William Hayes-Williams v Turnbull Corporation Pty Ltd

[1990] FCA 497

Re: WILLIAM HAYES-WILLIAMS
And: TURNBULL CORPORATION PTY LIMITED; ROSS TURNBULL; TURNBULL CORPORATION PTY
LIMITED AND WILLIAM HAYES-WILLIAMS
No. G138 of 1990
FED No. 497
Practice

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.(1)

CATCHWORDS

Practice - Application under s.25(6) of the Federal Court of Australia Act 1976 to reserve a question for a Full Court - facts in dispute - discretion.

HEARING

SYDNEY

#DATE 13:9:1990

Counsel and solicitors Mr. B. McClintock, instructed
for the applicant: by Cutler Hughes and Harris

Counsel and solicitors Mr. C.T. Barry instructed by
for the respondents: Freehill, Hollingdale and Page

ORDER

The respondents' application that there be reserved for a Full Court the question, whether the matter pleaded in para.11 of the amended defence is a good plea, be refused.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

These are reasons for refusing an application that a question be reserved for a Full Court. The background to the application is as follows.

The background

1. By his statement of claim, the applicant has alleged that the respondents engaged in conduct contrary to the provisions of ss.52 and 53B of the Trade Practices Act 1974. The applicant further alleges that the first respondent breached its contract of service with him. The applicant claims damages. By their amended defence, the respondents have denied or otherwise put in issue the substantial allegations made in the statement of claim. Inter alia, (and the significance of this will appear later), they have also pleaded (para.11) that they do not admit that certain of the conduct alleged against them (which is denied) was conduct in the course of trade or commerce.

2. During the course of several directions hearings, it appeared that important aspects of the litigation were the discussions negotiating entry by the parties into the contract of service. It further appeared that it would be of advantage to first determine any factual disputes concerning these discussions. On 20 June 1990, a direction was given that on 5, 6 and 7 September 1990, evidence would be taken and submissions made with respect to these facts.

3. When the matter was called on for hearing on 5 September, an application was made on behalf of the respondents that there be reserved for a Full Court the question whether the matter pleaded in para.11 of the amended defence was a good plea, and that, pending the Full Court's decision, the present proceedings be adjourned to a later, indefinite date. Having heard submissions on the application, I indicated that it was refused but that I would give reasons later.
   The reasons for refusing to reserve a question for a Full Court

4. On behalf of the respondents, it was submitted that, in the light of the recent decision of the High Court in Concrete Constructions (N.S.W.) Pty. Ltd. v. Nelson (1990) 92 ALR 193, the relevant conduct of the respondents alleged by the applicant was not conduct "in trade or commerce" and thus fell outside s.52 of the Trade Practices Act. It was said, on behalf of the respondents, that because of the importance and complexity of the point, a question should be reserved for a Full Court pursuant to s.25(6) of the Federal Court of Australia Act 1976.

5. It is clear that the discretion under s.25(6) to reserve, or not reserve, a question is a wide one (see Barton v. Westpac Banking Corporation (1983) 50 ALR 397 at p 415). In my view, it was not appropriate to exercise the discretion by reserving a question for a Full Court for the following reasons.

6. Para.11 of the amended defence is in these terms:
   

"11. The respondents do not admit that if it is found that they made the representations alleged in

paragraphs 5 to 9 of the statement of claim then those representations were made in the course of trade or commerce."

1. In paras. 5, 6, 7 and 9 of the statement of claim, it is alleged that a consultant retained by the first respondent to recruit a person to be appointed as its "Manager, Finance and Administration" made certain representations on behalf of the first respondent to the applicant in that connection. In two instances, the representations were said to have been made at meetings (paras. 5 and 6). In two other instances, the representations were said to be in writing (paras. 7 and 9). In para.8 of the statement of claim, it is alleged that, at a meeting, the applicant and the second respondent agreed on one of the terms of a contract of employment.

2. In their amended defence, the respondents do not admit para.5 of the statement of claim; para.6 is denied; the writings alleged in paras.7 and 9 are admitted but not their effect as alleged in the statement of claim; and para.8 is denied.

3. It is, of course, possible for assumed facts to be stated for a Full Court. But, in my opinion, caution should be exercised lest costs be thrown away in adopting a course which can turn out to be of little, or no utility. In the present case, in my view, the preferable course was to continue in the manner originally proposed; that is, to find the facts first and then consider any legal questions which might arise in the light of those facts. It appeared that the scope of the dispute about the facts, especially what happened at the meetings relied on by the applicant, was not substantial. That being so, the considerations of the additional costs and delay involved in arranging a Full Court hearing suggested that the balance of convenience lay in favour of making the findings of fact as a first step. This should assist in identifying the ultimate questions of law which will arise for resolution in the litigation more readily than in the case of merely assumed facts stated in general terms. In this way, it is more likely than not that at least some costs and time will be saved.

4. For these reasons, the application was refused.