FEDERAL COURT OF AUSTRALIA
McAleer v The University of Western Australia (No 3) [2008] FCA 1490
PRACTICE AND PROCEDURE – summary judgment application – s 31A of Federal Court of Australia Act 1976 (Cth) – proper approach where summary judgment application based on question of law
JUDGMENT AND ORDERS – interpretation of previous orders
Workplace Relations Act 1996 (Cth) s 719
Federal Court of Australia Act 1976 (Cth) ss 22, 23, 31A
Medical Practitioners Act 1938 (NSW)
Teaching Services Act 1980 (NSW) s 83
Technical and Further Education Teaching Service Regulation 1981 (NSW) Pt 7
Technical and Further Education Commission (Savings and Transitional) Regulation 1993 (NSW)
McAleer v The University of Western Australia (2007) 159 IR 96
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited (2008) 167 FCR 372
Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd [2008] FCA 1257
Jackson v Sterling Industries Ltd (1986) 12 FCR 267
Jackson v Sterling Industries Limited (1987) 162 CLR 612
Walton v Gardiner (1993) 177 CLR 378
Burns v TAFE Commission of New South Wales (unreported, Supreme Court of New South Wales, Spender AJ, 15 November 1994)
Herron v McGregor (1986) 6 NSWLR 246
John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351
McClaren v Home Office [1990] ICR 824
Quickenden v O’Connor (2001) 109 FCR 243
Actew Corporation Ltd v Pangallo (2002) 127 FCR 1
Josephson v Walker (1914) 18 CLR 691
Ansett Australia Limited v Australian Licenced Aircraft Engineers’ Association [2003] FCAFC 209
Kucks v CSR Ltd (1996) 66 IR 182
Rankin v Marine Power International Pty Ltd (2001) 107 IR 117
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Skilled Engineering Ltd [2003] FCA 260
Ali v Christian Salvesen Food Services Ltd [1997] 1 All ER 721
Construction, Forestry, Mining and Energy Union v Henry Walker Eltin Contracting Pty Ltd (2001) 108 IR 409
MICHAEL McALEER v THE UNIVERSITY OF WESTERN AUSTRALIA
WAD 65 of 2008
SIOPIS J
6 october 2008
PERTH
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IN THE FEDERAL COURT OF AUSTRALIA |
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WESTERN AUSTRALIA DISTRICT REGISTRY |
WAD 65 of 2008 |
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BETWEEN: |
MICHAEL McALEER Applicant
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AND: |
THE UNIVERSITY OF WESTERN AUSTRALIA Respondent
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SIOPIS J |
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DATE OF ORDER: |
6 october 2008 |
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WHERE MADE: |
THE COURT ORDERS THAT:
1. The application dated 11 April 2008 is dismissed.
2. The question of costs is reserved to a date to be fixed.
3. The respondent is released from its undertaking not to take any further steps in furtherance of the disciplinary proceedings in respect of the applicant.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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WESTERN AUSTRALIA DISTRICT REGISTRY |
WAD 65 of 2008 |
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BETWEEN: |
MICHAEL McALEER Applicant
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AND: |
THE UNIVERSITY OF WESTERN AUSTRALIA Respondent
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JUDGE: |
SIOPIS J |
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DATE: |
6 october 2008 |
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PLACE: |
PERTH |
REASONS FOR JUDGMENT
1 The applicant is a professor in the Economics Department at The University of Western Australia. In January 2006, the University and Professor McAleer were bound by an agreement certified under the Workplace Relations Act 1996 (Cth) (the Workplace Relations Act). The certified agreement is referred to as “The University of Western Australia Academic Staff Agreement 2004” (the 2004 Agreement). Schedule D of the 2004 Agreement set out a detailed disciplinary procedure which provided for the investigation and handling of allegations of misconduct by members of the University’s staff.
2 By a letter dated 6 January 2006, the University advised Professor McAleer that a committee of the University, the Sexual Harassment Review Panel, had upheld allegations of sexual harassment against him and recommended that the University invoke the disciplinary procedures in Sch D of the 2004 Agreement.
3 The letter went on to state:
It is alleged that you have repeatedly behaved inappropriately in the workplace in breach of the University’s policy on Sexual Harassment. The allegations of serious misconduct cover the following alleged behaviours by you:
· Asking personal and intimate questions of a sexual nature
· Graphically discussing a range of sexual practices
· Suggesting to other members of staff that they wanted to or should have sex with you
· Describing your sexual preferences and practices
· Making derogatory remarks of a sexual nature about colleagues
Related to the above it is additionally alleged that you have:
· Suggested attempts to complain about behaviours would not be believed
· Suggested that continued interaction with you signalled the individual’s concerned enjoyed conversations relating to the above
· Exhibited abusive and threatening behaviours towards individuals, who it is alleged have been subjected to the above behaviours, when they wanted to avoid further exposure to the alleged behaviours.
4 In February 2006, the University established a Misconduct Investigation Committee to investigate the allegations. It comprised three members of the academic staff of the University. During March 2006, the Misconduct Investigation Committee held a number of hearings which Professor McAleer attended. There was before the Misconduct Investigation Committee an affidavit made by each of Dr Voola and Dr Le, who were members of the academic staff in the Economics Department. These affidavits described a number of incidents and conversations involving the deponents and Professor McAleer. Not all of the incidents and conversations described in the affidavits related to matters which could potentially be regarded as sexual harassment.
5 Professor McAleer requested that the University provide particulars of the allegations that were made against him and which were the subject of investigation by the Misconduct Investigation Committee. The University did not provide particulars in a form which satisfied Professor McAleer. On 17 March 2006, Professor McAleer commenced a proceeding in this Court (WAD 71 of 2006) for a declaration as to the proper construction of the 2004 Agreement and for a penalty. I granted an interim injunction enjoining the further conduct of the investigation.
6 In May 2006, a new certified agreement, which bound the University and Professor McAleer, became effective. It was called the “The University of Western Australia Academic Staff Agreement 2006” (the 2006 Agreement). Schedule D of that agreement contained a disciplinary procedure which was substantially different to that contained in Sch D of the 2004 Agreement.
7 At the trial of Professor McAleer’s application in October 2006, the University did not contest Professor McAleer’s claim that it had breached the terms of the 2004 Agreement in failing to provide proper particulars. The University also agreed to abandon the proceedings before the persons then comprising the Misconduct Investigation Committee. However, the University advised that it still intended to pursue the allegations it had made against Professor McAleer. The University contended that on the proper construction of cl 6.6 of Sch D of the 2006 Agreement it was required to pursue those allegations under Sch D of the 2006 Agreement. The University cross‑claimed for a declaration to that effect.
8 On 2 February 2007, I delivered judgment (McAleer v The University of Western Australia (2007) 159 IR 96 (McAleer (No 1)). I rejected the contention of the University. I made orders to the following effect:
THE COURT DECLARES THAT:
1. Upon the proper interpretation of cl 6.1.1 of Sch D of The University of Western Australia Academic Staff Agreement 2004 (“the 2004 certified agreement”), the respondent breached the terms of that clause in that it failed, in its letter of 6 January 2006 to the applicant, to notify the applicant of the allegations of serious misconduct made against him in sufficient detail to enable the applicant to understand the precise nature of the allegations and to properly consider and respond to them.
2. Upon the proper interpretation of cl 6.6 of Sch D of The University of Western Australia Academic Staff Agreement 2006, the allegations of serious misconduct made against the applicant by the respondent, in the respondent’s letter dated 6 January 2006 to the applicant, are required to be dealt with in accordance with the provisions of Sch D of the 2004 certified agreement.
THE COURT ORDERS THAT:
3. The respondent is to pay to the applicant, the sum of $20,000 as a penalty in respect of the respondent’s breach of cl 6.1.1 of Sch D of the 2004 certified agreement.
4. The respondent is permanently restrained from taking any further steps to pursue the allegations of serious misconduct, made against the applicant in its letter to the applicant dated 6 January 2006, before the Misconduct Investigation Committee, appointed in February 2006 and comprised of Ms Robyn Carroll, Professor Mark Bush and Dr Bruce Stone.
5. The applicant’s application is otherwise dismissed, and the respondent’s cross‑claim is dismissed.
6. The question of costs is adjourned to a date to be fixed.
Events subsequent to the making of the February 2007 orders
The two letters of 30 May 2007 from Professor Seares
9 By a letter dated 30 May 2007, the Senior Deputy Vice‑Chancellor, Professor Margaret Seares, wrote to Professor McAleer stating that she had received a written report detailing allegations of serious misconduct against him which were set out in the University’s letter dated 6 January 2006.
10 Professor Seares went on to say that in accordance with the judgment in the Federal Court proceedings (at [8] above), the allegations would be dealt with in accordance with Sch D of the 2004 Agreement. She said that it was inappropriate to resolve the allegations in accordance with cl 2.1 of Sch D of the 2004 Agreement.
11 Professor Seares also stated that pursuant to cl 3.1 of Sch D of the 2004 Agreement, she had considered the report and independently determined that the allegations warranted further investigation. She said that she had appointed Deputy Vice‑Chancellor, Professor Don Markwell as the Academic Member of the Executive to deal with the matter. Professor Seares said further that Professor Markwell would in due course consider the allegations contained in the report and determine whether the report warranted further investigation. If he did so determine, he would notify Professor McAleer to that effect in writing.
12 In addition, by a letter dated 30 May 2007, the Vice‑Chancellor, Professor Alan Robson, advised Professor McAleer that in view of the serious nature of the allegations contained in the report referred to in Professor Seares’ letter, the University had determined to suspend Professor McAleer without pay pending the determination of the investigation.
13 On 30 May 2007, Professor Seares wrote a second letter to Professor McAleer. In this letter, Professor Seares said that she had been provided with a written report detailing a number of allegations of misconduct and serious misconduct. The letter stated that Professor Seares had considered the report and determined that given the nature and seriousness of the allegations, it was inappropriate to resolve the allegations in the report in accordance with cl 2.1 of the 2006 Agreement.
14 Professor Seares went on to say that she had considered the report and independently determined that the allegations warranted further investigation. Professor Seares stated that she had appointed Professor Doug McEachern, Deputy Vice‑Chancellor, as the Academic Member of the Executive to deal with the matter. The letter went on to say that Professor McEachern would in due course consider the allegations contained in the report and determine whether the allegations warranted further investigation; and if so, he would notify Professor McAleer in writing of the allegations and require Professor McAleer to submit a written response.
15 The letter also stated that Professor McAleer’s employment was suspended without pay pending the determination of the investigation. The letter stated:
This period of suspension is to be served concurrently with the suspension with respect to other allegations of serious misconduct made against you, which are being addressed pursuant to Schedule D of The University of Western Australia Academic Staff Agreement 2004.
16 Accordingly, by the end of May 2007, the University had informed Professor McAleer that it had decided to invoke the disciplinary procedure set out in the 2004 Agreement to investigate the allegations of serious misconduct set out in the University’s letter of 6 January 2006; and to invoke the disciplinary procedure set out in the 2006 Agreement to investigate the as yet unspecified “misconduct and serious misconduct” referred to in the second letter from Professor Seares.
The 5 September 2007 letter from Professor Markwell
17 By a letter dated 5 September 2007 to the solicitors for Professor McAleer, Professor Markwell, after referring to Professor Seare’s letter of 30 May 2007, said that he had considered the allegations against Professor McAleer contained in the report and determined that “certain of the allegations, if proven, amount to serious misconduct and misconduct” within the meaning of cl 1 of Sch D of the 2004 Staff Agreement and warranted further investigation. He then set out what he referred to as “the precise nature of the allegations” which occupied 16 pages of the letter. They were set out under the following headings:
3.1 Comments and Conduct directed to members of Staff and/or Students; and
3.2 Accessing and Displaying Inappropriate Pornographic Material.
18 Under the first heading, there was described a number of incidents and conversations involving Professor McAleer and each of Dr Voola and Dr Le, whose affidavits had been before the former Misconduct Investigation Committee, and Dr Kenneth Leong, a student who had been under Professor McAleer’s supervision at the relevant times. The letter went on to say that the conduct alleged, if proven, amounted to “sexual harassment” and amounted to serious misconduct. Under the second heading, the letter described conduct which it was alleged showed that Professor McAleer wilfully and repeatedly disobeyed the University’s Information Technology Regulations and the University’s policy on use of computer facilities.
The letters of 4 December 2007 and 12 December 2007 from Professor McEachern
19 By a letter dated 4 December 2007, addressed to Professor McAleer’s solicitors, Professor McEachern referred to Professor Seares’ letter of 30 May 2007 and said that he had considered the allegations against Professor McAleer contained in the report referred to in that letter. He went on to say that he believed the allegations set out in his letter, if proven, would constitute misconduct or serious misconduct under the 2006 Agreement and warranted further investigation. Professor McEachern said that he intended to commission an investigation as provided for in cl 6.1 of Sch D of the 2006 Agreement in respect of the allegations.
20 Professor McEachern went on to say that the person conducting the investigation which he intended to commission would be required to consider the most appropriate means of conducting the investigation into the allegations, and would be required to hear from the University and Professor McAleer in that regard.
21 Professor McEachern said that the investigation would be required to investigate the allegations to determine whether there was proven conduct which constituted serious misconduct of the following nature:
(a) a serious impediment to the carrying out of an employee’s duties or to an academic’s colleagues carrying out their duties; or
(b) serious dereliction of the duties required of the academic office.
22 This letter also stated that it would be necessary for the investigation to determine whether the conduct, if proven, was in breach of Professor McAleer’s contract of employment.
23 The letter identified four categories of allegations which were to be investigated. These were:
1.1 Comments and conduct directed to members of staff and/or students
1.2 Authorship and academic fraud
1.3 Accessing inappropriate material on the University computer network
1.4 University property and potential claims for expenses.
24 In respect of each of the categories, the letter described a number of incidents and conversations. The letter runs to 25 pages and is detailed. I set out below a general description of the allegations made in respect of each of the categories.
25 In respect of the first category, the letter describes a considerable number of incidents involving Professor McAleer and members of the academic staff and students including, but not limited to, Dr Voola, Dr Leong and Dr Le, in which Professor McAleer is alleged to have made insulting and derogatory comments about other members of the academic staff, and to have subjected members of the academic staff and students to overbearing conduct.
26 In relation to the second category, the letter refers to allegations that Professor McAleer subjected a PhD student to pressure to describe Professor McAleer as a co‑author of a paper which was solely authored and researched by the PhD student; and that Professor McAleer had on other occasions acted improperly in describing himself as a co‑author of work which was undertaken by a PhD student who he was supervising.
27 The third category contains allegations that Professor McAleer accessed websites in breach of the University’s Information Technology Policy. The fourth category contains allegations that Professor McAleer claimed expenses in relation to trips he had undertaken, which he had not incurred.
28 By a letter dated 12 December 2007, Professor McEachern advised Professor McAleer’s solicitors that he had appointed Mr Richard Hooker, a barrister, as the investigator to investigate the matters referred to in his letter of 4 December 2007.
29 There is a distinction evident between the nature of the allegations referred to in each of the University’s letters of 5 September 2007 and 4 December 2007 respectively. The former refers to allegations of language and actions capable of founding claims of sexual harassment, whereas the allegations set out in the latter relate to alleged misconduct of a different nature.
Professor McAleer's solicitors’ letter of 27 February 2008
30 By a letter dated 27 February 2008, the solicitors for Professor McAleer wrote to the University contending that the University was precluded from pursuing the allegations made in the 4 December 2007 letter because the pursuit of those allegations under Sch D of the 2006 Agreement, was contrary to the declaration which I had made on 2 February 2007 as to the proper interpretation of cl 6.6 of Sch D of the 2006 Agreement. Accordingly, so it was contended, if the University intended to pursue those allegations, it was required to pursue them pursuant to the disciplinary procedure described in Sch D of the 2004 Agreement.
31 Further the letter from Professor McAleer’s solicitors stated:
[T]he University’s commencement and conduct of disciplinary proceedings against our client under both the 2004 Agreement and the 2006 Agreement has been so oppressive and unjust as to be an abuse of process.
32 The letter went on to say that there were a number of factors which made the pursuit by the University of the disciplinary charges against Professor McAleer oppressive and an abuse of process. These were the delay by the University in the prosecution of the disciplinary proceedings, the failure of the University to raise with Professor McAleer the matters now raised at the time that the incidents occurred and the refusal of the University adequately to frame or particularise the disciplinary charges in the previous disciplinary proceedings and the current disciplinary proceedings.
33 Professor McAleer’s solicitors required the University to give an undertaking that it would not pursue the disciplinary proceedings referred to in the letters of 5 September 2007 and 4 December 2007. The University declined to give that undertaking.
The commencement of this proceeding
34 On 11 April 2008, Professor McAleer commenced this proceeding. By way of a further amended application, Professor McAleer claims the following relief:
1. A declaration that:
1.1 upon the proper interpretation of the judgment, declarations and orders made by Siopis J in McAleer v The University of Western Australia (2007) 159 IR 96 clause 6.6 of Schedule D of The University of Western Australia Academic Staff Agreement 2006 requires the allegations the subject of the disciplinary proceedings commenced by the respondent against the applicant on 6 January 2006 under Schedule D of The University of Western Australia Academic Staff Agreement 2004 to be dealt with in accordance with the provisions of Schedule D of The University of Western Australia Academic Staff Agreement 2004; and
1.2 upon a proper interpretation of Clause 6.6.1 of Schedule D of The University of Western Australia Academic Staff Agreement 2006 the allegations set out below against the applicant, contained in the letter from the respondent to the applicant’s solicitors dated 4 December 2007, do not constitute matters the subject of disciplinary proceedings under The University of Western Australia Staff Agreement 2006. Those allegations are:
1. in relation to Dr Voola paragraphs 1.1.1(b) to (q) at pages 3 to 12 inclusive;
2. in relation to Dr Leong paragraphs 1.1.2(b) to (i) at pages 12 to 16 inclusive;
3. in relation to Dr Le paragraphs 1.1.3(b) to (e) at pages 16 and 17;
4. of authorship and academic fraud at paragraph 1.2(d) at pages 22 and 23 inclusive;
5. of accessing inappropriate material on the university computer network at paragraph 1.3(b) at page 23.
2. An order that:
(a) The respondent, its servants and agents, be permanently restrained from proceeding with investigation and prosecution of the applicant under Schedule D of The University of Western Australia Academic Staff Agreement 2006 in relation to the allegations set out at 1.2(a) to (e) above.
(b) The respondent is permanently restrained from taking any further steps to pursue the allegations of misconduct and serious misconduct made against the applicant in the respondent’s letter to the solicitors for the applicant dated 4 December 2007 by the Academic Member of Executive, Professor Doug McEachern.
(c) The respondent pays a penalty to the applicant under section 719 of the Workplace Relations Act 1996.
(d) The disciplinary proceedings brought by the respondent against the applicant commenced pursuant to Schedule D of The University of Western Australia Academic Staff Agreement 2004, contained in the letter from the respondent to the applicant’s solicitors dated 5 September 2007, be stayed permanently.
(e) The disciplinary proceedings brought by the respondent against the applicant commenced pursuant to Schedule D of The University of Western Australia Academic Staff Agreement 2006, contained in the letter from the respondent to the applicant’s solicitors dated 4 December 2007, be stayed permanently.
(f) The respondent is permanently restrained from proceeding with investigation and prosecution of the applicant under Schedule D of The University of Western Australia Academic Staff Agreement 2004 and Schedule D of The University of Western Australia Academic Staff Agreement 2006 in relation to allegations which the respondent knew about and condoned.
(g) The respondent pays the applicant’s costs.
(h) Such further or other orders as the Court thinks fit.
35 The University brought a notice of motion for the dismissal of the application in reliance upon s 31A of the Federal Court of Australia Act 1976 (Cth) (the Act) and O 20 r 5 of the Federal Court Rules. The University raised a number of points of law which, it says, are fatal to the success of Professor McAleer’s claim. It contends that Professor McAleer’s claim should be dismissed at this stage without the parties having to go to trial. It is this motion which I now consider.
Summary judgment – the proper approach
36 Professor McAleer contended that the principles to be applied in determining the University’s application for summary judgment are those set out in the following observations of Rares J in the case of Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 at 731, at [44]‑[45]:
In a case to which s 31A applies, where there is a real issue of fact to be decided in the sense identified in the above principle, and, possibly, where there is a real issue of law of a similar kind, it is obviously appropriate that the matter goes to trial. And, one must be mindful that in Hocking [v Bell] (1945) [71 CLR 430] at 487, Dixon J said that, in effect, every judge who had heard the matter (through four trials, two Full Court appeals and, to that point, the appeal to the High Court) would have formed the view that the plaintiff should have failed had they been able to decide the facts, yet the Privy Council restored the second jury verdict in her favour and so concluded the litigation. This raises a very real question, as to what reasonable prospects are for present purposes.
I am of opinion that in assessing what reasonable prospects of success are for the purposes of s 31A, the court must be very cautious not to do a party an injustice by summarily dismissing the proceedings where, in accordance with the principles in Hocking [v Bell] (1947) [75 CLR 125], contested evidence might reasonably be believed one way or the other so as to enable one side or the other to succeed. As soon as the evidence may have such an ambivalent character prior to a final determination, I am of opinion that then, as a matter of law, at that point there are reasonable prospects of success within the meaning of s 31A. Unless only one conclusion can be said to be reasonable, the moving party will not have discharged its onus to enliven the discretion to authorise a summary termination of the proceedings which s 31A envisages.
37 The gravamen of these observations is premised on there being disputed questions of fact at the summary judgment stage. Rares J only makes a passing and tentative reference to disputes of law. In my view, these observations are not apposite to the University’s application which is founded purely on questions of law.
38 There are observations in other cases as to the proper approach to applications made under s 31A of the Act on disputed questions of law, which are more appropriate to the disposition of the University’s application. In Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited (2008) 167 FCR 372, Finkelstein J observed at 382, at [23]:
On questions of law, the judge should conduct an inquiry into their merit, not for the purpose of resolving them (though this can be done ‑ see Rosser v Austral Wine and Spirit Co Pty Ltd [1980] VR 313, 320) and also not simply to determine whether the argument is hopeless, but in order to decide whether it is sufficiently strong to warrant a trial. If the judge is satisfied that he (or she) is able to resolve any contested legal issue at a summary hearing and without undue delay, it may be better all around if that be done. If not, then at least the merits must be tested. That will then give s 31A a substantial operation, which is what, it seems to me, was intended.
39 More recently, in the case of Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd [2008] FCA 1257 (Bradken), Emmett J made observations to similar effect. At [28] he said:
Bradken’s application to strike out paragraphs of the Defence is based on s 31A of the Federal Court of Australia Act 1976 (Cth). Section 31A requires the Court to consider the question of whether there is a real issue of law or fact to be decided. The Court must conduct an enquiry into the merits of the issues of law. While the enquiry should not necessarily be for the purpose of resolving the legal questions, that can be done. The object is not simply to determine whether the argument is hopeless, but whether the argument is sufficiently strong to warrant the matter going to trial. If the Court can resolve contested legal issues at a summary hearing, without undue delay, it may be preferable to do so in the interests of saving costs and time. Where there is a real issue of law, the Court can hear and decide it without the need for a trial or evidence. Once the issues of law are resolved, it may be clear, one way or the other whether the matter should be allowed to go to trial (see Jefferson Ford Pty Ltd v Ford Motor Company Australia Limited [2008] FCAFC 60 at [23] and [131]).
40 I have had the benefit of full argument on the points of law in issue. There are no disputed questions of fact raised by the University’s application. I am in no worse a position to determine those points of law than I would be at the end of a trial. I, accordingly, intend to apply the observations of Emmett J in Bradken to the resolution of the issues in this case.
The issues
41 The University’s application for summary judgement gave rise to the question of whether Professor McAleer has a reasonable prospect of succeeding at trial in respect of the following matters.
42 First, whether on the proper construction of the Court’s orders of 2 February 2007, the University is precluded from pursuing the allegations in the letter of 4 December 2007 under Sch D of the 2006 Agreement. I interpose to say that at the hearing, the parties accepted that it would be appropriate for me to decide this matter finally.
43 Secondly, whether the Court would grant a permanent stay of the disciplinary proceedings on the basis that the pursuit of the proceedings is an abuse of process.
44 Thirdly, whether the Court would grant a permanent injunction restraining the University from pursuing the disciplinary proceedings on the grounds that the University has engaged in an anticipatory breach of contact by including among the allegations to be investigated in the disciplinary proceedings, conduct which it has condoned.
45 Fourthly, whether the Court would impose a penalty under s 719 of the Workplace Relations Act in respect of alleged breaches by the University of the 2004 Agreement and the 2006 Agreement.
The proper interpretation of the orders of 2 February 2007
46 Professor McAleer contended that the meaning of declaration number 2 that I made on 2 February 2007, was ambiguous. This was because, when the declaration was considered by reference to parts of the judgment, it was unclear whether the ambit of the allegations that had to be dealt with under the 2004 Agreement were confined to the allegations in the University’s letter of 6 January 2006, or were to include all the matters deposed to in each of the affidavits of Dr Voola and Dr Le. As I have said previously, not all the events and incidents described in the affidavits related to the matters that could potentially be regarded as going to the sexual harassment allegations referred to in the letter of 6 January 2006.
47 The University contended that there was no ambiguity in the order and the judgment and that the effect of the declaration was that the ambit of the allegations to be pursued under the 2004 Agreement was confined to allegations referred to in the letter of 6 January 2006, namely, the allegations which related to sexual harassment.
48 Paragraphs 81‑83 of the judgment in McAleer (No 1) are relevant and are set out below:
[81] Accordingly, in my view, the actions which occurred on and after 6 January 2006 in furtherance of the allegations in the University’s letter of 6 January 2006, are “disciplinary proceedings”, within the meaning of cl 6.6.1 of the 2006 certified agreement. The disciplinary proceedings commenced on 6 January 2006; well prior to the lodgement date of the 2006 certified agreement of 26 May 2006. The consequence is that, any further pursuit by the University of the allegations, the subject of the “disciplinary proceedings”, is to be dealt with under Sch D of the 2004 certified agreement.
[82] As to the ambit of the matters which were the subject of the disciplinary proceedings taken under the 2004 certified agreement, in my view, these are comprised by the allegations of misconduct which are referred to in the letter of the Vice Chancellor to the applicant on 6 January 2006. The evidence, derived from the University’s letter of 2 March 2006, referred to at [39] above, is that the University’s case is “largely” based on the affidavits of the two deponents. I find, therefore, that the ambit of the disciplinary proceedings is comprised by the allegations contained in the letter of 6 January 2006, which include, but are not confined to, the facts and circumstances referred to in affidavits of the two deponents.
[83] I will, therefore, not make the declaration sought by the University in its counterclaim. Instead, I will make a declaration that the allegations of serious misconduct made against the applicant as set out in the University’s letter of 6 January 2006, are to be dealt with in accordance with the provisions of Sch D of the 2004 certified agreement. In my view, there is no need to grant an injunction sought by the applicant, precluding the University from dealing with the allegations of misconduct, the subject of the disciplinary proceedings, other than by reference to Sch D of the 2004 certified agreement, as there is no suggestion that the University would not give effect to the terms of the declaration made by the Court.
49 Paragraph 39 of the judgment stated:
The letter went on to state:
Deponents
The University’s case largely rests on the evidence elicited in the affidavits of the two deponents.
Both deponents have been distressed by the whole issue. Dr Le has made it clear that she does not wish to be interviewed.
Dr Voola is currently overseas and not due to return until 13 March 2006.
It would be my suggestion that if the Committee has any questions that arise, that the Committee’s questions be posed and further affidavits provided.
50 The declaration that I made was in the following terms.
Upon the proper interpretation of cl 6.6 of Sch D of The University of Western Australia Academic Staff Agreement 2006, the allegations of serious misconduct made against the applicant by the respondent, in the respondent’s letter dated 6 January 2006 to the applicant, are required to be dealt with in accordance with the provisions of Sch D of the 2004 certified agreement.
51 Professor McAleer contends that the ambiguity in the construction of the declaration arises from the following sentences in [82] of the judgment:
The evidence, derived from the University’s letter of 2 March 2006, referred to at [39] above, is that the University’s case is “largely” based on the affidavits of the two deponents. I find, therefore, that the ambit of the disciplinary proceedings is comprised by the allegations contained in the letter of 6 January 2006, which include, but are not confined to, the facts and circumstances referred to in affidavits of the two deponents.
52 Professor McAleer says that he understands that the declaration was intended to be read subject to [82] of the judgment so that the ambit of the disciplinary proceedings to be dealt with under the 2004 Agreement, was to include all of the facts and circumstances set out in the affidavits of the two deponents, notwithstanding that those facts and circumstances went beyond the allegations contained in the eight dot points in the 6 January 2006 letter.
53 Professor McAleer also contends that in the letter of 2 March 2006, the University referred to certain of the paragraphs in the affidavits of Dr Voola and Dr Le in support of the allegations in the letter of 6 January 2006 which it now refers to in the support of allegations raised in its letter of 4 December 2007. That may be so. However, my only reason for referring to the 2 March 2006 letter of the University, was that that letter contained the statement that the University’s case rested “largely” on the content of the affidavits of the two deponents, Dr Voola and Dr Le (see [39] of McAleer (No 1)). I took that to mean that the University may also wish to bring other evidence to support its allegations in the letter of 6 January 2006. It was in that context that I said that the ambit of the disciplinary proceedings was to “include but not be confined to the facts and circumstances referred to in the affidavits of the deponents”. Although my language was imprecise, I intended to convey that the University would not be confined to the facts and circumstances deposed to by the two deponents in supporting the allegations made in the letter of 6 January 2006. In other words, the effect of what I intended to declare, was that the University would be required to use the procedure in Sch D of the 2004 Agreement to pursue the allegations made in the letter of 6 January 2006, but could rely upon evidence to support its allegations in addition to the evidence comprised by the affidavits of Dr Voola and Dr Le. I did not, thereby, intend to amplify the scope of the disciplinary proceedings to be dealt with under the 2004 Agreement beyond the allegations set out in the eight dot points in the letter of 6 January 2006.
54 It follows, that the manner in which the University has interpreted the declaration and reasons is the manner in which I intended that they be interpreted.
55 In his further amended particulars Professor McAleer has stated that the relief sought in para 2(a) and para 2(b) of his application is to complement the declarations sought in para 1 of the application. Therefore, the relief sought in para 2(a) and para 2(b) is founded upon the assumption that Professor McAleer’s contention in respect of the proper construction of my order, was accepted. The same is true in respect of Professor McAleer’s claim for the penalty in para 2(c) of his application on the grounds particularised at para 13(b) of his further amended particulars.
56 In light of my finding set out above, it follows that I dismiss Professor McAleer’s claims for the declarations in para 1.1 and para 1.2 of his application, his claims for the orders set out in para 2(a) and para 2(b) of his application and his claim for a penalty based on the breach of the 2006 Agreement alleged at para 13(b) of the further amended particulars.
Abuse of process
57 In para 2(d) and para 2(e) of his application, Professor McAleer claims a permanent stay of the disciplinary proceedings on the grounds that in bringing the proceedings based on the allegations in the letters, the University was engaged in an abuse of process.
58 In support of this contention, Professor McAleer said that some of the allegations in the letters of 5 September 2007 and 4 December 2007 related to events which went back to 1992. Further, Professor McAleer said that the University has known about the allegations for a long time and had delayed in bringing and progressing disciplinary proceedings. Also it was said that the University had failed to provide Professor McAleer with sufficient information. It was also said that in suspending Professor McAleer without pay, the University has acted harshly and interfered with his work and damaged his career prospects. In short, it was said the commencement and conduct of the disciplinary proceedings has been so oppressive, unfair and vexatious as to amount to an abuse of process.
59 The University contends that para 2(d) and para 2(e) of Professor McAleer’s application should be summarily dismissed on the basis that there is no power in this Court to grant the relief claimed.
60 Professor McAleer contended that it is open to this Court to grant relief by way of a permanent stay of the disciplinary proceedings. Professor McAleer said that the power to grant a stay of disciplinary proceedings was founded upon the “inherent jurisdiction” of a superior court. As to the power of the Federal Court to grant a permanent stay, Professor McAleer relied upon the following observations of Bowen CJ in Jackson v Sterling Industries Ltd (1986) 12 FCR 267, which were approved by Deane J in Jackson v Sterling Industries Limited (1987) 162 CLR 612 at 623‑624:
In relation to a statutory court such as the Federal Court it is wise to avoid the use of words “inherent jurisdiction”. Nevertheless a statutory court which is expressly given certain jurisdiction and powers must exercise that jurisdiction and those powers. In doing so it must be taken to be given by implication whatever jurisdiction or powers may be necessary for the exercise of those expressly conferred. The implied power for example to prevent abuse of its process, is similar to, if not identical with, inherent power.
61 Professor McAleer also relied upon s 22 and s 23 of the Act and the accrued jurisdiction of the Court.
62 Professor McAleer referred particularly to the cases of Walton v Gardiner (1993) 177 CLR 378 (Walton) and Burns v TAFE Commission of New South Wales (unreported, Supreme Court of New South Wales, Spender AJ, 15 November 1994) (Burns) as examples of cases where the Court had permanently stayed disciplinary proceedings on the grounds of an abuse of process. In Walton, the New South Wales Supreme Court granted a permanent stay of disciplinary proceedings brought against a medical practitioner in the Medical Tribunal which was established under the Medical Practitioners Act 1938 (NSW). In Burns,Spender AJ in the New South Wales Supreme Court granted a permanent stay of a number of disciplinary charges brought by the TAFE Commission against a Senior Head Teacher at the Hunter Institute of Technology.
63 The Walton case went to the High Court. The High Court refused to allow the appellant to reopen a finding of the Court of Appeal of New South Wales in Herron v McGregor (1986) 6 NSWLR 246 (Herron) that the New South Wales Supreme Court had jurisdiction to stay disciplinary proceedings before the Medical Tribunal. Herron was also a case involving disciplinary proceedings before the Medical Tribunal. In Walton, Mason CJ, Deane and Dawson JJ said at 391‑392:
…the appeal must be disposed of on the basis that it is now settled that the Court of Appeal’s supervisory jurisdiction with respect to “the administration of justice in New South Wales” extends, in the absence of legislative intervention, to the making of an order staying proceedings in the Tribunal on the grounds that they constitute an abuse of the Tribunal’s process.
64 It is necessary, therefore, to examine the reasoning in Herron to understand more about the jurisdiction of a superior court to stay disciplinary proceedings of a non‑curial body on the grounds of abuse of process. At 250, McHugh JA said:
The jurisdiction of a court includes every power necessary to enable it to act effectively within the jurisdiction conferred on it by statute or charter: Connelly v Director of Public Prosecutions [1964] AC 1254 at 1301; John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465. The jurisdiction of this Court extends to the supervision and protection of proceedings in inferior courts and tribunals: John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 363.
65 In John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 (McRae) the issue was whether the New South Wales Supreme Court had power to deal summarily with a contempt of an inferior court. At 363, the joint judgment of Dixon CJ, Fullagar, Kitto and Taylor JJ referred to the case of R v Davies [1906] 1 KB 32 and continued:
[T]he position reached in R v Davies was reached only after a close and careful examination of the question and of the somewhat inconclusive authorities which might be thought to bear upon it. Nor, as we think, is there anything unreal in the connection asserted in R v Davies between a jurisdiction to issue prohibition or certiorari to inferior courts and a jurisdiction to punish for contempts of inferior courts. If, indeed, it is put, as Griffith CJ put it, as a connection between a power to correct and a duty to protect, then it is true that the connection is not obvious. But, although the jurisdiction is “protective” in a sense, it has been said again and again that the court punishes contempts not in order to protect courts or judges or juries but in order to safeguard and uphold the rights of suitors and ensure that justice be done. So regarded, the power to punish for contempt of inferior courts and the power to issue mandamus or certiorari to inferior courts are seen as in truth but different aspects of the same function – the traditional general supervisory function of the King’s Bench, the function of seeing that justice was administered and not impeded in lower tribunals. (Footnote omitted; Original emphasis.)
66 McHugh JA in Herron went on to observe at 252:
In my opinion, the supervisory power of this Court extends to preventing an abuse of the procedure of the medical disciplinary tribunal.
67 It follows that McHugh JA found that the source of the court’s power to intervene to prevent an abuse of process of the Medical Tribunal was based upon the supervisory jurisdiction of the court, which was identified in McRae as consisting in the power to exercise judicial review.
68 In the case of McClaren v Home Office [1990] ICR 824, the Court of Appeal considered the question of when judicial review in relation to disciplinary proceedings may be available in an employment context. At 836, Woolf LJ observed:
There can however be situations where an employee of a public body can seek judicial review and obtain a remedy which would not be available to an employee in the private sector. This will arise where there exists some disciplinary or other body established under the prerogative or by statute to which the employer or the employee is entitled or required to refer disputes affecting their relationship. The procedure of judicial review can then be appropriate because it has always been part of the role of the court in public law proceedings to supervise inferior tribunals and the court in reviewing disciplinary proceedings is performing a similar role. As long as the “tribunal” or other body has a sufficient public law element, which it almost invariably will have if the employer is the Crown, and it is not domestic or wholly informal, its proceedings and determination can be an appropriate subject for judicial review.
69 In my view, the cases of Walton, Herron and Burns relied upon by Professor McAleer, were each cases where there was a “sufficient public law element” to attract the supervisory jurisdiction of the court and the attendant judicial review remedies.
70 In Walton and Herron the disciplinary proceedings were brought before a Medical Tribunal which was a statutory inferior tribunal established under a New South Wales statute. Accordingly, as McHugh JA said, the New South Wales Supreme Court had, as an incident of its supervisory jurisdiction, the power to protect the processes of this statutory tribunal from abuse.
71 In Burns, the public law element is to be found in the fact that disciplinary offences with which Mr Burns was charged were defined by s 83 of the Teaching Services Act 1980 (NSW)and it was common ground that the regulations in Pt 7 of the Technical and Further Education Teaching Service Regulation 1981 (NSW) applied to Mr Burns. Further, the Technical and Further Education Commission (Savings and Transitional) Regulation 1993 (NSW) identified the persons who were to deal with the breaches of discipline of the nature alleged against Mr Burns.
72 The question is whether there is a sufficient public law element in relation to the disciplinary proceedings commenced by the University under each of the 2004 Agreement and the 2006 Agreement, such as would empower this Court to intervene by way of judicial review.
73 Professor McAleer relied upon the case of Quickenden v O’Connor (2001) 109 FCR 243 (Quickenden) in support of his submission that there was a sufficient “public law element” in this case. In Quickenden, Black CJ and French J observed at 265, that the certified agreement in that case, “created rights and obligations which were statutory in character and could operate in addition to the rights and obligations under his contract and, where inconsistent, no doubt displace them”.
74 In my view, however, the “statutory character” of a certified agreement does not contain a “sufficient public law element” such as would render decisions made, or actions taken, under those agreements subject to judicial review and the supervisory jurisdiction of this Court.
75 First, it is the Workplace Relations Act which provides the statutory character to terms of an agreement which has been privately agreed by the parties to the certified agreement. In so doing, the Act defines and limits the relief available in respect of the agreement. In Actew Corporation Ltd v Pangallo (2002) 127 FCR 1 (Actew), the Full Court upheld the principle in Josephson v Walker (1914) 18 CLR 691 that the statute which creates the right also regulates the means by which it is to be enforced. The Workplace Relations Act does not contemplate relief in the nature of judicial review in respect of decisions made, or acts undertaken, by an employer or indeed any person, bound by the terms of the certified agreement.
76 Secondly, a certified agreement has its origin in terms agreed between private parties in an industrial context. It is then registered under the certification process provided by the Workplace Relations Act. Once registered the certified agreement attracts the operation of the statutory regime. Whitlam and Gyles JJ at 18, at [33] in Actew, eschewed the consensual origin of a certified agreement as being relevant to the question of whether private law remedies could operate in relation to a breach of the terms of a certified agreement. However, the Full Court has recognised that the private consensual origin of a certified agreement is a material consideration in another aspect of the law relating to certified agreements. Thus, in the case of Ansett Australia Limited v Australian Licenced Aircraft Engineers’ Association [2003] FCAFC 209 at [8], the Full Court approved the following observations of Madgwick J in Kucks v CSR Ltd (1996) 66 IR 182 at 184, as expressing the proper approach to the interpretation of certified agreements:
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon.
77 In my view, the private consensual origin of a certified agreement is also a relevant consideration in determining whether there is a sufficient public law element in relation to certified agreements to attract the availability of judicial review remedies. The consideration is relevant because, by contrast with the private consensual origin of a certified agreement, the disciplinary offences and the terms of the disciplinary code in the Burns case had their sole origin in, and were solely the product of, the public legislative process.
78 Accordingly, I reject Professor McAleer’s contention that this Court has a supervisory power in respect of decisions made or actions taken under a certified agreement. It follows that I also reject his contention that the Court has power to grant a permanent stay of the disciplinary proceedings in this case. I, therefore, dismiss Professor McAleer’s claim in para 2(d) and para 2(e) of the application.
Condonation ‑ anticipatory breach
79 In support of the relief claimed in para 2(f) of his application, Professor McAleer contended that the institution and continuance of the investigations pursuant to the disciplinary procedures by the University which include an investigation into allegations which the University condoned, constitutes an anticipatory breach of contract. In the amended particulars of the application, Professor McAleer has described the anticipatory breach as comprising “conducting disciplinary proceedings which may lead to dismissal in relation to misconduct which [the University] has condoned”.
80 The relief sought is a permanent injunction restraining the University from “proceeding with investigation and prosecution” of Professor McAleer “in relation to allegations which the respondent knew about and condoned”.
81 In my view, there is no reasonable prospect of success for this cause of action.
82 First, Professor McAleer has not specifically identified the term or terms of the contract of employment in respect of which there has been an anticipatory breach.
83 Secondly, in support of this claim Professor McAleer referred to the case of Rankin v Marine Power International Pty Ltd (2001) 107 IR 117. In that case, Gillard J recognised that condonation by an employer of serious misconduct could amount to the waiver by the employer of the right to summarily dismiss the employee on the basis of the condoned conduct. In my view, that is the proper context in which the question of condonation or waiver is to be considered. In this case, there is a distinction made in Sch D of both agreements between the investigatory phase and the phase when disciplinary action may be taken on the basis of the findings made in the investigatory phase. At this stage the University has gone no further than to attempt to initiate the investigatory phase. It will be open to Professor McAleer during the investigatory phase and the disciplinary phase to raise any issues of condonation. However, the fact that the disciplinary proceedings are at such a preliminary stage means that there is no reasonable prospect of Professor McAleer obtaining a permanent injunction, even if his application for such a quia timet injunction was made on a wider basis than anticipatory breach of contract, because the internal processes of the disciplinary procedures in each of the agreements have not been exhausted and there is, accordingly, no imminent threat that he will be dismissed or disciplined on the basis of conduct that was condoned.
The claim for a penalty
84 In the orders sought in para 2(c) of the application, Professor McAleer claims a penalty under s 719 of the Workplace Relations Act in respect of breaches of the agreements.
85 Professor McAleer claims that the University has breached both express and implied terms of the 2004 and 2006 Agreements.
Express terms
86 I deal first with the allegations that the University has breached certain express terms of the 2004 and 2006 Agreements.
Failure to provide particulars
87 Professor McAleer alleges that the University breached cl 6.1.1 of Sch D of the 2004 Agreement in that, in relation to the allegations made in its letter of 5 September 2007, the University has failed to set out in sufficient detail the precise nature of the allegations made against him, so as to allow him to properly consider and respond to them.
88 In my view, there is no reasonable prospect of Professor McAleer succeeding on this claim at trial. The evidence shows that after the University sent Professor McAleer the letter of 5 September 2007 there was correspondence between the solicitors for Professor McAleer and the University. Professor McAleer’s solicitors complained in that correspondence that there were inadequacies in the particularity of the allegations and the University responded to the complaints.
89 In its 16 page letter of 5 September 2007, the University has set out in detail the factual allegations which are made against Professor McAleer. The University has also stated that the conduct, if proven, could comprise serious misconduct under the 2004 Agreement on the basis that it could constitute a serious impediment to the carrying out of an employee’s duties, or to an academic’s colleagues carrying out their duties, or serious dereliction of duties required of the academic office. The University has also advised Professor McAleer that the conduct could also comprise a breach of Professor McAleer’s implied common law duties which the University has identified with specificity. Further, the University has linked each of the factual allegations with the breach of duty, and/or instance of serious misconduct, which it alleges could be found against Professor McAleer. Further, insofar as the University has alleged that Professor McAleer’s conduct breached a University policy, the University has identified the policy.
90 In my view, the level of detail which has been provided to Professor McAleer is more than adequate to permit him to make the response which is contemplated under cl 6.1.1 of Sch D of the 2004 Agreement. There is no reasonable prospect of Professor McAleer succeeding on this claim at trial. I, accordingly, dismiss this claim.
Failure to consult
91 Professor McAleer also alleged that the University breached cl 43.1 of the 2004 Agreement and cl 41.1 of the 2006 Agreement by failing to raise issues of concern with Professor McAleer at an early stage. It is also alleged that the University breached cl 43.5 of the 2004 Agreement and cl 41.5 of the 2006 Agreement by failing to give Professor McAleer the right to respond to concerns raised at the time they were raised so that they could be resolved amicably and swiftly.
92 The relevant provisions in cl 43 of the 2004 Agreement are as follows:
43.1 The parties are agreed that any issues of concern should be raised with the employee at an early stage and appropriate support provided to enable employees to achieve their full potential.
43.2 Issues of job performance or standards of behaviour or conduct should be raised informally in the first instance with a view to reaching an amicable resolution.
…
43.5 The employee must be given the right to respond to any concerns raised. The objective at this stage is to resolve the matter amicably and swiftly.
43.6 These discussions cannot be relied upon to initiate procedures or used in any proceedings under the Unsatisfactory Performance, Misconduct or Serious Misconduct provisions contained in Schedules C – Unsatisfactory Performance and/or D – Misconduct of this Agreement.
43.7 Serious concerns shall be dealt with in accordance with Schedules C – Unsatisfactory Performance and/or D – Misconduct of this Agreement.
43.8 Nothing in this clause shall prevent the employer taking action under Schedules C – Unsatisfactory Performance and/or D – Misconduct of this Agreement in respect of unsatisfactory performance or misconduct.
93 The terms of the relevant provisions of cl 41 of the 2006 Agreement are to like effect.
94 Clause 2 of Sch D, dealing with Misconduct in each of the 2004 and 2006 Agreements, is to the following effect:
2. Process for Dealing With Misconduct/Serious Misconduct
2.1 Disciplinary action should normally be used as a last resort. An allegation(s) of misconduct should, where practical and reasonable, be resolved by the academic supervisor through guidance, counselling, conciliation, or other appropriate action that may include staff development.
2.2 Where it is not appropriate for an allegation of misconduct to be resolved in accordance with subclause 2.1 or where an allegation has not been resolved in accordance with subclause 2.1 then a report of the allegation shall be made to the Deputy Vice‑Chancellor. The report shall provide information about the nature and details of the misconduct allegation(s), and what steps were taken to resolve the issue, if any.
95 In my view, the provisions of cl 43.1 and cl 43.5 of the 2004 Agreement have no application to the nature of the allegations which have been made against Professor McAleer. This is because cl 43.7 provides that “serious concerns” are to be dealt with in accordance with, relevantly, Sch D which relates to misconduct. The nature of the allegations which have been made against Professor McAleer comprise, in my view, “serious concerns”. Accordingly, it is cl 2 of Sch D, and not cl 43, which applies as the process for any early resolution of these misconduct issues. However, cl 2.2 of Sch D recognises that it would be inappropriate in some cases to seek to invoke early resolution as a means of dealing with the alleged misconduct. In her letter of 30 May 2007, Professor Seares invoked cl 2.2 and advised Professor McAleer that it was not appropriate that the allegations be resolved by reference to cl 2.1 of Sch D of the 2004 Agreement.
96 The same considerations apply mutatis mutandis in relation to Professor McAleer’s contentions in respect of breaches of cl 41.1 and cl 41.5 of the 2006 Agreement.
97 Accordingly, Professor McAleer’s application for a penalty on the grounds of alleged failure to comply with cl 43.1 and cl 43.5 of the 2004 Agreement and cl 41.1 and cl 41.5 of the 2006 Agreement is dismissed.
Implied terms
98 Professor McAleer alleged that the University had breached a number of alleged implied terms of the 2004 and 2006 Agreements.
99 First, it was said that there was an implied term in Sch D of the 2004 and 2006 Agreements that the disciplinary proceedings must be conducted within a reasonable time. The University, it was contended, had breached this term by not commencing the disciplinary proceedings within a reasonable time.
100 Further, it was said that there was an implied term that the University would deal with the serious concerns referred to in cl 43.5 and cl 41.5 in accordance with Sch D of the respective agreements within a reasonable time of the University becoming aware of the serious concerns. It was alleged that the University had failed to do so.
101 It is also alleged that there was an implied term of the 2004 and 2006 Agreements that the University was obliged to pay Professor McAleer’s accrued leave entitlements within a reasonable time in accordance with cl 5.1.2 of Sch D of the 2004 and 2006 Agreements, when he was suspended without pay.
102 Professor McAleer relied upon the case of Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Skilled Engineering Ltd [2003] FCA 260 (Skilled Engineering) in support of his contention that a term may be implied into a certified agreement by applying the contractual test. In that case, Finkelstein J referred to Ali v Christian Salvesen Food Services Ltd [1997] 1 All ER 721 (Ali), as a case which considered the question of the implication of terms into a collective agreement by reference to the contractual test, and cited (at [16]) the following observations of Waite LJ:
Should there be any topic left uncovered by an agreement of that kind, the natural inference, in my judgment, is not that there has been an omission so obvious as to require judicial correction, but rather that the topic was omitted advisedly from the terms of the agreement on the ground that it was seen as too controversial or too complicated to justify any variation of the main terms of the agreement to take account of it.
103 Finkelstein J also referred to the case of Construction, Forestry, Mining and Energy Union v Henry Walker Eltin Contracting Pty Ltd (2001) 108 IR 409 (Eltin) where the question of implication of a term in a certified agreement by applying the contractual test had been considered.
104 At [18], Finkelstein J went on to observe:
These cases suggest that the general approach is to apply the principles of contract construction, but with a predisposition against the implication of a term. For example, it was accepted in Ali v Christian Salvesen Food Services that there was a gap in the agreement which produced unfairness. However, this was not sufficient to convince the court that the gap should be filled. As a collective agreement is usually a carefully negotiated compromise between parties who have equal bargaining power, the tendency is to assume that the omission is intentional.
105 Finkelstein J used the contractual test to imply terms into the certified agreement. In determining whether and, if so, on what basis, a term could be implied into a certified agreement registered under the Workplace Relations Act, Finkelstein J considered the juridical nature of a certified agreement. However, in discussing the juridical nature of a certified agreement, Finkelstein J made no reference to the Full Court decision in Actew. There is some tension between the observations of the Full Court in Actew which characterise a certified agreement as having solely a statutory, rather than a contractual, basis, and the following observations of Finkelstein J at [12]:
On one view a certified agreement is no different from a private contract (a binding exchange of promises) between two or more persons, save that the machinery for its enforcement is conferred by statute. On this view the ordinary rules according to which a term can be implied into a contract will apply to a certified agreement. Terms can then be implied as a rule of law, as representing the imputed intention of the parties or by custom.
106 Further, Ali was an English case and the Court of Appeal did not refer to any statutory underpinning of the collective agreement it considered in that case. In fact, it was accepted by the Court of Appeal that the collective agreement had become part of each of the employee’s individual contracts of employment. Also, Eltin, the other case referred to by Finkelstein J, was decided before Actew. Accordingly, it may be necessary to approach the Skilled Engineering decision with some caution.
107 However, even if one was to apply the approach in Ali, approved by Finkelstein J, in my view, there is no reasonable prospect of Professor McAleer succeeding on this claim at trial.
108 This is because the terms of the certified agreement make it clear that the parties intended the provisions of Sch D to be exhaustive of the question of termination at the instance of the employer on grounds of misconduct. This case is stronger than that contemplated in the observations of Waite LJ in Ali which dealt with the position where the collective agreement is silent on a matter. Here, each agreement is not silent, rather each agreement makes it clear that Sch D is intended to be exhaustive.
109 The fact that the parties intended Sch D of the 2004 Agreement to be exhaustive is evident from the following clauses of the 2004 Agreement.
110 Clause 60.1 provides:
Termination of employment at the initiative of the employer is governed exhaustively by Schedule C Unsatisfactory Performance, Schedule D Misconduct, Schedule E Redundancy Provisions and Clause 61 Termination of Employment on the Grounds of Ill Health.
111 Clause 60.3 provides:
Except as specifically provided herein to the contrary, the terms of this Agreement shall cover exhaustively the subject‑matter concerned…
112 Further, cl 60.4 provides:
Any procedural requirements imposed by laws referred to in paragraph 60.3.2 above are entirely displaced and extinguished by force of this Agreement.
113 The relevant clauses in the 2006 Agreement are to the same effect.
114 In McAleer (No1), I held that cl 60 of the 2004 Agreement operated to exclude any modification to the express terms of Sch D by the implied common law contractual term that each party would not act to destroy the mutual trust and confidence necessary for the employment relationship.
115 It follows from this ruling that I would also dismiss Professor McAleers’s application for a penalty based on alleged breaches of the implied terms of the 2004 Agreement and the 2006 Agreement for which he contended.
116 It also follows that I dismiss Professor McAleer’s application dated 11 April 2008. I will hear the parties on costs.
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I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. |
Associate:
Dated: 6 October 2008
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Counsel for the Applicant: |
Mr R Lindsay |
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Solicitor for the Applicant: |
Talbot Olivier |
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Counsel for the Respondent: |
Mr HJ Dixon SC with Mr P Quinlan |
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Solicitor for the Respondent: |
Jackson McDonald |
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Date of Hearing: |
30 June 2008 and 1 July 2008 |
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Date of Judgment: |
6 October 2008 |
