McGinn v Department of Family and Community Services

On 25 September 2017, Sophia McGinn (“the applicant”) brought proceedings against the Department of Family and Community Services (“the respondent”) seeking damages for breach of contract. On 14 February 2018, those proceedings were dismissed by McCallum J: McGinn v Department of Family and Community Services [2018] NSWSC 103.

By notice of motion filed on 22 February 2018 the applicant seeks orders which have been pleaded in the following terms:

The motion is supported by an affidavit of the applicant of 22 February 2018 which was read without objection.

At the hearing of the motion, counsel for the respondent sought to rely upon an affidavit of Felicity Edwards, solicitor, of 23 October 2017 which had been relied upon before McCallum J in support of the application to dismiss the proceedings. The applicant, who appeared unrepresented before me, objected to that course. The basis of that objection was not entirely clear, but it appeared that the applicant argued that the affidavit was not relevant. However, as discussed in further detail below, one of the bases upon which the applicant seeks the orders in the notice of motion is that Ms Edwards’ affidavit was inadmissible in the proceedings before McCallum J, and thus should not have been taken into account by her Honour. In these circumstances, Ms Edwards’ affidavit is plainly relevant to the issues that I am required to determine.

I have also had regard to the transcript of the proceedings before McCallum J, to which the applicant took no objection.

A summary of the factual background to the proceedings brought by the applicant against the respondent is contained in the judgment of McCallum J (commencing at [2]) which I gratefully adopt:

On 27 July 2017 the applicant sought (inter alia) an injunction restraining the respondent from (as she put it) “deleting” her former position. At the time of seeking that order, the applicant had not commenced any proceedings against the respondent in this court, although she had commenced proceedings in the Industrial Relations Commission (“the Commission”). Her application for injunctive relief was dismissed by Lonergan J: McGinn v Department of Family and Community Services [2017] NSWSC 1124.

In respect of the proceedings which were then before the Commission, Lonergan J said (commencing at [37]):

As noted in [1] above, a statement of claim was filed by the applicant on 25 September 2017 following Lonergan J’s decision.

On 23 October 2017, the respondent filed a notice of motion seeking to have the proceedings brought by the applicant dismissed pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) (“the rules”), or alternatively struck out pursuant to r 14.8 of the rules. The respondent relied on the affidavit of Ms Edwards in support of that motion, which set out (inter alia) the history of the proceedings. The motion came before McCallum J for hearing on 8 February 2018. Her Honour delivered judgment on 14 February 2018 dismissing the proceedings.

In her judgment, her Honour noted (at [15]) that r 13.4 confers a power to dismiss proceedings where they are frivolous or vexatious, where no reasonable cause of action is disclosed, or where they are an abuse of process of the court. Her Honour also noted (again at [15]) that the respondent had sought, in the alternative, to rely on r 14.28 of the rules which confers a power to strike out pleadings if they disclose no reasonable cause of action, have a tendency to cause prejudice, embarrassment or delay, or are an abuse of process.

Her Honour noted (at [16]) that the respondent’s principal contention was that the proceedings brought by the applicant were an abuse of process because they sought to re-litigate issues that had been determined in the proceedings brought by the applicant in the Commission. Her Honour further noted (again at [16]) that the essence of the respondent’s submission was that the proceedings brought by the applicant raised an issue as to whether her employment was “ongoing” at the time that it was terminated, and that the Commission’s determination of that issue gave rise to an estoppel, such that any attempt to re-litigate the issue in this Court would be an abuse of process.

Her Honour concluded (at [36]) that the issue of the applicant’s ongoing employment was to be regarded as having been decided by the Commission in the relevant sense. In reaching that conclusion, her Honour expressly referred (at [29]) to the applicant’s submissions.

Her Honour further concluded (at [40]) that the issue of the applicant’s ongoing employment was closed by the decision of the Commission, and that in those circumstances it would be an abuse of process to re-litigate that issue in this Court. In reaching those conclusions her Honour made specific reference (at [37]-[39]) to the applicant’s submissions.

Finally, in the event that her principal conclusions were found to be incorrect, her Honour recorded (at [41]) that she would have struck out the applicant’s pleadings because they disclosed no reasonable cause of action. In reaching that conclusion, her Honour again expressly referred (at [42]) to the applicant’s submissions.

Consistent with the references in her Honour’s judgment to the applicant’s submissions, the transcript of the hearing before her Honour makes it clear that quite apart from having been given the opportunity to file written submissions, the applicant was given ample opportunity to make oral submissions at the hearing. In giving the applicant that opportunity, her Honour said (commencing at T19.33):

The transcript then records the respondent’s lengthy oral submissions, extending over some 27 pages of the transcript. Plainly, the respondent was given every possible opportunity to articulate her position.

The primary submissions of the applicant are set out in her affidavit filed in support of the motion. They may be summarised as follows.

Firstly, the applicant submitted that when the proceedings were before McCallum J she had objected to the affidavit of Ms Edwards on the grounds of relevance. She further submitted that in the absence of any pleading, the affidavit was inadmissible and that her Honour erred in admitting it. The applicant submitted that in these circumstances, “the judgment was entered irregularly” because the only affidavit filed by the respondent was irrelevant to the orders sought, and therefore inadmissible having regard to the provisions of s 56(2) of the Evidence Act 1995 (NSW). The applicant submitted that McCallum J had no power to determine the matter in the absence of admissible evidence.

Secondly, the applicant submitted that McCallum J had failed to consider the question of whether proceedings could be brought based on the alleged breach of contract to which Lonergan J had referred in her judgment at [38]. The applicant submitted that McCallum J was “silent on Justice Lonergan’s finding that breach of contract is a valid cause of action”. She further submitted that McCallum J’s “silence” constituted “an admission that Justice Lonergan’s finding is correct and the statement of claim should not be dismissed”. It was submitted that in these circumstances, and because McCallum J “didn’t publish the judgment as she said she would”, there was an “admission” that the judgment had been “given against good faith”. It is not clear to me what the applicant meant by her references to the publication of the judgment.

Counsel for the respondent submitted that the applicant’s affidavit essentially advanced two bases upon which it was suggested that the decision the decision of McCallum J should be set aside, namely that:

The respondent submitted that both of these propositions were based on incorrect factual assumptions, and that neither enlivened any power, or gave rise to any foundation, to have the orders of McCallum J set aside.

As to the first proposition, counsel for the respondent submitted that the assertions made by the applicant regarding Ms Edwards’ affidavit were incorrect, and that the affidavit had been read without objection in the proceedings before McCallum J. Counsel further submitted that there was no irregularity arising from the affidavit or its filing, and that even if such an irregularity arose, the failure on the part of the applicant to raise it in a timely manner meant that she had waived her right to rely on any issue as to its admissibility in the current application. Counsel further submitted that even a cursory examination of Ms Edwards’ affidavit disclosed that its contents were admissible.

As to the second proposition, counsel for the respondent submitted that any suggestion that the decision of McCallum J was reached without considering the applicant’s submissions had no proper basis, and was completely at odds with what had in fact occurred. Specifically it was submitted that:

It was submitted that in all of these circumstances, no bad faith had even been disclosed let alone established, and that the present notice of motion should be dismissed.

Rule 36.15 of the rules is in the following terms:

Section 56 of the Evidence Act 1995 (NSW) is in the following terms:

The written submissions of the respondent made reference to a number of authorities which govern the operation of r 36.15, and from which the following propositions can be drawn.

Firstly, the focus of r 36.15(1) is upon the judgment or order that is attacked. The question is whether it was “given … entered or … made …” (inter alia) irregularly, such that the focus is on irregularity in those steps. The rule applies with particular force to default or consent judgments and orders, and those given or made ex-parte. It can only have limited application to judgments and orders made or entered after a hearing on the merits, at which all parties were represented and fully heard: Perpetual Trustees Australia Pty Limited v Heperu Pty Limited (No. 2) (2009) 78 NSWLR 190; [2009] NSWCA 387 at [16]-[17] per the Court (Allsop P (as his Honour then was), Campbell JA and Handley AJA).

Secondly a judgment is not given or entered irregularly, and an order is not made irregularly, where the irregularity occurred prior to a substantive hearing in which both parties were fully heard: Perpetual Trustees Australia Pty Limited v Heperu Pty Limited (No. 2) (supra) (at [18]).

Thirdly, a judgment is not given or entered irregularly, and an order is not made irregularly, where the alleged irregularity relates to technicality, and not a point relating to the substantive rights of the parties: Weber v Aquaqueen International Pty Limited [2013] NSWSC 1181 at [122]; [129]-[130].

Fourthly, in order for the power conferred by r 36.15(1) to be exercised, the irregularity or bad faith must relate to the making of the order, or the entering of judgment. A judgment must not be set aside if the irregularity or failure to exercise good faith is for slight or uncertain causes. This is because of the principle concerning the necessity for finality of judgments: Kendell v Carnegie (2006) 68 NSWLR 193; [2006] NSWCA 302 at [45] per Bryson JA (Hodgson and McColl JJA agreeing); Perpetual Trustees Australia Pty Limited v Heperu Pty Limited (No. 2) (supra) (at [32]-[33]; [45]).

In my view, the present notice of motion should be dismissed for a number of reasons.

Firstly, and fundamentally, no irregularity has been demonstrated in the making of the order to dismiss the proceedings. McCallum J made that order following a hearing on the merits, at which the applicant was given every possible opportunity to make submissions. It is apparent, both from the transcript of the proceedings and her Honour’s judgment, that the applicant’s submissions were fully considered. Any suggestion to the contrary is completely unfounded.

Secondly, the affidavit of Ms Edwards was plainly admissible in the proceedings before McCallum J.

Thirdly, it is evident from the transcript of the proceedings before McCallum J that at the outset of the hearing, counsel for the respondent made it clear that he was relying upon Ms Edwards’ affidavit. When asked by her Honour, the applicant confirmed that she had received the affidavit. She raised no objection to it, and the hearing proceeded.

Fourthly, the reference by Lonergan J in her judgment (at [38]) to proceedings for breach of contract amounts to nothing more than an observation by her Honour that it was open to the applicant to bring proceedings based on that cause of action if she wished to do so. That observation said nothing about, and certainly did not determine, the merits of any such proceedings. McCallum J considered those issues and reached the conclusion that the proceedings should be dismissed. No irregularity has been demonstrated in that conclusion, or the orders which followed upon it.

I make the following orders: