NSW Caselaw
Industrial Court of New South Wales
CITATION: Zammitt and Another v Trend Windows & Doors Pty Limited [2008] NSWIRComm 48
APPLICANTS: Vincent Michael Zammitt PARTIES: Stephen Robert Hill
RESPONDENT: Trend Windows & Doors Pty Limited
FILE NUMBER(S): IRC 6531 and 7126 of 2002
CORAM: Backman J
CATCHWORDS: unfair contracts - s 106 of the Industrial Relations Act 1996 - applicants engaged as owner-drivers to transport respondent's products - independent contractors - oral contracts - implied terms of reasonable notice - contracts terminated following seven years of engagement with three weeks and three days notice - representations made to applicants of long-term work - applicants' reliance on long-term work - relationship mutually beneficial and amicable - terminations follow decision by respondent to engage one owner-driver to transport its products to the exclusion of other owner-drivers - whether circumstances of termination rendered contracts unfair - significant outlay of capital resources in reliance on representation - whether contacts were of perpetual duration - relevance of goodwill - relief - adequacy of notice - calculation of notice - whether any payments in lieu of notice should be calculated by reference to gross or net income - factors to be considered when assessing reasonable period of notice in context of commercial agreements - contracts unfair - mitigation - orders.
LEGISLATION CITED: Industrial Arbitration Act 1940 Industrial Relations Act 1996
Adrians Transport Pty Ltd and Anor v Pacific Dunlop Ltd (t/a Olex Cables) (unreported) per Hill J, Federal Court, 8 March, 1996 Australian Blue Metal Ltd v Robert Frank Hughes and Others [1963] AC 74 Barry and Ors v Incitec Limited & Anor (1991) 45 IR 143 Bowman v Ricegrowers Limited (formerly Ricegrowers' Co-operative Limited) [2007] NSWIRComm 204 Crawford Fittings Co and Others v Sydney Valve & Fittings Pty Ltd and Another (1998) 14 NSWLR 438 Gough & Gilmour Holdings Pty Limited v Caterpillar of Australia Limited (No. 11) [2002] NSWIRComm 354 CASES CITED: Gough & Gilmour Holdings Pty Ltd and ors v Caterpillar of Australia Ltd and anor (No. 15) [2003] NSWIRComm 173 Incitec Ltd and Another v Industrial Court of New South Wales and Others (1992) 29 NSWLR 83; (1992) 45 IR 155 Mark Trenter t-as 'Time Rite Onforwarders' v Australian Air Express Pty Limited [2006] NSWIRComm 314 Myer Stores Limited t/a Grace Bros v Stowart and Others (1994) 55 IR 21 Sydney Water Corporation Ltd and Another v Industrial Relations Commission of NSW and Another (2004) 61 NSWLR 661 Walker v Industrial Court of New South Wales & Anor (1994) 53 IR 121 Westfield Holdings v Adams (2001) 114 IR 241
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