Berry v Ryan [2001] ACTSC 11 (22 February 2001)

Last Updated: 13 December 2002

MARTIN GERARD BERRY v JAMES RYAN and AUSTRALIAN CAPITAL TERRITORY [2001] ACTSC 11 (22 February 2001)

CATCHWORDS

PUBLIC INTEREST DISCLOSURE ACT 1994 (ACT) - nature of a public interest disclosure - whether must be made to proper authority - whether Australian Federal Police a proper authority for purposes of Act - disclosable conduct - whether suspicion that people might commit offence or circumstances require investigation sufficient - unlawful reprisal - requirement that action be in the belief that a person has made a public interest disclosure -need for causal link - must be dominant cause of relevant action.

MISFEASANCE IN A PUBLIC OFFICE - elements of tort - recommendation that officer be dismissed - invalidity or lack of authority dependent upon breach of Public Interest Disclosure Act 1994 - whether made in exercise of a public office in a relevant sense - whether officer a member of the public in a relevant sense - whether defendant guilty of malice.

Public Sector Management Act 1994, s 108

Public Interest Disclosure Act 1994, s 3, s 4, s 9, s 10, s 29

Interpretation Act 1967, s 11A

Safety, Rehabilitation and Compensation Act 1988 (Cth), s 45(1)

Northern Territory v Mengel [1994] HCA 37; (1995) 185 CLR 307

McKellar v CTMS Ltd [1999] FCA 1101; (1999) 165 ALR 409

Three Rivers District Council v Bank of England [2000] UKHL 33; [2000] 3 All ER 1

Henly v The Mayor of Lyme (1828) 5 Bing 91

Pemberton v Attorney-General [1987] TASSC 1; [1978] Tas R 1

Tampion v Anderson [1973] VR 715

Sanders v Snell [1998] HCA 64; (1998) 196 CLR 329

No. SC 777 of 1998

Judge: Crispin J

Supreme Court of the ACT

Date: 22 February 2001

IN THE SUPREME COURT OF THE )

) No. SC 777 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: MARTIN GERARD BERRY

Plaintiff

AND: JAMES RYAN

First Defendant

AND: AUSTRALIAN CAPITAL TERRITORY

Second Defendant

ORDER

Judge: Crispin J

Date: 22 February 2001

Place: Canberra

THE COURT ORDERS THAT:

1. There be judgment for the defendants.

1. This is an action for damages for the making of unlawful reprisals contrary to the provisions of the Public Interest Disclosure Act 1994 and for misfeasance in a public office.

2. The plaintiff, who is a member of the legal profession, entered into a contract of employment under s 108 of the Public Sector Management Act 1994 to work for the second defendant as an Administrative Service Officer Class 6 with the ACT Department of Justice and Community Safety from 9 June to 8 September 1998. The contract required him to work within ACT Corrective Services which is a branch of that Department. The first defendant was at all material times the Director and Chief Executive Officer of that branch.

3. During the course of the plaintiff's duties he was asked by the first defendant to take part in an interview with Mr Kindness, then a detainee at the Symonston Periodic Detention Centre administered by ACT Corrective Services. The plaintiff and Mr Fitzgerald, who was the Assistant Director of ACT Corrective Services, duly conducted the interview on 5 August 1998. Mr Kindness made various allegations of misconduct against certain custodial officers including a Mr Scanlon.

4. The plaintiff understood that Mr Scanlon was a friend of Mr Fitzgerald and when asked Mr Fitzgerald confirmed that fact. The plaintiff was also aware that Mr Scanlon had previously had a relationship with the plaintiff's immediate supervisor, Ms McDade, and was making payments to her in relation to the maintenance of a child. He took the view that each of those officers had a clear conflict of interest in relation to any investigation of the allegations which Mr Kindness had made.

5. The plaintiff subsequently mentioned his concerns to the first defendant who told him that he did not think there was any cause for "great concern". Later that day the plaintiff received an email from Mr Fitzgerald indicating that he was going to make himself free on the following Friday and Monday in order to interview other detainees.

6. The first defendant indicated that he wished to have Mr Kindness' sentence varied so that he would not have to return to the Periodic Detention Centre after making the allegations against the custodial officers. He asked the plaintiff to obtain advice from the ACT Government Solicitors Office and to draw up an instrument of delegation giving Mr Fitzgerald statutory power to make an application to the Magistrates Court. The plaintiff informed the first defendant that he did not think that Mr Fitzgerald was the appropriate person to make such an application. In his evidence before me the plaintiff explained that he had been concerned that if the application had succeeded Mr Kindness would have been free to leave the jurisdiction and may not have been available to substantiate the allegations he had made against Mr Scanlon. He had thought it inappropriate that a man who was a friend of Mr Scanlon should make the application on the Department's behalf in those circumstances. He said that the application was subsequently granted and he understood that Mr Kindness had in fact moved to Queensland.

7. He said that the first defendant also directed him to draw up a list of possible disciplinary and criminal offences in the light of Mr Kindness' allegations and of the people who may have committed them. The first defendant agreed that he had asked the plaintiff to prepare a "matrix" of non-criminal administrative issues but said that he had asked Mr Fitzgerald to contact the Australian Federal Police ("AFP") in relation to potential criminal offences. I prefer the first defendant's evidence as to what he actually asked the plaintiff to do but accept that the plaintiff may have been genuinely confused as to what was required.

8. The plaintiff was subsequently approached by Ms McDade who asked him what matter he was working on. She also asked whether it was related to the Periodic Detention Centre and whether it involved Mr Scanlon. The plaintiff thought that it was improper that she should have asked him those questions and was concerned that she even knew about the matter. He told her that he was not in a position to discuss what he was working on with her. He said that she appeared to become angry.

9. The plaintiff had been working on other tasks including a draft response to recommendations of the coroner who had conducted an inquest into the death of a former detainee at the Belconnen Remand Centre but gave priority to the preparation of the schedule of criminal and disciplinary offences and on 11 August 1998 sent a copy of the first draft to the first defendant by email.

10. On the following day after he had identified further potential offences the plaintiff sent a further draft to the first defendant by email. There was no response. However, he had previously arranged to see Mr Styman of the ACT Government Solicitor's Office and before keeping that appointment spoke to the first defendant by telephone. The plaintiff said that he had told the first defendant he had identified "potentially serious criminal offences committed by custodial officers, by detainees and by policy officers as well", that he had mentioned the conflict of interest issues and that he had urged referral to the AFP. The plaintiff said that the first defendant told him to seek advice from the ACT Government Solicitor's Office and he understood from that conversation that if Mr Styman agreed with his view then the matters should be referred to the AFP without delay. Mr Styman subsequently told him that the matters were serious and should be referred to the police. He gave the plaintiff the name of Constable Jeffrey.

11. Mr Berry duly contacted Constable Jeffrey but said that the Constable had found the form of the schedule somewhat confusing and that a revised schedule had been prepared and given to him on 13 August 1998. He had understood that this had been in accordance with the first defendant's direction and was puzzled when the police told him that they already had a letter from Mr Fitzgerald.

12. On the same day he drafted a brief to inform the Attorney-General of allegations of corrupt conduct at the Periodic Detention Centre and of the possible conflicts of interest.

13. On 14 August 1998 the plaintiff had a meeting with the first defendant concerning the document he had given to the AFP and the fact that Mr Fitzgerald and Ms McDade were unhappy that their names had been given to the police. The plaintiff maintained that he had provided the document under the first defendant's direction but the first defendant indicated that he had only just read the three emails which the plaintiff had previously sent him. The first defendant then invited Mr Fitzgerald and Ms McDade to join them and there was a further meeting during which the same issues were canvassed. The plaintiff said that he was questioned about the contents of the material he had provided to the police. He protested that it was inappropriate for him to discuss that material with them. However, the first defendant permitted them to "cross-examine" him and he said that one or both of them threatened him with various actions including prosecution. Mr Ryan indicated that he intended to recover the material from the police.

14. After the meeting the plaintiff spoke to Mr Kettle, Mr Styman and finally Dr Jarvis from the ACT Government Solicitor's Office and gave them an account of what had occurred at the meeting. They suggested that he prepare a statement. He said that whilst he was doing so he was given a copy of the brief to the Attorney-General he had prepared earlier but which had since been signed by the first defendant. He was asked to take it the Ministerial section of the Department of Justice and Community Safety and proceeded to do so.

15. He was subsequently approached by Mr Fitzgerald who showed him a copy of the brief and asked him why it contained references to possible conflicts of interest. The plaintiff told him that he believed there were conflicts of interest. Mr Fitzgerald said that he intended to go and get the brief back before the Attorney-General received it.

16. On Monday 17 August 1998 the plaintiff handed a copy of his statement to Commander Beattie of the AFP. The plaintiff explained in evidence that he had thought that the police needed to know of things that had occurred in case there was an attempt to cover them up.

17. During the following day the plaintiff consulted a person employed in the Ombudsman's office and then someone whom he described as "the ethics officer" of the ACT Law Society. He also received three emails from Mr Fitzgerald directing him to do no further work on the Kindness matter, to cease work he had been doing in relation to the Law Reform Commission and to proceed with all haste to finalise the report required for the inquest referred to earlier.

18. Between 18 and 25 August the plaintiff was anxious about various matters including the prospect of losing his job and the risk to his physical safety from actions of custodial officers or prisoners. He contacted the police and for some time felt better but then began to suffer from palpitations and tightness in the chest. He had been attending what he described as an employment counselling service provided by the Department of Justice and Community Safety but was advised to go to Canberra Hospital. An electrocardiogram conducted on 25 August revealed "non-specific lateral T abnormalities" which he was told was evidence of stress and he was given a medical certificate by his general practitioner the following day to the effect that he was unfit for work on 25 and 26 August.

19. The plaintiff returned to work on 27 August and indicated that he intended to apply for sick leave but said that Mr Fitzgerald told him that he was not eligible for it. He then decided to apply for worker's compensation and went to the Emergency Services branch in Curtin to submit an application. The plaintiff had not told the first defendant, Mr Fitzgerald or Ms McDade where he was and asserted that he had been "under obligation" not to have done so. His contract of employment was terminated by Ms Lana Junakovic, the Manager of the Human Services Unit, that afternoon.

The claim under the Public Interest Disclosure Act

20. This claim is based upon s 29 of the Public Interest Disclosure Act 1994 which provides that "a person who engages in an unlawful reprisal is liable in damages to any person who suffers detriment as a result". The damages may be recovered in an action "as for a tort" in any court of competent jurisdiction and may include exemplary damages.

21. The term "unlawful reprisal" is defined by s 3 of the Act to mean: -

"conduct that causes, or threatens to cause, detriment -

(a) to a person in the belief that any person has made, or may make a public interest disclosure; or

(b) to a public official because he or she has resisted attempts by another public official to involve him or her in the commission of an offence."

22. The term "detriment" is defined to mean: -

"(a) injury, damage or loss;

(b) intimidation or harassment; or

(c) discrimination, disadvantage or adverse treatment in relation to career, profession, employment, trade or business."

23. Whilst para (a) of the definition of "unlawful reprisal" uses the phrase "in the belief" rather than the word "because" which is used in para (b), it is necessary, in my opinion, that the conduct said to constitute the unlawful reprisal occur because of such a belief. Whilst I accept that there may be dangers in seeking to interpret a statutory definition by reference to the term being defined rather than vice versa, that seems clear from the very concept of a "reprisal". This construction also seems to accord with the overall scheme of the Act and the obvious legislative intention of protecting whistle blowers from having action taken against them as a consequence of making public interest disclosures. It is certainly clear that para (b) is directed to the issue of motivation and it would seem incongruous if para (a) were to be interpreted as requiring mere belief. Furthermore, if such a causal requirement were not to be implied then once a person had made a public interest disclosure it would forever remain unlawful for anyone with the requisite belief to take action against that person even for entirely unrelated and perhaps compelling reasons. Mr Everson who appeared for the plaintiff did not contend that the provision should be so interpreted.

24. It is probably unnecessary that the making of the public interest disclosure be the sole motivation for the relevant action but in my view it must be the dominant cause.

25. The term "public interest disclosure" is in turn defined by s 3 to mean: -

"a disclosure of information that the person making the disclosure believes on reasonable grounds tends to show -

(a) that another person has engaged, is engaging, or proposes to engage, in disclosable conduct;

(b) public wastage;

(c) that a person has engaged, is engaging, or proposes to engage, in an unlawful reprisal; or

(d) that a public official has engaged, is engaging, or proposes to engage, in conduct that amounts to a substantial and specific danger to the health or safety of the public."

26. Mr Tracey QC who appeared for the defendants submitted that it was important to note the precise requirements of this definition. The relevant belief must be that the information "tends to show" one or more of the matters set out in paras (a) to (d). Whilst this phrase does not require the person concerned to have an absolute conviction of any of the matters specified in the definition, it does, I think, require more than mere speculation or suspicion. It requires a belief that the evidence disclosed is probative of the matters in question. When as in this case para (a) is relied upon, the person must believe the information tends to show that another person has engaged, is engaging or proposes to engage in disclosable conduct. It is not sufficient for the person to believe that the information reveals a mere possibility of such conduct. Nor is it sufficient for the person to believe that the relevant circumstances need to be investigated. Furthermore, the requisite belief must be held on reasonable grounds. I accept these submissions.

27. The term "disclosable conduct" is defined as meaning conduct which, by virtue of subs 4(1) is taken to be disclosable. Section 4 of the Act is in the following terms: -

"(1) For the purposes of this Act, conduct is to be taken to be disclosable if -

(a) it is of a type referred to in subsection (2); and

(b) it could constitute -

(i) a criminal offence;

(ii) a disciplinary offence; or

(iii) reasonable grounds for dismissing or dispensing with, or otherwise terminating, the services of a public official who is engaged in it.

(2) Paragraph (1) (a) applies in relation to the following types of conduct:-

(a) conduct of a person (whether or not a public official) that adversely affects, or could adversely affect, either directly or indirectly, the honest or impartial performance of official functions by a public official or government agency;

(b) conduct of a public official which amounts to the performance of any of his or her official functions dishonestly or with partiality;

(c) conduct of a public official, a former public official or a government agency that amounts to a breach of public trust;

(d) conduct of a public official, a former public official or a government agency that amounts to the misuse of information or material acquired in the course of the performance of official functions (whether for the benefit of that person or agency or otherwise);

(e) a conspiracy or attempt to engage in conduct referred to in paragraphs (a) to (d) (inclusive).

(3) In this section -

"criminal offence" means an offence against a law in force in the Territory;

"disciplinary offence" means conduct that constitutes grounds for disciplinary action under a law in force in the Territory."

28. It may be noted that the conduct in question must be of a type referred to in subs (2) but it is sufficient that it "could" constitute the matters referred to in para 1(b).

29. Whilst the definition of the term "unlawful reprisal" does not contain any express requirement that the public interest disclosure be made to any particular person or body, s 15 provides that any person may make a public interest disclosure to a "proper authority". In view of this provision, I think that s 29 should be construed as applying only to unlawful reprisals for disclosures to proper authorities rather than to the media or other people. The term "proper authority" is defined in s 3 to mean a person or body authorised to receive a public interest disclosure under the Act and includes its Chief Executive Officer or governing body.

30. Section 9 provides that:

"Each government agency is a proper authority to receive -

(a) a public interest disclosure -

(i) concerning the agency's conduct or the conduct of a public official in relation to the agency;

(ii) concerning a matter, or the conduct of a person, that the agency has a function or power to investigate;

(iii) referred to it by another government agency; or

(iv) if the person making the disclosure believes that the agency is a proper authority to receive the disclosure; or

(b) a public interest disclosure that a person has engaged, is engaging, or proposes to engage, in an unlawful reprisal where -

(i) in the case of an unlawful reprisal that relates to a previous public interest disclosure - the previous public interest disclosure was made to the government agency; or

(ii) in the case of an unlawful reprisal that relates to an attempt by a public official to involve another person in the commission of an offence - the public official is a public official in relation to the government agency."

31. The term "government agency" is defined in s 3 to mean: -

(a) an administrative unit;

(b) a Territory instrumentality; or

(c) a statutory office holder and the staff required to assist the statutory office holder.

32. Section 10 requires a government agency to establish procedures to facilitate the making of public interest disclosures and to deal with any such disclosures that it is the proper authority to receive.

33. A pamphlet prepared by the ACT Attorney-General's Department presumably pursuant to this section purports to advise members of its staff that disclosures may be made to

"the ACT Attorney-General's contact officer, the Manager, Ministerial and Corporate Services or:

* the body where the conduct occurred;

* a body that you think may have the power to investigate the conduct;

* any ACT Government agency you think best; or

* the ACT Ombudsman."

34. Whilst, prima facie, the government agencies referred to in s 9 must be taken to refer to agencies of the government of the Australian Capital Territory, the section must in my view be taken to extend to the AFP. Section 11A of the Interpretation Act 1967 provides that in the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act should be preferred to a construction that would not promote that purpose or object. It is clear from sub para 9(a)(ii) that a government agency is a proper authority to receive a public interest disclosure concerning, inter alia, the conduct of a person "that the agency has a function or power to investigate" and from s 4 that such disclosable conduct may include conduct that may amount to the commission of a criminal offence. Whilst the AFP is a Commonwealth rather than an ACT body I am prepared to take judicial notice of the fact that it provides police services to the Territory pursuant to an agreement between the governments. In this sense at least it is an "agency" of the ACT government. Furthermore, it is the government agency that most obviously has a functional power to investigate potential criminal offences. In this context the purposive approach to interpretation which is required by s 11A of the Interpretation Act 1967 is of particular significance.

35. Mr Tracey did not contend that the information disclosed by the plaintiff had not been received by a proper authority. He submitted rather that the plaintiff's belief did not extend to information tending to show that another person had engaged, was engaging, or proposed to engage in disclosable conduct as alleged. The plaintiff had not claimed that either Mr Fitzgerald or Ms McDade had performed his or her official functions dishonestly or with partiality. He had merely asserted the existence of conflicts of interest and the need for further investigation. Mr Tracey argued that whilst actual bias would obviously fall within the class of conduct described in subs 4(2) allegations of perceived bias would not. I would not so readily dismiss the possibility that conduct undertaken by one person in circumstances raising a reasonable apprehension of bias might affect, albeit indirectly, the honest or impartial performance of official functions by another person who was public official or by a government agency. However, as I have mentioned, the person must believe on reasonable grounds that the information tends to show conduct which is of a type described in subs (2) and could constitute a criminal or disciplinary offence or reasonable grounds for dismissing, dispensing with or otherwise terminating the services of a public official. It is not sufficient that he or she believe the information provides grounds for suspecting that disclosable conduct might occur or concluding that potentially suspicious circumstances should be investigated.

36. The schedule which the plaintiff provided to the police referred to Mr Fitzgerald and Ms McDade and suggested that they may have committed offences under subs 14(1) of the Crimes (Offences Against the Government) Act 1989. That subsection is in the following terms:

"An officer of the Territory who asks for, receives or obtains, or offers or agrees to ask for, receive or obtain, any property or benefit of any kind for the officer or any other person, on an understanding that the performance by him or her of his or her duty, or the exercise by him or her of his or her authority, as an officer of the Territory will, in any manner, be influenced or affected, is guilty of an offence punishable on conviction, by imprisonment for a period not exceeding two years."

37. The basis upon which it was suggested that Mr Fitzgerald was potentially liable for prosecution for such an offence was described in the following terms in the document provided to the AFP:

"As friend of Scanlon make statement, appear on behalf of Director in action to waive part of K's sentence, request AFP involvement to investigate limited range of matters arising from Kindness tape."

38. It is clear, even on the plaintiff's evidence, that it was the first defendant who took the decision to have an application made to the Magistrates Court for an order effectively relieving Mr Kindness of the obligation to serve the balance of his sentence. Indeed, the plaintiff was asked to draw the necessary instrument of delegation to authorise Mr Fitzgerald to make the application on the first defendant's behalf. Mr Fitzgerald had told the first defendant of his association with Mr Scanlon and had said that he was not comfortable about dealing with any investigation involving him though he was willing to make the application in the Magistrate's Court as directed. When he prepared the affidavit in support of the application he showed it to the plaintiff prior to it being filed. The plaintiff did not suggest that it contained any untrue assertion or in any way suggested a dishonest or partial approach to the performance of Mr Fitzgerald's duties. Furthermore, the plaintiff did not suggest that Mr Fitzgerald had asked for, received, obtained or agreed to receive or obtain any property or benefit of any kind from Mr Scanlon.

39. In his evidence before me, the plaintiff sought to explain that there had been a breach of the subsection because Mr Fitzgerald had been "asking the court to obtain a benefit of Mr Scanlon to wit his accuser would be out of the jurisdiction"(sic). However, he agreed that Mr Fitzgerald had told the court that Mr Kindness was going to be out of the jurisdiction by the end of August regardless of whether the sentence was reduced. More importantly, even if it could have been asserted that Mr Scanlon had obtained some advantage that could have been regarded as a "benefit" for the purpose of subs 14(1), it would not have been a benefit obtained on the understanding that the performance of his duty would be affected. On the contrary, it would have been a benefit derived from a decision of the Magistrate's Court in response to an application which Mr Fitzgerald had been directed by the first defendant to make. In view of that direction it had been his duty to make the application and take the steps that were reasonably open to him in support of it. There was no evidence that the plaintiff believed the performance of that duty had been influenced by any such benefit or that there had been any understanding that it should be so influenced. Nor were there any grounds for such a belief.

40. Consequently there was no basis for the suggestion that he may have committed an offence under the subsection.

41. In relation to Ms McDade the only bases put forward for such a suggestion were those contained in the following notes provided to the AFP.

"as friend and beneficiary of Scanlons and following commencement of my investigation.

* pressure me to limit investigation,

* begin to criticise my work,

* fail to advise me of extra (sic),

* continue to attempt to supervise my investigation and other work, and

* remain in a position to end my contract.

42. Again, there was no suggestion that the plaintiff believed Ms McDade had asked for, received, obtained or agreed to receive or obtain any property or benefit benefits on an understanding of the kind stipulated in the subsection nor any grounds for such a belief. In short, there was no reasonable basis for the suggestion that she may have committed an offence.

43. Furthermore, in cross-examination, Mr Berry made it clear that what he had been endeavouring to do in preparing the schedules was to identify offences that might be committed or matters that in his opinion required investigation. For example, at one point he said " . . . this was identifying offences that they might commit depending on how they behaved". When it was put to him that he was still prepared to put that down as a potential breach of legislation he answered "Yes, a matter to be investigated, yes". He further explained:

"And should there be facts and information that supported that then there was a potential - all of this is based on their needing to be an investigation by somebody to ascertain whether there was any relevant evidence of any of this because none of this was on the basis that there was already evidence - my job was to identify what potential offences there were, which I did. They all depended on subsequent investigation to ascertain what the strength of the evidence was, if any."

44. In relation to the comments in the schedules concerning Mr Fitzgerald and Ms McDade the plaintiff explained:

"Well I'd indicate that Mr Fitzgerald and Ms McDade had the potential to have committed the offences identified and I gave an indication in those different schedules as to a very brief basis that that might be so, and indicated quite clearly that these were a matter for other investigatory bodies. That was the first phase to identify who and potentially what should be investigated.

And you say that isn't an allegation? Yes, I certainly say that."

45. Later when asked to explain a reference in his evidence to "corrupt conduct" he referred to a schedule of potential offenders that had been provided to the AFP to facilitate an investigation. When pressed as to what corrupt conduct had been alluded to he gave the following evidence.

"Attempting to intimidate and hewers [harass - sic] or otherwise improperly influence an officer in the conduct of his duties, an attempt to gain a benefit by virtue of either knowledge that they had or by misuse of their position to gain a benefit for themselves or another.

Were they doing that?

A: Were they doing it?

How were they doing it?

A: Well I had a suspicion that they were doing that, yes.

Right, no more?

A: No, no more, no."

46. In the circumstances, I am not satisfied that the statements made in relation to Mr Fitzgerald and Ms McDade involved a disclosure of any information that the plaintiff believed on reasonable grounds tended to show that either of those people had engaged, were engaging or proposed to engage in disclosable conduct.

47. On the other hand, I am satisfied that the disclosures by Mr Kindness provided a reasonable basis for the plaintiff's belief that Mr Scanlon and/or other custodial officers engaged in disclosable conduct.

48. Hence, whilst I am unable to accept Mr Everson's submission that the whole of the document sent to the police should be regarded as a public interest disclosure, I am equally unable to accept Mr Tracey's submission that nothing disclosed in that document could be regarded as falling within that description.

49. There is nothing in s 3 of the Public Interest Disclosure Act to suggest that the concept of a public interest disclosure should be taken to extend to the whole of a document that happens to contain some such information. Nor is there any reason to suppose that the legislature intended to extend the protection provided by s 29 to unfounded, unreasonable or even scurrilous assertions about other people. It is incumbent upon a person seeking to recover damages under the section to establish an unlawful reprisal for the specific information that constitutes a public interest disclosure. Hence, I am satisfied that the provision of the report to the police was a public interest disclosure only to the extent to which it conveyed information concerning possible criminal offences by Mr Scanlon and other custodial officers.

50. The plaintiff claimed that there had been two unlawful reprisals.

51. First, during the course of the meeting conducted on 14 August 1998 the first defendant allegedly threatened to terminate his contract of employment.

52. The evidence as to what was said at that meeting is not entirely consistent. As previously mentioned, the plaintiff said that he had been questioned about the contents of the material by Mr Fitzgerald and Ms McDade and that they had threatened him various things including prosecution. Ms McDade had told him that she didn't think that she could work with him any more and Mr Fitzgerald had said that he thought he possibly could work with the plaintiff but that he would need very close supervision in relation to his work. More significantly, the plaintiff said that the first defendant had "expressed concern - I'm not exactly sure of the words, but as to whether my contract could continue". He said that he came away from the meeting with the impression that his job was under threat as a result of having passed information to the police.

53. Mr Fitzgerald denied that any suggestion was made to the plaintiff that his contract of employment would be terminated but said that he did tell the plaintiff that he had a responsibility to "make this relationship work as well".

54. Similarly, Ms McDade said that she had no recollection of the first defendant suggesting that the plaintiff's contract would be terminated. She said that the first defendant did say that "given the events that had occurred he wanted to have some thought and discussion about the viability of the ongoing working relationship" involving Mr Fitzgerald, the plaintiff and her, and that he wanted to have a further meeting at some time in the future to discuss that issue.

55. Evidence was led without objection from Mr Kettle, a solicitor employed by the ACT Government Solicitors Office, with whom the plaintiff had discussed the meeting shortly afterwards. According to the notes of that conversation the plaintiff had indicated that there had been a threat of termination of the contract because he was no longer able to work with Mr Fitzgerald and Ms McDade.

56. The first defendant denied having threatened the plaintiff with dismissal at the meeting but in cross-examination conceded that when the plaintiff asked where he stood he had told him that "given the circumstances it's quite unlikely your contract would be renewed". He explained that he had been referring "not just to his actions with respect to the report sent to the Federal Police supposedly through me, but also to the continuing problems we had with Mr Berry and his superiors, which clearly at that point had reached the lowest point".

57. I have no doubt that all the participants did their best to recall precisely what was said at the meeting in relation to this issue. However, the meeting was lengthy and had obviously been attended by considerable tension. Furthermore, a significant amount of time had passed before they were called upon to recall the precise terms of the conversation and in the intervening period there had been other conversations between the plaintiff and various participants concerning much the same issues.

58. Ultimately, the only evidence of a threat to terminate the plaintiff's existing contract lay in the terms of the complaint which the plaintiff had made to Mr Kettle and the plaintiff did not maintain any such claim in his evidence before me. As I have mentioned, he merely said that the first defendant had expressed concern as to whether his contract would continue. In these circumstances I am not satisfied that any such threat was made.

59. It is true that the first defendant conceded having told the plaintiff that it was quite unlikely that his contract would be renewed but I accept his evidence that he did so in response to a question from the plaintiff as to where he stood. It was in my view entirely appropriate that the first defendant should offer a candid response to a question of that nature. As previously mentioned, an unlawful reprisal may consist of conduct that threatens to cause detriment to the other person and for present purposes I am inclined to accept that a decision to withhold the benefit that might otherwise have been derived from a further contract would have been detrimental to the plaintiff in the relevant sense. However, a threat normally consists of a declaration of an intention to punish or to hurt someone and I think that, in the context of the definition of "unlawful reprisal" contained in s 3, conduct that "threatens to cause detriment" must mean conduct that reflects such an intention. The mere statement of an unfavourable prognosis or even of an intention to decide an issue adversely to a person is not in this sense a threat and does not in my opinion amount to conduct that "threatens to cause" detriment. I am not satisfied that the statement made by the first defendant fell within this description.

60. I also accept the first defendant's evidence that in making this statement he had had in mind not just the plaintiff's actions in sending the report to the police but also the continuing problems in his relationship with Ms McDade and Mr Fitzgerald who were, of course, his superior officers. All of the participants including the plaintiff agree that his continuing relationships with those officers were discussed at the meeting.

61. The plaintiff impressed me as a man of complete integrity. However, he displayed a markedly obsessive personality and seemed quite incapable of understanding that other people might have seen things differently. Hence, when Ms McDade asked him where he was going Mr Berry emphatically refused to tell her. He obviously felt that since there was a potential conflict of interest she should not have asked. It did not seem to have occurred to him that as his superior she was entitled to know why he was leaving the office, that she had no reason to suspect that such a question would be perceived to be inappropriate, that some answer could have been given without any breach of integrity or that sensitivity and tact were not necessarily seditious qualities. He also displayed a propensity to see any competing demands upon his time as unjustified intrusions upon what he regarded as the path of duty and to suspect those making them of ignoble motives. The plaintiff's responses to Ms McDade seemed to have been needlessly brusque and he seemed unconcerned that she may have been hurt by them. He had previously worked in Commonwealth Public Service in positions at levels higher than those occupied by either Ms McDade or Mr Fitzgerald and may have felt that he knew better. I am sure that the plaintiff acted in the manner that he thought was appropriate but in view of the attitude that he displayed in the witness box I have no difficulty in understanding the first defendant's concerns about his ability to maintain satisfactory working relationships with Mr Fitzgerald and Ms McDade.

62. The first defendant's attitude to any further contract of employment with the plaintiff was clearly influenced by the fact that the plaintiff had sent the report to the AFP. However, as I have mentioned, that amounted to a public interest disclosure only to the extent to which it conveyed information concerning possible criminal offences by Mr Scanlon and other custodial officers and he had directed that the allegations of potentially criminal conduct be referred to the AFP. In these circumstances it seems unlikely that the first defendant was particularly distressed at the disclosure of those allegations even if the information previously conveyed by Mr Fitzgerald had been augmented by the report prepared by the plaintiff. The first defendant was clearly angry at the suggestions made in that report concerning Mr Fitzgerald and Ms McDade and at its purported referral "through" him but those matters do not in my view fall within the concept of public interest disclosure.

63. In the light of all of the available evidence I am satisfied that his attitude to any further contract was primarily influenced by his concern about the nature of the plaintiff's continuing relationships with Mr Fitzgerald and Ms McDade and, to the extent to which it was also influenced by anger at the provision of the report to the police, that anger was primarily related to aspects of the report which did not constitute public interest disclosures. It is conceivable that even the unauthorised provision of the further information concerning possible criminal offences by custodial officers may been a source of some irritation but that has not been established and in any event, I think it would have been, at most, a minor contributory factor. Furthermore, whilst the provision of the report may have angered the first defendant it also contributed to his concern about the viability of the working relationships which the plaintiff had with Mr Fitzgerald and Ms McDade.

64. Accordingly, even if I had been satisfied that the first defendant's statement about the unlikelihood of the plaintiff's contract being renewed could fairly be regarded as a threat, I would not have been satisfied that it was a threat made "in the belief" that he had made a public interest disclosure. Nor, in my view, was there anything to suggest it was made in order to intimidate or harass the plaintiff.

65. In these circumstances, I am not satisfied that anything the first defendant said at the meeting constituted an unlawful reprisal.

66. Second, the plaintiff claimed that the decision to terminate his employment contract amounted to an unlawful reprisal.

67. That decision was made not by the first defendant but by Ms Junakovic. The first defendant did not direct her to make it and was not in a position to have done so. Hence, it could not have constituted an unlawful reprisal on his part.

68. Ms Junakovic's decision was based upon information given to her by the first defendant to the effect that the plaintiff was not adequately performing his duties and she had not been aware that he had made allegations against other officers. Hence, she could not have made the decision in the belief that he had made a public interest disclosure and it could not have constituted an unlawful reprisal.

69. For these reasons the plaintiff was obliged to reformulate this aspect of his claim to rely upon the conduct of the first defendant in approaching Ms Junakovic with a view to having the contract terminated.

70. In support of his contention that this was an unlawful reprisal the plaintiff sought to establish the first defendant's motivation by reference to his letter of 27 August 1988 and the first defendant's own evidence. The letter had advised the plaintiff of his intention to seek the termination of his contract and stated:

"I do so on the grounds that you continue to refuse or accept appropriate and reasonable supervision of your tasks. At this point I cannot foresee that you are likely to complete any work between now and the end of your contract on 9 September 1988, nor do I have the impression that you have any intention of doing so. I also have the view that you may have committed offences under the Public Sector Management Act."

71. In his evidence before me the first defendant said that the letter truthfully recorded his reasons for seeking the termination of the plaintiff's contract and that he had no other motivation for doing so. He specifically rejected the suggestion that he had made that decision because the plaintiff had been a "whistle blower". In cross-examination he gave the following evidence:

"What were the offences that you believe Mr Berry may have committed under the Public Sector Management Act?

I believe that he may have committed offences with respect to failing to take direction, reasonable direction from his superiors and absenting himself from the workplace. I believe he may have also committed offences with respect to the manner in which he failed to pay due attention and care to the manner in which he treated his fellow workers including his superiors.

Can you give us an example of that last answer you gave, such as what?

Such as sending something off to the Federal Police without authority or without knowledge of the organisation. Accusing those people potentially with offences under the Crimes Act and the Public Sector Management Act."

72. It is on the basis of this evidence and further answers to like effect that the plaintiff submits that the first defendant had requested the termination of the plaintiff's contract because the plaintiff had made a public interest disclosure. I am unable to accept this submission.

73. As previously mentioned, I have no doubt that the first defendant's anger at the provision of the report to the AFP was primarily attributable to the fact that it contained what he perceived to be serious allegations against Mr Fitzgerald and Ms McDade that he believed to be entirely groundless and that it purported to have been sent "through" him when he had not authorised such a course. Furthermore, this was only one, albeit important, step in a course of conduct maintained over a period of about three weeks. I think the plaintiff may have misunderstood the first defendant's instruction to prepare a matrix of non-criminal, administrative issues arising from the Kindness allegations and assumed that the task he had been allocated extended to the provision of information as to possible criminal offences. However, on 14 August 1998 he was instructed that he was to have no further involvement of any kind in relation to the Kindness matter and it appears that whilst the first defendant thought it unlikely that the plaintiff's contract would be renewed he then had no intention of recommending that the existing contract be terminated. On the contrary, he indicated that he wanted to have a further meeting to discuss the viability of the plaintiff's working relationships with Mr Fitzgerald and Ms McDade. Furthermore, he subsequently approached the plaintiff, told him not to worry too much about what had occurred that morning and made the encouraging comment, "Next week will be a better week".

74. There is no reason to suppose that the first defendant had been disingenuous with the plaintiff or that in the absence of any further incident he simply had changed his mind and decided to seek the termination of the existing contract. The evidence in fact reveals that even after the plaintiff was told that he was to have nothing more to do with the Kindness matter he did not complete other tasks by the time requested and absented himself from the office without telling anyone where he was going. It appears that the first defendant was moved to approach Ms Junakovic about terminating the contract because of these further difficulties. Whilst the Act provides protection against reprisals for public interest disclosures it does not authorise public servants to disobey the lawful directions of their superiors, ignore their other duties or leave their workplaces without explanation.

75. I see no reason to doubt the first defendant's evidence that he thought that the plaintiff was not going to complete any further work prior to the end of the contract. That view may not have been correct. I did not form the impression that the plaintiff was lazy. The evidence suggested rather that he had continued to be preoccupied with his own views and had arrogated to himself the right to determine his own priorities and to withhold information from his superiors that he thought they should not have. I am prepared to accept that the making of a public interest disclosure could be a real and effective cause of some action that might constitute a reprisal even if there was some further supervening cause that became, in effect, the straw that broke the camel's back. However, the plaintiff bore the onus of establishing that the action taken by the first defendant amounted to unlawful reprisal for a public interest disclosure and having considered all of the evidence in the case I am not satisfied that it did. On the contrary, I accept that the first defendant acted as he did for the reasons explained in his letter.

76. Accordingly, the claim against the defendant under the Public Interest Disclosure Act 1994 must fail.

77. Since the claim against the second defendant is based upon an allegation of vicarious liability for any unlawful reprisal against the plaintiff by the first defendant that claim must also fail.

The claim for misfeasance in a public office

78. This claim is based upon the tort of misfeasance in a public office. It is common ground that the tort involves the following elements:

(a) there must be an invalid or unauthorised act;

(b) done maliciously;

(c) by a public officer;

(d) in the purported discharge of his or her public duties;

(e) which causes loss or harm to the plaintiff.

See generally Northern Territory v Mengel [1994] HCA 37; (1995) 185 CLR 307 per Deane J at 370; McKellar v CTMS Ltd [1999] FCA 1101; (1999) 165 ALR 409; and Three Rivers District Council v Bank of England [2000] UKHL 33; [2000] 3 All ER 1.

79. Mr Everson submitted that the invalid or unauthorised act of the first defendant consisted of the direction or request to Ms Junakovic to terminate the plaintiff's contract of employment contrary to the requirements of the Public Interest Disclosure Act 1994. Malice was evident from the fact that the first defendant knew or ought to have known of the obligations imposed upon him by that provisions of that Act and from his failure to tell Ms Junakovic that the plaintiff had complained to the AFP of possible offences committed by his staff. It had been admitted that he was a public officer and, in any event, he clearly fell within the expansive description of "every one who is appointed to discharge a public duty, and receives a compensation . . ." which was first offered by Best CJ in Henly v The Mayor of Lyme (1828) 5 Bing 91 at 107-108 and more recently quoted by Brennan J in Northern Territory v Mengel at 355. The first defendant approached Ms Junakovic in the purported discharge of his public duties and his conduct in doing so caused loss or harm to the plaintiff. Hence, Mr Everson maintained, he is entitled to damages.

80. There are a number of answers to these contentions.

81. Whilst it was initially admitted not only that the first defendant was at all material times a public officer but that he acted as such an officer, Mr Tracey sought to argue that as a matter of law the first defendant had held public office for all purposes except that of the employment relationship. He relied for this proposition upon the judgment of the Tasmanian Court of Appeal in Pemberton v Attorney-General [1987] TASSC 1; [1978] Tas R 1. In that case Neasey J quoted at 12 the following passage from the judgment of the Victorian Court of Appeal in Tampion v Anderson [1973] VR 715 at 720:

"The precise limits of the tort have yet to be defined but certain things are clear. Employment with the Crown is not necessarily a public office for this purpose. The office must be one the holder of which owes duties to the members of the public as to how the office shall be exercised. The action has been held to lie in respect of an act done in purported exercise of statutory or common law powers incident to such an office where those powers are knowingly exceeded . . . But to be able to sustain an action upon this basis a plaintiff plainly must not only show damage from the abuse; he must also show that he was the member of the public, or one of the members of the public, to whom the holder of the office owed a duty not to commit the particular abuse complained of."

82. His Honour respectfully adopted what the Court had said in this passage and after citing other authority said that in his opinion the Director-General of Education in dismissing the plaintiff from the teaching service had not been exercising a public office in a relevant sense and that the plaintiff had not been a member of the public in a relevant sense. He explained that the relationship between them had arisen and been regulated entirely by the relevant Act and the regulations made thereunder. Hence, there had been no scope for the commission of the tort of misfeasance in a public office.

83. The other two judges in Pemberton decided the appeal upon different grounds. Furthermore, the subsequent decision of the High Court in Sanders v Snell [1998] HCA 64; (1998) 196 CLR 329 may be inconsistent with this approach, though the court did not purport to define all of the elements of the tort and it does not appear that this issue was either raised or decided. Despite this lack of support I would be inclined to follow the approach taken by Neasey J and hold that the relationship between the first defendant and the plaintiff was dependent entirely upon the terms of the Public Sector Management Act 1994 pursuant to which both were employed. However, having regard to the state of the pleadings I concluded that it was not open to either of the defendants to maintain this contention.

84. On the other hand, I accept Mr Tracey's submission that the plaintiff has failed to prove that the first defendant acted maliciously. There is no evidence that he knowingly acted in excess of his authority and I am not satisfied that he acted in order to secure a breach of the Public Interest Disclosure Act 1994 or to circumvent its provisions. Despite his failure to mention to Ms Junakovic the plaintiff's antecedent disclosure to the police I accept that he was entitled to what he did and that he had a bona fide belief that it was a reasonable response to the situation with which he was confronted.

85. Mr Tracey also submitted that since the claim is predicated upon the proposition that the termination of the plaintiff's contract had been contrary to the provisions of the Public Interest Disclosure Act it added nothing to the claim under s 29 of that Act. I accept that submission. The plaintiff's claim is dependent upon the finding of a breach of that Act to establish the first element of the tort, namely that the relevant act was invalid or unauthorised.

86. The claim against the second defendant is again dependent upon an allegation of vicarious liability for the conduct of the first defendant and in view of the findings that I have made it must also be dismissed.

87. Finally, Mr Tracey submitted that the plaintiff was effectively prevented from maintaining either of his claims at least insofar as they related to any injury allegedly sustained because he had not made an election to institute an action against the Commonwealth as required by subs 45(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth). However, in the circumstances it is unnecessary to consider this defence.

88. The action must be dismissed.

I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 22 February 2001

Counsel for the plaintiff: Mr C Everson

Solicitor for the plaintiff: Saunders and Co

Counsel for the first and second defendants: Mr R Tracey QC with Mr C Erskine

Solicitor for the first and second defendants: ACT Government Solicitors Office

Date of hearing: 6-10 March 2000; 21-23 August 2000; 7 December 2000

Date reserved: 7 December 2000

Date of judgment: 22 February 2001