Noakes and anor v Adams and anor [2005] NSWIRComm 48

Noakes and anor v Adams and anor [2005] NSWIRComm 48

Taking the allegations in the proposed amended summons at their highest, the asserted arrangement concerning occupation of the café/restaurant, preparation of counter meals ordered through the respondents' hotel, and supply of snacks was capable of supporting an arguable allegation of a contract or arrangement whereby work was performed in an industry. The respondents did not discharge the heavy interlocutory burden of showing the proposed amended summons lacked any arguable legal foundation or fell outside s 106 jurisdiction. The unfairness allegations also were not confined to mere breaches of contract and included matters such as absence of secure tenure, inability to sell alcohol as...

Jurisdiction
Australia
Judgment Date
14 March 2005
Procedural Posture
Application Under S 106 of the Industrial Relations Act 1996 / Interlocutory Judgment on Respondents' Notice of Motion Seeking to Preclude the Applicants From Filing a Proposed Further Amended Summons
Outcome
Respondents' notice of motion dismissed; costs reserved; liberty to apply granted.
Legal Topics
['contract or Arrangement Whereby a Person Performs Work in an Industry' 'strike Out or Dismissal for Want of Jurisdiction' 'lease and Catering Arrangements for Café/restaurant Attached to Hotel' 'sale of Alcohol, Counter Meals and Snacks' 'amendment of Summons']
['industrial Relations' 'unfair Contracts' 'jurisdiction' 'interlocutory Procedure'] ['contract or Arrangement Whereby a Person Performs Work in an Industry' 'strike Out or Dismissal for Want of Jurisdiction' 'lease and Catering Arrangements for Café/restaurant Attached to Hotel' 'sale of Alcohol, Counter Meals and Snacks' 'amendment of Summons']

Case Brief

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Procedural Posture

Application Under S 106 of the Industrial Relations Act 1996 / Interlocutory Judgment on Respondents' Notice of Motion Seeking to Preclude the Applicants From Filing a Proposed Further Amended Summons

Legal Issues

  1. 1 ['Whether the proposed amended summons disclosed an arguable cause of action within the jurisdiction of the Commission under s 106 of the Industrial Relations Act 1996.' 'Whether the alleged lease, catering and related arrangements were a contract or arrangement whereby a person performs work in an industry.' 'Whether parts of an alleged arrangement not themselves characterised as involving work in an industry should be excised from the proceedings at an interlocutory stage.' 'Whether the allegations of unfairness were impermissibly based only on conduct in breach of contract under the approach in Sydney Water Corporation v Industrial Relations Commission of New South Wales [2004] NSWCA 436.']

Ratio Decidendi

Taking the allegations in the proposed amended summons at their highest, the asserted arrangement concerning occupation of the café/restaurant, preparation of counter meals ordered through the respondents' hotel, and supply of snacks was capable of supporting an arguable allegation of a contract or arrangement whereby work was performed in an industry. The respondents did not discharge the heavy interlocutory burden of showing the proposed amended summons lacked any arguable legal foundation or fell outside s 106 jurisdiction. The unfairness allegations also were not confined to mere breaches of contract and included matters such as absence of secure tenure, inability to sell alcohol as...

Court Disposition

Respondents' notice of motion dismissed; costs reserved; liberty to apply granted.

Orders

  • ["The respondents' notice of motion seeking to preclude the applicants from filing a proposed further amended summons is dismissed." 'Costs are reserved and liberty to apply with respect to costs is granted.' 'Liberty to apply generally.']