Yousif v Commonwealth Bank of Australia

REASONS FOR JUDGMENT 1 The respondent, the Commonwealth Bank of Australia, applies to the Court to be relieved from the undertaking it gave to the Court on 2 June 2008. The terms of the undertaking were as follows: The respondent, by its counsel, undertakes to the Court that, until further order: i) it will not dismiss the applicant from her employment; and ii) it will continue to pay to the applicant her usual salary without requiring her to perform duties or offering to provide her with duties to perform. 2 The Court was told the undertaking was given in the context of an application for an interlocutory injunction brought by the applicant, Ms Yousif, based on the cause of action under s 1317AA of the Corporations Act 2001 (Cth) (the Act). By that cause of action the applicant contended that she had made a relevant disclosure to the Chief Executive Officer of the respondent, Mr Norris, of conduct of certain employees and officers of the respondent which contravened their obligations to act in good faith. The Court was further told that in an affidavit sworn in support of the injunction application, the applicant asserted her desire to retain her employment with the respondent. 3 It is common ground that in ruling upon this application, the Court is to apply the test established by the High Court in Adam P. Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 which requires the respondent to persuade the Court that the discharge of the undertaking would be appropriate because of the existence of new facts that render the ongoing enforcement of the undertaking unjust. 4 The respondent carries the burden of establishing the new facts. Mr McDonald of Senior Counsel, who appeared on behalf of the respondent with Mr O'Grady, argued that there were two material changes in circumstances which rendered it unjust for the Court to maintain the undertaking of the respondent. 5 First, Mr McDonald contended that the cause of action under s 1317AA of the Act had been abandoned by the legal representative of the applicant in the course of the trial, which is presently part heard. Reference was made to the transcript at pp 22 and 50 which support the contention that this cause of action was abandoned in the course of the trial. 6 The second factor relied upon by the respondent was that the evidence of the applicant given in the course of the part heard trial demonstrated that she did not wish to return to her employment with the respondent and, in any event, would not go back on the terms available to her. A number of passages of transcript were relied upon by the respondent. The following exchange occurred between Ms Yousif and Mr McDonald: Can I just ask you a very simple question?---Yes. Do you want to go back to work?---I can't. There's a job for you. It's waiting there for you. It's been an offer made in good faith to you. Do you want to go back to the bank and be an employee of the bank?---I don't believe, Mr McDonald, your clients have good faith because I don't trust - after what happened to me I do not trust that they had any good faith in any decision they made. So is the answer no, you don't want to go back?---I cannot. I want to. I wish if you could bring the time that it's January again and I could get the same job, but during the last 10 months the bank has caused major damage, damage to my reputation, to my client base, to my future, not only with the bank but to my future elsewhere as well if I go and do this lending elsewhere, because I had a community - people from the same background that relied on, that trusted me and they rely - they rely on me for any of their banking needs and those clients, they went somewhere else and… those clients, the bank never paid commission for me to get them. 7 A short while later, the following exchange then occurred between Ms Yousif and the Court: ---Your Honour, the main issue - my main issue is that I cannot trust - cannot trust these people. Well, then you have to go. Then you have to leave the bank, don't you?---I cannot trust them and I believe the Court cannot make these people accept me and give - [if] this Court proceeding made the bank take me back, yes, but the revenge and the lack of trust in Carney's decision, the - once I'm in the workforce with the bank I - the Court will have no control over whatever decision Mr Carney is going to make against me. The Court cannot be involved in day-to-day activities or decisions or - who could guarantee that the same things or anything worse than this will not happen to me again. Well, no-one can guarantee it but you have legal rights and if the bank did misconduct itself on your return, well, you have rights in contract and there are human rights and equal opportunities laws and there are antidiscrimination and all sorts of laws that you may be able to use, but we can't solve the problems of the future. I mean you have to opt either that you don't want to go back or you do want to go back and I need some sort of guidance from you about what you claim?---Look, I would love to go back, but I know - and I know I can't, because I can't, because I can't trust these people and second… And you don't feel like giving them an opportunity?---No 8 Further, Mr McDonald argued that even if the s 1317AA cause of action remained or was resurrected, that cause of action depended upon the applicant establishing that her termination occurred as a result of the making of the disclosure with which the provision is concerned. It is clear enough that any termination which might now occur would most likely be a result not of that disclosure, but rather on the basis of the evidence given by the applicant of her desire to cease employment with the respondent. 9 Mr Ginnane, who appeared as counsel on behalf of the applicant, contended that the undertaking should not be discharged. He is at some disadvantage, having taken over the brief recently and not yet being in possession of the transcript of the hearing. He was therefore not able to contest the allegation that the s 1317AA cause of action had been abandoned. Rather he contended that if it had been then he may get instructions to resurrect it. 10 In relation to the evidence given by the applicant he contended that it was equivocal and whilst, on its face, may suggest that the applicant desired no longer to be employed by the respondent, it should rather be viewed as showing that Ms Yousif wished to return to employment provided that the trust which to date had been lost was restored. 11 In my view, the situation has changed significantly since the undertaking was given to the Court on 2 June 2008. Even if the proper characterisation of the applicant's evidence is that it is equivocal, then her position has nonetheless changed from being certain that she wished to retain employment to being equivocal about whether and on what terms she would wish her employment to continue. 12 Even if one were to assume that the s 1317AA cause of action had not been abandoned or was resurrected in the short term, there is force in Mr McDonald's contention that any termination now likely to take place stands little likelihood of qualifying under s 1317AA as being on the basis of the relevant disclosure. Whilst that is not an impossible outcome, it is not likely on the material presently before the Court. Section 1317AB allows the Court, on the establishment of the cause of action under s 1317AA, to order both compensation and reinstatement. These remedies would be available in combination if the undertaking was discharged but the applicant was ultimately successful under s 1317AA. 13 For those reasons I am satisfied that the respondent has made out a case for the discharge of the undertaking given to the Court on 2 June 2008 and orders will be made to that effect. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.