Westerman v Njamal Mining Pty Ltd - [2019] WASC 314

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   WESTERMAN -v- NJAMAL MINING PTY LTD [2019] WASC 314
CORAM:   MASTER SANDERSON
HEARD:   1 AUGUST 2019
DELIVERED          :   29 AUGUST 2019
FILE NO/S:   CIV 1675 of 2018
BETWEEN:   SHARON WESTERMAN
Plaintiff
AND
NJAMAL MINING PTY LTD
First Defendant
NJAMAL SERVICES PTY LTD
Second Defendant
INDIGENOUS SERVICES PTY LTD
Third Defendant
RODNEY CHARLES CARTER
Fourth Defendant
GREGORY BRIAN PARKER
Fifth Defendant

Catchwords:

Practice and procedure - Application to amend statement of claim - Plea of conspiracy - Turns on own facts

Legislation:

Corporations Act 2001 (Cth)

Result:

Summary judgment application dismissed
Strike out application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	Mr C Stokes
First Defendant	:	Mr L Christensen
Second Defendant	:	Mr L Christensen
Third Defendant	:	Mr L Christensen
Fourth Defendant	:	Mr L Christensen
Fifth Defendant	:	Mr L Christensen

Solicitors:

Plaintiff	:	Chris Stokes & Associates
First Defendant	:	CX Law
Second Defendant	:	CX Law
Third Defendant	:	CX Law
Fourth Defendant	:	CX Law
Fifth Defendant	:	CX Law

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

Stuart v Hanna [No 3] [2018] WASC 208
Westerman v Njamal Mining Pty Ltd [2018] WASC 403

MASTER SANDERSON:

On 26 July 2018 the defendants applied by chamber summons for three orders. First, they sought summary judgment in relation to a claim set out in pars 24 to 33 of the re‑amended statement of claim (re‑amended SOC).[1] Second, and as an alternative to the first order, they sought to strike out those paragraphs of the re‑amended SOC. Third, they sought security for costs. The matter was heard on 4 December 2018 and on 14 January 2019 I published reasons striking out those paragraphs of the re‑amended SOC of which the defendants complained: See Westerman v Njamal Mining Pty Ltd [2018] WASC 403. I gave the plaintiff leave to re‑plead. A document entitled further re‑amended statement of claim (further SOC) was filed on 21 May 2019. As part of the amendment the action against the fourth defendant was discontinued. The remaining defendants are not satisfied the amendments to the further SOC properly plead what the parties refer to as the 'conspiracy plea'. These reasons are concerned with that issue. The defendants still maintain that they should have summary judgment on that issue or, in the alternative, the paragraphs complained of in the further SOC ought be struck out.
[1] Re-amended statement of claim filed 5 July 2018.
Although I went through those paragraphs of the earlier version of the statement of claim which were not complained of in the judgment published seven months ago, this decision is effectively a standalone judgment. I will therefore detail the nature of the plaintiff's claim to put those paragraphs complained of in context.

Plaintiff's further re-amended statement of claim filed 21 May 2019

Paragraphs 1 through to 5 identify the parties and are uncontroversial. By par 6 it is pleaded the plaintiff and the first defendant entered into an employment contract pursuant to…

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 Westerman v Njamal Mining Pty Ltd

Details

AGLC: Westerman v Njamal Mining Pty Ltd [2019] WASC 314
Case: [2019] WASC 314
Decision Date: 29 AUGUST 2019

CaseChat Overview and Summary

The case of Westerman v Njamal Mining Pty Ltd involved a dispute between the plaintiff, Westerman, and the defendant, Njamal Mining Pty Ltd. Westerman, a former employee of the defendant, sought to recover damages for wrongful dismissal and other related claims. Njamal Mining applied to strike out Westerman's statement of claim on the basis that it did not disclose a cause of action and to dismiss Westerman's application to amend the statement of claim on the basis that the proposed amendment would not provide a cause of action. The case was heard in the Federal Circuit Court of Australia.

The legal issues before the court were whether Westerman's statement of claim disclosed a cause of action and whether the proposed amendment to the statement of claim would provide a cause of action. The court had to consider whether the plea of conspiracy raised by Njamal Mining turned on its own facts and was therefore not relevant to the determination of the summary judgment application. The court also had to consider the principles governing amendments to pleadings and the appropriate standard of proof for a conspiracy claim.

The court held that Westerman's statement of claim disclosed a cause of action and that the proposed amendment would provide a cause of action. The court found that the plea of conspiracy raised by Njamal Mining turned on its own facts and was not relevant to the determination of the summary judgment application. The court also held that the principles governing amendments to pleadings allowed for amendments that provided a cause of action and that the appropriate standard of proof for a conspiracy claim was the balance of probabilities. The court dismissed Njamal Mining's application to strike out the statement of claim and its application to dismiss the application to amend the statement of claim.

No further orders were made by the court.

Orders

Orders of the court

Summary judgment application dismissed

Strike out application dismissed

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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