Swiegers v Commonwealth Scientific and Industrial Research Organisation

Judgment

1. His Honour: The plaintiff, Dr Gerhard Frederick Swiegers, has brought proceedings alleging breach of contract arising from the termination of his employment with the defendant, the Commonwealth Scientific and Industrial Research Organisation ('CSIRO'), Australia's national science agency.

The Pleadings - a short summary

1. By a further Amended Statement of Claim ('ASOC'), filed on 31 March 2015, the plaintiff claims that the defendant breached his employment contract or converted employment contract by: 1. Failing to develop a role for the plaintiff upon his return from secondment with DataDot Technology Australia Pty Ltd ('DataDot') in January 2009, contrary to the term of his contract of employment as varied by the letter dated 18 September 2006 (further ASOC 11 and 29A); and/or 2. That on about 23 February 2009, the defendant terminated the plaintiff's employment, purportedly on grounds of redundancy in circumstances in which the plaintiff was not in fact excess to the staffing requirements of the defendant (further ASOC 28 and 29).
2. The plaintiff pleads, by virtue of the defendant's breaches of the employment contract, that the plaintiff suffered and continues to suffer part loss of income, part loss of superannuation, future loss of income and future loss of superannuation. The plaintiff claims damages, interest and costs (further ASOC 34).
3. In a Fifth Further Amended Defence ('Fifth FAD'), filed on 14 April 2015, the defendant denies that it was a term of the contract that upon the plaintiff's return from secondment, the defendant would develop a role for him (Fifth FAD 11(a)). The defendant pleads that on its proper construction, the term alleged was too imprecise to be given contractual meaning. Rather, it was a non-binding indication as to what the defendant intended to do for its benefit, in the event that the plaintiff returned from secondment (Fifth FAD 11(A)).
4. The defendant claims it terminated the plaintiff's employment because the plaintiff was excess to the defendant's staffing requirements in accordance with the entitlement to terminate. The defendant pleads that this entitlement arose as a result of staffing changes in the National Security Technology Partnerships Theme ('the Theme') necessitated by a decreased funding allocation to the Theme and a realignment of the defendant's research, capability and investment priorities away from security technology generally (Fifth FAD 28).
5. In addition to the retrenchment benefits offered to the plaintiff, by a letter dated 9 February 2009, the defendant offered a payment of an additional eight weeks' pay ('the early cessation payment') if the plaintiff elected not to contest his redundancy and agreed to cease employment on or before 23 February 2009. The defendant claims that, as a result of the plaintiff's acceptance of the early cessation payment, the plaintiff is estopped from challenging the lawfulness of the termination of his employment, or has otherwise waived any right to do so (Fifth FAD 36-38).
6. The defendant further and in the alternative pleads, by reason of the plaintiff's failure to fulfil the condition (that for the duration of the secondment, the plaintiff would keep the defendant informed of additional skills he acquired on secondment: Fifth FAD 11(b)); the plaintiff's failure to allege that the termination of his employment was contrary to the contract and any purported term arising from the 18 September 2006 letter (Fifth FAD 28(f)(ii)) and the matters in paragraphs 36 and 37, the plaintiff is estopped from alleging any purported failure by the defendant to comply with its obligations under the alleged employment contract, the converted employment contract and/or the letter from the defendant to the plaintiff dated 18 September 2006, or has otherwise waived any right he may otherwise have to do so (Fifth FAD 39).
7. In the event that it is found that the defendant has breached the contract, the defendant claims the plaintiff owed a duty to mitigate his damage (Fifth FAD 34(d)-(e)). The defendant pleads that the plaintiff has failed to mitigate his loss by failing to increase the level of his superannuation contributions so as to minimise, or eliminate, any adverse consequences that may result by the plaintiff ceasing to continue to be a contributing member to the defendant's Commonwealth Public Sector Superannuation Scheme. Furthermore, the defendant claims that the plaintiff failed to invest the moneys he received from the defendant on the cessation of his employment into an appropriate superannuation fund (Fifth FAD 34vi.(A)(B)).
8. The onus of proof is on the plaintiff on the balance of probabilities. The plaintiff was represented by M Gibian and the defendant by J Bourke QC with R Sweet.

Some Findings of Fact

1. The plaintiff is a chemist, holds a PhD in Chemistry and a Bachelor of Science (Hons) in Chemistry. He commenced employment with the defendant on 2 March 1998 as a Research Scientist in the CSIRO Molecular Science Division at Clayton, Victoria ('the CMHT').
2. By a letter dated 16 December 1997, the plaintiff was employed for a term of three years at a CSIRO Salary Level 6. The letter recorded that: "Your appointment to CSIRO is on the terms set out in the enclosed formal Document of Appointment."
3. The Document of Appointment, which was enclosed, included the following terms: "4.2 Your appointment may be terminated: (a) by you giving notice to CSIRO of resignation; (b) by CSIRO in the event of - (i) misconduct; (ii) incompetence; (iii) your becoming excess to CSIRO's staffing requirements; (iv) invalidity. … Governing provisions 11. Your appointment will be subject to and governed by: (a) the terms and conditions contained in this Document of Appointment; (b) the CSIRO Terms and Conditions of Service, as varied from time to time, which may be inspected at your place of employment; and (c) relevant present or future legislation, and awards of the Australian Industrial Relations Commission that are binding on CSIRO."
4. The plaintiff had been assured by Dr Albert Mau, the then acting Chief of the CMHT, that appointments at the plaintiff's level were initially term appointments that were subsequently converted to indefinite tenure. Dr Mau informed the plaintiff that the position would be converted to indefinite tenure within one year.
5. On 21 December 1998, the plaintiff and the defendant agreed to vary the employment contract so that the plaintiff's employment would continue indefinitely. In a letter dated 21 December 1998, Dr Mau wrote: "I am pleased to advise that I have endorsed the recommendation of the Divisional Management Committee and would like to offer you conversion to indefinite status."
6. In 2001, the plaintiff became the leader of the security devices research group at the CSIRO. His work involved creating chemical materials with novel luminescent properties for use in anti-counterfeiting, track and trace techniques for banknotes, identity documentation, and products security applications. This included what became known as the "DataTrace" and "Modulated Digital Images" ('MDI') technology.

Format of judgment

1. What follows in this judgment has been placed under the headings Argument, Matters of Evidence and Consideration. This approach has been adopted in order to identify and give appropriate consideration to the issues in the proceedings. The evidence (both oral and documentary) has been extensive and the parties' submissions have occupied many written pages and were spoken to on 30 June 2015.
2. For the sake of some brevity, I have not endeavoured to recount all of the evidence under Matters of Evidence that relate to an issue. Furthermore, much of the evidence overlaps and the placement of a particular piece of evidence in a part of this judgment does not mean that my consideration of it has been confined to a particular issue, or considered in insolation. All of the evidence has been considered in combination. Similarly, not every argument of the parties has been summarised, but considered.

A question of credibility - the Sting email

1. A matter that was said by the defendant to irreparably damage the plaintiff's credibility was the plaintiff's claim, that was withdrawn at the hearing, that a meeting arranged via email with the subject line 'Sting', with Mr Black and Drs Wilson and Osvath on about 3 December 2008, had a sinister purpose and indicated a conspiracy.
2. The defendant argued that the court should find that the plaintiff falsified a copy of the original 'Sting' document by writing in the names of Dr Osvath and Mr Black to match his false evidence about 'seeming' to see the names flash up on the screen at the time of the original printing. The defendant submitted that the truth of the matter was that the plaintiff assumed that any 'Sting' meeting may have involved Mr Black and Drs Wilson and Osvath, as at the relevant time, the plaintiff suspected that these persons were on the selection panel for the Theme Leader role.
3. The defendant referred to correspondence between the parties' solicitors, and the plaintiff's solicitor's refusal to provide a full explanation regarding the creation of the 'Sting' document. The defendant contended that the plaintiff refused to provide the information sought, even after his solicitors were put on notice that the defendant was investigating the authenticity of the document.
4. What was even more damaging for the plaintiff's credit the defendant argued was that, once he realised the GS73 'Sting' document had been revealed as a fake, the plaintiff nonetheless sought to engage his own expert evidence through Professor Robin Braun. The defendant pointed out that when answering the plaintiff's question, Professor Braun was not instructed to review the CSIRO IT system. The defendant argued that the court ought to infer that the plaintiff sought to engage an expert in this manner in order to "raise a red herring" (T95, 43) to cast doubt on Mr Rodney McKemmish's (Partner, PPB Advisory) conclusions without a proper basis for doing so.
5. In written submissions, the plaintiff explained that he thought that the calendar entry referred to a meeting arranged by Drs Wilson, Osvath and Mr Black. However, he accepted that he was mistaken, a meeting did not appear to have occurred between those individuals on that date, and the entry had another meaning entirely, relating to the performer 'Sting'. The 'Sting' email played no part in his case.

Matters of Evidence

1. The plaintiff pleaded in all versions of his Statement of Claim and para 23 of his further ASOC that: "On about 3 December 2008, Mr Graham Black, Dr Gerry Wilson and Dr Peter Osvath arranged a meeting via email, which had a subject line of 'Sting'."
2. The context in relation to para 23 of the further ASOC was outlined by Mr Gibian in his opening address (T12, 2-5; 14-17): "The plaintiff upon discovering that calendar entry discerned a meaning to that as having some reference to him and discerned a sinister intent behind that meeting… The plaintiff did discern that meeting as having some effect on him given its timing arising as it did a short time before in circumstances where he was concerned about his employment and shortly before being advised that he was to be made redundant."
3. The plaintiff recounted in his first witness statement dated 17 January 2014 (Ex D, 119): "I am aware that on 3 December 2008 Mr Black, Dr Wilson, and Dr Osvath arranged a meeting via email, which had the subject line 'Sting'. Annexed and marked GS73 is a copy of an Outlook Calendar Appointment for 3 December 2008. I obtained a copy of this Outlook Calendar appointment as I had access to this entry as an ordinary part of my work at CSIRO."
4. Annexure GS73 is as follows: "Outlook Calendar Appointment From: Gerry Wilson To: Peter Osvath, Graham Black Subject: Sting Start: Wed 3/12/2008 4:30 PM End: Wed 3/12/2008 5:00 PM Recurrence: (none)" NOT IMPLEMENTED: support for w:pict - without v:imagedata
5. On 2 April 2014, Mr Jamie Ronald from the plaintiff's solicitors wrote to the defendant's solicitors in response to their letter of 27 March 2014, titled "Meeting via email subject line 'Sting'" requesting particulars of the plaintiff's witness statement (Ex 23, V11, T212, Ann F). Mr Ronald stated that if the plaintiff "were to answer your request, he would, in effect, be permitting himself to be cross examined via correspondence. He does not so consent."
6. On 9 April 2014, Mr Jason Noakes, from the defendant's solicitors, wrote the following to the plaintiff's solicitors (Ex 23, V11, T212, Ann G): "We refer to your letter dated 2 April 2014. We note your client's refusal to inform the CSIRO how he came to be in possession of a purported Outlook Calendar Appointment titled "Sting", now attached as Exhibit GS73 to his witness statement. We put you on notice that the CSIRO is currently investigating the authenticity of this document, and the CSIRO has briefed internal and external IT consultants as part of this process."

Consideration

1. It must be remembered that the plaintiff no longer relied on the 'Sting' email as part of his case. He accepted that he had wrongly believed that it indicated a conspiracy against him. However, his conduct in adding "From: Gerry Wilson To: Peter Osvath, Graham Black" to the top of GS73 was not adequately explained by his testimony that the term "copy" did not necessarily mean a photocopy.
2. By adding those names, the plaintiff was seeking to bolster his claim that his termination by the CSIRO was not genuine, but was the product of ill will towards him by the CSIRO officers who were the subject of the Whistleblower Complaint.
3. It is evident from Mr McKemmish's statement that the plaintiff could not have seen that the 'Sting' email had been forwarded to Dr Osvath and Mr Black. Furthermore, the only reason that Dr Wilson created the 'Outlook Calendar Appointment' was to remind himself that the band 'Sting' was playing in Melbourne on 3 December 2008.
4. I do not accept the plaintiff's evidence that his conduct was not intended to be deceptive but was the product of inadvertence. Whilst I find that the plaintiff gave disingenuous evidence concerning the 'Sting' email, I reject the defendant's submission that it irreparably damaged the plaintiff's credibility. However, it demonstrated the lengths that the plaintiff was prepared to go, to establish his belief that there were those in the CSIRO who were maliciously acting together against him. The plaintiff's evident fixation with collusion, conspiracy and mala fides seriously undermined his credibility. I found that I was unable to accept such of his testimony that was controversial without independent evidence which indicated that the plaintiff's evidence was true.
5. It is convenient to provide here my evaluation of the principal witnesses for the defendant (Mr Black, Drs Savage, Wilson, Osvath, Simpson, Coia and Woodrow). I did not discern from their testimony before me that they acted at any stage with mala fides towards the plaintiff. Of those witnesses, who were the subject of the Whistleblower Complaint, they were prepared to admit that their relationship with the plaintiff had deteriorated, but I accept the general thrust of their evidence that they acted in the best interests of the CSIRO and were not motivated by a dislike for the plaintiff.
6. Although I did not accept the interpretation of cl 6 of the secondment letter (see [209] below), I found them overall to be honest and reliable witnesses.

Is the plaintiff's claim barred by reason of his acceptance of the "early cessation" payment?

Argument

1. The focal point of the argument is the plaintiff's acceptance of the early cessation payment.
2. The defendant contended that the plaintiff, by requesting the "early cessation" option, entered into a bargain with the CSIRO in return for the payment of an additional 8 weeks' salary, resulting in the sum of $18,630.28 being paid to him. The defendant argued that the plaintiff, as part of this bargain, gave up his right to "contest" his "redundancy."
3. The defendant submitted that the plaintiff cannot take the benefit of his bargain but avoid the burden of it. By accepting the early cessation payment in exchange for a promise to "not contest redundancy", the plaintiff entered into a contractual bargain by which he released the CSIRO from liability from any suit, or legal proceedings brought to "contest redundancy".
4. The defendant argued that, generally speaking, release clauses are not subject to special rules of construction. What needs to be shown, the defendant submitted, is that the language used discloses an intention to give up some right, or claim, in return for valuable consideration. The defendant cited Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165.
5. A reasonable person with knowledge of the surrounding circumstances, the defendant said, would understand that the purpose of the transaction, as conveyed by the objective conduct of the parties at the time, was to prevent the plaintiff from launching proceedings to litigate the circumstances of his redundancy, and to provide valuable compensation to him for giving up this legal right.
6. A further argument was that the plaintiff received the "early cessation" payment as satisfaction. The accord for this payment was the agreement not to contest his redundancy.
7. The plaintiff argued that the court would be very slow to reach the conclusion submitted by the defendant on the basis of the words in a form letter, which did not clearly bear that meaning or have that effect. It was contended that to constitute accord and satisfaction, it was necessary to be sure that the plaintiff intended to accept the payment in replacement or satisfaction of any existing right or claim. The plaintiff cited McDermott v Black [1940] HCA 4; (1940) 63 CLR 161 at 183.
8. The plaintiff submitted that to establish that a person is barred from bringing proceedings, it must be demonstrated that there exists an agreement binding upon the person that by clear words included settlement of the claim. The plaintiff put to the court that even if a release is entered into, general words will be read down so as to apply only to matters specifically in the contemplation of the parties. The authorities cited by the plaintiff included Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251 at 260; Grant v John Grant & Sons Pty Ltd [1954] HCA 23; (1954) 91 CLR 112 at 123-124 and Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 29. Another contention was that a release is given the meaning it would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties.

Matters of Evidence

1. The plaintiff recounted in his first witness statement (Ex D, 138): "On 20 February 2009, after being pressed by Mr Black, I accepted the "early cessation" redundancy that had been offered to me. I understood at that time that there was no possibility that CSIRO would continue my employment and accepted the early cessation benefit accordingly. I believed that even if I failed to accept the early cessation, my employment would in any event not continue and I would be retrenched…"
2. In cross-examination, the plaintiff agreed that he had nominated 8 February 2009 as his date of termination. He denied that he had already planned at that stage to start at DataDot the following month. He said "that was because [he] understood that the early cessation option was that you leave immediately. [He] misunderstood the early cessation option and [he] understood that to get that you had to leave by 8 February" (T123, 41-44).
3. His evidence on this topic included the following (T130, 27-37): "Q. So thus if you took the early cessation option you're out the door quicker, correct? Yes. Q. You would be at CSIRO a number of months more if you don't take the early cessation option? A. Yes. Q. But if you don't take the early cessation option there's more opportunities for you to spot an internal job to go to at CSIRO? A. Yes."
4. The plaintiff agreed that the extra payment that he received for not contesting the redundancy was $18,600. The plaintiff was asked by Mr Bourke (T133, 39-50): "Q.What happened after this was that you went into CSIRO on 23 February? A. Yes. Q. Although you were sick? A. I wasn't sick, I was stressed out of my bracket. I did not want to leave the organisation. I was being forced out the door. Mr Black was pushing me out the door as hard as he could. He was saying to me, people were saying to me, if you do this quick thing you'll get a better amount of money, you'll get more money. I did not want to go. I wanted to stay and I was forced out the door and I was actually ill on the day from ‑ from that. I knew if I stayed I would just get less money, I would still be pushed out the door. That was what was happening on that day so it was not a normal sickness."
5. In answer to Mr Bourke's suggestion that he was organising "the fast track out because [he] had had enough of CSIRO and [he] wanted to go back to DataDot", the plaintiff replied (T134, 23-32): "A. No, I wanted to stay at CSIRO. I was forced out the door and I was facing the end of not just my job but my career. I had to think about how I was going to fund myself, fund my family forward and I had to make a very very tough choice that actually made me ill. I found it so difficult to do and let me also say that I think after the email of 8 February or the letter of 8 February where Mr Black said to me you'll be terminated on the 16th or 13 April, I forget, I went to speak to Mr Black and I said to him "I have a position at the energy technology division. I've got six months or more of leave available to me. Can't I take my leave to see me through to that position?" And he said, "No, you cannot do that." And I said, 'That's absolutely ridiculous'."

Consideration

1. By accepting the early cessation payment of $18,630.28, the plaintiff promised "not [to] contest redundancy" and to cease employment on or before, 23 February 2009. His promise to cease employment by the nominated date was performed, but is he in breach of his promise not to contest redundancy by commencing the present proceedings?
2. The defendant relies on these words as constituting a complete release from any suit or legal proceedings brought to "contest redundancy". On the other hand, the plaintiff contends that these words are limited to not activating the CSIRO internal processes of complaint or grievance against redundancy, and did not amount to an "all claims" release.
3. In Karam v Australia & New Zealand Banking Group Ltd [2001] NSWSC 709, Santow J provided a helpful summary of the relevant principles relating to the construction of releases at [406]: "The principles applicable to construing releases or purported releases can conveniently be set out in a series of propositions: (1) In construing a release, here embodied in a letter of variation to the terms of lending, the Court should ascribe to the release the meaning that the release would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties at the time that they signed the document containing the release: ICS v West Bromwich BS [1997] UKHL 28; [1998] 1 All ER 98 per Lord Hoffman at 114. (2) In order for the Court to give effect to what in an objective sense the contracting parties intended, it is clear that a party may agree to release claims or rights of which it is unaware and of which it could not be aware, provided clear language is used to make plain that that is its intention: see Salkeld v Vernon [1758] EngR 153; (1758) 1 Eden 64, 28 ER 608 per Lord Keeper Henley. (3) Consistent with this emphasis on intention, general words in a release are limited to what was specifically in the contemplation of the parties at the time when the release was given: Grant v John Grant and Sons [1954] HCA 23; (1954) 91 CLR 112 per Dixon CJ, Fullagar, Kitto and Taylor JJ; Iletrait Pty Limited v McInnes (NSWCA, 17 April 1997, unreported) per Priestley JA with whom Grove AJA and Handley JA agreed). (4) Although there are no special rules of construction, such as a contra proferentem requirement, in the absence of clear language courts have been slow to infer that a party intended to surrender rights and claims of which it was unaware and could not have been aware: BCCL v Ali [2001] 1 All ER961 at 966 per Lord Bingham, (contrast Lord Nicholls in BCCL v Ali (supra) at 971-72 who was of the view that for the purposes of construction a general release is simply a term in the contract). (5) Although each release should be considered against its own matrix of facts, an example of this line of "cautionary principle" (Lord Bingham's phrase) is the frequently cited judgment of the High Court of Australia in Grant v John Grant & Sons Pty Limited (supra), where Dixon CJ, Fullagar, Kitto and Taylor JJ (at 125) referred with approval to the proposition put by Sir Frederick Pollock in his "Principles of Contract" (Stevens: London, 1950) 13th ed at 412, that "in equity a release shall not be construed as applying to something of which the party executing it was ignorant." (6) Despite the fact that, strictly speaking, releases are subject to no special rules of construction, a transaction in which one party agrees in general terms to release another from any claims upon it does have special features: BCCL v Ali at 984 per Lord Hoffman. (7) In such circumstances it may well be appropriate to imply an obligation upon the beneficiary of such a release to disclose the existence of claims of which it actually knows and which it also realises might not be known to the other party: BCCL v Ali at 984 per Lord Hoffman, for such an obligation is consistent with a concern to protect parties from sharp practice, by preventing advantage being taken of the known ignorance of the conceding party; BCCL v Ali per Lord Nicholls at 973. (The Bank made no such disclosure here.) (8) Most recently in this Court in Amaca Pty Limited formerly known as James Hardie & Coy Pty Limited v CSR Limited [2001] NSWSC 324, Bergin J adopted the principles of construction broadly as outlined above, including the "cautionary principle" and taking into account the purpose of the contract and the circumstances in which made."

Is the plaintiff's claim barred by reason of the principles of estoppel, waiver or election?

1. The defendant pleads that the plaintiff is estopped from alleging any purported failure by the CSIRO to comply with its obligations under the plaintiff's employment contract, or has otherwise waived any right to do so, by reason of the following conduct: (a) The plaintiff's acceptance of the early cessation payment; and/or (b) The plaintiff's failure to allege between 16 December 2008 and 23 February 2009, that the termination of his employment was contrary to: i. The plaintiff's employment contract; and/or ii. Any "promise" said to have been made in the secondment letter.
2. The defendant contended that at the time the plaintiff elected to take the early cessation payment, the plaintiff represented to the CSIRO that he was not willing to contest the redundancy by agreeing to terminate his employment on 23 February 2009. Further, in reliance on this representation, the defendant paid the early cessation payment of $18,630.28 to the plaintiff.
3. Another submission was that it is unconscionable of the plaintiff to secure the early cessation payment, as part of an agreement not to contest redundancy, and to then seek to assert that he was not genuinely redundant many years later. The defendant argued that this lapse of time (without explanation) made it more difficult for them to defend the plaintiff's substantive claims, given the need for the witnesses to give evidence about matters dating back to 2006, and the importance of witness credit in the proceedings.
4. The defendant referred to the secondment letter dated 18 September 2006. The defendant submitted that the plaintiff's evidence that he raised that letter at the meeting with Dr Coia should be rejected as a recent invention. The defendant argued that in circumstances where the plaintiff admits that he was aware of the secondment letter and its contents, did not raise it, and/or subsequently elected to exercise an inconsistent right for an early redundancy payment (including an "early cessation" payment), the court should find that the plaintiff is estopped from attempting to rely on this entitlement, or has otherwise waived any right to now rely on this entitlement, or has otherwise waived any right to now rely on the secondment letter. The defendant cited the observations of Brennan J in Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394 at 421-422 as being apposite.

Matters of Evidence

1. In his first witness statement dated 28 April 2014 (Ex 30, 26), Dr Coia referred to his meeting with the plaintiff on 8 December 2008. The recollections of Dr Coia and the plaintiff of what was said at that meeting differ in some aspects. Of particular relevance to the defendant's submission on estoppel and waiver is whether the plaintiff raised the secondment letter with Dr Coia at their meeting, or made mention of an obligation upon the CSIRO to "develop a role" for him.
2. Dr Coia relevantly states (Ex 30, 36): "I deny that I said I was unaware of any intention to "develop" a position for him or made mention of a letter from Dr Woodrow dated 18 September 2007. A prior arrangement or intention to "develop" a position for Dr Swiegers would have been out of the ordinary, based on my experience as a returning secondee, and if there had been any reference to such an intention in our meeting, I would have put this in my notes and followed up on it."
3. In a supplementary witness statement dated 19 December 2014 (Ex 31, 6 and 9-10), Dr Coia states: "I have now seen a letter dated 18 September 2006 addressed to Dr Swiegers from the then Chief of the Division, Dr Graeme Woodrow, which is attached to Dr Swiegers' witness statement dated 17 January 2014… I was not previously aware of this letter or its terms, nor had I seen a copy of the Secondment Letter prior to these proceedings. … Dr Swiegers did not at any time during the term of his secondment, or prior to his retrenchment from the CSIRO, in any conversation with or communication to me, …make reference to the Secondment Letter nor at any time assert he had any special employment entitlements arising from the Secondment Letter beyond those of his original employment contract. … Furthermore, it is alleged in Dr Swiegers' Further Amended Statement of Claim in the particulars under paragraph 29 that the CSIRO "failed to develop" a role for Dr Swiegers upon his return from secondment to DataDot. Dr Swiegers did not, at any time during the term of his secondment or prior to his retrenchment from the CSIRO, in any conversation with or communication to me… make the suggestion or complaint that the CSIRO was required to develop a role for him upon his return from secondment to DataDot, let alone, that the CSIRO had failed to satisfy any such alleged obligation."
4. In cross-examination, Dr Coia gave the following evidence (T823, 7-10): "Q. When you informed Dr Swiegers that there was no definitive job to go back to, Dr Swiegers asked you whether CSIRO was going to develop a role for him? A. No he did not."

Consideration

1. Notwithstanding these findings of fact, I do not think that there is merit in the defendant's argument. I have previously found that the promise to "not contest redundancy" was confined to the plaintiff's rights under cl 79 and Sch 3, cl 8 of the Enterprise Agreement.
2. In Legione v Hateley, Mason and Dean JJ said at 435: "First, it has long been recognized that a representation must be clear before it can found an estoppel in pais…"
3. The promise or representation need not be express but may be implied. Mason and Deane JJ further observed at 438-439: "The requirement that a representation as to existing fact or future conduct must be clear if it is to found to be an estoppel in pais or a promissory estoppel does not mean that the representation must be express. Such a clear representation may properly be seen as implied by the words used or to be adduced from either failure to speak where there was a duty to speak or from conduct. Nor is it necessary that a representation be clear in its entirety. It will suffice if so much of the representation as is necessary to found the propounded estoppel satisfies the requirement."
4. It is well settled for estoppel or waiver that the relying party (the defendant) must act or refrain from acting in reliance on the other party's (the plaintiff's) representation. In Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387 at 404, Mason CJ and Wilson J said: "One may therefore discern in the cases a common thread which links them together, namely, the principle that equity will come to the relief of a plaintiff who has acted to his detriment on the basis of a basic assumption in relation to which the other party to the transaction has "played such a part in the adoption of the assumption that it would be unfair or unjust if he were left free to ignore it": per Dixon J in Grundt."
5. The defendant has not established a clear or unequivocal representation by the plaintiff that he would not bring a cause of action for breach of contract. The plaintiff's failure to assert that the defendant was proposing to breach his contract of employment, or raise the terms of the secondment letter, could not have been reasonably understood by the defendant as being a representation that he waived his contractual rights. Nor could it have been reasonably understood that an election had been made to release the CSIRO from liability for any suit, or legal proceedings for breach of contract. Furthermore, the evidence does not establish that the defendant acted in reliance of a representation by the plaintiff that he would not institute a cause of action, such as the present proceedings.

Did the defendant breach the plaintiff's contract by failing to develop a role for him upon his return from DataDot?

1. In the further ASOC, the plaintiff pleads: "10. To facilitate the secondment…, the Plaintiff and the Defendnant (sic) agreed a variation in the Employment Contract or Converted Employment Contract in which the Plaintiff was seconded to [DataDot] on two years' leave without pay by the Defendant. … 11. Subsequent to the 18 September 2006 variation it was a term of the Employment Contract or Converted Employment Contract that upon his return from the secondment, the Plaintiff would remain an employee of the Defendant in a role developed for him."
2. The particulars to paragraphs 10 and 11 refer to the secondment letter, the critical paragraph of which is cl 6. The plaintiff further pleads (further ASOC 29A): "By reason of the failure to develop a position for the Plaintiff upon his return from secondment, the Defendant breached the Employment Contract or the Converted Employment Contract."
3. The plaintiff claims that cl 6 of the secondment letter created a contractual obligation for the CSIRO to continue the plaintiff's employment upon his return from the secondment in a role developed for him at that time.

Argument

1. The defendant submitted that the secondment letter, specifically cl 6, was not intended by the parties to have contractual force (Fifth FAD 11(aa)(ii); PWS 37). Rather, the defendant argued that the purpose of the letter was to set out the conditions of the secondment, it was not a document that granted the plaintiff "significant employment entitlements… that overrode fundamental employment terms that were in place" (DWS 501).
2. The plaintiff contended that the circumstances in which the contract was entered into and the context of the policies and operations of the CSIRO objectively made the contract binding. The plaintiff submitted that a reasonable person, in the plaintiff's position, would have understood the defendant to be bound by the terms of cl 6 of the secondment letter. The plaintiff cited Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120; (2007) 163 FCR 62 at [23].
3. The defendant further contended that the secondment term alleged by the plaintiff was unsupported by mutual consideration (Fifth FAD 11aa(i)). The plaintiff argued that the secondment letter provides consideration, as all that is needed is "some benefit, detriment or forbearance passing from the CSIRO to the plaintiff as its employee and from the plaintiff to the CSIRO as his employer" (PWS 44).
4. The plaintiff's contention was that the defendant undertook steps in the secondment letter which constituted a "detriment", such as continuing the plaintiff's employment without requiring him to perform work for the CSIRO for two years, as well as developing a role for him upon his return from the secondment. The plaintiff submitted that he had provided good consideration as he had waived the entitlements under his contract of employment.
5. Another argument advanced by the defendant was that the secondment term alleged by the plaintiff was uncertain or incomplete. The defendant contended that it was a statement of the intention of the Division and was not intended to provide the plaintiff with any entitlements. The defendant cited Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177; (2014) 315 ALR 243 at [58].
6. The plaintiff disagreed that the term to "develop a role" in the secondment letter, was too uncertain so that it could be considered void and unenforceable. The plaintiff relied on Upper Hunter County District Council v Australian Chilling & Freezing Co [1968] HCA 8; (1968) 118 CLR 429 at 436-437 (Barwick CJ).

Matters of Evidence

1. In October 2005, the defendant and DataDot established DataTrace, a joint venture company.
2. In Dr Houston's supplementary witness statement dated 19 December 2014, he said (Ex 25, 4): "In approximately mid-2006, Dr Swiegers initiated discussions with CSIRO Divisional management, including me, regarding an opportunity to undertake a secondment to DataDot."
3. In Dr Houston's former role as a Business Development Manager for the CMHT, he co-ordinated two aspects of the negotiations between the CSIRO and DataDot with respect to the plaintiff's secondment (Ex 25, 5): "a. arrangements to ensure the continuation of Dr Swiegers' superannuation benefits and Dr Swiegers' accrual of certain types of leave; b. arrangements for payment of a bench fee (the consideration payable to the CSIRO for permitting DataDot access to one of its scientists on secondment and located on site) and the protection of the CSIRO's intellectual property rights over Dr Swiegers' work."
4. Dr Houston explained that his main involvement in the plaintiff's secondment "was largely in relation to the negotiation and discussion of the main terms of the secondment with a number of relevant CSIRO functional areas (such as finance, human resources, operations and legal)" (Ex 24, 13). In cross-examination, he agreed that the negotiations he was referring to were between the CSIRO and DataDot in respect to this secondment, rather than negotiations with the plaintiff in a HR type role (T701, 19-24).
5. In Dr Woodrow's first witness statement dated 28 April 2014, he said (Ex 33, 101): "Despite the fact that Dr Swiegers was on secondment, he remained a CSIRO officer at all relevant times, with the benefits and responsibilities of such an officer…"
6. In Dr Woodrow's supplementary witness statement dated 17 December 2014, he said (Ex 34, 4): "In my capacity as Chief of the CSIRO Molecular and Health Technologies Division (Division), I was responsible for approving Dr Swiegers' application for two years' leave without pay to undertake a secondment with DataDot... To this end, I signed a letter dated 18 September 2006 formally advising of my approval (Secondment Letter) (Tab 270). I did not draft this letter. Generally speaking, such tasks are the provenance of CSIRO's Human Resources staff."
7. The defendant's online policy with respect to "Mobility of staff: Secondments" made provision for the return of secondment in the following terms (GS12): "A staff member with indefinite tenure should normally be guaranteed a position in the Division on return from the secondment..." (Italics added).

Consideration

1. The question is whether the plaintiff's contract of employment as incorporated in the Document of Appointment, was varied by the secondment letter so that it included cl 6. If it was, the contract of employment, as reflected by the Document of Appointment and the secondment letter, included a term that the defendant would develop a role for the plaintiff upon his return from the secondment.
2. Notwithstanding my finding that the plaintiff did not raise with Dr Coia the defendant's obligation to develop a role for him, I accept that he believed that the CSIRO was contractually obliged to do so. So much is evident from the terms of the email to Mr Cabraal and his conversation with Dr Wilson. However, the plaintiff's subjective belief does not answer the question.
3. Whether or not cl 6 was incorporated into the employment contract will depend upon the parties' intentions as objectively ascertained. As was said in Goldman Sachs JBWere Services Pty Ltd v Nikolich at [23] (Black CJ): "The principles to be applied in determining whether any, and if so what, parts of WWU were terms of the contract of employment are not in doubt. It is well established that if a reasonable person in the position of a promisee would conclude that a promisor intended to be contractually bound by a particular statement, then the promisor will be so bound. This objective theory of contract has been repeatedly affirmed as representing Australian law by the High Court. Thus, in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, 179, the Court said: '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 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.'"
4. In objectively ascertaining the parties' intention, the language of the secondment letter will be an initial consideration. The language "is to be viewed in context, not in abstract isolation. Further, regard must be had to the purpose and the object of the transaction": Romero, the Federal Court at [35] (Allsop CJ, Rares and McKerracher JJ).

Further Argument

1. The defendant submitted that if cl 6 had contractual force, then it should be subject to a condition that the plaintiff has a duty to liaise with the Chief or his delegate "in respect to the new skills that you have acquired and your expectations on return to the Division" (Ex 23, V11, T270). In Mr Bourke's opening address he said that cl 6 of the secondment letter (T22, 21-25): "Talks about him [the plaintiff] keeping us informed of any new skills he has acquired so that we can capture those in any role we might want to give him when he comes back but one, he didn't develop any new skills and two, if he did he didn't tell us about it. He had to play that part of the deal and then we might for our benefit organise a position for him…"
2. The plaintiff submitted that the court should not read cl 6 as imposing a condition upon the undertaking of the defendant to develop a role for the plaintiff, such that if it did not occur, the defendant would not develop a role for the plaintiff. The plaintiff contended that "Liaison involves maintenance of contact or communication between two persons and requires the cooperation of the two parties" (PWS 61). The plaintiff submitted that it was not the defendant's intention to be relieved of its obligation to develop a role for the plaintiff, if "liaison" did not occur.
3. In oral address, Mr Gibian said that "it's a bit rich for there to be a complaint about a failure to liaise where it's apparent no step at all was taken by CSIRO to initiate these arrangements or such liaison with the plaintiff" (POS, T1001, 17-19).
4. In any event, the plaintiff contended that he undertook the appropriate steps needed to liaise with the CSIRO representatives during his period of secondment, regarding the work he was completing and the skills that he was utilising. This included speaking with various CSIRO employees from December 2006, until at least December 2008, about the work that he had undertaken on the Biomimetic Catalysis project as well as about the book that he was writing.
5. The defendant pointed to the various witnesses who testified that the plaintiff did not inform the CSIRO of "new skills" that he had gained whilst on secondment, as the plaintiff was referring to a field of work that he had been involved in, prior to the secondment.
6. The plaintiff disagreed with the argument that a person can only acquire "new skills" if they are working in a completely different field. In oral address, Mr Gibian stated that the "ritual and identically worded incantations by CSIRO witnesses that they were not informed of new skills appear to be cut and paste jobs in their statements, and were informed by an absurdly narrow view of what new skills might be" (POS, T969, 48-50; T970, 1).

Matters of Evidence

1. On 12 December 2006, the plaintiff emailed Drs Woodrow, Wilson and others in relation to the Biomimetic Catalysis project. In this email, the plaintiff explained the "history of the work, what had been achieved in the prior few months (while [the plaintiff] was on secondment) and the new technical capabilities and skills that had been developed in respect of making hydrogen from water using sunlight" (Ex F, 13). The email stated in part that (GSR63): "… In effect, we have, for the first time, been able to sustainably replicate an important aspect of photosynthesis in a non-biological setting. We are planning to publish this discovery around March 2007 (once some isotopic labelling studies are complete)…"
2. On 8 May 2007, the plaintiff emailed Dr Woodrow (GSR70): "Just to let you know that my Catalysis book has been approved for publication by the board of Wiley, USA. This followed the commissioning by the company of several reviews (that turned out to be very complementary) and subsequent editorial approval of the work."
3. The plaintiff said that the ability to better mimic nature and to harness sunlight in an electrochemical device constituted another skill that he developed while he was on secondment.
4. The plaintiff said that he met with Dr Savage on 23 July 2008 and told him about the new technical capabilities and skills that were being developed in the catalysis project. He explained that Dr Savage had requested the meeting in order to discuss the secondment extension and his career plans.
5. By an email dated 21 July 2008, Dr Savage had written to the plaintiff stating, inter alia (GSR76; Ex F, 24): "It would also be good if you and I could have a chat before then to discuss the secondment extension and your career plans. Would it be possible for you to drop in sometime this week?"
6. The email exchange that followed between the plaintiff and Dr Savage included (GSR76; Ex F, 24): "…No problem also to meet and talk with you, but this will have to be on Wednesday. Can you make it then? Regards Gerry" "Hi Gerry, Wednesday is fine. I have meetings in the middle of the day but morning (9:30) or afternoon (2:30 onwards) would be fine. Let me know what suits you better. Cheers, Paul" "Hi Paul I will stop in tomorrow afternoon. Regards Gerry"
7. Dr Savage maintained that the plaintiff did not at any time during the secondment, or prior to his retrenchment from the CSIRO, inform him of additional skills he had acquired as a result of his secondment to DataDot. In his witness statement in reply, dated 13 February 2015 (Ex 22, 6), Dr Savage states: "…Although I cannot say whether or not Dr Swiegers and I met on or around this date, even if we did, and during the meeting he informed me about his work in the catalytic use of sunlight to split water into oxygen and hydrogen, this information would not amount to informing me of a new skill or capability. The work he refers to at paragraph 24 was an application of his existing expertise, which predates his secondment to DataDot. This is evident from Dr Swiegers' Curriculum Vitae (Tab 164), in which Dr Swiegers has listed his many publications in the catalysis field, and it is clear from Dr Swiegers' Curriculum Vitae that the catalysis work was one of his existing primary areas of expertise. Scientists publish new work and discoveries all the time, using their existing skills and expertise, but this does not necessarily mean they have developed new skills and expertise."

Consideration

1. The mutual obligations imposed by cl 6 included the expectation that the plaintiff "would continue to liaise with the Chief or his delegate, in respect to the new skills" that he had acquired and his "expectations on return to the Division." This information was to be used to develop a role for the plaintiff "within the Division that maximizes the additional skills" that he had gained. Whilst the obligation is expressed in terms of being "expected", it was a condition under which the plaintiff undertook the secondment.
2. A reasonable person in the position of the plaintiff would understand that the development of a role upon his return to the Division was dependent upon him maintaining contact with the Chief or his delegate in respect of the new skills that he had acquired. That a reasonable person would understand that the CSIRO was bound to develop a role for the plaintiff upon his return from secondment, but he was not obliged to liaise as cl 6 envisaged, defies both common sense and logic.
3. I accept the plaintiff's evidence that on 12 December 2006, he informed Drs Woodrow, Wilson and others of "the new technical capabilities and skills that had been developed in respect of making hydrogen from water using sunlight" (see [184] above). He maintained contact with Dr Woodrow by email on 8 May 2007.
4. Dr Savage did not recall a meeting with the plaintiff on 23 July 2008, but it is evident from the emails that they met on that day. It was Dr Savage's suggestion that they have a discussion concerning "the secondment extension and [the plaintiff's] career plans." In these circumstances, it is more likely than not that the plaintiff told Dr Savage about the new technical capabilities and skills that were being developed in the catalysis project.
5. I also accept that the plaintiff informed Drs Fisher, Savage and Mr Cabraal on 7 August 2008 of the work he was undertaking, the scientific papers that he had published describing new techniques that he had developed and of the significant developments in the catalysis technology. He further informed Dr Carras of these developments.
6. The real issue, it seems to me, is whether the information provided by the plaintiff amounts to "new skills" that he acquired as I am satisfied that he continued to liaise with "the Chief or his delegate." Dr Woodrow was the Chief of the CMHT from 1 July 2005 to 30 June 2010. Dr Fisher had been an Acting Chief. The defendant's criticism of the information provided is founded on the argument that the development of skills gained by the plaintiff whilst working for the CSIRO before the secondment did not amount to "new skills" within cl 6.

The CSIRO's power to retrench the plaintiff

1. The plaintiff submitted that cl 4.2 of the Document of Appointment was the sole source of the defendant's power to terminate his employment. The defendant, on the other hand, contended that cl 16.1 of the Terms and Conditions of Service gave content to the broad words in cl 4.2(b)(iii) of the Document of Appointment, that is, "becoming excess to CSIRO's staffing requirements." The defendant's approach is reflected in the Fifth FAD 5 ha (i)-(iii) which is relevantly pleaded as follows: "ha i. The Employment Contract (as varied) (the Contract) included express terms as set out in a document entitled "Document of Appointment"; ii Clause 11 of the Document of Appointment provided that the Plaintiff's appointment was subject to and governed by: (a) the terms and conditions of the Document of Appointment; (b) the Defendant's Terms and Conditions of Service, as varied from time to time; (c) … (iii) Further to ii.(b) above, the Defendant's Terms and Conditions of Service (as applicable as at the time of termination of the Plaintiff's employment), provided that the Defendant may at its choosing retire an employee or transfer them to other duties if it is necessary to curtail any phase of the activities of the Defendant or the officer is no longer required for the efficient working of the Defendant or there are a greater number of officers of any designation than is necessary for the efficient working of the Defendant (clause 16.1) (the entitlement to terminate for being excess to the Defendant's requirements);"
2. In the Fifth FAD 28(b)-(c), the defendant pleads: "(b) says it terminated the Plaintiff's employment because the Plaintiff was excess to the Defendant's staff requirements in accordance with the entitlement to terminate for being excess to the Defendant's requirements; (c) says the Plaintiff was excess to the Defendant's staffing requirements due to staffing changes in the National Security Technology Partnerships Theme necessitated by a decreased allocation to the Theme and a realignment of the Defendant's research, capability and investment priorities away from security technology generally; Particulars (i) Letter from the Defendant to the Plaintiff dated 16 December 2008; (ii) Email from Dr Osvath to Mr Black and others sent on 13 June 2008 at 12:54pm."
3. The plaintiff submitted that cl 11 of the Document of Appointment, properly construed, performs the function of informing him as to other instruments that may apply to his employment. This clause could not be construed as giving the Terms and Conditions of Service any greater effect than the instrument would have otherwise. The plaintiff further argued that cls 12 and 16 of the Terms and Conditions of Service, on their face, did not apply to his employment. The plaintiff contended that cl 4.1 of the Terms and Conditions of Service provide that an officer "may be employed either under these Terms and Conditions of Service or under the terms and conditions of the appropriate industrial award or determination." The plaintiff pointed out that only certain terms, not including cls 12 and 16, applied to all officers. It was argued that the Document of Appointment records in cl 1 that the plaintiff was employed "under the circumstances described in sub-clause 7(b)(v) of the CSIRO Tenure Award." The plaintiff submitted that, accordingly, the relevant Terms and Conditions of Service relied upon by the CSIRO have no application to him.

Consideration

1. Clause 1 of the Document of Appointment relevantly is as follows: "Position You are appointed to the full time position of Research Scientist in the Applied Chemistry and Polymer Science Program of CSIRO Molecular Science. Your appointment will be under the circumstances described in sub-clause 7(b)(v) of the CSIRO Tenure Award."
2. Clauses 4.1 and 4.2 of the Terms and Conditions of Service are in the following terms: "4.1 An officer may be employed either under these Terms and Conditions or under the terms and conditions of the appropriate industrial award or determination: 4.2 Notwithstanding sub-paragraph 4.1, the following Paragraphs of these Terms and Conditions shall apply to all officers, that is to say, Paragraphs 9, 11, 20, 20A, 20B, 21, 22, 23, 24, 24A, 25, 36 and 37."
3. As the plaintiff submits, cls 12 and 16 of the Terms and Conditions of Service do not apply to officers employed "under the terms and conditions of the appropriate industrial award or determination." The difficulty, however, for the plaintiff's argument is that it ignores the governing effect of cl 11(b) of the Document of Appointment which expressly provided that the plaintiff's appointment was subject to and governed by the CSIRO Terms and Conditions of Service. Clause 12.2 of the Terms and Conditions of Service applied to "indefinite officers" which the plaintiff was after 21 December 1998. Clauses 12.2 and 16.1 are reproduced at [33] above. In my opinion, these clauses applied to the plaintiff's employment. I do not consider that there is any inconsistency between the provisions of the Document of Appointment and the Terms and Conditions of Service.
4. I agree with the defendant's submission that the correctness of the CSIRO's construction of the retrenchment power is illustrated by the use of another example: termination in the event of "misconduct." As the defendant submits (DWS 446): "… On a plain reading of the Document of Appointment alone, CSIRO is entitled to terminate an employee with indefinite status for any type of "misconduct". However, "misconduct" has a particular definition within the Terms and Conditions of Service, being "a failure of the officer to fulfil his or her duty as an officer." Clause 19B of the Terms and Conditions of Service set out various actions which will constitute this type of misconduct, including wilful disobedience of a direction, incompetence, negligence and improper conduct in and outside employment."

Was the decision to retrench the plaintiff genuine?

1. I do not propose to recount all of the plaintiff's submissions on this issue as they occupy many pages of the written submissions (PWS 69-182). A convenient summary of the plaintiff's case on this topic is found at PWS 182: "For these reasons, the plaintiff submits that his retrenchment from employment with the CSIRO was in breach of his contract of employment in circumstances in which the decision to terminate his employment was not a genuine decision that he was excess to staffing requirements and the plaintiff was not actually excess to staffing requirements having regard to the following: (a) That those involved in the decision held and expressed extremely negative opinions of the plaintiff and were aggrieved at the plaintiff making the Whistleblower Complaint and other complaints in the course of his employment. (b) That a decision was made that the plaintiff would be made redundant as early as November 2007 without there being any basis for the decision and without investigating other work that could have been performed by the plaintiff. (c) That, contrary to obligations upon the CSIRO under its enterprise agreements and in contrast to the treatment of other employees, the plaintiff was not advised he was regarded as redundant for in excess of 12 months. (d) That, again in contrast to the treatment of other employees no genuine efforts were made to redeploy the plaintiff or to find alternative projects on which the plaintiff could work. (e) That there was research work available and required by the CSIRO that was suitable for the skills, experience and capabilities of the plaintiff at the time he was identified as redundant and that his employment was terminated."
2. The plaintiff submitted that the events which ultimately resulted in the plaintiff being retrenched appear to have commenced in late 2007 with the making and implementation of a decision to close the MDI project. The plaintiff argued that the reasons for and timing of the decision to cancel the MDI project ultimately turned out to be obscure, having regard to the whole of the evidence. The plaintiff stated (PWS 90): "… Somewhat extraordinarily for a public sector agency, no document appears to exist recording the decision and no person was able to give evidence as to how it was made."
3. It was contended that the evidence was entirely unsatisfactory. The plaintiff submitted that the conclusions that can be drawn from the evidence are (PWS 102): "(a) Firstly, that discussions had occurred resulting in the MDI project being earmarked for closure some time prior to October 2007 and Mr Black at least was lead to believe the project would be closed. (b) Secondly, the Project Review Committee did nothing more than suggest that the CSIRO contemplate closing the MDI project and did not made (sic) a decision to close the project. (c) Thirdly, the decision was made to close the project after the meeting of the Project Review Committee in discussions between Dr Woodrow, Dr Wilson, Dr Simpson and Dr Osvath, persons named in the Whistleblower Complaint."

Matters of Evidence - the closure of the MDI project

1. In the plaintiff's second witness statement (Ex E, 91, 151, 152, 177 and 214) he stated: "The concept of the MDI technology arose out of a project to create a "self-authenticating" banknote. Dr Woodrow neglects to state that on that same page 10 of his presentation are also listed projects which were to receive increased funding. One of these was "Security Devices" - i.e. the product security research group, which included the MDI technology. In fact, the MDI technology received additional funding at this time. A new staff member, Dr Mat Ballard, was assigned to work on the technology at that time. Thus, contrary to Dr Woodrow's assertions, in May 2006 the MDI technology was considered to meet all of the requirements listed in sub-paragraphs (a)-(d). Indeed, it met them so strongly, that it received additional funding. Yet, effectively, one and a half years later, it was closed, according to Dr Woodrow, due to "lack of impact" and "lack of alignment." The decision to close the MDI project was made by the DMT in a meeting over 12-14 November. Dr Wilson remained the Stream Leader for the MDI project at the time. Dr Wilson was aware that, in April 2007, I had made a formal complaint against him alleging illegalities… … It is clear that six members of the panel were whistleblower respondents and the majority of the rest were subordinates of whistleblower respondents… The suggestion is not that Dr Osvath or anyone else would compromise the Security Group simply to get back at me. It is rather that they would do what their superiors wanted them to do, or what they thought they wanted them to do. Their superiors had earlier told most of the senior managers through Dr Wilson that the Division chief wanted them to "work as a team, so welcome aboard!!".
2. In cross-examination, the plaintiff gave the following evidence in relation to the MDI project (T307, 48-50): "Q. Do you accept, you say that this closure was somehow a way to target you? A. Yes, I think it was, yeah."
3. Dr Woodrow's executive assistant took minutes of the Project Review on 12 and 13 November 2007 (Ex 33, 59; Ex 23, V6, T64). The following individuals were recorded as being members of the "CMHT PROJECT REVIEWS NOVEMBER 2007": "Project Review Committee Graeme Woodrow Greg Simpson Megan Fisher Keith McLean David Down Bruce Kemp Ian Elsum Lee Karolidis (Minutes) In Attendance: Gerry Wilson Pat Hartley (alternate for Peggy Stasinos) Paul Savage"

Matters of Evidence - informing the plaintiff of potential redundancy

1. Clause 3(a) of the R&R Policy is quoted at [34] above. Clause 3(b) of Sch 3 of the CSIRO Enterprise Agreement 2008-2011 is quoted at [35] above.
2. Clauses 3(e) and (f) of the R&R Policy are as follows: "(e) One calendar month after receiving the formal advice referred to in subparagraph (a), unless the officer has secured alternative CSIRO employment, the officer will be given 5 weeks notice of termination. During the notice period the officer will advise CSIRO if income maintenance is their preferred termination benefit. (f) During the notice period the officer will continue to be eligible for redeployment within CSIRO. Employment will terminate at the completion of the period of notice if the officer remains excess to CSIRO's requirements. Where, prior to the completion of the notice period, the officer seeks appointment to an advertised vacancy but has not been assessed by the end of the notice period, employment will be extended until the officer's suitability for that position has been determined."
3. On 29 November 2007, Mr Black emailed Drs Woodrow and Simpson with the subject line "MDI project closure" outlined above in [278]. The email stated in part (Ex 23, V6, T76): "… We have examined the implications for staff around this closure (as consequence of Project Review Process) and have determined that we have roles in other areas for all except Matt Ballard and Gerry Swiegers The intention is that Peter Osvath and I would have discussions with both these officers (both CSOF 7M) to advise of potential redundancy situation Graeme Before we undertake this discussion, Alastair Robertson should be advised of this action in relation to Gerry's whistleblower action. If so do you want to discuss first?"
4. On 3 December 2007, Dr Woodrow replied to Mr Black's email (Ex 23, V6, T77): "Graham As discussed in person, we shouldn't proceed with this until we have advice from above that it is OK to do so. Graeme"
5. In cross-examination, Dr Woodrow gave the following evidence in relation to the 29 November 2007 email (T884, 9-41): "Q. Mr Black indicates, "The intention is that Dr Peter Osvath and himself would have discussions with both these officers to advise of potential redundancy situation." Do you see that? A. I do see that. Q. Mr Black regarded it as a potentially redundancy situation; do you see that? A. Yes. Q. He was the HR manager; correct? A. That's correct, yes. Q. You understood that he was proposing to advise Dr Swiegers and Dr Ballard in accordance with the redundancy processes that they were potentially redundant; correct? A. That appears to be his intention at that time from this email, yes, that's correct. Q. You weren't second guessing his judgment about the processes that followed; correct? A. Sorry, I didn't understand. Q. You said yesterday afternoon, in a general sense you followed advice in respect of HR processes and the like; correct? A. Yes, indeed I did, yes. Q. Mr Black was saying what he thought should occur in accordance with those processes in the situation; correct? A. He was advising me what he thought, yes. Q. You've then said, and what he thought, is that Dr Ballard and Dr Swiegers should be advised of the potential redundancy situation; correct? A. That is correct, yes."

Matters of Evidence - reasons given for redundancy

1. In Dr Woodrow's first witness statement (Ex 33, 22) he stated: "Dr Swiegers become considered for retrenchment following various reviews of CMHT's portfolio that took place from 2005 to 2007, coupled with the inability to redeploy him elsewhere in CSIRO. I reviewed the documents that comprised the "business case" for Dr Swiegers' redundancy prior to these documents being sent off for approval at Executive level. I satisfied myself that the matters constituting the case for redundancy were correct. I then forwarded them to my Group Executive, Dr Steve Morton, at the request of Mr Graham Black, HR Advisor to CMHT. Based on my knowledge of the circumstances, Dr Swiegers was made genuinely redundant. This decision had nothing to do with Dr Swiegers' Whistleblower Complaint."
2. Dr Woodrow stated further (Ex 33, 79-87): "At this time, the CSIRO's Terms and Conditions allowed for the retrenchment of any officer who was in excess to the requirements of the organisation, as determined by an authorised person (Tab 13, cl.16). As the Business Unit Leader of CMHT, I was an authorised person to exercise the retrenchment power under cl.16 of the CSIRO's Terms and Conditions with respect to Dr Swiegers. As at late December 2008 / early 2009, the CSIRO had a procedure in place to ensure that no employee was retrenched without a business case being presented to justify the retrenchment. On or around 30 January 2009 at 10:00am, I received an email from Mr Black with attached two documents entitled: "Information Required for Redundancy" and "Redundancy Checklist for CEO". Those documents together are referred to within the CSIRO as the documents comprising the "business case" for retrenchment (Tab 177). Based on my review of these documents, I considered that the business case established that Dr Swiegers was in excess to the CSIRO's requirements, and I made the decision that Dr Swiegers should be retrenched on this basis. It was CSIRO's HR practice at the time that the business case be also sent to the relevant Group Executive, Dr Steve Morton, and to the two Deputy Chief Executives, Dr Alastair Robertson and Mr Mike Whelan, for approval. On 30 January 2009 at 5:44pm, I forwarded the business case for Dr Swiegers' retrenchment to Dr Morton (Tab 177). In this email, when requesting approval of Dr Swiegers' redundancy, I stated, in part: "This has been coming a long time and would have happened earlier except that Gerry [Swiegers] has been on secondment to a company. Gerry [Swiegers] is not contesting this action and has asked for fast tracking." (Tab 177) The reference to the fact that Dr Swiegers' redundancy had "been coming a long time and would have happened earlier that [he had] been on secondment to a company" is a reference to the fact that, prior to his secondment, Dr Swiegers was allocated to the MDI Project, which had subsequently been closed at the decision of the Project Review Committee in November 2007. All other things being equal, the decision to close the MDI Project would quite likely have led to Dr Swiegers being made redundant at or around the time of the closure, but for the fact that he was on secondment from that time until January 2009. Mr Whelan and Drs Morton and Robertson subsequently approved of my decision to retrench Dr Swiegers (Tab 180)."

Matters of Evidence - contrast with treatment of other employees

1. In Dr Coia's first witness statement (Ex 30, 5) he stated: "I commenced employment with CSIRO on or about 9 June 1994 in the role of Postdoctoral Fellow. From 1995 to 2001, I variously held the positions of Research Scientist and Senior Research Scientist. From August 2001 to August 2005, I undertook a secondment to Diapep/EvoGenix as a Research Manager. After this secondment ended, I returned to the CSIRO."
2. On the topic of preferential treatment given to him upon his return from secondment, Dr Coia's evidence in cross-examination included the following (T803, 6-44): "Q. Two things about that. First, the secondment period that you had I think for a four year period, you were still physically located at the CSIRO laboratories at Parkville? A. That's correct. Q. Perhaps that assisted you, but in addition to that there were discussions initiated by the relevant management with you about identifying the projects that you'd work upon return? A. There was some discussion but I again, as I mentioned earlier, I did struggle to find my way back into CSIRO at that point. Q. Am I correct in understanding from that, that there was no obvious position for you to return to from the secondment? A. That's correct. As part of the secondment papers that I signed moving out there was no guarantee of a position upon return to CSIRO. Q. We'll stick with my question. Upon your return, there was no obvious position that you were taking up? A. That's correct. Q. But you returned and you managed to, in discussions with others no doubt, cobbled together some work that you could do going forward, correct? A. Correct. Q. That took a period of time and there was a bit of struggle, as you say? A. Correct. Q. You were not advised at that time that you were potentially redundant? A. No, not at that time. Q. Were you ever advised that you were potentially redundant? A. No, I was not because I can answer that question if you wish but‑‑ Q. You were never advised that you were potentially redundant, correct? A. That is correct. Q. That was the case even though there was no obvious position for you to return to upon the end of secondment, correct? A. That is correct."
3. Exhibit X is a calendar invitation requiring Drs Wilson, Simpson and Osvath to meet from 2:00pm - 2:30pm on the 7 December 2007: "When: Friday, 7 December 2007 2:00 PM-2:30 PM (GMT+10:00) Canberra, Melbourne, Sydney. Where: Greg S's office"

Matters of Evidence - redeployment of the plaintiff

1. The CSIRO Enterprise Agreements (Exs A and B) in Sch 3 contain procedures to be applied in the event of redeployment.
2. In the plaintiff's first witness statement (Ex D, 123, 125-126) he stated: "Between 18 December and 23 December 2008 Dr John Carras, the deputy Chief of the CSIRO Division of Energy Technology, and myself exchanged a number of emails in which I requested an immediate transfer to his Division. Dr Carras had offered to support a position for me at his Division in June - July 2009, at which time new funding would be available to him. The request for an immediate transfer was denied as the funding was not yet available. Annexed and marked GS77 is a copy of the email exchange between 18 December and 23 December 2008. Annexed and marked GS78 is a copy of an email, dated 30 January 2009, from Mr Black to Dr Woodrow saying that opportunities for my redeployment had been unsuccessful and approval was needed from Dr Woodrow's supervisor, Dr Steve Morton, for the redundancy. I became aware of this email from documents produced in these proceedings. On 9 February 2009 I was informed by Mr Black that he had undertaken a search for a position for me across the entirety of CSIRO and that no position was available for me…"
3. In the plaintiff's third witness statement he recounted (Ex F, 41): "On the day that I returned from Secondment, 27 January 2009, I met with Mr Black. At the meeting I said words to Mr Black to the effect that "I will do any job for which I am qualified within the Melbourne area."
4. The plaintiff's evidence in cross-examination relating to the 27 January 2009 meeting with Mr Black included the following (T129, 23-28): "Q. You told him at this meeting that you were only prepared to consider roles at CSIRO in Melbourne? A. Yes, correct. Q. You never said anything about being prepared to work at a lower level? A. I said to him I will do any job for which I'm qualified."
5. In Mr Black's first witness statement (Ex 7, 25-28) under the heading "Redeployment efforts" he stated: "I had communication directly with various managers at the CSIRO regarding the search for suitable vacancies for Dr Swiegers' redeployment. Examples of these interactions in the search for redeployment opportunities are contained in the CSIRO documents folder (Tabs 165 to 174). Furthermore, when an employee is identified as "potentially excess", the HR Division enters the details of that employee into its internal database, Redeploy. This database is accessed by the CSIRO's HR and recruitment staff Australia-wide to enable them to identify internal candidates who are available for upcoming positions. Although I have no specific recollection of entering Dr Swiegers' details onto Redeploy, I or one of my team would have done this as a matter of course in our redeployment efforts. During the redeployment phase, Dr Swiegers had access to all vacancies across the CSIRO via the intranet, and had been informed that he had such access. Ultimately, no roles were identified to enable the redeployment of Dr Swiegers within the CSIRO."

Consideration

1. I am not persuaded on the balance of probabilities that the decision to cancel the MDI project had anything to do with the Whistleblower Complaint, or any feelings of antipathy against the plaintiff. Like other projects within the CMHT, the MDI project was subject to review by the Project Review Committee.
2. During the hearing of this case, it became evident to me that the CSIRO had limited resources and decisions about projects had to be made so as to free up available resources for higher priority projects. The MDI project had not brought in substantial commercial interest. As Dr Savage explained, the significant efforts to attract interest in the technology had not led to customers willing to take on the MDI project.
3. Although Drs Woodrow, Wilson, Simpson and Osvath were involved in the decision to close the MDI project and had been subjects of the Whistleblower Complaint, I am satisfied that their support for the cancellation of the project was founded on commercial and strategic considerations and not upon animus for the plaintiff.
4. It appears likely that there was a meeting on or around 19 October 2007, between at least Mr Black, Drs Osvath and Simpson, during which the plaintiff's return from the secondment was discussed. This meeting took place before the decision to close the MDI project. I find it unremarkable that such a meeting would occur when a CSIRO employee was to return to CMHT following an external secondment. The matter to be considered was where the plaintiff would fit within the Division upon his return in mid-2008.
5. I do not find that the difficulties that these witnesses experienced in recalling the meeting detracts from their credibility. It is hardly surprising given their senior positions and the plaintiff's delay in commencing these proceedings that the meeting could not readily be remembered.
6. In the passage quoted at [282] above, Dr Osvath outlined the possible difficulties fitting the plaintiff within the Division upon his return, as most of the plaintiff's work prior to the secondment had been "spun out" to DataTrace and there wasn't money to fund a new project. Furthermore, the MDI project had been a small part of the plaintiff's work.
7. I am not satisfied that this meeting had any nefarious purpose, such as a plan to get rid of the plaintiff from the CSIRO. It was a meeting to remind the senior scientists to give thought to the projects that the plaintiff could possibly be assigned to, upon his return from secondment.

Was the plaintiff actually excess to the defendant's staffing requirements?

1. Another question that remains to be answered is whether the plaintiff was actually excess to the CSIRO's staffing requirements.

Argument

1. The plaintiff referred to research work that was available and required by the CSIRO that was suitable for his skills, experience and capabilities at the time he was identified as being redundant and his employment was terminated. He pointed to cl 4.2(b)(iii) of the Document of Appointment and argued that he would be considered "excess to the CSIRO's staffing requirements" only if there was no available work for the plaintiff to undertake. He submitted that when considering whether a person was excess to staffing requirements or rather, could be redeployed, the assessment should not be limited to advertised established positions and cited Technical and Further Education Commission t/as TAFE NSW v Pykett [2014] FWCFB 714; (2014) 240 IR 130.
2. A number of employees who were engaged in the 2008/2009 period to perform work that the plaintiff said that he was qualified to perform and could perform, were identified. Particular reference was made to Dr Michelle Groarke. The plaintiff stated that although formally appointed as an organic chemist, Dr Groarke's recruitment was prompted by the need for a scientist to perform work on the Idemitsu project which required high level organometallic chemistry skills. It was submitted that the work on the Idemitsu project fell precisely within the field of organometallic chemistry in which the plaintiff had been trained and had worked for many years. Reference was further made to Dr Cook, who had been undertaking work on the Idemitsu project prior to Dr Groarke's commencement, and to the evidence that no substantive difference could be discerned between the work that Dr Groarke was tasked with and the plaintiff's role at the CSIRO in the years leading up to his secondment.
3. The plaintiff referred to work being available in the Photo Induced Processes area in 2008 and 2009 that was suitable for him, and to his evidence that at the time of Dr Osvath's email dated 29 May 2008, Drs Watkins and Brown were working on the development of organic photovoltaic solar cells and LEDs. The plaintiff's evidence that four scientists were recruited to undertake work in relation to organic solar cells and LEDs in the period between July 2008 and April 2009 was mentioned.
4. Another submission was that the plaintiff had developed a future role for himself at the CET Division in consultation with Dr Carras. His role awaited formalisation via the SIP process due to occur in July 2009, but the plaintiff was not permitted to utilise his existing leave entitlements in order to allow him to take up such a position in the middle of 2009.

Matters of Evidence

1. In para 29(a) of the further ASOC and in the plaintiff's first witness statement, he identified scientists from the CSIRO that conducted research that was claimed to be comparable, or substantially comparable, to that of the plaintiff's work. He stated (Ex D, 133): "a. Dr Birendra Singh, who commenced employment as a Research Scientist (CSOF 5) on 12 November 2008. Annexed and marked GS87 is a copy of the Document of Appointment for Dr Singh in which his key duty was stated to be "In collaboration with team members to design, implement and conduct research in the fabrication of organic field effect transistors, organic light emitting diodes and organic solar cells, to test the efficacy of new change transport and emissive materials for plastic electronics. b. Dr Giovanni Fanchini, commenced employment as a Research Scientist (CSOF 5) on 26 November 2008. Annexed and marked GS88 is a copy of the Document of Appointment for Dr Fanchini in which his key duty was stated to be: "In collaboration with team members to design, implement and conduct research in the fabrication of organic solar cells, organic light emitting diodes and organic field effect transistors to test the efficacy of new charge transport and emissive materials for plastic electronics." c. Dr Christopher Dunn, commenced employment as a Research Scientist (CSOF 5) on 10 March 2009. Annexed and marked GS89 is a copy of the Document of Appointment for Dr Dunn in which his key duty was stated to be: "In collaboration with team members to design, implement and conduct research in the fabrication of organic field effect transistors, organic light emitting diodes and organic solar cells to test the efficacy of new change transport and emissive materials for plastic electronics". d. Dr Juo Hai Li, who accepted employment as a Scientist (CSOF 4) on 20 April 2009. Annexed and marked GS90 is a copy of the Document of Appointment for Dr Li in which his key duty was stated to be: "In collaboration with team members to design, implement and conduct research in the fabrication of organic light emitting diodes to test the efficacy of new charge transport and emissive materials for organic light emitting diodes."
2. The plaintiff explained that he believed he was qualified and capable of performing the work of the four scientists referred to above. In addition to this, the plaintiff identified two other people, Dr Groarke and Mr Peter Gray, who he considered to work specifically in his field of training and speciality. He stated (Ex D, 135): "a. Dr Michelle Groarke, commenced employment at CSIRO Molecular and Health Technologies on 19 January 2009. While she was formally appointed as an organic chemist, her duties encompassed synthesizing metal-based luminescent metal complexes and their precursors which falls precisely within the field of Organometallic chemistry in which I was trained and in which I had worked for many years, including in the Security Devices research group. Annexed and marked GS91 is a copy of Dr Groarke's case for Merit Promotion, dated 13 October 2010 and signed by both her and her supervisor, in which her role is described. This document states (in the second bullet point of the "Case Summary"): "Dr Groarke's role was the challenging task of developing new blue phosphorescent iridium materials…". Further in the same document, it states (in the seventh line of the section entitled "Case Detail"): "This was a completely new area of research for Dr Groarke and involved a steep learning curve. Dr Groarke's key accountabilities lay in the development of new iridium organometallic materials for use as blue phosphorescent dopants in OLED's". b. Mr Peter Gray, who commenced employment as a Research Projects Officer (CSOF 3) in synthetic inorganic chemistry on 10 November 2009. Annexed and marked GS92 is a copy of the "Approval to Appoint" document for Mr Gray. In section 9 of its Appendix A, the document states that the position requires skills in the "physical and organometallic area".

Consideration

1. Clause 4.2(b)(iii) of the Document of Appointment provides: "4.2 Your appointment may be terminated: … (b) by CSIRO in the event of - … (iii) your becoming excess to CSIRO's staffing requirements."
2. The plaintiff's argument was that he would only be considered "excess to CSIRO's staffing requirements" if there was no available work for the plaintiff to undertake. In considering the construction of cl 4.2(b)(iii), the plaintiff referred the judgment in Pykett of the Full Bench of the Fair Work Commission where the Full Bench said at [36]: "…For the purposes of s 389(2) the Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer's enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee."
3. The Full Bench was considering s 389(2) of the Fair Work Act 2009 (Cth) and not a term of an employment agreement, such as that found in cl 4.2(b)(iii). In any event, the citation of Pykett [it] is helpful at least to the extent of comprehending the plaintiff's argument. As I understand the submission, available work for a CSOF scientist with the plaintiff's learning and experience would not mean available work as a cleaner or in another menial role, but must be work that was not only available, but reasonable in all the circumstances for the plaintiff to be redeployed in.
4. The following Table discloses the employment details of the CSIRO scientists, who were identified in para 29(a) of the further ASOC: Date of Offer Date of Acceptance Who Classification Pay Offered CSIRO Docs Tab 26 May 2008 10 July 2008 Dr Giovani Fanchini CSOF5 $xx,xxx to $xx,xxx V8, T109 8 July 2008 16 July 2008 Dr Birendra Singh CSOF5 $xx,xxx to $xx,xxx V8, T128 31 July 2008 10 August 2008 Dr Michelle Groarke CSOF5 $xx,xxx to $xx,xxx V8, T133 9 October 2008 13 October 2008 Dr Christoph-er Dunn CSOF5 $xx,xxx to $xx,xxx V9, T140 28 October 2008 23 October 2008 Peter Gray CSOF3 $xx,xxx to $xx,xxx V9, T141 20 April 2009 21 April 2009 Dr Juo Hao Li CSOF4 $xx,xxx to $xx,xxx V10, T192

1. I note that Dr Groarke did not commence her employment with the CSIRO until January 2009.
2. With the exception of Dr Juo Hao Li, the positions were offered and accepted prior to the determination in December 2008 that the plaintiff was likely to become excess to the CMHT's requirements. Whilst I accept that the plaintiff was qualified and capable of performing the work of each of the scientists detailed in the Table, all of the positions were at a classification that was much lower than the plaintiff's position of CSOF7. The highest classification offered (four positions) was at CSOF5.
3. As Mr Black explained, an appointment at CSOF5 was "quite different" to an appointment at CSOF7. There was, he said, approximately $40,000 to $50,000 difference in remuneration, and approximately 8 to 10 years in terms of experience as a scientist. At the time of termination, the plaintiff's gross salary was $121,485, whereas the highest salary for the advertised CSOF5 positions was $81,429. Dr Groarke was paid $81,000.
4. Dr Li's appointment was at CSOF4 and Mr Gray at CSOF3. These appointment grades were far below a CSOF7. The highest salary for the advertised CSOF4 position was $76,195 and $61,681 for CSOF3 position.
5. The plaintiff did not apply for any of the positions that were advertised prior to his termination, which is hardly surprising as his qualifications well exceeded those that were required for these roles.
6. It is convenient to mention the position of Dr Cook. The plaintiff pleads in para 27 of the further ASOC: "Following the formal advice to the Plaintiff that he was to be made redundant, and prior to the redundancy having effect, the Defendant offered Vernon Cook employment in the Plaintiff's role. Dr Cook accepted the position and commenced work on 13 February 2009."
7. The pleading is inaccurate and inconsistent with the evidence. Dr Cook commenced employment with the CSIRO on 15 January 2007 on a fixed term contract as a CSOF5 officer in the position of Research Scientist Inorganic Synthetic Chemist in the Transformational Products through Electromagnetic Theme. His position was extended for one month, from 15 January 2009 to 14 February 2009, in the position of Research Scientist, Photo Induced Processes. The contract term was extended from 16 February 2009 for one year, and expired on 16 February 2010. Dr Cook has not worked for the defendant since that time.

Conclusion

1. The plaintiff has not established on the balance of probabilities that the decision to terminate his employment contract was exercised in bad faith and was not genuinely made. Furthermore, the plaintiff has not established that he had not become excess to the CSIRO's staffing requirements.
2. I am not satisfied that by reason of the failure to develop a position for the plaintiff upon his return from secondment, the defendant breached the plaintiff's employment contract or converted employment contract (further ASOC 29A).
3. I am not satisfied that the defendant's termination of the employment contract or converted employment contract constituted a breach or repudiation of the plaintiff's employment contract or converted employment contract (further ASOC 30, 31).
4. Accordingly, the plaintiff's claim fails.

Damages

1. Although the plaintiff has not been successful in the present proceedings, the court is obliged to assess damages. Unfortunately, the delivery of the present judgment has been delayed by almost two months due to my recent illness. Being guided by the overriding purpose of s 56 of the Civil Procedure Act 2005 (NSW), I have decided to deliver this judgment on liability. A judgment assessing damages will be delivered in due course.

Orders

1. I make the following order: Verdict and judgment for the Commonwealth Scientific and Industrial Research Organisation, the defendant, against Gerhard Frederick Swiegers, the plaintiff.
2. I make the following directions as to costs.
3. Costs normally follow the event.
4. Any submissions as to costs are to be filed and served as follows: i. Plaintiff is to file and serve any written submissions as to costs on or before 18 January 2016. ii. Defendant is to file and serve any written submissions as to costs on or before 25 January 2016. iii. Any response by the plaintiff is to be filed and served on or before 29 January 2016. iv. Submissions are to be filed by emailing them to Ms Lisa Freeman, my associate. v. The parties are to notify the court if, in addition to the written submissions as to costs, oral argument is required on or before 2 February 2016.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 December 2015