Amara Somasundaram v Department of Education and Training and Ors (According to the Schedule attached)
[2018] VSCA 318
•28 November 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2018 0075
| AMARA SOMASUNDARAM | Applicant |
| v | |
| DEPARTMENT OF EDUCATION AND TRAINING & ORS (According to the Schedule attached) | Respondents |
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| JUDGES: | MAXWELL P, ALMOND and MACAULAY AJJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 19 November 2018 |
| DATE OF JUDGMENT: | 28 November 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 318 |
| JUDGMENT APPEALED FROM: | [2018] VCC 649 (Judge Misso) |
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TORT – Conspiracy to injure by unlawful means – Strike out application – Whether statement of claim disclosed cause of action – Initial complaint of bullying and harassment in workplace – Alleged reprisals following complaint – Whether ‘unlawful means’ established by failure of respondent to treat complaint as ‘protected disclosure’ – Whether ‘improper conduct’ disclosed – Incurable defect in claim – Leave to appeal refused – Whistleblower Protection Act 2001 ss 5, 18, 19, Protected Disclosure Act 2012 s 4.
TRIAL – Fair trial – Procedural fairness – Hearing rule – Respondent identified deficiencies in pleading – Multiple opportunities to re-plead – Court assistance to obtain legal advice – Applicant declined to re-plead – Hearing rule complied with.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondents | Ms C M Harris QC with Ms E Latif | Minter Ellison |
MAXWELL P
ALMOND AJA
MACAULAY AJA:
Summary
The applicant, Ms Somasundaram, is a teacher at a Victorian government school. She is employed by the Secretary of the respondent Department (‘Department’), under the provisions of the Education and Training Reform Act 2006.
In November 2010, Ms Somasundaram made a written complaint to the Regional Director of the Department (‘2010 complaint’), claiming that:
there has been bullying, harassment, discrimination and unprofessionalism against me since 2008 and it is still continuing.
On 24 December 2010, the Regional Director advised Ms Somasundaram that her complaint had been investigated and had been determined to be without substance.
Subsequently, Ms Somasundaram made a complaint of discrimination and victimisation to the Victorian Equal Opportunity and Human Rights Commission. She also made a WorkCover claim, based on the psychological effect on her of the alleged bullying and harassment. The claim was accepted and Ms Somasundaram received statutory compensation. Ms Somasundaram was absent from work between June 2011 and November 2013.
On 23 January 2015, the Department terminated Ms Somasundaram’s employment. In February 2015, she brought an application for relief from unfair dismissal, pursuant to s 394 of the Fair Work Act 2009. In July 2015 that application was upheld. The Fair Work Commission held that the dismissal was both unjust and unreasonable. In October 2015, the Commission ordered that Ms Somasundaram be reinstated.
In July 2017, Ms Somasundaram commenced the proceeding in the County Court which gives rise to the present application. Her originating motion named the Department and 16 individuals as defendants. The cover sheet of the motion contained this statement:
NATURE OF CLAIM: Conspiracy to Damage Plaintiff’s Professional Reputation.
The attached statement of claim pleaded the fact of the 2010 complaint and alleged that:
From 2011 Department personnel started to conspire to damage the plaintiff’s professional reputation.
During September and October 2017, there was correspondence between the Department and Ms Somasundaram, and with the County Court, about whether the statement of claim disclosed a cause of action. Ms Somasundaram was invited to consider re-pleading her statement of claim and ― at the request of the Court ― the Department agreed to fund her to obtain independent advice from counsel about her claim. As a result of the advice received, Ms Somasundaram commenced a separate proceeding in the Federal Court under the ‘adverse action’ provisions of the Fair Work Act 2009.
Ms Somasundaram’s position throughout was that there was no need to re-plead. Her contention in the Court below, and again in this Court, was that she has a valid cause of action in tort against the defendants, namely, the tort of conspiracy to injure by unlawful means.[1] She contends that all of the elements of that tort are pleaded in her statement of claim.
[1]See Carolyn Sappideen and Prue Vines (eds), Fleming’s The Law of Torts (Lawbook Co, 10th ed, 2011) 794–5 [30.210].
There having been no amendment to the statement of claim, the Department brought on a strike out application. Having had lengthy written submissions from Ms Somasundaram, and having heard argument from her and from counsel for the Department, the judge upheld the application and ordered that the proceeding be dismissed. It is from that order that Ms Somasundaram now seeks leave to appeal.
For reasons which follow, we would refuse leave to appeal. In short, there was an incurable defect in the claim which Ms Somasundaram sought to bring. She alleged that the ‘unlawful means’ element of the tort was established by the failure of the Department to treat her complaint of November 2010 as a ‘protected disclosure’ within the meaning of the Whistleblowers Protection Act 2001 (‘WPA’).[2]
[2]Ms Somasundaram also relied on the successor legislation, the Protected Disclosure Act 2012. At the time of the 2010 complaint, the WPA was the applicable legislation.
The complaint made by Ms Somasundaram could only have attracted the provisions of that Act if she had been alleging some form of ‘improper conduct’ within the meaning of that Act. On no view of her allegations of bullying and harassment did the alleged conduct answer the statutory definition. Accordingly, the claim which Ms Somasundaram clearly identified as the claim she wished to bring was untenable as a matter of law, and the judge was correct to dismiss it.
The 2010 complaint
The relevant part of the November 2010 letter of complaint was in these terms:
I am a teacher at [school] and there has been bullying, harassment, discrimination and unprofessionalism against me since 2008 and it is still continuing.
In October 2010, The [school] staff e-mail distribution group received an e-mail from [R] which was designed to marginalise me. I had responded to an e-mail that suggested that we plan a PD adopting Gross National Happiness principles as a foundation of our Pastoral Care and school philosophy. My concern was taking on a philosophy based on Buddhism and the philosophy of a country (Bhutan) that is linked with ethnic cleansing. My counter suggestion was to develop students’ personal skills during Home Group time.
It brought about an onslaught of unjustified criticism about my comments. As [R] sent the initial e-mail message to the [school] e-mail distribution list and carbon copied it to the previous principal, [D], [R] enlisted an outside party for his own political agenda. My concerns were not addressed by [D] but the support for [R] was made evident. [D] asked [R] to forward his e-mail to the staff.
I believe that these e-mails constitute bullying. I also feel that it is unprofessional to involve a person who is no longer a DEECD employee, in decisions that affect the future direction of the school.
This is not the first time bullying, harassment and unprofessionalism has been overlooked. I have tried different ways to resolve the problems at the school level but have not succeeded.
The letter proceeded to set out, in 15 numbered paragraphs, a ‘list of events where unprofessionalism, bullying, harassment and discrimination have occurred’.
As noted earlier, the 2010 complaint is the foundation of the allegations in the statement of claim. It is there characterised, however, as a complaint
about students not only witnessing intimidation, bullying, and harassment but also [being] encouraged to demonstrate protests to the extent of vandalising property.
The subsequent paragraphs of the pleading successively allege that ‘Department personnel’ (presumably meaning the individual named defendants):
·‘started to conspire to damage the Plaintiff’s professional reputation’;
·began ‘promoting the unfounded opinion that the Plaintiff was mentally damaged’;
·‘continued to conspire to discredit the Plaintiff’ after her return to work;
·‘colluded together to stop the truth coming out’; and
·‘continue[d] to harm the professional reputation of the Plaintiff through deliberate actions and inactions’.
In her detailed written submission in response to the strike out application, Ms Somasundaram made clear that the claim she had always intended to bring was a claim in tort for conspiracy to injure by unlawful means. The submission stated:
Conspiracy to injure by unlawful means is an actionable wrong in this case it is linked to the whistleblower legislations and the damage was to the professional reputation.
She also made clear that her claim relied on the Department’s lack of response to what she said was a ‘disclosure’ about ‘improper conduct’. She contended as follows:
a.The Plaintiff made complaints to the ‘public body’ highlighting improper conduct in the school.
b.The Plaintiff’s complaints, notification or disclosures was either not properly investigated or ignored.
c. The public body did not take appropriate actions.
d. The Defendants and others took adverse action against the Plaintiff.
e. The Defendants colluded together to injure the Plaintiff.
f. The above paragraphs illustrate the intentions to injure the Plaintiff.
g.The Defendants breaching the whistleblower legislations have caused harm to the Plaintiff.
Because of this reliance on the WPA, the trial judge sought clarification from Ms Somasundaram as to whether she was relying both on the tort of conspiracy and on the separate cause of action for damages created by the WPA.[3] She responded, very clearly, that she was relying only on the conspiracy claim.
[3]WPA s 19; Owens v University of Melbourne (2008) 19 VR 449, 455–7.
The core concept in the WPA was the taking of ‘detrimental action’ against a person ‘in reprisal for a protected disclosure’. Conduct of that kind was made a criminal offence and, in addition, a statutory cause of action for damages was conferred on the person against whom the detrimental action was taken.[4]
[4]WPA ss 18–19.
The type of disclosure which would attract the protection of the WPA was defined in s 5, as follows:
5 Who can make a disclosure about improper conduct?
A natural person who believes on reasonable grounds that a public officer or public body ―
(a)has engaged, is engaging or proposes to engage in improper conduct in their capacity as a public officer or public body; or
(b)has taken, is taking or proposes to take detrimental action in contravention of section 18 ―
may disclose that improper conduct or detrimental action in accordance with this Part.
The term ‘improper conduct’ was in turn defined in s 3 of that Act as follows:
improper conduct means ―
(a) corrupt conduct; or
(b) a substantial mismanagement of public resources; or
(c) conduct involving substantial risk to public health or safety; or
(d) conduct involving substantial risk to the environment ―
that would, if proved, constitute ―
(e) a criminal offence; or
(f)reasonable grounds for dismissing or dispensing with, or otherwise terminating, the services of a public officer who was, or is, engaged in that conduct;
We should also refer to the more elaborate definition of ‘improper conduct’ in the successor legislation ― the Protected Disclosure Act 2012 (‘PDA’) ― the relevant parts of which are as follows:
4. Meaning of improper conduct
(1) For the purposes of this Act, improper conduct means ―
(a)corrupt conduct; or
(b)conduct specified in subsection (2) that is not corrupt conduct but that, if proved, would constitute ―
(i)a criminal offence; or
(ii)reasonable grounds for dismissing or dispensing with, or otherwise terminating, the services of the officer who was, or is, engaged in that conduct.
(2)For the purposes of subsection (1)(b), specified conduct is conduct ―
(a)of any person that adversely affects the honest performance by a public officer or public body of his or her or its functions as a public officer or public body; or
…
(c)of a public officer or public body that constitutes or involves knowingly or recklessly breaching public trust; or
…
(e)that could constitute a conspiracy or an attempt to engage in any conduct referred to in paragraph (a), (b), (c), (d) or (da);
As we have pointed out, the 2010 complaint was a complaint by Ms Somasundaram that she was being bullied and harassed. She was complaining that she had been seriously mistreated in her workplace. What is clear is that this was not a disclosure of ‘improper conduct’ within the meaning of that term in the WPA. None of the sub-paragraphs of the definition could have had application to the conduct complained of.
Nor did the complaint involve conduct which (allegedly) affected the ‘honest performance’ by Ms Somasundaram of her functions as a teacher, within the meaning of sub-s 2(a) of the definition in the PDA. (Although that definition was not in force at the time of the 2010 complaint, it was the subject of discussion during argument in this Court). It may be accepted that the alleged conduct was said to have affected Ms Somasundaram’s performance, but no question of honesty or dishonesty arose.
In short, Ms Somasundaram’s reliance on the WPA was misconceived from the outset. What she ‘disclosed’ in her claim of bullying was not a disclosure of ‘improper conduct’. As a result, the complaint simply did not engage the Act.
In those circumstances, it is unnecessary to consider further whether it was open to Ms Somasundaram to bring a claim of conspiracy to injure her in her employment and, if it was, whether an alleged ‘omission to comply’ with the WPA could have constituted ‘unlawful means’ for that purpose.
Breach of natural justice
The second ground of appeal contended that Ms Somasundaram was denied a fair hearing. This ground was developed at some length in the written case but was not elaborated on orally.
This complaint is without substance, in our view. It is clear from the documentary record that Ms Somasundaram was treated with scrupulous fairness, first by the Department as defendant and then ― on three occasions ― by judges of the County Court. The Department, through its legal representatives, repeatedly acknowledged the obligations of the State of Victoria as a model litigant, and took all reasonable steps to afford Ms Somasundaram the opportunity to reconsider her pleading and to obtain legal advice for that purpose.
For their part, the judges were understandably concerned — in light of her earlier WorkCover claim — to clarify with Ms Somasundaram whether she was in fact bringing a claim for damages for workplace injury, in which case she would have faced the ‘gateway’ requirements of the Accident Compensation Act 1985. It was at the request of Judge Saccardo, at a directions hearing, that the Department agreed to fund the provision of independent advice to Ms Somasundaram. His Honour was astute to ensure that, given the seeming legal complexity of the claim(s) which Ms Somasundaram wished to advance, she was not disadvantaged by being unrepresented.
As we have said, Ms Somasundaram remained of the view throughout that her pleading sufficiently articulated the cause of action in tort which she wished to advance. So much was made emphatically clear in her detailed outline of submissions on the strike out application. She was well aware of the objections advanced by the defendants and sought to meet them. The hearing rule was fully complied with.[5]
[5]See Roberts v Harkness [2018] VSCA 215 [48].
Unfortunately, there were two errors in the judge’s reasons which gave rise to legitimate complaint on this application. At one point, his Honour described Ms Somasundaram as having claimed that she had been ‘mentally damaged’.[6] As she correctly pointed out, she did not make that allegation. Instead, her complaint was that it had been falsely stated by the defendants that she had been ‘mentally damaged’.
[6] Somasundaram v Department of Education and Training [2018] VCC 649 [9].
The other concerned his Honour’s statement that ‘there is no cause of action known as a conspiracy to injure in a personal injury context’.[7] Again Ms Somasundaram points out, correctly, that she had disavowed any personal injury claim.
[7]Ibid [24].
For the reasons we have given, however, those errors were immaterial. The one claim which Ms Somasundaram did wish to bring was incurably defective.
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SCHEDULE OF PARTIES
Amara Somasundaram Applicant
v
Department of Education and Training First Respondent
Gill Callister Second Respondent
Peter Greenwell Third Respondent
Tony Budgen Fourth Respondent
Sue Holmes Fifth Respondent
Jacqueline Wiltshire Sixth Respondent
Leanne Strachan Seventh Respondent
Luciano Menolascina Eighth Respondent
Denise Dempsey Ninth Respondent
Samone Boucher Tenth Respondent
Dorothea Koopman Eleventh Respondent
Andrew Holden Twelfth Respondent
Roderick Price Thirteenth Respondent
Joel Cordwell Fourteenth Respondent
Rose Major Fifteenth Respondent
Anne Broadribb Sixteenth Respondent
Gail Walker Seventeenth Respondent
of Department of Education and Training