Gerrard, Allan v Mayne Nickless Ltd - [1997] FCA 1439

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - Application under s 127A and s 127B of the Industrial Relations Act 1988 in operation on 3 February 1994 for review of a contract for services entered by independent contractors - non-compliance of interim orders made by the Commission - application to amend pleadings - application to strike out application - lapse of time - issues are moot.

Industrial Relations Act 1988, ss 127A, 127B
Industrial Relations Reform Act 1993
Federal Court Rules, O 20 r 2(1)(a) & (b)

Gerrard & Anor v Mayne Nickless Ltd 58 IR 203
Gerrard & Anor v Mayne Nickless Ltd (1996) 135 ALR 494
La Roche v Cormack (1991) 33 FCR 414
Coutts v Ronstan International Pty Ltd (Northrop J, 4 June 1996, unreported)
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

ALLAN GERRARD & ANOR v MAYNE NICKLESS LTD
VI 1052 OF 1994

NORTHROP J
17 DECEMBER 1997
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VI 1052 of 1994

BETWEEN:

ALLAN GERRARD & ANOR
APPLICANTS

AND:

MAYNE NICKLESS LTD
RESPONDENT

COURT:

NORTHROP J

DATE OF ORDER:

17 DECEMBER 1997

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

The Applicants motion, notice of which is dated 18 September 1997 be refused.

The Respondent’s motion, notice of which is dated 18 September 1997 be granted.

The application be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VI 1052 of 1994

BETWEEN:

ALLAN GERRARD & ANOR
APPLICANTS

AND:

MAYNE NICKLESS LTD
RESPONDENT

COURT:

NORTHROP J

DATE:

17 DECEMBER 1997

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

The applicants commenced this application in the Federal Court of Australia on 11 March 1994. The application was within the original jurisdiction of the Federal Court, see s 19 Federal Court of Australia Act 1976 and s 127B(5) of the Industrial Relations Act 1988 as then in operation (the Unamended Act). Sections 127A and 127B of the Unamended Act provided a scheme by which an independent contractor was enabled to apply to the Australian Industrial Relations Commission for review of a contract for services on a number of grounds specified in s 127A(2) such as the contract was unlawful, harsh or against the public interest. If the Commission formed the opinion that a ground was established, it was empowered to make orders under s 127B setting aside or varying the contract. Under s 127B(3) the Commission was empowered to make an interim order to preserve the position of the independent contractor. Subsection 127B(5) provided:-

“(5)A party to the contract may apply to the Court to enforce an order by injunction or otherwise as the Court thinks fit.”

Under the Unamended Act, “the Court” meant the Federal Court of Australia.

On 3 February 1994, the Commission made interim orders under ss 127A and 127B of the Unamended Act in favour of a number of owner/drivers (“the applicants”)…

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: [1997] FCA 1439
Decision Date: 17 DECEMBER 1997

CaseChat Overview and Summary

The Federal Court of Australia was presented with an application by Allan Gerrard and other owner/drivers against Mayne Nickless Ltd, challenging the non-compliance of interim orders issued by the Australian Industrial Relations Commission. The applicants, independent contractors, alleged that Mayne Nickless Ltd had terminated their contracts in contravention of the interim orders made to preserve their positions pending the review of the contracts under the Industrial Relations Act 1988. The applicants sought enforcement of the interim orders and damages for breach.

The legal issues before the Court included whether the interim orders ceased to have effect after the Industrial Relations Reform Act 1993 came into operation, the validity of the interim orders, the Court's jurisdiction to award damages for non-compliance, and whether the proceeding should continue as a representative proceeding under the Industrial Relations Act. The applicants also sought leave to amend their application to include new claims for breach of statutory duty and breach of contract.

The Court found that the passage of time had rendered the issues in controversy between the parties moot, as the claims for injunctions and damages had become impractical and without practical significance. The obligations imposed by the interim orders had to be observed within a specified period, which had long since passed. The Court concluded that to proceed with the hearing of the application would be tantamount to giving an advisory opinion. The applicants' motion to amend their application was refused, and the application was dismissed. The Court's decision emphasised the importance of addressing jurisdictional and procedural issues at an early stage to avoid protracted and costly litigation.

Orders