King v SA Psychological Board

[1998] SASC 6621

KING  v  SA PSYCHOLOGICAL BOARD

Magistrates Appeal

Bleby J

This is an appeal against a decision of the Equal Opportunity Tribunal presided over by a Judge of the District Court. The Tribunal’s jurisdiction arose under s9 of the Whistleblowers Protection Act 1993 to which I shall return. That section provides that an act of victimisation under that Act may be dealt with as if it were an act of victimisation under the Equal Opportunity Act 1984.

The right of appeal to this Court is conferred by s98 of the Equal Opportunity Act 1984. The nature of the appeal is governed by the following subsections of s98:

“(4).... An appeal under this section must be conducted as a review of the decision or order of the Tribunal.

(5)... The Supreme Court may, on the hearing of an appeal, exercise one or more of the following powers:

(a).... affirm, vary or quash the decision or order appealed against, or substitute, or make in addition, any decision or order that should have been made in the first instance;

(b).... remit the subject matter of the appeal to the Tribunal for further hearing or consideration or for rehearing;

(c).... make any order as to costs or any other matter that the justice of the case requires.”

Because the Tribunal was presided over by a Judge of the District Court, r96.04 of the Supreme Court Rules 1987 requires that the appeal be to the Full Court of this Court, “unless a Judge, on an application made within seven (7) days of the filing and service of the Notice of Appeal by any party to the appeal, decides that the subject matter of the appeal is of such a nature as not to warrant the attention of the Full Court in which case the appeal shall be heard and determined by a single Judge”. The Notice of Appeal was filed on 22 January 1998. However, an application under r96.04 was not made until 24 March 1998, two days before the listing of the appeal for hearing before me. Pursuant to r3.04, I extended the time within which to make such an application and, with the consent of the respondent, I decided that the subject matter of the appeal was of such a nature as not to warrant the attention of the Full Court. I then proceeded to hear the appeal myself.

Shortly before the appellant’s claim of victimisation was to be heard before the Tribunal, the appellant, by letter, withdrew his complaint. The respondent made an application for costs on the ground that the complaint was frivolous or vexatious. Section 26 of the Equal Opportunity Act relevantly provides as follows:

“26.(1)...... The Tribunal may make an order for costs in any proceedings in accordance with the scale prescribed for that purpose -

(a)where in the opinion of the Tribunal the proceedings are frivolous or vexatious; or

(b).... where in the opinion of the Tribunal the proceedings have been instituted or prosecuted for the purpose of delay or obstruction.

………”

The Tribunal acceded to the respondent’s application under that section, and it is against that order that the present appeal is now brought. It is therefore necessary to give some consideration to the circumstances surrounding the appellant’s complaint to the Commissioner for Equal Opportunity, because it was that complaint which was referred to the Tribunal pursuant to s95(8)(c) of the Equal Opportunity Act 1984.

At the time when the Tribunal considered the respondent’s application, it had before it some particulars of the appellant’s complaint contained in a “Notice of Complaint” dated 24 June 1996, a document entitled “Complainant Outline of Argument” dated 26 September 1996 but apparently filed on 7 February 1997, a document entitled “Further Particulars of Victimisation and Detriment” also dated and filed 7 February 1997 and the appellant’s letter of withdrawal dated 10 September 1997.  The respondent had filed various answering documents, but in the circumstances facing the Tribunal, it having had no evidence placed before it, it necessarily had to assume, in favour of the appellant, that the appellant’s factual case, as discerned from the abovementioned documents, would be made out.  It was on that basis that the Tribunal, correctly in my view, approached the question of whether the proceedings were frivolous or vexatious.

According to the appellant’s documents, he had made a written complaint to the respondent on 11 December 1989 complaining about the conduct of a named psychologist.  Section 25 of the Psychological Practices Act 1973 provides that the Registrar under that Act may, of his own motion, and shall, at the direction of the SA Psychological Board, make any investigation that he or the Board considers necessary or expedient for the purpose of determining any application or other matters before the Board.  The Registrar is required to report in writing to the Board upon such investigation. 

Section 26 of the Psychological Practices Act enables the Board, upon the application of any person or of its own motion, to enquire into the conduct of any registered psychologist.  After conducting an inquiry, for which the Act specifies certain procedures, the Board, if satisfied that there is proper cause for disciplinary action, may reprimand, suspend the registration for not more than twelve months or cancel the registration of a registered psychologist.

The appellant’s 1989 complaint was apparently dealt with by the Registrar, and the Board saw fit to take no further action in the light of his report.

The Whistleblowers Protection Act 1993 came into operation on 20 September 1993. On 5 April 1995 the appellant re-submitted the 1989 complaint to the respondent as a “disclosure” under the provisions of the Whistleblowers Protection Act 1993. Neither the terms of the original 1989 complaint nor the 1995 “disclosure” were before the Tribunal. However, the particulars of the appellant’s complaint indicated that the 1995 disclosure “referred to serious malpractice, ‘misuse of psychiatry’ and criminal defamation involving [the named psychologist] and at least two senior Public Servants ….”. The particulars went on to allege that the disclosure “was a repeat of a complaint made to the Board in December 1989 (which was then not properly investigated also) and which was re-submitted to the Board in April 1995, under the provisions of the Whistleblowers Protection Act ...”. The appellant’s complaint to the Equal Opportunity Commissioner, which had been referred to the Tribunal under s95(8)(c) of the Equal Opportunity Act, was that the respondent did not properly investigate the disclosure made in April 1995.

The particulars also disclosed that in 1994 the appellant had raised the same matter with the South Australian Ombudsman, also as an alleged disclosure under the Whistleblowers Protection Act.  In relation to that complaint the appellant had also alleged an act of victimisation against the Ombudsman which had been the subject of an earlier determination by the Tribunal on 7 October 1997.

The complaint of the appellant in this case was that by virtue of the respondent’s failure properly to investigate his “disclosure” of 5 April 1995, the respondent had committed an act of victimisation against him. Section 9(1) of the Whistleblowers Protection Act reads as follows:

“9.(1)........ A person who causes detriment to another on the ground, or substantially on the ground, that the other person or a third person has made or intends to make an appropriate disclosure of public interest information commits an act of victimisation.”

“Detriment” is defined in subs(4) which reads as follows:

“(4).. In this section -

‘detriment’ includes -

(a).... injury, damage or loss; or

(b).... intimidation or harassment; or

(c).... discrimination, disadvantage or adverse treatment in relation to a person’s employment; or

(d).... threats or reprisal.”

For the purposes of the Act, “public interest information” is defined in s4 as follows:

“‘public interest information’ means information that tends to show -

(a)that an adult person (whether or not a public officer), body corporate or government agency is or has been involved (either before or after the commencement of this Act) -

(i)     in an illegal activity; or

(ii)    in an irregular and unauthorised use of public money; or

(iii)   in substantial mismanagement of public resources; or

(iv).. in conduct that causes a substantial risk to public health or safety, or to the environment; or

(b).... that a public officer is guilty of maladministration in or in relation to the performance (either before or after the commencement of this Act) of official functions.”

If the appellant was to succeed in his complaint before the Tribunal, he had to establish that there had been an act of victimisation as defined in s9(1) of the Whistleblowers Protection Act 1993. That means that he had to establish the following facts:

(1)............. that the appellant made a “disclosure” to the respondent;

(2)... that the disclosure was of “public interest information” as defined in the Act;

(3)... that the disclosure was appropriate;

1. that the appellant, or some other person, suffered “detriment” as defined in s9(4) of the Act;

1. that the detriment was caused by the respondent;

and

1. that it was caused on the ground, or substantially on the ground, that the appellant made the disclosure.

For the purposes of this case, I am prepared to assume that the information allegedly given to the respondent by the appellant was “public interest information” as defined in s4 of the Act, although on the material before the Tribunal, that is far from clear. I am also prepared to assume that if there was a disclosure, it was “appropriate” for the purposes of s9(1) of the Act. The first question to consider is whether, on the particulars provided by the appellant, there was a “disclosure” for the purposes of s9(1).

On the appellant’s own case, the information which he provided to the respondent on 5 April 1995 was a repeat of a complaint he had previously made to the respondent in December 1989.  To disclose in this context means “to open up to the knowledge of others; to reveal” (Shorter Oxford English Dictionary).  A disclosure is therefore the act of disclosing or opening something up to view or revealing it.  A necessary implication is the information disclosed has not previously been revealed to the person to whom it is disclosed.  This meaning of “disclosure” is entirely consistent with the stated objects of the Act contained in s3 which provides:

“3..... The object of this Act is to facilitate the disclosure, in the public interest, of maladministration and waste in the public sector and of corrupt or illegal conduct generally -

(a)     by providing means by which such disclosures may be made; and

(b)     by providing appropriate protection for those who make such disclosures.”

The assumption behind the Act is that the information disclosed has not previously been made known to the authority concerned, and the object is to ensure that persons who make known such information should have adequate protection when they make it known.  As the relevant information had already been made known by the appellant to the respondent in 1989, there was nothing new to disclose, and on the appellant’s case as particularised by him, there was no relevant disclosure.

The next question to be considered is whether the appellant suffered a “detriment” as defined in s9(4) of the Act. In his Notice of Complaint dated 24 June 1996, he alleges that the detriment suffered was “discrimination” and “denial of justice” by “not properly investigating a disclosure”. In addition, the combined effect of paragraphs 2 and 4 of his “Further Particulars of Victimisation and Detriment” dated 7 February 1997 is that the alleged refusal by the respondent to investigate his disclosure “discriminates against” the appellant and caused harm or hurt, such as “stress, loss of professional credibility and respect, failure to remove a stigma, failure to remove a criminally false psychological report, denial of justice, etc”.

It is not necessary in these proceedings to determine the full extent of the definition of “detriment” contained in s9(4) of the Whistleblowers Protection Act 1993. I am prepared to assume, for present purposes, that it is wide enough to cover loss of reputation and some forms of stress disorder, although I doubt whether it covers discrimination at large, given the limitation contained in paragraph (c) of the definition requiring, in the case of discrimination, relationship to a person’s employment. I am also prepared to assume the allegations in the Notice of Complaint and Further Particulars of Victimisation and Detriment are wide enough to include allegations of some form of stress disorder and loss of reputation. However, I should not be taken as conceding that the definition of “detriment” is sufficiently wide to cover the appellant’s allegations. If, for example, the evidence were to show that he merely had some grievance that the respondent had not performed its statutory duty, I doubt whether the appellant could be shown to have suffered “injury, damage or loss”, being the normal meaning of the word “detriment” or whether he could be shown to have suffered detriment in the extended meanings contained in the other paragraphs of the definition. However, for present purposes I must assume the most favourable case possible from the appellant’s point of view, and I therefore assume that he has suffered a detriment.

The appellant must then allege that that detriment was caused by the respondent and on the ground, or substantially on the ground, that he made the disclosure.  In my opinion, that means that the respondent must have caused the detriment by virtue, or substantially by virtue, of the fact of the disclosure in itself.  In other words, it must be shown that because the appellant made a disclosure of public interest information to the Board, the Board caused him some detriment.  In effect, it must be some form of reprisal for the fact of making the disclosure. 

The difficulty for the appellant is that nowhere in the documents he has provided does he make that suggestion. Merely because the respondent failed to hold a formal inquiry into the appellant’s complaint does not mean that it did so by way of some form of reprisal against the appellant for making the complaint. The failure to conduct a formal inquiry is just as consistent with the Board having reached the view that the information properly before it did not merit a formal inquiry. Far from suggesting that the detriment (if there was any) was caused by the Board on the ground, or substantially on the ground, that the appellant had made the disclosure, it is sufficiently clear from his allegations that the losses which the appellant alleges are losses that can only be remedied not only by a proper investigation carried out by the respondent, but by an investigation which brings about a particular result. The appellant’s real complaint is that the respondent has not carried out a disciplinary inquiry that brought about that result. Only that result will alleviate his alleged detriment. The appellant does not even allege that the investigation, if properly conducted, would necessarily lead to the conclusion that he desires. In paragraph 6 of his Notice of Complaint, the appellant claims that the psychologist’s behaviour is contrary to several sections of the Code of Professional Conduct and is contrary to s26(3)(b) of the Psychological Practices Act 1973 and s257 of the Criminal Law Consolidation Act 1936.   By paragraph 13 of the same particulars, he alleges that by failing properly to investigate these matters, the Board could be corruptly involved in a scandalous cover-up of most improper behaviour - and is involved in a gross denial of justice (my emphasis).

Therefore, the appellant’s detriment (if there is any) is alleged to have been caused not on the ground, or substantially on the ground, that he made the disclosure, but on the ground that the Board did not act on the disclosure, and did not reach the conclusion he wanted it to reach.

The appellant, in his letter of withdrawal of the proceedings dated 10 September 1997 claimed that his decision to withdraw was made because of the revelation that the Ombudsman’s Office would continue to conduct a proper inquiry into his allegations against the Board if his complaint was withdrawn.  In his argument before me, he relied heavily on the Ombudsman’s continued investigation of his complaint about the Board’s failure to conduct an inquiry as some vindication of his position and justification for the making of his complaint to the Commissioner for Equal Opportunity, and therefore to the Tribunal. 

The Ombudsman is empowered by s13 of the Ombudsman Act 1972 to investigate any “administrative act”. By definition that means “an act relating to a matter of administration on the part of an agency to which [the] Act applies”. It would appear that the respondent is such an authority. However, s13(3) of the Ombudsman Act requires that the Ombudsman must not investigate any administrative act where the complainant is provided, in relation to that administrative act, with a right of appeal, reference or review to a court, tribunal, person or body under any enactment, unless the Ombudsman is of the opinion, that it is not reasonable, in the circumstances of the case, to expect that the complainant should resort, or should have resorted to, that appeal, reference or review.  Therefore, as long as the appellant maintained that he had a right to proceed with his claim in the Tribunal, it was improper for the Ombudsman to continue any investigation of his complaint against the respondent.  Indeed, the Ombudsman could continue his investigation only if he was satisfied that the appellant did not have a right to any such appeal, reference or review. 

By his withdrawal of the complaint to enable the Ombudsman to proceed, the appellant was, in effect, acknowledging that he had no legitimate right. Otherwise, it would have been impossible for the Ombudsman to proceed. I have no information as to whether or not the respondent properly dealt with the appellant’s complaint, and if I did, it would be improper for me to venture into that area. That is a matter which, it appears, is now being investigated by the Ombudsman. That investigation, however, cannot vindicate the complaint of victimisation against the respondent under s9 of the Whistle Blowers Protection Act 1993.

The next question which has to be determined is whether, in the circumstances of the allegations as I have described them and of the withdrawal, the Tribunal was justified in reaching the opinion that proceedings were frivolous or vexatious.  As Toohey J pointed out in Jones v Cusack (1992) 109 ALR 313 at 315-316, the question is whether the proceedings themselves were vexatious and not whether they have been instituted vexatiously. It is not the appellant’s belief in the correctness of his arguments with which the Court is concerned. Proceedings will be frivolous or vexatious if the litigation can be seen to be futile and destined to lead only to expense and inconvenience for the parties where there is no possibility of the action proceeding: Sykes v The Governor-General (1995) 69 ALJR 884. From my analysis of the appellant’s complaint before the Tribunal, it is clear that, in my opinion, there are at least two reasons why the complaint had no prospect of success, and strong evidence of the appellant having conceded that by his withdrawal. Accordingly, it was open to the Tribunal to hold that the proceedings were frivolous and vexatious for the purposes of s26(1) of the Equal Opportunity Act 1984, and it was therefore within the discretion of the Tribunal to make the order for costs which it did. The appeal is therefore dismissed.