Johnstone v Deutsche Australia Ltd; Deutsche Australia Ltd & Anor v Johnstone & Anor [2003] NSWSC 933

Johnstone v Deutsche Australia Ltd; Deutsche Australia Ltd & Anor v Johnstone & Anor [2003] NSWSC 933

The proposed amendments to the amended summons were not allowed because the pleaded abuse of process and unfair conduct were directed to Deutsche's commencement of the Federal Court proceedings and were not linked to an allegation that the employment contract became unfair; unfair conduct alone is insufficient to invoke Industrial Relations Act 1996, s 106. The proposed amendment to the defence was also inappropriate because a non-tort allegation of abuse of process does not negate an element of Deutsche's cause of action and should be determined when raised, not as a defence at trial. The associated discovery refusal therefore also stood.

Jurisdiction
Australia
Judgment Date
30 October 2003
Procedural Posture
Review of Registrar's Decisions Concerning Amendment of Pleadings and Discovery in Transferred Proceedings / Review Under Supreme Court Rules 1970, Pt 61 R 3
Outcome
Johnstone's applications for review failed; the Registrar's decisions refusing leave to amend were confirmed, and the discovery refusal was also upheld.
Legal Topics
['amendment of Pleadings' "review of Registrar's Decisions" 'unfair Contracts' 'abuse of Process' 'discovery']
['civil Procedure' 'employment and Industrial Relations' 'contract Law'] ['amendment of Pleadings' "review of Registrar's Decisions" 'unfair Contracts' 'abuse of Process' 'discovery']

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Procedural Posture

Review of Registrar's Decisions Concerning Amendment of Pleadings and Discovery in Transferred Proceedings / Review Under Supreme Court Rules 1970, Pt 61 R 3

Legal Issues

  1. 1 ["Whether proposed amendments alleging that Deutsche's Federal Court proceedings were an abuse of process and unfair conduct had a sufficient nexus with the employment contract to invoke Industrial Relations Act 1996, s 106." 'Whether an allegation of unfair conduct alone is sufficient to invoke Industrial Relations Act 1996, s 106.' "Whether an allegation of abuse of process, not pleaded as the tort of collateral abuse of process, is an appropriate defence to Deutsche's claim." "Whether discovery concerning Deutsche's reasons for commencing the Federal Court proceeding and communications with Johnstone's new employer should be ordered."]

Ratio Decidendi

The proposed amendments to the amended summons were not allowed because the pleaded abuse of process and unfair conduct were directed to Deutsche's commencement of the Federal Court proceedings and were not linked to an allegation that the employment contract became unfair; unfair conduct alone is insufficient to invoke Industrial Relations Act 1996, s 106. The proposed amendment to the defence was also inappropriate because a non-tort allegation of abuse of process does not negate an element of Deutsche's cause of action and should be determined when raised, not as a defence at trial. The associated discovery refusal therefore also stood.

Court Disposition

Johnstone's applications for review failed; the Registrar's decisions refusing leave to amend were confirmed, and the discovery refusal was also upheld.

Orders

  • ['The parties are to be heard on costs.' 'The parties are directed to bring in short minutes of orders reflecting the reasons.']