Ross Sinclair v Hawker De Havilland Pty Ltd [2003] NSWIRComm 413

Ross Sinclair v Hawker De Havilland Pty Ltd [2003] NSWIRComm 413

The facts as pleaded in the applicant's summons could permit an inference that the contract was unfair within the meaning required for s106 relief, and that s109A does not bar the application since relief sought may exceed that available under Part 6. Accordingly, there is an arguable case and the motion to dismiss is refused.

Parties
Applicant (respondent to Motion): Ross Sinclair; Respondent (applicant on the Motion): Hawker De Havilland Pty Ltd
Jurisdiction
Australia
Judgment Date
18 November 2003
Procedural Posture
Industrial Application Under S106 of the Industrial Relations Act 1996 / Ruling on Notice of Motion to Dismiss for Want of Jurisdiction
Outcome
Motion to dismiss application refused
Legal Topics
Interpretation of S109 a, Jurisdiction Under S106 and Interaction With Unfair Dismissal Provisions, Unfair Dismissal, Unfair Contracts
Industrial Law Interpretation of S109 a Jurisdiction Under S106 and Interaction With Unfair Dismissal Provisions Unfair Dismissal Unfair Contracts

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 7 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Ross Sinclair

Applicant (respondent to Motion)

Hawker De Havilland Pty Ltd

Respondent (applicant on the Motion)

Procedural Posture

Industrial Application Under S106 of the Industrial Relations Act 1996 / Ruling on Notice of Motion to Dismiss for Want of Jurisdiction

Legal Issues

  1. 1 Whether the applicant's s106 application is barred by s109A of the Industrial Relations Act 1996 because relief could be obtained under Part 6 (unfair dismissal).
  2. 2 Whether the facts pleaded are sufficient to found a claim under s106 rather than within Part 6.

Ratio Decidendi

The facts as pleaded in the applicant's summons could permit an inference that the contract was unfair within the meaning required for s106 relief, and that s109A does not bar the application since relief sought may exceed that available under Part 6. Accordingly, there is an arguable case and the motion to dismiss is refused.

Court Disposition

Motion to dismiss application refused

Orders

  • The motion is dismissed.
  • The applicant on the summons (Ross Sinclair) is to have his costs paid by the respondent to the summons (Hawker De Havilland Pty Ltd).