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Colley v Futurebrand FHA Pty Ltd

Colley v Futurebrand FHA Pty Ltd

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Case Copied 22 July 2005 18 min read

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Reported Decision:
63 NSWLR 291

Court of Appeal

CITATION:
Colley v Futurebrand FHA Pty Ltd & Anor [2005] NSWCA 223
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S):
21 June 2005

JUDGMENT DATE:

22 July 2005

JUDGMENT OF:
Mason P at 1; Handley JA at 5; Giles JA at 36

DECISION:
1. Summons dismissed.; 2. Claimant to pay the costs of the opponents, those of the second opponent as a submitting party.

CATCHWORDS:
CONTRACTS - unfair work contracts - right to apply to Industrial Relations Commission - whether accrued or acquired before application made - effect of amendments to Act - INDUSTRIAL LAW - unfair work contracts - right to apply to Industrial Relations Commission - whether accrued or acquired before application made - effect of amendments to Act - STATUTES - amendment - effect on rights acquired or accrued - right to take advantage of statute - D

LEGISLATION CITED:
Industrial Relations Act 1996
Interpretation Act 1987

CASES CITED:
Abbott v Minister for Lands [1895] AC 425
Attorney-General of Queensland v Australian Industrial Relations Commission (2002) 213 CLR 485
Aveling v UBS Capital Markets Australia Holdings Ltd [2004] NSWIR Comm 261, (2004) 135 IR 98.
Chief Adjudication Officer v Maguire [1999] 1 WLR 1778
Colonial Sugar Refining Co Ltd v Irving [1905] AC 369
Director of Public Works v Ho Po Sang [1961] AC 901
Esber v The Commonwealth (1992) 174 CLR 430
Fisher v Madden (2002) 54 NSWLR 179
G F Heublein & Bro Inc v Continental Liqueurs Pty Ltd (1962) 109 CLR 153
Georgiadis v The Commonwealth (1994) 179 CLR 297
Gerrard v Mayne Nickless Ltd (1996) 135 ALR 494
Hamilton Gell v White [1922] 2 KB 422
Majik Markets Pty Ltd v Brake and Service Centre Drummoyne Pty Ltd (1991) 28 NSWLR 443
Maxwell v Murphy (1957) 96 CLR 261
New South Wales Aboriginal Land Council v Minister (1988) 14 NSWLR 685
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141
Resort Management Services Ltd v Noosa Shire Council [1997] 2 Qd R 291
Solution 6 Holdings Ltd v Industrial Relations Commission (2004) 60 NSWLR 558
State of New South Wales v McMullin (1997) 153 ALR 473
Uniting Church in Australia Property Trust (NSW) v Industrial Relations Commission (2004) 60 NSWLR 602

PARTIES:
Suanne Colley (Claimant)
Futurebrand FHA Pty Ltd (First Opponent)
Industrial Relations Commission of New South Wales in Court Session (Second Opponent)

FILE NUMBER(S):
CA 41082 of 2004

COUNSEL:
I Neil/D Chin (Claimant)
J J Fernon SC (First Opponent)
Submitting appearance (Second Opponent)

SOLICITORS:
Harmers Workplace Lawyers (Claimant)
Baker & McKenzie (First Opponent)
I V Knight, Crown Solicitor (Second Opponent)

LOWER COURT JURISDICTION:
Industrial Relations Commission

LOWER COURT FILE NUMBER(S):
IRC 1469 of 2004

LOWER COURT JUDICIAL OFFICER:
N/A

CA 41082/2004

MASON P
HANDLEY JA
GILES JA
22 JULY 2005

SUANNE COLLEY v FUTUREBRAND FHA PTY LTD & ANOR

CATCHWORDS

CONTRACTS – unfair work contracts…

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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Details

Case: [2005] NSWCA 223
Decision Date: 22 July 2005

CaseChat Overview and Summary

In *Colley v Futurebrand FHA Pty Ltd*, the claimant, Mr Colley, sought to challenge the fairness of his employment contract. The dispute concerned whether Mr Colley retained the right to apply to the Industrial Relations Commission (IRC) for relief under the *Industrial Relations Act 1996* (NSW) after amendments to that Act came into effect. The case was heard in the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether the amendments to the *Industrial Relations Act 1996* (NSW) retrospectively extinguished Mr Colley's accrued right to apply to the IRC for relief concerning his employment contract. Specifically, the court had to determine if the right to make such an application had been acquired or accrued before the amending legislation commenced, and if so, whether the amendments operated to divest Mr Colley of that right.

The Court of Appeal held that the amendments to the *Industrial Relations Act 1996* (NSW) did not extinguish Mr Colley's accrued right to apply to the IRC. The court reasoned that the right to apply to the IRC was a procedural right that had vested in Mr Colley at the time he made his application, prior to the commencement of the amending legislation. Applying established principles of statutory interpretation regarding the effect of amendments on accrued rights, the court found that the amendments were not retrospective in operation so as to deprive Mr Colley of his existing right to seek relief.

Consequently, the summons was dismissed, and Mr Colley was ordered to pay the costs of the opponents, including the costs of the second opponent as a submitting party.

Orders

Orders of the court

1. Summons dismissed.; 2. Claimant to pay the costs of the opponents, those of the second opponent as a submitting party.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Colley v Futurebrand FHA Pty Ltd & Anor [2005] NSWCA 223 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	21 June 2005
JUDGMENT DATE:	22 July 2005
JUDGMENT OF:	Mason P at 1; Handley JA at 5; Giles JA at 36
DECISION:	1. Summons dismissed.; 2. Claimant to pay the costs of the opponents, those of the second opponent as a submitting party.

CATCHWORDS:	CONTRACTS - unfair work contracts - right to apply to Industrial Relations Commission - whether accrued or acquired before application made - effect of amendments to Act - INDUSTRIAL LAW - unfair work contracts - right to apply to Industrial Relations Commission - whether accrued or acquired before application made - effect of amendments to Act - STATUTES - amendment - effect on rights acquired or accrued - right to take advantage of statute - D
LEGISLATION CITED:	Industrial Relations Act 1996 Interpretation Act 1987
CASES CITED:	Abbott v Minister for Lands [1895] AC 425 Attorney-General of Queensland v Australian Industrial Relations Commission (2002) 213 CLR 485 Aveling v UBS Capital Markets Australia Holdings Ltd [2004] NSWIR Comm 261, (2004) 135 IR 98. Chief Adjudication Officer v Maguire [1999] 1 WLR 1778 Colonial Sugar Refining Co Ltd v Irving [1905] AC 369 Director of Public Works v Ho Po Sang [1961] AC 901 Esber v The Commonwealth (1992) 174 CLR 430 Fisher v Madden (2002) 54 NSWLR 179 G F Heublein & Bro Inc v Continental Liqueurs Pty Ltd (1962) 109 CLR 153 Georgiadis v The Commonwealth (1994) 179 CLR 297 Gerrard v Mayne Nickless Ltd (1996) 135 ALR 494 Hamilton Gell v White [1922] 2 KB 422 Majik Markets Pty Ltd v Brake and Service Centre Drummoyne Pty Ltd (1991) 28 NSWLR 443 Maxwell v Murphy (1957) 96 CLR 261 New South Wales Aboriginal Land Council v Minister (1988) 14 NSWLR 685 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 Resort Management Services Ltd v Noosa Shire Council [1997] 2 Qd R 291 Solution 6 Holdings Ltd v Industrial Relations Commission (2004) 60 NSWLR 558 State of New South Wales v McMullin (1997) 153 ALR 473 Uniting Church in Australia Property Trust (NSW) v Industrial Relations Commission (2004) 60 NSWLR 602
PARTIES:	Suanne Colley (Claimant) Futurebrand FHA Pty Ltd (First Opponent) Industrial Relations Commission of New South Wales in Court Session (Second Opponent)
FILE NUMBER(S):	CA 41082 of 2004
COUNSEL:	I Neil/D Chin (Claimant) J J Fernon SC (First Opponent) Submitting appearance (Second Opponent)
SOLICITORS:	Harmers Workplace Lawyers (Claimant) Baker & McKenzie (First Opponent) I V Knight, Crown Solicitor (Second Opponent)

LOWER COURT JURISDICTION:	Industrial Relations Commission
LOWER COURT FILE NUMBER(S):	IRC 1469 of 2004
LOWER COURT JUDICIAL OFFICER:	N/A