Kilminster v Sun Newspapers Ltd

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 Specifically, the court had to determine whether the notice period prescribed by the award superseded or modified the contractual entitlement to "reasonable notice," particularly given that the award provided for a shorter notice period than Kilminster might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 The respondent argued that the award, having been made after the contract, effectively superseded the contractual terms regarding termination of employment, and that the two-month notice period stipulated in the award should be considered reasonable.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.