Jones v University of Canberra
[2016] ACTSC 78
•21 April 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Jones v University of Canberra & Ors |
Citation: | [2016] ACTSC 78 |
Hearing Dates: | 22 March, 29 March, 8 April and 14 April 2016 |
DecisionDate: | 21 April 2016 |
Before: | Refshauge ACJ |
Decision: | 1. The application to dissolve the injunctions made on 22 March 2016 and subsequently varied be dismissed. 2. The proceedings, as commenced by Originating Application, continue as if started by Originating Claim. 3. That the title to the proceedings be amended by referring to the parties as follows: the Applicant be referred to as the Plaintiff and the Respondents be referred to as the Defendants. 4. It is not necessary to amend the title of any document filed to date. 5. The parties be invited to bring in short minutes of the orders as made and, in conformity with these reasons, to be made so that a single document will set out the current orders made in these proceedings. 6. Unless an issue arises from the form or content of the short minutes, in which case the matter may be relisted, the orders set out in the short minutes may be made in chambers without the need for the attendance of the parties. 7. The parties be heard as to costs. |
Catchwords: | CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Interlocutory application – interim injunction – breach of contract – employment contract – public interest disclosure – whistleblower – Public Interest Disclosure Act 2012 (ACT) – disclosable conduct – type of conduct – criminal offence or reasonable grounds for disciplinary action – disclosure to specified person – ‘disclosure officer’ – action of public sector entity – maladministration – substantial misuse of public funds – assessment of disclosure in broader context – disclosure very general – unnecessary to identify specific person – detrimental action – attempt to stand down from position – restriction of public comment – reputation – causal connection between detrimental action and disclosure – dominant factor – consider action in context CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Relief – interlocutory injunction – breach of contract – employment contract – balance of convenience – working relationship – loss of trust and confidence – contract of personal service – ability to direct and control employee – need to prevent reprisal CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Sensitive information – open justice – suppression of affidavits – prohibition of publication of evidence – interlocutory proceeding – material not properly tested – capacity to damage reputation – inability to respond to allegations CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Originating process – failure to file Originating Application or Originating Claim – importance of Statement of Claim – title of parties – ‘Plaintiff’ and ‘Defendant’ STATUTES – INTERPRETATION – Public Interest Disclosure Act 2012 (ACT) – beneficial legislation – remedial legislation – liberal interpretation – interpretation favourable to those who benefit from the legislation – encourage reporting – creation of criminal offence – offence not likely to eventuate STATUTES – INTERPRETATION – Use of examples in legislation – example as part of the Act – example extends the meaning of the Act |
Legislation Cited: | Corporations Act 2001 (Cth), ss 205F, 184, 184(3), 1317AB, Pt 9.4AAA Evidence (Miscellaneous Provisions) Act 1991 (ACT) Court Procedures Rules 2006 (ACT), rr 20, 38, 39(2)(a), 50(2), Div 2.2.3 Public Interest Disclosure Bill 2006 (ACT) |
Cases Cited: | ACT Director of Public Prosecutions v King [2016] ACTSC 35 AG Australia Holdings Ltd v Burton (2002) 58 NSWLR 464 |
Texts Cited: | A J Brown, “Flying Foxes and Freedom of Speech: Statutory Recognition of Public Whistleblowing in Australia” in David Lewis and Wim Vanderkarckhove (eds), Whistleblowing and Democratic Values (International Whistleblowing Research Network, 2011) A J Brown, Public Interest Disclosure Legislation in Australia: Towards the Next Generation (Commonwealth Ombudsman, NSW Ombudsman, Queensland Ombudsman, 2006) P Bowden, “A Comparative Analysis of Whistleblower Protections” (2006) 8 Australian Journal of Professional and Applied Ethics 2 A G Nevill and A W Ashe, Equity Proceedings with Precedents (New South Wales) (Butterworths, Sydney, 1981) Andrew Stewart, Stewart’s Guide to Employment Law (The Federation Press, 4th ed, Sydney, 2013) |
Parties: | Michael Jones (Plaintiff) University of Canberra (First Defendant) University of Canberra Union Ltd (Second Defendant) Joe Roff (Third Defendant) Stephen Parker (Fourth Defendant) David Lamont (Fifth Defendant) Australian Capital Territory and Southern New South Wales Rugby Union Ltd (Sixth Defendant) |
Representation: | Counsel Mr W Sharwood and Mr T Lynch SC (Plaintiff) Mr S Whybrow (1st – 5th Respondent) Mr M Karam (6th Respondent) Mr S Meehan (6th Respondent) (29 March 2016) |
| Solicitors Chamberlains (Plaintiff) King & Wood Mallesons (1st – 5th Respondent) Dibbs Barker (6th Respondent) | |
File Number: | SC 108 of 2016 |
REFSHAUGE J:
The applicant in these proceedings, Michael Jones, was appointed Chief Executive Officer of the Australian Capital Territory and Southern New South Wales Rugby Union Limited and commenced that employment on or about 4 January 2015.
The Australian Capital Territory and Southern New South Wales Rugby Union Ltd is commonly known as “The Brumbies”. It is convenient to refer to it in these reasons as “The Club”.
Sometime after Mr Jones commenced employment, his attention was drawn to certain commercial arrangements entered into by the Club between 2009 and 2014.
Apparently, because of some concern that had been expressed about those arrangements, the Club and the Australian Rugby Union jointly engaged the accounting firm of KPMG to conduct an investigation into the arrangements.
One of the arrangements which was subject of investigation involved the sale to a developer of the Club’s then premises in Griffith ACT and the other involved an arrangement whereby the Club entered into a series of transactions with the University of Canberra on the basis that the University would provide new headquarters for the Club and would also provide sponsorship and related benefits. That latter arrangement became known as the Alliance Agreement.
On 22 September 2015, KPMG reported on those arrangements and raised some disquieting matters about the extent of information provided to the Board of the Club and about some of the issues surrounding them.
As a result, it was agreed that the KPMG Report should be referred to the Australian Federal Police and it appears that it was referred to the police, who accepted it for the purposes of considering what criminal offences may be disclosed.
On a number of occasions, Mr Jones spoke to Professor Parker, the Vice-Chancellor and President of the University of Canberra, in which, he says, he raised concerns about the Alliance Agreement with the University. He also sent an email which he copied to Professor Parker.
Mr Jones says that the communications with Professor Parker were disclosures under the Public Interest Disclosure Act 2012 (ACT).
As a result of the disclosures by Mr Jones, the University’s solicitors wrote to the Club threatening legal action for non-compliance with the Alliance Agreement and there were other communications related to those disclosures.
In March 2015, Mr Jones attended a meeting between himself, the Chief Minister, Mr Andrew Barr, and Mr David Dawes, Chief Executive Officer of the Land Development Agency and Director-General of the Economic Development Directorate of the ACT Government.
Mr Jones says that he made a further public interest disclosure on that occasion.
Mr Jones then had further discussions with Mr Dawes in which he claimed he also made public interest disclosures.
Mr Jones claims that, as a result of these public interest disclosures, both the University of Canberra and the ACT Government expressed some unhappiness with the disclosures Mr Jones has been making. They have expressed these views to the Board.
As a result, the Board of the Club took action to stand him down temporarily “pending further legal advice regarding [his] future”. As a result, he was instructed to:
·cease attendance at the Club’s workplace;
·cease taking any action relating or in any way relating to or in any way connected with his position as CEO during the stand down period;
·make no public comment or statement regarding this or any other matter related to the Club or his employment during the stand down period.
Mr Jones says that this is detrimental action, contrary to the Public Interest Disclosure Act, and that he is entitled to be protected from the action taken by the Board. He sought an interim injunction against this and other detrimental action which he says flowed from the public interest disclosures.
On 22 March 2016, I made certain ex parte orders in the nature of injunctions against the respondents. Although they were made “until further order”, they were not intended to be other than urgent ex parte injunctions.
The matters returned before me on 29 March 2016, when I varied the orders to some extent and reserved my decision on an application to dissolve the injunctions.
Since then, there have been further proceedings to vary the orders further, particularly in relation to the disclosure of the internal affairs of the Club, including the KPMG Report, which disclosure, I was satisfied, might be a breach of Mr Jones’ contract and disclosure of commercial, in confidence, material.
Public Interest Disclosure
The Public Interest Disclosure Act is the Territory’s legislation to enable persons to make disclosure of conduct that is improper, such as constituting a criminal offence, giving reasonable grounds for disciplinary action, being maladministration and the like and, by offering protection to persons making such disclosures, encouraging such disclosures. See Ryde City Council v Petch [2012] NSWSC 1042 at [1]; Howard v Queensland [2000] QCA 223 at [6].
There has been, since 1993, similar legislation, often referring to “whistleblowers”, throughout Australia. See AG Australia Holdings Ltd v Burton (2002) 58 NSWLR 464 at 511; [164]-[167]. A brief history of the legislative efforts in Australia may be found in A J Brown, “Flying Foxes and Freedom of Speech: Statutory Recognition of Public Whistleblowing in Australia” in David Lewis and Wim Vanderkarckhove eds., Whistleblowing and Democratic Values (International Whistleblowing Research Network, 2011) at 88-90.
There are now, throughout the Commonwealth and each State and Territory, similar Acts, though in some jurisdictions they are called Whistleblower Acts. They are, unfortunately, by no means uniform in their application nor in the definitions used for relevant terms.
Several useful comparisons of the legislation of the various Australian jurisdictions have been published, most, however, prior to the enactment of the Public Interest Disclosure Act. See, for example, P Bowden, “A Comparative Analysis of Whistleblower Protections” (2006) 8 Australian Journal of Professional and Applied Ethics 2, 47 and A J Brown, Public Interest Disclosure Legislation in Australia: Towards the Next Generation (Commonwealth Ombudsman, NSW Ombudsman, Queensland Ombudsman, 2006).
The Public Interest Disclosure Act replaced the Public Interest Disclosure Act 1994 (ACT) (the 1994 Act) which was in similar but, relevantly, different terms. This followed an attempt to update the legislation in the Public Interest Disclosure Bill 2006 (ACT) which was presented to the ACT Legislative Assembly on 8 June 2006 but lapsed on 18 October 2008.
The then Deputy Chief Minister, Andrew Barr, presented the Bill for the Public Interest Disclosure Act on 7 June 2012 and said:
The bill [sic] establishes public interest disclosures, or PIDs, as a form of complaint, and provides protections to the people—sometimes called whistleblowers—who make PIDs. The bill facilitates the disclosure of suspected wrongdoing in the ACT public sector. It outlines an administrative framework for the management of PIDs and provides legal protection to people who blow the whistle on public sector wrongdoing. The bill respects the strength of character required by people to make PIDs, acknowledges the resources that should be devoted to investigating and responding to PIDs and grants all those associated with the investigation the procedural fairness that they deserve.
There has been some consideration by the courts of the 1994 Act: Berry v Ryan (2001) 159 FLR 361; Falk v Australian Capital Territory [2006] ACTSC 68. There has, however, been no consideration of the 2012 Act by the courts so far as I can determine.
It is clear from the Presentation Speech and the terms of the Public Interest Disclosure Act that it is to be regarded as beneficial legislation or, as it is sometimes called, remedial legislation. That is, it gives a benefit to a person and remedies the likelihood of injustice. See Estate of McComb [1999] 3 VR 485 at 490.
Thus, it should be given a liberal interpretation, as explained by Isaacs J in Bull v Attorney-General (NSW) (1913) 17 CLR 370 at 384. Such a liberal interpretation is not limited to the situation where there is ambiguity, however, though in that situation, ambiguous provisions will be interpreted in a manner favourable to those who benefit from the provisions. See R v Kearney; Ex parte Jurlama (1984) 158 CLR 426 at 433. Accordingly, the provisions will be interpreted to give the fullest relief that a fair meaning of the language of the provisions will allow: Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622 at 638.
In my view, this is the approach that I should take to the Public Interest Disclosure Act and I will do so.
It was, however, submitted that I should be somewhat constrained for there was a criminal offence created by the Act. Section 40 of the Public Interest Disclosure Act criminalises the taking against a person who makes a public interest disclosure of detrimental action because of that disclosure.
Thus, it was argued, if the nature and content of a public interest disclosure is not confined and the relevant provisions not construed narrowly, it is likely that innocent persons will be liable to prosecution.
While that is, perhaps, a factor that should be borne in mind, and I will do so, it seems to me that the risk suggested is unlikely to eventuate because of the terms of the provisions, which are set out below (at [37]).
It needs first to be noted that the offence provision is not one where the circumstances that the representation which constitutes a public interest disclosure are subject to absolute liability under s 24 of the Criminal Code 2002 (ACT). Thus, there is a fault element required to be proved for the fact of the disclosure as a public interest disclosure to be made out.
As the public interest disclosure is a circumstance, then the fault element is, under s 20 of the Criminal Code, one of recklessness, which requires that the person who may be charged must be actually aware that there is a substantial risk that the disclosure is a public interest disclosure and this is a subjective awareness, not one which is objective, dependent upon what a reasonable person would know. Further, it must be, having regard to the circumstances known to the person, unjustifiable to take that risk. Again, there are subjective elements, namely the circumstances known to the person, though whether it is unjustifiable to take the risk is a question of fact (s 20(3)). These are substantial protections to a person who may be charged with the offence but who does not reasonably anticipate or could not know that the disclosure is a public interest disclosure.
When approaching the legislation, then, I consider that I should proceed on the basis that the legislation is designed to encourage persons to come forward to report disclosable conduct and that if they do so, they should be protected from reprisals of the kind contemplated by the Public Interest Disclosure Act. I accept that such a person will likely have a high degree of awareness of business morality and public sector ethics but is unlikely to be very knowledgeable of the criminal law or the industrial law of the Territory. I also do not expect that such persons will study the Act in detail, or perhaps at all, before making a disclosure.
It is on this basis that I will consider the legislation in the context of the issues in this case.
The legislation
For these proceedings, the relevant terms of the Public Interest Disclosure Act are as follows:
7 Meaning of public interest disclosure
(1)For this Act, a public interest disclosure—
(a) is a disclosure of information by a person about disclosable conduct that—
(i)the person honestly believes on reasonable grounds tends to show disclosable conduct; or
(ii)tends to show disclosable conduct regardless of whether the person honestly believes on reasonable grounds the information tends to show the conduct; and
(b)includes any assistance given by the discloser during an investigation of the information mentioned in paragraph (a).
(2) However, a public interest disclosure does not include a disclosure of information by a person—
(a) that the person knows is false or misleading; or
(b) that relates entirely or in substance to a disagreement in relation to a policy about amounts, purposes or priorities of public expenditure.
Note If a disclosure is not a public interest disclosure, the person disclosing the information is not protected under this Act and there is no obligation under this Act for an entity to investigate the disclosure.
8 Meaning of disclosable conduct
(1)For this Act, disclosable conduct means any of the following:
(a) conduct of a person that could, if proved—
(i)be a criminal offence against a law in force in the ACT; or
(ii) give reasonable grounds for disciplinary action against the person;
(b) action of a public sector entity or public official for a public sector entity that is any of the following:
(i)maladministration that adversely affects a person’s interests in a substantial and specific way;
(ii)a substantial misuse of public funds;
(iii)a substantial and specific danger to public health or safety;
(iv) a substantial and specific danger to the environment.
Note Taking detrimental action is a criminal offence for par (a) (see s 40).
(2) In this section:
action includes inaction.
conduct means—
(a) for a person, regardless of whether the person is a public official for a public sector entity—conduct of, or involving, the person that adversely affects, or could adversely affect, directly or indirectly, the honest and impartial exercise of a function of a public official or public sector entity; or
(b) for a public official for a public sector entity—conduct of, or involving, the person that is or involves—
(i) the exercise of the person’s functions as a public official in a way that is not honest or is not impartial; or
(ii) a breach of trust as a public official; or
(iii) a misuse of information or material acquired in or in relation to the exercise of the person’s functions as a public official whether the misuse is for the person’s benefit or the benefit of someone else; or
(c)a conspiracy or attempt to engage in conduct mentioned in paragraph (a) or (b).
disciplinary action, against a person, means action—
(a) terminating the person’s employment; or
(b) ending the person’s appointment; or
(c) terminating the person’s contract for services.
environment—see the Environment Protection Act 1997, dictionary.
maladministration means an action about a matter of administration
that was—
(a) contrary to a law in force in the ACT; or
(b) unreasonable, unjust, oppressive or improperly discriminatory; or
(c) negligent; or
(d) based wholly or partly on improper motives.
public funds means funds that are available to, or under the control of, a public sector entity including public and trust money within the meaning of the Financial Management Act 1996.
public health or safety includes health or safety of people—
(a) under lawful care or control; or
(b) using community facilities or services provided by the public or private sector; or
(c) in workplaces.
Examples—par (a)
1 students under the care or control of a teacher
2 patients in a health facility
3 detainees in a correctional facility
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
9 Meaning of public sector entity
(1) For this Act, a public sector entity is any of the following:
(a) an ACTPS entity;
(b) a Legislative Assembly entity;
(c) an entity prescribed by regulation.
Note ACTPS entity and Legislative Assembly entity—see the dictionary.
(2) However, a public sector entity does not include an entity prescribed by regulation.
10 Meaning of public official
For this Act, a public official for a public sector entity is—
(a) a person who is or has been—
(i) an employee of the public sector entity; or
(ii) a contractor, employee of a contractor or volunteer exercising a function of the public sector entity; or
(b) a person prescribed by regulation.
11 Meaning of disclosure officer
(1) For this Act, a disclosure officer for a public interest disclosure is any of the following:
(a) for a disclosure that relates to an ACTPS entity—
...
(v) the head of an ACTPS entity; or...
12 Meaning of relates to an entity
For this Act, a public interest disclosure relates to an entity if it is about—
(a) the entity’s disclosable conduct; or
(b) for a public sector entity—the disclosable conduct of a public official for the entity; or
(c)the disclosable conduct of another person that affects the exercise of functions of—
(i) the entity; or
(ii) for a public sector entity—a public official for the entity.
13 Meaning of head of a public sector entity
For this Act, the head of a public sector entity is any of the following:
(a) for an ACTPS entity—
...
(ii) for a territory authority—the person who has responsibility for managing the affairs of the territory authority; and
(iii) for a territory-owned corporation or a subsidiary of a territory-owned corporation—the person who has responsibility for managing the affairs of the territory-owned corporation; and
(iv) for a territory instrumentality—the person who has responsibility for managing the affairs of the territory instrumentality; and
...
15 To whom may a public interest disclosure be made?
(1) A public interest disclosure may be made to—
(a) a disclosure officer; or
...
16 How may a public interest disclosure be made?
(1) A public interest disclosure may be made—
(a) orally or in writing; and
(b) anonymously; and
(c) without the discloser asserting that the disclosure is made under this Act.
Examples—par (c)
1 Tranh comments to her supervisor during a coffee break that she believes there are a number of significant irregularities in the ordering of office supplies for her business unit. Tranh does not ask or infer that the irregularities should be investigated.
2 Cheryl is a senior human resources manager and is attending a training course with Beverly, who is an employee in another directorate. Beverly tells Cheryl about employment practices of a manager in Beverly’s directorate that Cheryl believes involve substantial noncompliance with territory law. Beverly is unaware that those practices are noncompliant.
Note 1 An investigating entity may decide to not investigate an anonymous public interest disclosure if the entity is reasonably satisfied that not knowing the discloser’s name and contact details makes it impracticable for the disclosure to be investigated (see s 20 (b)).
Note 2 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
...
39 What is detrimental action?
For this Act, detrimental action is action that involves—
(a) discriminating against a person by treating, or proposing to treat, the person unfavourably in relation to the person’s reputation, career, profession, employment or trade; or
(b) harassing or intimidating a person; or
(c) injuring a person; or
(d) damaging a person’s property.
40 Offence—taking detrimental action
(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.
(2) For this Act, a retaliator takes detrimental action because of a public interest disclosure if the retaliator takes, or threatens to take, detrimental action against someone else because—
(a) a person has made, or intends to make, a public interest disclosure; or
(b) the retaliator believes that a person has made or intends to make a public interest disclosure.
(3) In determining whether a retaliator has taken detrimental action because of a public interest disclosure, it is sufficient if a reason mentioned in subsection (2) is a contributing reason.
41 Damages 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.
42 Injunction to prevent detrimental action etc
(1) O n application, the Supreme Court may—
(a) if satisfied that a person has taken detrimental action—order the person who took detrimental action to remedy the action; or
(b) if satisfied that a person is taking, or is likely to take, detrimental action—grant an injunction to prevent detrimental action being taken.
(2) An application may be made by—
(a) the commissioner; or
(b) the discloser; or
(c) a person against whom detrimental action has been or is likely to be taken.
(3) The Supreme Court may grant an interim injunction restraining a person from taking detrimental action before deciding an application for an injunction under this section.
The Evidence
On the ex parte application, the evidence consisted of an affidavit made by the applicant, Michael Jones. It had a large number of exhibits to it, including the KPMG Report. On the return date of the ex parte injunction, the sixth respondent, the Club, filed an affidavit of Angus James Thomas McKerchar.
A good deal of the evidence before me was sensitive, especially the contents of the KPMG Report, which is subject of investigation by the Australian Federal Police as to whether any criminal offences may be disclosed in it.
The public interest disclosures were also considered to be sensitive as they may disclose some of that material or lead to speculation about what it may be. This may have an unfair impact on the reputation of a number of people.
Disclosure of the KPMG Report, by making his affidavit and the exhibits to it able to be publicly accessed, might also constitute a breach of the duty of confidentiality in clause 28 of the Contract Mr Jones has with the Club.
Accordingly, I was asked to restrain publication of both the affidavits and the exhibits to Mr Jones’ affidavit.
The courts are fundamentally to be open to the public and evidence given in courts is basically to be available to all who wish to see it. This is an important principle on which our courts operate.
As I explained in R v Meegan [2014] ACTSC 263 at [8]-[14]:
8.This principle of open justice has been jealously guarded by the Courts. In McPherson v McPherson [1936] AC 177 at 200, the Privy Council stated:
Publicity is the authentic hall-mark of judicial as distinct from administrative procedure ... the court must be open to any who may present themselves for admission. The remoteness of the possibility of any public attendance must never by judicial action be reduced to the certainty that there will be none.
9.Those proceedings involved a hearing in fact held in private in the Supreme Court of Alberta, though the fact that the respondent (the plaintiff below) was a prominent politician was expressly accepted as not being the reason for the privacy.
10.In Scott v Scott [1913] AC 417 at 473, Lord Shaw of Dunfermline described the principle of open justice as “a sound and very sacred part of the constitution of the country and the administration of justice”.
11.To the same effect, Lord Loreburn said (at 445) in the same case “The inveterate rule is that justice should be administrated in open court”.
12.These cases have been followed in Australia where, as early as 1937, Jordan CJ said in Ex parte Terrill; Re Consolidated Press Ltd (1937) 37 SR (NSW) 255 at 257:
[a]s a general rule all Courts must be open to public. It is a principle of the utmost importance in the administration of justice that the liberty or rights of the subject should not be adjudicated upon by tribunals sitting in secret and behind closed doors: Scott v Scott [[1913] AC 417]: McPherson v McPherson [[1936] AC 177].
13.This general approach has been accepted in the High Court. See Dickason v Dickason (1913) 17 CLR 50 at 51; Russell v Russell (1976) 134 CLR 495 at 520, 532 and 537.
14.This approach has been enshrined in s 21 of the Human Rights Act 2004 (ACT) which requires rights to be decided by a court “after a fair and public hearing”.
See also John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344 at 352; [18].
The principle, however, does admit of exceptions. In Scott v Scott [1913] AC 417, the House of Lords acknowledged that there was an exception where the need for the court to be closed was necessary for the administration of justice, to secure that justice is done. See per Viscount Haldane LC at 437, per Earl Loreburn at 445.
This is mirrored in the Evidence (Miscellaneous Provisions) Act 1991 (ACT) which relevantly provides:
111 Prohibition of publication of evidence etc
(1) This section applies if a court considers that—
(a) the publication of evidence given, or intended to be given, in a proceeding is likely to prejudice the administration of justice; or
(b) in the interests of the administration of justice the names of any of the following people should not be published:
(i) a party to the proceeding;
(ii) a witness, or intended witness, in the proceeding.
(2) The court may, at any time during or after the hearing of the proceeding, make an order forbidding the publication of—
(a) the evidence or a stated part of the evidence; or
(b) a report of the evidence; or
(c) the name of the party or witness.
The width of the courts’ powers has been extended, but the rationale for a decision to restrain publication under the section is clear.
In this case, I gave careful consideration to the issues involved and to the contentions of the parties. No party submitted other than that the affidavits and exhibits to the affidavit of Mr Jones should be protected from publication. Mr Jones submitted that the affidavit in reply, that of Mr McKerchar, should not be so protected, but all the other parties submitted that it should not be disclosed.
It seems to me that there is, also, a somewhat stronger case for non-disclosure in the case of interlocutory proceedings where there is a need to take some care with the publication of material that cannot, at that stage, be properly tested, may not be able to be fully contradicted, and which may, ultimately, be shown should not be disclosed, even if that cannot positively be shown at that early stage of the proceedings.
This is so where the allegations that are made, for example in the KPMG Report, may have the capacity seriously to damage the reputation of some of those mentioned in it. I am, of course, not able to say at this stage whether that is so or not.
Although a number of those people are parties, they have not yet had a chance to respond in any detail to the allegations and will not have such a chance until probably the final hearing.
Accordingly, I directed that the two affidavits not be published and that they be sealed in an envelope on the file, marked “Not to be opened save by order of a judge”.
This, of course, puts some restrictions on the way in which I express these reasons, but all counsel agreed that, where matters in either affidavit were in the public domain, as there has been some publicity surrounding these proceedings, then I should not feel constrained about mentioning such matters.
The proceedings
The initial application was made ex parte. There can be no criticism of that; it is common in cases where urgent relief is necessary, especially where the giving of notice may permit the respondents to forestall the orders. See National Commercial Bank Jamaica Ltd v Olint Corporation Ltd [2009] 1 WLR 1405 at 1408; [13]. See also Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 at 681.
It has become more common, however, for the applicant in such a case, as here, not to file an originating process and, in particular, a Statement of Claim. This can make it difficult for the court to ascertain, as is necessary, the precise cause of action that the applicant asserts and in aid of which the interim relief is sought. This is undesirable and is not to be encouraged.
Indeed, in this case, no Originating Application or Originating Claim had been filed, but I was advised that relief under ss 41 and 42 of the Public Interest Disclosure Act was being sought. It was also submitted that the Act required proceedings to be commenced by Originating Application, at least where an injunction was sought. This appears to have been based on the reference in s 42 to the court having power to make an injunction “[o]n application”.
In my view, that section does not prescribe the form of originating process required. The Court Procedures Rules 2006 (ACT) do so. In my view, the proceedings for relief under either s 41 or s 42 of the Public Interest Disclosure Act should be commenced by Originating Claim.
That the proceedings have been commenced by Originating Application does not, however, render them a nullity. Rule 38 of the Court Procedures Rules deals with this issue and I will make an order in terms of r 39(2)(a) and give appropriate directions. I have already directed that a Statement of Claim (see r 50(2)) be filed and served.
The proceedings were also commenced with the moving party, Mr Jones, described as the Applicant. There is no warrant for this. That is a term used in the Federal Court (see Dictionary to the Federal Court Rules 2011 (Cth)). In this Court, the party seeking relief (save under a counter-claim) is to be referred to as the plaintiff. See r 20 of the Court Procedures Rules. The other parties are the defendants. That the originating process is an Originating Application does not affect this at all, as Div 2.2.3 of the Court Procedures Rules makes clear. There is no warrant for using other terms. See, for example, ACT Director of Public Prosecutions v King [2016] ACTSC 35 at [31]-[46]. Again, I shall give appropriate directions about this matter.
As noted above (at [57]), when the application for the interim injunction was first before me, I did not have an originating process, much less a Statement of Claim. While I did direct the applicant to file an Originating Application (with, I confess, no thought as to whether, as I have now decided, it should have been an Originating Claim), I did not address this issue further and, in particular, did not then require the applicant to file a Statement of Claim.
It seems to me that it is highly desirable for an applicant, even for urgent relief, to file at least an originating process and, if reasonably practical, a Statement of Claim (in appropriate cases). Such documents can, of course, be later amended, but they do enable the court to see, in a considered way, how the cause or causes of action claimed by the plaintiff is put. This is, of course, the purpose of pleadings (Canberra Data Centres Pty Ltd v Vibe Constructions (ACT) Pty Ltd (2010) 4 ACTLR 114 at 121; [27]), and, in this case, it would have been helpful to address the precise questions arising out of which actions by the defendants from which they should be enjoined and on what basis. This, as appears below, became an issue in the proceedings.
When I made the interim orders, I made them “until further order”. That is not, perhaps, the usual form of such orders. See A G Nevill and A W Ashe, Equity Proceedings with Precedents (New South Wales) (Butterworths, Sydney, 1981) at 198. I am not aware that it is necessarily an error to do so.
The usual form of the ex parte injunction makes it clear on its face, by limiting the period of currency of the orders, that, on the return date, the plaintiff has the onus of showing that the injunction should be continued, rather than that the enjoined party is required to show that it should be dissolved.
It is clear that the form of the injunction does not change this forensic dynamic. See Resort Hotels Management Pty Ltd v Resort Hotels of Australia Pty Ltd (1991) 22 NSWLR 730 at 731. That is the way in which I proceeded. Mr Jones bore the onus of satisfying me that the orders should remain.
The Public Interest Disclosures
Mr Jones claimed that he had made disclosures that would be public interest disclosures on eight occasions. Because of the confidentiality of them, I will not set them out in these reasons. I have extracted the relevant paragraphs in Mr Jones’ affidavit in a confidential attachment. Rather than summarise the occasions, I have merely set out the relevant paragraphs from the affidavit, with one additional reference to an exhibit.
Whether what was said on each occasion was protected and gives rise to action under the Act depends upon whether it was, under the legislation, a public interest disclosure, as defined in s 7 of the Public Interest Disclosure Act. Thus, one of the bases for protection is that it must be a disclosure about conduct that Mr Jones honestly believes, on reasonable grounds tends, to show disclosable conduct. This is the basis on which it was submitted to me that I should approach the disclosure.
Having read the KPMG Report, I am satisfied that it provides a reasonable basis for Mr Jones to believe that there was disclosable conduct referred to in the Report. I expressly refrain from identifying who may have committed such conduct. No suggestion has been made that Mr Jones did not honestly believe that to be so and, accordingly, I accept that, subject to whether the conduct disclosed was disclosable conduct, any disclosure of such conduct by Mr Jones would be a public interest disclosure.
Whether conduct is disclosable is defined in s 8 of the Public Interest Disclosure Act, which definition is a little complicated, making the protections available to a person who wishes to make a public interest disclosure needing to be careful that what they say falls within the definition.
There are two principal limbs. The first is that it must be a certain type of conduct of a person. That person, however, does not have to be a public official. Conduct is defined to mean conduct of or involving a person that adversely affects, or could adversely affect, directly or indirectly, the honest and impartial function of a public official or of a public sector entity. It would appear that the public official could be the person whose conduct is the subject of the disclosable conduct.
The conduct must be either a criminal offence against a law of the Territory or conduct that would give reasonable grounds for terminating a person’s employment, ending their appointment or terminating their contract for services. It should, thus, be either a criminal offence or conduct that is sufficiently serious that it would be likely to enable an employer to terminate the person continuing to be employed, appointed or engaged.
In order to be a public interest disclosure that is protected under the Public Interest Disclosure Act, it must be made to one of a certain number of persons specified in s 15 of that Act. One of those persons is a “disclosure officer” which is defined in s 11 of that Act to be the head (as defined in s 13 of that Act) of an ACTPS entity (as defined in s 9 of that Act). It was accepted, and I so find, that Professor Parker was, under those provisions, the head of such entities and so disclosure officers.
I also find that Mr Dawes, as Chief Executive of the Land Development Agency and Director-General of the Economic Development Directorate, is the head of an ACTPS entity and thus a disclosure officer.
The other limb of disclosable conduct is that it must be action of a public sector entity that is, relevantly, maladministration or a substantial misuse of public funds. Maladministration is defined to mean an action about a matter of administration that was contrary to a law in force in the Territory, unreasonable, unjust, oppressive or improperly discriminatory, negligent or based wholly or partly on improper motives.
Again, it appears that there is no contention other than that both the University of Canberra and the Land Development Agency and the Economic Development Directorate are public sector entities and that any maladministration within these entities or misuse of public funds in or by them would constitute disclosable conduct.
The question in issue, then, is whether the representations made by Mr Jones were on each or any occasion, a disclosure of disclosable conduct. I do not have to deal with the other issues surrounding the definitions, having regard to the concessions made by the parties and the findings that I have made.
Regrettably, I was not assisted as well as I would have wished in this regard. It seems to me that it is incumbent on a person in the position of Mr Jones to identify with reasonable specificity the way in which the conduct said to be disclosable conduct is such. For example, it is not for the court to have to ascertain whether the relevant conduct constitutes a criminal offence; the discloser should point to the relevant offence (whether in legislation and, if so, which legislation, or at common law) or to describe how the conduct is serious misconduct of a kind that would justify the termination of the employment, appointment or contract of services of the person whose conduct is in issue.
Unfortunately, such specific assistance was not provided. Some general references were made in the affidavit of Mr Jones to legislation which creates offences but without (excepting one case) any suggestion of which offences were likely to have been committed or how it is said they were. While the discloser may not know these details, I can expect his legal advisers to do so. It does not seem to me, however, that I can simply reject the contention that the claimed disclosures were of disclosable conduct without making a reasonable assessment of what was said against the relevant definition. If, however, in taking such a course, I omit or overlook some construction or approach to any of the representations that would bring it within the relevant definitions, then that becomes the responsibility of the omission by the discloser.
In this case, however, the challenge by the Club, and supported by the other parties (other than, of course, Mr Jones), was in a targeted way and this permits me to assume that, subject to some degree of responsibility for ensuring that there is a reasonable basis for holding that the disclosure is of disclosable conduct, for those disclosures that are not subject of specific challenge or so far as they are not so subject.
Further, it seems to me that, in these circumstances, each occasion of disclosure of what is said on each occasion cannot be evaluated in splendid isolation from what has earlier or also been said. Conversations are often elided where both speaker and hearer will understand what has been said by having regard to what has earlier been said.
Dealing then, briefly, with each of the disclosures, aware that they are part of the confidential schedule and so not easily comprehensible to readers who have no access to it, and conscious of ensuring that comments I now make do not breach any self-imposed restraint on publication, I make the following comments.
A number of the disclosures are about the knowledge of the Club’s Board of Directors. These were disclosures 1 and 2 as identified in the confidential Schedule. That, however, does not seem to me to be disclosable conduct. It may be a criminal offence to withhold information from a Board of Directors; for example, a director commits an offence if he or she fails to give information to a company that it needs in connection with a takeover (s 205F of the Corporations Act 2001 (Cth)).
Nevertheless, s 184 of the Corporations Act makes misuse of information by a director or officer of a company a criminal offence in the circumstances there described. In particular, under s 184(3), a person who gains information because they are an officer of a company and uses that information dishonestly or is reckless as to whether the use may result in themselves or someone else directly or indirectly gaining an advantage or in causing detriment to the corporation.
Thus, to withhold information from a Board which then proceeds to enter into a transaction that is less advantageous to the corporation than had the information been provided to the Board may constitute an offence if done dishonestly.
Thus, it is arguable that a failure to inform a Board of information may constitute an offence if done dishonestly and reckless as to whether it would cause detriment to the corporation.
In any event, the withholding of information of significance from a Board would clearly constitute serious misconduct by an officer of that corporation which would justify termination of their employment.
Thus, so far as Disclosures 1 and 2 are concerned, it seems to me that the conduct they disclose reaches the first threshold for disclosable conduct, namely being a criminal offence or reasonable grounds for disciplinary action.
Such conduct, however, must then adversely affect the honest and impartial exercise of a function of a public official.
The difficulty I have with these disclosures is to see how they may be likely, directly or indirectly, to adversely affect the honest and impartial exercise of a function of a public official or a public sector entity. That was not explained to me and I cannot see from the evidence before me how that would be so. I do not find it could not be so – I simply do not have enough evidence to make a finding that it is probably so and thus justifies a finding that it is a public interest disclosure.
Disclosure 3 is in a somewhat different category, as it clearly imports as inevitable the inference that there have been “abnormalities” in the dealings between the Club and other entities, including the University of Canberra, in the context of the earlier conversations.
It seems to me that this is sufficient to raise the issue of the reasonable likelihood that there was some conduct that would amount to disclosable conduct by a person or by the entity, namely the University.
The disclosure is very general, however, and non-specific, but that, indeed, may not render it outside the definition. It will be inevitable that a discloser will rarely be in a position to show all the elements of a criminal offence or prove it beyond reasonable doubt, for example. I do not consider that this is an obligation that should be placed on a discloser. To do so would substantially undermine the protections available to disclosers and limit it to a very small number of those minded to draw attention to the kind of improper conduct that the legislation is intended to encourage. There must, of course, be limits. I also rely, in this case, on the fact that the KPMG Report, mentioned in the disclosure, had been referred to the Australian Federal Police who were investigating whether any criminal offences could be prosecuted.
Although the Club did submit that the allegation was too general, the principal ground on which it was argued orally, however, was that it was not clear from the disclosure that a particular person had been identified as the person whose conduct was the subject of any offence or improper conduct justifying termination. As it was put in the written submissions, “There is no mention of a natural person in the conversation”.
It does not seem to me, however, that this is necessary. While what might be called an “internal discloser”, that is someone from within an entity that knows who and when relevant conduct has occurred, will be able to identify the person who is said to have engaged in the relevant conduct, that is not a necessary pre-condition if the conduct must have been engaged in by a person.
That is to say, it would substantially compromise the reach of the Public Interest Disclosure Act if a disclosure can only be made if an identified person (and, presumably, named or identified by the discloser) had to be specified.
Analogically, many complaints to police will show that a crime has been committed without the complainant being able to identify the suspect. The victims of most burglaries, for example, would be in that position. To say that a discloser must identify the individual whose conduct is the source of the criminality or misbehaviour is placing too high a threshold on the effective operation of this remedial legislation.
I am fortified in my view by the terms of the Public Interest Disclosure Act itself. In an example to s 16 of the Act, a disclosure is reported. This section relates to how a disclosure may be made. While it is intended to show specifically that a disclosure may be made orally or in writing and need not refer to the Act, the example must be taken to show that at least the essential elements have been expressed.
An example is part of the Act in which it appears (s 126(4) of the Legislation Act 2001 (ACT)) and may extend the meaning of the Act (s 132(1) of the Legislation Act). I note, in particular, that the example extends the meaning of the Act in which it appears, not just the provision to which it is an example, so it is an important construction device.
I am not prepared to find that it is necessary that an identified person – whether by name or position – is necessarily to be mentioned in a public interest disclosure.
On this basis, I am, but with some hesitation, prepared to find that disclosure 3 was a public interest disclosure.
The fourth disclosure is, perhaps, the clearest, for it refers to conduct that, to my mind, clearly falls within the definition of disclosable conduct. It is, as fairly submitted by the Club, without much particularity, but, to use an exaggeration to illustrate the point, one would not expect a full police brief to accompany a disclosure.
I also accept, given to whom it was sent, that it constituted a disclosure to Professor Parker. This is re-inforced by his response to it, namely by sending a letter to the Club threatening proceedings for defamation. This response is an important part of me coming to the view that, while the particularity is not great, Professor Parker understood it perfectly as attributing maladministration to the University. Whether, of course, that maladministration is proved or not is not for me to say at this stage. The issues in the KPMG Report have not been tested.
The fifth disclosure was made to Mr Dawes. It was submitted by the Club that it was not a public interest disclosure because it did not contain a reference to any disclosable conduct. While, at its highest, it may suggest that information was withheld from the Board of the Club that, as I indicated earlier (at [81]-[88]), is not sufficient for a disclosure of disclosable conduct.
Other than that, the disclosure was in neutral terms and did not seem to me, on the present state of the evidence, to contain a meaningful reference to disclosable conduct.
The sixth disclosure was also made to Mr Dawes and was clearly more informative, though still very general. While the subject of that disclosure was not directly expressed, the context made it clear, in my view, that it referred to the mentioned entities. The reference to the KPMG Report made the content also clear.
That it did not refer to a particular person is, as I have decided above (at [92]-[97]), not a matter that excludes the representation from being found to be a public interest disclosure.
Again, with some hesitation, I am prepared to find for the purposes of these proceedings that it was a public interest disclosure.
The seventh disclosure was also made to Mr Dawes. It must be put also in the context of the earlier conversations with Mr Dawes. Each cannot be considered in some kind of splendid isolation, as though earlier conversations did not occur.
The level of particularity is again, limited. There is, however, a more specific reference to “questionable transactions and anomalies”. While these do not, of themselves, identify matters under s 8(1)(a) of the Public Interest Disclosure Act, they are indicative of maladministration.
This is re-inforced by the reference to the KPMG Report. That a particular person is not identified does not, for the reasons earlier identified (at [92]-[97]), take the representation outside being a public interest disclosure.
Finally, the seventh disclosure was also made to Mr Dawes. I do not see this as a public interest disclosure. It refers to a person making comments to the Club Board that might constitute disclosable conduct, but there is no evidence that the person involved is a public officer nor that there is any relationship between this conduct and any public sector entity.
It may be relevant to the whole of the evidence to show that the disclosures that I have found generated concern from persons involved with the conduct disclosed which is relevant to the issue of detrimental action.
Detrimental action
The remedies sought by Mr Jones are directed towards what he says is detrimental action directed at him because of the public interest disclosures that I have found that he made.
Detrimental action, as defined in s 39 of the Public Interest Disclosure Act, is action that relevantly involves discrimination in reputation, career, profession, employment or trade, or harassment or intimidation because of the disclosure.
Mr Jones says that the decision of the Club to stand him down from his position as Chief Executive Officer is detrimental action. He also says that the decision has some consequential effects on his reputation and he has set out comments made by various people which he says shows that damage caused to him.
He has also expressed concern that Professor Parker, as a result of the disclosures to him, has indicated that he will not “attend an event which is hosted [sic] or associated with Michael Jones or be seen in any way to be endorsing the management culture of the Brumbies”. This, he says, is damaging to his reputation.
It seems clear to me that the detrimental action is not confined to the person to whom or against whom the public interest disclosure is made. Thus, as here, where a private sector employer considers that the making of the disclosure is detrimental to its business, reprisals or retaliation (to use words common in this area) taken against the employee because of the disclosure would constitute detrimental action.
No party submitted that the actions I have described were not, at least for the purposes of these interlocutory proceedings, detrimental action.
At issue, however, was whether the detrimental action was caused by the disclosures.
I accept that there must be some causal connection between the detrimental action and the disclosure. So much was decided, though on somewhat different legislation, namely the 1994 Act, in Falk v Australian Capital Territory at [36]. In Berry v Ryan at [24], again on the earlier legislation, this Court held that the disclosure need not be the sole cause of the taking of detrimental action but it must be the dominant cause. I accept that this approach is applicable to this legislation. Of course, as also held in Berry v Ryan at [75], the plaintiff bears the onus of proof.
The evidence of Mr Jones, which I will not set out in detail, was that the Chair of the Board of the Club explained to Mr Jones that pressure was being placed on the Club to terminate his contract as a way of resolving “these issues”. In the absence of any explanation other than that the making of the public interest disclosures, thereby stirring up concerns in both the University of Canberra and the ACT Government about the allegations and the effect of them on the relationship between the Club and these bodies, were “these issues”, I am prepared to accept that this is the meaning of the Chair’s comments.
The affidavit of Mr McKerchar did show that the Board had other concerns, such as that it was said Mr Jones was “too direct and aggressive”. This was said to be his conduct in relation to the Club’s stakeholders.
While this may be said, devoid of context, to be a legitimate concern of an employer over the conduct of an employee who is behaving in a way the Board considers is detrimental to the Club’s interest and policies, it must be considered in the context.
Mr McKerchar also deposed that at the meeting during which the decision of the Board was made, there was no mention of the disclosures and the focus was said to be on the state of relationships between the Club and its major sponsors and the participation of Mr Jones in a media interview which included what was said to be comments about his position, despite a direction of the Chair not to make such a comment.
Again, context is important.
In the first place, no evidence was adduced contradicting or even disputing the evidence of the conversation between the Chair of the Board and Mr Jones. Thus, there was a direct link expressed between the disclosures, as I have interpreted “these issues” to mean, and the pressure to relieve Mr Jones of his position. That evidence stands relevantly unchallenged.
Secondly, the major sponsors to which Mr McKerchar referred are the University of Canberra and the ACT Government to whom, in the latter case, in the person of Mr Dawes, the disclosures had been made and who had, on the evidence, been at least disconcerted by the disclosures and that Mr Jones was making them. Thus, the concern expressed by the Board about relations with the major sponsors, at least in the absence of any other evidence, can only be read as related to the disclosures Mr Jones had made. To suggest otherwise is, at best, disingenuous.
While it was pointed out that the ACT Government is not an ACTPS entity, the Agency and the Directorate which Mr Dawes led are part of that Government – the Executive part, of course – and I am prepared to find that it is clear from the dealings to which Mr Jones deposes, that the ACTPS entities are integral parts of the body, which is the major sponsor and centrally interested in the Club and its relevant activities, such that any concerns expressed to these ACTPS entities will have an important, perhaps dominant, effect on the attitude of the Government.
Thirdly, the direction of the Chair was not to mention the detrimental action that had been taken and must have the effect that, by preventing Mr Jones from responding to what the Board had done, compliance with the direction would leave his reputation at risk. The direction would thus be detrimental action in itself.
Accordingly, I am satisfied that, taken as a whole, the decision of the Board shows, to the relevant degree, that it was taken because of the public interest disclosures made by Mr Jones, at least as a dominant factor, and that this is sufficient to the purposes of the interlocutory proceedings.
Injunction
Before granting an interlocutory injunction, the court must be satisfied of three matters: that there is a real case to be decided between the parties (sometimes described as a serious issue to be tried), that damages are an inadequate remedy, and that the balance of convenience favours the grant of the order. See, for example, Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618. See also Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153 and Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at 68; [19].
So far as the first issue is concerned, the High Court has said in Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, that it is necessary to identify the legal or equitable rights which are to be determined at the trial, in respect of what final relief is sought.
Mr Jones claimed, initially in his Originating Application, damages for breach of contract. This is a common law remedy which, it was admitted, would not ordinarily attract injunctive relief.
Nevertheless, as noted in Andrew Stewart, Stewart’s Guide to Employment Law (The Federation Press, Sydney, 2013), 4th ed at 339-40; [17.6], there are exceptions to that “rule” and, especially in interlocutory proceedings, such orders may be made where the plaintiff is seeking interim relief pending a full trial of the legality of his or her termination of employment.
I accept that, as Professor Stewart says, these such injunctions must generally be granted only in exceptional circumstances. I have not had the time to research the issue in detail and no party gave me any particular help in that task.
I also note that, while it was submitted on behalf of the Club that there was no final injunctive relief sought against it under s 43 of the Public Interest Disclosure Act, there could not be an interim injunction granted under s 42(3) that does not oust the common law which co-exists and would allow injunctive relief if otherwise available.
In fact, however, Mr Jones amended the Originating Application to add a prayer for relief restraining the Club from terminating his employment. While that does not address the stand down, the facts clearly show that the Club is at least contemplating such a termination. The stand down is clearly a preliminary step to the possibility of a termination, dependent, apparently, on legal advice.
This amendment, in my view, answers the Club’s challenge to the power I have to make an injunction in the circumstances, even were I not to be otherwise satisfied that I had the power.
It also resolves the question of whether damages are an adequate remedy, for the issues of detrimental action, which is to be prohibited, transcends that question, given the relevant facts of damage to reputation, career and profession which are, in my view, to be protected under the Public Interest Disclosure Act by, inter alia, injunctive relief.
Finally, the balance of convenience is of concern. I accept the submission of the Club that the restraint on the stand down will make the Club’s “corporate governance structure unworkable” is a very relevant factor. Indeed, this is a powerful factor that Professor Stewart identified in Stewart’s Guide to Employment Law at 339; [17.5] as one of the primary reasons why reinstatement is rarely an option following an improper termination of employment, because of the loss of trust and confidence between employer and employee should be an integral part of the contract of employment.
I have given anxious thought to this issue. It seems to me that to limit an injunction under the Public Interest Disclosure Act so that it could not prevent termination even just on an interim basis, would mean that much of the remedy that the Act seeks to provide would be eliminated or, at least, eviscerated. I am not satisfied that the Act so intends.
Having said that, the injunction should not be so wide as to prevent the Club from, apart from a reprisal for the making of the public interest disclosures by Mr Jones, properly supervising and exercising corporate governance control over him as its employee.
I am re-inforced in my conclusion by the existence in the Corporations Act of Pt 9.4AAA which relates to the protection of whistleblowers within a corporation.
Although this is not a power that is yet sought to be activated by Mr Jones, I note that s 1317AB of the Corporations Act prevents a company from enforcing any contractual remedy against a discloser on the basis of the disclosure that the person has made.
This is some indication that the protection of persons who make a disclosure should receive the kind of protection that is here envisaged and that it is not inconsistent with the continued employment of Mr Jones.
I recognise that such analogy must be treated with caution; it is a different Act in a different jurisdiction and on a different, though related, topic (disclosure about private companies rather than about public sector officials and entities) but it has some limited relevance in understanding what may, in the circumstances, be permissible.
The implementation of such an order will be a challenge. Indeed, I accept that, ultimately, it may prove unworkable but I do not see that it is necessarily so and that a proper modus vivendi cannot be implemented which would prevent what the Public Interest Disclosure Act proscribes and yet not use that as a stalking horse to render Mr Jones immune from proper supervision and direction.
It is important to recognise, too, that the courts will not ordinarily make orders to superintendence enforce contracts of personal service that require continued superintendence by the court. See J C Willliamson Ltd v Lukey (1931) 45 CLR 282 at 292-3. That approach needs to be respected.
On the other hand, the court must be able to craft an order that will recognise the relief to which the plaintiff is entitled but which will not intrude in the proper control of the Board to an unreasonable degree.
Conclusion
I am satisfied that Mr Jones has proved, to the relevant degree, that the injunctions I have granted should not be dissolved.
I accept, however, that on an interim basis, they need to be varied.
Thus
1. Order 3 as it now is should omit in paragraph (a) “28 March 2016” and substitute “until further order”.
2. A new order 3D should be added along the following lines:
3D It is noted that, provided five working days’ notice is given in writing to the Plaintiff, the Sixth Defendant is not restrained under order 3(b) from exercising any rights it may have under the contract of employment between it and the Plaintiff to terminate the contract consistent with its terms other than for any reason related to the public interest disclosures made to Professor Stephen Parker or Mr David Dawes.
I will, as foreshadowed, order under r 39(2)(a) of the Court Procedures Rules, that the proceedings continue as if the Originating Application were an Originating Claim.
I will, as also foreshadowed, direct that the title of the proceedings be amended to refer to the parties as “Plaintiff” not “Applicant” and “Defendant” not “Respondent” and that the orders made to date be remade to reflect this change, as shown in my draft new order 3D above (at [152]).
I expect that, as intimated at the hearing on 15 April 2016, there will be other amendments to the orders. I have received some submissions on them, though a little late. It may be preferable for the parties to confer with a view to making a consolidated set of orders in accordance with these reasons.
I also note that, in the time available to me, I have not been able to prepare reasons for declining to make the orders sought by Mr Jones in his application heard on 15 April 2016 to re-open. Those reasons will be delivered in due course.
| I certify that the preceding one hundred and fifty-six [156] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 21 April 2016 |
4
16
9