Salby v Macquarie University

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FEDERAL COURT OF AUSTRALIA

Salby v Macquarie University [2017] FCA 67

Appeal from: Salby v Macquarie University & Anor [2016] FCCA 3
File number: NSD 357 of 2016
Judge: FLICK J
Date of judgment: 8 February 2017
Catchwords:

INDUSTRIAL LAW – the taking of adverse action – no action taken because of exercising a workplace right

ADMINISTRATIVE LAW – denial of reasonable opportunity to be heard – no practical injustice

PRACTICE AND PROCEDURE – leave to adduce fresh evidence on appeal – leave refused

PRACTICE AND PROCEDURE – challenge to findings of fact – need to identify appellable error  
Legislation:

Fair Work Act 2009 (Cth) ss 340, 361

Federal Court of Australia Act1976 (Cth) ss 24(1)(d), 25(2B)(ba), 25(2B)(bb), 31A(2)

Trade Practices Act1974 (Cth) ss 52 and 53B

Workplace Relations Act1996 (Cth) s 342

Cases cited:

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833, (2001) 117 FCR 424

Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594

Construction, Forestry, Mining and Energy Union v Alfred [2011] FCAFC 13, (2011) 203 IR 78

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41, (2014) 253 CLR 243

Farrington v Deputy Commissioner of Taxation [2002] FCA 1013, (2002) 50 ATR 429

Fox v Percy [2003] HCA 22, (2003) 214 CLR 118

Kowalski v Domestic Violence Crisis Service [2005] FCA 12

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6, (2003) 214 CLR 1

Robinson Helicopter Co Inc v McDermott [2016] HCA 22, (2016) 90 ALJR 679

Salby v Macquarie University & Anor [2016] FCCA 3

World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181

Date of hearing: 6, 7 and 10 October 2016
Registry: New South Wales
Division: Fair Work Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 157
Counsel for the Appellant: The Appellant appeared in person
Counsel for the Respondents: Mr Y Shariff
Solicitor for the Respondents: Johnson Winter & Slattery

ORDERS

NSD 357 of 2016
BETWEEN:

MURRY SALBY

Appellant
AND:

MACQUARIE UNIVERSITY

First Respondent

PAUL BEGGS

Second Respondent

JUDGE:

FLICK J

DATE OF ORDER:

8 FEBRUARY 2017

THE COURT ORDERS THAT:

1.The Interlocutory Application filed on 18 August 2016 is dismissed.

2.The appeal is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

  1. The Appellant in the present proceeding, Dr Murry Salby, holds qualifications in aerospace engineering and environmental dynamics.

  2. In February 2008 he was recruited from the University of Colorado as part of the “Centre of Research Excellence” at Macquarie University (the “University”).  A simmering dispute between Dr Salby and other persons within the University seems to have commenced from an early date.  The precise date matters not.  What seems to have been the catalyst which brought matters to a head was a formal directive given on 21 February 2013 by…

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Details
Case
[2017] FCA 67
Decision Date

CaseChat Overview and Summary

The case of Salby v Macquarie University involved Dr. Warwick Salby, an academic, appealing against the Federal Circuit Court's decision which had found that the University had not breached his contract or engaged in any unlawful conduct. The primary legal issues before the court included whether the University breached Dr. Salby's employment contract, whether it took any adverse action against him for exercising his workplace rights, and if the University's actions contravened the Fair Work Act 2009. Additionally, the court had to consider whether there were any errors in the findings of fact made by the primary judge.

The court found that Dr. Salby had not established any breach of his employment contract by the University, nor had the University taken any adverse action against him for exercising his workplace rights. The court also found that the University's actions were in accordance with the law, and the decision to terminate Dr. Salby's employment was lawful. The court further held that Dr. Salby had not identified any appellable error in the primary judge's findings of fact. The court examined several factual contentions advanced by Dr. Salby but found them to be without merit. The court concluded that the primary judge's findings were soundly based, and there was no evidence of any misunderstanding of the facts.

The court dismissed the appeal with costs, finding that Dr. Salby had not demonstrated any grounds for overturning the primary judge's decision. The court also noted the difficulties encountered during the preparation of the appeal, including Dr. Salby's unrepresented status and his overseas travel. Despite these challenges, the court ensured that the appeal was heard on its merits.

ORDERS:
1. The Interlocutory Application filed on 18 August 2016 is dismissed.
2. The appeal is dismissed with costs.

Orders

Orders of the court

1. The Interlocutory Application filed on 18 August 2016 is dismissed.

2. The appeal is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

That latter argument seemed to emerge for the first time in the Amended Notice of Appeal. The argument should not now be permitted to be raised for either of two reasons, namely:·the argument seems to challenge interlocutory decisions made by the Federal Circuit Court Judge well after the time has expired in which any such challenge could properly be brought; and, irrespective of the former reason:·such materials as were relied upon by Dr Salby were so incomplete that no view could be formed about the circumstances in which access to documents was first raised and the manner in which it had been resolved. On the materials available, there did not emerge any real basis upon which any such argument would have any prospect of success. CONCLUSIONS The appeal necessarily fails when it is concluded that: ·irrespective of whether the Australian Workplace Agreement should or should not have been registered, Dr Salby has failed to establish any breach on the part of the University of his contract of employment; ·no misleading statement had been made by the University;·the University took no “adverse action” against Dr Salby by reason of his exercising any “workplace right”; and·the misconduct proceedings were conducted in accordance with law and the decision to terminate Dr Salby’s employment was also lawfully made. The appeal also necessarily fails because Dr Salby has failed to establish any appellable error in respect to any of the findings of fact made by the primary Judge. A number of the factual contentions advanced by Dr Salby have been examined, free of any constraint upon this Court acting as an appellate court. Those factual contentions, albeit not the entirety of the factual contentions advanced on appeal, were examined with a view to testing the manner in which the primary Judge had proceeded and whether a finding made by the primary Judge actually concealed some misunderstanding of the evidence. But all such findings were soundly based. Certainly none disclosed any error susceptible to challenge on appeal as discussed in Robinson Helicopter Co. Notwithstanding the selection of those factual contentions which are expressly canvassed, each of the submissions advanced by Dr Salby have been individually considered. None have any merit. Each is subject to the same conclusion that Dr Salby seeks to seize upon, for example, one particular fact or exchange of emails and to divorce that example from the factual context in which it occurs. In the absence of any appellable error being identified in respect to the factual findings made by the primary Judge, to canvass in greater detail each of the factual submissions advanced on appeal would be to trespass well beyond the role of an appellate court. No basis has been exposed by Dr Salby in respect to any of the factual findings made by the primary Judge to warrant his submissions again being entertained solely with a view to this Court (possibly) making a different finding of fact. No appellable error has been exposed by Dr Salby in respect to any of the primary Judge’s details findings and reasons for decision. The error on the part of the primary Judge as to it being Professor Dowton who terminated the employment of Dr Salby ([2016] FCCA 3 at [1]) rather than Professor Sachs exposes nothing other than a momentary lapse, as other references to the reasons for decision demonstrate ([2016] FCCA 3 at [139], [140] and [267]). That one error is non-prejudicial.

Ratio Decidendi

Legal Principle Established

The appeal is to be dismissed with costs.The preparation of the appeal for hearing The preparation of Dr Salby’s appeal for hearing has not proved an easy task. Attempts to identify the questions in need of resolution on appeal and the factual basis upon which those questions were to be resolved confronted difficulty. Some difficulties were encountered by Dr Salby being overseas and some difficulties were encountered by reason of the form in which he had drafted his Notice of Appeal. Ultimately such difficulties were overcome. But the background should nevertheless be briefly set forth. The Notice of Appeal was filed in this Court in March 2016. A directions hearing was held on 20 April 2016 when Dr Salby appeared unrepresented. Concern was expressed as to the form of that Notice of Appeal. Directions were then made for the filing by 11 May 2016 of an Amended Notice of Appeal, an Outline of Submissions and a copy of all evidence upon which Dr Salby sought to rely. Those directions were made with a view to enabling an unrepresented Appellant an opportunity more freely to articulate his case on appeal and potential deficiencies in the formulation of Grounds of Appeal, it was hoped, could possibly be cured by written submissions. The timing of those directions also sought to accommodate the fact that Dr Salby had informed the Court that he would be travelling overseas “during June and July” and would be departing on 25 May 2016. An Amended Notice of Appeal was filed on 11 May 2016. The matter came back before the Court for further directions on 13 May, 29 June and 20 July 2016. Given the fact that Dr Salby had previously advised the Court that he would be overseas, he did not attend the directions hearings held in June or July 2016. Nor did he arrange for anyone else to appear on his behalf. On 18 August 2016 the Respondents filed an Interlocutory Application seeking orders (inter alia) that the appeal be dismissed pursuant to s 25(2B)(ba) and/or s 25(2B)(bb) or, in the alternative, an order that judgment be given against Dr Salby pursuant to s 31A(2) of the Federal Court of Australia Act1976 (Cth) (the “Federal Court Act”). That Interlocutory Application was returnable on 8 September 2016. Dr Salby returned to Australia in or around late July 2016. He opposed the orders sought in the Interlocutory Application. Counsel for the University did not oppose a course whereby the appeal should proceed to hearing. The relief previously sought in the Interlocutory Application was pressed only to the extent that it sought an order for the summary dismissal of the appeal pursuant to s 31A(2) of the Federal Court Act. Counsel for the University was content to have that application heard at the same time as the hearing of the appeal. The Grounds of Appeal as set forth in the Amended Notice of Appeal still failed properly to address the Grounds upon which Dr Salby sought to contend that the Federal Circuit Court Judge committed appellable error. But such formalities can be left to one side. The substance of Dr Salby’s challenges to the decision of the Federal Circuit Court Judge focussed upon alleged breach of contract and contraventions of the Fair Work Act2009 (Cth) (the “Fair Work Act”).