Daynes v I-Med Central Queensland Pty Ltd; I-Med Central Queensland Pty Ltd v Daynes

The case of *Daynes v I-Med Central Queensland Pty Ltd; I-Med Central Queensland Pty Ltd v Daynes* was heard in the Court of Appeal of New South Wales, with Bell CJ, Leeming and Free JJA presiding. The dispute arose from allegations of sexual harassment and workplace bullying made by Dr Daynes against I-Med Central Queensland Pty Ltd, which formed the basis for I-Med's attempt to summarily dismiss Dr Daynes from his employment. The primary judge had found that the conduct relied upon for summary dismissal was not established.

The Court of Appeal was required to determine whether the primary judge erred in finding that the conduct alleged by I-Med did not constitute grounds for summary dismissal. Additionally, the court considered the proper assessment of damages for wrongful termination, particularly in circumstances where the employer would have likely terminated the employment on notice at the expiry of a fixed term, and the reasonableness of rejecting a *Calderbank* offer in light of the public vindication sought by the employee.

The Court of Appeal upheld the primary judge's finding that the alleged conduct, described as a "haka" or pelvic thrust, did not establish grounds for summary dismissal. The judges reasoned that the employer had failed to prove the necessary elements for such a dismissal. Regarding damages, the court determined that the loss of a chance was not the appropriate measure, and the assessment should proceed on the balance of probabilities. The court also addressed the costs judgment, noting that even in summary proceedings, key arguments must be addressed.

Ultimately, the appeal by Dr Daynes was dismissed with costs, and the cross-appeal by I-Med was also dismissed with costs. However, leave was granted to Dr Daynes to appeal the costs judgment of the primary judge, and this appeal was allowed with costs. The primary judge's order regarding costs was set aside and replaced with an order that the defendant pay the plaintiff's costs. The cross-summons seeking leave to cross-appeal with respect to costs was dismissed with costs.