Industrial Relations Commission of New South Wales in Court Session CITATION: Williams v Astrazeneca Pty Ltd [2005] NSWIRComm 37 APPLICANT Gregory Gilbert Williams PARTIES: RESPONDENT Astrazeneca Pty Ltd FILE NUMBER(S): 4344 of 2003 CORAM: Marks J CATCHWORDS: Unfair contract - strike out motion by respondent because salary cap provided by s 108A exceeded - applicant conceded that strike out application would succeed by reason of Full Bench decision in Aveling v UBS Capital Markets Australia Holdings Limited (2004) NSWIRComm 261 - applicant sought deferral of judgment pending determination of proceedings in New South Wales Court of Appeal - application to defer declined - summons dismissed. LEGISLATION CITED: Industrial Relations Act 1996 s 106 108A 179 Aveling v UBS Capital Markets Australia Holdings Limited (2004) NSWIRComm 261 Mitchforce v Starkey (No 2) (2003) 130 IR 37 CASES CITED: Solution 6 Holdings Limited & Ors v Industrial Relations Commission of NSW & Ors [2004] NSWCA 200 Trident General Insurance Co Limited v McNiece Bros Pty Ltd (1987-1998) 165 CLR 107 HEARING DATES: 02/09/2004; 02/17/2004 DATE OF JUDGMENT: 03/04/2005 APPLICANT/RESPONDENT ON MOTION Mr A Moses of counsel Slater & Elias Solicitors LEGAL REPRESENTATIVES: RESPONDENT/APPLICANT ON MOTION Mr H J Dixon SC Allens Arthur Robinson JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Monday 9 February 2004 Friday 4 March 2005 Matter No IRC 4344 of 2003 GREGORY GILBERT WILLIAMS v ASTRAZENECA PTY LTD Application under s 106 of the Industrial Relations Act 1996 JUDGMENT 1 By summons filed on 5 August 2003 the applicant Gregory Gilbert Williams has sought certain relief against the respondent Astrazeneca Pty Ltd under s 106 of the Industrial Relations Act 1996 (the "Act"). The summons asserts that the applicant was employed relevantly by the respondent and that his employment was terminated on 11 February 2003. At the time of the termination of employment the applicant was in receipt of a remuneration package of $324,149 per annum. The summons alleges that the contract was or became unfair and the applicant seeks a finding of unfairness and certain consequential relief. 2 The respondent filed two notices of motion seeking in effect to extend the time upon which a notice of motion might be filed to strike out the summons and seeking orders that the summons be struck out accordingly. The basis for the strikeout application is that this court lacks jurisdiction to deal with the proceedings because the applicant was in receipt of remuneration which exceeded the salary cap provided for in s 108A of the Act. The applicant conceded that his remuneration package exceeded that salary cap but argued that s 108A did not apply to the circumstances of his contract of employment. 3 Although the matter had been fully argued before me, the parties agreed that I should defer my judgment until after the application of s 108A had been determined by a Full Bench of this Court in Aveling v UBS Capital Markets Australia Holdings Limited (2002) NSWIRComm 261. A Full Bench comprising Wright J, President, Walton J, Vice-President, Marks, Boland and Staff JJ published a judgment on 15 September 2004 to the effect that s 108A applied so as to impact upon applications for relief made on and after it commenced operation, namely 24 June 2002. 4 When the proceedings came before me on 17 February 2005 the applicant submitted that I should defer applying the decision of the Full Bench in Aveling to enable its correctness to be tested in the New South Wales Court of Appeal. Such proceedings had been commenced in that court but no date for hearing had been set. 5 Mr Moses of counsel, who appeared for the applicant in support of this proposition, asserted that I would be bound to apply any decision of the Court of Appeal. I agree with this proposition (see Mitchforce v Starkey (No 2) (2003) 130 IR 378 at 385, especially the joint judgment of Wright J, President, and Walton J, Vice-President at paragraph [16]). Mr Moses submitted that no prejudice would attach to the respondent if the proceedings were further delayed, and the applicant would be saved additional costs involved in filing a notice of appeal from my decision so as to attempt to preserve his situation pending the outcome of the Court of Appeal proceedings. 6 In resisting this application the respondent emphasised that, as a general proposition, this court was required to apply principles established by appellate courts in a regular manner and that to refuse to do so in the circumstances of these proceedings would deny the respondent the benefit of the application of the principles established by a Full Bench constituted by five members of this court in Aveling. Mr H Dixon SC, who appeared for the respondent, said that consideration of this matter outweighed questions of additional costs that might be incurred by the applicant. Furthermore, he submitted that the respondent would be forced to continue to carry a contingent liability in its books of account created by the existence of the applicant's claim. 7 In my opinion this controversy may be resolved by applying basic principles which are fundamental to the administration of justice. The proceedings were delayed pending the delivery of judgment in Aveling. The judgment of the Full Bench in Aveling is binding upon me and I am bound to apply it. There is a hierarchical structure created by the Industrial Relations Act 1996 by which this Court is established, including an appellate court constituted by a Full Bench. Section 179 of the Industrial Relations Act 1996 operates so as to preclude supervisory jurisdiction by any other court except in limited circumstances which have been fully discussed in recent judgments of the New South Wales Court of Appeal (see, for example, Solution 6 Holdings Limited & Ors v Industrial Relations Commission of NSW & Ors [2004] NSWCA 200). 8 There will be circumstances where a court at first instance will be justified in deferring dealing with a matter because of concurrent proceedings in another court. This is particularly so where two courts might be exercising concurrent jurisdiction with respect to the same matter or where there are proceedings in another court, particularly an appellate court, which are in the nature of a test case or which otherwise would resolve, either wholly or substantially, the controversy between the parties. 9 However, in my opinion the circumstances applying to these proceedings are sufficiently different and do not compel a deferral of the exercise of jurisdiction and power which I would otherwise be required to undertake in an expeditious manner. There is in existence, as I have previously said, a Full Bench judgment which is binding upon me and the effect of which will determine these proceedings in the manner contended for by the respondent. The proceedings before the New South Wales Court of Appeal are not part of a structured hierarchical appellate process of the kind which commonly applies throughout New South Wales. There can be no certainty that the New South Wales Court of Appeal will undertake a review of the Full Bench judgment in Aveling, nor that Aveling would not be held to be correctly decided. 10 In Trident General Insurance Co Limited v McNiece Bros Pty Ltd (1987-1998) 165 CLR 107 Brennan J (as his Honour then was) in the High Court of Australia referred to the well-known desirability of courts conducting themselves in accordance with authority and principles laid down by courts higher in the appellate hierarchy (see his Honour's comments commencing page 129). This principle is so well established and is such an integral part of the administration of justice that it needs no elaboration. I intend to follow it. I regard myself as bound by the judgment of the Full Bench in Aveling and, in my opinion, there is no reason why I should not apply it in favour of the respondent in these proceedings. 11 Accordingly, I propose to dismiss the applicant's summons. I do not propose to deal with the respondent's motion to extend time to deal with its strike out motion. There can be no time limitation barring an application requiring a court to determine whether it has jurisdiction to deal with a matter. 12 Costs would normally follow the event but I have not heard detailed argument as to whether the usual orders should be made. Accordingly I propose to reserve costs. 13 ORDERS 1. The summons is dismissed. 2. Costs are reserved. 3. Liberty to apply with respect to costs, which should be exercised within one month of the date of this judgment. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.