Justin Samlal v Bill Doneski & ors [2007] NSWIRComm 259

Justin Samlal v Bill Doneski & ors [2007] NSWIRComm 259

The applicant's employment contract was between the applicant and the third respondent, Clean Connection Pty Limited. Because the third respondent was under external administration, s440D of the Corporations Act 2001 prevented the proceedings from being continued against it without leave or the administrator's written consent. The parties to the impugned contract had to be parties to the s106 proceedings before the Court could declare or vary the contract and make consequential monetary orders against non-parties under s106(5). Since the applicant discontinued against the third respondent and did not obtain leave to proceed against it, the proceedings could not continue against the first...

Jurisdiction
Australia
Judgment Date
16 October 2007
Procedural Posture
Application Under Section 106 of the Industrial Relations Act 1996 Concerning an Alleged Unfair Contract of Employment / Ex Parte Judgment After the Applicant Filed a Notice of Discontinuance Against the Corporate Respondent and Did Not Obtain Leave Under S440 D of the Corporations Act 2001
Outcome
The summons was dismissed, but the dismissal was not to become final until 14 days after the date of judgment.
Legal Topics
['unfair Contract Under S106 of the Industrial Relations Act 1996' 'stay of Proceedings Against a Company Under Administration' 'leave to Proceed Under S440 D of the Corporations Act 2001' 'necessary Parties to S106 Proceedings' 'consequential Monetary Orders Against Non Parties to a Contract']
['industrial Law' 'corporations Law'] ['unfair Contract Under S106 of the Industrial Relations Act 1996' 'stay of Proceedings Against a Company Under Administration' 'leave to Proceed Under S440 D of the Corporations Act 2001' 'necessary Parties to S106 Proceedings' 'consequential Monetary Orders Against Non Parties to a Contract']

Case Brief

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Procedural Posture

Application Under Section 106 of the Industrial Relations Act 1996 Concerning an Alleged Unfair Contract of Employment / Ex Parte Judgment After the Applicant Filed a Notice of Discontinuance Against the Corporate Respondent and Did Not Obtain Leave Under S440 D of the Corporations Act 2001

Legal Issues

  1. 1 ['Whether proceedings under s106 of the Industrial Relations Act 1996 could continue against individual respondents where the corporate respondent, a party to the impugned contract, was under external administration and leave had not been obtained under s440D of the Corporations Act 2001.' 'Whether orders under s106(5) could be made against non-parties to the impugned contract unless the party to the contract was also a party to the proceedings.']

Ratio Decidendi

The applicant's employment contract was between the applicant and the third respondent, Clean Connection Pty Limited. Because the third respondent was under external administration, s440D of the Corporations Act 2001 prevented the proceedings from being continued against it without leave or the administrator's written consent. The parties to the impugned contract had to be parties to the s106 proceedings before the Court could declare or vary the contract and make consequential monetary orders against non-parties under s106(5). Since the applicant discontinued against the third respondent and did not obtain leave to proceed against it, the proceedings could not continue against the first...

Court Disposition

The summons was dismissed, but the dismissal was not to become final until 14 days after the date of judgment.

Orders

  • ['The summons is dismissed.' 'Order 1 will not become a final order until 14 days after the date of this judgment.' 'The applicant has 14 days from the date of this judgment to make any further application to the Court in relation to the proceedings.']