Morgan v WorkCover Corporation

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
MORGAN v WORKCOVER CORPORATION
[2013] SASCFC 139
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice Blue)
19 December 2013
INTELLECTUAL PROPERTY - CONFIDENTIAL INFORMATION - OBLIGATION OF CONFIDENTIALITY
STATUTES - ACTS OF PARLIAMENT - ENFORCEMENT OF STATUTORY RIGHTS AND REMEDIES - BREACH OF STATUTORY DUTY
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
ESTOPPEL - ESTOPPEL BY JUDGMENT - RES JUDICATA OR CAUSE OF ACTION ESTOPPEL - GENERALLY
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PROVISOS
Ms Morgan sued WorkCover in the District Court for damages for breach of duty of confidence and breach of statutory duty.
Ms Morgan wrote a letter to the Chief Executive Officer of WorkCover. She said that she had been told by one WorkCover employee, Mr Mallard, that a doctor who provided a report for WorkCover received a commission from WorkCover, by another employee that this was not so and she did not know what the true position was but, if it was the case, it was unfair. She also said that Mrs Mallard had told her that, if WorkCover did not pay for an overseas holiday and TV security system, she would not give evidence for WorkCover in a matter involving her compensation claim and, in this respect, her husband had a very influential position at WorkCover. She also said that Mrs Mallard had worked cash in hand for her employer.
Upon receipt of the letter, the Chief Executive Officer immediately provided a copy to Mr Mallard who showed it to Mrs Mallard. This resulted in the Mallards instituting defamation proceedings against Ms Morgan in the Magistrates Court. A Magistrate upheld Mr Mallard's defamation claim but rejected Mrs Mallard's claim. Ms Morgan incurred costs defending the claims and was obliged to pay half of Mr Mallard's legal costs as well as damages of $10,000.
The Whistle Blowers Protection Act 1993 (SA) confers protection upon persons who make an appropriate disclosure of public interest information. Section 7 creates an obligation on the person to whom such disclosure is made to maintain confidentiality in respect of the identity of the informant, except so far as necessary to ensure that the matters disclosed are properly investigated. Ms Morgan contended in the District Court that WorkCover breached section 7 by disclosing the letter and her identity to the Mallards and that this caused loss.
The trial Judge found that WorkCover's provision of the letter to the Mallards did not breach the Act because he found that Ms Morgan was not motivated by a desire to make a public interest disclosure and provoke an independent examination but rather to damage the reputation of the doctor and the Mallards. He also found that Ms Morgan had not proved that she suffered any loss caused by any breach of the Act.
Ms Morgan appeals against the dismissal, contending that the trial Judge asked himself the wrong question being Ms Morgan's motivation in making the disclosure, failed to ask himself the right questions whether Ms Morgan made an appropriate disclosure of public interest information and erred in failing to find that WorkCover breached section 7 .
Held (by Blue J, Kourakis CJ and Sulan J agreeing):
1. The trial Judge failed to make the necessary findings of fact and failed to decide the necessary issues required to be determined to decide whether there was a breach of section 7 of the Act (at [71]-[89]).
2. The trial Judge erred in identifying Ms Morgan's motivation for making the disclosure as determinative of the question whether she made an appropriate disclosure of public interest information (at [74]).
3. The exception to section 7 did not apply: it was not necessary for WorkCover to disclose either the letter or Ms Morgan's identity to the Mallards to ensure that the matters to which the information related were properly inviestigated (at [99]-[106]).
4. The trial Judge erred in concluding that a breach of section 7 by WorkCover, if assumed, did not cause any loss or damage to Ms Morgan. Ms Morgan suffered at least the loss of legal costs incurred in defending the Magistrates Court action by Mrs Mallard and arguably (depending upon findings which the trial Judge ought to have made but did not make) also legal costs incurred in respect of Mr Mallard's action in the Magistrates Court (at [112]-[118]).
5. In relation to WorkCover's alternative contention on appeal, Ms Morgan was not precluded in the District Court action against WorkCover by abuse of process principles from contending that she believed that the doctor may have been receiving a commissiion from WorkCover because that question had been decided against her in the Mallards' defamation action in the Magistrates Court (at [148]-[155).
6. Appeal allowed. Judgment of the trial Judge set aside and matter remitted to the District Court for a new trial (at [163]).
Equal Opportunity Act 1984 (SA); Freedom of Information Act 1991 (SA); Whistleblowers Protection Act 1993 (SA) ss 3, 4, 5, 7, 9, 10; Workers Rehabilitation and Compensation Act 1986 (SA), referred to.
Vines v Djordjevitch (1955) 91 CLR 512 , applied.
Arthur J S Hall & Co v Simons [2002] 1 AC 615; Connelly v Director of Public Prosecutions [1964] AC 1254; D'Orta Ekenaike v Victorian Legal Aid [2005] HCA 12; (2005) 223 CLR 1 ; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 ; Hunter v Chief Constable of the West Midlands Police [1982] AC 529; Reichel v Magrath (1889) 14 App Cas 665; Rippon v Chilcotin Pty Ltd (2001) NSWCA 142: (2001) 53 NSWLR 198; Secretary of State for Trade and Industry v Bairstow [2003] EWCA Civ 321; [2004] Ch 1 ; South Australian Housing Trust v State Government Insurance Commission (1989) 51 SASR 1 ; Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699; State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Tort Reports 81- 423 ; Walpole v Patridge & Wilson [1994] QB 106 ; Walton v Gardiner (1993) 177 CLR 378, discussed.
Australian Medic-Care Company Ltd v Hamilton Pharmaceutical Pty Ltd [2009] FCA 1220; (2009) 261 ALR 501; Batistatos v Roads and Traffic Authority (NSW) (2006) CLR 256; Byrne v Australian Airlines Ltd (1995) 185 CLR 410; PNJ v The Queen [2009] HCA 6; (2009) 83 ALJR 384; Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Rogers v The Queen (1994) 181 CLR 251, considered.

MORGAN v WORKCOVER CORPORATION
[2013] SASCFC 139
Full Court: Kourakis CJ, Sulan and Blue JJ

KOURAKIS CJ. I agree with the reasons of Blue J.
SULAN J. I also agree with the reasons of Blue J and the orders that he proposes.
BLUE J. This is an appeal against the dismissal by a District Court Judge of an action for damages.
The appellant Angela Morgan sued the respondent WorkCover Corporation in the District Court for damages for inter alia breach of duty of confidence and breach of statutory duty. The action related to WorkCover’s disclosure to Mr Mallard of inter alia a letter sent by Ms Morgan to WorkCover dated 1 November 1994 (“the Letter”). Ms Morgan contended that the Letter provided information to WorkCover on a confidential basis and was an appropriate disclosure of public interest information under the Whistleblowers Protection Act 1993 (SA) (“the Act”). Ms Morgan contended that Workcover disclosed the Letter and her identity in breach of its obligations under the Act. Ms Morgan claimed damages caused by WorkCover’s breaches, including costs incurred by her in litigation against Mr and Mrs Mallard and consequential losses.
The trial Judge dismissed Ms Morgan’s action because he concluded that WorkCover’s provision of the Letter to the Mallards did not breach the Act and consequently there was no breach of duty of confidentiality or statutory duty. He also concluded that any breach of the Act had not caused loss to Ms Morgan.
Ms Morgan appeals against the dismissal, contending that the Judge erred in finding that WorkCover did not breach the Act. The principal questions which arise on the appeal are as follows.
1.Did the trial Judge make findings of fact and determine issues which were required to be made and determined to decide whether there was a breach of section 7 of the Act and give reasons for such findings and determinations?
2.Did the Letter convey any items of public interest information within the meaning of the Act?
3.In respect of any item of public interest information, did Ms Morgan believe on reasonable grounds that the information was true or that it may be true and was of sufficient significance to justify disclosure for investigation so as to comprise an appropriate disclosure within the meaning of the Act?
4.Was it necessary for Mr Owens to divulge Ms Morgan’s identity to the Mallards to ensure that the matters to which the information related were properly investigated?
5.Did the disclosure to the Mallards cause loss or damage to Ms Morgan?
6.Was it an abuse of process for Ms Morgan to bring the action against WorkCover making an allegation which had been decided against her in earlier litigation against the Mallards?
Questions 2 to 5 arise on Ms Morgan’s appeal to this Court. On the hearing of the appeal, the Court raised whether question 1 needed to be decided before those questions could be answered. This prompted Ms Morgan to seek permission to amend her grounds of appeal to raise the adequacy of the Judge’s reasons. On the hearing of the appeal, WorkCover made an alternative contention that question 6 should be answered in its favour and that this would be determinative of the appeal notwithstanding that the Judge did not decide the case on that basis.
Background
At all material times in 1994, Mr Owens was the chief executive officer of WorkCover. Ms Magtengard was the manager of and Andrew Thompson and Ian Basey were senior investigators in Workcover’s Fraud Prevention Department. Mr Mallard was the chief internal auditor at WorkCover.
In March 1991, Ms Morgan suffered an injury to her neck and back in the course of her employment. She was paid workers compensation by WorkCover under the Workers Rehabilitation and Compensation Act 1986 (SA) (“the Workers Compensation Act”).
In April 1993, Mrs Mallard commenced employment as a cook by Futureside Pty Ltd (“Futureside”) at the Pelican Plaza Chicken and Seafood Shop (“Pelican Plaza”). The directors of that company were Mr Amanatidis and Ms Zelepos who were brother and sister. Ms Morgan was a friend of Ms Zelepos and became a friend of Mrs Mallard as a result of Ms Morgan’s visits to the shop. For ease of expression, I refer to Futureside, Mr Amanatidis and Ms Zelepos as “the Amanatidi”.
In about September 1993, Ms Morgan received a report from Dr Humble, who she saw at the arrangement of WorkCover. In about September 1993, Ms Morgan was a dinner guest at the home of Mr and Mrs Mallard. There was a discussion about Ms Morgan’s compensation claim. She expressed dissatisfaction with Dr Humble’s report. Ms Morgan later gave evidence that Mr Mallard told her that Dr Humble received a commission from WorkCover according to money saved.
On 12 October 1993, Mrs Mallard was working at Pelican Plaza when she claimed that she suffered an injury to her hand. She subsequently made a claim to the Amanatidi that she was entitled to workers compensation. Her employment with Futureside ceased shortly thereafter.
Between October 1993 and mid 1994, there were various discussions between Ms Morgan and Mrs Mallard concerning their respective workers compensation claims.
In or before April 1994, Mrs Mallard reported to the police that the Amanatidi had made threats to her of violence if she pursued a workers compensation claim. The police applied in the Magistrates Court for a restraining order.
In or before April 1994, the Fraud Prevention Department commenced an investigation into Mrs Mallard’s employment by Futureside. The investigation in due course encompassed whether Futureside had been registered as an employer with and been paying premiums to WorkCover, whether the Amanatidi had made threats to Mrs Mallard to dissuade her from pursuing a workers compensation claim and whether the Amantidi attempted to induce her to waive a benefit under the Workers Compensation Act.
In mid 1994, the relationship between Ms Morgan and Mrs Mallard broke down and then became acrimonious.
On 28 July, 8 August and 6 September 1994, Mr Thompson wrote to Ms Morgan formally requiring her under section 110(1)(g) of the Workers Compensation Act to attend an interview to answer questions in relation to Mrs Mallard’s claim for compensation.
On 12 September 1994, Ms Morgan wrote to the Chief Investigator of the Fraud Prevention Department. She said that she did not wish to discuss any matters regarding Mrs Mallard with Mr Thompson because, inter alia, Mrs Mallard was aware of Mr Thompson’s investigations regarding Mrs Mallard’s former employer. She said:
What guarantee have I got that my interview will not be discussed with Mallard or her husband, and they can change their stories accordingly?
Presumably Ms Magtengard, as manager of the Fraud Prevention Department, received Ms Morgan’s letter and assigned Mr Basey in lieu of Mr Thompson to respond to the letter and interview her.
On 27 September 1994, Mr Basey replied to Ms Morgan’s letter. He invited her to contact him to arrange an interview concerning evidence which she may have concerning Mrs Mallard’s compensation claim and circumstances of employment. Before that invitation, he said:
Any statement you provide will not be discussed with any other witnesses in the matter or any person external to the Fraud Prevention Department of the WorkCover Corporation except the solicitor adjudicating the evidence.
On 4 October 1994, Ms Morgan wrote to her WorkCover case manager, Mr Mohamet, referring to an issue whether Dr Humble received commissions in connection with reports provided to WorkCover. The letter was not tendered at trial. On 27 October 2004, Mr Mohamet’s supervisor at WorkCover, Mr Daniel, wrote to Ms Morgan saying that WorkCover did not pay commission to any doctor.
On 1 November 1994, Ms Morgan wrote the Letter to Mr Owens as chief executive officer of WorkCover, The content of the Letter is of critical importance and is set out in full at [76] below. In summary, Ms Morgan said:
1.Mr Mallard had told her, and Mr Mohamet’s supervisor had denied, that Dr Humble received a commission from WorkCover according to money saved by his reports given on workers’ injuries. Ms Morgan did not know what the true position was but, if that was the case, it was unfair for WorkCover to take his report into consideration in relation to her compensation claim;
2.Mrs Mallard had told her that, if WorkCover did not pay for an overseas holiday and a TV security system, she would not give evidence for WorkCover in another matter regarding Mrs Mallard’s compensation claim [proceedings against the Amanatidi];
3. Mrs Mallard had told Ms Morgan, in the context of her requirement for an overseas holiday and a TV security system in return for her giving evidence, that Mr Mallard had a very influential position at WorkCover;
4.Mrs Mallard had worked cash in hand [at Pelican Plaza];
5.Mrs Mallard had used the car which Mr Mallard leased from WorkCover.
Ms Morgan compared the rejection of her own claim for compensation for clothes and massages with Mrs Mallard’s claim for an overseas holiday and a TV security system.
Upon receiving the Letter, Mr Owens called Mr Mallard into his office. He showed Mr Mallard the Letter and asked for his written response. Mr Mallard took with him a photocopy of the Letter.
On 3 November 1994, Mr Mallard wrote to Mr Owens. He denied having told Ms Morgan that Dr Humble received commissions from WorkCover. He said that WorkCover had paid for a TV security system but not an overseas holiday. He said that Mrs Mallard had reported her employer to the Australian Taxation Office and declared all her earnings. He said that Mrs Mallard was entitled to use the vehicle under WorkCover’s salary sacrifice arrangements. He did not otherwise address the allegations. He said that he regarded Ms Morgan’s letter as libellous and sought Mr Owens’ opinion.
After he called Mr Mallard into his office, Mr Owens called Mr Thomson into his office and gave him a copy of the Letter. On the next day, Mr Owens called Ms Magtengard into his office and gave her a copy of the Letter and of Mr Mallard’s letter dated 3 November 1994.
On 11 November 1994, Mr Thompson sent a memorandum to Mr Owens concerning the Letter. He said that WorkCover had paid for a TV security system but not a holiday for Mrs Mallard. He said that he could not comment on the other allegations contained in Ms Morgan’s letter. He expressed his view that the correspondence did not warrant further response from Mr Owens.
On 15 November 1994, Mr Basey interviewed Ms Morgan in relation to the investigation into the conduct of the Amanatidi. In the course of her answers to questions, Ms Morgan referred to Mr Mallard’s statement that Dr Humble received a commission from WorkCover. WorkCover prepared a typed record of the interview (“the Record of Interview”).
On 19 January 1995, solicitors for Mr and Mrs Mallard wrote to Mr Thompson stating that false allegations had been made by Ms Morgan in the Letter. They requested a copy of the Record of Interview.
On 30 January 1995, the Mallards’ solicitors wrote to Ms Morgan alleging that the Letter was defamatory and demanding a withdrawal, an apology and costs.
On 13 February 1995, Mr Thompson wrote to the Mallards’ solicitors declining to provide the information sought in the absence of Ms Morgan’s consent. The Mallards’ solicitors then made a Freedom of Information Act request for any written complaint by Ms Morgan and any response.
In or before March 1995, WorkCover briefed a barrister, Mr Amey, to prosecute the Amanatidi. WorkCover provided him with the Record of Interview but apparently did not inform him of Mr Basey’s undertaking not to disclose it or of Mr Thompson’s correspondence with the Mallards’ solicitors in which he had declined to provide the Record of Interview to the Mallards. On 3 March 1995, Mr Amey wrote to the Fraud Prevention Department saying that he proposed to provide Mrs Mallard with a copy of the Record of Interview. He later provided a copy to her.
On 28 April 1995, a WorkCover officer wrote to the Mallards’ solicitors stating that the documents sought were exempt, inter alia, because they contained confidential material. On 1 June 1995, Mr Owens wrote to the Mallards’ solicitors in response to their application for a review of that determination. He confirmed that the material sought was exempt because, inter alia, disclosure of the complaint would found an action for breach of confidence and the information was provided on the understanding that it would be kept confidential.
In August 1995, the Mallards issued a claim in the Magistrates Court against Ms Morgan seeking damages of $30,000 for libel. Mr Mallard alleged that the Letter conveyed the following defamatory innuendos:
1.Mr Mallard falsely told Ms Morgan that Dr Humble was paid a commission by WorkCover as a result of monies saved from claims for compensation by persons examined by him and consequently was not a fit and proper person to be employed in a position of trust and responsibility by WorkCover;
2.Mr Mallard had used his position with WorkCover to ensure that Mrs Mallard’s claim for compensation was accepted.

Mrs Mallard alleged that the Letter conveyed the following defamatory innuendos:
1.Mrs Mallard had threatened to WorkCover that, if benefits were not paid to her, she would not give evidence in legal proceedings;
2.Mrs Mallard had sought the assistance and influence of Mr Mallard to secure acceptance of her claim for workers compensation payments;
3.Mrs Mallard had failed to declare her earnings in employment with the Amanatidi to the Australian Taxation Office;
4.Mrs Mallard had unlawfully used a motor vehicle the property of WorkCover;
5.Mrs Mallard was dishonest.
Ms Morgan retained solicitors who represented her throughout the action in the Magistrates Court. They retained counsel who appeared for her in due course at the trial.
On 12 September 1995, Ms Morgan wrote to Mr Owens complaining that he had provided the Letter to the Mallards and this had resulted in the threat of defamation proceedings. She reiterated the statements from the Letter concerning Dr Humble and Mrs Mallard being paid cash in hand. Shortly before trial, the Mallards amended their claim in the Magistates Court to include the letter dated 12 September 2005.
In June 1996, WorkCover made non‑party discovery in the Magistrates Court action. It made discovery of the Letter and the Record of Interview, but claimed privilege from production on the grounds, inter alia, of public interest immunity and under the Act.
In July 1996, the trial of the Mallards’ defamation action against Ms Morgan proceeded before Mr Hiskey SM. Evidence was given by Mr Mallard, Mrs Mallard and Ms Morgan. Mr Hiskey SM preferred Ms Morgan’s evidence over Mrs Mallard’s evidence concerning conversations between them. Mr Hiskey SM preferred Mr Mallard’s evidence over Ms Morgan’s evidence concerning conversations between them. Mr Hiskey SM made the following findings of fact concerning the conversations:
1.Mr Mallard did not say to Ms Morgan that Dr Humble received a commission from WorkCover;
2.Mrs Mallard did say to Ms Morgan not to expect any cooperation from WorkCover or the police if she had any problems because of her husband’s position at WorkCover;
3.Mrs Mallard did say to Ms Morgan that she would get one hundred percent cooperation from WorkCover because of her husband’s position at WorkCover;
4.Mrs Mallard did tell Ms Morgan of WorkCover’s investigations regarding Mrs Mallard’s employers and said that, if WorkCover did not pay for an overseas holiday for her or a TV security system, she would not give evidence for WorkCover against the Amanatadi;
5.Mrs Mallard did say to Ms Morgan that, if WorkCover did not meet her requests, she would not give evidence and her husband had an influential position at WorkCover;
6.Mrs Mallard did work upon a basis under which she was paid cash and tax was not taken out and Mrs Mallard did tell Ms Morgan this.
In relation to Mr Mallard’s claim, Mr Hiskey SM found that:
1.the Letter conveyed that Mr Mallard falsely told Ms Morgan that Dr Humble received a commission from WorkCover and Mr Mallard was not fit and proper to be employed by Workcover. Ms Morgan did not have available a defence of qualified privilege because her assertion was not based upon an honestly held belief because Mr Mallard had not made the statement to her concerning Dr Humble. He found that qualified privilege was negated by malice because Ms Morgan was not activated by a sense of obligation to inform WorkCover of a perceived irregularity but by extraneous reasons to do with the fall out between herself and Mrs Mallard. Ms Morgan did not have a defence under section 5 of the Act because she had no reasonable grounds for believing the statement which she made concerning Dr Humble was true. The letter dated 12 September 2005 relevantly conveyed the same imputation as the Letter;
2.the Letter did not convey that Mr Mallard had used his position with WorkCover to ensure that Mrs Mallard’s claim for compensation was accepted by WorkCover.
In relation to Mrs Mallard’s claim, Mr Hiskey SM found that:
1.the Letter did convey that Mrs Mallard had threatened that, if benefits were not paid to her, she would not give evidence in legal proceedings and she had sought the assistance and influence of Mr Mallard to secure acceptance of her claim for those benefits, but Ms Morgan honestly and reasonably believed that it was true, the defence of qualified privilege applied and the statement was not made maliciously;
2.the Letter did convey that Mrs Mallard had failed to declare her earnings from the Amanitidi, but it was true that Mrs Mallard worked on a basis under which she was paid cash and tax was not taken out, the defence of qualified privilege applied and the statement was not made maliciously;
3.the Letter did convey that Mrs Mallard had used a motor vehicle the property of WorkCover when not entitled to do so, which was not true because Mrs Mallard was entitled to use it, but Ms Morgan honestly and reasonably believed what she said, the defence of qualified privilege applied and the statement was not made maliciously;
4.the Letter did convey that Mrs Mallard was dishonest but the defence of qualified privilege applied and the statement was not made maliciously.
Mr Hiskey SM dismissed Mrs Mallard’s claim. He awarded damages to Mr Mallard of $10,000 in respect of the imputation referred to at [32] above. He ordered that Ms Morgan pay half of Mr Mallard’s costs which, in turn, were to be taxed at 70 percent of the Supreme Court scale.
In 1998, Ms Morgan issued an action in the District Court against WorkCover claiming damages for disclosure by WorkCover of the Letter to the Mallards. In due course, the statement of claim in that action and a statement of claim in a second action issued by Ms Morgan in 1999 were struck out and the actions were consequently dismissed due to grossly inadequate pleadings.
In July 2000, Ms Morgan issued her third action against WorkCover. In September 2001, a Judge of the District Court granted permission to Ms Morgan to amend her statement of claim. The Judge concluded that the pleading disclosed a reasonable cause of action for breach of statutory duty and breach of the equitable duty of confidence.
The reasoning of the trial Judge
The Judge identified Ms Morgan’s claim as being that the disclosure of the Letter and Record of Interview was in breach of, inter alia, the Act. He identified her causes of action as being, inter alia, breach of duty of confidence and breach of statutory duty.[1]
[1] [2012] SADC 63 at [1]. The trial Judge also addressed causes of action of breach of duty of care and breaches of the Workers Rehabilitation and Compensation Act 1986 (SA) and Freedom of Information Act 1991 (SA) but, as Ms Morgan does not pursue those claims on appeal, it is unnecessary to address the Judge’s reasoning in relation to them.
The Judge set out 23 non-contentious “core facts” relating to events between 1993 and 1995.
The Judge analysed Ms Morgan’s evidence. He focussed upon her motivation in writing the Letter:
[T]he accusations which she attributed to both Mr Mallard and the statements she made against Mrs Millard were clearly intended to damage each of those people. I completely reject the plaintiff’s evidence that these were public interest disclosures and that she was attempting to provoke an independent investigation through the CEO of WorkCover with out outside agency ...
I reject the plaintiff’s claim that she was motivated by the desire to make a public interest disclosure and provoke an independent investigation ... I have reached the conclusion that her evidence about her motivation for writing the Letter of 1 November 1994 represents a reconstruction of events rather than her actual state of mind at the time. Her reconstruction is designed to provide a basis for asserting that obligations of confidentiality should have been attached to that letter ...
I find that in making those statements on 15 November 1994 [in the WorkCover interview] the plaintiff continued to be motivated by a desire to damage Dr Humble, advance her workers compensation claim, and damage both Mr and Mrs Mallard. I am unable to accept that the plaintiff’s statements were in any way motivated by a public interest disclosure.[2]
[2] [2012] SADC 63 at [27], [30] and [31].
The Judge relied largely upon the findings he made concerning Ms Morgan’s motivation for writing the Letter to make eight “further factual findings” as follows:
1.That at the time of writing her unsolicited letter of 1 November 1994 the plaintiff’s motives were:
a. To benefit herself and her compensation claim by impuging the professional reputation of Dr Humble; and
b. To harm Mr and Mrs Mallard.
2.At the time of writing the letter of 1 November 1994, the plaintiff was not motivated by any genuine sense of public interest or any desire to make a “public interest disclosure”.
3.At the time of writing the letter of 1 November 1994, the plaintiff did not act pursuant to any belief, understanding or expectation that it would be protected by any right of confidentiality arising under the Workers Compensation and Rehabilitation Act, the Whistleblowers Protection Act or the Freedom of Information Act.
4.That the original letter of 1 November 1994 was sent by registered mail to Mr Lew Owens, CEO of WorkCover and did not contain the words at the heading “Private and Confidential”.
5.In her interview with investigators on 15 November 1994, following the relevant questioning, the plaintiff volunteered a repeat of the allegations concerning Dr Humble and Mr and Mrs Mallard. The statements were not extracted under compulsion in the interview process and did not arise in any circumstances attracting an obligation of confidentiality.
6.The defendant, through its CEO, Mr Owens, provided a copy of the Letter of 1 November 1994 to Mr Mallard, its employee and it did not breach any provision of the Whistleblowers Protection Act by doing so.
7.The defendant did not disclose any confidential information to Mr and Mrs Mallard pursuant to any FOI request and did not breach any provision of the Freedom of Information Act.
8.The provision of the transcript of 15 November 1994 to Mr and Mrs Mallard by Mr Amey in the course of conducting the prosecution case against Mrs Mallard’s employers, did not breach any requirement of confidentiality either arising under the Workers Rehabilitation and Compensation Act or otherwise.[3]
[3] Ibid at [48].
The Judge reached the following conclusion:
As a result of the specific factual findings I have made, I am not satisfied that the plaintiff has established any relationship of confidentiality connected with the said communications, nor has she established any breach of a duty of confidentiality. For these fundamental reasons the plaintiff’s action must fail.[4]
[4] Ibid at [49].
Having reached that conclusion, the Judge said that he needed only to refer to the Act briefly. After setting out section 9 of the Act, he said:
The immediate problem for the plaintiff in establishing a breach under this Act is found within the reasons for judgment of Mr Hiskey SM. The learned Magistrate found that Mr Mallard had not made the statements attributed to him by the plaintiff. He found that the statements by the plaintiff in the November letter were false and were made maliciously. In this trial the plaintiff denied having any reasonable grounds to believe the allegations against Dr Humble and therefore at best, she was making the allegations against Dr Humble recklessly. I do not need to determine whether the plaintiff forfeited the protection of the Act as provided in s 10(2). It is sufficient to determine that she has not established any breach of s 9 or any other actionable breach of any other provision of this Act.[5]
[5] Ibid at [60].
Finally, the Judge addressed Ms Morgan’s claim for damages. He identified the heads of damage claimed by Ms Morgan, including legal costs incurred by her in litigation with the Mallards, damages of $10,000 paid to Mr Mallard, costs incurred by her in subsequent litigation and consequential loss of income. The Judge concluded:
[T]he plaintiff seeks to recover in this action the damages and costs she was ordered to pay to Mr Mallard in those proceedings. She has not established any proper basis upon which those damages and costs are recoverable in this action. I reject that component of her claim for damages.
...
I have been left to conclude that the plaintiff has not established on the balance of probabilities any parts of her claim for damages.
The cause of the original order that the plaintiff pay damages and costs to Mr Mallard were her libellous statements. Since 2000 she has pursued this litigation in a vain attempt to pass the responsibility for that conduct onto the defendant. To the extent that she has suffered other expenses, losses or damage it has been because of her own choices. It has not been caused by any tortious conduct or failing on the part of the defendant.[6]
[6] Ibid at [63], [66] and [67].
The contentions on appeal
Ms Morgan was self‑represented on the appeal as she was throughout the action in the District Court.
Ms Morgan’s central complaints on appeal were that the Judge erred in finding that she was not protected by section 7 of the Act[7] and erred in finding that her knowledge of the Act was in any way relevant to her rights under the Act.[8] The following represented Ms Morgan’s contentions on appeal:
1.the Judge erred in proceeding upon the basis that Ms Morgan’s motivation in making the disclosure to WorkCover was determinative of the question whether there was an appropriate disclosure of public interest information within the meaning of subsections 4(1) and 5(2);
2.on the evidence before him, the Judge erred in not finding that Ms Morgan made an appropriate disclosure of public interest information within the meaning of subsection 5(2) and that Mr Owens and WorkCover breached subsection 7(1) by disclosing her identity to the Mallards;
3.the Judge’s reasoning leading to his dismissal of the action was vitiated by these errors.
[7] Ground of appeal 2a.
[8] Ground of appeal 2b.
On the hearing of the appeal, it became apparent that, before the question whether the Judge erred in not finding that Ms Morgan made an appropriate disclosure of public interest information could be determined, an anterior question needed to be answered: whether the Judge made findings of fact and determined issues which were required to be made and determined as intermediate steps towards deciding the ultimate issues and whether the Judge gave reasons for such findings and determinations. As a result of an inquiry by the Court, as observed above Ms Morgan applied for permission to amend her grounds of appeal to put the following contentions in the alternative to her primary contentions:
1.the Judge made no findings whether the matters disclosed by Ms Morgan in the Letter comprised public interest information within the meaning of the Act or whether she believed on reasonable grounds that they were true or that they may be true and were of sufficient significance to justify disclosure for investigation within the meaning of subsection 5(2) of the Act;
2.the Judge made no findings whether it was necessary for Mr Owens to divulge the Letter or Ms Morgan’s identity to the Mallards to ensure that the matters to which the information related were properly investigated within the meaning of subsection 7(1);
3.the matter should be remitted to the District Court for a new trial.
WorkCover contended that the Judge made an implicit finding on the evidence before him that Ms Morgan did not believe on reasonable grounds that the matters disclosed in the Letter were true or may be true and were of sufficient significance to justify disclosure for investigation. WorkCover contended that it followed that there was no appropriate disclosure of public interest information within the meaning of subsection 5(2) and therefore subsection 7(1) of the Act.
WorkCover contended that in any event the exception to subsection 7(1) applied because it was necessary for Mr Owens to divulge to the Mallards the identity of Ms Morgan to ensure that the matters to which the information related were properly investigated.
WorkCover contended that Ms Morgan did not establish that any breach caused her loss or damage.
WorkCover made an alternative contention, although WorkCover conceded that it had not been relied upon by the Judge, that it was an abuse of process for Ms Morgan to contend that she did have a relevant belief within the meaning of subsection 5(2) because that was inconsistent with the findings of Mr Hiskey SM in the Mallards’ defamation action and involved relitigation of that issue against WorkCover.
The Whistleblowers Protection Act
Section 3 provides that the object of the Act is to facilitate the disclosure of illegal and improper conduct by providing means by which such disclosures may be made and appropriate protections for those who make such disclosures.
The Act confers immunity from civil or criminal liability upon any person who makes an appropriate disclosure of public interest information. Section 4(1) defines public interest information to mean:
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.
and maladministration to include:
impropriety or negligence.
Section 5 at material times relevantly provided:
(1)A person who makes an appropriate disclosure of public interest information incurs no civil or criminal liability by doing so.
(2)A person makes an appropriate disclosure of public interest information for the purposes of this Act if, and only if—
(a)     the person—
(i)    believes on reasonable grounds that the information is true; or
(ii)is not in a position to form a belief on reasonable grounds about the truth of the information but believes on reasonable grounds that the information may be true and is of sufficient significance to justify its disclosure so that its truth may be investigated; and
(b)     the disclosure is made to a person to whom it is, in the circumstances of the case, reasonable and appropriate to make the disclosure.
(3)A disclosure is taken to have been made to a person to whom it is, in the circumstances of the case, reasonable and appropriate to make the disclosure if it is made to an appropriate authority (but this is not intended to suggest that an appropriate authority is the only person to whom a disclosure of public interest information may be reasonably and appropriately made).
(4)For the purposes of subsection (3), a disclosure of public interest information is made to an appropriate authority if it is made to a Minister of the Crown or—
...
(h)     where the information relates to a matter falling within the sphere of responsibility of an instrumentality, agency, department or administrative unit of government—to a responsible officer of that instrumentality, agency, department or administrative unit
...
Section 7 creates an obligation on the person to whom an appropriate disclosure of public interest information is made to maintain confidentiality in respect of the identity of the informant, subject to an exception so far as necessary to ensure that the matters are properly investigated. Section 7 provides:
(1)A person to whom another makes an appropriate disclosure of public interest information must not, without the consent of that person, divulge the identity of that other person except so far as may be necessary to ensure that the matters to which the information relates are properly investigated.
(2)The obligation to maintain confidentiality imposed by this section applies despite any other statutory provision, or a common law rule, to the contrary.

Section 9 defines an act of victimisation and provides that it may be dealt with either as a tort or as an act of victimisation under the Equal Opportunity Act 1984 (SA). Section 9 relevantly provides:
(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.
(2)     An act of victimisation under this Act may be dealt with—
(a)     as a tort; or
(b)     as if it were an act of victimisation under the Equal Opportunity Act 1984 ,
but, if the victim commences proceedings in a court seeking a remedy in tort, he or she cannot subsequently lodge a complaint under the Equal Opportunity Act 1984 and, conversely, if the victim lodges a complaint under that Act, he or she cannot subsequently commence proceedings in a court seeking a remedy in tort.
...
(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 of reprisal.
Section 10 makes it an offence to disclose false public interest information knowing it is false or being reckless as to its being false. Section 10 provides:
(1)A person who makes a disclosure of false public interest information knowing it to be false or being reckless about whether it is false is guilty of an offence.
(2)A person who makes a disclosure of public interest information in contravention of this section is not protected by this Act.
(Penalty omitted)
Relevant causes of action
In his reasons for judgment, the Judge proceeded on the basis that Ms Morgan was relying upon causes of action for breach of the equitable duty of confidence and breach of statutory duty. The Judge proceeded on the basis that those causes of action were available if Ms Morgan could demonstrate a breach of the Act and that the breach caused loss and damage. The Judge did not hold that either cause of action was not available if those two matters were established.
The elements of the equitable cause of action for breach of confidence are:
1.information confidential in character is imparted by the plaintiff to the defendant;
2.the information is imparted in circumstances importing an obligation of confidence;
3.there is an unauthorised disclosure or use of that information.[9]
[9] Australian Medic-Care Company Ltd v Hamilton Pharmaceutical Pty Ltd [2009] FCA 1220; (2009) 261 ALR 501 at [632] per Finn J.
If section 7 applied to the disclosure of information contained in the Letter (ie it was an appropriate disclosure of public interest information), the first and second elements of the cause of action were satisfied. If the exception in subsection 7(1) did not apply, the disclosure by Mr Owens was not authorised and the third element was satisfied.
Accordingly, an equitable cause of action was made out if Ms Morgan established that the disclosure was made in breach of section 7 and it caused loss or damage. Despite a suggestion by WorkCover on appeal that such a cause of action was not pleaded, it is clear from Ms Morgan’s statement of claim, from the Judge’s reference to the cause of action of breach of duty of confidence and from the history of the action referred to at [42] above that the cause of action of breach of the equitable duty of disclosure was available to Ms Morgan at trial if she could establish a breach of section 7 causing loss or damage.
The elements of the cause of action for breach of statutory duty are:
1.a statute imposes an obligation for the protection or benefit of a particular class of persons;
2.on its proper construction, the statute is intended to provide a ground of civil liability when breach of the obligation causes damage of a kind against which the statute was designed to afford protection;
3.the defendant breaches the statutory obligation;
4.the plaintiff falls within the relevant class of persons;
5.the breach causes loss to the plaintiff.[10]
[10] Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 424 per Brennan CJ, Dawson and Toohey JJ.
Section 7 imposes an obligation for the protection and benefit of a particular class of persons and hence the first element was satisfied. Subsection 7(2) refers explicitly to an obligation to maintain confidentiality imposed by the section. The Act does not create any offence where a person breaches the obligation imposed by the section. Section 7 manifests an intention to provide a ground of civil liability when breach of the obligation imposed by the section causes damage and hence the second element was satisfied.
WorkCover advanced an argument on appeal that section 9, which creates the offence of victimisation, discloses an intention to cover the field of conferring rights upon informants who make appropriate disclosures under the Act. That argument should be rejected. Section 9 applies to victimisation of informants because the informant has provided information. It addresses a subject matter which is secondary to and derivative from the primary rights conferred upon the informant of immunity under section 5 and confidentiality under section 7. It was necessary for section 9 to create a cause of action explicitly given the alternative remedies conferred by subsection 9(2) of suing in tort or complaining under the Equal Opportunity Act 1984 (SA). By contrast, section 7 explicitly creates a primary obligation of confidentiality. The two sections address different matters in different ways. There is nothing in section 9 which discloses an intention that only victimisation is protected by the Act.
The cause of action for breach of statutory duty was available to Ms Morgan if she could establish that the disclosure was made in breach of section 7 and it caused loss or damage.
Appropriate disclosure of public interest information
Before the Judge could make any finding whether WorkCover breached section 7, it was necessary for him to determine whether Ms Morgan made an appropriate disclosure of public interest information within the meaning of subsection 5(2) of the Act. This in turn required him to determine:
1.what matters capable of comprising public interest information were conveyed by the Letter?
2.did each such item fall within the definition of public interest information?
3. was the disclosure appropriate?
In his reasons for judgment, the Judge did not set out, identify the elements of, or make any reference to, section 5. Although the Judge set out in full the terms of the Letter, he did not analyse it to determine what matters capable of comprising public interest information were conveyed by it, he did not determine whether each matter tended to show that an adult person had been involved in an illegal or improper activity (etc) within the meaning of the definition of public interest information and he did not determine whether Ms Morgan believed on reasonable grounds either that the information was true or that the information may be true and was sufficiently significant to justify disclosure for investigation.
The question which the Judge did pose and answer was whether Ms Morgan’s motivation for making the disclosure was to act in the public interest or whether she was acting in self‑interest to benefit her compensation claim with an intention to cause harm to Dr Humble and the Mallards. Belief and motivation are quite different things. Section 5(2)(a) is directed solely to the existence of a relevant belief on the part of the person making disclosure: the motive for making disclosure is different to the existence of such belief. A person might believe on reasonable grounds that information is true under subparagraph (i) and yet be motivated by an intention to cause harm to the person about whom the disclosure is made. A person might believe on reasonable grounds that information is of sufficient significance to justify disclosure so as to permit investigation under subparagraph (ii) and yet be motivated by a desire to cause harm to the person about whom the information is disclosed.
The Judge regarded the question of motivation as the beginning and end of the issue whether there was a breach of section 7. The Judge posed and answered the wrong question and did not pose or answer the questions he was required to decide under subsection 5(2).
Relevant matters
If the Judge had proceeded to answer the questions set out at [71] above in sequence, the first step that he was required to take was to identify what matters capable of comprising public interest information were conveyed by the Letter.
It is convenient to set out at this point the full text of the Letter:
ANGELA MORGAN,
PO BOX 161
PORT ADELAIDE S.A. 5015
1^ST November, 1994
Workcover Corp,
100 Waymouth Street,
ADELAIDE S.A. 5000
ATTENTION; MR LEW OWENS
Dear Sir,
I wish to inform you that I was told by Rod Mallard of the Corp of Workcover, that Peter Humble got paid a commission from Workcover according to money saved by reports given on Workers’ injuries.
I feel it is very unfair to take his report into consideration regarding my claim for Workcover, if this is the case.
I have informed my Case Manager, Barry Mohamet who handed it over to his supervisor and denies that Peter Humble got paid a commission and that Workcover sends the majority of workers to Peter Humble.
How will I ever know the truth. Since I said this to Barry Mohamet, my request for reimbursement for clothes and masseus has been rejected, yet Mallard’s wife told me if Workcover did not pay for an overseas holiday for her as she was stressed out or did not pay for a TV Security system, she would not give evidence for Workcover in another matter regarding Mallard’s compensation claim. If Workcover did not meet her request she told me she was not going to give evidence and her husband had a very influential position at Workcover.
Why can’t I be reimbursed for money I spent on clothes to ease my back pain.
It would be nice to know that she got reimbursement, especially when she worked cash in hand and used the car her husband leases from Workcover.
A reply would be greatly appreciated.
Thanking you in anticipation.
WITHOUT PREJUDICE.
Yours faithfully,
[signed]
A.M. MORGAN
The matters conveyed by the Letter which arguably comprised public interest information within the meaning of the Act and the stated sources of each item of such information were:
1.WorkCover paid commission to Dr Humble according to monies saved as a result of his reports (source: Mr Mallard);
2.Mrs Mallard required WorkCover to pay for an overseas holiday and a TV security system in return for giving evidence in another matter regarding her compensation claim (source: Mrs Mallard);
3.Mrs Mallard was using Mr Mallard’s influential position at WorkCover in her dealings with WorkCover over benefits sought by her (source: Mrs Mallard);
4.Mrs Mallard was paid wages cash in hand without her employer accounting for imposts such as tax or WorkCover levies in respect of wages (source: Mrs Mallard).
While Mr Hiskey SM had found that there was an innuendo in the Letter that Mr Mallard falsely told Ms Morgan that Dr Humble received commissions and hence was a liar unfit to work at WorkCover, that innuendo is incapable of comprising public interest information within the meaning of the Act and can be put aside for the present purposes.
The Judge did not identify the matters in the Letter which arguably conveyed public interest information.
Public interest information
The second step which the Judge was required to take was to determine whether each of the four matters in fact comprised public interest information.
If each of the matters extracted from the Letter and summarised at [77] above were in fact true, they comprised public interest information within the meaning of the Act.
1.If Dr Humble were receiving commissions from WorkCover, it would potentially be an irregular and unauthorised use of public money and maladministration by the WorkCover officer making the payments.
2.If Mrs Mallard were attempting to obtain an overseas holiday and a TV security system from WorkCover by threatening not to co-operate in WorkCover’s investigation and prosecution of the Amanatidi, it would potentially be an illegal activity of attempting to obtain a benefit by dishonest means under subsection 120(1) of the Workers Compensation Act , hindering an authorised officer in the exercise of a power conferred by section 110(9) and refusing or failing without lawful excuse to comply with a requirement to answer questions under section 110(1)(g) of the Workers Compensation Act and an irregular and unauthorised use of public money.
3If Mrs Mallard were relying upon her husband’s influential position at WorkCover in her dealings with WorkCover, her conduct potentially comprised an illegal activity in contravention of subsection 120(1) of the Workers Compensation Act (attempting to obtain a benefit by dishonest means).
4.If Mrs Mallard had been paid by the Amantidi without accounting for tax or WorkCover levies, it potentially comprised an illegal activity by them, namely employing a worker without being registered with WorkCover in contravention of sections 59(1) of the Workers Compensation Act (as well as the contravention of section 221C of the Income Tax Assessment Act 1936 (Cth)).
The Judge did not advert in his reasons for judgment to the matters conveyed by the Letter, other than the matter concerning Dr Humble, and did not address the question whether matters referred to in the Letter comprised public interest information.
Appropriate disclosure
The third step which the Judge was required to take was to determine whether Ms Morgan had the requisite belief stipulated by section 5(2)(a) for the disclosure to be an appropriate disclosure in respect of each of the matters.
The Judge made no explicit finding in relation to the first matter, namely Ms Morgan’s belief about Dr Humble’s receipt of commissions from WorkCover. On the face of the Letter and in her evidence, Ms Morgan said that she did not have an affirmative belief that Dr Humble was receiving a commission and hence subparagraph (i) of section 5(2)(a) had no application. In relation to subparagraph (ii), WorkCover contends that it is implicit that the Judge made a finding that Ms Morgan did not believe that this may be true and a further finding that Ms Morgan did not believe that the information was of sufficient significance to justify disclosure for investigation. WorkCover points to the explicit findings which the Judge made that Ms Morgan was not motivated by any genuine sense of public interest or desire to make a public interest disclosure and that she was motivated instead to benefit herself and her compensation claim by impugning Dr Humble’s reputation and also to harm the Mallards.[11]
[11] See [45] and [46] above.
WorkCover’s contention should be rejected for several reasons. There is a manifest difference between motivation and belief. The Judge made no finding of his own as to whether a conversation took place with Mr Mallard about Dr Humble receiving commissions in accordance with Ms Morgan’s evidence on oath before him. Mr Mallard was not called as a witness at the District Court trial before the Judge. While this did not preclude the Judge making a finding rejecting Ms Morgan’s evidence about the conversation, it was incumbent on him to make an explicit finding on that question and give reasons for doing so. Finally, the Judge did not address whether Ms Morgan had the requisite belief in respect of the other three matters and appears to have considered that it was unnecessary to do so.
In relation to the second matter, Ms Morgan gave evidence that Mrs Mallard told her that she required WorkCover to pay for an overseas holiday and TV security system in return for giving evidence for WorkCover in WorkCover’s proceedings against Mrs Mallard’s former employers. Ms Morgan’s evidence in this respect was not challenged in cross‑examination or contradicted by any witnesses called by WorkCover. There was no reason for the Judge to reject Ms Morgan’s evidence in relation to those conversations and he did not do so. If the conversations occurred in accordance with her evidence, it is a natural inference that Ms Morgan believed the information to be true.
In relation to the third matter, Ms Morgan gave evidence that Mrs Mallard told her, in the context of her seeking from WorkCover payment for an overseas holiday and TV security system in return for giving evidence, that her husband had a very influential position at WorkCover. Again, Ms Morgan’s evidence was not challenged in cross‑examination or contradicted by any witnesses called by WorkCover. If the conversation occurred in accordance with her evidence, it is a natural inference that it gave rise to a belief by Ms Morgan that it may be true that Mrs Mallard had used her husband’s influential position at WorkCover in her dealings with WorkCover in seeking payment for an overseas holiday and TV security system. It is also a natural inference in that event that Mrs Morgan believed that the information was of sufficient significance to justify disclosure for investigation.
In relation to the fourth matter, Ms Morgan gave evidence before Mr Hiskey SM that Mrs Mallard told her that she had been paid cash in hand and the transcript of that evidence was tendered in evidence before the Judge. All of the evidence before the Judge indicated that Mrs Mallard was in fact paid wages in cash without deduction or payment by her former employer of tax or WorkCover levies. If the conversation occurred in accordance with her evidence, it is a natural inference that it gave rise to a belief by Ms Morgan that the information was true.
Conclusion
The Judge failed to make findings of fact on the crucial primary and secondary issues going to the question whether Ms Morgan made an appropriate disclosure of public interest information within the meaning of section 5(2) of the Act. The Judge asked and answered the wrong question and did not ask or answer the necessary questions.
Exception in section 7(1)
The obligation imposed by section 7 to maintain confidentiality is subject to an exception:
except so far as may be necessary to ensure that the matters to which the information relates are properly investigated.
The Judge did not set out or analyse the elements of section 7. He did not refer to the exception contained in subsection 7(1). He made no finding whether it was necessary for Mr Owens to disclose Ms Morgan’s identity to the Mallards to ensure that the matters to which the information related were properly investigated.
The Judge did make the following finding:
It was perfectly proper for him [Mr Owens] to provide a copy of the Letter to Mr Mallard for his written response. They were serious allegations made against a senior employee and that employment relationship gave rise to the need for disclosure.[12]
The Judge was there addressing whether the employment relationship gave rise to a need for disclosure and not the statutory test whether it was necessary to disclose Ms Morgan’s identity to ensure that the matters to which the information related were properly investigated. The very purpose of section 7 is to restrict the circumstances in which disclosure can be made of a protected communication when it would otherwise have been proper for the disclosure to be made. It follows that the Judge’s dismissal of the action cannot be sustained by any findings made by him on the application of the exception contained in subsection 7(1).
[12] [2012] SADC 63 at [42].
On appeal, WorkCover contends that the evidence before the Judge mandated a finding that it was necessary for Mr Owens to divulge Ms Morgan’s identity to Mr Mallard to ensure that the matters to which the information related were properly investigated.

Where a statute creates an obligation defining the elements giving rise to it, and then expresses an excuse, exculpation or justification depending upon new or additional facts, it will be construed such that the onus of proof lies upon the person seeking to rely upon the excuse, exculpation or justification. The principle was described by the High Court in Vines v Djordjevitch.[13]
When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words it may embody the principle which the legislature seeks to apply generally. On the other hand it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts. In the same way where conditions of general application giving rise to a right are laid down, additional facts of a special nature may be made a ground for defeating or excluding the right. For such a purpose the use of a proviso is natural. But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter.[14]
[13] (1955) 91 CLR 512.
[14] (1955) 91 CLR 512 at 527-520 per Dixon CJ, McTiernan, Webb, Fullager and Kitto JJ.
The question what is necessary to ensure proper investigation normally turns upon facts known exclusively to the person to whom the disclosure is made. The exception contained in subsection 7(1) operates by way of exculpation or justification for what is otherwise a breach of the obligation imposed by the subsection. The exception should be construed as a proviso such that the burden of proof lies upon the defendant.
On the evidence adduced at trial, there was no basis to conclude that it was necessary for Mr Owens to divulge to the Mallards the identity of Ms Morgan. On the contrary, it was both unnecessary and undesirable for Mr Owens to provide to the Mallards a copy of the Letter or divulge to them the identity of Ms Morgan if the matters in the Letter relating to the Mallards were to be investigated by WorkCover. This follows even if the onus of proof lay upon Ms Morgan.
The question whether the exception applies is to be determined objectively and not upon the subjective belief of the person to whom disclosure is made. However, the subjective belief of that person, and the reasons why that person held the subjective belief, are relevant and admissible in making the objective determination of necessity required by the section. I address in respect of each matter the evidence as to Mr Owens’ subjective belief before turning to the objective question of necessity.
In his evidence‑in‑chief, Mr Owens was not asked whether he believed that it was necessary to provide a copy of the Letter to Mr Mallard to ensure that the matters to which the Letter related were properly investigated. He did not give evidence that he held such a belief.
In relation to the first matter being the question whether Dr Humble was receiving commissions, Mr Owens gave evidence that WorkCover had extensive systems in place to ensure that such commissions were not paid. Mr Owens’ evidence was that it was not necessary to investigate that question. This was confirmed by the fact that, to his knowledge, there was no investigation by WorkCover into that question.
Turning to the objective question, it was not necessary to ensure a proper investigation of the question whether Dr Humble was being paid commissions to give the Letter to Mr Mallard or inform him of its existence or Ms Morgan’s identity. Whether Dr Humble was receiving commissions was a question of objective fact which, if it were to be investigated, would have been investigated by appropriate officers of WorkCover or externally to WorkCover examining the payments which had been made to Dr Humble by reference to documents already in WorkCover’s possession. Providing the Letter to Mr Mallard could not advance that investigation. Indeed it would be counter‑productive if, contrary to Mr Owens’ evidence, there were any basis to suspect that Mr Mallard was complicit in the making of improper payments. Any proper investigation would first assemble the objective facts and documents and only then carefully interview Mr Mallard on the basis of those facts and documents if the need arose. There was no need to inform Mr Mallard of the identity of Ms Morgan as the informant, much less to provide him with a copy of the Letter.
In relation to the second and third matters being the questions whether Mrs Mallard made her cooperation with WorkCover conditional upon being provided with an overseas trip and a TV security system, Mr Owens did not give evidence that he believed it was necessary to investigate that question or that to do so it was necessary to provide the Letter to the Mallards or disclose Ms Morgan’s identity. In fact, to the knowledge of Mr Owens, the allegation was not investigated by WorkCover.
Turning to the objective question, it was not necessary to ensure a proper investigation to give the Letter to Mr Mallard or inform him of its existence or Ms Morgan’s identity. If WorkCover had considered that the allegation should be investigated, enquiries would have been made of the WorkCover case manager dealing with Mrs Mallard’s claim and with the investigators from the Fraud Prevention Department who were dealing with the investigation or prosecution of the Amanatidi. The enquiries would not have been undertaken by Mr Thompson or anyone from the Fraud Prevention Department because, if the allegation were true, members of the Fraud Department were likely to be involved in the arrangements with Mrs Mallard and likely to be witnesses or respondents. Those enquiries may have led to a conclusion that no further investigation was required. Alternatively, if they had elicited prima facie proof, that would then have been used as the basis for interviewing Mrs Mallard. The same analysis applies in relation to the derivative question whether Mrs Mallard raised her husband’s influential position at WorkCover in her dealings with the relevant WorkCover employees. Objectively assessed, if the matter were to be properly investigated, the Letter would not have been provided to Mr Mallard as that would have potentially jeopardised the investigation by forewarning Mrs Mallard. There was no need to inform Mr or Mrs Mallard of Ms Morgan’s identity as the informant, much less to provide them with a copy of the Letter.
In relation to the question whether the Amanatidi were paying WorkCover levies or other imposts in respect of wages paid to Mrs Mallard, Mr Owens did not give evidence that he believed that this should be investigated by WorkCover or that, to do so properly, it was necessary to provide the Letter to the Mallards or disclose Ms Morgan’s identity.
Turning to the objective question, it was not necessary to ensure a proper investigation to give the Letter to Mr Mallard or inform him of its existence or of Ms Morgan’s identity. If the matter were to be investigated by WorkCover, it would have been investigated in the first instance by checking WorkCover’s own records to ascertain whether Futureside was registered or paying levies. Indeed, it appears that WorkCover was already by this time investigating that question and ascertained at some point that Futureside was not registered or paying levies. Only after such enquiries had been made would any proper investigation have involved interviewing Mrs Mallard. There was no need to inform Mr or Mrs Mallard of the identity of Ms Morgan as the informant, much less to provide them with a copy of the Letter.
Considered globally, Mr Owens gave the Letter to Mr Mallard before providing it to the Fraud Prevention Department. For the purpose of a proper investigation, the Letter would first have been provided to whoever was to undertake the investigation and it would have been a matter for that person’s judgment, in consultation with Mr Owens, as to what (if anything) should be disclosed to Mr or Mrs Mallard and when and how it should be disclosed. Even if it had been necessary to disclose the subject matter of one of the matters raised in the Letter to the Mallards, it was not necessary to disclose the subject matter of the other matters, nor provide the Letter to Mr Mallard nor disclose Ms Morgan’s identity.
It is clear on the evidence before the Judge that Mr Owens did not give the Letter to Mr Mallard for the purpose of investigation at all, but rather, as the Judge found purely because of the employment relationship between WorkCover and Mr Owens on the one hand and Mr Mallard on the other. That manifestly fell outside the scope of the circumstances giving rise to the proviso under subsection 7(1).
Causation of loss
The Judge concluded that Ms Morgan did not establish causation of loss for the reasons set out at [49] above.
As the Judge had already concluded that Ms Morgan did not establish any breach, if he were to make findings as to causation of loss, it was necessary for him first to identify the breach or breaches which he assumed before assessing whether such breaches caused loss. The Judge did not do so. The reasons which vitiate his conclusions on breach consequentially also vitiate his conclusions on causation of loss.
Legal costs as a recoverable head of loss
The evident purpose of section 7 imposing a confidentiality obligation on the recipient of protected information is to protect the informant against litigation by a person who is a subject of the public interest information as well as to protect the informant against reprisals or threats of reprisals. The most obvious cause of action likely to be relied upon in any action against an informant is defamation, but other causes of action might include malicious falsehood, deceit and conspiracy to cause harm. If such an action is brought against an informant, direct loss which is liable to be suffered by the informant includes unrecovered legal costs incurred in his or her defence.
Legal costs incurred by successful defendant
In considering causation, I assume that WorkCover breached section 7 of the Act because otherwise the issue of causation does not arise.
In cases in which the informant is successful in a defamation action, unrecovered legal costs incurred by the informant in defending himself or herself are a head of loss which, as a matter of common sense, is caused by the breach of section 7 where that breach has led to the institution of the action.
Ms Morgan successfully defended the action brought by Mrs Mallard in defamation because Mr Hiskey SM accepted Ms Morgan’s evidence in preference to Mrs Mallard’s evidence. The costs incurred by Ms Morgan with her solicitors and counsel in defending the action by Mrs Mallard, which were not recovered, were caused by the assumed breach by WorkCover of section 7. The costs incurred by Ms Morgan in the action as a whole were self‑evidently increased by the fact that Mrs Mallard, and not just Mr Mallard, was suing for defamation. On any view, if WorkCover breached section 7, Ms Morgan suffered a loss caused by that breach. The quantum of those costs needed to be assessed by the Judge. He should have quantified those costs and considered whether they could be attributed in whole or part to the breach.
Legal costs incurred by unsuccessful defendant
Where the informant is unsuccessful in a defamation action, complex issues of causation arise. The first question which must be answered is whether, but for disclosure by the recipient in breach of section 7, any defamatory proceedings would have been instituted and prosecuted against the informant. The answer to that question will depend upon the particular facts of the case. The second question which must be answered is whether as a matter of common sense the wrongful disclosure is a cause of the loss represented by the legal costs incurred by the informant in the defamation action. This will involve an assessment of the interplay between the circumstances of the wrongful disclosure and basis of the informant’s liablitiy in defamation. In some cases it may be seen that the liability in defamation is caused by the informant’s own wrongful act and that for that reason it cannot be said that the wrongful disclosure is not a cause of the legal costs incurred. In other cases, on the findings made in the wrongful disclosure action, there may be concurrent causes or the wrongful disclosure may be seen as the exclusive cause.
The mere fact that an informant is liable in defamation does not necessarily prevent a finding that disclosure in breach of section 7 was a cause of the legal costs incurred by the informant. One of the purposes of subsection 7(1) is to avoid the informant being exposed to the risk of erroneous findings of fact leading to a finding of liability in defamation at the instance of a person the subject of the information. A communication might divulge public interest information giving rise to an obligation on the recipient of confidentially under section 7 but may also incidentally contain words giving rise to a defamatory innuendo which is unintended and in respect of which, standing alone, no immunity is conferred by section 5. Where a communication concerns multiple matters, issues of causation can become particularly complex. The issue of causation will be crucially dependent upon the particular findings made by the court hearing the breach of confidentiality action.
The Judge did not make findings of fact which were necessary before any determination could be made whether the assumed breach by WorkCover of section 7 caused Ms Morgan to incur legal costs in defending Mr Mallard’s defamation action or the contribution she was required to make to Mr Mallard’s costs.
The analysis of causation depends on whether it is found that Ms Morgan made an appropriate disclosure of public interest information in respect of one or more of the four matters identified at [77] above. If it were found that this was so in respect of all four matters, the “but for” test would be satisfied because the Mallards would never have sued in defamation if WorkCover had not breached section 7. The question would then be whether, as a matter of common sense, WorkCover’s breach was a cause of Ms Morgan’s legal costs vis a vis Mr Mallard or whether Ms Morgan’s own conduct was the exclusive cause.
If it were found that Ms Morgan made an appropriate disclosure of public interest information in respect of all matters except about Dr Humble, the “but for” question would be whether Mr Mallard would have sued at all in the absence of the references in the Letter to Mrs Mallard. The question whether as a matter of common sense the wrongful disclosure by WorkCover was a cause of Ms Morgan’s legal costs vis a vis Mr Mallard would require a considered analysis of whether the role was played by any other causes.
The quantum of the costs incurred vis a vis Mr Mallard needed to be assessed by the Judge. He should have made a finding of the quantum of such costs and analysed their specific causation.
Appeal costs
Ms Morgan appealed to the Supreme Court against the judgment granted by Mr Hiskey SM in favour of Mr Mallard. Her appeal was unsuccessful. She claimed in this action her costs incurred in that appeal and Mr Mallard’s party/party costs which she was required to pay.
Whether the appeal costs were caused by WorkCover’s assumed breach depended in part on the question whether Ms Morgan’s costs at first instance in defending Mr Mallard’s defamation action were caused by the assumed breach of section 7. It depended also on the question whether it was reasonable for Ms Morgan to appeal given the credit findings made by Mr Hiskey SM. The quantum of those costs needed to be assessed by the Judge. He should have made a finding of the quantum of such costs and analysed their specific causation.
Subsequent actions
After the appeal, Ms Morgan instituted further proceedings against the Mallards, including an application in the Magistrates Court to set aside the judgment in favour of Mr Mallard, new actions in the District Court against each of Mr and Mrs Mallard and appeals from a decision by a Master in the District Court action against Mr Mallard. It is difficult to conceive how those costs could be recoverable from WorkCover as having been caused by WorkCover’s assumed breach of section 7. Be that as it may, the Judge made no finding or analysis concerning this head of loss.
Consequential losses
Ms Morgan also claimed consequential losses, including loss of wages since 1997. It is difficult to conceive how these could be recoverable losses caused by WorkCover’s assumed breach of section 7. Be that as it may, the Judge made no finding or analysis concerning this head of loss.
Abuse of process
On appeal, WorkCover makes an alternative contention that the Judge’s dismissal of the action should be upheld on a ground not decided by the Judge, namely that it was an abuse of process for Ms Morgan to contend against WorkCover what had already been found against her by Mr Hiskey SM, namely that he did not tell her that Dr Humble received commissions from WorkCover.
WorkCover’s contention as to abuse of process involves three cumulative propositions. The first proposition is that Mr Hiskey SM made a finding that Mr Mallard did not say to Ms Morgan that Dr Humble received a commission.
WorkCover’s second proposition is that, by bringing the action against WorkCover, Ms Morgan was re-litigating the same matter which had already been decided against her in the Mallard action. That proposition cannot be accepted at face value. The disclosure relating to Dr Humble was only one of several matters the subject of the Letter. The finding by Mr Hiskey SM about the conversation between Mr Mallard and Ms Morgan had no bearing upon the other three matters. Mr Hiskey SM generally made favourable findings for Ms Morgan against Mrs Mallard in relation to the conversations between them which formed the source for the other three subject matters of the Letter.
WorkCover’s third proposition is a proposition of law, namely that, subject to exceptional circumstances, it is prima facie an abuse of process for a litigant in a later action against an opponent to assert the truth of a fact which was found against the litigant in an earlier action against a different opponent and this is so even when the relevant fact is only one of several issues and not in itself determinative of the action. That proposition requires an analysis of the law as to abuse of process. Ultimately, it cannot be accepted.
Abuse of process: finality of litigation
The High Court has said of abuse of process in general that:
Although the categories of abuse of procedure remain open, abuses of process usually fall into one of three categories:
(1) the court’s procedures are invoked for an illegitimate purpose;
(2)the use of the court’s procedures is unjustifiably oppressive to one of the parties; or
(3)the use of the court’s procedures would bring the administration of justice into disrepute.[15]
[15] Rogers v The Queen (1994) 181 CLR 251 at 286 per McHugh J quoted with approval in Batistatos v Roads and Traffic Authority of (NSW) (2006) 226 CLR 256 at [15] per Gleeson CJ, Gummow, Hayne and Crennan JJ and in PNJ v The Queen [2009] HCA 6; (2009) 83 ALJR 384 at [3] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ.

One species of abuse of process relates to the finality of litigation. The general principle is that:
Proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.[16]
[16] Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ.
There have been several cases in which it has been held to be an abuse of process for a party in a subsequent matter to seek to re-litigate a case finally determined against that party in an earlier matter notwithstanding that the opposing party is different in the two matters. In those cases, the alleged abuse related to an attempt to re-litigate the case as opposed to a single issue. The opponent in the later matter brought an interlocutory application seeking a permanent stay, strike out or dismissal of the matter where the litigant was the plaintiff or strike out of the defence where the litigant was the defendant.
In Reichel v Magrath,[17] Reichel was the plaintiff in the first action and the defendant in the second action. In the first action, Reichel sued the Bishop of Oxford for a declaration that he was still the vicar of Sparsholt because an instrument of resignation by him was null and void. North J dismissed his action, holding that the resignation was valid. Reichel’s appeals to the Court of Appeal and House of Lords were dismissed.[18] In the second action, Reverend Magrath, who had been appointed by the Bishop as the new vicar, sued Reichel seeking a declaration that he was now the vicar and an injunction requiring Reichel to vacate. Reichel’s defence was struck out as being frivolous and vexatious. The House of Lords held that the defence was properly struck out. Lord Halsbury LC said:
… I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again. … If by the hypothesis he is not vicar of Sparsholt and his appeal absolutely fails, it surely must be in the jurisdiction of the Court of Justice to prevent the defeated litigant raising the very same question which the Court has decided in a separate action.[19]
and Lord Watson said:
… this is an attempt by the appellant to retain the temporalities of the benefice of Sparsholt by re-trying, with his successor in the benefice, the same issues which have already been conclusively decided against him in a question with his proper contradictor.[20]
[17] (1889) 14 App Cas 665.
[18] (1889) 14 App Cas 259.
[19] (1889) 14 App 665.
[20] Ibid at 668.
The decision in Reichel v Magrath involved special circumstances, namely both actions involved the status of Reichel as vicar of Sparsholt and a quasi‑proprietary claim rendering the actions not wholly in personam but partially in rem. Although technically Reverend Magrath was not a successor in title to the Bishop of Oxford, in a substantive sense he derived his title as vicar and right to the vicarage from the Church which was represented by the Bishop in the first action.[21] The circumstances gave rise to a very strong case of abuse of process. Although the principle identified in Reichel v Magrath is not confined to circumstances in which the subject matter of the action is an office or entitlement to property and in which the second opponent is in substance a successor in title to the first opponent, the special circumstances in that case need to be borne in mind when drawing from it a statement of principle.
[21] See the analysis by Lord Hoffmann in Arthur JS Hall & Co (a firm) v Simons [2002] 1 AC 615 at 701. Compare the analysis by Handley JA in Rippon v Chilcotin [2001] NSWCA 142; (2001) 53 NSWLR 198 at [16].
In Connelly v Director of Public Prosecutions,[22] an issue of autrefois acquit arose in a second set of criminal proceedings. Lord Pearce regarded abuse of process in criminal and civil cases as enabling the court to avoid injustice where, as a matter of form, doctrines of autrefois acquit, autrefois convict, res judicata and issue estoppel did not apply but, as matter of substance, re-litigation ought to be prevented on similar principles.[23]
[22] [1964] AC 1254.
[23] Ibid at 1361-1362.
In Hunter v Chief Constable of the West Midlands Police and Ors[24], Hunter was defendant in the first matter and plaintiff in the second matter. Hunter was prosecuted for murder. On a voir dire, the trial Judge held that Hunter’s confession was voluntary because the prosecution had proved beyond reasonable doubt that he had not been assaulted by police before his confession. After being found guilty of murder, Hunter sued the government (the police and the Home Office) in the High Court for damages for assault. He alleged the same assault as he had alleged in support of his unsuccessful application to exclude the evidence of his confession in the criminal proceedings. The House of Lords held that it was an abuse of process for him to initiate a collateral attack on the decision in the criminal proceedings. Lord Diplock (Lords Russell, Keith, Roskill and Brandon agreeing) began by identifying two of the common criteria for finding abuse of process later identified by the High Court and referred to at [127] above. He said:
this is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which .... would ... be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right‑thinking people.[25]
Lord Diplock identifed the specific rationale for finding abuse of process in that case, which fell within the third category of common criteria for finding abuse of process identified by the High Court at [127] above. Lord Diplock said:
The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.
The proper method of attacking the decision by Bridge J in the murder trial that Hunter was not assaulted by the police before his oral confession was obtained would have been to make the contention that the judge's ruling that the confession was admissible had been erroneous a ground of his appeal against his conviction to the Criminal Division of the Court of Appeal. This Hunter did not do …
It would call for a degree of credulity too extreme to be expected even from judicial members of your Lordships' House to fail to recognise that the dominant purpose of this action, and the parallel actions brought by the other Birmingham Bombers so far as they are brought against the police, has not been to recover damages but is brought in an endeavour to establish, long after the event when memories have faded and witnesses other than the Birmingham Bombers themselves may be difficult to trace, that the confessions on the evidence on which they were convicted were induced by police violence, with a view to putting pressure on the Home Secretary to release them from the life sentences that they are otherwise likely to continue to serve for many years to come.[26]
[24] [1982] AC 529.
[25] Ibid at 536.
[26] Ibid at 54 .
Although the House of Lords referred to general abuse of process principles, the decision itself turned upon the specific finding that Hunter’s purpose in instituting the civil proceeding was to mount a collateral attack upon the criminal conviction in the previous proceeding.
In South Australia Housing Trust v State Government Insurance Commission,[27] the Housing Trust was the defendant in the first action and plaintiff in the second action. This Court found no abuse of process on the facts. King CJ (Cox and Millhouse JJ agreeing) referred to abuse of process principles, referring specifically to Reichel v Magrath and Hunter v Chief Constable of the West Midlands Police. He then said:
The cases referred to above in which the inherent power of the Court to prevent an abuse of its process was used to preclude a party from re-litigating matters previously decided against him, were all obvious cases in which it was sought to misuse legal procedures in an unacceptable way.[28]
The Court did not attempt to define more specifically the circumstances in which re-litigation of matters previously decided constitutes an abuse.
[27] (1989) 51 SASR 1.
[28] Ibid at 536.
In Walton v Gardiner,[29] the New South Wales Court of Appeal had permanently stayed successive proceedings in the Medical Tribunal for misconduct due to prolonged delay. Mason CJ, Deane and Dawson JJ held that the jurisdiction to grant a permanent stay for abuse of process was not confined necessarily to unfairness or proceedings brought for an improper purpose. In the course of their reasons, they said:
Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings (See e.g., Reichel v Magrath (1889), 14 App. Cas. 665, at p. 668; Connelly v Director of Public Prosecutions, [1964] A.C. 1254, at pp. 1361-1362). . The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police ([1982] AC 529, at p 536) as "the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people".[30]
While they referred to Reichel v Magrath and Connelly v Director of Public Prosecutions, they did not identify more specifically the circumstances in which it will be vexatious and oppressive to seek to litigate anew a case already disposed of by earlier proceedings.
[29] (1993) 177 CLR 378.
[30] Ibid at 392.
In Walpole v Partridge & Wilson,[31] Walpole was defendant in the first matter and plaintiff in the second matter. Walpole was convicted before Justices of the Peace of obstructing a veterinary officer in the execution of his duty. The Crown Court dismissed his appeal. He then retained solicitors to advise him on the merits of an appeal from the decision of the Crown Court. He later sued the solicitors for damages for negligence. The Court of Appeal held that the civil action against the solicitors was not an abuse of process. Ralph Gibson LJ (Beldam and Peter Gibson LJJ agreeing) said:
I accept Mr. Norris's submission that the plaintiff's claim upon the material before this court is not shown to be manifestly unfair to the defendants, nor is it shown that, to allow it to proceed, would bring the administration of justice into disrepute among right thinking people. The contrary, as Mr. Norris submitted, is, in my view, demonstrated on both heads. Upon the assumption that the facts alleged are true, and upon the concession that the point of law put forward is arguable, it would be manifestly unfair to the plaintiff to deny him the right of having his case tried on the merits and it would, I think, bring the administration of justice into disrepute if the court denied him that right.[32]
[31] [1994] QB 106.
[32] Ibid at 119.
In State Bank of New South Wales Ltd v Alexander Stenhouse Ltd,[33] State Bank was the defendant in the first action and plaintiff in the second action. Giles CJ rejected a contention by State Bank’s insurers that it was an abuse of process for State Bank to defend successfully a claim in negligence against it by Swiss Bank and then claim under its insurance policy for loss due to its negligence. In relation to general principles, Giles CJ said:
[33] (1997) Aust Torts Reports 81-423.
One category of case where abuse of process may exist is where a party seeks to relitigate an issue already decided. Principles of res judicata and issue estoppel will preclude relitigation of an issue between the same parties. These principles can be seen as founded on the same considerations as those informing the jurisdiction to stay proceedings for abuse of process, see Rodgers v The Queen at 265, 274. But there may be abuse of process warranting a stay where a party seeks to relitigate an issue decided between himself and a third party.
…
It is apparent from this brief review of the decisions that whether proceedings are, or an aspect of proceedings is, an abuse of process because a party seeks to relitigate a issue already decided depends very much on the particular circumstances. The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice, and amongst the matters to which regard may be had are –
(a)     the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue;
(b)     the opportunity available and taken to fully litigate the issue:
(c)     the terms and finality of the finding as to the issue;
(d)     the identity between the relevant issues in the two proceedings;
(e)     any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; all part of–
(f)     the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and
(g)     any overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.[34]
[34] Ibid at 64,086 and 64,089.
In Rippon v Chilcotin Pty Ltd,[35] the Chilcotin group was plaintiff in both actions. Purchasers of a business sued the vendor for misleading conduct by misrepresenting the profit of the business for the most recent financial year ended 30 June 1991 (the vendor having provided financial statements for the last four financial years). The trial Judge found that there was no reliance upon the financial statements and dismissed the cause of action for misleading conduct. The purchasers then sued the vendor’s accountants for misrepresentation by the same financial statements in the same respect. They also added a claim for misrepresentation in the financial statements for the three earlier years, but the Court of Appeal held that this was window dressing and ignored the claim in respect of those earlier years. The Court of Appeal held that it was an abuse of process for the purchasers to choose not to join the accountants in the original action against the vendor and then to bring a separate action against the accountants after losing on an essential ground, namely reliance, as against the vendor. Handley JA (Mason P and Heydon JA agreeing) said:
In those circumstances it could fairly have been said, in the language of the joint judgment in Port of Melbourne Authority v Anshun (602), that the claims against the accountants were so relevant to the subject matter of the first action that it was unreasonable for the purchasers not to rely upon them in that action. Compare Morris v Wentworth-Stanley [1999] QB 1004 (CA), 1011, 1017.
Counsel for the appellant did not contend for an Anshun estoppel, but the fact that the present claim could, and perhaps should, have been included in the Supreme Court proceedings, emphases the close connection between the two proceedings and is relevant in considering whether the present action is an abuse of process.
…
There is no question here of oppression and unfairness because the accountants were not parties to the earlier action, but these proceedings do threaten the integrity of the administration of justice and raise the prospect of conflicting judgments.[36]
It was an important aspect of the Court of Appeal’s reasoning that it was unreasonable for the purchasers not to claim against both the vendor and the accountants in the original action.
[35] (2001) NSWCA 142; (2001) 53 NSWLR 198.
[36] Ibid at [22]-[24] and [36].
In Arthur J S Hall & Co v Simons,[37] the House of Lords considered advocates’ immunity. The issue of abuse of process did not arise directly but was considered by their Lordships in the course of their reasons for judgment. In so doing, they clarified the principle established in Hunter v Chief Constable of the West Midlands Police. Lord Browne-Wilkinson said:
[37] [2002] 1 AC 615.
Hunter v Chief Constable of the West Midlands Police establishes that the court can strike out as an abuse of process the second action in which the plaintiff seeks to re-litigate issues decided against him in earlier proceedings if such re-litigation would be manifestly unfair to the defendant or would bring the administration of justice into disrepute.[38]
[38] Ibid at 685.
(Citation omitted)
Lord Hoffmann (Lords Hutton and Millett agreeing) said:
… the courts have a power to strike out attempts to relitigate issues between different parties as an abuse of the process of the court. But the power is used only in cases in which justice and public policy demand it. … I agree with the principles upon which Lord Diplock said that the power should be exercised: in cases in which relitigation of an issue previously decided would be "manifestly unfair" to a party or would bring the administration of justice into disrepute.[39]
Lord Hope said:
The Hunter principle, if it is applied too widely to deny the client a remedy in damages, seems to me to be vulnerable to attack on the ground that it is inconsistent with the client's fundamental right of access to a court for the determination of his civil rights.[40]
and Lord Hobhouse said:
The "collateral attack" point is a species (or "sub-set") of abuse of process. There is no general rule preventing a party inviting a court to arrive at a decision inconsistent with that arrived at in another case.
...
A party is not in general bound by a previous decision unless he has been a party or privy to it or has been expressly or implicitly covered by some order for the marshalling of litigation.[41]
(Citations omitted)
[39] Ibid at 702-703.
[40] Ibid at 723.
[41] Ibid at 743.
In D’Orta Ekenaike v Victorian Legal Aid,[42] the High Court disagreed with the House of Lords’ decision that advocates’ immunity should no longer be recognised at common law and affirmed the continuation of the immunity in Australia. While the High Court touched upon abuse of process,[43] the High Court did not hold that the House of Lords took too narrow a view of the scope of abuse of process in its application to re-litigation.
[42] [2005] HCA 12; (2005) 223 CLR 1.
[43] (2005) 223 CLR 1 at [74]-[83] per Gleeson CJ, Gummow, Hayne and Heydon JJ and [184] and [191] per McHugh J.
In Secretary of State for Trade and Industry v Bairstow,[44] Bairstow was plaintiff in the first action and defendant in the second action. Bairstow sued Queen’s Moat House plc for damages for wrongful dismissal. Nelson J dismissed the action, finding that Bairstow had been guilty of grave misconduct justifying his dismissal. Later, the Secretary of State instituted proceedings seeking an order that Bairstow be disqualified from acting as a director. The Court of Appeal held that it was not an abuse of process for Bairstow to dispute that he had been guilty of grave misconduct as found by Nelson J. Sir Andrew Morritt VC (Potter and Hale LJJ agreeing) said:
If the parties to the later civil proceedings were not parties to or privies of those who were parties to the earlier proceedings then it will only be an abuse of the process of the court to challenge the factual findings and conclusions of the judge or jury in the earlier action if (i) it would be manifestly unfair to a party to the later proceedings that the same issues should be relitigated or (ii) to permit such relitigation would bring the administration of justice into disrepute.[45]
[44] [2003] EWCA Civ 321; [2004] Ch 1.
[45] Ibid at 17.

In Spalla v St George Motor Finance Ltd (No 6),[46] the Spalla group was the plaintiff in both actions. Mr Spalla conducted the Essendon Mitsubishi dealership through retail and wholesale companies. They were financed by companies in the St George group. Upon disputes arising, the St George companies appointed receivers to the businesses. Proceedings in the Federal Court by Mr Spalla and his companies against the St George companies and the receivers were heard by Finkelstein J, who decided the disputes mainly in favour of St George. Mr Spalla and his companies then instituted fresh proceedings in the Federal Court against the St George companies and the receivers making claims which were inconsistent with the decision of Finkelstein J. French J struck out those claims which were inconsistent with Finkelstein J’s decision in reliance upon abuse of process principles.[47]
[46] Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699.
[47] Ibid at [59]-[78] and [95]-[101].
In Habib v Radio 2UE Sydney Pty Ltd,[48] Mr Habib was plaintiff in both actions. He sued the publisher of the Daily Telegraph for defamation in relation to an article originally published by the Daily Telegraph and then republished by three radio stations via broadcasts. The jury rejected his case based on the article itself and he ultimately consented to judgment against him in respect of the re-publications. In the meantime, he had instituted proceedings for defamation against the owners of the three radio stations as original publishers. While the talk back hosts on the three radio stations had reproduced the article, they had also added significant embellishments of their own. The Court of Appeal held that it was not an abuse of process for Mr Habib to sue the radio stations and re-litigate issues determined in the original action. McColl JA (Giles and Campbell JJA agreeing) surveyed the principal authorities.[49] She observed that the imputations pleaded in the new action replicated the two original imputations upon which Mr Habib had lost in the original action.[50] However, Mr Habib was not seeking to raise in the new proceedings “the very same question” which had been decided in the original action and an outcome favourable to him would not lead to the existence of contradictory judgments.[51]
[48] [2009] NSWCA 231.
[49] Ibid at [88]-[100].
[50] Ibid at [191].
[51] Ibid at [199].
The following can be drawn from the authorities.
1.In the cases in which it was concluded that there was an abuse of process:
(a)    in Spalla v St George Motor Finance Ltd (No 6),[52] the Spalla group were plaintiffs in both actions and sued the same defendants making essentially the same complaints such that, as a matter of substance but not form, res judicata and issue estoppel principles would have applied;
[52] [2004] FCA 1699.
(b)    in Rippon v Chilcotin Pty Ltd,[53] the Chilcotin group were plaintiffs in both actions and sued different defendants making essentially the same complaints such that, as a matter of substance but not form, Anshun estoppel principles[54] would have applied;
[53] (2001) 53 NSWLR 198.
[54] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
(c)    in Reichel v Magrath,[55] Reichel was plaintiff in the first action and defendant in the second and, as a matter of substance but not form, the second opponent was successor in title to the first opponent and the subject matter of the action transcended in personam rights;
[55] (1889) 14 App Cas 665.
(d)    in Hunter v Chief Constable of the West Midlands Police & Ors,[56] Hunter was defendant in the first proceedings and plaintiff in the second and his purpose in bringing the second action was to mount a collateral attack upon the decision in the first proceedings;
[56] [1982] AC 529.
(e)    in each case, the opponent in the second action made an interlocutory application to stay, strike out or dismiss the claim or defence of the party found to be acting in abuse of process;
(f)     in each case, the abuse involved the re-litigation in the second action of the decision in the original proceedings and not merely of one of several issues.
2.Where res judicata and issue estoppel do not apply because of the form of the respective proceedings, an action may nonetheless be an abuse of process because the principles which give rise to them apply as a matter of substance.[57]
3.Where the purpose of the second proceedings is to mount a collateral attack on the decision in the first proceedings, there will be a basis for finding abuse of process.[58]
4.Where it was unreasonable for the plaintiff not to join both claims in the first action, there will be a basis for finding abuse of process.[59]
5.The mere fact that the person against whom the abuse is alleged was a party in both proceedings and seeks to litigate an issue decided in the earlier proceedings is not sufficient to give rise to abuse of process. Something more is required.[60]
6.Normally, in order to establish abuse of process by re-litigation, it is necessary to establish that:
(a)    the purpose of the subsequent proceedings is to mount a collateral attack on the decision in the earlier proceedings;
(b)    it would manifestly unfair to the opponent in the later proceedings that the issues decided in the earlier proceedings be re-litigated; or
(c)    permitting re-litigation would bring the administration of justice into disrepute.[61]
7.The mere fact that the party against whom the abuse is alleged seeks to re-litigate an issue decided against that party in earlier litigation is not sufficient to bring the administration of justice into dispute.[62]
[57] Reichel v Magrath (1889) 14 App Cas 665; Connelly v DPP [1964] AC 1254.
[58] Hunter v Chief Constable of the West Midlands Police [1982] AC 529.
[59] Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198; Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699.
[60] South Australian Housing Trust v State Government Insurance Commission (1989) 51 SASR 1; State Bank of New South Wales Ltd v Stenhouse (1991) Aust Torts Reports 81-423; Walpole v Partidge and Wilson [1994] QB 106; Arthur J S Hall & Co v Simons [2002] 1 AC 615; Secretary of State for Trade and Industry v Bairstow [2004] Ch 1; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231.
[61] Arthur JS Hall & Co v Simons [2002] 1 AC 615; Secretary of State for Trade and Industry v Bairstow [2004] Ch 1.
[62] Arthur J S Hall & Co v Simons [2002] 1 AC 615; Secretary of State for Trade and Industry v Bairstow [2004] Ch 1; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231.
Analysis
By paragraph 8 of its defence, WorkCover pleaded that Ms Morgan’s plea that, by the Letter, she made an appropriate disclosure of public interest information within the meaning of the Act was designed to attack collaterally the findings and orders made in the Mallard defamation action. An earlier version of paragraph 8 had pleaded that Ms Morgan’s plea that she made an appropriate disclosure of public interest information should be struck out as an abuse of process of the Court, but that sentence was removed from the final defence.
As a matter of procedure, if WorkCover wished to contend that it was an abuse of process for Ms Morgan to maintain the action, it should have brought an application to stay proceedings or strike out the action as an abuse of process. This was the procedure adopted in the authorities relied upon by WorkCover. It was not appropriate for WorkCover simply to treat abuse of process as a substantive defence to be agitated at trial.
If procedural issues were the only obstacle, they would not be decisive. However, they are symptomatic of more fundamental obstacles to acceptance of WorkCover’s propositions. In the authorities relied upon by WorkCover, the alleged abuse of process involved the action as a whole. The abuse did not involve one only of several strands of the first action and one only of several strands of the second action. In the present case, WorkCover accepts that it cannot contend that it was an abuse of process for Ms Morgan to bring the action against WorkCover insofar as she relied upon an appropriate disclosure of public information in respect of the second to fourth matters referred to at [77] above. WorkCover does not seek to rely on the findings by Mr Hiskey SM on Mr Mallard’s second complaint referred to at [32] above or any of Mrs Mallard’s complaints referred to at [33] above, in respect of which Mr Hiskey SM made findings in favour of Ms Morgan. The alleged abuse of process is confined to Mr Mallard’s first complaint referred to at [32] above involving monies paid to Dr Humble.
There would be formidable difficulties in the way of seeking to apply abuse of process by re-litigation to one issue out of several issues arising in each actions. For example, in the present case, it would not ordinarily be an abuse of process for WorkCover to contest factual findings made by Mr Hiskey SM in favour of Ms Morgan in the earlier action to which it was not a party. However, if WorkCover were entitled to contend that Ms Morgan cannot contest Mr Hiskey SM’s finding about the conversation between Mr Mallard and Ms Morgan, it would be inequitable for WorkCover to pick and choose favourable findings and ignore adverse findings. In addition, it would be impossible to say that an action is an abuse of process when only one of several issues had been decided in earlier proceedings against a different opponent. In the context of successive litigation between the same parties or their privies, the doctrine of issue estoppel operates symmetrically and fairly. There are good reasons why that doctrine is confined in its application to the same parties or their privies. WorkCover’s attempt to stretch the doctrine to apply at the instance of a stranger to the original litigation unsurprisingly produces anomalies.
More fundamentally still, neither principle nor authority supports the proposition advanced by WorkCover that prima facie it is an abuse of process for a plaintiff against a second opponent to contest a finding of fact made in an earlier matter against a first opponent.
As a matter of principle, the doctrines of res judicata and issue estoppel are confined to actions between the same parties or their privies. The underlying rationale for those doctrines does not support an extension of them to apply against strangers to the original action on a prima facie basis subject only to exceptional circumstances.
The usual requirements to establish abuse of process by re-litigation are summarised at [145] above.
There is no basis for a finding to be made that Ms Morgan’s purpose in bringing the proceedings against WorkCover was to mount a collateral attack on Mr Hiskey SM’s decision against Mr Mallard. The manifest purpose of the action against WorkCover was to seek recompense for the loss caused by WorkCover’s breach of its confidentiality obligations which led to the earlier action in the first place.
WorkCover does not contend that it would be manifestly unfair to it that the issues decided in the earlier proceedings be re-litigated.
It cannot be said that permitting re-litigation would bring the administration of justice into disrepute. On the contrary, it would be to deny a remedy to Ms Morgan in circumstances in which, ex hypothesi, she is entitled to recompense by WorkCover of the legal costs which she incurred in the Mallard litigation which were caused by WorkCover’s (assumed) breach of section 7 of the Act.
WorkCover’s alternative abuse of process contention should be rejected.
Other matters
In her statement of claim and during the trial in the District Court, Ms Morgan alleged that WorkCover wrongfully disclosed the Record of Interview in the same way as she alleged that it wrongfully disclosed the Letter. In her notice of appeal, Ms Morgan complained of the Judge’s rejection of her case in respect of the Record of Interview in the same manner as she complained in respect of the Letter. However, neither Ms Morgan nor WorkCover devoted any real attention on the hearing of the appeal to the Record of Interview.
Although Mr Mallard alleged in the Magistrates Court action that Ms Morgan’s statements in the Record of Interview were defamatory of him, the Record of Interview was not received into evidence in the trial in the Magistrates Court and Mr Hiskey SM did not substantively address it in his reasons for judgment.
In accordance with the manner in which the appeal was argued, the disposition of the appeal does not turn on any aspect of the Record of Interview. The appeal should be allowed in any event by reference to the Letter.
For the sake of completeness, I observe that the issue whether the statement made by Ms Morgan concerning Dr Humble during the interview was an appropriate disclosure of public interest information turns upon the same considerations as the disclosure in similar terms concerning the first matter the subject of the Letter. The exception in subsection 7(1) did not apply to justify disclosure of the Record of Interview to Mrs Mallard because it was not necessary to disclose the Record of Interview to her to ensure that the matters to which the information related were properly investigated.
Issues of causation of loss would arise in relation to the disclosure of the Record of Interview given that the relevant part of the Record of Interview related to the same matter which had already been disclosed in the Letter which had already been provided by Mr Owens to Mr Mallard in November 1994. The relevance of the Record of Interview will be a matter for the parties to address upon remission of the action to the District Court for a fresh trial.
As observed above, Ms Morgan wrote a second letter to Mr Owens in September 1995 in which she repeated the statements about Dr Humble and Mrs Mallard being paid cash in hand. On appeal, neither party devoted any real attention to the 1995 letter. By the time Ms Morgan wrote the second letter, the Mallards had already instituted the proceedings in the Magistrates Court. It does not appear that the second letter had any effect upon the actions of the Mallards or the result in the Magistrates Court. It can be put to one side.
Conclusion
Permission should be granted to Ms Morgan to amend her grounds of appeal to raise the adequacy of the Judge’s reasons. The appeal should be allowed. The judgment of the Judge should be set aside. The action should be remitted to the District Court for a fresh trial.

[2013] SASCFC 139

19 December 2013

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Administrative Law

Legal Concepts

Appeal

Statutory Construction

Procedural Fairness

Judicial Review

Remedies

Duty of Care