NEW SOUTH WALES. Industrial Arbitration Act (N.S. W.) (No. 59 of 1901), sec. 36 (b) - Preference to
unionists-Persons offering their labour at the same time-Notice to union of labour required of Court of Arbitration to compel- Prohabition- Construction of Statutes.
Sec. 36 sub-sec. (b) of the Industrial Arbitration Act (N.S.W.) 1901, provides, inter alia, that the Court of Arbitration, in its award or by order made on the application of any party to the proceedings before it, may " direct that as between members of an industrial union of employés and other persons offering their labour at the same time, such members shall be employed in preference to such other persons, other things being equal."
The Court of Arbitration, in an industrial dispute between the appellant and respondent unions, made an award by which preference was ordered to be given to members of the appellant union on compliance with certain conditions as
to the admission of members, and embodied in the order for preference direction that any member of the respondent union requiring labour should whenever reasonably practicable having regard to existing exigencies, notify the secretary of the appellant union of the labour required.
Held, that the Court had no jurisdiction to make the direction as to notice. Decision of the Supreme Court, Ex parte The Master Carriers Association N. S. W., (1905) 5 S.R. (N.S.W.), 77, affirmed.
APPEAL from a decision of the Supreme Court of New South Wales.
The appellant union was an industrial union of employes registered under the Industrial Arbitration Act (N.S.W.), 1901, and the respondent association was also registered under that Act as an industrial union of employers. An industrial dispute between the union and the association was referred to the Court of Arbitration, and that Court, after hearing, made all award on 15th November, 1904, which contained the following clause :-
"27. If and SO long as the rules of the union permit, or the union admits, a competent driver of sober habits and good repute to become a member" (on compliance with certain require- ments which it is not necessary to set out), "then as between members of the claimant union (whose secretary, whenever reasonably practicable, having regard to existing exigencies, shall be notified of the labour required), and other persons offer- ing their labour at the same time, members of the claimant union shall be employed in preference to such other persons, other things being equal," (subject to certain exceptions not material in this appeal, and with a direction that non-unionists entering the employment of members of the respondent association should apply to become members of the appellant union within a specified time). " When unionists and non-unionists are employed together they shall work in harmony, and receive equal pay for equal work."
The respondent Association on 15th…
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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Hadley v Baxendale [1905] HCA 20
Case
[1905] HCA 20
Decision Date
CaseChat Overview and Summary
The case of *Hadley v Baxendale* concerned a dispute between Hadley, an employer, and Baxendale, a supplier of goods. Hadley sought to recover damages from Baxendale for a breach of contract. The specific nature of the dispute involved Hadley's claim for losses incurred due to a delay in the delivery of goods, which Hadley alleged prevented him from fulfilling his own contractual obligations. The matter came before the High Court of Australia.
The central legal issue before the High Court was the recoverability of damages for breach of contract. Specifically, the court had to determine the principles governing the remoteness of damages, that is, what types of loss are recoverable when a contract is breached. This involved considering whether the damages claimed by Hadley were a foreseeable consequence of Baxendale's breach.
The High Court applied the rule established in the English case of *Hadley v Baxendale* (though this is an Australian case, it refers to the foundational English case for the principle). The court held that damages are recoverable for breach of contract if they arise naturally, that is, according to the usual course of things, from the breach of contract itself. Alternatively, damages are recoverable if they are such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. In this instance, the court found that the losses claimed by Hadley were not within the reasonable contemplation of the parties at the time the contract was formed, and therefore, they were too remote to be recovered.