Glianos v Minister for Education Queensland
[2006] QSC 197
•21 July 2006
SUPREME COURT OF QUEENSLAND
CITATION:
Glianos v Minister for Education Queensland & Anor [2006] QSC 197
PARTIES:
DIMITRI GLIANOS
(Plaintiff)
v
MINISTER FOR EDUCATION QUEENSLAND
(First Defendant)
and
STATE OF QUEENSLAND
(Second Defendant)FILE NO/S:
S9603 of 2002
DIVISION:
Trial Division
PROCEEDING:
Preliminary application
DELIVERED ON:
21 July 2006
DELIVERED AT:
Supreme Court, Brisbane
HEARING DATE:
19 July 2006
JUDGE:
Wilson J
ORDER:
Leave granted to the plaintiff to file an amended reply as per exhibit 2 in the preliminary application but omitting therefrom paragraphs 5.4, 7.2 and 11.2 and the various subparagraphs under them.
CATCHWORDS:
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – AMENDMENT – where the plaintiff wishes to amend his reply to raise abuse of process and estoppel issues – whether leave should be granted
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – JURISDICTION AND GENERALLY – GENERALLY – where the plaintiff wishes to amend his reply to allege abuse of process in the form of a collateral attack on an earlier decision of an Industrial Magistrate – whether the parties and issues before the Industrial Magistrate and this Court are sufficiently similar to constitute abuse of process
ESTOPPEL – FORMER ADJUDICATION AND MATTERS OF RECORD OR QUASI RECORD – FORMER ADJUDICATION – JUDGMENT INTER PARTES – PARTIES – WHO ARE BOUND – where the plaintiff wishes to amend his reply to raise estoppel issues – where the defendants before the Industrial Magistrate and this Court are different (being Workcover and the State of Queensland) – whether there is sufficient privity between Workcover and the State of Queensland in relation to the proceedings in the Magistrates Court to raise estoppel against the defendant in the present action
ESTOPPEL – FORMER ADJUDICATION AND MATTERS OF RECORD OR QUASI RECORD – FORMER ADJUDICATION – JUDGMENT INTER PARTES – ISSUE ESTOPPEL – IDENTITY OF ISSUES – OTHER CASES – where the plaintiff wishes to amend his reply to raise estoppel issues – whether the issues decided by the Industrial Magistrate are sufficiently similar to the issues pleaded in the defence to enliven estoppel
Workcover Queensland Act 1996 (QLD), s34, s135, s135A, s306, s319, s331, s332, s403A, s506
Hunter v. The Chief Constable of the West Midlands Police [1982] AC 529, considered
State Bank of New South Wales Limited v Stenhouse Limited (1997) Australian Torts Reports 81-423, applied
Carl Zeiss Stiftung v Rayner & Keeler Ltd(No. 2) [1967] 1 AC 853, considered
Kuligowski v Metrobus [2004] HCA 34, (2004) 220 CLR 363, applied
Labaj and WorkCover Queensland (No. C40 of 2003) 17 September 2003, reported in the Queensland Government Industrial Gazette, 3 October 2003 page 370, considered
Ramsay v Pigram (1967-68) 118 CLR 271, considered
Carl Zeiss Stiftung v Rayner & Keeler Ltd(No.3) [1970] Ch 506, considered
Blair v Curran (1939) 62 CLR 464, considered
Egri v DRG Australia Ltd (1988) 19 NSWLR 600, considered
COUNSEL:
T Matthews and C Conway for the plaintiff
R Douglas SC and R Treston for the defendantsSOLICITORS:
Quinlan Miller & Treston for the plaintiff
Crown Solicitors for the defendant
[1] Wilson J: This is an application made at the commencement of trial to file an amended reply. The plaintiff claims damages for negligence and/or breach of contract and/or breach of statutory duty against the Minister for Education and the State of Queensland. His claim includes claims for aggravated and exemplary damages.
[2] At the outset I observe that the Minister for Education is not a separate entity and I shall refer simply to “the defendant”, being the State of Queensland.
[3] The plaintiff was the principal of a State high school. He was the subject of an investigation by the Criminal Justice Commission (“CJC”) over the period January 1999 to June 1999. The CJC then referred the matter to Education Queensland (“EQ”), which carried out investigations over the period August 1999 to May 2000.
[4] On 27 September 2000 the plaintiff was advised of EQ's findings. On 27 February 2001 he was advised that the allegations were substantiated and that disciplinary action was under consideration. In the meantime he had been suspended on full pay from 18 October 1999, and whilst still under suspension he resigned in March 2001.
[5] Over the period of the investigation the plaintiff's mental health deteriorated. He suffered an adjustment disorder with depressed mood. He alleges that he suffered more, namely a major depressive disorder, but this has been denied. In this proceeding the plaintiff alleges that he sustained personal injury of a psychiatric nature caused by the negligence and/or breach of contract and/or breach of statutory duty of the defendant. I refer to paragraphs 40 to 46 of the statement of claim and to paragraphs 10, 11, 12, 14, 20 and 21 of the defence, which appear in appendices to these reasons.
[6] The plaintiff made a claim for worker's compensation, which was rejected, and this resulted in proceedings in the Industrial Magistrates Court under the WorkCover Queensland Act 1996 (Qld).
[7] Under s135 of that Act -
"(1)Compensation is payable under this Act for an injury sustained by a worker;"
and under 135A(2) WorkCover must pay the compensation. "Injury" is defined in s34 in the following way -
"34(1)An ‘injury’ is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
…
(5) Despite subsection (1) and (3), ‘injury’ does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances -
(a) reasonable management action taken in a reasonable way by the employer in connection with the worker's employment."
[8] In the proceedings in the Industrial Magistrates Court the plaintiff was the appellant and WorkCover by its Review Unit constituted under s403A of the Act was the respondent. The Magistrate found:
"Whilst I am satisfied on the balance of probabilities that Education Queensland has taken reasonable management action towards Mr Glianos, the appellant, in all the circumstances I find on the balance of probabilities that the employer has taken such action in an unreasonable way for the varying reasons as set out in the body of my decision. I am therefore satisfied that the appellant has disproved the provisions of section 34(5) of the said Act to the required onus. I therefore find that the appellant's medical condition, 'a major depressive disorder, moderate intensity, with mixed anxiety symptoms' falls within the definition of ‘injury’ under the said Act. The appeal is therefore upheld and I order that the appellant's claim for compensation be returned to WorkCover Queensland for the payment of the appropriate moneys owing to him as soon as practicable."
[9] The proposed amendments to the reply, which are contentious, are contained in paragraphs 5.4, 7.2 and 11.2, which will appear in an appendix to these reasons. Two issues were really argued before me:
(1) whether the allegations in the defence to which they respond amount to a collateral attack on the findings of the Magistrate and, as such, are an abuse of process; and,
(2) whether the defendant is precluded by issue estoppel from leading evidence in relation to the facts alleged in those paragraphs.
[10] I turn first to the relevant principles.
[11] As to an abuse of process, the principle was summarised by Lord Diplock in Hunter v. The Chief Constable of the West Midlands Police[1] in these terms:
"The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made."
[1][1982] AC 529 at 541.
[12] Of course, in the present case it is a matter of whether the defendant is precluded from raising certain matters in response to the statement of claim. The matters which ought ordinarily be considered when such an abuse of process is raised were summarised in State Bank of New South Wales Limited v Stenhouse Limited[2] by Giles CJ of the Commercial Division of the New South Wales Supreme Court in these terms:
[2](1997) Australian Torts Reports 81-423 at 64,089 (“the State Bank case”).
"The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice, and amongst the matters to which regard may be had are –
(a)the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or ultimate issue;
(b)the opportunity available and taken to fully litigate the issue;
(c)the terms and finality of the finding as to the issue;
(d)the identity between the relevant issues in the two proceedings;
(e)any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; all part of -
(f)the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and
(g)an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process."
[13] So far as issue estoppel is concerned, the relevant factors were summarised by Lord Guest in Carl Zeiss Stiftung v Rayner & Keeler Ltd(No. 2),[3] which was approved by the High Court in Kuligowski v Metrobus,[4] as follows:
[3][1967] 1 AC 853 at 935.
[4](2004) 220 CLR 363 at 373.
"(1)that the same question has been decided;
(2)that the judicial decision which is said to create the estoppel was final; and,
(3)that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies."
[14] The process in the Industrial Magistrates Court was succinctly summarised by the President of the Industrial Court, Mr Hall, in Labaj and WorkCover Queensland.[5] He said this:
"The scheme of the WorkCover Queensland Act 1996 is that claims for compensation are, in the first instance, determined by WorkCover. A claimant aggrieved by WorkCover's decision is given a right to what is (hopefully) an expeditious and inexpensive internal administrative review. However, if the statutory review fails to resolve issues between WorkCover and the claimant, the scheme moves from administrative decision making to a trial of the claim. The appeal de novo, as it is sometimes called, to the Industrial Magistrate is in truth a full trial at which each party is entitled to and should call all evidence available which is favourable to that party's case. It is a trial at which witnesses are exposed to cross-examination. It is a trial in which in the determination of the issue whether the claimant has brought himself within the definition of ‘injury’ the Industrial Magistrate must impose upon the claimant a burden of proof on the balance of probabilities."
[5](No. C40 of 2003) 17 September 2003, reported in the Queensland Government Industrial Gazette, 3 October 2003 page 370.
[15] The powers of the Industrial Magistrate on such a hearing are to be found in section 506 (1) of the Act; they are powers to
(a)confirm the decision; or
(b)vary the decision; or
(c) set aside the decision and substitute another decision; or
(d)set aside the decision and return the matter to the respondent with the directions the Magistrate considers appropriate.
[16] There is then provision for an appeal to the Industrial Court under s509.
[17] I am assuming for present purposes, as it was not in issue before me, that the decision of the Industrial Magistrate had the necessary finality to satisfy the requirements of both the abuse of process principle and issue estoppel.
[18] I come then to the parties. In the Industrial Magistrates Court the parties were the present plaintiff and WorkCover. In this proceeding the parties are the plaintiff and the State of Queensland. The State of Queensland is sued as the employer. WorkCover is a body corporate pursuant to s331 of the Act. Pursuant to s332:
"(1)WorkCover represents the State.
(2)Without limiting subsection (1), every WorkCover policy or other insurance contract with WorkCover is guaranteed by the government of the State.
(3)If WorkCover is unable to pay from a fund under its control an amount payable by WorkCover under a policy or contract guaranteed under subsection (2), the amount is to be paid out of consolidated fund to WorkCover.
(4)The consolidated fund is appropriated for the amount."
[19] Under the statutory scheme WorkCover is the insurer of the employer. A proceeding is brought against an employer but WorkCover is entitled to the conduct of that proceeding for the employer. See s306(1), (4) and (5):
"(1) If a proceeding is brought for damages, the proceeding must be brought against the employer of the injured or deceased worker and not against WorkCover.
…
(4)If the employer is not a self-insurer, legal process that starts the proceeding must be served on WorkCover within 30 days after the employer has been served, and no step may be taken in the proceeding until WorkCover or the self-insurer has been served.
(5)WorkCover is entitled to conduct for an employer, other than an employer who is a self-insurer, all proceedings taken to enforce the claim or to settle any matter about the claim."
[20] WorkCover is to indemnify the employer except as to a claim for exemplary damages. See s319:
"(1)A court can not award exemplary or punitive damages against WorkCover in a claimant's proceeding for damages.
(2)However, the court may give a separate judgment against an employer for the payment of exemplary or punitive damages if the court considers that the employer's conduct is so reprehensible that an award of exemplary or punitive damages is justified.
(3)WorkCover can not indemnify an employer against an award of exemplary or punitive damages."
[21] So the actual parties to the proceedings in this Court are not the same as the parties to the proceeding in the Industrial Magistrates Court. It is a question of whether there is relevant privity between WorkCover and the State of Queensland. In Ramsay v Pigram[6] Barwick CJ referred to three classes of privies, of blood, of title and of interest. He went on to explain that to be bound by privity of interest the privy must claim under, through or on behalf of the party bound. In that case there was a judgment in favour of the driver of a car in a negligence action brought by him. It did not create an estoppel in favour of his employer who had no interest in the first action and did not claim under or through the employee. See the discussion in Spencer Bower Res Judicata, third edition at page 231.
[6](1967-68) 118 CLR 271 at 279.
[22] The question is whether there is sufficient privity of interest between the State of Queensland and WorkCover in relation to the proceedings in the Magistrates Court. The State, the putative privy, did not incur any obligation from the Industrial Magistrates Court proceeding and its determination:[7] the State and WorkCover are separate entities. The Industrial Magistrates Court decision not having given rise to any liability in the State, I consider that the relevant privity has not been established.
[7]See Carl Zeiss Stiftung v Rayner & Keeler Ltd (No.3) [1970] Ch 506 at 541.
[23] The next issue is whether the same question was determined by the Industrial Magistrate as is for determination in the present case. There is, with respect, a very full and lucid discussion of this by Dixon J in Blair v Curran.[8] It was summarised succinctly by McHugh JA in Egri v DRG Australia Ltd[9] in these terms:
"A final decision, once given by a competent tribunal, forever binds the parties and all those who claim through them in respect of any issue of fact or law which was legally indispensable to that decision: Blair v Curran (1939) 62 CLR 464 at 531-532 and Brewer v Brewer (1953) 88 CLR 1 at 15-16. However, no estoppel arises concerning evidentiary facts, no matter how fundamental they may have been in the chain of proof or reasoning concerning the decision on an ultimate issue: Brewer v Brewer (at 15) and Thoday v Thoday [1964] P 181 at 198."
[8](1939) 62 CLR 464 at 531 – 533.
[9](1988) 19 NSWLR 600 at 603.
[24] I turn to paragraph 5.4 of the proposed reply. It deals with paragraphs 11.3, 11.4, 11.5 and 12.6 of the amended defence. It raises questions of collateral attack on a final judgment and issue estoppel.
[25] 5.4.1 and 5.4.2 recount the fact of the proceedings in the Industrial Magistrates Court and their determination.
[26] 5.4.3 alleges that WorkCover, as insurer, was a party and/or privy to the action in the Industrial Magistrates Court and 5.4.4 alleges that WorkCover insures and indemnifies the defendant in the present proceeding and is therefore a privy to this action. For the reasons I have already given I consider those assertions to be wrong.
[27] 5.4.5 raises an estoppel relying on the Magistrate's ultimate factual conclusion that reasonable management action was undertaken in an unreasonable way. If one turns to 11.3 of the defence it raises specific allegations about the EQ investigation as to its ambit and width, its duration and the proportionality of its findings. The issue of fact which the Magistrate determined and which was legally indispensable to his decision was that reasonable management action had been undertaken in an unreasonable manner. What the defendant wishes to do is to lead evidence to the contrary of findings made by the Magistrate of an evidentiary nature on the way to his ultimate factual finding. In these circumstances there can, in my view, be no basis for an estoppel. Further, the issue before the Magistrate was whether there had been an injury sustained. This is different from the issue before this Court in the relevant paragraphs, which is whether there was a breach of a duty of care or of a contractual duty or of a statutory duty.
[28] Paragraph 5.4.6 of a proposed reply deals with paragraph 11.4 of the defence, which is an allegation that the plaintiff was afforded natural justice and that the employer was reasonable and fair. Again, the facts which the defendant wishes to prove are the contrary of evidentiary factual findings by the Magistrate on the way to his ultimate factual finding. Again, the issues are different and again I consider that no estoppel can arise.
[29] The same can be said with respect to paragraph 5.4.7 of the proposed reply which deals with paragraph 11.5 of the amended defence.
[30] Paragraph 5.4.8 of the proposed reply deals with paragraph 12.6 of the amended defence in which the defendant does not admit that the plaintiff's colleagues were directed not to speak with him. This is a point of the same character as those with which I have just dealt and again there is no basis for an estoppel.
[31] I come to paragraph 7.2 of the proposed reply which deals with paragraphs 14.8, 14.10, 14.13, 14.14, 14.15, 14.16, 14.19, 14.20 and 14.22 of the defence. 7.2.2 deals specifically with 14.8, 14.10, 14.15, and 14.22. In paragraphs 43 to 47 of the statement of claim there are allegations of breach of duty of care, breach of contractual duty and breach of statutory duty. In 14.8 of the defence it is alleged that at no time did the employer act in a manner which was unreasonable having regard to any foreseeable or unnecessary risk of injury to the plaintiff. In 14.10 it is alleged that at all times the employer took adequate precautions for the safety of the plaintiff and provided him with a safe system of work. In 14.15 it is alleged that the investigation was undertaken in a reasonable and timely manner, and in 14.22 it is alleged that the plaintiff was provided a safe system of work and a safe way of conducting that work but that in any event these were matters of discipline outside the system of work.
[32] Again the plaintiff, in the proposed reply, relies upon the ultimate factual finding by the Magistrate of reasonable management action undertaken in an unreasonable way. In my view the only allegation in the defence which comes anywhere near the ultimate finding of the Magistrate is that in 14.15, but again the issues are different. "Reasonable" is used in the defence in the context of breach of duty of care, breach of contract, and breach of statutory duty, whereas it was used in a different context by the Magistrate. Accordingly I cannot see a basis for an estoppel there.
[33] I come to 7.2.3 of the proposed reply which refers to 14.13 and 14.14 of the defence, which in turn refers to paragraphs 43 to 47 of the statement of claim. 14.13 alleges that the advice given to the plaintiff in respect of the nature and existence of the CJC inquiry was reasonable and proper and 14.14 alleges that the delivery in fact and in mode of the CJC findings was reasonable. The Magistrate found that the delivery of the CJC report was unacceptable and that the EQ report was delivered in an unacceptable way and with unreasonable and unacceptable delay. I have difficulty seeing why the plaintiff should be able to plead matters relating to the delivery of the EQ report in response to allegations relating to the CJC report. Further, it seems to me that this is a case of different evidentiary facts directed at different issues. I see no basis for an estoppel.
[34] 7.2.4 of the proposed reply relates to 14.16 of the defence. 14.16 alleges that the plaintiff was accorded natural justice in the conduct of the investigation. What 7.2.4 of the reply refers to is a finding of the Magistrate that the time allowed for response to the EQ investigation was unreasonable. Again, it is a case of different evidentiary facts directed at different issues, and no basis for an estoppel.
[35] 7.2.5 I would analyse in a similar way. It refers to the defence paragraphs 14.19 and 14.20.
[36] I come to the reply, paragraph 11.2. There are in fact two paragraphs so numbered and I am referred to the second fuller paragraph which is so numbered and which is followed by 11.2.1 and 11.2.2. Paragraphs 20 and 21 of the defence invoke section 312(1), (2) and (3) of the Act.
"312(1): In deciding whether a claimant is entitled to recover damages not reduced on account of contributory negligence, or at all, all courts must have regard to whether the claimant has proved such of the following matters as are relevant to the claim -
(a)that the employer had made no genuine and reasonable attempt to put in place an appropriate system of work to guard the worker against injury arising out of events that were reasonably readily foreseeable;
(b)that the actual and direct event giving rise to the worker's injury was actually foreseen or reasonably readily foreseeable by the employer;
…
(e)that the worker did everything reasonably possible to avoid sustaining the injury;
…
(2) If the claimant relies exclusively on a failure by the employer to provide a safe system of work and fails to prove the matter mentioned in subsection (1)(a), the court must dismiss the claim.
(3) If the claimant fails to prove the matter mentioned in subsection (1)(b), the court must dismiss the claim."
[37] The matters pleaded in paragraphs 20 to 21 of the defence are ultimate factual conclusions which would defeat or reduce on account of contributory negligence the plaintiff's claim to damages. They are different from the factual conclusion reached by the Magistrate. I see no basis for an estoppel.
[38] It follows that in so far as they set up estoppel, paragraphs 5.4, 7.2 and 11.2 of the proposed reply should be disallowed.
[39] I have come to a similar conclusion in so far as they set up an abuse of process constituted by a collateral attack on the Magistrate's decision. I am mindful of the various factors set out in the State Bank case. The matter which is of particular significance here is that the issue before the Magistrate was different from the issue before this Court, both in the sense of being different issues in content and in the sense of being litigated between different parties.
[40] Accordingly, those pleas should be disallowed in so far as they rely on an abuse of process.
[41] I will give the plaintiff leave to file an amended reply as per the document which will be Exhibit 2 on the application but omitting therefrom paragraphs 5.4, 7.2 and 11.2 and the various subparagraphs under them.
APPENDICES TO JUDGMENT IN THE MATTER OF DIMITRI GLIANOS v MINISTER FOR EDUCATION QUEENSLAND and STATE OF QUEENSLAND
I STATEMENT OF CLAIM
Paragraphs 40 - 46II DEFENCE
Paragraphs 10 to 12
14
20 to 21III REPLY
Paragraphs 5.4
7.2
11
11.2I STATEMENT OF CLAIM
40. The EQ Investigation:
(i)was oppressively wide in the areas it covered;
(ii)was excessively long having continued from 16 June 1999 to 27 February 2001;
(iii)produced findings that were disproportionate to the nature of the matters investigated;
(iv)did not afford the Plaintiff natural justice and was thereby unreasonable and oppressive in that:
1.the Plaintiff was not provided with material obtained pursuant to the EQ Investigation and therefore was not made aware of the entire case he was called upon to answer;
2.the Plaintiff was not permitted to discuss the EQ Investigation with any of this former colleagues;
41During the period of time over which the EQ Investigation was conducted:
(a)The Plaintiff was suspended from attending at his place of employment again and again on a periodic basis by Education Queensland;
(b)No valid explanation for the continuation of his periods of suspension was given by Education Queensland to either the Plaintiff or to his staff and students;
(c)the Plaintiff's colleagues were directed not to speak with him leaving them wondering what he had done wrong and leaving the Plaintiff alienated;
(d)no explanation for the Plaintiff's sudden absence from his place of employment was provided by Education Queensland or the Defendant to his former staff and students resulting in uncertainty and a complete loss of professional standing and personal dignity;
42. Once the investigation was completed:
(a)the Plaintiff's name was not immediately cleared of any wrongdoing in relation to allegations of sexual misconduct;
(b)the findings of the investigation unreasonably relied on unsubstantiated allegations and unreasonably ignored evidence in support of the Plaintiff;
(c)the disciplinary action proposed as a result of the investigation findings was disproportionate to the matters investigated.
43. As a result of the matters alleged herein the Plaintiff suffered personal injuries and has, as a consequence, suffered loss and other damage.
44. The Plaintiff's personal injuries were occasioned by the negligence and/or breach of contract of the First Defendant/or Second Defendant, its servants and/or agents.
PARTICULARS
(a)Failing to take any or any adequate precautions for the safety of the Plaintiff whilst he was engaged in his employment;
(b)Failing to observe that the Plaintiff was in the circumstances in a position of peril;
(c)Failing to warn or adequately warn the Plaintiff of existence of the CJC inquiry;
(d)Failing to warn or adequately warn the Plaintiff of the delivery of the CJC findings and referral to Education Queensland;
(e)Failing to conduct the EQ Investigation in a reasonable manner;
(f)Failing to conduct the EQ Investigation in a timely manner;
(g)Failing to afford the Plaintiff natural justice in the conduct of the EQ Investigation;
(h)Failing to ensure the findings of the EQ Investigation were in proportion to the matters investigated;
(i)Failing to provide adequate information to the Plaintiff about the status of the EQ Investigation;
(j)Failing to provide adequate reasons to the Plaintiff for ongoing periods of suspension;
(k)Failing to provide adequate information to the Plaintiff's staff and students in relation to his periods of suspension;
(l)Failing to take adequate action to protect the Plaintiff's reputation and dignity;
45. Further and/or in the alternative, in breach of the duty referred to in paragraph 3 hereof and/or in breach of the terms of the contract of employment between the Plaintiff and Education Queensland and the Defendants, the Defendants, the Defendants by their servants and/or agents negligently and carelessly failed to provide a safe place of work for the Plaintiff and a safe system of conducting that work.
46. The Plaintiff repeats and relies on the particulars contained in paragraphs 4 to 42 inclusive hereof.
II DEFENCE
10Further to paragraphs 36, 37 and 38 of the amended statement of claim, the defendants:-
10.1say that the plaintiff did not respond, as requested in the letter of 27th September 2000, at any time prior to 27th February 2001 or at any time prior to his resignation on 8th March 2001;
10.2at no time did the plaintiff appeal from or challenge the decision of 27th February 2001, or any earlier decision, under Part 7 of the Public Service Act or the Judicial Review Act;
10.3the resignation of 8th March 2001 was a voluntary act on the part of the plaintiff.
11As to paragraph 40 of the amended statement of claim the defendants:-
11.1deny the allegations contained therein;
11.2so deny the lastmentioned allegations on the basis that they are untrue because of the matters hereinafter pleaded in this paragraph;
11.3say that the EQ investigation:-
11.3.1was appropriate and apt, in its ambit and width, having regard to the allegations made against the plaintiff;
11.3.2was not excessively long having regard to the lastmentioned allegations and the course of the investigation as pleaded above;
11.3.3produced findings which were proportionate to the nature of such matters being investigated;
11.4say that the plaintiff was afforded natural justice, and the employer was reasonable and fair in that the plaintiff, in the letter of 27th September 2000, was provided with the relevant material obtained pursuant to the EQ investigation, the allegations made against him, and was thereby aware of the case he was called upon to answer;
11.5say that the plaintiff, after 27th September 2000, was not precluded from discussing the EQ investigation with any of his colleagues or former colleagues.
12As to paragraph 41 of the amended statement of claim the defendants:-
12.1admit the allegations contained in subparagraph (1);
12.2deny that no valid explanation for the continuation of the plaintiff's suspension was given to the plaintiff;
12.3so deny the lastmentioned allegation on the basis that it is untrue because, and the defendants say, the plaintiff was given that the explanation in the initial suspension letter of 18th October 1999, and such explanation was expressly or implicitly adopted in the subsequent letters of extension;
12.4admit that no explanation was given, by the defendants, to staff or students at the school, as to the plaintiff's absence;
12.5say that, given no explanation, there is no question of the validity or invalidity of such explanation;
12.6do not admit that the plaintiff's colleagues were directed not to speak with him;
12.7so not admits the lastmentioned allegation on the basis that the defendants are unable to say whether the allegation is true or false;
12.8do not admit that the plaintiff was left wondering what he had done wrong or that he felt alienated;
12.9so not admit the lastmentioned allegation on the basis that the defendants are unable to say whether the allegation is true or false;
12.10admit that no explanation for the plaintiff's absence from his place of employment was provided to his former staff or students;
12.11deny that the absence of any explanation resulted in uncertainty or complete loss of the plaintiff's professional standing and personal integrity;
12.12so deny the lastmentioned allegations on the basis that they are untrue because there is no evidence available to the defendant that either occurred.
14As to paragraphs 43, 44, 45, 46 and 47 of the statement of claim the defendants:-
14.1admit that in 1999 the plaintiff was suffering from a psychiatric condition which consists of an adjustment disorder with depressed mood;
14.2deny that the plaintiff developed a major depressive disorder;
14.3so deny the lastmentioned allegation on the basis that it is untrue because there is no acceptable medical evidence which supports such a finding;
14.4deny that the defendants or either of them are liable to the plaintiff as alleged therein on the basis hereinafter pleaded in this paragraph;
14.5deny that the defendants or either of them owed a duty of care (in contract or tort, pursuant to statute or otherwise) to the plaintiff in respect of the matters pleaded in the statement of claim or herein in respect of the events which occurred between June 1999 and February 2001;
14.6so deny the lastmentioned allegation on the basis that the allegation is untrue because of:-
14.6.1the matter pleaded in paragraph 2 hereof;
14.6.2the events pleaded by the plaintiff which occurred between about June 1999 and February 2001 are matters pertaining to the actual or proposed discipline of the plaintiff, such matters being solely regulated by Parts 6 and 7 of the Public Service Act, such provisions not affording the plaintiff a private right of action for any breach thereof;
14.6.3the events pleaded by the plaintiff do not concern the system of work nor did they pertain to the tasks for which the plaintiff was employed, namely duties as headmaster;
14.7hereinafter plead in this paragraph, in the alternative, on the basis that the employer owed to the plaintiff a duty of care which extended to the lastmentioned matters;
14.8say that at no time did the employer act in such a manner which was unreasonable having regard to any foreseeable or unnecessary risk of injury to the plaintiff;
14.9say that, in respect of the conduct pleaded in the amended statement of claim, there was no foreseeable or unnecessary risk of injury to the plaintiff;
14.10say that at all times the employer, by its actions, took adequate precautions for the safety of the plaintiff and provided him with a safe system of work;
14.11say that at no time was the plaintiff reasonably observable to be in a position of peril;
14.12say that at no time was it reasonably foreseeable that a plaintiff was suffering, or may suffer a psychiatric injury, or was otherwise susceptible in respect of the same;
14.13say that the advice given to the plaintiff in respect of the nature and existence of the CJC enquiry was reasonable and proper;
14.14say that the delivery, in fact and in mode, of the CJC findings under cover of letter of 30th August 1999, was reasonable;
14.15say that the investigation was undertaken in a reasonable and timely manner having regard to the nature of the allegations, and the response of the plaintiff;
14.16say that the plaintiff was accorded natural justice in the conduct of the investigation;
14.17in the alternative says that there is no obligation in the employer, as a matter of exercise of reasonable care, to afford the plaintiff natural justice in respect of the investigation;
14.18say that the findings of the investigation were proportionate to the matters investigated;
14.19say that at all times the plaintiff was kept informed about the fact that the investigation was ongoing;
14.20say that the plaintiff was afforded adequate reasons for the ongoing periods of suspension, the express or implicit reference being to the content of the initial suspension letter of 18th October 1999;
14.21say that the exercise of reasonable care on the part of the employer did not require the plaintiff's reputation or dignity to be protected, in the sense of instructing him that he ought be able to speak to staff at the school, or that some statement ought be made to staff and students by way of explanation of his absence from the school;
14.22say that in respect of the matters pleaded, the plaintiff was provided a safe system of work and a safe way of conducting that work, but, in any event say the subject matter consisted of matters of discipline which were outside the system of work;
14.23admit that the school was a "workplace", the defendants an "employer" and the plaintiff a "worker" within the meaning of the Workplace Health & Safety Act 1995, whilst he was at the school but not whilst he was away from the school;
14.24further or in the alternative says that the said provisions of the Public Service Act operated to the exclusion of the Workplace Health & Safety Act in respect of the matters pleaded in the amended statement of claim;
14.25in the alternative says that, by reason of the matter pleaded in this paragraph, the defendants discharged the obligation they had to ensure the workplace health and safety of the plaintiff.
20Further, in the foregoing premises, the plaintiff cannot prove, as required by section 312 of the WorkCover Queensland Act:
20.1that the employer made no genuine and reasonable attempt to put in place an appropriate system of work to guard the plaintiff against injury arising out of events that were reasonably readily foreseeable;
20.2that the actual and direct event giving rise to the plaintiff's injury was actually foreseen or reasonably readily foreseeable by the defendants;
20.3that the plaintiff did everything reasonably possible to avoid sustaining the injury.
In the premises, the proceedings of the plaintiff must be dismissed under subsection 312(2) and subsection 313(3) of the WorkCover Queensland Act or, alternatively, may be dismissed, or the damages of the plaintiff reduced on the basis that the plaintiff substantially contributed to his injury under subsection 312(4) of the WorkCover Queensland Act.
III PROPOSED REPLY:
5.4says further in relation to the allegations in paragraphs 11.3, 11.4, 11.5 and 12.6 of the amended defence that the allegations made are inconsistent with findings made by Industrial Magistrate Zahner in proceeding number 4336 of 2002. The said allegations constitute a collateral attack on the findings in relation to issues litigated between the plaintiff and the defendants and/or their privies and further or alternatively between the plaintiff and a person closely associated with the defendants. In the premises the defendants are estopped and precluded from making the said allegations in this proceeding and are bound by the finding in proceeding number 42336 of 2002 in the Industrial Magistrates Court aforementioned.
Particulars
5.4.1The plaintiff appealed a decision of the QComp review unit to the Industrial Magistrates Court ("proceeding number 4336 of 2002") claiming that he had suffered a psychiatric injury as the result of management action taken in an unreasonable way by his employer, Education Queensland, and that therefore he had suffered a compensable injury under the WorkCover Queensland Act 1996;
5.4.2That appeal was heard on 5, 6, 8 and 9 August 2002 and a decision was given on 17 October 2002 in the appellant's favour;
5.4.3WorkCover Queensland as insurer was a party and/or a privy to the action in the Industrial Magistrates Court;
5.4.4WorkCover Queensland insures and indemnifies the defendants in the proceedings before this Court and is therefore a privy to this action;
5.4.5The defendants are estopped from making the allegations in paragraph 11.3 of the amended defence because in proceeding number 4336 of 2002 Industrial Magistrate Zahner found: "Whilst I am satisfied on the balance of probabilities that Education Queensland has taken reasonable management action towards Mr Glianos, the Appellant, in all the circumstances I find on the balance of probabilities that the employer has taken such action in an unreasonable way, for the varying reasons as set out in the body of my decision."
5.4.6The defendants are estopped from making the allegations in paragraph 11.4 of the amended defence because in proceeding number 4336 of 2002 Industrial Magistrate Zahner found: "On his birthday in October 1999, Mr Glianos was called by Tom Mould to his office where he was informed he was suspended forthwith ... the suspension was effected even though the appointed Investigators recommended he be assigned to duties external to the school until the investigation or any actions associated therewith were concluded (Ex. 42). I note that such recommendations by the Investigators and suspension was taken by Mould on behalf of Education Queensland without any prior opportunity being afforded to Mr Glianos to respond to such allegations before the decision to suspend him was put into effect. I suggest and find that such procedure is unreasonable and unjust."
5.4.7The defendants are estopped from making the allegations in paragraph 11.5 of the amended defence because in proceeding number 4336 of 2002 Industrial Magistrate Zahner found: "When one considers the words I find spoken by Ms Holm to staff 're no contact with Mr Glianos'; Mr Mould's response to Ms Mengel on the same issue; advices given to the Deputy Principals and Mr Glianos in such regard by Mr Mould and the Investigators, Mr Flynn and Mr Goodworth; and lastly the wording in the final sentence of Exhibit 6 letter to Mr Glianos; one could imagine the confused minds of such persons as to when and what could be discussed with Mr Glianos, or by him to staff."
5.4.8The defendants are estopped from making the allegations in paragraph 12.6 of the amended defence because in proceeding number 4336 of 2002 Industrial Magistrate Zahner found as quoted above at subparagraph 5.4.7.
7.The plaintiff denies the allegations contained in paragraphs 14.8 to 14.22 inclusive, and 14.25 of the amended defence.
7.2Says further in relation to the allegations at paragraphs 14.8, 14.10, 14.13, 14.14, 14.15, 14.16, 14.19, 14.20 and 14.22 of the amended defence that the allegations are inconsistent with findings made by Industrial Magistrate Zahner in proceeding number 4336 of 2002. The said allegations constitute a collateral attack on the findings in relation to issues litigated between the plaintiff and the defendants and/or their privies, and further or alternatively between the plaintiff and a person closely associated with the defendants. In the premises the defendants are estopped and precluded from making the said allegations in this proceeding and are bound by the finding in proceeding number 4336 of 2002 in the Industrial Magistrates Court aforementioned.
Particulars
7.2.1The plaintiff repeats and relies on the matters pleaded at subparagraphs 5.4.1 to 5.4.4 herein.
7.2.2The defendants are estopped from making the allegations in paragraphs 14.8, 14.10, 14.15 and 14.22 because in proceeding number 4336 of 2002 Industrial Magistrate Zahner found: “Whilst I am satisfied on the balance of probabilities that Education Queensland has taken reasonable management action towards Mr Glianos, the Appellant, in all the circumstances, I find on the balance of probabilities that the Employer has taken such action in an unreasonable way, for the varying reasons as set out in the body of my decision."
7.2.3The defendants are estopped from making the allegations in paragraphs 14.13 and 14.14 because in proceeding number 4336 of 2002 Industrial magistrate Zahner found: "One would reasonably expect I suggest, due to the sensitivity of the matters, that it [the CJC report] should have been served on the recipient, Mr Glianos, personally, in all the circumstances. Such procedure [leaving the CJC report on the Mr Glianos' doorstep] I find, is unacceptable. ...However, it [the Education Queensland report] was not delivered to Mr Glianos by Education Queensland until almost 5 months later and in the unacceptable manner that it was. I suggest and find that such delay for the delivery to Mr Glianos is unreasonable and unacceptable in all the circumstances."
7.2.4The defendants are estopped from making the allegations in paragraph 14.16 of the amended defence because in proceeding number 4336 of 2002 Industrial Magistrate Zahner found: "Initially, only 14 days was allowed to Mr Glianos to respond to the final 11 allegations, (Ex 22 dated 22.09.00), not received by this solicitors until 2.10.00. I also suggest and find that such time allowing for an appropriate response was totally unreasonable in all the circumstances known to Education Queensland considering it took their Investigators almost 9 months to put it together."
7.2.5The defendants are estopped from making the allegations in paragraphs 14.19 and 14.20 of the amended defence because in proceeding number 4336 of 2002 Industrial Magistrate Zahner found: "Mr Glianos' suspension was enforced for a continuous period from 18 October 1999 to 13 March 2002, almost 2 years 5 months, when the final outcome of the advised disciplinary process dated 27.02.02 (Ex 26) was provided to him. This culminated on 13.03.02 upon the acceptance of Mr Glianos' resignation by Education Queensland. I agree with the submission from Ms Conway that advice on the suspension periods were not provided on a number of occasions to Mr Glianos until after the expiry of the prior suspension period, and without any specific reasons (eg. Exs 16, 17 and 26)."
11The plaintiff denies the allegations contained in paragraphs 20 and 21 of the amended defence.
DIRECT EXPLANATION FOR DENIAL
11.2Further and/or in the alternative, the allegations are inconsistent with findings made by Industrial Magistrate Zahner in proceeding number 4336 of 2002. The said allegations constitute a collateral attack on the findings in relation to issues litigated between the plaintiff and the defendants and/or their privies and further or alternatively between the plaintiff and a person closely associated with the defendants. In the premises the defendants are estopped and precluded from making the said allegations in this proceeding and are bound by the finding in proceeding number 4336 of 2002 in the Industrial Magistrates Court aforementioned.
Particulars
11.2.1The plaintiff repeats and relies on the matters pleaded at subparagraphs 5.4.1 to 5.4.4 herein.
11.2.2The defendants are estopped from making the allegations in paragraph 20 because in proceeding number 4336 of 2002 Industrial Magistrate Zahner found: "Whilst I am satisfied on the balance of probabilities that Education Queensland has taken reasonable management action towards Mr Glianos, the Appellant, in all the circumstances, I find on the balance of probabilities that the Employer has taken such action in an unreasonable way, for the varying reasons as set out in the body of my decision.
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