Informax International Pty Ltd v Clarius Group Ltd - [2012] FCAFC 165

FEDERAL COURT OF AUSTRALIA
Informax International Pty Ltd v Clarius Group Limited [2012] FCAFC 165

Citation: Informax International Pty Ltd v Clarius Group Limited [2012] FCAFC 165

Appeal from: Informax International Pty Ltd v Clarius Group Limited (2011) 192 FCR 210; [2011] FCA 183
Informax International Pty Ltd v Clarius Group Limited (No 2) (2011) 282 ALR 405; [2011] FCA 934

Parties: INFORMAX INTERNATIONAL PTY LTD and ISABEL MENANO-PIRES v CLARIUS GROUP LIMITED

File number: NSD 1484 of 2011

Judges: BESANKO, JAGOT AND BROMBERG JJ

Date of judgment: 20 November 2012

Catchwords:
CONTRACT – whether contract “unfair” within the meaning of the Independent Contractors Act 2006 (Cth) – validity of restraints of trade – relationship between restraints of trade and the Independent Contractors Act 2006 (Cth)

CONTRACT – power of Court to make an order varying a contract – time of operative effect of such order – construction of ss 12(3) and 16(4) Independent Contractors Act 2006 (Cth)

Legislation: Commonwealth Conciliation and Arbitration Act 1904-1915 (Cth)
Independent Contractors Act2006 (Cth)
Industrial Relations Act 1988 (Cth)
Industrial Relations Reform Act 1993 (Cth)
Workplace Relations Act 1996 (Cth)
Workplace Relations Amendment (Work Choices) Act2005 (Cth)
Workplace Relations and Other Legislation Amendment Act 1996 (Cth)
Workplace Relations Legislation Amendment (Independent Contractors) Act 2006 (Cth)
Industrial Arbitration Act 1940 (NSW)
Industrial Relations Act 1991 (NSW)
Industrial Relations Act 1996 (NSW)
Restraints of Trade Act 1976 (NSW)
Federal Court Rules 1979 (Cth)
Independent Contractors Bill 2006 (Cth)
Industrial Relations Legislation Amendment Bill 1992 (Cth)

Cases cited: AB v Western Australia (2011) 244 CLR 390; [2011] HCA 42
Adamson v New South Wales Rugby League Ltd (1991) 31 FCR 242
Aerial Taxi Cabs Co-operative Society Ltd v Lee (2000) 102 FCR 125; [2000] FCA 1628
Aerotek, Inc. v Burton 835 So 2d 197 (2001)
Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96
Allied Express Transport Pty Ltd v Mears [2010] NSWSC 1112
Aussie Home Loans v X Inc Services (2005) ATPR 42-060; [2005] NSWSC 285
Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270; [2000] HCA 30
Re Becker & Harry M Miller Attractions Pty Ltd (No 2) [1972] AR (NSW) 298
Buchmueller v Allied Express Transport Pty Ltd (1999) 88 IR 465; [1999] FCA 319
Cactus Imaging Pty Ltd v Peters (2006) 71 NSWLR 9; [2006] NSWSC 717
Columbus Medical Services, LLC v Thomas 308 SW 3d 368 (2009)
Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390
Consultants & Designers, Inc v Butler Service Group, Inc 720 F 2d 1553 (1983)
Daley v New South Wales Rugby League Ltd (1995) 78 IR 247
Dalysmith Corporation (Aust) Pty Ltd v Cray Personnel Pty Ltd (unreported, Supreme Court of New South Wales, 14 April 1997)
Dickins v Herald and Weekly Times Ltd (1994) 124 ALR 308
Re Dingjan; ex parte Wagner (1995) 183 CLR 323
Electrolux Home Products Pty Ltd v The Australian Workers’ Union (2004) 221 CLR 309; [2004] HCA 40
Esso Petroleum Co. Ltd v Harper’s Garage (Stourport) Ltd [1968] AC 269
Finch v Herald & Weekly Times Ltd (1996) 65 IR 239
Gerrard v Mayne Nickless Ltd (1996) 135 ALR 494
Hanna v OAMPS Insurance Brokers Ltd (2010) 202 IR 420; [2010] NSWCA 267
Hanover Insurance Brokers Ltd v Schapiro [1994] IRLR 82
Harding v Ansvar Australia Insurance (1998) 91 IR 1
Harding v EIG Ansvar Ltd (2000) 95 IR 349; [2000] FCA 46
Herbert Morris Ltd v Saxelby [1916] 1 AC 688
Informax International Pty Ltd v Clarius Group Limited (2011) 192 FCR 210; [2011] FCA 183
Informax International Pty Ltd v Clarius Group Limited(No 2) (2011) 282 ALR 405; [2011] FCA 934
Jordan v Aerial Taxi Cabs Co-operative Society Ltd (2001) 108 IR 263; [2001] FCA 972
Kao, Lee & Yip (a firm) v Koo Hoi-Yan [1995] 1 HKLR 248
Keldote Pty Ltd v Riteway Transport Pty Ltd (2009) 185 IR 155; [2009] FMCA 319
Kores Manufacturing Co Ltd v Kolok Manufacturing Co Ltd [1957] 1 WLR 1012
Kores Manufacturing Co Ltd v Kolok Manufacturing Co Ltd [1959] Ch 108
Lindner v Murdock’s Garage (1950) 83 CLR 628
Office Angels Ltd v Rainer-Thomas [1991] IRLR 214
Papa v Finemores (Print L4930, AIRC, 31 August 1994) Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers’ Union of Australia (1987) 163 CLR 656
Stacks Taree Pty Ltd v Marshall (No 2) [2010] NSWSC 77
Standish v University of Tasmania (1988) 26 IR 342
Telegraph Newspaper Co Pty Ltd v Australian Journalists’ Association (1962) 3 FLR 39
Re Transport Workers Union of Australia (1993) 50 IR 171
Woolworths Ltd v Olson [2004] NSWCA 372

Blake HM “Employee Agreements not to Compete” (1960) 73 Harv L Rev 625
Heydon JD “How Far Can Trial Courts and Intermediate Appellate Courts Develop the Law” (2009) 9(1) OUCLJ 1 Heydon JD, The Restraint of Trade Doctrine (3rd ed, LexisNexis Butterworths, 2008)

Dates of hearing: 21-22 May 2012

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 192

Counsel for the Appellants: Mr M J Kimber SC and Mr N E Furlan

Solicitor for the Appellants: Harmers Workplace Lawyers

Counsel for the Respondent: Mr A Moses SC and Mr Y Shariff

Solicitor for the Respondent: Lander & Rogers Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1484 of 2011

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
INFORMAX INTERNATIONAL PTY LTD
First Appellant

ISABEL MENANO-PIRES
Second Appellant

AND:
CLARIUS GROUP LIMITED
Respondent

JUDGES:

BESANKO, JAGOT AND BROMBERG JJ

DATE OF ORDER:

20 NOVEMBER 2012

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Any application by the appellants to amend the notice of motion dated 21 April 2011 is to be set out in writing and supported by such submissions as those parties wish to make. Such documents are to be filed and served within seven days.
2.Any submissions in response by the respondent are to be filed and served within fourteen days.
3.Any submissions in reply by the appellants are to be filed and served within seventeen days.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1484 of 2011

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
INFORMAX INTERNATIONAL PTY LTD
First Appellant

ISABEL MENANO-PIRES
Second Appellant

AND:
CLARIUS GROUP LIMITED
Respondent

JUDGES:

BESANKO, JAGOT AND BROMBERG JJ

DATE:

20 NOVEMBER 2012

PLACE:

SYDNEY

REASONS FOR JUDGMENT
THE COURT:
THE PROCEEDING

Although this proceeding involves an appeal, a cross-appeal and contentions there are two principal issues which must be determined. The first is whether the primary judge erred in finding that certain contracts between Candle Australia Ltd, now known as Clarius Group Limited (Candle), Informax International Pty Ltd (Informax) and Isabel Menano-Pires (Mrs Menano-Pires) first executed in February 2007 and as extended thereafter are unfair or harsh within the meaning of s 12(1) of the Independent Contractors Act 2006 (Cth) (the IC Act). The second is whether, if such contracts are found to be unfair or harsh, an order may be made that varies the contract with operative effect from a date which predates the making of the Court’s order, having regard to the terms of s 16(4) of the IC Act (which provides that “[a]n order takes effect on the date of the order or a later date specified in the order”).
To understand how these issues arise it is necessary to provide a brief review of the facts and the way in which the primary judge resolved the proceeding in two judgments, Informax International Pty Ltd v Clarius Group Limited (2011) 192 FCR 210; [2011] FCA 183 (the first judgment) and InformaxInternational Pty Ltd v Clarius Group Limited (No 2) (2011) 282 ALR 405; [2011] FCA 934 (the second judgment).
BACKGROUND
The facts
Insofar as this proceeding is concerned there is no relevant factual dispute. As the primary judge found, Mrs Menano-Pires is an experienced information technology (IT) project manager. She provides her services through the company Informax. Candle is a recruitment firm which specialises in the placement of IT contractors with large corporations. Candle is a large business providing recruitment services across the Asia Pacific region. Apart from those contractors whom it places in positions with its clients, it has more than 350 of its own staff located in major cities across the region such as Sydney, Melbourne, Hong Kong, Beijing and Singapore as well as many others and operates across a number of sectors including the IT sector.
One of Candle’s clients was Woolworths Ltd (Woolworths). On 23 August 2006 Candle and Woolworths entered into a contract referred to as the Woolworths Consulting Services Agreement (the Candle-Woolworths contract). This contract involved Candle supplying to Woolworths personnel to provide Woolworths with IT services.
In February 2007 Candle, Informax and Mrs Menano-Pires entered into a contract (the Candle contract). The Candle contract involved Informax providing the services of Mrs Menano-Pires to Candle’s client Woolworths. The Candle contract commenced on 5 March 2007 and concluded on 1 June 2007. By agreement, however, the Candle contract was extended on the same terms and conditions on 2 June 2007 for a period of 26 weeks concluding on 3 December 2007 (the first extension), 3 December 2007 for a period of 26 weeks concluding on 31 May 2008 (the second extension) and 1 June 2008 for a period of 4 weeks concluding on 30 June 2008 (the third extension).
In July 2008 Informax and Woolworths entered into a contract also referred to as the Woolworths Consulting Services Agreement (the Informax-Woolworths contract). This contract involved Informax providing Mrs Menano-Pires’ IT services to Woolworths as contemplated by the execution of a service schedule from 1 July 2008. The only service schedule executed involved Informax providing Mrs Menano-Pires’ IT services to Woolworths until 30 September 2008, although more service schedules continuing this work were contemplated before 30 September 2008.
When Candle became aware of the Informax-Woolworths contract Candle communicated to Woolworths its concern about Woolworths being in breach of provisions of the Candle-Woolworths contract, specifically cll 7.2 and 7.3, by reason of its direct contracting with Informax. Woolworths thus did not execute the further service schedules contemplated between it and Informax under the Informax-Woolworths contract and, for good measure, terminated the Informax-Woolworths contract (although, as the primary judge noted, this contract had concluded on 30 September 2008 in any event).
In the proceedings before the primary judge Informax and Mrs Menano-Pires, insofar as relevant for present purposes, claimed that the Candle contract (including the extensions) is unfair and/or harsh and should be varied under the IC Act and also claimed damages for breach of contract (the breach contemplated being breach of the contract as extended and as sought to be varied under the IC Act). They also alleged a breach of cl 2.1 of the Candle contract as entered into and extended. Candle cross-claimed against Informax alleging breach of the Candle contract (as extended) and damages for the margin Candle said it would have received on the work Mrs Menano-Pires carried out for Woolworths under the Informax-Woolworths contract. In defence, Informax and Mrs Menano-Pires alleged that the provision of the Candle contract on which Candle relied to assert breach, cl 4.4, was an invalid restraint of trade.
Before explaining the primary judge’s reasoning it is convenient to identify the relevant provisions of the agreements and the IC Act.
The Candle-Woolworths contract
The Candle-Woolworths contract defined Candle as the Supplier and otherwise contained the following provisions.
1 About this Agreement
…
1.3 Non-exclusivity
There is no obligation on Woolworths to obtain services of the type provided under this Agreement exclusively from the Supplier.
1.4 Benefit
This Agreement and each of the rights granted under it are for the benefit of all members of the Woolworths Group, in order that they may exercise and enforce all rights granted pursuant to this Agreement jointly and severally.
2 Services
2.1 Supplier to provide Services
The Supplier will provide the Services on the terms set out in this Agreement. The precise details of the Services, including a description of the Deliverables, will be set out in a Service Schedule.
2.2 Service Schedule Template
If and when Woolworths wishes to order Services, the Supplier will prepare and submit a draft Service Schedule to Woolworths. Each draft Service Schedule must contain the details required in and be substantially similar in form to the Service Schedule Template.
2.3 Incorporation of Service Schedule
When a draft Service Schedule has been agreed by the parties, the parties will sign the Service Schedule and it will be incorporated into this Agreement.
…
3 Term
3.1 Term of this Agreement
This Agreement begins on the Commencement Date and continues until the later of:
a) 3 years after the date of this Agreement; or
b) termination or expiration of all Service Schedules,
unless terminated earlier in accordance with this Agreement (“Term”).
3.2 Term of a Service Schedule
Each Service Schedule commences on the Service Schedule Commencement Date and continues until the expiration of the Service Schedule Term unless terminated earlier in accordance with this Agreement.
…
7 Personnel
7.1 Key Personnel
The parties agree that if specified in a Service Schedule the Supplier must:
a)appoint the Key Personnel to provide the Services under that Service Schedule;
b)uses the Key Personnel to provide those Services; and
c)unless otherwise agreed, only use Key Personnel to provide those Services.
7.2 No solicitation
Neither party nor any of its Related Bodies Corporate will directly or indirectly employ, engage, solicit or otherwise retain any person who is, or has been a Representative of the other party, to:
a)become an employee of the first party or any of its Related Bodies Corporate; or
b)provide services to the first party or any of its Related Bodies Corporate (whether directly or indirectly, including through a related, associated, subsidiary or labour hire company),
without the written consent of the other party.
7.3 Term of obligation
The obligation in clause 7.2 (No solicitation) commences in respect of each Representative on the date the Representative first becomes directly involved in the provision of the Services and ends 12 months after the Representative ceases to be directly involved in the provision of the Services.
7.4 General Advertisements
Clause 7.2 (No solicitation) does not apply if a party in good faith recruits a Representative of the other party for a position which has been publicly advertised by or on behalf of that other party and to which that person has responded, provided there has been no solicitation, inducement or encouragement of that person to apply for that position.
8 Change Management
…
8.2 Change request
Woolworths may request a change to:
a)the scope or description of any of the Services; or
b)any of the Specifications;
(each a “Change”) by issuing a notice to the Supplier.
…
17.4 Definitions
…
Key Personnel means the Supplier’s personnel specified in the applicable Service Schedule as amended from time to time in accordance with this Agreement.
…
Related Body Corporate has the meaning given to it in the Corporations Act 2001 (Cwlth).
Representative of a party includes an employee, agent, officer, director, auditor, advisor, partner, consultant, contractor or subcontractor of that party.
…
Woolworths Group means Woolworths, its Related Bodies Corporate and its Joint Venture Partners.
The Candle contract
The Candle contract as executed and extended on the three occasions set out above defined Informax as the Contractor, Mrs Menano-Pires as the Principal Person and Woolworths as the Client. It also contained the following provisions.
2. SCOPE OF AGREEMENT
2.1This Agreement, together with the conditions set out in the attached Schedules, constitutes the entire agreement for the supply of services by the Contractor to Candle and supersedes any representations, warranties, agreements or statements of any kind, whether written or oral, on the subject matter herein.
…
2.3At any time during the term of this Agreement, Candle may offer to the Contractor an extension to the Conclusion Date specified in Schedule A. If the Contractor accepts the extension then, unless otherwise agreed to in writing, the terms and conditions of this Agreement shall apply.
3.        SERVICES TO BE PROVIDED
3.1Candle has been engaged to supply contract personnel to the client named in Schedule A (“Client”) and the Contractor agrees to provide Candle the Principal Person named in Schedule A to perform the required services under the direction and supervision of the Client (“Services”) and in accordance to this Agreement.
…
4.        RELATIONSHIP BETWEEN CANDLE AND THE CONTRACTOR
4.1Nothing in this Agreement may be deemed to constitute a partnership, joint venture, agency or other legal relationship between Candle and the Contractor other than that of supplier and purchaser.
…
4.3The Contractor and the Principal Person shall be entitled to carry out any other work of whatsoever nature which may be offered to it by another party other than the Client provided always that:
a)the performance of such other work shall not interfere with the proper performance of the Services;
b)there has been no diversion of work away from Candle or the Client;
c)there is no conflict of interest between performing the Services and carrying out such other work; and
d)the Contractor shall immediately notify Candle and/or the Client of any situation referred to in item a), b) or c) above which may arise or potentially arise during the term of this Agreement.
4.4The Contractor and the Principal Person agrees that during the term of this Agreement and for a period of six (6) months after the termination of this Agreement, it shall not, either directly or indirectly through another organisation, do any of the following:
a)work for or be engaged by the Client, unless otherwise agreed to by Candle in writing;
b)employ or otherwise engage, or solicit or offer employment or other engagement to any employee or contractor of the Client or Candle; or
c)induce, solicit or entice or attempt to induce, solicit, or entice from Candle any of its clients.
d)solicit, interfere with, entice or cause to be enticed away from the Client, any existing customer of the Client.
…
5.        CANDLE RESPONSIBILITIES
5.1Candle shall use all commercially reasonable efforts to promote the services of the Contractor to the Client during the term of this Agreement to the mutual benefit of the parties.
5.2Candle shall pay the Contractor the agreed Fees in accordance with clause 9.
…
7.TERMINATION AND TERM
7.1Termination With Notice
The Services of the Contractor may be terminated by notice in writing if:
a)The Services of the Contractor may be terminated by the Client notifying Candle that the services of the Contractor are no longer required for any reason other than those described in 7.2. In this case, Candle will terminate this Agreement in writing on the same terms as it receives from the Client.
…
7.2      Termination Without Notice
          Candle may immediately terminate this Agreement if:
a)the Client is dissatisfied with the performance of the Services by the Contractor or its Principal Person;
…
7.3      No Compensation
Upon termination of this Agreement in accordance with its express terms neither the Contractor nor the Principal Person is entitled to claim any compensation or damages from Candle or the Client in relation to that termination howsoever caused.
7.4      Term
This Agreement shall commence on the Commencement Date specified in Schedule A and, unless otherwise extended by the parties or terminated in accordance with any other provision of this Agreement, shall continue until the Conclusion Date specified in Schedule A. Notwithstanding the forgoing, any indemnity or any obligation of confidence under this Agreement is independent and survives termination of this Agreement. Any other term by its nature intended to survive termination of this Agreement survives termination of this Agreement.
9.        FEES FOR SERVICE
9.1The Fees payable by Candle to the Contractor are set out in Schedule A, Fees.
9.2The Fees includes compensation for giving up the right to work for or be engaged by any Client of Candle as set out in clause 4.4.

The Fees under the Candle contract which Candle paid Informax constituted the sum of $792 including GST per day. Candle charged Woolworths for the provision by Informax of Mrs Menano-Pires’ services the Fees payable to Informax and a margin. Candle’s margins ranged from about 8% to 13% of the fees it charged clients under its various supply agreements.
The IC Act
Section 3 sets out the objects of the IC Act in these terms:
(1)The principal objects of this Act are:
(a)to protect the freedom of independent contractors to enter into services contracts; and
(b)to recognise independent contracting as a legitimate form of work arrangement that is primarily commercial; and
(c)to prevent interference with the terms of genuine independent contracting arrangements.
(2)The Act achieves these objects, principally, by providing for the rights, entitlements, obligations and liabilities of parties to services contracts to be governed by the terms of those contracts, subject to:
(a)the rules of common law and equity as applying in relation to those contracts; and
(b)the laws of the Commonwealth as applying in relation to those contracts; and
(c)the laws of the States and Territories as applying in relation to those contracts, other (in general) than any such laws that confer or impose rights, entitlements, obligations or liabilities of a kind more commonly associated with employment relationships.
Section 5(1) provides that:
(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).
Section 7 excludes certain State and Territory laws including such laws permitting any services contract to be set aside, amended or varied on any unfairness ground. Section 9 specifies unfairness grounds in relation to a services contract in terms which include that the contract is unfair, harsh, unconscionable, unjust or against the public interest.
By s 11, Pt 3 of the IC Act, relating to unfair contracts, applies to services contracts. The IC Act thus embodies its own regime for the regulation of such contracts.
Section 12, in Pt 3 of the IC Act, is in these terms:
(1)An application may be made to the Court to review a services contract on either or both of the following grounds:
(a)the contract is unfair;
(b)the contract is harsh.
(2)An application under subsection (1) may be made only by a party to the services contract.
(3)In reviewing a services contract, the Court must only have regard to:
(a)the terms of the contract when it was made; and
(b)to the extent that this Part allows the Court to consider other matters-other matters as existing at the time when the contract was made.
(4)For the purposes of this Part, services contract includes a contract to vary a services contract.
Section 15 provides as follows:
(1)In reviewing a services contract in relation to which an application has been made under subsection 12(1), the Court may have regard to:
(a)the relative strengths of the bargaining positions of the parties to the contract and, if applicable, any persons acting on behalf of the parties; and
(b)whether any undue influence or pressure was exerted on, or any unfair tactics were used against, a party to the contract; and
(c)whether the contract provides total remuneration that is, or is likely to be, less than that of an employee performing similar work; and
(d)any other matter that the Court thinks is relevant.
(3)If the Court forms the opinion that a ground referred to in subsection 12(1) is established in relation to the whole or a part of the services contract, the Court must record its opinion, stating whether the opinion relates to the whole or a specified part of the contract.
(4)The Court may form the opinion that a ground referred to in subsection 12(1) is established in relation to the whole or a part of the services contract even if the ground was not canvassed in the application.
Section 16 provides that:
(1)If the Court records an opinion under section 15 in relation to a services contract, the Court may make one or more of the following orders in relation to the opinion:
(a)an order setting aside the whole or a part of the contract;
(b)an order varying the contract.
(2)An order may only be made for the purpose of placing the parties to the services contract as nearly as practicable on such a footing that the ground on which the opinion is based no longer applies.
(3)If an application under this Part is pending, the Court may make an interim order if it considers it is desirable to do so to preserve the position of a party to the services contract.
(4)An order takes effect on the date of the order or a later date specified in the order.
(5)A party to the services contract may apply to the Court to enforce an order by injunction or otherwise as the Court considers appropriate.
(6)Subject to section 14, this section does not limit any other rights of a party to the services contract.
THE PRIMARY JUDGE’S REASONING
Unfair contract?
The primary judge dealt with this issue in the first judgment. The primary judge identified cl 4.4 of the Candle contract and cll 7.2 and 7.3 of the Candle-Woolworths contract as covenants in restraint of trade (at [23]). Informax and Mrs Menano-Pires were aware of the terms of cl 4.4 of the Candle contract to which both were parties. They were not aware, however, of cll 7.2 and 7.3 of the Candle-Woolworths contract to which neither was a party (at [97]), despite the fact that the Candle-Woolworths contract was executed before the Candle contract and contained a covenant potentially affecting the employment of Mrs Menano-Pires by Woolworths for a longer period (12 months) than the Candle contract (6 months).
Insofar as the provisions in question constituted restraints of trade the primary judge at [23] observed (and it is not in dispute) that:
At common law, a restraint of trade is contrary to public policy and void unless it can be shown that the restraint is, in the particular circumstances of the case, a reasonable one: Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co Ltd [1894] AC 535 at 565 per Lord Macnaghten. Reasonableness, in that context, is to be judged having regard to the legitimate interests of the person in whose favour the restraint operates: Bridge v Deacons [1984] AC 705 at 714.
The primary judge at [63] also noted (and again it is not in dispute) that s 4(1) of the Restraints of Trade Act 1976 (NSW) (the Restraints of Trade Act) provides that a “restraint of trade is valid to the extent to which it is not against public policy, whether it is in severable terms or not”. The primary judge said (also at [63]):
The established operation of s 4(1) requires me, inter alia, to ask whether at the critical time cl 4.4 was effective: Orton v Melman [1981] 1 NSWLR 583 at 587-588 per McLelland J. That time is the period between the time at which Ms Diduszko first contacted Woolworths about her discovery that Mrs Menano-Pires was still working at Woolworths, on 17 September 2008, through to the time Mrs Menano-Pires was asked to leave Woolworths’ premises on 1 October 2008.
The primary judge (at [24]) characterised Candle’s case on the validity of the restraints of trade as “reasonably protecting two quite distinct legitimate interests”. The primary judge continued (at [24] to [26]):
The first is its interest in maintaining its customer connexion with Woolworths. Putting the matter broadly, it says that it goes to considerable ends to obtain clients such as Woolworths and it is legitimately entitled to protect itself against the risk of contractors placed with such clients exploiting the relationship thereby developed by poaching those clients from Candle.
The second interest is what Candle referred to as the interest in avoiding the risk of “opportunistic disintermediation,” that is, the middleman’s risk of being cut out.
There is no doubt that the first interest, that is, customer connexion, is a recognised category of legitimate interest for the purposes of the law concerning covenants which are in restraint of trade. However, the second interest in avoiding opportunistic disintermediation is not yet recognised in Australia. It being clear that the categories of legitimate interest are not closed (see J D Heydon, The Restraint of Trade Doctrine (3rd Ed, 2008) at 133) the question which arises is whether the interest should now be recognised.
Candle, it is convenient to note, stressed in these proceedings that it had in fact identified a single overarching commercial interest in maintaining its labour hire pool. According to Candle the labels “customer connexion” and “opportunistic disintermediation” are apt to obscure the nature of its interest and thus the proper analysis of the reasonableness of the restraints.
The primary judge dealt with the interest described as customer connexion at [27] to [44], reasoning as follows:
(1)One legitimate interest long accepted by the Courts is an employer’s interest in maintaining its connexion with its own customers against misappropriation by its employees or contractors: Lindner v Murdock’s Garage (1950) 83 CLR 628 at 633-634 per Latham CJ (Webb J agreeing at 647), 650 per Fullager J and 654 per Kitto J (at [27]).
(2)The guiding principle appears to be that a covenant to restrain a former employee from dealing with an employer’s clients will be supportable on the basis that it protects the employer’s customer connexions where there is “some element in the employee-customer relationship which causes customers to rely on the employee and to regard the employee as the business to the exclusion of the employer”: Heydon JD, The Restraint of Trade Doctrine (3rd ed, LexisNexis Butterworths, 2008) (Heydon (2008)) at 121 (at [28]).
(3)At least at a theoretical level there is no particular obstacle standing in the way of a conclusion that cl 4.4 may protect Candle’s interest in its customer connexion with Woolworths. This is because, if such an interest in fact exists, it is not difficult to see that it will justify some restraint on the ability of Informax and Mrs Menano-Pires to work with the former client (at [30]). In the context of labour hire firms such an interest had been recognised by Young J in Dalysmith Corporation (Aust) Pty Ltd v Cray Personnel Pty Ltd (unreported, Supreme Court of New South Wales, 14 April 1997) (at [33]) (Dalysmith).
(4)However, such an interest cannot sustain cl 7.2 of the Candle-Woolworths contract which, at least so far as this case is concerned, operates as a covenant by the client not to be poached. It is one thing to say that Candle’s interest in its customer connexion justifies a restraint on its staff or contractors eloping with Candle’s clients. It is another thing altogether to suggest that such an interest could justify a fetter on the client’s freedom to contract with whom it pleases. Of course, if Candle’s contract with Woolworths were an exclusive arrangement other notions might well intrude. But it is not such an arrangement and the primary judge did not see that any interest that Candle has in maintaining its client base against the blandishments of its former staff or contractors can justify a covenant binding the client itself not to leave Candle’s stable. It follows that he did not accept that any interest of Candle in its customer connexion with Woolworths can support cl 7.2 of the contract between them (at [31]).
(5)As to cl 4.4 of the Candle contract, the conclusion in Dalysmith rested on the identity of the employees and thus does not provide any assistance to Candle in this case (at [37]).
(6)Candle did not advance a separate argument that the facts showed that Mrs Menano-Pires had become Candle’s face to Woolworths so that, in accordance with principle, it had a legitimate interest in customer connexion, although there was some material which suggested that by reason of her position she might well have been afforded the opportunity to control Woolworths’ business as if it were her own (also at [37])..
(7)Accordingly, the primary judge considered that he was bound to approach the matter on the basis that Candle’s case on this issue was that it had an interest in customer connexion only by reason of Dalysmith. As Dalysmith turned on its own facts the primary judge rejected customer connection as a reasonable basis for the restraints in cl 4.4 of the Candle contract and cll 7.2 and 7.3 of the Candle-Woolworths contract.
The primary judge dealt with the interest described as opportunistic disintermediation at [45] to [67], reasoning as follows:
(1)The legitimate interest of a labour hire firm in avoiding the risk of opportunistic disintermediation was accepted by the Eleventh Circuit Court of Appeals in Consultants & Designers, Inc v Butler Service Group, Inc 720 F 2d 1553 (1983) (at [47]). The existence of the same interest, at least at the level of principle, was accepted by the Court of Civil Appeals of Alabama in Aerotek, Inc. v Burton 835 So 2d 197 (2001) at 203-204 and by the Tennessee Court of Appeals in Columbus Medical Services, LLC v Thomas 308 SW 3d 368 (2009) at 389 (at [48]).
(2)The submission that those decisions should not be followed in this country because they rest on the idea that a labour hire firm has a proprietary interest in a pool of employees per se and hence are inconsistent with Australian and English authority should not be accepted (at [49]).
(3)Something similar to the interest against the risk of opportunistic disintermediation was recognised in Cactus Imaging Pty Ltd v Peters (2006) 71 NSWLR 9; [2006] NSWSC 717 (Cactus Imaging) where Brereton J conducted an extensive review of the authorities and concluded, at 27, as follows (at [51]):
… The employees, along with the suppliers and the customers make up the three relations upon which the profitability of a business depends. The customers are not property, but their connection with the business adds value to the business and is recognised as deserving of protection in the proprietor’s legitimate interest. Similarly, employees are not property, but, all else being equal, a business with a stable trained workforce will be more attractive to a purchaser and command a higher price than one with a workforce which is unstable, disruptive or poorly trained, just as a loyal and satisfied clientele makes a business more attractive and valuable. In my opinion, staff connection constitutes part of the intangible benefits, which may give a business value over and above the value of the assets employed in it, and thus comprises part of its goodwill. It is amenable to protection by a covenant in a manner similar to customer connection, even in the absence of protectable confidences.
(4)White J did not go this far in Aussie Home Loans v X Inc Services (2005) ATPR 42-060; [2005] NSWSC 285 (Aussie Home Loans), preferring instead to recognise an interest in maintaining a stable workforce as arising from an employer’s entitlement to protect his or her confidential information in the identity and roles of its employees. Nevertheless, the flow of authority in this country now supports the conclusion reached by Brereton J. Bryson AJ thought the proposition for which Cactus Imaging stands “well-established in New South Wales”: Allied Express Transport Pty Ltd v Mears [2010] NSWSC 1112 at [14] (at [52]).
(5)The conclusion in Cactus Imaging, that an employer has an interest in staff connexion, formed part of the ratio decidendi of the decision. Because the principles at hand are common law ones CactusImaging is a statement about the common law of Australia. It follows that as a Court of co-ordinate jurisdiction the primary judge decided he was bound to follow CactusImaging unless persuaded that it is “plainly wrong”: see, writing extra-curially, JD Heydon “How Far Can Trial Courts and Intermediate Appellate Courts Develop the Law” (2009) 9(1) OUCLJ 1 at 22-23 (at [53]). CactusImaging is not plainly wrong. To the contrary the analysis in CactusImaging appears compelling (at [54]).
(6)Consequently, the primary judge considered that he was “bound to reject the applicants’ argument that Australian law does not recognise any form of proprietary interest in the arrangement of employees or contractors”. The primary judge said further (at [57]):
In that circumstance, I can see no other reason not to follow the United States authorities on the question of whether the disintermediation interest exists. I conclude, therefore, that a labour hire firm has a legitimate interest in protecting itself against the perils of opportunistic disintermediation.
(7)The interest, however, is an interest in recouping expenditure together perhaps with a profit component or, to put it slightly differently, it is an interest in being permitted profitably to charge for the introduction of the contractor to the client. Whether such an interest actually exists in this particular case inevitably directs attention to the nature of Candle’s business (at [58]).
(8)The evidence shows that Candle did put considerable economic effort into arranging the placement of contractors with its clients. But the evidence led did not descend to the level of explaining what the value of this effort was, what Candle’s profits were or how much of its investment had been recouped following Mrs Menano-Pires’ 15 month placement with Woolworths (at [63]). Candle has not (at [65]):
…demonstrated the extent of its disintermediation interest. As in the case of a covenant sustained by an employer’s interest in customer connexion it may be appropriate to approach the assessment of such interests in an impressionistic fashion: cf IRAF Pty Ltd v Graham [1982] 1 NSWLR 419 at 429 per Rath J. But even allowing that, Candle did not seek to rely, in this part of its case, on its daily margin on Informax’s work (ie how much it was making) or what its overhead costs were. On its cross-claim, Candle suggested it was making a margin of $75.15 per day. I do not think that I can fairly use that figure in this part of the case as it was not the subject of argument in the present context. It does, however, suggest that Candle may well have recouped, during the 15 month period Mrs Menano-Pires worked for Woolworths, in excess of $20,000 and this, in turn, may suggest that the questions surrounding the extent of its disintermediation interest are far from trivial. In any event, I am not satisfied that Candle has demonstrated that its legitimate interest in avoiding disintermediation justified restraining Informax or Mrs Menano-Pires from contracting with Woolworths during the period 17 September 2008 to 1 October 2008. It follows, during that period, cl 4.4 did not validly operate. No different reasoning can apply to cl 7.2.
For these reasons, the primary judge concluded that “[n]either cl 7.2 nor cl 4.4 validly operated between 17 September 2008 and 1 October 2008” (at [67]).
Having so concluded the primary judge declined to deal with the restraint of trade issues under the guise of the IC Act. In this regard the primary judge, at [95], said:
Candle took the point – soundly – that if the clauses were invalid they did not form part of the contract and could not therefore be reviewed under the Independent Contractors Act.
Nevertheless, the primary judge dealt with the claims under the IC Act at [90]-[145] of the first judgment. The primary judge expressed his conclusions in summary form at [96] and [97] in these terms:
…by reason of the conclusions I have reached above about the restraint of trade argument I accept that cl 4.4 was between 17 September 2008 and 1 October 2008 an invalid restraint of trade and I conclude that, as at the time that Mrs Menano-Pires was asked to leave Woolworths, it did not, in fact, prevent her from working for Woolworths.
…I accept that Mrs Menano-Pires was not told about cl 7.2. I conclude that the contract was unfair to the extent that it permitted Candle to seek to prevent Informax and Mrs Menano-Pires from working with Woolworths when at the relevant time, no legal fetters on their or its ability to do so existed.

The primary judge returned to the relationship between the restraint of trade doctrine and the IC Act at [142] and [143] commenting that “[i]t is not necessary, in light of the way I approach the case, to ascertain whether a contract in restraint of trade is also ‘harsh’ or ‘unfair’ within the meaning of s 12(1) of the Independent Contractors Act although the applicants spent some time seeking to show that it was. This is because, at least in New South Wales, where s 4(1) of the Restraints of Trade Act applies, the question cannot arise” and “[i]f a term of a contract in restraint of trade is void it does not form part of the contract and no question of its unfairness can arise”. Despite this the primary judge concluded (at [145]) that:
Candle and Informax had a bargain but it was not one (once the restraint of trade doctrine was taken into account) which contemplated any ability on Candle’s part to stop Informax working for Woolworths in the period 17 September 2008 to 1 October 2008. Yet Candle was in a position, by reason of its relationship with Woolworths, to bring about a result which not only lay outside the contract but which could not have been lawfully included in the contract as a covenant binding on Informax. Given Mrs Menano-Pires did not know of cl 7.2, this was a one-sided state of affairs and one which should be characterised as “unfair” within the meaning of s 12(1).
The primary judge was satisfied that relief could be granted despite the fact that the term of the Candle contract had expired. At [146] to [150] the primary judge, having considered the decisions in Re Dingjan; ex parte Wagner (1995) 183 CLR 323 (Dingjan) and Gerrard v Mayne Nickless Ltd (1996) 135 ALR 494 (Gerrard) about the operation of the predecessor provisions to the IC Act in ss 127A and 127B of the Industrial Relations Act 1988 (Cth) (the IR Act), concluded that “Candle’s argument that the Court has no power to review the contract between Candle and Informax because it had come to an end before the applicants’ present application was filed” should be rejected (at [150]).
As to the relief which should be granted the primary judge noted at [155] that “[o]nly the second variation (which occurred on 31 May 2008) and the third variation (which occurred on 4 June 2008) have any connexion with the events the subject of this litigation and only because the six month restraint provided for in each intersects with the period between 17 September 2008 to 1 October 2008” with the consequence that relief should be confined to those two contracts. The primary judge concluded as follows at [158]:
…the contracts between Candle and Informax of 31 May 2008 and 4 June 2008 should be varied by the addition of the following terms (which are largely based on those put forward by the applicants):
14.Candle will not take any step to enforce any provision in any contract between Candle and the Client, the purpose or likely effect of which would be (in whole or in part) to fetter, restrain or otherwise impede the Contractor or the Principal Person from being directly or indirectly engaged by the Client during the period of 17 September 2008 to 1 October 2008 (being a period after the expiry of this agreement) including any restraint provision that exists before the formation of this agreement.
15.Candle will not procure or encourage the taking of any step by the Client to enforce a provision of the kind referred to in clause 14.
In the first judgment the primary judge declined to deal with a proposed amendment to the pleadings by which Informax and Mrs Menano-Pires intended to seek damages for breach of the provisions of the Candle contract inserted by cll 14 and 15 as set out above. At [161] and [162] the primary judge said:
It [Candle] also submits that what the applicants effectively now wish to pursue is a claim for damages for retrospective breach of a retrospectively varied contract. It is said that this will give rise to complex issues.
At this stage, I think the appropriate course is to permit the parties to digest these reasons and for the applicants to make any application to amend their proceeding by notice of motion. The question of whether leave should be granted can then properly be ventilated.
The primary judge otherwise dismissed the claim of Informax and Mrs Menano-Pires for breach of cl 2.1 of the Candle contract at [85] to [89]. At [86] the primary judge noted their argument that cl 2.1 was “a warranty by which Candle should be taken to have promised that there was ‘no other restraint provision … that did or could operate as a restraint on the ability of the Applicants to work as IT contractors after the termination of any Services Contract’” but cl 7.2 of the Candle-Woolworths contract constituted such a constraint in breach of this warranty. The primary judge was satisfied, however, that properly construed cl 2.1 simply defined the bargain between the parties to the Candle contract and no more (at [89]).
The primary judge also dismissed Candle’s cross-claim for damages for its lost margin on providing Mrs Menano-Pires’ services to Woolworths by reason of the alleged breach of cl 4.4 of the Candle contract by Informax and Mrs Menano-Pires. At [164] the primary judge said that:
Since I have concluded that cl 4.4 was not enforceable during the period 17 September 2008 to 1 October 2008 the cross-claim should be dismissed insofar as it relates to that period. The same reasoning also supports the proposition that it has not been shown to be enforceable in the period 1 July 2008 to 16 September 2008 (that is, neither customer connexion nor disintermediation interests have been established). The cross-claim must, therefore, be dismissed with costs.
If incorrect in this regard the primary judge said he would have assessed Candle’s damages as follows (at [166]):
The amount paid to Informax under its final contract with Candle was $780 per day. The amount paid by Woolworths to Informax under its direct contract was $900 per day. The difference was $120 per day. Candle accepted that it incurred expenses of $44.85 per day. Accordingly, it would have been entitled to $75.15 per day which amounts to $4,959.90 for the period 1 July 2008 to 30 September 2008.
Accordingly, on 29 March 2011 the primary judge made the following orders:
1.The contracts between the Applicants and the Respondent of 31 May 2008 and 4 June 2008 be varied by the addition of the following terms:
“14.Candle will not take any step to enforce any provision in any contract between Candle and the Client, the purpose or likely effect of which would be (in whole or in part) to fetter, restrain or otherwise impede the Contractor or the Principal Person from being directly or indirectly engaged by the Client during the period of 17 September 2008 to 1 October 2008 (being a period after the expiry of this agreement) including any restraint provision that exists before the formation of this agreement.
15.Candle will not procure or encourage the taking of any step by the Client to enforce a provision of the kind referred to in clause 14.”
“Retrospective” orders?
In the second judgment the primary judge noted (at [2]) that Informax and Mrs Menano-Pires wished to amend their pleadings to allege that Candle, by persuading Woolworths between 17 September 2008 and 1 October 2008 to dispense with the services of Informax and Mrs Menano-Pires, breached the two terms of the contracts inserted by the Court on 29 March 2011. The primary judge continued:
(1)Candle submits that this should not be permitted because as at 17 September 2008 – 1 October 2008 the contract contained no such terms (which were not inserted until the orders of 29 March 2011 were made) and it cannot, therefore, have been in breach of them (at [2]).
(2)Informax and Mrs Menano-Pires submit that the orders of 29 March 2011 should be interpreted to be retrospective in effect so that the two terms set out above operate as though they were contained in the contract at the relevant time in 2008. In the alternative, they say that if the orders were not retrospective in that way, it is plain from the reasons for judgment that they were intended to be and, to the extent necessary, the orders should be amended pursuant to the slip rule (formerly O 35 r 7 of the Federal Court Rules 1979) to make that clear (at [3]).
(3)Informax and Mrs Menano-Pires also seek the insertion of another clause (prayer 3A) into the Candle contract by a proposed order as follows (at [4]):
3AFurther or in the alternative, an order varying the contracts between the Applicants and the Respondent of 31 May 2008 and 4 June 2008 by the addition of the following term:
“If Candle acts in a manner inconsistently with clause 14 or clause 15 Candle will pay, on 1 July 2011, the Contractor the sum of $450,000 (being the loss suffered by the Contractor from being engaged during the period from 17 September 2008 to 1 October 2008 and the loss of opportunity for the Contractor being engaged during the period from 2 October 2008 to 30 June 2010.”
(4)Candle resisted this application for additional relief relying on case management principles to contend that the making of such an application after judgment was too late and that such a fundamental recasting should not be permitted at the eleventh hour. In addition, it was said that the IC Act, by s 12(3), did not permit an examination of anything after the date of the contract’s formation so that the Court could not feasibly undertake an assessment of compensation arising from events post-dating the contract (in this case Candle’s post-contract persuasion of Woolworths to end its relationship with the applicants). Further, the clause proposed would, in any event, amount to a penalty (at [5]).
The primary judge reasoned as follows:
(1)The order of 29 March 2011 cannot be read as if it included the words ‘which variations are to take effect from the date of the formation of the contracts’. Accordingly, the primary judge did not accept the submission that the orders of 29 March 2011 purported to vary the contracts with retrospective effect from September 2008 (at [10]).
(2)Nevertheless, it is correct that such a retrospective effect was what the reasons for judgment, objectively viewed, assumed and, as such, there is jurisdiction to vary the orders of 29 March 2011 to make plain what the reasons for judgment assumed, the necessity for the variations’ retrospective effect (at [11]).
(3)Section 16(4) of the IC Act does not, however, permit the making of an order that brings about a variation to a contract at a time prior to the making of the order (at [12]). In summary:
(a)The High Court’s decision in Dingjan establishes that ss 127A-127C of the Industrial Relations Act 1988 (Cth) authorised amendments to a contract which has been terminated after the commencement of proceedings. The particular amendment in question in Dingjan was prospective, not retrospective, just as s 127B(4) apparently required (‘[a]n order takes effect from the date of the order or a later date specified in the order’) (at [34]).
(b)Gerrard then extended this conclusion to contracts which were terminated prior to the commencement of the proceedings. Again, the order in suit in that proceeding was prospective in form and not retrospective (at [34]).
(c)Accordingly, neither Dingjan nor Gerrard provides support for the view that s 16 of the IC Act may be used retrospectively to vary a contract (at [35]).
(d)Keldote Pty Ltd v Riteway Transport Pty Ltd (2009) 185 IR 155; [2009] FMCA 319 (Keldote) is authority to the contrary but the analysis of Dingjan and Gerrard in Keldote is not persuasive and should not be followed (at [36] to [38]).
(e)The words of s 16(4) are clear: the order may take effect on its making or some later date. To permit s 16(4) to be read so as to authorise an order taking effect prior to its making would render those words – apparently of limitation – otiose (at [40]).
(4)Prayer 3A is prospective in form and hence does not run into difficulties with s 16(4) (at [45]).
(5)However, prayer 3A (at [44]):
…assumes that Candle will have acted in breach of cll 14 and 15 (the clauses which were inserted by the orders of 29 March 2011). However, because the orders of 29 March 2011 did not insert those clauses with retrospective effect, and because I have declined to amend them so that they do, it seems to me somewhat difficult to understand how the term in prayer 3A could ever be activated for Candle’s conduct in September 2008 cannot have been inconsistent with cll 14 or 15 since they did not then exist.
(6)Prayer 3A must also confront the terms of s 12(3) of the IC Act, leading to the following observations (at [49]):
The structure of the provisions is as follows. Section 12(1) permits an application to be made on the grounds that a contract is ‘harsh’ or ‘unfair’; that application is an application to the Court ‘to review’; in conducting the review, the Court is limited to the terms of the contract and matters existing at the time the contract was formed (s 12(3)); if the Court forms the ‘opinion’ that the contract in question is ‘unfair’ or ‘harsh’ it must record that opinion (s 15(3)); the opinion is significant for the relief the Court can give is delimited by it – the Court may make an order setting aside the contract or varying it (s 16(1)) but whatever order is made this injunction applies: ‘An order may only be made for the purpose of placing the parties to the services contract as nearly as practicable on such a footing that the ground on which the opinion is based no longer applies’ (s 16(2)). What is to be remediated by any order made is, therefore, the unfairness or harshness identified in the opinion and, by reason of s 12(3), this can be based only on matters subsisting at the time of the contract’s inception. In this case, s 12(3) has this effect: I concluded that the contracts as formed were unfair because they left it open to Candle to seek to bring the applicants’ engagement by Woolworths to an end when it had no legal rights as against Woolworths or the applicants to do any such thing. That was an unfairness existing at the time the contracts were formed. The remedy available must be one which is at once both prospective (s 16(4)) and designed to address that, and no other, unfairness (s 16(2)).
(7)For these reasons, the IC Act (at [51]):
… is concerned with the prospective remediation of unfair or harsh contracts (e.g. s 16(4)) and that unfairness or harshness is to be judged by reference to the circumstances existing at the time of the contract’s formation (e.g. s 12(3)). There is no room in its provisions for attempts to obtain compensation for the fact of a contract having been unfair in its operation in the past. Any attempt to formulate the compensation for that past operation takes one directly into the forbidden area lying between the moment of the contract’s inception and the making of the Court’s orders. The effect of ss 12(3) and 16(4) is to operate as a bar on the consideration of events falling in the range delimited by them.
(8)It follows that (at [53]):
The combined operation of ss 12(3), 16(2) and 16(4) is to prevent an examination of the matters which would need to be examined in order to undertake an assessment of the appropriate compensation.
For these reasons the primary judge dismissed the notice of motion for further relief which Informax and Mrs Menano-Pires had filed as contemplated by [162] of the first judgment.
It is also relevant to note that the notice of motion which the primary judge dismissed referred to a proposed second further amended application which included not only prayer 3A but also retained reference to relief sought in the application from as early as 5 July 2010, being prayers 3(a), 3(b) and 3(c). Prayer 3A, in fact, was cast as an alternative form of relief to that contained in prayers 3(a), 3(b) and 3(c). Prayers 3(a) and (b) sought an indemnity or compensation for breach of: – (i) the terms Informax and Mrs Menano-Pires proposed be included in the Candle contract (and which, by the primary judge’s orders of 29 March 2011 became cll 14 and 15 of the Candle contract, albeit in terms different from those which Informax and Mrs Menano-Pires had proposed) and (ii) any step taken by Candle or Woolworths to enforce any “Restraint” (a term defined to mean “any provision, in any contract between Candle and the Client, the purpose or likely effect of which would be (in whole or in part) to fetter, restrain or otherwise impede the Contractor or the Principal Person from being directly or indirectly engaged by the Client at any time immediately following the termination of this contract”). The primary judge did not deal with prayers 3(a), 3(b) and 3(c) of the application in the first judgment other than an observation at [157] that there was “no reason to impose an indemnity whose absence from the contract causes no harshness or unfairness” and did not return to those prayers in the second judgment in which the focus was prayer 3A.
THE CANDLE CONTRACT – UNFAIR OR HARSH?
A preliminary observation
The structure of the primary judge’s reasons in the first judgment, dealing with the restraint of trade issues first and unfairness second, reflects a disputed issue of principle between the parties. Candle submitted both to the primary judge and on appeal that to the extent that cl 4.4 of the Candle contract and cl 7.2 of the Candle-Woolworths contract constituted an unreasonable restraint, the clauses were void when made. Accordingly, the clauses could not also be unfair or harsh within the meaning of s 12(1) of the IC Act. The primary judge accepted that submission (see the first judgment at [95], [142] and [143]). This acceptance founded Candle’s submission in the cross-appeal that, having accepted that “[if] a term of a contract in restraint of trade is void it does not form part of the contract and no question of unfairness can arise” (at [143]) and having found cl 4.4 and cl 7.2 to be void (at [67]), it was not open to the primary judge to find the Candle contract unfair because Mrs Menano-Pires did not know about cl 7.2 which formed part of the Candle-Woolworths contract (at [145]). Candle submitted that it followed from the primary judge’s conclusion that cl 4.4 and cl 7.2 were invalid restraints of trade that Mrs Menano-Pires’ lack of knowledge of cl 7.2, an invalid and unenforceable provision of the Candle-Woolworths contract, could not result in the unfairness of the Candle contract. Candle supported these submissions by reference to the objects of the IC Act in s 3(2), particularly the statement that the Act achieves its objects by providing for the rights and obligations of the parties to be governed by the terms of the contract subject to, relevantly, “the rules of common law and equity as applying in relation to those contracts”.
Candle’s fundamental proposition is that a contractual provision constituting an unreasonable restraint of trade which is void at common law thereby does not form part of the contract and can never be unfair or found a conclusion of unfairness. We do not accept this proposition. Section 3(2) of the IC Act should not be construed as supporting that conclusion. Section 3(2) is an objects provision which discloses that the IC Act is not intended to displace the rules of common law and equity which otherwise would apply to services contracts. Although these rules include those developed in respect of restraints of trade there is nothing in s 3(2) or any other provision of the IC Act which indicates that the Act’s own regime for the review of a services contract in Pt 3 may operate only in respect of a contract or provision of a contract the validity of which is not in question by reason of the rules of common law and equity.

The rules of common law and equity are wide ranging. They cover contract formation, validity, construction, enforceability and termination. Any one or more of these rules may be engaged in respect of a particular contract. The grounds of alleged unfairness or harshness under Pt 3 of the IC Act (Pt 3) may or may not be co-extensive with the common law cause of action or equitable rights or obligations. A party seeking review under Pt 3 is not bound to fail in claiming a contract is unfair or harsh if the party cannot establish that the contract or provision of the contract is void or unenforceable by reason of some common law cause of action or equitable right or duty. So too a party which can establish that a contract or provision of the contract is void or unenforceable by reason of some common law cause of action or equitable right or duty is not bound to prosecute those claims alone or in advance of a claim under Pt 3 of the IC Act; such a party may choose to claim relief under Pt 3 whether or not the party may also have available other claims at common law or in equity. It must follow from these propositions that it cannot be correct to accept Candle’s proposition that a provision of a contract which is void as an unreasonable restraint of trade cannot also be unfair or found a conclusion of unfairness within Pt 3 of the IC Act.
Other submissions by Candle should also be considered. Candle also proposed, by way of corollary, that a provision of a contract which constitutes a reasonable restraint of trade and, thereby, is not void cannot also be unfair or found a conclusion of unfairness within Pt 3. Such a provision, said Candle, is reasonable as between the parties and not contrary to public policy. Accordingly, as Candle put it, it would be inconsistent with the objects of the IC Act to conclude that a restraint of trade that was otherwise valid and enforceable was nevertheless unfair or harsh. Candle also proposed, either as part of this submission or in the alternative, that the fact a restraint of trade had been found to be valid and enforceable, being reasonable as between the parties and not contrary to public policy, would be relevant to the question whether the contract or any part of it is unfair or harsh.
We do not doubt that if any particular review application under Pt 3 is associated with or calls for consideration of a rule of common law or equity affecting the validity, terms or enforceability of a contract, that rule of common law or equity may or most likely would be a relevant consideration in determining whether the contract is unfair or harsh. As noted, s 15(1)(d) provides that in reviewing a services contract the Court may have regard to “any other matter that the Court thinks is relevant”. In the case of a contract which contains a restraint of trade the validity or otherwise of the restraint may be relevant but, in our view, is not necessarily determinative of the outcome of the review.
It will be apparent that Candle’s approach to a contract containing a restraint of trade has the same consequence whether the restraint is valid or invalid. Either way it is said that there can be no finding of unfairness or harshness based on the restraint. If invalid, the restraint does not exist and thus cannot be said to be unfair or harsh. If valid, the restraint exists and is enforceable and, by definition, is not unfair or harsh. We are unable to find support for these propositions in the IC Act. It is apparent that the IC Act recognises that the rules of common law and equity include rules where a contract is against the public interest (see s 9(1)(d) which describes this as an unfairness ground for the purpose of excluding the operation of State and Territory laws), such as unreasonable restraints of trade. Pt 3 operates to the exclusion of State and Territory laws in relation to unfairness grounds for services contracts including, by s 9(1)(d), contracts against public policy. It must follow that the IC Act contemplates that a services contract which may be against public policy in whole or in part is nevertheless reviewable under Pt 3 on the grounds of unfairness or harshness. Insofar as Candle’s submissions in this regard relied on s 3(2) the section cannot be read as dictating the outcome of any review under Pt 3 by reason of the rules of common law and equity. Those rules are preserved and may well be relevant to a review under Pt 3 but that review is to be conducted on its own terms and within the framework established by the provisions of Pt 3 itself. It is also apparent that it is not only the rules of common law and equity that are preserved. Subsections 3(2)(b) and (c) refer to the rights of parties to a services contract being governed by the terms of the contract, subject also to the laws of the Commonwealth and the laws of the States and Territories (the latter as not otherwise excluded). The laws of the Commonwealth include the IC Act itself. The fact that the rules of common law and equity appear in subpara (a) of s 3(2) does not indicate that the effect of the operation of those rules on a contract necessarily must be determined in advance of a claim under a law of the Commonwealth including under Pt 3. The appropriate resolution of each case will depend upon the circumstances of the case including the claims advanced by the parties for resolution.
By s 12(3) of the IC Act, in reviewing a services contract, the Court must only have regard to the terms of the contract when made and (to the extent permissible under Pt 3) “other matters existing at the time when the contract was made”. The preamble to s 12(3)(b) (“to the extent that this Part allows the Court to consider other matters”) is a reference to the matters specified in s 15(1)(a) to (d) of the IC Act: see further at [144] below. It follows that “any other matter that the Court thinks is relevant” as referred to in s 15(1)(d) is limited to a matter that existed at the time the contract was made. Contracts which were not unfair or harsh at inception, accordingly, cannot become unfair or harsh within the meaning of Pt 3 by reason of circumstances coming into existence after the contract was made. Of course, a “matter existing at the time when the contract was made” may include the existence of any fact, matter or circumstance whether or not known to the parties or either of them. It may also include an existing state of mind, such as a belief or contemplation, held by the parties or either of them including a state of mind, such as a belief or contemplation, about the future. The criterion of reference of “other matters as existing at the time when the contract was made” is sufficiently broad to encompass all potentially relevant facts and circumstances existing at that time. We deal further with the scope of s 12(3) at [188] – [189].
No knowledge of cll 7.2 and 7.3
In the present case, the Candle contract, to which Mrs Menano-Pires and Informax were parties, contained a restraint of trade clause as between Mrs Menano-Pires, Informax and Candle. Clause 4.4 provided for a six month restraint after termination of the Candle contract preventing Mrs Menano-Pires and Informax working for or otherwise being engaged by the Client (Woolworths) without Candle’s consent in writing. However, at the time Mrs Menano-Pires and Informax entered into the Candle contract, Candle had already entered into the Candle-Woolworths contract. Candle knew or must have known that the Candle-Woolworths contract included cl 7.2 which imposed mutual obligations on Candle and Woolworths not to employ or retain a person who is or has been a Representative of the other party without the written consent of the other party. By cl 7.3 of the Candle-Woolworths contract this mutual obligation commenced on the date the Representative became directly involved in the provision of the Services and ended 12 months after the cessation of this direct involvement. Representative is defined as including an employee and a contractor or sub-contractor. By entering into the Candle contract Mrs Menano-Pires became a Representative within the meaning of the Candle-Woolworths contract on each occasion she became directly involved in the provision of services to Woolworths. Mrs Menano-Pires’ status as a Representative in respect of whom Candle and Woolworths owed mutual obligations under the Candle-Woolworths contract by operation of cll 7.2 and 7.3 occurred without her knowledge or consent.
The fact that Mrs Menano-Pires and Informax were parties to the Candle contract and not parties to the Candle-Woolworths contract creates an important difference between the two contracts for the purpose of legal analysis. Not being parties to the Candle-Woolworths contract, Mrs Menano-Pires and Informax could not apply for its review under Pt 3 of the IC Act. Their application for review under Pt 3 was thus limited to the Candle contract to which they were parties. In circumstances where Mrs Menano-Pires and Informax pleaded that cl 4.4 of the Candle contract was both unfair and/or void as an unlawful restraint of trade, it was appropriate in considering the matters to which s 12(3) and s 15(1) of the IC Act direct attention to take into account the restraint of trade doctrine and its effect on the contract in issue between the parties. The IC Act, as noted, preserves the rules of common law and equity (s 3(2)(a)). In a case such as the present it is difficult to contemplate how sensible and effective relief under the IC Act could be granted without regard to the proper scope, operation and effect of the contract.
The restraint in the Candle-Woolworths contract stands in a different position. It was a relevant matter arising at the time when the Candle contract was made within s 12(3)(b) of the IC Act. The Candle-Woolworths contract needs to be considered according to its terms and not after the application of the restraint of trade doctrine. It is true that the primary judge was required to consider the validity of the Candle-Woolworths restraint by reference to the restraint of trade doctrine. This came about for a number of reasons, the most important of which appears to be the claim by Informax and Ms Menano-Pires that Candle’s conduct towards Woolworths between 17 September 2008 and 1 October 2008 involved a contravention of s 52 of the Trade Practices Act 1974 (Cth).
The need to consider the Candle-Woolworths restraint according to its terms for the purposes of the review of the Candle contract under Pt 3 of the IC Act results from a number of circumstances.
First, Woolworths was not a party to the proceeding before the primary judge and, as far as is known, neither Candle nor Woolworths has ever suggested that the Candle-Woolworths restraint is other than a valid and effective restraint. Candle has argued strongly in this proceeding that that is the case. It may be assumed that at the time of the Candle contract, Candle and Woolworths intended to abide by the Candle-Woolworths restraint. While the state of mind of the contracting parties cannot be determinative of the reasonableness of the restraint (as considerations of public policy are involved) it may be inferred that, at the time the Candle contract was made, Candle and Woolworths shared an assumption that cll 7.2 and 7.3 of the Candle-Woolworths contract were valid and would regulate their mutual dealings with each other’s Representatives. This inferred shared assumption is itself a matter existing at the time the Candle contract was made.
Second, cll 7.2 and 7.3 of the Candle-Woolworths contract in the terms in which they appear are matters existing at the time the Candle contract was made.
Third, validity or invalidity of cl 4.4 of the Candle contract cannot affect the presence of cll 7.2 and 7.3 in the Candle-Woolworths contract.
Further, that Candle was a party to the Candle-Woolworths contract and thus must have known of the terms of cll 7.2 and 7.3 of that contract (and that on becoming directly involved in providing services to Woolworths, Mrs Menano-Pires would become a Representative in respect of whom Candle and Woolworths owed each other mutual non-employment obligations for 12 months) are all matters existing at the time the Candle contract was made. That Mrs Menano-Pires had no knowledge of cll 7.2 and 7.3 of the Candle-Woolworths contract (a fact found by the primary judge and not challenged on appeal) also constitutes a matter existing at the time the Candle contract was made. These matters are all relevant to the review of the Candle contract under Pt 3 within the meaning of s 15(1)(d).
The primary judge’s application of the restraint of trade doctrine meant that he concluded that cl 4.4 of the Candle contract was void. Our analysis (at [65]-[102] below) results in a conclusion that the restraint in cl 4.4 was valid and effective for a period of four weeks. Either way, Candle was not able to prevent Informax from working for Woolworths between 17 September 2008 and 1 October 2008 by reason of the Candle contract. However, by reason of cl 7.2 of the Candle-Woolworths contract, Candle was able to prevent Informax from working for Woolworths during this period. As the primary judge said, given that Mrs Menano-Pires did not know of cl 7.2 of the Candle-Woolworths contract, this was a “one-sided state of affairs” and one which should be characterised as “unfair” within the meaning of s 12(1) of the IC Act. The fact that the Candle-Woolworths restraint was for a longer period than the restraint in the Candle contract is crucial to this conclusion of unfairness.
If, contrary to the conclusion set out above, it is appropriate to consider both restraints before the application of the restraint of trade doctrine, then although there would be unfairness in not disclosing a restraint which was twice as long as the restraint contained in the Candle contract, there would be a difficulty in granting any relief because Candle’s conduct between 17 September 2008 and 1 October 2008 was within the period of the restraint in the Candle contract. Further, and also if contrary to the conclusion set out above, it was appropriate to consider both restraints after the application of the restraint of trade doctrine and both were for the same period (i.e., four weeks) then it is difficult to conclude that the non-disclosure by Candle of a restraint that placed no additional burden or disadvantage on Informax or Ms Menano-Pires than that of which they were aware was unfair.
In accordance with s 15(3) the Court must record its opinion if it forms the opinion that a ground referred to in s 12(1) is established, stating whether the opinion relates to the whole or a specified part of the contract. Because the issue is one of failure to disclose a relevant matter in the Candle contract, being the existence and terms of the restraint in the Woolworths-Candle contract for a period exceeding the four weeks which we consider a valid restraint under the Candle contract, the opinion of unfairness relates to the Candle contract as a whole.
For these reasons ground 9 of Candle’s cross-appeal, alleging that the primary judge erred by considering unfairness by reference to the existence of cl 7.2 of the Candle-Woolworths contract, must be dismissed. The primary judge was required to consider whether there were any matters relevant to the question of unfairness under s 15(1)(d). By s 12(3)(b) the primary judge was entitled to consider the provisions of the Candle-Woolworths contract as those provisions were matters existing at the time the contract was made.
Cl 4.4 not conditional
Mrs Menano-Pires and Informax relied on the primary judge’s finding at [39] in the first judgment that:
…after she started in March 2007, it became rapidly apparent that Candle had very little to do with the placement of Mrs Menano-Pires into further project management roles within Woolworths. After her initial placement by Candle on the centralised fuel price management project, it was Mrs Menano-Pires who thereafter procured her successive placements on other projects. As she came to the end of each project, it was Mrs Menano-Pires who was able to find, or was approached internally by Woolworths’ managers to work on, further projects. All of this she did by herself. Although Candle, from time to time, extended her contract with it to facilitate her continuing to work for Woolworths on these various fresh projects, it is apparent this was always as a response to steps which had already been taken by Mrs Menano-Pires to procure actual work inside Woolworths.
This caused Mrs Menano-Pires and Informax to contend that after the conclusion of the initial Candle contract on 1 June 2007 it was unfair for the three extended contracts (also referred to above as the Candle contract) to contain the restraint in cl 4.4 without a qualification that cl 4.4 had effect only if Candle had made real and consistent efforts to secure ongoing work for Mrs Menano-Pires and Informax. In effect, Mrs Menano-Pires and Informax submitted that it was unfair when the extended Candle contracts were made for cl 4.4 not to be subject to Candle complying with its obligation in cl 5.1 (that “Candle shall use all commercially reasonable efforts to promote the services of the Contractor to the Client during the term of this Agreement to the mutual benefit of the parties”). The matter founding unfairness at the time of the extensions was said to be the common knowledge of the parties at those times that “it was Mrs Menano-Pires who thereafter procured her successive placements on other projects” not Candle.
It may be accepted that, at the time of each extension, it was Mrs Menano-Pires who had secured the further work at Woolworths to the mutual benefit of herself, Informax and Candle and not Candle. It may also be accepted that Mrs Menano-Pires, Informax and Candle each knew this to be the case at the time of the extensions of the Candle contract. Both this fact and the parties’ knowledge of it are matters which existed at the time the Candle contract was made within the meaning of s 12(3)(b) of the IC Act. Accordingly, they are matters capable of being thought relevant as provided for in s 15(1)(d) of the IC Act. The difficulty with the submission for Mrs Menano-Pires and Informax is that it appears to depend not only on the fact that Mrs Menano-Pires had secured the further work leading to the particular extension but also hindsight that this would be so for all subsequent extensions. If neither party anticipated at the time of each extension that it would necessarily be Mrs Menano-Pires who secured further work for herself from Woolworths during the extended term, then it is difficult to see any unfairness in cl 4.4 not being subject to a condition that Candle comply with cl 5.1 or an obligation to similar effect. It is not apparent that the parties held any such anticipation. To the contrary the submission is based on the hindsight knowledge that in fact Mrs Menano-Pires always secured the further work leading to the three extensions. Hindsight of that kind is excluded by s 12(3)(b) and thus can never be a relevant matter to the question of unfairness in s 15(1)(d) of the IC Act.
There are other difficulties with the submission. The parties to the Candle contract as extended knew at the time of each extension that Mrs Menano-Pires had secured the work leading to the extension. There is no suggestion that Mrs Menano-Pires and Informax were in a substantially weaker bargaining position than Candle in respect of the extensions (see s 15(1)(a) of the IC Act). It might be thought, to the contrary, that the fact that Mrs Menano-Pires had secured the work leading to the extension increased the strength of her bargaining position. There is no evidence of any undue influence, pressure or unfair tactics used by Candle against Mrs Menano-Pires and Informax at the time of any extension (see s 15(1)(b)). Again, to the contrary, it seems that all three parties were content for the Candle contract simply to roll over for a new term without any negotiation at all about the terms. There is no suggestion in the evidence that the total remuneration paid to Mrs Menano-Pires was less than that of an employee performing similar work (see s 15(1)(c) of the IC Act). All there is at the time of each extension is the fact that it was Mrs Menano-Pires who had secured the work leading to the extension rather than Candle. It is difficult to see any unfairness in the extensions of the Candle contract merely because they did not contain a condition making cl 4.4 subject to Candle complying with cl 5.1 (or some such similar obligation).
Cl 4.4 and cll 7.2 and 7.3 as restraints of trade

There is one further matter of some importance to the proper construction of s 16(4) of the IC Act, which requires elaboration by reference to the origins of that provision (s 127B(4) of the IR Act) and the jurisdiction and practice of the authority (the AIRC) in which the power to make orders of the kind contemplated by the provision were first reposed.
The functions of the AIRC and its predecessors involved the creation of new rights and obligations by the exercise of arbitral power to settle an industrial dispute. However, it has long been recognised that in performing that function, the AIRC was empowered to resolve a dispute relating to past transactions, events and conduct: Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers’ Union of Australia (1987) 163 CLR 656 (at 663).
It has long been the practice of industrial tribunals to make awards and other industrial agreements which impose a prospective duty or obligation on a person (usually an employer) by reference to past transactions or events. The most common example is an award which requires back-payment of wages for work which had already been performed prior to the making of the award.
The validity of an award which required the payment of additional wages in respect of work which had been performed prior to the making of the award was first tested in the High Court in Federated Engine-Drivers’ and Firemen’s Association of Australasia v Adelaide Chemical and Fertilizer Co Ltd (1920-21) 28 CLR 1 (Federated Engine-Drivers’). At the time, s 28 of the Commonwealth Conciliation and Arbitration Act 1904-1915 (Cth) (the C&A Act) relevantly provided that an award was to:
…continue in force for a period to be specified in the award, not exceeding five years from the date of the award.
The High Court considered the power conferred by the C&A Act upon the Commonwealth Court of Conciliation and Arbitration to settle an industrial dispute. It was recognised by Knox CJ, Gavan Duffy and Starke JJ (at 10) that past conditions or rates of wages may be the subject of demands and that the time taken to resolve a dispute may of itself delay the making of an award and that consequentially, the power to “deal with these conditions and rates as to a time past” was required if an industrial dispute was to be settled as the C&A Act apparently contemplated. Knox CJ, Gavan Duffy and Starke JJ continued:
But sec. 28 must be considered. In sub-sec. 1 it is provided that the award is to continue in force for a period to be specified in the award, not exceeding five years from the date of the award; and it is said that an award for a specified period must necessarily look only to future conditions and rates, or its prescribed term will be exceeded. The argument cannot be supported. The provisions of sec. 28 of the Act prescribe the period during which the award, when made, shall be operative, but do not restrict its operation to questions arising out of the relations of the parties during that period. The fact that the award makes some provision in respect of matters arising before the date of the award does not extend its duration. The award operates during the period therein specified, and neither before nor afterwards, subject, of course, to the provisions of sec. 28 (2). If the award prescribes a payment in respect of wages for work done prior to the award, the duty of obedience arises in the specified period and neither before nor afterwards. It is a mistaken notion that persons on whom rests the duty of obedience to the award have committed an offence or breach of the award because the conditions or wages in respect of a period anterior to the award were not observed or paid during that period. The duty of obedience arises only upon the making of the award, and continues during the specified period.
[emphasis added]
The plurality in Federated Engine-Drivers’ drew a distinction between the time at which the rights and obligations arising under or conferred by an award take force, and the period upon which the award may operate. That construction was arrived at including by reference to the purpose of the scheme of which s 28 formed part.
Federated Engine-Drivers’ was relied upon in Telegraph Newspaper Co Pty Ltd v Australian Journalists’ Association (1962) 3 FLR 39 in relation to an agreement deemed by the C&A Act to be an award. The agreement had been varied to increase rates of pay in relation to work performed during a period which predated the making of the variation. The issue before the Commonwealth Industrial Court was whether an employee no longer employed at the time of the variation was nevertheless entitled to back-payment of wages at the increased rate of pay. The Commonwealth Industrial Court held that the employee was so entitled. At 41, Spicer CJ, Dunphy and Joske JJ said:
An agreement, therefore, is in the same position as an award and may be varied, and varied retrospectively (R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte North Melbourne Electric Tramways and Lighting Co. Ltd). A retrospective award may be made in respect of matters which were in issue in the dispute and can be made as to any period covered by the actual dispute; and it may order payment in respect of work done after the point of time when as a fact the industrial dispute began and before the award is made (Federated Engine-drivers' and Firemen's Association of Australasia v. Adelaide Chemical and Fertilizer Co. Ltd).
[Footnotes omitted]
In Standish v University of Tasmania (1988) 26 IR 342, Northrop J considered s 57 of the C&A Act which, by that time, was the provision in the C&A Act dealing with when an award shall “have effect”. Section 57 provided:
An award of the Commission constituted by a single member of the Commission shall not, unless all parties to the industrial dispute who appear or are represented before the Commission consent or the Commission otherwise directs, have effect until after the expiration of 28 days from the date of the award.
The award in question had a stated operative date which predated the date on which it was made. Northrop J acknowledged that Federation Engine Drivers’ was authority for the proposition that an award could be made “with effect from a date prior to the making of the award” (at 345) and that in the period between the stated operative date and the date of its making, the award in question was “in operation” but that “it would not give rise to duties and obligations until after it was made” (at 346).
It is apparent then that at the time ss 127A-127C were introduced into the IR Act, there was a well-recognised and long standing capacity for the AIRC (and its predecessors) to create new rights and obligations by reference to past events or transactions but with only prospective operation (in the sense that those rights and obligations had no force or effect prior to the making of the order which created them).
The second judgment and the grounds of appeal
In the second judgment at [20], the primary judge concluded that s 16(4) of the IC Act does not permit the Court to vary a contract with “retrospective effect”. The manner in which the primary judge reasoned to that conclusion is summarised at sub-paragraphs (1)-(3) of [39] above. As a result, the primary judge concluded that he lacked the power to amend the order he made on 29 March 2011 so as to bring about, from the commencement of the Candle contract, the inclusion into the contract of cll 14 and 15. Clauses 14 and 15 are set out at [37] above.
That conclusion, that the Court lacked the power to bring about the variation of the Candle contract from the time it was made, is challenged by ground 4 of Informax’s grounds of appeal. For reasons which we will explain, ground 4 should be dismissed, despite there being aspects of the primary judge’s reasoning with which we respectfully disagree. It follows that a number of the other grounds of appeal (grounds 1, 2, 8, 9 and 10) should also be dismissed. Those grounds raise related issues but their determination is of no consequence given the conclusion we have reached that the primary judge was correct to conclude that the Court lacked the power to bring about a contractual variation from the commencement of the Candle contract.
The reasoning of the primary judge which led to the judge rejecting the insertion of an alternative clause relied upon by Informax and contained in prayer 3A of the proposed Second Further Amended Application and Mrs Menano-Pires is summarised at sub-paragraphs (4)-(8) of [39] above. The terms of prayer 3A are set out in sub-paragraph (3) of [38] above.
Relying upon the terms of s 16(4) and related provisions in Pt 3, the primary judge concluded that the IC Act “is concerned with the prospective remediation of unfair or harsh contracts” and that it would be impermissible for the Court to make orders which provided relief by reference to the manner in which the contract had operated in the past. The primary judge concluded that ss 12(3) and 16(4) “operate as a bar on the consideration of events” falling between the inception of the contract and the making of the Court’s orders (at [51]).
Those conclusions and their consequences are challenged by grounds 3, 5, 6 and 7 of Informax and Mrs Menano-Pires’ grounds of appeal. For reasons we will explain, although we agree with the primary judge’s ultimate conclusion that an order which varied the Candle contract in terms of prayer 3A should not have been made, we respectfully disagree with aspects of the primary judge’s reasoning leading to that conclusion. Given that grounds 3, 5, 6 and 7 of the grounds relied upon by Informax and Mrs Menano-Pires are all ultimately directed at the primary judge’s refusal to order a variation in terms of prayer 3A, each of those grounds should also be dismissed.
The proper construction of s 16(4)
The proper construction of s 16(4) of the IC Act is central to all of the issues raised in relation to the second judgment.
Our task of statutory construction must focus on the text of s 16(4), but the meaning of that text will require consideration of the purpose and policy of the provision in the context of the IC Act as a whole. As French CJ, Gummow, Hayne, Kiefel and Bell JJ said in AB v Western Australia (2011) 244 CLR 390; [2011] HCA 42 (at [10]) (by reference to the observations of Dixon CJ in Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 (at 397)), the context, general purpose, policy and fairness of a statutory provision are guides to its meaning. Their Honours continued:
The modern approach to statutory interpretation uses "context" in its widest sense, to include the existing state of the law and the mischief to which the legislation is addressed. Judicial decisions which preceded the Act may be relevant in this sense, but the task remains one of the construction of the Act.
[footnotes omitted]
We recognise, as the Full Federal Court did in Gerrard (at 506) in relation to ss 127A-127C of the IR Act, that the legislation we are dealing with is of a remedial and beneficial kind. In that circumstance, the terms of the legislative provisions in question should be given “a fair and liberal interpretation in order that they achieve the Act’s beneficial purposes”: AB v Western Australia (at [38]). The approach that should be taken to the construction question is one that gives effect to the evident purpose of the legislation and is consistent with its terms: AB v Western Australia (at [23]).
It is perhaps best to commence our consideration of the primary judge’s conclusion that the terms of s 16(4) of the IC Act preclude the making of a “retrospective” order, by saying (as Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ said at [25] of Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270; [2000] HCA 30 (Australasian Memory)), that the terms “prospective” and “retrospective” are terms that are sometimes used in different senses. In the context of this case, these are terms which are better avoided unless the sense in which the terms are used is clearly identified.
We consider it unhelpful to construe the scheme of Pt 3 of the IC Act by reference to the question of whether or not it is a scheme which precludes the making of a “retrospective” order. A far more helpful question is whether the scheme of Part 3 allows for the unfairness or harshness of a contract to be remedied from the time it was made or, alternatively, only from the time at which the Court makes its order.
Section 16(4) of the IC Act deals with when an order “takes effect”. Of and by itself, s 16(4) does not provide an answer to the question of the remedial scope of a permissible order. To answer that question, it is necessary to consider the scheme more generally, commencing as we will with the subject matter with which an order may deal.
Section 16(4) may well say something about the subject matter with which an order may deal. However, that issue is dealt with more directly by s 16(1) which identifies that by its order, the Court may either set aside the contract, in whole or in part, or vary it. What an order may deal with is also illuminated by s 16(2) which sets out the purpose for which an order may be made. An order may only be made “for the purpose of placing the parties to the services contract as nearly as practicable on such a footing that the ground on which the opinion is based no longer applies”.
Section 15(3) makes it clear that the “opinion” referred to in s 16(2) is the Court’s opinion that a ground referred to in s 12(1) is established. That is, that having reviewed the contract, the Court is of the opinion that the contract is unfair, is harsh or is both unfair and harsh. In the review required by s 12(1), s 12(3) demands that the Court only have regard to:
(i) the terms of the contract when it was made; and
(ii)other matters (those set out in s 15(1)) as existing at the time when the contract was made.
In construing the scheme provided by Pt 3, and in particular the remedial scope of the orders that may be made, the primary judge placed much weight on the terms of s 12(3) and its requirement that the opinion which may be formed as to unfairness or harshness may only be formed by reference to the terms of the contract when made and not by reference to any unfairness or harshness experienced in the operation of the contract during its term ([49]-[51] of the second judgment).
The primary judge drew a distinction between unfairness found in the terms of the contract when made and unfairness in the actual operation of the contract. The primary judge concluded, and we agree, that the scheme of Pt 3 is only concerned to remedy unfairness in the contract as existing when the contract was made. The terms of ss 12(1) and 12(3) and the Supplementary Explanatory Memorandum to the 2006 Bill at [26]-[27] (see [143] above) make that clear. However, to look at the terms of a contract when made and consider whether the contract is unfair is an exercise in which the Court considers whether the terms of the contract (and the s 15(1) circumstances existing at the time it was made) demonstrate a potential for the contract to operate unfairly. It is by reference to the potential of the contract to operate unfairly and/or harshly that the Court forms an opinion as to whether the ground of unfairness or harshness referred to in s 12(1) is established.
Largely by reference to the terms of s 12(3), the primary judge reasoned at [50] that because the scheme was limited to addressing unfairness in the contract rather than unfairness in the way the contract actually operated, s 16(4) was to be construed as “similarly limited” in that it was available to cure the unfairness in the contract and not the unfairness actually experienced as the result of its operation. On that premise, the primary judge concluded at [51] that Pt 3 is only concerned with “prospective remediation of unfair or harsh contracts”. It is not absolutely clear what the primary judge meant by “prospective remediation”. Insofar as he meant that the remedial scope of the scheme is limited to only addressing the potential for future unfairness in the operation of the contract, we would respectfully disagree.
It does not follow from the fact that the scheme was designed to deal with the potential for a contract to operate unfairly (rather than its actual unfairness in operation) that Parliament intended that the available remedy should be limited to addressing the potential for future unfairness as and from the date of any remedial order. It is far more likely that a scheme which requires that the mischief it seeks to rectify be identified at its source (ie when the contract was made) intends that the mischief be remedied from its source (ie from when the contract was made). There are a number of matters which support that conclusion.
To construe the scheme as being confined to only addressing the potential for future unfairness in the period which post-dates the order of the Court would render the scheme almost entirely inapplicable to contracts which have been terminated. It is difficult to reconcile that outcome with Dingjan and Gerrard and the fact that the scheme considered by those authorities has been essentially re-enacted.
In the first judgment at [146]-[150], the primary judge rejected Candle’s contention that s 12(1) of the IC Act did not apply to terminated contracts. That finding is not challenged and in our view it is plainly correct. The language utilised in Pt 3 of the IC Act is, for relevant purposes, not materially different to that utilised by ss 127A and 127B of the IR Act which both Dingjan and Gerrard (and the case law which has applied those decisions) interpreted as applying to terminated contracts. It is unlikely that Parliament enacted Pt 3 of the IC Act without an awareness of the judicially accepted interpretation placed on ss 127A and 127B and, with that awareness, utilised the same language despite having an intent that the accepted understanding associated with that language be overridden: Electrolux Home Products Pty Ltd v The Australian Workers’ Union (2004) 221 CLR 309; [2004] HCA 40 (at [8] Gleeson CJ; [62] McHugh J; [162] Gummow, Hayne and Heydon JJ); Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96 (at 106 Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).
We recognise that some obligations imposed by a contract can survive beyond its termination. However, the case law on ss 127A and 127B denies any suggestion that the scope of those provisions to deal with terminated contracts was confined to the very limited class of contractual provisions which survive termination. The nature and extent of surviving provisions is so limited that it is unlikely that the continued applicability of the scheme provided by Pt 3 of the IC Act to terminated contracts was founded upon such a narrow remedial objective.
Further, it is abundantly clear that all of the decided cases dealing with ss 127A and 127B – Transport Workers Union, Finemores, Harding and Buchmueller – were resolved by the making of orders which were not focused upon nor confined to the remediation of future unfairness as and from the date of the making of the orders therein made. The primary judge sought to distinguish those authorities on the basis that the scheme then in place did not contain the equivalent limitation to that found in s 12(3) of the IC Act. For the reasons set out at [143], s 12(3) is not a new limitation and does not provide a basis for the distinction which the primary judge drew. As we earlier stated at [142], despite the comprehensive review of the federal scheme which proceeded the enactment of the IC Act, no concern about the nature, form or remedial scope of orders made pursuant to the former s 127B(4) is apparent from the Explanatory Memoranda to the 2006 Bill. Neither the inclusion of s 12(3) nor any other matter supports the contention that the manner in which the scheme had operated in relation to the making of orders and the scope of the remedial relief provided was intended to be radically altered upon the enactment of the IC Act.

Furthermore, to construe the scheme as limited to the remediation of future unfairness may lead to capricious results, at least in relation to applications dealing with extant contracts. On that construction, every day that it takes for a pending application to be determined, is a day for which a remedy is denied. While s 16(3) provides for the making of interim orders, it seems unlikely that Parliament intended that the utility of the final relief the Court could grant would substantially depend upon the time taken to commence, conduct and determine an application.
It was contended by Candle that the terms of s 16(2) support a construction that the scheme was limited to the making of remedial orders confined to addressing future unfairness. The argument relied upon the words “no longer applies”. The use of the present tense was said by Candle to emphasise that only a “prospective remediation” from the date of an order was intended. Whilst that contention has some initial attraction, the tense utilised does not really assist in answering what is to no longer apply. Is it the potential for unfairness from the outset of the contract or that potential as and from the date upon which an order is made? The answer to that question requires an examination of “the ground” to which s 16(2) refers and which is to no longer apply. That ground, as we have said, is identified by ss 12(1) and 12(3) as the potential for unfairness as at the time the contract was made. Further, when the Explanatory Memorandum to the 1992 Bill explained the predecessor provision to s 16(2) (see [112] above), it gave its purpose as that of “redressing” (as distinct from addressing) the unfairness found in the contract.
In our view (and utilising the words employed by the Explanatory Memorandum to the 1992 Bill), s 16(4) orders “may only be prospective in operation”. That does not mean that such orders may not have a remedial effect on events or transactions which predate the date upon which an order is made. It does mean that any order made may not give rise to any duty, obligation or liability which operates or has force from a time prior to the making of the order. That construction is consistent with the text of s 16(4) and the plain meaning of the words “takes effect”. The construction is also supported by the legislative history of s 16(4) and the fact that when s 127B(4) of the IR Act was first enacted, the AIRC had an accepted capacity to make awards which operated prospectively but whose remedial scope extended to the remediation of events or transactions which pre-dated the date of the award.
Whilst we accept that the words of s 16(4) include a temporal requirement, that requirement does not “…preclude the making of an order with future effect but in respect of past matters or events”: Australasian Memory at [26] (Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ).
The construction we prefer gives effect to the evident purpose of Pt 3 and is consistent with its terms.
On that construction and on the facts of this case, it was open for Informax to have sought, and for the Court to have made, an order which varied the contract between Informax and Candle which had a remedial scope dating back to the contract’s formation but an operative effect from the date of the Court’s order.
In the context of there having been no disclosure to Mrs Menano-Pires of cl 7.2 of the Candle-Woolworths contract, the unfairness which the primary judge found in the Candle contract was the failure of the contract to protect Informax by prohibiting Candle from preventing Woolworths from employing Mrs Menano-Pires at a time when the Candle contract no longer restrained Informax or Mrs Menano-Pires from working with Woolworths (see at [145] of the first judgment). That potential for unfairness could have been remedied at and from its source by an order which varied the Candle contract as and from the date of the making of the order, by including a term in the Candle contract to the effect that Candle would be liable for any loss or damage suffered by Informax or Mrs Menano-Pires resulting from such conduct (ie conduct by Candle which had the effect of preventing Informax and Mrs Menano-Pires from working for Woolworths at a time when the Candle contract no longer restrained Informax and Mrs Menano-Pires from doing so).
Such a variation would not have varied the contract from a date earlier than the date upon which the order was made. The order would not have given rise to any duty, obligation or liability upon Candle which operated or had force from a time prior to the making of the order. It would in that respect have satisfied the requirement of s 16(4) that the order not take effect prior to the date upon which it was made. The order, however, would have redressed (from the time that the contract was made) the potential in the Candle contract to unfairly impose loss or damage upon Informax and Mrs Menano-Pires by providing a basis for any such loss or damage to be negated. If it were necessary, a suit for breach in the accrued jurisdiction of the Court could have been entertained (see the reasons given by the primary judge at [53] of the second judgment). Such an order for the variation of the Candle contract would thereby have placed Candle and Informax, as nearly as practicable, on such a footing that the potential for unfairness in the contract when made, no longer had application.
The difficulty for Informax is that even if its Further Amended Application did seek relief of that kind (and arguably prayer 3(b)(ii) did), any refusal by the primary judge to grant such relief is not the subject of this appeal. The relief Informax seeks on this appeal is a variation to the Candle contract which is to have operative effect from a time which predates the making of the orders to be made. The inclusion into the Candle contract of cll 14 and 15 from the date that the Candle contract was made would impose upon Candle duties, obligations or liabilities which would operate from a time prior to the making of the order granting that relief. For the reasons we have explained, s 16(4) does not permit the making of an order of that kind.
The alternative relief sought by Informax from the primary judge, and on the appeal, depended on the variation of the Candle contract by the inclusion of the term set out in prayer 3A. As the primary judge identified at [44] of the second judgment and as Candle contended on the appeal, the difficulty with prayer 3A is that it is premised upon the variation of the Candle contract by the inclusion of cll 14 and 15 from the date of the commencement of the contract. No such variation was made nor, for the reasons we have explained, is such a variation possible. It follows that there can be no utility in the variation sought by prayer 3A and that no relief directed to that end should be granted on the appeal.
We should comment upon one aspect of the primary judge’s reasoning for rejecting prayer 3A with which we respectfully disagree. The primary judge observed that through prayer 3A, Informax sought compensation by reference to facts and circumstances that Pt 3 excludes from consideration. He concluded at [51] of the second judgment that the Court was barred from taking into account facts and circumstances which occurred in the “forbidden area lying between the moment of the contract’s inception and the making of the Court’s orders”. However, in our view the fact that the review required by s 12(1) of the IC Act is a review directed to unfairness in the contract, and not unfairness in the actual operation of the contract, does not lead to the conclusion that facts and circumstances which arose after the contract was made are barred from consideration by the Court for all purposes, including the formulation of relief.
First, s 12(3) identifies the subject matter which the Court may have regard to and not the evidence that may be relevant to a consideration of that subject matter. It is not to be supposed, for example, that a review of the terms of a contract is to be conducted without evidence which may help to determine the intended meaning of those terms. Further, given that the nature of the exercise required by s 12(1) is to consider whether the terms of the contract demonstrate a potential for the contract to operate unfairly, evidence as to how the contract operated in practice may shed light on that potential. That kind of evidence may also be relevant to the limited subject matters that the Court may have regard to pursuant to s 12(3).
Second, facts and circumstances arising after the contract’s formation may be relevant to the exercise of the discretion conferred by s 16(1) as to whether an order should be made and the extent of the relief which the Court should grant. It is unlikely that the exercise of the Court’s discretion was intended to be circumscribed by the limited subject matters that s 12(3) identifies. In our view, when s 12(3) speaks of the Court “reviewing a services contract” it is not speaking of the entirety of the Court’s task in determining the application before it, but is addressing the more limited task of reviewing a contract for unfairness or harshness in order to consider whether the opinion to which s 15(3) refers is established.
DISPOSITION
Accordingly, we agree with the primary judge that cll 14 and 15 cannot operate from a time prior to the grant of relief. The two reasons the amendment to add prayer 3A was not allowed by the primary judge were that, although prospective in form, the proposed order purported to operate by reference to past events (see [39(5)] above) and the proposed order was based on conduct said to be inconsistent with cll 14 and 15 and those clauses could not operate from a time prior to the grant of relief (see [39(6), (7), (8)] above). We have held that the primary judge erred in relying on the first reason (see [171]-[180] and [187]-[189] above). We have held that the primary judge did not err in relying on the second reason (see [186]). If the matter rested there then the appropriate order in relation to the appeal would be that it be dismissed.
It will be clear from our reasons (at [183]) that there is an order that could have been made and which is not dissimilar to the order contained in prayer 3A and, in general terms, to paragraph 3(b)(ii) of the Further Amended Application dated 2 July 2010. That is the case in a context in which we have upheld the primary judge’s finding of unfairness within s 12(1) of the IC Act and where the primary judge said in his second judgment (at [57]) that he did not discern any real prejudice to Candle by reason of the amendment and that he would have allowed it but for the legal difficulties identified. In these circumstances, it is arguable that even at this late stage Informax and Mrs Menano-Pires should be permitted to amend their notice of motion to claim an order which is within the Court’s power to make. It is true that there appear to be powerful reasons against allowing such an amendment to the notice of motion including the fact that the appeal has been heard and the fact that the Court’s power to remedy any prejudice by an order for costs appears to be limited by s 17 of the IC Act. Nevertheless, in the somewhat unique circumstances of this case, we propose to give Informax and Mrs Menano-Pires the opportunity to apply to this Court to amend their notice of motion to claim an order which is within power. If such an application is made and is successful, the notice of motion will be referred back to the primary judge for hearing and determination in accordance with the reasons of this Court. If it is unsuccessful, then the appeal will be dismissed. In either event, the cross-appeal must be dismissed.
Unless one or both of the parties request an oral hearing before this Court within two days, the Court will determine any such application on the papers. We will make the following orders:
1.Any application by Informax and Mrs Menano-Pires to amend the notice of motion dated 21 April 2011 is to be set out in writing and supported by such submissions as those parties wish to make. Such documents are to be filed and served within seven days.
2.Any submissions in response by Candle are to be filed and served within fourteen days.
3.Any submissions in reply by Informax and Mrs Menano-Pires are to be filed and served within seventeen days.

I certify that the preceding one hundred and ninety-two (192) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Besanko, Jagot and Bromberg.
Associate:
Dated: 20 November 2012

Citation:		Informax International Pty Ltd v Clarius Group Limited [2012] FCAFC 165
Appeal from:		Informax International Pty Ltd v Clarius Group Limited (2011) 192 FCR 210; [2011] FCA 183 Informax International Pty Ltd v Clarius Group Limited (No 2) (2011) 282 ALR 405; [2011] FCA 934
Parties:		INFORMAX INTERNATIONAL PTY LTD and ISABEL MENANO-PIRES v CLARIUS GROUP LIMITED
File number:		NSD 1484 of 2011
Judges:		BESANKO, JAGOT AND BROMBERG JJ
Date of judgment:		20 November 2012
Catchwords:		CONTRACT – whether contract “unfair” within the meaning of the Independent Contractors Act 2006 (Cth) – validity of restraints of trade – relationship between restraints of trade and the Independent Contractors Act 2006 (Cth) CONTRACT – power of Court to make an order varying a contract – time of operative effect of such order – construction of ss 12(3) and 16(4) Independent Contractors Act 2006 (Cth)
Legislation:		Commonwealth Conciliation and Arbitration Act 1904-1915 (Cth) Independent Contractors Act2006 (Cth) Industrial Relations Act 1988 (Cth) Industrial Relations Reform Act 1993 (Cth) Workplace Relations Act 1996 (Cth) Workplace Relations Amendment (Work Choices) Act2005 (Cth) Workplace Relations and Other Legislation Amendment Act 1996 (Cth) Workplace Relations Legislation Amendment (Independent Contractors) Act 2006 (Cth) Industrial Arbitration Act 1940 (NSW) Industrial Relations Act 1991 (NSW) Industrial Relations Act 1996 (NSW) Restraints of Trade Act 1976 (NSW) Federal Court Rules 1979 (Cth) Independent Contractors Bill 2006 (Cth) Industrial Relations Legislation Amendment Bill 1992 (Cth)
Cases cited:		AB v Western Australia (2011) 244 CLR 390; [2011] HCA 42 Adamson v New South Wales Rugby League Ltd (1991) 31 FCR 242 Aerial Taxi Cabs Co-operative Society Ltd v Lee (2000) 102 FCR 125; [2000] FCA 1628 Aerotek, Inc. v Burton 835 So 2d 197 (2001) Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96 Allied Express Transport Pty Ltd v Mears [2010] NSWSC 1112 Aussie Home Loans v X Inc Services (2005) ATPR 42-060; [2005] NSWSC 285 Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270; [2000] HCA 30 Re Becker & Harry M Miller Attractions Pty Ltd (No 2) [1972] AR (NSW) 298 Buchmueller v Allied Express Transport Pty Ltd (1999) 88 IR 465; [1999] FCA 319 Cactus Imaging Pty Ltd v Peters (2006) 71 NSWLR 9; [2006] NSWSC 717 Columbus Medical Services, LLC v Thomas 308 SW 3d 368 (2009) Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 Consultants & Designers, Inc v Butler Service Group, Inc 720 F 2d 1553 (1983) Daley v New South Wales Rugby League Ltd (1995) 78 IR 247 Dalysmith Corporation (Aust) Pty Ltd v Cray Personnel Pty Ltd (unreported, Supreme Court of New South Wales, 14 April 1997) Dickins v Herald and Weekly Times Ltd (1994) 124 ALR 308 Re Dingjan; ex parte Wagner (1995) 183 CLR 323 Electrolux Home Products Pty Ltd v The Australian Workers’ Union (2004) 221 CLR 309; [2004] HCA 40 Esso Petroleum Co. Ltd v Harper’s Garage (Stourport) Ltd [1968] AC 269 Finch v Herald & Weekly Times Ltd (1996) 65 IR 239 Gerrard v Mayne Nickless Ltd (1996) 135 ALR 494 Hanna v OAMPS Insurance Brokers Ltd (2010) 202 IR 420; [2010] NSWCA 267 Hanover Insurance Brokers Ltd v Schapiro [1994] IRLR 82 Harding v Ansvar Australia Insurance (1998) 91 IR 1 Harding v EIG Ansvar Ltd (2000) 95 IR 349; [2000] FCA 46 Herbert Morris Ltd v Saxelby [1916] 1 AC 688 Informax International Pty Ltd v Clarius Group Limited (2011) 192 FCR 210; [2011] FCA 183 Informax International Pty Ltd v Clarius Group Limited(No 2) (2011) 282 ALR 405; [2011] FCA 934 Jordan v Aerial Taxi Cabs Co-operative Society Ltd (2001) 108 IR 263; [2001] FCA 972 Kao, Lee & Yip (a firm) v Koo Hoi-Yan [1995] 1 HKLR 248 Keldote Pty Ltd v Riteway Transport Pty Ltd (2009) 185 IR 155; [2009] FMCA 319 Kores Manufacturing Co Ltd v Kolok Manufacturing Co Ltd [1957] 1 WLR 1012 Kores Manufacturing Co Ltd v Kolok Manufacturing Co Ltd [1959] Ch 108 Lindner v Murdock’s Garage (1950) 83 CLR 628 Office Angels Ltd v Rainer-Thomas [1991] IRLR 214 Papa v Finemores (Print L4930, AIRC, 31 August 1994) Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers’ Union of Australia (1987) 163 CLR 656 Stacks Taree Pty Ltd v Marshall (No 2) [2010] NSWSC 77 Standish v University of Tasmania (1988) 26 IR 342 Telegraph Newspaper Co Pty Ltd v Australian Journalists’ Association (1962) 3 FLR 39 Re Transport Workers Union of Australia (1993) 50 IR 171 Woolworths Ltd v Olson [2004] NSWCA 372
Blake HM “Employee Agreements not to Compete” (1960) 73 Harv L Rev 625 Heydon JD “How Far Can Trial Courts and Intermediate Appellate Courts Develop the Law” (2009) 9(1) OUCLJ 1 Heydon JD, The Restraint of Trade Doctrine (3rd ed, LexisNexis Butterworths, 2008)
Dates of hearing:	21-22 May 2012
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	192
Counsel for the Appellants:	Mr M J Kimber SC and Mr N E Furlan
Solicitor for the Appellants:	Harmers Workplace Lawyers
Counsel for the Respondent:	Mr A Moses SC and Mr Y Shariff
Solicitor for the Respondent:	Lander & Rogers Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1484 of 2011

JUDGES:	BESANKO, JAGOT AND BROMBERG JJ
DATE OF ORDER:	20 NOVEMBER 2012
WHERE MADE:	SYDNEY

JUDGES:	BESANKO, JAGOT AND BROMBERG JJ
DATE:	20 NOVEMBER 2012
PLACE:	SYDNEY