ROTHMANS DISTRIBUTION SERVICES LTD v FULL COURT OF THE INDUSTRIAL COURT OF NEW SOUTH WALES [1994] NSWCA 272

ROTHMANS DISTRIBUTION SERVICES LTD v FULL COURT OF THE INDUSTRIAL COURT OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and MEAGHER JJA 12 April 1994, 29 April 1994 [1994] NSWCA 272

INDUSTRIAL LAW — industrial arbitration — avoidance or variation of contracts or arrangements to perform work — contract or arrangement with senior employee-redundancy payment less than that paid to weekly employees following closure of employer's factory — primary judge (Cahill J) dismisses claim for relief — on appeal, Full Industrial Court (Fisher and Hungerford JJ; Hill J dissenting) reverses Cahill J and provides relief under s275 Industrial Relations Act 1991 (equivalent to former s88F Industrial Arbitration Act 1940) — on summons for relief in the nature of prohibition or certiorari

CONTRACTS — unfair contracts — employment contract — claim for statutory relief where contract or arrangement unfair, harsh or unconscionable — finding that contract unfair by reason of subsequent events, including payment of higher redundancy payments to weekly employees — contention that Court could not have regard to events occurring after the contract was made or to payments made to third parties

Held: (Priestley JA, Kirby P and Meagher JA concurring):

(1) As no jurisdictional error had been shown, the summons for relief for excess of jurisdiction should be dismissed.

Walker v Industrial Court of New South Wales and Anor, Court of Appeal (NSW) unreported, 12 April 1994 applied;

(2) Leave to reargue the correctness of Incitec Ltd and Anor v Industrial Court of New South Wales and Ors (1992) 45 IR 155 (NSWCA) refused.

Held:

Contentions incorrect and in any case no jurisdictional error.

Incitec Ltd and Anor v Industrial Court of New South Wales and Ors (1992) 45 IR 155 (NSWCA);