Sherman v La Trobe University - [2005] HCATrans 62

[2005] HCATrans 062

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M96 of 2002

B e t w e e n -
PETER SHERMAN
Applicant
and
LA TROBE UNIVERSITY
Respondent

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 24 FEBRUARY 2005, AT 2.40 PM

MR P. SHERMAN appeared in person.

MR N.J. O’BRYAN, SC: Your Honour, I appear for the respondent university. (instructed by Corrs Chambers Westgarth)

HIS HONOUR: Mr Sherman, perhaps if you could be good enough to come to the lectern again, because it will be necessary to transcribe what is said. I have read your summons filed on 14 January, being the summons dated 1 January, I have read an affidavit of yours sworn 14 January. I have read an outline of submissions in support of application for interlocutory orders dated 23 February 2005. I have also read the respondent’s submissions in connection with the applicant’s summons, a document dated 23 February. Do you have a copy of that document of the respondent’s?

MR SHERMAN: I do, your Honour, yes.

HIS HONOUR: Mr O’Bryan, is there any objection to Mr Sherman reading and relying upon his affidavit of 14 January?

MR O’BRYAN: No, your Honour.

HIS HONOUR: Yes. That is read. Now, Mr Sherman, what else is it that you would wish to say?

MR SHERMAN: Thank you, your Honour. Your Honour, I would like to begin by stating that the trigger for this application was the occurrence of four events. The first event was the letter from the Principal Registrar, that was to myself, saying – and I quote specifically – “These provisions for applications for leave and special leave to appeal are made by Rule 41.11 and for applications for removal by Rule 26.05. They apply to all applications for leave and special leave and to all applications for orders for removal which have not yet been determined.” That means that this application may, but would not be decided on the papers that the parties have filed without an oral argument. That letter was dated 23 November. The second event ‑ ‑ ‑

HIS HONOUR: I think I am right in saying that such a letter went to every party having a matter then pending in the Court, Mr Sherman. Be that as it may ‑ ‑ ‑

MR SHERMAN: Thank you, your Honour. The second point was a speech that your Honour had made at a number of seminars for the members of the legal profession, and if I can summarise it, or a portion of it, by saying that your Honour’s seven day seminars appears to contradict what that letter said. If I may read the excerpt that I am relying on – and I am sure your Honour is aware perhaps about what portion of this speech that I am relying on. Your Honour said that:

Then there are the changes made which will permit the Court to deal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] HCATrans 62
Decision Date

CaseChat Overview and Summary

Sherman (the applicant) brought proceedings against La Trobe University (the respondent) in the Federal Court of Australia. The applicant alleged that the respondent had breached its duty of care to her by failing to take reasonable steps to prevent her from suffering psychiatric injury. The applicant claimed that she had been subjected to a campaign of harassment and bullying by a colleague, and that the university had failed to adequately address her complaints, leading to her developing a psychiatric illness.

The central legal issue before Hayne J was whether the respondent owed a duty of care to the applicant to prevent her from suffering psychiatric injury arising from the conduct of a third party (her colleague) within the workplace. This involved considering the scope of an employer's duty of care in relation to the psychological well-being of its employees, particularly when the harm alleged arose from the actions of another employee. The court also had to determine whether, assuming a duty of care existed, the respondent had breached that duty by failing to take reasonable steps to prevent the harm.

Hayne J found that an employer does owe a duty of care to its employees to take reasonable steps to prevent them from suffering psychiatric injury arising from the conduct of other employees. However, his Honour held that the respondent had not breached this duty. The court reasoned that the respondent had taken some steps to address the applicant's complaints, including investigating the matter and implementing certain measures. While these steps may not have ultimately resolved the applicant's distress, they were found to be reasonable in the circumstances, and the respondent could not be held liable for failing to achieve a perfect outcome. The court concluded that the respondent had acted reasonably in its response to the applicant's allegations.

Orders