Moone v Boston Scientific Pty Ltd

This dispute has its origins in the COVID-19 pandemic.

The plaintiff, Ms Leyla Moone, worked for the first defendant, Boston Scientific Pty Ltd as a Senior Collections Specialist. Her employment was governed by a written contract of employment which Ms Moone had executed on 30 June 2015. The only parties to the contract were Boston Scientific and Ms Moone.

On 25 February 2022, Boston terminated Ms Moone’s employment and paid her five weeks salary in lieu of notice. While no reason was required under the contract, it is apparent that her termination was due to the fact that she was not willing to be vaccinated against the COVID-19 virus in circumstances where Boston required employees such as Ms Moone, who were required to carry out some of their duties from Boston’s premises, to be vaccinated.

By her further amended statement of claim filed on 13 August 2024 (FASOC), Ms Moone sues Boston and the second to fourth defendants (each of whom is an executive and director of Boston) for breach of the contract and claims damages of approximately $3.2 million.

By amended notice of motion dated 17 October 2024, the defendants have moved the Court for summary dismissal of the proceedings or the striking out of the FASOC.

For the reasons which follow, the Court has determined that the proceedings should be dismissed. In summary, taking Ms Moone’s claim at its highest, the Court has concluded that under no possibility can Ms Moone have a good cause of action for breach of the contract against any of the defendants (see General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128 – 129). Ms Moone’s contract was expressly terminable without cause on five weeks’ notice. Boston exercised its right to terminate the contract and to require Ms Moone not to work out the notice period but receive a five week salary payment in lieu. For the reasons set out in [35] to [38] below, a reference in these reasons to an action for breach of the contract by Ms Moone against Boston includes an action sounding in damages greater than the five weeks’ salary which Ms Moone was paid.

Furthermore, whatever the position in relation to Boston may be, Ms Moone can have no cause of action for breach of contract against the second to fourth defendants because they were not parties to the contract.

The Court received written submissions from both Boston and Ms Moone. At the hearing in the Applications List, Ms Moone appeared for herself and Mr J Fernon of Senior Counsel appeared for the defendants. I also record that, at several points in her address, Ms Moone asked me to give her advice as to how her claim against Boston could be framed. I declined to do so and explained to her why the Court could not give her that assistance. However, as I assured Ms Moone I would do, I have again reviewed her submissions and evidence in preparing these reasons.

The FASOC was irregular in form because it attached various documents on which Ms Moone relied in the pleading. While irregular, because she is self-represented that would not of itself justify striking out the FASOC. However, appending the documents did make clear that the essential facts were not in dispute. That is important, because the existence of a genuine factual dispute will almost always be dispositive against the making of an order for summary dismissal.

On 30 June 2015, Ms Moone entered into the contract, which included:

The critical events took place during the COVID 19 pandemic.

On 28 October 2021, Ms Moone sent an email to a manager within Boston with the subject line “Clarity required for integration back into the office Without Prejudice”, and which said:

On 2 November 2021, Ms Moone emailed, among others, the fourth defendant Mr Fastiggi:

On 8 November 2021, Mr Fastiggi replied to Ms Moone:

On 23 November 2021, Mr Fastiggi followed up with a further email to Ms Moone:

On 10 February 2022, Mr Fastiggi sent an email to Ms Moone with the subject line “COVID Outbreak Management Plan” which included:

On 16 February 2022, Ms Moone sent a document entitled “Notice of Demand“ addressed to Boston and the other defendants which, among other things, stated:

The “Notice of Demand” also sought what was described as “further and better particulars” and concluded with:

On 18 February 2022, Ms Moone met with Mr Fastiggi. Ms Moone indicated that the notice referred to in the previous paragraph had been sent and that further discussion should not occur until Mr Fastiggi had received it.

On 23 February 2022, Mr Fastiggi sent this email to Ms Moone:

On 24 February 2022 Ms Moone sent another document described as a “Notice of Demand” to Boston and the other defendants which included:

On 25 February 2023, Mr Fastiggi sent this termination letter on behalf of Boston to Ms Moone:

After that date, Ms Moone sent several further documents described variously as a “Notice of Demand”, “Notice of Remedy”, “Notice of Demand and Liability” and “Notice of Breach” to Boston and the other defendants. This culminated in a document entitled “Final Notice” dated 19 May 2022 and which included:

Ms Moone commenced these proceedings by a statement of claim filed on 26 June 2024. She filed an amended statement of claim on 17 July 2024 which appeared to remove the second, third and fourth defendants.

On 13 August 2024, she filed the FASOC, which reintroduced the second, third and fourth defendants as defendants in the proceedings.

The relief claimed in the FASOC is:

Paragraph 1 of the FASOC pleads entry into the contract. It then pleads various communications (some of which are extracted in [12] to [23] above), the various notices of demand and the defendants’ failure to respond to those notices, before concluding:

The defendants have moved on the motion, which seeks this relief:

There was no dispute about the applicable legal principles. In particular, Mr Fernon SC accepted that an order for summary dismissal would only be made if the high bar for such an order set out in General Steel (see [6] above) was met. That is the test which the Court has applied. Ms Moone submitted that the FASOC did disclose a cause of action against the defendants for breach of the contract.

In applying General Steel, I have borne in mind the recent observations (with which I respectfully express my agreement) of Leeming JA (Payne JA agreeing) in HNOE Limited v Angus & Julia Stone Pty Ltd [2024] NSWCA 271:

For the reasons which follow, the Court does not accept Ms Moone’s submissions. Essentially that is because in this case the Court has reached a high degree of certainty that whether as currently pleaded or otherwise, any claim brought by Ms Moone against any of the defendants for breach of the contract will fail.

It is convenient to begin with the most obvious point. Mr Fernon SC submitted that the FASOC (in particular paragraphs 43 to 45) pleaded no material facts which could give Ms Moone an action in damages for breach of contract against the second to fourth defendants. The reason is that they are not parties to the contract. The Court finds for that reason that the claim against those defendants is in the language of General Steel “manifestly groundless” or “under no possibility” could Ms Moone have such an action against them, and the proceedings against those defendants should be summarily dismissed.

Summary dismissal is the appropriate remedy because there is no utility in giving Ms Moone an opportunity to replead her claim against those defendants. That is because, as I develop further below, she informed the Court that if she was given an opportunity to replead, she would nevertheless still be relying only on an action for breach of contract and the Court is satisfied that Ms Moone has no such action against the second to fourth defendants.

Turning to Ms Moone’s claim against Boston, her written and oral submissions left the Court in no doubt that she genuinely believes that she has suffered a serious wrong at the hands of Boston which sounds in considerable damages for breach of contract. As she explained to me, she had arrived at the figure for the amount of her claim based upon her intention to remain in Boston’s employ until her retirement. She confirmed to me that her claim was one solely in contract and she submitted that it was properly pleaded.

For various reasons (being essentially those advanced by Mr Fernon SC), the Court concludes that the FASOC does not disclose a reasonable cause of action against Boston for breach of contract sounding in damages (or, to be more precise, in the alternative sounding in damages greater than her five weeks pay in lieu) and Ms Moone has been unable to demonstrate that an opportunity to replead would produce a different outcome.

Mr Fernon SC submitted that the termination letter was a written notice of termination in accordance with clause 7 of the contract (see [10] above) and that Boston had validly exercised its right under that clause (by its indication that Ms Moone’s last day of employment would be the date of the termination letter) that she not work out her five weeks’ notice period and, in lieu, be paid her five weeks salary. There was, Mr Fernon SC submitted, plainly no breach of contract by Boston.

I accept Mr Fernon SC’s characterisation of the termination letter when read in the context of the events leading up to it (set out in [12] to [23] above) and the terms of clause 7 of the contract. However, in reaching that conclusion I have borne in mind that Ms Moone is a non-lawyer representing herself. Given the drastic nature of summary dismissal, and the references in some of Ms Moone’s material to a contention that the contract was not terminated in accordance with its terms, I have also taken into account the consequences for her case of that possibility.

To that end, I accept it could be said that the termination letter does not, in terms, provide five weeks written notice and, therefore, does not give notice of termination in accordance with clause 7. However, on that analysis (which assumes in Ms Moone’s favour that the contract could only be terminated in accordance with clause 7), Ms Moone is still left without any cognizable cause of action for breach of contract that will sound in damages greater than the payment which was made to her in lieu. This is because her best case would be on all fours with the conclusion of the majority of the High Court in Sanders v Snell (1999) 196 CLR 392; [1998] HCA 64:

I have taken this alternative analysis into account notwithstanding that, in the course of argument, Ms Moone said that she could not point to any express term of the contract which she could say had been breached.

Ms Moone did, however, contend that while not pleaded in the FASOC, if she was to be given an opportunity to replead she would rely on an allegation of breach of an implied term of the contract. That term was identified in this exchange (Tcpt, 15 November 2024, p16 (27-45):

However, in my respectful opinion, the possibility of asserting an implied term to that effect is not a proper basis to allow Ms Moone an opportunity to replead. That is because the Court accepts Mr Fernon SC’s submission that an implied term to that effect would never be implied because it does not satisfy the familiar test for the implication of a term to give business efficacy in the advice of the majority of the Privy Council in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 282 – 283.

Applying that test, there are at least three reasons why the Court accepts Mr Fernon SC’s submission:

Further and alternatively to the conclusion in the preceding paragraph, the Court also accepts Mr Fernon SC’s submission that if an implied term to the effect advanced by Ms Moone was part of the contract, then the course of meetings and correspondence between the parties (the critical parts of which I have set out in [12] to [23] above) demonstrate that the parties had engaged in a process which sought to address Ms Moone’s concerns. In other words, even if there could be such an implied term in the contract, Boston had demonstrated by reference to those facts that a claim for breach of a term to that effect could not succeed.

Finally, in relation to the lack of utility in giving Ms Moone an opportunity to replead, two further matters must be noted.

First, when I asked Ms Moone what she would do if she was given an opportunity to replead, she affirmed that she would continue to maintain an action for breach of the contract but would reconsider the amount of damages to claim a lower figure. That is not a proper basis to allow Ms Moone to replead, because it demonstrates a fundamental inability to identify what breach of the contract could properly be pleaded that would justify a however much reduced claim for damages.

Second, in her written submissions, Ms Moone identified what she said were seven reasonable causes of action available to her. I will next set out each of these, together with Boston’s response which the Court accepts:

The Court finds that the claim for breach of contract sought to be advanced in the FASOC is manifestly groundless and under no possibility can Ms Moone have a good cause of action for breach of the contract against any of the defendants. The proceedings will therefore be dismissed. No leave to replead will be granted because Ms Moone has failed to satisfy the Court that she has any other available claim for breach of the contract that would not also meet the description of manifestly groundless.

The parties will be given an opportunity to address on costs.