Kennett v Industrial Court of NSW [2010] NSWCA 307

Kennett v Industrial Court of NSW [2010] NSWCA 307

The Full Bench of the Industrial Court made no jurisdictional error. Schmidt J was entitled to take into account Excelsior's retention of funds because it was sufficiently connected with the varied contract and relevant to what payment was just under s 106(5). The Full Bench correctly treated r 209 as requiring dereliction of duty or blameworthy conduct before costs could be ordered against a practitioner, and Schmidt J had misapplied that rule to Dr Berwick's illness. The Full Bench also addressed the correct procedural fairness issue concerning the costs orders against Ms Muc and Mr Healey. Accordingly, supervisory relief under s 69 was not available.

Jurisdiction
Australia
Judgment Date
17 November 2010
Procedural Posture
Summons Under Supreme Court Act 1970 (nsw), S 69 Seeking Supervisory Relief in Respect of the Industrial Court of New South Wales / Court of Appeal Judgment on Summons From Decisions of the Full Bench of the Industrial Court of NSW
Outcome
Summons dismissed with costs
Legal Topics
['supervisory Jurisdiction' 'jurisdictional Error' 'industrial Court Costs Orders' 'unfair Contracts Under Industrial Relations Act 1996 (nsw), S 106' 'industrial Relations Commission Rules 1996, R 209' 'procedural Fairness']
['courts and Judicial System' 'industrial Law' 'administrative Law' 'costs'] ['supervisory Jurisdiction' 'jurisdictional Error' 'industrial Court Costs Orders' 'unfair Contracts Under Industrial Relations Act 1996 (nsw), S 106' 'industrial Relations Commission Rules 1996, R 209' 'procedural Fairness']

Case Brief

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Procedural Posture

Summons Under Supreme Court Act 1970 (nsw), S 69 Seeking Supervisory Relief in Respect of the Industrial Court of New South Wales / Court of Appeal Judgment on Summons From Decisions of the Full Bench of the Industrial Court of NSW

Legal Issues

  1. 1 ['Whether the Full Bench of the Industrial Court committed jurisdictional error by refusing leave to appeal where Schmidt J had taken into account the retention by Excelsior Pty Ltd of funds to which Mayrana Pty Ltd was entitled.' "Whether the Full Bench committed jurisdictional error by overturning Schmidt J's costs orders against Dr Berwick on the construction of Industrial Relations Commission Rules 1996, r 209." "Whether the Full Bench committed jurisdictional error in concluding that Schmidt J denied Ms Muc and Mr Healey procedural fairness when making costs orders against them on Professor Kennett's motion."]

Ratio Decidendi

The Full Bench of the Industrial Court made no jurisdictional error. Schmidt J was entitled to take into account Excelsior's retention of funds because it was sufficiently connected with the varied contract and relevant to what payment was just under s 106(5). The Full Bench correctly treated r 209 as requiring dereliction of duty or blameworthy conduct before costs could be ordered against a practitioner, and Schmidt J had misapplied that rule to Dr Berwick's illness. The Full Bench also addressed the correct procedural fairness issue concerning the costs orders against Ms Muc and Mr Healey. Accordingly, supervisory relief under s 69 was not available.

Court Disposition

Summons dismissed with costs

Orders

  • ['The summons is dismissed with costs.']