Graeme Kenneth Breese & Anor v Gloucester Shire Council [2006] NSWIRComm 179

Graeme Kenneth Breese & Anor v Gloucester Shire Council [2006] NSWIRComm 179

The proposed amendment was allowed because it clarified and elucidated the basis on which the applicants brought their claim and no prejudice was asserted, while the respondent's rights to renew its s 108B argument were reserved. The s 108B issue could not properly be determined at the interlocutory stage because the parties disputed the evidentiary material and the inferences to be drawn about the alleged overarching arrangement, so it could not be said that the proceedings were wholly misconceived or lacked an arguable legal foundation. The concurrent s 365 proceedings did not constitute an abuse of process because they were advanced as an alternative claim in the same Court, the...

Jurisdiction
Australia
Judgment Date
01 June 2006
Procedural Posture
Application Under S 106 of the Industrial Relations Act 1996 / Interlocutory Notice of Motion Concerning Amendment of Summons, S 108 B Time Bar, Stay and Abuse of Process
Outcome
Leave to amend granted; abuse of process stay application dismissed; balance of respondent's motion stood over with liberty to apply; costs thrown away by amendment awarded to respondent and other interlocutory costs reserved.
Legal Topics
['unfair Contracts' 'amendment of Summons' 'threshold Jurisdiction Objection' 'time Limit Under S 108 B' 'abuse of Process' 'concurrent Recovery Proceedings']
['industrial Relations' 'practice and Procedure'] ['unfair Contracts' 'amendment of Summons' 'threshold Jurisdiction Objection' 'time Limit Under S 108 B' 'abuse of Process' 'concurrent Recovery Proceedings']

Case Brief

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Procedural Posture

Application Under S 106 of the Industrial Relations Act 1996 / Interlocutory Notice of Motion Concerning Amendment of Summons, S 108 B Time Bar, Stay and Abuse of Process

Legal Issues

  1. 1 ['Whether the applicants should be granted leave to amend the summons to further particularise the alleged arrangement, agreement or contract under s 106 of the Industrial Relations Act 1996.' "Whether the respondent's reliance on s 108B of the Industrial Relations Act 1996 could be determined at the interlocutory stage." "Whether the applicants' concurrent applications for recovery of money under s 365 of the Industrial Relations Act 1996 constituted an abuse of process justifying a stay." 'What costs orders should be made in relation to the amendment and interlocutory proceedings.']

Ratio Decidendi

The proposed amendment was allowed because it clarified and elucidated the basis on which the applicants brought their claim and no prejudice was asserted, while the respondent's rights to renew its s 108B argument were reserved. The s 108B issue could not properly be determined at the interlocutory stage because the parties disputed the evidentiary material and the inferences to be drawn about the alleged overarching arrangement, so it could not be said that the proceedings were wholly misconceived or lacked an arguable legal foundation. The concurrent s 365 proceedings did not constitute an abuse of process because they were advanced as an alternative claim in the same Court, the...

Court Disposition

Leave to amend granted; abuse of process stay application dismissed; balance of respondent's motion stood over with liberty to apply; costs thrown away by amendment awarded to respondent and other interlocutory costs reserved.

Orders

  • ["Leave is granted to the applicants to amend the summons in accordance with the form of proposed amended summons which accompanied the applicants' supplementary outline of submissions forwarded by Mr Moorhouse of counsel to my associate by facsimile transmission on 16 May 2006." 'The summons as amended should be...