Hilton Nursing Home Pty Ltd v Maciver [2000] NSWIRComm 252

Industrial Relations Commission of New South Wales in Court Session

CITATION : Hilton Nursing Home Pty Ltd v Maciver [2000] NSWIRComm 252 APPELLANT/CROSS RESPONDENT: PARTIES : Hilton Nursing Home Pty Limited RESPONDENT/CROSS APPELLANT: Heather Alison Maciver FILE NUMBER: IRC 2139 and IRC 2185 of 2000 CORAM: Wright J President; Hungerford J; Boland J Unfair contract - Appeal and cross appeal - Offer of compromise - Whether Court functus officio - Costs - Slip rule - Whether s 106 could be utilised to defeat statutory limitation period under s 365 - Held, Court not functus - Offer of compromise and costs issue remitted back to trial judge - Held, arguable case that error made in calculation of monies awarded and consequently matter remitted back to trial judge for consideration under slip rule - Leave refused in relation to other matters raised on appeal and cross appeal

CATCHWORDS : Recovery of Wages - Appeal and cross appeal - Leave to appeal - Whether s 106 could be utilised to defeat statutory limitation period under s 365 - Leave refused

Appeal and cross appeal - Leave to appeal - Offer of compromise - Whether Court functus officio - Costs - Slip rule - Whether s 106 could be utilised to defeat statutory limitation period under s 365 - Held, Court not functus - Offer of compromise and costs issue remitted back to trial judge - Held, arguable case that error made in calculation of monies awarded and consequently matter remitted back to trial judge for consideration under slip rule - Leave refused in relation to other matters raised on appeal and cross appeal

Industrial Arbitration Act 1940 (Repealed) LEGISLATION CITED : Industrial Relations Act 1996 s106 s 188(2) s 365 Industrial Relations Commission Rules 1996 r 172(2) r 203 r 216 Supreme Court Act 1970 Abboud v State of New South Wales (Department of School Education) (1999) 92 IR 32 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Huskisson RSL Sub Branch Ltd v Sullivan (1990) 20 NSWLR 332 [1990] 32 IR 404 CASES CITED : McEwen v AIDC Ltd (unreported, Schmidt J, 10 April 2000) Perrott v Xcellenet Australia Ltd (1998) 84 IR 255 Port Macquarie Golf Club Ltd v Stead (1995) 64 IR 53 Solicitors (State) Award (No 3) (1997) 72 IR 255 Stone Microsystems (Australia) Pty Ltd v Kwong (1997) 42 NSWLR 160, (1997) 85 IR 237 HEARING DATES: 11/23/2000 DATE OF JUDGMENT: 12/15/2000