Kennedy v Martinez [2011] NSWIRComm 137

Industrial Relations Commission New South Wales Medium Neutral Citation: Kennedy v Martinez [2011] NSWIRComm 137 Hearing dates: 18/03/2011, 03/06/2011 Decision date: 10 October 2011 Jurisdiction: Industrial Court of NSW Before: Walton J, Vice-President, Staff, Backman JJ Decision: (1) Leave to appeal is granted. (2) The appeal is dismissed. (3) The appellant is to pay the respondents' reasonable costs of the appeal. (4) The question of costs at first instance is reserved and the Court shall determine any contested issue as to costs awarded in the proceedings below on the papers, unless a party making written submissions in accordance with these Orders, seeks to make oral submissions. Catchwords: APPEAL - leave to appeal - unfair contract - Industrial Relations Act 1996 - s 106 - appellant signed a Deed of Agreement (the contract) becoming a fixed draw partner following a "merger" between Ebsworth & Ebsworth (E&E) and Home Wilkinson Lowry (HWL) - appellant's contract terminated after four months - significance of bargains freely made in assessing unfairness of the notice provision in the Deed - whether period of notice (one month) provided in the Deed was unfair - whether procedural unfairness in the process leading up to termination of the contract - pre-contractual representations - the appellant's performance - whether subjective considerations erroneously taken into account - the appellant's belief as to meeting his KPIs - the offer of a consultancy to the appellant - failure to call other witnesses - orders Legislation Cited: Industrial Arbitration Act 1940 Industrial Relations Act 1996 Cases Cited: A & M Thompson Pty Ltd and Others v Total Australia Ltd (1980) 2 NSWLR 1 All-Fect Distributors Ltd v Stewart [2007] NSWIRComm 24; (2007) 160 IR 90 John Burke Mulford v AW Butterell and Others as Partners of Grant Thornton Chartered Accountants [2001] NSWIRComm 137 Johnson v Snaddon [2001] VSCA 91 Lavings v Barclay Mowlem Construction (NSW) Ltd (1994) 99 IR 247 Port Macquarie Golf Club Limited v Stead & Another (1996) 64 IR 53 Category: Principal judgment Parties: Peter Ewan Kennedy (Appellant) Juan Jose Martinez (First Respondent) Ari Schachna (Second Respondent) Evan Stents (Third Respondent) Gail Owen (Fourth Respondent) Peter Van Rompaey (Fifth Respondent) Phillip Battye (Sixth Respondent) Roger Stansfield (Seventh Respondent) Simone Marin (Eighth Respondent) Craig Down (Ninth Respondent) Fanoula Galanakis (Tenth Respondent) Frank Xenos (Eleventh Respondent) Maurice Thompson (Twelfth Respondent) Paul Graham (Thirteenth Respondent) Peter Bramwell (Fourteenth Respondent) Picha Djohan (Fifteenth Respondent) Rick Horsley (Sixteenth Respondent) Ronnie Winchester (Seventeenth Respondent) Jonathan Kramersh (Eighteenth Respondent) David Jenkins (Nineteenth Respondent) Jason Warat (Twentieth Respondent) Jonathan East (Twenty-first Respondent) Lindsay Reed (Twenty-second Respondent) Matthew Reynolds (Twenty-third Respondent) Paul Gordon (Twenty-fourth Respondent) Peter Bittner (Twenty-fifth Respondent) Phillip Heraghty (Twenty-sixth Respondent) Philip Hunter (Twenty-seventh Respondent) Ross Williams (Twenty-eighth Respondent) Steven Henderson (Twenty-ninth Respondent) Virginia Waterhouse (Thirtieth Respondent) Wayne Jenvey (Thirty-first Respondent) Graeme Traves (Thirty-second Respondent) Karyn Reardon (Thirty-third Respondent) Mark Lightfoot (Thirty-fourth Respondent) Michael Cameron (Thirty-fifth Respondent) Peter Daley (Thirty-sixth Respondent) Rachel Weeks (Thirty-seventh Respondent) Scott Butler (Thirty-eighth Respondent) Simon Tolhurst (Thirty-ninth Respondent) Anthony Highfield (Fortieth Respondent) Brian Thomas (Forty-first Respondent) Bryan Belling (Forty-second Respondent) Chris Brierley (Forty-third Respondent) David Vaughan (Forty-fourth Respondent) Dennis Bluth (Forty-fifth Respondent) Douglas Vorbach (Forty-sixth Respondent) Elias Stephen (Forty-seventh Respondent) Elisabeth Ritchie (Forty-eighth Respondent) Grant Hummel (Forty-ninth Respondent) Jane Hewitt (Fiftieth Respondent) Joseph Hurley (Fifty-first Respondent) John Bartrop (Fifty-second Respondent) John Graves (Fifty-third Respondent) Jonathan Tapp (Fifty-fourth Respondent) Kerrie Chambers (Fifty-fifth Respondent) Lachlan Paterson (Fifty-sixth Respondent) Mark Harrowell (Fifty-seventh Respondent) Mark Webeck (Fifty-eighth Respondent) Martin Downing (Fifty-ninth Respondent) Matthew Harding (Sixtieth Respondent) Michael Bowyer (Sixty-first Respondent) Michael Neylan (Sixty-second Respondent) Nicholas Matkovich (Sixty-third Respondent) Paul Stephenson (Sixty-fourth Respondent) Peter Garrett (Sixty-fifth Respondent) Peter MacKenzie (Sixty-sixth Respondent) Robert Gardini (Sixty-seventh Respondent) Robert Johnston (Sixty-eighth Respondent) Robert Schneider (Sixty-ninth Respondent) Simon Liddy (Seventieth Respondent) Tim Griffiths (Seventy-first Respondent) Alice De Boos (Seventy-second Respondent) Andrew Miers (Seventy-third Respondent) Brian Olliver (Seventy-fourth Respondent) Damian Ward (Seventy-fifth Respondent) Danella Wilmhurst (Seventy-sixth Respondent) David Clarke (Seventy-seventh Respondent) Duncan Campbell (Seventy-eighth Respondent) John Bell (Seventy-ninth Respondent) John Cole (Eightieth Respondent) Julie Hamblin (Eighty-first Respondent) Julian McGrath (Eighty-second Respondent) Kirston Gerathy (Eighty-third Respondent) Mary Digiglio (Eighty-fourth Respondent) Penel Snyman (Eighty-fifth Respondent) Richard Graham (Eighty-sixth Respondent) Richard Gration (Eighty-seventh Respondent) Robert McGregor (Eighty-eighth Respondent) Sancia De Jersey (Eighty-ninth Respondent) Seamus Burke (Ninetieth Respondent) Sonya Kroon (Ninety-first Respondent) Steven Burns (Ninety-second Respondent) Stuart Westgarth (Ninety-third Respondent) Tom Suttie (Ninety-fourth Respondent) Jury Wowk (Ninety-fifth Respondent) Ashley Holland (Ninety-sixth Respondent) Denis Hall (Ninety-seventh Respondent) Grant O'Grady (Ninety-eighth Respondent) Representation: Mr I Neill, SC with Mr T Saunders of counsel (Appellant) Mr M Kimber, SC with Mr D Mahendra of counsel (Respondents) Haywards Solicitors (Appellant) Workplace Advisory Group (Respondents) File Number(s): IRC 1177 of 2010 Decision under appeal Citation: Kennedy v Martinez [2010] NSWIRComm 134 Date of Decision: 2010-10-01 00:00:00 Before: Boland J, President File Number(s): IRC 640 of 2009