It illustrated these observations by the provision of examples
33 In that case, the Court was concerned with a communication that passed between two workmen (instructions given by a foreman to another employee). It was treated as an internal communication by one employee to another and the conduct did not constitute a contravention of s 52.
34 I now move to the claims that rely on the CRA. Again, there are two reasons advanced for the inevitable failure of these claims.
35 First, the claims have not been brought within the temporal prescriptions of s 16. It is also said that the claims fall outside the scope of the CRA. Section 6(2) precludes the granting of any relief to a person where "the contract was entered into in the course of or for the purpose of a trade, business or profession carried on by the person". It is said that an agreement which brings about an end of a person's contract of employment and making provisions for any rights and obligations which may survive its termination would fall within s 6(2).
36 The claim sought to be advanced in paragraphs 27A - 30 was not addressed by the other parties in the written submissions and the supplementary oral submissions made in chief. I shall return to these matters in due course.
37 It is said that the claims brought against the third defendant must also fail by reason of the Deed of Release. Additional reasons for failure were also advanced.
38 In the case of the claim for breach of duty, it is said that it is an abuse of process and bound to fail. For present purposes, it is unnecessary to go into the detail of what is said in support of these matters. In the case of the claim of alleged misconduct in public office, it is said that this must fail because all elements of the tort of misfeasance in public office cannot be made out. The elements were identified by Deane J in Northern Territory of Australia v Mengel (1995) 185 CLR 307. Briefly, it is said that the third defendant was not a public officer and that what was allegedly done was not performed in the purported discharge of public duties. It is said that what was done arises from a purely private relationship (a contractual relationship between an employer and employee).
39 The remaining claims were also challenged on a pleading basis (that they were embarrassing). The view is taken that these problems may have been addressed by the amendments put forward in the amended statement of claim. Accordingly, those arguments are not presently pressed.
40 The other defendants adopt what has been said on behalf of the three defendants. The pleading arguments are no longer pressed.
41 In response, the plaintiff originally provided a brief written outline. This writing was supported by lengthy oral submissions.
42 Largely, what was dwelt upon was the inappropriateness of the granting of summary dismissal in the circumstances of the present case and the discretionary aspects of the remedy. The thrust is that there remains significant unresolved questions of law and fact incapable of determination at an interlocutory hearing.
43 The oral submissions made on behalf of the plaintiff continued into Wednesday 11 June 2008. On that day, counsel handed up detailed written submissions of considerable length. These written submissions were embodied in a document headed "Outline - Oral Submissions of Plaintiff" ("the Outline").
44 I shall briefly mention certain of the specific submissions that were made in respect of the statutory claims.
45 In the case of the FTA and TPA, the submissions are to be found in paragraphs 6 - 9 of the Outline. It was stressed that the process alleged that the relevant conduct occurred in trade or commerce. Attention was drawn to the particulars provided in the process and to the allegation that the termination of employment took place in the course of the outsourcing of work to Pearsons. Also, it was sought to draw a distinction between the meaning to be attributed to the phrase in the respective contexts of s 51AA and s 52
46 In the case of the CRA, the submissions are to be found in paragraph 9 of the Outline. The paragraph contains, inter alia, the following:
"9. The CRA case for dismissal is likewise supportable. As for the limitation point either section 16(b) for (c) applies. No 'obligation under' the DOR has yet arisen, as no plea in bar has been pleaded as contemplated by clause 3(f) of the DOR, or alternatively time commenced when the NOMs for a dismissal were filed or has not yet commenced to run as no cross claim for a stay has been filed by the second defendant."
47 The court was thereafter referred to a number of authorities including Bolton Gems Pty Ltd v Gregoire unreported, NSWSC, 16 November 1995 BC9501839, Baltic Shipping Co v Merchant (1994) 36 NSWLR 361 and Commercial Banking Co of Sydney Ltd v Pollard [1983] 1 NSWLR 74.
48 In submissions in reply, counsel for the defendants, with some justification, complained of ambush. Directions for submissions had been made earlier in the year. The plaintiff had not complied with the directions and offered no explanation for non-compliance. At the commencement of the hearing, the only written submissions relevant to the summary dismissal application that had been provided by the plaintiff was the short written document that has been earlier mentioned. Apart from the belated submissions, the defendants also had to meet at short notice the amended statement of claim. This document introduced many changes (including the addition of paragraph 27A and the deletion of the words "as if he were the employer of the plaintiff" from paragraph 34). The belated introduction of paragraph 27A had a significant impact on the summary dismissal application.
49 Paragraph 27A raised what has been described as a claim for equitable recision. Because of its belated introduction, it was not and could not be dealt with in the earlier written submissions made on behalf of the defendants prior to the making of their replies. When oral submissions were being made this paragraph had been erroneously perceived as part of the claim for statutory relief.
50 In reply, both defendants conceded that this claim for equitable recision could not be summarily dismissed. This concession had the consequence that submissions on construction of the Deed of Release lost significance for the purpose of the application and the claims founded on contact could not be summarily dismissed.
51 Perhaps I should add that the Deed of Release may have its problems. In any event, it seems to me that in the circumstances of this case the task of construction is best performed in the context of a trial when the court has the benefit of all the relevant evidence.
52 The defendants maintained their stance that the statutory claims for relief should be summarily dismissed. An altered position was adopted in relation to the claim for misfeasance in public office.
53 Summary relief is a discretionary remedy. The authorities have established that it is relief that should only be granted in what might be described as clear cases. The onus rests with the party seeking the relief.
54 In the case of the FTA and the TPA, I do not accept the submissions made on behalf of the plaintiff and I make the further observations set forth in this paragraph. In applications for summary relief, the moving party accepts as being true allegations of fact made in a pleading. In the present case, a mere allegation that the relevant conduct took place in trade or commerce does not assist the plaintiff. The particulars relied on to support that allegation cannot make it out. In my view, the involvement of the outsourcing does not change the character of what is relied on. The particulars merely look to an internal matter of what passed between the plaintiff and the defendants concerning the plaintiff's employment. In my view, binding authority demonstrates that such a factual context cannot be characterised as conduct that takes place in the course of trade or commerce. It follows from what has been earlier said that I do not accept the argument that s 51AA should be given a broader and different construction. Accordingly, I consider that the FTA and TPA claims should be summarily dismissed.
55 I do not accept the submissions made by the plaintiff concerning s 16 of the CRA and I make the further observations set forth in this paragraph. The particulars set forth in paragraph 27 make it clear that the plaintiff relies on what took place prior to the execution of the Deed of Release. The claim brings a challenge to the validity of the Deed of Release. In my view it does not fall within either (b) or (c). In such circumstances, the claim in these proceedings has clearly been brought well out of time. I do not consider that the authorities relied on by the plaintiff afford him any assistance in this matter. Perhaps I should make specific comment as to one of those authorities. The observations made in Pollard were the subject of subsequent adverse comment by the Court of Appeal in Hogan v Howard Finance Ltd (1987) ASC 55 - 594. Accordingly, I am satisfied, for these reasons alone, that the claim made pursuant to the CRA should be summarily dismissed.
56 In the circumstances, it is unnecessary to address the second of the two arguments advanced in respect of this matter by the defendants.
57 There may be pleading issues concerning the negligence claim. If that be the case, these can be later dealt with, if necessary in a subsequent application.
58 Paragraph 40 alleges that the third defendant was a public officer holding public office. For the purposes of this application, the defendants have accepted the truth of allegations made in the process. Save to the extent that the conduct of the third defendant involved the Protected Disclosures Act 1994 (see paragraph 36), they maintained their stance that he was not involved in the exercise of public powers (what he was required to do in terms of university policies and codes of conduct did not fall within that category). In my view, there is force in that approach.
59 Rather than attempt to deal with this matter in some way by summary dismissal, it seems to me that it is better handled by way of amendment of pleading.
60 Save as to what follows from what has been earlier said, I do not consider that the onus has been otherwise discharged.
61 The claims for relief made pursuant to the Fair Trading Act 1987, the Trade Practices Act 1974 and the Contracts Review Act 1980 are dismissed. The costs of the applications for summary dismissal are reserved. The plaintiff's Notice of Motion is stood over generally with liberty to apply. The exhibits may be returned.