NSW Nurses and Midwives’ Association (o/b Craig) v Western Sydney Local Health District [2016] NSWIRComm 1005

Industrial Relations Commission New South Wales Medium Neutral Citation: NSW Nurses and Midwives' Association (o/b Craig) v Western Sydney Local Health District [2016] NSWIRComm 1005 Hearing dates: 9 February 2016 Date of orders: 17 February 2016 Decision date: 09 February 2016 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Small claim granted Catchwords: SMALL CLAIM – monies deducted from employee's final payments OVERPAYMENT – overpayment by mistake RESTITUTION – Employee unjustly enriched is obliged to make restitution EQUITABLE DEFENCES – change of position defence – employee acted on basis of mistake – employee acted to detriment in reliance on payment – defence made out AWARD – Award provision giving delegate power to recover monies overpaid – whether Award provision comprehensive code on overpayments excluding defences – held, Award not comprehensive code – equitable defences not in any event excluded – defence made out DISCRETION TO WAIVE RECOVERY – properly exercisable only in uncommon circumstances – series of errors by respondent – discretion available in those circumstances Legislation Cited: Health Services Act 1997 s.116A Industrial Relations Act 1996 s.130 Cases Cited: Attorney General v Gray [1997] 1 NSWLR 406 Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation [1988] HCA 17; (1988) 164 CLR 662 Citigroup Pty Limited and National Australia Bank Limited [2012] NSWCA 381 David Securities Pty. Limited and Commonwealth Bank of Australia [1992] HCA 48; 175 CLR 353 Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548 Minister for Lands Forests v McPherson (1991) 22 NSWLR 687 New South Wales Nurses Association and Sydney Local Health District [2013] NSWIRC 28 Potter v Minahan (1908) 7 CLR 277 Category: Principal judgment Parties: NSW Nurses and Midwives' Association (o/b Craig) – applicant