Russell v RCR Tomlinson Ltd [No 2]

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RUSSELL -v- RCR TOMLINSON LTD [No 2] [2016] WASC 240



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2016] WASC 240
Case No:CIV:1229/201015-17 DECEMBER 2015 & 4 APRIL 2016
Coram:TOTTLE J9/08/16
52Judgment Part:1 of 1
Result: Order for rectification made
B
PDF Version
Parties:DAVID WILLIAM RUSSELL
RCR TOMLINSON LTD

Catchwords:

Practice and procedure
Construction of court orders
Where plaintiff had three causes of action
Where at original trial one cause of action succeeded and other two were dismissed
Where defendant appealed to Court of Appeal
Where no cross appeal regarding the two causes of action dismissed by the trial judge
Where appeal allowed and matter remitted for retrial
Whether all three causes of action remitted for retrial or only the cause of action at issue in the appellate proceedings
Whether ambiguity required before regard may be had to reasons of court when construing orders
Whether res judicata, issue estoppel or Anshun estoppel arose
Equity
Rectification
Whether employment agreement should be rectified to reflect common intention of parties
Whether parties had common intention that retirement benefit should be payable on termination of employment by employer within five years of commencement
Turns on own facts
Contract
Breach of contract
Employment contract
Construction of term providing for retirement benefit
Whether proper construction required five years' service before benefit payable
Turns on own facts
Misleading and deceptive conduct
Trade Practices Act 1974 (Cth) s52
Whether representation in fact made
Whether representations made in the course of negotiations for an employment contract are made 'in trade or commerce'
Meaning of 'in trade or commerce'

Legislation:

Trade Practices Act 1974 (Cth) s 51A, s 52 and s 82

Case References:

Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58
Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 Qd R 230
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594
Dalecoast Pty Ltd v Guardian International Pty Ltd [2003] WASCA 142
Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1
Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) (1988) 39 FCR 546
Juengling v Wells [2009] WASCA 125
MacDonald v Shinko Australia Pty Ltd [1999] 2 Qd R 152
McKay v Commissioner of Main Roads [2013] WASCA 135
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 89 ALJR 990
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457
Polyaire Pty Ltd v K-Aire Pty Ltd (No 4) [2007] SASC 36
Rakic v Johns Lyng Insurance Building Solutions (Victoria) Pty Ltd (Trustee) [2016] FCA 430
RCR Tomlinson Ltd v Russell [2015] WASCA 154
Repatriation Commission v Nation (1995) 57 FCR 25
Russell v RCR Tomlinson Ltd [2012] WASC 405
Sertari Pty Ltd v Quakers Hill SPV Pty Ltd [2014] NSWCA 340
Smith v Comcare [2014] FCA 811
Walker v Salomon Smith Barney Securities Pty Ltd [2003] FCA…
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Details
Case
[2016] WASC 240
Decision Date

CaseChat Overview and Summary

The matter of Russell v RCR Tomlinson Ltd [No 2] involved a dispute between the plaintiff and the defendant, focusing on various causes of action arising from an employment agreement. The case was originally heard in a lower court where one cause of action succeeded while the other two were dismissed. The defendant subsequently appealed to the Court of Appeal, which allowed the appeal and remitted the matter for a retrial. The Court of Appeal did not consider the two causes of action dismissed by the trial judge as they were not subject to any cross-appeal.

The primary legal issues before the court were whether all three causes of action should be remitted for retrial or only the one that was the subject of the appellate proceedings. Additionally, the court had to determine whether there was any ambiguity in the court orders that would allow for consideration of the reasons behind the trial judge's decisions. The court also needed to assess whether principles of res judicata, issue estoppel, or Anshun estoppel applied in this context. Furthermore, the court considered whether the employment agreement should be rectified to reflect the common intention of the parties, specifically whether retirement benefits should be payable upon termination of employment within five years of commencement. The court had to interpret the term in the employment contract providing for retirement benefits and decide whether it required five years of service before the benefit could be paid. Finally, the court examined whether representations made during negotiations for the employment contract constituted misleading or deceptive conduct under the Trade Practices Act 1974 (Cth).

The court concluded that only the cause of action that was the subject of the appellate proceedings should be remitted for retrial, as there was no ambiguity in the court orders that would allow for consideration of the reasons behind the trial judge's decisions. The principles of res judicata, issue estoppel, and Anshun estoppel did not apply in this instance. The court found that the employment agreement should be rectified to reflect the common intention of the parties, which was that retirement benefits should be payable upon termination of employment within five years of commencement. The term in the employment contract was properly construed to require five years of service before the benefit could be paid. The court determined that the representations made during negotiations for the employment contract did not constitute misleading or deceptive conduct under the Trade Practices Act 1974 (Cth) as they were not made in the course of trade or commerce. As a result, the court made an order for rectification.

Orders

Orders of the court

Order for rectification made

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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