Last Friday, 13 December 2013, the High Court granted special leave to appeal in three cases.
The first is Commonwealth Bank of Australia v Barker. In that case Mr Barker was employed by the Bank as an executive manager. His contract of employment entitled the Bank to terminate his employment without cause on four weeks’ written notice. His position became redundant. In the letter informing him of this redundancy, the Bank told Mr Barker its preference was to redeploy him to a suitable position within the Bank. Ultimately, however, the Bank terminated his employment. Mr Barker sued the Bank for breach of contract, and for misleading and deceptive conduct. He argued that certain written policies of the Bank dealing with redundancy were incorporated into his contract of employment, and that the Bank had breached those policies. The primary judge held that the policies were not incorporated into his contract of employment. However, the primary judge found that the contract of employment contained an implied term of mutual trust and confidence. His Honour also found that the Bank had been almost totally inactive in complying with its redundancy policies in relation to Mr Barker, and that this was a serious breach of the implied term of mutual trust and confidence which sounded in damages. His Honour awarded Mr Barker damages of $317,000 for loss of the opportunity to be redeployed to a suitable position within the Bank. The main issue in the appeal is whether or not the implied term of mutual trust and confidence forms part of the common law of Australia.
The second case is Lee v The Queeen. The appellants in this appeal were the unsuccessful appellants in Lee v The Queen, in which the High Court upheld orders made in favour of the NSW Crime Commission that the appellants be compulsorily examined under the Criminal Assets Recovery Act 1990, even though the subject matter of the examinations overlapped with the subject matter of the criminal proceedings. In this latest appeal, the Lees challenge the dismissal of their appeals against conviction by the NSW Court of Criminal Appeal. The main ground of general importance is the question of whether or not there had been a miscarriage of justice because a transcript of the evidence given before the Crime Commission had been released, unlawfully, to the DPP prior to the trial.
The third case is Sidhu v Van Dyke. In this case Van Dyke claimed that Sidhu, with whom she was in a romantic and sexual relationship over several years, made clear and unambiguous promises to her on several occasions that a property known as Oaks Cottage was her home and that he would transfer it to her (or procure its transfer to her). She also claimed that she acted reasonably in reliance on those promises to her detriment, including by performing certain tasks for the benefit of Sidhu and by remaining in part-time employment. Van Dyke commenced proceedings claiming an order that Oaks Cottage be transferred to her, or a declaration recognising her interest in Oaks Cottage by way of constructive trust or charge, or an order for the payment of equitable compensation to her. The primary judge held that the effect of the evidence given by Van Dyke during cross-examination was that it was entirely possible that Van Dyke would have remained living on the property, carrying out tasks on the property (even if not to the extent of the work she in fact carried out) and working part-time, whether or not the promises had been made. According to the primary judge, that made it impossible to find that she was acting in reliance on the promises to her detriment. The NSW Court of Appeal, applying a number of English decisions, held that there was a presumption of reliance which had not been displaced by Van Dyke’s evidence, and that it was not necessary for the plaintiff to prove that “but for” the promises she would not have acted in the way she did; it was sufficient that it was a cause, even if not the sole cause. In addition, the Court of Appeal held that the measure of compensation was not the detriment suffered by Van Dyke, rather it was the value of the unfulfilled promises. Both of those issues fall for determination in the appeal to the High Court.