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Supreme Court of the ACT |
Last Updated: 16 March 2009
PETER NELIPA v DR JAMES ROBERTSON AND COMMONWEALTH OF AUSTRALIA
[2009] ACTSC 16 (6 March 2009)
COSTS – discontinuance – effect – whether defendant should pay discontinuing plaintiff’s costs – considerations – turns on its own facts – Court Procedures Rules 2006 (ACT) r 1163(2).
COSTS – model litigant obligations – effect.
COSTS – pre-trial procedures – effect – freedom of information requests – letter before action – response to inquiries.
Australian Federal Police Act 1979 (Cth), s 26E(2)(b), 72
Freedom of Information Act 1982 (Cth)
Complaints (Australian Federal Police) Act 1981 (Cth), s 6
Judiciary Act 1903 (Cth), s 55ZF
Court Procedures Rules 2006 (ACT), rr 1160(1), 1163(2)
Legal Services Directions 2005 (Cth)
Dickson v Whiddett [2001] FCA 585
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Director-General of Education & Ors v Suttling [1987] HCA 3; (1987) 162 CLR 427
Chapman v Australian Federal Police Commissioner (1983) 76 FLR 428
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Foots v The Southern Cross Mine Management Pty Ltd & Ors [2007] HCA 56; (2007) 241 ALR 32
Knight & Anor v F P Special Assets Limited [1992] HCA 28; (1992) 174 CLR 178
Probiotec Ltd and Ors v University of Melbourne and Ors [2008] FCAFC 5; (2008) 166 FCR 30
One.Tel Limited & Ors v Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548
Verna Trading Pty Limited v New India Assurance Co Ltd [1991] 1 VR 129
Melbourne Steamship Co Ltd v Moorhead [1912] HCA 69; (1912) 15 CLR 333
Commonwealth of Australia v Smith [2007] NSWCA 168
Kelson & Anor v Forward [1995] FCA 1584; (1995) 60 FCR 39
Scott v Handley (1999) 58 ALD 373; [1999] FCA 404
Commonwealth of Australia v Smith [2007] NSWCA 168
Priest v New South Wales [2007] NSWSC 41
Wodrow v Commonwealth of Australia [2003] FCA 403; (2003) 129 FCR 182
Badraie v Commonwealth of Australia & Ors [2005] NSWSC 1195; (2005) 195 FLR 119
Cultivaust Pty Ltd v Grain Pool Pty Ltd [2004] FCA 1568
Pacific National (ACT) Ltd v Queensland Rail [2005] FCA 535; (2005) 215 ALR 544
Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537
JUDGMENT
No. SC 516 of 2000
Judge: Refshauge J
Supreme Court of the ACT
Date: 6 March 2009
IN THE SUPREME COURT OF THE )
) No. SC 516 of 2000
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: PETER NELIPA
Plaintiff
AND: DR JAMES ROBERTSON
First Defendant
AND: COMMONWEALTH OF AUSTRALIA
Second Defendant
ORDER
Judge: Refshauge J
Date: 6 March 2009
Place: Canberra
THE COURT ORDERS THAT:
1. The plaintiff have leave to discontinue the proceedings.
2. The plaintiff file and serve a notice of discontinuance of the proceedings within 14 days.
3. Upon the filing of the notice of discontinuance:
(a) the plaintiff pay the defendants' costs of the proceedings up to the end of the day on which the plaintiff’s lawyers received and perused the second defendant’s affidavit as to documents sworn on 14 March 2002, and also the costs of the inspection of the documents disclosed in that affidavit as to documents; and
(b) the defendants pay the plaintiff’s costs of the proceedings from the end of the day on which the plaintiff’s lawyers received and perused the second defendant’s affidavit as to documents sworn on 14 March 2002, other than the costs of the inspection of the documents disclosed in the second defendant’s affidavit as to documents sworn on 14 March 2002 and save for the costs of this application.
4. Each party pay their own costs of this application.
1. For many years the plaintiff, Peter Nelipa, was employed by the Australian Federal Police (AFP) in Forensic Services.
2. On 12 May 1998, he was handed a notice signed by Deputy Commissioner A M Whiddett (the 26E Notice) which included concerns to be taken into consideration in relation to possible action under s 26E(2)(b) of the Australian Federal Police Act 1979 (Cth) as it then stood. That paragraph permitted the Commissioner of the AFP to end the term of appointment of a person appointed as a member of the AFP.
3. Section 26E of the Act “confers a comparatively wide discretion on the Commissioner”, though the exercise of those powers are subject to the rules of natural justice or, as it is now commonly termed, “procedural fairness”: Dickson v Whiddett [2001] FCA 585 at [42], [107]. Clearly, the 26E Notice was intended to discharge this obligation of natural justice and give Mr Nelipa the opportunity to respond to the matters that the Commissioner would take into account in deciding whether to terminate Mr Nelipa’s appointment under the section.
4. Mr Nelipa chose not to respond to the notice and, on 19 May 1998, his appointment was terminated by Assistant Commissioner Mills (under delegation) as from 1 July 1998. There was, in these proceedings, an allegation that Mr Nelipa’s decision not to respond was caused by intimidation by the first defendant, Dr James Robertson. Mr Nelipa subsequently took legal advice and, in circumstances that will be more fully explored below, commenced these proceedings. Following discovery and provision of certain material, Mr Nelipa was advised that he no longer had reasonable prospects of success in the proceedings and he applied for leave to discontinue them. That leave was not necessary (r 1160(1) of the Court Procedures Rules 2006 (ACT)) but for the fact that Mr Nelipa did not want the inevitable consequence of a discontinuance without leave, which was that he would have to pay the defendants’ costs (r 1163(1)). Under r 1163(2), however, the court is given power to make “the order for costs it considers appropriate” where the court gives leave to the party to discontinue. Accordingly, Mr Nelipa made an application for leave to discontinue and sought an order that the defendants pay his costs. That leave was not opposed, though the order for costs was strenuously opposed.
The facts
5. In order to understand Mr Nelipa’s application, it is unfortunately necessary to detail at some length the facts of the matter and the course of the proceedings. The material before me enables me to make the following findings about the facts involved in the case. Much of that material came from documents produced on discovery (the discovered documents) or documents produced on subpoena (the subpoenaed documents). I also had the benefit of affidavits made by Jason Dean Parkinson sworn 13 February 2006, by Ian David Bradfield sworn 7 February 2007 (which annexed, inter alia, a draft affidavit of Mr Nelipa), by Belinda Kate Hayward affirmed 17 September 2007, by Joan Elizabeth Lucas sworn 17 September 2007 and by Mr Nelipa sworn 1 August 2008.
(a) Mr Nelipa’s career
6. Mr Nelipa was first appointed to the New South Wales Police Force in 1971. In 1973 he transferred to the then Police Force of the Australian Capital Territory. On 19 October 1979, when the AFP was established, he was deemed to have been appointed to the AFP: s 72 of the Australian Federal Police Act 1979 (Cth).
7. In September 1977 he had commenced in the “Scientific Branch”. Though interrupted once, he had a long career in that area, including undergoing a number of courses, being awarded and undertaking a Churchill Fellowship and undertaking a number of significant investigations including that into the death of Assistant Commissioner Colin Winchester
8. The interruption was in January 1987 when he transferred to the International Division of the AFP but returned to scientific work in the Crimes Scene Branch in Forensic Services in 1988.
9. In September 1989, as a result of a difference of opinion with the officer responsible for the investigation into the death of Mr Winchester, he was transferred to the Training and Standards Branch within Forensic Services. Mr John Horswell was the officer in charge of this Branch.
10. It is clear that Mr Nelipa developed an animus towards Mr Horswell. I cannot say whether it was justified or not, nor can I make a finding on any of the specific incidents raised or referred to in the various documents.
11. At the time, Dr James Robertson, the first defendant, was the relevant senior officer in Forensic Services. In part because of Dr Robertson’s perceived close association with Mr Horswell, Mr Nelipa also developed at least a suspicion of, if not an animus towards, Dr Robertson which certainly developed as antagonism later.
12. In September 1990, Mr Nelipa was transferred back to the Crime Scenes Branch. In September 1991 Federal Agent M J McGregor became the officer in charge of that Branch. Although nothing in the material before me suggests that Mr Nelipa saw himself as having any difficulties with Mr McGregor, a confidential minute prepared by Mr McGregor on 6 April 1998 among the second defendant’s discovered documents, shows that Mr McGregor had considerable difficulties in the management of Mr Nelipa and that while his scientific performance obviously had much to commend it, Mr McGregor perceived him as inflexible, controlling, with poor inter-personal skills and unable to foster a trusting relationship within his team. I am, of course, unable to determine the validity of those views.
13. Nevertheless, at least so far as it appears from the documents, difficulties arose when, in November 1995, Mr Horswell was made officer in charge of Crime Scenes and became directly responsible as Mr Nelipa’s supervisor. A note prepared by Mr Nelipa and amongst the plaintiff’s discovered documents, shows a long list of complaints against what Mr Nelipa saw as unsatisfactory interactions with, and decisions about him taken by, Mr Horswell. Amongst the second defendant’s discovered documents is also some material which sets out Mr Horswell’s version of some of those instances. Unsurprisingly, they show a different picture. Again, I am unable to determine which version is correct.
14. While his record shows that Mr Nelipa was a diligent forensic officer and gaining significant qualifications during his period with the AFP, he was certainly perceived by his supervisors and, one can glean from the documents, at least some of his co-workers, as not being an easy man with whom to work and as appearing at least from the perspective of those supervising him to provide management challenges.
15. He clearly had a personality clash with at least Mr Horswell and probably others. Although he claimed that he had never been counselled about any problem, there are, in the discovered documents, comments suggesting that his supervisors, especially Dr Robertson, had tried to counsel him on a number of occasions and to resolve the inter-personal difficulties.
(b) Termination
16 On 12 May 1998, he was asked by Dr Robertson to attend with him before Assistant Commissioner Phil Baer, General Manager Scientific and Technological Systems and Systems Support in the AFP (GMS). At that meeting, Mr Baer handed him a notice, the 26E Notice. It advised that he had seven days within which to contest the 26E Notice otherwise it was proposed that action would be taken under s 26E of the Australian Federal Police Act 1979 (Cth) to terminate his appointment.
17. He subsequently had a conversation with Dr Robertson. Mr Nelipa’s own notes record the following:
...I then attended Dr Robertson’s office where he agreed to speak to me. I said, ‘You have given the redundancy to the wrong person’ (meaning that John Horswell should have received one – not me). I told him that my redundancy could only have a bad impact on morale in forensic services. Dr ROBERTSON agreed that several persons may end up leaving as a result, saying that he was prepared to accept that if it happens.
Dr Robertson’s said Mr Baer had conducted a full review of all the complaints which he had received – and that no problems were found to exist in Forensic Services Management.
...
I asked him why I had not been given the option to transfer to another area. His response was that I had previously told him that I only ever wanted to work in Crime Scenes. I explained that I had a family and financial obligations, and that had I been given an option, I clearly would have chosen a transfer
...
I then repeated that the redundancy had been given to the wrong person. I said that John Horswell was incapable of performing irrespective of where he was placed. Dr Robertson said, “He had better perform in his new position, otherwise he too will have to go”.
Dr Robertson then asked me if I intended to contest the 26E. I replied that I would do so, and that I would fight it as strongly as possible. Dr Robertson said that even if I was successful, that I would not get a position back in Forensic Services. He said that it was he who recommended that I receive a redundancy. He said that if I successfully contested the 26E, I would only be transferred to another area where I would in all probability find myself in a worse position.
Dr Robertson then advised me to try not to read the document until the following day. He said that I would probably disagree with some of the comments strongly. He said, that while most of the content was his, other views were also represented.
...
18. In the event, Mr Nelipa did not contest the 26E Notice. He sent a note on 18 May 1998 advising this but asking that the contents of that note be recorded. In it, he notes, inter alia:
The allegation has been made that I cannot operate in a ‘team’ environment ...The allegations that have been made against me are biased, inaccurate and unfair ...
Had I chosen to contest the s 26E in a Court environment, I am confident that I could easily have proven most to be inaccurate and malicious. The single factor which has now influenced my decision not to contest the s 26E was Dr Robertson’s assertion that even if I was successful, I would not be able return (sic) to Forensic Services.
On 15 May 1998 I sought and received counselling with [an officer] at [the AFP’s] Employee Assistance Service. What has become clear to me is that this professional help ought to have been a process which I should have undergone well before I received the redundancy. If my behaviour was seen as disruptive, then such help should have been part of an accepted management process.
19. What is shown by this material, the relevance of which becomes clear later, is that Mr Nelipa was aware that Mr Baer had conducted a full review of all complaints he had received (including those from Mr Nelipa) and that the difficulties that had led to the 26E Notice included the claimed inability of Mr Nelipa to work in a team situation and his claimed disruptive behaviour, not his scientific work.
20. Instead of contesting the 26E Notice, Mr Nelipa decided to contest the termination through the court. He sought the assistance of the Police Association and was referred to lawyers who took his instructions.
(c) The Proceedings
21. On 1 March 2000 Mr Nelipa’s lawyers made a request under the Freedom of Information Act 1982 (Cth) for certain documents. This was a wise and prudent step to take before challenging a decision made within government. Indeed, as the case shows, it can be essential to get the relevant documents before deciding whether to commence proceedings. Having said that, this case also shows the care with which the request must be drafted and the way in which assumptions about how documents might be held within government should be rigorously tested before reliance is placed on them when making the request.
22. The request sought the following documents:
1. Peter Nelipa’s entire personal file;
2. Any personal forensic file held in Peter Nelipa’s name;
3. Any internal investigations file relating to Peter Nelipa;
4. Any Internal Security and Audit Division file relating to Peter Nelipa;
5. All diaries, notes, minutes, correspondence and any other document relating to Peter Nelipa held by Dr James Robertson;
6. All diaries, notes, minutes, correspondence and any other document relating to Peter Nelipa held by Mr John Horswell;
7. All diaries, notes, minutes, correspondence and any other document relating to Peter Nelipa held by Superintendant Mal McGregor.
23. On 1 May 2000, documents were produced in response to this request (the FOI documents). Although I was given a list of the FOI documents and I could identify some of these in the material before me, there were others which did not appear to be in that material and others were described in a way that I could not tell whether I had seen them or not, such as the parts of the ‘Personal File’ of Mr Nelipa. I did not see the files, clearly, but may have seen some documents from them; I cannot tell. It was clear that one document was not produced, namely what became known as the “Baer Report”.
24. Accordingly, except insofar as I could identify any documents so produced, I assume that neither party considered that the other documents produced and not identified before me assisted their arguments on the issue before me in this application and I will proceed accordingly: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.
25. Mr Nelipa then sought counsel’s advice on the prospects of him being able to recover damages for the termination of his appointment. A full copy of counsel’s advice was amongst the subpoenaed documents. Both parties relied on it.
26. Counsel’s advice rehearsed Mr Nelipa’s long and meritorious career. I pause to note that this was not seriously in issue although Mr McGregor had expressed some reservations about some aspects of his work. Certainly, the matters set out in the 26E Notice did not relate to that kind of professional competence.
27. After referring to Mr Nelipa’s career, the advice proceeded:
And then, out of the blue, in May of last year he was served with a notice from Asst Commissioner Baer. The notice said that the Commissioner had serious concerns about his teamwork in particular. If he did not contest the notice, the Commissioner intended to terminate his contract of employment early ...Mr Nelipa was very concerned by the notice. He was not aware of anything that could have prompted the notice. He had never been warned that his conduct was thought to be so bad that he might be facing early termination of contract. In fact, his performance appraisals had consistently rated him highly, including in the categories of teamwork.
28. Apart from this, there was no analysis in counsel’s advice of the 26E Notice or the factual allegations in it. There was no reference, for example, to the apparent disconnect between the above reported instructions no doubt given by Mr Nelipa about the unexpected nature of the 26E Notice and statements in the 26E Notice such as:
Despite sustained efforts by DFS to assist you with your team relationships, you have apparently become the focal point of the deterioration of the Crimes Scenes team environment ...Your working relationships with a number of team members have deteriorated over time apparently because of your poor inter-personal skills including your apparent propensity to engage in verbal or physical outbursts in the workplace ...
Despite intensive counselling and efforts over a lengthy period of time by the DFS, to ameliorate the debilitating effects of your actions, attitude and behaviour on the Crimes Scenes team relationships, you appear to be unable or unwilling to maintain a positive and constructive team member role.
...
... you may have exhibited poor inter-personal skills and an immature attitude on a number of occasions towards Mr Horswell and other members of Crimes Scenes.
29. I accept that Mr Nelipa may reject these statements; indeed, he said as much in his response. His rejection may be true and those statements may be unfair or inaccurate. I am not in a position to decide such issues. A lawyer acting for Mr Nelipa, however, would likely wish to explore such allegations made that are inconsistent and so starkly inconsistent with a client’s instructions so as to ascertain the basis for them. Were such allegations able to be proved by the defendants, then the factual basis for counsel’s advice would be substantially undermined. Among the documents produced were personal files held under Mr Nelipa’s name and I am not privy to their contents. There were, however, at least 2 other documents, copies of which were produced to me that show complaints by people other than Dr Robertson or Mr Horswell about Mr Nelipa’s behaviour which might have put his lawyers on inquiry.
30. In fairness, I must acknowledge that counsel quite properly warned of the uncertainties of litigation and, as he said, “evidence in court does not always end up where you expect”.
31. Counsel then advised that Mr Nelipa had a good case of misfeasance in public office and intimidation against Dr Robertson and in negligence against the Commissioner.
32. Apparently Mr Nelipa accepted this advice and proceedings were commenced for these causes of action and in addition for breach of contract, on 27 September 2000.
33. Whilst in the scheme of things it probably does not matter much, it is a little odd that the additional cause of action in contract was pleaded, notwithstanding that no advice appears to have been provided by counsel that there were prospects of success in such a cause of action. Given that the employment relations between the Commissioner of the AFP and Mr Nelipa were substantially regulated by statute, there is not much room for implied contractual terms, especially if they are inconsistent with the statute. See Director-General of Education & Ors v Suttling [1987] HCA 3; (1987) 162 CLR 427 at 437-8; Chapman v Australian Federal Police Commissioner (1983) 76 FLR 428.
34. A defence was filed on 22 March 2002. This denied that the plaintiff was entitled to relief and made it clear that the issue was not Mr Nelipa’s prior scientific work and achievements, but his alleged destructive behaviour, inability to accept that this was a problem and an inability to work to his potential. This is entirely consistent with the 26E Notice.
35. Discovery was also conducted. On 30 May 2002, the second defendant filed an affidavit as to documents which was, curiously, sworn as long prior as 14 March 2002. On 11 June 2002, the first defendant filed an affidavit as to documents. The first defendant indicated that he did not have any documents in his possession or power as they had been destroyed in 2000. The plaintiff filed an affidavit as to documents on 8 July 2002 and a supplementary affidavit on 19 July 2002.
36. In 2002, interrogatories were also administered by the plaintiff and they were answered by the defendants in separate affidavits both dated 29 November 2002.
37. In his affidavit, Mr Bradfield recounts the following:
38. Unfortunately, Mr Bradfield did not descend to particularity and did not identify the documents to which he referred, so I am not able to say when they first came into the possession of either Mr Nelipa or his lawyers. Clearly Mr Nelipa had some documents referring to the Review conducted by Mr Baer and knew about that. The clear impression from Mr Bradfield’s affidavit is that the documents were produced following discovery by affidavit, but, quite properly, these included some documents included in the FOI documents. I do not know when the documents which draw Mr Bradfield’s attention to the Baer Report were first in the hands of Mr Nelipa or his lawyers.
39. A significant amount of material before me was directed towards the issue of the Baer Report which became significant in these proceedings. Accordingly, it is necessary to address the Baer Report and the events leading up to it.
The Baer Report
40. On 28 January 1998, Assistant Commissioner Phil Baer, GMS, issued a minute in which he advised that he proposed to conduct an examination of a number of issues raised by various members of Forensic Services. The minute refers to a number of “recent referrals to II [Internal Investigations Division] and ISA [Internal Security and Audit Division]”. The minute noted that the Office of the Commonwealth Ombudsman had been involved. This clearly arises from s 6 of the Complaints (Australian Federal Police) Act 1981 (Cth) which requires any complaint made to the Internal Investigation Division to be referred to the Ombudsman. The minute indicated that the complaints were agreed with the Ombudsman to be “management issues” and not issues to be pursued by Internal Investigations or the Ombudsman. In his minute, Mr Baer invited those to whom he sent it to nominate management practices that they considered could be improved and to make a response by close of business on 15 February 1998.
41. All Forensic Services personnel including Mr Nelipa were interviewed. In fact, Mr Nelipa met Mr Baer on 28 January 1998 for an hour. On 29 January 1998 he sent an email to Mr Baer with additional comments.
42. I do not have any notes of the interview between Mr Baer and Mr Nelipa but I do have Mr Nelipa’s email of 29 January 1998 which shows him complaining about the deferral of his promotion in 1991 which was said to have arisen from an allegation made by another senior police officer about some conduct during the Winchester Investigation which Mr Nelipa complained he had not had an opportunity to answer. I also have a note where Mr Nelipa says he told Mr Horswell that he had “passed on the details of your continual harassment of me to Mr Baer. He will now decide what needs to be done”.
43. For reasons that will become obvious below, I do not have a copy of Mr Baer’s Report. A summary was circulated to all Forensic Service staff on 13 May 1998, including the plaintiff and a copy of it was in the material before me. This summary referred to people by number and not name and this was apparently also done in the Report itself. Mr Nelipa says he did not access that email, however, since he had, prior to that date, received the 26E Notice and was in no fit state to look at his emails.
44. The summary set out claims of various persons identified only by a number and listed beside them the findings made by Mr Baer and the action he proposed.
45. Mr Baer also made a presentation of the Report on 14 May 1998 to Forensic Services staff. The plaintiff had been invited to attend that in the email referred to above but did not do so. The meeting ran for a little over two hours and was videotaped.
46. The video was not tendered before me but counsel’s summary, which was, is as follows:
... [Assistant Commissioner Baer] went through his findings in some detail.Along the way he refers to serious problems inside the Unit. There are references to lack of communication, poor understanding of roles in the unit, difficulties with accepting the new teams’ structure (instead of the old command structure based on ranks), and what he refers to repeatedly as “two camps” that is, serious internal disharmony centred around two groups of people.
He makes it abundantly clear that he will not tolerate such disunity and lack of team cohesion. While he expresses the hope that everybody can pull together now that the Review’s findings are being implemented, he says on several occasions that he will not hesitate to seek the removal of anybody who disrupts the team cohesion. “If you don’t accept the teams’ structure” he says at one point, “you must seriously question whether you have a future in the AFP”. At another point he makes it clear that he not Dr Robertson will seek to remove disruptive influences from the Unit and from the AFP. While Mr Baer never mentions names, it is obvious [opines counsel] that many of his remarks relate to Mr Nelipa”.
47. Counsel also describes Mr Baer’s presentation and the “incomplete notes of his interviews” as “equally stark” in showing the “staff were divided around the Nelipa Horswell conflict” and that “the conflict was highly disruptive of the unit, leading to poor work and low morale”.
48. It is not entirely clear when Mr Baer completed his Report. It was apparently presented to the staff of Forensic Services at the meeting on 14 May 1998. Mr Baer, subsequently contacted, says that it was handed to the General Manager of Professional Development and that it is likely that a copy would have been sent to Internal Investigations Division, where referrals had, in some cases, originated, so that they could close off their file.
49. Mr Baer’s Report is, however, apparently no longer in existence or, at least, cannot be found. “Exhaustive inquiries” in the AFP were unable to locate a copy; Mr Baer did not have a copy; no member of Forensic Services had a copy. I have no real information about when or how it has become lost or otherwise gone missing.
50. It is clear from the description of Mr Baer’s Report that it would have provided significant evidence of problems in forensic sciences and Mr Baer would obviously have been a valuable witness for the defendants in opposition to the proceedings commenced by Mr Nelipa.
51. Mr Nelipa’s position is that had Mr Baer’s Report been made available to him, then he would never have commenced the litigation. He says that the failure to provide that Report when there was an obligation to do so by the defendants, meant that he was misled and that the hopelessness of the case it has now shown, was concealed from him.
52. Counsel for Mr Nelipa identified four points at which he says the Report should have been disclosed. I shall deal with each of them in turn.
1. With the 26E Notice.
53. The evidence does not enable me to say nor, as I understand it, was it expressly submitted by counsel for Mr Nelipa, that Dr Robertson had a copy of Mr Baer’s Report when he prepared the submission to Mr Baer recommending that a Notice under s 26E of the Australian Federal Police Act 1979 (Cth) be given to Mr Nelipa and another officer. The minute containing the submissions was signed on 8 April 1998. I note that Mr Baer endorsed those recommendations on 9 April 1998 and there is no reference in that to his Report. It seems unlikely that the Baer Report had by then been prepared.
54. While the 26E Notice itself was dated about one month after Dr Robertson’s minute was signed, and was delivered to Mr Nelipa two days before Mr Baer circulated the summary of his Report, I have no reason to believe the Report formed part of the material submitted to Deputy Commissioner Whiddett who signed the 26E Notice.
55. It is true that in the minutes of a meeting of 20 May 1998, which were in Mr Nelipa’s possession, the Baer Report is directly associated with the termination of the appointment of a number of members of Forensic Services. The minute records:
8. Baer ReviewApologies to any/all who were taken aback by the presence of the Video Unit at last week’s muster. Their services were required to facilitate the dissemination of the session details to all FS people in Canberra and in the regions.
No finding in review of improper FS management. Allegations of inappropriate and improper practices caused the review in the first place.
...
The video tape of the muster and GMS’ speaking notes were handed to John Goulding for copying and dissemination to the Regions. JR to e-mail the speaking notes to the Coordinators. Action items of review were discussed. Issues which emerged from the review included the following:
...
Item 1.11 26E’s.
56. While there is a respectable argument in favour of the desirability of giving Mr Nelipa a copy of the Baer Report at the same time as the 26E Notice, it does not seem to me, other than with the benefit of hindsight, that it could have in any sense been said to have been “necessary” to do so. After all, Mr Baer was to make a presentation on it a day or so later. Even with hindsight, I do not accept that it was “necessary”.
57. The complaints against Mr Nelipa were set out in short form on the 26E Notice and I have carefully perused them and compared them with the summary of Mr Baer’s Report in counsel’s advice. The summary does not, it seems to me, suggest any additional complaints in the Baer Report to those expressed in the 26E Notice. Indeed, importantly, the 26E Notice refers a number of times to attempts made to counsel Mr Nelipa, which so far as I can see are not repeated in the Baer Report. While there is, no doubt, evidence and value in the “independent opinion” of the Baer Report, it does seem to me that this merely amounts to evidence to support the opinions expressed in the 26E Notice rather than the making of them. The submission to issue the notice was, after all, that of Dr Robertson. That is to say, if those opinions are accurate, and it seems that Mr Nelipa now accepts that his chances of disproving them are so slim that he should discontinue these proceedings, then that is a risk that he faced from the receipt of the 26E Notice. It is not as if additional complaints or additional material were added in the Baer Report, only that the complaints made in the 26E Notice were supported by this additional material.
58. I further note that, if I am right, the Baer Report did not refer to Mr Nelipa by name and so would not have, in that form, necessarily helped Mr Nelipa to respond to the 26E Notice. Even if he were told the “key” to the numbers relating to him, that may not have helped him identify the complaints made about him as opposed to those made by him.
59. Accordingly, it does not seem to me that there was any obligation on the AFP to provide a copy of the Baer Report with the 26E Notice. Indeed, given that the Baer Report dealt with a whole range of other matters including other people, it could be said that to deliver the Report as well would be a failure to particularise which the 26E Notice clearly did and was required to do.
2. Freedom of Information Request
60. As noted above, Mr Nelipa’s lawyers made a request (the FOI Request) under the Freedom of Information Act 1982 (Cth). It is, as I have noted above, often good practice when seeking to challenge decisions made by government to obtain as much information as possible by using the opportunities provided by that Act. What this case shows is that there can be some danger in doing so.
61. A well-known danger is that by seeking individual documents, one finds that one has failed to obtain any responses to the individual documents sought or collateral material that may be of assistance or relevance. Accordingly, as in this case, it is not infrequent that one resorts to omnibus descriptions such as “files” or “diaries, notes, minutes, correspondence and other documents” relating to some event, situation or person.
62. There is, of course, then always a danger that the document one seeks may not have been put in the identified file or may not be held by a specific person. Accordingly, it seems to me that where a particular document is known, there is commonsense in seeking that document whether one also uses the wider omnibus formulae suggested above or not.
63. There was unchallenged evidence before me from an experienced officer that the Baer Report would not have been expected to have been found in any of the files referred to in the FOI request. On the other hand, the 26E Notice refers to “advice provided to me by GMS” and “[f]urther, GMS advises me”, so there seems no reason why a request should not also have been made for any document containing that advice. For the reasons set out above, this may or may not have resulted in the provision of the Baer Report. I also note, in this regard, however, that in the second defendant’s answers to interrogatories it was said that Mr Whiddett only had regard to the submission of Dr Robertson with Mr Baer’s handwritten notation on it and no other document. That is strong support for the view that the Baer Report was not part of the submission seeking the 26E Notice. Nevertheless, a request for such documents may then have justified Mr Nelipa’s claim that the failure to provide the Baer Report had not complied with the second defendant’s obligation to respond to the FOI request and therefore prejudiced Mr Nelipa.
64. Accordingly, I am not satisfied that there was a culpable failure by the AFP to provide the Baer Report (if it had not by then been lost) in the FOI documents.
65. I can understand that, in a small organisation, a document such as the Baer Report might have been one that came to the mind of an officer dealing with the FOI request but, with a large organisation, that is unlikely to occur. Hence the need for careful formulation of any such request.
66. I do note, however, that with the FOI documents, Mr Nelipa received material that showed that there was evidence other than from Dr Robertson himself to support the comments that Dr Robertson had made in his submission. This included a letter from Mr Horswell of 30 September 1997, complaining about threats, raised voices and threatening body language by Mr Nelipa, a letter from another officer of Forensic Services dated 6 January 1998 about threatening and inappropriate language claiming that “[t]his incident was not an isolated one”, another letter of 6 January 1998 also advising of behavioural problems and the letter of 6 April 1998 from Mr McGregor to which I have already referred.
67. While these might not be considered to be as strong or as critical as the Baer Report, they clearly show that there were other persons able to give evidence of the matters about which Dr Robertson had complained in his submission and which were set out in the 26E Notice.
68. Accordingly, I do not consider that the response by the AFP to the FOI request would justify making a costs order in favour of Mr Nelipa against the AFP in respect of proceedings commenced following receipt of the FOI documents because they did not include the Baer Report.
3. Correspondence before action.
69. On 2 June 2000, Mr Nelipa’s solicitors wrote to the Commissioner of the AFP advising of instructions to commence proceedings and inviting negotiations towards a settlement.
70. Counsel for Mr Nelipa suggested that this was a further opportunity for Mr Nelipa to be provided with a copy of the Baer Report.
71. While that is certainly true, two things need to be said about it. In the first plea, while it is clear that the Baer Report provides evidence that supports the complaints against Mr Nelipa made by Dr Robertson and which found their way into the 26E Notice, it does not seem to me that it is necessary for a litigant, even in the position of the Commonwealth, to disclose all the evidence it has.
72. Mr Nelipa’s approach seems to be that, since he had complained about Dr Robertson, evidence given by Dr Robertson had to be discounted and it was only if there was other, independent, evidence that the defence of the defendants could be sustained. That was never the case. Without the Baer Report the defendants may well have been able to sustain their defence. There was other material that could be adduced and Dr Robertson may simply have been believed.
73. Again, I must not be misled by hindsight which always has the capacity of the “20-20 vision” that those in the midst of events cannot be expected to have.
74. If, as I have indicated seems most likely, the Baer Report was not in fact in Dr Robertson’s possession when he made the submission for action under s 26E of the Australian Federal Police Act 1979 (Cth), then it would not automatically have been brought to the mind of those responding to this correspondence to provide such a copy. In any event, I am not satisfied that even if it had been brought to mind, they would necessarily have been required to have provided a copy.
75. In the second place, while the letter could arguably be construed as an “invitation to treat”, it really was an offer of settlement on a quite specific basis. I do not consider the second defendant was obliged to respond by producing all its evidence, even just the Baer Report, in these circumstances whatever the value we now know that there may have been in resolving the dispute or preventing the litigation if they had done so.
4. Discovery
76. It is agreed between the parties that neither the Baer Report nor the video of the presentation were disclosed in discovery. It is crystal clear to me that the Baer Report and the video were important matters of evidence than bore directly on the case and, accordingly, should have been discovered.
77. I am not unsympathetic to the problem of record-keeping and record-finding, particularly in large organisations, but the importance of discovery to the justice process cannot be undermined by such sympathy.
78. That the defendants agreed that their affidavits as to documents should be amended relevantly to include these documents shows their recognition that they were discoverable. I do not think an affidavit can be amended, however, but a supplementary or replacement affidavit can, of course, be provided. It appears that no such document was ultimately filed but that is of no consequence.
79.. Given the importance of the Baer Report, it is reasonable to assume that had that document been discovered properly as it was required to have been, this application would have been made promptly after that time. The failure in discovery, therefore, is clearly a fault attributable to the defendants.
5. The Law
80. The power to make an order for costs in this application arises under r 1163(2) of the Court Procedures Rules 2006. There the court is given power to “make the order for costs it considers appropriate”. This seems to me as wide a power as is given under r 1721, the general rule giving the court a discretion to award costs. In referring to such a rule Gaudron and Gummow JJ in the High Court in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 made it clear that such a rule gives a wide discretion.
81. Their Honours said at [22]:
The power conferred by the section [the equivalent section to the ACT r1721] is to be exercised judicially, that is to say not arbitrarily, capriciously or so as to frustrate the legislative intent. However, subject to such considerations, the discretion conferred is, to adapt the words of Dixon J, unconfined except in so far as “the subject matter and the scope and purpose” of the legislation may enable an appellate court to pronounce the reasons given by the primary judge to be “definitely extraneous to any objects the legislature could have had in view” (Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 at 505.
... so strongly determinative of a discretion conferred in broad terms by a provision such as [the equivalent section to the ACT r 1721] are the considerations (i) that the court must determine the matter from the perspective of the successful party, (ii) that the successful party ordinarily should be compensated by the unsuccessful party for the expense of the litigation, and (iii) that the successful party will be deprived of costs only by disentitling conduct, that they are to be displaced only by specific legislative provision.
83. Their Honours then concluded at [40]
There is no absolute rule with respect to the exercise of the power conferred by a provision such as [the equivalent provision to the ACT r 1721] that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party. Nor is there any rule that there is no jurisdiction to order a successful party to bear the costs of the unsuccessful party. (footnote omitted)
84. More recently in Foots v The Southern Cross Mine Management Pty Limited & Ors [2007] HCA 56; (2007) 241 ALR 32, the High Court had occasion to consider the approach they had taken to costs. The majority comprising Gleeson CJ, Gummow, Hayne and Crennan JJ said at 34:
As explained in E R Daniell’s Practice of the High Court of Chancery, the discretionary nature of the award of costs meant simply that an equity court:... is not, like the ordinary Courts, held inflexibly to the rule of giving the costs of the suit to the successful party; but that it will, in awarding costs, take into consideration the circumstances of the particular case before it, or the situation or conduct of the parties, and exercise its discretion with reference to those points. In exercising this discretion, however, the Court does not consider the costs as a penalty or punishment; but merely as a necessary consequence of a party having created a litigation in which he has failed; and the Court is, generally, governed by certain fixed principles which it has adopted upon the subject of costs, and does not, as is frequently supposed, act upon the mere caprice of the Judge before whom the cause happens to be tried.
The similarity with the modern treatment of costs applications will be readily apparent.
85. From these decisions, I would distil the following principles. The discretion to order costs is a wide, unconfined discretion. It must be exercised judicially but is not confined by absolute rules such as that in the absence of disentitling conduct, a successful party is to be (partially) compensated by the unsuccessful party. Similarly, there is no absolute rule that the sole purpose of a costs order is to compensate one party at the expense of another.
86. Nevertheless, ordinarily, the party who has created the litigation and failed in it will be required to meet the costs of the other party. Further, where there has been some delinquency on the part of a party, even the successful party, that may justify depriving that party of their costs or even requiring them to pay the other party’s costs.
87. There will also be other reasons that are relevant to the decision as to which party should bear the costs of the other party. The range of such reasons should not be limited and will include the nature of the litigation (such as in Oshlack v Richmond River Council) the conduct of a party (Foots v Southern Cross Mine Management Pty Limited & Ors) or the involvement of a non-party (Knight & Anor v F P Special Assets Limited [1992] HCA 28; (1992) 174 CLR 178). See also Probiotec Ltd and Ors v University of Melbourne and Ors [2008] FCAFC 5; (2008) 166 FCR 30 at 42-4.
88. It is also clear that when identifying who is a successful party, the precise outcome of the proceedings is not always determinative. Burchett J said in One.Tel Limited & Ors v Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548 at 553:
In my opinion, it is important to draw a distinction between cases in which one party, after litigating for some time, effectively surrenders to the other, and cases where some supervening event or settlement so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs. In the former type of case, there will commonly be lacking any basis for an exercise of the Court’s discretion otherwise than by an award of costs to the successful party. It is the latter type of case which more often creates problems, since there may be difficulty in discerning a clear reason why one party, rather than the other, should bear the costs.
89. Clearly where a party has, by its conduct, led the other party to prosecute litigation which would inevitably fail had the proper basis for the defence to the litigation been exposed, then, notwithstanding that there was no basis for the litigation, the “successful” party would be unlikely to succeed in an order for costs. See Verna Trading Pty Ltd v New India Assurance Co Ltd [1991] 1 VR 129 at pp 155-6.
6. Model Litigant Obligations
90. Mr Nelipa also relied on the fact that the first defendant was a Commonwealth officer and the second defendant was the Commonwealth and so bound by the obligation to conduct themselves as model litigants. This obligation is based on what was said by Griffith CJ in Melbourne Steamship Co Ltd v Moorehead [1912] HCA 69; (1912) 15 CLR 333 where his Honour said at 342
I am sometimes inclined to think that in some parts – not all – of the Commonwealth, the old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects, which I learned a very long time ago to regard as elementary, is either not known or thought out of date. I should be glad to think that I am mistaken.
91. The Attorney-General of the Commonwealth has issued Legal Services Directions 2005 (Cth) (Directions) under s 55ZF of the Judiciary Act 1903 (Cth) to apply to the conduct of litigation by the Commonwealth and its agencies. Appendix B to the Schedule to the Directions sets out the obligation of those bodies “to act as a model litigant”. The nature of the obligation is set out in cl 2 of the Appendix as follows:
(a) dealing with claims promptly and not causing unnecessary delay in the handling of claims and litigation
(aa) making an early assessment of:
(i) the Commonwealth’s prospects of success in legal proceedings that may be brought against the Commonwealth; and
(ii) the Commonwealth’s potential liability in claims against the Commonwealth
(b) paying legitimate claims without litigation, including making partial settlements of claims or interim payments, where it is clear that liability is at least as much as the amount to be paid
(c) acting consistently in the handling of claims and litigation
(d) endeavouring to avoid, prevent and limit the scope of legal proceedings wherever possible, including by giving consideration in all cases to alternative dispute resolution before initiating legal proceedings and by participating in alternative dispute resolution processes where appropriate
(e) where it is not possible to avoid litigation, keeping the costs of litigation to a minimum, including by:
(i) not requiring the other party to prove a matter which the Commonwealth or the agency knows to be true
(ii) not contesting liability if the Commonwealth or the agency knows that the dispute is really about quantum
(iii) monitoring the progress of the litigation and using methods that it considers appropriate to resolve the litigation, including settlement offers, payments into court or alternative dispute resolution, and
(iv) ensuring that arrangements are made so that a person participating in any settlement negotiations on behalf of the Commonwealth or an agency can enter into a settlement of the claim or legal proceedings in the course of the negotiations
(f) not taking advantage of a claimant who lacks the resources to litigate a legitimate claim
(g) not relying on technical defences unless the Commonwealth’s or the agency’s interests would be prejudiced by the failure to comply with a particular requirement
(h) not undertaking and pursuing appeals unless the Commonwealth or the agency believes that it has reasonable prospects for success or the appeal is otherwise justified in the public interest, and
(i) apologising where the Commonwealth or the agency is aware that it or its lawyers have acted wrongfully or improperly.
93. Such obligations, if conscientiously discharged, obviously contribute to the maintenance of public confidence in the integrity of administrative government: Kelson & Anor v Forward [1995] FCA 1584; (1995) 60 FCR 39 at 65-6.
94. The obligation in clause 2 of Appendix B to the Directions and more generally for the Commonwealth to act as a model litigant, has been the subject of judicial comment in recent years: In Scott v Handley (1999) 58 ALD 373, [1999] FCA 404, the Full Court of the Federal Court of Australia, after referring to the comments of Griffith CJ in Melbourne Steamship Co Ltd v Moorehead set out above, said at [44]-[45]:
Insistence upon that standard is a recurrent theme in judicial decisions in this country in relation to the conduct of litigation by all three tiers of government: see e.g. Yong Jun Qin v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155 at 166; 144 ALR 695; Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 at 196; 146 ALR 1; SCI Operations Pty Ltd v Commonwealth (1996) 69 FCR 346 at 368; 139 ALR 595; Director of Public Prosecutions (Cth) v Saxon (1992) 28 NSWLR 263 at 267; Kenny v South Australia (1987) 46 SASR 268 at 273; Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537 at 558-9; P & C Cantarella Pty Ltd v Egg Marketing Board (NSW) [1973] 2 NSWLR 366 at 383-384 see also R v Tower Hamlets London Borough Council Ex parte Chetnik Developments Ltd [1988] AC 858 at 876-7.As with most broad generalisations, the burden of this fair dealing standard is best appreciated in its particular exemplifications in individual cases. The courts have, for example, spoken positively of a public body’s obligation of “conscientious compliance with the procedures designed to minimise cost and delay”: Kenny’s case, above, at 27; and of assisting “the court to arrive at the proper and just result”: P & C Cantarella Pty Ltd v Egg Marketing Board, above, at 383. And they have spoken negatively, of not taking purely technical points of practice and procedure: Yong’s case, above, at 166; of not unfairly impairing the other party’s capacity to defend itself: Saxon’s case, above, at 268; and of not taking advantage of its own default: SCI Operations Pty Ltd, above, at 368.
95. To these may be added further examples. For example, where the Commonwealth has approached the issue unsuccessfully in other cases, it should be slow to maintain such issues further: Commonwealth of Australia v Smith [2007] NSWCA 168 at [124]. Perhaps with some relevance here, it is also necessary for a model litigant to approach the issue of discovery in document intensive cases in a way that defines the issues for the court’s consideration when managing the discovery process, to collect appropriately and identify relevant documents comprehensively and completely and assist in the just, quick and cheap resolution of the real issues in the proceedings: Priest v New South Wales [2007] NSWSC 41 at [35]- [40]. The model litigant, if it is to pursue costs, which it is by no means precluded from doing under the Directions, should do so promptly: Wodrow v Commonwealth of Australia [2003] FCA 403; (2003) 129 FCR 182 at 195. See also Badraie v Commonwealth of Australia and Ors [2005] NSWSC 1195; (2005) 195 FLR 119 at 135.
96. It was suggested by the defendants that the Directions were not such that breach was to be sanctioned by the court. I was referred to cl 14 of the Schedule which provided that:
“14.1 The Attorney-General may impose sanctions for non-compliance with the Directions”.
97. That may be and it is not the function of the court to ensure compliance with the Directions or to become the disciplinary tribunal for alleged breaches. Nevertheless, it is clear that the obligation to act as a model litigant and the failure to act in that way can be a relevant factor in considering the appropriate order as to costs: Cultivaust Pty Ltd v Grain Pool Pty Ltd [2004] FCA 1568 at [18].
98. This is perhaps re-inforced by the fact that such obligations have been held to apply in general terms to governments other than the Commonwealth and even related agencies: Pacific National (ACT) Ltd v Queensland Rail [2005] FCA 535; (2005) 215 ALR 544 at 559-60. Even local government is considered to have similar obligations: Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537 at 558.
99. For reasons that are obvious in what I have already said, I do not consider that in responding to the FOI request the defendants have failed in any duty they have under the Directions or otherwise. I had a little more concern as to whether the lack of response to the letter before action might bring into relevance the model litigant obligation. In the end, for the reasons set out above, I do not consider it did so. I would merely add that the Directions do not address this issue in terms or necessarily by implication.
100. The issue of discovery in these proceedings is different and while I do not really have enough information to determine whether there is a real blame attributable to the defendants in the context of their model litigant obligations, those obligations do reinforce my views that the defendants did not complete discovery and that this leaves them vulnerable to an order for costs.
Conclusions
101. Doing the best I can, then, it seems to me that the defendants cannot be said to have misled or concealed from Mr Nelipa the basis on which they were going to defend the proceedings. I have found that, while with hindsight, one might suggest that the defendants could have approached at least the letter before action in a different way, neither the 26E Notice, nor the FOI request were dealt with by the defendants in a way that could be described as “disentitling conduct” such as would justify making a costs order against them. The basis for the termination of the plaintiff’s appointment was clear in the 26E Notice. The evidence for it was not completely disclosed before the action was commenced or for some time thereafter but in the common law system of litigation that is usually the case. The process of discovery and interrogatories, however, is itself designed to resolve much of that.
102. Thus when the defendants failed to discharge their discovery obligation properly, this caused Mr Nelipa to continue with the action and therefore to undertake work which, had discovery been properly undertaken, would have been unlikely. This does seem to me not only sufficient to justify depriving the defendants of their costs from this time, properly defined, but to require them to pay Mr Nelipa’s costs from then.
103. As to this application, both parties have been partially successful and, in my view, each party should bear their own costs of it.
104. Accordingly, I order that:
1. The plaintiff have leave to discontinue the proceedings.
2. The plaintiff pay the defendants' costs of the proceedings up to the end of the day on which the plaintiff’s lawyers received and perused the second defendant’s affidavit as to documents sworn on 14 March 2002 and also the costs of the inspection of the documents disclosed in that affidavit as to documents.
3. The defendants pay the plaintiff’s costs of the proceedings from the end of the day in which the plaintiff’s lawyers received and perused the second defendant’s affidavit as to documents sworn on 14 March 2002 other than the costs of the inspection of the documents disclosed in the second defendant’s affidavit as to documents sworn on 14 March 2002 and save for the costs of this application.
4. Each party pay their own costs of this application.
I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 2009
Counsel for the plaintiff: Mr C ErskineSC and Mr I Bradfield
Solicitor for the plaintiff: Porters
Counsel for the first defendant: Mr A Berger
Solicitor for the first defendant: Australian Government Solicitor
Counsel for the second defendant: Mr A Berger
Solicitor for the second defendant: Australian Government Solicitor
Date of hearing: 25 August 2008
Date of judgment: 6 March 2009
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