Applicant ACD13/2019 v Stefanic

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FEDERAL COURT OF AUSTRALIA

Applicant ACD13/2019 v Stefanic [2019] FCA 548

File numbers: ACD 13 of 2019
Judge: GRIFFITHS J
Date of judgment: 18 April 2019
Catchwords:

PRACTICE AND PROCEDURE – application for interim relief under s 15 of the Public Interest Disclosure Act 2013 (Cth) (PID Act) seeking a stay to prevent the imposition of any sanction from an ongoing Code of Conduct investigation – whether the applicant has a prima facie case that any sanction or other action relating to the investigation would constitute reprisal under s 13 of the PID Act – no prima facie case – application for interim relief refused

STATUTORY INTERPRETATION – meaning of “external disclosure" under s 26 of the PID Act – causal connection required within the definition of “reprisal” under s 13 of the PID Act – no causal connection established by the evidence

Legislation:

Parliamentary Service Act 1999 (Cth)

Public Interest Disclosure Act 2013 (Cth) ss 6, 9, 10, 13, 14, 15, 16, 19, 19A, 20, 26, 29, 36, 43, 47, 48, 52, 61, 73

Cases cited:

Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618

Independent Corporate Services Ltd v Stevens [2002] WASC 280

Date of hearing: 18 April 2019
Registry: New South Wales
Division: General Division
National Practice Area: Other Federal Jurisdiction
Category: Catchwords
Number of paragraphs: 63
Counsel for the Applicant: Mr R Thomas
Solicitor for the Applicant: Fitzgerald Naylor Lawyers
Counsel for the Respondents: Mr P D Herzfeld
Solicitor for the Respondents: Ashurst Australia

ORDERS

ACD 13 of 2019
BETWEEN:

APPLICANT ACD13/2019

Applicant
AND:

ROBERT STEFANIC

First Respondent

ROBERT BRIGDEN

Second Respondent

CATE SAUNDERS

Third Respondent

JUDGE:

GRIFFITHS J

DATE OF ORDER:

18 APRIL 2019

THE COURT ORDERS THAT:

1.The applicant have leave to file the amended originating application and statement of claim filed on 12 April 2019.

2.The application for interlocutory injunctive relief be dismissed.

3.Costs are reserved and should await the outcome of the application for final relief.

4.The parties should within seven days hereof seek to agree orders for the future conduct of the proceeding.

5.The proceeding will be listed in the next callover of the ACT list.

6.Within 7 days hereof the parties are to seek to agree whether any redactions should be made from these reasons for judgment in light of the suppression order. 

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


ORDERS

ACD 13 of 2019
BETWEEN:

APPLICANT ACD13/2019

Applicant
AND:

ROBERT STEFANIC

First Respondent

ROBERT BRIGDEN

Second Respondent

CATE SAUNDERS

Third Respondent

JUDGE:

GRIFFITHS J

DATE OF ORDER:

18 APRIL 2019

THE COURT ORDERS THAT:

1.Pursuant to section 37 AF of the Federal Court of Australia Act 1976 (Cth) (FCA Act), until further order of the Court, and except as stipulated in order 2, publication or other disclosure of:

(a)information tending to reveal the identity of the applicant or any recipient or proposed recipient of a disclosure referred to in (b), (c), (d) or (e);

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Details
Case
[2019] FCA 548
Decision Date

CaseChat Overview and Summary

The applicant, in this case identified as ACD13/2019, applied for interim relief under section 15 of the Public Interest Disclosure Act 2013 (Cth) (PID Act) seeking a stay to prevent the imposition of any sanction from an ongoing Code of Conduct investigation. The applicant alleged that any sanction or other action relating to the investigation would constitute reprisal under section 13 of the PID Act. The respondents, including Stefanic, argued against the application, asserting that the applicant did not have a prima facie case that any sanction would constitute reprisal. The court was required to decide whether the applicant had a prima facie case that any sanction or other action relating to the investigation would constitute reprisal under section 13 of the PID Act. Additionally, the court needed to interpret the meaning of "external disclosure" under section 26 of the PID Act and determine if there was a causal connection required within the definition of "reprisal" under section 13 of the PID Act.

The court found that there was no prima facie case or serious question to be tried, as the applicant's claims were very weak in light of the existing evidence. The court held that the applicant's attempted October disclosure did not qualify as an "external disclosure" within the meaning of section 26 of the PID Act. Furthermore, the court determined that there was no causal connection established by the evidence to support the applicant's contention that the attempted October disclosure constituted reprisal. As a result, the application for interim relief was refused. The court also considered the balance of convenience, which favoured the applicant, but ultimately found that this was not sufficient to establish a prima facie case. The court ordered that the application for interlocutory injunctive relief be dismissed, with costs reserved to await the outcome of the applicant’s application for final relief. The proceeding was to be listed for the next callover of the ACT list.

Orders

Orders of the court

1. Pursuant to section 37 AF of the Federal Court of Australia Act 1976 (Cth) (FCA Act), until further order of the Court, and except as stipulated in order 2, publication or other disclosure of:

(a) information tending to reveal the identity of the applicant or any recipient or proposed recipient of a disclosure referred to in (b), (c), (d) or (e);

(b) the contents of the disclosure by the applicant of 28 June 2018;

(c) the contents of the disclosure by the applicant posted on or around 9 October 2018;

(d) the contents of the disclosure by the applicant of 16 October 2018: or

(e) the contents of the disclosure by the applicant of 15 March 2019

is prohibited.

2. Order 1 does not prohibit disclosure:

(a) by a party to the proceeding, for the purposes of the proceeding to: another party to the proceeding; the Court; or that party's legal representatives or any independent expert retained by the party;

(b) for the purposes of any investigation of the disclosures referred to in Order 1 under the Public Interest Disclosure Act 2011 (Cth);

(c) for the purposes of any process undertaken by the Department of Parliamentary Services to determine whether the applicant breached the Parliamentary Services Code of Conduct and, if so, what if any sanction should follow;

(d) where such disclosure is required to satisfy a request of the Commonwealth Parliament, a Parliamentary Committee or a Commonwealth Minister for information; or

(e) with the consent of the parties.

3. In accordance with s 37AG(2) of the FCA Act, Order 1 is

(a) necessary to prevent prejudice to the proper administration of justice (s 37AG(1)(a) of the FCA Act); and

(b) to prevent prejudice to the interests of the Commonwealth in relation to national security (s 37AG(1)(b) of the FCA Act).

4. The application is hereafter to be referred to in all Court documents as “Applicant ACD13/2019”.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The applicant relied upon three affidavits sworn by him, most of which merely attached many of the relevant documents to these proceedings and which are described elsewhere. In his affidavit dated 2 April 2019, the applicant also gave his account of what occurred on 15 October 2018 with the opening of the envelope. He also gave evidence of his financial and family circumstances which is relevant to the question of the balance of convenience. (b) The respondents’ evidence summarised The respondents relied upon two affidavits dated 26 March 2019 and 17 April 2019 respectively by their instructing solicitor, Ms Elissa Speight. In the first of those affidavits, Ms Speight described the events surrounding the June and October disclosures and the two investigations in relation to those matters. She explained that, in the case of the Code of Conduct investigation arising from the October disclosure, if the investigation finds that the applicant breached that Code, any sanction to be imposed would be determined by a sanction delegate and only after the applicant was given an opportunity to respond to any proposed sanction. She said that this process will not conclude before 8 April 2019 at the earliest. I accept that latter evidence. Ms Speight deposed that she was instructed by the second respondent (Mr Brigden) that the envelope containing the October disclosure was already open when it was seen by him for the first time on 15 October 2018. Mr Brigden also instructed her that although he was aware at that time that the applicant had made a public interest disclosure in June 2018, he was not aware of the substance of that disclosure when he inspected the contents of the envelope on 15 October 2018. Further, Mr Brigden’s instructions were that, when he inspected the contents, the identity of the sender of the envelope had not yet been established and that his actions in inspecting the contents were not related to the applicant’s June disclosure or because Mr Brigden suspected or believed that the applicant was attempting to, or proposed to make, a public interest disclosure. Finally, Mr Brigden’s instructions to Ms Speight were that Mr Stefanic had no involvement in the inspection of the contents of the envelope. Ms Speight deposed that she was instructed by the third respondent (Ms Saunders) that she was not aware that the applicant had made a public interest disclosure in June 2018 when she inspected the contents of the envelope on 15 October 2018. Further, Ms Saunders’ instructions were that none of her actions on 15 October 2018 were taken because the applicant had previously made a public interest disclosure or because she suspected or believed that the applicant was attempting to, or proposed to make, a public interest disclosure. In her supplementary affidavit, Ms Speight made reference to parts of her earlier affidavit and to the Report dated 25 February 2019 by Ms Deegan. She deposed that she was instructed by Ms Deegan that, subject to one qualification, none of Ms Deegan’s actions or decisions in relation to her Report were taken because the applicant had previously made a public interest disclosure (including the June disclosure) or that Ms Deegan suspected or believed that the applicant was attempting to make a public interest disclosure within the meaning of the PID Act when he attempted to send the envelope to the Parliamentarian. The qualification is that Ms Deegan said that she had considered the applicant’s solicitor’s contention that the sending of the envelope involved the making or attempted making of an external public interest disclosure within the meaning of the PID Act, but her instructions to Ms Speight were that she was not satisfied that it was such a disclosure.

Decision

Reasons for decision

For these reasons, although I accept that in the light of the applicant’s evidence referred to above, the balance of convenience is in his favour (taking also into account his proffered undertaking as to damages), I am not persuaded that there is a prima facie case or serious question to be tried. Indeed, for the reasons given above, I consider that in the light of the existing evidence (which may well change in the final proceeding), the applicant’s claims are very weak. Conclusion For these reasons, the application for interlocutory injunctive relief will be dismissed. Costs should be reserved and await the outcome of the applicant’s application for final relief. The parties should seek to agree orders for the future conduct of the proceeding. The proceeding will be listed for the next callover of the ACT list.

Ratio Decidendi

Legal Principle Established

Finally, the respondents contended that if, contrary to the above, there was a prima facie case, it is of the “barest kind” and is based on speculation and assertion. They contended that this and other considerations favour refusing an interlocutory injunction. The other considerations were said to be as follows:(a)Any ultimate sanction which is imposed on the applicant as a result of the Determination that he has breached the Code of Conduct may be something less than termination of his employment. (b)If it eventuates that the applicant’s employment is terminated, the Court can order reinstatement and compensation in appropriate circumstances. This is to be contrasted with the position if interlocutory relief were granted because the DPS would be required to continue the applicant’s suspension on full pay until a final judgment and such payments are unlikely to be recovered. (c)The applicant has adequate final relief available to him if he makes good his claims on a final basis. Consideration and determination For the following reasons, I am not persuaded that there is a prima facie case to be tried. First, focussing upon the applicant’s contention that the attempted October disclosure qualifies as an “external disclosure” within the meaning of s 26, I accept the respondents’ submission that the mandatory requirement in Item 2(b) is not satisfied. That requirement is that, on a previous occasion, the discloser has made an internal disclosure of information that consisted of, or included, the information now disclosed. Although it would be open to conclude that the June disclosure is a subset of the attempted October disclosure, that is not the relevant test. The relevant test, as applied to the circumstances here, is whether the October disclosure is a subset of the June disclosure. It plainly is not. Secondly, and in addition, there are fundamental problems with the applicant’s reliance on either Items 2(c)(i) or (iii) of the PID Act, either of which must also be satisfied for the attempted October disclosure to quality as an “external disclosure”. As to the first of those matters, I consider that (i) requires the disclosure investigation relating to the internal disclosure to have been completed. This is evident having regard to the expression “was conducted” in that provision. That construction is also supported by the terms of Items 2(c)(ii) and (iii), both of which operate by reference to an investigation which has been completed. The difficulty for the applicant is that even if he believes on reasonable grounds that the ongoing Pt 3 investigation into his June disclosure was inadequate, that investigation has not yet been completed and the item contemplates that the belief as to inadequacy relates to a completed investigation. As to applicant’s reliance on Item 2(c)(iii) of the PID Act, there is no arguable case that this provision is satisfied here. For the attempted October disclosure to qualify as an “external disclosure” under this particular Item, it would need to be shown that the Pt 3 investigation into the June disclosure (i.e. the internal disclosure) has not yet been completed within the time limit under section 52. But that is not the case as matters stand at present.