6.3.8.1 Clauses 315 and 317 and the role of the Court
175 Six things will be apparent from the summary above about the course of the hearing (as opposed to the pleading) before the primary judge.
176 First, while the appellants focused on cl 315 as the source of the relevant right of intellectual freedom, they also expressly accepted that: (a) cl 315 had to be construed in the context of cll 316 and 317, and (b) the right was subject to the limitations in cll 315 and 317. They did not accept, however, that the right was subject to the Code of Conduct or any other University policy.
177 Second, the appellants consistently maintained that it was necessary for the Court itself to determine, in the context of all of the circumstances, whether Dr Anderson's conduct amounted to an exercise of the right of intellectual freedom. In the context of the appellants' case as put this meant that the appellants were contending that the primary judge had to decide if Dr Anderson's conduct, given all of the evidence about the circumstances in which that conduct occurred including the so-called vicious media attacks on Dr Anderson, constituted an exercise of the right of intellectual freedom in accordance with all of the requirements in cll 315 and 317. In that regard, the appellants said further that the fact that Dr Anderson's conduct may have caused subjective and objective offence or that he could have exercised the right in a way that did not cause subjective or objective offence were immaterial. According to the appellants, these were not relevant criteria for determining the legal characterisation of Dr Anderson's conduct.
178 Third, the respondents' primary case was that cl 315, as construed in the context of the 2018 agreement as a whole including cll 316 and 317, did not give rise to any enforceable right of intellectual freedom. The respondents' alternative case was that if cl 315, as construed in the context of the 2018 agreement as a whole including cll 316 and 317, did give rise to any enforceable right of intellectual freedom, then that right was qualified by the limitations in cll 315 and 317, as well as the Code of Conduct and other University policies referred to in the Code of Conduct. The respondents did not accept before the primary judge that there was an enforceable right and duty of intellectual freedom capable of being contravened granted to the parties by cll 315 or 317. Their position in the appeal in this regard is different from their position before the primary judge.
179 Fourth, the assertion of the respondents to the primary judge that the appellants had suggested that it was for Dr Anderson to determine "what he can and can't do, what is or isn't a right, and the extent to which his contact might be constrained" is unfounded. The appellants never put that proposition.
180 Fifth, the respondents never objected to the appellants contending in their oral opening submissions before the primary judge that "clauses 315 to 317 confer an enforceable right on persons", or that "conduct that is authorised by clauses 315 to 317, cannot constitute misconduct … or serious misconduct", or that the relevant legal framework was set by cll 315-317. It may be inferred that the respondents did not do so because their own primary position before the primary judge was that cl 315 and/or cll 315 and 317 are not capable of being contravened as they involve no enforceable right and, in the alternative, that if there was any such right granted then cl 315 could not be considered in isolation from cl 317 and the Code of Conduct. In other words, on both of the respondents' cases, cl 317 was in play.
181 Sixth, the University is correct that the appellants never pleaded or submitted to the primary judge that the University had contravened cl 317 of the 2018 agreement by giving warnings to or terminating Dr Anderson's employment. The contention of breach of the agreements by the University, in the pleadings and submissions, was confined to cl 315 of the 2018 agreement (as well as cl 384).
182 Accordingly, before the primary judge, cl 317 was in issue on the case of the appellants and the respondents. In these circumstances, the primary judge's ultimate recourse to the pleadings to identify the matters in issue is understandable but involved error.
183 In the circumstances of the present case nothing precluded the appellants from putting to the primary judge, as they in fact did, that Dr Anderson was exercising a right of intellectual freedom granted by cl 315 and in accordance with that clause and cl 317. This is because, the appellants having asserted the conduct was the exercise of the right in accordance with cl 315, forensic logic required the respondents to raise cl 317, which they did. The appellants were then permitted to assert, in response, that the conduct complied with cl 317, which they did.
184 In any event, while it has always been recognised that pleadings perform important functions and that any relief granted must be founded on the pleadings (for example, Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 at 664), the principle that a party is bound by its pleading is not absolute. As Dare v Pulham also discloses, parties may choose to conduct a case which departs from the pleadings. If they do so, or one party does so and the other party does not object, then the parties or the party which did not object cannot later complain about the departure from the pleadings.
185 The fact that pleadings are important but do not operate as an absolute limit to the case that a party or parties may legitimately put in a hearing is reinforced by the relevant principles of appellate review. The Full Court summarised these in Linkhill Pty Ltd v Director, Office of the Fair Work Building Industry Inspectorate [2015] FCAFC 99; (2015) 240 FCR 578. Accordingly, given the requirement for the finality of litigation:
(1) the general principle is that parties are bound by the case they in fact ran below, which is not necessarily the case as pleaded below: at [30] citing Suttor v Gundowda [1950] HCA 35; (1950) 81 CLR 418 at 438; and
(2) the general principle is not absolute:
(a) it applies if "evidence could have been given [below] which by any possibility could have prevented the point from succeeding": at [30] citing Suttor v Gundowda at 438;
(b) putting it another way, "[t]he possibility of evidence or the possibility that the hearing would have taken a different course, if not fanciful, may well suffice to deny raising of the new point": Branir Pty Ltd v Owston Nominees (No 2) [2001] FCA 1833; (2001) 117 FCR 424 at [38];
(c) however, it is generally in the interests of justice for the appeal court to decide questions of law or of construction raised for the first time on appeal if there is no disputed question of fact: at [30] citing Suttor v Gundowda at 438.
186 If these principles are applied to the circumstances of the present case, the following matters become apparent:
(1) while the appellants did not plead below that the right was in cll 315 and 317, they did not need to do so. The right is in cl 315 but has to be exercised in accordance with both cll 315 and 317. The appellants accepted that cl 317 conditioned the exercise of the right in their oral and written opening submissions and the respondents did not object to them doing so. The appellants' case on appeal has not changed in this regard;
(2) even if it were the case that the appellants did not refer to cl 317 below in respect of the exercise of the right of intellectual freedom by Dr Anderson, as noted, the respondents themselves relied on cl 317 below. As will be explained, the University cannot suggest in these circumstances that the issue is the construction of cl 315 in isolation or that it is possible that it (or the other respondents) could have adduced further evidence relevant to cl 317 when they also relied on that very provision;
(3) there has been no change of case by the appellants in the appeal by their submission that the primary judge erred by not deciding, as a matter of objective fact, whether or not Dr Anderson's conduct was an exercise of the right of intellectual freedom in accordance with the agreements; and
(4) there has been no change of case by the appellants in the appeal that the primary judge erred by not finding that the University had no lawful right, power or authority to give Dr Anderson the warnings or to terminate his employment because the legitimate exercise of the right of intellectual freedom cannot be misconduct or serious misconduct.
187 The primary judge's construction of cll 315-317 also involved error. The provisions relating to intellectual freedom, cll 315-317 of the 2018 agreement (and cll 254-256 of the 2013 agreement), must be construed together. The statement of the commitment of the parties in cl 315 to protect and promote intellectual freedom is expressed as including specified "rights". Those specified rights include the right to engage in public debate (cl 315(a)). The rights include the right to express opinions about the operation of the University (cl 315(b)(ii)) and to express unpopular or controversial views, provided that in doing so they must not engage in harassment, vilification or intimidation (cl 315(b)(iv)). Clause 315 thus does involve a conferral of rights, contrary to the conclusions of the primary judge and the arguments of the University.
188 It is also the case, however, that those rights cannot be separated from the terms of cll 316 and 317. By cl 316 the parties "will" encourage and support transparency in the pursuit of intellectual freedom within its (that is, the University's) governing and administrative bodies. The intellectual freedom the subject of cl 316 is the intellectual freedom identified in cl 315. By cl 317 the parties "will" uphold the principle and practice of intellectual freedom in accordance with the highest ethical, professional and legal standards. Again, the intellectual freedom in cl 317 is the intellectual freedom in cl 315. Clauses 315-317 thus embody an integrated and inter-related scheme of enforceable mutual rights and duties, as well as aspirations. The clauses are not merely aspirational and incapable of contravention as the respondents contended below in their primary case.
189 The fact that minds may reasonably differ about what might constitute "harassment, vilification or intimidation" in cl 315(b)(iv) or upholding the "the principle and practice of intellectual freedom in accordance with the highest ethical, professional and legal standards" in c 317 does not make the provisions mere exhortations or aspirations. Nor does the fact that the scope of the commitment to intellectual freedom is not precisely defined as the specified rights are merely included within and are not exhaustive of the concept of intellectual freedom. Contrary to the University's submissions, exhaustive definition is not required to make the provisions capable of enforcement.
190 The University's suggestion that cl 315 does not authorise the exercise of the rights nominated is untenable. The concept of the exercise of the rights is inherent within the actions authorised as specified in cl 315(a)-(b)(i)-(iv). It is also inherent within the commitment to the protection and promotion of intellectual freedom in the preamble to cl 315.
191 Other provisions of the 2018 agreement, on which the respondents relied, such as cl 306 contrasted with cl 308, are of little assistance. The provisions perform different functions using different language. The commitment in cl 315 is expressed to include the specified rights.
192 Accordingly, cl 315 cannot be characterised as involving nothing more than a commitment which is exhortatory and unenforceable. The framers of the enterprise agreement identified the commitment to the protection and promotion of intellectual freedom as including the specified rights. The commitment is the embodiment of the duty and the rights are part of the right of intellectual freedom which the parties bound by the agreements are obliged to protect and promote. It is true that those rights are confined by the terms of cl 315 itself (the appellants never suggested otherwise) and by the terms of cl 317 (and, again, the appellants never suggested otherwise). But it cannot be denied that cl 315 involves the enumerated rights which, together, are part of the right of intellectual freedom.
193 The primary judge's conclusion that only cl 317 involves enforceable obligations at J [140]-[141] is not sustainable. Clause 317, by imposing duties on the persons bound by the agreement, to "uphold the principle and practice of intellectual freedom in accordance with the highest ethical, professional and legal standards" assumes that the right to practice intellectual freedom otherwise exists. That right does otherwise exist and is to be found in cl 315. Clause 315 contains both rights and duties. Just as there is a right in academic staff, for example, to "express unpopular or controversial views, provided that in doing so staff must not engage in harassment, vilification or intimidation", so also must there be a corresponding duty on the University to not prevent academic staff from exercising that right. This is because the University is also bound by the commitment to protect and promote intellectual freedom including each of the specified rights. This is the basis for the appellants' contention that if (as they allege) Dr Anderson was exercising the right in cl 315, and they are correct that he was also doing so in accordance with cl 317, then for the University to take disciplinary action against him in respect of that exercise of right, the University itself breached its duty in cl 315 to protect and promote intellectual freedom including by ensuring that academic staff are able to exercise the right of intellectual freedom. The fact that the preamble to cl 315 uses the language of "commitment" is immaterial. The commitment is the duty to protect and promote intellectual freedom including the specified rights. In the context of cll 315-317 overall, it must be concluded that cl 315 involves corresponding rights and duties capable of both exercise and breach, albeit that the exercise must also satisfy cl 317.
194 The primary judge's observation at J [134] that "there is no express statement in the 2018 Agreement that cl 384 is subject to the 'rights' identified in cl 315 as ones which the parties are committed to protecting and promoting" is based on his Honour's misconception about the role of cl 384 in the 2018 agreement (discussed below). The conclusion that the exercise of the right of intellectual freedom in accordance with cll 315-317 cannot also be misconduct or serious misconduct follows from the fact that what is specifically authorised cannot involve a wrong. This also is explained below.
195 The University's submissions to the contrary are also not persuasive. The enumerated rights in cl 315 are clearly expressed. The fact that breach of cl 315 may result in pecuniary penalties being imposed does not justify construing cl 315 as if it did no more than contain aspirational statements. The rights specified are rights capable of exercise and enforcement. The commitment to protect and promote intellectual freedom including the exercise of the specified rights must include a duty on the University, at the least, not to punish or threaten to punish a member of academic staff for exercising the right of intellectual freedom in accordance with cll 315-317. If the University punishes or threatens to punish a member of academic staff for lawfully exercising or proposing to exercise the right of intellectual freedom in accordance with cll 315-317 it cannot matter that the University has reached its view that those provisions are not satisfied in good faith and reasonably. Conduct either is or is not the lawful exercise of the right in accordance with cll 315-317; if it is, and the University takes or threatens to take disciplinary action against the member of academic staff for that conduct the University will breached the commitment, that is, the duty, in cl 315. The fact that the characterisation of conduct as being in accordance with cll 315-317 will be fact-dependent and may be difficult does not support a contrary conclusion.
196 It is now necessary to deal directly with the further submissions which the University made about the alleged changes in the appellants' case on appeal in relation to cll 315-317.
197 First, and for the reasons already given, the case put for the appellants in the appeal does not change the character of the right of intellectual freedom asserted by the appellants. The asserted right continues to be the asserted right. The appellants continue to accept (as they expressly did below) part of the alternative argument that the respondents put - that if cl 315 does include a right of intellectual freedom it is a right that is necessarily subject to the terms of cl 317. In putting that alternative argument below the respondents did not suggest to the primary judge that: (a) the appellants could not succeed because they had not pleaded that Dr Anderson had exercised intellectual freedom in accordance with the highest ethical, professional and legal standards as required by cl 317, (b) the appellants could not succeed because they had not adduced evidence that Dr Anderson had exercised intellectual freedom in accordance with the highest ethical, professional and legal standards to satisfy cl 317, or (c) the respondents had been denied the opportunity to call evidence that Dr Anderson had not exercised intellectual freedom in accordance with the highest ethical, professional and legal standards as required by cl 317. This is so despite the fact that in their primary and alternative case the respondents expressly relied on cl 317 to defeat the appellants' claims.
198 Second, given the way in which the case was run by both parties before the primary judge (as explained above), it is not the case that in order to succeed the appellants were required to plead that Dr Anderson had exercised intellectual freedom in accordance with the highest ethical, professional and legal standards. The appellants were entitled to do what they did - plead an exercise of the right in accordance with cl 315 and leave it to the University to rely on cl 317, which the University did. The appellants were also entitled also to allege (as they did), in response to the University's case, that the exercise of the rights did in fact satisfy cl 317.
199 Third, the appellants put before the primary judge the evidence on which they wished to rely to support the claim that Dr Anderson had been exercising the right of intellectual freedom in accordance with cll 315 and 317 (and the equivalent provisions of the 2013 agreement). The appellants do not suggest otherwise. This is hardly surprising given that, as discussed, both parties relied on cl 317 in the hearing before the primary judge. If the appellants' evidence is inadequate, then so be it. But the alleged inadequacy of the appellants' evidence is not a reason to accept that, on the appellants' case, cl 315 had to be construed in isolation from cl 317.
200 Fourth, it is correct that cl 317, having been raised below by both parties, required the primary judge to examine all circumstances relevant to each and every claimed exercise of the right of intellectual freedom. This was the point of the appellants having submitted that the entire context, including the so-called media attacks on Dr Anderson, were relevant to that issue. A major part of the appellants' case in the appeal is that the primary judge did not undertake that exercise but limited himself to the construction of cl 315 alone when both parties relied also on cl 317.
201 Fifth, it cannot be the case that the University (or other respondents) could and would have led other evidence about the context and manner in which Dr Anderson had purportedly exercised his right of intellectual freedom. The University's submissions that there was no evidence about these matters is wrong. The appellants had adduced the evidence on which they wished to rely to support their case that Dr Anderson's conduct satisfied cll 315 and 317 (and they said the Code of Conduct was irrelevant). The respondents, in the face of that case as put, did not suggest that they needed an adjournment to obtain other evidence. Moreover, given the respondents' alternative case was that Dr Anderson's conduct did not satisfy cl 317 or the Code of Conduct it must also be taken that the respondents had adduced all the evidence they wished to in order to support that alternative case. It is specious for the University now to submit to the contrary.
202 Sixth, it is correct and has been accepted above that the appellants did not claim that the University had breached cl 317 of the 2018 agreement. The appellants had pleaded that the University breached cl 315 (and cl 384) of the 2018 agreement, which the respondents denied. The only claim by the appellants was that, if (as they alleged) in engaging in the conduct Dr Anderson was exercising the right of intellectual freedom, by the University giving warnings to Dr Anderson and terminating his employment for that conduct, those facts alone established breach of cll 315 and 384 of the 2018 agreement. This is because the exercise of the right of intellectual freedom in accordance with cll 315 and 317 can never be misconduct at all (let alone serious misconduct). No pleading or particulars about how the University acted in breach, beyond those, was required.
203 It also necessarily follows that there was (and is) no further evidence the University could adduce relevant to the alleged breaches of cll 315 and 384(d)(iii) of the 2018 agreement. This is because the appellants are either right or wrong about this as well as all other aspects of their case. That is, the appellants are either right or wrong that:
(1) clause 315 involves an enforceable right for Dr Anderson to exercise intellectual freedom. As noted, the appellants' arguments to this effect are right;
(2) the Code of Conduct is irrelevant to the question whether Dr Anderson was, on each or any occasion, exercising that right of intellectual freedom. As will be discussed, the appellants are right about this, but even if they were wrong and the Code of Conduct is relevant, that does not mean that the appellants' case is necessarily defeated. In that event, it would remain for the primary judge to determine if Dr Anderson's impugned conduct did or did not involve an exercise of the right to intellectual freedom in accordance with cll 315 and 317 and the Code of Conduct;
(3) Dr Anderson's impugned conduct involved an exercise of the right to intellectual freedom in accordance with cll 315 and 317;
(4) if so, in terminating Dr Anderson because of the conduct (other than the lunch photo) the University, by reason of those facts alone, breached cll 315 and 384(d)(iii) and thus s 50 of the Fair Work Act;
(5) if so, should Dr Anderson be reinstated and is he entitled to compensation for the contraventions of s 50 of the Fair Work Act; and
(6) if so, should pecuniary penalties for contravention of s 50 be imposed on the University (and other respondents).
204 Seventh, and for the same reasons, it is irrelevant that the appellants did not cross-examine Professor Garton or Professor Jagose about the University's compliance or non-compliance with the standards imposed by cl 317. As discussed, the appellants' case was only that, if Dr Anderson was exercising a right of intellectual freedom in accordance with cll 315 and 317, then the same conduct could not also be misconduct or serious misconduct so the University's warnings and termination were unlawful and in breach of cll 315 and 384. The University's claims that the respondents would have had the opportunity to call additional evidence if the appellants had relied on cl 317, in these circumstances, are specious.
205 Finally, the University's submissions that the appellants in the appeal were accepting that cl 315 did not "immunise" Dr Anderson's conduct and that cl 315 did not confer a right of intellectual freedom are both incorrect. The appellants maintain that cl 315 confers a right of intellectual freedom but accept (as they did below) that the right was conferred and qualified by both cll 315 and 317. That was the essence of their case as put to the primary judge. Further, the appellants still maintain that any exercise of the right in accordance with cll 315 and 317 cannot be misconduct or serious misconduct at all.