JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: BOASE -v- SEVEN NETWORK (OPERATIONS) LTD & ANOR [2005] WASC 269
CORAM: MASTER NEWNES
HEARD: 3 NOVEMBER 2005
DELIVERED : 9 DECEMBER 2005
FILE NO/S: CIV 1701 of 2004
BETWEEN: TIMOTHY BOASE
Plaintiff
AND
SEVEN NETWORK (OPERATIONS) LTD (ACN 045 845 262)
First DefendantCHANNEL SEVEN PERTH PTY LTD (ACN 008 679 294)
Second Defendant
Catchwords:
Practice and procedure - Application to amend statement of claim - Unlawful interference with contract - Whether nonpecuniary loss can ground action - Adequacy of pleading - Turns on own facts
Legislation:
Nil
Result:
Application to amend statement of claim refused
Category: B
Representation:
Counsel:
Plaintiff: Mr M L Bennett
First Defendant : Mr P D Evans
Second Defendant : Mr P D Evans
Solicitors:
Plaintiff: Bennett & Co
First Defendant : Freehills
Second Defendant : Freehills
Case(s) referred to in judgment(s):
Atkinson v Fitzwalter [1987] 1 All ER 483
Boral Bricks NSW Pty Ltd v Frost (1987) Aust Torts Reports 80‑097
Byrne v Australian Airlines Ltd (1995) 131 ALR 422
Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Hooker Corporation Ltd v Commonwealth (1986) 65 ACTR 32
Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365
Jones Brothers (Hunstanton) Ltd v Stevens [1955] 1 QB 275
Joyce v Sengupta [1993] 1 All ER 897
Lonrho Plc v Fayed (No 5) [1993] 1 WLR 1489
MacKenzie v MacLachlan [1979] 1 NZLR 670
Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494
Merkur Island Shipping Corp v Laughton [1983] 2 AC 570
Pratt v British Medical Association [1919] 1 KB 244
Riverwood International Australia Pty Ltd v McCormick [2000] FCA 889
Rookes v Barnard [1964] AC 1129
Short v City Bank of Sydney (1912) 15 CLR 148
Sinclair v James [1894] 3 Ch 554
Spring v Guardian Assurance Plc [1993] 2 All ER 273
Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106
Woolley v Dunford (1972) 3 SASR 243
Zhu v Treasurer of the State of New South Wales (2004) 218 CLR 530
Case(s) also cited:
Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (1995) 58 FCR 26
Boase v Seven Network (Operations) Ltd [2004] WASC 245
Boase v Seven Network (Operations) Ltd [2005] WASC 89
Caltex Oil (Australia) Pty Ltd v The Dredge "Willemstad" (1976) 136 CLR 529
D C Thomson & Co Ltd v Deakin [1952] Ch 646
Esanda Finance Corporation Ltd v Alvaro, unreported; SCt of WA; Library No 960539; 18 September 1996
MASTER NEWNES: This is an application by the plaintiff for leave to amend the writ of summons and statement of claim in accordance with minutes of amended writ and statement of claim respectively. That follows the striking out of a previous version of the statement of claim. The proposed amendments are opposed…
Continue reading Boase v Seven Network (Operations) Ltd
Sign in free to access the full text
- AGLC
- Boase v Seven Network (Operations) Ltd [2005] WASC 269
- Case
- [2005] WASC 269
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether the plaintiff should be permitted to amend their pleading to include a claim for non-pecuniary loss in an action for unlawful interference with a contract of employment. The defendants argued that the proposed amendment would result in a pleading that was liable to be struck out, and thus should not be allowed. The court had to weigh the principles of allowing amendments against the risk of the plaintiff being improperly deprived of their day in court, and the potential stifling of the development of the law.
The court held that the plaintiff should not be granted leave to amend their pleading to include a claim for non-pecuniary loss. The court found that the proposed amendment was likely to be struck out because it was embarrassing in form and did not disclose a reasonable cause of action. The court also noted that the amendment would permit the defendants to unilaterally vary the terms of the contract, which was inconsistent with the necessary consensual element of a binding contract. The court emphasised the importance of ensuring that a plaintiff is not improperly deprived of the opportunity to have their case determined at trial, but also noted the need to avoid stifling the development of the law by summarily rejecting claims where there is a reasonable possibility that, as the law develops, it will be found that a cause of action will lie.
The court dismissed the plaintiff's application to amend their statement of claim to include a claim for non-pecuniary loss.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The relevant principles to be applied on an application of this nature are well established. A party will not be granted leave to amend a pleading into a form which is liable to be struck out: Hooker Corporation Ltd v Commonwealth (1986) 65 ACTR 32, at 38, Atkinson v Fitzwalter [1987] 1 All ER 483 at 490, 502, Sinclair v James [1894] 3 Ch 554, at 557. A pleading is liable to be struck out, among other things, if it is embarrassing in form or if it discloses no reasonable cause of action. A pleading will only be struck out on the latter ground where the claim is plainly unarguable and great care must be exercised to ensure that a plaintiff is not improperly deprived of the opportunity to have its case determined at trial: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, at 130. Courts at first instance should also be careful not to risk stifling the development of the law by summarily rejecting claims where there is a reasonable possibility that, as the law develops, it will be found that a cause of action will lie: Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365, at 373. The first objection by the defendants was to par 5 of the minute. It is apparent that par 5 contains in effect two elements; first that it was a term of the contract that the plaintiff would comply with policies stipulated or adopted by the defendants, and secondly that any such policy became a term of the contract as from the time it was adopted by the defendants. The defendants did not complain about the first element. It was submitted, however, that in respect of the second, the minute was objectionable on several grounds. First, it appears that the proposed implied term is said to be necessarily implied, that is, "as a necessary incident of the definable category of contractual relationship". Counsel referred to Byrne v Australian Airlines Ltd (1995) 131 ALR 422 per McHugh and Gummow JJ at 477, 451. If that is the case then the facts said to give rise to the implication must be pleaded and the pleading must set out the circumstances from which it is said such an implied term necessarily forms part of the contract. Counsel referred to Hooker Corporation Ltd v Commonwealth of Australia (supra) at 36. Secondly, the defendants argued that par 5 did not allege a binding contract because, in effect, the plea that once adopted by the defendants a policy became a term of the contract of employment, left the content of the contract entirely in the discretion of the defendants. That is, it permitted the defendants unilaterally to vary the terms of the contract; there was not the necessary consensual element. The defendants relied upon the judgment of North J in the Federal Court in Riverwood International Australia Pty Ltd v McCormick [2000] FCA 889 at [111]. Thirdly, it was submitted that there was an inconsistency between pars 5 and 6 of the minute. Paragraph 5 pleaded an implied term that the plaintiff comply with policies stipulated or adopted by the defendants from time to time, whereas par 6 pleaded that compliance with the Corporate Aviation Policy comprised an express term of the contract of employment. That is, while par 5 pleaded that any policy, once stipulated or adopted, was an implied term of the contract, par 6 pleaded that, at least in respect of one policy, it was an express term of the contract that the plaintiff comply with it.