Industrial Relations Commission of New South Wales in Court Session CITATION : TAB Agents Association v TAB Limited [2004] NSWIRComm 88 APPELLANT TAB Agents' Association of New South Wales PARTIES : RESPONDENT TAB Limited FILE NUMBER: IRC 6102 of 2003 CORAM: Wright J President; Walton J Vice-President; Kavanagh J; Boland J Appeal - Application for leave to appeal and appeal - Interlocutory issue - Commission's power to grant interlocutory relief under sections 106 and 107 of Industrial Relations Act 1996 - Exercise of discretion - Leave to appeal refused - Appeal dismissed CATCHWORDS : Unfair Contract - Appeal - Application for leave to appeal and appeal - Interlocutory issue - Commission's power to grant interlocutory relief under sections 106 and 107 of Industrial Relations Act 1996 - Exercise of discretion - Leave to appeal refused - Appeal dismissed LEGISLATION CITED : Industrial Relations Act 1996 CASES CITED : Knowles v Anglican Church Property Trust (No2) (1999) 95 IR 380 HEARING DATES: 03/23/2004 EXTEMPORE JUDGMENT DATE : 03/23/2004 APPELLANT Mr S Rothman, SC Solicitor: Mr J Catanzariti Clayton Utz LEGAL REPRESENTATIVES: RESPONDENT Mr S G Finch, SC with Mr R S Warren of counsel Solicitor: Mr N Stevens Windeyer Dibbs JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President KAVANAGH J BOLAND J Tuesday 23 March 2004 Matter No. IRC 6102 of 2003 TAB AGENTS' ASSOCIATION OF NEW SOUTH WALES v TAB PTY LIMITED Application by TAB Agents' Association of New South Wales for leave to appeal and appeal against an interlocutory judgment of Peterson J given on 1 October 2003 in Matter No IRC5872 of 2002 JUDGMENT OF THE COURT (EX-TEMPORE) [2004] NSWIRComm 88 1 President: Boland J will deliver judgment on behalf of the Full Bench. 2 Boland J: This is an application for leave to appeal and, if leave is granted, appeal by the TAB Agents' Association of New South Wales ("the appellant") from the interlocutory judgment of Peterson J in TAB Agents' Association of New South Wales v TAB Limited, [2003] NSWIRComm 316, published on 1 October 2003. 3 His Honour refused to grant the interlocutory relief sought by the appellant pending final determination of its substantive claims under s106 and s107 of the Industrial Relations Act 1996. 4 The interlocutory relief sought in the appellant's notice of motion at first instance was as follows: 1. The Respondent be restrained pending final determination of the proceedings IRC No 5872 of 2002, or until further order of this honourable Commission in Court Session, from: (1) terminating, or taking any steps to give effect to the termination thereof, the right or ability of the Applicant's Members to operate their respective betting agency(s); and (2) entering into any further New Agency Deeds, or similar agreement, that contains a provision or provisions that exclude the operation of the Dispute Resolution Agreement dated 13 August 1996 between the Applicant and Respondent and/or that is in or to that effect and/or operates in a manner that does not extend to the parties thereto recourse to a dispute resolution procedure in or to the same or similar effect; and (3) engaging in any conduct which is intended to induce Members to enter into the New Agency Deed or similar agreement. 2. Until the final determination of the proceedings IRC No 5872 of 2002, or until further order of this honourable Commission in Court Session, the Applicant's Members be entitled to pursue any dispute, as defined pursuant to the Dispute Resolution Agreement dated 13 August 1996 between the Applicant and Respondent, that they have with the Respondent in accordance with the terms of the Dispute Resolution Agreement notwithstanding any terms(s) to contrary contained in the agency deed, or similar agreement, entered into between the Member and the Respondent. 5 His Honour rules at [67] in his judgment: In all of the circumstances I consider the motion as bad for want of jurisdiction and/or merit as I have developed. I will dismiss the motion. 6 Both the appellant and the respondent have today been heard on the issues of leave and the substantive appeal. Nevertheless, we consider the matter can be dealt with on the basis of leave. 7 We have decided to refuse leave to appeal. We observe that at first instance, and on appeal, the appellant in its submissions addressed in detail the relevant jurisdiction issues relevant to the Commission's power to grant interlocutory relief in relation to an application for orders under s106 and s107 of the Industrial Relations Act. The appellant submitted that the Commission in Court Session possessed the power to make orders necessary to protect or enforce the right claimed so as to prevent its process from being thwarted and that, pursuant to that implied power, Peterson J should have granted the interlocutory relief sought. The appellant submitted that his Honour committed jurisdictional error in not doing so. 8 The mere raising of a jurisdictional issue by the appellant will not, of itself, establish a basis for the grant of leave, and here we refer to the decision in Knowles v Anglican Church Property Trust (No2) (1999) 95 IR 380, at 381 and the various authorities that have applied Knowles which are collected in Inspector Moore v Blacktown City Council [2003] NSWIRComm 47 at [13]. The judgment of his Honour Peterson J was, in our opinion, a proper exercise of his discretion and nothing his Honour did was inconsistent with established law and principles. Given the basis of his Honour's decision, which we consider was correctly explained by the respondent, we do not consider this is an appropriate vehicle to address the extensive submissions of the appellant in relation to the Commission's power to grant interlocutory relief. Whilst the matter initially appeared to present a vehicle to resolve different lines of authority which were relied upon by the appellant as the foundation for its application for leave to appeal, it became clear during the course of argument that no real issue emerged as to the question of jurisdiction. 9 The Full Bench makes the following orders: (1) Leave to appeal is refused. (2) The appeal is dismissed. [After hearing counsel as to costs the Full Bench made the following additional order and direction] (3) The question of costs is reserved. (4) Counsel will settle on a timetable such that any submissions on the issue of costs, if the question of costs is to be pressed, will be such that all submissions will be filed with the Registrar no later than 4.00 pm on Thursday 8 April 2004. _______________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.