Chin v The Minister for Education of Western Australia - [2000] WASC 304

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CHIN -v- THE MINISTER FOR EDUCATION OF WESTERN AUSTRALIA [2000] WASC 304

CORAM: MASTER BREDMEYER

HEARD: 6 OCTOBER 2000

DELIVERED : 15 DECEMBER 2000

FILE NO/S: CIV 1032 of 2000

BETWEEN: NICHOLAS NI KOK CHIN
Plaintiff
AND
THE MINISTER FOR EDUCATION OF WESTERN AUSTRALIA
Defendant

Catchwords:

Pleading - Statement of claim - Application to strike out - No reasonable cause of action - Embarrassing pleas

Legislation:

Commonwealth Constitution, s 51(xxxi)

Criminal Code of Western Australia, s 83
Education Act 1928 (WA), s 5, s 7(5)

Rules of the Supreme Court, O 18 r 12

Result:

Application allowed

Representation:

Counsel:

Plaintiff: In person
Defendant: Mr J A Thompson

Solicitors:

Plaintiff: In person
Defendant: State Crown Solicitor

Case(s) referred to in judgment(s):

Buckley v Tutty (1971) 125 CLR 353
Farrington v Thomson [1959] VR 286
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41
Nagle v Feilden [1966] 1 All ER 689
Wilkinson v Osborne (1915) 21 CLR 89

Case(s) also cited:

Allcard v Skinner [1887] 36 Ch D 145
Apel v Ready [1971] 1 NSWLR 288
Attorney General of Hong Kong v Humphreys Estate Ltd [1987] 1 AC 114
Attorney-General (Duchy of Lancaster) v London & North Western Railway Co (1892) 3 Ch 274
Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493
Bailey v United Church in Australia Property Trust (Qld) [1984] 1 Qd R 42
Bedford v Ellis [1901] AC 7
Boyce v Paddington Burough Council [1903] 1 Ch 109
Byrd v Nunn [1877] 7 Ch D 284
Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398
Cashin v Cradock [1876] 3 Ch D 376
Christie v Christie (1873) LR 5 Ch App 499
Commonwealth v Verwayen (1990) 170 CLR 394
Dawkins v Prince Edward of Saxe Weimar [1876] 1 QBD 499
Discount & Finance Ltd v Gehrigs NSW Wines Ltd (1940) 598
Dyson v Attorney-General [1911] 1 KB 410
Foran v Wight (1989) 168 CLR 385
Girando v Padbury (1920) 22 WALR
Gordon v Godon [1948] VLR 57
Habbuck & Sons Ltd v Wilkinson, Heywood and Clark Ltd [1899] 1 QB 86
Hepples v Commissioner for Taxation (1990) 22 FCR 1
Hill v Van Erp (1997) 188 CLR 159
Hughes v Western Australian Cricket Association (Inc) & Ors (1986) 19 FCR 12
Knowles v Robert [1888] 38 Ch D 263
Mayor, City of London v Horner (1914) 111 LT 512
Millington v Loring [1880] 6 QBD 190
Nagle v Feilden & Ors [1966] 1 All ER 689
Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014
Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997
Perpetual Trustee Co Ltd v Pacific Coal Pty Ltd (1953) 55 SR (NSW) 495
Perre v Appand (1999) 198 CLR 180
Prudential Assurance Co Ltd v Newman Industries Ltd [1981] Ch 229
R v Boston (1923) 33 CLR 386
R v White (1875) 13 SR (NSW) 322
Rajski v Powell (1987) 11 NSWLR 522
Rassam v Budge [1893] 1 QB 571
Renowden v Hurley [1951] VLR 13
Republic of Peru v Peruvian Guano Co [1887] 36 Ch D 489
Ronex Property Ltd v John Laing Construction Ltd [1983] 1 QB 398
Stiftung v Rayner and Keelr Ltd (No 3) [1970] 1 Ch 506
Tampion v Anderson [1973] VR 321
Thorsten Nordenfelt v Maxim Nordenfelt Gunsand Ammunition Co Ltd [1894] AC 535
Tomkinson v South-Eastern Railway Co (No 2) (1887) 57 LT 358
Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 452
Wallersteiner v Moir (No 2) [1975] QB 373
Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Williams v Milotin (1957) 97 CLR 465
Willoughby v Eckstein [1936] 1 All ER 650

MASTER BREDMEYER: This is an application by the defendant dated 18 February 2000 to strike out the plaintiff's amended statement of claim dated 2 February 2000. On 19 May 2000 I ordered that the amended statement of claim be struck out and I gave leave to the plaintiff to file and serve a minute of substituted statement of claim. I gave oral reasons for my ruling at the time which were recorded in transcript form. The plaintiff has repleaded. He has amended the writ so that the defendant is The Minister for Education of Western Australia, instead of The Chief Executive Officer of the Education Department of Western Australia. He has produced a minute of substituted statement of claim of 28 July 2000. The minute runs to 24 pages. I will refer to it as "the pleading".
At the end of oral argument the plaintiff was given leave to file written submissions in reply and these were filed on 1 December 2000.
The application to strike out is on the grounds that the pleading discloses no reasonable cause of action or is scandalous, or may prejudice, embarrass or delay the fair trial of the action or is an abuse of process of the court. In these reasons I will be concentrating mainly on the first of these grounds - that the pleading does not disclose a reasonable cause of action. The test to be applied when deciding that a pleading does not disclose a reasonable cause of action has been variously expressed, for example, "so obviously untenable that it cannot possibly succeed", "manifestly groundless" or "so manifestly faulty that it does not admit of argument": General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129. At the same time, and I bear this in mind, the court should be careful not to risk stifling the development of the law by summarily rejecting a claim where there is a reasonable possibility that, as the law develops, it will be found that a cause of action will lie. When I use the words "not arguable", that should be taken as shorthand for any one of the three phrases taken from General Steel Industries Inc (supra).
The plaintiff in par 3 and par 4 pleads:
"3)The plaintiff is suing in a representative capacity for the class of persons who are migrant teachers from Asian countries whose professional qualifications which include a university training obtained in their country of origin and which are recognized by the defendant but who have never been appointed to permanent positions, during the past fifteen years, as secondary school teachers by the Education Department of Western Australia.
4)The plaintiff repeats para 3 and further states that he is fighting in the public interest of up‑righting the social and economic injustice of migrant teachers, a class of people, who on becoming either permanent residents or citizens of Australia had been wrongfully deprived of permanent employment with the Education Department of Western Australia as secondary school teachers resulting in the consequential loss to the school‑children of Western Australia those teaching man‑powers of migrant teachers which are unique to a multi‑cultural Australia."
The plaintiff seeks a representative order under Rules of the Supreme Court O 18 r 12 for that class of persons who are migrant teachers from Asian countries whose professional qualifications include a university training in their country of origin but who have never been appointed to permanent positions, during the last 15 years, as secondary school teachers in the Education Department of Western Australia. I am not willing to make that order. What consultation, if any, has the plaintiff had with these persons? Some consultation is desirable. Do at least some of them authorise him to bring this action? Once a representative order is made they will be bound by the result. They may not wish to be bound. Some of them may wish to bring their own actions. I will strike out this part of the pleading. Moreover, procedurally, any such application needs to be made by chamber summons with an affidavit in support.
Paragraph 5 is legal argument and will also be struck out.
Paragraph 6 of the pleading pleads:
"6)The defendant is the Minister for Education for Western Australia and is sued either in his corporate capacity as the plaintiff's employer and/or alternatively in the defendant's personal capacity as a Member of the Legislative Assembly for Western Australia and as such is the trustee for the public trust of which the plaintiff is a representative member of that class of beneficiaries as aforementioned in para 3, 4 & 5 above. ... "
The Minister for Education of Western Australia is a body corporate capable of suing and being sued: Education Act 1928 (WA) s 5. The Minister for Education is, by s 7(2) of that Act, the statutory employer of teachers within the Education Department. The plaintiff's grievances, as expressed in this pleading, are all against officials of the Education Department. The correct defendant is thus The Minister for Education in his corporate capacity. No allegations are made against him in his personal capacity as a member of the Legislative Assembly. That part of the pleading which refers to his personal capacity as a Member of the Legislative Assembly will be struck out. I do not consider it arguable that the Minister for Education is a trustee for the public trust or that Mr Chin is a beneficiary of that trust. I will give reasons for that view later.
There are at least four causes of action pleaded. The first is estoppel in par 7 ‑ to par 10. By way of background, the plaintiff, a migrant teacher with 22 years of secondary school teaching experience with the Ministry of Education of West Malaysia, migrated to Western Australia together with his family on 28 May 1988 as permanent residents. (The plaintiff became a citizen in December 1990.) The plaintiff served as a casual and temporary teacher with the Education Department of WA from 8 August 1988 until 18 October 1999. He was never made permanent. I quote par 7 and par 8 of the pleading:
"7)The plaintiff returned to West Malaysia alone, on 2.6.1988 soon after migrating with his family of a wife and three sons, to continue his career and service as a teacher but he was called by the staffing consultant of the Education Department Mr Gary Fischer through his sister‑in‑law Ms Lim Yoke Lin to return to Western Australia and the plaintiff did return to Australia on 23.7.1988 to serve as a temporary teacher with the Education Department of Western Australia on 8.8.1988 at Willeton Senior High School.
8)The message conveyed by Ms Lim Yoke Lin to the plaintiff was to the effect that the plaintiff's qualifications and experience as a school teacher had been fully recognized by the defendant and that he would be given an appointment as a secondary school teacher should he return to Western Australia in the immediate future. The plaintiff further states that the defendant through its agents, over the past twelve years and for some unwritten policy reasons that migrant adults qualified overseas be intentionally precluded or be refused entry into its 'stud‑books' of permanently employed teachers, that is to say the defendant intentionally refused to provide an opportunity for the plaintiff to be honestly assessed as a temporary teacher so as to become a permanent teacher but merely intended and did made [sic] use of the plaintiff as a temporary expedient by employing the plaintiff casually as a relief teacher. The plaintiff further claims that except for certain teaching areas where there is a dire need or shortage of qualified teachers, for example in the teaching area of Mathematics and perhaps Computer Science, the defendant had and did put into practice a policy of positive discrimination for teachers trained in Western Australia, irrespective of qualifications and experience to the detriment of the plaintiff, a qualified and trained teacher in West Malaysia."
These two paragraphs contain the representation meant to found the plea of estoppel. It is most important that the purport of the conversation between Mr Fischer and Ms Lim be pleaded accurately. It is no good pleading what Ms Lim said to the plaintiff. She may have altered the message in passing it on. The defendant cannot be held liable for any such alteration to the message made by Ms Lim. The pleading is defective. The purport and substance of the conversation to Ms Lim must be pleaded. Also, the representation needs to get to the plaintiff, so there needs to be a plea that Ms Lim was the agent for the plaintiff, if that was indeed the case.
In this kind of estoppel there needs to be a representation which was not fulfilled and a plea that the plaintiff acted on it to his detriment. In this case it is all important to know the precise content of the representation. If the representation merely was that the plaintiff would be offered a job as a teacher (without any further specification) in a high school with the Education Department, then that representation was fulfilled. He taught in the Department for 11 years. If the representation was that he would be given a temporary position and that, provided his performance was satisfactory, he could expect to get a permanent position, then this needs to be pleaded. It may not have been fulfilled if his performance was satisfactory. If the representation was that he would be offered a permanent position, then that needs to be pleaded. That representation may have been breached. In legal argument he said that Garry Fischer, through his sister‑in‑law Ms Lim, offered him a temporary position. Mr Chin said in argument, "If there is a temporary position it normally leads to a permanent position because every teacher starts as a temporary teacher". I would like to see the precise pleading of the substance of the representation before ruling on that.
The detriment part of this cause of action is pleaded satisfactorily in par 9(c), namely that the plaintiff gave up his pensionable and permanent employment status with the Ministry of Education of West Malaysia. Mr Chin told me that he was 42 years of age when he arrived in Australia and, if he had continued to work in West Malaysia, he would have obtained a pension at 55 years. It appears from his argument that he migrated to Australia in May 1988 and planned to return and work in Malaysia for a further 13 years in order to qualify for the Malaysian pension, had he not been offered a teaching position here. It is pleaded in par 9(d) that the defendant knew from the papers submitted by the plaintiff, that he would have to resign from his permanent position in Malaysia to take up a teaching position in Western Australia. That part of the cause of action is pleaded properly.
I consider this plea does not disclose a reasonable cause of action in its present form.
The plaintiff's second cause of action is an administrative law one and is pleaded in par 10 to par 15. The plaintiff worked as a temporary and relief teacher with the Department of Education from August 1988 until October 1999. On 6 September 1999 the Department placed a ban on him. The Department circulated a fax to State, primary and high schools preventing him from being employed as a casual or relief teacher. That ban came into effect on 18 October 1999. The plaintiff has not worked as a teacher since. He told me that he is a law student at Murdoch University currently studying two units. He also helps out his wife in a family business. He also told me that he is not interested in taking up employment as a teacher in the private sector. He said he never taught in the private sector in Malaysia and he does not want to teach in the private sector in Western Australia. No reason was given for the ban. What are his grounds for challenging the ban? In par 13 he asserts that he has a "right to work" as a teacher with the defendant and cannot be arbitrarily and unreasonably excluded from the profession unless he has been convicted of a criminal offence or was incapable on medical grounds. I discuss this "right to work" ground later in connection with par 16.
In par 14 the plaintiff pleads that he was deprived of his employment as a casual teacher with the Department and consequently deprived of his livelihood due to the administrative inefficiency of the defendant and his agents and he then pleads 13 instances of that, numbered (a) to (m). I quote from the first three of these. The Minister and and/or his agents:
"a)failed to verify the truth of the allegations made against the plaintiff in allowing the plaintiff's assessors to act at the behest of previous staffing personnel who are now displaced, to exercise their influence against a favourable outcome for the plaintiff so as to jeopardize Dr Michael Wood's recommendations particularized in para 17(d) below. [Dr Wood was a consultant called in by the Department in 1997 to investigate according to Mr Chin:
(i)the falsification of the plaintiff's record of assessment at Willeton Senior High School in 1988 - which Mr Chin only discovered through the Freedom of Information Act; and
(ii)the general resentment against the plaintiff's satisfactory rating at Maddington Senior High School in 1992.]
b)unreasonably refused to receive fresh evidence offered by the plaintiff by wilful acts, or neglect i.e. refused to consider the evidence from eight State schools where the plaintiff had been working after the 1999 assessment. In consequence, such fresh evidence had been allowed by the defendant or its agent/s to be tampered with to the detriment of the plaintiff;
c)acted upon incorrect facts where relevant materials are in the personal file and records of the plaintiff kept by and made available to the defendant."
In par 14(d) the plaintiff pleads that the defendant imposed the ban of October 1999 without giving reasons and without giving the plaintiff an opportunity to be heard. In par 14(e) it is pleaded that the defendant, in so doing, allowed extraneous or irrelevant matters to guide him and that the ban on teaching imposed an impossible and unreasonable condition that the plaintiff fulfil the penalty of a mandatory requirement of one year of continuous service either in the private sector or in another State or Territory in Australia. In par 14(f) it is pleaded that the defendant mistook the fact that the plaintiff is an efficient, reliable and trustworthy teacher. In par 14(g) it is pleaded that the defendant failed to take into account material considerations such as the plaintiff's honesty and reliability and efficiency as a teacher at all material times and that the plaintiff's reputation has suffered as a result of injurious falsehoods and false complaints against him motivated either by malice or an unwritten policy of the defendant not to employ migrant teachers whenever and wherever possible. It is said in par 14(h) that the defendant did not give enough weight to the plaintiff's past performance and employment history and made injudicious use of elusive and dishonest devices for the fair assessment of teachers.
It is said in par 14(k) that the defendant refused the plaintiff procedural fairness in the 1999 assessment as represented by a letter from the defendant's Mr John Ryan to the plaintiff dated 11 June 1999. It is said in par 14(l) that the defendant either wilfully, or through wilful neglect, provided work situations through its agents at Lynwood Senior High School in term one of 1999 in which it was made impossible for the plaintiff to carry out his work or duties as a teacher. Some students refused to carry out instructions by the plaintiff and that refusal stemmed from influence exerted by one or more adults over these students. It was not the natural behaviour of the students for which the plaintiff is well equipped to modify and discipline on an everyday basis. Finally, in par 14(m), it is said that Mr Dennis Adams oppressively influenced the plaintiff under duress to sign an admission that the 1999 assessment merited an unsatisfactory rating knowing that the plaintiff could not have refused him. The plaintiff had made known his intentions to come back again as a casual teacher after the assessment to Lynwood Senior High School where the plaintiff had successfully taught in the past. Not willing to miss the opportunity of casual teaching in the school in which the plaintiff preferred to work, the plaintiff did not wish to offend the Principal with any form of behaviour which might appear recalcitrant to a would‑be employer. Under these circumstances, the plaintiff says that he was oppressively influenced to sign the admission of the unfair assessment presented to him at the end of term one in 1999.

I consider that the administrative law plea in par 12 and par 14 is arguable but the plea needs refinement. The plaintiff is challenging the ban imposed on him teaching in State schools. That is a prayer for relief par 19(11). He can do so if the decision was made in bad faith, or by fraud or for an improper purpose, or if the Minister took into account irrelevant considerations, or failed to take into account relevant considerations, or for breach of natural justice: see Halsbury's Laws of England Vol 1, 4th ed, "Administrative Law" pars 60, 61 and 64. Some of the pleas in par 14 go to those grounds, for example, the defendant refused to receive fresh evidence (14(b)); acted upon incorrect facts (14(c)); failed to take into account material considerations (14(g)). Other averments do not. For example, in the opening sentence of par 14, it is not arguable to say that the ban was due to the defendant's "administrative inefficiency". In par 14(h) it is said that the defendant made "injudicious use of elusive and dishonest devices for the fair assessment of teachers". That is vague and hence embarrassing. Paragraphs 14(i) and (j) are likewise vague and embarrassing.
Paragraph 14(k) states the defendant refused the plaintiff procedural fairness in the 1999 assessment as represented by the letter of the agent of the defendant Mr John Ryan in reply to the plaintiff which letter is dated 11 June 1999. This is embarrassing. The material facts need to be pleaded in a concise form. It is not sufficient to refer to two letters.
Paragraph 14(l) also suffers from vagueness:
" ... Some students' refusal to carry out instructions by the plaintiff was attitudinal in character stemming from influence exerted by one or more adults ... ."
Where are the material facts there? Who were the adults? How is it alleged that the Minister caused this conduct?
Paragraph 14(m) refers to duress and oppressive influence by Mr Dennis Adams who got the plaintiff to sign his 1999 assessment which "merited an unsatisfactory rating". What was the substance of the duress or undue influence? What did Mr Adams do or say to get the plaintiff to sign? That needs to be pleaded.
Paragraph 14 needs to be repleaded to give effect to these reasons. It will be struck out.
Paragraph 15 raises a new matter, and I quote:
"15)The plaintiff repeats para 14(e) and further claims that being a free citizen, when exercising his freedom he is entitled to choose the employer whom he promises to serve such that his right to his services cannot be transferred from one employer to another without his assent. As such, the defendant is precluded from requiring the plaintiff to work as a teacher in another State or Territory or in the private sector for one year before returning to work in the defendant's school. The defendant did require of the plaintiff to produce evidence that the plaintiff had taught at a satisfactory level continuously in another State or a private school for at least twelve months in his letter dated 16th March, 2000 to the Honourable Member for Willagee, Mr Alan Carpenter MLA. This defendant's requirement is unreasonable and does amount to a penalty as the plaintiff had already taught for eleven years at a satisfactory level in Western Australia and 22 years in Malaysia."
I do not consider that is arguable. The defendant has not transferred the plaintiff's services from the Department of Education to another employer. The defendant is inviting the plaintiff to work elsewhere for 12 months if he wants to be re‑employed in the Department. I take it that was not part of the original ban imposed in October 1999. It was a concession from the Department made in March 2000 following representations by the plaintiff to Mr Alan Carpenter MLA.
The third cause of action raised in the pleading is that the defendant has breached the plaintiff's "right to work" which is akin to the "acquisition of just property" conferred by s 51(xxxi) of the Commonwealth Constitution. This plea is found in par 16 of the pleading. For the legal right to work the plaintiff relies on Nagle v Feilden [1966] 1 All ER 689 and Buckley v Tutty (1971) 125 CLR 353, and on s 51(xxxi) of the Constitution, which reads:
"51.The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:-
...
(xxxi)The acquisition of property on just terms from any state or person for any purpose in respect of which the Parliament has power to make laws."
Nagle (supra) was a Court of Appeal decision chaired by Lord Denning MR. The stewards of the Jockey Club had a monopoly of control over horse racing on the flat in Great Britain. In accordance with an unwritten practice of refusing to licence women as trainers, they refused a training licence to Mrs Nagle who was a trainer, although they had granted such licences to her head lad. She sued the stewards for a declaration that this practice was against public policy and for an injunction. It was held that there was an arguable case by the common law of England that there was a right to work at one's trade or profession without being arbitrarily and unreasonably excluded by anyone having the governance of it, and, that to exclude a woman from being a trainer of race horses on the ground of her sex, would be capricious and unreasonable. Therefore the alleged practice of the stewards was contrary to public policy and the statement of claim had been wrongly struck out. That case can be distinguished from the pleaded facts in this case. The Minister for Education does not enjoy a monopoly over all teaching positions in this State. He employs teachers in the Education Department only. Mr Chin's right to work - if there is such a right - is not totally infringed. He can get a job in the private sector.
Buckley (supra) was a restraint of trade case. Buckley was a professional rugby player in New South Wales. Under the rules of rugby league he could not play for another club unless he got a clearance from his old club. He could not get a clearance unless a new club paid the transfer fee fixed by the old club. These rules were binding on the player and the clubs and akin to terms of a contract. It was held by the High Court that that was an unreasonable restraint of trade. The facts of that case can be distinguished from the pleaded facts of this case. The plaintiff is not being prevented from working in another field, namely in the private sector. He is simply unwilling to do so.
I consider s 51(xxxi) of the CommonwealthConstitution has nothing to do with this case. That is both a power and a restriction given to the Commonwealth Government. The Commonwealth Government has power to acquire property from any State or person in the country for any purpose in respect of which the Commonwealth Parliament has power to make laws, but it can only do so on just terms. The Commonwealth is not involved in this case. The Commonwealth did not issue the ban of which Mr Chin complains. Moreover, I do not consider that the plaintiff's "right to work" is property within the meaning of the section. I consider this plea is not arguable.
The fourth cause of action is that the defendant owes the plaintiff fiduciary duties and has breached those duties. I quote from the opening words of par 17:
"17)The plaintiff further asserts that the defendant owes the plaintiff a fiduciary duty to protect him from his 'peculiar vulnerability' to all kinds of injurious falsehoods such as he had been wont to receive whenever a position arises for him to be assessed as a teacher. The defendant breached the fiduciary obligations on the following occasions towards the plaintiff, ... ".
There follows eight examples of breach. For example, in par (a), he pleads in summary that his assessment as a teacher at Willeton Senior High School in 1988 was falsified without the knowledge of the plaintiff, and that he only discovered the false assessment in 1990 through the Freedom of Information legislation. In par (b) he pleads:
"The general resentment against the plaintiff's satisfactory rating at Maddington Senior High School in 1992 as recorded in the documents made by the plaintiff's successful appeal against the satisfactory performance rating given by that school;"
In par (c) he pleads the tardiness of the defendant to implement its own mediator's decision on the dispute alluded to in 17(b) above, the mediator being Ms Proctor who was the District Education Superintendent for South Perth.
A number of his instances relate to allegations of indecent dealing of a 10‑year‑old girl in November 1994 at South Ballajura Primary School. His pleading in par 17(e) is that the child "could not have made up such injurious falsehoods" which evidently led to prosecution and therefore she must have been "goaded or imposed upon by matured minds". He told me that a 10‑year‑old child could not lie, and that he was imprisoned for one day over this incident.
He pleads in par 17(c) that this matter was settled in favour of the plaintiff in 1996 by Wisbey J of the District Court. A private consultant, Dr Michael Wood, was commissioned by the defendant to "probe into the injustice suffered" by the plaintiff after 1994 and he made recommendations in a report of 28 May 1997. The plaintiff pleads that the defendant failed to implement honestly this report.
In par (f) he refers to a breach of fiduciary obligations by the defendant in:
"f)the injurious falsehood of 'homosexual dealing' at Armadale Senior High School in 1998 at a time when resentment was high against the plaintiff - when the defendant's agent Mr John Ryan was honestly trying to locate a position for the plaintiff at a suitable school in order to comply with the State Ombudsman's long‑standing request. ... "
In par (g) he refers to:
"g)the scandalous, vexatious, frivolous and oppressive complaints which the Principal of Lynwood High School Mr Dennis Adams received during term one of 1999 while the plaintiff was being assessed in accordance with Dr Wood's recommendations."
I take it that this plea is that the Education Department stirred up students to make these complaints to the Principal of Lynwood High School. The material facts on which that plea is made are not given.
I need not look at these allegations of breaches of fiduciary obligations. The fundamental question is - does the Minister owe fiduciary duties to the plaintiff? The High Court in Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 96 ‑ 97 lists the six most common fiduciary relationships. The list is not exhaustive but these are the most common ones, namely, trustee and beneficiary, agent and principal, solicitor and client, employee and employer, director and company, and partners. The passage goes on to state:
"The critical feature of these relationships is that the fiduciary undertakes or agrees to act for and on behalf of the interests of another person in the exercise of a power or discretion which will effect the interests of that other person in a legal or practical sense. The relationship between the parties is therefore one which gives the fiduciary a special opportunity to exercise the power or discretion to the detriment of that other person who is accordingly vulnerable to abuse by the fiduciary of his position."
In each case it is the first‑named person who is the fiduciary. The trustee is the fiduciary towards the beneficiary, not vice versa. The agent is the fiduciary towards his principal, not vice versa. The solicitor is the fiduciary towards his client. And relevantly to this case, the employee (Mr Chin) is the fiduciary towards his employer. He owes fiduciary duties to his employer, not the other way around. Mr Chin, in argument, said that he and the defendant are in the relationship of partners with one another. I do not think that is arguable. On the law as set out in Hospital Products Ltd (supra) the plaintiff has no reasonable cause of action against the defendant for breach of fiduciary duties.
But Mr Chin is not relying simply on the law as stated in Hospital Products Ltd. He is also relying on an essay of Professor Paul Finn, "The Forgotten 'Trust': The People and the State", found in Malcolm Cope, editor, "Equity Issues and Trends". In that essay Professor Finn states, at 139, that public officials can be said to hold public property on trust for the people. Thus, if those officials misuse public property for their own benefit they will be liable to account for any gains made by them on orthodox fiduciary grounds, no less so than the company director or the trustee. He says, at 142, that public officers stand in a fiduciary relationship to the people whom they have been elected or appointed to serve. As stated previously, civil action can be taken against them for the recovery of gains made in breach of their public trusteeship (143). A public official can be charged with corruption under s 83 of the Criminal Code of Western Australia, for example, for acting corruptly in the performance or discharge of the functions of his office or employment so as to gain a benefit for himself or for some other purpose. He can be prosecuted for corruption, extortion and bribery. His actions can also be declared void for illegality. Wilkinson v Osborne (1915) 21 CLR 89 is an example of this. Two members of State Parliament were also real estate agents. A certain land owner wanted to sell his land to the Government. The two politicians agreed for a fee to put pressure on the Government to buy this land. The High Court held that the agreement was void and illegal on grounds of public policy. At 147 Professor Finn notes that public officials can be sued in tort for misfeasance of public office. This form of tort fell into disuse in the mid‑19th century but was rediscovered in Victoria in 1959 - in Farrington v Thomson [1959] VR 286 and is now enjoying a new life. At 148 Professor Finn notes that equity is the latest comer to the fiduciary regulation of officials. If a public official has made illegal gains in office he can be made to account for those gains. Usually the same misconduct would also amount to criminal misconduct but, if needs be, equity can be enlisted to strip a disloyal official of bribes and secret commissions and secret profits made in collusive agreements with government contractors. I consider that none of this law as outlined by Professor Finn avails the plaintiff in this case and that he has no reasonable cause of action for stating that the defendant owes him fiduciary duties and has breached those duties.
I consider the whole pleading should be dismissed as not disclosing any reasonable cause of action in its present form. I will give the plaintiff a further opportunity to replead the estoppel and administrative law causes of action. However, in relation to the other causes of action - the right to work, the constitutional one and the fiduciary duties - I consider that the plaintiff has no arguable cause of action and should not be given leave to amend. If he wishes to replead those clauses he will need to appeal my decision.
This is the second time that I have struck out the plaintiff's pleading in toto and I am thinking of making an order that the plaintiff pay the defendant's costs of the application to be taxed and payable forthwith. But I will hear the parties on that and on other matters.