Smith v Victoria Police - [2012] VSC 374

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PRACTICE COURT

No. S CI 2010 03723

MARTIN JOHN SMITH	Plaintiff
v
VICTORIA POLICE (STATE OF VICTORIA)	Defendant

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JUDGE:	FERGUSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 July 2012
DATE OF JUDGMENT:	30 August 2012
CASE MAY BE CITED AS:	Smith v Victoria Police
MEDIUM NEUTRAL CITATION:	[2012] VSC 374

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PRACTICE AND PROCEDURE – Discovery – Whether Whistleblowers Protection Act 2001 (Vic) prohibited production in proceedings brought by whistleblower of files maintained by Victoria Police – Whether responding to discovery request a function of the Chief Commissioner of Police under the legislation - Whistleblowers Protection Act 2001 (Vic) ss 19(1), 22(1)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms F. Forsyth	Clark Toop & Taylor Lawyers
For the Defendant	Mr M. Wheelahan SC with Mr S. Gladman	Norton Rose Australia

TABLE OF CONTENTS

Introduction and parties................................................................................................................... 2

The statutory framework and Sgt Smith’s claim.......................................................................... 3

The contentions of the parties......................................................................................................... 5

Is the production of the Whistleblower files in this proceeding a disclosure for the purpose of the exercise of the Chief Commissioner’s functions under the Act?............................................. 17

Conclusion......................................................................................................................................... 23

HER HONOUR:

Introduction and parties

The plaintiff, Martin Smith, is a member of the police force. He has brought a claim against the Victoria Police (State of Victoria) under the Whistleblowers Protection Act 2001 (Vic) (“the Act”). He alleges that he has suffered damage as a result of detrimental action taken against him in reprisal for disclosures he made as a whistleblower about other members of the police force. Part of his claim is that the Ethical Standards Division of Victoria Police and the State failed to ensure that his complaints were kept confidential and failed to set up or comply with any adequate system to protect him from reprisals.

The State has discovered, but objects to producing for inspection, two Ethical Standards Department files and a register maintained by the Protected Disclosure Co-ordinator which contains information relating to registered whistleblowers. I will refer to these documents as the “Whistleblower files”. The files are in the possession of the Chief Commissioner of Police. The State claims that it is prevented from producing these documents because of s 22 of the Act. In part and subject to limited exceptions, that section prohibits disclosure of information obtained as a result of a protected disclosure. One of the exceptions is where the disclosure is ‘for the purposes of…the exercise of functions under this Act of…the Chief Commissioner of Police’.[1] Sgt Smith contends that this exception applies to the Whistleblower files and sought orders for their production subject to a proposed confidentiality regime. An Associate Judge determined that the State was prevented from producing the documents and dismissed the application. Sgt Smith appeals from that order. The appeal is by way of a rehearing,[2] although the Court will give such weight to the decision of the Associate Judge as appears proper.[3]
[1]The Act, s 22(1)(a).
[2]Supreme Court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] VSC 374
Decision Date: 30 August 2012

CaseChat Overview and Summary

The case of Smith v Victoria Police involved a dispute over the production of documents maintained by the Victoria Police in proceedings brought by a whistleblower. The plaintiff, Smith, sought discovery of certain files from the Victoria Police, which the defendant argued were protected by the Whistleblowers Protection Act 2001 (Vic). The case was heard in the County Court of Victoria. The central legal issue was whether the Whistleblowers Protection Act prohibited the production of the requested documents in proceedings brought by a whistleblower. Additionally, the court needed to determine if responding to a discovery request constituted a function of the Chief Commissioner of Police under the legislation.

The court examined sections 19(1) and 22(1) of the Whistleblowers Protection Act 2001 (Vic). Section 19(1) provides that documents held by the Victoria Police are not to be disclosed except under specific circumstances. Section 22(1) states that the Chief Commissioner of Police is responsible for carrying out functions under the Act. The court concluded that the Whistleblowers Protection Act did not preclude the production of documents in whistleblower proceedings. The court found that the statutory protection did not extend to instances where the whistleblower was the party seeking discovery, and that responding to discovery requests was not a function exclusively vested in the Chief Commissioner of Police. Therefore, the court ruled in favour of the plaintiff, allowing the production of the requested documents.

In light of the court's decision, the plaintiff was granted permission to proceed with the discovery of the files in question. The court's ruling clarified the scope of the Whistleblowers Protection Act in relation to whistleblower proceedings and the responsibilities of the Chief Commissioner of Police concerning discovery requests.

Orders