Kennedy v Contract Transport Solutions Pty Ltd [2003] NSWIRComm 158

Kennedy v Contract Transport Solutions Pty Ltd [2003] NSWIRComm 158

The motion failed because the evidence showed the Cartage Contract was in operation within 12 months before the summons was filed, and the parties' retrospective nomination of 3 February 2002 as the termination date could not alter the fact of actual operation for s108B purposes. In any event, s108B did not retrospectively remove an accrued right to commence s106 proceedings absent clear statutory intention. Further, on the material taken at its highest for Mr Kennedy, the statutory concept of 'contract' could include an arrangement between Mr Kennedy and CTS involving Kennedy Transport Pty Limited and Mr Kennedy's personal services, so lack of standing was not patent.

Jurisdiction
Australia
Judgment Date
19 May 2003
Procedural Posture
Application Under S106 of the Industrial Relations Act 1996 Alleging an Unfair Contract / Interlocutory Judgment on Respondent's Notice of Motion to Strike Out the Summons
Outcome
Respondent's motion to strike out the summons dismissed.
Legal Topics
['application Under S106 of the Industrial Relations Act 1996' 'time Bar Under S108 B of the Industrial Relations Act 1996' 'retrospective Operation of Statutory Amendments' 'standing to Commence Unfair Contract Proceedings' 'strike Out Motion']
['industrial Relations' 'unfair Contracts' 'civil Procedure'] ['application Under S106 of the Industrial Relations Act 1996' 'time Bar Under S108 B of the Industrial Relations Act 1996' 'retrospective Operation of Statutory Amendments' 'standing to Commence Unfair Contract Proceedings' 'strike Out Motion']

Case Brief

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Procedural Posture

Application Under S106 of the Industrial Relations Act 1996 Alleging an Unfair Contract / Interlocutory Judgment on Respondent's Notice of Motion to Strike Out the Summons

Legal Issues

  1. 1 ['Whether the application was made later than 12 months after termination of the contract and was therefore barred by s108B of the Industrial Relations Act 1996.' 'Whether s108B applied retrospectively to bar a right to commence proceedings that had accrued before s108B commenced.' 'Whether Michael Kennedy had standing to bring proceedings concerning the Cartage Contract or an arrangement related to it.' 'Whether the respondent established, on a strike-out motion, that absence of jurisdiction was patent on the material taken at its highest for the applicant.']

Ratio Decidendi

The motion failed because the evidence showed the Cartage Contract was in operation within 12 months before the summons was filed, and the parties' retrospective nomination of 3 February 2002 as the termination date could not alter the fact of actual operation for s108B purposes. In any event, s108B did not retrospectively remove an accrued right to commence s106 proceedings absent clear statutory intention. Further, on the material taken at its highest for Mr Kennedy, the statutory concept of 'contract' could include an arrangement between Mr Kennedy and CTS involving Kennedy Transport Pty Limited and Mr Kennedy's personal services, so lack of standing was not patent.

Court Disposition

Respondent's motion to strike out the summons dismissed.

Orders

  • ['That the motion be dismissed.' 'That the applicant on the motion pay the costs of the respondent to the motion in an amount as agreed or, if not agreed, as assessed.']