Bowman v Rice Growers' Co-Operative Limited

Bowman v Rice Growers' Co-Operative Limited - [2004] NSWIRComm 102 - NSWIRComm 2004 case summary — Zoe

Cases Cited (29)

CITATION : Bowman v Rice Growers' Co-Operative Limited [2004] NSWIRComm 102 APPLICANT Rod Bowman PARTIES : RESPONDENT Ricegrowers' Co-Operative Limited FILE NUMBER: 1061 of 2003 CORAM: Staff J CATCHWORDS : Unfair contract - Summons under s 106 of the Industrial Relations Act - Notice of motion seeking dismissal of summons - jurisdictional issue at interlocutory stage- whether claim under s 106 an unfair dismissal claim in disguise - operation of s 109A of the Industrial Relations Act - Principles relating to threshold challenge on jurisdictional grounds - Balsdon v Murray Irrigation distinguished on the facts - Costs sought on indemnity basis - Rejected - Costs sought forthwith - Motion dismissed LEGISLATION CITED : Industrial Relations Act 1996 Abboud v State of New South Wales (New South Wales Department of Education) (1999) 92 IR 32 Balsdon v Murray Irrigation [2003] NSWIRComm 251 Beahan v Bush Boake Allen Australia Limited (1999) 93 IR 1 Bell and Berg v Macquarie Bank Ltd & Anor [2003] NSWIRComm 363 Colgate Palmolive Co & Anor v Cussons Pty Ltd (1993) 46 FCR 225 Day v Lumley Life Ltd (1999) 90 IR 70 Euphoric Pty Ltd v Ryledar Pty Ltd and Anor [2002] NSWIRComm 136, (2002) 117 IR 1 Harcourt Brace & Co. (Aust) Pty. Limited v Cory (1997) 81 IR 321 Hogan v Employment National Administration Pty Ltd [2000] NSWIRComm 47 Lahoud v Joseph Lahoud [2003] NSWIRComm 179 Lipman and Anor v AG Lifestyle Management Pty Ltd and Anor [2003] NSWIRComm 160 Majik Markets Pty Ltd v Brake and Service Centre Drummoyne Pty Ltd and others (1991) 28 NSWLR 443, (1991) 39 IR 169 CASES CITED : Nagle (T/as W D & J L Nagle and Sons) v Tilburg (1993) 51 IR 8 Paviour-Smith and PFS-Premium Financial Group Pty. Limited v The National Mutual Life Association of Australasia Limited (1999) 91 IR 8 Ramsden v Ramsden [1954] 2 All ER 623 Russo v Quality Bakers [2004] NSWIRComm 50 Sampson v Edwards [1949] VLR 6 Sinclair v Hawker de Havilland Pty Ltd [2003] NSWIRComm 413 Steinhardt v Sapphire Bioscience Pty Ltd [2004] NSWIRComm 42 Stevenson v Barnham (1977) 136 CLR 190 Union Bank of Australia Ltd v Puddy [1949] VLR 242 United GlobalCom, Inc & Ors v McRann (No 2) [2004] NSWIRComm 16 Virtue v New South Wales Department of Education and Training (1999) 92 IR 428 Westfield Limited v Helprin (1997) 82 IR 411 Western Sydney Area Health Service v Gibson (2001) 109 IR 359 Young v Rank [1950] 2 KB 510 HEARING DATES: 04/05/2004 DATE OF JUDGMENT: 04/23/2004

21 The issue in these proceedings is whether Mr Bowman's claim for relief under s 106 of the Act is an unfair dismissal claim in disguise and by virtue of s 109A outside the Court's jurisdiction. In Beahan v Bush Boake Allen Australia Limited, prior to undertaking an extensive consideration of the provisions of s 109A, the Full Bench (Wright J President, Walton J Vice-President and Hungerford J) said at 2: At the outset we should make plain our reservations as to the matter proceeding as a threshold argument on jurisdiction before the applicant had opened his case or presented any evidence in these substantive proceedings. Nevertheless, both parties joined in urging us to do so on the basis of accepting for the purpose of determining the jurisdictional issue the case put for the applicant at its highest as set out in the further amended summons and supporting affidavits; a statement of agreed facts directed to certain formal matters was made available. Having in mind the nature of the preliminary issue, the importance to the operation of the relevant provisions of the Industrial Relations Act and, in particular, the view of the parties here concerned, we proceeded as requested. However, it is appropriate to record our concerns on this aspect by reference to what was said by a Full Court (Fisher CJ, Hungerford and Peterson JJ) of the former Industrial Court in Nagle (t/as WD & JL Nagle & Sons) v Tilburg (1993) 51 IR 8 at 10 - 12 as follows: As a general proposition, we think that all issues arising should be dealt with in the substantive proceedings unless the basis for a challenge, either on jurisdictional grounds, as here, or for lack of a reasonable cause of action, be clearly demonstrated. As was said by Mason and Jacobs JJ (with whom Barwick CJ and Stephen J agreed) in Stevenson v Barham (1977) 136 CLR 190 at 202-203. 'We have been told that the Commission follows the practice of permitting questions of jurisdiction to be argued without requiring a party to elect not to call evidence. There is much to commend this approach. As a general rule it is desirable that an objection to jurisdiction be determined as early as circumstances will conveniently admit so that the tribunal does not embark on a hearing which it lacks authority to conduct. … The discretion of a court to determine a case at an early stage, when appropriate, has been repeatedly asserted: see Young v Rank [1950] 2 KB 510; Ramsden v Ramsden [1954] 2 All ER 623 at 624; Union Bank of Australia Ltd v Puddy [1949] VLR 242; Sampson v Edwards [1949] VLR 6.'

(1999) 92 IR 32

(1999) 93 IR 1

(1993) 46 FCR 225

(1999) 90 IR 70

(2002) 117 IR 1

(1997) 81 IR 321

(1991) 28 NSWLR 443

(1991) 39 IR 169

(1993) 51 IR 8

(1999) 91 IR 8

(1977) 136 CLR 190

(1999) 92 IR 428