Srikantha v Commonwealth of Australia (No 2)
[2020] FCA 1347
•22 September 2020
FEDERAL COURT OF AUSTRALIA
Srikantha v Commonwealth of Australia (No 2) [2020] FCA 1347
File number: VID 361 of 2019 Judgment of: SNADEN J Date of judgment: 22 September 2020 Catchwords: TORTS – dismissal of public sector employee – dismissal alleged to have been effected in contravention of applicable statutory provisions – whether alleged contraventions, if made out, give rise to cause of action in tort
PRACTICE AND PROCEDURE – interlocutory application for summary dismissal of applicant’s claim pursuant to r 26.01 of the Federal Court Rules 2011 (Cth) – application in the alternative for strike out of pleading – whether tortious cause of action is reasonably arguable – interlocutory application dismissed with costs
Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) – s 3
Civil Aviation Act 1988 (Cth)
Disability Discrimination Act 1992 (Cth)
Fair Work Act 2009 (Cth)
Federal Court of Australia Act 1976 (Cth) – s 31A
Federal Court Rules 2011 (Cth) – r 26.01
Public Service Act 1999 (Cth) – s 29
Racial Discrimination Act 1975 (Cth)
Superannuation Act 1990 (Cth) – s 13
Cases cited: Byrne v Australian Airlines Limited (1995) 185 CLR 410
Calveley v Chief Constable of Merseyside Police [1989] AC 1228
Griffith University v Tang (2005) 221 CLR 99
Josephson v Walker (1914) 18 CLR 691
Kirvek Management and Consulting Services Ltd v Attorney-General of Trinidad and Tobago [2002] 1 WLR 2792
Mallinson v The Scottish Australian Investment Company Limited (1920) 28 CLR 66
Martin v Western District of the Australian Coal and Shale Employees’ Federation Workers’ Industrial Union of Australia (Mining Department) (1934) 34 SR(NSW) 593
O’Connor v SP Bray Ltd (1937) 56 CLR 464
Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) (2011) 203 FCR 293
Porter v OAMPS Ltd (2005) 215 ALR 327
Roe v Sheffield City Council [2003] 2 WLR 848
Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397
Stannard v McIntyre (2004) 140 FCR 249
Whitaker v Rozelle Wood (1936) 36 SR(NSW) 204
Stanton, Keith M, ‘New Forms of the Tort of Breach of Statutory Duty’ (2004) 120(Apr) Law Quarterly Review 324
Division: Fair Work Registry: Victoria National Practice Area: Employment and Industrial Relations Number of paragraphs: 48 Date of hearing: 1 June 2020 Counsel for the Applicant: Mr P G Willis SC with Mr S J Moloney and Mr R A Millar Solicitor for the Applicant: Draddy Legal Counsel for the Respondent: Ms R Davern Solicitor for the Respondent: Ashurst ORDERS
VID 361 of 2019 BETWEEN: ANTHONY SRIKANTHA
Applicant
AND: COMMONWEALTH OF AUSTRALIA
Respondent
ORDER MADE BY:
SNADEN J
DATE OF ORDER:
22 SEPTEMBER 2020
THE COURT ORDERS THAT:
1.The respondent’s interlocutory application dated 4 May 2020 be dismissed.
2.The respondent pay the applicant’s costs of and related to that interlocutory application in a sum to be assessed in default of agreement, in accordance with the court’s Costs Practice Note (gpn-costs).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SNADEN J:
The applicant, Mr Srikantha, is a former employee of a Commonwealth agency known as the Australian Transaction Reports and Analysis Centre (or “AUSTRAC”). By an originating application dated 8 April 2019, he seeks relief against the respondent related to the circumstances in which that employment came to end.
By an amended statement of claim dated 3 April 2020 (hereafter, the “ASOC”), Mr Srikantha makes a number of claims relating to his former employment with AUSTRAC, including that:
(1)he was engaged (at least at the time that his employment terminated) as a “permanent employee” within the meaning attributed to that phrase by the Superannuation Act 1990 (Cth) (hereafter, the “Superannuation Act”);
(2)he was (at least at the time that his employment terminated) an “ongoing APS employee” within the meaning attributed to that phrase by the Public Service Act 1999 (Cth) (hereafter, the “PS Act”);
(3)he was a member of the Public Sector Superannuation Scheme established under or in accordance with the provisions of the Superannuation Act;
(4)throughout the period of his employment, he was subjected to various forms of bullying and/or harassment on account of his race (he is of Torres Strait Islander and Sri Lankan descent), and his physical and mental disabilities (the particulars of which need not here be recited);
(5)his employment with AUSTRAC was terminated with effect from 9 April 2013 (that termination is referred to, hereafter, as the Dismissal”);
(6)AUSTRAC attributed the Dismissal to redundancy; and
(7)in fact, the Dismissal was not actioned on account of redundancy but, rather, for reasons related to the applicant’s race, and/or his physical and mental disabilities.
The ASOC alleges that the Dismissal was effected in contravention of two statutory injunctions (referred to in more detail below). He claims damages in tort to compensate for losses that he claims to have sustained in consequence of breaches of those statutory obligations.
By an interlocutory application dated 4 May 2020, the respondent moves the court for an order that the proceeding be summarily dismissed either for want of disclosing of a reasonable cause of action or because it constitutes an abuse of the court’s process. Alternatively, it seeks an order that the ASOC be struck out on equivalent bases.
The application is supported by an affidavit of the respondent’s solicitor, Ms Jedlin, to which is attached a series of letters that outline the context within which it has been filed. There is one primary question upon which the court is asked to rule: is conduct that is engaged in in contravention of either or both of the two statutory provisions upon which the applicant relies conduct that might enliven a remedy in tort? Assuming that it is, a secondary question arises: is the proceeding otherwise an abuse of process?
For the reasons that follow, the answers to those two questions are “yes” and “no”, respectively. The respondent’s interlocutory application should (and will), accordingly, be dismissed with costs.
RELEVANT PRINCIPLES
The respondent’s application for summary dismissal proceeds under rule 26.01 of the Federal Court Rules 2011 (Cth) (hereafter, the “FCRs”). The court’s power to summarily dismiss a proceeding at the request of a respondent is not in question: Federal Court of Australia Act 1976 (Cth) (hereafter, the “FCA Act”), s 31A.
The principles governing an application for summary dismissal on the ground that a proceeding fails to disclose a reasonable cause of action are neither disputed nor in doubt. The court’s power is exercised sparingly, and only when the causes of action in respect of which it is invoked appear so weak as to warrant it. Similar principles govern the striking out of pleadings for want of disclosure of reasonable causes of action.
It is not necessary to recite those principles in any detail. In the present case, the principal issue that arises is not so much whether the facts as pleaded are capable of sustaining the cause or causes of action upon which the matter proceeds; but, rather and more fundamentally, whether the tortious cause of action that the applicant seeks to invoke is available to him at all. If it is, then there is no question that the respondent’s interlocutory application should fail, at least inasmuch as it is premised upon the proposition that the applicant has not disclosed an arguable or reasonable cause of action.
Insofar as concerns the respondent’s secondary avenue of attack—namely, that the matter (or the ASOC by which it proceeds) amounts to an abuse of process—the relevant principles are, again, neither in question nor in need of rehearsal. A proceeding will only be summarily dismissed (and a pleading will only be struck out) on that basis if the abuse is plain. As will become apparent later, I do not consider that that can be said in this matter.
THE CLAIM IN TORT
The applicant’s claims are made in tort: specifically, he alleges that the respondent contravened statutory obligations conferred upon it by the Superannuation Act and the PS Act, and did so in a way that occasioned him loss that, by this suit, he may recover as damages. It is convenient to identify the statutory duties upon which he relies.
As at 9 April 2013 (when the applicant’s employment with AUSTRAC was terminated), section 13(1) of the Superannuation Act provided as follows:
13Member not to be retired on grounds of invalidity without certificate from CSC
(1)In spite of anything contained in any Act, industrial award or contract of employment, a member who is under the age of 60 is not capable of being retired from the employment or office by virtue of which he or she is a member on the ground that, because of any mental or physical condition, the member is unable to perform his or her duties, unless CSC has certified in writing that, if the member is so retired, the member will be entitled to receive invalidity benefits under the Public Sector Superannuation Scheme.
Also at that time, s 29(3) of the PS Act provided as follows:
29Termination of employment
…
(3) For an ongoing APS employee, the following are the only grounds
for termination:
(a)the employee is excess to the requirements of the Agency;
(b)the employee lacks, or has lost, an essential qualification for performing his or her duties;
(c)non-performance, or unsatisfactory performance, of duties;
(d)inability to perform duties because of physical or mental incapacity;
(e)failure to satisfactorily complete an entry level training course;
(f)failure to meet a condition imposed under subsection 22(6);
(g)breach of the Code of Conduct;
(h)any other ground prescribed by the regulations.
By the ASOC, the applicant alleges that the Dismissal was effected in contravention of both of those provisions. He alleges that, although the respondent nominated redundancy (or an analogue of redundancy) as the reason for the Dismissal, it was, in fact (and at least in part), effected because of the applicant’s race, or because of his physical and/or mental disabilities. Insofar as it was effected because of his race, it was (he alleges) effected in breach of the duty imposed by s 29(3) of the PS Act. Insofar as it was effected because of his physical or mental disabilities, it was (he alleges) effected in breach of the duty imposed by s 13(1) of the Superannuation Act. The applicant alleges that, as a result of the Dismissal, he has endured various species of loss, which he seeks to recover as damages.
The elements of the tort upon which the applicant moves are not disputed. It is committed when a respondent visits injury or loss upon another by acting in contravention of a statutory injunction that is enacted for the other party’s protection or benefit (or for the protection or benefit of a class to which the other party belongs), and that is, upon its proper construction, intended to impose a civil liability for any such injury or damage: Byrne v Australian AirlinesLimited (1995) 185 CLR 410, 424 (Brennan CJ, Dawson and Toohey JJ). In Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397, Kitto J (with whom Owen J agreed, McTiernan ACJ agreeing in the result, Taylor and Windeyer JJ dissenting) put it thus (at 404):
In the case of an enactment…prescribing conduct to be observed by described persons in the interests of others who, whether described or not, are indicated by the nature of a peril against which the prescribed conduct is calculated to protect them, the prima facie inference is generally considered to be that every person whose individual interests are thus protected is intended to have a personal right to the due observance of the conduct, and consequently a personal right to sue for damages if he be injured by a contravention.
The issue arising presently is whether the intention underlying the statutory provisions upon which the applicant relies was to create the private cause of action that, by this proceeding, he seeks to prosecute. The respondent contends that no such intention animates either provision and that, that being so, the applicant’s claims are untenable to an extent that warrants summary dismissal of the proceeding.
Neither of the Superannuation Act or the PS Act makes express provision for any sanctions to address conduct engaged in in contravention of their provisions. If he is to succeed on the claims that he prosecutes, the applicant will need to satisfy the court that the two provisions upon which he relies should, as a matter of inference, be construed so as to excite the application of the tort.
Doing so is no easy task. It was, of course, open to the Parliament to bake into both of the enactments upon which attention presently focuses remedies creating private rights to recover damages for their breach. It has been said—I think correctly—that, “[i]f Parliament had intended such a right to exist, it is difficult to see why it did not use familiar mechanisms to create it expressly”: Keith M Stanton, ‘New Forms of the Tort of Breach of Statutory Duty’ (2004) 120(Apr) Law Quarterly Review 324-341. That, though, is a knife that cuts both ways: if the Parliament legislates to require or prohibit particular conduct, can it really have intended that the victims of conduct engaged in in contravention of that requirement or prohibition should have no means of addressing it?
It is “relatively rare” for courts to infer the legislative intention upon which the existence of the tort depends: Porter v OAMPS Ltd (2005) 215 ALR 327, 353 [110] (Goldberg J). That intention will less likely be inferred in respect of a particular statutory obligation where the enactment within which it is found makes express provision for other means of enforcement: Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) (2011) 203 FCR 293 (“Polar Aviation”), 315 [81] (Kenny J); Martin v Western District of the Australian Coal and Shale Employees’ Federation Workers’ Industrial Union of Australia (Mining Department) (1934) 34 SR(NSW) 593 (“Martin”), 596 (Jordan CJ, with whom Stephen and Maxwell JJ agreed).
Cases in which the availability of the tort has been recognised—both in Australia and in the United Kingdom—are numerous and long-standing. It has been found to be available to compensate for the non-payment of award wages (Mallinson v The Scottish Australian Investment Company Limited (1920) 28 CLR 66), for injuries sustained in consequence of the breach of legislated safety standards (O’Connor v SP Bray Ltd (1937) 56 CLR 464; Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397), for injuries arising from the breach of a statutory prohibition against the employment of children (Whitaker v Rozelle Wood (1936) 36 SR(NSW) 204), for losses arising from the improper payment of money into court (Kirvek Management and Consulting Services Ltd v Attorney-General of Trinidad and Tobago [2002] 1 WLR 2792), and for injuries resulting from the breach of a statutory obligation to lay tram tracks level with the surface of a roadway (Roe v Sheffield City Council [2003] 2 WLR 848). In each case, the availability of the tort turned upon consideration of the enactment within which the duty that was said to have been contravened resided. The question, as Jordan CJ stated it in Martin (at 597-598):
…is in every case to be resolved by a consideration of the Act as a whole. There is no hard and fast rule which can be applied to solve any particular case…
By its written submissions in support of the interlocutory application, the respondent contended that neither of the Superannuation Act or the PS Act had been enacted for the applicant’s benefit. It made the following observations about the purposes of those enactments:
The [Superannuation Act] is directed to the establishment of a Public Sector Superannuation Scheme. The [PS Act] is directed primarily at establishing an apolitical public service and the management of that public service. Neither statute[…] evince[s] any intention to create a private cause of action by inference.
The purposes that the respondent attributes to the two enactments presently in focus may be accepted. It does not follow, however, that neither can be understood to have been enacted for the benefit or protection of the applicant (or a class to which he belongs). Indeed, I am unable to see how either of the provisions upon which the applicant relies could be described as conferring anything other than a benefit or protection afforded to a class of which he was (or at least claims to have been) a member.
The mischief to which s 13(1) of the Superannuation Act was directed is plain enough: it served to constrain the otherwise unremarkable rights of the employers that it covered to dismiss their employees for want of required mental or physical capacity. Before an employer—including the respondent—could purport to exercise that right of dismissal, it first had to acquire the certification to which the section referred. Plainly, that had the effect of ensuring, in circumstances where dismissal on the grounds of incapacity was otherwise in play, that an employee to whose employment the section applied would (initially) remain employed until the required certification was obtained, and would (thereafter) qualify for the invalidity benefits to which that certification referred.
Section 29(3) of the PS Act is equally clear in its objectives. By s 29(1), an “Agency Head” (which, for present purposes, can be equated with the role of an employer) is given statutory authority to terminate, by written notice, the employment of APS employees within his or her “agency”. Subsections (2) and (3) then stipulate constraints upon the exercise of that power. Section 29(2) identifies specific content that must, in certain circumstances, be included within any such written notice. Section 29(3)—upon which present attention focuses—enumerates an exhaustive list of reasons for which the power conferred by s 29(1) might be exercised as against ongoing APS employees. Dismissal for any other reason is, plainly enough, prohibited.
The respondent contends that neither provision conferred upon it any prohibition or mandatory duty. Respectfully, I am unable to agree. I can discern no other purpose behind either provision than to require that employers conduct themselves in particular ways.
The question that then arises is whether the intention behind either enactment was that a private cause of action should endure to address conduct engaged in in contravention of what was required. The respondent contends that that question should be answered in the negative for two reasons: first, because neither of the provisions was enacted for the applicant’s benefit; and, second, because other remedies exist to address the wrongful exercises of power that the applicant alleges.
The first of those contentions I have already addressed. I do not accept that the two provisions presently in focus were anything other than protections enacted for the benefit or protection of a class of people to which, in each case, the applicant belonged. Section 13(1) of the Superannuation Act afforded members of the Public Sector Superannuation Scheme (for which provision was made elsewhere in that act) a measure of protection (in the form of superannuation-related benefits) in the event that they were dismissed for want of mental or physical capacity. It is not controversial that the applicant was such a member. Section 29(3) of the PS Act afforded ongoing APS employees a measure of protection from dismissal on grounds other than those expressly enumerated. It is not apparently in contest (and, in any event, the applicant alleges) that the applicant was an ongoing APS employee for the purposes of the PS Act.
The second contention requires analysis. The respondent maintains that the applicant had at his disposal other means of addressing what he alleges was the wrongful termination of his employment. Insofar as he attributes his dismissal to his race, he was (so the respondent contends) able to prosecute that case under the provisions of the Fair Work Act 2009 (Cth) (the “FW Act”), the Racial Discrimination Act 1975 (Cth) (the “RD Act”) or even the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the “ADJR Act”). Insofar as he attributes it to his mental or physical disabilities, he was (so the respondent contends) able to prosecute that case under the provisions of the FW Act, the Disability Discrimination Act 1992 (Cth) or the ADJR Act.
I proceed, for the time being, upon the presumption that those enactments afford the applicant remedies of the kind that the respondent nominates. As has already been identified, the existence of statutory remedies adequate to address conduct engaged in in contravention of a statutory duty is a factor—and probably a significant, in many cases decisive, factor—that informs whether there might also exist a legislative intention of the kind upon which a tortious cause of action depends: Martin, 597 (Jordan CJ, with whom Stephen and Maxwell JJ agreed); Polar Aviation, 315 [81]-[83] (Kenny J).
The difficulty with the respondent’s submission, respectfully, is that it is not the applicant’s case that the Dismissal was unlawful because it was effected on account of (or for reasons that included) his race or his physical or mental disabilities. His case is that he was dismissed (first) without having been the subject of prior certification under s 13(1) of the Superannuation Act, and (second) for a reason or reasons that were not authorised under s 29(3) of the PS Act. It is those obligations—the obligation not to dismiss a member of the Public Sector Superannuation Scheme for reasons of mental or physical incapacity without prior certification under s 13(1) of the Superannuation Act and the obligation not to dismiss an ongoing APS employee for a reason or reasons not listed in s 29(3) of the PS Act—that the applicant maintains were contravened; and, contravened, specifically, in a manner than occasioned him loss that he is at liberty to recover as damages in tort.
It is not the applicant’s case that he ought not to have been dismissed on account of his physical or mental incapacities. At the risk of repetition, his case—insofar as it is premised upon the Superannuation Act—is that he could only be dismissed for that reason if he was the subject of prior certification under s 13(1); and that, having been Dismissed before that occurred, he was the victim of a breach of statutory duty. With the possible exception of the ADJR Act (to which I shall shortly return), none of the other enactments to which the respondent points affords him any remedy in those circumstances.
Insofar as his case is premised upon the PS Act, the position is more complex. There is, of course, a close correlation between the cause of action that the applicant prosecutes for breach of the PS Act and the causes of action that he undoubtedly could have prosecuted under the FW Act and/or the RD Act. What the respondent says in that sense is true: he could have fashioned a discrimination claim under those enactments and moved for much the same relief—or, at least, for relief that largely overlaps with the same relief—that he seeks by this proceeding. But to observe as much is to mask the nature of his present claim. Here, the applicant alleges that he was dismissed for a reason that the PS Act did not authorise (namely, his race). To succeed on that claim, he will need to demonstrate—and, at this juncture, to plead—the reason or reasons for which he alleges that he was dismissed. Doing so is necessary to demonstrate that that reason was (or those reasons were) not amongst the authorised reasons for which s 29(3) of the PS Act provides. But that is not to convert the case into one for racial discrimination. The only significance that attaches to the issue of his race presently is that race is not one of the reasons for which s 29(3) of the PS Act authorised his dismissal.
In any event, the existence of the tort—and, in particular, the legislative intention upon which that existence rests—is not informed by factors specific only to this case. Here (and insofar as his reliance upon the PS Act is concerned), the applicant nominates race as the unauthorised reason for which he was dismissed. But the panoply of unauthorised reasons that might enliven the same cause of action in other circumstances is limited only by human imagination. It is not difficult to conceive of circumstances in which an ongoing APS employee might be dismissed for reasons that s 29(3) of the PS Act doesn’t authorise, but for which no other enactments afford any (or any adequate) remedy.
It is, at this point, convenient to make mention of the ADJR Act. The respondent contends that that enactment conferred upon the applicant remedies to address the Dismissal, the existence of which should tell against constructions of the Superannuation Act and the PS Act that recognise the legislative intention upon which his tortious cause of action depends. Respectfully, I am not satisfied that it does.
Broadly speaking (and subject to qualifications to which reference need not presently be made), the ADJR Act applies in respect of decisions of an “administrative character” that are made under other statutes. It is not clear that the Dismissal necessarily qualifies as such a decision, although it would seem to. It is likely that the ADJR Act affords the applicant—or any applicant aggrieved by a dismissal effected contrary to s 13(1) of the Superannuation Act and/or s 29(3) of the PS Act—a remedy of the kind that the respondent alleges.
The applicant suggested that the ADJR Act would not afford him any remedy in respect of a decision to terminate his employment, citing Stannard v McIntyre (2004) 140 FCR 249 (and, in particular, a passage from the judgment therein of Madwick J) as authority for that proposition. With respect, that reliance was misplaced. If anything, that case demonstrates that the ADJR Act might serve as a means of challenging such a decision. Although I needn’t decide the point, I would be slow to conclude that a decision by a commonwealth agency to exercise a statutory power to dismiss a public servant (assuming that that is what occurred here) was not a “decision to which [the ADJR Act] applies”: ADJR Act, s 3; see, also and generally, Griffith University v Tang (2005) 221 CLR 99.
In any event, I am not persuaded that the potential existence of a right of judicial review under the ADJR Act (or otherwise) is sufficient to exclude a private right of action in the present case. In divining the intention that underpins a particular legislative duty, the authorities suggest that attention should not stray much (or perhaps at all) beyond the terms of the legislation itself. In Martin, Jordan CJ (with whom Stephen and Maxwell JJ agreed) spoke of circumstances that tend to negative the existence of a private right or action to recover damages for breach of a statutory duty. His Honour held (at 596; emphasis added) that:
…the most important is the provision by the statute which creates the new duty of a special means for its enforcement.
Griffith CJ and Isaacs J made similar observations in Josephson v Walker (1914) 18 CLR 691 (at 696 and 700 respectively), although the issue that arose in that case was whether the means established by a statute for the enforcement of a particular duty should be understood as exclusive of other causes of action.
I do not foreclose upon the possibility that Parliament’s intention in enacting the two provisions in focus presently might be informed by the existence of remedies buried within the vast recesses of the commonwealth legislative universe. I am, however, unaware of (and was not alerted to) any authority in this country that says as much. The closest seems to be Polar Aviation, upon which the respondent placed heavy reliance. There, Kenny J determined (at 315 [83]) that the requisite legislative intention did not exist because any wrongful exercise of power under the statute there in question—the Civil Aviation Act 1988 (Cth) (hereafter, the “CAA”)—was amenable to correction under (or otherwise protected against by) “…the procedural fairness protections of the CAA; merits review by the AAT; judicial review; and, in an appropriate case, the tort of misfeasance in public office”. The CAA itself made provision for the review of decisions concerning the issuing, variation or cancellation of an Airline Operator’s Certificate (upon which that proceeding focused). Her Honour made no mention of the AJDR Act.
In Calveley v Chief Constable of Merseyside Police [1989] AC 1228, the availability of judicial review was a circumstance that inclined against the existence of a tortious cause of action. There, a police officer who was the subject of misconduct charges contended that the breach of a statutory obligation to provide him with prompt notice of the matters alleged against him was relevantly tortious. Referring to that obligation, Lord Bridge of Harwich (with whom Lords Ackner, Oliver of Aylmerton, Goff of Chieveley, and Lowry agreed) made the following observations:
That the duty is imposed for the benefit of the police officer subject to investigation is plain. But it seems to me equally plain that the legislature cannot have contemplated that the object of the duty was to protect the officer from any injury of a kind attracting compensation and cannot therefore have been intended to give him a right to damages for breach of the duty. The duty is imposed as a procedural step to protect the position of the officer subject to investigation in relation to any proceedings which may be brought against him. If he is not prejudiced in any such proceedings by failure to perform the duty, he has no ground of complaint. If […] the delay in giving notice under regulation 7 coupled with other factors causes irremediable prejudice to the officer in disciplinary proceedings which result in his conviction of an offence against the discipline code, he has his remedy by way of judicial review to quash that conviction and nullify its consequences. The proposition that the legislature should have intended to give a cause of action in contemplation of the remoter economic consequences of any delay in giving notice under regulation 7 is really too fanciful to call for serious consideration.
I do not think that the same can be said of the statutory obligations of relevance to the present case. Here, economic loss is an obvious and immediate consequence of breach of either statutory duty. The provisions serve, by design, as a measure of protection against the visitation of such losses. The prospect that a decision to dismiss an employee in breach of either duty might be undone by a process of judicial review is not, in my view, indicative of a want of intent, on the part of the legislature, that such conduct should attract a remedy in tort.
Although there is scope for hesitation, I am satisfied that both of the statutory provisions upon which the applicant relies imposed mandatory obligations upon the respondent, the breach of which would give rise to tortious causes of action that cannot be impugned as ambitious to a point that warrants the proceeding’s summary dismissal or the striking out of the ASOC.
ABUSE OF PROCESS
In the alternative, the respondent submits that the proceeding is ripe for summary dismissal—or otherwise that the ASOC should be struck out—on the basis that it constitutes (or gives voice to) an abuse of process. That abuse is said to manifest in the reality that the claims that the applicant advances are claims of discrimination on the basis of race and disability. Such discrimination claims, the submission continues, are actionable only pursuant to statute; and, insofar as he seeks to achieve by an action in tort that which is restricted to statutory causes of action, the applicant’s suit amounts to an abuse or abuses of process.
Largely for reasons already stated, that submission cannot be accepted. The applicant does not advance a claim of discrimination on the basis of race or disability. Whether or not he might have done so is beside the point. If, as I have found, it is open to argue on the facts pleaded that the Dismissal was effected in contravention of statutory duties, and that those contraventions are of a kind in respect of which a tortious right of action arises, then it is open to the applicant to pursue that cause if he wishes, including to the exclusion of any others that might also have been available.
In any event, the applicant does not allege that the Dismissal was unlawful because it was effected because of (or for reasons that included) his physical or mental disabilities. He alleges—at least insofar as his case rests upon an alleged contravention of s 13(1) of the Superannuation Act—that the Dismissal was unlawful because it was effected before he had been made the subject of the certification to which that section referred. That claim cannot fairly be described as one of discrimination.
Insofar as his case rests upon an alleged contravention of s 29(3) of the PS Act, the applicant maintains that the Dismissal was effected on account of (or for reasons that included) his race. But he does so only in aid of establishing that the reason or reasons for the Dismissal was or were not authorised under s 29(3) of the PS Act. His case is not that the Dismissal was unlawful because it was actuated by reason of his race; his case is that it was unlawful because it was not premised upon a reason or reasons that s 29(3) of the PS Act authorised.
So understood, neither the claims that the applicant advances, nor the pleading by which he advances them, can be impugned as an abuse of process.
DISPOSITION
The respondent’s interlocutory application of 4 May 2020 should (and will) be dismissed. The parties are agreed—and there is, in any event, no basis for doubting—that the costs incurred in connection with that application should follow the event. That being so, there will also be an order requiring that the respondent pay the applicant’s costs of and pertaining to the application.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden. Associate:
Dated: 22 September 2020
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