FEDERAL COURT OF AUSTRALIA

Bank of Queensland Limited (ACN 009 656 540) v Industrial Court of

New South Wales [2008] FCA 324

PRACTICE AND PROCEDURE – consideration of an application to transfer pursuant to the Jurisdiction of Courts (Cross‑Vesting) Act 1987 (Cth), Federal Court proceedings to the Supreme Court of New South Wales – consideration of whether s 179 of the Industrial Relations Act 1996 (NSW) (‘IR Act’) arguably operates so as to deprive the Federal Court of Australia of jurisdiction to determine whether s 106 of the IR Act is inconsistent with s 7(1)(c) of the Independent Contractors Act 2006 (Cth) and to the extent of the inconsistency invalid by reason of s 109 of the Commonwealth Constitution, for the purposes of the transfer application – consideration of the criteria for transfer of proceedings

Jurisdiction of Courts (Cross‑Vesting) Act 1987 (Cth), s 5(4)

Industrial Relations Act 1996 (NSW), s 105, s 106, s 151, s 151A, s 153

Independent Contractors Act 2006 (Cth), s 5(1), s 5(2), s 7(1)(c)

Trade Practices Act 1974 (Cth)

Fair Trading Act 1987 (NSW)

Australian Securities and Investment Commission Act 2001 (Cth)

Ex parte McLean (1930) 43 CLR 472 - cited

The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 - cited

The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty Ltd (1953) 88 CLR 100 - cited

Felton v Mulligan & Anor (1971) 124 CLR 367 - cited

Fish v Solution 6 Holdings Ltd (2006) 80 ALJR 959 - cited

Batterham v QSR Limited (2006) 80 ALJR 995 - cited

Old UGC Inc v Industrial Relations Commission of New South Wales in Court Session (2006) 80 ALJR 1018 - cited

Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 - cited

Hollis v Vabu Pty Ltd (2001) 181 ALR 263 - cited

BANK OF QUEENSLAND LIMITED (ACN 009 656 540), DAVID LIDDY, DONNA QUINN AND GARY ALLSOP v INDUSTRIAL COURT OF NEW SOUTH WALES, ROSSMICK NO. 1 PTY LTD (ACN 110 291 015), ROSSMICK NO. 2 PTY LTD (ACN 113 008 352), MICHAEL BRADLEY, ROSS CHAPMAN, LUKE NOLAN, JUDE FINANCIAL SERVICES PTY LTD (ACN 115 763 481), RUSSELL JUDE EDWARD GARDNER, PENELOPE ANN GARDNER, SME BUSINESS ASSIST PTY LTD (ACN 108 524 232), AND SCOTT ROLF McCOY

QUD227 OF 2007

GREENWOOD J

12 MARCH 2008

BRISBANE

THE COURT ORDERS THAT:

1.                  The notice of motion filed by the respondents (as applicants on the motion) by which an order is sought pursuant to the Jurisdiction of Courts (Cross‑Vesting) Act (1987) (Cth) for transfer of the proceeding to the Supreme Court of New South Wales is dismissed. 

2.                  The costs of and incidental to the application are reserved. 

3.                  Paragraphs 58, 59, 60‑63, 66, 67 and 85‑94 of the defence of the respondents filed on 19 October 2007 are struck out.

4.                  The costs of and incidental to the notice of motion filed by the applicants in the proceeding for an order that the paragraphs in the defence nominated in the notice of motion be struck out, are reserved. 

5.                  The applicants in the proceeding shall file and serve written submissions within 14 days as to whether the costs of and incidental to the notice of motion filed by the respondents seeking a cross‑vesting order ought to be reserved to the disposition of the proceeding or whether orders in relation to the costs of the motion ought to be made consequent upon the determination of the motion in the light of the reasons for judgment and if earlier orders are to be made, submissions as to the disposition of costs of and incidental to the motion. 

6.                  The respondents in the proceeding shall within a further 14 days file and serve submissions in reply.

7.                  Each of the parties shall in exchanging written submissions in relation to the costs of the notice of motion filed by the respondents shall also address the disposition of the costs of and incidental to the notice of motion filed by the applicants in the proceeding for the striking out of the nominated paragraphs of the defence filed by the respondents. 

8.                  The proceeding shall be listed for further directions at 9.30am on Thursday, 20 March 2008. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     There are two notices of motion filed in this proceeding before the Court for disposition.  The first is a motion filed by the second to eleventh respondents (which I will describe also as the OMB parties) for an order pursuant to s 5(4) of the Jurisdiction of Courts (Cross‑Vesting) Act 1987 (Cth) (‘Cross‑Vesting Act’) that the proceeding be transferred to the Supreme Court of New South Wales.  By the second notice of motion, the applicants in the proceeding (which I will describe also as the Bank parties) seek an order that particular paragraphs of the defence of the second to eleventh respondents be struck out although, in submissions, the order sought was confined to paras 58 to 63, 66, 67 and 80‑95 of the defence of those respondents. 

2                     Both motions were heard on 11 December 2007.  The OMB parties have filed a substantial body of affidavit material in support of the cross‑vesting motion deposing to all of the various Court proceedings arising out of the events to be described shortly and, in particular, a number of proceedings commenced before the Industrial Court of New South Wales.  The affidavits exhibit copies of the pleadings filed in each of the proceedings referred to in the affidavits read in support of the cross‑vesting motion. 

3                     The Bank parties oppose the transfer of this proceeding to the Supreme Court of New South Wales and contend that the question of whether the interests of justice are best served by making an order for transfer requires a proper understanding of what is said to be the confined scope of the controversy to be quelled in this proceeding which is said not to involve any of the broad factual inquiries contended for by the OMB parties arising out of the issues framed by each of the proceedings in the Industrial Court of New South Wales (now transferred to the Supreme Court of New South Wales) and other proceedings (the Traderight proceeding) commenced in the Supreme Court of New South Wales and particular Federal Court proceedings.  By the various proceedings some or all of the respondents in this proceeding seek remedial orders arising out of contended causes of action based upon what is said to be a broad factual matrix of events, representations, arrangements and agreements made between the Bank, Bank individuals, particular corporations and individuals within the field of the OMB parties. 

4                     On 6 February 2008, the solicitors for the OMB parties sought to re‑list the hearing of the transfer motion to adduce further evidence.  Having regard to the availability of counsel, that application was heard on Friday, 7 March 2008 consequent upon further directions orders having been made.  The additional material includes an updated schedule of the various proceedings commenced either by the OMB parties or the Bank parties; copies of the amended summons for relief filed in each of the Industrial Court proceedings; pleadings filed in some other proceedings; and copies of correspondence exchanged between the parties on various questions. 

5                     I propose to first deal with the issues framed and submissions made by the parties on the hearing of the transfer motion late last year and then address the implications of the new material.  The Bank parties as respondents to the transfer motion did not object to the reception of the additional material.  However, they contend that the material does not alter the merits of their argument that a transfer order ought not to be made. 

6                     The Attorney‑General for the Commonwealth and each of the State Attorneys‑General were served with the notices under the Judiciary Act 1903 (Cth) (the ‘Judiciary Act’) and have not sought to intervene in the primary proceeding. 

The controversy raised by this proceeding

7                     The applicants are Bank of Queensland Limited (‘the Bank’); Mr David Liddy (‘Liddy’), the Managing Director and Chief Executive Officer of the Bank; Ms Donna Quinn (‘Quinn’), the Bank’s Group Executive responsible for the Bank’s franchise network; and Mr Gary Allsop (‘Allsop’), a Regional Manager employed by the Bank.  The applicants seek a series of declarations that the Industrial Court of New South Wales (‘the Industrial Court’) does not have jurisdiction or power under s 106 of the Industrial Relations Act 1996 (NSW) (the ‘IR Act’) to make orders sought by the OMB parties in the various proceedings commenced by them before the Industrial Court concerning agreements, in substantially identical terms, between the Bank and particular respondents for the appointment of the second, third, seventh and tenth respondents as the non‑exclusive agent of the Bank to operate an Owner Managed Branch (‘OMB’) of the Bank at sites described, respectively, as the Maroubra Junction OMB, the Hurstville OMB, the Bathurst OMB and the Bondi Junction OMB. 

8                     The essential contentions of the applicants are these. 

9                     By an agreement in writing (the ‘Maroubra Junction OMB Agreement’) dated 14 October 2004 between the Bank, the second respondent Rossmick No. 1 Pty Ltd (‘Rossmick 1’), Mr Chapman (‘Chapman’) and Mr Bradley (‘Bradley’) (said to be Directors and Principals of Rossmick 1 at all material times), the Bank appointed Rossmick 1 as its agent to operate an OMB which was established at Shop 7, Maroubra Road/Anzac Parade, Maroubra Junction, Sydney.  By an agreement in writing in substantially identical terms (the ‘Hurstville OMB Agreement’) dated 14 October 2004 between the Bank, the third respondent Rossmick No. 2 Pty Ltd (‘Rossmick 2’), Chapman, Bradley and Mr Nolan (‘Nolan’) (said to be Directors and Principals of Rossmick 2 at all material times), the Bank appointed Rossmick 2 as its agent to operate an OMB which was established at 243 Forest Road, Hurstville, Sydney. 

10                  By an agreement in writing (the ‘Bathurst OMB Agreement’) in substantially identical terms to the earlier two agreements, dated 23 September 2005, between the Bank, the seventh respondent Jude Financial Services Pty Ltd (‘Jude’) and Mr Gardner (‘Gardner’) (said to be the sole Director and Principal of Jude at all material times), the Bank appointed Jude as its agent to operate an OMB which was established at 39 William Street, Bathurst and by an agreement in writing (the ‘Bondi Junction OMB Agreement’), again in substantially identical terms to the earlier agreements, dated 23 August 2005, between the Bank, the tenth respondent SME Business Assist Pty Ltd (‘SME’) and Mr McCoy (‘McCoy’) (said to be the sole Director and Principal of SME), the Bank appointed SME as its agent to operate an OMB which was established at 500 Oxford Street, Bondi Junction, Sydney.  These agreements are referred to in these reasons as either the ‘OMB Agreement’ or the ‘OMB Agency Agreement’. 

11                  Controversy arose between the Bank on the one hand and Rossmick 1, Rossmick 2, Jude, SME and the individual respondents as directors of the respective entities, in relation to a range of issues. 

12                  As a result, on 30 May 2007 Rossmick 1, Rossmick 2, Chapman, Bradley and Nolan commenced proceedings against the applicants in the Industrial Court seeking orders pursuant to s 106 of the IR Act in relation to the Maroubra Junction OMB Agreement and the Hurstville OMB Agreement.  Similarly, on 7 June 2007, Jude, Gardner and Ms Gardner (the ninth respondent) commenced proceedings against the Bank in the Industrial Court seeking orders pursuant to s 106 of the IR Act in relation to the Bathurst OMB Agreement and on 5 June 2007, SME and McCoy commenced proceedings in the Industrial Court seeking s 106 orders in relation to the Bondi Junction OMB Agreement.  The applicants in those proceedings also seek orders in relation to collateral agreements and broader ‘arrangements’ said to have been made between the parties. 

13                  The Bank applicants in this proceeding contend that since 19 June 2007, no steps have been taken by Rossmick 1, Rossmick 2, Chapman, Bradley or Nolan in relation to the IR Act proceedings; neither Jude, Gardner nor Ms Gardner have taken any steps in the IR proceedings commenced by them in the Industrial Court; and nor have SME or McCoy taken any steps in the IR proceedings commenced by them. 

14                  The applicants in each of those proceedings contend that various steps inter‑parties have occurred in the conduct of each of those matters in the Industrial Court. 

15                  The Bank applicants in this proceeding say that the Bank appointed Rossmick 1, Rossmick 2, Jude and SME, by clause 3.1 of each of the OMB agreements, to act as its agent to operate an OMB; promote the Bank’s products and services; manage the administration of the Bank’s products and services to its customers through its OMB as directed by the Bank; facilitate customer banking products and services transactions; report activity to the Bank; manage customer complaints as directed by the Bank and perform any other tasks in connection with the operation of the OMB as directed by the Bank. 

16                  The Bank says that by clause 3.5 of each OMB agreement, each owner manager acknowledged that they are a non‑exclusive agent of the Bank; the Bank retains sole and absolute discretion to act as it sees fit with regard to (i) the appointment of other owner managers at any location; (ii) the terms and conditions of appointment of other owner managers; and (iii) the operation of its business; all customers who acquire the Bank’s products or services through the owner managed branch are the Bank’s customers and not the customers of owner managers; the owner manager must act in good faith and in the Bank’s best interests at all times even where so doing is inconsistent with the owner manager’s best interests; and nothing in the OMB agreement appoints the owner manager as employees, partners or joint venturers of the Bank. 

17                  The Bank says that by clause 6.1, the Bank agreed that where reasonably practicable, the owner managers would be permitted to deal in all general retail and small business banking products and services provided by the Bank through its branches.  The Bank says that by clause 10.1, owner managers have the sole responsibility for the engagement of personnel to operate the OMB; the cost of training personnel; the remuneration of personnel; the superannuation entitlements of personnel; all taxes relating to the employment of personnel; workers’ compensation obligations; personal leave obligations; and compliance with occupational health and safety laws. 

18                  The Bank says that by clause 10.2, owner managers agreed that they would appoint a branch manager for the owner managed branch; the branch manager would be a director or shareholder of the OMB; the branch manager would be responsible for the day to day operation of the OMB; the Bank’s approval would be sought for appointing a director or shareholder as branch manager; and the Bank’s approval would be obtained before any change in the appointment of a branch manager occurred.  By clause 10.3, owner managers agreed that any personnel must meet the Bank’s standards as to qualifications, experience and training.  By clause 28, the Bank agreed that it may authorise owner managers to provide additional specified financial services on behalf of the Bank. 

19                  Having regard to all of these matters, the Bank contends that the OMB agreements are contracts pursuant to which owner managers provide banking and financial services; in performing those services each owner manager is an independent contractor to the Bank and each owner manager and the Bank are constitutional corporations within the meaning of s 51(xx) of the Commonwealth Constitution (the ‘Constitution’).  Accordingly, each OMB agreement is said to be a ‘services contract’ for the purposes of the Independent Contractors Act 2006 (Cth) (the ‘Commonwealth Act’).  Section 7(1)(c) of the Commonwealth Act provides:

(1)       Subject to subsection (2), ‘the rights, entitlements, obligations and liabilities of a party to a services contract are not affected by a law of a State or Territory to the extent that the law would otherwise do one or more of the following:

            …

(c)        - expressly provide for a court, commission or tribunal to do any of the following in relation to a services contract on an unfairness ground:

(i)         make an order or determination (however described) setting aside, or declaring to be void or otherwise unenforceable, all or part of the contract;

(ii)        make an order or determination (however described) amending or varying all or part of the contract.

20                  By s 5 of the Commonwealth Act, a ‘services contract’ is defined in these terms:

5(1)     a services contract is a contract for services:

            (a)        to which an independent contractor is a party; and

(b)        that relates to the performance of work by the independent contractor; and

(c)        that has the requisite constitutional connection specified in subsection (2).

21                  A contract for services has the requisite constitutional connection ‘if at least one party to the contract is a constitutional corporation’ (s 5(2)).

22                  The Bank contends that s 106 of the IR Act is a law of a State which expressly provides for a court, commission or tribunal to make an order or determination declaring to be void or varying all or part of a services contract.  Section 106 is in these terms:

106(1)      The Commission may make an order declaring wholly or partly void, or varying, any contract whereby a person performs work in an 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. 

(2A)          A contract that is a related condition or collateral arrangement may be declared void or varied even though it does not relate to the performance by a person of work in an industry, so long as:

                 (a)   the contract to which it is related or collateral is a contract whereby the person performs work in an industry, and

                 (b)   the performance of work is a significant purpose of the contractual arrangements made by the person.

(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 the 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. 

(6)            In making an order under this section, the Commission must take into account whether or not the applicant (or persons on behalf of whom the application is made), took any action to mitigate loss.

23                  A contract for the purposes of Part 9 of the IR Act (which includes s 106) means ‘any contract or arrangement, or any related condition or collateral arrangement, but does not include an industrial instrument’ (s 105) and an unfair contract means (s 105) 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.

24                  The Commission is the Industrial Relations Commission of New South Wales established by the IR Act and the ‘Commission in Court Session’ means the Commission constituted by a judicial member or members exercising the functions conferred or imposed on the Commission in Court Session (s 151 of the IR Act).  The Commission in Court Session is the ‘Industrial Court of New South Wales’ (s 151A).  Section 153 confers upon the Industrial Court the function of determining proceedings under Part 9 of Chapter 2 of the IR Act which includes proceedings by which orders are sought under s 106 of the IR Act. 

25                  In each of the IR Act proceedings, the applicants in those proceedings (Rossmick 1, Rossmick 2, Jude, SME and the individual parties) seek a wide range of orders including orders pursuant to s 106 of the Act declaring the OMB agreement void ab initio apart from those provisions of the agreement as to payment to the OMB agent and orders declaring void ab initioother agreements entered into between the relevant parties for each owner managed site such as all guarantees and securities in support of the OMB agreement, a representations deed, a business term loan agreement and all guarantees and securities given in support of the obligations arising under the business term loan agreement. 

26                  The Bank contends that by reason of s 7(1)(c) of the Commonwealth Act and s 109 of the Constitution, the rights, entitlements, obligations and liabilities of the applicants (and the second to eleventh respondents) with respect to each OMB agreement are not affected by the provisions of s 106 of the IR Act.  By reason of s 7(1)(c) of the Commonwealth Act and s 109 of the Constitution, the Industrial Court does not have jurisdiction or power to make the orders sought by the applicants in the IR proceedings by reason of the inconsistency between the Commonwealth Act and the State Act.  Moreover, the Commonwealth Act is said to cover the field with respect to its subject matter including the granting of relief on an unfairness ground with respect to a ‘services contract’ which includes each OMB agreement. 

27                  The Bank says that in order to determine the controversy in this proceeding, it is simply necessary for the Court to examine each OMB agreement (and documents incorporated in that agreement by reference) and determine whether each agreement constitutes a contract; whether the contract is a contract for services; whether the contract is one to which an independent contractor is a party; whether the contract relates to the performance of work by the independent contractor; and whether at least one party to the contract is a constitutional corporation.  Otherwise, the question of inconsistency is to be resolved as a matter of construction of the provisions of the Commonwealth Act and the State Act. 

28                  Accordingly, the Bank says the scope of the controversy to be resolved is quite contained. 

The broader issues contended for by the OMB parties

29                  The OMB parties contend that there are complex questions of fact and law to be determined in resolving each of the matters identified at [26] and [27].  In the main, those matters go to the scope of ‘arrangements’ between the parties said to be collateral to the OMB Agreement, the question of whether the OMB agent in each case is properly described as an ‘independent contractor’ and whether the arrangements between the parties constitute a ‘contract for services’.  The respondents contend that prior to entering into each OMB Agreement, each of the natural person respondents had a number of meetings with various members of the Bank including Liddy, Quinn and Allsop in which the opportunity of purchasing and operating an OMB agency, as a franchise, was discussed.  During the course of these meetings, the respondents and the applicants are said to have struck certain arrangements with respect to the operation by an OMB agency for each identified branch.  These arrangements are said to include ‘written agreements, representations, warranties and arrangements (including OMB agreements) and certain unwritten representations, warranties, arrangements and conditions’.  The content of these arrangements and the legal consequences flowing from them are the subject of particular proceedings.  On 8 August 2007, Rossmick 1, Rossmick 2, Bradley, Chapman and Nolan commenced Federal Court proceedings (NSD1504/2007) against the Bank.  Those proceedings set out particular representations said to have been made by the Bank parties and arrangements made between the Rossmick parties and the Bank, Liddy, Quinn and Allsop concerning the Maroubra Junction and Hurstville OMB agencies.  The contended representations on the part of the Bank parties and arrangements said to have been made between the Bank parties and the OMB parties are set out in a lengthy pleading in the Rossmick Industrial Court proceedings (IRC928/2007). 

30                  Similarly, Jude, Gardner and Ms Gardner on 27 August 2007 commenced Federal Court proceedings (NS1712/2007) asserting particular representations by the Bank parties and arrangements made between the Bank, Liddy, Quinn and Allsop and the relevant OMB parties concerning the Bathurst OMB agency.  The Jude arrangements and contended representations on the part of the Bank are set out in the Jude Industrial Court proceedings (IRC927/2007).  On 5 June 2007, SME and McCoy commenced Industrial Court proceedings (IRC961/2007) in which the contended representations on the part of the Bank parties and arrangements made between the Bank parties and the relevant OMB parties relating to the Bondi Junction OMB agency are set out.  The OMB parties in these various proceedings contend that they were misled as to material matters in connection with the establishment and operation of each branch, acted in reliance upon the relevant matters, and suffered loss.  They also contend that arrangements and agreements were made arising out of the pleaded conduct.  Put broadly, the respondents seek remedial orders pursuant to the Trade Practices Act 1974 (Cth) (‘TPA’) and the Fair Trading Act 1987 (NSW) (‘FTA (NSW)’) in the Federal Court proceedings (and other relief) and, in the Industrial Court, orders are sought pursuant to s 106 and s 107 in respect of contended conduct of ‘inducement’. 

31                  The precise relief sought in each of the Industrial Court proceedings is discussed in these reasons. 

32                  By their defence in this proceeding, the OMB parties frame the factual controversy they contend is necessarily raised in answer to the claim of the Bank parties.  By para 52, pp 15‑36 of the defence, the respondents set out many of the terms of the OMB Agreement upon which they rely.  The respondents contend that they are not ‘independent contractors’ because, none of the respondents were conducting the business of an agency for a financial institution before entering into the OMB Agreement; nor did they do so for anyone after entering into the agreement other than the Bank; the OMB Agreement prohibited them from doing so; the OMB agent was subject to the direction of the Bank; the true character of the OMB Agreement (and collateral agreements as to funding by the Bank of agents fit‑out costs) is that of a mechanism for risk‑free access by the Bank to the capital of agents to establish and operate bank branches in New South Wales; the Bank, before and during the OMB Agreements determined the practices (lending ratios, valuation policy, interest rates etc) and financial products to be offered; the Bank controlled information as to banking practices; the OMB agent could not vary the terms of financial services offered; the intellectual property in any innovation made by the OMB agent would vest in the Bank; and other terms. 

33                  The thrust of all of these provisions recited by the respondents is to demonstrate a significant level of control by the Bank.  The respondents say that by reason of the contended arrangements and the OMB Agreement, each OMB agent was significantly constrained in many aspects of the operation of the OMB agency. 

34                  For all these reasons, the OMB agents are said to be neither ‘independent contractors’ nor parties to a ‘contract for services’. 

35                  The respondents say that if any characterisation is to be made, the OMB agent is a ‘franchisee’ of the Bank so far as the business is concerned and an agent of the Bank for some purposes.  Secondly, although the OMB agent performs work in conducting the OMB agency, the OMB agent and the individual respondents also perform work and provide services pursuant to the broader arrangements which include written and unwritten agreements and related representations.  Thirdly, these arrangements are said to include arrangements directly between individual respondents and the Bank made ‘before, at and after’ the OMB Agreement was made and fourthly, the ‘arrangements’ include borrowing agreements, the provision of guarantees and indemnities and related matters. 

36                  The respondents say it follows therefore that in order to determine the inconsistency question raised by these proceedings, threshold findings are required by s 7(1)(c) of the Commonwealth Act having regard to s 5 of the Act, and, as a result, a full examination of the arrangements made between the parties will be necessary.  The respondents put the necessary enquiry, in part, in these terms:

(a)       Who was doing what and when relative to the OMB Agency Agreement or other arrangements between the parties and what arrangements [were] made between whom and when?

(b)       Was what was being done, done in circumstances where it imports the character of a contract for services?

(c)        What are the characteristics of an ‘independent contractor’ as a matter of law?

(d)       Did or do the parties to the OMG Agency Agreement have those relevant characteristics under the agreement as a matter of practice?

(e)        Does modern industrial organisation admit of a third (or more) characterisation of relationships pursuant to which work is done which is outside the dichotomy of contracts for services and services contracts and in particular whether franchise arrangements are such a class?

(f)        If so, were the OMB Agency Agreement parties, parties to a franchise agreement?

(g)       Were the OMB agent respondents parties to a ‘services contract’ within the meaning of the Act?

37                  Put simply, the respondents say that the Court in this proceeding will be required to make findings of fact concerning the totality of the relationship between the respective parties and then determine the legal character of that relationship before determining any question of inconsistency.  The respondents contend that ‘work’ was undertaken by the respondents pursuant to both the OMB Agreements and the broader arrangements. 

38                  The respondents say that this proceeding is related to the other OMB and Bank proceedings as this proceeding involves a party common to all proceedings (the Bank) and a range of opposing parties all of whom are parties in one or other of related proceedings.  In addition, there are said to be common facts and common issues arising in the various proceedings. 

39                  Some of the proceedings are these. 

40                  Traderight (NSW) Pty Limited (‘Traderight’) (together with a number of individuals) has commenced proceedings in the Equity Division of the Supreme Court of New South Wales claiming relief pursuant to ss 82 and 87 of the TPA; ss 68 and 72 of the FTA (NSW); s 106 of the IR Act; s 12GM of the Australian Securities and Investment Commission Act 2001 (Cth) (‘ASIC Act’); and damages for breach of contract and breach of duty, in relation to an OMB Agreement between the Bank and Traderight to establish an owner managed branch of the Bank in Castlereigh Street, Sydney.  The amended statement of claim (101 pages) sets out a series of meetings between Bank representatives and a number of the plaintiffs, a sequence of contended representations at various times, reliance upon the representations, the falsity of those representations, detriment and consequential loss and a claim for remedial orders.  The pleading contends that particular agreements including the OMB Agreement arising out of the particular events are susceptible of orders declaring the agreements void ab initio (among other orders). 

41                  The proceedings commenced against the Bank by Rossmick 1, Rossmick 2, Bradley, Chapman and Nolan (IRC928/2007), Jude, Gardner and Ms Gardner (IRC972/2007) and SME and McCoy (SIRC961/2007) are the subject of cross‑vesting orders made on 2 November 2007 transferring each of those proceedings to the Supreme Court of New South Wales (subject to compliance with certain conditions of the order). 

42                  A Federal Court proceeding (NSD1564/2007) commenced by Rossmick 1, Rossmick 2, Bradley, Chapman and Nolan against the Bank and Liddy claiming relief based upon ss 82 and 87 of the TPA, ss 68 and 72 of the FTA (NSW), s 12GM of the ASIC Act and relief at common law, is the subject of a cross‑vesting application to transfer the proceeding to the Supreme Court of New South Wales. 

43                  A Federal Court proceeding (NSD1712/2007) commenced by Jude, Gardner and Ms Gardner against the Bank claiming relief formulated in the same terms as NSD1564/2007 is the subject of a cross‑vesting application to transfer the proceeding to the Supreme Court of New South Wales. 

44                  An action commenced by the Bank against Traderight in the Supreme Court of Queensland claiming the recovery of a debt and monies due pursuant to guarantees has been cross‑vested to the Supreme Court of New South Wales.  An action commenced by the Bank against SME in the Supreme Court of Queensland for recovery of debts and monies owing pursuant to guarantees has been cross‑vested to the Supreme Court of New South Wales.  There are also proceedings in the District Court of Queensland at Brisbane commenced by the Bank against Rossmick 2, Bradley, Chapman and Nolan claiming the recovery of debts and monies owing pursuant to guarantees. 

45                  The respondents say that the Bank is a common party to all these proceedings; there are common core documents in the proceeding such as the OMB Agreement; the same authorised officers of the Bank conducted negotiations in connection with the introduction and commencement of each OMB agency by each of the respondents in this proceeding and the OMB agent in the Traderight proceeding; similar facts and issues arise in these proceedings as those arising in the Traderight proceedings concerning the operation of each OMB agency and dealings between the natural person respondents and the Bank; many witnesses called by the OMB respondents in these proceedings will be common to the other proceedings and many of the witnesses to be called in the Traderight proceedings will be called in these proceedings concerning the negotiation and commencement of each agency, the making of representations and compliance with those representations.  The ‘related’ proceeding for the purposes of the Cross‑Vesting Actis said to be the Traderight proceeding. 

46                  The respondents say that the interests of justice are served by transferring this proceeding to the Supreme Court of New South Wales.  That follows because an order for transfer would avoid all parties incurring duplicated costs; the determination of these proceedings in the Federal Court as a separate matter is an inefficient use of resources of the Court and no utility is achieved by hearing the matter; the conduct of the matter will place unnecessary financial burden on the respondents; there is a risk of inconsistent verdicts; difficult questions of issue estoppel will arise; a determination in favour of the applicants in this proceeding, will not dispose of the s 106 proceedings initiated by the respondents against the individuals employed by the Bank nor the proceedings commenced by Traderight against the Bank; the work performed by the OMB respondents was performed in New South Wales; the issues involve s 106 and s 179 of the IR Act, a concern going to the law of New South Wales; there is no legitimate forensic advantage in not transferring the proceeding to the Supreme Court of New South Wales; and, finally, the question of relief based upon s 106 may not arise at all, in any event, due to the claims made by the various respondents under the TPA and FTA (NSW). 

47                  The respondents raise a number of further matters. 

48                  First, the Federal Court has no jurisdiction to hear and determine the Bank’s application as the Industrial Court has ‘both the jurisdiction and power to hear and determine the NSW IRC proceedings at first instance’ or alternatively, the Industrial Court ‘has the jurisdiction and power to determine whether it has the jurisdiction to hear the NSW IRC proceedings in the first instance’.  Secondly, this proceeding is said to have been commenced by the Bank in contravention of s 179 of the IR Act.  Section 179 is a privative clause in these terms:

179      Finality of decisions

(1)        A decision of the Commission (however constituted) is final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal.

(2)        Proceedings of the Commission (however constituted) may not be prevented from being brought, prevented from being continued, terminated or called into question by any court or tribunal.

(3)        This section extends to proceedings brought in a court or tribunal in respect of a decision or proceedings of the Commission on an issue of fact or law.

(4)        This section extends to proceedings brought in a court or tribunal in respect of a purported decision of the Commission on an issue of the jurisdiction of the Commission, but does not extend to any such purported decision of:

            (a)        the Full Bench of the Commission in Court Session, or

(b)        the Commission in Court Session if the Full Bench refuses to give leave to appeal the decision.

(5)        This section extends to proceedings brought in a court or tribunal for any relief or remedy, whether by order in the nature of prohibition, certiorari or mandamus, by injunction or declaration or otherwise.

(6)        This section is subject to the exercise of a right of appeal to a Full Bench of the Commission conferred by this or any other Act or law. 

(7)        In this section: 

            ‘decision’ includes any award or order.

Considerations

49                  Although the question to be determined in this application is whether an order for transfer of this proceeding to the Supreme Court of New South Wales ought to be made, rather than a consideration of the substantive issues in the proceeding itself, it is necessary to form a preliminary view on certain matters in issue in the proceeding also said to be relevant to the transfer question, notably, the jurisdictional issues.  If it is plain that this Court does not have jurisdiction in a ‘matter’, there is little point considering whether the Federal Court of Australia is the proper forum for quelling the specific controversy concerning that matter. 

50                  As to the jurisdictional question, s 39B(1A)(a) of the Judiciary Act confers original jurisdiction on the Federal Court of Australia in any matter arising under the Constitution or involving its interpretation.  Section 39B(1A)(c) confers jurisdiction upon the Court, relevantly for present purposes, in any matter arising under any laws made by the Parliament.  The Bank claims that its ‘rights and entitlements’ as a party to a services contract are not affected by s 106 of the IR Act.  That claim seems to me to be the assertion of a right, or reliance upon an answer to a claim for an order under s 106 of the State Act, conferred by or under the Commonwealth Act.  The claim thus arises under the Commonwealth Statute (Ex parte McLean (1930) 43 CLR 472; The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154 per Latham CJ; The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty Ltd (1953) 88 CLR 100; and Felton v Mulligan & Anor (1971) 124 CLR 367.  The controversy also involves a matter arising under the Constitution. 

51                  Section 179 of the IR Act is a privative provision described by its heading as directed to the ‘finality of decisions’.  Although the section addresses ‘decisions’ and ‘purported decisions’ it also provides that ‘proceedings of the Commission (however constituted) may not be prevented from being continued … or called into question in any court or tribunal’.  The respondents seem to say, in effect, that s 179 of the IR Act either ousts the original jurisdiction of the Federal Court conferred by the Judiciary Act; fetters the exercise of jurisdiction in the making of declarations or orders for prohibition; or informs the exercise of the discretion on transfer. 

52                  Questions of the tension between the conferral of limited jurisdiction upon the Industrial Court and constraints upon supervisory challenges to the exercise of that limited jurisdiction on grounds of jurisdictional error (before the Supreme Court of New South Wales, the Court of Appeal and ultimately appellate challenges before the High Court) and the reconciliation of that tension, have been considered in Fish v Solution 6 Holdings Ltd (2006) 80 ALJR 959 (‘Fish’); Batterham v QSR Limited (2006) 80 ALJR 995 (‘Batterham’) and Old UGC Inc v Industrial Relations Commission of New South Wales in Court Session (2006) 80 ALJR 1018 (‘Old UGC Inc’).  Those cases do not involve a question of construction of an Act of the Commonwealth Parliament or whether the source of a denial of jurisdiction to the State Commission or Court involves invalidity in the provisions of the State Act conferring jurisdiction, by reason of s 109 of the Constitution.  In other words, they do not engage the question of a State Act expressly seeking to limit federal jurisdiction (other than questions going to a possible or purported limitation upon the exercise of appellate jurisdiction by the High Court). 

53                  In Fish and Batterham the majority concluded that s 179 was not enlivened according to its terms as no decision or purported decision had been made by the Commission in Court Session.  In Old UGC Inc, the s 179 point was not argued before the High Court.  These cases are not authority for the proposition that notwithstanding s 179 (enlivened according to its terms), a supervisory court has jurisdiction to grant orders of prohibition directed to the Industrial Court to prevent the threatened making of a decision beyond jurisdiction or the conduct of proceedings that might lead to an order beyond jurisdiction as the point was not alive.  Moreover, these cases do not in terms deal with constraints upon the exercise of federal jurisdiction. 

54                  The applicants in this proceeding seek to give expression to rights arising under Commonwealth law.  A limitation upon those rights is said to arise by reason of s 179, a State law.  Although an argument arises that a State law might, as a matter of construction, be intended by a State parliament to operate in such a way as to foreclose the exercise of jurisdiction by ‘every court in the land’ including a court exercising ‘federal and constitutional jurisdiction’ (Old UGC Inc per Kirby J, [69]), it seems to me, as an aspect of considering an application for transfer, that the proper approach to the application of s 179 of the State Act is that it does not operate to oust or limit the exercise of federal jurisdiction by this Court.  I find it difficult to analytically identify how a provision such as s 179 of the IR Act could deprive the Federal Court of invested federal jurisdiction. 

55                  The further consideration and, it seems to me, the real focus of inquiry, is whether the Federal Court ought to embark upon a consideration of the question raised by these proceedings in circumstances where the Industrial Court has not considered whether it has jurisdiction.  If an assumption is made for present purposes that the Industrial Court might ultimately be found not to have the jurisdiction sought to be exercised, it nevertheless has jurisdiction to determine whether it has jurisdiction.  The Industrial Court is, by s 152 of the IR Act (and by amendment of the Constitution Act 1902 of the State of New South Wales) a superior court of record equivalent in status to the Supreme Court of New South Wales.  An important question, as a matter of comity, is whether this Court ought to hear and determine the controversy framed by these proceedings and, if satisfied that an inconsistency arises depriving the Industrial Court of jurisdiction to make orders pursuant to s 106 of the IR Act, proceed to make orders preventing the further conduct of the Industrial Court proceedings, before the Industrial Court has determined whether it has jurisdiction (Fish per Heydon J [176] and [177]). 

56                  The question raised by this controversy is not simply one of whether there is threatened jurisdictional error in acting in reliance upon s 106 of the IR Act in respect of the proper isolation and application of one or more of the integers of the section itself, but a threshold question of constitutional inconsistency between the Commonwealth and State Acts resulting in invalidity in the provisions sought to be relied upon in the exercise of jurisdiction.  It seems to me that the interests of the parties are served by the Federal Court considering and determining that matter, in the nature of a preliminary question.  Since this proceeding joins parties comprising the Bank, those executives who acted for the Bank in the relevant transactions and all of the participants in the three Industrial Court proceedings, there seems to be utility in deciding the inconsistency question (and thus the validity of s 106 of the IR Act), as between these parties.  In addition, the contention of the respondents that the Industrial Court ought to first determine its own jurisdiction as the repository of the power, needs to be qualified as each of the Industrial Court proceedings has been cross‑vested to the Supreme Court of New South Wales. 

57                  Accordingly, I am not persuaded that an order for transfer ought to be made by reason of a want of jurisdiction in the Federal Court or on the footing that the Court ought not to embark upon a consideration of whether there is a constitutional denial of jurisdiction to the Industrial Court, before the relevant forum first determines whether jurisdiction is denied to it by reason of constitutional invalidity arising out of the contended inconsistency. 

58                  It seems to me that the question of whether this proceeding should be transferred to the Supreme Court of New South Wales turns upon the specific controversy raised by the proceeding, the scope of any potential findings that might be necessary to quell that controversy (and evidence potentially to be called) and whether the interests of justice are served by providing for a speedy resolution of the inconsistency question and thus the constitutional validity of the provisions of the State Act. 

59                  As to those matters, the respondents by their defence rely upon the ‘summonses for relief’ filed in each of the Industrial Court proceedings.  It is important therefore to identify the relief sought in those proceedings. 

60                  Paragraphs 1 and 2 of the Rossmick IRC summons as initially filed claim an order declaring the ‘contracts, arrangements, conditions and collateral agreements between [some or all of the Rossmick applicants and some or all of the Bank respondents] whereby [Rossmick 1, Rossmick 2, Bradley, Chapman or Nolan] performed work in an industry are, or were, or became unfair and/or harsh and/or unconscionable and/or contrary to public interest or operated in such a manner’; and an order pursuant to s 107 prohibiting the Bank parties from ‘entering into, or doing any other act which may reasonably be construed as being intended to induce other persons to enter into, an OMB Agency agreement or a Representations Deed on terms similar to those contained in the OMB Agency agreements and the Representations Deeds the subject of these proceedings’.  Paragraph 246 of the Rossmick summons sets out a list of ‘contracts, arrangements, related conditions and/or collateral arrangements’ said to be unfair contracts under s 105 of the IR Act.  Paragraphs 246(a) to (n) set out all of what might be regarded as the formal agreements in respect of the Bank branches in issue in that matter.  Paragraph 246(o), (p) and (q) set out the ‘Viable Business Representations’ and particular ‘Meeting Representations’ said to have been made by Allsop, Quinn and Liddy leading to what are described as the ‘arrangements’ or ‘collateral arrangements’.  Paragraph 246(r) sets out the subject matter which is said to constitute the arrangements or collateral arrangements of which there are 10 different categories of subject matter. 

61                  Apart from the claim for a declaration as described, the specific orders sought by the applicants pursuant to s 106 of the IR Act in the Rossmick proceedings (IRC928/2007) as filed, in relation to the ‘Maroubra Junction Branch’, are these:

(a)        an order declaring the ‘OMB Agency Agreement’ void ab initio save in regard to the provisions as to payment to Rossmick 1;

(b)        an order declaring all guarantees and securities given by Rossmick 1 in support of the OMB Agency Agreement by the relevant respondents, void ab initio;

(c)        an order declaring the ‘Representations Deed’ between the Bank and Rossmick 1, void ab initio;

(d)        an order declaring the Business Term Loan Agreement between the Bank and Rossmick 1 void ab initio;

(e)        an order declaring all guarantees and securities given by Rossmick 1, Bradley and Chapman to the Bank in support of the Business Term Loan Agreement, void ab initio;

(f)         an order requiring the Bank to execute all such documents required to effect a discharge of all guarantees and securities given in support of the OMB Agency Agreement;

(g)        an order requiring the Bank to execute all such documents required to effect a discharge of all guarantees and securities given in support of the Business Term Loan Agreement;

(h)        in the alternative to (a) and (b), an order is sought with respect to the OMB Agency Agreement for the payment of money to Rossmick 1, Rossmick 2, Bradley and Chapman sufficient to ‘discharge all liabilities and guaranteed liabilities’, or alternatively, an order that an indemnity be given by the Bank in favour of those parties in relation to all such liabilities;

(i)         in the alternative to (d) and (e), money orders are sought in relation to the Business Term Loan Agreement;

(j)         orders are sought for the payment to Rossmick 1, Bradley and Chapman of monies paid, costs incurred and liabilities assumed by reason of entering into the OMB Agency Agreement, the performance of the OMB Agency Agreement, the termination of the OMB Agency Agreement, the enforcement of any rights under the OMB Agency Agreement; and any consequential actions that resulted from the OMB Agency Agreement;

(k)        an order for the payment of money to Rossmick 1, Bradley and Chapman as fair recompense for work and services provided in connection with the establishment, operation and termination of the OMB Agency Agreement;

(l)         an order for payment of compensation for lost opportunity in connection with the OMB Agency Agreement;

(m)       an order for indemnity against any damages or other liabilities incurred by Rossmick 1, Bradley and Chapman imposed by any court in relation to the ‘Representations Deed’;

(n)        an order that the Bank remove at its cost all fixtures and fittings from the relevant premises;

(o)        an order that the Bank pay Rossmick 1 the purchase price or cost of building work, fixtures and fittings unable to be removed by Rossmick 1;

(p)        in the alternative to (n) and (o), the Bank pay Rossmick 1 the purchase price or cost of all building work, fixtures, fittings etc purchased by Rossmick 1;

(q)        an order that the Bank, Liddy, Quinn and Allsop pay the relevant monies contemplated by the orders in such proportion as is determined just in the circumstances. 

62                  The orders sought by the Rossmick parties in the Industrial Court proceedings in relation to the Hurstville Branch, are formulated in virtually identical terms.  It can be seen immediately that although a declaration is sought that particular agreements (including the formal agreements) and arrangements said to have been reached or made, are unfair or became unfair, none of the orders sought by the applicants in those proceedings concern relief pursuant to s 106 in relation to any of the broader arrangements contended for by the respondents in the IRC proceeding.  The relief sought is confined to the OMB Agency Agreement, other specific agreements related to that agreement or money claims to compensate the relevant respondents for losses referable to the specific agreements (or orders to secure a discharge of liabilities under the nominated agreements).  The Summons for Relief in the Rossmick Industrial Court proceeding sets out in detail the facts relied upon by those applicants to support the declaration and the specific orders sought under s 106.  By way of introduction to the particular pleaded facts concerning the Maroubra Junction OMB agency and then the Hurstville OMB agency, the applicants contend that:

14.       Bradley, Chapman and Nolan intended to perform work in the Financial Services industry, and in particular by establishing and operating an OMB of the Bank of Queensland, through the establishment of Rossmick 1 and Rossmick 2 and their associated entities. 

…

27.       An OMB franchise or agency is established and governed by an OMB Agency Agreement which provides for the following:

(a)        the franchisee or agent carries on the business of the OMB on its own account;

(b)        the agent is required to administer applications by members of the public for financial services and banking products provided by the Bank;

(c)        the agent is prohibited from conducting any business whatsoever other than business approved and authorised by the Bank;

(d)        the agent receives fees or commissions from the Bank for any financial services or banking products provided to members of the public calculated by reference to the amount of the financial service or the type of banking product;

(e)        the agent is required to adopt the business methods and practices of the Bank;

(f)        the principal(s) of the agent are required to comply with training requirements in respect of banking and finance matters, stipulated by the Bank;

(g)        the agent is required to employ a Branch Manager approved by the Bank;

(h)        the agent must be a corporate entity approved by the Bank; and

(i)         the agent is required to indemnify the Bank in respect of any damage or loss suffered by the Bank arising out of any act or omission on the part of the agent.

…

30.       By reason of the provisions contained within it, the Bank’s OMB Agency Agreement is, at all material times, an agreement pursuant to which work is done in the banking and/or financial services industry.

31.       The said work is done in respect of:

(a)        participation by the principals and employees of the agent in education, training and examination as required by the Bank as well as obtaining accreditation pursuant to the provisions of the Financial Services Reform Act 2001 (Cth);

(b)        the location by the principals of the agent of suitable premises acceptable to the Bank from which to operate the OMB;

(c)        the fitting out of the located premises by principals of the agent as a Bank branch to a standard approved by the Bank;

(d)        the principals and employees of the agent undertaking the supervision of and conducting the business of soliciting and procuring applications for financial services from members of the public;

(e)        the principals and employees of the agent processing, assessing and submitting any application for financial services to the Bank; and

(f)        the principals and employees of the agent managing the customer relationship thereafter.

                                                                                    [emphasis added]

63                  The Summons for Relief in the Rossmick proceedings sets out (pp 14‑64) a series of representations said to have been made by the Bank to the Rossmick parties.  The pleading asserts a sequence of facts in considerable detail relating to a range of meetings at which representations are said to have been made.  The representations include the first, second, third meeting representations; Maroubra approval letter representation; Maroubra credit criteria representations; fourth, fifth, sixth and seventh meeting representations; the Hurstville credit criteria representation; the first public representations; second public representations; eighth meeting representations; credit analysis representations; Hurstville pre‑opening representations; second misrepresentations; third public representations; ninth meeting representations; fourth public representations; fifth public representations; general comments and representations; third further representations; statements in relation to termination issues; and contentions in relation to various letters. 

64                  References to all of these matters are brought to a head by the contention at para 246 that the identified contracts, arrangements, related conditions and/or collateral arrangements are unfair contracts under s 105 of the IR Act.  By para 247, the ‘contracts and arrangements’ are said to be ‘unfair contracts’.  They are said to be unfair ‘based upon’ 16 categories of conduct which include some of the meeting representations, consideration of ‘documentation’, ‘letters’, ‘termination letters’, ‘default letters’ and particular ‘issues’ as defined by the pleading including the ‘Agency Agreement Issues’. 

65                  The ultimate case (in terms of the orders sought) put by the Rossmick parties is that the OMB Agency Agreements (and the specific agreements related to the OMB Agency Agreements) ought to be declared void on the footing that those contracts are or became unfair by reason of the conduct of the Bank parties.  The arrangements and events set out at length in the Summons are relied upon to establish the unfairness ground (referred to in the declaration as to unfairness embracing the OMB Agency Agreements as well as other contended arrangements and agreements) which anchors the right to relief sought under s 106 (relief is also sought pursuant to s 107 to prevent the Bank parties engaging in conduct to induce others to enter into OMB agency agreements).  However, the relief sought rests upon relief in relation to the OMB Agency Agreement and the specific related agreements (the guarantees and securities, the Representation Deed, the Business Term Loan Agreement and guarantees and indemnities related to that agreement), not the broader arrangements.  The Jude and SME Industrial Court proceedings follow precisely the same pattern.  In that sense, it is fair to say that the Rossmick proceedings are emblematic of the approach adopted by the applicants in the IRC proceedings. 

66                  The Bank in this proceeding seeks orders in relation to the OMB Agreement only. 

67                  The Bank says that whatever jurisdiction the Industrial Court may have under s 106 more broadly (leaving aside the ‘covering the field’ contention), the Commonwealth Act deprives the Industrial Court of jurisdiction to make orders concerning this contract for services as one made by an independent contractor under which work is done by the OMB parties.  The Bank parties say that orthodoxy requires the Court to look to the OMB Agreement and construe the terms of that agreement to determine whether its true character is one of a contract for services and one to which an independent contractor is a party.  The respondents also rely extensively (pp 15‑36 of the defence) on many of the terms of the OMB Agreement in answering that question and the s 106 relief relates to the OMB Agreement (and dependent specific agreements).  The construction to be given to the OMB Agreement will also reveal whether the contract relates to the performance of ‘work’ by an independent contractor although the respondents plead in the Industrial Court proceedings that the OMB Agreement is one whereby work is performed in an industry.  The respondents say, however, that work is also undertaken pursuant to the broader arrangements and that these arrangements (as previously described and reflected in the various pleadings), are relevant to the question of whether there is a contract ‘for services’ and engagement by the relevant entity as an ‘independent contractor’.  Although the respondents characterise these questions as the resolution of factual matters, the applicants say that the integers upon which the Commonwealth Act operates are to be determined as a matter of construction which does not require the Court to resolve a factual controversy. 

68                  Although the broader arrangements contended for by the respondents are said to be relevant to establishing an unfairness ground for the purposes of s 106 in the Industrial Court proceedings, once it is accepted that the OMB Agreement is a contract and work was done in the banking and financial services industry under it, the question of whether it is a contract for services to which an independent contractor is a party is fundamentally a question of construction of the agreement. 

69                  The respondents say that what is necessary is an analysis of the ‘totality of the relationship’ between the parties to determine whether the contract is one to which an independent contractor is a party.  That proposition is based upon Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 and the judgment of their Honours Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ in Hollis v Vabu Pty Ltd (2001) 181 ALR 263 and particularly the observations at [24].  However, Hollis involved a question of whether a bicycle courier being one of about 25 to 30 individuals within the bicycle courier cohort providing courier services for and on behalf of Vabu,might properly be characterised as an employee or an independent contractor of Vabu for the purposes of determining whether Vabu was vicariously liable for the negligence of one of its couriers.  In determining that question, the Court recognised that each bicycle courier was required to sign a three page document comprising on page 1 a pro forma layout for recording the personal details of the courier; a second page setting out an inventory sheet of radio equipment and uniforms and a third page which set out 11 points comprising terms.  The content of the arrangements between Vabu and each of its bicycle couriers comprised not only the pro forma three page document but other important matters not forming part of the document such as the rate of remuneration for deliveries and other elements of work practices for bicycle couriers, adopted by Vabu.  The arrangements were found to comprise both the written document and other terms not reduced to writing.  The circumstances of the present case could not be further removed from the circumstances of Hollis.  This case does not involve episodic arrangements for the provision of routine unskilled services.  In this case, there is a significant detailed major commercial document which the respondents plead in their Industrial Court proceedings is one that provides for the establishment and governance of the OMB Agency.  It is an agreement establishing and governing a significant commercial undertaking as between the parties to it and one which involves specific collateral documents such as the guarantees and securities given in support of it, a Representations Deed, a Business Term Loan Agreement and guarantees and securities given in support of that agreement. 

70                  The Bank parties concede for the purposes of this proceeding that the facts and contentions pleaded in the defence by the respondents ought to be ‘taken at their highest’ and accepted for the purposes of determining the matters in issue in this proceeding.  It seems to me that the Court will not be required to engage in a broadly‑based wide‑ranging forensic inquiry into the factual matters contended for by the OMB parties in order to dispositively resolve the question raised by this controversy.  It will be necessary to determine the documents that ought to be before the Court.  They will include the OMB Agreement, documents referred to in the OMB Agreement, Bank manuals, the pleadings in each of the Industrial Court proceedings (of which there are three of relevance to this proceeding) and documents which the parties might agree are relevant to the issues. 

71                  It follows that this proceeding is capable of disposition of the question of whether the OMB Agency Agreements fall within s 7(1)(c) and s 5(1) of the Commonwealth Act without engaging the factual inquiry or investigation contemplated by proceedings such as the Traderight proceedings and other Federal Court proceedings which rely upon causes of action and remedial orders derived from the TPA, the FTA (NSW), the ASIC Act and common law causes of action or the factual controversy raised by the Industrial Court proceedings in which it is necessary to determine whether the unfairness ground is made out. 

72                  Notwithstanding that conclusion, there might nevertheless be good reasons why this proceeding ought to be transferred to the Supreme Court of New South Wales.  Those reasons are presumably predicated upon an assumption that all proceedings which raise the factual controversy identified by the OMB parties will be heard and determined together and this proceeding, if transferred to that Court, could conveniently be heard and determined with those proceedings. 

73                  The respondents have identified a number of matters which suggest that the interests of justice are served by making a cross‑vesting order [45].  As to those matters, it seems to me that there is not likely to be significant duplicated costs as the scope of the controversy in this proceeding is in truth quite limited, turns upon a construction of documents and legislation and involves an acceptance of the facts pleaded by the respondents in their defence assessed against the background of the pleadings in the Industrial Court proceedings incorporated by reference.  No doubt the costs associated with assembling the relevant documents and preparing material for this application will not be lost and will prove to be costs applied in dealing with the issues raised by this proceeding.  A body of material has already been prepared and filed in connection with these applications and a proportion of that material might be utilised in the conduct of the matter.  Obviously enough, I accept that costs will be incurred in conducting and hearing the proceeding.  However, the question raised by this proceeding must in any event be addressed by the parties and costs will necessarily be incurred in doing so.  The prospect of additional costs beyond those which would otherwise have been incurred needs to be considered against the background of costs which might be saved in connection with a number of other proceedings, by dealing with the inconsistency question.  Although a determination of the inconsistency question in this proceeding as framed will not determine that matter, if it be alive, in any other proceeding involving other parties (and some of these parties), a determination of the construction questions and the scope and operation of the relevant provisions of the Commonwealth Act and the State Act is likely to assist the parties in a broader and useful way.  Moreover, prima facie, the applicants in the proceeding are entitled to bring a controversy to the Court for resolution and engage the jurisdiction of the Court on the question they seek to resolve.  An applicant ought not to be sent away or deprived of the Court’s exercise of jurisdiction on the question framed unless the interests of justice require such a step. 

74                  It is true that other proceedings will require a forensic examination of the relationship between the parties with a view to determining the content of representations alleged to have been made by the Bank parties, reliance upon those representations by the respondents, the accuracy of statements made and the basis for them and the consequences of reliance.  Those matters will require detailed findings of fact.  Those issues are not alive in this proceeding. 

The further material filed in support of the cross-vesting application

75                  On 30 January 2008, the OMB parties filed amended summonses for relief under ss 106 and 107 of the IR Act in each of the Industrial Court proceedings commenced by the Rossmick parties, the Jude parties and the SME parties.  The OMB parties accept that the Rossmick Industrial Court proceedings are emblematic of the changes made in each of the other Industrial Court proceedings.  Certain formal amendments have also been made in each proceeding to join additional parties.  In the Rossmick proceedings additional entities involved in owning and operating one of the OMB branches have been joined as applicants (Tomala No. 1 Pty Ltd, Casmick Pty Ltd and Nolan No. 1 Pty Ltd).  In the Jude proceedings, Liddy, Allsop and Quinn have been joined as respondents.  In the SME proceedings, Liddy and Allsop have been joined as respondents.  The primary amendments to each of the IRC proceedings concern an amendment to claim one in relation to the declaration; amendments to the orders sought pursuant to s 106 of the IR Act; and amendments to the pleading of facts and matters of law to set out pre and post contractual representations made by Liddy, Quinn and Allsop on behalf of the Bank and on their own behalf to Bradley, Chapman and Nolan in their pleaded capacities on behalf of the Rossmick entities, the new joined entities and their own capacity. 

76                  The central thrust of these amendments is to broaden the claim for a declaration that the contracts and arrangements previously described at para 246 of the old pleading and now para 254 of the new pleading are contracts and arrangements made between the relevant participants that were or became unfair and, more particularly, to seek specific orders pursuant to s 106 which go beyond the earlier claims for orders confined to the OMB Agency Agreement and the other formal agreements related to those agreements. 

77                  The chronology of events leading to the introduction of fresh evidence (with the consent of the Bank parties) is this.  The application was heard on 11 December 2007 and reserved.  An assessment of the affidavits, the submissions and the authorities was undertaken in January with a view to pronouncing judgment in February.  On 6 February 2008, the OMB parties sought to re‑list the matter in support of an application to re‑open the hearing of the motion and adduce the additional evidence.  Counsels’ availability was discussed with the parties and directions orders were made for the filing and exchange of material in support of the further application with the matter being listed for argument on 7 March 2008.  The contention advanced by the Bank parties in argument on the motion on 11 December 2007 was directed, in large part, to the limited nature of the controversy in the present proceeding; the contention that as a result the question to be determined was one of construction; that question did not raise a controversy of fact; and, in any event, the scope of the orders sought in reliance upon s 106 of the IR Act was confined to the OMB Agency Agreements and related agreements (see [60]).  The amended summons and pleading in each of the IRC proceedings was filed with leave on 30 January 2008. 

78                  By para 3(f) of the amended IRC proceedings in the Rossmick matter, the OMB parties seek an order under s 106 in relation to the Maroubra OMB declaring the contracts and arrangements (excluding the formal agreements dealt with in other claims for relief under s 106) to be void ab initio on the ground that the contract and arrangements are unfair contracts under s 105 of the IR Act.  The contracts and arrangements as defined include all of the formal agreements and arrangements or collateral arrangements made as a result of representations made by Allsop, Quinn and Liddy and other collateral arrangements made by the Bank.  These ‘contracts and arrangements’ are said to be unfair having regard to misrepresentations, meeting representations, various letters, conversations and conduct on the part of the Bank parties.  Similar relief is sought by para 4(h) in relation to the Hurstville OMB. 

79                  By paras 18‑21, it is said that pre and post representations were made by Bank officers to Bradley, Chapman and Nolan; the representations were made in written agreements, representations, warranties and arrangements (including the OMB agency agreements) as well as in unwritten agreements and representations; the representations were made to the individuals and the relevant entities with the intention of inducing the entities and individuals to perform work, establish an OMB franchise, incorporate relevant entities and execute the OMB agency agreements and guarantees.  By paras 27‑32, the Rossmick parties plead that Liddy, Quinn and Allsop made representations to the individuals and entities for the purpose of inducing the applicants to perform work in an industry, invest funds, establish and operate an OMB branch.  The OMB parties say that the point of these amendments is to ‘make perfectly clear’ that what is being asserted is arrangements that include arrangements between individuals as applicants and individuals as respondents in addition to issues between the OMB corporate entities and the Bank. 

80                  Counsel for the OMB parties contends that the amendments have been made as a matter of ‘abundant caution in relation to the proposition that was being articulated … earlier that what is being sought to be picked up is arrangements that travel outside or beyond, so to speak, the dealings between any two corporations or a constitutional corporation and any individual [so as] to catch arrangements where on both sides [there] are individuals, and also then deal with the collateral arrangements to those arrangements in the same way’.  The amendments are said to demonstrate that the scope of the relief attracts the operation of the Act in respect of matters beyond the OMB agreements and related the formal agreements.

81                  The OMB parties say that Liddy and Allsop were joined to enable the pleading of a case against them individually in relation to matters occurring before the making of the formal OMB agreements and in relation to post OMB agreement representations going to a claim of inducement so as to, in effect, plead a ‘parallel case’ against the individuals.  A similar approach has been taken in relation to Quinn.  Because the corporate OMB parties were not incorporated until after particular representations were made to the individuals, claims reliant upon those representations are pleaded against the individuals personally.  The OMB agreements, it is said, became, in effect, the vehicle for giving effect to the anterior arrangements.  Alternatively, collateral arrangements to the OMB agreements have been reached which are said, in some senses, to ‘stand alone’.  Ultimately, the submission of the OMB parties is that the pleadings now put on matters that ‘simply [reflect] the fact that ‘one could approach the characterisation of the inter‑relationships of these various dealings in quite different ways for s 106 type purposes and that’s what we do’. 

82                  The Bank parties contend that nothing material to the issues to be determined in this proceeding has changed by reason of the amendments to the Industrial Court proceedings.  They say the OMB parties continue to say two things.  Firstly, the totality of the relationship is relevant to the issues in this proceeding and the factual inquiry concerning that relationship will be investigated in other proceedings.  Therefore, this controversy should be cross‑vested to the forum where the other matters will be decided.  Secondly, residual issues remain to be determined in the Industrial Court proceedings between individuals even if the Commonwealth Act deprives the Industrial Court of jurisdiction to make orders affecting the rights, entitlements, obligations or liabilities of the Bank.  The Bank parties say that now the OMB parties seek to set up ‘parallel arrangements’ (that is, parallel to the OMB agency agreements) between particular individuals on each side of the Industrial Court proceedings and orders are sought under s 106 concerning broader arrangements.  The new amendments are said by the Bank parties to be an attempt to broaden the scope of the orders founded upon a reformulation of representations made by Bank individuals to other individuals among the OMB parties.  Thus, the field of investigation required to resolve this matter is said to be much broader and the range of residual arrangements between individuals is said to be more extensive.  Therefore, it is said to follow that the broader investigation of the relationship should more clearly be dealt with elsewhere and further, there is no utility in deciding the inconsistency question in this proceeding as, more clearly now, it will not resolve the ‘residual’ issues between the individuals or the ‘parallel arrangements’. 

83                  It seems to me that the question of whether Liddy, Quinn or Allsop made representations to any or all of the OMB parties before, after or during the commencement of the OMB agency agreements or whether a wide range of statements and representations by Bank officials to the OMB parties (corporate or individual), oral or written, were made which may have been relied upon giving rise to reliance detriments in some or all of the OMB parties, does not elevate that controversy (irrespective of how broad or narrow it may be) and the character of those representations, agreements or arrangements, to matters relevant to the construction of the OMB agency agreements, that is, whether each OMB agency agreement is a contract; a contract for services; a contract to which an independent contractor is a party; and one that relates to the performance of work by the independent contractor. 

84                  The resolution of those questions in this proceeding may leave extant the determination in the Industrial Court proceedings of a contention that apart from the OMB agency agreements made with the Bank, Liddy, Quinn and Allsop as individuals together with the individual respondents made arrangements or other agreements (parallel agreements) for the performance of work in an industry.  At the heart of that matter is an analysis of the representations said to have been made and whether those matters go beyond representations so as to constitute an agreement for the performance of work in an industry for the purposes of s 106 of the IR Act.  Whatever representations may have been made by any person acting on behalf of the Bank (or, alternatively or as well as, on their own behalf in any particular context); or whatever arrangements or agreements may have been reached with one or more of the OMB parties, a central element of those arrangements is, on the case pleaded by the OMB parties, the OMB Agency Agreement (and the related guarantees and securities, the Representation Deed, the Business Term Loan Agreements and the guarantees and securities related to that document).  It seems to me that the Bank parties are entitled to have this Court determine whether the OMB Agency Agreement falls within the scope of the Commonwealth Act and whether an inconsistency with the State Act arises.  Those agreements remain central to the arrangements whatever those arrangements may be found to comprise, including parallel agreements.  Those arrangements are truly derivative to the primary OMB agency agreements and the formal agreements such as the guarantees, securities and other documents related to those agreements. 

85                  One further matter should be mentioned. 

86                  The Bank parties say that the amendments made on 30 January 2008 to each of the Industrial Court proceedings by leave is an attempt to broaden the scope of the orders sought under s 106 of the IR Act and the field of arrangements and agreements made between individuals so as to advance the case for a cross‑vesting order.  Although I accept that the OMB parties have sought to identify the full field of possible representations, arrangements, collateral agreements and other conduct which might give rise to a ground of unfairness and a basis for orders under s 106 in respect of any relevant agreement for the performance of work thus attracting jurisdiction under s 106, it remains the case that these changes have, it seems to me, squarely arisen out of perceived difficulties with the way in which the proceedings were previously formulated and, in particular, in relation to the orders sought under s 106 of the IR Act, in the context of the perceived implications for a cross‑vesting application of these difficulties.

87                  For all the reasons indicated, it seems to me that the appropriate order is to dismiss the application for cross‑vesting. 

88                  Accordingly, I propose to dismiss the motion filed by the respondents seeking an order that the proceeding be cross‑vested to the Supreme Court of New South Wales.  I will reserve the question of costs of the motion for further consideration in the light of submissions as to costs.  I propose to list the matter for directions.  By way of assistance to the parties, the Court is in a position to make dates available on 7, 8, 9 and 10 April 2008 or 28, 29 and 30 April 2008.  There is no reason why judgment could not be pronounced and reasons published within four weeks of the conclusion of argument.

The notice of motion issued by the Bank parties to strike out paragraphs of the defence of the OMB parties

89                  The applicants in the proceeding seek an order pursuant to order 11, rule 16 of the Federal Court Rules that paras 58 to 63, 66, 67 and 80‑95 of the defence of the respondents be struck out on the footing that each of the paragraphs ‘fall into the categories set out in order 11, rule 16’.  Those categories address a pleading that, relevantly for present purposes:

(a)        discloses no reasonable defence appropriate to the nature of a pleading;

(b)        has a tendency to cause prejudice, embarrassment or delay in the proceeding; or

(c)        is otherwise an abuse of the process of the Court.

90                  The Court may at any stage of the proceeding strike out the whole or any part of such a pleading.  The following principles guide the exercise of the discretion and seem to me to be largely uncontroversial.  The Court should err on the side of caution before striking out parts of a defence upon which the respondents seek to rely in answering the claim of the applicants; it should be clear that the facts pleaded, accepting those facts to be established, do not give rise to a defence to the applicants’ claim or, alternatively, the remedial orders sought by the applicants; the notion that the defence contended for by the relevant paragraphs (or to which they go) is weak, or unlikely to succeed, does not justify striking out the paragraphs under challenge; the question to be answered is whether the pleading properly frames, by pleading material facts (and where appropriate conclusions of law derived from those facts) matters which go to both establishing a defence (or an integer in a defence) and enabling the reception of relevant evidence; although the role of the pleading is to frame the controversy by setting out facts going to a defence or an integer in a defence, the question is whether the paragraphs under challenge provide a proper basis to enable the respondents to adduce evidence probative of facts in support of the defence; the pleading must nevertheless state with clarity the case to be put and must frame that case with reasonable particularity; the facts ought not to be pleaded at a high level of abstraction on the footing that a party might make good a proper pleading of material facts at some later time; a pleading that is confusing, internally inconsistent or contains argumentative assertions rather than material facts leading to conclusions of law properly framing the controversy, is embarrassing; pleading facts, or facts and conclusionary assertions, that raise or go to a defence that can not succeed as an answer to the applicants’ claims is both embarrassing and an abuse. 

91                  I do not propose to record in these reasons each of the paragraphs of the defence under challenge.  I simply propose to address the merits of whether the paragraphs ought to be struck out within the scope of order 11, rule16. 

92                  Paragraphs 58 to 63, 66 and 67 fall within that part of the defence which bears the hearing, ‘OMB Agents are not Independent Contractors or Parties to a Contract for Services’.  The paragraphs in that section of the pleading (paras 54 – 67) reflect a series of assertions which are presumably intended to be the content of the conclusion recited in the heading.  Paragraph 56 commences with the phrase ‘By reason of the terms of the OMB Agreements’, and then a certain conclusion follows.  That format is reflected, in effect, in paras 58 and 59.  Paragraph 58 commences, ‘In fact, on their proper construction, the OMB Agreements in NSW, and the collateral agreements as to funding by the Bank of the Agents’ fitout costs by way of secured loan to the Agents’ and then a conclusion follows which is that these agreements provided the mechanism by which the Bank secured access to risk free capital from the agents and their financial backers to construct the fitout of the whole of the Bank’s branch operations in New South Wales.  The relevant fact is that the Bank and particular respondents entered into particular OMB agreements and collateral secured loan agreements which contained particular terms.  Those agreements must be given a construction.  Paragraph 58 pleads a contended construction.  The agreements either bear that construction or not.  The respondents remain in a position to make any submission as to the proper construction to be given to the OMB agreements or the collateral funding agreements (if relevant), they may wish to make based upon the reception into evidence of the documents containing the terms which give rise to the contended construction.  As it stands, para 58 is simply a statement of the construction to be given to the particular agreements as an expression of the conclusion that by reason of that construction, the OMB agents are not independent contractors. 

93                  The paragraph ought to be struck out. 

94                  Paragraph 59 commences with precisely the same introduction as para 58 and goes on to conclude, as a matter of construction, that the agreements are agreements by which the Bank obtained access to the capital of the agents and their financial backers so as to operate branches in New South Wales in order to determine whether one or more such branches could be operated to earn revenue in excess of costs.  This paragraph is also simply a statement of the construction to be given to the particular agreements as an expression of the conclusion that by reason of that construction, the OMB agents are not independent contractors. 

95                  The paragraph ought to be struck out.

96                  Paragraphs 60 to 63 address these matters. 

97                  Before and during the making of the OMB Agreements, the Bank solely determined the practices, proposed practices and financial products to be offered in the financial services market (para 60).  Before the making of the OMB Agreements, the Bank was solely in possession of information as to its then practices, proposed practices and proposed financial products (para 61).  By reason of these matters, ‘the very existence of the proposed business of being an OMB Agent under an OMB Agreement was a matter wholly known to and determined by the Bank and was incapable of being known by a prospective OMB Agent before commencing business’ (para 62).  After the making of the OMB Agreements, the Bank misled OMB Agents as to their relative performance so as to encourage them to borrow further secured funds or invest additional capital (para 63). 

98                  To the extent that these paragraphs deal with conduct of the Bank prior to making the agreement (such as its capacity to select and determine appropriate banking practices and financial products), the facts pleaded are not relevant to the construction of the agreement.  To the extent that these paragraphs deal with the conduct of the Bank after the striking of the OMB Agreements, the facts pleaded are presumably intended to be a statement of the powers or rights conferred upon the Bank under the agreements.  Paragraph 63 addresses aspects of misleading conduct.  It seems to me that these paragraphs ought to be struck out on the footing that the pre‑agreement position is not relevant to the construction of the agreement and the post‑agreement period falls to be determined by the agreement itself.  Paragraph 63 is not relevant to any aspect of the claims made by the applicant. 

99                  Paragraph 66 contends that, ‘By reason of the terms of the OMB Agreements, the OMB Agent was constituted an insurer of the performance of the debt portfolio of the Bank written by the agency of the Agent’.  This paragraph is a statement of the meaning to be attributed to the construction of the agreement and ought to be struck out. 

100               Paragraph 67 asserts that pursuant to the ‘Arrangements’ and the ‘OMB Agreements’ and in order to be ‘granted the privilege of operating an OMB Agency Franchise’ each OMB Agent was constrained in particular ways; worked inherently as part of the Bank’s business and not as an independent business operator; was required to pay a fee; was required to work in the best interests of the Bank; did not have a high level of discretion; was constrained from providing like services to any other party; worked hours set by the Bank; and was required to work from the leased premises.  All of these matters are described as the ‘OMB Agency Requirements’.  These matters are said to be relevant to and are pleaded as an expression of the conclusion, recited as a heading, that each OMB Agent is not an independent contractor.  These matters are said to derive from the pleaded ‘Arrangements’ and the ‘OMB Agreements’.  To the extent that they derive from the OMB Agreements, the contentions are simply a statement of the construction to be given to the rights, entitlements, obligations and duties of the parties by reason of the OMB Agreements.  Those Agreements speak for themselves.  To the extent that these matters derive from the broader arrangements, no relief is sought by the applicant in respect of those matters. 

101               Paragraphs 80 to 95 deal with two topics.  The first is aspects of s 179 of the IR Act and the second deals with the Traderight proceedings, other Court proceedings and a statement of the matters this Court will be required to address in resolving this proceeding. 

102               As to s 179, the respondents say that this proceeding is one in which the applicants seek to prevent the Industrial Court from continuing with a proceeding before that Court, by order of prohibition and that application falls within the scope of s 179 (para 80).  Because the Industrial Court is a Superior Court of Record empowered to determine any question of interpretation of ‘any relevant law’ (paras 81, 82 and 83), the orders sought by the applicants in this proceeding ‘may not or in the alternative, ought not to be granted’.  It is difficult to identify the basis upon which a privative clause contained within a State Act can deny a court invested with federal jurisdiction, the exercise of that jurisdiction.  If what is being put by those paragraphs is the notion that in weighing the factors to be considered in determining whether an order ought to be made in the exercise of jurisdiction, no order for a constitutional writ ought to be directed to the Industrial Court as a matter of comity unless and until the Industrial Court has determined whether it has jurisdiction, the paragraphs raise a proper matter for consideration.  If the paragraphs assert a denial of jurisdiction, that contention is much more problematic.  The paragraphs ought to remain on the footing of discretionary considerations going to comity. 

103               Paragraphs 85 to 92 set out elements of the Traderight proceedings and other proceedings in the Supreme Court of New South Wales and other forums.  Paragraph 93 asserts that there are common issues in all of the proceedings with issues in this proceeding.  These matters are relevant to the question of whether an order ought to be made for cross‑vesting this proceeding to another forum but they are entirely irrelevant to the question the Bank seeks to litigate in the proceeding namely whether there is an invalidity in s 106 of the State Act by reason of inconsistency with the provision of the Commonwealth Act.  None of the matters pleaded at paras 85 to 93 go to the questions raised by this proceeding.  Those paragraphs ought to be struck out.  Paragraph 94 similarly addresses matters which plead the contended merits for cross‑vesting this proceeding to another forum.  Those contentions are irrelevant to the issue raised by the proceeding itself and ought to be struck out. 

104               Paragraph 95 asserts matters which go to whether the Federal Court has jurisdiction to hear the application; the jurisdiction and power of the Industrial Court to determine whether it has jurisdiction and the application of s 179.  Paragraph 95 also asserts that the contentions made by the applicants in this proceeding ought to be made as matters of defence in the Industrial Court proceedings and that the determination of the controversy in this proceeding requires a trial of facts extending to the totality of the working relationship.  Paragraph 95 represents a conclusionary statement of the position adopted by the respondents.  I do not propose to strike out para 95. 

105               Accordingly, in relation to the notice of motion filed by the Bank parties seeking the striking out of the nominated paragraphs, I will order that the following paragraphs of the defence of the respondents be struck out, namely, paras 58, 59, 60‑63, 66, 67 and 85‑94 and reserve the costs. 

Associate:

Dated:         12 March 2008