FEDERAL COURT OF AUSTRALIA

Gaffney v RSM Bird Cameron (a firm) [2013] FCA 661

FEDERAL COURT OF AUSTRALIA

Gaffney v RSM Bird Cameron (a firm) [2013] FCA 661

CORRIGENDUM

1.    The citation contained in the Reasons for Judgment of Justice Gilmour dated 5 July 2013 refers to the First Defendant as “RSM Bird Cameron (A Firm)”. This should be amended to read “RSM Bird Cameron Partners (A Firm)”.

I certify that the preceding one (1) numbered paragraph

is a true copy of the Corrigendum to the Reasons for

Judgment herein of the Honourable Justice Gilmour.

Associate:

Dated: 2 December 2014

THE COURT ORDERS THAT:

1.    The applicant’s claims pleaded under paragraphs [17]-[21], [22]-[35] and [36]-[38] of the Consolidated and Amended Statement of Claim be dismissed.

2.    The applicant pay the respondents’ costs of the interlocutory application dated 2 November 2012.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction

1    The applicant was a partner of the first respondent (the partnership), a national accountancy firm, and a director of the second respondent. She was compulsory retired by an almost unanimous vote of her partners in March 2009. Her substantive application seeks various relief arising from this. As the applicant describes it, the gist of her case is that her partners, other than one partner who did not vote, did not act in good faith or upon real and genuine consideration when invoking the compulsory retirement mechanism under the partnership’s Rules of Partnership (the Rules). She also claims that she was discriminated against because of a disability imputed to her and by reason of her sex.

2    The respondents have applied for summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) and r 26.01(1)(a) or alternatively (c) of the Federal Court Rules 2011 (Cth) in relation to parts of the proceeding. It is sufficient, in this case, to resolve this application under s 31A. The relevant parts of the proceeding are those pleaded in the Consolidated and Amended Statement of Claim (CASOC) at paras [17]-[21], [22]-[35] and [36]-[38] in which, taken together, the applicant alleges that she was improperly compulsorily retired as a partner of the firm and in which she alleges discrimination.

3    The applicant has further claimed in the proceeding that the second respondent breached her contract of employment with it. That claim is not the subject of this application.

4    The respondents rely on the affidavit of Mr Kimbley John Hutchinson (Hutchinson) sworn 1 November 2012. He is a member of the partnership and its National Chairman since 2000. The applicant did not personally make an affidavit but relied upon the affidavit of her solicitor, Mr Peter Lyndon Harris, affirmed on 15 February 2013.

Section 31A of the FCA Act

5    Section 31A(2) and (3) of the FCA Act provide that:

(2)     The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)     the first party is defending the proceeding or that part of the proceeding; and

(b)     the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)     For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)     hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

6    The High Court considered the operation and application of s 31A in Spencer v Commonwealth of Australia (2010) 241 CLR 118. Hayne, Crennan, Kiefel and Bell JJ stated that:

[52]    … effect must be given to the negative admonition in (3) that a defence, a proceeding, or part of a proceeding may be found to have no reaonable prospect of successful prosecution even if it cannot be said that it is “hopeless” or “bound to fail” ... [T]he combined effect of sub-ss (2) and (3) is that the inquiry required … is whether there is a “reasonable” prospect of prosecuting the proceeding, not an inquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.

. . .

[60]    … full weight must be given to the expression [no reasonable prospect] as a whole. … it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly.

7    The question in each case will be whether the Court is satisfied that there is “no reasonable prospect” of successfully prosecuting the proceeding, or part of the proceeding. Whether “no reasonable prospect” is established will depend upon the Court’s assessment of the evidence adduced by both parties on the pleaded issues: Hill v Compass Ten Pty Ltd (2012) 205 FCR 94 at [42].

8    The respondents bear the onus of persuading the Court that the applicant has no reasonable prospect of success: Crayford Freight Services Ltd v Coral Seatel Navigation Co (1998) 82 FCR 328 at 333; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 at [127], but once the respondents have established a prima facie case that the applicant has no reasonable prospect of success, the applicant “must respond by pointing to specific factual or evidentiary disputes that make a trial necessary; general or non-particularised denials will be insufficient to defeat the motion ...”: Jefferson Ford at [127] per Gordon J. This last principle is of central importance to the disposition of this application.

Expulsion of a partner

9    There is no dispute as to the relevant legal principles. Partners possess no inherent power to expel other partners, unless that term has been expressly agreed between them. Section 35(1) of the Partnership Act 1895 (WA) (Partnership Act), in any event, provides that no majority of the partners can expel any partner unless a power to do so has been conferred by written agreement between the partners. It was common ground that the Partnership Act applied to this case

10    Rule 1.9 of the Rules of the first respondent provides that:

The Partners on the recommendation of the Executive Committee or upon receipt of a notice of motion which is signed by not less than 25% of all the Directors/Partners may by a three-fourths majority vote of all Partners resolve without giving any reason therefor to compulsorily retire any Partner by seven days notice in writing and upon the giving and the expiry of the time specified in such notice such Partner shall be deemed to have retired.

11    Despite the terms of r 1.9 of the Rules, the power of expulsion of a partner is governed by fiduciary obligation. It can only be exercised in good faith with a view to the benefit of the partnership: Blisset v Daniel [1853] 68 ER 1022; Steuart v Gladstone (1878) 10 Ch D 626 at 649-651; Green v Howell [1910] 1 Ch 495 at 504. However, if the power to expel is exercised in good faith, the Court cannot control its exercise.

12    In Australia, courts have accepted the validity of expulsion clauses, which permit the majority of partners to act without according the partner sought to be expelled an opportunity of being heard: Russell v Clarke [1995] 2 Qd R 310.

13    In Western Australia, however, s 35 of the Partnership Act requires the power of expulsion to be exercised in good faith with a view to the benefit of the firm and the partner, whom it is sought to expel, to have an opportunity of being heard. The requirement is that the power to expel be exercised with a view to the benefit of the partnership as a whole, rather than any particular partner or partners, and not for any collateral purpose or capriciously or arbitrarily. Reasonableness is not a requirement. Section 35(2) expressly provides that it is open to the partnership to look after its own interests.

14    It is the members of the partnership who will “know the little details which are essential to the social well-being of such a society of [members]” and, thus, a very strong case would be required to induce the Court to intervene on the grounds that the partners did not exercise the power of expulsion with a view to the benefit of the firm: Hopkinson v Marquis of Exeter (1867) LR 5 Eq 63 at 68. This too is the case in respect to the economic well-being of the partnership. There is no evidence that the power of expulsion was exercised other than with a view to the benefit of the firm.

15    It is also significant that the power of expulsion must be exercised “with a view to” the benefit of the firm. This does not impose a requirement that the firm, in fact, benefits from the expulsion. I accept the submission made on behalf of the partnership that those words serve to confirm the intent of s 35 to preserve the element of good faith between partners in relation to partner expulsions, while recognising that the composition of a partnership is a matter for the partners themselves, in which the Court has no role to play.

16    The applicant’s allegations that the partnership failed to act in good faith is not articulated on the basis that the relevant partners did not hold the view that the expulsion of the applicant was for the benefit of the firm. Rather, the applicant’s contention is that from the content of two Reports in essentially the same terms, provided to each of the respondents respectively, lack of good faith on the part of the partnership may be implied. I will refer to these Reports in more detail below.

The facts

17    I have made the following factual findings. They are not the result of the resolution of contested evidence but are largely based upon the affidavit of Hutchinson which includes many annexed documents which in turn include notes of important meetings prepared by the applicant personally. I have also taken into account the affidavit of Mr Peter Lyndon Harris.

18    The applicant commenced employment in 1989 with BPM Pty Ltd which traded as Bird Cameron Chartered Accountants. She was employed as an insolvency supervisor which was a relatively junior position. In 1994, she was appointed as an associate of the firm which is a more senior employee role. In 1996, all professional employees of BPM Pty Ltd, including the applicant, ceased to be employed by that company and commenced employment with the second respondent. She then became a partner in the partnership and a director of the second respondent on 1 July 2002.

19    Management of both respondents is undertaken by the Executive Committee ordinarily consisting of 5 partners/directors appointed by the partners and directors in general meeting every year. An appointment to the Executive Committee is for a period of 3 years and appointments are made so that tenure periods are staggered. One of the roles of the Executive Committee, which is usually undertaken by 2 members of the committee or a member of the committee and a nominated partner in the relevant local office, who is usually the managing partner of the local office, is to consider the performance and welfare of the partners/directors and to conduct periodic reviews in relation to these. Where there is a reasonable perception that a partner/director is underperforming, a process of conferral and counselling is undertaken with that partner. The goal in doing so is to understand the issues involved and search for and identify solutions in consultation and cooperation with the person involved. This process of conferral with partners/directors is a common occurrence and has occurred in relation to many partners/directors over the years with various outcomes. The process is ad hoc in the sense that every partner/director participating in such conferral will have his or her own peculiar issues for which appropriate solutions will vary.

20    At the end of the 2006 financial year, there were discussions at the partners’ retreat about the need for there to be key performance indicators (KPIs) put in place for directors/partners who were not meeting certain benchmark performance levels. Prior to that, partners/directors’ performance was analysed using a variety of methods, for example, based on the review of the management accounts. A decision was made to use the concept of KPIs as a performance review tool for the 2006/2007 financial year for certain partners/directors who were experiencing performance issues. The concept was not used in the 2007/2008 financial year. The partnership decided on the criteria for the conduct of a KPI review and set those criteria out in a memorandum to all partners/ directors, dated 28 June 2006.

21    After identifying the relevant criteria, the Executive Committee compiled a list of those partners for whom KPIs were required. Fifteen such partners were identified, including the applicant. She was the only female in this group of partners. The process of performance assessment based on the KPIs, which was only instituted for the 2006/2007 financial year, yielded a variety of different outcomes for the persons involved, ranging from improving their performance, so that it was no longer a matter for concern for the Executive Committee, to partners experiencing on-going performance issues and some partners choosing to retire from the partnership and their directorship.

22    Hutchinson wrote to the applicant on 3 August 2007, in connection with the KPIs for the period ending 30 June 2007. His letter indicated that he understood, which was the case, that the applicant had achieved what was considered to be a “par” performance for the 2006/2007 financial year. He also noted his understanding, at that time, that as far as the finalisation of a written plan for the applicant’s business unit was concerned, which itself was one of the KPIs, such plan, although due for finalisation by 30 September 2006, remained outstanding and he urged the applicant to address this matter in the next fortnight. There was no financial sanction for not having achieved this KPI because this was in line with the “no double jeopardy” assurance that had been given to all concerned. Hutchinson also indicated to the applicant that it was extremely pleasing to note that her personal performance had led to most of the KPIs being achieved in what was a vastly improved year for the applicant. He noted, however, that the requirement for a written future plan for the division remained an important concern and it was outstanding.

23    However, the applicant and her business unit substantially underperformed during the following financial year 2007/2008. As I mentioned, the applicant had performed well in the 2006/2007 financial year but that is not to the point of the meetings which are described below. Meetings were held between the applicant and representatives of the Executive Committee of the respondents on 21 December 2007, 18 April 2008, 30 April 2008, 12 and 13 June 2008 and 19 June 2008 to discuss her, and her business unit’s, underperformance and develop a solution to the problem. The applicant’s oral submission that, in fact, the purpose of these meetings was not to discuss her underperformance and that of her business unit is not supported by the evidence. It all points in the opposite direction and she has not deposed to any other purpose. These meetings are the subject of more detailed findings of fact below.

24    In a somewhat contradictory submission, the applicant contends that allegations made in those meetings as to under-performance on her part cannot be sustained. Self-contradiction apart, this submission suffers from two difficulties. First, it is contrary to the documentary evidence and the unchallenged evidence of Hutchinson. Second, it is an attempt by the applicant through submissions to invite a merits review of the partnership decision. I do not propose to deal with the applicant’s lengthy submissions to the extent that they depend upon factual assertions which are not supported by evidence. As I mentioned, the applicant, according to her senior counsel, considered putting on an affidavit by her personally but decided not to do so.

25    The 21 December 2007 meeting concerned the applicant’s financial performance. Hutchinson’s notes disclose that he told the applicant that her unit was not generating sufficient revenue and that if this continued there would be a need for further discussions in the new year. He inquired as to her personal welfare and whether she needed the involvement of the firm’s employee assistance scheme. She assured him that all was well. His concern about her and her unit’s performance is borne out by the Contribution Report dated 31 December 2007.

26    The Contribution Report dated 29 February 2008 showed no improvement in the trends identified in December 2007. The gross margin performance of the applicant’s business unit was 23% below budget and her own individual performance was 92% below budget.

27    Because of these budget deficits further meetings were arranged to discuss with the applicant the general direction and performance of her own performance and that of her business unit and were aimed at identifying solutions to these performance issues.

28    Mr Harris deposes that the applicant wrote by email to Hutchinson and Mr John Heggie, who was also a partner and was on the respondents’ Executive Committee as Deputy Chairman, dated 3 April 2008, requesting a meeting about her vision for the “Success Solutions” team but that she did not receive any response from him or Heggie.

29    This is less than forthright on the applicant’s part. I say this because I infer that Mr Harris’ affidavit was made upon her instructions. In fact, one of the proposed meeting dates was 17 April 2008. A meeting was actually arranged and took place the day after this.

30    This meeting took place on 18 April 2008 attended by the applicant, Hutchinson and Heggie. Hutchinson made notes of the meeting. There was discussion of, amongst other matters, staff issues, leadership and marketing of the financial performance of the applicant’s unit, her own performance and the impact which this underperformance would have on her partner profit distribution scheduled to be made in October 2008.

31    The next meeting was on 30 April 2008. The same three attended. Again the underperformance issues were discussed, and action by the applicant to address these was called for by Hutchinson and Heggie.

32    The applicant emailed Hutchinson on 9 June 2008 advising that she understood there would be a further meeting she was to attend on 12 June and she inquired as to whether she should bring anything to the meeting.

33    Hutchinson emailed the applicant the next day and advised her the meeting would be to assess the likely flow of Succession work, if any, following the departure of “David” as well as to “firm up on the future plan” given that the applicant would have completed a first budget draft. He also stated that there would need to be a review of actual results for April 2008.

34    The meeting on 12 June 2008 ensued with the same attendees. The meeting was adjourned to the next day as Hutchinson felt that the applicant was under-prepared in terms of having any proposals for solutions. The applicant made notes of the meeting, the accuracy of which is accepted by the respondents, if only for the purposes of this application. Significantly, they record that the partnership was not prepared to discuss an option whereby the applicant left the partnership. The partnership at this time wanted to arrive at a solution by which their concerns were addressed but where the applicant remained in the partnership. This is corroborated by the applicant’s notes which included:

KJH: Comments re: 2007/2008 financial results not good.

Budget for 2008/2009 not realistic.

KJH & JFH: They’ll be no profit share in 2008 in the Blue Book

…

Does not meet the Business Case.

…

KJH: “Your partners” will not accept the 2008/2009 budget going forward. We’ve got to look at other options to meet the Business Case.

…

KJH: The discussion led to me being a Salaried Partner.

GAFF: I said no. Not acceptable to me.

. . .

GAFF: So is this Salaried Partner role an Offer or an Option?

KJH: Correct, its an Option.

. . .

GAFF: There’s another option we need to consider and that’s where I would rather we part company.

KJH & JFH: Raised their eyebrows, sat back and said “no, that’s not an option we’re prepared to discuss”.

You’ve got your team … for the future ...?

35    The purpose of these meetings was to identify solutions to the underperformance problems as Hutchinson deposed at [27]:

… because from a timing point of view, the budgets for the next financial year were then to be approved, it was necessary to ensure that, by consultation and cooperation, there was an agreed and viable budgetary plan for the applicant and her unit for the forthcoming financial year. The solution that I was striving for was one that embraced the applicant remaining in the firm with a realistic and achievable business plan for herself and her unit’s team members.

36    The problem confronting the applicant was described in this way, relevantly, by Hutchinson at [28]:

To put performance matters in context as at 19 June 2008, the most up to date figures available to us were those for the financial year commencing 1 July 2007 up to the end of April 2008. … I understood these figures to mean that the applicant and her team had:

a.    as at the end of December 2007, net revenue of $452,817, resulting in a profit of $70,542, yielding a margin of 15.6% before applying national costs;

b.    as at the end of February 2008, net revenue of $603,524, resulting in a profit of $91,424, yielding a margin of 15.1%, before applying national costs; and

c.    as at the end of April 2008, net revenue of $663,598 resulting in a profit of $31,669, yielding a margin of 5% before applying national costs.

37    The last meeting was on 19 June 2008. Hutchinson and Heggie put three options to the applicant. They were:

(1)    that the applicant revert to being a salaried partner, which would mean that her first draw of profits would be in line with other Perth office equity partners, but that she would not be entitled to a further profit allocation. The reasoning behind this option, which Hutchinson explained to the applicant, was so that she could retain her partnership status and be given an opportunity to rebuild her unit, so that profitability and a sustainable business plan for the future could be achieved, which, subject to her being nominated and the partners/directors exercising their votes accordingly, would enable her to return to equity status. The applicant rejected this option;

(2)    that the applicant submit a plan to Hutchinson that could be given to the Perth managing partner, Mr James Komninos (JAK), so that he could assess its viability and the willingness of others to accept that plan. Hutchinson envisaged that, if this plan was to be acceptable, it would be necessary for the other Perth office partners to be willing to accept the underperformance of the applicant and her unit’s underperformance, perhaps due to their perception that there would be other intangible benefits derived by the wider practice. This is what Hutchinson meant by his short hand note “Discussing with JAK – investment subsidy”. Hutchinson does not recall that the applicant gave any positive response to this suggested solution; and

(3)    that, if options 1 and 2 were not suitable to her, then she was invited to submit any other viable option that she cared to submit.

38    As at 2007 and 2008, any business unit that was producing a profit margin, before application of national costs that was below 20% was considered problematic and the partners involved were consulted by the Executive Committee of the partnership to identify the issues and develop solutions.

39    In his notes of the 19 June meeting, Hutchinson wrote in relation to the applicant’s response to the third option: “Move out – move on” which he said were her words and by which he understood her to be referring to her departure from the partnership. Hutchinson replied that “this is not our agenda but, if that is what you wish to do we will facilitate this in a professional way”. He said that he may have used the words “harmonious manner with everyone’s reputation intact”. This is what the applicant noted that Hutchinson had said.

40    The applicant explained at this meeting that her figures and those of her unit for 2008 were the product of staff difficulties, write-offs as a result of handover files, as well as “loss leaders”. These explanations were not accepted by Hutchinson and Heggie.

41    The applicant, without mentioning anything at the 19 June meeting, and with no later notification or discussion, left the partnership’s premises and has never returned.

42    On 23 June 2008, four days after the applicant left the respondents’ premises, the partnership received a letter from the applicant’s solicitors, Deacons, indicating that they understood that the partnership wished to discuss the applicant’s retirement, and the manner of her retirement from the partnership.

43    Hutchinson received a follow-up telephone call from Ms Nadia Janis of Deacons soon after his receipt of their letter of 23 June, during which she sought the partnership’s response. Hutchinson said to her words to the effect that he had been busy, but that he did not understand why it was necessary to respond, as he thought the applicant was away on sick leave. He said to her that he intended on discussing any partnership matters with the applicant on her return. He followed up this telephone call with a letter of 27 June 2008 to Deacons, in which he confirmed that the partnership would be pleased to discuss with them any matters when the applicant returned from sick leave.

44    On 25 June 2008, Hutchinson received a handwritten letter from the applicant enclosing two undated medical certificates from the Queens Road Surgery, but each was by a different medical practitioner there. In the first medical certificate, Dr Gavin Marsh certified that for a period of one week from 20 to 26 June 2008, the applicant would be "unfit to attend work ... due to personal illness". In the second medical certificate, Dr Leonie Nulsen certified, in identical terms, that for a period of one month from 24 June to 24 July 2008, the applicant would be "unfit to attend work ... due to personal illness".

45    On 10 July 2008, Hutchinson received a telephone call from the applicant’s then solicitor, Ms Maria Saraceni of Deacons, in which she inquired why he had not scheduled a meeting to discuss the applicant. In response, Hutchinson said words to the effect that he had not intended to schedule a meeting because he was aware that the applicant was on sick leave and that he had not anticipated the need for a meeting until, at the earliest, she had returned from sick leave. In response, Ms Saraceni informed him that she, personally, would be on holiday after 15 July 2008 until mid-August 2008 and that, accordingly, a meeting needed to take place before then.

46    After consideration of Ms Saraceni's urgent request for a meeting, Hutchinson phoned her back and agreed to participate in a meeting which would be attended by him and Heggie, provided that they were given prior confirmation that the applicant had obtained medical advice that she was fit to attend the meeting and subject to being informed of the purpose of the meeting. He also mentioned to Ms Saraceni that, while it was unusual to have a meeting with a fellow partner in the presence of their legal representatives, if that was the applicant's choice, they too wished to have their own legal representative present.

47    Ms Saraceni wrote to Hutchinson by letter dated 10 July 2008 proposing a meeting at their offices in Perth to discuss the applicant’s “past treatment as a partner by the Partnership” and her “future with the firm”. The letter proposed that the applicant would attend, subject to medical advice, and with a support person for her to the extent required or recommended by her doctor.

48    During a telephone discussion on 10 July 2008 between Hutchinson and Ms Saraceni, Hutchinson was informed that the applicant believed she had been subject to some form of poor treatment by the partnership.

49    Hutchinson replied to Deacons letter by letter the following day advising the applicant’s solicitor that the partnership was unaware of the nature of the applicant’s illness and advising that because of her absence for over 2 weeks they would not be prepared to meet until such time as they received medical advice from a medical practitioner that she was fit to participate in any meeting and that such a meeting would not exacerbate her illness.

50    The partnership received a further letter from Deacons, dated 24 July 2008, noting that the applicant was unfit to participate in any meeting with Hutchinson at that stage and that they would let the partnership know when that situation changed. The letter also addressed the issue of the applicant's availability to attend to, or sign, documents in her capacity as liquidator of corporations, executor of deceased estates or trustee of testamentary trusts. The letter from Deacons also referred to and enclosed a further medical certificate from Dr Leonie Nulsen of Queen's Road Surgery, certifying, in identical terms to the previous medical certificates, referred to above, that for a period of 3 months, from 22 July 2008 to 23 October 2008, the applicant would be "unfit to attend work ... due to personal illness".

51    By letter dated 1 August 2008, Hutchinson wrote a personal letter to the applicant. He stated that he was puzzled that she was communicating with him through a solicitor. He then referred to the most recent doctor’s certificate and noted that he and his fellow partners were very concerned for her health and sent their best wishes. He queried whether there was anything they could do to speed her recovery. There had been, in earlier correspondence from her solicitors, a suggestion that certain of her work could be done from home. Hutchinson stated that there were additional matters to be considered concerning ongoing client work and staff supervision which required a plan. He sought some clarity from her as to her current capacity to perform work from home and her anticipated return to work. He also mentioned that as well as his concern for her he had duties to the partnership and suggested she undergo evaluation by a medical specialist appointed by the partnership. Hutchinson asked for some general details regarding the nature of her illness. He concluded by saying that he hoped to speak with her soon and to continue to offer any reasonable support and assistance by himself personally or the firm.

52    The applicant did not avail herself of the offer of assistance nor did she provide any further details of her illness.

53    On about 12 August 2008, Hutchinson telephoned the applicant to discuss a matter that had arisen concerning a deceased estate for which she was the executor and sought guidance from her as to how those matters ought to be addressed in the circumstances, because someone needed to deal with her files in her absence. The applicant told him that somebody from Deacons would respond to those queries on her behalf.

54    On 13 August 2008, Hutchinson received an email from Ms Saraceni noting that she had just returned from leave, had read his letter of 1 August 2008 to the applicant and had not yet had an opportunity to take instructions from the applicant but would do so shortly and revert to him. By email of the same day, Hutchinson noted that he was out of the office until Friday and asked that she direct her correspondence to him and that he would arrange for Heggie to attend to it.

55    As at 15 August 2008, Hutchinson had not yet received any substantive response to his letter of 1 August 2008 to the applicant. He sent an email to Ms Saraceni, dated 15 August 2008, in which he noted that he had not received any correspondence, meaning “substantive” correspondence, from either herself or the applicant and that their solicitor Amy Toohey’s calls to her office had not been returned.

56    Deacons replied to Hutchinson’s email of 15 August 2008 in their letter, dated 19 August 2008. In that letter, Deacons informed him that the applicant had a further appointment with her medical practitioner on 20 August 2008, more than two months after she had left the partnership’s premises, and that Deacons would update him thereafter. Deacons sought to make the point, which Hutchinson had not previously appreciated, that the medical certificates had said that the applicant was “unfit to attend work”, not that she was unable to undertake work from home. His attitude was that the medical certificates said, blandly, that the applicant was “unfit to attend work ... due to personal illness” and, until he had more information and a better insight as to that degree of unfitness and the nature of her personal illness, it would have been unprofessional for him, and not in the interests of the partnership or its clients, including the insolvent corporations and their creditors and the estates and their beneficiaries, to allow the applicant to undertake work at home.

57    He was also concerned, given his then knowledge that undertaking work at home might exacerbate the applicant’s unfitness and personal illness. He had difficulty understanding how she could undertake work from home and “continue to be actively engaged in the business of the firm”, as expressed in Deacons’ letter, in circumstances where Deacons confirmed the statements made in the medical certificates, namely,“her inability to attend work due to personal illness”, and given that this inability and the personal illness had, by then, endured for two months and no indication was given of any abatement in them. By this time, significant attempts had been made by Hutchinson and the partnership’s solicitors, Clayton Utz, to find out the nature of the applicant’s illness.

58    Of particular concern to him, as representing the partnership in dealing with the matter, was the severity of the personal illness, which enabled a medical practitioner to certify that the applicant would be unfit to attend work for three months. What Hutchinson considered to be the coyness of the applicant and her legal representatives in relation to disclosing to him the nature of the applicant’s illness was a matter of grave concern to him in relation to his ability to deal with the matter in the interests of all relevant parties and in relation to the attitude of the applicant to her fellow partners. In his view, at the time, the disclosure of the nature of the applicant’s illness to the National Chairman of partners, was a minimum requirement of the partnership relationship. He also felt that the absence of such disclosure also affected his ability to make informed decisions.

59    In its letter to the applicant’s solicitors dated 22 August 2008, the solicitors for the partnership wrote, amongst other things, concerning the applicant’s proposal that she work from home on certain files:

    We note that you have indicated that Ms Gaffney is willing to undertake the necessary work from home. However, in the absence of any information regarding Ms Gaffney's medical condition, our client is unable to accept that approach at this stage.

    The last medical certificate provided in relation to Ms Gaffney's absence contained one sentence only and provided that "This is to certify that Angela Crotty attended Queens Road surgery on the 22 Jul 2008 and will be unfit to attend work from 22/7/08 to 23/10/08 (inclusive) due to personal illness". That certificate provides our client with no comfort that Ms Gaffney is capable of working from home. On the contrary, our client can only assume that the medical condition is very serious in nature, given the significant length of absence required from work. Our client has no awareness of the nature of Ms Gaffney's medical condition, whether it is physical or mental, nor what work she is capable of performing in light of that medical condition

    It was in part due to that lack of information that Mr Hutchinson wrote to Ms Gaffney by letter dated 1 August 2008. In addition to seeking to offer the concerns and support of RSM Bird Cameron to Ms Gaffney at this time, Mr Hutchinson requested some general details regarding the nature of Ms Gaffney's illness so that a medical specialist could be appointed to evaluate Ms Gaffney's health to confirm such matters as whether Ms Gaffney is able to work from home or to deal with any matters in relation to her practice or the partnership.

    No information has been forthcoming from Ms Gaffney in this regard to date. It is not clear whether that is due to an inability to respond to correspondence directly and if that is the reason for the involvement of her solicitors. We request that you seek Ms Gaffney's instructions to provide us with general details regarding the nature of Ms Gaffney's illness so that our client can proceed to appoint a medical specialist to see Ms Gaffney, as is required in these circumstances

    We note that the attendance by Ms Gaffney at a consultation with a medical specialist appointed by RSM Bird Cameron will not affect any additional steps that may be required by the relevant insurer in relation to any salary continuance insurance that may cover Ms Gaffney from 19 September 2008.

    We note from your letter to Kim Hutchinson dated 19 August 2008 that an update would be forthcoming following an appointment by Ms Gaffney with her medical practitioner on 20 August 2008 and we await that update.

    We request that you provide the update and the general details regarding the nature of Ms Gaffney's illness as soon as possible, as our client is concerned that a number of matters in Ms Gaffney's practice require attention and our client must plan how they are dealt with on an urgent basis.

(Original emphasis.)

60    Hutchinson, on behalf of the partnership, wrote directly to the applicant also by letter dated 1 September 2008 in which he stated.

    I refer to my letter to you dated 1 August 2008.

My letter was sent in light of your absence from work since 19 June 2008 and that you have not contacted me or any other Director of RSM Bird Cameron regarding the reason for your absence.

While you have provided letters from a general practitioner indicating that you will not return to work before 23 October 2008, 1 explained in my letter that we require some clarity regarding your current capacity to perform client work from home or your anticipated return to work to deal with ongoing client work and, to that end, it would be appropriate for your health to be evaluated by a specialist appointed by RSM Bird Cameron.

For that purpose, I asked that you provide me with general details regarding the nature of your illness so that a specialist could be appointed. You have not responded to my letter.

I have been reluctant to contact you further while you are absent and have therefore postponed doing so for as long as possible. I also instructed our solicitors, Clayton Utz, to contact your solicitors, Deacons, in the hope that they may obtain the necessary information without any need for me to contact you further while you are absent from work. However, Deacons has not responded to Clayton Utz with the information requested.

As you are appointed the sole liquidator, joint liquidator, trustee or executor for a number of matters, some urgent arrangements must be made in light of your extended absence. I am becoming increasingly concerned about a number of those matters. As you would be aware there are several deceased estates that require regular administration and the execution of documents. Failure to meet the administration requirements could result in material financial loss.

In light of the increasingly urgent need for us to evaluate how to deal with such matters and our continued lack of information regarding your capacity to work or the length of your absence, I direct you to provide me with information regarding the nature of your illness by 5.00pm on Wednesday, 3 September 2008. The information need only be very general in nature to enable us to appoint the correct type of specialist.

61    The applicant’s solicitor also wrote to the partnership’s solicitors by letter dated 1 September 2008. It attached a medical certificate, dated 26 August 2008, concerning the applicant which said that she was capable of working from home, but that she had been subject to bullying in the workplace and so felt not capable of continuing in that environment. The medical certificate did not mention any personal illness nor were the allegations of bullying particularised. The letter stated that the applicant had given instructions that the nature of her personal illness was due to work-related stress caused by bullying and sexual discrimination. It sought to have a meeting in terms of their earlier letter of 10 July 2008. It also stated that the partnership was not to correspond directly with the applicant. It said that it was the physical environment of the workplace from which the applicant’s general practitioner recommended she stay away.

62    This was the first occasion on which Hutchinson had been informed that the applicant's personal illness was due to work-related stress and that such stress was caused by alleged bullying and sexual discrimination. Other than a general mention of bullying by Ms Saraceni on 10 July 2008, referred to below, it was also the first time that he learned that the applicant was alleging that she had a personal illness due to being bullied or subjected to sexual discrimination at work. His view, at the time, was that the statements by Deacons were unenlightening as to the nature of the personal illness, although its alleged causes had, in a very general way, without any specificity, been disclosed. The applicant had not previously brought to his attention, during their earlier meetings, any allegations of bullying or sexual discrimination. He still does not know what was the substance of the bullying allegations. None are relied upon in the CASOC. He still did not know what was the substance of the “sexual” discrimination allegations, other than what he later gleaned from the allegations in the applicant’s CASOC.

63    As I mentioned, the word “bullying” had been used was in Hutchinson’s conversation with Ms Saraceni on 10 July 2008 when they discussed the proposed meeting with the applicant and her solicitors. Ms Saraceni had said that the attendees at the meeting could not be persons against whom allegations of bullying were made. She did not elaborate upon those allegations further. Hutchinson had asked her whether Heggie and he would be acceptable participants at the meeting and she indicated that they would be acceptable participants. Hutchinson assumed, not unreasonably, from that statement, that they were not the alleged bullies.

64    In those circumstances, as the nature of the applicant's illness appeared to indicate a form of mental or psychological incapacity, the nature or severity of which was not disclosed and of which Hutchinson was unaware, he was not satisfied that, in the interests of the partnership or its clients or the applicant herself, he could, without more, permit the applicant to perform work from home, while she recovered. Accordingly, he instructed Clayton Utz to write to Deacons informing it that the partnership required the applicant to attend upon an appointment with Dr Terace, a psychiatrist, for assessment. Dr Terace was selected as the relevant specialist because all Hutchinson knew about the applicant's personal illness was what he had been told by Deacons, namely, that it was due to work-related stress. He and the partnership were otherwise entirely ignorant as to the nature of the applicant's personal illness and her condition.     

65    Clayton Utz wrote to the applicant’s solicitors by letter dated 8 September 2008 reiterating, amongst other things, that the partnership had, despite previous requests, not received even general details of the applicant’s illness. It noted however, referring to the applicant’s solicitor’s letter dated 1 September 2008, that the nature of the illness was said to be due to “work-related stress”. The letter advised that the partnership was prepared to attend a meeting on a “without prejudice” basis with a view to resolving the issues. The letter also stated that if the intention of the proposed meeting was for the applicant to raise complaints regarding her treatment by the partnership then the more appropriate method was to do so in the way set out in the partnership Grievance Policy document, a copy of which was attached. It closed with a request that the time and place for the without prejudice meeting be confirmed.

66    Deacons replied to this letter by their letter, dated 9 September 2008. In that letter, Deacons also requested certain information in relation to the proposed examination and assessment of the applicant by Dr Terace. Clayton Utz replied to Deacons’ letter by letter, dated 11 September 2008.

67    By letter dated 15 September 2008, Deacons, sought from Clayton Utz certain information in relation to the proposed examination and assessment of the applicant by Dr Terace.

68    By letter dated 18 September 2008, Clayton Utz wrote to the applicant’s solicitor. It included the following :

    We refer to your letters dated 9 September 2008 and 15 September 2008.

    We address the itemised requests set out in your letter dated 15 September 2008 below.

    However, we note that our client does not intend to enter debate regarding whether it has the power to direct Ms Gaffney to attend a medical practitioner of its nomination. To date, other than a three sentence letter from a general practitioner, no information has been provided regarding Ms Gaffney's mental/psychological condition, which is assumed to be severe in nature in light of the length of her absence from work.

    Ms Gaffney has a senior role and her duties involve the making of high level decisions for the clients of RSM Bird Cameron. It is clearly untenable for our client to allow Ms Gaffney to return to any of her duties in these circumstances without further details of her condition. To do so would be contrary to our client's duties in relation to Ms Gaffney's potential welfare and to its clients' interests.

    As requested by your letter:

1.    HR Policy 17 is attached with this letter.

2.     The information provided to new partners admitted in July 2002 is attached with this letter. The acceptance of the offer of partnership included a declaration that the partner is satisfied in relation to the information.

3.    Dr Terace is a Consultant Psychiatrist. His consulting rooms are at Unit 28, 82-84 King Street, Perth. An appointment has been made for Ms Gaffney at his consulting rooms at 1:30 pm on Monday 13 October 2008.

4.    We will not provide our letter seeking a medico-legal report from Dr Terace. No letter exists at this stage. In any event, such a letter will no doubt include a request that Dr Terace assess whether the discussion of specific matters with Ms Gaffney will cause her to suffer psychological illness or injury or further psychological illness or injury. We do not wish for those specific matters to be raised indirectly with Ms Gaffney before Dr Terace's assessment is obtained.

69    A meeting took place on 22 September 2008 at the office of the applicant’s solicitors. Mr Harris has deposed that the applicant told him that during this meeting she was told by Hutchinson that there was “no role” for her in the firm. Her solicitor, about two months later, mentioned this in a letter dated 21 November 2008 sent to Clayton Utz. Hutchinson’s recollection is that this was in the context of her rejection of the first two options, namely, becoming a salaried partner and production of plans and timeframes for improved performance. Hutchinson’s recollection is that he said at the meeting that if there was no agreement on the first two options then he agreed with the applicant’s solicitor, Ms Saraceni, when she said there was no role for her client.

70    This difference in the evidence on this point is not material as will become apparent.

71    By letter dated 3 October 2008, Deacons wrote to Clayton Utz in relation to the meeting on 22 September 2008, the proposed examination of the applicant by Dr Terace and possible settlement of the matter. Deacons inquired whether, on its understanding of what transpired at the meeting on 22 September 2008, the partnership still required the applicant to attend the appointment with Dr Terace.

72    A consultation with Dr Terace was booked for 13 October 2008.

73    By letter dated 7 October 2008, Clayton Utz informed Deacons that the partnership did require, and directed, the applicant to attend the appointment with Dr Terace and provide her consent for Dr Terace to release his medical opinion and associated information to the partnership. The letter was written on the basis that the applicant was then still a partner and the partnership needed to obtain information to assess her capacity to return to her duties in light of the dearth of information that had been provided by her, the medical practitioners engaged by her and her solicitor in relation to her personal illness.

74    By a separate letter, dated 7 October 2008, Clayton Utz wrote to Deacons for the purpose, amongst other things, of correcting Deacons' understanding as to the three options for the applicant discussed at the meeting on 22 September 2008. Hutchinson had instructed Clayton Utz to write that letter because, whatever was said and understood by the persons present at the meeting on 22 September 2008, he did not want there to be any misunderstanding on the part of the applicant and her solicitors as to what the partnership understood to be the options open to the applicant. This letter included the following:

The options arose from Ms Gaffney's failure to meet budget targets for the financial year 2007-2008 and the projected failure for Ms Gaffney to meet the budget targets for the financial year 2008-2009. In order that Ms Gaffney is clear regarding the suggestions that have been made by our client in relation to those issues, we confirm our client's view of the three options that have been discussed as follows:

1.     In an attempt to build the profitability o [sic] the unit while retaining Ms Gaffney's status as partner, Mr Hutchinson offered that Ms Gaffney may cease to become an equity partner and become a salaried partner. Ms Gaffney continues to reject this option

2.    The second option was not on the terms set out in your letter. The second option was that:

(a)    if Ms Gaffney could not meet budget targets and specific business plans; and

(b)    if Ms Gaffney had alternative plans and time frames in which she may meet those budget targets and specific business plans,

then Mr Hutchinson would liaise with the Perth Managing Partner to ascertain the level of support by the partnership for her to continue to draw as an equity partner on the basis of the alternative plans and time frames. As Ms Gaffney did not provide any alternative plans and time frames, it was understood that she rejected that option. It was further understood from the meeting on 22 September 2008 that Ms Gaffney continued not to have any alternative plans and time frames for meeting budget targets and business plans and, accordingly, that option was not viable.

3.    Leaving the partnership was an option put forward by Ms Gaffney during a meeting with Mr Hutchinson and Mr Heggie on 19 June 2008, immediately before she left work on sick leave. It was discussed at the meeting on 22 September 2008 that, in light of Ms Gaffney's rejection of the first option and the second option not appearing viable in the absence of alternative plans and time frames put forward by Ms Gaffney, the third option may be the option of default. It is misleading to describe it as our client's preference.

    (Original emphasis.)

75    On 9 October 2008, Hutchinson wrote a personal letter to the applicant again directing her to attend the consultation scheduled with Dr Terace. Hutchinson, understandably, was becoming increasingly frustrated by his inability to make informed decisions in the interests of all parties concerned because of his lack of knowledge of the nature of the applicant's personal illness, her current condition and the prognosis for her recovery.

76    By letter dated 10 October 2008, Deacons responded to Clayton Utz's two letters, dated 7 October 2008, and Hutchinson’s letter dated 9 October 2008. Hutchinson was having considerable difficulty understanding the coyness of the applicant and her solicitors in disclosing to him, as the National Chairman of partners, the nature of the applicant's personal illness and her condition. The applicant's solicitors had informed him that the applicant's personal illness was due to work-related stress. He assumed that such stress, if it manifested itself in a personal illness, would take the form of some type of mental or psychological condition or mental incapacity. However, he did not actually know and did not want to jump to any conclusion which might do a disservice to any party. Hence the requirement that the applicant be examined by Dr Terace, who, he understood, was, in the circumstances, the most appropriate specialist. Neither the applicant nor her solicitors suggested to Hutchinson that any other specialist or any medical practitioner in another specialist area of medicine ought become involved or that Dr Terace was an inappropriate choice in the light of the nature of the applicant's personal illness or her condition. The medical certificates provided by the applicant at that point were from general practitioners and were unenlightening in circumstances where they suggested that the applicant's personal illness was so severe that she was unfit to attend work for at least four months. Importantly, Deacon’s letter included the following:

We refer to your two letters dated 7 October 2008.

Without Prejudice Letter

Even accepting your version of the 3 options, the end point is the same i.e. the third option is considered viable (subject to agreeing terms and conditions) by all concerned.

(Original emphasis.)

77    Accordingly, whatever might have been said and by whom about the applicant having “no role” in the partnership, the applicant, by this letter, made it plain that from her perspective it was only the third option, namely, her exiting the partnership, which was viable.

78    On 13 October 2008, the applicant attended at the scheduled appointment with Dr Terace. Dr Terace wrote a letter to Clayton Utz, dated 14 October 2008, in relation to the applicant's attendance upon him on that date. Dr Terace wrote, amongst other things, that the applicant “wished to decline” the interview because she did not wish to provide the partnership with further information beyond what it already had because she perceived it was her right to do so. This is confirmed by the applicant’s own notes of her meeting with Dr Terace which are to the effect that she was concerned that he could be called by the partnership to give expert evidence concerning any medical review he conducted in respect of her. Moreover, Mr Harris deposes that the applicant informed him that she had informed Dr Terace that day that she would not provide her consent for any medical report to be released to the partnership or to its solicitors. During the entire period of her absence, the applicant was being paid all the remuneration to which she would have been entitled had she worked continuously during the full period that she was absent from work. Almost 8 months had elapsed since her departure from the partnership’s offices, and the applicant's period of absence from work had become indefinite with there being no apparent likelihood that she would ever return to work.

79    The partnership’s solicitor wrote to Deacons, by letter dated 8 December 2008 in which they stated, in effect, that a failure to achieve settlement between the parties within the time frame envisaged would result in the partnership arranging for formal consideration to be given to invoking the compulsory retirement provisions in relation to the applicant.

80    Negotiations took place between the parties and their solicitors between November 2008 and March 2009.

81    By 4 February 2009, the Executive Committee and Hutchinson, against the background of all the facts I have set out above, were confronted with the position that the applicant:

(a)    would not provide the partnership with details of her personal illness or the severity of her condition, what her prognosis was or what steps she was taking to treat her personal illness and speed her recovery;

(b)    would not return to work; and

(c)    albeit that she was on sick leave, was apparently able to attend to some partnership duties from home in some limited, unidentified capacity.

82    The view of the Executive Committee at its meeting on 4 February 2009, which reflected Hutchinson’s own view, was that the position of the applicant, as a partner and a director, was, in those circumstances, entirely untenable. Particularly, the view was that a partner and director could not operate efficiently, as such, without being present at the partnership’s offices to supervise and manage his or her practice, particularly to supervise, control and monitor his or her team, undertake administrative work and attend meetings with fellow partners and directors. The Executive Committee was unanimously of the view that it had no option and, for the first time in the history of the partnership which was founded in 1922, to commence preparation of the paperwork necessary to deploy the compulsory retirement mechanisms available under the Rules in order to put to a vote of the full partnership and the second respondent, the recommendation that a decision be taken to require that the applicant be compulsorily retired.

83    The respondents’ solicitors, Hammond King Touyz, were engaged to assist in the preparation of the necessary paper work.

84    Draft versions of the information that would be supplied to all partners and directors for the purposes of the meetings were prepared by Hutchinson, or by the secretary of the second respondent, Mr Con Abbott, on his instructions, and circulated amongst the Executive Committee for comment. The five members of the Executive Committee at that time were Hutchinson, (National Chairman and located in Perth), Peter Marsden (Sydney), Terry Rodini, (Adelaide), Phil Ransom (Melbourne) and Ken Wood (Melbourne). Mr Heggie was no longer a member of the Executive Committee, his tenure having ended on 31 December 2008.

85    Two of the documents that were drafted were headed, respectively, "Compulsory Retirement of Angela Ann Gaffney from Directorship of Birdanco Nominees Pty Ltd"; and one in identical terms, save for necessary changes, headed "Compulsory Retirement of Angela Ann Gaffney as a Partner of RSM Bird Cameron Partners” (Draft Reports). These Draft Reports are defined by the applicant at [19] of the CASOC under particular (e) as “the Recommendation to Resolve Report”.

86    The Draft Reports were shown only to the respondents' solicitors, Hammond King Touyz, the members of the Executive Committee, Mr Con Abbott and Hutchinson’s personal assistant. The Draft Reports were amended. One such amendment was the removal, in [5], of the name of Dr Terace and the word "psychiatrist". Final Reports were created (the Reports).

87    The applicant received precisely the same documents that were circulated to the other partners and directors in relation to the meetings held on 27 March 2009, namely, Notices of Meeting, proxy voting forms and the Reports. Each of the members of the Executive Committee signed off on the contents of the Reports. No member of the Executive Committee indicated to Hutchinson, at any time, that the contents of the Reports did not reflect their understanding of the position. The Reports indicated Hutchinson’s understanding of the position at that time which was that, prior to 19 June 2008, the Executive Committee and Hutchinson were grappling with a not uncommon problem in relation to a partner and director, namely, how to resolve, through cooperation and consultation, underperformance issues which he or she was experiencing. After 19 June 2008, the Executive Committee was faced with an entirely different problem, namely, a partner/director who had absented herself from work, indicated no apparent intention of returning and would not engage with her fellow partners and directors at any level, other than limited engagement of a litigious character through her solicitors. It was for this reason that the Reports concluded that "[the applicant's] continued absence from work and unwillingness to consult with [the partnership] regarding her illness, absence or future direction has created uncertainty amongst her staff and fellow Partners, effectively requiring the National Executive to act to protect the best interests of the RSM Bird Cameron group (including its Partners and employees) [and the directors of Birdanco]".

88    The applicant was informed of the meetings and their purpose and given an opportunity to present any submissions or matters, as to why she should not be compulsorily retired, in writing or by attending the meeting. The applicant was informed that, if she chose to present written submissions, in order to facilitate their distribution and consideration, it was imperative that they be received by Hutchinson by no later than close of business on 20 March 2009.

89    By letter dated 20 March 2009, the applicant provided a written submission for distribution to the partners and directors of the partnership and the second respondent respectively. On 25 March 2009, Hutchinson forwarded the applicant's submission to all partners. The applicant's submission was dated 20 March 2009, but was only couriered to the respondents' offices on 23 March 2009. Hutchinson did not circulate the submission to all partners and directors until 25 March 2009, because he had understood that, in the interim, the parties had agreed to settle the matter and that, therefore, it was unnecessary to proceed with the compulsory retirement meetings. In the event, there was a dispute as to whether or not a settlement agreement had been concluded and the meetings were required to, and did, proceed.

90    The meetings scheduled for 27 March 2009, proceeded in accordance with the Notices of Meeting.

91    Sixty-six of the sixty-seven partners of the partnership voted, either personally or by proxy. Sixty-five votes were cast in favour of the resolution. The applicant's vote was cast against the resolution, and so the resolution was carried. Mr Chris Allen, a partner, was absent, as appears from the minutes of meeting, dated 27 March 2009.

92    Some partners lodged proxies, indicating how they wished to vote, whether in favour of the resolutions or leaving it to the discretion of the proxyholder, prior to receiving the applicant's submission. No partner or director, who had lodged such a proxy, indicated to Hutchinson, after receiving the applicant's submission, that he or she wished to change his or her vote.

93    At no time did the applicant indicate to Hutchinson or any other partner that she wished to be present at the meeting on 27 March 2009 or convey any further matters to the attendees, other than what was contained in her submission dated 20 March 2009.

94    By letter dated 27 March 2009, Hutchinson notified the applicant that the relevant majorities of partners and directors had resolved to retire her as a partner and director of the partnership and second respondents respectively.

95    Based on his knowledge of the income protection insurance polices held by the firm, Hutchinson believed that, once the applicant had been absent from work by reason of an illness, pursuant to their insurance policy with National Mutual Life Association of Australasia Limited, and after a qualifying period of 90 days, the partnership was entitled to indemnification from its insurer for the remuneration it had paid to the applicant while she was unfit to attend work due to illness. His view, and that of the Executive Committee, was that the relevant forms should be completed by the applicant and her medical practitioners and a claim lodged. It was a matter for the insurer how it responded to the claim. He tried, on a number of occasions, to obtain the cooperation of the applicant in completing the claim form in circumstances where she was unwilling to disclose to her fellow partners and directors the relevant information as to the nature of her personal illness, her condition and the prognosis for the future.

96    Throughout this period the applicant provided almost no particulars of the alleged bullying and sexual discrimination. In a “without prejudice” letter sent by her solicitor to Clayton Utz dated 21 November 2008, it was stated that the applicant “felt bullied” by being told by Hutchinson and Heggie that she needed, in effect, to be demoted.

97    However, the applicant has not made any allegations against Hutchinson or Heggie in her CASOC of bullying or sexual discrimination nor provided particulars of such alleged conduct by either of them or any other member of the partnership. All that is pleaded is at CASOC [31(g)(ii)(A)] where it is alleged that the partnership had been advised by her solicitor on or about 10 July 2008, that her absence from work was due to bullying. Nor did she do so in her written submission to the partners in relation to the resolution for her compulsory retirement from the partnership. More importantly, she has not deposed to any such conduct for the purposes of this application.

98    I will now turn to the several claims impugned by the respondents. I will deal firstly with what is described as the partnership claim and then, in turn, the two discrimination claims.

The partnership claim

99    The applicant, through her former solicitors, Ilberys, by letter dated 10 October 2012, provided further particulars to the respondents’ solicitors as follows:

Paragraph 31 alleges, in broad substance, that “the partners of the First Respondent” failed to exercise their discretion as they were bound to do. The Applicant’s case is put on the basis of the documents set out in the particulars to paragraph 31 and the other facts there particularised. She will submit at trial that the Court should make findings of fact and draw certain inferences, based upon the contents of those documents and those facts, and upon the presumptions created by the laws of partnership. .....

The particulars to paragraph 31 refer to the Report to Partners dated 6 March 2009. As far as the Applicant knows, this document (and in some cases her Response) contained the information upon which “the partners” acted in voting upon the resolution to exclude her from the Partnership, given that the Report was provided to each of them prior to the vote on the resolution. The Applicant will ask the Court to draw inferences that each of “the partners” did so.

The particulars you seek ... are not particulars she is able to supply other than to say that her case is based upon the Report to Partners which formed the basis for “the partners” decision to exclude her from the Partnership. It is her case that [sic], Report to Partners was flawed and by reason of the fact “the partners” acted upon that document, “the partners” acted as alleged in paragraph 31. Frankly, we do not see what more the Applicant’s statement of claim can achieve, in light of the documents discovered by all parties, and the evidence available to her.

The particulars to paragraph 31 identify the alleged conduct the Applicant relies upon for her case. ....”.

100    At the core of the applicant’s claim of being improperly compulsorily retired as a partner is her assertion that the Reports, dated 6 March 2009, which recommended that she be compulsorily retired and which accompanied the Notices of Meeting at which this was to be raised on 27 March 2009, was flawed and that the partners concerned, who acted upon that document, without more, thereby failed to act in good faith.

101    Referring to the Reports, the applicant, in her written submissions, described the alleged flaw in a curious manner. She posited that if the Reports contained false or misleading information, excluded relevant information, included irrelevant information or constituted a breach of any statutory obligation, then any lack of good faith on the part of the Executive Committee in creating the Reports upon which the partnership voted must be imputed to the partnership.

102    At the outset of the hearing I declined an application by the applicant to cross-examine Hutchinson. Hutchinson had put on a lengthy and detailed affidavit concerning his dealings and those of others in the partnership with the applicant. The matters upon which senior counsel for the applicant indicated she wished to cross-examine did not arise in any specific or particular way from any of the evidence put on by the applicant through her solicitor Mr Harris, or indeed by reference to any matters pleaded by the applicant.

103    More importantly, however, I do not consider that, generally, cross-examination is appropriate upon an application under s 31A. If a factual dispute is able to be demonstrated upon a material issue then that will ordinarily be fatal to the application for summary judgment. Such a dispute can readily be demonstrated by evidence put on by the party opposing the application. As I said, the applicant has put on no such evidence.

104    Following this ruling, and after a short adjournment, the applicant sought an adjournment of the hearing to another date to enable her to put on such evidence. I refused this further application. Senior counsel for the applicant informed me that in the preparation for the hearing, consideration had been given to putting on such evidence but the decision had been made by her not to do so. The application for summary judgment was listed for hearing as far back as 27 November 2012. There was before me a chain of correspondence between the solicitors for the parties concerning the question of evidence to be put on by the applicant. The failure to put on evidence was deliberate. It was no accident. There is a public interest in this Court dealing with cases expediently. This has legislative underpinning. The applicant must live with the consequences of her forensic decisions as to how she responded to the application. The respondents established more than a prima facie case for summary judgment on the evidence filed by them. It was in those circumstances for the applicant to put on evidence raising specific factual or evidentiary dispute that would make a trial necessary: Jefferson Ford at [127]. She has signally failed to do so.

105    As I mentioned, there are no particulars to [31] of CASOC, to the effect that the power to compulsorily retire the applicant was not exercised in good faith in what the partners believed was for the benefit of the firm. There is no suggestion of any mala fides, ulterior motive, collateral purpose, caprice, arbitrariness or personal benefit that is found in cases such as Wood v Woad (1874) LR 9 Ex 190 at 198.

106    None of the particulars under [31] of the CASOC were established by evidence put on by the applicant. The evidence from the respondents in fact established the contrary of such of those allegations which might have been material. Where the allegations are admitted, such as that the partnership did not seek a prognosis for the applicant from her general practitioner and insisted that the applicant attend upon a psychiatrist retained by the partnership, they do not advance the applicant’s claims.

107    I am satisfied that the partners adopted a measured and considered approach to the issues confronting them in relation to the applicant. Members of the Executive Committee conferred with her on a number of occasions over a six month period in relation to issues concerning her performance and that of her unit. While that process was on-going, the applicant absented herself from the partnership’s premises, without warning or notice to the partners; engaged a firm of solicitors; indicated that she was only prepared to communicate with the partners through her solicitors; refused to disclose to the partners the nature of her personal illness or the cause of it or her condition or her prognosis in terms of recovery and return to work; and gave no indication that she ever intended to return to work. I find that the partners tolerated this position for more than eight months, during which they endeavoured to glean further information from and negotiate with her to break the impasse. During this period they continued to pay the applicant, as if she were not absent, but the applicant steadfastly refused to cooperate with the submission of a claim form under the income protection insurance policies held by the partnership. There is nothing in the Draft Reports or the Reports, whether expressly or by implication, which evidences a lack of good faith on the part of those partners who voted to compulsorily retire the applicant or that there was not real and genuine consideration given to whether or not the applicant should be compulsorily retired. The compulsory retirement provision in the Rules was, on the material before me, quite properly invoked and was exercised for a proper purpose.

108    The evidence overwhelmingly supports a conclusion that there was no failure by the partnership to exercise candour in its dealings with the applicant. The position is the very opposite. The evidence discloses that a transparent, caring and open process was extended to the applicant. The lack of candour was on the applicant’s part, but despite it, the partnership continued its efforts to achieve an outcome that would have seen the applicant remain within the partnership as a salaried partner who would be encouraged to work her way back to becoming a full equity partner. It was she who, for her own reasons, rejected this. It was she who wanted there to be a parting of their ways.

109    There is no capacity for a partner, under an expulsion clause such as cl 1.9 of the Rules, to undertake a merit based review of the decision of the requisite majority of partners to compulsorily retire him/her. This, in effect, is what the applicant is seeking.

110    There is no reasonable prospect in relation to all these matters that the applicant would be able to demonstrate to the contrary. Nothing in the affidavit of her solicitor, Mr Harris supports any reasonable prospect that this might be achieved.

Unlawful discrimination under the Australian Human Rights Commission Act 1986 (Cth)

111    The Court’s jurisdiction in the present case, in relation to the applicant’s claims for unlawful discrimination, is usefully summarised in Atieh v Civil Aviation Safety Authority [2012] FCA 1027 at [27]-[31]. It is unnecessary to repeat what I said in that case other than that for a right of relief to be available under s 46PO of the Australian Human Rights Commission Act 1986 (Cth), the applicant must demonstrate unlawful discrimination within the meaning of one of several acts: relevantly the Disability Discrimination Act 1992 (Cth) (the DD Act) or the Sex Discrimination Act 1984 (Cth) (the SD Act).

The disability discrimination claim

112    The applicant does not allege that she was suffering from a disability. Her case is based upon the respondents imputing to her a disability within the meaning of para (g) of the definition of disability in s 4(1) of the DD Act.

113    The applicant’s case is that the imputation was made by the respondents’ then solicitors, Clayton Utz, to her then solicitors, Deacons, by letter, dated 8 September 2008, and that it was repeated in the Draft Reports referred to above.

114    The applicant alleges that the disorder, illness or disease imputed to her was a mental, psychological or psychiatric disorder or illness which affected her state of mind in such a way that she was unable to perform her contractual and/or fiduciary duties as an employee, director or partner of the respondents.

115    I have repeated below, for contextual reasons, some of the background facts already set out above, relevant to Clayton Utz’s letter of 8 September 2008 and subsequent events, which bear on it.

116    Deacons, by letter, dated 24 July 2008, wrote to the partnership that the applicant was unfit to participate in any meeting with Hutchinson at that stage, which was five weeks after she had ceased to attend at the first respondent’s premises (19 June 2008), and that she would be absent from work for a further three month period.

117    Hutchinson, by letter dated 1 August 2008 to the applicant (copied to Deacons), informed the applicant that her partners were concerned about her ill-health, sent her their best wishes and requested her to let him know if there was any way that the partners could assist with her recovery. He also requested clarity regarding her capacity to perform client work from home and her anticipated return to work, as well as seeking information regarding the nature of her illness so that a specialist might be appointed to report on her capacity to perform work from home or her anticipated return to work.

118    Deacons, in response to Hutchinson’s letter to the applicant dated 1 August 2008, informed him, by letter dated 15 August 2008, that the applicant had a further appointment with her medical practitioner on 20 August 2008 and they would update him thereafter.

119    Hutchinson, by letter dated 1 September 2008, wrote directly to the applicant and requested general details regarding the nature of her illness so that a specialist could be appointed to examine her.

120    It was in response to Hutchinson’s letter dated 1 September 2008, that Deacons wrote to Clayton Utz by letter dated 1 September 2008, (two and a half months after the applicant had absented herself from the respondents’ offices) that they had been instructed by the applicant that the “nature of her personal illness is due to work-related stress caused by bullying and sexual discrimination”.

121    Clayton Utz’s letter of 8 September 2008 was written in response to Deacons’ letter dated 1 September 2008. In that letter, Clayton Utz said that the information from Deacons that the nature of the applicant’s personal illness was due to work-related stress caused by bullying and sexual discrimination indicated to it a “form of mental or psychological incapacity”. As a result of that characterisation, Clayton Utz indicated that the specialist the partnership required the applicant to attend was Dr Terace.

122    Deacons responded by letter dated 9 September 2008, to Clayton Utz’s letter dated 8 September 2008, and requested, inter alia, details of Dr Terace and his specialisation. Deacons did not comment, in that letter, upon Clayton Utz’s characterisation of the applicant’s illness, as indicated to it by the information provided by Deacons on 1 September 2008.

123    Clayton Utz, by letter dated 18 September 2008, informed Deacons that Dr Terace was a Consultant Psychiatrist.

124    Deacons, by letter dated 3 October 2008, inquired of Clayton Utz whether the partnership still required the applicant to attend the appointment with Dr Terace on 23 October 2012. No issue was taken by Deacons, in that letter, with the nature or identity of the specialist appointed by the partnership.

125    All that was said in the Draft Reports, which were not circulated to partners other than the Executive Committee, or to the directors of the second respondent, was that the partnership had initiated an appointment for the applicant to consult with a psychiatrist to enable him to assess her capacity to return to work. The Draft Reports also said that the applicant had been unwilling to satisfactorily explain or discuss the nature of her illness.

Imputing a disability

126    I generally accept the detailed written submissions by the respondents upon this issue. The question is whether the partnership imputed a disability to the applicant in that it formed the view that the applicant had a mental, psychological or psychiatric disorder or illness which affected her state of mind in such a way that she was unable to perform her contractual and/or fiduciary duties as an employee, director or partner of the respondents: para (g) of the definition of disability in s 4(1) of the DD Act; Zhang v University of Tasmania (2009) 174 FCR 366 at [14].

127    It is not enough for the applicant to show that the partnership imputed to her some disorder, illness or disease of some kind. The imputation must have been of a disorder, illness or disease that affected her thought processes, perception of reality, emotions or judgment, or that resulted in disturbed behaviour: para (g) of the definition of disability in s 4(1) of the DD Act; Varas v Fairfield City Council [2009] FCA 689 at [86].

128    I am satisfied from the documentary evidence, and in particular Clayton Utz’s letter of 8 September 2012, together with the evidence of Hutchinson, that the partnership had formed no view that the applicant had a disorder, illness or disease that affected her thought processes, perception of reality, emotions or judgment or that resulted in disturbed behaviour.

129    What the evidence establishes is that, despite considerable efforts by the partnership to ascertain the nature of the applicant’s “personal illness”, all that the partnership was told by Deacons was that “the nature of her personal illness is due to work-related stress caused by bullying and sexual discrimination”. Clayton Utz, in response, provisionally characterised the description by Deacons of her illness as one which “indicates a form of mental or psychological incapacity” and said, in effect, that the information was insufficient to enlighten the partnership as to the applicant’s condition. I accept that the sole purpose of this attempt to characterise the information provided by Deacons was to identify a medical specialist in the relevant field to which the partnership could refer the applicant for assessment as to what her illness, if any, was, and this because the partnership lacked knowledge of it.

130    Accordingly, the partnership took the reasonable step of requiring the applicant to be assessed by an expert. If the partnership imputed to the applicant a disability within the meaning of para (g) of the definition, upon receipt of Deacons’ letter dated 1 September 2008, I consider it unlikely that it would have then proceeded to refer the applicant to Dr Terace, as a Consultant Psychiatrist, for assessment: see Varas at [86]. The partnership’s purpose in requesting the applicant to attend upon Dr Terace was to gain insight into her condition, of which the partners were ignorant.

131    Significantly, no mention was made in the Reports that accompanied the Notices of Meeting, that the applicant had a disorder, illness or disease either that affected her thought processes, perception of reality, emotions or judgment or resulted in disturbed behaviour or at all. The Executive Committee said in the Reports in regard to the applicant’s condition that:

(a)    the partnership had received medical certificates that the applicant was unfit to attend work due to personal illness;

(b)    the partnership initiated an appointment for the applicant to consult with a medical practitioner for a report to be prepared by him for the partnership to assess the applicant’s capacity to return to work; and

(c)    the applicant had been unwilling to satisfactorily explain or discuss the nature of her illness and her prolonged absence from work.

Discrimination

132    Even if I were to find, and I do not, that the applicant has a reasonable prospect of establishing that the partnership imputed a disability to her, nonetheless, there is still an issue whether she has a reasonable prospect of establishing that she was discriminated against because of the imputed disability.

133    In Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92 at [213], Gummow, Hayne and Heydon JJ observed:

Section 5(1) of the Act [the DD Act] requires comparison between the treatment which the discriminator gives, or proposes to give, to the aggrieved person and the treatment that the discriminator would give, or would propose to give, to a person without the aggrieved person's disability "in circumstances that are the same or are not materially different". If that comparison reveals that the disabled person was treated less favourably, the further question which must be asked is whether that was because of the disabled person's disability. Section 5(1), therefore, requires equality of treatment between the disabled and those who are not. Attention is invited to how the discriminator "treats or would treat a person without the disability". The "comparator" identified by s 5(1) is "a person without the disability".

(Original emphasis.)

134    As their Honours went on to say in Purvis at [222]:

It may readily be accepted that the necessary comparison to make is with the treatment of a person without the relevant disability. Section 5(1) makes that plain.

135    The applicant must also establish a causal nexus between the disability allegedly imputed to her and the treatment of which she complains. That causal nexus is expressed in s 5 of the DD Act in the form of the discriminatory treatment being “because of” the disability.

136    Gummow, Hayne and Heydon JJ in Purvis at [236] made the following observations as to the construction of the words “because of” in s 5 of the DD Act:

For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed “because of” disability. Rather, the central question will always be — why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it “because of”, “by reason of”, that person’s disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression “because of”.

(Original emphasis.)

137    I do not accept the applicant’s submission that on the proper construction of s 5 of the DD Act, the comparator in this case is a fellow partner who has an impairment which may be different to the applicant’s, and who otherwise is in the same or similar circumstances to her.

138    I am satisfied that there is no reasonable prospect of the applicant establishing that she was treated less favourably than the partnership would have treated a person without the disability (for which the applicant contends), in the same or not materially different circumstances. The appropriate comparator is a partner, without the imputed disability, who was well behind the required productivity of a partner; absented themselves from the partnership offices and never returned; would not provide detailed reasons why they would not return to work at those offices; would not indicate if and when they would be returning to such work; and for all this to have continued for nearly 10 months during which time the partner was in receipt of full pay.

139    There is no reason to conclude, other than it is most likely that, in these circumstances, the comparator would have been subject to the compulsory retirement process by the partnership just as the applicant was. Moreover, that this was the likely outcome in such circumstances would have been an entirely reasonable course for the partnership to adopt.

140    The applicant has not provided any evidence of discrimination. Her case is mere assertion. The Reports, upon which the applicant relies as the basis for the decision of the partners to compulsorily retire her, indicates that the Executive Committee did not impute any disability to the applicant within the meaning of para (g) of the definition of disability in s 4(1) of the DD Act. It was her conduct in refusing to cooperate with the partnership as to disclosing the nature of her asserted illness, undergoing a specialist medical review, and when, if ever, she might return to work, which led the partnership to engage the compulsory retirement provisions of the Rules in relation to the applicant.

141    None of those matters could reasonably be characterised as falling with the statutory proscription. Accordingly, I find that there is no reasonable prospect of the applicant establishing that the respondents imputed a disability to the applicant within the meaning of para (g) of the definition of disability in s 4(1) of the DD Act, or that the applicant was discriminated against by the respondents.

142    The applicant’s claims based in the DD Act will be dismissed.

Sexual discrimination claim

143    The applicant further alleges that she was discriminated against by the respondents by reason of her sex, namely, that she is a woman, and/or by reason of a generally imputed characteristic of her sex, namely, that women are not capable of achieving the same results as men in a business environment: s 5(1) of the SD Act.

144    The applicant’s case that she was discriminated against is based upon the following conduct:

(a)    a letter, dated 25 September 2006, in which Hutchinson said, in relation to KPIs, which had been introduced during the 2006/2007 financial year for certain partners, including the applicant, that “short term non-achievement would not lead to direct financial penalty over and above [the partnership’s] set methodologies”;

(b)    in June 2008, the applicant was treated less favourably than any other equity partner of the partnership, the vast majority of whom were men, in that “her status was proposed to be reduced to that of a salaried partner” in circumstances where there was the practice and policy outlined in (a) above;

(c)    the demotion of the applicant was proposed to her by Hutchinson; and

(d)    no other equity partner of the partnership had ever been demoted, or proposed to be demoted on the ground of non-achievement.

145    The applicant does not rely upon being discriminated against on the ground of her sex in relation to the decision of the partners to compulsorily retire her.

Discrimination

146    In Purvis at [198], Gummow, Hayne and Heydon JJ, discussing an important respect in which the subject of disability discrimination differs from other forms of discrimination, observed that:

Central to the operation of the Sex Discrimination Act … is the requirement for equality of treatment. A central purpose of [the SD Act] is to require that people not be treated differently on the ground of sex ... Difference in sex … is identified … as a generally irrelevant consideration …

(Original emphasis.)

147    What Gummow, Hayne and Heydon JJ stated in relation to the DD Act in Purvis at [213] may be applied analogously to the SD Act. Section 5(1) of the SD Act requires comparison between the treatment which the discriminator gives to the aggrieved person and the treatment that the discriminator gives, or would give, to a person of the opposite sex "in circumstances that are the same or are not materially different".

148    If that comparison reveals that the aggrieved person was treated less favourably than a person of the opposite sex, the further question which must be asked is whether that less favourable treatment was “by reason of” one of the matters identified in s 5(1)(a)-(c) of the SD Act.

149    Accordingly, the relevant comparator identified in s 5(1) is simply a male partner in the partnership "in circumstances that are the same or are not materially different".

150    However, the applicant has not identified the circumstances upon which she relies in which the relevant comparison should be made for the purposes of her claim of discrimination under the SD Act.

151    The way it is put by the applicant depends upon the alleged “practice and policy” of the partnership that “non-achievement would not lead to direct financial penalty over and above its set methodologies” said by her to be evidenced by the letter dated 25 September 2006, from Hutchinson to her. I find that the applicant has misconstrued the content of this letter. Hutchinson merely stated that although the applicant, who had been identified as a partner for whom KPIs were required in the 2006/2007 financial year, her profit distribution would be calculated in the usual way, irrespective of whether or not she met the KPIs. Her failure to meet KPIs might result, in the usual way in which the profit distribution was calculated, in a lower profit distribution to her but no additional penalty would be applied because of her failure to meet KPIs. There is no evidence, nor does the applicant claim that any additional penalty was applied as a result of her failure to meet the KPI in relation to preparing a written future plan for her business division.

152    Moreover, I find that the engagement of the conferral process by the Executive Committee, commencing in December 2008, was not concerned with KPIs, which were only applied during the 2006/2007 financial year. The applicant knew this to be so at the time. The commencement of the conferral process with the applicant because of her, and her unit’s, underperformance during the 2007/2008 financial year was, in any event, not a penalty. It was part of the ordinary interaction between the Executive Committee and a partner who was underperforming. There is no suggestion by the applicant, either then or now, that the applicant’s gender had anything to do with the initiation of the conferral process by the Executive Committee. The applicant’s own notes of her meetings with members of the Executive Committee in relation to her underperformance bear this out.

153    The relevant circumstances applicable to a male comparator that would need to be the same, or not materially different from those of the applicant would include that she:

(a)    had been a partner/director for six years;

(b)    by the commencement of the 2006/2007 financial year, was experiencing performance issues;

(c)    was identified as one of a number of partners/directors for whom KPIs were required;

(d)    met her KPIs for the 2007 financial year, save for the finalisation of a written plan for her business unit;

(e)    underperformed significantly in the 2008 financial year during which year KPIs were not operating, and became subject to the Executive Committee’s conferral process for partners with performance issues;

(f)    over a six month conferral process, her performance continued to deteriorate alarmingly; she was unable to propose any meaningful solution for it; and was unable to finalise a written plan for her business unit.

154    The position of salaried partner was proposed to the applicant as a possible solution to her, and her unit’s, under-performance in the 2008 financial year. She could accept or reject the proposal. She rejected the proposal and it was not implemented.

155    I do not consider that there is a reasonable prospect of the Court finding that the Executive Committee, in making a proposal to an embattled partner of six years’ standing, that she should consider agreeing to becoming a salaried partner, in order to resolve her performance issues, while still remaining in the partnership, was, in the circumstances set out above, treatment discriminating against her.

156    I accept the partnership’s submission that a proposal by the National Chairman of partners to a partner, in the conferral process, as a solution to a partner’s performance issues, which the partner may accept or reject or explore further with the Executive Committee, cannot be characterised as “treatment” for the purposes of the SD Act. There is no evidence that such a proposal would not have been made to a male partner in the same or similar circumstances. There is no evidence that the proposal was made by reason of the sex of the applicant, who had already, by that time, been a partner for six years. She was, as a matter of fact, substantially underperforming. This was not a case of imputing to her some inability to perform because of any aspect of her sex. There is no suggestion that any part of the conferral process was initiated or maintained by reason of her sex. The documents, including the applicant’s notes of the meetings, demonstrate this to be so.

157    The applicant’s own note of the relevant meeting on 12 June 2008 was prepared 3 days later, on 15 June 2012. It records an unexceptional conversation between members of the Executive Committee of a national firm of accountants and a partner who is underperforming. The applicant records that the Executive Committee was focussing on identifying solutions for the applicant’s predicament and its concern about her well-being. Nonetheless, this is the meeting at which the applicant alleges that she was discriminated against because of her sex. Her note makes no mention of any discussion in relation to her sex, or any characteristic of her sex, or that she made any complaint that she was being discriminated against by reason of her sex. Nor is it evident otherwise that such was the case.

158    The applicant’s note records the proposed “demotion”, which she alleges was proposed to her by Hutchinson and constituted the discriminatory conduct, as follows:

(a)    Hutchinson stated that the partners would not accept her 2008/2009 budget and would have to look at other options to meet the “Business Case”. There was a lengthy discussion about the applicant’s performance and her options to meet the “Business Case” required of a partner;

(b)    There was then a discussion about the applicant becoming a salaried partner, which she said was not acceptable to her;

(c)    the applicant told the members of the Executive Committee that she “understand[s] the operational issues” being discussed at the meeting;

(d)    Hutchinson told her, amongst other things, that “the results are not good”; and that she was “never in the office”. She sought to persuade them that she was out and about getting new work. She became upset and was teary. She asked them to ignore her tears which she said were “a reflection of (her) attachment to the organisation”;

(e)    there was a discussion about the position of a salaried partner. Hutchinson told her that this position was seen as no different to the outside world and that the staff need not know. She disagreed with this;

(f)    the applicant asked whether the “Salaried Partner role [was] an Offer or an Option” and was told by Hutchinson that “it’s an Option”. He also communicated to her that he had a responsibility for partners’ welfare, and of his concern that it could not be easy for her with the pressure of running a practice and working hard;

(g)    the applicant then said:

“There’s another option we need to consider and that’s where I would rather we part company”

to which the applicant recorded the response of Hutchinson and Heggie as being:

“Raised their eyebrows, sat back and said “no, that’s not an option we’re prepared to discuss. You’ve got your team … for the future” ...?

159    The solution Hutchinson was striving for, one option for which was the position of salaried partner, was one that embraced the applicant remaining in the firm with a realistic and achievable business plan for herself and her unit’s team members.

160    There was another meeting between the applicant, Hutchinson and Heggie the following day, 13 June 2008. The applicant also made a note of this meeting, although it appears to have been prepared 2 weeks after the meeting. Again, the applicant recorded that the discussion commenced with the performance issues confronting the applicant and possible solutions for 2008/2009 but disclosed that the budget did not meet the “Business Case”, there being insufficient profit. The applicant then recorded that Hutchinson said to her that she should “Rebuild as a Salaried Partner” to which she responded: “I thought you said the Salaried Partner role was an Option, not an Offer”. She then recorded that Hutchinson responded with “Correct”; and that a little later she said: “Now let’s revisit the other option we discussed yesterday where we part company”.

161    There is no mention in the applicant’s note that she complained to Hutchinson and Heggie that, in putting the option of the salaried partner role to her, they were discriminating against her by reason of her sex or a generally imputed characteristic of her sex. The discussions between the applicant and Hutchinson and Heggie, as recorded by the applicant in her own notes of the meeting, demonstrated that the thrust of these conversations concerned the lack of performance by her and her unit and that they were not meeting budget expectations.

162    Not long after this, there was yet another meeting between the applicant, Hutchinson and Heggie on 19 June 2008. The applicant also made a note of this meeting. The applicant recorded that the meeting commenced with her describing her understanding of the agenda. Everyone agreed that her understanding was correct. It was to discuss the composition of her team; the applicant’s business case and budget and lastly the “Option” for her becoming a salaried partner. Her notes disclose that Hutchinson and Heggie emphasised that the budget disclosed a net revenue shortfall of $300,000. She sought to explain that these budget figures were an underestimate. She then agreed that her budget was deficient to that extent. As to this topic her notes conclude in this way:

“Gaff[ney] – [c]onceded – ask that this budget (of mine) does not get me there. It meets 45% GM/25% net profit BUT NOT enough profit. I understand that”.

163    The last topic discussed at this meeting on 19 June 2008 was the option of the applicant becoming a salaried partner. Her note recorded that:

although I presented a budget which we had discussed, we had determined that that budget still did not make sufficient profit to support the business case required. From there we discussed about “investment” and whether I was prepared to become a Salaried Partner.

Nonetheless, the applicant sought to persuade Hutchinson and Heggie that she could meet the required budget.

164    The applicant then recorded in her note that Hutchinson and Heggie “kept emphasising that, as a Salaried Partner I could sit around the table and in years to come (3-4 years to come) once I had rebuilt the practice then I could be made a full equity partner again”. The applicant noted that she told them she did not want to be a salaried partner. Hutchinson said, as she notes, that “as Chairman of the day” he had to do what was in the best interests of all partners. Her note records that Hutchinson asked her four or five times whether she was saying “no” to becoming a salaried partner. She said she did not want to be a salaried partner. Her last recorded note was that she exit the partnership in a positive, harmonious manner with everyone’s reputation intact. Hutchinson then suggested that steps be taken with the partnership’s Human Resources Manager to achieve that end. This note is quite contrary to any case of discrimination against the applicant by reason of her sex or that the applicant’s gender played any role in the approach of the Executive Committee in the conferral process with the applicant. I accept the submission put on behalf of the partnership that objectively the note evidences the conciliatory and sympathetic attitude of the Executive Committee to a partner whose performance had sunk well below the required standard and who was unable, at the time, to satisfy it that she had any remedial to raise her performance and that of her business unit.

165    The applicant’s submission to the partners in relation to the resolution for her compulsory retirement from the parnership made no mention of any sex discrimination.

166    I find that there is, therefore, no reasonable prospect of the applicant establishing that she was discriminated against by reason of her sex and/or by reason of a generally imputed characteristic of her sex. There was no mention, by the applicant or the respondents, in the conferral process, of any matter relating to the applicant’s gender. The applicant has not provided any evidence of discrimination. It is mere assertion in the CASOC.

167    If this or similar circumstances had applied to a male comparator I find it highly likely that he too would have been subject to the same compulsorily retirement process.

168    The claims of the applicant based in the SD Act will be dismissed.

Orders

169    Accordingly, for all these reasons, there will be summary judgment against the applicant pursuant to s 31A of the FCA Act in relation to the parts of the proceeding pleaded in the following paragraphs of the Consolidated and Amended Statement of Claim:

(a)    paras [17]-[21] (the disability discrimination claim);

(b)    paras [22]-[35] (the partnership claim); and

(c)    paras [36]-[38] (the sex discrimination claim).

Each of these claims will be dismissed.

170    The applicant should pay the respondents’ costs of the interlocutory application dated 2 November 2012.

Associate:

Dated:    5 July 2013