Mitchforce Pty Ltd v Starkey (No.2) [2003] NSWIRComm 458

Mitchforce Pty Ltd v Starkey (No.2) [2003] NSWIRComm 458

The appeal was upheld on the basis that, as a matter of comity with the decision of the Court of Appeal, there was insufficient foundation in the facts to depart from the majority's view that neither the lease nor the rent deferral arrangement constituted an arrangement whereby work was performed in any industry for the purposes of s 106 of the Industrial Relations Act 1996. The evidence did not satisfy the statutory jurisdictional test, and thus the Commission lacked jurisdiction to grant relief on the basis of an unfair contract.

Jurisdiction
Australia
Judgment Date
17 December 2003
Procedural Posture
Appeal / Full Bench Decision on Application to Reopen, Leave to Appeal, and Appeal
Outcome
Appeal upheld; orders at first instance set aside
Legal Topics
['unfair Contracts' 'jurisdiction' 'arrangements Under S 105 and S 106 Industrial Relations Act 1996' 'lease Arrangements' 'comity' 'statutory Construction']
['industrial Relations' 'employment Law' 'contract Law'] ['unfair Contracts' 'jurisdiction' 'arrangements Under S 105 and S 106 Industrial Relations Act 1996' 'lease Arrangements' 'comity' 'statutory Construction']

Case Brief

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Procedural Posture

Appeal / Full Bench Decision on Application to Reopen, Leave to Appeal, and Appeal

Legal Issues

  1. 1 ["Whether the lease, or a broader arrangement including the lease, was a contract or arrangement 'whereby a person performs work in any industry' within the meaning of s 105 and s 106 of the Industrial Relations Act 1996" 'Whether the Commission had jurisdiction to set aside or vary the lease or related arrangements as an unfair contract' 'Whether the rent deferral arrangement constituted such an arrangement within jurisdiction' "Effect and meaning of 'whereby' in the relevant statutory tests" 'Principles of comity with Court of Appeal']

Ratio Decidendi

The appeal was upheld on the basis that, as a matter of comity with the decision of the Court of Appeal, there was insufficient foundation in the facts to depart from the majority's view that neither the lease nor the rent deferral arrangement constituted an arrangement whereby work was performed in any industry for the purposes of s 106 of the Industrial Relations Act 1996. The evidence did not satisfy the statutory jurisdictional test, and thus the Commission lacked jurisdiction to grant relief on the basis of an unfair contract.

Court Disposition

Appeal upheld; orders at first instance set aside

Orders

  • ['Leave to reopen the decision of the Full Bench delivered on 30 April 2002 is granted.' 'Leave to appeal is granted.' 'Appeal is upheld and the orders made by Hungerford J at first instance are set aside.' 'Leave to apply generally as to the issue of costs, to be filed no later than 16 February 2004, with short...