GLEESON CJ, GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJ
NICHOLAS TERRENCE FISH & ANOR APPELLANTS
AND
SOLUTION 6 HOLDINGS LIMITED & ORS RESPONDENTS
Fish v Solution 6 Holdings Limited [2006] HCA 22 18 May 2006 S206/2005
ORDER
Appeal dismissed with costs.
On appeal from the Supreme Court of New South Wales
Representation:
D F Jackson QC with S J Burchett for the appellants (instructed by Clayton Utz)
B W Walker SC with B J A Shields for the first to fourth respondents (instructed by Deacons)
Submitting appearance for the fifth respondent
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Fish v Solution 6 Holdings Limited
Industrial law (NSW) – Industrial Relations Commission – Jurisdiction – Power given to the Commission by s 106(1) of the Industrial Relations Act1996 (NSW) to declare wholly or partly void, or to vary, any contract whereby a person performs work in any industry if the contract is an unfair contract – Share purchase agreement which stipulated that the first appellant's entering an employment contract with a related company of the purchaser was a condition precedent to completion of the share purchase – Application to Commission for orders declaring share purchase agreement unfair, harsh and unconscionable, and contrary to the public interest, and orders varying the agreement – Whether the share purchase agreement was a "contract whereby a person performs work in any industry" – Whether share purchase agreement formed part of the arrangement between the parties – Relevance of changing nature of employment relationships – Relevance of availability of other remedies.
Industrial law (NSW) – Industrial Relations Commission – Writ of prohibition sought to restrain the Commission from exercising jurisdiction – Entitlement of the Commission to determine its own jurisdiction in first instance – Absence of objection to jurisdiction raised before Commission – Whether trial held by Commission in Court Session.
Prerogative writs – Prohibition – Excess of jurisdiction – Industrial Relations Commission (NSW) – Whether writ lies in the circumstances – Commission in Court Session a superior court of record of limited jurisdiction equivalent in status to the Supreme Court – Whether application for prohibition premature – Likelihood or danger of order being made in excess of jurisdiction – Relevance of privative provision purporting to exclude issue of writ – Relevance of failure of respondents to make jurisdictional objection before the Commission – Relevance of specialist subject-matter of disputes before the Commission.
Statutes – Construction – Interpretation – Remedial statute – Purposive approach to construction – Objects of statute.
Statutes – Privative clause – Industrial Relations Commission (NSW) – Whether privative provision applicable – Relevance of exclusion of the right to appeal to the Supreme Court and hence to the High Court.
Statutes – Construction – Interpretation – Composite phrase incorporating technical words – Extrinsic matters – Legislative history – Minister's second reading speech – Relevance of Parliament's purpose of successive re-enactment
in…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Fish v Solution 6 Holdings Ltd [2006] HCA 22
Case
[2006] HCA 22
Decision Date
CaseChat Overview and Summary
The appeal concerned the jurisdiction of the Industrial Relations Commission of New South Wales to declare a share purchase agreement void or to vary it under section 106(1) of the *Industrial Relations Act 1996* (NSW). The appellants sought a writ of prohibition from the Court of Appeal to restrain the Commission from exercising this jurisdiction. The core of the dispute revolved around whether the share purchase agreement, which stipulated the first appellant's entry into an employment contract with a related company of the purchaser as a condition precedent to completion, constituted a "contract whereby a person performs work in any industry" within the meaning of the Act.
The legal issues before the High Court were whether the Industrial Relations Commission had jurisdiction to consider the share purchase agreement as a contract whereby a person performs work in an industry, and consequently, whether a writ of prohibition was an appropriate remedy to restrain the Commission from exercising its powers. This involved determining the proper construction of section 106(1) of the *Industrial Relations Act 1996* (NSW), particularly the phrase "whereby a person performs work in any industry," and considering the relevance of the employment contract being a condition precedent to the share purchase agreement. The Court also had to consider the effect of a privative provision in the Act and whether the application for prohibition was premature, given that no jurisdictional objection had been raised before the Commission.
The Court reasoned that the *Industrial Relations Act 1996* (NSW) should be construed purposively, with a view to preventing subterfuges that remove workers from the protections of industrial awards. Previous High Court decisions, such as *Brown v Rezitis* and *Stevenson v Barham*, indicated that the Commission's powers under equivalent provisions were not to be narrowly construed and could extend to arrangements that formed part of a broader scheme to circumvent industrial law. The majority held that the share purchase agreement and the subsequent employment contract were intrinsically linked and formed part of a composite arrangement under which work was performed in an industry. Therefore, the Commission had jurisdiction to consider the fairness of the entire arrangement.
The High Court dismissed the appeal, upholding the decision of the Court of Appeal. The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
The stated considerations bring me to a conclusion contrary to that reached by the majority of this Court and opposite to that reached by the Court of Appeal. The appeal should be allowed. The proceedings should be returned to the Commission for the regular discharge of its powers and, if jurisdiction is found after the hearing of the evidence, the provision or refusal of relief.Insufficient attention to the facts Evidence and pre-emption:Cases of the present kind are typically fact intensive. It is only from a full understanding of the facts, found by the court or tribunal with the responsibility to decide them, that questions of jurisdiction, discretion and relief can be safely resolved. In the present case, this desirable course was not followed. Although proceedings were commenced in the Commission in March 2002, the respondents to those proceedings, without raising any jurisdictional objection before the Commission, sought relief from the Court of Appeal in the nature of a writ of prohibition, directed to the Commission, to prevent it exercising its powers under s 106 of the IR Act with respect to a share sale agreement between the parties[44]. The apparent reason for this pre-emptive strike was an attempt to circumvent the operation of a privative provision in the IR Act[45] by which the State Parliament had strengthened its attempt[46] to forbid intrusion by the Supreme Court into "a decision or purported decision of the Commission".[44](2004) 60 NSWLR 558 at 562 [1]-[4]. The orders made by the Court of Appeal are set out at 596-597 [159].[45]IR Act, s 179.[46]By enhancing the privative provision contained in the former Industrial Relations Act 1991 (NSW) ("the 1991 Act"), s 301(1). In the nature of such an interruption to the regular course of proceedings contemplated by Parliament in terms of the IR Act, an imperfect foundation is presented for a decision on a question of legal and practical importance. Moreover, as the reasons of Gleeson CJ, Gummow, Hayne, Callinan and Crennan JJ ("the joint reasons") suggest, the issue for resolution is inescapably rich with facts. In law, the judicial decision may ultimately hang on a single word, "whereby"[47], over which courts have struggled in the past. But that struggle has normally been performed with the benefit of full evidence and of findings made upon that evidence.[47]IR Act, s 106(1). See joint reasons at [36]-[41]. In deciding whether the propounded "arrangements" are ones whereby a party performs work in an industry, there is no way that a correct conclusion can normally be reached except by examining closely the details of those arrangements. Necessarily, this takes the decision-maker beyond the text of any written contract. It demands a most thorough understanding of the parties' relationships. In this Court the contesting respondents succeed because, in effect, they sever the employment contract from other parts of the contractual arrangements between the parties. They contend that work in an industry in New South Wales is only performed pursuant to the employment contract so that the other related arrangements are not contracts or arrangements as defined, whereby such work is performed. As I shall show, that interpretation involves an impermissibly narrow and artificial reading of the IR Act and is contrary to past authority and to legal principle.
In 1991, the 1940 Act was repealed by the Industrial Relations Act 1991 (NSW). Section 275 of that Act gave the Commission power to declare certain contracts void. The contracts were identified as "any contract or arrangement or any related condition or collateral arrangement under which a person performs work in any industry" (emphasis added). The grounds upon which the Commission could exercise those powers were stated in the same way as they had been in s 88F. When the 1991 Act was repealed and replaced in 1996, by the Act now under consideration, the definition of unfair contract restated the relevant criteria by treating "unfair, harsh or unconscionable" as one criterion rather than "unfair" and "harsh or unconscionable" as separate criteria. This change may be noted but put to one side. Nothing was said to turn on it. Nor was any point made about the use, in the 1991 Act, of the expression "under which" rather than "whereby" as the link between the relevant contract or arrangement and a person performing work in any industry.This Court's earlier decisions This Court first considered questions about the operation of s 88F of the 1940 Act (as amended by the 1966 Act) in Brown v Rezitis[19]. That case concerned the ambit of the Commission's power under s 88F to order payment of money, and it was held that the power was not limited to making an order for payment of money by one of the parties to the relevant contract. The power was held[20] to extend to such orders as can reasonably be thought to have a real connection with the making, variation or avoidance of that contract. As Barwick CJ pointed out[21], one of the purposes of s 88F was to "deal with subterfuges, subterfuges which will take the worker out of the relationship of master and servant and therefore out of the operation of an industrial award designed, amongst other things, for the protection of workers in industry". Because there may be persons involved in the subterfuge who were not parties to the contract (but who derived benefit from its making or its execution) no narrow view was to be taken of the power to make an order for payment of money.[19](1970) 127 CLR 157.[20](1970) 127 CLR 157 at 165 per Barwick CJ.[21](1970) 127 CLR 157 at 164. This Court next considered questions about the operation of s 88F of the 1940 Act in Stevenson v Barham[22]. The case concerned a share‑farming agreement. In the Court of Appeal of New South Wales it had been held[23] that s 88F applied only to contracts made in "an industrial context": contracts having what had earlier been described[24] as "an industrial colour or flavour". It was this "industrial context" or "industrial colour or flavour" which was said to afford the link between the Commission's powers and the prevention of subversion of the scheme and purposes of industrial legislation.[22](1977) 136 CLR 190.[23]Barham v Stevenson [1975] 1 NSWLR 31 at 35 per Street CJ, 41 per Hope JA.[24]Ex parte V G Haulage Services Pty Ltd; Re The Industrial Commission of New South Wales [1972] 2 NSWLR 81 at 87 per Jacobs JA.
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ, GUMMOW, HAYNE, CALLINAN AND CRENNAN JJ,
KIRBY J,
HEYDON J