Arguments concerning the parties' pleaded cases
129 During the hearing of the first appeal, an issue arose as to whether the Union parties had advanced a case below to the effect that the Court had to decide for itself whether conduct that formed the basis for the first warning, the final warning or the termination amounted to "misconduct" or "serious misconduct". Counsel for the University parties put in oral submissions that such a case had never been run (see the extracts set out at [121]). Further written submissions acknowledged that, before the primary judge, the Union parties had identified the task of the Court as "determining whether the relevant conduct of Dr Anderson was an exercise of the right of intellectual freedom", but also observed that they had put that:
… it was for Dr Anderson to determine whether he was exercising his right of intellectual freedom and how he would exercise that right, subject only to the in-built limitations of cl 315 (see, for example, T 299/8 to 25; 287/46 to 288/4, 14/13 to 19).
130 Hence it was submitted that, in their case at first instance, the Union parties had contended that "it was for Dr Anderson and not the Court to determine if his conduct constituted the exercise of a right of intellectual freedom" (at [123]). According to the Union parties, however, this was a "travesty" of the case they had put below (at [135]). Not surprisingly, that submission was accepted (at [136]-[139], [142]-[143]): as a proposition concerning the operation of cl 384, the position attributed to the Union parties makes no sense. The problem, in their Honours' view, was not that the Union parties' position had changed but that it had been inadequately explained to the primary judge (at [140]). Hence (at [141]):
The primary judge appears to have assumed that his rejection of the appellants' case based on cl 384 necessarily meant that their separate cases must fail on the same basis. This was not so as those cases depended not on the state of satisfaction of the University's delegate (which the appellants did not challenge), but the objective fact of whether the conduct was or was not the exercise of the right of intellectual freedom and the objective fact of whether the fourth comments and the fifth and sixth [sic] comments were, respectively, misconduct or serious misconduct.
131 The University also submitted that the Union parties were putting a new case about the role of cl 317. It was put that the Union parties had not placed any reliance on cl 317 before the primary judge, while the University parties had "always accepted that cl 317 has work to do". Their Honours did not accept these propositions. They said (at [128]-[129]):
The fact that the University now accepts that cl 317 is capable of being contravened exposes the aridity of the debate before the primary judge about whether cl 315, in and of itself, involves an enforceable right which could only be exercised in accordance with cl 317 or involves a mere commitment. Clause 315 could never be construed in isolation. It always had to be construed in context, including cll 316 and 317. Under these provisions, intellectual freedom is a right, a duty and an aspiration. The relevant rights are in cl 315, as the appellants submitted to the primary judge. But they are rights qualified by and subject to the co-extensive rights and duties in cll 316 and 317. This is why, as a matter of forensic logic, the appellants having pleaded exercise of the right in accordance with cl 315, it was for the respondents to plead that any such exercise had to being [sic] accordance with cl 317. The respondents did not so plead, but did put this to the primary judge.
Further, the summary of the respondents' own case before the primary judge set out in the paragraph above … also exposes the inaccuracy of the University's submissions about the appellants' case in the appeal.
132 Commencing at [144], their Honours traced the parties' positions on the relationship between cll 315 and 317.
133 The written opening submissions before the primary judge were summarised as follows (at [152]-[153]).
In their opening written submissions filed in advance of the hearing before the primary judge the appellants submitted as follows:
(1) clauses 315-317 of the 2018 agreement appear under the heading "Intellectual Freedom";
(2) on its proper construction, cl 315 of the 2018 agreement creates enforceable rights;
(3) read in the context of the 2018 agreement as a whole, it is seen that, amongst other things, cl 315 creates an enforceable right and "cl 317 … regulates the manner in which the right is to be exercised";
(4) the 2018 agreement operates such that conduct that constitutes the exercise of intellectual freedom cannot constitute misconduct or serious misconduct within the meaning of cl 3 of the 2018 agreement; and
(5) the impugned conduct of Dr Anderson constituted the exercise of intellectual freedom in accordance with cl 315 of the 2018 agreement.
In their opening written submissions filed in advance of the hearing before the primary judge the respondents submitted:
(1) clause 315 of the 2018 agreement is not capable of being contravened and reflects aspirational statements; and
(2) if cl 315 of the 2018 agreement conferred any right of intellectual freedom capable of being contravened (which is denied) then it does not mean that conduct constituting the exercise of that right cannot also be misconduct or serious misconduct because:
(a) staff of the University are expressly required in the agreements to comply with the Code of Conduct (cl 306 of the 2018 agreement and cl 256 of the 2013 agreement); and
(b) "[clause] 317 recognises that the parties will uphold the principle and practice of intellectual freedom in accordance with the highest ethical, professional and legal standards". Further:
Those professional standards that apply to staff of the University (and with which staff are required to comply) include the Code [of Conduct]. The essence of the [appellants'] contentions is that the so-called right to "intellectual freedom" is only constrained by the obligation "not [to] engage in harassment, vilification or intimidation". This contention ignores cl 317, which is reinforced by cl 306 (as to the Code [of Conduct]);
(Emphasis added.)
134 Thus their Honours concluded that (at [154]-[155]):
… while the appellants contended that cl 315 was the source of the relevant right, they accepted that the manner in which that right could be exercised was subject to cl 317. The appellants also thus must be taken to have maintained that Dr Anderson's conduct involved an exercise of the right in cl 315 in a manner which accorded with the requirements of cl 317. Otherwise, the appellants could not have maintained, as they did, that Dr Anderson's conduct was authorised by cl 315.
It is also apparent that the respondents denied that cl 315 involved an enforceable right of intellectual freedom but said, in the alternative, that if it did then the right was subject to both the Code of Conduct and cl 317. The respondents maintained that Dr Anderson's conduct, if it involved an exercise of an enforceable right under cl 315, which the respondents denied, was not an exercise of the right which accorded with the Code of Conduct or cl 317.
135 Similar positions were taken in the parties' closing submissions before the primary judge, which their Honours summarised in detail at [163]-[170].
136 Their Honours drew six points from this narrative (at [176]-[181]).
(a) The Union parties had focused on cl 315 but also accepted that the right it conferred was subject to the limitations in cl 317.
(b) The Union parties consistently maintained that it was necessary for the Court itself to determine whether Dr Anderson's conduct amounted to exercises of the right to intellectual freedom in accordance with cll 315-317.
(c) The University parties' primary case was that cl 315, construed in context, did not give rise to any enforceable rights. Their alternative case was that, if it did so, that right was qualified by limitations in cll 315 and 317, as well as the Code of Conduct and other University policies.
(d) The Union parties never put to the primary judge that it was for Dr Anderson to determine what he could or could not do.
(e) The University parties never objected to the Union parties contending before the primary judge that "clauses 315 to 317 confer an enforceable right on persons", that "conduct that is authorised by clauses 315 to 317, cannot constitute misconduct … or serious misconduct", or that the relevant legal framework was set by cll 315-317.
It may be inferred that the respondents did not do so because their own primary position before the primary judge was that cl 315 and/or cll 315 and 317 are not capable of being contravened as they involve no enforceable right and, in the alternative, that if there was any such right granted then cl 315 could not be considered in isolation from cl 317 and the Code of Conduct. In other words, on both of the respondents' cases, cl 317 was in play.
(f) The Union parties never pleaded or submitted to the primary judge that the University had contravened cl 317. They only alleged contraventions of cll 315 and 384.
137 In substance, therefore, cl 317 was in issue before the primary judge. His Honour's recourse to the pleadings to identify the matters in issue was "understandable but involved error" (at [182]). Further (at [183]):
In the circumstances of the present case nothing precluded the appellants from putting to the primary judge, as they in fact did, that Dr Anderson was exercising a right of intellectual freedom granted by cl 315 and in accordance with that clause and cl 317. This is because, the appellants having asserted the conduct was the exercise of the right in accordance with cl 315, forensic logic required the respondents to raise cl 317, which they did. The appellants were then permitted to assert, in response, that the conduct complied with cl 317, which they did.
138 Their Honours then came to the issue which had been central to the primary judge's reasoning, and said (at [187]-[190]):
The primary judge's construction of cll 315-317 also involved error. The provisions relating to intellectual freedom, cll 315-317 of the 2018 agreement (and cll 254-256 of the 2013 agreement), must be construed together. The statement of the commitment of the parties in cl 315 to protect and promote intellectual freedom is expressed as including specified "rights". Those specified include the right to engage in public debate (cl 315(a)). The rights include the right to express opinions about the operation of the University (cl 315(b)(ii)) and to express unpopular or controversial views, provided that in doing so they must not engage in harassment, vilification or intimidation (cl 315(b)(iv)). Clause 315 thus does involve a conferral of rights, contrary to the conclusions of the primary judge and the arguments of the University.
It is also the case, however, that those rights cannot be separated from the terms of cll 316 and 317. By cl 316 the parties "will" encourage and support transparency in the pursuit of intellectual freedom within its (that is, the University's) governing and administrative bodies. The intellectual freedom the subject of cl 316 is the intellectual freedom identified in cl 315. By cl 317 the parties "will" uphold the principle and practice of intellectual freedom in accordance with the highest ethical, professional and legal standards. Again, the intellectual freedom in cl 317 is the intellectual freedom in cl 315. Clauses 315-317 thus embody an integrated and inter-related scheme of enforceable mutual rights and duties, as well as aspirations. The clauses are not merely aspirational and incapable of contravention as the respondents contended below in their primary case.
The fact that minds may reasonably differ about what might constitute "harassment, vilification or intimidation" in cl 315(b)(iv) or upholding the "the principle and practice of intellectual freedom in accordance with the highest ethical, professional and legal standards" in cl 317 does not make the provisions mere exhortations or aspirations. Nor does the fact that the scope of the commitment to intellectual freedom is not precisely defined as the specified rights are merely included within and are not exhaustive of the concept of intellectual freedom. Contrary to the University's submissions, exhaustive definition is not required to make the provisions capable of enforcement.
The University's suggestion that cl 315 does not authorise the exercise of the rights nominated is untenable. The concept of the exercise of the rights is inherent within the actions authorised as specified in cl 315(a)-(b)(i)-(iv). It is also inherent within the commitment to the protection and promotion of intellectual freedom in the preamble to cl 315.
139 In dealing with other submissions concerning the alleged changes in the Union parties' case, their Honours made several points including the following (at [197]-[203]).
The appellants continue to accept (as they expressly did below) part of the alternative argument that the respondents put - that if cl 315 does include a right of intellectual freedom it is a right that is necessarily subject to the terms of cl 317. In putting that alternative argument below the respondents did not suggest to the primary judge that: (a) the appellants could not succeed because they had not pleaded that Dr Anderson had exercised intellectual freedom in accordance with the highest ethical, professional and legal standards as required by cl 317, (b) the appellants could not succeed because they had not adduced evidence that Dr Anderson had exercised intellectual freedom in accordance with the highest ethical, professional and legal standards to satisfy cl 317, or (c) the respondents had been denied the opportunity to call evidence that Dr Anderson had not exercised intellectual freedom in accordance with the highest ethical, professional and legal standards as required by cl 317. This is so despite the fact that in their primary and alternative case the respondents expressly relied on cl 317 to defeat the appellants' claims.
Second, given the way in which the case was run by both parties before the primary judge (as explained above), it is not the case that in order to succeed the appellants were required to plead that Dr Anderson had exercised intellectual freedom in accordance with the highest ethical, professional and legal standards. The appellants were entitled to do what they did - plead an exercise of the right in accordance with cl 315 and leave it to the University to rely on cl 317, which the University did. The appellants were also entitled also to allege (as they did), in response to the University's case, that the exercise of the rights did in fact satisfy cl 317.
Third, the appellants put before the primary judge the evidence on which they wished to rely to support the claim that Dr Anderson had been exercising the right of intellectual freedom in accordance with cll 315 and 317 (and the equivalent provisions of the 2013 agreement). The appellants do not suggest otherwise. This is hardly surprising given that, as discussed, both parties relied on cl 317 in the hearing before the primary judge. If the appellants' evidence is inadequate, then so be it.
Fourth, it is correct that cl 317, having been raised below by both parties, required the primary judge to examine all circumstances relevant to each and every claimed exercise of the right of intellectual freedom.
Fifth, it cannot be the case that the University (or other respondents) could and would have led other evidence about the context and manner in which Dr Anderson had purportedly exercised his right of intellectual freedom. The University's submissions that there was no evidence about these matters is wrong.
…
It also necessarily follows that there was (and is) no further evidence the University could adduce relevant to the alleged breaches of cll 315 and 384(d)(iii) of the 2018 agreement. This is because the appellants are either right or wrong about this as well as all other aspects of their case.