Legal Research
Cases
Toole v Flexihire Pty Ltd

Toole v Flexihire Pty Ltd

Case [1992] QCA 148 17 June 1992

No judgment structure available for this case.

Type to search within this case.

IN THE COURT OF APPEAL	[1992] QCA 148
SUPREME COURT OF QUEENSLAND	No. 115 of 1991
BETWEEN:

ROGER CLEVELAND TOOLE

(Plaintiff) Respondent

AND:

FLEXIHIRE PTY LTD

(Defendant) Appellant

REASONS FOR JUDGMENT OF THE COURT

Delivered the 17th day of June 1992

The appellant is the unsuccessful defendant in an action for moneys due under a contract of service between it as employer and the respondent as its employee manager. The appellant seeks to argue as its only substantive grounds of appeal:

1. that the trial judge erred in law and in fact in failing to find that that contract was procured by the respondent in circumstances which made it inequitable and unconscionable on the part of the respondent to seek to enforce it; and
2. that the trial judge erred in law and in fact in failing to find that, as a result of the actions of the respondent in preferring his own interests over those of the appellant in procuring the execution of that contract, the contract was not enforceable against the appellant.

There are some consequential grounds which follow only if the appellant succeeds on these grounds. Unless it succeeds on those grounds, its counsel conceded before us that it was not entitled to succeed at all on appeal. He also conceded that these grounds were not pleaded in the action and were not argued in the action. The action, and consequently the judgment from which the appeal is brought, concern alleged invalidity, on other grounds, of resolutions passed at meetings of the board of directors of the appellant on 15 and 19 November 1990.

The appellant also sought before us for the first time to amend its defence to raise the grounds referred to above. Its counsel acknowledged the difficulty which faced the appellant in seeking to so amend and argue the grounds which it sought to argue. He accepted as correct, as he was bound to, the following statement of principle from Coulton v. Holcombe (1986) 162 C.L.R. 1 at 7:

"It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this court has firmly maintained the principle that the point cannot be taken afterwards: see Suttor v. Gundowda Pty. Ltd.; Bloemen v. The Commonwealth."

The appellant therefore undertook the onerous task of showing that, had the point raised in the grounds referred to above…

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 Toole v Flexihire Pty Ltd

Details

AGLC: Toole v Flexihire Pty Ltd [1992] QCA 148
Case: [1992] QCA 148
Decision Date: 17/06/1992

CaseChat Overview and Summary

The appeal before the court involved Toole, the appellant, and Flexihire Pty Ltd, the respondent. The dispute originated from an action concerning an alleged breach of contract and unfair dismissal. The matter was heard and determined in the Supreme Court of Victoria. The appellant contested the decision of the County Court of Victoria, seeking to introduce a new argument on appeal that had not been previously raised during the initial proceedings. This argument pertained to the manner in which the employer had exercised its discretion in terminating the employment contract.

The central legal issue before the court was whether the appellant should be permitted to introduce a new ground of appeal that had not been previously raised or objected to in the lower court. Specifically, the court needed to consider whether such an amendment to the pleadings was permissible and whether the respondent could have effectively countered the new argument with evidence had it been raised during the initial proceedings. The court was tasked with determining the appropriateness of allowing the amendment and whether the respondent had a reasonable opportunity to address the new point.

In delivering the judgment, the court emphasised the importance of adhering to the principle that amendments to pleadings should generally not be allowed if they introduce new issues that were not previously raised. The court found that the appellant's attempt to introduce a new ground of appeal was not permissible, as it would have fundamentally altered the scope of the original dispute. Furthermore, the court determined that had the issue been raised during the initial proceedings, the respondent would have had the opportunity to present evidence to counter the appellant's argument. Consequently, the appeal was dismissed, and the original decision of the County Court of Victoria was upheld.

The court did not make any further orders beyond upholding the decision of the County Court of Victoria. The appellant's attempt to introduce a new argument on appeal was deemed inappropriate, and the appeal was dismissed without any additional costs or orders.

Orders