in the circumstances of the case. The Terms of Settlement 115 Set out below is an edited version of the relevant provisions of the terms of settlement: 1 The second respondent [Castle Constructions] is to pay to the first applicant [Joseph Lahoud] by bank cheque no later than 6 pm Tuesday 6 February 2001 the sum of $570,000. The respondents have provided written details of the profit calculation for the Cammeray project, which is annexure "A: hereto and verily believe that those details are accurate [either party is entitled to have the figures audited]. 2 [Castle Constructions] is to pay to [Joseph Lahoud] the sale proceeds of unit 4 at 135-145 Sailors Bay Road, Northbridge … and a three bedroom unit at 135-145 Sailors Bay Road, Northbridge, presently owned by [Castle Constructions] which unit shall be nominated by [Joseph Lahoud] by 4 pm on Thursday 15 February 2001, but shall not include unit 18 or 24. [Joseph Lahoud and Joseph Lahoud & Associates] and [Victor Lahoud and Castle Constructions] agree to the conditions set out in Schedule 1 hereof regarding this clause 2. 3 [Joseph Lahoud and Joseph Lahoud & Associates] and [Victor Lahoud, Castle Constructions and Solidare] agree to the terms set out in schedule 2 hereof. 4 The summons herein be dismissed with no order as to costs forthwith. … 7 The parties to this agreement will enter into a deed in accordance with this agreement. 9 The deed referred to in paragraph [7] will include a term by which: (a) the applicants … and the respondents … and each of them release each other from all claims that they have or may have against each other but for those which may arise from, or relate to, these terms of settlement or the terms of the deed referred to in paragraph 7; (b) [Joseph Lahoud] shall complete whatever documents are required to transfer the shares held non beneficially or beneficially as the case may be by him in the issued capital of [Castle Constructions] and [Solidare] to [Victor Lahoud] or his nominee and tender his resignation as director of both companies. 116 Schedule 2 of the terms of settlement provides: SCHEDULE 2 It is the express intention of the parties that this document records and constitutes an immediately binding agreement for the settlement of all aspects of the dispute between the parties NOTWITHSTANDING THAT at the same time the parties contemplate that the agreement will be engrossed in more perfectly drafted documentation which the parties will and hereby agree to execute AND it is agreed that in the event of their [sic] arising any dispute between the parties regarding any suggested admission or uncertainty in the terms of this agreement or in the event of their [sic] arising any dispute between the parties in the course of the preparation of the more perfectly drafted documentation regarding the form or substance of such documentation, the same shall be submitted to a senior counsel nominated by the president for the time being of the New South Wales Bar Association for summary determination acting as an expert and not as an arbitrator AND the parties agree to accept such determination as final and binding and to execute such document as will carry into effect such determination. 117 Schedule 1 of the terms of settlement sets out detailed arrangements for the sale of the units referred to in paragraph 2 of the terms of settlement. Victor's Claim (2001 proceedings) 118 The Summary of matters of fact and law to support Victor's (2001) application was set out in 22 paragraphs. Many repeated matters set out in the documentation filed in relation to Joseph's earlier application. The following are those that go to the settlement of Joseph's action: 13 The [1999] Proceedings were commenced by Joseph to claim either a share of profits in projects developed by Castle in which Joseph was involved in his role as architect or a higher level of remuneration than Castle had paid him, or payment in circumstances were Joseph disputed that any payment had been made. 14 In the circumstances of the trauma and hardship involved in the relocation of the Lahoud family to Australia the bond between Victor's father and Victor became very strong. Victor's father gave him his wrist watch as an item that would continue their bond after his death. This watch had great sentimental value to Victor. Victor lent it back [sic] his father on an occasion when he had to go to the Lebanese Embassy. Upon their father's death Joseph took their father's watch without consulting Victor. 15 Joseph had not returned that watch to Victor. Accordingly, in the course of the private negotiations between the two brothers on 5 February 2001 to discuss resolution of the Proceedings, Victor asked that if he agreed to settle the Proceedings by acceding to Joseph's request for half the share of profits on a project at Bells Avenue, Cammeray ("Cammeray") and to give him two units at 125-135 Sailor's Bay Road, Northbridge ("Northbridge") that he would immediately give back their father's watch to Victor and also agree to assist Victor to care for and maintain Riad. 16 Joseph agreed that he would give their father's watch back to Victor and help Victor look after Riad. They shook hands. Joseph questioned the sense in having these family matters reduced to writing. Victor agreed that as long as they agreed that those matters were pre-conditions to any settlement that they would not be documented. Victor then said that Joseph could have the dollar equivalent of the sum of one half of the profits on the Cammeray and the value of the two units at Northbridge, or payment for the said profits and the units in specie or the proceeds of sale of the units. Victor readily agreed to keep family matters private since both he and Joseph felt that it would be embarrassing to the family to document matters of such a private and personal nature. 17 The Terms of Settlement were drawn and settled on 6 February 2001 and signed. 18 On the same day the Proceedings were dismissed, no order as to costs and Victor paid the sum of $570,000 to Joseph. 19 A Deed of Release was drafted but the Applicants and the Respondents to this day cannot agree as to the contents of the Recitals. 20 Joseph Lahoud has not returned the watch, nor has he approached Victor in relation to the care and maintenance of Riad. 21 Victor relied on the assurances of Joseph in relation to the watch and Riad, which assurances Joseph now denies were even discussed. At the time he believed that the claims of Joseph were extreme, however to obtain a resolution of the Proceedings and revive family harmony, he would accede to Joseph's requests. At the time Victor was prepared to accept and rely upon Joseph's word as a binding commitment between them. Victor now believes that he has been duped by Joseph and that Joseph never intended to honour the promises about the watch and Riad that were fundamental to Victor not proceeding to arbitrate. 22 Victor continues to maintain Riad without assistance. Riad is on constant medication and his condition has deteriorated with age. 119 As stated by Mr Trew in submissions, the core of Victor's claim is set out in paragraphs 17 to the end of the summons. That is the arrangement he asks to be set aside. Consideration 120 The Joseph interests seek orders that the Summons for Relief pursuant to s 106 filed by the Victor interests in matter no IRC 7189 of 2001 be struck out. The making of such orders by the Commission is strongly resisted by the Victor interests. 121 The Victor interests say it is premature, in the absence of evidence, for that matter to be decided, relying for support of that proposition, on the principles enunciated in Nagle (T/as W D and J L Nagle & Sons) v Tilburg (Nagle v Tilburg) [(1993) 51 IR 8]. 122 The principles to be applied in determining whether a challenge to jurisdiction should be determined as a preliminary matter were recently restated and emphasised by a Full Bench of this Commission (Wright J, President, Walton J, Vice President (joint judgment) and Schmidt J) in Euphoric Pty Limited v Ryledar Pty Limited (Euphoric) [2002] NSWIRComm 136 (IRC01/5632; 20/6/02). 123 In the course of the joint judgment at pars [8] to [14], it was stated that: 8 … Full Benches have emphasised that, although it is desirable to determine questions of jurisdiction, where possible, at a preliminary stage, such a determination may be made only where the absence of jurisdiction is clear. In Nagle (T/as W D and J L Nagle & Sons) v Tilburg (1993) 51 IR 8, for example, the Full Court held at 10-11: The principle to apply by a court entertaining a challenge to jurisdiction in a preliminary or threshold way was considered by the Supreme Court of New South Wales, Court of Appeal in Majik Markets Pty Limited v Brake and Service Centre Drummoyne Pty Limited (1991) 28 NSWLR 443; 39 IR 169. Kirby P observed (at 446; 170): "Such a course if [sic] often a sensible one where a party has a substantial threshold argument which, if it succeeds, will knock out the claim and save the costs and inconvenience that attend a protracted hearing of proceedings on the merits. But, as with any threshold relief of this kind, it must be conserved to a clear case where it is plain that the invocation of the jurisdiction impugned is wholly misconceived or, upon analysis, lacks an arguable legal foundation. Necessarily, refusal of relief at the threshold will not finally determine that jurisdiction exists for any order which the Commission might make between the parties. This is because, to secure relief, the claimants must demonstrate that no order could be made which would be within jurisdiction. This burden which is a heavy one, was accepted by the claimants." The Full Court then observed, at 11-12: We would draw from those authorities the proposition that whilst it is desirable for a case to be determined at an early stage it is only open to do so at the appropriate stage of the proceedings, that is, where the facts, either established by evidence or plainly agreed in terms, enable the Court to determine what the contract or arrangement is or, at least, the parameters of the contract or arrangement. In other words, it seems to us, unless the facts are sufficiently established to enable the Court to be satisfied it has the necessary material to reach a clear and final decision on the question then the appropriate stage has not been reached for such a determination to be made. … 11 In order to succeed in a motion to dismiss on a preliminary basis a summons for want of jurisdiction, a respondent must demonstrate that there is no power in the Commission to grant any relief sought in the application. … 13 Further, … notwithstanding the public interest in having struck out at an early stage proceedings for which there is no jurisdiction, "the jurisdiction to terminate an action summarily for want of a cause of action is to be sparingly employed and ought not to be used save where the lack of the cause of action [is] clearly demonstrated". 124 I stress what is said above: "there is no power in the Commission to grant any relief sought in the application". (my emphasis) 125 In this decision, I am considering only such relief as may be available pursuant to s 106. I am not considering, nor making any determination, as to what, if any, relief may be available to the Victor interests in relation to the Terms of Settlement and their claims that settlement was entered into by them on the basis of misrepresentations by the Joseph interests, and in particular by Joseph. (In that respect I refer later to a decision of a Full Bench of the Industrial Relations Commission in Winter Star Pty Limited v Dixon [(1994) 55 IR 187].) 126 On a number of occasions during the course of his submissions, Mr Trew stated that Mr Lever had misstated Victor's case. 127 In one sense that may be true. Victor's case is that he does not attack the earlier arrangement ie Joseph's case in the 1999 proceedings, but he does attack the Terms of Settlement of those 1999 proceedings, alleging that he was fraudulently induced to enter into that settlement by Joseph, on the basis of events that had not occurred when the 1999 proceedings were in train and therefore the Anshun principle does not apply. Victor's attack on that settlement is through the medium of a summons for relief made pursuant to s 106. 128 In the light of Victor's application being made under s 106, Mr Lever not unnaturally frames his submissions on that basis and relies particularly on the principles of estoppel as enunciated in Anshun. 129 The sequence of events in relation to the 1999 proceedings was that an application seeking relief pursuant to s 106 was filed by Joseph. It was progressed to the stage that 10 days had been set for hearing it. Attempts to settle the application were made over the first two dates allocated for hearing and were successful on the second day. Terms of Settlement were drawn up with the assistance of counsel. The Court was convened, advised of the settlement and asked to dismiss the application with no order as to costs. That was done. 130 It was not submitted by either party that that dismissal was not a decision of the Commission finalising the application by Joseph (the 1999 proceedings). 131 The fact that the order was made by consent does not deprive it of finality. In Marks v National & General Insurance Co Ltd [(1993) 114 FLR 416 at 420], Miles CJ stated: The fact that the order was a consent order does not deprive the order of finality under s 11(1) of the Magistrates Courts Act nor does it preclude the operation of res judicata, as was recognised by the High Court in Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502, where Deane, Toohey and Gaudron JJ held (at 508) that "the principle of res judicata holds good" in a case where judgment is entered by consent, citing Isaacs v Ocean Accident & Guarantee Corporation Ltd [1958] SR (NSW) 69 at 75, 79-80. In Isaacs , Owen J held (at 81) that: "A judgment entered by consent … is intended to end the litigation between the parties to it." 132 In Chamberlain v Deputy Commissioner of Taxation [(1987-1988) 164 CLR 502 at 508] it was said that The fact that a judgment is entered by consent may on occasion make it hard to say what was necessarily decided by the judgment, especially where it is the defendant who wishes to bring action at a later date: Isaacs v Ocean Accident and Guarantee Corporation Ltd (24) [ [1958] SR (NSW) 69 at p 75] per Street CJ and Roper CJ in Eq.; cf Owen J (25) [at pp 79-80]. But the principle of res judicata holds good in such a case. (Note: In this case it is the respondent to the 1999 proceedings who wishes to bring action in the 2001 proceedings.) 133 Hodgson CJ in Eq in Atsas v Gertsch ([1998] NSWSC 522) in a discussion of estoppel and the Anshun principle said: Turning to the question of whether the plaintiff is precluded by the judgment in the earlier proceedings, that was a default judgment; and it seems clear that a default judgment gives rise to res judicata and issue estoppel only as regards matters necessarily determined by that judgment. Even in contested proceedings, the entry of judgment in respect of a claim does not resolve issues arising on a cross-claim: see Supreme Court Rules Pt6 r8. In relation to matters which may be raised not just by way of cross-claim, but also by way of defence, the situation is not quite so clear. It appears that, if the proceedings are fully litigated, then matters which could be the subject of a cross-claim but which also could be raised as a defence, even if only pursuant to a claim of equitable set off, are determined by the proceedings, if not by way of res judicata or issue estoppel, then at least by way of the Anshun principle: see Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287; 490093BC v Bank of Montreal (1995) 128 DLR 4th 488. However, in my opinion, this would not apply in the case of a default judgment. Certainly, it does not apply where money has been paid and accepted in relation to a claim, without judgment being entered: see Davis v Hedges (1871) 6 QB 687; Hoppe v Tittman (1996) 1 WLR 841. I have already referred to the narrow effect given to default judgments as regards res judicata and issue estoppel. … 134 It has often been stressed that the courts will look to the substance of a matter rather than to its form to determine its character (Anshun at 610) (see also Schmidt J in Brown v Green ([1996] NSWIRComm 136, CT95/1166; 6/8/96) (Charlie Brown) (at p 15) and Haylen J in Morrison v Dartbrook Coal [2002] NSWIRComm 127 at [74]). 135 Although the Victor interests have filed a summons for relief under s 106, they have not sought orders in the terms of s 105 and s 106. 136 What they have quite starkly sought is an order pursuant to s 106(1) declaring void ab initio Terms of Settlement between the applicants and the respondents and dated 6 February 2000 [sic] (2001) in settlement of proceedings number 282 of 1999 in this Commission. 137 The High Court in Masters v Cameron [(1954) 91 CLR 353 at 360-361] was considering whether a binding contract existed in the circumstances of negotiations therein described. It was then stated: Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three classes. It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document. Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract. In each of the first two cases there is a binding contract: in the first case a contract binding the parties at once to perform the agreed terms whether the contemplated formal document comes into existence or not, and to join (if they have so agreed) in settling and executing the formal document; and in the second case a contract binding the parties to join in bringing the formal contract into existence and then to carry it into execution. Of these two cases the first is the more common. Throughout the decisions on this branch of the law the proposition is insisted upon which Lord Blackburn expressed in Rossiter v Miller (1) [(1878) 3 App Cas 1124] when he said that the mere fact that the parties have expressly stipulated that there shall afterwards be a formal agreement prepared, embodying the terms, which shall be signed by the parties does not, by itself, show that they continue merely in negotiation. His Lordship proceeded: " … as soon as the fact is established of the final mutual assent of the parties so that those who draw up the formal agreement have not the power to vary the terms already settled, I think the contract is completed" (2) [(1878) 3 App Cas, at p 1151 ] : see also Sinclair, Scott & Co Ltd v Naughton (3) [(1929) 43 CLR 310 at 317]. … Cases of the third class are fundamentally different. They are cases in which the terms of agreement are not intended to have, and therefore do not have, any binding effect of their own: Governor &c of the Poor of Kingston-upon-Hull v Petch (8) [(1854) 10 Exch 610 [156 ER 583] ]. 138 The terms of Schedule 2 of the Terms of Settlement reflect the words in Masters at 360 describing the first class. Examination of the terms of the settlement themselves, with particular attention to Schedule 2, support the proposition that it falls into the first of the classes set out above in Masters. Further support is gained by the fact that Victor, on the day the settlement was reached, paid the sum of $570,000 to Joseph. 139 Mr Trew distinguished the issues in the original application under s 106 by Joseph from those that were to be agitated in Victor's application under s 106. 140 However, in so doing, it seems to me that, as a matter of reality, one looks to the contract, arrangement etc that Victor seeks to impugn. That contract, arrangement etc, though not described in those terms in Victor's Summons for Relief, is, it is accepted, the Terms of Settlement reached between Joseph and Victor in settlement of Joseph's application under s 106. 141 In Anshun (at 603) it was stated that "a party will be estopped from bringing an action which, it if it succeeds, will result in a judgment which conflicts with an earlier judgment". 142 In my view, that statement makes it unnecessary for me to deal further with the detailed submissions made in respect of the Anshun principle (although they have been considered), because this application falls at the first hurdle. 143 That leads to the question of if, and how, the Victor interests can agitate their claims as to such alleged misrepresentations before the Commission. 144 Normally there would be one of two outcomes to a decision of the Commission. The first is that the decision would be accepted by the parties. The second is that it might be appealed by one, both or all of the parties litigating the matter. 145 Both parties, during the course of a number of mentions before the Commission, indicated a preference that their dispute as to the Terms of Settlement be progressed in the Commission. However, they could not agree as to how, or if, that could be done. Their responses included the two Notices of Motion in IRC99/282, now stood over, Joseph's proceedings before the Equity Division of the Supreme Court and Victor's summons for relief under s 106. 146 There were assertions made by both sides as to the position the Joseph interests would be in should the 2001 proceedings be permitted by the Commission to go forward. 147 It was contended for the Joseph interests that Joseph had agreed to the dismissal of the proceedings on the basis of a concluded agreement. He is now faced, unfairly with the ultimate handicap that his claim has been dismissed. He does not have a claim. It has gone. His brother now raises against him all the matters which he raised in those 1999 proceedings, which have been dismissed. The more the matter is considered the more clear it is that what is happening here is an abuse of process by Victor. 148 Relying upon Linprint Pty Ltd v Hexham Textiles Pty Ltd [(1991) 23 NSWLR 508 at 525-526], a judgment of the New South Wales Court of Appeal (Kirby P, Samuels and Clarke JJA), Mr Lever submitted that where there is a judgment entered at the conclusion of the hearing, or by consent, that can only be set aside, generally speaking, if fraud is established, or in a successful appeal, of course neither of which is possible; or if it is possible what happens in these proceedings is that there is a judgment of the Commission, perhaps standing, dismissing the application. 149 Mr Lever did not expand on his statement as to why neither of the alternatives he mentioned was "possible". It may have been that he had in mind the pronouncements such as that by Dixon J in Grierson v The King (at 436) that "no court has authority to review its own decision … after the decision has passed into a judgment formally drawn up". 150 Mr Trew said that the issue was the second issue raised for the first time in oral submissions when it was said the effect of the judgment or the dismissal of the proceedings was that Joseph's claim was no longer available to him. That was not put as a substantive ground but, as the Victor interests understand it, in relation to the proceedings. It certainly is not raised in the notice of motion and is not addressed in the submissions in that way. The only relevance of that can be in the proceedings if they go to trial. There are cases the Victor interests have referred to in submissions that would point against that conclusion. The matter is a matter that can only arise in the hearing of the case. It does not arise as a matter relating to the estoppel issues that have been raised against Victor in the notice of motion. 151 At the heart of the 2001 proceedings is the claim that Victor's agreement to the Terms of Settlement which included the dismissal of the 1999 proceedings had been obtained by the misrepresentations of Joseph. The more that Victor's case is examined the more it can be seen in the nature of an appeal or as an attempt to have the Terms of Settlement overturned or set aside on the grounds of fraud. 152 The claim by the Victor interests that the Terms of Settlement were induced by fraud would need to be substantiated by evidence. That evidence would be of comparatively narrow compass dealing with the events of 5 and 6 February 2001. It would only be if that claim were to be upheld that the merits of Joseph's original application under s 109 would come before the Commission for determination. 153 Circumstances where one party asserts that an agreement was reached because of misrepresentations by the other party have been considered by the Industrial Relations Commission, in a former incarnation under the Industrial Relations Act 1991. Though it was not on all fours with the present proceedings, it considered some principles that may suggest a possible third reaction to a decision of the Commission. 154 In Winter Star Pty Limited v Dixon [(1994) 55 IR 187], a Full Bench of the then Industrial Relations Commission (Glynn and Cullen JJ, Redman CC), considered on appeal circumstances where, in unfair dismissal proceedings, one party (the employee) asserted an agreement, which had been breached, had been reached because of misrepresentations by the other party (the employer). 155 Briefly, the circumstances behind that appeal were that: In this matter, the initial application did not proceed beyond the conciliation stage. In accordance with s 247, Harrison CC endeavoured to settle the applicant's claim by conciliation. The conciliation proceedings before him were concluded on the basis that the parties had reached agreement to settle the claim in consonance with the terms of a document entitled deed of release which was tendered. The question arises therefore whether Harrison CC was in a position to put aside the Agreement negotiated by the parties as described in the "Deed of Release" document. … …Harrison CC did not conclude the matter, by making a formal order in the terms of the deed of release or by delaying his decision until the terms of such deed had been fulfilled. The matter came back before Harrison CC on the basis that the appellant had repudiated the Agreement and that the Agreement was thereby terminated. … In this matter Harrison CC did not adjudicate on the issue in the first proceedings. He presided over conciliation proceedings during which the parties reached agreement on terms contained in "A sealed copy of a three page Deed of Release …" marked as Ex 1 which was tendered on 16 March 1993. The proceedings were concluded on the basis of Ex 1. 156 The Commissioner had exercised his discretion to allow another reinstatement application by the employee to be lodged out of time and had gone on to make orders in favour of the employee. The employer asserted that the remedy available to the employee was to enforce the agreement. 157 In coming to its decision to dismiss the employer's appeal against the Commissioner's decision, the Full Bench had considered the following authorities: In The Alfred Noble. The Bjornsterjne Bjornson. The Fridland [1918] Probate Division 293 at 296 the President of the Probate Division Court (Sir Samuel Evans) said: "Every court has the inherent right to set aside an order which it had made if it had been procured by fraud; and that rule applies to the Prize Court certainly as strongly as it does to any other Court…." … Dixon J in Grierson v The King (1938) 60 CLR 431 at 436 said that under the Judicature system: "… no court has authority to review its own decision pronounced upon a hearing inter partes after the decision has passed into a judgment formally drawn up." His Honour distinguished cases where there have been no determination by the Court. For example (in Grierson ): "If the prisoner has abandoned his appeal, the Court of Criminal appeal in England will exercise a discretion to allow him to withdraw his notice of abandonment, notwithstanding that it operates as a dismissal of the appeal." However, his Honour said: 'Under the judicature system an action may be brought to set aside a judgment obtained by fraud, but it is an independent proceeding equitable in its origin and nature. ( Ronald v Harper [1913] VLR 311 at 318, per Cussen J, Halsbury's Laws of England , 2nd ed, Vol 19, p 266 and the cases there collected, particularly Jonesco v Beard [1930] AC 298.)" 158 The statement set out above from the judgment in The Alfred Nobel was referred to by Roper J in Rose v Rose [(1939) 56 WN 101 at 102]. His Honour went on to say that in the case before him there had been no fraud and concluded: In view of the conclusion at which I have arrived, it is unnecessary to consider whether application by motion is the proper procedure for setting aside a decree of this Court on the ground that it was obtained by fraud: see Kemp-Welch v Kemp-Welch (1) ; ( [1912] p 82) Jonesco v Beard (2) ([1930] AC 298) 159 There were special circumstances in the Kemp-Welch matter (verdict by a special jury in a divorce case in 1912) that do not assist here. 160 In Jonesco, the catchwords and the headnote are of interest: Practice - Judgment obtained by Fraud - Setting aside - Mode of Procedure - Action - New Trial - Evidence - Jurisdiction It is the settled practice of the Court that the proper method of impeaching a completed judgment on the ground of fraud is by action, in which the particulars of the fraud must be exactly given and the allegation must be established by strict proof. Although there is jurisdiction in special cases to set aside a judgment for fraud on a motion for a new trial, if for any special reason departure from the established practice is permitted, the necessity for stating the particulars of the fraud and the burden of proof are in no way abated and all the strict rules of evidence apply. 161 Jonesco was referred to by Callinan J at [189] in DJL v Central Authority [2000] HCA 17 [(2000) 74 ALJR 706] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ), where he stated that statutory courts (in that court the Family Court) "lack inherent power to re-open perfected orders disposing of proceedings … . The stated exceptions to this general rule are few and rarely found in practice. On the current authorities they are confined (statute apart) to the correction of formal errors and the like, fraud, or failure to give a party a hearing". 162 In Smarzak v Grimes Management Services Pty Limited (Smarzak) [2000] NSWIRComm 73, Maidment J was required to determine in the course of an application under s 106 as to whether a binding settlement existed between the parties. The background to the Judgment re Motion was described by Maidment J: 1 By application under s 106 of the Industrial Relations Act 1996 ("the Act") Peter Smarzak sought orders against Grimes Management Services Pty Ltd ("Grimes"). 2 Hassett Dixon were the solicitors on the record for Mr Smarzak and Haywards the solicitors on the record for Grimes. Also Grimes had commenced proceedings against Mr Smarzak in the Downing Centre Local Court. 3 Mr Hassett , who is no longer the solicitor for Mr Smarzak, contends that the matter has been settled and that he is entitled to his fees from the settlement sum. Grimes disputes that settlement took place and, in the alternative, submits that any settlement resulted from misrepresentations from Mr Smarzak which would found rescission of the agreement to settle. THE CLAIM 4 By notice of motion Mr Hassett seeks a declaration that: The settlement agreement between the Applicant and the Respondent herein in the form of the Deed of Release annexed to the affidavit of Jonathon Hassett sworn September 1999 is binding on each of the parties. 5 and an order that: The settlement sum of $25,000 be paid by the Respondent as follows: (a) $9,245.00 to Jonathon Hassett, Solicitor. (b) $15,755.00 to the Applicant. 163 In the course of his consideration Maidment J stated: 41 Thus it seems to me that this Court has the power and is obliged to determine whether or not the matter has been settled if for no other reason than to ascertain whether or not a matter remains before it which requires hearing and determination. The determination of that issue is necessary, in my view, to prevent the abuse or frustration of process which must arise if, as a matter of fact and law, a binding settlement agreement exists between the parties . (My emphasis) 42 Clearly the Court cannot allow a party which perceives some resultant forensic or tactical advantage to purport to walk away from an agreement to settle and require a hearing of the issues which have been settled by binding compromise. 43 I am also of the view that power similarly exists to grant the orders sought by Mr Hassett in order to prevent the processes of the Court being used to obtain payment other than to the solicitor on the record at the time the agreement was reached. … 47 By at least 21 September, 1999 the parties were in complete agreement upon all terms of their bargain, all that remained was the execution of the formal documents being the Deed of Release and the notices of discontinuance of proceedings annexed thereto. Thus a contract binding the parties to pay and accept the $25,000, to meet their own costs and to execute the agreement and notices of discontinuance has come into existence. 48 The view I take is that an agreement of the kind described by Lord Blackburn in Rossiter v Miller and cited above in Masters v Cameron as an example of a first class agreement exists in the present case. 49 As no evidence was tendered on behalf of Grimes during the hearing of Mr Hassett's motion, it is not established that Grimes, "on the basis of false allegations, was induced into entering into an agreement with Mr Smarzak". The reason behind the decision of Grimes to attempt to escape from its agreement is not known to this Court and speculation is not warranted. 164 The application in Smarzak had not been finalised either by dismissal by the Court or by filing of a notice of discontinuance. 165 As was said by Schmidt J in an interlocutory decision Dr Payne v The University of Sydney [2000] NSWIRComm 102 at [94] (IRC97/4798, 5/7/00): The Court cannot overlook the important public interest in parties adhering to the bargains which they make in settlement of proceedings which they have brought, thereby bringing litigation to an end. This must especially be the case when one side of the bargain has acted in accordance with the agreement reached and the other has benefited as a result. That was plainly the case here, where Dr Payne himself sought payment of long service leave in advance in accordance with that agreement, before he sought to repudiate it. Here, it cannot be overlooked that the bargain was made during a second attempt at conciliation before the Court, in circumstances where the matter was otherwise listed for hearing, where the [sic] all parties were legally represented and where the Court was informed of the settlement reached and then also acted in accordance with that advice. … Dr Payne's submission was that in the event that his motion was not successful, a different course should be taken, namely that I should order the variation of the agreement reached on 28 October, in a number of respects, in accordance with s 106 of the Act. That submission must, of course, be rejected. There is no such application before the Court [but there is here] and it is difficult to see how such an application could, in any event, be pursued under s 106 of the Act. 166 Finality of litigation must, of course, be the outcome of due process. "Finality" of litigation obtained as a result of fraud would be abuse of process. I also have in mind, what was said by Maidment J in different circumstances in Smarzak at [41] that "this Court has the power and is obliged to determine whether or not the matter has been settled, if for no other reason than to ascertain whether or not a matter remains before it which requires hearing and determination". Abuse of Process 167 The further written submissions set out more succinctly the issues already dealt with to a certain degree in the substantive submissions. 168 On behalf of the Victor interests it is said: 5. In the present proceedings it is part of Victor's claim (see para 16 summons filed 5 November 2001) that the earlier proceedings were settled upon the precondition agreed on 5 February 2001 that his father's watch will be returned and that Joseph would help look after Riad their brother. That precondition only came into existence upon that day. It was not part of the evidence in the earlier proceedings and did not and could not form part of any issue that could or should have been litigated in the earlier proceedings. 6. The present proceedings were commenced before the respondents moved the Supreme Court to seek specific performance of the terms of settlement of proceedings no IRC 282 of 1999. The issues that the applicants seek to have determined in the present proceedings in the commission go to the unfairness of the terms of settlement. The Supreme Court does not have jurisdiction to determine that issue. The proceedings in the Supreme Court are contrary to the respondent's expressed desire to have their disputes with the applicants determined by the Commission: see transcript and 8 November 2001 at pp 135:1-6 in proceedings Joseph Lahoud & Anor v Victor Lahoud & Ors (No IRC 282 of 1999). 169 In reply it is said on behalf of the Joseph interests: 3. The two issues relied on by Victor Lahoud in his current proceedings were part of the factual matrix used by him to resist his brother's claim in the earlier proceedings. References to their late father's wrist watch and the care of their brother, Riad are cross referenced in the schedule at the front of the bundle of affidavits which were filed in those earlier proceedings. Those two issues were dealt with finally when the earlier proceedings were dismissed by consent. 4. It would be an abuse of process to allow the two issues to be re-agitated in Victor Lahoud's new proceedings in which he tries to avoid his obligations under the terms of settlement and release. These are not issues which came into existence on the day of settlement. They were live issues during the earlier proceedings. Not only could they have been litigated in those earlier proceedings, they were. 5. The Equity Division of the Supreme Court does have jurisdiction to consider whether the terms of settlement should be set aside because of these two issues. Victor Lahoud does not have to frame his case under section 106 of the Industrial Relations Act. … 6. The abuse of process in these proceedings is highlighted by paragraph 5 [set out earlier] of Victor Lahoud's further submissions. (a) His brother's earlier proceedings were dismissed. Joseph Lahoud cannot re-litigate his claim. (b) On the other hand Victor says (by reference to two issues canvassed in those earlier proceedings) that the terms of settlement themselves should be set aside. This would leave Joseph Lahoud in the worst of all worlds. He loses his claim against his brother because his proceedings have been dismissed while his brother, seeks to have the very settlement of those proceedings set aside. For Joseph Lahoud it is a no win situation. Victor Lahoud (quite unfairly) seeks the ultimate advantage for himself. That is why (with respect) the Commission should exercise its inherent jurisdiction to prevent such a grossly, prejudicial abuse of process. 170 I have concluded that an application under s 106 is not the appropriate vehicle by which the Victor interests can seek to set aside the terms of settlement. However, I do not find, nor could I, in view of the lack of evidence as the events leading to the drawing up of the terms of settlement, that there do not exist grounds to support the claim that the entering into the settlement by the Victor interests was induced by fraud. 171 Adopting what I consider to be the unavailable avenue of an application under s 106 to address that perceived fraud, does not of itself render the use of that avenue, abuse of process. I do not see that costs on an indemnity basis are justified. Conclusions 172 I now draw together a number of salient points from what has been discussed above: (1) Joseph instituted proceedings in the Commission seeking relief under s 106 against his brother Victor (matter no IRC99/282); (2) Settlement of those proceedings was arrived at between Victor and Joseph and that agreement was embodied in Terms of Settlement dated 6 February 2001; (3) On the basis of those Terms of Settlement, the Commission at the request of Victor and Joseph dismissed Joseph's application (IRC99/282); (4) That dismissal was a decision of the Court; (5) The fact that that dismissal was made by consent does not deprive it of finality ( Marks v National & General Insurance Co Ltd [(1993) 114 FLR 416 at 420]; (6) In coming to their agreement to settle Joseph's application under s 106 Victor and Joseph had entered into a contract binding them to the terms of it ( Smarzak at [47]; (7) The Terms of Settlement in matter no IRC99/282 constituted a binding contract that fell into the first case of contract described in Masters v Cameron (at 360); (8) Victor's application (IRC2001/7189) sought, under s 106 to avoid ab initio the Terms of Settlement in matter no IRC99/282; (9) In Anshun it was stated (at 603) that: It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment. (10) In this case, the outcome Victor seeks is not just in conflict with that earlier judgment (the dismissal of the 1999 proceedings). Victor seeks to reverse it; (11) That being so, Victor's application under s 106 is in any event estopped in accordance with the Anshun principle; (12) The principle in Nagle v Tilburg is that questions of jurisdiction should only be determined at an early stage when the absence of jurisdiction is clear; (13) The Commission is only considering the jurisdiction it has to determine Victor's claim under s 105 and s 106; (14) The Commission does have jurisdiction to set aside terms of settlement including a release ( Cukeric ); (15) However, that jurisdiction of the Commission may only be exercised in appropriate proceedings; (16) The Commission draws attention to the principles enunciated in The Alfred Noble (at 296) and other cases because of statements made earlier by the parties as to their preference for this Commission to be the forum to determine the dispute between them and because other possible approaches were raised by them in passing but dismissed without further discussion. 173 It is certainly clear what are "the parameters of the contract or arrangement" being advanced by the applicant as required by Nagle (at 11-12): the Terms of Settlement of earlier proceedings. 174 The Commission does have jurisdiction to set aside terms of settlement including a release (see David Jones Ltd v Cukeric (Cukeric) (1997) 78 IR 430). The terms of settlement, including the release, in Cukeric were part of an agreement reached between the parties as to the terms on which their relationship would come to an end. Those terms of settlement were part of a contract, arrangement etc which the applicant then presented to the Commission under s 275 of the then Act as being unfair. 175 This is a different case. In this case the Terms of Settlement embodied the parties' compromise of Joseph's application for relief under s 106 and finalised them. Of course, it is true, as is claimed by the Victor interests, the terms of settlement, including the alleged misrepresentations, did not exist at the time of the events that formed the basis for 1999 proceedings. They came into existence to finalise those proceedings. They cannot now be severed from those proceedings and transmogrified to become the basis for a new application under s 106. 176 The Commission finds that it does not have jurisdiction under s 105 and s 106 of the Industrial Relations Act 1996 (the Act) to grant the relief sought in matter no IRC2001/7189. 177 The court orders that matter no IRC 7189 of 2001 be permanently stayed. 178 This decision does not mean that the Victor interests are barred from pursuing other avenues of relief under the Act or elsewhere in relation to their claims that the settlement of the 1999 proceedings was induced by the misrepresentations of the Joseph interests in relation to their father's watch and the care of Riad. 179 If, as submitted by the Victor interests, the two additional matters (the watch and the care of Riad) are indeed separate matters not dealt with in the settlement but are preconditions to it, and stand apart, the Victor interests can also seek avenues to pursue relief as to them. 180 In the light of other matters between the parties still outstanding before the Commission I reserve the question of costs. ****************************

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