SUPREME COURT OF QUEENSLAND
CITATION:
Jakeman Constructions Pty Ltd v Boshoff [2014] QCA 354
PARTIES:
JAKEMAN CONSTRUCTIONS PTY LTD
ACN 056 027 911
(applicant)
v
JOHANNES CHRISTOFFEL BOSHOFF
(respondent)FILE NO/S:
Appeal No 5352 of 2014
DC No 4901 of 2013DIVISION:
Court of Appeal
PROCEEDING:
Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
19 December 2014
DELIVERED AT:
Brisbane
HEARING DATE:
16 October 2014
JUDGES:
Fraser JA, Mullins and Henry JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
1. Grant the application for leave to appeal.
2. Allow the appeal with costs (not including the costs of the applicant’s application for leave to adduce evidence in the appeal).
3. Set aside the orders made in the District Court on 14 May 2014.
4. Instead order that the respondent’s application for summary judgment be dismissed.
5. The applicant’s application for leave to adduce evidence is refused on the grounds that it is not necessary to consider it.
6. The applicant is to bear its own costs of the application for leave to adduce evidence.
7. The respondent be granted an indemnity certificate in respect of the appeal under s 15 of the Appeal Costs Fund Act 1973 (Qld).
CATCHWORDS:
PROCEDURE – JUDGMENTS AND ORDERS – IN GENERAL – STATEMENT OF REASONS FOR DECISION – where the respondent sued the applicant for damages for “wrongful dismissal” and “breach of contract of employment” and applied for summary judgment – where the primary judge gave summary judgment for the respondent’s claim for “wrongful dismissal” – whether the primary judge gave adequate reasons for giving summary judgment
PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS CIVIL JURISDICTION – PRACTICE – PROCEDURE BEFORE TRIAL – DISPOSITION WITHOUT TRIAL – where the respondent sued for “wrongful dismissal” and was granted summary judgment – where there will be a trial for the respondent’s remaining claims for relief – where the applicant employer had dismissed the respondent with four weeks pay in lieu of notice – where the applicant argues the fixed term employment contract had been previously varied to permit this, which gave rise to an arguable defence to the part of the claim for which summary judgment was granted – whether the applicant had no real prospects of successfully defending that part of the claim – whether there was no need for a trial of that part of the claim
EMPLOYMENT LAW – CONTRACT OF SERVICE – VARIATION OF CONTRACT – where the respondent had pleaded he had been wrongfully dismissed, but had not pleaded that he had accepted the dismissal as a repudiation and elected to terminate the employment contract – whether the statement of claim required amendment
Appeal Costs Fund Act 1973 (Qld), s 15
Uniform Civil Procedure Rules 1999 (Qld), r 292Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41, cited
AL Powell Holdings Pty Ltd v Dick[2012] QCA…
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- AGLC
- Jakeman Constructions Pty Ltd v Boshoff [2014] QCA 354
- Case
- [2014] QCA 354
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the primary judge provided adequate reasons for granting summary judgment in favour of the respondent's claim for wrongful dismissal, and whether the applicant had any real prospects of successfully defending the claim. Specifically, the court needed to determine if the fixed term employment contract had been varied to permit the dismissal with four weeks pay in lieu of notice, which would constitute an arguable defence.
The court found that the primary judge did not provide sufficient reasons for granting summary judgment, as there was an arguable defence that the employment contract had been varied. The court held that the applicant had a real prospect of successfully defending the wrongful dismissal claim, and that the respondent's application for summary judgment should have been dismissed. Consequently, the appeal was allowed, the orders made by the District Court were set aside, and it was ordered that the respondent's application for summary judgment be dismissed instead. The applicant's application for leave to adduce evidence was refused, and the respondent was granted an indemnity certificate in respect of the appeal.
Orders
Orders of the court
1. Grant the application for leave to appeal.
2. Allow the appeal with costs (not including the costs of the applicant’s application for leave to adduce evidence in the appeal).
3. Set aside the orders made in the District Court on 14 May 2014.
4. Instead order that the respondent’s application for summary judgment be dismissed.
5. The applicant’s application for leave to adduce evidence is refused on the grounds that it is not necessary to consider it.
6. The applicant is to bear its own costs of the application for leave to adduce evidence.
7. The respondent be granted an indemnity certificate in respect of the appeal under s 15 of the Appeal Costs Fund Act 1973 (Qld).
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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