2015 . Vol 21 No 3
Consulting Editor
Contents
page 30
Graham Smith Partner, Clayton Utz,
and Adjunct Professor, Victoria
University, Melbourne
Smart devices and recordings at work: legal
challenges
General Editor
Kerryn Tredwell and Jessica Fletcher HALL AND
Marilyn Pittard Professor of Law,
Monash University, and Consultant,
Clayton Utz, Melbourne
WILCOX LAWYERS
page 35
Rejecting a settlement offer in an unfair dismissal
case: the risk of costs
Ian Latham DENMAN CHAMBERS
page 38
Fiduciary and related statutory duties of employees
Graeme McEwen VICTORIAN BAR
Information contained in this newsletter is current as at May 2015
Editorial Board
Carol Andrades Consultant, Ryan
Carlisle Thomas Lawyers
Joe Catanzariti Vice-President, Fair
Work Commission
Sam Eichenbaum Partner, Rigby
Cooke Lawyers
Smart devices and recordings at work: legal
challenges
Kerryn Tredwell and Jessica Fletcher HALL AND WILCOX LAWYERS
“Smart devices” (phones, tablets and the like) populate almost every workplace and have increasing capacity to be used to record conversations. The practice of
making recordings appears to be occurring more often in
workplaces, with varying outcomes. This leads to challenges for employers.
The reasons for the increase in the conduct of
employees recording workplace discussions and meetings is open for debate, but one can speculate that it is
often the result of a view that the employee can lawfully
do it as a means of protecting themselves or proving
some wrongdoing that they perceive is occurring in the
workplace. Scenarios that can arise include:
• a disengaged employee secretly records conversations that occur in the workplace to use at a later
point in time in an employment dispute; or
• a manager secretly records a disciplinary meeting
to ensure an accurate record is kept of what was
said and agreed to.
So what happens if an employee secretly records
private workplace meetings and conversations using a
smart device? Can they do it and, if they do:
• Has anyone broken the law?
• Can those recordings be used in a subsequent
workplace dispute?
In this article, we look at the general rules that apply
to the recording of private conversations in the workplace and recent decisions of the Fair Work Commission
which have examined the issue of secret recordings.
What does the law say? A complex pattern
of rules and regulations
The act of intentionally and secretly recording a
private conversation by either an employee or manager
without the knowledge of one or more of the other
parties to that conversation may be a breach of applicable legislation operating in a particular state or territory.1
Importantly, each Australian state and territory has its
own set of rules and regulations that apply to covert
30
recordings of private discussions. The following table
lists the surveillance laws operating in Australia:
Victoria
New South Wales
Western Australia
Northern Territory
Australian Capital
Territory
Queensland
Tasmania
Surveillance Devices Act 1999
Workplace Surveillance Act 2005
Surveillance Devices Act 2007
Surveillance Devices Act 1998
Surveillance Devices Act 2007
Workplace Privacy Act 2011
Listening Devices Act 1992
Invasion of Privacy Act 1971
Listening Devices Act 1991
Most of these laws apply generally and are not
specific to the employer-employee relationship (although
there are exceptions, such as the Workplace Surveillance
Act 2005 (NSW)). Nevertheless, the general rules apply
to the workplace setting.
While the legislative schemes across the Australian
states and territories are broadly similar, there can be
important differences. As an example, the Victorian
legislation (the Surveillance Devices Act 1999 (Vic) (SD
Act)), prohibits a person from using any device (including a smartphone) to record a private conversation to
which the person is not a party, unless the person has the
consent (express or implied) of each of the parties to the
conversation to record it.2 The maximum penalty for
recording a private conversation without consent is 2
years’ jail and a hefty fine.
On the other hand, in jurisdictions such as South
Australia, Western Australia and New South Wales, it is
unlawful to record a conversation, even if a person is
party to it, without the consent of all participants.
The applicable legislation defines what a “private
conversation” is. Commonly, the term a “private conversation” is defined to mean a conversation carried on
in circumstances that may reasonably be taken to indicate that a party to it desires it to be confined to the
parties to the conversation. A conversation may remain
“private” even if parties are at liberty to tell others about
it at a later time.
Additionally, even if a private recording is lawfully
made because the legislation allows for a party to it to
make a recording (as is the case under the SD Act), there
employment law bulletin May 2015
can be prohibitions under the legislation on the communication or publication of that recording without the
consent of each of the participants to the conversation
(with limited exceptions). The SD Act contains such a
prohibition.
There are also some exceptions under the relevant
legislation which can make it lawful for a person to
secretly record a private conversation or to communicate
or publish it, for example, if the person has the consent
of all parties to the conversation to do this.
The kaleidoscope of rules about recording private
conversations means that when considering the issue of
secret recordings, it is important to identify which state
or territory legislation applies to any given case and to
review the provisions in the legislation carefully.
Of course, even if a recording of a conversation can
lawfully be made and/or disseminated, it does not
necessarily follow that such conduct is to be tolerated in
the workplace, as illustrated by a series of decisions in
the Commission.
What lessons can be drawn from the cases?
The cases are discussed below under two main
questions:
• Is the conduct of secretly recording conversations
a reason for dismissal?
• Can secret recordings be admitted as evidence in
proceedings before the Commission?
Is the making of a recording a valid reason
for dismissal?
Cases involving secret recordings are becoming increasingly common in the Commission. Several decisions
handed down in recent years illustrate this trend.
Ron Lever v Australian Nuclear Science and
Technology Organisation
In Lever v Australian Nuclear Science and Technology Organisation3 (Lever), the former Australian Industrial Relations Commission (AIRC) had to decide if an
employee had engaged in misconduct when he secretly
taped meetings, including his performance/disciplinary
review meetings that were held between the employee’s
manager, the employee and his union representative.
The AIRC ultimately determined that the conduct
was misconduct and did not accept the explanation from
the employee that he perceived himself to be the subject
of victimisation and that he took the recordings as a
means of protecting himself. In this case however, the
employee was dismissed summarily. The AIRC determined that termination with notice would have been
more appropriate.
The factors the AIRC took into account when determining if the employee’s conduct was misconduct included:
employment law bulletin May 2015
• The employee’s education and knowledge of what
he was doing was wrong. It was determined that
the employee was not an uneducated person and
he understood that the making of the recordings
would not have been agreed to by his employer.
• Whether the conduct was planned and not spontaneous.
• Any medical conditions suffered by the employee
that could have impaired his judgment.
• Ordinary community standards.
Importantly, the community standard articulated by
Commissioner Drake of the AIRC was:4
Applying ordinary Australian community standards I do not
accept that any employee or any employer would be
content to have any meeting they were attending secretly
tape recorded. The ordinary conduct of personal, business
and working relationships in our community is predicated
on the basis that if there is to be any record of a meeting it
will be agreed in advance. Anything else is quite properly
described as sneaky. Its very sneakiness makes it abhorrent
to ordinary persons dealing with each other in a proper
fashion.
Thompson v John Holland Group Pty Ltd
Following the decision in Lever, there have been a
series of other decisions. In Thompson v John Holland
Group Pty Ltd5 (Thompson), the employee had been
dismissed for secretly recording a meeting he had with
two of his managers. He revealed the recording to a
colleague who then informed a manager. An investigation into the employee’s conduct followed which resulted
in the employee’s dismissal for making the recording.
The employee lodged an unfair dismissal claim with the
Commission.
In determining the claim, the Commission had to
decide two issues:
• Was the secret recording of the meeting admissible
as evidence in the employee’s unfair dismissal
application?
• Was the employee’s dismissal unfair?
Ultimately, the answer to both questions was ‘no’.
The Commission’s answer to the first question was
closely linked to the applicable surveillance legislation,
which in this case was the Surveillance Devices Act 1998
(WA). The Commissioner held that it was likely that the
secret recording was made in breach of that legislation.
Even though the illegality of the recording did not
automatically preclude it from being admitted as evidence (because the Commission not being bound by the
ordinary rules of evidence), the Commission was not
convinced that the recording should be allowed into the
hearing.
On the second question, the Commission held that the
employee’s decision to secretly record the meeting with
31
his managers and then replay that recording to a colleague provided a valid reason for the employer to
terminate his employment. The Commission described
the secret recording of the meeting as “wrong and
inexcusable” and considered that the employee’s conduct had destroyed the essential relationship of trust and
confidence, emphasised by the fact that the colleague to
whom the employee revealed the secret recording gave
evidence that he no longer felt comfortable working
with the employee.
Thomas v Newland Food Company Pty Ltd
The Thompson decision was reinforced in Thomas
v Newland Food Company Pty Ltd6 (Thomas). In Thomas, the employee was working at a Queensland meat
processing plant. He had made three WorkCover claims
in respect of various injuries suffered over the course of
the five years he worked at the plant.
The employee began to secretly record meetings he
had with his managers as they attempted to organise
appropriate duties for him given his injuries. The employee
was eventually dismissed after it was discovered that he
had taken photos of alleged breaches of food safety
standards at the plant with a view to using them against
the employer unless he received a redundancy package.
The employee lodged an unfair dismissal claim. The
Commission found that:
• there was no evidence that the employee intended
to blackmail the employer with the photos of food
safety breaches; and
• the employee was not accorded procedural fairness in the manner of his dismissal.
It followed that the employee had been unfairly
dismissed and in the ordinary course would be entitled
to reinstatement. However, the Commission held that
reinstatement would not be appropriate given that “there
could hardly be an act which strikes at the heart of the
employment relationship, such as to shatter any chance
of re-establishing the trust and confidence necessary to
maintain that relationship, than the secret recording by
an employee of conversations he or she has with
management”.
Schwenke v Silcar Pty Ltd
A recent decision of the Commission which considered the dismissal of an employee for recording workplace meetings and went on appeal to a full bench of the
Commission is Schwenke v Silcar Pty Ltd.7 The performance of a trades assistant became an issue not long
after his initial engagement, culminating in a meeting
attended by the employee and his managers in which he
received a first and final warning to improve his performance.
32
A further meeting occurred two weeks later in which
the employee suggested that he had made a voice
recording of the first meeting. After that revelation, the
employer summarily dismissed the employee. The employee
subsequently brought an unfair dismissal claim against
the employer.
The Commission characterised the reasons for the
dismissal as being twofold:
• serious misconduct, being the secret recording of
the first disciplinary meeting with management;
and
• performance related issues.
Unlike the Thompson and Thomas cases considered
above, the Commissioner in this case did not consider
the relevant surveillance legislation to determine the
lawfulness of the employee’s secret recording. This was
largely because the employee did not seek to introduce
the recording as evidence during the hearing.
The Commission reiterated the message from the
Thompson and Thomas cases: secret recordings are
contrary to an employee’s duty of good faith and
undermine the mutual trust and confidence that is
essential to the employment relationship. The Commissioner here commented that, unlike notes taken with a
pen and paper during meetings, “secretly recorded
discussions are objectionable because one party is being
deceptive and purposefully misleading the other party”.8
The Commission concluded that the employee’s dismissal was not unfair. Both the employee’s misconduct
in recording the first disciplinary meeting without the
knowledge or consent of his managers, and the various
performance related issues identified by the employer,
provided valid reasons for the employer’s decision to
terminate the relationship. That finding was upheld on
appeal to the full bench of the Fair Work Commission.9
Can a recording be admitted into evidence
in the Commission?
The admissibility of secretly recorded conversations
in proceedings before the Commission may well turn on
the applicable surveillance legislation, as well as the
specific facts of the case. It is important to remember
that each Australian state and territory has different rules
and regulations in this regard.
In the case of Haslam v Fazche Pty Ltd T/A Integrity
New Homes,10 the Commission examined the issue of
whether an employee can rely on recordings he or she
has made to further their claim in the Commission.
In the case, Ms Haslam sought permission to bring
forward evidence comprising recordings made of two
separate meetings with two managers of the respondent
employer. The recordings were made without the knowledge of the two managers and were sought to be
employment law bulletin May 2015
admitted by Ms Haslam in response to what she read in
the two people’s witness statements. Ms Haslam contended, in relation to the witness statements, that statements that were made were false and could be proved as
such by the content of the recordings she had of
meetings.
The respondent employer argued that the recordings
were made unlawfully in contravention of the South
Australian Listening and Surveillance Devices Act 1972,
and that a combination of relevant provisions of the
Evidence Act 1995 (Cth), the Fair Work Act 2009 (Cth)
and certain relevant case law meant that the Commissioner should exercise a discretion not to allow the
admission of the recordings into evidence.
In this case, the Commission concluded that, while it
is not bound by the rules of evidence and procedure, it
can nonetheless have regard to such rules in making its
decisions.
On the issue of whether a recording of a conversation
made without the knowledge of the other party to a
conversation may be admitted, the Commission determined that, because the recordings were made without
the knowledge of the other parties to the conversations,
they were potentially made in contravention of the
applicable legislation and that they should therefore not
be available for admission to the evidence.
• Managers should be alert to the fact that their
conversations may be recorded by colleagues and
as such, when managing disciplinary issues, follow good practices and act in accordance with
relevant policies and procedures.
Employment policies
• Employment policies should be reviewed and
updated to deal with the conduct of employees
making covert recordings. Policies should expressly
prohibit the making of recordings in the workplace
without consent of the parties to the conversation.
Need for prompt action
• If employers become aware of secret recordings in
their workplace, the issue should be addressed
promptly and proportionately to the conduct having regard to all the circumstances of the case.
Advice prior to deciding on dismissal as course of
action
• Take advice before dismissing an employee for
making a secret recording to ensure that all relevant legal issues are considered, including the
applicable surveillance legislation.
Kerryn Tredwell
Partner
Hall And Wilcox Lawyers
kerryn.tredwell@hallandwilcox.com.au
What will be the approach to secret
workplace recordings in the future?
The act of secretly recording private conversations in
the workplace is generally viewed unfavourably. It may,
either on its own (as in Thompson) or combined with
other issues (as in Schwenke), constitute valid grounds
for disciplinary action, or in some instances, dismissal.
However, it is important to remember that while the
Commission has taken a dim view of employee conduct
in making secret recordings, unfair dismissal cases
always turn on their own facts. Now that the High Court
has decided that there is no implied term of ‘mutual trust
and confidence’ in employment contracts in Australia,11
it will be interesting to see whether the Commission
continues to reach the same conclusion on the basis of an
implied term of good faith alone.
Jessica Fletcher
Special Counsel
Hall And Wilcox Lawyers
jessica.fletcher@hallandwilcox.com.au
Footnotes
1.
Listening Devices Act 1992 (ACT) s 4; Surveillance Devices
Act 2007 (NSW) s 7; Surveillance Devices Act (NT) s 11 (but
only covers recording conversations that a person is not party
to); Invasion of Privacy Act 1971 (Qld) s 43 (but only covers
recording conversations that a person is not party to); Listening
and Surveillance Devices Act 1972 (SA) s 4; Listening and
Devices Act 1991 (TAS) s 5; Surveillance and Devices
Act 1999 (Vic) s 6 (but only covers recording conversations
that a person is not party to).
2.
Surveillance Devices Act 1999 (Vic) s 6(1).
3.
Lever v Australian Nuclear Science and Technology Organisa-
Implications for employers
If your workplace is grappling with the unfortunate
issue of staff recording one another, there are some tips
for managing the issue in the workplace.
Conduct of meetings
• Employees should be asked to switch off their
mobile phones and similar devices at the start of
confidential workplace meetings, including disciplinary and grievance meetings.
employment law bulletin May 2015
tion (2009) 189 IR 362; [2009] AIRC 784.
33
4.
Above, n 3, at [103].
5.
6.
7.
Thompson v John Holland Group Pty Ltd [2012] FWA 10363.
Thomas v Newland Food Company Pty Ltd [2013] FWC 8220.
Schwenke v Silcar Pty Ltd T/A Silcar Energy Solutions [2013]
FWC 4513.
8.
Above, n 7, at [65].
34
9.
10.
11.
Schwenke v Silcar Pty Ltd t/a Silcar Energy Solutions [2013]
FWCFB 9842.
Haslam v Fazche Pty Ltd T/A Integrity New Homes [2013]
FWC 5593.
Commonwealth Bank of Australia v Barker (2014) 312 ALR
356; 88 ALJR 814; [2014] HCA 32; BC201407419.
employment law bulletin May 2015
Rejecting a settlement offer in an unfair
dismissal case: the risk of costs
Ian Latham DENMAN CHAMBERS
One of the more terrifying aspects of litigation is the
receipt of a carefully calibrated offer to settle. If the offer
is within the range of likely outcomes, the recipient may
be at risk of an adverse costs order if they reject the
offer. While much litigation within industrial tribunals
has traditionally been insulated from such moments; the
recently amended s 400A of the Fair Work Act 2009
(Cth) provides that the Fair Work Commission may
make an order for costs against a party if satisfied that
the costs were incurred because of an unreasonable act
or omission of that party.
The amendment that led to this section restored the
costs regime set out in s 658(3)1 of the Workplace
Relations Act 1996. The federal industrial tribunal has
long held that a failure to accept a reasonable offer to
settle may constitute an unreasonable act or omission.
The Explanatory Memorandum to the Fair Work
Amendment Bill 2012 says of this section that:2
The amendments strike a balance between the need to
protect workers from unfair dismissal, and to provide a
deterrent against unreasonable conduct during proceedings.
The amendments will enable costs orders to be more easily
made in the case of unreasonable conduct but will not
prevent genuine claims from being pursued. They will
discourage frivolous and speculative claims and assist in
the efficient resolution of claims by encouraging all parties
to approach proceedings in a reasonable manner. These
measures are reasonable and proportionate to address the
time and expense that an unreasonable conduct by a
participant and/or their representative may cause another
party to incur.
The discretion to order costs
Test of unreasonableness: an objective test
The discretion to order costs in circumstances where
the costs were incurred because of an unreasonable act
or omission of the party is a very broad one, tied as it is
to the test of unreasonableness. VP Lawler in James
Abbey3 held that:
the reference … to acting “unreasonably” indicates that the
actions of the party against whom the application is made
are to be judged by reference to the standards of the
reasonable person.
The notion of an objective test was endorsed by the
Full Federal Court in Kangan:4
employment law bulletin May 2015
The requirement that the Commission be satisfied means
that the Commission must make an assessment of the
actions of the party in question. In undertaking this assessment it acts objectively, that is to say, it brings its own
opinion to the circumstances which resulted in the failure to
agree to the terms of settlement.
Because the Commission must make its own judgment
about whether the party acted unreasonably, the views of
that party about the chances of success of the case cannot
be determinative.
But that is not to say that the views of that party on various
issues relevant to the decision not to agree to the terms of
settlement are necessarily irrelevant or cannot be taken into
account. Indeed, as the Commission is investigating the
action of that party, an obvious starting place for the
investigation is to enquire why that party did not settle. A
natural process of reasoning under the section would start
by determining why the party failed to enter into the terms
of settlement. The next step would be to assess whether that
action was unreasonable. In other words, the views and
motivations of the party will be the usual basis from which
an assessment of reasonableness will be made.
Need to assess risk — and to compromise
Inherent in such an exercise is the need to assess risk
and to compromise. As VP Lawler held in Abbey:5
a reasonable person approaching settlement does so on the
basis that, by definition, settlement involves some compromise. It involves accepting less than the full remedy that is
expected in the event of complete success in order to obtain
certainty of outcome and to avoid the possibility of loss.
The task is not a mechanistic one. As the Full Federal
Court held in Blagojevch in speaking of a predecessor
provision:6
The reasonableness of the terms offered (together with the
expressed willingness, or otherwise, of the other party to
enter into negotiation) will be relevant in applying the
statutory test but is unlikely, usually, to be the only, or
primary, relevant matter. Certainly there is no reason to
give primacy to the result of a mechanical comparison
between an amount offered and the amount of compensation ultimately awarded; although, if an applicant offers to
settle for a particular amount and the arbitration results in
the award of a substantially lesser amount by way of
compensation, it would no doubt be only in unusual
circumstances that the respondent would be held to have
acted unreasonably in rejecting the offer.
The tribunal is required to consider the entirety of the
facts and circumstances so that a “complete picture” is
formed.7 In doing so, it is entitled to look at the
35
behaviour of the parties including matters such as the
proximity of the offers, the preparedness to revise
settlement offers and the other terms of the offer.8
Statements from the tribunal as to prospects of success
may be relevant.9
The tribunal has held that a cautious approach should
be adopted in awarding costs in circumstances where the
decision relies upon credit findings.10 In similar vein, a
party can act reasonably in responding to an offer of
settlement by reference to that party’s “genuine perception or recollection of events”.11 Nevertheless, a party
cannot simply disregard matters that should have been
reasonably apparent and then claim that such matters
were not apparent to them.12
Parties are entitled to engage in hard bargaining
without being considered unreasonable.13 The situation
may be complicated by the insertion into the offer of
matters that do not relate to the dismissal. In such
situations it may be reasonable to reject the offer.14
Finally the commission generally will not hear evidence
of offers made during conciliation processes.15
The case of Roy Morgan Research16 encapsulated
many of these themes. In that case; the applicant
surpassed their own offer to settle. The respondent’s
argument had been described in a stay application by the
tribunal as weak and barely arguable. The respondent
was found to have put no evidence to substantiate its
claim. The Full Bench found that the respondent had
travelled beyond a course of hard bargaining into the
realm of refusing to reasonably assess its own prospects
of success. The Full Bench ordered the respondent to
pay the applicant’s costs.
Offers as to compensation only
In purely commercial cases it is often easy to assess
risk in financial terms. Unfair dismissal cases often
involve questions as to reinstatement and protection of
reputation. These are often very difficult to value.17 In
Roy Morgan Research Ltd,18 the Full Bench held that
these matters could be weighed in the balance. In doing
so, it adopted the analysis in Brazilian Butterfly of the
predecessor sections:19
Very strong prospects of success will not always justify a
failure to participate in settlement negotiations initiated by
a serious settlement offer from the other party. For example,
where reinstatement is not sought and the amount offered
by a respondent is equivalent to the statutory cap on
compensation that can be ordered…, it will likely be
unreasonable for an applicant to fail to agree to a settlement
on those terms, irrespective of how strong the applicant’s
case is. Of course, even then, it is possible to conceive of
circumstances where a failure to agree terms of settlement
on the basis of such an offer would not be unreasonable.
For example, depending upon the circumstances, it may be
entirely reasonable for an applicant to insist upon a
36
withdrawal of the dismissal and acceptance of a resignation
in its stead if this were necessary to repair substantial
damage done to an applicant’s professional reputation and
future professional job prospects as a result of the dismissal.
On the other hand, modest or even poor prospects of
success on liability or remedy will not necessarily always
make it unreasonable for a party to fail to agree terms of
settlement that may lead to the discontinuance of the
application. For example, an applicant who was a long term
employee close to retirement may have very substantial
contingent superannuation entitlements that will be lost
unless he or she obtains reinstatement. The difference
between the value of those contingent entitlements and the
amount offered by the respondent as a monetary settlement
may be so great as to make it reasonable for the applicant
to refuse the respondent’s offer, notwithstanding that the
applicants’ prospects of success are only modest or even
poor. Again, each case will turn on its own facts.
Reinstatement versus financial settlement?
On the basis of that reasoning above, an applicant
seeking reinstatement but offered a financial settlement
might be faced with an invidious choice. To pursue the
reinstatement might put them at risk of an adverse costs
order. To accept the offer may be to forsake the
possibility of further employment and reputational vindication.
The making of counter offers
Failure to make a counter offer may lead to costs
orders being made as that failure might be regarded as
acting unreasonably. As the commission held in Brazilian Butterfly:20
In a situation where an offer was made which was not
fanciful and no counter offer was made by the opposing
party to bring negotiations into the range the opposing party
thought was reasonable, failure to make a counter offer
could, depending on the circumstances, constitute acting
unreasonably in failing to agree to terms of settlement.
Conclusion
An enduring criticism of the unfair dismissal system
has been that employers would pay “go away” money to
fend off unmeritorious claims, simply to avoid the costs
and inconvenience of appearing before the commission.21 On the other hand, it is difficult to see how most
successful applicants do not find that their orders for
compensation are swallowed by their legal costs.22 The
imposition of a costs regime goes some way to dealing
with each criticism.
With that change in the regime comes considerably
greater risk for parties and their legal representatives.
How then should a party deal with an offer to settle? As
the Full Bench held in Roy Morgan:23
[43] A reasonable person, who is a party to proceedings…,
when confronted with an offer of settlement from the other
employment law bulletin May 2015
party, will determine whether, and if so, how to respond to
such an offer after considering all the circumstances of the
case, including:
• the terms of the settlement offered in relation to the
relief sought;
• the relative strengths of the parties’ cases (and thus
their relative prospects of success) in relation to both
‘liability’ and the relief sought;
• any assessment of the merits in the certificate issued
by the Commission…;
• the likely length and cost of proceeding to a hearing
if the matter does not settle; and
• any adverse consequences that will accrue to a party
if they accept a settlement on particular terms rather
than successfully prosecute or defend the primary
application, as the case may be.
Those circumstances are not always easy to consider
and the balance not always easy to weigh. Nevertheless,
those who fail to do so place themselves at significant
risk.
Ian Latham
Barrister
Denman Chambers
ianlatham@denmanchambers.com.au
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
Footnotes
1.
See also s 170CJ of the pre WorkChoices Act which expressly
referred to failing to agree to terms of settlement.
2.
See Fair Work Amendment Bill 2012.
3.
Abbey v Daycare Management Pty Ltd ((2004) unreported,
AIRC, Lawler VP, PR946186, 30 April 2004) at [14].
4.
Council of Kangan Batman Institute of Technology and Further
20.
21.
Education v Australian Industrial Relations Commission (AIRC)
(2006) 156 FCR 275; 160 IR 405; [2006] FCAFC 199;
BC200610701 at [42]–[44].
5.
Above, n 3, at [18].
6.
Blagojevch v Australian Industrial Relations Commission (2000)
98 FCR 45; 98 IR 32; [2000] FCA 483; BC200001870 at [34].
employment law bulletin May 2015
22.
23.
Chahwan v Sutherland Shire Montessori Society Inc [2015]
FWC 814 at [33].
Department of Employment and Workplace Relations v Jason
Owen Oakley [2005] AIRC 447 at [41].
Roy Morgan Research Ltd [2014] FWCFB 1175 at [25].
Hyde v R S Thomas and Company [2014] FWC 7391 at
[29]–[33].
Appeal by Brazilian Butterfly P/L against decision [PR961139]
and order [PR961184] of Simmonds C of 8 August 2006 — Re
Charalambous, Lawler VP, Hamilton DP, Hingley C, 25
August 2006 [PR968915], 155 IR 36 at [45].
Appeal by Brazilian Butterfly P/L against decision [PR961139]
and order [PR961184] of Simmonds C of 8 August 2006 — Re
Charalambous, Lawler VP, Hamilton DP, Hingley C, 25
August 2006 [PR968915], 155 IR 36 at [45].
Above, n 9, at [25]; see also Halabi v The Star Pty Ltd [2014]
FWC 1945 at [32].
Femia v Prima Pizza and Pasta [2014] FWC 7816 at [37];
Nguyen v MORF Dynamics Pty Ltd [2013] FWC 9774 at [6].
Resul v Fantastic Lights [2015] FWC 624 at [11].
Above, n 9.
See for example Geoffrey Purser v Commonwealth Attorney —
PR941610; [2003] AIRC 1524 at [33]; see also to similar effect
Joblink Plus Ltd v H Sayner — PR955302; [2005] AIRC 71,
although note that these cases seem to adopt a subjective test as
to unreasonableness.
Above, n 9, at [12]
Appeal by Brazilian Butterfly P/L against decision [PR961139]
and order [PR961184] of Simmonds C of 8 August 2006 — Re
Charalambous, Lawler VP, Hamilton DP, Hingley C, 25
August 2006 [PR968915], 155 IR 36 at [24].
Above, n 11, at [27].
Therese MacDermott and Joellen Riley, ADR and Industrial
Tribunals: Innovations and challenges in resolving individual
workplace grievances, Monash University Law Review (Vol 38,
No 2), 82 at 85l see also “Towards more productive and
equitable workplaces, An evaluation of the Fair Work legislation” at p 219.
See analysis of compensation outcomes in “Towards more
productive and equitable workplaces, An evaluation of the Fair
Work legislation” at p 221.
Above, n 9, at [13].
37
Fiduciary and related statutory duties of
employees
Graeme McEwen VICTORIAN BAR
Introduction
Not uncommonly, an employee successfully competes with their employer to poach a maturing business
opportunity, despite an obligation in the circumstances
to act in their employer’s interests. The employee may or
may not be a senior manager.
It will be known that there is ordinarily implied a
duty of good faith by an employee to the employer under
the employment contract.1 Employees also can become
subject to fiduciary duties. Employee and employer,
trustee and beneficiary, agent and principal, solicitor and
client, director and company, and partners, are all
accepted fiduciary relationships.2
These obligations though have different conceptual
origins. In Concut Pty Ltd v Worrell,3 Gleeson CJ,
Gaudron and Gummow JJ said:4
Contractual obligations and fiduciary duties have different
conceptual origins, “the former”, in the words of McLelland J, “representing express or implied common intentions
manifested by the mutual assents of contracting parties, and
the latter being descriptive of circumstances in which
equity will regard conduct of a particular kind as unconscionable and consequently attracting equitable remedies”.
At the same time it is well established that the
contractual relationship between the parties may affect
the scope of the fiduciary relationship between them,
that is to say, the express terms of the contract.5
So if an employee usurps and diverts to say an alter
ego company an employer’s maturing business opportunity, what legal remedies exist for the employer? In
brief, a proceeding may be brought in contract, and in
reliance on fiduciary duties and not too dissimilar
statutory duties imposed upon employees by the Corporations Act.
The statutory setting: Corporations Act
Sections 182(1) and 183(1) of the Corporations Act
provide that an employee of a corporation must not
improperly use their position or information they obtain
as an employee to:
(a) gain an advantage for themselves or someone else;
or
(b) cause detriment to the corporation.
38
Section 184(2) provides for an offence if the employee
uses their position “dishonestly” as defined.6
Obligation on officer and whether an
employee is an “officer”
In addition, by s 181(1) a person who is an “officer”
of a corporation:
…must exercise their powers and discharge their duties
(a) in good faith in the best interests of the corporation;
and
(b) for a proper purpose.
This in turn raises the question of when the employee
concerned is an “officer”. Section 9 provides that, unless
the contrary intention appears, “officer of a corporation”
means inter alia:
(b) a person
(i) who makes, or participates in making, decisions that affect the whole, or a substantial
part, of the business of the corporation; or
(ii) who has the capacity to affect significantly the
corporation’s financial standing.
It will be known that there are employees who by
reason of usually their seniority will answer this description. In this respect, it is instructive to note that s 9
defines a “senior manager” (unless the contrary intention
appears) inter alia in precisely the same terms.
In both definitions the compass of the word “affect”
stands to be crucial in a given case in determining
whether an employee answers the description of an
officer or senior manager. The Concise Oxford Dictionary for example inter alia defines “affect” as “produce
(material) effect on”.
For those employees who do not answer the description of an “officer”, and so are not subject to the
obligations provided for in s 181 of the Corporations
Act, there remains the employee’s duty to act in good
faith as an implied term of their employment contract.
Sections 181 to 183 and the fiduciary duty
In addition ss 182 and 183, without more, are similar
in scope to a fiduciary duty7 and apply to all employees,
including an “officer”. Fiduciary obligations arise because
a person has come under an obligation to act in another’s
employment law bulletin May 2015
interests.8 In brief, the fiduciary duty is to avoid a
conflict of the fiduciary’s own interest and his duty (in
this instance) to their employer, and to not obtain any
unauthorised benefit from use of their fiduciary position.9
It is well settled in Australia that fiduciary duties are
proscriptive, not prescriptive, unlike in Canada where
fiduciary obligations are viewed as both proscriptive and
prescriptive.10 The proscriptive obligations of a fiduciary are not to obtain an unauthorised benefit from the
relationship and not to be in a position of conflict.11
Thus fiduciary duties are not an independent source of
positive obligations and do not create new forms of civil
wrong.12 In Australia prescriptive duties by contrast are
the domain of tort and contract.13
Ordinarily then in the case of say an employee
poaching an employer’s maturing business opportunity,
the statutory duties under ss 182 and 183 should suffice
to secure an appropriate remedy for the employer. It
should be noted too that the duty under s 183 in respect
of information continues after the person stops being an
officer or employee of the corporation: see Note 1, s 183.
The statutory capture of the third party
participant
Sections 182, 183 and 184(2) also prohibit the
employee (whether an officer or not) from gaining an
advantage for “someone else”. The “someone else” will
ordinarily be a third party, such as an alter ego company
(controlled by the employee) to which the employee
successfully diverts the maturing business opportunity.
Sections 181(2), 182(2) and 183(2) provide “A person who is involved in a contravention of subsection (1)
contravenes this subsection.” (emphasis added)
This provision is plainly intended to capture the
“someone else” who gains an advantage from the
employee’s offending conduct.
Section 79 defines “involved” in these terms:
A person is involved in a contravention if, and only if, the
person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced, whether by threats or promises or
otherwise, the contravention; or
(c) has been in any way, by act or omission directly or
indirectly, knowingly concerned in or party to, the
contravention; or
(d) has conspired with others to effect the contravention.
The broad correlation between this statutory definition and the second limb of Barnes v Addy14 is apparent.
Barnes v Addy by the first limb, known as “knowing
receipt”, is where persons receive and become chargeable with some part of the trust property; and the second
limb, known as “knowing participation”, is where they
employment law bulletin May 2015
assist with knowledge in a dishonest and fraudulent
design on the part of the trustees.15 This first limb
applies where a third party receives an interest in trust
property with notice it is so and that it is being
misapplied. The second limb applies where agents or
third parties assist with knowledge in a dishonest or
fraudulent design by the trustees or the fiduciary (who
does not have to be a trustee).16 The liability under either
limb is a personal, fault based, one: see for example
Grimaldi v Chameleon Mining NL (No 2).17
Fiduciary duties
An employee may become subject to a fiduciary duty.
The existence of a fiduciary obligation does not depend
upon a particular status relationship: see ABN AMRO
Bank NV v Bathurst Regional Council.18 A person will
be in a fiduciary relationship with another when and
insofar as that person has undertaken to perform such a
function for, or has assumed such a responsibility to,
another as would thereby reasonably entitle that other
person to expect that he or she will act in that other’s
interest to the exclusion of his or her own or a third
party’s interest: see Hospital Products Pty Ltd v United
States Surgical Corp;19 News Ltd v Australian Rugby
Football League Ltd;20 Pilmer v Duke group Ltd;21
Australian Securities and Investments Commission v Citigroup
Global Markets Australia Pty Ltd (No 4)22 and ABN
AMRO Bank NV v Bathurst Regional Council.23
Afterall, it is not difficult to imagine an employee
who is not a “senior manager” as able to clandestinely
usurp and divert to someone else (such as a company
they control) a maturing business opportunity actively
pursued by their employer corporation. This could arise
for example by reason of a course of dealing on behalf
of the employer by the employee as part of their
responsibility (and thus in a representative character)
with the company conferring the business opportunity.
In such an instance the employer would be entitled to
assume the employee would not compete with it for the
maturing business opportunity. For in such dealings on
their employer’s behalf, can it be seriously contended
that the employee did not so undertake? Further, whether
a fiduciary relationship has come into existence does not
depend upon the motivation or desire of one party to
establish a relationship of trust or confidence. What
matters is whether there is a relationship involving the
requisite undertaking, determined as a matter of objective characterisation, rather than having regard to the
subjective expectations of the parties: ABN AMRO Bank
NV v Bathurst Regional Council;24 Beach Petroleum NL
v Kennedy.25
Accordingly, there must then be identified the scope
of the fiduciary duty and its breach by reason of a
conflict of the employee’s duty and interest. However, in
Kak Loui Chan v Zacharia26 Deane J said:
39
The equitable principle governing the liability to account is
concerned not so much with the mere existence of a conflict
between personal interest and fiduciary duty as with the
pursuit of personal interest by, for example, actually entering into a transaction or engagement “in which he has, or
can have, a personal interest conflicting … with the
interests of those whom he is bound to protect” (per Lord
Cranworth LC, Aberdeen Railway Co v Blaikie Brothers
(1854) 1 Macq 461 at 471) or the actual receipt of personal
benefit or gain in circumstances where such conflict exists
or has existed.
Further, a person in a position of trust who retires
after making arrangements for the impugned transaction
cannot escape: see for example Spincode Pty Ltd v Look
Software Pty Ltd.27
Statutory compensation
If a court is satisfied that a person has contravened,
among others, one of ss 181(1) and (2), 182(1) and (2),
183(1) and (2), it must make a declaration of contravention: s 1317E. Whether or not a declaration of contravention has been made, a compensation order for damage
suffered may be made under s 1317H(1). Such damage
includes profits made by any person resulting from the
contravention or the offence: s 1317H(2).
Remedies for breach of fiduciary duties
As to remedies for breach of fiduciary duty, there is,
first, the constructive trust: the fiduciary will hold on
constructive trust any property or benefit derived to the
extent it remains extant or can be traced in the fiduciary’s hands.28 A constructive trust is a trust imposed by a
court. It is thus imposed irrespective of the intentions of
the parties, presumed or otherwise.
Second, the wrongdoing fiduciary can be held liable
in an in personam claim, to account for profits derived
attributable to the breach of fiduciary duty.29
Third, a defaulting fiduciary will be liable, at the
beneficiary’s election, to pay equitable compensation,
the object being to restore the beneficiary to the position
it would have been had there been no breach of fiduciary
duty.30
Making the election between equitable
compensation and an account for profits
The practitioner must keep in mind then the need for
the client to make an election between pursuit of
equitable compensation or an account for profits.31 It
may be too that the client is unlikely to be able prove as
a matter of causation that it would have secured the
maturing business opportunity and thus likely fail to
obtain equitable compensation. In that event, an account
for profits would seem a more favourable remedy.
40
Liability to account does not depend on
loss or whether the plaintiff could have
earned the profit
The stringent rule is that the fiduciary cannot profit
from his trust. It is no defence that a plaintiff was
unwilling, unlikely or unable to make the profits for
which an account is taken or that the fiduciary acted
honestly and reasonably.32 So the liability of the fiduciary to account does not depend upon detriment or loss
or injury to the plaintiff33 and it is ordinarily immaterial
that the plaintiff could not have earned the profit or
gain.34
While the object of equitable compensation as a
remedy is restitution of what the victim has lost, the
purpose of an account for profits is to prevent the
defendant’s unjust enrichment by compelling the fiduciary to surrender any profits actually made by the
fiduciary which were made improperly. It is not to
punish the fiduciary.35
Equity moulding the remedy
The remedy must be fashioned to fit the nature of the
case and the particular facts.36 It is for the defendant to
establish that it is inequitable to order an account of the
entire profits. Thus a plaintiff may not stand by and
permit a defendant to make profits and then claim
entitlement to them. Whether it is appropriate to allow
an errant fiduciary a proportion of profits or to make an
allowance for skill, expertise and other expenses is a
matter of judgment which will depend on the facts of the
particular case. But in the absence of an antecedent
arrangement for profit sharing, a court will not apportion
profits as a general rule. This is in conformity with the
principle that a fiduciary must not profit from a breach of
fiduciary duty: see generally Warman International Ltd
v Dwyer.37 However, an account for profits may not be
granted where “it would be unconscientious to assert it”:
Chan v Zacharia.38
Case example
Warman International Ltd v Dwyer turned on its own
facts. An Italian manufacturer of gearboxes by notice
terminated a continuing contract with its Australian
distributor, Warman. The contract was terminable upon
3 months’ notice. Dwyer, an employee of Warman and
the errant fiduciary in this case, resigned during the
notice period. He had previously conducted secret negotiations with the Italian distributor. Thereafter a company controlled by Dwyer and his wife was appointed
Australian distributor. Shares were issued in a further
company equally divided between Dwyer and his wife
and the Italian distributor, as the vehicle for a joint
venture for local assembly of products. The question
became what was fair and reasonable as the period of the
employment law bulletin May 2015
account for profits given the indefinite duration of
Warman’s contract. Thus it became relevant as to how
long the Warman agency was likely to have subsisted in
any event.
This is quite different though from where an employee
poaches a maturing business opportunity for a fixed term
such as say 2 years upon the expiry of their employer’s
current fixed term contract.
Remedies against participating third party
The alter ego corporate creature is fully liable for the
profits made from, and the losses inflicted by, the
fiduciary’s wrong. Remedies can extend to the award of
proprietary relief where this is appropriate, such as the
imposition of a constructive trust on an asset which
constitutes the benefit in question. In an alter ego case
liability will be joint and several with that of the
fiduciary. Proof of a breach of fiduciary duty will suffice,
and liability does not turn on the need to show “dishonesty”, although it often provides the reason for interposing the company. The liability itself is explained commonly
on the basis of full knowledge of the facts;39 it is the
alter ego with a “transmitted fiduciary obligation”;40 or
that it “jointly participated” in the breach.41 The Full
Federal Court in Grimaldi v Chameleon Mining NL (No
2)42 endorsed the observation in CMS Dolphin43 that it
is “rather artificial” to use Barnes v Addy to explain this
liability. See generally the helpful discussion of the
foregoing in Grimaldi v Chameleon Mining NL (No 2)44
and of other kinds of participating third parties, for
example, inducer or procurer, dealer at arms length etc.
Further, it will be remembered that:
• sections 181(2), 182(2) and 183(2) provide that “A
person who is involved in a contravention of
subsection (1) contravenes this subsection” (emphasis added);
• section 79 defines when a person is so involved;
• section 1317H(1) provides that a court may order
“a person to compensate a corporation … for
damage suffered by the corporation … if (a) the
person has contravened a corporation... civil penalty provision…; and (b) the damage resulted from
the contravention”; and
• section 1317H(2) provides that damage includes
“… profits made by any person resulting from the
contravention …” (emphasis added).
Summary
There is a broad similarity in scope between fiduciary
duties and the duties owed by employees by reason of
ss 182 and 183; in the manner in which participating
third parties are rendered liable by statute or Barnes
v Addy; and in compensation for breaches pursuant to
the Corporations Act or the foregoing equitable principles. The Corporations Act only imposes under s 181
a good faith and proper purpose obligation upon an
employee who answers the definition of an “officer” of
a corporation.
An employee may be subject to a fiduciary obligation. It is not status dependent. For the key is the
vulnerability of the employer to the employee’s conduct
in the circumstances. The fiduciary remedies are the
constructive trust, an account for profits, and equitable
compensation. A plaintiff however must elect between
the two compensation remedies. Equitable compensation turns on causation and restitution of what the victim
lost.
An account for profits turns on preventing unjust
enrichment and the stringent rule that a fiduciary cannot
profit from his trust. Liability to account does not
depend on loss or whether the plaintiff could have
earned the profit. An allowance may be made for skill,
expertise and expenses. But each case will turn on its
facts, and the remedy will be fashioned accordingly. It
may not be available where “it would be unconscientious to assert it”, or where equitable defences exist.
Graeme McEwen
Victorian Bar
Footnotes
1.
at [118].
2.
employment law bulletin May 2015
Hospital Products Pty Ltd v United States Surgical Corp
(1984) 156 CLR 41; 55 ALR 417 at 454; 58 ALJR 587;
BC8400480 per Mason J; and see generally M Pittard and R
Naughton, Australian Labour and Employment Law, LexisNexis,
2015, pp 214–25.
3.
Concut Pty Ltd v Worrell (2000) 176 ALR 693; 75 ALJR 312;
[2000] HCA 64; BC200007593.
4.
Above, n 2, at [26].
5.
See, Blackmagic Design Pty Ltd v Overliese (2011) 191 FCR 1;
276 ALR 646; [2011] FCAFC 24; BC201100702 at [117];
Hospital Products Ltd v United States Surgical Corp (Hospital
Products/Surgical Staples case) (1984) 156 CLR 41 at 99; 55
ALR 417; 58 ALJR 587; BC8400480.
6.
The statutory duties are in addition to, and not in derogation of,
any rule of law relating to the duty or liability as an employee
Defences
This is not the place to canvass equitable defences,
other than to note them, such as informed consent,
acquiescence, election, waiver and estoppel.
See for example Blackmagic Design Pty Ltd v Overliese (2011)
191 FCR 1; 276 ALR 646; [2011] FCAFC 24; BC201100702
41
of a corporation: s 185. Further, they do not prevent the
23.
7.
BC201404937 at [1066], subparagraph 4.
See Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd
(2009) 81 IPR 1; [2009] FCAFC 2; BC200900135 at [36];
24.
FCR 1; 309 ALR 445; 99 ACSR 336; [2014] FCAFC 65;
ACLC 269; BC9402358; Forkserve Pty Ltd v Pacchiarotta
BC201404937 at [1066] and the texts and articles therein
See for example, Breen v Williams (Medical Records Access
referred to.
25.
[188] and [194].
BC9604086 per Gaudron, McHugh JJ.
See Chan v Zacharia (1984) 154 CLR 178 at 198–9; 53 ALR
26.
10.
11.
12.
27.
481; 138 ALR 259 at 274; BC9604086 per Dawson, Toohey JJ
and at 289 per Gaudron, McHugh JJ.
JA.
Breen v Williams (Medical Records Access case) (1996) 186
28.
296; 287 ALR 22; [2012] FCAFC 6; BC201200621 at [183].
Dawson, Toohey JJ and at 289 per Gaudron, McHugh JJ; See
This remedy is at the beneficiary’s (or in this instance, the
also Blackmagic Design Pty Ltd v Overliese (2011) 191 FCR 1;
employer’s) election and subject to considerations of “appro-
276 ALR 646; [2011] FCAFC 24; BC201100702; J(LA) v J(H)
priateness”: see John Alexander’s Clubs Pty Ltd v White City
(1993) 102 DLR (4th) 177.
Tennis Club Ltd (2010) 241 CLR 1; 266 ALR 462; [2010] HCA
Breen v Williams (Medical Records Access case) (1996) 186
19; BC201003368; Keech v Sandford (1726) 2 White & Tud
CLR 71; 43 ALD 481; 138 ALR 259 at 289; BC9604086 per
LC 706; [1558] All ER Rep 230; (1726) Cas temp King 61;
Gaudron, McHugh JJ.
(1726) 25 ER 223; Keith Henry & Co Pty Ltd v Stuart Walker
Breen v Williams (Medical Records Access case) (1996) 186
& Co Pty Ltd (1958) 100 CLR 342 at 350; 32 ALJR 200;
BC5800140.
29.
30.
Barnes v Addy (1874) LR9ChApp 244; (1874) 43 LJ Ch 513;
O’Halloran v R T Thomas & Family Pty Ltd (1998) 45
BC200703851 at [111].
16.
NSWLR 262 at 272–9; 29 ACSR 148; 12 ACLC 1705;
Above, n 14, at 251–2 per Lord Selbourne, LC; see further on
(2007) 230 CLR 89; (2007) 236 ALR 209; [2007] HCA 22;
See J D Heydon & M J Leeming, Jacob’s Law of Trusts in
BC9805299.
31.
v Equity Trustees, Executors and Agency Co Ltd (1929) 42
Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296;
CLR 384 at 409 at 408–9; [1929] ALR 273; (1929) 3 ALJR
236; BC2900019; Furs Ltd v Tomkies (1936) 54 CLR 583 at
ABN AMRO Bank NV v Bathurst Regional Council (2014) 224
592; 9 ALJR 419; BC3600050; Consul Development Pty Ltd
FCR 1; 309 ALR 445; 99 ACSR 336; [2014] FCAFC 65;
v DPC Estates Pty Ltd (1975) 132 CLR 373 at 394; 5 ALR 231;
BC201404937 at [1066], subparagraph 4.
19.
49 ALJR 74; BC7500014; Industrial Development Consultants
Hospital Products Pty Ltd v United States Surgical Corp
Ltd V Cooley [1972] 2 All ER 162; [1972] 1 WLR 443;
(1984) 156 CLR 41 at 96–7; 55 ALR 417; 58 ALJR 587;
Canadian Aero Service Ltd v O’Malley (1973) 40 DLR (3rd)
BC8400480.
20.
21.
22.
42
See Warman International Ltd v Dwyer (1995) 182 CLR 544;
128 ALR 201 at 209; 69 ALJR 362; BC9506414; Birtchnell
287 ALR 22; [2012] FCAFC 6; BC201200621 at [555].
18.
Warman International Ltd v Dwyer (1995) 182 CLR 544; 128
ALR 201 at 217; 69 ALJR 362; BC9506414.
32.
Australia (7th edn) LexisNexis, 2006 at [1334].
17.
See Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR
296; 287 ALR 22; [2012] FCAFC 6; BC201200621 at [187];
(1874) 30 LT 4; (1874) 22 WR 505.
Barnes v Addy, Farah Constructions Pty Ltd v Say-Dee Pty Ltd
Warman International Ltd v Dwyer (1995) 182 CLR 544; 128
ALR 201; 69 ALJR 362; BC9506414.
See Blackmagic Design Pty Ltd v Overliese (2011) 191 FCR 1;
276 ALR 646; [2011] FCAFC 24; BC201100702.
15.
See Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR
CLR 71; 43 ALD 481; 138 ALR 259 at 275; BC9604086 per
Dawson, Toohey JJ.
14.
Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501;
[2001] VSCA 248; BC200108170 at [56]–[57] per Brooking
CLR 71; 43 ALD 481; 138 ALR 259 at 275; BC9604086 per
13.
Chan v Zacharia (1984) 154 CLR 178; 53 ALR 417; 58 ALJR
353; BC8400496 at [23].
417; 58 ALJR 353; BC8400496; See also Breen v Williams
(Medical Records Access case) (1996) 186 CLR 71; 43 ALD
Beach Petroleum NL v Abbott Tout Russell Kennedy (1999) 48
NSWLR 1; 33 ACSR 1; [1999] NSWCA 408; BC9907249 at
case) (1996) 186 CLR 71; 43 ALD 481; 138 ALR 259 at 289;
9.
ABN AMRO Bank NV v Bathurst Regional Council (2014) 224
Rosetex Co Pty Ltd v Licata (1994) 12 ACSR 779 at 784; 12
(2000) 50 IPR 74 at 79; [2000] NSWSC 979; BC200006344.
8.
ABN AMRO Bank NV v Bathurst Regional Council (2014) 224
FCR 1; 309 ALR 445; 99 ACSR 336; [2014] FCAFC 65;
commencement of civil proceedings for breach of such a duty.
News Ltd v Australian Rugby Football League Ltd (1996) 64
371.
33.
See Warman International Ltd v Dwyer (1995) 182 CLR 544;
FCR 410; 139 ALR 193; 21 ACSR 635; BC9604667
128 ALR 201 at 208 and 212; 69 ALJR 362; BC9506414;
Pilmer v Duke Group Ltd (in liq) (2001) 207 CLR 165; 180
Birtchnell v Equity Trustees, Executors and Agency Co Ltd
ALR 249; [2001] HCA 31; BC200102754.
(1929) 42 CLR 384 at 408–9; [1929] ALR 273; (1929) 3 ALJR
Australian Securities and Investments Commission v Citigroup
236; BC2900019 per Dixon J; Consul Development Pty Ltd
Global Markets Australia Pty Ltd (No 4) (2007) 160 FCR 35;
v DPC Estates Pty Ltd (1975) 132 CLR 373 at 394–5; 5 ALR
241 ALR 705; [2007] FCA 963; BC200704944.
231; 49 ALJR 74; BC7500014 per Gibbs J.
employment law bulletin May 2015
34.
35.
36.
37.
38.
Warman International Ltd v Dwyer (1995) 182 CLR 544; 128
39.
ALR 2011 at 212; 69 ALJR 362; BC9506414 and the foregoing
cases; Hospital Products Pty Ltd v United States Surgical Corp
(1984) 156 CLR 41 at 108; 55 ALR 417 at 454; 58 ALJR 587;
BC8400480; Regal (Hastings) Ltd v Gulliver [1967] 2 AC 134;
40.
[1942] 1 All ER 378; Boardman v Phipps [1967] 2 AC 46;
[1966] 3 All ER 721; [1966] 3 WLR 1009.
Dart Industries Inc v Décor Corporation Pty Ltd (1993) 179
CLR 101 at 111; 116 ALR 385; 67 ALJR 821; BC9303559.
42.
Warman International Ltd v Dwyer (1995) 182 CLR 544 at 55;
128 ALR 201; 69 ALJR 362; BC9506414.
Warman International Ltd v Dwyer (1995) 182 CLR 544; 128
ALR 201 at 210 and 212; 69 ALJR 362; BC9506414.
Chan v Zacharia (1984) 154 CLR 178 at 204–5; 53 ALR 417;
58 ALJR 353; BC8400496.
employment law bulletin May 2015
Cook v Deeks [1916] 1 AC 554 at 565; [1916] All ER Rep 285;
(1916) 27 DLR 1; 114 LT 636.
Timber Engineering Co Pty Ltd v Anderson [1980] 2 NSWLR
488 at [11].
41.
CMS Dolphin Ltd v Simonet [2001] All ER (D) 294 (May);
[2001] 2 BCLC 704; [2002] BCC 600.
Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296;
287 ALR 22; [2012] FCAFC 6; BC201200621 at [243].
43.
CMS Dolphin Ltd v Simonet [2001] All ER (D) 294 (May);
[2001] 2 BCLC 704; [2002] BCC 600.
44.
Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296;
287 ALR 22; [2012] FCAFC 6; BC201200621 at [243]–[248],
[513]–[529], [553]–[559]
43
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employment law bulletin May 2015