DELLA - PIETRA v SUNPAK FRUIT JUICES PTY LTD [1991] NSWCA 77

DELLA - PIETRA v SUNPAK FRUIT JUICES PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, HANDLEY JJA and Hope AJA 23 September 1991, 23 September 1991 [1991] NSWCA 77

APPEAL — application to amend pleadings to raise issues not previously run at trial — application refused and appeal dismissed — Coulton v Holcombe 162 CLR 1 and WATER BOARD v MOUSTAKAS 77 ALR 193 applied.

Samuels AP This was an action for wrongful dismissal in which the present appellant was the plaintiff. In the events which have happened it is unnecessary, I think, to traverse the facts in any detail.

The defence before his Honour Judge McCredie below was, in substance, that the appellant had not been dismissed but had agreed to resign and a document of resignation was tendered and admitted in evidence.

Further, there was material that the agreement to which the appellant and the respondent came in November 1985 was that in consideration of a sum of some $37,000 and payment of what were described as statutory entitlements and other moneys, the appellant would furnish his resignation as he did.

Subsequently a further sum of $11,000, approximately, was paid and there is evidence as to how that was made up. It did not, it seems, include any amount for long service leave or for superannuation.

The learned judge found that the appellant had not been dismissed but had resigned in the circumstances which I have briefly summarised. There was a cross claim, but no further notice need be taken of that.

The appellant then filed a notice of appeal containing 59 grounds. Until a few days ago that stood as the basis for the appeal which, because of the time which it was inferred by the Registrar so many grounds would entail in argument, was set down for today and tomorrow.

However, in effect on Friday the appellant changed tack very significantly and indicated that he no longer desired to pursue all these grounds of appeal, but would endeavour to argue that the respondent had failed to pay him his statutory entitlements and, in particular, had failed to pay what was due for accrued long service leave, accrued annual leave, plus holiday loading and superannuation. Written submissions to this effect were provided late on Friday.