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…
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- AGLC
- Gerrard v Mayne Nickless [1995] IRCA 25
- Case
- [1995] IRCA 25
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: NORTHROP J
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