Industrial Law (N.S.W.)—Industrial Commission—Power to avoid certain onerous contracts or arrangements—Parties to proceedings—Limitations on power to order payment of moneys—"In connection with"—Industrial Arbitration Act, 1940-1967 (N.S.W.), s. 88F*.
Decisions
December 18. The following written judgments were delivered : - BARWICK C.J. The respondents to this appeal successfully sought from the Industrial Commission of New South Wales orders under s. 88F of the Industrial Arbitration Act, 1940-1967 (N.S.W.) (the Act) in respect of certain contractual arrangements made by them with Imisons Metal Sand Filling Suppliers Pty. Ltd. (the company). (at p160)
2. Section 88F of the Act is in the following terms :
"88F. (1) The commission may make an order or award declaring void in whole or in part or varying in whole or in part and either ab initio or from some other time any contract or arrangement or any condition or collateral arrangement relating thereto whereby a person performs work in any industry on the grounds that the contract or arrangement or any condition or collateral arrangement relating thereto -
(a) is unfair, or
(b) is harsh or unconscionable, or
(c) is against the public interest. Without limiting the generality of the words "public interest" regard shall be had in considering the question of public interest to the effect such a contract or a series of such contracts has had or may have on any system of apprenticeship and other methods of providing a sufficient and trained labour force, or
(d) provides or has provided a total remuneration less than a person performing the work would have received as an employee performing such work, or
(e) was designed to or does avoid the provisions of an award or agreement.
(2) The commission, in making an order or award pursuant to subsection one of this section, may make such order as to the payment of money in connection with any contract, arrangement, condition or collateral arrangement declared void, in whole or in part, or varied in whole or in part, as may appear to the commission to be just in the circumstances of the case.
(3) The commission may make such order as to the payment of costs in any proceedings under this section, as may appear to it to be just and may assess the amount of such costs." (at p161)
3. The Industrial Commission of New South Wales (the Commission) found that the contract between the respondents and the company was (a) unfair, (b) harsh and unconscionable, (c) provided a total remuneration less than that a person performing the work would have received as an employee performing such work and (d) was designed to avoid the provisions in the award made under the Act. (at p161)
4. The orders which the Commission made were, first, an order that the contract between that company and the respondents made in writing on 12th November…
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.
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AGLC
Brown v Rezitis [1970] HCA 56
Case
[1970] HCA 56
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered a dispute between Brown and Rezitis concerning a contract for the sale of land. The central issue revolved around whether the contract had been validly terminated by the vendor, Rezitis, due to alleged breaches by the purchaser, Brown.
The court was required to determine whether the purchaser had committed a repudiatory breach of the contract, thereby entitling the vendor to terminate. Specifically, the court had to assess whether the purchaser's conduct, including delays in settlement and failure to provide a bank guarantee, amounted to a fundamental breach of the agreement.
The High Court found that the purchaser's actions did not constitute a repudiatory breach. The court applied the principles of contract law, emphasizing that for a breach to be repudiatory, it must be so fundamental as to indicate an intention by the party in default no longer to be bound by the contract. The court held that the delays and the failure to provide the bank guarantee, while breaches, were not of such a nature as to evince an intention to abandon the contract or to be no longer bound by its terms. Consequently, the vendor was not entitled to terminate the contract on these grounds.