Industrial Relations Commission of New South Wales in Court Session CITATION : Sweeney & Vandeleur Pty Ltd and anor v Robert Angyl and ors [2004] NSWIRComm 194 PARTIES : Sweeney & Vandeleur Pty Ltd and anor v Robert Angyl and ors FILE NUMBER: IRC No 2951 of 2004 CORAM: Haylen J Industrial Relations Act 1996 s 106 - unfair contract - interlocutory relief sought by notice of motion - consideration of nature of power to grant interlocutory relief - whether damages will usually provide adequate relief - dispute arising in administration and operation of barristers' chambers - work alleged to be performed by counsel and chamber's employees - whether arguable case for substantive relief - balance of convenience - peculiar nature of relationship and its breakdown a discretionary consideration - interlocutory orders refused. CATCHWORDS : Practice and procedure - Industrial Relations Act 1996 s 106 - consideration of nature of power to grant interlocutory relief - whether damages will usually provide adequate relief. Cardile v LED Builders Pty Ltd (1999) 198 CLR 380. Collison v Hewston and ors [2001] 103 IR 403 CSR Limited v Signa Insurance Australia Ltd (1997) 189 CLR 345 at 391 Cyanamid Co v Ethicon Ltd [1975] AC 396 at 408 Darvall v NZI Securities Australia Ltd (1990) 39 IR 215 Francom v Mirror Group Newspapers Ltd [1984] 1 WLR 892 Gough & Gilmour Holdings Pty Ltd and ors v Caterpillar of Australia Ltd and anor (No 9) [2001] NSWIRComm 260 Hill v C A Parsons and Co Ltd [1972] Ch 305 Jackson v Sterling Industries Ltd (1987) 162 CLR 612 Kenoss Contractors Pty Ltd v Allied Constructions Pty Ltd (2001 104 IR 66 per Wright J CASES CITED : Maiden and ors v New Zealand Natural Pty Ltd and anor (unreported NSWIRComm 109 Hungerford J 20 June 1997 Maharaj v 7 Eleven Stores Pty Ltd (unreported IR Comm 1150/97 Peterson J 4 April 1997) Patterson v BTR Engineering (Australia) Ltd (1989) 8 NSWLR 319 Patrick Stevedores Operations No 2 Pty Ltd v The Maritime Union of Australia (1998) 195 CLR 1 at 32 Selman v Sweet [2003] NSWIRComm 14 Sea Acres Rainforest Centre Pty Ltd v The State of New South Wales (2001) 109 IR 56 Stevenson v Barham (1977) 136 CLR 190 TAB Agents' Association of NSW v TAB Ltd [2003] NSWIRComm 316 TeleTech International Pty Ltd v Medical Benefits Fund of Australia No 2) [1998] NSWIRComm 534 Brisbane South Regional Health Authority v Taylor (1997) 168 CLR 541 at 549 Turner v The Australasian Coal and Shale Employees Federation and Elcom Collieries Pty Ltd (1985) 6 FCR 177 HEARING DATES: 05/27/2004 DATE OF JUDGMENT: 07/14/2004 APPLICANTS: Mr L Kelly, Solicitor for First Applicant SOLICITORS: Noel F Bracks & Co Mr C A Sweeney QC (Second Applicant) in person LEGAL REPRESENTATIVES: DEFENDANTS: Mr G Hatcher SC SOLICITORS: Ms Tracey Middleton The Macquarie Legal Practice JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Haylen J 14 July 2004 Matter No. IRC 2951 of 2004 Sweeney & Vandeleur Pty Ltd and anor v Robert Angyal and ors. Application under s 106 of the Industrial Relations Act 1996 JUDGMENT [2004] NSWIRComm 194 1 Since the early 1990s, Mr Charles Sweeney QC, the second applicant, has been a member of, and from time to time has been the head of, barristers' chambers which have operated through the corporate vehicle of 6th Floor, St James Hall Pty Ltd, the seventh respondent. Shares in the seventh respondent have been held by entities described as "Sweeney Family Companies". The first applicant is said to be such a family company holding shares in the seventh respondent. The first to sixth respondents are directors of the corporate respondent. 2 In May 2004, the applicants commenced proceedings under s 106 of the Industrial Relations Act 1996. The orders sought by the applicants included: an order declaring wholly or partly void or varying the contracts or arrangements whereby the second applicant performed work in an industry and whereby the employees of the seventh respondent performed work for the second applicant in an industry; an order declaring the contracts or arrangements whereby the second applicant and the employees of the seventh respondent performed work in an industry were and continue to be unfair, harsh and unconscionable and contrary to the public interest. The orders also sought the payment of an amount of money in connection with the contracts or arrangements so voided or varied as may appear to be just in the circumstances, interest on such amount of money, and costs of the proceedings. An order was also sought, of an interlocutory nature, that, pending the hearing and determination of the matter, the respondents be restrained from interfering with the quiet enjoyment of the applicants of their chambers, entering the chambers without the written consent of the applicants or doing or permitting any act or thing likely to adversely affect the ability of the applicants to perform work or enjoy the premises. 3 Because of the applicants' concern that the respondents were soon to remove Mr Sweeney QC from his chambers, the application was listed urgently for conciliation. On 24 May 2004, conciliation was conducted but was unsuccessful. The parties agreed that, until the matter had been re-allocated by the President, they would observe the status quo as it existed on 21 May 2004. 4 On the same day that the substantive application under s106 of the Act was filed the applicants also filed a motion for interlocutory orders. The primary interlocutory order sought was that, pending the hearing and determination of the matter the respondents be restrained from "interfering with the quite enjoyment of the applicants of their chambers, entering the chambers without written consent of the applicants or doing or permitting any act or thing likely to adversely affect the ability to perform work or enjoy the premises". The affidavit in support of the Notice of Motion referred to correspondence between the parties and alleged that the respondents had threatened and continued to threaten to exclude the applicants from their chambers and to change the locks within seven days of 14 May 2004. The affidavit also stated that, unless restrained by order, the effect of the exclusion and lock change would be to entirely prevent the applicants from using the premises, from access to their telephones and computers, law library, professional files and research facilities. It was stated that the applicants would suffer irreparable harm if an order were not to be made in the terms sought and that the respondents' conduct up to the present made it highly likely that they intended to inflict irreparable harm on the applicants. That supporting affidavit was sworn by a solicitor of the firm instructed by the applicants in the s 106 proceedings. 5 The Summons for Relief filed by the applicants stated that the seventh respondent was established for the purpose of taking leases at Levels 6 and 7, 169 Phillip Street, Sydney and for making the premises available to barristers associated with the shareholders of the seventh respondent. It was alleged that the structure agreed to by the shareholders was that there would be a shareholders' agreement to establish the rights and obligations of the shareholders between themselves and to ameliorate what would otherwise have been the effect of the Articles of the seventh respondent in the Users' Agreement, under which the seventh respondent would make various separate areas of the premises exclusively available to the barristers, in accordance with the arrangements which had been made as to who should occupy which nominated chambers. 6 The Summons referred to the Shareholders' Agreement, entered into in 1992, which contained a number of provisions and safeguards including the conferral on the first applicant of the right to occupy chambers, to require subsequent floor members to be bound by the Agreement and to impose a mutual duty to be "just and faithful". It was alleged that the respondents were treating this Shareholders' Agreement as no longer binding because by its terms the Agreement was to automatically terminate on the expiry of the lease or the winding-up of the company, whichever occurred first. The original leases expired in 2003: thus the respondents relied on the terms of the Agreement itself as terminating the Shareholders' Agreement. The applicants contend that, properly construed, the Shareholders' Agreement did not have that effect but contemplated a renewal of the lease would operate to keep on foot the Shareholders' Agreement and its terms. 7 The applicants also argued that there was inconsistency between the Articles and the Shareholders' Agreement. The Shareholders' Agreement provided that, where there was a default that continued for six months, then the defaulting shareholder would be deemed to have given a transfer notice "in accordance with the pre-emptive rights". There was also said to be inconsistency between clauses of the Articles governing the circumstances under which and the times at which the shares might be sold or disposed of as a result of a default. 8 These provisions came into focus as a result of a disagreement between the second applicant and the respondents going back to at least February 2004: at various times substantial sums were said to be owed by the applicants in relation to the occupancy of the chambers. The second applicant had wished to engage the directors in a discussion of what he regarded as the inadequacies of the administration and shortcomings in the operation of the floor but had been ignored. A notice had been served on the applicants and, after the exchange of correspondence, certain monies had been paid by the second applicant such that, at the time of the hearing of the Notice of Motion it was asserted without demur there was no longer an issue of money being outstanding. In view of this circumstance alone the applicants argued that there was no authority for the respondents to proceed to exclude the second applicant from his chambers. The respondents continued with the view that these circumstances entitled them to move on the notice and to take possession of the chambers occupied by the second applicant. 9 The Summons for Relief spelt out in some detail the deterioration of the relationship between the parties. As this aspect is of some significance in the ultimate determination of the application, the following paragraphs of the Summons for Relief indicate the bitterness of the dispute between the parties: 24. The respondents refuse to meet with the second applicant or to discuss his complaints and insist that he make payment of the full amount charged by the corporate respondent for not only rent but for all other outgoings of the corporate respondent whether or not reasonably required by him. 25. Following the rising of the disagreements referred to, the respondents began [to] engage in conduct calculated to harass, embarrass and humiliate the second applicant with a view to disrupting the peaceful use by the second applicant of his chambers and of driving him from his chambers. 26. On 14 April 2004, the corporate respondents served a notice requiring the payment of money said to be owing. The notice failed to give credit for the amount standing to the credit of the first applicant in the corporate respondent's account. The notice claimed for monies which were not owing. 27. The notice did not state or disclose the respondents' contention that in the event of failure to completely and fully comply with the notice by its due date, the respondents would excluded the applicants from their chambers and treat themselves as holding an irrevocable transfer notice to dispose of the applicants' shares in the corporate respondent. ... 29. On 20 April 2004, the corporate respondent by the second respondent by a formal and peremptory notice purported to require access to the applicants' chambers at 9.30 am on 22 April 2003 "pursuant to the Articles of Association of the Company". The purported requirements stated no factual reason or cause for such requirement. 30. The purported requirement was not authorised by Clause 11 of the First Schedule of the Articles or at all. ... 31. On 21 April 2004, the corporate respondent by the first and second respondents by a formal and peremptory letter stated that the assertions in the second applicant's letter of 20 April "are rejected" and asserted that "failure to comply with the requirements stated in my letter yesterday would be a breach of the Articles of Association". The letter indicated the respondents had paid no regard for the feelings and sensitivities of the applicants but instead had determined upon a course of conduct calculated to humiliate and harass the applicants and to seriously erode and diminish their quiet enjoyment of the premises. The letter was not a genuine response to the expression of applicants' concerns but an abuse or excess of power over the applicants by the respondents. 32. The conduct of the respondents in relation to the notice did not meet the standards of being just and faithful to the applicants. 33. The conduct of the respondent in relation to the notice did not meet the standard of discharging the respondents' fiduciary duties to the applicants but instead represented an abuse or excess of power occasioned by the position of the respondents in relation to the applicants. 34. The conduct of the respondents in relation to the notice was high handed and outrageous, abusive, insulting, oppressive, dismissive and contemptuous. 35. On 22 April 2004, the respondents entered the chambers of the applicants without the consent of the applicants and contrary to the refusal of the applicants to consent to the entry. 36. The entry was unlawful, high handed, outrageous, abusive, oppressive, dismissive, contemptuous and an invasion of privacy. 37. The entry was effected by falsely informing the Clerk to the floor that the respondents had made an arrangement with Mr Sweeney QC to enter his chambers and by obtaining keys and access for that false pretence. 38. The entry was by reason thereof an unlawful breaking and entering by each of the respondents. 39 The entry was observed by members and employees of the floor and others, it having occurred at the busiest time of the day. 40. The entry was calculated to humiliate the applicants. 41. The entry constituted grave professional misconduct by the personal respondents as barristers and constituted a breach of their fiduciary obligations to the applicants and a breach of their duties to be faithful and just to the applicants. 42. Prior to the entry, the respondents had clandestinely engaged a private inquiry agent or investigator to conduct an investigation of the applicants and to examine the telecommunications facilities connected for the benefit of the applicants' chambers to the telecommunications board in the premises. 43. The engagement and investigation was a breach of the fiduciary duty which the respondents owed to the applicants and a breach of their duty to be faithful and just to the applicants, was high handed, outrageous, oppressive and constituted professional misconduct. ... 48. The respondents contend that the Articles of the corporate respondent formed the basis of a contract which entitles them to dispossess the applicants from the premises despite the fact [that] a credit balance exists in their favour. 49. The respondents have threatened and continue to threaten to change the locks and exclude the applicants from their chambers seven days from 14 May 2004. 50. Exclusion from the chambers would prevent the second applicant from carrying on work in an industry namely as a barrister from the chambers. 51. The applicants contend that if the terms of the contract and arrangement do authorise the respondents to remove the applicants from the premises they are unfair and unconscionable. ... 55. The applicants contend to the extent to which the terms of the contract permitted the respondents to engage in humiliating and harassing conduct towards the applicant they are harsh and unconscionable. 10 In Part D of the Summons for Relief, under six sub-headings, a claim was made for the payment of $780,000 to the applicants. During the course of argument it was brought to the applicants' attention that the Summons for Relief, as filed, while claiming unfairness, did not in terms seek to vary any of the arrangements under which the second applicant occupied chambers nor did it seek to secure the occupancy of chambers on an ongoing basis. The applicants thereupon sought to amend the Summons seeking orders varying the Shareholders' Agreement, the Users' Agreement and the contract constituted by the Articles to the extent necessary to ensure that the seventh respondent was not enabled to dispossess the applicants if all monies owing had been paid and, further, to ensure that the seventh respondent was not entitled to interfere with the quiet enjoyment by the applicants of their chambers if all monies owing had been paid. In addition, the seventh respondent was not entitled to require the applicants to vacate their chambers on seven days' notice but only upon the giving of reasonable notice and only if at the end of that period of reasonable notice monies were still outstanding. 11 The applicants submitted that the jurisdiction to grant interlocutory relief had been settled by Boland J in Collison v Hewston and ors [2001] 103 IR 403. In relation to the existence of serious questions to be tried, the following issues were said to arise in the proceedings: (i) whether the Shareholders Agreement entered into in 1992 continues to bind the respondent company and if so whether the conduct of the respondents in threatening to exclude the applicants from the premises from which the second applicant carries on practice at a time when no moneys are owing breaches the duty of the respondent company to be faithful and just to the applicants; (ii) whether the provisions of Article 16(2) in its capacity as a contract between the company and its shareholders preclude the sale of a shareholder's share by the respondent company at a time when no moneys are owing; (iii) whether the provisions of Article 39(3) in its capacity as a contract between the company and its shareholders sanctions the sale of a shareholder's share at a time when no moneys are owing; (iv) whether, if Article 39(3) does sanction such a sale, it amounts to a penalty or forfeiture against which relief would be granted; (v) whether the contracts between the parties are unfair contracts within the meaning of s 106; (vi) whether the users agreement signed in 1995 applied to the second applicant upon his return to chambers in August 2003; (vii) whether, if it did, the user's agreement created rights in the nature of tenancy; (viii) whether the Shareholder's Agreement created rights in the nature of tenancy; (ix) whether the Articles created rights in the nature of tenancy; (x) whether the conduct of the respondents breached the quasi tenancy rights of the applicants; (xi) whether the facts raise the implication that the respondents are engaged in conduct for the purpose of driving the applicants from their chambers for purposes which the Commission would conclude are improper. 12 In relation to the balance of convenience, it was submitted that the making of orders was supported because of the following matters: (i) the harm to the applicants if the locks are changed is likely to be irreparable and not compensable by damages; (ii) no harm would ensue to the respondents if an order were made, as no moneys are owing and the respondents have a lien on the share in any event; (iii) if an injunction be not granted the subject matter of the application for s 106 relief insofar as it seeks orders to protect the applicants' quiet occupation of the workplace would be destroyed. 13 In summary, the applicants' case was that there should be a status quo order and that the effect of the interlocutory order sought in the Notice of Motion was to preserve the subject matter of the application. If the interlocutory order was not made, then the applicants would be deprived of their continuing right to possession and it would be "virtually impossible" to rectify that position thereafter. In relation to the balance of convenience, during argument, it was suggested to the applicants that the state of the relationship described in their own pleading was so poisonous and was so lacking in mutual trust that a real issue arose as to the balance of convenience. The applicants' replied that, firstly, the respondents should not be advantaged by their own unfair conduct and, secondly, while the correspondence might be regarded as acrimonious, the balance of convenience needed to consider the second applicant's position of 14 years' occupancy of the chambers, a number of decisions in the operation of the floor which he sought to discuss and which the respondents had declined to discuss, a perhaps rash response by the second applicant declining to pay floor fees when they arose until discussions took place, and the unwarranted response of the respondents, even when the money had been paid, to seek to remove the applicants from chambers. The balance of convenience favoured the status quo until the substantive application was determined. 14 For the respondents, it was pointed out that there was no suggestion that Mr Sweeney QC would be "put in the street", as he had chambers in Melbourne as well as these chambers in Sydney. He was in a position to continue to conduct his practice as a barrister whether or not he had access to the particular room in St James' Hall. Quite apart from arguments of this nature going to convenience, there were serious jurisdictional flaws which infected the application. It was noted, for instance, that the Summons for Relief alleged that Mr Sweeney QC worked in an industry as counsel as well as the employees of the seventh respondent. To the extent that Mr Sweeney QC relied upon his own work in an industry, those contracts and arrangements were presumably between Mr Sweeney QC and solicitors or directly with clients, but they were not contracts or arrangements with any of the respondents. The work performed in an industry otherwise relied upon the work performed by the floor clerk and the receptionist: the applicants had merely adopted a formula approach to the pleadings as a means of invoking the jurisdiction of the Commission under s 106 of the Act. 15 In this case there was no contract. In its widest terms, the arrangements between the parties merely provided the premises from which the applicant could engage in work and were not the direct means for the performance of work. 16 Further, the Commission did not have a general power to grant injunctive relief as available in courts of general jurisdiction such as the Supreme Court. The jurisdiction of the Commission in Court Session was to protect against an abuse of its processes when someone consciously set about removing from that arena the fruits of any potential for the Court to adjudicate on the matter. It was not an abuse of the Court's processes for the parties to exercise their legal rights conferred under the agreements and arrangements. 17 In relation to the nature of the disputation between the applicants and the respondents, it was clear from affidavits filed that Mr Sweeney QC did not wish to utilise and therefore pay for the usual services provided to a floor of barristers, that is, telephone, tea making and receptionist services. There was evidence that a business unconnected with the practice of a barrister was being conducted from the rooms held by the applicants and that was contrary to the arrangements under which the floor was established. The dispute had erupted to the point where it had spilt over into a conference being conducted by another member of the floor during which strong and colourful language was used concerning the state of the dispute between the members and the applicant. These matters were all relevant to the issue of convenience. 18 While it might be argued precisely where the line is to be drawn in the granting of injunctions in s 106 cases it was accepted for the respondents that the present line of authority evident in the Commission was to protect against an abuse of process. An abuse of process was not whether or not the Court could grant the relief sought, it was whether or not the Court was being denied the opportunity to grant relief where steps had been taken to remove the matter from the field of argument. DELIBERATION 19 Although the applicants relied upon the judgment of Boland J in Collison in relation to both jurisdiction and the relevant test, that judgment must be understood in the context in which it arose, namely, an application for an order that part of a rule of a registered organisation was oppressive, unreasonable or unjust. In that case Boland J relied upon the specific provision of s 247(7) empowering the Commission to make interim orders in a proceeding under s 247 although recognising the existence of a wider, implied power. There is no specific provision dealing with interim orders or interlocutory relief found in s 106 or in Part 9, Ch 2 dealing with unfair contracts. There has been a continuing discussion of this area in recent times: earlier cases such as Darvall v NZI Securities Australia Ltd (1990) 39 IR 215 and Maharaj v 7 Eleven Stores Pty Ltd (unreported, IRComm 1150/97, Peterson J, 4 April 1997) concluded that there was power to grant orders in the nature of injunctive relief in s 106 cases although the power to do so was quite circumscribed. More recently, in Sea Acres Rainforest Centre Pty Ltd v The State of New South Wales (2001) 109 IR 56, the Court as presently constituted considered the jurisdictional basis for Mareva type injunctions and drew a number of conclusions as to the availability of a similarly based power in this Court to grant orders in the nature of injunctive relief in s 106 cases although accepting that the jurisdictional basis for such orders was quite narrow. The point was made, however, that once jurisdiction was established there was no reason to restrict the types of orders that might be made to meet a particular situation. Similar views have since been expressed by Boland J in Gough & Gilmour Holdings Pty Ltd and ors v Caterpillar of Australian Ltd and anor (No 9) [2001] NSWIRComm 260 and also in Selman v Sweet [2003] NSWIRComm 14. 20 These approaches, particularly as expressed in Sea Acres, have more recently been considered by Peterson J in TAB Agents' Association of NSW v TAB Ltd [2003] NSWIRComm 316. His Honour appears to accept the earlier authorities such as Maiden and ors v New Zealand Natural Pty Ltd and anor (unreported, NSWIRComm 109, Hungerford J, 20 June 1997) as establishing that the types of interlocutory orders able to be made by the Court were not limited to Mareva type orders. His Honour noted that on one view there was a clear split in the approach adopted in the line of cases culminating in Kenoss Contractors Pty Ltd v Allied Constructions Pty Ltd (2001) 104 IR 66 per Wright J and the approach taken by Boland J in Collison and in Gough & Gilmour (No 9) and Haylen J in Sea Acres. He noted that central to the reasoning was the power of the Court extending to ensuring final relief would not be frustrated and that any order may be made to protect the Court's jurisdiction. While those two statements could be accepted on their face as correct, both of them derived from authorities dealing solely with Mareva type injunctions such as Jackson v Sterling Industries Ltd (1987) 162 CLR 612; Patterson v BTR Engineering (Australia) Ltd (1989) 8 NSWLR 319 and Cardile v LED Builders Pty Ltd (1999) 198 CLR 380. Peterson J then made the following points: (a) the types of interlocutory orders made by the Court have been limited to Mareva type orders although Hungerford J in Maiden held that the jurisdiction was not limited to such orders; (b) how far the power would extend seemed to remain an open point; (c) save for situations where the applicant has a contractual right to remain, a right which the respondent is seeking to interfere with, an interlocutory order which has the effect of preventing the respondent from terminating a contractual relationship has some hallmarks of specific performance; (d) it was now beyond argument that the source of power to grant interlocutory orders, in the context of s 106 proceedings, is in the implied rather than the inherent power to grant orders to protect the Court's jurisdiction; (e) there was no basis for considering that the source of power to grant Mareva type orders in s 106 proceedings was any different or more limited in respect of a different kind of order seeking the preservation of the status quo in a relationship between the parties pending the final hearing of the matter. 21 In considering these matters his Honour then concluded: [49] ... The reconciliation of the seemingly conflicted views as to what may come within that power may lie in what Haylen J described in Sea Acres as a case in which '... damages are not an adequate or appropriate remedy as the pleadings and evidence presently stand'. It seems to me that the termination of a contractual relationship, whether one of employment or one more akin to a commercial relationship under which work is performed, is always likely to be, perhaps necessarily, compensable by a money order. It is difficult to conceive, although I do not reject the possibility of, a situation where a money order would not be adequate compensation. ... [50] However, in Sea Acres Haylen J referred to compensation as being not 'adequate or appropriate'. Those terms are not synonyms and I consider the addition of the alternative of 'appropriate' possibly goes beyond the scope of the relevant power. ... [53] I emphasised the sentence in Cyanamid dealing with the object of the interlocutory injunction to be the protection of a right for which the plaintiff could not be 'adequately compensated in damages recoverable in the action'. This observation does not raise any consideration of appropriateness but rather only adequacy. This seems to me to be important in s 106 proceedings which necessarily relate to contracts or arrangements which will always be terminable in an appropriate manner. [54] Further, to utilise mandatory orders to preserve a contractual relationship pending the hearing, would be more in the nature of specific performance, or an injunction to restrain a party from acting lawfully pursuant to his contractual rights. Where the statutory power of the Court includes avoidance of a relevant contract, or its variation, ab initio or from some other time, there seems to me ample power to ensure, at least in the usual case, that a money order under s 106(5) will be able to adequately compensate in such circumstances. ... [57] In a context where there is no power to grant specific performance it is, in my view, immaterial that the contract may be terminated, in the interim, always provided that an alternative money order may be made. That is usually the case with general interlocutory relief: the very principles applied contemplate that, if damages are an adequate remedy, then interim relief is refused. ... [59] I can envisage the possibility that a case may warrant interlocutory orders where an applicant seeks variation of a contract which is within its contractual terms and where no apparent lawful basis for its termination exists. There the potentially unlawful act of the respondent may truly threaten the jurisdiction of the Court in the sense that the availability of relief by money may be inadequate. [60] It has only been in limited circumstances, such as Teletech, that the powers under s 106 have been accepted as extending to the forced retention of a contractual relationship which one party wishes to bring to an end. Such termination, whether involving notice in accordance with the terms of the contract, or elements of breach of those terms, or the assessment of appropriate notice, are always capable of compensation by money order. I can see no reason why the Commission in Court Session ought to be thought to have, pursuant to s 106, a power to compel the continuance of a contractual relationship in circumstances where one or other of the parties wishes it to end. 22 It can be seen from these extracts that, while Peterson J accepted that there was jurisdiction to grant an "injunction" in s 106 matters, both the basis of that power and the nature of the orders that might be made were severely limited. His Honour's views appear to be influenced in the following ways: (a) the termination of contractual relationships is always likely to be (and perhaps necessarily so) compensable by a money order - such a money order in most cases would be adequate compensation by way of relief; (b) the formulation in Sea Acres that damages are not "an adequate or appropriate remedy" impermissibly extends the power to grant an injunction - injunctions are not usually granted where damages are an adequate remedy. The tests for granting an injunction has not looked to whether the remedy of damages was "appropriate"; (c) s 106 proceedings necessarily relate to contracts or arrangements which will always be terminable in an appropriate manner; (d) to utilise mandatory orders to preserve a contractual relationship pending a hearing is akin to an order for specific performance, a power which is not available under s 106; (e) the fact that a contract or arrangement was terminated during the course of proceedings is immaterial so long as damages provides adequate relief; (f) although there may be special cases involving unlawful termination of a contract or arrangement, in which case protection of the Court's jurisdiction would extend to the granting of an injunction, there is no reason to treat s 106 as involving a power to compel the continuance of a contractual relationship in circumstances where one or other of the parties wishes it to end. 23 In departing from the approach in Sea Acres, Gough & Gilmour and Selman and Sweet, Peterson J pointed out that the analysis of the availability of injunctive relief in s 106 cases was derived from cases dealing solely with Mareva injunctions. The suggestion seems to be that such a concentration may not have focused sufficient attention upon the usual principles governing an application for an injunction. In Sea Acres, however, the concentration on Mareva order cases was directed at the evolution of that power and its application in a growing variety of circumstances and in a growing variety of forms and, further, because of the identification of its doctrinal basis as being in the power of a court to address an abuse or frustration of its process and to ensure the effective exercise of the jurisdiction granted to the Court. Thus, in Cardile, the majority of the court noted that the English authorities appeared to have developed to a stage where what was identified as the Mareva injunction or order lacked any firm doctrinal foundation and was best regarded as some special exception to the general law, and that, while it was undesirable that asset preservation orders of the Mareva variety be left as a sui generis remedy with no doctrinal roots, the term "injunction" was an inappropriate identification of that area of legal discourse within which the Mareva order was to be placed. The majority also cited the point encapsulated in the joint judgment of the High Court in CSR Limited v Signa Insurance Australia Ltd (1997) 189 CLR 345 at 391, namely, that the counterpart of the court's power to prevent its processes being abused was its power to protect the integrity of those processes once set in motion. The majority then spoke of the protection of the administration of justice possibly extending to asset preservation orders even against third parties to the principal litigation. 24 In Cardile, the Court was dealing with the provisions of s 23 of the Federal Court Act which provided that the Court has power, in relation to matters within its jurisdiction, to make orders of such kind, including interlocutory orders, and to issue or direct the issue of writs of such kind as the court thought appropriate. Deane J in Jackson's case had said that this power resided in a superior court with or without a provision of the nature of s 23 of the Federal Court Act. Importantly, at paragraph [26], the majority noted that it was not instructive to attempt to force what had become known as the Mareva order into the mould of interlocutory injunctive relief as administered under that description by courts of equity. The court referred to the misapplication of the term "injunction" to identify either the nature of or the juridical foundation for the Mareva order. At paragraph [40] the majority stated: In these various ways, the courts developed doctrines and remedies, outside the injunction as understood in courts of equity, to protect the integrity of its processes once set in motion. The Mareva order for preservation of assets should be seen as a further development ... there is no harm in the use of term Mareva to identify that development, provided the source of the remedy is kept in view when considering the form of the remedy in each particular case ... . 25 The majority went on to point out that, in Patrick Stevedores Operations No 2 Pty Ltd v The Maritime Union of Australia (1998) 195 CLR 1 at 32, in the joint judgment of Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ, it was said that the Mareva injunction was the paradigm example of an order to prevent the frustration of a court's process although other examples may be found. Importantly, the moulding of an interlocutory injunction depended upon the circumstances of each case: an interlocutory order in the nature of a Mareva injunction may be exercised according to the exigencies of the case and novelty of form was no objection to the validity of such an order. The general principle which informed the exercise of the power to grant interlocutory relief was that the court may make such orders, at least against the parties to the proceedings against whom final relief might be granted, as were needed to ensure the effective exercise of the jurisdiction invoked. It was accepted that the courts were required to scrutinise applications for Mareva orders with great care and such orders were not to be granted lightly. In relation to s 23 of the Federal Court Act, attention had to be paid to what was "appropriate" in the circumstances. Discretionary considerations were to be carefully weighed before an order was made. 26 The discussion in Sea Acres was framed so as to bring together a variety of authorities in this evolving area. Having established the court's power to enable it to act effectively within its jurisdiction (the same basis which gives rise to a Mareva order), and the inappropriateness of referring to these orders as "injunctions" as granted in courts of equity, necessarily meant that the usual tests attending the granting of such an injunction may well be inappropriate in the exercise of this type of power. It was in this context that authority was cited for the proposition that, while the traditional question was - "are damages an adequate remedy?", that question could be rephrased as - "is it just in all the circumstances that the plaintiff be confined to his remedy in damages?". When this Court is faced with an application for the exercise of this implied power, not only is it inappropriate for the Court to be confined to the usual principles applicable to injunctions granted by the Supreme Court in Equity but, as Kirby J said in Cardile, the circumstances in which such an order may be made are not to be circumscribed or "hedged by immutable principles". It is also to be borne in mind that the essence of s 106 (and its predecessors) is the capacity to re-write contracts and arrangements and to create new rights, a power quite foreign to the usual jurisdiction exercised by common law judges or courts of general jurisdiction. The width of remedies available in this court necessarily informs the scope of an interlocutory order to prevent the frustration of the Commission's due process: thus, there may be many cases where confining the applicant to "damages" will not do justice between the parties. Even the term "damages" is misleading when used in reference to the power of this Court to make a money order in relation to unfair contracts. The term "damages" is generally eschewed as an apt description of the power, and the power to make a money order is itself consequential upon the Court finding unfairness in the arrangements. 27 As pointed out by the High Court in Cardile, the making of such an interlocutory order is discretionary. It is quite contrary to usual legal principle that a discretion (especially one of the nature here under discussion) is to be principally exercised in an inflexible manner, namely, rejecting any interlocutory order on the basis that, in matters dealing with contracts and/or arrangements associated thereto, damages would normally and usually be an adequate remedy. A discretion which in truth permits no discretion to be exercised is not a discretion (see Toohey and Gummow JJ in Brisbane South Regional Health Authority v Taylor (1997) 168 CLR 541 at 549) - such an approach circumscribes the making of these orders by immutable principles. 28 To the extent that Peterson J was concerned that on some occasions interlocutory orders preserving the jurisdiction of the Court in s 106 applications may bear the appearance of orders for specific performance, that consideration (assuming its accuracy) no longer has the force that it once possessed. In Turner v The Australasian Coal and Shale Employees Federation and Elcom Collieries Pty Ltd (1985) 6 FCR 177), the Full Court of the Federal Court at (192-193) stated that in these days there may be many reasons other than the seeking of remuneration why either party may wish to keep a contract of employment alive: from the employer's view there may be a desire to restrain the employee from accepting employment which would be in breach of a restraint of trade clause or from acting contrary to some term of the contract which restricts the employee in his or her activities after the end of the employment, and from the employee's point of view there may be entitlements to annual leave, long service leave or superannuation which depend upon the continuance of employment. After a consideration of the authorities including Hill v C A Parsons and Co Ltd [1972] Ch 305, the Full Court stated that what is clear is that courts will no longer set their face against granting the remedies of declaration and injunction in respect to contracts of employment. These are precisely the types of cases where doing justice between the parties may require this Court in s 106 cases to make orders preserving the relationship until final determination of the application. Bearing in mind the doctrinal basis for such orders, the substance of the matter (being the protection of the Court's jurisdiction) will carry much greater consideration than the mere appearance of giving specific performance. 29 The discussion of these issues by Peterson J, with respect to his Honour does not deal with the significance of the following matters in making interlocutory orders in s 106 applications: (a) the mere availability of a money order (or "damages" as referred to his Honour) is not to be confused with the adequacy of such a remedy as the form of final relief: (b) the power to vary a contract is stripped of much of its effectiveness if unfair contracts are allowed to be terminated leaving only a power to declare the contract void and to make a money order as compensation; (c) in the classic formulation of the considerations relevant to granting an interlocutory injunction, Lord Diplock in A merican Cyanamid Co v Ethicon Ltd [1975] AC 396 at 408 said that the readiness to grant or refuse an injunction (as distinct from an interlocutory order in the protection of the Court's process) varies according to the branch of the law and the nature of the rights infringed. Where there is a doubt as to the adequacy of damages the question of the balance of convenience arises: this has sometimes been described as the balance of justice ( Francom v Mirror Group Newspapers Ltd [1984] 1 WLR 892); (d) where other factors appear to be evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the status quo (per Lord Diplock in Cyanamid ); (e) the power of the Court to protect its jurisdiction is not confined to just some of the remedies available (such as "damages") - the protection extends to the entire jurisdiction, and, in the case of applications brought under s 106 of the Act, this is a broad range of remedies. 30 Having regard to these matters, I approach this application for interlocutory orders by the applicants adopting the approach set out in Sea Acres and accepting that there is jurisdiction in the Court to make such orders as are necessary to ensure that the Court is not denuded of its capacity to make an effective final order. In this respect, it should be noted that the original form of the Summons for Relief seemed to focus on the making of an order for the payment of money in compensation for the unfairness alleged. The Amended Summons made clear that the focus of the case was upon declaring the unfairness of the conduct of the respondents and the operation of the arrangements between the applicants and the respondents and to vary those arrangements to the extent necessary to preserve the applicants' entitlement to retain chambers in circumstances where all outstanding fees had been paid. In this way, the Summons for Relief reflected the provisions of the Act which are primarily directed at voiding or varying unfair arrangements and only as a consequence thereof making orders for the payment of money. The awarding of monetary compensation is a secondary rather than a primary remedy and depends upon the pivotal and primary remedy having been granted (TeleTech International Pty Ltd v Medical Benefits Fund of Australia No 2) [1998] NSWIRComm 534. 31 I am satisfied, as was the President, Wright J, in Kenoss, that the Commission in Court Session is empowered, by reason of its constitution as a superior court of record, to make interlocutory orders in the protection of its process and so as to ensure that any final orders made may not be frustrated or put at nought. I am also satisfied that once that power is invoked then it is to be understood that the power of each court over its own process is unlimited: it is a power incidental to all courts, inferior as well as superior, and may be exercised for the purpose of defeating any attempt at thwarting the court's process. A court endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction and that is a power that has not traditionally been restricted to defined or closed categories (see Gaudron J in Jackson v Sterling Industries Ltd at 648-639) I am unable to agree with Peterson J that effectively the discretion to grant such interlocutory orders would not be exercised because invariably damages would be an adequate remedy. As Gaurdron J noted in Jackson's case, the power to make such interlocutory orders was one not traditionally restricted to defined or closed categories but may be exercised where the administration of justice demands it. 32 I then turn to consider the usual principles applicable in granting interlocutory relief. It may be said immediately that as the material presently stands the applicants appear to have an arguable case of significance on the unfairness of an arrangement which would result in the loss of a valuable right (namely, the right to occupy chambers as a shareholder in the seventh respondent) merely because there was an outstanding debt which had arisen in special circumstances and which, in any event, had been satisfied. It is well understood in the profession that membership of certain floors l known for excellence in general or specialist fields of practice is a significant, if somewhat intangible, benefit. 33 The respondents stepped by that aspect of the applicants' case by concentrating on the question of jurisdiction. The applicants have pleaded work in an industry in two ways: work performed by Mr Sweeney QC as counsel and work performed by staff for Mr Sweeney QC who are engaged by the seventh respondent, (such as clerking and receptionist services). The conduct of a professional practice as counsel is not generally regarded as work in an industry and the profession has jealously guarded its unique status. Further, s 106 of the Act concentrates upon the substance of the arrangement and that focus will not be deflected by clothing arrangements so as to present some other particular state of affairs. In this case, the substance of the arrangements was to establish barristers' chambers: the employment of persons to service that professional undertaking was merely incidental to the central purpose. On this approach the applicants' arguable case must be regarded as weak. Further, the applicants' outline of argument refers to the creation of a tenancy or quasi tenancy - if that be the substance of the arrangement, then again, the applicants' arguable case must be regarded as weak. 34 The issues which arise in this application have significance for the profession and the rules which are often adopted for the formation and operation of chambers. The applicants' substantive application raises questions of professional misconduct, the rights of entry to chambers and the circumstances which may warrant forfeiture of the right to occupancy of chambers. These matters are more appropriately addressed with the assistance of the parties' professional association than by attempting to squeeze them uncomfortably within the jurisdiction of the Commission under s 106. Even allowing for the breadth of jurisdiction conferred by the intractable language of s 106, Barwick CJ in Stevenson v Barham (1977) 1 36 CLR 190 counselled against the Commission using this extensive discretion to meddle in arrangements entered into at arms length where there is no inequality and which involve no oppressive exploitation. This Commission is not obliged to exercise its discretion to declare every contract void or to vary its terms even if there is evidence of unfairness - much will depend upon a consideration of all the circumstances of a case including the presence of any countervailing factors. 35 Consideration of the balance of convenience therefore raises some difficult issues. As earlier indicated, the applicants' own pleadings paint a picture of a professional relationship which is under severe strain. The Summons for Relief alleges, inter alia, professional misconduct on the part of the respondents, raises allegations of breaking and entering, alleges mala fides in the issuing of the notice and the attempts to obtain occupancy of the chambers now held by Mr Sweeney QC. Although there is some substance in the applicants' contention that the respondents should not be advantaged by their own unfair conduct, the strength and width of the allegations arising as they do in the conduct of a professional practice in the law tends against the Court exercising its discretion to require the continuance of that deeply impaired relationship: in the present case it is the peculiar nature of that relationship which elevates this consideration above the usual issues contemplated in such an application. 36 In the unusual circumstances disclosed in this matter, the application for interlocutory orders is dismissed. The parties are directed to confer on the appropriate steps for the final hearing of this matter having regard to the standard directions recently issued by the Commission. 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.