Brown v Deloitte Touche Tohmatsu

Introduction 1 The applicant, Mr Brown, commenced this proceeding by filing an originating application and a statement of claim on 21 July 2020. The claims that he asserts relate to the circumstances in which he left his position of Risk and Reputation Leader at Deloitte Onch Audit LLC, based in Mongolia, and, on 16 June 2014, entered into a deed whereby he became a non-equity partner (or salary partner) of the first respondent, Deloitte Touche Tohmatsu, in Australia. The second respondent, Mr Deutsch, is pleaded to be a partner of Deloitte Touche and its chief executive officer. 2 The material circumstances of Mr Brown leaving Deloitte Onch and joining Deloitte Touche as a partner include that he was at that time 58 years of age and, unbeknown to him, Deloitte Touche has had a retirement policy since about November 2013 that requires partners to retire in or around May following their 62nd birthday. Although it is not currently pleaded, Mr Brown says that he did not learn of the existence of that retirement policy until January 2019. Also not yet pleaded, but common ground, is that Mr Brown remains a partner of Deloitte Touche notwithstanding that he is now 64 years of age. He does not, however, accept that he is unaffected by the retirement policy notwithstanding that he has not (yet) been made to retire under it. As will be seen, he pleads disadvantage or prejudice as a consequence of the existence of the policy and its possible application to him. 3 Mr Brown asserts five causes of action, namely: (1) a first claim of misleading and deceptive conduct under s 18 of the Australian Consumer Law (ACL) as found in Sch 2 to the Competition and Consumer Act 2010 (Cth) relating to alleged "longevity representations" made by Deloitte Touche prior to him joining Deloitte Touche as a partner; (2) a second claim of misleading and deceptive conduct under s 18 of the ACL relating to "Rio Tinto representations" allegedly made by Deloitte Touche to a prospective client, Rio Tinto; (3) a claim of direct discrimination under the s 14 of the Age Discrimination Act 2004 (Cth) (AD Act) of Mr Brown by Deloitte Touche during his ongoing tenure as partner; (4) a claim of indirect discrimination under the s 15 of the AD Act of Mr Brown by Deloitte Touche during his ongoing tenure as partner; and (5) a claim of victimisation under s 51 of the AD Act against both Deloitte Touche and Mr Deutsch relating to a conversation between Mr Brown and Mr Deutsch. 4 Deloitte Touche applies by interlocutory application to strike out the first, second and fourth causes of action as failing to disclose a reasonable cause of action or otherwise being an abuse of the process of the court with reference to r 16.21(1)(e) and/or (f) of the Federal Court Rules 2011 (Cth). 5 Since the filing of the strike out application, Mr Brown has indicated that he does not intend to press the indirect discrimination cause of action (i.e. the fourth cause of action identified above) and that he will amend the statement of claim accordingly. It is appropriate that he is given leave and directed to make that amendment. Nothing more need be said about that cause of action. 6 It is convenient to deal with each of the remaining causes of action which are the subject of the strike out application separately. Both those causes of action plead misleading and deceptive conduct under the ACL. The relief that is sought in respect of them is set out in paragraph 43 (i.e., [SOC 43]) of the statement of claim as arising under ss 236 and 237 of the ACL as follows: a) Compensation for the loss and damage suffered by the Applicant. Particulars i) Economic loss, as set out in paragraph 27 above. ii) Non-economic loss for anxiety, distress and potential loss of reputation and embarrassment, as set out in paragraphs 27 and 42 above. b) Interest. c) Costs. d) Any other order the Court thinks fit.

First misleading and deceptive conduct cause of action: longevity representations

The pleading 7 The relevant material elements of this cause of action as pleaded in the statement of claim are the following: (1) Mr Brown was approached by Deloitte Touche in September 2013 with regard to the possibility of him joining the partnership. [SOC 11] (2) Thereafter a number of meetings and conversations took place between Mr Brown and Deloitte Touche with a view to him becoming a partner, which culminated in him becoming a partner, as I have said, on 16 June 2014. [SOC 6, 12-17] (3) At no stage during the meetings and conversations leading up to Mr Brown becoming a partner of Deloitte Touche, was Mr Brown informed of the retirement policy or that it was likely that he would be required or expected to retire as a partner in accordance with the retirement policy. [SOC 19] (4) In the circumstances pleaded, in the period leading up to Mr Brown becoming a partner of Deloitte Touche, Deloitte Touche made the "longevity representations" to Mr Brown, namely: (a) that he would not be required or expected to retire from the partnership in the short or medium-term, being a period of at least 10 years; and/or (b) that he would not be required or expected to retire from the partnership as a result of reaching a certain age. [SOC 22] (5) The longevity representations were made in trade and commerce for the purposes of s 18 of the ACL, they were with respect to a future matter for the purposes of s 4 of the ACL, they were misleading or deceptive, or likely to mislead or deceive, and were made in contravention of s 18 of the ACL. [SOC 23-25] (6) In reliance on, and induced by, the longevity representations, Mr Brown: (a) terminated his secure position with Deloitte Onch; and (b) joined Deloitte Touche as a partner. [SOC 26] (7) In the premises, and by the conduct of Deloitte Touche in making the longevity representations, Mr Brown has suffered and will continue to suffer loss and damage. [SOC 27] 8 Beneath [SOC 27] are set out a number of particulars to that paragraph. Mr Brown has indicated his intention to make slight amendments to those particulars. It was thus accepted that the strike out application should be determined with reference to the intended particulars. It is necessary to set them out in full: i. The Applicant gave up his position with Deloitte Onch Audit LLC in order to take up a partnership with the First Respondent, which position will come to an end if the Retirement Policy is applied to him or if he is otherwise required to resign because of his age, or if he leaves because of the First Respondent's conduct in requiring or expecting him to retire on account of his age. ii. The Applicant will contend that, at the time that he joined the First Respondent, he had a secure position with Deloitte Onch Audit LLC, but was at that time looking to move into a suitable and secure position with another member firm of Deloitte Global, and was prepared to accept a reduction in his net salary as part of any such move. iii. The Applicant will further contend that, at the time that he joined the First Respondent, but for the Longevity Representations, he would have remained with Deloitte Onch Audit LLC until he obtained a suitable position with another member firm of Deloitte Global, and presently estimates his economic loss as a result of joining the First Respondent, as compared with that counterfactual position, as follows: A. the Applicant would have remained with Deloitte Onch Audit LLC for a further 18 months until 31 December 2015; B. the Applicant calculates the drop in his net earnings as a partner of the First Respondent over that 18 month period, as compared with his net earnings with Deloitte Onch Audit LLC over that same 18 month period, as approximately A$525,000, or a grossed up loss of A$809,000; C. the Applicant would then have obtained a suitable position with another member firm of Deloitte Global, at a salary at least equivalent to his earnings with the First Respondent, leading to a revenue neutral position while the Applicant remains with the First Respondent; D. if the Applicant is forced to retire from the First Respondent with effect from 30 June 2021, or if he leaves because of the First Respondent's conduct, as compared to being able to continue working with another member firm of Deloitte Global at a salary at least equivalent to his earnings with the First Respondent, the Applicant's loss from 1 July 2021 will be $750,000 per annum, and continuing until at least 30 June 2024, when the Applicant would be almost 68 years of age. iv. In addition, the Applicant has suffered mental anguish, anxiety, distress and potential loss of professional reputation and embarrassment as a result of being misled by his partners regarding the existence of any Retirement Policy or any requirement or expectation that he would retire at a certain age, and as a result of the proposed application to him of the Retirement Policy, as set out in particular iii to paragraph 71(g), and as a result of the failure to disclose that Policy to him prior to him joining the First Respondent and the failure to disclose to him that he would be required or expected to retire as a partner on account of his age.

The submissions 9 Deloitte Touche's submission is that Mr Brown in particular (iii)(B) identifies as an element of his loss and damage a loss of AU$809,000 in the 18-month period from when he left Deloitte Onch to when he would otherwise have remained at Deloitte Onch had he not left and joined Deloitte Touche. That period commenced on 16 June 2014 which is when that loss accordingly began to occur and the cause of action thus accrued, which is more than six years before the proceeding was commenced in July 2020. On that basis, Deloitte Touche submits that Mr Brown's cause of action is statute barred under ss 236(2) and 237(3)(a) of the ACL which provide that actions for damages under s 236(1) and applications for statutory compensation and other orders under s 237(1), respectively, may be commenced at any time within six years after the day on which the cause of action that relates to the conduct accrued. 10 Deloitte Touche also points to particulars (i) and (iii)(D) which refer to future events that may or may not occur, being if the retirement policy is applied to Mr Brown or he is otherwise required to resign because of his age, or if he leaves Deloitte Touche because of its conduct in requiring or expecting him to retire on account of his age. Deloitte Touche submits that those averments cannot be relied on independently of the averments with respect to the loss already suffered (being that which was suffered more than six years prior to the commencement of the proceeding) because it is all prospective loss and, on the authority of Wardley Australia Ltd v State of Western Australia [1992] HCA 55; 175 CLR 514, prospective loss is not loss or damage within the meaning of ss 236 and 237 such as to be a basis for relief. 11 Mr Brown submits that it will not be until the case is ready for final hearing that the Court can be fully informed about the loss sustained by him as a result of the misleading conduct. He also submits that his loss only "crystallised" once Deloitte Touche decided that it would apply the retirement policy to him - it only being then that it became apparent that his position as a partner would end prematurely, either by him being required or expected to retire on account of his age or as a result of him no longer being prepared to remain as a partner as a result of becoming aware of the misleading or deceptive quality of the longevity representations and the subsequent attempts to require him to retire on account of his age. 12 Mr Brown also submits that the non-economic loss particularised in particular (iv) only crystallised or commenced when in January 2019 Deloitte Touche indicated that it intended to apply the retirement policy to him.

Consideration 13 Mr Brown is quite right to emphasise that it is generally undesirable that limitation questions be decided on an interlocutory basis, such as in a strike out application, "except in the clearest of cases": Wardley at 533 per Mason CJ, Dawson, Gaudron and McHugh JJ and 558-559 per Toohey J. The reason is that in such proceedings insufficient is known of the damage sustained by the applicant and of the circumstances in which it was sustained to justify a confident answer to the question. There are many other authorities in which these points have been emphasised. It is not necessary to canvass them. 14 Mr Brown is also quite right to emphasise that the power to strike out pleadings should be employed sparingly and only in a plain and obvious case, where it is obvious that no reasonable amendment could cure the alleged defect and there is no reasonable question to be tried: Polar Aviation Pty Ltd v Civil Aviation Safety Authority [2012] FCAFC 97; 203 FCR 325; at [42]-[44] per Perram, Dodds-Streeton and Griffiths JJ. 15 I am not satisfied that the misleading and deceptive conduct cause of action based on the "longevity representations" should be struck out. That is on account of the following considerations. First, despite some problems with the way in which the cause of action has been pleaded, which I will come to, I am not satisfied at this stage that the cause of action is bound to fail or that in its current form it amounts to an abuse. Secondly, the question of when a cause of action for breach of s 18 of the ACL accrues, and in particular when loss or damage crystallises, can be complex and will depend on the evidence that is ultimately adduced and the factual findings that are made. Thirdly, even if the question of limitation is not left for decision only at the trial in due course, it is premature for it to be decided at this strike out stage. I will elucidate these considerations. 16 The principal problem with the way in which the cause of action is pleaded is that Mr Brown has identified his loss and damage in the particulars to [SOC 27] in an inconsistent way. On the one hand, he poses a counterfactual in particulars (iii)(A)-(C) which has as its inarticulate premise that but for the longevity representations he would not have left Deloitte Onch and entered into the partnership deed with Deloitte Touche. That is to say, it is a "no transaction" case. Necessarily, and as indicated in his particulars, that case envisages his loss as commencing when he left Deloitte Onch, which was more than six years before he commenced the proceeding. However, on the other hand he poses a case in particulars (i) and (iii)(D) that depends upon events in the future, namely whether he is forced to retire earlier than he would otherwise have done or he chooses to leave on account of the way in which he has been treated. With reference to those particulars, it is not clear that he has yet suffered any economic loss at all, although the non-economic loss that he has particularised commenced when he learnt that there was a retirement policy and that it was intended that it be applied to him. 17 With regard to the crystallisation of the cause of action under s 18 of the ACL, the following was said in Karedis Enterprises Pty Ltd v Antoniou [1995] FCA 463; 59 FCR 35 at 45F per Sackville J about the decision of the High Court in Wardley: The reasoning of the Court does, however, support the proposition that, at least in the case where the disadvantageous character of a transaction cannot be ascertained at the outset, a loss is not sustained until the plaintiff or applicant ascertains, or has the means available to ascertain, that he or she has been prejudiced by entry into the transaction. 18 In that regard, in Wardley at 527 the majority said the following: When a plaintiff is induced by a misrepresentation to enter into an agreement which is, or proves to be, to his or her disadvantage, the plaintiff sustains a detriment in a general sense on entry into the agreement. That is because the agreement subjects the plaintiff to obligations and liabilities which exceed the value or worth of the rights and benefits which it confers upon the plaintiff. But, as will appear shortly, detriment in this general sense has not universally been equated with the legal concept of "loss or damage". And that is just as well. In many instances the disadvantageous character or effect of the agreement cannot be ascertained until some future date when its impact upon events as they unfold becomes known or apparent and, by then, the relevant limitation period may have expired. To compel a plaintiff to institute proceedings before the existence of his or her loss is ascertained or ascertainable would be unjust. Moreover, it would increase the possibility that the courts would be forced to estimate damages on the basis of likelihood or probability instead of assessing damages by reference to established events. In such a situation, there would be an ever-present risk of undercompensation or overcompensation, the risk of the former being the greater. 19 See also Karedis at 40-42 per Burchett and Hill JJ, Jaldiver Pty Ltd v Nelumbo Pty Ltd [1992] FCA 906; (1993) ATPR (Digest) 46-097 at 53,403-4 per Heerey J; CAJ Investments Pty Ltd v Lourandos [1996] FCA 88; 83 FCR 189 at 202 per Lee, Sackville and Finn JJ; MGICA (1992) Ltd (Formerly MGICA Ltd) v Kenny & Good Pty Ltd [1996] FCA 766; 140 ALR 313 at 374-377 per Lindgren J; Bodycorp Repairers Pty Ltd v Holding Redlich [2018] VSCA 17 at [181(2)] per Whelan and Santamaria JJA and T Forrest AJA. 20 The point for present purposes is that it may be that Mr Brown's cause of action did not crystallise until he became aware of the disadvantageous character of the transaction that he concluded, i.e., the partnership deed, and was able to ascertain that he had been prejudiced. That would be at the same time that he began to suffer the non-economic loss pleaded in particular (iv). Prospective economic loss, notwithstanding the difficulties in its assessment as referred to in Wardley, would then be claimable. 21 There is another reason why it is premature to make an assessment at this stage whether the cause of action is bound to fail. That is because it may be that once limitation is pleaded in a defence by Deloitte Touche, Mr Brown will plead something in reply by which the limitation is avoided. In that regard, senior counsel for Mr Brown submitted that there is a "realistic possibility" that if the limitation point was pleaded in defence by Deloitte Touche, Mr Brown will plead that there had been a "material concealment of the existence of the policy" such as to avoid limitation. Naturally, I assume that there is a proper basis to that submission. I also appreciate that the complete basis for such a reply may not become available until after discovery. It may also be that in reply to a limitation defence in which Deloitte Touche identifies when it says that Mr Brown's cause of action accrued, he pleads facts which if proved will establish that it accrued at a later time and within six years of the proceeding having been commenced. 22 Those considerations with regard to the pleadings show why it is generally premature to deal with limitation at this stage - the defence of limitation should first be pleaded, and any reply to the defence should also be pleaded, whereafter the metes and bounds of the issue can be properly identified and it can be assessed whether the limitation issue should ultimately be dealt with only at trial or whether it should be dealt with earlier whether by way of summary dismissal or a separation of issues. 23 In view of the repeated cautions in the authorities, it is a bold respondent who seeks to strike out a cause of action on the basis of limitation before the limitation defence has even been pleaded. In my view, notwithstanding the cogency of some of its criticisms of the way in which Mr Brown's longevity representations cause of action has been particularised, there is insufficient justification for acceding to Deloitte Touche's application to strike out the cause of action at this stage.

Second misleading and deceptive conduct cause of action: Rio Tinto representations

The pleading 24 The following are the essential elements of Mr Brown's pleaded cause of action based on the Rio Tinto representations: (1) In or about July 2018 (i.e. four years after Mr Brown joined Deloitte Touche and in the month of his 62nd birthday), Rio Tinto invited proposals to do its global internal audit work which was to commence sometime in the 2019 financial year and continue for a period of five years. [SOC 28, 34] (2) Deloitte Touche prepared a tender proposal in response to Rio Tinto's invitation. Mr Brown was part of the Deloitte Touche bid leadership team and was presented in Deloitte Touche's proposal, which was dated 4 October 2018, as being heavily involved in the work for Rio Tinto in the event that Deloitte Touche won the appointment. [SOC 29-32] (3) Deloitte Touche was successful in securing the Rio Tinto appointment, but at no stage during the tender process or during the period leading up to Deloitte Touche securing the appointment did Deloitte Touche inform Rio Tinto that Mr Brown would shortly be required or expected to retire from Deloitte Touche and would therefore not be likely to be involved in the Rio Tinto internal audit work for the five-year period of that work in the ways presented in the proposal. [SOC 33, 35] (4) In the circumstances pleaded, Deloitte Touche represented to Rio Tinto that Mr Brown:: (a) would take a lead role in delivering the Rio Tinto internal audit work for its five-year duration; (b) would undertake the work and roles for which he had been presented as undertaking for the five-year duration of the work; and/or (c) would not be required nor be expected to retire from the partnership as a result of reaching a certain age during the five-year duration of the work. [SOC 36] (5) The Rio Tinto representations were made in trade and commerce for the purposes of s 18 of the ACL, they were representations with respect to future matters for the purposes of s 4 of the ACL, and they were misleading and deceptive, or likely to mislead or deceive, and were made in contravention of s 18 of the ACL. [SOC 37-39] (6) As a result, Rio Tinto and its senior executives believed that subject to the normal vicissitudes of a commercial relationship, Mr Brown would take a lead role in delivering the Rio Tinto internal audit work for the five year duration of that work and/or he would undertake the work and roles in respect of which he had been presented. [SOC 40-41] (7) In the premises, and by the conduct of Deloitte Touche in making the Rio Tinto representations, Mr Brown has suffered and will continue to suffer loss and damage. [SOC 42] 25 Beneath [SOC 42] the following particulars to that paragraph are set out: The Applicant has developed strong and successful professional relationships with senior executives of Rio Tinto, including relationships that existed before the Applicant commenced with the First Respondent, and before Deloitte won the Rio Tinto Internal Audit Work. The Applicant has continued to work with senior executives of Rio Tinto since Deloitte was awarded the Rio Tinto Internal Audit Work. The Applicant has suffered and will continue to suffer distress and anxiety as a result of the fact that he is not able to be open and honest with Rio Tinto and the senior executives of Rio Tinto with whom he has worked and works about the period of time that he is likely to remain with the First Respondent and performing the Rio Tinto Internal Audit Work so as to potentially reflect poorly on the Applicant's reputation, credibility and perceived integrity. Further, the Applicant encouraged and persuaded one of the First Respondent's staff, Tom Gale, to relocate to Mongolia, as subsequently occurred, on the basis that the Applicant expected to spend 50% of his time in Mongolia for the five years of the Rio Tinto Internal Audit Work, and that has provided a further source of distress and anxiety for the Applicant.

The submissions 26 Deloitte Touche's principal criticism of the cause of action, at least in the way in which it has been pleaded, is that there is no articulation of how the pleaded representations, through the belief of Rio Tinto and its senior executives, caused, or causes, Mr Brown's professed "distress and anxiety". It is said that any distress and anxiety felt by Mr Brown is something idiosyncratic to him and cannot be said to have been caused by what is pleaded to have been represented to Rio Tinto; it is pleaded that the distress and anxiety is as a result of the fact that Mr Brown "is not able to be open and honest with Rio Tinto" but that restriction on him is not pleaded to have been caused by the representations and cannot reasonably or logically be caused by the representations. It is not said that Mr Brown is prevented by Deloitte Touche from telling Rio Tinto the true position, contrary to the representations. 27 Deloitte Touche also points out that by the bringing of this proceeding, and widespread coverage of it in the media, Rio Tinto inevitably knows the true position which rather calls into question the professed "distress and anxiety". To the extent that there is a difference between what was represented to Rio Tinto and the true position, that may be a reflection on Deloitte Touche but would not be a reflection on Mr Brown. It is therefore said that that cannot be the source of the distress and anxiety. 28 It was submitted on behalf of Mr Brown that the distress and anxiety is caused by the representations by them causing a belief in Rio Tinto which is not in accordance with the true position, and Mr Brown cannot reveal the true position to Rio Tinto because of his obligations to Deloitte Touche. It is said that there is a conflict between his moral and ethical obligations, on the one hand, and his professional obligations on the other - he feels he has obligations to be both open and honest with Rio Tinto and protect the interests of Deloitte Touche by not revealing the true position to Rio Tinto. That conflict is the cause of the distress and anxiety.

Consideration 29 Senior Counsel for Mr Brown rightly accepted during the course of argument that there is a step in the chain of causation that has not been pleaded, being Mr Brown's position of conflict referred to above. That much can be accepted, but it may not be enough. The reason for that is that on the authorities although the focus must be on causation, not reliance, it may be that it is necessary that someone - relevantly, Rio Tinto or its senior executives - relied on the representations, and no reliance has been pleaded. All that is pleaded is that they believed the representations, but not that they relied on them. 30 For example, in Re HIH Insurance Ltd [2016] NSWSC 482; 335 ALR 320, Brereton J (at [56]) in dealing with indirect causation in a misleading and deceptive conduct case said that it is not necessary that the applicant prove that it relied on the contravening conduct, but the applicant must establish that somewhere in the chain of causation someone relied on the contravening conduct - in other words, that someone was misled or deceived, and that such deception brought about the prejudice to the applicant. His Honour said that unless someone in the chain of causation is deceived, it cannot be said that the ultimate loss to the applicant is "by conduct of" the respondent because the conduct would be immaterial to the ultimate loss unless it impacted somehow on the causative process. The words "by conduct of" are taken from s 82(1) of the Trade Practices Act 1974 (Cth). Their equivalents in ss 236(1) and 237(1) of the ACL are "because of the conduct of". There is no material difference in that different wording. 31 More recently in TPT Patrol Pty Ltd as trustee for Aimes Superannuation Fund v Meyer Holdings Ltd [2019] FCA 1747; 140 ACSR 38, Beach J (at [1656]-[1660]) identified two subcategories of indirect or intermediary causation. Both subcategories require that a third party is induced into some reaction by the contravening conduct, and in that sense both require that the third party relied on the contravening conduct. It is true that in Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; 238 CLR 304 at [143] per Gummow, Hayne, Heydon and Kiefel J it was said that reliance is not a substitute in this context for the essential question of causation, but it is still necessary to show that the contravening conduct caused some reaction in someone which in turn caused the loss to the applicant. 32 In any event, it is not necessary at this stage to be decisive on the point. It is clear that the cause of action does not adequately plead the mechanism of causation. It may be that that can be remedied by amending the particulars to [SOC 42], although it seems to me that it would be better to amend the text of [SOC 41] and/or [SOC 42], depending on how it is that the deficiency can be remedied. It may be that it cannot be. It is difficult to see how the pleaded representations to Rio Tinto could have caused Mr Brown any loss or damage even if Rio Tinto had relied on the representations. 33 In the circumstances, the best course is to strike out the whole of the cause of action. If Mr Brown is able to cure the deficiency he can apply for leave to reintroduce the cause of action in an amended form. That application will be the occasion to determine whether the deficiency has indeed been cured and that the cause of action is viable.

Costs 34 I intend hearing the parties on costs, and will therefore reserve the costs in the meanwhile. In case it is of assistance, my inclination at this stage is that in view of the mixed success of the parties and the desirability of avoiding the incurring of costs in the determination of costs, the costs of the application should be costs in the ultimate cause. That is to say, that there be no order on costs in the interlocutory application. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart.