Thomson and another v S G Australia Limited and another (No 4) [2008] NSWIRComm 107

Industrial Court of New South Wales

CITATION: Thomson and another v S G Australia Limited and another (No 4) [2008] NSWIRComm 107

APPELLANTS: Michael Thomson Bengoal Pty Ltd PARTIES: RESPONDENTS: SG Australia Limited Société Generale

FILE NUMBER(S): IRC 3717 of 2006

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

Appeal - Leave to appeal - Notice of Contention - Unfair contract - Employer/employee relationship terminated - Complex foreign exchange transactions - Whether trial judge erred by failing to find that the failure of the first respondent to draft contractual provisions so as to reflect discussions between the parties was "deliberate and intentional" - Whether trial judge failed to take into account a draft contract of employment which was produced by the first respondent late in the proceedings at first instance thereby depriving the appellants of the opportunity to properly conduct their case leading to a miscarriage of justice - Whether trial judge erred in determining the intention of the parties as to when revenue was earned for the purpose of calculating bonuses - Whether there was any unfairness in applying certain contractual provisions relating to the earning of bonuses - Leave to appeal granted - Held trial judge erred in one respect by failing to take into account a material consideration in calculating revenue earned for the purpose of a bonus calculation - To that extent only appeal upheld CATCHWORDS: Unfair contract - Appeal - Employer/employee relationship terminated - Complex foreign exchange transactions - Whether trial judge erred by failing to find that the failure of the first respondent to draft contractual provisions so as to reflect discussions between the parties was "deliberate and intentional" - Whether trial judge failed to take into account a draft contract of employment which was produced by the first respondent late in the proceedings at first instance thereby depriving the appellants of the opportunity to properly conduct their case leading to a miscarriage of justice - Whether trial judge erred in determining the intention of the parties as to when revenue was earned for the purpose of calculating bonuses - Whether there was any unfairness in applying certain contractual provisions relating to the earning of bonuses - Leave to appeal granted - Held trial judge erred in one respect by failing to take into account a material consideration in calculating revenue earned for the purpose of a bonus calculation - To that extent only appeal upheld