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- Notable Unreported Decision
Knight v State of Queensland QSC 86
SUPREME COURT OF QUEENSLAND
Knight v State of Queensland & Ors  QSC 86
STATE OF QUEENSLAND
DARYN ALLAN PRIOR
No 448 of 2017
Supreme Court at Cairns
DELIVERED EX TEMPORE ON:
15 March 2019
15 March 2019
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – where the defendants brought an application to strike out various paragraphs of the plaintiff’s pleadings – where the plaintiff’s employment had been terminated following an investigation that involved the five defendants – where the contentious paragraphs claimed the defendants had a duty of care in the context of ensuring the plaintiff was investigated professionally and fairly, and this relied upon the law extending a cause of action in negligence in a way for which no authority presently exists – whether this was a proper cause of action
Industrial Relations Act 1999 (Qld) s 74
Uniform Civil Procedure Rules 1999 (Qld) r 171
Brookfield Multiplex Limited v Owners (2014) 254 CLR 185,
Govier v The Uniting Church in Australia Property Trust (Q)  QCA 12
State of New South Wales v Paige  60 NSWLR 371
C Hartigan for the Defendants
Plaintiff Mr Knight appeared self-represented
Crown Law for the Defendants
HIS HONOUR: This is an application for the striking-out of various paragraphs of the plaintiff’s further amended statement of claim. The application is brought on behalf of five defendants, the first defendant being the State of Queensland and the others being agents or employees of the first.
The context in which the application is brought is that the plaintiff was principal of a high school. He was suspended on full pay, it appears as a result of some information that became known, the accuracy of which was presumably and remains presumably the subject of dispute. In any event, there followed an investigation by the department, the upshot of which was that the plaintiff’s employment was terminated.
The further amended statement of claim makes a variety of allegations relating to the way in which he was treated during the investigation process and the investigation process itself.
As regards the first defendant, complaints include: that the investigation was excessively long; that the plaintiff was not made aware of allegations against him before being required to attend for interview by the Ethical Standards Unit; being prevented from contacting colleagues or former colleagues and accessing computer and other records and in consequence being denied access to evidence which he asserts would have supported him; being subjected to an investigation process that was selective and adduced evidence only from the complainant teachers but not from other key witnesses and relied heavily on hearsay evidence and did not give him adequate time to respond.
As regards the second defendant, who is said to be the Acting Assistant Director-General or at least at the relevant time is said to have been so, the pleading includes allegations: that the second defendant gave no evidentiary weight to sworn declarations; made findings based on evidence that did not exist; made findings affected by actual apprehended bias; incorrectly interpreted evidence and the plaintiff’s show cause response; incorrectly favoured unsworn evidence to sworn evidence; acted on hearsay regarding students; acted on an investigation report that was compiled as a result of selective and narrow interview process; disregarded the failure of investigators to adduce evidence from key witnesses; and in an unspecified way, breached the rules of natural justice in relation to the length and scope of the investigation and favoured the investigation process and the conduct of the investigators.
As the pleadings’ allegations relate to the third defendant, who appears to have been the Ethical Standards Unit senior investigator, its particulars pleaded include: conducting a selective investigative process in which key witnesses were not interviewed; the rules of evidence were ignored; reliance was placed on hearsay evidence; investigation techniques involved deceiving the plaintiff and witnesses; requiring the plaintiff to participate in an interview that was conducted contrary to the rules of natural justice and procedural fairness; and providing the fifth defendant with a section of the plaintiff’s witness statement to in turn coerce the fifth defendant to alter his account.
In respect of the fourth defendant, who was said to have been the regional human resources manager who authored certain relevant correspondence, it is alleged the fourth defendant sent an email demonstrating actual bias including a statement, “Things are not going well with Craig” and alluding to some information that is described as fabricated, then subsequently engaged in conversations with the recipient of the email demonstrating actual bias.
Finally, as to the fifth defendant, who is said to have been a classroom teacher who had been under the plaintiff’s supervision, the particulars complain that: the third defendant provided the fifth defendant with an extract of the plaintiff’s statement to investigators; requested the fifth defendant to provide a new version of events; and the fifth defendant did so.
All of this conduct is characterised in the further amended statement of claim as conduct manifesting a breach of a duty of care. The duty is articulated in slightly different ways in respect of each defendant.
In respect of the first, its pleading is that the duty of care involved ensuring the investigation was conducted in a timely and reasonable manner in accordance with natural justice and compliance with relevant legislation, free of bias and using investigative techniques free of conspiring conduct. The conduct complained of is said to manifest a breach of that duty.
In respect of the second defendant, it is said that the duty of care owed was to ensure that the investigation was conducted in a similar vein as described in respect of the first defendant.
The duty of care as described relating to the third defendant is a duty to ensure that the investigation was conducted in a manner in which the investigators and witnesses were ethical in their conduct in a way which withstands scrutiny and is transparent, in ensuring provisions, directives, guidelines and procedures required by law were observed and which guaranteed the plaintiff natural justice and fair treatment.
The fourth defendant’s duty of care is pleaded as being to not taint the investigation with actual bias.
The fifth defendant’s duty of care is said to be honest and truthful in interactions with the third defendant and to behave lawfully.
The pleaded relief is: special damages in respect of legal fees accrued; special damages for lost wages; special damages for loss of superannuation; exemplary damages and aggravated damages. The foundation for the latter is obviously built upon the character of the behaviour at which the former first three sets of relief are targeted.
The unifying theme of the pleading as against all five defendants is that in various ways they breached their duty of care in the context of ensuring that the plaintiff was investigated professionally and fairly. Inevitably, the point of this is to contend that had there been no breach, and if the defendants had acted in accordance with their pleaded duties, the plaintiff would not have been dismissed and would not have suffered the loss claimed.
The difficulty with the pleading of the case is that it appears to rely upon the law extending a cause of action in negligence in a way for which no authority presently exists. In Brookfield Multiplex Limited v Owners (2014) 254 CLR 185, the High Court made plain that the law of negligence ought not be extended into new fields without proper consideration of the salient features of the relationship between the players and of the case itself. It explained, in considering the salient features, the determinative consideration is vulnerability. As was observed by Hayne and Kiefel JJ at 210:
“[V]ulnerability is concerned with a plaintiff’s inability to protect itself from the defendant’s want of reasonable care, either entirely or at least in a way which would cast the consequences of loss on the defendant.”
The salient features here include the employee/employer relationship. The reality is that there already exists protection against vulnerability of the kind now relied upon to effectively extend the law of negligence into a new field. That protection is found, or at least was found at the relevant time in the Industrial Relations Act 1999 (similar protections extend in the current legislation). That Act contemplates relief for an employee who has been unfairly dismissed; that is, if the dismissal is harsh, unjust or unreasonable or for an invalid reason. If what the plaintiff complains of in his pleaded case is correct, his would appear to have been an unfair dismissal. Remedies under the Act include reinstatement, reemployment or compensation if reinstatement and reemployment are impracticable.
Section 74(2) of the Act provides for the application of such relief:
“The application must be made within –
- (a)21 days after the dismissal takes effect; or
- (b)a further period the commission allows on an application made at any time.”
There is no affidavit evidence before me about the history of any proceeding or decision not to take a proceeding, under the Industrial Relations Act 1999. It is tolerably clear such a proceeding could have been initiated. The plaintiff from the bar table explained that in fact on legal advice the decision was taken not to initiate such action because it would have been out of time. He makes the point from the bar table he did not learn of the matters, or some of the matters now complained of in his pleading, until after two years had gone by when there was a different proceeding before QCAT.
The reality though remains that he had a protection to be exercised should he have chosen to do so, and was not vulnerable in the sense described above. If his case is correct, he had to have known that he was being wrongly dismissed. Had the wrongful dismissal proceeding been initiated by him, doubtless that process would have flushed out that which he later learned through the QCAT process.
Further to all of that, if there be any merit in his position about not having been in a position to comply with the 21 day limitation period, section 74(2)(b) plainly contemplates the commission may permit a further period, in order to allow an application to be made at any time. Inevitably, the exercise of that discretion would be exercised having regard to ordinary judicial decision making and presumably weigh up the reasons provided for why it was not made earlier, for example, considering whether or not reasonable inquiry could have revealed evidence which then raised an awareness that a cause of action existed.
The parties have helpfully referred me to a number of cases. The most significant appears to be State of New South Wales v Paige  60 NSWLR 371 where it was held, in short, that a duty of care of the kind now asserted did not exist. Spigelman CJ observed in support of such conclusion that the existence of such a duty was incompatible with duties in a statutory scheme in New South Wales under the Teaching Service Act 1980, was not coherent with the law of employment by which the parliament has provided remedies for employees who have been allegedly unfairly dismissed, and was not coherent with administrative law (see  to ).
Govier v The Uniting Church in Australia Property Trust (Q)  QCA 12 makes it plain that in Queensland there would be no reason why a similar approach to that in Paige would not be taken in a similar case. I was also referred to Hayes & Ors v State of Queensland  QCA 191 and Robinson v State of Queensland  QSC 165. Of them, it is sufficient to add for present purposes that different considerations are in play where personal injury because of negligence in the work place is being alleged.
The upshot then is that the pleaded foundation of the further amended statement of claim is a non-existent cause of action. It follows that this application to strike out the relevant paragraphs ought succeed. I will hear the parties further as to final orders, including as to costs.
HIS HONOUR: In light of the aforesaid reasons and the substance of what has been pleaded to date, there is reason to doubt whether the plaintiff can, on a re-pleading of his case, identify a proper cause of action. He has indicated a desire to try. It may be, on reflection or on receipt of advice, he elects not to. Accordingly I propose, in the orders to be made, to include orders contemplating the self-executing dismissal of this action if he fails to re-plead the case within a certain time. As for the costs of today, it is not in dispute that they would follow the event.
My orders then are:
1. That the following paragraphs of the plaintiff’s further amended statement of claim filed on 30 August 2018 be struck out pursuant to rule 171 of the Uniform Civil Procedure Rules 1999:
(a) in respect of the first defendant, paragraph 2.6 to 2.7 inclusive;
(b) in respect of the second defendant, paragraphs 3.6 to 3.17 inclusive;
(c) in respect of the third defendant, paragraphs 4.5 to 4.13 inclusive;
(d) in respect of the fourth defendant, paragraphs 5.6 to 5.11 inclusive; and
(e) in respect of the fifth defendant, paragraphs 6.3 to 6.11 inclusive.
2. That the plaintiff pay the defendants’ costs of this application, to be assessed if not agreed, on the standard basis.
3. (a) If the plaintiff intends to continue with his claim, he must do so by filing and serving a further amended statement of claim by no later than 4 pm on 15 April 2019; and
(b) if he fails to do so then effective at that time and date the claim is dismissed and the plaintiff ordered to pay the defendants’ costs, to be assessed if not agreed, on the standard basis.
I have signed the amended draft accordingly, placing it with the papers.
- Published Case Name:
Knight v State of Queensland & Ors
- Shortened Case Name:
Knight v State of Queensland
 QSC 86
15 Mar 2019
- White Star Case:
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QSC 86||15 Mar 2019||Defendants' application to strike-out paragraphs of the statement of claim granted; plaintiff directed to file and serve a further amended statement of claim within 1 month, failing which the claim will be automatically dismissed: Henry J.|