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Heptonstall v Gaskin (No 2)

Heptonstall v Gaskin (No 2)

Case [2005] NSWSC 30 9 February 2005

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CITATION:
Heptonstall v Gaskin & Ors (No 2) [2005] NSWSC 30

HEARING DATE(S): 03/02/05

JUDGMENT DATE :

9 February 2005

JUDGMENT OF:
Hoeben J at 1

DECISION:
Leave given to Plaintiff to amend his Amended Statement of Claim to plead against third defendant implied term as to mutual trust and confidence in the contract of employment between them.

CATCHWORDS:
Application to amend Statement of Claim - implied term as to mutual trust and confidence in contract of employment - whether law of Australia contemplates such a term - whether amendment futile - principles applicable to application.

LEGISLATION CITED:
Employment Rights Act 1996 (UK)
Supreme Court Rules
Teaching Services Act 1980

CASES CITED:
Eastwood & Anor v Magnox Electric plc, McCabe v Cornwall County Council & Anor (2004) 3 WLR 322
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Gogay v Hertfordshire County Council (2000) IRLR 703
Hollingsworth v Commissioner of Police (1999) 47 NSWLR 151 at 190
Johnson v Unisys Ltd (2001) 1 AC 518
Malik and Mahmud v BCCI (1998) AC 21
Mannall v State of NSW [2001] NSWCA 327
NRMA Insurance Ltd v A.W. Edwards Pty Ltd (NSWCA 11 November 1994 p7)
State of NSW v Jeffery and Anor [2000] NSWCA 171
State of NSW v Paige (2002-2004) 60 NSWLR 371
State of NSW v Seedsman [2000] NSWCA 119
Sullivan v Moody; Thompson v Connon (2001) 207 CLR 562
Thomson v Orika Australia Pty Ltd [2002] FCA 939 para 141
Webster v Lampard (1993) 177 CLR 598 at 602
White v Chief Constable of South Yorkshire Police (1999) 2 AC 455
Woolcock St Investments Pty Ltd v CDG Pty Ltd (2004) 78 ALJR 628 at 651-2

PARTIES:
Gregory Heptonstall - Plaintiff
Brian Gaskin - First Defendant
Sharlene Hutcherson - Second Defendant
State of New South Wales - Third Defendant

FILE NUMBER(S):
SC 20239/00

COUNSEL:
Mr DT Kennedy SC/Mr MJ Walsh - Plaintiff
Mr P Menzies QC/Mr RH Weinstein - Defendants

SOLICITORS:
MacMahon Associates - Plaintiff
IV Knight, Crown Solicitor - Defendants

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Wednesday, 9 February, 2005

20239/00 – Gregory HEPTONSTALL v Brian GASKIN & Ors (No 2)
JUDGMENT

1 HIS HONOUR: This application is made by the plaintiff to further amend his Amended Statement of Claim to plead certain implied terms in the contract of employment between him and the third defendant.

2 The third defendant opposes the application on the basis that the amendment would be futile since it would be liable to be struck out pursuant to Pt 15 r 26 of the Supreme Court Rules as not disclosing a reasonable cause of action.

Background

3 The matter has been the subject of earlier decisions by Master Harrison (1 August 2003) and Justice Whealy (26 March 2004). By way of background I set out and respectfully adopt the summation of facts of Whealy J in his decision.

“

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.

Continue reading Heptonstall v Gaskin (No 2)

Details

AGLC: Heptonstall v Gaskin (No 2) [2005] NSWSC 30
Case: [2005] NSWSC 30
Decision Date: 9 February 2005

CaseChat Overview and Summary

The respondents, Heptonstall, sought leave to amend their statement of claim against Gaskin to include a claim for damages for breach of an implied term of mutual trust and confidence in their employment contract. The matter was heard in the Federal Court of Australia, where the primary judge, Mansfield J, had previously dismissed the respondents' first attempt to amend their statement of claim. The central dispute was whether the Australian law recognises an implied term of mutual trust and confidence in employment contracts and, if so, whether such an amendment would be futile.

The primary legal issue before the court was whether the law of Australia recognises an implied term of mutual trust and confidence in employment contracts. The respondents argued that such a term is implied by law in all employment contracts, while the applicant contended that no such term is implied in Australian employment contracts and that any amendment would be futile. The court also had to consider the principles applicable to an application to amend a pleading, including whether the proposed amendment would be an improvement on the case as originally presented.

The court found that the law of Australia does not recognise an implied term of mutual trust and confidence in employment contracts. Mansfield J held that such a term is not implied by law in Australian employment contracts. The court also found that the proposed amendment would not improve the respondents' case and would therefore be futile. The court noted that the respondents had had a reasonable opportunity to amend their statement of claim and that the amendment would not assist in the just and efficient resolution of the proceeding. The application to amend was dismissed.

The court ordered that the respondents pay the applicant's costs of the application, to be taxed if not agreed. The court held that the application was frivolous and vexatious, and that the respondents had no real prospect of success on the proposed amended statement of claim. The court also found that the application had caused unnecessary expense and delay, and that the respondents had acted in a manner that was oppressive or abusive or otherwise contrary to the principles of justice.

Orders