Youry Dawidar v One Steel Wire Pty Ltd and another

APPLICANT / RESPONDENT ON MOTION Mr A Campbell of counsel Solicitor: Ms M Jank Gerard Malouf & Partners

FIRST RESPONDENT/ APPLICANT ON MOTION LEGAL REPRESENTATIVES: Mr P Coleman of counsel Solicitor: Mr R Lindgren Rankin & Nathan

SECOND RESPONDENT/APPLICANT ON MOTION Solicitor: Mr A G Cardell-Ree Allens Arthur Robinson

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J Friday 10 December 2004

Application under section 106 of the Industrial Relations Act 1996

INTERLOCUTORY JUDGMENT [2004] NSWIRComm 372

1 In October 2002 Youry Dawidar, the applicant, sought relief under s 106 of the Industrial Relations Act 1996 claiming increased superannuation benefits. The respondents named in the summons for relief were Onesteel Wire Pty Ltd, the applicant's employer, and "BHP Superannuation".

2 The applicant had been employed by Onesteel between June 1975 and July 1986 as a Despatch Clerk. He became a member of "BHP Staff Superannuation Fund Index No 76210642" on 2 January 1976. In 1985 the applicant injured his back at work and subsequently received workers compensation in respect of the injury. In January 1986 the applicant took four months leave. In May 1986 the applicant applied for further leave. In July 1986, following an application for further leave, the first respondent advised the applicant that he should return to work on 31 July 1986 or his employment would be terminated. The applicant asserted he could not comply with the direction to return to work because of his medical condition. His employment was subsequently terminated and he was paid $16,169.00 representing the amount of "Gross Resignation Benefit" to the applicant's credit in the Fund.

3 The summons for relief was apparently drafted by the applicant. It made no allegations regarding unfairness and sought orders only against the second respondent, BHP Superannuation, that the second respondent pay to the applicant the difference between the Gross Resignation Benefit and the Gross Disability Benefit or, alternatively, the Retrenchment Benefit. The Retrenchment Benefit as at 31 July 1986 was alleged to be $28,303 and the Gross Disability Benefit, $53,549.75 plus a pension of $9,115.17 per annum.

4 In November 2002 Onesteel, the first respondent, moved the Court to dismiss the application on the ground that the applicant was prevented from maintaining the proceedings by virtue of the provisions of s 108B of the Act. There followed a lengthy period in which the applicant, or more precisely his original solicitor, Shalovsky & Associates, failed to comply with various directions for the filing and serving of relevant documentation.

5 On 18 March 2004 the applicant filed an amended summons for relief and in doing so named the second respondent as Total Risk Management Pty Limited (as successors to the trustees of the BHP Staff Superannuation Fund). The applicant sought declarations in relation to the second respondent and, in the alternative, an order against the first respondent that it pay to the applicant the amounts sought in the original summons for relief.

6 On 30 July 2004 the first respondent filed a second notice of motion seeking to have the proceedings dismissed for want of prosecution. On 6 September 2004 the second respondent moved the Court to dismiss the amended summons on the ground that the applicant was barred from seeking relief by s 108B of the Act. On 7 October 2004 the second respondent filed a second notice of motion to dismiss the amended summons for relief. The grounds relied on included reference to s 108B of the Act and, additionally, that as the laws of Victoria governed the relevant superannuation fund, the relief claimed fell outside the Commission in Court Session's jurisdiction.

7 I deal firstly with the first respondent's motion seeking to dismiss the summons on the ground that the applicant is prevented from maintaining the proceedings by virtue of the provisions of s 108B of the Act.

8 Section 108B of the Act is in the following terms: 108B Time for making application (1) An application for an order under this Division in relation to a contract that has been terminated must be made not later than 12 months after the termination of the contract. (2) The Commission does not have jurisdiction to extend the time for making any such application or to accept an application made after the time prescribed by subsection (1).

9 Section 108B was inserted into the Act by the Industrial Relations Amendment (Unfair Contracts) Act 2002 which came into effect on the date of assent, namely 24 June 2002. The applicant's employment, on his own admission, was terminated with effect from 31 July 1986. He filed his original summons for relief on 25 October 2002, after s 108B came into force. The applicant contended that the time limit in s 108B did not apply retrospectively to his claim by virtue of the decisions in Kennedy v Contract Transport Solutions Pty Ltd [2003] NSWIRComm 158 and Bowker & Anor v Software Engineers Australia (NSW) Pty Limited & Ors [2003] NSWIRComm 213 and the reasoning of the High Court in Maxwell v Murphy (1957) 96 CLR 261.

10 In Kennedy, Peterson J considered a strike out application on the grounds that an application brought under s 106 was time barred by virtue of s 108B. The relevant agreement in those proceedings was terminated sometime in February 2002 and the date of filing the summons for relief was 6 February 2003. His Honour, was not satisfied that 12 months had elapsed between the termination date and the filing of the summons. However, his Honour went on to consider the question of whether the application was time-barred under s 108B if in fact 12 months had elapsed and determined that s 108B did not apply.

11 After referring to Maxwell and Murphy, Peterson J stated: 25 In my view that authority demonstrates that any substantive right obtained by the applicant in February 2002 to commence this action will not be affected by the retrospective operation, as here the argument by CTS must involve, of a statutory provision such as s108B in the absence of an express intention in the statute. 26 Maxwell v Murphy was a case which concerned an attempt to invoke the provisions of the Compensation to Relatives Act which had been amended to extend a time limit for the bringing of an application from 12 months to six years. The particular case was one in which the 12-month time bar had actually operated, because the application had not been filed within 12 months. The subsequent amendment of the Act to provide six years time limitation was held not to have retrospective effect such that it could revive the right which had expired with the effluxion of the earlier time bar. In a sense that case is the mirror image of the present matter where an extended "time limit" is sought to be cut back by a later amendment. Therefore, I conclude that upon this approach to the construction of s108B(1) the Act does not provide a 12 months limitation which could exclude the summons for relief in this matter.

12 In Bowker, Schmidt J stated at [38]: 38 Furthermore, I do not accept that Kennedy was wrongly decided. Peterson J was there considering whether s108B was intended to operate prospectively, or retrospectively. His Honour concluded that prior to the date of assent, 24 June 2002, there was no time bar upon applications brought under s106 of the Act and that any substantive right which an applicant obtained prior to that date, to commence an action under s106 of the Act, would not be affected by the enactment of s108B, which had no retrospective operation. I agree. Her Honour went on to explain her reasoning.

13 In Larsen v Ondeo Nalco Australia Pty Ltd [2004] NSWIRComm 123, Marks J considered a motion by the respondent seeking to strike out a summons under s 106 that had been filed on 29 January 2004 in respect of an employment contract that was allegedly terminated on 15 October 2001. The applicant in those proceedings had contended that: … s 108B could not be construed or applied so as to impact upon a contract of employment which had been terminated prior to 24 June 2002. Accordingly, s 108B would not apply so as to preclude the applicant from filing a summons in these proceedings even though it was filed later than 12 months after the termination of the applicant's contract of employment with the respondent.

14 At [10] Marks J stated: 10 Consistent with authority, and, as a matter of logic, the first step in the approach to construction which is involved in the resolution of this issue is to examine the provisions of s 108B to determine the intention of the legislature in terms of whether a contrary intention appeared in the amending Act and to determine whether the language used permits of a presumption that the amending Act would not adversely impact upon any existing entitlements that may have accrued before the amendment came into effect. Such a presumption will apply except to the extent that the legislature can be said to have intended to the contrary.

15 After considering the terms of s 108B and after referring to Maxwell v Murphy, Attorney-General (QLD) v Australian Industrial Relations Commission (2002) 213 CLR 485; 117 IR 52 at [6] and Crowe v UCS Developments Pty Ltd (2003) 130 IR 266, Marks J stated at [20]: 20 Accordingly, I reject any interpretation of s 108B that would allow for any contrary intention which would have the effect of creating any presumption against retrospectivity. I hold that s108B should be construed so as to create an intention that s 30 of the Interpretation Act should not apply.

16 Marks J then considered s 30(1)(c) of the Interpretation Act 1987. In this respect, his Honour stated at [21]: 21 The parties' submissions addressed the effect of the operation of s 30(1)(c) of the Interpretation Act on the alternative hypothesis that I concluded that the relevant contrary intention did not appear within s 108B. Lest I be held incorrect in the approach to construction which I have concluded should apply, I propose to deal with the competing arguments concerning the application of s 30(1)(c). In summary, it was submitted on behalf of the respondent that no right, privilege, obligation or liability had been acquired or incurred or had accrued to the applicant under s 106 which was affected by the operation of s 108B. It was submitted on behalf of the applicant in reply that the ability or entitlement to commence proceedings under s 106 of the Act constituted a right which accrued to the applicant and which was obviously affected by the operation of s 108B.

17 Section 30(1)(c) of the Interpretation Act is in the following terms: (1) The amendment or repeal of an Act or statutory rule does not: … c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, …

18 After reviewing the authorities including Director of Public Works v Ho Po Sang [1961] AC 901, Abbott v Minister of Lands [1895] AC 425, Mathieson v Burton (1971) 124 CLR 1, Esber v The Commonwealth of Australia (1992) 174 CLR 430, Re Ross ex parte Australian Liquor Hospitality and Miscellaneous Workers Union [2001] FCA 770, Attorney-General (QLD) v Australian Industrial Relations Commission, NSW Aboriginal Land Council v Minister (1988) 14 NSWLR 685, Free Lanka Insurance Co Ltd v Ranasinghe [1964] AC 541, Majik Markets Pty Ltd v Brake and Service Centre Drummoyne Pty Ltd (1991) 28 NSWLR 443, Fisher v Madden (2002) 54 NSWLR 179, Hollingsworth v Commissioner of Police (1998) 47 NSWLR 104, GIO Australia Limited v O'Donnell (1996) 70 IR 1 and Beahan v Bush Boake Allen Australia Limited (1999) 47 NSWLR 648, his Honour concluded that: … there is no right or other matter referred to in s 30(1)(c) of the Interpretation Act which could be said to be affected by the operation of s 108B, on the hypothesis that there was the necessary contrary intention to allow s 30 to operate.

19 Marks J then considered the decisions in Kennedy, Bowker and Mullins v People Bank of Australia Pty Ltd (2003) 134 IR 1 and made the following observations at [53]: 53 The judgment of Peterson J in Kennedy v Contract Transport Solutions [2003] NSWIRComm 158 also dealt with the provisions of s 108B. It was not necessary for his Honour to consider in a definitive sense the matter which I am now asked to consider in these proceedings, because of the factual circumstances applying in those proceedings. His Honour expressed a tentative view which is contrary to the conclusion which I have reached in these proceedings. However it is clear from the judgment that his Honour was not given the benefit of reference to the extensive authorities and the detailed submissions which I have received during the course of submissions in these proceedings. In Bowker v Software Engineers Australia [2003] NSWIRComm 213 Schmidt J also reached a conclusion as to the operation of s 108B which is contrary to the conclusion which I have reached in these proceedings. Again, as appears from the judgment, her Honour was not referred to the recent decision of the High Court of Australia in Attorney-General (QLD) v Australian Industrial Relations Commission and many of the other authorities to which I have been referred in these proceedings. In Mullins v People Bank of Australia Pty Ltd [2003] NSWIRComm 457 Haylen J dealt with the provisions of s 108A, which arguably may attract different considerations than those applying to s 108B. Unfortunately, as appears from his Honour's judgment, his Honour was not referred by counsel in those proceedings before him to the High Court of Australia judgment in Attorney-General (QLD) v Australian Industrial Relations Commission and does not appear to have been assisted also in terms of the operation of s 30 of the Interpretation Act in the context of the right to bring an action under s 106 of the Act.

20 Marks J ordered that the summons be struck out. It may be noted that his Honour's judgment and orders in Larsen are the subject of an appeal.

21 Following the judgment in Larsen, a Full Bench of the Commission in Court Session in Aveling v UBS Capital Markets Australia Holdings Ltd [2004] NSWIRComm 261 (a reference under s 193 of the Act) considered: Whether s 108A applied to the applicant's contract of employment; because, in circumstances where the applicant's contract of employment with the respondent commenced on 1 April 2000 and was terminated by the respondent on 24 July 2002 with effect from 23 August 2002 (the last two dates being subsequent to the relevant legislative amendment taking effect on 24 June 2002), if s 108A had any relevant application, the applicant's remuneration package under his contract relevantly exceeded the cap fixed for the purposes of s 108A.

22 At [3] to [4] the Full Bench noted in respect of the applicant's contentions: 3 The application made by the applicant under s 106 alleges that his contract was unfair as it stood before s 108A commenced on 24 June 2002. He submits that he relies on facts and matters that occurred on and after 24 June 2002 only to demonstrate and quantify the unfairness in the contract as it stood before that date. It is contended that it would have been open to him to bring an application making the same allegations of contractual unfairness before the termination of his employment, and in any event before 24 June 2002. The applicant's submission is that, in these circumstances, s 108A has no retrospective operation such that it would operate to preclude his application under s 106 (the formulation of this and the preceding paragraph derives from paragraphs 3 to 5 of the applicant's submissions). 4 The applicant also casts his argument in another way; he says that the right to make an application under s 106 accrued to him when he entered into a contract of the relevant kind, without any other act being required of him. Thus, it is said, that right having accrued to him prior to the enactment of s 108A, he is entitled to commence s 106 proceedings at any time subsequent to the time the right accrued notwithstanding the terms of s108A.

23 Section 108A was enacted at the same time as s 108B and provides: 108A Employment contracts in respect of which applications cannot be made

(1) An application cannot be made for an order under this Division if the application relates to a contract of employment under which: (a) a remuneration package that exceeds the remuneration cap is paid or received (or is payable or receivable) during the period of 12 months immediately before the application is made (or, if the application concerned relates to a contract that has been terminated, immediately before the termination), or b) a remuneration package is paid or received (or is payable or receivable) during a period of less than 12 months immediately before the application is made (or, if the application concerned relates to a contract that has been terminated, immediately before the termination) that would, if the remuneration package had been paid or received (or been payable or receivable) for a period of 12 months, have exceeded the remuneration cap. (2) An application cannot be made for an order under this Division by a person who is a partner carrying on a business if: (a) the application relates to a contract between that partner and the other persons carrying on that business in partnership, and (b) the share of the net profits, or payments contingent on the net profits, of the business that are paid to or received by (or payable to or receivable by) the applicant during the period of 12 months immediately before the application is made (or, if the application relates to a contract that has been terminated, immediately before the termination) exceed: (i) $200,000, or (ii) if an amount is prescribed for the purposes of paragraph (b) of the definition of "remuneration cap" in subsection (3) - that amount. (3) In this section:

contract of employment means any contract or arrangement under which work is done by a person in the capacity of an employee, and includes a related condition or collateral arrangement with respect to such a contract.

employment benefit means a benefit provided to an employee at the cost of his or her employer (being a benefit of a private nature) and, without limitation, includes: (a) contributions payable to a superannuation scheme by an employer in respect of the employee, including any liability of that employer to make any such contributions or to pay costs associated with that scheme, or (b) the provision by an employer of a motor vehicle for private use by the employee, or (c) any other benefit prescribed by the regulations for the purposes of this definition. monetary remuneration includes any performance-related bonus or incentive payment.

remuneration cap means: (a) $200,000, except as provided by paragraph (b), or (b) any greater amount prescribed by the regulations (being a regulation that increases the amount by reference to increases in the amount referred to in section 83 (1) (b)). remuneration package means the total value of monetary remuneration and employment benefits payable or receivable under a contract of employment.

24 At [30] the Full Bench stated: 30 The opening words of s 108A plainly demonstrate that the section is intended to operate in futuro from the enactment of the section. The provision has no operation in respect of applications made before it commenced; that is, the kinds of circumstances considered in Gerrard v Mayne Nickless and Esber v The Commonwealth apply equally here but without the need to resort to s 30 of the Interpretation Act or its common law counterparts. But that conclusion has an important consequence. That is, s 108A not only precludes, but prevents, an application being made in respect of a contract with the indicia specified in the section; that is, it prevents an application being made of the relevant class or classes from the time the section operated. This analysis leads comfortably to the conclusion that the "drafter" of the legislation framed it in this way to demonstrate on its face the intention to exclude the operation of s 30 of the Interpretation Act .

25 In other words, the Full Bench was of the opinion that in respect of an application for relief under s 106 made after 24 June 2002 and involving an employment contract, s 108A prevented such an application being made where the remuneration package paid or receivable under the relevant contract during the 12 months preceding the application exceeded $200,000, regardless of whether the contract came into existence before or after 24 June 2002.

26 At [34] to [35] of the judgment in Aveling the Full Bench stated: 34 The ways in which the applicant frames his case have been noted earlier in paras [3] and [4]. There are a number of difficulties in accepting the correctness of the applicant's approach. First, it would frustrate the plain intention of s 108A and, as has already been noted (para [20]), it is difficult to conceive of more straightforward language than that used in the opening words of s 108A. 35 Second, if the applicant's contentions were accepted it would mean that any contract entered into prior to 24 June 2002 could potentially be the subject of s 106 proceedings subject only to it being held, presumably at trial, that the contract was, or was arguably, an unfair contract for the purpose of ss 105 and 106 either at its inception or it became an unfair contract some time between inception and 24 June 2002. Such a construction would make nonsense of the plain terms of s 108A and a fortiori , when regard is paid to the plain purpose of the provision and to the available extrinsic materials.

27 The Full Bench considered that the contrary intention of s 108A for the purpose of s 5(2) of the Interpretation Act was manifest and in that respect relied on the judgment of the High Court in Attorney-General (Qld) v AIRC at [51] to [57]. At [37] to [38] the Full Bench stated: 37 It must be noticed that the High Court in Attorney-General (Qld) was dealing with quite a different statutory scheme and, significantly, one where the High Court held that the effect of the amendments was to terminate even pending proceedings. Nevertheless, useful analogies may be drawn between s 108A of the Industrial Relations Act and the legislation analysed by Gleeson CJ. One example is the reference by his Honour to the words "must cease" being "a legislative command of a particular emphatic kind"; compare the words "an application cannot be made" in s 108A.

38 Similarly, his Honour's reference to the pivotal nature of the words in the legislation there considered "must cease dealing with" has a parallel to the pivotal role of the phrase in s 108A "if the application relates to a contract of employment under which ... a remuneration package that exceeds the remuneration cap is paid or received ..." etc. Finally, his Honour's reference, in para [56], to the language of the particular statutory provision being "clearly broad enough to encompass all proceedings before the [federal] Commission" and the related rejection of the attempt to introduce into the provision "an unexpressed temporal limitation on its operation" have respective parallels in this case to the breadth of s 108A and the contentions of the applicant.

28 In Aveling the questions referred were remitted to the trial judge (Marks J) who made the reference under s 193, to make orders in the motions before his Honour in terms of the reasons of the Full Bench.

29 There are four reasons why I have come to the view that s 108B precludes the applicant from maintaining the proceedings against the first respondent. The first reason is the decision of Marks J in Larsen. The applicant has given me no sound reason as to why I should take a different view to that taken by his Honour in that case to the extent that his Honour found, in effect, that an application for an order made after 24 June 2002 under s 106 in relation to a contract that has been terminated, must be made not later than 12 months after the termination of the contract and that in relation to such applications s 108B applies in respect of contracts terminated both prior to and after 24 June 2002: see [17] to [19] of Larsen. I have reservations, with respect, about whether or not Marks J was correct in his view regarding the question of whether an applicant has an accrued or acquired right under s 106 but it is unnecessary for me to visit that issue given that I accept his Honour was correct in coming to the view that he did regarding the construction of s 108B.

30 Mr Campbell of counsel for the applicant submitted that Larsen could be distinguished because in that case the application for relief was filed in January 2004, more than 12 months after the cut-off date of 24 June 2002, whereas the application in this case was filed in October 2002. In putting this submission Mr Campbell was contending, in effect, that s 108B only precluded the Court from dealing with applications made after 24 June 2002 where 12 months had elapsed between the termination of the employment contract and the filing of the application for relief. However, this was not what Larsen decided and as Mr Campbell properly conceded the judgment in Larsen was directly against his proposition. 31 Mr Campbell submitted that s 108B was merely procedural and that the ordinary presumption against retrospective operation was inapplicable. In Victrawl Pty Ltd v Telstra Corp Ltd (1995) 131 ALR 465 at 479-480 the High Court (Deane, Dawson, Toohey and Gaudron JJ) stated: The relevant question for the purpose of determining whether it is to be presumed that a statutory provision was not intended to have retrospective operation in the sense of applying to past events is not, however, whether it can be broadly characterized as a procedural provision. It is whether the provision's operation is merely procedural in the sense that it would not, if given unconfined operation, affect pre-existing substantive rights or liabilities. It is only if a statutory provision is merely procedural in that narrow sense that the ordinary presumption against retrospective operation is inapplicable. As the Court explained in Rodway v The Queen [(1990) 169 CLR 515 at 518; 92 ALR 385 at 387 per Mason CJ, Dawson , Toohey , Gaudron and McHugh JJ]: The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance. But the difference between substantive law and procedure is often difficult to draw and statutes which are commonly classified as procedural - statutes of limitation, for example - may operate in such a way as to affect existing rights or obligations. When they operate in that way they are not merely procedural and they fall within the presumption against retrospective operation.

32 I have not been provided with any assistance, beyond a reference to the judgment in Larsen, as to whether s 108B is "merely procedural in the sense that it would not, if given unconfined operation, affect pre-existing substantive rights or liabilities". In any event, I have indicated my agreement with Marks J in Larsen as to the correct meaning and operation of s 108B and it is, therefore, unnecessary for me to consider the distinction between procedural provisions and provisions affecting rights. As it was made clear by Gleeson CJ in Attorney-General (Qld) v AIRC at [6] and Kirby J at [74]-[77] and adopted by the Full Benches in Crowe v UCS Developments at [36] to [38], Commander Australia Limited v Kerr at [35] to [40] and Aveling at [20] it is to the construction of the statute that attention must first be directed and if the intention of the legislature may be ascertained from the express words of the instrument viewed in their context it may be unnecessary to consider whether s 30 of the Interpretation Act applies.

33 The second reason is the decision of the Full Bench in Aveling. Aveling was concerned with s 108A of the Act. The Full Bench found that the intention of the legislature was to introduce provisions that would have the effect of immediately narrowing the application of the unfair contracts provisions of the Act by, amongst other things, preventing "the more extravagant and speculative claims". So it may be said as a consequence of the Full Bench decision in Aveling that regardless of whether a right had accrued to an applicant under s 106 prior to 24 June 2002 s 108A applies in respect of applications made after 24 June 2002. Section 108B was part of the same package of amendments as s 108A. If the legislature was concerned to impose immediate strictures on the application of s 106 through the introduction of s 108A it is difficult to see why it would take a different view in relation to the effect of s 108B. Thus, as Marks J remarked in Larsen at [19], contracts terminated prior to 24 June 2002, where years may have elapsed before an application was made, could be dealt with by the Commission in Court Session but the Commission would be deprived of jurisdiction with respect to applications brought after the expiry of 12 months where the contract is terminated after 24 June 2002. Such an outcome is not at all consistent with the objective, referred to in the Second Reading speech introducing the Industrial Relations Amendment (Unfair Contracts) Bill into the Legislative Council on 11 April 2002, of introducing "greater certainty" into the operation of the unfair contract provisions of the Act: see Hansard at 1399.

34 I also consider that the Full Bench's reasoning in Aveling regarding the wording of s 108A applies with equal force to s 108B for the reasons expressed by Marks J in Larsen. Section 108B(1) is quite unequivocal: "An application for an order under this Division in relation to a contract that has been terminated must be made not later than 12 months after the termination of the contract." In my opinion s 108B is expressed in "imperative terms" (see Attorney-General (Qld) v AIRC at [51]). Even if there had been an acquired or accrued right subsisting as at 24 June 2002 in the sense of s 30 of the Interpretation Act, s 108B evinces a contrary intention to the savings provision in s 30(1)(c) of that Act.

35 The third reason why I have come to the view that s 108B precludes the applicant from maintaining the proceedings against the first respondent is that the decision of Peterson J in Kennedy was specifically overruled by the Full Bench in Aveling. I note that the decision of Schmidt J in Bowker, where her Honour agreed with Peterson J, was not specifically overruled in Aveling. This may have been because of her Honour's consideration of the accrued rights issue that the Full Bench in Aveling did not find the need to consider. But it must follow that Bowker is also overruled to the extent that it followed Kennedy.

36 My fourth reason is that in the applicant's original summons for relief no allegations of unfairness and no relief were sought against the first respondent. The amended summons, filed on 18 March 2004, did seek orders against the first respondent. In Crowe v UCS Developments the Full Bench remarked at [56] that: 56 There may be circumstances in which an amendment to an original application may be so substantial or its nature such as to warrant the conclusion that it could be characterised as an application for an order caught by s 108B. That is not the situation here.

37 It seems to me that the amendment to the original application was so substantial in relation to the first respondent as to warrant the conclusion that it was squarely caught by s 108B. In other words the amended application was in fact a new application seeking relief against the first respondent and given it was made after 24 June 2002, s 108B applied to it.

38 I find that, pursuant to s 108B of the Act, I am precluded from dealing with the applicant's application for relief under s 106 in respect of the first respondent. It, therefore, becomes unnecessary for me to consider the first respondent's other notice of motion seeking to have the application dismissed for want of prosecution.

39 I turn to the second respondent. It too relied on s 108B as follows: first, if it be found that the Commission was precluded from dealing with the applicant's application in respect of the contract of employment with the first respondent by virtue of the provisions of s 108B it followed that all of the applicant's claims against the second respondent in relation to the termination of the applicant's contract of employment with the first respondent are barred by s 108B and must fail.

40 Secondly, to the extent that it was contended that the contract or arrangement between the applicant and the predecessor in title of the second respondent as trustee of the BHP Billiton Superannuation Fund was a contract or arrangement, it was a collateral contract or arrangement to the contract of employment between the applicant and the first respondent. It was submitted the collateral contract or arrangement cannot be viewed in isolation of the principal contract, i.e., the employment contract, and the termination of that contract causes the time to run in s 108B in respect of each contract or arrangement that is collateral to it.

41 Further, it was submitted, even if it were the case that s 108B required examination of the collateral contract or arrangement in isolation from the principal contract, the collateral contract or arrangement was terminated more than 12 months before the applicant commenced the proceedings. In its capacity as trustee of the Fund it was submitted the predecessor of the second respondent paid out certain benefits to the applicant and on doing so terminated his membership of the Fund. As a result, it was submitted, the applicant's membership of the Fund was terminated more than 12 months before he commenced the proceeding.

42 The second respondent also submitted that even if the Fund trust deed and rules could be viewed as a contract falling within the definition in s 105 of the Act, which the second respondent denied, it was not a contract that was governed by, or amenable to, the laws of New South Wales. Consequently, it was submitted, the applicant's claims for relief against the second respondent in relation to the operation of the Fund or related to the terms of the Fund were beyond the Commission's jurisdiction and must fail: Gosper v Sawyer (1985) 160 CLR 548; 58 ALR 13; 9 IR 452; Wreckair Pty Limited v Fernance (1995) 58 IR 343.

43 The summons for relief filed by the applicant on 25 October 2002 seeks: An order declaring that the Gross Resignation Benefit paid to the Applicant by the Second Respondent effective 31 July 1986 be varied to: a) the Gross Disability Benefit effective at the same date together with pension; or, in the event that Order 1(a) is not made, to: (b) the Retrenchment Benefit effective at the same date. 2) An order that the Second Respondent pay to the Applicant the difference between the Gross Resignation Benefit and the appropriate Benefit and accumulated past pension in the case of 1(a), together with the cumulative interest on that difference (whether in the case of 1(a) or (b) above) from 31 July 1986 to date, continuing pension (in the case of 1(a) above) and legal costs.

44 It is not easy to make sense of the claim but it would appear to be a claim by the applicant for orders to, firstly, vary the nature of a benefit provided for in a superannuation fund from Gross Resignation Benefit to Gross Disability Benefit (or, alternatively, Retrenchment Benefit) and, secondly, pay the difference between what the applicant received from the fund as a Gross Resignation Benefit and the benefit claimed.

45 It is to be noted that the summons for relief contains no application for an order declaring wholly or partly void, or varying, any contract whereby a person performs work in any industry and no pleadings regarding unfairness. The amended summons for relief filed on 18 March 2004 by Shalovsky and Associates, solicitors, again contains no application for an order declaring wholly or partly void, or varying, any contract whereby a person performs work in any industry and no pleadings regarding unfairness.

46 The summons and amended summons for relief are so generally deficient that it is open to the Court to set aside the proceedings on that basis alone. However, the second respondent has postulated that it could be argued by the applicant that there are three contracts or arrangements that could provide the foundation for his claim against the second respondent and I have summarised the second respondent's position in relation to those three contracts or arrangements.

47 I am satisfied that in relation to each of the three postulated contracts or arrangements I would be deprived of jurisdiction to deal with the applicant's claims against the second respondent for the reasons articulated by the second respondent. That is, in relation to the contract of employment between the applicant and the first respondent under which it is assumed the applicant became a member of the superannuation fund and in relation to the assumed contract or arrangement between the applicant and the predecessor in title of the second respondent as trustee of the superannuation fund, the application is barred by s 108B.

48 In relation to the third assumed contract or arrangement, namely, the contract or arrangement embodied in the terms of the trust deed and rules pursuant to which the fund was established, the rules of the fund that determine the benefits payable, according to cl A.2.4 of the consolidated rules, are governed by the laws of Victoria. Consequently, even if the rules could be said to be a contract or arrangement coming within the meaning of s 105 it is not a contract or arrangement which is governed by, or amenable to, the laws of New South Wales: Gosper v Sawyer at 560-561 per Gibbs CJ, Wilson and Dawson JJ and at 569 per Mason and Deane JJ.

49 Finally, in relation to the amended summons for relief filed by the applicant on 18 March 2004, whether one regards it as an merely an amendment to the original summons filed on 25 October 2004 or a new summons, for the reasons given in relation to the original summons the Court is precluded from dealing with the amended summons.

50 The Court makes the following orders: 1 The summons for relief filed by the applicant on 25 October 2002 and the amended summons for relief filed on 18 March 2004 are dismissed. 2 Costs are reserved. 3 Liberty to apply as to costs. _________________________

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.