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David Hingst v Construction Engineering (Aust) Pty Ltd (ABN 62 392 781 199)

David Hingst v Construction Engineering (Aust) Pty Ltd (ABN 62 392 781 199)

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Case Copied 29 March 2019 59 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0058

DAVID HINGST	Applicant
v
CONSTRUCTION ENGINEERING (AUST) PTY LTD (ABN 62 392 781 199)	Respondent

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JUDGES:	PRIEST AP and BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 March 2019
DATE OF JUDGMENT:	29 March 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 67
JUDGMENT APPEALED FROM:	David Hingst v Construction Engineering (Aust) Pty Ltd (No 3) [2018] VSC 136 (Zammit J)

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NEGLIGENCE — Application for leave to appeal — Workplace bullying — Trial judge finding no evidence of bullying — Whether findings of fact by trial judge open — Whether findings of fact inconsistent with incontrovertible or incontestable facts — No error demonstrated — Leave to appeal refused.

COURTS — Duty of judge to ensure a fair hearing where a party is unrepresented at trial — Whether the judge breached duty — Whether the judge failed to afford procedural fairness — No error demonstrated — Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	Mr J P Gorton QC with Mr M J Hooper	Lander & Rogers

PRIEST AP

BEACH JA:

Introduction

David Hingst, the applicant, was employed by the respondent, Construction Engineering (Aust) Pty Ltd (for convenience, ‘CE’ or ‘the respondent’), as a contract administrator from 13 May 2008 to 8 April 2009.

The applicant brought proceedings against CE in the Supreme Court. In essence, he claimed he was bullied in the workplace during the relevant period and as a result had developed psychiatric and physical injuries — including fibromyalgia and irritable bowel syndrome — for which he sought damages in the sum of $1,805,138 (‘the bullying claim’). The applicant also complained that the respondent unlawfully terminated his employment and that the Deed of Release and Settlement (‘the Deed’) he signed in settlement of his unfair dismissal proceeding was executed under duress (‘the unfair dismissal claim’).

Following a trial occupying 18 sitting days, during which the applicant was unrepresented,[1] the judge dismissed the applicant’s proceeding. Her Honour was not persuaded that the applicant was bullied in the workplace, or that the respondent should have known that he was suffering from a depressive or stress-related condition and negligently failed to intervene. The judge also found that the applicant’s unfair dismissal claim was without merit. She found that there had been a genuine redundancy and that the Deed was lawfully executed.[2]
[1]Or, to use modern parlance, self-represented.
[2]Hingst v Construction Engineering (Aust) Pty Ltd (No 3) [2018] VSC 136, [4] (‘Reasons’).

The applicant seeks leave to appeal against the dismissal of his proceeding upon the following grounds:

1.   Her Honour erred in failing to give weight to the evidence of the Appellant which, if accepted would amount to bullying.
2.   On the findings made by Her Honour on the Respondent’s evidence, which Her Honour accepted, the Respondent’s version amounted to bullying and Her Honour should have found the Respondent negligent.
3.   Her Honour erred in law in failing to take…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] VSCA 67
Decision Date: 29 March 2019

CaseChat Overview and Summary

In this matter, David Hingst, the applicant, sought leave to appeal against a decision of the Supreme Court of Queensland, which found no evidence of workplace bullying by the respondent, Construction Engineering (Aust) Pty Ltd. The primary concern in this appeal was whether the findings of fact by the trial judge were open to question and whether they were inconsistent with incontrovertible or incontestable facts. Additionally, the applicant argued that the trial judge had failed in his duty to ensure a fair hearing due to the applicant's lack of representation at trial and that this amounted to a breach of procedural fairness.

The court considered whether the trial judge had erred in his findings and whether these findings were inconsistent with established facts. The court examined the evidence presented and the reasoning of the trial judge to determine if there was any demonstrated error in the findings. The applicant also argued that the trial judge failed in his duty to ensure a fair hearing, given that the applicant was unrepresented. The court scrutinised the procedural fairness afforded to the applicant during the trial.

After thorough examination, the court found no error in the findings of fact made by the trial judge. The court concluded that the findings were consistent with the evidence presented and that there was no inconsistency with established facts. Furthermore, the court determined that the trial judge had not breached his duty to ensure a fair hearing, and that procedural fairness was adequately provided to the applicant. Consequently, the court dismissed the application for leave to appeal.

As a result of the court's decision, the appeal was refused, and the original findings of the trial judge were upheld. No further orders were made by the court.

Orders