The Australian Capital Territory v Deacon

[2001] FCA 1634

FEDERAL COURT OF AUSTRALIA

The Australian Capital Territory v Deacon [2001] FCA 1634

APPEAL – whether leave to appeal required from decision of Supreme Court of Australian Capital Territory given by way of advice – whether decision is a judgment or order under s 24 of the Federal Court of Australia Act.

LEGAL PRACTITIONERS – whether solicitor acting for person injured on government premises may approach government employee for information – whether government solicitor informing other solicitor that approach is illegal is in contempt of court – whether government employee owes duty of confidentiality.

PRACTICE AND PROCEDURE – application for declaration in advance of findings of fact – distinction between application for declaration and application for injunction pending suit.

Federal Court of Australia Act 1976 (Cth), s 24
Public Sector Management Act 1994(Cth), s 9
Crimes (Offences Against the Government) Act 1989 (ACT), s 10

Supreme Court Rules (ACT), O 52 r 12,O 57 r 2

Critchley v Australian Urban Investments Ltd [1979] VR 374, cited
R v IRC Ex parte Rossminster Ltd [1980] AC 952, cited
Trimtor Building Consultants Pty Ltd v Hilton [1983] 1 NSWLR 259, cited

THE AUSTRALIAN CAPITAL TERRITORY v GLYN ANTHONY DEACON
A8 of 2001

MILES, O’LOUGHLIN and MADGWICK JJ
23 NOVEMBER 2001
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

A8 of 2001

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE
AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	THE AUSTRALIAN CAPITAL TERRITORY APPLICANT
AND:	GLYN ANTHONY DEACON RESPONDENT
JUDGES:	MILES, O'LOUGHLIN and MADGWICK JJ
DATE OF ORDER:	23 NOVEMBER 2001
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1.        The application for leave to appeal be dismissed.

2.There be no order as to costs of the application.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

A8 of 2001

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE
AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	THE AUSTRALIAN CAPITAL TERRITORY APPLICANT
AND:	GLYN ANTHONY DEACON RESPONDENT

JUDGES:	MILES, O'LOUGHLIN and MADGWICK JJ
DATE:	23 NOVEMBER 2001
PLACE:	CANBERRA

REASONS FOR JUDGMENT

THE COURT:

1. This matter comes before the Full Court by way of application for leave to appeal against a decision of the Supreme Court of the Australian Capital Territory given on 8 February 2001. The applicant acknowledges a threshold difficulty that the decision appealed against may or may not be interlocutory in that it does not finally resolve the issues in dispute in the proceedings in the Supreme Court. If it does not finally resolve those issues, then application for leave to appeal is made pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (the “Federal Court Act”).  The respondent did not oppose full argument being heard on the tentative assumption that leave would be granted.  The history of the proceedings and the decision of the Supreme Court need examination.

   Background

2. On 16 October 1997 the respondent (plaintiff) began proceedings in the Supreme Court in which he sought damages from the applicant (defendant), alleging that he had suffered injury whilst employed by the defendant at the Canberra Hospital on 21 December 1993.  The injury was alleged to have occurred when he was pushing a certain kind of bed.  The plaintiff relied on breach of an unspecified statutory duty and breach of an employer’s common law duty of care to an employee.

3. On 21 November 1997 the defendant filed grounds of defence, admitting the injury but denying any breach of duty. 

4. The appeal papers do not disclose any further steps in the proceedings in the Supreme Court until 18 July 2000, when, according to the affidavit sworn on 21 August 2000, by the plaintiff’s solicitor, Mr Peter Harris, he and the plaintiff went to the Canberra Hospital in order to inspect the floor surface at the scene of the injury.  The exact location is not apparent nor is it known whether that location was in a part of the hospital to which members of the public normally have access or some other part to which public access is denied or restricted.  In any event, the inspection was carried out, apparently without any consultation with hospital staff.  On the way out, the plaintiff and Mr Harris saw a Ms Margaret Brandon, a hospital employee, whom the plaintiff had previously identified to Mr Harris as a potentially helpful witness and whom Mr Harris wanted to interview.  Mr Harris asked her if she would be prepared “to make a statement”, adding that she did not have to do so and that she might seek legal advice if she wished.  Ms Brandon replied that she did not wish to do so.  Mr Harris repeated that she was not obliged to, but that she might be subpoenaed in due course to give evidence.

5. On 28 July 2000, Mr Harris spoke on the telephone to Mr Russell Bayliss, a solicitor and officer of the Australian Capital Territory Government Solicitor, who had carriage of the case on behalf of the defendant.  Both solicitors have given their respective accounts by affidavit of what was said and not surprisingly the two accounts conflict in certain respects. 

6. Mr Harris recorded his conversation with Mr Bayliss as he, Mr Harris, remembered it:

   “9.I expressed surprise and said ‘Who has complained?’  He replied ‘Margaret Brandon’.  Mr Bayliss then said words to the effect, ‘It is a breach of the law for any employee of the hospital to make any statement to you.  There is a legal proscription against any employees making any statement to you’.

   10.I replied with words to the effect, ‘I find that very surprising.  What is the legal basis for that statement?’  He said ‘The Public Service Management Act, Section 9’.

   11.I said words to the effect, ‘Do you consider that this same law applies to ex-employees as well as employees?’ and he said, ‘Yes’.

   12.Mr Bayliss then said that he objected to me being in the hospital at all.  I advised him where I had been and said that the plaintiff and I had been looking at that part of the hospital where the Hendicare beds had been pushed and that I was considering taking a video of the area to show the Court so that the Court might be able to avoid the necessity of attending the hospital during the hearing.

   13.I further said that the plaintiff and I had had only visited those parts of the hospital that were public and we had, of course, not entered any wards or theatres.  Mr Bayliss replied ‘there are no public parts at all.  You can only attend the hospital if you are sick or visiting someone who is sick.  The cause of action occurred at the entry to the radiology room and everything has changed since then’.

   14.I replied with words to the effect, ‘Floor coverings etc are the same in at least some corridors and public areas’.

   15.Mr Bayliss then said words to the effect, ‘You cannot visit the hospital and you cannot obtain statements from witnesses.  Your actions are illegal pursuant to the Crimes Against the Government Act’ by which I took him to be referring to the Crimes (Offences against The Government) Act (1989).”

7. Mr Bayliss also deposed to the details of that conversation as he remembered them.  The relevant passages from his affidavit appear as follows:

   “5.I do not recall Mr Harris using those words set out in paragraphs 9, 10, and 11 of his Affidavit of 21 August 2000.  I did however, say to Mr  Harris that section 9 of the Public Sector Management Act and in particular, paragaphs (p) & (q) of section 9, imposed certain duties upon a Hospital employee in relation to the disclosure of information.  I do not recall saying ‘it is a breach of the law for an employee of the hospital to make any statement to you’, I do recall saying ‘it is potentially a breach of the Public Sector Management Act for any employee of the hospital to make any statement to you about a matter involving the hospital without authority from their supervisor to do so’.

   6.I also said to Mr Harris that an employee owed a duty of confidentiality to an employer.  I further said that in circumstances where the negligence of employees forms the cause of action that it was potentially a breach of that duty for an employee to provide a statement to Mr Harris.  I said to Mr Harris ‘It is a different matter for them to give evidence, I have no problem at all with that, but I do have a difficulty in relation to you obtaining a statement’.

   7.I also recall saying to Mr Harris that the Crimes (Offences Against the Government) Act 1989, in particular section 10, may also apply in the subject circumstances.  It is with respect to section 10 that Mr Harris asked me whether the same applied to ex-employees as well as other employees and to which I replied ‘Yes’.”

8. On 21 August 2000, the plaintiff’s solicitors filed a notice of motion in the proceedings seeking several orders and a declaration. The notice of motion specified that relief was sought pursuant to O 52 r 12 and O 57 r 2 of the Supreme Court Rules (ACT). The terms of the orders proposed are lengthy. They were concerned to restrain “the solicitor for the defendant” from discouraging potential witnesses from giving information about the case to the plaintiff’s solicitor and otherwise from preventing the investigation and preparation of the case on behalf of the plaintiff. The declaration sought was:

   “That the conduct of the Government Solicitor and/or the defendant;

   (a)in attempting to prevent the plaintiff’s solicitor from interviewing and seeking statements from government employees in this matter;

   (b)in threatening the solicitor for the plaintiff and/or those persons whom he wishes to interview in this matter;

   (c)in placing impediments in the way of the plaintiff’s solicitor’s preparation of this matter

   amounts to contempt of court.”

   The Primary Judge’s Decision

9. His Honour rejected a preliminary objection to the motion on the ground that the application in respect of alleged contempt of court should have been the subject of separate proceedings.  His Honour rejected that submission, following the decision of the Full Court of the Supreme Court of Victoria in Critchley v Australian Urban Investments Ltd [1979] VR 374 in which it was said that “the more modern authorities, however, make it quite clear that a motion in the action is the appropriate procedure.” It was also said in the same case that injunctive relief could be granted to prevent a threatened contempt.

10. His Honour stated that the conduct threatened by Mr Bayliss “would constitute an intentional attempt to dissuade potential witnesses from giving truthful evidence” and would be a contempt “unless excused or sanctioned by an express legal rule.”  His Honour then examined s 9 of the Public Sector Management Act 1994 (ACT) and s 10 of the Crimes (Offences Against the Government) Act 1989 (ACT) to see whether any such legal rule operated as justification for the conduct in question so as to deprive it of the character of contempt of court.  

11. His Honour concluded, first, that nothing in the legislation operated to make it unlawful for any public officer in authority to dissuade any witness from giving information acquired in the course of duties or otherwise “to a proper relevant authority” and that there was no duty on the part of a public officer to refrain from disclosing such information.  His Honour appears to have concluded that, whilst there is no enforceable duty to encourage witnesses, “pre-emptively to advise employees that they are entitled to refuse to give information to assist a litigant (or police) might be construed as attempting to pervert the course of justice.”  His Honour found it unnecessary to decide the issue whether the plaintiff’s solicitors were entitled to go onto the hospital premises in order to inspect them or to speak to potential witnesses at the hospital for the purpose of the plaintiff’s case.

12. Noting the orders and declaration sought in the notice of motion, his Honour then stated that the following declarations only should be made.  They were:

    “(1)That the defendant’s solicitor would be impeding the course of justice if he informed or otherwise conveyed to potential witnesses, whether past or current employees of the defendant or not, that there is any legal impediment, other than, if applicable, legal or professional privilege or an otherwise applicable duty to keep confidential material otherwise rendered confidential, to them giving statements or information concerning the facts of this matter to the plaintiff’s solicitors and should not discourage such potential witnesses from giving information to or making statements to the plaintiff’s solicitor about the facts in this matter.

    (2)That the defendant’s solicitor may advise such potential witnesses, if requested by them to do so, that they are not obliged to make such statements or give such information but, if they do so, they are entitled so to do without any detriment to their career or employment.

    (3)That no impediment to a potential witness doing so arises from the (sic) employment past or present, by the defendant or any duty of service to the defendant.”

    Issues in the application

13. There are a number of difficulties facing the applicant.  In the first place, it must be emphasised that neither solicitor was cross-examined on the contents of his affidavit.  The learned primary judge was not asked by either side to make any findings of fact.  That issue alone makes it most difficult for an appellate court to intervene or to express a view.  Having made that point however, the matter can be tested, in part, by considering what Mr Harris has said in his affidavit; his version of the conversation is more serious than that of Mr Bayliss.  To suggest, as counsel for the respondent has suggested, that Mr Harris could be the subject of a personal threat cannot withstand scrutiny.  A solicitor in Mr Harris’ position is wholly within his rights to approach any employee of the hospital seeking a statement from him or her.  The only possible qualification to that statement would be that the approach should be outside working hours and not within the hospital’s premises.

14. If a plaintiff’s solicitor were to approach a public employee seeking from him or her a statement as a potential witness, the solicitor would not know whether the employee had or did not have “lawful authority” to make such a statement.  The solicitor would not know, prior to hearing what the employee might say, whether the acts or omissions that might be the subject of a statement were seen or done or omitted to be done in the performance of the public employee’s duties.  Finally, the solicitor would not know, prior to the interview, what the employee might say, and whether the acts or omissions (ie the “information”) were acquired by the employee “as a consequence of his or her employment”.  The solicitor, as counsel for the Territory conceded, did not have a duty of care to inquire whether the employee could or could not make a statement.  That was the responsibility of the intended witness.  If Mr Bayliss said that which has been attributed to him, he was gravely mistaken.

15. We have come to the conclusion that leave to appeal should not be granted.  It may be, as was submitted on behalf of the Territory, that the application raises important issues from the point of view of the Territory, and, indeed, from the point of view of persons who are injured at work or upon premises occupied by someone else.  However, in the terms of what his Honour said, or is recorded on the transcript as saying, no appellable decision was made.  What his Honour appears to have done is to have expressed a view akin to legal advice about the likely result if Mr Bayliss carried out what Mr Harris said he threatened.  A view or advice of that nature might be given properly during the case management procedures that are a necessary part of the business of a modern court.  But the need to express such views during the course of a pre-trial hearing, or in the form of directions falling short of an enforceable order of the court, is very different from the appropriateness of considering and adjudicating upon a charge of contempt of court on the part of one of the practitioners acting for a party in the proceedings.  Any charge of contempt of court is serious, particularly when made against a legal practitioner.  Once made, neither the party making it, nor the Court, may treat it lightly.  The allegation of contempt in the present case, so it seems, was not pressed and his Honour seems not to have ruled on it.

16. Further, it was not appropriate to grant relief couched in the form of a declaration.  Declaratory relief is appropriate only after the relevant issues have been defined, and if not defined by pleadings, they should be clearly identified for the Court to determine them.  The facts on which the issues need to be decided also need to be either agreed or found by the Court.  Once the issues have been determined in the light of the facts found, it may well be appropriate for the Court to make a declaration binding on the parties as to their existing rights and liabilities.  On the other hand, threats to continue unlawful behaviour may be dealt with not by declaration but by injunction pending suit, and often are.  A permanent injunction is not granted until there has been a determination of existing rights and liabilities.  A declaration is not a form of interlocutory relief, unless, perhaps, in exceptional circumstances: R v IRC Ex parte Rossminster Ltd [1980] AC 952 at 976, Trimtor Building Consultants Pty Ltd v Hilton [1983] 1 NSWLR 259.

17. In accordance with the above the decision of the Supreme Court has no legal effect. It is not an order or judgment under s 24 of the Federal Court Act. The application for leave to appeal should be rejected for that fundamental reason.

18. There is a further reason why, in the exercise of discretion, leave should not be granted assuming that the decision is an order or judgment within s 24. It may be that important principles are involved in the case, but they have not been presented against a sufficiently clear factual background for the Court to be able to pronounce on the rights and liabilities of the parties, whoever the true parties might be, in a sufficiently authoritative way to constitute a judicial determination. To grant leave and to proceed to decide the appeal when there has been no finding that Mr Bayliss was guilty of conduct constituting contempt of court would be to fall into the same error as that of the learned primary judge, namely to give legal advice.

    Disposition

19. Accordingly, the application for leave to appeal will be dismissed.  There will be no order as to costs of the application.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:             23 November 2001

Counsel for the Applicant:	Mr R Tracey QC with Mr C Erskine
Solicitor for the Applicant:	ACT Government Solicitor
Counsel for the Respondent:	Mr P Sheils QC with Ms G Wong
Solicitor for the Respondent:	Canberra Lawyers
Date of Hearing:	16 August 2001
Date of Judgment:	23 November 2001