Moone v Boston Scientific Pty Ltd [2024] NSWSC 1475 | Case summary

Consideration

There was no dispute about the applicable legal principles. In particular, Mr Fernon SC accepted that an order for summary dismissal would only be made if the high bar for such an order set out in General Steel (see [6] above) was met. That is the test which the Court has applied. Ms Moone submitted that the FASOC did disclose a cause of action against the defendants for breach of the contract.
In applying General Steel, I have borne in mind the recent observations (with which I respectfully express my agreement) of Leeming JA (Payne JA agreeing) in HNOE Limited v Angus & Julia Stone Pty Ltd [2024] NSWCA 271: [119] The passage in Barwick CJ's reasons, sitting in the original jurisdiction of the High Court, in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130; [1964] HCA 69 is familiar but also, with respect, somewhat opaque as to its application in any particular case: in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed. [120] More recently, the joint judgment in Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57] observed that "[t]he test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way." The joint judgment in Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 at [46] cautioned that the statements in General Steel should not be given "canonical force". In Shaw v State of New South Wales [2012] NSWCA 102 at [32], Barrett JA (with whom Beazley, McColl and Macfarlan JJA and McClellan CJ at CL agreed) enunciated the test thus: The question is ... whether the claims in question are so obviously untenable or groundless that there is "a high degree of certainty" that they will fail if allowed to go to trial; and whether this is one of the "clearest of cases" in which the court may accordingly intervene to prevent the claims being litigated. [121] Ultimately it is a question of judgment, but where as in the present case the viability of a claim for damages for breach of statutory duty was a pure question of law, it was open and appropriate to resolve it in the course of determining the motion to enforce the exclusive jurisdiction clause. Further, because there were no facts and the arguments relatively brief, there was no occasion for a separate question to be ordered before that could occur.
For the reasons which follow, the Court does not accept Ms Moone's submissions. Essentially that is because in this case the Court has reached a high degree of certainty that whether as currently pleaded or otherwise, any claim brought by Ms Moone against any of the defendants for breach of the contract will fail.
It is convenient to begin with the most obvious point. Mr Fernon SC submitted that the FASOC (in particular paragraphs 43 to 45) pleaded no material facts which could give Ms Moone an action in damages for breach of contract against the second to fourth defendants. The reason is that they are not parties to the contract. The Court finds for that reason that the claim against those defendants is in the language of General Steel "manifestly groundless" or "under no possibility" could Ms Moone have such an action against them, and the proceedings against those defendants should be summarily dismissed.
Summary dismissal is the appropriate remedy because there is no utility in giving Ms Moone an opportunity to replead her claim against those defendants. That is because, as I develop further below, she informed the Court that if she was given an opportunity to replead, she would nevertheless still be relying only on an action for breach of contract and the Court is satisfied that Ms Moone has no such action against the second to fourth defendants.
Turning to Ms Moone's claim against Boston, her written and oral submissions left the Court in no doubt that she genuinely believes that she has suffered a serious wrong at the hands of Boston which sounds in considerable damages for breach of contract. As she explained to me, she had arrived at the figure for the amount of her claim based upon her intention to remain in Boston's employ until her retirement. She confirmed to me that her claim was one solely in contract and she submitted that it was properly pleaded.
For various reasons (being essentially those advanced by Mr Fernon SC), the Court concludes that the FASOC does not disclose a reasonable cause of action against Boston for breach of contract sounding in damages (or, to be more precise, in the alternative sounding in damages greater than her five weeks pay in lieu) and Ms Moone has been unable to demonstrate that an opportunity to replead would produce a different outcome.
Mr Fernon SC submitted that the termination letter was a written notice of termination in accordance with clause 7 of the contract (see [10] above) and that Boston had validly exercised its right under that clause (by its indication that Ms Moone's last day of employment would be the date of the termination letter) that she not work out her five weeks' notice period and, in lieu, be paid her five weeks salary. There was, Mr Fernon SC submitted, plainly no breach of contract by Boston.
I accept Mr Fernon SC's characterisation of the termination letter when read in the context of the events leading up to it (set out in [12] to [23] above) and the terms of clause 7 of the contract. However, in reaching that conclusion I have borne in mind that Ms Moone is a non-lawyer representing herself. Given the drastic nature of summary dismissal, and the references in some of Ms Moone's material to a contention that the contract was not terminated in accordance with its terms, I have also taken into account the consequences for her case of that possibility.
To that end, I accept it could be said that the termination letter does not, in terms, provide five weeks written notice and, therefore, does not give notice of termination in accordance with clause 7. However, on that analysis (which assumes in Ms Moone's favour that the contract could only be terminated in accordance with clause 7), Ms Moone is still left without any cognizable cause of action for breach of contract that will sound in damages greater than the payment which was made to her in lieu. This is because her best case would be on all fours with the conclusion of the majority of the High Court in Sanders v Snell (1999) 196 CLR 392; [1998] HCA 64: [19] The contract of employment was terminated by the Bureau on 19 June 1992. That termination was a breach of the contract, for it brought the contract to an end then and there, without first giving the stipulated notice. This was not a case of an employer giving notice of intention to terminate the contract in two months, paying the employee in advance for those two months and saying to the employee that he or she need not attend work during that time. The payment that was made to the respondent was payment in lieu of notice in the sense of being a payment made after the contract was brought to an end and intended to be set off against, and to extinguish, the damages that ordinarily would be payable for the wrongful termination of the agreement.
I have taken this alternative analysis into account notwithstanding that, in the course of argument, Ms Moone said that she could not point to any express term of the contract which she could say had been breached.
Ms Moone did, however, contend that while not pleaded in the FASOC, if she was to be given an opportunity to replead she would rely on an allegation of breach of an implied term of the contract. That term was identified in this exchange (Tcpt, 15 November 2024, p16 (27-45): PLAINTIFF: It would be a dispute resolution process as per the Civil Dispute Resolutions Act to discuss and resolve whatever issue the employee was experiencing at the time. HIS HONOUR: Sorry, say that again. A dispute resolution process - would you mind saying that again, and I'll just take a note. A dispute resolution process‑‑ PLAINTIFF: Where the parties come together, and the - address the employee's matter. Whatever - whatever the employee has an issue with, that there's a - a - a meeting to have that resolved. HIS HONOUR: All right. And do you say that that's - that there is an implied term - there would be implied some terms into this contract that would constitute a dispute resolution process of that kind? PLAINTIFF: Absolutely, especially in an accounting and controls role, a finance role, within the company. Not just - not just a finance role. It - it needs - it needs to be part of every employment contract. It's - it's‑‑
However, in my respectful opinion, the possibility of asserting an implied term to that effect is not a proper basis to allow Ms Moone an opportunity to replead. That is because the Court accepts Mr Fernon SC's submission that an implied term to that effect would never be implied because it does not satisfy the familiar test for the implication of a term to give business efficacy in the advice of the majority of the Privy Council in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 282 - 283.
Applying that test, there are at least three reasons why the Court accepts Mr Fernon SC's submission: 1. The contract is effective without such a term; 2. Such a term contradicts clause 7 of the contract, which provides for termination without cause; and 3. It is not a term which can be clearly expressed (hence I have referred to it as a term "to the effect" of a dispute resolution process) because there is no one way in which dispute resolution clauses are expressed.
Further and alternatively to the conclusion in the preceding paragraph, the Court also accepts Mr Fernon SC's submission that if an implied term to the effect advanced by Ms Moone was part of the contract, then the course of meetings and correspondence between the parties (the critical parts of which I have set out in [12] to [23] above) demonstrate that the parties had engaged in a process which sought to address Ms Moone's concerns. In other words, even if there could be such an implied term in the contract, Boston had demonstrated by reference to those facts that a claim for breach of a term to that effect could not succeed.
Finally, in relation to the lack of utility in giving Ms Moone an opportunity to replead, two further matters must be noted.
First, when I asked Ms Moone what she would do if she was given an opportunity to replead, she affirmed that she would continue to maintain an action for breach of the contract but would reconsider the amount of damages to claim a lower figure. That is not a proper basis to allow Ms Moone to replead, because it demonstrates a fundamental inability to identify what breach of the contract could properly be pleaded that would justify a however much reduced claim for damages.
Second, in her written submissions, Ms Moone identified what she said were seven reasonable causes of action available to her. I will next set out each of these, together with Boston's response which the Court accepts: 1. "Breach of Contract: My employment was terminated without just cause". Such a cause of action must fail because clause 7 of the contract permitted termination without cause. 1. "Failure to Follow Dispute Resolution Process (DRP): The defendant violated the Civil Dispute Resolution Act by not adhering to the required Dispute Resolution Process before termination." The Civil Dispute Resolution Act 2011 (Cth) imposes an obligation to take genuine steps to resolve disputes before proceedings are instituted in the Federal Court of Australia and the Federal Circuit and Family Court of Australia (Division 2). The legislation is irrelevant both to the interpretation of the contract and the proceedings before this Court. 1. "Unauthorised Request for Private Information: The defendant demanded private information not stipulated and outside the scope of my contract, and my refusal to provide this information does not amount to a breach of my contractual obligations." Any such refusal on the part of Ms Moone was not the basis of an allegation of breach against her and, in any event, the request for private information would not in and of itself be a proper basis for a cause of action in contract against Boston. 1. "Legal violation - Breach of Privacy: The defendant unlawfully requested private and sensitive information, in breach of the Privacy Act 1988 (Cth) which was not necessary or required by my contract." There is no prohibition under that legislation against making a request for private and sensitive information. 1. "Unjust Termination: My employment was terminated without valid business reasons or my consent, causing significant financial and emotional harm. This wrongful dismissal disregarded procedural fairness and due process". This contention is no more than a restatement of the allegations in the FASOC and, in any event, could not succeed when neither "valid business reasons" nor Ms Moone's consent was required under the contract to bring her employment to an end. 1. "Neglect by Directors: The directors repeatedly ignored my 12 Notices to resolve the matter, demonstrating a clear disregard fair (sic) dealings and for good faith". Only two of the "notices" predate Ms Moone's termination on 25 February 2022. In any event, there was no obligation under the contract for the defendants to respond to the "notices", to the extent they were expressed in terms that were capable of being the subject of a response. 1. "Deprivation of Livelihood: The unjust termination has significantly impacted my ability to earn a living, as it was my primary source of income". Again, this allegation cannot stand in the face of a contract terminable without cause. So far as the reference to "unjust termination" seeks to invoke a statutory concept of "unfair dismissal", that is not a matter within the jurisdiction of this Court.

Moone v Boston Scientific Pty Ltd

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Cases Cited (12)