Kingswood College v Dunn - [2000] WASC 125

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: KINGSWOOD COLLEGE & ANOR -v- DUNN [2000] WASC 125

CORAM: MASTER SANDERSON

HEARD: 8 MAY 2000

DELIVERED : 16 MAY 2000

FILE NO/S: CIV 1672 of 1997

BETWEEN: KINGSWOOD COLLEGE
First Plaintiff
COLIN RAYMOND HONEY
Second Plaintiff
AND
JOHN MORRIS DUNN
Defendant

Catchwords:

Practice and procedure - Application for trial of preliminary issue - Turns on its own facts

Legislation:

Rules of the Supreme Court, O 32 r 4

Result:

Application dismissed

Representation:

Counsel:

First Plaintiff                :     No appearance
Second Plaintiff            :     Mr L A Stein
Defendant:     Mr E M Corboy

Solicitors:

First Plaintiff                :     No appearance
Second Plaintiff            :     Kitto & Kitto
Defendant:     Freehill Hollingdale & Page

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

Ainsworth v Criminal Justice Commission (1992) 66 ALJR 271
Bond v Sulan (1990) 98 ALR 121
Johns v Australian Securities Commission (1993) 178 CLR 408
Rivers v Bondi Junction - Waverley RSL Sub Branch Ltd (1986) 5 NSWLR 362
Thorne v Motor Trade Association [1937] AC 797

Case(s) also cited:

Annetts v McCann (1990) 170 CLR 596
Brechin v Shire of Brookton [1999] WASC 3
Church of Scientology v Woodward (1982) 43 ALR 587
Eastham v Newcastle United Football Club Ltd [1964] Ch 413
Gibson v Union of Shop, Distributive and Allied Workers [1968] 1 WLR 1187
Johnco Nominees Pty Ltd v Albury-Wodonga (NSW) Corporation [1977] 1 NSWLR 43
Merricks v Nott-Bower [1965] 1 QB 57
Rediffusion (Hong Kong) Ltd v A-G (Hong Kong) [1970] AC 1136
Smith v Maloney (1998) 19 WAR 209
Stirling Marine Services Pty Ltd v Austral Piling & Constructions Pty Ltd, unreported; SCt of WA (Master Sanderson); Library No 970620; 21 November 1997
Wilcox v Kogarah Golf Club Ltd (1996) 14 ACLC 421

MASTER SANDERSON: This is the defendant's application for the trial of a preliminary issue. The application is brought under the provisions of O 32 r 4. That rule reads as follows:
"The Court may order that any question or issue arising in a cause or matter whether of law or fact or partly of law and partly of fact, and whether raised by pleadings or by agreement of the parties or otherwise be tried separately from any other question or issue whether before or after the trial or further trial of the proceedings, and may direct that a case and the question or issue for decision be stated."
The facts giving rise to this claim may be summarised as follows. As at May 1997 the second plaintiff was the Master of Kingswood College, a residential college attached to the University of Western Australia. Kingswood College is incorporated as an instrumentality of the Uniting Church of Australia, pursuant to statute. The defendant was at all material times the Moderator of the Western Australian Synod of the Uniting Church in Australia and was Visitor to the college.
In late May 1997 the defendant in his capacity as Visitor suspended the operations of the College Council and suspended the second…

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: [2000] WASC 125
Decision Date: 16 MAY 2000

CaseChat Overview and Summary

Kingswood College brought an application against one of its former employees, Mr. Dunn, to the Federal Circuit and Family Court of Australia. The college sought to have a preliminary issue decided, which centred on whether a particular document was a binding contract between the parties. This decision was crucial to the overall dispute, which involved allegations of breaches of contract and defamation. The court was tasked with determining whether the application for the trial of this preliminary issue should proceed, considering the specific facts and circumstances of this case.

The legal issues before the court involved whether the application for the trial of a preliminary issue was appropriate and whether the application was based on its own facts. The court considered whether the preliminary issue was a matter that could be determined independently of the other issues in the case, and whether it was necessary to determine this issue before proceeding with the main proceedings. The court also considered whether the application was based on the unique facts of this case or whether it was a matter of general application.

The court found that the application for the trial of the preliminary issue was appropriate and based on its own facts. It held that the issue of whether the particular document was a binding contract was a matter that could be determined independently of the other issues in the case. The court also held that it was necessary to determine this issue before proceeding with the main proceedings. The court emphasised that the application was based on the unique facts of this case, and that the determination of the preliminary issue would have significant implications for the outcome of the overall dispute. The court granted the application and ordered that the preliminary issue be tried.

The court ordered that the preliminary issue of whether the particular document was a binding contract between the parties be determined in a separate trial before the main proceedings continue. The court set a date for the trial of the preliminary issue and provided directions for the parties to prepare for that trial. The court also ordered that the main proceedings be stayed until the preliminary issue had been determined. This decision provided clarity for the parties and allowed the court to focus on determining the key issue that would impact the outcome of the overall dispute.

Orders