Industrial Relations Commission of New South Wales in Court Session CITATION : XTMCA Ltd (formerly known as Toyota Motor Corporation of Australia Limited) v Cavacuiti & Anor [2000] NSWIRComm 152 APPELLANT XTMCA Limited (formerly known as Toyota Motor Corportation of Australia Limited) PARTIES : RESPONDENTS Anthony Andrew Cavacuiti Berridale Investments Pty Limited FILE NUMBER: IRC 7006 of 1999 CORAM: Hungerford J; Schmidt J; Boland J Unfair Contract - Appeal against finding that an "arrangement" existed - Whether an "arrangement" - Whether the arrangement was one "whereby a person performs work in an industry" - Meaning of "arrangement" and test to apply - Operation of a motor dealership - Whether work performed was either remote or only consequential upon the arrangement - Held, an arrangement existed - Appeal dismissed. CATCHWORDS : Appeal - Application for leave to appeal - Against finding that an "arrangement" existed which was one "whereby a person performs work in an industry" - Test to apply - Facts found at first instance - Leave refused - Appeal dismissed, with costs. LEGISLATION CITED : Industrial Relations Act 1996 s 106 CASES CITED : Legal and General Assurance Society Ltd v Stock [1993] 49 IR 464 HEARING DATES: 08/11/2000 EXTEMPORE JUDGMENT DATE : 08/11/2000 APPELLANT Mr J J E Fernon of counsel Solicitor: Mr C Barton Freehill Hollingdale & Page LEGAL REPRESENTATIVES: Mr J S Van Aalst of counsel Solicitor: Mr M Giugni Gates Moffitt JUDGMENT: - 4 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: HUNGERFORD J SCHMIDT J BOLAND J Friday, 11 August 2000 Matter No IRC 7006 of 1999 XTMCA LIMITED (FORMERLY KNOWN AS TOYOTA MOTOR CORPORATION AUSTRALIA LIMITED) v ANTHONY ANDREW CAVACUITI & ANOR Application for leave to appeal and appeal by XTMCA Limited (formerly known as Toyota Motor Corporation Australia Limited) against an interlocutory judgment given by Mr Justice Marks on 3 December 1999 in Matter No IRC 666 of 1999 re unfair contract. JUDGMENT OF THE COURT (extempore) 1 HUNGERFORD J: I will ask Schmidt J to deliver the first judgment. 2 SCHMIDT J: In this matter I am satisfied that leave to appeal should be refused. 3 Having heard the appellant, I am satisfied that Marks J did not err in concluding that an "arrangement", as that term has long been understood, existed between the parties as alleged in the initiating summons: see Legal and General Assurance Society Limited v Stock [1993] 49 IR 464 at 480-481. 4 I am also satisfied that the arrangement in question was one whereby a person performs work in an industry as required by s 106 of the Industrial Relations Act 1996. 5 The evidence indicated that in March 1998, the first respondent was informed that he had been selected as the appellant's dealer for the dealership opportunity for which he had applied, located in Cooma. 6 In April he signed an application for dealership as required by the appellant. In May it was confirmed that he had the franchise. While no written dealership agreement was entered by the parties after 17 April, the application signed that day indicated relevantly that the respondent's application "may be approved subject to the balance of Toyota's requirements being satisfied and the acceptance of the special conditions attached". 7 The respondents accepted those special conditions and thereafter the respondents and the appellant, through various of its employees, together took a number of steps which involved the performance of work in an industry in furtherance of the arrangement they had entered and in accordance with it. This included the respondents, with the appellant's assistance, obtaining premises approved by the appellant, the joint selection of a business name and its registration by the respondents, the appellant issuing the respondents a dealership number and the respondents acquiring a dealer's licence and eventually the respondents employing staff and commencing to trade. 8 It must be inferred that those steps were taken in order to satisfy the appellant's requirements. Indeed, later when the relationship was foundering, both the appellant and the respondents took the view that an agreement then existed as between them, and that the other was repudiating that agreement. 9 While none of the work performed by the parties may have been performed pursuant to a contract between them, contrary to their own view, the evidence plainly demonstrated however that the work performed by the parties was performed pursuant to the arrangement between them. 10 The evidence demonstrated that work was neither an accidental nor incidental consequence of the arrangement, but rather a direct purpose of the arrangement, namely in order to ensure that the arrangement be achieved. The work was performed in accordance with the arrangement and indeed required by it. The work was neither remote nor consequential upon the arrangement. 11 The parties joint view that they had indeed reached an agreement as a result of the steps they had taken together itself demonstrated the correctness of this conclusion. 12 Accordingly, I would propose the following orders be made: 1. Leave to appeal be refused. 2. The appeal be dismissed. 3. The appellant pay the respondents' costs of the appeal as agreed or assessed. 13 HUNGERFORD J: I agree. 14 BOLAND J: I agree. 15 HUNGERFORD J: Accordingly, the Court makes orders in the terms of those proposed by Schmidt J. __________________ 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. 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