TD Preece & Co Pty Ltd v Industrial Court of New South Wales

TD Preece & Co Pty Ltd appealed to the Full Bench of the Industrial Court of New South Wales against a finding by a single judge that a contract was unfair. The dispute concerned the application of provisions within the *Industrial Relations Act 1996* (NSW) relating to unfair contracts.

The Full Bench was required to determine whether the single judge had made a jurisdictional error by finding the contract unfair without adequately identifying the specific terms of the contract that were deemed unfair. Further, the court had to consider the proper approach to determining unfairness under the Act and the extent of the Full Bench's jurisdiction on appeal, particularly when considering grounds for unfairness not relied upon by the trial judge, and whether the process adopted by the trial judge afforded procedural fairness.

The Full Bench held that the single judge had indeed committed a jurisdictional error by failing to identify the specific contractual terms that were found to be unfair. The court emphasised that a finding of unfairness requires a clear articulation of which contractual provisions are problematic and why. The Full Bench also clarified its own powers on appeal, noting that while it could consider new grounds, the fundamental requirement for a properly identified basis of unfairness remained. The appeal was allowed on the basis that the original finding of unfairness was vitiated by jurisdictional error.

Consequently, the summons was dismissed with costs.