Mico v Canberra Tourism and Events Corporation and Stainlay [2001] ACTSC 94 (28 September 2001)

Last Updated: 11 June 2002

Domenic Mico v Canberra Tourism and Events Corporation and Peter Stainlay [2001] ACTSC 94 (28 September 2001)

CATCHWORDS

PRACTICE AND PROCEDURE - Application for strike out of amended statement of claim - Employment dispute - Expiration of written employment contract - Breach of oral contract for future employment.

Administrative Decisions(Judicial Review) Act 1989

Law Reform (Misrepresentation) Act 1977

Public Sector Management Act 1994

Australian National University v Burns [1982] FCA 191; (1982) 43 ALR 25

Cubillo v Commonwealth (199) [1999] FCA 518; 163 ALR 395

Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62

Kelly v Coats (1981) 35 ALR 93

Lonrho Pty Limited v Fayed (No. 2) [1991] 4 All ER 961

Republic of Peru v Peruvian Guano (1887) 36 ChD 489

Woolworths (SA) Pty Ltd v Russian (1996) 66 IR 169

No. SC 207 of 2001

Coram: Master T Connolly

Supreme Court of the ACT

Date: 28 September 2001

IN THE SUPREME COURT OF THE )

) No. SC 207 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: DOMENIC MICO

Plaintiff

AND: CANBERRA TOURISM AND EVENTS CORPORATION

1^st Defendant

AND: PETER STAINLAY

2^nd Defendant

ORDER

Coram: Master T. Connolly

Date: 28 September 2001

Place: Canberra

THE COURT ORDERS THAT:

1. 1. The notice of motion dated 7 September 2001 be dismissed.

2. 2. The plaintiff has liberty to make any further amendments to the amended statement of claim within 14 days.

3. 3. The defendant pay the costs of and incidental to the notice of motion.

4. This is an application by way of notice of motion to strike out the whole of, or alternatively parts of, the amended statement of claim of 16 August 2001 amending the original statement of claim of 5 April 2001. The substantive proceedings arise from an employment dispute. It is common ground that the plaintiff entered into an employment contract with the defendant on 3 July 2000, the terms of which were that he was to be employed as the Artistic Director of the Canberra Multicultural Festival. The contract on its face was for temporary employment, and in accepting the contract the plaintiff signed a statement, which was exhibit 1 in these proceedings, that the temporary employment would end on 30 June 2001.

5. It is the plaintiff's case, however, that there were oral representations that, while the temporary contract would expire on that date, he would be offered additional contracts for a further two years. He asserts that he entered the contract, rather than seeking alternative employment, on the basis of these representations. This is disputed by the defendant. It is common ground that in March 2001 differences arose between the plaintiff and the defendants, and on 19 March 2001 the second defendant wrote to the plaintiff advising that his employment would come to an end on 30 June 2001 in accordance with the contract, and that he should not again come in to his place of employment, but that his entitlements would be paid to the end of 30 June. Helpful written submissions were prepared in this case by both Mr Stevenson and Mr Erskine.

6. The defendant's principle argument is that the action is unsustainable in that the plaintiff pleads that his employment was terminated in March 2001, whereas on the defendant's case the plaintiff, as he continued to receive entitlements up until 30 June 2001, enjoyed the full benefits of the contract. The defendant says that, as the contract made it clear that the plaintiff's employment under that contract would end on 30 June 2001, the pleadings are unsustainable and disclose no cause of action in so far as they plead a breach beyond 30 June 2001.

7. In response the plaintiff says that, while the written contract was on its face for the period only until 30 June 2001, there was an oral agreement that there would be a further contract or contracts offered, and that this was breached. It seems to me that this is at the very least a sustainable argument. On a strike out application the court must be cautious not to disentitle a party from obtaining a hearing on the merits of their claim. As Dixon J stated in Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91:

"Once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process."

8. The principles governing such applications have recently been restated by O'Loughlin J in Cubillo v Commonwealth (199) [1999] FCA 518; 163 ALR 395 at 415-416. It should be remembered that such an application proceeds on the basis that the facts asserted by the plaintiff to make out his case are true, and the pleading should be struck out only if, even if the plaintiff establishes the facts asserted, the case would still fail (Lonrho Pty Limited v Fayed (No. 2) [1991] 4 All ER 961 at 965. The asserted facts must be established at the eventual trial, and a ruling on a strike out application does not involve any assessment of those facts.

9. Accordingly I am not satisfied that the application to strike out the whole of the proceedings pursuant to Order 29 rule 3 is made out. In the alternative the defendants argue that the second defendant should be struck out. It is argued that, as the employment contract was between the plaintiff and the first defendant, no sustainable cause of action involving the second defendant arises.

10. The plaintiff responds that the amended statement of claim brings together an action for breach of contract, an action for misrepresentation pursuant to the Law Reform (Misrepresentation ) Act 1977, and an action for orders under the Administrative Decisions(Judicial Review) Act 1989. The second defendant argued that the decision to require the plaintiff not to come in to work and not to offer a new contract is a contractual decision, rather than a decision under an enactment as required by s3(1) of the Administrative Decisions (Judicial Review) Act 1989 (Australian National University v Burns [1982] FCA 191; (1982) 43 ALR 25). The plaintiff argued that the decision was made pursuant to s112 of the Public Sector Management Act 1994, and so is amenable to judicial review. This certainly seems to me to be an arguable case. The administrative law action, in my view, should go to trial.

11. The plaintiff argues that, in respect of the administrative law action, it is appropriate, and indeed necessary (see Kelly v Coats (1981) 35 ALR 93 at 95) to bring an action against the person who made the administrative decision under challenge, which is asserted to be the second defendant. It seems to me that this is appropriate, and that the action against the second defendant should not be struck out pursuant to Order 29 rule 3.

12. In the alternative to striking out the whole of the statement of claim, in its entirety or against the second defendant, the defendants attack a number of specific points which they say are defective and give rise to no arguable case.

13. It is argued that paragraph 9 (b) of the amended statement of claim, which alleges that the terms of the contract were both oral and written is unsustainable. I am not satisfied that there is no arguable case that there could be oral terms to the contract