McGuirk v University of New South Wales - [2009] NSWSC 1424

CITATION: McGuirk v The University of New South Wales [2009] NSWSC 1424
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 12 June 2009

JUDGMENT DATE :
17 December 2009

JUDGMENT OF: Johnson J at 1

DECISION: 1. The Plaintiff is refused leave to file the proposed Amended Statement of Claim (MFI1).
2. The Plaintiff is granted leave to replead claims for breach of contract, breaches of the Trade Practices Act 1974 (Cth), breaches of the Fair Trading Act 1987 (NSW), common law deceit, misfeasance in public office and conspiracy by way of an Amended Statement of Claim to be filed and served by 17 February 2010.
3. The Plaintiff is refused leave to replead claims for actions on the case (fraudulent conduct and breaches of the Protected Disclosures Act 1994), breach of statutory duty and negligence.
4. The Plaintiff is ordered to pay 75% of the Defendant’s costs of this application.

CATCHWORDS: PRACTICE AND PROCEDURE - application for leave to amend pleading - multiple claims - breach of contract - breaches of Trade Practices Act 1974 (Cth) - breaches of Fair Trading Act 1987 (NSW) - fraudulent conduct - breaches of Protected Disclosures Act 1994 - breach of statutory duty - common law deceit - negligence - misfeasance in public office - common law conspiracy - whether amendments so obviously futile that leave to amend should be refused - embarrassing pleadings - whether no reasonable cause of action disclosed - leave to amend refused on pleading grounds - leave to replead granted for certain causes of action

LEGISLATION CITED: Civil Procedure Act 2005
Trade Practices Act 1974 (Cth)
Fair Trading Act 1987 (NSW)
Protected Disclosures Act 1994
Civil Liability Act 2002
Uniform Civil Procedure Rules 2005

CATEGORY: Procedural and other rulings

CASES CITED: Horton v Jones (No. 2) (1939) 39 SR(NSW) 305
Banque Commerciale SA En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279
Dare v Pulham [1982] 148 CLR 658
Australian Competition and Consumer Commission v Fox Symes & Associates Pty Limited [2005] FCA 1071
Kirby v Sanderson Motors Pty Limited (2001) 54 NSWLR 135
Gunns Limited v Marr [2005] VSC 251
Meckiff v Simpson [1968] VR 62
Shelton v National Roads & Motorists Association Limited [2004] FCA 1393
Northam v Favelle Favco Holdings Pty Limited (Bryson J, 7 March 1995, BC9504276)
Charlie Carter Pty Limited v Shop Distributive and Allied Employees Association (1987) 13 FCR 413
Trade Practices Commission v David Jones (Australia) Pty Limited (1985) 7 FCR 109
Beach Petroleum NL v Johnson (1991) 105 ALR 456
Rubenstein v Truth & Sportsman Limited [1960] VR 473
H 1976 Nominees Pty Limited v Galli (1979) 30 ALR 181
Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited & Ors [2008] NSWCA 243
White v Overland [2001] FCA 1333
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 83 ALJR 951
Turner v Bulletin Newspapers Co Pty Limited (1974) 131 CLR 69
Fleet v Royal Society for the Prevention of Cruelty to Animals NSW and Ors [2005] NSWSC 926
Dey v Victorian Railway Commissioners (1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Webster v Lampard (1993) 177 CLR 598
Brimson v Rocla Concrete Pipes Limited (1982) 2 NSWLR 937
Agar v Hyde (2000) 201 CLR 552
Wickstead v Browne (1992) 30 NSWLR 1
Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1995-1997) 188 CLR 241
Preston v Star City Pty Limited [1999] NSWSC 1273
Wearne v Southern Cross University [2006] FCA 1033
McFarlane v Daniell (1938) 38 SR(NSW) 337
Wardley Australia Limited v The State of Western Australia [1992] 175 CLR 514
Bond Corporation Pty Limited v Thiess Contractors Pty Limited (1987) 14 FCR 215
Brown v Jam Factory Pty Limited (1981) 35 ALR 79
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189
Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691
Lazarus Estates Limited v Beasley [1956] 1 QB 702
Northern Territory v Mengel [1996] 185 CLR 307
Rogers v The Queen (1994) 181 CLR 251
Hunter v Chief Constable of the West Midlands Police [1982] AC 529
Byrne v Australian Airlines Limited [1995] 185 CLR 410
O’Connor v Commissioner for Government Transport (1959) 100 CLR 225
Mihaljevic v Longyear (Australia) Pty Limited (1985) 3 NSWLR 1
Reid v Rush & Tomkins Plc [1990] 1 WLR 212
Sattin v Nationwide News Pty Limited (1996) 39 NSWLR 32
Sullivan v Moody [2001] 207 CLR 562
Gacic v John Fairfax Publications Pty Limited [2005] NSWSC 1210
Nationwide News Pty Limited v Naidu (2007) 71 NSWLR 471
Koehler v Cerebos (Australia) Limited [2005] 222 CLR 44
Yovicherich v Royal Australian and New Zealand College of Radiologists [2005] NSWSC 1208
Priest v State of New South Wales [2006] NSWSC 12
Quinn v Gray [2009] VSC 136
McKellar v Container Terminal Management Services Limited (1999) 165 ALR 409
Rajski v Bainton (1990) 22 NSWLR 125
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630
Sanders v Snell (No 2) (2003) 130 FCR 149
McGee v Yeomans [1977] 1 NSWLR 273
Slivak v Lurgi (Australia) Pty Limited [2001] 205 CLR 304
Jeans v Cleary [2006] NSWSC 647
Chan v Sellwood [2009] NSWSC 1335
Perpetual Trustees Victoria Limited v Dunlop [2009] VSC 331
Hamod v State of New South Wales (No. 12) [2009] NSWSC 242
State of New South Wales v Spearpoint [2009] NSWCA 233

PARTIES: Gerard Michael McGuirk (Plaintiff)
The University of New South Wales (Defendant)

FILE NUMBER(S): SC 20106/08

COUNSEL: Plaintiff in Person
Mr R Lancaster (Defendant)

SOLICITORS: Plaintiff in Person
Sparke Helmore (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JOHNSON J

17 December 2009

20106/08 Gerard Michael McGuirk v The University of New South Wales
JUDGMENT

1 JOHNSON J: The Plaintiff, Gerard Michael McGuirk, seeks leave to file an Amended Statement of Claim in these proceedings. The application is opposed on a number of bases by the Defendant, the University of New South Wales.

2 At the hearing of this application, Mr Lancaster of counsel, appeared for the Defendant. The Plaintiff was unrepresented by a legal practitioner.

History of the Proceedings

3 It is necessary to place this present application in context.

4 The substantive proceedings were commenced by (a 29-page) Statement of Claim filed on 31 March 2008. The claim related to a period between 1998 and 2002 during which the Plaintiff was employed by the Defendant. The claim relied upon several causes of action and sought relief in the form of five declarations, damages, aggravated and exemplary damages, interest and costs.

5 By Notice of Motion filed on 8 May 2008, the Defendant moved the Court for orders summarily dismissing the proceedings or striking out the Statement of Claim.

6 After service on the Plaintiff of the Defendant’s Notice of Motion, steps were taken so that the Notice of Motion did not proceed to hearing. Correspondence passed between the Defendant and the Plaintiff in which the Defendant invited the Plaintiff to replead his Statement of Claim so that it complied with the Uniform Civil Procedure Rules 2005 (“UCPR”).

7 On 13 June 2008 (pursuant to directions made by the Court on 16 May 2008), the Defendant served on the Plaintiff written submissions in support of its Notice of Motion. At the same time, the Defendant renewed its invitation to the Plaintiff to replead his Statement of Claim so that it complied with the UCPR. The Notice of Motion was stood over to enable the Plaintiff to replead his claim. Consent orders were made on 25 July 2008 requiring the Plaintiff to file and serve an Amended Statement of Claim by 26 September 2008. The period for the filing and service of an Amended Statement of Claim was extended by subsequent orders to 30 January 2009. An incomplete version of the proposed Amended Statement of Claim was served on the Defendant on 30 January 2009.

8 Following further correspondence, the Plaintiff served a proposed Amended Statement of Claim on the Defendant on 23 February 2009. By letter dated 5 March 2009, the Defendant indicated its attitude to that pleading.

9 On 14 April 2009, the proceedings came before Hoeben J, who directed that the Defendant prepare written submissions setting out the basis on which it opposed leave being granted to the Plaintiff to file the proposed Amended Statement of Claim, together with a list of the paragraphs objected to and a brief indication for the basis of the objection. The Defendant complied with those directions.

10 The Defendant has not yet filed a Defence in the proceedings.

11 At the hearing before me, on 12 June 2009, the Defendant did not, in oral submissions, move the Court to strike out the original Statement of Claim. However, in written submissions, the Defendant submitted that “If and to the extent that the plaintiff seeks to rely on the original statement of claim, the University presses its Notice of Motion filed 8 May 2008, and will rely on the submissions filed on 14 June 2008 in support of that motion”. As mentioned above, the Notice of Motion, filed on 8 May 2008, moved the Court for orders summarily dismissing the proceedings or striking out the original Statement of Claim.

12 At the hearing before me, the Plaintiff sought to rely upon the proposed Amended Statement of Claim in substitution for the original Statement of Claim. I approach the present application upon the basis that the live issues in the proceedings concern the proposed Amended Statement of Claim (described as the 1 June 2009 version) (MFI1). The original Statement of Claim remains on the Court file. It served to commence proceedings, and may assist the Plaintiff with respect to limitation arguments made by the Defendant in relation to some causes of action. Beyond that, however, I will put the original Statement of Claim to one side, to be regarded as a document of historical significance only in the litigation.

Evidence on the Application

13 At the hearing of this application, the Defendant tendered, and I admitted into evidence:

(a) a chronology of events since the commencement of proceedings on 31 March 2008, together with copies of correspondence between the parties between May 2008 and March 2009 (Exhibit A);

14 The Plaintiff tendered a Local Court transcript dated 11 February 2005 (Exhibit 1). No further documents were tendered by the Plaintiff having regard to the nature of the application, and the principles applicable in these circumstances.

15 The Defendant submitted that the application should proceed on examination of the proposed pleadings in MFI1 (with the allegations in the proposed pleadings to be accepted as true for the purposes of the application) together with such evidence as the Court may receive on the hearing of the application (paragraph 22, Defendant’s written submissions, 5 May 2009). Mr Lancaster submitted that the Court is not concerned, on an application such as this, with evidence in support of the Plaintiff’s case because, as a matter of principle, the Court is required “to take the pleading at its highest, namely that the statements of material fact are assumed for the purposes of the application to be viable as statements of fact” (T5.36, 12 June 2009). I will adopt this approach in considering this application.

Applicable Legal Principles

16 There is no dispute between the parties concerning the principles to be considered on this application. Rather, controversy exists concerning the outcome when those principles are applied.

17 It is the Plaintiff who makes application for leave to amend his Statement of Claim in accordance with the proposed Amended Statement of Claim (MFI1). The Defendant opposes this grant of leave upon a number of bases, including that no reasonable cause of action is disclosed in some areas, and that the proposed pleadings are embarrassing and that leave ought not be granted upon this basis.

18 The Defendant submitted, and I accept, that the governing principle is that a Court will not allow an amendment if it is so obviously futile that it would be liable to be struck out if it had appeared in the original pleading: Horton v Jones (No. 2) (1939) 39 SR(NSW) 305 at 309-310. That principle called into play the various rules concerning the striking out of pleadings on the basis that they are embarrassing or disclose no reasonable cause of action.

19 I will shortly refer to the principles applicable when arguments of this type are made. In the usual course, it will be the Defendant, who seeks to strike out an original pleading, who bears the onus of establishing that the particular vice which is said to exist does so. In this case, it is the Plaintiff who seeks the leave of the Court to file an amended pleading, a course which is opposed by the Defendant. In these circumstances, the appropriate course is to consider the submissions made by the parties upon the basis that it is for the Defendant to establish that no reasonable cause of action is disclosed or that a proposed pleading does not otherwise comply with the requirements of the UCPR.

20 Mr Lancaster and the Plaintiff accepted that this approach should be taken with respect to onus of proof on the present application (T6-7, 11-12, 12 June 2009).

Principles Concerning Pleadings

21 The function of pleadings is to state with sufficient clarity the case that must be met by a defendant. In this way, pleadings serve to define the issues for decision and ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her: Banque Commerciale SA En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 at 286, 296, 302-3. The issues defined in the pleadings provide the basis upon which evidence may be ruled admissible or inadmissible at trial upon the ground of relevance: Dare v Pulham [1982] 148 CLR 658 at 664; Banque Commerciale at 296.

22 In Perpetual Trustees Victoria Limited v Dunlop [2009] VSC 331, Forrest J observed at [24] that the rules of pleading are “the servants of the interests of justice”, with those interests demanding that a party have every opportunity to plead out an arguable case against other parties, but that those other parties have, at an early point in the proceedings, the opportunity to be properly appraised of the case against them.

23 Pleadings provide the structure upon which interlocutory processes, such as discovery, are governed and they constitute the record of the matters which the Court has resolved and become relevant if, in any subsequent proceedings, any party claims issue estoppel or res judicata: Australian Competition and Consumer Commission v Fox Symes & Associates Pty Limited [2005] FCA 1071 at [100]-[103].

24 Proper pleading is of fundamental importance in assisting Courts to achieve the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings: s.56 Civil Procedure Act 2005.

25 Where application is made by a party for leave to amend pleadings, the Court should have regard to considerations of case management, cost and delay: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 at [111]-[112]; (2009) 83 ALJR 951. Of course, the present application is made by the Plaintiff at an early stage in the proceedings. A hearing is not imminent. Nevertheless, the orderly progress of litigation requires the Court to apply the letter and spirit of the Civil Procedure Act 2005, in accordance with contemporary principles identified in Aon, in determining an application such as this.

26 The need for clarity, precision and openness in the conduct of litigation and the responsibility of parties and their legal representatives therefore flows most clearly from the statutory duty of a party and the duty in civil proceedings to assist the Court to further the overriding purpose to facilitate the just, quick and cheap resolution of the real issues in dispute: Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited & Ors [2008] NSWCA 243 at 161. The need for clarity, precision and openness as part of this co-operation has been emphasised in the context of ambush or surprise: White v Overland [2001] FCA 1333 at [4].

27 For a Statement of Claim to comply with the rules of Court, a party should plead, in a summary form, a statement of the material facts upon which the party relies, but not the evidence by which those facts are to be proved: Rule 14.7 UCPR. In doing so, the pleadings should be as brief as the nature of the case admits: Rule 14.8 UCPR.

28 In Kirby v Sanderson Motors Pty Limited (2001) 54 NSWLR 135, Hodgson JA (Mason P and Handley JA agreeing) said at 142-143 [20]-[21], with respect to the requirement for a pleading to state material facts:

“It might appear that these rules [the Supreme Court Rules] do not require that causes of action be stated in pleadings; the requirement is to have a statement of material facts, and indeed to have only such a statement. However, in my opinion - ‘Material’ means material to the claim, that is, to the cause or causes of action which are relied on. (2) The requirement of a statement of material facts does not exclude the allegation of legal categories, such as duty of care, fiduciary duty, trust and contract. (3) The general requirement to avoid surprise means that material facts must be stated in such a way that the defendant can understand the materiality of the facts, that is, how they are material to a cause of action.
Accordingly, even on the basis of these rules which are common to the District Court and the Supreme Court, I do not take cases such as Konskier as establishing that there is a danger of surprise, which arises particularly where there is lack of precision and clarity in the pleading, it may well be appropriate to require a Plaintiff, either in a statement of claim or in particulars, to explicitly relate the facts it pleads to specific causes of action.”

29 In Gunns Limited v Marr [2005] VSC 251, Bongiorno J observed at [57]:

“Not only must the pleading inform the defendants of the case they must meet now, but it must clearly set out the facts which the plaintiffs must assert to make good their claim with sufficient particularity to enable any eventual trial to be conducted fairly to all parties. Vague allegations on very significant matters may conceal claims which are merely speculative. If this be not the case, the plaintiffs must put their allegations clearly.”

Embarrassing Pleadings

30 A pleading is embarrassing where it is “unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him”: Meckiff v Simpson [1968] VR 62 at 70; Gunns Limited v Marr at [14]-[15].

31 In Shelton v National Roads & Motorists Association Limited [2004] FCA 1393 at [18], Tamberlin J explained the concept of “embarrassment” with respect to pleadings:

“Embarrassment in this context refers to a pleading that is susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense. This is not an exhaustive list of situations in which a pleading may be embarrassing: see Bartlett v Swan Television & Radio Broadcasters Pty Ltd (1995) ATPR 41-434.”

32 A pleading may be embarrassing even though it contains allegations of material facts sufficient to constitute a cause of action, if the material facts alleged are couched in expressions which leave difficulties or doubts about recognising or piecing together what is referred to: Northam v Favelle Favco Holdings Pty Limited (Bryson J, 7 March 1995, BC9504276 at 5-6).

33 Although the pleading of a conclusion may, in some circumstances constitute a material fact, nevertheless, the pleading will be embarrassing if allegations are made at such a level of generality that the defendant does not know in advance the case it has to meet: Charlie Carter Pty Limited v Shop Distributive and Allied Employees Association (1987) 13 FCR 413 at 417-418. In such a case, the appropriate remedy is to strike out the pleading rather than to order the provision of particulars, as it is not the function of particulars to take the place of the necessary averments in a pleading: Trade Practices Commission v David Jones (Australia) Pty Limited (1985) 7 FCR 109 at 112-114.

34 Rule 14.28 UCPR provides that pleadings that involve non-compliance are liable to be struck out as an embarrassment. However, generally the Courts recognise that a wide range of discretionary considerations arise where there is a failure to comply with the technical requirements of the pleading rules: Beach Petroleum NL v Johnson (1991) 105 ALR 456 at 466. In many instances, the appropriate order may be to strike out the offending pleading, but grant leave to amend: Rubenstein v Truth & Sportsman Limited [1960] VR 473 at 476; H 1976 Nominees Pty Limited v Galli (1979) 30 ALR 181 at 186.

35 It is not the function of the Court to draw or settle a party’s pleading. The Court is confined to the function of ensuring that pleadings are within the rules and fulfil the functions for which they exist. Objectionable matter that is so mingled with other matter may lead to the conclusion that the pleading as a whole would tend to embarrass the fair trial of the action ought be struck out: Turner v Bulletin Newspapers Co Pty Limited (1974) 131 CLR 69 at 72, 87-88, 97-98; Gunns Limited v Marr at [57]-[58]; Fleet v Royal Society for the Prevention of Cruelty to Animals NSW and Ors [2005] NSWSC 926 at [55].

Claim that No Reasonable Cause of Action Disclosed

36 With respect to the Defendant’s submissions that no reasonable cause of action is disclosed in certain respects in the proposed Amended Statement of Claim, I keep in mind the following principles which apply either directly or by analogy.

37 A very clear case is required before a litigant is prevented from pleading a case upon the basis that no reasonable cause of action is disclosed, and this power should be sparingly employed: Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129; [1965] ALR 636; Webster v Lampard (1993) 177 CLR 598 at 602-3; [1993] HCA 57. The test is not whether the Plaintiff would probably fail in his action against the Defendant, it is whether the material before the Court demonstrates that the action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail: Webster v Lampard at 602. The fundamental principle is that prima facie a plaintiff is entitled to have his case come to trial, and that an application to deprive him of that right will succeed only in the clearest of cases: Brimson v Rocla Concrete Pipes Limited (1982) 2 NSWLR 937 at 944. Usually, a party is not to be denied the opportunity to place his case before the Court in the ordinary way, and after taking advantage of the usual interlocutory processes. For a plaintiff to be shut out upon the basis that no reasonable cause of action is demonstrated, a high degree of certainty is required about the ultimate outcome of the proceeding, if it were allowed to go to trial in the ordinary way: Agar v Hyde (2000) 201 CLR 552 at 575-6.

38 For practical purposes, the present Defendant undertakes the burden of establishing that there is no triable issue by contending that there is no reasonable cause of action so that the amendment ought not be allowed: Wickstead v Browne (1992) 30 NSWLR 1 at 11. The General Steel test remains the primary touchstone for such an application. The mere fact (if it be the case) that a plaintiff’s prospects of success might be characterised as slim, would not be enough to strike out a pleading: Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1995-1997) 188 CLR 241 at 271; Preston v Star City Pty Limited [1999] NSWSC 1273 at [31]. The question for determination is whether a reasonable cause of action is disclosed, that is a cause of action which has some chance of success, or which could conceivably give the plaintiff a right to relief, or which, although weak, is properly debatable, and has some apparent legitimate basis, if the facts upon which it is alleged to be based are made good: Preston v Star City Pty Limited at [37].

39 The summary disposal procedure may be used even though a difficult question of law is invoked, and extensive argument is necessary to demonstrate that the case is so plainly untenable that it cannot succeed: General Steel at 130.

The Proposed Amended Statement of Claim

40 The proposed Amended Statement of Claim (MFI1) extends to 79 pages and contains 501 paragraphs, together with an index.

41 The relief claimed by the Plaintiff extends to the making of 11 declarations, together with a claim for damages, aggravated damages, exemplary damages, interest and costs.

42 Paragraphs 1 to 404 of the document contain a lengthy narrative of events extending over 54 pages.

43 Thereafter, the document refers to the following causes of action:

(a) breach of contract (paragraphs 405-411);

(b) contraventions of the Trade Practices Act 1974(Cth) (“TPA”) (paragraphs 412-424);

(c) contraventions of the Fair Trading Act 1987(NSW) (“FTA”) (paragraphs 425-437);

(d) action on the case - fraudulent conduct (paragraphs 438-440);

(e) action on the case - breach of the Protected Disclosures Act 1994 (paragraphs 441-444);

(f) breach of statutory duty ( Protected Disclosures Act 1994 ) (paragraphs 445-451);

(g) common law deceit (paragraphs 452-458);

(h) negligence (paragraphs 459-471);

(i) misfeasance in public office (paragraphs 472-488);
(j) common law conspiracy (paragraphs 489-497).

Submissions of the Parties

44 In broad terms, the Defendant submitted that leave should not be granted to the Plaintiff to file the proposed Amended Statement of Claim because the proposed pleadings were embarrassing, failed to disclose a reasonable cause of action and did not constitute proper pleadings. The Defendant also relied on a limitation defence to the proposed amendments alleging breach of contract and the TPA and FTA claims.

45 The Defendant submitted that the Court should refuse leave to the Plaintiff to rely upon the proposed Amended Statement of Claim. Further, the Defendant submitted that the Court should make additional orders refusing the Plaintiff leave to replead causes of action in fraudulent conduct, breaches of the Protected Disclosures Act 1994, breach of statutory duty, deceit, negligence, misfeasance in public office and conspiracy (T63.44, 12 June 2009). The Defendant submitted that any grant of leave to replead should be confined to certain of the Plaintiff’s claims for breach of contract and for breaches of the TPA and FTA (T70.1, 12 June 2009).

46 The Plaintiff sought to defend the entirety of the proposed Amended Statement of Claim. He submitted that leave should be granted to file an Amended Statement of Claim in accordance with MFI1.

47 I will refer to the submissions of the parties before moving to resolve the issues falling for determination.

Th e Breach of Contract Claim

48 Paragraphs 405 to 411 plead the Plaintiff’s claim for breach of contract. The pleading appears to allege three distinct contracts:

(a) a contract entered into on 18 December 2000 (paragraph 405);

(b) a contract entered into on 24 July 2001 (paragraph 406);

(c) a contract arising from a letter of offer dated 19 December 2001 (paragraph 407ff).

49 The Defendant submitted that the claims concerning the first two contracts should be considered together. It was submitted that the allegations relating to these contracts ought not be the subject of a grant of leave for two reasons. Firstly, the Defendant submitted that the allegations in paragraphs 405 and 406 are embarrassing. The only particulars given of breach are “by reason of the facts pleaded above”. The Plaintiff did not indicate which facts in the preceding 404 paragraphs were relied upon for breach of contract. Further, the Defendant submitted that the position was made no clearer if attention was confined to what appeared to be relevant paragraphs of the proposed Amended Statement of Claim (paragraphs 72-90 and 114-133). There was no express identification of which terms of the contracts were allegedly breached.

50 The Defendant relied on the decision in Wearne v Southern Cross University [2006] FCA 1033, where Branson J said at [27]:

“The University should not be required to sift through a narrative and then a list of complaints, for the purpose of trying to identify the precise manner (or manners) in which it is alleged to have breached the implied term and then categorise the particulars provided accordingly.”

51 Secondly, the Defendant submitted that any action in respect of the two contracts alleged must be time barred, and as a result there exists no reasonable cause of action. It was submitted that the original Statement of Claim was filed more than six years after the expiry of the two alleged contracts and, as a result, there was no reasonable cause of action.

52 With respect to the so-called third contract, the Defendant submitted that paragraphs 408-411 of the proposed Amended Statement of Claim appeared to contain four distinct allegations made in respect of this contract. Each allegation was said to arise “by reason of the facts pleaded above”. The Defendant submitted that no specification was given about which “facts” are referred to. It submitted that the pleadings are embarrassing and disclose no reasonable cause of action. Once again, it was submitted that this claim was time barred so that leave ought not be granted for it to be pleaded.

53 The Defendant submitted that the Plaintiff has not pleaded the material facts, nor has he stated the facts in such a way that the Defendant can understand the materiality of the facts, so as to comply with the requirements of Kirby v Sanderson Motors Pty Limited.

54 The Defendant submitted that, even if there was a breach of the Enterprise Agreement (which was denied), that would not give rise to an illegality such as to render the fixed term in the Plaintiff’s contract unlawful and trigger the principles of severance. Even if the Plaintiff was somehow able to invoke the principles of severance, the Defendant submitted that they could not assist him. The question whether it was possible to sever a provision of a contract that is illegal, or contrary to public policy, depended upon whether severance would change the extent only, but not the kind of contract: McFarlane v Daniell (1938) 38 SR(NSW) 337 at 345.

55 The Plaintiff denied that the pleadings in the proposed Amended Statement of Claim are embarrassing. He submitted that the contract pleadings are “pleaded with great specificity” (T21.10, 12 June 2009).

56 The Plaintiff submitted that paragraphs “405 onwards” constituted “a summary for greater assistance” and was “arguably surplus”. (T19.17-18, 12 June 2009). The Plaintiff submitted that the proposed Amended Statement of Claim did not offend the principles in Gunns Limited v Marr in relation to embarrassing pleadings.

57 The Plaintiff submitted that the present interlocutory application for leave to replead his breach of contract claims ought not be determined by reference to a limitations argument. He relied upon Wardley Australia Limited v The State of Western Australia [1992] 175 CLR 514 at 533 in this respect. Further, the Plaintiff submitted that there were contestable issues of fact and law surrounding his contract claims, so that he ought not be shut out from relying upon his amended claims under this heading. He submitted that the Defendant had not demonstrated, by reference to the General Steel test, that his causes of action for breach of contract were effectively hopeless. Indeed, he submitted that his claims for breach of contract were strong.

The TPA Claims

58 The Plaintiff claims damages for misleading and deceptive conduct in contravention of ss.52 and 53B TPA.

59 The Defendant submitted that the TPA pleadings in paragraphs 413-417 and 423-424 of MFI1 are embarrassing and disclose no reasonable cause of action.

60 The Defendant submitted that two sets of representations appear to be alleged:

(a) a representation relating to compliance with the Defendant’s policies (paragraph 413); and

61 The Defendant submitted that the particulars furnished, as part of paragraph 413 of MFI1, did not support the representation alleged in that paragraph, with the particulars comprising no more than bare assertions of publication and representations without identification or specification of the representations actually relied upon.

62 In addition, the Defendant submitted that the proposed pleadings were embarrassing, and failed to comply with Rule 15.3 UCPR which requires a pleading to give particulars of any fraud, misrepresentation, breach of trust, wilful default or undue influence on which the party relies. The Defendant submitted that there was a failure to comply with the requirements of pleadings referred to by Bryson J in Northam v Favelle Favco Holdings Pty Limited and Branson J in Wearne v Southern Cross University.

63 In addition, the Defendant submitted that the allegations of reliance and causation of damage were embarrassing. Reliance was placed upon the decision of French J, in Bond Corporation Pty Limited v Thiess Contractors Pty Limited (1987) 14 FCR 215 at 222, that a plaintiff claiming damages for breach of s.52 TPA must plead the necessary material facts to establish the causal relationship between contravention and the loss which is necessary to the cause of action. The Defendant submitted that this had not been done in this case.

64 The Defendant submitted that a number of paragraphs between paragraphs 415 to 424 of MFI1 simply pleaded a conclusion. No effort had been made to identify which policies the Plaintiff asserted were not complied with, or the basis on which it was said they were not complied with, let alone how the various acts of non-compliance relied upon were causative of loss. It was submitted that these vices were not cured by what was said to be the “bald statement” in paragraph 423 that, had the Plaintiff known that the Defendant’s representations were false, he would have directed his energies into some other career path.

65 The Defendant submitted further that the Plaintiff presses a time-barred claim under the TPA, in that the time for bringing any action for damages under that Act expired in July 2007.

66 With respect to paragraph 418 of MFI1, the Defendant submitted that the facts pleaded were not capable of sustaining a reasonable cause of action. It was submitted that, on the basis of the facts alleged, the Plaintiff could not have relied on the first three representations particularised in paragraph 418 at any time after 1 March 2002. Any representations, if made, had ceased to be operative: Brown v Jam Factory Pty Limited (1981) 35 ALR 79 at 86. The Defendant submitted that the manner in which allegations of reliance and causation of damage were made was embarrassing: Bond Corporation Pty Limited v Thiess Contractors Pty Limited at 222.

67 The broad submission of the Plaintiff with respect to the TPA claim was that the Defendant ought be able to discern the case against it from the proposed pleading. Further, he submitted that the Court should not shut him out from asserting such a claim upon a limitations basis, once again citing Wardley Australia Limited v State of Western Australia in this respect. He submitted that the issues raised by the Defendant involved contestable issues of fact and law which ought remain for determination at a final hearing.

The FTA Claim

68 This claim appears to rest on two sets of alleged representations. These representations are similar to the claims in relation to breach of the TPA:

(a) a representation relating to compliance with the Defendant’s policies (paragraph 426); and

69 The Defendant repeated the submissions made in relation to the TPA claim that the pleadings are embarrassing and disclose no reasonable cause of action. It was submitted that the claim was time barred by application of s.68(2) FTA.

70 The Plaintiff relied upon submissions made concerning the TPA claim under this heading.

Action on the Case - The Fraudulent Conduct Claim

71 The Defendant noted that the Plaintiff alleges a course of “fraudulent conduct” engaged in to deny him the benefit to which he was entitled under his contract of employment. The Defendant submitted that the claim suffers from several defects and that leave ought not be granted for it to be brought.

72 Firstly, the Defendant submitted that the cause of action relied on is obscure. The Defendant submitted that it was well established that fraudulent conduct may have a vitiating effect on judgments, contracts or arrangements affected by it (cf SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at 196-197 [15]-[17]). However, absent a claim for deceit, a mere allegation of fraud does not give rise to a cause of action.

73 Secondly, the Defendant submitted that the allegations made were highly embarrassing. An allegation in the nature of fraud must be pleaded with specificity and particularity: Banque Commerciale SA En Liquidation v Akhil Holdings Limited at 285; Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 at 693, 700; Rules 15.3 and 15.4 UCPR. The Defendant submitted that paragraphs 438 to 440 of MFI1 manifestly failed to comply with these requirements.

74 The Defendant pointed to the words “by reason of the facts pleaded above” in paragraph 438, which did not refer the reader to any specified part or parts of the 404 paragraphs which constituted the recital of events in MFI1. It was submitted that the pleading was embarrassing and that nothing contained in paragraphs 438-440 of MFI1 overcame this problem.

75 Finally, the Defendant submitted that the claim articulated in the particulars to paragraph 438 was insufficient to make good an allegation of fraudulent conduct.

76 The Plaintiff submitted that “fraud unravels everything”, citing the decision of Denning LJ in Lazarus Estates Limited v Beasley [1956] 1 QB 702 at 712-713, so that it was open to him to advance a cause of action based upon alleged fraudulent conduct. He emphasised that this claim was an action on the case, citing Northern Territory v Mengel [1996] 185 CLR 307. He submitted that this claim was not a proper subject for determination at an interlocutory stage given that there were contestable issues of fact and law involved.

77 The Plaintiff submitted that the Defendant had ample notice of the nature of the claim he was bringing, and its particulars, from the proposed Amended Statement of Claim so that, in his submission, the pleading was not embarrassing.

Action on the Case - Breaches of Protected Disclosures Act 1994

78 The Plaintiff claims that certain officers of the Defendant terminated his employment substantially in reprisal for disclosures allegedly made by him, and that this constituted a breach of the Protected Disclosures Act 1994.

79 The Defendant submitted that leave ought not be granted for this claim to be brought for two reasons. Firstly, the Defendant submitted that no reasonable cause of action is disclosed. The Protected Disclosures Act 1994 does not confer any civil right of action in respect of breaches of the Act. Rather, it creates a summary offence which is committed where a person takes detrimental action against another in reprisal for the making of a protected disclosure: s.20(1) Protected Disclosures Act 1994.

80 Secondly, the Defendant submitted that the Plaintiff had previously brought criminal prosecutions against John Ingleson, Roger Layton, Neil Morris, John Niland and Greg Whittred, with these criminal prosecutions being withdrawn and dismissed in the Downing Centre Local Court on 11 February 2005 (Exhibit 1). The Defendant submitted that the attempt to revive the earlier allegations by way of a civil action constituted an abuse of process of the Court: Rogers v The Queen (1994) 181 CLR 251 at 255, 280; Hunter v Chief Constable of the West Midlands Police [1982] AC 529. The Defendant emphasised that the two-year time limit under s.20(3) of the Act had long since expired.

81 Thirdly, the Defendant submitted that the proposed pleading was embarrassing. It was submitted that the Plaintiff’s central (and serious) allegation (at paragraph 444) was that the termination of his employment was substantially in reprisal for his making the disclosures alleged, but that this is stated as a conclusion, unsupported by any specification of the facts and matters said to give rise to it. The Defendant submitted that the Plaintiff’s position is not assisted by reference to paragraphs 367-377 of MFI1 (under the heading “Decision to Terminate the Plaintiff’s Employment”) which concern the alleged termination of employment, but do not articulate any links between the alleged disclosures by the Plaintiff and the alleged directive or decision not to renew his contract. The Defendant submitted that the allegation is couched in such vague and general terms that it cannot know the words or conduct alleged to constitute the directive relied on.

82 The Defendant relied upon the decision of the High Court of Australia in Byrne v Australian Airlines Limited [1995] 185 CLR 410 at 424, 459-462 in support of the argument that no reasonable cause of action was disclosed in the Plaintiff’s attempt to find a civil remedy for alleged breaches of the Protected Disclosures Act 1994.

83 The Plaintiff submitted that his claim under this heading was an action on the case arising from breaches of the Protected Disclosures Act 1994. He relied upon Northern Territory v Mengel. The Plaintiff submitted that he ought not be shut out from advancing this cause of action, as there were contestable issues of law and fact which ought be determined at the trial stage. He sought, as well, to rely upon Byrne v Australian Airlines Limited at 427 in support of this claim.

84 The Plaintiff submitted that he ought not be prevented from bringing this civil claim because he had earlier brought criminal proceedings against a number of persons for alleged breaches of the Protected Disclosures Act 1994. He submitted that those prosecutions were withdrawn, with no further evidence being offered, and that the Local Court made no findings with respect to them. He submitted that no abuse of process had been established which ought prevent from bringing his civil claim under this heading.

85 The Plaintiff disputed the Defendant’s submission that the pleadings were embarrassing. He contended that the proposed Amended Statement of Claim disclosed all that the Defendant required to understand the claim brought against it in this respect.

The Breach of Statutory Duty Claim

86 This claim appears to proceed on the basis that, had the Defendant complied with its asserted obligations under the Protected Disclosures Act 1994 to properly investigate the allegations made by the Plaintiff, and to protect him from reprisals inflicted on him because of his disclosures, the detrimental action subsequently taken against him would not, or may not, have been taken (paragraphs 446-449).

87 The Defendant submitted that the principal difficulty with this claim is that it arises from the allegation at paragraph 444 of MFI1, that the actions taken by officers of the Defendant in allegedly terminating the Plaintiff’s employment were actions taken in reprisal for disclosures which the Plaintiff is said to have made. The Defendant submitted that this allegation:

(a) impermissibly attempts to revive matters agitated in criminal proceedings which have now been disposed of;

(b) discloses no reasonable cause of action and no private civil action is available for an alleged breach of the Protected Disclosures Act 1994 : Byrne v Australian Airlines Limited ;

Protected Disclosures Act 1994

88 The Defendant submitted that there are further difficulties with the manner in which this claim is pleaded. For example, the Defendant submitted that the causal link which the Plaintiff has attempted to articulate in the first two particulars to paragraph 447 fails to disclose any plausible causal nexus at all. The contention appears to be that, in some unspecified way, the complaint made by the Plaintiff on 30 May 2001 would, if properly investigated, have ascertained his employment status by resulting in either his promotion to a more senior fixed-term position, or the conversion of his contract into a continuing one. Yet, the Defendant submitted that on the Plaintiff’s own case as set forth in the first particular, the complaint of 30 May 2001 did not specifically raise the question of whether the Plaintiff’s position was a project of limited duration. The Defendant submitted that, having regard to paragraphs 325 to 327, the complaint seems not to have dealt with anything remotely resembling that question. Further, the Defendant submitted that one of the Plaintiff’s suggested outcomes, promotion to a more senior fixed-term position, could have done nothing to protect him against the decision not to renew his contract of which he now complaints.

89 The Defendant submitted that the fourth particular to paragraph 447 disclosed no comprehensible causal link to the breaches of the Protected Disclosures Act 1994 which are alleged. It is not explained how the revelation of the unspecified “improper conduct” of Professors Layton, Birkett and Bradley there referred to could have any effect on the Plaintiff’s position.

90 The Defendant submitted further that the pleadings are embarrassing because they fail to specify material facts relevant to the allegation of breaches of the Protected Disclosures Act 1994, and they fail to specify the material facts relevant to causation of loss.

91 The Plaintiff submitted that leave ought be granted to press this cause of action. He submitted that it has not been demonstrated, in accordance with the General Steel test, that the cause of action was not tenable. Insofar as there were contestable issues of law and fact, he submitted that the matter ought proceed to trial.

92 He submitted that the termination of the criminal proceedings gave rise to no issue estoppel or res judicata, and that it was not an abuse of process for him to bring civil proceedings against the background of an abandoned criminal prosecution for breaches of the Act.

93 The Plaintiff submitted that the pleadings were not embarrassing and that the Defendant was provided with a clear statement of the case brought against it in this respect.

The Common Law Deceit Claim

94 The Defendant noted that the claim for deceit rests on two central allegations of fact:

(a) that Professor Whittred represented that the position of Executive Director-MBT would be advertised as soon as possible and filled in accordance with the Defendant’s policy (paragraphs 452, 454); and

95 The Defendant submitted that the claim is not logically capable of giving rise to any action in deceit and that leave ought not be granted for it to be brought.

96 The Defendant submitted that there is no evident or necessary inconsistency between the two allegations of fact referred to at [94] above. It was submitted that an intention to fill the position of Executive Director-MBT in accordance with the Defendant’s policy is not inconsistent (and certainly not to the point of being wilfully or knowingly misleading) with an intention not to employ the Plaintiff.

97 Secondly, and more significantly, the Defendant submitted that even if the representation relating to the position of Executive Director-MBT was false and was made with knowledge of its falsity (which was denied), it could not have given rise to any loss. It was submitted that the only reliance which the Plaintiff could conceivably have placed on the representation was to have taken it into account in applying for the position of Executive Director-MBT; yet it was not alleged that the mere fact of applying for the position caused him any actionable damage.

98 The Defendant submitted that there was a further difficulty with the pleadings. The representation relating to the position of Executive Director-MBT was alleged to have been made from January to mid-February 2002. A further representation (alleged in paragraph 456) to the effect that no changes were planned for the MBT program pending a review, was alleged to have been made on 16 February 2002. The Defendant submitted that, whatever impression these representations conveyed in respect of the Plaintiff’s prospects of ongoing employment with the Defendant, the Plaintiff must, on his own case, have been disabused of it immediately thereafter. The Defendant submitted that, by 21 February 2002, the Plaintiff had been notified that his contract would not be renewed (paragraph 151), and on 27 February 2002, he was directed to take his annual leave prior to 31 March 2002 and was told that his last day in the workplace would be 1 March 2002 (paragraph 170).

99 The Plaintiff submitted that leave ought not be refused to bring a cause of action in common law deceit. He submitted that there were debatable and contestable issues at a hearing on the merits. He disputed the Defendant’s construction (at [96] above) that there was no inconsistency between the allegations of fact which formed part of the pleading of this claim.

The Negligence Claim

100 The Plaintiff seeks damages for breach of a duty of care said to be owed to him by the Defendant.

101 The Defendant submitted that the Plaintiff’s claim discloses no reasonable cause of action. The Defendant submitted that, on the case pleaded, the Plaintiff cannot establish that the Defendant owed him any duty to prevent the infliction of the various kinds of losses which he claims, namely (paragraph 469):

(a) denial of the benefits of the Plaintiff’s contract with the Defendant;

(b) harm to the professional standing and reputation of the Plaintiff;

(c) economic loss; and

102 The Defendant submitted that claimed losses (a) and (c) ought be considered together as they both appear to raise a claim of pure economic loss. On the facts pleaded, the Defendant submitted that there was no duty on the part of the Defendant to prevent the infliction of a loss of that kind in this case. The sole basis on which it is pleaded was that the Defendant owed the Plaintiff a duty of care by reason of the employment relationship between the Plaintiff and the Defendant (paragraph 459).

103 The Defendant submitted, however, that the only duty of care recognised by the law as arising from the relationship of employer and employee is the employer’s duty to take care for the safety of employees to prevent them from danger: O’Connor v Commissioner for Government Transport (1959) 100 CLR 225 at 229; Mihaljevic v Longyear (Australia) Pty Limited (1985) 3 NSWLR 1 at 10-11.

104 The Defendant relied on Reid v Rush & Tomkins Plc [1990] 1 WLR 212 at 221, and submitted that, unless there is some special feature, the mere existence of an employment relationship does not give rise to a duty on the employer to protect an employee from the infliction of purely economic loss. The Defendant submitted that the pleadings disclose no reasonable cause of action because there is no duty of care to prevent the type of loss alleged.

105 Claimed loss (b) at [101] above concerns damage to reputation and professional standing. The Defendant submitted that no duty lies in respect of the negligent infliction of loss of this kind. It was submitted that a series of decisions has established that, where a plaintiff claims damages for injury to reputation by reason of what was communicated about him or her, the plaintiff’s remedy lies in defamation, and he or she cannot sue in negligence: Sattin v Nationwide News Pty Limited (1996) 39 NSWLR 32 at 44-45; Sullivan v Moody [2001] 207 CLR 562 at 580-581 [54]; Gacic v John Fairfax Publications Pty Limited [2005] NSWSC 1210 at [42]. The Defendant submitted that the basis of the Plaintiff’s claim for damage to reputation in the present case is obscure. It was submitted that paragraph 469 of the proposed Amended Statement of Claim does not specify how the damage is said to have occurred or what comprises it. The Defendant submitted, however, that to the extent it is based on anything allegedly communicated about the Plaintiff, it cannot succeed.

106 Loss (d) at [101] above is alleged to be psychiatric harm in the nature of an anxiety/depressive disorder. The Defendant submitted that a duty of care to prevent the occurrence of harm in the form of psychiatric illness would only arise if the Defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care was not taken: s.32(1) Civil Liability Act 2002. In the present case, the Defendant submitted that the relevant facts appear to be that certain complaints made by the Plaintiff were not properly investigated (paragraph 465) and that this caused the Plaintiff to suffer from an anxiety/depressive disorder (paragraph 469). The causal link between these two events is not specified in the pleading. However, the Defendant assumed for the purpose of argument, that the asserted link is that the alleged failure properly to investigate the Plaintiff’s complaints was a cause of the decision not to renew his contract, which decision would not have been taken had the complaints been properly investigated, and that this decision somehow led to the Plaintiff suffering psychiatric harm. In those circumstances, the Defendant submitted that it could not have been foreseen that a person of normal fortitude would suffer a recognised psychiatric illness had reasonable care not been taken.

107 The Defendant emphasised two matters in this respect. Firstly, the “circumstances of the case” which the legislature considered relevant to the s.32(1) test were, with one exception, remote from the present case. By reference to the circumstances in s.32(2) Civil Liability Act 2002, the Defendant submitted that there were not present in this case the existence of a sudden shock, the witnessing of a person being killed, injured or put in peril or the existence of a relationship between a plaintiff and the person being killed, injured or put in peril. Only the fourth circumstance, a pre-existing relationship between the Plaintiff and the Defendant, was present in this case. The Defendant submitted, however, that the relationship of employer and employee was one which it was open to the Defendant to bring to an end, either by not renewing the Plaintiff’s contract or by terminating the contract in accordance with its terms.

108 The Defendant submitted that the circumstances in which Courts have recognised a duty to prevent the infliction of purely psychiatric harm have been narrowly confined. It was submitted that, in the workplace context, the mere fact that a person was an employee, or that psychiatric harm was predictable, does not lead to a conclusion that such harm is reasonably foreseeable: Nationwide News Pty Limited v Naidu (2007) 71 NSWLR 471 at 477-478 [20]-[24]. Rather, the Defendant submitted, the Courts have emphasised the need to examine what it is that the employee has undertaken to do, and the manifestation of any warning sign that psychiatric harm might eventuate: Koehler v Cerebos (Australia) Limited [2005] 222 CLR 44 at 57-58 [35]-[36].

109 In the present case, the Defendant submitted that the suggested proximate cause of harm (the failure to renew the Plaintiff’s contract) was a possibility inherent in the very nature of the employment relationship. The Defendant submitted that the fact (which must be assumed in the Plaintiff’s favour on this application) that the Plaintiff’s employment would have continued had his complaints been properly investigated, failed to grapple with the circumstance that the possibility of the Plaintiff’s employment being brought to an end by the Defendant at some future point would always have remained. Further, the Defendant submitted that it was not suggested in the pleading that there was any warning sign which ought to have alerted the Defendant to the risk that the failure to renew his employment would have led to the Plaintiff suffering psychiatric harm. The Defendant submitted that paragraphs 470 and 471 of MFI1 did not assist the Plaintiff on this application, with the matters contained in paragraph 470 being clearly irrelevant to the Plaintiff’s situation and the allegation in paragraph 471 being vague and general without identifying any particular sign of harm.

110 Further, the Defendant submitted that the pleadings in relation to this claim are embarrassing. Firstly, because they fail to specify material facts relevant to the scope of the duty alleged. Secondly, because they fail to specify material facts relevant to the breach of the duty alleged and, thirdly, because they fail to specify material facts relevant to the damage alleged. The Defendant relied upon Yovicherich v Royal Australian and New Zealand College of Radiologists [2005] NSWSC 1208 at [33]-[37].

111 The Defendant submitted that the proposed Amended Statement of Claim does not particularise the components of any damage suffered by the Plaintiff in relation to the negligence claim, which should be disallowed.

112 With respect to the negligence claim, the Plaintiff submitted that there were contestable matters of law and fact so that the claim ought proceed to final hearing. In general terms, he sought to derive support from my judgment in Priest v State of New South Wales [2006] NSWSC 12. With respect to claimed loss (b) at [101] above concerning damage to reputation and professional standing, the Plaintiff sought to rely upon the decision of Byrne J in Quinn v Gray [2009] VSC 136. In response to the Defendant’s submissions made by reference to Koehler v Cerebos (Australia) Limited and Nationwide News Pty Limited v Naidu, the Plaintiff sought to derive assistance from cases involving loss of chance.

113 The Plaintiff submitted that the pleadings were not embarrassing and that no breach of the rules of pleading had been established.

The Misfeasance In Public Office Claim

114 Paragraphs 472-488 of the proposed Amended Statement of Claim relate to misfeasance in public office.

115 The Defendant divided these paragraphs into four allegations. The allegations in paragraphs 473 to 476 relate to disclosures said to have been made by Ms Margaret Love, who is not a party to these proceedings. The Defendant submitted that these allegations have no relevance to these proceedings and are embarrassing and should be disallowed or struck out: Shelton v National Roads and Motorists Association Limited at [8].

116 The second allegation appears in paragraphs 477-484 where it is alleged that Professor Ingleson, the Protected Disclosures Co-Ordinator of the Defendant, learned of certain complaints made by the Plaintiff in relation to the 2002 University of New South Wales Budget and proceeded to ensure the termination of the Plaintiff’s contract of employment.

117 The Defendant submitted that the elements of the tort of misfeasance in public office should be kept in mind, requiring proof of one of either (a) an intention to cause harm to the Plaintiff, or (b) an act done with knowledge of, or reckless indifference to, the fact that it is invalid or beyond power and would be likely to cause injury to the Plaintiff: Northern Territory v Mengel at 347-348; McKellar v Container Terminal Management Services Limited (1999) 165 ALR 409 at 459 [256].

118 The Defendant submitted, with respect to element (a) at [117] above, that paragraph 483 pleaded a bare conclusion that Professor Ingleson acted “with the intent to cause harm to the Plaintiff by denying to him the benefits of his contract with the University and to harm the professional standing and reputation of the Plaintiff”. No facts and matters are specified to support the allegation of intention to harm. Paragraph 479 does not assist the Plaintiff, given the absence of particulars of what was said to have been discussed. The Defendant submitted that the pleading manifestly failed to comply with the requirements of rule 15.4 UCPR.

119 With respect to element (b) at [117] above, the Defendant submitted that the only acts identified are those contained in paragraphs 480-481. Other than the statement in paragraph 480, “in the manner described in the facts pleaded above”, no specification is given as to what are said to be the facts and matters constituting interference with the Plaintiff’s contractual relationship or other matters bearing upon this part of the claim. The Defendant submitted that this is a significant issue, and that the Defendant ought not be left to sift through the narrative in an attempt to piece together the material facts which might support it.

120 The third allegation appears in paragraphs 485 and 486 and involves allegations against the Council of the Defendant. It is not alleged that the Council of the Defendant itself performed an invalid or unauthorised act, nor is it alleged that the Council acted with an intention to harm the Plaintiff. Paragraph 486 alleges that the Council “took no action to correct the situation”. As a result, the Defendant submitted that the claim disclosed no reasonable cause of action. The Defendant further submitted that the allegations have no apparent relevance to a claim for misfeasance in public office and are embarrassing.

121 The fourth allegation appears in paragraphs 487 and 488 where it is alleged that Ms Carol Kirby, the University of New South Wales solicitor, having knowledge of the conduct of Professor Ingleson, failed to address it and “involved herself personally in the legal defence of Professor Ingleson on charges that he had breached the Protected Disclosures Act”.

122 The Defendant submitted that these paragraphs are incapable of raising any case of misfeasance in public office and are liable to be struck out. The Defendant submitted that the allegations are vague, general and embarrassing because they fail to specify the facts relevant to the alleged knowledge.

123 The Plaintiff submitted that the misfeasance in public office claim ought be permitted to proceed to trial and that no basis had been established for leave to press the claim to be refused. He responded to the Defendant’s submissions concerning the elements of the tort and paragraphs 480-483 of MFI1 by observing that inferences could be drawn by the Court and that there was no problem with the pleadings. Further, it was submitted that the pleadings were not embarrassing with respect to this cause of action.

The Common Law Conspiracy Claim

124 The Plaintiff alleges that certain officers of the Defendant joined together in a conspiracy, by unlawful means, to terminate the Plaintiff’s employment. The Defendant submitted that the Plaintiff has failed to identify any facts or matters giving rise to the allegations, so that the pleading is embarrassing. The Plaintiff simply referred to the “the material facts pleaded above” (paragraph 489).

125 The Defendant submitted that allegations were pleaded as conclusions without any indication of facts and matters said to give rise to them.

126 The Defendant submitted that the Plaintiff was required to plead a clear and precise indication of the overt acts by which the alleged conspiracy is said to have been effected, the state of mind of the parties to it, and when and how each of the persons named became involved in the alleged conspiracy: Gunns Limited v Marr at [30]-[32]; McKellar v Container Terminal Management Services Limited at 444 [185]. The Defendant submitted that this has not been done.

127 The Defendant referred to the allegation in paragraph 494 that Professors Ingleson and Whittred and Mr Morris acted for the purpose of causing injury to the Plaintiff. This is an essential element to establish a claim for conspiracy: McKellar v Container Terminal Management Services Limited at 435 [135]. The Defendant submitted that no indication is given of the basis on which it is said that the named persons acted with intention to cause injury to the Plaintiff. The Defendant submitted that the pleading clearly failed to meet the requirements of pleading referred to by Bongiorno J in Gunns Limited v Marr at [57], so that vague allegations on very significant matters served to conceal speculative claims.

128 The Plaintiff submitted that the common law conspiracy claim ought be permitted to proceed to trial. He submitted that the pleadings with respect to this cause of action were not embarrassing.

Resolution of Competing Submissions

129 I now turn to the resolution of the issues before me.

The Breach of Contract Claim

130 The submissions with respect to this claim are referred to at [48]ff above.

131 The Plaintiff’s claim for damages for breach of contract appears in paragraphs 405-411 of the proposed Amended Statement of Claim. This cause of action was pleaded in the original Statement of Claim. However, the allegation in paragraph 129 of the original Statement of Claim only made reference to one employment contract.

132 Paragraphs 21-191 of the proposed Amended Statement of Claim fall under the heading “Contractual Relationship between the Plaintiff at the UNSW”. These 170 paragraphs contain a narrative of events that the Plaintiff alleges occurred during the period of February 1998 and April 2003.

133 The proposed Amended Statement of Claim alleges breach of three independent employment contracts. It also alleges a fourth offer of employment by the Defendant to the Plaintiff. Paragraphs 21-71 follow a heading “First Contract of Employment”. Paragraph 26 of MFI1 provides that “The offer made by the University in its letter of 5 February 1998 stated that the plaintiff’s appointment as Business Manager was to be a ‘fixed term non renewable appointment’ which would continue to 16 January 2002”.

134 Paragraphs 72 to 113 follow a heading “Second Contract of Employment” provides that “On 15 December 2000, Mr Jeff Bateman, Director of Human Resources, wrote to the plaintiff offering him a ‘fixed term appointment as ‘Business Manager/Deputy Director’ in Graduate Programs in Business and Technology’.” This is the second alleged contract of employment.

135 Paragraphs 114 to 133 follow a heading “Third Contract of Employment” (with some additional headings appearing in this section of the draft pleading) provides that “by way of letter dated 24 July 2001, the Defendant purported to offer the plaintiff a further fixed term appointment as Deputy Director in the Graduate Programs in Business and Technology”. This is the third alleged contract of employment.

136 Paragraphs 134 to 150 follow a heading “Fourth Offer made by the University to the Plaintiff”. Paragraph 135 provides that “by way of letter dated 19 December 2001, the University offered the plaintiff a further fixed term contract of employment”.

137 Paragraphs 151 to 191 continue to refer to a variety of matters before one comes to the end of the 21-page recital, comprising 170 paragraphs, under the general heading “Contractual Relationship between the Plaintiff and the UNSW”. MFI1 then moves to paragraphs 192-377 under the heading “Financial Mismanagement and Maladministration at the UNSW” (25 pages) and then paragraphs 378-404 under the heading “Conduct of the Parties Following Purported Termination” (four pages).

138 Paragraphs 405-497 then appear under the heading “Causes of Action” (14 pages).

139 The first cause of action is “Breach of Contract” at paragraphs 405-411.

140 It is appropriate to recite paragraphs 405-411, given submissions made about them:

“Breach of Contract

405 By reason of the facts pleaded above, the University of New South Wales breached the contract entered into between the plaintiff and the University on 18 December 2000 (the 'second contract of employment') by denying the plaintiff the benefits to which he was entitled under that contract.

406 In the alternative, by reason of the facts pleaded above, the University of New South Wales breached the contract entered into between the plaintiff and the University on 24 July 2001 (the 'third contract of employment') by denying the plaintiff the benefits to which he was entitled under that contract.

407 In the alternative, by reason of the fact that the position which was offered to the plaintiff in the letter of offer dated 19 December 2001 was not a 'project of limited duration' in the terms of the UNSW (General Staff) Enterprise Agreement 2000', the term of that contract which purported to limit the period of employment of the plaintiff to 31 March 2002 was not a lawful term of the contract.

408 If a contract was formed between the University of New South Wales and the plaintiff by virtue of the letter of offer from the University dated 19 December 2001, by reason of the facts pleaded above, the University breached that contract from 1 April 2002 onwards denying the plaintiff the benefits to which he was entitled under that contract.

409 In the alternative, by reason of the facts pleaded above, in particular the conduct of Professor Whittred from 21 February 2002 onwards, as of 4 March 2002 the University waived the right which it would otherwise have had pursuant to the relevant contract with the plaintiff not to pay the plaintiff in accordance with the terms of contract if the relevant services which the plaintiff would otherwise have provided to the University were not so provided from 31 March 2002 onwards.

410 By reason of the facts pleaded above, the University of New South Wales breached the relevant contract between the plaintiff and the University by failing to ensure that senior managers of the UNSW, including but not limited to, Dr John Toohey, Professor Mark Wainwright, Professor Tim Hesketh, Professor Roger Layton, Professor Bill Birkett, Mr Jeff Bateman, Ms Lyn Charlesworth, Mr Neil Morris, Professor John Ingleson, Professor John Niland, Professor Greg Whittred, Professor Rory Hume and Ms Carol Kirby complied with their obligations under the UNSW Code of Conduct.

411 By reason of the facts pleaded above, the University of New South Wales breached the relevant contract between the plaintiff and the University by conducting itself in a manner which damaged and/or destroyed the relationship of confidence and trust between the parties without reasonable cause.”

141 The Plaintiff has used the pleading device involving the formula “by reason of the facts pleaded above” in paragraphs 405, 406, 407, 409, 410 and 411. A number of these claims are said to be in the alternative. However, no reference is made to which of the “facts pleaded” in the preceding 404 paragraphs are said to relate to each claim, or why they amount to a breach of contract or what benefits the Plaintiff claims he was denied under the contracts.

142 The Defendant, and the Court, should not be required to sift through a narrative and then a list of complaints, for the purpose of trying to identify the precise manner in which the Plaintiff claims for breach of contract: Wearne v Southern Cross University at [27]. Material facts are not pleaded in a manner which complies with Kirby v Sanderson Motors Pty Limited. In my view, this is a clear case of embarrassing pleadings so that the Plaintiff should not have leave to file his claim in this form.

143 The Defendant advanced factual submissions concerning the breach of contract claim, contending that the Plaintiff ought not be given leave to replead this claim. It was submitted that the claims were time barred. In my view, there are contestable issues affecting the limitation point, so that the Court should not shut the Plaintiff out from bringing this claim upon that basis: Wardley Australia Limited v State of Western Australia at 533.

144 The Defendant advanced other submissions (at [54]) challenging the factual substratum of this claim. I am not persuaded that these matters are sufficiently clear cut and fatal to the Plaintiff’s claim that he should be precluded from repleading his claim for breach of contract.

145 I will allow the Plaintiff an opportunity to replead his claim for breach of contract. However, it will be necessary for him to comply with the rules of pleading, lest he be met with further arguments of the type advanced on this application.

The Breach of the TPA Claim

146 The submissions with respect to this claim are referred to at [58]ff above.

147 The Plaintiff’s claim for damages for breach of the TPA appears in paragraphs 412-424 of the proposed Amended Statement of Claim. This cause of action was pleaded in the original Statement of Claim. The original Statement of Claim pleaded breach of ss.51A and 52 TPA. The proposed Amended Statement of Claim pleads breach of ss.51A, 51A(2), 52, and 53B.

148 Paragraph 413 of MFI1 pleads that:

“At all relevant times, including but not limited to the period during which the plaintiff was in actual employment at the University, the University represented to the plaintiff that it would take such care as was reasonable to ensure that officers of the UNSW would comply with all policies of the University of New South Wales, including the UNSW Code of Conduct.
Particulars:
The representations made to the plaintiff include the following:

Publication of the UNSW Code of Conduct on the UNSW website

Publication inter alia of University policies relating to human resources and to the making of ‘protected disclosures’ on the UNSW website

Representations made to the plaintiff during the selection process for, and the negotiation of the contract of employment for, the position of Business Manager, Office of Business and Technology, in and/or around December 1997, in terms that the University of New South Wales was a ‘good employer’ and that the University of New South Wales was a ‘good place to work’

Representations made to the plaintiff following the repudiation of his contract of employment by the University that the allegations which he had made in regard to financial mismanagement at the University (including the true impact of the UNSW 2002 ‘transitional budget’), and the conduct of Professors Layton, Birkett, Whittred and Ingleson had been properly investigated and found to have been without foundation.”

149 I accept the Defendant’s submissions summarised at [59]-[64] and [66] above concerning the TPA claim. Paragraph 413 is ambiguous, vague and general. It does not provide relevant particulars as required by Rule 15.3 UCPR. In Northam v Favelle Favco Holdings Pty Limited at 5-6, Bryson J said that “what is referred to must be clearly stated showing, as appropriate, when and where an event happened, who participated, what was said, what was the relevant effect of any document and so forth”. The Plaintiff has not done this.

150 Nor has the Plaintiff complied with the pleading requirements in a TPA claim referred to by French J in Bond Corporation Pty Limited v Thiess Contractors Pty Limited at 222.

151 The pleadings in relation to the breach of the TPA are clearly embarrassing.

152 Leave will not be granted to plead the TPA claim in this form.

153 The Defendant submitted that the TPA claim is time barred so that the Plaintiff should be refused leave to replead this claim. Once again, I consider that there are contestable issues on this topic so that the Plaintiff ought not be precluded, at this early interlocutory stage, from formulating his TPA claim upon a limitation ground: Wardley Australia Limited v State of Western Australia.

154 I will give the Plaintiff an opportunity to replead his TPA claim. However, once again, it will be necessary for him to comply with the rules of pleading.

Breach of the FTA

155 The submissions with respect to this claim are referred to at [68]ff above.

156 Paragraphs 425-437 of the proposed Amended Statement of Claim raise the same allegations as those alleged in respect of the TPA claims. For reasons expressed concerning the TPA claims, the FTA pleadings are embarrassing and leave will not be granted to plead a claim in this form.

157 For reasons expressed concerning the TPA claims, I do not propose to preclude the Plaintiff from repleading his FTA claim on a limitations basis.

158 The Plaintiff will have an opportunity to replead, in proper form, his FTA claim.

Action on the Case - The Fraudulent Conduct Claim

159 The submissions with respect to the claim are referred to at [71]ff.

160 The fraudulent conduct claim is a new cause of action pleaded for the first time in the proposed Amended Statement of Claim. The Plaintiff pleaded that the Defendant engaged in fraudulent conduct that was designed to deny the Plaintiff the benefits to which he was entitled under his employment contract.

161 The pleading does not comply with this requirement. There is no freestanding cause of action for fraudulent conduct. Fraud may be an element of other causes of action, but there is no cause of action for damages for conduct that is fraudulent. Absent a claim for deceit, a mere allegation of fraud does not give rise to a cause of action: SZFDE v Minister for Immigration and Citizenship at 196 [15]- [17]. The Plaintiff has brought a separate claim for common law deceit to which I will turn shortly.

162 It is necessary to apply the General Steel test. The pleading ought be struck out if the Court is satisfied that even if all of the allegations of fact set out in the pleading are proved, those facts would not establish the essential ingredients of a cause of action.

163 I am satisfied that the pleaded fraudulent claim discloses no reasonable cause of action. The Plaintiff’s general reliance upon Lazarus Estates Pty Limited v Beasley does not assist him in this respect. I do not think that anything said in Northern Territory v Mengel assists the Plaintiff to bring and maintain this purported cause of action.

164 In any event, there are further deficiencies with the pleading. Paragraph 438 of MFI1 commences with the words “By reason of the facts pleaded above”. The first 405 paragraphs of the proposed Amended Statement of Claim contain a series of statements and asserted facts that seem to relate, in general terms, to all of the causes of action in the proposed Amended Statement of Claim. The pleadings are set out as a narrative of events, rather than material facts. None of the first 405 paragraphs specify that they relate to the fraudulent conduct claim. The position is not improved by examining paragraphs 438-440 which relate specifically to this cause of action.

165 Fraud must be pleaded specifically and with particularity: Rule 14.14 UCPR; Banque Commerciale at 285; Rajski v Bainton (1990) 22 NSWLR 125 at 135-6.

166 It is for the Plaintiff to identify material facts, and identify how they relate to the particular causes of action alleged so the case can go forward in accordance with s.56 Civil Procedure Act 2005 in a way that is just, quick and cheap. The Court, and the Defendant, should not be required to trawl through a long narrative of events to try and find what might be relied on in support of the cause of action.

167 The Plaintiff has not pleaded this claim specifically or with particularity.

168 I am satisfied that this pleading is embarrassing so that leave will not be granted to bring a claim in those terms. Further, I am satisfied that no reasonable cause of action is disclosed so that the Plaintiff ought not be granted leave to replead this claim.

Action on the Case - The Breach of the Protected Disclosures Act 199 4 Claim

169 The submissions concerning this claim are summarised at [78]ff above.

170 The original Statement of Claim contained a claim for breach of the Protected Disclosures Act 1994.

171 Section 20(1) Protected Disclosures Act 1994 provides that a:

“… person who takes detrimental action against another person that is substantially in reprisal for the other person making a protected disclosure is guilty of an offence.”

172 Section 20(2) provides that “proceedings for an offence against this section may be instituted at any time within 2 years after the offence is alleged to have been committed”.

173 The fact that the Plaintiff brought criminal proceedings which were effectively withdrawn and dismissed does not prevent a civil action being brought with respect to the same subject matter: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 634-636. There were no findings or determinations made in the Local Court. The Magistrate recorded that no further evidence was offered and dismissed the charges. I am not satisfied that the bringing of a civil claim against the background of an unsuccessful criminal prosecution constitutes an abuse of process.

174 The Protected Disclosures Act 1994 does not confer any civil right of action in respect of breaches of the Act. In Byrne v Australian Airlines Limited, Brennan CJ, Dawson and Toohey JJ said at 424:

“A cause of action for damages for breach of statutory duty arises where a statute which imposes an obligation for the protection or benefit of a particular class of persons is, upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage of a kind against which the statute was designed to afford protection. The question is one of the construction of the statute, although as Dixon J pointed out in O’Connor v S P Bray Ltd (1937) 56 CLR 464 at 477-478, an examination of the statute will rarely yield a necessary implication positively giving a civil remedy.”

175 I accept the Defendant’s submissions, by reference to Byrne v Australian Airlines Limited, that no reasonable cause of action is available to the Plaintiff under this heading. I am not persuaded that a ground of civil liability arises by implication where a person seeks to bring civil proceedings for an alleged breach of the Protected Disclosures Act 1994. In the absence of express conferral of a private cause of action in the Act, it may arise impliedly as a matter of statutory construction: Slivak v Lurgi (Australia) Pty Limited [2001] 205 CLR 304 at 316 [28]. However, no such implication arises in this case. Nor, in my view, does the cause of action arise as an action on the case. I am not persuaded that Northern Territory v Mengel assists the Plaintiff in this respect.

176 In any event, the pleadings in relation to this claim are embarrassing and should not be allowed to stand. I accept the Defendant’s submissions at [81] in this regard.

177 The pleaded claim does not disclose a reasonable cause of action. I do not propose to allow the Plaintiff leave to replead this cause of action.

The Breach of Statutory Duty Claim

178 The submissions with respect to this claim are referred to at [86]ff above.

179 The Plaintiff’s claim for damages for breach of statutory duty appear in paragraphs 445-451 of the proposed Amended Statement of Claim. This is a new cause of action pleaded for the first time in the proposed Amended Statement of Claim.

180 For reasons given at [173] above, I do not accept that the bringing of a civil action after the unsuccessful criminal prosecution constitutes an abuse of process.

181 I have determined at [175] above that no private cause of action arises, expressly or impliedly, where a breach of the Protected Disclosures Act 1994 is alleged. This reasoning applies directly to prevent a purported cause of action for breach of statutory duty. Applying the General Steel test, the Plaintiff ought not be permitted to advance a claim which is, as a matter of law, hopeless.

182 Rule 15.5 UCPR provides that it is necessary to give particulars of the facts constituting each breach of statutory duty. The pleading does not comply with this requirement, so that leave would not be granted for this reason alone.

183 The Plaintiff’s claim appears to operate on the basis that had the Defendant complied with its asserted obligations under the Protected Disclosures Act 1994 to properly investigate the allegations made by the Plaintiff and protect him from reprisals inflicted on him because of his disclosures, the detrimental action subsequently taken against him would not, or may not, have been taken. This pleading appears to substantially rely on the pleading in paragraph 444 of MFI1 which, I have already mentioned, is not pleaded with sufficient clarity and is embarrassing in its current form.

184 I do not propose to grant the Plaintiff leave to replead this claim.

The Claim for Common Law Deceit

185 The submissions concerning this claim are referred to at [94]ff above.

186 The Plaintiff’s claim for damages for deceit appears in paragraphs 452-458 of the proposed Amended Statement of Claim. This cause of action was pleaded under the heading “Deceptive Conduct by Officers of the UNSW” in the original Statement of Claim.

187 In Jeans v Cleary [2006] NSWSC 647, I said at [24]-[25]:

“24 The essential elements of the tort of deceit may be summarised in the following way (

Tresize v National Australia Bank Limited

(2005) 220 ALR 706, at 716 [38];

Integral Energy Australia v EDS (Australia) Pty Limited

[2006] NSWSC 600 at paragraph 3):

(a) a representation of fact (which can be as to the representor’s opinion or intention or the law) that is conveyed to the claimant by the representor’s words or conduct;

(b) knowledge on the part of the representor that the representation is false or, failing that, (a) the absence of a genuine belief that it is true or (b) recklessness as to whether it is true or false: Derry v Peek (1889) 14 App Cas 337; Banditt v The Queen (2005) 80 ALJR 421 at 422-3 (paragraph 2);

(c) an intention on the part of the representor that the claimant (or a class including the claimant) should act upon the representation;

(d) actions by the claimant in reliance upon the representation that were induced by the representation: Gould v Vaggelas (1985) 157 CLR 215; and

(e) damage as a result of that reliance.

25 The measure of damages in deceit will be based on the actual damage directly flowing from the fraudulent inducement:

Clark v Urquhart

(1930) AC 28 at 67-68. In an action for deceit, a plaintiff is entitled to recover as damages a sum representing the prejudice or disadvantage he has suffered in consequence of his altering his position under the inducement of the fraudulent misrepresentation made by the Defendant:

Toteff v Antonas

(1952) 87 CLR 647 at 650;

Gould v Vaggelas

at 220;

Jeans v Cleary

[2006] NSWCA 9 at paragraphs 32-34.”

188 I agree with the Defendant’s submission (at [96] above) that there is no evident or necessary inconsistency between the two allegations, that is, an intention to fill the position of Executive Director in accordance with the Defendant’s policy is not inconsistent with an intention not to re-employ the Plaintiff.

189 If the representation relating to the position of “Executive Director-MBT” were false (and were made with knowledge of its falsity), the only reliance that the Plaintiff could have placed on the representation is to have taken it into account in applying for the position of Executive Director. However, the Plaintiff has not alleged that the mere fact of applying for the position caused him any actionable damage.

190 The Defendant’s submission (at [98]) descends to a level of detail concerning the facts of the claim. I will not prevent the Plaintiff from seeking to replead his claim upon a contestable view of the facts.

191 This claim is not pleaded with sufficient clarity and is embarrassing in its current form. I will not grant leave to amend in accordance with the proposed pleading.

192 However, I will grant the Plaintiff leave to replead the claim in common law deceit. Whether the Plaintiff is in a position to advance a properly pleaded claim for relief of this type remains to be seen. The current pleading is seriously flawed. However, I will not shut the Plaintiff out from having an opportunity to do so.

The Negligence Claim

193 The submissions concerning the negligence claim are summarised at [100]ff above.

194 The Plaintiff claims damages for breach of a duty of care as a result of his employment relationship with the Defendant. The claim appears in paragraphs 459-471 of the proposed Amended Statement of Claim. This cause of action was pleaded under the heading “Breaches by the Defendant of its Duty of Care to the Plaintiff” in the original Statement of Claim.

195 The Plaintiff pleads that the scope of the Defendant’s duty of care includes an obligation by the Defendant to take all reasonable steps to ensure that all other employees complied with their obligations under the Defendant’s Code of Conduct in their dealings with the Plaintiff. The Plaintiff submitted further that the Defendant had a particular duty of care in relation to whistleblowers.

196 The law recognises a duty of care for the safety of employees so as to prevent them from danger of injury: Mihaljevic v Longyear (Australia) Pty Limited at 10-11; O’Connor v Commissioner for Government Transport at 259. Unless there is a special feature, the mere existence of an employment relationship does not give rise to a duty on an employer to protect an employee from the infliction of purely economic loss: Reid v Rush & Tomkins Plc at 221. The Plaintiff has not specifically pleaded a special feature.

197 The Plaintiff’s claim for harm to reputation and professional standing is not maintainable as a claim in negligence: Gacic v John Fairfax Publications Pty Limited at [42], [49].

198 The Plaintiff pleads that because certain complaints made by the Plaintiff were not properly investigated, this caused the Plaintiff to suffer from “an anxiety/depressive disorder”. The causal link between these two events is not specifically pleaded.

199 The circumstances in which Courts have recognised a duty to prevent the infliction of purely psychiatric harm have been narrowly confined. In Nationwide News Pty Limited v Naidu, Spigelman CJ said at [23] that in the workplace context, the mere fact that a person is an employee, or that psychiatric harm is predictable, does not lead to a conclusion that such harm is reasonably foreseeable. Rather, Courts have emphasised the need to examine what the employee has undertaken to do, and the manifestation of any warning sign that psychiatric harm might eventuate: Koehler v Cerebos (Australia) Limited at [35]-[36]; Nationwide News Pty Limited v Naidu at [14]-[26] and [60]. The Plaintiff did not plead that there were any warning signs that ought to have alerted the Defendant to the risk that the failure to renew the Plaintiff’s employment would have led to his suffering psychiatric distress.

200 Applying the General Steel test, I am satisfied that no reasonable cause of action in negligence can be advanced by the Plaintiff. I do not think that anything said in Priest v State of New South Wales assists the Plaintiff.

201 In any event, there are fundamental problems with the form and content of the pleading. In paragraph 465 of the proposed Amended Statement of Claim, the Plaintiff simply relies on “the facts pleaded above”. No particulars are provided regarding what the alleged failures comprised of and when they occurred. Nor is there an explanation given of the basis on which such failures, if proved, could give rise to a breach of duty. Pleadings in this form are inadequate to put the Defendant on notice as to the case it must meet in respect of the negligence claim.

202 Paragraph 469 alleges that the Plaintiff suffered damage “as a result of the breach” by the Defendant. There is no indication provided as to how the alleged breaches of duty caused the Plaintiff to suffer the damage identified. Nor are any particulars given as to the components of that damage.

203 These pleadings are conclusions and the Plaintiff does not indicate in the pleadings the facts and circumstances that the Plaintiff says give rise to the duty alleged. The failure to specify those matters makes it impossible for the Defendant to defend the allegation otherwise than by denying, in a general way, the existence of the duty alleged: Yovichevich v Royal Australian and New Zealand College of Radiologists at [33]-[37].

204 The pleadings in relation to the negligence claim are ambiguous, vague and too general, so as to embarrass the Defendant who cannot know what is alleged against him: Gunns Limited v Marr at [14]-[15].

205 The pleadings are embarrassing and disclose no reasonable cause of action. I do not propose to allow the Plaintiff to plead this cause of action in its current form. Nor will I grant the Plaintiff leave to replead a claim in negligence.

The Misfeasance in Public Office Claim

206 The submissions with respect to this claim are referred to at [114]ff above.

207 The Plaintiff’s claim for damages for misfeasance in public office appears in paragraphs 472-488 of the proposed Amended Statement of Claim. This cause of action was pleaded in the original Statement of Claim.

208 In Chan v Sellwood [2009] NSWSC 1335, Davies J at [41] identified the elements of this tort as follows:

“The elements of the tort of misfeasance in public office are:

(1) There is a public officer,

(2) who owes a public duty,

(3) which the public officer has breached,

(4) the breach of duty has caused loss or damage to the Plaintiff, and

(5) the public officer breached the duty with the intention of causing harm to the Plaintiff or with the knowledge that he or she was acting in excess of his or her powers.

See

Chapel Road v ASIC

[2006] NSWSC 1014 and

Tampion v Anderson

[1973] VR 715 at 720 noting that those cases included as part of the second element that there was a duty owed to the Plaintiff as a member of the public. In the light of the discussion by Macfarlan JA in

Leerdam

Leerdam v Noori

at [115] this would not appear to be a necessary aspect of the element.”

209 Paragraphs 472-476 of the proposed Amended Statement of Claim relate to Professor Ingleson’s alleged conduct in relation to disclosures made by a person not a party to these proceedings. These allegations have no relevance to the present proceedings. The making of irrelevant allegations is a factor that can make a pleading embarrassing within the meaning of the rules: Shelton v National Roads and Motorists Association Limited at [8].

210 Paragraphs 477-484 of the proposed Amended Statement of Claim allege that Professor Ingleson learned of certain complaints made by the Plaintiff and proceeded to ensure the termination of the Plaintiff’s contract of employment.

211 Paragraph 483 of the proposed amended statement of claim pleads “Professor Ingleson acted with malicious intent, viz, with the intent to cause ham to the plaintiff by denying to him the benefits of his contract with the University and to harm the professional standing and reputation of the plaintiff”. No specification is given as to the facts and circumstances relied on to support the allegation of an intention to harm contained in that paragraph. The allegation is not pleaded in a manner as to put the Defendant on notice of the case it must meet and no particulars are provided.

212 Rule 15.4 UCPR requires a party to proceedings to give particulars of any condition of mind that is relied on in a pleading. The pleadings in relation to the misfeasance in public office claim are inadequate to enable the Defendant to meet any allegation of intention to harm.

213 Paragraphs 485-486 of the proposed Amended Statement of Claim allege that the Defendant knew, or ought to have known, that the conduct of Professor Ingleson was unlawful and caused harm to the Plaintiff and that the Defendant took no action to correct the situation. It is not alleged that the Defendant itself performed an invalid or unauthorised act nor is it alleged that the Defendant acted with an intention to harm the Plaintiff. As a result, paragraphs 485-486 disclose no reasonable cause of action.

214 Paragraphs 487-488 allege that Ms Kirby “subsequently became fully aware of the conduct of Professor Ingleson and of some of the harm that had resulted to the plaintiff”. It is pleaded that Ms Kirby “involved herself personally in the legal defence of Professor Ingleson on charges that he had breached the Protected Disclosures Act 1994”.

215 The Plaintiff did not plead an intention by Ms Kirby to harm the Plaintiff nor did he plead that Ms Kirby performed an invalid or unauthorised act. There is no indication of what knowledge Ms Kirby had or how she acquired it, what she ought to have done having acquired the knowledge, how she involved herself personally and why such involvement might have amounted to misfeasance in public office.

216 I accept the Defendant’s submissions at [115] to [122] above. The pleadings are vague and too general, so as to embarrass the Defendant who cannot know what is alleged against him: Gunns Limited v Marr at [14]-[15].

217 I will not grant the Plaintiff leave to plead this claim in this form. The pleaded claim is defective in a variety of ways. It may be that the Plaintiff will not be able to plead, in accordance with the requirements of the law and pleading rules, a claim for misfeasance in public office. I will not, however, at this early interlocutory stage, make an order preventing him from attempting to do so.

The Common Law Conspiracy Claim

218 The submissions with respect to this claim are referred to at [124] above.

219 The Plaintiff’s claim for damages for common law conspiracy appears in paragraphs 489-497 of the proposed Amended Statement of Claim. This cause of action was pleaded in the original Statement of Claim.

220 The elements of the tort of conspiracy were summarised helpfully by Harrison J in Hamod v State of New South Wales (No. 12) [2009] NSWSC 242 in the following way at [182]-[183]:

“182 The tort of conspiracy may take two forms:

(a) An agreement or combination between two of more persons to commit a lawful act with the predominant purpose of injuring or damaging the plaintiff, and the act is carried out and the purpose achieved: McKernan v Fraser [1931] HCA 54; (1931) 46 CLR 343 at 362 per Dixon J; Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713 at 717 per Dixon J.

(b) An agreement or combination between two or more persons to commit an unlawful act with an intention to injure the plaintiff, and the act is carried out and the intention achieved: Williams v Hursey [1959] HCA 51; (1959) 103 CLR 30 at 78 and 122.

183 In either case the plaintiff must prove the following elements:

(a) a combination or agreement between two or more individuals (required for both types of conspiracy);

(b) an intent to injure the plaintiff (required for both types of conspiracy but must be shown as the predominant purpose for ‘lawful means’ conspiracy);

(c) pursuant to the combination or agreement and with the intention to injure, certain acts were carried out; and

(d) resulting loss and damage to the plaintiff.”

221 The Plaintiff alleges that Professors Ingleson, Whittred, Niland, Wainwright and Mr Morris joined together in a conspiracy, by unlawful means, to terminate the Plaintiff’s employment.

222 There is no identification of the material facts that give rise to the allegations. There is only a reference in paragraph 489 of the proposed Amended Statement of Claim to “the material facts pleaded above”.

223 I accept the Defendant’s submission at [125] to [127] above. The pleadings in relation to this claim consist of a series of vague allegations and conclusions. The pleadings are inadequate to notify the Defendant of the nature of the conspiracy case made against it. The Plaintiff was required, and failed, to provide a clear and precise indication of the overt acts by which the alleged conspiracy is said to have been effected, the states of minds of the parties to it, and when and how each of the persons named became involved in the alleged conspiracy: Gunns Limited v Marr at [30]-[32].

224 As a result, the pleadings are embarrassing, and defective in other respects, and should not be the subject of a grant of leave. I will not make an order refusing the Plaintiff leave to replead his claim under this heading. Whether the Plaintiff will be able to plead a proper claim for conspiracy remains an open question. At this early interlocutory stage, however, I will not deprive him of that opportunity.

Some General Closing Observations

225 I do not propose to grant the Plaintiff leave to amend in accordance with the proposed Amended Statement of Claim. In addition to the specific findings which I have made, I make the following general observations.

226 The proposed Amended Statement of Claim is beset by pleading problems. The pleadings should contain only a statement in summary form of the material facts. Instead, the document contains more than 400 paragraphs which intermingle pleadings of evidence and material facts.

227 There is no clear linkage by identification of material facts which are said to relate to particular causes of action.

228 It is incumbent on the Plaintiff to identify material facts, and to identify how they relate to the particular causes of action alleged, so that the case can go forward to achieve the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings: s.56 Civil Procedure Act 2005. The proposed Amended Statement of Claim does not permit that to occur.

229 The proposed Amended Statement of Claim fails to comply, in a variety of ways, with the functions of pleadings and with the UCPR as to substance and form of pleadings. It is not the function of the Court to draw or settle a party’s pleading. The Court is confined to the function of ensuring that pleadings are within the Rules and fulfil the functions for which they exist.

230 The document contained an abundance of extraneous material and is confusing at times and lacks clarity. The pleading is set in anecdotal form, rather than in a form that complies with pleading rules. The objectionable matter is so mingled with other matters that the pleading, as a whole, is embarrassing. I do not propose to allow leave to file the proposed Amended Statement of Claim: Turner v Bulletin Newspapers Co Pty Limited at 72, 87-88, 97-98; Gunns Limited v Marr at [57]-[58]; Fleet v Royal Society for the Prevention of Cruelty to Animals NSW and Ors.

Conclusion

231 In summary, I propose to:

(a) refuse the Plaintiff leave to file a pleading in the form of the proposed Amended Statement of Claim (MFI1);

(b) allow the Plaintiff an opportunity to replead his claims for breach of contract, breaches of the TPA, breaches of the FTA, common law deceit, misfeasance in public office and conspiracy;

Protected Disclosures Act 1994

232 The decision to allow the Plaintiff an opportunity to replead the causes of action referred to at [231](b) above, does not mean, of course, that a clear and identifiable basis for those claims has been demonstrated. It merely means that the Defendant has not satisfied me that the Court should take the exceptional step of preventing the Plaintiff from seeking to formulate properly pleaded claims, at this early stage of the litigation, if he is able to do so: State of New South Wales v Spearpoint [2009] NSWCA 233 at [26].

Costs

233 The Defendant has substantially, but not wholly, succeeded in the arguments falling for determination by me. The Plaintiff has not succeeded in obtaining leave to amend in accordance with his proposed pleading, but will have an opportunity to replead several of the causes of action.

234 The parties did not address the question of costs at the hearing. I propose to order the Plaintiff to pay 75% of the Defendant’s costs of the application. If either party wishes to argue for a more favourable costs order, I will give directions for written submissions to be furnished in that respect.

Ord e rs:

235 I make the following orders:

(a) I refuse leave to the Plaintiff to file the proposed Amended Statement of Claim (MFI1);

(b) I grant leave to the Plaintiff to replead claims for breach of contract, breaches of the Trade Practices Act 1974 (Cth) , breaches of the Fair Trading Act 1987 (NSW) , common law deceit, misfeasance in public office and conspiracy by way of an Amended Statement of Claim to be filed and served by 17 February 2010;

(c) I refuse the Plaintiff leave to replead claims for actions on the case (fraudulent conduct and breaches of the Protected Disclosures Act 1994) , breach of statutory duty and negligence;

(d) I order the Plaintiff to pay 75% of the Defendant’s costs of this application.

**********

18/12/2009 - The word "Plaintiff" changed to "Defendant" in the first line. - Paragraph(s) 233

CITATION:	McGuirk v The University of New South Wales [2009] NSWSC 1424 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	12 June 2009
JUDGMENT DATE :	17 December 2009
JUDGMENT OF:	Johnson J at 1
DECISION:	1. The Plaintiff is refused leave to file the proposed Amended Statement of Claim (MFI1). 2. The Plaintiff is granted leave to replead claims for breach of contract, breaches of the Trade Practices Act 1974 (Cth), breaches of the Fair Trading Act 1987 (NSW), common law deceit, misfeasance in public office and conspiracy by way of an Amended Statement of Claim to be filed and served by 17 February 2010. 3. The Plaintiff is refused leave to replead claims for actions on the case (fraudulent conduct and breaches of the Protected Disclosures Act 1994), breach of statutory duty and negligence. 4. The Plaintiff is ordered to pay 75% of the Defendant’s costs of this application.
CATCHWORDS:	PRACTICE AND PROCEDURE - application for leave to amend pleading - multiple claims - breach of contract - breaches of Trade Practices Act 1974 (Cth) - breaches of Fair Trading Act 1987 (NSW) - fraudulent conduct - breaches of Protected Disclosures Act 1994 - breach of statutory duty - common law deceit - negligence - misfeasance in public office - common law conspiracy - whether amendments so obviously futile that leave to amend should be refused - embarrassing pleadings - whether no reasonable cause of action disclosed - leave to amend refused on pleading grounds - leave to replead granted for certain causes of action
LEGISLATION CITED:	Civil Procedure Act 2005 Trade Practices Act 1974 (Cth) Fair Trading Act 1987 (NSW) Protected Disclosures Act 1994 Civil Liability Act 2002 Uniform Civil Procedure Rules 2005
CATEGORY:	Procedural and other rulings
CASES CITED:	Horton v Jones (No. 2) (1939) 39 SR(NSW) 305 Banque Commerciale SA En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 Dare v Pulham [1982] 148 CLR 658 Australian Competition and Consumer Commission v Fox Symes & Associates Pty Limited [2005] FCA 1071 Kirby v Sanderson Motors Pty Limited (2001) 54 NSWLR 135 Gunns Limited v Marr [2005] VSC 251 Meckiff v Simpson [1968] VR 62 Shelton v National Roads & Motorists Association Limited [2004] FCA 1393 Northam v Favelle Favco Holdings Pty Limited (Bryson J, 7 March 1995, BC9504276) Charlie Carter Pty Limited v Shop Distributive and Allied Employees Association (1987) 13 FCR 413 Trade Practices Commission v David Jones (Australia) Pty Limited (1985) 7 FCR 109 Beach Petroleum NL v Johnson (1991) 105 ALR 456 Rubenstein v Truth & Sportsman Limited [1960] VR 473 H 1976 Nominees Pty Limited v Galli (1979) 30 ALR 181 Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited & Ors [2008] NSWCA 243 White v Overland [2001] FCA 1333 Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 83 ALJR 951 Turner v Bulletin Newspapers Co Pty Limited (1974) 131 CLR 69 Fleet v Royal Society for the Prevention of Cruelty to Animals NSW and Ors [2005] NSWSC 926 Dey v Victorian Railway Commissioners (1949) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Webster v Lampard (1993) 177 CLR 598 Brimson v Rocla Concrete Pipes Limited (1982) 2 NSWLR 937 Agar v Hyde (2000) 201 CLR 552 Wickstead v Browne (1992) 30 NSWLR 1 Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1995-1997) 188 CLR 241 Preston v Star City Pty Limited [1999] NSWSC 1273 Wearne v Southern Cross University [2006] FCA 1033 McFarlane v Daniell (1938) 38 SR(NSW) 337 Wardley Australia Limited v The State of Western Australia [1992] 175 CLR 514 Bond Corporation Pty Limited v Thiess Contractors Pty Limited (1987) 14 FCR 215 Brown v Jam Factory Pty Limited (1981) 35 ALR 79 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 Lazarus Estates Limited v Beasley [1956] 1 QB 702 Northern Territory v Mengel [1996] 185 CLR 307 Rogers v The Queen (1994) 181 CLR 251 Hunter v Chief Constable of the West Midlands Police [1982] AC 529 Byrne v Australian Airlines Limited [1995] 185 CLR 410 O’Connor v Commissioner for Government Transport (1959) 100 CLR 225 Mihaljevic v Longyear (Australia) Pty Limited (1985) 3 NSWLR 1 Reid v Rush & Tomkins Plc [1990] 1 WLR 212 Sattin v Nationwide News Pty Limited (1996) 39 NSWLR 32 Sullivan v Moody [2001] 207 CLR 562 Gacic v John Fairfax Publications Pty Limited [2005] NSWSC 1210 Nationwide News Pty Limited v Naidu (2007) 71 NSWLR 471 Koehler v Cerebos (Australia) Limited [2005] 222 CLR 44 Yovicherich v Royal Australian and New Zealand College of Radiologists [2005] NSWSC 1208 Priest v State of New South Wales [2006] NSWSC 12 Quinn v Gray [2009] VSC 136 McKellar v Container Terminal Management Services Limited (1999) 165 ALR 409 Rajski v Bainton (1990) 22 NSWLR 125 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Sanders v Snell (No 2) (2003) 130 FCR 149 McGee v Yeomans [1977] 1 NSWLR 273 Slivak v Lurgi (Australia) Pty Limited [2001] 205 CLR 304 Jeans v Cleary [2006] NSWSC 647 Chan v Sellwood [2009] NSWSC 1335 Perpetual Trustees Victoria Limited v Dunlop [2009] VSC 331 Hamod v State of New South Wales (No. 12) [2009] NSWSC 242 State of New South Wales v Spearpoint [2009] NSWCA 233
PARTIES:	Gerard Michael McGuirk (Plaintiff) The University of New South Wales (Defendant)
FILE NUMBER(S):	SC 20106/08
COUNSEL:	Plaintiff in Person Mr R Lancaster (Defendant)
SOLICITORS:	Plaintiff in Person Sparke Helmore (Defendant)