Secretary, Department of Education v Derikuca

[2023] NSWCA 94

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Secretary, Department of Education v Derikuca [2023] NSWCA 94

Hearing dates:

27 April 2023

Date of orders:

12 May 2023

Decision date:

12 May 2023

Before:

Kirk JA at [1];
Simpson AJA at [104];
Basten AJA at [105]

Decision:

1. Grant leave to appeal.

2. The applicant is to file a notice of appeal in the form of the draft notice of appeal within seven days of this order.

3. Appeal allowed.

4. Set aside orders 1-4 made by the Supreme Court on 14 September 2022 (as varied on 19 September 2022) and, in lieu thereof, order that the proceedings be dismissed.

Catchwords:

ADMINISTRATIVE LAW — Remedies — Certiorari — Exercise of statutory power without consequences

CONTRACTS — Remedies — Declaration — Court slow to make declaration about contract involving persons not before court

JUDGMENTS AND ORDERS — Directions for provision of further submissions — Issue not raised by parties — Broad power under s 63 of Supreme Court Act 1970 (NSW) to resolve all issues in a controversy — Difference between resolving controversy before Court and fomenting further disputes

Legislation Cited:

Civil Liability Act 2002 (NSW), s 5

Civil Procedure Act 2005 (NSW), s 64(2)

Education (School Administrative and Support Staff) Act1987 (NSW), ss 7A, 7B, 7C, 7D, 7E, 8

Interpretation Act 1987 (NSW), s 21(1)

Property NSW Act 2006 (NSW), Pt 2

Supreme Court Act 1970 (NSW), s 63

Teaching Service Act1980 (NSW), ss 5, 7(1), 44(1)

Uniform Civil Procedure Rules 2005 (NSW), rr 7.36, 59.10

Cases Cited:

Derikuca v Secretary, Department of Education [2022] NSWSC 1239

Forbes v Perry [1999] NSWSC 1217

Hamod v New South Wales [2011] NSWCA 375

Hobart International Airport Pty Ltd v Clarence City Council (2022) 96 ALJR 234; [2022] HCA 5

John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19

Kassam v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299

Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39

News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410

Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; [1981] HCA 7

Registrar of Titles (WA) v Franzon (1975) 132 CLR 611; [1975] HCA 41

Strong Wise Ltd v Esso Australia Resources Pty Ltd (No 2) (2010) 185 FCR 237; [2010] FCA 575

Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150; [1981] HCA 48

Wang v Meng [2022] NSWCA 215

Category:

Principal judgment

Parties:

Secretary, Department of Education (Applicant)

Stevo Derikuca (Respondent)

Representation:

Counsel:

S Free SC and H Ryan (Applicant)

L Andelman and A Perigo (Respondent)

Solicitors:

Crown Solicitor’s Office (Applicant)

Activate Law (Respondent)

File Number(s):

2022/297291

 Decision under appeal 

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Civil

Citation:

Derikuca v Secretary, Department of Education [2022] NSWSC 1239

Date of Decision:

14 September 2022

Before:

Rothman J

File Number(s):

2021/33719

HEADNOTE

[This headnote is not to be read as part of the judgment]

The respondent, Mr Stevo Derikuca, was employed as a cleaner by a company (ISS) which has a “whole of government” cleaning contract with Property NSW, a statutory body corporate. The respondent had been working as a cleaner at a public school in Sydney when a complaint was made about him alleging that he had said something to a teacher with sexual connotations. A course of events led to ISS terminating his employment. The respondent brought proceedings against the applicant, the Secretary of the Department of Education, challenging what were described by the parties as two “decisions” made by persons in the department. The first such “decision” was an email sent by a person in the Department to ISS, confirming an earlier discussion, indicating that the Department “would appreciate if action is taken to ensure that Mr Derikuca is not employed on any Department of Education facilities”. The second decision was the placing of the respondent’s name on the Department’s “Not To Be Employed List”. The respondent also claimed “compensation”.

That matter was listed for final hearing before the primary judge. In due course his Honour made a number of orders in the respondent’s favour. In respect of the first “decision”, he made a declaration that the applicant had no power under certain provisions in the contract between Property NSW and ISS to exclude the respondent from school sites. His Honour granted certiorari quashing the second decision, on the basis that the act of listing lacked statutory authority, and, specifically, that the relevant statutory provisions, s 7E of the Education (School Administrative and Support Staff) Act 1987 (NSW) and s 7(1) of the Teaching Service Act 1980 (NSW), did not authorise including a person on the list who is not or had not been an employee of the Department. His Honour also directed that the parties attend mediation and, if the matter did not resolve, that each party file and serve submissions “on the outstanding issues referred to in the reasons for judgment”. Those outstanding issues involved addressing a potential claim for damages for inducement of breach of contract, which claim had been identified by the primary judge although not raised by either party.

There were three main issues on appeal. The first was whether the second decision should have been quashed. The second was whether the declaration in respect of the first “decision” should be set aside. The third was whether the directions with respect to the potential claim for inducement of breach of contract should be set aside.

The Court (per Kirk JA, Simpson AJA and Basten AJA agreeing) upheld the appeal on each issue:

1. In respect of the second decision, the primary judge appeared to premise his decision on the fact that the exclusion of the respondent from departmental sites was not authorised by the two statutory powers invoked by the applicant. The only statutory consequence of being placed on the list under either of the two provisions is that the person is placed on the list. Whilst this may subsequently have further consequences, any such consequences are the result of the exercise of other powers, which are not appropriately addressed by quashing a decision to put someone on the list: at [49]. No argument of text, context or purpose supports the conclusion that the two statutory powers are limited to persons who were currently working, or had previously worked, in the Department: at [60].

2. In respect of the declaration made concerning the first “decision”, the requests were not definitive and did not invoke any particular powers, and it is difficult to regard them as a “decision”: at [70]. Nonetheless, the respondent sought to justify the declaration on the basis that it benefitted the respondent in unfair dismissal proceedings brought against ISS before the Fair Work Commission, and that it related to the respondent’s putative claim for damages. The declaration does not have the significance claimed. It does not address the power of the Secretary to end the employment contract between ISS and the respondent, but whether the Secretary could exercise a power under the ISS-Property NSW contract. If the respondent sought to rely on the declaration in the way outlined it would be liable to cause confusion: at [77]. Further, ISS was not a party to the proceedings, and a court would be slow to make a declaration about the effect of a contract involving persons not before the court in the absence of good reason to do so: at [77]-[81].

News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410; John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19; Hobart International Airport Pty Ltd v Clarence City Council (2022) 96 ALJR 234; [2022] HCA 5, considered.

3. In respect of the directions made for further submissions, there are circumstances in which it may be necessary or appropriate for a court to give parties a further opportunity to make submissions after a final hearing. It is also not uncommon for courts to give parties an opportunity to be heard in relation to what final relief should be granted: at [90]. Section 63 of the Supreme Court Act 1970 (NSW) confers on the Court broad power to resolve all issues in a controversy. However, there is a difference between resolving the controversy brought before the Court and fomenting further disputes: at [93]. The primary judge identified a whole new potential claim based on the tort of inducing breach of contract, which had not been raised by the respondent, which involved quite distinct issues to what had been addressed by the parties, and which required new evidence: at [100]. This goes beyond the kind of assistance which a court ought to provide a litigant in person: at [101].

Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150; [1981] HCA 48; Wang v Meng [2022] NSWCA 215; Strong Wise Ltd v Esso Australia Resources Pty Ltd (No 2) (2010) 185 FCR 237; [2010] FCA 575; Hamod v New South Wales [2011] NSWCA 375, considered.

JUDGMENT

1. KIRK JA: The respondent, Mr Stevo Derikuca, was employed as a cleaner by a company (ISS) which has a “whole of government” cleaning contract with Property NSW, a statutory body corporate established by Pt 2 of the Property NSW Act 2006 (NSW). The respondent had been working as a cleaner at a public school in Sydney when a complaint was made about him alleging that he had said something to a teacher with sexual connotations. A course of events led to ISS terminating his employment on 30 March 2020.

2. The respondent commenced proceedings the focus of which was to challenge two “decisions” made by persons within the Department of Education (the Department) on behalf of the applicant, the Secretary of the Department. The respondent perceived those decisions to have been the cause of ISS terminating his employment. The identified decisions were as follows:

1. On 16 March 2020 Mr Luke Naividi sent an email to ISS saying that “we would appreciate if action is taken to ensure that Mr Derikuca is not employed on any Department of Education facilities”. Mr Naividi was the “R/Director Child Protection Investigations” in a unit within the Department called “Employee Performance and Conduct” or “EPAC”. In the proceedings this action has been described as the “First Decision”. Whether it is appropriate to label Mr Naividi’s communication a “decision” is a matter addressed below.

2. On 28 September 2020 the “Acting Executive Director, Professional and Ethical Standards” within the Department, Mr Daryl Currie, placed the respondent’s name on the Department’s “Not To Be Employed List” (NTBE List). This has been described as the “Second Decision”.

3. The respondent sought judicial review of the two decisions on various grounds. The respondent also sought “compensation” and referred in various filed documents to negligence and breach of statutory duty. The applicant perceived that the respondent may have been making a claim for damages in negligence.

4. The matter was listed for final hearing before the primary judge, Rothman J. The hearing was very short. The respondent, who seems to have limited English, was representing himself with the assistance of an interpreter.

5. When the primary judge delivered his judgment he resolved the judicial review challenge to the two decisions but did not definitively resolve any claim for compensation or damages: Derikuca v Secretary, Department of Education [2022] NSWSC 1239. There is some reason to think that that his Honour rejected the possible claim in negligence. However, he raised the possibility that the respondent could make a claim in the tort of inducing breach of contract. He did so even though neither party had raised that issue, and the contract that it was said may have been breached – the respondent’s contract of employment with ISS – was not in evidence.

6. His Honour made five orders:

1. Order 1 granted certiorari quashing the Second Decision, that is, the decision to include the name of the respondent on the NTBE List.

2. Order 2, in relation to the First Decision, declared that the applicant had “no power under the contract between Property NSW and ISS Property Services Pty Ltd to exclude the plaintiff pursuant to the terms of Clause 5.5.1(e) or (f) from school sites”.

3. Order 3 referred the parties to mediation before the Registrar, “which mediation should also include ISS Property Services Pty Ltd”.

4. Order 4 directed that each party was to file and serve submissions “on the outstanding issues referred to in the reasons for judgment” by a particular date if the proceedings and controversy were not resolved at the mediation.

5. Order 5 referred the respondent to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel pursuant to the provisions of r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW).

7. Orders 3 and 4 were subsequently stayed pending determination of this appeal, by consent orders made in the Common Law Division. The applicant appeals the orders made by the primary judge and seeks in lieu that the case be dismissed. The applicant raises various overlapping grounds of appeal but in what follows it is more efficient to focus on the orders made below rather than treating separately the individual grounds.

8. In this Court the respondent was represented by two counsel and solicitors who acted consequent upon the referral made by order 5. Their assistance is appreciated by the Court. The applicant was represented by different counsel and solicitors to those who had acted at trial.

9. The applicant accepts that leave to appeal is required. Leave should be granted. The application raises issues of principle as regards all of the orders made and, in any event, it is evident that there is more than a merely arguable case of injustice. Order 1 is based on a misconstruction of the relevant statutory provisions. It is understandable why his Honour made the declaration in order 2 given the submissions that had been made to him, but making such a declaration was not warranted. Orders 3 and 4 should not have been made. The appeal should be upheld and the proceedings dismissed.

10. In what follows I first set out in more detail the context in which the appeal is brought then address in turn the challenges made to orders 1-4.

Background

The factual context

11. It is not necessary to say anything about the alleged misconduct of the respondent. It is sufficient for the purposes of this appeal to note the course of events which flowed from the complaint made about him on 3 February 2020.

12. On 5 February 2020 ISS suspended Mr Derikuca from his duties at Strathfield Girls High School. An ISS document dated 12 February 2020 said that he had been suspended from duty, noting that “[c]lient has requested removal”. It is not apparent precisely who had made this request. ISS then undertook an investigation into the allegations, including by conducting an interview with Mr Derikuca.

13. On 4 March 2020 Mr Luke Naividi informed ISS that his office (being EPAC, within the Department) had been notified of the allegations but was content for the matter to be addressed by ISS given that the concerns were not related to child protection.

14. On 9 March 2020 ISS sent the respondent a letter recording some adverse findings as a result of its investigation and issuing a “first and final formal warning” to him. The letter referred to a “direction provided to us by our client to remove you from their site”, apparently referring to the school at which he had been working. The letter said that from the next day he would be working at another public school site.

15. On 11 March 2020 ISS, through Mr John Rebeiro, notified Mr Naividi by email that disciplinary action had been taken and the respondent would no longer be based at the school at which he had been working.

16. On 16 March 2020 Mr Naividi spoke to Mr Rebeiro by phone and then emailed him. The email said that the Department had “an obligation to ensure that our staff members (in any school) are able to work in a safe workplace”, and “[a]s such, we would appreciate if action is taken to ensure that Mr Derikuca is not employed on any Department of Education facilities”. This action is the “First Decision”. ISS again suspended the respondent from duty on that day.

17. On 24 March 2020 ISS forwarded Mr Naividi’s email to Property NSW, seeking advice “on the request from contractual perspective”. A Property NSW representative responded 14 minutes later, saying:

As per Part E Special Conditions 5.5 Employee Screening for Cleaning Personnel, a cleaner requires an EPAC (Police and WWC [working with children]) clearance to work under the WoG [whole of government] contract.

As EPAC have revoked the clearance of Mr Stevo Derikuca, he is no longer permitted to work under the WoG contract.

18. On 25 March 2020 ISS wrote to the respondent, saying that “EPAC have revoked your clearance”, that “all cleaners are required to maintain EPAC clearance to work anywhere within the ISS Whole of Government contract”, and that “[a]s a result … the proposed action is for ISS to terminate your employment”. It proposed a meeting with him to give him a chance to respond. That occurred on 26 March 2020. His employment was terminated on 30 March 2020 “on the grounds of failure to maintain current licences, checks and clearances as outlined in your contract of employment”.

19. On 1 April 2020 the respondent wrote to EPAC protesting his treatment. Mr Naividi responded on 28 April 2020, saying:

I advised Mr Rebeiro that given we have an obligation to ensure the safety of staff (or students) in all our schools, we asked that ISS not employ you on our sites. That would not preclude you from working at other ISS sites.

20. On 26 May 2020 the respondent sent an email to EPAC making inquiries about an investigation undertaken by EPAC separate from ISS into his alleged misconduct. As noted at [13], EPAC had not undertaken its own investigation having relied on the investigation undertaken by ISS.

21. Ms Melanie Oliver, who had taken over responsibility for the matter (Mr Naividi having left EPAC), made inquiries on 1 June 2020 with ISS about the nature of any investigation undertaken by ISS. Mr Rebeiro informed her that no investigation had been taken. This was incorrect. Ms Oliver then suggested within EPAC that an investigation into Mr Derikuca’s alleged misconduct should be undertaken “for procedural fairness reasons” on the assumption that no investigation into the alleged misconduct had been conducted by either ISS or the Department prior to the respondent’s dismissal.

22. On 15 June 2020 Ms Oliver told Mr Derikuca that the Department would undertake an investigation. On 30 June 2020 she wrote to him outlining the allegations and inviting submissions from him in response. She outlined that the type of action the Department might take ranged from advising ISS that he may be allowed back on departmental sites “through to placing your name on a list of people who are not to be employed in any capacity” in the Department. The respondent provided a submission and “witness statement” in response.

23. On 2 September 2020 Ms Sarah Parry of the Department advised the respondent that the investigation was complete, that two allegations had been sustained, and that the writer had recommended to the relevant decisionmaker to have the respondent’s name permanently placed on the NTBE list. Mr Derikuca was invited to make submissions in response, which he did.

24. On 28 September 2020 Mr Currie decided to place the respondent’s name on the NTBE list (this being the “Second Decision”).

The nature of the proceedings

25. The respondent commenced the case below by a statement of claim filed on 5 February 2021. In that document he sought “review and revocation” of the decision to put him on the NTBE List, and “[c]ompensation for the loss of earnings from the day Stevo Derikuca lost employment due to DoE decision”. Damages were not claimed in terms and there was no mention of any cause of action in negligence or any other tort or for breach of contract.

25. At a directions hearing on 18 March 2021 consent orders were made by a Registrar, implicitly at the suggestion of the applicant. They included an order that the parties attend a mediation, and that the respondent file and serve a summons within four weeks after conclusion of the mediation, with the applicant to file and serve a response to the summons a few weeks thereafter. It appears that the intent of the orders was that the summons was to replace the statement of claim. Thus no defence to the statement of claim was filed. Proceeding by way of summons reflects an apparent mutual understanding that in substance the respondent was seeking judicial review of certain decisions made on behalf of the applicant.

26. The respondent filed the foreshadowed summons on 20 July 2021. It sought a “review” of the two decisions and, consistently with the statement of claim, again sought “[c]ompensation for the loss of earnings from the day Stevo Derikuca lost employment due to DoE decision”.

27. In August and September 2021 the respondent filed three further documents, titled “Further Particulars of Claim”, in apparent response to a request for further and better particulars. These documents mainly set out his version of events and raised complaints about the two decisions. However, the second of the documents also stated that the “actions of negligence of Mr Naividi, Ms Parry and Mr Currie … caused significant economic loss to me since 30 March 2020”, and asked the Court “to take into consideration the instances of negligence as described above and award compensation for the loss of earnings with interest from the day I have lost employment”.

28. In the third of these documents, in response to a request to identify the legal grounds on which the relief was sought, the respondent referred to certain provisions of the Civil Liability Act 2002 (NSW), including by saying that s 5 of that Act “defines negligence as failure to exercise reasonable care and skill”. The same paragraph of the document alleged that both Mr Naividi and Mr Currie had “breached their statutory duty as a public authority in connection with the exercise of or a failure to exercise a function of the authority”.

29. The applicant filed a “Response to Summons” in October 2021. Amongst other things, it said that the respondent’s claim was “misconceived, lacking in substance, does not disclose a reasonable cause of action, has been filed out of time and is embarrassing”. The reference to being filed out of time related to the fact that the case was commenced in February 2021 but related to decisions taken in March and September 2020, being beyond the three month general limitation period for judicial review challenges set by rule 59.10 of the UCPR. I note in passing that one of the applicant’s complaints is that the primary judge did not determine whether time should be extended. Given the view I take of the case it is not necessary to address that point further.

30. In the Response to Summons the applicant said that, “doing the best the [applicant] can”, it appeared that the respondent alleged the applicant “was negligent in making the [two decisions] by reason of breaching a statutory duty as a public authority by acting where there was a lack of evidence and failing to comply with general procedures and applicable standards for the exercise of their functions”. The respondent thus treated the reference to breaching statutory duties as part of the negligence claim (as, in due course, did the primary judge: judgment at [41]). The Response set out grounds for opposing the compensation order sought by the respondent which included that the Court did not have power in judicial review proceedings to order compensation, that the applicant was not the employer of the respondent, that the applicant did not owe the respondent any duty of care, and if there was any such duty then the applicant did not breach it.

31. Despite the applicant’s critique of the respondent’s claims, no move was made to seek that they be struck out or summarily dismissed. Rather, the matter was listed for final hearing before the primary judge. No orders were made at any stage for the determination of any separate questions or for issues relating to compensation or damages to be determined separately and subsequently.

32. In this Court the applicant initially submitted that the primary judge should have dismissed the allegations of negligence and claim for compensation, and that this Court should now do so. However, in the course of argument – and once the course of events outlined above relating to the statement of claim had been clarified – the applicant submitted that the respondent’s summons should not be understood as having made a claim for damages. The respondent resisted that characterisation of the proceedings, even when it was pointed out that if a claim for damages had been made then there appeared to be some force in the applicant’s submission that any such claim should have been dismissed.

33. The better view of the documents filed by the applicant is that he was not making a claim for damages in tort. If he had been then it should have been articulated in a statement of claim pleading the material facts. The statement of claim originally filed by the applicant did not set out any claim in tort. The fact that he then consented to proceed by way of summons reinforces the conclusion that no such claim was being made. The respondent’s passing references to negligence and breaching a statutory duty in his particulars documents did not constitute anything approaching the articulation of a case that an identified duty had been breached causing him damage. Some allowance may be made for the fact that the respondent was unrepresented. That does not mean that the Court should find that a claim was being made in negligence where these core matters were simply not addressed (see further the discussion below at [101] relating to litigants in person).

34. The summons challenged two decisions by way of seeking judicial review. The claim for “compensation” appears to have been based on a misconceived understanding that if the decisions were invalid, as he alleged, then he might have a right to compensation for lost wages. It cannot fairly be read as a claim for damages in negligence or in any other tort or for breach of contract.

Order 1: Certiorari quashing entry on the List

36. As noted above, the Second Decision was taken by Mr Currie on 28 September 2020, as a delegate of the applicant, that the respondent’s name be placed on the NTBE List. In his letter to the applicant dated 28 September 2020, Mr Currie explained his decision as follows:

I have determined to place your name on the NTBE List. This means you will be unable to work for the Department of Education in any paid or voluntary capacity or attend departmental sites, including schools.

An issue not raised in this proceeding

37. The parties assumed both in the hearing below and in this Court that the Second Decision was taken, only, as an exercise of statutory power. Two statutory provisions provide specific authorisation for some such list, as addressed below. Those relate to employment of persons as teachers or school administrative and support staff. It seems that the Department has just one NTBE List which encompasses persons listed under either of these powers.

38. In submissions to this Court, senior counsel for the applicant noted that Mr Currie’s reference in his letter to the respondent being “unable to attend departmental sites, including schools” was not supported by the statutory powers. Although not entirely clear, it seems that the Department’s NTBE List serves broader purposes than listing people not to be employed under the two identified statutory powers.

39. Specifically, there is some reason to think that the Department uses the List to identify people it wishes to exclude from departmental sites. So much is suggested by Mr Currie’s letter. Further, Ms Sarah Parry, “Director Child Protection Investigations”, said in an affidavit that “[d]uring my employment with the department I have made many recommendations that persons who are not employed by the department, such as contractors, parents, volunteers and like and be placed on the NTBE List”. Whilst it is possible that abusive parents, for example, might be placed on the NTBE List simply to ensure that they are not employed, a practical understanding of Ms Parry’s evidence suggests that they are placed on the List for some purpose of exclusion from school property.

40. The two statutory powers do not authorise creating a list of people to be excluded from schools and other departmental sites. There is good reason to infer that departmental officers have power to exclude people from school sites, either under statutory powers relating to administering schools and school property or pursuant to the ordinary powers of exclusion held by owners or lessors of real property, or both. And if that were so, there is no apparent reason why the Department would need specific statutory authority to maintain a list of people to be excluded. Prior to the enactment of the statutory provisions in question here the Supreme Court had held that the Department could maintain a list of people not to be employed even absent some specific legislative authorisation to do so: Forbes v Perry [1999] NSWSC 1217 at [14]-[15].

41. However, questions about possible sources of power to exclude people from school property, or to maintain a list of people so excluded, were not addressed by either side and need not be resolved in this case. Nor is any question raised as to the wisdom or legality of combining listings for different purposes and under different powers into one list. Rather, the focus of argument was just on whether the two statutory powers extended to authorise placing on the NTBE List someone who had not hitherto been an employee in the Department.

The statutory powers

42. Section 7E of the Education (School Administrative and Support Staff) Act1987 (NSW) provides:

The Secretary may prepare and maintain a list of persons who the Secretary determines are not to be employed as members of the school administrative and support staff.

43. The term “school administrative and support staff” is defined in s 4 of this Act as consisting of “the permanent employees and temporary employees who are for the time being employed under this Act”.

44. Section 7(1) of the Teaching Service Act1980 (NSW) provides:

The Secretary has the following functions: … (e) to prepare and maintain a list of persons who the Secretary determines are not to be employed in the Teaching Service …

45. The term “Teaching Service” is defined under s 44(1) of the Act as consisting of “the persons who are for the time being employed under this Division” (being Div 2 of Pt 4 of that Act).

46. The Acts provided that the protection of children “is to be the paramount consideration” in taking any action with respect to a member of the school administrative and support staff under the Education (School Administrative and Support Staff) Act (s 7A) or taking any action with respect to an officer or temporary employee under the Teaching Service Act (s 5).

47. His Honour’s reasons for concluding that the Second Decision was invalid are not entirely clear. He described that decision as “a decision to place the plaintiff’s name on the List” (at [5]). And order 1 was expressed to quash “the decision of the defendant to include the name of the plaintiff on the Not to be Employed List created and maintained under” the two provisions. Thus the decision held to be invalid was the listing of the respondent’s name.

48. Some parts of his Honour’s reasons appear to reflect the issue referred to above, namely that the exclusion of the respondent from departmental sites was not authorised by the two statutory powers invoked by the applicant. For example he said at [80]:

While I accept, if there are other bases upon which the Department may exclude the plaintiff from their property, the discretion of the Court as to whether it should issue certiorari needs to be examined. It seems to me that the placement of the plaintiff on the List purports to give administrative and statutory authority to the exclusion of the plaintiff from the premises of the Department. That administrative and legislative basis does not exist.

49. A difficulty with this reasoning is that the only statutory consequence of being placed on the NTBE List under either of the two provisions is that the person is placed on the List. The legislation does not provide any automatic consequence for being listed. It may readily be inferred that persons on the List are not then employed by the Department as an exercise of the powers of employment addressed by the Acts. It might also be that it affects the exercise of other discretions, such as who is permitted on to school premises. But any such consequences are the result of the exercise of other powers. Being listed does not “purport to give administrative and statutory authority to the exclusion of the plaintiff from the premises of the Department”. Even if some departmental officers are mistaken as to the consequences of placing someone on the NTBE List (an issue which need not be considered), any such mistake goes to the exercise of other powers. It is not solved by quashing a decision to put someone on the List.

50. His Honour said at [73]:

The legislative warrant for the preparation and maintenance of a list of persons is authority to prepare and to maintain a list of persons who may not be employees of the Department. There is no legislative support for the proposition that, pursuant to s 7E of the Education (School Administrative and Support Staff) Act, the Department Secretary (or a delegate thereof), may place on the list, persons who may not be employed by contractors to the Department.

51. This analysis is correct, at least insofar as the focus of analysis is directed to the two statutory powers in question. But, again, the concern seems to go to consequences of listing. It does not provide a reason for quashing the decision to list the respondent. In any event, Mr Currie’s letter did not refer to whether or not the respondent could be employed by contractors. It did refer to him being unable to work for the Department.

52. A further concern raised by the primary judge seemed to be that the statutory provisions did not authorise including a person on the NTBE List who is not (or perhaps has not in the past been) an employee of the Department: at [77] and [146]. Any such concern does go to the decision to list. It was this issue which was the focus of argument by both sides in this Court. The respondent sought to support order 1 by submitting that the two statutory powers in question do not extend to listing persons who have never been employed by the Department.

53. That argument involves a misconstruction of the two statutory powers. It is contrary to the ordinary meaning of the words in s 7E and s 7(1)(e). Each empowers the Secretary to list “persons”. There is no limitation in either provision on what type of persons they encompassed. The only express requirement is that they be persons whom the Secretary has determined are not to be employed in the relevant capacities. The word “person” is general and encompassing. Section 21(1) of the Interpretation Act 1987 (NSW) provides that the word “person includes an individual, a corporation and a body corporate or politic”. The meaning of a particular use of the word is, of course, affected by its context. Given that the two powers in question are dealing with the topic of potential employment it can be assumed that where the word is invoked in those provisions it does not refer to corporations or bodies corporate. But it can readily refer to any individual.

54. Each power here looks to the future in addressing persons who “are not to be employed”. That focus on future employment weighs against the suggestion they need to have currently or previously been employed within the Department. If it had been meant to limit it in such a fashion then that could readily have been spelt out.

55. As a matter of purposive construction, the construction advocated by the respondent has nothing to commend it. Little imagination is required to think up examples of types of people – say former private school or interstate teachers convicted of child sexual abuse – that the Secretary would wish to ensure were not employed in schools regardless of whether they had previously been employed in the State school system.

56. The respondent suggested that, in the absence of clear words, the statutory provisions should not be construed to abrogate a person’s “right” to work. This Court has previously rejected the argument that there is any such generic right which engages the “principle of legality”: Kassam v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299 at [100]-[104] per Bell P; Leeming JA at [166]-[167]. In any case, that principle has no role to play where the very object of the provisions is to facilitate limiting who may obtain employment in the Department: note Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 at [313]-[314] per Gageler and Keane JJ.

57. The respondent argued that the word “person” should be construed in a limited way because in numerous other invocations of that word in the two Acts it is used to refer to employees or contractors serving the Department. He relied on the principle that it “is a sound rule of construction to give the same meaning to the same words appearing in different parts of a statute unless there is reason to do otherwise”: Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 at 618; [1975] HCA 41 per Mason J.

58. The word “person” is not used consistently in the two Acts in the way the respondent claimed. For example, as noted above, s 44 of the Teaching Service Act provides that the “Teaching Service” consists of “the persons who are for the time being employed under this Division”. The meaning of the word “person” there is individuals. Part of that group is then delineated by express words setting a criterion of being employed in a particular way. A similar point can be made about s 8 of the Education (School Administrative and Support Staff) Act, which provides that the Secretary “may appoint persons to be employed in the service of the Crown on a permanent basis as members of the school administrative and support staff of the Department in any classification”. Further, the unqualified breadth of referring to “persons” in s 7E of the Education (School Administrative and Support Staff) Act may be contrasted with the immediately preceding provisions, ss 7B-7D, which impose specific limitations on “a member of the school administrative and support staff”.

59. The respondent referred to some extrinsic materials connected with the enactment of s 7 of the Teaching Service Act but did not point to anything in particular which supported his construction. He also referred to the absence of any express procedure in the two Acts for determining who was to be placed on the NTBE List. But that is true regardless of whether “person” is read broadly or narrowly.

60. In sum, no argument of text, context or purpose suggests that the two powers to place persons on a NTBE List are limited to persons who were currently working, or had previously worked, in the Department. To the extent his Honour reasoned to the contrary that conclusion was in error. Nothing in the judgment below or put in submissions on appeal establishes that the applicant was not empowered to place the respondent on the NTBE List. Order 1 should thus be set aside.

61. For completeness I note that in submissions in the Court below the respondent sought to attack the Second Decision on the basis of other legal errors and on the grounds of procedural fairness. His Honour did not determine those issues. The respondent has not sought to reagitate those matters in this Court. No notice of contention or cross-appeal was filed.

Order 2: The declaration relating to contractual rights

62. Order 2 was a declaration that that the applicant had “no power under the contract between Property NSW and ISS Property Services Pty Ltd to exclude the plaintiff pursuant to the terms of Clause 5.5.1(e) or (f) from school sites”. The applicant accepts that the declaration is accurate as a matter of law but nevertheless submits that it should not have been made.

63. Only extracts of the contract between Property NSW (the “Principal”) and ISS (the “Contractor”) were in evidence. The contract is titled the “Whole of Government Facilities Management Services (Asset Maintenance and Cleaning) Contract”. Clause 5.5.1 is in part of the contract called “Part E – Special Conditions”. The significance of Part E was not clear. For example, it is not apparent whether or not it was meant specifically to address cleaning and maintenance for the Department of Education.

64. Clause 5.5.1 provides as follows:

5.5   Employment Screening for Cleaning Personnel

5.5.1   General Screening Requirement

(a) The Contractor must collect 100 points of ID from all Cleaning related employees and/or Subcontractors. Refer to Schedule 7 in Part D – General Conditions. The Contractor must also sight the originals of identity documents and all forms must be retained by the Contractor.

(b) The Contractor must generate a cleaner ID in WebClean and complete all identification fields for cleaners and supervisors. This entry is then verified by the Contractor and submitted to the Principal via WebClean. All new entries are sent to NSW Police for criminal record check and Employee Performance and Conduct (EPAC) Directorate by the Principal. These requests are generated by the Principal via WebClean database.

(c) The Contractor must complete the Working with Children clearance number and date of clearance in the appropriate field in WebClean prior to full clearance being provided.

(d) Once the Principal has received the results of the NSW Police and EPAC clearance and the complete Working with Children clearance details have been entered into WebClean, the Principal will, via a WebClean generated report, inform the Contractor of the results for its records and/or action, and advise the suitability of the engagement of the nominated employees/Subcontractor after the screening. The Contractor is to advise the applicant of all “no clearance” results and manage this relationship. The Contractor must not direct the applicant to the Principal for any reason.

(e) The Principal may without being required to give any reason direct the Contractor not to engage a particular employee/Subcontractor at a Facility and the Contractor must comply with such direction.

(f) If any person engaged as employee/Subcontractor by the Contractor is in the opinion of the Principal guilty of misconduct in or in the vicinity of the Facility or otherwise is in the opinion of the Principal unsuitable to be engaged as employee/Subcontractor the Principal may direct the Contractor to no longer engage that person as employee/Subcontractor and the Contactor must comply with such direction.

65. His Honour’s discussion of issues possibly arising from this clause was lengthy: at [82]-[131]. In the end, however, his determinative reasoning seems to be found in the following:

[82] The First Decision of the Department does not rely upon any statutory power or authority. Rather, the Department submits that the basis for the First Decision is the power conferred upon it under contract.

…

[131] Once the Court has determined that it is only the Principal — being Property NSW within the Department of Finance Services and Innovation — that may act under the Clause and, given the absence of delegated authority to act on behalf of Property NSW in the decision-makers, any power under the Contract, however wide or limited, has not been exercised in accordance with the Contract and no power exists under the Contract for the Department to issue such an instruction as the First Decision.

The shifting position of the applicant

66. The applicant had sought to argue before the primary judge that representatives of the applicant were entitled to exercise the power given to the Principal in cl 5.5.1(e) to direct ISS not to engage the respondent at departmental sites (see judgment at [82]). That argument was expressly disavowed by the applicant in this Court. The fact that it had been made offers some explanation of why his Honour considered it appropriate to make the declaration to resolve an apparent dispute. However, the applicant notes that broader arguments were also made below.

67. The respondent argued that the applicant should not be permitted to make an argument opposite to what had been put below. However, he identified no prejudice from this and the applicant’s argument should be addressed.

68. The applicant’s submissions evolved even in this Court. The applicant said in written submissions that the contract “contemplates that a ‘clearance’ from EPAC is required by cleaning sub-contractors and employees” and there “is no reason of text, context or purpose to suppose that EPAC clearance status may not change”. This argument suggested that EPAC could revoke the clearance that had initially been given, with the automatic consequence under the contract that the relevant person was no longer “cleared”. This position was not maintained in oral submissions. Rather, it was put that the request made in the email of 16 March 2020 had “no immediate legal effect of its own right” but that Property NSW could “legitimately act upon the EPAC no longer clearing a person or revoking the clearance”. Then it was accepted that such a request need not be described as “revoking the clearance” – the contractual language relating to a person being approved at the beginning – but “you can call it an indication of the department's position as to the suitability of this person being on school grounds”.

69. It is not necessary to decide here whether EPAC could revoke the clearance with some automatic contractual effect under cl 5.5.1. As noted above, the email from Mr Naividi to ISS of 16 March 2020 said that “we would appreciate if action is taken to ensure that Mr Derikuca is not employed on any Department of Education facilities”. The email referred to a prior conversation with Mr Rebeiro (the recipient of the email). Mr Naividi’s file note of that conversation recorded that “I explained that while [the respondent] had been removed from Strathfield Girls HS, we had concerns that he work at ant [sic - any] DET site as we needed to ensure that our staff are protected”.

70. Neither the email nor the file note thus spoke of revoking the respondent’s “clearance”. Nor was either expressed in terms of forbidding the respondent from attending departmental sites. Both were expressed as requests rather than binding decisions. When ISS subsequently sought advice from Property NSW of the contractual significance of the email, it described it as a “request”. Mr Naividi’s requests were not definitive and did not invoke any particular powers. It is difficult to regard them as a “decision”. Yet it was the applicant who invoked that language in this case, describing Mr Naividi’s position in its “Response to Summons” as a “decision … to revoke the Plaintiff’s access as a cleaner employed by [ISS] to any of the Defendant’s facilities”.

71. In any event, as described above (at [17]), when ISS sought advice from Property NSW “on the request from contractual perspective”, the representative of Property NSW said that “[a]s EPAC have revoked the clearance of Mr Stevo Derikuca, he is no longer permitted to work under the WoG Contract”. Property NSW thus seemingly took the view that: (a) it was open under the contract for EPAC to revoke someone’s clearance with some automatic effect of preventing that person from working (seemingly in any part of the NSW Government); and (b) that is what EPAC had done here. As noted, neither party has sought to establish proposition (a) in this Court. Proposition (b) was mistaken, as just explained.

72. It is apparent that this position led ISS to terminate the employment of the respondent. As noted above, its letter of 25 March 2020 said that “EPAC have revoked your clearance”. This understanding was inconsistent with how Mr Naividi of EPAC understood the situation. Mr Naividi told the respondent on 28 April 2020 that “we asked that ISS not employ you on our sites. That would not preclude you from working at other ISS sites”.

73. In this Court the applicant sought to characterise what Property NSW did as exercising its contractual right under cl 5.5.1(e) of the contract to direct ISS “not to engage a particular employees/Subcontractor [sic] at a Facility”, which it was entitled to do “without being required to give any reason”. It is neither necessary nor appropriate to determine if that characterisation is correct, as the lawfulness of what Property NSW did was not raised in this proceeding and Property NSW is not a party to this proceeding.

The declaration should be set aside

74. In the context outlined it is understandable why the respondent wanted to challenge the “First Decision” which he considered had led to ISS terminating his employment. Given that the applicant had argued below that Mr Naividi had himself been exercising the contractual right under cl 5.5.1(e) of the contract, it was understandable that the primary judge granted a declaration to the effect that the applicant (and thus Mr Naividi) had no power to do so.

75. The applicant now does not contest that it did not have power to exclude the respondent under either cl 5.5.1(e) or (f) of the ISS-Property NSW contract. That concession raises a question about the utility and appropriateness of the declaration. The key question is what purpose the declaration serves. The respondent sought to justify it as follows:

The purpose of the declaration is to state that the applicant had no right to bring the contract between ISS and the respondent to an end. This statement has a number of practical benefits. Firstly, in the parallel proceedings before the Fair Work Commission this is a question which may have direct relevance. Secondly, and most importantly, it is used to deal with the respondent’s claim for damages.

76. The respondent has brought an unfair dismissal claim in the Fair Work Commission, which has been adjourned until resolution of these proceedings: judgment at [9].

77. The respondent’s submissions manifest why the declaration should be set aside. However, the declaration does not have the significance he claims. It does not address the power of the applicant to end the employment contract between ISS and the respondent. Rather, it is addressed to whether or not the applicant could exercise a power under the ISS-Property NSW contract. If the respondent sought to rely on the declaration in the way outlined it would be liable to cause confusion. Further, exactly how a declaration made in this case – to which ISS is not a party – could be used in Fair Work Commission proceedings against ISS was not explained.

78. As for the suggestion that the declaration “is used to deal with the respondent’s claim for damages”, as outlined above (at [25]-[35]) the better view of the proceedings is that no such claim has been made in this case. As to the claim that his Honour suggested might be made for the tort of inducing breach of contract, no such claim will be permitted to proceed (see below with respect to orders 3-4). Even if it had been, it is difficult to see how a declaration that the applicant lacked a particular power under the ISS-Property NSW contract to exclude the respondent would advance a claim that the applicant induced ISS to breach its contract of employment.

79. The applicant also argued, albeit with little exposition, that it “was erroneous as a matter of principle to make a declaration of this kind” about a contract where the two parties to the contract were not parties to the proceeding. In News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410, at 525, the Full Court of the Federal Court explained that a person was a necessary party to litigation if the orders sought had a direct effect on their legal rights and liabilities; see further John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 at [131]-[133]. The Full Federal Court said:

It is the effect of the orders upon the third party that must be determined. The test is not whether the conduct of the third party is raised in the pleadings between the existing parties, or whether the third party is a party to a contract, the meaning or effect of which is pleaded as a matter relevance to the ascertainment of the rights between those parties.

80. In Hobart International Airport Pty Ltd v Clarence City Council (2022) 96 ALJR 234; [2022] HCA 5 the High Court upheld the making of a declaration about the effect of a contract which had been sought by entities who were not parties to the lease. In that case, however, all parties to the contract were joined to the litigation.

81. No argument was directed by either side here to whether the making of the declaration would have sufficient potential effect on ISS or Property NSW to make them a necessary party. However, at the least a court would be slow to make a declaration about the effect of a contract involving persons not before the court in the absence of good reason to do so. The primary judge acknowledged as much at [132], saying “the Court could make a declaration that the First Decision was not authorised by the Contract, although the propriety of so doing in the absence of one of the parties to the contract (if not both parties to the contract) is debatable”. His Honour made the declaration nevertheless. Here, there is no good reason to make the declaration; on the contrary, to do so is liable to perpetuate confusion. And if it had been the case that the declaration would have some effect on the respondent’s claim against ISS then that suggests it should not have been made in the absence of ISS.

82. For these reasons order 2 should be set aside.

Orders 3-4: Further submissions on “outstanding issues” and mediation

83. Order 3 referred the parties to mediation before the Registrar, “which mediation should also include ISS Property Services Pty Ltd”, to occur before a particular date. The wording of this order is ambiguous, but if the order was meant to require that ISS participate in any mediation then it was improperly made given that ISS was not a party to the proceedings. Order 4 required each party to file and serve submissions “on the outstanding issues referred to in the reasons for judgment” by a particular date, if the matter did not resolve at the mediation.

84. In the context of the documents filed in the proceedings (as discussed above at [25]-[35]) it is perhaps not surprising that the primary judge referred at [41] to the respondent claiming “that the decision-makers were negligent in that they breached their statutory duties as a public authority”. It seems that his Honour considered the respondent’s reference to breach of statutory duty to be an aspect of a negligence argument, which is also how the applicant had approached that reference. However, the word “negligent” does not appear subsequently in the judgment. Although not entirely clear, it appears that his Honour considered such a claim was not made out. Under a heading “Remedy”, his Honour considered what remedy should issue in light, in particular, of his finding that the First Decision was “not authorised by the contract” (at [132]). He said at [133] that “[a]s the Department submits, the power that was purportedly exercised is granted by contract and does not involve a public duty nor a statutory right”. This can be read as a rejection of the type of negligence claim he had referred to earlier in his judgment at [41].

85. His Honour then said the following:

[134] The Court, however, is not confined to the terms of the order or the remedies agitated by the parties. The Court is required, pursuant to the terms of s 63 of the Supreme Court Act 1970 (NSW), to grant all such remedies as a party may appear to be entitled to in respect of any legal or equitable claim brought forward in proceedings so as to determine finally and completely all matters in controversy between the parties.

[135] Pursuant to the terms of s 66(1) of the Supreme Court Act, the Court has the jurisdiction, other than its inherent jurisdiction, to grant, at any stage of proceedings, an injunction or restraining order enjoining threatened or apprehended breach of contract. As for an injunction to restrain the effects of the continued imposition of a past breach of contract, such jurisdiction is a necessary aspect of a superior court of record. However, ordinarily at least, a non-party to a contract is incapable of enforcing the contract.

[136] The principles of privity of contract would have the effect of denying to the plaintiff, Mr Derikuca, the capacity to enforce the contract between ISS and the Department.

[137] It is necessary then to consider whether the tort of inducing a breach of contract may allow the plaintiff to seek damages and/or enjoin the Department from acting in the manner that it has acted and continues to act. …

86. There then followed an exposition of what is involved in a claim in the tort of inducing breach of contract. The contract in question was the contract of employment between ISS and the respondent: see judgment at [139]-[141]. At [148] his Honour said that the “basis and/or cause of action, which may give rise to a remedy against the Department at the suit of the plaintiff, was not the subject of submissions by either the plaintiff or the Department”. Then he stated the following:

[150] It is my intention to direct the parties to file and serve submissions in relation to all of the matters not otherwise addressed in the course of the proceedings thus far and to which the foregoing reasons refer. Those submissions should deal, amongst any other matter not initially the subject of submissions, with the availability of tortious action by the plaintiff against the Department for intentional interference with contractual relations and the justification, if any, for such conduct.

87. His Honour expressed the view at [154] that “the issue is capable of being resolved on a longer-term basis and I am requiring the parties to mediate the issue before a Registrar of the Court”, adding that “I am aware that the prior mediation failed, but this is a matter that should resolve”.

88. Orders 3 and 4 should not have been made. The proceedings sought to challenge two purported decisions. The primary judge had sought to resolve that challenge by way of orders 1 and 2. In this Court the respondent accepted that “[t]he two decisions were dealt with to finality, but remedies that may flow from those decisions were not dealt with”, referring then to a claim for damages. As explained, the better view of the claims made by the respondent was that they were not making a claim for damages in tort.

89. Further, the only type of damages claim foreshadowed was one in negligence and, as noted, it seems that his Honour rejected that claim. On no view had any claim been made for inducing breach of contract. That was a new suggestion raised by the primary judge. It was one made after completion of what was meant to be the final hearing. And the contract the subject of that potential claim, being the contract of employment between the respondent and ISS, was not even in evidence. Order 4 referred just to further submissions but what would really have been required was a reopening of the case with leave to plead a new claim and to file and serve new evidence. The primary judge had referred at [141] and [150] to the issue of justification and that, too, would require further evidence. The respondent seemed to accept that further evidence would be required, submitting that the order did not preclude “the primary judge from considering whether or not any amendments to pleadings could be made or whether or not any further material” received. In other words, the primary judge was raising other possible claims the respondent might pursue. In this case that exceeded the proper bounds of resolving the controversy.

87. There are circumstances in which it may be necessary or appropriate for a court to give the parties a further opportunity to make submissions even after a final hearing has concluded. For example, sometimes the judicial officer will realise that the matter raises an issue which has not been addressed by the parties, such that procedural fairness requires that they be given an opportunity to be heard. It is also not uncommon for courts to give parties an opportunity to be heard in relation to what final relief should be granted in light of the issues resolved by the judgment where sometimes the precise orders that should be made are unclear.

88. The interests of justice can require a degree of flexibility. The primary judge here invoked s 63 of the Supreme Court Act 1970 (NSW), which provides:

The Court shall grant, either absolutely or on terms, all such remedies as any party may appear to be entitled to in respect of any legal or equitable claim brought forward in the proceedings so that, as far as possible, all matters in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of those matters avoided.

92. The Federal Court equivalent of this provision was described in Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 161; [1981] HCA 48 as being:

a “Judicature Act” provision, designed to ensure that the Court can grant relief which is appropriate to both legal and equitable claims and to avoid multiplicity of proceedings. Its effect is to enable the Court to dispose of all rights, legal and equitable, in the one action, so far as that is possible …

(See also Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 489; [1981] HCA 7 per Gibbs J.)

93. Section 63 empowers the Court to grant relief to resolve the issues in controversy. It refers to the Court granting remedies as “in respect of any legal or equitable claim brought forward in the proceedings”. There is a difference between resolving the controversy brought before the Court and fomenting further disputes.

94. Much turns on the circumstances of the particular case. The respondent referred to this Court’s recent decision in Wang v Meng [2022] NSWCA 215. Both parties in that case had sought to amend their pleadings near the beginning of the hearing. The defendant was given leave to raise a new defence, on which defence it ended up succeeding. The plaintiff was denied leave to amend her claim on the basis that the defendant was not in a position to meet that case. In the course of debate there were certain exchanges between the judge and counsel for the defendant about the ability of the plaintiff to pursue a damages claim subsequently, which counsel seemed to accept was possible. In his judgment the judge rejected the plaintiff’s claim for specific performance but gave leave for the plaintiff to amend her claim to make a claim for damages. In so doing the judge in that case, like the primary judge here, invoked s 63 of the Supreme Court Act 1970 (NSW).

95. This Court refused leave to appeal from the discretionary decision of the Court below to allow further amendments. White JA, speaking for the Court, noted at [28] that s 63 “gives expression to a principle that is also reflected in s 64(2) of the Civil Procedure Act 2005 (NSW)”, which section provides:

Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.

96. The respondent in this case relied upon the following statement:

[34] … It is open to a judge acting under s 64(1)(a) of the Civil Procedure Act to direct an amendment to ensure that the pleaded issues reflect the real issues in controversy if that can be done without procedural unfairness and in accordance with the requirements of s 58 of the Civil Procedure Act. The judge was entitled to be satisfied that the dictates of justice required the grant of leave.

97. White JA had earlier stated the following:

[30] However, a claim for damages for breach of contract, as well as the claim for the price of the shares agreed to be transferred, was part of the controversy between the parties. The claim for the price of the shares had been pleaded and the claim for damages for breach of contract had been foreshadowed in Ms Meng’s summary of her claims for relief and opening submissions …

98. That decision is thus different from this matter. The additional claim for damages there had been raised and had not been determined.

99. By way of further illustration, in Strong Wise Ltd v Esso Australia Resources Pty Ltd (No 2) (2010) 185 FCR 237; [2010] FCA 575 the Court granted relief broader than had originally been sought but where that relief related to what had been in controversy in the proceedings: see at [44]-[45], [53]-[58].

100. Section 63 does not support what occurred here. The primary judge identified a whole new potential claim based on the tort of inducing breach of contract, which had not been raised by the respondent, which had not been addressed by the applicant, which involved quite distinct issues to those which had been addressed by the parties, and which required new evidence. Unlike Wang v Meng, neither the parties nor the Court had foreshadowed that some questions may remain open after the issues presented to the Court had been determined. The new claim raised was not part of what had been in controversy.

101. The respondent submitted that where there is a self-represented litigant the Court has a role in providing assistance and “has to put [the litigant] in the position of being able to make an effective choice”, citing this Court’s decision in Hamod v New South Wales [2011] NSWCA 375 at [309]-[316]. As Beazley JA there explained, the Court’s obligation is to ensure a fair trial for all parties. That may involve taking steps to seek to ensure that the litigant “has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial” (at [311]). But that “does not extend to advising the accused as to how his or her rights should be exercised”, and “it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant” (at [312]). To raise possible new claims in the way the primary judge did here, after conclusion of the final hearing, went beyond the assistance the Court could properly provide.

102. Even allowing for the fact that the decision was a discretionary one, his Honour erred in giving the respondent an opportunity to make a claim for inducing breach of contract pursuant to order 3. Order 4, relating to mediation, was founded on the premise that the respondent could make some such further claim. His Honour mistook the case presented by the respondent in considering that a damages claim had been made. Even if the view was taken that some damages claim had been made, his Honour erred in law in considering that s 63 of the Supreme Court Act required or authorised the Court, after having concluded a final hearing directed to all matters in dispute, to suggest further possible claims that could be pursued by the respondent of a different kind to anything put in issue. Orders 3 and 4 should be set aside.

Orders

103. The applicant did not seek costs either on appeal or at first instance. The relief sought was that the orders made below be set aside and that, instead, the summons filed on 20 July 2021 be dismissed. The fifth order made below was that the respondent be referred for pro bono assistance. That order achieved its end and should not be set aside. Further, rather than merely dismiss the summons it is preferable that the proceedings be dismissed, so as to address any lingering uncertainty that may exist with respect to the statement of claim originally filed by the respondent. The orders of the Court should be as follows:

1. Grant leave to appeal.

2. The applicant is to file a notice of appeal in the form of the draft notice of appeal within seven days of this order.

3. Appeal allowed.

4. Set aside orders 1-4 made by the Supreme Court on 14 September 2022 (as varied on 19 September 2022) and, in lieu thereof, order that the proceedings be dismissed.

104. SIMPSON AJA: I agree with Kirk JA.

105. BASTEN AJA: I agree with Kirk JA.

**********

Amendments

19 May 2023 - Paragraph [77] - corrected typographical error.

Decision last updated: 19 May 2023