Swiegers v Commonwealth Scientific and Industrial Research Organisation (No 2) [2016] NSWDC 3

District Court New South Wales

Medium Neutral Citation: Swiegers v Commonwealth Scientific and Industrial Research Organisation (No 2) [2016] NSWDC 3 Date of orders: 08 February 2016 Decision date: 08 February 2016 Jurisdiction: Civil Before: Justice Price, Chief Judge Decision: No damages awarded Catchwords: CONTRACT – termination of employment contract – assessment of damages Cases Cited: Chand v Commonwealth Bank of Australia [2015] NSWCA 181 Clark v Macourt [2013] HCA 56; (2013) 253 CLR 1 Scott v Commonwealth (1982) 41 ALR 498 Swiegers v Commonwealth Scientific and Industrial Research Organisation [2015] NSWDC 298 Wolfenden v International Theme Park Pty Ltd (t/as Wonderland) [2008] NSWCA 78 Category: Principal judgment Parties: Gerhard Frederick Swiegers (Plaintiff) Commonwealth Scientific and Industrial Research Organisation (Defendant) Representation: Counsel: M Gibian (Plaintiff) J Bourke QC and R Sweet (Defendant)

Solicitors: Colquhoun Murphy Lawyers (Plaintiff) Norton Rose Fulbright (Defendant) File Number(s): 2013/137442

Judgment 1. His Honour: Although the plaintiff was not successful in Swiegers v Commonwealth Scientific and Industrial Research Organisation [2015] NSWDC 298 ('Swiegers (No 1)'), the court is obliged to assess damages: Wolfenden v International Theme Park Pty Ltd (t/as Wonderland) [2008] NSWCA 78 at [6]. The onus is on the plaintiff to establish his loss on the balance of probabilities. An assessment of damages in this case (if the plaintiff had succeeded for wrongful termination of his employment contract with the Commonwealth Scientific and Industrial Research Organisation ('CSIRO')) involves an attempt to place him in the same position he would have been had the contract been properly performed. As Hayne J observed in Clark v Macourt [2013] HCA 56; (2013) 253 CLR 1 at [10], the proper measure of loss is "the loss of the value of what the promisee would have received if the promise had been performed." 2. The breach of contract occurred (if the plaintiff had succeeded) when he was dismissed on 23 February 2009.