DISTRICT COURT OF QUEENSLAND
CITATION:
Gardem v Edmistone [2018] QDC 118
PARTIES:
GRAHAM JOHN GARDEM
(plaintiff)v
LESLIE MURDOCH EDMISTONE
(defendant)FILE NO/S:
BD2660/11
DIVISION:
PROCEEDING:
Civil Trial
ORIGINATING COURT:
District Court of Queensland
DELIVERED ON:
26 June 2018
DELIVERED AT:
Brisbane
HEARING DATE:
1, 2, 3 and 4 February, 11, 12, 13 and 15 July, 17 and 18 August 2016 and written submissions on 25 August, 8 and 15 September and 24 October 2016.
JUDGE:
Andrews SC DCJ
ORDER:
Claim dismissed.
Order that the plaintiff pay the defendant’s costs on the standard basis of the proceeding excluding Queen’s Counsel’s fees for brief to appear on 3 and 4 February and 15 July 2016.
Liberty by 4.00pm on 27 June 2018 to apply as provided for in these reasons for a different order as to costs
CATCHWORDS:
STATUTORY INTERPRETATION – where the plaintiff claims damages for reprisals for public interest disclosures which occurred while the Whistleblowers Protection Act 1994 (repealed) was in force – where that Act was repealed – where the plaintiff claims damages pursuant to the Public Interest Disclosure Act 2010 – whether that claim is misconceived – whether claim should properly have been made under the repealed Act
STATUTORY INTERPRETATION – Whistleblowers Protection Act 1994 (repealed) – whether disclosures were each a public interest disclosure – meaning of “conduct that could if proved be a criminal offence” within the meaning of the Crime and Corruption Act 2001 section 15 as it was in 2008 and 2009
TORT – REPRISAL – whether disclosures were public interest disclosures – whether the defendant believed the disclosures were public interest disclosures – whether detriment was caused – whether there was attempt to cause detriment – whether detriment was caused or attempted because of or in the belief that there was public interest disclosure – whether there was a reprisal – whether there was loss caused by reprisal
Acts Interpretation Act 1954 section 20(2)(c) and (d)
Crime and Corruption Act 2001 section 15
Disability Services Act 2006 section 11
Public Interest Disclosure Act 2010 sections 4, 40(1) and (3), 42, 74 and 75 and schedule 4.
Whistleblowers Protection Act 1994 (repealed) sections 4, 7, 15, 16, 17, 18, 41 and 43 and schedule 6.
Public Interest Disclosure Act 1994 (ACT) (repealed) s. 8
Uniform Civil Procedure Rules r150 (1) (k).
Berry v Ryan [2001] ACTSC 11
Falk v Australian Capital Territory [2006] ACTSC 68 at [30]
Howard v State of Queensland [2001] 2 Qd. R. 154
Jones v University of Canberra [2016] ACTSC 78 at [92]
Martin v Comcare [2015] FCAFC 169 at [108]
COUNSEL:
Ashton QC for the defendant
Plaintiff for himself
SOLICITORS:
Thynne and Macartney for the defendant
TABLE OF CONTENTS
Background
Issues
Does the Public Interest Disclosure Act2010, or the Whistleblowers Protection Act 1994 (repealed) govern the parties’ rights and liabilities?
The provisions of the Whistleblowers Protection Act 1994 (Qld) repealed
Identifying Mr Gardem’s case under WPA
Has Mr Gardem proved the 9 disclosures alleged?
Facts
Alleged public interest disclosure 6 June 2008
Alleged public interest disclosure on 12 June 2008
Alleged public interest disclosure on 27 June 2008
Alleged public interest disclosure on 10 July 2008
Alleged reprisal or attempted reprisal by letter dated 23 July 2008
Alleged reprisal by draft letter of summary termination
Alleged public interest disclosure 25 October 2008
Alleged reprisal 13 May 2009
Alleged reprisal 25 September 2009
The tort of reprisal under WPA – principles relating to the issues in this proceeding
Whether Mr Gardem’s letter dated 27 June 2008, was a “public interest disclosure” within the meaning of sections 15 to 19 of WPA
The defendant’s submission about the letter of 27 June 2008
Mr Gardem’s submissions on whether his letter of 27 June 2008 was a “public interest disclosure”
Whether the defendant’ show cause notice to Mr Gardem dated 23 July 2008 in reaction to Mr Gardem’s letter of 27 June was a reprisal
Whether an unserved draft letter of termination of employment was a reprisal or a reprisal by attempt to cause detriment?
Whether the four other disclosures by memorandum were “public interest disclosures” within the meaning of ss 15(b), 16(b), 17(1)(b), 18(1) and 18(1) of WPA.
Whether the defendant believed the 4 other disclosures by memorandum or email were “public interest disclosures” within the meaning of ss 15(b), 16(b), 17(1)(b), 18(1) and 18(1) of WPA
Whether between August 2008 and May 2009, the defendant: caused Mr Gardem’s work to be reduced; caused Council to engage external contractors to do work that would ordinarily be done by Mr Gardem; undermined the position of SMO and thereby caused or contributed to the redundancy of the position of SMO.
Whether the termination of Mr Gardem’s employment was a reprisal.
Quantum of loss
Costs and costs thrown away on 3 and 4 February and 15 July 2016
Background
The plaintiff, Mr Gardem, sues for damages for the statutory tort of reprisal.
Mr Gardem made allegations about some alleged work practices of his employer, Etheridge Shire Council (Council). In 2008, Mr Gardem was concerned by several council work practices. He sent a letter to a cabinet minister’s policy advisor, sent documents to the Council’s Chief Executive Officer (the defendant) and spoke with him. Mr Gardem alleges that each communication contained a “public interest disclosure”, a term which is defined in the Whistleblowers Protection Act 1994 (repealed) (WPA) and is defined with some differences in the Public Interest Disclosure Act 2010 (PIDA). The allegations were made over about 4 months between 28 June and 25 October 2008.
Mr Gardem alleges that the defendant took reprisals against him for 14 months from 23 July 2008, the last alleged reprisal being the termination of Mr Gardem’s employment with the Council on 25 September 2009.
Mr Gardem alleged that the defendant reduced Mr Gardem’s workload, used external contractors to do work Mr Gardem would ordinarily have done, undermined the employment position which Mr Gardem held with Council and thereby caused the redundancy of that position. Mr Gardem’s position did become redundant in a restructure. Mr Gardem was offered a new position with different duties and reduced pay. He did not accept the offer. Eventually, Mr Gardem’s employment was terminated for alleged abandonment of employment. Mr Gardem alleges the changes to his duties, his position’s redundancy and his termination were reprisals by the defendant.
If any of Mr Gardem’s disclosures was a public interest disclosure that had legal significance. If the disclosure fell within the definition of a public interest disclosure, then any reprisal made because of the disclosure would be a tort. Further, if Mr Gardem suffered loss because of the reprisal against a public interest disclosure, he would be entitled to damages.
Issues
The issues:
1. Does the Public Interest Disclosure Act 2010, or the Whistleblowers Protection Act 1994 (repealed) govern the parties’ rights and liabilities? [WPA governs.]
2. Identifying Mr Gardem’s case under WPA.
3. Has Mr Gardem proved the 9 disclosures alleged? [5 are proved. 4 are not.[1]]
[1]Those proved in 2008: A letter of 27 June and four memos of 6 and 12 June and 10 July and 25 October. The other 4, alleged to have been by document of 17 July 2008 and made orally on 8 and 26 October and 26 November 2008, were not proved.
4. Whether Mr Gardem’s letter dated 27 June 2008, was a “public interest disclosure” within the meaning of sections 15 to 19 of WPA. [It was not.]
5. Whether the defendant’s show cause notice to Mr Gardem dated 23 July 2008, in reaction to Mr Gardem’s letter of 27 June was a reprisal. [It was not.]
6. Whether an unserved draft letter of termination of employment was a reprisal, or a reprisal by attempt to cause detriment? [It was not.]
7. Whether four disclosures by memoranda and an email were “public interest disclosures” within the meaning of ss 15(b), 16(b), 17(1)(b), 18(1) and 18(1) of WPA.
8. Whether the defendant believed the four disclosures by memoranda and an email were “public interest disclosures” within the meaning of ss 15(b), 16(b), 17(1)(b), 18(1) and 18(1) of WPA.
9. Whether between August 2008 and May 2009, the defendant: caused Mr Gardem’s work to be reduced; caused Council to engage external contractors to do work that would ordinarily be done by Mr Gardem; undermined the position of SMO; and thereby caused or contributed to the redundancy of the position of SMO. [The defendant contributed, without fault, to the redundancy of the position of SMO.]
10. The defendant caused the council to terminate Mr Gardem’s employment for abandonment of employment. Did the defendant then know or ought he to have known that Mr Gardem was merely absent on sick leave and had not abandoned his employment? [No.]
11. If the defendant did anything to reduce the amount of work done by Mr Gardem, or to terminate his employment, did he do so because Mr Gardem had made a public interest disclosure, or in the belief that Mr Gardem had? [No.]
12. If the CEO did make a reprisal or reprisals, did any reprisal cause loss? [No]
13. Quantum of loss.
Does the Public Interest Disclosure Act2010, or the Whistleblowers Protection Act 1994 (repealed) govern the parties’ rights and liabilities?
Mr Gardem’s pleadings were based upon a premise that his rights and the defendant’s liabilities were to be determined by reference to PIDA. The defence pleaded was consistent with that premise. When the parties had closed their respective cases, Queen’s Counsel for the defendant handed up a written submission with references to PIDA. The court expressed the preliminary view that the parties’ rights and liabilities are dependent upon the operation of the repealed WPA. The parties then requested an adjournment to consider the issue and to supply written submissions on the issue and any necessary amendments to their proposed submissions.[2]
[2]T18.8.16 pg 61 ln 15 and pg 62 ln 14.
Mr Gardem subsequently provided written closing submissions. Insofar as his submissions dealt with this issue[3] Mr Gardem submitted, in effect, that:
[3]Paras 1-10
1. Mr Gardem was uncertain which statute applies;
2. Mr Gardem applied to start the trial afresh; and
3. “…the defence will not be unduly affected if the matter starts again, given Mr Ashton’s involvement in the issues to date. Expectedly, any inconvenience to the Defendant would be accommodated through established processes.”
The issue of which statute applies depends upon interpretation of statutes and upon very few facts. The facts relevant to the issue are the dates of Mr Gardem’s alleged disclosures and the dates of the defendant’s alleged acts of reprisal. The relevant dates are uncontroversial. The dates of each alleged disclosure and reprisal are within the period when WPA was in force. A retrial cannot assist in the determination of which statute or statutes govern Mr Gardem’s rights against the defendant for the events alleged in the ASOC.
A retrial would add to the delay in resolving the proceeding and the expense to the parties. Mr Gardem has pleaded, expressly or by implication, the material facts upon which his case is based. His rights can be determined by reference to those facts and the correct statute. The defendant does not object to the court’s determining the trial on the basis of the correct statute. Mr Gardem’s submission that the defence will not be unduly affected by a retrial is rejected. The defendant would be forced to accept further delay and be put to further expense and anxiety. Mr Gardem did not offer to pay the defendant’s legal costs which would be wasted if the factual issues were retried. It is almost certain that if this trial were abandoned, Mr Gardem would be ordered to pay the defendant’s costs of the trial to date and the proceeding would be stayed until the costs were paid. That is an unsatisfactory outcome.
The defendant opposes a retrial. I refuse Mr Gardem’s application for a retrial.
The defendant submitted on the issue of the applicable statute (with my findings identified in italics) that:
1. “… s.75 of PIDA seems to contemplate that there may be a PIDA reprisal claim in respect of a pre-PIDA act of reprisal…” I reject that submission by reference to the words of section 75. The words of section 75, set out below, contemplate no such thing. Section 75 refers to only such reprisals as happen “after the commencement” of PIDA.
2. “the better view would seem to be that Mr Gardem’s case should be considered (in its totality) under the WPA. The defendant has no objection to such a course being taken…”[4]I reject the notion that two views are tenable. PIDA is not applicable for the reason above. WPA is the relevant statute for the reasons which follow.
[4]Defendant’s closing submissions par 12.
3. “This could be achieved by simply treating the relevant WPA provisions as alternatives to the PIDA provisions in the statement of claim and defence.”
4. The relevant WPA provisions are practically the same as the corresponding PIDA provisions;[5]and
5. “Should the Court come to the view that the case should be considered under PIDA, the defendant would have no objection to that course either.”
[5]Defendant’s closing submissions par 13.
The defendant offered no basis for its submission that the case should be determined under WPA. The choice of the proper statute does not depend upon whether the “relevant” WPA provisions are practically the same as the corresponding PIDA provisions. It is WPA which applies.
It would be an error to apply the provisions of PIDA, even if the defendant’s submission is correct that the relevant provisions of PIDA are practically the same as the provisions of the repealed WPA.
Mr Gardem pleaded[6] that his disclosures were by:
[6]ASOC pars 3 and 10A.
1. Letter dated 27 June 2008;
2. Document dated 6 June 2008 “concerning the continuation of the practice of issuing purchase orders to favoured suppliers rather than to the makers of successful offers following public tendering processes”;
3. Document dated 12 June 2008 “concerning further purchasing aberrations”;
4. Document dated 10 July 2008 “concerning the purchase of caravans when the purchasing process was contrary to law”;
5. Document dated 17 July 2008 “concerning the internal audit function”;
6. Oral disclosure on 8 October 2008 “when the Plaintiff told the Defendant his practices about the use of on-going supply arrangements without resorting to public tender, were unlawful”;
7. Document dated 25 October 2008 “when the Defendant was informed about continuing purchases aberrations the use of unlicensed building contractors, the failure of a senior employee to pay to Council the scheduled building fees which applied to private developments, and other episodes of maladministration”;
8. Oral disclosure on 26 October 2008 “when the Defendant was advised Council had written to advise it did not have the capacity to audit a fund; that advice was written in circumstances where the plaintiff had done that work since early 2007”;
9. Oral disclosure on 26 November 2008 concerning purchases which summed to greater than $100,000 contrary to law and or policy”.
Mr Gardem alleged[7] acts by the defendant and by Council between August 2008 and 25 September 2009 which were further alleged[8] to amount to the taking of a reprisal.
[7]By ASOC pars 11 to 16.
[8]By ASOC par 18.
The dates from the first alleged disclosure to the last alleged reprisal are from 6 June 2008 to 25 September 2009. During that period, WPA was in force and PIDA was not.
WPA was repealed in 2011 by section 72 of PIDA.
The statutory starting point is the Acts Interpretation Act 1954 (AIA) which applies to all the State’s Acts[9] and which, by its Part 6, specifies the consequences of an Act’s repeal.
[9]AIA s 2.
The AIA provides in Part 6 at s 20:
20 Saving of operation of repealed Act etc.
…
(2) The repeal or amendment of an Act does not –
…(c) affect a right, privilege or liability acquired, accrued or incurred under the Act; or
…
(e) affect an investigation, proceeding or remedy in relation
to a right, privilege, liability or penalty mentioned in
paragraph (c)...
It follows that any right which Mr Gardem had under WPA to claim damages for losses he suffered as a consequence of reprisals for his public interest disclosures is a right unaffected by the repeal of WPA. That does not rule out the possibility that the subsequent statute, PIDA, is also a source of rights to damages for reprisals which occurred before PIDA became law.
AIA’s application can be displaced by a contrary intention appearing in any Act.[10] It makes PIDA the next logical statute for analysis, because PIDA is the statute under which Mr Gardem sues for damages. One looks to PIDA to determine whether it purports to retrospectively impose obligations or to confer a right to damages for reprisals occurring before PIDA became law.
[10]AIA s 4.
PIDA at s 42 provides:
42 Damages entitlement for reprisal
(1) A reprisal is a tort and a person who takes a reprisal is liable in damages to any person who suffers detriment as a result.
…
PIDA s 42 is the section pursuant to which Mr Gardem claims that the defendant is liable for damages.[11] PIDA s 42 does not expressly purport to apply to reprisals which preceded the date when PIDA came into force.
[11]ASOC par19.
Does the definition of “reprisal” in PIDA include conduct prior to PIDA? The word “reprisal” is defined in PIDA by reference to 3 places. They are PIDA ss 4 and 40 subsections (1) and (3) and the Dictionary at schedule 4.
PIDA s 40 provides, so far as is relevant:
“40 Reprisal and grounds for reprisal
(1)A person must not cause, or attempt or conspire to cause, detriment to another person because, or in the belief that—
(a)the other person … has made, or intends to make, a public interest disclosure…
(3)A contravention of subsection (1) is a reprisal or the taking of a reprisal.”
In short, PIDA s 40 (3) provides that a “reprisal” is a contravention of PIDA section 40 (1). One could not contravene PIDA s 40 (1) until that section came into force in 2011. That reinforces the conclusion that PIDA at section 42 creates a right to damages for reprisals occurring after PIDA came into force and does not create rights in respect of reprisals taken before PIDA came into force.
PIDA at Chapter 8 contains transitional provisions for dealing with disclosures made under the repealed WPA. Chapter 8 of PIDA relevantly provides:
74 Disclosures made under repealed Act
A public interest disclosure made under the repealed Act before the commencement of this section is taken, from the commencement, to be a public interest disclosure under the new Act.
75 Vicarious liability of employers
Proceedings under section 42 of the new Act may be taken against an employer of a person who causes detriment to another person in reprisal for a public interest disclosure only if the reprisal happens after the commencement.
The “repealed Act” referred to in sections 74 of PIDA is WPA. The “commencement” referred to in sections 74 and 75 of PIDA is a date in 2011.
Chapter 8 of PIDA deals with some public interest disclosures which were made under the repealed WPA. Chapter 8 should not be misunderstood as applying to all public interest disclosures which were made under WPA. Chapter 8 is concerned only with the limited group of public disclosures made under WPA for which reprisals were made after PIDA came into force. That is made obvious by the words of PIDA s 75.
In practical terms, Chapter 8 of PIDA would have been relevant if Mr Gardem had alleged that the defendant had made a further reprisal in 2011 after PIDA was in force. If such a further reprisal had been alleged, PIDA would have been the source of statute law for determining Mr Gardem’s claim for damages for that further reprisal, even though the public interest disclosures were made while WPA had been in force. It seems that on that factual hypothesis, the defendant’s employer, as a result of section 75 of PIDA, may have been able to be joined as a second defendant in respect of the claim for damages suffered as a result of the last hypothetical reprisal in 2011. It would have been necessary to consider WPA for the source of law for the claim for damages for the reprisals which occurred while WPA was in force and PIDA for the source of law for the claim for damages for the hypothetical reprisal taken in 2011.
Mr Gardem’s rights and the defendant’s liabilities are governed by the provisions of WPA. PIDA does not govern Mr Gardem’s rights or the defendant’s liabilities. It follows that the ASOC alleged the application of the wrong statute.
The defendant has raised no objection to Mr Gardem’s case being assessed against the “relevant” provisions of WPA.
Mr Gardem did not attempt to identify the relevant provisions of WPA. The defendant did, but omitted reference to WPA s 20, which was somewhat similar to PIDA s 12 (1) (d) and was made relevant by the ASOC’s reference to PIDA s 12.
The provisions of the Whistleblowers Protection Act 1994 (Qld) repealed
I will highlight the provisions of the WPA which reveal what must be disclosed to make a disclosure a public interest disclosure (PID). WPA’s provisions relevant to this proceeding’s issues were, at all relevant dates in 2008 and 2009, as follows:
“4 Definitions and dictionary
The dictionary in schedule 6 defines particular words used in this Act.
…
7 What is the general nature of the Act’s scheme?
…(1) The scheme gives protection only to a public interest disclosure …
14 What types of information can be disclosed?
(1) The types of information that may be disclosed by a public interest disclosure … are specified in sections 15 to 20.
(2) A person has information about conduct or a danger specified in sections 15 to 20 if the person honestly believes on reasonable grounds that the person has information that tends to show the conduct or danger.
15Public officer may disclose official misconduct
A public officer may make a public interest disclosure about someone else’s conduct if—
(a)the officer has information about the conduct; and
(b)the conduct is official misconduct.
16Public officer may disclose maladministration
A public officer may make a public interest disclosure about someone else’s conduct if—
(a)the officer has information about the conduct; and
(b)the conduct is maladministration that adversely affects anybody’s interests in a substantial and specific way.
17Public officer may disclose negligent or improper management affecting public funds
(1)A public officer may make a public interest disclosure about the conduct of another public officer, a public sector entity or a public sector contractor if—
(a)the officer has information about the conduct; and
(b)the conduct is negligent or improper management directly or indirectly resulting, or likely to result, in a substantial waste of public funds.
(2)The disclosure can not be based on a mere disagreement over policy that may properly be adopted about amounts, purposes and priorities of expenditure.
18Public officer may disclose danger to public health or safety or environment
(1)This section applies if a public officer has information about a substantial and specific danger to public health or safety or to the environment.
(2)The public officer may make a public interest disclosure of the information.
19Anybody may disclose danger to person with disability or to environment from particular contraventions
(1)This section applies if anybody has information about –
(a)a substantial and specific danger to the health or safety of a person with a disability; or
(b)the commission of an offence against a provision mentioned in Schedule 2, if commission of the offence is or would be a substantial and specific danger to the environment; or
(c)a contravention of a condition imposed under a provision mentioned in Schedule 2, if the contravention is or would be a substantial and specific danger to the environment.
20 Anybody may disclose reprisal
Anybody may make a public interest disclosure about someone else’s conduct if –
(a) the person has information about the conduct; and
(b) the conduct is a reprisal.
…
41Reprisal and grounds for reprisal
(1)A person must not cause, or attempt or conspire to cause, detriment to another person because, or in the belief that, anybody has made, or may make, a public interest disclosure.
(2)An attempt to cause detriment includes an attempt to induce a person to cause detriment.
(3)A contravention of subsection (1) is a reprisal or the taking of a reprisal.
(4)A ground mentioned in subsection (1) as the ground for a reprisal is the unlawful ground for the reprisal.
(5)For the contravention to happen, it is sufficient if the unlawful ground is a substantial ground for the act or omission that is the reprisal, even if there is another ground for the act or omission.
…
43Damages entitlement for reprisal
A reprisal is a tort and a person who takes a reprisal is liable in damages to anyone who suffers detriment as a result.
Schedule 6 Dictionary
administrative action is an act or omission of an administrative character done or made by, in or for a public sector entity, and includes, for example-
(a) A decision or failure to decide;
(b) A formulation of a proposal or intention;
detriment includes—
(a)personal injury or prejudice to safety; and
(b)property damage or loss; and
(c)intimidation or harassment; and
(d)adverse discrimination, disadvantage or adverse treatment about career, profession, employment, trade or business; and
(e)threats of detriment; and
(f)financial loss from detriment.
…
disability of a person has the same meaning as in the Disability Services Act 2006.
…
maladministration is administrative action that is unlawful, arbitrary, unjust, oppressive, improperly discriminatory or taken for an improper purpose.
…
official misconduct has the same meaning as in the Crime and Misconduct Act 2001.
…
public interest disclosure means a disclosure of information specified in sections 15 to 20 of the Act made to an appropriate entity and includes all information and help given by the discloser to an appropriate entity.”
Identifying Mr Gardem’s case under WPA
Identifying Mr Gardem’s case without prejudicing the defendant should have been a 2 step process:
1. Identify the material facts pleaded; and
2. Determine what rights and liabilities would arise under WPA, should those facts be proven.
It was not simple. Mr Gardem appeared for himself. He is not a lawyer. Mr Gardem made his own written submissions, guided by a publication about PIDA. His ASOC purports to have been settled by counsel. I am unsure whether it was. In a discussion about the meaning of one paragraph, Mr Gardem said that he was the paragraph’s author. Whether settled by counsel or not, the ASOC identified the wrong statute, pleaded two statutory terms which were not in the statute and omitted several material facts, leaving it to the reader to infer those facts from sections in the wrong statute, PIDA.
One example demonstrates the problem. The ASOC appropriately pleads the material fact that a letter dated 27 June 2008 was sent disclosing certain matters. By its next two paragraphs it alleged that “4. The complaint amounted to a ‘public disclosure’ pursuant to s. 11 of the (PIDA) Act.” and “The public disclosure was authorised by s 12. and/or s. 13 of the (PIDA) Act”. In so doing, the ASOC left to inference the facts material for a claim under PIDA. PIDA ss 12 (1) and 13 (1) described at least eighteen factual bases upon which a disclosure would be a PID. The ASOC did not nominate which bases Mr Gardem relied upon. The ASOC omitted to allege the material fact of whether the information disclosed was one or more of:
1. A substantial and specific danger to the health or safety of a person with a “disability” as described in PIDA s 12(1) (a); or
2. The commission of an offence or the contravention of a condition mentioned in schedule 2, if that commission or that contravention would be a substantial and specific danger to the environment as described in PIDA s 12 (1) (b) and (c); or
3. Conduct that could, if proved, be a reprisal as described in PIDA s 12 (1) (d) or corrupt conduct or maladministration that adversely affects a person’s interests in a substantial way as described in PIDA s 13 (1) (a) (i) and (ii); or
4. A substantial misuse of public resources as described in PIDA s 13 (1) (b); or
5. A substantial and specific danger to public health or safety as described in PIDA s 13 (1) (c); or
6. A substantial and specific danger to the environment as described in PIDA s 13 (1) (d).
If it was a material fact, the ASOC also omitted to allege:
1. Whether Mr Gardem had information that tended to show that conduct or other matter, in conformity with PIDA s 12 (3) (b); or alternatively
2. Whether Mr Gardem honestly believed on reasonable grounds that he had information that tended to show the conduct or other matter, in conformity with PIDA s 12 (3) (a).
Identifying the material facts from the ASOC requires one to draw inferences. That requires a version of PIDA in force when the ASOC was filed. To ascertain what rights and liabilities would arise on those material facts one requires a version of WPA’s relevant sections in force when the alleged disclosures and alleged reprisals took place.
PIDA must be considered even though it is not the governing statute. It must be considered to infer what material facts are implied by references to PIDA’s sections. PIDA becomes a glossary explaining the meaning of several paragraphs of the ASOC. The ASOC alleges that disclosures were, within the meaning of PIDA, a “public disclosure”[12] and a “public information disclosure”[13]. Neither term appears in PIDA. The ASOC’s use of those two terms by reference to PIDA is nonsense. The term, “public information disclosure”, does not appear in WPA. The term, “public disclosure”, appeared in a heading at section 8 of WPA but nowhere else in WPA. If those two terms were each treated as misnomers for “public interest disclosure” within the meaning of PIDA, those parts of the ASOC would become intelligible. “Public interest disclosure” is the probable meaning of a “public disclosure” or a “public information disclosure” where those terms appear in the ASOC. That is how I interpret them.
[12]Examples are at ASOC pars 4, 5 and 6.
[13]Examples are at ASOC pars 8Aa, 9, 10A and 10B.
The ASOC at paragraphs 3, 4 and 5 alleges, in effect, that Mr Gardem’s first disclosure, by letter dated 27 June 2008, was “authorised” by s 12 and/or s13 of PIDA. The ASOC paragraph 10D alleges, in effect, that 8 subsequent disclosures were “authorised” by s 13 of PIDA.
PIDA s 12 identifies four matters and PIDA s 13 identifies five matters which may be a PID. I infer that the ASOC, by pars 3, 4 and 5 alleges that the disclosure by letter dated 27 June 2008 was of information about the conduct or the three other matters set out in PIDA s 12 and/or the conduct and four other matters set out in PIDA s13. The author of the ASOC might have intended to imply allegations that Mr Gardem honestly believed on reasonable grounds that the information tended to show the conduct or other matters. But that would have required an express pleading and may not be left for implication.[14] I infer that the ASOC, by pars 10A, 10C and 10D alleges that the 8 subsequent alleged disclosures are alleged to be of information about the conduct and four other matters set out in s 13 of PIDA.
[14]UCPR r150 (1) (k).
As the ASOC left material facts to be inferred from references to PIDA ss 12 and 13, I infer that the ASOC implied the allegation of all material facts required to satisfy all or any of the requirements of ss 12 (1) and 13 (1) of PIDA.
The 9 topics in PIDA ss 12 (1) and 13 (1) have near equivalents in WPA.
PIDA and WPA each distinguish between persons and public officers. Like PIDA, WPA permitted any person to make PIDs on four prescribed topics and permitted public officers to make PIDs on five prescribed topics. During Mr Gardem’s employment by the Council, the Council was a “public service entity” within the meaning of WPA and Mr Gardem was a “public officer” within the meaning of WPA. Those facts are accepted by the defendant. Mr Gardem was also a person. It follows that Mr Gardem was authorised by WPA to make PIDs on any of nine topics upon which a person or a public officer could make a PID.
PIDA s 12(1) describes information about: one danger, the commission of particular offences, the contravention of particular conditions and conduct that “could…be” a reprisal. WPA at sections 19 and 20 describes information about four, almost identical matters. The difference is between PIDA s 12 (1) (d) and WPA s 20 (a). Under WPA s 20 (a), a precondition for making a PID about someone else’s conduct is that the conduct “is a reprisal”. Under PIDA s 12 (1) (d) the precondition is that the conduct “could, if proved, be a reprisal”. PIDA’s condition may be easier to satisfy.
The ASOC, when pleading Mr Gardem’s case by reference to the four matters in PIDA at section 12 created no practical obstacle to inferring material facts.
PIDA by s 13(1) describes PIDs of five matters.
The five matters identified in PIDA s 13(1) at (a)(i), (a)(ii), (b), (c) and (d) respectively, generally match the five matters described in WPA at ss 15(b), 16(b), 17(1)(b), 18(1) and 18(1) respectively. WPA s 18(1) deals with at least two different dangers. The ASOC, when pleading Mr Gardem’s case by reference to the five matters in PIDA at section 13, created no practical obstacle to inferring material facts.
There is at least one material difference between PIDA s 13(1)(b) and WPA s 17(1)(b). The matter in PIDA s 13(1)(b) is “a substantial misuse of public resources (other than an alleged misuse based on mere disagreement over policy that may properly be adopted about amounts, purposes or priorities of expenditure)”. That matter roughly corresponds with the matter in WPA s 17(1)(b): “negligent or improper management directly or indirectly resulting, or likely to result, in a substantial waste of public funds”. The ASOC implies material facts by reference to PIDA s 13. That is sufficient to define Mr Gardem’s case by reference to the matter in WPA s 17(1)(b). It follows that if Mr Gardem is to prove that he made a PID as defined by the WPA on this topic, he must prove that:
1. He disclosed conduct which was “negligent or improper management”; and
2. The conduct was “directly or indirectly resulting, or likely to result, in a substantial waste of public funds.”
Arguably, a plaintiff whose disclosure was made when PIDA came into force would not be obliged to prove the second item, namely the actual or likely substantial waste of public funds.
Notwithstanding that the ASOC wrongly alleged that Mr Gardem’s disclosures were authorised by PIDA, consistently with the defendant’s lack of objection, I can identify which PIDs are implied for each disclosures and consider it by reference to WPA. It potentially requires me to determine whether a disclosure by letter of 27 June 2008 was of any one or more of the nine matters in WPA at ss 15(b), 16(b), 17(1)(b), 18(1) and 18(1), 19(1)(a), (b) and (c) and 20(b). The ASOC narrowed the issue in respect of the 8 other alleged disclosures. The ASOC impliedly alleged that the 8 other disclosures were each on one or more of 5 types of conduct or matter. I must determine whether any of the other 8 disclosures was on one or more of 5 matters in WPA at ss 15(b), 16(b), 17(1)(b), 18(1) and 18(1).
Has Mr Gardem proved the 9 disclosures alleged?
The ASOC alleges the making of disclosures on nine occasions. Five of the nine are evidenced by documents which are easily identified: A letter and four memos. The third issue is whether the four, further disclosures were established by evidence.
The four contentious disclosures were alleged by Mr Gardem in ASOC[15] to be:
[15]ASOC par 10A (d), (e), (g) and (h).
(d) By document dated 17 July 2008 concerning the internal audit function.
(e)Orally, on 8 October 2008, when Mr Gardem told the Defendant his practices about the use of on-going supply arrangements without resorting to public tender, were unlawful.
…
(g)Orally, on 26 October 2008 when the Defendant was advised Council had written to advise it did not have the capacity to audit a fund; that advice was written in circumstances where Mr Gardem had done that work since early 2007.
(h)Orally, on 26 November 2008 concerning purchases which totalled more than $100,000 contrary to law and/or policy.
There is no evidence of that document dated 17 July 2008 or of those three conversations. Mr Gardem made no mention of them in evidence. Mr Gardem had the onus of proof of his making those four disclosures. Mr Gardem did not satisfy his onus.
Facts
Mr Gardem was born on 25 October 1944 and is 73 years of age.
The Council’s Shire is in far north Queensland. At the centre of the Shire is Georgetown. The Shire is about halfway between Cairns and Normanton.
At all material times:
1. The Council was a “public sector entity” within the meaning of WPA;
2. From 3 June 2008 the defendant was employed by Council as its Chief Executive Officer; and
3. Until the Council terminated Mr Gardem’s employment in 2009 Mr Gardem’s employment by Council was as a Senior Administration Officer (SAO).
Mr Gardem started work with the Council in about June 2007. He held a Bachelor of Business degree obtained from Charles Sturt University in 1984. He had significant and continuous work experience from then until he stopped work in March 2009. He was admitted as a fellow of the Institute of Public Accountants on 27 February 2004. At the time Mr Gardem began work for the Council, the Chief Executive Officer was a Mr Olsen. While Mr Gardem filled the position of SAO, he was designated as a level 4. Ordinarily, pay rates vary with the level applied to an employee. But the pay rate offered by Mr Olsen was higher than appropriate for an SAO level 4. Mr Gardem was paid in 2007 as if he was a level 9, an amount of approximately $70,000pa. There was no position description for Council’s employees which matched the responsibilities Mr Gardem undertook. His higher wage was consistent with his being required to perform more duties than would be expected of an SAO level 4. Mr Gardem found it happy and fulfilling until Mr Olsen left in October 2007. Upon Mr Olsen’s departure, another council employee, Ms de Graaff took an acting position as CEO. Council continued to pay Mr Gardem’s salary at a rate appropriate for level 9 and did so until after he ceased attending work in 2009.
The reshuffle of staff meant that Mr Gardem was entrusted with further duties including the duty to countersign the Council’s creditor payment system. It is uncontentious that at all material times Mr Gardem was employed as an SAO. But he regarded the responsibilities he undertook after the reshuffle as meaning that he was performing as an acting Director of Corporate Services from November 2007.[16]
[16]Exhibit 90 p310.
Mr Gardem explained the problems he encountered with his responsibility to countersign. He did not identify a period for the events he recalled. Before countersigning for any payment, Mr Gardem would ensure that Council had made an order to purchase and that the order was proper in the sense of complying with any precondition for purchase which Mr Gardem believed were specified in the policy. He would ensure that Council received an invoice from the supplier and that the invoice carried a stamp or other that there was some other document from Council indicating that the goods had been supplied and that the prices demanded were correct. Mr Gardem regarded his signature as his agreement that everything was in accordance with Council’s purchasing policy. Mr Gardem explained his understanding of the policy as being that:
1. Depending upon the cost of an order, policy might require that three quotations be received before the order could be validly placed;
2. Depending on the cost of a purchase order, some orders could be oral but others had to be in writing.
3. An agreement to supply $15,000.00 worth of equipment per week for ten weeks was not to be treated as ten agreements to supply $15,000.00 worth but as one agreement for supply of more than $100,000.00 and that Council policy required compliance with different protocols for the larger order.
4. Council had a list of approved suppliers. The list was compiled by Council from tenders submitted by suppliers. The policy was that any supplier must retender within 2 years or be ineligible to receive a purchase order.
5. Purchasing officers were not at liberty to order from a supplier whose tender was two years old.
6. A purchasing officer proposing to make an order should check the tender dates and choose a different supplier on the list, if the original preferred supplier had an out of date tender.
7. If an appropriate supplier on the list could not supply, the purchasing officer was to invite supply from the next appropriate supplier on the list.
8. A creditor’s invoice could not be paid unless it was correct in every respect.
9. Some suppliers of services, including local suppliers, needed to maintain licences with the Building Services Authority to be eligible to supply building services.
At periods during his career with Council, Mr Gardem was called upon 20 to 30 times per week to authorise a payment by countersigning for payment. But he explained:[17]
if the purchases were correct, it would be a matter of moments, maybe minutes to assess and authorise a payment, but if they were not correct in any significant detail it would take a long time to assess them and often the assessment would lead to rejection. I wouldn’t authorise them. If I didn’t authorise a payment it meant that the creditor didn’t get paid or didn’t get paid on time and through my supervisors I was greatly influenced to pay them, and I usually did not which meant that someone else – so firstly it meant it had to be taken out of the payment set and other creditors would also not be paid or not be paid on time, or the administrative staff had significantly extra work. All of these things built up tensions and stress, particularly for me. Nevertheless, regardless of the pressure to pay them I usually didn’t pay them. The usual reason that I didn’t pay them was because they were not – the purchases were not made after the required competitive tendering process.
[17]T1-15
Mr Gardem found the practice of one purchasing officer to be “immaculate”. But he found that others’ practices were not. Mr Gardem was conscientious about compliance with rules by Council, by the Mayor, by councillors and by Council’s employees, including his managers. I am satisfied that some must have regarded him as conscientious to a fault. Once he formed a view that rules had been prescribed by legislation, protocols or otherwise, Mr Gardem was a stickler for adhering to them and for recommending adherence by others. His conscientious approach about rules was inconvenient for some others. It is reasonable to infer that it caused some to be annoyed and resentful, both in the organisation and among external suppliers. The inference is consistent with Mr Gardem’s belief that he became increasingly unpopular at the Council office.
On 15 March 2008 Mr Gardem applied for the position of CEO for the council. He was unsuccessful.
By April 2008, Mr Gardem’s role as acting Director Corporate Services was finished.[18] He did not explain what change to his duties flowed from his discontinuing that role. I infer that the change meant that his duties reduced and his spare time increased.
[18]Exhibit 90 p310.
On 24 April 2008 Mr Gardem wrote a three page (excluding attachments) letter[19] to the Mayor advising, among other things:
“I have previously advised you that serious breaches of policy, protocol and law occur regularly at Etheridge Shire Council and to confirm advice that you have a responsibility to act to stop their continuance.
Included is behaviour by the acting CEO that appears to satisfy the criteria for the establishment of the offence of workplace harassment, directed at me.
…Some of the information I have made available to you may be too complex to be clearly understood by untrained persons. Consequently you may consider forwarding this communication in full to an accountant and/or solicitor for appraisal and report…
[19]Exhibit 78.
The defendant began work as CEO for the Council on 3 June 2008. When the defendant was interviewed for the role of CEO with Council it was by a panel which consisted of the Mayor, the Deputy Mayor and the Acting CEO. They explained that one of the priorities, if he succeeded in obtaining the position, was a thorough review of the Council’s staff structure. That was an understandable priority, as there were a number of staff for whom there were no job descriptions. Notably, within three weeks of starting, the defendant was given formal authorisation to review the Council’s staff structure.[20]
[20]Exhibit 85, p 14.
The defendant was responsible for the overarching administration and the operational efficiency and performance of the Council. The Council had about 100 staff. Four persons were to report directly to the defendant. Those persons were the Director of Engineering, the Director of Corporate Services, the Executive Officer and the Work Place Health and Safety Officer. They did not include Mr Gardem. Mr Gardem was to report to the Director of Corporate Services.
On 3 June 2008, the day the defendant began work, Mr Gardem sent a full page memorandum to the defendant, to the Director of Corporate Services and to two other Council officers attaching his third version of draft purchasing policy. This was notwithstanding that Mr Gardem was to report to the Director of Corporate Services. Mr Gardem’s relationship with the Director of Corporate Services was strained and confrontational. He had written[21] to the Mayor to accuse the Director Corporate Services of harassment and breaches of the law. That may explain why Mr Gardem reported to the defendant. Mr Gardem’s memorandum proposed unspecified changes to Council’s purchasing policy. The title to the memo is self-explanatory “Draft Purchasing Policy, version 3 – Policy 25, Purchasing Policy and Procedures”.[22] The draft was Mr Gardem’s work. His one page memorandum expressed concern that purchasing practices were non-compliant with existing Council purchasing policy and non-compliant with the Local Government Act 1993. He observed in his memo that “creating workable purchasing protocols that are good for small and remote organisations is a bit complicated, but considering the risks to Council of getting this part wrong, it really is essential that present practices are reviewed and that compliance does in future occur.”
[21]Exhibit 78
[22]Exhibit 53.
By 4 June 2008 the defendant asked Mr Gardem to complete his draft purchasing policy for presentation to Council, with a view to its adoption at the next general meeting. The defendant instructed the Director of Corporate Services to follow up the matter with Mr Gardem.
Alleged public interest disclosure 6 June 2008
On 6 June 2008 Mr Gardem forwarded a memo[23] advising the defendant:
[23]Exhibit 1.
One of my roles is to sign or countersign payments made by Council to suppliers. It appears some practices are seriously different in form and intent to the specifications in Policy 25…
Mr Gardem enclosed with his memo a copy of a further four page, single line spaced memo dated 22 May 2008.[24] It had three and a half pages of Mr Gardem’s opinions and observations about complexities which arise when it comes time to authorise a payment. The pair of documents are alleged to be a PID. They are the second disclosure established by the evidence. The enclosed memo of 22 May 2008 is difficult to read because of its length, verbosity and lack of an obvious point, but commencing at the end of the third page there is something which may be relevant to the allegation that there was a PID because it hints at impropriety. I will highlight the part that appears relevant to impropriety. From the bottom of page 3 the context reads:
Council and its executive, and its purchasing officers have been informed over the last several months that the practice of entering contracts with persons who are not licensed to work in Queensland in circumstances where a license is required, is wrong. Notwithstanding that, the practice persists. Policy 25 gives clarity to the rule that countersigning officers are not to authorise payments if procedures are not correct in every detail, and I imagine a countersigning officer who knowingly, wrongly pays a supplier, will be subject to sanctions…
There will be a new set of payment vouchers for subcontractors ready to be passed to countersigning officers next Wednesday 28 May…some of the vouchers will fail to comply with Policy 25 and thus will be incapable of being authorised by a countersigning officer on that day…there appears to be an urgent need for executive attention to the issues I have raised.
[24]Exhibit 2.
Because the defendant had authorised Mr Gardem two days earlier to complete his draft purchasing policy for presentation to Council, it is not obvious why Mr Gardem would send the new CEO, that is the defendant, this further memo or why he would enclose a copy of a memo he had sent to the Acting CEO, the Director of Engineering Services and the Senior Financial Officer on 22 May 2008. They were four pages to read without any accompanying request. The CEO was not a person to whom Mr Gardem should ordinarily have been reporting. If there was “an urgent need for executive attention” as the memo of 22 May asserted, efficiency would dictate that Mr Gardem to direct his energy to completing the draft purchasing policy, or to telling his line manager what was required, or, if it was a matter that required the attention of the defendant, telling the defendant expressly what Mr Gardem wanted from the defendant.
Alleged public interest disclosure on 12 June 2008
On 12 June 2008 Mr Gardem sent a half page memo[25] to the defendant regarding Policy 25 and advised:
…I was reviewing creditor’s payments for payment yesterday. The first payment voucher set…covered plant hire valued at $25,587.00 and therefore falls into purchasing category “B”. Under Policy 25, category B purchases require a written specification and at least three written quotations. There has to be evidence of all of that attached to the payment voucher, but there was no evidence attached…Everyone but me in the Shire will say the sky will fall if policy is adhered to. I say the issues can routinely be managed and if they are, the Shire will benefit because it is usually cheaper if one gets things right the first time…
[25]Exhibit 3.
By 12 June 2008, the defendant had been employed for eight days and had received five pages of opinion about Council’s purchasing policy from Mr Gardem who would ordinarily be expected to report to someone else. Four and a half pages of opinion had been sent after the defendant had asked Mr Gardem to write a new purchasing policy.
Having the benefit of assessing Mr Gardem over many days, I have no doubt that, whatever sound advice he had to offer, the wisdom of the advice could be missed because of the manner of its delivery. The evidence, written and oral, reveals that Mr Gardem’s explanations can be too long and obtuse. Written explanations in evidence show that Mr Gardem could be extremely critical of the Mayor, councillors, those to whom he was to report and about other workers. Long critiques written at work could lack detail which would permit the reader to verify the worth of Mr Gardem’s opinions. Exhibit 2 is an example. His writing was sometimes condescending. Exhibit 78 is an example. I make these observations because it is relevant that these characteristics would have affected the way Mr Gardem’s opinions were perceived and how his opinions about work practices were perceived by the mayor, councillors, workers and by the defendant. Mr Gardem is likely to have been perceived as a pedant more concerned with strict adherence to rules than conducting efficient business and maintaining cordial relations with Council’s suppliers.
Mr Gardem cross-examined the defendant on the topic and this relevant exchange appears in the transcript:[26]
Mr Gardem: When I informed you that there were purchasing malpractices, did you cause those to be – to immediately stop?‑‑‑In response – that’s not a yes or no question, Mr Gardem. In response to that, I discussed that with yourself, Jenni Alexander, the director of corporate, on – and the director of engineering and the senior engineering staff on how best to curb that practice.
Mr Gardem: But it could’ve been done with a phone call, could it not, to the purchasing officer?‑‑‑I think it was more complex than that. It was largely surrounding plant hire and acquisition of plant and that, with a rolling program of 20 million, was a bit difficult to stop on a – on a coin, so to speak. But there was a process discussed on how we curb that, and it largely surrounded refining of policies and implementation of policies and procedures and a lot of it had to do with the implementation of a new pre-qualified panel of suppliers with processes surrounding that.
[26]T 12 July 2016 p 52 line 20.
I find that the defendant regarded:
1. The refinement and implementation of purchasing policies and procedures and the compilation of a new pre-qualified panel of suppliers with processes for selecting from the panel as a practical solution to the issues Mr Gardem brought to his attention; and
2. Mr Gardem’s preference for declining to pay suppliers’ invoices for goods and services supplied and accepted by Council as problematic.
On 17 June 2008 the defendant met with Mr Peters of the Council’s solicitors, MacDonnells Law. I infer from the letter[27] written by Mr Peters confirming the events of the conference that the defendant, who by then had been employed for two weeks, expressed:
[27]Exhibit 89.
1. Concern that Mr Gardem was occupying most of his working time writing letters and memoranda critical of Council, its employees and the Director of Corporate Services;
2. Concern that there was no position description for Mr Gardem; and
3. Difficulty identifying any benefit Council gains from the contributions of an SAO and Mr Gardem himself.
The solicitor’s advice given by that letter was that the issue could be dealt with by:
1. Performance management addressing Mr Gardem’s failure to identify appropriate tasks and reducing the time he spends developing complaints at the expense of completing his required tasks.
2. Reviewing the future of the position of SAO with a possible outcome that it be made redundant, with the effect that the incumbent Mr Gardem would need to be retrenched.
I accept the evidence of the defendant that his visit to the solicitor on 17 June was prompted by his concern about how to manage the performance of Mr Gardem, not out of a belief that Mr Gardem’s disclosures were of the serious variety amounting to a PID. The fact that a review of Mr Gardem’s position of SAO was discussed was consistent with the priority the defendant had been given when he was interviewed for the position of CEO: a thorough review of the Council’s staff structure.
Council met on 20 June 2008. Council resolved that the Mayor and the defendant meet with the Mayor and CEO of the Banana Shire Council to assess the possibility of an agreement relating to Fleet Management.[28] Management of the fleet of vehicles used by the Council had been organised by “engineering services” out of the Council’s workshop. The Banana Shire Council had a recognised expert in the field of Fleet Management, Mr Greg Curtis, whose speciality was cost effective and sustainable plant management for small regional councils. The resolution had to do with Council’s trying to make an agreement to seek the help of Mr Curtis.
[28]Exhibit 85, p 12.
The Council discussed another issue at that meeting: the Council Disaster Management Plan. At the meeting, the defendant explained that it was one of the most difficult plans to read that he had ever seen and that it was too cumbersome to implement. Council agreed generally that the plan needed to be simplified but, to comply with legislation, chose to adopt the current plan and to instruct the defendant to ensure that it was reviewed and streamlined in the following six months. Council nominated Councillor Gross as the councillor responsible for Disaster Management issues. It was not the defendant’s responsibility to appoint Councillor Gross. The Council did that.
One of the jobs Mr Gardem alleged was taken from him as a reprisal for earlier PIDs was his management of the Shire’s disaster management plan. He noticed that senior police officers and emergency services staff who had called to the Shire in the past with respect to developing the plan no longer called on Mr Gardem. To be clear, there was no job description which specified that such work was to be the duty of the SAO. Mr Gardem learned, by chance, from a female councillor that she was involved while he was not. That was possibly from councillor Gross, though the transcript showed a different name. Mr Gardem held the opinion that councillors ought not to be involved in administrative duties. Mr Gardem’s case is that the defendant was the cause of Mr Gardem’s lost opportunity to do work of the kind Mr Gardem had done relating to the disaster management plan, and that the defendant’s motive was payback for PIDs Mr Gardem had disclosed. On the evidence, it was the Council which made the decision at its meeting which impacted upon Mr Gardem’s expectations about work on the disaster management plan.
I am not satisfied the defendant caused:
1. The Council’s decision to appoint Councillor Gross as the responsible councillor; or
2. The decision by Councillor Goss to do things which Mr Gardem regarded as administrative tasks; or
3. The Council’s appointment of the defendant to review and streamline the plan within six months.
I am not satisfied that the defendant’s performance of the task assigned to him by Council, without delegating work to Mr Gardem, was suspicious, improbable, done to cause detriment to Mr Gardem or done because the content of Mr Gardem’s memos had included opinions about the difference between some requirements of policy 25 and some purchasing practices. Eventually, in 2009, Mr Curtis assisted Council. His assistance in 2009 was attributed by Mr Gardem to the defendant’s attempting to undermine Mr Gardem’s work. I am not satisfied that this was so or, as importantly, that Mr Curtis was called in to assist because Mr Gardem made PID’s.
As for grants, Mr Gardem gave evidence that his grants duties were “largely finished if not wholly finished in 2008.[112] However, he was still doing this work in May of 2009.[113] I am not satisfied that the defendant caused Mr Gardem’s work in respect of grants to diminish.
[112]T2-63:35.
[113]T2-64:40.
The defendant was partly responsible for some diminution in the workload of Mr Gardem. The defendant’s assumption of personal responsibility for the Shire’s disaster management plan is an example. I am not satisfied that the defendant assumed that responsibility because the defendant made a PID. It was explicable on other bases. The chronology for 20 July 2008 sets these out.
Specific evidence of diminution in workload related to insurance was offered by Mr Gardem. There was an insurance claim relating to a Pajero vehicle owned by the Council. Mr Gardem’s complaint was that, on 20 May 2009, Ms Alexander asked him to teach her the claims process in the context of the claim for the Pajero. I am not satisfied that the defendant caused Mr Gardem’s work in relation to insurance to diminish.
Mr Gardem conceded that he was still assisting Ms Alexander until he went on leave.
I am not satisfied that Council engaged external contractors to perform work Mr Gardem had routinely performed.
As for the redundancy of Mr Gardem’s position as SAO, an organisational review and restructure was on the Council’s agenda before the defendant started working for Council. The defendant consulted all staff including Mr Gardem who submitted a recommended organisational chart for the Corporate Services Division.[114] Mr Gardem recommended the redundancy of the position of SAO. Insofar as the defendant participated in the submission to WHK of Mr Gardem’s plan which contemplated redundancy of the SAO position, I am satisfied that there were other sound bases for doing so and am not satisfied that it was because a prior disclosure by Mr Gardem may have included a PID. I am not satisfied that the defendant tried to cause the hypothetical position of AO level 4 to be deleted from the proposed employment structure. I am satisfied that:
[114]T1(3) 44:35-45:40 and Ex 79.
1. The defendant wanted Mr Gardem to be offered a job with Council after the restructure;
2. The defendant wanted Mr Gardem to be offered nothing less than the position of an AO level 4;
3. After WHK removed an AO4 from its recommendation and Mr Goode recommended an additional position in the staff structure, the defendant wanted Mr Gardem to be offered the position of Manager, External Consultancies and Community Services after restructure;
4. The defendant wanted Mr Gardem and Mr Goode to consult with a view to making that position satisfying for Mr Gardem.
Whether the termination of Mr Gardem’s employment was a reprisal.
That requires consideration of whether:
1. Mr Gardem had made PIDs; or
2. The defendant believed that Mr Gardem had made PIDs; and
3. The defendant terminated Mr Gardem’s employment because of either of those things.
I made the relevant findings when considering the facts for 25 September 2009 and two paragraphs above.
Quantum of loss
There was no evidence called in respect of damages for loss of reputation. Lost income was not caused by the tort of reprisal. The cause of lost income was the termination of Mr Gardem’s employment. Mr Gardem has not proved loss. Mr Gardem’s submissions about his termination were consistent with a proceeding for damages for breach of contract of employment by wrongful termination. That was not the basis of his claim.
Costs and costs thrown away on 3 and 4 February and 15 July 2016
The reasons record on their front page that the hearing included 3 and 4 February and 15 July 2016. In fact, there was no evidence taken on those days. There is no transcript for those days so far as I am aware. On 3 February at about 10am I was informed that counsel for the defendant had a medical emergency shortly before 10am. I advised the parties that the matter would be adjourned until 4 February. I received advice on 4 February before 10am that counsel for the defendant had medical advice to absent himself from court that day. I advised the parties that the matter was adjourned until 11 July 2016. On 13 July at 4.35pm Mr Gardem asked that the hearing be adjourned until 15 July, explaining that he was fatigued and thought he might have the flu. His application was granted, there being no opposition. Mr Gardem did not attend on 15 July 2016. Accordingly, the hearing was adjourned to 17 August 2016. When the hearing resumed on 17 August 2016, Mr Gardem did not explain his absence on 15 July 2016.
The usual order for costs is that the unsuccessful party be ordered to pay the costs of the successful party on the standard basis. Not having heard submissions as to costs, my tentative view is that this is an appropriate case to make the usual order, adjusting it only in respect of some costs possibly thrown away by each side’s absences during the hearing. Subject to the parties’ having liberty by 4.00pm on 27 June 2018 to apply for a different order as to costs, I order that costs of the proceeding exclude counsel’s fees for 3 and 4 February and 15 July 2016 and order that the plaintiff pay the defendant’s costs of the proceeding on the standard basis. If the parties or one of them applies by 4.00pm on 27 June 2018 for a different order as to costs, the applicant or applicants for a different order for costs should notify my associate and the opposing party by 4.00pm on 27 June 2018. In case of such an application or applications, I direct that any applicant for a different order provide written submissions to my associate and the opposing party by 4.00pm on 28 June 2018. I would hear the application with other applications in the applications list from 10.00am on 29 June 2018. The respondent to any such application should provide a written outline of submissions to the court and his opponent on 29 June 2018 by 10.00am.