Walker v University of Sydney

Supreme Court of NSW|2013-02-13|Before: Harrison J

Judgment 1HIS HONOUR: With effect from 1 July 2004, Professor Walker was appointed as a professor of the University of Sydney and Dean of the Sydney Conservatorium of Music for a period of five years. Her appointment was renewable for a further two years at the sole discretion of the university. Unfortunately, things did not go as planned. Professor Walker eventually commenced these proceedings in 2011 seeking damages for alleged breaches of her employment agreements and for associated relief. Her current pleading is an amended statement of claim filed on 17 February 2012. By her notice of motion filed on 10 October 2012 Professor Walker seeks leave to amend her pleadings and to rely upon a further amended statement of claim. Professor Walker's proposed amendments are relatively extensive and potentially controversial. Her application to amend is opposed. 2The university has also filed its own notice of motion seeking orders for the summary dismissal of parts of Professor Walker's claim pursuant to UCPR 13.4 and for orders striking out those and other parts of her pleading pursuant to UCPR 14.28. Despite Professor Walker's opposition, I granted leave to the university to file an amended notice of motion in court on 12 February 2012. The relief sought by the university is conveniently and sensibly framed by reference to the terms of the nominated paragraphs of the proposed further amended statement of claim, without conceding that I should grant Professor Walker the leave she requires to rely upon it. 3Although the university also originally asked me for orders pursuant to s 192A of the Evidence Act 1995 with respect to significant portions of statements of evidence served by Professor Walker, that was ultimately not pursued. The final orders contended for by the university were therefore as follows:

Professor Walker's notice of motion 4Professor Walker seeks leave to amend her current pleading by the addition of the paragraphs or parts described and listed in the First Schedule to these reasons. The university opposes the grant of leave in respect of the amendments in the ways described as follows:

Paragraphs 106A to 10CG inclusive;
The additions to paragraph 111 (which, in any event, the university seeks to have struck out);
The particularisation of paragraph 13.21 of Professor Walker's evidentiary statement dated 22 June 2012 wherever it appears. (Aside from paragraphs otherwise referred to, paragraph 13.21 is particularised in paragraphs 112, 116D, 116E and 116F);
Paragraph 116G;
In paragraph 116I: (i) the words "and that was and is in breach of the Third Employment Agreement as renewed"; (ii) the second sentence in the particulars to proposed paragraph 116I, which begins "The defendant was in breach ..."; and
Particular C(bb) to Professor Walker's "Particulars of Damages and Compensation Claims" (which claims aggravated damages by reference to paragraph 106CG). 5The university had no objection to paragraphs 106A or 106B standing alone as part of what it characterised as "an otherwise acceptable pleading". Paragraph 106C appears to allege that, unless the university wished to extend Professor Walker's appointment as Dean of the Conservatorium and sought her agreement to do so, it breached the alleged implied terms and clause 4.1(g) of a deed of release executed on 10 December 2007. The relevant terms of the deed are reproduced below. In other words, Professor Walker's position appears to be that, by reason of the alleged implied terms and clause 4.1(g), the university lost the contractual freedom otherwise conferred by clause 4.2 and was, in effect, bound to renew her appointment as Dean. 6The university argues that because of the terms of paragraph 106CA, there is a possibility that the allegations in paragraph 106C are to be understood by reference to paragraphs 106CB to 106CG. Paragraph 106CB cross-refers to paragraphs 14.1, 14.2 and 15 to 19 of the further amended statement of claim, which make various allegations about the circumstances prior to Professor Walker's entry into the Third Employment Agreement. 7Paragraph 106CD alleges that the university was aware that Professor Walker expected to be offered an extension of her appointment as Dean until the conclusion of the Conservatorium's centenary celebrations in 2015. Paragraph 106CE alleges that it was likely that in the event she was offered an extension of her appointment as Dean until then, Professor Walker would have accepted it. Paragraph 106CF alleges that in the event Professor Walker had become aware that she was not likely to be offered such an extension of her term as Dean, she would have sought comparable employment overseas. 8Each of these proposed paragraphs contains particulars that cross-refer to other parts of the further amended statement of claim and Professor Walker's statement. The university opposes any reference in this way to paragraph 13.21 of that statement, which refers to Professor Walker's tender document 25. That is a 21-page document of which only one page appears to refer to overseas appointments. 9Paragraph 13.21 of Professor Walker's statement is as follows: "13.21 The completed PM&D form dated 29 March 2007, email from Nutbeam with a draft of the PM&D conclusions dated 23 April 2007, a memorandum from me dated 30 April 2007 and a letter from Nutbeam to me dated 4 May 2007 comprise the PM&D documentation." 10In any event, it is apparent from the cross-references in these paragraphs that those allegations relate to events prior to, or essentially contemporaneous with, the entry into the Third Employment Agreement in late April or early May 2007. In these circumstances, the case being made would appear to be that the university procured Professor Walker to enter into the Third Employment Agreement on a particular understanding, that in the absence of good reason it would renew her appointment as Dean until the conclusion of the Conservatorium's centenary celebrations in 2015. Had Professor Walker known that she would not likely be offered an extension of her term as Dean until then, she would have sought comparable employment overseas. In those circumstances the university will have breached the alleged implied terms and clause 4.1(g) of the deed by not wishing to renew Professor Walker's appointment as Dean beyond December 2011 and notifying her of that wish. 11According to the university's submission, if that is the case that Professor Walker seeks to make, then paragraph 106CG is not relevant to her cause of action. Paragraph 106CG includes the allegation that "[f]rom about the time of the appointment of Dr Spence as Vice-Chancellor in 2008, alternatively by about June 2010, it was the intention of the University by the Vice-Chancellor Dr Spence and others that the University would not extend Professor Walker's appointment as Dean beyond 31 December 2011 to 2015." Professor Walker alleges that the university formed an intention not to extend her appointment as Dean after the entry into the Third Employment Agreement. That being so, the date on which the university formed that intention is not relevant to Professor Walker's cause of action. It is not in issue that the university did not offer to extend the appointment as Dean beyond 31 December 2011. In contrast to paragraph 114, for example, there is no allegation that the university was in breach by failing to inform Professor Walker of the alleged intention not to renew. The university therefore contends that paragraph 106CG is irrelevant to Professor Walker's contractual cause of action and ought not be permitted. 12Paragraph 106CG is then followed by twelve very extensive sub-paragraphs said to contain both pleadings and particulars of the further amended statement of claim. It is replete with cross-references to other paragraphs and large extracts from Professor Walker's statement and documents to which it refers. Paragraph 106CG does not identify the "others" referred to in the paragraph, nor the conceivable relevance of their intention, particularly given the terms of paragraph 110, which asserts that "[t]he University's power to extend Professor Walker's appointment as Dean was exercisable by its Vice-Chancellor." 13The university submits that if its power to extend Professor Walker's appointment as Dean was exercisable by the Vice-Chancellor, any reference to the alleged intention of the "others" in paragraph 106CG can have no relevance. The university is concerned that the pleading is intended to allege a conspiracy without saying so in terms. In such circumstances the university contends that Professor Walker should at the very least be required to identify the alleged "others" and specify the precise basis on which their intention is said to be relevant, including a precise articulation of the material facts on which she relies and from which their intention can allegedly be inferred. 14The university accordingly complains that any reference to these unidentified "others" should not be permitted. 15The university takes special exception to a particular pleading technique adopted in the further amended statement of claim. That is the device of incorporating factual matters upon which Professor Walker proposes to rely into her pleading by reference to what is contained in her statement of evidence. Several objections to the relevance of this material are referred to in the university's written submissions, including the contention that some of the material in the statement that is referred to in this way is scandalous and embarrassing. Paragraph 32.13 of Professor Walker's statement is singled out for special mention in this regard. 16The university submits that what the draftsman of the further amended statement of claim has done amounts to "a most unfair way of conducting litigation" that fails properly to articulate precisely the case that Professor Walker says the university has to meet. For example, at the end of paragraph 106CG(k), it states that "[f]urther particulars and evidence of these matters are set out in paragraphs 33.1 to 33.7 of Professor Walker's Principal Statement and the documents identified thereunder". 17Several other detailed examples are referred to by the university in aid of that submission. For example, each of sub-paragraphs 106CG(b), (g), (h), (i), (j), and (k) purport to provide further particulars by reference to paragraphs of Professor Walker's statement. In the case of proposed 106CG(b), the further particulars are provided by reference to paragraphs 23.1 to 23.62 of the statement and the "Plaintiff's Tender Documents referred to and identified in those paragraphs." That comprises over 29 pages of "evidence" in Professor Walker's statement and 215 pages of primary documents in the tender documents. This is said to be an entirely inappropriate manner in which to particularise a claim. The university contends that the matters referred to in the sub-paragraphs to paragraph 106CG do not either alone or in combination provide any sufficient rationale or basis for the inference that there is a connection between the decision whether to extend Professor Walker's appointment as Dean beyond December 2011 and the matters referred to in paragraph 106CG(a) to (l). 18The university also objects to paragraph 116G, which is essentially in the same form as paragraph 106CG, and cross-refers to paragraph 106CG and its particulars. Moreover, paragraph 116G only makes an allegation concerning Dr Spence's intention, whereas the particulars to which it refers relate to Dr Spence's intention and the intention of the unidentified "others". 19The university also objects to certain words in paragraph 116I. The parts objected to seek to raise a breach of contract claim in the context of an estoppel. The basis of that breach of contract claim is not sufficiently articulated.

Principles relating to amendments 20The Court has the power to grant leave to amend pursuant to s 64 of the Civil Procedure Act 2005. In exercising the power in relation to amendments, the Court must seek to act in accordance with the dictates of justice (see s 58(1)) and to consider ss 56 and 57 together with the matters listed in s 58(2)(b). When considering whether or not to grant leave to amend a pleading, it is relevant to consider the task the pleader is trying to achieve. In Forrest v ASIC [2012] HCA 39; (2012) 291 ALR 399 at [27], French CJ, Gummow, Hayne and Kiefel JJ said: "The task of the pleader is to allege the facts said to constitute a cause of action or causes of action supporting claims for relief. Sometimes that task may require facts or characterisations of facts to be pleaded in the alternative. It does not extend to planting a forest of forensic contingencies and waiting until final address or perhaps even an appeal hearing to map a path through it." 21A Court will not allow an amendment if it is so obviously futile that it would be liable to be struck out if it had appeared in the original pleading: McGuirk v University of New South Wales [2009] NSWSC 1424 at [18]; National Australia Bank v Priestley [2012] NSWSC 387 at [7]. Ritchie's Uniform Civil Procedure at [64.10] refers to the following propositions: "Four propositions have generally been regarded as defining the limits of the general discretion to grant leave to amend. These are: · the application for leave to amend must be made for a proper purpose; · the proposed amendment must be proper as to both substance and form - and not liable to be struck out; · the amendment must not cause undue prejudice to the other party; and · the amendment must be consistent with the 'dictates of justice'." 22A helpful series of principles in relation to pleadings, particulars and amendments were set out by Johnson J in McGuirk at [21]-[35]. His Honour noted the following propositions: (a) The function of pleadings is to state with sufficient clarity the case that must be met by a defendant. In this way, pleadings serve to define the issues for decision and ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her. (b) The issues defined in the pleadings provide the basis upon which evidence may be ruled admissible or inadmissible at trial upon the ground of relevance. (c) Pleadings provide the structure upon which interlocutory processes, such as discovery, are governed. (d) Proper pleading is of fundamental importance in assisting courts to achieve the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings. (e) Where application is made by a party for leave to amend pleadings, the court should have regard to considerations of case management, cost and delay. (f) The need for clarity, precision and openness in the conduct of litigation and the responsibility of parties and their legal representatives therefore flows most clearly from the statutory duty of a party and the duty in civil proceedings to assist the court to further the overriding purpose to facilitate the just, quick and cheap resolution of the real issues in dispute. The need for clarity, precision and openness as part of this co-operation has been emphasised in the context of ambush or surprise. (g) Not only must the pleading inform the defendants of the case they must meet now, but it must clearly set out the facts which the plaintiffs must assert to make good their claim with sufficient particularity to enable any eventual trial to be conducted fairly to all parties. Vague allegations on very significant matters may conceal claims which are merely speculative. If this be not the case, the plaintiffs must put their allegations clearly. (h) A pleading is embarrassing where it is unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him. (i) An exhaustive list of situations in which a pleading may be embarrassing includes a pleading that is susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense. (j) A pleading may be embarrassing even though it contains allegations of material facts sufficient to constitute a cause of action, if the material facts alleged are couched in expressions which leave difficulties or doubts about recognising or piecing together what is referred to. (k) Although the pleading of a conclusion may, in some circumstances constitute a material fact, nevertheless, the pleading will be embarrassing if allegations are made at such a level of generality that the defendant does not know in advance the case it has to meet. In such a case, the appropriate remedy is to strike out the pleading rather than to order the provision of particulars, as it is not the function of particulars to take the place of the necessary averments in a pleading. 23In Northam v Favelle Favco Holdings Pty Ltd (NSWSC, 1 and 7 March 1995, unreported), Bryson J said: "A pleading may be embarrassing even though it does contain allegations of material facts sufficient to constitute a cause of action, if the material facts alleged are couched in expressions which leave difficulties or doubts about recognising or piecing together what is referred to, or if imprecise or slang words are used with unduly broad ranges of possible meanings or without clear meanings. What is referred to must be clearly stated showing, as appropriate, when and where an event happened, who participated, what was said, what was the relevant effect of any document and so forth. It is not fair to require a defendant to flesh out general expressions or indirect allusions by piecing together information in other documents such as affidavits or experts' reports. He might get it wrong, and the greater the complexities are, the more probable it is that he will understand what is alleged in some different way to what the plaintiffs will rely on. Procedural justice can be upset just as much by opportunistic advocacy exploiting a choice among several possibilities as by an ambush from complete concealment. In the world of practicalities a defendant is unlikely to receive much protection when evidence is tendered which is an available meaning of a pleading if he has not attacked the pleading at an interlocutory stage." 24None of these statements of principle was in dispute.

Prayers 1 and 2 of the university's notice of motion and the Deed of Release 25Before the manifold disagreements and disharmony between the parties had degenerated into the current litigation, several things occurred. One of those was the execution of a deed of release dated 10 December 2007. The deed does not operate as a complete bar to Professor Walker's claims in these proceedings. However, the university contends that certain paragraphs of the further amended statement of claim are not maintainable by Professor Walker because they do fall within the express terms of the release created by that deed. The deed therefore becomes important in the context of the current applications and its presently relevant terms should be noted. They are as follows: " BACKGROUND A Professor Walker is employed by the University as Dean of the Sydney Conservatorium of Music (Dean). B On 6 July 2007, Professor Don Nutbeam, Provost and Deputy Vice Chancellor of the University as acting Vice Chancellor (Provost) informed Professor Walker that her employment was suspended (Suspension) pending the investigation of a number of allegations made against her, including allegations of plagiarism and breach of University policies and the allegations referred to in the letter from the Provost to Kim Walker dated 6 July 2007 (Allegations). C The Provost appointed Anthony Britt of Counsel to investigate and Report on the Allegations (Investigation) and requested that the University's Audit, Risk Management and Assurance Unit conducted an audit of staff appointment processes at the Sydney Conservatorium of Music from 1 July 2004 to 30 June 2007 (Audit). The findings of the Investigation are set out in Mr Britt's report dated 6 September 2007 (Britt Report). D After consideration of the Britt Report, the University reinstated Professor Walker as Dean on 17 September 2007 and decided to take no further action against Professor Walker regarding the Allegations. ... F Professor Walker has made a range of claims against the University regarding the Investigation and the Suspension as well as in relation to the maintenance of confidentiality of the Britt Report and a failure on the part of the University to discipline members of the staff of the Conservatorium of Music who have made public comment in respect of the Suspension or the Allegations. The University has denied liability to Professor Walker. ... H Professor Walker and the University, without admitting liability, have reached agreement on the terms set out in this deed. ... 4 Obligations of the University 4.1 Payment and public statement by the University The University must: (a) ... (g) act in utmost good faith, and take all reasonable steps to ensure that the principal officers of the University act in utmost good faith in relation to Professor Walker and not conduct themselves in a manner likely to destroy or seriously damage the employment relationship between Professor Walker and the University, subject to the observance by Professor Walker of her obligations to the University as an employee as well as of the University's rules and policies; ... 5 Release (a) Professor Walker releases the University against any Claims by her against the University wherever and however arising, arising out of (i) the Allegations; (ii) the Suspension; (iii) the Investigation; (iv) the Britt Report, including the maintenance of the confidentiality of the Britt report; and (v) the University's failure to issue a direction to date to Associate Professor Peter McCallum or other members of the Sydney Conservatorium of Music to not make any adverse comments, publicly or otherwise about the Suspension and Allegations, except for any Claims regarding any act or omission by the University in relation to or arising out of the conduct hereafter by the University as a result of: the investigation into the complaint by Professor Walker about Associate Professor Peter McCallum and Dr Stephanie McCallum in her letter to the Vice Chancellor dated 25 September 2007. (b) the University releases Professor Walker against any Claims wherever and however arising, arising out of the Circumstances; and (c) the parties agree that the terms of this deed may be pleaded by either party as a bar to any Claims, in respect of any matter of the subject of a release in this deed. ... 1 Dictionary In this deed: ... Claims means all present and future allegations, actions, applications, causes of actions claims, complaints, demands, disciplinary action, notification of external regulatory bodies, suits, proceedings, liabilities, sums of money, damages, debts due, determinations, inquiries, judgments, verdicts, expenses and costs: (a) at law; (b) in equity; (c) arising under any statute, regulation or other legislative instrument; or (d) arising under any award, certified agreement, enterprise agreement or other instrument made or approved under any law." 26The university submitted that paragraphs 20-30 and 101 should be summarily dismissed or struck out. These paragraphs are reproduced in the Second Schedule to these reasons. It contended that the effect of the deed of release was that these paragraphs were frivolous and vexatious, disclose no reasonable cause of action and amount to an abuse of the process of the Court. 27The university referred in some detail to General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125 at 129 and observations in Batistatos v RTA [2006] HCA 27;(2006) 226 CLR 256 at [46], suggesting that the statements in General Steel should not be given "canonical force". 28The university submitted that UCPR 13.4 imposed a lower threshold than the General Steel test. As Hammerschlag J observed in Simmons v Protective Commissioner of NSW [2012] NSWSC 455 at [28]: "...there is a compelling argument that, having regard to the specific wording of UCPR Pt 13 r 13.4(1)(b) and to the provisions of s 56(1) and (2) of the Civil Procedure Act 2005, it is not incumbent on an applicant under this particular rule to establish certainty of outcome, but rather that the applicable test is whether a defendant has demonstrated that a plaintiff's case has no reasonable prospects of success." 29In Asuzu v Council of the New South Wales Bar Association [2012] NSWCA 406 at [117], Ward JA noted Hammerschlag J's suggestion that the General Steel test "has been modified by the current legislative regime in relation to the conduct of litigation in this Court." Her Honour did not need to determine the merits of that suggestion in the case before her, however, because the General Steel test had been satisfied. 30The university submitted that it should not be necessary for me to decide whether UCPR 13.4 imposes a lower threshold than the General Steel test because that test is satisfied in this case. However, the university maintained that the test articulated in Simmons meant that UCPR 13.4 imposes a lower threshold than General Steel. 31Specifically by reference to the impugned paragraphs, the university maintained that they are impermissible in view of the terms of the deed of release. By its solicitor's letter dated 27 January 2012, the university sought an explanation as to how Professor Walker's allegations were maintainable given the terms of the deed. Her solicitor's reply dated 10 February 2012 provided Professor Walker's response: "The matters pleaded in paragraphs 23, 28 and 30 are not Claims within the meaning of the Deed; further they do not arise out of the specific matters listed in sub-clauses 5(a)(i), (ii), (iii), (iv) or (v) of the Deed and are not the subject of the release. Paragraph 23 and the breaches of the Implied Trust and Confidence term and the Implied Good Faith term relate to the University's (Professor Nutbeam's) failures and breaches before the 'Suspension' and 'Investigation' and 'Britt Report' and do not arise out of these matters or out of the 'Allegations'." 32The university maintains that such a response is "untenable". It developed the following arguments in relation to the proper interpretation of the deed of release. 33Clause 5(a) refers to any claims by Professor Walker against the university "wherever and however arising, arising out of" various matters. The expression "arising out of" is usually given a wide meaning: Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160 at 165; Shepherds Producers Co-operative Ltd v John Scott Lamont [2009] NSWSC 294 at [13] - [19]; cf Rinehart v Welker [2012] NSWCA 95 at [123] - [124]. I was also referred to the decision of Refschauge ACJ in Wagdy Hanna and Associates Pty Ltd v National Library of Australia [2012] ACTSC 126 at [309] - [315]. This expression should be given a wide meaning in this instance, particularly given its context and the immediately preceding words "wherever and however arising". According to the university's submission, all of the objectionable allegations arise out of matters referred to in clause 5(a) of the deed of release. 34In addition, the relevant paragraphs are within the broad definition of "claim". As will be apparent, "claims" include "all present and future allegations", together with "causes of action", "claims" and "complaints". Each of paragraphs 20 to 30 and 101 are "claims" within the meaning of the deed of release. 35Further, Professor Walker claims damages in relation to these allegations. By way of example, Professor Walker alleges that: "The 2007 Suspension and the manner of which, the subsequent Britt Investigation, the uncontrolled and unsubstantiated allegations of plagiarism and the attendant publicity... have led to widespread publicity adverse to Professor Walker and calculated to harm her reputation as a university administrator and musician nationally and internationally. ..." 36In addition, paragraph 2(ii) of Professor Walker's reply dated 21 March 2012 is as follows: "In reply to paragraphs 23(d) and (e), 24(b) and (c), 28(c) and (d), 30(c) and (d) and 31(c), says that she does not make the claims in those paragraphs or otherwise in this Amended Statement of Claim within the meaning of the Deed and that the Deed does not on its true construction operate to extinguish her claims in this Amended Statement of Claim or any of them and that the Defendant is not entitled to plead deed as a bar to those claims or any of them." 37Paragraphs 20 to 22 plead that the university received various allegations, which were reported in the press to include plagiarism, and that on 6 July 2007 it suspended Professor Walker "pending completion of a proposed investigation of the allegations against her". These paragraphs contain allegations that arise out of the "Allegations" and the "Suspension" as defined in the deed. In the university's submission, these paragraphs are therefore the subject of the release granted by Professor Walker pursuant to clauses 5(a)(i) and (ii) of the deed. 38Next, the conduct alleged in paragraph 23 is also said to fall within the scope of the deed of release. The allegation that the university did not have proper grounds, and was not entitled, to suspend Professor Walker is an allegation that arises out of the Suspension and the Allegations as defined. It is therefore the subject of the release in clauses 5(a)(i) and (ii) of the deed. 39The allegation in paragraph 23(a) is that the university breached alleged contractual terms by not following proper procedure in dealing with the allegations in paragraphs 20 and 21. That is said to be an allegation that arises out of the Allegations, the Suspension, the Investigation and the Britt Report. It is therefore the subject of the release in clauses 5(a)(i)-(iv) of the deed. 40The allegation in paragraph 23(b) is that the university breached alleged contractual terms by failing to provide Professor Walker with details of the allegations or the identity of the people making them. That is said to be an allegation that arises out of the Allegations. It is therefore the subject of the release in clause 5(a)(i) of the deed. 41The allegation in paragraph 23(c) is that the university breached alleged contractual terms by requesting Professor Walker to stand aside without providing her with details of the allegations, the identity of those making them or an opportunity to respond. That is said to be an allegation that arises out of the Allegations. It is therefore the subject of the release in clause 5(a)(i) of the deed. 42Professor Walker's allegation in paragraph 23(d) is that the university breached alleged contractual terms by purporting to suspend her. That is said to be an allegation that arises out of the Suspension. It is therefore the subject of the release in clause 5(a)(ii) of the deed. 43Finally, the allegation in paragraph 23(e) is that the university breached alleged contractual terms by appointing Mr Britt to conduct an investigation into the allegations. That is said to be an allegation that arises out of the Allegations, the Investigation and the Britt Report. It is therefore the subject of the release in clauses 5(a)(i), (iii) and (iv) of the deed. 44The allegation in paragraph 24 is that Professor Walker has "suffered serious and substantial damage" as a result of "the wrongful purported 2007 Suspension" and alleged breaches of contract, presumably those alleged in paragraph 23. As to "the wrongful purported 2007 Suspension", that is an allegation that arises out of the Suspension. It is therefore said to be the subject of the release in clause 5(a)(ii) of the deed. Given the apparent reference to paragraph 23, the allegations in the balance of paragraph 24 are within the scope of the deed for the same reasons as paragraph 23. 45The allegations in paragraph 25 relate to the appointment of Mr Britt to investigate the allegations, Mr Britt's investigation and the Britt Report. These allegations arise out of the Allegations, the Investigation and the Britt Report. They are therefore said to be the subject of the release in clauses 5(a)(i), (iii) and (iv) of the deed. 46Paragraphs 26 to 28 allege that on 18 September 2007 the suspension was revoked and Professor Walker returned to work. Following revocation of the suspension, the university issued a press release that did not state the true substance or effect of the investigation or the Britt Report and was therefore misleading or deceptive. By failing to issue an adequate press release "in respect of the revocation of the purported 2007 Suspension" and by issuing the press release and an email, the university is said to have breached alleged contractual terms and engaged in misleading or deceptive conduct. 47These are said to be allegations that arise out of the Allegations, the Suspension, the Investigation and the Britt Report. They are therefore the subject of the release in clauses 5(a)(i)-(iv) of the deed. Further, pursuant to clause 4.1(c) and (d) of the deed, the university agreed to issue a public statement and not otherwise comment in a manner inconsistent with that statement. 48Paragraphs 29 and 30 allege that the university failed to take reasonable steps to maintain the confidentiality of the Britt Report and the Investigation. These are said to be allegations that arise out of the Allegations, the Investigation and the Britt Report. They are therefore the subject of the release in clauses 5(a)(i), (iii), (iv) and (v) of the deed. It will be recalled that clause 5(a)(iv) refers to "the Britt Report, including the maintenance of the confidentiality of the Britt Report". 49The university maintained in all these circumstances that paragraphs 20-30 and 101 (together with any reliance on those paragraphs by cross-reference) should be dismissed pursuant to UCPR 13.4. Alternatively, those paragraphs should be struck out pursuant to UCPR 14.28. 50For her part Professor Walker reiterated what was said in her solicitor's letter to the university dated 10 February 2012. The letter contained the following material which is urged as a submission in the present context: "(1) We do not agree with your remarks. On its true construction the release in clause 5 of the Deed of 10 October 2007 does not apply in respect of the matters to which you object. The matters pleaded in paragraphs 23, 28 and 30 are not Claims within the meaning of the Deed; further they do not arise out of the specific matters listed in sub-clauses 5(a)(i), (ii), (iii), (iv) or (v) of the Deed and are not the subject of the release. Paragraph 23 and the breaches of the Implied Trust and Confidence term and the Implied Good Faith term relate to the University's (Professor Nutbeam's) failures and breaches before the "Suspension" and "Investigation" and "Britt Report" and do not arise out of these matters or out of the "Allegations". Likewise, the failure to issue an appropriate media release as pleaded in paragraph 28 Implied Trust and Confidence term and the Implied Good Faith term and Express Term 4.1(g) of the December 2007 Deed are not within "Claims...arising out of" any of the specific matters listed in sub-clauses 5(a)(i), (ii), (iii), (iv) or (v) of the Deed and are not the subject of the release. The facts and matters pleaded in paragraph 29 are within the specific exclusion from the release in the last paragraph of sub-clauses 5(a) of the Deed and are not the subject of the release. Consequently, the facts and matters pleaded in paragraph 30 are not within "Claims...arising out of" any of the specific matters listed in sub-clauses 5(a)(i), (ii), (iii), (iv) or (v) of the Deed and are not the subject of the release. Further, any ambiguity in the construction of the Deed would require resolution on the matrix of facts surrounding it at the time of its execution. (2) As paragraphs 101 to 105, 116, 117, 121, 122, and 124 make clear, the Plaintiff does not seek damages or compensation arising out of any matters within the release, and indeed in respect of any matters occurring before the date of the Deed except for the failure to issue a timely and appropriate media release, or matter within the express exclusion in the release. The fragile state of the Plaintiff's reputation after the Deed is a matter which can be relied upon in relation to damages from causes of action arising after the date of the Deed. (3) Breaches of the Implied Trust and Confidence term and the Implied Good Faith term and Express Term 4.1(g) of the December 2007 Deed after the execution of the Deed are not within the terms of the release in the Deed. (4) Finally, and alternatively to the above, if it is pleaded in defence that the matters pleaded in paragraphs 31 to 34 of the Statement of Claim do fall within the release in the Deed, the Plaintiff will plead in reply that the University should be prevented from relying on the release in respect of the matters pleaded as in the light of its conduct subsequent to the Deed, the connection of the matters pleaded in paragraphs 31 to 34 with that subsequent conduct and the damage recoverable in respect of that subsequent conduct, to permit the release to have that effect would be unconscionable, and would permit the release to be used as an instrument of equitable fraud to limit damages otherwise recoverable in respect of conduct subsequent to the Deed. (5) It is apparent from the above that the matters of law and related matters of fact which the Court would be required to resolve on a strike out application can only be determined at trial and the course you propose is inappropriate and may only delay a trial and involve unnecessary expense." 51Professor Walker argued that the university's submissions ignored the well-established meaning of "arising out of" as one requiring a factual causal connection to be established between the relief claimed and the specified and defined circumstances in clause 5 of the deed: Smith v Australian Woollen Mills Ltd [1933] HCA 60; (1933) 50 CLR 504; Re Hamilton-Irvine and the Companies Act 1985 (1990) 94 ALR 428 at 432-433; Government Insurance Office of NSW v RJ Green and Lloyd Pty Ltd [1966] HCA 6;(1966) 114 CLR 437 at 445; State Government Insurance Commission v Stevens Brothers Pty Ltd [1984] HCA 32; (1984) 154 CLR 552 at 555; Dickinson v Motor Vehicle Insurance Trust [1987] HCA 49; (1987) 163 CLR 500 at 505. 52Professor Walker contended that clause 5 of the deed must be construed in the light of its other provisions and in particular the defined "Allegations", "Suspension", "Investigation", "Britt Report", as well as clause 4.1(g) and the factual matrix surrounding the entry into the deed. The university's arguments are said to have ignored the provisions of the deed affecting clause 5 and the matrix. The definition of "claim" cannot by its terms, considered in isolation, be used to override the requirement in clause 5 that claims must "arise out of" the specified circumstances. 53Professor Walker also suggested that the paragraphs to which the university objects plead the facts and matters which must necessarily be established to enable the Court to construe the deed. The facts and matters pleaded in paragraphs 20 to 26, along with the facts and matters pleaded in paragraphs 27 to 30, plead the matrix of facts surrounding the entry into the deed, which is itself pleaded in paragraphs 32 and 33 and Confidential Exhibit A. 54Professor Walker does not claim damages or relief in respect of the facts and matters pleaded in paragraphs 20 to 26. She claims damages in respect of the facts and matters pleaded in paragraphs 27 and 28. A failure to issue a proper and sufficient press release after the lifting of the Suspension as defined is a matter not arising out of the Suspension. Paragraphs 29 and 30, concerning or relating to the conduct of Associate Professor McCallum and his wife and their possession and use of the Britt Report at least are matters specifically exempted from the release in clause 5. 55Professor Walker's claims for damages and relief do not arise out of the defined or specified matters listed in clause 5(a) of the deed. Her claims for damages and relief are claims for damages and other relief arising from breaches of the express obligation of "utmost good faith" in clause 4.1(g) and of implied obligations of mutual trust and confidence and good faith in her Third Employment Agreement, constituted by conduct of the university and its officers occurring after the deed was entered into (except for the McCallum conduct specifically exempted). Professor Walker submitted that the definitions and release in clause 5 of the deed could not reasonably, or even arguably, be construed to override the obligations in clause 4.1(g), or her right to bring proceedings claiming damages for the breach of those obligations. 56Professor Walker perceives the university to contend that the definition of "claims" in the deed overrides the temporal requirements of the circumstances defined in clause 5(a) and the necessity for a causal connection to be established so as to prevent her from claiming damages for that subsequent and different conduct by the university, including under clause 4.1(g) itself. According to her submission, a consideration of the deed against the matrix of facts surrounding the parties' entry into it clearly shows this to be an untenable construction. Even if there were an ambiguity caused by the definition of "claims", that ambiguity is resolved by the factual matrix. 57Professor Walker contends moreover that clause 5 is in the nature of an exclusion clause and on well-established principles is to be construed narrowly. Any ambiguity should be resolved against the university. 58Professor Walker went as far as to suggest that, if the university's contentions were well founded, the insertion into the further amended statement of claim of the following paragraph would solve the problem or allay any concerns about whether or not the subject paragraphs were foreclosed by the terms of the deed: "33A The Plaintiff does not claim damages or other relief arising out of the facts and matters pleaded in paragraphs 20 to 26 above but does claim damages in respect of the facts and matters pleaded in paragraphs 27 and 28 above and 29 and 30 above and says she is not barred by clause 5 of the Deed being Confidential Exhibit A. Particulars The facts and matters pleaded in paragraphs 20 to 26 above along with the facts and matters pleaded in paragraphs 27 and 28 above and 29 and 30 above plead the matrix of facts surrounding the entry into the Deed of Release. The facts and matters pleaded in paragraphs 20 to 26 above show the state of the Plaintiff's reputation along with the facts and matters pleaded in paragraphs 27 and 28 above and 29 and 30 above at the time of the further breaches of the Implied Trust and Confidence Term and the Implied Good Faith Term of the Third Employment Agreement and of clause 4.1(g) of the Deed dated 10 December 2007 pleaded below. Professor Walker's claim for aggravated damages for the further breaches of the Implied Trust and Confidence Term and the Implied Good Faith Term of the Third Employment Agreement and of clause 4.1(g) of the Deed dated 10 December 2007 pleaded below include aggravation arising from the Defendant's persistence in aggravating conduct by those further breaches after the facts and matters pleaded in paragraphs 20 to 26, 27 and 28 above and 29 and 30 above, and the entry into the Deed dated 10 December 2007." 59The university rejected the suggestion that this would meet its concerns. 60Professor Walker submitted that it was clear from the pleading and particulars, and the matters covered in the letter, that in respect of paragraphs 20 to 30 and 101 there is no case for summary judgment or strike out under UCPR 13.4 or 14.28. She contended that these paragraphs were clear and should not be the subject of disposition in either of these ways. The case put forward in these paragraphs could not be described as "so obviously untenable that it cannot possibly succeed", "manifestly groundless" or "hopeless", or as having "no reasonable prospects of success". The issues raised in those paragraphs involve mixed questions of fact and law or pure questions of fact, which cannot be determined on a summary judgment or strike out application. Professor Walker submitted that I could not have the high degree of certainty about the ultimate outcome of the matter if it were to go to trial to justify the relief sought.

Prayer 3 of the university's notice of motion 61The university seeks an order that paragraphs 111 and 114 be struck out, (together with any cross-references to those paragraphs). Paragraph 111 (with its proposed amendment) is essentially in the same form as paragraph 106CG and cross-refers to paragraph 106CG and its particulars. As noted above, a further defect in paragraph 111 (as amended) is said to be that the allegation it makes is only in relation to Dr Spence's intention whereas the particulars to which it refers relate to Dr Spence's intention and the intention of the unidentified "others". 62Paragraph 114 depends on paragraph 111. The university contends that if paragraph 111 is struck out, then the same fate must follow for paragraph 114.

Prayer 3A of the university's notice of motion 63Paragraph 121 alleges that the university breached a duty of care allegedly owed to Professor Walker in negligence, and in particular that it failed to exercise prudence, caution and diligence and due care to avoid or minimise adverse consequences to Professor Walker in her appointment and employment as Dean and Professor, failed to provide a safe system and place of work and failed to prevent bullying, harassment and victimisation. The only particulars given of paragraph 121 are that the university breached the alleged duty of care "[b]y the acts and omissions constituting the conduct pleaded in paragraphs 101 to 105 above". No other particulars have been provided despite requests from the university. 64Paragraphs 101 to 105 contain allegations of misleading and deceptive conduct, not negligence. The university contends that paragraph 101 is covered by the deed of release. Paragraphs 102 and 103 relate to two specific representations that Professor Walker alleges the university Vice-Chancellor made on 4 August 2008 in relation to the subject matter and character of what subsequently became the Gyles Review. 65The university submitted that paragraphs 104 and 105 were "almost unintelligible". These paragraphs are reproduced in the Fourth Schedule to these reasons. Together they occupy more than three pages of the further amended statement of claim and appear to allege that the university "held out" Professor Walker in a particular manner, and then engaged in some conduct inconsistent with that holding out, which by some means constituted misleading or deceptive conduct. 66The general principles in relation to pleadings and particulars have already been discussed. The university contends that paragraphs 104, 105 and 121 breach those principles and fail to comply with the relevant UCPR requirements. The university submits that they "merely... mouth general phrases current in analysing the tort of negligence and leave it to the [university] to establish why those general formulae would be insufficient to bring [Professor Walker] success". 67UCPR 15.5 provides as follows: "(1) The particulars to be given by a pleading that alleges negligence (whether contributory or otherwise): (a) must state the facts and circumstances on which the party pleading relies as constituting the alleged negligent act or omission, and (b) if the party pleading alleges more than one negligent act or omission, must, so far as practicable, state separately the facts and circumstances on which the party relies in respect of each alleged negligent act or omission." 68Paragraph 121 fails to state the facts and circumstances on which Professor Walker relies as constituting the alleged negligent acts or omissions. The university submits that it merely contains "general phrases" devoid of any particular or adequate content and that paragraphs 104, 105 and 121 should all be struck out. 69Professor Walker anticipates that the university's application to strike out paragraphs 104, 105 and 121 proceeds on the basis that insufficient particulars of negligence have been provided. She has pointed out that the university did not request further particulars of negligence of paragraph 121 in its original request for particulars on 27 January 2012. Professor Walker's solicitor's letter of 10 February 2012 responded to that request. In due course the university filed and served its verified and certified defence on 2 March 2012. The first time the university made any request for particulars of negligence of paragraph 121 was by letter dated 24 December 2012, requesting further particulars of various paragraphs and matters including (for the first time) paragraph 121. 70A second letter on 24 December 2012 appointed 23 January 2013 for a reply. That date was not convenient to Professor Walker's counsel. Professor Walker has in any event indicated that she remains prepared to supply such particulars as may be necessary to clarify any concerns that the university continues to have concerning these paragraphs.

Consideration 71The current pleading is the amended statement of claim. It is a substantial document of some 60 pages in length containing 125 paragraphs. Many of the paragraphs also contain large numbers of separately enumerated particulars. The proposed further amended statement of claim is no less daunting, running to some 85 pages or so. It is longer by the paragraphs referred to in the First Schedule. The proposed amendments that are reproduced in that schedule, and the other schedules as well, give a fair taste of the style in which Professor Walker's case has been articulated. The university has not, however, mounted any general assault upon the pleadings because they are arguably prolix or unnecessarily repetitive or the like. Indeed, the university has filed a very detailed defence to the amended statement of claim that runs itself to over 40 pages. On one view, these matters create a relevant context within which to consider the current disputes. 72Paragraph 106CG occupies 18 pages of the hard copy version of these reasons. It is a substantial article by any measure. It pleads that the university had formed an intention by as early as some time in 2008 and as late as June 2010 not to extend Professor Walker's appointment as Dean beyond 31 December 2011. The relevant intention was that of Dr Spence. Any reference to "others" is not explained and is irrelevant. The university takes exception to the reference to these "others" and in my view that reaction is well founded. If paragraph 106CG is to be permitted, it should in any event be in a form that does not include the words "and others" wherever appearing in that setting. 73The next objection relates to the technique of attempting to incorporate into the pleading certain paragraphs of Professor Walker's evidentiary statement by reference to such paragraphs in the body of the statement of claim. I pause to observe that Professor Walker's statement is also an impressive document of nearly 200 pages, which in turn makes additional references to other documents in her tender bundle. There are over 300 of these documents and many of them are lengthy. 74References to these paragraphs are preceded by the words "further particulars and evidence of these matters are set out in" the nominated paragraphs. This is what the university has referred to as "a most unfair way of conducting litigation" because it fails to articulate precisely the case it has to meet. However, a consideration of the paragraph and those words rather suggests to me that the reference to the evidence is the only meaningful reference conveyed by those words. Put at its highest, a failure to include references to the paragraphs of Professor Walker's statement, either as the source of so called further particulars or of evidence about them, could not have drawn a valid complaint from the university. The reference is possibly helpful but is ultimately unnecessary and for that reason unexceptionable. 75A more fundamental objection as I see it lies in the complaint that the various subparagraphs of paragraph 106CG do not either alone or in combination provide any sufficient basis for the inference that they are in any way connected with the decision whether or not to extend Professor Walker's appointment as Dean beyond December 2011. This appears to be a complaint that Professor Walker has planted the metaphorical forest of forensic contingencies referred to in Forrest. However, an examination of the paragraph reveals a central and reoccurring theme that attempts to relate the incidents and events that Professor Walker considers were inimical to her authority and unfavourable to her position within the university, to the alleged formation or existence of Dr Spence's intention not to extend her appointment. The paragraph is frustratingly repetitive, with expressions such as "make it more probable than not" and "provides a strong and compelling inference" appearing regularly and arguably with very limited relevance. The thrust of what is contended is otherwise fairly clear, even if the structure of the pleading is tortuous and prolix. There is admittedly a factual overload, which is itself exacerbated by references to the paragraphs in Professor Walker's statement and the tender bundle documents, but these things do not in my view create any fundamental forensic difficulty. 76Paragraph 106CG does not fail the test of informing the university of the case it must meet. It also does not fail the test of setting out the facts that Professor Walker needs to establish to make good her claim. The contrary is true. The pleading is also neither vague nor does it promote a purely speculative claim. It is far too long and unnecessarily repetitive, but that does not invalidate it and in any event is not, perhaps charitably, the subject of complaint. The case Professor Walker seeks to maintain arises in the context of a set of facts and circumstances that are well known to both sides and where the room for factual disagreement is likely, although not certainly, to be small or at the periphery of relevance. The context from which the proceedings emerge is not that of strangers but of parties closely intertwined at close quarters. Professor Walker's allegations are not legally controversial, in the sense of being speculative or novel, even if the outcome of the proceedings remains the subject of a fierce contest. 77The university's complaint about the pleader's technique of incorporating factual material by reference to Professor Walker's statement has some merit, in the sense that it makes the statement of claim incapable of being understood without looking to another source of information. That is understandably frustrating and inconvenient. It may well be an unfortunate side effect of the fact that detailed statements were provided by Professor Walker at an early stage and the proposed amendments have come after that occurred. However, once again, the university does not complain that it has been left in a fundamentally forensically disadvantageous position by the adoption of this technique, and does not assert that the further amended statement of claim does not otherwise meet the requirements of a valid pleading because of it. Even if the university did make that complaint I would disagree with it. The author of Professor Walker's pleading has done no more than adopt by analogy the once well accepted technique of referring, for example, to a contract "for its true meaning and effect as if the terms thereof were herein more fully set forth". The extensive factual material that is referred to may make this approach seem cumbersome and unwieldy, but at least it has the advantage of limiting the further amended statement of claim to an almost reasonable length. 78It follows in my opinion that paragraph 116G is also unexceptionable and leave to amend to include that paragraph should also be granted. The same can be said of particular of damage C(bb). 79Paragraph 116I is in a different category. Far from overstating its complaints about this paragraph, the university has in my view failed to object to several problems with it. The paragraph appears out of nowhere like an orphan from the snow with no clear past and no certain future. The basis of the so-called estoppel is not stated and cannot easily be inferred. The paragraph leaves the university in the position of having to guess at what is intended and of being in any event unlikely to be able to do so with ease. It should not be required to do so at all. I would not grant leave to Professor Walker to include this paragraph among the proposed amendments. 80With respect to the university's application to strike out the paragraphs reproduced in the Second Schedule, I do not consider that it can be said that the case put forward in those paragraphs could be described as so obviously untenable that it cannot possibly succeed, or as manifestly groundless or hopeless or as having no reasonable prospect of success. The very force of the competing arguments mounted by the parties on this issue is such as to fortify my view in this respect. 81In large part the resolution of the question of whether or not the deed bars the claims turns upon a question of the construction of the deed. I do not consider that the true meaning of the deed, in light of the facts to which it is to be applied, permits of only one answer, or points convincingly, far less overwhelmingly, in only one direction. By way of example, the relationship between the express and continuing obligation upon the university of utmost good faith arising out of clause 4.1(g) of the deed and the release given by Professor Walker in clause 5 is neither simple nor obvious. Additionally, I am not satisfied that the word "hereafter", where it appears in the expression in clause 5(a) "except for any claims regarding any act or omission by the university in relation to or arising out of the conduct hereafter by the university" operates in a way that renders Professor Walker's claims, or all of them, untenable or hopeless. Moreover, the competing contentions and judicial opinions upon the meaning and application of the expression "arising out of" come into play both in the interpretation of the clause 5 release as well as in what the parties have described as "the carve out" of the release. 82By reference to whatever formulation of the test one proceeds, there is no basis in my view for the summary dismissal of this part of Professor Walker's claim. Nor are the impugned paragraphs in any way embarrassing or an abuse of process, in the light of the currently unresolved competing arguments with respect to the construction of the deed. 83The university's application with respect to paragraphs 111 and 114 should abide my conclusions with respect to paragraph 106CG. 84It has been contended on behalf of the university that paragraphs 104 and 105 are "almost unintelligible". I confess that these paragraphs are difficult to follow standing alone. Apart from the unfortunate structure of the paragraphs, which, despite their inordinate length, are blessed with only four full stops between them, it is very difficult to discern what, if any, cause of action they are intended to articulate. The paragraphs contain references to holding out, misrepresentations, various failures and conduct calculated to affect detrimentally or undermine Professor Walker's authority, powers and position as Dean. All or some of these allegations somehow then lead to the assertion that the university therefore engaged in misleading and deceptive conduct. The university's defence complained from the start that these paragraphs were vague and embarrassing. I think that there is little doubt that they are. An offer to save them by treating the paragraphs as particulars of the negligence allegation in paragraph 121 should not be accepted. 85Paragraphs 104 and 105 should be struck out. 86Paragraph 121 purports to plead a cause of action in negligence or breach of duty. It is not clear to me whether or not such an allegation is factually coextensive with the claim in contract or relies on additional matters. The particulars of negligence are in any event formulaic and uninformative. So much would appear to have been acknowledged by Queen's Counsel on behalf of Professor Walker during argument before me. I raised for consideration the idea that leave to replead this paragraph might be given if I came to the view that it should be struck out. I am of that view. If Professor Walker still maintains her enthusiasm for this portion of her claim, about which I make no comment, then leave to replead paragraph 121 should be given.

Orders 87I consider that the following orders should be made:

With the exception of paragraph 116I, and the words "and others" in paragraph 106CG wherever appearing, grant leave to Professor Walker to amend her current pleading to include and to rely upon the paragraphs referred to in the First Schedule.
Order that paragraphs 104, 105 and 121 of the current pleading be struck out.
Grant leave to Professor Walker to replead paragraph 121 in proper form if so advised.
Order that the costs of the motions be costs in the proceedings.

FIRST SCHEDULE 106A The Third Employment Agreement expressly provided as follows: 4.1 Position The University will continue to employ you as Dean of the Sydney Conservatorium of Music or in such other senior position reasonably determined by the University from time to time for a term which will end on the Proposed End Date unless terminated earlier or extended in accordance with this Agreement. 4.2 Extension of appointment as Dean The term of your appointment may be extended by mutual agreement. The University will notify you whether it wishes to extend the term of your appointment at least six months before the Proposed End date if practicable to do so. The terms of this Agreement will continue to apply to your appointment if it is extended beyond the Proposed End Date. 14 TERMINATION OF APPOINTMENT AS DEAN 14.1 Without limiting the capacity of either party to terminate your appointment in accordance with clause 16, your appointment as Dean may be terminated (without terminating your employment) at any time before the Proposed End Date by: (a) ... (b) the University giving you six month's notice;... 106B The University in exercising its powers to extend the term of Professor Walker's appointment as Dean of the Sydney Conservatorium of Music under clause 4.2 above and in terminating Professor Walker's appointment as Dean under clause 14.1 above was obliged to act and exercise those powers in good faith and in utmost good faith and to ensure that its principal officers including the Vice-Chancellor did so under and in accordance with the Implied Trust and Confidence Term and the Implied Good Faith Term of the Third Employment Agreement and Express Term 4.1(g) of the Deed of 10 December 2007. 106C In failing to seek agreement to extend and to notify its wish to extend the term of Professor Walker's appointment as Dean of the Sydney Conservatorium of Music under clause 4.2 above and in terminating Professor Walker's appointment as Dean under clause 14.1 as pleaded in paragraph 106 above the University failed to act and exercise those powers in good faith and in utmost good faith and to ensure that its principal officers including the Vice-Chancellor did so and breached the Implied Trust and Confidence Term and the Implied Good Faith Term of the Third Employment Agreement and Express Term 4.1(g) of the Deed of 10 December 2007. 106CA The breaches of the Implied Trust and Confidence Term and the Implied Good Faith Term of the Third Employment Agreement and Express Term 4.1(g) of the Deed of 10 December 2007 pleaded in paragraph 106C above and the failure of the University to act and exercise its powers in good faith and in utmost good faith and to ensure that its principal officers including the Vice-Chancellor did so arise from the facts and matters pleaded in and particularised under the following paragraphs 106CB to 106CG. 106CB The facts and matters pleaded in and particularised under paragraphs 13, 14.1, 14.2, and 15 to 19 above which are repeated. 106CC The University procured Professor Walker's entry into the Third Employment Agreement on an express understanding that and represented that she could at its expiry legitimately and realistically expect that in the absence of good reason the University would renew her appointment as Dean until the conclusion of the Conservatorium's centenary celebrations in 2015. Further Particulars The understanding and representation is set out in paragraph 19, and were conveyed and made in and by the conversation and email pleaded and particularised in and under paragraph 14.1, which conveyed the further representations pleaded in paragraph 14.2. 106CD The University was aware that Professor Walker expected to be offered an extension of her appointment as Dean until the conclusion of the Conservatorium's centenary celebrations in 2015. Further Particulars The University's awareness and that the officers so aware are self evident from the conversations pleaded and particularised in and under paragraphs 14.1, 14.2, 15 and 19 above. Further the University was made aware or demonstrated its awareness by the conversations and events set out in paragraphs 13.4, 13.12,13.14, 13.15, 13.16, 13.20 and 13.21 of Professor Walker's Statement of 22 June 2012, a copy of which with the Plaintiff's Tender Documents has been served on the solicitors for the defendant ("Professor Walker's Principal Statement"). 106CE The University was aware that it was likely that in the event Professor Walker was offered an extension of her appointment as Dean until the conclusion of the Conservatorium's centenary celebrations in 2015 she would accept that extension. Further particulars The University's awareness and that the officers so aware are self evident from the conversations pleaded and particularised in and under paragraphs 14.1, 14.2, 15 and 19 above. Further the University was made aware or demonstrated its awareness by the conversations and events set out in paragraphs 13.4, 13.12, 13.14, 13.15, 13.16, 13.20 and 13.21 of Professor Walker's Principal Statement, a copy of which with the Plaintiff's Tender Documents has been served on the solicitors for the defendant. 106CF The University was aware that it was likely that in the event Professor Walker became aware that she would not or was not likely to be offered an extension of her term as Dean until the end of the Conservatorium's centenary celebrations in 2015, that she would seek comparable employment overseas. Further particulars The University's awareness and that the officers so aware are self evident from the conversations pleaded and particularised in and under paragraphs 14.1, 14.2, 15 and 19 above. Further the University was made aware or demonstrated its awareness by the conversations and events set out in paragraphs 13.4, 13.12, 13.14, 13.15, 13.16, 13.20 and 13.21 of Professor Walker's Principal Statement, a copy of which with the Plaintiff's Tender Documents has been served on the solicitors for the defendant. 106CG From about the time of the appointment of Dr Spence as Vice-Chancellor in 2008, alternatively by about June 2010, it was the intention of the University by the Vice-Chancellor Dr Spence and others that the University would not extend Professor Walker's appointment as Dean beyond 31 December 2011 to 2015. This is to be inferred from the facts and matters pleaded in and particularised under the following sub-paragraphs: (a) The facts and matters pleaded in and particularised under paragraphs 93 to 98 above (relating to the failure to deal with Professor Walker's Complaint concerning Associate Professor Dr Peter McCallum in and subsequently to September 2007) which are repeated. (i) The University, by failing and continuing to fail to deal with Professor Walker's complaint properly and in accordance with the University's policy and procedures, and by condoning the undermining of Professor Walker by Associate Professor Dr Peter McCallum and Associate Professor Stephanie McCallum did not and demonstrated that it would not support Professor Walker as Dean of the Conservatorium, and a refusal, failure and unwillingness to support Professor Walker as Dean of the Conservatorium. (ii) The conduct pleaded is inconsistent with any intention to extend Professor Walker's appointment as Dean beyond 31 December 2011 to 2015, and when considered with the course of conduct and facts and matters pleaded in and particularised under sub-paragraphs (b) to (l) below make it more probable than not and provides a strong and compelling inference that it was the intention of the University that the University would not extend Professor Walker's appointment as Dean beyond 31 December 2011 to 2015 and had that intention from 4 August 2008 or at least November and December 2008. (b) The facts and matters pleaded in and particularised under paragraphs 60 to 84, 85 and 86 (relating to the establishment and process and result of the Gyles Inquiry and Report from August 2008 to December 2008) which are repeated. (i) By the conduct pleaded in each and all of sub-paragraphs 85 (a) to (h) and paragraph 86 and in particular by the conduct pleaded in paragraph 86, the University did not and demonstrated that it would not support Professor Walker as Dean of the Conservatorium, and a refusal, failure and unwillingness to support Professor Walker as Dean of the Conservatorium. (ii) The conduct pleaded is inconsistent with any intention to extend Professor Walker's appointment as Dean beyond 31 December 2011 to 2015, and when considered with the course of conduct and facts and matters pleaded in and particularised under sub-paragraphs (a) and (c) to (l) below make it more probable than not and provides a strong and compelling inference that it was the intention of the University that the University would not extend Professor Walker's appointment as Dean beyond 31 December 2011 to 2015 and had that intention from 4 August 2008 or at least November and December 2008. Further Particulars Further particulars and evidence are found in paragraphs 23.1 to 23.62 of Professor Walker's Principal Statement and in the Plaintiff's Tender Documents referred to and identified in those paragraphs. (c) The facts and matters pleaded in and particularised under paragraphs 88 to 97 above (relating to the unnecessary viola and violin fact finding in March and April 2009) which are repeated. (i1) The conduct of the University by the Vice-Chancellor Dr Spence in ordering the further fact finding and inquiry without any reasonable basis showed that the University did not and demonstrated that it would not support Professor Walker as Dean of the Conservatorium, and a refusal, failure and unwillingness to support Professor Walker as Dean of the Conservatorium, (iI) The conduct pleaded is inconsistent with any intention to extend Professor Walker's appointment as Dean beyond 31 December 2011 to 2015, and when considered with the course of conduct and facts and matters pleaded in and particularised under sub-paragraphs (a), (b) and (d) to (l) below make it more probable than not and provides a strong and compelling inference that it was the intention of the University that the University would not extend Professor Walker's appointment as Dean beyond 31 December 2011 to 2015 and had that intention from 4 August 2008 or at least November and December 2008.and in March and April 2009. (d) The facts and matters pleaded in and particularised under paragraph 87 above which are repeated. (i) The conduct of the University by the Vice-Chancellor Dr Spence in ignoring and by necessary inference refusing the express request to the Vice-Chancellor in the letter dated on or about 27 December 2009 from Professor Anne Boyd, Professor Imre Pallo, and 36 others to bolster and support Professor Walker as Dean, has clearly demonstrated a refusal, failure and unwillingness to support Professor Walker as Dean of the Conservatorium. (ii) The conduct, when considered with the course of conduct and facts and matters pleaded in and particularised under sub-paragraphs (a), (b), (c) and (e) to (l) below make it more probable than not and provides a strong and compelling inference that it was the intention of the University that the University would not extend Professor Walker's appointment as Dean beyond 31 December 2011 to 2015 and had that intention from 4 August 2008 or at least November and December 2008 and in December 2009. (e) The facts and matters pleaded in and particularised under paragraphs 99.1 to 99.3 and 100 above (relating to untrue accusations between May 20008 and February 2010 against Professor Walker concerning the closure of ACARMP) which are repeated. (i) The University, by failing and continuing to fail to take any steps to procure a retraction from Associate Professor McCallum or Professor Kenny and to correct their false and untrue statements and to correct the article in The Australian newspaper on 3 February 2010 and by its conduct has failed and refused to support Professor Walker as Dean, has clearly demonstrated a refusal, failure and unwillingness to support Professor Walker as Dean of the Conservatorium. (ii) The University's conduct, when considered with the course of conduct and facts and matters pleaded in and particularised under sub-paragraphs (a) to (d) and (f) to (m) below make it more probable than not and provides a strong and compelling inference that it was the intention of the University that the University would not extend Professor Walker's appointment as Dean beyond 31 December 2011 to 2015 and had that intention from 4 August 2008 or at least November and December 2008 and between 2008 and 2010 and subsequently. (f) The facts and matters pleaded in and particularised under paragraphs 99.4 and 99.5 and 100 above (relating to attacks on Professor Walker in the media in 2008 and 2009) which are repeated. The University knowing that Professor Walker was the subject of attacks in the media concerning her role as Dean apparently containing confidential information disclosed from a source within the Conservatorium or the University, and that Professor Walker considered herself bound by obligations of confidentiality to the University not to discuss these matters, failed to take any steps to protect Professor Walker's reputation both within and outside the University from attacks upon her as Dean or to act upon formal complaint made by her to the University. By its conduct the University has failed and refused to support Professor Walker as Dean of the Conservatorium, has clearly demonstrated a refusal, failure and unwillingness to support Professor Walker as Dean of the Conservatorium and its conduct, when considered with the course of conduct and facts and matters pleaded in and particularised under sub-paragraphs (a) to (e) and (g) to (l) below make it more probable than not and provides a strong and compelling inference that it was the intention of the University that the University would not extend Professor Walker's appointment as Dean beyond 31 December 2011 to 2015 and had that intention from and had that intention between 2008 and 2009 and subsequently. (g) The actions and failures of the University by the Vice-Chancellor and of the Vice-Chancellor and its other principal officers in permitting and confirming PMD Reviews of Stephanie McCallum between 2008 and 2011 not in accordance with the policy of the Conservatorium and the University, the promotion of Stephanie McCallum in or about November 2010 contrary to the decision of the Local Promotions Committee, and the failure to deal with Professor Walker's complaints about these matters as pleaded below. Particulars are provided by reference to paragraph numbers of Professor Walker's Principal Statement (WPS) which include reference to documents identified beneath a paragraph in the statement). (i) On or about 18 December 2007 Professor Walker notified Stephanie McCallum that performance was part of her 2007 PM&D Plan (WPS para 28.5). (ii) Sometime after January 2008, Stephanie McCallum's 2007 PM&D was carried out but the assessment papers were not sent to Professor Walker (WPS para 28.7) as they should have been and were signed by Professor Benrimoj a former Dean of Pharmacy working in the University's Office of Planning and Statistics under Mr Kotic (WPS paras 28.7 and 28.8). (iii) Between January and July 2009 Stephanie McCallum refused to accept qualified reviewers nominated by Professor Walker to carry out Stephanie McCallum's 2008 PM&D (WPS para 28.8). (iv) In about December 2009 the Office of General Counsel and the Director SydneyPeople (HR) determined that Stephanie McCallum's 2008 PM&D would not be carried out and directing Professor Walker as to the manner in which Stephanie McCallum's 2009 PM&D should be carried out (WPS para 28.9). This was not in accordance with usual PM&D procedures and Professor Walker complained to the Director SydneyPeople on or about 19 March 2010 (WPS para 28.10). The University ignored Professor Walker's complaint. (v) Prior to November 2010, the Conservatoriums' Local Promotions Committee, chaired by Professor Keith Howard and comprised of persons who had not been challenged by Stephanie McCallum and who did not include Professor Walker, unanimously determined that Stephanie McCallum should not be promoted to Associate Professor (Level D). In or about November 2010 the University by its Central Promotions Committee reversed. The Central Promotions Committee is appointed by the Provost and the Chairman of the Academic Board, Dr Peter McCallum, Stephanie McCallum's husband (WPS para 28.11-28.12). (vi) Professor Keith Howard formally complained to the Vice-Chancellor Dr Spence about the manner in which the decision of the Local Promotions Committee was overturned and requested the Vice-Chancellor give his careful attention to the complaint. The Vice-Chancellor did not consider or deal with the complaint but merely referred the complaint to the SCM Ethics Committee, which considered it was not the role of that committee to comment on decisions made by the Local Promotions Committee or the Central Promotions Committee (WPS paras 28.11 to 28.17). (vii) By its conduct in relation to the PM&Ds of Stephanie McCallum, by its failure, through the Director SydneyPeople, to consider Professor Walker's complaint in relation to the PM&Ds of Stephanie McCallum, and by its conduct in relation to the reversal of the decision of the Local Promotions Committee by the Central Promotions Committee and by the failure and refusal of the Vice-Chancellor to consider or appoint any appropriate person or body to consider Professor Howard's complaint, the University has failed and refused to support Professor Walker as Dean of the Conservatorium in the administration of the Conservatorium and the management of its staff, and has clearly demonstrated a refusal, failure and unwillingness to support Professor Walker as Dean of the Conservatorium and its conduct, when considered with the course of conduct and facts and matters pleaded in and particularised under sub-paragraphs (a) to (f) and (h) to (l) below make it more probable than not and provides a strong and compelling inference that it was the intention of the University that the University would not extend Professor Walker's appointment as Dean beyond 31 December 2011 to 2015 and had that intention from and had that intention between 2008 and 2010 and subsequently. Further particulars Further particulars and evidence of these matters is set out in paragraphs 28.6 to 28.18 of Professor Walker's Principal Statement and the documents identified thereunder. (h) The further actions and failures of the University by the Vice-Chancellor and of the Vice-Chancellor and its other principal officers in permitting and confirming PM&D Reviews of Maree Ryan and Michael Halliwell in about July 2008 not within the Conservatorium nor in accordance with the policy of the Conservatorium and the University and the failure to deal with Professor Walker's complaints about these matters as pleaded below. Particulars are provided by reference to paragraph numbers of Professor Walker's Principal Statement (WPS), which include reference to documents identified beneath a paragraph in the statement. (i) It was at all material times the standard policy and practice of the Conservatorium and the University that PM&Ds for Conservatorium Staff should be conducted within the Conservatorium by qualified persons and the results reported to and approved by the Dean of the Conservatorium. (ii) Prior to 2008 the University by the Director SydneyPeople (HR) and the Office of General Counsel determined, without consulting and without the consent of Professor Walker as Dean, that the PM&Ds for Maree Ryan, Michael Halliwell and Stephanie McCallum and certain other persons be carried out and approved by persons not within the Conservatorium. (iii) On or about 16 and 17 July 2008 Professor Walker requested the Director Sydney People, Mr Bob Kotic, Chief Operating Officer and Deputy Vice-Chancellor and Professor Charles Benrimoj, that the PM&Ds for Maree Ryan, Michael Halliwell and Stephanie McCallum and certain other persons be carried out in accordance with the standard policy and practice (WPS para 29.1). (iv) On or about 7 July 2009 Professor Walker again requested the University by Colin Streeter, Director Sydney People, with copies of the request to Professor John Hearn, Ms Kate Hadfield (HR Adviser to the Conservatorium), and the Deputy Vice-Chancellors (Education) and (External Relations), that normal procedures for the PM&Ds for Maree Ryan and Michael Halliwell not by-pass normal procedures again (WPS para 29.2). (v) The University by Colin Streeter, Director Sydney People, and others failed and refused and continued to at least May 2011 to have the PM&Ds for Maree Ryan, Michael Halliwell and Stephanie McCallum and certain other persons carried out in accordance with the standard policy and practice pleaded above (WPS paras 29.3 and 29.4). (vi) By its conduct the University has failed and refused to support Professor Walker as Dean of the Conservatorium, has clearly demonstrated a refusal, failure and unwillingness to support Professor Walker as Dean of the Conservatorium and her administration of the Conservatorium and its conduct, when considered with the course of conduct and facts and matters pleaded in and particularised under sub-paragraphs (a) to (g) and (i) to (l) below make it more probable than not and provides a strong and compelling inference that it was the intention of the University that the University would not extend Professor Walker's appointment as Dean beyond 31 December 2011 to 2015 and had that intention from and had that intention between 2008 and 2010 and subsequently. Further particulars Further particulars and evidence of these matters is set out in paragraphs 29.1 to 29.4 of Professor Walker's Principal Statement and the documents identified thereunder. (i) The further actions and failures of the University by the Vice-Chancellor and of the Vice-Chancellor and its other principal officers in failing to inform Professor Walker of complaints about the management and administration of the Conservatorium within a reasonable time of their being made to permit timely and appropriate response by Professor Walker as pleaded below. Particulars are provided by reference to paragraph numbers of Professor Walker's Principal Statement (WPS), which include reference to documents identified beneath a paragraph in the statement. (i) Between about 18 months prior to and during June 2008 various members of the Conservatorium Staff including Maree Ryan, Nicole Dorigo, Simon Kenway, Stephanie McCallum and Professor Michael Halliwell who were members of the National Tertiary Education Industry Union (NTEU) made a number of complaints in relation to alleged misconduct by Professor Walker and Professor Imre Pallo in the affairs of the Conservatorium to the NTEU which then attempted to resolve the complaints with the University by initially Mr Bob Kotic, Chief Operating Officer and Deputy Vice-Chancellor of the University and subsequently with Colin Streeter, Director Sydney People, and members of his staff (WPS para 31.1), (ii) The University subsequently appointed Dr Gregory Tillett to investigate and report on certain of those complaints (WPS para 30.1-30.2, 30.5). (iii) The University did not inform Professor Walker of the appointment of Dr Tillett until December 2008, and did not inform Professor Walker of the complaints or of the dealings with the NTEU concerning the complaints until 19 February 2009 (WPS paras 30.2, 31.1). (iv) The complaints referred to Dr Tillett were subsequently investigated and dismissed by him in March and April 2009 in a written report (WPS paras 30.4 and 30.5). (v) The University failed to inform Professor Walker of the complaints referred to above within a reasonable time, failed to consult or inform Professor Walker of the appointment of Dr Tillett and his inquiry before it was made and commenced, and did not permit timely and appropriate response by Professor Walker. (vi) By its conduct the University has failed to provide Professor Walker with information to which she was entitled as Dean and refused to support Professor Walker as Dean of the Conservatorium, has demonstrated a refusal, failure and unwillingness to support Professor Walker as Dean of the Conservatorium, and its conduct, when considered with the course of conduct and facts and matters pleaded in and particularised under sub-paragraphs (a) to (h) and (j) to (l) below make it more probable than not and provides a strong and compelling inference that it was the intention of the University that the University would not extend Professor Walker's appointment as Dean beyond 31 December 2011 to 2015 and had that intention from and had that intention between 2008 and 2009 and subsequently Further Particulars Further particulars and evidence of these matters is set out in paragraphs 30.1 to 30.4 of Professor Walker's Principal Statement and the documents identified thereunder. (j) The further actions and failures of the University by the Vice-Chancellor and of the Vice-Chancellor and its other principal officers in failing to provide Professor Walker with a suitable and competent Faculty Manager from and after January 2008 to handle the day to day administration of the Conservatorium, notwithstanding her repeated requests, thereby making it more difficult for her to perform all the duties and functions of her position as Dean, Particulars are provided by reference to paragraph numbers of Professor Walker's Principal Statement (WPS) which include reference to documents identified beneath a paragraph in the statement. (i) In January 2008 Kylie Mayes, the Faculty Manager of the Conservatorium, resigned and left having given only 24 hours' notice (WPS para 32.1 - 32.2). (ii) Professor Walker thereupon requested the University by John Dixon the Executive Officer in the Office of the Provost to provide a replacement with similar experience (WPS32.4). (iii) The University did not then provide a replacement Faculty Manager (WPS para 32.5). (iv) Professor Walker made further requests of the University to provide a replacement Faculty Manager or General Manager Operations for the Conservatorium in October 2008 (WPS para 32,6 and 32.7). (v) The University by Bob Kotic, Chief Operating Officer and Deputy Vice-Chancellor then sought to provide Geoff Barton as Faculty Manager or General Manager Operations for the Conservatorium as an interim appointment but his reputation was unsatisfactory (WPS para 32.10 to 32.12) and then contrary to Professor Walker's choice on interview appointed John Nugent who worked short hours and otherwise conducted himself unsatisfactorily in the workplace in relation to female staff (WPS para 32.13). (vi) The University separated John Nugent from the Conservatorium in May 2010 and thereafter made no attempt to provide and did not provide a Faculty Manager or General Manager Operations for the Conservatorium. (vii) By its conduct in failing to provide Professor Walker with a suitable and competent Faculty Manager from and after January 2008 to handle the day to day administration of the Conservatorium, notwithstanding her repeated requests, thereby making it more difficult for her to perform all the duties and functions of her position as Dean, the University has failed and refused to support Professor Walker as Dean of the Conservatorium, has demonstrated a refusal, failure and unwillingness to support Professor Walker as Dean of the Conservatorium and its conduct, when considered with the course of conduct and facts and matters pleaded in and particularised under sub-paragraphs (a) to (i) and (k) to (l) below make it more probable than not and provides a strong and compelling inference that it was the intention of the University that the University would not extend Professor Walker's appointment as Dean beyond 31 December 2011 to 2015 and had that intention from and had that intention between 2008 and 2009 and subsequently Further Particulars Further particulars and evidence of these matters are set out in paragraphs 32.1 to 32.14 of Professor Walker's Principal Statement and the documents identified thereunder. (k) The failure and refusal of the University by the Vice-Chancellor and of the Vice-Chancellor and its other principal officers to formalise the secondment of Dr Peter McCallum to positions on the main campus of the University from before 2008 so the position of Associate Professor in the Conservatorium's Musicology Unit could be filled, notwithstanding Professor Walker's requests, thereby depriving the Conservatorium of a position which could and should have been filled and making it more difficult for her to perform all the duties and functions of her position as Dean in relation to staffing the Conservatorium as pleaded below. Particulars are provided by reference to paragraph numbers of Professor Walker's Principal Statement (WPS), which include reference to documents identified beneath a paragraph in the statement. (i) In about 2004 Dr Peter McCallum was seconded from the Conservatorium's Musicology Unit to the University as Deputy Chair of the Academic Board, retaining the title of Associate Professor which he acquired when acting Principal of the Conservatorium prior to Professor Walker's arrival (WPS para 33.2). (ii) The Conservatorium thereby lacked a position of Associate Professor in the Musicology Unit. (iv) Professor Walker prior to May 2008 requested Dr Peter McCallum to return to positions and offered to him research positions at the Conservatorium and after his refusal requested the University in September 2009 formalise Dr Peter McCallum's secondment and make available the position of Associate Professor to be filled for the Conservatorium (WPS paras 33.2 and 33.4). (v) The University failed and refused to do so (WPS paras 33.4 and 33.5). (vi) While seconded to the University Administration, Dr Peter McCallum sought to interfere in the administration and affairs of the Conservatorium when he was not authorised to do so, to the inconvenience and detriment of Professor Walker and the staff of the Conservatorium (WPS paras 33.1, 33.6 and 33.7). (vii) By its conduct pleaded above in failing to formalise the secondment of Dr Peter McCallum to positions on the main campus of the University from before 2008 so the position of Associate Professor in the Conservatorium's Musicology Unit could be filled, notwithstanding Professor Walker's requests, thereby depriving the Conservatorium of a position which could and should have been filled and making it more difficult for her to perform all the duties and functions of her position as Dean in relation to staffing the Conservatorium, the University has failed and refused to support Professor Walker as Dean of the Conservatorium, has demonstrated a refusal, failure and unwillingness to support Professor Walker as Dean of the Conservatorium and its conduct, when considered with the course of conduct and facts and matters pleaded in and particularised under sub-paragraphs (a) to (j) and (l) below make it more probable than not and provides a strong and compelling inference that it was the intention of the University that the University would not extend Professor Walker's appointment as Dean beyond 31 December 2011 to 2015 and had that intention from and had that intention between 2008 and 2009 and subsequently Further Particulars Further particulars and evidence of these matters are set out in paragraphs 33.1 to 33.7 of Professor Walker's Principal Statement and the documents identified thereunder. (l) The further actions and failures of the University by the Vice-Chancellor and of the Vice-Chancellor and its other principal officers in and from December 2008 following the Report of the Gyles Inquiry in relation to the St James Ethics Centre Mediation, as pleaded in the following sub-paragraphs. Particulars are provided by reference to paragraph numbers of Professor Walker's Principal Statement (WPS), which include references to documents identified beneath a paragraph in the statement. (i) At the conclusion of the Gyles Inquiry the University by the Senate resolved that the Vice-Chancellor Dr Spence should conduct a mediation into the loss of confidence in the Dean's leadership as reported in the Gyles Report, and to report back to the Senate by the end of Semester One 2009 (WPS para 23.44). (ii) The University by the Vice-Chancellor thereupon retained the St James Ethics Centre to carry out an enquiry and mediation of the Conservatorium without prior consultation with Professor Walker as Dean and in refused and failed to take account of Professor Walker's objections to the Vice-Chancellor's proposed report and announcement concerning the Gyles report and the establishment of the St James Ethics Centre Mediation (WPS paras 23.45 to 23.51). (iii) The University by the Vice-Chancellor established and implemented the St James Ethics Centre inquiry and mediation without prior consultation with Professor Walker as Dean as to the terms of reference for the mediation and inquiry (WPS paras 23.45 to 23.51). (iv) On or about 10 December 2008 Mr Bryce Wauchope the Chair of the Board of Advice of the Conservatorium wrote to the Vice-Chancellor Dr Spence and sent a copy of his letter to the Chancellor Professor Marie Bashir expressing concerns about the appointment of the St James Ethics Centre as Mediator, protesting at the University's treatment of Professor Walker, and requesting a meeting with the Vice Chancellor. The Vice-Chancellor refused to meet Mr Wauchope or the Board of Advice. In about March 2009 the Vice-Chancellor and Dr Longstaff of the St James Ethics Centre declined to include any members of the Board of Advice on the Steering Committee for the mediation. On 29 January 2009 the chair of the SCM Board of Advice wrote to the Chancellor and Fellows of the Senate expressing concerns about the appointment of the St James Ethics Centre as Mediator there was no reply or satisfactory reply to that letter. The University by the Vice-Chancellor thereby ignored and refused to meet or consult with the chair or representatives of the Board of Advice of the Conservatorium (which had been established at the instance of Professor Walker to provide a bridge between the Conservatorium and the community) over concerns about the appointment of the St James Ethics Centre as Mediator and related matters (WPS paras 23.54 and 23.55 and 24,4). (v) The University by the Vice-Chancellor then failed to consult Professor Walker and to involve her in the process of the St James Ethics Centre inquiry and mediation or its constitution and to accord her any role in determining the terms of reference, the membership of the Steering Committee of the St James Ethics Centre inquiry and mediation (WPS 23.54 to 23.55, 24.5 and 24.6,and 24.7 to 24.17, 24.18 to 24.22). (vi) Further, the University by the Vice-Chancellor then failed to include any member of the Board of Advice of the Conservatorium in the membership of the Steering Committee for of the St James Ethics Centre inquiry mediation (WPS paras 23.54 to 23.55, 24.5 and 24.6,and 24.7 to 24.17, 24.18 to 24.22). (vii) Further, the University by the Vice-Chancellor then failed and refused to prevent the inclusion and proposed inclusion in the final report of the St James Ethics Centre inquiry and mediation of references adverse to Professor Walker including references to allegations of plagiarism by her without referring to the results of inquiries exonerating her (WPS paras 24.18 to 24.22). (viii) By its actions and conduct in (i) to (vii) above, in addition to the failure and refusal of the University to implement the recommendations of the Gyles Report as pleaded in and particularised under paragraphs 71 to 87 above, the University by its conduct has failed and refused to support Professor Walker as Dean of the Conservatorium, has demonstrated a refusal, failure and unwillingness to support Professor Walker as Dean of the Conservatorium and its conduct, when considered with the course of conduct and facts and matters pleaded in and particularised under sub-paragraphs (a) to (k) above make it more probable than not and provides a strong and compelling inference that it was the intention of the University that the University would not extend Professor Walker's appointment as Dean beyond 31 December 2011 to 2015 and had that intention from and had that intention between 2008 and 2009 and subsequently. 111 From about the time of his appointment as Vice-Chancellor in 2008, alternatively by about June 2010 it was the intention of the Vice-Chancellor Dr Spence that the University would not extend Professor Walker's appointment as Dean beyond 31 December 2011. This is to be inferred from the conduct, facts and matters pleaded in and particularised under paragraph 106CG and its sub-paragraphs (a) to (l) above, which are repeated. 116G From about the time of the appointment of Dr Spence as Vice-Chancellor in 2008, alternatively by about June 2010, it was the intention of the University by the Vice-Chancellor Dr Spence that the University would not extend Professor Walker's appointment as Dean beyond 31 December 2011. This is to be inferred from the conduct, facts and matters pleaded in and particularised under paragraph 106CG and its sub-paragraphs (a) to (l) above, which are repeated. 116I In the premises the University is estopped and prevented from denying that it was obliged to renew and extend Professor Walker's appointment as Dean until the conclusion of the Conservatorium's centenary celebrations in 2015 and that it was and is in breach of the Third Employment Agreement as renewed and extended and is liable in damages to Professor Walker and for other relief accordingly. Particulars In addition to damages, Professor Walker is entitled to appropriate declaratory relief and other relief to the effect that the University was and is not entitled to appoint or maintain the appointment of any other person other than Professor Walker as Dean until the conclusion of the Conservatorium's centenary celebrations in 2015. The defendant was in breach of the express and implied clauses of the Third Employment Agreement and of the Deed of 10 December 2007 as pleaded in paragraphs 106A, 106B and 106C above and the particulars thereunder. The relief claimed is as stated and particularised, damages and declaratory relief to the effect particularised. In addition, the relief is sufficiently claimed in paragraphs 1 to 6, 8 and 9 at the commencement of the pleading. C(bb) The conduct of the University and the facts and matters pleaded in and particularised under paragraph 106CG and its sub-paragraphs (a) to (l) above, which are repeated. SECOND SCHEDULE 20 Prior to 4 July 2007 the University received a number of allegations concerning Professor Walker which were referred to the Acting Vice-Chancellor Professor Nutbeam. Professor Nutbeam failed and refused to provide Professor Walker with details of the substance of the allegations or of the identity of the persons making the allegations and requested Professor Walker to stand aside as Dean pending the completion of a proposed investigation. 21 The allegations were reported in the public press as including allegations of plagiarism (the First Plagiarism Allegations). Particulars Sydney Morning Herald 7 August 2007 "Head of Con Put Out to Pasture", Harriet Alexander. 22 Upon Professor Walker refusing to stand aside as Dean, on 6 July 2007 the University, by its acting Vice-Chancellor Professor Nutbeam, purported to suspend the performance by Professor Walker of her duties and employment as Dean and pending completion of a proposed investigation of the allegations against her (the "2007 Suspension"). 23 The University did not, at any time, have reasonable, proper or sufficient grounds upon which to suspend Professor Walker and was not entitled to suspend Professor Walker from performance of her duties and employment as Dean and the University through the acting Vice-Chancellor Professor Nutbeam: (a) by failing and refusing to follow the University's policies and procedures in dealing with allegations of the nature of those referred to in paragraphs 20 and 21 above, and (b) by failing and refusing to provide Professor Walker with details of the substance of the allegations or of the identity of the persons making the allegations, and (c) by requesting Professor Walker to stand aside as Dean pending the completion of a proposed investigation without providing Professor Walker with details of the substance of the allegations or of the identity of the persons making the allegations and the opportunity to respond to the allegations, and (d) by purporting to suspend Professor Walker from performance of her duties and employment as Dean, and (e) by appointing Mr Anthony Britt of Counsel to conduct an investigation into the allegations, breached the Implied Trust and Confidence Term and the Implied Good Faith Term of the Third Employment Agreement. Particulars See inter alia the letter of Mr Mark O'Brien of Johnson Winter & Slattery to Mr Richard Fisher General Counsel of the University dated 25 September 2007 and Mr Fisher's reply dated 28 September 2007. 24 As a result of the wrongful purported 2007 Suspension and the breaches of the Implied Trust and Confidence Term and the Implied Good Faith Term of the Third Employment Agreement Professor Walker suffered serious and substantial damage. Particulars The suspension and the manner of it and the subsequent investigation led to widespread publicity adverse to Professor Walker and calculated to harm her reputation as a university administrator and musician nationally and internationally and to undermine and damage her authority and capacity to administer the Conservatorium and to perform her duties and function as Dean, and her capacity to obtain suitable employment and appointments was seriously damaged both within Australia and internationally. 25 The University appointed Mr Anthony Britt of Counsel to investigate the allegations referred to in paragraphs 20 and 21, and purported to direct and oblige Professor Walker as an employee of the University to take part in the investigation. Mr Britt's investigation proceeded until about 6 September 2007, and in his report (the Britt Report) found and held that the allegations were not made out except for one matter for which it was subsequently established that Professor Walker was not responsible. Mr Britt's report did not cause the University to commence any disciplinary proceedings or take any other action against Professor Walker in respect of the allegations. 26 On 18 September 2007 the University revoked its purported 2007 Suspension and Professor Walker resumed her duties as Dean of the Conservatorium. 27 Thereafter the University did not at that time, in spite of being requested and agreeing to do so, issue any accurate or adequate or sufficient press release but by the Vice-Chancellor Professor Gavin Brown, circulated an email dated 19 September 2007 to all staff of the Conservatorium only (and not to the wider academic community in the University) advising merely that Professor Walker was returning to work to resume her normal responsibilities as Dean and failed to state the result and true substance and effect of the Britt investigation and the Britt Report, and on 17 September 2007 issued a press release to the same effect as the email. The email and press release were misleading and deceptive and likely to mislead or deceive the recipients or readers. Particulars Professor Walker met with Professor Gavin Brown, Mark O'Brien of Johnson Winter & Slattery and Richard Fisher, the University's General Counsel, in Professor Brown's office on 18 September 2007 at which time Professor Brown agreed to issue a media release. A press release was only posted online in a Brisbane media outlet rather than in print to the Sydney Morning Herald. There then followed correspondence between Professor Walker's solicitor Mr Mark O'Brien and Mr Fisher during late October and early November 2007. On 1 November 2007, Mr Fisher responded to Mr O'Brien's letter of 31 October 2007 refusing to agree to Mr O'Brien's suggested content for the media release. It was not until after a Deed of Release was executed by the parties on 10 December 2007 that the words in Schedule 2 of the Deed were in fact issued by the University in a media release dated 10 December 2007. By this time Professor Walker had been back at work for almost 3 months (18 September 2007 - 10 December 2007) and in the intervening period she had been subjected to further damaging media publicity. 28 By failing to issue any accurate or adequate or sufficient press release in respect of the revocation of the purported 2007 Suspension and by issuing the press release and email referred to in the preceding paragraph, the University by its Vice-Chancellor Professor Gavin Brown breached the Implied Trust and Confidence Term and the Implied Good Faith Term of the Third Employment Agreement. 29 Further, the University failed to take reasonable steps to keep and maintain the confidentiality of the Britt Investigation and the Britt Report and to prevent its release to members of the staff of the Conservatorium opposed to Professor Walker and its use to undermine and damage her reputation and authority and capacity to administer the Conservatorium and to perform her duties and function as Dean. Particulars (a) On the morning of 19 September 2007, there was a Conservatorium College Board Meeting which, in the normal course, was not open to anyone other than Conservatorium staff. Notwithstanding that, there was a reporter from the Sydney Morning Herald present at the meeting who was asked to leave. That reporter stayed in the corridor and the door of the room in which the College Board Meeting was taking place was left ajar. (b) The meeting was attended by Associate Professor Peter McCallum (then seconded to the Office of the Provost of the University) and his wife, Associate Professor Stephanie McCallum, a member of the academic staff of the Conservatorium. Mr McCallum was at all material times and is the music critic for the Sydney Morning Herald. (c) During the meeting Associate Professor Peter McCallum and Associate Professor Stephanie McCallum began to speak loudly and vociferously, waiving a paper around in the air and shouting at Professor Walker that she was a "serial plagiarist" and that "here is the proof". Professor Walker recognised the document as being a marked up colour copy of the College Board Report as used in the Britt Report. Associate Professor McCallum and Associate Professor Stephanie McCallum distributed several copies of the document at the meeting. Professor Walker turned towards the McCallums to ask them to restrain themselves and caught sight of the Sydney Morning Herald reporter standing in the open doorway. The conduct of the McCallums was subsequently the subject of a formal complaint by Professor Walker to the University by letter dated 25 September 2007 to the then Acting Vice-Chancellor Professor Nutbeam. (d) The Britt Report was expressed to be confidential and there was no reason that Associate Professor McCallum and Associate Professor Stephanie McCallum should have had a copy in their possession. The events of the meeting were reported in the Sydney Morning Herald on 22 September 2007. 30 By failing to take reasonable steps to keep and maintain the confidentiality of the Britt Investigation and Report and to prevent its release to members of the staff of the Conservatorium opposed to Professor Walker and its use to undermine and damage her reputation and authority and capacity to administer the Conservatorium and to perform her duties and function as Dean the University breached the Implied Trust and Confidence Term and the Implied Good Faith Term of the Third Employment Agreement. 101 By failing to issue any accurate or adequate or sufficient press release in respect of the revocation of the purported 2007 Suspension and by issuing in its terms the press release and email referred to in paragraph 27, the University by its Vice-Chancellor Professor Gavin Brown as pleaded in paragraphs 27 and 28 above engaged, in professional activities within trade and commerce as pleaded in paragraph 3 above, in conduct that was misleading and deceptive or likely to mislead or deceive in contravention of TPA section 52 and FTA section 42. Particulars The press release was incomplete and inaccurate and in the circumstances including the publicity which had occurred misrepresented by omission and by its content and by the University's conduct the entitlement of the University to suspend the Dean and that there were proper and sufficient grounds for her suspension and for conducting the Britt Investigation, which was not the case. THIRD SCHEDULE 111 From about the time of his appointment as Vice-Chancellor in 2008, alternatively by about June 2010 it was the intention of the Vice-Chancellor Dr Spence that the University would not extend Professor Walker's appointment as Dean beyond 31 December 2011. This is to be inferred from the conduct, facts and matters pleaded in and particularised under paragraph 106CG and its sub-paragraphs (a) to (l) above, which are repeated. 114 In the circumstances pleaded in paragraphs 107 to 109 and/or 110 to 113 above, the University in not informing Professor Walker that it was from about 11 July 2008 or alternatively from June 2010 unlikely that her appointment as Dean would be extended until the conclusion of the Conservatorium's centenary celebrations in 2015, was acting unconscionably, and in professional activities within trade and commerce as pleaded in paragraph 3 above, for the purposes of and within ACL section 20 and TPA section 51AA and FTA section 43. FOURTH SCHEDULE 104The University since the appointment of Professor Walker as Dean of the Conservatorium held her out as the duly appointed Dean of the Conservatorium with the authority, powers, functions and duties as Dean, and further, purported to hold and held itself out to be and represented itself to be bound by the Implied Trust and Confidence Term and the Implied Good Faith Term of the Third Employment Agreement and Express Term 4.1(g) of the Deed of 10 December 2007, nevertheless by: (a) misrepresenting the nature and scope of the proposed Gyles Review as pleaded in paragraphs 61 and 62 above; and (b) failing to honour the agreement pleaded in paragraph 63 above; and (c) establishing the Gyles Review with the terms of reference set out in the Vice-Chancellor Dr Spence's letter of appointment and terms of reference to the Hon R V Gyles AO QC dated 5 August 2008; and (d) informing Professor Walker that Mr Gyles did not propose making adverse findings in respect of her as pleaded in paragraph 69 above and (e) refusing to make a copy of the Gyles Report available to Professor Walker and enable her to reply to it before it was put before the Senate until threatened with an injunction as pleaded in paragraphs 69 and 76 above, and (f) misrepresenting to Professor Walker the substance and effect and conclusions and recommendations of the Gyles Report as pleaded in paragraphs 73 and 74 above, and (g) failing to issue an announcement in the terms agreed with Professor Walker concerning the Gyles Report and misrepresenting the substance and effect of the Gyles Report as pleaded in paragraph 83 and 84 above, and (h) failing and continuing to fail to deal with false accusation concerning Professor Walker or attacks upon her as Dean the University as pleaded in paragraph 99 above, and (I) failing to deal with Professor Walker's complaints properly and in accordance with the University's policy and procedures as pleaded in paragraph 100 above, and (j) failing to discipline employees of the University especially at the Conservatorium and prevent them complaining baselessly against and attacking and continuing to attack Professor Walker, particularly Associate Professor Peter McCallum, Chair of Academic Board, Associate Professor Stephanie McCallum and Professor Dianna Kenny and those associated with them, engaged in conduct calculated to detrimentally affect and undermine the authority and powers and position of Professor Walker as Dean and her capacity to exercise and carry out her powers, authority, functions, responsibilities and duties as Dean thereby misleading and deceiving and acting in a manner likely to deceive or mislead Professor Walker, staff and students of the Conservatorium and members of the Board of Advice of the Conservatorium and members of the public that Professor Walker had the support of the University and the Vice-Chancellor as Dean and was entitled to exercise her powers, authority, functions, responsibilities when in fact she did not have that support and was not so entitled, and the University thereby engaged, in professional activities, within trade and commerce as pleaded in paragraph 3 above, in conduct that was misleading and deceptive or likely to mislead or deceive in contravention of TPA section 52 and FTA section 42, and by that conduct and those contraventions or one or more or all of them Professor Walker suffered further serious and substantial damage. Particulars The conduct and contraventions pleaded above led to widespread publicity adverse to Professor Walker and calculated to harm her reputation as a university administrator and musician nationally and internationally and to undermine and damage her authority and capacity to administer the Conservatorium and to perform her duties and functions as Dean, and to provide services to staff and students, and her capacity to obtain suitable employment and appointments was seriously damaged both within Australia and internationally. 105Further, the University since the appointment of Professor Walker as Dean of the Conservatorium held her out as the duly appointed Dean of the Conservatorium with the authority, powers, functions and duties as Dean, and further, purported to hold and held itself out to be and represented itself to be bound by the Implied Trust and Confidence Term and the Implied Good Faith Term of the Third Employment Agreement and Express Term 4.1(g) of the Deed of 10 December 2007 but nevertheless by failing and continuing to fail to implement, and to procure and ensure that the Vice-Chancellor Dr Spence should implement the recommendations of the Gyles Report that if the University did not judge Professor Walker's appointment as Dean should be terminated as the appropriate course (which was in fact the case), then the University should take urgent steps and measures to bolster and support her as Dean, including the ten essential steps enumerated and set out in the Report, the University engaged and continues to engage, in professional activities within trade and commerce as pleaded in paragraph 3 above, in conduct that was and is misleading and deceptive or likely to mislead or deceive in contravention of TPA section 52 and FTA section 42 and ACL section 18, and by that conduct and those contraventions or one or more or all of them Professor Walker suffered further serious and substantial damage. Particulars The University engaged in conduct calculated to detrimentally affect and undermine the authority and powers and position of Professor Walker as Dean and her capacity to exercise and carry out her powers, authority, functions, responsibilities and duties as Dean thereby misleading and deceiving and acting in a manner likely to deceive or mislead Professor Walker, staff and students of the Conservatorium and members of the Board of Advice of the Conservatorium and members of the public that Professor Walker had the support of the University and the Vice-Chancellor as Dean and was entitled to exercise her powers, authority, functions, responsibilities when in fact she did not have that support and was not so entitled, and the University thereby engaged, in professional activities, within trade and commerce as pleaded in paragraph 3 above, in conduct that was misleading and deceptive or likely to mislead or deceive in contravention of TPA section 52 and FTA section 42, and by that conduct and those contraventions or one or more or all of them Professor Walker suffered further serious and substantial damage. The conduct and contraventions pleaded above led to widespread publicity adverse to Professor Walker and calculated to harm her reputation as a university administrator and musician nationally and internationally and to undermine and damage her authority and capacity to administer the Conservatorium and to perform her duties and functions as Dean, and her capacity to obtain suitable employment and appointments was seriously damaged both within Australia and internationally. 121 In breach of that duty of care the University failed to exercise reasonable care towards her in her position as Dean of the Conservatorium and as an employee of the University, and in particular: (a) failed to exercise prudence, caution and diligence and due care to avoid or minimise adverse consequences to Professor Walker in her appointment and employment as Dean and Professor; and (b) failed to provide a safe system and place of work; and (c) failed to prevent bullying, harassment or victimisation of Professor Walker. Particulars By the acts and omissions constituting the conduct pleaded in paragraphs 101 to 105 above the University breached its duty of care. 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: 25 February 2013

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