FEDERAL COURT OF AUSTRALIA Li v Edith Cowan University [2016] FCA 380 File number: WAD 147 of 2014 Judge: GILMOUR J Date of judgment: 19 April 2016 Legislation: Fair Work Act 2009 (Cth) ss 390, 394, 400, 54(1) Federal Court Act 1976 (Cth) s 31A(2) Federal Court Rules 2011 (Cth) rr 26.01(1)(a), 26.01(1)(c) Judiciary Act 1903 (Cth) s 39B Cases cited: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 Li v Edith Cowan University [2012] FWA 1887 Li v Edith Cowan University [2014] FWCFB 2857 Spencer v Commonwealth of Australia (2010) 241 CLR 118 Date of hearing: 4 December 2015 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 46 Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter Counsel for the First Respondent: Mr A Musikanth Solicitor for the First Respondent: Office of Legal Services, Edith Cowan University Counsel for the Second Respondent: The Second Respondent did not appear ORDERS WAD 147 of 2014 BETWEEN: DONGGUANG LI Applicant AND: EDITH COWAN UNIVERSITY First Respondent FAIR WORK COMMISSION Second Respondent JUDGE: GILMOUR J DATE OF ORDER: 19 aPRIL 2016 THE COURT ORDERS THAT: 1. The further amended originating application be dismissed. 2. The parties have liberty, within 14 days of this order, to apply to the Court on the question of costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT GILMOUR J: 1 The first respondent (University) applies for summary judgment on the grounds that: (a) the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding: r 26.01(1)(a) of the Federal Court Rules 2011 (Cth) ("Rules"); and (b) no reasonable cause of action is disclosed: r 26.01(1)(c) of the Rules. 2 The first respondent's written submissions set out the relevant statutory provisions and the relevant rule of this Court. These are well established and are not contentious. 3 Section 31A(2) of the Federal Court Act 1976 (Cth) empowers the Court to give judgment for a respondent in relation to the whole or any part of a proceeding if the Court is satisfied that the applicant has no reasonable prospect of successfully prosecuting the proceeding. 4 Section 31A authorises summary disposition of proceedings on various bases, including cases "in which the pleadings disclose no reasonable cause of action and their deficiency is incurable": Spencer v Commonwealth of Australia, (2010) 241 CLR 118, at [22] (per Hayne, Crennan, Kiefel and Bell JJ). 5 Rule 26.01 of the Rules, in turn, lists the circumstances in which one party may apply to the Court for an order that judgment be given against another. The circumstances include those the subject of the grounds relied upon by the respondent. 6 For the purposes of s 31A(2) a proceeding, or part of a proceeding, need not be hopeless or bound to fail: s 31A(3). 7 Nevertheless, the "exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence". Spencer at [24] (per French CJ and Gummow J) see also [60] (per Hayne, Crennan, Kiefel and Bell JJ). 8 The University relied upon the affidavit of Joanne Elizabeth Quinn sworn on 16 October 2015. 9 The applicant's tendered his own affidavit sworn on 6 November 2015. Background 10 The background is not contentious and is drawn from the University's written submissions. 11 The applicant was previously employed by the University as an Associate Professor and was dismissed from that employment on 11 January 2011. 12 The applicant subsequently applied to Fair Work Australia (FWA) for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (FW Act). 13 On 9 March 2012 a deputy president of FWA published a decision (Li v Edith Cowan University [2012] FWA 1887) in which he found, among other things, that: (a) there was a valid reason for the dismissal; (b) the dismissal was nonetheless unfair; (c) reinstatement was not an appropriate remedy; and (d) the applicant should receive an amount of compensation equal to two months' pay. 14 The applicant appealed against the FW decision. 15 On 19 May 2014, a Full Bench of the Fair Work Commission dismissed the applicant's appeal: Li v Edith Cowan University [2014] FWCFB 2857. 16 On 24 July 2014, the applicant filed an originating application for judicial review in this Court seeking to challenge the decision of the Full Bench. 17 On about 5 December 2014, the applicant filed an amended originating application along with a document entitled "Summary of Argument". The latter document set out the grounds relied upon by the applicant in support of the relief sought in the amended originating application. 18 On 16 March 2015, the applicant and the University entered into a Deed of Settlement and Release (Deed). 19 The Deed relevantly included provisions to the effect that: (a) the respondent be released from "any claims, liabilities or otherwise from events up to and including the time of the execution of this Deed"; (b) the Deed could be pleaded as a bar to any claim or cause commenced by the applicant arising out of the entire period of the applicant's employment with the University, and events up to and including the time of execution of the Deed; and (c) the respondent's right to plead that bar did not apply to the applicant's "appeal (sic) to the Federal Court (WAD No. 147/2014) as at the date of execution of this Deed save to the extent that the Deed may be relied upon to prevent any double recovery of compensation, loss or damage already provided for by [the] Deed". 20 On 1 April 2015, the applicant filed a further amended originating application and a statement of claim in this proceeding. The applicant's claims 21 The relief sought by the applicant against the University is as follows: (1) relief pursuant to s 39B of the Judiciary Act 1903 (Cth) in the nature of certiorari (s 39B relief): (2) damages for loss of salary and associated benefits said to be due to him as a result of an alleged failure by the University to comply with terms of an instrument which, according to the applicant, had formed part of the contract of employment between the parties (Contractual entitlements claim): (3) various other forms of damages allegedly suffered by him as a result of the University's alleged failure to comply with terms of that instrument (Miscellaneous contractual claims): (4) damages allegedly suffered by him in connection with the alleged publication of an image of the applicant on a website (CrimeNet publication claims): and (5) declaratory relief. Declaratory relief would follow only, if at all, should the applicant's various claims be established. (6) an order in the nature of certiorari quashing the orders made by the Full Bench on 19 May 2014. Section 39B relief 22 The applicant relies upon two grounds. 23 First, the applicant in his Further Amended Originating Application under Ground A asserts, in effect, that: (1) there was a "constructive failure" by the Full Bench to exercise jurisdiction in refusing the applicant permission to appeal under s 400(1) of the FW Act; and (2) that failure took the form of the Full Bench failing to consider "whether the learned Deputy President had erred" in various respects as follows: (a) By failing to give consideration or adequate consideration to the provisions of s 390 of the FW Act in refusing to order the reinstatement of the applicant; and (b) In refusing reinstatement: (i) by failing to consider that there was no evidence from the first respondent as to why, having regard to the nature of the applicant's responsibilities, the reinstatement of the applicant would be impracticable; and (ii) by basing his determination upon his own observation of witnesses rather than evidence; and (iii) by failing to give adequate reasons why he was satisfied that reinstatement, the primary remedy provided by the Act, was inappropriate in the circumstances; and (iv) when, on the evidence before him, he could not reasonably have been satisfied that reinstatement was inappropriate. (c) After refusing reinstatement and considering compensation, by determining that the applicant would have been dismissed even if there had been no breach of procedural fairness by the first respondent's Misconduct Committee when: (i) there was no evidence to support the determination; and in particular (ii) there was no evidence that the charge against the applicant of failing sufficiently to acknowledge the contribution of others to his research was serious misconduct that would have warranted his dismissal; and (iii) the applicant had acknowledged the contribution of Mr Huang in the five publications; and (iv) there was no evidence that such acknowledgment fell short of what was required in the circumstances. 24 Second, the applicant in his Further Amended Originating Application under Ground B asserts that the Full Bench "further erred" in holding that it was not in the public interest to grant the applicant permission to appeal although just what is the asserted error is neither obvious nor explained. 25 The applicant's written submissions, apart from setting out some background matters, did not engage at all with the relief sought in the Further Amended Originating Application. 26 Despite this I have considered the claims set out in the Further Amended Application, the reasons of the Full Bench and the detailed and accurate schedule provided by the University directed to each of the asserted errors of the Full Bench and articulated in the Further Amended Application. I have for convenience attached that schedule to these reasons. I am persuaded in light of all these considerations that it is not arguable that there was a constructive failure by the Full Bench to exercise its jurisdiction in refusing permission to appeal. Nothing in the decision of the Full Bench supports, even arguably, that the Full Bench misconceived its role, misunderstood the nature of its jurisdiction, misconceived its duty or failed to apply itself to the questions which s 400(1) of the FW Act prescribed: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [31]. 27 Accordingly for those reasons, I am satisfied that the applicant has no reasonable prospect of successfully prosecuting his claim for relief under s 39B. Contractual entitlements claim 28 The grounds for this claim under Prayer 4 of the Further Amended Originating Application, that the University pay the applicant's full salary and associated entitlements from the date of his purported dismissal, are found in para 48 read with sub-para 48.10 of the Statement of Claim. 29 The applicant's allegation is to the effect that: (a) Part B of a document entitled Australian Code for the Responsible Conduct of Research (Code) governed the investigation of complaints of serious research misconduct; (b) compliance with the Code by both parties became an implied term of the contract of employment between the parties; (c) the Code required complaints of serious research misconduct to be investigated following the appointment of an "external panel" that followed procedures set out in the Code; (d) the respondent failed to appoint such a panel, and the Misconduct Committee appointed by the respondent did not follow the procedures set out in the Code; (e) the respondent accordingly breached the applicant's contract of employment ; and (f) this caused the applicant loss and damage. 30 It is not in issue that the Code was published in 2007. 31 By its terms the Code is "a guide for responsible research conduct in Australia, providing a basic reference for the development of appropriate policies and procedures. It is written specifically for universities and other public sector research institutions. Compliance with this Code is a prerequisite for receipt of National Health and Medical Research Council and Australian Research Council funding". 32 It is also not in dispute that the Edith Cowan University Collective Academic Staff Union Collective Agreement 2009 (Collective Agreement) formed part of the contract of employment between the parties. 33 The Collective Agreement was approved under the FW Act on 24 February 2010, and in accordance with s 54(1) of the FW Act, operated with effect from 5 December 2009. 34 Clause 21 of the Collective Agreement sets out: (a) the procedure for the taking of disciplinary action relating to allegations of misconduct/serious misconduct by an employee covered by the Collective Agreement; (b) the composition of any Misconduct Committee charged with investigating the alleged misconduct or serious misconduct; and (c) the procedure to be adopted by any Misconduct Committee. 35 Clause 21.10 of the Collective Agreement prescribes that the Misconduct Committee shall consist of two University employees and a chairperson as agreed. It is self-evidently not an "external panel". 36 A term will not be implied into a contract if the proposed term contradicts any express term of the contract. 37 The Code contemplates in certain circumstances the appointment of an external panel to follow procedures set out in the Code to investigate complaints of serious misconduct. Such a provision would contradict the provision in cl 21 of the Collective Agreement. 38 Accordingly I find that the applicant has no reasonable prospect of successfully prosecuting the Contractual entitlements claim which would necessarily depend upon the implication of the term proposed by him. Miscellaneous contractual claims 39 The Miscellaneous contractual claims, and the grounds relied upon in support of them, are reflected in para 48 read with sub-para 48.9 and sub-paras 48.11 to 48.16 (inclusive) of the Statement of Claim. I observe that none of the prayers for relief in the further amended originating application seek relief in connection with them. 40 These claims were first introduced into materials filed in this Court on 1 April 2015, when they were incorporated into the Statement of Claim. This was after the date when the Deed was executed. The University, in its defence has raised a plea in bar, relying upon cl 3 (read with cl 4) of the Deed, in response to these claims. 41 It is evident that the Miscellaneous contractual claims would be found to be barred. Accordingly the applicant has no reasonable prospect of successfully prosecuting these further claims. CrimeNet publication claims 42 The CrimeNet publication claims, and the grounds relied upon in support of them, are reflected in paras 49 to 60 (inclusive) of the Statement of Claim. 43 These claims were also first introduced on 1 April 2015, when they were included in the Statement of Claim. Again none of the prayers for relief in the further amended originating application seek relief in connection with them. 44 Such claims would be found to be barred under cl 3 (read with cl 4) of the Deed, and the University's defence in that respect would be made out. 45 The applicant has no reasonable prospect of successfully prosecuting these claims. Conclusion 46 There will be summary judgment of dismissal for the University. I will give the parties liberty to apply, within 14 days, on the question of costs. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 19 April 2016