JURISDICTION	:	DISTRICT COURT OF WESTERN AUSTRALIA 
IN CHAMBERS 

LOCATION	:	PERTH 

CITATION	:	DIAZ -v- SCHLUMBERGER AUSTRALIA PTY LTD [2010] WADC 193 

CORAM	:	DEPUTY REGISTRAR HARMAN 

HEARD	:	15 NOVEMBER 2010 

DELIVERED	:	23 DECEMBER 2010 

FILE NO/S	:	CIV 467 of 2010 

BETWEEN	:	HERMITANIO DIAZ
Plaintiff
 
AND
 
SCHLUMBERGER AUSTRALIA PTY LTD
Defendant 

Catchwords:
Practice - Practice under the Rules of the Supreme Court of Western Australia 1971 - Application to strike out the plaintiff's statement of claim 
Legislation:
Nil 
Result:
Application successful 

Representation:
Counsel:
Plaintiff	:	Mr L Gandini
Defendant	:	Mr N Beech 
Solicitors:
Plaintiff	:	Chapmans
Defendant	:	Malesons Stephen Jaques 

Case(s) referred to in judgment(s):

Rogan‑Gardiner v Woolworths Limited [No 2] [2010] WASC 290

1	DEPUTY REGISTRAR HARMAN:  At the hearing of the defendant's application made on 4 June 2010 I recorded my determination in the following terms:
1.	Paragraphs 4 to 10 inclusive of the further amended statement of claim dated 19 May 2010 be struck out.
2.	As a consequence of par 1, the further amended statement of claim be struck out.  
3.	Within 14 days the plaintiff do file and serve any statement of claim.
2		On 3 September 2010 the plaintiff filed a statement of claim dated 2 September 2010.  
3		By its application dated 28 September 2010 the defendant seeks to strike the statement of claim, alternatively par 4 to par 9 inclusive, consequently that the substituted statement of claim be struck.  It also seeks to have the claim dismissed.
4		Under the first part of the application the defendant relied on the plaintiff's delay and his failure to obtain an extension of time within which to file the pleading.  
5		The pleading was filed outside the period expressed in par 3 above.  At the hearing the plaintiff made no application to extend time.  The broader context includes the fact that as the writ had been indorsed with a statement of claim.  The effect of par 3 had been to preserve the action.  
6		In my opinion whatever the consequences of the late filing of the pleading may be, they could not include striking it out.
7		The balance of the issues presented at the hearing related to the substance of the pleading.  
8		At par 4 the plaintiff alleges a contract of employment.  He then provides particulars of its terms both express and implied, however the terms particularised are not specified as being in either category.  That failure is compounded by the plea of breach at par 6.  Paragraph 6 is as follows:
The defendant breached the relevant terms of the contract by terminating the employment of the plaintiff for a non bona fide reason, alleging redundancy, when it knew that redundancy was not the true reason for the termination of employment.
9		Particulars of breach are expressed by reference to terms specified at par 4.  
10		I do not consider that there is any pleading to support the allegation of breach than par 4(xi) and par 4(viii).  At par 4(xi), the plaintiff puts a case for fair treatment prior to and at the point of termination of the contract.  At par 4(viii) the plaintiff extends those cases to the defendant acting other than fairly and reasonably in relation to the decision to terminate the plaintiff's employment.  
11		As I have noted, the reader is not informed whether either term is express or that it is proposed that it be implied.  If the former, neither is identified as such, if the latter, there is no pleading to found its implication.  To the extent that the plaintiff relies on breach of par 4(viii) it is not apparent that the case put is substantially different to that put in relation to par 4(xi).  In my opinion par 4 and par 6 are insufficient as pleadings.
12		At par 7 the plaintiff pleads wrongful termination for which he relies on breach of the same terms.  In the particular of that allegation he contends that the defendant's breach was by its deceitful conduct which he specifies as advice that the plaintiff's position had been made redundant when following termination of the plaintiff's employment it was filled by another employee.
13		In my opinion par 7 is overburdened but more importantly it is insufficient.  Firstly there is no pleading to found the proposition that the plaintiff had any position with the defendant other than as an employed technician.  Secondly there is nothing to identify the other employee, even by reference to the date of his employment by the defendant in the particular capacity.  
14		Paragraph 8 pleads loss and par 9 the defendant's contumelious disregard of the plaintiff's rights.  The last allegation draws on par 6 and par 7.  
15		It is common ground that the engagement of the plaintiff by the defendant was terminated and that the reason that it gave for the termination was redundancy.  It appears to be central to whatever case that the plaintiff would bring that in so doing the defendant was motivated other than by good faith.  I took from the plaintiff's submissions that his case or cases would depend upon the court finding an implied term along the lines that he has indicated.  
16		During the course of submissions, the applicant referred to a recent decision of the Supreme Court of Western Australia in Rogan‑Gardiner v Woolworths Limited [No 2] [2010] WASC 290.  Hall J then had before him a case in which the plaintiff had alleged that in terminating her employment her employer had breached an implied term of good faith.  
17		I am not bound by the determination or his Honour's reasoning.  Nonetheless the consideration that he gave to the context by which such a term would be sustained is persuasive.  His Honour considered that only an ongoing relationship would do so.  I have no difficulty with his conclusion that an employment relationship in the process of termination would not do so. 
18		The plaintiff submitted that it remained open to consider that at a point prior to termination there would be scope to imply such a term.  I accept that the scope of par 4(x) and par 4(viii) refer to such a period however logic would render that scope illusory.  That is because any consideration given to the question of termination that had been carried forward would have been had in the context of termination.  In effect the process commenced by contemplation of termination would mark out a defined period during which there would be no scope for the term sought to be implied to emerge.  
19		As I indicated at the conclusion of the hearing, the task of assessing the application to dismiss the claim would be complicated by insufficiency of the plaintiff's pleading.  Be that as it may I am satisfied that any case of the plaintiff would depend upon the court implying a term of good faith.  I am satisfied that the court would not do so.  I would only be persuaded to withhold the judgment sought by the defendant if I was satisfied that the law was evolving and may advantage the plaintiff.  I am sufficiently persuaded by the reasoning of his Honour in Rogan‑Gardiner  that I do not perceive that is scope for it to do so.
20		Even if I had reached a different conclusion at that point, at the very least, in the broader context to which I have referred I am not persuaded that it is appropriate for the court to sustain the action in the absence of any pleading or indorsement.