Avenia v Railway & Transport Health Fund Ltd
[2017] FCA 859
•4 August 2017
FEDERAL COURT OF AUSTRALIA
Avenia v Railway & Transport Health Fund Ltd [2017] FCA 859
File number: NSD 334 of 2017 Judge: LEE J Date of judgment: 4 August 2017 Catchwords: INDUSTRIAL LAW – contract of employment – right to direct employee not to work so as to provide for a temporary "suspension" pending a preliminary investigation – consideration of whether there is an implied duty to undertake investigative and disciplinary processes fairly – whether obligation to exercise contractual powers in accordance with principles of procedural fairness
CONTRACTS – principles of construction – entitlement to payment under an asset sale agreement – where two instruments alleged to be part of one transaction – implied duty of co-operation in employment contract – relationship with terms allegedly implied as a matter of fact into the contract
CONTRACTS – whether summary dismissal and termination of employment contract lawful
Legislation: Australian Postal Corporation Act 1989 (Cth), s 32
Evidence Act 1995 (Cth), ss 131(2)(h), 160
Fair Work Act 2009 (Cth), ss 360, 361, 570, 789FD(1)
Federal Court of Australia Act 1976 (Cth), s 53A
Work Health and Safety Act 2011 (Qld), s 19(1)
Cases cited: Adami v Maison De Luxe Limited [1924] HCA 45; (1924) 35 CLR 143
Australian Building and Construction Commissioner v Hall [2017] FCA 274
Bartlett v Australia and New Zealand Banking Corporation [2016] NSWCA 30; (2016) NSWLR 639
Bartucciotto v Euro Printing Company Pty Ltd, unreported, IRCA 72/96, 21 February 1996
Beaufort Developments (NI) Ltd v Gilbert-ASH NI Ltd [1999] 1 AC 266
Blyth Chemicals v Bushnell (1933) 49 CLR 66
BP Refinery (Westernport) Pty Ltd v Shire of Hastings [1977] UKPCHCA 1; (1977) 180 CLR 266
Braganza v BP Shipping Ltd [2015] UKSC 17; [2015] 1 WLR 1661
Bruce v AWB Ltd [2000] FCA 594; (2000) 100 IR 129
Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253
Charltons CJC Pty Ltd v Fitzgerald [2013] NSWSC 350
Collier v Sunday Referee Publishing Company Ltd [1940] 2 KB 647
Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169
Council of the City of Sydney v Goldspar Australia Pty Ltd [2006] FCA 472; (2006) 230 ALR 437
Dissanayake v State Transit Authority [2016] NSWIRComm 10
Downe v Sydney West Area Health Service (No 2) [2008] NSWSC 159; (2008) 71 NSWLR 633
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12; (2017) 91 ALJR 486
EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2010] WASCA 78; (2010) 41 WAR 23
Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640
Fishlock v The Campaign Palace Pty Ltd [2013] NSWSC 531; (2013) 234 IR 1
Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120; (2007) 163 FCR 62
Gooley v Westpac Banking Corporation [1995] IRCA 658; (1995) 59 IR 262
Hannover Life re Australasia Limited v Sayseng [2005] NSWCA 214; (2005) ANZ Ins Cas 90-123
Hoyt’s Pty Ltd v Spencer [1919] HCA 64; (1919) 27 CLR 133
Jupiter General Insurance Co Ltd v Shroff [1937] 3 All ER 67
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Koompahtoo Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115
Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd [1989] HCA 23; (1989) 166 CLR 623
Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285
McCann v Switzerland Insurance Australia Ltd [2000] HCA 65; (2000) 203 CLR 579
McDonald v Parnell Laboratories (Aust) (No 2) [2007] FCA 2086; (2007) 164 FCR 591
Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20; (2015) 229 FCR 221
Mezey v South West London and St George’s Mental Health NHS Trust [2007] EWCA Civ 106; [2007] IRLR 244
Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) [2015] FCA 825; (2015) 329 ALR 1
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited [2015] HCA 37; (2015) 256 CLR 104
Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; (2007) 71 NSWLR 471
North v Television Corporation Limited (1976) 11 ALR 599
Park v Brothers [2005] HCA 73; (2005) 80 ALJR 317
Peters (WA) Ltd v Petersville Ltd [2001] HCA 45; (2001) 205 CLR 126
Prestige Lifting Services Pty Ltd v Williams [2015] FCA 1063; (2015) 333 ALR 674
Rankin v Marine Power International Pty Ltd [2001] VSC 150; (2001) 107 IR 117
Re Minister for Immigration and Multicultural Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596
Service Station Association Ltd v Berg Bennett & Associates Pty Ltd [1993] FCA 638; (1993) 45 FCR 84
Society of Lloyd's v Clementson [1995] CLC 117
Sutcliffe v General Motors-Holden’s Automotive Ltd [1998] FCA 88; 80 IR 142
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165
University of Western Australia v Gray [2009] FCAFC 116; (2009) 179 FCR 346
Waddell v Mathematics.com.au Pty Ltd [2013] NSWSC 142
WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Limited [1998] NSWIRComm 200; (1998) 82 IR 80
XY v WA Country Health Service [2016] WASC 202
Allsop CJ, “Conscience, fair-dealing and commerce - parliaments and the courts" (FCA) [2015] Federal Judicial Scholarship 17
Hooley R, “Controlling Contractual Discretion” (2013) 72(1) Cambridge Law Journal 65
Lewison K and Hughes D, The Interpretation of Contracts in Australia (Lawbook Co, 2012)
Sappideen C, O’Grady PM, Riley J, Macken’s Law of Employment (8th ed, Lawbook Co, 2016)
Dates of hearing: 3, 4, 5, 12, 23 May 2017 and 5 June 2017 Registry: New South Wales Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 283 Counsel for the Applicant: Mr T Brennan with Mr M Bennett Solicitor for the Applicant: HWL Ebsworth Counsel for the Respondents: Mr G Boyce Solicitor for the Respondents: Moray & Agnew ORDERS
NSD 334 of 2017 BETWEEN: ARNALDO JAMES AVENIA
Applicant
AND: RAILWAY & TRANSPORT HEALTH FUND LTD ACN 087 648 744
First Respondent
SIMONE TREGEAGLE
Second Respondent
JUDGE:
LEE J
DATE OF ORDER:
4 AUGUST 2017
THE COURT ORDERS THAT:
1.By 4pm on 11 August 2017 the parties provide to the Associate to Lee J agreed (or, failing agreement, competing) short minutes to give effect to these reasons.
2.The proceeding be listed for a case management hearing for the making of orders giving effect to these reasons and for any further directions at 9.30am on 14 August 2017.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
A INTRODUCTION
The applicant (Dr Avenia) is a highly experienced dentist. He first established a dental practice in the central business district of Brisbane in 1984 and conducted his practice, in various locations in Brisbane’s CBD, continuously, for 32 years.
In 2016, the first respondent (RTHF), a mutual “not for profit” health fund, made a decision to open its own dental clinic in the central business district of Brisbane. It was described, happily, as the “Healthy Teeth Centre” (Brisbane Clinic). RTHF also operated two other specialist medical centres in New South Wales, including a dental clinic in Surry Hills in New South Wales (Surry Hills Clinic).
After discussions with a recruiter, an agreement was reached by which Dr Avenia would transfer his dental equipment and patients to the Brisbane Clinic. It was also agreed that he would become an employee of RTHF in the role of “Principal Dentist” of both the Brisbane Clinic and the Surry Hills Clinic.
In theory, the bargain was an attractive one from the perspective of both parties: for RTHF, it managed to procure the services of a dentist with an established patient base and long experience; for Dr Avenia, a 58 year old professional man, it allowed him to realise the market value of the goodwill he had built and to enjoy the added security of employment.
Unfortunately, the best laid plans oft go astray – and this one certainly did. Five months to the day after commencing work at the Brisbane Clinic, Dr Avenia approached and obtained from a judge of this Court, an ex parte injunction enjoining RTHF from taking steps to dismiss him. This step was subsequent to Dr Avenia being given, on 31 January 2017, a letter (dated the previous day) entitled, “Notice of formal meeting & Suspension pending investigation” (Suspension Letter), and a further letter dated 7 March 2017 asking him to show cause why his employment should not be terminated (Show Cause Notice). The events leading up to and causing this break in relations (and the motivations of the second respondent, Simone Tregeagle, the Chief Operating Officer of RTHF, in taking steps said to be adverse to Dr Avenia) are central to the proceeding.
The pictures painted by the protagonists are starkly at odds. The complexities are identified and examined below, but in broad summary, the core contention of Dr Avenia, as opened, was that dishonestly, and in bad faith, RTHF through Ms Tregeagle, instigated a process culminating in the Suspension Letter and the Show Cause Notice. According to Dr Avenia, the reason (or at least part of the reason) why this dishonest process was put in place was the insistence by Dr Avenia on high clinical standards, the maintenance of which had caused (and would likely continue to cause) a reduction in revenue in an amount likely to be of concern to the Board of RTHF: see Opening Submissions [5], [7]; Points of Claim [37], [44]. An allegation of dishonesty was maintained up to and including submissions in reply: see Reply Submissions at [8]. Dr Avenia also advances an argument that, irrespective of motivation, RTHF acted in breach of contract in its dealings with him.
The explanation of RTHF and Ms Tregeagle is starkly different. They contend that Dr Avenia was intemperate in his written and oral communications, brusque to the point of rudeness, and engaged in aggressive, intimidating and bullying behaviour. Notwithstanding this, RTHF could not readily replace Dr Avenia and had invested much in the relationship: Ms Tregeagle and Helen Renney (who enjoyed the somewhat imposing title, “Manager, People, Performance and Culture”) were intent on making the relationship work and were keen to attempt to modify what they perceived to be Dr Avenia’s suboptimal behaviour. Ms Tregeagle merely wanted Dr Avenia to attend a meeting to discuss her concerns. The Suspension Letter was met with a “crude push back” whereby Dr Avenia, through his solicitors, demanded oppressive particulars and raised a number of complaints putting “road blocks” in place preventing a sensible resolution. Finally, as a last resort, after Dr Avenia had refused to comply with what were said to be reasonable directions (and discovery by RTHF of Dr Avenia seeking to redirect mail away from RTHF), the Show Cause Notice was sent.
Regrettably, during the course of the hearing, the cases advanced on behalf of Dr Avenia, and RTHF and Ms Tregeagle, had a tendency to shift like mercury on a plate. Prior to the hearing (which was listed on an urgent final basis given the existence of the injunction), the case was not pleaded. In order that there be no misapprehension as to each party’s case and in the light of the serious allegations of bad faith and dishonesty, an attempt was made, by way of directions, to pin the parties down by requiring agreement on what issues of fact and law had to be determined and by identifying, with precision, the respective submissions on each of these issues. This did not result in a pre-hearing exchange I found useful, and when the matter was called on (and there appeared to be some further movement in the case opened on behalf of Dr Avenia), I determined that points of claim and defence ought be filed so that the issues would be defined by way of pleading. Again, these pleadings themselves underwent various changes but ultimately there was a consensus on what issues fell for determination and the way the parties ultimately put their case. It is fair to say that both cases evolved considerably to those first articulated.
Two further matters that should be noted in this overview are that: first, during the course of the hearing, I discharged the ex parte injunction and Dr Avenia’s employment thereafter ceased, bringing to an end the commercial relationship save for the resolution of this proceeding; and secondly, in the afternoon on the final day of submissions, Counsel for Dr Avenia informed the Court that the case for relief against Ms Tregeagle was no longer pressed. As a consequence, on 5 June 2017, I dismissed the proceeding insofar as it related to Ms Tregeagle and reserved the question of costs.
B STRUCTURE OF REASONS
The balance of these reasons are structured as follows:
· Section C: Findings – Relevant Factual Narrative;
· Section D: Findings – Intentions and Motives of RTHF and Credit;
· Section E: The Relevant Express Contractual Terms;
· Section F: The Alleged Implied Contractual Terms;
· Section G: Reasonable and Lawful Directions and Suspension;
· Section H: Agreed Issues for Determination;
· Section I: Determination of Issues;
· Section J: Conclusion and Orders.
C FINDINGS AS TO THE RELEVANT FACTUAL NARRATIVE
It is convenient at the outset to make findings as to what occurred in the period from the beginning of Dr Avenia’s employment until the commencement of this proceeding. These findings are primarily drawn from Exhibit A (a compendium of the relevant contemporaneous exchanges) but also, to the extent relevant, are based on the evidence given by the principal witnesses whose roles are discussed below. Except where it is necessary or convenient to explain the factual narrative, I have left the key findings as to the motive and intention of Ms Tregeagle and Ms Renney (and hence RTHF) to Section D below.
I Entry into the Employment Contract and the APA
After the initial dealings (referred to in [2] and [3] above) and an induction and training programme commencing in around mid-September 2016, an initial employment contract was agreed between Dr Avenia and RTHF. On 27 September 2017, Dr Avenia was given a copy of RTHF’s Bullying, Harassment and Discrimination Prevention Policy (Bullying Policy) and its Employee Code of Conduct (Code of Conduct).
The initial employment contract was superseded upon the entry into a further employment agreement by Dr Avenia and RTHF on 7 October 2016 (Employment Agreement). The employment was taken to have commenced from 10 October 2016, but the Employment Agreement (clause 2.1) provided that Dr Avenia was to serve a probation period for six months, calculated from 14 September 2016 to 14 March 2017 (Probation Period). During the Probation Period, RTHF was to review the “progress” of Dr Avenia and either Dr Avenia or RTHF could terminate the employment “at any time” and “without citing any reason”, on one week’s notice.
The transfer of Dr Avenia’s assets to RTHF was actually documented on 5 November 2016, but the relevant instrument, the Asset Purchase Agreement (APA), was expressed to be effective as from 30 September 2016. In November 2016 and January 2017, RTHF made part payments to Dr Avenia for equipment under the APA. Whether RTHF has complied with its obligations to make payments under the APA is dealt with in Section I (Issue One) below.
It will also be necessary to return in more detail to the express terms contained in the instrument being the Employment Agreement, which together with any other terms governed the employment relationship (Employment Contract). I have deliberately distinguished between the term ‘Employment Agreement’ (the instrument of that name signed on 7 October) and the ‘Employment Contract’ (being all the express and implied terms which governed the employment relationship) because the identification of not only implied terms but also the express terms of the paction are matters in dispute between the parties (and will be dealt with in Sections E and F below).
II Events from October 2016 to Mid-January 2017 - Problems Emerge
The first day Dr Avenia was in his job working in the Brisbane Clinic was 10 October 2016. At 8:04pm, Dr Avenia sent an email to Ms Tregeagle. It commenced as follows:
Hi Simone,
Working my way through a backlog of emails.
First thing I’d say is if some people spend less time sending emails more work could be done!
We wouldn’t have so much stress at the front desk!
At 10:50pm the same evening, Dr Avenia sent an email to Michelle Romeike, an employee of RTHF, and Ms Tregeagle. The email was in response to one Ms Romeike had sent to, among others, Dr Avenia, on the apparently benign topic of a water filtration quote. Dr Avenia commenced as follows:
Hi Michelle/Simone,
Let me explain!
He later continued:
There is/was no urgency to do anything straight away. This only got raised by Chiara [Scamuffo, the Clinical Co-ordinator at the Surry Hills Clinic] in her email today, coming in late without the facts of the situation?
… Now let me tell you how I helped resolve the AC situation and cleaned up the crusty vomit that everyone else in the organisation was happy to step over for the last 4 days, admittedly 2 days were the weekend, so no staff member used the front entrance over this period. I can also do a Pontius Pilate for the weekend because I only use the garage entry…after Jamie left that’s when I went down and cleaned the crusty vomit from under the door. I’m going to give the cleaner a serve and bring it up with all the personnel here, everyone has to take ownership or FO…
That’s all I can suggest after one day, I’m sure there’ll be more tomorrow.
I’m definitely enjoying myself and I’ll make a BLOODY BIG DIFFERENCE AROUND HERE.
Goodnight Ladies
Shortly thereafter, at 11:08pm the same evening, Dr Avenia responded to an apparently innocuous email that had been sent to him by Ms Scamuffo, which had commenced: “Hi [Dr Avenia], [h]ope your weekend was lovely!” and asked for some details concerning personnel arrangements within the Brisbane Clinic. The response, which speaks for itself, was as follows:
Chiara,
Don’t go mucking me around.
We have discussed this and we came to a solution.
This week you are waiting for the dentists to get their heads around the change.
Next week from the 17/10 you are implementing the 2 dentists per day regime.
You control the appointment book! Do your job.Thanks and Goodnight
No doubt Dr Avenia had a long and tiring day and it would have been an unpleasant chore to clean up vomitus (crusty or otherwise), but these first email communications after starting work are the initial illustration of what might charitably be described as cultural differences that were to emerge between Dr Avenia (who for a long time was a self-employed professional without responsibility to anyone but his patients) and the more structured corporate environment of RTHF.
The infelicity of expression went beyond late night musings. Although a small incident in itself, the differences in approach are further illustrated in an email sent by Dr Avenia a few weeks later, on 7 November 2016, to Ms Scamuffo and another employee, Margaret Milanovich, in the following terms:
Hi Chiara/Margaret,
Whoever changed the appointment book got it wrong?????
The various appointments should be different colours but the same for each dentist!
The dentists have their own columns so they don’t need to be one colour? We can differentiate them already!All NP’s should WHITE for each/every dentist
All PC/HYG should be GREEN for each/every dentist
All C&B should be whatever for each/every dentist
All Extractions
All Emergencies
Etc, etc, etcPlease change it again to what it should be.
I can’t get this new telephone to ring out.
Tomorrow morning could you ring me on xx xxxx xxxxI will be at my desk.
It appears that Ms Tregeagle did not read the email referred to at [17]-[18] fully when it was first received (T 178), but, in any event, by 9 November 2016, Ms Tregeagle was sufficiently concerned by the tone of Dr Avenia’s emails to communicate in the following terms:
Hi [Dr Avenia], can I ask you please have a look at the way you are communicating with the team via email.
It is my view – this has not been raised with me – that some of your communications could be interpreted as a little aggressive. It’s so easy to come across in ways not intended in email, and because it is a written record, it’s hard to back track on, too.
In the below [being the email reproduced above], your opening sentence, multiple question marks and exclamation marks at first read to me sound like an attack on the staff. When I read it, my heart skips a beat so I can only wonder at what their first reaction to it might be. I have no doubt that is not your intention to accuse or upset them, but it could easily be interpreted as such.
I would ask you to look at toning down your emails a little to ensure there is no misinterpretation or unintentional upset. I don’t want you to lose the energy or enthusiasm, just be mindful that what you might say to them in person can so easily be misinterpreted via email without the benefit of them being able to see and hear the intentions of your communication in a face-to-face situation. We’re generating a lot of change in the practice at the moment and we need to be careful not to add unintentional upset to the mix which will just slow us all down.
Happy to discuss if you’d like.
S
Dr Avenia’s prompt response to Ms Tregeagle’s gentle counselling reflected some self-awareness. He explained that he tended to “write my emails the same way I speak, I like to put in a bit of emphasis every so often to make a point”. He recognised that written communication could be misinterpreted and indicated an endeavour to address any possible misinterpretation. He stressed that he had “no agenda to upset anybody, intentionally or unintentionally”.
These communications were happening around the same time as Ms Tregeagle, Ms Scamuffo (as noted above, the Clinical Co-ordinator at the Surry Hills Clinic) and Briana Purcell (Clinical Co-ordinator at the Brisbane Clinic) were meeting with Dr Avenia for a broad discussion of what to do within the business. It appears Ms Purcell joined a meeting via video link from Brisbane on 3 November 2016 and the other participants were in Sydney. This meeting was of some significance as Dr Avenia “was advocating quite strongly” (T 243) for a practice model where an initial consultation with patients would be one hour in length and where this time would largely be spent by the dentist in conversation with the patient and then in treatment planning. No cleaning or other dental work would be carried out during this initial consultation.
During the course of the meeting, Ms Purcell and Ms Scamuffo both expressed the view that they believed that 45 minutes was sufficient for a new patient appointment inclusive of time undertaking a ‘clean’. Ms Purcell accepted, during the course of her cross-examination, that she considered the initial consultation plan suggested by Dr Avenia amounted to ‘time wasting’ and that she had never worked with any dentist who needed more than 45 minutes for a new patient examination and clean (T 243). When she initially expressed this view (in temperate terms) to Dr Avenia, he made it clear that he did not agree with Ms Purcell.
The following Monday, 7 November 2016, Dr Avenia had returned to Brisbane and there was a meeting between Dr Avenia and Ms Purcell. Ms Purcell’s evidence was that during the course of that meeting Dr Avenia yelled at her and said: “you’re part of my team. You do what I do, regardless of what they do in Sydney” (T 244).
In any event, irrespective of whether Dr Avenia actually yelled at Ms Purcell, or whether the precise words quoted were used, Dr Avenia took offence at Ms Purcell disagreeing with him at the meeting and he then became very short with Ms Purcell. I accept that Ms Purcell was shaken by the encounter with Dr Avenia on 7 November 2016 and that she afterwards spoke to a number of people about leaving the Brisbane Clinic as a consequence of her feeling uncomfortable.
During December 2016 and early January 2017, Ms Tregeagle was speaking regularly with several staff members of the Brisbane Clinic including Ms Purcell and considered that the issues in the Brisbane Clinic had progressed to the point where the relationship between Dr Avenia and the staff was a matter of concern. On 11 January 2017, Ms Tregeagle had received an email from a Dental Assistant at the Brisbane Clinic, Rashmi Anand, referring to “Things that I have noticed when I was with AA”. This email made a number of complaints some of which related to hygiene or infection practice which, on close examination, do not appear to be justified or at least fully justified, partly on the absence of any specific evidence Dr Avenia himself did anything wrong, and partly because the dental assistants, who have a central role in hygiene or infection control, were the responsibility of Ms Purcell (T 160-1).
In any event, the general issue of staff discontent had, in the opinion of Ms Tregeagle, clearly escalated. During the course of Ms Purcell’s cross-examination, evidence emerged that Ms Purcell had kept what was described as an “incident diary” which she had started from the time she commenced with RTHF (T 247). The document had not been discovered and evidence was adduced that a copy of the diary was on her iPhone. The document was then called for and subsequently tendered. The document gives a compelling picture of Ms Purcell’s contemporaneous record of the deterioration of the relationship between Dr Avenia and the staff within the Brisbane Clinic from early November 2016 onwards. There was no suggestion that the document was not an essentially accurate record of Ms Purcell’s contemporaneous thoughts nor, after it was produced, was Ms Purcell directly challenged on the accuracy of the record of events contained in it (T 356). It reads as follows (the punctuation and spelling is uncorrected):
02/11/16-called chiara a drama queen
03/11/16- meeting with Simone, chiara and [Dr Avenia]. Snide remark about where I used to work and dentists I worked with. Said that thy were obviously not good dentists if they did half hour consults.
07/11/16- spoken down to and reprimanded about mouth guard for Lila Masson. Attacked on a personal level. Told me I didn't know what I was doing and that neither chiara or I knew how to do our job properly. Attacked for standing up for myself in the meeting. Told to disregard Sydney as I work here. Told to go with what he says or he would come down on me like a ton of bricks and make my job hell. Told me I work for him. Was rude to me for the rest of the day. Very short. Witnessed by Rashmi.
08/11/16 made remarks to rashmi about me regarding my work. Says chiara and I aren't doing our job properly.
08/11/16 rashmi expressed that he treats the das differently. He goes easier on Zoe and Jess than her as they don't have DA training. She feels it is unfair and they should be treated equally
17/11/16- spoke very loud and rudely to Rashmi. Could be overheard in reception area. Was using same tone as when he berated me the other week. Told her if she doesn't listen enough and if she keeps it up she won't have a job. Told her she wasn't trying with the PHi exam.
23/11/16 was overheard berating Sydney team. Very aggressive tone, very loud. could be heard by Cherlyn and myself in the reception area. During huddle he proceeded to tell rashmi and I that Sydney team has no idea and they’re hopeless. Said that patients need to be kept with the same dentist at all times even in an emergency. Margaret had put one of lincons patients in with iman that day when aa thought he could wait to see lincon the next day.
24/11/16 discussions with rashmi regarding [Dr Avenia’s] billing. He has been billing for OPG and oral mucosal screening without carrying out the procedure. She has been deleting the items and he has scolded her for doing so.
05/12/16- made a comment about Sharna not starting today, said that she mentioned in her interview that her mother was sick and that was why she moved up here and that hopefully something happens soon or we will have ongoing problems. Made secondary comments about it at the end of the day questioning if she would be constantly taking time off.
Made remarks about what Daniel would do now that Jenna is gone as he “followed her around like a lost puppy”
Insulted the marketing team saying He didn't know what ravinder even does.
Insinuated her English is not good enough. Many comments made may have been in the interest of humour but could easily be misconstrued as racist.
15/12/16- told chiara I don’t have enough reception experience
19/12/16- cancelled casual nurse Zoe O'Connor without consulting me after I had already confirmed her for the day and rest of the week.
19/12/16- patient Alex Messina said it took 3 years to fillany get [Dr Avenia] to stop using latex gloves on his wife who has an allergy. He said he is hopeless, so so hopeless and this man is one of his long time patients/friends.
04/01/17- told Andrew the actuaries have no idea how to run a clinic and no idea about patient care and that the structure of our fee schedule for members is wrong.
05/01/17- asked me to take over doing the dentist daysheets. When I explained that I can try but i can’t guarantee I will have time to do it everyday he demanded that I do them saying that of course I have time and that I sit in front of the computer and appointments all day so it’s best that I do it. Wouldn’t listen when I tried to explain that I already have a number of tasks to complete through the day as well as general reception duties. Was rude and abrupt and dismissive of my role.
10/01/17 we ran out of procedure masks as [Dr Avenia] refused to let us place an order.
He is infuriating Andrew by micro managing the ordering and telling him what he can and can’t order
11/01/17 resubmitted treatment costS after I had reconciled accounts. When I asked that I alone be responsible for resubmission so that I always have a record of it he snapped at me “this is why do so huddle in the morning I am telling you now”
13/01/17 said Sydney team was using shift rosters as a cop out reason for their poor appointment bookings. Said they're just too lazy to book follow ups.
In fairness to Dr Avenia, I have the distinct impression that there may be some overstatement or ‘pickiness’ in recounting some of these incidents. Although I regard Ms Purcell as an impressive and truthful witness, she seemed to have at least some degree of hostility towards Dr Avenia. Moreover, I do not think any evidence emerged which satisfactorily demonstrated any want of competency or skill in Dr Avenia’s dental work or which justified a criticism that he made comments which could fairly be characterised as racialist or discriminatory.
What was clear to me was that Dr Avenia was a man not short of self-assuredness and that he was unlikely to brook criticism or dissent with equanimity. His abrasive personality, coupled with a long history of having his dental practices and freedom of action unquestioned, led him to fail to be sensitive to the feelings of staff when communicating in the workplace. This did not mean that every individual criticism of his behaviour was necessarily warranted and it may be, at times, that those with whom he dealt may have been a little too quick to take offence when none was intended. Indeed, sensibly, Ms Tregeagle was open to this possibility as being some part of the problem. Ultimately, it is hardly surprising that if a professional relationship with staff is poor from the start, and a superior or colleague is regarded as being rude and domineering, any later interaction is likely to be perceived by staff through the prism of accumulated experience. But in any event, by at least early January 2017, there was a problem and, although he may not have been entirely at fault, Dr Avenia primarily caused this state of affairs by being aggressive and domineering in his interactions with staff.
III The Revenue Drop
At around the same time, there was another development of concern within RTHF. On 11 January 2017, Ms Tregeagle had written to Dr Avenia (with a copy to others) referring to a prior discussion. The email attached a “top level” profit and loss report for each of the clinics and was part of the financial reporting that went to the RTHF Board. Those documents indicated a significant drop in revenue and Ms Tregeagle emphasised that she needed to provide an explanation to the Chief Executive Officer, financial executives and the Board on the “recent change of direction”. An email the following day indicated (by reference to both the Brisbane Clinic and the Surry Hills Clinic) that a $130,000 year to date revenue shortfall existed which was “not an acceptable result for our exec or board”. The result needed “attention, action and rectification”.
The reason for the significant revenue shortfall emerged following a series of email communications. Ms Scamuffo, on 12 January 2017, referred to the Surry Hills Clinic, prior to Dr Avenia’s involvement, booking appointments at 15-minute intervals with 45-minute new patient appointments. The email then stated that the “dental team have since been encouraged to book new patient appointments for 1 hour” and that there had been discussion discouraging carrying out a clean during the initial appointment. This was said to be “not financially viable for the clinic”. Ms Scamuffo reiterated her view that the initial appointments should be a maximum of 45 minutes and that cleaning should always be carried out during the course of the initial appointment.
Ms Scamuffo had identified that the problem with meeting the target revenue was essentially Dr Avenia’s insistence in adopting a course of conduct that he regarded as best practice but that was not regarded as being necessary by either Ms Scamuffo or Ms Purcell. The response of Ms Tregeagle was to thank Ms Scamuffo for her “good info and insights” and request a discussion with Dr Avenia to obtain his “additional thoughts” and to ascertain what could be done to “determine what has changed the results” and “how we get back on track”.
It is clear from an email the same day, that Dr Avenia had a different view. Dr Avenia’s preliminary explanation was that “we simply didn’t work enough days” and rectification involved stepping up “the number of days &/or the hourly rate”. Megan Dayhew, the Operations Business Consultant, conducted a more sophisticated analysis and established that the drop in revenue was “per day per dentist” and Ms Scamuffo pointed to the significant reduction in complex dentistry and treatment conversion. By way of background, Dr Avenia had expressed his view, as Principal Dentist, that the Sydney dentists (or at least one dentist) did not have the skills to undertake a particular procedure of “complex crowns” (T 150-1).
In short, without saying it directly, the view was being expressed that the drop in revenue was apparently related to Dr Avenia’s view as to appropriate clinical practice, which had caused a significant reduction in complex dentistry, that is, crown and bridge work. Given that the Surry Hills Clinic had apparently resolved the initial treatment issue by maintaining its practice of having 45-minute initial consultations, Ms Scamuffo’s initial analysis was not ultimately accepted by Ms Tregeagle who made the overall judgment that “what we were missing was the crown and bridge income” (T 156).
In the midst of these discussions concerning revenue drop off, Ms Tregeagle had written to Dr Avenia noting that she had encouraged Ms Scamuffo and Ms Purcell “to be very open and frank in any feedback and input they can provide about the business side of the clinic performance”. She also noted that they had been “a little hesitant and I have assured them their input is welcome and valued”. She counselled Dr Avenia to be “aware that they are feeling a little ‘out there’ and ensure they are reassured that you also value their input”. Again, in response to Ms Tregeagle’s gentle ‘handling’, Dr Avenia said he wholeheartedly agreed.
IV The January ‘Complaint’
Given the deterioration in the personal relationships within the Brisbane Clinic, it is not surprising that sooner rather than later things were bound to come to a head.
At 11:33am on 25 January 2017, Ms Scamuffo forwarded to Ms Tregeagle a printout copy of some instant messaging exchanges between Ms Scamuffo and Ms Purcell. They were as follows (punctuation and spelling uncorrected):
Briana Purcell
OMG. Chiara he is Psychotic this morning!!
I feel so uncomfortable! He is loud and aggressive. He is attacking Andrew, he has just demanded to have one of And[rew’s patients brought in today (T 246)]
He has changed the stock accounts so that Sydney does not get contacted
He has gon [sic] and ordered stock on his corporate card
He is actually frightening
his behaviour is so erratic
He is saying that they’ve messed around with the Exact settings and that it’s all wrong.
I don’t know what to do. I don’t feel comfortable here right now
Chiara Scamuffo
ok she is calling me today sometime
Briana Purcell
He is behaving like he was the day he screamed at me
Even Cherlyn says she doesn’t feel comfortable
Chiara Scamuffo
Unacceptable, action is needed
Briana Purcell
I knew this would happen! I mentioned his behaviour to Simone and Hr and I knew as soon as I did it would get worse
Ms Tregeagle gave evidence, which seemed to me to have a ring of clarity, that these communications were disturbing to her and “the fact that we’ve got a young woman saying that [Dr Avenia] is frightening and that he is behaving loudly and aggressively and erratically, taken as a whole” meant “we need to do something about this dynamic in Brisbane, whatever it is” (T 147-8).
It was clear from the evidence of Ms Tregeagle that she was in regular contact with Ms Renney and Ms Purcell and that during one or other of her conversations with Ms Purcell indicated that it would be in her best interests to talk to Ms Renney and that Ms Renney would be able to advise her. According to Ms Tregeagle, Ms Purcell was very stressed about what was happening and she said to Ms Tregeagle that she “didn’t want to raise a formal issue and have it turn into something that would be a big issue and that would cause a whole lot of trouble” but Ms Tregeagle explained that she needed to be more specific so that a discussion could take place with Dr Avenia (T 204).
Following Ms Tregeagle involving Ms Renney, and a request being made for Ms Purcell to formalise her complaint, an email was sent on the afternoon of 25 January 2017, in the following terms:
Hi Helen
Myself and a couple of other staff members are having a lot of difficulties here in Brisbane Clinic and it’s been suggested to me that I have a meeting with you. It’s very hard for me to get away from the reception desk and even harder for me to have privacy. I was hoping we may be able to have an out of hours call?
The issues I wish to discuss with you are not new, I have raised my concerns on numerous occasions in a non-formal manner and I have been keeping an incident diary I have also advised other staff to do the same. It has now reached the point where we have not seen any improvement in behaviour and we are beginning to consider formal action. I know for myself personally and for Rashmi we are concerned for what will happen if we decide to make a formal complaint. We are worried things will only get worse for us. We are very isolated here in the Brisbane office so we find it is much easier for us to be targeted. A number of staff are scared to say anything out of fear for their job security and will simply try to keep their heads down and agree with everything that is said.
For example, the atmosphere in the clinic today is very uncomfortable. It is not only myself, Rashmi, Andrew and Vivienne who feel on edge; even Cherlyn who is at the desk with me today says she feels tense and nervous, as if something is going to blow up, and she has absolutely no reason to feel like this. The current work environment here in the Brisbane clinic is not a happy and supportive one, and it is having a negative effect on staff who are experiencing the physical symptoms of stress, such as sleeplessness and anxiety. It is a genuine concern that his could cause staff to resign rather than continue to endure these volatile conditions. I realise that often passion and enthusiasm can be mistaken for aggression, however that is not how this behaviour is coming across to the clinic staff. The behaviour is very confrontational and, as such, needs to be addressed before it causes further problems.
I would appreciate any advice you can offer me in regards to this matter and I hope we can arrange a suitable time to discuss this matter further.
Briana Purcell
Clinical Co-ordinator
More than once this email was described by Counsel for RTHF, Mr Boyce, as being ‘explosive’; despite this advocate’s flourish, on any view, it was a highly troubling communication that confirmed widespread disaffection in the Brisbane Clinic and reflected the existence of a problem which was now serious and needed to be addressed with celerity.
With commendable despatch, the following day (being Australia Day), there was a long telephone call between Ms Renney and Ms Purcell during which Ms Renney said she required examples of inappropriate behaviour to substantiate the expressed concerns. In response, Ms Purcell recounted, with some immaterial differences, a number of the complaints she had recorded in her incident diary. Ms Renney concluded by noting (as recorded in her contemporaneous note):
HR went on to explain the protections and commitment of the organisation to ensure victimisation does not occur and that it can have serious consequences.
HR explained duty of care to address her concerns. Talked about her option to make a formal complaint and explained that I cannot direct her to make a formal complaint – up to her.
Regardless, we have a legal obligation to address the concerns.
HR asked why she had not raised the concerns with me – BP stated that it was “because he would call me out in front of others”.
HR asked her to keep the discussion confidential and let me know if anything happened, to rest assured that it would be addressed in a proper and fair way. Reassured her that the way it is handled aims to protect individuals and de-identify them wherever possible. For this reason, if others raise similar concerns, it adds more weight and avoids having to attach particular issues to individuals. Recommended to her that she should not discuss it with others but if approached simply reassure them that you understand it is being addressed. Need to ensure that she does not “engineer” others to mount a case so to speak.
Further enquiries were made of Dr Waymouth and Ms Anand. Dr Waymouth’s comments, as contemporaneously recorded by Ms Renney, confirmed that the primary issues relating to Dr Avenia’s behaviour were with Ms Purcell and Ms Anand, who could be “picky”. Despite this, he made a comment that was illustrative of the nature of the problem: Dr Avenia had, at times, an “explosive temperament” and “if you challenge him he gets angry”. Dr Waymouth, echoing others, described Dr Avenia as “a bit abrasive and opinionated in personality”.
It is convenient to note at this point that even though Ms Purcell and Ms Anand (in their hygiene or infection control complaints) may have been too pernickety, I reject the notion that they were motivated by anything other than seeking to address what they perceived to be a real problem; moreover, I reject, as suggested by Dr Avenia in his evidence, that Ms Purcell and Ms Anand had been deliberately engaging in ‘tittle-tattle’ or “were sort of conspiring together to write notes to Ms Tregeagle to paint me in a bad light” (T 122).
The content, or at least the substance, of these interviews by Ms Renney was reported back to Ms Tregeagle who afterwards responded with: “…it sounds like you have enough to raise serious concerns. It is a shame we are at this point”. This last comment, I am satisfied, reflected her genuine view.
V The Suspension Letter
The Suspension Letter dated 30 January 2017 (given to Dr Avenia on 31 January 2017), followed. It is a letter of some importance. Ms Renney drafted the Suspension Letter (at least partly) from a precedent she had available to her (T 271). It commenced by stating it was a “Notice of formal meeting & Suspension pending investigation”. It went on to:
(a)confirm a discussion with Ms Tregeagle (see below) advising that Dr Avenia was required to attend a meeting with Ms Tregeagle and Ms Renney that Friday in Sydney;
(b)note the meeting “will be held to discuss matters concerning your personal and professional conduct as detailed in the allegations outlined below”;
(c)advise Dr Avenia that he was “suspended from duties whilst this matter is investigated” with immediate effect;
(d)contend the suspension was not disciplinary action and did not indicate that any determination in relation to Dr Avenia’s conduct had been made, and that the ongoing suspension was to be kept under review and was to be “as brief as reasonably practicable until completion of the investigation”; and
(e)note the suspension was on full pay.
The Suspension Letter then set out a number of allegations which were specified as follows:
1.that you have failed to comply with our [Code of Conduct] in respect of your personal conduct which requires you to “treat everyone with courtesy, respect, kindness, consideration, and sensitivity to their rights”, and to “refrain from all forms of harassment and discrimination…”
2.that you have failed to comply with our [Code of Conduct] in respect of your professional conduct which requires you to take responsibility for the health and safety of yourself and others when carrying out your duties, through you behaviour towards work colleagues as stipulated below
3.that you have failed to comply with our [Bullying Policy], by repeatedly demonstrating abusive, belittling and threatening behaviour towards your work colleagues
The particular issues concerning the allegations include complaints that you have:
• repeatedly raised your voice at colleagues, as noted in the following examples
•On Wednesday 24th January, you raised your voice to Andrew Waymouth, saying words the effect that ‘your treatment plans are shit’. This altercation was overheard by 3 other staff members
•On 27 January 2017, you raised your voice at Rashmi Anand in relation to having spoken to the Clinical Co-ordinator about her concerns and said that you don’t want her talking to others
• repeatedly used threats of job loss and retribution to colleagues, as noted in the following example
•on the occasion of the morning huddle on 7 November 2016, you stated to Briana Purcell “how dare you question me. If you do it again, I’ll come down on you like a ton of bricks”
•that you have stated to a staff member (Rashmi Anand) “you don’t take your job seriously, and if you can’t, you won’t have a job”
•on 27 January 2017, you made a statement to Rashmi Anand, to the effect of “if I go, you won’t even have a job, so keep that in mind”
•that you have made statements to the effect of “I can fire you”
•that on non-completion of the PHI Code of Conduct training, you have stated to Rashmi Anand, words to the effect of “if you can’t pass next time, you don’t have a job”
•repeatedly used sarcasm and belittling statement to colleagues, as noted in the following examples
•on 7 November 2016, you said to Briana Purcell when discussing a patient’s treatment, “what do you think, you don’t know how to do your job”
•that you have made statements to colleagues that other staff members are not good at their jobs and these statement have been overheard
•repeatedly discriminating against some staff members by criticising them and not sharing information in team huddles
•that on at least 2 occasions (19/12 & 27/12) you have required 1 dental assistant to support two dentists, so that there is insufficient time for tea breaks and lunch breaks. This contravenes the Health Professionals and Support Services Award and impairs the health and safety of the workplace
(bold emphasis added, underlining in the original).
It is useful to pause the narrative briefly to focus on the use of the word ‘include’ bolded above.
It emerged in the evidence that Dr Avenia had gone through and had annotated each of the particulars raised on the second page of the Suspension Letter. It was clear that he had no difficulty in understanding the particular allegations raised. In Section I (Issue 4) below I will deal with Dr Avenia’s contention that it is no answer to that to say specified allegations could be dealt with if Ms Tregeagle had made a decision to ‘hold back’ unspecified allegations to possibly use them later. For present purposes, I accept Ms Tregeagle’s evidence that, by signing the Suspension Letter with the word ‘include’, she was not, in some sort of contrived, tactical way, leaving her options open to rely upon other material available to make out a case against Dr Avenia (T 209). Although Ms Tregeagle accepted in cross-examination that “she decided on 30 January that [she] would be holding back some of the content of the allegations” (T 210), that intention was subject to the discussion with (and response by) Dr Avenia at the proposed meeting. As Ms Tregeagle explained (T 209):
I don’t think it was at all as contrived as that. We had… a summary of the key points of the complaints that we had. Our intention was to say that these complaints, if they are proven, would prove to be a breach of these policies of employment.
Going back to the terms of the Suspension Letter, it then went on to indicate that Dr Avenia would be given the opportunity to respond and provide any information that may “help to answer or mitigate the above concerns”. Finally, the letter noted that: “one possible outcome of the meeting may be disciplinary action taken against you, up to and including termination of your employment”.
VI The Conversation of 31 January and Dr Avenia’s Initial Reaction
As can be seen from the terms of the Suspension Letter, despite being drafted and dated by Ms Renney the previous day, it was always recognised that it would be provided following a discussion between Ms Tregeagle and Dr Avenia.
Although various accounts were given in the evidence of what occurred at that meeting, including a somewhat different account in Ms Tregeagle’s affidavit evidence, I find that it occurred consistently with the terms of Ms Tregeagle’s file note prepared shortly thereafter. The note is detailed but is sufficiently important to reproduce in full:
Discussion with Arnaldo, approximately 1.30pm, Tuesday 31 January
I advised Arnaldo that we had an issue we needed to discuss that was an unpleasant one. I provided him with the letter and asked him to read it and then we would discuss the matter.
He made a comment along the lines of ‘if it’s all over now we should just get it over with’. I explained that this was not what was happening, that we have a duty of care to all employees, himself included, and that this was a standard process that would apply to any such situation, that we need to give him the opportunity to know what has been raised and to respond to the matters. I explained that we want to look after everyone in this process and ensure that everyone is treated fairly. He responded calmly to the letter, commented that ‘he didn’t see this coming’. He also said he would take the next couple of days to get is [sic] thoughts straight so he could respond to the issues raised and commented that he felt what was the issue here was ‘vexatious claims’ as he had alluded to once before in a discussion with me where I was raising concerns brought to me by DAs over his infection control practices (which he commented were slander). He made a comment that suggested this would only end in his dismissal, I explained that that was not an outcome in anyone’s best interests and I encouraged him to see the situation as salvageable, that no one involved wants to have a conflict such as this hanging over their heads and that I believed that everyone could overcome this and build a positive working relationship, but that it would need a willingness on behalf of everyone involved to admit the shortcomings and work together to improve the situation. I expressed that an experience such as this could actually prove to be bonding for a team that can work its way through it. [Dr Avenia] commented that he felt like the little guy coming up against the big corporate’. He asked me if the suspension meant he had to leave immediately. I said no, he was able to finish the notes he wanted to do, and I advised him that as the rest of the team were at lunch and then attending a meeting, he could slip out quietly and that I would let the team know he will be away for the rest of the week. He wanted to ensure that there would be plenty of time for the meeting in Sydney and I advised that we’d allow a good couple of hours for it and we could take as much time as he felt we needed. I advised that he was entitled to bring a support person with him and that he could advise me of who that might be so we could book their travel, he commented that he was very comfortable with [Ms Renney] and I and didn’t feel that was necessary. I apologised that we were having to deal with this situation and he commented that he was ‘sorry he had been such a disappointment to me’. I commented that it would be in his best interest to not engage with any of the staff and ensured that they were all at lunch as he went back into the practice. At approximately 3.30 the meeting was about to commence and I checked to see if he was ready to leave, he advise me he was just finished and prepared to leave. He was calm and polite throughout.
(emphasis added)
What is immediately evident is the disconformity in tone and substance between what was said to Dr Avenia in this conversation and what was communicated to him formally, in writing, in the Suspension Letter. This disconformity can be put down to Ms Renney’s use of a less than apposite precedent. Although the subjective intentions of both Ms Tregeagle and Ms Renney as to the ‘process’ and preferred outcome of the proposed meeting were accurately conveyed orally, the attempt to convey them in writing miscarried. RTHF’s case (and the evidence of Ms Tregeagle and Ms Renney) was that the Suspension Letter was not triggering a ‘formal investigation’. When Ms Renney, the author, was taken to the Suspension Letter in cross-examination, she accepted, unsurprisingly, that a recipient “could believe that it was a formal step” (T 271). Indeed, Ms Tregeagle went a little further and accepted, correctly in my view, that in the light of her subjective intentions (and notwithstanding she did not think so at the time), the letter could be read in a misleading way (T 233).
When Ms Renney was asked to explain the references to ‘investigation’ in the heading and body of the Suspension Letter (when no disciplinary investigation was said to have been taking place) her somewhat puzzling explanation (at T 271) was as follows:
My practice is that if there is a formal investigation under way or about to take place, that I would actually say in the letter “formal investigation”, so in this context investigation means gather information, look into. It’s intended as a – a more general word. I – I can see why you would ask the question. Had this letter been signalling a formal investigation, it would have said so and it would have been attached to some other correspondence and documentation …
It is little wonder confusion was possible. In the context of what I accept to have been the subjective intentions of the author (and Ms Tregeagle), it is unsurprising that the recipient of such a written communication could legitimately labour under a misapprehension as to what was going on. Despite this, given what had been said to him on 31 January 2017, when the Suspension Letter was first read in the light and context of the conversation with Ms Tregeagle, Dr Avenia’s immediate apologetic and calm reaction to what had been communicated is understandable. As he explained in his evidence (T 67):
…my initial response to Simone was that I can explain – put all these allegations into context, it will make sense, I’ve got nothing to worry about, I don’t even need a support person…
This soon changed. Dr Avenia then “talked to some friends” who counselled him: “[y]ou’ve got to be careful with these corporates, they will just railroad you and you will be out the door on Friday” (T 67). His friends also advised Dr Avenia to get legal advice. Matters then escalated quickly.
VII The Dispute as to the Process
Given the terms of the Suspension Letter, it is easy to see why the solicitors Dr Avenia consulted, HWL Ebsworth Lawyers (Ebsworths), would initially proceed on the basis that a formal disciplinary investigation was being conducted and that the meeting Dr Avenia was directed to attend the following Friday would consider the substantive merit of the allegations and that a disciplinary response, up to termination, could result.
In the circumstances, the terms of the urgent response of Ebsworths to RTHF (sent on the day they were instructed, 2 February 2017) were not surprising. The letter insisted that Dr Avenia be afforded procedural fairness and further:
(a)contended that, given the proposed meeting was dealing with allegations which, if proven, meant RTHF “will take disciplinary action up to and including termination of [Dr Avenia’s]employment”, the 48 hours allowed to meet the allegations in the meeting (which had proposed to be convened the following day) was “grossly inadequate and improper”;
(b)requested policies and procedures associated with or incidental with the Suspension Letter; and
(c)informed RTHF that Dr Avenia “will not be in a position to attend” the meeting but noted the solicitors anticipated that Dr Avenia would be able to address the allegations “within 7 days upon receipt of the applicable policies and procedures”.
Although an allegation of improper behaviour was unfortunate (and foreshadowed a pugnacious style more plainly seen in later communications), this response cannot be legitimately criticised. Unlike Dr Avenia, the solicitors, when instructed, read the letter divorced from the immediate context of the discussion with Ms Tregeagle (as recorded in the file note extracted at [54] above). Although in the end it does not really matter, I infer it is likely that a complete and accurate account of the discussion between Ms Tregeagle and Dr Avenia was not conveyed to Ebsworths or was not conveyed by Dr Avenia in a way that led Ebsworths to view the Suspension Letter as anything other than accurately recording the subjective views and intentions of RTHF. One would have thought that, given reference was made to Dr Avenia only being given only 48 hours’ notice of a meeting on 3 February 2017, Ebsworths must have been unaware that the letter was given to their client in a meeting with Ms Tregeagle on 31 January 2017. For reasons I will canvass (at [86]-[87] below), this may not be a safe assumption.
Ms Tregeagle promptly responded the following day. This letter:
(a)responded to the suggestion that Dr Avenia was only provided with 48 hours’ notice;
(b)pointed out that Dr Avenia had already been provided with a copy of the Code of Conduct and the Bullying Policy upon commencement of his employment but noted that RTHF had, that day, organised to express post copies of relevant policies and procedures to Dr Avenia; and
(c)asserted that RTHF was not satisfied there was “a reasonable basis for Dr Avenia to refuse to attend the meeting” but indicated that it would provide a further opportunity for Dr Avenia to attend a meeting as directed.
A letter of the same date was sent to Dr Avenia and contained a direction to attend a further meeting on Friday, 17 February 2017. It also enclosed copies of the Code of Conduct and the Bullying Policy (but not the RTHF Grievance Policy) and noted that Ms Tregeagle had separately corresponded with Ebsworths.
Two weeks then elapsed and on 16 February 2017 (that is only a day prior to the meeting scheduled for 17 February), a 14-page letter was received from Ebsworths (16 February Letter). The 16 February Letter commenced by noting that Ebsworths considered it unreasonable for Dr Avenia to attend the meeting the following day. It required, before Dr Avenia attended any meeting, that he be provided “with all information about the investigation process, the policies and procedures that apply to these matters, and all the particulars (with full and complete specifications) of allegations that are levelled against him”. Ebsworths went on to contend that they considered it unreasonable for Dr Avenia to attend any meeting or provide a response to the Suspension Letter “before all of this information is provided to [Dr Avenia], and he has had a reasonable opportunity to consider and respond”.
The 16 February Letter was aggressive, confrontational and contained a very large number of oppressive requests. Although Dr Avenia, through no fault of his own, had received mixed messages as to RTHF’s process and intentions and no doubt (after being ‘geed up’ by his friends) was very upset at the suspension, the 16 February Letter was not couched in temperate tones, nor was it conducive to finding some sort of constructive solution to the problem that had arisen.
Moreover, the 16 February Letter had difficulties which transcended tone. It was premised on the basis that the Code of Conduct and the Bullying Policy had contractual force, which entitled Dr Avenia, as matter of contract, to insist upon compliance with the Code of Conduct and the Bullying Policy during the investigation process. Indeed this assertion (which is based on a misconceived reading of clause 3.1(b) of the Employment Agreement) was only abandoned when the case was opened (T 13). Leaving this to one side, an allegation was also made that RTHF had (at least in part) “pre-judged these matters by already determining that [Dr Avenia] may be terminated as a result of the investigation”. It was suggested this pre-judgment had arisen in circumstances where RTHF had failed to consider a number of matters detailed in the Code of Conduct.
It was said that, as a result of these alleged breaches, Dr Avenia “has a legitimate complaint that [RTHF], and [Ms Tregeagle] have no regard for your own policies and procedures and accordingly, will continue not [sic] comply with them during the investigation”. Ebsworths went on to require a full response to a series of questions raised about the policies and “a written explanation as to how [RTHF] will rectify these breaches, compensate [Dr Avenia] for the loss and damage already suffered, and not permit further breaches from continuing”.
A series of ‘interrogatories’ were then sought to be administered directed to the investigator’s credentials and experience, what precise steps had been taken to ensure independence, and ensuring that the investigator did not suffer from real or ostensible bias.
The letter then turned to the allegations and a litany of so called “further and better particulars” were requested, a very large number of which were patently absurd including, by way of illustration, requests such as:
(a)What does RTHF mean by “personal conduct”?
(b)How does RTHF define “courtesy”?
(c)How does RTHF define “respect”?
(d)How does RTHF define “kindness”?
(e)How does RTHF define “consideration”?
(f)How does RTHF define “sensitivity to their rights”?
Although some particulars in relation to the allegations contained in the Suspension Letter were directed to seeking specificity in relation to the particular issues that had been raised, when viewed as a whole, given: (a) their client’s understanding and state of knowledge about the particular matters identified; and (b) its generally aggressive and oppressive demands, it is regrettable that a letter in the terms of the 16 February Letter was sent. With commendable frankness, Counsel for Dr Avenia did not seek to justify all the contents of the letter.
Before turning to the response of RTHF, to provide context, it is worth considering Dr Avenia’s attitude towards his employment at the time around this communication.
After the suspension, it is plain that Dr Avenia had reached the view that he was no longer bound by his bargain. As he explained (T 106):
… because RT Health breached the agreement and showed bad faith to me, I had no interest in upholding my end of the agreement. I’ve shown them a lot of goodwill leading up to that point and then they chose to – to suspend me, with the threat of termination of employment, and so I didn’t feel that any of these things [that is, his obligations to RTHF] applied to me anymore.
In this light, the aggressive approach taken by Ebsworths, presumably on the instructions of Dr Avenia, is put into some context. It appears that, by the day before the 16 February Letter (and at the time he had formed the view following what he perceived to be the breach of RTHF), Dr Avenia no longer had an interest in upholding his end of the agreement. On 15 February 2017, Dr Avenia completed an Application to Redirect Mail form and lodged it online with Australia Post. The form that Dr Avenia filled out contained the following declaration:
6 Declaration by the person lodging this form – I have authority to include the people listed above. I understand it is a criminal offence to redirect a person’s mail without their authority or to give Australia Post false or misleading information.
(emphasis added)
The application sought to redirect mail from the address of the Brisbane Clinic (Edward Street, Brisbane City) to a new address (being an address at Norman Park) from 21 February 2017, for a period of three months.
On 16 February 2017, Australia Post sent a letter addressed to Dr Avenia at the address of the Brisbane Clinic. The letter noted that an application for a mail redirection service had been made and indicated that if a request to redirect mail was not authorised, the recipient should contact Australia Post. On 20 February 2017, the Australia Post Customer Recovery Team was told by RTHF that the mail direction was unauthorised and that the redirection, scheduled to commence the following day, ought not to occur. On 21 February 2017, Australia Post contacted Dr Avenia by email informing him that Australia Post had received an ‘inquiry’ in relation to the mail redirection application and that they “have an obligation to investigate”. Accordingly, Dr Avenia was advised that he needed to speak urgently with a representative of Australia Post so that it could determine whether the redirection ought to occur. In the interim, the mail addressed to the Brisbane Clinic had “been placed on hold from 21 February 2017”.
Ms Tregeagle gave evidence (T 224) that the view within RTHF was that it was “felt that the business that [RTHF] purchased was being effectively stolen back by virtue of mail trying to be redirected, phones stopping being redirected and emails stopping redirecting”. This allegation of ‘stealing the business back’ was never put to Dr Avenia in terms and I do not make any such finding. As noted above however, Dr Avenia, after suspension, “didn’t feel” that any of his obligations to RTHF were subsisting and he had no further intention to be bound by the Employment Contract. No complaint was pressed in final submissions as to email and telephone redirection, but I will deal, in Section I (Issue Six) below, with the allegation made by RTHF that the attempted mail redirection by Dr Avenia constituted a breach of his duty of fidelity and constituted serious misconduct.
Returning to the narrative of the communications between RTHF and Dr Avenia, on the same day that Ms Tregeagle wrote to Dr Avenia complaining about the redirection of mail (on 21 February 2017), she also wrote a letter to Dr Avenia referring to the 16 February Letter. Again, the terms of this letter are not ideal.
What should have been evident to RTHF was that the initial letter from Ebsworths in response to the Suspension Letter sent on 2 February 2017, and the longer 16 February Letter, operated on the stated premise that RTHF was conducting a disciplinary investigation of some formality into the matters the subject of the Suspension Letter and that if the allegations were proved, then disciplinary consequences, up to and including termination, could result. I have already found (at [54]-[57]) that this was not the subjective intention of Ms Tregeagle and Ms Renney in sending the Suspension Letter. In responding to the 16 February Letter, one would have thought that RTHF would have, in light of what was being said by Ebsworths, considered and reflected upon the terms of the Suspension Letter, appreciated that it had been maladroitly drafted, and that matters had now gone off the rails. Although Ms Tregeagle had ample justification in believing the 16 February Letter was oppressive, RTHF should have realised that the genesis of the incorrect premise in Ebsworths’ correspondence was the mismatch between the tone and substance of what had been said to Dr Avenia and what was communicated to him in writing. Rather than frankly accepting that the Suspension Letter had failed to accurately express the intentions of RTHF, when the response came on 21 February 2017 (21 February RTHF Letter), it was reciprocally combative.
The 21 February RTHF Letter referred to the letter from Ebsworths and stated that the “premise of your Solicitor’s letter is false. That is, an investigatory process has not been commenced by [RTHF] as yet”. It referred to the fact that allegations had been made to a manager but then went on to state that those who had “raised the allegations have not made a formal complaint”. Dr Avenia was told that the matter was “at a preliminary stage” and that RTHF had wished to meet with him “to discuss the allegations and your preliminary responses to them prior to commencing any investigatory process or taking any disciplinary action”.
The 21 February RTHF Letter went on to refer to the directions to attend meetings and said, incorrectly, that at no stage did RTHF “state the meeting on 3 February 2017 was an investigation interview”. In any event, RTHF made it clear that no decision regarding termination of Dr Avenia’s employment had been made and then turned to what it described as the “[w]ay forward”. Correctly, RTHF recorded that it regarded the 16 February Letter as “unhelpful”. However, it then made unjustified criticism that Ebsworths had made “unfounded assumptions regarding the current process being undertaken”. It then correctly indicated that those assumptions, contained in the 16 February Letter, were dealt with in the 21 February RTHF Letter, in the sense that any misapprehensions had now been addressed.
It was against this background that the letter went on to state:
For the third time I direct you to attend a meeting to discuss the allegations made against you on Thursday 2nd March at 1.00 p.m. at the Martin Place meeting room in our Surry Hills office, with myself and Helen Renney of [RTHF]. As stated previously you are able to attend that meeting with a support person of your choosing. Please note that a support person is there to support you and not as an advocate.
Counsel for Dr Avenia made the point (T 371) that, notwithstanding it might be thought ‘smart’ points were being taken and that the 16 February Letter was very long, there were “two very simple answers” available to RTHF: first, to explain that an investigatory process that might be disciplinary was ongoing, provide details of Ms Purcell’s complaint and the three transcripts of staff discussions which made allegations, and then make it plain that those complaints required a response; or secondly, to accept that a badly drafted letter had been sent, that there was a less formal investigation being conducted “because we know there’s problems between you and Bria[n]a and Rashmi, and we’re trying to sort them out.” The 21 February RTHF Letter, it was suggested, did neither.
That submission may be accepted but only up to a point. For reasons I have explained, the failure to appreciate and accept that the Suspension Letter was confusing, and its combative tone, were both regrettable. However, given: (a) what had been communicated orally to Dr Avenia on 31 January 2017; and (b) the whole of the 21 February RTHF Letter when read fairly, the intentions of RTHF were clarified. As noted above, it was emphasised that the “matter is at a preliminary stage” and that RTHF wanted to meet with Dr Avenia to discuss the allegations and obtain “preliminary responses”. In this way, although the 21 February RTHF Letter stopped short of frankly accepting that the Suspension Letter was badly drafted, in substance, a form of the second option identified by Counsel for Dr Avenia in [82] was adopted and, importantly, RTHF’s true intentions had been communicated.
A further letter from RTHF followed on 23 February 2017 (23 February RTHF Letter). This letter reminded Dr Avenia of his obligations under the Employment Agreement and the APA, that RTHF had “full ownership of the Assets” and referred to RTHF’s directions that he desist from redirecting mail. Reference was also made to RTHF becoming aware that the telephone number and email address of Dr Avenia’s former practice were no longer redirecting. These matters were said to be part of the matters in respect of which RTHF required him to “provide explanatory comments” at the meeting he had been directed to attend on 2 March 2017.
One would have thought that, in light of the 21 February RTHF Letter and its consistency with what had been communicated orally on 31 January 2017 by Ms Tregeagle, wise heads would have prevailed. Instead, what happened on 2 March 2017 was that Ebsworths sent a further letter (2 March Letter). The 2 March Letter commenced by making the serious allegation that RTHF was deliberately corresponding with Dr Avenia by post in an attempt to intentionally cause “prejudice, unnecessary delay and disruption to [Dr Avenia]”. There was no reasonable basis for such an allegation.
A good example of the highly aggressive and ‘point taking’ approach now adopted on behalf of Dr Avenia emerged from this letter and was related to this serious allegation. Dr Avenia gave oral evidence in chief that he received the 21 February RTHF Letter (and another letter of that date from RTHF) on 22 February 2017 and provided them to his solicitors on 23 February 2017 (T 43).
Given this fact, it is disturbing that the 2 March Letter noted that pursuant to s 160 of the Evidence Act 1995 (Cth), correspondence sent by post is not deemed to have been received until the fourth working day after it was posted. As a consequence of this provision, it was asserted by Ebsworths that “the letter was received by our client on Monday, 27 February 2017” (emphasis added). At best, this letter evinced confusion of thought as to the operation of deeming provisions, but whatever misapprehensions were involved, contrary to the true position as to receipt, the 2 March Letter conveyed the assertion that only two business days’ notice were being given of the proposed meeting. There is no other available conclusion than that this assertion as to the date of receipt was made for tactical reasons and that Dr Avenia and his solicitors knew the assertion did not correctly convey when he had received notice. The asserted shortness of notice, together with the fact that the earlier oppressive letter of 16 February Letter had not been satisfactorily responded to, was said to render a direction to attend the proposed meeting unreasonable and unlawful.
The 2 March Letter went on to make the point that there was an inconsistency between the statements made by RTHF. It was then said:
For you to adopt such a position demonstrates either, or both, an unreasonable prejudice against our client and/or an inability to provide any reasonable response to our client’s enquiries and complaints in the 16 February Letter.
In either case, we do not understand why you would deny an investigation has been commenced…
There was then reference to the terms of the Suspension Letter and the suggestion was made that the contention that the matter was at a “preliminary stage” was inconsistent with RTHF’s “actual and threatened conduct”. The letter went on to state that:
The combine [sic] effect of the [Suspension Letter] and the 21 February [RTHF] Letter is that [RTHF’s] position is that [RTHF] is able to terminate [Dr Avenia’s] employment after having a preliminary meeting with him, and without conducting any proper investigation into the matter. Such a position is unreasonable, unlawful and demonstrates [sic] total prejudice [RTHF] has towards [Dr Avenia].
Breaches of the Fair Work Act 2009 (Cth) (FWA) and breaches of contract were alleged, and RTHF was said to be “on notice that as a result of the adverse action and to prevent further adverse action, injunctive relief proceedings will be commenced in the Federal Court of Australia (without further notice) should RTHF continue not to comply with its legal obligations and to engage in unreasonable conduct”.
There was more to come. Ebsworths sent another letter on 2 March 2017 referring to the redirection of mail and ancillary matters. Again, there was a misconceived reference to s 160 of the Evidence Act. Moreover, notwithstanding that Dr Avenia knew exactly what had occurred in relation to the mail redirection, the following was said:
In support of the Mail Redirections Allegation, [RTHF] alleged that: “Australia Post has written to [RTHF] confirming same”. You have not provided a copy of this correspondence. We require copies of all correspondence, including letters, emails and file notes of conversations, between Australia Post and [RTHF] regarding the Mail Redirections Allegation.
Please advise as to the basis upon which you had authority to make enquiries about our client’s mail and communication with Australia Post (a third party) about our client and his mail without his consent. Please provide particulars as to the basis upon which you advised Australia Post that you had authority.
It appears that [RTHF] has breached our client’s privacy, applicable privacy legislation and we request a copy of [RTHF]’s privacy policy forthwith.
Further, the Mail Redirection Allegation has been made after [RTHF] received the 16 February Letter, which made complaints and enquiries about our client’s employment. It appears [RTHF] has made the Mail Redirection Allegation in retaliation of the 16 February Letter which is adverse action and unlawful.
Although we have not been apprised of the information necessary to provide a full response, we observe that our client would be within his rights to request that correspondence addressed to him be delivered to any address of his election. [RTHF] has no legitimate claim over letters or correspondence addressed to our client. Such correspondence may include Court documents, such as subpoenas, personal bills, personal correspondence and medical information.
To the extent that any correspondence is related to patient care, we note that it is [RTHF] that has taken steps to prevent [Dr Avenia] from fulfilling his duties and responsibilities to provide quality patient care and remain in contact with patient management (if required). In this regard, the suspension required our client to remain available to perform his roles and responsibilities at any time (if necessary).
We remind you that the National Dental Board of Australia Code of Conduct requires, amongst other things, that our client “facilitate[e] [sic] [the] coordination and continuity of care”. Given the conduct of [RTHF] to date, our client is concerned that [RTHF]’s conduct may prevent or impede our client’s compliance with his ethical and professional obligations. [RTHF] is on notice.
(original emphasis)
Why Ebsworths were not apprised of the information necessary to provide a full response was unexplained. Indeed, in relation to another allegation made by RTHF, this letter can be described as disingenuous. As to email redirection, which was admitted by Dr Avenia in the course of his evidence, it is said that RTHF had made “no specific allegation as to [Dr Avenia’s] conduct. Rather, it simply alleges certain things have occurred (again, without providing details or proof), but makes no attempt to draw a connection between [Dr Avenia] and the conduct”. Dr Avenia had made a conscious decision to redirect his email as he considered he had a perfect entitlement to do so. It does not reflect well on Dr Avenia that tactical positions of this type were being taken in correspondence, presumably on his instructions.
Returning to the chronology of events, on 7 March 2017, RTHF sent the Show Cause Notice referring to the refusal to attend meetings on 3 February, 17 February and 2 March 2017 and alleging that each of the directions to attend those meetings was reasonable and lawful. It asserted that the continual refusal to attend was a breach of the Employment Contract. Additionally, reference was made to further alleged serious misconduct being the redirection of mail and the redirection of Dr Avenia’s email. It suggested that Dr Avenia could not return to work at the Brisbane Clinic by reason of:
(a)his present conduct in refusing to comply with lawful and reasonable directions;
(b)the allegations made against him remaining unresolved; and
(c)the staff at the Brisbane Clinic having “significant concerns about working with you”.
It follows that I would regard this clarification as sufficient to render a direction to attend such a meeting, without provision of further particulars, reasonable, subject to consideration of the additional matters upon which Dr Avenia relies: first, that other allegations would be discussed at this meeting that “had no reasonable relationship with the employment”; and secondly, that termination remained a possibility.
As to the first of these matters, it will be recalled (from [84] above) that the 23 February RTHF Letter referred to Dr Avenia’s obligations under the Employment Agreement and the APA, the attempted redirection of mail from the Brisbane Clinic, and the redirection of the email and telephone services of Dr Avenia’s former practice, and required Dr Avenia to “provide explanatory comments” at the 2 March 2017 meeting. The suggestion that there was not a reasonable relationship between these matters and Dr Avenia’s employment is, with respect, difficult to understand. This does not amount to anything other than a reasonable direction.
As to the second of these matters, that termination remained a possibility at the 2 March 2017 meeting, the 21 February RTHF Letter, in terms, made it plain (and I accept) that as at 21 February “[n]o decision regarding termination” has “been made by [RTHF]”. A preliminary response was required prior to “commencing any investigatory process or taking any disciplinary action”. The matter, it was said, “was at a preliminary stage” and I have already found that this represented RTHF’s intentions. Termination for cause was always a possibility after some sort of formal investigative process but, as was expressed by Ms Tregeagle on 31 January 2017, this was not a desired outcome. When the 21 February RTHF Letter is read as a whole, including those parts which show how RTHF was at pains to disabuse Dr Avenia of any notion that a disciplinary investigation was on foot, the possibility that termination for cause may occur at some later time did not render the direction to attend the 2 March 2017 meeting unreasonable. There was, additionally, evidence at the hearing that termination remained a possibility at the meeting of 2 March 2017. This evidence must be seen in context. In a theoretical sense, that was always the case; although the possibility might be considered highly unlikely, Dr Avenia could have said he had bullied staff and that he had no intention of changing his ways, or confessed to RTHF his actual state of mind by the time of this proposed meeting that he longer regarded himself as bound by his bargain. Whether the response to such an unexpected development would have been to reassess the intention to retain Dr Avenia and invoke the power to terminate during the Probation Period or dismiss for cause is not to the point. Even if termination (although not desired by RTHF) was a possibility in the sense described, the purpose of the meeting was as communicated in the 21 February RTHF Letter. Dr Avenia had been apprised with sufficient information as to the purpose of the meeting, and as to what was proposed to be discussed, in order to participate.
It follows that, despite the direction being couched as a ‘third’ reasonable direction (a matter I discuss in Issue Five below), the direction in the 21 February RTHF Letter to attend a meeting to discuss the allegations on 2 March 2017 was reasonable, made pursuant to the Reasonable Direction Provision and Dr Avenia was obliged to comply.
The final matter I need to address under this Issue Four is whether failing to accede to an independent investigation was in breach of the Best Endeavours Term or the Express Good Faith Term. Although it is sufficient to resolve this question as pleaded by reference to the fact that such express terms did not apply, I will go further and address the more particular question as to whether failing to accede to an independent investigation in some way affected the reasonableness of any direction to attend a meeting to discuss the allegations or the issuing of the Show Cause Notice. Of course, the offer of an independent investigation made by Dr Avenia does not affect the reasonableness of the direction to attend the meeting on 2 March 2017. This is for at least three reasons: first, the offer was made on 7 March 2017 and could not have impacted upon the direction to attend the meeting proposed to be held on 2 March 2017; secondly, given the findings I have made as to the purpose of convening any meeting with Dr Avenia, it was entirely appropriate to elicit Dr Avenia’s preliminary response before considering what remedial steps should be taken (if any). These steps may well have included some independent mediation or further fact finding but this does not mean that there was any obligation to adopt the particular proposal suggested by Dr Avenia. By the time the Show Cause Notice was sent, it was plain Dr Avenia was not compliant with the direction made for him to attend such a meeting. Thirdly, the conditions to the offer (see [95] above) included obligations being accepted by RTHF that Dr Avenia had no contractual right to impose – such as paying for a former Judge to engage in the process, giving up its contractual right to terminate during the Probation Period and undertaking that Dr Avenia’s employment would not be terminated without seven days’ notice.
Issue Five: Lawfulness of the Show Cause Notice
This issue has three components. Whether the giving of the Show Cause Notice on 7 March 2017, asking Dr Avenia to show cause why his employment should not be terminated was:
(a)in breach of the Express Best Endeavours Term;
(b)given in bad faith in breach of the Express Good Faith Term; or
(c)lawful and supportable having regard to the serious misconduct alleged.
I have already answered each of the first two of these questions above: there was no Express Best Endeavours Term as alleged and there was no exercise of bad faith.
Given my findings as to the unreasonable direction in the Suspension Letter, it was not correct to assert in the 21 February RTHF Letter that a lawful direction to attend a meeting was being made to Dr Avenia for a third time. Despite this (and the other shortcomings in the letter), the direction was, for reasons I have explained, lawful, and the failure to comply with it by 7 March 2017, justified the Show Cause Letter. The Show Cause Notice was not unlawful.
Issue Six: Lawful Termination?
RTHF contends (APOD [50](m), (q)-(s)) that it was entitled to terminate Dr Avenia’s employment:
(a)without citing any reason, “on 10 March 2017”, that is, during the Probation Period, pursuant to clause 2.1 “on 1 weeks’ [sic] notice for any reason (other than a prohibited reason)” (Probation Basis);
(b)pursuant to clause 14.1(b)(iv), by reason of Dr Avenia failing to observe any lawful and reasonable direction (Reasonable Direction Contractual Basis);
(c)further, or in the alternative to (b), pursuant to clause 14.1(b)(xiii), because Dr Avenia engaged in conduct which at common law justified summary termination and which also constituted a breach of an express (or alternatively, implied) duty of fidelity owed by Dr Avenia to RTHF (Lack of Fidelity Contractual Basis).
Since contractual termination pursuant to clause 14.1(b)(xiii) had, embedded into it, examination of conduct which justified summary termination at common law, there was overlap between this alleged contractual basis of termination and submissions directed to RTHF’s common law right to terminate for serious misconduct arising from two aspects of Dr Avenia’s conduct: (a) “outright gross disobedience” in refusing to comply with reasonable directions and/or (b) the wrongful redirection of mail. It was not pleaded or suggested, however, that other than grounding a contractual right to terminate, that the common law right to terminate was engaged or exercised.
I will turn to each of the alleged contractual bases of termination but in doing so, it is necessary to deal with a preliminary issue of construction.
Clause 14.1 and Summary Termination
At [135] above, I made brief mention of the Summary Termination Provisions. They were contained in clause 14.1 “Termination of Employment” and relevantly provided:
Termination: The Employment may be terminated in the following manner:
***
(b) Summary Dismissal: [RTHF] may immediately terminate the Employment without notice or payment in lieu of notice if:
(vii) [Dr Avenia] fails to perform or observe any lawful and reasonable direction or instruction of [RTHF];
(viii) [Dr Avenia] wilfully, persistently or materially fails to perform or observe any material clause of this [Employment Agreement];
***
(xiii) [Dr Avenia] engages in any other conduct which at common law justifies summary termination…
As can be seen, clause 14.1(b)(xiii) provided RTHF with the right to terminate Dr Avenia’s employment summarily where Dr Avenia “engages in any other conduct which at common law justifies summary termination” (emphasis added). The emphasised words raise an issue of construction not addressed by the parties. It can be expressed in this way: if the two aspects of Dr Avenia’s conduct relied upon fell within one or other of the preceding subclauses of clause 14.1(b), how can that specified conduct constitute “other conduct” for the purposes of clause 14.1(b)(xiii)?
The immediate difficulty I have with a proposition that RTHF had the right to terminate Dr Avenia’s employment summarily under clause 14.1(b)(xiii) for any type of conduct which would justify summary dismissal at common law, is that it gives no content to the words “other conduct” in the subclause. It seems to me that a correct reading of clause 14.1(b)(xiii) is that it operates in a manner which is subordinated to the specific species of conduct contemplated by the preceding subclauses of clause 14.1(b), and as a ‘catch-all’ to ensure that RTHF retained the contractual right to terminate for conduct not falling within the preceding subclauses but nevertheless entitling RTHF to dismiss Dr Avenia in circumstances where RTHF would otherwise be entitled to summarily dismiss at common law.
It follows that in circumstances where I determine below that the two aspects of Dr Avenia’s conduct relied upon fall within other subclauses of clause 14.1(b), the relevant conduct does not constitute “other conduct” (as that expression is used in clause 14.1(b)(xiii)) and therefore clause 14.1(b)(xiii) is not engaged. I mention this for the sake of completeness, not because I consider it matters: RTHF’s final submissions were sufficiently broad to embrace an argument that RTHF had a right, in the circumstances, to dismiss Dr Avenia summarily under any applicable subclause of clause 14.1(b). Although the relevant parts of the pleading are not pellucid, the written and oral submissions of RTHF make it clear that contractual support for summary termination (on the two specified aspects of Dr Avenia’s conduct, being a failure to comply with reasonable directions and the mail redirection) was sought in any way it could.
In any event, I now return to considering the bases specified above.
Probation Basis
The difficulty with the submissions of RTHF in reliance on clause 2.1 is addressed in answer to Issue Seven below. There is no basis on the evidence for thinking that RTHF ever intended to rely on the power under clause 2.1 to terminate Dr Avenia’s employment during the Probation Period; indeed, all the evidence was to the contrary of that proposition. Although a frustrated intention to invoke the power to dismiss without cause on 10 March 2017 may be relevant to the question of damages, to call in aid clause 2.1 as a basis for a termination which occurred after the expiry Probation Period does not make sense, legally or logically.
Reasonable Direction Contractual Basis
I have already found (see [228] above) that the direction made by RTHF to Dr Avenia to attend the meeting on 2 March 2017 was a lawful and reasonable direction. There was nothing about the further letter from RTHF that followed shortly after the direction (being the 23 February RTHF Letter, see [84] above), which impacted upon the lawfulness of the direction that Dr Avenia attend the meeting on 2 March 2017.
The ongoing and persistent refusal to attend a meeting of the type proposed, after RTHF’s intentions had been clarified, was not only inimical to the relationship governed by the Employment Contract (discussed below) but it amounted to a failure to “observe any lawful and reasonable direction or instruction of [RTHF]”. I deal with the seriousness of the breach below (in the context of evaluating whether the seriousness of the relevant breach of fidelity was sufficient to justify summary termination), but given what I record below as my evaluation of the conduct, I do not believe any attack on the use of the contractual power to terminate on the basis that it was not a reasonable exercise of that power can be maintained. It follows that RTHF was entitled to terminate Dr Avenia’s employment pursuant to clause 14.1(b)(vii).
Lack of Fidelity Contractual Basis
Breach of Duty
I have already referred to clause 3.1(a) (reproduced at [134] above) as the Reasonable Direction Provision. It provides, relevantly, that “[Dr Avenia must] serve [RTHF] faithfully and diligently to the best of [Dr Avenia]’s ability and comply with all reasonable directions”.
RTHF’s case regarding termination for breach of the duty of fidelity proceeded on the basis that it was academic whether the duty of fidelity was express or implied. I think it is necessary to form such a view. Clause 3.1(a) amounts, in terms, to an express contractual statement of the duty of fidelity. Indeed, very similar wording was held to have that effect by Pembroke J in Charltons CJC Pty Ltd v Fitzgerald [2013] NSWSC 350, [35]-[39] and, as a consequence, his Honour determined there was no need to resort to any implied duty of fidelity. In any event, even if I were incorrect, the duty of fidelity would be implied.
Irrespective of whether it was express or implied, the nature and content of the duty of fidelity is not in doubt and was explained in Blyth Chemicals v Bushnell (1933) 49 CLR 66 at 81-82 by Dixon and McTiernan JJ as follows:
Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal. But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises. (references omitted, emphasis added)
For the reasons which I will detail below in the context of examining the common law right to terminate, and additional to the contractual right to terminate under clause 14(b)(vii), I am satisfied that Dr Avenia’s conduct in relation to the failure to comply with RTHF’s reasonable direction amounted to a breach of the duty of fidelity.
There is no need for me to deal with the breach of the duty of fidelity as matter of contract for the failure to comply with reasonable directions; this is because clause 14.1(vii) is directed to a contractual right to terminate in such circumstances.
In now turning to the attempted mail redirection and considering whether this conduct amounted a breach of the contractual duty of fidelity, I am conscious that I have not made a finding that Dr Avenia’s conduct amounted to “stealing the business back” (see [76] above).
As recorded by the Employment Agreement, Dr Avenia was employed by RTHF as a Principal Dentist who was to “…provide [sic] highly advanced range of efficient clinical and dental care as well as development implementation of quality processes and procedures in order to ensure the smooth running of the practices. This role will manage the Dentists in Brisbane and Sydney clinics” (Exhibit A, pages 13 and 52). In the circumstances of his role, Dr Avenia was a senior employee and his duty of fidelity was partly informed by that contextual fact: see Prestige Lifting Services Pty Ltd v Williams [2015] FCA 1063; (2015) 333 ALR 674, [198] per Beach J.
In summary, the evidence establishes the context that Dr Avenia’s attempted mail redirection:
(a)occurred in the period during which Dr Avenia was the subject of RTHF’s direction not to perform work;
(b)was surreptitious in that it was engaged in unilaterally at Dr Avenia’s instigation without consultation with RTHF and without RTHF’s knowledge;
(c)occurred in circumstances where Dr Avenia occupied a significant managerial position as Principal Dentist.
In my view, the evidence establishes that Dr Avenia’s conduct in these circumstances was relevantly incompatible and repugnant to his contractual duty of fidelity. The attempted mail redirection, undertaken in the context outlined above, was conduct which was relevantly destructive of the confidence which RTHF reposed in Dr Avenia.
For the avoidance of doubt, I reject Dr Avenia’s submissions that the failure of the mail redirection should be regarded as being significant. I also reject the submission that the failure by RTHF to prove the content of the terms and conditions determined pursuant to s 32 of the Australian Postal Corporation Act 1989 (Cth) should somehow mean that the argument fails. In all the circumstances, it matters not that the mail redirection ultimately failed; what is relevant is what Dr Avenia did and how he did it covertly. To use a less that perfect analogy, one does not condone an attempted punch because it does not connect.
Consequences of Breach for Alleged Contractual Right to Terminate
It is also relevant to consider whether the breach of the contractual duty of fidelity gave rise to a contractual right to terminate in relation to the mail redirection. I am satisfied that it did, but not for the reason primarily advanced by RTHF. Dr Avenia failed to observe the contractual duty of fidelity in attempting to redirect the mail and this meant that Dr Avenia “materially fail[ed] to perform or observe [a] material clause of [the Employment] Agreement”. The seriousness or materiality of the breach is explained below. It presently suffices to note, for the reasons I explain below, that the conduct was serious or material and, as a consequence, clause 14.1(b)(viii) was engaged and termination was justified pursuant to this subclause (it also follows, for reasons I have explained, that the conduct relied upon does not constitute “other conduct” and clause 14.1(b)(xiii) was not engaged).
This is sufficient to justify, as matter of contract, the termination of Dr Avenia in relation to each of the two aspects of his conduct relied upon. I have also decided that clause 14.1(b)(xiii) was not engaged. For the sake of completeness, however, and in deference to the arguments made by RTHF about the applicability of clause 14.1(b)(xiii), I will deal also with the question of termination at common law.
Clause 14.1(b)(xiii) - Termination at Common Law
The Applicable Law
At common law, of course, the test for determining whether misconduct gives rise to a right to terminate summarily involves: first, a determination of breach (such as I have made here), and secondly, consideration of the seriousness of the breach: Rankin v Marine Power International Pty Ltd [2001] VSC 150; (2001) 107 IR 117, at [250] per Gillard J.
As to the second point, whether a breach is sufficient to meet the legal conditions for summary termination rests primarily on the construction of the contract and an evaluation of whether the breach was sufficiently serious to justify the termination of the contract (failure of performance) or if it evinced a repudiatory intention (renunciation): Koompahtoo Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115 at [44], [55] per Gleeson CJ, Gummow, Heydon and Crennan JJ. In the context of an employment contract, another way of expressing the same concept is to say the conduct must be either: (a) of a character to demonstrate repudiation; and/or (b) repugnant to the employment relationship.
It has, of course, been repeatedly affirmed that the test to be applied is objective, being whether conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it: Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd [1989] HCA 23; (1989) 166 CLR 623, at 647-648 per Brennan J, 657-658 per Deane and Dawson JJ; Fishlock v The Campaign Palace Pty Ltd [2013] NSWSC 531; (2013) 234 IR 1, 25-26 [126] per Sackar J.
Although the test is objective, this does not mean that, in a case of breach of the duty of fidelity, evidence of mental processes is irrelevant. As von Doussa J explained in Sutcliffe v General Motors-Holden’s Automotive Ltd [1998] FCA 88; 80 IR 142 at 154:
The question whether an employee has been guilty of serious and wilful misconduct requires an examination not only of his actions but also of his mental processes relative to them. The misconduct must be conduct so seriously in breach of the contract of employment that by standards of fairness and justice the employer should not be bound to continue the employment. The conduct must also have the quality that it is “wilful”, that is it must amount to a deliberate flouting of the essential contractual conditions: see North v Television Corporation Limited (1976) 11 ALR 599, Gooley v Westpac Banking Corporation [1995] IRCA 658; (1995) 59 IR 262 at 269 and Bartucciotto v Euro Printing Company Pty Ltd, von Doussa J, unreported, IRCA 72/96, 21 February 1996 at 17-18.
Provided these statements are not construed as in any way restricting the later observations of the High Court in Koompahtoo that termination can be justified when the relevant conduct amounts to a sufficiently serious failure of performance or if it evinces a repudiatory intention, these earlier cases remain useful expressions of the quality or nature of conduct necessary to justify termination in the context of an employment contract.
Given the nature of the conduct relied upon in this case, it is important to note that “wilfulness or deliberateness of a disobedience of the lawful and reasonable order giving rise to a justification for summary termination should not be understood as establishing some separate test” but rather involves the consideration of those “elements or factors in order to determine whether the conduct was, objectively, repudiatory in nature” and, therefore capable of giving rise to summary termination: see Dissanayake v State Transit Authority [2016] NSWIRComm 10 at [111].
Two further matters should be noted. First, consistently with the seriousness of the act of termination, where the conduct relied upon is a single act of misconduct, it will only justify dismissal if it was of such a nature as shows that the employee is repudiating the contract, or one of its essential conditions: Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285, 701 per Lord Evershed MR. Secondly, there is little to be gained by canvassing a litany of cases that each turn on their own facts. As the Privy Council explained in Jupiter General Insurance Co Ltd v Shroff [1937] 3 All ER 67 at 74: “the test to be applied must vary with the nature of the business and the position held by the employee, and that decisions in other cases are of little value”.
Did the Breach of the Fidelity Duty Justify Summary Termination at Common Law?
I have found two breaches of the duty of fidelity and it is convenient to deal with them separately and then together.
As to the breach caused by the failure to comply with the reasonable direction, it is useful to make reference to the observations:
(a)of Isaacs ACJ in Adami v Maison De Luxe Limited [1924] HCA 45; (1924) 35 CLR 143 at 151-153:
… One commanding circumstance is to ascertain the subject matter as a totality of which it is predicated that it must be wilful. Here the subject matter is not “disobedience,” but “disobedience of a lawful order.” It is the whole compound expression that must be “wilful,” and not the one word “disobedience” adding a proviso “if the order be lawful.” It is no doubt a correct principle that, once the relation of employer and employee is established, obedience to lawful orders is, if not expressly, then impliedly, contemplated by the contract creating the relation, and mere disobedience of such orders is a breach of the bargain. But whether disobedience in a given case is of such a character as to justify a complete dissolution of the contract by one of the parties and, as here, a forfeiture by the other of valuable accruing rights, together with some degradation - altogether a severe penalty - is, in my opinion, quite a different matter. Such a justification requires the disobedience to be as phrased “wilful disobedience of a lawful order.” That is, it must be not merely a breach but a radical breach of the relation, and inconsistent with its continuance…. “Wilfully” does not necessarily connote in that connection anything criminal or immoral, but it does connote some deliberate design or purpose to derogate from duty.
…Any conduct on the part of either inconsistent with the maintenance of the relation created amounts to a renunciation, and the other has a right to terminate it.
(b)of Lord Evershed MR in Lawsv London Chronicle (Indicator Newspapers) Ltd [1959] 2 AII ER 285 at 700-701:
… It is, no doubt, therefore, generally true that wilful disobedience of an order will justify summary dismissal, since wilful disobedience of a lawful and reasonable order shows a disregard - a complete disregard - of a condition essential to the contract of service, namely, the condition that the servant must obey the proper orders of the master, and that unless he does so the relationship is, so to speak, struck at fundamentally.
In the passages which I have read, it will be remembered there is a statement “...there is no fixed rule of law defining the degree of misconduct which will justify dismissal.” That statement is derived from the judgment of the Privy Council delivered by Lord James of Hereford in the case to which Mr. Stewart referred of Clouston & Co. Ltd. v. Corry. I will read a rather larger passage which provides the context. Lord James said: “Now the sufficiency of the justification depended upon “the extent of misconduct. There is no fixed rule of law defining the degree of misconduct which will justify dismissal. Of course there may be misconduct in a servant which will not justify the determination of the contract of service by one of the parties to it against the will of the other. On the other hand, misconduct inconsistent with the fulfilment of the express or implied conditions of service will justify dismissal.”In the present case, the judge, in the course of his judgment, said: “It is clear and sound law that to justify dismissal for one act of disobedience or misconduct it has to be of a grave and serious nature”; and, later he concluded, in the plaintiff’s favour, that what she had done, or not done, on June 20 was not sufficiently grave to justify dismissal.
With all respect to the judge, I think that his proposition is not justified in the form in which he stated it. I think it is not right to say that one act of disobedience, to justify dismissal, must be of a grave and serious character. I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that you find in the passages I have read that the disobedience must at least have the quality that it is “wilful”: it does (in other words) connote a deliberate flouting of the essential contractual conditions.I consider the conduct of Dr Avenia to be of this character, that is, it is “wilful” and connotes a deliberate flouting of essential contractual conditions as to obedience to directions and fidelity.
It will be recalled the response to the direction was the 2 March Letter (see [85]-[90] above), which contended that no more than two business days’ notice of the proposed meeting had been given and that it was an “unreasonable direction and unlawful to expect our client to be in a position to attend the Meeting in these circumstances”.
In addition to the contention that the meeting had been “purposely arranged with limited notice” (page 3 of the 2 March Letter), Dr Avenia asserted, among other things, that he would not comply with the direction (and that the direction to attend was not reasonable or lawful) because:
(a)enquiries and complaints (that is, those matters raised in the 16 February Letter) had not been addressed;
(b)all requested documentation had not been supplied; and
(c)false, misleading and deceptive (and unexplained) representations had been made by RTHF.
In short, as explained on page 4 of the 2 March Letter, Dr Avenia was only willing to participate in a meeting after RTHF had complied with Dr Avenia’s previous “enquiries and complaints” which had remained “unchanged”.
Essentially, this position was persisted in up until the time of the termination of Dr Avenia’s employment. No doubt this course of conduct was informed by the fact that Dr Avenia had decided, by reason of what he perceived as being RTHF’s wrongful conduct, that he was no longer bound by the Employment Contract.
There was nothing preventing Dr Avenia obeying the direction that he attend a meeting of the type proposed on 2 March 2017 and there was nothing preventing him responding to the allegations raised against him at such a meeting. His obduracy in refusing to attend and demanding RTHF comply with the conditions he set out in the 2 March Letter was not justified, and it had (and continued to have, after 2 March 2017) the effect of frustrating and preventing RTHF from addressing the significant staff problem that RTHF had a duty to address and from minimising the disruption caused by the ongoing suspension – a suspension that RTHF had reasonably directed, for reasons I have also explained.
Whatever the shortcomings in the initial direction contained in the Suspension Letter (which I have found was not reasonable), Dr Avenia disobeying the later, reasonable direction amounted to a wilful breach of a character which showed (in effect) that he was repudiating the contract, or one of its essential conditions, being the duty to obey the reasonable directions of RTHF. It went to the heart of the employment relationship and amounted to a breach of the duty of fidelity. The wilful nature of his conduct, assessed objectively, is no doubt explicable by reason of his view that he was no longer bound.
As to the breach caused by the mail redirection, I satisfied that a reasonable person in RTHF’s position would have perceived, by Dr Avenia’s conduct, the renunciation of a fundamental obligation under the contract. Dr Avenia was suspended pending the finalisation of enquiries into allegations made by certain colleagues and was not in contact with RTHF beyond that purpose. While the attempted mail redirection was constituted only by a single act, it occurred in this context. Accordingly, in the circumstances of a reasonable employer having directed a senior employee not to attend work pending enquiry, I am satisfied that the surreptitious attempted mail redirection conveyed the renunciation by Dr Avenia of his fidelity obligations, and that the unilateral and secretive nature of the conduct constituted a “deliberate flouting of th[is] essential contractual conditio[n]” (Laws at 289).
It follows that the mail redirection, either in combination with, or separately from, the failure to comply with the reasonable direction, gave RTHF the right to dismiss Dr Avenia for serious misconduct. As I noted above at [234], it was not pleaded, other than as grounding a contractual right to terminate pursuant to clause 14.1(b)(xiii), that the common law right to terminate was independently engaged or exercised.
Issue Seven: Would Dr Avenia have been terminated on 10 March under clause 2.1?
I do not think there is any basis in the evidence for reaching the conclusion that Dr Avenia’s employment would have been terminated “effective 10 March 2017” in accordance with clause 2.1 of the Employment Contract but for the Orders of the Court restraining RTHF.
If RTHF had not been enjoined, it seems to me tolerably clear that RTHF would have proceeded to act in accordance with the Show Cause Notice. RTHF had asserted, on 7 March 2017, that it regarded Dr Avenia as having engaged in serious misconduct in refusing to comply with reasonable and lawful directions to attend meetings and in respect of the attempted redirection of mail. Notwithstanding that Ms Tregeagle and Ms Renney had previously wished to resolve issues with Dr Avenia and have him return to the workplace, by 7 March 2017, absent a volte-face from Dr Avenia, the die was cast. It follows that in the counterfactual of no injunction, RTHF would have proceeded to dismiss Dr Avenia in accordance with clause 14.1(b) and not by relying on the Probation Period provided for in clause 2.1.
Issue Eight: Damages
As part of the process of readying this matter for an expedited final hearing, the issue of damages or compensation was deferred until after determination of liability questions. Accordingly, this issue will be deferred and can be determined, if necessary, at a subsequent hearing.
J CONCLUSION AND ORDERS
These reasons are lengthy. The primary reason for their length is that the parties were at issue concerning characterisation of almost all of the events that happened during the term of Dr Avenia’s relationship with RTHF. Additionally, despite the attempts to facilitate an early hearing date by narrowing and defining issues, this was largely unsuccessful and the cases of the parties evolved and developed during the course of the proceeding.
The adverse action case fails for the reason identified in [113] above and the pleaded breach of contract case has only had success in a way unrelated to the termination of the employment of Dr Avenia.
The price paid for the interlocutory relief obtained by Dr Avenia was the provision, through his Counsel, of the usual undertaking as to damages. Absent resolution of the underlying controversy, it will be necessary, following the publication of these reasons, to proceed to a quantification of the damages, if any, which were suffered by RTHF as a consequence of the granting of the injunction. As to the breach of contract by RTHF as to payment pursuant to the APA, this ought to be the subject of declaratory relief and, subject to hearing from the parties, may be the subject of the entry of judgment.
It has often been observed that the protection against adverse costs contained in s 570 of the FWA has the benefit of promoting access to justice by trying to reduce the prospect that fear of a costs order will discourage a genuine litigant from pursuing a case with reasonable cause. Speaking generally, however, in some cases, it can have the unintended effect of encouraging the perpetuation of litigation that would be settled in circumstances where a party was at risk of adverse costs in the usual way.
Returning to the present circumstances, the unnecessary prolongation of this litigation is not in the interests of either remaining party and although I propose to list the matter for a further case management hearing to make orders consistent with these reasons and to make any further necessary directions, I trust that, consistent with the overarching purpose, the parties and their lawyers will give further consideration as to whether it is not too late to bring this unhappy litigation to an end consensually.
As presently advised, subject to hearing from the parties, I would propose to make an order under s 53A of the Federal Court of Australia Act 1976 (Cth) referring the balance of this proceeding to a further mediation.
I am conscious that I reserved the costs of the proceedings that were abandoned against Ms Tregeagle. If any application was to be made in relation to the issue reserved, or as to the costs of the hearing generally, I would usually order that any material in support of that application be filed prior to the case management hearing. I am, however, conscious that the parties may wish to rely upon otherwise privileged communications in support of any such application or applications: see McDonald v Parnell Laboratories (Aust) (No 2) [2007] FCA 2086; (2007) 164 FCR 591 at 598-9 per Buchanan J; Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20; (2015) 229 FCR 221 at [166]-[168] per Tracey, Gilmore, Jagot and Beach JJ. Of course, I have no idea whether this will be the case, but I mention it because given the deferral of the question of damages it seems to me, at present, that it would be inappropriate that I receive any material on any costs application under the exclusion contained in s 131(2)(h) of the Evidence Act. Accordingly, my present view, subject to hearing from the parties, is to reserve the question of costs generally until the conclusion of all issues in the proceeding.
I certify that the preceding two hundred and eighty-three (283) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. Associate:
Dated: 4 August 2017
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