New South Wales Supreme Court CITATION : Curtin v University of New South Wales [2008] NSWSC 586 HEARING DATE(S) : 10 - 11 June 2008 JUDGMENT DATE : 13 June 2008 JUDGMENT OF : Malpass AsJ DECISION : Claims for relief pursuant to the Fair Trading Act 1987 (NSW), the Trade Practices Act 1974 (Cth) and the Contracts Review Act 1980 (NSW) dismissed; costs of the applications for summary dismissal reserved; plaintiff's notice of motion stood over generally with liberty to apply; exhibits returned. CATCHWORDS : COMMON LAW - summary dismissal - dismissal of statutory claims - in trade or commerce - limitation periods Contracts Review Act 1980 (NSW) LEGISLATION CITED : Fair Trading Act 1987 (NSW) Protected Disclosures Act 1994 (NSW) Trade Practices Act 1974 (Cth) CATEGORY : Principal judgment Airberg Pty Ltd v Cut Price Deli Pty Ltd [2001] FCA 1895 Baltic Shipping Co v Merchant (1994) 36 NSWLR 361 Barto v GPR Management Services Pty Ltd (1991) 33 FCR 389 Bleakley v Higgins [2006] NTSC 89 Bolton Gems Pty Ltd v Gregoire unreported, NSWSC, 10 November 1995 BC 9501839 Commercial Banking Co of Sydney Ltd v Pollard [1983] 1 NSWLR 74 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 CASES CITED : Duncan v Lipscombe Child Care Services Inc [2006] FAC 458 Hearn v O'Rourke (2002) 193 ALR 264 Hogan v Howard Finance Ltd (1987) ASC 55 - 594 Martin v Tasmania Development & Resources (1999) 163 ALR 79 Mulcahy v Hydro-Electric Commission (1998) 85 FCR 170 Northern Territory of Australia v Mengel (1995) 185 CLR 307 Snelling v John G Snelling Ltd [1973] QB 87 Stoelwinder v Southern Health Care Network (2000) 177 ALR 501 Village Building Company Ltd v Canberra International Airport Pty Ltd (2004) 139 FCR 330 Peter John Curtin (Plaintiff) University of New South Wales (First defendant) PARTIES : Newsouth Global (Second defendant) John Ingleson (Third defendant) Alan Bowen-James (Fourth defendant) Cognitive Systems Pty Ltd (Fifth defendant) FILE NUMBER(S) : SC 20342/07 P E King (Plaintiff) COUNSEL : A S Bell SC (1st, 2nd & 3rd defendants) G A Rich (4th & 5th defendants) Russell McLelland Brown Lawyers (Plaintiff) SOLICITORS : Sparke Helmore (1st, 2nd & 3rd defendants) McGlynn & Partners (4th & 5th defendants) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Associate Justice Malpass Friday 13 June 2008 20342/07 Peter John Curtin v Univeristy of New South Wales & Ors JUDGMENT 1 HIS HONOUR: Documentation executed by the plaintiff and the second defendant shows that the plaintiff was an employee of the first defendant as operations manager at its Educational Testing Centre ("ETC"). This employment was terminated and he accepted employment with the second defendant as services manager for a period of three years from 12 October 2001. 2 The second defendant undertook a workplace change process and advised the plaintiff that his position had been declared redundant. The plaintiff elected to take retrenchment and a Deed of Release dated 2 December 2003 was executed both by the plaintiff and the second defendant ("the Deed of Release"). It contains recitals which accord with what has been earlier mentioned. 3 Clause 3 of the Deed of Release is headed "Obligations of Mr Curtin". It provides, inter alia, that Mr Curtin: "(c) Releases and discharges the Company and the University from: (i) any rights, demands, claims, actions, suits, complaints or proceedings that either may now have, have had in the past or may either now or in the future have against the Company; (ii) anything related to the subject matter of this Deed." 4 An earlier provision (by clause (1)), provided a wide definition of "Claims". It forms part of the "Definitions" under the heading "Agreement". 5 Clause 2 thereof sets out the respective obligations of the second defendant and of the plaintiff. 6 Cause (5) thereof is headed "Warranties". It contains the following warranty from Mr Curtin: "5.1 (c) he had not made any promise, representation or inducement or been a party to any conduct material to him entering into this Deed other than as set out in this Deed." 7 On 12 October 2007, the plaintiff brought proceedings in this Court. The proceedings bring an attack against the Deed of Release founded upon, inter alia, provisions of the Fair Trading Act 1987 ("the FTA"), the Trade Practices Act 1974 ("the TPA") and the Contracts Review Act 1980 ("the CRA") and also seek damages pursuant to the provisions of the FTA and TPA as well as under the general law. There are five defendants. I shall now proceed with a closer analysis of the process. 8 A claim founded on contract is brought against both the first and second defendants. A breach of warranties and other terms are alleged. The claim commences at paragraph 12 of the process. This paragraph alleges, inter alia, the making of certain representations. 9 Paragraph 20 contains particulars of alleged coercion and undue pressure on or about 2 December 2003. 10 Paragraphs 24 – 26 of the process bring claims pursuant to the FTA and TPA (sections 51AA and 52). Misleading or deceptive conduct and unconscionable conduct is alleged. These paragraphs allege the making of representations (including certain of those made in paragraph 12) and unconscionable conduct. 11 Paragraph 27 of the process is as follows: "27. Further or alternatively the Plaintiff contends that the said Deed of Release should be set aside pursuant to the Contracts Review Act 1980 section 7 being a contract unjust in the circumstances at the date it was made. Particulars (a) The Plaintiff relies upon the facts and matters alleged in paragraph 24. (b) The Plaintiff relies upon the coercion and undue pressure put on the Plaintiff to resign or retire from his employment as alleged in the particulars in paragraph 20." 12 Paragraphs 27A – 30 bring what is also described as a further or alternative claim. It is one of alleged inducement to enter into the Deed of Release as a result of misrepresentations alleged in paragraph 24 and / the failure of the second defendant to disclose to the plaintiff that the real purpose of the restructure of the second defendant was the dismissal of the plaintiff. The relief sought is that of a declaration of voidness or an order refusing to enforce the Deed of Release. 13 The third defendant was the Deputy Vice-Chancellor of the first defendant and Chief Executive Officer of the second defendant. He is sued in his role as protected disclosures coordinator of the first defendant. 14 A number of causes of action are alleged against him. The first is one of negligence and involves, inter alia, allegations of breach of duty of care (see, inter alia, paragraphs 33 – 34 of the process) and what is said to be negligent misstatement (see paragraph 38 of the process). The second is that of misfeasance in public office (see paragraphs 40 – 42 of the process). The third is that of inducing breach of contract (see paragraphs 43A – 43D of the process). The final one is one of conspiracy (see paragraph 44A – 44B of the process). 15 The role of the other defendants is said to be as alleged in paragraph 6 of the process. It reads as follows: "6. In or about November 2001 the Fourth Defendant or alternatively the Fifth Defendant was provisionally appointed by the Third Defendant on behalf of the First and or Second Defendant as the general manager of the Educational Testing Centre of the University of New South Wales (herein after the ETC), and thereafter the general manager of the ETC." 16 Paragraph 3 also refers to the fourth defendant as a member of staff of the first defendant. 17 The case made against the other defendants is set forth in paragraphs 46 and following. The claims are said to allege interference in respect of the contractual arrangements made between the plaintiff and the first and / or second defendants and which induced breach. 18 Three notices of motion have been filed. One has been filed by the plaintiff. It seeks separate determination of questions concerning the scope and validity of the Deed of Release. The first, second and third defendants ("the three defendants") seeks alternative remedies in respect of the statement of claim: (either that it be summarily dismissed or that parts of it be struck out). 19 The fourth and fifth defendants ("the other defendants") bring a similar application. The hearing of these notices of motion commenced on 10 June 2008. 20 Shortly before the commencement of the hearing, the plaintiff served a proposed amended statement of claim on the defendants. The purpose of this document was said to be to address the alleged pleading deficiencies in the statement of claim. Leave was given to file the document in court. It is a weighty document extending to 33 pages. 21 The defendants then proceeded with the notices of motion for summary dismissal. It seemed to become common ground that these two notices of motion should be first heard and, if necessary to do so, the Court would then deal with the plaintiff's notice of motion. 22 In respect of the claims founded in contract, the first and second defendants look to the Deed of Release. In the case of the first defendant, it is said that there are two reasons why the claims against it must fail. Firstly, since 12 November 2001 the only employment contract has been between the plaintiff and the second defendant. Secondly, the first defendant is entitled to take the benefit of clause 3(c) of the Deed of Release (even though it was not a party to the Deed of Release). In support of the second argument, the three defendants rely on what was said in Snelling v John G Snelling Ltd [1973] QB 87 at 98 – 99, Airberg Pty Ltd v Cut Price Deli Pty Ltd [2001] FCA 1895 and Bleakley v Higgins [2006] NTSC 89 at [87]. 23 In the case of the second defendant, it is said that the claims must fail by reason of clause 3(c) of the Deed of Release. 24 In the case of the third defendant, it is said he (as an employee of the second defendant) is also entitled to the benefit of clause 3(c) of the Deed of Release. In putting this argument, the third defendant also looks to the authorities that have just been cited. 25 I now turn to the claims that rely on the TPA and the FTA. 26 It is first said that these claims are also covered by the Deed of Release. The second argument is that these claims cannot run because the alleged conduct cannot be characterised as being "in trade or commerce". In support of this second proposition, the three defendants rely on Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594. 27 What was said in Concrete Constructions has been followed by Heerey J in Martin v Tasmania Development & Resources (1999) 163 ALR 79 and Mulcahy v Hydro-Electric Commission (1998) 85 FCR 170 at 212 – 213. Further support for this approach may be found in Hearn v O'Rourke (2002) 193 ALR 264. 28 Competing views may be found in Barto v GPR Management Services Pty Ltd (1991) 33 FCR 389 at 395 and in Stoelwinder v Southern Health Care Network (2000) 177 ALR 501 at [6]. 29 In Duncan v Lipscombe Child Care Services Inc [2006] FCA 458, Heerey J referred to both Barto and Stoelwinder but adhered to the approach he had taken in Martin and Mulcahy. 30 The considerations were also touched upon in Village Building Company Ltd v Canberra International Airport Pty Ltd (2004) 139 FCR 330. 31 In Concrete Constructions, the Court was considering the phrase "in trade or commerce" as it appears in s 52 of the TPA (s 51AA was introduced as a consequence of this decision). Observations were made by the majority at pp 602 – 605. It was said that the phrase has a restrictive operation. It was observed that there were two alternative constructions available. The majority came to prefer the narrower (the phrase can be construed as referring only to conduct which is itself an element of activities or transactions which of their nature bear a trading or commercial character). 32 At p 604, the majority observed as follows: "What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those whose interests it represents or is seeking to promote) has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character. Such conduct includes, of course, promotional activities in relation to, or for the purposes of, the supply of goods or services to actual or potential consumers, be they identified persons or merely an unidentifiable section of the public." It illustrated these observations by the provision of examples 33 In that case, the Court was concerned with a communication that passed between two workmen (instructions given by a foreman to another employee). It was treated as an internal communication by one employee to another and the conduct did not constitute a contravention of s 52. 34 I now move to the claims that rely on the CRA. Again, there are two reasons advanced for the inevitable failure of these claims. 35 First, the claims have not been brought within the temporal prescriptions of s 16. It is also said that the claims fall outside the scope of the CRA. Section 6(2) precludes the granting of any relief to a person where "the contract was entered into in the course of or for the purpose of a trade, business or profession carried on by the person". It is said that an agreement which brings about an end of a person's contract of employment and making provisions for any rights and obligations which may survive its termination would fall within s 6(2). 36 The claim sought to be advanced in paragraphs 27A – 30 was not addressed by the other parties in the written submissions and the supplementary oral submissions made in chief. I shall return to these matters in due course. 37 It is said that the claims brought against the third defendant must also fail by reason of the Deed of Release. Additional reasons for failure were also advanced. 38 In the case of the claim for breach of duty, it is said that it is an abuse of process and bound to fail. For present purposes, it is unnecessary to go into the detail of what is said in support of these matters. In the case of the claim of alleged misconduct in public office, it is said that this must fail because all elements of the tort of misfeasance in public office cannot be made out. The elements were identified by Deane J in Northern Territory of Australia v Mengel (1995) 185 CLR 307. Briefly, it is said that the third defendant was not a public officer and that what was allegedly done was not performed in the purported discharge of public duties. It is said that what was done arises from a purely private relationship (a contractual relationship between an employer and employee). 39 The remaining claims were also challenged on a pleading basis (that they were embarrassing). The view is taken that these problems may have been addressed by the amendments put forward in the amended statement of claim. Accordingly, those arguments are not presently pressed. 40 The other defendants adopt what has been said on behalf of the three defendants. The pleading arguments are no longer pressed. 41 In response, the plaintiff originally provided a brief written outline. This writing was supported by lengthy oral submissions. 42 Largely, what was dwelt upon was the inappropriateness of the granting of summary dismissal in the circumstances of the present case and the discretionary aspects of the remedy. The thrust is that there remains significant unresolved questions of law and fact incapable of determination at an interlocutory hearing. 43 The oral submissions made on behalf of the plaintiff continued into Wednesday 11 June 2008. On that day, counsel handed up detailed written submissions of considerable length. These written submissions were embodied in a document headed "Outline – Oral Submissions of Plaintiff" ("the Outline"). 44 I shall briefly mention certain of the specific submissions that were made in respect of the statutory claims. 45 In the case of the FTA and TPA, the submissions are to be found in paragraphs 6 – 9 of the Outline. It was stressed that the process alleged that the relevant conduct occurred in trade or commerce. Attention was drawn to the particulars provided in the process and to the allegation that the termination of employment took place in the course of the outsourcing of work to Pearsons. Also, it was sought to draw a distinction between the meaning to be attributed to the phrase in the respective contexts of s 51AA and s 52 46 In the case of the CRA, the submissions are to be found in paragraph 9 of the Outline. The paragraph contains, inter alia, the following: "9. The CRA case for dismissal is likewise supportable. As for the limitation point either section 16(b) for (c) applies. No 'obligation under' the DOR has yet arisen, as no plea in bar has been pleaded as contemplated by clause 3(f) of the DOR, or alternatively time commenced when the NOMs for a dismissal were filed or has not yet commenced to run as no cross claim for a stay has been filed by the second defendant." 47 The court was thereafter referred to a number of authorities including Bolton Gems Pty Ltd v Gregoire unreported, NSWSC, 16 November 1995 BC9501839, Baltic Shipping Co v Merchant (1994) 36 NSWLR 361 and Commercial Banking Co of Sydney Ltd v Pollard [1983] 1 NSWLR 74. 48 In submissions in reply, counsel for the defendants, with some justification, complained of ambush. Directions for submissions had been made earlier in the year. The plaintiff had not complied with the directions and offered no explanation for non-compliance. At the commencement of the hearing, the only written submissions relevant to the summary dismissal application that had been provided by the plaintiff was the short written document that has been earlier mentioned. Apart from the belated submissions, the defendants also had to meet at short notice the amended statement of claim. This document introduced many changes (including the addition of paragraph 27A and the deletion of the words "as if he were the employer of the plaintiff" from paragraph 34). The belated introduction of paragraph 27A had a significant impact on the summary dismissal application. 49 Paragraph 27A raised what has been described as a claim for equitable recision. Because of its belated introduction, it was not and could not be dealt with in the earlier written submissions made on behalf of the defendants prior to the making of their replies. When oral submissions were being made this paragraph had been erroneously perceived as part of the claim for statutory relief. 50 In reply, both defendants conceded that this claim for equitable recision could not be summarily dismissed. This concession had the consequence that submissions on construction of the Deed of Release lost significance for the purpose of the application and the claims founded on contact could not be summarily dismissed. 51 Perhaps I should add that the Deed of Release may have its problems. In any event, it seems to me that in the circumstances of this case the task of construction is best performed in the context of a trial when the court has the benefit of all the relevant evidence. 52 The defendants maintained their stance that the statutory claims for relief should be summarily dismissed. An altered position was adopted in relation to the claim for misfeasance in public office. 53 Summary relief is a discretionary remedy. The authorities have established that it is relief that should only be granted in what might be described as clear cases. The onus rests with the party seeking the relief. 54 In the case of the FTA and the TPA, I do not accept the submissions made on behalf of the plaintiff and I make the further observations set forth in this paragraph. In applications for summary relief, the moving party accepts as being true allegations of fact made in a pleading. In the present case, a mere allegation that the relevant conduct took place in trade or commerce does not assist the plaintiff. The particulars relied on to support that allegation cannot make it out. In my view, the involvement of the outsourcing does not change the character of what is relied on. The particulars merely look to an internal matter of what passed between the plaintiff and the defendants concerning the plaintiff's employment. In my view, binding authority demonstrates that such a factual context cannot be characterised as conduct that takes place in the course of trade or commerce. It follows from what has been earlier said that I do not accept the argument that s 51AA should be given a broader and different construction. Accordingly, I consider that the FTA and TPA claims should be summarily dismissed. 55 I do not accept the submissions made by the plaintiff concerning s 16 of the CRA and I make the further observations set forth in this paragraph. The particulars set forth in paragraph 27 make it clear that the plaintiff relies on what took place prior to the execution of the Deed of Release. The claim brings a challenge to the validity of the Deed of Release. In my view it does not fall within either (b) or (c). In such circumstances, the claim in these proceedings has clearly been brought well out of time. I do not consider that the authorities relied on by the plaintiff afford him any assistance in this matter. Perhaps I should make specific comment as to one of those authorities. The observations made in Pollard were the subject of subsequent adverse comment by the Court of Appeal in Hogan v Howard Finance Ltd (1987) ASC 55 – 594. Accordingly, I am satisfied, for these reasons alone, that the claim made pursuant to the CRA should be summarily dismissed. 56 In the circumstances, it is unnecessary to address the second of the two arguments advanced in respect of this matter by the defendants. 57 There may be pleading issues concerning the negligence claim. If that be the case, these can be later dealt with, if necessary in a subsequent application. 58 Paragraph 40 alleges that the third defendant was a public officer holding public office. For the purposes of this application, the defendants have accepted the truth of allegations made in the process. Save to the extent that the conduct of the third defendant involved the Protected Disclosures Act 1994 (see paragraph 36), they maintained their stance that he was not involved in the exercise of public powers (what he was required to do in terms of university policies and codes of conduct did not fall within that category). In my view, there is force in that approach. 59 Rather than attempt to deal with this matter in some way by summary dismissal, it seems to me that it is better handled by way of amendment of pleading. 60 Save as to what follows from what has been earlier said, I do not consider that the onus has been otherwise discharged. 61 The claims for relief made pursuant to the Fair Trading Act 1987, the Trade Practices Act 1974 and the Contracts Review Act 1980 are dismissed. The costs of the applications for summary dismissal are reserved. The plaintiff's Notice of Motion is stood over generally with liberty to apply. The exhibits may be returned. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.