Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 8)

[2024] FedCFamC2G 779

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Haley v Laing O’Rourke Australia Management Services Pty Ltd (No 8) [2024] FedCFamC2G 779

File number(s):

SYG 2432 of 2020

Judgment of:

JUDGE MANOUSARIDIS

Date of judgment:

23 August 2024

Catchwords:

INDUSTRIAL LAW – Assessment of damages for wrongful termination of contract and compensation under s 545(2)(b) of the Fair Work Act 2009 (Cth) (FW Act) for losses suffered because of contravention of s 340(1) of the FW Act – whether employer who wrongfully summarily dismissed employee would have lawfully terminated the employment contract but for the wrongful summary dismissal – damages and compensation awarded on the basis that the employer would have retained the employee discounted to take into account contingencies.

Legislation:

Competition and Consumer Act 2010 (Cth) Sch 2, s 236(1)

Fair Work Act 2009 (Cth) ss 117(2), 340(1), 539(1), 543, 545(2)(b), 547(2)

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 211

Cases cited:

Addis v Gramophone Co Ltd [1909] AC 488
Australian Battery Distributors Pty Ltd v Robert Bosch (Australia) Pty Ltd (No 3) [2017] FCA 707
Australian Licenced Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd [2011] FCA 333
Bartlett v ANZ Banking Group Ltd [2014] NSWSC 1662
Bartlett v Australia & New Zealand Banking Group Ltd [2016] NSWCA 30
Baxter v Obacelo Pty Ltd [2001] HCA 66
Berry v CCL Secure Pty Ltd [2020] HCA 27
Bovaird v Frost [2009] NSWSC 337
Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17
Cockburn v Alexander [1848] EngR 1009; (1848) 6 CB 791; 136 E.R. 1459
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64,
Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd [2016] FCA 1032
Dafallah v Fair Work Commission [2014] FCA 328
Fair Work Ombudsman v University of Melbourne [2024] FCA 330
Gunton v Richmond-Upon-Thames London Borough Council [1981] 1 Ch 448
Hadley v Baxendale [1854] EngR 296; (1854) 9 Exch 341
Haines v Bendall (1991) 172 CLR 60
Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 5) [2024] FedCFamC2G 286
Hamilton v Open Window Bakery Ltd [2004] SCC 9
Janos v Chama Motors Pty Ltd [2011] NSWCA 238
Jones v Queensland Tertiary Admissions Centre Ltd [2009] FCA 1382
Kipriotis v Royal Tiles Pty Ltd [2008] NSWSC 871
Lavarack v Woods Colchester Ltd [1967] 1 Q.B. 278
Leggett v Hawkesbury Race Club Limited (No 4) [2022] FCA 622
Lewis v Australian Capital Territory [2020] HCA 26
MacDonald v Australian Wool Innovation Ltd [2005] FCA 105
Mackenzie v AA Ltd [2022] ICR 1362
Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638
Maredelanto Compania Naviera SA v Bergbau-Handel GmbH; The Mihalis Angelos [1971] 1 QB 164
Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120
McVicar v Commissioner for Railways (NSW) (1951) 83 CLR 521
Norcast S.ár.L v Bradken Limited (No 2) [2013] FCA 235
Paciocco v Australia and New Zealand Banking Group Limited [2016] HCA 28
Paras v Public Service Body Head of the Department of Infrastructure [2006] FCA 622
Purkess v Crittenden (1965) 114 CLR 164
Quashie v Stringfellow Restaurants Ltd [2012] EWCA Civ 1735
RailPro Services Pty Ltd v Flavel [2015] FCA 504
Rankin v Marine Power International Pty Ltd [2001] VSC 150
Re Bostik (Australia) Pty Ltd v Gorgevski [1992] FCA 209
Robinson v Harman [1848] EngR 135; (1848) 1 Exch 850; 154 ER 363
Robinson v Robinson [1851] EngR 994; (1851) 1 De G M & G 247; 42 E.R. 547
Russell v The Trustees of the Roman Catholic Church for the Archdioceses of Sydney [2008] NSWCA 217
Ryder v Foley (1906) 4 CLR 422
Tasmania Development and Resources v Martin [2000] FCA 414
TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130
Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402
Transport Workers’ Union of Australia v K&S Freighters Pty Ltd [2010] FCA 1225
W Emmens, Secretary, etc-Plaintiff in Error; E M Elderton,-Defendant in Error [1853] EngR 884; (1852-53) 4 HLC 624; 10 ER 606
Willis Australia Group Services Pty Ltd v Mitchell-Innes [2015] NSWCA 381

Division:

Fair Work

Number of paragraphs:

188

Date of last submission/s:

5 July 2024

Date of hearing:

27 and 28 June 2024

Place:

Sydney

The Applicant:

Appeared in person, by video

Counsel for the Respondent:

Mr K Brotherson

Solicitor for the Respondent:

Mills Oakley Lawyers

ORDERS

SYG 2432 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

THOMAS HALEY

Applicant

AND:

LAING O'ROURKE AUSTRALIA MANAGEMENT SERVICES PTY LTD

Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	23 AUGUST 2024

THE COURT ORDERS THAT:

1.In relation to the loss and damage the applicant suffered as a consequence of the respondent’s repudiation of contract identified in declaration 1 of the declarations made on 28 March 2024, there be judgment for the applicant in the sum of $1,354,651.34.

2.Pursuant to s 545(2)(b) and s 547(2) of the Fair Work Act 2009 (Cth) (FW Act), the respondent pay to the applicant $1,515,782.87, being compensation for the loss the applicant suffered as a consequence of the respondent’s contravention of s 340(1) of the FW Act identified in declaration 2 of the declarations made on 28 March 2024, together with interest on that compensation.

3.Any payment by the respondent on account of the judgment referred to in order 1 or on account of the order for compensation and interest referred to in order 2 shall be taken to discharge both the judgment and the order for compensation and interest to the extent of the payment.

4.The parties have liberty to apply to relist the matter on the question of penalties if the current order staying the proceeding to the extent the applicant claims an order for the payment of pecuniary penalties is lifted.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

INTRODUCTION	[1]
STATEMENT OF PARTIES’ CASES	[4]
BREACH OF CONTRACT CLAIM	[8]
Principles	[8]
Purpose of an award of damages for breach of contract	[8]
Identification of term employer fails to perform for wrongful dismissal	[11]
Causation and the “but for test”	[15]
Relevance to assessment of damages of legal right to terminate contract on notice	[22]
Assumed lawful termination approach	[23]
The approach in TCN Channel 9	[29]
Application of TCN Channel 9 to employment contracts - Willis	[35]
Application of TCN Channel 9 to employment contracts – Bartlett	[41]
Whether employer would have lawfully terminated employment contract an issue to be determined on the balance of probabilities	[45]
Onus of proof	[47]
Difficulties in assessing damages	[58]
Mr Haley’s claims, submissions, and evidence	[59]
Loss of income up to 5 April 2022	[60]
Loss of income after 5 April 2022	[65]
Loss of opportunity	[70]
Inability to obtain commensurate alternative employment	[72]
Incidental losses	[76]
Other claims	[77]
LOA’s submissions	[78]
Questions arising	[82]
Would LOA have given three months’ notice in any event?	[83]
Question to be determined by reference to evidence, not assumption	[84]
LOA’s submissions	[88]
LOA's submissions ignore finding that Mr Chatwin was not the decision maker	[97]
LOA's submissions ignore finding of non-satisfaction of good faith	[98]
Would Mr O'Rourke in any event have decided to terminate the Employment Contract on notice?	[100]
The scenario posited by counsel for LOA	[105]
Conclusion	[105]
Would LOA have continued its engagement of Mr Haley as an employee but for the wrongful dismissal?	[106]
Period for which LOA would have continued employing Mr Haley	[107]
LOA's oral submissions	[107]
Determination	[112]
Assessing lost income	[119]
What Mr Haley would have earned had he remained with LOA	[120]
What Mr Haley earned and may earn	[121]
Assessment of damages for lost income	[129]
Inability to find commensurate alternative employment	[131]
Other claimed losses	[133]
Incidental losses	[134]
Bushfire allowance	[135]
Removal costs	[137]
Break fees	[140]
Legal fees and court costs	[143]
545 CLAIM	[144]
Statutory provisions and principles	[144]
“Because of”	[147]
“Loss”	[154]
“Compensation for loss”	[160]
Claim for compensation for lost income	[161]
LOA’s submissions	[161]
Assessing economic loss	[165]
Claim for compensation for pain, suffering, humiliation, and embarrassment	[170]
Incidental losses	[174]
OTHER CLAIMS	[177]
INTEREST	[178]
SUBSECTION 117(2)	[183]
SUMMARY OF DAMAGES AND COMPENSATION	[185]
DISPOSITION	[186]

REASONS FOR JUDGMENT

INTRODUCTION

1. On 28 March 2024 I published reasons for judgment (earlier reasons) on the basis of which I made declarations which include the following:[1]

   1.By purporting on 24 July 2020 to summarily dismiss the applicant from his employment, the respondent repudiated its obligations under the contract of employment the respondent made with the applicant on or about 25 July 2018.

   2.By purporting on 24 July 2020 to summarily dismiss the applicant from his employment, the respondent contravened s 340(1) of the Fair Work Act 2009 (Cth) (FW Act).

   [1] Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 5) [2024] FedCFamC2G 286

2. I also ordered that the parties file and serve written submissions on whether it is open to the applicant, Mr Haley, to claim the respondent (LOA) contravened s 117(2) of the FW Act, and on damages and compensation. The parties filed written submissions and, on 27 and 28 June 2024, I heard oral submissions.

3. In these reasons for judgment, which assume familiarity with the earlier reasons, I consider what loss and damage Mr Haley suffered because of LOA’s repudiation of Mr Haley’s employment contract (breach of contract claim) and because of LOA’s contravention (545 claim) of s 340(1) of the Fair Work Act 2009 (Cth) (FW Act), and what damages and compensation should be awarded to Mr Haley for such loss and damage. I also consider whether it is open to Mr Haley to claim LOA contravened s 117(2) of the FW Act.

   STATEMENT OF PARTIES’ CASES

4. LOA submits that Mr Haley’s loss and damage consists of his not having been given the three months’ notice of termination provided for by his contract of employment (Employment Contract), and that Mr Haley’s damages, and compensation under s 545 of the FW Act, therefore, should be assessed in an amount that reflects three months of his salary. This submission is premised on a contention of fact, namely, that LOA would in any event have given Mr Haley three months’ notice of its intention to terminate the Employment Contract.

5. Mr Haley, on the other hand, claims that, but for LOA’s wrongful termination of the Employment Contract and LOA’s contravention of s 340(1) of the FW Act, Mr Haley would have remained an employee of LOA until at least 2034 and, moreover, would have been promoted to more senior positions than the position he occupied at the time LOA wrongfully dismissed him on 24 July 2020. In what appears to be a distinct claim, Mr Haley also claims he suffered damage by the very act of his summary dismissal, which was based on assertions of dishonesty, that damage being his inability to obtain employment he would otherwise have been able to obtain, given his experience and qualifications.

6. In large part Mr Haley relies on his having been continuously employed for 17 years in the United Kingdom and Hong Kong by companies within the group of companies of which LOA is a member (LO Group companies), during which his career prospered, and progressed to the point where, in early 2018, LOA induced Mr Haley to accept an offer to work for LOA in Australia for an annual salary of $415,000, and agreed to pay Mr Haley’s costs of moving himself and his family from the United Kingdom to Australia. Mr Haley also relies on performance reviews LOA undertook which, Mr Haley submits, show LOA assessed Mr Haley as an exemplary employee with good prospects of advancement. LOA does not dispute Mr Haley’s contention that, before 2 July 2020, his 17 years of employment with LO Group Companies was unblemished; and it has not adduced any evidence, and otherwise did not cross-examine Mr Haley about the favourable assessment LOA gave of his performance and future prospects as an employee.

7. I will consider Mr Haley’s breach of contract claim separately from his 545 claim because, as will appear later, the heads of compensable loss, and the principles for assessing damages and compensation, differ or may differ according to whether the loss and damage is claimed to have arisen because of a breach of the Employment Contract, or because of a contravention of s 340(1) of the FW Act. Further, the declaration that LOA had contravened s 340(1) of the FW Act carries with it as a fact that LOA summarily dismissed Mr Haley from his employment because he exercised a workplace right. LOA’s contention that it would have in any event terminated the Employment Contract by giving three months’ notice will need to be assessed by reference to that fact.

   BREACH OF CONTRACT CLAIM

   Principles

   Purpose of an award of damages for breach of contract

8. The starting point is to identify the purpose for which the remedy of damages is awarded for breach of contract;[2] and Parke B classically stated the purpose in Robinson v Harman:[3]

   The rule of the common law is, that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed.

   [2] Note the distinction between the remedy, namely, “damages”, and that for which the remedy of damages is awarded, namely, loss or “damage”: see Paciocco v Australia and New Zealand Banking Group Limited [2016] HCA 28 (Keane J): “To speak of damage, as opposed to damages, is to speak of the loss caused by the breach, not the remedy which might be awarded by a court”.

   [3] Robinson v Harman [1848] EngR 135; (1848) 1 Exch 850; 154 ER 363, at page 35

9. Although not expressly stated, the loss “by reason of a breach of contract” to which this passage refers is the loss to the innocent party that arises from the failure by the party in breach to perform his or her obligations under the contract. At the very least, that includes the innocent party’s not receiving the benefit he or she would have received had the party in breach performed his or her obligations under the contract (bargained for benefit). It may also include losses that “arise naturally from the breach or as may be supposed to have been in the contemplation of the parties, at the time they made their contract, as the probable result of the breach” (Hadley v Baxendale Losses).[4]

   [4] Hadley v Baxendale [1854] EngR 296; (1854) 9 Exch 341, at page 355; 156 E.R 145, at page 151

10. Thus, in every case where the remedy of damages is claimed for breach of contract, it is necessary to identify the bargained for benefit, that is, the obligation or obligations under the contract the party in breach was bound, but failed, to perform.

    Identification of term employer fails to perform for wrongful dismissal

11. The next step is to identify the contractual obligation an employer fails to perform when he or she has wrongfully dismissed an employee. The obligation was authoritatively identified in 1853 in the opinions judges of the common law courts gave in answer to a question from the House of Lords in Emmens v Elderton.[5] The question was whether a count in a declaration sufficiently alleged a consideration for the promise to retain and employ the plaintiff as attorney and solicitor for one year. That required the judges to consider the nature of the obligation that arose on the defendant’s retaining the solicitor for one year. Crompton J said:[6]

    [W]herever there is a contract for hiring or employment on the one part, and service for wages or salary on the other, for a specified time, there is an engagement on the part of the employer to keep the employed in the relation in question during that time, and not merely to pay him the wages for the services at the end . . .

    [5] W Emmens, Secretary, etc-Plaintiff in Error; E M Elderton,-Defendant in Error [1853] EngR 884; (1852-53) 4 HLC 624; 10 ER 606

    [6] W Emmens, Secretary, etc-Plaintiff in Error; E M Elderton,-Defendant in Error [1853] EngR 884; (1852-53) 4 HLC 624; 10 ER 606, at page 614

12. Baron Parke said:[7]

    I think that there is clearly implied on the part of the person who contracts to pay a salary for services for a term, a contract to permit those services to be performed, in order that the stipulated reward may be earned, besides an agreement to pay the salary at the end of the term.

    [7] W Emmens, Secretary, etc-Plaintiff in Error; E M Elderton,-Defendant in Error [1853] EngR 884; (1852-53) 4 HLC 624; 10 ER 606, at page 623

13. Where a contract of employment is terminable on notice (three months under the Employment Contract), the contract will be treated as a contract for an indefinite duration, and “one of the obligations will be to keep the relationship in place until it is lawfully severed, usually by termination on notice”.[8]

    [8] Quashie v Stringfellow Restaurants Ltd [2012] EWCA Civ 1735, at [10] (Elias LJ)

14. Thus, the “foundation of [a claim for] wrongful dismissal is the wrongful refusal to retain [the employee] in the service”;[9] and an action for wrongful dismissal is “an action to enforce, by the recovery of damages, a right to the continuance of [the] employment”.[10] The measure of damages, therefore, for wrongful dismissal is the amount, so far as money can do it, that will place the employee in the position he or she would have been in had the employer continued the employment contract for the period provided for by the contract. At the very least that would include an amount that would reflect the wages or salary the employee would have received for the term of the contract;[11] it could also include additional damages for Hadley v Baxendale Losses, such as the loss of a chance of obtaining a benefit that would have accrued to the employee had the employer not wrongfully terminated the employment contract.[12]

    [9] Ryder v Foley (1906) 4 CLR 422, at page 436 (Griffith CJ)

    [10] McVicar v Commissioner for Railways (NSW) (1951) 83 CLR 521, at page 528 (Dixon, Williams, Fullagar, and Kitto JJ)

    [11] This would be subject to any wages or salary the employee was or would have been paid from alternative employment the employee obtained or ought reasonably to have obtained after the wrongful termination of the contract.

    [12] See, for example, Tasmania Development and Resources v Martin [2000] FCA 414; MacDonald v Australian Wool Innovation Ltd [2005] FCA 105

    Causation and the “but for test”

15. Where a party to a contract claims that he or she suffered loss because of the other party’s breach, the innocent party bears the onus of identifying and proving the loss, and proving that the loss was caused by the breach of contract. “Causation”, in this context, denotes the presence of “a link between a physical event and a physical outcome”.[13] Where an employee claims damages for wrongful termination of the employment contract, the relevant event is the wrongful termination of the contract, and the relevant outcome is the employee’s not receiving wages, together with any Hadley v Baxendale Losses the employee claims he suffered as a consequence of the employer’s wrongfully terminating the employment contract.

    [13] Lewis v Australian Capital Territory [2020] HCA 26, at [151] (Edelman J)

1. Whether a causal link between a relevant event and outcome is present in any given case usually turns on the application of the “but for test” or the “counterfactual approach”. Edelman J, in Lewis v Australian Capital Territory, described that test or approach as follows:[14]

   [T]he test for causation of loss asks whether the wrongful act was necessary for the loss. The “but for” or counterfactual approach “directs us to change one thing at a time and see if the outcome changes”. The change is the removal of the wrongful act. If the loss would lawfully have occurred but for the wrongful act then the wrongful act was not necessary for the loss. The counterfactual approach thus involves a hypothetical question where no other fact or circumstance is changed other than those which constituted the wrongful act.

   [14] Lewis v Australian Capital Territory [2020] HCA 26, at [178] (footnotes omitted)

2. His Honour does not expressly identify the facts or circumstances that are to remain unchanged when the wrongful act is changed for the purpose of determining what would have occurred, but for the wrongful act; but it is clear that the facts and circumstances that remain unchanged would at the very least include the facts and circumstances as found by the court. The but for test requires the court to remove the wrongful act the court has found occurred and consider what would have occurred had the wrongful act not occurred, given the findings of fact the court has made and the presence of any other evidence the court has accepted.

3. For example, where a court has concluded that the employer wrongfully terminated a contract of employment purportedly because the employee lied, but the court finds the termination was not justified because the court was not satisfied, on the balance of probabilities, that the employee lied, the question what the employer would have done had the employer not terminated the employment contract is to be determined by reference to a set of circumstances that would include the court’s not being satisfied that the employee lied; that is, on the assumption that the employee did not lie. It may be there are other facts the court finds, or there is evidence on the basis the court has accepted or will accept on which it is open to the court to find, that the employer would have in any event terminated the contract of employment; but whether the employer would have done so would be assessed on the basis that the employee did not lie.

4. What I say in the preceding paragraph reflects the approach courts take when assessing damages based on the hypothesis that an act the court finds was unlawful would not have occurred. That is illustrated by the judgments in Malec v J C Hutton Proprietary Limited.[15] In that case the plaintiff proved on the balance of probabilities that he had contracted conditions due to the defendant’s negligence that rendered him unemployable. A majority of the Full Court of the Supreme Court of Queensland, however, found it was “likely” that, independently of the defendant’s negligence, the plaintiff would have become unemployable. The High Court held the Full Court erred in equating a more than 50% probability that the plaintiff would in any event have become unemployable as a finding that as a certainty the plaintiff would have been unemployable. The High Court held that it was necessary to assess the actual probability of the plaintiff’s becoming unemployable independently of the defendant’s negligence. That was so because of the principles set out in the following passage from the judgment of Deane, Gaudron, and McHugh JJ:[16]

   When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. . . . Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. . . . The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place.

   [15] Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638

   [16] Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638, at pages 642-643

5. Also relevant is the following passage from the judgment of Brennan CJ and Dawson J:[17]

   The fact that the plaintiff did not work is a matter of history, and facts of that kind are ascertained for the purposes of civil litigation on the balance of probabilities: if the court attains the required degree of satisfaction as to the occurrence of an historical fact, that fact is accepted as having occurred. By contrast, earning capacity can be assessed only upon the hypothesis that the plaintiff had not been tortiously injured: what would he have been able to earn if he had not been tortiously injured? To answer that question, the court must speculate to some extent. As the hypothesis is false - for the plaintiff has been injured - the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history. Hypothetical situations of the past are analogous to future possibilities: in one case the court must form an estimate of the likelihood that the hypothetical situation would have occurred, in the other the court must form an estimate of the likelihood that the possibility will occur. Both are to be distinguished from events which are alleged to have actually occurred in the past.

   [17] Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638, at pages 639-670

6. These passages show that the hypothetical circumstances that are posited by the but for test are to be assessed by reference to past events (including proof of loss, where loss is an element of the cause of action itself[18]) which the court has found, on the balance of probabilities, to have occurred, or by reference to alleged events the court is not satisfied on the balance of probabilities have occurred, and therefore on the basis that the events occurred or did not occur as a matter of certainty. These passages also show that where damages are to be assessed by considering whether certain hypothetical events would have occurred in the past or will occur in the future, the task of the court is not to determine whether, on the balance of probabilities, the events would have occurred or will occur; the task is to estimate the probabilities of the hypothetical events occurring or not occurring, and assess damages on the basis of the probabilities the court assigns to the happening or non-happening of the hypothetical events.

   [18] “[W]here the fact of injury or loss is part of the cause of action or wrong, it must be proved on the balance of probability. Compensation is generally awarded for loss or damage actually caused or incurred, not potential or likely damage: - Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120, at [28]

   Relevance to assessment of damages of legal right to terminate contract on notice

7. One hypothetical set of circumstances that has been considered relevant in determining the loss an employee has suffered because of the employer’s wrongful termination of the employment contract arises out of the availability to the employer of an express or implied right under the contract of employment to lawfully terminate the contract by giving notice provided for by the contract. The question that potentially arises in those circumstances is whether the employer would in any event have lawfully terminated the contract of employment by giving notice under the contract. If that question is answered in the affirmative, damages for wrongful termination of the employment contract will be assessed by reference to the employee being denied the benefits of the contract of employment for the period of the notice of termination required by the contract.

   Assumed lawful termination approach

8. One approach where the employer could have terminated the employment contract lawfully by giving notice has been to assess damages on the assumption that the employer would have so lawfully terminated the contract of employment (assumed lawful termination approach). The basis of that approach is what has been referred to as the “least burdensome performance principle”,[19] and sometimes as the “Mihalis Angelos principle”.[20] The least burdensome performance principle has been viewed[21] to have its modern roots in Cockburn v Alexander,[22] where Maule J said:[23]

   . . . . the question, upon a breach of the contract is, what is the condition in which the plaintiffs would be if the defendant had performed the contract. Generally speaking, where there are several ways in which the contract might be performed, that mode is adopted which is the least profitable to the plaintiff, and the least burthensome to the defendant.

   [19] See, for example, Transport Workers’ Union of Australia v K&S Freighters Pty Ltd [2010] FCA 1225, at [176]

   [20] Being a reference to Maredelanto Compania Naviera SA v Bergbau-Handel GmbH; The Mihalis Angelos [1971] 1 QB 164

   [21] See Hamilton v Open Window Bakery Ltd [2004] SCC 9, at [11]

   [22] Cockburn v Alexander [1848] EngR 1009; (1848) 6 CB 791; 136 E.R. 1459

   [23] Cockburn v Alexander [1848] EngR 1009; (1848) 6 CB 791; 136 E.R. 1459, at pages 1468-1469

9. The principle, however, was authoritatively stated by Lord Cranworth in Robinson v Robinson:[24]

   Where a man is bound by covenants to do one of two things, and does neither, there in an action by the covenantee, the measure of damage is in general the loss arising by reason of the covenantor having failed to do that which is least, not that which is most, beneficial to the covenantee: and the same principle may be applied by analogy to the case of a trustee failing to invest in either of the two modes equally lawful by the terms of the trust.

   [24] Robinson v Robinson [1851] EngR 994; (1851) 1 De G M & G 247; 42 E.R. 547, at pages 550, 551

10. The least burdensome performance principle has been applied to contracts of employment. For example, in Gunton v Richmond-Upon-Thames London Borough Council, Buckley LJ said:[25]

    Where a servant is wrongfully dismissed, he is entitled, subject to mitigation, to damages equivalent to the wages he would have earned under the contract from the date of dismissal to the end of the contract. The date when the contract would have come to an end, however, must be ascertained on the assumption that the employer would have exercised any power he may have had to bring the contract to an end in the way most beneficial to himself, that is to say, that he would have determined the contract at the earliest date at which he could properly do so: see McGregor on Damages, 13th ed. (1972), paras 884, 886 and 888.

    [25] Gunton v Richmond-Upon-Thames London Borough Council [1981] 1 Ch 448, at page 469

11. Bean LJ recently reviewed the English authorities in Mackenzie v AA Ltd;[26] and the headnote to the report correctly reflects his Lordship’s statement of the effect of the authorities, and his Lordship’s decision on the facts in that case:

    [W]here a contract of employment provided for alternative methods of termination, rather than just imposing a single obligation that could be performed in a range of ways, the employer was entitled to adopt the least burdensome mode of termination of the contract; that, given that the claimant’s contract provided for its termination in one of three ways and clearly gave the employer, in the absence of gross misconduct, the right to choose between requiring the claimant to work out his notice or immediately dismissing him with payment in lieu of notice, it followed that that principle applied.

    [26] Mackenzie v AA Ltd [2022] ICR 1362 (Popplewell and Stuart-Smith LJJ agreeing)

12. The assumed lawful termination approach has also been approved in Australia. In Re Bostik (Australia) Pty Ltd v Gorgevski, Sheppard and Heery JJ said:[27]

    The contract in question is a contract of employment which is terminable by either party on giving to the other the applicable period of notice provided for in the award. Where an employee is wrongfully dismissed, he is entitled, subject to mitigation, to damages equivalent to the wages he would have earned under the contract from the date of the dismissal to the end of the contract. The date when the contract would have come to an end, however, must be ascertained on the assumption that the employer would have exercised any power he may have had to bring the contract to an end in the way most beneficial to himself; that is to say, that he would have determined the contract at the earliest date at which he could properly do so; see Gunton v. Richmond-upon-Thames London Borough Council (1981) l Ch 448 per Buckley L.J. at 469. Buckley L.J. there referred to McGregor on Damages, 13th ed. (1972), paras. 884, 886 and 888. We refer also to the current edition of McGregor (15th ed. (1988), para. 1171). We also refer to Chitty on Contracts, Vol. 11, 25th ed. (1983) para. 3522; 26th ed. (1989) paras 4014 and 4015.

    [27] Re Bostik (Australia) Pty Ltd v Gorgevski [1992] FCA 209, at [54].

13. Although approved in Australia, the assumed lawful termination approach does not represent the approach Australian courts have taken to the assessment of damages for wrongful termination of a contract (including the wrongful termination of a contract of employment) where the party in breach has the right to terminate the contract by notice; and that is because courts in Australia have applied the “least burdensome performance principle”, not as an assumption that must be made when assessing damages for breach of contract, but as a principle on the basis of which an inference may be drawn from the term of the contract which provides for the right to terminate the contract, but which nevertheless is subject to evidence which may give rise to competing inferences. The foundation authority for this approach in Australia is the judgment of Hope JA in TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd.[28]

    [28] TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130 (Meagher JA agreeing, and Priestley JA agreeing fully with Hope JA’s reasons and substantially with his reasons)

    The approach in TCN Channel 9

14. In TCN Channel 9 the defendant (TCN) repudiated a contract in circumstances where TCN had a legal right to perform the contract in two alternative ways, one of which was by giving three months’ notice. A question arose “whether the mere existence of this contractual right in [TCN] operates automatically to restrict the damages that can be awarded to the [plaintiff], or whether regard can be had to the facts”.[29] Hope JA concluded:

    that the true principle does allow, indeed require, that regard be had to the facts, although of course the rights and obligations flowing from the contract are the starting point of the matter.

    [29] TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130, at page 154F

15. In support of this conclusion Hope JA referred to the following passage from the judgment of Diplock LJ in Lavarack v Woods of Colchester Ltd,[30] and Hope JA made two observations in relation to these passages. The first is as follows:[31]

    The events extraneous to the contract, upon the occurrence of which the legal obligations of the defendant to the plaintiff thereunder are dependent, may include events which are within the control of the defendant: for instance, his continuing to carry on business even though he has not assumed by his contract a direct legal obligation to the plaintiff to do so. Where this is so, one must not assume that he will cut off his nose to spite his face and so control these events as to reduce his legal obligations to the plaintiff by incurring greater loss in other respects. That would not be the mode of performing the contract which is “the least burthensome to the defendant”.

    [30] Lavarack v Woods Colchester Ltd [1967] 1 Q.B. 278

    [31] Lavarack v Woods Colchester Ltd [1967] 1 Q.B. 278, at pages 295-296, quoted in TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130, at page 155A

16. Hope JA applied this passage to the facts before him, and found that the evidence showed that the least burdensome method for performance would not have been to terminate the contract, and any desire to affect the termination was improbable. Hope JA also referred to other passages from the judgment of Diplock LJ in Lavarack, and noted that Diplock LJ “did not regard the [least burdensome performance] principle as precluding the facts which had occurred up to trial from being taken into account”.[32] Finally, Hope JA identified the question that should be addressed, and the approach that should be taken in determining that question, when considering the application of the least burdensome performance principle to the assessment of damages:[33]

    In some cases, the evidence may be silent as to whether the defendant would have exercised the option apparently favourable to himself; in other cases, although not silent, the evidence may not justify a finding that the defendant would not have exercised it. In these cases it can be said that it is a natural inference from the terms of the contract that the defendant would have exercised that option which in terms benefits him: cf Evans Marshall & Co Ltd v Bertola SA [1975] 2 Lloyd's Rep 373 at 390 per Buckley LJ. It is not a natural inference when the facts point to the opposite conclusion.

    In my opinion, consistently with the many authorities which establish that regard can be had to evidence of facts between the time when a cause of action arises and the time of trial in order to produce certainty where there would otherwise be uncertainty, the general preference of the law for fact rather than hypothesis is applicable to the principle under consideration. That principle does not require the assessment of damages to be based on a fiction in disregard of the actual facts.

    [32] TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130, at page 155G

    [33] TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130, at page 156B-C

17. The rule that may be derived from TCN Channel 9 is that, where a party in breach of contract has a right under that contract which, if exercised, would reduce the damages he or she would otherwise be liable to pay for his or her breach of the contract, then, unless the innocent party can prove that the party in breach would not have exercised the right, the natural inference that is to be drawn from the terms of the contract is that the party in breach would have exercised his or her contractual right.

18. Justices of the High Court have referred to TCN Channel 9 with approval in the course of stating the principles that should be applied when assessing damages where the party who had wrongfully terminated a contract could have lawfully terminated the contract pursuant to a term of the contract. Thus, in Commonwealth v Amann Aviation Pty Ltd, Mason CJ and Dawson J said (emphasis added):[34]

    Where compensation is sought in respect of the deprivation of a possible benefit which is dependent upon the unrestricted volition of another it may be impossible to say that any assessable loss results from the breach. However, this statement must be understood in the light of the principle that the mere existence of a contractual right in a party to terminate does not operate automatically to restrict the damages that can be awarded. The court does not reach a conclusion by reference to an improbable factual hypothesis. The court must have regard to the facts and evaluate the possible exercise of the right in all the relevant circumstances of the case. Moreover, in determining what is or would be beneficial for the defendant, the court does not confine its attention to the relationship between the plaintiff and the defendant; it would be wrong to reduce the defendant's legal obligations to the plaintiff on the footing that he or she would incur greater loss in other respects.

    [34] Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64, at page 93. As authority for the proposition stated in the emphasised portion their Honours cited Hope JA’s judgment in TCN Channel Nine, at page 154. See also at page 143 where Toohey J referred to the award of damages in TCN Channel 9 being “unaffected by the contractual right in the defendant to terminate” the contract.

1. In Berry v CCL Secure Pty Ltd, the plurality (Bell, Keane, and Nettle JJ) said:[35]

   More generally, if there are two or more ways in which a wrongdoer could lawfully have performed a contract which is rescinded for anticipatory breach, it is to be assumed that, but for rescission, the wrongdoer would have adopted the mode of performance most beneficial to the wrongdoer. And so, if the contract was lawfully terminable at the instance of the wrongdoer, it must be valued accordingly and, subject to the evidence, not as if it were bound to continue.

   So to say, however, does not mean that the mere existence of the wrongdoer's right to terminate the contract operates automatically to restrict the damages that can be awarded. The question is whether, absent rescission, the wrongdoer would have terminated the contract. And to decide that requires the court to have regard to all the facts and circumstances of the case, including events extraneous to the contract that were within the control of the wrongdoer, such as the need to retain third party custom.

   Application of TCN Channel 9 to employment contracts - Willis

   [35] Berry v CCL Secure Pty Ltd [2020] HCA 27, at [37], [38]. In the footnote to the first sentence of the second paragraph of this passage, the plurality refer to Amann Aviation and to TCN Channel 9.

2. TCN Channel 9 has been applied to employment contracts; and here it will be necessary to refer to two judgments of Macfarlan JA sitting in the Court of Appeal of the Supreme Court of New South Wales (Court of Appeal) on which LOA particularly relies. The first is his Honour’s judgment in Willis Australia Group Services Pty Ltd v Mitchell-Innes.

3. In Willis the employer, through its chairman and chief executive officer, summarily dismissed the employee for serious misconduct, the misconduct being his acting in an unprofessional manner on the employer’s premises and in public by being intoxicated. The primary judge and the Court of Appeal found that the employee’s conduct did not warrant summary dismissal. The employer, however, was entitled to terminate the contract of employment in any event on giving six months’ notice. The question was whether the damages should be awarded on the basis that the employer would have in any event exercised its right to terminate the contract by giving six months’ notice. The primary judge assessed damages on the basis there was a 60% chance of remaining for a further eight months in employment before the employer would exercise its right to terminate the contract.

4. In the Court of Appeal Macfarlan JA proceeded on the basis that TCN Channel 9 applied to contracts of employment; and his Honour explained the effect of TCN Channel 9 as follows:[36]

   In TCN Channel Nine Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130 the question arose as to whether the damages payable by a party to a contract for its repudiation of the contract should automatically be restricted by that party’s lawful right to terminate. In other words, if a party had a right to terminate a contract without cause on, for example, six months’ notice but wrongfully purported to terminate the contract immediately, should the damages payable by it be limited to the six month period for which the party was contractually obliged to keep the contract on foot? In that case, Hope JA (with whom Priestley and Meagher JJA relevant[ly] agreed) held that there was no such automatic restriction, that the Court was not obliged to assess damages by reference to “an improbable factual hypothesis” and that regard therefore needed to be had to the facts of each case to determine whether the repudiating party, if it had not repudiated, would have exercised its lawful right of termination (at 154). . . . .

   [36] Willis Australia Group Services Pty Ltd v Mitchell-Innes [2015] NSWCA 381, at [117] (Ward and Leeming JJA agreeing).

5. Macfarlan JA also said that in Amann Mason CJ and Dawson J (in the passage I quoted above) approved that approach,[37] and his Honour identified later cases that adopted it.[38]

   [37] Willis Australia Group Services Pty Ltd v Mitchell-Innes [2015] NSWCA 381, at [118]

   [38] Willis Australia Group Services Pty Ltd v Mitchell-Innes [2015] NSWCA 381, at [120]

6. Macfarlan JA said that the application of TCN Channel 9 required the court to “determine as a matter of probability whether, but for the wrongful summary dismissal, [the employer] would have given the [employee] six months’ notice of termination and if, so, when”. The determination of that question, in turn, required the court:[39]

   to postulate a situation in which all the facts remained as they occurred but [the employer] formed the view that, or was advised that, it was not entitled to summarily terminate the [employee’s] employment. This does not mean that the [employee’s] conduct should be ignored or that [the employer] should be taken to have adopted a more benign approach to it.

   [39] Willis Australia Group Services Pty Ltd v Mitchell-Innes [2015] NSWCA 381, at [122] (emphasis added).

7. His Honour concluded as follows (emphasis added):[40]

   If this approach is taken, it is to my mind clear, at least on the balance of probabilities, that [the employer] would have given immediate notice of termination. Its adverse view of the [employee’s] conduct would have been unchanged but it would have known that it could not summarily terminate the [employee’s] employment. There is no apparent reason why it would not have given effect to its adverse view of that conduct by dismissing him on notice. The evidence that [the employer] had on several occasions evinced a desire to “get rid of” the [employee] confirms the likelihood of this occurring. It is true . . . that [the employer] had not given effect to this desire prior to the Sales 2.0 conference but the [employee’s] misconduct at that conference provided him with the opportunity to do so, and the excuse for doing so. It is not necessary . . . to conclude that there is a presumption in such a situation that such a contractual power would be exercised. It is sufficient to consider the issue as a matter of fact and regard the probability of [the employer] exercising its right to give six months’ notice of termination as a “natural inference” in the circumstances (see TCN Channel Nine v Hayden Enterprises quoted at [117] above).

   Application of TCN Channel 9 to employment contracts – Bartlett

   [40] Willis Australia Group Services Pty Ltd v Mitchell-Innes [2015] NSWCA 381, at [123] (emphasis added).

8. The second judgment of Macfarlan JA on which LOA relies is the judgment his Honour gave in Bartlett v Australia & New Zealand Banking Group Ltd,[41] the facts of which LOA, in its written submissions, submits  “are apposite to this case”.[42] In Bartlett the employer engaged a Mr McGowan to conduct an investigation according to the procedures provided for by the employer’s “Performance Improvement & Unacceptable Behaviour Policy” into whether an employee had amended a copy of a confidential email and posted it to a journalist. In the course of his investigation Mr McGowan commissioned a forensic document and handwriting examiner to determine whether certain handwriting was that of the employee. The examiner concluded it was highly probable that the handwriting in question was the employee’s. Mr McGowan concluded his investigation by producing a report in which he concluded there was sufficient circumstantial evidence to show the employee was responsible for the media leak, as a consequence of which the employee breached the employer’s code of conduct and ethics; and the report was provided to Mr Corbally, who “was the decision-maker at the [employer] who was responsible for deciding what would be done as a result of the investigation”.[43]

   [41] Bartlett v Australia & New Zealand Banking Group Ltd [2016] NSWCA 30

   [42] Respondent’s Submissions on Damages and Compensation, at [18]

   [43] Bartlett v ANZ Banking Group Ltd [2014] NSWSC 1662, at [36]

9. The employee and his solicitor met with Mr Corbally and another officer of the employer. The employee answered two questions Mr Corbally asked of him; and, on the primary judge’s findings, Mr Corbally concluded that the employee lied to him in responding to both questions, and Mr Corbally no longer felt that he could trust the employee. After a break in the meeting Mr Corbally informed the employee that his employment with the employer was terminated without notice for serious misconduct. The employer’s confirmatory letter gave the reason for termination as the employer’s findings that the employee doctored the confidential email and posted it anonymously to the journalist.[44]

   [44] Bartlett v Australia & New Zealand Banking Group Ltd [2016] NSWCA 30, at [19]

10. The primary judge found that, on its proper construction, the term of the contract of employment that entitled the employer to summarily dismiss the employee depended on no more than the employer forming the opinion that the employee had engaged in misconduct and the employee held such opinion. The primary judge, however, went on to consider whether the employee did in fact doctor the email; and the primary judge answered that question in the affirmative and, for that reason, concluded the employer was entitled to summarily dismiss the employee. The primary judge also considered, however, whether, assuming the employer was not entitled to summarily dismiss the employee, the employer would have terminated the contract by giving four months’ notice as provided for by the contract. The primary judge concluded that had the purported summary dismissal not occurred, the employer would have terminated the employee’s employment by giving him four months’ notice:[45]

    184 In light of the evidence of Mr Corbally and Mr Law I am satisfied that, after the meeting of 15 August 2012, there was no real prospect of the plaintiff remaining as an employee of the ANZ. I accept Mr Corbally’s evidence set out above that once he felt that he could no longer trust the plaintiff or have confidence in his word, the employment relationship was, effectively, unworkable, whatever the plaintiff's skills and capacities in other areas. I also accept Mr Corbally’s evidence in the following exchange in cross-examination:

    Q. . . . if it was that on an examination of the original, Ms Novotny adhered to her view, and another handwriting expert was of the view that the conclusion was inconclusive as to whether the author of the questioned document was the same as the author of the specimen handwriting, you wouldn't have terminated, would you?

    A. No, I disagree, given the handwriting report that I had received from - from our own forensic examiner, given the investigation work that was undertaken and the report, and given the discussions that I had with Mr Bartlett, I'd lost trust and confidence in Mr Bartlett and he would have been terminated.

    Q. That would have been a decision based upon the coincidence of which particular handwriting expert you preferred, wouldn't it?

    A. We - we had an independent - as I understood it, it was an independent handwriting expert who was - I was led to believe was one of the best in the country, and she had provided us with an opinion, and the opinion said that it was highly probable that it was Paul.”

    [45] Bartlett v Australia & New Zealand Banking Group Ltd [2016] NSWCA 30, at [80]

11. The Court of Appeal found the employer was not entitled to summarily dismiss the employee. In those circumstances, the employee submitted to the Court of Appeal that the employee would have continued working for the employer for 10 years; and when assessing that submission, the effect of the handwriting report and the investigation report “must be eliminated”. Macfarlan JA did not accept that submission:[46]

    I do not agree that this is the correct approach. The hypothetical circumstance to be considered is one in which the Bank did not purport to dismiss [the employee] summarily. No other fact or circumstance should be assumed to be changed. Accordingly, the relevant hypothetical situation was one in which the [employer’s] investigation occurred and Mr Corbally received and considered the investigation report but realised, or was advised, that Clause 14.3(b) did not in the circumstances authorise summary termination. In particular, there is no warrant for assuming, contrary to the facts, that the investigation did not occur. For a variety of reasons, but principally the doctored email issue, Mr Corbally wanted the [employer] to terminate [the employee’s] employment. The Court should not assume, contrary to his actual opinion, that Mr Corbally did not believe that [the employee] was guilty of serious misconduct. The fact that the [employer] has subsequently failed to prove that he was guilty of serious misconduct does not change the fact that Mr Corbally believed he was.

    In these circumstances, [the employee’s] history with the [employer] is not of significance as it can be assumed to have been known to Mr Corbally, yet it did not cause him to stay his hand on [the employee’s] summary dismissal. Further, the fact that Mr Corbally may have been wrong in the adverse views he took of [the employee’s] answers to him concerning the training course investigation and his contact with the Commonwealth Bank (see [19] above) does not matter. For better or for worse, Mr Corbally held those opinions.

    Unless the Bank was obliged to act reasonably (a question to which I will come shortly), it is to my mind clear that the evidence justified the primary judge’s conclusion that, if the Bank had not purported to dismiss Mr Bartlett summarily, it would have terminated his employment immediately by giving him four months’ pay. Once it is accepted that the only difference between the actual and hypothetical circumstances is the absence of a purported summary dismissal in the latter (presumably because the Bank realised or was advised that it had no contractual power to effect such a dismissal) the conclusion is inevitable.

    Whether employer would have lawfully terminated employment contract an issue to be determined on the balance of probabilities

    [46] Bartlett v Australia & New Zealand Banking Group Ltd [2016] NSWCA 30, at [83], [85]

12. The question whether, but for the employer’s having wrongfully terminated the employment contract, the employer would nevertheless have lawfully terminated it by giving notice, is a hypothetical question that would be predicated on the assumption, contrary to the facts found, that the employer did not (wrongfully) terminate the contract. Given the principles discussed in Malec, it should follow that a court would need to estimate the probabilities of the hypothetical event, namely, the employer lawfully terminating the contract by notice, having had occurred and discount the damages that would otherwise be assessed for the employer’s wrongful termination by what the court estimates is the probability of the employer’s lawfully terminating the contract. That, however, is not the approach in TCN Channel 9, or in Willis, or in Bartlett. In each of these cases, the question whether the party in breach would have in any event lawfully terminated the contract was treated as an issue that was to be determined on the balance of probabilities; that is, by applying the civil standard of proof; and that damages would be assessed, either on the basis the employer would have terminated the employment contract by giving notice, or it would not have terminated the employment contract by giving notice.

13. Given the approach in TCN Channel 9, Willis, and Bartlett, I will proceed on the basis that the question whether, but for the employer’s wrongful termination of the employment contract, the employer would have lawfully terminated the employment contract by giving notice, is an issue that is to be determined by the application of the civil standard of proof. I will also proceed on the basis, however, that if that issue is determined adversely to the employer, the period for which the contract of employment will have remained or will remain on foot is to be assessed by reference to the probabilities of the events relevant to the determination of that question occurring.

    Onus of proof

14. Hope JA’s judgment in TCN Channel 9 proceeded on the basis that it is the innocent party who bears the onus of proving that the party in breach would not in any event have lawfully terminated the contract with notice. In both Willis and in Bartlett, however, Macfarlan JA assumed that the onus was on the employer to show that, but for the summary dismissal, the employer would have exercised his or her contractual right to terminate the contract by giving notice.

15. Justices of the High Court, in two recent cases, have explored principles that govern the allocation of the evidentiary and legal burdens of proof when assessing damages in circumstances where a party to a contract has a right to terminate the contract by notice. The first is Berry v CCL Secure Pty Ltd.[47]

    [47] Berry v CCL Secure Pty Ltd [2020] HCA 27

16. In Berry the contravening party to a contract, by misleading or deceptive conduct, induced the innocent party to sign a document terminating an agency agreement the innocent party (and his company) had with the contravening party. The innocent and contravening parties each had the right under the agency agreement to terminate it before 30 June 2008. The innocent party claimed as damages the amount of commissions he would have earned had the agency agreement continued until June 2010 on the basis that the agency would have been automatically renewed until then. The contravening party successfully contended before the Full Federal Court that damages should be assessed on the basis that the contravening party would in any event have lawfully terminated the agency agreement with effect from 30 June 2008, on the basis that there was “no reason to assume in the counterfactual that [the contravening party] would not have acted to terminate the agency agreement at the time when that agreement would otherwise have been automatically renewed”.[48] The High Court reversed the Full Federal Court’s finding, holding that damages should be assessed on the basis that the agency agreement would have been automatically renewed on 30 June 2008, and the contravening party would not have lawfully terminated it before 30 June 2010.

    [48] Berry v CCL Secure Pty Ltd [2020] HCA 27, at [73]

17. The plurality held that, “although a claimant bears the burden of proof in the sense of the ultimate burden of establishing its case on the balance of probabilities, the burden of proof in the sense of introducing evidence is liable to shift constantly “according as one scale of  evidence or the other preponderates””;[49] and the evidentiary burden in Berry shifted because it had been established on the balance of probabilities that the contravening party “chose to achieve a certain result by means of a calculated deceit”, and the “natural inference is that the wrongdoer was not and would not have been prepared to bring about the result by lawful means”.[50] In those circumstances, the evidentiary onus shifted to the contravening party to adduce evidence sufficient to establish that, if the contravening party had not acted as it did, it would have been prepared to bring about the same result by lawful means; and in the absence of such evidence, it was fair to infer that there was not a realistic possibility of that occurring.[51]

    [49] Berry v CCL Secure Pty Ltd [2020] HCA 27, at [39]. The quoted passage is from Purkess v Crittenden (1965) 114 CLR 164, at page 168.

    [50] Berry v CCL Secure Pty Ltd [2020] HCA 27, at [39]

    [51] Berry v CCL Secure Pty Ltd [2020] HCA 27, at [39]

18. Gageler J (as his Honour then was) and Edelman J applied a different approach; and there are two aspects of their Honours’ reasons for judgment that are to be noted. The first is that their Honours were of the view that the fact the agency agreement contained a provision for its automatic renewal by itself was sufficient to discharge the burden the innocent party had to bear that the agency agreement would have continued in existence; and that the mere existence of contractual rights to terminate the agency agreement “was insufficient to displace the inference that the Agency Agreement would have continued in existence which arose from the provision of its automatic renewal”.[52] That had the consequence that the “practical burden of introducing evidence to show on the balance of probabilities that the Agency Agreement would have been terminated through the affirmative exercise of a contractual right to terminate fell to [S]”.[53]

    [52] Berry v CCL Secure Pty Ltd [2020] HCA 27, at [69]

    [53] Berry v CCL Secure Pty Ltd [2020] HCA 27, at [69]

1. The second aspect of their Honours’ reasons is their having noted that the contravening party, by its pleaded defence, “sought to shoulder [the] practical burden by proving that it would have terminated the Agency Agreement no later than 30 June 2008”.[54] Having pleaded by its defence that it would have lawfully terminated the agency agreement, the contravening party assumed the burden of proving that was the case, and, moreover, constituted the only counterfactual on which the contravening party could rely. The consequence of that is that if, as occurred in Berry, the contravening party failed to prove the counterfactual it pleaded in its defence, the issue raised in the contravening party’s defence is “left devoid of evidential foundation”, and the primary judge’s rejection of the evidence on which the contravening party relies “ought to have been the end of the issue”.[55]

   [54] Berry v CCL Secure Pty Ltd [2020] HCA 27, at [70]

   [55] Berry v CCL Secure Pty Ltd [2020] HCA 27, at [71]

2. The second case in which the High Court considered the onus of proof in assessing damages is Cessnock City Council v 123 259 932 Pty Ltd.[56] The case concerned the circumstances in which party A to a contract may recover as damages for breach of contract by party B the amounts party A expended in reliance on party B performing its obligations under the contract. The question was whether party A carried the onus of proving that, had party B performed its obligations, party A would have recovered amounts that would have enabled it to recoup the expenditure it incurred, or whether the onus lay on party B to prove that party A would not have recovered amounts that would have enabled it to recoup the expenditure it incurred. That led the Justices to address principles relating to the allocation of the legal and evidentiary burdens of proof. It will be sufficient if I refer only to the reasons of the plurality.

   [56] Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17

3. The plurality noted that the “legal onus to prove loss arising from a breach of contract falls upon a plaintiff”, but further noted that “in some circumstances the common law facilitates its discharge”.[57] The plurality referred to the common law facilitation of proof as the “principle of assistance of proof”, or as the “facilitation principles”.[58] After noting that the “precise description of this principle of facilitation of proof by a plaintiff has varied in cases”,[59] the plurality said:[60]

   Whatever the description of the principle, its essence is that it facilitates the discharge of the plaintiff’s legal onus of proof of loss in circumstances where the defendant’s wrongdoing has resulted in uncertainty regarding the quantum of loss. This facilitation principle operates where uncertainty arises from the defendant’s breach and is capable of coexisting with other principles concerning facilitation of proof that might assist either the plaintiff or the defendant, such as the principle in Blatch v Archer that “all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted”.

   [57] Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17, [127]

   [58] Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17, [127]

   [59] Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17, [128]

   [60] Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17, [129]

4. The plurality referred to the judgments in Amann, and noted the following (footnotes omitted):[61]

   Each member of the majority relied upon the uncertainty resulting from the acts of a wrongdoer as a reason in favour of the facilitation of the discharge of the plaintiff’s legal onus of proving loss. That facilitation took the form of treating the loss as equivalent to the amount of wasted expenditure incurred in anticipation of, or reliance on, the performance of the obligation that was breached. . . .

   Each member of the majority justified their approach by reference to the reasoning in L Albert & Son v Armstrong Rubber Co, with Mason CJ and Dawson J, and Brennan J, quoting from Chief Judge Learned Hand to the effect that in situations of uncertainty resulting from wrongful acts “it is a common expedient, and a just one … to put the peril of the answer upon that party who by [their] wrong has made the issue relevant to the rights of the other”. And each member of the majority refused to discount the damages award to account for the possibility of a lawful termination because that possibility was “unlikely to occur” or because even the 20 per cent possibility of termination did not preclude a conclusion that Amann Aviation could have recouped its expenditure.

   [61] Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17, [146], [147]

5. It is unclear from these authorities on whom the evidentiary and legal burdens of proof lies when the “least burdensome performance principle” applies, or potentially applies. The likely answer is that the evidentiary burden will shift or the legal burden would be allocated having regard to the procedural and factual circumstances of the case. It may, however, be tentatively suggested that the authorities would support the following propositions:

   (a)As it will usually be the case that it is the wrongful termination of a contract that gives rise to uncertainty about whether the party in breach would in any event have lawfully terminated the contract, the party in breach must give notice in some way that he or she intends to allege that he or she would have lawfully terminated the contract in any event.

   (b)The party in breach bears the evidentiary onus of adducing or otherwise identifying sufficient evidence to raise as a triable issue whether, but for the unlawful termination, the party in breach would have lawfully terminated the contract.

   (c)If the party in breach has produced or otherwise identifies sufficient evidence to raise as an issue that the party in breach would have lawfully terminated the contract, the party alleging unlawful termination of contract would bear the legal burden of proving that the party in breach would not have decided to lawfully terminate the contract by giving notice.

6. I will proceed on the basis that Mr Haley bears the burden of proving that, but for its wrongful dismissal of Mr Haley’s employment contract, LOA would not have lawfully terminated the Employment Contract by giving him three months’ notice, as LOA claims it would have done.

   Difficulties in assessing damages

7. The final point to note relates to the difficulties that are usually encountered when assessing damages; and I need only refer to the following passage from the judgment of Deane J in Amann:[62]

   The mere fact that damages cannot be assessed without difficulty and uncertainty does not, however, relieve a court from the responsibility of attempting to assess them as best it can. As was pointed out by Dixon and McTiernan JJ in Fink v. Fink, at 143: “Where there has been an actual loss of some sort, the common law does not permit difficulties of estimating the loss in money to defeat the only remedy it provided for breach of contract, an award of damages”.

   [62] Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64, at page 125 (footnotes omitted)

   Mr Haley’s claims, submissions, and evidence

8. In his written submissions Mr Haley identifies a number of heads of damage he claims he suffered because of LOA’s summary dismissal of his employment, and the amounts of damages he claims for each head of damage.

   Loss of income up to 5 April 2022

9. The first head of damage is the income Mr Haley says he lost up to 5 April 2022. It appears Mr Haley has chosen 5 April 2022 because that represents income Mr Haley earned for the years ended 5 April 2021 and 5 April 2022, as disclosed in Her Majesty’s Revenue & Customs Tax Returns for 2021 and 2022 Mr Haley prepared in the United Kingdom.[63] The tax returns disclose Mr Haley earned income of £49,856 for the year ended 5 April 2021 and £49,564 for the year ended 5 April 2022. Mr Haley converted these amounts to AUD91,336.19 and AUD88,218.96 (totalling $179,555.15) at the exchange rates prevailing as at 5 April 2021 and 2022 respectively.[64]

   [63] Exhibit L

   [64] Applicant’s Submissions on s 117(2) of the FW Act, and on Damages and Compensation (Applicant’s Submissions on Compensation), [105]. Mr Haley obtained the exchange rate from Office of National Statistics, UK.

10. Mr Haley claims as damages up to 5 April 2022 an amount that represents the difference between benefits he would have received under the Employment Contract up to 5 April 2022 less the income he earned. Mr Haley submits that, under the Employment Contract, he would have received a monthly salary of $36,753.25. That amount has been calculated on the basis that he would have received an annual salary of $393,900, $25,000 superannuation, and $22,139 “relating to BUPA cover approved in May 2019”.[65]

    [65] Applicant’s Submissions on Compensation, [106]

11. The “BUPA cover” is a reference to insurance premiums LOA agreed it would pay. Mr Haley requested LOA pay these premiums in an email he sent to Ms Kate Whittaker on 9 April 2019. In that email Mr Haley said that Mr Chatwin had referred Mr Haley to Ms Whittaker, and he noted that treatment was being provided in the United Kingdom under “our company BUPA policy”, and LOA (through Mr Chatwin) had agreed that “BUPA cover would be provided in Australia to ensure we could continue the treatment”.[66] In an email sent to Mr Chatwin on 10 April 2019 Ms Whittaker asked that Mr Chatwin confirm that the total costs of the cover would be $11,733.84 per annum, which, with fringe benefits tax, would cost LOA $22,139 per annum. By email sent to Mr Chatwin on 20 May 2019 Mr Cathal O’Rourke approved the request that LOA pay the amount for BUPA coverage.[67]

    [66] Exhibit TH-E4-003 (CB447)

    [67] Exhibit TH-E4-003 (CB444)

12. In his oral submissions counsel for LOA submitted that the BUPA coverage only applied to the time for which Mr Haley would be employed in Australia. Mr Haley, in his submissions filed on 5 July 2024, states that medical cover formed part of his package in the United Kingdom.[68] I make a finding to that effect on the basis of the email Mr Haley sent to Ms Whittaker on 9 April 2018 in which Mr Haley stated that treatment was being provided in the United Kingdom under “our company BUPA policy”.

    [68] Applicant’s Submissions in Reply filed 5 July 2024, [32]

13. It is convenient to note at this point that the value to Mr Haley of the BUPA cover does not equate to the costs to LOA of providing it, because the costs to LOA included fringe benefits tax. The value to Mr Haley of LOA’s paying for the BUPA coverage was the amount of the premium, namely, $11,733.82, whereas the costs to LOA was $22,139. Assuming it is the case that, but for LOA’s wrongful termination, Mr Haley would have received the benefit of the BUPA coverage, the amount of Mr Haley’s loss would be the premium for the BUPA policy Mr Haley himself would have paid; and on the evidence, the value of that loss is to be calculated on the basis of an annual premium of $11,733.82.

    Loss of income after 5 April 2022

14. Mr Haley next submits that it is more likely than not that after 5 April 2022 he would have suffered loss of income, noting it is a matter for submission by the parties, and for the Court to consider a range of possibilities, based on the material before the Court.[69] Mr Haley submits that LOA’s breach of contract and contravening conduct forever altered his career path, it being unlikely he will secure an employment contract with the same benefits and role as Mr Haley had under the employment contract LOA had repudiated.[70] Mr Haley further submits that, but for LOA’s repudiation and contravening conduct, “there was no real possibility that the employment relationship between [Mr Haley and LOA] would end”,[71] and it is more likely than not that Mr Haley’s employment “would have continued for many more years into the future, but for [LOA’s] contraventions”.[72] Mr Haley submits the employment relationship would have continued until he would turn 50 years of age, that is, until 2034. Mr Haley accepts that this submission is hypothetical, but notes that it “arises from the material before the court as there is nothing in the material before the court to say this was not, at the very least, a real possibility”.[73]

    [69] Applicant’s Submissions on Compensation, [110]

    [70] Applicant’s Submissions on Compensation, [112]

    [71] Applicant’s Submissions on Compensation, [116]

    [72] Applicant’s Submissions on Compensation, [118]

    [73] Applicant’s Submissions on Compensation, [121]

15. Mr Haley relies on a number of matters:

    (a)LOA and other companies within the LO Group were Mr Haley’s only employer since he left school, having worked in the United Kingdom, Hong Kong, and in Australia.[74]

    (b)In the course of his employment he acquired tacit knowledge not readily available in the market; and through funding provided in part by the LO Group Mr Haley gained formal qualifications, including a quantity surveyor’s degree, a construction law masters, and a constructing engineers masters. [75]

    (c)Mr Haley was transferred to the LO Group’s Australian hub because, Mr Haley submits, there was a shortage of skills both within LOA and in the market.[76] Mr Haley relies on the message Mr Sheehy sent to Mr Cathal O’Rourke on 19 June 2018 seeking his approval for LOA to have Mr Haley transferred to it, and which refers to Mr John O’Connor “being really pleased with the move also to reinforce the team here”.[77]

    (d)LOA sponsored Mr Haley’s application for a Temporary Skill Shortage (subclass 482) visa from 10 September 2018 to 10 September 2022 (482 Visa);[78] and cl 1 of section 5 of Mr Haley’s contract of employment stated that it “is intended that you join the Company on a Long-Stay Temporary Business visa valid for four (4) years”.[79]

    [74] Applicant’s Submissions on Compensation, [71.a.]

    [75] Applicant’s Submissions on Compensation, [71.a.]

    [76] Applicant’s Submissions on Compensation, [71.b.]

    [77] Applicant’s Submissions on Compensation, [71.b.]. Mr Sheehy’s message is set out in the earlier reasons, at [42].

    [78] A copy of the visa is exhibit TH-E-002 (CB379)

    [79] Exhibit STC1 (CB371)

16. Mr Haley also submits he was a high performing employee with an unblemished and excellent employment record.[80] Mr Haley relies on two performance reviews that LOA undertook in relation to him, one for the year 2018-2019, and one for the year 2019-2020. In the 2018-2019 performance review Mr Chatwin stated the following:[81]

    A solid introduction to the Australian business. Tom has comfortably demonstrated the decision to bring him to Australia and position him in a senior commercial role. Tom’s impact on Darlington is beginning to take hold and it should support our aspirations to close out the project with a significant element of commercial recovery. His relationship with Greg Cook and the senior . . .  team has demonstrated his ability to adopt collaborative but challenging behaviours and support LOR’s best interests. FY20 will provide the opportunity for Tom to become more settled and well known in the Australian business and achieve great outcomes.

    . . . .

    Tom is commercially astute and is displaying a strategic element to the projects he is involved with. He is good to work with and is able to articulate his thoughts and plans with significant clarity. There’s no doubt Tom has the capability to go further in the business and the current fluid structure of the organization should allow him to be provided the challenges he needs to push on. Tom should consider the next GUNS cohort where he would both develop and provide a good challenge to other members of the cohort. I look forward to seeing Tom’s efforts continue in FY20.

    [80] Applicant’s Submissions on Compensation, [71.d.]

    [81] Exhibit TH-E4-209 (CB2293)

17. In the 2019-2020 performance review Mr Chatwin stated the following:[82]

    Tom’s an asset to LORAC and with some fine tuning in a few areas, as well as taking this all to another level in his next opportunity, then I could see Tom heading on a continued pathway. Tom is seeking further discussion in the Commercial Function around this pathway to see him operating at another level in the future.

    Good discussion with Tom. Although only worked together for a few months (and with COVID impact), I have appreciated the level of competence and potential that Tom has within him, and is seen as a senior LORAC commercial lead within the business. Overall, Tom can demonstrate well on the general behaviours that position him in LORAC, whilst spending some time discussing a few scenarios and where there were development opportunities to take forward. Tom lists these to in his adjacent notes and these were around things like awareness around emotions and the energy that can be transmitted when having to deal with difficult clients, situations and other sticky moments. Tom does also have good instinct around his people and their welfare / progress etc

    [82] Exhibit TH-E4-209 (CB2299)

18. Mr Haley also submits that the “evidence shows that the events of the incident would have resulted in a first and final written warning at the worst for [Mr Haley], because this was the outcome for Mr Shane Neely and Mr Shaun Boyle who, unlike [Mr Haley], did not exercise their workplace rights”.[83]

    [83] Applicant’s Submissions on Compensation, at [117.c.]

    Loss of opportunity

19. Mr Haley also claims that, had he remained employed, it is more likely than not that he would have been promoted; and in particular, he would have been promoted when Mr Chatwin were to return to the United Kingdom, which he did in July 2020.[84] Mr Haley relies on:

    (a)the information Mr Sheehy provided to Mr Cathal O’Rourke in his email recommending that Mr Cathal O’Rourke approve Mr Haley’s transfer to LOA,[85] which included the statement that Mr Haley was “a well-established commercial leader in the UK (currently commercial leader for the manufacturing division in the UK)”, and that Mr Haley “would be a highly likely succession option for Simon [Chatwin] in the long run“, and that “John O’Connor is really pleased with the move also to reinforce the team here”;[86]

    (b)Mr Chatwin’s having deposed that Mr Haley “was firmly in my plans for the future leadership structure for the Group”;[87] and

    (c)the performance reviews to which I have already referred.

    [84] Applicant’s Submissions on Compensation, at [131]

    [85] Earlier reasons, at [42]

    [86] Applicant’s Submissions on Compensation, at [129.a.]

    [87] Applicant’s Submissions on Compensation, at [129.b.]

20. Mr Haley submits this would have yielded to him an extra annual income of $250,000 which, had he remained with LOA until 2034 would have earned him an additional $3 million.

    Inability to obtain commensurate alternative employment

21. Mr Haley also claims that LOA’s conduct “both when the contravention occurred and its conduct, thereafter”, made Mr Haley’s attempts to obtain alternative employment “more challenging”.[88] Mr Haley relies on a number of matters, including his inability to obtain “a suitable reference from his only employer since leaving school that would allow him to operate at a level commensurate to that which he benefitted from under the employment contract”.[89]

    [88] Applicant’s Submissions on Compensation, at [72]

    [89] Applicant’s Submissions on Compensation, at [72.a.]

22. Mr Haley described in his affidavit his efforts to obtain employment after LOA had terminated his contract. These consisted of communications with persons in relation to positions with Integrated Project Delivery LLP, John Holland, Kier Construction, and Leighton Asia.[90] On the basis of that evidence, I make findings in terms of the matters to which Mr Haley deposes in paragraph 42 of his affidavit of 26 April 2021(except those matters based on opinion or hearsay).[91]

    [90] Affidavit T Haley 26.04.2021, [42]

    [91] See paragraphs 10, 11, and 12 of [42.a.i.]; paragraphs 2, 3, 4, and 7 of [42.a.ii]; paragraphs 6, 7, and 8 of [42.a.iii]; and paragraphs 7, 8, and 9 of [42.a.iv].

1. Also relevant are the following observations of Dowsett J in Australian Battery Distributors Pty Ltd v Robert Bosch (Australia) Pty Ltd (No 3):[183]

   The words in ss 236 and 237, “because of the conduct”, replaced earlier legislative provisions which provided that the loss or damage must have been inflicted “by” the conduct of another person. The meaning of the earlier legislation was effectively fixed by the decisions of the High Court in Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 and Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494. These cases are regularly cited as applying to the existing causal formula “because of the conduct”. The gist of both cases appears in the joint judgment (McHugh, Hayne and Callinan JJ) in Marks at [38][39] as follows:

   It can be seen, therefore, that both ss 82 and 87 require examination of whether a person has suffered (or, in the case of s 87, is likely to suffer) loss or damage “by conduct of another person” that was engaged in the contravention of one of the identified provisions of the Act. That inquiry is one that seeks to identify a causal connection between the loss or damage that it is alleged has been or is likely to be suffered and the contravening conduct. But once that causal connection is established, there is nothing in s 82 or s 87 (or elsewhere in the Act) which suggests either that the amount that may be recovered under s 82(1), or that the orders that may be made under s 87, should be limited by drawing some analogy with the law of contract, tort or equitable remedies. Indeed, the very fact that ss 82 and 87 may be applied to widely differing contraventions of the Act, some of which can be seen as inviting analogies with torts such as deceit (eg, s 52) or with equity (eg, s 5IAA) but others of which find no ready analogies in the common law or equity, shows that it is wrong to limit the apparently clear words of the Act by reference to one or other of these analogies.

   [183] Australian Battery Distributors Pty Ltd v Robert Bosch (Australia) Pty Ltd (No 3) [2017] FCA 707, at [80]. See also RailPro Services Pty Ltd v Flavel [2015] FCA 504, at [168]

2. These passages apply to s 545(2)(b) of the FW Act.

3. Although the Full Federal Court in the passage from Maritime Union of Australia I reproduce above said that “that involved not an examination of what did happen, but an assessment of what would or might have occurred, but which could no longer occur (because of the contraventions)”, the Full Federal Court is not to be taken to have meant that what in fact occurred is not relevant to assessing damages. What in fact did occur, as found by the Court, is an essential component of determining whether a person suffered loss and if so whether it was caused by the contravening conduct; and that is because whether a person suffered loss is to be determined by comparing the position the person has in fact found himself or herself, given the contravening conduct, with the position the person would or may have been in if the contravening conduct did not occur. In other words, whether there is causal link between the loss a person claims to have suffered and the contravening conduct, as found by the court, is to be determined, at least in most cases, by applying the “but for” test or the “counterfactual test”, as explained by Edelman J in Lewis. The test for causation, for the purpose of s 545(2)(a) of the FW Act, requires that there be removed from the facts as they have been found the conduct that constitutes the contravention of the relevant civil remedy provision, and then ask whether the loss would have occurred but for the contravening conduct.

4. Thus, where s 340(1) of the FW Act is the civil remedy provision that has been contravened, and the relevant contravening conduct that constitutes the contravention is the employer’s terminating an employee’s employment because the employee exercised a workplace right, the Court must remove from the facts the Court has found and ask whether, but for the contravening conduct, the employee would have suffered the loss the employee claims she or he suffered.

   “Loss”

5. The second observation that may be made about s 545(2)(b) of the FW Act relates to the word “loss”; it is not restricted to economic loss. “Loss” includes “pain and suffering”;[184] and hurt and distress.[185] The circumstances in which compensation may be awarded under s 545(2)(b) for hurt and distress were stated by Perry J in RailPro Services Pty Ltd v Flavel:[186]

   There was no issue between the parties that the Court has power to award damages in respect of hurt, distress and humiliation shown to be a direct consequence of a contravention: ALAEA v IASA at 594-596 [442]-[450] (Barker J). Such an award should have regard to confining compensation within reasonable limits: McIlwain v Ramsey Food Packaging Pty Ltd (No 4) [2006] FCA 1302; (2006) 158 IR 181 (McIlwain) at 213-214 [87] (Greenwood J). Consistently with this, something more than the usual element of distress accompanying most terminations must be shown, although the notion of “unusual and exacerbating circumstances” is not necessarily the test: ibid. What is reasonable should take account of the objects of the Act and may include compensation for mental distress or injured feelings caused by a harsh, unjust or unreasonable termination of employment: ibid.

   [184] Leggett v Hawkesbury Race Club Limited (No 4) [2022] FCA 622, at [92]

   [185] Australian Licenced Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd [2011] FCA 333, at [441] – [450]

   [186] RailPro Services Pty Ltd v Flavel [2015] FCA 504, at [176]

6. Further, what constitutes “loss” for the purposes of s 545(2)(b) of the FW Act is to be assessed by reference to the “evident protective purpose of provisions . . . of the FW Act”.[187] Thus, “loss” may include a loss of opportunity to obtain employment, a point the Full Federal Court made in Maritime Union of Australia :[188]

   What such damage or loss is (in the present context) that must be proved on the balance of probability will be governed by an understanding of the statute. Given the evident protective purpose of provisions such as s 792 of the WR Act and s 346 of the FW Act, there would be no sensible statutory purpose in denying a proposition that the damage or loss in relation to prospective employment can be constituted by the loss of an opportunity or chance to be considered for employment as a result of, or because of, the contravention (which then has to be given a value to inform the order for compensation); and there would be no sensible statutory purpose in limiting the compensation to damage or loss proved by reference to the proof of events that would, on the balance of probability, have or have not occurred. Thus, if the relevant contravention by a party has prejudiced a person in prospective employment, it would conform entirely with the statutory purpose to identify the damage or loss by reference to, indeed as, that prejudice. Depending on the circumstances, such prejudice may best be seen as the loss of the chance or opportunity of particular employment.

   [187] Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120, at [30] (Allsop CJ, Mansfield and Siopis JJ)

   [188] Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120, at [30] (Allsop CJ, Mansfield and Siopis JJ)

7. Loss may also include the loss that results from the nature of the contravening conduct itself. Thus, where the contravening conduct is constituted by the termination of a person’s employment, loss, for the purposes of s 545(2)(b), will include any detriment to an employee’s reputation and consequent prospects of obtaining alternative employment that flows from termination. That would be particularly so where the contravening conduct constitutes the termination of a person’s employment on the basis of allegations of serious misconduct. That an employee may suffer such loss as a consequence of a termination based on an unfounded allegation of misconduct has been recognised in a number of cases. For example, in Rankin v Marine Power International Pty Ltd, Gillard J said:[189]

   [189] Rankin v Marine Power International Pty Ltd [2001] VSC 150, at [247]-[249]

   It cannot be denied that summary dismissal will have a detrimental effect upon the employee’s reputation, and in some circumstances, may indeed be a very traumatic event. It may lead to psychological injury. Depending on the allegation, the employee may suffer a stigma which adversely affects his chances of obtaining other employment. 

   In Williams v Printers Trade Services (1984) 7 IR 82, Toohey J at p.85 made reference to the effect of a dismissal, when he said –

   “The question is whether the employer was justified in taking the drastic step of summary dismissal, a step that not only has financial implications for the employee but carries with it a certain obloquy.”

   (Emphasis added).

   In Johnson v Unisys Ltd (2001) 2 WLR 1076 at 1101, Lord Millett referred to the effect of a summary dismissal, when he said –

   “But the common law does not stand still. It is in a state of continuous judicial development in order to reflect the changing perceptions of the community.  Contracts of employment are no longer regarded as purely commercial contracts entered into between free and equal agents. It is generally recognised today that ‘work is one of the defining features of people’s lives’; that ‘loss of one’s job is always a traumatic event’; and that it can be ‘especially devastating’ when dismissal is accompanied by bad faith.”

8. In Paras v Public Service Body Head of the Department of Infrastructure, Young J said:[190]

   The summary dismissal without notice of an employee solicitor is a very grave matter. Necessarily, it will have a detrimental effect on her reputation, and may impose a stigma that adversely affects her future career prospects.

   [190] Paras v Public Service Body Head of the Department of Infrastructure [2006] FCA 622, at [29]

9. Further, it has been recognised that the loss of reputation that may flow from a threatened termination of employment in contravention of s 340(1) of the FW Act is loss in relation to which the Court may give a remedy under s 545 of the FW Act. This occurred in Jones v Queensland Tertiary Admissions Centre Ltd, where Collier J granted an interlocutory injunction restraining an employer from terminating the employment of an employee in potential contravention of s 340(1) of the FW Act on the basis of adverse findings contained in an investigation report. Her Honour granted the injunction on the ground that damages would not be an adequate remedy for the injury the employee would suffer if the employer were to terminate the employee’s employment on the basis of the findings contained in the investigation report. Collier J said:[191]

   Discipline of a chief executive officer for allegedly creating a culture of fear or terror in the workplace, be such discipline in the form of termination of employment or otherwise, is a very serious matter. In my view it is likely that such a course of conduct would have a detrimental effect on Ms Jones’ reputation and impose a stigma which could adversely affect her future career prospects (cf comments of Young J in Paras v Public Service Body Head of the Department of Infrastructure [2006] FCA 622 at [29]).

   [191] Jones v Queensland Tertiary Admissions Centre Ltd [2009] FCA 1382, at [49]

10. Thus loss, for the purposes of s 545(2)(b) of the FW Act, includes any detriment to a person’s reputation and consequent prospects of obtaining alternative employment that flows from a purported termination of the person’s employment that contravenes s 340(1) of the FW Act.

    “Compensation for loss”

11. The final observation that may be made about s 545(2)(b) of the FW Act is that, where the Court is satisfied the applicant has proved loss, and a causal link between that loss and the conduct that constitutes the contravention of the relevant civil remedy provision, the Court is to order “compensation for loss” that is, compensation for “loss that [the] person has suffered because of the contravention”. Here the word “compensation” has the meaning it has under the general law, that is, the process by which the Court assesses “a sum which, so far as money can do, will put” the person who suffered loss because of the contravention “in the same position as he or she would have been in if [the contravention] had not been committed”.[192]

    Claim for compensation for lost income

    [192] Paraphrasing Haines v Bendall (1991) 172 CLR 60, at page 63

    LOA’s submissions

12. LOA submits the Court should apply the same approach to Mr Haley’s employment as Mortimer J (as her Honour then was) applied in Dafallah v Fair Work Commission.[193] In that case (which was not based on an alleged contravention of s 340(1) of the FW Act) Mortimer J assessed compensation in relation to what her Honour found was a “clearly fraught employment relationship”; and her Honour assessed compensation on the basis that it was appropriate “to consider that the employer would have in any event been entitled to exercise any power it had to bring the employment contract lawfully to an end in a way most beneficial to itself”.[194] LOA submits that the amount of compensation for any economic loss Mr Haley may have suffered because of LOA’s contravention of s 340(1) of the FW Act should be limited to an amount that represents 3 months’ salary.

    [193] Dafallah v Fair Work Commission [2014] FCA 328

    [194] Dafallah v Fair Work Commission [2014] FCA 328, at [161]

13. There are a number of observations that may be made about these submissions. First, I have found, for the reasons I have stated above, that I am not only not satisfied that, but for LOA’s wrongful termination of Mr Haley’s employment, LOA would have lawfully terminated the Employment Contract by giving him three months’ notice; I am satisfied that LOA would not have done so, but would have continued to retain Mr Haley in its employment. The same analysis would apply when assessing compensation for economic loss under s 454(2)(b) of the FW Act.

14. Second, LOA’s submissions omit an important fact, namely, the presumed fact that arises from the operation of s 361 of the FW Act. In the earlier reasons I concluded that LOA did not discharge the burden which s 361 of the FW Act cast on it, namely, to prove that LOA did not summarily dismiss Mr Haley’s employment because he exercised his workplace rights, or for reasons that did not include as a substantial and operative factor, Mr Haley’s having exercised his workplace rights.[195] That means that s 361 applied, as a consequence of which it is a fact that LOA summarily dismissed Mr Haley from his employment because he exercised his workplace rights. That is no less a fact because, given the findings I made in the earlier reasons, s 361 presumes it to be a fact.[196] LOA would have to point to some evidence that raises as a triable issue that LOA would have exercised the right to terminate the Employment Contract for reasons that would not have included as a substantial factor the reason for which, by operation of s 361 of the FW Act, LOA is taken to have summarily dismissed Mr Haley from his employment, namely, his exercising workplace rights. Although, as I have noted, LOA identified material on the basis of which it submitted LOA would have in any event elected to lawfully terminate Mr Haley’s contract of employment, LOA made that submission without reference to the presumed fact that LOA terminated Mr Haley’s employment because he exercised a workplace right. I am satisfied there is no material that raises a triable issue that, having summarily dismissed Mr Haley in contravention of s 340(1) of the FW Act because Mr Haley exercised workplace rights, LOA would have in any event lawfully terminated his employment.

    [195] Earlier reasons, [617]

    [196] See Fair Work Ombudsman v University of Melbourne [2024] FCA 330, at [34]-[37]

15. Third, the economic losses for which Mr Haley would be entitled to claim compensation under s 545(2)(b) of the FW Act are not limited, as they are when awarding damages for breach of contract, to the salary he would have earned had he remained an employee of LOA or of any other LO Group company, and for any Handle v Baxendale Losses. As I have noted above, where the contravening conduct consists of dismissal of an employee, loss the employee may suffer because of the manner in which the dismissal occurred may be a head of compensable loss for the purpose of s 545(2)(b) of the FW Act. Mr Haley, in his opening address, submitted he was unable to obtain alternative comparable employment because prospective employers “need[ed] a reference from [Mr Haley’s] former employer”, but, given Mr Haley had only been employed by the one employer for 17 years, the only reference he would be able to obtain from LOA or any other LO Group company is that Mr Haley had been dismissed for serious misconduct.

    Assessing economic loss

16. My assessment of damages for breach of contract may be applied to the assessment of compensation for Mr Haley’s losses under s 545(2)(b) of the FW Act; but that assessment has been made on the assumption that Mr Haley is not entitled, on the basis of the Addis Principle, to damages for losses he claims he suffered because of the manner in which LOA summarily dismissed Mr Haley on the basis of allegations of serious misconduct. As I have already noted, such loss, if proved, is a loss for which a compensation order under s 545(2)(b) may be made.

17. Mr Haley claims he suffered loss in the form of being unable to obtain comparable alternative employment, and that his inability to do so is due to LOA’s having unlawfully terminated his employment on the basis of unfounded allegations of dishonesty. The question is whether this was caused by LOA’s contravention of s 340(1) of the FW Ac; and that question is to be answered in the affirmative.

    (a)First, the contravening conduct was constituted by LOA purporting to summarily dismiss Mr Haley’s employment. This was purportedly done by LOA sending to Mr Haley the Termination Letter. It was LOA’s sending the Termination Letter that constituted the adverse action LOA took in contravention of s 340(1) of the FW Act. The causal consequences of LOA’s contravention of s 340(1), therefore, are to be determined by reference to the Termination Letter.

    (b)Second, the Termination Letter asserted Mr Haley “lied in the investigation to the Investigator” or to Mr Chatwin and Mr Cashin, there being “no other possible explanation”; Mr Haley made “numerous concessions during the show cause meeting” which “served to evidence a pattern of serious misconduct by [Mr Haley] intended to deliberately mislead the Investigator and Laing O’Rourke, which was in turn, intended to obscure the earlier serious misconduct that triggered the investigation”; and Mr Haley made a “false allegation against” another person.[197]

    (c)Third, as I have noted, it has been said that, “[d]epending on the allegation, the employee may suffer a stigma which adversely affects his chances of obtaining other employment”.[198] The assertions of dishonesty conveyed by the Termination Letter, however, did far more than stigmatise Mr Haley; they all but guaranteed Mr Haley would be unable to obtain employment with another company in a comparable position to that which he held with LOA, barring LOA’s being willing to publicly withdraw the assertions it made in the Termination Letter, or until a court were to hold that LOA’s termination of Mr Haley’s employment was unlawful, and the allegations of lying were unjustified. Little imagination is required to see why LOA’s contravening conduct constituted by its sending of the Termination Letter all but guaranteed Mr Haley’s being unable to obtain comparable alternative employment. A prospective employer would naturally ask why Mr Haley, a person of 17 years’ experience with LO Group companies, had left the LO Group companies. The only truthful answer Mr Haley could give is that LOA terminated his employment for dishonesty and a “pattern of serious misconduct”; and Mr Haley would have to try to convince the prospective employer that these assertions were incorrect, and that the assertions had been arrived at through unfair processes. Just to describe this state of affairs demonstrates the unlikelihood of an employer proceeding to consider employing Mr Haley.

    [197] Earlier reasons, [459]

    [198] Rankin v Marine Power International Pty Ltd [2001] VSC 150, at [247]

1. Thus, I am satisfied that one consequence of LOA’s contravening conduct, constituted, as I have said, by its sending the Termination Letter to Mr Haley, is that it has prevented Mr Haley from obtaining, or from being in a position to obtain, employment with another employer or employers in a position or positions that is or are reasonably comparable to the position Mr Haley held or, given his skills and experience, was capable of holding, as an employee of LOA or any other LO Group company.

2. The next question is what would have occurred but for LOA having engaged in the contravening conduct. I have already assessed that, but for LOA’s wrongful termination of Mr Haley’s employment, there is a near certainty that Mr Haley would have remained employed by LOA until 10 September 2022, and there was a decreasing probability that he would have remained employed by LOA or by another LO Group company after that time. Employment with LOA or another LO Group company, however, would not have been Mr Haley’s only option for employment; part of the probability of Mr Haley not remaining with LOA or another LO Group company is accounted for by the probability of Mr Haley’s being employed by another company or companies in comparable positions, and at a comparable salary to the position and salary Mr Haley enjoyed while employed by LOA. Thus the probability to be assessed is the probability of Mr Haley being retained by an LO Group company (including LOA) or Mr Haley commencing employment with another company in a comparable position and salary as he held and enjoyed with LOA. I assess the probability of this occurring over the period from 23 September 2022 to 28 March 2025 to be 85%.

3. In these circumstances, given the findings I have made about what Mr Haley earned or will have earned, I assess the compensation for the economic loss Mr Haley suffered because LOA’s contravening of s 340(1) of the FW Act to be as follows:

Description	Amount
Period 1 Income from 25 July 2020 (day after dismissal) to 10 September 2022 (final day of 482 visa), based on an annual income differential of $322,593 (with daily amount being $883) and on the basis of a near certainty that Mr Haley would have remained employed with LOA until 10 September 2022.	$686,617
Period 2 Income from 11 September 2022 to 28 March 2024 (date of earlier reasons) based on 85% probability Mr Haley would have been retained by an LOA Group company (including LOA) or by another company; and on the basis of an average annual wage differential of $280,000 (converted to a daily differential of $767)	$367,738 [199]
Period 3 Income from 29 March 2024 (being date after the date earlier reasons delivered) up to 23 August 2024 (date of judgment on damages) based on 85% probability Mr Haley would have been retained by an LOA Group company (including LOA) or by another company; and on the basis of an average annual wage differential of $180,000 (converted to a daily differential of $493)	$62,019.[200]
Compensation up to 23 August 2024 (date of judgment on damages and compensation)	$1,116,374
Period 3 from 24 August 2024 to 28 March 2025 on same assumptions but discounted at 3% to arrive at present value as at 23 August 2024.	$88,295 [201]
TOTAL	$1,204,669

[199] 85% x [($280,000 x 1) + ($767 x 199)] = $367,738 [199 is 199 days from 11 September 2023 to 28 March 2024

[200] 85% x ($493 x 148) = $62,019

[201] 85% x ($493 x 217) = $90,933, the present value of which, as at 23 August 2024, calculated at 3% is $88,295 ($90,933 x 0.9710 = 88,295). The number 0.9710 is the $97.10 which Table 1 provides is the present value of $100 in 3 years time on the basis of compound interest rate of 3%).

Claim for compensation for pain, suffering, humiliation, and embarrassment

1. Mr Haley claims compensation in the amount of $50,000 for pain, suffering, humiliation, and embarrassment.

2. In its written submissions LOA submits that Mr Haley’s claim for compensation for hurt and distress suffers from a “fatal flaw”, namely, that the hurt and distress Mr Haley claims he suffered was “caused by his summary dismissal, as opposed to the contravention of s 340(1) of the FW Act that LOA was held to have committed”. LOA further submits that there is no evidence that Mr Haley’s hurt distress or humiliation “resulted from the fact that adverse action was taken against him for exercising a workplace right”. For that reason, LOA submits, Mr Haley did not suffer non-economic loss “because of” LOA contravention.

3. These submissions appear to ignore the ultimate finding I made in the earlier reasons that LOA took adverse action against Mr Haley because Mr Haley exercised his workplace rights. The adverse action, that is, the contravening conduct, was constituted by LOA summarily dismissing Mr Haley by conveying to him the Termination Letter. The question that arises is whether Mr Haley suffered “hurt, distress and humiliation shown to be a direct consequence of [the] contravention”.[202] That question is to be answered in the affirmative.

   (a)First, there are the contents of the Termination Letter, the sending of which constituted LOA’s conduct that contravened 340(1) of the FW Act. LOA there asserted without any particularisation, and without any evidentiary or rational support,[203] that Mr Haley had lied and had otherwise engaged in serious misconduct. It is difficult to imagine conduct that is better fitted to cause a person who has not lied or engaged in serious misconduct extreme hurt, distress, and humiliation. There is no question that Mr Haley profoundly felt that hurt, distress and humiliation, at the time he read the Termination Letter; and that he has continued to feel that hurt, distress, and humiliation.

   (b)Second, there is the disruption that the summary dismissal of his employment caused Mr Haley and his family. The disruption arose as a direct consequence of the contravening conduct because it meant that Mr Haley’s 482 visa would expire within 60 days; and Mr Haley, therefore, had to make arrangements to leave Australia at a time where there was in place restrictions due to the COVID-19 pandemic.[204]

   [202] RailPro Services Pty Ltd v Flavel [2015] FCA 504, at [176]

   [203] Earlier reasons, [461]

   [204] Affidavit T Haley 26.04.2021, [10]

4. I am satisfied that the $50,000 Mr Haley claims is just compensation for the extreme hurt, distress and humiliation he suffered as a direct consequence of LOA’s contravention of s 340(1) of the FW Act.

   Incidental losses

5. I am satisfied that Mr Haley is entitled to compensation under s 545(2)(b) of the FW Act for the removal costs of $24,741 for the same reasons I have held Mr Haley is entitled to damages for breach of contract for those costs.

6. As for the break fees, I am satisfied these are costs Mr Haley would not have incurred had LOA not contravened s 340(1) of the FW Act. It may be inferred that the costs arose by Mr Haley having to make hasty arrangements to leave Australia before his 482 visa was due to expire. Given that LOA was Mr Haley’s business sponsor in relation to the visa, it was reasonably foreseeable by LOA that if it were to summarily dismiss Mr Haley from his employment in contravention of s 340(1) of the FW Act, it would have been likely that Mr Haley would have had to make hasty arrangements to leave Australia, and that such hasty arrangements would have included terminating lease agreements on the basis of his being required to pay some cost for being permitted to do so.

7. I am therefore satisfied that the $14,539.40 break fees represent a loss for which Mr Haley is entitled to be compensated under s 545(2)(b) of the FW Act.

   OTHER CLAIMS

8. Mr Haley also claims compensation for number of expenses that may fairly be characterised as expenses he incurred in connection with his prosecuting this proceeding. Compensation for these amounts, to the extent compensation for such expenses is available at all, is available only pursuant to s 570 of the FW Act.

   INTEREST

9. Mr Haley applies for an order for interest under s 547 of the FW Act, which provides:

   (1)This section applies to an order (other than a pecuniary penalty order) under this Division in relation to an amount that a person was required to pay to, or on behalf of, another person under this Act or a fair work instrument.

   (2)In making the order the court must, on application, include an amount of interest in the sum ordered, unless good cause is shown to the contrary.

   (3)Without limiting subsection (2), in determining the amount of interest, the court must take into account the period between the day the relevant cause of action arose and the day the order is made.

10. The orders “under this Division” include not only orders made under s 545 of the FW Act, but also orders made under s 543 of the FW Act, which relate to the enforcement of entitlements identified in s 542 of the FW Act, being a “safety net contractual entitlement of a national system employer or a national system employee”. Mr Haley’s claim for wrongful dismissal of the Contract of Employment relates to the same subject matter as s 117(2) of the FW Act relates, being one of the National Employment Standards; and, for that reason, Mr Haley’s claims for relief based on wrongful dismissal fall within s 543 of the FW Act. In any event, Mr Haley would be entitled to an order for interest under s 211 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

11. I will order interest under s 547(2) of the FW Act in relation to the damages I have assessed up to 23 August 2024 for the breach of contract claim, and the compensation I have assessed up to 23 August 2024 for the 545 claim; and I will to do so from 25 July 2020, being the day after LOA wrongfully terminated the Employment Contract and contravened s 340(1) of the FW Act. I will apply the approach and interest rate provided for in the Federal Court Practice Note GPN-INT, being 4% above the cash rate for each six-month period, for each of the heads of damage or compensation other than economic loss up to 23 August 2024.

12. As for interest on the damages and compensation I have assessed for Mr Haley’s economic loss up to 23 August 2024, I propose to apply the approach Hall J applied  in Kipriotis v Royal Tiles Pty Ltd:[205]

    226     For the purposes of calculating the award of interest, the relevant interest rate is 6.34% . . . .

    227     In Cullen v Trappell (1980) 146 CLR 1, Gibbs J (as he then was) discussed the awarding of interest on past economic loss, in particular interest on past loss of earning capacity. His Honour noted the judgment of Lord Diplock in Cookson v Knowles [1977] QB 913 at 921, in which his Lordship proposed two means of calculating such an award of interest: halve the period for which interest is to be given but employ current rates of interest, or give interest for the whole period using half the current rates: Cullen v Trappell (supra) at 19.  In Cullen (supra) the majority of the Court determined that the Court of Appeal had correctly calculated the award of interest for economic loss, the Court of Appeal having given interest for the whole period at half the current rates at that time.

    228     Pursuant to s.18 of the Civil Liability Act, and having had regard to the approaches discussed in Cullen v Trappell (supra), the plaintiff is entitled to award of interest on past economic loss totalling $9,840 . . . and calculated applying the current rate of 6.34% over half the period, the period otherwise being 30 September 2003 up until judgment).

    [205] Kipriotis v Royal Tiles Pty Ltd [2008] NSWSC 871, at 227

13. Thus, in relation to the damages and compensation I have assessed for Mr Haley’s economic loss up to 23 August 2024, I will award interest for the period from 25 July 2020 to 23 August 2024 calculated by applying the current interest rate provided for by Federal Court Practice Note GPN-INT, namely, 8.35%, for half of the period from 25 July 2020 up to 23 August 2024.

    SUBSECTION 117(2)

14. LOA submits it is not open to permit Mr Haley to claim that LOA has contravened s 117(2) of the FW Act because he has not made any such claim, and to permit Mr Haley to so claim will deny LOA procedural fairness.

15. I accept LOA’s submission.

    SUMMARY OF DAMAGES AND COMPENSATION

16. I now summarise the amounts for damages and compensation I have assessed, and the interest I have calculated that should be paid on those amounts as follows:

    Breach of contract claim

Loss	Amount	Prejudgment interest	Amount + interest
Loss of income up to 23 August 2024	$1,062,249	$181,039[206]	$1,243,288
Present value of loss of future income from 24 August 2024 to 28 March 2025	$63,592	No interest	$63,592
Relocation costs	$24,741	$5,351.19	$30,092.19
Break fees	$14,539.40	$3,139.75	$17,679.15
TOTAL	$1,165,121.40	$189,529.94	$1,354,651.34

[206] The period from 25 July 2020 to 23 August 2024 is four years and 30 days. Half that period is two years and 15 days. The annual amount of interest at 8.35% applied to $1,062,249 is $88,697; and the daily amount is $243. Interest for two years and 15 days, therefore, is (2 x $88,697) + (15 x $243) = $177,394  + $3,645 = $181,039

Compensation under s 545(2)(b) of the FW Act for contravention of s 340(1)

Loss	Amount	Prejudgment interest	Amount + interest
Loss of income up to 23 August 2024	$1,116,374	$190,259[207]	$1,306,633
Present value of loss of future income from 24 August 2024 to 28 March 2025	$100,572	No interest	$100,572
Relocation costs	$24,741	$5,351.19	$30,092.19
Break fees	$14,539.40	$3,139.75	$17,678.15
Hurt, distress and humiliation	$50,000	$10,807.53	$60,807.53
TOTAL	$1,306,226.40	$209,557.47	$1,515,782.87

[207] The period from 25 July 2020 to 23 August 2024 is four years and 30 days. Half that period is two years and 15 days. The annual amount of interest at 8.35% applied to $93,217; and the daily amount is $255. Interest for two years and 15 days, therefore, is (2 x $93,217) + (15 x $255) = $186,434 + $3,825 = $190,259

DISPOSITION

1. On the breach of contract claim I propose to order that judgment be entered in the sum of $1,354,651.34. This includes interest of $189,529.94. On the 545 claim I propose to order that LOA pay compensation to Mr Haley in the amount of $1,515,782.87. This includes interest of $209,557.47.

2. To avoid the possibility of double recovery,[208] I will order that any payment LOA will make on account of the judgment on the breach of contract claim or on account of the order for compensation and interest in the 545 claim shall be taken to discharge both the judgment and the order for compensation to the extent of the payment.

   [208] As for the principle against double recovery, see Baxter v Obacelo Pty Ltd [2001] HCA 66

3. There is currently in place an order staying this proceeding in relation to Mr Haley’s claim for the payment of pecuniary penalties, pending the determination of an application for leave to appeal LOA has filed in the Federal Court of Australia. I will grant the parties liberty to apply to list the matter on the question of penalties if the stay is lifted and the declarations I made on 28 March 2024 survive the appeal.

I certify that the preceding one hundred and eighty-eight (188) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       23 August 2024