Case: Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336
Outcome: discussed
The appellants now appeal to this Court. Essentially the duress alleged was the threatened and actual deprivation of Ms Wills of weekend work. The appellants attack some of his Honour's fact finding. They say that even accepting the facts as found, a case of contravention was not made out. They say there was a misunderstanding of the principles laid down in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 at 359-362. They say the reasons given by his Honour were inadequate. 4 Ms Wills started work at the Tavern on 14 February 2005. At the time she was nineteen. She had commenced studying a course of business management at the University on a full time basis in 2004 and was still engaged in those studies. She worked predominantly as a waitress in the restaurant but occasionally in the kitchen. 5 Up until August 2006 Ms Wills worked generally three or four dinner shifts during the week and also on weekends when she was regularly rostered to work both days. She was almost always rostered to work on the Sunday lunch shift. The work roster at the Tavern for each week was written on a sheet of paper displayed on a wall between the kitchen and the bar, usually one or two weeks in advance. The employee responsible for compiling the rosters was Mr Michael Taylor. He was the head chef and had worked at the Tavern for over ten years. He was Ms Wills' immediate superior. She often spoke with Mr Taylor about the number of shifts per week that she wanted to work. She told him she needed to work four or five shifts per week or approximately fourteen hours in order to meet her financial commitments. 71 The appeal grounds can be summarised as follows: &#8226; His Honour erred in finding that duress was applied in connection with an AWA (Grounds 1-8, 11); &#8226; His Honour misapplied the principles laid down in Briginshaw v Briginshaw at 359-362 (Ground 9); &#8226; Findings concerning Ms Wills being a "ringleader" and that her work hours changed "dramatically" were not open (Ground 10). Other errors were alleged in a "Schedule of Fact Finding Errors"; &#8226; His Honour failed to properly consider and deal with the appellants' submissions (Ground 12). Ground 13, alleging that the penalties were excessive, was not pursued. 72 There were ten matters complained of under this heading. 73 "Pressure" not applied in connection with AWA . Plainly the evidence established that Mr Hibberd was keen to have AWAs signed by employees, especially because he had discovered that he did not have a valid AWA regime existing. All his dealings with Ms Wills referred to by his Honour were directed towards her signing an AWA, indeed they were concerned with little else. Prior to the AWA issue Ms Wills had virtually no contact with Mr Hibberd. The change to her weekend rosters was obviously intended to disadvantage her in the context of her resistance to signing an AWA. It is hard to see how his Honour could have come to any other conclusion. 74 It was submitted before his Honour that the respondent had to establish that the conduct of Mr Hibberd amounted to a "compulsion of the will of Ms Wills such as to have the effect of giving her no other practical alternative than to sign the AWA". There had to have been an "overbearing of the will". 85 His Honour said: 32 I accept, as both parties submitted, that the principles applicable in Briginshaw v Briginshaw and Another [1938] HCA 34 ; (1938) 60 CLR 336 ("Briginshaw") should be applied to allegations such as duress. I note that, not surprisingly, the Respondents sought to place the definition of duress, as it were, at the highest level. It was submitted (First and Second Respondents' outline of closing submission) that "clear, cogent, strong and strict proof is required" (paragraph 1). 33 The authority cited in support of that proposition as a footnote was the observation of Ryan J in Canturi at [44]. What Ryan J actually said at paragraph [44] was: I accept that the onus of proving duress remains on the applicants and it is one which, having regard to the seriousness of the alleged contravention, has to be proved to the reasonable satisfaction of the Court in accordance with Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336. 34 In my view it is preferable to approach an issue such as a finding of duress in accordance with what are well established principles. To seek to elevate duress to any particular level of significance is only likely to cloud the issues. While I bear well in mind the observations of the Courts as to the hesitations that should be borne in mind in considering issues both of duress generally and even more so of economic duress, it seems to me that in the ultimate the Court is faced in this instance with an alleged breach of the terms of a subsection of the Act, which is required to be proved to the satisfaction of the Court in accordance with Briginshaw principles. 86 Later at [295] his Honour said that he was satisfied of "all the above matters" (ie the matters in [292]-[294] quoted at [70] above) "to what Ryan J in Canturi described as 'the requisite degree' when referring to Briginshaw principles". 87 The complaint of the appellants on the appeal centred on his Honour's statement that the appellants "sought to place the definition of duress at its highest level" (at [32]). This was said by the appellants to manifest a misunderstanding "of the application of the Briginshaw principle to the case before him". 88 I think that all his Honour was conveying was that the appellants had submitted, as might have been expected, that duress was a serious allegation. It is inherent in the forensic process that a defendant will stress the seriousness of the charge alleged, be it civil or criminal. As counsel for the respondents submitted, correctly (and, in the light of the recent Full Court decision to be discussed hereafter, presciently), the principle in Briginshaw is simply that serious misconduct is not lightly to be found because it is not ordinarily engaged in by members of the community. 89 In any event, it may be that, if anything, his Honour's application of Briginshaw was too favourable to the appellants. I say that because the true nature and effect of Briginshaw has recently been the subject of detailed analysis by Branson J (with whom French and Jacobson JJ agreed) in Qantas Airways Ltd v Gama [2008] FCAFC 69. 90 Branson J explained that expressions like "the Briginshaw standard" and "the Briginshaw test" should be avoided because of their tendency to mislead. Her Honour cited (at [124]) the well known passage from the judgment of Dixon J in that case at 361-362: Fortunately... at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. Her Honour emphasised at [125]-[126] that Dixon J was speaking of "allegations", that is to say individual allegations of material fact, rather than, for example, causes of action. Nor did Dixon J identify any particular standard; rather that the tribunal of fact, before accepting the truth of evidence of a particular allegation, should give consideration to the nature of the allegation and the likely consequences which follow should it be accepted. 94 Applying that approach to the present case, it may be doubted whether the particular allegations of fact in this case, for example that Mr Hibberd or Ms Bercheree said or did such and such or had such and such intention, really involve allegations of particular gravity. They are to be contrasted with allegations of adultery ( Briginshaw ) or fraud ( Rejfek ). The AWA regime is, or was at the time, part of a complex statutory industrial law system. Knowledge of its full ramifications amongst all employers is not self-evidently a circumstance on which courts can safely rely. Breaches of the law may well occur in ignorance. Moral opprobrium does not necessarily attach. Of course, particular factual allegations in AWA duress cases may involve allegations of reprehensible behaviour; see, for example, the conduct in Jordan . While the conduct alleged against Mr Hibberd certainly warranted the learned Magistrate's criticisms, I doubt if it could be characterised as conduct inherently unlikely to be engaged in by employers. 95 In the light of the Full Court's decision in Gama one does not say: "Contravention of s 400(5) is a serious matter; therefore the Briginshaw standard applies". Rather, the fact finder must look at the particular factual allegations. They can vary infinitely. Before reaching a finding which accepts those allegations as true (the onus of course being on the applicant), the fact finder must, amongst other things, take into account the gravity of the particular allegations: s 140(2)(c). Once the facts are fully found, including the making of inferences from primary fact, the question whether those facts fall within the statutory prescription of applying duress in connection with an AWA is a question of law: Hope v City of Bathurst [1980] HCA 16 ; (1980) 144 CLR 1 at 7. 96 Gama is an important decision, not least for throwing light on an intriguing phenomenon in Australian professional legal culture. The resilience of the common law is such that in practice the Evidence Act is often overlooked. In my own experience, in the period of well over a decade since the Evidence Act was introduced Briginshaw is without fail cited in witness actions with the possible exception of patent infringement cases but I do not recall ever being referred to s 140. This is not to say it never happens, but a search of the Federal Court internal judgment database reveals only six decisions, apart from Gama , (including one in the Full Court) in which the covering list of legislation and cases cited refers to both s 140 and Briginshaw .