McGinn v Department of Family and Community Services

1. [1]

   On 27 July 2017 the plaintiff appeared before me unrepresented. Her notice of motion had been referred to me as Duty Judge. The plaintiff asserted that despite no proceedings having yet been commenced in the Supreme Court, she was entitled to seek urgent relief pursuant to r 25.2 of the Uniform Civil Procedure Rules. She asserted that the urgency was that there was a risk that the defendant would “delete her position” and that she required an injunction to prevent that occurring.

2. [2]

   The orders sought were as follows:

   1. (1)

      An injunction order [sic] that the respondent not to delete the applicant’s former position, quality manager in the system per s 66 of the Supreme Court Act.

   2. (2)

      An order that the respondent to pay the applicant’s costs of this notice of motion.

3. [3]

   At the time the plaintiff first attended, she had not served the application or her affidavit in support upon the defendant or the defendant’s solicitor.

4. [4]

   The background to the application is that the plaintiff had commenced proceedings for unfair dismissal in the Industrial Relations Commission in February 2017. There was a failed Conciliation followed by a hearing in June 2017. The plaintiff was unsuccessful. Part of the subject matter appeared to stem from the plaintiff’s perception that the defendant was preventing any prospect of her reinstatement due to a planned restructure. The plaintiff has filed an application for leave to appeal from the Industrial Relations Commission decision on 11 July 2017 setting out various grounds of appeal.

5. [5]

   The plaintiff stated in her affidavit sworn 26 July 2017 in support of her Notice of Motion that she had sought a “stay order” in the Notice of Appeal. The application for leave to appeal filed on 12 July 2017 does include a request for a stay. The grounds are stated to be because “the Commission has a duty of care to order the respondent to recreate the position to reinstate the applicant instead of allowing that structure being implemented when it is common ground that the applicant’s substantive position is of important nature”.

6. [6]

   The plaintiff says that she was told by Chief Commissioner Kite of the Industrial Relations Commission on 18 July 2017 that only the Supreme Court has a power to grant the injunction she seeks. The plaintiff requested an undertaking from the respondent FACS on 19 July to “preserve her position in the system” until her appeal is determined. She stated that the respondent refused to give such an undertaking.

7. [7]

   Given that the Notice of Motion and Affidavit had not been served, I adjourned the motion to the following day with orders requiring service by email on the solicitor who had recently been corresponding with the plaintiff regarding matters relevant to the IRC proceedings. I suggested that the plaintiff consider approaching the Registry for assistance regarding the pro-bono scheme and/or to seek private legal advice and assistance.

8. [8]

   On 28 July the plaintiff again appeared without legal representation. Ms Bulut of Counsel appeared for the defendant. Ms Bulut was prepared to proceed and provided an outline of submissions. I invited the plaintiff to either proceed with the application without the benefit of legal representation or to elect to adjourn the proceedings so that she could obtain legal assistance and/or representation. The plaintiff declined the offer of an adjournment and stated that she was prepared to meet the defendant’s arguments herself and did not wish to adjourn to obtain legal advice.

Facts

1. [9]

   The plaintiff was employed by the defendant organisation in the position of quality manager and internal auditor as part of the Land and Housing Corporations Projects Division. On 30 January 2017 she lodged an application for unfair dismissal with the Industrial Relations Commission on the ground that the proposed deletion of her position was not a genuine redundancy (paragraph 2 of her affidavit of 26 July 2017).

2. [10]

   There was a conciliation on 15 March 2017 which the plaintiff says failed. The plaintiff asserts that on 16 March 2017, the respondent “finalised the new structure and redundancy”.

3. [11]

   Both the plaintiff and the defendant agree that her employment was terminated. The plaintiff asserts that the termination was “with the excuse that I refused to perform duties while those duties do not exist in the new structure and have been redundant” (paragraph 5 of her affidavit). The defendant in its outline of submissions stated that the termination was because the plaintiff to perform her duties on the basis that her position had been deleted, notwithstanding numerous directions that she was to continue to perform her role.

4. [12]

   On 11 May 2017, the plaintiff’s unfair dismissal application was filed and it seems an interim application of some kind was made on that day which the plaintiff says was refused “with false reason that an employee’s application is not an industrial dispute” (paragraph 6 of her affidavit). The plaintiff lodged a second application for unfair dismissal on the ground that the termination was invalid (paragraph 7 of her affidavit).

5. [13]

   Her application was heard by Commissioner Newall on 28 and 29 June 2017 who provided a decision on 10 July 2017 dismissing her application.

6. [14]

   Provided by way of submission rather than affidavit evidence, counsel for the defendant said that the evidence before the IRC was that the defendant had made a decision to restructure the organisation which had not yet been implemented and which would result in some positions being declared “excess”. The likely effect of this would be that some employees would be made redundant if they could not be redeployed. Whilst the final structure was decided in March 2017, it had commenced implementation but had not been finalised.

7. [15]

   On 12 July 2017, the plaintiff filed an application for leave to appeal and also sought a stay. This Application was appended to the plaintiff’s affidavit. In that Application she states that she is appealing from the whole decision of the IRC made on 10 July 2017 and that the questions raised by the appeal are whether the employment is still ongoing when the position does not exist in the finalised new structure. She asserts as reasons why leave to appeal should be granted that the appeal raises substantial issues of principle, substantial issues of law, has wider implications for jurisprudence of the IRC, and issues going to the proper administration of justice.

8. [16]

   The plaintiff’s grounds of appeal are that there was an error of law that an employment is considered as ongoing when the substantive position does not exist in the new structure, that there was an error made by Commissioner Newall in determining as a question of fact that there was a refusal to perform duties, that Commissioner Newall failed to consider all relevant submissions she had made in relation to procedural fairness, that the employment was not ongoing given the restructure (in effect), he failed to determine that her termination was not harsh and unjust and unreasonable and that he failed to correctly apply s 88 of the Industrial Relations Act 1996 (NSW).

9. [17]

   The plaintiff sought a stay because “the Commission has a duty of care to order the respondent to recreate the position, to reinstate the applicant instead of allowing that structure being implemented when it is common ground that the applicant’s substantive position is of an important nature”.

10. [18]

    The defendant submits that the application to the IRC for a stay was misconceived because the IRC did not have power to make the orders sought and a stay of the IRC decision would have been, in any event, futile as the IRC had already dismissed her application.

11. [19]

    The plaintiff’s appeal in the IRC is listed to be heard by the full bench on 22 September 2017.

12. [20]

    On 19 July, an email was sent by the plaintiff to the solicitor for the defendant stating, “Further to the stay application which Chief Commissioner Kite advised that only Supreme Court can grant such injunction. Please be advised that the applicant intends to apply for injunction unless the respondent is willing to give an undertaking to preserve the applicant’s position. If no reply is received by COB tomorrow 20 July 2017, I will take as a refusal”.

13. [21]

    A reply was provided by Sparke Helmore Solicitors’ Felicity Edwards, senior associate on 20 July 2017 at 5:37 pm as follows:

14. [22]

    The plaintiff then sent a reply on 21 July 2017 at 12:45 pm by email as follows:

Relevant legislation

1. [23]

   The Supreme Court Act 1970 (NSW) s 66 provides the Court with the power to issue injunctions at any stage of proceedings:

2. [24]

   Rule 25.2 of the Uniform Civil Procedure Rules 2005 (NSW) provides:

3. [25]

   The Industrial Relations Act 1996 (NSW) provides relevantly in ss 84, 88 and 89:

Plaintiff’s oral submissions in support of her application

1. [26]

   The plaintiff submitted by reference to the “Civil Trial Bench Book” that she was able to satisfy the relevant tests for a grant of injunction. First she submitted that there were legal rights and in particular statutory rights pursuant to her statutory employment contract with FACS.

2. [27]

   Second, she submitted that there was a serious question to be tried as set out in the Notice of Appeal. In support of this submission the plaintiff read directly from Part G of her Application for Leave to Appeal an Appeal stating as follows:

3. [28]

   Third, the applicant submitted that the balance of convenience favoured the order being granted because the defendant terminated her employment and did not pay her and that if the injunction is not granted then the plaintiff will have to pursue damages by a legal proceeding in the Supreme Court which is not convenient to any party or the Court or the respondent nor to FACS as it will have to face a damages claim. The plaintiff stated that she is “actually pursuing the injunction to reduce everyone’s liability”.

4. [29]

   Fourth, irreparable harm would be suffered by the plaintiff if the relief is not granted. In support of this submission, the plaintiff stated that her termination was an intentional tort and was potentially misfeasance in public office. She submitted that begs the question as to whether FACS is liable to pay her damages or whether the individual officer involved has to pay. She argued that she may not be able to recover damages if it is an individual who is liable. She also raised the issue as to whether damages would be a sufficient remedy. The plaintiff said she had a potentially $1 million claim because of her “loss of 20 years of employment” due to the actions of the defendant.

5. [30]

   The plaintiff also argued that it was unfair to the tax payer to have to pay her damages and the Courts have a duty of care to see whether that should be prevented.

6. [31]

   There are no proceedings commenced in this Court. The legal right the plaintiff asserts that she would pursue in this Court is an action for damages for breach of contract.

Defendant’s submissions

1. [32]

   The defendant noted that the Supreme Court has the power to grant an injunction both in its equitable auxiliary jurisdiction as well as the statutory injunction powers set out in s 66 of the Supreme Court Act 1970 (NSW). The defendant referred to the summary of relevant principles set out by Slattery J in Uber BV v Howarth [2017] NSWSC 54 as follows:

2. [33]

   The defendant submitted that before an injunction could be granted, the plaintiff needed to satisfy the Court that there was a claim against the defendant that had been properly brought in the Supreme Court with an identified legal right.

3. [34]

   The defendant submitted that there was no legal right to be determined by the Supreme Court, and the plaintiff’s legal rights related to her claim of unfair dismissal which can only be pursued in the IRC. The defendant identified the various types of relief that could be granted by the IRC as set out in s 89 of the Industrial Relations Act 1996 (NSW). Orders available included reinstatement, reemployment, remuneration, continuity, and compensation.

4. [35]

   It was argued that s 89, providing as it does the option for the Commission to order reinstatement or reemployment, is relevant to the consideration of the balance of convenience because the rights that the plaintiff has, to the extent that they can be characterised as legal rights, are currently being pursued in the Industrial Relations Commission.

5. [36]

   Whilst no statement of claim was available to assess how the claim would be formulated, from the plaintiff’s submissions there was nothing identifying a serious issue to be tried in the Supreme Court, particularly given the forms of relief still open to the IRC to order if the plaintiff’s appeal is successful.

Decision

1. [37]

   The plaintiff asserts that she may have a breach of contract claim if she fails in her appeal before the IRC. However, the fact that her proceedings before the IRC are not yet concluded, and because of the relief available to her in that Court pursuant to s 89 of the Industrial Relations Act 1996 (NSW) includes damages, there is not a serious question able to be tried in this Court to which protection of a right by injunction could currently apply.

2. [38]

   The plaintiff can make a claim for damages for breach of contract in this Court should she choose to do so if she fails in the IRC. That right is not affected in any way by the refusal to grant the injunction sought.

3. [39]

   The balance of convenience tells against the grant of the injunction sought. Remedies available to the plaintiff pursuant to s 89 of the Industrial Relations Act 1996 (NSW) remain available to her if her appeal is successful, including reinstatement and damages. Clearly the balance of convenience favours the relevant issues currently before the IRC in the plaintiff’s appeal being determined by the Full Court of that Court.

4. [40]

   The relief sought in this Court appears to be misconceived. In saying that, I express no opinion as to the merits of the plaintiff’s appeal before the IRC.

5. [41]

   In the circumstances, I dismiss the plaintiff’s application and order that the plaintiff pay the respondent defendant’s costs of the notice of motion.