John William Burden v Walgett Shire Council [2006] NSWIRComm 169

Industrial Court of New South Wales

CITATION: John William Burden v Walgett Shire Council [2006] NSWIRComm 169

APPLICANT: John William Burden PARTIES: RESPONDENT: Walgett Shire Council

FILE NUMBER(S): IRC 2390 of 2005

CORAM: Haylen J

Unfair contract - Industrial Relations Act 1996 - s 106 - applicant a bankrupt at time proceedings commenced - at conciliation respondent raises capacity of applicant to commence and maintain the proceedings - trustee in bankruptcy gives authority to applicant to continue the proceedings and purports to retrospectively authorise the commencement of the proceedings - applicant and trustee in bankruptcy apply for Trustee to be joined or substituted as the applicant - respondent argues that the proceedings are a nullity because of operation of Bankruptcy Act 1966 (C'wth) and joinder or substitution not available - provisions of s 108B relied upon by respondent - substance of application held to effectively make application by Trustee under s 106 - that application available under s 108B(3) - exceptional circumstances found to exist justifying the making of late application.

CATCHWORDS: Unfair contract - Industrial Relations Act 1996 - s108B(3) - exceptional circumstances justify making of late application by Trustee in bankruptcy - bankrupt applicant commences s 106 proceedings in time - question of capacity of bankrupt applicant to commence and continue the proceedings - substance of application considered.

Bankruptcy Act 1966 (C'wth) - s 58(1)(b) - bankrupt commences proceedings under s 106 Industrial Relations Act 1996 (NSW) - respondent challenges capacity of applicant to commence and maintain the proceedings - Trustee in Bankruptcy authorises continuation of the proceedings and purports to retrospectively authorise commencement of proceedings - whether s 106 proceedings are "property" vesting in the Trustee.