FEDERAL COURT OF AUSTRALIA

Mason v MWREDC Limited [2011] FCA 1512

FEDERAL COURT OF AUSTRALIA

Mason v MWREDC Limited [2011] FCA 1512

CORRIGENDUM

1    In paragraph 76 of the Reasons for Judgement, the reference to “Ms Wright” should read “Ms Pearse”.

2    In paragraph 97 of the Reasons of Judgement, in the third line, the reference to “Mr Turner was liable to discipline” should read “Mr Mason was liable to discipline”

Associate:

Dated:    3 January 2012

THE COURT ORDERS THAT:

1.    Subject to Order 4, MWREDC Limited (“REDC”) and Narelle Pearse give discovery to Frank Mayne Mason (“Mason”) of the following documents:

1.1    any Board Paper (or Report or Memorandum submitted to or prepared for the Board of REDC) or an entry in a Board Paper or Report or Memorandum so prepared concerning the subject matter of the attendance of Mason at activities associated with a “REDC 2010 Trade & Investment Mission” to the People’s Republic of China (the “Mission”) including but not limited to:

(a)    any invitation to Mason or permission given to Mason to attend the Mission or a document authorising him to attend the Mission (an example of which is a Registration Form for participation in Mission activities);

(b)    any document disclosing the cost of attendance at activities associated with the Mission given to Mason prior to the commencement of the Mission;

(c)    any invoice or other bill sent to Mason regarding his attendance at any activities associated with the Mission;

(d)    any minutes or briefing papers concerning payment by Mason of any invoice or bill in respect of his attendance at activities associated with the Mission or any of Mason’s subsequent dealings with REDC or Ms Pearse in connection with the Mission;

1.2    any letters, emails or other communications between REDC and Mason or between REDC and the Department of Employment, Economic Development and Innovation regarding payment by Mason of any invoice or bill concerning his attendance at any activities associated with the Mission or any of Mr Mason’s subsequent dealings with REDC or Ms Pearse in connection with the Mission;

1.3    any memos, file notes, records of telephone conversations or other documents of REDC or Ms Pearse concerning Mason and matters connected with the payment or claims for payment of any invoice or bill relating to Mason’s attendance at any activities associated with the Mission or any of Mr Mason’s subsequent dealings with REDC or Ms Pearse in connection with the Mission.

2.    Subject to Order 4, Ian Fletcher (the “Chief Executive”), in his capacity as Chief Executive of the Department of Employment, Economic Development and Innovation of the State of Queensland, give discovery to Frank Mayne Mason (“Mason”) of any document or copy of a document falling within the description of documents referred to in Order 1, in the possession of the Department of Employment, Economic Development and Innovation of the State of Queensland.

3.    The applicant’s costs of and incidental to the Application be paid by the first and second respondents.

4.    The first, second and fourth respondents have liberty to apply in relation to the question of the terms and conditions of security to be provided by the applicant in connection with the provision of discovery by the first, second and fourth respondents and those respondents and the applicant are directed to confer with a view to resolving the terms and conditions upon which the applicant is to provide security.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

Background

1    These proceedings concern an application under Rule 7.23 of the Federal Court Rules 2011 by a prospective applicant, Mr Frank Mason, to potential principal proceedings, for an order that each prospective respondent give discovery of documents each prospective respondent has, or is likely to have, or has had, or is likely to have had, in that prospective respondent’s control, directly relevant to the question of whether Mr Mason has a right to obtain the relevant relief in the contemplated principal proceeding.

2    Rule 7.23 is in these terms:

7.23    Discovery from prospective respondent

    (1)    A prospective applicant may apply to the Court for an order under subrule (2) if the prospective applicant:

    (a)    reasonably believes that he or she may have the right to obtain relief in the Court from a prospective respondent whose description has been ascertained; and

    (b)    after making reasonable inquiries, does not have sufficient information to decide whether to start a proceeding in the Court to obtain that relief; and

(c)    reasonably believes that:

(i)    the prospective respondent has or is likely to have or has had or is likely to have had in the prospective respondent’s control documents directly relevant to the question whether the prospective applicant has a right to obtain the relief; and

(ii)    inspection of the documents by the prospective applicant would assist in making the decision.

(2)    If the Court is satisfied about matters mentioned in subrule (1), the Court may order the prospective respondent to give discovery to the prospective applicant of the documents of the kind mentioned in subparagraph (1)(c)(i).

                                [emphasis added]

3    The Originating Application must be supported by an affidavit stating the facts upon which the prospective applicant relies, identifying as precisely as possible, the documents or categories of documents to which the application relates: Rule 7.24(1) and (2).

4    The Originating Application is supported by two affidavits. The first is Mr Mason’s affidavit sworn 21 November 2011 (filed on 22 November 2011) and the second is Mr Mason’s affidavit sworn and filed on 9 December 2011.

5    The first or principal affidavit simply recites that Mr Mason is the prospective applicant making application under Rule 7.23 for orders for preliminary discovery. Mr Mason exhibits to that affidavit as Exhibit “FFM1” a bundle of 29 documents consisting of letters addressing the contended facts and circumstances said to be relevant to each of the integers to be satisfied under Rule 7.23. In the principal affidavit, Mr Mason does not depose, in any narrative sense, to the foundation facts that explain the basis for his contended reasonable belief for the purposes of Rule 7.23(1)(a) or the other integers of Rule 7.23. Nor does Mr Mason say that the matters asserted by his lawyers in the various letters which they wrote (forming part of Exhibit “FFM1”) are based upon his instructions and he believes those facts to be true and correct. I accept, of course, that the assertions contained in the letters written by his solicitors are based upon Mr Mason’s instructions. However, each of the letters written by Mr Mason’s lawyers are simply assertions of fact or contentions as to particular matters, by them.

6    In an application under Rule 7.23, the applicant (and where relevant, other deponents) must depose to the relevant facts that make good the integers of Rule 7.23.

7    In the second affidavit (9 December 2011), Mr Mason asserts some facts said to be relevant to the relief sought under Rule 7.23 (particularly paras 3, 4, 5, 6, 7, 8, 10 and 11). Other documents are exhibited to the second affidavit as Exhibit “FFM2” (para 1). The documents at “FFM1” and “FFM2” have been tendered as Exhibits 1 and 2 in the Application. Counsel for Mr Mason, Mr Francey, asserts that each of the letters at Exhibit 1 (“FFM1”) constitute “evidence” in support of the Application. Nevertheless, the letters written and sent by Mr Mason’s solicitors cannot rise above evidence of the making of an assertion rather than probative evidence of the fact asserted. Mr Mason must put the material facts, in a logical and coherent way, in evidence in support of the Application. However, the letters written by Mr Mason’s solicitors provoked responses from the prospective respondents and those matters need to be examined to determine whether Rule 7.23 is properly engaged.

The contentions of Mr Mason

8    Mr Mason says that he has been employed as a public servant in the Queensland Public Service for over 25 years serving in various government departments in a range of roles with State-wide responsibilities (para 7, affidavit 9 December 2011). Mr Mason in 2011 has undertaken the role of a Principal Regional Development Officer within the Mackay Whitsunday Service Centre of the Department of Employment, Economic Development and Innovation otherwise known as “DEEDI” (the “Department”) as an employee of the Department (Department’s letters to Mr Mason dated 13 September 2011 and 23 September 2011).

9    On 1 September 2011, Mr Mason received an email at 9.51am referenced under the subject of “Outstanding debt” from the Chief Executive Officer of an entity described in the email as “REDC” which Mr Mason describes as the “first prospective respondent” at para 11 of his affidavit of 9 December 2011. The first prospective respondent is an entity described as MWREDC Limited (“MWREDC”) and thus Mr Mason describes that entity as the same entity as REDC. I will hereafter generally describe the first prospective respondent as REDC. MWREDC Limited or REDC is an Australian public company limited by guarantee and described in an organisational search undertaken on 11 November 2011 of the database maintained by the Australian Securities and Investments Commission (“ASIC”) of company records, as a non-profit company. The Chief Executive Officer and author of the email is Ms Narelle Pearse and Ms Pearse is the second prospective respondent (“Ms Pearse”). The email is in these terms:

Further to our correspondence regarding your offer of $300 in full and final settlement of your debt with REDC and my subsequent rejection of this offer, the matter was referred to the REDC board for instruction.

The REDC board has advised that they will not accept part settlement of this debt, and requires the outstanding balance of $330 to be deposited to the REDC bank account by close of business on Friday the 2nd of September. Should this payment not be received by this date, the board has instructed that the debt be recovered from DEEDI [the Department], and will write to the Director General requesting settlement.

Rgds

Narelle

                                [emphasis added]

10    The words in italics in the email quoted above reflect the central matter of concern to Mr Mason coupled with the contention as to the consequences said, arguably, to have arisen from the conduct of REDC, Ms Pearse and the REDC board. Mr Mason contends that he is engaged in a dispute with REDC as to whether an amount of $330 is payable by him to REDC in connection with certain matters to be mentioned shortly. Mr Mason contends that in order to put pressure upon him or strongly encourage him to pay the disputed debt, Ms Pearse, apparently on instructions from the REDC board, told Mr Mason in the email of 1 September 2011 that unless the debt was paid by close of business on the following day, REDC would recover the debt from the Department and would write to the Director-General of the Department requesting settlement of the disputed debt. In other words, unless Mr Mason paid the disputed debt said to be owed by him, by close of business on the following day, REDC would write to the most senior Departmental officer of Mr Mason’s employer department, the Director-General of the Department, to pursue recovery of Mr Mason’s disputed debt from the Department.

11    There is no material put on by Ms Pearse or REDC which suggests that the Department had any legal obligation to pay the claimed debt.

12    At para 11 of Mr Mason’s affidavit of 9 December 2011, he says this about the disputed debt:

As I understand it, the claimed debt referred to in the email [of Ms Pearse of 1 September 2011] … is the balance of an amount said to be owing to [REDC] for gifts and administration in relation to a 3 day Australian delegation to Yantai, China as part of the REDC 2010 Trade & Investment Mission. I was never part of that Mission. Rather, I visited Yantai for 2 days as part of a vacation I was undertaking to China when the delegation was there and attended in the full knowledge of my Superior, Ms Nikki Wright, the Third Prospective Respondent. I previously paid what I considered to be a reasonable contribution in this regard, absent an itemized account from [REDC], and the only explanation I can think of for the actions taken against me over the past three months is a concerted effort for me to pay this sum.

13    It seems therefore that Mr Mason visited Yantai in a personal capacity on vacation and for two days, during the period of the delegation’s visit to Yantai, he attended upon or engaged with the delegation in various activities which resulted in an obligation on Mr Mason’s part to make a contribution to REDC for expenses or administrative costs reflecting, to some degree, Mr Mason’s engagement in particular activities. Mr Mason describes the amount of the contribution (whatever it may ultimately be) as referable to a contribution to gifts and administration in relation to the activities of the REDC 2010 Trade & Investment Mission to Yantai.

14    Mr Mason responded to Ms Pearse’s email of 1 September 2011, by email at 10.16am on that day and said:

This matter does not have anything to do with DEEDI as I was on approved recreation leave. If you wish to pursue this matter please refer all correspondence to [Mr Mason’s private post box address].

I am amazed this is a priority issue for your board given the outcomes of the visit to China and subsequent investment in Mackay. Can you please explain this to me?

15    Ms Pearse responded to that email from Mr Mason, by email at 10.21am and said:

I can only follow their instruction. I will pass you[r] request for more information onto them. [the Board]

16    Mr Mason on 2 September 2011 at 9.12am responded more fully to Ms Pearse’s email of 1 September 2011 quoted at [9] of these reasons, in these terms:

I … note that you will pass onto your board my request for an explanation as to why REDC is pursuing this issue in all the circumstances. …

I assume this means that you will not be writing to the Director General of DEEDI in respect of the matter as outlined in your email of 1 September 2011 sent at 9.51AM. I also assume that you will comply with my request for any further communications regarding this matter to be sent to my PO Box.

I should also disclaim the subject line in your email and that in previous emails regarding this matter, referring to an “Outstanding debt” or “Outstanding Payment”. To make things clear, I do not accept that there is any amount outstanding. I say this for reasons previously advanced plus because since the email exchanges of April this year and despite the initial rejection of my offer to pay $300 in full and final settlement of REDC’s invoice:

1.    I transferred $300 into REDC’s account on 28 April 2011 and, so far as I can recall, have not heard from you until recent exchanges.

2.    I have since participated in the subsequent Yantai group visit here, together with REDC, which resulted in significant investment outcomes.

Moreover, you have not raised this issue in the intervening time. In these circumstances I consider the matter is one in which any sum claimed is the subject of accord and satisfaction and/or REDC is estopped from claiming any amount said to be outstanding i.e. REDC stood by while I participated in the recent visit of the Yantai group and have only now revived the matter.

Further, I am concerned that this matter is now being pursued with a threat to raise it with the Director General of DEEDI when the alleged debt is disputed and arises in a personal context. This may constitute an offence under the Australian Consumer Law as being in contravention of the prohibition of undue harassment or coercion in contravention of Section 50 of that national legislation.

I would invite you, and REDC, to reconsider the matter and advise accordingly as set out above.

Please note that any unwarranted action in respect of this matter may cause avoidable distress/embarrassment and in that regard all rights I may have are expressly reserved.

17    These emails described at [9], [14], [15] and [16] of these reasons, comprise Exhibit 9 in the Application tendered by counsel for REDC and Ms Pearse.

18    Counsel for Mr Mason contends that the conduct of REDC and Ms Pearse reflected in the email of 1 September 2011 containing the threat to take up recovery of the disputed debt asserted against Mr Mason, from Mr Mason’s employer, provides the foundation upon which Mr Mason reasonably believes that he may have a right to obtain relief in the Federal Court of Australia from REDC and Ms Pearse arising out of an arguable contravention of s 50 of The Australian Consumer Law (the “ACL”). The ACL is contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth) (the “Act”) and made, by s 131 of that Act (Part XI), a law of the Commonwealth, applying to the conduct of corporations and, in particular, a law applying to contraventions of Chapter 3 (which contains s 50) of Schedule 2, by corporations. Section 6 of the Act extends the application of Part XI (relevantly here, in the way described in s 6(3) described later in these reasons) such that the provisions have the effect they would have if a reference in the provisions of Part XI to a corporation included a reference to a person not being a corporation, among other considerations.

19    Section 50, relevantly, is in these terms:

Division 5 – Other unfair practices

…

50    Harassment and coercion

(1)    A person must not use physical force, or undue harassment or coercion, in connection with:

        (a)    the supply or possible supply of goods or services; or

        (b)    the payment for goods or services; or

(c)    …

        (d)    …

    …

(2)    …

                                    [emphasis added]

20    On 6 October 2011, Mr Mason’s lawyers wrote to the Chairman of REDC taking up issues arising out of the email of 1 September 2011 and related matters to be mentioned shortly. In the letter of 6 October 2011, Mr Mason’s lawyers expressed the view that REDC’s threat to raise the matter of the disputed debt with the Director-General of the Department could constitute a contravention of s 50 of The Australian Consumer Law. On the same day Mr Mason’s lawyers sent a copy of that letter to Ms Pearse. Mr Mason’s lawyers wrote a further letter to the Chairman of REDC on 12 October 2011 and sent a copy of that letter, on the same day, to Ms Pearse. On 14 October 2011, the solicitors for REDC responded by letter in these terms:

We act for [REDC] which has briefed us with your letter dated 6 October 2011.

We are instructed that REDC did not write to DEEDI about the alleged debt of $330, which answers the matters set out in your letter.

                                [emphasis added]

21    On 14 October 2011, Mr Mason’s lawyers wrote to the solicitors for REDC and said that no response had been received from the Chief Executive Officer of REDC nor any reply from the Department’s Mackay Director, Ms Wright. Mr Mason’s lawyers said that they understood that Ms Wright attends REDC Board meetings. On 24 October 2011, the solicitors for REDC responded to that letter in these terms:

We refer to your letter received 14 October 2011.

We are instructed to reply for [REDC] and its Chairperson and Chief Executive Officer that [REDC] has not contacted [the Department] at all about the debt of $330.

[REDC] will not give the requested documents to your client as your client has not demonstrated a proper basis for his request.

                                [emphasis added]

22    Counsel for REDC and Ms Pearse, Mr Collins, contends that the letters dated 14 October 2011 and 24 October 2011 from REDC’s solicitors to Mr Mason’s solicitors asserting that REDC did not give voice to the suggestion that it might contact the Department and the Director-General, and thus did not give effect to the contended threat, is decisive of the questions arising under Rule 7.23 as Mr Mason could not reasonably believe that he may have a right to obtain relief in respect of the contended contravention of s 50 of the ACL as no step was taken to act on the contended threat.

23    However, that question is a question of fact to be determined in a principal proceeding if commenced, and Mr Mason is not bound to accept in an application under Rule 7.23 (or be taken to be required to accept) the contentions of REDC on a question of fact, as dispositive of a fact reasonably put in issue. Mr Mason contends, as to the threshold conduct, that he has an objectively reasonable basis for believing that the conduct of REDC and Ms Pearse in making the contended threat engages s 50 of the ACL, and a reasonable basis for believing that the Department acted upon, in part at least, questions going to the circumstances surrounding the non-payment of the amount said to be due from Mr Mason as a contribution to REDC’s costs and expenses in respect of the Trade & Investment Commission Mission to Yantai. The question of whether the conduct engages the integers of s 50(1)(a) or (b) are further discussed later in these reasons.

24    In the response of 24 October 2011, REDC’s solicitors did not contend that REDC did not have the requested documents but simply asserted that REDC would not give the requested documents to Mr Mason as Mr Mason had not demonstrated, in the view of those lawyers, a proper basis for the request.

The issues as between Mr Mason and the Department

25    The subsequent chronology involves these matters.

26    On 13 September 2011, the Acting Associate Director-General of the Department, Mr Bruce Turner, wrote a letter to Mr Mason in which he said these things:

I have received allegations that you may have engaged in behaviour which could be in breach of the Public Service Act 2008 (the Act) and the [Department’s] former Code of Conduct and/or the Code of Conduct for the Queensland Public Service which came into effect on 1 January 2011.

Specifically, these allegations relate to some concerns which have arisen as to how you may have managed a number of issues regarding Conflict of Interest and other related matters. I have deliberately chosen not to release more detail at this time to protect the Integrity of the investigation process and to provide you with a measure of protection against potential allegations against you of interfering with documentation and/or witnesses.

… I wish to advise that the department will now conduct an investigation into these allegations. You will be contacted in due course in relation to the process.

27    Mr Turner said that s 189(1) of the Public Service Act 2008 (Qld) provides that an officer may be suspended from duty if the employing authority reasonably believes that the officer is liable for disciplinary action; s 192(2) of that Act provides that natural justice is not required for the suspension of an officer on normal remuneration; and on preliminary consideration of the allegations Mr Turner reasonably believed that Mr Mason “may be subject to disciplinary action”. In the letter, Mr Turner said that he had decided to suspend Mr Mason from duty on normal remuneration, effective immediately following Mr Mason’s current leave period. The suspension would take effect from Monday, 10 October 2011 and remain in place until Friday, 9 December 2011 unless otherwise determined. Mr Mason was reminded that “[w]hile on suspension you are to keep yourself available to assist with the investigation process as and when you are requested to do so”.

28    The suspension was coupled with a series of directions given to Mr Mason which included a direction not to return to any departmental site without obtaining relevant permission; not to contact or communicate with any persons internal or external to the Department “with regard to these matters”, apart from Mr Mason’s legal or Union representative; an obligation to make himself available should he be required to assist with the process; an obligation to “not leave Mackay (weekends aside) without gaining my permission to do so”; an obligation to keep the matters referred to in the letter confidential; and an obligation to keep all matters associated with the proposed investigation confidential.

29    Issues arose between the Department and Mr Mason’s solicitors concerning aspects of the letter of 13 September 2011 with the result that “[i]n order to resolve the confusion” Mr Turner elected to send a replacement letter to Mr Mason dated 23 September 2011 displacing the letter of 13 September 2011.

30    In the second letter Mr Turner recited that he had received allegations that Mr Mason had engaged in behaviour in breach of the Public Service Act 2008 and the other instruments mentioned in the first letter. Mr Turner again said that “[s]pecifically, these allegations relate to some concerns as to how you have managed a number of issues regarding conflict of interest and other related matters”. Mr Turner again said that he had deliberately chosen not to release more detail at the time of writing his letter of 23 September 2011 in order to protect the integrity of the investigation process. It seems that the further reason for not disclosing more detail of the allegations to Mr Mason as recited in the earlier letter (namely, to provide Mr Mason with a measure of protection against potential allegations against him of interfering with documentation and/or witnesses) had evaporated. In the second letter, Mr Turner recited that s 189 of the Public Service Act 2008 provides that a public service employee may be suspended from duty if the Chief Executive reasonably believes that “the employee is liable to discipline under a disciplinary law”. Mr Turner also recited that natural justice was not required to be afforded to Mr Mason if the suspension was effected “on normal remuneration”.

31    Mr Turner in the second letter recited that having reviewed the allegations, he reasonably believed that Mr Mason is liable to discipline under a disciplinary law and having regard to the consideration that no appropriate alternative duties were available to be performed by Mr Mason, Mr Turner had decided to suspend Mr Mason from duty on normal remuneration effective for the periods earlier described.

32    Again, Mr Turner advised Mr Mason that he would be required to make himself available to assist with the investigation process as and when required to do so. Mr Turner advised Mr Mason that the suspension from duty was not a punishment or part of a disciplinary process but simply administrative action having regard to the relevant belief formed by Mr Turner. Mr Mason was told, in the letter, that at the conclusion of the investigation, Mr Mason would be notified in writing of the outcome and whether any other action was to be considered. Mr Turner also said this:

Upon finalisation of the investigation I will decide whether I consider disciplinary action is warranted. If I consider that disciplinary action should be taken you will be given all relevant information regarding the grounds for discipline and an opportunity to show cause as to why you should not be disciplined.

                                [emphasis added]

33    The five directions recited in the first letter were also recited in the second letter.

34    On 6 October 2011, Mr Mason’s solicitors wrote to Ms Wright (the Mackay departmental representative and the third prospective respondent) requesting access to “relevant documents” by 14 October 2011. Those documents are the documents described in the letter dated 6 October 2011 to the Chairman of REDC (a copy of which was enclosed in the letter to Ms Pearse of 6 October 2011). The request was made of Ms Wright on the footing that while the documents may have been in the possession of REDC, the documents may also have been in the possession of Ms Wright in her capacity as a departmental officer. The documents are described in these terms:

REQUIRED INFORMATION

1.    All Board Papers concerning the attendance of Frank Mayne Mason (“Mr Mason”) at a REDC 2010 Trade & Investment Mission to China (“the Mission”) including but not limited to:

(a)    Any invitation to him or permission for him to attend or similar document e.g. Registration Form for the Mission.

(b)    Any document disclosing the cost of attendance at the Mission provided to Mr Mason prior to the Mission.

(c)    Any invoice or other bill sent to Mr Mason regarding his attendance at the Mission.

(d)    Any Minutes or Briefing papers regarding payment by Mr Mason of any invoice or bill in respect of his attendance at the Mission or any of his subsequent dealings arising from the Mission.

2.    Any letters, emails or other communications between REDC and:

    (a)    Mr Mason; or

    (b)    [the Department] in any capacity;

regarding payment by Mr Mason of any invoice or bill regarding his attendance at the Mission or any of his subsequent dealings arising from the Mission.

3.    Any memos, file notes, records of telephone conversations or other internal documents relating to Mr Mason in connection with payment of any invoice or bill regarding his attendance at the Mission or any of his subsequent dealings arising from the Mission.

35    Apart from those documents, Mr Mason’s lawyers sought access to Mr Mason’s “work computer hard drive, including his personal file and DEEDI email file …”. A response was sought by 11 October 2011 as to whether access would be given by 14 October 2011. A further letter was written to Ms Wright on 12 October 2011 making reference to the contended assistance the documents might give in enabling Mr Mason to make a decision whether to commence proceedings seeking relief in respect of a contended contravention of s 50 of the ACL. On 12 October 2011, Mr Mason’s solicitors also wrote to Mr Robert Setter, the Associate Director-General of the Department. The letter enclosed a copy of the solicitor’s letter to REDC’s Chairman of 6 October 2011, the letter to the Department (Ms Wright) of 6 October 2011, the further letter to REDC’s Chairman of 12 October 2011 and the letter to Ms Wright of 12 October 2011.

36    The letter to Mr Setter asserted that Mr Mason was concerned that “the allegations” might be contrived or relevantly connected with the dispute concerning the debt of $330. The letter raised questions about the validity of the suspension in that context.

37    On 14 October 2011, Mr Setter responded on behalf of the Department to the letter from Mr Masons’s solicitors. Mr Setter made reference to the letter of 12 October 2011 and the letters to Ms Wright of 6 and 12 October 2011 in which a request is made that various documents be provided “purportedly on the basis of an email sent to Mr Mason by the REDC on 1 September 2011 regarding an alleged outstanding debt”. Mr Setter made these contextual observations:

I note that Mr Mason did not commence leave until 12 September 2011 and in fact responded to [the email demand of 1 September 2011] on 2 September 2011. You have requested a copy of Mr Mason’s work computer hard drive, including his personal file and DEEDI email file. Additionally, Mr Mason seeks from the department a number of documents set out in the Schedule attached to correspondence to the REDC of 6 October 2011 regarding payment by Mr Mason of any invoice or bill regarding his attendance at a REDC 2010 Trade & Investment Commission Mission to China.

38    Mr Setter then said this:

As you know, an independent investigator has been appointed to conduct an investigation into allegations which have been made against your client. In order to protect the integrity of that investigation the Department cannot release the requested documentation to your client at this stage. Mr Mason will be provided with an opportunity to respond to the allegations as a part of that investigation and will be afforded procedural fairness during the investigation process.

39    It seems clear enough from Mr Setter’s letter that Mr Mason could not be provided with the documents sought by him relating to the contextual matters described by Mr Setter because the provision of those documents, as sought, might in part at least, have an affect upon the integrity of the investigation the department was then conducting through an independent investigator appointed to conduct an investigation into allegations made against Mr Mason. If the matters relating to the disputed debt of $330 and the documents concerning any invoice or bill issued to Mr Mason by REDC concerning his attendance at activities forming part of the REDC 2010 Trade & Investment Commission Mission to China was irrelevant to the investigation then being conducted by an independent investigator, production of the documents would not be likely to compromise the integrity of the investigation into the actual allegations under examination.

40    It follows that on the basis of Mr Setter’s letter there is, at least arguably, a relationship between the steps implemented by the Department and matters relating to the disputed debt as between Mr Mason and REDC. There seems a proper basis for an inference that there must have been a communication of the facts and circumstances relating to the controversy as between Mr Mason and REDC, to the Department, either because the information was communicated to Ms Wright by Ms Pearse (or someone else on behalf of REDC) or communicated by Ms Pearse (or someone else on behalf of REDC) to senior officers within the Department and presumably, ultimately, to Mr Turner which led to the letter of 13 September 2011 later displaced by the letter of 23 September 2011.

41    It may be that the references to Ms Wright’s attendance at REDC Board meetings explains the communication of information about the dispute as between REDC and Mr Mason to Ms Wright with the result that there may not have been a communication as threatened in the email of 1 September 2011 but rather an airing of the relevant matters in a report to the Board (and Board discussion) when Ms Wright was present thus conveying all the relevant information to a departmental officer which may have led to action being taken on Tuesday, 13 September 2011, relatively proximate upon Ms Pearse’s demand of Thursday, 1 September 2011, and Mr Mason’s response on Friday, 2 September 2011 (that is, on the seventh working day later).

42    A communication in this way to a departmental officer may nevertheless effect a communication by REDC to the Department at or about the time of the Board meeting referred to by Ms Pearse in the email of 1 September 2011 and therefore at or about the time of the statement (contended threat) made to Mr Mason.

43    In Mr Setter’s letter of 14 October 2011, apart from observing that the requested documents could not be released as requested in order to protect the integrity of the investigation then underway, Mr Setter implicitly accepts that the Department is in possession of documents as requested by Mr Mason’s lawyers. The obstacle to production was not that the documents did not exist but that production might compromise the integrity of the investigation.

44    Mr Setter also made it plain in his letter that Mr Mason would be provided with an opportunity to respond to the allegations as part of the investigation and that he would be afforded procedural fairness “during the investigation process”. This seems to be a different position to that adopted by Mr Turner in his letter of 23 September 2011 which seemed to proceed “upon the basis that upon finalisation of the investigation and before any disciplinary action might be taken”, Mr Mason would be provided with “all relevant information regarding the grounds for discipline” and an opportunity to show cause as to why he ought not to be disciplined.

45    Mr Setter in his letter of 14 October 2011 also took the position that the correspondence from Mr Mason’s solicitors to Ms Wright “could be considered to amount to a contravention of the directions contained in the letter of 23 September 2011”. Mr Setter also reminded Mr Mason that any conduct which contravenes the directions “may be considered as part of the investigation into the allegations against [Mr Mason]”. The directions in the letter of 23 September 2011 require, or at least purport to require, Mr Mason not to contact or communicate with any persons, either internal or external to the Department, either directly or indirectly, “with regard to these matters”. The “matters” presumably refer to the investigation of “allegations” that Mr Mason has engaged in conduct in breach of the instruments referred to in Mr Turner’s letter of 23 September 2011. That letter then describes the allegations as relating to “some concerns as to how you have managed a number of issues regarding conflict of interest and other related matters”. That description is introduced with the word “specifically” although there is nothing specific contained within that collection of words. The communications between Mr Mason’s solicitors and Ms Wright are not communications with respect to those undefined “matters” although they may touch upon them.

46    They are communications with respect to reasonable inquiries made by or on behalf of Mr Mason relevantly related to Mr Mason’s belief (reasonably held, having regard to the responses which do not assert that the relevant parties do not have at least some of the documents sought by the requests) that REDC or the Department have documents (that is to say, likely to have or has had or is likely to have had control of documents) directly relevant to the question of whether, firstly, Mr Mason has a right to the relief he believes he may be entitled to obtain from the Federal Court in respect of conduct in contravention of s 50 of the ACL having regard to the conduct of REDC and Ms Pearse, and, secondly, a right to relief against Ms Wright and Mr Fletcher as persons “involved” in the contended contravention.

47    Whether Mr Mason’s belief, that he may have a right to obtain relief (which is reliant upon the scope and operation of s 50 of the ACL) against any of those prospective respondents, is a reasonable belief, turns upon the application (or not) of s 50 of the ACL to the conduct of the relevant prospective respondents, and the construction of s 50 of the ACL, in context.

48    On 14 October 2011, Mr Mason’s lawyers wrote to Mr Setter taking issue with aspects of Mr Setter’s contentions and advised that they had no intention of making any further contract with Ms Wright other than by way of service of an application for preliminary discovery. A more comprehensive response was sent on 17 October 2011 to Mr Setter. On 20 October 2011, Mr Mason’s lawyers wrote to Mr Ian Fletcher, the Director-General of the Department requesting that Mr Fletcher reconsider the refusal of the Department to provide access to the documents referred to in the letter to Ms Wright of 6 October 2011 (the work computer hard drive including Mr Mason’s personal file and departmental email file) and requesting Mr Fletcher to re-examine Mr Setter’s proposition that the requests of Ms Wright involved Mr Mason in a breach of the relevant directions. Mr Fletcher was also asked to examine whether the issue of the disputed debt of $330 formed any part of the allegations made against Mr Mason. On 21 October 2011, Mr Setter responded to the letter of 17 October 2011 re-asserting the importance of compliance with the directions. Mr Mason’s lawyers responded on 24 October 2011 re-asserting that the purpose of the approaches to Ms Wright had been directed to establishing matters relevant to Rule 7.23 of the Federal Court Rules. On 28 October 2011, Mr Mason’s lawyers wrote to Mr Fletcher setting out the elements of the complaint Mr Mason wished to have investigated concerning, among other things, the issues in relation to the suspension decision taken against him related, in his view, to issues concerning the disputed debt with REDC.

49    On 28 October 2011, Crown Law on behalf of the Department wrote to Mr Mason’s lawyers.

50    In that letter, Crown Law observes that Mr Mason’s lawyers have failed to articulate how a demand for repayment of a debt alleged to be owing would constitute undue harassment or coercion and thus a contravention of s 50 of the ACL. The point, of course, is that Ms Pearse’s email of 1 September 2011 does not simply contain a demand by a claimant creditor against a contended debtor but tells the contended debtor that if the debt is not paid as demanded, the claimant creditor will seek recovery of the debt from a third party that happens to be the employer of the contended debtor and moreover the matter will be taken up with the Director-General of the department in which Mr Mason is employed. Crown Law takes issue with any jurisdictional basis for an order against officers of the Department and asserts propositions relating to the operation of Rule 7.23 of the Federal Court Rules. Mr Mason’s lawyers responded to those matters on 4 November 2011.

51    On 6 December 2011, Mr Setter wrote to Mr Kelly (Mr Mason’s solicitor) although the letter was intended to be addressed to Mr Mason as the letter is, according to it subject matter, directed to Mr Mason. Mr Setter was attempting to tell Mr Mason that he had reviewed Mr Mason’s suspension from duty and was satisfied that it would be appropriate for Mr Mason to return to the Department “to temporarily undertake alternative duties”. Mr Setter again emphasised that his decision to temporarily alter Mr Mason’s duties did not constitute a punishment or a part of a disciplinary process. Mr Setter also said that allegations involving Mr Mason continued to be under consideration. Mr Setter’s letter then re-asserts the five directions reflected in the earlier two letters.

52    In Mr Mason’s affidavit of 9 December 2011 he says, at para 10, this:

At no time have I been contacted regarding the investigation which [the Department] has said is being carried out [as reflected in Mr Setter’s letter of 14 October 2011], nor have I ever been requested to assist with it and as at the time of hearing of this application [12 December 2011] it will be almost three months from the suspension commencing.

The prospective proceeding

53    Mr Mason contends that Ms Pearse’s email of 1 September 2011 contains “a threat” to escalate recovery from him or put pressure upon him to pay REDC a disputed debt (which Mr Mason describes as a minor disputed debt) of $330 by the following day, failing which steps would be taken by Ms Pearse (REDC) to recover the debt from the Department, and REDC would write to the Director-General, Mr Mason’s Chief Executive Officer, “requesting settlement”. No affidavits have been filed by Ms Pearse or anyone on behalf of REDC or Ms Wright. There is no material that suggests that the Department had any obligation to pay the amount in issue as between REDC and Mr Mason the subject of earlier exchanges between those parties. Mr Mason is entitled to reasonably conclude and thus reasonably believe, objectively, that Ms Pearse’s email contains a coercive threat made to him to provoke prompt payment of the amount of $330 in the face of an alternative (he might pursue) of continuing to dispute the basis and calculation of the claimed debt coupled with a demand being made by REDC upon the Department and the matter being referred to the Director-General of the Department.

54    Electing to demand payment of the disputed debt in the context of a threat, upon non-payment, to then demand the debt from the Department (where there is no identified obligation on the Department to otherwise pay Mr Mason’s disputed debt and thus a true third party) and refer the matter of non-payment to the Chief Executive of the contended debtor’s employer, may give rise to a reasonably held belief in Mr Mason that REDC’s conduct is undue harassment.

55    That conduct is said to be “in connection with” the supply of trade and investment promotional services by REDC (as a regional economic development corporation) to delegates (that is, businessmen and women, those seeking investment, those seeking project partners and those, among others, seeking to develop “commercial ties” with relevant participants in a target country or region) seeking to engage in trade and investment missions so as to develop relationships with business participants and government officials in order to advance projects or implement business strategies (see Exhibit 6). REDC provided such services to those delegates who participated in the Trade and Investment Mission to Yantai in China which was the subject of Mr Mason’s partial engagement giving rise to an obligation to contribute to the costs and expenses associated with “gifts and administration expenses” (see para 11, Mason affidavit, 9 December 2011).

56    Mr Mason contends that s 50(1)(a) is thus engaged.

57    Alternatively, the conduct is said to be in connection with the payment for goods or services. The demand made upon Mr Mason represents a demand for payment of a contribution to the costs and expenses incurred by REDC in the provision of trade and investment mission services, that is to say, a partial payment for goods or services provided by REDC to consumers of that service. The statement (threat) made to Mr Mason in Ms Pearse’s email arguably bears a connection with partial payment for goods or services provided by REDC. Mr Mason might reasonably conclude and thus reasonably believe, objectively, that Ms Pearse’s email containing the contended coercive threat is coercion in connection with the payment for goods or services provided by REDC thus engaging s 50(1)(b).

58    Mr Mason might reasonably believe that ss 50(1)(a) and 50(1)(b) are engaged, at least so far as a reasonable belief might properly be held.

The application and construction of s 50 of the ACL

59    Section 50 contains, relevantly, a prohibition upon a person using undue harassment or coercion in connection with the supply or possible supply of goods or services or the payment for goods or services. Section 50 falls within Part 3-1, (Division 5), Chapter 3 of Schedule 2, of the ACL which applies, as a law of the Commonwealth, in the regulation of the conduct of corporations: Part XI, Division 2, s 131 of the Act. A person includes a body politic or a body corporate, unless the contrary intention appears in the Competition and Consumer Act 2010 (Cth): s 22(1)(a), Acts Interpretation Act 1901 (Cth).

60    In the application of the Act to the body corporate REDC, the prohibition contained in s 50(1)(a) or (b) will apply to REDC if that corporation is, relevantly, a trading corporation formed within the limits of Australia: s 4 of the Act. Mr Mason does not contend that any other part of the definition of corporation in s 4 of the Act is relevant. REDC is a corporation formed within the limits of Australia.

61    Is there a basis on which the Court can be satisfied that Mr Mason reasonably believes that REDC is a trading corporation?

62    Reliance is placed upon Exhibits 4 and 9 as the foundation for the reasonable belief. Exhibit 4 is a print-out of a screen page from REDC’s website which describes REDC in these terms:

REDC is the peak economic development organisation for the Mackay-Isaac-Whitsunday Region. The region encompasses the Mackay Statistical Division, which includes the three local government areas of Mackay, Isaac and Whitsunday. Activities undertaken by REDC cover not only economic initiatives, but also social and environmental challenges.

Economic development … refers to the deliberate effort to improve the economy and quality of life of a specified geographic area by the process of promoting, initiating, supporting, and/or facilitating investment, population growth, job creation and retention and the improvement of social infrastructure.

                                [emphasis added]

63    Exhibit 9 is a press release which describes a promotional mission sponsored by REDC to China in the period 23 to 30 October 2010 concerning the delegation’s visit to Yantai. The description in the press release is said to suggest that trading activities in connection with organising and leading trade delegations to expose regional project proponents to new sources of private finance through foreign direct investment, form a significant or not insubstantial scale of activity of REDC.

64    The press release addresses the subject REDC Leads Delegation To China and is dated 19 October 2010. The press release says that the three components of the region earlier described (at [62]) will soon be on show when REDC leads a delegation of 12 participants on a business and investment mission to China. Ms Pearse is quoted as saying that the business and investment mission will expose regional project proponents to new sources of private finance through foreign direct investment and the main objective of the mission is to promote regional investment opportunities and develop commercial ties between Shandong Province and the Mackay-Isaac-Whitsunday Region. These promotional activities are said to be designed to stimulate bi-lateral trade and investment. The press release says that the business and investment mission itinerary has been developed by REDC to meet the investment goals of all persons participating in the mission. The agenda is said to include meetings with high-level national and local government officials and will provide networking opportunities and city/region briefings offering “unparalleled access to policy-makers, key government agencies and business leaders and Yantai – a prefecture-level city in north-eastern Shandong Province in the People’s Republic of China from the 23rd to 30th October”.

65    Mr Mason does not explain in either affidavit the basis on which REDC goes about the “trading activities” of organising and leading trade and investment missions. Presumably, the cost of mounting such a mission and implementing the itinerary of activities is fully costed and delegates pay a participation fee which covers and recoups REDC’s costs. However, Mr Mason does not depose to any of those matters. I infer that since REDC has pursued recovery of $330 from Mr Mason in recoupment of a contribution by him to the costs of “gifts and administration” expenses attributable to his engagement in activities associated with the Yantai delegation (although not a member of it) that REDC adopts a policy of costing, charging and thus recouping from delegates the costs of carrying on the activity of organising and leading trade and investment delegations to relevant places.

66    However, no foundation facts are provided about those matters and nor is there any facts which demonstrate that these activities form a significant or not insubstantial scale of activity on the part of REDC in the context of its economic development activities as part of its portfolio of activities which include addressing social and environmental challenges. There is no indication of the charges delegates must pay to REDC to participate in any particular trade mission or whether those charges reflect recoupment. While inferences can be drawn about relevant matters, those inferences must bed drawn from facts that support the inferences.

67    Accordingly, I am not satisfied that, objectively viewed, Mr Mason might reasonably believe that a remedy lies against REDC on the footing that REDC is a trading corporation.

68    The ACL has an extended application by operation of the Competition and Consumer Legislation Amendment Act 2011 (Cth) (Act No. 184 of 2011) (the “Amendment Act”). The Amendment Act received Royal assent on 6 December 2011 and the relevant amendments commenced retrospectively from 1 January 2011. Item 1 of Schedule 3 of the Amendment Act amends Item 36 of Schedule 5 of the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010 (Cth) (the “No. 2 Act”) so as to address the original error in the No. 2 Act and thus allow Item 36 of Schedule 5 to operate so as to amend s 6(3) of the Competition and Consumer Act 2010 (Cth) from 1 January 2011 such that s 6(3) of the Act must be taken to be in the following terms:

(3)    In addition to the effect that this Act, other than Parts IIIA, VIIA and X, has as provided by another subsection of this section, the provisions of Parts 2-1, 2-2, 3-1 (other than Division 3), 3-3, 3-4, 4-1 (other than Division 3), 4-3, 3-4 and 5-3 of the Australian Consumer Law have, by force of this subsection, the effect they would have if:

(a)    the provisions (other than sections 33 and 155 of the Australian Consumer Law) were, by express provision, confined in their operation to engaging in conduct to the extent to which the conduct involves the use of postal, telegraphic or telephonic services, or takes place in a radio or television broadcast; and

(b)    a reference in the provisions of Part XI to a corporation included a reference to a person not being a corporation.

                                [emphasis added]

69    The reference to Part 3-1 in bold in s 6(3) quoted above highlights that s 50 of the ACL falls within Part 3-1 of the ACL. REDC is not shown, on the material, to be a corporation for the purposes of the definition in s 4 as it is not clear that REDC is a trading corporation. It thus remains a person for the purposes of s 6(3). The communication of the contended threat was effected by means of an email dispatched electronically and Mr Mason might reasonably believe that the use of an email engages telephonic services by means of the relevant data lines and thus the email was a communication to a person involving the use of telephonic services for the purposes of s 6(3) of the Act.

70    Section 2 of Chapter 1 of the ACL contains a definition of the term “involved” in these terms:

involved: a person is involved, in a contravention of a provision of this Schedule or in conduct that constitutes such a contravention, if the person:

(a)    has aided, abetted, counselled or procured the contravention; or

(b)    has induced, whether by threats or promises or otherwise, the contravention; or

(c)    has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; or

    (d)    has conspired with others to effect the contravention.

71    Mr Mason contends that by reason of the conduct of REDC, a contravention of s 50 arises which gives rise to a range of possible remedies. They include these remedies.

72    Section 236 of the ACL provides that if a person suffers loss or damage because of the conduct of another person and the conduct contravenes a provision, relevantly, of Chapter 3, the claimant may recover the amount of the loss or damage by action against that other person, “or against any person involved in the contravention” [emphasis added].

73    Section 237 provides for compensation orders and confers a discretion upon the Court to make such orders as the Court thinks appropriate against a person who engages in conduct in contravention of Chapter 3 or “a person involved in that conduct” [emphasis added] where the claimant has suffered, or is likely to suffer, loss or damage by reason of the contravening conduct (s 237(1)).

74    Section 232 of the ACL provides that the Court may grant an injunction in such terms as the Court considers appropriate if satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute a contravention of Chapter 3 or conduct of attempting to contravene such a provision; aiding, abetting, counselling or procuring a person to contravene such a provision; or inducing a person to contravene such a provision; or being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or conspiring with others to contravene such a provision.

75    Having regard to the jurisprudence in relation to the notion of a person involved in a contravention, I am satisfied that Mr Mason reasonably believes, objectively, that Ms Pearse as Chief Executive Officer of REDC and the author of the email, is a person involved in an arguable contravention of the Act on the part of REDC, having regard to the authoritative principles identified in Yorke v Lucas (1985) 158 CLR 661 per Mason A.C.J., Wilson, Deane and Dawson JJ.

76    I am therefore satisfied that Mr Mason is a prospective applicant who reasonably believes that he may have the right to obtain relief in the Court from REDC and Ms Wright in respect of a contravention of s 50 of the ACL, for the purposes of Rule 7.23(1)(a).

77    Mr Mason asserts that he reasonably believes that he may have the right to obtain relief in the Court from Ms Wright and Mr Fletcher on the footing that they have implemented or given effect to the threat by acting upon it in a way that has given rise to Mr Mason’s suspension from employment and caused other loss and damage which conduct might be the subject of orders under ss 232, 236 and 237 of the ACL. That contention relies upon the proposition that by so acting, Ms Wright and Mr Fletcher are parties involved in the contravention by REDC.

78    Counsel for Mr Mason, Mr Francey, does not contest the proposition advanced by Mr Murdoch SC, counsel for Ms Wright and Mr Fletcher, that at all material times Ms Wright and Mr Fletcher were acting in their capacity as administrative officers of the State of Queensland. The State of Queensland is not a respondent to the Application and is not a prospective respondent to the prospective principal proceeding. Mr Francey sought to join the State of Queensland in the Application in the course of the hearing on the footing that Ms Wright and Mr Fletcher as officers of the State of Queensland are already represented before the Court and joining the State of Queensland would not give rise to any prejudice.

79    Section 2B of the Competition and Consumer Act 2010 (Cth) provides that Parts IV, XIB and other provisions of the Act which relate to those Parts, bind the Crown in the right of the State of Queensland, so far as the Crown carries on a business. It follows therefore that Part XI of the Act which renders the ACL a law of the Commonwealth, expressly, does not apply to the State of Queensland, and thus will not apply to officers of the State acting in their capacity as officers of the State of Queensland.

80    An indirect attraction of the Act to the conduct of Ms Wright and Mr Fletcher is said by Mr Francey to arise on the footing that Ms Wright and Mr Fletcher are persons involved in the contended contraventions by Ms Pearse and REDC. Section 75B of the Act is now confined in its application to references in Part VI to a person involved in a contravention of Parts IV, IVA, IVB, V or VC or of s 95AZN of the Act and thus has no application in respect of Part XI. Part XI, of course, gives effect to the ACL as a law of the Commonwealth and s 2 of the ACL contains a reference to the notion of a person involved in a contravention of a provision of the Schedule and relevantly, s 50 within Chapter 3 of the ACL (see [70] of these reasons).

81    Section 22(1)(a) of the Acts Interpretation Act 1901 provides that a reference to a “person” in an Act of the Commonwealth includes a body politic unless the contrary intention appears from the relevant Act. Section 2B of the Competition and Consumer Act 2010 contains a contrary intention by providing that Parts IV and XIB (and other provisions of the Act so far as they relate to those Parts) of the Act bind the Crown in the right of the State of Queensland so far as the Crown (there being no question of “an authority of the State” in issue) carries on a business. The provisions of the Act (s 2, Schedule 2) which determine whether a person is involved in a contravention of a provision of Schedule 2 and, in particular, Chapter 3 of Schedule 2, are not to be construed in a way that extends the application of the Act to persons acting in their capacity as officers of the State of Queensland as such a construction would defeat the express limitation of the application of the Act contained in s 2B. Such a result arises by parity of reasoning having regard to the observations of the High Court in Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at [24].

82    It follows that neither Ms Wright nor Mr Fletcher as officers acting within the scope of their authority on behalf of the State of Queensland can be parties to a contravention of the Act by REDC. There is no point joining the State of Queensland on the footing contended for by Mr Francey as a party to the proceeding, as the Act does not apply to the State of Queensland.

83    It follows that Mr Mason could not reasonably believe, objectively, that he may have the right to obtain relief in the Court from Ms Wright or Mr Fletcher or the State of Queensland in respect of a contended contravention of s 50 of the ACL, for the purposes of Rule 7.23(1)(a) of the Federal Court Rules.

That part of the controversy said to fall within the accrued jurisdiction of the Federal Court

84    Mr Mason contends that Mr Turner’s decision to suspend him from duty on normal remuneration (the subject of the initial letter of 13 September 2011 and then the replacement letter of 23 September 2011), made in reliance upon s 189(1) of the Public Service Act 2008 (Qld) (the “PSA”) is arguably invalid. That result arises, it is said, as a reasonable basis subsists for believing that the suspension decision is based upon Mr Mason’s dispute with REDC concerning the payment of the $330 amount (described by Mr Mason as the “disputed private debt”) having regard to the contended coercive threat of 1 September 2011, the timing of the suspension decisions and the observations of Mr Setter in the letter of 14 October 2011 refusing production of documents relating to the disputed debt on the ground that doing so would compromise the integrity of the inquiry.

85    Mr Mason contends that the suspension decision taken under s 189(1) of the PSA, within Chapter 6 of the PSA, is an aspect of “disciplinary action” and, in order to be valid, the decision-maker must hold a reasonable belief that Mr Mason is liable to discipline under a disciplinary law.

86    Mr Mason contends that any decision to suspend him from duty (although he contends that no ground arises to do so on any basis) could only have been taken under s 137 of the PSA which is directed to the suspension of a public service officer “other than as disciplinary action”. It follows, it is said, that since the decision-maker did not elect to expressly effect a suspension from duty “other than as disciplinary action” by acting under s 137, the suspension decision made under s 189(1) (falling within Chapter 6 of the PSA), can only be understood as a species of disciplinary action.

87    When the decision-maker acts under s 137, the decision-maker must reasonably believe that the “proper and efficient management” of the Department might be prejudiced if the officer is not suspended. Mr Mason says that since the decision-maker elected to act under s 189, the decision-maker was required to have formed a reasonable belief that Mr Mason “is liable” to discipline under a disciplinary law and if the foundation of that belief is REDC’s agitation with the Department of its dispute with Mr Mason concerning Mr Mason’s contended obligation to pay REDC $330, that matter could not provide the foundation for a reasonable belief that Mr Mason is liable to discipline under a disciplinary law.

88    For the purposes of Chapter 6, Mr Mason may be disciplined under s 188(1) of the PSA by the Chief Executive of the Department in a way that the Chief Executive “considers reasonable in the circumstances” provided that the Chief Executive is “reasonably satisfied” that a ground for taking disciplinary action is made out under s 187(1).

89    There are seven grounds under s 187(1). Mr Mason was told in each letter that allegations had been made that he had engaged in conduct that “could” be a breach of the PSA or one or other of two Codes of Conduct, and the allegations relate to “some concerns” as to how Mr Mason may have managed “conflict of interest issues and other related matters”. In the first letter, the decision-maker said that he reasonably believed that Mr Mason “may be subject to disciplinary action” [emphasis added] and in the second letter the same decision-maker said that he reasonably believed that Mr Mason “is liable to discipline under a disciplinary law” [emphasis added]. Plainly enough, the wrong statutory test was applied by the decision-maker on the first occasion in making the suspension decision, if the integers of s 189(1) were to be satisfied.

90    The second decision recites the statutory considerations under s 189(1).

91    The grounds under s 187(1) on which disciplinary action might be taken include whether the employee has been guilty of misconduct and whether the employee has contravened without reasonable excuse a provision of the PSA, a standard of conduct applying to the employee under a Code of Conduct approved under the Public Sector Ethics Act 1994 (Qld) or a standard of conduct under an approved standard of practice under that Act. Misconduct is defined to mean inappropriate or improper conduct “in an official capacity” or inappropriate or improper conduct “in a private capacity that reflects seriously and adversely on the public service”: s 187(4) PSA.

92    Apart from the contended grounds of challenge to the suspension decision of 23 September 2011 already mentioned, Mr Mason also says that since the departmental officers arguably acted upon the reference from REDC of the disputed debt matter in making the suspension decision, the conduct of Ms Wright and Mr Fletcher engages a contravention of s 50 of the ACL as parties relevantly “involved”. I have already concluded that Part XI of the Act does not apply to Ms Wright, Mr Fletcher or the State of Queensland and the approach to the construction of “involved” in s 2 of the ACL is inconsistent with the reasoning in Bass v Permanent Trustee Co. Ltd.

93    Mr Mason contends that he reasonably believes that he may have the right to obtain relief from Ms Wright and Mr Fletcher on the footing of the challenges to the suspension decision as described at [84] of these reasons. Neither Ms Wright nor Mr Fletcher made the suspension decision. The decision-maker however stands in the shoes of the Chief Executive of the Department in exercising the statutory power to suspend Mr Mason. The decision-maker is said to have failed to properly form the relevant state of reasonable belief for the purposes of s 189(1) of the PSA or to have otherwise improperly acted in reliance upon s 189(1) rather than s 137 of the PSA. Section 137 is expressed to operate in such a way that it does not limit or otherwise affect s 189: s 137(10) PSA.

94    Section 190(1) of the PSA provides that “[i]n … suspending a public service employee, a Chief Executive Officer must comply with … the principles of natural justice”. Section 190(2) provides that compliance with the principles of natural justice is not required in suspending the employee if the suspension is “on normal remuneration”. Thus, the decision-maker in suspending the employee, that is to say in making and taking the suspension decision, is not required to provide Mr Mason with procedural fairness in the exercise of the power under s 189(1). In practical terms, s 190(2) simply means that in exercising the suspension power under the statutory provision, the decision-maker is not required to first give Mr Mason notice of the relevant matters informing the proposed exercise of the statutory power nor provide him with an opportunity to respond to those matters. Section 190(2) may also arguably extinguish the procedural fairness bias rule which would otherwise apply in the making of a suspension decision affecting the rights or interests of an individual.

95    Section 190(2) does not however abrogate the rules of natural justice that apply once the suspension decision is made or exercised, and an investigation is underway.

96    In this case, Mr Mason was suspended from duty and thus deprived of the orthodoxy of his employment relationship (but for continuing remuneration) on 13 September 2011. He was directed to make himself available to assist in the investigation process put in place and told not to leave Mackay (except on weekends) without Mr Turner’s permission.

97    Since then, he has heard nothing with respect to the investigation of the allegations notwithstanding that Mr Turner by 13 September 2011 and then 23 September 2011 found himself in a position to reasonably believe that Mr Turner was liable to discipline under a disciplinary law. Virtually three months have expired between 13 September 2011 and the date of the hearing of the Application on 12 December 2011 and Mr Mason has not been told the content of the relevant matters giving rise to the reasonable belief held by the Chief Executive Officer (or his delegate) under s 189(1). Nor has Mr Mason yet been interviewed by the investigator or otherwise asked to assist in the investigation.

98    Presumably, the intellectual and financial resources available to the Department either internally or with the assistance of Crown Law are capable of being marshalled so as to provide Mr Mason, within three months, with a reasonably disciplined and focused appropriate statement of the matters of concern and the subject of the post-suspension decision investigation. Mr Mason says that there has been no engagement at all in relation to the investigation since 13 September 2011.

99    Mr Mason also contends that these matters of the validity or otherwise of the suspension decision give rise, he says, to a reasonable belief that he may have a right to a remedy in the Federal Court (declarations and injunctions) arising out of one justiciable controversy in which relief is sought in the Federal Court in the exercise of federal jurisdiction under the Competition and Consumer Act 2010 (Cth) against REDC and Ms Pearse and relief is also sought against the Chief Executive of the Department in respect of the suspension decision which is bound up with the factual controversy of whether the decision-maker acted in reliance upon the disputed debt question; whether the resolution of that factual controversy properly grounds a reasonable belief in the Chief Executive Officer that Mr Mason was, at the time of the making of the suspension decision, liable to discipline under a disciplinary law and whether the suspension decision engages disciplinary action or not.

100    Jurisdiction is conferred on the Federal Court of Australia in any matter arising under the Competition and Consumer Act 2010: s 86 of the Act. The Federal Court does not have jurisdiction to hear and determine, independently of any federal question, a controversy between Mr Mason and his employer as to the exercise of a statutory power of suspension under s 189(1) of the PSA.

101    However, a matter may include a cause of action arising under non-federal law. In Fencott v Muller (1983) 152 CLR 570, Mason, Murphy, Brennan and Deane JJ said this at p 606 and following:

The proposition that a matter may include a cause of action arising under a non-federal law, though denied in the dissenting judgments, is the ratio decidendi of Philip Morris. It follows that the ambit of a matter arising under a federal law may extend beyond claims which arise under that law or which are to be determined by reference to that law alone. As Windeyer J said in Felton v Mulligan:

“The existence of federal jurisdiction depends upon the grant for an authority to adjudicate rather than upon the law to be applied or the subject of adjudication”.

Subject to any contrary provision made by federal law and subject to the limitation upon the capacity of non-federal laws to affect federal courts, non-federal law is part of the single, composite body of law applicable alike to cases determined in the exercise of federal jurisdiction and to cases determined in the exercise of non-federal jurisdiction. …

It follows also that, though the facts upon which a non-federal claim arises do not wholly coincide with the facts upon which a federal claim arises, it is nevertheless possible that both may be aspects of a single matter arising under federal law. Mason J in Philip Morris … gave an indication of a non-federal claim which would not be severable:

“Likewise, it may appear that the attached claim and the federal claim so depend on common transactions and facts that they arise out of a common substratum of facts. In instances of this kind a court which exercises federal jurisdiction will have jurisdiction to determine the attached claim as an element in the exercise of its federal jurisdiction”.

…

Perhaps it is not possible to devise so precise a formula that its application to the facts of any controversy would determine accurately what claims are disparate and what claims are not. Whatever formula be adopted as a guide – and the formula of “common transactions and facts” is a sound guide for the purpose – it must result in leaving outside the ambit of a matter a “completely disparate claim constituting in substance a separate proceeding” (per Barwick CJ in Felton v Mulligan) …

Claims which are described by these or similar phrases cannot be determined by exercise of the judicial power referred to in s 71 of the Constitution, for that power can be exercised only to determine those matters in which federal jurisdiction is or can be conferred under Ch. III of the Constitution. For precisely this reason, however, it is necessary to attribute to “matter” in ss 75 and 76 of the Constitution a connotation which does not deny to federal judicial power its primary character, that is, the power of a sovereign authority “to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property”. …

The unique and essential function of the judicial power is the quelling of such controversies by ascertainment of the facts, by application of law and by exercise where appropriate of judicial discretion. In identifying a s 76(iii) … matter, it would be erroneous to exclude a substantial part of what is in truth a single justiciable controversy and thereby to preclude the exercise of judicial power to determine the whole of the controversy.

102    Their Honours also said this in Fencott v Muller at p 608:

What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships. The scope of a controversy which constitutes a matter is not ascertained by reference to the proceedings which a party may institute, but may be illuminated by the conduct of those proceedings and especially by the pleadings in which the issues in controversy are defined and the claims for relief are set out. But in the end, it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter.

103    Their Honours also said this at pp 608 and 609:

A judicial power which is not exercised to determine the whole of a controversy is, generally speaking, not appropriately and conveniently expressed. Not appropriately, because the controversy is not quelled: not conveniently, because the parties – the principal beneficiaries of the exercise of judicial power – must litigate anew to have the outstanding questions and issues determined.

…

The power judicially to decide the whole of a dispute is inconsistent with a limitation which would restrict the court to resolving only the federal claim and what is necessary for that purpose. … The judicial ascertainment of facts in a particular controversy would be bedevilled by the possibility of divergent findings. … The judicial award of effective remedies in resolution of a controversy would be impaired, especially in cases where remedies are discretionary or reciprocal .

…

However, federal judicial power is attracted to the whole of a controversy only if the federal claim is a substantial aspect of that controversy. A federal claim which is a trivial or insubstantial aspect of the controversy must, of course, itself be resolved in federal jurisdiction, but it would be neither appropriate nor convenient in such a case to translate to federal jurisdiction the determination of the substantial aspects of the controversy from the jurisdiction to which they are subject in order to determine the trivial or insubstantial federal aspect. Again, impression and practical judgment must determine whether it is appropriate and convenient that the whole controversy be determined by the exercise of federal judicial power.

                                [emphasis added]

104    Ordinarily, the question of whether a non-federal matter forms part of a single justiciable controversy arises in circumstances where A sues, for example, B, C and D and asserts against all respondents relief based upon federal law and relief arising out of the application of non-federal law in the context of a factual controversy in which there are common transactions and facts. In the present Application, Mr Mason contends that he has a reasonable belief that he may have the right to obtain relief in the Federal Court from prospective respondents A and B in respect of a federal matter and relief from prospective respondents C and D in respect of a non-federal matter. There are no common claims for relief against all prospective respondents based upon federal and non-federal matters. There is a segmentation of claims for relief arising out of the application of federal law to relevant facts as against prospective respondents A and B and a claim for relief against prospective respondents C and D having regard to the exercise of statutory power under a State Act which, in the determination of those questions, engages some common facts relating to the determination of questions arising under federal law. Notwithstanding the differential relief to be sought, Mr Mason contends that there is a single underlying controversy affected by the question of the disputed debt.

105    In Re Wakim; Ex parte McNally (1999) 198 CLR 511, the High Court considered the nature of a single justiciable controversy in the context of three separate proceedings. In one action Mr Wakim commenced proceedings against the Official Trustee of the estate of a person whose estate owed Mr Wakim a substantial sum. Mr Wakim sought relief under s 176(2) of the Bankruptcy Act 1966 (Cth) in relation to the conduct of the Official Trustee in connection with the conduct and settlement of proceedings in the administration of the bankrupt’s estate. In the conduct of those proceedings, the Official Trustee retained a firm of solicitors and counsel. In two further entirely separate actions, Mr Wakim brought proceedings against counsel and later brought proceedings against the solicitors simply for negligence. The question to be determined was whether the claims brought against counsel and the solicitors were distinct and unrelated non-federal claims to the claims made by Mr Wakim against the Official Trustee under the provisions of the Bankruptcy Act in the exercise of the Court’s jurisdiction conferred under that Act.

106    On that question, Gummow and Hayne JJ said this:

135.    It must now be regarded as established that the jurisdiction of a federal court having jurisdiction in a matter arising under a law made by the Parliament is not “restricted to the determination of the federal claim or cause of action in the proceeding but extend[s] beyond that to the litigious or justiciable controversy between parties of which the federal claim or cause of action forms part”. (Stack v Coast Securities (No. 9) Pty Ltd (1983) 154 CLR 261 at 290 per Mason, Brennan and Deane JJ)

107    Their Honours then noted at [135] the adoption in Stack v Coast Securities (No. 9) Pty Ltd at p 290 of the observations of the majority in Fencott v Muller noted at [102] of these reasons.

108    At [136], [137] and [138], Gummow and Hayne JJ said this:

136.    The decisions in this Court concerning what has been called the “accrued jurisdiction” of the Federal Court have arisen in cases where the claims have been made in one proceeding. In the present case there are three separate proceedings – against the Official Trustee, against the solicitors and against Mr Darvall. The pleadings in the three proceedings do not allege that any of the claims is dependent on another, at least not in the sense of any being a claim in which success is alleged to depend upon the result in another of the claims. … It is said, however, that the claims all arise out of a single set of transactions (that set being defined to include all aspects of the conduct of the [Official Trustee’s litigation on behalf of the estate]). Is there, in the circumstances, a single justiciable controversy? If there is, then the Federal Court has jurisdiction in the whole matter.

137.    The bringing of three separate proceedings and the joining of different parties in each of those proceedings would ordinarily suggest (and perhaps very strongly) that there is more than one matter. If that were so, it would follow that the question of jurisdiction would have to be resolved separately in each proceeding and without regard to the existence of the other proceedings. Jurisdiction for each proceeding would then depend upon it being shown to be a matter arising under a law made by the Parliament.

138.    It must be taken to follow from the Court’s decisions in Philip Morris, Fencott and Stack, however, that the identification of the justiciable controversy between parties is not determined only by the considerations of there being separate proceedings and different parties in the one court. And in some circumstances a single matter can proceed through more than one court.

109    At [139], their Honours noted that the central task is to identify the justiciable controversy which would normally be undertaken paying close attention to the pleadings and the factual basis of each claim. Their Honours at [140] noted the observations in Fencott that “in the end, it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter”. Their Honours observed at [140] that:

Considerations of impression and practical judgment are relevant because the question of jurisdiction usually arises before evidence is adduced and often before the pleadings are complete. Necessarily, then, the question will have to be decided on limited information.

                                [emphasis added]

110    Their Honours also said this at [140]:

But the question is not at large. What is a single controversy “depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships” [quoting Fencott at p 608 – see [102] of these reasons]. There is but a single matter if different claims arise out of “common transactions and facts” or “a common substratum of facts” [quoting Mason J in Philip Morris (1981) 148 CLR 457 at 512], notwithstanding that the facts upon which the claims depend “do not wholly coincide” [Fencott at p 607]. So, too, there is but one matter where different claims are so related that the determination of one is essential to the determination of the other. … Conversely, claims which are “completely disparate [quoting Barwick CJ in Felton v Mulligan (1971) 124 CLR 367 at 373], “completely separate and distinct” [quoting Murphy J in Philip Morris at 521] or “distinct and unrelated” [quoting Stephen, Mason, Aickin and Wilson JJ in Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 482] are not part of the same matter.

111    At [143] and [145], Gummow and Hayne JJ said this:

143.    The applicants submitted that the test should be qualified by restricting cases of accrued jurisdiction to those in which no party was added in reliance upon accrued jurisdiction. That is, the applicants contended that there must be some federal claim against every respondent in the proceedings.

…

145.    As we have said, the bringing of separate proceedings and the joining of different parties will often be important facts in deciding whether there is a single justiciable controversy for the purposes of Ch III of the Australian Constitution. But there is no basis in principle for concluding that there can never be accrued jurisdiction where a new party is joined. To adopt such a rule would mean that third party proceedings could never be brought in a federal court unless those third party proceedings were founded in some federal claim. If … the “justiciable controversy” refers (in part, at least) to the factual dispute between them, there is no warrant for holding that federal jurisdiction ends as soon as a new party (against whom no federal claim is made) is added.

                                [emphasis added]

112    The High Court observed that the three cases in issue arose out of one set of events and of most significance was the fact that the damage Mr Wakim alleged he had suffered as a result of the contended breaches by the Official Trustee, the solicitors and Mr Darvall was in each case the loss of what he might have recovered in the bankruptcy had the claims against the particular defendant in the relevant proceedings been prosecuted differently. There was, but a single claim, for damages to be pursued against all three parties. Judgment against one would diminish the amount to be recovered from the others and in those circumstances the claims arose out of a common substratum of facts in each proceeding thus giving rise to a single justiciable controversy within federal jurisdiction notwithstanding that the claims against the solicitors and Mr Darvall were confined to claims of negligence and did not engage any claim for relief under any provision of the Bankruptcy Act.

113    Re Wakim; Ex parte McNally, of course, is authority for the proposition that it is not constitutionally competent for State judicial authority to be conferred upon federal courts.

114    In this Application for preliminary discovery, necessarily made in circumstances of limited information informing the question of jurisdiction (see [109] of these reasons) as no information has been provided to Mr Mason since the making of the suspension decision, Mr Mason contends that he “reasonably believes” that he “may” have a right to obtain relief in the Federal Court from Mr Fletcher as Director-General of the Department as to the validity of the exercise of the power under s 189(1), in the Court’s exercise of federal jurisdiction in the quelling of a single justiciable controversy, having regard to the relationships between the prospective parties to the prospective proceedings; the conduct giving rise to the disputed debt; the conduct concerning the dispute of the debt; the conduct of REDC in seeking to secure payment of the disputed debt by the email of 1 September 2011 expressing an intention, in circumstances of non-compliance by Mr Mason, to recover the debt from the Department with a reference of the matter to the Director-General personally; the purported exercise of the suspension power by the decision-maker seven working days later; the substitution of the defective decision with another decision relatively shortly thereafter; and, the apparent role the dispute as to the $330 played in the “reasonable belief” of the decision-maker for the purposes of s 189(1) and the subsequent investigation of Mr Mason’s conduct, in part at least related to the matter of the disputed debt, as reflected in the letter from Mr Setter on 14 October 2011.

115    I am satisfied that there is a sufficient substratum of fact connecting the conduct of the parties having regard to the matters already mentioned such that Mr Mason might reasonably believe that he may have a right to obtain relief in the Federal Court in respect of the accrued matter in the exercise of federal jurisdiction in respect of the entire controversy with a view to quelling that controversy. In such circumstances, the quelling of the entire controversy engages an exercise of federal jurisdiction in the entire controversy.

116    Mr Ian Fletcher is the Director-General of the Department and Chief Executive under s 10 of the PSA. He is the accountable officer within s 65 of the Financial Accountability Act 2009 (Qld). He exercises the management responsibilities referred to in s 98 of the PSA which includes responsibility for discipline and termination of employment of public service employees in the Department. Mr Fletcher by reason of his position as Chief Executive of the Department is in a position to assert management responsibility, authority and control over documents and relevant materials which record and reflect the expression of the exercise of departmental functions, powers and responsibilities. While such documents and materials may well be “owned” by the State of Queensland, as Mr Murdoch SC contends, I do not accept that Mr Fletcher, for the purposes of this Application, is not in a position to assert or exercise control over the relevant documents. I infer that by force of his position, Mr Fletcher can call for the relevant files, call for reports and, if necessary, examine all relevant materials, letters and other documents, in order to satisfy himself that the functions, powers and responsibilities of the Department have been properly discharged. Mr Fletcher, of course, can only exercise such “control” when exercising the role of Chief Executive and discharging the functions of Chief Executive of the Department. It is the capacity in which Mr Fletcher acts that is important. Mr Fletcher is not a respondent to the Application or a prospective respondent to proceedings simply as a citizen.

117    I am satisfied that Mr Mason has made reasonable inquiries of REDC and Ms Pearse for documents and information; that REDC and Ms Pearse appear to have or are likely to have relevant documents and information (including, by reason of the letter from McKays Solicitors on behalf of REDC dated 24 October 2011); and that Mr Mason is not in a position to decide whether to commence a proceeding for the particular relief. I accept that Mr Mason reasonably believes that REDC and Ms Pearse have, had or are likely to have had, documents in their control directly relevant to the question of whether Mr Mason has a right to obtain relief arising out of the postulated contravention of s 50 of the ACL and I accept that inspection of the documents would assist in making the decision contemplated by Rule 7.23(1)(a) and (b). Being satisfied of those matters, the Court will order REDC and Ms Pearse to give discovery to Mr Mason of the documents contemplated by Rule 7.23(1)(c)(i) as framed by the Orders.

118    I am also satisfied (and accept that Mr Mason reasonably believes) that Mr Fletcher in his capacity as Director-General and Chief Executive of the Department of Employment, Economic Development and Innovation, of the State of Queensland, has or is likely to have (within the scope of his authority and decision-making control) documents directly relevant to the question of whether Mr Mason has a right to obtain the postulated relief in relation to the proper exercise of the power conferred upon the Chief Executive under s 189(1) of the PSA in making the suspension decision (particularly having regard to Mr Setter’s letter dated 14 October 2011 (paras 1 and 2) and that inspection of the documents the subject of the Orders would assist Mr Mason in making a decision whether to start a proceeding in the Court to obtain the postulated relief.

119    I accept that Mr Mason has made reasonable inquiries of the Department and does not have sufficient information to determine whether to start a proceeding to obtain the postulated relief as to the validity of the exercise of the power.

120    The postulated relief is said to be relief that Mr Mason reasonably believes he may have the right to obtain against the prospective respondent, Mr Fletcher, in his capacity as the Chief Executive of the Department and the person responsible under s 189(1) of the PSA for making the impugned decision ultimately referenced in the letter of 23 September 2011 although purportedly taken by the letter of 13 September 2011. The Chief Executive may delegate the exercise of the statutory power and thus Mr Turner purported to exercise the power (as explained in Mr Turner’s letter of 13 September 2011) and did so again on 23 September 2011 as the delegate of the statutory decision-maker under s 189(1). A question may arise as to whether the actual decision-maker, Mr Turner, ought to be the prospective respondent together with the State of Queensland, so as to bind those parties to the relief sought, namely declarations and injunctions. I accept that Mr Mason may reasonably believe that when the delegate exercised the power under s 189(1), he did so standing in the shoes of the Chief Executive for the purposes of s 189(1), in which event, Mr Fletcher as the holder of the Office of Chief Executive under the PSA is a person against whom, in a representative capacity, a declaration may be made as to the legality of the exercise of the statutory power. It seems to me that the State of Queensland also ought be a respondent to the present Application and a further prospective respondent. Nevertheless, Mr Fletcher remains a prospective respondent and a respondent to the present Application, in his capacity as Chief Executive of the Department on behalf of the State of Queensland, against whom relief might ultimately be granted on the merits and thus Mr Fletcher in his representative capacity is a prospective respondent in the sense contemplated by Rule 7.23.

121    Accordingly, the Court will order that:

1.    MWREDC Limited (“REDC”) and Narelle Pearse give discovery to Frank Mayne Mason (“Mason”) of the following documents:

1.1    any Board Paper (or Report or Memorandum submitted to or prepared for the Board of REDC) or an entry in a Board Paper or Report or Memorandum so prepared concerning the subject matter of the attendance of Mason at activities associated with a “REDC 2010 Trade & Investment Mission” to the People’s Republic of China (the “Mission”) including but not limited to:

(a)    any invitation to Mason or permission given to Mason to attend the Mission or a document authorising him to attend the Mission (an example of which is a Registration Form for participation in Mission activities);

(b)    any document disclosing the cost of attendance at activities associated with the Mission given to Mason prior to the commencement of the Mission;

(c)    any invoice or other bill sent to Mason regarding his attendance at any activities associated with the Mission;

(d)    any minutes or briefing papers concerning payment by Mason of any invoice or bill in respect of his attendance at activities associated with the Mission or any of Mason’s subsequent dealings with REDC or Ms Pearse in connection with the Mission;

1.2    any letters, emails or other communications between REDC and Mason or between REDC and the Department of Employment, Economic Development and Innovation regarding payment by Mason of any invoice or bill concerning his attendance at any activities associated with the Mission or any of Mr Mason’s subsequent dealings with REDC or Ms Pearse in connection with the Mission;

1.3    any memos, file notes, records of telephone conversations or other documents of REDC or Ms Pearse concerning Mason and matters connected with the payment or claims for payment of any invoice or bill relating to Mason’s attendance at any activities associated with the Mission or any of Mr Mason’s subsequent dealings with REDC or Ms Pearse in connection with the Mission.

2.    Ian Fletcher (the “Chief Executive”), in his capacity as Chief Executive of the Department of Employment, Economic Development and Innovation of the State of Queensland, give discovery to Frank Mayne Mason (“Mason”) of any document or copy of a document falling within the description of documents referred to in Order 1, in the possession of the Department of Employment, Economic Development and Innovation of the State of Queensland.

122    No Order will be made in relation to Ms Wright.

123    In relation to the question of costs, the letters comprising Exhibit 1, demonstrate that Mr Mason agitated with REDC for the production of the documents described at [121] and foreshadowed the possibility that an application would be made to the Federal Court under Rule 7.23 making express reference to the postulated belief of Mr Mason that he reasonably believed that he may be entitled to an order in the Federal Court in relation to a contended contravention of s 50 of the ACL. Had the documents been provided (which are confined to the question of the dispute in relation to the debt matter) an application would not have been necessary in respect of a question which involves a dispute as to $330. REDC and Ms Pearse will be ordered to pay the applicant’s costs of the Application.

124    No Order for costs will be made against Mr Fletcher. Had the applicant joined the State of Queensland as a party to the Application a question would have arisen as to whether an Order for costs ought to be made against the State of Queensland. That question does not arise and no Order ought to be made against Mr Fletcher, notwithstanding that in all relevant respects he is a respondent to the Application in his capacity as the Chief Executive acting within the scope of his role on behalf of the State of Queensland.

125    A question arises as to whether an Order for costs ought to be made against Mr Mason in respect of the costs incurred by Ms Wright. Ms Wright’s costs are, in effect, joint costs with the representation afforded to Ms Wright and Mr Fletcher. Having regard to the requests made of the Department for the production of the documents the Department might have within its possession (and within the control of the Chief Executive) relating to the dispute between REDC and Mr Mason, and the election by the Department to provide no information for three months to Mr Mason about any aspect of the matters of concern to the Department which gave rise to the suspension decision purportedly first implemented on 13 September 2011, I am satisfied that Mr Mason acted reasonably in seeking to obtain from the Department copies of the documents the Department might have from REDC concerning the dispute over $330 between REDC and Mr Mason which may have been influential in the exercise of the statutory power to suspend Mr Mason’s employment.

126    No Order for costs will be made in favour of Ms Wright against Mr Mason.

127    Mr Francey on behalf of Mr Mason submits that Mr Mason is willing and undertakes to provide security for the costs incurred in providing discovery. The parties will be directed to caucus about the terms and conditions of that security and a further Order will be made that the respondents have liberty to apply in relation to that matter. The Orders for the giving of discovery will be made conditional upon Mr Mason’s provision of appropriate security for the costs of doing so.

128    I admit into evidence the affidavit of Robert Djukic sworn 9 December 2011 and the affidavit of Katherine Anne MacKenzie sworn 9 December 2011. I dismiss the objections to each affidavit to the extent that para 4 of each affidavit relies upon information provided to each deponent and the deponents swearing to a belief in that information.

Associate:

Dated:    23 December 2011