HEADNOTE
[This headnote is not to be read as part of the judgment]
The respondent, Mr Stevo Derikuca, was employed as a cleaner by a company (ISS) which has a "whole of government" cleaning contract with Property NSW, a statutory body corporate. The respondent had been working as a cleaner at a public school in Sydney when a complaint was made about him alleging that he had said something to a teacher with sexual connotations. A course of events led to ISS terminating his employment. The respondent brought proceedings against the applicant, the Secretary of the Department of Education, challenging what were described by the parties as two "decisions" made by persons in the department. The first such "decision" was an email sent by a person in the Department to ISS, confirming an earlier discussion, indicating that the Department "would appreciate if action is taken to ensure that Mr Derikuca is not employed on any Department of Education facilities". The second decision was the placing of the respondent's name on the Department's "Not To Be Employed List". The respondent also claimed "compensation".
That matter was listed for final hearing before the primary judge. In due course his Honour made a number of orders in the respondent's favour. In respect of the first "decision", he made a declaration that the applicant had no power under certain provisions in the contract between Property NSW and ISS to exclude the respondent from school sites. His Honour granted certiorari quashing the second decision, on the basis that the act of listing lacked statutory authority, and, specifically, that the relevant statutory provisions, s 7E of the Education (School Administrative and Support Staff) Act 1987 (NSW) and s 7(1) of the Teaching Service Act 1980 (NSW), did not authorise including a person on the list who is not or had not been an employee of the Department. His Honour also directed that the parties attend mediation and, if the matter did not resolve, that each party file and serve submissions "on the outstanding issues referred to in the reasons for judgment". Those outstanding issues involved addressing a potential claim for damages for inducement of breach of contract, which claim had been identified by the primary judge although not raised by either party.
There were three main issues on appeal. The first was whether the second decision should have been quashed. The second was whether the declaration in respect of the first "decision" should be set aside. The third was whether the directions with respect to the potential claim for inducement of breach of contract should be set aside.
The Court (per Kirk JA, Simpson AJA and Basten AJA agreeing) upheld the appeal on each issue:
- In respect of the second decision, the primary judge appeared to premise his decision on the fact that the exclusion of the respondent from departmental sites was not authorised by the two statutory powers invoked by the applicant. The only statutory consequence of being placed on the list under either of the two provisions is that the person is placed on the list. Whilst this may subsequently have further consequences, any such consequences are the result of the exercise of other powers, which are not appropriately addressed by quashing a decision to put someone on the list: at [49]. No argument of text, context or purpose supports the conclusion that the two statutory powers are limited to persons who were currently working, or had previously worked, in the Department: at [60].
- In respect of the declaration made concerning the first "decision", the requests were not definitive and did not invoke any particular powers, and it is difficult to regard them as a "decision": at [70]. Nonetheless, the respondent sought to justify the declaration on the basis that it benefitted the respondent in unfair dismissal proceedings brought against ISS before the Fair Work Commission, and that it related to the respondent's putative claim for damages. The declaration does not have the significance claimed. It does not address the power of the Secretary to end the employment contract between ISS and the respondent, but whether the Secretary could exercise a power under the ISS-Property NSW contract. If the respondent sought to rely on the declaration in the way outlined it would be liable to cause confusion: at [77]. Further, ISS was not a party to the proceedings, and a court would be slow to make a declaration about the effect of a contract involving persons not before the court in the absence of good reason to do so: at [77]-[81].
News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410; John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19; Hobart International Airport Pty Ltd v Clarence City Council (2022) 96 ALJR 234; [2022] HCA 5, considered.
- In respect of the directions made for further submissions, there are circumstances in which it may be necessary or appropriate for a court to give parties a further opportunity to make submissions after a final hearing. It is also not uncommon for courts to give parties an opportunity to be heard in relation to what final relief should be granted: at [90]. Section 63 of the Supreme Court Act 1970 (NSW) confers on the Court broad power to resolve all issues in a controversy. However, there is a difference between resolving the controversy brought before the Court and fomenting further disputes: at [93]. The primary judge identified a whole new potential claim based on the tort of inducing breach of contract, which had not been raised by the respondent, which involved quite distinct issues to what had been addressed by the parties, and which required new evidence: at [100]. This goes beyond the kind of assistance which a court ought to provide a litigant in person: at [101].
Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150; [1981] HCA 48; Wang v Meng [2022] NSWCA 215; Strong Wise Ltd v Esso Australia Resources Pty Ltd (No 2) (2010) 185 FCR 237; [2010] FCA 575; Hamod v New South Wales [2011] NSWCA 375, considered.