Rogerson v City of Greater Dandenong
[2022] VSC 612
•14 October 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S ECI 2022 01723
BETWEEN:
| SANDRA KIM ROGERSON | Plaintiff |
| v | |
| CITY OF GREATER DANDENONG | Defendant |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 September 2022 |
DATE OF JUDGMENT: | 14 October 2022 |
CASE MAY BE CITED AS: | Rogerson v City of Greater Dandenong |
MEDIUM NEUTRAL CITATION: | [2022] VSC 612 |
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PRACTICE AND PROCEDURE —Application to strike out statement of claim — Rule 23.02 of the Supreme Court (General Civil Procedure) Rules2015 (Vic) — Whether pleading or any part thereof fails to disclose cause of action, may prejudice, embarrass or delay the fair trial of the proceeding, or is otherwise an abuse of the process of the Court – Pleading embarrassing, as it is confusing and unclear, and some elements of the cause of action are inadequately pleaded.
WHISTLEBLOWER CLAIMS — Claim under s 47 of the Public Interest Disclosure Act 2012 (Vic) — Necessary elements of claim — Allegations of corrupt and/or improper conduct akin to allegations of fraud, dishonesty and misfeasance in public office —r 13.10(3)(b) of Supreme Court (General Civil Procedure) Rules 2015 (Vic) applies — Requirement to plead a causal nexus between knowledge and belief of the making of public interest disclosure and the detrimental action.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Catlin | Fountain-Smith Governance Lawyers Pty Ltd |
| For the Defendant | Mr C Winneke KC with Ms C Currie | Maddocks |
HER HONOUR:
Introduction
These reasons concern an application by the defendant in this proceeding, the City of Greater Dandenong (‘COGD’), for the plaintiff’s statement of claim filed on 13 May 2022 to be struck out pursuant to r 23.02 of the Supreme Court (General Civil Procedure) Rules2015 (Vic) (‘Rules’).
This proceeding was commenced in May 2022 by the plaintiff, Ms Sandra Kim Rogerson (‘Ms Rogerson’), and makes claims arising from her employment as an Environmental Health Officer with COGD. Ms Rogerson was employed by COGD between 12 August 2012 to 15 March 2021 (‘employment period’). However, the relevant events took place in early 2019, and concern the investigation and closure of I Cook Foods Pty Ltd (‘ICF’), a business operating within the Greater Dandenong municipality which supplied food services to, among others, hospitals and aged care facilities. In summary, Ms Rogerson claims that she was subjected to detrimental action in her employment, including constructive dismissal, by reason of her complaints to the Independent Broad-Based Anti-Corruption Commission (‘IBAC’) and the Victorian Ombudsman (‘Ombudsman’) concerning the alleged corrupt conduct and/or improper conduct (‘improper conduct’) of COGD officers in the course of their investigation and prosecution of ICF (‘disclosures’). She seeks damages from COGD under s 47 of the Public Interest Disclosures Act 2012 (Vic) (‘PID Act’), which permits a whistle-blower to recover damages for any adverse action taken in an employment context in reprisal for disclosures concerning alleged improper conduct.
By a summons filed on 29 July 2022, COGD applied for orders that the whole of the statement of claim be struck out, on the basis that the statement of claim:
(a) does not disclose a cause of action;
(b) is scandalous, frivolous or vexatious; and/or
(c) may prejudice, embarrass or delay the fair trial of the proceeding.
Prior to outlining Ms Rogerson’s claims in this proceeding, it is helpful to provide some background regarding the investigation and closure of ICF, which is also the subject of another proceeding in this Court (‘ICF litigation’), in which ICF has sued the State of Victoria and COGD. The ICF litigation commenced in June 2020.
A helpful summary of the issues in the ICF litigation is to be found in the recent decision of Baker JR in I Cook Foods Pty Ltd v State of Victoria (Department of Health and Human Services) & Anor.[1]Judicial Registrar Baker commenced his reasons as follows:
In this proceeding (herein referred to as ‘the government proceeding’) the plaintiff claims damages from the first defendant (referred to for convenience as ‘the State’, for the then-Department of Health and Human Services (‘DHHS’)) and second defendant (referred to as ‘COGD’) in respect of a closure order made concerning the plaintiff’s premises on 21 February 2019 under s 19 of the Food Act 1984 (Vic) (‘Food Act’), as well as a variation to that order made on 23 February 2019. The orders had the effect of preventing the plaintiff from carrying on its business.
The plaintiff alleges that the closure order was invalidly made and that it was made as a consequence of actions taken by officers of the defendants, either maliciously, or with the intention of closing the plaintiff down regardless of whether its food was unsafe or unsuitable, and/or to reduce competition for a rival catering company, known as Community Chef.[2]
[1][2022] VSC 587.
[2]Ibid [4]–[5].
As can be seen from the following, there is some overlap between what Baker JR described as the ‘key individuals’ in the ICF litigation and a number of people referred to in the statement of claim in this proceeding, including:
(a)Mr Gavin Buckett, the auditor referred to above who is a defendant in the auditor proceeding;
(b)Mr Ben Cook, who was the general manager of [ICF];
(c)Dr Brett Sutton, who was at the relevant times the Acting Chief Health Officer of the DHHS;
(d)Ms Elizabeth Garlick, who was an Environmental Health Officer for the COGD;
(e)Ms Leanne Johnson, who was an Environmental Health Officer for the COGD;
(f)Ms Pauline Maloney, who was Senior Policy Officer in the Food Safety Unit of the DHHS; and
(g)Mr John Bennie, who was the chief executive officer (‘CEO’) of the COGD and a board member of Community Chef.[3]
[3]Ibid [8].
Judicial Registrar Baker then went on to summarise the key allegations made in the ICF litigation, as follows:
... the plaintiff says that it produced four lines of food products for customers in Victoria at its premises in Dandenong South, and that its main market competitor was Community Chef. The plaintiff pleads that Community Chef was established by several local councils, including COGD, and that Mr Bennie was a member of the Community Chef board.
In January 2019, a patient was infected with listeria monocytogenes at Knox Hospital, for which the plaintiff was one of a number of food suppliers. As a result of this infection, investigations and testing were required to be conducted of the plaintiff’s premises and products. The plaintiff pleads that the testing performed did not identify listeria monocytogenes on kitchen surfaces at its premises, but that it was detected at a level of less than 10 colony-forming units per gram in silverside/corned beef purchased by the plaintiff from a supplier of smallgoods, as well as in several ingredients used by the plaintiff in combination with the silverside/corned beef. The plaintiff says that the patient at Knox Hospital could have been infected from silverside/corned beef produced by the smallgoods producer, or from another high‑risk food, but was not infected by food it had produced.
The ASOC states that on 21 February 2019, a closure order was issued under s 19 of the Food Act, which required that the plaintiff’s premises not be used for the preparation or handling/sale of any food, and that food produced by the plaintiff at the premises since 13 January 2019 be destroyed.
On 23 February 2019 a varied order was issued pursuant to s 41A of the Interpretation of Legislation Act 1984 (Vic), which continued to restrict the use of the plaintiff’s premises in relation to the preparation, handling and sale of food, and also required that a “microbiological test and hold program” be implemented for three of the plaintiff’s product lines before any food product was released.
The plaintiff says that in making those two orders, Dr Sutton relied on or purported to rely on an email sent by an authorised officer at 8:21 pm on 21 February 2019, and documents referred to in that email. The plaintiff alleges that the closure orders were invalid, because:
(a)they were made without the report of an authorised officer as required by the Food Act, because the email correspondence purported to be relied upon referred to a decision having already been made; and/or
(b)Dr Sutton could not have been satisfied that the plaintiff’s premises were unsafe or unsuitable within the meaning of ss 4D or 4E of the Food Act because the email correspondence relied on observations of the premises made by COGD officers when the plaintiff says, to the knowledge of DHHS, COGD was in a position of conflict (due to Mr Bennie’s role on the board of a market competitor, Community Chef); and/or
(c)Dr Sutton breached the rules of natural justice by making the initial closure order without providing the plaintiff with a copy of the email and related documents relied upon, or affording the plaintiff an opportunity to respond to it or to the closure order itself, before issuing the order.
The plaintiff alleges that Dr Sutton was recklessly indifferent as to whether the closure orders were beyond power, and as to the likelihood of the orders causing harm to the plaintiff. It says that the State is vicariously liable for the acts and omissions of Dr Sutton.
The plaintiff says that it has suffered loss and damage as a result of the closure orders, including from destroyed food products, the costs of carrying out a required testing program, loss of food and pre-bought stock, losses of revenue from contracts with existing customers, and the loss of an opportunity to form a joint venture from which the plaintiff expected to generate income.[4]
[4]Ibid [13]–[19].
In the ICF litigation, ICF makes serious allegations against both Ms Elizabeth Garlick and Ms Leanne Johnson of COGD, as summarised by Baker JR in the following section of his reasons:
The plaintiff’s pleadings place particular significance on the actions of two individuals alleged to have been involved in the processes undertaken in February 2019 concerning the closure orders. Ms Elizabeth Garlick and Ms Leanne Johnson are identified as officers of the COGD, environmental health officers (‘EHOs’) appointed under s 29 of the Public Health and Wellbeing Act 2008 (Vic) and authorised officers under the Food Act. The plaintiff pleads that both Ms Garlick and Ms Johnson were agents of DHHS and/or COGD, and were acting with the authority or implied authority of one or both of those entities at relevant times.
The ASOC contains allegations that on 18 February 2019, Ms Garlick conducted an inspection of the plaintiff’s premises in her capacity as an authorised officer and an agent of DHHS and/or COGD. The plaintiff alleges that during that inspection, Ms Garlick did not wear a body camera and that she planted a live slug on the premises. Ms Garlick is alleged to have provided a written and oral report of her inspection to Ms Johnson, including telling Ms Johnson that she found a slug on the site.
As a result, the plaintiff alleges that Ms Johnson determined that the plaintiff’s premises was not fit for food production, directed that Ms Garlick serve certain orders under the Food Act on the plaintiff, and considered that she would need to inspect the plaintiff’s premises herself. The plaintiff identifies a number of complaints about the appropriateness of these orders and identifies what it says are a series of errors in the orders served on 18 February 2019 in an annexure to the ASOC.
The plaintiff alleges that Ms Garlick and Ms Johnson inspected the premises on 20 and 21 February 2019. On 21 February 2019, Ms Johnson is alleged to have informed the plaintiff that DHHS had issued a request for the plaintiff’s premises to be closed, and that it was COGD’s responsibility to be able to demonstrate that the plaintiff’s food was safe.
Further, the plaintiff alleges that in February 2019 Ms Johnson and/or Ms Garlick gave DHHS copies of certain documents, including a Food Safety Audit Report dated 3 September 2015 (‘2015 Audit Report’). This report identified a number of deficiencies in the plaintiff’s operations. The plaintiff alleges that the use of the 2015 Audit Report was false or misleading in that the deficiencies identified had been remedied subsequently, and a 2017 report found that the plaintiff’s operations were compliant with applicable requirements.
The plaintiff alleges that on 21 February 2019 Ms Johnson informed DHHS that she had attended and inspected the plaintiff’s premises and found a number of identified faults with the plaintiff’s food safety practices. Ms Johnson is alleged to have told DHHS that a closure order should be served on the plaintiff, preventing the production of all food at its premises.
The plaintiff contends that Ms Johnson’s statements on 21 February 2019 were false or misleading, as it says the specific complaints identified were not true, and there was no good reason to completely close the plaintiff’s premises in the circumstances.
The plaintiff alleges that Dr Sutton relied upon or was influenced by the orders issued on 18 February 2019 by COGD, the 2015 Audit Report, and/or Ms Johnson’s statements to DHHS on 21 February 2019, in deciding to issue the orders made on 21 and 23 February 2019.
Ultimately, the plaintiff pleads that in taking these actions both Ms Johnson and Ms Garlick acted maliciously and/or with the intention of closing down the plaintiff’s premises regardless of the safety or suitability of food produced there, and/or with the intention of closing down the plaintiff’s premises to reduce competition in the market for Community Chef. The plaintiff pleads that COGD and/or the DHHS are vicariously liable for the acts and omissions of Ms Johnson and Ms Garlick.[5]
[5]Ibid [20]–[28].
The allegations made by ICF against COGD in the ICF litigation differ somewhat from the allegations made by Ms Rogerson in this proceeding. In the ICF litigation, ICF has made the (well publicised) claim that Ms Garlick, another Environmental Health Officer employed by COGD, planted a live slug at ICF’s premises. In this proceeding, Ms Rogerson alleges that Ms Garlick created or manipulated photographic evidence to show the presence of a slug at ICF’s premises.
On the other hand, there is some commonality of the allegations made by ICF in the ICF litigation and the allegations made by Ms Rogerson in this proceeding. In particular, both ICF and Ms Rogerson allege that Ms Johnson (Ms Rogerson’s immediate supervisor) and Ms Garlick actively conspired to cause commercial harm to ICF by providing false information and evidence to the Department of Health and Human Services (‘DHHS’) regarding the conditions at ICF’s premises. Both ICF and Ms Rogerson say that the conduct of Ms Johnson and Ms Garlick was motivated by the fact that ICF was a commercial competitor of RFK Pty Ltd (trading as Community Chef) (‘Community Chef’). COGD is a shareholder of Community Chef, and until August 2020, the CEO of COGD, Mr John Bennie, was a director of Community Chef.
The statement of claim
In the statement of claim, Ms Rogerson’s employment duties and responsibilities during the employment period were described as being “to secure compliance by the operators of, amongst other things, food businesses in her municipal area with the Food Act 1984 (Vic) (‘Food Act’), the Public Health and Wellbeing Act2008 (Vic) (‘PHWB Act’), Australian Standard 3.2.1 and the Local Government Act2020 (Vic)”. Additionally, Ms Rogerson said that her duties included, among other things:
(a) taking directions from her team leader, who in 2019 was Ms Johnson (Coordinator Public Health);
(b) the inspection of food preparation premises and taking of samples from those premises;
(c) ensuring proper processes so as to maintain the integrity of the chain of custody of evidence from sampling undertaken at food preparation premises;
(d) ascertaining compliance with and investigating breaches of the Food Act and/or the PHWB Act by food preparation businesses;
(e) where appropriate, being an informant in and/or facilitating the prosecution of food preparation businesses for alleged breaches of the Food Act and/or the PHWB Act; and
(f) representing COGD in legal proceedings.
The statement of claim outlines the events concerning the investigation and closure of ICF during the period in or around January and February 2019 until the termination of Ms Rogerson’s employment with COGD on 15 March 2021, including the events said to justify the disclosures.
On or around 19 January 2019, Ms Rogerson became aware by an email from DHHS that an inpatient at Knox Private Hospital (‘Knox Hospital patient’) was diagnosed with an illness caused by ingestion of listeria monocytogenes.[6] Ms Rogerson was subsequently directed by Ms Johnson to attend ICF’s premises to take samples and swabs at the site. On 1 February 2019 (‘collection date’), Ms Rogerson attended ICF’s premises to take samples and to test for contamination with listeria monocytogenes.
[6]The Knox Hospital patient died on or about 4 February 2019.
Ms Rogerson claims that following the collection date she experienced bullying and harassment in the course of her employment with COGD. Ms Rogerson claims that this bullying and harassment included:
(a) numerous calls made by Ms Johnson to her while she was recovering from surgery, which involved “gaslighting” by Ms Johnson. Ms Johnson allegedly implied, among other things, that the samples Ms Rogerson took from ICF’s premises on the collection date were taken incorrectly, and that Ms Rogerson had allowed ICF to conduct its business in contravention of the Food Act, resulting in the death of the Knox Hospital patient;
(b) on 2 April 2019, Ms Rogerson was suspended by COGD from performing her normal work duties;
(c) coercion by another COGD employee, Mr Greg Spicer, to amend and sign a statement in relation to ICF and the collection date (‘statement’). Ms Rogerson said that she knew that some of the changes that she made to the statement were untrue or inaccurate; and
(d) from 6 March 2019, Ms Johnson repeatedly initiated private discussions with Ms Rogerson without notice or agenda, contrary to the policies of COGD. Ms Rogerson claims that during these meetings she was “ambushed”, “thrown under the bus” and spoken to in an “accusatory, intimidatory and hostile fashion” when discussing the collection date and the subsequent investigation of ICF by COGD.
The statement of claim also sets out Ms Rogerson’s allegations regarding other conduct of COGD employees and managers following the collection date, including an allegation that Ms Garlick and Ms Johnson manufactured evidence to be used in the prosecution of ICF for food safety offences.
In particular, Ms Rogerson claims that the following matters evidenced a ‘tortious conspiracy’ on the part of Ms Johnson and Ms Garlick during the investigation of ICF by COGD:
(a) in March 2019, Ms Rogerson witnessed Ms Garlick (in Ms Johnson’s presence) editing and falsifying photographs which were taken by Ms Garlick during in late February 2019 to show the presence of a slug on the floor of ICF’s premises; and
(b) when Ms Johnson and Ms Garlick saw that Ms Rogerson was observing their activities, they told her that they were editing body camera footage to remove private conversations.
Ms Rogerson alleges that the actions of Ms Johnson and Ms Garlick outlined above were taken for the dominant purpose of commercially sabotaging the business of ICF and damaging the reputation of ICF, as the falsified presence of a slug at the ICF premises could be used as evidence in support of allegations of poor pest control, lack of compliance with general hygiene standards and the risk of listeria monocytogenes contamination at ICF’s premises. Ms Rogerson also alleged that Ms Garlick has a “reputation of falsifying evidence”.
Ms Rogerson alleged that in March 2019 and April 2019, COGD was seeking evidence to support its conclusion that the Knox Hospital patient had died by reason of ingesting contaminated food produced by ICF, in order to:
(a) incriminate and ultimately prosecute ICF for food safety offences without any probative or cogent evidence;
(b) maliciously or recklessly secure a conviction or finding of guilt against ICF on the basis of falsified evidence;
(c) destroy or conceal evidence in contravention of s 254 of the Crimes Act 1958 (Vic); and
(d) pervert or attempt to pervert the course of justice and/or the due administration of justice.
Ms Rogerson alleged that, accordingly, officers and employees of COGD engaged in corrupt conduct within the meaning of s 4 of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) and improper conduct within the meaning of s 4 of the PID Act in that they:
(a) were in a position of conflict of interest, as the then acting CEO of the COGD, Mr Bennie, was at all material times a director of a commercial competitor of ICF (being Community Chef) for the period between 17 November 2017 to 7 August 2020; and
(b) improperly used their positions to cause detriment to ICF to gain a financial advantage for Community Chef.
Ms Rogerson said that the improper conduct was brought to her knowledge by:
(a) her involvement in the investigation of ICF;
(b) her presence at the COGD offices and from listening to conversations between managers and colleagues there between February and April 2019;
(c) overhearing conversations between Ms Garlick and Ms Johnson where the following statements were made: “is it all done?” and “Would you be able to do this editing”, and “we have to remove some private conversations and tidy it up”;
(d) her sighting of images displayed on two computer screens on Ms Garlick’s desk, with one screen depicting a slug and a cropping tool to circle an adjacent piece of tissue;
(e) her review of expert reports commissioned and prepared during the course of the investigation of the Knox Hospital patient’s death, which found that the presence of listeria monocytogenes at ICF’s premises was less than one tenth of the maximum permissible level, her knowledge that there was no evidence of what the Knox Hospital patient had eaten, and her knowledge that there were five other organisations providing food services to Knox Private Hospital;
(f) her knowledge that ICF had an exemplary record of compliance with food safety and hygiene standards, and that no other cases of illness caused by listeria monocytogenes contamination had been identified;
(g) the lack of, in Ms Rogerson’s opinion, any probative or cogent evidence to support the conclusion that any lack of hygiene or food safety on the part of ICF caused the death of the Knox Hospital patient;
(h) her observations of Ms Garlick falsifying images of a slug at ICF’s premises, and the improbable presence of a slug at ICF’s premises;
(i) the connection between the CEO of COGD and Community Chef;
(j) Ms Garlick’s inspection of ICF’s premises on or about 19 February 2019, more than two weeks after the death of the Knox Hospital patient, which was unnecessary and unprofessional given the urgency of a possible listeria monocytogenes contamination;
(k) Ms Garlick’s finding that ICF had not undertaken food safety training when Ms Rogerson knew that ICF had done so;
(l) the absence of any data from Primesafe, an authority with oversight of smallgoods production safety about any testing of production batches retained by ICF;[7] and
(m) the closure of ICF’s premises and the prosecution of ICF, when the usual course of action in similar cases was to prioritise lighter corrective or remedial action, particularly given that there was no evidence that food products supplied by ICF caused the death of the Knox Hospital patient.
[7]I assume this allegation means that there was no finding by Primesafe that food products prepared by ICF had tested positive for excess levels of listeria monocytogenes.
Ms Rogerson then went on to describe the closure of the ICF premises by the then acting Chief Health Officer of the State of Victoria, Dr Brett Sutton, who issued a closure order pursuant to s 19 of the Food Act on 21 February 2019, which was varied on 23 February 2019 (‘closure orders’).
Ms Rogerson alleged that the closure orders were invalid due to their reliance upon the findings of Ms Garlick. Ms Rogerson alleged that Ms Garlick was not authorised to inspect the ICF premises and reach the findings necessary to support the closure orders, and therefore the audit of the ICF premises by Ms Garlick was unauthorised and illegal.
Ms Rogerson then went on to allege that she knew that the media conference held by Dr Sutton on or around 22 February 2019 had the potential to damage the reputation and the client relationships of ICF, given that comments made by Dr Sutton during the media conference insinuated that the death of the Knox Hospital patient was related to listeria monocytogenes contamination at ICF’s premises. Further, she alleged that holding a media conference was unusual given that the matter was not newsworthy.
On 9 May 2019, Ms Rogerson lodged a complaint regarding to COGD’s conduct with respect to the investigation of ICF with IBAC (‘IBAC complaint’), which she said constituted a protected disclosure complaint within Part 2 of the PID Act. On 19 July 2021, Ms Rogerson referred the IBAC complaint to the Ombudsman.[8]
[8]Documents produced by Ms Rogerson pursuant to a Notice to Produce served by COGD on 21 June 2022 show that on 19 June 2019 a Senior Investigation Officer with the Ombudsman wrote to Ms Rogerson informing her that IBAC had referred the complaint to the Ombudsman, as IBAC had determined that the information Ms Rogerson had provided was not a protected disclosure complaint under the PID Act.
Ms Rogerson claims that following and by reason of COGD becoming aware of the IBAC complaint and its referral to the Ombudsman, she suffered detrimental action within the meaning of s 3 of the PID Act, and adverse action within the meaning of s 342 of the Fair Work Act2009 (Cth) (‘Fair Work Act’), which resulted in psychological injury, including a major depressive disorder, a post‑traumatic stress disorder and anxiety.
The detrimental action said to have been taken by COGD in reprisal for the disclosures included:
(a) its refusal to return Ms Rogerson to her usual field duties following her suspension on 2 April 2019;
(b) its refusal or neglect to rehabilitate Ms Rogerson following her complaints of stress to Ms Johnson and human resources manager Ms Nicole Josef; and
(c) the “constructive dismissal” of Ms Rogerson on 15 March 2021.
The adverse action (within the meaning of the Fair Work Act) claimed to have been taken by COGD was the suspension of Ms Rogerson from her work duties on around 2 April 2019.
Ms Rogerson claims that due to the psychological injury she suffered by reason of the conduct of COGD and its employees and managers, she is no longer able to work, and has suffered a loss of past and future income, loss of superannuation contributions, pain, suffering and humiliation, and loss of reputation.
It is not necessary for present purposes to consider COGD’s defences to Ms Rogerson’s allegations and claims, save to say that it denies that it engaged in any improper conduct. COGD’s defence also signalled the arguments it has advanced in the current application.
COGD’s submissions
COGD submitted that the statement of claim should be struck out in its entirety under r 23.02 of the Rules as it does not disclose a cause of action, and is scandalous or embarrassing.
COGD referred to the relevant principles for applications of the current kind as summarised in Wheelahan v City of Casey (No 12),[9] being:
[9][2013] VSC 316 (‘Wheelahan’).
[T]he cardinal rule is that a pleading must state all the material facts to establish a reasonable cause of action (or defence). The expression “material facts” is not synonymous with providing all the circumstances. Material facts are only those relied on to establish the essential elements of the cause of action;
[A]s a corollary, the pleading must be presented in an intelligible form - it must not be vague or ambiguous or inconsistent. Thus a pleading is “embarrassing” within the meaning of r 23.02 when it places the opposite party in the position of not knowing what is alleged;
…
[A] pleading which contains unnecessary or irrelevant allegations may be embarrassing - for example, if it contains a body of material by way of background factual matrix which does not lead to the making out of any defined cause of action (or defence), particularly if the offending paragraphs tend to obfuscate the issues to be determined;
[I]t is not sufficient to simply plead a conclusion from unstated facts. In this instance, the pleading is embarrassing;
…
[A] pleading should not be so prolix that the opposite party is unable to ascertain with precision the causes of action and the material facts that are alleged against it;
[E]xtensive cross-referencing of facts in a pleading may render parts of the pleading unintelligible;
…
[I]f the objectionable part of the pleading is so intertwined with the rest of the pleading so as to make separation difficult, the appropriate course is to strike out the whole of the pleading.[10]
[10]Ibid [25].
COGD submitted that the statement of claim does not disclose a coherent or logical cause of action, saying that “it is unclear from the statement of claim what cause of action is asserted, what the elements of the cause of action are and which material facts are being relied on in support of that cause of action.”
In relation to Ms Rogerson’s claim under s 47 of the PID Act (‘s 47 claim’), COGD submitted that “the statement of claim does not set out in clear terms, with proper and intelligible identification of the material facts alleged, a cause of action”.
In relation to Ms Rogerson’s claim of adverse action under the Fair Work Act, COGD observed that this Court’s jurisdiction would not be enlivened to entertain this claim even if this claim was coherently pleaded.
COGD submitted that the statement of claim is ‘manifestly defective’[11] and that these defects are “so extensive that they cannot be cured by selective striking‑out or amendment”.[12]
[11]Knorr v CSIRO (No 2) [2012] VSC 268 [1] (‘Knorr’).
[12]Ibid.
COGD relied upon the following matters in support of its contention that the statement of claim ought be struck out:
(a) multiple allegations are made but are not pleaded to any logical conclusion and are replete with high level, prolix, repetitive generalisations;[13]
[13]Ibid [21].
(b) there is extensive cross‑referencing contained in the statement of claim, which makes the pleading difficult to comprehend. Further, many cross-references were made without any explanation or logical connection to other allegations within the statement of claim;
(c) various allegations in the statement of claim seem to have been made for the sole purpose of abusing or injuring COGD and its employees, and as such are scandalous;
(d) the deficiencies in the statement of claim are unable to be corrected through amendments or selective striking out as ‘the objectionable parts of the pleading are so intertwined with the rest of the pleading that separation is effectively impossible’;[14] and
(e) the statement of claim also contains numerous allegations that are of no clear factual relevance to any claim that Ms Rogerson may have (as opposed to claims that ICF may have), such as the reference to the conduct of Dr Sutton and DHHS.
[14]Annesley v Westpac [2016] VSC 323 [95].
At the hearing of the application, senior counsel for COGD submitted that the statement of claim was so unclear, so confusing and so replete with scandalous and embarrassing allegations, that Ms Rogerson should start again. Further, while there are allegations against named employees of COGD in the statement of claim, it is not clear from the pleading who is said to have taken adverse action against Ms Rogerson. While Ms Rogerson pleads that she held a reasonable suspicion that COGD engaged in improper conduct, she doesn’t say when she started to hold that suspicion. Further, she makes allegations which simply do not go anywhere, such as the allegations against Dr Sutton and DHHS regarding the closure orders, and the allegations about the cause of death of the Knox Hospital patient.
Ms Rogerson’s submissions
Ms Rogerson did not take issue with the legal principles and authorities relied upon by COGD in support of its application.
Ms Rogerson submitted that the relief she seeks has been misunderstood by COGD. The various claims and causes of action referred to by Ms Rogerson in the statement of claim were included to guide the Court as to appropriate quantum of damages, not to attempt to prove those causes of action. It is not her intention to seek relief for each cause of action, rather, the claims under the Fair Work Act were referred to for the purpose of making “clear that the mistreatment [and other detrimental actions are] … legally characterizable wrong[s]”. Ms Rogerson recognises that some of the actions alluded to in the statement of claim do not fall under the jurisdiction of this Court. During the course of the hearing of the application, counsel for Ms Rogerson confirmed that her claim is limited to a s 47 claim.
In response to COGD’s submission to the effect that the allegations in the proceeding are scandalous, Ms Rogerson submitted that a s 47 claim “necessarily concerns serious misconduct which is inherently scandalous”, and that the Court may consider the magnitude of the improper conduct (including its systemic nature, dollar value, risk to public safety and injury to public trust) when making any assessment of the availability and quantum of exemplary damages.[15]
[15]Christie v Christie (1873) LR 8 Ch App 499.
Ms Rogerson submitted that the statement of claim includes the allegations which are relevant to the elements that must be established to make good a s 47 claim. These elements include the matters and circumstances underpinning Ms Rogerson’s “reasonable suspicion” of the alleged corrupt and/or improper conduct. Ms Rogerson submitted that the elements of s 43 of the PID Act (concerning detrimental action) are also properly pleaded in the statement of claim.
Ms Rogerson accepts that the paragraphs of the statement of claim which concern the involvement of Dr Sutton and the closure orders may benefit from clarification by inserting an additional paragraph to the effect that the closure orders are relied upon to support Ms Rogerson’s reasonable suspicion of the improper conduct of COGD.
In response to COGD’s criticisms of the cross-referencing contained in the statement of claim, Ms Rogerson submitted that cross referencing which is defective or embarrassing is not a sufficient basis to strike out a pleading, and that it is clear from COGD’s submissions that they understand what is being pleaded in the statement of claim.
Finally, Ms Rogerson observed that making disclosures of improper conduct has been accepted as something that will not occur as a matter of course, and that the PID Act encourages disclosure of improper conduct by whistle-blowers. Ms Rogerson submitted that it “would be ironic if overly delicate pleadings requirements were added to whistle-blower’s difficulties”.
In his submissions at the hearing of the application, counsel for Ms Rogerson submitted that COGD’s criticisms of the statement of claim are superficial and tendentious, and evidence an attempt by COGD to dispose of this proceeding summarily. He submitted that it is clear from the statement of claim that COGD was the party which took detrimental action against Ms Rogerson, and the PID Act provides that COGD is liable for the actions of its agents.
Counsel for Ms Rogerson submitted that all of the allegations pleaded in the statement of claim are relevant and necessary. In order to succeed in her s 47 claim, Ms Rogerson only needs to establish that she has a reasonable suspicion of improper conduct based upon sufficient grounds, and the mistreatment of an employee may well be a legitimate basis for a reasonable suspicion of improper conduct.
In response to my query as to whether the pleading of certain allegations (such as the legality or otherwise of the closure orders, and the cause of death of the Knox Hospital patient) might impose an undue burden upon Ms Rogerson, as well as COGD and the Court, counsel for Ms Rogerson submitted that she has put these matters forward as being grounds for her reasonable suspicions of improper conduct, and many of her allegations in the statement of claim also go to the question of Ms Rogerson’s entitlement to exemplary damages. He rejected the suggestion that some of the allegations made in the statement of claim had the sole purpose of injuring COGD employees, saying that these allegations were a critical part of the narrative, as was the allegation that ICF was shut down on an improper basis, and as a consequence of a “huge regulatory overreaction” led by Dr Sutton.
Relevant legal principles
Rule 23.02 of the Rules provides that:
Where an indorsement of claim on a writ or originating motion or a pleading or any part of an indorsement of claim or pleading—
(a) does not disclose a cause of action or defence;
(b) is scandalous, frivolous or vexatious;
(c) may prejudice, embarrass or delay the fair trial of the proceeding; or
(d) is otherwise an abuse of the process of the Court—
the Court may order that the whole or part of the indorsement or pleading be struck out or amended.
There is no dispute that the applicable legal principles are those summarised in Wheelahan[16] (see paragraph 31 above). The purpose of r 23.02 is to ensure compliance with the rules of pleading, and to ensure that the opposite party is able to know what is alleged against them.[17]
[16][2013] VSC 316.
[17]Annesley v Westpac Banking Corp [2016] VSC 323 [94]–[95].
In Trade Practices Commission v Australian Iron & Steel Pty Ltd, [18] Lockhart J struck out a statement of claim on the basis that:
It fails to plead the material facts, it contains confusing and irrelevant material, it uses ambiguous terms, pleads particulars rather than material facts and asserts conclusions or opinions. Certain of the matters are perfectly well pleaded, but the defective parts are so inextricably intertwined with offending material that an oppressive burden is cast upon the respondents to spell out the alleged cause or causes of action.[19]
[18](1990) 92 ALR 395.
[19]Ibid 413.
A pleading which is unintelligible, vague or ambiguous, or too general, is embarrassing as it puts the responding party in a position where they do not know what is alleged against them.[20]
[20]Stuart v Mordialloc Sporting Club Inc; John Barr Investments Pty Ltd v Mordialloc Sporting Club Inc [2021] VSC 244 [84]–[193].
Further, allegations which are made for the sole purpose of abusing or injuring the other party, or are indecent or scandalous, are liable to be struck out. However, an allegation which would otherwise be scandalous but is necessary or relevant to a question in the proceeding will not be struck out.[21]
[21]Christie v Christie (1873) LR 8 Ch App 499. See also Sarto v Sarto [2021] VSC 295 [42].
If a pleading is held to be objectionable under r 23.02, leave will generally be given to amend the pleading or alternatively to serve another pleading.[22] At the hearing of the application, COGD confirmed that it does not seek summary judgment against Ms Rogerson, and if its application to strike out the statement of claim is successful, Ms Rogerson should be given an opportunity to replead. However, COGD submitted that the whole of the statement of claim ought to be struck out, and Ms Rogerson should be required to start afresh.
[22]Turner v Bulletin Newspaper Co Pty Ltd (1974) 131 CLR 69.
Finally, an application of the current kind does not require (or permit) any assessment of the merits of the factual allegations made in the statement of claim. I am required to proceed on the assumption that all of the matters alleged in the statement of claim can be proved at trial.
Discussion
Accordingly, the following issues fall for determination in the current application:
(a) whether the statement of claim discloses any cause of action;
(b) whether the statement of claim or any part of it is embarrassing or scandalous;
(c) if defective, whether statement of claim can be remedied by partial strike-out or amendment, or whether the defective parts of the statement of claim are ‘so intertwined’ with the remainder such as to render a partial strike-out futile.
Before addressing the validity of the specific criticisms levelled by COGD at the statement of claim, I would make the overarching observation that, if it is necessary to rely upon a party’s submissions in applications of the current kind to understand the way in which that party puts their case, then the pleading probably requires substantial amendment or refinement.
This proposition is underlined by the current application. It was only after reviewing Ms Rogerson’s written submissions (which were amplified during the course of counsel’s oral submissions during the course of the hearing of the application) that it could be appreciated by anyone reading the statement of claim that, among other things:
(a) Ms Rogerson’s claim for loss and damage is limited to a s 47 claim;
(b) that many of the factual matters pleaded in the statement of claim were pleaded in order to support Ms Rogerson’s allegation that she reasonably believed that her colleagues at COGD were engaging in improper conduct within the meaning of the PID Act;
(c) further, some of Ms Rogerson’s allegations of mistreatment (including events which took place before she made the disclosures in May 2019) were not only relied upon by Ms Rogerson as being conduct amounting to detrimental action, but also as conduct giving rise to or supporting her reasonable belief that her colleagues were engaging in improper and/or corrupt conduct; and
(d) some of the factual matters concerning the investigation and closure of ICF, including allegations concerning the actions of Dr Sutton and DHHS, and Ms Rogerson’s opinion regarding the cause of death of the Knox Hospital patient, and the compliance of ICF with the Food Act and other relevant legislation, were relied upon not only to support Ms Rogerson’s allegation that she reasonably believed that her colleagues were engaging in improper conduct, but also in support of Ms Rogerson’s claim for exemplary damages.
Accordingly, it could not be said that the statement of claim fails to disclose a cause of action, although there are some defects in the pleading of the necessary elements of a s 47 claim which I will discuss later in these reasons. However, that it is now much clearer to me and to COGD’s legal representatives how Ms Rogerson intends to put her case at trial does not absolve Ms Rogerson and her legal representatives of the responsibility for preparing a pleading which pleads the necessary material facts to support the s 47 claim in a cogent and coherent fashion.
The necessary elements of a s 47 claim are discussed later in these reasons. For present purposes, all that it is necessary to say is that the failure of the statement of claim to identify the necessary elements of a s 47 claim, in a clear and logical fashion, and to identify the material facts necessary to make out the necessary elements of a s 47 claim in a clear and logical fashion, means that the statement of claim is embarrassing.
Pleadings are important. They define the scope of the facts to be proved and the issues to be determined at trial. They ensure that the parties to a proceeding are afforded natural justice, by giving them notice of the case they have to meet at trial. They define and confine the scope of the parties’ discovery obligations.
Pleadings have a broader audience than just the parties to a proceeding. They are, in the main, public documents, and given the certification requirements of the Civil Procedure Act 2010 (Vic), a reader can assume that any allegations made in a pleading have a legitimate factual foundation. Finally, the judge hearing the trial is entitled to assume that a party’s case can be discerned from the pleadings without having to refer to any other documents.
Save for suggesting that the statement of claim could benefit from an additional paragraph clarifying the purpose for which Ms Rogerson relies upon her allegations concerning the closure orders, counsel for Ms Rogerson did not concede that there were any difficulties or deficiencies in the way that the statement of claim is currently framed or expressed. I disagree.
Counsel for Ms Rogerson submitted that this Court should not adopt too pedantic an approach towards a plaintiff in the position of Ms Rogerson, given that the law in relation to s 47 remains undeveloped, given that the underlying objective of the PID Act is to encourage whistle-blower claims, and given that the PID Act creates a ’no-costs’ jurisdiction.[23] Essentially, Ms Rogerson submitted that plaintiffs in her position should not be precluded from or deterred from bringing claims under the PID Act by potentially being exposed to applications of the current kind made by well-resourced defendants which have engaged in improper conduct or corrupt conduct.
[23]Section 47(7) of the PID Act enacts a rebuttable presumption that the Court will not award costs against an unsuccessful claimant under s 47 of the PID Act.
While I do not take issue with the thrust and spirit of Ms Rogerson’s submissions regarding the objectives of the PID Act and the hurdles facing whistle-blowers in pursing redress, the suggestion that these matters should influence my ‘discretion’ as to whether to strike out the statement of claim misunderstands the nature of the current application. What the current application calls for is an evaluative exercise as to whether the statement of claim sufficiently complies with the requirements for pleadings as laid down by the Rules and the relevant authorities. No real exercise of discretion is involved, and the fact that the defendant is a well-resourced public authority accused of serious misconduct does not deprive it of its entitlement to natural justice, which can only be provided by it knowing the case it has to meet at trial.
Further, given the seriousness of the allegations made by Ms Rogerson against COGD and individual employees of COGD, which are referred to in the statement of claim as amounting to corrupt conduct, and are akin to fraud, dishonesty, and misfeasance in public office, COGD is entitled to know the case against it with some degree of precision and specificity. In his reasons in the ICF litigation, Baker JR said, in relation to an application by ICF to amend its statement of claim to put forward allegations of misfeasance in public office against Ms Garlick and an officer of DHHS, as follows:
Where a pleading alleges matters such as misfeasance in public office, it is clear that the requirements for a proper pleading are elevated, or somewhat more stringent, than would be expected for other claims in which such serious allegations are not raised. The authorities establish that a pleading such as the one the plaintiff proposes must provide a level of specificity and particularisation sufficient to allow the parties that are the subject of the allegations to know the case that they will be faced with at trial. Similarly, they establish clearly that a pleading that relies upon particulars or facts that are consistent with an honest discharge of the public officer’s function will not be permitted to proceed. There must be something more identified which provides a basis for asserting the impropriety that the proposed pleading raises. These requirements reflect the gravity of the kinds of allegations raised in such claims, and the expectation that assertions of fraud, dishonesty or misfeasance will not be raised lightly.[24]
[24][2022] VSC 587 [123].
I consider that these observations apply with similar force to allegations of improper conduct within the meaning of the PID Act.
The elements of a s 47 claim are to be found in the following sections of the PID Act.
Section 47 of the PID Act provides as follows:
Proceedings for damages for reprisal
(1)A person who takes detrimental action against another person in reprisal for a public interest disclosure is liable in damages for any injury, loss or damage to that other person.
(2)The damages may be recovered in proceedings as for a tort in any court of competent jurisdiction.
(3)Any remedy that may be granted by a court with respect to a tort, including exemplary damages, may be granted by a court in proceedings under this section.
(4)The right of a person to bring proceedings for damages does not affect an other right or remedy available to the person arising from the detrimental action.
(5)Proceedings for damages under this section may be brought even if a prosecution in relation to the detrimental action has not been brought under section 45.
(6)Without limiting the court’s discretion, when granting a remedy under this section, the court may take into account any order made under section 46 or 49 in relation to the same conduct.
(7)In proceedings under this section, costs against the person alleging that detrimental action has been taken in reprisal for a public interest disclosure must not be awarded unless the court is satisfied –
(a)the person’s claim that detrimental action had occurred is vexatious; or
(b) the person did not conduct the litigation reasonably.
Section 43 of the PID Act provides as follows:
(1)For the purposes of this Act and subject to subsections (2) and (3), a person takes detrimental action against another person in reprisal for a public interest disclosure if—
(a)the person takes or threatens to take detrimental action against the other person because, or in the belief that—
(i)the other person or anyone else has made, or intends to make, the disclosure; or
(ii)the other person or anyone else has cooperated, or intends to cooperate, with an investigation of the disclosure; or
(b)for either of those reasons, the person incites or permits someone else to take or threaten to take detrimental action against the other person.
Section 9 of the PID Act provides as follows:
(1)Subject to subsection (3) and Division 3, a public interest disclosure is a disclosure by a natural person of—
(a)information that shows or tends to show—
(i)a person, public officer or public body has engaged, is engaging or proposes to engage in improper conduct; or
(ii)a public officer or public body has taken, is taking or proposes to take detrimental action against a person in contravention of section 45; or
(b)information that the person reasonably believes shows or tends to show—
(i)a person, public officer or public body has engaged, is engaging or proposes to engage in improper conduct; or
(ii)a public officer or public body has taken, is taking or proposes to take detrimental action against a person in contravention of section 45.
Subject to some observations I will make later in these reasons regarding Ms Rogerson’s allegations concerning the alleged conflict of interest arising from COGD’s connections with Community Chef, and some concerns I have about the adequacy of the pleading of the causal link between the disclosures and the alleged detrimental action, and some other relatively minor matters, I largely agree with Ms Rogerson’s submissions to the effect that allegations relevant to the elements of a s 47 claim are “riddled” throughout the statement of claim. But that is part of the problem. The statement of claim contains, in effect, a chronology of events, without tying those events, and Ms Rogerson’s allegations about those events, to the elements of a s 47 claim. Accordingly, the problems with the statement of claim largely concern its structure, rather than its content. Further, I suspect that if the problems with the structure and coherence of the statement of claim were addressed, the cross-referencing problem raised by COGD in its submissions (with which I largely agree) may hopefully fall away.
In order to make good a s 47 claim, a plaintiff in the position of Ms Rogerson must establish that:
(a) she made a public interest disclosure within the meaning of s 9 of the PID Act;
(b) the defendant took or threatened to take detrimental action against her because she had made, or in the belief that she had made, or intends to make, a public interest disclosure; and
(c) she has suffered loss and damage by reason of the detrimental action.
In order to qualify as a public interest disclosure, the disclosure must include information which shows, or tends to show, that a person, public office or public body is engaging in improper conduct or, that the person making the disclosure reasonably believes shows or tends to show that a person, public officer or public body has engaged in improper conduct.
There is no dispute that COGD is a public body. Further, while no specific allegation is made to this effect in the statement of claim, it appears that the COGD personnel referred to in the statement of claim would be ‘public officers’ for the purposes of the PID Act. Further, I am prepared to assume that the conduct complained of by Ms Rogerson, being that COGD employees deliberately provided false information and fabricated evidence to DHHS for the purpose of adversely affecting the business of ICF is improper conduct within the meaning of the PID Act. Finally, I accept, at least for present purposes, that what amounts to detrimental action could extend to what is described in the statement of claim as bullying and harassment, and the conduct set out in paragraph 14 of the these reasons could, again, at least for present purposes, amount to bullying and harassment.
The elements of a s 47 claim raise issues of causation in two respects. First, Ms Rogerson must establish that any detrimental action she says was taken against her by COGD was taken because she had made, or in the belief she had made, or intended to make the disclosures. Secondly, she must establish that the detrimental action caused her loss and damage. While there is no particular difficulty with respect to the latter element at this stage of the proceeding (although the details provided are quite limited), there are some difficulties with the pleading of the former element, which I will return to later in these reasons.
Returning now to the statement of claim itself, there are no particular difficulties with the background matters pleaded at paragraphs 1 to 12 of the statement of claim, or the pleading of the disclosures, the detrimental action, and the impact of the detrimental action upon Ms Rogerson at paragraphs 50 to 69 of the statement of claim, subject to some comments I will make later in these reasons. However, the pleading of various matters under a number of headings between paragraphs 13 to 49 of the statement of claim, without tying them back to the elements of a s 47 claim (see paragraph 72 above), renders the pleading confusing and accordingly, embarrassing, in the sense that it is difficult for COGD to understand the case it has to meet (and for the Court to know the case it must determine).
It seems to me that a more comprehensible statement of claim could be drawn if the following structure was adopted:
(a) the parties, including Ms Rogerson’s standing to bring the proceeding, and the application of the PID Act to COGD and its officers;
(b) the uncontroversial facts surrounding the investigation of ICF and the making of the closure orders;
(c) the making of the disclosures;
(d) why the disclosures contained information which showed or tended to show improper conduct on the part of COGD, and/or why Ms Rogerson formed the reasonable belief that the information showed or tended to show that COGD had engaged in improper conduct. This part of the pleading could be where Ms Rogerson explains why she formed the view that the closure of ICF was wrong, and that COGD and/or its officers and employees, were motivated to falsify evidence to support the closure orders;
(e) the detrimental action taken against Ms Rogerson, including the detrimental action said to have been taken against her because CGOD believed or suspected that she would make a public interest disclosure. I accept that the latter allegation is pleaded at paragraph 58 of the statement of claim. I am not convinced that the particulars provided under that paragraph really support the allegations made in paragraph 58 of the statement of claim, but that may be a matter for another day;
(f) the loss and damage said to have been suffered by Ms Rogerson as a consequence of the detrimental action; and
(g) the matters relied upon by Ms Rogerson to support her claim for exemplary damages (which in the statement of claim seem to be a narrower range of matters than those referred to by counsel for Ms Rogerson during the course of the hearing of the application).
It seems to me that if the allegations made in the statement of claim were reorganised in such a fashion as to align with the statutory framework of a s 47 claim, then the statement of claim would be much more coherent and capable of being readily understood.
That said, I do consider that there are some deficiencies in the pleading of critical elements of the s 47 claim which should be addressed in any revised or fresh pleading. These deficiencies are discussed further below.
While Ms Rogerson’s pleading of detrimental action and claim for loss and damage was not a major focus of the current application, it does seem to me that the details of the detrimental action, in particular the detrimental action which post-dated the disclosures, are quite scant. While the claims of bullying and harassment by Ms Johnson in the period prior to the disclosures are pleaded in some detail, there is no information in the statement of claim as to who made the decision to suspend her in April 2019, who refused to ‘rehabilitate’ her, and who forced her to sign her resignation letter in 2021. Similarly, there is no information in the statement of claim as to what occurred between her suspension in April 2019 and her departure from COGD in March 2021, including details of when and how COGD ‘refused to rehabilitate her’. It seems to me to be quite important to know the identity of the individuals responsible for taking the detrimental action against her because she threatened to expose the alleged improper conduct.
More precision about the detrimental action is also required because of the causation issue referred to in paragraph 75 of these reasons. As I indicated there, in order to make good her s 47 claim, Ms Rogerson must establish that any detrimental action taken against her was taken because, or in the belief that Ms Rogerson had made or would make the disclosures.
It seems to me that in order to establish the necessary causal nexus between the disclosures (or any potential disclosures) and the detrimental action, Ms Rogerson would need to establish that the person or people that took the detrimental action had the requisite knowledge or belief. If seems to me to be insufficient for Ms Rogerson to simply say that COGD is liable for the conduct of its servants and agents without identifying who those agents are and why it is said that those particular individuals would have the requisite knowledge or belief. Accordingly, the identity of the parties who initiated and/or implemented the detrimental action, and particulars of their requisite knowledge and/or belief should be provided in the statement of claim.[25] Alternatively, if it is said that the detrimental action was taken by someone who did not have the requisite knowledge or belief, but had acted upon the instructions of or at the behest of someone who did have the requisite knowledge or belief, then that should be spelt out in the statement of claim.
[25]Having regard to the requirements of r 13.10(3)(b) of the Rules.
However, while paragraph 58 of the statement of claim purports to provide particulars of why COGD had or was likely to have the belief that Ms Rogerson might or would make the disclosures, thus bringing the bullying and harassing conduct which was alleged to have occurred prior to May 2019 within the ambit of detrimental action, the statement of claim does not allege that the perpetrators of the detrimental action had that knowledge or belief. As previously observed, the statement of claim is silent as to who suspended her in April 2019, and, for that matter, who was responsible for her constructive dismissal in March 2021.
Another concern I have about the statement of claim is about the alleged conflict of interest and its connection with the investigation and prosecution of ICF, which was said by Ms Rogerson to be the motivation for the improper conduct. Ms Rogerson has alleged (in the particulars under paragraph 42 of the statement of claim, which is not the place for a material fact of such significance) that her colleagues had a conflict of interest because ICF was a competitor of Community Chef, in which COGD had a shareholding and Mr Bennie was a director, and that COGD officers had falsified evidence and improperly prosecuted ICF in order to damage its business, for the commercial benefit of Community Chef. However, it is unclear from the statement of claim as to whether Ms Rogerson alleges that there was in fact a conspiracy within COGD to harm ICF for the commercial benefit of Community Chef, and she was subject to detrimental action because she threatened to expose that conspiracy.
While individuals within COGD have been identified in the statement of claim, the statement of claim makes no allegations as to whether the named individuals were acting pursuant to the instructions of others, including more senior personnel at COGD, or whether they were off on a frolic of their own, either by reason of their own antagonism towards ICF, or because they were doing what they thought would meet the approval of their superiors within COGD. It seems to me to be important to the question of whether Ms Rogerson had a reasonable belief as to the existence of improper conduct arising from the alleged conflict of interest for the Court and COGD to know whether Ms Rogerson alleges that there was a conspiracy to harm ICF, and the nature of and the parties to any such conspiracy. After all, COGD can only act through its officers and employees, and the mere existence of a potential conflict of interest does not of itself amount to improper conduct.
A further criticism levelled by COGD at the statement of claim concerned those paragraphs of the statement of claim where allegations were made concerning Dr Sutton and the closure orders. Ms Rogerson alleged that the closure orders were invalid, and that Dr Sutton held a media conference that had the potential to damage the reputation and client relationships of ICF.
COGD submitted that the allegations concerning Dr Sutton and the making of the closure orders were irrelevant to any claims Ms Rogerson had against COGD. When I first reviewed the statement of claim, I was inclined to agree. It was only during the course of the hearing of the application that it became apparent to me that Ms Rogerson relied upon these allegations to support her claim that she had a reasonable belief that COGD had engaged in improper conduct.
However, it seems to me that by her references to Dr Sutton and the validity of the closure orders in the statement of claim, Ms Rogerson has assumed the burden of having to prove more than she needs to prove in order to make good her s 47 claim. To elaborate, if she says that COGD employees deliberately falsified evidence in order to damage the commercial interests of ICF, why does it matter if the closure orders were lawful or unlawful, given that there is no dispute that the closure orders were in fact made? That seems to me to be someone else’s quarrel, and attempting to relitigate that issue in this proceeding is on its face contrary to the requirements of ss 19, 23 and 24 of the Civil Procedure Act 2010 (Vic), which provide that parties to a civil proceeding have overarching obligations to only take the steps necessary to resolve or determine the disputes in the proceeding, to narrow the issues in the dispute, and to ensure that the legal costs incurred by the parties to the proceeding are reasonable and proportionate to the issues in dispute.
Finally, there are some other relatively minor matters which should be addressed. First, given that this Court has no jurisdiction under the Fair Work Act, making an allegation to the effect that COGD’s conduct amounted to adverse action within the meaning of the Fair Work Act raises a false issue and adds nothing to the statement of claim. Secondly, the reference to ‘gaslighting’ in paragraph 14 of the statement of claim contains an unwarranted presumption that most readers of the statement of claim would be familiar with that particular popular culture reference, and as such, adds nothing to the statement of claim.
Finally, as for COGD’s submissions that certain of the allegations made in the statement of claim are scandalous, in that they appear to have the sole purpose of injuring or abusing particular employees of COGD, it seems to me that it is difficult to conclusively determine that aspect of COGD’s application until the statement of claim is put in order. I accept, at least in general terms, the submissions advanced on behalf of Ms Rogerson to the effect that whistleblower proceedings inevitably involve allegations which might be considered to be scandalous, and the claims made regarding the conduct of Ms Garlick, Ms Johnson and Mr Spicer are critical material facts supporting her s 47 claim. However, given that the purpose of making those allegations should and must become clearer in the next iteration of the statement of claim, I will reserve to COGD the right to renew any application to strike out part of Ms Rogerson’s pleading on the basis that it contains scandalous allegations, that is, allegations which are not necessary to be made by Ms Rogerson in order to make good her claims in this proceeding, but rather appear to have the sole purpose of injuring or abusing COGD and its officers and employees.
Conclusions and proper orders
In summary then, while the statement of claim does disclose a course of action, being the s 47 claim, there are some deficiencies in the pleading of the material facts necessary to make good the s 47 claim which need to be addressed. However, the main problem with the statement of claim is its organisation and coherence. While most of the paragraphs in the statement of claim are unobjectionable in themselves, the statement of claim as a whole does not present those allegations in a clear and coherent fashion. It is for that reason that I will strike out the statement of claim as a whole, and provide Ms Rogerson with the opportunity to start afresh, consistent with these reasons. Further, when preparing the new statement of claim, Ms Rogerson’s legal representatives should take on board the legitimate criticisms made by COGD regarding the overuse of cross-referencing in the original statement of claim.
I shall hear further from the parties as to the appropriate form of order to give effect to these reasons, and the question of costs.
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