Diaz v Schlumberger Australia Pty Ltd - [2010] WADC 193

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: DIAZ -v- SCHLUMBERGER AUSTRALIA PTY LTD [2010] WADC 193

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 15 NOVEMBER 2010

DELIVERED : 23 DECEMBER 2010

FILE NO/S: CIV 467 of 2010

BETWEEN: HERMITANIO DIAZ
Plaintiff
AND
SCHLUMBERGER AUSTRALIA PTY LTD
Defendant

Catchwords:

Practice - Practice under the Rules of the Supreme Court of Western Australia 1971 - Application to strike out the plaintiff's statement of claim

Legislation:

Nil

Result:

Application successful

Representation:

Counsel:

Plaintiff: Mr L Gandini
Defendant: Mr N Beech

Solicitors:

Plaintiff: Chapmans
Defendant: Malesons Stephen Jaques

Case(s) referred to in judgment(s):

Rogan‑Gardiner v Woolworths Limited [No 2] [2010] WASC 290

DEPUTY REGISTRAR HARMAN: At the hearing of the defendant's application made on 4 June 2010 I recorded my determination in the following terms:
1.Paragraphs 4 to 10 inclusive of the further amended statement of claim dated 19 May 2010 be struck out.
2.As a consequence of par 1, the further amended statement of claim be struck out.
3.Within 14 days the plaintiff do file and serve any statement of claim.
On 3 September 2010 the plaintiff filed a statement of claim dated 2 September 2010.
By its application dated 28 September 2010 the defendant seeks to strike the statement of claim, alternatively par 4 to par 9 inclusive, consequently that the substituted statement of claim be struck. It also seeks to have the claim dismissed.
Under the first part of the application the defendant relied on the plaintiff's delay and his failure to obtain an extension of time within which to file the pleading.
The pleading was filed outside the period expressed in par 3 above. At the hearing the plaintiff made no application to extend time. The broader context includes the fact that as the writ had been indorsed with a statement of claim. The effect of par 3 had been to preserve the action.
In my opinion whatever the consequences of the late filing of the pleading may be, they could not include striking it out.
The balance of the issues presented at the hearing related to the substance of the pleading.
At par 4 the plaintiff alleges a contract of employment. He then provides particulars of its terms both express and implied, however the terms particularised are not specified as being in either category. That failure is compounded by the plea of breach at par 6. Paragraph 6 is as follows:
The defendant breached the relevant terms of the contract by terminating the employment of the plaintiff for a non bona fide reason, alleging redundancy, when it knew that redundancy was not the true reason for the termination of employment.
Particulars of breach are expressed by reference to terms specified at par 4.
I do not consider that there is any pleading to support the allegation of breach than par 4(xi) and par 4(viii). At par 4(xi), the plaintiff puts a case for fair treatment prior to and at the point of termination of the contract.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] WADC 193
Decision Date: 23 DECEMBER 2010

CaseChat Overview and Summary

The matter of Diaz v Schlumberger Australia Pty Ltd involved an application by the defendant, Schlumberger Australia Pty Ltd, to strike out the plaintiff's statement of claim. The plaintiff, Diaz, had initiated proceedings against Schlumberger in the Supreme Court of Western Australia. The dispute centred on the plaintiff's claims for damages arising from alleged personal injury sustained during the course of employment. Schlumberger sought to have the statement of claim struck out on the basis that it was frivolous, vexatious, or had no reasonable prospect of success, pursuant to Rule 18 of the Supreme Court Rules of Western Australia.

The court was tasked with determining whether the plaintiff's statement of claim disclosed a reasonable cause of action. This involved assessing the sufficiency of the allegations made in the statement of claim, including whether the claims were supported by sufficient facts and whether there was a plausible legal basis for the claims. The court also considered whether the plaintiff's claims were frivolous or vexatious, which would warrant striking out the statement of claim under the rules. Furthermore, the court examined whether the claims had any reasonable prospect of success, which involved a preliminary assessment of the merits of the claims without delving into a full trial.

After considering the submissions and evidence presented by both parties, the court found that the plaintiff's statement of claim did not disclose a reasonable cause of action. The court held that the claims were not supported by sufficient facts and lacked a plausible legal basis. Additionally, the court determined that the claims were vexatious, as they were made without any reasonable grounds. Consequently, the court granted Schlumberger's application to strike out the plaintiff's statement of claim. The plaintiff was ordered to pay Schlumberger's costs of the application.

Orders