Prentice v Nugan Packing Co Ltd [1950] HCA 51

High Court of Australia Latham C.J. Dixon, McTiernan, Williams, Webb, Fullagar, and Kitto JJ. Prentice v Nugan Packing Co Ltd [1950] HCA 51

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 24 Latham C.J.

The Industrial Arbitration Act of New South Wales 1940-1948 makes provision in s. 92 for the recovery of wages fixed by an award or an industrial agreement by employees who are still in the employment of the employer against whom the claim is made, and also by employees whose employment with that employer has been terminated. In each case the right to recover is limited to a right to recover up to twelve months' wages as specified in the section. Under s. 92 (2) the employee may apply to an industrial magistrate for an order for payment of wages. It is provided that an application made after the termination of the employment shall be made not later than six months after the date of such termination. Section 92 (3) provides that an employee may, in lieu of applying for an order under sub-s. (2), sue for any balance due as aforesaid in any district court or court of petty sessions. The question which arises upon this appeal is whether proceedings in a district court must be taken within six months of the termination of the employment or whether they may be taken at any time, subject to the claim being met by any statute of limitations which, apart from s. 92, is applicable to the claim.

The appellant N. B. Prentice, on 26th September 1949, sued the respondent, the Nugan Packing Co. Pty Ltd., for £184 18s. 4d. for wages in the district court. He had been employed by the respondent company under an award, but that employment had ceased on 23rd December 1948. Accordingly, the proceedings were not instituted within six months of the termination of the employment. The district court judge gave judgment for the plaintiff but in prohibition proceedings in the Supreme Court it was held by the Full Court that the proceedings were out of time on the ground that the provision relating to the limited period of six months applied to proceedings in a district court or a court of petty sessions as well as to an application to an industrial magistrate.