Case: Bank of Queensland Limited v Industrial Court of New South Wales (No. 2) [2008] FCA 1435
Outcome: considered
Subsequently, on 19 September 2008, Logan J ordered that a number of paragraphs of the amended defence of the OMB parties be struck out: Bank of Queensland Limited v Industrial Court of New South Wales (No. 2) [2008] FCA 1435. 18 On 25 September 2008, the OMB parties filed an application for leave to appeal from the judgment of his Honour, Logan J, and that application, together with any ensuing appeal, will be heard by a Full Court on 26 November 2008. In the meantime, Greenwood J vacated the dates for the hearing of the Bank's Federal Court proceeding commencing on 13 October 2008, pending the hearing of the leave application and any ensuing appeal from Logan J's judgment. 19 This is the state of play in the Bank's Federal Court proceeding at the time of writing these reasons. 20 Traderight (New South Wales) Pty Ltd ('Traderight') (together with a number of individuals) commenced proceedings in the Equity Division of the Supreme Court claiming relief pursuant to ss 82 and 87 of the TPA; ss 68 and 72 of the FTA (NSW); s 106 of the IR Act; s 12GM of the Australian Securities and Investment Commission Act 2001 (Cth) ('the ASIC Act'); and damages for breach of contract and breach of duty, in relation to an OMB Agreement between the Bank and Traderight to establish an owner managed branch of the Bank in Castlereagh Street, Sydney ('the Traderight Supreme Court proceeding'). The amended statement of claim sets out a series of meetings between Bank representatives and a number of the plaintiffs, a sequence of contended representations at various times, reliance upon the representations, the falsity of those representations, detriment and consequential loss and a claim for remedial orders. The pleading contends that particular agreements including the OMB Agreement arising out of the particular events are susceptible of orders declaring the agreements void ab initio (among other orders). 27 The OMB parties seek that all the matters (including the Bank's Federal Court proceeding) be heard by one court and one judicial officer; the Supreme Court (as being the only court that can hear all matters). Greenwood J did not agree to transfer the Bank's Federal Court proceeding to the Supreme Court. The next best thing the OMB parties can ask for (in order to avoid multiple trials of fact on the same issues and involving the common parties, witnesses etc), is that the rest of the related matters be transferred to the Supreme Court. 28 Further, any proposal put forward in relation to cross-vesting must deal with the reality of the Traderight proceedings and the fact that the only court that can hear the entirety of the Traderight proceedings is the Supreme Court. 29 The Traderight proceedings are entirely unaffected by the Bank's Federal Court proceeding. The Traderight Group is not a party to that proceeding. 30 The Bank's preliminary attempt to strike out the s 106 component of the Traderight proceedings failed. This means that, regardless of what Greenwood J decides in respect of the Bank's 'constitutional challenge', the s 106 issue will be alive in the substantive proceedings in respect of at least the Traderight proceedings that are already before the Supreme Court. 31 The only court that has jurisdiction to hear all aspects of the case is the Supreme Court. The Bank accepts that this Court does not have jurisdiction to hear the s 106 claims. 112 When I put this to senior counsel for the Bank parties during the hearing of the motions, he responded: 'It's an issue which we ventilated with his Honour Logan J the week before last in the strike-out application. It's a complex argument. We don't intend, if your Honour doesn't mind, ... to ventilate it fully before your Honour but we can tell your Honour it's been raised with his Honour Logan J as part of the strike-out application.' 113 His Honour's (Logan J's) response to that ventilation is instructive. At [19] of his Honour's reasons, he observed: 'There is Full Bench authority in the New South Wales Industrial Commission, in Court Session, which would support an argument that "the making of representations known to be acted upon by a person in considering entry into a contractual relationship and on the basis of which representations an agent as the representor intends the person to act may well, quite apart from any other connection with the contract subsequently made, be itself an arrangement whereby work is performed in an industry, or, at the least, a collateral arrangement to such a contract or arrangement": Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420, at 432, [28]. Contrary to the submission of the BoQ parties, it is thus not impossible for a representation to constitute an "arrangement". Further, if it is one, as the amended summons apparently alleges, and the submissions of the BoQ parties seem to ignore, whereby a person performs work in an industry, that arrangement, if unfair, may, all other things being equal, be the subject of relief under s 106 of the NSW Act. The Independent Contractors Act may or may not intrude on the ability to grant that relief, but that is not a matter for summary resolution.' 114 For these reasons, I do not think there is any utility in adjourning these motions to await the outcome of the Bank's Federal Court proceeding. It would be a total injustice to the OMB parties; at its present rate of progress, it could take years. For the same reasons, it is more appropriate (there can be no argument that the Rossmick Federal Court proceeding and the Jude Federal Court proceeding are respectively related, in the relevant statutory sense, to the Rossmick IC proceeding and the Jude IC proceeding) that these proceedings be determined by the Supreme Court; the same court will then hear all four proceedings. 115 On this basis alone, I am of the view that these proceedings should be transferred to the Supreme Court.