FEDERAL COURT OF AUSTRALIA
Gaffney v RSM Bird Cameron (a firm) [2013] FCA 661
Citation: Gaffney v RSM Bird Cameron (a firm) [2013] FCA 661 Parties: ANGELA GAFFNEY v RSM BIRD CAMERON (A FIRM) and BIRDANCO NOMINEES PTY LTD (AS TRUSTEE FOR THE BIRDANCO PRACTICE TRUST) (ACN 009 321377) File number: WAD 281 of 2010 Judge: GILMOUR J Date of judgment:
Corrigendum:
5 July 2013
2 December 2014
Catchwords: PRACTICE AND PROCEDURE – application for summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth) – whether there was no reasonable prospect of successfully prosecuting the action – alleged claims of discrimination Legislation: Australian Human Rights Commission Act 1986 (Cth) s 46PO
Federal Court of Australia Act 1976 (Cth) s 31A
Federal Court Rules 2011 (Cth), r 26.01(1)(a), (c)
Partnership Act 1895 (WA) s 35(1)
Disability Discrimination Act 1992 (Cth) s 4(1), 5(1)
Sex Discrimination Act 1984 (Cth) s 5(1)Cases cited: Atieh v Civil Aviation Safety Authority [2012] FCA 1027
Blisset v Daniel [1853] 68 ER 1022
Crayford Freight Services Ltd v Coral Seatel Navigation Co (1998) 82 FCR 328
Green v Howell [1910] 1 Ch 495
Hill v Compass Ten Pty Ltd (2012) 205 FCR 94
Hopkinson v Marquis of Exeter (1867) LR 5 Eq 63
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372
Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92
Russell v Clarke [1995] 2 Qd R 310
Steuart v Gladstone (1878) 10 Ch D 626
Spencer v Commonwealth of Australia (2010) 241 CLR 118
Varas v Fairfield City Council [2009] FCA 689
Wood v Woad (1874) LR 9 Ex 190
Zhang v University of Tasmania (2009) 174 FCR 366Date of hearing: 14 March 2013 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 170 Counsel for the Applicant: Ms F O'Brien SC with Ms L Kirwan Solicitor for the Applicant: Ilberys Lawyers Pty Ltd (23/09/10 – 17/05/13) Counsel for the Respondents: Mr M Goldblatt Solicitor for the Respondents: Hammond King Touyz FEDERAL COURT OF AUSTRALIA
Gaffney v RSM Bird Cameron (a firm) [2013] FCA 661
CORRIGENDUM
1.The citation contained in the Reasons for Judgment of Justice Gilmour dated 5 July 2013 refers to the First Defendant as “RSM Bird Cameron (A Firm)”. This should be amended to read “RSM Bird Cameron Partners (A Firm)”.
I certify that the preceding one (1) numbered
paragraph is a true copy of the Corrigendum
to the Reasons for Judgment herein of the
Honourable Justice Gilmour.Associate:
Dated: 2 December 2014
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 281 of 2010
BETWEEN: ANGELA GAFFNEY
ApplicantAND: RSM BIRD CAMERON (A FIRM)
First RespondentBIRDANCO NOMINEES PTY LTD (AS TRUSTEE FOR THE BIRDANCO PRACTICE TRUST) (ACN 009 321377)
Second Respondent
JUDGE:
GILMOUR J
DATE OF ORDER:
5 JULY 2013
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The applicant’s claims pleaded under paragraphs [17]-[21], [22]-[35]…
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Details
- Case
- [2013] FCA 661
- Decision Date
CaseChat Overview and Summary
The applicant, Ms Gaffney, brought an action against RSM Bird Cameron (a firm), alleging claims of discrimination and failure to act in good faith. The matter was before the Federal Court, which was tasked with determining whether there was a reasonable prospect of Ms Gaffney successfully prosecuting her action. The court was required to decide if the partnership had acted in good faith and if there were any discriminatory practices. The key issue was whether the partnership's decision to expel Ms Gaffney was fair and whether there were any discriminatory elements in the partnership's actions.
The court found that the partnership had acted in good faith, based on the content of two reports provided to the respondents. The court held that the partnership's decision to expel Ms Gaffney was not discriminatory and was made in good faith. The court found that the partnership had a process in place to review the performance of partners/directors, and that the partnership had followed this process in the case of Ms Gaffney. The court also found that the partnership had not acted in bad faith by providing Ms Gaffney with a report that contained essentially the same terms as the report provided to the other respondents.
The court dismissed Ms Gaffney's claims, finding that there was no reasonable prospect of her successfully prosecuting her action. The court ordered that Ms Gaffney pay the respondents' costs of the interlocutory application. The court found that the partnership had acted in good faith and that there were no discriminatory practices. The court held that the partnership's decision to expel Ms Gaffney was fair and that there were no grounds for the applicant's claims.
The court found that the partnership had acted in good faith, based on the content of two reports provided to the respondents. The court held that the partnership's decision to expel Ms Gaffney was not discriminatory and was made in good faith. The court found that the partnership had a process in place to review the performance of partners/directors, and that the partnership had followed this process in the case of Ms Gaffney. The court also found that the partnership had not acted in bad faith by providing Ms Gaffney with a report that contained essentially the same terms as the report provided to the other respondents.
The court dismissed Ms Gaffney's claims, finding that there was no reasonable prospect of her successfully prosecuting her action. The court ordered that Ms Gaffney pay the respondents' costs of the interlocutory application. The court found that the partnership had acted in good faith and that there were no discriminatory practices. The court held that the partnership's decision to expel Ms Gaffney was fair and that there were no grounds for the applicant's claims.
Orders
Orders of the court
1. The applicant’s claims pleaded under paragraphs [17]-[21], [22]-[35] and [36]-[38] of the Consolidated and Amended Statement of Claim be dismissed.
2. The applicant pay the respondents’ costs of the interlocutory application dated 2 November 2012.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
The applicant’s allegations that the partnership failed to act in good faith is not articulated on the basis that the relevant partners did not hold the view that the expulsion of the applicant was for the benefit of the firm. Rather, the applicant’s contention is that from the content of two Reports in essentially the same terms, provided to each of the respondents respectively, lack of good faith on the part of the partnership may be implied. I will refer to these Reports in more detail below. The facts I have made the following factual findings. They are not the result of the resolution of contested evidence but are largely based upon the affidavit of Hutchinson which includes many annexed documents which in turn include notes of important meetings prepared by the applicant personally. I have also taken into account the affidavit of Mr Peter Lyndon Harris. The applicant commenced employment in 1989 with BPM Pty Ltd which traded as Bird Cameron Chartered Accountants. She was employed as an insolvency supervisor which was a relatively junior position. In 1994, she was appointed as an associate of the firm which is a more senior employee role. In 1996, all professional employees of BPM Pty Ltd, including the applicant, ceased to be employed by that company and commenced employment with the second respondent. She then became a partner in the partnership and a director of the second respondent on 1 July 2002. Management of both respondents is undertaken by the Executive Committee ordinarily consisting of 5 partners/directors appointed by the partners and directors in general meeting every year. An appointment to the Executive Committee is for a period of 3 years and appointments are made so that tenure periods are staggered. One of the roles of the Executive Committee, which is usually undertaken by 2 members of the committee or a member of the committee and a nominated partner in the relevant local office, who is usually the managing partner of the local office, is to consider the performance and welfare of the partners/directors and to conduct periodic reviews in relation to these. Where there is a reasonable perception that a partner/director is underperforming, a process of conferral and counselling is undertaken with that partner. The goal in doing so is to understand the issues involved and search for and identify solutions in consultation and cooperation with the person involved. This process of conferral with partners/directors is a common occurrence and has occurred in relation to many partners/directors over the years with various outcomes. The process is ad hoc in the sense that every partner/director participating in such conferral will have his or her own peculiar issues for which appropriate solutions will vary. At the end of the 2006 financial year, there were discussions at the partners’ retreat about the need for there to be key performance indicators (KPIs) put in place for directors/partners who were not meeting certain benchmark performance levels. Prior to that, partners/directors’ performance was analysed using a variety of methods, for example, based on the review of the management accounts. A decision was made to use the concept of KPIs as a performance review tool for the 2006/2007 financial year for certain partners/directors who were experiencing performance issues. The concept was not used in the 2007/2008 financial year. The partnership decided on the criteria for the conduct of a KPI review and set those criteria out in a memorandum to all partners/ directors, dated 28 June 2006.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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