Gough & Gilmour Holdings Pty Ltd and ors v Caterpillar of Australia Ltd

Gough & Gilmour Holdings Pty Ltd and ors v Caterpillar of Australia Ltd - [2003] NSWIRComm 26 - NSWIRComm 2003 case summary — Zoe

[8]

FOURTH RESPONDENT Caterpillar Overseas Credit Corporation SA FILE NUMBER: IRC 5227 of 2000 CORAM: Boland J Unfair contract - Primary relief under s 106 of Industrial Relations Act refused - Question of whether injunctions should be dissolved in light of Court's refusal to grant primary relief - Question of whether alternative relief available to applicants - Estoppel - Whether requirement to amend pleadings in order to pursue alternative relief - Function of pleadings - Leave granted to applicants to apply to amend pleadings - Parties directed to confer on how injunctive orders might be revised CATCHWORDS : Practice and Procedure - Primary relief under s 106 of Industrial Relations Act refused - Question of whether injunctions should be dissolved in light of Court's refusal to grant primary relief - Question of whether alternative relief available to applicants - Estoppel - Whether requirement to amend pleadings in order to pursue alternative relief - Function of pleadings - Leave granted to applicants to apply to amend pleadings - Parties directed to confer on how injunctive orders might be revised LEGISLATION CITED : Industrial Relations Commission Rules 1996 Banque Commerciale SA In Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 Bourke Air Charter v Easton (2001) 109 IR 443 Crawford Fitting Co v Sydney Valve and Fitting Pty Ltd (1988) 14 NSWLR 438 Gough & Gilmour Holdings Pty Limited & Ors v Caterpillar of Australia Limited & Anor (No. 11) [2002] NSWIRComm 354 Gough & Gilmour Holdings Pty Limited & Ors v Caterpillar of Australia Limited & Anor (No. 12) [2003] NSWIRComm 3 Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In Liquidation) (1916) 22 CLR 490 CASES CITED : Klein, PMG & Ors v Adler [1996] NSWIRC 184 Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437 Mummery v Irvings Pty Ltd (1956) 96 CLR 99 Munro v Chubb Security Holdings Australia Ltd & Ors [2000] NSWIRC 215 Pilgrim v Wendy's Supa Sundaes and Ors [2002] NSWIRC 308 Robert Rolles and Others v Donald Scott Surgicals Pty Ltd and Anor (Unreported, Industrial Commission in Court Session, 19 February 1988) Vision Publishing Pty Limited v PK Lane Holdings Pty Ltd (1998) 84 IR 277 HEARING DATES: 01/21/2003; 01/24/2003; 02/03/2003; 02/04/2003 DATE OF JUDGMENT: 02/13/2003

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· The Court refused to grant any of the primary relief and made an order to that effect. Accordingly, none of the "smorgasbord" of variations sought by the applicants were made. · The applicants now wish to revisit the refusal to grant the primary relief and to have a 'second bite' by attempting to seek wide ranging post judgment orders extensively varying the dealership agreements. · It has been difficult to ascertain precisely the final and precise terms of Post-Judgment Relief now sought by the applicants, or the manner in which it is said that an entitlement to seek such relief as of right is possessed by the applicants. · The applicants appear to rely upon their claim for what might be correctly described as not alternative relief but rather "Post-Judgment Relief" to resist the Court properly and fairly revising the terms of the interlocutory injunction granted so long ago. · The applicants are precluded or prevented from seeking all or any of the Post-Judgment Relief by reason of the terms of the judgment, res judicata, issue estoppel, Anshun estoppel and/or abuse of process, (collectively, "the Estoppel by Record Principles"). · An examination of the substance of what is now sought reveals that what the applicants seek to do is re-litigate that cause of action and/or issues and matters that have already been decided against them. In so doing, the applicants encounter insurmountable difficulties with the Estoppel by Record Principles. · The situation that the Court and the respondents are placed in by reason of what the applicants now purport to seek flies in the face of, and seeks to undermine, the sound principles and policy underlying the Estoppel by Record Principles. Indeed, a careful consideration of the judgment (including the findings referred to above), the primary relief sought, and the Post-Judgment Relief, reveals that: (a) the findings of His Honour are necessarily called into question or ignored; (b) seeking the Post-Judgment Relief necessarily involves not accepting the judgment as incontrovertibly correct so as to admit no averment, plea or proof to the contrary otherwise than on appeal; (c) in order to grant any such Post Judgment Relief would necessarily (whether implicitly or otherwise) involve findings inconsistent with the judgment - or involve pretending that such findings had not been made. This is because such Post-Judgment Relief could not conceivably be granted in light of such findings; (d) seeking the relief necessarily gives rise to the potential for the "scandal of conflicting decisions" in the event that the Court is asked to make any such determination. It is to be noted in this regard that it is not to the point that the Court might ultimately reject the claim for such Post-Judgment Relief because of findings earlier made. The Estoppel by Record Principles have as part of their fundamental premise the desirability of ensuring that a Court is not put in the position where the question arises as to whether any finding would or would not be inconsistent with the earlier decision. It is the potential for (expressly or implicitly) conflicting decisions against which these principles stand guard. · When proper regard is had to the terms of the relief sought in Schedule "A" to the Third Further Amended Summons (the primary relief) and similar attention is paid to the substance of the Post Judgment Relief now sought, it can be seen that, in substance and character, they are the same.

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34 It would, of course, as the respondents properly acknowledge, be open to the Court to now invite the applicants to amend the pleadings or for the Court to do so on its own motion. Despite the fact that it may have the effect of delaying final closure of these proceedings, a matter that I have previously expressed concern about, I consider the appropriate course is to provide the applicants with the opportunity to amend in light of the judgment of 19 December 2002. In taking this view I have had regard to the requirements of s 170(1) of the Act and r 148. I have also had regard to what was said by the High Court in Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437 where the majority (Stephen, Mason and Jacobs JJ) said at 446: If in the cause of action upon which the plaintiff sued there had emerged at the conclusion of the evidence facts which, if accepted, established that cause of action, then it was the duty of the trial judge to leave the issue of negligence to the jury. The pleadings should have been amended in order to make the facts alleged and the particulars of negligence precisely confirm to the evidence which had emerged. Part 20, r (2) of the New South Wales Supreme Court Rules provides that all necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings. Now, and for many years past, a plaintiff does not fail by being refused leave to amend or through failure formally to apply for amendment, where the evidence has disclosed a case in the cause of action fit to be determined by the tribunal of fact. Particularly is this so when the action finally determines the rights of the parties in the cause of action. In a case where the question arose whether an amendment ought to have been requested and allowed in order to raise breach of a different duty of case the court in Mummery v Irvings Pty Ltd (1956) 96 CLR 99 at 112; [1956] ALR 795 at 802, said: "There is, of course, no doubt that the question of extending the issues at the trial was peculiarly within the discretion of the trial judge. But, on the assumption that there was some evidence upon which the jury could have reached a conclusion on this additional issue, there was every reason why it should have been submitted to the jury. If, as the members of the Full Court appear to have thought, the present judgment precludes the appellant from bringing any further action that was an additional reason why that course should have been adopted. We find it unnecessary to express any view upon that question but our doubts on this point do not lessen our belief that, if there was evidence upon this additional issue, a refusal to extend the issues was not, in the circumstances, justifiable." 35 Before making any decision about whether to seek leave to amend, the applicants need to take into account the following two observations: Firstly, although I consider that significant elements of the alternative relief claimed by the applicants goes beyond anything that could have been reasonably anticipated from the third further amended summons, the applicants have made it clear from the outset, and the respondents have been on notice, that if the Court found unfairness but was not prepared to grant the primary relief sought by the applicants, an alternative claim for extended notice was a fallback position for the applicants. Moreover, the Court has made it clear that the alternative of extended notice was in contemplation. The respondents could not have been under any misapprehension about this and I do not consider that it is really necessary for the applicant to seek to amend for the purpose of claiming a period of extended notice. By this I mean that it is open to the applicants, by way of alternative relief, to pursue a claim that, in the circumstances, and given the findings of unfairness, 90 days' notice of termination is inadequate and the applicant should be given the opportunity by way of an extension of the 90 days' notice period, of extracting themselves from the dealership in a fair and dignified manner. The question of compensation and any variations to the contracts or arrangements that might underpin money orders would be a separate consideration subject to any other variations to the contracts or arrangements that might be made arising out of the findings of unfairness, findings that I regard as significant. I note that the applicants have, in effect, particularised their claim for actual extended notice by claiming 15 months.

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