FEDERAL COURT OF AUSTRALIA

Police Federation of Australia v Nixon [2008] FCA 752

POLICE FEDERATION OF AUSTRALIA AND THE POLICE ASSOCIATION v CHRISTINE NIXON AND STATE OF VICTORIA

VID 1213 OF 2007

RYAN J

21 MAY 2008

MELBOURNE

UPON THE RESPONDENTS by their Counsel undertaking that the persons conducting the interviews referred to in paragraph 20.11 of the affidavit of Dean Joseph Farrant affirmed 20 May 2008 will not publish the results of those interviews except to the first respondent, Assistant Commissioner Cornelius, Superintendent Biggin and Superintendent Cartwright or otherwise more widely than is necessary for the consideration, and if thought appropriate, the formulation of charges under the Police Regulation Act 1958 (Vic) THE COURT ORDERS THAT:

1.         The Order of Ryan J of 18 April 2008 be varied by adding at the end of paragraph 1 thereof the words “or the Victimisation Allegations referred to in the affidavit of Dean Joseph Farrant affirmed 20 May 2008 and filed herein.”

2.         The applicants’ application for further interlocutory relief described in paragraph 19 of the affidavit of Marcus Rogers Clayton affirmed 16 May 2008 and filed herein be otherwise refused.

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

REASONS FOR JUDGMENT

1                          On 18 April this year, I made an order which contained, amongst others, these paragraphs;

‘1.        The respondents be restrained until the hearing and determination of the application, or further order from directing Senior Sergeant Paul Mullett pursuant to s  86Q of the Police Regulation Act 1958 (Vic) to furnish any information, produce any document or answer any question relevant to the “Bullying Allegations” described in paragraph 141 of the amended statement of claim herein.

2.         Liberty be reserved to any party to apply on not less than 48 hours notice in writing to the other parties.’

2                          In the course of explaining why those Orders had been made, I observed, at [91] and [92] of my reasons;

‘91       In my view, the balance of convenience is against an interlocutory restraint in the terms proposed by the applicant.  That would prevent, until the hearing and determination of the action as a whole, the taking through any agency of Victoria Police or the State of Victoria generally, of “any further action with respect to the investigation” of the Bullying Allegations against Mullett.  There seems to be no realistic prospect of bringing about a speedy trial by way of a final hearing of the action as presently formulated.  Nor has either side evinced any willingness to facilitate the trial of a separate question or issue focused on the resumption of the investigation of the Bullying Allegations. 

92        In these circumstances, I consider that an interlocutory injunction restraining for a substantial time any further action with respect to the investigation would unreasonably stultify the investigation.  On the other hand, I do not apprehend that significant harm would be caused to the applicants or Mullett if the investigation were to proceed to the extent of completing the taking of statements from persons, other than Mullett, who are perceived as able to provide information relevant to the Bullying Allegations.  One of the difficulties which has oppressed me in trying to resolve this interlocutory motion is the absence of specific evidence as to the extent to which statements from relevant witnesses have already been procured, either directly by Biggin and Cartwright on behalf of the ESD, or as a result of the parallel inquiries which WorkSafe has been commissioned to undertake, at times as the sole investigative agency.  However, I assume that, apart from interviewing Mullett, little remains to be done by way of completing the inquiry to a point where particulars of a charge, if it is decided to bring one, can be formulated as required by s 72 of the PRA.’

3                          It now appears that some 15 persons, at least some of whom are, or were, members of the Executive of the TPA or officers of that association, remain to be interviewed in relation either to the Bullying Allegations or what has now been called, in an affidavit of Dean Joseph Farrant affirmed on 20 May 2008, “the Victimisation Allegations.”  In the light of the intimations which have been given in correspondence about the extent of the further investigations to be undertaken, it has been contended on behalf of the applicant that the assumption to which I referred at the end of [92] of my reasons of 18 April, has been unfounded and that circumstance has given rise to the invocation by the applicants of the liberty to apply reserved by par 2 of the Order of 18 April 2008. 

4                          The basis of the application for further relief has been explained in an affidavit by Marcus Rogers Clayton, affirmed on 16 May 2008, in which these paragraphs occur;

‘18.      By reason of the matters referred to above, the Applicants apply pursuant to the liberty reserved, on the ground that the investigations now proposed to be carried out by the investigators go beyond what the Court had assumed in the judgment.  The progressing of the investigation as now proposed by the investigators will mean that in all likelihood, the investigation will have been completed before any trial of this proceeding, and this part of the proceeding may be rendered largely nugatory.

19.       In the circumstances now disclosed, the Applicants respectfully seek an Order restraining the Respondents from taking any further action under or pursuant to the Police Regulation Act 1958 (VIC), or alternatively under or pursuant to section 86Q of the Police Regulation Act 1958, with respect to the investigation of the allegations.’

5                          In the course of submissions in support of the application for further relief, Mr Borenstein SC, who appears with Mr Dowling for the applicants, proposed this form of order;

‘THE COURT ORDERS THAT until the final hearing and determination of this proceeding, the respondents by themselves, their servants or agents be restrained from taking any action under or pursuant to the Police Regulation Act 1958, to investigate the bullying allegation as described in paragraph 141 of the further amended statement of claim herein, or any allegations of victimisation or harassment by Senior Sergeant Paul Mullett arising from or related to those bullying allegations.’

6                          It does seem to me, as I put it to Mr Parry SC, who appears with Mr Dalton for the respondents, that the Victimisation Allegations to which Mr Farrant has referred, are ancillary to what has been called in my earlier orders, the “Bullying Allegations”, in the sense that it is alleged that people who have made or supported the Bullying Allegations, have been threatened with injury in their employment or with other detrimental conduct.  Mr Parry accepted, as I understood him, that understanding of the Victimisation Allegations if it were expanded to include conduct directed at individuals, not only because they persisted in making or supporting the Bullying Allegations, but because they had originally made those allegations.

7                          Although the number of persons remaining to be interviewed exceeds the expectation to which I adverted in the paragraphs of my reasons of 18 April 2008, which I have already quoted, I am not disposed, for that reason alone, to expand the relief to preclude the conduct of the interviews of those persons.  Subject to one matter to which I shall shortly refer, I do not consider that any substantial detriment to the applicants or to Mullett, has been demonstrated as likely to arise from the conduct of those interviews. 

8                          In addition, Mr Farrant has deposed in paragraphs 20.14 and 20.15 of his affidavit;

‘20.14  Once the available evidence is assessed, and depending on the assessment of that evidence, each of 5 individuals against whom the Victimisation Allegations are made may have the allegations put to them, and [scil. be] given an opportunity to respond.

20.15   In terms of the use of s 86Q, powers to investigate the Victimisation Allegations against Mr Mullett, should the Court be disposed to extend the Order to cover this aspect of the Victimisation Allegations, Victoria Police would undertake not to direct Mr Mullett, pursuant to s.86Q to furnish any information, produce any document or answer any question relevant to those allegations against him.’

9                          In the light of that intimation, I am disposed to vary paragraph 1 of my Order of 18 April 2008, only by adding to that paragraph the words;

‘…or the Victimisation Allegations, referred to in the affidavit of Dean Joseph Farrant affirmed 20 May 2008.’

10                        A further qualification, which I consider, at least prima facie, undesirable to include in any order of the Court has its origins in a concern about the way in which the investigation of what had hitherto been described as “the Bullying Allegations” has been used in exchanges of propaganda.  That qualification would properly be expression in an undertaking on behalf of the respondents, that the persons conducting the interviews of those referred to in paragraph 20.11 of Mr Farrant’s affidavit, will not publish the results of those interviews more widely than to the first respondent, Assistant Commissioner Cornelius and Superintendents Biggin and Cartwright, or otherwise than is necessary for the consideration, and if thought appropriate, formulation of charges under the Police Regulation Act.  I shall preserve the liberty to apply that has already been ordered. 

Associate:

Dated:         26 May 2008