Falk v Australian Capital Territory and Ors [2006] ACTSC 68 (7 July 2006)

Last Updated: 12 February 2007

MICHAEL JOHN FALK v AUSTRALIAN CAPITAL TERRITORY and ORS

[2006] ACTSC 68 (7 July 2006)

PUBLIC SERVICE - whistleblowers - public interest disclosure - Public Interest Disclosure Act 1994 (ACT) - unlawful reprisal - what constitutes - requirement for conduct constituting an unlawful reprisal to be caused by belief as to public interest disclosure - detriment must result.

Public Interest Disclosure Act 1994 (ACT), s 3, s 4, s 25, s 30, s 31

Public Sector Management Act 1994 (ACT)

Criminal Code 2002 (ACT), Pt 3.4

Workplace Relations Act 1996 , s 298K(1)(c

Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1

Berry v Ryan [2001] ACTSC 11; [2001] 159 FLR 361

Patrick Stevedores Operations (No. 2) Pty Ltd v Maritime Union of Australia (No. 3) [1998] HCA 30; (1998) 153 ALR 643

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Simpson, Bailey & Evans, Discovery and Interrogatories

No. SC 591 of 2005

Judge: Gray J

Supreme Court of the ACT

Date: 7 July 2006

IN THE SUPREME COURT OF THE )

) No. SC 591 of 2005

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: MICHAEL JOHN FALK

Plaintiff

AND: AUSTRALIAN CAPITAL TERRITORY

First Defendant

AND: TONY CLARKSON

Second Defendant

AND: MARK CORMACK

Third Defendant

ORDER

Judge: Gray J

Date: 7 July 2006

Place: Canberra

THE COURT ORDERS THAT:

1. The plaintiff's application be dismissed.

1. The plaintiff, Dr Michael Falk, brings this action under the provisions of s 30 and s 31 of the Public Interest Disclosure Act 1994 (ACT) (the Act) making application for injunctions and orders in respect of actions that the plaintiff alleges were unlawful reprisals under the Act.

2. On 11 March 1999, the plaintiff commenced employment at The Canberra Hospital (the Hospital), as Senior Staff Specialist of Nephrology. At the same time, he was appointed Director of Renal Services at the Hospital. He no longer remains the Director (or Acting Director) of Renal Services, although he is still employed as a Senior Staff Specialist in the renal unit.

3. The first defendant, the Australian Capital Territory, is the plaintiff's employer and is responsible for the administration of the Hospital; the second defendant, Dr Tony Clarkson, was the Acting Director of the renal unit of the Hospital at all material times; the third defendant, Mr Mark Cormack, was the Deputy Chief Executive of Clinical Operations, ACT Health, at all material times. The second and third defendants were, at all material times employees of the first defendant.

Background

4. There is a history of the relationship between Dr Falk and the Hospital and its employees prior to the matters which give rise to Dr Falk's present complaint. The relevance of this history was challenged by Mr Tracey QC, who appeared for the defendants. Generally, I think that challenge was made good. It did provide me with background and a general understanding of the unhappy and mistrustful relationship that existed between various employees of the Hospital and Dr Falk, although it does not really assist in resolving the issues involved in these proceedings. However, one aspect of the background that is of moment was that a number of complaints concerning Dr Falk's behaviour in employment had been the subject of ongoing procedures since September 2001. Investigations had taken place and action had been taken as a consequence. However, some of these processes were found to be flawed in a report dated 12 April 2004 of Clayton Utz, the Hospital's solicitors. For his part, Dr Falk has lodged a number of grievance complaints against various officers. Following a conciliation conference in the Australian Industrial Relations Commission in May 2005, the complaints against Dr Falk were finally further and better particularised in a letter dated 23 May 2005 from Clayton Utz to Dr Falk's solicitors, Corrs Chambers Westgarth. An investigation of those particularised complaints was proposed and investigators instructed.

5. One of the complaints under investigation and which has given rise to these proceedings goes back to when Mr Robert Little, a patient of Dr Falk, made certain allegations about his treatment to Dr Mark Bassett, the Clinical Acting Deputy Manager of the Hospital, in a letter dated 18 February 2004. In that letter, Mr Little detailed a number of concerns relating to the management of his medical condition by Dr Falk (his treating specialist), as well as non-clinical issues. Initially, Dr Falk was not informed of Mr Little's letter because Mr Little had expressed concern that putting Dr Falk on notice that a complaint had been made could jeopardise his continuing treatment at the Hospital. As part of the investigation that was to result from the particularised charges, that complaint was, in May 2005, referred to Associate Professor Randall Faull for report.

6. At a meeting on 25 January 2005, at which Dr Falk was not present, Mr Little informed officers of the Hospital that what he wanted to resolve the matter was a letter from Dr Falk. The notes of the meeting note "All agree Dr Falk not likely to do so". By letter dated 26 January 2005, John Mollett, General Manager of the Hospital, advised Mr Little:

In speaking with Ms O'Donnell [Executive Director of the Medical Services Management Team] regarding your recent meeting, I accept that the Hospital has not yet been able to resolve all the concerns you have raised. I acknowledge that you feel a letter from Dr Falk may help in this regard. However, in the circumstances, the Hospital does not feel this would achieve the kind of outcome you have sought in your recent discussions, even if this were feasible.

Dr Falk now strenuously complains that he was not informed that Mr Little had made such a request at the time that it was made. He strongly objects to his loss of opportunity to respond. The complaint in respect of Mr Little continued to be the subject of investigation by the Hospital administration.

7. On 31 January 2005, Dr Clarkson commenced in the position of Acting Director of the renal unit.

8. At about this time, he was asked by Ms Rosemary O'Donnell (who had been present at the meeting with Mr Little on 25 January 2005) to review the allegations of Mr Little, by reference to a letter from Mr Little dated 24 January 2005 containing 16 attachments. There is no evidence as to the purpose of this review although Dr Clarkson was extensively cross-examined by Mr Purnell SC, for the plaintiff, suggesting that there was an ulterior agenda "to write a prescription as to how best to get rid of Dr Falk". In the result, having regard to all of the evidence, including Mr Purnell's cross-examination, I am not at all persuaded that Dr Clarkson had such an agenda or was aware of any such circumstance.

9. By email correspondence dated 2 and 3 February 2005, and reproduced at [10], Dr Clarkson provided his findings to Ms O'Donnell. Thereafter it appears that he had no further association with Mr Little's matter until early March 2005, when Ms O'Donnell again contacted him to ask him to recommend a suitable expert who could review Dr Falk's management of Mr Little's treatment. As a consequence, Associate Professor Faull was subsequently commissioned to report on Dr Falk's management of Mr Little's clinical complaints.

The events giving rise to the public interest disclosure

10. On both 14 and 15 July 2005, Dr Falk advised the Hospital that he would not be attending work, following medical advice. However, during the evening of Friday, 15 July 2005, Dr Falk attended the offices in the renal unit at the Hospital and, using a master key, entered Dr Clarkson's locked office for the purpose, on his evidence, of placing a leave form on the desk. In the course of doing so, Dr Falk said his attention was drawn to the printout of email correspondence between Dr Clarkson and Ms O'Donnell, dated 2 and 3 February 2005. That correspondence, in chronological order, is reproduced below:

From: Clarkson, Tony

Sent: Wednesday, 2 February 2005 4:24 PM

To: O'Donnell, Rosemary

Subject: Robert Little's complaint

CONFIDENTIAL

Rosemary,

I have reviewed the documentation provided to me regarding the matter of Robert Little and Dr. Michael Falk. In doing so I have had access to Mr Little's case notes. Mr. Little is [a] 31 year old man, single, who holds down a responsible job. He has a long history of renal problems having been born with urethral valves which caused chronic urinary outflow problems and eventually led to end-stage renal failure. He commenced Continuous Ambulatory Peritoneal Dialysis in 1985 and received a living donor renal transplant in 1987. this lasted until 1996 when its failure resulted in him returning to haemodialysis. He had recurring urinary tract problems while on dialysis and urological intervention was recommended before and at the time of repeat transplantation. He received a second living related renal transplant in September, 2002. It can be appreciated that in view of Mr Little's extensive past history, his knowledge and understanding of his renal problems was also extensive. He admits to being obsessive about his health, and whilst not common in general patients, this degree of obsession is seen sufficiently often in renal medicine as to be regarded as not unusual. An experienced nephrologist should be accustomed to the frustrations induced by such attention to detail by an intelligent patient and cope with it accordingly.

Mr Little's complaints surround a series of problems associated with the management of his second transplant. These include failure to diagnose Tacrolimus toxicity and associated urinary tract problems in March 2003. This despite noting decreasing renal function and not investigating the possibility of Tacrolimus toxicity. Fortunately Mr. Little took himself to Westmead hospital where these problems were sorted out with appropriate investigations. There is no indication that Mr. Little was referred back to Westmead and it is assumed he went there on his own volition. They also include failure to test for and diagnose Cytomegalovirus (CMV) infection until September 2003 when symptoms suggestive of its presence had been apparent for 3-5 months. Further Valgancyclovir prophylaxis against CMV, used because of the high likelihood of CMV infection, had been ceased in March 2003. Mr. Little's donor was shown to be CMV antibody positive prior to transplantation whereas Mr. Little himself was antibody negative indicating that he was at high risk of infection as the virus is transmitted in the grafted kidney. The third problem of significance is the failure to treat Mr. Little's established bone disease. He had suffered long standing kidney failure, had received corticosteroid medication and was known to have hyperparathyroid bone disease prior to transplantation all of which predispose to bone disease and fractures. Despite receipt of advice from Dr. Grahame Elder in January, 2003 that Fosamax and Calcitriol should be prescribed, this did not occur until Mr. Little once again went to Westmead in April, 2003.

A case could be made that if these matters were taken on an individual basis, no further action should be taken. However, when taken together, a strong case could be mounted against Dr. Falk on the grounds of negligence. To a degree this could be countered by taking into account Mr. Little's obsessive attention to detail and recurrent requests for information. In reality however, the problems probably reflect a personality clash between the complainant and Dr. Falk, which contributed to the omissions in management.

--- Original Message ---

From: O'Donnell, Rosemary

Sent: Wednesday, 2 February 2005 4:31 PM

To: Clarkson, Tony

Subject: RE: Robert Little's complaint

Thanks Tony happy to discuss further where to from here.

Rosemary

--- Original Message ---

O'Donnell, Rosemary

From: Clarkson, Tony

Sent: Thursday, 3 February 2005 8:19 AM

To: O'Donnell, Rosemary

Subject: RE: Robert Little's complaint

Rosemary From my experience this would be difficult to get up at the Medical Board unless presented with a raft of similar complaints. For example it would need expert witness report and cross examination and every expert witness in Australia knows about the problem and could be perceived as biased. If there are other examples it might be worth sending them with this complaint to the Board. but if not I think I would sit on it and use it in the future when and if other complaints come in. Tony

11. Dr Falk photocopied the email correspondence before leaving the Hospital. He remained on certificated stress leave until 12 August 2005, but continued to access the Hospital, on occasions, in the evenings.

12. On 20 July 2005, Dr Falk's solicitors, acting on behalf of Dr Falk, sent a letter to the ACT Ombudsman. The letter, entitled `Public Interest Disclosure', purported to be a disclosure pursuant to the Public Interest Disclosure Act 1994 (ACT). What was said to be the disclosable conduct was based, as I understand it, upon the email correspondence set out above which is purportedly summarised as to its effect under the heading "The disclosure", but it is not set out in its terms. After setting out that summary, the particulars given of partiality and dishonesty in that letter were:

In these circumstances Dr Clarkson has exercised his official functions with partiality as follows:

(a) in recommending that a patient's complaint as to the standard of Dr Falk's clinical care should be held back in private to be used against Dr Falk in the future should other complaints emerge;

(b) in conducting himself as Director of the Unit, knowing the nature of the complaints made against Dr Falk on 1 April 2005, without apparently disclosing to relevant people the content of the advice he provided to Ms O'Donnell in early February;

(c) by expressing views adverse to Dr Falk's continued employment at the Canberra Hospital in circumstances and at a time by which no person could have formed a view with impartiality.

Further, Dr Clarkson appears to have exercised his official functions dishonestly in:

(a) nominating Associate Professor Faull to conduct an "independent" enquiry into Dr Falk's conduct when he knew that Associate Professor Faull could not conduct himself independently;

(b) permitting Clayton Utz to be instructed that he did not know of Dr Falk before his commencement of employment at the Canberra Hospital when his communications with Ms O'Donnell indicate that immediately upon his commencement he was pursuing an agenda adverse to Dr Falk's interests; and

(c) assuming Dr Sherbon is acting in good faith, failing to disclose to Dr Sherbon that he had previously conducted a review of Mr Little's clinical file and had come to a conclusion which had been taken into account in preparing the allegation against Dr Falk which it now seems he is to participate in coming to a conclusion on.

The letter went on to claim:

Further, each of the matters set out above constituted a breach by Dr Clarkson of his duties under section 9(b) and (f) of the Public Sector Management Act of the Territory in that it constituted a failure to act impartially towards Dr Falk and taken together constituted harassment of Dr Falk. Those matters are disciplinary offences for the purposes of the Public Interest Disclosure Act by reason of the operation of section  186 of the Public Sector Management Act.

Ms O'Donnell acted dishonestly and with partiality in the exercise of her official functions when she indicated to Associate Professor Faull that she had provided the full file in relation to Mr Robert Little when she had omitted the communications she had had with Dr Clarkson.

None of these matters that I have reproduced are other than comment upon the primary material which, as I have said, is not specifically set out. How justified the comment is, or whether the primary material supports these contentions, will be a matter for determination by those to whom the complaint is directed. The important point is that the information is not specifically disclosed, only the views of the author of the complaint as to its effect and purport are. Whether the letter constitutes a sufficient "disclosure of information" is not in issue before me but the letter has all the hallmarks of a gambit taken under legal advice in the long running and acrimonious relationship between Dr Falk and the Hospital. The assertions made in the letter do not let the material speak for itself and, in my view are, on the face of it, strained and extravagant. However, the defendants do not take issue with the purport of the letter and, accordingly, I treat it on those terms.

The letter was also forwarded to the solicitors for ACT Health, and was drawn to the attention of Dr Clarkson on 4 August 2005.

The complaint

13. Having read the letter, Dr Clarkson contacted Mr Mollett, and, by letter dated 4 August 2005, advised him that he believed the information contained in Dr Falk's disclosure had been sourced from documents located in his locked office on the evening of 15 July 2005. This letter, which is described in the statement of claim as:

... a complaint lodged by the Second Defendant alleging that between 4.00 pm on Friday 15 July 2005 and the start of business on Monday, 18 July 2005 the Plaintiff obtained information illegally from the office of the second defendant.

I set out the letter:

Dear John,

I append a copy of a letter addressed to the Ombudsman Prof John McMillan from Dr Michael Falk's lawyer Mr. Tom Brennan. Information contained in this letter can have come from only one source---my office.

On Friday July 15^th, I had to leave the hospital hurriedly around 4pm to travel to Sydney and left documents in a folder next to the computer keyboard in my locked office. These documents included my report of Feb 2^nd, 2005 to Rosemary O'Donnell concerning the complaint by a patient Mr Colin Little against Dr Falk.

On return to work on Monday July 18^th I found applications for sick leave from Dr Falk on the keyboard of my computer. As the office was locked on my departure, Dr Falk must have gained access to it over that weekend. In the light of the timing of the letter from Mr Tom Brennan to the Ombudsman, Prof McMillan, dated July 20^th, it seems highly likely that the information contained in that letter was obtained illegally at the time Dr Falk was in my office.

There has been a further intrusion into my office by Dr Falk, on or soon after 5.44pm, Sunday July 31^st. Both these intrusions into my office have been at times when Dr Falk has been away from work on sick leave. I object strongly to having to work under such circumstances of mistrust.

Yours sincerely,

Dr A R Clarkson

A/g Director, Renal Services

This matter is referred to in the statement of claim as the second unlawful reprisal, although it is the first action in time that the plaintiff characterises as an unlawful reprisal.

The directions

14. It would appear that Mr Mollett then informed Mr Cormack, who instructed Clayton Utz, the solicitors for ACT Health to give directions to Dr Falk through Dr Falk's solicitors by letter dated 4 August 2005 in the following terms:

We act for ACT Health.

We refer to your letter of 29 July 2005.

In your letter under the heading "Attachment 1", you state that your Client declines to answer the following questions:

1. How and where your Client came into possession of information which allegedly demonstrates significant impropriety by Dr Clarkson in his dealings with the complaint by Mr Little as conveyed in your letter to the Ombudsman on 20 July 2005.

2. If the information did or did not come into your Client's possession while he was in Dr Clarkson's office at The Canberra Hospital on the evening of Friday 15 July 2005.

Direction 1

Our Client in the person of Mr Mark Cormack, Deputy Chief Executive, Clinical, directs your Client to answer the above Questions 1 and 2.

Direction 2

Our Client in the person of Mr Mark Cormack directs your Client to answer the following two questions:

3. Whether your Client came into the possession of any other information while he was in Dr Clarkson's office on the evening of Friday 15 July 2005 or any other time outside of normal office hours.

4. What your client was doing when he accessed his workplace at The Canberra Hospital outside of normal office hours on each such occasion, whether he accessed any offices other than his own, and whether he used, photocopied and/or removed any documents belonging to The Canberra Hospital. If such documents were used, photocopied or removed, please identify each document.

Our Client has reason to believe that while on certificated stress leave your Client is continuing to access offices and/or rooms including other than his own office at The Canberra Hospital outside of normal office hours.

Direction 3

Our Client in the person of Mr Mark Cormack directs your Client not to access any offices and/or rooms in The Canberra Hospital until such time as he is fit and ready to return to work, excluding accessing The Canberra Hospital's medical facilities to obtain assistance for himself and/or members of his family including in an emergency.

Our Client has reason to believe that your Client already has in his possession documents the subject of the FOI request dated 20 July 2005 that you lodged on his behalf. The request seeks copies of all documents created between 1 February 2005 and 8 February 2005 inclusive being records of communications between two or more of the people listed below and relating to Dr Michael Falk of the treatment of the patient Robert Little:

* Dr Tony Clarkson;

* Ms Rosemary O'Donnell;

* Mr John Mollett;

* Mr Mark Cormack;

* Dr Tony Sherbon;

* Mr Doug Jackman

Direction 4

Our client in the person of Mr Mark Cormack directs your Client to answer the following questions:

5. If your Client has now or has had in his possession at any time in the past 3 months any document created between 1 February 2005 and 8 February 2005 inclusive that records communications between two or more of the people specified in the FOI request dated 20 July 2005 and relating to himself and the treatment of the patient Robert Little.

6. If the answer to Question 5 is "yes", how and where and when and why he came into possession of them.

Failure by your Client to comply with the above four directions will be taken by ACT Health to constitute misconduct.

...

The statement of claim alleges that the directions given in this letter constitute an unlawful reprisal under the Act and the statement of claim describes this as the first unlawful reprisal, although it is consequent upon that which the plaintiff characterises as the first of the actions about which complaint is made.

The referral of the complaint for investigation

15. On 20 July 2005, Mr Grills, of the firm Quality Management Solutions, had been tasked by Mr Cormack to undertake the investigation for ACT Health into allegations concerning Dr Falk that I had referred to earlier. This was to be a new process conducted for the disciplinary process authorised by the ACT Health Portfolio Interim Medical Officers Agreement 2004-2005. The earlier process had been set aside following the Clayton Utz letter of advice of 23 May 2005 and proceedings to challenge it in the Australian Industrial Relations Commission. On 24 August 2005, Clayton Utz, on behalf of Dr Tony Sherbon, Chief Executive, ACT Health, referred the complaint that Dr Clarkson had made concerning Dr Falk to Mr Grills for investigation as part of the investigation that he had been requested to undertake on 20 July 2005. The plaintiff's application describes this as a referral by the first defendant, the ACT. This referral is also claimed to be an unlawful reprisal and is described in the statement of claim as the third unlawful reprisal.

The plaintiff's application

16. The plaintiff's application is made under s 31(1) of the Public Interest Disclosure Act 1994 (ACT) which provides,

(1) If, on receipt of an application under section 30, a court is satisfied that a person has engaged or is proposing to engage, in--

(a) an unlawful reprisal; or

(b) conduct that amounts to or would amount to--

(i) aiding, abetting, counselling or procuring a person to engage in an unlawful reprisal; or

(ii) inducing or attempting to induce, whether by threats, promises or otherwise, a person to engage in an unlawful reprisal; or

(iii) being in any way, directly or indirectly, knowingly concerned in, or party to, an unlawful reprisal;

the court may--

(c) order the person to take specified action to remedy any detriment caused by the unlawful reprisal; or

(d) grant an injunction in terms the court considers appropriate.

The plaintiff seeks declarations that each of the complaint, the directions and the referral described above was an unlawful reprisal. In addition, orders were sought that the complaint, directions and referral be withdrawn and the defendants restrained from taking any further action in relation to these matters.

The Public Interest Disclosure Act 1994 (ACT)

17. The Act protecting public interest disclosures was introduced on the basis of ensuring open and accountable government in the ACT. In her speech (Hansard, 23 February 1994, at 139), the then Leader of the Opposition, Ms Carnell, set out the objectives of the Bill that she was introducing in saying:

The Public Interest Disclosure Bill tabled today will establish procedures to encourage employees to disclose any corrupt, illegal or improper conduct or to identify wastage of public resources. It will protect people who come forward from any reprisals they may face because of their disclosures. It will encourage any disclosures made about corrupt or improper conduct and make sure that they are properly investigated and acted upon. It will protect persons who resist any effort by an employer to make them commit a crime or conceal an offence or wastage.

Although the plaintiff's submissions describe the legislation as "remedial", it is clear from the second reading speech that the purpose of the Act was to facilitate and regulate the manner of making public interest disclosures with measures to protect persons who make such disclosures.

18. Section 3 of the Act defines "public interest disclosure" 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; or

(b) public wastage; or

(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.

(My emphasis)

19. The relevant belief referred to in the definition is one which "tends to show" one or more of the matters in paras (a)-(d). It must be on reasonable grounds. It requires more than a mere possibility of the matters set out or a mere belief that the relevant circumstances need to be investigated.

20. What amounts to "disclosable conduct" is set out in s 4 of the Act which provides:

(1) For 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; or

(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) Subsection (1) (a) applies 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; or

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

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

(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 exercise of official functions (whether for the benefit of that person or agency or otherwise); or

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

(3) In this section:

criminal offence means an offence against a law in force in the ACT.

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

21. One of the important provisions to protect innocent persons from malicious and false allegations was contained in s 34 of the original Act. That section was repealed upon the enactment of Part 3.4 of Chapter 3 of the Criminal Code 2002 (ACT) which relates to the giving of false or misleading statements, information and documents to the Territory or a person exercising a function under Territory law.

22. I mention this because it seems to me that it may be that the letter by Dr Falk's solicitors to the Ombudsman is a disclosure by the solicitors and by Dr Falk insofar as he authorised the solicitors to make it, but only of the circumstances to which the letter averts not the conclusions to be drawn from those circumstances. It may not evidence Dr Falk's actual belief in the matters particularised as constituting partiality and dishonesty which, in the letter of disclosure, are neutrally expressed as to whether they are Dr Falk's or the solicitor's view, or both. Although the solicitors may say that they are acting solely as Dr Falk's agents, that must be inferred from the bare expression that they act for Dr Falk. Questions may then arise as to the applicability of the provision, now under the Criminal Code 2002, which relates to a person making false or misleading statements. There is a case to be made that public interest disclosures that are manifested in this way are made to avoid, or at least make more difficult, the enforcement of the requirement that such statements be true and not misleading. That would not be so if, under cover of a solicitor's letter, a person gave a signed statement or deposition as to the matters of fact that the person wished to bring to the attention of the relevant authority. These observations are not made to seek to deter persons from seeking legal advice concerning the making of public interest disclosure, but to underline the responsibility that should be taken for the making of such disclosures and the desirability that the disclosure be clearly that of the maker.

23. However, for the purposes of these proceedings, Mr Tracey QC, for the defendants, while denying any wrongdoing on Dr Clarkson's or Ms O'Donnell's behalf, accepted that the annexures to the letter written by the solicitors and the email correspondence which was not annexed to that letter, caused Dr Falk to believe that the information that he held "tended to show disclosable conduct so as to satisfy the definition in s 4 of the Act of public interest disclosure". That concession makes it unnecessary for me to further analyse the letter that is said to be the public interest disclosure.

The Ombudsman's involvement

24. At that point it seemed to me that I, at least, needed a contradictor to enable me to confirm whether the letter written by the plaintiff's solicitors was going to be treated as a public interest disclosure. I requested that the Ombudsman, to whom the letter had been directed, give me the benefit of his preliminary views. He did so.

25. In his response to me, the Ombudsman observed:

6. I have decided, after noting the additional material provided by the solicitors for Dr Falk, that the letter of 20 July 2005 from the solicitors makes a public interest disclosure for the purposes of the PID Act [Public Interest Disclosure Act 1994]. I would have to conduct an investigation to reach a finding as to whether that disclosure is substantiated, both as to the particulars and evidence given in support of the disclosure, and in meeting the statutory criteria in the PID Act. My present view is that, before conducting an investigation of Dr Falk's public interest disclosure, I need to resolve two other issues:

(a) whether ACT Health is the more appropriate proper authority to act on the disclosure. It is my intention, as a first step in resolving that issue, to hold discussions with ACT Health and the solicitors for Dr Falk; and

(b) whether the current proceedings (SC 591 of 2005) before the Court have any bearing on whether and how I should investigate Dr Falk's disclosure. Many of the particulars and evidence referred to in the letter of 2 November 2005 from Dr Falk's solicitors are referred to in the Statement of Claim and further documents in the current proceedings. It is possible that the Court will reach a finding on some of the issues in contention that form part of Dr Falk's public interest disclosure. It is possible also that any order made by the Court in the proceedings could have a practical bearing on the scope or the utility of any investigation that I might conduct into the public interest disclosure.

That seems to me to be an appropriate approach. I do not wish to place myself in a position to adjudicate on the merits of the complaint but at least I need to know that it was being treated as a public interest disclosure. As far as any findings that I may make are concerned, I would not wish to make any findings which would constrain the Ombudsman in his consideration of the matter and I understand this to accord with the view of the defendants as to the approach that I should take.

26. For these reasons, and having regard to the views that I take as to the other aspects of this matter, I am prepared to accept that the solicitor's letter could have amounted to a public interest disclosure within the meaning of the Act, but my acceptance of this proposition should not be taken as determining whether the letter sufficiently did so and only for the purpose of these proceedings do I accept the defendants' concession that the plaintiff had reasonable grounds for the belief that is now sought to be asserted that he held.

The application for declarations

27. The plaintiff seeks declarations that the defendants engaged in unlawful reprisals. Section 25(1) of the Act makes it a criminal offence to "engage, or attempt or conspire to engage, in an unlawful reprisal" punishable by fine and imprisonment for one year. Section 25(2) of the Act provides defences in certain circumstances in respect of such an offence. In particular, s 25(2)(a) provides a defence of just and reasonable grounds for engaging in the proscribed conduct. In the case before me, neither party sought to argue the case on the basis of the commission of a criminal offence. The fact of criminal conduct being involved is an important matter in a court exercising its discretion to grant declaratory relief (cf Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 20). Because of the fact that there are criminal consequences in respect of such alleged conduct, and any declaration made might influence such proceedings, and in the absence of special or exceptional circumstances, I would not have been prepared to make such a declaration as the plaintiff seeks. As it transpires, the question does not arise.

Unlawful reprisals

28. Accepting that the plaintiff has made a public interest disclosure, the issue is whether the defendants have engaged in an "unlawful reprisal" in terms of the Act. That term is defined in 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.

The term "detriment" is defined to mean:

(a) injury, damage or loss; or

(b) intimidation or harassment; or

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

29. In the present case, the plaintiff's claim is that the defendants' actions caused him detriment. The aspect of threatening to cause detriment is specifically rejected by the defendants. In the written submissions on behalf of the plaintiff, the plaintiff says:

In any event, the present Plaintiff does not complain of a threat to cause him detriment; his complaint is that he has suffered detriment.

The plaintiff's case, therefore, is put on the basis that the conduct complained of actually caused detriment. Nevertheless, it is generally unclear just which aspect of the definition of detriment the plaintiff is seeking to rely upon and I deal with this aspect later on.

Causation

30. Although the definition of unlawful conduct baldly asserts that belief that a person has made a public interest disclosure is sufficient to establish detrimental conduct towards that person, the provision should not be construed in such a broad way. In Berry v Ryan [2001] ACTSC 11; [2001] 159 FLR 361 at 366, Crispin J observed, rightly in my view:

Whilst par (a) of the definition of "unlawful reprisal" uses the phrase "in the belief" rather than the word "because" which is used in par (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 Public Interest Disclosure 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 par (b) is directed to the issue of motivation and it would seem incongruous if par (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.

31. As I understand the written submissions that have been made in this matter, both parties seem to accept that the unlawful reprisal that a party has engaged in must be because of the belief that the subject has made a public interest disclosure. I say "seem to accept", because the plaintiff's written submissions assert that Dr Clarkson's complaint is "clearly made in the belief that the plaintiff has made a [public interest disclosure]". I do not regard Dr Clarkson's "appending of the letter addressed to the Ombudsman" as an admission or concession that it caused his complaint. To the contrary, Dr Clarkson's evidence was quite clear. His concern was the intrusion into his locked office. He was pressed in cross-examination before me that the complaint was only made, in effect, because of Dr Falk's public interest disclosure. I accept his answers to that challenge. His position can be summed up in the following questions and answers:

No, it's only when the public interest disclosure is made that you complained?---Correct.

And that's because you were found out about your views about him being strong case against him in negligence that you never told him about isn't it - - - ?---My complaint sir, was because I was angry that he had entered my office.

That you'd been found out about expressing the view that you dishonestly [sic] and partially kept from him, that's the simple truth isn't it Doctor?---My complaint was about him entering my office when he was on sick leave late at night, my complaint was about him entering my office and taking - looking through my files and copying them, and I wrote that complaint because I didn't want - I wanted to restrain him from entering my office again. I also wrote that complaint because there had been previous complaints about unsatisfactory conduct by Dr Falk and I wanted to put it in writing that this was - I felt was intolerable and professionally unacceptable.

I accept that as the position.

32. Dr Clarkson was concerned at the circumstance that that particular documents had been copied from his locked office. He was entitled to express that concern. Irrespective of the legalities in Dr Falk obtaining access to his office, I do not regard his concern as anything other than genuine. If Dr Clarkson left his office locked, there was, on the face of it, no justification for anyone to access it. The proposition that certain staff had keys could not justify unrestricted access by anyone to a locked office without some evidence that there was a general understanding of access in that circumstance. There was no evidence of such a general understanding. No proper justification of Dr Falk's actions in doing so have been advanced. The circumstances gave rise to an issue proper to be brought to the attention of the hospital administration.

33. I do not regard the letter to the Ombudsman as having any influence on Dr Clarkson's actions except as providing an inference that Dr Clarkson was entitled to draw that Dr Falk had entered his locked office. It certainly cannot be said that the letter to the Ombudsman was the sole cause of Dr Clarkson's complaint and nor, in my view, can it be said to be a dominant cause even if it could be said to be a cause at all (cf Berry v Ryan (supra) at [24]).

Detriment

34. It is said that the action of Dr Clarkson caused detriment to the plaintiff. The written submissions on behalf of the plaintiff refer to Patrick Stevedores Operations (No. 2) Pty Ltd v MUA [1998] HCA 30; (1998) 153 ALR 643 and the interpretation given to s 298K(1)(c) of the Workplace Relations Act 1996 (ACT) which is concerned with the alteration of the position of an employee to the employee's prejudice. I was referred to the court's comments at 647 [4]. The characterisation of the subparagraph by the court in the particular legislation is of no real assistance to me in considering the effect of the definition of detriment in the quite different Act that I am now considering. I accept that the definition under consideration is a broad one, but I see no reason to expand its meaning beyond what the words of the definition say.

35. The plaintiff does not submit anything other than that he has suffered detriment as a consequence of Dr Clarkson's complaint. This is not a case of conduct that threatens to cause detriment but one where the plaintiff specifically says that the detriment has been caused. In the plaintiff's written submissions, that detriment is said to be because:

He is now subject to a purported disciplinary investigation into that complaint. That is sufficient to amount to detriment under the ... Act.

36. However, it is the conduct which must cause the detriment. Dr Clarkson's conduct is in complaining to Mr Mollett. His complaint was a strong objection to having to work under circumstances of mistrust. It did not suggest any action. The expression of such an objection cannot come within paragraphs (c) and (b) of the definition of "detriment" in the Act. Nor is it, in my view, capable of being characterised as "discrimination, disadvantage or adverse treatment in relation to career, profession, employment ...".

The directions

37. The action taken by Mr Mollett was to inform Mr Cormack of Dr Clarkson's complaint and the solicitors for the ACT Health gave directions on Mr Cormack's behalf as a consequence. The legalism of Dr Falk's public interest disclosure which borders on the sophistic is then matched by the response by the solicitors for ACT Health. No authority is cited for the directions that the letter purports to give, but I assume, in the absence of objection or submission by the plaintiff, that such directions as are contained in the solicitor's letter, are lawful and non-compliance could result in disciplinary action. These directions are akin to administering interrogatories in a 19^th Century Chancery proceeding and described by Chancery practitioners as "scraping the defendant's conscience" (Simpson, Bailey & Evans, Discovery and Interrogatories (2d) at 13). The giving of these directions in the course of what is clearly an ongoing dispute, has all the indicia of tactical manoeuvring for some perceived forensic advantage. That seems to me to be every reason for the plaintiff (or his solicitors) to be suspicious of the motives for asking these matters of the plaintiff. However, that does not necessarily make the conduct in giving the directions a cause of detriment to the plaintiff.

Direct liability

38. It is said that the first defendant, the Australian Capital Territory, must be liable for the actions of Mr Cormack that took place through the medium of the solicitors acting for ACT Health. That seems to be admitted both in the pleadings and in the defendants' submissions. Nevertheless, unless it can be established that the giving of the directions was caused by the plaintiff's letter to the Ombudsman, and that they caused detriment to the plaintiff as defined in the Act, the plaintiff will not have made out his case.

Causation in respect of the directions

39. Similar reasoning to that employed in respect of Dr Clarkson's complaint applies to the aspect of causation in respect of the conduct constituted by the directions given to the plaintiff. The plaintiff's written submissions rely only upon the terms of the first direction given which is set out in those submissions as:

`How and where your Client came into possession of information which allegedly demonstrates significant impropriety by Dr Clarkson in his dealings with the complaint by Mr Little as conveyed in your letter to the Ombudsman on 20 July 2005'.

It is said that it is sufficient that Mr Cormack was aware of that letter. But Mr Cormack had not seen the terms of that letter and was adamant that his directions were not given in response to Dr Falk's letter to the Ombudsman but were only responsive to Dr Clarkson's complaint of Dr Falk's intrusion into his office. The plaintiff has failed to establish that Mr Mollett's conduct in sending the letter that he did was caused by the plaintiff's letter to the Ombudsman.

Detriment in respect of the directions

40. The claim by the plaintiff that these directions caused him detriment in terms of the Act, is related to a claim that he makes in his affidavit that the fact of the directions added to the stress that he was already suffering from his work situation.

41. That is not a claim, in its bare form, that I would think sufficient to establish injury, damage or loss for the purpose of the definition. Nor does the direction not to attend work while on sick leave constitute, on the face of it, a disadvantage or adverse treatment to him in his employment as is asserted in the written submissions. It seems to me to be incongruous to suggest, as the written submissions on behalf of the plaintiff do, that such a direction is not normal practice in the public sector. The purpose of sick leave is, amongst other things, to relieve the employee from his employment obligation to attend the workplace. An issue of "normal practice", as asserted by the plaintiff, just does not arise. There is no detriment caused to the plaintiff as a consequence of such a direction.

The referral for investigation

42. The plaintiff claims that on or about 24 August 2005, the first defendant, the Australian Capital Territory, referred Dr Clarkson's complaint to Mr Grills, an investigator appointed by the first defendant on or about 20 July 2005 to investigate allegations against Dr Falk. As it turns out, the referral was made by solicitors instructed by Dr Tony Sherbon, Chief Executive, ACT Health. It consisted of the forwarding to the investigator of the letter of complaint of Dr Clarkson set out in [13] above.

43. Mr Cormack, in his affidavit, deposed to the fact that:

On 24 August 2005 I directed that Dr Clarkson's complaint be referred to Mr Peter Grills for investigation. I did so because I regarded Dr Falk's unauthorised entry into Dr Clarkson's office on the night of 15 July 2005 and taking of information from Dr Clarkson's office, if proved, to be a serious matter. The fact that Dr Falk's solicitors treated information apparently taken by Dr Falk that night as a basis for making a public interest disclosure had no bearing of any kind upon my decision to refer Dr Clarkson's complaint to Mr Grills for investigation. I regarded that, and still regard it, as an entirely separate issue.

There is just no material upon which I can draw an inference that the conduct in making that referral was caused by the letter to the Ombudsman on Dr Falk's behalf. The plaintiff's written submission drew attention to the fact that Dr Sherbon was not called by the defendants to give evidence. Reference was made to Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 for the proposition that Dr Sherbon would not have assisted the defendant's case. That is not the issue. It is for the plaintiff to establish that there was the requisite belief that a public interest disclosure had been made that motivated the conduct. In the present case, that does not arise as an inference from the conduct relied upon, namely the letter referring for investigation the complaint made by Dr Clarkson. The inference to be naturally drawn is that Dr Clarkson's letter is the cause of the conduct in referring the matter for investigation. There is no justification to not accept Mr Cormack's reason.

44. That is reinforced by the provision in s 36 of the Act which provides:

A person's liability for his or her own conduct is not affected by the person's disclosure of that conduct in a public interest disclosure.

45. The letter from Dr Clarkson complained about intrusions into his office. That is a matter that s 36 of the Act makes clear may be the subject of investigations notwithstanding its association with a public interest disclosure. The intrusions into Dr Clarkson's office appear to be the cause of the conduct in referring the matter for investigation and which is the matter that the plaintiff takes exception. In light of Mr Cormack's evidence and nothing to impute any different motive to Dr Sherbon on whose behalf the letter was written, I am not prepared to infer any other cause. In not being able to establish that the public interest disclosure caused the conduct, the plaintiff's claim for a remedy must fail.

46. The contention of the plaintiff suffering detriment as a consequence is just as illusory. The detriment is said, in the written submission, to "being subject to a disciplinary investigation". The plaintiff was already the subject of such an investigation. There is no disadvantage that I can see to the plaintiff as a consequence of the referral of a further complaint in these circumstances.

Conclusion

47. For the foregoing reasons, the plaintiff's application should be dismissed.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 7 July 2006

Counsel for the plaintiff: Mr F J Purnell SC with Mr M Spry

Solicitor for the plaintiff: Corrs Chambers Westgarth

Counsel for the defendants: Mr R R S Tracey QC with Mr G C McCarthy

Solicitor for the defendants: ACT Government Solicitor

Date of hearing: 26 September 2005

Date of judgment: 7 July 2006