Gough & Gilmour Holdings Pty Ltd & Ors v Caterpillar of Australia Ltd and Ors [2007] NSWIRComm 3

Industrial Court of New South Wales

CITATION: Gough & Gilmour Holdings Pty Ltd & Ors v Caterpillar of Australia Ltd and Ors [2007] NSWIRComm 3

FIRST APPLICANT Gough & Gilmour Holdings Pty Ltd

SECOND APPLICANT Harcourt David Gough

THIRD APPLICANT Anthony Lansley Gilmour

PARTIES: FIRST RESPONDENT Caterpillar of Australia Limited

SECOND RESPONDENT Caterpillar Inc.

THIRD RESPONDENT Caterpillar SARL

FOURTH RESPONDENT Caterpillar Overseas Credit Corporation SA

FILE NUMBER(S): IRC 5227 of 2000

CORAM: Boland J

Unfair contract - Application by applicants to amend pleadings - Application by respondents to dismiss or permanently stay proceedings - Principles governing dismissal motions - Whether jurisdiction to proceed to deal with claims for compensation in circumstances where the law had changed since Court's finding in 2002 that contracts were unfair - Whether contracts were contracts whereby a person performs work in any industry - Related condition - Collateral arrangement - Consideration of s 106(2A) of the Industrial Relations Act 1996 - Whether 106(5) only authorises an order for the payment of money in the nature of restitution - Loss of opportunity - Goodwill - Principles governing amendment to pleadings - Whether amendments objectionable - Whether amendments met requirements of r 18A of the Industrial Relations Commission Rules 1996 - Whether amendments amounted to further causes of action - Whether amendments were futile - Whether amendments gave rise to prejudice - Whether amendments were in good faith - Whether delay on the part of the applicants was a basis for refusing amendments - Dismissal application refused - Leave granted to amend pleadings CATCHWORDS: Practice and Procedure - Unfair contract - Application by applicants to amend pleadings - Application by respondents to dismiss or permanently stay proceedings - Principles governing dismissal motions - Whether jurisdiction to proceed to deal with claims for compensation in circumstances where the law had changed since Court's finding in 2002 that contracts were unfair - Whether contracts were contracts whereby a person performs work in any industry - Related condition - Collateral arrangement - Consideration of s 106(2A) of the Industrial Relations Act 1996 - Whether 106(5) only authorises an order for the payment of money in the nature of restitution - Loss of opportunity - Goodwill - Principles governing amendment to pleadings - Whether amendments objectionable - Whether amendments met requirements of r 18A of the Industrial Relations Commission Rules 1996 - Whether amendments amounted to further causes of action - Whether amendments were futile - Whether amendments gave rise to prejudice - Whether amendments were in good faith - Whether delay on the part of the applicants was a basis for refusing amendments - Dismissal application refused - Leave granted to amend pleadings