Voxson Sales Pty Ltd v Collector of Customs

[1993] FCA 609

STEPHEN DAVID BARNES v. RANGER URANIUM MINES PTY LTD
No. D11 of 1992
FED No. 609
Number of pages - 15
Industrial Law
(1993) 44 FCR 331

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY AT DARWIN
INDUSTRIAL DIVISION
VON DOUSSA J

CATCHWORDS

Industrial Law - Practice and Procedure - applicants' employment terminated on the ground of redundancy - allegation that termination harsh, unjust or unreasonable and in breach of several Award conditions imported into the contract of service - whether pleadings and facts disclose a reasonable cause of action for damages for breach of contract - whether it could be held that damage was caused by the alleged Award breaches - motion under FCR O.11, r.16(a) and O.20, r.2(1)(a) to strike out and dismiss claim for damages - appropriateness of such applications at trial discussed - inherent jurisdiction to dismiss a claim that cannot succeed.

Gregory v Philip Morris Ltd (1988) 80 ALR 455 discussed

Wheeler v Philip Morris Ltd (1989) 97 ALR 282 discussed

Bostik (Australia) Pty Ltd v Gorgevski (No.1) (1992) 36 FCR 20 discussed

HEARING

DARWIN

#DATE 27:8:1993

JUDGE1

Reasons for ruling given on 24 August 1993.

VON DOUSSA J The trial of these proceedings commenced on 23 August 1993. Before counsel for the applicants opened the case, senior counsel for the respondents sought to argue a notice of motion filed on 20 August 1993 seeking orders that the claims for relief in paragraphs 3 and 4 of the application be dismissed pursuant to FCR O.20, r.2(1)(a), and that paragraph 27 of the amended Statement of Claim be struck out pursuant to O.11, r.16(a).

1. In the application, in paragraphs 1 and 2 seek the imposition of a penalty pursuant to s.178 of the Industrial Relations Act 1986 for breaches of four clauses of the Uranium and Metalliferous Mining (NT) Award 1985 ("the Award"), and payment of the penalty to the applicants. In paras. 3 and 4 the applicants seek damages for breach of their contracts of service, and an award of interest. The Statement of Claim relevantly alleges that the 14 applicants were at 4 November 1991 employed by the respondent at the Ranger Uranium Mine; each of them was a member of the Federated Miscellaneous Workers Union or of the Australasian Society of Engineers or of the Federation of Industrial Manufacturing and Engineering Employees being organisations registered under the Industrial Relations Act; that each of them was employed on terms which included, by express importation or by implication, the provisions of the Award; that on 4 November 1991 the employment of each of them was terminated by the respondent "by reason of each having been made redundant"; that the terminations were in breach of three clauses of the Award (the fourth Award breach alleged in the application concerns the manner of calculation of payments in lieu of notice under the Award); and finally in para.27 that:
   

"As a consequence of the said breaches each applicant suffered loss and damage.

PARTICULARS

(a) Loss of opportunity to continue the said employment;

(b) Loss of annual salary, benefits and emoluments as follows: (Particulars of loss to the date of the applicants - a period of just over one year - are given for each applicant.)

(c) ... (not relevant)

(d) Less the following payments which the applicants have received:

(Particulars of all 'redundancy' and other payments made by the respondent on or after the terminations of employment are detailed.)"

1. When the notice of motion was filed the solicitors for the respondent advised the applicants' solicitors that the grounds for the notice of motion were:
   

"1. The Applicants' case is necessarily based on, inter alia, the following premises:-

(a) Employment of each of the Applicants was terminated by reason of their redundancy.

(b) The consequence of termination of the employment was loss of employment and associated benefits.

(c) The provisions of clause 45 of the Uranium and Metalliferous Mining (NT) Award 1985 applied to the termination of employment of each of the Applicants;

(d) The terms of the Award were express terms of the contract of employment between each Applicant and the Respondent.

2. The Applicants claim damages by way of compensation for the loss of employment and associated benefits.

3. The Applicants have not pleaded, contended, or filed evidence to support a claim that had the Respondent complied with all of its obligations under the Award they would not have lost their employment by reason of redundancy.

4. The Applicants are accordingly unable to establish any loss or damage flowing from any breach of award or contract as alleged.

5. Alternatively, on the Applicants' case the contracts made express provision for the appropriate level of compensation for loss of employment and associated benefits as a result of redundancy.

6. It is not open to the Applicants to claim as damages a level of compensation greater than that which the contracts expressly provided.

7. For this reason also, the Applicants' claim for additional compensation for loss of employment and associated benefits must fail."

1. Applications for an order striking out the whole or part of the pleadings in a proceeding under O.11, r.16, or for an order that the proceeding be stayed or dismissed generally or in relation to any claim for relief under O.20, r.2 should ordinarily be brought at an early stage in the proceedings, usually as soon as reasonably practicable after the pleading or other document claiming relief which is under attack is filed. This is so as one of the purposes of these rules is to prevent the parties pointlessly incurring costs in the pursuit of relief that is plainly unattainable in the proceedings as they stand. Whilst O.11, r.16 provides that the Court is empowered to act "at any stage of the proceeding" (words not appearing in O.20, r.2), the rule does not lend itself for use once a matter is called on for trial. When an application is considered under O.11, r.16 one issue for the Court is whether the impugned pleading is capable of being remedied by amendment, and even if an order is made, that will only strike out the pleading or part thereof. The proceeding itself is not struck out and the applicant will ordinarily be afforded an opportunity to re-plead the case, at least where the order is made on a first application under O.11, r.16.

2. This case had been specially fixed for a trial over two weeks. It would be contrary to the aims of case-flow management, disruptive to the business of the Court, and very expensive to the parties to make an order under O.11, r.16 which had the effect of aborting the trial and adjourning the matter for further pre-trial procedures. I therefore indicated to counsel that I would not hear the notice of motion before the trial commenced. I directed that the applicants open their case and, in doing so, invited them to identify the evidence on which they relied to meet the contention of the respondent that no fact was pleaded or identified in the affidavit evidence filed by the applicants to establish that they would not have lost their employment had the alleged breaches of contract not occurred.

3. At the conclusion of the opening of the applicants' case, counsel for the respondent again sought to move the Court to dismiss summarily the claim for damages said to result from the terminations in breach of the provisions of the Award. The respondent then sought to rely on the inherent jurisdiction of the Court to terminate a claim that cannot succeed, as well as on the Rules of Court earlier discussed. I allowed the respondent to do so for the following reasons. During the pre-trial stages of the proceedings a direction had been given that the matter proceed on affidavit evidence. The evidence proposed to be led on the applicants' behalf was therefore reduced to writing, and the opening had identified the fifteen affidavits which the applicants would seek to read. In addition counsel for the applicants had identified a substantial assortment of papers obtained through discovery from the respondent which were to be tendered by consent and to be received into evidence as business records. The full extent of the evidence on factual matters to be relied on by the applicants was therefore known, and available to the Court for the purpose of considering the argument. The respondent conceded that for the purpose of its motion the Court should accept that the applicants would make out their case that the provisions of the Award formed terms of the contract, and that the terminations occurred in breach of the three relevant Award conditions. The motion therefore raised two questions of law: could the pleadings and the evidence support a finding that the applicants suffered damage in consequence of the assumed breaches of the contracts of service; and if so, were the applicants confined by the terms of their contracts (being the Award provisions) to the redundancy payments specified in the Award. The applicants pleadings on damages, their affidavits and their opening indicated that if the trial ran the course proposed by the applicants, a great deal of evidence and much time would be spent on the issue of damages, the position of each applicant having to be considered separately. If the respondent's contentions were correct, there would be a substantial saving in time and expense. The expeditious course was to allow the argument on the points of law forthwith, not after a lot of evidence had been led on damages which could turn out to be unnecessary.

4. The principles which are to be applied where the inherent jurisdiction of the Court is invoked to summarily terminate an action or a claim forming part of an action, are discussed in General Steel Industries Inc. v Commissioner for Railways (NSW) and Others (1964) 112 CLR 125. At pp 128-129 Barwick CJ said:
   

"The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. I have examined the case law on the subject, to some of which I was referred in argument and to which I append a list of references. There is no need for me to discuss in any detail the various decisions, some of which were given in cases in which the inherent jurisdiction of a court was invoked and others in cases in which counterpart rules to Order 26, r.18, were the suggested source of authority to deal summarily with the claim in question. It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense'.

At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or 'so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument'; 'so to speak apparent at a glance'. As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same."

Barwick CJ went on to quote from the judgment of Dixon J (as he then was) in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 where his Honour said:

"A case must be very clear indeed to justify the summary intervention of the Court to prevent a plaintiff submitting his case for determination in the appointed manner by the Court with or without a jury."

These principles were succinctly summarised in terms particularly apposite to this case by Griffith CJ in argument in Bayne v Baillieu (1908) 6 CLR 382 at 387:

"The defendant must show that under no possibility could there be a good cause of action consistently with the pleadings and the facts."

1. It is common ground that on 4 November 1991 the respondent terminated the employment of 124 people, or 41.7 per cent in its work force at Jabiru. Of those, 39 were staff members, and 85 were people employed under the Award. The fourteen applicants are some of the latter group. The applicants relied in their opening on the following statement in the 1992 Annual Report of Energy Resources of Australia Ltd ("ERA"), of which the respondent is a wholly owned subsidiary, as a summary of the respondent's reasons for those terminations:
   

"In years past, ERA sought productivity improvements and cost reductions by optimising operations at Ranger at full production, building a significant inventory of product in excess of sales in the process. In 1991, it became clear that, given forecast market conditions, this mode of operations could not continue. On 4 November 1991, ERA implemented a carefully planned program of restructuring at Ranger to reduce production to about 1700 tonnes U3O8 per year without penalty to unit costs.

Regrettably, this action resulted in the retrenchment of 41.7 per cent of the workforce but, by doing so, Ranger's viability, both short and long term, has been preserved and indeed enhanced."

1. The respondent's records disclose that a major reduction in the operation of the Ranger Uranium Mine had been under consideration for some weeks prior to 4 November 1991 for the reasons given in the above statement. Many diverse options were identified, including the option of complete closure of the mine. Some of the options were thought to be impracticable and were put to one side. Others were considered in depth. At a meeting of directors of ERA held in Sydney on 17 October 1991 the Chief Executive Officer of ERA gave a presentation on a number of Five Year Forecast scenarios. One, referred to in the Board Minutes as Case 1, was discussed at length. The directors resolved that Case 1 be implemented. The only inference reasonably open from the records is that it was the implementation of that resolution which led to the termination of the employment of 124 people on 4 November 1991. There was therefore a definite decision to make major change and to terminate the employment contracts of many people made on 17 October 1991.

2. The relevant clauses of the Award read:
   

"CL7(d) Unfair dismissals

(vi) Termination of employment by an employer shall not be harsh, unjust or unreasonable.

For the purposes of this clause, termination of employment shall include terminations with or without notice. ...

CL44 INTRODUCTION OF CHANGE

Employer's duty to notify

(a) (i) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure of technology that are likely to have significant effects on employees, the employer shall notify the employees who may be affected by the proposed changes and their union or unions.

(ii) 'Significant effects' include termination of employment, major changes in the composition, operation or size of the employer's workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations and the restructuring of jobs. Provided that where the award makes provision for alteration of any of the matters referred to herein an alteration shall be deemed not to have significant effect. Employer's duty to discuss change

(b) (i) The employer shall discuss with the employees affected and their union or unions, inter alia, the introduction of the changes referred to in subclause 44(a) hereof, the effects the changes are likely to have on employees, measures to avert or mitigate the adverse effects of such changes on employees and shall give prompt consideration to matters raised by the employees and/or their unions in relation to the changes.

(ii) The discussions shall commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in subclause 44(a) hereof.

(iii) For the purposes of such discussion, the employer shall provide in writing to the employees concerned and their union or unions, all relevant information about the changes including the nature of the changes proposed; the expected effects of the changes on employees and any other matters likely to affect employees provided that any employer shall not be required to disclose confidential information the disclosure of which would be inimical to the employer's interests.

CL45 REDUNDANCY

Discussions before terminations

(a) (i) Where an employer has made a definite decision that the employer no longer wishes the job the employee has been doing done by anyone and this is not due to the ordinary and customary turnover of labour and that decision may lead to termination of employment, the employer shall hold discussions with the employees directly affected and with their union or unions.

(ii) The discussions shall take place as soon as is practicable after the employer has made a definite decision which will invoke the provisions of paragraph 45(a)(i) hereof and shall cover, inter alia, any reasons for the proposed terminations, measures to avoid or minimise the terminations and measures to mitigate any adverse effects of any terminations on the employees concerned.

(iii) For the purposes of the discussion the employer shall, as soon as practicable, provide in writing to the employees concerned and their union or unions, all relevant information about the proposed terminations including the reasons for the proposed terminations, the number and categories of employees likely to be affected, and the number of workers normally employed and the period over which the terminations are likely to be carried out. Provided that any employer shall not be required to disclose confidential information the disclosure of which would be inimical to the employer's interests.

(b) ...

Severance pay

(c) In addition to the period of notice prescribed for ordinary termination in subclause 7(d) of this Award, and subject to further order of the Commission, an employee whose employment is terminated for reasons set out in paragraph 45(a)(i) hereof shall be entitled to the following amount of severance pay in respect of a continuous period of service: Period of continuous service Severance pay 1 year or less nil More than 1 year and up to the

completion of 2 years 4 weeks' pay More than 2 years and up to the

completion of 3 years 6 weeks' pay More than 3 years and up to the

completion of 4 years 7 weeks' pay More than 4 years and 8 weeks' pay"

1. The conduct of the respondent said to have broken the requirements of clauses 7(d)(vi), 44 and 45 respectively, as disclosed by particulars given in the Statement of Claim, is essentially the same in each case, namely, a failure to adequately consult with the employees whose positions were under consideration, and with their unions, as required by clauses 44 and 45, a failure to explore alternatives to termination of employment, and a failure to ascertain from each of the applicants what alternatives to termination he might propose. The information before the Court suggests that a consultation process of the kind envisaged by clauses 44 and 45 did not commence with the unions until 31 October 1991, and that many of those who were given notices of termination on 4 November 1991 received little or no advance warning from the respondent.

2. The respondent had requested further particulars as to (a) the alternatives to termination which the applicants alleged were available, and as to (b) the views of each of the applicants in relation to such alternatives. The response to the request was in the following terms:
   

"(a) Ranger failed to investigate alternatives to the dismissal of each Applicant which included:

(i) Termination of employment by way of natural attrition.

(ii) Termination of employment by way of voluntary redundancy.

(iii) A moratorium on and/or minimisation of overtime being worked by employees of the Respondent.

(iv) Job sharing.

(v) Voluntary reductions in over-award payments.

(vi) Increases in rostered days off.

(vii) Voluntary use of accrued annual and/or long service leave.

(viii) Voluntary use of long service leave by taking it in half-day entitlements thus doubling the length of leave.

(ix) Cessation of recruitment by the Respondent.

(x) Allowing employees to have paid or unpaid leave.

(xi) Minimisation of use of independent contractors.

(xii) Allowing transfer of the employment of its employees to companies within the same corporate group as the Respondent.

(b) The Respondent is not entitled to the particulars sought."

No point is taken by the respondent that particulars do not constitute material facts when considering whether a pleading alleges material facts necessary to support the cause of action alleged. But whilst the particulars allege failure to investigate several avenues of enquiry there is no material fact alleged anywhere in the pleadings (treating all the particulars as pleadings) which could establish that if consultations, however extensive, had occurred with the applicants and their unions, their contracts of employment would not have been terminated on or about 4 November 1991. No material fact is alleged to justify a factual conclusion that the position of the applicants would have been different had the breaches of the Award not occurred. To plead a cause of action in damages it is necessary to plead the facts that link the wrong alleged to the happening of the loss for which damages are claimed: see Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd and Others (1987) 71 ALR 615. A mere unsubstantiated assertion of a causal relationship does not disclose how a cause of action arises: W.A. Pines Pty Ltd v Bannerman (1980) 30 ALR 559 at 599 per Brennan J. The problem may perhaps be illustrated by taking the case of an employer who is placed under receivership and management, say by a secured creditor, and the receiver and manager, on ascertaining that the company is insolvent and unable to continue trading, terminates the employment of the company's employees without advance notice or discussion. It is not difficult to postulate circumstances surrounding terminations of employment in this situation that would constitute a breach of a clause in terms of clause 45 of the Award. The particular circumstances in which the terminations occur might also constitute a breach of a clause in terms of clause 7 of the Award. Yet in such a case it would be clear that whatever discussions might have taken place between the employer and the employees and their unions, and however kind and just were the circumstances of the termination, the employees nonetheless would have lost their employment opportunities. The breaches of the Award would not be the cause of the loss suffered by the employees. Their loss would be due to the inability of the company to keep trading, and to continue their employment.

1. The motion of the respondent is not to be considered strictly as an application to strike out pleadings. A more liberal view should be taken. The facts identified by the opening should also be considered. If there is any fact amongst all the material relied on by the applicants that could provide the link between the Award breaches alleged and the damages alleged, the case should be allowed to proceed notwithstanding the deficiency in the pleading, so long as an amendment could fairly be made to plead those facts without incurable prejudice to the respondent.

2. I have been carefully through the affidavits of the applicants, and the other evidence proposed to be led. I can find no fact asserted that could support a finding that had the breaches of the Award alleged not occurred, the employment of the applicants would not have been terminated at or about the time when it was, or that their prospects for employment beyond about 4 November 1991 would have been any brighter.

3. On the contrary, the pleadings and evidence of the applicants suggest otherwise. The applicants' case as pleaded does not dispute that the applicants had been made redundant. Paragraph 21 pleads:
   

"On or about 4 November 1991 Ranger terminated the employment of each of the applicants by reason of each having been made redundant.

PARTICULARS

R.A. Cleary ('Mr Cleary'), General Manager-Operations, Ranger, wrote to each applicant a letter dated 4 November 1991 to the effect alleged. A copy of the letter may be inspected by appointment at the office of the applicants' solicitors."

The letter of 4 November 1991 commenced with the following explanation of the action of the company:

"I regret to inform you that owing to the severe and ongoing fall in the uranium sales that ERA is able to secure, we can no longer provide employment for you at Ranger. Hence this letter provides you with notice of the termination of your employment, effective today. You will receive payment in lieu of notice and will be required to terminate your employment today.

You have been made redundant because of the deteriorating position of the Company in the marketplace. In no way is the Company's action a reflection of your job performance.

You may be aware that for several years now the Company has been producing more uranium than we have been able to sell. We did this in the hope and expectation that the situation would improve and that we would then be able to sell the accumulated product profitably. In fact, the market has deteriorated further in recent times and we now have more than a year's sales in stock. We cannot continue to build inventory in the hope that the market will improve; hence the need for a severe cutback of the workforce and this situation today.

..."

The pleadings do not dispute the truth of the explanations for the terminations of the applicants' employment. The evidential material on which the respondent intends to rely tends to confirm, not dispute, the explanations.

1. The respondent's records give a picture of there being an urgency in the need to introduce drastic measures to reduce the size of the Ranger Uranium Mine operation and workforce, and do not suggest that there was any commercial alternative that could have been taken.

2. The applicants do not get over the factual abyss in their case by showing that had consultations gone on for a week or two longer than was the case, their employment might have been terminated a corresponding period later. This is so because the redundancy packages paid to the applicants by the respondent substantially exceed the redundancy entitlement set out in the Award. For example, in the case of the first-named applicant, had his employment been terminated strictly in accordance with the Award, whilst the termination would not have occurred until after a period of consultation sufficient to fulfil the Award requirements, he would have been entitled to a redundancy payment under cl.45 equal to 8 weeks pay. In fact he received a payment equal to 24 weeks pay. So to answer the respondent's arguments the applicants must show that their employment prospects, at the least, would have been extended by several weeks. There is no evidence on which such a finding could be based.

3. Counsel for the applicants, in his forceful argument, conceded that, even if there had been consultation of the kind and to the extent contended for by the applicants' case, "in the end one does not know what difference it would have made, but Ranger foreclosed the opportunity on...the applicants to propound an alternative...". That statement fairly and succinctly put the best case which the applicants could have made on the factual material on which they intended to rely. But that case is one of mere speculation. The applicants carry the onus of proving damage on the balance of probabilities. Speculation without evidence to support it does not provide that proof.

4. The applicants' answer to the respondent's contentions was not to identify factual material which could provide the causal link which the respondent's contended was missing (and which I hold is missing), but to argue that decided cases establish an entitlement to damages for lost employment opportunities once it is established that the applicants' employment has been terminated in circumstances which constitute that termination "harsh, unjust or unreasonable". The three cases relied on were Gregory v Philip Morris Ltd (1988) 80 ALR 455; Wheeler v Philip Morris Ltd (1989) 97 ALR 282 and Bostik (Australia) Pty Ltd v Gorgevski (No.1) (1992) 36 FCR 20.

5. In each of these cases it was held that the conditions of the Award governing the employment of the dismissed employee applicant were incorporated into and formed part of the contract of service; that the relevant Award included unfair dismissal provisions in terms identical to cl.7(d)(vi) of the Award presently under consideration; and that the dismissal of the applicant was "harsh, unjust or unreasonable". In each case the applicant recovered substantial damages for breach of the contract of service. These cases are immediately distinguishable on their facts from the present case. They concerned situations where circumstances particular to the applicant had led to his dismissal, and a finding was made by the court that had the matters which rendered the dismissal in breach of the Award requirements not happened, the applicant's employment would have continued. None of the decisions concerned a situation where the underlying reason for the termination of the employment was that the employee's position had become redundant. When the principles which were applied by the court in assessing the damages in each of those cases are considered these distinguishing features assume critical importance.

6. In Gregory v Philip Morris Ltd the majority of the Court said at p 483:
   

"In principle, the assessment of damages involves a comparison of Gregory's position as it was after his dismissal, with the position in which he would have been placed if he had not been wrongfully dismissed."

1. The majority then made that comparison, and in doing so took into account as a factor requiring a heavy discount in the present value of the future earnings which the applicant would have received had he remained in his employment, the fact that he may have lost that employment sometime in the future because of the stance of his union towards his membership, or because of ill-feeling towards him in the work place from other employees. The other member of the Court, Jenkinson J, would have discounted the future losses of the applicant to an even greater extent than the majority on account of the contingency that the applicant's employment would not continue to be available to him.

2. In Wheeler v Philip Morris Ltd, Gray J at 311 said:
   

"As is apparent from Gregory v Philip Morris Ltd (1988) 80 ALR 455, the damages which can be awarded for a breach of a term such as that implied by cl 6(d)(vi) of the award are to be assessed differently from damages calculated for wrongful dismissal at common law. Those damages were limited to the period of notice which the employer was obliged to give. Where the dismissal is the result of a breach of award, damages will be assessed for loss of the opportunity to continue the employment, discounted appropriately for foreseeable events which might have brought the employment to an end."

In Bostik (Australia) Pty Ltd v Gorgevski (No. 1) the principles which govern the assessment of damages were again discussed. Sheppard and Heerey JJ at pp 32-33 said (and the other member of the Court, Gray J, agreed with this aspect of their judgment):

"In the course of the submissions about the amount of damages to be awarded, there was general discussion about the assessment of damages in a case such as this. The contract in question is a contract of employment which is terminable by either party on giving to the other the applicable period of notice provided for in the award. Where an employee is wrongfully dismissed, he is entitled, subject to mitigation, to damages equivalent to the wages he would have earned under the contract from the date of the dismissal to the end of the contract. The date when the contract would have come to an end, however, must be ascertained on the assumption that the employer would have exercised any power he may have had to bring the contract to an end in the way most beneficial to himself; that is to say, that he would have determined the contract at the earliest date at which he could properly do so: see Gunton v Richmond-upon-Thames London Borough Council (1981) 1 Ch 448 at 469, per Buckley LJ. The common law principles do not assist the company in the present case because of the provisions of cl 9 of the Award which forms part of the contract of service. It provides in effect that the employer may not dismiss an employee, whether with or without notice, if the dismissal is harsh, unjust or unreasonable. It follows that the respondent had substantial security in his employment because he could not be dismissed unless the dismissal was not harsh, not unjust or not unreasonable. His Honour therefore had to consider the matter upon the basis that, were it not for the unlawful dismissal, it was likely that the employment would have continued indefinitely. This approach was charted for his Honour by the decision in Gregory (at 425-426). Nevertheless, one of the things that would need to be weighed up in reaching a conclusion would be the possibility that the employment might have come to an end as the result of a lawful dismissal which was not harsh, unjust or unreasonable, such as it might if the company were to close its factory or engage in a policy of retrenchment of all or some of its staff."

The statement that "His Honour therefore had to consider the matter upon the basis that, were it not for the unlawful dismissal, it was likely that the employment would have continued indefinitely" is one that must be understood as specific to the situation of Mr Gorgevski, it having been held that his employment would have continued indefinitely but for the harsh, unjust or unreasonable application to him of the employer's "no smoking" policy.

1. The above discussion, concerning as it does the assessment of damages, pre-supposes that in the case at hand the applicant has suffered some damage by reason of the breach of the contract of service, so that there is damage to be assessed. Nevertheless, I think it is clear from these passages from the judgments, especially from the concluding sentence of the last cited passage, that if the employment would not have continued beyond a particular date even if the termination were not in breach of the contract of service, lost earnings beyond that date would not be caused by any breach of contract occasioned by the circumstances in which the employment was terminated. In the present case, taking the view most favourable to the applicants on the pleadings and evidence, it is possible that had there been longer consultation with the employees and the unions after consultation commenced on or about 31 October 1991, the terminations of the employment of the 124 employees effected by the decision of the ERA Board (effectively the employer's definite decision to proceed with the changes) may have been deferred for a few days, but as I have already said that does not help the applicants as they have already received payments over and above their strict contractual entitlements which compensates them for several weeks loss of pay. The pleadings and evidence fail to make any allegation, or provide any factual basis, upon which it could be held that even if the consultations and investigations which the applicants assert should have occurred, had occurred, the employment would have continued beyond the date to which they have already been compensated. There is therefore no basis on which it could be held that any damage has been caused by reason of the alleged breach or breaches of the Award conditions. The losses alleged by the applicants are the unfortunate result of their redundancy, not any breach of the Award conditions.

2. For these reasons I hold that the respondents have made out the first limb of their grounds given in support of the notice of motion, and, in exercise of the inherent jurisdiction of the Court, I rule that the claim for damages pleaded in para.27 of the Statement of Claim, insofar as it alleges loss resulting from the alleged breaches of contract constituted by the provisions of the Award, should be dismissed on the ground that there is no possibility that the claim could succeed on the evidence to be adduced by the applicants.

3. It is unnecessary therefore to decide the alternative limb of the respondent's grounds. That aspect of the respondent's contentions included the proposition that where the termination of employment which is the subject of complaint by an employee under cl.7(d)(vi) is a termination for the reason that the employee's position has become redundant, the Award by cl.45 fixes the maximum compensation which the employee can receive. This proposition gives rise to a difficult question of interpretation of the Award which was not fully argued by one of the parties. The relevant provisions of the Award are commonplace in other Awards, and the question is therefore one of general importance. In these circumstances the determination of that question is best left to a case where it is essential to decide it.

1. There is one other aspect of the applicants' case to which brief reference should be made.

2. The Statement of Claim pleads that the contracts of employment of each of the applicants was constituted in part by a document entitled Ranger Uranium Mines Pty Ltd 1987-1989 Agreement. The terms of this document provided the basis for an allegation in para.26 of the Statement of Claim that the termination of the employment of each applicant was in breach of contract as the termination "was effected otherwise than by natural attrition".

3. The 1987-1989 Agreement by its terms provided the respondent's workforce with a 4% wage increase offered under the Restructuring and Efficiency Principle of the National Wage Case. The Agreement identified certain proposals to effect change in work and management practices, and included a clause that:
   

"Any changes in numbers of employees as a result of this clause will be effected by way of natural attrition. No employee will be retrenched due to changes implemented as a result of this clause."

It is this clause which the pleading alleges was broken. The statement of the applicants' contentions of fact and law filed in accordance with a pre-trial direction do not identify this allegation as one of the contractual breaches said to be the cause of the applicants' loss. The opening of the applicants' case rather suggested that the 1987-1989 Agreement, and other statements allegedly made from time to time by officers of the respondent to the effect that reductions in the size of the workforce would be achieved by natural attrition, went only to the question whether the terminations of employment on 4 November 1991 were harsh, unjust or unreasonable. However counsel for the applicants, when asked, said that the wider claim pleaded in the Statement of Claim was not abandoned. It is therefore necessary to consider the 1987-1989 Agreement. When the Agreement is read in its entirety it is clear that it cannot assist the applicants as it is expressly provided that the Agreement, and Award variations made to give effect to it, are to operate from the first pay period on or after 1 June 1987 for a period of 2 years. That period had expired before the events relevant to the termination of the employment of the applicants occurred.

1. The ruling in respect of which these reasons are now given was one made in the course of the trial. I can now record that the trial did not proceed much beyond this ruling. Orders were then entered by consent dismissing the proceedings. The ruling was not incorporated into a formal order.

2. It must be emphasised that the ruling was made on the assumptions that the provisions of the Award were incorporated into the contract of service, and that there had been a breach of clauses 7(d)(vi), 44(b)(i) and 45(a)(i). Each of these matters were at all times denied by the respondent, and the assumptions were made solely for the purposes of considering the respondent's argument.