Camilleri v Steel Foundations Ltd [2001] QSC 454

46280 State Reporting [2.c0 DQs c. 4-s 1- (~ Queensland Governn1ent Bure a u ~~ Department oi justice and Attom<:y~ral Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION AMBROSE J No S7673 of 2001 PAUL CAMILLERI and STEEL FOUNDATIONS LIMITED BRISBANE .. DATE 12/11/2001I JUDGMENT :+th Floor, The Law Courts, George Street, Brisbane, a. 4000 1 REVISED COPIES ISSUED State Reporting Bureau Date 1q I I/ I of Plaintiff Defendant Telephone: (07) 3247 436-0 Fax: (07) 3247 5532 -- 1 of 7 -- 12112001 T18/NW8 M/T 1/2001 (Ambrose J) HIS HONOUR: These are applications more or less in the alternative, I suppose. The plaintiff, Mr Camilleri, brings action against the defendant, Steel Foundations, for damages for the wrongful termination of an employment contract that he had with them for five years which was to operate from July 1998. It was a term of that employment contract that it might be terminated by the defendant on various grounds including dishonesty. In fact, the plaintiff had a family company - I suppose some sort of trust arrangement principally for taxation purposes - called Camtech Services Pty Limited and there seems to be little doubt that in about July 1999 it was arranged, after an oral discussion between the plaintiff and an officei or officers of the defendant, Steel Foundations Limited, that instead of the defendant paying the plaintiff directly his entitlements under the employment agreement they would be paid to his family company, Camtech Services. And it is unnecessary to go to the evidentiary matters that have been canvassed at some length on the material read on this application. It suffices to say that paperwork was effected by both the plaintiff and representatives of the defendant, Steel Foundations, consistent with the contract of employment being vacated by mutual assent of the parties and replaced by a service contract between the defendant and Camtech. 2 JUDGMENT 1 10 20 30 40 . so 60 -- 2 of 7 -- 12112001 T18/NW8 M/T 1/2001 (Ambrose J) It is the case for the plaintiff, however, that this was simply an administrative course taken at the suggestion of 1 one of the directors of Steel Foundations. It was never intended that his contract of employment as chief executive 10 officer should be terminated or should be put at nought. The alternative assertion is that if that were the legal consequence of the oral arrangement made then the agreement between Camtech, his family company, and Steel Foundations 20 was that the contract of employment between the plaintiff and Steel Foundations should be in the same terms as that new contract between Camtech and Steel Foundations to the extent that that was possible which would involve, presumably, although it would be a matter for argument obviously, that it would be a contract that would last for five years from July 1998. And that the same amounts of money would be paid under the former employment contract and that the contract could be rescinded or discharged by Steel Foundations if the plaintiff did any of the things that would have constituted a breach in his contract with Steel Foundations effected back in July 1998. Well, the pleadings and the correspondence indicate clearly enough that the significant factual issue to be determined if the plaintiff is to succeed in his action as presently constituted or even if he is to succeed in his action as constituted if he is given leave to add his family company, Camtech Services, as a second plaintiff will depend upon the 30 40 . 50 oral agreement and arrangement made between the plaintiff 60 3 JUDGMENT -- 3 of 7 -- 12112001 T19-20/IK29 M/T 1/2001 (Ambrose J) and a Director/Secretary of Steel Foundations back in July 1999. 1 There was a lot of correspondence in which assertions are 10 made in solicitors' letters for the parties involved in this case. The only issue for me to determine is whether it is so clear that the plaintiff in his action presently constituted must fail because by agreement of the plaintiff and Steel Foundations his part was to be played by Camtech Services subsequent to July 1999 that his action should be struck out. It is really an application for summary judgment by the defendant on the basis that the plaintiff could not possibly succeed having regard to the evidence that has been canvassed on this application. It is clear that General Steel Industries v. the Railway Commission of New South Wales indicates that it is not a matter for me to investigate the evidence to see which version of events will more probably be accepted by a trial Court. It seems to me that the matter debated here must be considered against the background of applications that have been made subsequent to July 1999. In the Magistrates Court actions have been brought in which it is asserted, on the part of Steel Foundations, that, indeed, at material times after 1 July 1999 the plaintiff was an employee of the defendant, Steel Foundations. 4 JUDGMENT 20 30 40 . 50 60 -- 4 of 7 -- 12112001 T19-20/IK29 M/T 1/2001 (Ambrose J) In my view, this is a matter in which the issue raised as to the part that Camtech Services Pty Ltd played in this whole dispute, this whole relationship, ought be canvassed in the 1 plaintiff's action presently pending in this Court. . 10 It lS a matter that has been raised in the Magistrates Court by Steel Foundations Ltd and it seems to me that is sufficient reason to grant the plaintiff's application to add Camtech Services as a second plaintiff in his action which is presently pending in this Court. The defendant, Steel Foundations Ltd, has not yet pleaded to that action but has merely brought this application based upon the evidentiary material to which I have referred to get judgment against the plaintiff. The defendant, however, does not oppose the joinder application to join Camtech Services as a plaintiff should its application for judgment against the plaintiff fail. I am unpersuaded that the matter is so clear on the evidence as to exclude or deprive the plaintiff of the ability to call evidence and argue the matter upon trial in the ordinary way. It is not as if there is any documentary evidence to support the assertion that the contract of employment ceased when the new arrangement came in involving Camtech in July 1999 but as well as that the terms of the contract between Camtech, if there was one, and Steel Foundations must be a matter of implication to the extent that they are not 5 JUDGMENT 20 30 40 . 50 60 -- 5 of 7 -- 12112001 T19-20/IK29 M/T 1/2001 (Ambrose J) established by oral evidence and in my view even if the relationship that existed between the plaintiff and Steel Foundations was substituted for a new relationship between Camtech and Steel Foundations that new relationship, it seems to me, would be coloured by and the substance of it would arguably be the same as the substance of the one between the plaintiff and Steel Foundations under the employment contract in July 1998. In the circumstances, therefore, I propose to dismiss the application by the defendant for summary judgment. I propose to grant the plaintiff liberty to add Camtech Services Pty Ltd as a second plaintiff in its pending action and, of course, the defendant will then have liberty to counterclaim and the ordinary rules will then apply relating to replies and answers and so on. HIS HONOUR: I give you leave to add Camtech Services as a second plaintiff and to further amend the current statement of claim as desired and I need not make any order with respect to defences and counterclaims. That will just follow the ordinary constraints of the Rules. The Uniform Procedure Rules will apply. 6 JUDGMENT 1 10 20 30 40 . 50 60 -- 6 of 7 -- 1 12112001 T19-20/IK29 M/T 1/2001 (Ambrose J) HIS HONOUR: Well, in the circumstances I will order that the costs of the plaintiff's application to join Camtech Services Pty Ltd be costs in the cause and that the costs of the defendant's application for judgment against the 10 plaintiff be the plaintiff's costs in the cause both to be assessed on the standard basis. 7 JUDGMENT 20 30 40 . 50 60 -- 7 of 7 --