Pearce v International Mining Technologies Ltd

Case [2009] WASCA 239

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   PEARCE -v- INTERNATIONAL MINING TECHNOLOGIES LIMITED [2009] WASCA 239

CORAM:   PULLIN JA

NEWNES JA

HEARD:   8 DECEMBER 2009

DELIVERED          :   23 DECEMBER 2009

FILE NO/S:   CACV 58 of 2009

BETWEEN:   ALAN FRANCIS PEARCE

First Appellant

TODD ANDREW PEARCE
Second Appellant

A & T PEARCE PTY LTD (ACN 093 787 369)
Third Appellant

AND

INTERNATIONAL MINING TECHNOLOGIES LIMITED (ACN 088 606 464)
First Respondent

RD CATALAN INVESTMENTS PTY LTD
Second Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :BEECH J

Citation  :PEARCE -v- INTERNATIONAL MINING TECHNOLOGIES LTD [2009] WASC 120

File No  :CIV 2046 of 2007, CIV 1268 of 2008

Catchwords:

Practice and procedure - Appeal against dismissal of application for further and better particulars - Caution exercised by appellate court in reviewing interlocutory decision on matter of practice or procedure - Particular applicability to procedural decision of judge in CMC List

Legislation:

Nil

Result:

Leave to appeal refused

Category:    B

Representation:

Counsel:

First Appellant               :     Mr M J McPhee

Second Appellant          :     Mr M J McPhee

Third Appellant             :     Mr M J McPhee

First Respondent           :     Mr J C Giles

Second Respondent      :     Mr J C Giles

Solicitors:

First Appellant               :     M J McPhee Barrister & Solicitor

Second Appellant          :     M J McPhee Barrister & Solicitor

Third Appellant             :     M J McPhee Barrister & Solicitor

First Respondent           :     Tottle Partners

Second Respondent      :     Tottle Partners

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

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170

Pearce v International Mining Technologies Ltd [2009] WASC 120

Re the Will of FB Gilbert (Dec) (1946) 46 SR (NSW) 318

The State of Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40

Wilson v Metaxas [1989] WAR 285

  1. JUDGMENT OF THE COURT:  On 8 December 2009, we dismissed the appellants' application for leave to appeal against a decision of Beech J of 8 May 2009 in which his Honour dismissed the appellants' application for further and better particulars of the respondents' amended defence and counterclaim:  Pearce v International Mining Technologies Ltd [2009] WASC 120. We said we would provide reasons for our decision later. These are our reasons.

The relevant pleadings

  1. In the statement of claim, filed on 4 April 2008, the appellants allege that they were employed by the first respondent as executive directors pursuant to written contracts of service.  They allege that under those contracts they were entitled to various benefits in the event of the termination of their employment.  The appellants plead that their contracts were terminated without notice and they did not receive the benefits to which they were entitled.

  2. In the amended defence and counterclaim, filed 12 December 2008, the first respondent denies the contracts of employment and, in the alternative, says that if the first respondent entered into any employment agreements with the appellants, those agreements were rescinded by the…

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Pearce v International Mining Technologies Ltd [2009] WASCA 239
Case
[2009] WASCA 239
Decision Date

CaseChat Overview and Summary

The case of Pearce v International Mining Technologies Ltd was heard in the Court of Appeal of Western Australia. The appellants, who were former executive directors of the first respondent, sought to appeal against a decision by Beech J dismissing their application for further and better particulars in relation to the amended defence and counterclaim. The dispute centred on the nature and extent of the contracts of employment between the parties and the alleged improper receipt of funds from AusIndustry. The appellants argued that they were owed benefits upon the termination of their employment and sought further particulars regarding the respondents' counterclaim that they had misused AusIndustry grant funds.

The primary legal issue before the court was whether the appellants were entitled to appeal against the dismissal of their application for further and better particulars. The court had to determine whether Beech J's decision was an interlocutory order of a procedural nature, which would require the appellants to demonstrate special circumstances to appeal against it. The court also needed to consider whether the appellants' application for further and better particulars was appropriate, particularly in the context of the detailed schedules provided in the respondents' pleadings.

The Court of Appeal dismissed the appellants' application for leave to appeal. The court held that Beech J's decision was an interlocutory order of a procedural nature and, as such, required the appellants to demonstrate special circumstances to appeal. The court found that the appellants had not shown such circumstances. The court further noted that the respondents had provided detailed schedules itemising the alleged ineligible expenditure, which provided a sufficient basis for the appellants to respond to the counterclaim. The court exercised caution in reviewing the interlocutory decision, recognising the particular applicability of procedural rules in the CMC List.

In light of the above, the Court of Appeal dismissed the appellants' application for leave to appeal and affirmed the decision of Beech J. The court did not provide specific orders beyond the dismissal of the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: On 8 December 2009, we dismissed the appellants' application for leave to appeal against a decision of Beech J of 8 May 2009 in which his Honour dismissed the appellants' application for further and better particulars of the respondents' amended defence and counterclaim: Pearce v International Mining Technologies Ltd [2009] WASC 120. We said we would provide reasons for our decision later. These are our reasons. In the statement of claim, filed on 4 April 2008, the appellants allege that they were employed by the first respondent as executive directors pursuant to written contracts of service. They allege that under those contracts they were entitled to various benefits in the event of the termination of their employment. The appellants plead that their contracts were terminated without notice and they did not receive the benefits to which they were entitled. In the amended defence and counterclaim, filed 12 December 2008, the first respondent denies the contracts of employment and, in the alternative, says that if the first respondent entered into any employment agreements with the appellants, those agreements were rescinded by the parties and the appellants waived all termination entitlements. The respondents allege by way of counterclaim that the appellants breached their duties as directors, among other things, in respect of funds received from AusIndustry. That case is pleaded in pars 57 to 73 of the amended defence and counterclaim. In par 57, the respondents plead that, in August 2004, the second appellant, with the knowledge and consent of the first appellant, completed a written application on behalf of the first respondent to AusIndustry for a research and development grant with respect to the development of the first respondent's Collision Avoidance System. They plead that the grant was approved and that it 'was payable only in relation to services or materials used by [first respondent] to develop the Collision Avoidance System'. It is alleged in par 58 that from December 2004 to 12 January 2007 the appellants caused the first respondent to make written applications to AusIndustry for payments, purportedly pursuant to that grant, and to receive payments from AusIndustry paid to or at the direction of the first respondent. The monthly amounts received are particularised. In pars 59 to 64, the respondents plead certain sub‑periods of the period from December 2004 to 2007. For each sub‑period, the respondents plead the amount for which the appellants caused the first respondent to apply, and the (lesser) amount that is alleged to have been eligible expenditure properly claimable under the AusIndustry grant. Those allegations are particularised in detailed schedules attached to the pleading. The schedules contain an item‑by‑item breakdown of the expenditure referred to, identifying which items of expenditure (or in the case of employee expenses what proportion of the expenditure) the respondents say was for the Collision Avoidance System project (the CAS project) and therefore eligible expenditure under the AusIndustry grant, and which was not.

Ratio Decidendi

Legal Principle Established

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