RUSSELL -v- RCR TOMLINSON LTD [No 2] [2016] WASC 240
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 240 | |
| Case No: | CIV:1229/2010 | 15-17 DECEMBER 2015 & 4 APRIL 2016 | |
| Coram: | TOTTLE J | 9/08/16 | |
| 52 | Judgment 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… |
Keep reading for free
Create a free CaseChat account to read Russell v RCR Tomlinson Ltd [No 2] and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
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.
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
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.