Case: Pelechowski v NSW Land &amp; Housing Commission [2000] FCA 233
Outcome: followed
The respondents have in effect submitted that in determining whether s 60(4) applies to the proceedings, the proper approach is to regard the proceedings as stemming from the termination of the applicant's employment. The respondents rely upon Pelechowski v NSW Land and Housing Commission [2000] FCA 233 in support of the proposition that s 60(4) does not apply to such proceedings . In Pelechowski , a judicial registrar had dismissed an application by the applicant for relief, finding that there was no substance in the application and that the applicant had been guilty of serious misconduct. Madgwick J concluded that proceedings for unlawful termination of employment under the WRA did not fall within the Cox test and thus s 60(4) did not apply, because an essential element of the proceeding was that one's economic relations with one's former employer had been disrupted and property rights were at the heart of such proceedings. His Honour's reasons were delivered ex tempore. His Honour noted that the applicant had principally sought reinstatement, that the relief sought was essentially of an economic nature, and that the application did not appear to have made any claim for compensation in the way of damages for personal injury. I am bound to follow this judgment unless I conclude it is plainly wrong. I have not reached that view. 43 Interestingly, in Pelechowski , the applicant had been an employee of the Department of Housing. His Honour noted that "[t]hose economic relations [with one's former employer] depend upon contract, or perhaps in the case of a public servant, a statutory relationship, but nevertheless of a contractual or quasi-contractual kind, that is to say, property rights are at the heart of the proceedings" (at [5]). His Honour's view therefore was that insofar as termination proceedings were concerned, no distinction was to be made between those employed pursuant to statute and other employees in the context of s 60(4). 51 The respondents were unable to point to any authorities concerning s 60(4) in which a question concerning or relating to the termination of employment arose in the context of proceedings for judicial review. In any event, I am satisfied that the judicial review proceedings the applicant has brought bear the same general character as the proceedings considered in Pelechowski and Daemar . In my opinion, all the "decisions" which the applicant seeks to challenge (leaving aside whether they are amenable to review) directly arise from or are incidental to the termination of his employment and do not fall within the exception in s 60(4). 52 As noted at [38], the respondents submit that certain causes of action which the applicant may be seeking to raise in one or both of the two proceedings and which may fall within s 60(4) should be dealt with in accordance with the respondents' motions (that is, that they be struck out or dismissed). The ability for the applicant to continue these causes of action also depends upon these actions being severed from those parts of the proceedings which do not fall within s 60(4). I propose to deal with those causes of action on the assumption that they can be treated, individually, as falling within s 60(4), as the respondents' submissions appeared to accept. I am satisfied that the applicant has no reasonable prospect of successfully prosecuting that part of the proceedings concerning those causes of action and that judgment should be given for the respondents. 53 One of these potential actions is defamation. The pleadings filed by the applicant refer in a general sense to damage to his character and reputation and to "defamation", as well as more specifically in relation to the contents of the reports and statements made by the respondents' solicitor in Court. As the respondents have submitted, the applicant has not particularised the statements, other than in the case of the alleged statements of the solicitor in relation to which he has provided more detail. He has not particularised the effect of any statements on his reputation. As the respondents have submitted, even if statements made by the solicitor were defamatory, the express defence of absolute privilege may well apply. I am satisfied that to the extent that the applicant has raised a cause of action in defamation there is no reasonable prospect of successful prosecution.