Rogerson v City of Greater Dandenong (No 2)
[2023] VSC 326
•14 June 2023
| 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: | 31 May 2023 |
DATE OF JUDGMENT: | 14 June 2023 |
CASE MAY BE CITED AS: | Rogerson v City of Greater Dandenong (No 2) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 326 |
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PRACTICE AND PROCEDURE — Application to amend statement of claim in whistle-blower’s claim under s 47 of the Public Interest Disclosure Act 2012 (Vic)— Applicable principles — Whether material facts are pleaded to establish essential elements of cause of action – Failure to plead that the persons alleged to have taken detrimental action held the requisite knowledge or belief – Quinlan v ERM Power Ltd (2021) 7 QR 377 referred to and applied — Application to amend adjourned to allow plaintiff to replead.
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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 F Spencer | Maddocks |
HER HONOUR:
Introduction
These reasons concern a further application regarding the adequacy of the pleading of the statement of claim by the plaintiff in this proceeding. The plaintiff brings what is colloquially known as a “whistle-blower’s claim”. She seeks damages from her former employer, the City of Greater Dandenong, for loss and damage said to have been suffered by her as a consequence of reprisal action she says she was subjected to by the defendant and its employees.
The plaintiff’s claim arises out of what she says was improper and/or corrupt conduct of the officers of the defendant in the course of their investigation into a suspected food contamination incident at the premises of I-Cook Foods Pty Ltd (‘ICF’), in January and February 2019 (‘investigation’). As a consequence of what the plaintiff says was a flawed investigation carried out for improper purposes, the Chief Health Officer of the State of Victoria shut down the operations of ICF, and the defendant prosecuted ICF for various alleged offences under the Food Safety Act 1984 (Vic), although all charges were subsequently withdrawn.
In May and June 2019, the plaintiff made written complaints to the Independent Broad Based Anti Corruption Commission (‘IBAC’) and the Ombudsman about the conduct of the defendant and certain officers of the defendant during the course of the investigation (‘protected disclosures’). She says that, as a consequence, she was subjected to detrimental action by the defendant and some of its employees, including bullying and harassment, demotion, and constructive dismissal from her employment.
The legislative framework
The liability of public authorities to whistle-blowers and suspected whistle-blowers who suffer detrimental action as a consequence of bringing to light actual or suspected corrupt conduct is governed by the Public Interest Disclosures Act 2012 (Vic) (‘Act’). The relevant provisions of the Act follow.
Section 47(1) of the Act provides as follows:
A person who take 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.
Section 45(1) of the Act provides as follows:
A person must not take detrimental action against another person in reprisal for a public interest disclosure.
Penalty: 240 penalty units[1] or 2 years imprisonment or both.
[1]Equivalent to $46,154.40.
Section 9(1) of the 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.
Section 43(1) of the 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.
Sections 44(1) and (2) of the Act provides as follows:
(1) Nothing in this Part is intended to prevent a manager from taking management action in relation to an employee who has made a public interest disclosure.
(2) A manager may take management action that is detrimental action in relation to an employee who has made a public interest disclosure only if the fact that the employee has made the public interest disclosure is not a reason for the manager taking the action.
Section 48 of the Act provides as follows:
Vicarious liability of public body
(1) If a person in the course of employment with, or while acting as an agent of, a public body takes detrimental action against another person in reprisal for a public interest disclosure—
(a) the public body and the employee or agent (as the case may be) are jointly and severally civilly liable for the detrimental action; and
(b) a proceeding under section 47 may be taken against either or both.
(2) It is a defence to a proceeding against a public body under section 47 if the public body proves, on the balance of probabilities, that it took reasonable precautions to prevent the employee or agent from taking detrimental action against the other person in reprisal for the public interest disclosure.
For present purposes, there is no dispute that the defendant is a public body, and that the plaintiff made the protected disclosures.
The issues in the application
The factual background to the plaintiff’s claims in this proceeding were traversed in more detail in reasons I published in October 2022 as a consequence of a successful application by the defendant to strike out the original statement of claim[2], and I shall not repeat that account here. In the first application, the defendant applied to strike out the statement of claim on the basis that the statement of claim failed to disclose a cause of action, was embarrassing (in the sense that the defendant could not understand the case it had to meet at trial) and made allegations that were scandalous.
[2]Rogerson v City of Greater Dandenong [2022] VSC 612 (‘first reasons’). See also I-Cook Foods Pty Ltd v State of Victoria (Department of Health and Human Services) & Anor [2022] VSC 587 and I-Cook Foods Pty Ltd v State of Victoria & Anor [2022] VSC 649.
In the first reasons, I found that while the statement of claim did, upon close examination, disclose a cause of action, the statement of claim failed to properly plead all of the material facts necessary to make good a claim under s 47 of the Act. Further, I held that the statement of claim lacked coherence and was confusing. The following extract of the first reasons explained some of the matters that the plaintiff needed to address when pleading her claim:
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. It 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. 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.
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.[3]
[3]First reasons [79]-[83].
Further, and relevantly for the purposes of the current application, I made the following observations regarding what I described as the causation issue:
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.[4]
[4]Ibid [75].
Following the delivery of the first reasons, I made orders striking out the statement of claim, and granting the plaintiff leave to replead consistently with the first reasons and the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’). I also noted that the defendant’s right to apply to strike out any part of any amended statement of claim on the basis that the allegations made in it were scandalous should be reserved.
The plaintiff filed an amended statement of claim on 18 November 2022. This document did not meet with the defendant’s approval, and correspondence between the solicitors followed. On 1 December 2022, the defendant served a request for further and better particulars, to which the plaintiff responded on 15 December 2022.
As a consequence of this correspondence, the plaintiff agreed to not rely upon the amended statement of claim, and the parties agreed upon a timetable for the plaintiff to serve a proposed further amended statement of claim (‘proposed pleading’). This was done on 7 February 2023. The defendant refused to consent to the filing and service of the proposed pleading, and on 8 March 2023, the plaintiff filed a summons seeking leave to file and serve the proposed pleading. These reasons concern the question of whether the plaintiff should be granted leave to file and serve the proposed pleading.
During the course of recent months, the parties have exchanged written submissions about the adequacy of the proposed pleading. I have reviewed those submissions, but in the interests of expedition I do not propose to canvass their contents in great detail, save where it is necessary for the purposes of determining the current application.
Essentially, the defendant’s complaints about the proposed pleading can be summarised as follows:
(a) the proposed pleading fails to plead a necessary element of the plaintiff’s claim that the defendant is vicariously liable for the conduct of its employees, being that the officers identified in the proposed pleading were acting in the course of their employment when taking prohibited detrimental action against the plaintiff;
(b) the plaintiff has failed to plead the necessary facts needed to address the causation issue; and
(c) the plaintiff continues to make allegations of conduct akin to fraud, dishonesty, and misfeasance in public office without the degree of specificity required when making allegations of such a serious nature.
In relation to (a) above, I agree that it is necessary for the plaintiff to plead that, in relation to the officers of the defendant who are said to have taken detrimental action against the plaintiff, those officers were acting in the course of their employment when undertaking that detrimental action. This is necessary, because, if the officers concerned, or some of them, are ultimately found to have engaged in prohibited detrimental action, then the question of whether they had done so in the course of their employment, or had gone off on a frolic of their own, may well be a live issue in the proceeding.
I also agree, however, that this deficiency in the proposed pleading is easily rectified, perhaps by adding a paragraph close to the start of the proposed pleading identifying the personnel who the plaintiff says have engaged in detrimental action, and alleging that they were doing so in the course of their employment. The inclusion of a paragraph of this nature would also have the added benefit of clearly distinguishing between the personnel of the defendant who were said to have taken the detrimental action (which is of course the foundation of any liability of the defendant under the Act) and those personnel who are referred to in the proposed pleading only for the purpose of establishing that the plaintiff had a reasonable suspicion of improper conduct. At present, that distinction is not clear, but it is an important distinction. That there may be some overlap between the two groups does not relieve the plaintiff of the requirement to identify the personnel who were said to have taken the prohibited detrimental action.
As for the causation issue, the defendant submitted as follows:
What the PASOC still does not do, and what new paragraphs [14] and [46] do not achieve, is to address the second essential element of a s 47 cause of action. That is, to coherently plead:
(a)which employees of the defendant allegedly took (or threatened to take) what detrimental action against the plaintiff (and how and when);
(b)what that detrimental action was allegedly in reprisal for (what belief was held by the person relevant to the matters that must be established in s 43(1)(a) of the PID Act); and
(c)what the employee who allegedly took the detrimental action believed that the plaintiff either had disclosed or intended to disclose (and to whom).
Insofar as the PASOC appears to also seek to rely upon s 43(1)(b) of the PID Act, it does not coherently plead:
(a)which employees of the defendant allegedly permitted other (and which) employee/s of the defendant to take or to threaten to take detrimental action against the plaintiff (as opposed to directly taking or threatening to take detrimental action themselves); and
(b)what belief was held by the ‘permitting’ employees relevant to the matters which must be established in s 43(1)(a) of the PID Act.
Further, in relation to the degree of specificity and precision required where pleading allegations of a serious nature, and where an element of the cause of action is the knowledge or belief of the defendant, the defendant submitted as follows:
Nor do the provisions of the PIDA relieve the plaintiff of the obligation to prove that an officer of the public body (sufficiently identified by name and position) took detrimental action (inclusively defined in s 3) in reprisal for a public interest disclosure made or anticipated. As AsJ Daly held at [82] of her October 2022 judgment, it is necessary to establish that the individual who took or permitted the detrimental action did so with the requisite knowledge or belief (of the disclosure, either made or anticipated) as opposed to for some other reason, unrelated to the disclosure or anticipated disclosure.
The plaintiff may seek to establish these matters by inference, however, because the allegations are in the nature of misfeasance, and amount to criminal conduct penalised by two years imprisonment or 240 penalty units (s 45(1) of the PIDA), a degree of specificity is demanded. The facts, matters and circumstances which will be relied upon at trial to justify the inference that an individual took or permitted detrimental action because of the requisite knowledge and belief should be distinctly pleaded. It is not sufficient to plead inferences which are consistent with an improper purpose, but which might equally be consistent with an innocent purpose.
The plaintiff’s PASOC still does not sufficiently identify which Council officers took (or permitted) detrimental action against the plaintiff, or plead information capable of providing a probative basis for alleging that any identified officers took or permitted the detrimental action in reprisal because, or in the belief that, the plaintiff had made or intended to make a public interest disclosure. It is no answer that something may be disclosed in discovery or that the requisite states of mind are within the knowledge of the defendant. Specificity about the alleged state of mind of each officer who is alleged to have acted improperly is required and a sufficient factual basis for each such allegation, even if it is sought to be established by inference.
The defendant referred to, by way of example, allegations the plaintiff made about phone calls made by Ms Johnson to the plaintiff in mid February 2019, the contents of which were said by the plaintiff to be distressing. The making of the phone calls was said to amount to bullying and harassment, but it is not pleaded that, at the time Ms Johnson made these phone calls, she knew or believed that the plaintiff had made or might make the protected disclosures.
In response, the plaintiff submitted that it is very difficult for a person in the position of the plaintiff to plead allegations concerning the knowledge and belief of officers of the defendant with the degree of specificity demanded by the defendant. She submitted that the Court should be cautious in applying over-zealous standards of pleading upon whistle-blowers which might have the consequence of stifling meritorious claims, given that the Act is remedial legislation. Further, detrimental action taken in retaliation against whistle-blowers is usually taken covertly, and is rarely ‘signposted’. Proving the motive of those engaged in retaliatory conduct usually involves relying upon circumstantial evidence or inferences. The high bar imposed upon plaintiffs making allegations of misfeasance in public office should not be imposed upon whistle-blowers, and, when determining interlocutory disputes, regard should be had to the fact that this is a developing area of the law.
Discussion
I largely accept the submissions of the defendant regarding the adequacy of the proposed pleading.
I do accept, as far as it goes, that a party in the position of the plaintiff should not be unduly deterred or obstructed from seeking relief under what is plainly remedial legislation by being forced to engage in protracted interlocutory disputation. After all, s 1 of the Act provides that the purpose of the Act is to, among other things, ‘to encourage and facilitate disclosure of improper conduct…and detrimental action taken in reprisal’ for public interest disclosures, and to provide protection and redress for people who make public interest disclosures, and suffer detrimental action as a consequence.
I also accept that the nature and purpose of the Act may affect the construction of particular provisions of the Act. By way of example, while it is not necessary for me to resolve this question now, it may well be that the principles governing the pleading of an allegation that an official has engaged in conduct that amounts to misfeasance in public office do not directly translate to cases where someone is alleged to have taken detrimental action in reprisal for the making of a public interest disclosure. For example, in the case of misfeasance in public office, the authorities provide that a pleading that relies upon particulars or facts that are consistent with an honest discharge of the public officer’s function should not be permitted to proceed.
I have some doubts that such a rigorous standard applies in circumstances where section 44(2) of the Act provides that a manager may take management action that is detrimental action in relation to an employee who has made a public interest disclosure where the making of the public interest disclosure is not a reason for the manager taking the action (as opposed to the reason, or a substantial reason, as it was in the past). That is, the fact that liability for detrimental action may be established where the making of the public interest disclosure is only one of multiple reasons for taking the detrimental action sits uncomfortably the principles governing the pleading of claims for misfeasance in public office, in particular, the prohibition upon relying upon conduct which is consistent with an honest discharge of the function of a public officer. If a defendant to a whistle-blower’s claim relies upon the defence in s 44 of the Act on the grounds that the alleged detrimental action is reasonable management action, and there are both valid and invalid reasons for taking that action, the defendant will not be successful in escaping liability under the Act.
The question of whether the principles applicable to the pleading of allegations of misfeasance in public office apply in full force to allegations of improper conduct, or allegations that a whistle-blower had been subjected to detrimental action in reprisal for making a public interest disclosure arose in the context of my reference in the first reasons to an extract of the reasons of Baker JR in an application in the ICF litigation.[5]
[5][2022] VSC 587 [123], upheld on appeal in [2022] VSC 649.
The relevant extract of Baker JR’s reasons 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.[6]
[6][2022] VSC 587, quoted in the first reasons at [65].
In the written submissions filed by the plaintiff in support of the proposed pleading, the plaintiff took issue with my reference to this extract from Baker JR’s reasons in the first reasons. As stated above, I accept that there is scope for debate about whether the specific requirements for the pleading of actions for misfeasance in public office are directly transferable to claims under section 47 of the Act. However, that debate cannot be resolved in the current application, given the lack of clarity in the proposed pleading regarding the alleged detrimental action, and the causation issue.
Further, it seems to me to be tolerably clear from the first reasons that my reference to this extract should be read as supporting my observation that:
…given the seriousness of the allegations made by Ms Rogerson against CODG 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’,[7]
and should not be taken as expressing a concluded view on the application of the specific principles governing the pleading of allegations of misfeasance in public office to proceedings under s 47 of the Act.
[7]First reasons [65].
While in the first reasons my observations above were referrable to the allegations made by the plaintiff that the officers of the defendant had engaged in improper and/or corrupt conduct, I agree that they also apply to the plaintiff’s allegations that certain officers of the defendant had taken detrimental action against the plaintiff in reprisal for the plaintiff making public interest disclosures. After all, taking detrimental action of that kind is a criminal offence. Further, rule 13.10(3)(b) of the Rules provides that:
every pleading shall contain particulars of any...’disorder or disability of the mind, malice, fraudulent intention or other condition of the mind, including knowledge or notice, which is alleged.’
Further, the fact that the Act is remedial in nature, and aspires to address an important public policy issue, does not absolve the plaintiff of the requirement to comply with the rules of pleading, or to deprive the defendant and its officers of their right to procedural fairness. After all, many public officers and public bodies might be considered to be ‘well-resourced’, but I doubt there is any authority for the proposition that their entitlements to natural justice fall short of those of other litigants as a consequence.
That plaintiffs pursuing whistle-blower claims are not held to a different, lower standard than plaintiffs in other civil proceedings is evident from the recent decision of Bowskill J of the Supreme Court of Queensland in Quinlan v ERM Power Ltd & Ors[8], a decision relied upon by the plaintiff in this application, which concerned the adequacy of the pleading of a whistle-blower’s claim under the Corporations Act 2001 (Cth). Her Honour’s observations are quite pertinent to the issues in the current application, and as such are worth quoting at some length, as follows (omitting citations):
[8](2021) 7 QR 377.
The next basis for complaint, which also relates to these paragraphs, raises the question of what is required for a pleading of “motive, intention or other condition of mind, including knowledge”, having regard to rr 150(1)(k), 150(2) and 157(c) UCPR. Taking para 219 as an example again, it pleads that the “first vindictive stratagem”, inter alia:
(a)was actuated by the fact that Mr St Baker had become aware the plaintiff had made some or all of the Protected Disclosures and “was so incensed by” his awareness, that he was “unable to deal with [the plaintiff] in a civil manner”; and
(b) was intended to cause detriment to the plaintiff.
The same (or substantially the same) formula appears in the subsequent paragraphs dealing with the second to twenty-third “vindictive stratagems” (paras 222, 236, 238, 243, 247, 250, 253, 255, 257, 260, 263, 268, 271, 273, 275, 278, 280, 284, 288, 294, 297, 300, 307 and 316). In each case, it is a pleading of knowledge (awareness), motive and intention. The defendants’ complaint is that no material facts are pleaded in support of the allegations of state of mind (awareness), motive or intent in respect of each natural person defendant; and to the extent that state of mind, motive or intent may be said to be inferred from other facts, either those facts are not specifically pleaded, or if they are pleaded elsewhere in the statement of claim, the fact that they are relied upon as the basis for the inference is not specifically identified.
….
It is not sufficient for a plaintiff simply to plead facts somewhere in the statement of claim, later to plead in a conclusory way that a party(ies) had a particular motive, intention or other state of mind, and contend that the other party(ies) is or are on notice, because of the general pleading, of what is to be alleged against it or them. It is incumbent on the plaintiff to be specific about the basis upon which they allege the motive, intent or other state of mind was held by each particular defendant. Contrary to the plaintiff’s submissions, what rr 150(1)(k) and 150(2) UCPR require is the “explicit linking” of facts to inferences; the drawing of an inference is not a matter of law for the Court, but a matter of fact; and a party is required to “spell out in the statement of claim” the precise manner in which underlying facts are to be deployed so as to establish a matter alleged to be available as a matter of inference from those facts. That is the point of r 150(2). It is not appropriate to plead a whole lot of facts, and leave it for the other parties to guess which are relied upon to support the pleaded inference, and for the Court ultimately to “reach the correct decision”, irrespective of the parties’ arguments: “[i]t is for the party making the allegations … to identify the case which it seeks to make and to do that clearly and distinctly”. This is all the more essential where the allegations are of fraudulent or serious misconduct, in respect of which more precision is required than in other cases.
It is no answer to the defendants’ complaints in this regard to say, as the plaintiff does, that the failure to explicitly plead the underlying facts relied upon to support the inference of motive, intention or other state of mind does not matter because:
(a)the natural person defendants intend to claim the privilege against self-incrimination – on the contrary, and as discussed further below, this underscores the need for specificity; and
(b)the defendants are inherently aware whether they possessed the alleged state of mind or not – that proposition only has to be stated for its inaccuracy to be manifest. The pleading rules are designed to reflect the basic requirements of procedural fairness. If you make an allegation against a person, you are required to coherently articulate it, so that they are in a position to respond to it. [9]
[9]Ibid [62]–[63], [65]–[66].
There is no material difference between the provisions of the Corporations Act 2001 (Cth) with which her Honour was concerned and the relevant provisions of the Act.
Accordingly, the plaintiff’s submissions to the effect that the requirement that the plaintiff plead, and ultimately establish, the requisite knowledge and/or belief on the part of the person who took detrimental action falls away, or is at least relaxed, by reason of the Act being remedial legislation is not consistent with the authorities. The plaintiff is correct to say that the amendments to the Act in 2019 were targeted at making it easier for whistle-blowers to prove that any detrimental action taken against them was in reprisal for public interest disclosures they had made, or might make. The amendment to s 44(2) of the Act to remove the requirement that the making of a public interest disclosure be a substantial reason for taking management action that is also detrimental action, as opposed to simply a reason, should make it easier for plaintiffs bringing claims under the Act. But no change was made to the requirement in s 43(1) of the Act that a plaintiff establish that any actual or threatened detrimental action was taken “because, or in the belief that” the plaintiff has made or intends to make a public interest disclosure.
The plaintiff’s submission to the effect that all the plaintiff has to establish is that detrimental action in connection with the public interest disclosure is inconsistent with the authorities and the language of the relevant provisions of the Act. Indeed, a synonym for “reprisal” is “retaliation”, which connotes more than just a connection. As stated by Andrew SC DCJ in Gardem v Edmistone[10]:
The expression “in the belief that” appears in WPA s 41(1). It has been determined in respect of a statute with sufficiently similar wording that there must be a causal connection between the belief that a person made a disclosure and the causing (or attempting to cause) a detriment and that it is not sufficient for a plaintiff to prove that the defendant caused detriment to Mr Gardem while the defendant held the belief that Mr Gardem had made PID. The Queensland Court of Appeal, when considering WPA s 41(1), observed that “the section seems to require that the offender’s actions be motivated by some state of knowledge or belief that the target person has acted in a certain way.” It follows from WPA s 41(1) that even if Mr Gardem proves that after his making a PID the defendant caused a detriment to Mr Gardem, Mr Gardem might fail to prove the tort. Mr Gardem must also provide that the defendant:
1. Was motivated by a belief that Mr Gardem made the PID; or
2. Caused the detriment because Mr Gardem made the PID.[11]
[10][2018] QDC 118.
[11]Ibid [167].
Having regard to the considerations outlined above, I now turn to the proposed pleading, and the defendant’s complaints about the proposed pleading.
Paragraphs 1 to 7 of the proposed pleading plead largely factual matters, and uncontroversial matters such as the plaintiff’s duties when employed by the defendant. In paragraph 2.6 of the proposed pleading, the plaintiff alleged that the defendant employed seven named public officers (which did not include all of the officers of the defendant referred to in the proposed pleading), and at paragraph 3 of the proposed pleading the plaintiff alleged that:
at all material times the employees of the Defendant referred to at [2.6] were acting with the authority or implied authority of the Defendant.
Paragraphs 8 to 13 of the proposed pleading concern the investigation, and are uncontroversial for present purposes. Paragraph 13 of the proposed pleading provides as follows:
Following the Food Sampling and the Swab Sampling the Plaintiff formed a reasonable basis to suspect constituted individually, or together, corrupt conduct as defined by s.4(1) of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) (IBBCC Act).
Paragraph 14 of the proposed pleading provides as follows:
Suspecting that the Plaintiff intended to make a public interest disclosure and then subsequent to the Plaintiff’s public interest disclosures to IBAC and the Ombudsman, IBAC referred to at [15] and [17] herein, the Defendant:
a. took detrimental action against the Plaintiff;
b. permitted within the meaning of s.43(1)(b) its officers to take detriment action against the Plaintiff contrary to s.45 of the PIDA by
(i) harassing and bullying;
(ii) demoting;
(iii) psychiatrically injuring;
(iv) constructively dismissing; and
(v) refusing to re-employ or rehabilitate to employment;
the Plaintiff.
Particulars
A: As to Defendant’s suspicion or fear of the Plaintiff’s intention to disclose, from around mid-February 2019 the officers of the Defendant who suspected the plaintiff would make a protected complaint included Jody Bosman, Director City Planning, Design and Amenity and responsible for Building and Compliance Services; Regulatory Services, John Bennie (CEO of COGD) Greg Spicer, Leanne Johnson Ros Blades (Mayor).
B: As to post disclosure knowledge of the defendant, Senior management of the Defendant knew of the disclosure dated 21 May 2019 by virtue of Mike Jaench stating in writing to the Plaintiff “...the council is aware” of the disclosure.
C: As to harassment and bullying: the Plaintiff refers to the conduct of Leanne Johnson and Greg Spicer.
D: As to demotion on or about 2 April 2019 (wrongly denoting the year 2018) the Defendant by letter signed by Jody Bosman suspended the Plaintiff from conducting “field work” in connection with her duties and functions under the Food Act being her conventional mode of employment.
E: As to psychological injury, the Plaintiff was diagnosed with severe depression and anxiety from early March by her GP Dr Samuel Shapiro and otherwise refers to the loss and damage pleaded herein.
F: Constructive dismissal occurred during the period May to September 2019 when the Defendant wrote to the Plaintiff indicating that she was abandoning her employment, had exhausted her leave and demanding the return of her work vehicle. The letters were 10, July, 19 August and 20 September, 2019. The refusal to rehabilitate to employment the responsibility for rehabilitation of the Plaintiff was held by the Human Resources manager at first instance, Nicole Josef and by Anthony Camilo head of Human Resources at COGD and a lesser extent the Plaintiff’s team leader, Leanne Johnson. The Plaintiff was never invited back to return to work. A genuine invitation would have included an apology and a staggered program that accommodated her condition. Further during May 2019, the Public Health Coordinator of the Defendant Leanne Johnson, verbally communicated to the Plaintiff’s close colleagues, including six other Environmental Health Officers, Terry Martin, Suzie Cockbill, Eva Grezlick, Rebecca Jones, Gareth Littlehayes and Elizabeth Garlick and Administrative Assistant Eliza Larken at the Work Premises that, by reason of the Plaintiff’s disclosure to IBAC, they were not to speak to the Plaintiff, making re-employment impossible without alternative placement.
G: The Plaintiff’s condition had been communicated to Leanne Johnson who, by reason of it, allowed the Plaintiff “special leave” on approximately occasions during the period 3 March 2019 to 15 April 2019. These grants of leave would enable her to leave for home 2 hours early or in the morning. These grants of leave were given on accepted grounds of stress verbally by Ms Johnson.
Paragraph 14 of the proposed pleading seems out of place, as a matter of logic, because it precedes those paragraphs of the proposed pleading which identify the conduct which was said to give rise to the plaintiff’s reasonable suspicion of corrupt conduct. There are also other problems with paragraph 14 (and paragraph 46) of the proposed pleading, which are discussed later in these reasons.
Paragraphs 15 to 18 of the proposed pleading concern the protected disclosures made by the plaintiff to IBAC (on 9 May 2021) and the Ombudsman (on 4 June 2019) , and are uncontroversial for present purposes.
Paragraphs 20 to 44 of the proposed pleading follow the heading ‘Reasonably suspected corrupt conduct’, and make allegations regarding the conduct of various officers of the defendant in the period from February 2019 to April 2019 under the following sub-headings:
(a) “Attempted falsification of statements intended to be used in a Food Act prosecution”;
(b) “Editing of photographic and other evidentiary footage”;
(c) “Wrongful supposition that the Knox patient had been poisoned and died by ingestion of a ham or corned beef sandwich produced at ICF food premises”;
(d) “Excessive prosecution”; and
(e) “Overall corrupt conduct”.
To pause here, save for the failure of the plaintiff to plead that the officers referred to at paragraph 2.6 of the proposed pleading were acting in the course of their employment with the defendant, and the positioning and lack of precision in paragraph 14 of the proposed pleading, there is nothing in the proposed pleading up to this point which would cause me any particular concerns. Ultimately, whether the facts pleaded in paragraphs 16 through to 44 of the proposed pleading are capable of giving rise to a reasonable suspicion of corrupt conduct is a matter for evidence at trial.[12]
[12]Subject to the rights reserved to the defendant in my orders of 14 October 2022 to contend that particular allegations are scandalous, in the legal sense. However, it appears that the defendant is no longer pressing this issue.
The focus of the defendant’s opposition to the plaintiff having leave to file and serve the proposed pleading is what it says is the failure of the proposed pleading to address the causation issue, that is, the allegation that the defendant and/or its officers took detrimental action against the plaintiff in reprisal for the protected disclosures, or for anticipated protected disclosures.
Paragraph 45 of the proposed pleading is not the subject of the defendant’s attack, but sets the scene for what follows:
By reason of the matters pleaded at [40] – [44] the Plaintiff by early March began to reasonably suspect and or believe that the Defendant was engaging in conduct:-
45.1 directed at incriminating ICF in order to prosecute it without proper and or sufficient evidence;
45.2 directed at maliciously and or recklessly securing a conviction or finding of guilt against ICF having falsified, fabricated, invented and or illegally planted evidence;
45.3 directed at perverting or attempting to pervert the course of justice and or the due administration of justice;
45.4by reason of the matters set out above engaging in corrupt conduct as defined by the IBBCC Act namely:-
(i) corrupt conduct within the meaning of sub-sections 4(1)(a) to (d) of the IBBCC Act;
(ii) specified conduct within the meaning of sub-section 4(1)(b) of the IBBCC Act,
a. constituting a relevant offence;
b. being reasonable grounds for dismissing the officer/s involved, and
(iii) specified conduct within the meaning sub-sections 4(2) (a) – (d) of the IBBCC Act (collectively, Corrupt conduct).
Paragraph 46 of the proposed pleading (along with paragraph 14) concerns the alleged detrimental action. Paragraph 46 of the proposed pleading provides as follows:
46. Suspecting that the Plaintiff intended to make a public interest disclosure and then subsequent to the Plaintiff’s public interest disclosures to the Ombudsman and IBAC referred to at [15] – [19] herein, the Defendant by various of its officers.
46.1 took detrimental action against the Plaintiff;
46.2 permitted within the meaning of s.43(1)(b) its officers to take detriment [sic] action against the Plaintiff contrary to s.45 of the PIDA by
i. harassing and bullying; and
ii. demoting; and
iii. psychiatrically injuring; and
iv. constructively dismissing; and
v. refusing to re-employ or rehabilitate to employment;
the Plaintiff.
Particulars
A: As to harassing and bullying:
i. From 18 February 2019 over a period of 5 days the Plaintiff received phone calls from Leanne Johnson wherein Ms Johnson made distressing and statements the substance of which was that the food business at ICF Food Premises had been allowed by the Plaintiff to conduct its business in serious contravention of the Food Act and or the Food Code resulting in the cause of death of the Knox Patient. These included statements that Ms Johnson had had many high-level meetings with senior officers of the Defendant including its CEO John Bennie, Mayor Ros Blades and Jody Bosman about her performance relating to the death.
B: The statements in circumstances were disturbing, distressing and frightening to the Plaintiff and made her fear for the security of her job and career where:
i. she received some of them when still in recovery from surgery;
ii. they contained no particulars of how the Plaintiff allegedly failed to secure compliance by ICF with the Food Act or Food Code or in the performance of her General duties;
iii. they constituted an attempt to put the Plaintiff in fear with regard to the legitimate performance of her duties;
iv. they constituted wrongful bullying and harassment; contrary to the:-
a. Prevention of Bullying & Violence in the Workplace policy of the Defendant; and
b. Workplace Complaints Resolution Policy and Procedure; and Greater Dandenong City Council Enterprise Bargaining Agreement 2009.
C: From 6 March 2019, Leanne Johnson repeatedly and contrary to the Code of Conduct – Staff (a guide to conduct for City of Greater Dandenong employees 9th Edition) initiated private discussions at the Work Premises with the Plaintiff suddenly and without notice or agenda (together the “Meetings”) in which Ms Johnson strongly insinuated that deficiencies in Plaintiff’s enforcement of the Food Act at ICF prior to and on 1 February 2019 had contributed to the death of the Knox Patient. The Meetings were held in dates, including on 6, 13 another on or around 16 and 29 March 2019 and finally 16 April 2019 and approximately five others in between those dates. The 29 March 2019 had no agenda.
D:In a meeting held 13 March 2019 attended by Gareth Littlehayes, Elizabeth Garlick (Officer Garlick), Leanne Johnson said nothing until Gareth Littlehayes left after which she spoke in an accusatory, intimidatory and hostile fashion about the performance of her General duties at ICF. The Plaintiff will give evidence at trial of the physical stances, volume, tone and general manner of the communications.
E:At a further meeting on or around 16 March 2019, Leanne Johnson met the Plaintiff in a private room at the Work Premises and over a period of 15 minutes repeated the accusations of deficient performance of her General duties lacked specifics as to any sub-standard work performance, shouted at her and made her fearful.
F:As to post disclosure knowledge of the defendant, Senior management of the Defendant knew of the disclosure to IBAC dated 21 May, 2019 by virtue of Mike Jaench stating in writing to the Plaintiff “..the council is aware” of the disclosure.
G:As to demotion on or about 2 April, 2019 the Defendant by letter signed by Jody Bosman suspended the Plaintiff from conducting “field work” in connection with her duties and functions under the Food Act being her conventional mode of employment.
H:As to psychological injury, the Plaintiff was diagnosed with severe depression, anxiety and post traumatic syndrome disease from early March 2019 by her GP Dr Samuel Shapiro and otherwise refers to the loss and damage pleaded below.
I.Constructive dismissal occurred during the period May 2019 to September 2019 when the Defendant wrote to the Plaintiff indicating she, had exhausted her paid leave demanding the return of her work vehicle and asserting that she was abandoning her employment. The letters were 10 July, 19 August and 20 September 2019 and signed by Jody Bosman and Nicol Josef. The responsibility for rehabilitation of the Plaintiff was held by the Human Resources manager at first instance, Nicole Josef and by Anthony Camilo head of Human Resources at COGD and a lesser extent the Plaintiff’s team leader, Leanne Johnson. The Plaintiff was never invited back to return to work. A genuine invitation would have included an apology and a staggered program that accommodated her condition. Further during May 2019 Leanne Johnson communicated verbally in the main conference room to the Plaintiff’s close colleagues, including six other environmental health officers Terry Martin, Suzie Cockbill, Eva Grezlick, Rebecca Jones, Gareth Littlehayes and Elizabeth Garlick and Administrative Assistant Eliza Larken that, by reason of the Plaintiff’s disclosure to IBAC, they were not to speak the Plaintiff making re-employment impossible without alternative placement at the Defendant.
J:The Plaintiff’s psychiatric condition had been communicated to Leanne Johnson who, by reason of it, allowed the Plaintiff “special leave” on approximately occasions during the period 3 March 2019 to 15 April 2019. These grants of leave would enable her to leave for home 2 hours early or in the morning. These grants of leave were given on accepted grounds of stress verbally by Ms Johnson.
The balance of the proposed pleading concerns the loss and damage said to have been caused to the plaintiff by the conduct of the defendant, which was said to have included loss of income, loss of superannuation contributions, psychiatric injury, and loss of reputation. Further, the plaintiff claims exemplary damages pursuant to section 47(3) of the Act.
As indicated earlier in these reasons, I largely agree with the submissions of the defendant to the effect that the proposed pleading does not say why it is said that officers of the defendant took that detrimental action in reprisal because, or in the belief that, the plaintiff had made or intended to make a public interest disclosure. While some details are given of who took what detrimental action against the plaintiff, no allegations are made that they did so with the requisite knowledge or belief, save in very general terms.
The causation issue is critical to the plaintiff’s success in this proceeding. Again, it is not enough for the plaintiff to show that she has made protected disclosures, and that she has suffered detrimental action at the hands of the defendant or its officers. The use of the term ‘in reprisal for’ in ss 47 and 43 of the Act means that the plaintiff must establish more than just a temporal connection between the protected disclosures or anticipated protected disclosures and the detrimental action, although I accept that the existence of a temporal connection may well be a relevant fact from which one could draw an inference that the detrimental action was taken in reprisal for a protected disclosure. However, I doubt that the mere existence of a temporal connection between the disclosure or anticipated disclosure and detrimental action would be sufficient to establish the necessary causal connection, especially if the alleged detrimental action could be otherwise characterised as reasonable management action.
The difficulties with the current manner in which paragraphs 14 and 46 of the proposed pleading is highlighted by the allegations made against Ms Leanne Johnson, the plaintiff’s immediate superior. The plaintiff makes a number of serious allegations against Ms Johnson throughout the proposed pleading. However, focussing on the alleged detrimental action, paragraph 14 of the proposed pleading states that from around mid February 2019 Ms Johnson, among others, suspected that the plaintiff would make a protected disclosure, and refers to Ms Johnson, along with another officer, as harassing and bullying the plaintiff. Further allegations and particulars of the alleged detrimental action carried out by Ms Johnson are contained in paragraph 46 of the proposed pleading, but the only reference to the knowledge of the defendant is contained in particular F to that paragraph which refers to the knowledge of ‘senior management’ of the defendant, which may or may not include Ms Johnson. Paragraph 46 of the proposed pleading is otherwise silent as to the facts upon which the plaintiff relies upon to plead the conclusion that as from mid February 2019, Ms Johnson suspected or feared that the plaintiff would make a protected disclosure, noting that it is the plaintiff’s own case that it was not until early March 2019 that she herself began to reasonably suspect and/or believe that the defendant was engaging in corrupt or improper conduct connected with the investigation.
There may be an explanation as to why the plaintiff now holds the view that Ms Johnson believed or suspected that the plaintiff might make a protected disclosure at a time before the plaintiff herself had any suspicions concerning the conduct of the defendant, or any of its officers, but that explanation is not be found in the proposed pleading.
It is no answer to the defendant’s criticisms of the proposed pleading that the information as to what the officers of the defendant knew or believed at any particular time is in the hands of the defendants, not the plaintiff. The plaintiff was in the thick of the investigation, and she clearly holds strong views about the investigation and its aftermath. Regardless of the rights and wrongs of what occurred, these were clearly momentous events in the plaintiff’s life, such that her recollection of what she heard, saw, and felt during the relevant period is unlikely to have faded fast.
Indeed, in order to bring this claim in the first place, she must have instructed her lawyers (or have been in a position to instruct her lawyers) about what took place or what she was told, which led her to believe that the detrimental action she was subjected to was as a consequence of the disclosures she had made, or intended to make, about the defendant’s conduct of the investigation. The only thing her lawyers are required to do is to present that information in a coherent form which addresses the necessary elements of a claim under s 47 of the Act. The defendant has not suggested that they should not be given a further opportunity to do so.
Accordingly, I will adjourn the hearing of the plaintiff’s application to file and serve the proposed pleading, and direct that the plaintiff file and serve a further proposed pleading. For the avoidance of doubt, the further proposed pleading must:
(a) plead that any officer of the defendant who is alleged to have taken detrimental action against the plaintiff did so in the course of their employment; and
(b) properly plead the facts relied upon to support the allegation that those officers took that action in reprisal for protected disclosures that they believed the plaintiff had made, or suspected she might make, in a manner which complies with r 13.10(3)(b) of the Rules.
As indicated earlier in these reasons, I doubt that much is required to address the requirement in (a) above. As for the causation issue, it seems to me that the plaintiff must dispense with paragraphs 14 and 46 of the proposed pleading, and replace them with a new section which:
(a) identifies each person who is alleged to have taken detrimental action against the plaintiff, and specify the detrimental action taken, and when it was taken; and
(b) identifies the facts, matters and circumstances the plaintiff relies upon to contend that each person identified above knew or believed, at the time they took the detrimental action, that the plaintiff had made or intended to make a protected disclosure, and that this belief or suspicion was a reason why that person took the detrimental action, or, put another way, why it was said that the detrimental action was in reprisal for the actual or intended protected disclosure.
The plaintiff should also take the opportunity to provide better particulars, and greater clarity, about what is alleged against particular individuals. For example, John Bennie and Greg Littlehayes are identified in paragraph 2.6 of the pleading, but no allegations of wrongdoing appear to be made against them. Further, in paragraph 14 of the proposed pleading, reference is made to Greg Spicer engaging in bullying and harassment, but no particulars are provided in either paragraph 14 or paragraph 46 of the statement of claim. Also, it is unclear whether the officers referred to in paragraph I to the particulars to paragraph 46 of the statement of claim (the constructive dismissal allegation) as having signed certain letters, being Jody Bosman and Nicol Josef, were the relevant decision makers who had knowledge of the protected disclosures, or had simply signed letters at the behest of others.
The requirement to clearly identify whether the various individuals named in the statement of claim have engaged in wrongdoing, by either participating in the alleged corrupt conduct, or engaging in detrimental action in retaliation against the plaintiff, or both, is not merely a technical requirement. It is a serious thing to be named in a pleading alleging corrupt conduct on the part of a public authority. Indeed, the plaintiff herself says that she has suffered greatly as a consequence of accusations of improper conduct and unprofessional conduct made against her in the course of the investigation and its aftermath. If the individuals named in the statement of claim are said to be wrongdoers, then that should be clearly and directly alleged. If they are said to be merely the unwitting dupes of others, then that should also be stated. And, if they are merely bystanders, they probably don’t need to be referred to at all.
Finally, and while this was not the subject of a particular complaint by the defendant, it seems to me that the pleading of the allegation in paragraph 14 of the proposed pleading that the defendant ‘refused to re-employ or rehabilitate to employment’ is somewhat vague and confusing. It seems to me that if the defendant is said to have engaged in detrimental action by failing to do something it was required to do the plaintiff would need to identify the relevant counter-factual: which might be what the defendant was required to do to assist her to return to work and perhaps what the defendant would have done to rehabilitate an employee in her particular circumstances who had not made, or was not suspected of making, a public interest disclosure.
I shall hear further from the parties about the timetable to give effect to these orders, and the question of costs.
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