Health Services Union NSW v McMillan

The Health Services Union NSW was engaged in an action against McMillan and others, involving allegations of inflated rates for goods and services supplied and profit-sharing by the defendants. The matter was before the court for an application for summary judgment. The primary legal issues revolved around the nature of the remedies available to the plaintiff, specifically whether the recovery of bribes and the receipt of equitable compensation for the loss suffered by the plaintiff would constitute double recovery, or if these remedies could be pursued cumulatively.

The court considered the precedent set by previous cases that held bribes received by an employee of the plaintiff could form part of the loss suffered by the plaintiff, thereby justifying the grant of equitable compensation. The court also acknowledged that the equitable compensation was not merely a substitute for damages but rather a separate and distinct remedy aimed at restoring the plaintiff to the position they would have been in had the breach not occurred. The court found that the remedies were not cumulative but rather alternative, meaning the plaintiff could seek either the restitution of the bribe or equitable compensation for the loss, but not both. This decision was based on the principle that allowing both remedies would result in the plaintiff receiving a windfall and would effectively constitute double recovery.

In light of the court's findings, the application for summary judgment was granted. The court ruled that while the Health Services Union NSW could recover the bribes paid to the first defendant, they could not also claim equitable compensation for the loss suffered as this would amount to double recovery. The final orders of the court reflected this reasoning, confirming that the plaintiff was entitled to recover the bribes but not the additional equitable compensation.