Australian Co-operative Foods Ltd v SW & JD Reilly & Sons Pty Ltd

In the Supreme Court of New South Wales, Court of Appeal, Australian Co-operative Foods Ltd (the applicant) sought to appeal a decision concerning the jurisdiction of the Industrial Court of New South Wales. The dispute involved a contract between the applicant and SW & JD Reilly & Sons Pty Ltd (the first respondent) for the delivery of milk. The applicant had sought to have this contract declared unfair under section 106 of the *Industrial Relations Act 1996* (NSW).

The primary legal issue before the Court of Appeal was whether the contract for the delivery of milk constituted a "contract whereby a person performs work in any industry" within the meaning of section 106(1) of the *Industrial Relations Act 1996* (NSW), thereby conferring jurisdiction on the Industrial Court. This question arose in the context of an application for summary dismissal of the proceedings in the Industrial Court.

The Court of Appeal considered the principles established in *General Steel Industries Inc v Commissioner for Railways (NSW)*, which govern summary dismissal. It held that the question of whether the contract involved the performance of work in an industry required an evaluative judgment, not a purely legal one. Because this evaluative judgment could not be made without a full hearing, the Industrial Court had erred in summarily dismissing the proceedings. Consequently, the Court of Appeal allowed the appeal, set aside the order of the Industrial Court, and remitted the matter to the Industrial Court for hearing and determination.