Case: Bank of Queensland Ltd v Industrial Court of New South Wales [2008] FCA 324
Outcome: considered
Paragraphs 110 to 116 of the amended defence make allegations as to the effect of particular clauses within an OMB Agreement either alone or, as the case may be, when read with what is described as "the Fit-out Loan" and then plead that the clause or clauses concerned do not constitute a contract for services. In an earlier interlocutory judgment in respect of the then defence, Bank of Queensland Ltd v Industrial Court of New South Wales [2008] FCA 324 at [92] to [94] Greenwood J ordered to be struck out particular paragraphs which did no more than set out a contended construction of an OMB Agreement to be struck out. In the subsequent interlocutory appeal, Rossmick No 1 Pty Ltd v Bank of Queensland Ltd [2008] FCAFC 81 at [12] [13], the Full Court expressed agreement with the "general thrust" of this approach. 37 Two features of the pleading rules found in O 11 of the Federal Court Rules might be noted: (a) a pleading should state material facts O 11 r 2; and (b) it is nonetheless permissible to raise a point of law in a pleading O 11 r 9. As Greenwood J emphasised in his interlocutory judgment (at [92]), the relevant fact is the entry into the OMB Agreement. It would, in my opinion, be permissible, for example, to raise in a defence a consequential point of law namely, that, on its true construction, the OMB Agreement was not a "services contract" for the purposes of the Independent Contractors Act . The paragraphs concerned do more than that and instead offer a series of contended for constructions of the agreement or parts thereof. My understanding of the Full Court's agreement with the "broad thrust" of the approach taken by Greenwood J is that such contentions were a matter for submissions at trial, not pleading. 38 There was debate before me as to whether paras 110 to 116 of the amended defence fell within or outside the type of pleading that Greenwood J had ordered to be struck out. It seems to me that the paragraphs fall within the type which his Honour considered ought to be struck out. 39 These paragraphs of the amended defence are directed to the subject of an alleged inability on the part of those who became parties to an OMB Agreement independently to assess the viability of the business governed by that agreement because the Bank did not make available the requisite information. The end to which they are directed is the drawing of a conclusion that those parties were not "independent contractors" for the purposes of the Independent Contractors Act . 40 The point taken for the BoQ parties is that these allegations are not relevant to the drawing of that conclusion. 57 In my opinion, a more accurate critique is offered by the BoQ parties. Their contention is that the paragraphs plead characterisations of the OMB Agreements in a similar way to that which Greenwood J found in his interlocutory judgment and later the Full Court found to be inappropriate in a pleading. I have already referred to his Honour's and the Full Court's views in my consideration above of paras 110 to 116 of the amended defence. 58 Another feature of the allegations in paras 137 to 148 of the amended defence is highlighted by the BoQ parties in their submissions, namely allegations concerning the subjective intention or purpose of the Bank. The submission is advanced, with which I agree, that the Bank's subjective intention or purpose is not relevant to whether a respondent who is a party to an OMB Agreement ought to be characterised as an "independent contractor" for the purposes of the Independent Contractors Act . The task is one of objective characterisation having regard to the terms of an agreement and the way it was carried out. The existence or otherwise of goodwill vested in a non-bank party to an OMB Agreement may also be relevant. The subjective intentions or purposes of either such a party or the Bank, except insofar as they may manifest themselves in the way an agreement was carried out, are not facts relevant to that characterisation task. 59 Paragraphs 137 to 148 of the amended defence should be struck out. 60 The BoQ parties advance the submission that paras 162, 163(a) and 163(c) of the amended defence are founded upon the premise that this Court is precluded from adjudicating upon the issues raised by the amended application by reason of a privative clause found in s 179 of the NSW Act. The response of the OMB parties is that these paragraphs are replications of paragraphs in the defence as originally filed the striking out of which was sought before but declined by Greenwood J. Regard to his Honour's interlocutory judgment at [101], [102] and [104] bears out the correctness of the OMB parties' response. As the OMB parties further contend, the declining to strike out these paragraphs was not challenged in the interlocutory appeal. 61 The proposition that a State Parliament can by a privative clause in its legislation preclude this Court from exercising a jurisdiction with which it is invested by s 39B of the Judiciary Act 1903 (Cth) is certainly startlingly. However, given that there has already been a failed attempt to strike out the paragraphs which was not pursued in the interlocutory appeal, it seems to me that the better course is not to strike out the paragraphs concerned but to leave the issues of law which they raise for determination at trial. The BoQ parties are not in any way precluded by that course from then pursuing their submission that there is no merit in the issues raised by those paragraphs. Assuming that the OMB parties chose to press those issues, I doubt that their consideration will much add to the length of the trial. 62 Paragraph 163(f) of the amended defence advances a contention that the determination of the issues raised by the amended defence require a trial of the facts. Even allowing for the reduction in the number of issues which will be a consequence of my ordering the striking out of various paragraphs, it is still the case that a trial of the facts is required. I note that Greenwood J declined in his interlocutory judgment (at [104]) to strike out an earlier formulation in the defence of what is now sub-para 163(f). I decline to strike out sub-para 163(f). 63 Sub-paragraph 163(g) of the amended defence, properly understood, pleads a proposition that the passage from its reasons for judgment which I have quoted above demonstrates the Full Court accepted in its interlocutory judgment namely, that the determination of whether the Independent Contractors Act operates to the exclusion of s 106 of the NSW Act is a matter that will require an examination of more than just the terms of the OMB Agreement. I note that Greenwood J (at [104]) declined to strike out an earlier formulation of this sub-paragraph and that this was not challenged on the interlocutory appeal. I likewise decline to strike out sub-paragraph 163(g). 64 I will hear the parties as to whether, given the extent to which paragraphs of the amended defence have been ordered to be struck out, leave to file and serve a further amended defence ought to be granted and in respect of the costs of the notice of motion. I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 19 September 2008 Counsel for the Applicants: Mr S Couper QC Counsel for the Applicants: Mr A Moses Solicitor for the Applicants: HWL Ebsworth Lawyers Counsel for the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth and Fifteenth Respondents: Mr J Peden 18 July 2008 Mr J Sweeney 22 July 2008 Solicitor for the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth and Fifteenth Respondents: McCabe Terrell Lawyers Date of Hearing: 18 &amp; 22 July 2008 Date of Judgment: 19 September 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1435.html