Industrial Relations Commission of New South Wales in Court Session CITATION : Manildra Flour Mills v Hammond [2004] NSWIRComm 328 APPELLANT Manildra Flour Mills (MFG) Pty Limited PARTIES : RESPONDENT Ronald Hammond FILE NUMBER: IRC 2145 of 2003 CORAM: Wright J President; Walton J Vice-President; Kavanagh J CATCHWORDS : Appeal - Unfair contract - Application for leave to appeal - Alleged denial of natural justice - Whether adequate reasons for decision given - Principles as to making of consequential orders - Consequential relief - Interest on verdict - Leave to appeal refused - Appeal dismissed - Costs. CASES CITED : Hammond v Manildra Flour Mills Pty Ltd [2003] NSWIRComm 64 King v State Bank of New South Wales (No 2) (2003) 126 IR 407 HEARING DATES: 10/27/2004 EXTEMPORE JUDGMENT DATE : 10/27/2004 APPELLANT Mr A R Moses of counsel Solicitors: Phillips Fox LEGAL REPRESENTATIVES: RESPONDENT Mr S J Burchett of counsel Solicitors: R L Whyburn & Associates JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President KAVANAGH J Wednesday 27 October 2004 Matter No IRC 2145 of 2003 MANILDRA FLOUR MILLS (MFG) PTY LIMITED v RONALD HAMMOND Application by Manildra Flour Mills (MFG) Pty Limited for leave to appeal and appeal against a decision of Justice Marks given on 31 March 2003 in Matter No IRC 6288 of 2000 JUDGMENT OF THE COURT [2004] NSWIRComm 328 (Extempore) 1 The applicant for leave to appeal, Manildra Flour Mills (MFG) Pty Limited, seeks leave to appeal and, subject to leave being granted, appeals against the judgment of Marks J given on 31 March 2003 (see Hammond v Manildra Flour Mills Pty Ltd [2003] NSWIRComm 64). The Court decided that it was appropriate to direct the parties today to deal with leave to appeal as a threshold matter. 2 Having heard counsel for both parties on the question of leave, we have determined to refuse leave to appeal and dismiss the appeal. Our reasons for doing so may be stated shortly. The judgment, the subject of these proceedings, was given by his Honour on 31 March 2003 and final orders were made on 21 April 2004. In those orders a verdict for $45,870 was entered and an order was made for payment of interest of $14,349; a total sum of $60,219. 3 The facts of the proceedings were expressed shortly by his Honour at paragraphs [4] to [12] of the judgment at first instance and it is not necessary to rehearse those here. His Honour was somewhat critical of the evidence called by the applicant. There was, however, no evidence called before his Honour by the present applicant, the respondent at first instance. His Honour set out his decision on the issue of unfairness at paragraph [14] of the judgment in this way: Notwithstanding these difficulties I conclude that, on the basis of evidence, the applicant had not been intimately involved in the organisation of the work associated with the demolition of the feed mill, that overall, there were problems with the carrying out of that work, that the applicant was at no time aware nor ought reasonably to have been aware of any safety breach in association with that work. I conclude therefore that the conduct of the respondent in terminating the applicant's engagement purportedly because of these safety breaches was in all the circumstances unfair. This conduct rendered the contract itself unfair for the purposes of s 106 of the Act, and I find accordingly. 4 His Honour then dealt at length with the issue of consequential relief and decided to order the payment of the sum equivalent to five months salary, (see paragraph [22] of his Honour's judgment), less certain offsets in favour of the respondent at first instance. 5 His Honour determined that interest should be ordered on the sum awarded from the termination of the respondent's contract in February 2000, notwithstanding that the summons had not been filed until 22 December 2000. 6 The applicant for leave raised a number of issues. It was submitted that each should warrant the grant of leave to appeal. Some of the matters were emphasised as being at the forefront of the applicant's argument. 7 Dealing initially with what could thus be referred to as subsidiary matters, they related to the alleged failure of his Honour to give adequate reasons and the alleged failure to apply proper principles as to the making of consequential orders in s 106 proceedings (relying, for example, on the judgment of the Full Bench in King v State Bank of New South Wales (No 2) (2003) 126 IR 407. We consider that there is no basis for the grant of leave to appeal in respect of those matters. 8 As to the two matters at the forefront of the argument for leave to appeal we observe as to the first issue which was the alleged denial of natural justice, that contention relates essentially to matters referred to in paragraph [21] of his Honour's judgment and particularly sub paragraph 1 thereof, where his Honour said: Whether the contract be one of employment or principal and independent contractor, the courts will imply a right to terminate upon reasonable notice, in the absence of any express term to the contrary. What is reasonable will depend upon all of the circumstances. Such a provision can never, in my opinion, be unfair. The converse is that any period which is not reasonable must ipso facto be prima facie unfair. I do not regard the fixing of a period in a contract by reference to an arbitrary period (here, one week) as indicating in any way that that period is reasonable. 9 We consider that at their highest those observations are no more than part of his Honour's reasoning process and could not be said to have injected a new issue into the proceedings, as was alleged by the applicant. 10 On the second issue, the matter of interest, as earlier noted, his Honour granted interest calculated from February 2000 to March 2003 rather than from December 2000 to March 2003. The issue of interest thus stated is not a matter which, in our view, attracts leave to appeal. 11 Another factor which leads us to conclude that leave to appeal should be refused is the small amount at issue in the proceedings, an amount which we have earlier referred to. 12 We therefore make the following orders: (1) Leave to appeal refused. (2) Appeal dismissed. [The Court then heard submissions by counsel as to costs and continued] 13 An application has been made by the respondent for indemnity costs based on the fact that at first instance costs of the trial were granted on an indemnity basis on the Calderbank principle. Reliance was also placed, in this context, on the lack of merit of the grounds on which leave to appeal was sought. The application for indemnity costs was opposed by the applicant. 14 We consider that in this particular matter the considerations relied upon, coupled with the refusal of leave to appeal, should result in the respondent having his costs on an indemnity basis. We order accordingly. _______________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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