NSW Caselaw
Industrial Court of New South Wales
CITATION: Wirraway (NSW) Pty Ltd and anor v Ultra Tune Australia Pty Ltd [2006] NSWIRComm 300
APPLICANTS Wirraway (NSW) Pty Ltd and anor (Respondent on Notice of Motion) PARTIES: RESPONDENT Ultra Tune Australia Pty Ltd (Applicant on Notice of Motion)
FILE NUMBER(S): IRC 2759 of 2004
CORAM: Wright J President; Walton J Vice-President; Boland J; Haylen J
CATCHWORDS: Unfair contract - Industrial Relations Act 1996 - s 106 - franchise agreement - Notice of Motion referred to Full Bench - application to strike out claim for lack of jurisdiction - franchise agreement challenged as not constituting a contract whereby work is performed in an industry - challenge to jurisdiction prior to filing of evidence - terms of franchise agreement require management of outlet to be personally supervised and conducted by the franchisee if a natural person or the franchisee's nominee if a company - franchise agreement imposes numerous duties and obligations on operator - challenge brought prematurely - approach in Nagle v Tilbury adopted - Notice of Motion dismissed
Industrial Relations Act 1996 LEGISLATION CITED: Industrial Arbitration Act 1940 - s 88F Industrial Relations Amendment Act 2005
Batterham v QSR Ltd [2006] HCA 23 Brown v Rezitis (1970) 127 CLR 157 Caltex Oil (Australia) Pty Ltd v Feenan [1981] 1 NSWLR 169(PC) Fish v Solution 6 Holdings Pty Ltd [2006] HCA 22 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 (1991) 28 NSWLR 443 McDonald's Australia Holding Ltd and anor v The Industrial Relations Commission of New South Wales and ors, [2005] NSWCA 286, delivered on 25 August 2005 Nagle (t/as W D & J A Nagle & Sons) v Tilburg (1993) 51 IR 8 Old UGC Inc v Industrial Relations Commission of New South Wales [2006] HCA 24 Production Spray Painting and Panel Beating Pty Ltd v Newnham (1991) 27 NSWLR 644 Stevenson v Barham (1977) 136 CLR 190 Swann and anor v Ultra Tune Aust Pty Ltd (1983) 5 IR 136
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