Haysman, M. v Australian Cricket Board - [1989] FCA 363

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )
1

NEW SOUTH WALES DISTRICT REGISTRY ) NO. G17 of 1989

)

GENERAL DIVISION 1

BETWEEN: MICHAEL HAYSHAN
Applicant

AND : AUSTRALIAN CRICKET BOARD

Respondent

8 June 1989

REASONS FOR JUDGMENT

LOCKHART J .

This matter is in the list this morning for further directions and also to deal with a notice of motion which has been taken out by the respondent, the Australian Cricket Board.

paragraphs of the statement of claim.

The motion seeks an order which in effect raises for preliminary determination certain questions which it is said will finally dispose of the matter. The motion also seeks an order for further and better particulars of certain

appropriate for the determination of preliminary questions, I am not persuaded at this stage that that aspect of the motion should succeed. I am not satisfied that the determination of the question set out in paragraph 1 of the motion would necessarily finally dispose of all issues in the proceeding between the parties. I need refer only to one matter for this purpose, namely, that the case for the applicants is pleaded not only on the Trade Practices Act 1974 but also on a common law restraint embodied in paragraphs 18 and 19 of the statement of claim.

There appears to be some substance in the respondent's

contention that there would be a saving of both court time and parties' resources if the preliminary determination did take place, assuming it did finally dispose of all issues. I am not persuaded however that that benefit, in the contingent form it seems to me it is at the moment, outweighs the overriding consideration that the determination of the questions as preliminary questions may not necessarily finally dispose of the issues between the parties.

Before questions are severed under Order 29 rule 2 the Court must be satisfied that the determination of those questions will in truth finally dispose of the rights and liabilities of the parties to the proceedings. I am not so satisfied in this case at the present time. Accordingly I decline to accede to that aspect of the notice of motion.

So far as the request for further and better particulars

is concerned the nub of the dispute relates fo paragraph (b) on pages 1 and 2 of the document headed "Amended Particulars" filed on 6 June last relating to the form of arrangements under which alleged servlces are provided by persons as

professional cricketers in order to play and promote cricket.

At some stage I think the respondent is entitled to know the precise basis of the case asserted against it in relation to those matters. In my view it has sufficient material before it to enable it to properly file a defence in the matter. Soon however there ought to be procedures invoked to ensure that the applrcant is bound as to the particular case he proposes to present. This object could be achieved by limited discovery and…

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: [1989] FCA 363
Decision Date: 8 Jun 1989

CaseChat Overview and Summary

In the Federal Court of Australia, Michael Haysman brought a case against the Australian Cricket Board, seeking redress for certain grievances he faced as a professional cricketer. The case was brought under the Trade Practices Act 1974 and common law principles. The Australian Cricket Board, the respondent, filed a notice of motion seeking a preliminary determination of certain issues and further and better particulars of the applicant's claims. The court had to decide whether the preliminary determination of the issues raised in the motion could dispose of all the matters in dispute and if the respondent was entitled to further and better particulars of the applicant's claims.

The court considered the arguments made by both parties and deliberated on the potential benefits and drawbacks of determining the issues raised in the motion as preliminary questions. The court found that the determination of the issues as preliminary questions may not necessarily dispose of all the issues in the proceeding between the parties. The court held that there was a possibility that the applicant's case could be based on both the Trade Practices Act 1974 and common law principles. Consequently, the court decided that the determination of the issues as preliminary questions would not necessarily dispose of all the issues between the parties, and therefore, declined to accede to that aspect of the notice of motion. However, the court granted the respondent's request for further and better particulars of the applicant's claims, stating that the respondent was entitled to know the precise basis of the case asserted against it.

The court gave directions for the respondent to file and serve its defence on or before 29 June next and for the applicant to file and serve its reply on or before 13 July. The court directed the applicant to file and serve all affidavits on or before 13 July next and the respondent to file and serve all affidavits on or before 24 August next. The matter was adjourned till 1 August next for further directions. The court also gave leave to either party to have issued and served returnable for 1 August next any subpoenas to parties or third parties. The costs of the motion were to be costs in the proceeding.

In conclusion, the court declined to determine the issues raised in the notice of motion as preliminary questions, but granted the respondent's request for further and better particulars of the applicant's claims. The court gave directions for the filing of defences, replies, and affidavits, and adjourned the matter for further directions. The court's decision was based on the potential benefits and drawbacks of determining the issues as preliminary questions and the need for the respondent to know the precise basis of the case asserted against it.

Orders