Practice and procedure - Application to strike out statement of claim - Contract of employment - Alleged implied terms as to mutual good faith, trust and confidence and procedural fairness - Struck out as untenable - Allegation of unlawful termination for cause - Pleading is embarrassing - Leave to re-plead

Legislation:

Nil

Result:

Appeal allowed in part
Leave to re-plead claim for breach of express terms of the contract

Representation:

Counsel:

Plaintiff: Mr C Edwards
Defendant: Ms M Saraceni

Solicitors:

Plaintiff: Delta Legal
Defendant: Hopgood Ganim

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

Addis v Gramophone Co Ltd (1909) AC 488
Bednall v Wesley College [2005] WASCA 101
BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 ALR 356
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 65; 104 ALR 1
Dare v Pulham (1982) 148 CLR 658
Electricity Generation Corporation v Woodside Energy Ltd (2004) 251 CLR 640
Foggo v O'Sullivan Partners (Advisory) Pty Ltd (2011) NSWSC 501
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Hancock Prospecting Pty Ltd v Wright Prospecting Pty (2012) 45 WAR 29
Intico (Victoria) Pty Ltd v Walmsley (2004) VSCA 90
John Holland Pty Ltd v Miami Gold (WA) Pty Ltd & Ors [2006] WASC 141
Kulkarni v Milton Keynes Hospital NHS Trust (2010) ICR 101
Neilson v City of Swan [2006] WASCA 94
Nikolich v Goldman Sachs JB Were Services Pty Ltd [2006] FCA 784
Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405
Ramsey v Annesley College (2013) SASC 72
Rogan‑Gardiner v Woolworths Ltd [2010] WASC 290
Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359
Walker v City Group Global Markets Pty Ltd [2005] FCA 1678; (2005) 226 ALR 114

MCCANN DCJ:

Introduction

In this matter the plaintiff claims damages for breach of contract allegedly arising from his dismissal as an underground mine superintendent. He contends that his dismissal and its antecedents breached express and implied terms of his contract of employment with the defendant (the Contract).
The defendant denies that the Contract included the alleged implied terms and further denies that it breached the express terms of the contract.
On 6 October 2016 Deputy Registrar Hewitt granted leave to the defendant to bring an application out of time and struck out the statement of claim. He held that there were no implied terms as alleged by the plaintiff and, further, based on the pleaded facts, the defendant did not breach the express terms of the Contract.
The plaintiff has appealed…

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 Pettit v Evolution Mining Limited [No 2]

Details

AGLC: Pettit v Evolution Mining Limited [No 2] [2017] WADC 68
Case: [2017] WADC 68
Decision Date: 25 MAY 2017

CaseChat Overview and Summary

The case before the court involved the plaintiff, Pettit, against Evolution Mining Limited, a mining company. The dispute centred on the termination of Pettit's employment, with allegations of unlawful termination and implied terms in the contract of employment. Pettit sought to amend his statement of claim to include additional terms, which the defendant contested. The court was tasked with deciding whether the plaintiff's statement of claim was sufficient to proceed and whether the allegations were legally tenable.

The legal issues before the court included whether the plaintiff's statement of claim could be struck out as untenable and whether there was a basis for the plaintiff to re-plead. The court considered the standard for striking out a statement of claim, the requirements for pleading implied terms in a contract of employment, and whether the allegations of unlawful termination and implied terms were legally sufficient. The court also had to weigh the plaintiff's right to amend his pleadings against the potential prejudice to the defendant.

The court found that the plaintiff's statement of claim was untenable and struck it out. The plaintiff's allegations regarding implied terms of mutual good faith, trust and confidence, and procedural fairness were deemed insufficient as a matter of law. The court held that the plaintiff's allegations of unlawful termination for cause were also untenable and potentially embarrassing. However, the court granted leave to the plaintiff to re-plead, allowing him to amend his statement of claim with the opportunity to properly allege the necessary terms and causes of action.

The final orders of the court included the striking out of the plaintiff's original statement of claim and the granting of leave to the plaintiff to re-plead within a specified timeframe. The court provided detailed guidance on the necessary amendments to the statement of claim to ensure that the pleadings met the legal requirements for proceeding with the action.

Orders