Payne v PCH Group Pty Ltd
[2012] WADC 52
•4 APRIL 2012
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: PAYNE -v- PCH GROUP PTY LTD [2012] WADC 52
CORAM: SCOTT DCJ
HEARD: 28 MARCH 2012
DELIVERED : 4 APRIL 2012
FILE NO/S: CIV 2994 of 2010
BETWEEN: GARY PAYNE
Plaintiff
AND
PCH GROUP PTY LTD
First DefendantCAPE AUSTRALIA HOLDINGS PTY LTD
Second Defendant
Catchwords:
Appeal from Deputy Registrar refusing to order further and better particulars - Alternatively leave to administer interrogatories - Matters in question in proceedings - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 O 27
District Court Rules 2005 O 15
Result:
Appeal allowed in part
First defendant to provide further and better particulars to request 4.3
Leave to administer interrogatories in par 2 of notice of appeal refused
Representation:
Counsel:
Plaintiff: Mr B P Wheatley
First Defendant : Mr B R Jackson
Second Defendant : Mr B R Jackson
Solicitors:
Plaintiff: Mossensons
First Defendant : DLA Piper Australia
Second Defendant : DLA Piper Australia
Case(s) referred to in judgment(s):
Nil
SCOTT DCJ: This is an appeal from orders made by Deputy Registrar Hogan on 25 January 2012 in which she refused to order the defendants to give further and better particulars of their defence which had been requested by the plaintiff namely:
Request 1as to paragraph 4 of the defence, give particulars of the duties and responsibilities of the position of Scaffolding Construction Manager Pluto LNG Karratha; and
Request 4.3the type of scaffold referred to in the email.
In the alternative, in the notice of appeal, the plaintiff seeks leave to administer the following interrogatories to the first defendant:
•Specify the duties and responsibilities of the plaintiff in the position of first defendant's Scaffolding Construction Manager Pluto LNG Karratha
•Specify the type of scaffold that the plaintiff was directed to arrange for the construction of by the email dated 8 May 2010 from Ben Charlton, Access Coordinator, namely whether it was a spur, cantilever, hang/drop, free‑standing tower scaffold where the height exceeds three (3) times its base width and stayed by guy ropes or loading bay bearing type scaffolding specifying which type
The appeal from a registrar lies to a judge pursuant to O 15 of the District Court Rules 2005 (DCR). The appeal is by way of hearing de novo meaning that this court is required to exercise its powers whether or not there was an error at first instance.
As to the plaintiff's alternative application for leave to interrogate in the manner to which I have referred that leave is required to be sought pursuant to O 27 r 1 of the Rules of the Supreme Court 1971 (RSC) by which this court is bound.
The purpose of particulars is to make a party's case plain. On the other hand the purpose of interrogatories is to prove some material fact necessary to the cause of action or defence. The purpose of the requirement that leave be granted is to ensure that the interrogatories that are administered serve a legitimate forensic purpose. The burden of answering them must be proportionate to the forensic purpose to be served.
The right to interrogate is not confined to facts directly in issue in the proceedings but extends to any facts the existence or non‑existence of which is relevant to the existence or non‑existence of the facts directly in issue.
In exercising the discretion to grant leave to administer interrogatories the court will have regard to the system of positive case flow management by virtue of O 1 r 4B RSC. Interrogatories must be carefully drawn such that the answer is both clear and unequivocal in order that the answer may, if desired, be tendered at the trial.
Issues in the proceedings
By par 4 of the amended statement of claim the plaintiff pleads that he was employed by the first‑named defendant as a Scaffolding Construction Manager and pleads that the agreement between him and the first‑named defendant was in writing. That plea is admitted by the first‑named defendant in its defence (par 4).
In par 5 of the amended statement of claim the plaintiff pleads the express terms of the contract including (in par 5(vii)) cl 9 which refers to the matters which are included in the definition of serious misconduct. Relevantly one of those matters is the plaintiff wilfully disobeying any lawful order or direction of the Cape Group.
The first‑named defendant admits those express terms (par 5) in addition to which it pleads that the contract provided that the first‑named defendant could summarily terminate the plaintiff's employment if he committed an act of serious misconduct.
The first‑named defendant then pleads further express terms of the contract including:
•By cl 10 of the contract the plaintiff would comply with all Relevant Acts, Regulations, Codes of Practice, Management Plans and lawful directions in relation to the workplace policies, procedures and practices of the plaintiff (which in its pleading the first‑named defendant defines as the Compliance with Directions Clause).
•The provisions of the Code of Conduct set out in Annexure A to the contract which incorporates express terms that the plaintiff would (inter alia) comply with all reasonable and legal instructions.
The plaintiff pleads (in par 8) that his employment was terminated on or about 1 June 2010 on the basis of serious misconduct. The plaintiff then pleads particulars which do not relate to the termination and ought not appear as part of par 8.
The essence of the plaintiff's claim is that the first‑named defendant was not entitled to terminate his employment summarily.
In its defence the first‑named defendant pleads (in par 8) the material facts upon which it relies in support of its contention that the plaintiff's employment under the contract was validly terminated for serious misconduct. Specifically those material facts are:
•By email dated 8 May 2010 from Ben Charlton, Access Coordinator (email) the Plaintiff was directed (the Direction) to arrange for the construction of a scaffold (par 8.1)
•The Direction constituted a lawful order or direction under the serious misconduct clause which if wilfully disobeyed would entitle the first‑named defendant to terminate the plaintiff's employment summarily (par 8.2)
•Pursuant to the Compliance with Directions Clause and the Code of Conduct, the plaintiff was required to construct the scaffold in accordance with codes of practice including (as there defined) the FWW Scaffold Safety Document (par 8.3)
•In accordance with the FWW Scaffold Safety Document the scaffold to be constructed by the plaintiff in accordance with the Direction was required to be designed by an engineer and have engineering design approval because (by the particulars to par 8.4) the scaffolding was of the type referred to therein which required engineering design approval as per AS/NZS 4576: 1995 (there defined as Australian/New Zealand Standard Guidelines for Scaffolding) prior to erection (par 8.4)
•Pursuant to the Australian/New Zealand Standard Guidelines for Scaffolding the scaffold was required to be designed and verified for compliance by an engineer experienced in structural design
The first‑named defendant then pleads (par 10) that the plaintiff wilfully breached the Direction, the FWW Scaffold Safety Document and the Australian/New Zealand Standard Guidelines for Scaffolding in the manner referred to therein and by par 11 pleads that these breaches constituted serious misconduct pursuant to the contract in respect to which the first‑named defendant was entitled to summarily terminate the plaintiff's employment pursuant to the contract and did so.
In his reply the defendant says (inter alia):
•He was not provided with a 'position description' for the position of Scaffolding Construction Manager (par 1)
•By par 4 that:
(a)the email was not a lawful order or direction from the first‑named defendant to the plaintiff;
(b)the email did not specify what type of scaffolding was required; and
(c)the FWW Scaffold Safety Document was not a condition of the contract.
•He did not wilfully disobey a lawful order or direction of the first‑named defendant (par 6)
By cl 3 of the contract the plaintiff was required to 'perform the duties which are contained in the position description and with the reasonable directions'. There is no definition of the term 'position description' in the contract.
By cl 12 of the contract the document was said to represent the entire agreement of the parties in relation to the plaintiff's employment.
Issues on pleadings
The pleaded issues between the parties can be distilled as follows:
1.Whether the email constituted a direction the wilful disobedience of which would constitute serious misconduct.
2.Whether the FWW Scaffold Safety Document constituted a document with which, pursuant to the contract, the plaintiff was required to comply.
3.Whether the scaffold referred to in the email was a type of scaffold requiring design by an engineer and to have engineering design approval.
4.Whether the plaintiff wilfully disobeyed a direction resulting in serious misconduct entitling the first‑named defendant to summarily dismiss him.
It is within this framework that the matters falling for determination by me in this appeal must be considered.
Further and better particulars
Request 1
The first‑named defendant's case as pleaded is that it was entitled to summarily dismiss the plaintiff for serious misconduct on the grounds that he wilfully disobeyed a direction namely the direction communicated by the email pursuant to which he was required to arrange for the construction of a scaffold in accordance with the FWW Scaffold Safety Document and the Australian/New Zealand Standard Guidelines for Scaffolding which are said to be incorporated as part of the code of practice with which the plaintiff was required to comply.
The plaintiff's case is that the email was not, pursuant to the contract, a lawful order or direction and that he was not required to comply with the FWW Scaffold Safety Document or the Australian/New Zealand Standard Guidelines for Scaffolding in any event. As a consequence, the plaintiff says, he committed no act amounting to serious misconduct such that the first‑named defendant was entitled to summarily dismiss him.
There is no pleaded issue that the plaintiff committed a breach of any other duty with which he had to comply pursuant to the contract.
In the circumstances the particular requested is not one which will assist the plaintiff in making the first‑named defendant's case clearer to him. The breach upon which the first‑named defendant confines its case for summary termination is the wilful disobedience by the plaintiff with the Direction and the codes of practice. As a consequence this is not a request for particulars which the first defendant need answer.
Request 4.3
This is a proper request. For the plaintiff to be required to comply with the FWW Scaffold Safety Document and the Australian/New Zealand Standard Guidelines for Scaffolding by the scaffold being designed by an engineer and having engineering design approval the scaffold would need to fall within the description of scaffolds pleaded in the particulars to par 8.4. Arguably, if the type of scaffolding did not comply with that description then the plaintiff would not have that obligation and would thereby not be in breach as the first‑named defendant contends. The first‑named defendant is required to answer that request.
Interrogatories
The plaintiff contends in his reply that there is no 'position description', in accordance with the contract, for the position of Scaffolding Construction Manager.
By the first proposed interrogatory the plaintiff requires the first‑named defendant to define the plaintiff's duties as Scaffolding Construction Manager. In my view the duties which the plaintiff is required to undertake must be a matter of agreement between the parties pursuant to the contract which governs the rights and obligations of both parties in accordance with its terms.
In the event that there has not been a 'position description' provided to the plaintiff by the first‑named defendant then the nature of the duties may need to be determined, if they be an issue, by reference to matters such as the conduct of the parties and perhaps the usual duties which by industry standards are implied in a position of this nature.
As a consequence what the first‑named defendant may understand those duties to be is not necessarily relevant. In addition there may be a myriad of duties for which the plaintiff may have obligations which bear no relationship to the matters the subject of these proceedings.
Further, as I have said, even though interrogatories need not be confined to a specific issue in proceeding they must however be relevant to a material fact in issue. In this case the issue is whether the plaintiff wilfully disobeyed the Direction. There is no allegation by the first‑named defendant nor any assertion by the plaintiff that relates to any other duty which the plaintiff was liable to undertake.
In the circumstances leave will not be granted for the plaintiff to administer this interrogatory for examination of the first‑named defendant.
Given my order that the first‑named defendant answer request 4.3 the other interrogatory falls away.
The appeal will be allowed with respect to request 4.3. Leave to interrogate in the manner sought is refused.
I will hear the parties on the issue of costs.
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