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Gardem v Edmistone[2018] QDC 118

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damages for reprisals for public interest disclosures which occurred while the Whistleblowers Protection Act 1994 (repealed) was in force – where that Act was repealed – where the plaintiff claims damages pursuant to the Public Interest Disclosure Act 2010 – whether that claim is misconceived – whether claim should properly have been made under the repealed Act

STATUTORY INTERPRETATION – Whistleblowers Protection Act 1994 (repealed) – whether disclosures were each a public interest disclosure – meaning of “conduct that could if proved be a criminal offence” within the meaning of the Crime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Whistleblowers Protection Act 1994 (repealed) sections 4, 7, 15, 16, 17, 18, 41 and 43 and schedule 6.

Public Interest Disclosure Act 1994 (ACT) (repealed) s. 8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 Act 2010, 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 SMOand 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

  1. [1]
    The plaintiff, Mr Gardem, sues for damages for the statutory tort of reprisal.
  1. [2]
    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.
  1. [3]
    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.
  1. [4]
    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.
  1. [5]
    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

  1. [6]
    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.]
  1. Identifying Mr Gardem’s case under WPA.
  1. Has Mr Gardem proved the 9 disclosures alleged? [5 are proved. 4 are not.[1]]
  1. 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.]
  1. 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.]
  1. Whether an unserved draft letter of termination of employment was a reprisal, or a reprisal by attempt to cause detriment? [It was not.]
  1. 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.
  1. 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.
  1. 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.]
  1. 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.]
  1. 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.]
  1. If the CEO did make a reprisal or reprisals, did any reprisal cause loss? [No]
  1. Quantum of loss.

Does the Public Interest Disclosure Act 2010, or the Whistleblowers Protection Act 1994 (repealed) govern the parties’ rights and liabilities?

  1. [7]
    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]
  1. [8]
    Mr Gardem subsequently provided written closing submissions. Insofar as his submissions dealt with this issue[3] Mr Gardem submitted, in effect, that:
  1. Mr Gardem was uncertain which statute applies;
  1. Mr Gardem applied to start the trial afresh; and
  1. “…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.”
  1. [9]
    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.
  1. [10]
    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.
  1. [11]
    The defendant opposes a retrial. I refuse Mr Gardem’s application for a retrial.
  1. [12]
    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.

  1. “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.
  1. “This could be achieved by simply treating the relevant WPA provisions as alternatives to the PIDA provisions in the statement of claim and defence.” 
  1. The relevant WPA provisions are practically the same as the corresponding PIDA provisions;[5]and
  1. “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.”
  1. [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.
  1. [14]
    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.
  1. [15]
    Mr Gardem pleaded[6] that his disclosures were by:
  1. Letter dated 27 June 2008;
  1. 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”;
  1. Document dated 12 June 2008 “concerning further purchasing aberrations”;
  1. Document dated 10 July 2008 “concerning the purchase of caravans when the purchasing process was contrary to law”;
  1. Document dated 17 July 2008 “concerning the internal audit function”;
  1. 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”;
  1. 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”;
  1. 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”;
  1. Oral disclosure on 26 November 2008 concerning purchases which summed to greater than $100,000 contrary to law and or policy”.
  1. [16]
    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. 
  1. [17]
    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.
  1. [18]
    WPA was repealed in 2011 by section 72 of PIDA.
  1. [19]
    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.
  1. [20]
    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 –

   

  1. (c)
    affect a right, privilege or liability acquired, accrued or incurred under the Act; or

 

  1. (e)
    affect an investigation, proceeding or remedy in relationto a right, privilege, liability or penalty mentioned in paragraph (c)...
  1. [21]
    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.
  1. [22]
    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.
  1. [23]
    PIDA at s 42 provides:

42  Damages entitlement for reprisal

  1. (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.

  1. [24]
    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.
  1. [25]
    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.
  1. [26]
    PIDA s 40 provides, so far as is relevant:

40 Reprisal and grounds for reprisal

  1. (1)
    A person must not cause, or attempt or conspire to cause, detriment to another person because, or in the belief that—
  1. (a)
    the other person … has made, or intends to make, a public interest disclosure…
  1. (3)
    A contravention of subsection (1) is a reprisal or the taking of a reprisal.”
  1. [27]
    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.
  1. [28]
    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.

75Vicarious 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.

  1. [29]
    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.
  1. [30]
    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.
  1. [31]
    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.
  1. [32]
    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.
  1. [33]
    The defendant has raised no objection to Mr Gardem’s case being assessed against the “relevant” provisions of WPA.
  1. [34]
    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

  1. [35]
    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.

7What is the general nature of the Act’s scheme?

             

  1. (1)
    The scheme gives protection only to a public interest disclosure

14What types of information can be disclosed?

  1. (1)
    The types of information that may be disclosed by a public interest    disclosure … are specified in sections 15 to 20.
  2. (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.

15 Public officer may disclose official misconduct

A public officer may make a public interest disclosure about someone else’s conduct if—

  1. (a)
    the officer has information about the conduct; and
  1. (b)
    the conduct is official misconduct.

16 Public officer may disclose maladministration

A public officer may make a public interest disclosure about someone else’s conduct if—

  1. (a)
    the officer has information about the conduct; and
  1. (b)
    the conduct is maladministration that adversely affects anybody’s interests in a substantial and specific way.

17 Public officer may disclose negligent or improper management affecting public funds

  1. (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—
  1. (a)
    the officer has information about the conduct; and
  1. (b)
    the conduct is negligent or improper management directly or indirectly resulting, or likely to result, in a substantial waste of public funds.
  1. (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.

18 Public officer may disclose danger to public health or safety or environment

  1. (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.
  1. (2)
    The public officer may make a public interest disclosure of the information.

19 Anybody may disclose danger to person with disability or to environment from particular contraventions

  1. (1)
    This section applies if anybody has information about –
  1. (a)
    a substantial and specific danger to the health or safety of a person with a disability; or
  1. (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
  1. (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.

20Anybody 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

  1. (b)
    the conduct is a reprisal.

41 Reprisal and grounds for reprisal

  1. (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.
  1. (2)
    An attempt to cause detriment includes an attempt to induce a person to cause detriment.
  1. (3)
    A contravention of subsection (1) is a reprisal or the taking of a reprisal.
  1. (4)
    A ground mentioned in subsection (1) as the ground for a reprisal is the unlawful ground for the reprisal.
  1. (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.

43 Damages 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-

  1. (a)
    A decision or failure to decide;
  1. (b)
    A formulation of a proposal or intention;

detriment includes—

  1. (a)
    personal injury or prejudice to safety; and
  1. (b)
    property damage or loss; and
  1. (c)
    intimidation or harassment; and
  1. (d)
    adverse discrimination, disadvantage or adverse treatment about career, profession, employment, trade or business; and
  1. (e)
    threats of detriment; and
  1. (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

  1. [36]
    Identifying Mr Gardem’s case without prejudicing the defendant should have been a 2 step process:
  1. Identify the material facts pleaded; and
  1. 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.

  1. [37]
    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
  1. 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
  1. 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
  1. A substantial misuse of public resources as described in PIDA s 13 (1) (b); or
  1. A substantial and specific danger to public health or safety as described in PIDA s 13 (1) (c); or
  1. A substantial and specific danger to the environment as described in PIDA s 13 (1) (d).
  1. [38]
    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
  1. 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).
  1. [39]
    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.
  1. [40]
    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.
  1. [41]
    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 s 13 of PIDA. The ASOC paragraph 10D alleges, in effect, that 8 subsequent disclosures were “authorised” by s 13 of PIDA.
  1. [42]
    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 s 13. 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.
  1. [43]
    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.
  1. [44]
    The 9 topics in PIDA ss 12 (1) and 13 (1) have near equivalents in WPA.
  1. [45]
    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.
  1. [46]
    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.
  1. [47]
    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.
  1. [48]
    PIDA by s 13(1) describes PIDs of five matters.
  1. [49]
    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.
  1. [50]
    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
  1. The conduct was “directly or indirectly resulting, or likely to result, in a substantial waste of public funds.”
  1. [51]
    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.
  1. [52]
    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?

  1. [53]
    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.
  1. [54]
    The four contentious disclosures were alleged by Mr Gardem in ASOC[15] to be:
  1. (d)
    By document dated 17 July 2008 concerning the internal audit function.
  1. (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.

  1. (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.
  1. (h)
    Orally, on 26 November 2008 concerning purchases which totalled more than $100,000 contrary to law and/or policy.
  1. [55]
    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

  1. [56]
    Mr Gardem was born on 25 October 1944 and is 73 years of age.
  1. [57]
    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.
  1. [58]
    At all material times:
  1. The Council was a “public sector entity” within the meaning of WPA;
  1. From 3 June 2008 the defendant was employed by Council as its Chief Executive Officer; and
  1. Until the Council terminated Mr Gardem’s employment in 2009 Mr Gardem’s employment by Council was as a Senior Administration Officer (SAO). 
  1. [59]
    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. 
  1. [60]
    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]
  1. [61]
    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;
  1. Depending on the cost of a purchase order, some orders could be oral but others had to be in writing.  
  1. 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.
  1. 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.
  1. Purchasing officers were not at liberty to order from a supplier whose tender was two years old.
  1. 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.
  1. 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.
  1. A creditor’s invoice could not be paid unless it was correct in every respect.
  1. Some suppliers of services, including local suppliers, needed to maintain licences with the Building Services Authority to be eligible to supply building services.
  1. [62]
    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.

  1. [63]
    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.
  1. [64]
    On 15 March 2008 Mr Gardem applied for the position of CEO for the council. He was unsuccessful.
  1. [65]
    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.
  1. [66]
    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…

  1. [67]
    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]
  1. [68]
    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.
  1. [69]
    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.”
  1. [70]
    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

  1. [71]
    On 6 June 2008 Mr Gardem forwarded a memo[23] advising the defendant:

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 onthat day…there appears to be an urgent need for executive attention to the issues I have raised.

  1. [72]
    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

  1. [73]
    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…

  1. [74]
    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.
  1. [75]
    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.
  1. [76]
    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.

  1. [77]
    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
  1. Mr Gardem’s preference for declining to pay suppliers’ invoices for goods and services supplied and accepted by Council as problematic.
  1. [78]
    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:
  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;
  1. Concern that there was no position description for Mr Gardem; and
  1. Difficulty identifying any benefit Council gains from the contributions of an SAO and Mr Gardem himself.
  1. [79]
    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.
  1. 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.
  1. [80]
    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.
  1. [81]
    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.
  1. [82]
    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.
  1. [83]
    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.
  1. [84]
    I am not satisfied the defendant caused:
  1. The Council’s decision to appoint Councillor Gross as the responsible councillor; or
  1. The decision by Councillor Goss to do things which Mr Gardem regarded as administrative tasks; or
  1. The Council’s appointment of the defendant to review and streamline the plan within six months.
  1. [85]
    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.
  1. [86]
    The defendant performed most of the review of the Local Disaster Management Plan. He did that in consultation with Council and Councillor Gross and with staff of Ergon Energy, of the Queensland Police Service and of the Queensland Ambulance Service.
  1. [87]
    Council also resolved at the meeting that the defendant “be authorised to restructure Council’s staffing with all contracts and staffing levels to be approved by Council.” That is a significant fact, for Mr Gardem’s case is that the redundancy of his job in 2009, and the offer of a different role with fewer responsibilities and less remuneration, were reprisals. Redundancy of Mr Gardem’s position in 2009 and an offer of a job on a lesser salary may each be detriments consistent with reprisals but they are also consistent with the completion of a restructure which was authorised this day, by Council, not by the defendant.
  1. [88]
    The defendant commenced work on the staff restructure by requesting documentation from Council staff. He formed the opinion that the structure was unworkable, that it lacked position descriptions for staff throughout the organisation. He liaised with the staff, including Mr Gardem and asked for feedback on a sustainable structure for the future.
  1. [89]
    Prior to 27 June 2008 Mr Gardem wrote a letter to the then Minister for Local Government Sport and Recreation. This letter was not alleged in the ASOC to have been a public disclosure or a PID. It presumably contained allegations by Mr Gardem about matters Mr Gardem regarded as warranting the attention of the Minister. Its only relevance is that it was referred to in Mr Gardem’s next letter dated 27 June 2008. It is not in evidence.

Alleged public interest disclosure on 27 June 2008

  1. [90]
    On 27 June 2008 Mr Gardem wrote another letter. This letter[29] was addressed to Ms Argent, policy advisor to the then Minister for Local Government Sport and Recreation.  This letter was dated 27 June 2008. It has the distinction of being the only alleged PID to have been sent to a person outside of Council.
  1. [91]
    Mr Gardem wrote by his letter of 27 June 2008, so far as appears relevant:

My letter to your Minister brought serious and also very serious matters to his attention … I am disappointed that your office has not yet attended even to those issues that are easily fixed.

In particular,

  1. (i)
    Many of our workmen toil on a daily basis for nine days straight without access to toilet facilities.  I am penalised because I raised the issue on a regular basis.  If that local rule does not elicit your immediate action, please advise why it is not also adopted universally in Queensland.

 Much of the work they do is on Main Roads jobs.  I gather your Minister has two responsibilities on this matter.

 There were no toilets for them yesterday, and unless you do something about it, there will be no toilets for them on their next working day either.  I would have thought you could have dealt with this issue at about the speed of light.

  1. (ii)
    Work place bullying is a weekly event hereThe Mayor has been informed of it and may well be properly described as a work-place bully himself.  The CEO has been informed about it.  A staff member has resigned since I first wrote to the Minister because of it.  Other staff has elevated stress levels and/or are sometimes in tears as a result of it. …

 I would have hoped that information implied a level of seriousness that required prompt attention from your office.  In fact it did not get your attention and an honest, pleasant, and efficient senior aged working lady has lost her income rather than continue to carry an unnatural burden of stress.

  1. (iii)
    Procurement aberrations valued at many thousands of dollars occur weekly.  Bullying occurs whenever countersigning officers raise complaints about the non-compliance.
  1. (iv)
    Because of an emerging issue in relation to the BSA, I have discussed current issues of serious concern with their compliance officers, since writing to your Minister.

Those are the reasons I am disappointed at the apparent lack of judicious expedition in the information I have sent to you.

Premier Bligh has been active in promoting the relevance of her government, and the need for her government to reflect her values.  And I have no doubt she is an entirely dedicated leader but, given the information that appears above, I can state her government is failing the working people of Etheridge Shire in serious ways, on a daily basis.

I know media reporters could have all of these things fixed up in a heartbeat, but I am hoping to get a confidential, appropriate and timely response through line channels, and that is why I have written restrictedly to your Minister.

Would you please further consider the contents of my first communication and the information above, and advise me a time-line for your attention to the issues, as a matter of some urgency.  My expectation is the changes that need to occur will occur while confidentiality remains intact.  I am confidant all of that can be achieved, and I am hopeful an officer who has sufficient seniority to properly deal with the issues will soon be assigned to lead a team which will investigate them.

  1. [92]
    On 2 July 2008 the defendant received a call from Mr Bruce Gould, the district engineer of the Department of Main Roads at Cairns.  The defendant learned in the call of the issues raised by Mr Gardem in relation to lack of toilet amenities provided to council road workers.  The defendant contacted council’s Senior Works Supervisor, Mr Whitaker and instructed him to audit the provision of amenities and to report back to the defendant immediately.  Mr Whitaker’s report to the defendant about four road work crews and the access to amenities was set out in a letter from the defendant to Mr Gould.[30]  It appears to have been sent to the defendant on 2 July 2008. At its worst, the report suggested that one crew camped at a place that had no toilets but that that the crew had since picked up a hire toilet.  The defendant advised:

“… this matter could have been dealt with earlier if Mr Gardem had followed reporting protocol and advised the Chief Executive Officer when the information came to hand in the first instance.”

  1. [93]
    On 8 July 2008 the defendant discussed the proposed staff restructure with Mr Gardem.  As a result of their discussion, Mr Gardem sent an email[31] on 9 July 2008 to the defendant. It attached a chart created by Mr Gardem which was Mr Gardem’s recommendation for the restructure of the section in which Mr Gardem worked, the “Corporate Stream”. Notably, Mr Gardem’s chart made no provision for an SAO, which was Mr Gardem’s job. It made no provision for a person on level 9. It did make provision for a new position: “Administration Officer, Level 4. When the defendant considered Mr Gardem’s chart, he assumed that the position Mr Gardem had in mind for his future after a restructure, was the position in the box marked “Administration Officer, Level 4”. In fact, Mr Gardem had a promotion in mind to the position at the top of that stream, Manager Corporate Services. By his email and enclosed chart Mr Gardem was recommending that his position as SAO become redundant in the restructure.
  1. [94]
    On 10 July 2008 the defendant emailed[32] to thank Mr Gardem for his suggested structure and advised that the defendant would consider the changes when compiling a final submission and would submit Mr Gardem’s comments with the submission. 

Alleged public interest disclosure on 10 July 2008

  1. [95]
    On 10 July 2008 Mr Gardem emailed[33] the defendant on the subject of “Purchase of Caravans $116k”:

I signed the documents for the purchase of the caravans as requested.

Whoever told you the purchase complies with policy or law is wrong. The purchase is not compliant … I can get it right first time up every time if you want my assistance in any future occasion we make a purchase worth more than $15k.  This purchase fails because…the CEO has to arrange for a detailed specification and the spec has to include quality assurance requirements and selection criterion.  All quotes have to be evaluated…there needs to be evidence of this, and the reasons why the lowest prices offered were not accepted (if this is the case) have to be stated… doing it legally is usually the easiest way in the long run. If you want my assistance with these notions, please ask. The new Policy will make purchasing easier again but the fairness test, and that is what these issues are about, will still stand. 

  1. [96]
    The last sentence of the email was about the new policy Mr Gardem had been instructed by the defendant to draft for submission to Council in the expectation that it would replace purchasing policy 25.
  1. [97]
    When the defendant received the email he believed that Mr Gardem was still working on the draft for a new purchasing policy for Council. I find below that the email did not purport to make a PID. In case that finding is in error, there are other facts to consider which are preconditions for liability.
  1. [98]
    On 11 July 2008 the defendant met Ms Ebler, the principal of WHK Greenwoods (WHK) at WHK’s offices in Cairns.  The purpose was to discuss engaging WHK to:
  1. review the corporate and organisational structure; (to ensure maximum employee effectiveness);
  1. review position descriptions; (to ensure clear responsibilities for deliveries);
  1. conduct interviews with key staff members and stakeholders; (to ensure cross-referencing); and
  1. report findings to the defendant with a recommended course of action, where applicable.
  1. [99]
    WHK confirmed its understanding of the requirements in a letter[34] dated 14 July 2008 to the defendant.  WHK noted that it would be available to commence a preliminary review in the week of 14 July 2008.  I accept the defendant’s evidence that he did not then, or at any time, give instructions to WHK about an outcome of their review which he wanted in respect of Mr Gardem.  The defendant gave to WHK a copy of the organisational chart which Mr Gardem had forwarded to the defendant with Mr Gardem’s email dated 9 July.  Mr Gardem’s chart was incorporated as a document into the ultimate organisational review prepared months later by WHK.[35] There is no evidence that Ms Ebler was asked by anyone to contrive to restructure so as to make Mr Gardem’s position redundant or to facilitate his retrenchment. I am not satisfied that Ms Ebler received such instructions or had that agenda when conducting her review or compiling her report and recommendations.
  1. [100]
    On 22 July 2008 the defendant met with a solicitor at MacDonnells Law in Cairns.  The defendant wanted legal advice about formal disciplinary action to be undertaken against Mr Gardem. The defendant instructed that, in conjunction with Council, he had determined that Mr Gardem’s sending the letter of 27 June 2008 to the Minister’s advisor had the potential to:
  1. Amount to insubordination in disregard for proper protocol to be followed by employees with concerns or wishing to lodge a complaint;
  1. A disregard for the authority of the Chief Executive Officer;
  1. Significantly damage the reputation of the Council, councillors and senior employees;
  1. Defame the mayor.

I regard those as plausible conclusions for the defendant to have made about the potential consequences of the letter and a reason for him to have sought legal advice about formal disciplinary action.

  1. [101]
    As a result of that meeting, the solicitors forwarded three documents to the defendant on 23 July 2008.  One was their letter confirming instructions and advising.[36]  Another was a draft letter detailing allegations of gross misconduct which the defendant might use to forward to Mr Gardem.  It was the draft of the letter sent the same day to Mr Gardem, being the first alleged reprisal.[37]  Another was a draft letter of termination.  The letter of instructions from the solicitors[38] contained these words “you have requested that formal disciplinary action be undertaken against Mr Gardem including proceeding to summary termination of his employment.” 
  1. [102]
    The defendant gave evidence that summary determination after a disciplinary proceeding was only one of the options that he had contemplated when seeking assistance from the solicitors. That evidence is consistent with other parts of the advice written by the solicitors. The advice was in effect to comply with the rules of natural justice, consider matters raised by Mr Gardem, then determine the facts, then determine the seriousness of the disciplinary breach, then consider whether summary termination was warranted, then either use the draft letter of termination or amend it according to the determination of the proper discipline relative to the seriousness of the breach. I find that the defendant had determined to keep an open mind at the hearing about its outcome and penalty. I would accept that the defendant was prepared to keep an open mind about penalty even on the hypothesis that the defendant considered that the breach was likely to be established. But no hearing ever occurred.

Alleged reprisal or attempted reprisal by letter dated 23 July 2008

  1. [103]
    Mr Gardem submitted that the first act of reprisal was the issuing of this show cause letter.[39]
  1. [104]
    Mr Gardem alleged reprisal or attempted reprisal[40] by letter dated 23 July 2008. The defendant issued a letter[41] dated 23 July 2008.  The letter asserted:

… I have set out below a number of allegations which, if substantiated could amount to serious and/or gross misconduct.

These allegations can be summarised as follows:

  1. By letters to the office of the Minister for Local Government, Sport and Recreation, including letter dated 27 June 2008 … you have inappropriately raised a number of issues without following proper protocol in a matter that is insubordinate and disrespectful to the office of the Chief Executive Officer.

Particulars

  1. (a)
    You raised the issue of workers not having access to toilet facilities.  As a Senior Administration Officer you would be fully aware of your obligations to raise any such issues directly with your immediate supervisor, or in the event that person is unavailable, with myself.
  1. (b)
    You claimed that you were “penalised because I raised the issue on a regular basis”.  This inputs that you were victimised or penalized because you have, in the past raised legitimate issues.  Any complaint of this nature should be directed to your immediate supervisor, or in the event that your immediate supervisor was involved in any victimisation or penalising of you, with myself or the Human Resources Manager of the Council.
  1. (c)
    You have complained that “work place bullying is a weekly event here”.  You know full well that there are proper processes within Council for complaints of this nature to be made, received by me, and investigated and that appropriate steps, will be taken to deal with any improper conduct.  Your report directly to the Minister’s office is in direct breach of a proper protocol and procedures.
  1. (d)
    You have made assertions to the Minister about the reasons for another staff member’s resignation and their involvement in issues for which you had no authority to do so.  Furthermore you had no proper understanding of the background of the issues referred to in your letter.  Your conduct in this regard, could, if established, be considered intentionally mischievous.
  1. (e)
    You have raised issues about “procure aberrations valued at many thousands of dollars occur weekly”.  Again, these are matters which, if you have evidence of inappropriate conduct on the part of Council officers, should be formally raised through proper channels including to your immediate supervisor and/or the absence of their availability, with myself.  You asserted that whenever complaints are raised about non-compliance “bullying occurs”.  Again this is an issue that should properly be referred to me as a formal complaint for proper investigation.  You had failed to previously report this issue to me. 
  1. By the letter dated 27 June 2008 to the Minister’s Office, you have attempted to maliciously defame the Mayor of the Etheridge Shire Council and in particular in that letter you have stated “Workplace Bullying is a weekly event here.  The Mayor has been informed of it and may well be properly described as a workplace bully himself.”  This statement appears to have been designed specifically to damage the reputation of the Mayor … in the eyes of the Minister …
  1. By your letter dated 27 June 2008 to the Office of the Minister, you have purposefully and maliciously endeavoured to damage the good standing and reputation of the Etheridge Shire Council in the eyes of the Minister … Particularly –
  1. (a)
    you imply that Council acts in complete disregard for the health and hygiene of the workers;
  1. (b)
    you imply as a workplace, the Etheridge Shire Council has a culture of workplace bullying established from the position of the Mayor downwards;
  1. (c)
    you imply that there is significant mis-management of the procurement process costing Etheridge Shire Council thousands of dollars weekly;
  1. (d)
    you have aggressively attacked Premier Bligh and her Government in a manner that reflects poorly upon the Etheridge Shire Council and its employees when you state, amongst other things “I can state here government is failing the working people of Etheridge Shire in serious ways, on a daily basis”;
  1. (e)
    you have implicitly threatened to report your concerns to the media in an effort to place inappropriate pressure on the Premier, the Minister, and the Minister’s advisors in a manner that brings disrepute to the Etheridge Shire Council.

All of the above has occurred without reference to your supervisor or myself as the CEO of the Etheridge Shire Council.

You will appreciate that the above allegations are of the most serious nature.  Before I made any determinations in respect to these allegations, I wish to afford you, together with the assistance of a representative, the opportunity to respond in writing, and in person, to these allegations.

For this purpose, I have appointed a meeting at my office at 11.00 am on Tuesday 29 July 2008.  I intend to have another senior officer of Council present as a witness.  You will be entitled to bring your representative and present written and/or oral submissions in respect to each of the above allegations.  I also will be asking you and your representative to make submissions to an appropriate penalty in the event that I do find that these allegations are substantiated and that they amount to acts of serious and/or gross misconduct.  Such submissions may include submissions as to why a termination of your employment would not be an appropriate outcome.

Until such time as these matters have been finalised, I would ask you to treat these issues with the utmost confidentiality.  I, together with other members of my Senior Executive team who are assisting in this process, will be maintaining strict confidentiality.

In the event that you require clarification of any of the above allegations or if you wish to discuss any issues relevant to this process, please contact me.

I assure you that your representative will be given every opportunity to give a full and detailed response in respect to these allegations.

  1. [105]
    When Mr Gardem received that letter he was very distressed. That was understandable. It effectively gave him six days’ notice to be prepared for a meeting at which his sacking would be in issue. It was an inadequate period within which to organise to show cause to prevent a termination of employment. He sought advice from his union. He gained an adjournment of the date for hearing to 8 August 2008.
  1. [106]
    On 7 August 2008 Mr Gardem’s union’s State Secretary wrote to the defendant:

“…The disclosures made by Mr Gardem to the Minister for Local Government, Sport and Recreation are subject to the protection of the Whistleblowers Protection Act 1994 and their remedies for reprisal against the whistleblower.  Council is prohibited from causing or attempting or conspiring to cause a detriment to Mr Gardem because he has made a public interest disclosure.  Council’s action in requesting Mr Gardem to provide responses and threaten his employment is an attempt to cause him a detriment in his employment with Council.

Accordingly, Mr Gardem is not required to provide the responses as requested and will not be attending the meeting scheduled for Friday, 8 August 2008.”

Alleged reprisal by draft letter of summary termination

  1. [107]
    The ASOC alleged a reprisal by the draft letter of summary termination. On 23 July 2008 the defendant received into his email inbox a draft letter from MacDonnells Law. So far as the defendant is aware, only two other people could access that inbox. The defendant did not place it on the Council intranet for others to see. He made a hard copy which he put in the drawer of his office. The defendant did not ever forward it to Mr Gardem. Mr Garden became aware of it by chance, seeing an electronic copy of the draft in another employee’s electronic file.
  1. [108]
    The draft termination letter[42] prepared by the solicitors specified:

“… you and your representatives provided detailed… submissions… I have carefully considered those submissions and, on the balance of probabilities, I have decided that each and every allegation in my letter to you of 23 July 2008 is substantiated.

I further concluded that the conduct on your part amounts to acts of serious and/or gross misconduct… which entitled to me summarily terminate your employment.  I have taken into account the submissions of you and your representative in respect to the level of the appropriate penalties that should be applied… After taking into account those submissions… I have decided that it is appropriate for Council to proceed to terminate your employment forthwith…

  1. [109]
    On 11 August 2008 the defendant wrote Mr Gardem a letter[43] advising that Mr Gardem’s union had written asserting that Council had threatened Mr Gardem’s employment and had attempted to cause to Mr Gardem detriment in his employment.  The defendant wrote:

We disagree … however, in all of the circumstances, Council has decided not to deal further with these allegations.  Accordingly, the request that you provide responses to the allegations is withdrawn.

  1. [110]
    The ASOC alleged that between August 2008 and May 2009 the defendant engaged in conduct which “caused or was an attempt to cause detriment to the Plaintiff because the Defendant had the belief that the Plaintiff had made public interest disclosures”.[44] It further alleged that the conduct was that the defendant:
  1. Caused the work to be undertaken by Mr Gardem to be reduced;
  1. Caused the Council to engage external contractors to perform work that would ordinarily be performed by Mr Gardem; and
  1. Undermined the position of Senior Administration Officer held by Mr Gardem.
  1. [111]
    The defendant held the opinion that Mr Gardem was particularly good in his role with communities and that he had a knack with successful applications for grants. The defendant supported Mr Gardem’s continuing responsibility for those matters.
  1. [112]
    I accept the defendant’s evidence that he did not issue any directions that Mr Gardem’s role in respect of insurance should reduce.  I accept the defendant’s evidence that he did not direct anybody to reduce consultations with Mr Gardem.
  1. [113]
    On 24 September 2008, WHK emailed the defendant:

I’m guessing you’re thinking my silence is deafening! The good news is that we’ve been very busy brainstorming your organisational structure to determine the best outcome for all. I’m preparing the job descriptions in parallel to our recommendations…

The email envisaged that the draft report would be sent to the defendant by the end of the week. The email’s terms are consistent with a report prepared independently.

  1. [114]
    When WHK completed their organisational review, in about early October 2008, it contained a recommendation[45] which provided:

3.2.2Manager Corporate Services (enhanced)

Although new, this position is vital to the management of administrative aspects within the Council. …  This position can absorb the duties of the senior administrative officer (L4) whilst managing the Finance Officer (L6) and Administration Officer – Finance (L2), Human Resources and Payroll Officer (L3), Information Technology Officer (L4) and Administration Officer – General Office Duties (L2).  The Manager Corporate Services will also manage the relationship between the depot administrator and the engineering departments.

The significant point is that this recommendation was to make redundant, the position of “senior administrative officer (L4)”.  That was the position occupied by Mr Gardem.  The review continued:

3.2.6Senior Administration Officer (L4)

Under this proposed new structure, with the effective reallocation of duties to ensure optimum productivity and efficiency, this position may be deemed to be redundant.

  1. [115]
    In about early October 2008 the defendant received WHK’s report.
  1. [116]
    WHK’s recommendation that SAO Level 4 be redundant was consistent with Mr Gardem’s recommended chart for the Corporate Stream of employees. However, WHK’s final recommendation went further. In effect, WHK recommended that the hypothetical position of Administrative Officer Level 4 be removed from the Corporate Stream of employees. That was the role the defendant had envisaged for Mr Gardem from the time he saw Mr Gardem’s chart on 9 July 2008. The defendant became concerned that the organisational chart recommended by WHK had no place for Mr Gardem. The only obvious position on the chart that he thought Mr Gardem might fill appeared to be Administration Officer, Level 2. That was a lesser role than an SAO level 4. The defendant was particularly concerned because of prior issues between himself and Mr Gardem. The defendant did not want the organisational restructure to be seen as a reprisal against Mr Gardem. The defendant contacted WHK to ask for clarification.

Alleged public interest disclosure 25 October 2008

  1. [117]
    On 25 October 2008 Mr Gardem sent a memo[46] to the defendant.  The relevant parts containing allegations about conduct are:

At our meeting yesterday… matters were discussed… and some are mentioned here for the sake of the record.

I raised the possibility the then acting CEO, Ms Dorretti deGraaff may not have made an application to Counsel for the work she did as a private developer of either the Bakers shop or the Chemists shop in Georgetown.  There is clear evidence she developed the former property with her husband, primarily using his labour, and he is a person not licensed for the work, and he did the building work contrary to the law administered by the BSA… it is not lawfully possible to develop commercial premises under some form of owner-builder arrangement.

These matters are of particular interest to me because she initiated actions against me when I spoke to her and to Counsellors about the illegal use of unlicensed building contractors by Counsellors.  Her actions directly impacted on me personally, on my health, on my roles at Council and on my ability to do my work, and they appear to be motivated by her wish to negate interference to her own illegal building activities.

… she has made other attempts to bully me into a compliant role.  A relevant example is the pressure she placed on me to sign a payment voucher for the purchase of a supposed second caravan, partly in your presence, when it is now obvious to the whole world the caravan was new, and she knew it.

… I also advised you yesterday that I had formed the view that, because of unreasonable actions by management against me over the last twelve or so months, I expect I will not be fairly treated in relation to either:

  1. (i)
    The possibility of being allocated work of a standard suitable

for my qualifications and experiences; or

  1. (ii)
    Future promotions.

… The recent staffing issues are referred to… included the promotion of a totally unqualified and generally inexperienced person who relies greatly on the advice of others to do her usual job, and who was recently my subordinate, to be my supervisor.  They also include the removal from me of duties other than duties usually performed by a middle-ranking clerk.  Additionally, they include the mechanisms that are currently in place that ensure I have no contribution to management matters or access to relevant information.

… Jenni… is as competent as would be anyone who has only had the opportunities she has had, but… it is easily provable her knowledge is significantly less than would be expected in the person having her present role.

  1. [118]
    Ms Ebler of WHK wrote to the defendant on 28 October 2008.[47]  In effect, her advice was that an expanded role for the Manager Corporate Services taking over some of the responsibilities of the present SAO and the delegation of some of the other tasks of the SAO meant that there was no need for the position of SAO.  The letter advised:

Council may wish to encourage the present incumbent (Senior Administration Officer (L4)) to apply for the Manager Corporate Services role, or for any other vacant position within the organisation.

  1. [119]
    After receiving that explanation, the defendant asked the Local Government Association Queensland Inc (LGAQ) to review WHK’s decision. I infer that the defendant remained concerned that a restructure which left Mr Gardem with significantly less responsibility could appear to be a reprisal. In response to the defendant’s request, LGAQ sent a consultant, Michael Goode, to investigate. The defendant gave Mr Goode all documents, emails and other records. The defendant did not otherwise participate in Mr Goode’s investigation.
  1. [120]
    Mr Gardem submitted that Mr Goode was employed to assist the defendant “to get out of strife with the CMC and the Department of Local Government and to deal with me” and “to find a way to get me out of my employment with Council, when he knew with certainty the reason for my disfavour was because I had made disclosures.” I am not satisfied that Mr Goode acted with a motive to get Mr Gardem out of employment. That is inconsistent with the recommendation Mr Goode ultimately made.
  1. [121]
    On 12 November 2008 Mr Gardem applied for the position of Manager Corporate Services with the council.[48] He was unsuccessful.
  1. [122]
    On 28 November 2008 Mr Goode presented an organisational review[49] to Council.  The defendant was not present.  As a result of Mr Goode’s presentation to Council he produced a new organisational structure which amended the recommendation of WHK by incorporating a new position in the structure for the Corporate Stream, called “external consultancies”.[50]
  1. [123]
    On 10 December 2008 Council met and the defendant was present.  Council adopted the recommendations by Mr Goode on 28 November 2008 regarding the amendment to the organisational structure to include a further position in the structure.[51] Council resolved that the defendant would consult with staff on the structure. Council also resolved to amend purchasing policy 25.[52]
  1. [124]
    In early 2009 the defendant asked Mr Goode to work with Mr Gardem to develop a position description for the new “external consultancies” role that would be offered to Mr Gardem.  Once the position description was finalised, the next step was to have the LGAQ consider that description and advise on the proper award description so as to determine the proper salary. 
  1. [125]
    On 5 May 2009 Ms J Alexander emailed that a consultant, David Grudgeon, was coming to work with her on the Council budget.
  1. [126]
    At all material times the Council engaged a third party, Partners in Business Pty Ltd, as internal auditors to demonstrate that the auditing was done independently. Council would not ask the company to prepare a Council budget. That company delivered three tax invoices dated 12, 12 and 15 June 2009 for “David Grugeon Consultations regarding financial management services” for the periods 5 to 10 May, 11 to 17 May and 18 to 24 May 2009.[53]  The invoices totalled about $16,000.  I accept the defendant’s evidence that Council asked that company for assistance with respect to their financial management software called Practical Computing Systems (PCS).  The only role that the business had with respect to the Council’s budget was to upload budget data into the PCS. I am satisfied that the engagement of the company to provide services was not done with a view to taking responsibilities from Mr Gardem. The services provided by the company had not historically been performed by Mr Gardem. Mr Gardem mistakenly regarded this as further support for his belief that his duties were being removed.
  1. [127]
    Council received a series of tax invoices from the Banana Shire Council in respect of work carried out by Greg Curtis in February, March, April and May 2009.[54]  The invoices total about $8,000.  I accept the evidence of the defendant that it was for the specialist services Mr Curtis provided in respect of Fleet Management.  I find that it was as a result of proposals made by Council on 20 June 2008.  The engagement of Mr Curtis was not with a view to taking responsibilities from the plaintiff. Mr Gardem mistakenly believed that it was.
  1. [128]
    On 8 May 2009 Mr Gardem effectively resubmitted his application for appointment to the position of Manager Corporate Services.[55]
  1. [129]
    Mr Cooney of LGAQ expressed his opinion in a letter[56] of 12 May 2009.  He advised that the role of “Manager, External Consultancies and Community Services” as described to him, falls firmly within the award description for a Level 4 Administrative Officer. He advised that if Council considered that a higher level was warranted, the role could be stretched to fit Level 5 if the position description expressed some further requirements which he set out in the letter.

Alleged reprisal 13 May 2009

  1. [130]
    On 13 May 2009 the defendant wrote[57] a letter of offers to Mr Gardem:

“… this letter is to formally advise you that the changes to the organisational structure of the… Council, has resulted in your position (Senior Administration Officer) being declared redundant, and in you being given status as a redeployee.  I agreed to continue to pay you the rate of pay as per your AWA until such time as the new vacant role could be finalised…

That vacant role… is within your qualifications, skill, knowledge and competence and I am pleased to offer you this role…

Accordingly,

1.You are offered redeployment within Council to this available position; or if you decline this offer,

2.You are entitled to receive redundancy payout in accordance with the severance payment formula contained in the award…; or

3.By agreement with the Chief Executive Officer, within three (3) months of being redeployed into the vacant position, you may choose to take the redundancy payment.

Note: The redundancy payout will be based on the higher rate of pay…

Accordingly, if you accept this offer, I am prepared to maintain your current salary for a further period of three (3) months.  At the conclusion of this three (3) months your salary will revert to the value of your position.

Your appointment particulars are as follows:

Employment status; Permanent.

Position Level; Level 4, Increment 4.

Your tenancy of the Council owned dwelling… in High Street, at a rent which is currently set at $100 per week is still applicable, however this will be withdrawn if you do not accept and sign a staff tenancy agreement…”

  1. [131]
    That letter carried the heading “Notification of Redundant Position – Senior Administration Officer and offer of New Position – Co-ordinator External Consultancies and Community Services”. The defendant handed the letter to Mr Gardem on 13 May 2009. Although the defendant had previously discussed the offer of a new position to Mr Gardem, it was only upon reading that heading, that Mr Gardem first learned that the co-ordinator’s position was being offered to him. Mr Gardem regarded the co-ordinator’s responsibilities to be less than those he had performed as an SAO. He had been paid at the rate of $79,231.00 per annum while an SAO and believed his pay would fall to about $43,000.00 per annum. After reading the letter on 13 May he spoke with the defendant about it later that day. The defendant confirmed the job offer disclosed in the letter.
  1. [132]
    On 13 May 2009 the defendant also gave Mr Gardem a copy of Mr Cooney’s letter and discussed Mr Gardem’s options.  The defendant explained that he was happy to maintain Mr Gardem on his current pay level while he tried out the position of Manager, External Consultancies and Community Services.  He advised that if Mr Gardem was not happy with that position after three months he would offer him redundancy as if from a position paid at his current high level.  Alternatively, if Mr Gardem was happy with the new position after the three month trial period, the defendant offered to transition him to the lower pay scale over a period of time to ease the transition.
  1. [133]
    Mr Gardem said words to the effect “is this what you think I’m worth?” and said that his legal team would be in contact. Mr Gardem left work and never returned. The circumstances of Mr Gardem’s departure suggest that the basis for leaving was disappointment and resentment rather than illness. Mr Gardem did not ever reply to the offer in the letter of 13 May which was given to him at the meeting.
  1. [134]
    The ASOC alleged that letter of 13 May 2009 was conduct which “caused or was an attempt to cause detriment to the Plaintiff because the Defendant had the belief that the Plaintiff had made” PIDs.[58]
  1. [135]
    Mr Gardem believed that Council policy and general principle was such that even if his position of SAO had been made redundant, he should have been offered something with more responsibilities than the new position. I am not satisfied that the new position created for Mr Gardem had fewer responsibilities than he had been expected to fulfil in his final months.
  1. [136]
    On 13, 14, 15 and 19 May 2009, Mr Gardem emailed the defendant advising that he was unwell that day and would not be attending the office.
  1. [137]
    On 15 May 2009 the council resolved to further amend purchasing policy 25.[59]
  1. [138]
    Mr Gardem gave evidence that he dropped into the office a few times to say that he could not attend work. He did not say which dates he physically attended.
  1. [139]
    On 20May 2009 Mr Gardem emailed to advise that he was unwell and would not be attending on 21 or 22 May 2009. 
  1. [140]
    On 25May 2009, Mr Gardem emailed advising that he was unwell and would not be attending that day or the 26th.  On 25 May 2009 the defendant replied:

Sorry to hear that you’re still unwell I hope that you feel better soon.  On your return to work we will sit down and discuss where we are up to.

  1. [141]
    In fact, Mr Gardem was not geographically in a position to attend work, as he was on the Sunshine Coast.
  1. [142]
    On 25 May 2009 Mr Gardem presented to his medical practitioner Dr Genn at Wurtulla on the Sunshine Coast in South East Queensland to obtain a worker’s compensation medical certificate.  He stated words to the effect that he perceived he had been wrongly persecuted in relation to the performance of his duties.[60]  In reliance upon the things told to him, Dr Genn expressed the written opinion that Mr Gardem suffered “generalised anxiety disorder”. I do not make a finding about the correctness of the medical opinion or whether Mr Gardem was too ill to work.
  1. [143]
    On 27 May 2009 Mr Gardem emailed to advise he was still unwell and would not attend the office during the remainder of the week.  The defendant replied thanking him for the advice and requesting that Mr Gardem forward a doctor’s certificate to cover the pay period. 
  1. [144]
    Mr Gardem did not discuss his departure from Georgetown with the defendant, who was unaware that he had left Georgetown until the defendant later received a doctor’s certificate from the Sunshine Coast.
  1. [145]
    On 1 June 2009 Mr Gardem emailed the defendant that he was attaching a Q Comp Workers Compensation Medical Certificate advising that the situation will be reviewed on 19 June 2009.  Mr Gardem asserted “given the matter relates directly to my employment I express the hope Council will pay me at the usual rate during the period of my incapacity.”  The defendant replied:[61]

We are sorry to hear that you are still unwell.

We would like to advise you that Council will pay you sick leave for seven (7) days that you were sick and two (2) days normal pay that you worked in this pay period ending the 31 May 2009. 

We have referred your claim to LGW who will investigate the validity of the claim.  Please contact Mr Doug Furness from LGW … to make arrangements for an interview …

  1. [146]
    On 14 July 2009 the defendant wrote to Mr Gardem by letter[62] setting out Mr Gardem’s then current leave entitlements and advising Mr Gardem of the options available to him should he wish to make use of those entitlements.  The defendant further advised:

If you do not elect to use your annual leave entitlements, you will continue to be on leave without pay.

  1. [147]
    On 19 August 2009[63] an approved leave without pay form for Mr Gardem was created and specified that his leave started on 31 May 2009. Mr Gardem was asked to complete certain leave applications, but declined.  He stated that he was advised not to complete these forms.  He went on to say that the forms dealt with annual leave and he did not wish to take that form of leave.[64]  However, the application forms were multi-purpose and accommodated all forms of leave.[65]In any event, Mr Gardem did not apply for leave without pay. He was absent and not applying for leave as requested.
  1. [148]
    A solicitor’s letter was eventually sent for Mr Gardem to MacDonnells Law. It is not in evidence. Its date is not in evidence. Part was read into the record.[66] It asserted that only Mr Gardem’s role had been made redundant and this redundancy accorded with the advice given by MacDonnells Law in their letter to the defendant on 24 June 2008. The passage read into the record was not consistent with Mr Gardem’s wish to return to employment.
  1. [149]
    After leaving Georgetown in May 2009, Mr Gardem returned to Georgetown for only one or two nights in September 2009, prior to 25 September 2009, to take his furniture from the house he had rented from Council. The defendant learned of it before writing a letter to Mr Gardem dated 25 September 2009.

Alleged reprisal 25 September 2009

  1. [150]
    The ASOC alleged a reprisal on 25 September 2009. That day the defendant caused the Council to terminate Mr Gardem’s employment by letter stating:

“I refer to: -

1.My letter to you of 13 May 2009[67] - which notified you of the redundancy of the Senior Administration Officer position and offered you the new position of Co-Ordinator External Consultancies Community Services;

2.Your failure to respond to that letter;

3.Your absence from work, without authorised leave, since 17 July 2009; and

4.Your abandonment of the tenancy of the Council owned dwelling (situated at House 4, High Street, Georgetown) at midnight on 24 September 2009.

Your actions identified in paragraphs 2 to 4 above have left me with no alternative other than to conclude that you have abandoned your employment with the Council.

  1. [151]
    The ASOC alleged that at the time of the termination letter of 25 September 2009 the defendant knew or ought to have known that Mr Gardem was then absent on sick leave and had not abandoned his employment[68] and the defendant’s conduct caused or was an attempt to cause detriment to Mr Gardem because the defendant had the belief that Mr Gardem had made PIDs.
  1. [152]
    I am not satisfied that:
  1. Mr Gardem was unable to attend his employment through illness; or
  1. The defendant knew or should have known it; or
  1. The defendant knew that Mr Gardem had not abandoned his employment;
  1. The defendant’s conduct in sending the termination letter was because he believed Mr Gardem had made PIDs.
  1. [153]
    Mr Gardem made lengthy submissions with a view to establishing that his dismissal was wrongful in the circumstances which existed on 25 September 2009. I do not need to decide whether the termination was wrongful in terms of a breach of contract of employment. The issue is whether the defendant’s conduct on 25 September 2009 was because Mr Gardem’s disclosures between June and October 2008 had included a PID or because the defendant believed that they had.
  1. [154]
    I am satisfied that the defendant’s termination of Mr Gardem’s employment was caused by the defendant’s belief that Mr Gardem’s absence and conduct on and from 13 May 2009 indicated that Mr Gardem had abandoned his employment. I am not satisfied that the defendant’s conduct in terminating Mr Gardem’s employment was because of PIDs. To be clear, even if the alleged disclosures in 2008 did, as a matter of law, contain PIDs, I am not satisfied that that fact or the defendant’s belief in that fact was the cause of the termination of Mr Gardem’s employment. The characterisation of the disclosures of 27 June 2008 as PIDs was not the feature of the disclosures that had concerned the defendant on 23 July 2008. By 25 September 2009 the disclosures were long in the past. Since August 2008 the defendant had become wary of being accused of reprisal. That wariness had motivated him to seek for Mr Gardem a position with satisfying duties in the proposed employment structure.

The tort of reprisal under WPA – principles relating to the issues in this proceeding

  1. [155]
    The ASOC alleged that the defendant caused or attempted to cause detriment to Mr Gardem[69] (but has not alleged that the defendant conspired to cause detriment). The ASOC also alleged that the defendant caused or attempted to cause detriment to Mr Gardem because of, and in the belief[70] that Mr Gardem had made PIDs (but did not allege that the reprisals were in the belief that Mr Gardem would make PIDs).
  1. [156]
    To establish that the defendant committed the tort of reprisal, Mr Gardem bears the onus of proof, on the balance of probabilities, that:
  1. Mr Gardem made a disclosure which is a PID; and
  1. The defendant caused or attempted to cause detriment to Mr Gardem; and
  1. The defendant did so because Mr Gardem made the disclosure established to be a PID; or
  1. The defendant did so in the belief that Mr Gardem made a PID.
  1. [157]
    The entitlement to damages, provided for in WPA s 43, is conditional upon more than the tort of reprisal. It is also conditional upon the suffering of a “detriment” as a result of the defendant’s reprisal. The ASOC alleges that “consequent upon the reprisals… the Plaintiff has suffered loss and damage”. It follows that the ASOC implies that the detriment suffered was the loss alleged in the ASOC.
  1. [158]
    The defendant submitted that detriment was an element of the tort.[71] While I reject that submission, it makes no practical difference in this proceeding. Proof of “detriment” is essential if Mr Gardem is to recover damages for the tort. Mr Gardem claims damages, not a declaration that a reprisal occurred.
  1. [159]
    To recover damages, Mr Gardem also bears the onus of proof, on the balance of probabilities, that:
  1. Mr Gardem suffered the loss and damage alleged in the ASOC;
  1. The defendant’s tort of reprisal, not just the defendant’s acts, caused the loss and damage alleged in the ASOC.
  1. [160]
    An “attempt” is undefined in WPA and in the Acts Interpretation Act. “Attempt” in the context of WPA bears its ordinary meaning. “Attempt” involves two elements. In the context of an attempt by the defendant to cause a detriment to Mr Gardem, Mr Gardem must prove on the balance of probabilities that the defendant:
  1. With the intention to cause detriment to Mr Gardem; and
  1. Did an act which is more than merely preparatory to causing the detriment.

Borrowing an analogy from criminal law, the purchase of a loaded weapon with the intention to cause injury would satisfy the test for the intention, but would not satisfy the test for an act which is more than merely preparatory.

  1. [161]
    Reference to WPA ss 41 (1) to (3) and 43 (1) shows that one may make a reprisal and thereby commit the tort of reprisal without the necessity for a “detriment”.
  1. [162]
    The list of matters included in the Schedule 6 Dictionary to WPA as things amounting to a “detriment” includes more than the things traditionally pleaded as heads of damage or particulars of loss in an action for damages in tort. An example is a “threat of detriment”. Thus, a “threat of detriment” was a “detriment” under WPA.
  1. [163]
    The ASOC does not expressly name any detriment or detriments allegedly suffered by Mr Gardem. But the ASOC impliedly excludes several of the detriments on the list in the Schedule 6 Dictionary to WPA by confining particulars of loss and damage to three items. They are:
  1. $300,000 “financial loss because of the termination of his employment as a Senior Administration Officer…being the anticipated amount the Plaintiff expected to earn in wages…for a further four years.
  1. $36,000 “loss of superannuation contributions…for a further four years.
  1. $50,000 damages for injury to reputation.
  1. [164]
    Mr Gardem bears the onus of proof of these three losses and that each was a result of the defendant’s tort of reprisal.
  1. [165]
    It is necessary to remain aware of the issues in the ASOC because Mr Gardem tended to range more widely in his evidence and submissions.
  1. [166]
    Mr Gardem submitted[72] that the defendant’s letter of 23 July 2008 “affected my health severely”. It is possible that the letter affected Mr Gardem’s health. Effects on a person’s health can be made an issue in a claim for damages for the tort of reprisal.  Each of “intimidation and harassment” or “personal injury” is included in the meaning of “detriment” in the Schedule 6 Dictionary of the WPA. The defendant’s letter of 23 July 2008 called on Mr Gardem to show cause and alerted Mr Gardem that one possible sanction was the termination of employment. I am satisfied that such a letter has the potential to intimidate and harass a recipient and to cause personal injury to a vulnerable recipient. But these possible consequences were not made issues in the proceeding. The ASOC defined the issues the defendant was to face. The ASOC did not allege that the defendant’s letter, or any other conduct by the defendant, caused “intimidation or harassment” or personal injury or affected Mr Gardem’s health. The topics were not explored in cross-examination of Mr Gardem or made the subject of expert evidence. I need not consider:
  1. Whether Mr Gardem suffered “intimidation or harassment”; or
  1. Whether Mr Gardem suffered personal injury; or
  1. If Mr Gardem did suffer “intimidation and harassment” whether that can be compensated with an award of damages in the absence of a physical or psychological injury.
  1. [167]
    The expression “in the belief that” appears in WPA s 41(1). It has been determined in respect of a statute with sufficiently similar wording that there must be a causal connection between the belief that a person made a disclosure and the causing (or attempting to cause) a detriment and that it is not sufficient for a plaintiff to prove that the defendant caused detriment to Mr Gardem while the defendant held the belief that Mr Gardem had made a PID.[73]  The Queensland Court of Appeal, when considering WPA s 41(1), observed that “the section seems to require that the offender’s actions be motivated by some state of knowledge or belief that the target person has acted in a certain way.”[74] It follows from WPA s 41(1) that even if Mr Gardem proves that after his making a PID the defendant caused a detriment to Mr Gardem, Mr Gardem might fail to prove the tort. Mr Gardem must also prove that the defendant:
  1. Was motivated by a belief that Mr Gardem made the PID; or
  1. Caused the detriment because Mr Gardem made the PID.
  1. [168]
    A PID need not be the sole cause of the taking of a reprisal. The WPA provided that it is sufficient if it is a substantial ground for the reprisal.[75]
  1. [169]
    If detriment suffered by a plaintiff was as a result of disclosures, Mr Gardem bears the onus of proof that he suffered that detriment as a result of a PID. The fact that one of a number of disclosures amounts to a PID does not result in the balance of the disclosures being a PID. Mr Gardem bears the onus of proof that any detriment the defendant caused to him was caused because Mr Gardem made[76] a PID and a PID will not necessarily be the whole of a document in which the disclosure appears. It was noted[77] by Crispin J in respect of the Public Interest Disclosure Act (ACT) (repealed):

There is nothing in s 3 of the Public Interest Disclosure Act to suggest that the concept of a public interest disclosure should be taken to extend to the whole of a document that happens to contain some such information. Nor is there any reason to suppose that the legislature intended to extend the protection provided by s 29 to unfounded, unreasonable or even scurrilous assertions about other people. It is incumbent upon a person seeking to recover damages under the section to establish an unlawful reprisal for the specific information that constitutes a public interest disclosure. 

  1. [170]
    A document might contain several disclosures, only one of which is a PID. If a person subsequently causes the discloser a detriment, the discloser must prove that the component of the document which was the PID was a substantial ground for the person’s causing the detriment to the discloser.
  1. [171]
    Information in a document or conversation may include some information which is a PID and some which is not. It will depend on whether the information is of the kind:
  1. Specified in sections 15 to 20 of WPA; or
  1. Not specified in those sections. 

Whether Mr Gardem’s letter dated 27 June 2008, was a “public interest disclosure” within the meaning of sections 15 to 19 of WPA

  1. [172]
    The defendant submitted that Mr Gardem’s letter of 27 June 2008 “is not a public interest disclosure as defined”. To assess the strength of that submission one needs to start by identifying and considering the definition of “public interest disclosure”. Neither the defendant nor Mr Gardem expressly identified what they submitted to be the relevant definitions.
  1. [173]
    The ASOC alleges that by the letter of 27 June 2008 Mr Gardem disclosed matters which included details of:
  1. Workplace bullying;
  1. Procurement aberrations;
  1. Staff dissatisfaction;
  1. Limited access to toilet facilities; and
  1. General workplace disharmony.
  1. [174]
    The ASOC collectively called those 5 matters “the complaint” and alleged that the complaint was a “public disclosure” (sic). The ASOC’s allegation suggests a misapprehension as to what amounts to a PID, for none of the five topics collectively called “the complaint” matches the meaning of PID in WPA, or PIDA.
  1. [175]
    WPA, by s 4(1) and the dictionary in Schedule 6 gives a definition for “public interest disclosure” as those words were used in WPA. The Dictionary at Schedule 6 of WPA provided:

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 the appropriate entity.

  1. [176]
    These reasons have set out[78] sections 15 to 20 of WPA.
  1. [177]
    Section 20 of WPA is materially different from its equivalent at section 12 (1) (d) of PIDA. PIDA makes a precondition for a PID that there is a disclosure of information about “the conduct of another person that could, if proved, be a reprisal.” When compared with s 20 of WPA one sees that WPA requires information about conduct that “is a reprisal”. The difference between a description of conduct that is a reprisal and conduct that could, if proved be a reprisal is significant. Under WPA Mr Gardem bears an onus of proof that the letter disclosed conduct by any person that was a reprisal against a PID. Mr Gardem has not satisfied me that there was a PID by him prior to the letter of 27 June 2008. It follows that any alleged “reprisal” prior to 27 June 2008 cannot be established to have been a reprisal for a PID.
  1. [178]
    To otherwise amount to a PID, the letter must have disclosed one or more of the matters described in sections 15 to 19 of WPA. Extracting relevant words from those 5 sections, the disclosure must have been of:
  1. official misconduct”, under WPA s 15; or
  1. maladministration that adversely affects anybody’s interests in a substantial and specific way”, under WPA s 16; or
  1. negligent or improper management directly or indirectly resulting, or likely to result, in a substantial waste of public funds;” under WPA s 17 (1); or
  1. a substantial and specific danger to public health or safety or to the environment”, under WPA s 18 (1); or
  1. a substantial and specific danger to the health or safety of a person with a disability”, under WPA s 19 (1) (a); or
  1. an offence against a provision mentioned in schedule 2, if the commission of the offence is or would be a substantial and specific danger to the environment”, under WPA s 19 (1) (b); or
  1. 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”, under WPA s 19 (1) (c).
  1. [179]
    That list requires reference to other parts of WPA and further statutes.
  1. [180]
    official misconduct” is defined in the dictionary in schedule 6 of WPA. It has the same meaning as in the Crime and Misconduct Act 2001. The Crime and Misconduct Act 2001 provided at material times in 2008 and 2009 at section 15 that “Official misconduct” is conduct that “could, if proved, be— (a) a criminal offence; or (b) a disciplinary breach providing reasonable grounds for terminating the person’s services, if the person is or were the holder of an appointment.” That definition in the Crime and Misconduct Act 2001 was amended subsequently, by a substituting “would” for “could”.
  1. [181]
    maladministration” in WPA s 16 is defined in the dictionary in schedule 6 of WPA and requires particular types of administrative action.
  1. [182]
    Section 19 refers to Schedule 2 of WPA which lists 14 Queensland Statutes and various sections in those statutes generally concerned with conduct adversely affecting the environment or Aboriginal or Torres Strait Islander cultural heritage.
  1. [183]
    Neither the ASOC nor Mr Gardem’s submissions expressly introduced the issue of a danger to a person with the serious condition of a “disability” as that word is defined in the Disability Services Act 2006 at s 11. The ASOC’s reference to s 12 (1) of PIDA impliedly introduces the issue.  The equivalent issue is at WPA s 19 (1) (a). Mr Gardem has the onus of proof that the letter disclosed a substantial and specific danger to the health or safety of a person with a “disability” within the meaning of that word in WPA. No person with a relevant “disability” was expressly or impliedly alleged to be endangered. A worker is not a person with a relevant “disability”. Nor did the letter disclose a substantial and specific danger to the health or safety of any person. For reasons below, I am not satisfied that working in a remote area without a toilet created a substantial and specific danger to the health or safety of a person. On both bases, Mr Gardem fails to satisfy his onus that the letter disclosed a “public interest disclosure” within the meaning of WPA s 19 (1) (a).
  1. [184]
    Neither the ASOC nor Mr Gardem’s submissions expressly introduced the issue of an offence against one of the environmental statutes named in schedule 2 to WPA or against Aboriginal or Torres Strait Islander cultural heritage or the contravention of a condition imposed under a provision in any of the 14 statutes in schedule 2 of WPA. But the ASOC does impliedly introduce the issue at par 5 by referring to PIDA at subsection 12 (1) (b) and (c). The equivalents in WPA are at subsections 19 (1) (b) and (c). Mr Gardem has not satisfied me that the letter disclosed an offence against or the contravention of a condition imposed under a provision in any of the 14 statutes in schedule 2 to WPA.
  1. [185]
    I now consider the parties’ submissions on the topic of whether the letter contained a PID of information about conduct or danger described in WPA sections 15, 16, 17 or 18.

The defendant’s submission about the letter of 27 June 2008

  1. [186]
    The defendant’s submission about the letter of 27 June 2008, omitting some irrelevant passages, and shading what appears to be the essential component, is:

25.This letter is not a as defined…  It is a complaint to the minister’s office about the minister’s tardiness in dealing with some earlier complaint by Mr Gardem, which is not pleaded and not in evidence…

...

27.Thus:

(a)there is no allegation of official misconduct or corrupt conduct by any person;

(b)there are enigmatic and unexplained references to ‘those issues’ and a ‘local rule’ which have no meaning in the context of this letter;

(c)there is no identification of a particular maladministration;[79]

(d)there is no identification in item (i) of the letter of a person whose interests are affected in a substantial and specific way.  There is merely a generalised reference to ‘many of our workmen’.  There is no identification of a particular workman or of particular workmen nor of where they were working;

(e)there is no allegation in the letter of a ‘substantial and specific danger to public health or safety’ (nor did Mr Gardem call any expert evidence to that effect) and

(f)the  ‘information’ does not otherwise show conduct within the public interest disclosure provisions of the statutes.

28.In the item numbered (ii) of the letter:

(a)It is said that ‘workplace bullying is a weekly event’.  The only person who is alleged to have engaged in bullying seems to be the Mayor and, even then, the complaint is put no higher than that he ‘may well be properly described as a workplace bully’.  Taken alone, without further information, that is a meaningless statement;

(b)as to who it is alleged was bullied, there is no specific information disclosed in the letter.  There is merely reference to an ‘honest, pleasant and efficient senior aged working lady’ who is said to have resigned rather than ‘continue to carry an unnatural burden of stress’ and a reference to ‘other staff with elevated stress levels’.[80]

29.In any event, it is not apparent that bullying would fit any of the criteria in s.16(b) of the WPA ...  It is notorious that bullying and other interpersonal failures occur in workplaces.  To make an unvarnished statement to that effect is not to allege a maladministration.

30.Item (iii) in the letter alleges, in the most general way, that ‘procurement aberrations’ occur.  It cannot be said that this is a disclosure of ‘conduct’ which could fit any of the s.16(b) WPA or s.13(1) PIDA criteria.

31.Item (iv) of the letter does not appear to disclose anything.

32.Not only does this letter seem to be dependent upon an earlier letter for its proper interpretation, it also purports to be a response to yet another letter.  It is submitted that the Court ought not conclude that this one element of a three document exchange can be taken alone, without its context and accorded the requisite statutory characterisation as a public interest disclosure.”

  1. [187]
    The defendant’s submission above refers expressly to WPA at sections 15 and 16 and by using words found in WPA at section 18[81] the submission impliedly refers to section 18. Each of those sections specifies a topic which falls within the definition of PID. The defendant made no express reference to WPA s 17 in his submission.

Mr Gardem’s submissions on whether his letter of 27 June 2008 was a “public interest disclosure”

  1. [188]
    Mr Gardem submitted[82] that the letter of 27 June 2008 should be read with the prior letter Mr Gardem wrote to the Minister for Local Government Sport and Recreation to determine whether the combined documents are a PID
  1. [189]
    That argument cannot be raised because the ASOC defined the PID as the complaint made by the letter dated 27 June 2008.[83] Further to that, the contents of the prior letter are not in evidence.
  1. [190]
    Mr Gardem submitted that PIDA s 13 applies and means that Mr Gardem needed only to be a “provider of honestly held information on reasonable grounds” which tends to identify the “conduct or danger”. To introduce the issue in WPA s 14 (2), Mr Gardem should have pleaded that he honestly believed on reasonable grounds that he had information that tended to show the conduct or danger specified in section 15 or 16 or 17 or 18 or 19 or 20. The ASOC was required to specifically allege Mr Gardem’s motive, intention or other condition of mind, including knowledge.[84] Mr Gardem’s honest belief was not made an issue by the ASOC or the defence. It is not an issue. The ASOC complied with the rules to allege the defendant’s belief. It should have done the same if it was intended to make Mr Gardem’s belief a material fact.
  1. [191]
    PIDA subsection 13 (3) is the subsection to which Mr Gardem probably intended to refer. It does not apply. It has a near equivalent in WPA s 14 (2). WPA s 14 (2) concerns a different issue from the one identified by the defendant’s submission. The defendant’s argument is essentially that it is only if Mr Gardem disclosed the information specified in ss 15 to 20 of WPA that he would be afforded the privilege of an action for damages for a reprisal for the disclosure. The defendant’s argument calls for an examination of the information specified in the letter to determine whether it is information specified in ss 15 to 20 of WPA. The defendant’s argument does not require an examination of Mr Gardem’s belief or the reasonableness of the grounds for it.
  1. [192]
    Proof of Mr Gardem’s honest belief and the reasonableness of the grounds for it is arguably relevant to WPA subsections 15 (a), 16 (a), 17 (a), 18 (1) and 19 (1). Mr Gardem must prove that the information in the letter is information specified in any of WPA subsections 15 (b), 16 (b), 17 (b), 18(1) or 19(1) (a), (b) or (c). I reject Mr Gardem’s submission.
  1. [193]
    Mr Gardem may still prove the first contested element of his cause of action without proof of his honesty or reasonable grounds for believing what his letter of 23 June 2008 disclosed. Mr Gardem needs only to prove that his disclosure was of information specified in WPA subsections 15 (b), 16 (b), 17 (b), 18(1) or 19(1) (a), (b) or (c).
  1. [194]
    Mr Gardem submitted that it is not necessary to identify a person whose conduct is alleged to be wrong or corrupt. Mr Gardem’s submission may be correct but it misses the point of the defendant’s argument that the letter did not raise the topic of “official misconduct or corrupt conduct”. The topic of “official misconduct” appears in s 15(b) of WPA. It is defined in the dictionary in schedule 6 of WPA. One must consider the Crime and Misconduct Act 2001 which provided at section 15 that “Official misconduct” is conduct that could, if proved, be— (a) a criminal offence; or (b) a disciplinary breach providing reasonable grounds for terminating the person’s services, if the person is or were the holder of an appointment.” I am not satisfied that the letter raised the topic of official misconduct as defined. The details of the misconduct identified in Mr Gardem’s letter, such as “bullying” and “procurement aberrations” were not described in a way which effectively alleged a criminal offence or a breach of discipline providing reasonable grounds for termination. I accept the defendant’s submission that the letter did not raise “official misconduct”.
  1. [195]
    Mr Gardem submitted that as for the defendant’s submission 27(c)[85] the letter has sufficient detail of wrongdoing.
  1. [196]
    The point of the defendant’s argument is that the letter’s description of wrongdoing is not so detailed as to allow for the conclusion that the wrongdoing described is “maladministration” as that word is used in s 16 of WPA. “Maladministration” in section 16 of WPA is defined in the Schedule 6 Dictionary in WPA to be “administrative action that is unlawful, arbitrary, unjust, oppressive, improperly discriminatory or taken for an improper purpose”. Because the adjective “oppressive” is overused, there is a risk that one might wrongly regard any unfairness, hardship or discourtesy as “oppressive”. The Concise Oxford Dictionary gives to the adjective the meanings “oppressing; tyrannical; difficult to endure…”. I am not satisfied that the letter described “oppressive” administrative action. But if “maladministration”, whether by “oppressive” administrative action or by some other means was described in the letter, that is not sufficient to amount to the topic in section 16(b). The topic in s 16(b) is “maladministration that adversely affects anybody’s interests in a substantial and specific way”. There was no substantial effect described in the letter in respect of any person or the Council. If the bullying described was by someone other than the Mayor, I am not satisfied that the letter disclosed that it was administrative action. If the letter was intended to convey that the Mayor had bullied an employee, it failed. I accept the defendant’s submission to the effect that the letter does not give sufficient detail to disclose the topic in WPA s 16(b).
  1. [197]
    Mr Gardem submitted in response to the defendant’s submission at par 27(d), that it is not necessary that the workers affected by lack of toilets be named. It is enough to disclose that workers had no toilets.
  1. [198]
    Mr Gardem’s submission misses the point of the defendant’s argument. The point of the argument was not simply that the workers were unidentified. The point was that there was no identification of a person whose interests were affected in a substantial and specific way.  The only reason to identify a particular person would be to more easily demonstrate by the disclosure that there was a substantial and specific way in which the person’s interests were affected. At its highest, the letter arguably discloses maladministration which adversely affects workers’ interests in a specific way by implying that workers were obliged to endure inconvenience; at worst being obliged to evacuate their bowels without the convenience of sitting on a toilet pedestal within a portable cubicle. The letter creates reasonable inferences. Those inference include that any worker wanting to evacuate the worker’s bowels may have suffered the inconvenience of having to drive to a toilet off site, or to use a latrine, or to squat and bury. I am not persuaded that the disclosure was of an adverse effect on a worker in a substantial and specific way.
  1. [199]
    Mr Gardem submitted in response to the defendant’s submission 27(e), that it is so obvious as to require no expert evidence that the failure to supply toilets to workman for nine days represents “a substantial and specific danger to public health or safety.”
  1. [200]
    I reject the submission that the absence of a toilet on a work site constitutes “a substantial and specific danger to public health or safety”. I am satisfied lack of a toilet meant that if a worker did not travel off site to find a toilet then a worker’s faecal matter needed to be disposed of in a sanitary way. The letter did not allege that this did not occur. The letter did not suggest that members of the public were exposed to any specific danger. Mr Gardem’s submission[86]changed from the letter’s disclosure of the absence of a toilet to a concern for workers who might not wash their hands. The letter did not purport to inform the reader that human waste was left undisposed of or that conditions were such that workers were unable to sanitise themselves if they evacuated their bowels.  Mr Gardem further submitted that the letter was effectively informing that through maladministration leading to the failure of an opportunity to use a portable toilet the workers’ lives were put at risk as were the lives of those who passed by the work site.[87] I reject the submission that the letter impliedly disclosed that conduct or that danger to life.
  1. [201]
    Mr Gardem submitted in response to the defendant’s submission 28(a)[88] that the information in the letter is sufficient and that the disclosure can be general without showing all the elements of a criminal offence or proving them beyond reasonable doubt. Mr Gardem cited as authority Jones v University of Canberra [2016] ACTSC 78 at [92] per Refshauge ACJ.[89] 
  1. [202]
    Refshuage ACJ was there considering the Public Interest Disclosure Act 1994 (ACT) at s 8 which defined “disclosable conduct” to include conduct which “could constitute…a criminal offence; or…give reasonable grounds for disciplinary action”. It has since been repealed. WPA s 15 does incorporate a similar provision by its use of the expanded definition of “official misconduct” which incorporates its meaning from the Crime and Misconduct Act 2001 s 15: “conduct that could, if proved, be— (a) a criminal offence; or (b) a disciplinary breach providing reasonable grounds for terminating the person’s services, if the person is or were the holder of an appointment”. I do not interpret that to mean conduct described in a disclosure, that could be seen to allege a criminal offence only if more information was disclosed. For example, a disclosure that A bullied B does not disclose sufficient detail of A’s conduct to conclude that it could, if proved, be a criminal offence. Contrast an allegation that A struck B. That could, if proved, be a criminal offence. It might not be a criminal offence if B consented or if A had a defence or if A was authorised, justified or excused by law. The use of the word “could” in the expanded definition of “official misconduct” is not a legislative invitation to consider more facts than are disclosed before concluding whether the disclosure was of conduct or a danger described in WPA ss 15 to 19.
  1. [203]
    Because the letter does not indicate that anything was criminal, I speculate that Mr Gardem’s case is that the alleged bullying is a topic contained in s 16 WPA, namely “maladministration that adversely effects anybody’s interests in a substantial and specific way” or possibly a topic under section 15 such as “official misconduct” being either a criminal offence or “a disciplinary breach providing reasonable grounds for terminating the person’s services, if the person is or were the holder of an appointment”. I regard the unspecified allegations against unspecified bullies who were reported to the Mayor and the unspecified allegation against the Mayor as being too general to be an allegation about “conduct that could, if proved, be— (a) a criminal offence; or (b) a disciplinary breach providing reasonable grounds for terminating the person’s services, if the person is or were the holder of an appointment”. That is, they are too general to identify that they disclose “official misconduct” within the special meaning of that term. If the disclosure was intended to convey that there had been maladministration within the special meaning of that term it failed to convey that the maladministration adversely affected anybody’s interests in a substantial and specific way. I am not satisfied that the disclosure about the bullying which was reported to the Mayor was a PID. I am not satisfied that the disclosure that “the Mayor may well be properly described as a work-place bully himself” was a PID of the Mayor’s “official misconduct” or “maladministration that affects anybody’s interests in a substantial and specific way”. The bullying disclosures, if proved in a criminal proceeding, would not be sufficient to create a case to answer for any criminal offence. The same can be said for “procurement aberrations”.
  1. [204]
    Mr Gardem submitted in response to the defendant’s submission at paragraph 30, (that a disclosure of procurement aberrations cannot be said to be a disclosure of conduct in WPA s 16(b), namely, “maladministration that adversely affects anybody’s interests in a substantial and specific way”), that unlawful purchases valued at thousands of dollars weekly have to be illegal. That submission by Mr Gardem seems to be related more to WPA s 15.
  1. [205]
    Mr Gardem’s submission overstates what was disclosed and misses the defendant’s point. It overstates what was disclosed because the letter did not expressly or by necessary implication allege that the procurement aberrations were illegal. The point of the defendant’s argument is that the disclosure that there were “procurement aberrations” had insufficient detail to indicate that aberrations were “maladministration that adversely affects anybody’s interests in a substantial and specific way” or involved “official misconduct”. The disclosure was that “Procurement aberrations valued at many thousands of dollars occur weekly”. It was not a disclosure that the aberrations cost the Council many thousands of dollars weekly. This distinction is not academic.
  1. [206]
    It is the content of the letter which is relevant. But I stray into evidence of facts outside the letter to emphasise what the letter did not allege. I refer to the reasons above about the memo Mr Gardem sent to the defendant on 12 June 2008. The memo implied that there are numerous species of procurement aberrations. The particular species of procurement aberration which Mr Gardem described in his memo of 12 June 2008 may have involved no criminal conduct and no financial loss to Council. Mr Gardem led no evidence to the effect that procurement aberrations caused financial loss on any occasion before 27 June 2008 or in any period afterwards.
  1. [207]
    I am not satisfied that the letter disclosed “maladministration that affected the Council’s financial interests in a substantial and specific way” or that it disclosed “official misconduct”.
  1. [208]
    The defendant failed in its submissions at paragraph 30 to address the possibility that “procurement aberrations” might be a disclosure under s 17(b) of WPA of conduct of a public officer which was “negligent or improper management directly or indirectly resulting, or likely to result, in a substantial waste of funds”. Neither party addressed this relevant section. The letter did not expressly or by necessary implication allege conduct of a public officer which was “negligent or improper management”. If it did, that would have been insufficient. The letter did not allege that the conduct was also “directly or indirectly resulting, or likely to result, in a substantial waste of funds”. Mr Gardem led no evidence to the effect that the procurement aberrations were likely to result in a waste or a substantial waste of any public funds. Mr Gardem’s submission that the conduct was “unlawful” and “illegal” was not expressly or impliedly alleged in the letter. I am not satisfied that the disclosure was of conduct described in ss 15(b) or 17(b) of WPA.
  1. [209]
    Mr Gardem has failed to establish that any of the disclosures contained within his letter of 27 June 2008 was a PID within the meaning of those words in WPA. It may be that at the time when Mr Gardem wrote the letter, he was aware of conduct which, if disclosed in the letter, would have amounted to a PID. If he was aware of such conduct, he did not give sufficient detail of the conduct in the letter. The letter failed to include any PID among its complaints. It was not a PID.

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

  1. [210]
    There are two legal bases for considering whether the defendant made a reprisal. Under WPA s 41(1) the obligation upon the defendant to refrain from acts of reprisal against the plaintiff could arise on two bases. In essence the obligation upon the defendant not to make a reprisal would have arisen only if acts were done:
  1. Because Mr Gardem made a PID; or
  1. In the belief that Mr Gardem had made a PID.
  1. [211]
    As I have found that Mr Gardem’s letter of 27 June 2008 was not a PID, no act by the defendant, as a result of that letter, could satisfy the first condition. Only if the defendant had believed on 23 July 2008 that Mr Gardem’s letter of 27 June 2008 had been a PID, could the defendant’s conduct on 23 July 2008 possibly be a reprisal for that letter of 27 June 2008.
  1. [212]
    The ASOC was required to specifically allege the defendant’s motive, intention or other condition of mind, including knowledge.[90] If the defendant’s belief on 27 June 2008 had been an issue, the ASOC should have pleaded at least the defendant’s belief at that date that a PID had been made. The ASOC did not.
  1. [213]
    In his submissions, Mr Gardem wrote that:

“one material reason why the defendant wrote Exhibit 6, (the defendant’s letter of 23 July 2008) was because and in the belief that I made a public interest disclosure to the delegate of the Minister.”

  1. [214]
    The ASOC did plead the defendant’s belief on other occasions. The ASOC by par 8A(a) alleged that in preparing the draft second phase letter, the defendant intended to cause harm to Mr Gardem “because of, and in the defendant’s belief, it was (Mr Gardem) who made the public information disclosure to the Minister”. That was an allegation of belief in the identity of the letter writer. It was not an allegation of belief that the letter was a public information disclosure. The ASOC by par 16A alleged, in effect, that the defendant on about 25 September 2009 believed that Mr Gardem had made PIDs at unspecified dates. The ASOC at par 17, alleged, in effect, that the defendant’s causing or attempting to cause detriment to Mr Gardem between August 2008 and May 2009, did so either because or because of a belief that the plaintiff had made PIDs. Pars 16A and 17 raised the issue in respect of later alleged PIDs fairly and in accordance with the rules about proper pleading. It confirms my view that the ASOC did not put in issue, the defendant’s belief on 23 July 2008.
  1. [215]
    It follows that Mr Gardem’s case that the defendant’s letter of 23 July 2008 and the draft second phase letter does not raise an allegation that they were done in the belief that Mr Gardem’s letter of 27 June 2008 was a PID. The defendant is not in jeopardy of a finding that his letter of 23 July 2008 or his second phase draft letter were reprisals.
  1. [216]
    It was not put to the defendant that his letter of 23 July 2008 was written in the belief that Mr Gardem’s letter of 27 June was a PID. I am not satisfied that it was written in the belief that Mr Gardem’s letter of 27 June was a PID.
  1. [217]
    The defendant’s stated purpose for his “show cause” letter of 23 July 2008 was not that Mr Gardem made any disclosure, but that he failed to follow “proper protocol” in reporting his concerns. His primary concern expressed in the letter was the failure to raise matters with the requisite Council authorities. A code of conduct dictated protocol.[91]  Clause 8 required Council staff who knew or had good reasons to suspect corrupt, criminal or unethical conduct to report it immediately to the Chief Executive Officer.  Other influences seem to have been the insults to the Mayor and Premier Bligh. I am satisfied that these are ample bases for the show cause letter. I am not satisfied that the show cause letter was because the disclosures included PIDs.

Whether an unserved draft letter of termination of employment was a reprisal or a reprisal by attempt to cause detriment?

  1. [218]
    One may make a “reprisal” by an attempt to cause detriment to a person because the person has made a PID.[92] The sixth issue is whether the defendant made a reprisal by such an attempt to cause detriment, by giving Mr Gardem the show-cause letter (calling upon Mr Gardem to show that he had not breached his employment obligations and to show why he should not be penalised for breach)[93] or by the combination of sending that letter and drafting (though not sending) a letter of termination of Mr Gardem’s employment.[94]
  1. [219]
    I am satisfied that if Mr Gardem’s letter of 27 June had contained PIDs, the show cause letter of 23 July would have been a reprisal but that no loss claimed would have been caused by that reprisal.
  1. [220]
    The ASOC alleged that in preparing the draft termination letter, the defendant “demonstrated he intended to cause harm to the plaintiff because of, and in the Defendant’s belief, it was the Plaintiff who made the public information disclosure to the Minister.” Significantly, the ASOC did not allege that on 23 July 2008 the defendant believed that Mr Gardem had made a PID, by the letter of 27 June 2008 or by any of the earlier alleged PIDs. The earliest of the alleged reprisals which were also alleged to have been made “in the belief” that Mr Gardem had made PIDs were reprisals in and from August 2008.[95]
  1. [221]
    As Mr Gardem’s letter of 27 June 2008 was not a PID, no act done by the defendant because of that letter could be an act done because of a PID.
  1. [222]
    If the ASOC had alleged that the defendant believed on 23 July 2008 when he “prepared” the draft termination letter that Mr Gardem’s letter of 27 June 2008 had been a PID, it would have created an issue as to whether the defendant’s preparation of a draft letter was a reprisal. But the ASOC did not allege it. I need not consider whether the draft letter was a reprisal.
  1. [223]
    On the hypothesis that I am in error:
  1. The preparation of the draft was not an attempt, but merely an act preparatory to an attempt to cause detriment; and
  1. I am not satisfied that the preparation of the draft caused the termination of Mr Gardem’s employment 11 months later or any financial detriment alleged.
  1. [224]
    In summary, on this topic I have found:
  1. Mr Gardem’s letter of 27 June did not contain a PID;
  1. The ASOC did not allege that the defendant believed that the letter of 27 June contained a PID;
  1. In those two circumstances, any attempt by the defendant to cause detriment to Mr Gardem because of the letter of 27 June, could not be a reprisal;
  1. If an attempt by the defendant to cause detriment to Mr Gardem in those circumstances could be a reprisal, the preparation of the draft was not an attempt but was an act preparatory to an attempt; and
  1. In any event, the defendant’s conduct in preparing the draft letter caused Mr Gardem no loss.

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.

  1. [225]
    I refer to the disclosures in 2008 by memo of 6 June,[96] memo[97] of 12 June, email[98] of 10 July and memo[99] of 25 October.
  1. [226]
    Mr Gardem submitted about the disclosure in his memo of 6 June 2008:
  1. …The only lawful purchases by a Council in Queensland are those which comply with the purchasing policy in every respect.
  1. [227]
    The defendant submitted:
  1. This document … does nothing more than advise Mr Edmistone that “some practices are seriously different in form and intent to the specifications in policy 25” and that these issues had been raised “many times” before Mr Edmistone came to the Council.
  1. A memo dated 22 May 2008 addressed to Mr Edmistone’s predecessor was attached to exhibit 1.  It records Mr Gardem’s apparent awakening to a new understanding of policy 25 and his formation of a view that there are administrative practices which are non-compliant with policy 25, relating particularly to the provision of sufficient support information for the authorisation of supplier payments.  The memorandum suggests some steps which may be taken.
  1. Mr Gardem explained in his own evidence that this related to the same issues as exhibit 1 and went on to say Mainly they are me advising the chief executive officer of the correct way to purchase in case he did not know about that.   It cannot be a public interest disclosure.
  1. [228]
    The pair of documents formed by the memo of 6 June 2008 and its attachment dated 22 May 2008 did not expressly or impliedly assert that there had been in the past criminal conduct or conduct to warrant disciplinary proceedings or that there would be such conduct. The pair does not identify which persons have historically been at fault, whether it is those persons who contracted on Council’s behalf, or those who were informed afterwards that a practice was wrong or those who authorised payment. The fact that the covering memo of 6 June did not suggest that anything untoward had occurred since 22 May is relevant to the interpretation of the pair of documents. The pair of documents suggests that suppliers who will suffer a delay in payment until the prerequisites for payment found in Policy 25 are complied with.
  1. [229]
    I am not satisfied that the memo and its attachment information disclosed any of the matters specified in WPA subsections 15 (b), 16 (b), 17 (b), 18(1) or 19(1) (a), (b) or (c).
  1. [230]
    At 39 Mr Ashton again discusses the need of the discloser to advancespecific, detailed information in a disclosure if it is to become a PID. I submitthe rule is the information disclosed only needs to be information that ishonestly believed on reasonable grounds which tends to show the conduct or danger concerned for it to be a PID.:
  1. Mr Gardem explained in his own evidence that this related to the same issues as exhibit 1 and went on to say Mainly they are me advising the chief executive officer of the correct way to purchase in case he did not know about that.   It cannot be a public interest disclosure.
  1. [231]
    I reject Mr Gardem’s submission. For reasons explained above, Mr Gardem’s honesty and reasonable grounds for his belief are not in issue. Mr Gardem must prove that the email itself discloses the conduct or danger specified in WPA subsections 15 (b), 16 (b), 17 (b), 18(1) or 19(1) (a), (b) or (c).
  1. [232]
    The defendant submitted:
  1. This memorandum describes itself as “a follow-up message”.  Mr Gardem referred to it in his evidence in chief as a “follow up”.[100]  At one point in cross-examination, though, he appeared to suggest that it was a disclosure of “a particular rort”.[101]  It does not bear that character at all.  It gives an example of the alleged problem of insufficient supporting documentation for acquisition sign-offs.
  1. Mr Gardem hazards a guess as to this example that there was no written specification nor three written quotations.  He says that he would “like to be proved wrong in that respect”.  How is this an allegation of conduct which, if proved, would be “official misconduct” within s.15 WPA or “corrupt conduct” within s.13 PIDA?  To use Mr Gardem’s own word (which he expressly pleads in relation to this memorandum), it is an example of an “aberration” which may evidence a non-compliance with an administrative policy.  Proving it would not be proving anything which could be official misconduct or corrupt conduct.  And, importantly, Mr Gardem’s “guess” and his preference to be “proved wrong” are not a public interest disclosure.
  1. The evidence shows that Mr Edmistone received and read Mr Gardem’s memoranda, met with him; expressed agreement in principle; asked him to develop the proposal further; and took it to the very next Council meeting for action.[102]
  1. [233]
    The email is too general to disclose official misconduct. Any possible “maladministration” is not alleged to be such as to have adversely affected anybody’s interests in a substantial and specific way. Any possible “improper management” is not alleged to have resulted in a substantial waste of public funds. I am not satisfied that the email is or includes a PID.
  1. [234]
    The ASOC alleged[103] a PID on 10 July 2008 which included a representation that there was a purchase of caravans when the “purchasing process was contrary to law”. It concerns the email[104] of 10 July 2008.
  1. [235]
    The email does not allege that the “purchasing process was contrary to law”. The email implies that the “purchase” as opposed to the “purchasing process” was “not compliant” with “policy or law” without specifying whether it was noncompliant with one or the other or both. A reader in the defendant’s position would resolve that email’s ambiguity in the knowledge that Mr Gardem was the author of the email, the person who signed the documents for the purchase, was a person who would generally refuse authorisation until proper processes had been followed and that the email did not suggest that Mr Gardem signed under pressure. I am not satisfied that the email alleged:
  1. A purchasing process which was contrary to law, as is the pleaded case; or
  1. That the purchase was unlawful, though that finding is strictly unnecessary as the allegation was not pleaded.  
  1. [236]
    The email does not disclose and there was no evidence of who “requested” Mr Gardem to sign the documents for the purchase of the caravans, whether it was the vendor, a Council employee or anyone else.
  1. [237]
    Mr Gardem submitted[105] that his email disclosed “unlawful purchasing … a form of maladministration”, an element of official misconduct and tends to show corrupt conduct.
  1. [238]
    If it shows maladministration, it failed to allege the necessary further element that the conduct adversely affected anybody’s interests in a substantial and specific way. It is not enough to allege an element of official misconduct. It does not allege corrupt conduct.
  1. [239]
    I am not satisfied that the email of 10 July 2008 is or includes a PID.
  1. [240]
    The memo of 25 October 2008[106] where it deals with conduct, seems primarily concerned with allegations about the conduct of Ms de Graff or her husband. Mr Gardem’s submissions[107] are concerned again with the non-issue of Mr Gardem’s belief and his grounds for that belief. He added submissions about the potentially devastating consequences which bullying may have. The defendant’s attack is on the basis that the document alleges that the former CEO “may not have” complied with Building Regulations, that expressions of suspicion are not PIDs and the other disclosed conduct does not fall within ss 15-18 of WPA.
  1. [241]
    As for conduct related to compliance with Building Regulations the memo is too general to disclose official misconduct. Any possible “maladministration” is not alleged to be such as to have adversely affected anybody’s interests in a substantial and specific way. Any possible “improper management” is not alleged to have resulted in a substantial waste of public funds. Even if the bullying can be squeezed into the heading of maladministration, it was not alleged that it affected anybody’s interests in a substantial and specific way.
  1. [242]
    I am not satisfied that the memo of 25 October 2008 is or includes a PID.

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

  1. [243]
    There are latent factual issues as to whether the defendant:
  1. Believed at material times from and after August 2008 whether these four disclosures or any of them were PIDs; and
  1. Made a reprisal because of or in the belief that this disclosure was a PID.
  1. [244]
    Mr Gardem did not submit that the defendant believed that any of the four disclosures was a PID. The defendant may have come to wrongly believe that Mr Gardem’s letter of 27 June was a PID, particularly as he received assertions from Mr Gardem’s union that it was and that the holding of a show cause hearing would be a reprisal. That letter is not one of the four documents under consideration. The defendant received no assertions that the other four alleged documents are PIDs. I am not satisfied that the defendant believed that any of the four relevant documents contained a PID.
  1. [245]
    Mr Gardem did not submit that any reprisal was because the defendant believed any of those four documents contained a PID.
  1. [246]
    I am not satisfied that any reduction in the workload of Mr Gardem was because of a PID or the defendant’s belief that there had been one.

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 SMOand thereby caused or contributed to the redundancy of the position of SMO.

  1. [247]
    The ASOC alleges that between August 2008 and May 2009, the defendant caused:
  1. Mr Gardem’s work to be reduced;[108]
  1. Council to engage external contractors to do work that would ordinarily be done by Mr Gardem;[109]
  1. the position of SMO[110]to be undermined; and
  1. By those three actions caused or contributed to the redundancy of the position of SMO.[111]
  1. [248]
    This is made difficult for Mr Gardem to establish because his job of SAO had no job description. Mr Gardem sought to give evidence of the diminution in work assigned to him over time. But Mr Gardem generally omitted to relate his before and after workloads to particular dates. He filled the temporary role of Acting Director of Corporate Services from November 2007 until April 2008. The duties in that period  are an inappropriate basis for comparison with Mr Gardem’s workload from August 2008. Mr Gardem was on leave for the whole of December 2008 and January 2009, and for 26 of the 40 working days in February and March 2009.  He did not return to work after 13 May 2009.
  1. [249]
    Examples of work said to have reduced but without any dates are: Auditing and acquitting grants, making grant applications, managing the grant of the expenditure for the Children’s hostel, assisting the accountant in technical aspects of her work, the set up an insurance register which progressed to negotiations with insurers about policy renewals and claims, calculating wage increases when scheduled and after reviews, supervising Ms Alexander in a study course ‘LGA50164’, Diploma of Local Government Administration (Financial Management) and providing advice on accounting. Absent dates, it is not possible to relate these allegations to particular PIDs. That makes it difficult to assess whether any reduction in workload was because of any particular PID.
  1. [250]
    Mr Gardem gave evidence in relation to his allegedly diminishing role as a Council representative to the “various communities”. He mentioned four: Georgetown, Einasleigh, Forsayth and Mount Surprise. Mr Gardem asserted that after “making disclosures, my duty as the community representative just disappeared. I was no longer asked to go to the communities and meet with them.” Evidence shows that Mr Gardem attended a Forsayth Community Meeting on 10 March 2009. I am not satisfied that the defendant caused Mr Gardem’s work as Council representative to the “various communities” to diminish. It is not suggested that any person took Mr Gardem’s place.
  1. [251]
    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.
  1. [252]
    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.
  1. [253]
    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.
  1. [254]
    Mr Gardem conceded that he was still assisting Ms Alexander until he went on leave.
  1. [255]
    I am not satisfied that Council engaged external contractors to perform work Mr Gardem had routinely performed.
  1. [256]
    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:
  1. The defendant wanted Mr Gardem to be offered a job with Council after the restructure;
  1. The defendant wanted Mr Gardem to be offered nothing less than the position of an AO level 4;
  1. 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;
  1. 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.

  1. [257]
    That requires consideration of whether:
  1. Mr Gardem had made PIDs; or
  1. The defendant believed that Mr Gardem had made PIDs; and
  1. The defendant terminated Mr Gardem’s employment because of either of those things.
  1. [258]
    I made the relevant findings when considering the facts for 25 September 2009 and two paragraphs above.

Quantum of loss

  1. [259]
    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

  1. [260]
    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.
  1. [261]
    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.

Footnotes

[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.

[2]T18.8.16 pg 61 ln 15 and pg 62 ln 14.

[3]Paras 1-10

[4]Defendant’s closing submissions par 12.

[5]Defendant’s closing submissions par 13.

[6]ASOC pars 3 and 10A.

[7]By ASOC pars 11 to 16.

[8]By ASOC par 18.

[9]AIA s 2.

[10]AIA s 4.

[11]ASOC par19.

[12]Examples are at ASOC pars 4, 5 and 6.

[13]Examples are at ASOC pars 8Aa, 9, 10A and 10B.

[14]UCPR r150 (1) (k).

[15]ASOC par 10A (d), (e), (g) and (h).

[16]Exhibit 90 p310.

[17]T1-15

[18]Exhibit 90 p310.

[19]Exhibit 78.

[20]Exhibit 85, p 14.

[21]Exhibit 78

[22]Exhibit 53.

[23]Exhibit 1.

[24]Exhibit 2.

[25]Exhibit 3.

[26]T 12 July 2016 p 52 line 20.

[27]Exhibit 89.

[28]Exhibit 85, p 12.

[29]Exhibit 5.

[30]Exhibit 54.

[31]Exhibit 79.

[32]Exhibit 80.

[33]Exhibit 4.

[34]Exhibit 68.

[35]Exhibit 81, the organisational plan being at p 333(b).

[36]Exhibit 55.

[37]Exhibit 6.

[38]Exhibit 55.

[39]Mr Gardem’s submissions par 106.

[40]ASOC par 8.

[41]Exhibit 6.

[42]Exhibit 56.

[43]Exhibit 7.

[44]ASOC par 17.

[45]Exhibit 81, p 326, s 3.2.2.

[46]Exhibit 60.

[47]Exhibit 70.

[48]Exhibit 45.

[49]Exhibit 82.

[50]Exhibit 10.

[51]Exhibit 86.

[52]Exhibit 30.

[53]Exhibit 24.

[54]Exhibit 26.

[55]Exhibit 46.

[56]Exhibit 87.

[57]Exhibit 8.

[58]ASOC par 17.

[59]Exhibit 31.

[60]Exhibit 23.

[61]Exhibit 19.

[62]Exhibit 2.

[63]Exhibit 21.

[64]T1(3) 68.

[65]T2(4) 38:40.

[66]T 11 July 2016 p66.

[67]Exhibit 8.

[68]ASOC par 16.

[69]   ASOC pars 8 and 17.

[70]ASOC pars 16A and 17.

[71]Defendant’s Closing Submissions par 18.

[72]Plaintiff’s Closing Submission par 49.

[73]Berry v Ryan [2001] ACTSC 11 at [23] per Crispin J. 

[74]Howard v State of Queensland [2001] 2 Qd. R. 154 at [13] per Thomas JA with McMurdo P and Ambrose J agreeing at [1] and [28].

[75]WPA s.41 (5).

[76]Or in the belief that the plaintiff made the public interest disclosure.

[77]Berry v Ryan op. cit. at [49].

[78]Under the heading “The Whistleblowers Protection Act”.

[79]The term is defined in Schedule 4 of WPA and in Schedule 4 of the PIDA.

[80]Moreover, these matters are juxtaposed with the complaint about maters not getting the minister’s attention.

[81]“substantial and specific danger to public health or safety”.

[82]Plaintiff’s Closing Submissions paragraphs 51-55 and 63-80.

[83]ASOC pars 3 and 4.

[84]UCPR r150 (1) (k).

[85]Defendant’s submission 27 (c) was ‘there is no identification of a particular maladministration’

[86]For example Mr Gardem’s submissions par 66.

[87]Mr Gardem’s submissions par 67.

[88]Defendant’s submission 28(a) addressed on the disclosure “work place bullying is a weekly event here.  The Mayor has been informed of it and may well be properly described as a work-bully himself.”

[89]Jones v University of Canberra [2016] ACTSC 78 at [92] per Refshauge ACJ.

[90]UCPR r150 (1) (k).

[91]See Ex 26 Code of Conduct, item 8.

[92]WPA s 41 (1) and (3).

[93]ASOC par 8.

[94]ASOC par 8.

[95]ASOC pars 17 and 16A.

[96]Exhibit 1.

[97]Exhibit 3.

[98]Exhibit 4.

[99]Exhibit 60.

[100]T1-32: 1-2.

[101]T1-33:37.

[102]T-2(4): 19-22; Ex 84.

[103]ASOC par 10A (c).

[104]Exhibit 4.

[105] Mr Gardem’s submission par 94.

[106]Exhibit 60.

[107]Pars 96-105

[108]ASOC par 11 a.

[109]ASOC par 11 b.

[110]ASOC par 11 c.

[111]ASOC par 13.

[112]T2-63:35.

[113]T2-64:40.

[114]T1(3) 44:35-45:40 and Ex 79.

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Editorial Notes

  • Published Case Name:

    Graham John Gardem v Leslie Murdoch Edmistone

  • Shortened Case Name:

    Gardem v Edmistone

  • MNC:

    [2018] QDC 118

  • Court:

    QDC

  • Judge(s):

    Andrews SC DCJ

  • Date:

    26 Jun 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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