Victor Lahoud v Joseph Lahoud

21 The respondents submitted that her Honour's decision was entirely consistent with the High Court decision of Masters v Cameron (1954) 91 CLR 353. Finally, it was submitted for the respondents the appeal did not raise substantial issues of principle or law given her Honour noted that the Commission does have jurisdiction to set aside Terms of Settlement including a release, but that it was not appropriate to do so in this case.

22 Leave is not a mere formality and is to be applied judicially by the Full Bench upon a proper case being made out by the appellant: Perrott v Xcellenet Australia Ltd (1998) 84 IR 255 at 265-266. A matter of importance may include substantial questions of law and principle, or something of importance for the jurisprudence of the Commission (Knowles v The Anglican Property Trust (No. 2) (1999) 95 IR 380). 23 This appeal is brought from an interlocutory decision. Generally, the Commission is reluctant to grant leave in such cases and in line with its predecessors and the ordinary courts, considers that an appeal of that nature is "generally deprecated and discouraged" (Caltex Petroleum Pty Limited v Harmer (1999) 92 IR 264 at 265).

24 Where an interlocutory decision affects substantive rights leave may be more readily granted: see, for example, Caltex Petroleum Pty Limited v Harmer (1999) 92 IR 264 at 266, citing Re the Will of F B Gilbert (1946) 46 SR (NSW) 318 at 323 per Sir Frederick Jordan CJ. An interlocutory decision on jurisdiction may be an example of such a decision. (See, for example, Metrocall Inc v Electronic Tracking Systems Pty Limited (2000) 101 IR 66.)

25 However, the raising of a jurisdictional issue by an appellant does not, of itself, justify leave as each case is to be judged according to the statutory criteria. In such situations, the Commission should have regard to the nature of the jurisdictional issue and whether there is a demonstrable case that the Commission has exceeded or failed to exercise its jurisdiction. This consideration will involve a question as to whether the decision appealed from was inconsistent with established law and principle (Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381).

26 It will be seen from our judgment in this matter that we have concluded Glynn J erred in two significant respects, firstly, in relation to whether there was jurisdiction to hear and determine the matter and, secondly, in relation to the application of Anshun estoppel. Her Honour's decision is inconsistent with established law and principle and cannot be allowed to stand. The jurisdictional issues raised are of significance to the jurisprudence of the Court in unfair contract matters. Leave to appeal is, therefore, granted. We now turn to consider the merits of the appeal.

27 In her judgment on the notice of motion by the Joseph interests given on 9 August 2002, Glynn J found that she did not have jurisdiction under ss 105 and 106 of the Act to grant the relief sought and ordered that the proceedings in matter no IRC 7189 of 2001 be permanently stayed.

28 It would appear that in finding she had no jurisdiction to grant the relief sought by the Victor interests, her Honour took the view that the Terms of Settlement dated 6 February 2001 made between the Victor interests and the Joseph interests was not a contract or arrangement whereby a person performs work in any industry. 29 At pars [135] and [136] of her judgment Glynn J said: 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.

30 Her Honour appears to have taken the view that the Terms of Settlement were just that: binding Terms of Settlement of earlier proceedings and as such quite distinguishable from a contract or arrangement whereby a person performs work in any industry which, of course, is the critical test to be applied in determining whether there exists jurisdiction under s 106 of the Act. Absent such a contract or arrangement, there is no jurisdiction: Stevenson v Barham (1977) 136 CLR 190 at 201; Production Spray Painting & Panel Beating Pty Ltd & Others v Newham & Others (1991) 27 NSWLR 644; Euphoric Pty Limited v Ryledar Pty Limited and Anor [2002] NSWIRComm 136. 31 Her Honour made reference in pars [141] and [142] of her judgment to the decision in Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589. Her Honour said: 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.

32 It is not clear from those two paragraphs of her Honour's judgment whether, in referring to the application falling over at the "first hurdle", Glynn J meant the jurisdictional hurdle (i.e., no contract or arrangement whereby a person performs work in any industry) or the hurdle of conflicting judgments referred to in Anshun. This complication is compounded by the fact that notwithstanding her Honour found she had no jurisdiction to entertain the application, she made orders permanently staying the proceedings.

33 At pars [173] to [175] of her judgment her Honour said: 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.

34 Glynn J appeared to be suggesting that, on the authority of Cukeric, the Commission in Court Session does have jurisdiction to set aside Terms of Settlement. However, in par [175] her Honour took the view that the Terms of Settlement had to be seen as part of the 1999 proceedings and "cannot now be severed from those proceedings". This would appear to indicate thinking on her Honour's part that the Terms of Settlement were part of the 1999 proceedings which have been finalised and that by virtue of Anshun cannot be re-litigated.

35 We have come to the conclusion that whilst Glynn J held a view that the Victor interests were estopped from pursuing their claim for relief under s 106 of the Act by virtue of the Anshun principle, the gravamen of her judgment was that she lacked jurisdiction because the Terms of Settlement did not constitute a "contract whereby a person performs work in any industry". It, therefore, becomes necessary to consider the correctness or otherwise of her Honour's decision in determining the jurisdictional issue in the threshold way she did. In other words, whether Glynn J was in a position to determine what were the parameters of the contract or arrangement or whether further evidence and argument was required in order for that determination to be made. Summary disposal of summons for relief

36 As we have already observed, the Commission in Court Session's jurisdiction to make orders under s 106 of the Industrial Relations Act is enlivened only whether there is "any contract whereby a person performs work in any industry": s 106(1). It is, of course, open to a party to make a threshold challenge to jurisdiction as the Full Court held in Nagle (T/as W D and J L Nagle & Sons) v Tilburg (1993) 51 IR 8 at 10-11 where it said: 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 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."

37 The Full Court in Nagle v Tilburg continued 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.

38 The judgment in Nagle v Tilburg was recently referred to with approval by Wright J, President and Walton J, Vice President (Schmidt J not dissenting) in Euphoric Pty Limited v Ryledar Pty Limited and Anor [2002] NSWIRComm 136 where, after referring to the passages quoted above from Nagle v Tilburg their Honours said at pars [9] to [14]: 9 This approach has been followed and adopted in numerous cases in both the Court Session and the Commission. The analysis of that judgment which was essayed in Virtue v New South Wales Department of Education and Training (1999) 92 IR 428 at 447 - 448 has been cited and followed in a number of subsequent judgments; see, for example, Heath Group Australasia Pty Ltd v Pengly [2001] NSWIRComm 241; Hall v Strathfield Group Ltd [2001] NSWIRComm 266 (subject to appeal); Alsford v Castech Pty Ltd [2001] NSWIRComm 259.

10 The applicable principles were set out in Virtue in this way at 447 - 448: (1) The discretion of a court to determine a case at an early stage, when appropriate, has been repeatedly accepted.

(2) As a general rule it is desirable that an objection to jurisdiction be determined as early as circumstances will conveniently admit so that the tribunal does not embark on a hearing which it lacks authority to conduct. The course of a court entertaining a challenge to jurisdiction in a preliminary or threshold way is 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. (3) However, a further general proposition is that all issues arising should be dealt with in the substantive proceedings unless the basis for a challenge, either on jurisdictional grounds, or for lack of a reasonable cause of action, be clearly demonstrated.

(4) Threshold relief of the kind sought here 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. (5) Necessarily, refusal of relief at the threshold will not finally determine that jurisdiction exists for any order which the Court 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. The resulting burden is a heavy one.

(6) Accordingly, 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, 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. (7) Similarly, 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 was clearly demonstrated. 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. 12 However, as indicated in the fifth proposition cited above from Virtue "refusal of relief at the threshold [that is on a basis of a preliminary point or motion] will not finally determine that jurisdiction exists for any order which the Court might make between the parties". In other words, it remains open to a respondent unsuccessful on a preliminary motion to maintain its arguments as to lack of jurisdiction for the purposes of the final hearing. 13 Further, as observed in the seventh proposition and 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". 14 The jurisprudence of this Court represented by the judgment of the then Full Industrial Court in Nagle v Tilburg , and the cases which have followed it, has been important in controlling a practice which had developed in the jurisdiction of some respondents too readily raising jurisdictional arguments at an early stage, at times with at least the appearance of a forensic tactic or an attempt to place logistical difficulties in the way of a less well-resourced applicant. The decision in this matter should not be seen as, or become, a basis for the rigour which has hitherto been exercised in the jurisdiction to be lessened. These observations are made only to emphasise the decision in this matter has depended on the very particular and relatively rare set of circumstances raised by these proceedings. It should not be interpreted or considered by those who practice in the jurisdiction as signifying any lessening of the stringency with which the approach in Nagle v Tilburg will be adhered to. We concur with the observation made by Wright J and Walton J in Euphoric.

39 The respondents sought to characterise the applicants' case before Glynn J and on the appeal in the following way: 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. … In these proceedings, it is the terms of settlement dated 6 February 2000 [sic -2001], which are challenged by the applicants in their summons for relief … (claim 1 in the summons). Nothing in those terms of settlement brings it into the category of contracts for arrangements "whereby work is performed". Unlike the distribution agreement in Euphoric, no obligations are imposed upon any of the parties to perform any work at all. The submission made by the Victor Lahoud parties that work will have to be performed to give effect to the terms of settlement is not the purpose of the contract itself. At best there are incidental tasks to be done to give effect to the terms of settlement. That work is not the purpose of the terms of settlement itself. 40 During the course of submissions made on behalf of the applicants (appellants) in the proceedings before Glynn J, express reference was made to the basis upon which they intended to maintain their claim in terms of jurisdiction. In written submissions dated 28 February 2002 the following submission was made: 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 in paras 12-15 of their Submissions. At the close of evidence upon the hearing for final relief the applicants' case will be put in various ways which include: (a) in Terms of Settlement which the (sic) they seek to have declared void are a condition related to or an arrangement collateral to a contract of arrangement whereby the applicants and the Respondents brought the proceedings against the applicants in proceedings IRC282 of 10.99;

(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 IRC282 of 1999, the Terms of Settlement and the matters referred to in para 3 above;

(c) further or alternatively, the 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. 41 The above extract asserts in clear terms the basis upon which the applicants relied in order to establish jurisdiction. The submissions raised issues as to: whether the Terms of Settlement constituted a condition related to an arrangement collateral to a contract or arrangement whereby work was performed; or, whether they were a constituent of an overall arrangement; or, whether they were part of a contract or arrangement or, alternatively, a related condition or collateral arrangement whereby work was performed in an industry.

42 As we have already stated, Glynn J concluded at par [176] of her judgment that there was no jurisdiction to grant the relief sought in the proceedings. However, her Honour did not embark upon an analysis as to whether or not the Terms of Settlement constituted or could be characterised in such a manner as to attract jurisdiction under s 106(1). Her Honour referred to the "parameters of the contract or arrangement" in the context of the Terms of Settlement. At pars [173] to [175] her Honour said: 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 Cukevic ( 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.

43 We do not apprehend that the discussion contained in the above paragraphs constitutes an adequate analysis of the Terms of Settlement as to whether or not those terms might attract jurisdiction in the manner asserted by the appellants. To the extent that her Honour's judgment failed to address these matters and thereby failed to advance adequate reasons for the finding of lack of jurisdiction, the proceedings before her Honour miscarried.

44 A further matter is the well recognised principle that strikeout applications should only be considered and dealt with at the "appropriate time". Her Honour's judgment did not advance any reasons as to why it was appropriate to deal with the matter at the stage where no evidence had been filed in the proceedings on behalf of any party and where the only material before her Honour was the initiating summons and the notice of motion. In the face of submissions made on behalf of the appellants that they wished to adduce evidence before her Honour in support of their claim that jurisdiction did exist, it was not, in our opinion, appropriate to determine the proceedings without either affording the appellants an opportunity to put on such evidence as they wished to adduce in support of this aspect, or requiring them to do so, unless it was "plain that the invocation of the jurisdiction impugned is wholly misconceived or, upon analysis, lacks an arguable legal foundation". Given our view that her Honour did not have sufficient basis for concluding there was no jurisdiction, we consider that her failure to entertain evidence regarding the existence of jurisdiction allowed the proceedings to miscarry. The proceedings will accordingly require remittal to a judge of the Court for the hearing of the application brought under s 106 of the Act. Anshun estoppel

45 Given our conclusions in relation to the jurisdictional issue, we consider that it is appropriate to address the question of Anshun estoppel. There would seem to be little utility in arriving at a decision on appeal to refer the matter back to a member of the Commission in Court Session without determining the Anshun point which was fully argued before us. In any event, it would appear that Glynn, J also determined this issue, which will, therefore, require determination in this appeal.

46 The Anshun principle, as approved by the High Court in Port of Melbourne Authority v Anshun Pty Limited, was expressed by Sir James Wigram VC in Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 at 319 as follows: where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.

47 In the majority judgment of Gibbs CJ, Mason and Aickin JJ in Anshun their Honours considered that, in applying the principle, the proper approach was that (at 602-603): In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few.

48 The majority stated at 603-604 that: The likelihood that the omission to plead a defence will contribute to the existence of conflicting judgments is obviously an important factor to be taken into account in deciding whether the omission to plead can found an estoppel against the assertion of the same matter as a foundation for a cause of action in a second proceeding. By "conflicting" judgments we include judgments which are contradictory, though they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction.

49 The situation before Glynn J was, essentially, that the Joseph interests had made certain claims in 1999 for relief under s 106 of the Act. The claims were settled in conciliation proceedings. It was subsequently alleged by the Victor interests that the Joseph interests had reneged on, or repudiated, the Terms of Settlement and in a summons for relief sought orders declaring void ab initio the Terms of Settlement and an order that the Joseph interests re-pay to the Victor interests the sum of $570,000 which had been part of the Terms of Settlement.

50 It was alleged by the Victor interests that in reneging on the Terms of Settlement Joseph had failed to return a watch to Victor that had belonged to their father and that Joseph had repudiated any knowledge of an agreement that he would assist in the care of their brother Riad. Victor alleged that the agreement relating to the watch and care of Riad was a private agreement between himself and Joseph made as part of the Terms of Settlement but it was not reduced to writing because both he and Joseph felt that it would be embarrassing to the family to document matters of such a private and personal nature.

51 As we understand the respondents' position it is that the claims in the original summons of the Joseph interests have been settled and, by dismissing the summons by consent, that particular litigation has been finalised. It followed, it was contended, that the Victor interests cannot seek to have those issues that were the subject of the Terms of Settlement, re-litigated.

52 In her judgment Glynn J appears to have agreed with the respondents' position. Her Honour quoted an extract from Anshun as follows: A party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment.

53 Her Honour appears to have taken the view, having dealt with Joseph's claims in his original summons by endorsing Terms of Settlement involving the payment by Victor to Joseph of $570,000, that if she were to allow Victor to bring his action to recover the $570,000 and if it were to succeed, the result would be conflicting judgments.

54 The extract quoted by Glynn J from Anshun has to be seen in its proper context. The High Court in Anshun was concerned with a situation where a right asserted in a second cause of action could and should have been raised in the earlier action in which judgment had been entered. The Court was concerned that to have allowed the plaintiff to assert the right may have resulted in contradictory judgments which ought not be permitted save in special circumstances.

55 The prospect of conflicting judgments is "an important factor to be taken into account …" (see Anshun at 603) but it is a subsidiary consideration in determining whether or not Anshun estoppel is applicable. The relevant question here is whether the claim sought to be raised by the Victor interests in their summons for relief in the 2001 proceedings: a) could have been raised in the 1999 proceedings, and; b) raised matters so clearly part of the subject matter of the 1999 proceedings that it was unreasonable on the part of the Victor interests not to have raised that claim in those proceedings (see Priestley JA in Rahme v Commonwealth of Australia (NSWCA, unreported, 20 December 1991), referred to with approval in Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287).

56 It seems to us that, in light of the alleged repudiation of the Terms of Settlement, the Victor interests have a new cause of action. The issues raising the allegations of repudiation, namely, the custody of the watch and the care of brother Riad, did not arise as issues until after the first proceeding were dismissed. Consequently, it could not be said that it was unreasonable for the Victor interests, in asserting their claims in the second proceeding, to have refrained from raising those claims in the earlier proceeding. 57 Even if it could be said that the Anshun principle was applicable because the Terms of Settlement leading to the dismissal of the 1999 proceedings included the issues relating to custody of the watch and care of brother Riad (albeit sub silentio) and because of the prospect of conflicting judgments, there are special circumstances which, in our opinion, would preclude its application in this case. Joseph and Victor settled the first action but the allegation was that Joseph repudiated or reneged on the Terms of Settlement. That puts an entirely new complexion on matters, involving as it does supervening factors not in issue in the original litigation and which the Victor interests are entitled to have addressed by a court of appropriate jurisdiction.

58 The respondents contended that the appropriate court was the Equity Division of the Supreme Court. That may be so but that is not a basis for asserting that this Court has no jurisdiction to deal with the matter.

59 As to the respondents' contention that the 2001 proceedings are an abuse of process, for the same reasons that we have rejected the submission that Anshun estoppel applies, we hold that there is no abuse of process.

60 We find that Glynn J erred in relying to any extent on Anshun estoppel to permanently stay the proceedings.

61 After this judgment had been written, by letter dated 16 June 2003 the solicitors for the respondents brought to the Court's attention a judgment of the Court of Appeal in Mitchforce v Industrial Relations Commission & Ors [2003] NSWCA 151 given on 13 June 2003. In a separate letter dated 16 June 2003 lawyers for the respondents provided written submissions to the effect that Mitchforce supported the respondents' contentions on appeal that the Terms of Settlement were not a contract or arrangement "whereby work is performed in any industry".

62 On 17 June 2003, when judgment on the appeal was due to be delivered, the respondents were asked whether by their correspondence they were seeking to have the hearing of the appeal re-opened. That question was answered in the affirmative. The application to re-open was opposed by the appellants. After consideration, we determined to grant leave to re-open but only in three respects, namely to receive and have regard to: 1. The judgment in Mitchforce ; 2. The written submissions filed by the respondents on 16 June 2003; and 3. Oral submissions made by the parties on 17 June 2003 regarding the implications of Mitchforce for the judgment on appeal.

63 We indicated to the parties on 17 June 2003 that in light of the decision to grant leave to re-open we would further reserve judgment and deliver it on 19 June 2003.

64 The judgment of the Court of Appeal in Mitchforce will have implications for any decision as to whether or not the Commission in Court Session has jurisdiction to entertain the appellants' claim for relief under s 106 of the Act. However, having regard to what we have said in pars [40] to [44] of this judgment it should be apparent that we consider Glynn J acted prematurely in determining the question of jurisdiction. Further, the appellants have not been afforded the opportunity to bring evidence in relation to the fundamental issue of the characterisation of the Terms of Settlement. Accordingly, as we have already determined, the proper course is to remit the matter in order to have the question of jurisdiction considered (including the judgment in Mitchforce) at the appropriate stage of proceedings.

65 The Full Bench orders that: 1. Leave to appeal is granted. 2. The appeal against the judgment and orders of Glynn J of 9 August 2002 is upheld and her Honour's orders are quashed. 3. The proceedings are to be reallocated to a judge of the Commission in Court Session to be dealt with in accordance with the reasons in this judgment. 4. The respondents shall pay the appellants' costs of the appeal.

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