Western Sydney Area Health Service v Gibson [2001] NSWIRComm 290

Industrial Relations Commission of New South Wales in Court Session

CITATION : Western Sydney Area Health Service v Gibson [2001] NSWIRComm 290 APPELLANT: Western Sydney Area Health Service PARTIES : RESPONDENT: James Gibson FILE NUMBER: IRC 4302 of 2001 CORAM: Wright J President; Walton J Vice-President; Hungerford J Unfair contract - Interlocutory proceedings - Notice of motion raising jurisdictional issues and seeking declaration pursuant to s 154 of the Industrial Relations Act 1996 - Judge at first instance upheld applicant's arguments that Notice of Motion out of time and extension of time should be refused - Appeal from decision at first instance - Principles as to appeals from discretionary decisions - Principles as to interlocutory strike-out applications in s 106 proceedings - Approach to be adopted as to procedural issues - Declaratory relief - Utility of declaratory relief - Held, that discretion at first instance miscarried - Leave to appeal granted - Appeal upheld - Proceedings remitted to be dealt with in accordance with Full Bench's judgment CATCHWORDS : Appeal - Leave to appeal - Unfair contract - Interlocutory proceedings - Notice of motion raising jurisdictional issues and seeking declaration pursuant to s 154 of the Industrial Relations Act 1996 - Judge at first instance upheld applicant's arguments that Notice of Motion out of time and extension of time should be refused - Principles as to appeals from discretionary decisions - Principles as to interlocutory strike-out applications in s 106 proceedings - Approach to be adopted as to procedural issues - Declaratory relief - Utility of declaratory relief - Held, that discretion at first instance miscarried - Leave to appeal granted - Appeal upheld - Proceedings remitted to be dealt with in accordance with Full Bench's judgment Health Services Act 1997 ss 105 106 LEGISLATION CITED : Industrial Relations Act 1996 ss 106 154 191 Industrial Relations Commission Rules 1996 rr 82 88 134 Suitors' Fund Act 1951 "A" v Commission for Children and Young People [2001] NSWIRComm 194 Atlantis Relocations (NSW) Pty Ltd v Department of Industrial Relations (Inspector O'Regan) (1997) 99 IR 125 Fernance v Wreckair Pty Ltd (1991) 22 NSWLR 439 Ford v SAS Trustee Corporation (2000) 98 IR 444 Harding v Bourke (2000) 48 NSWLR 598 CASES CITED : Hyde v Energy Australia (1999) 92 IR 409 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Nagle (t/as W D and J L Nagle & Sons) v Tilburg (1993) 51 IR 8 Production Panel Beating & Spray Painting Pty Ltd v Newnham (1990) 33 IR 311 State of New South Wales (Department of Public Works and Services and Department of Education and Training) v WorkCover Authority of New South Wales (Inspector Page) (2000) 101 IR 131 Virtue v New South Wales Department of Education and Training (1999) 92 IR 428 WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (No. 2) (2000) 101 IR 92 HEARING DATES: 10/30/2001 EXTEMPORE JUDGMENT DATE : 10/30/2001