Kimpton v Minister for Education of Victoria [1996] IRCA 104

DECISION NO: 104/96 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No VI 95/5420 B E T W E E N : KIMPTON and Others Applicant AND MINISTER FOR EDUCATION OF VICTORIA Respondent JUDGE: North J PLACE: Melbourne DATE: 22 February 1996 EX TEMPORE REASONS FOR JUDGMENT Before the court is a motion under O.20, r.2(1)(a) and (b) of the Rules of the Court to dismiss an application as disclosing no cause of action or, alternatively, on the basis that the application is frivolous and/or vexatious. Each of the applicants is a teacher at the Churchill Primary School employed by the respondent. The application is brought under s.431 of the Industrial Relations Act 1988 ("the Act") for an injunction to restrain a contravention of the Act. On 29 June 1995, the Director of School Education sent to each of the applicants a letter signed by John Roberts, the General Manager, Schools, seeking answers to a number of questions in the course of an investigation brought under s.68(a) of the Teaching Service Act 1981. The investigation related to the involvement of the applicants in the handing out of certain leaflets critical of the respondent. The applicants allege that the leaflets were handed out as part of an industrial campaign to improve the conditions of employment of teachers. The relief sought in the application is an injunction to restrain the respondent from requiring the applicants to respond to the letter signed by Mr Roberts. The applicants allege that the requirement to respond to the letter constitutes an injury in their employment or an alteration of their position to their prejudice in the terms of s.334(1)(g) and s.334A(2) of the Act. These sections provide: "334 (1) An employer shall not dismiss an employee, injure an employee in his or her employment, or alter the position of an employee to the employee's prejudice, because the employee: ...... (g) being a member of an organisation that is seeking better industrial conditions, is dissatisfied with his or her conditions;" "334A (2) An employer must not dismiss an employee, injure an employee in his or her employment, or alter the position of an employee to the employee's prejudice, merely because the employee has engaged, or is proposing to engage, in industrial action in relation to an industrial dispute that has been notified to the Commission or that the Commission has found to exist." The appropriate test on a motion under O.20 r.2 is set out in the oft quoted passage from the judgment of Chief Justice Barwick in General Steel Industries Incorporated v The Commissioner for Railways, New South Wales (1964) 112 CLR 125 at 129 where his Honour said: "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 it 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." Mr Justice Dixon, as he then was, summed up a number of authorities in Dey v The Victorian Railway Commissioners (1948-49) 78 CLR 62 at 91, as follows: "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. The fact that a transaction is intricate may not disentitle the court to examine a case of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an amount of abuse of process or is vexatious. But once it appears that there is a real question to be determined, whether of fact or law, and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of the process." Dr Jessup QC, who appeared with Mr Giudice for the respondent, contended that the requirement to respond to Mr Robert's letter could not amount to injury of the teachers in their employment or an alteration in their position to their prejudice. He argued that the chance that disciplinary proceedings would be initiated after the investigation was a potential, not an actual injury or prejudicial alteration. If no disciplinary action were taken consequent upon the investigation, no injury or prejudicial alteration would have occurred. He contended that the requirement to participate in the investigation did not of itself amount to injury or prejudicial alteration. Mr Hinkley of counsel, who appeared for the applicants, contended that there were arguments open to his clients that the requirement to participate in the investigation in itself amounted to injury or prejudicial alteration. He contended that the investigation was part of a disciplinary scheme and that the inter-connection between the investigation and the subsequent procedures was so close that the requirement to participate in the investigation constituted a relevant injury or prejudicial alteration by reference to the disciplinary procedures. He also contended that there was relevant prejudicial alteration in the disappointment of the expectation among teachers that no disciplinary proceedings would be taken for engaging in industrial action. He further contended that the evidence of teachers' reduced ability to participate or engage in teaching functions as a result of the institution of the investigation indicated a relevant injury for the purposes of the sections. Both parties took me to some relevant authorities, but no case has considered the circumstances of a case such as the present. In Blair v Australian Motor Industries Ltd (1982) 61 FLR 283, Evatt J held that a warning given to an employee which may have rendered the employee more vulnerable to dismissal was not a relevant injury or prejudicial alteration. No guidance is given in the decision as to the reason for this conclusion. In Childs v Metropolitan Transport Trust (1981) 29 AILR 24 at 25, Smithers J regarded the reduction in status in the view of fellow employees stemming from the service of a notice of demotion on an employee as an alteration in the position of that employee to his prejudice. This was a decision under the predecessor of the provisions now under consideration. These two cases are the most useful of the cases to which I was referred. They do not, however, determine the issue. Blair tends in favour of the respondent's argument and Childs tends against the respondent's argument. I do not regard it as hopeless or untenable to contend that the requirement to participate in the investigatory process may amount to a relevant injury or prejudicial alteration. This is not to say that there is not force in the arguments put by Dr Jessup. Those arguments should, however, be resolved at the trial of the proceeding when the matter can be determined after comprehensive argument and in the light of all the evidence available at the trial. Deponents of affidavits may be cross-examined or further evidence may be called as to the way the disciplinary process works so as to allow the court to determine the impact of the participation in the process on the applicants. For those reasons I would dismiss the motion. Consequently the order of the Court will be that the motion, notice of which was filed on 5 February 1996, be dismissed. I certify that this and the preceding five (5) pages are a true copy of the reasons for judgment of his Honour Justice North. Associate: Dated: Solicitors for the applicant: Maurice Blackburn & Co Counsel for the applicant: Mr R. Hinkley Solicitors for the respondent: Minter Ellison Counsel for the respondent: Dr Jessup QC and Mr Giudice Date of hearing: 22 February 1996 Date of judgment: 22 February 1996