Austin & Anor v Globe Compressors (Aust) Pty Ltd [2009] QDC 210

1-1 [2009] QDC 210 DISTRICT COURT CIVIL JURISDICTION JUDGE SAMIOS No 3595 of 2008 JOHN HOWARD AUSTIN and JOANNE LEE AUSTIN Plaintiffs and GLOBE COMPRESSORS (AUST) PTY LTD Defendant BRISBANE ..DATE 02/06/2009 ORDER -- 1 of 5 -- 1-2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: The defendant seeks summary judgment in relation to claims made by the two plaintiffs against the defendant. Each of the plaintiffs brings claims for damages. These damages claims are damages for wrongful dismissal and/or breach of contract arising from termination of their employment with the defendant without notice, damages for non- payment of accrued annual leave entitlements and damages for loss of various chattels and personal property not returned by the defendant when the plaintiffs were excluded from their former workplace. The defendant says it is relieved of its obligations to give reasonable notice because of alleged serious misconduct on the part of each of the plaintiffs rendering them liable to summary dismissal. The annual leave entitlement is also disputed and reliance is placed upon a share sale agreement and its terms. It is submitted that share sale agreement and its terms makes no provision for the payment of annual leave to the plaintiffs. Finally, there is the claim for the retained chattels. The defendant, by its counsel Mr Bates on the hearing of this application, accepted that the defendant was not in a position to do anything about this claim for chattels now that it has been particularised by the first plaintiff in his affidavit. It is observed that the first plaintiff claimed $10,000 for these items but now, it being particularised, the claim is for -- 2 of 5 -- 1-3 ORDER 1 10 20 30 40 50 60 $6,100. Rule 293 sub-rule 2 provides: "If the Court is satisfied (a) that the plaintiff has no real prospect of succeeding on all or part of the plaintiff's claim and (b) there is no need for a trial of the claim or the part of the claim, the Court may give judgment for the defendant against the plaintiff for all or the part of the plaintiff's claim and may make any other order the Court considers appropriate." The defendant's claim for the most part relies upon an email but also conversations between the male plaintiff and a Mr Clur of the defendant. Without repeating the text of the email the submission that the defendant makes is that it is quite clear that the email, together with admissions made by the plaintiffs, would satisfy me that the plaintiffs were in breach of their obligations as employees to the defendant and there was an entitlement to summarily dismiss them and, therefore, no obligation to give 12 months' notice. It seems to me that the submission does depend upon the background context and previous dealings for a determination to be made as to its true import and intent. It may be that one view of the facts is as submitted by the defendant that it amounts to a breach of those obligations by an employee to an employer but there may very well be another view of the facts once the facts are considered in their full context. That is not available on a summary judgment application. The relevant conversation is also disputed, therefore, I've come to the view that the plaintiffs have a real prospect of -- 3 of 5 -- 1-4 ORDER 1 10 20 30 40 50 60 succeeding on the damages for summary dismissal part of the claim and therefore there is a need for a trial. As to the annual leave claim, arguably this should depend upon a mere reading of the share sale agreement and as counsel for the defendant, Mr Bates, submitted it is clear there is no reference to the plaintiffs in this document, therefore, the defendant ought to be entitled to summary judgment on that part of the claim. However, I accept Mr Murdoch SC's submission that at this stage the reliance on the share sale agreement, or any other matters that the defendant may rely upon, have not been fully pleaded. Once those matters are fully pleaded then the plaintiff may be in a position to reply and at that stage a determination can be made as to whether there is no need for a trial. At this stage, I consider there is a need for a trial and that on the face of it there is a real prospect of the plaintiff succeeding on this claim. Finally, that brings me to the damages for the property. As I said the defendant accepts that it cannot do anything about that at this stage of the proceedings. In all these circumstances I dismiss the application for summary judgment. ... HIS HONOUR: I am satisfied the application is not a frivolous application. There was substance in the application. It will -- 4 of 5 -- 1-5 ORDER 1 10 20 30 40 50 60 turn out, of course, at the end of the day whether the defendant was correct or not to bring the application. Therefore, I do not consider that indemnity costs are appropriate. I also consider that because it will be determined by the trial who was right and who was wrong that these costs of this application be in the cause. ----- -- 5 of 5 --