FEDERAL COURT OF AUSTRALIA

MacDonald v Department of Employment and

Workplace Relations [2003] FCA 631

PRACTICE AND PROCEDURE – preliminary discovery – whether reasonable cause to believe that applicant may have a right to obtain relief – applicant’s conspiracy theory – whether any grounds for suspecting wrongful conduct on the part of the prospective respondent.

Federal Court Rules O 15A r 6

Workplace Relations Act 1996 (Cth) ss 298K, 298L, 298V, 347

Global Intertrade Pty Ltd v Adelaide Festival Centre Trust, Federal Court, unreported, 17 December 1998 referred

Glowatzky v Insultech Group Pty Ltd (1997) 39 IPP 215 referred

Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd, unreported, Lindgren J, 24 May 1996 referred

MALCOLM MACDONALD v DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

A2 of 2003

FINN J

24 JUNE 2003

CANBERRA

THE COURT ORDERS THAT:

            The application be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is a distinctive, and distinctively ambitious, application for preliminary information discovery under O 15A r 6 of the Federal Court Rules.  That rule provides:

“Where –

(a)       there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description has been ascertained;

(b)       after making all reasonable inquiries, the applicant has not sufficient information to enable a decision to be made whether to commence a proceeding in the Court to obtain that relief;  and

(c)        there is reasonable cause to believe that that person has or is likely to have or has had or is likely to have had possession of any document relating to the question whether the applicant has the right to obtain the relief and that inspection of the document by the applicant would assist in making the decision –

the Court may order that that person shall make discovery to the applicant of any document of the kind described in paragraph (c).”

Background

2                     I need only deal with this shortly notwithstanding the volume of material put before me.

3                     The applicant, Malcolm MacDonald, is a Commonwealth public servant employed in the Department of Employment and Workplace Relations.  He has been in dispute with, and critical of the conduct of, superior officers in that department for several years.  His affidavit in support of this application chronicles (with supporting documentary material) a significant number of communications between himself and over a dozen senior officers of the department.

4                     Mr MacDonald has, from at least late 2000, complained of harassment by particular senior officers who held supervisory positions over him or who could otherwise exercise powers over him.  That harassment related in various ways to treatment accorded him which he considered belittled his work, ability and skills.  It was reflected he, contends, in unfair referees reports, criticisms of his performance, refusal to appoint him to higher positions, his being required to do what he considered to be higher duties without appropriate remuneration, in his being notified that his position was excess to requirements and in a compulsory transfer.

5                     He was not hesitant in questioning and complaining about both decisions affecting and views expressed about him, his conduct and performance.  In particular he made complaints (which were rejected) of harassment against two superior officers in late 2000 and early 2001 in which he invoked the dispute resolution procedures of the department’s Agency Agreement.  I would merely note that he attributes the subsequent adverse treatment of him (which founds this application) to his having made these complaints against these officers.  He also notified the Australian Industrial Relations Commission of a dispute in March 2002.  In January 2003 the Commission held it lacked jurisdiction in the matter.

6                     On 18 October 2002, Mr MacDonald made a request under the Freedom of Information Act 1982 (Cth) (“the FOI Act”) for access to a range of documents in the department’s possession.  Those were:

“My recruitment to an APS3 position in Legal Policy Branch, 2 November 1999, February 2000.

My period of temporary employment in Safety and Compensation Policy Branch April to October 2000.

An offer of TPL at APS4.2 in Legal Policy Branch 2 October 2000.

My harassment complaint to former WRPL Group Manager Barry Leahy Feb/March 2001.

Recruitment processes RU2000/226, RU2000/225, RU2001/12, DM10191.

The offer and subsequent termination of my employment in Framework Policy Branch April 2001 to October 2001.

The redundancy process to which I am subject.

My dispute with the Department under the Certified Agreement in relation to the redundancy process.

Staff assessment documents.

Work assessment reports.

Any other documents relating to my employment with the Department.”

7                     An authorised officer granted Mr MacDonald access to certain of the documents within these categories while access was refused to others on the basis of exemptions provided in the FOI Act.

8                     On 15 November 2002 he requested internal review of the authorised officer’s decision.  As a result of that review a number of additional documents were provided to him.  Others, though, remained exempt.

9                     The review officer’s decision specified the exemption provisions relied upon and the reasons for their invocation.  The relevant provisions were s 36 (internal working documents), s 40(1)(c) (management and assessment of personnel), s 41 (personal privacy) and s 42 (legal professional privilege).  It is necessary to refer shortly to the review officer’s statement of reasons as the documents sought in the present application are those for which exemption was given (other than those exempted on grounds of legal professional privilege).

10                  The reasons given for invoking the s 36 exemption included that disclosure would:

“.        Disclose matter in the nature of consultation or deliberation that has taken place for the purposes of the deliberative process involved in the functions of the Department as:

            -           these documents set out the views of the departmental officers who were involved in the management of the Department and the proceedings involving yourself, and in relation to the making of an offer to you of a voluntary redundancy;  the dispute concerning the offer, your concerns about staffing and the harassment claim that you made;

            -           these documents contain draft correspondence which record the views and opinions of departmental officers and consultation that took place between those officers and the Executive;

            -           these documents record views expressed by departmental officers in response to an invitation to discuss the issues of the voluntary redundancy dispute and harassment and staffing disputes.

.        Disclose matter in the nature of opinion or recommendation:

            -           in that the documents express the opinions of those departmental officers who were consulted in the above matters;  or

            -           in that the documents contain expressions of opinion by the departmental officers concerned as to the options available to the Department in relation to the various matters raised by you;  and

            -           that include recommendations by departmental officers involved to the Executive concerning the options available to the Department.”

11                  The s 40(1)(c)  reasons given included:

“The documents exempted under this section fall within subsection 40(1)(c), and are exempt because disclosure of those documents could reasonably be expected to have a substantial adverse effect on the Department’s ability to manage and assess personnel.  The documents contain strategies and advice for the management of personnel issues in relation to the applicant.  The release of such documents would have a significant detriment to the future management of personnel issues within the agency as it would discourage the recording and provision of advice, draft documents, opinions and recommendations.  Departmental officers may be reluctant to express opinions, advice and recommendations in relation to personnel issues if they perceive that they may be opening themselves up to harassment should the employee concerned later have access to those documents.”

12                  The s 41 (privacy) reasons indicated (inter alia) that:

“(1)     The information contained in these documents refers to the personal affairs of other persons.

The Applicant’s contention

13                  Mr MacDonald considers that he may have  a right to relief against the Commonwealth under the Workplace Relations Act 1996 (Cth) (“the WR Act”) on account of the treatment of him by departmental officers.  Before outlining his contentions I should refer to the following provisions of that Act.

14                  Section 298K provides (in part):

“(1)     An employer must not, for a prohibited reason, or for reasons that included a prohibited reason, do or threaten to do any of the following:

…

            (b)        injure an employee in his or her employment;

            (c)        alter the position of an employee to the employee’s prejudice.”

15                  Section 298L specifies that conduct in s 298K(1) is for a prohibited reason if it is carried out because the employee (inter alia):

“(h)     is entitled to the … benefit of an industrial instrument or an order of an industrial body;  or

(i)        has made or proposes to make any inquiry or complaint to a person or body having the capacity under an industrial law to seek:

            (i)         compliance with that law;  or

            (ii)       the observance of a person’s rights under an industrial instrument;  or

(j)        has participated in, proposes to participate in or has at any time proposed to participate in a proceeding under an industrial law.”

16                  Importantly for the purposes of the present application s 298V provides:

“If:

(a)       in an application under this Division relating to a person’s … conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent;  and

(b)       for the person … to carry out the conduct for that reason or with that intent would constitute a contravention of this Part;

it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the person … proves otherwise.”

17                  Finally s 347 renders a party to a proceeding in a matter arising under the WR Act immune from a costs order unless that party instituted the proceeding “vexatiously or without reasonable cause”.

18                  Turning now to the applicant’s contentions, he claims that, in light of the course of conduct taken by departmental officials to his prejudice after he made harassment complaints against two of his superiors, he has reasonable cause to believe that a reason for that conduct was for one or other of the reasons given in s 298L that have been quoted above (those reasons, seemingly, being the only possible ones in s 298L of which he could avail).

19                  As his affidavit makes plain, he considers the conduct engaged in, and the decisions taken in individual instances, to have been unfair or improperly motivated.  This said, as his counsel conceded, none of the communications made to him by his superiors (either which respond to criticisms, complaints etc made by him or which give reasons for the decisions and actions of departmental officials) reveals any “smoking gun”.  If I can interpolate, the contrary is the case.

20                  Nonetheless, Mr MacDonald points to the decision of the authorised review officer applying the various statutory exemptions to documents sought by him.  These reasons, he contends, disclose that he has not been supplied with the totality of the possible reasons for the various decisions of his superiors.  He needs to know what those documents reveal about the actual reasons for decision and action by his superiors before he determines whether to commence proceedings under the WR Act for relief.  He is entitled, he submits, to know if they reveal that the Commonwealth has a “knock-out” defence to a s 298K claim.  Reliance for this is placed on the decision of Mansfield J in Global Intertrade Pty Ltd v Adelaide Festival Centre Trust, Federal Court, unreported, 17 December 1998.

Conclusion

21                  It is important to emphasise that such claim for possible relief as Mr MacDonald considers he may have under the WR Act is premised upon the course of conduct of his superiors having been engaged in for a prohibited reason.  The essence of that claim would be that such a reason infected the conduct of each of the officials who took the decisions or engaged in the conduct which collectively he has called into question in this proceeding.

22                  As his counsel has conceded, the documentary communications made to him do not reveal that a prohibited reason was being relied upon.  In consequence he has to assert that those documents may not reveal all of the reasons, or the true reason, for his superiors decisions and actions.  It is for this reason that he places such reliance on the reasons for decision of the FOI review officer.  That assertion, though, has led Mr MacDonald to allege the possibility of something in the nature of a conspiracy between the more than one dozen senior officers (including those who dealt with the FOI application) whose decisions and actions he says may be improper.  The entire course of conduct involving all of those officials is relied upon as evidencing possibly prejudicial conduct for s 298K purposes.

23                  There are, in my view, a number of objections to the application made by Mr MacDonald.  O 15 r 6(a) requires that there be “reasonable cause to believe that the applicant … may have the right to obtain relief in [this] Court” under the WR Act.  Such claim as he suggests he may have would require proof (a) of an improper reason infecting the course of conduct and decision he has called into question;  and (b) of the complicity of all of the officials he suggests were concerned in effectuating that reason.

24                  For my own part, even accepting that O 15A r 6(a) should be applied beneficially, I have real difficulty in accepting that Mr MacDonald has adequately made out what is required by rule 6(a).  The documentary evidence before the Court does not suggest or give reason to suspect, let alone reveal, the existence of some arrangement of understanding to engage in conduct proscribed by s 298K, involving a significant number of senior officers in the department (including the Secretary) located in various branches and at varying levels of seniority.  Further it is not at all obvious how the conduct called into question by Mr MacDonald can reasonably be believed to be possibly related to one of s 298L’s prohibited reasons.  Mr MacDonald’s bare assertion does not of itself provide reasonable cause for belief.  Neither does the bald assertion of a conspiracy theory.

25                  Rule 6(a) postulates an objective test:  Glowatzky v Insultech Group Pty Ltd (1997) 39 IPP 215 at 220.  If that test is satisfied, then Mr MacDonald may be able to “fish” for information including as to any available defence:  see Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd, unreported, Lindgren J, 24 May 1996;  Global Intertrade Pty Ltd v Adelaide Festival Centre Trust, above.  I am not satisfied, to use Mansfield J’s description in Global Intertrade, that Mr MacDonald has achieved the hurdle of getting into the O 15 r 6(a) spectrum.  I do not consider that the FOI review officer’s reasons can avail him in this.  For those reasons to provide comfort to him it has to be presupposed that the officer in turn was complicit in acting for a prohibited reason.  Her reasons may be open to question as to the manner in which she applied the exemptions (I express no view on this).  But those reasons, no less than the reasons of the other officers concerned, are bereft of suggestion, and do not invite suspicion, that an “improper reason” was being acted upon.

26                  If I were wrong in the view I have taken I would have been minded on discretionary grounds to refuse the application in any event.  A claim under s 298K turns on the reason(s) for which conduct is engaged in.  The Act recognises that the person whose actions are being called into question is likely to be an information monopolist:  cf General Motors-Holden’s Pty Ltd v Bowling (1976)51 ALJR 235 at 241.  The reversal of the onus of proof as to a person’s reason(s) for conduct in s 298V evidences this.  Given that onus reversal, and given the costs immunity contained in s 347 of the Act, I consider that a person in Mr MacDonald’s position with the information he already has available to him should properly have resorted directly to a claim under s 298T of the WR Act if he wished to question the conduct of persons whom he considers may have acted in a manner proscribed by s 298K.  If, on discovery in that proceeding, he ascertained that they have a good defence to the claim, he could discontinue the proceeding without exposure to a costs order (unless he has acted vexatiously or without reasonable cause:  s 347 of the WR Act).

27                  In making the above comments I should not be taken as suggesting that preliminary discovery cannot, or should not, be permitted in respect of a possible claim under s 298K of the WR Act.  What I am suggesting is that where (i) Commonwealth officials have purported to provide their reasons for their decisions and action;  (ii) all such information has been made available under FOI legislation as the Commonwealth is prepared to release;  and (iii) the person affected has reasonable cause to believe that he or she may have a right to relief under the WR Act, then, because of the presumption of impropriety raised by s 298V the WR Act will ordinarily furnish the proper vehicle for ascertaining (for s 298K purposes) the reasons why particular governmental conduct was engaged in.

28                  I will order that the application be dismissed.

Associate:

Dated:              24 June 2003