Gough and Gilmour Holdings Pty Ltd & Ors v Caterpillar Australia Ltd & Ors [2009] HCATrans 210 (4 September 2009)

Last Updated: 10 September 2009

[2009] HCATrans 210

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S103 of 2009

B e t w e e n -

GOUGH AND GILMOUR HOLDINGS PTY LIMITED

First Applicant

HARCOURT DAVID GOUGH

Second Applicant

ANTHONY LANSLEY GILMOUR

Third Applicant

and

CATERPILLAR AUSTRALIA LIMITED

First Respondent

CATERPILLAR INC.

Second Respondent

CATERPILLAR SARL SINGAPORE BRANCH

Third Respondent

CATERPILLAR OVERSEAS CREDIT CORPORATION SA

Fourth Respondent

INDUSTRIAL COURT OF NEW SOUTH WALES

Fifth Respondent

Application for special leave to appeal

FRENCH CJ
GUMMOW J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 SEPTEMBER 2009, AT 12.18 PM

Copyright in the High Court of Australia

__________________

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friends, MR M.J. KIMBER, SC and MR A.B. GOTTING, for the applicants. (instructed by Harmers Workplace Lawyers)

MR I.M. JACKMAN, SC: May it please the Court, I appear with my learned friend, MR A.R. MOSES, SC, for the first to fourth respondents. (instructed by Mallesons Stephen Jaques)

FRENCH CJ: Yes, Mr Walker.

MR WALKER: Your Honours, this is a case which, in our submission, presents a group connected but with individual merit of points warranting the grant of special leave. In relation to the very important issue of the so-called jurisdictional hinge provisions in question in this form of litigation, could I commence by taking your Honours in volume 3 of the application book to what I will call composite findings recognised in the Court of Appeal as having been made at first instance and on appeal - - -

GUMMOW J: Mr Walker, perhaps before we descend into this pit, what do you say about Mr Jackman’s point as to the legislation having moved on, paragraph 40 on page 1001, namely, section 106 of the Fair Work Act 2009, section 26 and section 7 of the Independent Contractors Act?

MR WALKER: Your Honour, what we say is what we have said in our written reply, namely, that these remain as live issues. It is not true that this jurisdictional hinge will play no part in litigation between parties under - - -

GUMMOW J: The question is one of the range of parties, is it not?

MR WALKER: So far as the New South Wales statute is concerned, yes, but, in our submission - - -

GUMMOW J: There will not be continued disputes between parties of the character or the parties here, will there?

MR WALKER: Well, on the industrial flavour point, yes, there most certainly will. Your Honours may have noted that one of our very points is that the interposition, as we put it, of what the Industrial Court regarded as a mere conduit for the supply of the services of my two natural person clients was no requirement of Caterpillar, so partnerships, natural persons, sole traders and the like, particularly in franchise positions, perfectly likely still to be caught by these provisions in their formally formerly continued form in New South Wales.

That most certainly will include, particularly in the franchise position, finding of character in this case including that there is an element of franchise, as there was an element of employment, character which has not been denied by reversing any finding of fact in the certiorari and prohibition proceedings which, of course, require very considerable deference to be given to the conclusion on questions of jurisdictional fact by the tribunals in question. So, yes, there is continuing currency, not merely under this but under what we have called in our reply submission the mirror provisions.

Your Honours, what we had here was something in the nature of franchise, including flavour of employment, under arrangements which interlocked and depended upon, above all else, trust and confidence in the personal efforts and qualities and character of natural persons, two named persons who had, of course, equity interest as well as management control of the corporate applicant, but it was the natural persons to whom Caterpillar looked. It is without doubt the case that at first instance, on appeal to the Full Bench and then in the judicial review in the Court of Appeal clear to demonstration, everyone accepts, that very considerable work was done. It is also clear to demonstration that it was work in an industry. Then when one sees - - -

GUMMOW J: What is the special leave point, Mr Walker?

MR WALKER: The special leave point is that first – there are several – first - - -

GUMMOW J: We have laid down the principles or the application of them that gives rise to various discontents.

MR WALKER: From a combination - - -

GUMMOW J: We do not sit here to alleviate those - - -

MR WALKER: No, but your Honours most certainly sit to supervise first a proper understanding of the principles you have laid down where there has been a purported extension of what your Honours have laid down by way of principle.

GUMMOW J: What is the extension?

MR WALKER: The extension is to have taken the unremarkable proposition that the statute relates to matters industrial, not a novelty when your Honours uttered it in Fish. Add that to the second reading speeches for the amendments which were not before this Court in Fish concerning a solicitude for the continued exercise of commercial jurisdiction by the Supreme Court and to say that there is therefore by means of the familiar phrase “industrial flavour” a bar, a jurisdictional bar, not hitherto found in the words on cases where a large franchise with its inevitably commercial character nonetheless presents under other relevant jurisdictional limits such as remuneration caps cases where the merits are sought to be tried of unfair dealing.

So that the first special leave point is that the Chief Justice, as we have pointed out in our written submission, has repeatedly, and as a major part of his reasoning, treated what he calls industrial flavour as a jurisdictional criterion. That is the first point.

GUMMOW J: Do you seek to get something out of the enactment of section 106(2A) which was at a time that meant it was not considered in the cases.

MR WALKER: Between the Court of Appeal and the High Court in Fish. It did not apply in Fish because Fish was not pending, it had been disposed of. Yes, of course, we do.

GUMMOW J: What do you get out of it that is different?

MR WALKER: The main thing we get out of it is that the response of Parliament to the decision of the Court of Appeal in Fish was to expand jurisdiction to include the capacity to vary those matters which were collateral or related so long as they had the requisite modicum of connection with the doing of work by way of their connection or relation.

FRENCH CJ: That is how you get into the so-called, what is it, fourth assurance and last resort policy?

MR WALKER: That is right. So we accept that if this had been determined under the law in Fish, a very different approach would have been taken, probably by pleaders, but certainly by the tribunals in question, but this was being determined under another law. So the first thing to be said about the legislative response to Fish – and the principles pronounced in this course in Fish, of course, were pre that response, or to the law pre that response – the first thing to be said it was an expansion, not a detraction, from jurisdiction. Associated reforms added - - -

GUMMOW J: What did the Court of Appeal say about the significance of it?

MR WALKER: They attributed no significance to that - - -

GUMMOW J: Were they asked to?

MR WALKER: They most certainly were, most certainly were, I can assure your Honours. Section 179(4), part of the same package, was also relied upon in a way to which I am going to come. It is not unfair to the reasons of the Chief Justice below to put it this way. There was more quotation of and attention paid to Hansard than there was to enacted words in relation to the response to the Court of Appeal in Fish. The industrial flavour which his Honour correctly quoted from the political speeches in Parliament have been elevated, we submit, dislocated wrongly from Parliament to the judicial attribution of a limit that the Parliament could have added but did not.

The background against which that use of Hansard, we submit entirely wrong use of Hansard, needs to be evaluated is this. It had long been established that apart from the humble trucking work cases to which we have made reference as underlying the very beginning of the 88F regime, apart from them, it had long been established that so-called franchise cases, even something as commercial and entrepreneurial as share farming, was within the ambit of this legislation. That did not prevent it from being industrial in the relevant sense, namely, there needed to be a contract or arrangement whereby work was performed in an industry.

In our submission, there has been an entire misuse of the political flavour in an area where there were most certainly trade-offs to be performed, and you can read them explicitly in the quoted Hansard, where the assurance of continued industrial flavour has been given new meaning by the Chief Justice, a meaning that does not emerge from anything in this Court’s decision in Fish and the associated cases in the trilogy. Why do I say it does not emerge in Fish? That is because Fish, with great respect, emphasised by its focus on the so-called hinge provision that there had to be identification of a contract or arrangement whereby work was performed in an industry.

Now, “in an industry or work performed” are words which, on the face of the findings that happen to be set out and of course are not challenged in the Court of Appeal – 913 to 919 of the application book, volume 3, I will not take you there now – on the face of those findings of the arrangement between the parties incorporating the requirement that the two gentlemen work, in face of the Chief Justice’s acceptance that the word “or”, about which so much was made in the Court of Appeal in the critical clause that you will find on page 910 in paragraph 31, you have to remain engaged or investing, the Chief Justice accepted that the informal, query, non-legally binding arrangement between the parties, all of which is within jurisdiction, of course, the Chief Justice finds at his paragraph 128 on page 951 that that had no significance, that there was never a choice available for these managers to become investors.

Now, that, in our submission, means that there was a requirement, breach of which would legally put the company into breach, but breach of which was breach of a requirement informal or non-binding legally within the ambit of the expanded definition of “contract” in the Act for these men to work under the combined or composite arrangements which included the distributorship agreement. Now, what has happened, in our submission, is that there has been an entire misapplication or misperception by the Chief Justice of something in your Honours’ reasons in Fish along the lines of so-called industrial flavour, if I can use that in the same sentence as Fish, to be found from Hansard.

Now, your Honours, there is nothing about industrial flavour apart from the obvious proposition that the Act has to do with things industrial. Things industrial, that epithet industrial, is plainly satisfied in section 106 because the hinge provision refers to contract or arrangement whereby work is performed in an industry. Fish itself, it must be recalled, was treated by this Court as showing work being performed in an industry. This was not a case in Fish where the matter could be thrown out because there was no requisite industrial flavour, but it is to be recalled what the scale of things was in Fish. Mr Fish had been the capitalist entrepreneur who sold out for $19 million, reinvested $18.5 million in what I will call the new bosses, had half a million dollars pocket money, and had to have under the stipulated future service contract, entry into which was a condition of completion of the sale agreement, had to have three years at $207,000 in an executive manager role.

The Court did not say that lacked industrial flavour or anything of that kind. The Court said that the problem in that case, the ratio in Fish, is that the contract under which, in accordance with which, work was done in that case in an industry was not one of the contracts which before subsection (2A) was inserted could be within the ambit of the Court’s jurisdiction to vary. Now, that is the ratio in Fish and it has been, in our submission, entirely misunderstood and utterly incorrectly applied by this decision. That is why, in answer to Justice Gummow, this Court should take this case on because subsection (2A) has made a difference and there has been a signal failure to appreciate that in Fish there was no amorphous or nebulous industrial flavour inserted into the understanding of the hinge provision. It was the words of the section, and those words of the section were satisfied as to work, they were satisfied as to industry, it was just that the contracts which were aimed at did not fit the category of contracts then within the jurisdiction of the tribunal.

Now, there is a related very important point. As your Honours know, the way in which we failed in the Court of Appeal was because of a new point. It cannot be contested it was new. There is an inference, at best perhaps a speculation, about the nature of the arrangements between the two gentlemen and the company, and the Chief Justice said, well, there you are, there is the contract – and there he must mean contract formally rather than the contract or arrangement definition of the Act – there is the contract pursuant to which whereby work was performed in the industry. In our submission, that flies in the face of the composite, connected, collateral and related concept which is now all within the jurisdiction for variation if the merits so require.

FRENCH CJ: Was not the approach in the Court of Appeal rather directed to the failure of the Full Bench to look at that as the contract or arrangement under which presumably work was done?

MR WALKER: Your Honour, they attributed failure where there had been no request to do that. That was a new argument in the Court of Appeal. It is not suggested that it was not new in the Court of Appeal. It simply said, in effect, to us, you can deal with it, there is no Suttor v Gundowda point. Now, quite apart from the Coulton v Holcombe point, quite apart from the matter of substance and merit, to which I will come in a moment, about the use of those service contracts so-called imputed, imagined, speculated, inferred, quite apart from all of that, there is the very important question in judicial review, the supervisory function of the Court of Appeal, subsection 179(4) of the privative clause which has the effect, as your Honours appreciate, of delaying, deferring, rendering conditional any entrée to the Court of Appeal until after there has been attendance to the matter before the Full Bench, either by refusing leave on a jurisdictional issue or by dismissing a challenge.

This challenge in relation to the supposed service contracts with the company of the two men in question has never been ventilated at first instance in, one loses count, I think it is 17 plus judgments and at least two on jurisdiction. It had never been ventilated in the Full Bench. In our submission, to have allowed it to be raised in the Court of Appeal was not merely a signal failure to comply with the canons of fairness underlying Coulton v Holcombe, but also in this case had a more perhaps jurisdictional difficulty, namely, that there had not been fulfilment of the condition under subsection 179(4) with regard to that point.

If there is to be any purpose in the deliberate filtering whereby the Court of Appeal gets to supervise the Full Bench only after the Full Bench has done what it can do on jurisdiction, if there is any point in that provision, if it is to be given any purposive effect, then it cannot permit new jurisdictional points to be taken that neither at first instance nor before the Full Bench of the Industrial Court has there been any opportunity for those specialist judges to opine.

GUMMOW J: Are you saying this is beyond the jurisdiction of the Supreme Court?

MR WALKER: Yes. We have raised the jurisdictional aspect of that failure to regard the effect of subsection 179(4) which we submit on its proper meaning must mean you cannot raise a new point about jurisdiction if you have not given the Industrial Court the opportunity to do so. Now, in any event, in our submission, as your Honours have seen from - - -

FRENCH CJ: This is reflected, is it, in ground 5?

MR WALKER: Yes, it is.

FRENCH CJ: I am looking at 980.

MR WALKER: Yes.

GUMMOW J: Well, it is a bit more than the Court of Appeal erred.

MR WALKER: Yes. There is a very serious error and, in our submission, it is one that should have been – well, there is more than mere error, yes.

GUMMOW J: No.....ground 5 were inapt to raise a contention as to the absence of jurisdiction.....the State.

MR WALKER: Your Honours will see the point taken in our written submissions, pages 988 to 989, paragraphs 35 to 37. In our submission, that is a serious point. It is, we accept, no mere error.

GUMMOW J: Particularly the last sentence of paragraph 37, “not permissible”.

MR WALKER: Yes.

GUMMOW J: Lawyer’s language, I think.

MR WALKER: In our submission, your Honours, that lends a weight and substance to our complaint about a new point having been raised that could have been met by evidence below, that transcends what is nonetheless a very important matter in the individual justice of the case, namely, the Suttor v Gundowda point, which was dealt with, to put it gently, perfunctorily in the Court of Appeal.

Your Honours, the last point of merit or substance that I wanted to come to which does present as a separate point though related to the ones I have already noted is this. There is nothing in the nature of a jurisdiction that recognises and deals with the informal, sometimes even unenforceable web or interlock of arrangements that may develop over time. There is nothing in that definition at section 105 for the purpose of section 106 which gives any support to the notion, new in this case, that there may be only one so-called most proximate way in which one can look to a contract or arrangement and identify a contract or arrangement whereby work is performed in an industry. There is none of the discrete timing, the separation in history, that one had in Fish. In this case they are all part of the same. May it please the Court.

FRENCH CJ: Thank you, Mr Walker. Mr Jackman.

MR JACKMAN: Can I begin with four general propositions before I deal with the six or so so-called special leave points. The first general proposition is that the applicable principles were laid down by this Court only three years ago in the trilogy of cases that is referred to. There have been two developments since then. One is the enactment of 106(2A) but, as the Court of Appeal said – if I can ask your Honours to go to page 956 where the Court of Appeal deals with the legislative enactment of subsection (2A), in paragraph 146 there is reference to “the joint judgment in Fish”. It is noted that:

subsection (2A) confers a power to declare void or vary a related condition or collateral arrangement, even though it does not relate to the performance by a person of work in an industry.

Paragraph 147 then emphasises the fact that:

subsection (2A) applies only if the contract or arrangement to which the condition is related or the arrangement is collateral “is a contract whereby the person performs work in an industry”. Accordingly, it remains accurate to say, as the High Court joint judgment said at [18] and [41] of Fish and [22] of Old UGC, performance of work in an industry is “the hinge about which s 106 turns”. Section 106(2A)(a) reaffirms that proposition –

for which the trilogy of cases stands.

BELL J: That flows also from the Chief Justice at application book page 946, paragraph 113, where he speaks of the textual consideration of the - - -

MR JACKMAN: Indeed, yes. So Fish is reaffirmed by the enactment of subsection (2A). The second point is that although my learned friend is now saying that the internal arrangements within Gough and Gilmour Holdings and Mr Gough and Mr Gilmour might be the basis on which you might latch onto subsection (2A), there is no pleading to that effect. That is an important point because the sixth further amended summons, being the current pleading, was an amendment made after the trilogy of cases and after section 106(2A).

Indeed, part of the amendments that were allowed in the present pleading were to extend the case in order to pick up some collateral agreement. But there was no attempt to say that the internal arrangements within Gough and Gilmour Holdings were part of what they wanted to get out of the new subsection (2A). So they had every opportunity to replead their case in a way in which they are now saying they want special leave to get. They did not do so. They never asked the Court of Appeal for leave to replead. That was something never raised despite the fact that everything was fully argued before the Court of Appeal.

The next general point is that my learned friend has said there cannot be any doubt that the points considered by the Court of Appeal were new points not raised before. That is manifestly wrong. It has always been the case run by the Caterpillar parties that Mr Gough and Mr Gilmour were performing work within their own very large company. They were not performing work pursuant to any arrangement with the Caterpillar parties. That is fundamental to our case and it has been fundamental to our case since the first jurisdictional challenge in 2002 which did not do a bad job at anticipating the principle which this Court upheld in the trilogy of cases four years later.

If I can ask your Honours to go to page 85 of volume 1 of the application book. At page 85 is the very end of a very long paragraph in Justice Boland’s decision in 2002 on jurisdiction. It begins on page 76 and it culminates at the top of page 85. This is recording the submissions that were put:

The applicants –

Mr Gough and Mr Gilmour –

invested in a multi-million dollar business of which they were proprietors and from which they received remuneration as they determined in the form of profits –

and so on, that is, the arrangements with their company –

Their business –

the holdings business –

though operating commercially under a commercial contract with Caterpillar, was the business for which they worked – not in Caterpillar’s business that Caterpillar of Australia owns and operates as a separate business.

That has always been our fundamental proposition. It was then echoed in the 2006 contest over jurisdiction. It was slightly reformulated. If your Honours go to volume 2, page 696. It was slightly reformulated because in 2005 there was a decision concerning a McDonald’s franchise in the Court of Appeal which introduced the language of “working proprietor”. On page 696, again a very long paragraph by Justice Boland recording submissions that were made by the Caterpillar parties, in the middle of 696 your Honours will see reference to McDonald’s, reference to Justice Handley considering:

the earlier franchise cases involved agreements with a “working proprietor” but not a working proprietor who employed “a workforce of this magnitude”.

Then there is a passage quoted dealing with:

Characterisation of a contract to determine whether it is within the jurisdiction of the Commission under s 106 will raise questions of fact and degree in franchise cases near the borderline and the decision may not be an easy one. However there is no difficulty in the present case where the working proprietor’s company employs some 350 staff. The distinction is one of substance, not form –

and that was then taken up in the Full Court’s record of the submissions put to it at page 830 through to 831, top of 832. I will not take your Honours through the detail of that submission. The fundamental point is that where one has a business of a distributor or a franchisee which is a very large concern, in the McDonald’s case 350 employees, in this case more than 700 employees in over 20 locations, when one has a business of that kind the directors, the managing director and the marketing director of that business are performing work pursuant to an arrangement with that business.

Now, the position could be different with a truck driver who has taken advice from his accountant to set up a private company and receives his remuneration through that private company. That may be a situation where the court will look through the corporate structure, at the substance rather than the form of what has been done and see that the external relations between the company and another party have the nature of an employment or industrial relationship. But it is not the case with a distributorship where the company, holdings in this case, is an extremely large concern. It is obviously the case that people like Mr Gough and Mr Gilmour are performing work pursuant to an arrangement or a contract with that company.

The fourth general point is that the 2009 legislation does diminish any public interest in this case. My learned friend said his response was set out in writing, we have not seen any, and the fact is the 2009 federal legislation means that section 106 only applies in effect to State government bodies and partnerships. Theoretically, it can apply to unincorporated – by unincorporated associations but there are very few of those in light of the Associations Incorporation Act.

Now, turning to the individual special leave points that are put forward. The first is this misnomer of a proximate contract issue. The notion of proximity is not one that has ever appeared in the cases. The question is whether there was an applicable contract to attract jurisdiction. It is a question of characterisation and the Court of Appeal faithfully applied the 2006 trilogy of cases, and one sees that most clearly in paragraph 122 on page 950 where the Court of Appeal points out that the Full Court had simply asked itself the wrong question and did not pose the proper question that arises, particularly from Fish and Batterham. Then on page 952 the facts of Fish are referred to and the reasoning of Fish is referred to. Paragraph 133 extracts paragraph [43] from the joint judgment in Fish:

when one asks what was the ‘contract’ whereby he performed that work, the answer does not include the share purchase agreement.

Paragraph 134:

In my opinion, the same conclusion applies in the present case.

Now, that is the end of the case. When one applies Fish and Batterham and Old UGC, that is the question that has to be asked and it yields the same answer as in Fish. Now, the judgment does go on to deal, particularly on pages 954 and 955, with this question of industrial flavour. Why does it do so? Because in paragraph 137 the Chief Justice has pointed out that:

The characterisation of a person as a “working proprietor”, or an equivalent characterisation, is not determinative.

The matter remains one of substance not form, hence one might treat differently the individual truck driver with his private contract from the way in which one treats a distributorship employing 700 people or 350 people. Because the section is concerned with matters of substance, not form, what do we mean by questions of substance? That, of course, is informed by the context of the Act, and the High Court has told us that the context of the Act is that it deals with matters of an industrial nature, hence one is looking for some analogy with an employee/employer relationship within an industrial context. That is the question of substance, and what the Chief Justice is saying in picking up the idea of industrial context is that that is the prism through which one assesses the substance rather than the mere form of the matter, rather than attaching labels such as working proprietor as though they were themselves determinative.

My learned friend then says there is an important issue that arises on section 179(4), the privative clause. His submissions on that point begin with the correct proposition that 179(4) means the Court of Appeal cannot review a jurisdictional question until the Full Bench of the Industrial Court has itself made a decision on that. The Industrial Court has made a decision, hence it is open to the Court of Appeal to review it. What the Industrial Court decides on the jurisdictional question is whether the attempt to ground jurisdiction that one finds in the pleaded case of the applicants does indeed attract jurisdiction. That is exactly what the Industrial Court at first instance and on appeal dealt with, the way in which the sixth further amended summons tried to attract jurisdiction.

It was totally unnecessary for the Industrial Court to consider whether there might be some other arrangement out there, such as the one internal to Gough and Gilmour Holdings, which might, had it been relied upon, attract jurisdiction. The Industrial Court decided jurisdiction on the only bases put forward by the applicants and the Court of Appeal reversed that. The Court of Appeal reversed it on the basis that the Fish questions had not been posed and answered, and if they had been answered, it would have revealed that the only applicable arrangement was one that had never been pleaded by the applicants, and that is the end of the private clause issue.

My learned friend tries to support his argument by saying that we never put a submission at any stage to the effect that Mr Gilmour and Mr Gough did work for their company rather than for my client’s companies, but that is the whole foundation of our jurisdictional argument from 2002 right through to the end of 2006. So that even if my learned friend were right in construing 179(4), there is no factual basis for the proposition that this was a new argument for Mr Gough and - - -

GUMMOW J: Now, you rely on what you said – you took us to page 85?

MR JACKMAN: Yes. Well, that is right at the outset, and the submission is maintained right through. So there is no factual basis even if my learned friend’s construction of 179(4) was tenable. As to the Suttor v Gundowda issue, similarly, it was not a new issue, it had always been there and, in any event, the Court of Appeal was right in disposing of that. There was no challenge to any of the primary facts found in the Industrial Court. The question was one of characterisation of those unchallenged primary facts. Suttor v Gundowda just never arose.

My learned friend’s final point is the so-call partial prohibition issue, and this is the only way in which he tries to work in section 106(2A) to the special leave application, and it seems to be an argument that the Court of Appeal should not have shut them out forever but should have given them some kind of leave to replead so as to get into the internal arrangements within Gough and Gilmour Holdings.

The fatal flaw in the argument is that the Court of Appeal was never asked to give leave to replead, but rather than asking the Court of Appeal, he seems to be asking this Court for something that has never been requested before and, in any event, it would be a contrivance to try to use 106(2A) to get into their own contracts or arrangements between themselves as individuals and the company they controlled and, in any event, 106(2A), as I have put before, plays a role only in confirming or affirming the propositions for which Fish and the other cases are authority. May it please the Court, those are our submissions.

FRENCH CJ: Thank you, Mr Jackman. Yes, Mr Walker.

MR WALKER: Your Honours, these two gentlemen were dealer principals so-called, specified by name, and the subject of the obligation which, as held in the Court of Appeal, amounted to a requirement that they work. The point in the Court of Appeal was, that would not suffice if one could suppose, and it really is only supposition, that there was what we have called a service contract by each of them with the company. The point about not working for another, about being a working proprietor is quite distinct from that.

The point about the service contract was that it was brought out in the Court of Appeal as being, as it were, a trump. The findings of fact were that the dealership agreement and the arrangement of which it formed part did require work in the manner that both at first instance and the Full Bench was laid out; clause 2(c) they have to stay active. There is no doubt. It is accepted that they did work. My friend has agreed with that. Furthermore, that what they were doing work in was in an industry. The way in which we lost was to say, but you worked pursuant to a service contract. There is actually no finding of fact which permitted that to be made. My friend has not referred to any.

The matter drawn to attention at page 85 in volume 1 of the application book is precisely the earlier form of an answer to our claim which we have always recognised and which we recognise in paragraph 2 of our reply submissions here, see volume 3 of the application book at page 1004. Indeed, at line 10 on page 85 you will notice that the remuneration being referred to is in the form of profits. That is earnings by way of being a capitalist, nothing to do with there being a contract of service by the person or persons who owned the company with the company. Quite a distinct point. There had never been raised below, never been raised until the Court of Appeal, look, there is another set of contracts here, not yet put or not put into the pleaded arrangement which we identify to the exclusion of everything else – and that is what the Chief Justice held – as being the fulfilment of the hinge provision for jurisdiction.

Now, of course, there could not be an application to amend a pleading in the Court of Appeal. This is judicial review of a jurisdictional decision reached at two levels in the Industrial Court on the basis of hard fought case where there had been a series of amendments and where the issues have been crystallised by the Full Bench without any mention of a service contract or anything of that kind. There could be no amendment here, of course, and we do not naturally ask for one. Partial prohibition is to the contrary of asking for an amendment. It is for proper crafting of a judicial review relief by way of fallback only.

So, in our submission, what you find at page 85 has nothing to do with service contracts. It is what became known between the parties as not working for another point. Now, ironically, that is exactly what they now succeeded in persuading the Court of Appeal. You were working for another. You were working under a service contract with a separate legal entity, your company. So it is quite plain that in the sequence of the evolution of the case it was only in the Court of Appeal that the finger was pointed at these supposed service contracts. In our submission, that is, as I say, a serious misstep by the Court of Appeal with jurisdictional consequences as we have argued. I need hardly remind you that Mr Fish was no truck driver.

Staff numbers conjured up by my learned friend’s reference in volume 2, page 696 to McDonald’s Case. No one has ever suggested that staff numbers, that is, those colleagues with whom you work, those whom you manage in a hierarchy, has ever suggested that that provides a jurisdictional test or criterion. Very easy for Parliament to have done so. If you supervise more than X number, you are out, just as they have said if you earn more than $200,000, you are out. Parliament has shown its readiness to apply bright lines and numbers being applied by reference to co-employees, their number or their hierarchy.

As to employment, which my learned friend says, in effect, is the bottom line of that which has been inserted by way of a necessary character in order that there be the requisite industrial flavour so as to comply with the hinge provision, which refers to neither of those matters, it is worth noting that there were findings never exposed as lacking any evidentiary basis and never subject to a Caltex Oil consideration, that is, with due deference to the superior court’s determination on a jurisdictional question – and you will find that in volume 3 of the application book, page 917 in the composite recitation of facts, the last dot item, lines 52 and following, is precisely that character being given by the industrial tribunal, and never, with respect, has that been the subject of any reasoning that would pass muster under a Caltex Oil approach by which a reviewing court considers findings grounding jurisdiction by an inferior tribunal; inferior but a superior court, I stress, of record. May it please the Court.

FRENCH CJ: Thank you, Mr Walker.

The Full Bench of the Industrial Court of New South Wales upheld a decision of a judge of that court varying under section 106 of the Industrial Relations Act (NSW) arrangements in the nature of assurances by members of the Caterpillar group of companies collateral to dealership agreements with the corporate applicant. The variations were made on the application of the corporate applicant and its two directors on the basis that they were performing work in an industry and that the arrangements varied were collateral contracts to the dealership agreements under which it was said they performed that work.

The New South Wales Court of Appeal found the Full Bench and the primary judge had committed jurisdictional error. They had failed to consider the arrangements between the directors and the corporate applicant. The dealership agreements did not fall within section 106 because of the industrial context to which it applies. The Court of Appeal generally applied principles established by this Court in three cases on section 106 of the Act and also took into account the legislative changes which had not applied in those three cases.

We are not persuaded that there was shown to be an error warranting the grant of special leave or that the operation of the section requires further consideration by this Court arising out of this case. Special leave should be refused.

MR JACKMAN: We would seek costs, your Honour.

FRENCH CJ: Can you resist that, Mr Walker?

MR WALKER: No, your Honour.

FRENCH CJ: Yes. There will be an order for costs.

The Court will adjourn until 2.00 pm.

AT 1.04 PM THE MATTER WAS CONCLUDED