Direct liability of the Commonwealth - negligence
15 It is appropriate to record that we do not necessarily agree with the primary judge's observations at [87] and [88].
16 First, it was not necessarily "fatal" to the Commonwealth owing a duty of care to the applicant that he was present in a workplace the Commonwealth controlled under a series of contractual arrangements between the Commonwealth and an independent contractor and between the independent contractor and a company providing the services of the applicant. Nor was the primary judge's conclusion that there could be no implied contract between the applicant and the Commonwealth necessarily fatal to the existence of such a duty of care. This is because the existence of a duty of care in a novel case (assuming, for this purpose, the asserted duty was novel) depends upon an examination of all salient features of the relationship between the parties (see, for example, New South Wales v Spearpoint [2009] NSWCA 233 at [21]-[23] and Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; (2009) 75 NSWLR 649 at [102]-[104]).
17 Second, we do not understand Leighton to decide that the only case in which a party (for example, a person in control of a site or, in this case, a workplace) might owe a duty of care to an independent contractor is where the activities in question are inherently dangerous, thereby giving rise to a foreseeable risk of injury if activities are not co-ordinated. Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 (Stevens v Brodribb) was such a case, but there is no suggestion in it that the duty which might exist at law is confined by the particular factual circumstances of that case. Leighton also does not decide that Stevens v Brodribb is confined to its facts. In Leighton the alleged negligence involved an activity of one independent contractor harming another. In the present case, the allegation was of employees of the Commonwealth harming the applicant. Leighton was not necessarily fatal to the applicant's case.
18 Third, the asserted inconsistent obligations of the Commonwealth were not amenable to resolution on a summary dismissal application. They were fact and context dependent at least in large part. Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562, a strike out case, involved an inconsistency between the alleged duty and the applicable statutory regime which meant that the duty could never exist. The inconsistencies on which the Commonwealth relied in the present case were of a different character, not suited to summary disposal outside of the context set by knowledge of all of the relevant circumstances.
19 Because the primary judge did not identify which of his conclusions were necessary or sufficient to justify his decision to strike out the proposed pleading and summarily dismiss the proceeding, these conclusions must mean that, insofar as we are concerned, it must be taken that the primary judge erred so that this Court is required to decide the issues for itself. On that basis, we are satisfied not only that the primary judge was right in the views expressed at [89]-[91] and that, of themselves, each such conclusion was sufficient to justify the striking out of the causes of action in negligence, but that the duties as pleaded at paragraphs 24 and 25 of the proposed pleading were unintelligible and incapable of founding a claim with any reasonable prospect of success.
20 In dealing with paragraphs 24 and 25 of the proposed pleading, what must be recalled is that this was the applicant's final opportunity to attempt to plead his case. So much was clear from the order the primary judge made on 26 August 2014 (and even then, in the face of the order, describing the re-pleading as "final", the applicant was granted the further indulgence of yet another attempt). The primary judge had given the applicant multiple opportunities to plead the case. In coming to the proposed pleading the primary judge could not be expected to read in words that do not appear or to undertake a complicated process of construction of the pleading on the basis that any ambiguity ought to be resolved in the applicant's favour. Nor, for that matter, can we be expected to do so. Yet this is what the applicant's case involves.
21 Paragraph 24 pleads that at all times "during the Engagement" the Commonwealth owed the applicant a duty of care to avoid exposing the applicant to unnecessary risks of injury. In common with his Honour, we are prepared to overlook the lack of any definition of the Engagement and to take it as a reference to the work the applicant performed under the contracts referred to in paragraph 4 of the pleading. Yet the applicant had to go further. No material facts are pleaded which are said to give rise to this duty of care. The applicant submitted that we should read the words "during the Engagement" as meaning something like "during and in the circumstances of the Engagement as pleaded in paragraph 4". It is not possible to read paragraph 24 in this way. As the Commonwealth submitted, the proposed pleading is replete with what appear to be immaterial facts relating to events which pre-date the so-called Engagement by many years. Why paragraph 24 should be read as invoking the circumstances in paragraph 4 relating to the contracts, let alone only paragraph 4, is not apparent. The pleading thus fails to disclose any material facts capable of supporting the duty of care asserted in paragraph 24.
22 Paragraph 25 is particularised but, again, it was said that the paragraph should be construed as invoking the circumstances in paragraph 4 (but not, presumably, the many other paragraphs containing apparently immaterial facts). For the same reasons as for paragraph 24, we consider this an inappropriate exercise in the particular circumstances which confronted the primary judge. For a final attempt to plead a claim in negligence (after what, in truth, should be described as the third attempt to do so), paragraph 25 is patently inadequate as it does not identify all of the material facts on which the applicant relies to support the alleged duty; the Commonwealth would thus be left to guess that it is intended to invoke paragraph 4 and paragraph 4 alone as the relevant facts, apart from those particularised under paragraph 25.
23 In any event, as the primary judge appreciated, the existence of a duty of care is only part of a cause of action. This was the applicant's final chance to plead a complete cause of action in negligence. The attempt to plead breach in paragraph 26 is a series of generalised assertions by reference to another series of generalised allegations defined as the Complaints Investigation, the Security Breach Allegations, and the Security Breach Investigation. When regard is then had to how the pleading identifies those defined terms, the problems are compounded. For example, the Complaints Investigation is said to be attended by features, each of which might or might not be said, of itself or perhaps cumulatively, to involve a breach of the duty. Those features include the length of time the investigation took, the changes in personnel within the Commonwealth involved in the investigation, the involvement of a named person which caused the applicant to "feel that the investigation was not being conducted impartially", failing to keep certain things confidential and not providing the applicant with "ongoing feedback" about the investigation. It is impossible from the pleading to know how these features, individually or cumulatively, are said to involve breach of the duty of care. The same observations apply to the Security Breach Allegations as identified in paragraph 18 and the Security Breach Investigation as identified in paragraph 20.
24 The primary judge's description of the pleading of breach of the duties of care as "impossibly general and vague" at [91] is amply supported by the terms of the pleading. As such, no complete cause of action is pleaded, by reason of which the case in negligence had no reasonable prospects of success.
25 The primary judge was also right at [90] to identify the manifest inadequacy of the pleading in respect of identifying the persons said to have knowledge attributable to the Commonwealth which would make the Commonwealth directly, as opposed to vicariously, liable for harm said to have been suffered by the applicant (see Western Australia v Watson [1990] WAR 248 at 267-271). In submissions on the appeal it was said for the applicant that two employees of the Commonwealth had been identified in paragraphs 28 to 30 (Mr Mountstephen and Mr Slattery) and they were the relevant "agents to know" (adopting the phrase referred to in Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; (2007) 71 NSWLR 471 at [43], in a discussion about imputing knowledge to a corporation at [38]-[43]). But the pleading is hopelessly confused and confusing. One particular refers to an email to Mr Mountstephen but at a time before the alleged bullying in the workplace which caused the injury is said to have commenced. Another refers to an email to Mr Mountstephen but after his relevant role is said elsewhere in the pleading to have ceased. The third communication to Mr Slattery is well after the alleged bullying. In any event, it is not apparent from the face of the pleading that the applicant relies only on the communications to Mr Mountstephen and Mr Slattery as the basis for the imputation of the relevant knowledge to the Commonwealth. Numerous other employees are referred to and, as noted, the proposed pleading contains many allegations the relevance of which is unable to be discerned.
26 For these reasons the primary judge was right to conclude that the causes of action in negligence as pleaded had no reasonable prospect of success.