Camilleri v Auto Recyclers Pty Limited & Anor [2008] NSWIRComm 84

Camilleri v Auto Recyclers Pty Limited & Anor [2008] NSWIRComm 84

The respondents have not discharged the onus of showing that no conceivable order could be made by the Court that would be within jurisdiction. Accordingly, it is premature to strike out the applicant's amended summons for relief, given the possibility that orders consistent with federal law could be made.

Parties
Applicant (respondent on Motion): Michael Camilleri; First Respondent (applicant on Motion): Auto Recyclers Pty Limited trading as Pick and Pay Less Self Serve Auto Parts; Second Respondent (applicant on Motion): Garry Rush
Jurisdiction
Australia
Judgment Date
24 April 2008
Procedural Posture
Application Under S 106 of the Industrial Relations Act 1996 / Interlocutory Judgment—motion to Strike Out Amended Summons for Relief
Outcome
Strike out motion by respondents refused, proceedings continue.
Legal Topics
Unfair Contract, Federal Award Coverage, Jurisdictional Challenge, Interlocutory Proceedings
Employment Law Industrial Relations Unfair Contract Federal Award Coverage Jurisdictional Challenge Interlocutory Proceedings

Case Brief

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Parties

Michael Camilleri

Applicant (respondent on Motion)

Auto Recyclers Pty Limited trading as Pick and Pay Less Self Serve Auto Parts

First Respondent (applicant on Motion)

Garry Rush

Second Respondent (applicant on Motion)

Procedural Posture

Application Under S 106 of the Industrial Relations Act 1996 / Interlocutory Judgment—motion to Strike Out Amended Summons for Relief

Legal Issues

  1. 1 Whether the court has jurisdiction to grant relief sought under s 106 of the Industrial Relations Act 1996 where employment is covered by a federal award
  2. 2 Whether strike out motion should be granted prior to determining possible inconsistency between state relief and federal award provisions

Ratio Decidendi

The respondents have not discharged the onus of showing that no conceivable order could be made by the Court that would be within jurisdiction. Accordingly, it is premature to strike out the applicant's amended summons for relief, given the possibility that orders consistent with federal law could be made.

Court Disposition

Strike out motion by respondents refused, proceedings continue.

Orders

  • The application by the respondents to strike out the applicant's amended summons for relief is refused.
  • Costs are reserved.