Lamond v Secretary, Department of Infrastructure and Transport
[2011] FMCA 165
•2 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LAMOND v SECRETARY, DEPARTMENT OF INFRASTRUCTURE & TRANSPORT and ANOR | [2011] FMCA 165 |
| INDUSTRIAL LAW – Employment – injunction to restrain termination of employment – ‘serious case to be tried’ – balance of convenience considerations. |
| Fair Work Act 2009 Public Service Act 1999, s.29(3)(c) |
| American Cyanamid Co v Ethicon Ltd (1975) AC 396 R.P. Meagher, J.D. Heydon, M.J. Leeming, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies, (Fourth Edition) (Sydney: LexisNexis Butterworths, 2002) |
| Applicant: | BELEN LAMOND |
| First Respondent: | SECRETARY, DEPARTMENT OF INFRASTRUCTURE & TRANSPORT |
Second Respondent: COMMONWEALTH OF AUSTRALIA
| File Number: | CAG 5 of 2011 |
| Judgment of: | Neville FM |
| Hearing date: | 2 March 2011 |
| Date of Last Submission: | 2 March 2011 |
| Delivered at: | Canberra |
| Delivered on: | 2 March 2011 |
REPRESENTATION
| Solicitor/Advocate for the Applicant: | Ms R Nicholas |
| Solicitors for the Applicant: | Nicholas Dibb Solicitors |
| Solicitor/Advocate for the Respondents: | Mr P. Vane-Tempest |
| Solicitors for the Respondents: | Blake Dawson |
ORDERS
UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
The notice of termination issued by the First Respondent under section 29(1) of the Public Service Act 1999 dated 25th February 2011 be of no effect.
The Applicant’s employment with the First Respondent remains on foot.
The First Respondent may not issue a notice of termination under section 29(1) of the Public Service Act 1999 in respect of the Applicant that would take effect on or before 22nd March 2011.
The Applicant is to file an amended Application and points of claim within 7 days.
The Respondents are to file any Response within a further 7 days.
The parties are to attend a mediation before a Registrar of the Federal Magistrates Court on 18th March 2011 at 10:15am.
If not resolved at mediation, the matter will be adjourned for further mention and/or directions on 22nd March 2011 at 2:15pm.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAG 5 of 2011
| BELEN LAMOND |
Applicant
And
| SECRETARY, DEPARTMENT OF INFRASTRUCTURE & TRANSPORT COMMONWEALTH OF AUSTRALIA |
First Respondent
COMMONWEALTH OF AUSTRALIA
Second Respondent
REASONS FOR JUDGMENT
Introduction
Following a short hearing earlier in the day, the following oral judgment was delivered on 2nd March. Prior to delivering it I indicated to the lawyers for the parties who were present that, in the event that written reasons were required, the various abbreviated forms of reference used in the course of the oral judgment, and other matters that were otherwise noted briefly, would be incorporated in full into the formalised judgment. What follows are the reasons revised from the Transcript.
On short notice, the Court has been asked to grant, among other relief, an interlocutory injunction to prevent being implemented a statutorily notified dismissal directed to the Applicant, Ms Lamond, sent by the authorised delegate of the Secretary of the First Respondent, the Department of Infrastructure & Transport (“the Department”), which is to take effect later this afternoon.[1]
[1] The Commonwealth of Australia was named as the Second Respondent. While formally the ‘employer’ of the Applicant, for all practical purposes the Department is the relevant [respondent] party.
The Court addresses the matters raised before it in something of an evidentiary vacuum. This is to say that there is no affidavit evidence before the Court, or any other evidence. There is ‘material’ of significance attached to the Form 3: Claim under the Fair Work Act 2009 alleging unlawful termination of employment.
Relevantly, that ‘material’ is copies of the following letters (and annexures thereto):
(a)Letter from Mr D Banham, Chief Operating Officer, Corporate Services of the First Respondent Department, dated 25 February 2011. That letter, which is addressed to the Applicant’s Solicitor, also has attached to it the Notice of Termination, addressed to the Applicant, dated 25 February 2011;[2]
(b)Email letter from the Applicant’s Solicitors to Mr Banham, dated 18 February 2011.
[2] The Notice of Termination was issued under s.29 of the Public Service Act 1999.
With understandable force, Mr Vane-Tempest (for the Respondents) protests about the lack of evidence before the Court. Among other things, such a situation places not only the Court at a singular disadvantage, but it similarly prejudices a respondent from knowing, with sufficient particularity, the case that is being put before the Court and therefore the case that has to be met by way of formal response.
In her defence (so to speak), Ms Nicholas (for Ms Lamond) says that she only received Mr Banham’s letter from the Department yesterday (1st March) under cover of which her client was given formal notice of the Department’s intention to dismiss her.
Notwithstanding the evidentiary vacuum, it is not uncommon for Courts to deal with urgent applications in circumstances where the limitations of time and or the urgent circumstances have limited, or precluded, the collection, collation and appropriate presentation of relevant evidence.[3] That said, it is surprising that there was no affidavit from the Applicant.
[3] Among many examples, see the discussion by Young JA in Lucas Stuart Pty Ltd v Hemmes Hermitage Pty Ltd [2010] NSWCA 213 at [73].
As I have already noted, for ease of reference, the facts available to the Court may be taken to be incorporated into these reasons from the letter of Ms Nicholas to Mr Banham dated 18th February 2011 and Mr Banham’s letter to Ms Nicholas dated 25th February 2011. So far as is relevant, and admittedly (as I have already noted) they are not part of any affidavit or other sworn evidence, those facts, in summary, are as follows.
Factual Outline
Applicant’s Contentions:[4] Ms Lamond has been employed by the Department since 1999. In 2003 and again in 2007, she has accepted employment by the Department under an AWA, at the level of APS 5.
[4] The following is taken from Ms Nicholas’ letter to Mr Banham, dated 18th February 2011.
At various times, but consistently so, she has acted as support or ‘back-up’ for the Cabinet Liaison Officer (CLO). In 2004, she was employed under an AWA at the level of APS 6; her duties at this level related to Senate Estimates Questions on Notice.
Since 2003, Ms Lamond contends that her responsibilities generally have been in relation to Senate Estimates ‘briefs.’
In 2008, Ms Lamond says that she was acting CLO for 6 – 8 weeks. In 2009, she says that she acted in an Executive Level 1 position for four (4) months as CLO, which position ended on 1st December 2009.
She also says that she received a ‘good performance assessment’. She has also received a Corporate Achievement Award.
In November 2009, Ms Lamond says that the CLO position was advertised, first at the level of EL1 (“executive level”), and then, when few expressions of interest were received, it was re-advertised at the level of APS 6. Ms Lamond did not receive an interview for the position.
Following her unsuccessful application, Ms Lamond requested that she return to her former position dealing with Senate Estimates Questions on Notice. She was advised that that position was now filled by another person, at the level of EL1.
At about the same time (November 2009), Ms Lamond was asked to take four weeks leave in order to reduce her leave balance. She took the leave, as requested from early December until mid-January 2010.
Ms Lamond contends that, upon her return from leave, her position had disappeared. She was not assigned to another position at her previous level of APS 5. Instead, she says that she was required to undertake duties of photocopying and such matters, which customarily are carried out by persons employed at the lower level of APS 2.
She further contends that upon the appointment of a new Director of her Section in the Department in July 2010, Ms Lamond was then subject to various formal and informal performance reviews.
In short, the performance tasks assigned to Ms Lamond, she says, were not in areas where she had either expertise or experience. Together with the general pressure from the performance reviews, the tasks assigned to her caused her health to suffer. She sought medical advice and assistance. No evidence in this regard is before the Court.
A formal performance review of Ms Lamond took place between November and December 2010. She says that her adverse health prevented her from ‘enduring the high stress’ under which she was placed by this review. In such circumstances, she was unsurprised by the finding by the external consultant who conducted the review, which was to the effect that Ms Lamond required development and that she did not meet the required standard of the APS 5 level of the Department.
Ms Lamond says that she met with Mr Banham and Ms Dawes from the Department on 1st February, at which meeting she was informed, among other things, that of the four options open to her, the Department’s view was that she should leave the Department, that the Department did not have a position for her, and that a final decision would be made ‘next week.’
Among other things, Ms Lamond contends that the action of the Department is unfair and unreasonable in the circumstances.
Department’s Contentions:[5] Mr Banham confirmed to Ms Nicholas that Ms Lamond was given a copy of the independent assessor’s report, dated January 2011. That Report, which is not before the Court, included findings (said Mr Banham in his letter to Ms Nicholas) that Ms Lamond’s performance of the duties assigned to her did not meet the requirements set out in her Performance Improvement Plan (“PIP”) or the required standards of the Department’s APS Work Level Standards.
[5] The following matters are taken from Mr Banham’s letter to Ms Nicholas, dated 25th February 2011.
Mr Banham advised Ms Nicholas that Ms Lamond’s duties had not disappeared and that she was not “an excess officer.’ However, he did confirm that: “Consistent with the work level standards and capability requirements, the new role regarding Questions on Notice was allocated to an officer at a higher level than Ms Lamond.”
Mr Banham also confirmed that Ms Lamond was given ample tasks appropriate to an APS 5 to complete. He said: “in light of this, Ms Lamond was not in any sense ‘excess’ to the Department’s requirements and was not therefore appropriate to be considered for voluntary redundancy.” Mr Banham went on to state in his letter to Ms Nicholas:
Only such tasks that a person with Ms Lamond’s experience and skills could successfully complete were allocated to her. Ms Lamond had been in the Ministerial and Parliamentary Services Section for approximately seven years and the tasks she was given were designed to draw on her knowledge about the work undertaken in the Section.
It was also noted that Mr Titheridge (the independent assessor) said that he was aware of persons under review feeling stressed. Accordingly, said Mr Banham, in his view the assessor and author of the report on Ms Lamond “has made appropriate allowances for the pressure which Ms Lamond may have been feeling and the Department can rely on the report provided by him as providing a comprehensive and accurate assessment.”
I pause here to note that, because the Court does not have a copy of the Report, it is not possible to make any appropriate evaluation as to what Mr Titheridge did or did not take into account in relation to the alleged stress (and/or stressors) experienced by Ms Lamond. For example, the Court does not know if any medical evidence was provided to the assessor, and if so, how (or in what way) it was considered. Such matters may (or may not) be relevant for the Court to consider at any final hearing.
Mr Banham also noted that the standards against which Ms Lamond’s performance was measured were generic, and therefore, she did not meet the requirements for any other APS 5 position within the Department more generally. In any event, Mr Banham confirmed that there were no vacancies in the Planning and Reporting Section of the Department. Mr Banham was also of the view that it was not appropriate, as an option for Ms Lamond, to re-classify her responsibilities to a lower level, having regard to her ‘skill-set and experience.’
In the light of the above, Mr Banham advised or confirmed to Ms Nicholas that the Department had resolved to terminate Ms Lamond’s employment, under s.29(3)(c) of the Public Service Act 1999, being for “unsatisfactory performance of duties.” The termination was stated to take effect on 2nd March 2011.
Notwithstanding the matters addressed above, at the hearing I remained uninformed as to how (and why) an employee of reasonably long-standing with the Department, and who has had (so it would seem) meritorious reviews of her work performance, can, within such a seemingly short time, be assessed as unsatisfactory in her work performance. As I said at the hearing, I am surprised and concerned about such a development and the lack of information in this regard. It may be, of course, that such matters are set out and dealt with thoroughly in the assessment by Mr Titheridge. It may be that there is significant countervailing evidence to the effect that Ms Lamond has been harshly done by. Unfortunately, the Court simply is in no position to make any informed assessment. In such circumstances, the lack of explanation why someone who has worked at the Department for such a significant period of time (and seemingly satisfactorily so) is now deemed to work so poorly as to warrant dismissal, is a troubling and significant matter.
Submissions
Very summarily stated the respective contentions of the parties are as follows.
The Applicant says that a serious question is raised by the application, namely discrimination in Ms Lamond’s treatment at her place of employment. In the course of argument it was suggested that the bases of discrimination included age and national extraction, and possibly sex.
In passing I also note, as I did at the brief hearing earlier today, that the Form 3 filed with the Application was less than helpful in identifying and particularising the specific grounds of, and reasons for, the Application. The Form is something of a blancmange of options from which an applicant must choose, and within the various “tick boxes” there are yet more options specified, but which are unable otherwise to be particularised. It certainly conceals more than it reveals. It is decidedly unhelpful.
I also note that the Application formally is one which alleges unlawful termination of employment as opposed to a claim for discrimination. Certainly the generality of the Form 3 is a powerful argument for a return to pleadings in some shape or form so as to provide an appropriate and necessary level of particularity for the benefit of the Court and the parties.
Ms Nicholas also submitted that the balance of convenience was such that it would be better to keep the status quo in place (i.e. that her client’s employment not be terminated) so as to enable the parties to plead and otherwise particularise their respective claims, as well as to enable them to hold settlement discussions (either formal or otherwise with a Registrar of the Court, for example). She also said that the risk to her client’s reputation, and therefore her prospects for future employment, would be severely damaged in the event that the termination proceeded at the close of business today. This would be especially the case given that her client is aged 65 years. In her submission, damages alone would not be an adequate remedy.
For the Respondent’s part, also briefly stated, the principal submission related to the lack of detail in knowing the actual case they were having to face. Mr Vane-Tempest also submitted that if a case was established by the Applicant, damages would be an adequate remedy. He also confirmed that from the Respondent’s perspective, the preferred course would be to sever the employment relationship between the parties before the commencement of any discussions (including mediation) in relation to settlement.
Legal Principle
Since the House of Lords’ decision in American Cyanamid Co v Ethicon Ltd,[6] Lord Diplock’s statement of principle has been, by and large, the legal touchstone for the consideration of whether to grant an interlocutory injunction. And as his Lordship noted in that case, “[the] grant of an interlocutory injunction is a remedy that is both temporary and discretionary.”[7]
[6] American Cyanamid Co v Ethicon Ltd (1975) AC 396.
[7] Ibid at p.405.
Broadly stated, his Lordship’s statement of “governing principle” is as follows.[8] First, Lord Diplock said that the object of an interlocutory injunction is “to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial.” His Lordship also noted the correlative or “corresponding need for the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff’s undertaking in damages if the uncertainty were resolved in the defendant’s favour at the trial.”[9]
[8] Lord Diplock’s discussion is at pp.406-409. The other members of the House of Lords (Viscount Dilhorne, Lord Cross of Chelsea, Lord Salmon and Lord Edmund-Davies) concurred with Lord Diplock’s judgment and statement of principle. See further, the detailed discussion in R.P. Meagher, J.D. Heydon, M.J. Leeming, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies, (Fourth Edition) (Sydney: LexisNexis Butterworths, 2002) [21-340] ff.
[9] [1975] AC at p.406.
Lord Diplock confirmed that the court must be satisfied that the claim is not frivolous or vexatious; “in other words, that there is a serious question to be tried.”[10]
[10] [1975] AC at p.407.
In more detail, his Lordship confirmed that in applications for interlocutory injunctive relief, the proper way to proceed was as follows. If the plaintiff/applicant has demonstrated that there is a serious question to be tried the Court then needs to consider whether damages is an adequate remedy (and whether or not the usual undertaking as to damages is required in the circumstances of the case), and finally, where it appears that damages would be inadequate, the balance of convenience needs to be examined.
Lord Diplock also said: “Where other factors appear evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the status quo.”[11]
[11] [1975] AC at p.408.
In Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia, Gaudron J endorsed Lord Diplock’s comment regarding preservation of the status quo. Citing his Lordship in American Cynamid and also in Garden Cottage Foods Ltd v Milk Marketing Board, her Honour said:[12] “As a general rule, interlocutory orders and injunctions are confined to orders maintaining the status quo at the time of the making of an application for those orders.” In the same place, Gaudron J noted further (internal citations omitted): “However, that is not invariably so.”
[12] Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at p.59 [119]. Garden Cottage Foods is reported at [1984] AC 130, and Lord Diplock’s comments cited are at p.140.
In addition to what has already been said, it can be observed more generally that the principles of Lord Diplock in American Cyanamid Co v Ethicon Ltd have been consistently applied in the High Court at least since Murphy v Lush.[13]
[13] (1986) 65 ALR 651, especially at p.653 per Gibbs CJ, Mason, Wilson, Brennan, Deane & Dawson JJ. See also the decision of Mason ACJ in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at pp.153-154. See, too, Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at p.24 [21] (Brennan CJ, McHugh, Gummow, Kirby & Hayne JJ). At p.33 [35] in Patrick Stevedores, admittedly in the context of the High Court’s discussion of interlocutory relief and s.23 of the Federal Court of Australia Act, the majority judgment said: “The moulding of an interlocutory injunction must depend upon the circumstances of each case.” In the same place, the Court said (internal citations omitted): “The general principle which informs the exercise of the power to grant interlocutory relief is that the court may make such orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of the jurisdiction invoked.” All of these authorities are to be contrasted with the earlier High Court decision in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, which had required that there be established a prima facie case for relief to be granted. While not formally over-ruled, later High Court authority to which I have referred has proceeded on the basis of the principles in American Cynamid. See, for example, the further discussion by Campbell JA in Lucas Stuart Pty Ltd v Hemmes Hermitage Pty Ltd [2010] NSWCA 213 at [5].
In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd,[14] Gleeson CJ discussed both the nature of the jurisdiction of a court to grant interlocutory injunctive relief, and the principles on which that might occur.[15] Perhaps most relevantly for current purposes, his Honour said:[16]
There could be no justification, in principle, for granting an interlocutory injunction here other than to preserve the subject matter of the dispute, and to maintain the status quo pending the determination of the rights of the parties. If the respondent cannot show a sufficient colour of right of the kind sought to be vindicated by final relief, the foundation of the claim for interlocutory relief disappears.
[14] (2001) 208 CLR 199.
[15] See 208 CLR at pp.216-220 [9] – [20].
[16] 208 CLR at p.218 [15].
Similarly of immediate import are his Honour’s further remarks:[17]
If there is no serious question to be tried because, upon examination, it appears that the facts alleged by the respondent cannot, as a matter of law, sustain such a right, then there is no subject matter to be preserved. There is then no justice in maintaining the status quo, because that depends upon restraining the appellant from doing something which, by hypothesis, the respondent has no right to prevent.
[17] 208 CLR at p.218 [16].
I have already noted the ‘usual requirement’ in relation to the ‘undertaking as to damages’ required of a plaintiff/applicant who seeks injunctive relief. Noting again the lack of evidence, I observe the following. First, in Botany Bay City Council v Minister of Transport and Regional Development, Sheppard J said:[18]
… in the area of administrative law considerations whether a party seeking interlocutory relief should be required to give an undertaking as to damages are not the same necessarily as apply where a party in what I may term private litigation sues and obtains an interlocutory injunction in order to preserve the status quo pending the Court determining the matter finally. In such cases an undertaking as to damages is usual. In the administrative law area there is no hard and fast rule and it may be that, if the councils were entitled to interlocutory relief, it would not be appropriate to require such an undertaking.
[18] [1996] FCA 1365 at [9].
Clearly, notwithstanding the involvement of the Department and the Commonwealth, this is not an administrative law matter. As such, the comments of Sheppard J are, in my view, not of immediate assistance or application.
Secondly, a recent, helpful consideration of the ‘usual undertaking as to damages’ was provided by [then] Campbell J in the New South Wales Supreme Court in Varley v Varley, and again by his Honour (now Campbell JA), as part of the Court of Appeal, in Evans & Associates v European Bank Ltd.[19]
[19] Varley v Varley [2006] NSWSC 1025; Evans & Associates v European Bank Ltd (2009) 255 ALR 171, especially at pp.178-181 [27] – [35]. See also the discussion by Gyles AJA in the same case at pp.199-203 [111] – [122].
It is sufficient to note the following comments of his Honour in Varley, at [64] & [65]:
[64] Following that decision, Nicholson J in the Federal Court in Ben Ward v State of Western Australia, 21 December 1995 unreported, BC 9501998 at 17–18 referred to the decisions in Custom Credit Corporation, and Allen v Jambo, and continued, at 18:
However examination of what was said in those authorities and in Cayne v Global Natural Resources PLC (1984) 1 All ER 225 at 233 makes it apparent that such an exception is recognised where the inability to provide an undertaking or an adequate undertaking would effectively preclude a plaintiff from the opportunity of having rights determined in a full trial so that the poverty would be a direct cause of an injustice in that the plaintiff would be kept from proving those rights.
[65] That seems to me to correctly state the circumstances in which those cases have held that an interlocutory injunction might be granted even if the applicant’s undertaking as to damages seems as though it might not be adequate. It is not a circumstance which is shown to apply here.
His Honour went on to say:
[66] The usual practice of the courts in the exercise of the general law jurisdiction is to require an undertaking as to damages as a condition of interlocutory relief. The authorities are extensively reviewed by Young J in Southern Tableland Insurance Brokers Pty Ltd (in liq) v Schomberg (1986) 11 ACLR 337. His Honour recognised that there is frequently stated to be special circumstances in which an undertaking as to damages might not be required, but said that he did not know of any case where such special circumstances existed. Given his Honour’s vast experience, such cases must indeed be extremely rare.
[67] The matters which led the equity court to develop the practice of requiring an undertaking as to damages as a condition of interlocutory relief are pragmatic ones. Necessarily, interlocutory relief is granted at a time when not all the facts are known which will be relevant at any ultimate hearing. There is a risk that, if an interlocutory injunction is granted, and it turns out at the trial that the facts are such that it ought not to have been granted, parties to the litigation and other people might suffer damage as a consequence of the interlocutory injunction having been granted. It is, in nearly all circumstances, elementary fairness that the applicant for an injunction, who asks the court to intervene in a way which gives rise to that risk, should undertake to bear the financial consequences of that risk. Those matters apply equally when an interlocutory injunction is sought pursuant to a statute.
It seems to me that, because (a) there was such an abbreviated hearing, and (b) the discussion on a number of matters (including any undertaking as to damages) was so attenuated, and (c) the parties have not had an opportunity to consider these written reasons and a number of the decisions to which reference has been made (e.g. Varley), there should be no formal order, at this stage, in relation to an undertaking as to damages.
I note further (and in no way critically of either party) only that the discussion (and submissions) in the course of the hearing were, in the first instance, inconclusive on the subject of whether the usual undertaking should be given by the Applicant. Certainly, there was no mention of any impecuniosity or such things on behalf of Ms Lamond. Moreover, as the case developed, and the orders sought were ultimately refined and made, in my view, because of the very short duration of the relief granted, the circumstances of the case are such that the requirement for such an undertaking may be held in abeyance until the matter comes back before the Court on 22nd March (unless resolved beforehand at mediation or otherwise).
Discussion
In the light of the authorities to which I have referred, and notwithstanding the scant material (as opposed to formal evidence) formally before the Court, it seems from what all of the parties have put in submissions alone confirms that there is a genuine if not serious dispute between them. There is also no dispute, in fact genuine agreement, that evidence needs to be marshalled and the matter properly pleaded to illuminate what the court forms unhelpfully concealed. In such circumstances, it seems to me that there is a serious question to be examined by the Court.
The matter that is of particular concern to me at the moment, again accepting the limitations as to evidence before the Court, is the risk to the Applicant if the termination proceeds in accordance with the notice directed to the Applicant. It seems to me that she risks significant prejudice in relation to any likely future employment when it is disclosed – as it would have to be – that she was dismissed from her current place of employment where she had worked for a significant period of time because of her unsatisfactory performance of duties.
In the course of her submissions, Ms Nicholas confirmed that her client sought injunctive relief only for so long as it would enable her to plead and particularise the nature and extent of her claim against the Respondents.
Given the prejudice that could potentially be suffered by the Applicant I have some difficulty in seeing how damages alone would be an adequate remedy in the circumstances currently known to the Court.
In relation to the balance of convenience considerations many matters are in play. For example, Courts have been reluctant – at times - to make orders for an injunction which amounts to an order for specific performance of a contract of employment.[20] Further, I note that the Full Court of the Federal Court in Gregory v Phillip Morris Ltd, on the one hand, suggested that special circumstances are required before specific performance of a contract or injunctive remedies will be granted, but on the other hand, the Court considered that reasonableness required that before taking the ultimate step of dismissal, an employer should have explored with the applicant available alternatives.[21]
[20] See for example Heath Lambert v Keenan (2000) 102 IR 306, a decision of the Supreme Court of Victoria cf. Hill v C.A. Parsons & Co. Ltd [1972] 1 Ch. 305; Baker v City of Salisbury [1982] 2 IR 168.
[21] Gregory v Phillip Morris Ltd, (1988) 80 ALR 455. See the discussion in the joint judgment of Wilcox & Ryan JJ at pp.471, 473-474 & 482 (the latter reference is to situations that involve “modern conditions and in connection with large employers”). See also the Full Court decision in BostikAustralia Pty Ltd v Gorgevski No. 1 (1992) 36 FCR 20.
Conclusion
In the circumstances of this case it seems to me that notwithstanding the genuine and significant reasons advanced by the Respondents not to grant injunctive relief, I am prepared to grant an injunction for a limited time, namely until the parties have properly pleaded and particularised their respective cases, and/or up until they have either sought to mediate the dispute either through Fair Work Australia or a Registrar of this Court – which-ever is the later of the two events. It seems to me that this course follows the route confirmed by Lord Diplock and Gaudron J in relation to the utility, indeed the importance, of interlocutory relief to preserve the status quo, where there is a serious question to be tried, and where damages are not an adequate or complete remedy, until the matter may be explored and determined according to a more fulsome consideration of proper pleadings and proper evidence. There patently needs to be a more detailed pleading of the case, and the marshalling of proper evidence.
I note that in submissions on behalf of the Respondents it was confirmed that the Applicant would be paid 5 weeks pay in lieu of notice (which was earlier advised in Mr Banham’s letter) as well as a significant number of weeks for leave of various kinds not yet taken. It would therefore seem that there would be no extra payments likely to be made (although categorised slightly differently) by the Respondents, a matter which may be of some relevance to the question of damages suffered (or potentially so) by the Respondents.
At the conclusion of delivering these reasons I requested the parties to bring in short minutes of order to reflect the conclusion arrived at by the Court. It then transpired that, following further discussion between the parties and the Court, the lawyers for each party agreed to provide a draft minute reflecting their respective positions to give effect to the reasons of the Court. The orders formally made reflect the further minutes provided by the parties, but obviously with some further adjustment so as to ensure that they reflect the intention of the Court as expressed in the reasons.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 16 March 2011
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