Govier v The Uniting Church in Australia Property Trust (Q)

[2018] HCATrans 65

[2018] HCATrans 065

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B51 of 2017

B e t w e e n -

TONI MAREE GOVIER

Appellant

and

THE UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (Q) (ABN 25 548 385 225)

Respondent

BELL J
GAGELER J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 13 APRIL 2018, AT 10.00 AM

Copyright in the High Court of Australia

MR K.C. FLEMING, QC:   If the Court pleases, I appear with MR W.D.P. CAMPBELL, for the appellant.  (instructed by Kevin Bradley Solicitor)

MR R.J. DOUGLAS, QC:   If it please the Court, I appear with MR R.C. MORTON, for the respondent.  (instructed by McInnes Wilson Lawyers)

BELL J:   Yes, Mr Fleming.

MR FLEMING:   Thank you, your Honours.  Your Honours have the oral argument, the three pages of oral argument summary.

BELL J:   Yes.

MR FLEMING:   There is one error at paragraph 5 that we must point out and that is the legislation is 1999, not 1992.

BELL J:   Thank you.

MR FLEMING:   Thank you, your Honours.  Your Honours, the question in this case is whether or not Sullivan v Moody (2001) 207 CLR 567 and the State of New South Wales v Paige (2002) 60 NSWLR 371 preclude the existence of a duty owed by an employer to an employee to take care in doing acts that might injure an employee merely because the acts are done in the course of a workplace investigation, whether or not the investigation is governed by obligations imposed by statute or whether or not there are other common law remedies.

Your Honours, in our submission – and I turn to the summary of oral argument – there can be no doubt that the common law, whether in contract or tort, and legislation do not operate alone but rather in a symbiotic relationship, and that is an extraction from Brodie v Singleton from the former Chief Justice.  Justice Gageler said something similar in Commonwealth v Barker in discussing the matter there. 

Can I take your Honours then to Sullivan and to what we describe as the careful statements in Sullivan of the High Court about how one assesses these issues, because it comes down to whether or not there is an incompatibility between the common law and the legislation.  At paragraph 42 in Sullivan where under the heading “The supposed duty of care” there is an injunction to look carefully to see what the conflicts might be.  In paragraph 50:

Different classes of case give rise to different problems in determining the existence and nature or scope, of a duty of care.

Then their Honours in that case, which was a judgment of the whole Court, say that:

the problems may be bound up with the harm suffered by the plaintiff, as, for example –

whether there was criminal conduct of some third party.  Sometimes it may arise because of the repository of statutory power.  If you go down to about the fifth line:

they may concern the need to preserve the coherence of other legal principles, or of a statutory scheme which governs certain conduct or relationships.  The relevant problem will then become the focus of attention in a judicial evaluation -

and it is that point that we come to and we say that in this particular case there was no proper evaluation of the competing interests.  If we then go to paragraph 55 ‑ ‑ ‑

GAGELER J:   Mr Fleming, perhaps before you move on, how would you articulate the nature and scope of the duty of care on which you rely, the affirmative articulation of it before you get to these competing considerations.

MR FLEMING:   Your Honour, it was the duty to take care in the course of employment, whether that is the result of an employment contract or whether it is simply a common law arrangement and whether or not that duty is impinged upon by a statute such as we have in Queensland in respect of the dismissal of termination of employment or the retention of employment. 

BELL J:   You formulate it in terms of a duty to take care in the course of employment and, on one view, one can look at the clear duty that is imposed on employers to take care to ensure that workers do not suffer injury in the course of carrying out their employment so the duty in terms of a duty to provide a safe system of work and the like.  That is to be distinguished on one view from the notion of a duty arising out of the relationship of employer and employee in the context, amongst other things, of termination of that.

MR FLEMING:   Yes, your Honour.

BELL J:   Now, it seems to me that the formulation that you provided in response to Justice Gageler’s question might be thought to slightly elide that.

MR FLEMING:   Might be?

BELL J:   Might be thought to elide that distinction.  What is embraced by your expression “course of employment”, does it include all the incidents of employment including termination?

MR FLEMING:   Yes, your Honour.  We say that termination is but an incident of the employment.  Hayes v Queensland is an interesting study into that because while Hayes was a support case or a lack of support case in the course of investigations, nevertheless ‑ ‑ ‑

GORDON J:   Well, it was really a lack of support at work while an investigation was going on.

MR FLEMING:   Yes, your Honour, and in the course of that, because of the lack of support, the allegation was that harm was done.  Now, in Hayes they did not succeed, but nevertheless the Queensland Court of Appeal embraced that concept.  Now, we say that this is in the course of an investigation where a positive act was done – that is, the two letters were sent.  That is simply the flip side of the coin in Hayes.  When there is an investigation happening, in our submission, there remains an obligation for the employer to still exercise his or her or its duty of care in the course of that investigation.

GORDON J:   So can I just unpack that a bit, if I may?  In the notice of appeal that was filed in this Court which appears in the book ‑ ‑ ‑

MR FLEMING:   Yes, your Honour.

GORDON J:   ‑ ‑ ‑I had understood that the duty that you sought to have imposed was a duty of care not to send the two particular letters.

MR FLEMING:   That is so, your Honour.

GORDON J:   Now, is that the duty you seek to have imposed as a positive duty, or how does it sit with what you have just put to us about in the course of employment?

MR FLEMING:   We say they had a positive duty not to cause the harm and the harm was caused by the sending of those two letters.

EDELMAN J:   Does it come down to this, that it is common ground, as I understand it, that there was a power to conduct the investigation that is implied into the contract?

MR FLEMING:   Yes, your Honour; there can be no argument about that.

EDELMAN J:   You essentially say that the duty that accompanies that power is a duty to do that reasonably and by “reasonably” it is a duty to do it in such a manner as not to cause reasonably foreseeable harm to the claimant.

MR FLEMING:   Yes, your Honour.

EDELMAN J:   The duty not to send the letters is just the particular context of that duty not to exercise the power in a manner which could reasonably foreseeably cause harm.

MR FLEMING:   Yes, your Honour.

BELL J:   One difficulty with the way the duty is expressed in the notice of appeal in terms of a duty of care not to send the appellant the letters of 4 and 11 December is that it collapses considerations of duty and breach.  If you have a duty not to send letters on 4 and 11 December, when you send them you breach the duty.  The duty cannot be surely expressed in the terms that it is framed in in the notice of appeal?

MR FLEMING:   Yes.  I think my learned junior expressed it in a way - that is clumsy.

NETTLE J:   You just put it more broadly here.  You just said it is to take reasonable care in the conduct of an investigation so as not to cause reasonably foreseeable psychological injury ‑ ‑ ‑

MR FLEMING:   Yes, your Honour.

NETTLE J:   Well, the breach is sending the letters.

MR FLEMING:   Yes, the breach is in sending the letters.  Your Honours, the facts are not in dispute in this case.  The first 14 paragraphs are agreed so the fact that they already knew that she was in a fragile state, that is not in issue when that first letter went.  The fact that the second letter was dated 8 December, sent off, she received it somewhat later than that and the alternate version was given to the employer on the 9th – that is, that she was the one who had caused the issue, that had not arisen before that second letter was sent, so at all times the employer knew, first, that the appellant’s version of the facts and, second, that she was in a fragile state and hospitalised, indeed, for a somewhat extended period at that time.

NETTLE J:   Mr Fleming, if you do formulate the duty in the way that you have just articulated, namely, reasonable care in the conduct of investigation so as not to cause reasonably foreseeable psychological injury to the employee, do you not run into conflict with Paige?

MR FLEMING:   Indeed, your Honour, except for this.  It comes down to what the ratio of Paige really is.  Paige was in fact a case where the employment had been terminated and the psychological damage was the result of that and the manner in which the investigation was done.  In this case the employment subsisted for another two years.  She was not terminated in her employment.  In fact, she was on workers compensation for another two years before then.  She ceased employment and went onto a disability pension.

NETTLE J:   Why does that make a difference?

MR FLEMING:   Because, your Honour, one is in the course of investigation and the other one is the direct result of the dismissal – the termination of employment.  That is not our major point.  Our major point is going back to the ratio of Paige.  But it is a point of distinction.

GORDON J:   You accept, do you not, as part of the statutory framework as I understood the concession about the obligation of the employee to respond to a request from an employer about events that have occurred in the course of conduct, whether that is from Associated Dominion or otherwise – I understood that your acceptance about the ability to stand down the employee on full pay came from the Industrial Relations Act.

MR FLEMING:   Yes.

GORDON J:   That is, there is a statutory power for the employer under the Industrial Relations Act to stand down this employee.

MR FLEMING:   The concession does not go that far and what my learned junior has just told me is that it was in their view just a provision that they could do that in the contract of employment.  There can be no argument that they had a right to pursue the investigation and also the right perhaps to stand her down – or to stand her down.  Your Honours, can we turn to Paige?

GORDON J:   The provision I was having regard to is section 98, which is permissible for an employer to stand an employee down.

MR FLEMING:   Well, we cannot say ‑ section 98, your Honours.

GORDON J:   The reason why I ask this is that we are trying to work out the statutory context and framework in which this duty that you contend for is to be fixed and part of that, it picks up as I understand it, as you accept, the Industrial Relations Act and the ability to dismiss people, of which of course the investigation is part.

MR FLEMING:   We must accept that that exists, and the events that happen fit what the Act says.

GORDON J:   I understand.

EDELMAN J:   Does section 98 contain any implied obligation to act reasonably in standing down an employee on either of those bases?

MR FLEMING:   Not on its face, your Honour, or obviously if it is implied it will not necessarily be on its face, but the whole point about it is that if it is not implied there, it still remains part of the duty of care in respect of the employment.  We say that the Act does not address such matters at all.  The Act does not intervene any more than is absolutely necessary, for example, an investigation, and then the remedies under the Act which are early on in the provisions enable somebody to be terminated; there is an entitlement to claim for wrongful determination – wrongful termination.  So the Act really only addresses just the incidents of employment.

EDELMAN J:   But even if those incidents of employment were potentially to cut across the duty in this case, would one not need to ask what the meaning of section 98 is, and if for example whether in section 98(2) the power of the employer to stand down an employee without pay contains an implied obligation on the employer not to do so without reasonable cause or in an unreasonable manner?

MR FLEMING:   No, and we would argue, your Honour, that that must be the case because the industrial relations legislation is all about the fairness as between the employer and the employee and the remedies right through the whole life of the employment and every aspect of the employment.  Notably though, it says nothing about the common law duties.  The statutory regime, we submit, does not affect the common law regime at all anywhere. 

GORDON J:   Can I just ask – I want to raise one other section of the Act just to test that proposition.  If you go to section 77, it sets out a non‑exhaustive list of the sorts of matters that might be taken into account as part of the contention that dismissal was “harsh, unjust or unreasonable” ‑ ‑ ‑

MR FLEMING:   Yes.

GORDON J:   ‑ ‑ ‑ and that would seem to include aspects of what will be described as the investigation process.  For example, paragraph (c)(ii) more than anything else, that is an ability whether or not the employee:

was given an opportunity to respond to the allegation –

Does that affect the contention you have just put to us?

MR FLEMING:   Your Honour, we would have to concede that the fact there can be a remedy for unreasonable – harsh, unjust or unreasonable termination of employment suggests that there will be employers who do not exercise the right properly and perhaps do not exercise the duty of care.  But the specific provision that your Honour then referred me to was – I am sorry, I lost it in that exchange.

GORDON J:   That is 77(c)(ii).  It was just to test your proposition that this Act had nothing to do with the investigation process.

MR FLEMING:   Yes.

GORDON J:   It seems as though the Act is specifically directed at dealing at least with one aspect of that in the context of the unfair dismissal laws.

MR FLEMING:   Yes.  Your Honour, we would have to say yes to what your Honour is saying, because that would be in fact subject to something that arose in Paige, the right to be heard and so on, whether that is a different proposition to the duty of care to not hurt – not damage the plaintiff.  Your Honour certainly is right because it would be an obligation to give an employee an opportunity to be heard.  However, note that these are in the context of termination of employment – unreasonable termination of employment.  We never got to that point in this case.

BELL J:   But how does that avail you - the measures which are the subject of complaint, on one view at least, were issued in the course of an investigation that had as its possible terminus termination of the employment relation.

MR FLEMING:   Yes.

BELL J:   The fact that that did not happen surely does not bear on the question of whether the law is to impose a duty of the kind that you contend for in the context of a scheme governed by statute respecting the circumstances in which an employer may lawfully terminate that relationship.

MR FLEMING:   Your Honour, we have to make the distinction nevertheless that the relationship was not terminated, for whatever reason, but we acknowledge what your Honour says, that this is in the scheme which is part of the process to getting to the point of termination. 

BELL J:   Mr Fleming, at appeal book, 397, paragraph [98] in the reasons of the primary judge, reference is made to the evidence of Ms Evans from which it would appear that the first of the letters was one that Ms Evans said she had been instructed by the respondent’s human resources department to send ‑ ‑ ‑

MR FLEMING:   Yes.

BELL J:   ‑ ‑ ‑ and it adopted the wording in a policy which appears to have been an exhibit at the trial.  Is that in evidence on the appeal?

MR FLEMING:   There are gaps in the evidence at the trial.  The policy was not in evidence at the trial either.

BELL J:   I see.

MR FLEMING:   But the letter itself is then summarised in paragraph [99].

BELL J:   The letter, I think, is in evidence. 

MR FLEMING:   Yes, the letter is in evidence.  Part of the second letter is in evidence ‑ ‑ ‑

GORDON J:   We are missing the second page, I think.

MR FLEMING:   The second page is missing.  Our learned friends have, I think, copies that they have handed up on that.  There is no doubt that the possibility of termination of employment was mentioned in that second letter, no doubt at all.

BELL J:   Yes, and the first letter seems to have gone out in accord with some form of pro forma which conformed with a policy, that being an internal policy of the respondent.  Is that the position?

MR FLEMING:   That would appear to be the position.  My learned junior tells me that the policy is mentioned in the second letter, not in the first letter, but it is ‑ ‑ ‑

BELL J:   I understood it - I am taking it really from the primary judge’s description of Ms Evans’ evidence. 

MR FLEMING:   Page 346 is the first letter itself, your Honours.

BELL J:   Yes, I appreciate there is no reference to the policy in the first letter.  It is to paragraph [98] of the primary judge’s reasons that I am directing attention.

MR FLEMING:   Yes.

BELL J:   The evidence of Ms Evans is there summarised.  His Honour records that she was aware of the respondent’s human resources department’s policy “to resolve matters quickly” and that she had used wording she was instructed to use by the department.  I suppose that does not in turn suggest that the letter conformed with the policy, but ‑ ‑ ‑

MR FLEMING:   No.  It would able to suggest that an employer such as this did not have pro formas and the like by which they conducted their business. 
The evidence was scant in respect of that, though.

BELL J:  Yes. 

MR FLEMING:   It is to be gleaned from there, and then the second letter is dealt with by the learned trial judge at page 400, [115] ‑ ‑ ‑

NETTLE J:   Mr Fleming, the duty for which you contend extended to require an employer to take reasonable care in formulating questions in interrogating an employee about an incident so as not to cause reasonably foreseeable psychological injury. 

MR FLEMING:   Yes, your Honour.  Investigations are done in many ways and often times investigators will be sent out for example.  We would – yes, we would say yes to your Honour’s question.

EDELMAN J:   Can I just ask you an even more basic point.  You opened your submissions by reference to both contract and tort and the pleading refers to both contract and tort. 

MR FLEMING:   Yes.

EDELMAN J:   The judgments of the trial judge in the Court of Appeal just speak of a duty of care without explaining whether the duty of care is one that is sourced as an implied contractual obligation to exercise the power reasonably or whether it is a tortious obligation.  Do you put it on both aspects or on both bases? 

MR FLEMING:   We put it on both bases in our pleading, your Honour, so we would have to say yes, that was the position.

EDELMAN J:   In relation to the contract basis, then, how are we or how were the courts below supposed to determine the extent or nature of the implied duty in contract without the contract as an exhibit?

MR FLEMING:   Your Honour, we accept what your Honour says and probably there was no capacity to do so.  In the initial pleading – if necessary, I can take you to the particular pleadings – but it was pleaded in contract and in tort.  There was a general denial about that, which seemed to be more a denial about the actual duties rather than the fact that it was in contract or in tort.  Contract and tort is repeated another couple of times in the statement of claim but it is not dealt with at all in the defence and the only mention of a contract in the trial judge’s reasons was scant, that she started work under a contract of employment on a particular day and the contract of employment terminated some couple of years later.  They are the only mentions of contract at all.

BELL J:   May we take it that reflects the way the matter was conducted before the primary judge?

MR FLEMING:   Your Honour must take it that that is the way it was conducted.

EDELMAN J:   The contract question before us, then, essentially comes down to whether or not there is an implied obligation to exercise power that is common ground in a reasonable way so as to avoid psychological injury to the appellant?

MR FLEMING:   Yes, your Honour.

NETTLE J:   Does that mean you accept that there must be an implied contractual term to that effect in order for you to succeed?

MR FLEMING:   No, because we still can succeed on the tortious duty of care, yes.

NETTLE J:   Common law duty of care.  Although it would be strange – perhaps it would not, but it seems odd, would it not, that there would be a common law duty of care of that kind and yet it would not be an implied obligation of the contract at the same time?  And vice versa, if it is not an implied obligation of the contract it seems less than obvious that it would be a common law duty of care.

MR FLEMING:   Yes, your Honour.  Your Honours, that realm of Barker and the like – we had no intention of going there in respect of those duties that might have been implied in Barker.

GORDON J:   The difficulty we have got here, is it not, is that we do not have the contract.  We have not got the policy that is said to inform the conduct of the respondent.  But we have a sort of, in effect, an agreed basis between you that there is – whatever the contract said, there is to be this implied term.  I just find it difficult.  I understand that we have got the Industrial Relations Act; that provides some statutory framework, but it is trying to work out what the rest of the playing field is with some sort of certainty.

MR FLEMING:   That might be difficult to do in contract, your Honour, but not necessarily in tort.

GORDON J:   Would one sit there and say, especially when you look at Paige and look at Chief Justice Spigelman’s judgment – one does not look at the tort in terms of the duty and scope without understanding what the contractual framework is.

MR FLEMING:   Or the legislative framework, your Honour.

GORDON J:   And both, because they both will impact upon each other.

EDELMAN J:   Put another way, on one view the contractual obligation and the tortious obligation are both rooted in the same concept of an assumed responsibility, but the assumed responsibility will be shaped by the terms of the contract.

MR FLEMING:   Certainly they will be shaped by the terms of the contract, your Honour, but the duty outside of contracts still remains the tortious duty.

BELL J:   Mr Fleming, in circumstances in which the matter was conducted below without the contract being proved and appears to have been agitated before the primary judge purely in terms of the duty, notwithstanding the form of the pleading ‑ ‑ ‑

MR FLEMING:   Yes.

BELL J:   ‑ ‑ ‑ one might question that it presents as a suitable vehicle in which to consider the broader question that was the subject of the grant of special leave.

MR FLEMING:   Your Honour, we would still urge that it can be considered in the legislative and tortious context.

GAGELER J:   The difficulty is, if we are concerned with questions of compatibility and coherence, it is almost impossible conceptually to separate the tortious context from the broader legal context.

MR FLEMING:   Obviously your Honour is perfectly right because that is the whole issue, is it not, where they perhaps are incompatible, so one must analyse it in that context.

GAGELER J:   So we are asking is this duty incompatible with stuff we just do not know about?

MR FLEMING:   We do know about the legislation, your Honour, and the legislation we say is legislation that is leading to the termination of employment.

GORDON J:   The other way of looking at it is in effect just to take your first proposition and say, all right, there must be a symbiotic relationship between the legislation, common law, whether in contract or tort, which is your opening proposition, which is what we are asking about.

MR FLEMING:   Yes.

GORDON J:   Is it the position that here we could only answer that question in part because we could only look at the legislative framework without reference to the contract?

MR FLEMING:   Yes, your Honour, that must be the case.

BELL J:   I think you accepted in answer to a question asked by Justice Edelman that the duty for which you contend you accept would be moulded in some respects by the terms of the contract.

MR FLEMING:   Yes, your Honour.  Yes, we would have to accept that.

BELL J:   Yes.  Is there anything further you want to put, Mr Fleming, on why this is a suitable vehicle in which to address the issue that is raised?

MR FLEMING:   No, your Honour.

BELL J:   Yes, the Court will adjourn briefly to consider the future conduct of the matter.

AT 10.35 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.45 AM:

BELL J:   The contract of employment is not in evidence.  In the course of the hearing, its centrality to the determination of the issues on which special leave to appeal was granted has emerged.  It follows that the proceeding is not a suitable occasion on which to determine those issues.  Special leave is revoked.  Do you seek costs, Mr Douglas?

MR DOUGLAS:   I have instructions to seek costs, your Honour.

BELL J:   Yes.  Mr Fleming?

MR FLEMING:   We say nothing about that, your Honour.

BELL J:   With costs.  Would you adjourn the Court until 9.45 am on Tuesday, 17 April for the pronouncement of orders and otherwise to 10.15 am.

AT 10.46 AM THE MATTER WAS ADJOURNED