Gough & Gilmour Holdings Pty Ltd and ors v Caterpillar of Australia Ltd (No.13) [2003] NSWIRComm 26 (13 February 2003)

Last Updated: 7 March 2003

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Gough & Gilmour Holdings Pty Ltd and ors v Caterpillar of Australia Ltd (No.13) [2003] NSWIRComm 26

FILE NUMBER(S): IRC 5227

HEARING DATE(S): 21/01/2003, 24/01/2003, 03/02/2003, 04/02/2003

DECISION DATE: 13/02/2003

PARTIES:

FIRST APPLICANT

Gough & Gilmour Holdings Pty Ltd

SECOND APPLICANT

Harcourt David Gough

THIRD APPLICANT

Anthony Lansley Gilmour

FIRST RESPONDENT

Caterpillar of Australia Limited

SECOND RESPONDENT

Caterpillar Inc.

THIRD RESPONDENT

Caterpillar SARL

FOURTH RESPONDENT

Caterpillar Overseas Credit Corporation SA

JUDGMENT OF: Boland J

LEGAL REPRESENTATIVES

APPLICANTS

Mr M J Kimber SC with Mr A B Gotting of counsel

Solicitor:

Ms E Pritchard

Harmers Workplace Lawyers

RESPONDENTS

Mr P M Hall QC with Mr M Connock of counsel

Solicitor:

Mr T Gooch

Mallesons Stephen Jaques

CASES CITED: 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

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

LEGISLATION CITED: Industrial Relations Commission Rules 1996

JUDGMENT:

- 19 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: Boland J

Date: 13 February, 2003

Matter No IRC 5227 of 2000

GOUGH & GILMOUR HOLDINGS PTY LIMITED & ORS V CATERPILLAR AUSTRALIA LIMITED & ANOR

Application under s 106 of the Industrial Relations Act 1996

Interlocutory Judgment No. 13

1 In Gough & Gilmour Holdings Pty Limited & Ors v Caterpillar of Australia Limited & Anor (No. 12) [2003] NSWIRComm 3 the Court considered what was to be done in relation to the injunctive orders made on 24 October 2001 in light of the fact that the primary relief sought by the applicants had been refused by the Court in a judgment handed down on 19 December 2002: see Gough & Gilmour Holdings Pty Limited & Ors v Caterpillar of Australia Limited & Anor (No. 11) [2002] NSWIRComm 354.

2 The Court directed the parties to hold discussions with a view to reaching agreement on revising the terms of the injunction so that the respondents were not unreasonably restrained. The parties were unable to agree on any revision of the terms of the injunctive orders and the respondents continued to press strongly for their dissolution.

3 In proceedings on Tuesday 21 January 2003 the Court indicated that it was not prepared to dissolve the injunctive orders but would give further consideration as to how they should be revised. Consequently, the applicants were requested to indicate the form of the alternative relief they seek and this was provided on Friday 24 January 2003.

4 The alternative relief being sought by the applicants may be summarised as follows:

(a) Variations to the contracts and/or arrangements that impose obligations on the respondents to assist the applicants in the negotiations to sell the dealership to the Stokes' organisation in the event the applicants agree to do so, including involvement in a conciliation and/or mediation process if negotiations break down.

(b) In the event that the Court is not prepared to vary the contracts and/or arrangements to introduce a sale negotiation process the notice provisions of the dealership agreements should be varied to substitute the 90 days' notice provision with a 60 months' notice of termination period with a requirement that the first fifteen months of that notice period be actual notice with the respondents thereafter having the option of permitting the applicants to work out the balance of the proposed notice period or agreeing to pay the applicants (by pre agreed formula) an appropriate "payment in lieu thereof".

(c) In addition to (b) the contracts and/or arrangements be varied to provide for "notional variations" (i.e., that would sound only in compensation). These notional variations would be based on the findings of unfairness in the judgment of 19 December 2002.

(d) In the event the Court was not prepared to make actual variations as per (a) and (b) above the variations should be notional and sound in compensation.

5 The respondents contended that the only alternative relief available to the applicants was compensation and that in granting alternative relief the Court was precluded from making any other orders other than money orders.

6 In directions to the parties on 28 January 2003 the Court said:

The form of any alternative relief that might be available to the applicants obviously bears on the injunctive orders that are currently in place. If compensation is the only available alternative remedy there could be no objection to dissolving the injunctions immediately. On the other hand, if relief is available in the form of an extended period of notice or variations that put in place a sale negotiation process as sought by the applicants then, prima facie, the injunction should stay in place albeit, perhaps, in a revised form.

In order to determine the fate of the injunctive orders it becomes necessary for the Court to consider, firstly, whether there is any relief available to the applicants other than compensation for unfairness. To that end the Court makes the following directions:

(1) The applicants shall review and revise the document entitled "Alternative Relief To Be Sought By The Applicants" and tendered in proceedings on 24 January 2003 so that it represents the applicants' final position.

(2) Together with the revised document referred to in (1) above, the applicants shall file and serve a written outline of submissions as to the basis upon which they claim to be able to pursue the alternative relief they seek and the basis on which they contend the Court may hear and determine such claims by 10.00 am Thursday 30 January 2003.

(3) The respondents shall file and serve a written outline of submissions as to the basis they claim the applicants are precluded from pursuing any alternative relief, other than compensation, and the basis upon which they contend the Court does not have the power to hear and determine the claims for alternative relief by close of business on Friday 31 January 2003.

(4) The Court shall hear the parties as to the availability of alternative relief at 10.30 am on Monday 3 February 2003.

The material was duly filed and the Court heard the parties on 3 February 2003.

Applicants' submissions

7 Without canvassing the whole of their extensive submissions, the thrust of the applicants' contentions were as follows:

· The Court has the power to make the orders sought by the applicants by way of alternative relief;

· The applicants' pleadings were more than adequate to satisfy the purpose of pleadings as they clearly put the respondents on notice that the issue of a fair exit regime, including an appropriate notice period, was squarely an issue in the proceedings;

· The respondents were on notice from the outset that if the Court were not to grant the primary relief then the applicants' fallback position was that the Court should at the very least vary the contract to install a fair exit mechanism that included a fair notice period;

· The Court has acknowledged in earlier judgments in the proceedings that the pleadings do give scope to the applicants to pursue alternative relief other than in the form of compensation and that the applicants had not foreclosed on that option. Further, that it was a matter for the Court's discretion what should be the form of relief and the Court had not foreclosed on its options in that regard;

· The Court refused the package of relief constituting the primary relief in the context of refusing tenure or qualified tenure. This did not mean that elements of the primary relief claimed could not constitute part of the alternative relief;

· The applicants are entitled to formulate their claim for alternative relief having regard to the Court's findings in relation to unfairness and are entitled to adopt elements of the primary relief for that purpose.

Respondents' submissions

8 The respondents made equally extensive submissions, the main points being:

· 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.

· The findings made by the Court and the refusal of every element of the primary relief sought, lead to the inevitable conclusion that Post-Judgment Relief of the kind now sought cannot be granted without calling into question many, if not all, of those findings.

· If the applicants are not precluded by all or any of the Estoppel by Record Principles from seeking all or any of the Post-Judgment Relief, the applicants must first seek and obtain leave to further amend the Third Further Amended Summons in accordance with the Court's Rules before being entitled to seek such relief

· An applicant is specifically required by the Rules and the Act to give proper notice by its pleading of the claim that it makes and the orders sought;

· The pleading process is intended, at the close of pleadings, to produce clear and precise issues which may be of either fact or law or both fact and law. They are also the issues that are to be submitted for the Court’s determination;

· Consistent with their object or functions, the rules under which the Commission conducts its proceedings give effect to procedural fairness principles in the same way that those principles are given effect to principles of pleading in the Supreme and Federal Courts;

· If it was assumed for the purpose of argument that the applicants were not precluded by the Estoppel by Record Principles from seeking any part of the Post-Judgment Relief (which is denied), they could not seek any such relief without first seeking and obtaining leave to amend their summons. Among other things, that would require the applicants to file and serve a Notice of Motion together with the proposed revised document specifying, inter alia, the amended orders sought – as the applicants did in their Third Further Amended Summons. The question of leave would then be decided in accordance with established principles.

Consideration

9 To say that every issue in this case has been vigorously contested would be an understatement. That this is the 13th judgment in these proceedings on issues of substance makes the point.

10 The need for this judgment was brought about by the respondents' contention that, with the primary relief sought by the applicants having been refused by the Court, the injunctive orders made on 24 October 2001 preventing the first respondent from terminating the applicants' dealership should be dissolved. The applicants opposed this course on the grounds that the Court had yet to consider whether the applicants were entitled to any alternative relief in light of the Court's finding of unfairness on the part of the respondents and, if so, what the form of that alternative relief should be.

11 It became apparent that if the only available alternative relief was compensation there could be no reason why the injunctive orders could not be dissolved. However, if it was open to the Court to grant some other form of relief, for example an extended period of notice, the applicants contended that it would be premature to dissolve the orders or to even amend them. It became necessary, therefore, in light of the respondents' insistence that the injunctive orders should be lifted, to consider whether, and if so in what form, the applicants were entitled to alternative relief given the Court's findings of unfairness in its judgment of 19 December 2002.

12 It may be seen from the submissions of the parties that, firstly, what the respondents contended was that the applicants are estopped from pursuing what the respondents referred to as, not alternative relief but rather, "post-judgment relief". However, it was submitted if the Court was to hold this was not so, the applicants must first seek and obtain leave to further amend the Third Further Amended Summons in accordance with the Court's Rules before being entitled to seek such relief.

13 The respondents take this position on the basis that the post-judgment relief was not part of the applicants' pleadings and given that the Court has refused the primary relief, the post-judgment relief is a "breathtakingly audacious" attempt by the applicants to re-formulate their claims and to seek to by-pass the Court's decision to refuse the primary relief.

14 The applicants contended, on the other hand, that the pleadings provide scope for the alternative relief they seek; that the respondents have been on notice from the outset that if the primary relief was refused they would be pursuing, by way of alternative relief, a "fair exit mechanism"; and, that the fact that the primary relief was refused is no barrier to the applicants seeking to pursue elements of that primary relief provided in doing so it is consistent with the Court's findings as to unfairness. The applicants submitted their claims for alternative relief were entirely consistent with the Court's findings in relation to unfairness.

15 The applicants contended that the Court's refusal of the primary relief had to be seen in the context of the claim for tenure or qualified tenure. That is, the Court refused the package of primary relief claimed by the applicants because the Court was not prepared to grant tenure or qualified tenure in respect of the dealership. It was submitted that in considering the question of alternative relief it would have been open to the Court to extract elements of the claims for primary relief and re-constitute them as alternative relief. However, the respondents had asked the Court that if it found there was unfairness but, nevertheless, refused the primary relief, the respondents should be given the opportunity of making further submissions on the question of alternative relief. The applicants were content with this course.

16 In determining whether the applicants are entitled to pursue their alternative relief, the first consideration is the Court's power. This did not appear to be an issue between the parties and, in any event, I do not consider there is any doubt that the requisite power exists. Secondly, there is the question of the pleadings.

17 The Industrial Relations Commission Rules 1996 lay down the requirements for initiating proceedings under s 106:

18A. New procedure under section 106 (Unfair contracts)

(1) An application to the Commission to exercise the powers conferred on it by section 106 must be in Form 12A and must:

(a) specify in summary the matters of fact and law which form the basis of the application, but not the evidence by which those facts are to be proved, and

(b) contain sufficient information to allow the Commission to carry out its duty to conciliate under section 109 by a succinct summary.

Form 12A translates the requirements of r 18A into the proper form.

18 Rule 57 requires any party filing process to give the necessary particulars:

57. General

(1) A party filing any process must give the necessary particulars of any claim or other matter raised by that party in such process.

19 Section 170(1) of the Act provides:

170. Amendments and irregularities

(1) The Commission may, in any proceedings before it, make any amendments to the proceedings that the Commission considers to be necessary in the interests of justice.

(2) Any such amendment may be made:

(a) at any stage of the proceedings, and

(b) on such terms as the Commission thinks fit (including, if it can award costs in the proceedings, terms as to costs).

(3) If this Act, the regulations or a rule of the Commission is not complied with in relation to the institution or conduct of proceedings before the Commission, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings, or any decision in the proceedings.

(4) For the purposes of subsection (3), the Commission may wholly or partly set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings.

20 Rule 148 provides for the amendment of any document:

148. General

(1) A tribunal may, at any stage of any proceedings, on application by any party or of its own motion, order that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case in such manner as the tribunal considers to be necessary in the interests of justice.

(2) Unless the tribunal otherwise orders or permits, an application to amend shall be made by notice of motion.

21 On this question of pleadings the applicants referred to a number of cases. In Banque Commerciale SA In Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 293 Dawson J said:

Pleadings are but a means to an end and not an end in themselves and, as was pointed out in Pirie v Richardson (1927) 1 KB 448, at p 453, the rule prescribes no consequence for the failure to observe it. The basic function of pleadings was described by Isaacs and Rich JJ in Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In Liquidation) (1916) 22 CLR 490, at p517:

“Undoubtedly, as a general rule of fair play, and one resting on the fundamental principle that no man ought to be put to loss without having a proper opportunity of meeting the case against him, pleadings should state with sufficient clearness the case of the party whose averments they are. That is their function. Their function is discharged when the case is presented with reasonable clearness. Any want of clearness can be cured by amendment or particulars. But pleadings are only a means to an end, and if the parties in fighting their legal battles choose to restrict them, or to enlarge them, or to disregard them and meet each other on issues fairly fought out, it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest.”

22 In Klein, PMG & Ors v Adler [1996] NSWIRC 184, Schmidt J stated at 8-9 as follows:

It has long been recognised that actions brought under the predecessors to s 106 – s 275 of the 1991 Act and s 88F of the 1940 Act did not proceed on the basis of strict pleadings. For example in Robert Rolles and Others v Donald Scott Surgicals Pty Ltd and Anor (Unreported, Industrial Commission in Court Session, 19 February 1988):

“...In s 88F cases many of the issues between the parties depend upon the nature of the case which emerges in the running and the manner in which counsel presents the case”.

23 In Rolles the Full Court (Fisher P, Cahill VP, Bauer J) also said at 16:

the constraints of the practice and procedure familiar in courts of law and equity are of doubtful validity in proceedings under Part VIII of the Industrial Arbitration Act, 1940.

24 In Munro v Chubb Security Holdings Australia Ltd & Ors [2000] NSWIRC 215, Marks J stated at par [92] as follows:

Whilst this is not a court of strict pleading, it is obvious that respondents to actions brought under s106 of the Act must at all times be aware of the nature and extent of the claims against them.

25 It is clear from the foregoing that pleadings are not an end in themselves. Certainly, in so far as proceedings under s 106 are concerned, a party is not strictly limited to what it has put in its summons for relief provided that the respondent is not prejudiced or put at a disadvantage by the introduction of some new issue or claim that may have arisen in the course of proceedings. If that occurs it is a matter for the court to consider whether it will amend the pleadings "in such manner as the tribunal considers to be necessary in the interests of justice."

26 The function of pleadings, however, is more than merely stating the overall ambit of the dispute between the parties. A respondent is entitled to know with certainty the nature and extent of the claims being made against it and the Court would not proceed to vary a contract without first ensuring the respondent is fully aware of the claims and has been given the opportunity of addressing those claims. Where that is not the case the Court will not countenance the claims: see Vision Publishing Pty Limited v PK Lane Holdings Pty Ltd (1998) 84 IR 277; Bourke Air Charter v Easton (2001) 109 IR 443; Pilgrim v Wendy’s Supa Sundaes and Ors [2002] NSWIRC 308.

27 The primary relief sought in the third further amended summons in these proceedings involved the applicants continuing in the dealership. This was to be achieved by extensively amending the dealership agreements to remove those provisions the applicants claimed to be unfair and by inserting new provisions. For example, it was proposed that the 90 days' notice provision be deleted and a new provision inserted extending the notice period and subjecting the giving of notice to certain conditions. Various alternatives were offered in this respect. The pleadings also sought "Such further and other orders as the nature of the case may require". Further, the pleadings stated that "If the Agreements are varied by the Court, but not in the manner sought by the applicants, then the applicant will seek (compensation)" and further that "The applicants reserve the right to add to or otherwise modify their claim for compensation in light of the Court's rulings on unfairness and on whether the Agreements should be varied or set aside."

28 The respondents contended that the relief and the only relief the applicants sought were orders entitling them to remain in the dealership but that if they were not successful in that respect the only alternative relief sought was compensation in the event the Court found unfairness and varied the dealership agreements. This interpretation of the pleadings would mean that if the Court found against the claim for tenure or qualified tenure in the dealership but, nevertheless, found there was unfairness, the dealership agreements would be varied to remedy the unfairness and money orders made in connection with the unfairness. This interpretation would preclude the alternative of varying the dealership agreements to, for example, extend the period of actual notice of termination thereby allowing the applicants to remain in the dealership beyond a period of 90 days.

29 The other interpretation, and the one pressed by the applicants, is that the applicants did not spell out in specific terms what might be the alternative relief because that would depend largely on the Court's findings as to unfairness. Instead, the applicants relied on the Court's inherent power to fashion the relief according to the unfairness found in much the same way that, even though an applicant might seek a variation of a contract to provide for 12 months' notice of termination, the Court may decide that the notice should be six months. So that whilst the Court rejected the package of relief aimed at securing tenure or qualified tenure in the dealership it was open to the Court to determine on the pleadings, on the basis of findings of unfairness, the applicants should be entitled to a fair exit mechanism from the dealership.

30 The applicants also referred to where the pleadings claim "Such further and other orders as the nature of the case may require" and that "The applicants reserve the right to add to or otherwise modify their claim for compensation in light of the Court's rulings on unfairness and on whether the Agreements should be varied or set aside." As to the former, this could only become operative if the applicants spelt out what the further or other orders sought were to be and the respondents were on notice as to those orders. As to the latter, this relates only to the question of compensation.

31 In the absence of anything more, and given the extensive submissions that have been put to the Court on this issue, I have come to the conclusion that it could not be said that the respondents were on notice of the raft of alternative claims contained in the applicants' document filed in proceedings on 24 January 2003 and later revised on 30 January 2003. It would have been very difficult, if not impossible, for the respondents to have anticipated the alternative relief in all its permutations now claimed by the applicants which, although it is said was formulated on the basis of the Court's findings of unfairness, reflect a considerable degree of ingenuity and innovation that could not have reasonably been apparent from the claims in the third further amended summons. It would be grossly unfair for the respondents to now have to meet the claims for alternative relief not having had proper notice of them.

32 On the other hand, it must be acknowledged that it would have been very difficult for the applicants to formulate the alternative relief in this case until it was known what the Court's findings were in relation to unfairness.

33 The applicants submitted that there was no obligation on them to seek to amend the pleadings because with the handing down of the substantive judgment on 19 December 2002 the evidentiary case was closed. I do not agree. This case was always going to be conducted in two parts. The appropriate course for the applicants to have followed would have been, in their original pleadings, to reserve the right to add to or otherwise modify their claim in light of the Court's rulings on unfairness and in doing so not limit that reservation to the question of compensation, as was the case in the third further amended summons. Then, in the light of the Court's findings regarding unfairness, the applicants should have applied to amend their pleadings in accordance with the Commission's Rules. Alternatively, in the absence of having reserved the question in the original pleadings, it would have been open to the applicants to seek leave to amend their pleadings on the grounds that given the findings of unfairness the applicants were now in a position to fashion the claim for alternative relief in an informed way.

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.

36 The second observation I would make is this: The primary relief sought by the applicants has been refused and subject to a determination as to alternative relief, the Court does not intend to block the respondents' right to terminate the dealership beyond a period that is reasonable. Further, given the decision to refuse primary relief and the reasons underpinning that decision, it would be entirely inconsistent with that refusal to put in place an exit regime that overlooked the fact that the relationship between the applicants and respondents has broken down irretrievably. Moreover, if the Court were to consider as an alternative form of relief a period of actual extended notice, it would be the minimum the Court considered to be fair in the circumstances.

37 In other words, I consider that it is entirely open to the applicants to pursue, by way of alternative relief, compensation and an extended period of actual notice that is fair in the circumstances and perhaps in this respect the considerations in Crawford Fitting Co v Sydney Valve and Fitting Pty Ltd (1988) 14 NSWLR 438 are relevant. Any other form of relief claimed by the applicants would have to be consistent with the Court's decision to refuse the primary relief. In the light of these observations the applicants should re-visit the claims for alternative relief set out in their document of 30 January 2003.

38 I am not prepared to dissolve the injunctive orders at this stage although I consider there is scope for loosening the constraints on the respondents. I am not prepared to allow the respondents to move against the dealership in such a way that might interfere with the Court's treatment of the question of alternative relief. The parties are again directed to hold discussions with a view to reaching agreement on revising the terms of the orders made on 24 October 2001.

Orders

39 The Court makes the following orders:

1. The applicants are given leave to apply to amend their claims for alternative relief in the light of the judgment of 19 December 2002 in these proceedings, namely, Gough & Gilmour Holdings Pty Limited & Ors v Caterpillar of Australia Limited & Anor (No. 11) [2002] NSWIRComm 354.

2. In the event that the applicants decide to seek leave it shall be by way of notice of motion to be filed and served by 4.00 pm 20 February 2003.

3. The proceedings are listed for further directions at 9.30 am on Monday 24 February 2003.

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LAST UPDATED: 13/02/2003