Vision Australia Ltd v Elisha [2023] VSCA 265

CONTRACT - Breach - Respondent employed by applicant as adaptive technology consultant - Respondent alleged to have engaged in serious misconduct by reason of 'aggressive and intimidating' behaviour towards hotelier - Respondent stood down from employment and required to attend disciplinary meeting - Subsequent termination of employment - Alleged failure to give opportunity to deal with allegations about respondent's character - Due process provisions contained in enterprise agreement and applicant's disciplinary procedures - Whether parties objectively intended enterprise agreement and/or disciplinary procedures to form part of contract of employment - Whether relevant parts of disciplinary procedures intended to have contractual effect - Where judge held applicant breached contractual terms as incorporated - Judge's findings affected by impressions about witnesses - Whether judge's findings 'glaringly improbable' or 'contrary to compelling inferences' - No error established.

Vision Australia Ltd v Elisha [2023] VSCA 265 | Case summary | Zoe

[33]

The Vision Australia Disciplinary Procedure effective 'April 2015' is set out in full in Appendix 1 to these Reasons. Insofar as it deals with the procedural steps applicable in a formal disciplinary meeting it is substantially similar to clause 47.5 of the Vision EA, above.
As is self-evident, the stand down letter also did not suggest that Mr Elisha had conducted himself aggressively on any other occasions apart from during the 23 March incident.
Mr Elisha prepared a written response to the allegations as contained in the stand down letter in which he 'vigorously den[ied] any such misconduct' and stated that he 'never behaved in any verbally aggressive nor intimidating manner'.
A meeting then took place on 26 May 2015 at which Ms Eagle and Ms Hauser were present. David Nunns, a branch organiser of the Australian Services Union ('ASU'), also attended with Mr Elisha. Ms Eagle and Ms Hauser's typed file note records that at the close of the meeting Ms Eagle said that 'she would get back to [Mr Elisha and Mr Nunns] after speaking with [John Gow-Hills, General Manager of Vision's 'People and Culture' department]'. The note also records the observations of both Ms Hauser and Ms Eagle that Mr Elisha 'showed no remorse'.
On 26 May, Ms Eagle also provided documentation 'for meeting tomorrow' to Mr Gow‑Hills, Mr Garwood, Mr Van Dyk and Ms Hauser. That documentation included the file notes from the meeting of 26 May.
The evidence of Ms Eagle was that on 27 May, she made 'findings' concerning what happened during the 23 March incident. On that date, a further meeting also took place ('27 May meeting'). There are no file notes of the 27 May meeting, but the judge essentially accepted that each of Ms Eagle, Mr Van Dyk, Mr Gow-Hills, Ms Hauser and Mr Garwood attended the meeting (given they each gave evidence about it).[15] Ms Eagle's investigation findings were discussed and the attendees adopted her finding that Ms Trch's account of events should be accepted. The judge found that the decision to terminate was probably made by Mr Gow-Hills, which Vision accepted in this Court.
On 28 May, Ms Eagle received a letter from Mr Nunns concerning the meaning of 'serious misconduct' and which stated that the ASU would notify management of a dispute under the Vision EA if Mr Elisha was not returned to normal duties. Mr Nunns also sent a letter to Mr Van Dyk, dated 29 May, relating to representation at the meeting.
On 28 May, Ms Eagle forwarded the email attaching the ASU's letter to Mr Gow-Hills and Mr Van Dyk, suggesting they discuss it and asking 'does this change our proposed strategy?'.[16]
By email from Mr Gow-Hills to Mr Van Dyk at 7:43 am on 29 May, he referred to the ASU's letter and stated:

[63]

The judge then returned to the text of the 2006 Contract. He noted that the clause entitled 'Conditions of Employment' uses the word 'governed' in connection with the Award.[44] He considered that this might suggest that the Award was not specifically incorporated into the contract of employment.[45] However, the clause also refers to the engagement being 'governed' by the 'terms of the letter'.[46] In the judge's view, the terms of the letter are plainly proposed, and would be taken objectively, to have been contractual. He reasoned that it therefore follows that no special significance should be attached to the use of the word 'governed' as opposed to any other word that would signify that the engagement would be regulated by the terms stated in the letter as well as the applicable award.[47] He also considered that at least the pay and classification the subject of the then applicable award seem to have been contemplated as being contractual. It followed that, as in Gramotnev, the contract of employment seems to have contemplated that at least parts of the relevant award will be contractual.[48]
The judge next turned to the clause entitled 'Other Conditions'.[49] He highlighted the title of the clause and that it specifically referred to 'Employment Conditions'. He considered that, in context, the reference to 'Employment Conditions' in this clause would not reasonably be taken to refer only to the earlier clause titled 'Conditions of Employment'.[50]
The judge considered that the ordinary meaning of the words 'will be in accordance with' suggest that the employment relationship will be conducted in a manner that complies with the classes of rules there specified - being 'regulatory requirements' and 'Vision Australia Policies and Procedures'. He considered that the words 'in accordance with' are 'little or no different in ordinary meaning' to the words 'abide by' considered in Riverwood, or 'to be observed' considered in Romero. He observed that in Riverwood and Romero such words were considered to be capable of operating to incorporate specified documents if the relevant terms were 'contractual'.[51]
The judge further considered that the reference to 'regulatory requirements' should reasonably be read to embrace the classes of requirements earlier specified in the clauses of the 2006 Contract, including the 1999 Award. He considered that the promise in the 2006 Contract is that the conditions of engagement 'will be' regulated in accordance with such requirements and the parties might objectively be thought to have contemplated that such 'requirements' might be modified during the period of engagement, but that the engagement would continue to be conducted 'in accordance with' them, even if so modified.[52]
The judge also considered that it followed that the reference to 'Vision Australia Policies and Procedures' is to be similarly understood, ie, the employment relationship must be conducted 'in accordance with' the policies in existence at the time of making the contract, albeit that the content was capable of modification over time. Further, he considered it significant that the clause makes specific reference to the consequences of breaches of the 'Policies and Procedures', namely, that it 'may result in disciplinary action'. Thus, the clause plainly contemplates that the 'Policies and Procedures' have a specific operation in respect of the discipline of employees that has the capacity to affect the 'quality and continuance of the employment relationship', with the nature of that specific operation to be found in the 'Policies and Procedures'.[53]
In the judge's view, the operation of the contract in this way was confirmed by the form of the acceptance clause. While Vision had highlighted the part of the acceptance clause that states that the contract 'may be amended from time to time by mutual agreement', and contended that the contract had not been so amended to 'bring in' the Vision EA or any altered 'Policies and Procedures', the judge noted that Mr Elisha's pay nonetheless seemed to have changed over time despite the contract not being formally amended.[54] He considered that the terms of the contract contemplated that the employment relationship would continue to be regulated by awards, policies and procedures even if those requirements were altered over time. The judge found that it was not necessary for the contract to have been amended by 'mutual agreement', as the parties at the outset had agreed that the contract would be 'flexible enough to accommodate modification in the identified sources and requirements over time'.[55]
The judge then moved on to consider the final part of the acceptance clause, which confirms that Mr Elisha was required to agree that he would 'comply' with the 'Company Policies and Procedures'. He considered that the word 'comply' tends to confirm the earlier and specific meaning of the words 'in accordance with', that is, that Mr Elisha will comply with requirements specified over time. The judge considered that this confirmed that such specific requirements are incorporated into the contract if they are 'contractual'.[56] Further, he considered that the fact that the acceptance clause required Mr Elisha to agree to 'comply' with the 'Policies and Procedures' suggests that he should be taken 'to have accepted the implicit offer of [Vision] to accept its mutual obligation in accordance with the provision of its "Policies and Procedures"'.[57] He found that the object, terms and context of the 2006 Contract present as being 'in the nature of a bargain with an exchange of undertakings and assurances or promises', particularly in respect of the 'Policies and Procedures' and any 'disciplinary action'.[58]
Thus, the judge concluded that the contract 'may be taken to have operated to incorporate the industrial instruments - such as the Vision EA - and 'Policies and Procedures' over time, subject to the relevant parts of those documents being "contractual"'.[59]
The judge then turned to whether clause 47.5 of the Vision EA or the 2015 Disciplinary Procedure were 'contractual'.[60]
He observed that clause 47.5 of the Vision EA is in very similar terms to the relevant parts of the 2015 Disciplinary Procedure.[61]
The judge rejected Vision's submission that the 2015 Disciplinary Procedure was expressed in aspirational language and is not capable of giving rise to enforceable contractual obligations. He found that, while some of the opening paragraphs of the document contain expressions of commitment that might be said to be 'aspirational', it does not follow that the operative parts of the document do not stand as contractual terms.[62]
The judge also rejected a submission that the 2015 Disciplinary Procedure was separate and distinct from the 'contract provisions' by reason of the opening paragraphs in the 2015 Disciplinary Procedure (which distinguished 'this procedure', from 'all relevant industrial instruments and contract provisions'). He did not consider that a recital in a much later document displaced his conclusion that the contract contemplates that part of the then current and subsequent industrial instruments and Vision Australia Policies and Procedures will be contractual.[63]
The judge then considered the balance of Vision's submissions, which were directed to the parts of the 2015 Disciplinary Procedure that use words such as 'may', 'should' and 'not appropriate'. He accepted that parts of that procedure use these or similar words. However, in his view, significant parts of the procedure amount to 'a responsive assurance', as in Romero, in the nature of a promise that in the event of disciplinary action Vision will act in a specific way.[64] In particular, the judge considered the following was 'quite clearly' stated:

[65]

The judge observed that the 2015 Disciplinary Procedure consistently uses the word 'will', with the language being promissory and the sequence of steps reading as obligatory. He did not consider that the steps were 'guidelines'. He considered that there was nothing '"discretionary", "aspirational" or unclear about the language used', but rather that it is 'quite clear and prescriptive'.[66] He found that the same could be said about the relevant parts of clause 47.5 of the Vision EA.[67]
The judge reasoned that, as in Romero, the terms referred to are 'promises of a contractual kind in exchange for the correlative behavioural requirements imposed by the other policies of [Vision] directed to "values" and the like'. He considered that the terms were and are contractual in kind and reflect a 'bargain essentially struck' when the parties entered into the 2006 Contract.[68]
The judge observed that the relevance of 'one to the other', and the ongoing nature of the bargain earlier struck, is demonstrated by the reference to clause 47.5 of the Vision EA in the stand down letter and the other policies and procedures attached to that letter.[69] He further observed that an assumption in much of the evidence, and the submissions advanced on behalf of Vision, was that the 2015 Disciplinary Procedure attached to the stand down letter was 'no more than the flip side' of the allegation that Mr Elisha may have breached provisions of the various policies attached to the letter. In none of the evidence or Vision's submissions, was it suggested that the fact that the 'value' of being, for example, 'person centred', appearing in the 'Vision Australia Values' document, should be taken to mean that Vision or Mr Elisha understood such a 'value' to be 'discretionary', 'aspirational' or 'equivocal'. He observed that Mr Gow‑Hills stated 'quite directly' that he believed Mr Elisha had breached that value and that consequently his employment had been correctly terminated.[70]
Ultimately, the judge held that the plain, clear, and unequivocal terms contained in the 2015 Disciplinary Procedure should not be understood as merely 'discretionary', 'aspirational' or 'equivocal' and therefore not 'contractual'. It followed that the terms to which he had referred (whether in clause 47.5 of the Vision EA or the 2015 Disciplinary Procedure) were contractual and incorporated into the employment relationship by operation of the terms in the 2006 Contract.[71]

[67]

(a) that the 2006 Contract is comparable to the language of the relevant contracts considered in Lloyd, Soliman, BHP Iron-Ore and Cliffe v Hoechst Australia Ltd.[72] In particular the phrase 'governed by' was found in Soliman to merely constitute a statement of legal position that the employer was bound by the relevant instruments. Hence the judge was wrong to conclude that the phrase 'governed by' incorporated the 1999 Award. The words were intended as a simple acknowledgement as to where one goes to find the obligations. The disjunctive 'and' separated the reference to the terms of the letter and the 1999 Award. The heading 'Conditions of Employment' was further apt to cover conditions from statute, an award or enterprise agreement;

(b) that the judge seemed to have wrongly concluded that the statutory significance of an award or enterprise agreement was not relevant. There needed to be clear expression before a court should find that the objective intent was to convert wide ranging statutory conditions into contractual terms;

(c) that, while the judge also relied on the phrase 'regulatory requirements' to incorporate the Vision EA, the expression 'regulatory requirements' was so vague and ambiguous as to be incapable of supporting incorporation. Vision emphasised the wide range of regulations which might be included, which extended to regulations touching on services provided by Vision. It was commercial nonsense to suggest that reasonable persons intended the entire scope of all potential awards, along with other requirements in legislation, to be incorporated into the 2006 Contract;

(d) that the Vision EA is a different type of instrument to the 1999 Award and made under a different statutory regime. The Vision EA could also not be said to be a 'regulatory requirement' as it is the product of a negotiated outcome approved by a majority of employees and the Fair Work Commission; and

(e) that the phrase 'in accordance with' is ambiguous like the phrase 'subject to' in Lloyd.[73] The 2006 Contract also does not address the consequences of any breach of the 'regulatory requirements'. Hence the 2006 Contract does no more than acknowledge or recognise any existing statutory or regulatory obligations to comply with 'regulatory requirements'. In oral submissions, senior counsel highlighted that the phrase 'in accordance with' is also used in respect of the 'Salary & Classification' clause which provides for the classification of an employee under an award, but does not incorporate the award.

[71]

Mr Elisha submitted that the judge applied the correct principles in determining the incorporation question. In particular, he emphasised that there are good reasons why parties may wish to incorporate aspects of an employer's disciplinary process into a contract of employment. From an employee perspective there is no standalone right to procedural fairness prior to dismissal, and the statutory remedy for unfair dismissal is very limited. For employers, a promise to comply with policy is a quid pro quo for the employee's promise to act in accordance with the employer's expectations and workplace values.
Mr Elisha submitted that the 'Conditions of Employment' clause deals with the conditions as they are known at time of contract. The 'Other Conditions' clause brings in future regulatory requirements and also policies.
Mr Elisha also emphasised that the purpose of the 2006 Contract was to regulate the employment relationship and that his role required him to interact with vision-impaired clients in their homes and workplaces. It was reasonable to contemplate that Vision would have policies bearing on conduct or values as well as procedures for dismissal if Mr Elisha did not conform to those values.
Mr Elisha submitted that the judge expressly acknowledged that particular difficulties can arise where a document otherwise has statutory effect and that he did not treat the statutory operation of the Vision EA as irrelevant. However, the test is not one of necessity but rather of the objective intention of the parties. Parties are free to contract on the terms of an enterprise agreement even if that agreement may have statutory operation outside a contract. Mr Elisha rejected the suggestion that some special rule applies whereby workplace agreements are incapable of incorporation.
In terms of the words used, a bare submission that a phrase is vague is unlikely to be determinative since the court's task is to make sense, if possible, of the document. In any event, the judge found that 'regulatory requirements' embraced the classes of requirements specified in the 2006 Contract. In oral submissions, counsel referred to those matters outside the parties' private agreement that bear upon the terms and conditions of employment otherwise dealt with in the 2006 Contract (e.g. under the 1999 Award and pursuant to superannuation obligations). The words 'will be' meant the parties contemplated that such requirements might be modified so long as they had contractual effect. Hence the third question posed by Lloyd has a limiting effect.
Mr Elisha also submitted that the fact that the 2006 Contract could be formally varied, but was not, did not mean the parties did not intend to be bound by the relevant documents in the form in which they existed during the currency of the employment. The judge found that the parties agreed at the outset that the 2006 Contract would be flexible enough to accommodate modification.

[72]

The correct approach is not in dispute. The task of the court is to objectively determine the meaning of the 2006 Contract, taking into account what reasonable persons would have intended to convey by the words chosen. That objective assessment is conducted having regard to the text, context and purpose of the 2006 Contract.[74] The language and circumstances surrounding the making of the 2006 Contract are also unique such that the application of these principles in other cases is of limited utility.
As indicated already, the judge found that the object of the 2006 Contract was to regulate the employment relationship in connection with Mr Elisha's position. That position required him to interact with vulnerable vision-impaired persons in their homes and workplaces.
The judge also accepted that Mr Elisha was not provided with any award or policy at the time the 2006 Contract was made, although the policies and procedures were available on Vision's intranet. However, he did find that, at the time of the making of the 2006 Contract, and thereafter, employees were required to act in accordance with certain specified values or behavioural norms and could face disciplinary action in the event of a failure to do so, but that written policies would regulate the conduct of any such disciplinary action.
Turning next to the text of the 2006 Contract, we do not consider that the statement that the engagement will be 'governed by' the 1999 Award (under 'Conditions of Employment'), was intended to incorporate the 1999 Award, nor the Vision EA.
First, as observed by the judge,[75] there is authority which suggests that the phrase, 'governed by', is insufficient to incorporate an award into a contract of employment.[76] This is because the phrase, 'governed by', is not couched in terms of a promise, but purports to simply record facts. This is particularly the case with respect to an award which has its own distinct operation at law independent of any contract of employment.[77]
Secondly, although the words 'governed by' are also used in respect of the terms of the letter - which are clearly intended, at least in part, to have contractual operation - this is insufficient to incorporate the 1999 Award. Rather, the words, 'governed by' are again simply recording the fact that the employment relationship operates within a legal framework which is affected by obligations identified in the contract as well as under the award.[78]
Thirdly, even if the clause could be seen as incorporating the 1999 Award, it is not intended to incorporate the subsequent Vision EA. While the 1999 Award was made under the regime provided for in the WRA, the Vision EA is a very different type of instrument made under a different statutory regime, namely, the FWA. Thus, the Vision EA is a product of a negotiated outcome, approved by a majority of employees to be covered by it.[79] An enterprise agreement is a means by which employees could pursue terms and conditions above those minimum standards in the modern awards and the NES.[80] By way of contrast, the 1999 Award set down prescriptive entitlements for a specific industry / occupation, as a means to ensure that the minimum safety net entitlements were protected.[81] For reasons analogous to those given by Jagot J in Soliman, we do not consider that the reference to a 1999 Award is apt to include an instrument completely different in kind some 14 years later.[82] This is highlighted in this case by the variance between the provisions contained in each instrument. Thus, although cl 13 of the 1999 Award dealt with termination, it did not contain the detailed provision for 'due process' relied upon by Mr Elisha, as contained in clause 47.5 of the Vision EA.
This result is consistent with the approach of Mr Elisha who did not contend that the Vision EA was incorporated by the 'Conditions of Employment' clause.
Turning next to the 'Other Conditions' clause, it provides that 'Employment Conditions will be in accordance with regulatory requirements'. The language of 'will be in accordance with' is promissory in character, particularly given its association with 'will be'. As observed by the judge, it is similar to the words 'abide by' considered in Riverwood, or 'to be observed' considered in Romero. Nevertheless, the phrase must be considered in relation to the surrounding language, particularly the relevant category of instrument referred to.
The first category of instrument referred to is that described as 'regulatory requirements'. Such a category is extremely vague and, as Vision submitted, apt to extend to a huge array of regulatory rules and obligations. Further, even if it was appropriate to embrace the 1999 Award (given the earlier reference in the letter to it), for reasons given already, this reference would not incorporate a subsequent instrument, not in existence at the time, and of a different character. This is even presuming the Vision EA is a 'regulatory requirement'.
However, the second category of instrument cited is the 'Vision Australia Policies and Procedures'. In considering the question of incorporation of these Policies and Procedures, including the later 2015 Disciplinary Procedure, there are a number of matters which suggest that they are intended to be incorporated into the 2006 Contract.
First, as indicated already, the judge made a number of important findings about the context in which the 2006 Contract was made. These included that, at the time of the making of the 2006 Contract, and thereafter, employees were required to act in accordance with certain values and could face disciplinary action in the event of a failure to do so. Further, written policies were in existence which would regulate the conduct of any such disciplinary action.
Secondly, the 'Other Conditions' clause expressly provides that breaches of the Policies and Procedures 'may result in disciplinary action.' That is, consistent with the judge's reasons, the letter of offer makes express provision for the capacity of a policy breach to affect the nature and/or existence of the employment relationship the subject of the 2006 Contract.
Thirdly, specific reference is also made to the Policies and Procedures in the acceptance clause of the contract wherein Mr Elisha states (in response to Vision's offer) that he agrees to 'comply with' the terms and conditions of employment 'and all other Company Policies and Procedures.' The word, 'comply' is very clearly intended to be promissory. A reasonable person would also readily understand that it would be unnecessarily cumbersome for all Policies and Procedures to be provided as part of the letter. The natural meaning of the clause is therefore that there was to be compliance with 'these' terms, as well as the 'other' terms found in the Policies and Procedures, but only insofar as they are also contractual.
Although Vision suggested that the letter of offer provided for the 2006 Contract to be amended by mutual agreement, which had not happened, the reference to 'other Company Policies and Procedures', would be well understood by a reasonable person to incorporate those policies as they might change from time to time. Consistent with a contract intended to have some duration with capacity to respond to changes in environment, an amendment could readily occur by way of notification via the company intranet, rather than by formal amendment.
Nor do we accept Vision's submission that the obligation was intended to be one-sided. The clause is embodied in a letter of offer made by Vision. The expression 'comply with' in such a context clearly reflects the parties' intention to offer and accept mutual obligations in accordance with the company's policies as they were promulgated from time to time.[83] This is particularly important in the context of the relevant disciplinary policy relied upon in this case. If the employer is subjecting an employee to disciplinary action according to policies under the contract created by that employer, it would 'defy both logic and common sense' to suggest that the employer was not obliged to take the steps which the policy provided for.[84] A reasonable person would readily understand that an employer would be similarly bound by any such policy.
We also do not accept the submission that the clause operates solely as a lawful and reasonable direction on the part of Vision. The language used is not that of direction, and a similar argument was readily rejected in Romero.[85]
The existence of unfair dismissal laws is certainly relevant, as Vision highlighted. However, we consider that the matters we have identified indicate that the words 'comply with' are clearly intended to serve a contractual purpose in this particular setting (where employees were dealing with vulnerable clients). We do not accept that the language of the 2006 Contract was only intended to 'facilitate compliance' with other statutory obligations, as Vision submitted. The following remarks in Romero are apposite:

[74]

There are also limits in terms of the coverage of the unfair dismissal regime.[87] Further, the Vision EA only dealt with dismissal and did not make provision for other disciplinary processes such as warnings and training. Nor for that matter did the Vision EA deal with other policy matters which might be considered important (as evident from the range of policies annexed to the termination letter). Vision's concerns as to the potential width of the policies are readily managed by a proper analysis of whether specific clauses of a particular policy are intended to have contractual effect (the third question in Lloyd).
We are hence of the view that the 2006 Contract incorporated Vision Policies and Procedures, including the 2015 Disciplinary Procedure, but only to the extent that clauses contained therein were intended to have contractual effect. It remains to consider whether the clauses relied upon by the judge did have such effect.
It may be accepted that certain aspects of the 2015 Disciplinary Procedure are clearly aspirational (e.g. 'committed to', 'may be') as was acknowledged by the judge.[88] However, there are significant parts of that procedure that contain assurances or promises that Vision will act in a very specific way. For present purposes we agree with the judge that the parts which deal with the procedural steps to be followed in the conduct of a disciplinary meeting are very much in this category.[89] Given that Vision had clearly decided that the concern was of a 'more serious nature' in this case, there can be no doubt that a formal disciplinary meeting occurred. Once that is commenced, the language suggests that Vision 'will' act in a particular way such that it is obliged to follow certain procedural steps. None of the steps are in the nature of guidelines and there is nothing 'aspirational' or 'discretionary' about the language, which is clear and prescriptive.
We therefore agree with the judge that Vision promised to act in a very specific way in the event it took disciplinary action.[90] This importantly included a contractual promise to provide the employee with a letter containing 'a written outline of the allegations'[91] and to also give the employee 'an opportunity to respond to the allegations' at the formal disciplinary meeting.[92]
It follows that, although we disagree with the judge about the incorporation of the Vision EA, that is immaterial given the incorporation of the relevant parts of the 2015 Disciplinary Procedure as he identified.
Proposed ground 1 is therefore not established.

[78]

After a comprehensive consideration of the oral and documentary evidence, the judge also made detailed findings about the 23 March incident. By way of summary, he found that the events which transpired in Bairnsdale were 'considerably less objectively dramatic' than later suggested (and evidently accepted by Vision). He considered that there were many contributing factors to what occurred, particularly the vulnerability of both Ms Trch (who had attended the incident in her pyjamas late at night) and Mr Elisha. The judge did not accept that in the course of events in Bairnsdale Mr Elisha was 'anything more than irritated and insistent (and therefore irritating).' Critically he found that '[Mr Elisha] was not objectively aggressive, threatening or frightening'.[98]
The judge then turned to the circumstances surrounding the termination process.
The judge noted that the early suggestions of Ms Hauser (which were at least part of the impetus for the process that followed) included the contention that Mr Elisha had a history of 'behaving aggressively and avoiding the consequences of that behaviour by "making excuses" and otherwise explaining away his actions'.[99]
In this regard, the judge considered that the only available records relating to Mr Elisha's performance in the period while he was being supervised by Ms Hauser contained no suggestion that he was aggressive towards her or any other staff member of Vision (or any client), or that he was engaging in 'some systematic exercise in untenable excuse making'.[100]
The judge then considered the oral evidence in more detail. This included Ms Hauser's oral evidence about Mr Elisha's aggressive behaviour (including an incident relating to him using the visitors' car park) as well as the evidence of Mr Gow-Hills that Ms Hauser's views had been reported to him.[101] The judge was 'very doubtful' that Mr Elisha had 'any history of aggression or untenable excuse making' prior to the 23 March incident. He further stated:

[95]

In oral submissions, senior counsel highlighted the finding of a 'sham', and that there was an idea of a 'conspiracy' where Vision acted with intent and knowledge. He also particularly criticised the judge's finding[123] as to the 'real reason' Mr Elisha's employment was terminated.
Senior counsel also submitted that Ms Hauser's emails used temperate language and did not make an allegation at the 'same level of seriousness' as pertained to the 23 March incident. Hence there was no unput allegation that rose to the 'level' as relied upon by the judge. It thereby followed that the judge looked at the evidence through the 'wrong lens'.
Vision also emphasised that the email of Mr Gow-Hills of 29 May was sent after the decision was made at the 27 May meeting but before it was communicated, and was not concerned about a history of aggression as a reason for termination but about raising this history in response to the ASU notice of dispute so as to shore up a position.
Finally, senior counsel submitted that Mr Gow-Hills took the pattern of aggression into account 'as a background factor' in deciding who to believe, but that the decision was made on the basis of the serious misconduct at Bairnsdale.
Mr Elisha submitted that this proposed ground essentially challenges facts and that there was nothing about the judge's findings that was 'glaringly improbable' in accordance with Fox v Percy ('Fox')[124] and Robinson Helicopter Co Inc v McDermott ('Robinson Helicopter').[125]
Mr Elisha emphasised that the ultimate findings on breach are at [429]-[430] of the Reasons and that the judge's use of words such as 'sham' did not constitute a 'basal finding,' but were statements he was entitled to make. He submitted that the judge found that the reasons for termination were not confined to the 23 March incident and that there was clearly evidence to support this finding, including Mr Gow-Hill's email of 29 May, as well as a transcript of some of Ms Hauser's earlier evidence in a Magistrates' Court hearing.
Mr Elisha also emphasised that the judge did not find that Ms Hauser had deliberately pursued a plan to remove him from employment by deliberately planting information in the minds of the other Vision employees. Rather the decisions as to what had happened, and what to do in relation to Mr Elisha, were heavily guided by Ms Hauser's views that Mr Elisha had an aggressive nature and refused to accept responsibility and that what was alleged against him was typical of his nature.

[96]

A number of Vision's complaints can be readily dismissed.
First, although it is true that the judge made extensive remarks about the conduct of Vision, and was clearly unimpressed by the manner in which Mr Elisha was terminated, Vision ultimately accepted that the key finding of breach 'distilled down to a failure to put Mr Elisha on notice of, and give him an opportunity in the meeting to respond to, this "secret" or "hidden" allegation'.[126] That allegation was that Mr Elisha had a history of aggression and excuse making.
Consistent with this concession, the judge's critical finding on breach is enunciated in [429] of the Reasons,[127] which, in turn, constitutes a breach of the relevant contractual terms he had earlier identified at [420(b)] and [420(f)] of the Reasons.[128] Any further characterisation of the conduct as being a 'sham' is hence unnecessary, at least insofar as the breach of contract claim is concerned.
Secondly, insofar as criticism was made about puttage, this does not appear to be the subject of any discrete ground. It was also not suggested that any complaint based on Browne v Dunn[129] was made to the judge.
In any event, there is no merit in this complaint. Thus, although it appears that it was not expressly put to the relevant witnesses that the process was a 'sham', for reasons given already this was not the critical finding. That finding rather turned on the failure to disclose allegations made about Mr Elisha's character. In this respect, there was extensive cross examination of Mr Gow-Hills, as decision maker, as to whether, and how, he relied on Mr Elisha's undisclosed history of aggression and excuse making in making the decision. Mr Van Dyk and Ms Eagle had very limited memory, but Mr Van Dyk was asked whether the reference to aggressive behaviour in the email of Ms Hauser of 8 May affected his decision. Ms Eagle was also asked whether she put the allegations in Ms Hauser's email of 8 May out of her mind. Ms Hauser, as author of the emails, was also asked whether she was sufficiently 'impartial', and it was also put to her that there was a 'stitch up'.
Thirdly, the judge did not make his findings as to breach solely based on general credit findings about the relevant witnesses. Rather, as set out already, the judge carefully examined the evidence of each of the relevant witnesses in relation to the decision making process.
In reality, the fundamental complaint of Vision is that the judge should not have rejected the evidence of the Vision witnesses to the extent they sought to suggest that they did not take into account Mr Elisha's history of aggression and excuse making. Further, he should not have drawn the inference that it was 'much more likely' that the claimed history of aggression and excuse making was taken into account in determining to dismiss him.
However, the judge's findings in this respect were clearly affected by impressions about the credibility and reliability of witnesses formed by the judge as a result of seeing and hearing them give their evidence. Vision therefore needs to demonstrate that the judge's findings were 'glaringly improbable' or 'contrary to compelling inferences'.[130]
We are not satisfied that Vision has demonstrated any error. It has certainly not demonstrated that the judge's findings were 'glaringly improbable' or 'contrary to compelling inferences'.
The short answer to Vision's submission is that the key decision maker, Mr Gow‑Hills, conceded that he took the pattern of aggression into account. Even if (which the judge did not accept), this was limited to using it to decide 'who to believe', this is not to the point. The decision to accept Ms Trch's version was critical to the finding of 'serious misconduct' used to justify the termination by Vision in the letter of 29 May.
There was in any event ample evidence for the judge to find that the key Vision witnesses relied on Mr Elisha's alleged history of aggression and excuse making in reaching the decision to terminate, and to reject any evidence to the contrary. For present purposes, it is only necessary to cite three categories of evidence.
First, there were the emails of Ms Hauser. The email of 8 May (sent to Mr Van Dyk and Ms Eagle) expressly cites Mr Elisha's 'aggressive behaviour in the past'. It also refers to the alleged fact that he always managed 'to make excuses'. This is notwithstanding the judge's finding that such allegations were never put to him. Whether the email rises to the 'level' of seriousness of what was alleged in respect of the 23 March incident is not to the point. The email contains the key allegations which the judge found were not put to Mr Elisha. The email of 10 May might have been less particularised, but it also referred to Mr Elisha's behaviour having 'deteriorated'.
The views expressed in Ms Hauser's emails also appear to reflect long standing views held for some time 'over the years,' not just on 8 May. Thus, Mr Gow-Hills' knowledge about Mr Elisha's so-called pattern of aggression did not come directly from Ms Hauser's emails at all. As the judge found, Ms Hauser's views had 'found their way to him'.[131] In fact Mr Gow-Hill's evidence was that these views had been orally reported to him by Ms Eagle.
Secondly, there was the email of Mr Gow-Hills to Mr Van Dyk at 7:43 am on 29 May which responded to an email from Ms Eagle of 28 May (addressed to both Mr Gow‑Hills and Mr Van Dyk). Although it may be true that the catalyst for the email was the notification of a dispute from the ASU, this does not detract from the strength of the clear views expressed. The email again evinces a view that Mr Elisha had a 'pattern of aggression', but demonstrated 'no awareness' that he was aggressive. There is no reason to suspect that this belief suddenly came about after the decision to terminate (which had only been made, shortly before, during the 27 May meeting). In fact the email from Ms Eagle asked whether the ASU correspondence changes 'our proposed strategy', consistent with a pre‑existing position. As senior counsel properly accepted, it was unlikely that the judgment that there was a pattern of aggression was only reached just after the decision to terminate.
Thirdly, there was evidence given by Ms Hauser herself in the Magistrates' Court on 28 July 2022 (which was put to her in front of the trial judge). After being shown her email of 8 May in which she said that 'in this instance there is no excuse' the following evidence was given in the Magistrates' Court:

[100]

The issue of damages arose only in respect of Mr Elisha's breach of contract claim.[134]
The judge first dealt with Vision's contention that damages are not measured 'at large', but that damages were limited to what would have happened but for the wrongful summary dismissal, which would have been termination on the provision of one month's written notice (or payment in lieu) in accordance with the 2006 Contract.[135]
The judge rejected this submission.[136] He considered that if Vision had complied with the terms of the contract, and acted at all reasonably, Mr Elisha would not have been summarily dismissed.[137] The judge further reasoned that, while the contract confers a right upon either party to terminate by giving a month's written notice, there would 'realistically need to be a reason to suspect that such notice would ever have been given.' He considered that, absent the events that he considered constituted a breach of contract by Vision, 'no such reason was demonstrated in the evidence'.[138]
The judge also recorded a related submission that Mr Elisha's employment would have been terminated anyway. He noted that this submission seemed to have been sought to be advanced by reference to the subsequently received complaint involving the 17‑year‑old client in Ballarat. He considered that, given what he had said earlier, this submission must be rejected.[139]
Next, the judge considered Vision's submission that damages in respect of the psychiatric injury suffered by Mr Elisha were 'too remote'. That is, such damage was not of a kind that was within the reasonable contemplation of the parties at the time that the 2006 Contract was made.[140]
The judge cited Nikolich in which the trial judge had held that damages for personal injury in the nature of psychiatric illness was within the contemplation of the parties because the relevant contractual obligations had been 'intended to provide peace of mind'. The judge noted that Vision had submitted that the purpose of the 2015 Disciplinary Procedure was 'not to address the health and safety of employees, but rather to address issues relating to alleged problematic employee behaviour and conduct.' The judge rejected this submission. He considered that the 2015 Disciplinary Procedure contains terms of an obligatory kind to assure employees that any disciplinary processes will be fairly conducted.[141] He further stated:

[111]

It was not suggested that Mr Elisha's psychiatric illness would arise according to the usual course of things. Rather, the key issue turned on what would have been in the reasonable contemplation of the parties at the time at which the 2006 Contract was made. Consistent with Evans, this will depend on the degree of relevant knowledge possessed by both parties, but particularly, Vision, at the time of the making of the 2006 Contract.
A number of other preliminary matters are important in applying remoteness principles.
First, it is necessary to bear in mind that the judge found that Mr Elisha did not just suffer some distress, but a 'very severe psychiatric illness in the nature of at least major depressive disorder' which meant that he has been unable to work, and is likely to remain totally and permanently unable to work, for the foreseeable future.[151] Although the parties did not need to contemplate the precise extent of Mr Elisha's illness in the event of breach, they needed to contemplate the kind or type of loss in question, which was a psychological or psychiatric injury - not just some distress.[152]
Secondly, it is important to have regard to the specific breaches found by the judge to result in the damage. Contrary to some of Mr Elisha's submissions, there was no breach of a general term to accord 'fairness' or provide a 'safe workplace'. The case of Nikolich is hence immediately distinguishable given the term breached in that case was a term that the employer would take every practicable step to provide and maintain 'a safe and healthy work environment.'[153] In that particular context, the trial judge considered that mental disability was a severe manifestation of the very type of detriment 'that the [employer's] promises were designed to prevent'.[154]
By way of contrast, in this case, the breaches were constituted by a specific failure to put allegations to Mr Elisha prior to, and during, a formal disciplinary hearing in accordance with the steps specified in the 2015 Disciplinary Procedure.[155] The judge also found that there was nothing to suggest that the applicable disciplinary procedures were 'qualitatively any different' between September 2006 and May 2015.[156] It is therefore appropriate to consider whether the parties ought to have reasonably contemplated that psychological or psychiatric injury might be the result if there was a failure to comply with such procedures in the ways identified by the judge.
Turning then to the judge's crucial findings in the present case at [163] above, a number of matters may be put to one side.
In relation to sub-para (a), the fact that the 2006 Contract contained a clause which permitted termination upon one month's notice is of no consequence. Such a standard notice provision would tell the parties nothing about the likely risk of psychological injury from a failure to put allegations to an employee in the context of a disciplinary hearing.
Both sub-paras (b) and (c) focus on the inherent nature of the terms allegedly breached. However, the generalised reference to the fact that the 2006 Contract was to be 'in accordance with regulatory requirements and Vision Australia Policies and Procedures' does not elucidate the probable result of a breach of the specific obligations identified in this case. For reasons given already, the terms the judge found to be breached also did not constitute some generalised obligation to accord 'fairness'.[157]
In oral submissions, senior counsel for Mr Elisha sought to suggest that the breach of disciplinary procedures is inherently likely to give rise to psychological or psychiatric injury. However, we are unable to be satisfied that this is the case. Unlike in Nikolich, we do not consider that a promise to put allegations was inherently designed to prevent psychological injury. It may be that a failure to put allegations could readily be anticipated to cause some distress. However, the mere existence of an obligation to put someone on notice of allegations, without more, does not suggest that a psychiatric or psychological illness should reasonably have been in contemplation of the parties in 2006.
In relation to sub-para (e), the provision of access to counselling and support might be of some consequence if it was clearly directed to those subject to a disciplinary hearing. Although Mr Van Dyk gave evidence that there was some external placement support available on termination, Ms Hauser's evidence was that counselling was provided by Vision for all kinds of reasons, 'anything', including personal reasons.
This leaves the judge's reference to 'the evidence' at sub-para (d), which he considered suggested that the risk that termination could result in distress, and 'even psychiatric illness', was an 'acknowledged possibility'. The judge did not identify what that evidence was, although both parties provided transcript references in submissions before this Court. In the result, the key evidence of the four main Vision witnesses may be summarised as follows:

[115]

Although the judge criticised aspects of Associate Professor Doherty's evidence,[158] he extracted this evidence, above, without criticism, and relied on it in considering the negligence case. In fact, the judge considered that this evidence suggested that it might be 'understandable' that a wrongful termination might have a psychological and even psychiatric effect upon a worker.[159]
This, however, is not the evidence of Associate Professor Doherty. As is clear from the above extract, he considered that Mr Elisha's reaction was 'extraordinary' and not consistent with the 'reasonable' and 'understandable' effect of a wrongful termination. Associate Professor Doherty's evidence therefore did not support the notion that a psychiatric response should reasonably have been in the contemplation of the parties at the time they made the 2006 Contract.
Vision's evidence in relation to the question of remoteness was largely uncontested and relied upon by the judge. We are therefore in as good a position as the judge to consider the evidence. Having considered that evidence, it may be correct to state (as the judge did) that there was a 'possibility' of some psychological impact as a result of a failure to put allegations to an employee. However, the existence of such a remote possibility is insufficient, having regard to the degree of relevant knowledge of Vision at the requisite time. Thus, as at the time of the making of the 2006 Contract, there was no evidence at all that Vision had any knowledge of any vulnerability on the part of Mr Elisha. Nor was there any evidentiary basis advanced for any of the Vision employees to be concerned about the impact on Mr Elisha's physical or psychological wellbeing of a potential breach of disciplinary procedures. There was also no other objective evidence that, as at 2006, Vision had otherwise acknowledged the specific risk of psychological damage from a failure to put allegations to Mr Elisha, or any employee. In such circumstances, it cannot reasonably have been supposed to have been in the contemplation of the parties, at the time of the making of the 2006 Contract, that psychological or psychiatric injury to Mr Elisha would be 'on the cards' if Vision failed to put allegations to him.
It is unnecessary to go further. However, we are also fortified in our views by the medical evidence of Associate Professor Doherty that Mr Elisha's reaction was in fact inconsistent with what could be considered to be the reasonable effect of a wrongful termination.
We therefore respectfully disagree with the judge's characterisation that the parties ought reasonably to have had in contemplation that potential psychiatric illness was a 'serious possibility', 'not unlikely,' or 'on the cards'. We do not consider that the type of damage suffered by Mr Elisha was such as may be reasonably supposed to have been in the contemplation of the parties as a result of the breaches identified by the judge at the time they made the 2006 Contract.
The result is that the award of damages relating to earning capacity must be set aside, given that the loss of earning capacity flowed from the psychiatric injury. The damages for pain and suffering were also assessed by reference to the 'severe impact' that Mr Elisha's psychiatric injuries had had upon him.[160] It follows that the award of damages in respect of pain and suffering must also be set aside.

[119]

Vision submitted that the judge was wrong to disregard Addis, which held that damages for psychiatric loss arising from the manner of dismissal from employment are not available. Vision contended that the decision in Nikolich has not been followed by any other appellate court and has been distinguished as turning on its own facts. Vision also submitted that Nikolich was not a 'manner of dismissal' case - which this case was.
Mr Elisha's submissions on this issue were not always precise. At one point he submitted that the breach here was concerned with the circumstances leading up to termination (while he was still employed) rather than the manner of the termination. He also again submitted that, akin to Nikolich, the 2015 Disciplinary Procedure contained obligatory terms that assure any employee that any disciplinary process that they might face will be 'fairly conducted'. Senior counsel also referred to the possibility that the object of the disciplinary procedures might be to provide peace of mind, but did not develop any such submission.
However, Mr Elisha's key submission was that there was no error in the judge relying upon the proposition that damages for personal injury constituted by psychiatric illness could be recovered in an action for breach of contract. In doing so he submitted that the rule in Addis was concerned with the recovery of damages for distress and humiliation and did not operate in respect of damages for psychiatric injury, which is the equivalent of physical injury. He relied upon statements of McHugh J in Baltic Shipping Co v Dillon ('Baltic Shipping')[165] and Black CJ in Nikolich.[166] He accepted that this argument had only been seen as a potential argument in other cases (citing Ashley J in Aldersea v Public Transport Corporation ('Aldersea')[167] and Spigelman CJ in State of New South Wales v Paige ('Paige')).[168] However, he submitted that the recent decision of the High Court in Moore v Scenic Tours Pty Ltd ('Moore')[169] had 'clearly decided' that stress and humiliation are quite separate to psychiatric injury.

[131]

It follows that damages for psychiatric injury are not available in respect of a breach of contract claim such as this one. The policy underpinning this is well demonstrated in the present case using ordinary remoteness principles. As Ashley J said in Aldersea, if distress is outside the boundaries of remoteness in cases of the present type, it is difficult to see how it could be any different if the consequence of breach was psychiatric injury, and not only distress.[191]
Mr Elisha's reliance on Moore also does not assist him. That case was concerned with whether the appellant was precluded from recovering damages for distress following a failed cruise by reason that his award failed to reach a minimum threshold set under the Civil Liability Act 2002 (NSW) ('CLA'), ie, the key question was one of statutory construction as to whether the CLA applied.
The respondent, Scenic Tours Pty Ltd ('Scenic'), had argued that the CLA applied because the alleged distress constituted an 'injury' under pt 2 of the CLA as it was an 'impairment of ... mental condition' within the meaning of s 11 of the CLA. It argued that a person's mental condition was impaired when expectations of pleasure were unfulfilled and, in so doing, sought particular support from the reasoning of Brennan J in Baltic Shipping.[192]
The High Court held that s 16 of the CLA did not apply to preclude the distress damages because damages for distress were separate and distinct from personal injury damages under the CLA.[193] However, there is nothing in the reasoning of any member of the High Court which suggests that the available categories of non‑economic loss for a breach of contract ought be widened to include a category for psychiatric illness in its own right.
The majority (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) recorded that every member of the Court in Baltic Shipping had accepted that disappointment and distress 'caused by the breach of a contract ... the object of the contract being to provide pleasure or relaxation' was a compensable head of loss separate and distinct from injured feelings compensable under the rubric of pain and suffering and loss of amenities of life associated with personal injury.[194] In doing so, however, they expressly referred to, and applied the exceptions identified by Mason CJ in Baltic Shipping. This included reference to the second exception as set out above - which depends critically on the existence of a physical injury.[195]
After also citing the categories of exceptions as identified by Mason CJ in Baltic Shipping, Edelman J stated:

[143]

The duty of care pleaded was a broad duty to take reasonable care 'for the safety of [Mr Elisha] while he was performing his work'. However, the judge considered that 'as it emerged', Mr Elisha contended that Vision had owed to him, and breached, a duty of care 'in respect of the process by which his employment came to be terminated' and which led to psychiatric injury.[202]
The judge ultimately upheld Vision's submission that, insofar as Mr Elisha asserted a common law duty of care on the part of the employer in respect of matters 'concerning the termination of [Mr Elisha's] contract of employment, as distinct from performance under that contract', the asserted duty is not recognised by the common law.[203]
The judge set out the reasoning of Spigelman CJ in the NSW Court of Appeal decision of Paige (with whom Mason P and Giles JA agreed in relation to the negligence claim),[204] which concerned a claim by a school principal for damages for psychiatric injury caused by 'unsafe' disciplinary proceedings.[205] He observed that the duty of care had been formulated in that case as encompassing 'the provision of a safe system of investigation and decision making' with respect to 'discipline and termination of employment.' The 'defects' identified included a denial of procedural fairness and a submission that the contract had 'never been validly terminated.' Spigelman CJ described the formulated duty as 'novel' and involving 'an extension of employers' duties'.[206] He ultimately refused to recognise that such a duty of care existed, having regard to issues of compatibility with other obligations recognised, including those recognised under legislation, as well as under contract law.[207]
The judge recorded that senior counsel for Mr Elisha had contended that Paige should be distinguished because of the impact in that case of the provisions of the Teaching Services Act 1980 (NSW) on the scope of any duty in tort.
The judge observed that Paige might be said to involve concerns of coherence arising from, amongst other things, the provisions of both the Teaching Services Act 1980 (NSW) and the Industrial Relations Act 1996 (NSW).[208] He then proceeded to consider the decision at some length and recorded some particular reservations about it, including:

[145]

The judge next considered the decision of the Queensland Court of Appeal in Govier v The Uniting Church in Australia Property Trust (Q) ('Govier')[213] in which the appellant's claims included a claim for damages for psychiatric injury resulting from 'insensitive' letters sent by the respondent. Those letters were sent during the course of an investigation into the appellant's conduct, which ultimately led to her being stood down, and later terminated. The judge recorded that in that case, Fraser JA, with whom Gotterson JA and North J agreed, considered an incompatibility with 'the law of contract, as modified by statute, concerning termination of employment' to be sufficient to stand against acceptance of the 'novel' duty of care there postulated.[214] The judge did not accept, as contended by senior counsel for Mr Elisha, that the fact that special leave to appeal to the High Court had been granted in Govier, and then later revoked (because the appellant's contract of employment had not been placed into evidence at trial),[215] meant that the authority of Govier was impugned.[216]
The judge noted that Paige was later confirmed to be correct by the New South Wales Court of Appeal in Shaw.[217] He also proceeded to consider a number of further cases,[218] including the Queensland Court of Appeal decision in Potter v Gympie Regional Council ('Potter').[219]
In Potter, the plaintiff sought damages for psychiatric injury, claiming that the defendant was negligent in dealing with work performance issues that arose, as a consequence of which he had been suspended. On appeal, the Queensland Court of Appeal determined that the trial judge was correct in confirming that a duty could not extend to incidents of the contract of employment such as the 'disciplinary procedures' there under consideration.[220]
The judge considered that the decisions he had cited tended to highlight the care which must be taken when it is sought to treat Paige, or any of the cases which he referred to, as ipso facto 'insuperable'. That said, in Queensland, in particular, he considered that there seemed to be support for the proposition that there can be no duty of care in respect of the incidents of the contract of employment such as the exercise of power to suspend in connection with disciplinary procedures. The judge considered that proposition seemed to carry within it an acceptance of the correctness of the underlying reasoning in both Paige and Govier.[221]
The judge stated that in this case the duty postulated was not necessarily 'incompatible' with the statutory scheme of the FWA, and therefore precluded, and indicated that he would not conclude that Mr Elisha's claim was necessarily precluded by that aspect of the reasoning in Paige or Govier.[222] However, he accepted that the recent reasoning in Potter was significant and cannot be ignored. This reasoning tended to suggest that such a duty will be 'incompatible with disciplinary procedures', particularly in a case where the appellant was suspended from work but his employment was not at that time terminated.[223]
The judge further noted that the reasoning in Paige is based on more than one suggested element of incoherence. A significant element of that reasoning was identified as based on the 'line of authority' involving Addis and Baltic Shipping.[224] In that connection, the judge cited the remarks of Ashley J in Aldersea we have cited earlier_._[225] While Ashley J made his remarks in relation to a claim pleaded in contract, the judge considered the proposition to be broader, stating:

At a glance

Court

Decision date

Before

Source

Judgment (272 paragraphs)

Vision Australia Ltd v Elisha [2023] VSCA 265 (1 November 2023)

Parties

Legislation Cited (4)

Cases Cited (31)