McGuirk v The University of New South Wales [2009] NSWSC 1424 | Case summary

McGuirk v The University of New South Wales [2009] NSWSC 1424 | Case summary | Zoe

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Horton v Jones (No. 2) (1939) 39 SR(NSW) 305 Banque Commerciale SA En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 Dare v Pulham [1982] 148 CLR 658 Australian Competition and Consumer Commission v Fox Symes & Associates Pty Limited [2005] FCA 1071 Kirby v Sanderson Motors Pty Limited (2001) 54 NSWLR 135 Gunns Limited v Marr [2005] VSC 251 Meckiff v Simpson [1968] VR 62 Shelton v National Roads & Motorists Association Limited [2004] FCA 1393 Northam v Favelle Favco Holdings Pty Limited (Bryson J, 7 March 1995, BC9504276) Charlie Carter Pty Limited v Shop Distributive and Allied Employees Association (1987) 13 FCR 413 Trade Practices Commission v David Jones (Australia) Pty Limited (1985) 7 FCR 109 Beach Petroleum NL v Johnson (1991) 105 ALR 456 Rubenstein v Truth & Sportsman Limited [1960] VR 473 H 1976 Nominees Pty Limited v Galli (1979) 30 ALR 181 Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited & Ors [2008] NSWCA 243 White v Overland [2001] FCA 1333 Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 83 ALJR 951 Turner v Bulletin Newspapers Co Pty Limited (1974) 131 CLR 69 Fleet v Royal Society for the Prevention of Cruelty to Animals NSW and Ors [2005] NSWSC 926 Dey v Victorian Railway Commissioners (1949) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Webster v Lampard (1993) 177 CLR 598 Brimson v Rocla Concrete Pipes Limited (1982) 2 NSWLR 937 Agar v Hyde (2000) 201 CLR 552 Wickstead v Browne (1992) 30 NSWLR 1 Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1995-1997) 188 CLR 241 Preston v Star City Pty Limited [1999] NSWSC 1273 Wearne v Southern Cross University [2006] FCA 1033 McFarlane v Daniell (1938) 38 SR(NSW) 337 Wardley Australia Limited v The State of Western Australia [1992] 175 CLR 514 CASES CITED : Bond Corporation Pty Limited v Thiess Contractors Pty Limited (1987) 14 FCR 215 Brown v Jam Factory Pty Limited (1981) 35 ALR 79 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 Lazarus Estates Limited v Beasley [1956] 1 QB 702 Northern Territory v Mengel [1996] 185 CLR 307 Rogers v The Queen (1994) 181 CLR 251 Hunter v Chief Constable of the West Midlands Police [1982] AC 529 Byrne v Australian Airlines Limited [1995] 185 CLR 410 O'Connor v Commissioner for Government Transport (1959) 100 CLR 225 Mihaljevic v Longyear (Australia) Pty Limited (1985) 3 NSWLR 1 Reid v Rush & Tomkins Plc [1990] 1 WLR 212 Sattin v Nationwide News Pty Limited (1996) 39 NSWLR 32 Sullivan v Moody [2001] 207 CLR 562 Gacic v John Fairfax Publications Pty Limited [2005] NSWSC 1210 Nationwide News Pty Limited v Naidu (2007) 71 NSWLR 471 Koehler v Cerebos (Australia) Limited [2005] 222 CLR 44 Yovicherich v Royal Australian and New Zealand College of Radiologists [2005] NSWSC 1208 Priest v State of New South Wales [2006] NSWSC 12 Quinn v Gray [2009] VSC 136 McKellar v Container Terminal Management Services Limited (1999) 165 ALR 409 Rajski v Bainton (1990) 22 NSWLR 125 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Sanders v Snell (No 2) (2003) 130 FCR 149 McGee v Yeomans [1977] 1 NSWLR 273 Slivak v Lurgi (Australia) Pty Limited [2001] 205 CLR 304 Jeans v Cleary [2006] NSWSC 647 Chan v Sellwood [2009] NSWSC 1335 Perpetual Trustees Victoria Limited v Dunlop [2009] VSC 331 Hamod v State of New South Wales (No. 12) [2009] NSWSC 242 State of New South Wales v Spearpoint [2009] NSWCA 233

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Claim that No Reasonable Cause of Action Disclosed 36 With respect to the Defendant's submissions that no reasonable cause of action is disclosed in certain respects in the proposed Amended Statement of Claim, I keep in mind the following principles which apply either directly or by analogy. 37 A very clear case is required before a litigant is prevented from pleading a case upon the basis that no reasonable cause of action is disclosed, and this power should be sparingly employed: Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129; [1965] ALR 636; Webster v Lampard (1993) 177 CLR 598 at 602-3; [1993] HCA 57. The test is not whether the Plaintiff would probably fail in his action against the Defendant, it is whether the material before the Court demonstrates that the action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail: Webster v Lampard at 602. The fundamental principle is that prima facie a plaintiff is entitled to have his case come to trial, and that an application to deprive him of that right will succeed only in the clearest of cases: Brimson v Rocla Concrete Pipes Limited (1982) 2 NSWLR 937 at 944. Usually, a party is not to be denied the opportunity to place his case before the Court in the ordinary way, and after taking advantage of the usual interlocutory processes. For a plaintiff to be shut out upon the basis that no reasonable cause of action is demonstrated, a high degree of certainty is required about the ultimate outcome of the proceeding, if it were allowed to go to trial in the ordinary way: Agar v Hyde (2000) 201 CLR 552 at 575-6. 38 For practical purposes, the present Defendant undertakes the burden of establishing that there is no triable issue by contending that there is no reasonable cause of action so that the amendment ought not be allowed: Wickstead v Browne (1992) 30 NSWLR 1 at 11. The General Steel test remains the primary touchstone for such an application. The mere fact (if it be the case) that a plaintiff's prospects of success might be characterised as slim, would not be enough to strike out a pleading: Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1995-1997) 188 CLR 241 at 271; Preston v Star City Pty Limited [1999] NSWSC 1273 at [31]. The question for determination is whether a reasonable cause of action is disclosed, that is a cause of action which has some chance of success, or which could conceivably give the plaintiff a right to relief, or which, although weak, is properly debatable, and has some apparent legitimate basis, if the facts upon which it is alleged to be based are made good: Preston v Star City Pty Limited at [37]. 39 The summary disposal procedure may be used even though a difficult question of law is invoked, and extensive argument is necessary to demonstrate that the case is so plainly untenable that it cannot succeed: General Steel at 130. The Proposed Amended Statement of Claim

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61 The Defendant submitted that the particulars furnished, as part of paragraph 413 of MFI1, did not support the representation alleged in that paragraph, with the particulars comprising no more than bare assertions of publication and representations without identification or specification of the representations actually relied upon. 62 In addition, the Defendant submitted that the proposed pleadings were embarrassing, and failed to comply with Rule 15.3 UCPR which requires a pleading to give particulars of any fraud, misrepresentation, breach of trust, wilful default or undue influence on which the party relies. The Defendant submitted that there was a failure to comply with the requirements of pleadings referred to by Bryson J in Northam v Favelle Favco Holdings Pty Limited and Branson J in Wearne v Southern Cross University. 63 In addition, the Defendant submitted that the allegations of reliance and causation of damage were embarrassing. Reliance was placed upon the decision of French J, in Bond Corporation Pty Limited v Thiess Contractors Pty Limited (1987) 14 FCR 215 at 222, that a plaintiff claiming damages for breach of s.52 TPA must plead the necessary material facts to establish the causal relationship between contravention and the loss which is necessary to the cause of action. The Defendant submitted that this had not been done in this case. 64 The Defendant submitted that a number of paragraphs between paragraphs 415 to 424 of MFI1 simply pleaded a conclusion. No effort had been made to identify which policies the Plaintiff asserted were not complied with, or the basis on which it was said they were not complied with, let alone how the various acts of non-compliance relied upon were causative of loss. It was submitted that these vices were not cured by what was said to be the "bald statement" in paragraph 423 that, had the Plaintiff known that the Defendant's representations were false, he would have directed his energies into some other career path. 65 The Defendant submitted further that the Plaintiff presses a time-barred claim under the TPA, in that the time for bringing any action for damages under that Act expired in July 2007. 66 With respect to paragraph 418 of MFI1, the Defendant submitted that the facts pleaded were not capable of sustaining a reasonable cause of action. It was submitted that, on the basis of the facts alleged, the Plaintiff could not have relied on the first three representations particularised in paragraph 418 at any time after 1 March 2002. Any representations, if made, had ceased to be operative: Brown v Jam Factory Pty Limited (1981) 35 ALR 79 at 86. The Defendant submitted that the manner in which allegations of reliance and causation of damage were made was embarrassing: Bond Corporation Pty Limited v Thiess Contractors Pty Limited at 222. 67 The broad submission of the Plaintiff with respect to the TPA claim was that the Defendant ought be able to discern the case against it from the proposed pleading. Further, he submitted that the Court should not shut him out from asserting such a claim upon a limitations basis, once again citing Wardley Australia Limited v State of Western Australia in this respect. He submitted that the issues raised by the Defendant involved contestable issues of fact and law which ought remain for determination at a final hearing. The FTA Claim 68 This claim appears to rest on two sets of alleged representations. These representations are similar to the claims in relation to breach of the TPA:

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69 The Defendant repeated the submissions made in relation to the TPA claim that the pleadings are embarrassing and disclose no reasonable cause of action. It was submitted that the claim was time barred by application of s.68(2) FTA. 70 The Plaintiff relied upon submissions made concerning the TPA claim under this heading. Action on the Case - The Fraudulent Conduct Claim 71 The Defendant noted that the Plaintiff alleges a course of "fraudulent conduct" engaged in to deny him the benefit to which he was entitled under his contract of employment. The Defendant submitted that the claim suffers from several defects and that leave ought not be granted for it to be brought. 72 Firstly, the Defendant submitted that the cause of action relied on is obscure. The Defendant submitted that it was well established that fraudulent conduct may have a vitiating effect on judgments, contracts or arrangements affected by it (cf SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at 196-197 [15]-[17]). However, absent a claim for deceit, a mere allegation of fraud does not give rise to a cause of action. 73 Secondly, the Defendant submitted that the allegations made were highly embarrassing. An allegation in the nature of fraud must be pleaded with specificity and particularity: Banque Commerciale SA En Liquidation v Akhil Holdings Limited at 285; Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 at 693, 700; Rules 15.3 and 15.4 UCPR. The Defendant submitted that paragraphs 438 to 440 of MFI1 manifestly failed to comply with these requirements. 74 The Defendant pointed to the words "by reason of the facts pleaded above" in paragraph 438, which did not refer the reader to any specified part or parts of the 404 paragraphs which constituted the recital of events in MFI1. It was submitted that the pleading was embarrassing and that nothing contained in paragraphs 438-440 of MFI1 overcame this problem. 75 Finally, the Defendant submitted that the claim articulated in the particulars to paragraph 438 was insufficient to make good an allegation of fraudulent conduct. 76 The Plaintiff submitted that "fraud unravels everything", citing the decision of Denning LJ in Lazarus Estates Limited v Beasley [1956] 1 QB 702 at 712-713, so that it was open to him to advance a cause of action based upon alleged fraudulent conduct. He emphasised that this claim was an action on the case, citing Northern Territory v Mengel [1996] 185 CLR 307. He submitted that this claim was not a proper subject for determination at an interlocutory stage given that there were contestable issues of fact and law involved. 77 The Plaintiff submitted that the Defendant had ample notice of the nature of the claim he was bringing, and its particulars, from the proposed Amended Statement of Claim so that, in his submission, the pleading was not embarrassing. Action on the Case - Breaches of Protected Disclosures Act 1994 78 The Plaintiff claims that certain officers of the Defendant terminated his employment substantially in reprisal for disclosures allegedly made by him, and that this constituted a breach of the Protected Disclosures Act 1994. 79 The Defendant submitted that leave ought not be granted for this claim to be brought for two reasons. Firstly, the Defendant submitted that no reasonable cause of action is disclosed. The Protected Disclosures Act 1994 does not confer any civil right of action in respect of breaches of the Act. Rather, it creates a summary offence which is committed where a person takes detrimental action against another in reprisal for the making of a protected disclosure: s.20(1) Protected Disclosures Act 1994. 80 Secondly, the Defendant submitted that the Plaintiff had previously brought criminal prosecutions against John Ingleson, Roger Layton, Neil Morris, John Niland and Greg Whittred, with these criminal prosecutions being withdrawn and dismissed in the Downing Centre Local Court on 11 February 2005 (Exhibit 1). The Defendant submitted that the attempt to revive the earlier allegations by way of a civil action constituted an abuse of process of the Court: Rogers v The Queen (1994) 181 CLR 251 at 255, 280; Hunter v Chief Constable of the West Midlands Police [1982] AC 529. The Defendant emphasised that the two-year time limit under s.20(3) of the Act had long since expired. 81 Thirdly, the Defendant submitted that the proposed pleading was embarrassing. It was submitted that the Plaintiff's central (and serious) allegation (at paragraph 444) was that the termination of his employment was substantially in reprisal for his making the disclosures alleged, but that this is stated as a conclusion, unsupported by any specification of the facts and matters said to give rise to it. The Defendant submitted that the Plaintiff's position is not assisted by reference to paragraphs 367-377 of MFI1 (under the heading "Decision to Terminate the Plaintiff's Employment") which concern the alleged termination of employment, but do not articulate any links between the alleged disclosures by the Plaintiff and the alleged directive or decision not to renew his contract. The Defendant submitted that the allegation is couched in such vague and general terms that it cannot know the words or conduct alleged to constitute the directive relied on. 82 The Defendant relied upon the decision of the High Court of Australia in Byrne v Australian Airlines Limited [1995] 185 CLR 410 at 424, 459-462 in support of the argument that no reasonable cause of action was disclosed in the Plaintiff's attempt to find a civil remedy for alleged breaches of the Protected Disclosures Act 1994. 83 The Plaintiff submitted that his claim under this heading was an action on the case arising from breaches of the Protected Disclosures Act 1994. He relied upon Northern Territory v Mengel. The Plaintiff submitted that he ought not be shut out from advancing this cause of action, as there were contestable issues of law and fact which ought be determined at the trial stage. He sought, as well, to rely upon Byrne v Australian Airlines Limited at 427 in support of this claim. 84 The Plaintiff submitted that he ought not be prevented from bringing this civil claim because he had earlier brought criminal proceedings against a number of persons for alleged breaches of the Protected Disclosures Act 1994. He submitted that those prosecutions were withdrawn, with no further evidence being offered, and that the Local Court made no findings with respect to them. He submitted that no abuse of process had been established which ought prevent from bringing his civil claim under this heading. 85 The Plaintiff disputed the Defendant's submission that the pleadings were embarrassing. He contended that the proposed Amended Statement of Claim disclosed all that the Defendant required to understand the claim brought against it in this respect.

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(c) in any event, is not pleaded with sufficient clarity to enable the Defendant to meet it, so that the claim for breach of statutory duty is liable to be struck out for the same reason as the claim for action on the case based upon breaches of the Protected Disclosures Act 1994 . 88 The Defendant submitted that there are further difficulties with the manner in which this claim is pleaded. For example, the Defendant submitted that the causal link which the Plaintiff has attempted to articulate in the first two particulars to paragraph 447 fails to disclose any plausible causal nexus at all. The contention appears to be that, in some unspecified way, the complaint made by the Plaintiff on 30 May 2001 would, if properly investigated, have ascertained his employment status by resulting in either his promotion to a more senior fixed-term position, or the conversion of his contract into a continuing one. Yet, the Defendant submitted that on the Plaintiff's own case as set forth in the first particular, the complaint of 30 May 2001 did not specifically raise the question of whether the Plaintiff's position was a project of limited duration. The Defendant submitted that, having regard to paragraphs 325 to 327, the complaint seems not to have dealt with anything remotely resembling that question. Further, the Defendant submitted that one of the Plaintiff's suggested outcomes, promotion to a more senior fixed-term position, could have done nothing to protect him against the decision not to renew his contract of which he now complaints. 89 The Defendant submitted that the fourth particular to paragraph 447 disclosed no comprehensible causal link to the breaches of the Protected Disclosures Act 1994 which are alleged. It is not explained how the revelation of the unspecified "improper conduct" of Professors Layton, Birkett and Bradley there referred to could have any effect on the Plaintiff's position. 90 The Defendant submitted further that the pleadings are embarrassing because they fail to specify material facts relevant to the allegation of breaches of the Protected Disclosures Act 1994, and they fail to specify the material facts relevant to causation of loss. 91 The Plaintiff submitted that leave ought be granted to press this cause of action. He submitted that it has not been demonstrated, in accordance with the General Steel test, that the cause of action was not tenable. Insofar as there were contestable issues of law and fact, he submitted that the matter ought proceed to trial. 92 He submitted that the termination of the criminal proceedings gave rise to no issue estoppel or res judicata, and that it was not an abuse of process for him to bring civil proceedings against the background of an abandoned criminal prosecution for breaches of the Act. 93 The Plaintiff submitted that the pleadings were not embarrassing and that the Defendant was provided with a clear statement of the case brought against it in this respect. The Common Law Deceit Claim 94 The Defendant noted that the claim for deceit rests on two central allegations of fact:

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96 The Defendant submitted that there is no evident or necessary inconsistency between the two allegations of fact referred to at [94] above. It was submitted that an intention to fill the position of Executive Director-MBT in accordance with the Defendant's policy is not inconsistent (and certainly not to the point of being wilfully or knowingly misleading) with an intention not to employ the Plaintiff. 97 Secondly, and more significantly, the Defendant submitted that even if the representation relating to the position of Executive Director-MBT was false and was made with knowledge of its falsity (which was denied), it could not have given rise to any loss. It was submitted that the only reliance which the Plaintiff could conceivably have placed on the representation was to have taken it into account in applying for the position of Executive Director-MBT; yet it was not alleged that the mere fact of applying for the position caused him any actionable damage. 98 The Defendant submitted that there was a further difficulty with the pleadings. The representation relating to the position of Executive Director-MBT was alleged to have been made from January to mid-February 2002. A further representation (alleged in paragraph 456) to the effect that no changes were planned for the MBT program pending a review, was alleged to have been made on 16 February 2002. The Defendant submitted that, whatever impression these representations conveyed in respect of the Plaintiff's prospects of ongoing employment with the Defendant, the Plaintiff must, on his own case, have been disabused of it immediately thereafter. The Defendant submitted that, by 21 February 2002, the Plaintiff had been notified that his contract would not be renewed (paragraph 151), and on 27 February 2002, he was directed to take his annual leave prior to 31 March 2002 and was told that his last day in the workplace would be 1 March 2002 (paragraph 170). 99 The Plaintiff submitted that leave ought not be refused to bring a cause of action in common law deceit. He submitted that there were debatable and contestable issues at a hearing on the merits. He disputed the Defendant's construction (at [96] above) that there was no inconsistency between the allegations of fact which formed part of the pleading of this claim. The Negligence Claim 100 The Plaintiff seeks damages for breach of a duty of care said to be owed to him by the Defendant. 101 The Defendant submitted that the Plaintiff's claim discloses no reasonable cause of action. The Defendant submitted that, on the case pleaded, the Plaintiff cannot establish that the Defendant owed him any duty to prevent the infliction of the various kinds of losses which he claims, namely (paragraph 469):

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104 The Defendant relied on Reid v Rush & Tomkins Plc [1990] 1 WLR 212 at 221, and submitted that, unless there is some special feature, the mere existence of an employment relationship does not give rise to a duty on the employer to protect an employee from the infliction of purely economic loss. The Defendant submitted that the pleadings disclose no reasonable cause of action because there is no duty of care to prevent the type of loss alleged. 105 Claimed loss (b) at [101] above concerns damage to reputation and professional standing. The Defendant submitted that no duty lies in respect of the negligent infliction of loss of this kind. It was submitted that a series of decisions has established that, where a plaintiff claims damages for injury to reputation by reason of what was communicated about him or her, the plaintiff's remedy lies in defamation, and he or she cannot sue in negligence: Sattin v Nationwide News Pty Limited (1996) 39 NSWLR 32 at 44-45; Sullivan v Moody [2001] 207 CLR 562 at 580-581 [54]; Gacic v John Fairfax Publications Pty Limited [2005] NSWSC 1210 at [42]. The Defendant submitted that the basis of the Plaintiff's claim for damage to reputation in the present case is obscure. It was submitted that paragraph 469 of the proposed Amended Statement of Claim does not specify how the damage is said to have occurred or what comprises it. The Defendant submitted, however, that to the extent it is based on anything allegedly communicated about the Plaintiff, it cannot succeed. 106 Loss (d) at [101] above is alleged to be psychiatric harm in the nature of an anxiety/depressive disorder. The Defendant submitted that a duty of care to prevent the occurrence of harm in the form of psychiatric illness would only arise if the Defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care was not taken: s.32(1) Civil Liability Act 2002. In the present case, the Defendant submitted that the relevant facts appear to be that certain complaints made by the Plaintiff were not properly investigated (paragraph 465) and that this caused the Plaintiff to suffer from an anxiety/depressive disorder (paragraph 469). The causal link between these two events is not specified in the pleading. However, the Defendant assumed for the purpose of argument, that the asserted link is that the alleged failure properly to investigate the Plaintiff's complaints was a cause of the decision not to renew his contract, which decision would not have been taken had the complaints been properly investigated, and that this decision somehow led to the Plaintiff suffering psychiatric harm. In those circumstances, the Defendant submitted that it could not have been foreseen that a person of normal fortitude would suffer a recognised psychiatric illness had reasonable care not been taken. 107 The Defendant emphasised two matters in this respect. Firstly, the "circumstances of the case" which the legislature considered relevant to the s.32(1) test were, with one exception, remote from the present case. By reference to the circumstances in s.32(2) Civil Liability Act 2002, the Defendant submitted that there were not present in this case the existence of a sudden shock, the witnessing of a person being killed, injured or put in peril or the existence of a relationship between a plaintiff and the person being killed, injured or put in peril. Only the fourth circumstance, a pre-existing relationship between the Plaintiff and the Defendant, was present in this case. The Defendant submitted, however, that the relationship of employer and employee was one which it was open to the Defendant to bring to an end, either by not renewing the Plaintiff's contract or by terminating the contract in accordance with its terms. 108 The Defendant submitted that the circumstances in which Courts have recognised a duty to prevent the infliction of purely psychiatric harm have been narrowly confined. It was submitted that, in the workplace context, the mere fact that a person was an employee, or that psychiatric harm was predictable, does not lead to a conclusion that such harm is reasonably foreseeable: Nationwide News Pty Limited v Naidu (2007) 71 NSWLR 471 at 477-478 [20]-[24]. Rather, the Defendant submitted, the Courts have emphasised the need to examine what it is that the employee has undertaken to do, and the manifestation of any warning sign that psychiatric harm might eventuate: Koehler v Cerebos (Australia) Limited [2005] 222 CLR 44 at 57-58 [35]-[36]. 109 In the present case, the Defendant submitted that the suggested proximate cause of harm (the failure to renew the Plaintiff's contract) was a possibility inherent in the very nature of the employment relationship. The Defendant submitted that the fact (which must be assumed in the Plaintiff's favour on this application) that the Plaintiff's employment would have continued had his complaints been properly investigated, failed to grapple with the circumstance that the possibility of the Plaintiff's employment being brought to an end by the Defendant at some future point would always have remained. Further, the Defendant submitted that it was not suggested in the pleading that there was any warning sign which ought to have alerted the Defendant to the risk that the failure to renew his employment would have led to the Plaintiff suffering psychiatric harm. The Defendant submitted that paragraphs 470 and 471 of MFI1 did not assist the Plaintiff on this application, with the matters contained in paragraph 470 being clearly irrelevant to the Plaintiff's situation and the allegation in paragraph 471 being vague and general without identifying any particular sign of harm. 110 Further, the Defendant submitted that the pleadings in relation to this claim are embarrassing. Firstly, because they fail to specify material facts relevant to the scope of the duty alleged. Secondly, because they fail to specify material facts relevant to the breach of the duty alleged and, thirdly, because they fail to specify material facts relevant to the damage alleged. The Defendant relied upon Yovicherich v Royal Australian and New Zealand College of Radiologists [2005] NSWSC 1208 at [33]-[37].

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167 The Plaintiff has not pleaded this claim specifically or with particularity. 168 I am satisfied that this pleading is embarrassing so that leave will not be granted to bring a claim in those terms. Further, I am satisfied that no reasonable cause of action is disclosed so that the Plaintiff ought not be granted leave to replead this claim. Action on the Case - The Breach of the Protected Disclosures Act 199 4 Claim 169 The submissions concerning this claim are summarised at [78]ff above. 170 The original Statement of Claim contained a claim for breach of the Protected Disclosures Act 1994. 171 Section 20(1) Protected Disclosures Act 1994 provides that a: "… person who takes detrimental action against another person that is substantially in reprisal for the other person making a protected disclosure is guilty of an offence." 172 Section 20(2) provides that "proceedings for an offence against this section may be instituted at any time within 2 years after the offence is alleged to have been committed". 173 The fact that the Plaintiff brought criminal proceedings which were effectively withdrawn and dismissed does not prevent a civil action being brought with respect to the same subject matter: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 634-636. There were no findings or determinations made in the Local Court. The Magistrate recorded that no further evidence was offered and dismissed the charges. I am not satisfied that the bringing of a civil claim against the background of an unsuccessful criminal prosecution constitutes an abuse of process. 174 The Protected Disclosures Act 1994 does not confer any civil right of action in respect of breaches of the Act. In Byrne v Australian Airlines Limited, Brennan CJ, Dawson and Toohey JJ said at 424: "A cause of action for damages for breach of statutory duty arises where a statute which imposes an obligation for the protection or benefit of a particular class of persons is, upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage of a kind against which the statute was designed to afford protection. The question is one of the construction of the statute, although as Dixon J pointed out in O'Connor v S P Bray Ltd (1937) 56 CLR 464 at 477-478, an examination of the statute will rarely yield a necessary implication positively giving a civil remedy." 175 I accept the Defendant's submissions, by reference to Byrne v Australian Airlines Limited, that no reasonable cause of action is available to the Plaintiff under this heading. I am not persuaded that a ground of civil liability arises by implication where a person seeks to bring civil proceedings for an alleged breach of the Protected Disclosures Act 1994. In the absence of express conferral of a private cause of action in the Act, it may arise impliedly as a matter of statutory construction: Slivak v Lurgi (Australia) Pty Limited [2001] 205 CLR 304 at 316 [28]. However, no such implication arises in this case. Nor, in my view, does the cause of action arise as an action on the case. I am not persuaded that Northern Territory v Mengel assists the Plaintiff in this respect.

McGuirk v The University of New South Wales

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