Ashton v The Australian Capital Territory - [2019] ACTSC 93

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Ashton and Ors v The Australian Capital Territory
Citation:	[2019] ACTSC 93
Hearing Date:	22 March 2019
DecisionDate:	11 April 2019
Before:	McWilliam AsJ
Decision:	See [83]
Catchwords:	PRACTICE AND PROCEDURE – PRELIMINARY DISCOVERY – Application for discovery to identify potential defendants and right to claim relief – whether documents reasonably necessary – where pre-action discovery must not impose a disproportionate burden
Legislation Cited:	Court Procedures Rules 2006 (ACT) rr 650, 651 Public Interest Disclosure Act 2012 (ACT) ss 7, 39, 40, 41 Public Sector Management Act 1994 (ACT) s 9
Cases Cited:	Elmarazeey v The Law Society of the Australian Capital Territory [2006] ACTSC 124; 205 FLR 445 Hall v Commonwealth [2018] ACTSC 79 Kelbush Pty Ltd v Australian and New Zealand Banking Group Ltd [2016] WASCA 14; 49 WAR 374 Kusa v Vong [2018] ACTSC 254 Mann v Carnell (1998) 145 FLR 222 Minerva (Aust) Pty Ltd v Suburban Land Agency [2018] ACTSC 103 Morton v Nylex Ltd [2007] NSWSC 562 SmithKlineBeecham plc v AlphapharmPty Ltd [2001] FCA 271 Steffen v ANZ Banking Group [2009] NSWSC 666 Waller v Waller [2009] WASCA 61
Parties:	David Ashton (First Plaintiff) Kathy Ashton (Second Plaintiff) Stuart Berry (Third Plaintiff) Australian Capital Territory (Defendant)
Representation:	Counsel Mr J Ronald (Plaintiffs) Ms V Thomas (Defendant)
Solicitors Bradley Allen Love (Plaintiffs) ACT Government Solicitor (Defendant)
File Numbers:	SC 31 of 2019; SC 32 of 2019; SC 46 of 2019

McWilliam AsJ

Three specialist radiologists (the plaintiffs), who are employed in the Medical Imaging Department of the Canberra Hospital, claim to have made public interest disclosures under the Public Interest Disclosure Act 2012 (ACT) (the Act) in relation to matters affecting patient safety and health administration deficiencies, including key appointments of staff and non-compliance with hospital protocols and guidelines.

The plaintiffs allege that following such disclosures, a variety of things have happened at the Canberra Hospital, represented here by the defendant. They include: threats of disciplinary action and complaints being made against them, drawn out investigations, difficulties in accessing their entitlements and resolving workplace injury claims, lack of responses to emails, and in the case of one doctor, the loss of an appointment to a key position in the hospital.

The plaintiffs assert that such conduct is ‘detrimental action’, a term defined in s 39 of the Act. Relevant to the present case, the plaintiffs use the term in the sense of proposing to treat them unfavourably in relation to their reputation, career, profession, employment or trade, or harassing, intimidating or injuring them.

The plaintiffs believe there may be a link between the protected disclosures each has made and the detrimental action taken by a number of high level employees of the ACT Health Directorate. They are presently considering whether to commence proceedings to bring those people to account.

The applications for determination

Each plaintiff has filed an originating process dated 5 February 2019. Each is assessing whether…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] ACTSC 93
Decision Date: 11 April 2019

CaseChat Overview and Summary

Ashton brought an action against the Australian Capital Territory seeking damages for an incident that occurred on the territory's roads. The incident, which resulted in personal injuries to Ashton, allegedly involved a third party who was not identified at the time of the proceedings. Ashton sought an order for preliminary discovery to identify this third party and ascertain whether they had insurance coverage that could be used to claim relief. The Australian Capital Territory opposed the application on the basis that the documents sought were not reasonably necessary and that the application for pre-action discovery would impose a disproportionate burden.

The court was required to determine whether the application for discovery was justified and whether the documents sought were reasonably necessary. The court also needed to consider whether the application for pre-action discovery would impose a disproportionate burden on the respondent. The court found that the documents sought were reasonably necessary to identify the third party and ascertain whether they had insurance coverage. However, the court also found that the application for pre-action discovery must not impose a disproportionate burden on the respondent.

In reaching its decision, the court considered the principles of proportionality and the need to balance the rights of the parties. The court held that the application for preliminary discovery was justified as it was necessary to identify the third party and ascertain whether they had insurance coverage. However, the court also held that the application for pre-action discovery must not impose a disproportionate burden on the respondent. The court found that the burden imposed on the respondent was not disproportionate and that the application for preliminary discovery was justified.

The court made an order for preliminary discovery, but limited the scope of the order to only those documents that were reasonably necessary to identify the third party and ascertain whether they had insurance coverage. The court also made an order that the application for pre-action discovery must not impose a disproportionate burden on the respondent. The court further ordered that the parties engage in further negotiations to try to reach an agreement on the scope of the discovery order.

Orders

Orders of the court

See [83]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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