Morgan v WorkCover Corporation (No 2) - [2016] SADC 42

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MORGAN v WORKCOVER CORPORATION (No 2)
[2016] SADC 42
Ruling of His Honour Judge Stretton
19 April 2016
ESTOPPEL - ESTOPPEL BY JUDGMENT - ISSUE ESTOPPEL - GENERAL PRINCIPLES
The plaintiff’s claim for damages on account of breach of statutory duty and breach of equitable duty of confidence was dismissed at trial, per Morgan v WorkCover [2012] SADC 63. That decision was overturned on appeal and remitted for a new trial, per Morgan v WorkCover [2013] SASCFC 139. The plaintiff contends that the Full Court in determining the appeal determined certain relevant factual issues. The plaintiff sought orders that the defendant is consequently estopped from disputing certain matters upon the retrial.
HELD:
1. The ordinary rule is that where a judgment is overturned and remitted for a fresh trial, all disputed factual matters may be addressed at the retrial.
2. Whether an estoppel exists depends upon whether on careful analysis the Full Court has definitively determined a factual issue for the purposes of the retrial.
3. All the Full Court’s pronouncements of law are binding on the retrial just as all subordinate courts must in any event respect and apply the Full Court’s interpretation of the law.
4. Certain matters are now agreed.
5. Of the remaining disputed matters, while the Full Court’s analysis of the evidence generally conveys a firm preference for the plaintiff’s position, the majority of the disputed factual issues are left open to be addressed at the retrial. The Full Court did however definitively determine that if the matters contained within the plaintiff’s letter were either true or the plaintiff had the relevant belief, then they amounted to “Public Interest Information” justifying the plaintiff’s disclosure of them to the defendant pursuant to the Whistleblowers’ Protection Act.
6. The relevance of certain further issues the subject of argument are more appropriately dealt with by the trial judge.
Whistleblowers Protection Act 1993 (SA), referred to.
Morgan v WorkCover Corporation [2013] SASCFC 139, applied.
Morgan v WorkCover [2012] SADC 63; Gray v Dalgety & Co Ltd (1916) 21 CLR 509; Ewing International LP v Ausbulk Ltd (No 2) [2009] SASC 381, considered.

MORGAN v WORKCOVER CORPORATION (No 2)
[2016] SADC 42

This is an application by the plaintiff Angela Mary Morgan for a ruling that the defendant WorkCover Corporation is estopped from contesting several factual issues pled in her amended statement of claim.
The plaintiff claims that those factual issues have been determined by a Full Court judgment in this matter, Morgan v WorkCover Corporation[1] (‘the Full Court judgment’).
[1] [2013] SASCFC 139.
The Full Court judgment overturned an earlier District Court judgment in this matter which had dismissed the plaintiff’s claim. The matter was remitted to the District Court for retrial.
The Full Court, in overturning the earlier District Court judgment, said a number of things concerning the facts of the matter.
The plaintiff contends that these things amount to findings of fact by the Full Court which the defendant is now estopped from contesting, and which accordingly need not be the subject of evidence or further proof at trial.
A very brief history
A detailed history of the matter is set out at [8] to [42] of the Full Court judgment, which I adopt but for brevity do not repeat here.
In short, in 1991 the plaintiff claimed she suffered work injuries and pursued compensation from WorkCover. On 1 November 1994 the plaintiff sent a letter to WorkCover which she claims amounted to an appropriate disclosure of public interest information pursuant to the Whistleblowers Protection Act 1993 (SA) (‘the Act’). The letter included assertions concerning a WorkCover employee Mr Mallard and his wife Mrs Mallard (‘the Mallards’).
In the course of investigating claims against Mrs Mallard’s employer, on 15 November 1994 WorkCover interviewed the plaintiff. Some assertions were repeated.
WorkCover disclosed the letter to Mr Mallard, and disclosed the interview to Mrs Mallard.
In August 1995 the Mallards both sued the plaintiff for libel based on the contents of the letter and interview. In 1996 Mr Mallard secured judgment against the plaintiff for $10,000 plus half of his costs. Mrs Mallard’s claim was dismissed.
The plaintiff sued the defendant for disclosing the letter to Mr Mallard, claiming breach of statutory duty and breach of the equitable duty of confidence. She claimed loss and damages arising from the defendant’s claimed breach of duty.
The plaintiff was unrepresented. The matter took a long time to come to trial, and the eventual trial took place over 23 part-days of hearing.
The plaintiff’s claim was eventually dismissed, see Morgan v WorkCover.[2]
[2] [2012] SADC 63.
The plaintiff, still unrepresented, appealed. The Full Court concluded that the trial judge had failed to make necessary findings of fact, failed to decide necessary issues and had made a number of legal errors. The judgment was set aside and the matter was remitted to the District Court for a new trial.
The issue
In the course of arriving at those conclusions, the Full Court discussed the evidence and made a number of observations and statements. The plaintiff contends that in respect of four matters the Full Court made findings which the defendant is now estopped from contesting upon the retrial. The defendant says the Full Court made no such factual findings.
The Full Court’s approach on appeal
To address that issue requires an examination of what the Full Court actually did.
Appeals of that nature are technically a full rehearing, and accordingly the Full Court was entitled, if it saw fit, to simply make and substitute its own factual findings and legal conclusions, and deliver the consequent judgment it thought the original trial court should have delivered.
On the other hand it was of course entitled to conclude that the trial miscarried and remit the matter for retrial. It will take that course when the factual issues cannot be easily or readily determined on appeal.
It could also determine certain matters and leave remaining issues to be determined upon retrial.
In the course of concluding that the trial judge failed to make necessary findings of fact and failed to address the correct legal issues, the Full Court articulated and considered the evidence that was called as to the crucial issues as to whether there had been an actionable breach of confidence or breach of statutory duty.
The crucial question is whether, in doing so, it made binding findings of fact as asserted by the plaintiff, or rather observed in passing what appeared to be established on the evidence before the judge, while leaving it open for the issue to be addressed anew upon any retrial.
It is trite law to observe that the fact that a trial judge fails to make necessary factual findings or address the relevant legal question, will not necessarily lead to judgment for the appellant or indeed even a retrial.
The appeal court will often, if it can, review the evidence itself to determine whether it can make the necessary factual findings such that with the correct application of legal principle to the relevant legal question it may simply deliver the right judgment and obviate the need for the cost and delay of a retrial.
That decision may however favour either party, not necessarily the appellant. In other words, if the appeal court feels able to determine the facts, and apply the correct legal question, the result might still favour the respondent such that the appeal is unsuccessful.
Having found factual and legal errors that justify vitiation of an original judgment dismissing a claim, if the appeal court is not in a position where it feels comfortable making the necessary factual findings to deliver judgment itself, it might still consider whether the evidence led was capable of supporting the plaintiff’s case. For if the evidence led was not on any analysis capable of supporting a judgment for the plaintiff, there would be no point in ordering a retrial, and the appeal might be dismissed on that basis.
It is therefore to be expected that an appeal court may consider, weigh and make observations as to what the trial evidence tended to show, so that it can be satisfied that were the right factual and legal issues to be addressed by the trial judge, there would still be a viable case that the appellant might win.
The issue is whether that is what the Full Court was doing here or whether, on the other hand, it was finally determining some of the contested issues yet ordering a retrial on the remaining issues.
The effect and scope of an order for a retrial and the degree to which such an order may foreclose issues from further litigation in a second trial was discussed by several members of the High Court in Gray v Dalgety & Co Ltd.[3]
Griffith CJ said:[4]
The appellant, however, further contends that the respondents are estopped from setting up this view of the law, because, they say, that question was definitely settled as between the parties by the language used by the learned Justices who formed the majority of this Court when giving reasons for granting a new trial, and who expressed the opinion that upon the evidence given at the first trial the jury would have been warranted in finding a contract which was neither void for uncertainty nor obnoxious to the Statute of Frauds. I am unable to find any support either in principle or authority for the contention. A decision of the Court upon some matter directly in controversy between the parties upon some definite point of fact or determination of right, no doubt, operates as an estoppel. And this may be so even as to an incidental matter arising in the course of the proceedings which requires immediate settlement. For, as pointed out by the Judicial Committee in the Indian case cited, such a decision is either appealable or not. If it is not appealable, it is final. If it is appealable and is not appealed from, it becomes final. But I never before heard it suggested that a grant of a new trial was a final decision upon any point except that the matter should be further investigated. No authority was cited, nor even a suggestion in a text-writer, that it has any such operation. The reasons of the Judges for granting a new trial may operate as a decision binding the Court in the conventional sense that a Court ought to follow its own decisions. In the present case a special Court has been constituted for the purpose of deciding, first, whether it is bound to follow the opinions of my brothers Isaacs and Powers, and, secondly, if it is not so bound, of reviewing them. It is not disputed that the Judicial Committee on appeal from this Court is not so bound, so that a refusal of this Court to reconsider the matter would merely leave it open.
…
So, in the present case, I can see no reason to think that an order for a new trial, on whatever ground or for whatever reason granted, can have the force and effect of a definitive adjudication upon a matter directly in controversy between the parties.
In truth, however, the question does not really arise, for the evidence given on the second trial was by no means identical with that given on the first.
[3] (1916) 21 CLR 509.
[4] As above, at pp 520-521.
Barton J said:[5]
On the question of estoppel, perhaps some further light may be obtained from the judgments of the Judicial Committee in the case of Williams v. Bishop of Salisbury and in Forbes v. Ameeroonissa Begum. I do not consider that the judgment of this Court upon the new trial motion in this case can be regarded as res judicata between the parties so as to estop the defendants on any of the points in the present appeal. I do not think that the grant of a new trial on that occasion amounted to anything more than a remitter of the case to the examination of a second jury.
[5] As above, at p529.
Higgins J said:[6]
But the defendant has also challenged the verdict and judgment on numerous grounds stated in the notice of appeal to the Supreme Court, and not referred to by the learned Judges. I apprehend that their Honors accepted as binding on them the opinions expressed by the majority of the High Court in granting a new trial. The decision in the High Court of three is not binding as law when challenged before the Full Bench of seven; but it is urged that it is binding by way of estoppel between the parties, as res judicata. For my part I am not convinced that there is any such estoppel—either as to facts or as to law. All that the High Court did was to order a new trial—deciding that the case ought not to have been withdrawn from the jury. There are four points discussed before the Bench of three Judges as to which, it is argued, the defendant is estopped. The first is that there was evidence fit for a jury of the agreement alleged by the plaintiff. But the evidence on the second trial cannot be said to be the same precisely as the evidence on the first trial; and it is technically open to the defendant to show that there was no evidence on the second trial fit for a jury. The second point is that the evidence did not conclusively show that there was exoneration. The answer to this argument is similar. Indeed, Mr. Mann admits that he does not argue that there was no evidence to go to a jury of the agreement alleged by the plaintiff. The other two points are points in which evidence had not to be considered—points of pure law: (1) that the agreement alleged was enforceable by the Courts; (2) that it was not obnoxious to the Statute. There seems to me to be more excuse for applying the doctrine of estoppel inter partes to these points. But what is the true effect of ordering a new trial, where the primary Judge has withdrawn the case from the jury? Is it not merely that the Court decides that the case ought not to have been withdrawn from the jury? All that is necessary for the decision is, on these points, that the claim of the plaintiff is not so clearly wrong in law that it ought not to be fully tried. However certain the learned Judges who formed the majority may have been as to the law on these matters, I think that the remarks in their judgments should be regarded rather as reasons for ordering a new trial, as statements relevant to the issues of law, but not as findings of issues of law. (See Langmead v. Maple Willes J.) Otherwise the defendant would, practically, be precluded from curing a mistake on these vital points even by getting special leave to appeal to the Privy Council. If it asked for leave to appeal after the order for a new trial, it would almost certainly be told to wait for the result of the new trial (Rocke, Tompsitt & Co. v. Wilson); whereas if it asked for leave to appeal after the new trial, it would, according to the doctrine now propounded, be estopped as to these points. As at present advised, I propose to deal with the grounds of appeal on their merits on the assumption that the defendant Company is not estopped.
[6] As above, at pp551-552.
Powers J added:[7]
The appellant, Gray, contended that the respondent, Dalgety & Co. Ltd., is estopped from setting up the question whether the contract found by the jury was a binding contract or not, because, it is alleged, that question was definitely decided and settled as between the parties by the majority of the Justices of this Court when they granted a new trial and gave reasons for granting a new trial. I concur in the views expressed by the learned Chief Justice and my brother Higgins in their judgments that the only final decision arrived at was that there should be a new trial. As one of the majority of the Court who granted the new trial I certainly only intended to decide that there should be a new trial. In delivering judgment I said:—“We, in this Court, also disagree as to what agreement the jury might, on the evidence, reasonably find most favourable to the plaintiff; and do not agree, as to that, with the learned Judges of the Supreme Court. What the agreement between the parties really was is evidently very doubtful. In my opinion what the verbal agreement between the parties was is a question for the jury, and, when the jury decide that, the Court can then decide whether on that agreement the plaintiff can recover if he proves a breach of it.”
The jury on the new trial, on different evidence, did not expressly find either that Dalgety & Co. agreed to find a lender who would advance the money on reasonable terms, or on terms agreed to by the parties; but found that “the contract between Gray and Dalgety & Co. Ltd. was that Dalgety & Co. Ltd. absolutely promised for valuable consideration that they (Dalgety & Co. Ltd.) would procure and introduce to Gray some person or persons corporation or corporations able and willing to lend Gray £84,000 upon the security of Kentucky Station in two sums, namely £72,000 on first mortgage at 4 per cent. and £12,000 on second mortgage at 5 per cent. within a reasonable time.” The respondent is not, in my opinion, estopped from setting up the question whether the contract found by the jury on the second trial on different evidence was a binding contract or not by any views expressed by the majority of the Court when granting the new trial, and in any case the only final decision arrived at was to grant a new trial.
[7] As above, at pp554-555.
I draw from these opinions the following broad principles.
1.That where a trial judgment is set aside on appeal and there is an unqualified order for a new trial then, prima facie, all factual issues remain open to be addressed afresh at the new trial.
2.Where a judgment is upheld as to some issues and a retrial is ordered on others, then the retrial must be conducted accordingly. An obvious example of this might be where say, for example, on an appeal from a judgment as to liability and quantum of damages the decision as to liability is upheld but the decision as to quantum of damages is overturned, and so a retrial limited to the issue of the quantum of damages is ordered.
3.Similarly, if the appeal court specifically orders that an issue is established for the purposes of a retrial, the trial court must conduct the retrial in accordance with that order.
4.All or any expressions of legal principle comprising the ratio of the judgment, being pronouncements of the appellate court, will be binding upon the retrial in the same way that every subordinate court trial must be conducted in accordance with and apply the law as articulated from time to time by the Supreme Court.
5.Where an appeal court expresses views about the effect of evidence given at the first trial concerning an issue, that will not necessarily bind a further trial as to that issue, because at the second trial more or different evidence may be adduced as to that issue.
6.Where the appeal court remits for retrial without qualification, but in reaching that conclusion expresses views about the effect of evidence, and the evidence is replicated exactly at the retrial, then the issue is less clear.
7.Where the appeal court’s factual view is expressed definitively and where it is not dependent on any possible trial variables, such as, for example, in the isolated interpretation of a document or its legal effect, then the argument is strongest that such view be regarded as binding.
8.Where the appeal court’s expressed view concerns inferences arising from oral evidence or a quantity of circumstantial evidence, the picture is immediately less clear that there could ever be an estoppel. Fundamentally, evidence of that type is unlikely to be replicated absolutely exactly at the retrial, and the smallest change might legitimately require that a different conclusion be reached. Further, new evidence may be discovered that puts the issue opined upon by the appeal court in a whole new light or perspective. To jump too quickly to regard factual issues upon which the appeal court has made comment as determined for the purposes of a new trial may prevent new and perhaps definitive evidence being adduced at the new trial, and risks injustice.
9.The discussion highlights the importance of approaching the issue of whether appeal court pronouncements as to the effect of evidence at a first trial indeed create an estoppel concerning the issues at a second trial conservatively and with great care.
10.I draw from all of this that unless the formal orders of the appeal court limit the legal or factual scope of a retrial, or the text of the appeal judgment unequivocally determines legal or issues for the purposes of a retrial, then this court should not rule ahead of such retrial that a party is estopped from addressing those issues.
The matters subject to a claim of estoppel
1.Whether the defendant needed to disclose the letter or record of interview to Mr Mallard in order to investigate the allegations

The Full Court made its own assessment of the evidence given at the trial. It said that there was no objective need to disclose the letter to Mr Mallard, concluding at [106] that:
106.It is clear on all 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).
The defendant has agreed that the Full Court judgment determines the issue in respect of the ‘Humble allegations’ and the possible defence under s 7(1) of the Whistleblowers Protection Act. The ‘Humble allegations’ were the only basis upon which the plaintiff was held liable to the Mallards. While the defendant responds that the Full Court judgment ‘does not otherwise determine it in respect of Mrs Mallard or the plaintiff’s equitable claim’, the defendant has effectively conceded that the Full Court has determined its breach of statutory duty concerning this issue.
Regarding the record of interview; the Full Court expresses no definitive view as to whether its release to the Mallards was justified in the different circumstances surrounding that document’s release (the prosecution of a related party in a matter where Mrs Mallard was a witness), although the judgment identifies that the defendant specifically told the plaintiff, in writing, that it would not be disclosed to them, but then did so. In a formal sense, the issue of the interview however appears left open. The Full Court judgment says that it was the letter rather than the interview that was the subject of the defamation claim and hence the plaintiff’s costs and loss, so the interview may possibly only have tangential relevance at trial.
2.Whether the defendant was obliged as employer to put to Mr Mallard the allegations which had been made against him
The passages of the Full Court judgment upon which the plaintiff relies include [106] set out above wherein the Full Court regards it as clear on the evidence that the letter was given to Mr Mallard solely upon the basis of his employment relationship with the defendant, and [96] where the Full Court finds that course unjustified:
96.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.
Each of these findings is importantly qualified with the words ‘on the evidence adduced at trial’. Read as a whole, the judgment does not, I find, seek to quarantine the parties from addressing this issue at any further trial. Whilst one might opine from the Full Court’s factual analysis that given the same or similar evidence there must be a significant likelihood that a new trial court would reach the same conclusions, in my view the point of foreclosure has not been reached.
3.Whether the allegations in the interview were made to the defendant in circumstances importing an obligation of confidence
The plaintiff claims that the actions of the defendant give rise to an estoppel by convention, estopping the defendant from denying that the record of interview was given in circumstances importing an obligation of confidence. Estoppel by convention will arise where both parties act on the basis of an agreed or assumed state of facts, whether that assumption is shared by both or whether it is initially made by one and acquiesced in by the other, and it would then be unjust to allow a party to go back on the assumption.[8]
[8] Ewing International LP v Ausbulk Ltd (No 2) [2009] SASC 381.
In paragraph 11 of the defendant’s defence it admits that the defendant wrote to the plaintiff in the context of requesting the interview stating:
11.1….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.
Whilst the defendant has accordingly seemingly admitted that it expressly told the plaintiff that any interview she gave would be kept confidential in the terms expressed in the admitted letter, it has not admitted that the interview was given in circumstances importing an obligation of confidence. Whilst at first blush that might provisionally appear to follow as surely as night follows day, the Full Court made no finding concerning it, and it is not possible to definitively predict what evidence may be called as to the issue on a retrial.
The defendant argues[9] that the fact that the interview was required for the supplementary purpose of prosecuting a third party might override the confidentiality undertaking the defendant gave to secure it, ‘remains to be argued’. Whilst the argument, at least as developed to date, appears to have little merit, I note that it is at least an argument that the defendant wants to maintain at the new trial. In the final analysis, in the absence of the full evidential picture available at trial, I would not be prepared to hold, at this stage, that an estoppel by convention has been established.
[9] Defendant’s outline of submissions for the hearing of 17 March 2016, as amended, paras 43.3 and 42.4.
However, on the material available at this stage, the plaintiff has a strong trial argument that the interview was given in circumstances importing an obligation of confidence, as the defendant seems to have told the plaintiff so, in writing, in order to obtain the interview.
4.Whether the information conveyed to the defendant was ‘Public Interest Information’ for the purposes of ss 5 and 7 of the Whistleblowers’ Protection Act 1993 (SA)
One of the many questions that the Full Court held that the trial judge was required to address but failed to address was the question of whether the four matters contained in the letter which ‘arguably contained public interest information within the meaning of the Whistleblowers’ Act’, in fact comprised public interest information.[10]
[10] [2013] SASCFC 139 at [77]-[79].
The Full Court went on to address the issue itself:[11]
[11] As above, at [80], [81].
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.
It must first be observed that the Full Court’s views were expressed in the course of arriving at a conclusion that the trial judge failed to address and determine a fundamental issue, that of whether the letter contained public interest information. In a strict sense, that was the conclusion.
However, along the way the Full Court has analysed a discrete document, and pronounced without qualification that, if true, the matters comprise public interest information within the meaning of the Act. That finding is not dependent on any other evidence, rather it is an unqualified conclusion based on the Full Court’s analysis of an agreed document. This subordinate court must accordingly respect and follow that finding, and regard that issue as determined for the purposes of any retrial.
Another of the many questions that the Full Court found that the trial judge failed to address was whether the plaintiff had the requisite belief pursuant to the Act to justify her disclosing the information concerning each of those four matters to the defendant.
The Full Court went on to consider the evidence, opining that there was much to support variously either the truth of the matters or the requisite belief in them on the part of the plaintiff such as to justify her having made an appropriate disclosure of them pursuant to the Act. It said:[12]
83.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.
84.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.[13]
85.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.
86.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.
87.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 Ms Morgan believed that the information was of sufficient significance to justify disclosure for investigation.
88.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.
[12] As above, at [83]-[89].
[13] See [45] and [46] above.
Conclusion
89.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.
In the final analysis, whilst the Full Court expresses a strong case for the acceptance of the plaintiff’s position as to her belief and the consequent appropriateness of her disclosing the matters, it stops short of making any absolute findings. Accordingly, the truth of the four matters, or at least the issue of whether the plaintiff had the requisite belief in those matters, is left open to be addressed at any retrial.
In summary therefore, the Full Court has determined that if the matters are either true or the plaintiff had the requisite belief, then they amount to public interest information justifying disclosure, however the issue of their truth and the plaintiff’s belief in them may still be addressed at a further trial.
‘Other matters’
The plaintiff and the defendant have made further submissions as to what may or may not be relevant at trial, in light of the current pleadings and previously filed statements of contentions. Whilst the submissions address potentially relevant issues, in the final analysis, I do not regard it as appropriate to go beyond the issue of estoppel at this point.
I am not part heard in the matter, and will not necessarily be the trial judge, and issues of relevance and admissibility of evidence called in support of the present pleadings ought more appropriately be dealt with at trial by the trial judge.