Tucker v State of Victoria - [2019] VSC 420

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISON
EMPLOYMENT AND INDUSTRIAL LIST

S CI 2017 05032

TOBIAS JOHN TUCKER (also known as Toby Tucker)	Plaintiff
v
THE STATE OF VICTORIA	First Defendant
PAUL BRODERICK (sued in his capacity as Commissioner of State Revenue)	Second Defendant

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	4, 5, 6 February 2019, 7 May 2019 (further submissions on 13 May 2019, 17 May 2019)
DATE OF JUDGMENT:	16 July 2019
CASE MAY BE CITED AS:	Tucker v State of Victoria
MEDIUM NEUTRAL CITATION:	[2019] VSC 420

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EMPLOYMENT – Construction of employment contract – Whether letter of offer formed part of contract – Toll FGCT Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 – Whether a term of an enterprise agreement was incorporated into contract by reference – Whether failure to provide materials and particulars concerning workplace investigations a breach of employment contract or Public Administration Act 2004 s 20(3) – Whether investigation framed allegations so as to shift the onus of proof onto employee.

STATUTORY INTERPRETATION – Applicable principles – Construction of Public Administration Act 2004 ss 8, 20(3) — Whether s 8 imposes an obligation to comply with processes established under it – Whether failure to follow a process established pursuant to s 8 is a breach of s 20(3) of that Act – Quinn v Overland [2010] FCA 799.

PRACTICE AND PROCEDURE – Pleadings – Amendment principles – Whether it is necessary to expressly plead a statutory provision pursuant to Supreme Court (General Civil Procedure) Rules 2015 r 13.02(1)(b) — Agtrack (NT) Pty Ltd v Hatfield (2003) 7 VR 63 – Abuse of process – Whether application by the plaintiff to reintroduce a claim under Fair Work Act 2009 (Cth) s 50 an abuse of process where claim disallowed at earlier interlocutory stage – Commissioner of State Revenue v Mondous (2018) 55 VR 643 – Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd [2006] VSC 170 – Racovalis v Rescom Mortgages Pty Ltd (2010) 28 VR 250 – Tucker v State of Victoria [2018] VSC 389 – Civil Procedure Act 2010 ss 7, 25.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Irving QC with Ms M A Paszkeiwicz	Aitken Partners
For the First and Second Defendants	Mr P R D Gray QC (4–6 February 2019) and Mr P J Hanks QC (7 May 2019) with Ms J F Swanwick	Maddocks

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Summary of findings......................................................................................................................... 1

Background......................................................................................................................................... 2

Evidence............................................................................................................................................... 4

Is cl 21 of the VPSEA incorporated into the plaintiff’s employment contract by reference? 6

The plaintiff’s submissions.......................................................................................................... 6
The defendants’ submissions...................................................................................................... 8
Analysis........................................................................................................................................ 10

Does the obligation imposed on a public service body Head by s 8 of the PAA extend beyond an obligation to establish processes that meet the description in that section and impose an obligation that the processes so established must be complied with in respect of a particular employee? 15

The plaintiff’s submissions........................................................................................................ 16
The defendants’ submissions.................................................................................................... 16
Analysis........................................................................................................................................ 18

Is a breach of cl 21 of the VPSEA a breach of s 20(3) of the PAA?.......................................... 24

Did the failure to provide an unredacted copy of the First Report and/or its annexures breach s 20(3) of the PAA or cl 21 of the VPSEA?............................................................................................... 26

The plaintiff’s submissions........................................................................................................ 26
The defendants’ submissions.................................................................................................... 27
Evidence and analysis................................................................................................................ 29

Did the failure to provide the particulars concerning the basis upon which it was said the plaintiff had no known work purpose in conducting the searches the subject of the Second Report breach s 20(3) of the PAA or cl 21 of the VPSEA?.......................................................................................... 38

The plaintiff’s submissions........................................................................................................ 38
The defendants’ submissions.................................................................................................... 39
Evidence and Analysis............................................................................................................... 41
Analysis........................................................................................................................................ 52

Did the defendants cast the onus or burden of proof with respect to determination of whether the Second Allegations were conducted for no known work purpose on the plaintiff? If so, did this breach s 20(3) of the PAA or cl 21 of the VPSEA?................................................................ 57

The plaintiff’s submissions........................................................................................................ 57
The defendants’ submissions.................................................................................................... 57
Evidence and analysis................................................................................................................ 58

Is it necessary to amend the 2FASOC to expressly plead a contravention of s 50 of the FWA in order to seek relief for that contravention?........................................................................................... 61

The plaintiff’s submissions........................................................................................................ 61
The defendants’ submissions.................................................................................................... 62
Analysis........................................................................................................................................ 62

Is the plaintiff permitted to amend his claim to plead a breach of s 50 of the FWA?.......... 63

The defendants’ submissions.................................................................................................... 64
The plaintiff’s submissions........................................................................................................ 66
Applicable principles................................................................................................................. 68
Analysis........................................................................................................................................ 70

Conclusion......................................................................................................................................... 76

HER HONOUR:

Introduction

The plaintiff, Mr Tucker, challenges two workplace investigations into his conduct. His employer proposes to terminate his employment. The plaintiff applies for declaratory relief together with injunctions prohibiting his employer from reaching a final decision with respect to the disciplinary outcomes flowing from the investigations.

The plaintiff is employed as a senior solicitor at the State Revenue Office (‘SRO’). The first defendant, the State of Victoria (‘the State’), is his employer. The second defendant is the Commissioner of State Revenue (‘the Commissioner’). The Commissioner exercises delegated powers in respect of SRO employees.

One critical issue in this proceeding concerns the terms and conditions of the plaintiff’s contract of employment, including whether a clause relating to workplace investigations in the applicable enterprise agreement is incorporated. Another critical issue concerns the application of the Public Administration Act 2004 (‘PAA’).

Summary of findings

Firstly, the plaintiff’s claim that the defendants breached his employment contract is rejected. I find cl 21 of the Victorian Public Service Enterprise Agreement 2016 (‘VPSEA’) was not incorporated into his contract of employment. Further, even if cl 21 were incorporated into the contract, there was no breach of it by the defendants.

Secondly, I reject the plaintiff’s claim that the defendants breached s 20(3) of the PAA. Moreover, I find that ss 8 and 20(3) of the PAA do not oblige the defendants to comply with processes established under s 8. Even if they did, there was no breach of cl 21 of the VPSEA insofar as it is referred to by a process document established under s 8.

The plaintiff made a last minute application to amend his second further amended statement of claim (‘2FASOC’). He proposed to include a claim for breach of the VPSEA as a separate cause of action by pleading contravention of s 50 of the Fair Work Act 2009 (Cth) (‘FWA’). Approximately one year ago in this proceeding, McDonald J ruled that the plaintiff could not amend his pleading to include a claim for contravention of s 50 of the FWA. The current application is an abuse of process and is disallowed.

Background

The VPSEA applies to the plaintiff’s employment.

The plaintiff commenced employment with the first defendant in November 2011 as a solicitor at the SRO.

Approximately two years later, the plaintiff received a letter from the SRO dated 4 October 2013 (‘the covering letter’) offering employment as a Senior Solicitor in the Customer Services and Debt Management Branch of the SRO. He signed an attached document titled ‘Acceptance of Employment Terms’ the same day (‘the acceptance document’).

On 9 June 2017, the SRO wrote to the plaintiff advising of allegations of workplace misconduct made against him. These allegations concerned two different subject matters and led to two investigations.

The first investigation concerned allegations of inappropriate conduct towards another employee of the SRO, including ‘inappropriate, harassing and offensive comments’ and ‘repeatedly requesting that [the SRO employee] accept your friendship request on Facebook’ (‘the First Allegations’).

The second investigation concerned allegations of ‘numerous searches of customer records on the SRO eSys database, which are not related to any known SRO business purpose’ (‘the Second Allegations’).

The plaintiff was suspended with pay during the course of the investigations, and indeed, continues to be an employee of the first defendant.

The plaintiff’s solicitors and the SRO corresponded during the investigations. During the course of this correspondence, the plaintiff’s solicitors outlined various objections to the investigations.

On 21 June 2017, Mr David Heywood, Branch Manager, Human Resources of SRO, wrote to the plaintiff advising that Ms Lisa Klug, Associate Director, Worklogic, had been appointed as an investigator. Initially, Ms Klug was engaged to investigate both sets of allegations, however, she was subsequently only retained to investigate the First Allegations. This occurred after the plaintiff expressed concerns that if Ms Klug were to continue to conduct the investigation into the Second Allegations she would be exposed to confidential information in breach of the Taxation Administration Act 1997.

On 21 August 2017, Mr Joyce, Executive Director, Corporate Services, SRO wrote to the plaintiff’s solicitors advising that Mr Don Di Federico, Branch Manager of Investigations in the Compliance Division of SRO, had been appointed to undertake the investigation into the Second Allegations.

Ms Klug completed her investigation and a report dated 12 September 2017 (‘the First Report’). On 25 October 2017, Mr Joyce wrote to the plaintiff and provided a summary of Ms Klug’s findings in relation to the First Allegations. Mr Joyce then proposed a disciplinary outcome consisting of a formal warning and a direction to undertake appropriate training concerning the obligations under the Victorian Public Sector Code of Conduct, the SRO Values and Behaviours, and the SRO Equal Opportunity Policy.

The plaintiff, after correspondence from his solicitors, eventually received the First Report but it contained redactions and, despite request, was not given an unredacted copy of it.

On 12 December 2017, the plaintiff filed this proceeding seeking interlocutory and permanent injunctions prohibiting the defendants from proposing a disciplinary outcome in respect of cl 21 of the VPSEA and the First and Second Allegations, or alternatively, declaratory relief that the defendants failed to afford him procedural fairness and/or failed to provide him with all relevant material before the decision-maker. The plaintiff also sought an unredacted copy of the First Report and attachments to it.

On 7 February 2018, Mr Joyce wrote to the plaintiff attaching Mr Di Federico’s complete investigation report into the Second Allegations (‘the Second Report’).[1] Mr Joyce accepted the findings. The findings in the Second Report were that 24 of the 26 allegations against the plaintiff were substantiated while two were not. Mr Joyce stated that he proposed to recommend that the plaintiff’s employment be terminated.
[1]On 13 February 2018, the plaintiff’s solicitors wrote to Mr Joyce that the report had been provided directly to the plaintiff, not to their office, and that they required a redacted copy of the report to ensure that taxpayer names were not identified. These issues were ultimately not pursued at trial.

On 2 March 2018, the Court made consent orders. The plaintiff gave an undertaking as to damages, and the defendants gave an undertaking that, save for further order or unless otherwise agreed, they would not finalise the proposed disciplinary outcomes (set out in the letters to the plaintiff of 25 October 2017 and 7 February 2018) until the determination of this proceeding.

Evidence

At trial, oral evidence was given by the plaintiff, Mr John Cahir (a team leader in the legal team of the Customer Services and Debt Management Branch of SRO to whom the plaintiff reports) and Mr Di Federico. Each also deposed to affidavits which became part of the admissible evidence, either wholly or in part.[2]
[2]The relevant affidavits are contained in Exhibit A – Court Book.

The plaintiff deposed that he did not have the information necessary to respond to the proposed disciplinary outcome.[3] Whilst this belief may be genuinely held, ultimately it relates to a legal question that is the subject of this determination, and I do not accept the plaintiff’s assertion.
[3]Affidavit of Tobias John Tucker, affirmed on 19 October 2018, [30] (‘the third Tucker affidavit’).

There were some differences in the recollection of facts between the plaintiff on the one hand, and Mr Cahir and Mr Di Federico on the other. However they were insignificant to the case as it unfolded, and I accept that each witness attempted to honestly recall matters during cross-examination. For instance, in respect of access to electronic data during a meeting regarding the second investigation, the plaintiff and Mr Cahir had different recollections on the length of delay before obtaining electronic access. The plaintiff said his recollection was supported by his notes and records of phone calls.[4] Ultimately, the length of delay was immaterial as the plaintiff agreed that the time was spent searching other records,[5] and it was common ground that he was given a further opportunity to view the records again and did not take it up.[6]
[4]Ibid [56]; see also exhibit TJT-06 to the third Tucker affidavit.
[5]Transcript of Proceedings, Tucker v State of Victoria (Supreme Court of Victoria, S CI 2017 05032, Ierodiaconou AsJ, 4–6 February 2019 and 7 May 2019) 93 (‘Transcript’).
[6]Ibid 95.

There was also some inconsistency in the affidavit evidence as between that of plaintiff on the one hand, and that of Mr Di Federico and Mr Cahir on the other.[7] It was unnecessary to resolve this because the plaintiff abandoned a number of his claims after oral evidence closed, including the claim that the defendants breached their obligations towards him by failing to provide him access to his work records, emails and other information to enable him to provide a meaningful response to the Second Allegations.[8] He also abandoned claims that he had not been provided with full particulars of the First Allegations,[9] that Mr Di Federico’s appointment as investigator breached the defendants’ obligations to appoint an investigator with no prior personal involvement in the matter,[10] and that by communicating directly with the plaintiff and not his lawyers, the defendants failed to ensure he had representation of his choosing during the investigation.[11]
[7]See, eg, the third Tucker affidavit (n 3) [41] cf the affidavit of Don Di Frederico, sworn on 5 December 2018, [5]–[9].
[8]Second Further Amended Statement of Claim, filed on 31 January 2019, [37(b)] (‘2FASOC').
[9]Ibid [34(d)].
[10]Ibid [35].
[11]Ibid [36].

Most facts concerning the issues agitated during trial were agreed. The parties helpfully provided a statement of joint statement of agreed facts.[12]
[12]Joint Statement of Agreed Facts, filed on 21 September 2018 (‘SAF’).

Moving now to the issues in dispute. During the trial, the parties provided a useful outline of issues in dispute, and then another outline after the fourth day of trial.

Is cl 21 of the VPSEA incorporated into the plaintiff’s employment contract by reference?

The covering letter states:

Your conditions of employment will be in accordance with the Victorian Public Service Workplace Determination 2012 (“The Determination”) or any subsequent determination (which applies of its own force and is not incorporated into this contract). This contract of employment may be terminated by either party in line with the determination.

The acceptance document states:

8. Termination Clause
This contract of employment may be terminated at any time by either party in line with the Victorian Public Services Workplace Determination 2012.

The Victorian Public Service Workplace Determination 2012 (‘VPSWD’) expired on 31 December 2015 and was replaced by the VPSEA which commenced operation on 18 May 2016 pursuant to s 278 of the FWA.[13]
[13]Being seven days after it was approved by the Fair Work Commission: Victorian Public Service Enterprise Agreement 2016, cl 3.1 (‘VPSEA’).

Clause 21 of the VPSEA establishes procedures for managing employee misconduct and associated disciplinary outcomes.

The plaintiff’s submissions

The plaintiff says that cl 21 of the VPSEA is incorporated by reference into the contract of employment. His key submissions on this issue follow.

Firstly, at trial, the plaintiff said that the acceptance document, but not the covering letter, contains written terms of the contract of employment.

Secondly, the acceptance document is contractual in nature. Its terms are not merely aspirational but create substantive rights for the plaintiff. The contract of employment would be incomplete without incorporating the VPSEA, as there is no other right to resign or dismiss conferred by the acceptance document. Clause 8 of the acceptance document is a bridging term between the written contract of employment (namely, the acceptance document) and the VPSWD (and it successor, cl 21 of the VPSEA). The bridging term only concerns termination.

It is only necessary to incorporate parts of the VPSEA to give effect to cl 8 of the acceptance document, namely those that deal with termination. Other matters, such as hours of work, salary, and leave, are not incorporated by reference. Another way of considering the issue is to ask what clauses in the VPSEA need to be complied with for the termination to be in line with the VSPEA. Clause 21 deals with the process of termination of employment and should be incorporated. It is unnecessary to consider whether other clauses of the VPSEA need to be incorporated.

Thirdly, the language used in the acceptance document — ‘in line with’ — is synonymous with the phrase ‘in accordance with’ which has been held to incorporate external source documents by reference. Moreover, ‘in line with’ is mandatory language and more compulsive than other phrases that have been held to incorporate external source documents by reference, such as statements that policies were ‘to be observed’ or ‘abided by’. The term ‘in line with’ is repeated in both the acceptance document and the covering letter.

Fourthly, cl 21 of the VPSEA is capable of being a contractual term. It is in mandatory, clear and certain language that is not merely permissive or aspirational.

Fifthly, the acceptance document does not expressly exclude the contractual force of the VPSWD. This is significant as, by contrast, SRO policies and procedures are expressly excluded from incorporation into the contract in cl 10 of the acceptance letter. The acceptance document may also be compared with the covering letter which contains an express exclusion. The usual conclusion in circumstances where the content of an external source document (such as the VPSWD) is outside the control of the parties, and a bridging term does not expressly address the issue, is that the contractual entitlements alter with the contents of the external source document.

Sixthly, even if the covering letter forms part of the terms and conditions of the contract of employment, it does not exclude the VPSWD from being incorporated. The plaintiff did not sign the covering letter and was never asked to consent to it.

In addition, any words excluding or limiting the contractual incorporation of the policy should be construed strictly and for the benefit of the party who gains from its exclusion or limitation. Accordingly, the words ‘which applies of its own force and is not incorporated into the contract’ should be construed only in reference to the words ‘a subsequent determination’. The VPSEA is not a determination, and hence the former words have no application.

On the other hand, the plaintiff says that the VPSEA is incorporated by reference because the parties knew that industrial instruments are replaced periodically and would not have intended to set the employment conditions in stone. Moreover, this is explicitly contemplated by the reference to ‘any subsequent determination’ in the covering letter.

The defendants’ submissions

The defendants say that cl 21 of the VPSEA is not incorporated by reference into the contract of employment. Their key submissions on this issue follow.

Firstly, the written terms of the contract of employment include both the covering letter and acceptance document. Both parties pleaded this. It was in the agreed facts. The plaintiff has now changed his position.

The exercise of construing the contract is a search for the objective intentions of the parties and is to be taken in context. The covering letter is an important element of that. It and the acceptance document constitute an offer and acceptance.

Secondly, the VPSWD is expressly excluded from incorporation in the contract of employment in the covering letter. It explicitly states that the VPSWD ‘applies of its own force and is not incorporated into this contract’. These words apply to both the first and second sentence of the paragraph in the covering letter. The second sentence is: ‘This contract of employment may be terminated by either party in line with the Determination.’ The plaintiff’s suggestion that it is of significance that the same parenthetical qualification is not stated in the second sentence, and that a distinction should be drawn, is refuted as being unduly technical and inapt for a document of this kind, being a contract of employment. The sentences are to be read together. The first qualifies the second. The second is not strictly necessary but is included because termination is an important matter.

Further, the suggestion by the plaintiff that the words in the first sentence, namely ‘which applies of its own force and is not incorporated into this contract’, should be read so as to limit them to the VPSWD is inconsistent with both parties’ wider reading of the VPSWD in both the second sentence, and cl 8 of the acceptance document, to include successor industrial instruments.

Thirdly, and following directly the point above, the VPSWD applies of its own force and is not incorporated into the contract. The intention of the parties was that the statutory framework relating to the instrument will apply through workplace legislation — not incorporation. The intention was that conditions of employment be in accordance with the industrial instrument (the VPSWD or any subsequent determination) and the applicable industrial law regime governing it. This includes conditions leading to termination of employment. That is the mechanism by which the contract is brought to an end. There is no ‘gap’ in the contract regarding termination as the industrial instrument and industrial law regime apply. Given that, it is unnecessary that the contract itself incorporate terms regarding termination.

There is no automatic incorporation of industrial instruments into a contract of employment;[14] it instead turns on the circumstances of the case and the terms of the contract. The parties must clearly express an intention to incorporate a term. Moreover, certain language, such as that terms ‘are as prescribed’ in an industrial instrument, or other mere references to an industrial instrument in a contract, have been held to be insufficient to create contractual rights. Accordingly, the colloquial term ‘in line with’ is insufficient to create contractual rights.
[14]Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 421, 452–3; ACTEW Corporation v Pangallo [2002] FCAFC 325, [28].

Fourthly, cl 8 of the acceptance document and the covering letter should be read together.

Analysis

The VPSEA applies to the plaintiff’s employment with the State. It is a successor instrument to the VPSWD. So much is not in dispute between the parties.

Whether cl 21 of the VPSEA is incorporated by reference into the contract of employment raises the preliminary issue of whether the covering letter contains written terms of the contract of employment.

Prior to trial it was common ground between the parties that both the covering letter and acceptance document were part of the contract of employment. This is evident from their pleadings and the agreed facts.[15] That really should be the end of the matter. Parties are bound by their pleadings.
[15]2FASOC (n 8) [5(a)].

Campbell J in Canon Finance Australia Limited v Reliance Medical Practice Pty Ltd (No 3) (‘Canon’) stated:[16]

The law on this topic is quite clear. The remedies sought by a party and the basis on which those remedies are sought must be found in the pleadings. It is sufficient to refer to Dare v Pulham(1982) 148 CLR 658; [1982] HCA 70 (at 664) in that regard, although doubtless references to authority could be greatly multiplied. A party is bound by its pleadings unless the parties have permitted the evidence at trial to run beyond the confines of the pleadings, so that they have both or all chosen to fight the case on a ground different from the ground identified by the pleadings. Even when that occurs, it is necessary that the pleadings should be amended so that they accord with the case actually fought between or amongst the active parties to the litigation: Leotta v Public Transport Commission of NSW (1976) 50 ALJR 666 at 668.

[16][2018] NSWSC 1378, [21] (‘Canon’).

Barwick CJ in Leotta v Public Transport Commission (NSW) stated:[17]

It is, of course, proper to allow a plaintiff to amend pleadings during the course of a trial provided the interest of the defendant can be adequately safeguarded by adjournment and otherwise. That is one thing and a matter of common enough experience. But, to my mind, it is quite another and a very different thing to allow the plaintiff, after the evidence is closed, evidence which has been taken with a view to the cause of action set up in the pleadings, to then formulate a new claim which has not been the subject of examination in the evidence.

[17](1976) 50 ALJR 666, 668.

Harper J in Downer Connect Pty Limited v McConnell Dowell Constructors (Aust) Pty Ltd stated:[18]

Litigation is sometimes conducted to judgment with barely a glance at the pleadings. It remains generally true that good pleadings are an important, and often crucial, element in the civil justice system. When well-drawn, as they always should be, they form the touchstone by which the issues are identified and the relevance of the evidence assessed.
Consistently with this, one of their primary purposes is to reveal to the opposite party how the party pleading puts its case. On reading a well-drawn statement of claim, the defendant to whom it is directed will be able to say: “These are the material facts that will be the subject of the plaintiff’s evidence. They tell a coherent, comprehensible story; and, to the extent that any additional evidence is to be called that might cause me to be taken by surprise, here is that evidence outlined in the particulars.”
A complaint that the pleadings do not achieve this end is often met with the response that the opposite party knows very well, from documents and perhaps other sources, what the case against it is. This is no answer at all, at least unless the relevant documents are properly incorporated into the pleading. It is, as a general proposition, true to say that each pleading should be sufficient in itself. And although an element in an adversarial process, pleadings are themselves intended to be the opposite of adversarial, at least to the extent that they must, if they are to perform one of their proper functions, inform the opposite party of the case that party will have to meet at trial.

[18][2008] VSC 77, [1]–[3].

The plaintiff’s change of position at trial is contrary to his pleadings and impermissible. He now says that the covering letter was not part of his contract of employment. For completeness I will now address it.

I find the written terms of the contract of employment are contained in both the covering letter and the acceptance document for the following reasons.

In Toll FGCT Pty Ltd v Alphapharm Pty Ltd the High Court said:[19]

This Court ... has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References as to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That normally requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.

[19](2004) 219 CLR 165, 179 [40].

Turning first to the language of the covering letter and acceptance document.

The covering letter says ‘This contract of employment…’ and asks that the plaintiff retain a copy of the covering letter for his records. It also refers to the ‘enclosed Acceptance of Employment Terms’. Clearly the covering letter and the acceptance document are to be read together.

The subject of the covering letter is ‘offer of employment – ongoing contract’ and the acceptance document is titled ‘Acceptance of Employment Terms’.

There is a signature clause in the acceptance document. It provides for the plaintiff to ‘accept the offer of Ongoing Employment and agree to abide by the employment terms outlined’. Clause 2 of the acceptance document refers to Ongoing Employment and states ‘full time from: 4 October 2013’. The signature clause is consistent with both the covering letter — with its subject ‘Offer of Employment – Ongoing Contract’ — and the acceptance document.

A reasonable person in the position of the plaintiff would understand that the covering letter and acceptance document constitute an offer and acceptance of ongoing employment. The documents are to be read together and contain written terms of the contract of employment.

Given the above, I reject the plaintiff’s submission that he did not agree to the terms in the covering letter because he only signed the acceptance document.

I also reject the plaintiff’s submission that it is significant that cl 8 of the acceptance document does not expressly exclude incorporation of the VPSWD, whereas cl 10 does expressly exclude incorporation of policies and procedures. Clause 8 is to be read with the covering letter, and that expressly excludes the VPSWD.

For convenience, I will refer below to the covering letter and acceptance document together as ‘the employment contract’.

Now turning to the main issue of whether the VPSEA is incorporated into the employment contract by reference.

The issue of whether an industrial instrument is incorporated into a particular contract of employment arises regularly. The parties referred to a number of authorities in support of their contentions. Neither of them identified any authority precisely on point. In particular, the cases identified did not concern contracts of employment which expressly stated that the industrial agreement was not incorporated. For instance, the plaintiff relied on Gramotnev v Queensland University of Technology (‘Gramotnev’).[20] In contrast with the facts here, the letter of offer in Gramotnev stated ‘Your terms and conditions of employment are as contained in the relevant industrial awards’.[21]
[20][2015] QCA 127.
[21]Ibid [12].

I reject the plaintiff’s submission that the words ‘which applies of its own force and is not incorporated into the contract’ should be construed only in reference to the words ‘a subsequent determination’. Those words must be read in the context of the type of contract this is, namely an employment one. They should not be read in an overly technical or limited manner. A reasonable person would understand them to mean what they say, which is that the VPSWD is not incorporated.

It is common ground between the parties that ‘a subsequent determination’ includes a reference to the subsequent industrial instrument, being the VPSEA, as the phrase should not be read literally. Having adopted that interpretation, it is logical to apply it to the whole of the sentence, not just part of it. As the defendants submit, the plaintiff cannot have it both ways.

I reject the plaintiff’s submission that the contract is incomplete without incorporation of cl 21 because there is no way to dismiss an employee or terminate the contract. The contract was made in the context of industrial legislation which provides for an industrial instrument. There is a separate mechanism for termination of the contract in the industrial instrument applicable to the plaintiff’s employment.

Further, even accepting the plaintiff’s contention that the ‘termination clause’ of the VPSEA is to be incorporated, cl 21 is not actually the termination clause. The termination clause is cl 16 of the VPSEA. Clause 21 is aptly titled ‘Management of Misconduct’. The purposes stated in cl 21.1 do not refer to termination of employment. Rather, they are concerned with management of misconduct, including: a) establishing procedures for managing the misconduct or alleged misconduct of an employee; and b) providing for an employee’s alleged misconduct to be investigated and addressed expeditiously and with minimal disruption to the workplace. There is only a passing reference to termination of employment as a potential outcome of the disciplinary process: see cl 21.12(b).

On the other hand, cl 16 is titled ‘Termination of Employment’. It sets out, consistently with the plaintiff’s contract of employment, how either party may terminate the contract of employment. It addresses, amongst other things, the notice period each party is required to give to terminate the employment. This includes, in the case of dismissal for serious misconduct, no notice: see cl 16.2(e).

I reject the plaintiff’s submission that the words in his contract expressly stating the industrial instrument is not incorporated should be limited. I reject his submission that paramountcy should be given to cl 8 of the acceptance document. It refers to termination of employment being ‘in line with’ the VPSWD. Such submissions are inconsistent with the express words in the employment contract saying that the VPSWD is not incorporated. A similar analysis applies to the words in the covering letter that say the plaintiff’s employment is ‘in accordance with’ the VPSWD.

A reasonable person in the position of the plaintiff would, on reading the employment contract, conclude that the VPSWD was not incorporated into the contract.

Turning away now from the plaintiff’s contractual claim, and moving to consideration of his claim under the PAA.

Does the obligation imposed on a public service body Head by s 8 of the PAA extend beyond an obligation to establish processes that meet the description in that section and impose an obligation that the processes so established must be complied with in respect of a particular employee?

Section 8(b) of the PAA states:

8 Public sector employment principles
Public sector body Heads must establish employment processes that will ensure that –
…
(b) public sector employees are treated fairly and reasonably

SRO employment policies relevant to the above obligation are set out in the SRO’s Managing Misconduct Policy (‘Misconduct Policy’).

The Misconduct Policy states:

VPS Enterprise Agreement
Clause 21 of the VPS Enterprise Agreement sets out the procedures for managing misconduct or alleged misconduct.

Section 20 of the PAA states:

(1)A public service body Head, on behalf of the Crown, has all the rights, powers, authorities and duties of an employer in respect of the public service body and employees in it.
(3)A public service body Head, in exercising a right, power, authority or duty referred to in this section, must do so in conformity with—
…
(c)the public sector employment principles;
…

The plaintiff’s submissions

The plaintiff says that read together ss 8(b) and 20(3)(c) of the PAA require the public service body Head to exercise power and authority consistently with the public sector employment principles and this obliges the defendants to comply with the Misconduct Policy. His submissions follow.

First, s 8(b) of the PAA requires employers to not only establish employment processes that are fair and reasonable, but also adhere to those processes. This is evident from the mandatory language used: ‘Public sector body Heads must establish employment processes that will ensure…’.[22] The words ’that will ensure’ have work to do.
[22](emphasis added).

Section 8 contrasts with other sections of the PAA such as s 7, which concerns public sector values and uses aspirational language.[23] In contradistinction to s 8, s 7(4) specifically excludes civil causes of action under s 7(1) and expresses not to create any legal rights.
[23]Transcript (n 5) 243.

Second, s 8(b) of the PAA imposes an obligation to comply with cl 21 of the VPSEA. This is because a policy established by the Commissioner pursuant to s 8(b) refers to cl 21 of the VPSEA. Specifically, as discussed above, the Misconduct Policy refers to cl 21 of the VPSEA. Accordingly, a breach of cl 21 of the VPSEA is a breach of the Misconduct Policy and of s 8(b) of the PAA.

The plaintiff refers to correspondence to him from the SRO. It indicates that he was required to comply with the Misconduct Policy (and therefore cl 21 of the VPSEA to which it refers). He says that fairness requires the defendants also comply.

The defendants’ submissions

The defendants say the obligation relevant to the proceeding arises from the interaction of s 8 with s 20(3)(c) of the PAA. Section 20(3)(c) gives rise to a requirement that the second defendant, as delegate of the relevant public service body Head, exercise the rights, powers, authorities and duties of an employer in respect of the employment of the plaintiff and in accordance with the public sector employment principles in the sub-paragraphs of s 8. This includes the principle that public sector employees are treated fairly and reasonably. There is an obligation to conduct any disciplinary process in conformity with that principle and the obligation has been satisfied.

The defendants agree that the Misconduct Policy is a policy established pursuant to s 8 of the PAA. They also agree the policy requires that disciplinary processes be conducted in accordance with cl 21 of the VPSEA.

However, they say concepts of fairness and reasonableness in s 8 of the PAA should not be confined to the precise prescriptions of cl 21 of the VPSEA, but understood as a broader and more flexible concept to treat the plaintiff fairly and reasonably.[24]
[24]Ibid 292.

The defendants reject the plaintiff’s assertion that the PAA gives rise to a statutory duty requiring them to adhere to cl 21 of the VPSEA for the following reasons.

Whilst s 8 requires the establishment of processes to ensure the objectives identified in the sub-paragraphs of s 8, it does not extend to an obligation requiring the public sector body Head to adhere to the processes established under s 8. There is a clear difference between an obligation to establish a process which meets a particular description, and an obligation to adhere to the process so established.

Although the heading of s 8 is ‘public sector employment principles’, the principles are confined to the objectives in the sub-paragraphs of s 8, not the establishment of the processes themselves. This is consistent with the definition of ‘public sector principles’ in s 4 of the PAA. It refers to ‘principles’ in plural. There are six objectives listed in the sub-paragraphs of s 8. They are the principles rather than the singular objective of establishing the employment processes.

The plaintiff’s construction would require the Court to read additional words into s 8(b) in circumstances where the ordinary and natural meaning of the provision is unambiguous. It would be contrary to well-established principles of statutory construction. The duty in s 8 is only to establish processes (that answer the description in the sub-paragraphs of s 8), not to discharge or ensure those processes. The alternative would require reading into the words ‘that will ensure’ a direct obligation to comply with the processes so established.

Here, s 8 has no application as the plaintiff makes no complaint about the actual processes established pursuant to the obligation in s 8.

Moreover, the plaintiff’s pleadings do not allege that a breach of cl 21 of the VPSEA would be a breach of s 8 and this line of argument was only expounded at trial.

Analysis

Does the obligation imposed on a public sector body Head by s 8 extend beyond an obligation to establish processes that meet the description in that section, and impose an obligation that the processes so established must be complied with in respect of an employee? The answer is no for the following reasons.

The process of statutory interpretation begins with the text of the statute, as this is the surest guide to legislative intention. The meaning of the text may require contextual considerations, including the general purpose and policy of a provision, in particular the mischief it seeks to remedy.[25]
[25]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 47 [47].

Ordinarily, but not always, words are given their natural and ordinary meaning:

the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[26]

[26]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [78].

A construction that promotes the object or purpose underlying an Act is preferable to one that does not.[27] Headings to sections within an Act form part of that Act.[28]
[27]Interpretation of Legislation Act 1984 s 35.
[28]Ibid s 36(2A).

Turning now to the text of the statute.

8        Public sector employment principles
Public sector body Heads must establish employment processes that will ensure that—
(a)       employment decisions are based on merit; and
(b)       public sector employees are treated fairly and reasonably; and
(c)       equal employment opportunity is provided; and
(ca)     public sector employees are treated fairly and reasonably; and
(d)public sector employees have a reasonable avenue of redress against unfair or unreasonable treatment; and
(e)in the case of public service bodies, the development of a career public service is fostered.

It is evident from s 8 that the obligations are placed on public sector body Heads, not public service body Heads. However, a public sector body Head in the public service means a public service body Head. The definitions of each are contained in s 4 of the PAA.

“public sector body Head” means—
(a)       in relation to a public service body, the public service body Head;
(b)       in relation to a public entity, the public entity Head;
(c)       in relation to a special body, the special body Head;
“public service body Head” means—
(a)in relation to a Department—the Head of that Department; or
(b)in relation to an Administrative Office—the Head of that Administrative Office; or
(c)in relation to the State Services Authority—the chief executive officer of that Authority;

Strictly then, the question of whether s 8 imposes obligations on public service body Heads must be answered no. The obligations are on public sector body Heads. However, further analysis is required because public sector body Heads include public service body Heads and, as discussed further below, there is an intersection with s 20(3) which places obligations on public service body Heads.

Section 8 of the PAA requires public sector body Heads ‘establish employment processes that will ensure’ the principles in sub-paragraphs (a)-(e).

Reading s 8 in the context of the PAA, it clearly serves at least two purposes. The first is definitional. Section 4 of the PAA says that ‘public sector employment principles’ are defined in s 8. Consistently with that, s 8 then sets out a number of principles in sub-paragraphs. The title of s 8 is ‘public sector employment principles’.

Pausing there, I accept the submission of the defendants that the employment principles are defined in the sub-paragraphs to s 8 rather than the whole of s 8. Both the definition of ‘public sector principles’ and the heading to s 8 refer to ‘principles’ rather than the singular ‘principle’. This is consistent with the Explanatory Memorandum which states:

Clause 8 requires public sector body Heads to establish employment processes that comply with the public sector employment principles stated in that clause.[29]

[29]Explanatory Memorandum, Public Administration Bill 2004, 6.

The second purpose, evident from the text of s 8, is to oblige public sector body Heads to establish processes that ensure the public sector employment principles.

Is there a third purpose of s 8, namely to impose an obligation on public sector body Heads to comply with the processes established under it?[30] No, however if the public sector body Head does not comply with the processes so established, the question may arise as to whether the processes have been properly established in accordance with s 8. I will outline the reasons why.
[30]This obligation is pleaded in para 9 of the 2FASOC in respect of the obligation to treat the plaintiff fairly and reasonably. It is denied by the defendants in para 9(b) of the Amended Defence to the Second Further Amended Statement of Claim, filed on 1 February 2019 (‘Amended Defence to the 2FASOC’).

Pursuant to s 8, the public sector body Head must ‘establish’ the employment processes and ’ensure’ that those ‘processes’ meet the outcomes set out in the sub-paragraphs to s 8. The relevant Macquarie Dictionary[31] definitions of those terms follow.

‘Ensure’ means ‘to make sure or certain to come, occur, etc.: measures to ensure the success of an undertaking’.
‘Process’ means ‘a systematic series of actions directed to some end’.
‘Establish’ means ‘to set up on a firm or permanent basis’.

[31]Macquarie Dictionary (online at 6 June 2019).

The above definitions suggest that to establish employment processes to ensure particular outcomes means more than to simply bring into existence policies and documentation on such processes.

Processes are systematic actions towards a defined end. This is distinct from the documentation of such processes in a policy or procedure. In that sense, while procedural documentation may assist in ensuring the principles are upheld, the obligation under s 8 is directed to processes, and so is ultimately concerned with what is actually occurring in practice. This distinction is supported by the word ensure, meaning to make certain to occur.

To establish the employment principles imports a notion of permanency, or at least of a firm basis. This suggests the obligation is ongoing, which may require implementation, monitoring, evaluation and enforcement of employment processes.

Employment processes which ensure the employment principles, make realisation of the principles sure or certain to occur. This essentially requires the processes be effective in achieving the employment principles. For processes to be effective they must be implemented and applied in the workplace. This understanding is congruent with the wider context of the PAA, including ss 1(a), 3, 7, 38, 40(1)(c)–(d), 63(1)(c), 64 and 65.

Section 1(a) provides the PAA’s purpose includes to ‘provide a framework for good governance’. Section 3 lists the objects of the PAA, including:

…
(c)to establish values and principles to guide conduct and performance within the public sector;
(d)to ensure that employment decisions in the public sector are based on merit;
(e)to promote the highest standards of governance in the public sector;
(f)to promote the highest standards of integrity and conduct for persons employed within the public sector;

…

Employment processes that are uncertain or not complied with are antithetical to the PAA’s objects of high standards of integrity and governance in the establishment of the public sector values and employment principles.

Section 7 (found together with s 8 in pt 2 ‘Public Sector Values and Employment Principles’ of the PAA) supports the construction of s 8 as imposing an actionable obligation. The heading to s 7 is ‘Public sector values’ and s 7(1) sets out the public sector values in mandatory language using the word ‘should’.[32] However, as the plaintiff submits, s 7(4) explicitly provides that s 7(1) does not create a legal right or give rise to a civil cause of action, nor affect the rights or liabilities of public officials or public sector bodies.[33] The absence of an equivalent to s 7(4) in s 8 is supportive of its construction as a mandatory and actionable obligation.
[32]Section 45(2) of the Interpretation of Legislation Act 1984 provides that where the word ‘shall’ is used, the power must be exercised.
[33]However, s 7(5) does provide that s 7(4) does not affect that status or enforcement of any instrument created under the PAA based on public sector values.

Turning to the relevant provisions on the Victorian Public Sector Commission (‘the Commission’). These provide for the Commission to actively monitor and review, on an ongoing basis, compliance with public sector values and employment principles. For example, one of the Commission’s objectives in s 38 of the PAA is to maintain public sector integrity. To give effect to the objectives, subparas (c) and (d) of s 40(1) provide for the Commission to monitor and report on compliance with public sector values and employment principles, and to review employment related actions. Section 63(1) empowers the Commission to make recommendations to vary processes in order to comply with those values and principles. Employees have a right to review for action taken in relation to their employment, and recommendations may be made by the party conducting the review.[34]
[34]PAA ss 64, 65.

The above textual analysis and statutory context, including the Commission’s oversight and advisory role, support the construction of s 8 as requiring public sector body Heads implement ongoing and effective processes to make certain the realisation of the employment principles.

However, s 8 does not expressly oblige public sector body Heads to comply with the employment processes established under it in respect of particular employees. There are no words that impose such an obligation, nor is the literal meaning of s 8 irrational.[35] Nevertheless, if a public sector body Head does not comply with a process they have established pursuant to s 8, the question arises whether that process was properly established to ensure the employment principles.[36] Accordingly, a breach of s 8 would derive from a failure to establish such processes.
[35]Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297, 321 (Mason and Wilson JJ).
[36]See also the interlocutory injunction decision of Quinn v Overland [2010] FCA 799, [55] (‘Quinn’). Bromberg J held it was seriously arguable that s 8 imposed an obligation on public sector Heads beyond mere establishment of processes.

Turning now to s 20(3) of the PAA. Section 20(3) is consistent with the interpretation that s 8 requires processes be properly established. It imposes an obligation on public service body Heads to act ‘in conformity with’ the public sector employment principles enumerated in s 8. The obligations in ss 8 and 20(3) are complementary rather than equivalent. I adopt the reasoning of Bromberg J in Quinn v Overland (‘Quinn’):

[The employee] also contended that the requirement upon the [employer] to observe [the policy] is a requirement imposed by s 20(3)(c). That contention operates on the basis that an employment process established under s 8 is a public sector employment principle within the meaning of s 20(3)(c). The potential difficulty with that contention is that s 4 defines public sector employment principles as “the principles set out in s 8” and not the processes established pursuant to s 8.[37]

[37]Ibid [56] (emphasis added).

In conclusion, I reject the plaintiff’s submission that ss 8(b) and 20(3)(c) read together require the defendants to comply with the Misconduct Policy, established under s 8(b). As discussed above, s 8(b) imposes no such requirement, although a failure to comply may suggest a process has not been properly established. There was no such allegation made in the plaintiff’s pleadings — he did not plead a stand-alone breach of s 8 or seek any consequential relief. As discussed by Bromberg J above, the words of s 20(3) do not support a construction that creates an obligation to comply with a policy established pursuant to s 8.

For clarity, the question of whether or not there is an independent breach of s 20(3) of the PAA is a separate one. Again, in the words of Bromberg J in Quinn:

If s 20(3)(c) is identifying each of sub paragraphs (a)-(e) of s 8 as the public sector employment principles, then independently of any requirement under s 8, s 20(3) would require the [employer’s] power in respect of [the employee] to be exercised in conformity with each of those subparagraphs, including para (b) which requires that an employee be treated fairly and reasonably in the light of the other requirements imposed by s 20(3). I accept that the existence of such a duty is seriously arguable.[38]

[38]Ibid [57] (emphasis added).

Here, it is common ground between the parties that s 20(3) does impose an independent obligation to comply with the employment principles in s 8. The application of s 20(3) will now be discussed.

Is a breach of cl 21 of the VPSEA a breach of s 20(3) of the PAA?

The plaintiff says that the Misconduct Policy established under s 8 provides that the disciplinary processes must be conducted in accordance with VPSEA cl 21.[39] He alleges[40] that the defendants breached s 20(3)(c) of the PAA by failing to ensure that he is treated fairly and reasonably, per s 8(b), arising from a failure to comply with cl 21 of the VPSEA.
[39]2FASOC (n 8) [10].
[40]Ibid [9], [38], [39].

I reject the plaintiff’s submission that a breach of the Misconduct Policy established under s 8 of the PAA is a breach of s 20(3)(c). I do so for the reasons referred to by Bromberg J in Quinn above. Section 20(3) is directed to the public sector employment principles, not particular processes established to ensure those principles. It does not follow that a breach of the Misconduct Policy or cl 21 of the VPSEA is a breach of s 20(3).

The question in respect of s 20(3)(c) is whether or not the public sector employment principles have been breached by the public service body Head.

By para 3(a) of the 2FASOC, the plaintiff alleged that the second defendant exercises powers in respect of the plaintiff’s employment as a public service body Head. The defendants admitted that the second defendant exercised such powers (by way of a delegation from the relevant Departmental Secretary), but deny the second defendant is the public service body Head.[41] This was not in issue at the trial because the defendants say it will be either of them that exercise the power.[42]
[41]They say the Secretary to the Department of Treasury and Finance is the public service body Head: Amended Defence to the 2FASOC (n 30) [3(b)].
[42]Transcript (n 5) 184.

Accordingly, the parties agree that s 20(3) requires the second defendant to exercise all the rights, powers, authorities and duties of an employer in respect of the employment of the plaintiff, and to do so in conformity with the public sector employment principles in s 8 of the PAA, including the principle that public sector employees are treated fairly and reasonably.[43]
[43]2FASOC (n 8) [8] and the Amended Defence to the 2FASOC (n 30) [8(a)].

Turning now to the substantive issues and whether s 20(3) was breached. I will also consider whether or not cl 21 of the VPSEA, as incorporated into the Misconduct Policy, was breached in the event the analysis above is incorrect.

Did the failure to provide an unredacted copy of the First Report and/or its annexures breach s 20(3) of the PAA or cl 21 of the VPSEA?

I now address the plaintiff’s allegations that s 20(3) of the PAA and/or cl 21 of the VPSEA were breached because the plaintiff was not provided with an unredacted copy of the First Report and/or its annexures.

The plaintiff’s submissions

The plaintiff’s key submissions follow.

Firstly, he should be given an opportunity to deal with adverse information that is credible, relevant and significant. He was entitled to particulars of the First Allegations: the names of the persons who had made the complaints, copies of the written complaints and the time, date and place of the alleged acts. The redacted information should have been provided to him both during the investigation and by way of the First Report. He was entitled to be provided with sufficient information to allow a reasonable basis to respond to the First Report. The failure to provide an unredacted copy of it left him without key information. Therefore he could not properly respond to the allegations and findings made against him.

Secondly, the information ultimately redacted in the First Report was credible, relevant and significant information because the investigator relied upon it to reach her conclusions.[44] That is evident because:

(a) there is redacted information under the heading ‘Analysis of Evidence’ in the First Report; and

(b) the First Report includes a finding that evidence from certain witnesses is exaggerated and embellished. Without context, it is not apparent why.

[44]Transcript (n 5) 259.

Thirdly, cl 21 of the VPSEA contains two exceptions to confidentiality, neither of which are applicable here:

(a) action taken by the employer is ‘subject to applicable Victorian and federal legislation’;[45] and

(b) ‘[r]elevant information will only be withheld where it is necessary to withhold that information in order to protect the personal privacy of any other person, consistent with Federal or State legislation’.[46]

[45]VPSEA (n 13) cl 20.2(a).

[46]Ibid cl 21.8(b).

Fourthly, procedural fairness is a practical remedy. The loss of opportunity to respond to the redacted information is a practical matter. It is ultimately relevant because of the disciplinary outcome.

The defendants’ submissions

The key submissions of the defendants follow.

Firstly, the plaintiff failed to plead an allegation of breach relating to the procedural fairness requirements of cl 21.6 of the VPSEA and those breaches were asserted for the first time in the plaintiff’s outline of submissions. Accordingly, he should not be permitted to rely on them.

Secondly, each decision-maker must consider the circumstance of the case and raise any adverse conflicting evidence. The person being investigated must be given a reasonable opportunity to address issues relevant to their interests. The provision of the redacted First Report does not contravene those principles.

The plaintiff was provided with particulars of the allegations giving rise to the First Allegations on 9 June 2017, and further particulars were provided to him on 7 July 2017 and 25 August 2017. Collectively, these contained a detailed summary of each allegation, together with evidence that appeared to contradict the plaintiff’s evidence, and to which he was given an opportunity to respond. This information was complete — it was provided to the plaintiff after all of the witness interviews were conducted.

Thirdly, neither the VPSEA nor the PAA required the defendants to provide the plaintiff with a copy of the First Report, let alone an unredacted copy. Rather, they were obliged to provide him with the investigator’s findings, and sufficient information to allow him a reasonable basis to respond, and they did so on 25 October 2017. This distinction is highlighted in the Misconduct Policy, which requires the investigator to provide a written report to the Executive Director, People and Culture, ‘setting out the investigator’s findings, and summarising the evidence on which those findings are based’, but only requires that the employee be informed of findings. Moreover, although not obliged to do so, they also provided the plaintiff with a copy of the First Report that was redacted to protect the privacy of interviewees.

Fourthly, confidentiality is not limited to some type of statutory imperative. Each decision-maker must balance confidentiality issues. Further, cl 21.11(a) of the VPSEA only requires that ‘[t]he Employee will be provided with sufficient information to allow them a reasonable basis to respond’, and there is no obligation to provide ‘full particulars’.

Fifthly, the plaintiff knew who the witnesses were from the names that appeared in the contradictory evidence. He responded to these allegations. The investigator said, on page 13 of the First Report, that the allegations had not broadened and the contradictory evidence had been provided. At page 12, the First Report notes that the plaintiff was able to identify and address each alleged behaviour during interviews.

Sixthly, the investigator concluded that she would not rely upon the redacted information. An adverse conclusion was already reached on the unredacted material.

Seventh, the ‘Analysis of Evidence’ part of the First Report is clearly deliberative, as can be inferred by the heading. The redacted information is evaluative and did not need to be provided.

Eighth, the case, as narrowed, relates to an allegation of breach at the disciplinary stage, not the investigative stage, as para 34(d) of the 2FASOC was not pursued.

Ninth, unfairness must answer the description of practical injustice. Here, the plaintiff did not lose an opportunity to advance his case. The contradictory information had been provided to him prior to the First Report. He did not try to impeach the investigator’s description of the material as contradictory evidence. Nor did he attempt to subpoena material to try and impeach the First Report. The plaintiff has failed to establish that he did not have access to evidence used against him.

Evidence and analysis

The controversy here, as narrowed during trial, is whether or not the defendants failed to afford the plaintiff procedural fairness (or breached other alleged obligations), by failing to provide him with an unredacted copy of the First Report and its annexures containing witness statements.[47]
[47]The plaintiff withdrew the allegations made in 2FASOC [34(d)] (with a consequential amendment to para 34(g) during trial). See question 3 of the agreed Outline of Issues in Dispute, 6 February 2019. It reflects para 34 (a)-(c),(e), (f) and (g).

There was some dispute between the parties as to the applicable principles with each party citing various authorities. It is unnecessary to traverse them all here. I discern the relevant principles as follows.

Firstly, a person directly affected by the decision-making process should generally be ‘given the opportunity of ascertaining the relevant issues’ and ‘be informed of the nature and content of adverse material’.[48] That is a consequence of procedural fairness entailing a right to be heard.
[48]SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, 162 [32] (‘SZBEL’).

Secondly, the opportunity to be heard does not require the decision-maker to adopt an ‘open file’ providing access to every piece of evidence.[49] Nor does it require all the material to be given verbatim. Sometimes it is sufficient to provide ‘the gravamen or substance of the issue’ to the affected person.[50] Consequently, the premise that the person affected is entitled to all information except confidential information must be rejected. As Griffiths J stated in Coutts v Close, ‘[u]ltimately, the fundamental issue here is whether the applicant was given a reasonable opportunity to address issues relevant to his interests’.[51]
[49]Coutts v Close [2014] FCA 19, [114] (‘Coutts’).
[50]Ibid [118].
[51]Ibid [114].

Thirdly, ordinarily the adverse material to be disclosed is that which is ‘credible, relevant and significant to the decision to be made’.[52]

‘Credible, relevant and significant’ information must therefore be understood as referring to information that cannot be dismissed from further consideration by the decision‑maker before making the decision. And the decision‑maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made’.[53]

[52]Kioa v West (1985) 159 CLR 550 cited in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88, 95 [15] (‘VEAL’).

[53]VEAL (n 52) 96 [17].

It is generally unfair not to disclose credible, relevant and significant material to the person affected because they cannot then deal with the information.[54] Further, such material can create a real risk of prejudice, even if subconscious, in the decision-maker’s mind.[55]
[54]Ibid 95 [15].
[55]Ibid.

‘Credible, relevant and significant’ information is not determined by how the decision-maker characterises the information when expressing their reasons.[56]
[56]Ibid 96 [17].

Fourthly, the obligation to disclose adverse material does not extend to disclosure of ‘the decision-maker’s deliberative processes or proposed conclusions’.[57]
[57]Coutts (n 49) [117]; SZBEL (n 48) 161–2 [29].

Fifthly, confidentiality may provide an exception to the ordinary requirement to disclose adverse material.[58] Confidentiality may be prescribed by statute but is not limited by the authorities to statutory confidentiality.
[58]VEAL (n 52) 95 [15].

Sixthly, as Gleeson CJ stated in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (‘Lam’):[59]

Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

[59](2003) 214 CLR 1, 14 [37].

The following facts are agreed:

(a) on 9 June 2017 and 7 July 2017, the plaintiff received the full allegations against him in respect of the First Allegations, that is, without redactions;[60]
[60]SAF (n 12) exhibits SAF-5 and SAF-11.

(b) on 29 June 2017, the investigator sent an email to the plaintiff’s lawyers attaching a document titled ‘Investigations – A Guide for Participants’, which stated that the investigation was confidential and also that the investigator would not provide a copy of the investigation report to recipients, and it would be up to the employer as to whether a copy is provided to participants in the investigation;[61]
[61]Ibid exhibit SAF-8.

(c) the plaintiff provided a written statement to the investigator dated 1 August 2017 in response to the allegations[62] and was also interviewed by the investigator;
[62]Ibid exhibit SAF-16.

(d) on 25 August 2017, the investigator emailed the plaintiff and his solicitor a document titled ‘Contradictory evidence for comment by Toby Tucker’.[63] The document was wholly unredacted.[64] Witness names on this document were unredacted and therefore evident;
[63]Ibid exhibit SAF-20.
[64]Agreed fact - see Transcript (n 5) 266.

(e) on 29 August 2017, the investigator emailed the plaintiff and his solicitor a document titled ‘Additional contradictory evidence for comment by Toby Tucker’.[65] The document was wholly unredacted.[66] Witness names on this document were unredacted and therefore evident;
[65]SAF (n 12) exhibit SAF-21.
[66]Agreed fact - see Transcript (n 5) 266.

(f) the plaintiff provided a witness statement dated 4 September 2017 in response to the documents above;[67]
[67]SAF (n 12) exhibit SAF-24.

(g) the plaintiff received investigations findings, in the form of Attachment 1 ‘Summary of the Workplace Investigation Report prepared by Lisa Klug of Worklogic Pty Ltd,’ provided under cover of a letter from Mr Joyce to him dated 25 October 2017 (‘the 25 Oct 17 letter’);[68]
[68]Ibid exhibit SAF-27.

(h) on 13 November 2017, solicitors for the defendants emailed a copy of the redacted First Report[69] and attachments to the plaintiff’s solicitors;
[69]Ibid exhibit SAF-32.

(i) there was correspondence before and after this between the solicitors concerning the plaintiff’s request for an unredacted copy of the report and the refusal of the defendants to provide an unredacted copy, and other issues such as the plaintiff’s requests for particulars of the allegations;

(j) the First Report is heavily redacted: the names of witnesses and much of the ‘Analysis of Evidence’ section are redacted. The findings are not redacted nor are the sections titled ‘Issues Arising’ and ‘Alleged Policy Breaches’; and

(k) the plaintiff was not provided with attachments to the report containing transcripts and notes of interviews with witnesses.

I find that the plaintiff was given an opportunity to be heard in respect of the allegations against him because he was provided with the full allegations, and later, the contradictory evidence against him, together with the opportunity to provide written and oral responses to the allegations and the contradictory evidence.

The plaintiff has not established that he was denied the opportunity to respond to adverse information that was credible, relevant and significant. He did not, for instance, subpoena the investigator in order to challenge, at trial, her summary of the contradictory evidence as incomplete.

It was unnecessary for the investigator to provide the plaintiff with full copies of witness interviews in circumstances where he had been provided with the full allegations and the contradictory evidence. Further, it was unnecessary for the investigator to provide the plaintiff with her deliberative material.[70] As the authorities above establish, the right to be heard is in respect of adverse material.
[70]In a letter from the plaintiff’s solicitors to the SRO dated 27 November 2017, reference is made to the investigator’s ‘pathway of reasoning’ not being apparent: see ibid exhibit SAF- 33.

In the circumstances of a workplace investigation into allegations of harassment, where the plaintiff had received the allegations and summaries of contradictory evidence (with names of persons providing that evidence), it was unnecessary for the investigator to provide copies of the witness statements and name the various witnesses in her report.

Turning now to the particular allegations.

The plaintiff says there is a breach of s 20(3) of the PAA. As discussed above, it is common ground that s 20(3) of the PAA requires public service body Heads to exercise powers in conformity with the employment principles in s 8. Relevant to the plaintiff’s allegations, those principles include that ‘public sector employees are treated fairly and reasonably’. He alleges, amongst other things, that he has not been treated fairly and reasonably and therefore the defendants breached s 20(3).

Given that the plaintiff was provided with an opportunity to be heard, I find no breach of the principle that he be treated fairly and reasonably.

Further, the plaintiff has not proven any practical injustice. As discussed above, I am satisfied that he was given the opportunity to respond to the allegations and adverse material. Using Allegation 4 as an example,[71] it states:

In the period between 27 April 2017 and 20 May 2017, on approximately 2-3 occasions you made inappropriate or offensive comments in the workplace to Ms [colleague], in relation to an advertised selection process for Customer Service Officer roles, and about Mr [colleague] and Ms [colleague] including words to the effect:
·     “Don’t bother to apply for the customer service officer role, because [name] wouldn’t want you.”
·     “You are more attractive than her and smarter, and [name] would feel threatened”
·     “[Name] hates you as you’re an attractive girl and she always get she wants [sic].”
·     “[Name] is scared of [name] so he’s not going to give you that role anyway, because [name] wouldn’t want you.”
·     “That [name] will go for you , and [name] will come after you.”[72]

[71]This allegation was agreed as the case study by the parties: see Transcript (n 5) 314.

[72]SAF (n 12) exhibit SAF-32.

It should be borne in mind that the plaintiff was given the names redacted above and therefore knew the names in the findings below.

The investigator found the allegation partially proven and partially not proven:

It is proven that, on two occasions, Mr Tucker said words to the effect that Ms [name] should not bother to apply for the customer service role because Ms [name] would not want Ms [name] and because [she] is more attractive than her and that comment was inappropriate and offensive.
It is not proven that Mr Tucker said to Ms [name] that [name] is scared of [name] so he is not going to give Ms [name] the role anyway.
The investigator comments, from the perspective of a layperson, that the proven behaviour is an apparent breach of policy, at the lower end of seriousness.[73]

[73]Ibid.

Focusing on the part of the allegation that was proven, the adverse material against the plaintiff is evident from reading the two documents with contradictory evidence. The plaintiff denied that he made the alleged comments, and specifically denied the comments attributed to him by witnesses.[74] In her report, the investigator referred to his denial and the claims he made about other witnesses. She found that the plaintiff’s version of events was ‘not convincing because it is implausible’ and ‘not credible’.[75] The investigator found there was evidence corroborating the allegation.[76] The evidence is redacted in the First Report but the plaintiff had already been given summaries of the contradictory evidence against him and the opportunity to respond to it. As to the evidence against him, the investigator found that ‘the various reports and reports of reports appear to have led to the various recollections all being slightly different and possibly becoming somewhat embellished and exaggerated, as the comment was discussed by many of the staff. It is clear that the available witness evidence is unreliable to some extent as a result.’[77] In conclusion, ‘[d]espite these flaws, the investigator finds that the weight of the evidence is that Mr Tucker did say words to the effect’ alleged above.[78] Given this finding, even if the plaintiff was provided with the unredacted witness statements, or the names of witnesses, it would not affect the investigator finding his explanation to be implausible and not credible. Nor could it affect the finding that the weight of evidence was against him. This is not, for instance, a situation where there is a witness that the plaintiff says he has identified who corroborates his version of events but was not interviewed.
[74]See, for instance, his written witness statement given to the investigator and dated 4 September 2017, pages 3-4: SAF (n 12) exhibit SAF-24.
[75]Lisa Klug, Workplace Investigation Report: State Revenue Office (Report, 12 September 2017) 27.
[76]Ibid 33.
[77]Ibid.
[78]Ibid.

In short, the plaintiff has failed to establish that receiving the information redacted in the First Report, or the annexures to it, would make any practical difference to the outcome of the investigation or the proposed disciplinary outcome. I find there is no practical injustice to the plaintiff and no breach of s 20(3) of the PAA.

(2)At para 25 of Tucker, McDonald J made it clear that the Court’s jurisdiction to grant a declaration in respect of the VPSEA could only be enlivened on a jurisdictional basis other than the VPSEA itself.
(3)During oral argument in the Tucker ruling, counsel for the plaintiff acknowledged the parties were in ‘heated agreement’ that his client would need to pursue his claim for contravention of s 50 elsewhere. This was a representation to the Court. The plaintiff’s position fundamentally changed between 13 June 2018 and 1 February 2019.

[160]Tucker (n 157).

[161]Transcript (n 5) 412.

[162]Defendants’ Final Submissions (n 150) [14].

While the plaintiff had asserted a contravention of the FWA (without reference to s 50) in his submissions filed on 11 December 2018, the declarations sought were for breaches of the VPSEA not the FWA.[163] Their understanding, as evinced by para 8(b) of their submissions filed on 21 December 2018, was that the plaintiff was asserting a breach of the VPSEA only.[164]
[163]Transcript (n 5) 412.
[164]Ibid.

The plaintiff’s failure to identify his reliance on s 50 until the eve of the trial led the defendants to consent to the filing of the 2FASOC in circumstances where they would not otherwise have done so.[165] They also lost the opportunity to have the issue dealt with prior to trial. The prospect of the plaintiff being granted leave to amend his pleadings so close to trial would have been particularly poor.[166]
[165]Defendants’ Final Submissions (n 150) [12].
[166]Ibid [16.2].

Thirdly, the plaintiff’s attempt to reintroduce a claim previously refused by this Court is an abuse of process.[167] McDonald J’s decision in Tucker to refuse to allow the plaintiff to plead breach of s 50 should not be dismissed as a mere interlocutory decision that ‘does not bind Mr Tucker at trial’. Nor should the plaintiff be ‘permitted to brush off concessions’ made by his senior counsel.[168]
[167]Ibid [8.3], [19].
[168]Ibid [8.3], [19].

Fourthly, the plaintiff’s delay in bringing his amendment application until the conclusion of the trial is contrary to ss 7 and 25 of the Civil Procedure Act 2010 (‘CPA’).[169] They put the plaintiff on notice from 21 December 2018 of the absence of a foundation to support a breach of the VPSEA itself. Indeed the plaintiff knew since 18 July 2018 that the Court refused him leave to amend his pleadings to allege contraventions of s 50 of the FWA. Having regard to the facts and other conduct in this matter, the plaintiff has not provided a satisfactory explanation for the delay. The delay has prejudiced them, having lost the opportunity to deal with the matter prior to trial and thereby avoid the need for an adjourned hearing date at significant additional cost.
[169]Ibid [8.3], [20]–[24].

Fifthly, the proposed 3FASOC is defective and if allowed, would be liable to be struck out. It pleads claims abandoned at trial,[170] leaving it unclear whether the plaintiff now seeks to re-enliven those claims or whether para 37A of the proposed 3FASOC is drafted too broadly. Further, para 37A is deficient because it alleges both the defendants contravened s 50 of the FWA. The VPSEA does not apply to the second defendant and therefore the amendment is embarrassing.[171] To allow the pleading now would deny them the opportunity to respond with a defence.
[170]Citing paras 6, 7, 34(d), 34(g), 35, 36, 37(b) and (c) of the proposed 3FASOC.
[171]Defendants’ Final Submissions (n 150) [33.5(b)]; citing s 51(1) of the FWA: ‘An enterprise agreement does not impose obligations on a person, and a person does not contravene a term of an enterprise agreement, unless the agreement applies to the person.’

The plaintiff’s submissions

The plaintiff makes several submissions arising from the principles in Agtrack.[172] Firstly, the purpose of r 13.02(1)(b) of the Rules is to address where a defendant may be ignorant of a statutory obligation. The defendants do not suggest they were ignorant of s 50 of the FWA. Further, there is little reason why an amendment should not be permitted given all the material facts are pleaded and the amendment would ‘merely characterise a liability which the facts will otherwise establish’.[173] If the facts are proved here, liability arises under s 50 of the FWA for breach of the VPSEA.
[172]Plaintiff’s Final Submissions (n 145) [6].
[173]Agtrack (n 151) 75 [18] this principle was affirmed by the High Court in Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251.

The factors from Namberry Craft Pty Ltd v Watson[174] to be considered in the exercise of the discretion to allow an amendment under r 36.04 of the Rules are addressed as follows. The amendment will cause no delay, as there are no further submissions or evidence required and it is merely to regularise the pleadings with the issues at trial. No costs have been or are said to have been wasted. No irreparable prejudice has been incurred by the defendants. The amendment will not lessen public confidence in the judicial system. The delay arises from the plaintiff’s reasonable belief that all the parties accepted he was pursuing a claim under the FWA for contraventions of the VPSEA.
[174][2011] VSC 136, [38] (Vickery J).

On the question of jurisdiction, the Court may grant leave to amend regardless of whether it has jurisdiction to adjudicate the claim.[175] However, this Court does have jurisdiction to entertain a claim under s 50 of the FWA and this is a matter arising under that Act by reason of the existing pleadings and conduct of the matter. Where the Court has not ruled on whether it has jurisdiction, to disallow the pleading on this basis ‘puts the cart before the horse’.[176]
[175]Plaintiff’s Final Submissions (n 145) [24].
[176]Ibid.

As to the prejudice alleged by the defendants, the lost opportunity to have an amendment to the 2FASOC dispensed with prior to trial was caused by the consent given by them to file the 2FASOC.[177] The defendants had opportunity to contest the amendment and were in no better position to do so prior to trial than now.
[177]Ibid [12].

The defendants’ submission that had they known the 2FASOC encompassed a s 50 claim, they would not have consented to its filing is contested. The defendants were told the amendment was to address their s 50 objection. They were obliged to raise any concerns about the 2FASOC, particularly if they truly believed it raised no actionable allegation.

Issue is taken with submissions of the defendants insofar as they refer to the defendants’ state of mind. No affidavit material has been filed to identify what they believed or were confused by. The Court should not act on the defendants’ assertions as to their state of mind in the absence of affidavit evidence.

As to the abuse of process allegations: making a claim not within a court’s jurisdiction is not an abuse of process. Further, the application to amend is not an attempt to reintroduce a previously stuck out claim. The interlocutory ruling of McDonald J in this proceeding is distinguishable from the current application on two bases. First, the relief sought by the proposed amendments considered in Tucker was for penalties for contraventions of s 50, whereas the present relief sought is injunctive and declaratory, available by reason of the Judiciary Act 1903 (Cth). Second, the decision in Tucker was based on a concession by the defendants’ counsel that this Court lacked jurisdiction to determine a claim pursuant to s 50 of the FWA— an incorrect concession which does not bind the plaintiff at trial. Withdrawal of that concession does not prejudice the defendants.

As to the question of delay: there was a common understanding between the parties that this proceeding involved contravention of s 50 of the FWA and therefore it was unnecessary to plead that provision.[178] The defendants had several prior opportunities to object to s 50 not being pleaded (i.e., upon receipt of the proposed 2FASOC), and consequently cannot now complain.
[178]Ibid [21].

Allowing the amendment in order to resolve the FWA claim in this Court facilitates the efficient, timely and cost-efficient resolution of the real issues.

As to the defendants’ submission that the proposed 3FASOC is defective: it may be refuted on two bases. First, the proposed amendment does not enliven the abandoned claims. Second, it is only the first defendant which is alleged in the pleadings to be the plaintiff’s employer and to be covered by the VPSEA.[179]
[179]Referring to paras 2 and 11(b) of the proposed 3FASOC.

Applicable principles

Relevant principles and considerations relating to abuse of process follow. In Tomlinson v Ramsey Food Processing Pty Ltd,[180] the High Court stated:

Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute.[181]

[180](2015) 256 CLR 507 (‘Tomlinson’).

[181]Ibid 518–19 (French CJ, Bell, Gageler and Keane JJ) (citations omitted).

In Commissioner of State Revenue v Mondous[182] (‘Mondous’) the Court of Appeal stated:
[182](2018) 55 VR 643 (‘Mondous’).

The considerations relevant to determining whether the raising of an issue in successive proceedings gives rise to an abuse of process have been articulated more than once along the following lines:[183]
[183]See eg, Kermani v Westpac Banking Corporation (2012) 36 VR 130, 154–5 [97] (Robson AJA, Neave and Harper JJA agreeing); Timbercorp Finance Pty Ltd (In Liq) v Collins [2016] VSCA 128 [228] (Warren CJ, Santamaria and McLeish JJA); Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198, 204 [32] (Handley JA, Mason P and Heydon JA agreeing); R v O'Halloran (2000) 159 FLR 260, 291 [107] (Heydon JA, Spigelman CJ and Mason P agreeing); State Bank of NSW v Stenhouse Ltd [1997] Aust Torts Reports [81-423] 64,077, 64,089 (Giles CJ).
The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice. Regard may be had to:
(a)the importance of the issue in and to the earlier proceeding, including whether it is an evidentiary or ultimate issue;

(b)       the opportunity available and taken to fully litigate the issue;
(c)       the terms and finality of the finding as to the issue;
(d)      the identity between the relevant issues in the two proceedings;
(e)any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceeding;
(f)the extent of the oppression and unfairness to the other party if the issue was re-litigated and the impact of the re-litigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and
(g)an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.

Further, the Court of Appeal stated ‘the identification of the issue said to be common to both proceedings plays a central role in deciding whether there is an abuse of process in seeking to litigate that issue again.’[184]
[184]Mondous (n 182) 673 [122] (McLeish JA).

In Mondous, the Court of Appeal observed that the identified issues were ‘merely findings’ and ‘only steps along the way to the determination of that proceeding’.[185]
[185]Ibid.

Here, the issue is not successive proceedings but whether or not the application is an abuse of process because of an earlier decision in the same proceeding. Nevertheless, the considerations in Mondous are informative. So too are the considerations identified in abuse of process decisions concerning repeated agitation of the same application within a proceeding.[186] Those considerations ultimately concern whether it is in the interests of justice to permit the same application to be made again.[187] Significant principles identified in DA Christie Pty Ltd v Baker include ‘the important public interest in ensuring that judicial determinations are binding, final and conclusive and that there should not be conflicting decisions on the same issue’.[188]
[186]See, eg, DA Christie Pty Ltd v Baker (1996) 2 VR 582 (‘DA Christie’); Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd [2006] VSC 170 (‘Tenth Vandy’).
[187]Tenth Vandy (n 186); Racovalis v Rescom Mortgages Pty Ltd (2010) 28 VR 250, 255 [30] (‘Racovalis’).
[188]DA Christie (n 186) 605.

The Court of Appeal in Racovalis v Rescom Mortgages Pty Ltd[189] (‘Racovalis’) identified the following considerations:

the effect on a party who, having been successful in opposing an application, is faced with a second application; the effect of any delay in making a second application; whether there was an explanation for the new material not being provided to the court on the earlier application; the nature of that material; and whether a fair trial can be held.[190]
[189]Racovalis (n 187).
[190]Ibid 255 [30].

Analysis

On 18 July 2018, McDonald J published a ruling in this proceeding.[191] McDonald J disallowed an application by the plaintiff to amend his statement of claim to plead a contravention of s 50 of the FWA. I recite relevant parts of that ruling.[192]
[191]Tucker (n 157).
[192]Ibid [15]–[21] (bold added).

Section 50 of the FWA provides that a person must not contravene a term of an enterprise agreement. Section 50 is a civil remedy provision.[193] Section 539(2) of the FWA provides:
[193]FWA s 539(1).
For each civil remedy provision, the persons referred to in column 2 of the item may, subject to sections 540 and 544 and Subdivision B, apply to the courts referred to in column 3 of the item for orders in relation to a contravention or proposed contravention of the provision, including the maximum penalty referred to in column 4 of the item.

Item 4 of the table in s 539(2) of the FWA provides that an application in respect of an alleged contravention of an enterprise agreement may be filed in the Federal Court, the Federal Circuit Court or an eligible State or Territory court. ‘Eligible State or Territory court’ is defined in s 12 of the FWA as including the Magistrates’ Court and/or the County Court. The Supreme Court of Victoria is not an eligible court.
Paragraphs 40 to 46 of the proposed FASOC plead seven separate contraventions of s 50 of the FWA. Paragraph J of the prayer for relief seeks the imposition of penalties in respect of the seven alleged contraventions. The Supreme Court of Victoria has no jurisdiction to hear and determine the plaintiff’s claim for penalties for contravention of the VPSEA.[194]
The Court has power under r 36.01(1)(a) of the Supreme Court (General Civil Procedure) Rules 2015 to grant leave to amend a pleading for the purpose of determining the real question in controversy between the parties. The exercise of this power is subject to the overarching purpose under s 7 of the [CPA] of facilitating the just, efficient, timely and cost effective resolution of the real issues in dispute.
The phrases ‘real question in controversy’ and ‘real issues in dispute’ must be read subject to any constraints imposed upon the Court’s jurisdiction to resolve issues in dispute between the parties. The fact that the plaintiff wishes to pursue a claim for penalties for alleged contravention of the VPSEA does not confer upon the claim the status of ‘a real issue in dispute’. This conclusion is reinforced by the fact that ‘court’ is defined in s 3 of the CPA as the Supreme Court, County Court or Magistrates’ Court. Mr Williams QC, who appeared with Ms Paszkiewicz for the plaintiff, acknowledged that the parties were in ‘heated agreement’ that if the plaintiff wishes to pursue his claims alleging contravention of s 50 ‘we’ve got to go somewhere else to do it’.[195] An issue in dispute between the parties which is not within the Supreme Court’s jurisdiction is not a real issue in dispute.
As the Court has no power to grant the relief sought in respect of the alleged breaches of the VPSEA it is highly questionable whether r 36.01 is a source of power to grant the amendment sought. Assuming in the plaintiff’s favour that there is power to grant the amendment, it is not an appropriate exercise of that power to permit an amendment to plead a cause of action which the Court has no power to hear and determine.
I reject the plaintiff’s application to file the proposed FASOC insofar as it includes the allegations in paragraphs 40 to 46 and the relief claimed in paragraph J of the prayer for relief. The plaintiff is otherwise granted leave to file the proposed FASOC…

[194]Cf In the matter of Optimisation Australia Pty Limited [2018] NSWSC 31 [433]–[441]; The Australian Steel Company Limited v Communications Electrical, Electronics, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2004] VSC 61, [10].

[195]Transcript of Proceedings, Tucker v State of Victoria (Supreme Court of Victoria, S CI 2017 05032, McDonald J, 13 June 2018) 21.26–21.28.

The application now brought by the plaintiff to plead breaches of s 50 asks the Court to arrive at a contrary finding to McDonald J, on an issue already determined by his Honour in this proceeding. Crucially, his Honour did not allow an amendment to include seven paragraphs which pleaded contraventions of s 50. For example, proposed para 40 was disallowed and is as follows.

By reason of the matters set out in paragraphs 34(d) to 34(g) above, the defendants failed to afford the plaintiff procedural fairness as required by clause 21.6 of the VPSEA and thereby contravened section 50 of the FWA.

Nor did McDonald J allow the amendment to plead penalties for contraventions of s 50. Given that none of the seven paragraphs were permitted, I reject the submission that the issue before his Honour was confined to whether this Court could order penalties under the FWA. This view is supported by his Honour’s finding in the ruling: ‘it is not an appropriate exercise of [r 36.01 of the Rules] to permit an amendment to plead a cause of action which the Court has no power to hear and determine’.[196]
[196]Tucker (n 157) [20] (bold added).

Further, I reject the plaintiff’s suggestion that the ruling was based on a concession by his counsel. Clearly a concession was made— it is on the record. However, it is evident from the paragraphs above, McDonald J made a considered ruling following an analysis of the provisions in the FWA. It is immaterial that the plaintiff’s 1 February 2019 submissions on the issue of jurisdiction were not before his Honour at the hearing on 13 June 2018. The plaintiff’s submissions do not constitute new material unavailable in June last year, but rather arguments available at the time that were not made before McDonald J. No explanation has been provided as to why the submissions were not made then. The issue has already been decided without those submissions.

Whilst I consider that any prejudice to the defendants arising from the late amendment application could be met with an appropriate costs order, this factor does not override the following issues.

The current application, in seeking to reintroduce a s 50 claim, is an abuse of process that would bring the administration of justice into disrepute. I have reached this conclusion for the following reasons.

Firstly, the plaintiff’s application theoretically risks different judges making different findings on the same issue in the same proceeding, without recourse to the appeals process. It would undermine the important role of that process by permitting the repeated agitation of the same application without regard to that process. The plaintiff elected not to appeal McDonald J’s decision but now re-agitates the same issue.

Secondly, McDonald J’s ruling was the ultimate finding on whether the plaintiff should be given leave to plead s 50 and on the underlying issue of jurisdiction. It was not simply a procedural step. It was a judicial ruling, the finality of which is subject only to the appeals process. I reject the suggestion that the ruling is not binding on the plaintiff at trial because it was interlocutory. It was not appealed and the proceeding continued on the basis that pleading s 50 was disallowed. To allow the plaintiff to plead s 50 now would undermine the principle of finality.

Thirdly, the plaintiff made the application during his reply submissions at trial: after 4pm on the fourth and final day of the trial and over 90 days after the trial commenced.[197] This was extraordinarily late and unfair. Although no application was made to reopen evidence, nor was fresh evidence required to agitate the application, there had passed almost 10 months between the ruling of McDonald J and the final day of the trial. During that time the plaintiff did not seek to amend his claim to plead s 50.
[197]Whilst the first three trial days were consecutive, the fourth trial date was set several months later to enable the filing of further submissions.

I reject the plaintiff’s submission that the trial proceeded on a mutual understanding between the parties that it involved an allegation of breach of s 50 of the FWA. This does not satisfactorily explain the delay in seeking the amendment and is incorrect.

In their submissions of 21 December 2018, the defendants submitted that there was no jurisdictional basis for a claim based on breach of the VPSEA per se.[198] They were clearly concerned as to how breach of the VPSEA was actionable, going as far as to suggest that if it were based on s 50 of the FWA, then McDonald J’s decision precluded such a claim in this Court. The opportunity here for the plaintiff to clarify the basis for his claim was palpable.
[198]Defendants’ Outline of Submissions, filed on 21 December 2018, [9].

By way of letter dated 14 January 2019, the plaintiff’s solicitors wrote to the defendants proposing amendments to the FASOC (but did not provide the proposed pleading).[199] The letter indicates that the amendments were to clarify the plaintiff’s contention that the VPSEA was incorporated by reference into his contract and that the Court could, and should, grant relief for a contravention of the VPSEA. The letter says that if the defendants do not agree to both amendments then ‘irrespective of whether ultimately your client succeeds in the Supreme Court, our client has the right to bring proceedings in the Federal Court of Australia to enforce the VPSEA’.
[199]Exhibit ‘APG-1’ to the affidavit of Alison Paget Gallaher, sworn on 6 May 2019 (‘the Gallaher affidavit’).

The plaintiff was again invited to clarify the basis for his claim by way of letter from the defendants on 16 January 2019.[200] The letter states that ‘the jurisdiction of the Court with respect to contraventions of the VPSEA was dealt with by McDonald J in his interlocutory decision’. In respect of the potential Federal Court application, the letter states that making such an application while this proceeding is on foot would be an abuse of process amendable to summary judgment or stay. Further, that on 19 July 2018, the defendants had queried whether the plaintiff intended to file the proposed FASOC in accordance with leave granted by McDonald J, or if he intended to discontinue and pursue new proceedings in the Federal Court. The letter concludes: ‘If the plaintiff wished to discontinue the Proceeding and pursue new proceedings in the Federal Court he could and should have done so at the time.’
[200]Exhibit ‘APG-2’ to the Gallaher affidavit.

Under cover of a letter dated 22 January 2019, the proposed 2FASOC was provided to the defendants.[201] The letter states that the amendments are ‘minor in nature and better clarify and articulate our client’s claim, in light of your client’s submissions’ and ‘the submissions deal with the merits of the matter.’[202] Neither the proposed 2FASOC nor the submissions referred to s 50 of the FWA. The 2FASOC was filed by consent on 31 January 2019.
[201]Gallaher affidavit, [8].
[202]Exhibit ‘APG-3’ to the Gallaher affidavit.

It was not until the plaintiff’s submissions on 1 February 2019 that he revealed to the defendants that his claim again sought orders for a breach of s 50. This is particularly unfair after the defendants had repeatedly sought clarity on the issue well before trial.

The plaintiff submits that the timing of the amendment application was to clarify a matter that was the subject of an affidavit filed on the final day of the hearing and which formed the basis of a submission made that afternoon that the defendants did not know a claim was raised under the FWA. I reject that explanation. The affidavit, being the Gallaher affidavit, simply summarises and exhibits correspondence exchanged between the parties. The transcript confirms that the amendment application was made immediately following the Court’s question as to whether the plaintiff needed to plead the contraventions of legislation that he said had been breached.[203] Further, it is the responsibility of a plaintiff, not a defendant, to plead the causes of action upon which they rely.
[203]Transcript (n 5) 422.

Finally, it is necessary to consider the application in light of ss 7 and 25 of the CPA.

7        Overarching purpose
(1)The overarching purpose of this Act and the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost‑effective resolution of the real issues in dispute.
(2)Without limiting how the overarching purpose is achieved, it may be achieved by—
(a)       the determination of the proceeding by the court;
(b)       agreement between the parties;
(c)       any appropriate dispute resolution process—
(i)       agreed to by the parties; or
(ii)      ordered by the court.

25       Overarching obligation to minimise delay
For the purpose of ensuring the prompt conduct of a civil proceeding, a person to whom the overarching obligations apply must use reasonable endeavours in connection with the civil proceeding to—
(a)       act promptly; and
(b)       minimise delay.

The plaintiff’s amendment application is inconsistent with the overarching purpose of the CPA and the obligation in s 25. As discussed above, it was not timely. It has caused further delay and unnecessary costs because it necessitated further submissions post-trial to address the question of amendment.

Given the factors above, it is not in the interests of justice to allow the amendment. It is an abuse of process. Consequently, I will not deal with the substance of the application. To do so would perpetuate the abuse.[204]
[204]Mondous (n 182) 680 [155]–[156] (McLeish JA).

Conclusion

The plaintiff’s claims in this proceeding are dismissed.

I will give the parties an opportunity to make submissions on the costs of the proceeding and the form of orders consequential to this judgment.

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CERTIFICATE

I certify that this and the 76 preceding pages are a true copy of the reasons for Judgment of Ierodiaconou AsJ of the Supreme Court of Victoria delivered on 16 July 2019.
DATED this sixteenth day of July 2019.

Associate