Barry Dickins v Herald and Weekly Times Limited - [1994] IRCA 34

C A T C H W O R D S

Industrial law - contract for services - application under ss. 127A and 127B of Industrial Relations Act (Cth) 1988 to review contract on ground that it is unfair - whether sections can apply to a contract terminated before application made - use of present tense - whether retrospective operation of sections.

Industrial Relations Act (Cth) 1988 - ss.127A and 127B

In re Becker and Harry M. Miller Attractions Pty Ltd (No.2) 1972 AR(NSW) 298

Re Transport Workers' Union of Australia (1993) 50 IR 171 at 193-195

BARRY DICKINS v. HERALD AND WEEKLY TIMES LIMITED
VI No. 664 of 1994

KEELY J.
MELBOURNE
31 August 1994

IN THE INDUSTRIAL RELATIONS COURT )
  )
OF AUSTRALIA  )  VI No. 664 of 1994
  )
VICTORIA DISTRICT REGISTRY  )

B E T W E E N :

BARRY DICKINS
Applicant
- and -
HERALD AND WEEKLY TIMES LIMITED
Respondent

REASONS FOR JUDGMENT

31 August 1994 KEELY J.

Mr Barry Dickins (the applicant) on 7 June 1994 filed an application under ss. 127A and 127B of the Industrial Relations Act (Cth) 1988, as amended by Act No. 109 of 1992 from 23 July 1992 and as further amended by Act No. 98 of 1993 with effect from 30 March 1994 (the Act). The applicant wrote, in his application, that he "is a party to a contract for services" (the contract) with the respondent and that the grounds for his application "are that the contract is unfair and/or harsh". The applicant then set out particulars of the grounds.

The respondent has moved, on notice filed 18 July 1994, that the application be dismissed. Its supporting affidavit contained the following paragraph:

"5.The respondent respectfully submits that this Honourable Court does not have the jurisdiction to hear and determine the application filed by the applicant on 7 June 1994 because:-

(i)properly construed, section 127A does not permit the review of a contract no longer in existence at the time the application for review is made; and

(ii)the contract which the applicant seeks to have reviewed had ceased to exist before the time at which jurisdiction to review such contracts was conferred upon this Honourable Court upon the coming into operation of the Industrial Relations Reform Act 1993 on 30 March 1994 and, properly construed, that Act does not operate retrospectively."

It was common ground that the contract was terminated on or about 30 August 1993.

Sections 127A and 127B of the Act provide as follows:

"127A

(1)In this section and in section 127B:

"contract" means:

(a)a contract for services that:

(i)is binding on an independent contractor; and

(ii)relates to the performance of work by the independent contractor, other than work for the private and domestic purposes of the other party to the contract; and

(b)any condition or collateral arrangement relating to such a contract.

(2)Application may be made to the Court to review a contract on either or both of the following grounds:

(a)the contract…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barry Dickins v Herald and Weekly Times Limited

Details

AGLC: Barry Dickins v Herald and Weekly Times Limited [1994] IRCA 34
Case: [1994] IRCA 34
Decision Date: 31 Aug 1994

CaseChat Overview and Summary

Barry Dickins filed an application under sections 127A and 127B of the Industrial Relations Act (Cth) 1988, alleging that his contract for services with Herald and Weekly Times Limited was unfair. Herald and Weekly Times Limited moved to dismiss the application, arguing that the court lacked jurisdiction because the contract had been terminated before the application was made and the Act did not apply retrospectively. The central legal issues were whether the sections could apply to a contract terminated before the application and whether the Act's amendments had retrospective effect. The court found that the sections did not permit review of contracts no longer in existence and the amendments did not apply retrospectively. Consequently, the court lacked the authority to set aside or vary the contract, which had been terminated before the application was made.

The court considered the present tense used in sections 127A and 127B, which suggested that the powers conferred were for existing contracts. The court also noted that the final orders under section 127B were limited to varying or setting aside the contract, implying it must still exist. The respondent's counsel highlighted that other jurisdictions' statutes contained explicit retrospective powers, which were absent in the Commonwealth Act. The court rejected the applicant's submissions that the sections should be construed to have retrospective effect, holding that the sections did not cover situations already existing. The court concluded that it could not set aside or vary the contract, which had been terminated before the application was made. Therefore, the respondent's motion to dismiss the application was granted.

No orders were made in favour of the applicant, and the application was dismissed. The parties' legal representatives and dates of hearings were recorded in the certification of the judgment.

Orders