Harper v Gold Coast Pistol Club Limited

LOGAN J: 1 Mrs Kathryn Harper instituted proceedings in the Fair Work Division of the then-Federal Circuit Court of Australia against the Gold Coast Pistol Club Limited (Club) as first respondent, and various named individual respondents, in which she alleged that she had been subject to adverse action in terms of the Fair Work Act 2009 (Cth). The detail of her claim is more particularly described in an amended statement of claim filed in that proceeding. Mrs Harper also made, via what is termed in the practice of that court an "application in a case", an interlocutory application in which, materially, she sought an order restraining the respondents from interfering with her quiet use and enjoyment of the premises known as the Cottage, 85 Edmund Rice Drive, Ashmore in Queensland (Cottage), pending final resolution of her substantive application. 2 That interlocutory application came on for hearing before a judge of that court on 20 October 2021. For reasons delivered ex tempore that day, his Honour dismissed that application: see Harper v Gold Coast Pistol Club Limited [2021] FedCFamC2G 191. An apparently ancillary order made by his Honour that day was that the order of dismissal: … does not affect the ability of the [r]espondents to take any steps before Queensland Civil and Administrative Tribunal in furtherance of the [n]otice to [l]eave issued on 20 October 2021, but the applicant does not have to respond to any such steps before 4 November 2021. 3 The orders made that day by the learned primary judge were undoubtedly interlocutory. That being so, Mrs Harper requires a grant of leave to appeal before she may appeal to this Court against the order dismissing her application for the interlocutory injunctive relief mentioned. 4 In Sabapathy v Jetstar Airways (2021) 283 FCR 348 (Sabapathy), at [14] - [16], Katzmann J and I summarised, in our joint judgment, considerations pertinent to the granting of leave to appeal by reference to earlier authority. One of the authorities to which we made reference was Re Will of Gilbert (1946) 46 SR (NSW) 318, at 323, in which Jordan CJ stated: [T]here is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of judges of first instance, the result would be disastrous to the proper administration of justice. 5 That statement was expressly endorsed by the High Court in another case to which we referred, Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, at 177. 6 To the summary of authority offered, with the agreement of Flick J, by me and Katzmann J in Sabapathy might be added this consideration. There is, in industrial cases, both a public interest, as well as a private interest reposing in the parties, in the timely quelling, by an exercise of judicial power, of a workplace controversy. That consideration is relevant in deciding whether to grant leave to appeal in an industrial case. 7 In this particular case, the consequence of the order of dismissal placed Mrs Harper in jeopardy of ejection from the Cottage. She had occupied those premises for very many years indeed. Appreciating that this case was not one which concerned merely an interlocutory value judgment on a question of practice and procedure but did entail, in the manner mentioned, an impact on a particular, hitherto enjoyed right. As well as having had the benefit of the earlier filed and served written outline of submissions of counsel for Mrs Harper, and, for that matter, an exchange with me when the case was called on for hearing, Mr Smith, with respect appropriately, did not make controversial whether leave to appeal should be granted. 8 The case was listed on the footing that argument in respect of the leave to appeal application would be treated as argument on any consequential, substantive appeal. The respondents did very much put in issue whether any consequential appeal should be allowed. In these circumstances, I do not propose further to reflect upon whether leave to appeal should be granted. In my view, Mrs Harper's case at least enjoyed a sufficient prospect of success to warrant a grant of leave, hence my observation that the stance adopted on behalf of the respondents was appropriate. 9 I turn, then, to consider the question of whether the appeal should be allowed. 10 As a preliminary observation, it is necessary to remember that the reasons for judgment of the learned primary judge were delivered ex tempore. They must be read taking that into account. Quite apart from the high volume of cases with which that court and its present manifestation had, and have, to deal, it is not hard to see, in the circumstances of this particular case, why the course of delivering reasons for judgment ex tempore commended itself to the learned primary judge as being in the interests of justice. All this acknowledged, it remains the case that if, on a fair reading of the reasons for judgment as revised, an error or errors of principle is or are disclosed, an appeal must be allowed. 11 It is necessary that Mrs Harper demonstrate errors of principle, as was so relevantly highlighted on behalf of the respondents. The decision as to whether or not to grant the interlocutory injunction sought by her entailed the exercise of a judicial discretion. It would not be an appropriate exercise of appellate jurisdiction to interfere in the exercise of a discretion merely because I might have exercised that discretion in a different way on the merits. This was accepted by Mrs Harper in her counsel's submissions. Rather, Mrs Harper's submission was that his Honour had erred in principle, having regard to the ordained approach for deciding whether or not to grant interlocutory injunctive relief. 12 The ordained approach is that found in the joint judgment of Gummow and Hayne JJ, with whom, in this regard, Gleeson CJ and Crennan J agreed in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 (ABC v O'Neill). In their joint judgment, at [65], Gummow and Hayne JJ stated: 65 The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued: "The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief … The second inquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted." By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal: "How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks." [footnote references omitted] 13 Their Honours also observed, at [70]: 70 … There is then no objection to the use of the phrase "serious question" if it is understood as conveying the notion that the seriousness of the question, like the strength of the probability referred to in Beecham, depends upon the consideration emphasized in Beecham. 14 The reference in this passage to Beecham is a reference to Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618. Their Honours further stated, at [71], that the governing consideration is: … that the requisite strength of the probability of ultimate success depends upon the nature of the right asserted and the practical consequences likely to flow from the interlocutory orders sought. 15 Before turning to his Honour's reasons, some reference should be made to the general background of the case. The application alleging adverse action arose out of a termination by the Club of Mrs Harper's employment in mid-2021. Mrs Harper claimed that she had an agreement with the Club which vested in her a tenancy for life or a licence, pending her ability to undertake caretaker duties to occupy the cottage. Her contention was that the termination of her employment and the consequential action to give her notice to quit the Cottage was adverse action by the Club. A large number of affidavits describing a lengthy history of association between Mrs Harper and her late husband and the Club were filed and read in the application before the learned primary judge for the interlocutory injunctive relief sought. 16 It is quite apparent from those affidavits that some considerable factual controversy attended the precise terms under which Mrs Harper came to have occupancy - and have continued occupancy - of the Cottage. A very great deal indeed depended upon which accounts of oral discussions leading to agreement were accepted, and the status of successive resolutions of the Club's committee relative to her employment and occupancy of the Cottage. Those resolutions, as was put for Mrs Harper, were by no means readily construed to have but one meaning. All of this grounded a submission on behalf of Mrs Harper that, when one looked at the reasons of the learned primary judge as a whole, his Honour had approached the question of whether there was a prima facie case as if, in effect, he was determining the case summarily. 17 Thus, it was put on behalf of Mrs Harper that this constituted, having regard to the discussion of prima facie case in ABC v O'Neill, an error of principle. 18 There is, with respect, a degree of tension the ordained approach in his Honour's reasons for judgment. At [38], his Honour stated: 38 It seems to me then, when I look at it all, trying to look at the best-case scenario for the applicant, that I cannot see that the applicant's contentions rise to the level of being a prima facie case. I am cognisant of what the High Court has said about what constitutes a prima facie case in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 at [65]. 19 This might be contrasted, with respect, with [16] and [17] of his Honour's reasons for judgment, in which he stated: 16 What is clear from the recollections of Mr Schukraft, Mr Hall and every other person who has shared their recollections, is that there was no agreement by the committee or club members that this residence, or caretaker's residence, was to be lived in by the Applicant for life. The only person who talks of this arrangement being "for life" is the Applicant. There is no support on the evidence anywhere else that those words "for life" were ever used. In fact, Mr Schukraft, who is the person who most concurs with the applicant's recollection, specifically denies ever using the words "for life". 17 What also is clear is that the applicant, and every other person other than Mr Schukraft talk of there being one discussion, and one discussion only, about the residence. All other recollections about the cottage were that it was the caretaker's residence and it was for the applicant in her role as caretaker and manager/administrator. [emphasis in original] 20 The Mr Schukraft referred to in the passages just quoted is a some-time president and earlier vice president of the Club. Mr Hall, also mentioned, is a some-time president of the Club. 21 These paragraphs, as was put for Mrs Harper, have a conclusionary quality about them. In effect, they dismiss, without conducting a trial, Mrs Harper's evidence. Further, as was also put for Mrs Harper, they approach the case on the basis that, in order to prove the agreement or arrangement alleged by her with respect to occupancy of the Cottage, it was necessary for Mrs Harper's evidence to be corroborated. That is not so. That, of course, is not to say that, at trial, there may not be difficult questions to resolve in terms of exactly the nature of the arrangement, having regard to the evidence led. But, except in the very clearest of the cases, it is not in keeping with the court's role in deciding whether to grant interlocutory injunctive relief, insofar as the consideration of prima facie cases is concerned, to decide what is more probable than not. 22 What is needed is, as stated, an assessment of whether there is a sufficient case established to warrant the granting of the relief sought. 23 His Honour was also influenced, as was put on behalf of Mrs Harper, by a view that it was contrary to the Club's constitution for there to have been an agreement or arrangement as alleged by Mrs Harper. His Honour stated, at [36] and [37]: 36 Whilst it may be that the club can ask for a person to provide certain services, or perform certain duties, and because of that, the club will provide a service or remuneration, the fact is that now the applicant is not performing any duties for the club. She has had her membership terminated, but still is of the view that she is the one who is in control of whether it is that she lives in that cottage or not. 37 That would seem to me to be something that is inconsistent with the constitution of the club and the requirement of the club to operate for the benefit of all members. 24 The learned primary judge did not give particularity, in this or any other part of his reasons for judgment, to the particular provisions of the Club's constitution, which in his view operated against an arrangement or agreement as alleged. 25 It was, however, common ground that the particular parts of the Club's constitution which had been ventilated in oral submissions before his Honour were the objects of the club as found in clause 2, and clauses 4(a) and 4(b) of the constitution. These provide: 2. The objects for which the Club is established are:- 2(a) To provide a Pistol Range at or near the Gold Coast or any other place as decided by the Committee, in the State of Queensland, and to layout and prepare such range for shooting and other conveniences connected therewith. 2(b) To promote competitive pistol shooting and other athletic sports and pastimes. 2(c) To foster the spirit of comradeship amongst its members. 2(d) To promote a sense of responsibility in relation to firearms in the community generally. 2(e) To hold and arrange pistol shoots and other matches, sporting events, trials and competitions and provide or contribute toward the provision of prizes, awards and distinctions. … 4(a) The income and property of the Club, whencesoever derived, shall be applied solely towards the promotion of the objects of the Club as set forth in this memorandum of association and no portion thereof shall be paid or transferred directly or indirectly, by way of dividend, bonus or otherwise howsoever by way of profit, to members of the Club. 4(b) Provided that nothing herein shall prohibit the payment, in good faith, of reasonable and proper remuneration to any officer or servant of the Club, or to any member of the Club, in return for any services actually rendered to the Club, nor prevent the payment of interest at a rate not exceeding interest at the rate of the time being charged by bankers in Brisbane for overdrawn accounts on money lent, or reasonable and proper rent for premises demised or let by any member to the Club; but so that no member of the Council of Management or governing body of the Club shall be appointed to any salaried office of the Club, or any office of the Club paid by fees, and that no remuneration or other benefit in money or money's worth shall be given by the Club to any member of such Councilor Government Body except re-payment of such out-of-pocket expenses and interest at the rates aforesaid on money lent or reasonable or proper rent for premises demised or let to the Club. Provided the provision last aforesaid shall not apply to any payment to any company of which a member of the Council of Management or governing body may be a member and in which such member shall not hold more than one- hundredth part of the capital, and such member shall not be bound to account for any share of profits he may receive in respect of such payment. 26 It is, of course, not just not unnecessary but not desirable, unless the case be pellucidly clear, to express any concluded view in the appeal as to the meaning of, in particular, the proviso found in clause 4(b). However, there is authority to be found, and that authority is collected in a judgment of a Full Court of this Court, Oliveri v Australian Industrial Relations Commission (2005) 145 IR 120 (Oliveri), as to the breadth of meaning of the word "remuneration". Context, of course, is everything when it comes to construing "remuneration" as found in the constitution. But Mrs Harper does at least, as was put for her, have supporting authority for a breadth of meaning. In Oliveri at [26], the Full Court stated: It is abundantly clear on the authorities that "non-cash" rewards can constitute remuneration. 27 Furthermore, that remuneration might arguably - and that is all that is necessary for present purposes - take the form of a right to occupy, in the future, the Cottage in return for services being presently rendered. Yet further, in terms of dealings as between Mrs Harper and the Club, Mrs Harper dealt with persons who had at least apparent authority. 28 It does not necessarily follow from those dealings that an inhibition in the constitution might prevent the formation of a binding agreement. Yet further, s 125 of the Corporations Act 2001 (Cth) would fall for consideration in relation to any such inhibition in the constitution. As it happens, and in any event, there are subsequent resolutions of the Club's committee. These resolutions, as I have earlier mentioned, do not necessarily admit but one construction. They are, in any event, not the agreement themselves but rather one party's endeavouring to compose, in terms of an authorising resolution, the terms of an agreement earlier struck orally as between an officer of the Club and Mrs Harper. 29 In construing the events, and exactly what was the agreement formed and its terms, observations made by Allsop J, (as his Honour then was), with the agreement of Drummond and Mansfield JJ, in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 (Branir), at [369] are pertinent: 369 As I have earlier said in relation to the Share Agreement and as the above extract of the respondents' submissions makes clear, the contract operated and was intended to operate from a specific point in time: 23 December. There was in fact a clear point of crystallisation of contractual intent. The contract arose from the prior conduct and communications of the parties, in particular around mid-December. Mr Campbell QC called this a ''springing contract'' and something not known to the law. On the contrary, a number of authorities discuss the need not to constrict one's thinking in the formation of contract to mechanical notions of offer and acceptance. Contracts often, and perhaps generally do, arise in that way. They can also arise when business people speak and act and order their affairs in a way without necessarily stopping for the formalities of dotting i's and crossing t's or where they think they have done so. Here, the i's were not dotted and the t's were not crossed because of Mr Graham's conduct. Sometimes this failure occurs because, having discussed the commercial essentials and having put in place necessary structural matters, the parties go about their commercial business on the clear basis of some manifested mutual assent, without ensuring the exhaustive completeness of documentation. In such circumstances, even in the absence of clear offer and acceptance, and even without being able (as one can here) to identify precisely when a contract arose, if it can be stated with confidence that by a certain point the parties mutually assented to a sufficiently clear regime which must, in the circumstances, have been intended to be binding, the court will recognise the existence of a contract. Sometimes this is said to be a process of inference or implication. For my part, I would see it as the inferring of a real intention expressed through, or to be found in, a body of conduct, including, sometimes, communications, even if it be the case that the parties did not consciously advert to, or discuss, some aspect of the relationship and say: ''and we hereby agree to be bound'' in this or that respect. The essential question in such cases is whether the parties' conduct, including what was said and not said and including the evident commercial aims and expectations of the parties, reveals an understanding or agreement or, as sometimes expressed, a manifestation of mutual assent, which bespeaks an intention to be legally bound to the essential elements of a contract. The authority for the above can be found in, at least, the following: Meates v Attorney-General [1983] NZLR 308 at 377 per Cooke J (as his Lordship then was); Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Aust) Pty Ltd (1988) 5 BPR 11,110 at 11,117-11,118 per McHugh JA (Hope and Mahoney JJA concurring); Vroon BV v Foster's Brewing Group [1994] 2 VR 32 at 81-83 per Ormiston J (as his Honour then was); Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 at 555 per McHugh JA (with whom Samuels JA concurred); Pagnan SpA v Feed Products Ltd [1987] 2 Lloyd's Rep 601 at 611 per Bingham J (as his Lordship then was) affirmed on appeal at 615; Pobjie Agencies v Vinidex Tubemakers [2000] NSWCA 105 at [22]-[24] per Mason P (with whom Meagher and Handley JJA concurred); Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 at [74]-[80] per Heydon JA; though see Toyota Motor Corporation Australia Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106 at 178 per Tadgell J (as his Honour then was); and in this context see also Electrical Enterprises Retail Pty Ltd v Rodgers (1988) 15 NSWLR 473 at 489 per Kearney J and Manzi v Smith (1975) 132 CLR 671 at 674. 30 Suffice it to say, having regard to Branir, it was singularly important, indeed, for all of the surrounding circumstances as evidenced to be considered. On the evidence then to hand, his Honour, with respect, having regard to a correct understanding and application of principle as espoused, in ABC v O'Neill, should have concluded that there was a prima facie case evidence. The fact that discovery was both contemplated by the parties, and had yet to occur, ought also, with respect, to have sounded a cautionary note in relation to what was in effect a summary disposition of the point. 31 Also of relevance in relation to the subject of construction of the agreement were observations made French CJ and Hayne, Crennan and Kiefel JJ in Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd (2014) 251 CLR 640, at [35]. It was necessary to reach an objective conclusion, having regard to surrounding circumstances. In turn, those surrounding circumstances in this case required findings of fact based on findings as to credit. This too, with respect, ought to have led to a conclusion that there was a sufficient case in terms of the first consideration as specified in ABC v O'Neill. 32 Yet further, the case for an agreement was not one which was wholly resolved by an appreciation of commercial purpose. It was clear to the point of demonstration, on the evidence before the learned primary judge, that questions of sentiment and appreciation in respect of long voluntary service by Mrs Harper, and earlier she and her late husband, to the Club intruded. 33 Determining what exactly was the agreement and its terms was one for trial. 34 Thus, whilst, read in isolation, it might be thought, having regard to [38], that his Honour had directed himself correctly to principle in relation to the need to determine prima facie case and what was entailed in so doing, a more detailed consideration of the reasons for judgment leads to a contrary conclusion. 35 His Honour's conclusion, that there was no prima facie case: see [39] of his Honour's reasons for judgment - informed his statement, also at [39], that: … I do not need to look at the balance of convenience. 36 His Honour had before him evidence that Mrs Harper had occupied the Cottage for some 14 years. In the course of that time, she had made some improvements. Her evidence was that she had made inquiries of alternative rental accommodation on the Gold Coast and that she was not able, as at the time of hearing of the application, to locate alternative properties within her price range of $275 a week for rent. She deposed to there being, on her inquiries, a very high demand for rental properties. To this, his Honour stated, at [42]: 42 It is difficult to see why the Applicant needs to live at the Gold Coast. The Applicant has supplied no information as to friends or relatives or other family members with whom she may be able to stay, but neither has she given any information as to why it is that she is looking for accommodation at the Gold Coast when the Applicant has no ties, or need, to be at the Gold Coast since her membership of the pistol club had been terminated. She has not explained why she has not looked at cheaper accommodation in places such as Coomera or Pimpama or Logan. 37 There was no evidence, with respect, before his Honour that cheaper accommodation was available in places such as Coomera or Kinpalmer or Logan. His Honour was not, with respect, entitled to take judicial notice on this subject. 38 There was also evidence, as Mr Smith highlighted before his Honour, and to which his Honour did not avert in his consideration of balance of convenience, of a desired alternative use of the Cottage by the Club. That alternative use was in respect of training of members. There was evidence that alternative sites for this purpose at the Club's premises had proved inconvenient or impractical for a variety of reasons, particularly given the volume of demand from the Club's membership base. However that may be, whilst the desired alternative use might explain motivation, if, truly, there was a right as asserted by Mrs Harper and adverse action taken, then her particular needs - and she is aged 75 - made that right of occupancy a very valuable right indeed. 39 It was always necessary in the present case to give attention to the balance of convenience. That is because, if one does have regard to principle in relation to the establishment of a prima facie case, there was such a case. A balancing exercise was required. His Honour did not because, doubtless, of the emphatic conclusion he reached as to an absence of a prima facie case, engage in any such balancing exercise. Even if fairly read, it might be thought from his reasons for judgment that his Honour did engage in that balancing exercise that consideration was infected by acting on a fact, namely cheaper accommodation in the locales I have mentioned, for which there was no evidence whatsoever before his Honour. 40 What follows from the foregoing is that Mrs Harper has established that there were errors of principle by the learned primary judge. The successive resolutions of the Club, particularly in 2010 and 2018, did not admit of but one meaning. They do admit of the possibility of there having been an anterior agreement as deposed to by Mrs Harper. Or in any event, they admit of an agreement or arrangement being ratified, which would see an ongoing right of occupancy. It is not for me to determine definitively whether that is so, only to recognise the existence of a prima facie case. 41 Overwhelmingly, in the present case, the balance of convenience favours the continuance of Mrs Harper's occupancy, pending trial. I have, therefore, in deciding what relief to grant as a consequence of allowing the appeal, expressly inquired of counsel for Mrs Harper whether or not she would give an undertaking that, pending the hearing and determination of her application by the Circuit Court, she would keep the Cottage in the manner of a reasonable tenant and continue to pay rent in the sum of $275 per week. Such an undertaking has been given by Mrs Harper by her counsel. 42 It is relevant, also, to take into account the length of time any interlocutory injunction might run. Each counsel for the respective parties were agreed that, if the case proceeded to trial, it might take at least two weeks. It is not hard to see, having regard to the number of deponents and the legal issues which would need to be addressed - not just in terms of industrial law or even contract law, but also land law and tenancy law - how a case might take that length of time. At present, there is no jurisdictional objection raised expressly for the Club, although the contingency exists of an argument as to whether the invocation of federal jurisdiction via the adverse action claim is colourable. I make no particular observation in relation to what is a mere contingency. 43 What is clear enough is that it is so very desirable that this case be heard as soon as possible. In the Federal Circuit Court and Family Court and for that matter, even if this Court that presents difficulties in relation to a two-week trial. There does seem to me to be a possibility, if the case takes, as the respondents considered it might, greater than two and perhaps three weeks, that its prospect of being heard this year is moot. I have taken that into account in relation to deciding the relief to grant on the appeal. Even so, it seems to me that the preservation of the status quo is favoured in terms of balancing the prima facie case and the balance of convenience. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.

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