Ashton v The Australian Capital Territory
[2019] ACTSC 93
•11 April 2019
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 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 they may have a cause of action pursuant to a statutory tort created by s 41 of the Act (discussed below), and if so, the identity of the person responsible for the conduct.
The plaintiffs each seek orders pursuant to rr 650 and 651 of the Court Procedures Rules 2006 (ACT) (Rules) requiring the defendant to give preliminary discovery of certain documents. During oral argument, counsel for the plaintiffs indicated that discovery pursuant to r 651 would be sufficient to deal with the applications.
Accordingly, the issue before the Court is whether to grant discovery of the documents sought pursuant to r 651 of the Rules. There are 10 categories of documents sought, each of which are addressed below.
The defendant has agreed to produce a number of documents under a more limited list of categories for discovery. However, the plaintiffs argue the list proposed by the defendant is insufficient.
The Court’s power
The following extract is the part of r 651 of the Rules on which the plaintiffs rely (notes omitted):
651 Discovery to identify right to claim relief
(1) This rule applies if –
(a) a person (the applicant) has, or may have, a cause of action against someone (the potential defendant); and
(b) either –
(i) the applicant, after making reasonable inquiries, cannot obtain sufficient to decide whether to start a proceeding in the court against the potential defendant for the cause of action; or
(ii) … ; and
(c) the applicant has reasonable grounds for believing that the potential defendant has or has had possession of a document or thing that can assist in deciding whether to start the proceeding, or make the claim for relief, against the potential defendant; and
(d)inspection of the document or thing by the applicant would help in making that decision.
(2)If subrule (1)(b)(i) applies, the applicant may apply to the court by originating application for an order under this rule (and, if relevant, an order under rule 715 (inspection, detention, custody and preservation of property – orders etc)) against the potential defendant.
(3)…
(4)The application must be supported by an affidavit stating the facts on which the applicant relies, and stating the kinds of documents or things in relation to which the application is made.
…
(5)The court may order the potential defendant to produce the document or thing to the applicant.
(6)… .
It may be seen that, under r 651(5) of the Rules, the Court has a general discretion whether to make the order sought. The discretion is only enlivened upon r 651 applying. Thus the plaintiffs must establish that:
(a)They may have a cause of action;
(b)They have made reasonable inquiries and have been unable to obtain sufficient information to decide whether to start a proceedings against the defendant;
(c)They have reasonable grounds for believing the potential defendant has or had possession of a document or thing that can assist in deciding whether to start the proceedings; and
(d)Inspection of the documents sought would help in making the decision.
The plaintiffs bear the onus of satisfying the Court of these matters: Morton v Nylex Ltd [2007] NSWSC 562 at [33], cited in Hall v Commonwealth [2018] ACTSC 79 (Hall) at [22].
Do the plaintiffs have a potential cause of action?
The plaintiffs must establish there is a potential cause of action, not an open enquiry as to whether any cause of action might exist: Hall at [10] per Elkaim J.
Has a potential cause of action been identified?
The cause of action identified by the plaintiffs is s 41 of the Act, which is in the following terms:
41Damages for detrimental action
(1)A person who takes detrimental action against someone else is liable in damages to anyone who suffers detriment as a result.
(2)Detrimental action is a tort and damages may be recovered in a proceeding in a court of competent jurisdiction.
(3)Any remedy that may be given by a court for a tort, including exemplary damages, may be given by a court in a proceeding under this section.
(4)The right of a person to bring a proceeding for damages under this section does not affect any other right or remedy available to the person arising from detrimental action.
The wording of the section is problematic. It appears that what the section was really intending was that a person who takes detrimental action ‘because of a public interest disclosure’ be liable in damages, however those key words are missing from s 41.
This appears to be a legislative oversight. That the Legislative Assembly intended to create a causal link between the detrimental action and the public interest disclosure may be discerned from the words to describe the criminal offence in the preceding section – s 40 of the Act:
(1)A person commits an offence if the person (the retaliator) takes detrimental action because of a public interest disclosure.
Maximum penalty: 100 penalty units, imprisonment for 1 year or both.
The section then defines how the retaliator ‘takes’ detrimental action. For the offence to be committed, it is sufficient if the person threatens to take detrimental action, that the belief of the retaliator is that the person either made or intends to make a public interest disclosure, and that the reason for the retaliator’s conduct ‘is a contributing reason’: ss 40(2) and 40(3) of the Act.
The parties argued the present application on the basis that s 41 of the Act necessarily implied a link between the detrimental action and the public interest disclosure. That construction is consistent with the explanatory memorandum to the section, which provides:
This clause allows a person to seek compensation from a person who retaliates against the person for making a [public interest disclosure]. It has been left for the court to decide the appropriate remedies available to a discloser who suffers a reprisal.
Providing a meaningful remedy to people who make public interest disclosures who are then the subject of detrimental action because they made such a disclosure seems to be the obvious purpose of s 41. I am content to resolve the applications on that basis, although it is clear that the lacuna in the legislation and any ambiguity arising will need to be properly considered and resolved if the plaintiffs proceed with the litigation in contemplation.
Is there an objective foundation for the cause of action?
There must be some tangible backing, or objective foundation, that takes the existence of the cause of action beyond a mere allegation, suspicion or assertion: Waller v Waller [2009] WASCA 61 at [75]; cited in Minerva (Aust) Pty Ltd v Suburban Land Agency [2018] ACTSC 103 at [25] and in Hall at [18].
It was accepted by the defendant that the plaintiffs each made one or a number of public interest disclosure/s, as that term is defined in s 7 of the Act.
The plaintiffs assert, through the three lengthy affidavits sworn by Mr John Wilson, solicitor for the plaintiffs, that under s 39 of the Act, there has been ‘detrimental action’ taken against each of them because of the protected disclosures each made.
Dr David Ashton
In respect of Dr David Ashton, there was a public interest disclosure made in November 2017 by Dr Kathy Ashton (his wife). During February 2018, Dr David Ashton met with Mr Venn, an investigator appointed by the Public Sector Standards Commissioner of the Australian Capital Territory (the Investigator). During that meeting, he made separate public interest disclosures.
Following that meeting, a number of things happened which might all be generally described as interactions with Dr Ashton’s employer or in relation to his employment:
(a)In April 2018, a threat was made by the Investigator to Dr David Ashton to ‘back off or I will hit you with a section 9’, which presumably is a reference to some form of disciplinary action being taken under s 9 of the Public Sector Management Act 1994 (ACT).
(b)In April 2018, a complaint was made about Dr David Ashton by Mr Mark Duggan, the person about whom the protected disclosure was made, and an investigation then commenced into that complaint.
(c)Following the completion of the investigation, the defendant refused to disclose the result of the investigation to Dr David Ashton.
(d)In May 2018, there was an issue with a mammogram that was performed by a radiographer on one of Dr David Ashton’s patients. Dr David Ashton sought to clarify with the radiographer as to why a particular test was performed which was not the one that he had requested. This resulted in correspondence from Dr Jeffrey Fletcher, the then Chief Medical Officer of the defendant, as to the appropriateness of Dr David Ashton’s conduct.
(e)Dr David Ashton had made a claim for workers compensation. It is asserted by Mr Wilson that in August 2018, the Mr Chris Bone, the Deputy Director General of Canberra Hospital and Health Service, corresponded with Comcare and sought to dissuade it from admitting Dr David Ashton’s claim, which Mr Wilson as the deponent (on information and belief) links to the correspondence regarding the aforesaid mammogram.
Assuming for the present purpose that the conduct above falls within the definition of ‘detrimental action’, the instances give rise to a real question as to whether the public interest disclosure was ‘a contributing reason’ (c.f. s 40) for the issues that Dr David Ashton subsequently experienced. I therefore find that the potential cause of action in relation to Dr David Ashton has an objective foundation.
Dr Kathy Ashton
The affidavit evidence in relation to Dr Kathy Ashton is similar. She made a public interest disclosure on 3 November 2017. Two weeks later, one of the people who was the subject of the disclosure requested Dr Fletcher, to conduct a preliminary assessment into possible misconduct against Dr Kathy Ashton.
The disclosure of 3 November 2017 also included a complaint about a radiographer. Following the disclosure, Dr Kathy Ashton believed that the radiographer was sabotaging ultrasound biopsies in an attempt to make Dr Ashton look incompetent. This caused her to make what she considers to be a further public interest disclosure on 14 December 2017 about the same radiographer.
Investigations were then conducted in relation to the matters that were the subject of the complaints by and against Dr Kathy Ashton but were apparently not concluded until January 2019, approximately a year later.
In July 2018, Dr Kathy Ashton made an application to Comcare for psychological injury which she attributes to the matters the subject of her public interest disclosures and the drawn-out investigation.
In September 2018, Mr Bone proposed that Dr Kathy Ashton be referred to the Medical Dental Advisory Committee in relation to her performance. It is alleged that this may be detrimental action against Dr Kathy Ashton because of her earlier protected disclosures.
The close timing between the public interest disclosures by Dr Kathy Ashton and the events that followed them, coupled with the same personnel being involved, establish an objective foundation for a potential cause of action (or actions) under s 41 of the Act.
Dr Stuart Berry
Dr Berry made public interest disclosures concerning patient safety and administration issues in 2017 and 2018.
After making such disclosures, Dr Berry experienced difficulties and extreme delays in having applications for annual, educational and long service leave approved. Dr Berry’s observation was that other colleagues did not experience the same difficulties or delays.
Further, a complaint was made about Dr Berry by the head radiographer in the relevant department and one of the people about whom Dr Berry had had made a complaint decided to conduct a preliminary assessment of that complaint. Dr Berry believes this was a reaction to the public interest disclosures.
In February 2018, along with Dr David Ashton, Dr Berry met with the Investigator in relation to a number of protected disclosures. During the meeting, he raised questions about the appointment of particular medical personnel, which he believes were further protected disclosures.
Dr Berry asserts he had been a member of an interview panel for the position of Director of Medical Imaging where the other two members, Dr Fletcher and Mr Bone (who, at that time, was the Acting Executive Director of Canberra Hospital and Health Service) were also the referees of one of the candidates being interviewed. That candidate succeeded in being appointed to the position.
It is noted that Mr Bone appears to have been replaced on the panel at some point by an individual named Margaret McLeod, although the evidence is unclear as to what her ultimate decision-making role was.
For the purposes of Dr Berry’s potential cause of action, some weeks after Dr Berry had raised the appointment process with the Investigator, the successful candidate made a complaint about Dr Berry.
Further, Dr Berry experienced delays in the completion of paperwork relating to his medical credentials from the time that he met with the Investigator. Dr Berry believes that the delays in credentialing without any competence issues being raised about him constituted detrimental action for making public interest disclosures about patient safety and administration issues.
Dr Berry was also previously the Head of Department, Medical Imaging, an appointment which has been discontinued since the protected disclosures were made.
As with the evidence relating to the other two plaintiffs, when a doctor has raised questions about patient safety and administration deficiencies, that doctor has been met with a complaint about his or her own conduct within weeks, and has experienced a lengthy investigation process and other difficulties not experienced before the disclosures were made.
This may be a matter of coincidence. However, the timing of complaints is proximate to the protected interest disclosures made by Dr Berry. Coupled with this are the positions held by the people involved in the events and the links between them. To my mind, such factual matters demonstrate an objective foundation for a number of potential causes of action under s 41 of the Act.
Have reasonable inquiries been made?
Whether reasonable inquiries have been made is a question of fact, to be considered in all the circumstances of the case, including the relationship between the plaintiff and the potential defendant/s: Steffen v ANZ Banking Group [2009] NSWSC 666 at [15].
Despite counsel for the defendant contending that reasonable enquiries had not been made, it is clear that the solicitor representing the plaintiffs has made requests for documents to assist in determining whether to bring claims under s 41 of the Act.
What appears to be at the heart of the defendant’s submission that reasonable enquiries have not been made is the broad scope of documents sought. The defendant submits the categories sought were so wide ranging as to be unreasonable. However, given the seriousness of the allegations, and their potential criminal consequences, it is understandable that the solicitors for the plaintiffs would be seeking as much information as can be gathered before advising their clients to commence proceedings.
I accept that reasonable enquiries have been made of the defendant and no documents have been forthcoming to date.
Would inspection of the documents help in making the decision?
The preliminary discovery procedure is not designed to secure for a prospective plaintiff all the documents and other information that would be discoverable if a proceeding were commenced against the defendant: SmithKlineBeecham plc v AlphapharmPty Ltd [2001] FCA 271 at [19].
The nature of the relief is extraordinary. As such, the courts must take a cautious approach when considering making an order against a party not yet involved in litigation: Elmarazeey v The Law Society of the Australian Capital Territory [2006] ACTSC 124; 205 FLR 445 at [18], cited in Hall at [7].
The measure of preliminary discovery is the extent of information that is necessary, but no more than that which is reasonably necessary, in order to overcome the insufficiency of information already possessed by the applicant to enable it to make a decision as to whether or not to commence proceedings: see Kusa v Vong [2018] ACTSC 254 at [83] per Refshauge J and the cases there-cited.
As to the documents sought by the plaintiffs, the categories are so broad as to amount to a request for full discovery as if proceedings had already been commenced. On the basis of the above principles, what is sought far exceeds what is reasonably necessary to overcome the insufficiency of information already possessed by the plaintiffs.
However, the defendant’s approach to the question is also unduly narrow. It isolates the specified incidents and suggests that it will consent to give discovery of documents that are limited in proximate time to those incidents it has isolated and which specifically refer to the particular public interest disclosures made.
Although the critical element of the tort in question is not clear from the words of s 41 of the Act, I do not accept that the only documents which should be discovered are those which specifically refer to the fact of public interest disclosures having been made. The statutory tort is more nuanced than that, as is the human behaviour which might reveal that certain actions taken were in retaliation for the making of a public interest disclosure.
I will deal with each of the categories sought by the plaintiffs in turn.
Category 1 – ‘All communications between ACT Health Directorate and Ms Prue Bindon, and records relating to such communications, in relation to the plaintiffs’
While I accept that there is a degree of fishing involved in an application for preliminary discovery, the breadth of documents sought under this category is so broad that it is disproportionate to the decision to be made by the plaintiffs. Not only are the plaintiffs seeking every communication by anyone in the ACT Health Directorate to an external investigator (Ms Bindon) in relation to the plaintiffs, but they are seeking ‘records relating’ to such communications.
The only reference to Ms Bindon in the evidence is in a letter apparently obtained in response to an application under s 30 of the Freedom of Information Act 2016 (ACT). There also appears to be an oblique reference to Ms Bindon in a statement made by the Deputy Director-General in September 2018 regarding Dr Kathy Ashton’s complaint on 3 November 2017 being subject to ‘a comprehensive information gathering exercise conducted by an external information gatherer’.
It is not alleged that Ms Bindon took any detrimental action. It is also not alleged that anyone communicating with Ms Bindon as part of her information gathering exercise was engaging in ‘detrimental action’. The conduct relied upon to found the allegations of detrimental action is separate.
Applying a cautious but not unduly narrow approach, I am prepared to accept that the reason for the investigation and the instructions given to Ms Bindon throughout the investigation are documents that may assist with determining whether there is a link between any of the conduct that is alleged to constitute detrimental action and the public interest disclosures made.
I am not satisfied the plaintiffs have established that either what was said by people during any investigation, or Ms Bindon’s conclusions about the material she obtained, will assist in identifying the reasons for the detrimental action presently outlined in the affidavit evidence.
The defendants will therefore be required to produce any document evidencing the engagement of Ms Bindon to conduct an investigation in relation to Dr Kathy Ashton, Dr David Ashton or Dr Stuart Berry or any public interest disclosure or complaint made by or in relation to each of them, including any terms of reference or instructions provided to Ms Bindon by the ACT Health Directorate at the commencement of or throughout any such investigative process.
Category 2 – ‘All documents which make up Prue Bindon’s information gathering exercise into Kathy Ashton’s breast imaging public interest disclosure complaint of 3 November 2017, including the recently completed document.’
The same reasons apply to this category of documents sought. While this type of material might be properly discoverable if it is found to be of sufficient relevance to the issues raised in any pleading, it is not reasonably necessary to overcome the insufficiency of information as to the particular incidents specified by the plaintiffs as constituting detrimental action.
Category 3 – ‘All communications from or to Mr Mark Duggan, Mr Chris Bone, Ms Nicole Feely, and Dr Jeffrey Fletcher and Mr Justin Wunsch which contain any of the terms “David Ashton”, “Kathy Ashton”, “K Ashton”, “S Berry”, “Berry”, “HOD”, initials SB, SRB, or “Ashton” between dates of 1 September 2017 and 9 September 2018. This includes deleted emails, permanent or otherwise.’
This category of documents again is too broad. It plainly captures communications to and from each of the plaintiffs; documents that each plaintiff should already have in his or her possession. It also captures any email sent by anyone to the five employees named which might refer to any of the plaintiffs. It goes well beyond what would usually be ordered by way of preliminary discovery.
Three of the people named in the category of documents were the subject of a public interest disclosure: Mr Duggan, Mr Bone and Dr Fletcher. The other two people named, Ms Nicole Feely and Mr Justin Wunsch, were described as senior officers employed in ACT Health. Mr Wunsch was a senior employee advisor employed by the defendant.
On the evidence before the Court, the public interest disclosures which are potentially the subject of a cause of action occurred from November 2017 at the earliest. Legal correspondence from Mr Wilson as to the potential causes of action under consideration was sent to the defendant on 12 September 2018.
I am only prepared to order discovery of email communications between the persons identified over the period 3 November 2017 to 9 September 2018, which contain the terms described by the plaintiffs.
Category 4 – ‘All communications from or to Dr Stuart Berry to Mr Chris Bone, Dr Jeffrey Fletcher, and Mr Mark Duggan regarding breast imaging between September 2017 and January 2018.’
This category was not pressed.
Category 5 – Documents concerning preliminary assessments
This category of documents sought was as follows:
All documents and communications between ACT Health Directorate staff and between ACT Health Directorate staff and ACT Government staff outside Health in relation to:
a. The preliminary assessment against David Ashton of Mark Duggan’s complaint that Dr Ashton made a comment in the Radiology Reporting Room saying that he was working to discredit the department.
b. The preliminary assessment against David Ashton of Mark Duggan’s complaint that Dr Ashton said that Mr Duggan is providing Dr Al-Hindawi favoured treatment when it comes to rosters.
c. The preliminary assessment against Kathy Ashton of allegations about Kathy Ashton’s conduct on 9 November 2017. This includes all documents related to the decision to engage Dr McIvor, the information sent to Dr McIvor at Westmead hospital, his report and all documents related to the decision to refer Kathy Ashton to the Medial, Dental, Advisory Committee for review.
d. The preliminary assessment against Anita Davenport of allegations from Kathy Ashton made on 14 December 2018.
e. The preliminary assessment against Stuart Berry of allegations made that Kate Saunder[s] made against Stuart Berry, notified on 8 February 2018.
f. The preliminary assessments against Stuart Berry of which he was notified on 5 April 2018 of Mr Duggan’s complaints that on or around 6 March 2018 Stuart Berry has ‘mocked’ Mark Duggan to consultants/another radiologist.
g. The preliminary assessment of Stuart Berry’s public interest disclosure about the recruitment and appointment process of E1020, Mark Duggan, performed by Andrew Klein of Mills Oakley.
h. The preliminary assessment by Andrew Klein into whether Stuart Berry, through raising concerns about the recruitment and appointment of E1020 position, had disclosed confidential information (as notified to the AMA on 24 July 2018).
The preliminary words effectively require the defendant to search all documents and communications between staff inside and outside the ACT Health Directorate for anything ‘relating to’ any of the specified assessments. Such a process is disproportionate to the task involved in preliminary discovery and the category of documents should be limited to avoid undue burden to the defendant.
Further, discovery of items (b), (e), (f), (g) and (h) will not be ordered as I accept the defendant’s submission that those matters are not identified as potential instances of detrimental action on the affidavit evidence before the Court.
I consider that discovery of this category should be limited to:
(a)All documents and communications relating to the decision to conduct any of the remaining specified preliminary assessments;
(b)Any documents evidencing the request or engagement of a person to conduct the specified preliminary assessment; and
(c)All communications of a report or document evidencing the outcome of the specified preliminary assessment.
This will tell the plaintiffs who made the decision to conduct a preliminary assessment, what the assessment was to cover, what the result was and who was notified of the outcome. I consider that this information is what is reasonably necessary to assist the plaintiffs to decide whether to pursue their contemplated causes of action, and if so, the identity of the person/s against which to bring such claims.
Category 6 – ‘All emails collated following original FOI request 18-15 and 18-14 by Dr Kathy Ashton and Dr David Ashton.’
I am not satisfied that the documents sought by this category are of sufficient relevance to assist in determining whether to pursue the causes of action currently in contemplation, as opposed to assisting the plaintiffs to discover new or further causes of action. I accept the defendant’s submission that the plaintiffs have not made out a case for this category of documents to be produced on preliminary discovery.
Category 7 – All emails, including deleted, to or from Anita Davenport, Kate Saunders or Leigh Bush which contain “Ashton”, “Kathy” or “K Ashton” between 1 September 2017 and 1 September 2018.
The public interest disclosures relied upon by Dr Kathy Ashton were made on 3 November 2017 and 14 December 2017.
The conduct alleged to constitute the detrimental action were complaints made by Kate Saunders and Anita Davenport on 9 November 2017.
The decision to investigate the complaint, also alleged to be detrimental action, was made on or before 20 February 2018.
I accept that emails which post-date certain conduct may throw light on a person’s earlier thinking and reasoning processes. However, at this preliminary stage, I consider that what is reasonably necessary for the plaintiffs to form a view about whether the case in contemplation should be brought should be limited to that four month time period.
Category 8 – ‘Emails related to threat to medical credentialing by Mr Chris Bone meeting 13 March 2018, and unreasonable delays to credentialing Dr Stuart Berry from February to May 2018, as emailed to Mr Chris Bone, Dr Jeffrey Fletcher, Mr Ian McPhee, Mr Jim Venn, and other credentialing team members.’
This category of documents is again too broad and its vague and ambiguous terms suggest it would not be a proper category for discovery in any event. It is of insufficient detail to demonstrate on its face why ordering the production of such documents would assist any of the plaintiffs. Nor does Mr Wilson’s affidavit help to identify why unspecified emails relating to an asserted ‘threat’ in a meeting on 13 March 2018 might be relevant. The plaintiffs have not made out a case for discovery of these documents.
Category 9 – ‘All communications from Barbara Reid regarding her 7 May 2018 request to Dr Stuart Berry to meet 9 May 2018 to discuss unspecified emails.’
Ms Barbara Reid was said to be acting in the role of Deputy Director General while Mr Bone was on leave. She sought to meet with Dr Berry but it is entirely unclear whether the meeting occurred or what resulted from her contact with him about emails that he had sent. How any communications to Ms Reid are related to any of the conduct alleged to constitute detrimental action is also not clear. I am not satisfied that this category of documents is reasonably necessary to assist Dr Berry to either confirm or rule out any particular causes of action currently in contemplation.
Category 10 – Documents relating to previously submitted FOI applications submitted by Dr Stuart Berry
This category was not pressed.
Conclusion
The confined preliminary discovery that I have allowed in the exercise of the discretion under r 651 will provide the plaintiffs with access to documents sufficient to plead the cases they currently consider they have against the defendant, but balanced against considerations such as proportionality.
As to the timing of the production, the parties will need to negotiate a reasonable time once the defendant has digested the scope of the discovery ultimately ordered, which is significantly less than that sought, but may nevertheless be time consuming. If the parties are unable to agree on an appropriate regime, then they may apply for a direction to be made by way of a further working out of the orders.
In relation to costs, neither party has been entirely successful in the orders each sought and the task engaged in by the Court above has been one undertaken with a view to assisting the parties to progress the dispute between them, rather than to simply reject the application in the form in which it was made because it was too broad.
The plaintiffs have obtained what amounts to an indulgence and in those circumstances, I consider it appropriate for the plaintiffs to bear the costs of the application and of the defendant’s reasonable costs of complying with the orders for discovery. This is taking account of the nature of the discovery now to occur and the fact that a disproportionate burden is not imposed by any pre-action discovery orders (c.f. Kelbush Pty Ltd v Australian and New Zealand Banking Group Ltd [2016] WASCA 14; 49 WAR 374 at [2]-[3] per Martin CJ and [130] per Buss JA).
However, if the plaintiffs commence proceedings against the defendant, they should be able to recoup both the costs of the application, and the costs of the defendant complying with pre-trial discovery. Examples of such a principle being applied may be found in Mann v Carnell (1998) 145 FLR 222 at 228 per Miles CJ.
Orders
Accordingly, the orders of the Court are:
(1) The defendant is to produce to the plaintiffs the following documents:
(a) Any document evidencing the engagement of Ms Prue Bindon to conduct an investigation in relation to: Dr Kathy Ashton, Dr David Ashton or Dr Stuart Berry or any public interest disclosure or complaint made by or in relation to each of them, including any terms of reference or instructions provided to Ms Bindon by the ACT Health Directorate at the commencement of, or throughout, any such investigative process.
(b) All email communications between Mr Mark Duggan, Mr Chris Bone, Ms Nicole Feely, and Dr Jeffrey Fletcher and Mr Justin Wunsch which contain any of the terms “David Ashton”, “Kathy Ashton”, “K Ashton”, “S Berry”, “Berry”, “HOD”, initials SB, SRB, or “Ashton” between dates of 3 November 2017 and 9 September 2018. This includes deleted emails, permanent or otherwise.
(c) All documents and communications relating to the decision to conduct any of the remaining specified preliminary assessments (Assessments):
a. The preliminary assessment against David Ashton of Mark Duggan’s complaint that Dr Ashton made a comment in the Radiology Reporting Room saying that he was working to discredit the department.
b. The preliminary assessment against Kathy Ashton of allegations about Kathy Ashton’s conduct on 9 November 2017. This includes all documents related to the decision to engage Dr McIvor, the information sent to Dr McIvor at Westmead hospital, his report and all documents related to the decision to refer Kathy Ashton to the Medial, Dental, Advisory Committee for review.
c. The preliminary assessment against Anita Davenport of allegations from Kathy Ashton made on 14 December 2018.
(d) Any document evidencing the request or engagement of a person to conduct the said Assessments.
(e) All documents evidencing, and communications of, either a report or the outcome of the said Assessments.
(f) All emails over the period 3 November 2017 to 20 February 2018 (including those that have since been deleted), sent to or from any of Anita Davenport, Kate Saunders or Leigh Bush which contain the following terms: “Ashton”, “Kathy” or “K Ashton”.
(2) Subject to Order 3, the plaintiffs are to pay the defendant’s costs of the applications and the reasonable costs of complying with Order 1 above.
(3) The costs referred to in Order 2 are to abide by any further order made in subsequent proceedings, on any cause of action alleged to have arisen out of the information contained in the documents in respect of which preliminary discovery has been ordered.
| I certify that the preceding eighty-three [83] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Date: |
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