Walker v Government Service of New South Wales State Transit Authority Division

[2017] NSWSC 1528

Supreme Court

New South Wales

Medium Neutral Citation:	Walker v Government Service of New South Wales State Transit Authority Division [2017] NSWSC 1528
Hearing dates:	7 November 2017
Date of orders:	14 November 2017
Decision date:	14 November 2017
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	Proceedings dismissed with costs.
Catchwords:	SUMMARY DISMISSAL – proceedings dismissed pursuant to UCPR 13.4 – where plaintiff’s statement of claim does not articulate a reasonable cause of action known to the law – where defendants have demonstrated that the case against them is so obviously untenable or manifestly groundless as to be utterly hopeless – where plaintiff has no reasonable prospect of establishing any cause of action against each defendant
Legislation Cited:	Independent Commission Against Corruption Act 1988 Transport Administration Act 1988 Uniform Civil Procedure Rules 2005
Cases Cited:	Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 Attorney-General v Wentworth (1988) 14 NSWLR 481 Byrne and Frew v Australian Airlines Limited (1995) 185 CLR 410; [1995] HCA 24 Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; [1983] HCA 25 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Webster v Lampard (1993) 177 CLR 602; [1993] HCA 57
Category:	Principal judgment
Parties:	Craig Walker (Plaintiff) Government Service of New South Wales State Transit Authority (First Defendant) Roads and Maritime Services (Second Defendant) Independent Commission Against Corruption (Third Defendant) Department of Premier and Cabinet (Fourth Defendant)
Representation:	Counsel: G F Mahony (Defendant)   Solicitors: Lea Armstrong, Crown Solicitor (Defendant)
File Number(s):	2016/367380
Publication restriction:	Nil

Judgment

1. HIS HONOUR: By his statement of claim filed on 7 December 2016, Craig Walker pleads his causes of action against the four defendants in the following terms:

“PLEADINGS AND PARTICULARS

1. That the STA broke fatigue regulations therefore breaching employment contract which resulted in bullying and harassment. 2. The RMS covered up the alleged breaches of fatigue that was reported to them by the plaintiff. 3. ICAC refused to investigate the breaches of fatigue, and then reported to STA that the plaintiff had made a complaint which resulted in the plaintiff being bullied and harassed in the workplace, which was also reported to ICAC. 4. The plaintiff then contacted the Office of the Investigator of ICAC about the conduct of its officers and the commission, and its failure to investigate the allegations brought forward by the plaintiff. They also refused to bring in a key witness as supplied by the plaintiff.”

2. By their notice of motion filed on 14 July 2017, the defendants all seek the following orders:

1. The proceedings be summarily dismissed pursuant to UCPR 13.4 in their entirety against each of the defendants.

2. In the alternative, the statement of claim filed 7 December 2016 be struck out in its entirety pursuant to UCPR 14.28.

3. Costs.

3. For the reasons that follow, I consider that the proceedings should be dismissed with costs.

Background

4. Mr Walker was formerly employed by the State Transit Authority as a bus operator. He commenced employment in that capacity on 16 September 2009.

5. On 5 January 2015, Mr Walker was involved in an incident with a passenger relating to a dispute about payment of a fare. The STA received a complaint from the passenger and an investigation into the complaint was commenced. On 7 January 2015, Mr Walker was issued with a Notice of Summary Suspension. On 29 January 2015, Mr Walker was issued with a Form E1, or what amounts to an offer to explain the circumstances of the incident that led to his summary suspension. On 24 March 2015, Mr Walker was issued with a letter containing what was referred to as “a Final Warning”. He was advised that his performance would be reviewed monthly for a period of not less than six months by the Assistant Depot Manager.

6. On 27 August 2015, Mr Walker wrote a letter in which he raised an allegation of corrupt conduct by an employee of the STA. The allegation was investigated by the STA. By letter to him dated 10 November 2015, Mr Walker was advised by NSW Government Transport State Transit that, following inquiries undertaken in response to his allegation, it had been concluded that there was no evidence to support it.

7. On 13 February 2016, Mr Walker was operating a 380 bus service from North Bondi to Circular Quay, during the course of which an incident occurred causing injury to a passenger and damage to the bus. It was alleged that Mr Walker braked suddenly and without cause with the result that the passenger was thrown forward, striking the front window of the bus with damage to the window and injuries to the passenger requiring hospitalisation. The matter was investigated by the STA, including the taking of statements from passengers on the bus. By Notice of Punishment dated 3 March 2016, Mr Walker was dismissed from his employment.

8. Thereafter, on 11 March 2016, Mr Walker appealed against his dismissal to the Industrial Relations Commission of New South Wales, contending that it was harsh, unreasonable or unjust. Resolution of the dispute was not achieved at mediation. However, on 31 March 2016, Mr Walker discontinued those proceedings.

9. The present proceedings remain on foot.

10. In response to a request for particulars of his claim from the defendants, Mr Walker provided a letter dated 27 April 2017 to which was attached three pages of information. Doing the best I can, and with the benefit of Mr Walker’s discussion with me in court on 7 November 2017, it appears that the origin of Mr Walker’s complaints is his assertion that the STA failed to enforce workplace regulations covering bus operators inasmuch as it required him to drive more hours in a 24 hour period than was permitted. Mr Walker describes this as “breaches of fatigue”. In the events that occurred, Mr Walker says that he was rostered to drive a shift approximately 11 hours and 45 minutes after he had completed his last shift, when the applicable regulations made it clear that he should have had no less than 12 hours without driving. Mr Walker perceives that his complaint about this was not taken seriously by the STA and that no action was taken. Moreover, Mr Walker considers that the STA thereafter treated him unfairly for making this complaint and that he has since then become the victim of bullying and harassment in the workplace. Mr Walker agreed with my suggestion that he sees himself in effect as a whistle-blower who has been victimised for doing no more than drawing an important matter of workplace safety to the attention of his employer. In his statement of claim, Mr Walker seeks to characterise this as a breach of his contract of employment by the STA.

11. Although it is nowhere articulated in terms, I rather glean from Mr Walker’s submissions that the incidents in his bus that led respectively to his suspension and ultimately to his dismissal were the result of his frustration arising out of the way he considered his complaints about breaches of fatigue had been handled. Mr Walker struck me, in the limited setting in which I was able to observe him, as a person who has a fairly rigid and unbending approach to rules and regulations. He is not to be criticised for this. By way of example, Mr Walker described as “outrageous” the fact that a sworn affidavit filed and read by the defendants on this application typographically misstated the date upon which something is said to have occurred. I rather suspect that Mr Walker’s interactions with the passenger over an unpaid fare were the result of his view that there was only one correct outcome when the passenger had not paid a fare, which was for the passenger to leave the bus. Because my perceptions are no more than that, it is unnecessary and possibly inappropriate further to expand upon them.

Consideration – UCPR 14.28

12. I have no doubt that the defendants are entitled to the relief that they seek pursuant to UCPR 14.28. The statement of claim is not in a proper form. It does not articulate or disclose a reasonable cause of action known to the law. Even accepting for the purposes of the argument that requiring Mr Walker to work within 12 hours of his previous shift amounted to a breach of his contract of employment, the case pleaded in the statement of claim does not clarify how the alleged consequences of the breach, said to be subsequent bullying and harassment of Mr Walker caused by his decision to report it, could sound in loss or damage to him. So understood, it is not apparent what the cause of action is said to be.

13. The so-called pleading against the remaining three defendants is even more obscure. It is simply not possible to understand what case against any of these defendants Mr Walker seeks to maintain. It is tolerably clear that he complains that Roads and Maritime Services “covered up” the alleged breaches of fatigue that he says he reported in the way discussed earlier. It is entirely unclear how or in what legal context this generates the existence of a right to claim damages as a result.

14. Mr Walker’s complaints against ICAC and the Office of the Investigator of ICAC are also difficult to comprehend. Mr Walker does not make plain, if it could ever be made plain, how a failure by a statutory investigative body, or an office with oversight and supervision of that body, could give rise to a cause of action known to the law. Certainly for present purposes, the pleading does not assist in this regard and is liable to be struck out.

15. The same applies to the case “pleaded” against the fourth defendant. Indeed, that defendant is not even referred to in Mr Walker’s particulars of claim.

16. In my opinion, if I were not otherwise of the view that the proceedings should be dismissed, I would order that the statement of claim be struck out. It discloses no reasonable cause of action against any of the defendants. It has in such circumstances an unambiguous tendency to cause prejudice, embarrassment and delay. It is also an abuse of the process of the Court.

Consideration – UCPR 13.4

General principles

17. The defendants are required to demonstrate that the case against them is “so obviously untenable or manifestly groundless as to be utterly hopeless”: Attorney-General v Wentworth (1988) 14 NSWLR 481 at 481. Various other judicial and academic formulations to similar effect do not derogate from that proposition.

18. The three main principles to be applied are as follows:

1. The court’s discretion to order summary dismissal is one that must be exercised with “exceptional caution”: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 at 129.

2. A party is ordinarily to be permitted the opportunity to place his or her case before the court in the customary way, and after taking advantage of the usual interlocutory processes. For a summary dismissal to occur there needs to be a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57].

3. The discretion should only be exercised if it is clear that there is no real question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; [1983] HCA 25 at 99; Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1 at 91; Webster v Lampard (1993) 177 CLR 602; [1993] HCA 57.

19. Mr Walker, who was not legally represented, did not suggest that these principles were wrong or not theoretically applicable to this case. I take them to be settled and unchallenged for present purposes.

The claim against the STA

20. As previously discussed, Mr Walker has not clearly or adequately particularised the alleged breach of the contract of employment to which the statement of claim refers. Nothing provided by Mr Walker assists the STA in knowing what the claim is or in formulating a response to it. Mr Walker’s particulars do, however, make it clear that his real complaint is that he was “targeted” and “suspended twice and reinstated as the issues raised were unfounded”.

21. As the STA contends, the facts of Mr Walker’s suspension and termination are not matters for this Court to determine. In particular, they are not pleaded in the statement of claim. Mr Walker commenced proceedings in the proper forum and sought to challenge his termination. Those proceedings in the Industrial Relations Commission were discontinued by Mr Walker. It does not follow that he is or now remains entitled to damages in this Court as a consequence of that termination.

22. With respect to the alleged breach of the so-called “fatigue regulations”, it is not clear whether Mr Walker is relying upon a section of the award under which he was employed, or a regulation passed by Parliament, or a condition of his employment. It is unclear how any of these breaches would, or could, give rise to a claim for damages in any event; see Byrne and Frew v Australian Airlines Limited (1995) 185 CLR 410; [1995] HCA 24 at [110]:

“[110]    If the statute does not expressly confer on the Executive a power by regulation to create an action in damages at the suit of any person injured by a breach of the substantive provisions of the regulations, it must be difficult to construe the statute and the delegated legislation as impliedly bringing about that result. This must be so, perhaps a fortiori, where the silent statute operates upon an award made by an arbitral body established by the statute.”

23. In my opinion, Mr Walker’s claim, in so far as it purports to claim damages against the STA for breach of the “fatigue regulation”, whether as a condition of the award, a regulation or a term of the contract of employment, will fail. It does not give rise to a triable issue.

The claim against Roads and Maritime Services

24. Mr Walker alleges that the RMS “covered up the alleged breaches of fatigue that [were] reported to them by [Mr Walker]”. Mr Walker expanded upon this in response to a request for particulars, saying that “the RMS failed to investigate breaches of fatigue, in accordance with the National Heavy Vehicle Regulation” after reports made by him about such breaches.

25. It is unclear what, if anything, flows from this alleged failure. The RMS is a statutory corporation constituted by s 46 of the Transport Administration Act 1988 and a New South Wales government agency. Its functions include matters relating to the safe operation of buses such as monitoring the performance of transport authorities in connection with the exercise of their functions relating to the such services and the compliance by transport authorities with any safety management systems required to be implemented by them under any other Act or law or conditions of accreditation: see s 52B(1) of that Act.

26. Even if it is accepted, for the purposes of this application, that compliance with fatigue regulations by the STA is a matter that relates to the safe operation of buses, there appears to be no obligation upon the RMS to investigate specific alleged failures raised by members of the public or employees of the transport authorities. The duty imposed upon the RMS is to monitor compliance. I do not accept that a failure to follow up upon or properly to investigate a complaint sounds in a cause of action at the suit of an individual with no other recognised legal standing, and certainly not one said to sound in a claim for damages.

27. Mr Walker does not frame his action as a claim for an order in the nature of mandamus. Even if it had been, a failure by the RMS to perform a function imposed by statute could not sound in damages in favour of a plaintiff in such proceedings. A claim for compensation for unlawful administrative action requires the formulation of a cause of action in either tort or contract. Mr Walker makes no such claim against the RMS.

28. It follows in my opinion that Mr Walker has no reasonable prospect of establishing any cause of action against the RMS.

The claim against ICAC

29. The Independent Commission Against Corruption is a statutory body constituted by the Independent Commission Against Corruption Act 1988.

30. Section 10(1) of that Act provides that any person may make a complaint to the Commission about a matter that concerns or may concern corrupt conduct. Section 10(2) provides that the “Commission may investigate a complaint or decide that a complaint need not be investigated”. Similarly, s 20(1) provides that the “Commission may conduct an investigation on its own initiative, on a complaint made to it, on a report made to it or on a reference made to it”. The Commission is not mandated to investigate each or every complaint that it receives and may determine whether to investigate a particular complaint or not, as the case may be. It follows that no cause of action lies against the Commission for not investigating a complaint.

The claim against ICAC Inspector

31. The Inspector of ICAC is an independent statutory officer appointed under the ICAC Act. The principal functions are set out in s 57B of the Act and are largely related to oversight. The Inspector’s powers are prescribed by s 57C of the Act. Relevantly, the Inspector “may investigate any aspect of the Commission’s operations or any conduct of officers of the Commission” and “may investigate and assess complaints about the Commission or officers of the Commission”. There is no power conferred on the Inspector to deal with persons other than ICAC officers and no power to review decisions of ICAC not to investigate a complaint.

32. It follows that Mr Walker has no cause of action against the Inspector that could give rise to a claim in damages.

The claim against Department of Premier and Cabinet

33. A department of the executive arm of government is not a legal entity that can be sued or against which proceedings for damages can be brought.

34. It follows that Mr Walker has no cause of action against the Department.

Conclusion and orders

35. In my opinion there is no utility in permitting Mr Walker to replead his case. No viable cause of action against any person or body can be identified. The claims, as pleaded, are manifestly hopeless and are doomed to fail at the threshold.

36. In these circumstances I order that the proceedings should be dismissed with costs.

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Decision last updated: 14 November 2017