Naven v Okewood Pty Ltd t/as Perth Glory FC
[2015] WADC 27
•23 MARCH 2015
NAVEN -v- OKEWOOD PTY LTD t/as PERTH GLORY FC [2015] WADC 27
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 27 | |
| Case No: | CIV:2624/2014 | 3 MARCH 2015 | |
| Coram: | DEPUTY REGISTRAR HARMAN | 23/03/15 | |
| PERTH | |||
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | GARETH NAVEN OKEWOOD PTY LTD t/as PERTH GLORY FC |
Catchwords: | Practice Practice under the Rules of the Supreme Court of Western Australia 1971 Application for trial of an issue Application under O 31 r 2 alternatively O 32 r 4 of the Rules of the Supreme Court 1971 |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
OKEWOOD PTY LTD t/as PERTH GLORY FC
Defendant
Catchwords:
Practice - Practice under the Rules of the Supreme Court of Western Australia 1971 - Application for trial of an issue - Application under O 31 r 2 alternatively O 32 r 4 of the Rules of the Supreme Court 1971
Legislation:
Nil
Result:
Application dismissed
Representation:
Counsel:
Plaintiff : Mr S Kemp
Defendant : Mr M Bruce
Solicitors:
Plaintiff : Jackson McDonald
Defendant : Bennett & Co
Case(s) referred to in judgment(s):
1 DEPUTY REGISTRAR HARMAN: One of the questions revealed upon the close of pleadings is whether the engagement of the plaintiff was for a fixed term.
2 The action has progressed beyond mediation. In the event that the action is entered for trial it will go to a listing conference.
3 The plaintiff has now applied for trial of the issue:
On a proper construction of the contract of employment between the plaintiff and the defendant dated 17 April 2013, was the defendant entitled to terminate the contract prior to the end of the defined term:
(a) only on the ground set out in clause 10.2; or
(b) on the ground set out in clause 10.2 and also by notice under clause 10.3?
4 Whether the application engages either O 31 r 2 or O 32 r 4 of the Rules of the Supreme Court 1971 the court has an unfettered discretion and the onus is on the plaintiff. The defendant opposed the application.
5 The plaintiff projects efficiencies, cost savings and enhanced prospects of settlement predicated upon his success on trial of the issue. Fundamental to the defendant's opposition is the fact that if the plaintiff is then unsuccessful a number of liability issues would remain to be determined.
6 Reflection on the prospects of settlement exposes the fact that even in the context of mediation the parties have been unable to resolve the plaintiff’s claim to $104,508.00 on satisfactory terms. Accordingly it is difficult to ignore the prospect that to one or both parties there is more to the litigation than appears on the close of pleadings. It follows that I have some reservations that the plaintiff’s success at the trial of the issue would generate any impetus towards settlement.
7 My assessment of each of the plaintiff’s propositions is that they reduce to questions of degree. In contrast the case of the defendant is unassailable.
8 For the court to require an issue to be put to trial would impinge upon the usual progression of litigation and bring the undesirable consequences of delay in its conclusion and increased cost to the parties.
9 On the case put by the plaintiff there is no clear benefit upon which to found a determination in his favour.
10 I am not persuaded that it is appropriate to make the order sought.
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