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McGee v Sanders (No 2)

McGee v Sanders (No 2)

Case [1991] FCA 554 15 May 1991

Appeal

Discovery & Disclosure

Interlocutory Orders

Implied Terms

Unconscionable Conduct

Contract Formation

Civil Litigation & Procedure

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5 7

(IVDGMENT No. . ........ . ..l ..-... L

THE FEDERAL COURT OF AUSTRAL IA ) l

-1A DISTRICT REGISTRY 1

JJDUSTRIAL DIVISION ) No. TI '2 of 1990

BETWEEN: KENNET N ROACH
Applicant

AND: HY -ELECTR SION

19 SEP 1991

Respondent

AUSTRALIA PRINCIPAL

-rm

JUDGE MAKING ORDER% PINCUS J.

OF ORDER: 15 MAY 1991

WHERE: HOBART
m COURT ORDERS THAT:
1.    The application to amend be allowed.
2.    Further particulars be given of paragraphs 8 and 10 by 29 May 1991.
3.    Defence be filed and served by 5 June 1991.
4.    Discovery be by list and verified by affidavit by 19 June 1991.
5 .     Inspection be by 26 June 1991.

KX€E: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.
6. The matter be listed for further directions at 9.30 a.m. on Tuesday, 16 July 1991.
7. Costs of today be costs in the proceedings.

m COURT DIRECTS THAT:
8. The parties may approach the Registrar to vary the date for directions.

a THE FEDERAL COURT OF AUSTRALIA 1

-1A DISTRICT REGISTRY 1 '

INDUSTRIAL DIVISION 1 No. TI 2 of 1990
BETWEEN: KENNETH JOHN ROACY
Applicant

AND : HYDRO-ELECTRIC COMMISSION
Respondent

a: PINCUS J.
PLBI;E: HOBART
15 MAY 1991
$X TEMPORE REASONS FOR JUDGMENT

This is an application to amend a statement of claim which was made by an interlocutory application filed on 10 May 1991. The principal proceedings seek to challenge the legality of the dismissal of the applicant. The matter came before Morling J. in March this year, producing reasons for judgment which set out the nature of the proceedings sufficiently, and I do not find it necessary to repeat what his Honour said. Those reasona are dated 18 April 1991.

The first point to notice about Morling J.'s

reasons is that the clause governing dismissal under the award set out on p.8 was sought to be affected by an implied term, with which his Honour dealt at pp.8 and 9. The substance of what was then put up was that the applicant was entitled to mount a case that the right of aumary dismissal mentioned in
clause 23 was cut down or otherwise affected by a course of
dealing by the employer. His Honour said this:
"On behalf of the applicant, Mrs Mills submitted that the alleged implied term would not be inconsistent with the award because it did no more than clarify the circumstances in which a dismiseal could occur. In effect, she submitted that the effect of the term being implied would be to require the words of the last sentence in c1.23 of the award to be interpreted as meaning that the Hydro-Electric Comnission may only terminate a contract of employment 'for conduct justifying instant dismissal' where to do so would not be harsh, unjust and unreasonable. According to the argument, an employeere conduct may, prima facie, justify instant dismissal, but it will not do so if the dismissal would be harsh,…

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 McGee v Sanders (No 2)

Details

AGLC: McGee v Sanders (No 2) [1991] FCA 554
Case: [1991] FCA 554
Decision Date: 15 May 1991

CaseChat Overview and Summary

In the case of McGee v Sanders (No 2), the applicant, Kenneth John Roach, seeks to challenge the legality of his dismissal by the Hydro-Electric Commission, the respondent. The matter was previously heard by Morling J., who issued reasons for judgment on 18 April 1991. This case involves an interlocutory application to amend the statement of claim filed on 10 May 1991. The primary legal issues before the court include whether the applicant can establish an implied term in the employment contract that restricts the employer's right to summarily dismiss the employee, and whether promissory estoppel can be used as a cause of action.

The court considered whether the proposed clause 8, which aimed to imply a term restricting the employer's right to summarily dismiss the employee, was inconsistent with the terms of the award. Pincus J. found that the argument presented by the applicant was not tenable and that the proposed clause was inconsistent with clause 23 of the award. However, the court allowed the amendment, reasoning that the applicant's prospects were not so dismal as to deny him the chance of advancing the case. The court also considered whether the proposed paragraph 10, which raised the issue of promissory estoppel, could be pleaded. The court found that it was sufficiently arguable to be pleaded, even though it may not necessarily lead to success.

The court ordered that the application to amend be allowed, with further particulars to be given by 29 May 1991. The defence must be filed and served by 5 June 1991. Discovery by list, verified by affidavit, is to be completed by 19 June 1991, with inspection by 26 June 1991. The matter is to be listed for further directions at 9.30 a.m. on Tuesday, 16 July 1991. The costs of the hearing are to be costs in the proceedings. The court also directs that the parties may approach the Registrar to vary the date for directions if necessary.

Orders