ROGAN-GARDINER -v- WOOLWORTHS LTD [2005] WASC 194

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 194
Case No:	CIV:2149/2004	Heard:	27 JULY 2005
Coram:	MASTER SANDERSON	Delivered:	29/08/05
No of pages:	12	Judgment Part:	1 of 1
Result:	Leave to amend refund
Category:	A
PDF Version

Parties:	MICHELLE ROGAN-GARDINER WOOLWORTHS LTD (ABN 88 000 014 675)
Catchwords:	Practice and procedure Application to strike out paragraph of defence Observation on utility of strikeout application
Legislation:	Minimum Conditions of Employment Act 1993 (WA), s 33, s 38
Case References:	Brackenridge v Toyota Motor Corporation Australia Ltd (1996) 142 ALR 999 The Burton Group Ltd v Smith (1977) IRLR 351 Thickbroom v Newcastle Wallsend Coal Co Pty Ltd (1989) 83 IR 193 B G Gale Ltd v Gilbert [1978] ICR 1149 CFMEU v Oakbridge Pty Ltd, unreported; FedCt of NSW; 556 of 1998; 27 July 1998 Chapman v Christopher Ltd [1981] IRLR 440 Dalgety Australia Ltd v Rubin, unreported; SCt of WA; Library No 5485; 24 August 1984 Easling v Mahoney Insurance Brokers Ltd (2001) 78 SASR 489 Fryar v Service Systems Pty Ltd (1996) 137 ALR 321 Hospitals Contribution Fund of Australia v Hunt (1984) 44 ALR 365 Kimberley Downs Pty Ltd v Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986 Morton Sundour Fabrice Ltd v Shaw [1967] 2 ITR 84 Thomson v Orica Aust Pty Ltd (2002) 116 IR 186

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : ROGAN-GARDINER -v- WOOLWORTHS LTD [2005] WASC 194 CORAM : MASTER SANDERSON HEARD : 27 JULY 2005 DELIVERED : 29 AUGUST 2005 FILE NO/S : CIV 2149 of 2004 BETWEEN : MICHELLE ROGAN-GARDINER

Plaintiff

AND

WOOLWORTHS LTD (ABN 88 000 014 675)

Defendant

Catchwords:

Practice and procedure - Application to strike out paragraph of defence - Observation on utility of strikeout application

Legislation:

Minimum Conditions of Employment Act 1993 (WA), s 33, s 38

Result:

Leave to amend refund

(Page 2)

Category: A

Representation:

Counsel:

Plaintiff : Dr P R MacMillan

Defendant : Mr P B O'Neal

Solicitors:

Plaintiff : Stephen Kemp

Defendant : Clayton Utz

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

Brackenridge v Toyota Motor Corporation Australia Ltd (1996) 142 ALR 999
The Burton Group Ltd v Smith (1977) IRLR 351
Thickbroom v Newcastle Wallsend Coal Co Pty Ltd (1989) 83 IR 193

Case(s) also cited:

B G Gale Ltd v Gilbert [1978] ICR 1149
CFMEU v Oakbridge Pty Ltd, unreported; FedCt of NSW; 556 of 1998; 27 July 1998
Chapman v Christopher Ltd [1981] IRLR 440
Dalgety Australia Ltd v Rubin, unreported; SCt of WA; Library No 5485; 24 August 1984
Easling v Mahoney Insurance Brokers Ltd (2001) 78 SASR 489
Fryar v Service Systems Pty Ltd (1996) 137 ALR 321
Hospitals Contribution Fund of Australia v Hunt (1984) 44 ALR 365
Kimberley Downs Pty Ltd v Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986
Morton Sundour Fabrice Ltd v Shaw [1967] 2 ITR 84
Thomson v Orica Aust Pty…

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.

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Details

Case: [2005] WASC 194
Decision Date

CaseChat Overview and Summary

The case of Rogan-Gardiner v Woolworths Ltd involves an application to strike out a specific paragraph of the defence and an application for leave to amend the defence. The plaintiff, Michelle Rogan-Gardiner, who was formerly employed by Woolworths Ltd, alleges that her employment was terminated without proper notice and seeks damages for breach of contract. The dispute specifically concerns paragraph 11 of the defence, which attempts to justify the termination of the plaintiff's employment by asserting that she was given notice on or about 27 September 2002, with her employment terminating on 11 September 2003. The court noted that the pleading in its present form was confusing and did not have a sound jurisprudential base. The court also found that the plaintiff's employment contract and her employment relationship would both have ended on 30 September 2002 if notice had been properly given on 15 April 2002.

The court decided that the defendant should not be granted leave to amend in terms of the current paragraph 11, but should be allowed a further opportunity to replead the matters raised in that paragraph. The court emphasized the importance of proper pleading to avoid unnecessary interlocutory diversions and to ensure that each party clearly understands the issues at stake. The court concluded that while defective pleas should generally be struck out, in this case, the summons to strike out should not have been brought, as the deficiencies in the pleading could have been addressed through correspondence and mediation without causing significant delay or expense.

Orders