NEW SOUTH WALES COURT ISSUES JUDGEMENT FOR ANTHONY KEVIN DAYNES V/S I-MED CENTRAL QUEENSLAND CASE

Australia, Aug. 11 -- New South Wales Land and Environment Court issued text of the following judgement on July 11:

1. BELL CJ: This matter involved an appeal and cross-appeal from a decision of Cavanagh J (the primary judge) in Daynes v I-MED Central Queensland Pty Ltd [2024] NSWSC 1064 (PJ or primary judgment). The appeal was heard concurrently with applications for leave to appeal and cross appeal from the primary judge's decision in respect of costs: Daynes v I-Med Central Queensland Pty Ltd (No 2) [2024] NSWSC 1313 (CJ or costs judgment).

2. The proceedings arose out of the decision of the Respondent and Cross Appellant, I-MED Central Queensland Pty Ltd (I-MED), summarily to dismiss the Appellant and Cross Respondent, Dr Anthony Kevin Daynes (Dr Daynes), from his position as a senior radiologist at I-MED's radiology clinic in Cairns (the Cairns Clinic).

3. The summary dismissal of Dr Daynes followed allegations of bullying and victimisation of one co-worker, Ms Odgers, and the alleged sexual harassment of another, Ms Turner. Both allegations were the subject of a report by an independent consulting firm named Workdynamic Australia (Workdynamic), commissioned by I-MED: PJ [4], [26]. The report was adverse to Dr Daynes and he was summarily dismissed on 11 May 2022, having been suspended during the pendency of an inquiry leading to the report.

4. The primary judge held that I-MED was not entitled summarily to dismiss Dr Daynes and that his dismissal entailed a repudiatory breach of his contract of employment which justified Dr Daynes in terminating that contract, and entitled him to an award of damages. Dr Daynes sought damages in the sum of $4,308,164.38 but was held to be only entitled to recover the last 11 weeks and 5 days of his fixed term employment contract in addition to an amount representing the three months' notice period under his contract of employment: PJ [263]. That amounted to $302,769.23, plus interest of $45,410.73 (PJ [267]), totalling $348,179.96.

5. he following two key findings of the primary judge were subject to challenge by I-MED and Dr Daynes respectively:

1) that I-MED's summary dismissal of Dr Daynes was unlawful (PJ [6], [221]);

2) that Dr Daynes' damages were $348,179.96 (PJ [268]).

6. In holding that the summary dismissal was unlawful, the primary judge was not satisfied that Dr Daynes performed a pelvic thrust towards Ms Turner at a staff Christmas party on 11 December 2021 and thereby had engaged in conduct of a sexual nature. His Honour was also not satisfied that Dr Daynes had failed to comply, in breach of contract, with certain policies in I-MED's Workplace Policies Handbook (the Handbook) relating to victimisation and bullying.

7. The primary judge initially indicated that I-MED should pay Dr Daynes' costs but varied this following an application made after the delivery of reasons which drew the Court's attention to the fact that certain offers of compromise had been made. While his Honour rejected an argument that the proceedings should have been commenced in the District Court with costs consequences under the Uniform Civil Procedure Rules 2005 NSW (UCPR) because Dr Daynes was awarded less than $500,000, the primary judge held that the rejection by Dr Daynes of a Calderbank offer of 28 June 2024 made by I-MED, was unreasonable. This led his Honour to ordering that:

1) I-MED pay Dr Daynes' costs as agreed or assessed up to and including 28 June 2024; and

2) Dr Daynes pay I-MED's costs as agreed or assessed from 29 June 2024.

8. Both parties seek leave to appeal from the costs judgment. These applications are dealt with at [171]-[209] below.

Brief Background

9. It is convenient to summarise the background facts in relation to Dr Daynes' professional history and the Cairns clinic. The two overlap.

10. Dr Daynes is 73 years old and worked as a radiologist in Cairns for 35 years between 1987, when he obtained his specialist registration, and May 2022, when he was summarily dismissed from his position as senior radiologist at I-MED where he had been employed since 2019: PJ [7]-[8].

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197f2130ea2cf895045aca40)

Disclaimer: Curated by HT Syndication.