Bredel v Moore Business Systems Australia Ltd

[2004] HCATrans 186

[2004] HCATrans 186

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S290 of 2003

B e t w e e n -

PATRICK JOHN BREDEL

Applicant

and

MOORE BUSINESS SYSTEMS AUSTRALIA LIMITED

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 28 MAY 2004, AT 12.01 PM

Copyright in the High Court of Australia

MR P.J. BREDEL appeared in person.

MR M.F. HOLMES, QC:   May it please the Court, I appear for the respondent with MR R.F. CROW.  (instructed by Mallesons Stephen Jaques)

GLEESON CJ:   Yes, Mr Bredel.

MR BREDEL:   Your Honour, I took the opportunity early through the week to submit my oral submissions in writing.  Whether or not your Honours prefer me to speak them here now or whether you have had the opportunity to read them.

GLEESON CJ:   We have read them and you are at liberty to add anything you want to add to them.  You have up to 20 minutes.  It is not compulsory but it is open to you.

MR BREDEL:   Your Honours, I would like to address you on the two matters which would allow you to grant a special leave to appeal, and that is the public interest.  I say that Australia has moved away from a system of centralised terms and conditions of employment arrived at through collective bargaining.  To one of the individual contracts in which the rights and obligation of each party are supposedly protected by the terms of the contract, I ask you, sir, then how can it be that in a case where the Court of Appeal has held that the employee was treated unfairly and harshly and the employer acted with deceit and deception in backdating the applicant’s remuneration review with the sole purpose of disentitling the applicant from his rightful earnings?

No remedy could be thus found under contract or estoppel.  I ask the question also, your Honours, whether or not the lower courts had the power to mould equity under either 53B of the Trade Practices or section 106 of the Industrial, even though it was not pleaded.  The court at both first instance and on appeal held that the employer had the power to vary remuneration plans unilaterally to the detriment of the employee and total benefit to the employer and then to apply those revised terms retrospectively.  This has great public importance for employees who may have laboured under a misapprehension that while their remuneration could be varied, the benefits it provided would not be reduced without consultation or their consent and in any case, such change to apply retrospectively.

Secondly, the case is also of public importance in determining what obligations an employer has to act in accordance with the notion that it will not undermine the trust and confidence between the parties.  The employment relationship is one that requires the parties to work co‑operatively, yet it would appear that there is no legal way to remedy this when one party acts deceitfully.  The employee’s duties of good faith and fidelity were recognised by Justice Santow in the Court of Appeal at paragraph 73 but there was no corresponding analysis of the employer’s implied obligations to the employee at that time.

Thirdly, the matter is of public importance in assessing the role of estoppel in the employment context and in examining the various types of estoppel both at common law and equity that could apply in this matter.  If a clear and unambiguous statement is indeed essential for a finding of both common law estoppel by representation and equitable estoppel, then estoppel does not appear to depart in any meaningful way from contract law.  This begs the question of what work then there is for the concept of estoppel to do.

Fourthly, there is an important issue to be addressed regarding the assessment of what constitutes detriment.  The courts ignored that the performance of work itself was a detriment and instead simply looked only at the financial position of the employee being 2000 approximately per annum in excess of my pension without any assessment of whether or not I would have been better off had I retired.  Consideration needs to be given as to what value then we put on the performance of work.

Finally, it should be remembered that not every employee will run to seek legal advice when presented with an email or office memo from their employer, and, indeed, many employment relationships are characterised by what the law might consider to be loose and unsatisfactory arrangements in the workplace.  Many agreements are made without a formal legally binding document.  This is the nature of small business.  From a policy point of view it is not desirable nor practically possible to expect employees to have to ventilate every concern about their employment through the court system.  A clear statement of the standards of conduct required by employers when varying terms of employment contracts such as those governing remuneration is necessary.

Secondly, your Honours, may I address you on the public importance of the interests of the administration of justice.  The questions that arise concerning the administration of justice are set out in full in the applicant’s submission of argument.  It can be summarised as follows.

(a)  There was a failure to consider the cumulative effect of the representations made to the applicant and instead each representation was considered only in isolation.

(b)  The failure of the respondent to produce documentary evidence, that is the daily remuneration spreadsheets which the employee alleged showed the commission structure rolled over on to 1999.  This had a significant impact on the course of the hearing at the first instance.  I ask the question:  how could it possibly be that a large company did not know what their daily remuneration spreadsheet to pay their employees was?  To answer “We don’t know what it was; in short, we don’t produce it” is disingenuous in the extreme. 

(c)  The revision of evidence given by a witness, Mr Mackenzie, that supports the employee’s contentions the commission plan rolled over.  Sir, you will either accept that or you will not accept it at your discretion obviously.

(d)  The failure by both lower courts to consider the true effect of the commission plan that was substituted, plan B2, even though Justice Santow at application book page 124, line 6 stated:

Basic fairness at least required the employer to offer the Appellant Plan B2, as it had decided to do until the Boral contract was awarded.

The last in that submission there, No (e), the omission or alteration of significant matters of evidence when comparing the original version of the evidence at the trial and that as it appears in the judgment of Justice Bergin.  For example, the letter of 28 June 1999, the conversation between the employee, Bredel, and Siva in September 1999 which was never disputed, and the conversation between the employee and Mackenzie regarding the census sale commission.

(f)  The withdrawal of the employee’s counsel during the hearing due to ill health, confusion and disorientation and the withdrawal of the quantum meruit claim without the employee’s knowledge, consultation or consent.  Both of these things had a detrimental effect on the running of the applicant’s case.  Lastly, the Court of Appeal’s refusal to allow additional grounds of argument to be put on appeal.

The need for this matter to proceed on a basis that all possible remedies available to the employee could be considered and the court’s consideration of the duties of good faith owed by the employee but with no corresponding examination of the obligations owed by the employer.  Deceit only succeeds when the recipient of that deceit does nothing.  It now seems common for the corporate figures to argue that business is somehow removed from the standards that the rest of us have to live by.

Somehow in this instance the worst of the law has prevailed over the best of the law.  Deceitful, contemptible behaviour has prevailed over loyalty, commitment and skilful work.  In a perfect world we are rewarded for the merit of work, not penalised as in this instance.  This case is an adversion of the legal relationship between the two parties with one deceitful aim, and that is the avoidance of payment by using strict and complete legalism.

In the world beyond the illegal…..fairness is not tethered to strict legalism, nor do agreements come in gift-wrapped, glossy, perfectly worded documents.  If I should fail here today, then unconscionable, deceitful, contemptible company behaviour will be preserved in amber as a methodology to profit by deception.  Rogue organisations will be able to reference Bredel v Moore Business Systems and by retrospective proclamations succeed in unjust and oppressive conduct.

The potential for dishonourable companies to act in this deceitful and dishonest manner will be given oxygen and allowed to profit by using the method blueprinted in this matter.  This opportunity is manifest and made possible by the tacit endorsement of the respondent’s suspect dealings by the two courts below.  The decisions below suffer from the use of misinformation which seems to do nicely for this matter.  A miscarriage of justice has occurred which should attract the attention of this Court by granting the application for special leave to appeal.

It is not enough to merely denounce the respondent’s behaviour, as the Court of Appeal did.  This Court should face squarely the miscarriage of justice such behaviour has brought about and by granting the special application for leave to appeal, give the opportunity to right the wrong.  If I should fail here today, then the workplace will be returned to might is right, where the rules of employment are written by the powerful and all pretence at equality and non‑discrimination will be abandoned.

This Court is regarded by the Australian public as the alpha and omega of justice.  The Court should be a bulwark against behaviour of this kind.  A basic principle of our legal and social system is that we do not discriminate.  If, however, the processes of law can be converted easily into the technique of unfair and harsh treatment, then this bulwark of the Court is reached.  Perhaps the most important role of the law is to play its part in the protection of the individual against arbitrary exercise of power.  So far on this occasion it has failed the test.

These matters, combined with the elements of public importance, make this an appropriate matter where special leave should be granted, so I respectfully submit that the application for special leave succeed, your Honours.

GLEESON CJ:   We do not need to hear you, Mr Holmes.

The applicant failed, both at first instance and in the Court of Appeal, to persuade the Court to a view of the facts relating to his contract of employment which was such as to sustain the claims for relief he was making.  The case was decided against the applicant, both at first instance and on appeal, essentially on the facts.  The matter raises no question of general principle suitable to a grant of special leave to appeal and we are not persuaded that the interests of justice require such a grant.  The application is dismissed with costs.

AT 12.14 PM THE MATTER WAS CONCLUDED