Newnham & Anor v Production Spray Painting & Panel Beating Pty Limited

This matter came before the High Court of Australia concerning an application for special leave to appeal. The applicants were Robert Henry Newnham and another party, while the first respondent was Production Spray Painting & Panel Beating Pty Limited. The Industrial Commission of New South Wales was also a respondent, though it submitted to the Court's orders except as to costs. The core of the dispute revolved around the interpretation and application of section 88F of the Industrial Arbitration Act.

The central legal issue before the High Court was the meaning and scope of the word "whereby" in section 88F of the Industrial Arbitration Act. This section confers jurisdiction on the Industrial Commission when a contract is entered into whereby a person performs work in an industry, provided one of the five specified grounds is established. The applicants sought to clarify whether this jurisdiction extended to contracts for the sale of a business to individuals who intended to become, and did become, working proprietors of that business.

The Court considered its previous decision in *Stevenson v Barham*, which established a test for jurisdiction under section 88F, requiring the contract to lead directly to a person working in an industry. The Privy Council in *Caltex Oil (Australia) Pty Ltd v Feenan* had also addressed the meaning of "whereby," interpreting it as "in consequence of which" or "in fulfilment of which," without disapproving of the High Court's reasoning. The applicants argued that the Industrial Commission had consistently applied section 88F to contracts for the sale of businesses to working proprietors, a trend acknowledged by the Court of Appeal. The applicants' submission suggested that their interpretation of "whereby" would indeed extend the application of section 88F to any sale of a business that was to be continued by the purchaser.