Plaintiff v First Defendant

PRACTICE AND PROCEDURE - Pleadings - Amendment principles - Whether it is necessary to expressly plead a statutory provision pursuant to Supreme Court (General Civil Procedure) Rules 2015 r 13.02(1)(b) - Agtrack (NT) Pty Ltd v Hatfield [2003] VSCA 6; (2003) 7 VR 63 - Abuse of process - Whether application by the plaintiff to reintroduce a claim under Fair Work Act 2009 (Cth) s 50 an abuse of process where claim disallowed at earlier interlocutory stage - Commissioner of State Revenue v Mondous (2018) 55 VR 643 - Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd [2006] VSC 170 - Racovalis v Rescom Mortgages Pty Ltd [2010] VSCA 55; (2010) 28 VR 250 - Tucker v State of Victoria [2018] VSC 389 - Civil Procedure Act 2010 ss 7, 25.

Mr P R D Gray QC (4-6 February 2019) and Mr P J Hanks QC (7 May 2019) with Ms J F Swanwick

1 The plaintiff, Mr Tucker, challenges two workplace investigations into his conduct. His employer proposes to terminate his employment. The plaintiff applies for declaratory relief together with injunctions prohibiting his employer from reaching a final decision with respect to the disciplinary outcomes flowing from the investigations.

2 The plaintiff is employed as a senior solicitor at the State Revenue Office ('SRO'). The first defendant, the State of Victoria ('the State'), is his employer. The second defendant is the Commissioner of State Revenue ('the Commissioner'). The Commissioner exercises delegated powers in respect of SRO employees.

3 One critical issue in this proceeding concerns the terms and conditions of the plaintiff's contract of employment, including whether a clause relating to workplace investigations in the applicable enterprise agreement is incorporated. Another critical issue concerns the application of the Public Administration Act 2004 ('PAA').

4 Firstly, the plaintiff's claim that the defendants breached his employment contract is rejected. I find cl 21 of the Victorian Public Service Enterprise Agreement 2016 ('VPSEA') was not incorporated into his contract of employment. Further, even if cl 21 were incorporated into the contract, there was no breach of it by the defendants.

5 Secondly, I reject the plaintiff's claim that the defendants breached s 20(3) of the PAA. Moreover, I find that ss 8 and 20(3) of the PAA do not oblige the defendants to comply with processes established under s 8. Even if they did, there was no breach of cl 21 of the VPSEA insofar as it is referred to by a process document established under s 8.

6 The plaintiff made a last minute application to amend his second further amended statement of claim ('2FASOC'). He proposed to include a claim for breach of the VPSEA as a separate cause of action by pleading contravention of s 50 of the Fair Work Act 2009 (Cth) ('FWA'). Approximately one year ago in this proceeding, McDonald J ruled that the plaintiff could not amend his pleading to include a claim for contravention of s 50 of the FWA. The current application is an abuse of process and is disallowed.

8 The plaintiff commenced employment with the first defendant in November 2011 as a solicitor at the SRO.

9 Approximately two years later, the plaintiff received a letter from the SRO dated 4 October 2013 ('the covering letter') offering employment as a Senior Solicitor in the Customer Services and Debt Management Branch of the SRO. He signed an attached document titled 'Acceptance of Employment Terms' the same day ('the acceptance document').

10 On 9 June 2017, the SRO wrote to the plaintiff advising of allegations of workplace misconduct made against him. These allegations concerned two different subject matters and led to two investigations.

11 The first investigation concerned allegations of inappropriate conduct towards another employee of the SRO, including 'inappropriate, harassing and offensive comments' and 'repeatedly requesting that [the SRO employee] accept your friendship request on Facebook' ('the First Allegations').

12 The second investigation concerned allegations of 'numerous searches of customer records on the SRO eSys database, which are not related to any known SRO business purpose' ('the Second Allegations').

13 The plaintiff was suspended with pay during the course of the investigations, and indeed, continues to be an employee of the first defendant.

14 The plaintiff's solicitors and the SRO corresponded during the investigations. During the course of this correspondence, the plaintiff's solicitors outlined various objections to the investigations.

15 On 21 June 2017, Mr David Heywood, Branch Manager, Human Resources of SRO, wrote to the plaintiff advising that Ms Lisa Klug, Associate Director, Worklogic, had been appointed as an investigator. Initially, Ms Klug was engaged to investigate both sets of allegations, however, she was subsequently only retained to investigate the First Allegations. This occurred after the plaintiff expressed concerns that if Ms Klug were to continue to conduct the investigation into the Second Allegations she would be exposed to confidential information in breach of the Taxation Administration Act 1997.

16 On 21 August 2017, Mr Joyce, Executive Director, Corporate Services, SRO wrote to the plaintiff's solicitors advising that Mr Don Di Federico, Branch Manager of Investigations in the Compliance Division of SRO, had been appointed to undertake the investigation into the Second Allegations.

17 Ms Klug completed her investigation and a report dated 12 September 2017 ('the First Report'). On 25 October 2017, Mr Joyce wrote to the plaintiff and provided a summary of Ms Klug's findings in relation to the First Allegations. Mr Joyce then proposed a disciplinary outcome consisting of a formal warning and a direction to undertake appropriate training concerning the obligations under the Victorian Public Sector Code of Conduct, the SRO Values and Behaviours, and the SRO Equal Opportunity Policy.

18 The plaintiff, after correspondence from his solicitors, eventually received the First Report but it contained redactions and, despite request, was not given an unredacted copy of it.

19 On 12 December 2017, the plaintiff filed this proceeding seeking interlocutory and permanent injunctions prohibiting the defendants from proposing a disciplinary outcome in respect of cl 21 of the VPSEA and the First and Second Allegations, or alternatively, declaratory relief that the defendants failed to afford him procedural fairness and/or failed to provide him with all relevant material before the decision-maker. The plaintiff also sought an unredacted copy of the First Report and attachments to it.

20 On 7 February 2018, Mr Joyce wrote to the plaintiff attaching Mr Di Federico's complete investigation report into the Second Allegations ('the Second Report').[1] Mr Joyce accepted the findings. The findings in the Second Report were that 24 of the 26 allegations against the plaintiff were substantiated while two were not. Mr Joyce stated that he proposed to recommend that the plaintiff's employment be terminated.

21 On 2 March 2018, the Court made consent orders. The plaintiff gave an undertaking as to damages, and the defendants gave an undertaking that, save for further order or unless otherwise agreed, they would not finalise the proposed disciplinary outcomes (set out in the letters to the plaintiff of 25 October 2017 and 7 February 2018) until the determination of this proceeding.

22 At trial, oral evidence was given by the plaintiff, Mr John Cahir (a team leader in the legal team of the Customer Services and Debt Management Branch of SRO to whom the plaintiff reports) and Mr Di Federico. Each also deposed to affidavits which became part of the admissible evidence, either wholly or in part.[2]

23 The plaintiff deposed that he did not have the information necessary to respond to the proposed disciplinary outcome.[3] Whilst this belief may be genuinely held, ultimately it relates to a legal question that is the subject of this determination, and I do not accept the plaintiff's assertion.

24 There were some differences in the recollection of facts between the plaintiff on the one hand, and Mr Cahir and Mr Di Federico on the other. However they were insignificant to the case as it unfolded, and I accept that each witness attempted to honestly recall matters during cross-examination. For instance, in respect of access to electronic data during a meeting regarding the second investigation, the plaintiff and Mr Cahir had different recollections on the length of delay before obtaining electronic access. The plaintiff said his recollection was supported by his notes and records of phone calls.[4] Ultimately, the length of delay was immaterial as the plaintiff agreed that the time was spent searching other records,[5] and it was common ground that he was given a further opportunity to view the records again and did not take it up.[6]

25 There was also some inconsistency in the affidavit evidence as between that of plaintiff on the one hand, and that of Mr Di Federico and Mr Cahir on the other.[7] It was unnecessary to resolve this because the plaintiff abandoned a number of his claims after oral evidence closed, including the claim that the defendants breached their obligations towards him by failing to provide him access to his work records, emails and other information to enable him to provide a meaningful response to the Second Allegations.[8] He also abandoned claims that he had not been provided with full particulars of the First Allegations,[9] that Mr Di Federico's appointment as investigator breached the defendants' obligations to appoint an investigator with no prior personal involvement in the matter,[10] and that by communicating directly with the plaintiff and not his lawyers, the defendants failed to ensure he had representation of his choosing during the investigation.[11]

26 Most facts concerning the issues agitated during trial were agreed. The parties helpfully provided a statement of joint statement of agreed facts.[12]

27 Moving now to the issues in dispute. During the trial, the parties provided a useful outline of issues in dispute, and then another outline after the fourth day of trial.

Is cl 21 of the VPSEA incorporated into the plaintiff's employment contract by reference?

Your conditions of employment will be in accordance with the Victorian Public Service Workplace Determination 2012 ("The Determination") or any subsequent determination (which applies of its own force and is not incorporated into this contract). This contract of employment may be terminated by either party in line with the determination.

8. Termination Clause

This contract of employment may be terminated at any time by either party in line with the Victorian Public Services Workplace Determination 2012.

29 The Victorian Public Service Workplace Determination 2012 ('VPSWD') expired on 31 December 2015 and was replaced by the VPSEA which commenced operation on 18 May 2016 pursuant to s 278 of the FWA.[13]

30 Clause 21 of the VPSEA establishes procedures for managing employee misconduct and associated disciplinary outcomes.

31 The plaintiff says that cl 21 of the VPSEA is incorporated by reference into the contract of employment. His key submissions on this issue follow.

32 Firstly, at trial, the plaintiff said that the acceptance document, but not the covering letter, contains written terms of the contract of employment.

33 Secondly, the acceptance document is contractual in nature. Its terms are not merely aspirational but create substantive rights for the plaintiff. The contract of employment would be incomplete without incorporating the VPSEA, as there is no other right to resign or dismiss conferred by the acceptance document. Clause 8 of the acceptance document is a bridging term between the written contract of employment (namely, the acceptance document) and the VPSWD (and it successor, cl 21 of the VPSEA). The bridging term only concerns termination.

34 It is only necessary to incorporate parts of the VPSEA to give effect to cl 8 of the acceptance document, namely those that deal with termination. Other matters, such as hours of work, salary, and leave, are not incorporated by reference. Another way of considering the issue is to ask what clauses in the VPSEA need to be complied with for the termination to be in line with the VSPEA. Clause 21 deals with the process of termination of employment and should be incorporated. It is unnecessary to consider whether other clauses of the VPSEA need to be incorporated.

35 Thirdly, the language used in the acceptance document - 'in line with' - is synonymous with the phrase 'in accordance with' which has been held to incorporate external source documents by reference. Moreover, 'in line with' is mandatory language and more compulsive than other phrases that have been held to incorporate external source documents by reference, such as statements that policies were 'to be observed' or 'abided by'. The term 'in line with' is repeated in both the acceptance document and the covering letter.

36 Fourthly, cl 21 of the VPSEA is capable of being a contractual term. It is in mandatory, clear and certain language that is not merely permissive or aspirational.

37 Fifthly, the acceptance document does not expressly exclude the contractual force of the VPSWD. This is significant as, by contrast, SRO policies and procedures are expressly excluded from incorporation into the contract in cl 10 of the acceptance letter. The acceptance document may also be compared with the covering letter which contains an express exclusion. The usual conclusion in circumstances where the content of an external source document (such as the VPSWD) is outside the control of the parties, and a bridging term does not expressly address the issue, is that the contractual entitlements alter with the contents of the external source document.

38 Sixthly, even if the covering letter forms part of the terms and conditions of the contract of employment, it does not exclude the VPSWD from being incorporated. The plaintiff did not sign the covering letter and was never asked to consent to it.

39 In addition, any words excluding or limiting the contractual incorporation of the policy should be construed strictly and for the benefit of the party who gains from its exclusion or limitation. Accordingly, the words 'which applies of its own force and is not incorporated into the contract' should be construed only in reference to the words 'a subsequent determination'. The VPSEA is not a determination, and hence the former words have no application.

40 On the other hand, the plaintiff says that the VPSEA is incorporated by reference because the parties knew that industrial instruments are replaced periodically and would not have intended to set the employment conditions in stone. Moreover, this is explicitly contemplated by the reference to 'any subsequent determination' in the covering letter.

41 The defendants say that cl 21 of the VPSEA is not incorporated by reference into the contract of employment. Their key submissions on this issue follow.

42 Firstly, the written terms of the contract of employment include both the covering letter and acceptance document. Both parties pleaded this. It was in the agreed facts. The plaintiff has now changed his position.

43 The exercise of construing the contract is a search for the objective intentions of the parties and is to be taken in context. The covering letter is an important element of that. It and the acceptance document constitute an offer and acceptance.

44 Secondly, the VPSWD is expressly excluded from incorporation in the contract of employment in the covering letter. It explicitly states that the VPSWD 'applies of its own force and is not incorporated into this contract'. These words apply to both the first and second sentence of the paragraph in the covering letter. The second sentence is: 'This contract of employment may be terminated by either party in line with the Determination.' The plaintiff's suggestion that it is of significance that the same parenthetical qualification is not stated in the second sentence, and that a distinction should be drawn, is refuted as being unduly technical and inapt for a document of this kind, being a contract of employment. The sentences are to be read together. The first qualifies the second. The second is not strictly necessary but is included because termination is an important matter.

45 Further, the suggestion by the plaintiff that the words in the first sentence, namely 'which applies of its own force and is not incorporated into this contract', should be read so as to limit them to the VPSWD is inconsistent with both parties' wider reading of the VPSWD in both the second sentence, and cl 8 of the acceptance document, to include successor industrial instruments.

46 Thirdly, and following directly the point above, the VPSWD applies of its own force and is not incorporated into the contract. The intention of the parties was that the statutory framework relating to the instrument will apply through workplace legislation - not incorporation. The intention was that conditions of employment be in accordance with the industrial instrument (the VPSWD or any subsequent determination) and the applicable industrial law regime governing it. This includes conditions leading to termination of employment. That is the mechanism by which the contract is brought to an end. There is no 'gap' in the contract regarding termination as the industrial instrument and industrial law regime apply. Given that, it is unnecessary that the contract itself incorporate terms regarding termination.

47 There is no automatic incorporation of industrial instruments into a contract of employment;[14] it instead turns on the circumstances of the case and the terms of the contract. The parties must clearly express an intention to incorporate a term. Moreover, certain language, such as that terms 'are as prescribed' in an industrial instrument, or other mere references to an industrial instrument in a contract, have been held to be insufficient to create contractual rights. Accordingly, the colloquial term 'in line with' is insufficient to create contractual rights.

48 Fourthly, cl 8 of the acceptance document and the covering letter should be read together.

49 The VPSEA applies to the plaintiff's employment with the State. It is a successor instrument to the VPSWD. So much is not in dispute between the parties.

50 Whether cl 21 of the VPSEA is incorporated by reference into the contract of employment raises the preliminary issue of whether the covering letter contains written terms of the contract of employment.

51 Prior to trial it was common ground between the parties that both the covering letter and acceptance document were part of the contract of employment. This is evident from their pleadings and the agreed facts.[15] That really should be the end of the matter. Parties are bound by their pleadings.

52 Campbell J in Canon Finance Australia Limited v Reliance Medical Practice Pty Ltd (No 3) ('Canon') stated:[16]

The law on this topic is quite clear. The remedies sought by a party and the basis on which those remedies are sought must be found in the pleadings. It is sufficient to refer to Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70 (at 664) in that regard, although doubtless references to authority could be greatly multiplied. A party is bound by its pleadings unless the parties have permitted the evidence at trial to run beyond the confines of the pleadings, so that they have both or all chosen to fight the case on a ground different from the ground identified by the pleadings. Even when that occurs, it is necessary that the pleadings should be amended so that they accord with the case actually fought between or amongst the active parties to the litigation: _Leotta v Public Transport Commission of N_SW (1976) 50 ALJR 666 at 668.

53 Barwick CJ in Leotta v Public Transport Commission (NSW) stated_:_[17]

It is, of course, proper to allow a plaintiff to amend pleadings during the course of a trial provided the interest of the defendant can be adequately safeguarded by adjournment and otherwise. That is one thing and a matter of common enough experience. But, to my mind, it is quite another and a very different thing to allow the plaintiff, after the evidence is closed, evidence which has been taken with a view to the cause of action set up in the pleadings, to then formulate a new claim which has not been the subject of examination in the evidence.

54 Harper J in Downer Connect Pty Limited v McConnell Dowell Constructors (Aust) Pty Ltd stated:[18]

Litigation is sometimes conducted to judgment with barely a glance at the pleadings. It remains generally true that good pleadings are an important, and often crucial, element in the civil justice system. When well-drawn, as they always should be, they form the touchstone by which the issues are identified and the relevance of the evidence assessed.

Consistently with this, one of their primary purposes is to reveal to the opposite party how the party pleading puts its case. On reading a well-drawn statement of claim, the defendant to whom it is directed will be able to say: "These are the material facts that will be the subject of the plaintiff's evidence. They tell a coherent, comprehensible story; and, to the extent that any additional evidence is to be called that might cause me to be taken by surprise, here is that evidence outlined in the particulars."

A complaint that the pleadings do not achieve this end is often met with the response that the opposite party knows very well, from documents and perhaps other sources, what the case against it is. This is no answer at all, at least unless the relevant documents are properly incorporated into the pleading. It is, as a general proposition, true to say that each pleading should be sufficient in itself. And although an element in an adversarial process, pleadings are themselves intended to be the opposite of adversarial, at least to the extent that they must, if they are to perform one of their proper functions, inform the opposite party of the case that party will have to meet at trial.

55 The plaintiff's change of position at trial is contrary to his pleadings and impermissible. He now says that the covering letter was not part of his contract of employment. For completeness I will now address it.

56 I find the written terms of the contract of employment are contained in both the covering letter and the acceptance document for the following reasons.

57 In Toll FGCT Pty Ltd v Alphapharm Pty Ltd the High Court said:[19]

This Court ... has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References as to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That normally requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.

58 Turning first to the language of the covering letter and acceptance document.

59 The covering letter says 'This contract of employment...' and asks that the plaintiff retain a copy of the covering letter for his records. It also refers to the 'enclosed Acceptance of Employment Terms'. Clearly the covering letter and the acceptance document are to be read together.

60 The subject of the covering letter is 'offer of employment - ongoing contract' and the acceptance document is titled 'Acceptance of Employment Terms'.

61 There is a signature clause in the acceptance document. It provides for the plaintiff to 'accept the offer of Ongoing Employment and agree to abide by the employment terms outlined'. Clause 2 of the acceptance document refers to Ongoing Employment and states 'full time from: 4 October 2013'. The signature clause is consistent with both the covering letter - with its subject 'Offer of Employment - Ongoing Contract' - and the acceptance document.

62 A reasonable person in the position of the plaintiff would understand that the covering letter and acceptance document constitute an offer and acceptance of ongoing employment. The documents are to be read together and contain written terms of the contract of employment.

63 Given the above, I reject the plaintiff's submission that he did not agree to the terms in the covering letter because he only signed the acceptance document.

64 I also reject the plaintiff's submission that it is significant that cl 8 of the acceptance document does not expressly exclude incorporation of the VPSWD, whereas cl 10 does expressly exclude incorporation of policies and procedures. Clause 8 is to be read with the covering letter, and that expressly excludes the VPSWD.

65 For convenience, I will refer below to the covering letter and acceptance document together as 'the employment contract'.

66 Now turning to the main issue of whether the VPSEA is incorporated into the employment contract by reference.

67 The issue of whether an industrial instrument is incorporated into a particular contract of employment arises regularly. The parties referred to a number of authorities in support of their contentions. Neither of them identified any authority precisely on point. In particular, the cases identified did not concern contracts of employment which expressly stated that the industrial agreement was not incorporated. For instance, the plaintiff relied on Gramotnev v Queensland University of Technology ('Gramotnev').[20] In contrast with the facts here, the letter of offer in Gramotnev stated 'Your terms and conditions of employment are as contained in the relevant industrial awards'.[21]

68 I reject the plaintiff's submission that the words 'which applies of its own force and is not incorporated into the contract' should be construed only in reference to the words 'a subsequent determination'. Those words must be read in the context of the type of contract this is, namely an employment one. They should not be read in an overly technical or limited manner. A reasonable person would understand them to mean what they say, which is that the VPSWD is not incorporated.

69 It is common ground between the parties that 'a subsequent determination' includes a reference to the subsequent industrial instrument, being the VPSEA, as the phrase should not be read literally. Having adopted that interpretation, it is logical to apply it to the whole of the sentence, not just part of it. As the defendants submit, the plaintiff cannot have it both ways.

70 I reject the plaintiff's submission that the contract is incomplete without incorporation of cl 21 because there is no way to dismiss an employee or terminate the contract. The contract was made in the context of industrial legislation which provides for an industrial instrument. There is a separate mechanism for termination of the contract in the industrial instrument applicable to the plaintiff's employment.

71 Further, even accepting the plaintiff's contention that the 'termination clause' of the VPSEA is to be incorporated, cl 21 is not actually the termination clause. The termination clause is cl 16 of the VPSEA. Clause 21 is aptly titled 'Management of Misconduct'. The purposes stated in cl 21.1 do not refer to termination of employment. Rather, they are concerned with management of misconduct, including: a) establishing procedures for managing the misconduct or alleged misconduct of an employee; and b) providing for an employee's alleged misconduct to be investigated and addressed expeditiously and with minimal disruption to the workplace. There is only a passing reference to termination of employment as a potential outcome of the disciplinary process: see cl 21.12(b).

72 On the other hand, cl 16 is titled 'Termination of Employment'. It sets out, consistently with the plaintiff's contract of employment, how either party may terminate the contract of employment. It addresses, amongst other things, the notice period each party is required to give to terminate the employment. This includes, in the case of dismissal for serious misconduct, no notice: see cl 16.2(e).

73 I reject the plaintiff's submission that the words in his contract expressly stating the industrial instrument is not incorporated should be limited. I reject his submission that paramountcy should be given to cl 8 of the acceptance document. It refers to termination of employment being 'in line with' the VPSWD. Such submissions are inconsistent with the express words in the employment contract saying that the VPSWD is not incorporated. A similar analysis applies to the words in the covering letter that say the plaintiff's employment is 'in accordance with' the VPSWD.

74 A reasonable person in the position of the plaintiff would, on reading the employment contract, conclude that the VPSWD was not incorporated into the contract.

75 Turning away now from the plaintiff's contractual claim, and moving to consideration of his claim under the PAA.

Does the obligation imposed on a public service body Head by s 8 of the PAA extend beyond an obligation to establish processes that meet the description in that section and impose an obligation that the processes so established must be complied with in respect of a particular employee?

8 Public sector employment principles

Public sector body Heads must establish employment processes that will ensure that -

...

(b) public sector employees are treated fairly and reasonably

77 SRO employment policies relevant to the above obligation are set out in the SRO's Managing Misconduct Policy ('Misconduct Policy').

VPS Enterprise Agreement

Clause 21 of the VPS Enterprise Agreement sets out the procedures for managing misconduct or alleged misconduct.

(1) A public service body Head, on behalf of the Crown, has all the rights, powers, authorities and duties of an employer in respect of the public service body and employees in it.

(3) A public service body Head, in exercising a right, power, authority or duty referred to in this section, must do so in conformity with -

...

(c) the public sector employment principles;

...

80 The plaintiff says that read together ss 8(b) and 20(3)(c) of the PAA require the public service body Head to exercise power and authority consistently with the public sector employment principles and this obliges the defendants to comply with the Misconduct Policy. His submissions follow.

81 First, s 8(b) of the PAA requires employers to not only establish employment processes that are fair and reasonable, but also adhere to those processes. This is evident from the mandatory language used: 'Public sector body Heads must establish employment processes that will ensure...'.[22] The words 'that will ensure' have work to do.

82 Section 8 contrasts with other sections of the PAA such as s 7, which concerns public sector values and uses aspirational language.[23] In contradistinction to s 8, s 7(4) specifically excludes civil causes of action under s 7(1) and expresses not to create any legal rights.

83 Second, s 8(b) of the PAA imposes an obligation to comply with cl 21 of the VPSEA. This is because a policy established by the Commissioner pursuant to s 8(b) refers to cl 21 of the VPSEA. Specifically, as discussed above, the Misconduct Policy refers to cl 21 of the VPSEA. Accordingly, a breach of cl 21 of the VPSEA is a breach of the Misconduct Policy and of s 8(b) of the PAA.

84 The plaintiff refers to correspondence to him from the SRO. It indicates that he was required to comply with the Misconduct Policy (and therefore cl 21 of the VPSEA to which it refers). He says that fairness requires the defendants also comply.

85 The defendants say the obligation relevant to the proceeding arises from the interaction of s 8 with s 20(3)(c) of the PAA. Section 20(3)(c) gives rise to a requirement that the second defendant, as delegate of the relevant public service body Head, exercise the rights, powers, authorities and duties of an employer in respect of the employment of the plaintiff and in accordance with the public sector employment principles in the sub-paragraphs of s 8. This includes the principle that public sector employees are treated fairly and reasonably. There is an obligation to conduct any disciplinary process in conformity with that principle and the obligation has been satisfied.

86 The defendants agree that the Misconduct Policy is a policy established pursuant to s 8 of the PAA. They also agree the policy requires that disciplinary processes be conducted in accordance with cl 21 of the VPSEA.

87 However, they say concepts of fairness and reasonableness in s 8 of the PAA should not be confined to the precise prescriptions of cl 21 of the VPSEA, but understood as a broader and more flexible concept to treat the plaintiff fairly and reasonably.[24]

88 The defendants reject the plaintiff's assertion that the PAA gives rise to a statutory duty requiring them to adhere to cl 21 of the VPSEA for the following reasons.

89 Whilst s 8 requires the establishment of processes to ensure the objectives identified in the sub-paragraphs of s 8, it does not extend to an obligation requiring the public sector body Head to adhere to the processes established under s 8. There is a clear difference between an obligation to establish a process which meets a particular description, and an obligation to adhere to the process so established.

90 Although the heading of s 8 is 'public sector employment principles', the principles are confined to the objectives in the sub-paragraphs of s 8, not the establishment of the processes themselves. This is consistent with the definition of 'public sector principles' in s 4 of the PAA. It refers to 'principles' in plural. There are six objectives listed in the sub-paragraphs of s 8. They are the principles rather than the singular objective of establishing the employment processes.

91 The plaintiff's construction would require the Court to read additional words into s 8(b) in circumstances where the ordinary and natural meaning of the provision is unambiguous. It would be contrary to well-established principles of statutory construction. The duty in s 8 is only to establish processes (that answer the description in the sub-paragraphs of s 8), not to discharge or ensure those processes. The alternative would require reading into the words 'that will ensure' a direct obligation to comply with the processes so established.

92 Here, s 8 has no application as the plaintiff makes no complaint about the actual processes established pursuant to the obligation in s 8.

93 Moreover, the plaintiff's pleadings do not allege that a breach of cl 21 of the VPSEA would be a breach of s 8 and this line of argument was only expounded at trial.

94 Does the obligation imposed on a public sector body Head by s 8 extend beyond an obligation to establish processes that meet the description in that section, and impose an obligation that the processes so established must be complied with in respect of an employee? The answer is no for the following reasons.

95 The process of statutory interpretation begins with the text of the statute, as this is the surest guide to legislative intention. The meaning of the text may require contextual considerations, including the general purpose and policy of a provision, in particular the mischief it seeks to remedy.[25]

96 Ordinarily, but not always, words are given their natural and ordinary meaning:

the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[26]

97 A construction that promotes the object or purpose underlying an Act is preferable to one that does not.[27] Headings to sections within an Act form part of that Act.[28]

8 Public sector employment principles

Public sector body Heads must establish employment processes that will ensure that -

(a) employment decisions are based on merit; and

(b) public sector employees are treated fairly and reasonably; and

(c) equal employment opportunity is provided; and

(ca) public sector employees are treated fairly and reasonably; and

(d) public sector employees have a reasonable avenue of redress against unfair or unreasonable treatment; and

(e) in the case of public service bodies, the development of a career public service is fostered.

99 It is evident from s 8 that the obligations are placed on public sector body Heads, not public service body Heads. However, a public sector body Head in the public service means a public service body Head. The definitions of each are contained in s 4 of the PAA.

"public sector body Head" means -

(a) in relation to a public service body, the public service body Head;

(b) in relation to a public entity, the public entity Head;

(c) in relation to a special body, the special body Head;

"public service body Head" means -

(a) in relation to a Department - the Head of that Department; or

(b) in relation to an Administrative Office - the Head of that Administrative Office; or

(c) in relation to the State Services Authority - the chief executive officer of that Authority;

100 Strictly then, the question of whether s 8 imposes obligations on public service body Heads must be answered no. The obligations are on public sector body Heads. However, further analysis is required because public sector body Heads include public service body Heads and, as discussed further below, there is an intersection with s 20(3) which places obligations on public service body Heads.

101 Section 8 of the PAA requires public sector body Heads 'establish employment processes that will ensure' the principles in sub-paragraphs (a)-(e).

102 Reading s 8 in the context of the PAA, it clearly serves at least two purposes. The first is definitional. Section 4 of the PAA says that 'public sector employment principles' are defined in s 8. Consistently with that, s 8 then sets out a number of principles in sub-paragraphs. The title of s 8 is 'public sector employment principles'.

103 Pausing there, I accept the submission of the defendants that the employment principles are defined in the sub-paragraphs to s 8 rather than the whole of s 8. Both the definition of 'public sector principles' and the heading to s 8 refer to 'principles' rather than the singular 'principle'. This is consistent with the Explanatory Memorandum which states:

Clause 8 requires public sector body Heads to establish employment processes that comply with the public sector employment principles stated in that clause.[29]

104 The second purpose, evident from the text of s 8, is to oblige public sector body Heads to establish processes that ensure the public sector employment principles.

105 Is there a third purpose of s 8, namely to impose an obligation on public sector body Heads to comply with the processes established under it?[30] No, however if the public sector body Head does not comply with the processes so established, the question may arise as to whether the processes have been properly established in accordance with s 8. I will outline the reasons why.

106 Pursuant to s 8, the public sector body Head must 'establish' the employment processes and 'ensure' that those 'processes' meet the outcomes set out in the sub-paragraphs to s 8. The relevant Macquarie Dictionary[31] definitions of those terms follow.

'Ensure' means 'to make sure or certain to come, occur, etc.: measures to ensure the success of an undertaking'.

'Process' means 'a systematic series of actions directed to some end'.

'Establish' means 'to set up on a firm or permanent basis'.

107 The above definitions suggest that to establish employment processes to ensure particular outcomes means more than to simply bring into existence policies and documentation on such processes.

108 Processes are systematic actions towards a defined end. This is distinct from the documentation of such processes in a policy or procedure. In that sense, while procedural documentation may assist in ensuring the principles are upheld, the obligation under s 8 is directed to processes, and so is ultimately concerned with what is actually occurring in practice. This distinction is supported by the word ensure, meaning to make certain to occur.

109 To establish the employment principles imports a notion of permanency, or at least of a firm basis. This suggests the obligation is ongoing, which may require implementation, monitoring, evaluation and enforcement of employment processes.

110 Employment processes which ensure the employment principles, make realisation of the principles sure or certain to occur. This essentially requires the processes be effective in achieving the employment principles. For processes to be effective they must be implemented and applied in the workplace. This understanding is congruent with the wider context of the PAA, including ss 1(a), 3, 7, 38, 40(1)(c)-(d), 63(1)(c), 64 and 65.

111 Section 1(a) provides the PAA's purpose includes to 'provide a framework for good governance'. Section 3 lists the objects of the PAA, including:

(c) to establish values and principles to guide conduct and performance within the public sector;

(d) to ensure that employment decisions in the public sector are based on merit;

(e) to promote the highest standards of governance in the public sector;

(f) to promote the highest standards of integrity and conduct for persons employed within the public sector;

112 Employment processes that are uncertain or not complied with are antithetical to the PAA's objects of high standards of integrity and governance in the establishment of the public sector values and employment principles.

113 Section 7 (found together with s 8 in pt 2 'Public Sector Values and Employment Principles' of the PAA) supports the construction of s 8 as imposing an actionable obligation. The heading to s 7 is 'Public sector values' and s 7(1) sets out the public sector values in mandatory language using the word 'should'.[32] However, as the plaintiff submits, s 7(4) explicitly provides that s 7(1) does not create a legal right or give rise to a civil cause of action, nor affect the rights or liabilities of public officials or public sector bodies.[33] The absence of an equivalent to s 7(4) in s 8 is supportive of its construction as a mandatory and actionable obligation.

114 Turning to the relevant provisions on the Victorian Public Sector Commission ('the Commission'). These provide for the Commission to actively monitor and review, on an ongoing basis, compliance with public sector values and employment principles. For example, one of the Commission's objectives in s 38 of the PAA is to maintain public sector integrity. To give effect to the objectives, subparas (c) and (d) of s 40(1) provide for the Commission to monitor and report on compliance with public sector values and employment principles, and to review employment related actions. Section 63(1) empowers the Commission to make recommendations to vary processes in order to comply with those values and principles. Employees have a right to review for action taken in relation to their employment, and recommendations may be made by the party conducting the review.[34]

115 The above textual analysis and statutory context, including the Commission's oversight and advisory role, support the construction of s 8 as requiring public sector body Heads implement ongoing and effective processes to make certain the realisation of the employment principles.

116 However, s 8 does not expressly oblige public sector body Heads to comply with the employment processes established under it in respect of particular employees. There are no words that impose such an obligation, nor is the literal meaning of s 8 irrational.[35] Nevertheless, if a public sector body Head does not comply with a process they have established pursuant to s 8, the question arises whether that process was properly established to ensure the employment principles.[36] Accordingly, a breach of s 8 would derive from a failure to establish such processes.

117 Turning now to s 20(3) of the PAA. Section 20(3) is consistent with the interpretation that s 8 requires processes be properly established. It imposes an obligation on public service body Heads to act 'in conformity with' the public sector employment principles enumerated in s 8. The obligations in ss 8 and 20(3) are complementary rather than equivalent. I adopt the reasoning of Bromberg J in Quinn v Overland ('Quinn'):

[The employee] also contended that the requirement upon the [employer] to observe [the policy] is a requirement imposed by s 20(3)(c). That contention operates on the basis that an employment process established under s 8 is a public sector employment principle within the meaning of s 20(3)(c). The potential difficulty with that contention is that s 4 defines public sector employment principles as "the principles set out in s 8" and not the processes established pursuant to s 8.[37]

118 In conclusion, I reject the plaintiff's submission that ss 8(b) and 20(3)(c) read together require the defendants to comply with the Misconduct Policy, established under s 8(b). As discussed above, s 8(b) imposes no such requirement, although a failure to comply may suggest a process has not been properly established. There was no such allegation made in the plaintiff's pleadings - he did not plead a stand-alone breach of s 8 or seek any consequential relief. As discussed by Bromberg J above, the words of s 20(3) do not support a construction that creates an obligation to comply with a policy established pursuant to s 8.

119 For clarity, the question of whether or not there is an independent breach of s 20(3) of the PAA is a separate one. Again, in the words of Bromberg J in Quinn:

If s 20(3)(c) is identifying each of sub paragraphs (a)-(e) of s 8 as the public sector employment principles, then independently of any requirement under s 8, s 20(3) would require the [employer's] power in respect of [the employee] to be exercised in conformity with each of those subparagraphs, including para (b) which requires that an employee be treated fairly and reasonably in the light of the other requirements imposed by s 20(3). I accept that the existence of such a duty is seriously arguable.[38]

120 Here, it is common ground between the parties that s 20(3) does impose an independent obligation to comply with the employment principles in s 8. The application of s 20(3) will now be discussed.

Is a breach of cl 21 of the VPSEA a breach of s 20(3) of the PAA?

121 The plaintiff says that the Misconduct Policy established under s 8 provides that the disciplinary processes must be conducted in accordance with VPSEA cl 21.[39] He alleges[40] that the defendants breached s 20(3)(c) of the PAA by failing to ensure that he is treated fairly and reasonably, per s 8(b), arising from a failure to comply with cl 21 of the VPSEA.

122 I reject the plaintiff's submission that a breach of the Misconduct Policy established under s 8 of the PAA is a breach of s 20(3)(c). I do so for the reasons referred to by Bromberg J in Quinn above. Section 20(3) is directed to the public sector employment principles, not particular processes established to ensure those principles. It does not follow that a breach of the Misconduct Policy or cl 21 of the VPSEA is a breach of s 20(3).

123 The question in respect of s 20(3)(c) is whether or not the public sector employment principles have been breached by the public service body Head.

124 By para 3(a) of the 2FASOC, the plaintiff alleged that the second defendant exercises powers in respect of the plaintiff's employment as a public service body Head. The defendants admitted that the second defendant exercised such powers (by way of a delegation from the relevant Departmental Secretary), but deny the second defendant is the public service body Head.[41] This was not in issue at the trial because the defendants say it will be either of them that exercise the power.[42]

125 Accordingly, the parties agree that s 20(3) requires the second defendant to exercise all the rights, powers, authorities and duties of an employer in respect of the employment of the plaintiff, and to do so in conformity with the public sector employment principles in s 8 of the PAA, including the principle that public sector employees are treated fairly and reasonably.[43]

126 Turning now to the substantive issues and whether s 20(3) was breached. I will also consider whether or not cl 21 of the VPSEA, as incorporated into the Misconduct Policy, was breached in the event the analysis above is incorrect.

Did the failure to provide an unredacted copy of the First Report and/or its annexures breach s 20(3) of the PAA or cl 21 of the VPSEA?

127 I now address the plaintiff's allegations that s 20(3) of the PAA and/or cl 21 of the VPSEA were breached because the plaintiff was not provided with an unredacted copy of the First Report and/or its annexures.

129 Firstly, he should be given an opportunity to deal with adverse information that is credible, relevant and significant. He was entitled to particulars of the First Allegations: the names of the persons who had made the complaints, copies of the written complaints and the time, date and place of the alleged acts. The redacted information should have been provided to him both during the investigation and by way of the First Report. He was entitled to be provided with sufficient information to allow a reasonable basis to respond to the First Report. The failure to provide an unredacted copy of it left him without key information. Therefore he could not properly respond to the allegations and findings made against him.

130 Secondly, the information ultimately redacted in the First Report was credible, relevant and significant information because the investigator relied upon it to reach her conclusions.[44] That is evident because:

(a) there is redacted information under the heading 'Analysis of Evidence' in the First Report; and

(b) the First Report includes a finding that evidence from certain witnesses is exaggerated and embellished. Without context, it is not apparent why.

131 Thirdly, cl 21 of the VPSEA contains two exceptions to confidentiality, neither of which are applicable here:

(a) action taken by the employer is 'subject to applicable Victorian and federal legislation';[45] and

(b) '[r]elevant information will only be withheld where it is necessary to withhold that information in order to protect the personal privacy of any other person, consistent with Federal or State legislation'.[46]

132 Fourthly, procedural fairness is a practical remedy. The loss of opportunity to respond to the redacted information is a practical matter. It is ultimately relevant because of the disciplinary outcome.

134 Firstly, the plaintiff failed to plead an allegation of breach relating to the procedural fairness requirements of cl 21.6 of the VPSEA and those breaches were asserted for the first time in the plaintiff's outline of submissions. Accordingly, he should not be permitted to rely on them.

135 Secondly, each decision-maker must consider the circumstance of the case and raise any adverse conflicting evidence. The person being investigated must be given a reasonable opportunity to address issues relevant to their interests. The provision of the redacted First Report does not contravene those principles.

136 The plaintiff was provided with particulars of the allegations giving rise to the First Allegations on 9 June 2017, and further particulars were provided to him on 7 July 2017 and 25 August 2017. Collectively, these contained a detailed summary of each allegation, together with evidence that appeared to contradict the plaintiff's evidence, and to which he was given an opportunity to respond. This information was complete - it was provided to the plaintiff after all of the witness interviews were conducted.

137 Thirdly, neither the VPSEA nor the PAA required the defendants to provide the plaintiff with a copy of the First Report, let alone an unredacted copy. Rather, they were obliged to provide him with the investigator's findings, and sufficient information to allow him a reasonable basis to respond, and they did so on 25 October 2017. This distinction is highlighted in the Misconduct Policy, which requires the investigator to provide a written report to the Executive Director, People and Culture, 'setting out the investigator's findings, and summarising the evidence on which those findings are based', but only requires that the employee be informed of findings. Moreover, although not obliged to do so, they also provided the plaintiff with a copy of the First Report that was redacted to protect the privacy of interviewees.

138 Fourthly, confidentiality is not limited to some type of statutory imperative. Each decision-maker must balance confidentiality issues. Further, cl 21.11(a) of the VPSEA only requires that '[t]he Employee will be provided with sufficient information to allow them a reasonable basis to respond', and there is no obligation to provide 'full particulars'.

139 Fifthly, the plaintiff knew who the witnesses were from the names that appeared in the contradictory evidence. He responded to these allegations. The investigator said, on page 13 of the First Report, that the allegations had not broadened and the contradictory evidence had been provided. At page 12, the First Report notes that the plaintiff was able to identify and address each alleged behaviour during interviews.

140 Sixthly, the investigator concluded that she would not rely upon the redacted information. An adverse conclusion was already reached on the unredacted material.

141 Seventh, the 'Analysis of Evidence' part of the First Report is clearly deliberative, as can be inferred by the heading. The redacted information is evaluative and did not need to be provided.

142 Eighth, the case, as narrowed, relates to an allegation of breach at the disciplinary stage, not the investigative stage, as para 34(d) of the 2FASOC was not pursued.

143 Ninth, unfairness must answer the description of practical injustice. Here, the plaintiff did not lose an opportunity to advance his case. The contradictory information had been provided to him prior to the First Report. He did not try to impeach the investigator's description of the material as contradictory evidence. Nor did he attempt to subpoena material to try and impeach the First Report. The plaintiff has failed to establish that he did not have access to evidence used against him.

144 The controversy here, as narrowed during trial, is whether or not the defendants failed to afford the plaintiff procedural fairness (or breached other alleged obligations), by failing to provide him with an unredacted copy of the First Report and its annexures containing witness statements.[47]

145 There was some dispute between the parties as to the applicable principles with each party citing various authorities. It is unnecessary to traverse them all here. I discern the relevant principles as follows.

146 Firstly, a person directly affected by the decision-making process should generally be 'given the opportunity of ascertaining the relevant issues' and 'be informed of the nature and content of adverse material'.[48] That is a consequence of procedural fairness entailing a right to be heard.

147 Secondly, the opportunity to be heard does not require the decision-maker to adopt an 'open file' providing access to every piece of evidence.[49] Nor does it require all the material to be given verbatim. Sometimes it is sufficient to provide 'the gravamen or substance of the issue' to the affected person.[50] Consequently, the premise that the person affected is entitled to all information except confidential information must be rejected. As Griffiths J stated in Coutts v Close, '[u]ltimately, the fundamental issue here is whether the applicant was given a reasonable opportunity to address issues relevant to his interests'.[51]

148 Thirdly, ordinarily the adverse material to be disclosed is that which is 'credible, relevant and significant to the decision to be made'.[52]

'Credible, relevant and significant' information must therefore be understood as referring to information that cannot be dismissed from further consideration by the decisionmaker before making the decision. And the decisionmaker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made'.[53]

149 It is generally unfair not to disclose credible, relevant and significant material to the person affected because they cannot then deal with the information.[54] Further, such material can create a real risk of prejudice, even if subconscious, in the decision-maker's mind.[55]

150 'Credible, relevant and significant' information is not determined by how the decision-maker characterises the information when expressing their reasons.[56]

151 Fourthly, the obligation to disclose adverse material does not extend to disclosure of 'the decision-maker's deliberative processes or proposed conclusions'.[57]

152 Fifthly, confidentiality may provide an exception to the ordinary requirement to disclose adverse material.[58] Confidentiality may be prescribed by statute but is not limited by the authorities to statutory confidentiality.

153 Sixthly, as Gleeson CJ stated in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam ('Lam'):[59]

Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

(a) on 9 June 2017 and 7 July 2017, the plaintiff received the full allegations against him in respect of the First Allegations, that is, without redactions;[60]

(b) on 29 June 2017, the investigator sent an email to the plaintiff's lawyers attaching a document titled 'Investigations - A Guide for Participants', which stated that the investigation was confidential and also that the investigator would not provide a copy of the investigation report to recipients, and it would be up to the employer as to whether a copy is provided to participants in the investigation;[61]

(c) the plaintiff provided a written statement to the investigator dated 1 August 2017 in response to the allegations[62] and was also interviewed by the investigator;

(d) on 25 August 2017, the investigator emailed the plaintiff and his solicitor a document titled 'Contradictory evidence for comment by Toby Tucker'.[63] The document was wholly unredacted.[64] Witness names on this document were unredacted and therefore evident;

(e) on 29 August 2017, the investigator emailed the plaintiff and his solicitor a document titled 'Additional contradictory evidence for comment by Toby Tucker'.[65] The document was wholly unredacted.[66] Witness names on this document were unredacted and therefore evident;

(f) the plaintiff provided a witness statement dated 4 September 2017 in response to the documents above;[67]

(g) the plaintiff received investigations findings, in the form of Attachment 1 'Summary of the Workplace Investigation Report prepared by Lisa Klug of Worklogic Pty Ltd,' provided under cover of a letter from Mr Joyce to him dated 25 October 2017 ('the 25 Oct 17 letter');[68]

(h) on 13 November 2017, solicitors for the defendants emailed a copy of the redacted First Report[69] and attachments to the plaintiff's solicitors;

(i) there was correspondence before and after this between the solicitors concerning the plaintiff's request for an unredacted copy of the report and the refusal of the defendants to provide an unredacted copy, and other issues such as the plaintiff's requests for particulars of the allegations;

(j) the First Report is heavily redacted: the names of witnesses and much of the 'Analysis of Evidence' section are redacted. The findings are not redacted nor are the sections titled 'Issues Arising' and 'Alleged Policy Breaches'; and

(k) the plaintiff was not provided with attachments to the report containing transcripts and notes of interviews with witnesses.

155 I find that the plaintiff was given an opportunity to be heard in respect of the allegations against him because he was provided with the full allegations, and later, the contradictory evidence against him, together with the opportunity to provide written and oral responses to the allegations and the contradictory evidence.

156 The plaintiff has not established that he was denied the opportunity to respond to adverse information that was credible, relevant and significant. He did not, for instance, subpoena the investigator in order to challenge, at trial, her summary of the contradictory evidence as incomplete.

157 It was unnecessary for the investigator to provide the plaintiff with full copies of witness interviews in circumstances where he had been provided with the full allegations and the contradictory evidence. Further, it was unnecessary for the investigator to provide the plaintiff with her deliberative material.[70] As the authorities above establish, the right to be heard is in respect of adverse material.

158 In the circumstances of a workplace investigation into allegations of harassment, where the plaintiff had received the allegations and summaries of contradictory evidence (with names of persons providing that evidence), it was unnecessary for the investigator to provide copies of the witness statements and name the various witnesses in her report.

160 The plaintiff says there is a breach of s 20(3) of the PAA. As discussed above, it is common ground that s 20(3) of the PAA requires public service body Heads to exercise powers in conformity with the employment principles in s 8. Relevant to the plaintiff's allegations, those principles include that 'public sector employees are treated fairly and reasonably'. He alleges, amongst other things, that he has not been treated fairly and reasonably and therefore the defendants breached s 20(3).

161 Given that the plaintiff was provided with an opportunity to be heard, I find no breach of the principle that he be treated fairly and reasonably.

162 Further, the plaintiff has not proven any practical injustice. As discussed above, I am satisfied that he was given the opportunity to respond to the allegations and adverse material. Using Allegation 4 as an example,[71] it states:

In the period between 27 April 2017 and 20 May 2017, on approximately 2-3 occasions you made inappropriate or offensive comments in the workplace to Ms [colleague], in relation to an advertised selection process for Customer Service Officer roles, and about Mr [colleague] and Ms [colleague] including words to the effect:

• "Don't bother to apply for the customer service officer role, because [name] wouldn't want you."
• "You are more attractive than her and smarter, and [name] would feel threatened"
• "[Name] hates you as you're an attractive girl and she always get she wants [sic]."
• "[Name] is scared of [name] so he's not going to give you that role anyway, because [name] wouldn't want you."
• "That [name] will go for you , and [name] will come after you."[72]

163 It should be borne in mind that the plaintiff was given the names redacted above and therefore knew the names in the findings below.

164 The investigator found the allegation partially proven and partially not proven:

It is proven that, on two occasions, Mr Tucker said words to the effect that Ms [name] should not bother to apply for the customer service role because Ms [name] would not want Ms [name] and because [she] is more attractive than her and that comment was inappropriate and offensive.

It is not proven that Mr Tucker said to Ms [name] that [name] is scared of [name] so he is not going to give Ms [name] the role anyway.

The investigator comments, from the perspective of a layperson, that the proven behaviour is an apparent breach of policy, at the lower end of seriousness.[73]

165 Focusing on the part of the allegation that was proven, the adverse material against the plaintiff is evident from reading the two documents with contradictory evidence. The plaintiff denied that he made the alleged comments, and specifically denied the comments attributed to him by witnesses.[74] In her report, the investigator referred to his denial and the claims he made about other witnesses. She found that the plaintiff's version of events was 'not convincing because it is implausible' and 'not credible'.[75] The investigator found there was evidence corroborating the allegation.[76] The evidence is redacted in the First Report but the plaintiff had already been given summaries of the contradictory evidence against him and the opportunity to respond to it. As to the evidence against him, the investigator found that 'the various reports and reports of reports appear to have led to the various recollections all being slightly different and possibly becoming somewhat embellished and exaggerated, as the comment was discussed by many of the staff. It is clear that the available witness evidence is unreliable to some extent as a result.'[77] In conclusion, '[d]espite these flaws, the investigator finds that the weight of the evidence is that Mr Tucker did say words to the effect' alleged above.[78] Given this finding, even if the plaintiff was provided with the unredacted witness statements, or the names of witnesses, it would not affect the investigator finding his explanation to be implausible and not credible. Nor could it affect the finding that the weight of evidence was against him. This is not, for instance, a situation where there is a witness that the plaintiff says he has identified who corroborates his version of events but was not interviewed.

166 In short, the plaintiff has failed to establish that receiving the information redacted in the First Report, or the annexures to it, would make any practical difference to the outcome of the investigation or the proposed disciplinary outcome. I find there is no practical injustice to the plaintiff and no breach of s 20(3) of the PAA.

167 The plaintiff says the defendants breached cl 21.6 of the VPSEA. It provides:

21.6 Procedural fairness to apply

(a) The process for managing Employee misconduct will be consistent with the principles of procedural fairness.

(b) All parties involved in the misconduct process will commit to completing it as quickly as practicable.

(c) The Employer will:

(i) advise the Employee of the purpose of any meetings;

(ii) provide the Employee with a copy of the formal process to be followed;

(iii) provide a reasonable opportunity for the Employee to seek advice from the Union or a representative of their choice at any stage of the misconduct process; and

(iv) allow the Employee the opportunity to provide details of any mitigating circumstances.

(d) The Employer must take into account any reasonable explanation of any failure by the Employee to participate before making a decision under this clause 21.

168 The same analysis applies as above. I find there is no breach of procedural fairness and accordingly, the plaintiff has not established a breach of cl 21.6.

169 The plaintiff says the defendants breached cl 21.11(a) of the VPSEA. It provides:

21.11 Opportunity for response by Employee

(a) As soon as practicable after the investigator has made a finding that any allegation of misconduct is substantiated, the Employee will be provided with the findings of the investigator and the proposed discipline outcome. The Employee will be provided with sufficient information to allow them a reasonable basis to respond.

170 Clause 21.11 is concerned with the process after the investigator has made their findings. That is, the disciplinary process. The plaintiff was given the findings from the investigation. They were provided in the First Report in the 'Overview of Report' section. As discussed above, they were also provided as an attachment to the 25 Oct 17 letter. By way of letter dated 27 October 2017, the plaintiff's solicitors noted receipt of 'the findings' in the context of requesting the full investigation report so that the plaintiff could provide a 'meaningful response' to them.[79] I find that the plaintiff was provided with the findings, initially in both Attachment 1 and later in the First Report. The plaintiff has not established a breach of cl 21.11 in this respect.

171 The plaintiff alleges that he was not given sufficient information to allow him a reasonable basis to respond to the First Report. I reject this allegation. I find that the plaintiff was given sufficient information to respond to the First Report. As discussed above, he received the redacted First Report, and prior to receiving it he also had the full allegations and contradictory evidence. This formed sufficient information for the plaintiff to respond to the First Report.

172 For completeness, I observe that cl 21.11(a) requires that persons be given sufficient information to respond to the proposed disciplinary outcome. The employer (or their delegate), not the investigator, is the decision-maker in respect of the disciplinary outcome. It was ultimately the decision of the employer (or their delegate) as to whether to accept the investigator's findings. Here, the findings were accepted.[80]

173 There is no dispute that the first defendant gave the plaintiff notice of the proposed disciplinary outcome. It was at the lower end of disciplinary sanctions. That is, not dismissal, or even a final warning. The proposed disciplinary sanction was contained in the 25 Oct 17 letter: a formal warning and requirement the plaintiff undertake appropriate training in relation to his obligations under the VPS Code of Conduct, SRO Values and Behaviours, and the SRO Equal Opportunity Policy. This included personalised one-on-one training from an external specialist and the requirement that he complete the relevant SRO online training module.[81] Given the documents received by the plaintiff (described above), he certainly had sufficient information to respond to the proposed disciplinary warning.

174 In all the circumstances, I find that the plaintiff has not established a breach of cl 21.11, nor proven that the defendants breached their obligations relating to the First Report.

Did the failure to provide the particulars concerning the basis upon which it was said the plaintiff had no known work purpose in conducting the searches the subject of the Second Report breach s 20(3) of the PAA or cl 21 of the VPSEA?

175 I now address the plaintiff's allegations that s 20(3) of the PAA and/or cls 21.6, 21.8(a) and (b), and 21.11(a) of the VPSEA were breached because he was not provided with the particulars concerning the basis on which it was said he had no known work purpose in conducting the searches the subject of the Second Allegations.

177 Firstly, the substance of the Second Allegations is that the plaintiff used a work database for a non-work purpose. However, there are several reasonable purposes for which he may have conducted the searches. It is possible that the searches were conducted as part of a matter he was working on or other purposes, such as: in response to a request from a colleague or a taxpayer, as part of a demonstration to other employees, to assess whether there was a conflict of interest, or in error.

178 Secondly, during the period being investigated, the plaintiff's team was dealing with between 15,000-30,000 cases. It is almost impossible for a person to give, years after the event, an explanation of mundane conduct (a search), not the subject of notation at the time, which lasts for perhaps a minute. In one of the alleged cases, the search was for 10 seconds. In another, there were seven searches over 35 seconds. The search period covers 2.5 years. It was unfair for the plaintiff to basically be required to undertake a memory test.

179 Thirdly, procedural fairness requires that the defendants provide sufficient information to enable the plaintiff to respond to the allegations, and they did not. Where the allegation is that something innocuous is done for an improper purpose then the particulars of purpose become the crux of the allegation. The plaintiff does not know what the non-work purpose is supposed to be. He is left guessing. The plaintiff was not provided with particulars concerning the bases on which it was said that he had no work purpose in conducting the searches. There was no allegation that there was any private profit arising from the conduct of the plaintiff.

180 Fourthly, the plaintiff provided evidence as to why he conducted a significant number of searches for different purposes. Mr Di Federico's report notes that the plaintiff 'has not provided any evidence to support the conclusion that he did not undertake any one or more of the relevant e-Sys searches of the 26 persons/identified'. The report only addresses a small portion of the possible explanations for his conduct. There is no evidence from his manager that the purposes identified by the plaintiff are not known work purposes. No one has given evidence that they are unacceptable or not within his duties. There is no policy document identifying the searches to be undertaken for his work duties, and identifying those which may not be. Mr Di Federico was unable to identify any such document under cross-examination.

181 The defendants accordingly breached their obligations pursuant to s 20(3) of the PAA to conform with s 8(b) of the PAA and ensure that 'public sector employees are treated fairly and reasonably'. They breached their procedural fairness obligations pursuant to cl 21.6 and cl 21.11(a) of the VPSEA. The latter required that the plaintiff be provided with sufficient information to allow him a reasonable basis to respond to the allegations. They breached the obligation pursuant to cl 21.8 of the VPSEA that required the plaintiff be advised of the alleged misconduct in writing as soon as practicable after an allegation of misconduct has been made.

182 The key submissions of the defendants follow.[82]

183 Firstly, in respect of the obligation under cl 21.8 to provide the plaintiff with the alleged misconduct in writing as soon as practicable after the allegation was made, they say that he was in fact notified of the allegations as soon as practicable after the defendants became aware of them; namely on 9 June 2017, 4 July 2017, 18 July 2017 and 19 September 2017.

184 Secondly, in respect of the plaintiff's submission that he was not provided with sufficient particulars relating to the lack of work purpose: they say that on 7 December 2017, he was provided with further particulars relating to six of the alleged searches. These particulars support the allegation that he had not carried out the searches for a work-related purpose. The absence of evidence of any work purpose for the plaintiff to undertake the searches is said to be a particular. The plaintiff was provided with an opportunity to respond to these particulars.

185 Thirdly, the proposed disciplinary outcome in respect of the Second Allegations is based solely on findings in relation to six searches. The particulars given on 7 December 2017 related to five of these searches (amongst other searches) and the other search related to a colleague of the plaintiff. The plaintiff should readily have been able to identify any possible work-related purpose giving rise to the relevant search. He identified that colleague in his written statement of 6 October 2017.

186 Fourthly, the plaintiff had something to say in respect of all six customer searches that were the subject of the proven allegations that relate to the proposed disciplinary outcome. Under cross-examination, with some qualifications, he indicated that he understood the customer names being put to him in respect of the alleged searches and had given instructions for the written response of 6 October 2017. The plaintiff was not put to a 'memory test' but asked questions by reference to a matrix of names and to the dates of the searches.[83]

187 Fifthly, on 7 February 2018, the plaintiff received the Second Report which contained detailed particulars describing the bases on which it was found that he had no work purpose in carrying out the relevant searches. The plaintiff was provided with an opportunity to respond and has not done so.

188 Sixthly, the plaintiff is attempting an attack the merits of the Second Report, and that is not permissible.

189 Section 20(3) of the PAA is referred to above, as are cls 21.6 and 21.11(a) of the VPSEA.

190 The relevant principles concerning the provision of particulars in workplace investigations and disciplinary inquiries are as follows.[84]

191 Firstly, the nature and form of particulars required may be affected by the relevant statutory or regulatory context. For instance, in some contexts, a particular form of notice containing particulars is required. That is not the case here.

192 Secondly, employees are entitled to sufficient particulars to understand the precise nature of the factual allegations against them so as to enable a reasonable basis to respond. This includes the precise facts or omissions constituting the alleged misconduct.

193 Thirdly, employees are entitled to sufficient particulars to understand the precise nature of the alleged contravention that constitutes misconduct. That is, the policies, instruments, regulations or laws that the employer says the employee has breached if the factual allegations are proven.

194 Fourthly, employees are entitled to notice that, if the allegations are proven, there may be disciplinary consequences.

195 The following facts are relevant to the issues here.

196 On 9 June 2017, the SRO wrote to the plaintiff advising of the Second Allegations.[85] The Second Allegations against the plaintiff were provided to him in three tranches. In total, the allegations concern improper searches on 26 customers of SRO.

197 The first tranche of allegations concerns the records of seventeen customers and is as follows:

In the period 24 November 2016 to 23 May 2017, you made numerous searches of customer records on the SRO eSys database, which are not related to any known SRO business purpose. The customer records searched are: [itemisation by name and date follows].[86]

198 The second tranche of allegations concerns the records of four further customers and is in the same form, save that the dates are 6 January 2015 to 24 November 2016.[87]

199 The third tranche of allegations concerns the records of five further customers in the same form, save that the dates are 5 January 2015 to 25 May 2015.[88]

200 In the correspondence setting out each tranche of allegations, immediately below the allegations the following is stated.

If this allegation [or further allegation] is proven, it may also constitute:

(a) a contravention of clause 7.1(b) of the [PAA];[89]

(b) Misconduct as defined in clause 21.3(b) of the [VPSEA];

(c) a contravention of the VPS Code of Conduct, including, but not limited to clause 5.3 of the VPS Code of Conduct;

(d) a contravention of the SRO Values and Behaviours, specifically by breaching and/or being inconsistent with the value of Integrity;

(e) a breach of the SRO's Electronic Communications Policy, namely that you obtained unauthorised access to information or data on SRO's computers, specifically eSys;

(f) a breach of the Privacy and Data Protection Act 2014; and/or

(g) a breach of the SRO's Information Privacy Policy, namely that you used personal information collected by the SRO other than in accordance with the law and for the purpose for which it was collected, or for a purpose you would reasonably expect associated with its revenue collection or revenue protection functions.

Following the completion of the investigation, I will consider the investigation findings and determine whether any action, such as disciplinary outcomes, are appropriate. You should be aware that, given the seriousness of the allegations, if they are proven the disciplinary outcome may include the termination of your employment.

202 On 14 June 2017, the plaintiff's solicitors wrote to the SRO in respect of the first tranche of allegations ('the 14 June 17 letter') stating that they were 'instructed that Mr Tucker's work includes conducting searches for customers to the SRO, which is performed on a daily basis and would be constituted by potentially hundreds of searches on a daily basis.'[90] The 14 June 17 letter requested:

the date and time of the alleged unauthorised accesses;

all evidence of Mr Tucker personally undertaking the alleged searches;

a record of all other searches undertaken by Mr Tucker's PC between 24 November 2016 and 23 May 2017;

the evidence that you rely upon to allege misconduct;

an explanation of the time period and date range selected for the alleged unauthorised searches;

an explanation regarding the delay in bringing any such misconduct allegations considering the timeframe selected; and

an explanation as to what gave rise to the SRO initiating enquiries into Mr Tucker's use of customer searchers [sic].

203 The 14 June 17 letter also requested a copy of the relevant Code of Conduct and policies that were 'in place at the relevant time of each of the specific allegations'.

204 On 19 June 2017, the SRO responded by letter to the plaintiff's solicitors.[91] The letter clarified time frames for response and said the 9 June 17 letter was to provide the plaintiff with an opportunity to respond 'if he wished to at this time' although he was not obliged to do so yet. The letter stated that once an investigator was appointed, the plaintiff and his solicitor would be advised, and that cl 21.6 of the VPSEA would apply to the investigation including 'ensuring that Mr Tucker is provided with all relevant details regarding the Alleged Misconduct. Given this, it is not necessary to provide Mr Tucker with the particulars sought in your letter at this time.' The letter attached the Code of Conduct and SRO Values and Behaviours document and noted the other policy documents had already been provided to the plaintiff.

205 On 21 June 2017, the SRO informed the plaintiff that it had appointed Ms Klug as the investigator into the Second Allegations.[92]

206 On 29 June 2017, Ms Klug provided the plaintiff's solicitors with a document titled 'Investigations - A Guide for Participants' and requested they provide it to the plaintiff.[93]

207 On 12 July 2017, the plaintiff's solicitors wrote to the SRO regarding a number of issues and referred to the SRO letter stating 'that further particulars will be provided "in due course" with respect to the allegations concerning the alleged searches of customer records, for which there have been no particulars provided to date save for names and dates.'[94]

208 On 18 July 2017, the SRO wrote to the plaintiff to inform him 'of further particulars in relation to the allegation that you have engaged in misconduct in the workplace by making numerous searches of customer records on the SRO eSys database, which are not related to any known SRO business purpose, in the period of 6 January 2015 to 23 May 2017.'[95] Attached was a spreadsheet summary of the particulars for each alleged improper search of customer records. In this spreadsheet, the customer names and unique customer numbers were redacted.[96]

209 The plaintiff provided a written statement in respect of the Second Allegations on 1 August 2017[97] and was interviewed by Ms Klug on that date.[98] He denied the allegations made in the first two tranches of the Second Allegations (the third tranche had not yet been made). He also stated that he 'would have potentially undertaken hundreds of searches per day. I do not understand the basis on which it is said that any or all of the searches made are or were inappropriate, and on what basis, policy, regulation or law the SRO makes this allegation.'[99] The plaintiff stated that to 'assist the investigation, without disclosing the identities of the tax payers involved, I can categorise the names as follows ...' and went onto say that he recognised six names 'but cannot positively identify them without further particulars'. He then provided his response to the searches of the six names, and with the remaining 15 names stated that they were 'unfamiliar to me, but without further particulars, I cannot be certain'.

210 This written statement was provided to Ms Klug, the initial investigator, and was not provided to the later investigator, Mr Don Di Federico.[100] However, as discussed below, the plaintiff provided a witness statement to Mr Di Federico and it reiterated some of the points above and also provided a detailed response in respect of the allegations.

211 On 8 August 2017, the plaintiff's solicitors wrote to SRO stating that Ms Klug was not an authorised recipient of information pursuant to relevant provisions under taxation law and accordingly the plaintiff could not discuss certain matters concerning the allegations with her.[101]

212 On 21 August 2017, Mr Joyce wrote to the plaintiff's solicitor advising that SRO was prepared to accommodate his concerns although it did not accept his position that his obligations under certain laws meant he could not provide Ms Klug with an adequate response to the allegations.[102] The letter stated that an SRO employee would be appointed to undertake the investigation. In another letter of the same date, the SRO informed the plaintiff that Mr Di Federico would now undertake the investigation into the Second Allegations.[103]

213 On 15 September 2017, Mr Di Federico emailed the plaintiff with an outline and proposed timeline of his intended investigation process for the Second Allegations.[104] Mr Di Federico invited the plaintiff to attend a meeting to give oral evidence, or alternatively provide his evidence in writing. To that end, Mr Di Federico could provide him with written questions.

214 Again on 22 September 2017 Mr Di Federico emailed the plaintiff (and subsequently on 26 and 28 September 2017), noting he had not received a response to his previous email, and saying that if he did not receive a response from him by 25 September, then he would send his questions the following day.[105]

215 On 2 October 2017, Mr Di Federico emailed the plaintiff again stating that he had not received a response in relation to the above correspondence and that he would progress the investigation.[106] Attached to the email was a list of questions and a spreadsheet. Under cross-examination, the plaintiff confirmed that he had received the spreadsheet.[107] The spreadsheet contains a detailed list of searches relating to misconduct allegations. It contains a name identifier of the customer (the name was given separately to the plaintiff) together with information such as the date and time of the search, the module description searched and the length of the search. The questions posed by Mr Di Federico were as follows.

To be answered in respect of each search (including multiple searches of the same person/entity):

Did you undertake this e-Sys search on the date/time stated in the spreadsheet?

If this search was undertaken for a work purpose, what was the work purpose?

If this search was not undertaken for a work purpose, what was the purpose of the search?

To be answered in respect of each person searched:

Have you dealt with this person at any time during the course of your employment with the SRO?

If you have dealt with this person, what was the nature of your dealings with them?

If you do not know this personal [sic] personally, what is your relationship to this person?

If you have not dealt with this person during the course of your employment with the SRO, and you do not know them personally, do you know of this person?

If you know of this person, how do you know of them?

216 On 6 October 2017, the plaintiff provided a written statement responding to the Second Allegations and the questions asked by Mr Di Federico ('the witness statement').[108] The plaintiff stated his belief that 'each and every search I performed on eSys during my time at the SRO has been for a legitimate work-related purpose' and maintained that he required access to his work records to respond properly to these matters. The plaintiff stated:

In my course of my employment as a Senior Solicitor within the Debt Management Unit of the SRO, I believe I would potentially make hundreds of searches each day on the eSys Database. The reason for this is self-evident, but for the avoidance of doubt may include:

1.2.1 ascertaining debts owed of a taxpayer, their related entities, groups or other related taxpayers in the course of my usual duties;

1.2.2 responding to enquiries from a customer, SRO colleague or taxpayer, including telephone enquiries; and

1.2.3 assisting colleagues or superiors upon request. This may have included illustrating how the system works given I do not recall any formal training being provided by the SRO for this database in particular. My training in eSys was informal, for example, I recall Mr [name] and Mr John Cahir sitting beside me and talking me through it.

I cannot recall whether the eSys searches were conducted by me on any particular day, nor of any particular person or entity. Unless and without access to my work records, I cannot be expected to confirm the same.

217 In the written statement, the plaintiff also responded to specific allegations. During cross-examination, the plaintiff said that he gave the 'best possible answer I could've given at the time'.[109] His specific responses in his written statement are below in respect of six customers.

Customer B - This may be my former manager at the SRO. This may have been an example search for me or one of my colleagues. Without access to my work records, I cannot say anything further.

Customer E - I do not know this person. Without access to my work records, I cannot say anything further.

Customer G - I am fairly confident that this is a legal advisor to a person I was bankrupting on behalf of the SRO. I vaguely recall an enquiry being made by this person whilst we were discussing that matter. Without access to my work records, I cannot say anything further.

Customer Q - I believe that this may be someone I went to law school with. I recall sending emails regarding this person using my work email address in relation to a sponsorship for my volunteer work on the [name] Society. There may have been an enquiry made by this person. Without access to my work records, I cannot say anything further.

Customer V - I am fairly confident that this is a legal advisor to various liquidators who had commenced legal proceedings against the SRO. I vaguely recall an enquiry being made by this person whilst we were discussing that matter. Without access to my work records, I cannot say anything further.

Customer W - I believe I recognise this name, and if it is the person I believe, I do not know them well. I vaguely recall her making an enquiry about her property. Without access to my work records, I cannot see anything further.

218 The first part of the witness statement contains an objection to Mr Di Federico being appointed as the investigator on the ground that he had a prior personal involvement in the matter by reason of being the Branch Manager with oversight of the plaintiff's work, and because he would be a relevant witness to proceedings that the plaintiff had brought in the Fair Work Commission. There followed an exchange of correspondence between the parties regarding this issue, with the SRO confirming that Mr Di Federico would continue as investigator.[110] This dispute was initially the subject of this proceeding, but during the trial the plaintiff withdrew the allegations.[111]

219 On 13 November 2017, Mr Di Federico wrote to the plaintiff inviting him to attend the SRO on an agreed day to access work records in respect of the Second Allegations, in the presence of Mr Di Federico and Mr Cahir.[112] There was no response and on 17 November 2017, Mr Di Federico wrote again to the plaintiff providing an opportunity for him to access work records. He said that if he did not receive a response by 20 November, he would move to conclude his investigation.[113] There then followed further correspondence between the parties regarding whether or not the plaintiff's solicitor could be present at the inspection, and ultimately the SRO agreed that could occur.[114]

220 On 28 November 2017, the plaintiff's solicitors wrote to Mr Di Federico seeking, amongst other things, specific particulars of the Second Allegations.[115] They wrote that the plaintiff was 'unaware of the basis upon which the SRO alleges he has committed "misconduct", in this regard please provide specific particulars (noting clauses 21.10(c)(iv) and 21.6 of the [VPSEA]) to the allegations, which we note have not been provided to date despite repeated requests'. The particulars requested were as follows:

(a) all evidence of our client personally undertaking the alleged searches;

(b) a record of all searches undertaken by our clients PC from 5 January 2015 to 9 June 2017;

(c) the evidence the SRO relies upon to alleged misconduct;

(d) an explanation of the time period and date range selected for the alleged "unauthorised" searches;

(e) an explanation as to what gave rise to the SRO initiating enquiries into our client's use eSys database;

(f) providing the detailed explanation of which law, regulation, policy or term of our client's in employment within the VPS, governed our clients use of the "eSys database" for each of the alleged searches which spanned multiple years, including providing the specific clause, provision and text that:

(i) details what the SRO considers to be "appropriate"/"inappropriate" and "authorised"/ "unauthorised" use of the eSys database, particularly noting our client's instructions that there are no security protocols associated with the eSys database; and

(ii) details of what the SRO considers is and is not a "business purpose" for searches made by SRO staff using the eSys database.

221 On 7 December 2017, Mr Di Federico also stated that '[t]he SRO's position is that Mr Tucker has been provided with sufficient particulars to properly respond to the eSys Allegations'.[116]

222 In other correspondence on 7 December 2017, Mr Di Federico sent the plaintiff a letter containing 'independent evidence contradicting evidence given by [him] in [his] statement dated 6 October 2017' and inviting his response to it.[117] The plaintiff received that correspondence with the contradictory evidence on about the day it was sent.[118]

223 On 18 December 2017, the plaintiff and his solicitor attended a three hour meeting at the SRO with Mr Di Federico, Mr Cahir and SRO's solicitor.[119] During that time, the plaintiff was able to access certain electronic records (such as certain work emails) by requesting Mr Cahir to do so for him.[120]

224 On 22 December 2017, and again on 5 January 2018, Mr Di Federico wrote to the plaintiff's solicitors offering the plaintiff a further opportunity to attend the SRO to search its systems.[121] This offer was not taken up by the plaintiff.[122] He says that was because he needed further information to enable him to properly respond to the allegations and it was not provided.[123]

225 On 7 February 2018 ('the 7 Feb 18 letter'), Mr Joyce wrote to the plaintiff that he had received and considered Mr Di Federico's investigation report and had determined to accept his findings.[124] Mr Joyce attached the full report into the Second Allegations. Accordingly, the plaintiff received the entire unredacted Second Report.[125] Although the names of customers whose data he had searched were anonymised, the plaintiff confirmed he knew their names as he had been earlier apprised of them.[126] Mr Joyce stated that 24 of the 26 allegations were substantiated and two were not.

226 In the 7 Feb 18 letter, Mr Joyce stated that the substantiated conduct constituted serious misconduct. Mr Joyce stated that the plaintiff had provided misleading or untruthful responses in relation to six of the searches. He stated that the evidence obtained in respect of allegations concerning six customers (B, E, G, Q,V and W) either contradicted information that the plaintiff provided to Mr Di Federico or positively indicated that there was no SRO business purpose for the searches. Relying only on the findings concerning these six searches, Mr Joyce proposed to recommend (to the second defendant) that the plaintiff's employment be terminated with immediate effect.

227 After a flurry of correspondence between the parties about various issues, the plaintiff was given until 23 February 2018 to respond to the Second Report and proposed disciplinary outcome.[127]

228 There is no substantive response to the findings in the Second Report in evidence. Under cross-examination, the plaintiff confirmed there was no obstacle to him raising his concerns regarding the report.[128] The plaintiff says that he conveyed his concerns regarding the proposed disciplinary outcome to Mr Joyce.[129]

229 By this time, the plaintiff had initiated this proceeding and, as discussed above, consent orders were made on 2 March 2018 maintaining the plaintiff in employment until determination of this proceeding.

231 The plaintiff says s 20(3) of the PAA was breached by the defendants' failure to treat him fairly and reasonably. He says this is because he was not provided with particulars concerning the basis on which it was alleged he had 'no known work purpose' in conducting the searches.

232 I find that the plaintiff was provided with sufficient particulars to allow him a reasonable basis to respond to the allegations. I do not consider it was necessary for the 'non-work purpose' to be particularised. The plaintiff had a reasonable basis to respond to the allegations. They were precisely framed and included the customer name, date and time of search. The letters enclosing each tranche of the allegations precisely identified which policies and statute may be contravened if the allegations were proven. They also stated that if the allegations were proven, given their seriousness, the disciplinary outcome may include termination of employment.

233 The letters to the plaintiff enclosing the allegations refer to the specific policies (and legislation) relied upon. The investigation report, in turn referred to these to make findings of breach. For instance, the investigation report states:

SRO Electronic Communications Policy

The SRO's Electronic Communications Policy outlines the rights and responsibilities of both users and authorised representatives and to distinguish [sic] unacceptable uses of electronic communications from legitimate business uses.

Under the section 'Use of Electronic Communications', the policy states:

"Furthermore a User must not:

Obtain unauthorised access to information or data on SRO's computers, networks or electronic communications"[130]

234 The plaintiff responded to the allegations whilst maintaining his position he had not received sufficient particulars of them. In respect of the six allegations upon which the disciplinary conduct is founded, he confirmed, under cross-examination that he knew the customer names. The plaintiff provided specific explanations regarding these customers in his witness statement. He also provided general responses to the allegations, as discussed above, for instance, that he undertakes many work searches as part of his duties for a variety of reasons. The plaintiff says that there was no finding rejecting his general evidence about performance of searches for work reasons. The investigator referred to the plaintiff's general evidence[131] and found that the plaintiff had undertaken the searches for non-work purposes. The investigator considered the evidence (including that of the plaintiff) and concluded that, save for one customer, on the balance of probabilities there was no known SRO business purpose for the plaintiff to have conducted any of the alleged searches.[132]

235 Further, in addition to the plaintiff's general evidence above, the investigator considered the evidence in relation to each specific allegation, and more particularly the six allegations upon which the proposed disciplinary outcome is based. Ultimately, the investigator did not accept his explanations to specific allegations. It is not the task of this Court to inquire now into whether or not the investigator should have accepted those explanations. That would entail a merits review.

236 Further, there is no practical injustice occasioned on the plaintiff by a failure to particularise the 'non-work purpose'. Ultimately, the proposed disciplinary outcome is based upon the view expressed in the 7 Feb 18 letter that the plaintiff had provided 'misleading or untruthful responses' in respect of customers B, E, G, Q, V and W. This, in turn was based upon the findings in the investigation report. In each of those cases, the investigator weighed the plaintiff's evidence and did not accept it. In each case, the plaintiff gave a specific response to the allegations, in addition to making general remarks such as the need to access his work records to respond fully.

237 With respect to Customer B, Mr Di Federico did not accept the plaintiff's response that Customer B may be a former manager and it may have been an example search for the plaintiff or one of his colleagues. He weighed that against the evidence of Customer B and the evidence that it was not standard practice for staff records to be accessed as example searches during training.[133]

238 With respect to Customer E, Mr Di Federico did not accept the plaintiff's response that he did not know the person. He weighed that against the evidence of the plaintiff's colleagues that the plaintiff often expressed strong views in the workplace regarding his dislike for the person.[134]

239 With respect to Customer G, Mr Di Federico did not accept the plaintiff's response that he was fairly confident that 'this is a legal advisor to a person I was bankrupting on behalf of the SRO. I vaguely recall an enquiry being made by this person whilst we were discussing the matter.' He weighed that against contradictory evidence including: that of team leaders at the SRO, who said that they could not envisage any work-related purpose for accessing a legal representative's personal records; and that of the legal representative, who said that he did not know the plaintiff other than through representing clients, had never had cause to deal with the SRO regarding personal matters, and did not recall making an inquiry with the plaintiff.[135]

240 With respect to Customer Q, Mr Di Federico did not accept the plaintiff's response that 'there may have been an enquiry made by this person'. He weighed this against the evidence of Customer Q that they had not made an enquiry or spoken to the plaintiff since leaving university in 2003.[136]

241 With respect to Customer V, Mr Di Federico did not accept the plaintiff's response that he was 'fairly confident that this is a legal advisor to various liquidators who had commenced legal proceedings against the SRO' and that he vaguely recalled an enquiry being made by this person whilst discussing a matter. He weighed that against the evidence of the person who stated that he had dealt with the SRO in his capacity as a legal representative and could not envisage any work-related purpose requiring the plaintiff to access his personal SRO records, together with the SRO team leader's evidence that they could not envisage any work-related purpose regarding access of a legal representative's eSys records.[137]

242 With respect to Customer W, Mr Di Federico did not accept the plaintiff's response that he believed he recognised the name and that if it was the person he believed, he did not know them well, and vaguely recalled her making an inquiry about her property. He weighed that against the evidence of the person that the plaintiff was an acquaintance and she had not been in contact with him for 1-2 years, that she had never made an enquiry directly through the plaintiff and could not think of why he would access her personal SRO records except for social reasons.[138]

243 In short, the plaintiff has failed to establish that receiving particulars of the alleged non-work purpose would make any practical difference to the outcome of the investigation or the proposed disciplinary outcome. I find there is no practical injustice to the plaintiff.

244 I find there is no breach of s 20(3) of the PAA.

245 The plaintiff says the defendants breached cl 21.6 of the VPSEA. It is discussed above and provides for procedural fairness. The same analysis applies as above. I find there is no breach of procedural fairness and accordingly no breach of cl 21.6.

246 The plaintiff says the defendants breached cl 21.11(a) of the VPSEA. It provides that sufficient information be given to allow the person being investigated a reasonable basis to respond. The same analysis applies as above. I find there is no breach of the obligation to provide sufficient information and accordingly, the plaintiff has not established a breach of cl 21.11(a).

21.8 Advising the employee

(a) As soon as practicable after an allegation of misconduct has been made and the Employer has determined in accordance with clause 21.7(a)(i) or clause 21.7(a)(ii) that an investigation is required, the Employer will advise the Employee of the alleged misconduct in writing.

(b) The written advice will contain the allegation/s of misconduct made about the Employee. Relevant information will only be withheld where it is necessary to withhold that information in order to protect the personal privacy of any other person consistent with Federal or State legislation.

248 The plaintiff says the defendants breached cl 21.8(a) and (b) of the VPSEA in that he was not advised of the alleged misconduct in writing as soon as practicable after those allegations had been made. To clarify, there was no submission the allegations were provided late to the plaintiff in contravention of the 'as soon as practicable' requirement. Rather, this relates to the alleged failure to provide particulars concerning the basis on which it was said the plaintiff had no known work purpose in conducting the searches. Accordingly, the same analysis applies as above. I find there is no breach of the obligation to provide sufficient information and accordingly, the plaintiff has not established a breach of cl 21.8.

Did the defendants cast the onus or burden of proof with respect to determination of whether the Second Allegations were conducted for no known work purpose on the plaintiff? If so, did this breach s 20(3) of the PAA or cl 21 of the VPSEA?

249 The plaintiff submits that the defendants breached s 20(3) of the PAA by failing to treat him fairly and reasonably, and also breached cls 21.6, 21.8 and 21.11(a) of the VPSEA. Those clauses are cited above.

251 Firstly, the investigator wrongfully cast the onus of proof on the plaintiff to establish that he had a proper work purpose by framing the allegation as searches by the plaintiff for 'non-work purposes'.

252 The Second Allegations do not claim that wrongful acts were undertaken but rather that something innocuous was done for an improper purpose. In these circumstances, the SRO would need to establish the reason, rationale or the explanation for doing the act. This is not to say that the SRO would need to establish the plaintiff's state of mind. There is a distinction between establishing state of mind and establishing purpose.

253 The Second Allegations mean that if the SRO proves a fact and is ignorant of the purpose, then the plaintiff is guilty of the charges. If the SRO proves he has done the search, but he cannot remember the purpose, then he is guilty of the charges.

254 Secondly, the plaintiff provided explanations for the searches (as discussed above in his earlier submissions). Given those explanations, and that they were not rejected, and nor was there any evidence that they were not work purposes, no reasonable person could conclude there was a 'non-work purpose' for the plaintiff to conduct the searches.

256 Firstly, the investigator satisfied the onus by gathering evidence throughout the course of the investigation which demonstrated that the plaintiff had no work-related purpose in carrying out the search and by putting that evidence to the plaintiff. After reviewing that material, the investigator was satisfied there was no known work purpose for the searches.

257 Secondly, the mere fact of offering the plaintiff an opportunity to explain why, in the face of the evidence, there was in fact a work-related purpose associated with the searches does not give rise to any unfairness or reversal of the onus of proof.

258 Thirdly, it would be untenable to require an employer to establish an employee's state of mind if it wished to raise misconduct.

259 Fourthly, the plaintiff has never contended that running searches without a known business purpose does not amount to misconduct.

260 Fifthly, unfairness has to be such as to answer the description of practical injustice in Lam (referred to above). Here, it does not.

261 As a civil matter, the standard of proof is the 'balance of probabilities'. So much was not in dispute. Here, the dispute is on the onus of proof and whether it was unfairly placed upon the plaintiff by requiring him to prove that he undertook the searches for a work purpose.

262 In Evans v Chapman,[139] Walmsley AJ rejected a submission similar to the plaintiff's, holding that there was no reversal of the onus of proof:

Mr Grey was critical of the defendant for a process in which, he submitted, there had been a reversal of the onus of proof. The plaintiff had been required to show she had not done things.

I do not accept that submission. It is true the plaintiff was given several opportunities to put her side of the story after the allegations had been put to her. However, that was the process required by the [enterprise agreement] where allegations of misconduct had been made. This was not a reversal of the onus of proof. The onus remained with the defendant.

Initially it was up to the investigator to see if there was evidence, and then if there was, to formulate and make allegations. Insofar as there was an evidentiary onus, that did not make the process unfair. It was simply the part where she was given the right to be heard.[140]

263 I adopt the analysis above. Here, the plaintiff was given the right to be heard in respect of the allegations that he had undertaken the searches for a non-work purpose. This was not to shift the burden of proof. The investigator was still required to make findings as to whether or not the searches were for a non-work purpose and did so.

264 The investigator gave evidence, consistently with his investigation report, that he arrived at his findings on the balance of probabilities. On the evidence gathered in the investigation, he found, firstly, that the plaintiff had undertaken the searches and secondly, that the searches were not for a work-related purpose.[141]

265 To challenge the investigator's conclusions after weighing the evidence strays impermissibly into a merits review of the investigation. It was up to the investigator as to how he weighed up the evidence.

266 In respect of whether the issue of establishing a 'non-work purpose' required evidence of state of mind, the plaintiff's counsel referred R v Byrnes,[142] a High Court decision concerning an appeal from the Court of Criminal Appeal (SA). The case concerned charges and conviction of offences under the Companies (South Australia) Code. The appeal concerned charges of improper use of position to gain an advantage or cause detriment to others under s 229(4) of the Code. One of the particulars of charges was that the use of the position was improper because a purpose of the conduct 'was a purpose other than' that of the company. The majority stated:

Impropriety does not depend on an alleged offender's consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case.[143]

267 Given R v Byrnes concerns a particular statutory offence, it is distinguishable to the facts here. However, I do accept that establishing a 'non-work purpose' does not require establishing the plaintiff's state of mind at the particular time. I also accept there is a difference between establishing a state of mind and establishing purpose.

268 I reject the plaintiff's submission that if the SRO proves the searches but he is ignorant of or cannot recall the purpose of the searches, he will be 'guilty'. The investigator found the searches were done. Here, the investigator made a finding, after reviewing evidence, that he did not accept the plaintiff's explanation and concluded the searches were performed for a non-work purpose. The parties agree the investigator was not required to establish the plaintiff's state of mind. As the defendants say, this is not a case where the plaintiff said that running searches for a non-work purpose does not amount to misconduct.

269 I make an observation regarding the plaintiff's submission above on the finding of 'guilt'. There were two stages in the investigation. The first stage was to make factual findings. It concerned whether the searches were done and if so, whether there was a non-work purpose for doing them. The second stage was to make findings as to whether, if the factual allegations were proven, there was a breach of the obligations under the policies and statutes that it was alleged the plaintiff had breached. For the plaintiff to be 'guilty' of misconduct, breaches needed to be established. Accordingly, I reject the submission that proving that he undertook the searches in circumstances where he could not remember the purpose or was ignorant of it, would mean he is 'guilty'.

270 Further, the plaintiff has failed to establish that reframing the allegations, for instance, to allege that he undertook searches for personal reasons unrelated to his employment, would make any practical difference to the outcome of the investigation or the proposed disciplinary outcome. The plaintiff has not demonstrated that if the allegations had been framed differently, the onus of proof would change. He has not demonstrated that the investigation would have proceeded any differently in respect of his response to the allegations. The plaintiff has not proven that he would have responded differently to the allegations resulting in the investigator finding the allegations were not proven.

271 In conclusion, the plaintiff has failed to establish his claim.

272 For completeness, and before turning to the plaintiff's late application to amend his pleadings, I record the following. The parties identified an issue in dispute as to whether this Court has jurisdiction to make a declaration concerning the VPSEA under the FWA. Given the findings above, the plaintiff is not entitled to the relief, and it is therefore unnecessary to determine this issue.

Is it necessary to amend the 2FASOC to expressly plead a contravention of s 50 of the FWA in order to seek relief for that contravention?

273 The plaintiff seeks relief for contravention of s 50 of the FWA, notwithstanding he does not plead a breach of that provision in his 2FASOC filed on 31 January 2019. He says that it is unnecessary to expressly plead the contravention in order to obtain relief. Alternatively, the plaintiff made an application to amend his pleadings. There is overlap between submissions on these alternatives.

274 Here I address whether the amendment is necessary. The issue identified here by the parties' outline of issues in dispute was whether this proceeding involves a claim for contravention of s 50 of the FWA on the basis of the 2FASOC or the conduct of the trial.[144] If so, the plaintiff's submission is that an amendment to include s 50 of the FWA in the pleadings would be unnecessary. The real issue in dispute here therefore is whether it is necessary to amend the 2FASOC to include the s 50 claim.

275 The plaintiff submits that an amendment to expressly plead s 50 of the FWA in the proposed Third Further Amended Statement of Claim ('3FASOC') is unnecessary because:

(a) prior pleadings, the 2FASOC and now the proposed 3FASOC plead the material facts necessary to establish liability for contravention of s 50 of the FWA;[145]

(b) the defendants are not ignorant of s 50 of the FWA;[146]

(c) the provision has been the subject of correspondence between the parties and of written and oral submissions;[147] and

(d) the defendants joined issue with the plaintiff on the question of jurisdiction under the FWA, rather than objecting, and the case was conducted on that basis.[148]

276 The defendants submit that while the plaintiff's claim is in part based on a breach of the provisions of the VPSEA itself, this is not pleaded as a contravention of s 50 of the FWA.[149] They submit that s 50 cannot be pleaded because this Court has no jurisdiction to hear matters arising under the FWA.[150]

277 I find that it is necessary for the plaintiff to amend the 2FASOC to plead contravention of s 50 of the FWA in order to seek any consequential relief. My reasons are as follows.

278 Firstly, r 13.02(1)(b) of the Supreme Court (General Civil Procedure) Rules 2015 ('the Rules') requires that every pleading shall identify the specific provision relied on where a claim arises under an Act. The 2FASOC does not comply with the rule because it does not identify reliance on s 50 of the FWA. The rule is not satisfied by simply pleading the material facts necessary to establish liability. In Agtrack (NT) Pty Ltd v Hatfield[151] ('Agtrack'), Ormiston JA referred to the rule being introduced in 1986 'to overcome the requirement that only the material facts need be pleaded, not any legal conclusions, nor any statutory requirements'.[152]

279 Secondly, I refer to the analysis above on the role of pleadings: even if the case is run on different grounds, pleadings must be amended to accord with it.[153] That is, a breach of s 50 of the FWA must be expressly pleaded.

280 The plaintiff made reference to the decision of State Government Insurance Commission v Sharpe.[154] In that decision, Millhouse J stated that pleadings may be imperfect and decisions are no longer 'based on the state of pleadings irrespective of facts or justice'.[155] This statement was made in the context of a submission where the relevant statutory provision had been pleaded but certain material facts had not been pleaded, namely that the respondents had not known of an exclusion in an insurance policy. It is not applicable to the question of whether it is necessary here to amend the pleadings to include a statutory cause of action. This question is answered by the more recent authority discussed above, together with r 13.02(1)(b).

281 As to whether the defendants were aware of the statutory claim, that really goes to the issue of whether or not the amendment should be allowed rather than whether or not it is necessary for it to be pleaded.[156]

Is the plaintiff permitted to amend his claim to plead a breach of s 50 of the FWA?

282 The issue here is whether the plaintiff should be granted leave, pursuant to r 36.01 of the Rules, to amend his claim to plead a breach of s 50 of the FWA. The only amendment in the proposed 3FASOC is para 37A as follows.

Further, the breaches alleged in paragraphs 34 to 37 above were contraventions of section 50 of the Fair Work Act 2009 (Cth) as they were contraventions of the VPSEA.

283 The defendants oppose the plaintiff's amendment application on the following grounds.

284 Firstly, this Court's power to grant the plaintiff leave to amend under r 36.01 is not enlivened or alternatively that it is not an appropriate exercise of the power. This is because s 50 of the FWA is beyond this Court's jurisdiction. A breach of that provision is therefore not one of the 'real issues in dispute'. This means the Court lacks power, or it is inappropriate, to grant leave to amend. The interlocutory ruling of McDonald J in this proceeding was cited as authority for that proposition.[157]

285 Secondly, the manner in which the plaintiff has attempted to introduce claims under s 50 of the FWA has caused them substantial unfairness. They were unaware the plaintiff intended to allege contravention of s 50 until a day after the 2FASOC was filed.[158] They concede they became, or could have become, aware of the plaintiff's intentions on 1 February 2019 by way of his further submissions filed (without leave) on that day.[159]

286 The defendants had previously understood that breaches of the VPSEA were alleged without reference to the FWA, given the decision of McDonald J[160] to dismiss the plaintiff's application to amend and expressly plead contravention of s 50.[161] They dispute the plaintiff's assertion that McDonald J's decision was founded solely on the relief sought being outside this Court's jurisdiction for the following reasons:[162]

(1) McDonald J refused leave to include any claim arising under s 50, not merely one for pecuniary penalties. This is apparent from his Honour's refusal to allow paras 40 to 46 of the proposed Further Amended Statement of Claim.

(2) At para 25 of Tucker, McDonald J made it clear that the Court's jurisdiction to grant a declaration in respect of the VPSEA could only be enlivened on a jurisdictional basis other than the VPSEA itself.

(3) During oral argument in the Tucker ruling, counsel for the plaintiff acknowledged the parties were in 'heated agreement' that his client would need to pursue his claim for contravention of s 50 elsewhere. This was a representation to the Court. The plaintiff's position fundamentally changed between 13 June 2018 and 1 February 2019.

287 While the plaintiff had asserted a contravention of the FWA (without reference to s 50) in his submissions filed on 11 December 2018, the declarations sought were for breaches of the VPSEA not the FWA.[163] Their understanding, as evinced by para 8(b) of their submissions filed on 21 December 2018, was that the plaintiff was asserting a breach of the VPSEA only.[164]

288 The plaintiff's failure to identify his reliance on s 50 until the eve of the trial led the defendants to consent to the filing of the 2FASOC in circumstances where they would not otherwise have done so.[165] They also lost the opportunity to have the issue dealt with prior to trial. The prospect of the plaintiff being granted leave to amend his pleadings so close to trial would have been particularly poor.[166]

289 Thirdly, the plaintiff's attempt to reintroduce a claim previously refused by this Court is an abuse of process.[167] McDonald J's decision in Tucker to refuse to allow the plaintiff to plead breach of s 50 should not be dismissed as a mere interlocutory decision that 'does not bind Mr Tucker at trial'. Nor should the plaintiff be 'permitted to brush off concessions' made by his senior counsel.[168]

290 Fourthly, the plaintiff's delay in bringing his amendment application until the conclusion of the trial is contrary to ss 7 and 25 of the Civil Procedure Act 2010 ('CPA').[169] They put the plaintiff on notice from 21 December 2018 of the absence of a foundation to support a breach of the VPSEA itself. Indeed the plaintiff knew since 18 July 2018 that the Court refused him leave to amend his pleadings to allege contraventions of s 50 of the FWA. Having regard to the facts and other conduct in this matter, the plaintiff has not provided a satisfactory explanation for the delay. The delay has prejudiced them, having lost the opportunity to deal with the matter prior to trial and thereby avoid the need for an adjourned hearing date at significant additional cost.

291 Fifthly, the proposed 3FASOC is defective and if allowed, would be liable to be struck out. It pleads claims abandoned at trial,[170] leaving it unclear whether the plaintiff now seeks to re-enliven those claims or whether para 37A of the proposed 3FASOC is drafted too broadly. Further, para 37A is deficient because it alleges both the defendants contravened s 50 of the FWA. The VPSEA does not apply to the second defendant and therefore the amendment is embarrassing.[171] To allow the pleading now would deny them the opportunity to respond with a defence.

292 The plaintiff makes several submissions arising from the principles in Agtrack.[172] Firstly, the purpose of r 13.02(1)(b) of the Rules is to address where a defendant may be ignorant of a statutory obligation. The defendants do not suggest they were ignorant of s 50 of the FWA. Further, there is little reason why an amendment should not be permitted given all the material facts are pleaded and the amendment would 'merely characterise a liability which the facts will otherwise establish'.[173] If the facts are proved here, liability arises under s 50 of the FWA for breach of the VPSEA.

293 The factors from Namberry Craft Pty Ltd v Watson[174] to be considered in the exercise of the discretion to allow an amendment under r 36.04 of the Rules are addressed as follows. The amendment will cause no delay, as there are no further submissions or evidence required and it is merely to regularise the pleadings with the issues at trial. No costs have been or are said to have been wasted. No irreparable prejudice has been incurred by the defendants. The amendment will not lessen public confidence in the judicial system. The delay arises from the plaintiff's reasonable belief that all the parties accepted he was pursuing a claim under the FWA for contraventions of the VPSEA.

294 On the question of jurisdiction, the Court may grant leave to amend regardless of whether it has jurisdiction to adjudicate the claim.[175] However, this Court does have jurisdiction to entertain a claim under s 50 of the FWA and this is a matter arising under that Act by reason of the existing pleadings and conduct of the matter. Where the Court has not ruled on whether it has jurisdiction, to disallow the pleading on this basis 'puts the cart before the horse'.[176]

295 As to the prejudice alleged by the defendants, the lost opportunity to have an amendment to the 2FASOC dispensed with prior to trial was caused by the consent given by them to file the 2FASOC.[177] The defendants had opportunity to contest the amendment and were in no better position to do so prior to trial than now.

296 The defendants' submission that had they known the 2FASOC encompassed a s 50 claim, they would not have consented to its filing is contested. The defendants were told the amendment was to address their s 50 objection. They were obliged to raise any concerns about the 2FASOC, particularly if they truly believed it raised no actionable allegation.

297 Issue is taken with submissions of the defendants insofar as they refer to the defendants' state of mind. No affidavit material has been filed to identify what they believed or were confused by. The Court should not act on the defendants' assertions as to their state of mind in the absence of affidavit evidence.

298 As to the abuse of process allegations: making a claim not within a court's jurisdiction is not an abuse of process. Further, the application to amend is not an attempt to reintroduce a previously stuck out claim. The interlocutory ruling of McDonald J in this proceeding is distinguishable from the current application on two bases. First, the relief sought by the proposed amendments considered in Tucker was for penalties for contraventions of s 50, whereas the present relief sought is injunctive and declaratory, available by reason of the Judiciary Act 1903 (Cth). Second, the decision in Tucker was based on a concession by the defendants' counsel that this Court lacked jurisdiction to determine a claim pursuant to s 50 of the FWA - an incorrect concession which does not bind the plaintiff at trial. Withdrawal of that concession does not prejudice the defendants.

299 As to the question of delay: there was a common understanding between the parties that this proceeding involved contravention of s 50 of the FWA and therefore it was unnecessary to plead that provision.[178] The defendants had several prior opportunities to object to s 50 not being pleaded (i.e., upon receipt of the proposed 2FASOC), and consequently cannot now complain.

300 Allowing the amendment in order to resolve the FWA claim in this Court facilitates the efficient, timely and cost-efficient resolution of the real issues.

301 As to the defendants' submission that the proposed 3FASOC is defective: it may be refuted on two bases. First, the proposed amendment does not enliven the abandoned claims. Second, it is only the first defendant which is alleged in the pleadings to be the plaintiff's employer and to be covered by the VPSEA.[179]

302 Relevant principles and considerations relating to abuse of process follow. In Tomlinson v Ramsey Food Processing Pty Ltd,[180] the High Court stated:

Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute.[181]

303 In Commissioner of State Revenue v Mondous[182] ('Mondous') the Court of Appeal stated:

The considerations relevant to determining whether the raising of an issue in successive proceedings gives rise to an abuse of process have been articulated more than once along the following lines:[183]

The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice. Regard may be had to:

(a) the importance of the issue in and to the earlier proceeding, including whether it is an evidentiary or ultimate issue;

(b) the opportunity available and taken to fully litigate the issue;

(c) the terms and finality of the finding as to the issue;

(d) the identity between the relevant issues in the two proceedings;

(e) any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceeding;

(f) the extent of the oppression and unfairness to the other party if the issue was re-litigated and the impact of the re-litigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and

(g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.

304 Further, the Court of Appeal stated 'the identification of the issue said to be common to both proceedings plays a central role in deciding whether there is an abuse of process in seeking to litigate that issue again.'[184]

305 In Mondous, the Court of Appeal observed that the identified issues were 'merely findings' and 'only steps along the way to the determination of that proceeding'.[185]

306 Here, the issue is not successive proceedings but whether or not the application is an abuse of process because of an earlier decision in the same proceeding. Nevertheless, the considerations in Mondous are informative. So too are the considerations identified in abuse of process decisions concerning repeated agitation of the same application within a proceeding.[186] Those considerations ultimately concern whether it is in the interests of justice to permit the same application to be made again.[187] Significant principles identified in DA Christie Pty Ltd v Baker include 'the important public interest in ensuring that judicial determinations are binding, final and conclusive and that there should not be conflicting decisions on the same issue'.[188]

307 The Court of Appeal in Racovalis v Rescom Mortgages Pty Ltd[189] ('Racovalis') identified the following considerations:

the effect on a party who, having been successful in opposing an application, is faced with a second application; the effect of any delay in making a second application; whether there was an explanation for the new material not being provided to the court on the earlier application; the nature of that material; and whether a fair trial can be held.[190]

308 On 18 July 2018, McDonald J published a ruling in this proceeding.[191] McDonald J disallowed an application by the plaintiff to amend his statement of claim to plead a contravention of s 50 of the FWA. I recite relevant parts of that ruling.[192]

Section 50 of the FWA provides that a person must not contravene a term of an enterprise agreement. Section 50 is a civil remedy provision.[193] Section 539(2) of the FWA provides:

For each civil remedy provision, the persons referred to in column 2 of the item may, subject to sections 540 and 544 and Subdivision B, apply to the courts referred to in column 3 of the item for orders in relation to a contravention or proposed contravention of the provision, including the maximum penalty referred to in column 4 of the item.

Item 4 of the table in s 539(2) of the FWA provides that an application in respect of an alleged contravention of an enterprise agreement may be filed in the Federal Court, the Federal Circuit Court or an eligible State or Territory court. 'Eligible State or Territory court' is defined in s 12 of the FWA as including the Magistrates' Court and/or the County Court. The Supreme Court of Victoria is not an eligible court.

Paragraphs 40 to 46 of the proposed FASOC plead seven separate contraventions of s 50 of the FWA. Paragraph J of the prayer for relief seeks the imposition of penalties in respect of the seven alleged contraventions. The Supreme Court of Victoria has no jurisdiction to hear and determine the plaintiff's claim for penalties for contravention of the VPSEA.[194]

The Court has power under r 36.01(1)(a) of the Supreme Court (General Civil Procedure) Rules 2015 to grant leave to amend a pleading for the purpose of determining the real question in controversy between the parties. The exercise of this power is subject to the overarching purpose under s 7 of the [CPA] of facilitating the just, efficient, timely and cost effective resolution of the real issues in dispute.

The phrases 'real question in controversy' and 'real issues in dispute' must be read subject to any constraints imposed upon the Court's jurisdiction to resolve issues in dispute between the parties. The fact that the plaintiff wishes to pursue a claim for penalties for alleged contravention of the VPSEA does not confer upon the claim the status of 'a real issue in dispute'. This conclusion is reinforced by the fact that 'court' is defined in s 3 of the CPA as the Supreme Court, County Court or Magistrates' Court. Mr Williams QC, who appeared with Ms Paszkiewicz for the plaintiff, acknowledged that the parties were in 'heated agreement' that if the plaintiff wishes to pursue his claims alleging contravention of s 50 'we've got to go somewhere else to do it'.[195] An issue in dispute between the parties which is not within the Supreme Court's jurisdiction is not a real issue in dispute.

As the Court has no power to grant the relief sought in respect of the alleged breaches of the VPSEA it is highly questionable whether r 36.01 is a source of power to grant the amendment sought. Assuming in the plaintiff's favour that there is power to grant the amendment, it is not an appropriate exercise of that power to permit an amendment to plead a cause of action which the Court has no power to hear and determine.

I reject the plaintiff's application to file the proposed FASOC insofar as it includes the allegations in paragraphs 40 to 46 and the relief claimed in paragraph J of the prayer for relief. The plaintiff is otherwise granted leave to file the proposed FASOC...

309 The application now brought by the plaintiff to plead breaches of s 50 asks the Court to arrive at a contrary finding to McDonald J, on an issue already determined by his Honour in this proceeding. Crucially, his Honour did not allow an amendment to include seven paragraphs which pleaded contraventions of s 50. For example, proposed para 40 was disallowed and is as follows.

By reason of the matters set out in paragraphs 34(d) to 34(g) above, the defendants failed to afford the plaintiff procedural fairness as required by clause 21.6 of the VPSEA and thereby contravened section 50 of the FWA.

310 Nor did McDonald J allow the amendment to plead penalties for contraventions of s 50. Given that none of the seven paragraphs were permitted, I reject the submission that the issue before his Honour was confined to whether this Court could order penalties under the FWA. This view is supported by his Honour's finding in the ruling: 'it is not an appropriate exercise of [r 36.01 of the Rules] to permit an amendment to plead a cause of action which the Court has no power to hear and determine'.[196]

311 Further, I reject the plaintiff's suggestion that the ruling was based on a concession by his counsel. Clearly a concession was made - it is on the record. However, it is evident from the paragraphs above, McDonald J made a considered ruling following an analysis of the provisions in the FWA. It is immaterial that the plaintiff's 1 February 2019 submissions on the issue of jurisdiction were not before his Honour at the hearing on 13 June 2018. The plaintiff's submissions do not constitute new material unavailable in June last year, but rather arguments available at the time that were not made before McDonald J. No explanation has been provided as to why the submissions were not made then. The issue has already been decided without those submissions.

312 Whilst I consider that any prejudice to the defendants arising from the late amendment application could be met with an appropriate costs order, this factor does not override the following issues.

313 The current application, in seeking to reintroduce a s 50 claim, is an abuse of process that would bring the administration of justice into disrepute. I have reached this conclusion for the following reasons.

314 Firstly, the plaintiff's application theoretically risks different judges making different findings on the same issue in the same proceeding, without recourse to the appeals process. It would undermine the important role of that process by permitting the repeated agitation of the same application without regard to that process. The plaintiff elected not to appeal McDonald J's decision but now re-agitates the same issue.

315 Secondly, McDonald J's ruling was the ultimate finding on whether the plaintiff should be given leave to plead s 50 and on the underlying issue of jurisdiction. It was not simply a procedural step. It was a judicial ruling, the finality of which is subject only to the appeals process. I reject the suggestion that the ruling is not binding on the plaintiff at trial because it was interlocutory. It was not appealed and the proceeding continued on the basis that pleading s 50 was disallowed. To allow the plaintiff to plead s 50 now would undermine the principle of finality.

316 Thirdly, the plaintiff made the application during his reply submissions at trial: after 4pm on the fourth and final day of the trial and over 90 days after the trial commenced.[197] This was extraordinarily late and unfair. Although no application was made to reopen evidence, nor was fresh evidence required to agitate the application, there had passed almost 10 months between the ruling of McDonald J and the final day of the trial. During that time the plaintiff did not seek to amend his claim to plead s 50.

317 I reject the plaintiff's submission that the trial proceeded on a mutual understanding between the parties that it involved an allegation of breach of s 50 of the FWA. This does not satisfactorily explain the delay in seeking the amendment and is incorrect.

318 In their submissions of 21 December 2018, the defendants submitted that there was no jurisdictional basis for a claim based on breach of the VPSEA per se.[198] They were clearly concerned as to how breach of the VPSEA was actionable, going as far as to suggest that if it were based on s 50 of the FWA, then McDonald J's decision precluded such a claim in this Court. The opportunity here for the plaintiff to clarify the basis for his claim was palpable.

319 By way of letter dated 14 January 2019, the plaintiff's solicitors wrote to the defendants proposing amendments to the FASOC (but did not provide the proposed pleading).[199] The letter indicates that the amendments were to clarify the plaintiff's contention that the VPSEA was incorporated by reference into his contract and that the Court could, and should, grant relief for a contravention of the VPSEA. The letter says that if the defendants do not agree to both amendments then 'irrespective of whether ultimately your client succeeds in the Supreme Court, our client has the right to bring proceedings in the Federal Court of Australia to enforce the VPSEA'.

320 The plaintiff was again invited to clarify the basis for his claim by way of letter from the defendants on 16 January 2019.[200] The letter states that 'the jurisdiction of the Court with respect to contraventions of the VPSEA was dealt with by McDonald J in his interlocutory decision'. In respect of the potential Federal Court application, the letter states that making such an application while this proceeding is on foot would be an abuse of process amendable to summary judgment or stay. Further, that on 19 July 2018, the defendants had queried whether the plaintiff intended to file the proposed FASOC in accordance with leave granted by McDonald J, or if he intended to discontinue and pursue new proceedings in the Federal Court. The letter concludes: 'If the plaintiff wished to discontinue the Proceeding and pursue new proceedings in the Federal Court he could and should have done so at the time.'

321 Under cover of a letter dated 22 January 2019, the proposed 2FASOC was provided to the defendants.[201] The letter states that the amendments are 'minor in nature and better clarify and articulate our client's claim, in light of your client's submissions' and 'the submissions deal with the merits of the matter.'[202] Neither the proposed 2FASOC nor the submissions referred to s 50 of the FWA. The 2FASOC was filed by consent on 31 January 2019.

322 It was not until the plaintiff's submissions on 1 February 2019 that he revealed to the defendants that his claim again sought orders for a breach of s 50. This is particularly unfair after the defendants had repeatedly sought clarity on the issue well before trial.

323 The plaintiff submits that the timing of the amendment application was to clarify a matter that was the subject of an affidavit filed on the final day of the hearing and which formed the basis of a submission made that afternoon that the defendants did not know a claim was raised under the FWA. I reject that explanation. The affidavit, being the Gallaher affidavit, simply summarises and exhibits correspondence exchanged between the parties. The transcript confirms that the amendment application was made immediately following the Court's question as to whether the plaintiff needed to plead the contraventions of legislation that he said had been breached.[203] Further, it is the responsibility of a plaintiff, not a defendant, to plead the causes of action upon which they rely.

324 Finally, it is necessary to consider the application in light of ss 7 and 25 of the CPA.

7 Overarching purpose

(1) The overarching purpose of this Act and the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and costeffective resolution of the real issues in dispute.

(2) Without limiting how the overarching purpose is achieved, it may be achieved by -

(a) the determination of the proceeding by the court;

(b) agreement between the parties;

(c) any appropriate dispute resolution process -

(i) agreed to by the parties; or

(ii) ordered by the court.

25 Overarching obligation to minimise delay

For the purpose of ensuring the prompt conduct of a civil proceeding, a person to whom the overarching obligations apply must use reasonable endeavours in connection with the civil proceeding to -

(a) act promptly; and

(b) minimise delay.

325 The plaintiff's amendment application is inconsistent with the overarching purpose of the CPA and the obligation in s 25. As discussed above, it was not timely. It has caused further delay and unnecessary costs because it necessitated further submissions post-trial to address the question of amendment.

326 Given the factors above, it is not in the interests of justice to allow the amendment. It is an abuse of process. Consequently, I will not deal with the substance of the application. To do so would perpetuate the abuse.[204]

327 The plaintiff's claims in this proceeding are dismissed.

328 I will give the parties an opportunity to make submissions on the costs of the proceeding and the form of orders consequential to this judgment.

I certify that this and the 76 preceding pages are a true copy of the reasons for Judgment of Ierodiaconou AsJ of the Supreme Court of Victoria delivered on 16 July 2019.

[1] On 13 February 2018, the plaintiff's solicitors wrote to Mr Joyce that the report had been provided directly to the plaintiff, not to their office, and that they required a redacted copy of the report to ensure that taxpayer names were not identified. These issues were ultimately not pursued at trial.

[2] The relevant affidavits are contained in Exhibit A - Court Book.

[3] Affidavit of Tobias John Tucker, affirmed on 19 October 2018, [30] ('the third Tucker affidavit').

[4] Ibid [56]; see also exhibit TJT-06 to the third Tucker affidavit.

[5] Transcript of Proceedings, Tucker v State of Victoria (Supreme Court of Victoria, S CI 2017 05032, Ierodiaconou AsJ, 4-6 February 2019 and 7 May 2019) 93 ('Transcript').

[7] See, eg, the third Tucker affidavit (n 3) [41] cf the affidavit of Don Di Frederico, sworn on 5 December 2018, [5]-[9].

[8] Second Further Amended Statement of Claim, filed on 31 January 2019, [37(b)] ('2FASOC').

[12] Joint Statement of Agreed Facts, filed on 21 September 2018 ('SAF').

[13] Being seven days after it was approved by the Fair Work Commission: Victorian Public Service Enterprise Agreement 2016, cl 3.1 ('VPSEA').

[14] Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 421, 452-3; ACTEW Corporation v Pangallo [2002] FCAFC 325, [28].

[16] [2018] NSWSC 1378, [21] ('Canon').

[17] (1976) 50 ALJR 666, 668.

[18] [2008] VSC 77, [1]-[3].

[19] [2004] HCA 52; (2004) 219 CLR 165, 179 [40].

[20] [2015] QCA 127.

[25] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 47 [47].

[26] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 384 [78].

[27] Interpretation of Legislation Act 1984 s 35.

[28] Ibid s 36(2A).

[29] Explanatory Memorandum, Public Administration Bill 2004, 6.

[30] This obligation is pleaded in para 9 of the 2FASOC in respect of the obligation to treat the plaintiff fairly and reasonably. It is denied by the defendants in para 9(b) of the Amended Defence to the Second Further Amended Statement of Claim, filed on 1 February 2019 ('Amended Defence to the 2FASOC').

[31] Macquarie Dictionary (online at 6 June 2019).

[32] Section 45(2) of the Interpretation of Legislation Act 1984 provides that where the word 'shall' is used, the power must be exercised.

[33] However, s 7(5) does provide that s 7(4) does not affect that status or enforcement of any instrument created under the PAA based on public sector values.

[34] PAA ss 64, 65.

[35] Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297, 321 (Mason and Wilson JJ).

[36] See also the interlocutory injunction decision of Quinn v Overland [2010] FCA 799, [55] ('Quinn'). Bromberg J held it was seriously arguable that s 8 imposed an obligation on public sector Heads beyond mere establishment of processes.

[41] They say the Secretary to the Department of Treasury and Finance is the public service body Head: Amended Defence to the 2FASOC (n 30) [3(b)].

[43] 2FASOC (n 8) [8] and the Amended Defence to the 2FASOC (n 30) [8(a)].

[47] The plaintiff withdrew the allegations made in 2FASOC [34(d)] (with a consequential amendment to para 34(g) during trial). See question 3 of the agreed Outline of Issues in Dispute, 6 February 2019. It reflects para 34 (a)-(c),(e), (f) and (g).

[48] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, 162 [32] ('SZBEL').

[49] Coutts v Close [2014] FCA 19, [114] ('Coutts').

[52] Kioa v West [1985] HCA 81; (1985) 159 CLR 550 cited in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88, 95 [15] ('VEAL').

[57] Coutts (n 49) [117]; SZBEL (n 48) 161-2 [29].

[59] [2003] HCA 6; (2003) 214 CLR 1, 14 [37].

[60] SAF (n 12) exhibits SAF-5 and SAF-11.

[64] Agreed fact - see Transcript (n 5) 266.

[66] Agreed fact - see Transcript (n 5) 266.

[70] In a letter from the plaintiff's solicitors to the SRO dated 27 November 2017, reference is made to the investigator's 'pathway of reasoning' not being apparent: see ibid exhibit SAF- 33.

[71] This allegation was agreed as the case study by the parties: see Transcript (n 5) 314.

[74] See, for instance, his written witness statement given to the investigator and dated 4 September 2017, pages 3-4: SAF (n 12) exhibit SAF-24.

[75] Lisa Klug, Workplace Investigation Report: State Revenue Office (Report, 12 September 2017) 27.

[82] They exclude submissions I have already made findings about above in respect of other issues.

[84] Etherton v Public Service Board [1983] 3 NSWLR 297, 301, 303, 306-7. This case is distinguishable as it concerns a charge against an employee in a particular statutory context. Nevertheless, it provides a useful summary of principles. For general summaries of principles see also, Paula Hoctor and Michael Robertson, Workplace Investigations: Principles and Practice (LexisNexis, 2019) 109 and Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 6th ed, 2017) 532-5 [8.150].

[86] Letter from SRO to Mr Tucker dated 9 June 2017: ibid.

[87] Letter from SRO to Mr Tucker dated 4 July 2017: ibid exhibit SAF-10. There are alleged searches in respect of five customers, however one is a further search date in respect of 'Customer A', already identified in respect of the first tranche of allegations.

[88] Letter from SRO to Mr Tucker dated 19 September 2017: SAF (n 12) exhibit SAF-36.

[89] The letter from SRO to Mr Tucker dated 19 September 2017 states '(a) conduct contrary to the values referred to in clause 7.1 (b) of the [PAA]'.

[98] Ms Klug asked the plaintiff questions regarding both investigations during this interview: Exhibit TJT-18 to the affidavit of Tobias John Tucker, affirmed on 23 February 2018. Ms Klug conducted a second interview of the plaintiff on 10 August 2017, however that was limited to questions concerning the First Allegations: exhibit TJT-02 to the third Tucker affidavit (n 3).

[107] Ibid exhibit SAF-38; Transcript (n 5) 62.

[110] SAF (n 12) exhibits SAF-40, SAF-41, SAF-42, SAF-43.

[114] Ibid exhibits SAF-46, SAF-47, SAF-48, SAF-49.

[121] SAF (n 12) exhibits SAF-54 and SAF-55.

[126] Transcript (n 5) 60. See also Court Book (n 2) 660, 820, a list of customer identifiers and names provided to the plaintiff under cover of letters dated 18 July 2017 and 19 September 2017 from the SRO: SAF (n 12) exhibits SAF-13 and SAF-36.

[139] [2017] ACTSC 57.

[140] Ibid [183]-[185] (bold added).

[142] R v Byrnes [1995] HCA 1; (1995) 183 CLR 501.

[143] Ibid 514-15 (Brennan, Deane, Toohey and Gaudron JJ).

[144] Addendum to the Outline of Issues in Dispute, 9 May 2019, [3].

[145] Plaintiff's Submissions in Reply on Plaintiff's Application to Amend, filed on 17 May 2019, [1(d)] ('Plaintiff's Final Submissions').

[150] Defendants' Submissions on Plaintiff's Application to Amend the Second Further Amended Statement of Claim, filed on 13 May 2019, [8.1] ('Defendants' Final Submissions') .

[151] [2003] VSCA 6; (2003) 7 VR 63 ('Agtrack') and the High Court appeal Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; (2005) 223 CLR 251.

[154] State Government Insurance Commission v Sharpe (1996) 126 FLR 341.

[157] Tucker v State of Victoria [2018] VSC 389, [19], [20] ('Tucker').

[158] Defendants' Final Submissions (n 150) [15.7]; Transcript (n 5) 411.

[162] Defendants' Final Submissions (n 150) [14].

[165] Defendants' Final Submissions (n 150) [12].

[170] Citing paras 6, 7, 34(d), 34(g), 35, 36, 37(b) and (c) of the proposed 3FASOC.

[171] Defendants' Final Submissions (n 150) [33.5(b)]; citing s 51(1) of the FWA: 'An enterprise agreement does not impose obligations on a person, and a person does not contravene a term of an enterprise agreement, unless the agreement applies to the person.'

[172] Plaintiff's Final Submissions (n 145) [6].

[173] Agtrack (n 151) 75 [18] this principle was affirmed by the High Court in Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; (2005) 223 CLR 251.

[174] [2011] VSC 136, [38] (Vickery J).

[175] Plaintiff's Final Submissions (n 145) [24].

[179] Referring to paras 2 and 11(b) of the proposed 3FASOC.

[180] [2015] HCA 28; (2015) 256 CLR 507 ('Tomlinson').

[181] Ibid 518-19 (French CJ, Bell, Gageler and Keane JJ) (citations omitted).

[182] (2018) 55 VR 643 ('Mondous').

[183] See eg, Kermani v Westpac Banking Corporation [2012] VSCA 42; (2012) 36 VR 130, 154-5 [97] (Robson AJA, Neave and Harper JJA agreeing); Timbercorp Finance Pty Ltd (In Liq) v Collins [2016] VSCA 128 [228] (Warren CJ, Santamaria and McLeish JJA); Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198, 204 [32] (Handley JA, Mason P and Heydon JA agreeing); R v O'Halloran [2000] NSWCCA 528; (2000) 159 FLR 260, 291 [107] (Heydon JA, Spigelman CJ and Mason P agreeing); State Bank of NSW v Stenhouse Ltd [1997] Aust Torts Reports [81-423] 64,077, 64,089 (Giles CJ).

[184] Mondous (n 182) 673 [122] (McLeish JA).

[186] See, eg, DA Christie Pty Ltd v Baker [1996] VicRp 89; (1996) 2 VR 582 ('DA Christie'); Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd [2006] VSC 170 ('Tenth Vandy').

[187] Tenth Vandy (n 186); Racovalis v Rescom Mortgages Pty Ltd [2010] VSCA 55; (2010) 28 VR 250, 255 [30] ('Racovalis').

[192] Ibid [15]-[21] (bold added).

[194] Cf In the matter of Optimisation Australia Pty Limited [2018] NSWSC 31 [433]-[441]; The Australian Steel Company Limited v Communications Electrical, Electronics, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2004] VSC 61, [10].

[195] Transcript of Proceedings, Tucker v State of Victoria (Supreme Court of Victoria, S CI 2017 05032, McDonald J, 13 June 2018) 21.26-21.28.

[196] Tucker (n 157) [20] (bold added).

[197] Whilst the first three trial days were consecutive, the fourth trial date was set several months later to enable the filing of further submissions.

[198] Defendants' Outline of Submissions, filed on 21 December 2018, [9].

[199] Exhibit 'APG-1' to the affidavit of Alison Paget Gallaher, sworn on 6 May 2019 ('the Gallaher affidavit').

[200] Exhibit 'APG-2' to the Gallaher affidavit.

[202] Exhibit 'APG-3' to the Gallaher affidavit.

[204] Mondous (n 182) 680 [155]-[156] (McLeish JA).