Swiegers v Commonwealth Scientific and Industrial Research Organisation

District Court of NSW|2016-02-08|Before: As Hayne J, Ward JA, Rep P, Price J

Solicitors: Colquhoun Murphy Lawyers (Plaintiff) Norton Rose Fulbright (Defendant) File Number(s): 2013/137442

Judgment

His Honour: Although the plaintiff was not successful in Swiegers v Commonwealth Scientific and Industrial Research Organisation [2015] NSWDC 298 ('Swiegers (No 1)'), the court is obliged to assess damages: Wolfenden v International Theme Park Pty Ltd (t/as Wonderland) [2008] NSWCA 78 at [6]. The onus is on the plaintiff to establish his loss on the balance of probabilities. An assessment of damages in this case (if the plaintiff had succeeded for wrongful termination of his employment contract with the Commonwealth Scientific and Industrial Research Organisation ('CSIRO')) involves an attempt to place him in the same position he would have been had the contract been properly performed. As Hayne J observed in Clark v Macourt [2013] HCA 56; (2013) 253 CLR 1 at [10], the proper measure of loss is "the loss of the value of what the promisee would have received if the promise had been performed."
The breach of contract occurred (if the plaintiff had succeeded) when he was dismissed on 23 February 2009.

Argument

The plaintiff accepted that he substantially mitigated his past loss of income by obtaining alternative employment with DataDot Technology Australia Pty Ltd ('DataDot'), the University of Wollongong ('UOW') and AquaHydrex Pty Ltd ('AquaHydrex'). The following Table was said in written submissions to demonstrate a past loss of $1,105.00 (PWS 206): Period Gross Salary if at CSIRO Actual Gross Salary Difference 24 February 2009 to 30 June 2009 $42,270.00 $31,315.00 $10,955 1 July 2009 to 30 June 2010 $124,948.00 $105,070.00 $19,878 1 July 2010 to June 2011 $127,681.00 $148,911.00 $21,230 gain 1 July 2011 to 30 June 2012 $132,150.00 $130,736.00 $1,414 1 July 2012 to 30 June 2013 $136,775.00 $97,336.00 $39,439 1 July 2013 to 30 June 2014 $141,562.00 $159,348.00 $17,786 gain 1 July 2014 to 30 June 2015 $146,517.00 $178,082.00 $31,565 gain Total loss $851,903.00 $850,798.00 $1,105.00

However, the plaintiff's counsel told the court during the hearing that there was no claim for past economic loss (T173, 22). This was consistent with the letter of particulars from the plaintiff's solicitors dated 21 March 2014. The plaintiff had received from the CSIRO a redundancy and early cessation payment totalling $69,475.44 (Swiegers No 1 at [43]). Accordingly, I do not make an award for loss in the past.

Argument

The plaintiff submitted that he suffered substantial future loss as a result of the termination of his employment. He argued that damages available for loss of future earnings should be calculated on the basis of the remuneration the plaintiff would have earned if he had continued employment with the defendant to retirement at age 65.
The plaintiff accepted that an assessment of the likely course of his employment was not without difficulty. It was his evidence that he was working full-time for AquaHydrex (on leave without pay from the UOW) until 1 July 2015 and thereafter he would return to the UOW. The plaintiff said that he was confident he would continue full-time at the UOW until the end of 2015. Thereafter, he has a contract for 50 per cent employment until February 2021 and no employment thereafter (Ex G, 17-19).
If that scenario eventuates, the plaintiff claims that he will incur very significant economic loss compared to having continued employment with the CSIRO to age 65. Whilst he accepts there is some chance he may be able to obtain greater employment, the plaintiff submits that there is no guarantee at all in relation to the continuation of any opportunity for full-time employment beyond the end of 2015. Matters that the court was referred to included: 1. The plaintiff's employment with the UOW is only guaranteed at half-time and any capacity to increase to full-time is dependent upon raising external funding for himself on a one-year at a time basis; 2. The nature of start-up ventures seeking to commercialise is that they are inherently risky and uncertain; 3. The plaintiff regards it as unlikely that his role would continue after the completion of his current contract due to the risky and uncertain nature of the enterprise; and 4. As to his work with AquaHydrex, the plaintiff says that he will not have a role with the project after the research and development phase is complete.
The plaintiff accepts that, more likely than not, he will obtain a somewhat higher level than 50 per cent employment to 2021, but no employment thereafter. However, the plaintiff argued it is unlikely that he would be successful in continuing full-time employment to the age of 65 with the UOW. The plaintiff detailed the losses that would be experienced by him if he obtains 50 per cent and 75 per cent employment to age 65 in the following Table (PWS 212): CSIRO UOW Year Gross Salary Year 100% 50% 75% 2014 $141,562.00 2014 $159,348.00 $79,674.00 $119,511.00 2015 $146,516.67 3.5% - 2015 $164,925.18 $82,462.59 $123,693.89 2016 $151,644.75 2016 - 3.5% $170,697.56 $85,348.78 $128,023.17 2017 $156,952.31 2017 - 3.5% $176,671.97 $88,335.98 $132,503.98 2018 $162,445.64 2018 - 3.5% $182,855.48 $91,427.74 $137,141.61 2019 $168,131.23 2019 - 3.5% $189,255.42 $94,627.71 $141,941.57 2020 $174,015.82 2020 - 3.5% $195,879.35 $97,939.67 $146,909.52 2021 $180,106.37 2021 - 3.5% $202,735.12 $101,367.56 $152,051.34 total $1,281,374.79 totals: $1,283,020.08 $721,184.03 $1,081,776.08 difference: $1,645.30 $560,190.70 $199,598.80 salary reduced by 3% discount 0.837 discount multiplier applied to 50% employment scenario = $468,879.61 0.837 discount multiplier applied to 75% employment scenario= $167,064.19 15% vicissitudes of life reduction 15% reduction applied to 50% employment scenario = $398,547.67 15% reduction applied to the 75% employment scenario = $142,004.57

On the plaintiff's case, if one were to assume employment at 50 per cent of the UOW salary to age 65, his loss of earnings would be $398,547.67 and at 75 per cent of the UOW salary to age 65, then his loss of earnings would be $142,004.57 (incorporating discounts taking account of present value of future earnings and for vicissitudes). The plaintiff submitted "that either of these scenarios provides a reasonable and appropriate assessment" (PWS 213).
In addition to loss of earnings, the plaintiff claims that he will suffer significant reductions of his superannuation entitlements as a consequence of the termination of his employment with the CSIRO. Extensive submissions were received from the parties on this issue.
Another argument was that the plaintiff was not under a duty to mitigate loss until his employment came to an end on 23 February 2009. Scott v Commonwealth (1982) 41 ALR 498 was cited. The plaintiff contended that conduct prior to this date cannot be relied upon by the defendant to demonstrate a failure to mitigate.
The defendant argued that the plaintiff's claim for future loss of wages and loss of superannuation entitlements hinged on two unlikely assumptions. First, that but for the plaintiff's redundancy, he would have stayed at the CSIRO until age 65. Secondly, upon expiration of his contract with the UOW in 2021, the plaintiff would have never worked again. The defendant submitted that both of these assumptions are "entirely against the overwhelming weight of the evidence" (DWS 526). The defendant contended that it is most likely that the plaintiff would otherwise have: 1. Resigned from the CSIRO of his own accord within twelve months in order to take up a role with DataDot and/or the UOW; 2. Been retrenched in a later round of redundancies; or 3. Terminated for misconduct.
The defendant submitted that the above would have occurred at some point between 23 February 2009 and the intervening six years to the date of the trial (and most likely within one to two years of 23 February 2009).
Furthermore, it was put to the court that the plaintiff is not entitled to damages because he failed to mitigate any loss by: 1. Refusing to apply for positions at the CSIRO from December 2008 to February 2009. In particular, the Theme Leader role that the defendant encouraged him to apply for in December 2008; 2. The plaintiff was offered full-time, ongoing employment at the UOW in January 2010 at a salary of $135,441.00 together with superannuation contributions of 17 per cent of the proposed salary. The plaintiff converted to part-time (50 per cent fraction), fixed-term employment by choice; 3. The plaintiff failed to invest the monies he received from the CSIRO on the cessation of his employment into an appropriate superannuation fund; and 4. The plaintiff failed to increase the level of his superannuation contributions from the additional salary he is earning at the UOW and AquaHydrex, so as to eliminate (or at least minimise) any adverse consequences that may result by the plaintiff ceasing to be a contributing member of the Public Sector Superannuation ('PSS') Scheme.
The defendant submitted the real reason the plaintiff did not apply for the Theme Leader role is revealed in the email he sent to Dr Coia on 9 December 2008. The defendant pointed out that, in that email, the plaintiff stated: "I do not forsee (sic) that I will apply for any sort of new position within CSIRO at this stage" (Ex 23, V9, T154). The defendant argued that the weight of this evidence demonstrates that the plaintiff was "jaded" with the CSIRO and its management, and was focused on potential opportunities at DataDot.
As to the Theme Leader role, the plaintiff reminded the court that he was not offered the position and this was not a case where he refused an offer of employment. The plaintiff referred to the constitution of the selection panel and to his belief that any application by him would not be fairly considered. The plaintiff argued that he had not acted unreasonably in not applying for the position.
The plaintiff pointed out that he was initially offered a five year full-time appointment with the UOW; however, his family were reluctant to move from Melbourne for this period. Moreover, the plaintiff explained that he already had half-time employment with DataDot. As a result of this, the plaintiff counter-proposed a 10 year position at half-time (he believed this offered him greater security of engagement) which was accepted by the UOW. The plaintiff submitted that the contention made by the defendant in 18 above, misinterprets the plaintiff's interactions with the UOW (the plaintiff explained that he has a contract for 50 per cent until 2021 and no employment thereafter) and could not constitute an unreasonable failure to mitigate.

Would the plaintiff have remained with the CSIRO?

A critical issue on the question of damages is whether the plaintiff would have remained with the CSIRO but for his termination. It is the plaintiff's case that his employment with the CSIRO would have continued to age 65. The defendant, however, argues that it is highly likely that he would have resigned of his own accord to join DataDot and/or the UOW or he would have been retrenched.
The plaintiff's evidence was that "[he] wanted to absolutely to stay at CSIRO if [he] could have" (T109, 6-7).
The credibility of the plaintiff's testimony that he wished to remain with the defendant was undermined by the lack of interest he displayed in applying for the other positions within the CSIRO after he met with Dr Coia on 8 December 2008, and received Mr Black's email of 16 December 2008.
In Swiegers (No 1), I said at [395]-[396]: "I do not accept that the plaintiff told Mr Black that he was prepared to do any job for which he was qualified. Such a conversation does not stand happily with his email on the same day to Mr Black requesting the "early cessation" option with a termination date of 8 February 2009. Furthermore, the sense of desperation that might be inferred from a highly qualified and experienced CSOF 7M scientist being prepared to accept employment at lower CSOF levels is inconsistent with the lack of urgency previously displayed by the plaintiff in seeking another position within the CSIRO and his decision not to apply for the Theme Leader position. Notwithstanding the advice that he had received in December 2008 about the lack of a future role in CMHT and the requests that month by Dr Coia and Mr Black for his curriculum vitae, this document was not sent to Mr Black until 28 January 2009. The plaintiff had been on holidays for five weeks and made little effort (if any) to access the "Redeploy" CSIRO intranet database site which set out all available job vacancies in the CSIRO. The Theme Leader position had a substantive classification of CSOF8. The plaintiff explained that he did not look into this opportunity as some of the people on the selection panel would be Whistleblower respondents. The plaintiff's failure to make an enquiry as to the constitution of the selection panel indicates a lack of commitment in remaining within the CSIRO. His belief that continuing to work co-operatively on a daily basis with Whistleblower respondents would be very difficult for him appears to have impacted upon his desire to continue his employment with the defendant."
The plaintiff's focus on obtaining employment outside the CSIRO is reflected in the following emails (Ex 23, V9, T154; Ex 23, V9, T160 and T161): "Hi Greg I will reiterate what I said at the meeting. You asked what I intend to do upon the conclusion of my secondment? I said that my intention at this point in time was to return to CSIRO and take a substantial period of leave. I anticipated that the leave would be up to one year and involve a mixture of recreation and long-service leave at half pay. I did not wish to discuss my reasons for taking leave, however I intend to re-evaluate my involvement with CSIRO during the leave period. As such, I do not forsee that I will apply for any sort of new position with CSIRO at this stage. (Incidentally: I have been informally told that I am due to return from secondment on 24 January 2009 but I have yet to receive formal notification or, indeed, any sort of formal correspondence in this respect…). I further alerted you to the fact that the situation at Datatrace was in flux and that there was a possibility of the company being taken over by an English company. This could affect my situation. Any changes in this respect would, however, likely only occur after my return to CSIRO. This raised the question of what would happen if I went on long-service leave and the new owners of Datatrace then requested that I consult for them on, for example, a half-time basis? Could such a request be accommodated and, if so, how? I would be grateful if you would enquire as to CSIRO's position in this respect. The only other possible variant that I could envisage at this stage is that, after having taken leave, I may physically return to CSIRO in July-August 2009 with the intention of moving to the Division of Energy Technology in order to take up a project there. That scenario would be dependent on a number of factors, including my willingness to undertake such a project with CSIRO. I am, nevertheless, alerting you to this possibility. Regards Gerry Swiegers" "Dear Paul … As you may be aware, on Tue, Jan 27, my secondment to Datatrace ends. This means that I must either return to CSIRO on that date or resign from CSIRO to stay on with Datatrace. As you are probably also aware, there is a possible deal in the works in which the English company, IDT, is proposing to take over Datatrace and establish it as a "NewCo" ("Datatrace 2"). I was hoping that, by this point in time, the deal would be sufficiently developed that I could make an informed choice as to my future employment. My plan was to resign from CSIRO and stay on with Datatrace if the IDT deal was done (or was close to being done). If, however, the IDT deal fell through, or looked like it would fall through, then I intended to return to CSIRO. In my discussions with the various parties, it appears to me that the deal is not yet sufficiently advanced to be able to say whether it will go through or not. For this reason, I was intending to return to CSIRO next week. This was also the recommendation of Datadot management. However, it has now become apparent that my returning to CSIRO will potentially affect the continuity of the Datatrace business. For example, Orica have, yesterday, funded a project with Datatrace that would require some significant involvement on my part. If I were unable to contribute because I had returned to CSIRO, then this would potentially damage Datatrace and diminish the value of the company in the negotiations with IDT. That would surely not be to anyone's benefit, including CSIROs. I therefore wondered whether there may be a temporary "middle-road" option in which I am able to continue my involvement with, and support of Datatrace, without severing ties with CSIRO, until such time as the status of the IDT deal becomes clearer? … With best wishes Gerry Swiegers"
Three days after his employment with the defendant ceased on 23 February 2009, the plaintiff obtained part-time employment at DataDot in the position of vice-president of strategic research at DataTrace and worked on technology that he had developed.
In November to December 2009, he was approached by Professor Gordon Wallace and asked to re-start the AquaHydrex technology. He was told "they needed [him] to come in on it…" (T135, 30).
The plaintiff's evidence on this topic includes the following (T136, 19-41): "Q. They wanted to work on technology that you had been intimately involved in developing? A. Yes. Q. And that was the Biomimetic Catalysis? A. Yes, correct. Q. And that had been a pet project of yours for years? A. I wouldn't call it a pet project. Q. Well, it was a project you had been working on for years? A. Yes. It started in 1998. Q. CSIRO had organised so that technology had a home to continue work, had organised for it to be transferred to the University of Wollongong, correct? A. There was one pattern that was transferred to the University of Wollongong. The rest of the patterns continued at the Energy Technology division. Q. And University of Wollongong was wanting you to work on this technology that you had developed over years? A. I think they wanted me to commercialise it; that's what they wanted me to do."
The plaintiff was offered a full-time position as a 'Professor' at the UOW with an annual salary of $135,441.00, a start date of 15 January 2010 and superannuation entitlements equivalent of 17 per cent of the plaintiff's salary (Ex 23, V10, T195B). However, the plaintiff had insisted on a 10 year position at half-time which was agreed to by the UOW. He was employed by the UOW in the position of 'Professor' with an annual pro-rata salary of $67,720.00, a start date of 8 February 2010 and superannuation entitlements equivalent of 17 per cent of his salary (Ex 23, V10, T195C).
On 9 March 2010, the plaintiff terminated his employment with DataDot. In an email entitled 'Message to the board', the plaintiff wrote to Mr Graham Loughlin (Ex 23, V10, T194): "I heard over the weekend that the new spin-off company which was planned for my hydrogen research at Wollongong University will now almost certainly go ahead from the first week of March 2012. I will need to join it" (italics added). The plaintiff was referring to AquaHydrex: see Swiegers (No 1) at [48]. Since the spin-off company was formed, the plaintiff has been employed by the UOW full-time.
The plaintiff's work history after his employment with the CSIRO was terminated, indicates how employable he is. I have no doubt that with his unfounded belief that there were those in the CSIRO who were maliciously acting together against him, he would, at the very least, have accepted the UOW offer in January 2010 to commercialise the Biomimetic Catalysis Technology.
The onus is on the plaintiff to prove his future loss. I am not satisfied on the balance of probabilities that he would have remained with the CSIRO beyond January 2010. It is unnecessary to consider the arguments as to mitigation.
There is another matter which presents a difficulty for the plaintiff in establishing that he would have remained with the CSIRO. Regrettably, Australia's national science agency has been subject to severe budget cuts.
In Swiegers (No 1), I wrote at [324]-[325]: "In Dr Simpson's first witness statement (Ex 27, 38-39) he stated: "On top of the strategic decision to close the MDI project as outlined above, there was significant cuts to the CSIRO's budget as a result of the Federal Budget announcements in May 2008. The significance of the impact arising from those budget cuts is highlighted in an email from Geoff Garrett, the then Chief CSIRO (sic) who sent an email to all CSIRO staff on 21 May 2008 (Tab 107), that stated, in part: So, with just a 0.75% increase to two-thirds of our funding next year and with our costs increasing with inflation at around 4%, as I indicated in my email of 14th May - with our salary bill close to 60% of our total expenses - it will not be possible to absorb this change without some job losses. Thus I would confirm that we still envisage a net reduction from CSIRO's current staffing level of 6350 over the next year of approximately 85 FTEs (Full Time Equivalents), in all probability around 100 staff. Over the next weeks we will engage in appropriate consultation through the relevant line managers with those staff potentially affected. (my emphasis)" Dr Simpson recounted that, based on his knowledge of the CSIRO, he had no reason to doubt the genuineness of the decision that the plaintiff was excess to the CSIRO's staffing requirements. Dr Simpson stated (Ex 27, 39): "Arising from the impact of those budget cuts, the appropriation funding allocation to the National Security Technology Partnerships Theme (SIP No. 1048) within CMHT was significantly reduced. This was the theme to which Dr Swiegers had been allocated prior to his secondment."
In Mr Edmund Rice's (Information Business Systems Analyst at the CSIRO) witness statement dated 6 March 2015 (Ex 39, 7, 14-15, 20-22), the following appears: "On 26 June 2008, CSIRO implemented a new Enterprise Resource Planning (ERP) system known as SAP, which stands for Systems Applications Products. CSIRO Redundancy Statistics On 5 March 2015 I logged on to my user account and interrogated SAP in order to extract the number of employees whose employment was terminated by reason of redundancy from CSIRO between the period 26 June 2008 to 30 June 2014: a. who were Research Scientists working in CSIRO's research science functional area (Research Scientists); and b. held a CSIRO Officer (CSOF) classifications or Clause 11 contract. A clause 11 contracted employee is a CSIRO employee who would otherwise be classified at CSOF Level 5.1 or above, but whom may possess skills or capabilities that are in high market demand, for which CSIRO offers supplementary remuneration for a specified period. For readability and ease of reference, I have summarised the Redundancy Data in a table below: Redundancies - Classification CSOF6 to CSOF9 and Clause 11 employees in Research Science functional area 2007/08 2008/09 2009/10 2010/11 2011/12 2012/13 2013/14 Total CSOF6 4 6 11 19 3 2 14 59 CSOF7 8 9 10 9 6 7 25 74 CSOF8 6 3 6 4 1 2 7 29 CSOF9 1 1 Cl 11 1 1 1 2 1 1 7 Total 19 19 28 34 11 12 47 170

In summary, this table depicts the total number of redundancies of Research Scientists with either a classification level of CSOF6 to CSOF9 or a Clause 11 contract, who worked in the Research Science functional area between 30 June 2007 and 30 June 2014. The figures shown in the table at paragraph 20 are headcount figures and do not reflect full time equivalent values. That is, the statistics show positions that have been made redundant which may include full time positions or part time positions."

The redundancy data discloses that the employment of 74 CSOF Level 7 Research Scientists with the CSIRO was terminated by reason of redundancy between 26 June 2008 to 30 June 2014. In my view, there was a real prospect that the plaintiff would have been made redundant between 23 February 2009 and 30 June 2014 if the breach of contract had not occurred.
As I am not satisfied that the plaintiff would have remained with the CSIRO beyond January 2010, the plaintiff has not established any future loss.
Accordingly, I do not make an award for loss in the future.

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: 08 February 2016

At a glance

Court

Decision date

Before

Source

Judgment (10 paragraphs)

Parties

Cases Cited (8)

Cited By (1)