FEDERAL COURT OF AUSTRALIA

Steiner v La Trobe University [2002] FCA 621

CAROL STEINER  v  LA TROBE UNIVERSITY

V 631 of 1999 & V 632 of 1999

RYAN J

10 MAY 2002

MELBOURNE

UPON THE APPLICANT by its Counsel undertaking:

(a)        to submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the interlocutory injunction made hereunder or any continuation, with or without variation, thereof;  and

(b)        to pay the compensation referred to in (a) to the person there referred to;

THE COURT ORDERS THAT:

1.         The applicant be restrained until the hearing and determination of this proceeding or further order from making any application directed to the respondent under the Freedom of Information Act 1982 (Vic) (“the Act”) or taking any step in connection with any such application as now may be pending;

2.         The respondent have leave to file and serve by 31 March 2002 a Further Amended Defence to the Further Amended Consolidated Statement of Claim conforming with the draft Further Amended Defence (“the draft Defence”) which is annexure “JLEH-1” to the affidavit of Jennifer Lee Edwards Hoffman sworn 24 April 2002 and filed herein except for the inclusion of pars 17B to 17H inclusive and pars 18B and 18C thereof, provided that the respondent may further amend the draft Defence by substituting for the said pars 17B to 17H inclusive and 18B and 18C such further or other paragraphs as it may be advised in light of the reasons for judgment delivered this day but without prejudice to the right of the applicant, if so advised, to object to such further amendments.

3.         The applicant file and serve by 14 June 2002 any Reply to the Further Amended Defence of the respondent.

4.         The respondent pay the applicant’s costs (if any) thrown away by reason of the amendment of the respondent’s Defence.

5.         The applicant have leave to administer interrogatories for the examination of the respondent in the form of the draft interrogatories filed herein on 3 May 2002 and initialled by Ryan J, such interrogatories to be taken to have been served on the respondent this day.

6.         The respondent by 31 May 2002 make file and serve answers to the interrogatories referred to in par 5 of this Order.

7.         Paragraph 10 of the Orders made 7 December 2001 requiring the applicant to file and serve a court book by 24 April 2002 (subsequently extended by order of the Registry to 3 May 2002) be vacated.

8.         The respondent have leave, having by its Counsel undertaken not to abstract, alter or deface any such document and to supply to the solicitors for the applicant a copy of any such document photocopied by it, to uplift the documents this day produced to the Court by Monash University upon subpoena dated 29 April 2002 for the purpose of photocopying such of them as it may be advised.

9.         The applicant have leave, having by her Counsel undertaken not to abstract alter or deface any such document, to uplift the documents referred to in par 8 of this Order for the purpose of photocopying such of the said documents of which copies have not been furnished to the applicant pursuant to par 8 of this Order as she may be advised.

10.       The further return of the said subpoena be adjourned to 11 July 2002 before Registrar Efthim.

11.       The directions hearing herein be adjourned to be conducted by Registrar Efthim on 11 July 2002.

12.       Liberty be reserved to either party to apply on not less than 48 hours notice in writing to the other side.

13.       Subject to par 4 of this Order, the costs of both parties of and incidental to the motions on notice respectively dated 22 April and 24 April 2002 be reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The respondent to these proceedings La Trobe University (“La Trobe”), has applied for leave further to amend its amended defence to the applicant's further amended consolidated statement of claim (“the statement of claim”). 

2                     It was put at the forefront of his submissions by Mr Willoughby-Thomas for the applicant that the Court should, in the exercise of its discretion, refuse leave to make any of the amendments embodied in the proposed further amended defence.  That submission was based on a lack of explanation for now seeking leave to amend so close to the trial of the action, and a suggestion that the existing defence pleads facts asserted in affidavits by certain witnesses for La Trobe which it knows will not be accepted at trial.  It would be quite inappropriate on an interlocutory application such as the present for the Court to express any view about that suggestion, and I decline to do so. 

3                     Reference was made by Mr Willoughby-Thomas to the judgment of North J in Australian Competition and Consumer Commission v Pacific Dunlop Ltd (2001) FCA 740, where his Honour said, at [70];

“PDL relied heavily on the failure of the ACCC to provide any explanation for the delay in seeking the amendment.  In State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, Kirby J said, at 170;

“Considerations which tend to argue against the grant of an indulgence include many which are the counterparts of the foregoing.  Thus the failure of a party to offer anything by way of explanation for a late application [for leave to amend] has been held relevant [see Amatek v Botman (1995) 13 ACLC 1729 at 1732].” ”

4                     However North J went on to observe at [74] of the same decision;

“Whilst absence of an explanation is a relevant consideration on an application for leave to amend, it must be balanced against other relevant considerations.  In particular an order for costs thrown away as a result of any amendments allowed (which order for costs the ACCC does not resist) answers much of the prejudice suffered by PDL as a result of the delay.”

Against any remaining limited prejudice is the consideration that the proposed amendment seeks to litigate an issue of concern to the public, namely the alleged danger from unsafe products.  It is noteworthy that the case referred to by Kirby J in the extract from JL Holdings concerned an application to amend made at the trial of the action.  In the present case the application is made in the course of interlocutory steps well in advance of the final hearing.”

5                     Similar considerations obtain in the present case which has not yet been set down for trial.  Some explanation for the making of the application for leave to amend the defence now has been provided by a change in La Trobe’s Counsel and the engagement of the parties in April this year in a mediation which proved unsuccessful.  I have also been influenced by the recollection that the applicant was granted very considerable indulgences earlier in these proceedings before her pleadings were reshaped in a broadly acceptable form.

6                     As well, I do not consider that the amendments for which leave has been sought involve a radical recasting of the applicant's pleadings.  There has been no identification of any prejudice to the applicant if leave were granted which could not be compensated by the usual order as to costs thrown away.  I shall therefore proceed to examine in detail the amendments embodied in the proposed amended defence.

7                     By the proposed further amended defence, La Trobe seeks to provide, by reference to an exchange of emails, further particulars of an allegation that the applicant had rejected an offer from La Trobe by making a counter offer.  I can discern no prejudice to the applicant by the provision of those particulars, and accordingly I give leave further to amend the particulars to paragraph 2D of the amended defence (“La Trobe's defence”), to conform with the particulars set out in the draft further amended defence which is exhibit JLEH-1 to the affidavit of Jennifer Lee Edwards Hoffman, sworn 24 April 2002 (“the draft pleading”).

8                     I similarly give leave to make what I regard as the innocuous amendment to [4] of La Trobe's defence which is contained in the draft pleading.  The draft pleading alters the date attributed to an invitation to the applicant to attend a retreat at Beechworth, and the statement of the purpose for which that invitation was extended.  Those amendments are essentially formal or semantic, and I shall allow them.  The draft pleading also substitutes for the existing extensive particulars appended to [4A], a reference to certain paragraphs of an affidavit of Professor White which has been filed in these proceedings.  That change of particulars has not been shown to cause any irremediable prejudice to the applicant and I shall allow it. 

9                     The most substantial amendment proposed by the draft pleading is the insertion of [17A] to [17H] in the following terms;

“17A   Further and in the alternative, if the Applicant and the Respondent entered into an oral employment agreement on 8 February 1999 as alleged in paragraph 2 of the Further Amended Consolidated Statement of Claim (“the purported 8 February 1999 Agreement”), such agreement was unenforceable by reason of the following;

(a)       the parties did not have the requisite intention to create legal relations at the time of the conversation between the Applicant and Professor White on 8 February 1999;

(b)       the agreement was void for uncertainty or incompleteness, including by reason for failing to specify the length and conditions of the probationary period of employment;

(c)        Professor White did not have authority to negotiate any agreement on behalf of the Respondent;  and/or

(d)       the agreement was subject to the parties formalising any contractual arrangement in writing.

17B      Further and in the alternative, if the Applicant and the Respondent entered into the purported 8 February 1999 Agreement, at all material times after 8 February 1999 the applicant and the Respondent in their dealings between each other conducted themselves on the basis that:

(a)       there was not in existence the purported 8 February 1999 Agreement;

(b)       the Respondent made to the Applicant a formal written letter of offer of employment, such letter indicating that:

(i)         written acceptance was required by 22 February 1999;

(ii)       the Director (Personnel) of the Respondent was the only person authorised to deal with terms and conditions of employment and any variation of the same had to be confirmed by him in writing.

(c)        The Applicant rejected the letter of offer of employment and sought to negotiate an employment agreement which included all the terms of the letter of offer save that the salary provided would not be the salary in the letter of offer but would provide for a salary at the highest level for a Level C Senior Lecturer.

17C     By reason of the matters referred to in paragraph 17B above;

(a)       the Applicant and the Respondent by their conduct have mutually agreed not to rely upon the purported 8 February 1999 Agreement or have otherwise abandoned such agreement;

(b)       the Applicant has waived any right she may have had to rely upon and/or enforce the purported 8 February 1999 Agreement;  and

(c)        the Applicant is otherwise estopped from now asserting a right to rely upon and enforce the purported 8 February 1999 Agreement.

PARTICULARS

The Respondent refers to the White affidavit, paragraphs 25 to 57.

17D     Further and in the alternative, in the event the purported 8 February 1999 Agreement came into existence and was legally enforceable (which matters are expressly denied), it was an implied term that either party may terminate the employment agreement by providing the other party with notice that they intended to bring the employment agreement to an end.

PARTICULARS

(a)       In the absence of an express provision as to notice, the law will normally imply that either party may terminate the employment agreement by providing the other with reasonable notice.

(b)       In circumstances however where the employment relationship concerning the Applicant and the Respondent would have been governed by an Award (albeit the Award not becoming a contractual term of the employment agreement), and that such Award had provisions concerning the length of notice required for termination of the agreement (the 1995 Award, clause 10(f)), there is no necessity to imply that reasonable notice must be given to the other party.

(c)        In such circumstances, either party could terminate the contractual arrangement forthwith by giving notice to the other party.

17E     The Applicant, upon receipt of the Respondent’s letter of offer of employment dated 12 February 1999, such letter of offer being inconsistent with the terms of the purported 8 February 1999 Agreement, was on notice from the Respondent that the purported 8 February 1999 Agreement was at an end.

17F     By reason of the matters above, the Applicant has no entitlement to claim loss and damage as a consequence of the Respondent exercising its contractual right under the purported 8 February 1999 Agreement to terminate such agreement.

17G     Further and in the alternative, it was an implied term of the purported 8 February 1999 Agreement that either party may terminate the agreement on reasonable notice.

PARTICULARS

The term as to reasonable notice is implied by law in the absence of any express provision in the agreement and in the absence of the employment arrangement being governed by an Award that dealt with the required notice to be given on termination.

17H     Reasonable notice in the circumstances of the Applicant’s employment with the Respondent was one week.”

10                  The proposed [17A] essentially raises questions of construction or matters of law which will have to be resolved in the light of evidence of what was said by the participants in the relevant conversations.  I except from that description the allegation that Professor White had no authority to negotiate any agreement on behalf of La Trobe.  That may raise fresh factual issues if the applicant asserts by way of reply that Professor White had ostensible authority to make the agreement which she alleges.  However, that is not a reason for refusing leave to make the amendment including the insertion of paragraph 17A(c).

11                  I have more difficulty with paragraph 17B and 17C of the draft pleading.  It is of course open to a party to plead that an alleged agreement has been rescinded or discharged by consent.  However, it is only necessary to recite that allegation and, if appropriate, give the usual particulars of the alleged rescission or discharge.  In my view the allegation in paragraph 17B that the parties “in their dealings between each other conducted themselves on the basis that” is embarrassing, and the allegations in subparagraphs (a), (b) and (c) are more in the nature of particulars.

12                  Similar considerations apply to paragraph 17C(a) of the draft pleading.  Paragraph 17C(b) is not a proper plea of waiver, and the plea of estoppel in paragraph 17C(c) should allege the representation made by the applicant and the facts said to constitute La Trobe's reliance on that representation to its detriment.  For these reasons I would not give leave to include paragraphs 17B and 17C of the draft pleading in their present form.

13                  Paragraph 17D to 17H appear to be intended to plead that if an agreement came into existence between the applicant and La Trobe, it was an implied term that such agreement was terminable upon reasonable notice by either party, and that pursuant to that term, it was terminated by La Trobe.  However, paragraph 17E does not specifically allege any such termination by notice  It is equally consistent with an offer to vary a contract which would remain on foot according to its terms unless and until varied by consent.  It is also embarrassing because the period of notice relied on is not pleaded.

14                  It emerged from the discussion which I had with Mr Bourke this morning that paragraph 17E was intended to plead that the contract, if entered into at all, was terminable summarily.  However, that does not appear with sufficient clarity, in my view, from the form the paragraph as presently pleaded.  Although paragraphs 17G and 17H plead that the alleged agreement of 8 February 1999 was terminated on reasonable notice which, in the circumstances, was one week, it is not pleaded that a week’s notice was given.  Again as I understand it from discussion with Mr Bourke, the intention underlying those paragraphs is to concede liability for damages, but limited to one week’s salary.

15                  That intention, I consider, should be made clear in any amended pleading.  In addition, particulars should be given of the circumstances relied on as making one week’s notice reasonable.  For these reasons I am not prepared to give leave to amend La Trobe's defence in the manner indicated in paragraphs 17D to 17H of the draft pleading.

16                  Paragraph 18A of the draft pleading is a further reflection of the allegation of lack of authority in Professor White to bind La Trobe.  It alleges that he lacked authority to make representations on its behalf.  Subject to the corresponding observations made about paragraph 17A(c), I would allow its insertion.

17                  Paragraphs 18B and 18C of the draft pleading are in these terms;

“18B   Further and in the alternative, if the Respondent made the alleged representations (which is expressly denied), it was implied that the alleged representations would cease to have application in the event the Applicant engaged in inappropriate behaviour or that the circumstances that led to the alleged representations being made materially changed.

18C     Subsequent to the date of the alleged representations, the applicant engaged in inappropriate behaviour and/or the circumstances that led to the making of the alleged representations materially changed.

PARTICULARS

Between 22 and 24 February, at a retreat at Beechworth conducted by the Respondent, the Applicant engaged in rude, inappropriate and unprofessional behaviour, offending and alienating many of the Respondent’s staff, further particulars of which are set out in the White affidavit, paragraphs 37 to 43.”

18                  Part of the difficulty with this part of the pleading is created by the form of paragraph 18 of the applicant's further amended consolidated statement of claim, (“the statement of claim”), which alleges;

“Alternatively, between 16 and 19 February 1999 in the course of negotiations between the Applicant and the Respondent about the annual salary to be paid by the Respondent to the Applicant, the Respondent represented to the Applicant that:

(a)       the Respondent would not refuse to employ the Applicant except in the event of a failure to agree on a rate of remuneration;

(b)       the Respondent would not refuse to employ the Applicant by reason of her failure to sign and return the letter of 12 February 1999 (“the representations”).”

19                  Then follow particulars of those representations.  That paragraph  alleges representations as to future matters within the meaning of s 51A of the Trade Practices Act 1974 (Cth),subss (1) and (2), of which provide;

“(1)     For the purpose of this Division, where a corporation makes a representation with respect to any future matter, (including the doing of, or the refusing to do, any act) and the corporation does not have reasonable grounds for making the representation, the representation shall be taken to be misleading. 

(2)       For the purposes of the application of subsection (I) in relation to a proceeding concerning a representation made by a corporation with respect to any future matter, the corporation shall,  unless it adduces evidence to the contrary, be deemed not to have had reasonable grounds for making the representation.”

20                  It may therefore be that, if it undertakes the reverse onus of proof imposed by s 51A(2), La Trobe need only plead that it had reasonable grounds for making the alleged representation as to future matters, namely the belief that the applicant was ordinarily polite, professional and inoffensive.

21                  Paragraphs 18D and 28B of the draft pleading essentially raise a plea of contributory negligence.  That is not an absolute defence to an action under s 52 of the Act, although it is clearly available in response to the cause of action in negligence pleaded in paragraphs 26 to 31 of the statement of claim.  In support of paragraph 18D, Mr Bourke for La Trobe referred to I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2000) 179 ALR 89 where the Court of Appeal of the Supreme Court of Queensland held that s 87 of the Trade Practices Act allows a court to make an order requiring a defendant to compensate a plaintiff for only part of the loss occasioned by a contravention of s 52.  Understood in the light of that case, as an invocation of the Court’s discretion, I consider that paragraph 18D should be included in the grant of leave to amend.

22                  Paragraphs 37 and 38 of the draft pleading do no more than advance interpretations of the 1995 Award for breaches of which the applicant seeks the imposition on La Trobe of penalties under the Workplace Relations Act 1996.  I do not apprehend that the applicant will suffer any detriment from being apprised of those contentions of law.  In the result, I would grant La Trobe leave further to amend its defence to conform with the draft pleading, except for the insertion of paragraphs 17B to 17H inclusive and paragraphs 18B and 18C.  If the respondent wishes to recast the pleading in the light of these reasons to overcome the objections to those paragraphs, it may do so subject to the applicant's right, if so advised, to challenge those further amendments.  The respondent must pay the applicant's costs, if any, thrown away as a result of the further amendments to the amended defence for which I shall today grant leave. 

23                  On 26 April this year, I ordered that, amongst other things, the applicant be restrained until 4.15 pm on 10 May 2002 or further order from making any application under the Freedom Of Information Act 1982 (Vic), or taking any step in connection with any such application as may now be pending.  I have heard nothing this morning to cause me to resile from the view that a restraint of that kind should be imposed while the present proceedings are pending. Indeed, the observations of Merkel J in Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 174 ALR 701, at 713, to which I have been referred by Mr Bourke, support the imposition of that restraint.  I shall therefore continue it until the hearing and determination of this application or further order.  In case there are changed circumstances which are said to make it necessary for the applicant to revive or further pursue her application under the Freedom Of Information Act, I shall reserve liberty to apply.

24                  Subject to the provision already indicated in respect of the costs thrown away as the result of the further amendment of La Trobe’s amended defence I shall order that the costs of both parties of the two motions presently before the Court be reserved.  The order disposing of those motions, including directions for the answer within twenty-one days of the interrogatories proposed by the applicant (leave to administer which was not opposed), shall be drawn up and a copy supplied as soon as practicable to the solicitors for each party.  That order will include directions for access by the parties to the documents produced on subpoena by Monash University.

Associate:

Dated:              10 May 2002