[1990] HCA 21
Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124
[1986] FCA 636
Building Workers' Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104
[1991] FCA 96
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
[1982] HCA 24
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640
Source
Original judgment source is linked above.
Catchwords
[1990] HCA 21
Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124[1986] FCA 636
Building Workers' Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104[1991] FCA 96
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337[1982] HCA 24
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640[2014] HCA 7
Geyer v Downs (1977) 138 CLR 91
[1977] HCA 64
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41
[1984] HCA 64
Lumley v Gye (1853) 2 E & B 216
118 ER 749
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
[2013] HCA 18
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104
[2015] HCA 37
OBG v Allan
Douglas v Hello! (No 3) [2008] 1 AC 1
Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451
[2004] HCA 35
Quinn v Leathem [1901] AC 495
Re McBain
Ex Parte Australian Catholic Bishops Conference (2002) 209 CLR 372
[2002] HCA 16
Stratford v Lindley [1965] AC 269
The Commonwealth v Introvigne (1982) 150 CLR 258
[2004] HCA 52
Torquay Hotel Co Ltd v Cousins (1969) 2 Ch 106
[1969] 1 All ER
Williams v Hursey (1959) 103 CLR 30
Judgment (22 paragraphs)
[1]
AC 495
Re McBain; Ex Parte Australian Catholic Bishops Conference (2002) 209 CLR 372; [2002] HCA 16
Stratford v Lindley [1965] AC 269
The Commonwealth v Introvigne (1982) 150 CLR 258; [1982] HCA 40
Thomson v Deakin [1952] Ch 106
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52
Torquay Hotel Co Ltd v Cousins (1969) 2 Ch 106; [1969] 1 All ER
Williams v Hursey (1959) 103 CLR 30; [1959] HCA 51
Category: Principal judgment
Parties: Stevo Derikuca (Plaintiff)
Secretary, Department of Education (Defendant)
Representation: Unrepresented (Plaintiff)
M Seck (Defendant)
File Number(s): 2021/33719
[2]
Judgment
HIS HONOUR: On 20 July 2021, the plaintiff, Stevo Derikuca, filed a Summons seeking relief against the defendant, the Secretary, Department of Education. The Summons seeks judicial review of a decision to restrict the plaintiff from attending school sites (hereinafter "the First Decision"); the decision hereinafter "the Second Decision") of the Department of Education that placed the plaintiff on the Not To Be Employed List (hereinafter "the List"), managed by the Secretary of the Department of Education (hereinafter "the Department"); damages; and costs.
There was previously a Statement of Claim, filed 5 February 2021, which has been replaced and overtaken by the terms of the Summons.
[3]
Factual and Procedural History
The plaintiff was formerly a cleaner at Strathfield Girls Public School. He was employed by ISS Property Services Pty Ltd (hereinafter "ISS"), a cleaning company which has a major contract with the Department. The Department, as the employer of the two relevant decision-makers exercising delegated power, is the properly named defendant.
There are, as may already be obvious, two decisions that are sought to be the subject of judicial review. The First Decision, made on 16 March 2020, was the decision of a delegate of the defendant who is R/Director Child Protection Investigations, Employee Performance and Conduct, Mr Luke Naividi. The First Decision revoked the plaintiff's access to any Department sites in the capacity of cleaner and was communicated to the plaintiff's employer, ISS.
The Second Decision was made on 28 September 2020 by the Acting Executive Director, Professional and Ethical Standards, Daryl Currie and was a decision to place the plaintiff's name on the List. The List is managed by the Secretary of the Department. [1]
The effect of each of the decisions is that the plaintiff is unable to work for the Department in any paid or voluntary capacity or to attend Department sites, including schools.
On 12 February 2020, ISS communicated to the plaintiff that he had been suspended from his duties as a cleaner at Strathfield Girls High School because of allegations of sexual misconduct. In February 2020, ISS initiated an investigation into the allegations and interviewed the plaintiff on 20 February 2020, in which interview he allegedly admitted to the allegations.
On 4 March 2020, the Department representative communicated to ISS that, given that the allegations did not relate to children, the Department was content for the matter to be dealt with by ISS. On 9 March 2020, ISS informed the plaintiff that, as he had admitted the allegations, he would be transferred to a different school at the request of the client, the new school being Marie Bashir Public School. Subsequently, on 16 March 2020, the same Department representative made a request to ISS that the plaintiff not be employed at any Department facilities (the First Decision).
The plaintiff's employment was terminated by ISS on 30 March 2020. On 8 April 2020, the plaintiff instigated an unfair dismissal claim in the Fair Work Commission seeking reinstatement by ISS. The unfair dismissal proceedings have been adjourned until the resolution of the proceedings now before the Court.
[4]
Nature of Allegations and Plaintiff's Employment
The plaintiff had been employed by ISS Property Services since 2011. The plaintiff was a permanent, full-time cleaner and had been employed by two different companies on the same worksite at Lidcombe TAFE. His employment at Lidcombe TAFE had commenced in approximately 2007.
In 2015, the plaintiff was promoted to leading hand at Lidcombe TAFE and was requested to work also at Concord High School as a leading hand. There has never been any issue with his performance.
An alteration occurred in the plaintiff's working conditions: he was directed to perform broken shifts, instead of a full unbroken shift; his hours were changed; and he was removed from the position of Leading Hand. There were also significant issues with the plaintiff's pay packet.
In 2018, the plaintiff raised the issues of his payment and treatment with the Fair Work Ombudsman. The issue was resolved, and the plaintiff's employer paid the plaintiff over $7,500 in unpaid wages.
On 20 January 2020, the plaintiff was working at Strathfield Girls High School and the then Leading Hand was moved to another site and there was no Leading Hand at the facility.
The incident that gave rise to the allegations occurred, apparently, on 3 February 2020. A teacher, with whom the plaintiff had spoken on a few earlier occasions to assist with requests relating to cleaning supplies, approached the plaintiff for paper towels. The plaintiff was not the cleaner for the building in which the teacher worked and had not been on the other occasions in which he was requested to assist and did assist.
Nevertheless, the plaintiff assisted again, as requested. It is appropriate to recite the passage from the Affidavit of the plaintiff sworn 18 November 2021 which is in the following terms:
"On this particular morning, when [the teacher] asked me for paper towels, I jokingly said something along the lines 'Am [I] going to get a medal if I do the extra work?' At that time, I was referring to the awards children get at school when they do something because I have two grandsons who are constantly taking [sic] about the awards they get at school and at this time I just wanted to suggest how she is again asking me to [sic] for things she needs, not the cleaner who should actually be helping her. I speak broken English and tried to explain that sentence the best I could. I could not think of the word 'award' and that is why I said, 'You know, like when you give kiss to children when they are good.' That was without any sexual connotation from my side. Even [the teacher] said she heard the word 'kiss' but was not sure what the context was." [2]
[5]
The Case of the Plaintiff
The plaintiff relies upon his own Affidavit affirmed on 18 November 2021 and the annexures thereto. He also relies upon the Affidavits of Tiffanie Forbes, Nicolina Popovich, and Slobadanka Todorovic, each of which was filed 19 November 2021. There is a second Affidavit by the plaintiff filed 16 February 2022.
The plaintiff also filed three sets of written submission on 19 and 27 September 2021 and on 4 March 2022. The plaintiff is self-represented and appeared at the proceedings and put submissions and/or answered questions through an interpreter. The plaintiff's spoken English is extremely limited, although he appeared to understand more English than he spoke.
There are particulars and pleadings to the Statement of Claim of 5 February 2021 and, on 10 and 27 September 2021, the plaintiff provided further and better particulars. The allegations of fact in the pleadings and the particulars provided are in disparate documents. It appears that the two decisions are sought to be reviewed on the following grounds.
[6]
The First Decision
The plaintiff claims that ISS denied the plaintiff procedural fairness in the process of its investigation because it did not disclose the details of the allegation against the plaintiff, nor did it make adjustments for the plaintiff's lack of English skills.
Further, the plaintiff claims that the Department, or its delegate, denied the plaintiff procedural fairness by not investigating the allegations at the time of the First Decision. The plaintiff claims that there was an obligation to investigate the allegations and not merely rely upon the investigation by ISS.
The plaintiff submits that the Department, by failing to conduct its own investigation, failed to follow correct procedure and denied the plaintiff procedural fairness. In this regard, the plaintiff relies upon the suggestion by another officer of the Department, on 15 June 2020, that a new investigation ought to occur.
The plaintiff claims that the Department, through its delegate, failed to consider the context in which the ISS termination occurred. The plaintiff submits that the Department did not consider that ISS might have had an "agenda" to terminate his employment, being a reaction to a prior Fair Work Commission claim, successfully taken by the plaintiff.
The plaintiff also claims that there was no evidence or valid legal reason to support the First Decision, and this amounts to an error of law. The plaintiff relies upon the findings of the investigation of 28 July 2020.
[7]
Second Decision
The plaintiff claims that the Second Decision is vitiated by jurisdictional error. The plaintiff claims that the decision was made without evidence and without a legislative basis.
Over and above the foregoing, in relation to both decisions, the plaintiff claims that the decision-makers were negligent in that they breached their statutory duties as a public authority. The plaintiff submits that the circumstances of the allegations involve a misunderstanding by the Department.
While the plaintiff's submissions are primarily concerned with the facts of the allegations, the plaintiff claims that there was a misunderstanding by the Department related to the plaintiff's grasp of English. His lack of skills in English caused the plaintiff to use the wrong words when associating with a staff member on the impugned occasions which led to the decisions. The plaintiff ostensibly submits that the circumstances surrounding the misunderstanding, because of the plaintiff's lack of English skills, demonstrates a lack of evidence of the allegations and that, therefore, the decision cannot stand.
[8]
Case of the Defendant
The defendant relies on the Affidavit of Sarah Jane Parry, filed 22 December 2021 and the exhibits thereto. The defendant compiled a Tender Bundle, which has been marked Exhibits 1 and 2 and contains all the material upon which the plaintiff relied and all the material upon which the defendant relied, together with the pleadings and submissions.
The defendant characterises the plaintiff's claim and summarises it in a manner that is not substantially different from the summary of the plaintiff's claim outlined in these reasons for judgment.
The defendant submits that the Court has no jurisdiction to grant any or all of the remedies claimed by the plaintiff.
First, the defendant submits that the First Decision was a decision in which the defendant exercised a contractual right under the contract between the Department and ISS. The defendant submits, which is irrefragable, that the plaintiff was not an employee of the defendant.
The defendant submits that the Court does not have jurisdiction to review the exercise of its contractual rights because they do not involve a "public duty". While the Court may have jurisdiction to issue a declaration, its utility, according to the defendant, is limited.
Secondly, the defendant submits that the plaintiff has failed to identify an error of law in either of the decisions of the defendant. Further, the defendant submits that there is no requirement on the defendant to provide the plaintiff with procedural fairness.
Such a duty, it submits, is not contained in any document, contract or statute. Nor is there a duty on the defendant to undertake its own investigation before determining to withdraw a person's clearance, or place them on the List. Again, in this area, the defendant relies on the proposition that the plaintiff was not an employee of the defendant; thus, the plaintiff lacks standing to seek the remedy in the Summons with respect to the Second Decision.
Further, the defendant submits that it - and, where relevant, ISS - sufficiently provided reasons to the plaintiff and cites, in relation to the First Decision, the correspondence of 9 March, 12 March, 16 March, 24 March, 25 March, 30 March, 15 April and 28 April 2020. As for the Second Decision, it submits that reasons were provided on 28 July, 31 August and 28 September 2020. The defendant further relies on the fact that the plaintiff's employer conducted its own investigation during which the plaintiff admitted to the conduct alleged.
[9]
Contractual Provisions
As is clear from the foregoing, the defendant relies upon its rights and/or powers pursuant to the contractual arrangement it has with the plaintiff's employer. The Contract is voluminous, and it would be onerous and unnecessary to extract the whole of the contract. It is necessary to note that the contractual documents define "Principal" to mean "Property NSW within the Department of Finance Services and Innovation". Also, the term "Contractor" is defined as "the contractor under the Agreement".
It is sufficient for present purposes to note that, apart from that which I would describe as the "usual conditions", the contract has Special Conditions which, in their entirety, are also independently lengthy. Most relevant is the provisions of subclause 5.5, which is concerned with "Employment Screening for Cleaning Personnel".
The subclause deals, in 5.5.2, with "Working with Children Check" and, in 5.5.3 with "Code of Behaviour (for the Protection of Children and other vulnerable people)". Clause 5.51 is the most relevant, and is in the following terms:
"5.5 Employment Screening for Cleaning Personnel
5.5.1 General Screening Requirement
(a) The Contractor must collect 100 points of ID from all Cleaning related employees and/or Subcontractors. Refer to Schedule 7 in Part D - General Conditions. The Contractor must also sight the originals of identity documents and all forms must be retained by the Contractor.
(b) The Contractor must generate a cleaner ID in WebClean and complete all identification fields for cleaners and supervisors. This entry is then verified by the Contractor and submitted to the principal via WebClean. All new entries are sent to NSW Police from criminal record check and Employee Performance and Conduct (EPAC) Directorate by the Principal. These requests are generated by the Principal via WebClean database.
(c) The Contractor must complete the Working with Children clearance number and date of clearance in the appropriate filed in WebClean prior to full clearance being provided.
(d) Once the Principal has received the results of the NSW Police and EPAC clearance and the complete Working with Children clearance details have been entered into WebClean, the Principal will, via a WebClean generated report, inform the Contractor of the results for its records and/or action, and advise the suitability of the engagement of the nominated employees/Subcontractor after the screening. The Contractor is to advise the applicant of all 'no clearance' results and manage this relationship. The Contractor must not direct the applicant to the Principal for any reason.
(e) The Principal may without being required to give any reason direct the Contractor not to engage a particular employee/Subcontractor at a Facility and the Contractor must comply with such direction.
(f) If any person engaged as employee/Subcontractor by the Contractor is in the opinion of the Principal guilty of misconduct in or in the vicinity of the Facility or otherwise is in the opinion of the Principal unsuitable to be engaged as employee/Subcontractor the Principal may direct the Contractor to no longer engage that person as employee/Subcontractor and the Contactor must comply with such direction." [5]
[10]
Legislation
As outlined in the foregoing submissions, the Department relies upon two specific provisions to confer power upon the decision maker in respect of the Second Decision. They and other directly relevant provisions, which should be recited, are in the following terms:
[11]
Education (School Administrative and Support Staff) Act 1987 (NSW)
"3 Definitions
(1) In this Act:
classification means a classification of school administrative and support staff referred to in section 5.
Department means the Department of Education.
permanent employee means a member of the school administrative and support staff employed on a permanent basis under this Act.
temporary employee means a member of the school administrative and support staff employed on a temporary basis under this Act.
remuneration includes salary and wages.
school administrative and support staff means school administrative and support staff of the Department.
Secretary means the Secretary of the Department.
Note -
The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.
(2) In this Act:
(a) a reference to a function includes a reference to a power, authority and duty, and
(b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty.
(3) Notes included in this Act do not form part of this Act."
"4 School administrative and support staff
(1) The school administrative and support staff of the Department consists of the permanent employees and temporary employees who are for the time being employed under this Act.
(2) The provisions of the Government Sector Employment Act 2013 relating to the employment of Public Service employees do not apply to a member of the school administrative and support staff."
"7A Protection of children to be paramount consideration
(1) The protection of children is to be the paramount consideration:
(a) in taking any action with respect to a member of the school administrative and support staff under this Act, and
(b) in dealing with any appeal against, or determining any claim arising from or in relation to, that action.
(2) This section has effect despite anything in the Industrial Relations Act 1996 or any other Act or law."
"7E List of persons not to be employed as school administrative and support staff
The Secretary may prepare and maintain a list of persons who the Secretary determines are not to be employed as members of the school administrative and support staff."
[12]
Teaching Service Act 1980 (NSW)
"4 Definitions
(1) In this Act:
appointed day means 20 October 1980.
Department means the Department of Education.
exercise a function includes perform a duty.
function includes a power, authority or duty.
officer means a person employed in the Teaching Service other than as a temporary employee.
position includes office.
school means a government school established under the Education Act 1990.
school principal means a person appointed to the position of principal of a school.
Secretary means the Secretary of the Department.
senior position means any position in the Teaching Service to which a person employed in the Teaching Service could be promoted.
Teaching Service means the Teaching Service of New South Wales referred to in section 44.
temporary employee means a person employed under section 50.
Note -
The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.
(2) Notes included in this Act do not form part of this Act."
"5A Protection of children to be paramount consideration
(1) protection of children is to be the paramount consideration:
(a) in taking any action with respect to an officer or temporary employee under this Act, and
(b) in dealing with any appeal against, or determining any claim arising from or in relation to, that action.
(2) This section has effect despite anything in the Industrial Relations Act 1996 or any other Act or law."
"6 General responsibility
(1) The Secretary is responsible to the Minister for the general conduct and the efficient, effective and economical management of the functions and activities of the Teaching Service.
(2) For the purpose of exercising that responsibility, the Secretary may take such action as the Secretary considers appropriate in the circumstances.
(3) (Repealed)"
"7 General functions
(1) The Secretary has the following functions:
(a) to classify the schools in which members of the Teaching Service are employed,
(b) to determine the staff positions in the Teaching Service (including the teaching positions in schools),
(c) to determine the method of classifying and grading officers employed in the Teaching Service,
(d) to determine the qualifications required for appointment to the Teaching Service,
(e) to prepare and maintain a list of persons who the Secretary determines are not to be employed in the Teaching Service,
(f) to maintain discipline in the Teaching Service.
(2) Subsection (1) does not limit the functions that are conferred or imposed on the Secretary by or under this Act."
"44 The Teaching Service
(1) The Teaching Service of New South Wales consists of the persons who are for the time being employed under this Division.
(2) Those persons are taken to be employed by the Government of New South Wales in the service of the Crown, except as provided by section 12.
(3) This Division does not affect any other method (statutory or otherwise) by which a person holds a position, or is otherwise employed, in the Teaching Service."
[13]
The Second Decision
The Court will deal with the validity of the Second Decision first, merely because it is more easily resolved. The Department raises two issues: first, the standing of the plaintiff to seek a remedy; and, secondly, the earlier recited provisions for the conferral of power, enabling the Department to place the plaintiff on the List. [6] I deal firstly with the standing of the plaintiff.
[14]
Standing
The plaintiff seeks "revocation" of the Second Decision. The only relevant order that the Court can issue that would "revoke" the Second Decision is an order in the nature of certiorari, which, if it were to issue, would quash the decision to place the plaintiff on the List.
There has been much academic and judicial debate concerning the standing to take proceedings for the issue of certiorari, or orders in the nature thereof. It is well accepted that a person aggrieved is entitled to seek one or other of the writs, or orders in the nature of them.
The academic and judicial debate centres primarily on whether a stranger - being a person who is not aggrieved by the order - is entitled to seek prerogative relief. The High Court has commented that the writ is available to strangers, but the Court may refuse the writ on the basis of the judicial discretion to refuse relief even where jurisdictional error has been established or error of law has been established. [7]
There are differences, in relation to the standing of strangers, between some of the writs. For example, it is often said that mandamus will not issue where the exercise of the duty that has not been performed would not impact upon the person seeking the orders. There are further differences in some of the common law jurisdictions as to whether strangers are entitled to obtain prohibition and certiorari.
The discussion in McBain was in the context of the exercise of federal judicial power and the meaning of the term "justiciable controversy". At a minimum, each of the judges of the High Court accept the proposition that the standing of an applicant to seek certiorari, and the determination of whether the matter is a justiciable controversy requiring the exercise of judicial power, depend, at least, on the existence of an immediate right, duty or liability that would be established by the determination of the Court. [8]
In these proceedings, the placement of the plaintiff on the List is the decision sought to be quashed or "revoked".
As has been said, locus standi is related to the relief claimed. The quashing of the Second Decision would have the effect of the plaintiff not being on the List. In those circumstances, the plaintiff has an interest in the subject matter of the action, such that, if he were successful, it would warrant the grant of relief. Thus, the plaintiff has sufficient interest to seek certiorari against the Second Decision.
[15]
Power to make the Second Decision
I turn then to the substance of the claim for certiorari against the Second Decision. As already stated, the Department relies upon the provisions of s 7E of the Education (School Administrative and Support Staff) Act and s 7(1)(e) of the Teaching Service Act. Each of them have been extracted, together with other directly relevant provisions.
When construing a statute, the Court is required to construe the words of the statute and to determine, from the words of the statute, the purpose of the legislature. In so doing, the Court is required to achieve harmonious goals for the statutory instrument. [11]
Examining the words of the statute, or each of them, in my view, does not give support to the defendant's claim that these provisions provide a legislative basis for placing the plaintiff on the List. I deal first with the provisions of the Education (School Administrative and Support Staff) Act.
Section 7E of the Education (School Administrative and Support Staff) Act allows the Secretary to prepare and to maintain a list of persons who are not to be employed as members of the school administrative and support staff. No issue arises as to the person who performed the task, and the Court has been provided delegations in relation to the function of the Department Secretary, which the Court accepts allow the decision maker to make an appropriate decision.
However, the first item of note is that the terms of s 7E relate to persons who are not to be "employed". Secondly, they are not to be employed "as members of the school administrative and support staff". The term "members of the school administrative and support staff" is a term that is defined.
Notwithstanding that the definition in s 3 of the Education (School Administrative and Support Staff) Act has non-exhaustive definitions, some of the definitions prescribed are "exhaustive". The definition of "school administrative and support staff" is defined exhaustively to mean "school administrative and support staff of the Department". Further, the definitions of "permanent employee" and "temporary employee" are defined to mean members "of the school administrative and support staff employed" (emphasis added) on a permanent or temporary basis, respectively.
The legislative warrant for the preparation and maintenance of a list of persons is authority to prepare and to maintain a list of persons who may not be employees of the Department. There is no legislative support for the proposition that, pursuant to s 7E of the Education (School Administrative and Support Staff) Act, the Department Secretary (or a delegate thereof), may place on the list, persons who may not be employed by contractors to the Department.
[16]
The First Decision
The First Decision of the Department does not rely upon any statutory power or authority. Rather, the Department submits that the basis for the First Decision is the power conferred upon it under contract. The terms of the contract have been extracted above.
While the construction of a contract is not performed with the same eye to strictness that occurs with a statutory instrument, the process is identical. The whole of the contract must be read and the provisions that are sought to be construed must be read in the context of the whole of the document.
Further, it is the intention of the parties to the contract that is to be given effect, but that intention is derived objectively, from the terms of the contract itself, and does not deal with the subjective intention of either one or both of the parties.
Further, the contract must be construed in the context of the commercial relationship to which it relates, and in a manner that furthers the relationship, rather than being inconsistent with it. The objective approach to the construction of a contract has been reaffirmed by the High Court on a number of occasions. In particular, the High Court has said:
"This Court has reaffirmed the objective approach to be adopted in determining the rights and liabilities of parties to a contract. The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean. That approach is not unfamiliar. As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. Appreciation of the commercial purpose or objects is facilitated by an understanding "of the genesis of the transaction, the background, the context [and] the market in which the parties are operating". As Arden LJ observed in Re Golden Key Ltd, unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption 'that the parties … intended to produce a commercial result'. A commercial contract is to be construed so as to avoid it 'making commercial nonsense or working commercial inconvenience.'" [12]
As already stated, the Court has been provided with delegations relating to the functions of the Department and the actions of the particular employees and/or staff of the Department in this area. The Court has also been provided with the entire contract between the Department and ISS. I have previously recited the most relevant aspects.
[17]
Department's duty to students
The liability of a school authority to a pupil attending the school arises at a number of levels. First, the school is vicariously liable for the conduct of its employees. Over and above vicarious liability, the school has a non-delegable duty to pupils, being a duty to ensure that reasonable care is taken of those pupils while they are on school premises during hours when the school is open for attendance. [20]
There can be no doubt that the School is operated by the Department, and the Department itself, owes a duty of care to the pupils and is entitled to take steps to prevent or to ameliorate any risk to the students in their care. The duty owed to the pupil may not be as wide or far-reaching as the capacity of the Department to ameliorate the risk by eliminating potential risk.
Thus, it is unnecessary for the Court to determine whether the Department would be liable for conduct of a particular person on its premises who was not excluded, but the Department can be more cautious than is essential for the avoidance of damages or liability.
In other words, the Department is not limited to the steps necessary, essential or even reasonably necessary to eliminate liability. It is entitled to take all the steps that it considers appropriate to ameliorate a risk, of any kind, to the students in its care. The foregoing is not really an issue that it is necessary to determine. The more fundamental issue is whether the allegations that the Department considers misconduct, or even inappropriate, is conduct that would be open to consider manifests a risk to students in the care of the Department.
A tendency for sexual interest in children or persons up to the age of 18, by a person of the age of the plaintiff would, ordinarily, constitute a paraphilic disorder. There is no suggestion in any of the evidence before the Court that the defendant suffers a paraphilic disorder.
Further, the experience of the Court, in dealing with expert evidence relating to paraphilia, or its sub-category paedophilia, is that conduct of the kind alleged against the plaintiff is not conduct that could rationally affect, directly or indirectly, the risk to the children or, put otherwise, the probability that the plaintiff posed a risk to children. While the foregoing is obviously paraphrasing the terms of s 55 of the Evidence Act 1995 (NSW), the Department, in its decision-making process, is not bound by the rules of evidence.
[18]
Department's duty to employees
The next matter with which the Court will deal is the duty to its employees. The Department has a duty imposed upon it, both at common law and under statute, in relation to its employees. Since the duty imposed upon the Department by legislation is broader and stricter than the common law duty, it is sufficient, for present purposes, to deal with the statutory obligations.
The Work Health and Safety Act 2011 (NSW) imposes a duty on every employer - and even on persons who conduct a business or undertaking and do not employ persons - being strict duties relating to the health and safety of a number of persons. The Work Health and Safety Act imposes on a person conducting a business or undertaking a duty to ensure, "so far as is reasonably practicable, the health and safety of … workers engaged, or caused to be engaged by the person … while the workers are at work in the business or undertaking". [22]
It is unnecessary to deal with more detailed duties imposed upon certain classes of businesses or undertakings. The general duty, or, as it is described in the statute, the "primary duty", is sufficient for present purposes. It even requires a self-employed person to ensure his or her own health and safety while at work. [23]
Leaving aside what may or may not be reasonably practicable, the duty to "ensure" the health and safety of the complainant teacher (and the staff member who did not complain) requires the Department to take all reasonably practicable steps to eliminate or to ameliorate risks to health and safety. Where, as here, the Department is satisfied that there has been sexual harassment, the Department may be under a duty to deal with that threat to the health and safety of its employees who may be victims of any such perpetrator.
On the other hand, there may be good reason why, in the circumstances of this case, the decision to prevent the plaintiff from attending any Department site is disproportionate or unfair. However, the decision is not "legally disproportionate" in the sense that it can be said no reasonable decision-maker would make the decision. The Court, as stated above, by reference to High Court authority, does not put itself in the position of the decision-maker. The Court determines only that which is unlawful.
A determination, based upon the risk to the health and safety of the Department's employees to exclude the plaintiff from Department sites is, given the nature of the complaint, open to be categorised as unfair. However, as stated, it is a decision that would be open to the Department. I would not, on judicial review, interfere with a decision made on that basis, even if such a remedy were available.
[19]
Terms of the contract
It is necessary then to turn to the capacity of the Department, under the contract upon which it relies, to take the decisions it did and to implement them. The most relevant clause or sub-clause of the contract between the Department and ISS (in these reasons referred to as "the Contract") has been recited above.
The Department relies, in particular, on the terms of paragraphs 5.5.1(e) and (f) of the Contract. Under those provisions, the Principal may, without any reason, direct the Contractor not to engage a particular employee and, to the extent that the Principal forms an opinion that a person is unsuitable to be engaged as an employee, direct the Contractor not to engage the person any longer.
There are a number of difficulties with the Department's reliance upon these provisions. First, these provisions are part of a clause dealing with the screening requirements for persons who may work on Department sites.
The earlier paragraphs of Clause 5.5.1 deal with the proper identification of the employee; police criminal record checks; working with children clearance and the date of clearance; and the resultant advice. Once those matters have been satisfied, the Principal advises the suitability of the engagement of the nominated employee. It would seem that paragraphs 5.5.1(e) and (f) relate to a residual capacity in the Principal in relation to a person who has previously satisfied, or otherwise, the other issues.
In other words, if the Principal subsequently learns of conduct that would vitiate the satisfaction of the other tests, the Principal may act, after engagement on a particular site or sites, to ensure that the employee in question is no longer employed. For example, if the particular employee satisfied the Department in relation to the criminal record check but, during employment, engaged in criminal conduct, subsequent conduct could give rise to the exercise of the power under the Contract contained in paragraphs 5.5.1(e) and (f).
The terms of paragraphs 5.5.1(e) and (f) are extremely wide. It cannot be part of the purpose of the Contract for the Principal to direct the Contractor not to engage the particular employee on work other than that to which the Contract relates. In other words, a proper construction and understanding of the terms of clauses 5.5.1(e) and (f) would not entitle the Principal to insist that ISS, in the present case, not employ the plaintiff on cleaning tasks that do not involve Department sites.
[20]
Remedy
The issue then becomes the remedy that may issue. Obviously, the Court could make a declaration that the First Decision was not authorised by the Contract, although the propriety of so doing in the absence of one of the parties to the contract (if not both parties to the contract) is debatable.
While prohibition issues to deal with the effects of a decision made in want or excess of jurisdiction, it issues against persons acting in exercise of a public duty or power. As the Department submits, the power that was purportedly exercised is granted by contract and does not involve a public duty nor a statutory right. In matters of contract, government officers and/or government departments are, with obvious and necessary adjustments, in the same position as any other party to a contract. Assuming a government has the authority and/or power to execute the contract, then its exercise of power as a party to the contract is not amenable to orders in the nature of writs that lie as consequence of its function under statute as a public entity.
The Court, however, is not confined to the terms of the order or the remedies agitated by the parties. The Court is required, pursuant to the terms of s 63 of the Supreme Court Act 1970 (NSW), to grant all such remedies as a party may appear to be entitled to in respect of any legal or equitable claim brought forward in proceedings so as to determine finally and completely all matters in controversy between the parties.
Pursuant to the terms of s 66(1) of the Supreme Court Act, the Court has the jurisdiction, other than its inherent jurisdiction, to grant, at any stage of proceedings, an injunction or restraining order enjoining threatened or apprehended breach of contract. As for an injunction to restrain the effects of the continued imposition of a past breach of contract, such jurisdiction is a necessary aspect of a superior court of record. However, ordinarily at least, a non-party to a contract is incapable of enforcing the contract.
The principles of privity of contract would have the effect of denying to the plaintiff, Mr Derikuca, the capacity to enforce the contract between ISS and the Department.
It is necessary then to consider whether the tort of inducing a breach of contract may allow the plaintiff to seek damages and/or enjoin the Department from acting in the manner that it has acted and continues to act. The tort, in its modern form, derives from trespass, when employees were "chattels". In Lumley v Gye [28] the modern form of the tort was first formulated and has been developed, albeit with some criticism of the basis for, and continued operation of, the tort. [29]
[21]
Conclusion
There are manifest difficulties in the proceedings before the Court. Without any criticism of either party, the plaintiff has not addressed the issues in the same way as the Court has dealt with them. As a consequence, the defendant has sought to respond to that which it understood was the submission of the plaintiff. The issues are more complicated than the plaintiff has suggested in his submissions.
The plaintiff did address the authority of the Department to list the plaintiff on the List and to exclude him from performing work at a school. In response to the lack of authority in relation to the List, the Department relied upon the statutory provisions to which reference has already been made.
As I have sought to explain, those statutory provisions do not provide legislative authority for the inclusion of the plaintiff on the List (the Second Decision). Nor do they provide statutory authority for the exclusion of the plaintiff from a school site (the First Decision).
The evidence before the Court makes it clear that the Department has been including persons on the List who are not employees or part of the Teaching Service. As such, there are good discretionary reasons why the Court should issue certiorari and/or declarations as to the statutory power.
The Court has also indicated that the Department, on the material it has presented, is not in a position to exercise the rights, if there be any, under the Cleaning Contract between Property NSW and ISS. I draw the inference from the evidence of the defendant Department that Property NSW did not issue the edict and/or request that the plaintiff not be employed. The issue does not end there.
The basis and/or cause of action, which may give rise to a remedy against the Department at the suit of the plaintiff, was not the subject of submissions by either the plaintiff or the Department. Further, there have been no submissions on the capacity of the Department to prevent the plaintiff from attending at Strathfield Girls High School as a result of the circumstance that, unusually, the Department is the owner of Strathfield Girls High School. The proprietary interest may permit, notwithstanding all of the foregoing reasons, the exclusion of a person from the premises.
As is more common, the Department is the occupier of the premises at Marie Bashir Public School and may have similar but more confined rights to exclude a person from those premises. Nothing has been put to the Court in relation to those issues.
[22]
Endnotes
Section 7E of the Education (School Administrative and Support Staff) Act 1987 (NSW) and s 7(1)(e) of the Teaching Service Act 1980 (NSW).
Exhibit 1, p 99.
Exhibit 2, p 330.
Exhibit 2, pp 331 and 335.
Exhibit 2, Defendant Tender Bundle, p 447-448.
Education (School Administrative and Support Staff) Act, s 7E; Teaching Service Act, s 7(1)(e).
Re McBain; Ex Parte Australian Catholic Bishops Conference (2002) 209 CLR 372; [2002] HCA 16.
Ibid, particularly, Hayne J at CLR 459ff, [243]-[246].
Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124; [1986] FCA 636 (Gummow J).
Ibid, at FCR 131-132.
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28.
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 (French CJ, Hayne, Crennan and Kiefel JJ). See also Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 (Gleeson CJ, Gummow, Hayne, Callinan and Heyden JJ); Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 351; [1982] HCA 24 (Mason J, with whom Stephen, and Wilson JJ agreed); Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 62; [1984] HCA 64; Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37.
Affidavit of Ms Parry, affirmed 22 December 2021, Exhibit 2.
At the request of the plaintiff, the Department sent an email on 28 April 2020, advising the plaintiff of the reasons for the decision of 16 March 2020. In short, the reasons given were that the investigation by ISS sustained the allegations against the plaintiff and ISS took disciplinary action. An Investigation Report, dated 28 July 2020, was provided to the plaintiff.
On 8 October 2020, the Second Decision was communicated to the plaintiff by the Department. On 13 November 2020, the plaintiff commenced proceedings in the New South Wales Civil and Administrative Tribunal (hereinafter "NCAT" or "the Tribunal"). The NCAT proceedings were dismissed for want of jurisdiction.
The Registrar of the Supreme Court referred the parties to mediation, which occurred on 22 April 2021, and was unsuccessful.
At a directions hearing before the Court, the plaintiff was, in effect, ordered to file and serve the Summons in place of the Statement of Claim. There were subsequent procedural issues between the parties, including requests for further and better particulars and subpoenas issued for persons to give evidence. The pleadings closed on 25 October 2021, and the initial hearing was to have commenced on 20 April 2022 but was vacated as a result of the plaintiff contracting COVID.
The allegations also suggest that, without any suggestion of physical contact or a physical motion towards the teacher, the plaintiff was leaning forward at the time the plaintiff said these words. However, the evidence before the Court, also uncontradicted, is that the plaintiff has a hearing problem and leans towards people because he cannot hear properly. The plaintiff was approximately one metre from the teacher (an arm's length).
There is medical evidence from an Ear Nose & Throat Specialist confirming the hearing issues. As already implied, none of the evidence of the plaintiff is contradicted or was the subject of cross-examination. Before the Court is a Working With Children Check referrable to the plaintiff.
In the course of the ISS investigation regarding the plaintiff, a meeting between two officers of ISS and the plaintiff ostensibly occurred. The record of this meeting was produced on subpoena by ISS to the Department and was adduced by the Department in these proceedings. The document records that the plaintiff, on providing the teacher with the paper roll, admitted that he said, "if you give me kiss (sic) I will give you two". It seems to be accepted that the reference to "two" is a reference to rolls of paper towel.
The accuracy of this note is not the subject of evidence. Nevertheless, the document, having been produced on subpoena, is a business record and is admissible for the truth of its contents in these proceedings. It seems, given that the document was produced on subpoena, that it was produced to the Department after the commencement of these proceedings.
Between making the First Decision and making the Second Decision, the Department carried out an investigation. The investigation occurred, apparently, as a result of a miscommunication as to whether ISS had conducted its own investigation. The reasons for the investigation are immaterial.
On 15 June 2020, the Department wrote to the plaintiff, addressing him by his first name, informing him that an investigation would occur. On 20 July 2020, the Department delegate spoke with the teacher by telephone.
The teacher's allegation is not precise, but she alleges that the plaintiff said to her words which suggested that she should give him a kiss. The report of the telephone conversation (and the allegations) is in the following terms:
"He passed her the paper and asked for a kiss by saying 'kiss' or 'give me kiss'.
He turned his chin up and 'puckered his mouth' at her.
This occurred while he was passing her the paper. He was approximately one arm's length away from her. He did not touch her.
She felt 'disgusted' and 'shocked'.
She said 'no' and stepped out into the corridor and started walking away.
She saw him walk the other way, and turned around and followed him to confront him.
She stated she was not normally a confrontational person, but she wanted to confront him because she was 'very angry'.
She stated, 'something happened' when she was a little girl and she felt the same feelings, and she thought 'Nup he's not getting away with his'.
She spoke to him in the staffroom. She said 'you can't do this, very bad' and 'you'll lose your job, you'll lose your job'. He said, 'oh no I'm only joking' or words to that effect.
She felt like she needed to tell him off because she did not want him to do it again or do it to someone else. She also felt like she needed to warn him that he will lose his job if he continues.
…
She then started avoiding him.
The request for a kiss was 'totally out of the blue'. She stated, 'it was not usually up to cleaners to get the paper towels, as they were usually kept in the staffroom'. She felt like he felt he was doing a favour, so she 'owed' him a kiss. She thought the kiss was being requested as a 'reward'. She confirmed he did not say anything else to her during the exchange in the storeroom.
Previous concerns:
There were approximately four occasions in 2019 or early 2020 when:
[The plaintiff] told her she was 'beautiful' or 'lovely' or 'look so young'.
[The plaintiff] said this in response to her saying, 'how are you' or 'good afternoon'.
She never reciprocated, simply saying 'thank you' or walking away.
She could not recall specific occasions or dates this occurred.
The four times occurred between the date he started working at the school, and prior to the storeroom incident. He did not say any of these things to her on the day of the storeroom incident.
She felt uncomfortable and started avoiding him.
She felt he had a 'weird vibe' and found him 'creepy'. She started walking different routes around the school to avoid him.
She has not heard of anything inappropriate occurring to anyone else." [3]
There is a notice from another female employee at the school who raised an issue with a deputy principal that she felt uncomfortable around the plaintiff because he called her "beautiful" and "commented on her appearance". The lack of comfort altered the manner in which that employee conducted herself in walking to the car, being accompanied by another and the like. The deputy principal asked the employee to put the complaint in writing, but the employee refused, and the employee refused to be interviewed for the purpose of the investigation by the Department. [4]
In and of itself, the foregoing material is not inconsistent with the version of events provided by the plaintiff and recited above. Nevertheless, in the telephone conversation that occurred between the teacher and the Department, the teacher referred to the plaintiff "puckering up", albeit at arm's length.
In some respects, the "puckering up" conduct, if the allegation is accurate and was recorded accurately, is inconsistent with the plaintiff's version that seems to suggest that he used the word "kiss" because he could not think of the word in English for the word "award". However, the overwhelming impression from the material, accepting the veracity for this purpose of the notes taken and the statements made by the teacher, is that there was no physical contact, and the suggestion of a "kiss" was said without any real intention that it should be taken seriously.
Nevertheless, the statements are problematic. Even more problematic is that each of the two staff members felt "awkward" and/or "unsafe" (my words) around the plaintiff, whom they described as "creepy". The feeling by a staff member that a person is "creepy" ought not to be ignored, nor underestimated.
As to the jurisdiction to make the Second Decision, the defendant relies upon the conferral of power under s 7E of the Education (School Administrative and Support Staff) Act 1987 (NSW) and s 7(1)(e) of the Teaching Service Act 1980 (NSW).
Finally, the defendant relies upon the discretion of the Court. The defendant submits that the grant of relief would be futile because, irrespective of the reasons for the two decisions, the defendant is lawfully entitled to exclude the plaintiff from its premises.
Further, if the test be whether the plaintiff was a "person aggrieved", then the plaintiff is a person aggrieved by the Second Decision. The term "person aggrieved" has been given a liberal interpretation and has been held by the courts to include derivative interest. [9] In AIMPE v Department of Transport, supra, Gummow J said:
"The rules as to locus standi were by no means uniform as between the various prerogative writs, but the concept of 'grievance' as providing locus standi was embedded in the rules which controlled the issue of writs of certiorari. … At common law it became established that, whilst the Court even in other cases had a discretion to issue certiorari, it would do so ex debito justitiae if the application was made by 'an aggrieved party', who was not merely one of the public and who had 'a peculiar grievance of [his] own'. What needs to be emphasised is that even at common law it was by no means apparent that 'grievance' necessarily involved injury to property or present legal interests or 'special damage' in any technical sense. Nor was it essential that the aggrieved person be a 'party' to the administrative decision he sought to have quashed by certiorari, if he otherwise had sufficient standing. The fundamental consideration was that the common law remedies went in the interests of the community rather than simply to enforce private rights." [10] (Citations omitted.)
Notwithstanding the breadth of standing applied by Gummow J in AIMPE v the Department of Transport, the plaintiff has any interest that involves injury to property (the loss of wages), present legal interests and, probably, special damage. As a consequence, the plaintiff is a "person aggrieved" and has an interest beyond that of the public.
I turn then to the provisions of the Teaching Service Act. The defendant relies upon the provisions of s 7(1)(e) which are extracted above.
Again, the power to prepare and to maintain a list of persons is a power and/or authority that relates to persons who are "not to be employed in the Teaching Service". The Teaching Service is defined to mean the "Teaching Service of New South Wales, to which s 44 of the Teaching Service Act refers".
Section 44 defines the Teaching Service as consisting of "persons who are for the time being employed under this Division". Such persons are, pursuant to s 44, taken be employed by the Government of New South Wales.
In other words, once more, any list prepared or maintained under the provisions of s 7(1)(e) of the Teaching Service Act is a list of employees employed in the Department. The provision is not a warrant for listing persons who may not be employed by, or are a contractor to, the Department.
The Department relies upon its general power to exclude from its own property, or the property of the Government, any persons. It is unnecessary to determine whether - in circumstances where a contract is executed that requires a corporation to enter the property of the Department and employ people to carry out functions to which the corporation has contracted - a person may be denied entry to carry out that work. Much will depend upon the terms of the contract, to which later reference will be made. Nevertheless, the Second Decision is a decision to place the plaintiff on the List.
If there be other reasons or another basis by which the Department may exclude the plaintiff from its premises, it says nothing about the authority or power of the Department to place the plaintiff on the List. In my view, there was no such authority and orders in the nature of certiorari, quashing the Second Decision should issue.
While I accept, if there are other bases upon which the Department may exclude the plaintiff from their property, the discretion of the Court as to whether it should issue certiorari needs to be examined. It seems to me that the placement of the plaintiff on the List purports to give administrative and statutory authority to the exclusion of the plaintiff from the premises of the Department. That administrative and legislative basis does not exist.
Further, the discretion, if there be a discretion, to exclude the plaintiff from the facilities of the Department, in the absence of that administrative and legislative basis, may be exercised by the Department very differently. In all the circumstances, the Court will issue orders in the nature of certiorari quashing the Second Decision. I also take into account the fact, on which the Department relies, that the List is used generally in relation to persons who are not employed and never would be. If the Department seeks to have such a list, there should be a legislative warrant for it.
In relation to each of the First and Second Decisions, the Department relies upon its duty to ensure "that in the circumstances and where the protection of children is paramount, that the Plaintiff no longer be permitted to work on the Department's sites". [13] Otherwise, the Department refers to its obligation "to ensure that all staff members are able to work in a safe workplace". [14]
Even if the Court were able, in judicial review, to determine the truth and/or seriousness of the allegations made against the plaintiff, the state of the evidence is such that it would be difficult. Without any criticism of the plaintiff or of the Department, the evidence is not in a state where the primary facts could be determined, except to the extent that they are uncontested.
In the plaintiff's case, this is because of the circumstance that he is self-represented, although, as a result, his evidence of the circumstances is, at least, direct. For the defendant, the evidence is a reaction to the nature of the proceedings that have been brought and the manner in which the plaintiff has adduced his evidence, together with his written submissions.
It is important to reiterate the words of caution of Brennan J (as his Honour then was) in Attorney-General (NSW) v Quin. [15] In Quin, Brennan J said:
"[17] Judicial review has undoubtedly been invoked, and invoked beneficially, to set aside administrative acts and decisions which are unjust or otherwise inappropriate, but only when the purported exercise of power is excessive or otherwise unlawful. … The essential warrant for judicial intervention is the declaration and enforcing of the law affecting the extent and exercise of power: that is the characteristic duty of the judicature as the third branch of government. In Victoria v The Commonwealth and Hayden, Gibbs J said that the duty of the courts extends to pronouncing on the validity of executive action when challenged on the ground that it exceeds constitutional power, but the duty extends to judicial review of administrative action alleged to go beyond the power conferred by statute or by the prerogative or alleged to be otherwise in disconformity with the law. The duty and the jurisdiction of the courts are expressed in the memorable words of Marshall CJ in Marbury v. Madison:
'It is, emphatically, the province and duty of the judicial department to say what the law is.'
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
[18] The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.
[19] [Even] Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power. Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action." [16]
It is not the function of the Court to determine whether the action of the Department in relation to the plaintiff was "unfair" or even if it were "appropriate", subject, in the latter aspect, to judicial unreasonableness.
In relation to judicial unreasonableness, especially, the Court needs to be vigilant in ensuring that the separation between judicial review, on the one hand, and the functions of the administrative decision maker (which are different) is maintained. In that respect, the High Court has drawn an analogy between the approach to judicial unreasonableness and the test to be applied in dealing with discretionary judgments.
Referring to the test of "manifest unreasonableness", the plurality in Li [17] said:
"[75] In Peko-Wallsend, Mason J, having observed that there was considerable diversity in the application by the courts of the test of manifest unreasonableness, suggested that "guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion". House v The King holds that it is not enough that an appellate court would have taken a different course. What must be evident is that some error has been made in exercising the discretion, such as where a judge acts on a wrong principle or takes irrelevant matters into consideration. The analogy with the approach taken in an administrative law context is apparent." [18]
The same view was expressed, slightly differently, by Gageler J, where his Honour said:
"[105] 'It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason'. Review by a court of the reasonableness of a decision made by another repository of power 'is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process' but also with 'whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law'.
[106] The label 'Wednesbury unreasonableness' indicates 'the special standard of unreasonableness which has become the criterion for judicial review of administrative discretion'. Expression of the Wednesbury unreasonableness standard in terms of an action or decision that no reasonable repository of power could have taken 'attempts, albeit imperfectly, to convey the point that judges should not lightly interfere with official decisions on this ground'.
…
[108] Judicial determination of Wednesbury unreasonableness is constrained by two principal considerations. One is the stringency of the test that a purported exercise of power is so unreasonable that no reasonable repository of the power could have so exercised the power. The other is the practical difficulty of a court being satisfied that the test is met where the repository is an administrator and the exercise of the power is legitimately informed by considerations of policy." [19]
The circumstance, if it were to exist, that a judicial officer would exercise the discretion or power differently from the administrative decision maker is not a sufficient basis upon which judicial review should be successful, or a court should intervene in the process.
It is necessary to deal with three factors: the terms of the contract upon which the Department relies; the justification on the basis of the duty of the Department to its employees to provide a safe workplace; and, the non-delegable function of protecting the children in the Department's care. I will deal with those factors in reverse order.
However, the foregoing is not a statement relating to the rules of evidence. It is a matter of the reasonableness of utilising a request on an adult for a kiss, in circumstances where no action was taken in relation to it, as in any way probative of a risk to children, which is said to be the concern of the Department.
Utilising the conduct of the plaintiff, even at its worst, or in its most unacceptable description, as a basis upon which the Department would determine that the plaintiff posed a risk to children in their care is outside the range of possible, acceptable outcomes and is indefensible because it is not within the bounds of reason.
In terms of the test suggested by the plurality in Li, [21] basing the determination that the plaintiff is a risk to children on the impugned conduct of the plaintiff is considering an irrelevant or extraneous matter. Of course, the foregoing finding does not deal with the submissions of the Department as to the availability of a remedy to which the Court will come.
As a matter of abundant caution, it should be noted that the Work Health and Safety Act is binding on the Crown in the right of New South Wales and is, necessarily, binding on the Department. [24] Under the Work Health and Safety Act, the Crown is liable for offences it may commit in contravention of the statute and, plainly, the Department conducts an undertaking such as to give rise to the duties to which the Court has referred.
The other obvious difficulty with the Department's reliance upon this Clause is the identity of the decision-maker. The Contract defines, relevantly, the Contractor as the contractor under the agreement. The Principal is defined, exhaustively, as "Property NSW within the Department of Finance Services and Innovation". [25]
The affidavit of Ms Parry, to which reference has been made, states:
"[25] Based upon my experience in working for the Department, I understand that Property NSW, is a division of the NSW Department of Planning, Industry and Environment.
[26] Property NSW manages the State of NSW's property portfolio including leased and owned properties of the Crown and its various participating agencies and departments.
[27] As part of its management of government property, Property NSW is responsible for the management of the Whole of Government Facilities Management Services (Cleaning and Maintenance) Contract tor participating agencies, which includes the Department (Government Cleaning Contract).
[28] The Government Cleaning Contract was awarded to a number of organisations who provide cleaning services, one of which included the group of companies which formerly employed the Plaintiff in this proceeding, ISS Property Services Pty Ltd (ISS)." [26]
As earlier stated, the Court has been provided with volumes of documents, each of which relates to the functions of the Department or its officers and the delegation of those functions to other offices of the Department. There is no delegation to the relevant decision-maker of either the First Decision or the Second Decision from the Department of Finance Services and Innovation, nor from "Property NSW".
It is Property NSW and the NSW Department of Finance Services and Innovation which is the Principal under the Contract and is the body or person who is required to act under Clause 5.5.1(e) and (f). The Contract does not give a right or power to the Department to direct the Contractor not to engage a particular employee or no longer to engage the employee.
If the Department is relying upon these terms of the Contract as the power it exercised, it has no such power. The power is reposed in the Principal, which is Property NSW within the Department of Finance Services and Innovation. There was no contractual right for the Department to issue the First Decision.
Further, it is at least arguable that, where a contractor supplies services through an employee, a contractual provision that prevents that corporate contractor from undertaking the services through its chosen employee may be inconsistent with the provisions of s 45D(1) of the Competition and Consumer Act 2010 (Cth). In that scenario, the provisions of s 45D(1)(a)(ii) may apply because the conduct of the Department prevents or hinders the Principal from acquiring the services of ISS, who is not the employer of the officers in the Department who have acted, in concert, to effect an outcome or purpose of which, and an effect of which, is to cause not insignificant loss or damage to ISS. For that purpose, the extended definition of purpose in s 4F of the Competition and Consumer Act is significant. [27]
In those circumstances the contractual provision, were it shown to be in contravention of s 45D of the Competition and Consumer Act, would render the Department's conduct, through its officers, unlawful.
The possibility of the unlawfulness of the conduct gives comfort to the proposition that the contractual powers granted by Clause 5.5.1 paragraphs (e) and (f) are not "at large". They are confined to decisions based upon issues that, pursuant to the Contract, would allow the Principal to reject an employee of a Contractor, when the employee is first sought to be employed on a Department site.
Thus, if, notwithstanding the provision of 100 ID points, it was found that the employee was not the person represented or that there was a mistake in the criminal record check or the working with children clearance or subsequent conduct that, were it to have occurred prior to engagement would have resulted in the checks or clearances being unsatisfactory, then the Principal is capable of excluding the employee; but not otherwise.
The reference to the provisions of s 45D of the Competition and Consumer Act needs to be understood only as a possibility. It is unlikely that, even with the extended definition of "purpose" in s 4F of the Competition and Consumer Act, an officer of the Department excluding a company from providing services through a particular employee would be said to be doing so for a purpose that, more than insignificantly, included causing substantial loss or damage to the business of the corporation providing the services.
Further, in the circumstances now before the Court, is most unlikely that the effect of the conduct would be to cause loss or damage to ISS that was more than insignificant or ephemeral. However, in different circumstances, where, for example, services were provided by a company with only one employee, different considerations might apply.
It is unnecessary to deal, finally, with the limitations on the power granted by Clause 5.5.1(e) and (f) of the Contract. While it would seem that a preferable construction would be to relate paragraphs (e) and (f) to the requirements for initial engagement in the earlier paragraphs of Clause 5.5.1 of the Contract, this judgment does not turn on such a restriction.
Once the Court has determined that it is only the Principal - being Property NSW within the Department of Finance Services and Innovation - that may act under the Clause and, given the absence of delegated authority to act on behalf of Property NSW in the decision-makers, any power under the Contract, however wide or limited, has not been exercised in accordance with the Contract and no power exists under the Contract for the Department to issue such an instruction as the First Decision.
The difficulties in utilising intentional interference, or inducing a breach of contract (both terms are common), become evident once the elements of the tort are understood. They can be summarised as follows:
1. The defendant (in the circumstances now before the Court and a putative cause of action based upon this tort, the Department) must have committed a knowing and intentional interference with the plaintiff's contractual rights without justification. In this circumstance, the plaintiff in the foregoing, would be the plaintiff, Mr Derikuca.
2. There must be a contract in existence that was legally binding on the plaintiff and a third party (in these circumstances, ISS).
3. The interference may either be the procurement or causing of a breach of the contract or the prevention or hindrance of the performance of the contract. [30]
4. The interference may be direct or indirect, and, in the circumstances now before the Court, would be considered direct. If it were not direct the means utilised would need to be unlawful.
5. There is no actual wrong if the conduct by the inducer or interferer (being the defendant) is not unlawful, but where a person directly prevents the performance of a contract by a third person (in this case the plaintiff), the interference is considered, of itself, unlawful. [31] .
6. Even where the plaintiff could not insist upon the performance of the contract by the third party, the defendant cannot rely upon a provision in the contract between the plaintiff and the third party to that effect, if the tort is otherwise shown to have existed.
7. The defendant must have knowledge of the existence of the contract between the plaintiff and the third party with which the defendant has interfered or is interfering.
8. As stated earlier in these elements, the interference must be intentional.
A number of the elements in the foregoing would obviously be satisfied. First, almost by definition, the Department is aware of the contract between ISS and the plaintiff. Secondly, it is the stated intention of the Department to interfere with the contract between ISS and the plaintiff. Thirdly, the interference is direct in that it is a purported requirement on ISS to break the contract of employment under which the plaintiff provides his service.
The difficulty is that the tort has always involved the capacity to justify, or show justification for, the conduct. Thus, where, as is alleged here, the Department has a "higher duty" that justifies the conduct in question, the tort is not available.
Because the Department alleges it is insisting upon conduct that is required by virtue of the duty it has towards its employees, such a statutory duty may justify procuring the breach or non-performance of the contract of employment. The onus of proving the justification is upon the defendant (the Department in these circumstances).
The Full Court of the Federal Court, relying on, amongst others, the judgment of the House of Lords in Quinn v Leatham [32] said:
"[112] In Quinn v Leathem (1901) AC 495, Lord Macnaghten (at 510) stated the principle:
'(I)t is a violation of legal right to interfere with contractual
relations recognised by law if there be no sufficient
justification for the interference.'
The question that arises is whether there has been shown 'sufficient justification' for the appellants' acts. The onus of proving justification is upon the party who has interfered in the contractual relations of another: Camden Nominees, Limited v Forcey (1940) Ch 352 at 365; Edwin Hill and Partners v First National Finance Corporation Plc (1989) 1 WLR 225 at 228; Greig v Insole (1978) 1 WLR 302 at 340, 341; Mark Fishing Co Ltd v United Fishermen and Allied Workers' Union (1972) 24 DLR (3d) 585 at 609 (affirmed by the Supreme Court of Canada (1973) 38 DLR (3d) 316). In this case, the appellants relied at the trial, as his Honour said, on a defence 'that they were justified because the alleged agreement' between (Troubleshooters) and the builder in each case was unlawful, or attended by unlawful conduct' of (Troubleshooters).' So framed, the defence depended upon the allegation that the agreements between Troubleshooters and the builders were agreements to carry out work by means involving the engagement of employees upon terms which were in breach of applicable industrial awards and agreements. Since his Honour rightly found that this element of illegality in respect of the agreements between Troubleshooters and the builders did not exist, the defence of justification, as pleaded, necessarily failed.
[113] However, at the hearing of the appeal, the appellants attempted to place the matter of justification on a wider footing. In written submissions, they repeated the proposition the trial judge had rejected, but added to it contentions that absence of malice was sufficient to render the appellants' actions lawful, and that they were justified "because they believed that it was necessary in order to protect award wages and conditions and the operation of the Victorian building industry agreement." In oral submissions, this was elaborated as a contention that a bona fide and reasonable belief would in each case be sufficient to justify the proved interference with contractual relations, even if the belief turned out to be wrong. Counsel for Troubleshooters countered this contention with a diametrically opposite one; they submitted that even a correct perception of some illegality in Troubleshooters' contracts with the builders could not be held to justify intentional interference with contractual relations, there being suitable legal remedies readily available for the clarification and resolution of the question. There is authority to support this point of view, and his Honour expressed the opinion (which was obiter, having regard to his finding that no illegality affected the respondent's agreements with the builders) that justification would not have been shown, even had the appellants' view of the contracts been correct.
[114] These conflicting arguments call for some examination of the nature and requirements of the defence of justification. It should be pointed out, at the outset, that the appellants conceded the defence is relevant, in the present case, only to the tort of interference with contractual relations. No such defence is available in respect of the claims based on ss.45D and 45E of the Trade Practices Act.
[115] 'What constitutes a lawful justification,' Dixon J said in James v The Commonwealth (1939) 62 CLR 339 at 370, "is a matter of some difficulty ... ." It is not made any less difficult by the fact that the tort of intentional interference with contractual relations may be established either by the proof of conduct, the only unlawful element in which is the intentional procurement of a breach of contract, or by conduct which has the additional quality of being independently unlawful. Assuming that justification is a defence in both cases (it has been questioned whether justification is a defence to a claim for interference with contractual relations by unlawful means: Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots (supra, at 255)) it does not seem right that circumstances capable of justifying an interference with contractual relations which is not otherwise unlawful should necessarily justify also an interference by means that are independently unlawful. If regard be had, on the one hand, to the widely differing types of conduct which may constitute the tort, and on the other, to the great variety of circumstances which may conceivably be put forward as constituting justification, it would not be surprising to find that the courts have, during the whole course of this century, studiously refrained from attempting to limit in advance what might amount to a justification. The method adopted has been to consider, case by case as they have arisen, matters claimed to be sufficient. The authorities show that, upon examination, few circumstances have been seen to warrant a finding of justification. As Gale J of the Ontario High Court noted in Posluns v Toronto Stock Exchange (1964) 46 DLR (2d.) 210 at 270:
'The defence rarely succeeds.'" [33]
It is my intention to direct the parties to file and serve submissions in relation to all of the matters not otherwise addressed in the course of the proceedings thus far and to which the foregoing reasons refer. Those submissions should deal, amongst any other matter not initially the subject of submissions, with the availability of tortious action by the plaintiff against the Department for intentional interference with contractual relations and the justification, if any, for such conduct.
Overwhelmingly, the Court has the impression that there has been a significant misunderstanding between the parties. The evidence, albeit hearsay, from the affidavit of the Department attests to the fact that, in Serbo-Croatian, the language of the plaintiff, the word for "award" and the word for "kiss" are different. I accept that proposition, but it misses the point. In the explanation of the plaintiff, it was the English words that the plaintiff could not find. Of course, his explanation needs to be qualified by the conduct of "puckering up" that occurred, albeit at some distance.
Assuming, as I do, that the allegations are accurate, and leaving aside the reliance even to a minimal extent on the employee who refused to participate in the process, the conduct of the plaintiff was inappropriate. It should not have occurred. It has caused employees distress and fear.
However, neither employee seems to have considered that it was such that the plaintiff should have been dismissed. One refused to be involved in any disciplinary process; the other referred to the possibility of disciplinary action if the conduct were repeated. There is a degree to which the conduct evidences cultural differences that bring into play the policies that underpin the legislative scheme embodied in the Racial Discrimination Act.
In my view, the issue is capable of being resolved on a longer-term basis and I am requiring the parties to mediate the issue before a Registrar of the Court. I am aware that the prior mediation failed, but this is a matter that should resolve.
Further, the complexities of the causes of action, the lack of means of the plaintiff, and his inability otherwise to obtain legal assistance satisfies me that the plaintiff should be referred to the Pro Bono Panel for legal assistance.
The Court makes the following orders:
1. An order in the nature of certiorari quashing the decision of the defendant to include the name of the plaintiff on the Not to be Employed List created and maintained under the provisions of s 7E of the Education (School Administrative and Support Staff) Act 1987 (NSW) and/or s 7(1)(e) of the Teaching Service Act 1980 (NSW);
2. A declaration that the defendant has no power under the contract between Property NSW and ISS Property Services Pty Ltd to exclude the plaintiff pursuant to the terms of Clause 5.5.1(e) or (f) from school sites;
3. The parties are referred to mediation before the Registrar of the Court, which mediation should also include ISS Property Services Pty Ltd, which mediation should occur on or before 23 September 2022;
4. Each party is to file and serve submissions on the outstanding issues referred to in the reasons for judgment by close of business on 7 October 2022, if the proceedings and controversy are not resolved at the mediation;
5. Pursuant to the provisions of the Uniform Civil Procedure Rules 2005 (NSW), r 7.36, I refer the plaintiff to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for advice; representation in the mediation and any further proceedings in the Court; and the crafting of the written submissions required by these orders.
Work Health and Safety Act 2011 (NSW), s 19.
Ibid, s 19(5).
Work Health and Safety Act 2011 (NSW), s 10.
Exhibit 2, pp 388 and 389.
Affidavit of Ms Sarah Jane Parry, 22 December 2021, Exhibit 2, p 164 at [25]-[29].
Carfino v Australian Basketball Federation Incorporated (1988) ATPR 40-895, Federal Court of Australia, unreported, 1 February 1988 (Wilcox J).
Lumley v Gye (1853) 2 E & B 216; 118 ER 749.
See Williams v Hursey (1959) 103 CLR 30; [1959] HCA 51; Allen v Flood [1989] AC 1; Stratford v Lindley [1965] AC 269; OBG v Allan; Douglas v Hello! (No 3) [2008] 1 AC 1.
Torquay Hotel Co Ltd v Cousins (1969) 2 Ch 106; [1969] 1 All ER.
Thomson v Deakin [1952] Ch 106; Torquay Hotel, supra; Stratford v Lindley [1965] AC 269.
Quinn v Leathem [1901] AC 495.
Building Workers' Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104; [1991] FCA 96 (Wilcox, Burchett and Ryan JJ).
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Decision last updated: 14 September 2022