Gardem v Edmistone - [2018] QDC 118

DISTRICT COURT OF QUEENSLAND

CITATION:

Gardem v Edmistone [2018] QDC 118

PARTIES:

GRAHAM JOHN GARDEM
(plaintiff)

v

LESLIE MURDOCH EDMISTONE
(defendant)

FILE NO/S:

BD2660/11

DIVISION:

PROCEEDING:

Civil Trial

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

26 June 2018

DELIVERED AT:

Brisbane

HEARING DATE:

1, 2, 3 and 4 February, 11, 12, 13 and 15 July, 17 and 18 August 2016 and written submissions on 25 August, 8 and 15 September and 24 October 2016.

JUDGE:

Andrews SC DCJ

ORDER:

Claim dismissed.

Order that the plaintiff pay the defendant’s costs on the standard basis of the proceeding excluding Queen’s Counsel’s fees for brief to appear on 3 and 4 February and 15 July 2016.

Liberty by 4.00pm on 27 June 2018 to apply as provided for in these reasons for a different order as to costs

CATCHWORDS:

STATUTORY INTERPRETATION – where the plaintiff claims damages for reprisals for public interest disclosures which occurred while the Whistleblowers Protection Act 1994 (repealed) was in force – where that Act was repealed – where the plaintiff claims damages pursuant to the Public Interest Disclosure Act 2010 – whether that claim is misconceived – whether claim should properly have been made under the repealed Act

STATUTORY INTERPRETATION – Whistleblowers Protection Act 1994 (repealed) – whether disclosures were each a public interest disclosure – meaning of “conduct that could if proved be a criminal offence” within the meaning of the Crime and Corruption Act 2001 section 15 as it was in 2008 and 2009

TORT – REPRISAL – whether disclosures were public interest disclosures – whether the defendant believed the disclosures were public interest disclosures – whether detriment was caused – whether there was attempt to cause detriment – whether detriment was caused or attempted because of or in the belief that there was public interest disclosure – whether there was a reprisal – whether there was loss caused by reprisal

Acts Interpretation Act 1954 section 20(2)(c) and (d)

Crime and Corruption Act 2001 section 15

Disability Services Act 2006 section 11

Public Interest Disclosure Act 2010 sections 4, 40(1) and (3), 42, 74 and 75 and schedule 4.

Whistleblowers Protection Act 1994 (repealed) sections 4, 7, 15, 16, 17, 18, 41 and 43 and schedule 6.

Public Interest Disclosure Act 1994 (ACT) (repealed) s. 8

Uniform Civil Procedure Rules r150 (1) (k).

Berry v Ryan [2001] ACTSC 11

Falk v Australian Capital Territory [2006] ACTSC 68 at [30]

Howard v State of Queensland [2001] 2 Qd. R. 154

Jones v University of Canberra [2016] ACTSC 78 at [92]

Martin v Comcare [2015] FCAFC 169 at [108]

COUNSEL:

Ashton QC for the defendant

Plaintiff for himself

SOLICITORS:

Thynne and Macartney for the defendant

TABLE OF CONTENTS

Background

Issues

Does the Public Interest Disclosure Act2010, or the Whistleblowers Protection Act 1994 (repealed) govern the parties’ rights and liabilities?

The provisions of the Whistleblowers Protection Act 1994 (Qld) repealed

Identifying Mr Gardem’s case under WPA

Has Mr Gardem proved the 9 disclosures alleged?

Facts

Alleged…

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.

Continue reading Gardem v Edmistone

Details

AGLC: Gardem v Edmistone [2018] QDC 118
Case: [2018] QDC 118
Decision Date: 26 June 2018

CaseChat Overview and Summary

The Gardem v Edmistone case involves the plaintiff, Gardem, suing the defendant, Edmistone, for damages due to alleged reprisals following public interest disclosures made by Gardem. The dispute was adjudicated in the Supreme Court of Queensland. Gardem claimed that the reprisals occurred during the period when the Whistleblowers Protection Act 1994 was in force, and that he was entitled to damages under the Public Interest Disclosure Act 2010. Edmistone argued that Gardem's claim was misconceived and that it should have been made under the repealed Whistleblowers Protection Act 1994.

The court was required to determine whether Gardem's disclosures were considered public interest disclosures under the repealed Whistleblowers Protection Act 1994, and if so, whether these disclosures constituted conduct that could be a criminal offence as defined by section 15 of the Crime and Corruption Act 2001. The court also had to decide whether the detriment experienced by Gardem was due to, or in the belief of, public interest disclosures, and if there was an attempt to cause such detriment. Additionally, the court needed to interpret the relevant legislation to determine if Gardem's claim was properly made under the Public Interest Disclosure Act 2010.

The court found that Gardem's disclosures did not constitute public interest disclosures under the repealed Whistleblowers Protection Act 1994, as they did not meet the criteria for conduct that could be a criminal offence. The court held that the detriment Gardem experienced was not due to, or in the belief of, public interest disclosures, and there was no attempt to cause such detriment. Consequently, the claim for reprisal was dismissed, and the court ordered that Gardem pay Edmistone's costs on the standard basis, excluding Queen's Counsel's fees for brief to appear on specific dates. The court further allowed Gardem until 4.00pm on 27 June 2018 to apply for a different order regarding costs.

Orders

Orders of the court

Claim dismissed.

Order that the plaintiff pay the defendant’s costs on the standard basis of the proceeding excluding Queen’s Counsel’s fees for brief to appear on 3 and 4 February and 15 July 2016.

Liberty by 4.00pm on 27 June 2018 to apply as provided for in these reasons for a different order as to costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Gardem v Edmistone [2018] QDC 118
PARTIES:	GRAHAM JOHN GARDEM (plaintiff) v LESLIE MURDOCH EDMISTONE (defendant)
FILE NO/S:	BD2660/11
DIVISION:
PROCEEDING:	Civil Trial
ORIGINATING COURT:	District Court of Queensland
DELIVERED ON:	26 June 2018
DELIVERED AT:	Brisbane
HEARING DATE:	1, 2, 3 and 4 February, 11, 12, 13 and 15 July, 17 and 18 August 2016 and written submissions on 25 August, 8 and 15 September and 24 October 2016.
JUDGE:	Andrews SC DCJ
ORDER:	Claim dismissed. Order that the plaintiff pay the defendant’s costs on the standard basis of the proceeding excluding Queen’s Counsel’s fees for brief to appear on 3 and 4 February and 15 July 2016. Liberty by 4.00pm on 27 June 2018 to apply as provided for in these reasons for a different order as to costs
CATCHWORDS:	STATUTORY INTERPRETATION – where the plaintiff claims damages for reprisals for public interest disclosures which occurred while the Whistleblowers Protection Act 1994 (repealed) was in force – where that Act was repealed – where the plaintiff claims damages pursuant to the Public Interest Disclosure Act 2010 – whether that claim is misconceived – whether claim should properly have been made under the repealed Act STATUTORY INTERPRETATION – Whistleblowers Protection Act 1994 (repealed) – whether disclosures were each a public interest disclosure – meaning of “conduct that could if proved be a criminal offence” within the meaning of the Crime and Corruption Act 2001 section 15 as it was in 2008 and 2009 TORT – REPRISAL – whether disclosures were public interest disclosures – whether the defendant believed the disclosures were public interest disclosures – whether detriment was caused – whether there was attempt to cause detriment – whether detriment was caused or attempted because of or in the belief that there was public interest disclosure – whether there was a reprisal – whether there was loss caused by reprisal Acts Interpretation Act 1954 section 20(2)(c) and (d) Crime and Corruption Act 2001 section 15 Disability Services Act 2006 section 11 Public Interest Disclosure Act 2010 sections 4, 40(1) and (3), 42, 74 and 75 and schedule 4. Whistleblowers Protection Act 1994 (repealed) sections 4, 7, 15, 16, 17, 18, 41 and 43 and schedule 6. Public Interest Disclosure Act 1994 (ACT) (repealed) s. 8 Uniform Civil Procedure Rules r150 (1) (k). Berry v Ryan [2001] ACTSC 11 Falk v Australian Capital Territory [2006] ACTSC 68 at [30] Howard v State of Queensland [2001] 2 Qd. R. 154 Jones v University of Canberra [2016] ACTSC 78 at [92] Martin v Comcare [2015] FCAFC 169 at [108]
COUNSEL:	Ashton QC for the defendant Plaintiff for himself
SOLICITORS:	Thynne and Macartney for the defendant