RUSSELL v THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE ARCHDIOCESE OF SYDNEY [2008] NSWCA 217

Reported Decision: 176 IR 82

New South Wales Court of Appeal

CITATION: RUSSELL v THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE ARCHDIOCESE OF SYDNEY [2008] NSWCA 217 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 5 and 6 May 2008

JUDGMENT DATE: 8 September 2008

JUDGMENT OF: Giles JA at 1; Basten JA at 2; Campbell JA at 73

DECISION: Appeal dismissed with costs.

CATCHWORDS: CHURCHES AND RELIGIOUS ASSOCIATIONS – internal investigation into sexual misconduct allegations in respect of children – whether denial of natural justice in investigation of complaints – whether procedural fairness required to effect valid dismissal - CONTRACTS – breach of contract – whether breach because of termination without reasonable notice – whether breach of implied term of good faith, mutual trust and confidence through conduct of investigation relating to sexual assault allegations in respect of children – whether absence of face-to-face interview with principal witness constituted breach of contract - CONTRACTS – oral employment contract – whether implied term of good faith, mutual trust and confidence – whether implied term extends to manner of dismissal and actual dismissal - COSTS – whether costs follow the event – appellant successful on some issues at trial, but not on appeal – where no application made to trial judge - DAMAGES – heads of damage – causation – remoteness – whether costs of unfair dismissal proceedings in Industrial Relations Commission recoverable – whether costs of hiring public relations consultant recoverable – whether damages available for the manner of a wrongful dismissal and distress – whether damages for injury to reputation, humiliation and injury to feelings recoverable –definition of injury to reputation – difference between damages for breach of contract and for tort – Industrial Relations Act 1996 (NSW) s 181(2)(c) - DAMAGES – mitigation – where mitigation costs higher than damages for loss flowing from breach – whether Industrial Relations Commission proceedings reasonable attempt at mitigation – whether proceedings directly related to breach of contract – whether hiring public relations consultant reasonable attempt at mitigation – Industrial Relations Act 1996 (NSW) s 181(2)(c) - EMPLOYMENT LAW – oral employment contract – terms of employment – whether implied term of good faith, mutual trust and confidence – content of implied term – whether implied term breached through constructive dismissal - EMPLOYMENT LAW – termination – differences between statutory relief for unfair dismissal and common law test for summary dismissal – proceedings before Industrial Relations Commission – whether termination of employment without reasonable notice – Child Protection (Prohibited Employment) Act 1998 (NSW) ss 6, 8 – Commission for Children and Young People Act 1998 (NSW) Part 7 - OMBUDSMAN – responsibilities – scope of mandate – monitoring steps taken in relation to sexual misconduct allegations in respect of children – Ombudsman Act 1974 (NSW) ss 25A, 25B, Part 3A - WORDS & PHRASES – "injury to reputation"