Paulson v State of New South Wales [2023] NSWDC 251

District Court New South Wales

Medium Neutral Citation: Paulson v State of New South Wales [2023] NSWDC 251 Hearing dates: 31 May 2023 Date of orders: 10 July 2023 Decision date: 10 July 2023 Jurisdiction: Civil Before: Acting Judge Ainslie-Wallace Decision: 1. Statement of Claim filed on 22 December 2022 is struck out 2. Grant leave to the Plaintiff to file an Amended Statement of Claim within 28 days of the publication of this order Catchwords: CONTRACTS — Breach of employment contract — Implied terms — Terms implied in fact — Terms implied in law — Necessity — Date of breach statute barred Legislation Cited: Industrial Relations Act 1996 Government Sector Employees Act 2013 Uniform Civil Procedure Rules Cases Cited: Realestate.com.au Pty Ltd v Hardiman [2022] HCA 39 BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Commonwealth Bank of Australia v Barker [2014] HCA 32 Paulson v Industrial Relations Secretary (Department of Justice) [2017] NSWIRComm 1037 Category: Procedural rulings Parties: State of NSW (Applicant) Craig Paulson (Respondent) Representation: Counsel: Michael Whitbread (Applicant)

Solicitors: Karen Smith, Crown Solicitor John Capsanis (Respondent) File Number(s): 2022/386075

Judgment 1. By a Statement of Claim filed on 22 December 2022, Craig Paulson sues the State of New South Wales for breach of an employment contract between him and the Department of Communities and Justice. 2. On 10 March 2023 the defendant filed a Notice of Motion seeking that the proceedings be summarily dismissed pursuant to rule 13.4(1) of the Uniform Civil Procedure Rules 2005 which says: If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: … (b) no reasonable cause of action is disclosed … The court may order that the proceedings be dismissed generally or in relation to the claim. 1. Before dealing with the application, it is helpful to set out some background to the action some of which is taken from the decision of Commissioner Murphy in the Industrial Relations Commission of NSW delivered on 7 July 2017, to give context to the issues raised. 2. The plaintiff began employment with the Department of Justice ("the Department") in about 2000 as an Aboriginal Client Service Specialist attached to Lismore Court. In 2006 he was seconded to another division of the department for 12 weeks and then took two years leave without pay. On his return to work in September 2008, the plaintiff worked as a trainee Sheriff's officer and after successfully completing training and probation became a Sheriff's Officer in a Children's Court in about 2010. 3. In March 2014 an internal investigation was launched to consider allegations of misconduct made against the plaintiff. That report found some of the alleged misconduct made out and others not. In the event, the plaintiff was dismissed from his employment on 20 October 2014. 4. The plaintiff took proceedings in the Anti-Discrimination Board of NSW and in NCAT challenging the termination of his employment. 5. The plaintiff commenced proceedings challenging his dismissal in the Industrial Relations Commission of NSW in November 2014. There, hearing of that application was delayed while the plaintiff agitated his claims in other courts. The matter was heard in the Industrial Relations Commission in March and May 2017 and a decision of Commissioner Murphy was delivered on 7 July 2017. The enquiry was whether the plaintiff's dismissal was harsh, unjust, or unreasonable and, if so, what remedy resulted. 6. The Commissioner considered of the allegations of misconduct found to be substantiated in the Department investigation and concluded some of them not to be made out however found some of them to be established and which constituted misconduct. 7. The Commissioner turned to the question of whether the plaintiff's dismissal based on the proven misconduct was "harsh, unreasonable, or unjust" in terms of ss 84 and 89 of the Industrial Relations Act 1996. The Commissioner found that the dismissal of the plaintiff was "… harsh in the sense that the punishment did not fit the crime, or put another way, was 'too harsh a consequence' for the applicant's misconduct." 8. Turning then to the question of whether reinstatement or re-employment of the plaintiff by the defendant was "impracticable", the Commissioner found that it would be "… extremely difficult, if not impossible, for a viable working relationship to be re-established…" between the plaintiff and his work supervisor and concluded that reinstatement or re-employment was not practicable. 9. The Commissioner concluded that having found the dismissal harsh but that reinstatement or re-employment not to be practicable, the plaintiff was awarded compensation based on 13 week's pay. 10. The plaintiff sought leave to appeal the Commissioner's decision to the Full Court of the Industrial Relations Commission. Leave was refused on 25 January 2018.