Prentice v Nugan Packing Co Pty Ltd - [1950] HCA 51

RESPONDENT,

NUGAN PACKING COMPANY PROPRIE-

TARY LIMITED APPELLANT,

ON APPEAL FROM THE SUPREME COURT OF Industrial Law-Wages-Recovery-Rate fixed by award-Termination of employ-

ment-Limitation of time-District Court-Jurisdiction-Industrial Arbitration Act 1940-1948 (N.S.W.) (No. 2 of 1940-No. 13 of 1948), S. 92 (2) (3).

A District Court is deprived by S. 92 (2) of the Industrial Arbitration Act Nov. 10, 24.

1940-1948 (N.S.W.) of jurisdiction to entertain an action under S. 92 (3) of that Act for the recovery of unpaid arrears of wages for which a price or rate has been fixed by an award where the action was commenced more than six months after the termination of the employment in respect of which the wages were earned.

Decision of the Supreme Court of New South Wales (Full Court): Ex parte Nugan Packing Co. Pty Ltd.; Re Prentice, (1950) 50 S.R. (N.S.W.) 222 67 W.N. 137, affirmed.

APPEAL from the Supreme Court of New South Wales.

On 26th September 1949, Norman Bowen Prentice instituted an action in the District Court holden at Casino, New South Wales, against Nugan Packing Co. Pty Ltd. for the recovery of the sum of £184 18s. 4d., which was alleged to have become due to him as wages during the last twelve months of his employment with that company as a motor waggon driver under the Carters and Motor Waggon Drivers (State) Award.

The ground of defence material to this report notified by the defendant to the plaintiff was that the claim was for the amount

81 CLR 559

of an alleged balance due in respect of a price or rate fixed by an award or industrial agreement made under the Industrial Arbitra- tion Act 1940-1946 (N.S.W.) and the employment of the plaintiff with the defendant terminated more than six months before the commencement of the action and the defendant relied upon S. 92 of that Act.

Section 92, SO far as relevant to this report, provides 1 Where an employer employs any person to do any work for which the price or rate has been fixed by an award, or by an industrial agreement, made under this Act, or by the conditions of a permit issued under section eighty-nine of this Act, he shall be liable to pay in full in money to such person the price or rate SO fixed without any deduction except such as may be authorized by any award or industrial agreement or permit as the case may be. (2) Such person may apply in the manner prescribed to an industrial magis- trate for an order directing the employer to pay the full amount of any balance due in respect of such price or rate which became due during the period of twelve months immediately preceding the date of the application (where such person is still in the employment of such employer at that date) or within the last twelve months of the employment with such employer (where the employment was terminated before the date of the application).…

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 Prentice v Nugan Packing Co Pty Ltd

Details

AGLC: Prentice v Nugan Packing Co Pty Ltd [1950] HCA 51
Case: [1950] HCA 51
Decision Date: 24 November 1950

CaseChat Overview and Summary

Norman Bowen Prentice (the appellant) sued Nugan Packing Co. Pty Ltd. (the respondent) in the District Court of New South Wales for recovery of unpaid wages allegedly due under an industrial award. The appellant's employment had terminated more than six months prior to the commencement of the action. The respondent contended that the District Court lacked jurisdiction due to the time limitation prescribed by section 92 of the *Industrial Arbitration Act 1940-1948* (N.S.W.). The District Court judge found in favour of the appellant, but the Full Court of the Supreme Court of New South Wales made absolute an order nisi for a writ of prohibition, restraining further proceedings on the judgment. The appellant appealed this decision to the High Court of Australia.

The central legal issue before the High Court was whether the six-month time limit for making an application to an industrial magistrate for the recovery of unpaid wages, as stipulated in section 92(2) of the *Industrial Arbitration Act*, also applied to an action brought in a District Court or Court of Petty Sessions under section 92(3) of the same Act. Section 92(3) provided that a person could, "in lieu of applying for an order under sub-section two," sue for any balance due in a District Court or Court of Petty Sessions. The appellant argued that the time limitation in section 92(2) applied only to applications before an industrial magistrate, and that actions in District Courts were subject only to general statutes of limitation.

The High Court, by majority, dismissed the appeal. The Court reasoned that the phrase "in lieu of applying for an order under sub-section two" in section 92(3) indicated that the District Court action was an alternative remedy available only while the primary remedy before the industrial magistrate remained open. Therefore, the time limitation imposed on applications to the industrial magistrate also applied to actions brought in the District Court. This interpretation was supported by the legislative history and the need to avoid absurd consequences, such as a significantly longer limitation period for District Court actions compared to those before an industrial magistrate. The Court affirmed the decision of the Supreme Court, holding that the District Court action was out of time.

Orders