Canada by which it was provided that he should remain in that service until the expiration of reasonable notice to be given by either party, salary being fixed on a yearly basis. After entering upon his duties he became a member of an industrial organization which subsequently applied for, and obtained from the Commonwealth Court of Conciliation and Arbitration, an award covering his calling. Clause 22 of the award provided that "the employment of a member

shall not without just cause in law be terminated by either party unless," in the case of the plaintiff, "two months' notice of such termination shall have been given." The defendant company gave to the plaintiff two months' notice of its intention to terminate his employment. In an action by the plaintiff for damages on the ground that such notice was not "reasonable notice " as required by the agreement,

Held, that the provisions of clause 22 did not interfere with the plaintiff's right ex contractu for a period of notice longer than that prescribed by the

Judgment of the Supreme Court of New South Wales (Full Court): Kilminster v. Sun Newspaper Ltd., (1931) 31 S.R. (N.S.W.) 472, reversed.

46 CLR 285

APPEAL from the Supreme Court of New South Wales.

In an action brought by Stanley August Kilminster against the Sun Newspapers Ltd., a company incorporated under the laws of New KILMINSTER South Wales and carrying on the business of a newspaper proprietor within that State, the plaintiff claimed £1,000 damages on the ground of the wrongful termination of an agreement in pursuance of which he had, whilst in Canada, been engaged to work for the Company in Sydney under certain terms and conditions.

The declaration, dated 7th November 1930, stated that " by an agreement made in

Canada between the plaintiff, who was then a cable specialist, and the defendant, in consideration that the plaintiff would enter into the service of the defendant and serve it until the service should be determined as hereinafter mentioned, as a member of the staff of the defendant's newspaper in Sydney for the salary of £650 per annum, the defendant promised the plaintiff to retain him in the said service until the expiration of a reasonable notice to be given by the plaintiff or the defendant to the other of them to determine the said service and the plaintiff entered into the said service on the terms aforesaid and so continued therein for a long time, and until the breach of the said promise hereinafter alleged, and was always ready and willing to continue in the said service until the said service should be determined as aforesaid whereof…

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 Kilminster v Sun Newspapers Ltd

Details

AGLC: Kilminster v Sun Newspapers Ltd [1931] HCA 37
Case: [1931] HCA 37
Decision Date: 23 November 1931

CaseChat Overview and Summary

This case involved an appeal to the High Court of Australia from a judgment of the Supreme Court of New South Wales. The appellant, Stanley August Kilminster, had entered into a contract of employment in Canada with the respondent, Sun Newspapers Ltd., to work as a journalist in Sydney. The contract stipulated that his employment would continue until reasonable notice was given by either party, with his salary fixed on a yearly basis. After commencing employment in Sydney, Kilminster joined the Australian Journalists' Association, which subsequently obtained an award from the Commonwealth Court of Conciliation and Arbitration. Clause 22 of this award stipulated a two-month notice period for the termination of employment for members in Kilminster's grade. Sun Newspapers Ltd. gave Kilminster two months' notice of termination, which he contended was insufficient, arguing it did not meet the "reasonable notice" requirement of his original contract.

The central legal issue before the High Court was the effect of the industrial award on the pre-existing contractual rights of the employee. Specifically, the court had to determine whether the notice period prescribed by the award superseded or modified the contractual entitlement to "reasonable notice," particularly given that the award provided for a shorter notice period than Kilminster might have otherwise been entitled to under his contract, and that his contractual salary exceeded the minimum prescribed by the award. The respondent argued that the award, having been made after the contract, effectively superseded the contractual terms regarding termination of employment, and that the two-month notice period stipulated in the award should be considered reasonable.

The High Court held that the provisions of clause 22 of the award did not interfere with the plaintiff's contractual right to a period of notice longer than that prescribed by the award. The Court reasoned that the award merely set a minimum standard for notice and did not extinguish or diminish the parties' pre-existing contractual rights to agree upon different or more beneficial terms. Therefore, the two-month notice provided by the employer was not necessarily reasonable in the context of the original contract. The appeal was allowed, the judgment of the Supreme Court of New South Wales was reversed, and judgment was entered for the plaintiff on both demurrers, with the defendant's demurrers being overruled.

Orders