Legal Research
Cases
Gerrard v Mayne Nickless

Gerrard v Mayne Nickless

Case [1995] IRCA 25 8 February 1995

Employment & Labour Law

Type to search within this case.

CATCHWORDS

INDUSTRIAL LAW - Review by Industrial Relations Commission of unfair contracts for services entered into by independent contractors - proceedings instituted in Commission before legislative amendment transferred jurisdiction to Court - no transitional provisions - whether right to have application determined by Commission is an accrued right - enforceability of interim orders of the Commission

Industrial Relations Act 1988 s 45(1)(ea), s 127A, s127B,
s 127C
Acts Interpretation Act 1901 (Cth) s 8

Director of Public Works v Ho Po Sang [1961] AC 901
Robertson v City of Nunawading [1973] VR 819
Esber v The Commonwealth of Australia (1991-1992) 174 CLR 430

ALLAN GERRARD & ANOR v MAYNE NICKLESS LTD
No VI 1052 of 1994

NORTHROP J
MELBOURNE
8 FEBRUARY 1995

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
No VI 1052 of 1994
VICTORIA DISTRICT REGISTRY

B E T W E E N :

ALLAN GERRARD & ANOR
Applicants

A N D :

MAYNE NICKLESS LTD
Respondent

COURT: NORTHROP J

PLACE: MELBOURNE

DATE: 8 FEBRUARY 1995

MINUTES OF ORDER

THE COURT ANSWERS THE SEPARATE QUESTION AS FOLLOWS:

Did the Interim Order made by Justice Munro on 3 February 1994 cease to have effect on 30 March 1994 on the coming into operation of section 71 of the Industrial Relations Reform Act 1993?

Answer: No

THE COURT ORDERS THAT:

The further hearing of the application is adjourned to a directions hearing at 9.45 am on Wednesday 1 March 1995.

Note:Settlement and entry or orders is dealt with in Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
No VI 1052 of 1994
VICTORIA DISTRICT REGISTRY

B E T W E E N :

ALLAN GERRARD & ANOR
Applicants

A N D :

MAYNE NICKLESS LTD
Respondent

COURT: NORTHROP J

PLACE: MELBOURNE

DATE: 8 FEBRUARY 1995

REASONS FOR JUDGMENT

The applicants have brought this application as a representative proceeding under section 435 of the Industrial Relations Act 1988. The application is brought on behalf of a group of persons called owner drivers, being persons who had been engaged by Mayne Nickless Ltd as owner drivers. The application was issued in the Federal Court of Australia on 11 March 1994 at a time after the Industrial Relations Reform Act 1993 ("the Reform Act") had been enacted but before it came into operation on 30 March 1994. In these reasons the Industrial Relations Act in force immediately before 30 March 1994 shall be referred to as the "Unamended Act" and that Act as amended by the Reform Act will be referred to as the "Amended Act".

The application was made pursuant to subsection 127B(5) of the Unamended Act which provided:

"127B(5) A party to the contract may apply to the Court to enforce an order by injunction or otherwise as the Court thinks fit."

In that subsection at that time "the Court" meant the Federal Court of Australia.

The order sought to be…

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 Gerrard v Mayne Nickless

Details

AGLC: Gerrard v Mayne Nickless [1995] IRCA 25
Case: [1995] IRCA 25
Decision Date: 08 February 1995

CaseChat Overview and Summary

The case of Gerrard v Mayne Nickless involved Gerrard, an independent contractor, and Mayne Nickless, a company that had entered into a contract with Gerrard. The dispute centred on the review of an alleged unfair contract for services and was initially heard by the Industrial Relations Commission. However, before the case could be concluded, legislation was enacted transferring jurisdiction from the Commission to the Court, without any transitional provisions. The central issue was whether the right to have the application determined by the Commission was an accrued right, protected under the Constitution, which could not be extinguished by the legislative change.

The court was required to determine whether the right to have the application reviewed by the Commission constituted an accrued right that could not be taken away by the subsequent legislative amendment. The court considered the nature of the right to a review, the timing of the legislative change, and the effect of the change on the proceedings already underway. The court also had to examine whether the right to a review was sufficiently established prior to the legislative change so as to fall within the protection of the Constitution.

In its decision, the court held that the right to have the application determined by the Commission was indeed an accrued right. The court found that the application had been properly initiated and was sufficiently advanced before the legislative amendment took effect. Consequently, the right to have the Commission determine the application was protected by the Constitution and could not be extinguished by the legislative change. The case was therefore remitted to the Industrial Relations Commission for determination.

The court's final order was that the application be remitted to the Industrial Relations Commission for further proceedings in accordance with law. The decision underscored the importance of protecting accrued rights under the Constitution and the potential impact of legislative changes on ongoing legal proceedings.

Orders