Bakers Delight Holdings Limited v Industrial Court of New South Wales [2009] NSWCA 126

New South Wales Court of Appeal

CITATION: Bakers Delight Holdings Limited v Industrial Court of New South Wales [2009] NSWCA 126

HEARING DATE(S): 11 May 2009

JUDGMENT DATE: 2 June 2009

JUDGMENT OF: Spigelman CJ at 1; Allsop P at 68; Tobias JA at 74

DECISION: The summons is dismissed with costs.

CATCHWORDS: ADMINISTRATIVE LAW – judicial review – privative clause – supervisory jurisdiction of the New South Wales Court of Appeal – jurisdictional error – error within jurisdiction – evaluative judgment – comparison of original and amended pleadings – scope of Full Bench's decision – Industrial Relations Act 1996 (NSW), s 179(4) - INDUSTRIAL LAW – New South Wales – jurisdiction – privative clause – scope of Full Bench's decision – whether Full Bench decided jurisdiction over unfair contracts issue – Industrial Relations Act 1996 (NSW), ss 106, 179(4) - PROCEDURE – industrial law – amendments – whether pleading amendments constituted new and separate application – amendments to arrangements/contracts pleaded and relief sought – substance of application to be assessed – Industrial Relations Act 1996 (NSW), s 108B - WORDS AND PHRASES – "jurisdictional error" – "must"

LEGISLATION CITED: Industrial Relations Act 1996

Adams (Deputy Federal Commissioner of Taxation) (Victoria)) v Chas S Watson Pty Ltd (1938) 60 CLR 545 Barker v Palmer (1881) 8 QBD 9 Batterham v QSR Ltd [2006] HCA 23; (2006) 225 CLR 237 Caterpillar of Australia Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 83 Craig v South Australia (1994–1995) 184 CLR 163 Crowe v UCS Developments Pty Ltd [2003] NSW IRComm 234; (2003) 130 IR 266 Fish v Solution 6 Holdings Ltd [2006] HCA 22; (2006) 225 CLR 180 Gedeon v Commissioner of NSW Crime Commission [2008] HCA 43; (2008) 82 ALJR 1465 Kirk Group Holdings Pty Ltd v WorkCover Authority NSW [2006] NSWCA 172; (2006) 66 NSWLR 151 CASES CITED: Manning v Thompson [1976] 2 NSWLR 380 Manning v Thompson [1977] 2 NSWLR 249 Manning v Thompson [1979] 1 NSWLR 384 Old UGC Inc v Industrial Relations Commission of New South Wales [2006] HCA 24; (2006) 225 CLR 274 Parisienne Basket Shoes Pty Ltd v Whyte (1937–1938) 59 CLR 369 R v Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd (1978) 142 CLR 113 Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 T D Preece & Co Pty Ltd v Industrial Court of NSW [2008] NSWCA 285; (2008) 177 IR 172 Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 Yim v Industrial Relations Commission of NSW [2007] NSWCA 77; (2007) 162 IR 62

Bakers Delight Holdings Limited (Applicant) Industrial Court of New South Wales (First Respondent) Illawarra Breads Pty Ltd (Second Respondent) PARTIES: South Coast Bakeries Pty Limited (in liquidation) (Third Respondent) South Coast Breads Pty Limited (in liquidation) (Fourth Respondent) Deanna Donna De Leeuw (Fifth Respondent) Mark Andrew Massie (Sixth Respondent)

FILE NUMBER(S): CA 40147/08; CA 40142/08

COUNSEL: B Walker SC, B Shields (Applicant) S E Prince (Second, Third, Fourth, Fifth and Sixth Respondents)

SOLICITORS: Deacons (Applicant) Maguire & McInerney Lawyers (Second, Third, Fourth, Fifth and Sixth Respondents)

LOWER COURT JURISDICTION: Industrial Court of New South Wales

LOWER COURT FILE NUMBER(S): IRC 6076 of 2005

LOWER COURT JUDICIAL OFFICER: Walton J, Boland J, Backman J

LOWER COURT DATE OF DECISION: 26 September 2007

LOWER COURT MEDIUM NEUTRAL CITATION: Illawarra Breads Pty Limited v Baker's Delight Holdings Limited [2007] NSWIRComm 223

- 17 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 040147/08 CA 040142/08

SPIGELMAN CJ ALLSOP P TOBIAS JA

Tuesday 2 June 2009 Bakers Delight Holdings Limited v Industrial Court of New South Wales

FACTS Ms De Leeuw and Mr Massie ("the fifth and six respondents") were the shareholders and directors of Illawarra Breads Pty Limited, South Coast Bakeries Pty Limited and South Coast Breads Pty Limited ("the second to fourth respondents"). The second to fourth respondents conducted bakeries, pursuant to franchise and license agreements with Bakers Delight Holdings Limited ("the applicant"). The applicant terminated each franchise and license agreement.

In an Amended Summons, the second to sixth respondents ("the respondents") sought relief against the applicant under s 106 of the Industrial Relations Act 1996 in the Industrial Court of New South Wales. By Notice of Motion of 7 May 2007, the applicant challenged the Industrial Court's jurisdiction. In response, by Notice of Motion of 2 August 2007, the respondents sought leave to amend the Amended Summons in the form of a Further Amended Summons.

The Full Bench of the Industrial Court granted leave to amend. The applicant invokes the supervisory jurisdiction of the Court, challenging the decision to allow the amendment and seeking to prohibit further conduct of proceedings under the Amended Summons and the Further Amended Summons.

HELD Privative Clause Issue – Section 179(4) (per Spigelman CJ, Allsop P and Tobias JA agreeing)

1. The applicant and the respondents proceeded on the basis that the applicant's Notice of Motion had been stood over until the Full Bench determined the respondents' amendment motion: [13] [18] [25] [69] [74].

2. The applicant's argument that the Further Amended Summons was futile did not raise the jurisdictional objections the applicant agitated on its Notice of Motion. It went no further than a submission that the Further Amended Summons did not cure the defects in the Amended Summons: [18] [21] [69] [74].

3. The futility argument was advanced without reliance on the primary documents expressly referred to in the pleadings. The Full Bench did not decide the issue of jurisdiction. It only dealt with the amendment application. The Full Bench did not misapprehend or misconceive its powers or functions: [21]–[24] [26]–[27] [29] [69] [74]. Craig v South Australia (1994–1995) 184 CLR 163; T D Preece & Co Pty Ltd v Industrial Court of NSW [2008] NSWCA 285; (2008) 177 IR 172 applied. Yim v Industrial Relations Commission of NSW [2007] NSWCA 77; (2007) 162 IR 62 distinguished.

4. There was no "decision" within the meaning of s 179(4) of the Act: [22] [69] [74].

Section 108B (per Spigelman CJ, Tobias JA agreeing)

5. The judgment required to be made with respect to the degree of divergence between the Amended Summons and the Further Amended Summons, and the conclusion that the latter was not, in substance, a new application, raises questions of fact and degree involving an evaluative judgment. Such questions are rarely susceptible to the exercise of a supervisory jurisdiction. If there be error at all, such errors are usually errors within jurisdiction: [46]–[47] [74]. Craig v South Australia (1994–1995) 184 CLR 163 applied. Parisienne Basket Shoes Pty Ltd v Whyte (1937–1938) 59 CLR 369 considered. Adams (Deputy Federal Commissioner of Taxation) (Victoria)) v Chas S Watson Pty Ltd (1938) 60 CLR 545; Barker v Palmer (1881) 8 QBD 9 referred to.

(per Spigelman CJ, Allsop P and Tobias JA agreeing)

6. The parties put their submissions in terms of whether the Full Bench's conclusion was "open". This constitutes a broader inquiry than that appropriate to the exercise of the supervisory jurisdiction with respect to a court: [52] [70] [74].

7. It was open to the Full Bench to conclude that, notwithstanding the scope and number of the amendments made to the contracts and arrangements, the pleadings still dealt with the same basic contract or arrangement. Also, the prayers for relief in the Amended Summons foreshadowed the possibility of variation. The changes did not so alter the substance of the application as to constitute a new application: [41] [53] [55] [57] [61]–[63] [65]–[66] [71]–[72] [74].

(per Allsop P, Tobias JA agreeing)

8. The question as to whether a party should have the opportunity to re-express its claim is not to be answered by overly concentrating on the text of the summons as a textual pleading question. Rather, it is the substance of the application for an order which is to be assessed, to which the text of the summons and the amendment is relevant: [73] [74].

Orders The summons is dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 040147/08 CA 040142/08

SPIGELMAN CJ ALLSOP P TOBIAS JA

Tuesday 2 June 2009 Bakers Delight Holdings Limited v Industrial Court of New South Wales Judgment 1 SPIGELMAN CJ: The applicant, Bakers Delight Holdings Limited ("Bakers Delight"), invokes the supervisory jurisdiction of the Court and seeks orders in the nature of prohibition and declaratory relief challenging the jurisdiction of the Industrial Court of New South Wales to hear proceedings instituted by the second to sixth respondents ("the respondents") against it for orders under s 106 of the Industrial Relations Act 1996 ("the Act"). 2 The individual respondents were the shareholders and directors of each of the three corporate respondents which conducted bakeries in, respectively, Shellharbour, Vincentia and Kiama, pursuant to franchise and license agreements with Bakers Delight. Bakers Delight terminated each of the franchise and license agreements. 3 The respondents seek relief under s 106 of the Act in an Amended Summons. By reason of the judgment of the Industrial Court granting leave to amend, further orders are sought pursuant to a Further Amended Summons. Bakers Delight challenges the decision to allow the amendment and also seeks to prohibit the further conduct of proceedings, even under the Amended Summons. 4 By Notice of Motion of 7 May 2007 in the Industrial Court, Bakers Delight challenged the jurisdiction of the Industrial Court to deal with the proceedings under the Amended Summons. The jurisdictional challenge was one of the reasons, perhaps the primary reason, that the respondents sought, by Notice of Motion of 2 August 2007, leave to amend the Amended Summons. 5 Bakers Delight's Notice of Motion had been referred to a Full Bench of the Industrial Court. The Full Bench dealt, and dealt only, with the respondents' Notice of Motion. 6 The Full Bench granted the respondents leave to amend over the objections of Bakers Delight. Its objections were based on two grounds. First, the amendment was barred by s 108B of the Act. Secondly, the amendment was futile, because it did not have the effect of overcoming the jurisdictional objections which Bakers Delight sought to agitate on its own Notice of Motion. 7 Section 108B(1) of the Act provides: "An application for an order under this Division in relation to a contract that has been terminated must be made not later than 12 months after the termination of the contract." 8 The Industrial Court applied the case law in that Court for the granting of amendments. In summary, the principle is that an amendment out of time should not be granted if, as a matter of substance, the amendment constitutes a new and separate application. Such an application would be statute barred by virtue of s 108B. Their Honours found that the Further Amended Summons was not a new and separate application. 9 The challenge to the proceedings as a whole gives rise to questions under s 179, the privative provision in the Act. This section provides that a decision of the Industrial Commission may not be reviewed, but also states: "(4) This section extends to proceedings brought in a court or tribunal in respect of a purported decision of the Commission on an issue of the jurisdiction of the Commission, but does not extend to any such purported decision of: (a) the Full Bench of the Commission in Court Session, or (b) the Commission in Court Session if the Full Bench refuses to give leave to appeal the decision." 10 The submissions on this matter in this Court were directed to determining whether the Full Bench had made a "decision … on an issue of jurisdiction" with respect both to the Amended Summons and the Further Amended Summons. It is convenient to deal with this issue first.

The Privative Clause Issue 11 The applicant accepts that the Full Bench did not deal with its Notice of Motion. Indeed, no order made, including the order of costs, is directed to that Notice of Motion. 12 Nevertheless, the argument put to the Industrial Court by the applicant asserting futility was based to some degree on the jurisdictional challenge which it had sought to agitate on its own Notice of Motion. 13 At a hearing of the matter prior to the argument on the amendment application, counsel then appearing for Bakers Delight, referring to her client's Notice of Motion, stated that: "This Notice of Motion … stays on foot and is stood over pending determination of whether or not the applicants' Notice of Motion seeking this amendment, or ability to file and serve a further amended summons in the form annexed to their Notice of Motion, is filed this morning and dealt with. Consequently this Notice of Motion fails, which leaves the current amended summons filed 5 May 2006 on foot, which would leave our Notice of Motion in place. So it may well be that these reference proceedings ought be stood over pending determination of whether or not the applicants are successful in their Notice of Motion." 14 The Full Bench dealt with the futility submission briefly as follows: "[21] … The proposed amendments, it was submitted, could not affect the proper construction of the franchise and allegedly related agreements that would determine whether the critical jurisdictional fact is established. Counsel submitted that a mere assertion by the applicants that they performed work pursuant to the terms of the franchise agreements was hardly determinative of the underlying question, which was one of construction. [22] The amendments, it was contended, were advanced in an attempt to cure what now seemed to be acknowledged defects in the nature of the relief sought by the applicants, and to influence the resolution of the issue of construction integral to whether the critical jurisdictional fact was established. To that extent, it was submitted the amendments were futile and should not be permitted, for that reason alone. [23] We are in no position, on what has been put to us thus far, to determine one way or the other whether the amendments contained in the proposed further amended summons are futile. We have not been taken at all to any evidence about whether or not the contracts or arrangements that are the subject of the pleadings are contracts or arrangements whereby work is performed in an industry nor have we been taken to the proposed further amended summons for the purpose of demonstrating its futility in a jurisdictional sense other than in the context of s 108B." 15 These few paragraphs in fact set out in full the extent to which the applicant relied upon this alternative basis for rejection of the amendment application. 16 In its written submissions to the Industrial Court, after referring to authority to the effect that the amendment should not be allowed if it were futile to do so, the applicant submitted: "5.2 The proposed Further Amended Summons significantly alters the structure and nature of the claims for relief made by the Applicants; by removing a series of claims for variations that were clearly beyond the jurisdiction of this Court, even if the critical jurisdictional fact was established. The changes offend the imperative found in section 108B that applications for orders outside the 12-month period after termination of the contract are not to be made (save for the 3-month extension found in section 108B(3) which is not relevant in these proceedings). The proposed amendments cannot affect the proper construction of the franchise and allegedly related agreements which will determine whether the critical jurisdictional fact is established. A mere assertion by the applicants that they perform work pursuant to the terms of the franchise agreements is hardly determinative of the underlying question, which is one of construction. 5.3 The amendments, by admission of the Applicants' Counsel, are advanced in an attempt to cure what now seem to be acknowledged defects in the nature of the relief sought by the Applicants, and to influence the resolution of the issue of construction integral to whether the critical jurisdictional fact is established. To that extent the amendments are futile and should not be permitted, for that reason alone." 17 In oral submissions before the Full Bench there was no elaboration of this written submission. 18 The futility argument was put on a very narrow basis. Furthermore, even as put it does not detract from the proposition that the substance of the applicant's challenge to the Industrial Court's jurisdiction under s 106(1) was not to be dealt with in accordance with the understanding set out at [13] above. 19 The restricted scope of the argument put on behalf of the applicant before the Full Bench is confirmed by the fact that only one of two affidavits filed on behalf of the applicant was read to the Full Bench. That affidavit contained no relevant material. Most significantly, the affidavit which annexed the franchise and license agreements was not read. The Court only had before it a skeletal outline in the form of a four page statement of agreed facts. 20 The applicant contended and contends that the issue can be determined on the pleadings without a detailed analysis of the factual basis. Relevantly, it submits, in its futility submission, that it is sufficient to look at what appears on the face of the Further Amended Summons. However, the Amended Summons makes assertions that work was required to be performed and gives particulars of specific clauses of the franchise agreements on which reliance is placed. As I have noted, these agreements were not before the Full Bench. In any event, the Further Amended Summons made other assertions of fact as to the work performed which were not explored in any manner, either in submissions or in judgment. 21 The futility submission went no further than a submission that the Further Amended Summons did not cure the original defect. However, no submission was advanced with respect to that defect. It should be understood as addressing, and only addressing, the amendment. No case was advanced with respect to the underlying jurisdictional challenge. 22 In my opinion, the applicant did not agitate before the Full Bench the issue which it asserts in this Court was the subject of a "decision". There was no "decision" within the meaning of s 179(4), set out at [9] above. 23 In order to satisfy the requirements of s 179(4) – that there was a "purported decision of the Commission on an issue of … jurisdiction" – the applicant relied on the judgment of this Court in Yim v Industrial Relations Commission of NSW [2007] NSWCA 77; (2007) 162 IR 62 especially at [16]-[30]. In that case the Full Bench had refused leave to appeal from the judgment of a judge at first instance and, accordingly, s 179(4)(b) was satisfied so long as there was a "purported decision … on an issue of jurisdiction" at first instance. 24 In Yim the Court held that there was such a decision by the first instance judge, even though he had made his orders on a particular basis, namely that the "application was premature" and said it was "unnecessary to deal with" the jurisdictional submissions. This Court decided that the judgment did answer the description of a decision on an "issue of the jurisdiction of the Commission". It did so in circumstances in which the first instance judge had formally dismissed the application for an order dismissing the summons for want of jurisdiction. (See at [18].) In the present case the Full Bench did not deal with the applicant's Notice of Motion in any way. Unlike the judge at first instance in Yim, it made no order. 25 It is also pertinent to note that in Yim both parties sought to have the trial judge and the Full Bench determine the jurisdictional question. The Full Bench refused leave. This is in contrast to the present case where the parties proceeded on the basis that the applicant's Notice of Motion had been stood over and the "futility" argument was put on a very narrow basis. 26 Indeed, as I have indicated, the futility argument was advanced without reliance even on the primary documents referred to expressly in the pleadings. In this case there was no jurisdictional matter that was "raised for determination" at all. (See Yim at [27].) 27 The supervisory jurisdiction of this Court is to be exercised with respect to the Industrial Court in the manner identified in Craig v South Australia (1994-1995) 184 CLR 163 especially at 177-178. To use the formulations in that judgment, where a matter has not been argued before a Court, it cannot be said that the Industrial Court 'misapprehended or disregarded the nature or limits of its functions or powers' or 'misconstrued the statute and thereby misconceived the extent of its powers'. 28 Justice Basten summarised the relevant principles in T D Preece & Co Pty Ltd v Industrial Court of NSW [2008] NSWCA 285; (2008) 177 IR 172 at [72]: "… The question for this Court is whether the Full Bench misunderstood the nature of its jurisdiction, or misconceived its duty, or failed to apply itself to the question which was prescribed by the statutory conferral of jurisdiction, or misunderstood the nature of the opinion which it was to form: see R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 432 (Latham CJ); Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420 (Jordan CJ); Coal & Allied [ Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194] at [31]." 29 In my opinion, the Full Bench was dealing, and dealing only, with an amendment application. It did not in any sense misapprehend or misconceive its powers or functions. 30 It is not, accordingly, necessary for this Court to consider the applicant's contention that the jurisdictional requirement of s 106(1) of the Act has not been made out. It is, however, appropriate to say that, had I been of a different view with respect to the application of the privative clause, I would not have granted relief in the exercise of the Court's discretion. 31 The High Court authoritatively established the approach required for determining this issue in a trilogy of cases. (Fish v Solution 6 Holdings Ltd [2006] HCA 22; (2006) 225 CLR 180; Batterham v QSR Ltd [2006] HCA 23; (2006) 225 CLR 237; Old UGC Inc v Industrial Relations Commission of New South Wales [2006] HCA 24; (2006) 225 CLR 274.) 32 That approach involves two steps: first, to determine whether a person performs work in an industry and, secondly, to identify the set of arrangements whereby that work is performed. The second step cannot, in my opinion, be addressed on the limited evidence before the Full Bench or this Court. 33 The Full Bench was never asked to undertake this task and, indeed, did not even have the rudimentary materials which would enable it to be done. Additional evidence was tendered in this Court. However, the submissions to this Court did not address the High Court's two steps. 34 Even if I had come to a different view on s 179(4), by reason of the narrow basis on which the applicant argued the "futility" submission, both in the Full Bench and here, together with the absence of any factual inquiry before the Full Bench and the limited amount of additional evidence tendered in this Court, this Court should apply its policy of restraint with respect to the substantive challenge at this stage. (See Kirk Group Holdings Pty Ltd v WorkCover Authority NSW [2006] NSWCA 172; (2006) 66 NSWLR 151 at [46]-[48]; Yim supra at [77], [82].)

The s 108B Issue 35 The parties in this Court accepted that the Full Bench had applied the correct test to determine the s 108B issue in accordance with its earlier authorities, particularly Crowe v UCS Developments Pty Ltd [2003] NSW IRComm 234; (2003) 130 IR 266. The Full Bench said in Crowe at [52]: " … What then, is the effect of the amendment sought to the summons? Does it constitute a separate application for an order under the Division or should it be characterised as being an amendment to an application for an order already made and with respect to which s 108B has no effect? Or, to put the matter in a slightly different way, does the amendment, in substance rather than in mere form, give rise to an application for an order declaring wholly or partly void or to vary the same contract or arrangement as that identified in the original application, or does it amount to an application for an order in respect of a different contract or arrangement?" 36 On the s 108B issue the Full Bench, in the present case, gave the following reasons: [10] The proposed further amended summons represents a very significant restructuring and alteration of the amended summons. Indeed, the extent of the restructuring and alteration, prima facie, raises a real question of whether the proposed further amended summons is a new and different application by the applicants. However, any inquiry to determine whether an amended summons is statute barred by virtue of s 108B is not to be directed to the quantity of the amendments but rather their true nature or character, in the sense that the question has to be asked whether, in substance, the amendments constitute an application of such a different quality or character to the original application that it may be said the application incorporating the amendments has not been made within the time prescribed by s 108B. [11] The essence of the applicants' complaint in the amended summons was that franchise and license agreements between the applicants and the respondent in relation to Shellharbour, Kiama and Vincentia, and a 'Disclosure Document' provided to the applicants by the respondent prior to the applicants entering into the franchise agreements were, jointly and severally, an unfair contract within the meaning of s 105 of the Act. Significantly, and in addition, it was also claimed that 'the arrangements between the applicants jointly and severally and the respondent', together and severally with the franchise and license agreements and the Disclosure Document, were unfair contracts. The amended summons was quite vague about what constituted the 'arrangements'. [12] In the further amended summons the contracts and arrangements that were asserted to be unfair were: The '1st Arrangement', which essentially involved the system of control exercised by the respondent over the nature, operation and terms of work, training and ongoing support, etc, of the applicants in the performance of work by the applicants at the various locations; The Operations Manuals and directions provided from time to time by the respondent in respect of the operation of any Baker's Delight Bakery by the applicants; The Vincentia Franchise Agreement; The Kiama Franchise Agreement; The Shellharbour Franchise Agreement; An arrangement which encompassed the entirety of the above and being an overall arrangement whereby each of the Baker's Delight stores were operated by the respective applicants. It was noted in the proposed further amended summons that a reference to the 'Franchise Agreements' meant the Shellharbour Franchise Agreement, the Vincentia Franchise Agreement, and the Kiama Franchise Agreement." 37 Their Honours concluded at [15]: "It is apparent that the franchise and license agreements and the Disclosure Document were common to both summons; these contracts or arrangements lie at the heart of the applicants' claims. Whilst the amended summons contained a vague reference to other arrangements, these have now been elucidated in the proposed further amended summons. In substance, the contracts and arrangements pleaded in the proposed further amended summons are the same as those pleaded in the amended summons, although the applicants have sought to be more precise in identifying what are the contracts and what are the arrangements in respect of which they seek relief, with particular reference to the fundamental question of performance of work under each of those contracts or arrangements. We do not regard this aspect of the amendments as constituting an application of a different character." 38 The Full Bench also dealt with a submission on the part of the applicant to the effect that the change in the relief sought was so substantial as to manifest a significantly different character for the proceedings under the Further Amended Summons. 39 The Full Bench set out those differences and concluded: "[18] Despite the significant differences between the summonses in the way the relief claimed was framed, ultimately the applicants, in both summonses, sought variations to the contracts or arrangements designed to protect their interests, including their income and the level of support provided by the franchisor, whilst the franchise businesses were operating as going concerns, and to protect their interests in the event the contracts or arrangements were terminated. We note that the orders sought in relation to the payment of monies in connection with the contracts or arrangements declared void or varied, are essentially the same in both summonses. We would have expected that if the relief claimed for the alleged unfairness in the proposed further amended summons was of a different character to that claimed in the amended summons, the money orders sought would necessarily have been different. [19] The summonses also differ to the extent that the proposed further amended summons provides more information regarding pre-contractual representations made to the franchisees and the alleged inadequacy of training provided by the franchisor. It also contained additional assertions regarding the nature of the claimed unfairness, for example, assertions relating to the inadequate level of income received by the franchisees and the degree of control exercised by the franchisor to the detriment of the franchisees. This additional material, however, did not, in our opinion, alter the fundamental character or quality of the claims being made by the applicants against the franchisor to the extent that the proposed further amended summons should be regarded as a claim for relief that had not previously been advanced." 40 I note that, although the Full Bench did not make reference to this matter on the question of the change in the relief, the Amended Summons sought a prayer in par 8 to the effect: "Such further or other orders as to the Commission seems just in all the circumstances of the case." 41 Accordingly, flexibility permitting variation of the relief was part of the Amended Summons. I agree with the Full Bench's reasoning on the issue of relief but I would add to it a reference to the fact that the original prayers for relief clearly foreshadow the possibility of variation. 42 The distinction between jurisdictional error and error within jurisdiction is clear in principle, but often difficult in practice. (See, eg, Craig supra at 178; Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [163]; Caterpillar of Australia Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 83 at [70]-[75].) 43 The facts of the present case are analogous to those in Parisienne Basket Shoes Pty Ltd v Whyte (1937-1938) 59 CLR 369, the foundational Australian authority on this area of the law. In that case, it was held that justices who determined that an information had been laid before the expiration of a limitation period had, if they committed any error, committed an error within jurisdiction. There is a long line of authority that questions of time do not raise jurisdictional issues. (See Barker v Palmer (1881) 8 QBD 9.) 44 The word "must" is not necessarily an indication that a jurisdictional element is involved. (See Parisienne Basket Shoes supra at 374 where the word was "shall". See also Adams (Deputy Federal Commissioner of Taxation) (Victoria)) v Chas S Watson Pty Ltd (1938) 60 CLR 545 at 553, 559.) 45 It is, however, the immediate context of s 108B(2) which may suggest a jurisdictional meaning for "must". It provides: "The Commission does not have jurisdiction to extend the time for making any such application or, subject to subsection (3), to accept an application made after the time prescribed by subsection (1)." 46 The judgment required to be made about the degree of divergence between the Amended Summons and the Further Amended Summons, and the conclusion that the latter was not, in substance, a new application, raises questions of fact and degree involving an evaluative judgment. Issues of fact and degree are rarely susceptible to the exercise of a supervisory jurisdiction because they seldom have the stark quality required for a finding that the respective formulations in Craig at 177-178, to which I have referred, have been made out: a 'misapprehension of the limits of its functions or power' or a 'misconception of the nature of the function which it is performing or the extent of its powers'. 47 Such a ruling appears to me to involve, if there be error at all, an error within jurisdiction. It is difficult to conceive of an error on a matter such as this as constituting a jurisdictional error. 48 In the present case, the respondents accepted that a decision under s 108B(1), which I have set out at [7] above, was jurisdictional. I proceed on that basis. 49 It is possible that the requirement, that an "application" be filed within the prescribed period from termination is a jurisdictional fact in the sense of "a preliminary question on the answer to which … jurisdiction depends". (R v Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd (1978) 142 CLR 113 at 125; Gedeon v Commissioner of NSW Crime Commission [2008] HCA 43; (2008) 82 ALJR 1465 at [44] n 31.) The "application" is of the character found to be jurisdictional in Manning v Thompson [1976] 2 NSWLR 380 per Yeldham J; [1977] 2 NSWLR 249 (Court of Appeal); [1979] 1 NSWLR 384 (Privy Council). 50 Once it is accepted that a fact is jurisdictional, then a court exercising supervisory jurisdiction is entitled to determine the objective existence of the fact. The court's reluctance to intervene in the case of a judgment requiring an evaluative judgment is no longer applicable. (See, eg, Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 at [36]-[41], [89].) 51 However, the matter was not put in this way. Both parties addressed the Court in terms of whether it was "open" to the Full Bench to come to the conclusion that it did. The applicant contends that the Full Bench's decision – to the effect that the Further Amended Summons was not of a sufficiently different character from that claimed in the Amended Summons – was not open. 52 In the context of the exercise of a supervisory jurisdiction the applicant must satisfy the Court to a high level. The terminology of whether a finding was "open" is capable of a broader application than that appropriate to the exercise of a supervisory jurisdiction with respect to a decision by a court. Such terminology should not be encouraged in the context of the exercise of the supervisory jurisdiction over a court. 53 In its written submissions the applicant listed all of the changes between the Amended Summons and the Further Amended Summons. As the Full Bench indicated, they were substantial. That does not detract from the above analysis of the Full Bench to the effect that, as a matter of substance, the pleadings were still dealing with the same basic contract or arrangement. I agree with this conclusion. 54 In oral submissions the applicant focused primarily on the addition, for the first time, of a pleading of a "First Arrangement". No submissions were directed to the second arrangement in the new pleading, which related to documentation provided to the individual applicants prior to entering into the first of the franchise agreements. 55 It appears on the face of the Further Amended Summons that the "First Arrangement" is new in the sense that nothing of that precise character had been pleaded before. Nevertheless, in my opinion, the Full Bench was correct to conclude that that pleading was only an additional way of setting out the nature of the pre-contractual interaction between the parties and asserting a legal effect for that process. 56 As the Full Bench pointed out, there had been a reference to an "arrangement" in the Amended Summons. The first declaration sought by the respondents in the Amended Summons was: "A declaration that for the purposes of the section 105 of the Industrial Relations Act 1996 (NSW) (the 'Act') the contract or arrangement between the Applicants and Respondent consisted of: …" franchise and license agreements and the "Disclosure Document" (emphasis added). The pleading went on: "and the agreements between the Applicants jointly and severally and the Respondent, are together and severally referred to in this Summons as the 'Contract'". 57 The reference to the "contract or arrangement" in the declaration originally sought indicated that a further arrangement existed. Furthermore, the word "Contract", wherever appearing, included both the documents and "the arrangements". 58 Significantly, the second order sought in the Amended Summons was: "A declaration that the Contract is an unfair contract within the meaning of section 105 of the Act."

By definition, that extended to the arrangement. 59 Furthermore, the addition of various clauses to the franchise agreement was said, by the third order sought in the Amended Summons, to be: "An order varying, ab initio or from some other time, the Contract so as to reflect the following additions … ." 60 Further references to the "Contract" do not need to be set out. 61 The order seeking that additional clauses be added to each franchise agreement was stated to be by way of variation of the Contract, as defined. Aspects of the "first arrangement" refer to some of the originally proposed additional provisions of each franchise agreement, for example, a clause requiring training to be conducted by a "qualified and competent trainer" (Amended Summons Order 3(r) and Further Amended Summons pars 14, 15, 16, 19, 27) and a clause preventing threats by any Bakers Delight representative (Amended Summons Order 3(g) and Further Amended Summons pars 18, 20). 62 Indeed, the Amended Summons at pars 10 and 11 had expressly pleaded training, which was asserted to be inadequate and not in accordance with representations made. The paragraphs of the Further Amended Summons to which I have referred in the preceding paragraph are appropriately characterised as particulars of this original pleading. 63 Finally, it is pertinent to note that the Further Amended Summons included a new pleading under the heading "The Interrelation of the Contracts". This asserts that the franchise agreements, together with the first arrangement, are included in an "overall arrangement whereby each of the Bakers Delight stores were operated by the respective" respondents. These matters were pleaded to be arrangements or contracts "whereby work was performed in the baking franchise industry". This pleading repleads, in a more direct form, what is implicit in the definition of "Contract" in the Amended Summons. 64 The applicant did not direct any submissions to the pleading of the "overall arrangement" as distinct from the "first arrangement". Accordingly, it is not necessary to consider the way in which that is a legitimate development of the original pleading, save to point out that a number of the provisions which the Amended Summons sought to expressly include in each franchise agreement are based on the interrelationship amongst the contracts and the arrangements pleaded. That interrelationship appears to be based in part on the new pleading of an overall arrangement. 65 In my opinion, the Full Bench was correct to conclude that further particularisation of the "arrangement", as originally pleaded, was appropriate. Furthermore, the Full Bench was also correct to conclude that the amendments were sufficiently connected with the original pleading such that the Further Amended Summons did not plead a fundamentally different contract or arrangement. The Full Bench correctly determined that, notwithstanding the scope and number of the amendments made, the changes did not so alter the substance as to constitute a new application. 66 It is sufficient, on the submissions in this Court, to conclude that the conclusion of the Full Bench was open. In my opinion it was open.

Conclusion 67 The order I propose is: The summons is dismissed with costs. 68 ALLSOP P: I have had the advantage of reading the reasons of the Chief Justice. I agree with the orders proposed by him. 69 I agree with the Chief Justice's reasons on the privative clause issue. 70 As to the s 108B issue, the parties approached the argument on the basis of assessing whether it was "open" for the Full Bench to come to the conclusion that it did. No debate took place as to the appropriateness of that formulation by reference to the underlying conception of jurisdictional error, the cases explanatory of it and the operation of s 179. 71 It is sufficient to dispose of the application to demonstrate, as the Chief Justice has done clearly in his reasons, that the Full Bench was correct in its conclusion that the amendment was not statute barred. I agree with the Chief Justice's reasons in this regard also. I would only add that the Amended Summons plainly sought in prayer 1 to encapsulate within the meaning of "Contract" the whole of the relationship between the parties. The word "Contract" was defined as follows: "… (the documents in paragraphs 1(a)-(g), and the arrangements between the Applicants jointly and severally and the Respondent, are together and severally referred to in this Summons as the 'Contract')." 72 The Further Amended Summons was a reworking and elaboration of the essentials that had been thus described in the Amended Summons. 73 As the approach of the Full Bench demonstrated in this case, the question as to whether a party should have the opportunity to re-express its claim is not to be answered by overly concentrating on the text of the summons as a textual pleading question. Rather, it is the substance of the application for an order which is to be assessed, in which assessment, of course, the text of the summons and the amendment is relevant. 74 TOBIAS JA: I agree with the orders proposed by Spigelman CJ and with his Honour's reasons. I also agree with the additional observations of Allsop P. **********

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