EDITOR'S NOTE: The High Court overturned Cardinal George Pell's conviction for historic child sex offences in a judgment ruling handed down April 7, 2020. In a unanimous decision all seven High Court judges found Victoria's Court of Appeal should not have upheld Pell's conviction It found the evidence could not support a guilty verdict.

Nigh on 40 years ago at Sydney Uni, I enjoyed studying a few law subjects. There was a pleasing purity to legal principles in such things as contracts and torts. The problem was when it came to exceptions to those principles, and then exceptions to those exceptions, and THEN – I shit you not – exceptions to the exceptions to the exceptions to the exceptions. When the principle of one torts case had exceptions to the power of five, I knew the law was not for me.

Former Wallaby Peter FitzSimons wasn't missing Israel Folau after Australia thumped the All Blacks.

All of which is a long-winded way of saying that though I have a rough grasp of legal concepts – when they are not much more complicated than the propulsion system of Fred Flintstone’s car – don’t bet the sheep-station on me.

But . . .

I still reckon a case decided in the Federal Court on Tuesday has major implications for the Israel Folau case!

See, the case decided involved Dr Gary Rumble, who was a consultant for the legal firm of HWL Ebsworth, which over the last decade has been doing a lot of work for the likes of the Department of Defence and the Department of Veterans’ Affairs among others. The case turned on Dr Rumble publicly criticising the government and those departments for failing to implement the recommendations he made in his report on historical sexual abuse in the Australian Defence Force.

In the summation of the case and his findings, Justice Nye Perram, as reported by the Herald’s Michaela Whitbourn, “said Dr Rumble had ‘irritated’ the firm's managing partner, Juan Martinez, by making ‘a number of public remarks’ to the effect that ‘the government was not doing enough to implement the inquiry’s recommendations’.”

Israel Folau has taken Rugby Australia to court for wrongful dismissal. Janie Barrett

Very broadly, after it happened the first time, Dr Rumble was told by the law firm to pipe down, and stop criticising the entities that the law firm depended on for their income stream and . . .

And yes, as I told you, it already sounds familiar to the Folau case, but wait, it’s about to be eerily similar.

For Dr Rumble persisted in his damaging criticisms. Despite the firm implementing a policy, “requiring its partners and staff not to engage in criticisms of the firm’s clients without the permission of Mr Martinez,” in 2016, Dr Rumble penned a piece for The Canberra Times bitterly attacking the government again, and was shortly thereafter sacked for his trouble.

The action taken by Dr Rumble was for adverse action – unfair dismissal to you and I – and he maintained “the firm had discriminated against him on the basis of his political opinion.”

Justice Perram firmly and formally disagreed in his judgment, concluding Dr Rumble “was not terminated because of his political opinion, as to which the firm was at least indifferent and quite possibly in fact sympathetic. It terminated him because he repeatedly disobeyed a reasonable direction to cease from criticising the firm’s clients. In truth, Mr Martinez did not care about Dr Rumble’s views on the government’s implementation of his recommendations . . . What he did care about was the earning of fees and the elimination of insubordination.”

Bingo.

The Federal Court will, of course, weigh up the Folau case without fear or favour, and certainly won’t be influenced by the view of one dickhead from the Herald who only ever got passes at legal subjects anyway. And unlike those who still carry on that despite his conviction George Pell is innocent – but don’t get me started – I will respect the process and their judgment when it comes down.

But in the meantime, the parallels are fascinating, yes? And I am not the only one, I assure you, who thinks the judgment has enormous significance to the Folau case, but I’ll get to my own star witness shortly.

In the case of Rugby Australia, who can doubt its employee Israel Folau acted in a manner that caused them financial harm when he first put up his homophobic posts? No ifs, no buts, that is demonstrably true in my view and I am told Rugby Australia will have no trouble proving it.

Despite that, they signed Folau to another four-year contract, obviously telling him not to express the same views as previously. Again, that will be easily demonstrated. Like Dr Rumble, however, Folau did it again, and was dismissed.

When it came down to it, the Federal Court found in the case of Dr Rumble that the employer had every right to terminate the contract of an employee who was putting into the public domain comments that would hurt that employer, after that employee had been warned not to do so. They didn’t need to weigh up the rights or wrongs of the comments, or even a human right – under an asserted freedom of speech etc – to say them.

He had been told not to say them, because it was likely to hurt the firm’s income stream. He said them. He was sacked. The court upheld the decision. Case closed.

And though that is the limit of my legal understanding, stay with me. For I would now like to call to the stand, for the purposes of this column only, Max Kimber SC, who ran the successful case for Ebsworth.

“I believe this case has real implications for the Folau case,” the gun barrister says flatly. “This case reaffirms that an employee is obliged to act in the best interest of the employer, and if they don’t, the employee can be dismissed.

“The Federal Court took the view that the employee is there as an agent and representative of the employer, and is required to act in their best interests. They didn’t sack Rumble because they disagreed with what he said. It was enough to prove that his actions risked hurting their business. So, the likely implications are that if the Waratahs and Rugby Australia can show that the Folau posts hurt their business, and that he too was warned, then based on the Rumble case, the Federal Court could well rule against Folau.”

Thank you, Max Kimber SC, you may stand down, with my thanks.

Not case closed though. The Federal Court will decide the case on its merits, did I mention? But very interesting!