Australian Co-operative Foods Limited v SW & JD Reilly & Sons Pty Limited [2010] NSWIRComm 110

Industrial Court of New South Wales

CITATION: Australian Co-operative Foods Limited v SW & JD Reilly & Sons Pty Limited [2010] NSWIRComm 110

PARTIES: Australian Co-operative Foods Limited (Appellant) SW & JD Reilly & Sons Pty Limited (Respondent)

FILE NUMBER(S): IRC 1814 of 2009

CORAM: Walton J Vice-President; Staff J; Backman J

CATCHWORDS: APPEAL - leave to appeal - unfair contract - Industrial Relations Act 1996 - s 106 - supermarket delivery contract (SDC) - notice of motion by trial judge that trial judge lacked jurisdiction on basis that SDC not a contract whereby work is performed in an industry - notice of motion dismissed at first instance on ground that it was not the appropriate time to resolve the jurisdictional issue - whether it was the "appropriate time" - Held: it was the "appropriate time" - consideration of jurisdictional issue - Held: SDC was a contract whereby work was performed - conclusion - orders

LEGISLATION CITED: Industrial Relations Act 1996 Workplace Relations Amendment (Work Choices) Act 2005 (Cth)

Agar v Hyde (2000) 201 CLR 552 Azzi & Ors v Volvo Car Australia Pty Ltd [2007] NSWSC 319 Batterham v QSR Limited (2006) 225 CLR 237 Brown v Rezitis (1970) 127 CLR 157 Caltex Oil (Australia) Pty Ltd v Feenan and Others (1980) 1 NSWLR 724 Caltex Oil (Australia) Pty Ltd v Feenan and Others (1981) 1 NSWLR 169 Caterpillar of Australia Pty Ltd v Industrial Court of New South Wales (2009) 255 ALR 131 Crewdson v NSW Department of Community Services (2003) 131 IR 217 Euphoric Pty Ltd v Ryledar Pty Limited (2002) 117 IR 1 Fish and Another v Solution 6 Holdings Limited (2006) 225 CLR 180 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 CASES CITED: Majik Markets Pty Ltd v Brake and Service Centre Drummoyne Pty Ltd and Others (1991) 28 NSWLR 443 McDonald's Australia Holdings Ltd v Industrial Relations Commission of New South Wales (2005) 144 IR 219 Nagle (T/as W D and J L Nagle & Sons) v Tilburg & Anor (1993) 51 IR 8 Old UGC v Industrial Relations Commission of New South Wales (2006) 225 CLR 274 Production Spray Painting & Panel Beating Pty Ltd and Others v Newnham and Others (1991) 27 NSWLR 644 Sin Yong Yim and Tai Sik Kim v Industrial Relations Commission of New South Wales and Anor (2007) 162 IR 62 Solution 6 Holdings Ltd v Industrial Relations Commission of New South Wales (2004) 60 NSWLR 558 Stevenson v Barham (1977) 136 CLR 190 SW & JD Reilly & Sons Pty Limited v Australian Co-operative Foods Limited [2009] NSWIRComm 176 T D Preece & Co. Pty Ltd v Murton (2007) 165 IR 396 Virtue v NSW Department of Education (1999) 92 IR 428 Wirraway (NSW) Pty Ltd and Anor v Ultratune Australia Pty Ltd [2006] NSWIRComm 300